The Torah as a Place of Refuge: Biblical Criminal Law and the Book of Numbers (Forschungen Zum Alten Testament 2.Reihe) 9783161541384, 9783161543524, 3161541383

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Forschungen zum Alten Testament 2. Reihe Herausgegeben von Konrad Schmid (Zürich) · Mark S. Smith (New York) Hermann Spieckermann (Göttingen)

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Francesco Cocco

The Torah as a Place of Refuge Biblical Criminal Law and the Book of Numbers

Mohr Siebeck

Francesco Cocco, born 1975; studied theology at the Theological Institute of Assisi (Italy) and biblical exegesis at the Pontifical Biblical Institute (Rome), where he earned a doctorate in Sacred Scriptures (2006); currently Professor of Old Testament Exegesis (Pentateuch) at the Pontifical Urbaniana University (Rome, Italy).

ISBN 978-3-16-154138-4 / eISBN 978-3-16-154352-4 ISSN 1611-4914 (Forschungen zum Alten Testament, 2. Reihe) The Deutsche Nationalbibliothek lists this publication in the Deutsche Nationalbibliographie; detailed bibliographic data are available on the Internet at http://dnb.dnb.de.

© 2016 by Mohr Siebeck Tübingen. www.mohr.de This book may not be reproduced, in whole or in part, in any form (beyond that permitted by copyright law) without the publisher’s written permission. This applies particularly to reproductions, translations, microfilms and storage and processing in electronic systems. ”BWHEBB, BWHEBL, BWTRANSH [Hebrew]; BWGRKL, BWGRKN, and BWGRKI [Greek] PostScript® Type 1 and TrueType fonts Copyright ©1994–2015 BibleWorks, LLC. All rights reserved. These Biblical Greek and Hebrew fonts are used with permission and are from BibleWorks (www.bibleworks.com).” The book was printed on non-aging paper by Laupp und Göbel in Gomaringen and bound by Buchbinderei Nädele in Nehren. Printed in Germany.

In loving memory of my father, Tonino ‫זיכרונו לברכה‬

Acknowledgements I do not think it is an exaggeration to claim that the acknowledgements represent the most welcome part of the composition of a book in that they give the author the opportunity to look back and ideally retrace the path that he has taken. A path generally undertaken in solitude, but a solitude inhabited by thousands of faces of those who – even unknowingly – have contributed to the final result in a more or less substantial way. The book which the reader is preparing to read represents almost entirely the fruit of the period of research which I carried out at the University of Harvard as visiting scholar in the Near Eastern Languages and Civilizations Department. The months spent in “Harvard Yard” were a precious period in my life during which I was able to devote myself totally to study in a highly fitting environment which is well suited to research. My gratitude for this magnificent opportunity goes first of all to Professor Peter Machinist, who had the kindness to invite me, following the various preparatory stages to my arrival at Cambridge, MA with great friendship and courtesy. I still remember the wonderful moments spent together during which I had the opportunity to share the stages of my research with him and to listen to his illuminating views. My heartfelt thanks goes also to Professor Peter Dubovský for having set up the initial encounter with Peter Machinist. This period at Harvard could not have been achieved without the crucial encouragement of two persons dear to me whom I am pleased to join together in gratitude: Fr. Marco Tasca, Minister General OFMConv, who not only permitted me to transfer temporarily to the USA in order to realise this project, but has supported it with readiness and foresight right from the beginning and constantly been there for me with his encouragement; and Professor Alberto Trevisiol, Rector Magnificus of the Pontifical Urbaniana University who authorised me to accept the invitation of the NELC-Harvard and allowed me to devote myself entirely to research and study during the first semester of the academic year 2014–2015. Heartfelt thanks also to Professors Konrad Schmid, Mark S. Smith and Hermann Spieckermann who have welcomed my research by encouraging its publication in the prestigious series Forschungen zum Alten Testament as also to Dr. Henning Ziebritzki who accepted this publication. In gratitude and friendship, I would particularly like to remember Konrad, who was the first

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Acknowledgements

contact with the editors of the series and guided me through the various stages with readiness and courtesy. I am also grateful to Dr Michael Tait for his prompt and expert translation of the manuscript into English. I would like to reserve really special thanks for Professor Jean Louis Ska, my Doktorvater and good friend, who, during the entire period of my residence in Harvard never allowed me to feel the absence of his presence and support. His wise and expert advice was a superb stimulus for me to improve the work and strengthen the argument. Finally, affectionate thanks to my own family: my mother, Luciana, my sister, Paola, with her husband, Massimiliano, and my grandmother Angelina, who, even from afar, shared daily in my work, accompanying me with love step by step. Undoubtedly, the closest presence has been that of my father, Tonino, to whose beloved memory this book is dedicated: may his soul rest in the peace of the Lord. Together with my own family, I am also grateful to my religious family, the Franciscan community of the SS. Apostoli who have followed me affectionately during my period of absence.

January 28th, 2015

Francesco Cocco

Table of Contents Acknowledgements .......................................................................................... VII Introduction ......................................................................................................... 1

Chapter I: The Law in the Bible and in the Ancient Near East ....... 5 1. “Biblical law”: ambiguities, problems and challenges of a definition........... 5 1.1. “Does it make sense to speak of ‘biblical law’?”. Epistemological problems ........................................................................ 5 1.2. Methodological difficulties: the problem of the sources ......................... 7 1.2.1. Comparison with roman law .......................................................... 7 1.2.2. Comparison with anglo-saxon law................................................. 8 1.3. Juridical models of the 19th century: between ‘evolutionism’ and ‘diffusionism’ .................................................................................... 9 1.3.1. The ‘evolutionist’ model ................................................................ 9 1.3.2. The ‘diffusionist’ model .............................................................. 10 1.4. The authority of the law and the law-text relationship .......................... 11 1.4.1. The authority of the law according to the statutory model .......... 11 1.4.2. The authority of the law according to the customary model ....... 12 1.4.3. The law-text relationship in the two models ................................ 13 1.4.4. The affirmation of statutory law in Europe.................................. 14 1.5. The law of the Ancient Near East .......................................................... 15 1.5.1. The principal Mesopotamian juridical collections ....................... 16 1.5.2. The juridical tradition of ancient Egypt ....................................... 17 1.5.3. General considerations on the legislative collections of the ANE ................................................................................... 19 1.5.3.1. Statutory interpretation: the law of the ANE as positive or prescriptive law ........................................ 20 1.5.3.2. Customary interpretation of the laws of the ANE .......... 21 1.5.4. Elements of continuity between the laws of the ANE and biblical law ............................................................................ 24 1.5.5. Peculiar elements of biblical law compared with the laws of the ANE ................................................................................... 26

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1.6. “What, then, is biblical law?” An attempt at synthesis .......................... 27

Chapter II: Biblical Criminal Law and the Book of Numbers ....... 30 1. Criteria distinguishing ‘civil law’ and ‘criminal law’ in the biblical legislative texts ...................................................................... 31 1.1. The state of the art in recent literature ................................................... 31 1.2. A proposal to distinguish the norms based on the nature of conflict ............................................................................................... 32 2. Criteria for the cataloguing and structuring of biblical laws ....................... 34 2.1. Situational or ‘external’ criterion of cataloguing................................... 35 2.2. ‘Internal’ criterion of cataloguing of the laws ....................................... 36 3. The penal legislation in the book of Numbers ............................................... 38 3.1. The legislative texts of the book of Numbers: general considerations ............................................................................ 38 3.2. The general structure of the book of Numbers ...................................... 40 3.3. The organisation of the legislative material of the book of Numbers ......................................................................... 41

Chapter III: “Repetition or Reformulation?”. The Curious Case of Num 35:9–34........................................................ 45 1. The pericope in its literary context: demarcation and structure .................. 45 1.1. The beginning of the pericope ............................................................... 45 1.2. The conclusion of the pericope .............................................................. 47 1.3. The internal articolation of the pericope: a structural hypothesis.......... 50 2. Exegetical analysis of Num 35,9–34 ............................................................. 52 2.1. Injunction to designate “cities of refuge” (vv. 10b–15) ........................ 52 2.1.1. The meaning of jl'q.mi .................................................................... 55 2.1.2. The meaning of xcr ...................................................................... 57 2.1.3. The meaning of hggvb and its specific function in Num 35,9–34 ........................................................................... 62 2.1.4. The meaning of the syntagma ~dh lag ......................................... 69

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2.1.5. The interpretation of Num 35,12 and its consequences for the hermeneutics of the whole pericope ................................ 72 2.1.6. The meaning of hd"[e ...................................................................... 76 2.1.7. The meaning of rGE  and  bv'wOT .......................................................... 81 2.1.8. The conclusion of Num 35,15 ...................................................... 84 2.2. Determination of the different examples of homicide and their regulation (vv. 16–29) .................................................................. 89 2.2.1. The particularly wilful case, or malicious murder (vv. 16–21) ................................................................................... 90 2.2.2. The unintentional case, or manslaughter (vv. 22–23) ................. 96 2.2.3. The key function of Num 35,24 ................................................... 98 2.2.4. Procedure to be adopted in the case of homicide (vv. 24–29) ................................................................................... 99 2.3. Procedural clarifications and theologico-religious conclusion (vv. 30–34) ........................................................................................... 107 2.3.1. Procedural clarifications (vv. 30–32) ......................................... 108 2.3.1. Theologico-religious conclusion (vv. 33–34) ............................ 110

Chapter IV: “From Law to Law”. Understanding the Novelty of Num 35,9–34 in the Light of Selected Biblical Criminal Laws ............................................................................ 113 1. Comparison with thematically related texts ................................................ 114 1.1. The case of homicide in the mishpat of Ex 21,12–14.......................... 114 1.2. The legislation in the cities of refuge in Deut 19,1–13........................ 123 1.2.1. The relationship between Deut 19,1–13 and Deut 4,41–43 ....... 123 1.2.2. The internal structure of Deut 19,1–13 ...................................... 124 1.2.3. The introduction of the legislation on the cities of refuge (Deut 19,1–3) ............................................................................. 125 1.2.4. Purpose and demarcation of the area of the validity of the law (Deut 19,4–10) .......................................................... 126 1.2.5. Regulation of the cases of murder (Deut 19,11–13) .................. 136 1.2.6. Summary considerations on the legislation of Deut 19,1–13 ......................................................................... 140 1.3. The legislation on the cities of refuge in Josh 20,1–9 ......................... 141 1.3.1. The differences between the Hebrew and the Greek texts of Josh 20,1–9 ............................................................................ 142 1.3.2. The proposal of A. Rofé: the Greek text of LXXB is the archetype of Josh 20 ......................................................... 145 1.3.3. The proposal of L. Schmidt: the Grundbestand of the Masoretic Text is the archetype of Josh 20 ..................... 150

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2. Conclusions on the interdependence of the four biblical texts analysed ...................................................................................................... 157 Conclusion ....................................................................................................... 159

Bibliography .................................................................................................... 163 Index of Biblical References (selective) ......................................................... 175 Authors Index .................................................................................................. 180 Subject Index ................................................................................................... 183

Introduction “I thought I had already read this!”. These could be the words expressing the reaction of someone who is venturing to read the Bible for the first time. Right from its very first pages (see Gen 1–2), he bumps into texts which recall each other to the point of inspiring the reader with a sense of déjà lu. In fact, if one reserves a shrewder examination for the ‘doublets’1 present in the Bible, it immediately becomes apparent that what appear, superficially, to be negligible discrepancies between accounts that are basically similar, can make all the difference when it comes to interpreting the text. The case of Num 35,9–34 is a good example of this phenomenon: in fact, the majority (if not the totality) of commentators sees there a kind of mere repetition – perhaps furnished with some additions or adaptations – of the law on the so-called “cities of refuge”, which has already been laid down in at least two Pentateuchal traditions (Ex 21,12–14 and Deut 19,1–13) and even repeated in implementing form in the book of Joshua (20,1–9). What is lurking at the basis of this preconception is easily told: despite the fact that it has recently leapt to the centre of interest in biblical studies, as demonstrated by the numerous monographs and studies which continue to sprout on the subject,2 the fourth book of the Torah – in which our text is situated – has never enjoyed great popularity among the readers and commentators of the Bible. This is principally due to the organisation of the literary material in the book which sees the alternation of interminable lists and censuses – giving rise to the Greek name of the book, ‘Numbers’ – with glimpses of narratives which can be reduced to a linear and clear sequence only with difficulty; of prescriptions of an essentially cultic character to various civil or penal norms to the point that the entire book seems to have been considered basically as a mass of traditions lacking in homogeneity with regard to their origin, style

                                                                                                                1

For a systematic presentation with examples of the phenomenon of different versions of the same events, cf. J.L. SKA, Introduction to Reading the Pentateuch (Winona Lake, IN 2006) 53–60. 2 For an update on the literature (ancient and recent) relating to the book of Numbers, cf. the recent contribution of J.L. SKA, “Old and New in the Book of Numbers”, Biblica 85 (2014) 102–116.

2

Introduction

and literary form, traceable, for the most part, to rather late period compared with the other books of the Pentateuch.3 My claim is that it is precisely this bias, which generally accompanies the book of Numbers, that has also had negative repercussions on the understanding of the pericope of Num 35,9–34, resulting in its downgrading as a simple repetition of legal content that is basically already present in the biblical legislation of the previous canonical books. But is this really a case of sterile repetition or are we rather faced with a case of reformulation? I anticipate at once that my response to this question – as those who are patient enough to read this book thoroughly will be able to observe – is that we find ourselves here before a case of reformulation the implications of which are extremely interesting for the understanding of the biblical penal legislation which, in this particular fragment, exhibits traces of modernity so surprising as to be as good as the defence of civil liberties in the legal systems currently in force in the majority of democratic states. My enquiry takes its starting point and develops, therefore, from the novel contribution which the legislation in Num 35,9–34 confers on the entire biblical law of a penal character. Precisely in starting out from this presupposition, the logical path which I am putting forward is structured in a way entirely opposite to that normally followed by the exegetes who deal with the theme of the legislation relating to the cities of refuge on the basis of the canonical order of the traditions which refer to them, and, in addition, taking as basically given that this order is also reflected in the relationships of dependency of the individual legal provisions. The arrangement of the material follows the scheme contained in the words which form the subtitle of this book: Biblical Criminal Law and the Book of Numbers. The first two chapters, which are of a clearly introductory nature, seek to understand what biblical law is, in what terms it is distinguished from other ancient legal systems and, on the other hand, in what way it corresponds to them. After these general preliminaries, the field of research is confined to the biblical penal legislation by means of the highlighting of criteria useful

                                                                                                               

3 As an example of the general impression which the book of Numbers makes on its readers – in the broadest sense of the term – it is sufficient to quote some words of M. Noth: “There can be no question of the unity of the book of Numbers, nor of its originating from the hand of a single author. This is already clear from the juxtaposition of quite varied styles and methods of presentation, as well as from the repeated confrontation of factually contradictory concepts in one and the same situation” (M. NOTH, Numbers. A Commentary [The Old Testament Library; London 1968] 4). For the convenience of the reader, I shall make use of the English translation of this work the original edition of which is in German: M. NOTH, Das vierte Buch Mose. Numeri (Das Alte Testament deutsch 7; Göttingen 1966; Numbers: A Commentary (OTL; London 1968).

Introduction

3

for the distinction (as far as this is possible) between ‘civil’ and ‘criminal’ laws. The last part of this introductory section consists of a progressive familiarisation with the book of Numbers, general context of the pericope being studied here, with particular attention to the legislative material present in it and to the possible criteria for understanding the organisation of this material. With the exegetical analysis of Num 35,9–34, the third chapter enters directly into the heart of the argument by means of the complementary use of the diachronic and synchronic methods, allowing the demarcation of the pericope; the determination of an internal arrangement which structures the argument; the analysis of the key words and expressions; the development of the overall meaning of the text; and the general contribution which the law being studied offers to the entire biblical legislation relating to the different cases of homicide. Finally, in the fourth chapter, the text of Num 35,9–34 is compared with the biblical traditions held to be parallel: we start off, therefore, with the exegetical analysis of the individual pericopes of Ex 21,12–14; Deut 19,1–13 and Josh 20,1–9 in order to reach a rationale of the possible relationships of interdependence, thematic and formal, which bind together all these traditions relating to the “cities of refuge”. It is precisely from this comparison with the other parallel traditions that there emerges, with extreme clarity, the novel contribution of the legislation of Num 35,9–34: something which justifies our working hypothesis on the basis of which it is claimed that the legal reformulation contained in this text represents a milestone in the history and evolution of biblical criminal law in particular and biblical law in general.

 

Chapter I

The Law in the Bible and in the Ancient Near East The scholastics held that the adequate specification of the terms of the question that was to be treated (what they called the explicatio terminorum) represented an excellent way of undertaking a demonstration or a scientific discourse. Since the general object of our research is the study of the penal legislation relating to the cases of homicide which appear in Numbers 35, the aim of this first chapter will be that of clarifying the fundamental concepts, proceeding deductively from the definition of the general notion of ‘law’ within the Bible in order to consider its concrete application to the penal laws contained in the book of Numbers.

1. “Biblical law”: ambiguities, problems and challenges of a definition 1.1. “Does it make sense to speak of ‘biblical law’?”. Epistemological problems It is consistent with human nature and with the special motives of their authors that codes like that of Manu should pretend to the highest antiquity and claim to have emanated in their complete form from the Deity […] The Roman Code was merely an enunciation in words of the existing customs of the Roman people. Relatively to the progress of the Romans in civilization, it was a remarkably early code, and it was published at a time when Roman society had barely emerged from that intellectual condition in which civil obligation and religious duty are inevitably confounded.1

The basic idea which shines out from this short passage of the juridical eloquence of Sir Henry J.S. Maine2 represents a problem not least for the object

                                                                                                                1

H.J.S. MAINE, Ancient Law. Its Connection with the Early History of Society and Its Relation to Modern Ideas (London, UK 101908) 15–16. 2 Sir Henry James Sumner Maine (1822–1888) was a famous English jurist, held today as a milestone in the evolution of Anglo-Saxon jurisprudence. Beyond the successful attempt to make known his material widely by means of a gentle style, immediately comprehensible even to laymen, he is ascribed with the merit of having demonstrated the profound link which connects the law with the other human sciences, particularly history and sociology. Reading his magisterial work (quoted above), one has the sense that, rather than simply highlighting the link between human sciences and law, Maine tends to empha-

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Chapter I: The Law in the Bible and in the Ancient Near East

to our research to the extent that it has contributed to creating – or else to consolidating – a prejudice which confines the Jewish law in general and biblical law in particular3 to an area foreign to that scientific discipline which goes under the name of Legal History. From Maine’s words, indeed, one gathers that the signs of the social progress and of the cultural evolution of a specific community are uniquely recognisable in the ability which the community itself has of emancipating itself from the idea that law and religion are two sides of the same coin. This idea would represent none other than an archaic conception, founded deeply on prejudice: according to Maine’s analysis, authentic progress consists in embracing a system of thought alternative to this prejudice on the basis of which law and religion are conceived as two independent systems of reference. Something that, according to Maine, is typical of advanced and developed social groups.4 From this it follows that, since biblical law comes within the area of religious systems by virtue of recognising its own origin in YHWH, by its very nature it would be excluded from the aims and objectives of a discipline such as the history of law.5 If one takes this theory to its extreme consequences, one finds oneself compelled to maintain that the biblical law does not belong among the scientific disciplines, as if to say that it does not even exist. A discussion like this of its epistemological status seems to us a good starting point for understanding what and how big are the challenges which await whoever wishes to tackle the study of biblical law.

                                                                                                                sise the law itself to the detriment of other elements, specifying the primitive history of society and the law as “the only quarter in which it [i.e. the truth] can be found” (MAINE, Ancient Law, 3). For further information on Maine, cf. R. COCKS, Sir Henry Maine. A Study in Victorian Jurisprudence (Cambridge Studies in English Legal History; Cambridge, UK 1988). 3 Given the nature of the present research, which will turn upon an analysis of a text of the book of Numbers, when we speak of biblical law we are referring to the legislation contained in the Old Testament and especially in the Pentateuch (if not specified otherwise). 4 B. Jackson summarises this passage of Maine’s thought well: “[…] The development from law-religion to law-and-religion becomes regarded as an evolutionary progression. Since Jewish law is a “religious system”, it represents the law-religion ‘stage’, and so falls outside the interest of the legal historian” (B. JACKSON, Essays in Jewish and Comparative Legal History [Studies in Judaism in Late Antiquity 10; Leiden 1975] 1). 5 Let me explain immediately that, given the nature of the present study which is admittedly always a study in biblical exegesis and not in Law, we shall utilise the terms ‘Law’ and ‘law’ synonymously. For a distinction and definition of the two concepts, cf. J.L. SKA, “Il diritto e la legge: una distinzione fondamentale nella Bibbia”, Civiltà Cattolica 157 (2006) 468–479.

1. “Biblical law”: ambiguities, problems and challenges of a definition

7

1.2. Methodological difficulties: the problem of the sources Certainly the problems go way beyond the purely philosophical question: in fact, beyond causing the difficulty we have already signalled of recognising the biblical law as enjoying the rank of a scientific discipline, the marriage between the religious and legal elements which lies at the basis of the biblical precepts invests the much more empirical area of the study of sources and of methodology, creating not a few problems in the systematisation of the material. A rapid comparison with two sets of laws – Roman and Anglo-Saxon – will prove to be useful in clarifying the nature of the difficulty referred to.6 1.2.1. Comparison with roman law Having recourse, inevitably, to a simplification, we can state that the ancient Roman law rested on the general principle of the authority of the one who exercises justice to the point that the magistrate – in the very different levels of the judicial function – came to enjoy also the function of legislator to the extent to which his application of determinate principles to concrete situations survived him as patrimony for universal law under the form of jurisprudence. That allows the statement that, for the Romans, the authority of the law derived and descended from that of the legislator which, in the nature of things, coincided with the magistrate who was administering justice. Given these premises, whoever intends to study the history of Roman law does so starting from sources the origin of which can be reconstructed with a reasonable degree of certainty, since the legal texts have generally been transmitted with a precise indication of the author in question. The attention paid by the compilers of the various collections of Roman laws to recording the origin of each legal provision derives from the fact that the authority of the provision leant on the authority of the magistrate who had pronounced it: it thus became anything but indifferent to know who was at the origin of a particular sentence or juridical act.7

                                                                                                                6

On this subject, cf. J.L. SKA, “Biblical Law and the Origin of Democracy”, The Ten Commandments: The Reciprocity of Faithfulness (ed. W.P. BROWN) (Library of Theological Ethics; Louisville, KY 2004) 154–155. 7 Cf. JACKSON, Essays, 2; SKA, “Biblical Law”, 154. It will be necessary to pay attention to the monumental codification undertaken by the Roman Emperor in the East, Justinian (482–565), to find juridical material which goes beyond jurisprudence to open itself up to theoretical speculation on the law. In fact, in the work of Justinian, alongside the works which collect the jurisprudence, past and present (gathered together in the famous Corpus Iuris Civilis), we also find the Institutiones, a kind of manual in four volumes aimed at education in the law. The structure of these volumes is very careful: it presents subdivisions with titled rubrics favouring the memorisation of the contents by pupils.

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Chapter I: The Law in the Bible and in the Ancient Near East

Now, if there is one characteristic common to the collections of laws contained in the Bible – collections that are in other ways so unlike and variegated – it is precisely the anonymous nature of the individual precepts and regulations which, in the best of the hypotheses, are simply referred to Moses8 but which always have their origin and foundation in God, with all the problems that such an attribution involves, as we have had the opportunity to see. It is clear that such a scenario, characterised by anonymity in the very locus which the Roman legislation recognised as the source of law, is marked by the absence of one of the taxonomic criteria which form the basis of the classification of laws, namely, the attribution of authorship to the individual legal acts. 1.2.2. Comparison with anglo-saxon law From another point of view, where the principle of Roman law invokes the authority of the magistrate as the foundation and authority of the law, the Anglo-Saxon tradition is proud to recognise the roots of its own juridical civilisation in the common law or customary law, founded on the acceptance of the principle on the basis of which jurisprudence – understood as the corpus of the judicial precedents of the various cases – is the source of law. It will not be necessary to emphasise the subject in order to understand how fundamental here are the circumstances of place and time, as also how considerable the possibility of attributing to concrete persons the various cases as well as the related juridical provisions adopted. None of all that (or at least very little) can be found in the biblical legal texts the literary production of which is subjected – in a way entirely similar to what happens with the narrative texts – to the so-called principle of “predominance of action”:9 in other words, the text tends systematically to omit (or at least to put in second place) information on the interior world of the characters and of the circumstances of their lives in order to make room almost exclusively for the role which they take on in the events which are being narrated. As if to say that the biblical narrative generally privileges the instrumental function of the character rather than indulging in the description of circumstantial or interior aspects which characterise the actors in a way that is unique and unrepeatable. It is clear, on the other hand, that, for an historian

                                                                                                                8

On the role of Moses, to whom the biblical text often seems to attribute authorship of the Law, speaking of the “Torah of Moses, cf. J.L. SKA, “‘La scrittura era parola di Dio, scolpita sulle tavole’ (Es 32,16). Autorità, rivelazione e ispirazione nelle leggi del Pentateuco”, Ricerche Storico Bibliche 12 (2000) 18–23. 9 On the concept of “predominance of action” in biblical narrative and on the characterisation of the actors, cf. J.L. SKA, “Our Fathers Have Told Us”. Introduction to the Analysis of Hebrew Narratives (Subsidia Biblica 13; Roma 1990) 83–93.

1. “Biblical law”: ambiguities, problems and challenges of a definition

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of Roman or Anglo-Saxon law or of whatever other cultural matrix, such aspects turn out to be fundamental.10 In the face of these multiple difficulties, should we, therefore, join Maine in decreeing the isolation of biblical law from the assembly of scientific disciplines on account of the epistemological and methodological problems which we have just outlined? Perhaps there is another way which passes through the remodelling of the very concept of ‘law’ by means of the attempt to liberate our judgement – as far as humanly possible – from the influence which some modern juridical models exercise on our way of looking at the legislative corpus contained in the Bible, thus creating a real pre-judice (in the literal sense of the term). 1.3. Juridical models of the 19th century: between ‘evolutionism’ and ‘diffusionism’ As is suggested wisely by B. Jackson,11 a good way of bringing about the liberation from the prejudice spoken of above is that of demonstrating the contours of the said influence with the object of limiting their conditioning effects: we shall seek, therefore, to summarise the contents and principal authors of the chief juridical models of the nineteenth century which, as far as we can see, continue to exercise a certain influence on the general perception of biblical law. 1.3.1. The ‘evolutionist’ model In the second half of the nineteenth century, the emergence and affirmation of the classic theory of evolution as the dominant theoretical paradigm contributed to the establishment of a conviction which, to simplify in the extreme, could be reproduced thus: human history is deployed along the line of a constant progress, understood as the superseding of the previous theoreticocultural paradigm by the acceptance of the subsequent paradigm.

                                                                                                                10

Well-known is the Ciceronian hexameter in which the formula “quis, quid, ubi, quibus auxiliis, cur, quomodo, quando” summarises the circumstances of place, time and case which form the starting point for any kind of investigation into the truth of an event. Cf. MARCUS TULLIUS CICERO, Rhetoricorum, seu de inventione rhetorica (cited by THOMAS AQUINAS, Summa Theologiae, Ia–IIae, q. 7, a. 3). 11 Cf. B. JACKSON, “Models in Legal History: The Case of Biblical Law”, Journal of Law & Religion 18/1 (2002–2003) 1–30; ID., Wisdom-Law. A Study of the Mishpatim of Exodus 21:1–22:16 (Oxford, UK 2006) 3–39. In dealing with this subject, I shall make ample reference to this study as also to the recent work of J. BERMAN, “The History of Legal Theory and the Study of Biblical Law”, The Catholic Biblical Quarterly 76 (2014) 19–39.

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Chapter I: The Law in the Bible and in the Ancient Near East

Such a presupposition very quickly crosses beyond the limits of ethnoanthropology to be claimed as a kind of interdisciplinary gain, valid across sciences quite different from one another but sharing the fact of having the human being as their subject. Basically, Maine’s assessment of the backwardness or not of the different legal models cited at the beginning of this chapter represents none other than a variation in the juridical key of this evolutionist theoretical principle. In the German sphere, a similar approach to that of Maine was advanced by the German philosopher and jurist, Friedrich Karl von Savigny (17791861): he was the founder of the “Historical School” of law, characterised by the study and the systematic re-elaboration of customary law which the Germans describe as “Das gemeine Recht”, an expression which corresponds to the common law in the English mould. Savigny is also commonly considered the precursor of modern pandects, subsequently developed and systematised by his disciple Georg Friedrich Puchta.12 1.3.2. The ‘diffusionist’ model The other great anthropological model of the nineteenth century, which is set alongside and in competition with the evolutionist one is known as ‘diffusionism’. Whereas the classical evolutionist theory states that cultural progress occurs in stages common to each human being, the diffusionist approach maintains the possibility of identifying some fundamental cultural aspects13 which occur in identical form in the most disparate areas of the world: originating in a particular place, these cultural aspects would have been diffused or spread into different regions, supplanting others of an endogenous nature.14 As is clear from even an analysis as superficial as this, the greater difference between the two theoretical models of anthropology is evident in their overall valuation of human society and its concrete possibilities of progress: for evolutionism, in fact, the human group is open to a constant and potentially unlimited state of development,15 while diffusionism exhibits considerably

                                                                                                                12

For further information on Savigny, cf. I. DENNELER, Friedrich Karl von Savigny (Preußische Köpfe 17; Berlin 1985). 13 Kulturkreise (“cultural circles”), according to the German definition. 14 One of the most classic examples is constituted by the use of the bow which would have very quickly superseded the spear in different and widely separated cultures on account of its versatile characteristics. 15 This romantic ideal is a concept which seems to me well expressed by a famous passage of a canto by Leopardi in which the poet of Recanati professes his almost unlimited faith in social progress: “Dipinte in queste rive / son dell’umana gente espresse / le magnifiche sorti e progressive” (“The magnificent and progressive fate / of the human race / is depicted in this place”. G. LEOPARDI, Canto XXXIV: La ginestra, o fiore del deserto).

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less faith in the internal potentiality of development of individual social groups in so far as it maintains that progress is more the fruit of contamination of common elements between different social groups. Such a division is reproduced almost identically in the modern (and even contemporary, according to some experts)16 historical reconstruction of the origins of the legal systems: for some, the legislative development of a people is to be considered as the fruit of an internal cultural progress and is therefore peculiar to each society; for others, instead, it happens through contamination of the legal models hailing from different cultures which are able to influence one another through a variety of motives. Returning to the question which opened our brief examination of the history of the juridical systems of the nineteenth century, we observe that the conceptual grill in which the biblical law is situated and by means of which it is valued is affected inevitably by this double prejudice, given that the question often is: are the biblical legislative texts to be considered as positive law, fruit of the internal development proper to the society – or the societies – reflected in it; or are they to be treated instead as principles having their origin in the scribal wisdom common to many cultures and, as such, deriving from contamination with the neighbouring peoples of the Ancient Near East? Rather than remaining confined in what risks being revealed as a double pre-comprehension, the extremes of which end up in the same pernicious effect of holding the peculiar nature of biblical law at a distance, it is preferable to broaden the cognitive horizon by means of the deepening of some other key concepts. 1.4. The authority of the law and the law-text relationship Alongside the problem relating to the nature and typology of juridical systems, a further problem which the historians and theorists of law have had to tackle is the question concerning the authority of the law and the relationship between law and texts. In this case too, the approach can be reduced to two general tendencies which we could define thus: ‘statutory’ and ‘customary’.17 We are seeking to deepen the discourse further. 1.4.1. The authority of the law according to the statutory model For the statutory tendency, the law represents a complete corpus, marked out and defined in an unequivocal manner by the written text in which is contained – the statute, to be precise – and emanates from the sovereign authority of the legislator. The type of legislator can vary (king, judge, representative

                                                                                                                16

Cf. JACKSON, “Models”, 3–4 and the relevant bibliographical references. I am borrowing the definitions and the development of the basic concepts from BERMAN, “History of Legal Theory”, 20–21. 17

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Chapter I: The Law in the Bible and in the Ancient Near East

of the people at various levels…); what does not change, however, is the authoritative relationship which, according to this paradigm, binds the lawgiver indissolubly to the normative instrument emanating from him. It is important to emphasise that, for those who maintain this approach, only what is written is law: the exercise of the judicial function is interpreted, therefore, in terms of the faithful application of the legislation contained in the statute. It is the ‘continental’ model of law which arises, in fact, with the Napoleonic codes. 1.4.2. The authority of the law according to the customary model The other tendency which, for symmetry of language, we have described as ‘customary’ bases the authority of the law on the system of common law instead of referring it to the content of a specific text. Characteristic of this approach – typical of Anglo-Saxon law – is the centrality of the society which stands behind the law and, in a certain way, produces the law itself: in his pronouncements, the judge must endeavour to decide on the circumstances and facts which are submitted to his judgement on the basis of customs proper to the community over which he has received the munus iudicandi. The task of the magistrate consists, therefore, in interpreting what the above-cited Savigny loves to describe as the Volksgeist (“popular spirit” or “collective conscience”), with a term introduced for the first time into philosophic jargon by J.G. Herder and subsequently canonised in its use by Hegel.18 *

* *

From the comparison of these two models, there emerges quite clearly a totally different conception of authority and of the very nature of law: for the statutory model, the law assumes the monolithic contours of the written text and is, therefore, a static element,19 rooted on the solid bases of the statute; for the customary model, on the other hand, the law has more a dynamic

                                                                                                               

18 Cf. F.K. VON SAVIGNY, Von Beruf unserer Zeit für Gesetzgebung und Rechtswissenschaft (Heidelberg 1828). 19 The idea of the monumentality of the written law postulated by the statutory theory seems to be to have been rendered brilliantly by what the Latin poet Horace says with reference to his own poetry, claiming that what he had written would remain as an everlasting memorial more than a bronze monument could have done: “Exegi monumentum aere perennius / regalique situ pyramidum altius, / quod non imber edax, non Aquilo inpotens / possit diruere aut innumerabilis / annorum series et fuga temporum” (QUINTUS HORATIUS FLACCUS, Odes, III, 30). In the Bible, an analogous concept is expressed in the book of Job (Job 19,23–24).

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dimension and is, so to speak, a fluid element in the hands of the judge,20 who is conceived as an active and determining subject through his capacity to adapt the law to persons and circumstances.21 1.4.3. The law-text relationship in the two models It goes without saying that such a different conception of the law has an overwhelming effect on the distinct way of perceiving the legislative text of the two models: without needing to repeat what has just been said, it is sufficient to observe that, for the statutory approach, the text is tout court the source of the law whereas for the customary approach the text is rather a resource at the disposal of the administrator of justice who – although basing himself on previous pronouncements which already form part of the juridical patrimony of the particular society – has the authority and the duty to actualise them, adapting them to the case and to the changed circumstances. With recourse to a rhetorical device, we could say that whereas the statutory approach theorises the continuity of the law, understood as constant fidelity to the written text, the customary approach affirms the law of continuity, conceived as a process of actualisation of the legislative system which is continually developing and being enriched with new elements, although sinking its own roots in the common law.22 Although at the beginning of the nineteenth century the juridical model which had the greater influence in Europe, pervaded at that time by romantic currents, was the customary model, it was the statutory approach that had the best of it from the second half of the century onward. In all probability, the reasons for this reversal have sociological roots, at least in part: we shall attempt to summarise them briefly in the next section.

                                                                                                               

20 In this regard, Roger B.M. Cotterrell expresses himself thus: “Indeed, a long tradition of thought sees the classical essence of common law in broad legal guidelines, as much concerned with how to reach proper judicial decisions as with their specific content” (R.B.M. COTTERRELL, The Politics of Jurisprudence. A Critical Introduction to Legal Philosophy [London, UK 22003] 23). 21 Cf. BERMAN, “History of Legal Theory”, 22. 22 According to this theoretic model, the collection of legal texts which forms the jurisprudence represents a real system of thought and reasoning aimed at informing the actual decision of the judge. Cf. M. LOBBAN, The Common Law and English Jurisprudence: 1760–1850 (Oxford, UK 1991) 6–7.

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1.4.4. The affirmation of statutory law in Europe In the second half of the nineteenth century, the Old Continent experienced the phenomenon of industrialisation to the full.23 This caused the concentration of the population – notably increased because of the general increase in welfare – in the great urban centres and the consequent despoliation of the country. Among the other effects of this complex phenomenon, we observe what we could describe as a redesigning of the basic social fabric: the masses of workers who are concentrated in the great urban centres, hailing originally from confined areas and strongly rooted in the family model, find themselves deprived of what, in their previous situation, constituted the background of their value system, in the broadest sense of the expression (civil, social, religious values etc.). The social groups which came to be formed as a result of these changes were characterised by new forms of interaction, tied up with their working environment and its surroundings: the result was a rather forced and artificial amalgam of elements which differed in their origin and provenance. In such circumstances, it became necessary to identify a common base, a new system of reference on which to construct a new urban society and nation, the result of the union of multiple urban societies and no longer only of small groups substantially alike because occupying a territory that was circumscribed and, therefore, rather homogeneous. This gave rise to a body of laws clearly codified and expressed in statute form, representing the best – or, if not, then the most effective – of the instruments of control of a society that was otherwise difficult to reduce to common elements.24 These would be the principal reasons for affirming and reinforcing a statutory type of legislation which becomes the predominant model and is inevitably transformed into the measure of judgement for valuing every other system of law, the biblical included. *

* *

                                                                                                               

23 In the second half of the nineteenth century, there took place the passage from the first industrial revolution to the second through the discovery of electricity and the introduction of petrochemical products in industry. For further information, cf. L.R. BERLANSTEIN (ed.), The Industrial Revolution and Work in Nineteenth-Century Europe (London, UK – New York 1992). 24 A.B.W. Simpson interprets the need for setting aside the common law in order to have recourse to a system of formulation of fixed rules as “a symptom of the breakdown of a system of customary or traditional law” (A.B.W. SIMPSON, “The Common law and Legal History”, Oxford Essays in Jurisprudence. Second Series [ed. A.B.W SIMPSON] [Oxford 1973] 98).

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The clarification of the concepts (and of the related preconceptions) which lie at the base of the juridical models of modern Europe together with the analysis of the hermeneutical background through which every legal system is assessed and understood, allows us to take a step forward in our attempt to look at the peculiar nature of the biblical legislation, respecting its characteristics without being limited by interpretative criteria of an ideological kind. One of the things that is most immediately clear is that the origin and development of biblical law have little to do with the formation of the great legal systems of the statutory character which also existed at the time of the formation of the biblical texts:25 generally speaking we could affirm that, except for special cases, biblical legislation is understood better with the categories of the common law just as in the case of the legal systems of the Ancient Near East by which biblical Israel was surrounded. For this reason, with the aim of coming closer to understanding the object of our enquiry, it is precisely to the nature and characteristics of the collections of laws26 of the ANE that we now turn our attention. 1.5. The law of the Ancient Near East The distance separating us from the ancient civilisations is not only chronological but also – and, I would say chiefly – cultural. It is difficult to remain exempt from the temptation to reduce the complexity of worlds so far distant to something that we know; in these cases, the drift into anachronism is more than a mere possibility. Seeking to avoid these risks as far as possible, we begin the examination of the juridical collections of the ANE by establishing an important interpretative foundation: Ancient Near Eastern law is to be understood as “law in action”.27 We already clarified the difference between legal models that are

                                                                                                                25

One thinks, if only to take the most common examples, of the statutory systems of the Greek polis or the Roman empire. 26 It seems preferable to employ this expression rather than to speak of “codes”, a term which leads inevitably to comparison with modern statutes. For a clarification of the concepts, cf. P. BARMASH, Homicide in the Biblical World (Cambridge, UK 2005) 6–7; B. WELLS, “What is Biblical Law?’, The Catholic Biblical Quarterly 70 (2008) 224–225. 27 From what I have been able to ascertain, this definition is due to H.J. Berman who, in the context of his reconstruction of the history of western law identifies the distinction between the oriental and western juridical traditions in these terms: “‘Law’ these days is usually defined as a “body of rules”. The rules, in turn, are usually thought to derive from statutes […] Such definition of law is entirely too narrow for any study […] which is concerned not only with the law in books but also with law in action. Law in action involves legal institution and procedure, legal values, and legal concepts and ways of thought, as well as legal rules” (H.J. BERMAN, Law and Revolution. The Formation of the Western Legal Tradition [Cambridge, MA – London, UK 1983] 4: italics are mine). In the

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‘static’ and ‘dynamic’:28 the principle of “law in action” is none other than a perfect illustration of what we have already described as the dynamic model inasmuch as it conceives the juridical exercise as an activity that is not univocal but many-sided which is expressed not only in the administration of justice through the application of established laws but embraces the positive areas of law-making and even of negotiation between individuals.29 In other words, the study of the law is not the study of rules, it is the study of the way in which and the reasons for which laws arise, develop and are altered. Now that we have established this hermeneutical criterion, which turns out to be decisive for a correct understanding of the juridical collections of the ANE, we shall undertake the examination of the different types of legal material which have come down to us from these civilisations. 1.5.1. The principal Mesopotamian juridical collections The legislative collection which bears the name of the Babylonian king, Hammurabi, is certainly the most famous among the Mesopotamian collections,30 but it is not the only one nor even the most ancient. Alongside it, we should remember the one which at present is the most ancient juridical collection found by archaeologists up to now: it derives from Ur-nammu, the Sumerian king who was the founder of the third dynasty of Ur and who lived towards the end of the twenty second century B.C. Some centuries later, we find the collection of laws of Lipit-Ishtar, who was also Sumerian, king of the city of Isin (presently in Iraq). The legislative collection which is remembered by the name of the city Eshnunna (again in present Iraq) goes back, on the other hand, to the end of the first half of the eighteenth century B.C. and is clothed with a certain degree of importance on account of the fact that, as things stand, it is the most ancient legal document written in Akkadian and no longer in Sumerian.

                                                                                                                German sphere, an analogous concept is described by the term Rechtsverwirklichung (literally, “actualisation of the law”). 28 Cf., supra, 1.4. 29 Cf. BERMAN, Law and Revolution, 23; J.L. SKA, “Le droit d’Israël dans l’Ancien Testament”, Bible et droit. L’esprit des lois (ed. F. MIES) (Namur – Bruxelles 2001) 13–14. 30 For a general introduction to Mesopotamian laws, cf. E. SZLECHTER, “La ‘loi’ dans la Mésopotamie ancienne”, Revue internationale des droits de l’Antiquité 3/12 (1965) 55–77; M.T. ROTH, Law Collections from Mesopotamia and Asia Minor (Society of Biblical Literature Writings from the Ancient World 6; Altanta, GA 21997). For this summary presentation of the individual legislative collections of the ANE, I have broadly repeated SKA, “Le droit d’Israël”, 14–27 (especially 14–15), to which I refer for further study and for the bibliographical references relating to each of the legal collections. One could also look at R. WESTBROOK – B. WELLS, Everyday Law in Biblical Israel: An Introduction (Louisville, KY 2009) 20–25.

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By a small chronological margin, this collection precedes one of the most famous legislative works of antiquity which commonly goes under the name of the “Codex of Hammurabi”, founder of an extremely vast empire, who reigned over Babylon in the first half of the eighteenth century.31 This legislative text is reproduced on a stone artefact found in the city of Susa (now in Iran) and represents the longest and most substantial juridical document found in the ANE. The subsequent discovery of more than fifty fragments of the ‘code’, scattered throughout Mesopotamia and belonging to a time-frame of more than fifteen centuries, contributed to creating the idea that this legislative collection was the code of the whole of Mesopotamia, and that over a long period.32 More recent developments in research, however, have led to the abandonment of this ‘statutory’ approach which attributes universal value to the laws of Hammurabi’s code the nature and characteristics of which we shall return to shortly. 1.5.2. The juridical tradition of ancient Egypt Quite different is the situation concerning the juridical collections of ancient Egypt. With the exception of the document known as the “decree of Horemheb”,33 it is necessary to wait as late as the Achaemenid period in order to find a legal compilation which, moreover, is the work of the Persian king, Darius the Great, who decreed the codification of the temple laws in Egypt in a bilingual document (demotic and Aramaic). The explanation for this phenomenon Is not immediately forthcoming and, as often happens in similar cases, the theories have multiplied. According to some, the absence of juridical collections hailing from ancient Egypt would be the result of the writing material employed, papyrus, a material widely

                                                                                                                31

For the transcription and translation of the text (and relevant commentary) cf. E. S ZLECHTER, Codex Hammurapi (Studia et documenta ad iura Orientis antiqui pertinentia 3; Roma 1977). One of the few diplomatic editions of the text is: E. B ERGMANN, Codex Hammurabi. Textus primigenius (Roma 1953). For commentary, cf. J. K LÍMA, “La perspective historique des lois Hammurapiennes”, Comptes rendus de l’Académie des Inscriptions et Belles Lettres (1972) 297–317; H. PETSCHOW, “Beiträge zum Codex Hammurapi”, Zeitschrift für Assyriologie und Vorderasiatische Archäologie 76 (1986) 17–75. 32 Cf. B ERMAN, Law and Revolution, 24. 33 This is a stele going back to the end of the fourteenth century B.C. (chronology uncertain), set up by the Pharaoh of that name of the 18th Dynasty in the temple of Karnak. It contains a decree which re-established the social order in Upper and Lower Egypt after the reign of the controversial Pharaoh Akenaton. Its location in such an important cultic site would testify to the importance which Horemheb attributed to the administrative arrangements of his own territory. For further study, cf. J.-M. K RUCHTEN, Le décret d’Horemheb. Traduction, commentaire épigraphique, philologique et institutionnel (Bruxelles 1981).

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spread on the banks of the Nile and characterised by its ease in fading by contrast with the traditional writing material used by the Mesopotamians, namely, terracotta tablets.34 Such an explanation does not appear to be wholly convincing for two reasons: first of all, various papyri dating from ancient Egypt have come down to us in perfect condition;35 secondly, the said “document of Horemheb” shows that the Egyptians too had recourse to stone material (or wall painting, as in the tombs and temples) as an alternative to papyrus. According to J.L. Ska, the absence of juridical collections going back to ancient Egypt cannot simply be attributed to contingent causes such as the perishability of the writing material but has roots of a socio-cultural type. He identifies the great difference between Mesopotamia and Egypt in a precise element of contrast: homogeneity. If one looks closely, even from the merely geographical point of view, Egypt is a great deal more uniform than Mesopotamia since it is located along the course of the largest river in the world. In fact, being a river that is navigable for the most part, the Nile guaranteed regular communications within a kingdom which remained substantially the same after the unification carried out by the pharaohs of the first dynasties.36 The cultural homogeneity of Egypt was in itself a guarantee of stability and rendered superfluous an attempt to make the law uniform: something, however, which was shown to be necessary in Mesopotamia with its various empires resulting from the more or less forced marriage of different races having different customs and – an element by no means secondary – speaking different languages. Ska adds a factor which only reinforces the hypothesis just expressed: the most ancient legislative collection from Egypt is situated in a period of foreign domination over the country, the Achaemenid. With the decline of the dominant cultural (and, therefore, social, religious, political) element represented by the government of the pharaohs, it was necessary for the new ruler – Darius I of Persia – to issue an official document containing laws regulating

                                                                                                                34

So, for example, S. LAFONT, Femmes, Droit et Justice dans l’Antiquité orientale. Contribution à l’étude du droit pénal au Proche-Orient ancien (Orbis Biblicus et Orientalis 165; Fribourg-Suisse – Göttingen 1999) 2. 35 A good example is Papyrus Ebers (so called from the name of its buyer): dated to the th 18 Dynasty (second half of the sixteenth century B.C.), this papyrus roll boasts 20 metres in length by 30 metres of width. The text contains information of a medical nature. It is preserved in the library of the University of Leipzig: cf. R. SCHOLL, Der Papyrus Ebers. Die größte Buchrolle zur Heilkunde Altägyptens (Schriften aus der Universitätsbibliothek 7; Leipzig 2002). 36 The invasions of the Hyksos (first half of the eighteenth century B.C.) or the attempt of reform by the controversial pharaoh (around the middle of the fourteenth century) remain brief parentheses within a substantial cultural, social and political homogeneity.

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the life of the temples; a document which would have been pointless as long as there existed in Egypt the unifying element represented by the pharaohs, sovereigns who were also considered divinities.37 Precisely the religious nature of the Egyptian monarch represents a fundamental element for a further explanation, again of a cultural character, of the peculiarity of Egypt in the production of legal collections by contrast with the neighbouring peoples. This is a theory elaborated by E. Otto starting out from the fact that the pharaoh was the living incarnation of the law which, in common opinion, came to coincide completely with what the pharaoh decided. It is quite clear that such a conception of the law, understood as the immediate product of the will and decision of the pharaoh, is hard to reconcile with the existence of a discussion about the law and about its interpretation such as existed in Mesopotamia; and much less reconcilable with any kind of written form of the laws, since the production of a legislative collection, with that certain character of stability assumed by every written document, would have de facto represented a limitation on the legislative power of the pharaoh which, instead, was universally perceived as unlimited.38 1.5.3. General considerations on the legislative collections of the ANE After having presented the characteristics of the legislative collections of the ANE, the time has come to develop some considerations on their nature. What type of legal material is being treated? To what extent are these legislative texts consistent with the double typology which we have developed, speaking of statutory and customary models? We are seeking to clarify the discourse, always retaining for reference the hermeneutical postulate which we laid as the foundation of our understanding of the law of the ANE in terms of law in action.39 In terms of what has been achieved so far, it will not be a cause of great surprise to observe the broad jumble of theories which have sprouted in the attempt to understand the nature of the legislative collections of the ANE. Some of these feed on the same preconceptions which we have stigmatised in reconstructing the history of the main legal models of today, while others try to tackle the problem by taking account of the distance which separates us from the cultures of the ANE and their peculiar character. Without claiming to tackle the question exhaustively, something which would carry us very far, we shall limit ourselves in this section to listing briefly the different hypothe-

                                                                                                                37

Cf. SKA, “Le droit d’Israël”, 16–17. Cf. E. OTTO, “Recht/Rechtswesen”, Theologische Realenzyklopädie, XXVII (Berlin – New York 1997) 198. Cited by SKA, “Le droit d’Israël”, 17. 39 Cf., supra, the introduction to 1.5. 38

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Chapter I: The Law in the Bible and in the Ancient Near East

ses in order to understand which of them responds best to the question which we have posed on the nature of the laws of the ANE.40 The principal tendencies can be reduced to the conceptual division, familiar to us by now, which sees the opposition of the upholders of the statutory approach to those of the customary one. 1.5.3.1. Statutory interpretation: the law of the ANE as positive or prescriptive law For those who maintain this interpretation, who are generally numbered among the historians of Roman law, the law in the ANE corresponded to the so-called ‘positive’ or ‘prescriptive’ law, and so had force that was universally binding. 41 Those who defend this hypothesis claim that the legislative codes were applied practically in every court of each of the kingdoms of the ANE, similar to what happened with the classical codes (the Justinian, for example, in antiquity or the Napoleonic in the modern period). The most serious criticisms which are mounted against this theory concern first of all the material nature of the juridical instruments which it presupposes, namely, the codes: if the nature of Mesopotamian law really corresponded to positive law, as the hypothesis maintains, it would follow from that that every tribunal would have had to have a copy of the statute; instead, the reality is that we possess only a few exemplars of the code of Hammurabi, to cite only the best-known example. Moreover, it is to be noted that the Mesopotamian legislative collections in our possession are far from being complete in the sense that they do not exhaust organically all the possible juridical cases: if the function of the judge were to consist exclusively in applying the law codified in the statutes, as prescriptive law requires, some specific cases absent in the written legislation would have remained virtually unsettled. Furthermore, such an understanding of the role of judge as one who applies a law produced by others involves the

                                                                                                               

40 For a presentation of the various theories, cf. E. OTTO, “Aspects of Legal Reforms and Reformulations in Ancient Cuneiform and Israelite Law”, Theory and Method in Biblical and Cuneiform Law. Revision, Interpolation and Development (ed. B.M. LEVINSON) (JSOTS 181; Sheffield 1994) 160–163; and, especially, SKA, “Le droit d’Israël”, 17– 28. Cf., also, the recent contribution of E. OTTO, “The Study of Law and Ethics in the Hebrew Bible/Old Testament”, Hebrew Bible/Old Testament. The History of Its Interpretation. III/2: The Twentieth Century (ed. M. SAEBO) (Göttingen – Bristol, CT 2015) 594–621. 41 Cf. E. SZLECHTER, “La ‘loi’”, 55–77; W. PREISER, “Zur rechtlichen Natur des altorientalischen ‘Gesetzes’”, Festschrift für Karl Engisch zum 70. Geburtstag (ed. P. BOCKELMANN – A. KAUFMANN – U. KLUG) (Frankfurt a.M. 1969) 17–36; M.-J. SEUX, Lois de l’Ancien Orient (Cahiers Evangile Supplément 56; Paris 1986) 10–11; S. LAFONT, “La valeur de la loi dans les droits cunéiformes”, Archives de philosophie du droit 32 (1987) 335–346; ID., Femmes, Droit et Justice, 8–13.

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concept of the separation of powers, legislative, executive and judicial 42 which was certainly not typical of antiquity.43 There is another serious problem, however, which threatens the plausibility of the statutory interpretation of the nature of the law in the ANE: the documents of legal procedure in our possession show that the Mesopotamian judges applied to the cases which were submitted to their judgement some laws which do not correspond to those recorded in the code of Hammurabi,44 to give one example, and, in general, they do not make any reference to it.45 1.5.3.2. Customary interpretation of the laws of the ANE The position of those who conceive the law of the ANE in a customary sense is more varied compared with those who support the one which we have described as ‘statutory’. However, the different variants which we are now going to summarise briefly agree substantially on one point: in maintaining that the laws contained in the legislative collections of the ANE were not laws conceived positively with a view of their literal application. The most convincing hypothesis is that which can be described as the ‘jurisprudential’: this theory interprets the law of the ANE as the result of the corpus of sentences and pronouncements previously delivered, collected and transmitted not to impose but to indicate the path of judgement to those who had the task of administering justice. These, however, remained sovereign and free in reaching their own certainty on the specific criminal case submitted to their judgement. In this perspective, the legislative collections do not have the monolithic consistency of the statutes but rather the versatility of manuals of law for the use of the judge.46

                                                                                                               

42 The principle of the separation of powers goes right back to Aristotle’s Politics, but its classic formulation is due to the English philosopher, John Locke (1632–1704), and, above all, to the French philosopher, Charles-Louis de Secondat, baron de La Brède et de Montesquieu (more commonly known as simply Montesquieu: 1689–1755). 43 This is a summary of the critical observations raised by SKA, “Le droit d’Israël”, 18–19. 44 This important argument is raised by B. LANDSBERGER, “Die babylonischen Termini für Gesetz und Recht”, Symbolae ad iura Orientis Antiqui pertinentes. Paulo Koschaker dedicatae (ed. T. FOLKERS – J. FRIEDRICH – J.G. LAUTNER) (Studia et documenta ad iura Orientis Antiqui pertinentia 2; Leiden 1939) 219–221. 45 The exceptions to this way of proceeding are very rare to the point that they seem to confirm the rule of a ‘customary’ attitude among the judges (cf. ROTH, Law Collections, 5–7). 46 The bibliography on this subject is extensively recorded in OTTO, “Aspects of Legal Reforms”, 162, n. 13 and in SKA, “Le droit d’Israël”, 21 n. 36. Cf., among others: E.A. SPEISER, “Early Law and Civilization”, Canadian Bar Review 31 (1953) 863–877; W.G. LAMBERT, “Morals in Ancient Mesopotamia”, Jahrbuch Ex Oriente Lux 15 (1957–1958) 187; G.R. DRIVER – J.C. MILES, Babylonian Laws. I: Legal Commentary (Oxford 1960) 41; R. HAASE, Einführung in das Studium keilschriftlicher Rechtsquellen (Wiesbaden

22

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This theory has the value of offering a plausible explanation for the phenomenon of the fragmentary and hardly systematic nature of the juridical material originating from the ANE of which we have already spoken: on the other hand, it is based on the idea that the legislative ‘codes’ were none other than collections of jurisprudential material but does not pay sufficient acknowledgement to the origin of this material and – something still more compelling – not even to the subjects or systems responsible for the assembling of the said collections. This lacuna is meant to be filled by the theory which identifies the Sitz im Leben of the Mesopotamian legislative collections in the scribal schools which go under the term of ‘eduba’.47 At the foundation of the juridical collections, therefore, there would be the theoretical speculation of the scribes who analysed the most complex cases with the object of training their pupils in the school of law and of justice. Once again, that would provide a reason for the fragmentary nature and absence of system in the ‘codes’ as well as explaining why the presentation of some juridical cases appears rather artificial. That is why one talks of ‘descriptive’ law, contrasting it with the prescriptive variety: rather than enjoining what is to be done, it is limited to describing the circumstances attaching to concrete examples of practice. It is clear that this hypothesis interpreting the law of the ANE in a descriptive manner, elaborated first by F.R. Kraus 48 and subsequently suggested again by E. Otto with substantial modifications,49 has the value of helping us to understand many things about the legislative collections of the ANE which would otherwise remain obscure: nonetheless, it leaves in suspense a question that is not exactly irrelevant concerning the relationship between the what we

                                                                                                                1965) 22–25; R. WESTBROOK, “Biblical and Cuneiform Law Codes”, Revue Biblique 92 (1985) 247–264; ID., “Cuneiform Law Codes and the Origins of Legislation”, Zeitschrift für Assyriologie 79 (1989) 201–222. 47 The script of this Sumerian term varies and its meaning is uncertain even if it could be reduced to the expression “house of tablets”. For further study, cf. P. DELNERO, Variation in Sumerian Literary Compositions. A Study Case Based on the Decad (University of Pennsylvania PhD Dissertations; Philadelphia, PA 2006) 68. 48 In practice, Kraus holds that the law present in the juridical collections of the ANE was simply fictio iuridica (cf. F.R. KRAUS, “Ein Zentrales Problem des altmesopotamischen Rechtes: Was ist der Codex Hammurapi?”, Genava 8 [1960] 283–296). E. Otto summarises the thinking thus: “F.R. Kraus [interpreted] Codex Hammurapi as school literature without any practical concern” (OTTO, “Aspects of Legal Reforms”, 160–161). 49 Otto corrects the perspective of Kraus according to which the Mesopotamian juridical collections were completely fictitious, maintaining that they derive commonly from the pronouncements of courts of justice and were adapted by the scribes for scholastic use. He concludes thus: “Legal sentences were not the sources of court decisions, but reflected them” (OTTO, “Aspects of Legal Reforms”, 160–161 and the relevant bibliographical references).

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might call the scholastic production of the legislative collections and their diffusion as official codes bearing the royal seal.50 J.L. Ska resolves this question well, starting out from some basic considerations about ancient societies, the principal one being the level of literacy of the population. The majority of people were illiterate, and writing was the prerogative of a very limited elite, namely, the scribes, whose education and support required huge economic resources which could only be afforded by the most noble classes. It is not surprising, therefore, that the scribal schools grew up around the temples or the royal palaces: the priestly and royal powers (very often, two sides of the same coin given that among many peoples the king also performed the priestly office) had both the possibility and also the interest in cultivating the production of works written with the aim of giving continuity and, in a certain way, immortality to their own roles. In the specific case of the kings, the fixing in writing of their deeds – in the broadest sense of the term which includes the account not only of their ventures but also of their decisions, among which were numbered the laws – and the preservation of written documents in the royal archives represented an important element of propaganda, aimed at consolidating the position of the sovereign and augmenting his prestige: 51 the more abundant the collection of written material catalogued by the royal archives, the more important was the one who owned it inasmuch as he saw the guarantee of his own memorial far beyond the limits of his earthly existence.52 It was also a way of affirming with all the necessary clarity who it was who was ruling

                                                                                                                50

This is the objection rasied by J.L. Ska: “Si les codes sont à l’origine des exercices d’école, il ne se présentent pas exactement comme tels puisqu’ils sont proclamés par des rois et portent donc le sceau d’une autorité politique et non pas seulement ‘académique’ [If the codes are originally school exercises, they do not appear as such since they are proclaimed by kings and bear the seal of an authority which is political and not only ‘academic’.]” (SKA, “Le droit d’Israël”, 23). 51 This conception takes up again (reasonably reformulated) the theory of J.J. Finkelstein who interprets the law of the ANE as simply royal propaganda. Cf. J.J. FINKELSTEIN, “Ammisaduqa’s Edict and the Babylonian ‘Law Codes’”, Journal of Cuneiform Studies 15 (1961) 91–104; ID., “A Late Old Babylonian Copy of the Laws of Hammurapi”, Journal of Cuneiform Studies 21 (1967) 39–48; ID., “On Some Recent Studies in Cuneiform Law”, Journal of the American Oriental Society 90 (1970) 243–256. The same theory is taken up again in: J. BOTTÉRO, “Le ‘code’ de Hammurapi”, Annali della Scuola Normale Superiore di Pisa – Classe di lettere e filosofia. Serie 3, vol. XII/2 (Pisa 1982) 409–444; F.R. KRAUS, Königliche Verfügungen in altbabylonischer Zeit (Studia et documenta ad iura Orientis antiqui pertinentia 11; Leiden 1984) 114–117. For a criticism of the theory, cf. OTTO, “Aspects of Legal Reforms”, 160–161. 52 Cf. SKA, “Le droit d’Israël”, 24–27, which presents a series of quotations from the Old Testament and Mesopotamian literature in which the value of the “written word” is extolled as an instrument of immortality and imperishable memory.

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Chapter I: The Law in the Bible and in the Ancient Near East

and administering justice. The code of Hammurabi, for example, is first and foremost the code of Hammurabi: that means that it is he who ‘makes’ the law for the country which he governs and which belongs to him. These observations facilitate a better understanding of the marriage between the scribal origin (in the sense of the material composition of the collections) and the royal-imperial authority which stands at the base of the juridical collections of the ANE and allows us to reach a general conclusion to the analysis of the development of ANE law which we have made so far. To summarise very briefly, we could represent this development in terms of a gradual passage from the practices of the administration of justice (customary law) to the fixing of the laws in writing in the official collections which have come down to us.53 That helps us to grasp the complexity of the material contained in the ancient juridical collections, respecting their proper character and escaping the tendency (or the risk) of reducing them to our modern theoretical models of the law. The analysis of the general characteristics of the legislative collections of the ANE undoubtedly represents a good starting point for understanding the legislative texts of the Bible when we consider the importance of the environment and its influence in the formation of the practices and customs of a particular society.54 Nonetheless, it is necessary to bear in mind some distinctions which confer a certain grade of singularity on the biblical legislation: for this reason, we shall dwell first on pointing out the elements of continuity in order to pass next to showing the peculiar nature of the biblical legislation. 1.5.4. Elements of continuity between the laws of the ANE and biblical law The elements of continuity are revealed above all in what concerns the nature of the legal texts contained in the Bible. Like the Mesopotamian laws, those in the Bible are difficult to classify as legal productions of a prescriptive or positive character, not least on account of the nature of the text in which they are contained, the Pentateuch which – despite the basically juridical value which is usually attributed to the Hebrew term hrwt – is certainly not comparable to a code as classically understood for a series of reasons: sufficient to exemplify them is the most obvious, namely, the preponderance of the narra-

                                                                                                                53

Cf. SKA, “Le droit d’Israël”, 27–28. Well known in this connection is the position of M. Greenberg who insists on the importance of “viewing the law as an expression of underlying postulates or values of culture” (M. GREENBERG, “Some Postulates of Criminal Law”, Yehezkel Kaufmann Jubilee Volume [Jerusalem 1960] 8). In general terms, the position is certainly something with which one can agree: but the argument of the theory leads Greenberg into a certain deviation of a unilateral type, as Jackson underlines in his careful analysis of the theory itself (cf. JACKSON, Essays, 24–54). 54

1. “Biblical law”: ambiguities, problems and challenges of a definition

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tive component over the strictly legal one.55 What we are faced with, rather, are texts of a legal character which find their Sitz im Leben in daily life. Generally, the individual precepts are transmitted under the form of indications for behaviour to be observed in analogous situations. The biblical legislation (like that of the rest of the ANE) usually avoids theoretical speculation on principles and norms in order to privilege the presentation of concrete cases:56 in this way, it is similar to the legal models of the customary type based on the common law, as has been said. For this same reason, the collections of laws which we find in the Pentateuch are completely other than omnicomprehensive in the sense that they do not exhaust all the juridical cases possible: that responds to their specific nature as collections rather than as systematic treatises. We find another aspect of continuity which helps us to understand better what is the biblical law in the religious (or theological) basis of the laws: in fact, like the great Mesopotamian ‘codes’,57 the Bible too places the origin of its laws and precepts in God.58

                                                                                                               

55 The relationship between narrative and law in the Bible is the object of study by many: cf. C.M. CARMICHAEL, Law and Narrative in the Bible. The Evidence of Deuteronomic Laws and the Decalogue (Ithaca, NY 1985); ID., The Book of Numbers. A Critique of Genesis (New Haven, CT – London, UK 2012); O. ARTUS, Etudes sur le livre des Nombres. Récit, Histoire et Loi en Nb 13,1–20,13 (Orbis Biblicus et Orientalis 157; Fribourg Suisse – Göttingen 1997) 257–260; G. HEPNER, “The Relationship Between Biblical Narrative and Biblical Law”, Jewish Biblical Quarterly 29 (2001) 263–268; A. BARTOR, Reading Law as Narrative: A Study in the Casuistic Laws of the Pentateuch (Ancient Israel and Its Literature 5; Atlanta, GA 2010); B.P. LEE, Between Law and Narrative. The Method and Function of Abstraction (Gorgias Dissertations in Biblical Studies 51; Piscataway, NJ 2010); K.-P. ADAM – F. AVEMARIE – N. WAZANA (ed.), Law and Narrative in the Bible and in Neighbouring Ancient Cultures (Forschungen zum Alten Testament II/54; Tübingen 2012). 56 A. Alt elaborated a theory of the origin of the biblical precepts that are of a casuistic nature, claiming that they would have been introduced into ancient Israel under the form of contamination from the Canaanite culture. The specifically biblical contribution to the law, on the other hand, would be represented by the laws which Alt describes as ‘apodictic’, characterised by the fact of their being absolute and not circumstantial in their formulation by contrast with the casuistic laws. Cf. A. ALT, “Die Ursprünge des israelitischen Rechts”, Berichte über die Verhandlungen der sächsischen Akademie der Wissenschaften 86 (1934) 1–71 = Kleine Schriften zur Geschichte des Volkes Israel, I (München 1953) 278–332. Voices dissenting from this argument are not lacking: cf., for example, E. GERSTENBERGER, Wesen und Herkunft des “Apodiktischen Rechts” (Neukirchen-Vluyn 1965). For a presentation and assessment of the theory, cf. SKA, Introduction, 117–118. 57 The stele on which the code of Hammurabi is reproduced represents the king of Babylon before the god Shamash, incarnation of the sun, from whom the king is receiving the gift of the law. Cf. J. BURNSIDE, God, Justice and Society. Aspects of Law and Legality in the Bible (New York 2011) 5–6. 58 On the interpretation of the religious foundation of the biblical law, cf. GREENBERG, “Postulates”, 19; A. PHILLIPS, Ancient Israel Criminal Law. A New Approach to the Deca-

26

Chapter I: The Law in the Bible and in the Ancient Near East

As we signalled at the beginning of this chapter, we have here a controversial element which, for some, represents the root of the disparagement which is to be cast on the understanding of the legal texts of the Bible as ‘law’ pure and simple.59 That notwithstanding, it is a factor which cannot be ignored since it involves the fact that the biblical laws and precepts have to be interpreted through the conceptual grid of a fundamental theological factor: the covenant between God and Israel. Not by chance, the legislative content in the book of Exodus is called tyrbh rps, “scroll of the covenant”,60 and the place in which the gift of the law is located – namely, Mount Sinai or Horeb, according to the traditions – is intrinsically bound up with the covenant drawn up between YHWH and his people by Moses.61 From the point of view of comparison with the Mesopotamian collections, the comment of S.M. Paul is very interesting, seeing in the theophany of Sinai “the positional and functional analogue to cuneiform prologues and epilogues”.62 1.5.5. Peculiar elements of biblical law compared with the laws of the ANE It is precisely the religious foundation of the laws contained in the Bible that introduces us into the assessment of what are the peculiarities of the biblical laws compared with those of the ANE.63 The first of these is given by the fact that, by contrast with the Mesopotamian laws, the biblical ones are not promulgated by a king or linked in any way to the monarchy: we have found that the ultimate foundation of the laws is YHWH, and the same Moses who, in the

                                                                                                                logue (Oxford, UK 1970) 11–12 and the observations on their interpretation raised in JACKSON, Essays, 50–62. 59 Simply to give an example of this tendency, we record here one of the best-known statements of Maine of whom we have spoken previously: “There is no system of recorded law, literally from China to Peru, which, when it first emerges into notice, is not seen to be entangled with religious ritual and observance” (H.J.S. MAINE, Dissertations on Early Law and Custom. Chiefly Selected from Lectures Delivered at Oxford [New York 1883] 5). 60 Thus in Ex 24,7. 61 On the context of the drawing up of the covenant, which is precisely the theophany on Sinai (Ex 19–24), cf. C. HOUTMAN, Das Bundesbuch. Ein Kommentar (Documenta et monumenta Orientis antiqui 24; Leiden – New York 1997) 1–6. On the relationship between covenant and law, cf. E. GERSTENBERGER, “Covenant and Commandment”, Journal of Biblical Literature 84 (1965) 38–51. 62 S.M. PAUL, Studies in the Book of the Covenant in the Light of Cuneiform and Biblical Law (Vetus Testamentum – Supplements 18; Leiden 1970) 36. 63 For the considerations that follow, I am hugely indebted to SKA, “Le droit d’Israël”, 28–43; ID., “Biblical Law”, 149–156.

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biblical account, assumes the role of legislator,64 is never represented as a royal figure and is also chronologically prior to the Israelite monarchy. The absolute sovereignty of YHWH over every man – king included, in the case that there was one – represents the basis of the element which renders biblical law highly original and even modern, in so far as it anticipates social concepts which are attested as the common heritage only much later: I am referring specifically to the concept of universal equality before the law. In general, we can claim that ancient law is based on the principle of distinction between social classes and produces laws which, in their application, manifest a real discrimination between rich and poor, patricians and plebeians, masters and slaves, to cite just the more common. The biblical legislation, on the other hand, does not know this type of discrimination: all those who make up the people of God are equal before the law on account of the simple fact that the criterion of belonging to the people of YHWH is founded on the covenant which involves obedience to the laws and precepts which the people itself received from the hand of Moses.65 In confirmation of this thesis of universal equality before the law according to the Bible, Ska cites the theory elaborated by A. Auerbach in connection with the literary style of the biblical narratives:66 whereas classical literature does not know contamination between the noble style reserved for tragedy and the lowly style typical of comedy, the biblical accounts have not been redacted – generally, at least – according to this strict division. This is the reason why, in the Bible, even the principal characters can come from a lower social level (think of the case of David), in the same way in which a daily and banal scenario such as that represented by Moses, devoted to feeding the flock of Jethro in the desert can represent the context for one of the principal theophanies.67 1.6. “What, then, is biblical law?” An attempt at synthesis At the close of this analytical journey and on the basis of the data which we have been considering along the way, we take up again our initial question: in what terms is it possible to speak of biblical law? What are its specific characteristics? In what relation is it to be placed with the legislation of the ANE? Without claiming to give a solution to the numerous problems raised by the analysis up to now, we shall try to summarise the main data in view of a better understanding of the object of our research, namely, the penal legislation of the book of Numbers.

                                                                                                                64

Not so much in relation to the origin of the laws, which goes back to God, but in connection with their transmission to the people. 65 Cf. PAUL, Studies, 36–40. 66 Cf. E. AUERBACH, Mimesis. Die Darstellung der Wirklichkeit in der abendländischen Literatur (Bern 1946). 67 Cf. SKA, “Biblical Law”, 149–154.

28

Chapter I: The Law in the Bible and in the Ancient Near East

From the close examination of the various juridical models, of the philosophical and cultural positions which have nourished and continue to nourish the intellectual debate, modern and contemporary, it has emerged that it is harmful to claim that the biblical law does not have the right of citizenship in the collection of legal disciplines solely because it does not fit in fully with the characteristics typical of the major hermeneutical schemes. Instead of reducing it and forcing it into preformed paradigms, biblical law should rather be understood and interpreted bearing in mind all the various components – legal, moral, sapiential and religious68 – which render it a phenomenon which is many-sided and undoubtedly complex. The comparison with the legislation of the ANE – the socio-cultural as well as the geographical background against which biblical Israel found itself situated – helps in understanding the more general aspects of the nature of biblical law: like the legal collections of the ANE, the legislation of the Bible avoids the exhaustive and systematic nature that is typical of juridical treatises or of the statutory models in general in order to embody a customary kind of product containing the exposition of various cases which is intended to be a concrete indication of how to act in analogous cases. The major distinctive element which renders biblical law something unique of its kind is given by the fact that its fundamentally religious character69 takes on a strong relational tone: not by chance, the gift of the law is situated on the foundation of the covenant between YHWH and Israel which speaks of reciprocity and mutual obligation of fidelity. The relationship with God, source and origin of the law, overflows into the concept of universal equality before the law itself: from the king to the last of his servants, all are called to recognise in the precepts the provident hand of YHWH, the only true king who guides his people. Obedience to the law means the certainty of walking with God and guarantees the enjoyment of the benefits which he has promised.70

                                                                                                               

68 On the religious value of the biblical precepts and on the consequences which that involves relatively to the origin of the authority of the law itself, cf. SKA, “La scrittura era parola di Dio”, 14–15. On the relationship between ethics and penal law in Judaism, cf. M. MAY, “Jewish Criminal Law and Legal Procedure”, Journal of Criminal Law and Criminology 31 (1940) 438–447. 69 We are using the word in the fullest sense of its Latin root: religio (presumably deriving from the verb religare) refers, in fact, to a link, to a profound relationship. 70 Only by way of exemplification of what has just been said, cf. Deut 4,1–2.6: “Now therefore, Israel, hear the statutes and ordinances I am teaching you to observe, that you may live, and may enter in and take possession of the land which the LORD, the God of your ancestors, is giving you. 2 In your observance of the commandments of the LORD, your God, which I am commanding you, you shall not add to what I command you nor subtract from it […] 6 Observe them carefully, for this is your wisdom and discernment in

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The other typical element, finally, which, moreover, lays its roots in the relational nature of biblical law is constituted by the fact that the norms and precepts are conveyed within a narrative, an account which speaks of life lived and which is nourished almost by osmosis of the continual encounter between God and man. In its own narrative, Israel is being formed as the people of God: in this sense, the law – which can be defined as a ‘narrated’ law – is a fundamental element of the process of identity. Supported by these results, we can now pass to the analysis of the general characteristics of one specific part of the biblical legislation: that containing the penal laws, with special attention to the book of Numbers.

                                                                                                                the sight of the peoples, who will hear of all these statutes and say, ‘This great nation is truly a wise and discerning people’” (NAB 2011).

Chapter II

Biblical Criminal Law and the Book of Numbers The difference between civil law and criminal law turns on the difference between two different objects which law seeks to pursue – redress or punishment. The object of civil law is the redress of wrongs by compelling compensation or restitution: the wrongdoer is not punished; he only suffers so much harm as is necessary to make good the wrong he has done. The person who has suffered gets a definite benefit from the law, or at least he avoids a loss. On the other hand, in the case of crimes, the main object of the law is to punish the wrongdoer; to give him and others a strong inducement not to commit same or similar crimes, to reform him if possible and perhaps to satisfy the public sense that 1 wrongdoing ought to meet with retribution.

These words of the British jurist William Martin Geldart (1870–1922) are a good reproduction of the classic distinction between civil and criminal law according to the canons of the Anglo-Saxon juridical system which basically mirror the teaching of the various modern legal systems on the subject. In tackling the discourse relating to the biblical legislation of a criminal or penal nature, we cannot prescind from this fundamental question: does there exist in the Hebrew Bible a distinction that is more or less clear between civil laws and penal laws? Inasmuch as the question is simple in its formulation, it could be concealing some not insignificant traps to the extent in which it is leaning on concepts which, as we have seen, assume a background which is culturally and chronologically different from that of the ANE in general and of the Bible in particular. The very description “biblical penal legislation” could turn out to be anachronistic and misleading if we do not take proper account of all the clarifications that we are going to be making in the course of the present chapter. As usual, therefore, the methodological wisdom to be adopted will consist in the avoidance of applying to the legislative texts of the Bible the preconceptions typical of the modern juridical models, seeking to remain open to grasping the quid unicum represented by the laws contained in the Bible.

                                                                                                                9

1 W.M. GELDART, Introduction to English Law (ed. D.C.M. YARDLEY) (Oxford, UK 1984) 146.

1. Criteria distinguishing “civil” and “criminal” law in the Bible

31

1. Criteria distinguishing “civil law” and “criminal law” in the biblical legislative texts 1. Criteria distinguishing “civil” and “criminal” law in the Bible

1.1. The state of the art in recent literature Some scholars apply to the biblical law the widespread judgement on the basis of which it is claimed that the ancient peoples did not know the distinction between civil laws and penal laws,2 ending up by considering the biblical legislation as a whole as criminal law. In all probability, that is due, at least in good measure, to the fact that the biblical legal collection par excellence, namely, the Decalogue, consists of precepts the fundamentally religious nature of which refers to the covenant3 with God. The violation of any one of these precepts is understood as a violation of the whole covenant, and the sanction which follows can scarcely be described as anything other than a punishment: hence the classification of the law as criminal law.4 Anthony Phillips employs the same argument – that is the definition of penal law working from the legal high point of the Bible, represented by the Decalogue – to describe the civil laws by way of contrast, so to speak: in practice, he considers as civil law (or “law of tort”, according to his description) any precept the violation of which does not serve to undermine the covenant between YHWH and the people, and thus does not come into the category of criminal law.5 This scholar presses things further by maintaining that Israel, by contrast with all the other peoples of the ANE, not only was aware of the distinction between crime and tort but also had a technical knowledge of the legal concept of crime, based precisely on the fact that the Decalogue was the Israelite penal code.6

                                                                                                                2

It appears that the first evidence of a sharp distinction between civil and penal laws goes back to the Norman invasion of England (1066): cf. K. PENNINGTON, The Prince and the Law, 1200–1600. Sovereignty and Rights in the Western Legal Tradition (Berkeley, CA 1993) 1–7. 3 Very significantly, in Deut 9,15, Moses describes as tyrbh twxl ((“tables of the covenant”) the tablets of stone on which YHWH had written the law, recalling the strong link between the covenant and the observance of the precepts. 4 Thus, for example, GREENBERG, “Postulates”, 11–13; PAUL, Studies, 37. 5 He states peremptorily: “From the point of view of Yahweh, the Decalogue was Israel’s constitution” (PHILLIPS, Ancient, 11). 6 “[…] In contrast to all other ancient Near Eastern legal codes, Israel technically distinguished the legal concept of ‘crime’, the Decalogue being pre-exilic Israel’s criminal law code” (PHILLIPS, Ancient, 153). The greatest problem with this theory is the fact that it risks remaining a petitio principii to the extent to which it is based on postulates (to take up, fairly, the expression dear to Greenberg) the validity of which is assumed but not demonstrated. Such is the case of the postulate relating to the statutory nature of the Decalogue, to give the most striking example, but the list could be continued: again, in connection with the Deca-

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Chapter II: Biblical Criminal Law and the Book of Numbers

For his part, Bernard S. Jackson examines Phillips’s position critically, arguing for the difficulty of finding in the biblical laws and those of the ANE all the following attendant circumstances which Phillips indicates as necessary if one is to speak of crime: “The feeling of danger to the community; the public character of the prosecution; the nature of the penalty; and the inability of the victim to pardon or compromise”.7 Taking up other authors,8 Jackson holds that, as far as the ancient legal systems are concerned, the single discriminating factor between civil and criminal law to which we can go back with a satisfactory degree of certainty is the first of those indicated by Phillips, that is, the perception of a danger to the community. In other words, the criminality of the action would be determined by the social danger of the one who committed it. The other criteria indicated by Phillips do not find adequate support in the texts which we possess. 1.2. A proposal to distinguish the norms based on the nature of conflict In his recent study, Martin J. Buss proposes an interesting system to distinguish the nature of the laws starting out from the comparison between the law of Israel and that of the other traditional legal systems (some of which are totally separate from the Israelite-biblical cultural orbit, as, for example, the African or Asian systems), with the aim of establishing the existence or not of common criteria in the management and resolution of conflicts.9 The fundamental distinction between the different types of conflict is based on the legal relationship between the groups of people involved: therefore, generalising in the extreme, we can say that when these groups are foreign to each other from the point of view of legal discipline, we are in the presence of an external conflict which is generally described as war; when, on the other hand, the conflict involves people or small groups belonging to the same clan or family, who are subject to the same system of laws, then one speaks of internal conflict.

                                                                                                                logue, admitted and not conceded that it was indeed the “criminal law code”, how does one prove that it already existed in complete form (and what form?) before the Exile? 7 JACKSON, Essays, 55. 8 In particular, he cites A.S. DIAMOND, Primitive Law (London, UK 21950) 278–279. 9 Cf. M.J. BUSS, “The Distinction Between Civil and Criminal Law in Ancient Israel”, Toward Understanding the Hebrew Bible. A Form-Critical Approach (Hebrew Bible Monographs 61; Sheffield, UK 2013) 44–58. In fact, this is an enlarged and updated revision of an article already published by him with the same title in A. SHINAN (ed.), Proceedings of the World Congress of Jewish Studies, I (Jerusalem 1997) 51–62.

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In its turn, the management of internal conflict envisages two procedures: the first consists in an immediate resolution of the outstanding matter by means of the parties directly involved;10 the second, on the other hand, envisages the transferring of authority to a third party, called on consensually to arbitrate in the conflict.11 Both these possibilities fall under the category of a juridical case which can be described as “settlement law”. There is a third type of conflict, which can also be described as internal since it opposes an individual to a group of people (family, clan, tribe…) juridically related to him through all of them being subject to the same laws. The punishments that accompany the resolution of this type of conflict involve temporary exclusion (forced exile, detention in prison…) or definitive exclusion (through ostracism or the death penalty) from the community of which the guilty party was originally a member. Precisely on account of the general nature of the punishment which it involves, this third type of conflict can be described as “exclusionary conflict”. As can be seen, the basic discriminating element between the two types of law is represented – as well as by the case of the crime committed – by the nature of the punishment which accompanies the violation: in the case of civil law, it is generally a matter of elements that are materially quantifiable, and the determination of these is reached by means of the settlement; in the case of the criminal law – although conceding that sometimes it results in condemning the criminal to material compensation for the offence committed instead of inflicting an exclusory penalty – in the majority of cases, it is a matter of punishments which the guilty party pays in his own body, and the remunerative character is not materially quantifiable.12 Alongside the nature of the punishment, a further discriminating element concerns the procedure to be adopted which varies depending on whether we are dealing with a case of settlement law or exclusionary conflict.13 According to some scholars, this procedural difference is reflected linguistically in the formulation of the biblical precepts and would represent, therefore, a

                                                                                                                10

This example comes into the case of bilateral controversy, known in the Hebrew Bible as byr. For further study, cf. P. BOVATI, Re-Establishing Justice. Legal Terms, Concepts and Procedures in the Hebrew Bible (Journal for the Study of the Old Testament. Supplement Series 105; Sheffield, UK 1994) 30–166. 11 In Buss’s opinion, the absence of a strict distinction in the ancient legal systems should be referred to these two ways of resolving conflicts and not to the separation between civil and criminal law, as common opinion maintains instead. Cf. BUSS, “Distinction”, 45. 12 For example, the condemning to death of a murderer does not compensate the family of the one who has been killed except morally. 13 For the details, cf. BUSS, “Distinction”, 46–49.

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further useful element for understanding the nature of the precepts themselves and their classification.14 On the basis of all these distinctions and applying – with the customary due caution – the modern, more classical categories to the laws contained in the ancient texts and so also in the Bible, one can describe as civil law every biblical law which pertains to the regulation of a conflict internal to individuals or groups of people bound together by some form of reciprocal belonging, the nature of which requires an agreement as the form of settlement. Symmetrically, one can consider as criminal law every biblical law which regulates an internal conflict opposing an individual to the entire community or to a group of members or to its head with a settlement that sanctions the exclusion (temporary or definitive) of the offender from the community itself.15

2. Criteria for the cataloguing and structuring of biblical laws 2. Criteria for the cataloguing and structuring of biblical laws

Up to now, we have tried to point out some possible criteria of distinction between civil laws and criminal laws within the Bible. The theoretical possibility of a differentiation of the individual laws, however, must not make us lose sight of another very important factor to which, moreover, we have previously alluded: in the legislative collections of the Bible – and the same can be said for the other legal collections of the ANE – one does not come across a neat separation between “civil law” and “criminal law” such as we understand it in modern terms. In other words, whoever starts out with the intention of finding in the Bible a block of material comparable to the “penal code” or “penal procedure”, well marked out and circumscribed, will easily run the risk of seeing his own expectations frustrated. This should not surprise us very much in view of what we have said about biblical law in general and its formation: the legislative collections of the ANE (and the biblical ones are no exception here) do not arise as systematic and exhaustive treatises of all the legal material but rather as an authoritative support of a jurisprudential nature with the ultimate object of facilitating the task of those called on to administer justice at various levels.16

                                                                                                               

14 For the details of this theory, cf. CAZELLES, Études, 124–126; E. OTTO, Kontinuum und Proprium. Studien zur Sozial– und Rechtsgeschichte des Alten Orients und des Alten Testaments (Orientalia Biblica et Christiana 8; Wiesbaden 1996) 251. 15 Cf. BUSS, “Distinction”, 44–46. 16 Cf., supra, 1.5.3.

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Nonetheless, it would be a mistake in the opposite direction to claim that the biblical legal material and that of the ANE was collected and put together haphazardly: that is shown by the attempt made by some scholars17 who have proposed some guidelines which help in the understanding of the organisational criteria of the material of the legal texts of the ANE and of the Bible, starting out from the scheme of organisation of material like that contained in the Jewish literature, specifically in works of a juridical cast such as the Mishnah or the Gemara. This approach is shown to be extremely useful to the aims of our study: respecting the peculiar nature of the text and the principles of its composition, it helps us to understand better what criteria were the basis for the grouping and classification of the biblical laws.18 Among the most important criteria of classification of the juridical laws, two general principles can be identified: the first, of a situational nature, is reflected in the overall structure of the collection and so can be described as an external principle of classification; the second, which, for symmetry, we could describe as an internal principle of classification, allows us to understand the connections which mark the logical progress of the individual precept, conferring a certain degree of homogeneity on the entire context. We see the final development of the discourse, analysing both the criteria of classification in more detail. 2.1. Situational or ‘external’ criterion of cataloguing The nature of the first criterion, the external or global one, is said to be situational in that it permits the grouping of the laws on the basis of the similarity of the circumstances which the laws themselves presuppose. Solely for the sake of example, it is possible to apply this criterion to the “covenant code”,19

                                                                                                                17

Cf., for example, M. SAN NICOLÒ, Beiträge zur Rechtsgeschichte im Bereiche der keilschriftlichen Rechtsquellen von Marian San Nicolò (Instituttet for sammenlignende kulturforskning. Ser. A: forelesninger 13; Oslo – Cambridge, MA 1931) 71–72; W. EILERS, “Die Gesetzesstele Chammurabis”, Der Alte Orient 31, fasc. 3/4 (1932) 10; G. BOYER, “Introduction bibliographique à l’histoire du droit suméro-akkadien”, Archives d’Histoire du Droit Oriental 2 (1938) 72: cited in PAUL, Studies, 106. 18 The great effort in systematising the cuneiform laws on the basis of the above criteria is due to H. Petschow the main points of whose work I shall be taking up in the following paragraphs. Cf. H. PETSCHOW, “Zur Systematik und Gesetzestechnik im Codex Hammurapi”, Zeitschrift für Assyriologie Assyriologie und Vorderasiatische Archäologie 57 (1965) 146–172; ID., “Zur »Systematik« in den Gesetzen von Eshnunna”, Symbolae iuridicae et historicae Martino David dedicatae (ed. J.A. ANKUM – R. FEENSTRA – W. F. LEEMANS) II (Leiden 1968) 131–143. 19 The application of the criteria of classification of the cuneiform laws to the biblical text of the “covenant code” is due to V. WAGNER, “Zur Systematik in dem Codex Ex 21:2–22:16”, Zeitschrift für Alttestamentliche Wissenschaft 81 (1969) 176–182. Cf., also: H. CAZELLES, Études sur le code d’alliance (Paris 1946) 156; PAUL, Studies, 106–111.

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in which one can distinguish quite clearly a series of units held together by the fact of having a common background (situation): a collection of laws relating to slavery (Ex 21,2–11) is followed by a group of laws regarding assaults or similar acts of violence (Ex 21,12–27) and then a group of precepts concerning the damage caused by domestic animals (Ex 21,28–37); and the series could continue with other groups of laws based precisely on situations that are similar among themselves. It is rather evident that this is a superficial criterion of classification (hence the description of the criterion as ‘external’), functional to the structuring of the legal text which is obtained by means of the putting together of the precepts relating to a particular situation. It will come as no surprise, therefore, that this method of arranging the laws, for example, does not take account – or at least not in a systematic way – of the distinction between cases of criminal or civil significance, to return to the modern legal classification which fits in more with our subject. 2.2. ‘Internal’ criterion of cataloguing of the laws The second general criterion of classification of the biblical laws occurs within (hence the name) the groupings of a situational character just indicated to describe a certain type of progress of the law itself: such progress could be chronological, sequential, logical, quantitative or qualitative. It is not unusual, then, to find cases in which there is a tendency to arrange two opposite cases in a common unit by means of the principle of polarity, well known also in other biblical literary genres;20 in the same way, use is made of metricostylistic elements, assonance, for example; 21 or, again, similar cases are grouped together according to the principle of parallelism, also something well attested elsewhere in the Bible. Confirmation of this can be had if we take once again as an example some of the law as of the “covenant code”,22 that is, Ex 21,33–36, the text of which we reproduce for convenience below:

                                                                                                               

20 This is the case with many sapiential or lyrical texts, the Psalms for example. On this subject, cf. P. BOCCACCIO, “Termini contrari come espressione della totalità in ebraico”, Biblica 33 (1952) 173–190; L. ALONSO SCHÖKEL, Manual de poética hebrea (Madrid 1987) 113–114. 21 This is the thesis maintained by U. CASSUTO, Biblical and Oriental Studies, I (transl. I. ABRAHAMS) (Jerusalem 1973) 1–6 and taken up (with updating) by A. ROFÉ, “The Arrangement of the Laws in Deuteronomy”, Ephemerides Theologicae Lovanienses 64 (1988) 265–287. 22 For the identification and demarcation of the sections of the “covenant code” to which we shall refer, cf. PAUL, Studies, 107.

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33

When someone uncovers or digs a cistern and does not cover it over again, should an ox or a donkey fall into it, 34 the owner of the cistern must make good by restoring the value of the animal to its owner, but the dead animal he may keep. 35 When one man’s ox hurts another’s ox and it dies, they shall sell the live ox and divide this money as well as the dead animal equally between them. 36 But if it was known that the ox was previously in the habit of goring and its owner would not watch it, he must make full restitution, an ox for an ox; but the dead animal he may keep.

As can be seen, this pericope contains a series of laws having in common the case of damage caused to others by something belonging to someone (situational external criterion). The first two verses (vv. 33–34) describe the situation with a series of details which are meant to complement each other (internal criterion of the quantitative type) and clarify each other reciprocally (internal progress of the logical and sequential type). The following two verses (vv. 35–36), in addition to the common situation, are linked to the preceding ones by the presence of the same ‘criminal’ in question, namely, the ox.23 In this connection, it turns out to be really interesting to note that the precept contained in Ex 21,37 also contains an ox among the elements involved in the description of the case:24 despite the fact that this verse introduces a new group of laws, characterised by the common situation of crimes committed against the property of another (Ex 21,37–22,16), the presence of the same animal represents an internal element of continuity which confers unity on the whole by means of the criterion of similarity.25 *

* *

Now that we have sought to throw light on the significance of “criminal law” in the Bible and on the criteria of classification of the laws contained in the legal collections of the Pentateuch, we shall now take a further step forward by restricting the field of enquiry to the laws of a criminal nature contained in the book of Numbers with the aim of better understanding their characteristics and peculiarities.

                                                                                                               

23 The use of this animal in the case law of the “covenant code” has spawned abundant literature: cf., for example, JACKSON, Essays, 108–152, and, more recently, D.P. WRIGHT, “The Compositional Logic of the Goring Ox and Negligence Laws in the Covenant Collection”, Zeitschrift für Altorientalische und Biblische Rechtsgeschichte 10 (2004) 93–142. 24 “When someone steals an ox or a sheep and slaughters or sells it, he shall restore five oxen for the one ox, and four sheep for the one sheep”. 25 Some scholars define this phenomenon in terms of ‘attraction’, ‘contamination’ or ‘association’ (cf. PAUL, Studies, 106 n. 1).

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3. The penal legislation in the book of Numbers 3. The penal legislation in the book of Numbers

In the course of our study, we have emphasised several times that the Pentateuch, despite what its Hebrew name (torah, namely “teaching, law”) suggests, cannot be understood as simply a “legal code” in the classical sense of the term: it is more correct to affirm, rather, that it contains a considerable amount of material of a legislative nature, but that this is not always separable from other types of literary material, first among them that of a narrative character. Given this general characteristic, it is difficult to deny that there are some quite neatly delimited legal collections to be found in the Torah: I am referring here, in the first place, to the three large blocks of juridical material commonly called the “Covenant Code” (otherwise known as the “Book of the Covenant”: Ex 20,22–23,33); the “Holiness Code” (Lev 17,1–25,54); and the “Deuteronomic Code” (Deut 12,1–26,15).26 Next, there is no lack of other short juridical collections outside these large ‘codes’ which we find scattered here and there in the different books of the Pentateuch and which arouse a certain amount of interest in view of their rather homogeneous legal character: to give some examples, this is the case for the laws of sacrifice in Lev 1–7, or the laws of purity and those relating to yom kippur which we find in Lev 11–15.16. The book of Numbers too, although not containing sections of law similar in nature or extent to the three large ‘codes’ indicated previously includes legal material to a quite significant degree. In view of the object of the present study, which turns precisely on the analysis of the legislation concerning cases of deliberate homicide laid out in Numbers 35, it will thus be useful and appropriate to pause and reflect on the legislative content of the book of Numbers. 3.1. The legislative texts of the book of Numbers: general considerations For a long time, the fourth book of the Torah has been passed over by biblical studies because of its difficult structure and, more generally, the peculiar characteristics of its content which at a first reading presents itself in a manner that is quite uneven.27

                                                                                                               

26 For a general presentation of each of the ‘codes’ and the relevant bibliographical references, cf. SKA, Introduction, 40–52. 27 In this connection, it is extremely telling the way in which W. Gross summarises the present situation of the book of Numbers: “Sachlich nur schwer, wissenschaftsgeschichtlich dagegen gut zu verstehen ist, dass das Buch Numeri [...] immer noch nur stiefmütterlich behandelt wird” (W. GROSS, Rezension: “Le Pentateuque en question”, Theologische Quartalschrift 170 [1990] 71). For a status quaestionis on the book of Numbers, its structure and the history of its composition, cf. T. R ÖMER, “De la périphérie au centre. Les

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One of the things which greatly strikes the reader is the alternation of literary genres within the book: a clear example of this is the sudden passage from the narrative style to the legal which in certain cases produces an even abrupt effect. Similarly, the account of events which involve the people of Israel in their journey through the desert is frequently interposed with the famous censuses which have had such an effect on the scant popularity of this fourth book of the Bible,28 without there being any apparent connection between the episode narrated and these copious lists of people. The fragmentary nature of the content (at least on the superficial level), the structural difficulties and the absence of literary sections of comparable size to those which are found in the other books of the Pentateuch29 encouraged M. Noth – in his attempt to construct the genesis of the book – to hypothesise that the present form of Numbers responds to an unsystematic assemblage of fragments of innumerable parts of the traditions differing among themselves as to origin, content and antiquity.30 Clearly, this is not the place to enter into the debate concerning the history of the formation of the book of Numbers, something which would take us very far and would digress from the main interests of this study: however, we hold it important to recall some proposals for a solution to the problem relating to the structure of the text which may help to overcome the negative prejudice which is very general and give an account of the intelligence of the editorial work of those responsible for the final form of the book of Numbers.

                                                                                                                livres du Lévitique et des Nombres dans le débat actuel sur le Pentateuque”, The Books of Leviticus and Numbers (ed. T. R ÖMER) (Bibliotheca Ephemeridum Theologicarum Lovaniensium 215; Leuven 2008) 3–34; and, more recently, S KA, “Old and New”, 102– 116. 28 In order to have full awareness of how much of an influence the lists of censuses have had (and can be said to continue to have) on the overall perception of the book, it is enough to recall its Greek title, ARIQMOI (“Numbers”), which survives in the Christian tradition and is that better known to the public at large. 29 It is sufficient to think of the patriarchal cycles of the book of Genesis or of the accounts of the deeds of Moses in the book of Exodus, to recall only some of the best-known examples. Noth does not take explicit account of the Balaam cycle because, in his opinion, these texts “stand out clearly from those general directives whose purpose is to introduce exact rules and ordinances, which are presumably to be thought of as coming from a fairly late period” (NOTH, Numbers, 4). 30 It is what Noth describes as the “Fragment Hypothesis”: cf. NOTH, Numbers, 4.

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3.2. The general structure of the book of Numbers According to a good number of the commentators, it would be possible to identify three great thematic moments in the book of Numbers with respect to the itinerary which the people travel while the narrative unravels, corresponding to the principal stages of Israel in the desert and which could be entitled thus: Israel at Sinai (Num 1,1–10,10); the march from Sinai to the plains of Moab (10,11–22,1); Israel in the plains of Moab (22,2–36,13).31 Even if there is a certain amount of agreement on the identification of these three moments, there is not the same unanimity among the exegetes where their function within the book is concerned. Some scholars hold that these moments have a structural function and so arrange the book into three parts, based on criteria that are merely geographical-topographical.32 However, other exegetes maintain that the deciding element is not represented by the topography of the journey completed by the people but rather by some thematic elements: among these scholars, for example, is D.T. Olson who finds a bipartite structure in the book, marked by the passage between the old generation which was witness to the events of the Exodus and wiped out after the episode of Baal Peor (Num 1,1–25,18) and the new generation which will enter the promised land instead (Num 25,19–36,13).33 For his part, R.P. Knierim also understands the structure of Numbers in a bipartite form, insisting on the necessity of subdividing the book from the starting point of an analysis of the form and content and not just from textual indicators such as the geography or chronology of the events. He points exclusively to the thematic element which reproduces the actual motif of the people’s journey: starting out from the literary genre of the military campaign, he identifies precisely in the march of conquest the basic thematic element of the structure. Resting upon the sequential scheme “plan-execution of plan”, he proposes to interpret the content of Numbers as a military campaign by means of the arrangement of the book in two parts: preparation for Israel’s

                                                                                                                31

For the titles of the sections, cf. SKA, Introduction, 36. It is necessary to point out here that there is not as much agreement as to the beginning and end of each of these three parts: in particular, there is a problem about the end of the second section. For the details of the various positions, cf. D.T. OLSON, The Death of the Old and the Birth of the New. The Framework of the Book of Numbers and the Pentateuch (Brown Judaic Studies 71; Chico, CA 1985) 34–35 and relevant bibliographical references. 32 So, for example, G.B. GRAY, A Critical and Exegetical Commentary on Numbers (International Critical Commentary; Edinburgh 1903) xxvi–xix; H. HOLZINGER, Numeri (Kurzer Hand-Commentar zum Alten Testament 4; Tübingen – Leipzig 1903) v–x; J. DE VAULX, Les Nombres (Sources Bibliques; Paris 1972) 11–13. 33 Cf. OLSON, Death, 43–125.

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march, beside Sinai (Num 1,1–10,10); Israel’s march in the desert (Num 10,11–36,13).34 Taking his cue from Knierim’s observations relating to the arrangement of the text, J.L. Ska completes them, elaborating a further structural criterion: like Knierim, he recognises a fundamental bipartite structure in the book; but starting from considerations of a semantic character, relating to the vocabulary of taking possession and conquest, he shows convincingly that the conquest proper begins only after Num 21,21.35 That is the reason why he proposes to arrange the second section – the one which in Knierim’s scheme recounts the execution of the plan – further into two subsections: the first describes Israel’s march in the desert (Num 10,11– 21,20), while the second marks the beginning of the conquest proper (Num 21,21–36,13).36 3.3. The organisation of the legislative material of the book of Numbers The theoretical models which we have just presented show just how ungenerous the past generations of scholars have been in tackling the question of the general structure of the book of Numbers. In fact, although it is a complex book with an undoubtedly less clear structure than the other biblical books, statements like that of Martin Noth on the total absence of system in the organisation of the literary material quoted at the opening of the previous section do not appear to be readily sustainable. Nevertheless, precisely from the critical words of Noth we can grasp an element which, if applied to the legislative texts contained in Numbers can help us to understand better its nature and characteristics. Speaking of the impossibility of finding in the book of Numbers the sources which the classical documentary hypothesis sets at the base of the formation of the other books of the Pentateuch, Noth claims: “If we were to take the book of Numbers on its own, then we would think not so much of ‘continuous sources’ as of an unsystematic collection of innumerable pieces of tradition of very varied content, age and character (‘Fragment Hypothesis’)”.37

                                                                                                               

34 Cf. R.P. KNIERIM, “The Book of Numbers”, Die hebräische Bibel und ihre zweifache Nachgeschichte. Festschrift für Rolf Rendtorff zum 65. Geburtstag (ed. E. BLUM – C. MACHOLZ – E.W. STEGEMANN) (Neukirchen-Vluyn 1990) 155–163; R.P. KNIERIM – G.W. COATS, Numbers (The Forms of the Old Testament Literature 4; Grand Rapids, MI – Cambridge, UK 2005) 9–16. 35 The argument concerns the use of verbs like “to take possession’ or “to occupy” which appear in the account of the campaign against the Amorite kings (Num 21,21–26). Cf. SKA, Introduction, 37. 36 Cf. SKA, Introduction, 37–38. 37 NOTH, Numbers, 4: my italics.

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It is precisely this idea of ‘fragment’38 which I intend to borrow, applying it to the legal material in Numbers: in my opinion, in fact, the hypothesis that the legal texts of our book represent literary ‘fragments’ which can be linked to different traditions and historical moments can help us to understand a little better the reason for the presence and the rationale of the arrangement of the legislative material in the fourth book of the Torah, things that are otherwise difficult to understand.39 We shall seek to see in what way. To paraphrase Hegel,40 we could say that truth, that is, the understanding of the significance of the legislative material of our biblical book is ot be sought for in its totality, understood as a whole and not as the arithmetic sum of the individual textual structures. To look carefully, it is only to a summary and overall glance that the laws of Numbers appear as uneven and even without order: but if they are considered in their individuality, the legislative ‘fragments’ contained in it represent an important thread in the general understanding of the entire book. In fact, if, from a merely synchronic point of view, the presence of the legislative texts in the book of Numbers can constitute a problem, because it causes not a few difficulties in the superficial structure of the literary material, from the diachronic point of view, it represents a notable resource in so far as it allows us to conjecture about the history of the composition of the book, by means of attempting to situate the various legislative ‘fragments’ in their original Sitz im Leben. And, from the fact that, according to many contemporary specialists in the book of Numbers, the so-called fourth book of Moses could be ascribed to one of the final stages in the redaction of the Torah,41 a

                                                                                                                38

I do not know how far it is conscious or not, but is rather clear that Noth is referring here – if from none other than the terminological point of view – to the theory which the history of the exegesis of the Pentateuch knows as the Fragmenthypothese, elaborated by J.S. Vater and W.M.L. de Wette at the beginning of the nineteenth century. For further study, cf. SKA, Introduction, 103. 39 In general, scholars have little confidence with regard to the organisation of the legislative texts in Numbers: in this connection, the said Noth increases the dose of scepticism expressed in relation to the general structure of the book, claiming that the legislative texts of the first part (but the same goes for the last chapters) “consist of numerous individual units, having no connections with one another and in whose sequence no factual arrangement can be discerned” (NOTH, Numbers, 6). Similarly, Holzinger notes especially in the second part of the book the absence of any connection between narrative and legislative material with prejudice to the general understanding of the structure of the text (cf. HOLZINGER, Numeri, x). 40 This is the famous statement of the German philosopher: “Das Wahre ist das Ganze” (G.W.F. HEGEL, Phänomenologie des Geistes [Berlin 1807] 24). 41 This is the opinion of E. OTTO, “Innerbiblische Exegese in Heiligkeitsgesetz Levitikus 17–26”, Levitikus als Buch (ed. H.-J. FABRY – H.W. JÜNGLING ) (Bonner Biblische Beiträge 119; Berlin – Bodenheim 1999) 181–182; T. RÖMER, “Nombres 11–12 et la question d’une rédaction deutéronomique dans le Pentateuque”, Deuteronomy and Deuter-

3. The penal legislation in the book of Numbers

43

better understanding of the stages of its formation – obtained through the study of the legislative ‘fragments’ – would end up by having a positive effect on the reconstruction of the redactional process of the entire Pentateuch in its present form. Among other things, the application of this revisited “fragment theory” to the legislative material of the book of Numbers confers a better and greater sense on the study of some of the laws and precepts the presence of which would not seem to be in any way justified by the literary context in which they find themselves directly inserted and from which they appear to be totally detached.42 A further element of interest of the legal texts of the book of Numbers is represented by the fact that, while some of the laws contained there are presented as real complements of the legislation presented in the canonically preceding books,43 others look like the re-presentation of precepts already present in the “great codes” of which we have spoken; this is the case with Num 35,6–34 which represents the most appropriate example for us, since it is the object of the present study.44 Both in the case of the supplementary legislation (or complementary, if you wish) and in that of the re-presentation of laws already prescribed in the other legislative texts, we are dealing with important material. Perhaps this importance is not immediately discernible in the legislative text per se, given the difficulty of understanding its literary function and its connections with the immediate literary context; but it certainly appears clearer if one extends the object of the enquiry to the world – understood as society, historical moment etc. – which the text presupposes and of which it continues, indirectly, to speak.

                                                                                                                onomic Literature. Festschrift C.H.W. Brekelmans (ed. M. VERVENNE – J. LUST) (Bibliotheca Ephemeridum Theologicarum Lovaniensium 133; Leuven 1997) 497–498; R. ACHENBACH, Die Vollendung der Tora. Studien zur Redaktionsgeschichte des Numeribuches im Kontext von Hexateuch und Pentateuch (Beihefte zur Zeitschrift für Altorientalische und biblische Rechtsgeschichte 3; Wiesbaden 2003) passim; F. COCCO, Sulla cattedra di Mosè. La legittimazione del potere nell’Israele post-esilico (Nm 11; 16) (Collana biblica; Bologna 2007) 234–258. Cf. RÖMER, Leviticus and Numbers, 23. 42 This is done, for example, by D.T. Olson, studying the literary and theological role of some of the laws in the book of Numbers (specifically Num 15 and Num 36,1–12), starting from their location in the final text: cf. OLSON, Death, 166–177. 43 This is the opinion of T. Römer, who, in connection with the legislative material contained in Num 1–10 and in the final part of the book, speaks literally of “lois supplémentaires”: cf. RÖMER, Leviticus and Numbers, 23–25. 44 Precisely for this reason, I shall engage with the text and its formation with an abundance of details in the following chapters: for now, I shall refer to it only by way of example.

44

Chapter II: Biblical Criminal Law and the Book of Numbers

If we turn to Num 35,9–34, this text puts forward a detailed piece of legislation concerning the procedure to be adopted in cases of manslaughter or unintentional homicide (and not only this, as we shall see): a topic which according to traditional opinion has already been regulated by the Covenant Code (Ex 21,12–14) and the Deuteronomic Code (Deut 19,1–13), and which is found laid down again in Josh 20,1–7. Seeing that – at least apparently – we are dealing here with an element that has already been clarified, why does the book of Numbers return to it and with greater emphasis compared with the other parallels? What is hidden behind the composition of this legislative text and its location in its present context? The next step of our study will take us precisely within the text of Num 35,9–34 to allow us to offer an answer to the questions just raised, seeking to understand better what is the specific contribution of this pericope to biblical criminal law.

Chapter III

“Repetition or Reformulation?”. The Curious Case of Num 35:9–34 As we have already touched on in the introduction, most of the commentators on Num 35,9–34 see contained in this text a law concerning the “cities of asylum”, set up to protect someone who had killed another without having had the intention of doing so. Now, although with all the specific differences, this involves holding on to the idea that the text of Numbers is none other than a repetition – perhaps adapted, extended, brought up to date but nonetheless a repetition – of a piece of legislation already known in the Torah (cf. Ex 21,12–14; Deut 19,1–13) and even in the Deuteronomistic history (cf. Josh 20,1–9). As we will be able to demonstrate shortly, the exegetical analysis of the text of Num 35,9–34 can lead to a wholly different interpretation which helps us to understand this text not as mere repetition but as a total reformulation of the biblical criminal legislation relating to cases of homicide. Starting off from an approach that is predominantly synchronic in nature and which considers the text in its final form, we shall begin with the demarcation of the pericope, seeking to locate the passage in its immediate context in order next to proceed to an hypothesis about the structure of the text. Then each of the verses of the pericope will be subjected to the different ways of exegesis with the aim of understanding better its significance and establishing the basis of some hypotheses on the history of the composition of the text which we shall get down to in the following chapter.

1. The pericope in its literary context: demarcation and structure 1. The pericope in its literary context: demarcation and structure

1.1. The beginning of the pericope To judge from the substantial agreement which one encounters among the majority of commentators on this text, the demarcation of our pericope does not seem to present particular difficulties, at least as far as its beginning is concerned. In fact, even if it is anticipated in a certain way by the reference in Num 35,6, to which we shall return shortly, the theme of the designation of some cities as places of refuge for the killer represents the guiding thread for

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Chapter III: “Repetition or Reformulation?”. The Curious Case of Num 35:9–34

the whole pericope: it is introduced quite clearly in v. 9, through recourse to one of the formulae typical for introducing divine speech, and its development lasts for the entire chapter as far as v. 34.1 That said, we cannot ignore a certain thematic contiguity of our pericope with the verses immediately preceding it: in fact, Num 35,1–8 contains the divine arrangements relating to the cities which the Israelites would have to reserve for the levites once they had entered into possession of the promised land. Beyond the most evident connection represented by the common theme of “cities to be reserved” which links the two pericopes on the basis of one of the principles of the structuring of similar laws noticed in the previous chapter,2 there are at least two further elements which – although without putting into discussion the universally accepted subdivision of the text of Numbers 35 into two pericopes (vv. 1–8; 9–34) – confer a certain basic unity on the entire chapter. The first unifying element is represented by the words of v. 1, in which we read: “YHWH spoke to Moses on the plains of Moab by the Jordan opposite Jericho”. This is clearly one of the classical formulae used to introduce divine speech, in this particular case enriched by a geographical detail rather typical of the final part of the book of Numbers3 and one which repeats word for word the formula contained in Num 33,50. In both the passages cited (Num 33,50; 35,1), the words of YHWH to the people introduce a series of arrangements which the sons of Israel will have to put into practice in their new state as occupants of the land of Canaan. The peculiar characteristic arises from the fact that, in both cases, this formula functions as a general introduction to a broader subject which is arranged in textual units which are smaller but which are complete in their turn and, in a certain sense, independent. In the specific case of Num 33,50, the formula is an overall introduction to the series of divine speeches which last until Num 34,29 and which can all be reduced to the partition of the land among the various tribes;4 similarly, it can be argued that, in Num 35,1, the

                                                                                                               

1 So, for example, GRAY, Numbers, 469; NOTH, Numbers, 254; DE VAULX, Nombres, 396; A.G. AULD, “Cities of Refuge in Israelite Tradition”, Journal for the Study of the Old Testament 10 (1978) 27; P.J. BUDD, Numbers (Word Biblical Commentary 5; Waco, TX 1984) 379–380; E.W. DAVIES, Numbers (New Century Bible Commentary; Grand Rapids, MI 1995) 359; B.A. LEVINE, Numbers 21–36. A New Translation with Introduction and Commentary (The Anchor Bible 4A; New York 2000) 553; L. SCHMIDT, “Leviten- und Asylstädte in Num. XXXV und Jos. XX; XXI 1–42”, Vetus Testamentum 52 (2002) 103; ACHENBACH, Vollendung, 598–600; W.W. LEE, Punishment and Forgiveness in Israel’s Migratory Campaign (Grand Rapids, MI 2003) 205; KNIERIM – COATS, Numbers, 324. 2 Cf., supra, section 2.2. of the second chapter. 3 The reference to the “plains of Moab” returns in Num 26,3.63; 33,48–50; 35,1; 36,13. 4 The “general introduction” represented by Num 33,50–56 follows the first literary unit (34,1–15) relating to the borders of a single tribe; then, the second (Num 34,16–29), con-

1. The pericope in its literary context: demarcation and structure

47

formula performs the function of introducing not only the pericope relating to the Levitical cities (vv. 2–8) but also the following one about the “cities of refuge” (vv. 9–36). The second element that confers a certain degree of unity on the whole of chapter 35 is represented by the content of v. 6. As outlined in the opening of the section, the information which is found there has all the air of being a prolepsis of the theme which will occupy the entire pericope of Num 35,9–34, since it anticipates the problem relating to the treatment of inadvertent homicides which will be treated extensively in the following literary unit. In fact, in Num 35,6, we read: Now these are the cities you will give to the Levites: the six cities of asylum which you must establish for the homicide to run to, and in addition forty-two other cities.

The instruction to count the six “cities of refuge” for the killer5 in the overall number of the Levitical cities undoubtedly brings about the effect of harmonising the content of the two pericopes (that on the “Levitical cities” and that of the “cities of refuge”), similar to what happens in Josh 21, one of the parallel texts with which we shall be concerned in the course of our study.6 As anticipated, although conceding that these elements confer a certain degree of unity on the chapter, they are not to be considered as an alternative hypothesis for the division of Numbers 35 into two complete pericopes; rather, they attest a final redactional piece of work, quite a careful one, which it will be convenient to dwell on when we consider the history of the composition of our text. 1.2. The conclusion of the pericope Taking account of the number and variety of opinions about the conclusion of the pericope, we do not find the same breadth of consensus which we saw in relation to the beginning of the passage. In the opinion of G.B. Gray, for example, the legislation relating to the “cities of refuge” would take up only vv. 9–24, while the remaining verses of the chapter (25–34) are understood by him generically as “legal procedure in case of homicide”.7

                                                                                                                taining the names of the heads of each of the tribes. Both pericopes are introduced by the summary formula: “YHWH spoke to Moses” (Num 34,1.16). 5 In the course of the analytical exegesis, we shall have ample time to return to the importance of the non-determination of the homicide: here (as in so many other cases within the pericope) the term xcr is used simply without any specification. 6 We are referring here specifically to Josh 21,13.21.27.32 where, in the context of the calculation and list of the cities assigned to the levites and priests the syntagma xcrh jlqm ry[ (“city of refuge of the murderer”) occurs to designate that some of them had been conceived as a refuge for murderers. We shall return to the relationship between these texts of Num 35 and Josh 20–21 in the next chapter. 7 Cf. GRAY, Numbers, 469–476, especially 469.

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Chapter III: “Repetition or Reformulation?”. The Curious Case of Num 35:9–34

For his part, M. Noth reveals an attitude that is rather wavering with regard to the limits of the pericope: even if at the beginning of his comment on Numbers 35 he seems to consider the chapter as subdivided into two pericopes (vv. 1–8; 9–34) having as their themes “two disparate subjects, the second of which has nothing to do with the theme of allocation of territory”,8 in the course of his analysis, he proceeds as if the chapter in question were composed not of two but of four textual segments (vv. 1–8; 9–15; 16–29; 30– 34) and advances serious doubts on the homogeneity of the block represented by vv. 9–34.9 Although substantially adopting Noth’s subdivision of the verses, J. de Vaulx maintains that, despite some internal difficulties,10 the pericope 35,9– 34 is to be regarded as basically unitary. In his opinion, the internal subdivisions of the pericope, which he also borrows from his predecessor, act rather as articulations of a thematic character and are to be understood as functional to the development of the argument. Similarly, E.W. Davies interprets Numbers 35 as a bipartite text, even if, in introducing the exegetical analysis of the chapter, he points out in the first line the four thematic segments indicated by Noth, with slight differences regarding the last block.11 Along these lines, we find also L. Schmidt, for whom the whole chapter consists of two pericopes (vv. 1–8; 9–34), the second of which is not lacking in uniformity from the literary point of view,12 although it can be arranged into three passages from the thematic perspective: assignment of the six cities of refuge for the involuntary killer (vv. 10–15); exposition of the criteria distinguishing between voluntary and involuntary homicide and duration of the refuge (vv. 16–29); further regulations concerning homicide and general conclusion (vv. 30–34).13 W.W. Lee also understands the entire chapter of Numbers 35 as arranged in two stages, corresponding to the two pericopes commonly recognised in it: Levitical cities (vv. 1–8) and cities of refuge for the involuntary killer (vv. 9– 34). He is different, however, in his hypothesis distinguishing the internal passages in the second pericope, claiming that it consists of only two parts:

                                                                                                                8

NOTH, Numbers, 253. Cf. NOTH, Numbers, 255. This opinion is shared by Graeme Auld, who, moreover, in recording Noth’s subdivision, incorporates the third and fourth segments (vv. 16–34) in a single block: cf. AULD, “Cities of Refuge”, 27. 10 De Vaulx describes these internal difficulties of the pericope as “difficultés de détail” and summarises them in these terms: “Doublet 11a et 12a; obscurités v. 13, 14; place du v. 29; caractère erratique du v. 30” (DE VAULX, Nombres, 397). 11 Cf. DAVIES, Numbers, 353. 12 “Num. xxxv 9–29 ist somit literarisch einheitlich” (SCHMIDT, “Leviten- und Asylstädte”, 105). The contrast with Noth is revealed precisely in this point: otherwise, Schmidt is clearly adopting Noth’s thematic articulation of the text. 13 Cf. SCHMIDT, “Leviten- und Asylstädte”, 105. 9

1. The pericope in its literary context: demarcation and structure

49

the first (vv. 9–12) would be simply presenting the function of the cities of refuge in the form of a summary; the second (vv. 13–34) would be the detailed presentation of what was anticipated proleptically in the first.14 The commentary of Knierim and Coats also interprets the block constituted by Num 35,9–34 in a unitary way, identifying there four structural elements which largely recall Noth’s hypothesis.15 The position of B.A. Levine, on the other hand turns out to be rather different. He divides Numbers 35 into three sections: the first (vv. 1–8) concerns the Levitical cities and the cities of asylum; the second (vv. 9–29) records the law regarding homicide; finally, the third (vv. 30–34), represents a brief legal collection which mainly concerns the rules of evidence in cases which involve capital punishment.16 As can be appreciated, the particularity of this position with respect to the others indicated above consists in the fact that Levine, although being inclined like the others towards the substantially unitary nature of the second pericope of Numbers 35 (that regarding the cities of asylum), makes it end at v. 29: the exclusion of vv. 30–34 derives from the fact that he interprets the last part of chapter 35 as an addition coming from another legislative code.17 *

* *

With all due respect to the individual opinions summarised here, to my way of thinking, the text does not reveal any elements such as to put in question the unitary nature of Num 35,9–34 if the text is considered as a whole, overall and from the point of view of the final redaction of the entire book of Numbers. Developing some of the claims of de Vaulx and Schmidt referred to previously, we can hold that the passage represents a literary whole which can be split up only with difficulty, and that for two kinds of reasons: one belongs to content; the other concerns the literary form. From the point of view of content, it appears evident, even on a superficial reading, that the entire pericope is pervaded with a unifying theme, a real fil rouge which goes through it from beginning to end: I am referring to homicide, which is mentioned directly or indirectly in every verse of our passage. As M. Noth clearly causes to be understood in relation to vv. 16–29, 18 the fact that there can be parts which have been added in a second stage of the

                                                                                                                14

Cf. LEE, Punishment, 206. Cf. KNIERIM – COATS, Numbers, 325–327. 16 Cf. LEVINE, Numbers 21–36, 547–548. 17 Specifically from Ex 21,12–13 or from Deut 19,1–13. In this connection, the author expresses himself thus: “The concluding verses (Num 35:30–34) were undoubtedly appended or adapted from some other code of law” (LEVINE, Numbers 21–36, 558–559). 18 Cf. NOTH, Numbers, 255. 15

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Chapter III: “Repetition or Reformulation?”. The Curious Case of Num 35:9–34

history of the formation of the text by contrast with others does not affect the substantial unity of theme and content in the final redaction of the pericope. From the formal point of view, there is an equally clear signal which allows us to consider vv. 9–34 as a literary unit without any loosening of its continuity: we are speaking here of the literary genre in which the legislation concerning the regulation of cases of unintentional homicide is set, that is, divine speech. After the introductory formula in v. 9, it is not possible to detect any interruption in the text due to interventions by other speakers or to the introduction of other discourses: so that everything which follows v. 9 can be considered legitimately as a single, long discourse which finds its natural conclusion only in v. 34 in the solemn self-affirmation of the divinity of YHWH which amounts to a seal of promulgation of the laws recorded in the entire passage. With that, we do not intend to deny the fact that the pericope of Num 35,9–34 contains some digressions, some difficult passages – those, to put it simply, which de Vaulx calls “difficultés de détail” 19 – due presumably to the redactional history of the text: rather, one has the impression that these passages are to be understand as fragments of a single mosaic, parts relating to a whole which, in the mind of the redactor, has a sufficient degree of homogeneity. Precisely for this reason, the next step will lead us to consider the internal subdivisions of the pericope, bearing firmly in mind the assumption that what we have here are the parts of a whole that has been well put together both thematically and formally. 1.3. The internal articulation of the pericope: a structural hypothesis When treating the demarcation of the section, we were able to anticipate in a summary fashion the thematic passages on the basis of which scholars have usually marked out an internal structure for the pericope. If we put together the various opinions, it is not difficult to prove that we are dealing here with a punctum dolens inasmuch as one can say that there exists a different thematic subdivision for each of the exegetes who grapple with the study of this text. Beginning with their work, I shall seek to identify the arguments that are as firm as possible to justify the articulation of the pericope. By virtue of the typically inchoative characteristics of both the formulae contained in them, 20 vv. 9–10a are clearly comprehensible as a general introduction of the pericope and do not present any particular elements of difficulty.

                                                                                                                19 20

DE VAULX, Nombres, 397. First formula: raml hvm la hwhy rbdyw; second: ~hla trmaw larfy ynb la rbd.

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Verse 10b marks the beginning of the divine injunction designating cities of refuge for the person who has killed someone inadvertently. The exposition of this theme continues organically in the following verses up to v. 15 in which the almost literal repetition21 of v. 11b in the form of an inclusion allows us to establish a pause within the argument. Verse 16 inaugurates a series of specifications, generally of the nature of case law, appropriate for determining the different cases of malicious (16– 21) and involuntary (22–28) homicide with the object of regulating them. The discourse proceeds with a rather dense literary rhythm as far as v. 28, by means of the recourse to elements which tend to homogenisation of the text: among which we would point in particular to the repetition by way of anaphora or epiphora of verbal sequences that are very similar if not exactly identical.22 Starting with v. 22, which introduces the case of the unintentional homicide, we find a certain stylistic variation in the formulation of the law which assumes a less blunt form than in the immediately preceding verses (16–21): this does not appear sufficient, however, to postulate the distinction of these verses from the central thematic block of the pericope (vv. 16–29), since they constitute an integral part of the basic argument and, as pointed out, from a formal point of view also they contain some elements common to the previous verses. Undoubtedly, v. 29 marks a key stage in the discourse as indicated by the solemn formula enjoining the people of Israel to interpret the ordinances declared up to this point as normative juridical tools valid across time (“for you and your generations”) and space (“in all your dwellings”). Perhaps also because of the global and summarising form of v. 29, which we have just indicated, the following verses take on the contours of an appendix of a procedural character relating again to homicide (vv. 30–32) which concludes by assuming a religious tone with the mention of the theological value of the shedding of blood and the holiness of the promised land deriving from the fact that YHWH himself lives there (vv. 33–34).

                                                                                                                21

The only, slight variation is given by a verb which in v. 11b is in the form of a conversive perfect (snw) whereas in v. 15b it appears in the infinitive construct (swnl). It is evident that this variation does not substantially affect the inclusive function of the text in question. 22 An example of the recourse to anaphora is the repetition of the syntagma …b ~aw in vv. 16.17.20.22.26; and of …b wa in the remaining vv. 18.21.23. For epiphora, cf. the reiteration of the phrase xcrh tmwy twm awh xcr in vv. 16.17.18.

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Chapter III: “Repetition or Reformulation?”. The Curious Case of Num 35:9–34

If we summarise what has been said in schematic form, here is how we could describe the internal structure of the pericope Num 35,9–34: Structure of Num 35,9–34 vv. 9–10a

Introduction to the divine discourse containing the law

vv. 10b–15

Injunction to designate “cities of refuge”

vv. 16–29

Determination of different cases of homicide and their regulation

vv. 30–33

Procedural clarifications and theologico-religious conclusion

2. Exegetical analysis of Num 35,9–34 2. Exegetical analysis of Num 35,9–34

Until now, we have been considering the pericope, as a whole and from the point of view of the final form of the section, by means of a series of passages which describe a gradual progress in the text, moving from the more general aspects to the more specific. Starting out from the demarcation of the pericope, we have indicated elements of form and content which justify the impression of it as a unit, in order, finally, to be able to draw up a scheme of internal thematic articulation (structure). After this first summary survey, we have reached the moment to examine the individual tesserae which make up the mosaic, submitting each of the elements of our text to the scrutiny of exegetical analysis. The study of the individual verses, which will lead us to a better understanding of the entire pericope, will be tackled from the starting point of the thematic unities which we have indicated in the course of our proposal for the structure of the passage. Let me start by saying that I shall not dwell on the introduction (vv. 9–10a). Although it has an important function from the formal point of view in that establishes the literary genre of the pericope, it does not contain any particularly new elements from the point of view of exegetical analysis. 2.1. Injunction to designate “cities of refuge” (vv. 10b–15) The first thematic unit, devoted to the designation of the “cities of refuge” opens in v. 10b with a temporal clause which, inasmuch as it is of an incidental nature with regard to the main action of the beginning of the discourse,23 seems to have a rather important function. In fact, the use of the preposition yk with the participle ~yrb[ confers on the expression a nuance of

                                                                                                                23

The first main action is expressed in v. 11 by the verb ~tyrqhw.

2. Exegetical analysis of Num 35,9–34

53

simultaneity with regard to the main verb,24 as if wishing to indicate that the provision to be made – namely the choice of cities – has an urgent character and is to be placed among the first things to be done as soon as the people have entered the borders of the promised land. This arouses even greater interest if one takes account of the fact that Num 35,10b is reproducing Num 33,51 word for word.25 In that case, the temporal clause served to introduce a series of arrangements imparted by YHWH to his people on the plains of Moab in connection with the division of the land of Canaan which the Israelites were about to enter and possess. This is how the content of the verses immediately following (Num 33,52–54) sounds: When you go across the Jordan into the land of Canaan, 52 dispossess all the inhabitants of the land before you; destroy all their stone figures, destroy all their molten images, and demolish all their high places. 53 You will take possession of the land and settle in it, for I have given you the land to possess. 54 You will apportion the land among yourselves by lot, clan by clan, assigning a large heritage to a large clan and a small heritage to a small clan. Wherever anyone’s lot falls, there will his possession be; you will apportion these shares within your ancestral tribe.

The solemn declaration set in v. 53, precisely at the centre of the divine discourse, gives sufficient reason as to why these words can be firmly held to be the general introduction to the entire final section of Numbers which is inaugurated by summarising the stages of Israel in the desert (33,1–49) and embraces all the rest of the book to its conclusion in Num 36,13. Placing himself as the foundation of the right to possess the land, YHWH describes the character of this right, attributing to it a sense that is eminently theologico-religious: in other words, Israel will not able and must not base its possession of the land of Canaan on rights acquired on the battlefield or on whatever other way, but solely on its relation with God, the origin and source of everything that is good.

                                                                                                                24

“k presupposes an implicit comparison, a correlation between the times of the two actions, hence the notion of exact convergence of the two actions whereby the one action is immediately followed by the other: Engl. the moment or (emphatically) as soon as” (P. JOÜON – T. MURAOKA, A Grammar of Biblical Hebrew [Subsidia Biblica 27; Roma 2006] § 166 o). 25 The only, slight, variant (which, moreover, has no effect on the significance of the expression) consists of the fact that in Num 35,10b the expression “into the land” is rendered with the suffix of direction (hcra), while Num 33,51 employs the preposition la. Significantly, the Samaritan Pentateuch harmonises the two versions by correcting the text of Numbers 35 by the addition of the preposition: cf. B. KENNICOTT, Vetus Testamentum hebraicum cum variis lectionibus, I (Oxonii 1780) 357; A. VON GALL, Der hebräische Pentateuch der Samaritaner, I (Berlin 1918) ad loc; D.L. PHILLIPS, The Samaritan Version of the Book of Numbers with Hebrew Variants. A Close Textual Study (Lewinston, NY 2014) 198.

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Chapter III: “Repetition or Reformulation?”. The Curious Case of Num 35:9–34

From this solemn divine declaration, the text derives the urgency of proceeding with the destruction of any potential competition to YHWH, represented concretely by “stone figures, molten images and high places”. This urgency is expressed by means of the temporal clause in v. 51 from which our argument started and which corresponds precisely to that employed in Num 35,10b. If we compare the two texts but also their respective contexts, we could say also in the second case (that of Num 35,10b) that what causes the urgency of the provision for identifying the “cities of refuge” has a theologicoreligous foundation. In fact, in the final analysis, the purpose of the “cities of refuge” is that of avoiding the shedding of that blood which, if it cannot be considered wholly innocent, at least is not maliciously culpable, by protecting the killer from the vengeance of the avenger of blood; now, according to what is stated at the conclusion of the pericope,26 the basis of this law resides in the holiness of the promised land which is holy because YHWH lives there and so it must not be contaminated by the shedding of blood. As we anticipated, the main action of the first thematic unit – although being so solemnly introduced in v. 10b – is expressed only in v. 11 with the order to choose some of the cities of the promised land as a place of refuge for the inadvertent killer. It does not seem an exaggeration to claim that this is a verse of capital importance for a correct interpretation of the whole pericope, since it contains two of the key elements of the discourse: the title jlqm yr[, relating to the nature of the cities to be chosen; and the concrete description of the typology of homicide which is to be treated (hggvb vpn hkm xcr). Before entering on the analysis of these two syntagms, it will be a good idea to devote some words to the principal verb of the clause, ~tyrqhw, with its form in the second person plural of the hiphil conversive perfect of the root hrq. Both the base form of this verb as well as the reflexive have the general meaning of “happen, encounter, meet, befall”. However, the causative nuance of the hiphil, which occurs rather more rarely in the Hebrew Bible, 27 is generally rendered with “cause (the good fortune, the right thing) to occur”.28 Thus, the use of this form in our text would represent a sort of

                                                                                                                26

Cf. Num 35,33–34: “You will not pollute the land where you live. For bloodshed pollutes the land, and the land can have no expiation for the blood shed on it except through the blood of the one who shed it. 34 Do not defile the land in which you live and in the midst of which I dwell; for I YHWH dwell in the midst of the Israelites”. 27 Other than in Num 35,11, the verb occurs in the hiphil only in Gen 24,12; 27,20. 28 Cf. F. BROWN – S.R. DRIVER – C.A. BRIGGS (ed.), A Hebrew and English Lexicon of the Old Testament. With an Appendix Containing the Biblical Aramaic (Oxford, UK 3 1957) 899; L. KÖHLER – W. BAUMGARTNER (ed.), Lexicon in Veteris Testamenti Libros (Leiden 1953) 853–854.

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55

semantic hapax, given that it is the only place in which the root is employed to express the instruction to identify cities which are ‘appropriate’ for a specific purpose.29 2.1.1. The meaning of jl'q.mi “There is no longer any certain derivation for the words ‘ir miqlat”.30 These words of M. Noth clarify well the problem concerning the first of the two syntagms which we have indicated as important for the understanding of our text, namely, jlqm yr[. Other than in Numbers 35, the expression occurs in this syntagmatic form in Josh 20,2 and in 1 Chr 6,42.5231 which are very similar thematic contexts to our one here32 and so not particularly useful for the purposes of semantic comparison. Like the syntagmatic form in which it is contained in Num 35,11, the substantive jlqm also occurs only in contexts concerning the cities of refuge: if, on the one hand, this renders it more complicated to determine its significance more specifically, on the other hand, it allows for the development of some considerations relating to the pericope which we are studying. In fact, the total number of occurrences of the word in the Hebrew Bible is 20: the fact that over half of these are grouped in Num 35 33 encourages us to claim that here we have a key word for our text given that it occurs in each verse of the passage. Generally the word is made to derive from the root jlq the meaning of which is quite other than clear for a series of reasons,34 not least for the fact that this root has no cognates. Considering the use made of it in mishnaic

                                                                                                               

29 Thus GRAY, Numbers, 469; DAVIES, Numbers, 361–362. Working from the consideration of the spatial value of the root in the other two occurrences in Genesis mentioned above, Levine claims that we should attribute to the verb in question a nuance of “accessibility” and translates: “You shall make accessible to yourself” (cf. LEVINE, Numbers 21– 36, 554). 30 NOTH, Numbers, 254. 31 The one, weak, variant is represented by the presence of the article which does not change in any way either the value or the meaning of the expression. 32 Josh 20 is one of the parallels which will be studied in the course of our research and the reference to the “cities of refuge” in 1 Chr 6 depends quite clearly on the Pentateuchal traditions (Ex 20, Num 35 and Deut 19). 33 Here is the detailed distribution of it: Num 35,6.11.12.13.14.15.25.26.27.28.32; Josh 20,2.3; 21,13.21.27.32.38; 1 Chr 6,42.52. 34 Among the causes which render the meaning of the root obscure, Gray points out the fact that there is only one other derived form, that is, jwlq in Lev 22,23. Cf. GRAY, Numbers, 470.

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Hebrew,35 it seems that we can reduce the sense of the action to the idea of “draw in, take up/in”.36 Two aspects worthy of attention emerge from reflection on such a specialised use of the word: the first is that jlqm is considered a technical term; the second regards its use in the traditions concerning the “cities of refuge”. Let us analyse both these aspects. By virtue of the fact of being employed exclusively to indicate the “cities of refuge”, jlqm has good title to be considered as a technical term.37 That can be deduced from the fact that in the Hebrew Bible there are other words which one could use in order to speak of refuge in a more generic way: this is the case with terms such as zw[m ‘stronghold’; bgvm ‘secure heights’; swnm ‘place of escape’; hsxm ‘place of refuge’. It is pretty evident that the background common to all these words is to be sought in military language: in particular, the vertical element (relating to height, that is) which is present in the semantic connotation in some of these would refer to the orographic formation of the region of Canaan which offered an abundance of natural places of refuge situated on the heights, in the rocky caves. In the metaphorical sense, this characteristic is often attributed to YHWH, a “rock of refuge” and “bastion of defence” for the people.38 In the light of all these examples and of the variety of words available to express the idea of ‘refuge’, it is important – in so far as it characterises its force – to observe that the term jlqm is devoted uniquely to the semantic function which concerns the text that we are analysing.39 The second aspect which summons the attention of the interpreter concerns the fact that the term jlqm is missing in the other two Pentateuchal traditions

                                                                                                               

35 The Mishnah seems to employ the verb as if it were synonymous with @pa “gather, take in”. Cf. M. GREENBERG, “City of Refuge”, The Interpreter’s Dictionary of the Bible. An Illustrated Encyclopedia (ed. G.A. BUTTRICK), I (Nashville, TN 1962) 638–639. 36 Cf. BROWN – DRIVER – BRIGGS, Lexicon, 886; KÖHLER – BAUMGARTNER, Lexicon, 839; A.E. HILL, “jl'q.mi”, The New International Dictionary of the Old Testament Theology and Exegesis (ed. W.A. VANGEMEREN), II (Grand Rapids, MI 1997) 1088–1089. The other nuance of the root (“be stunted, impotent”), equally rare and rather uncertain, does not appear semantically consistent with our context. 37 So (even if in very general and brief terms) already DE VAULX, Nombres, 396, taken up by BUDD, Numbers, 381. 38 It is a language rather typical of poetic or prophetic texts: just to cite some examples, cf. Ps 18,3 where YHWH is described as ybgvm; Jer 16,19 where the prophet describes God as yz[m; Jer 17,17 in which the said Jeremiah has recourse to the term ysxm to speak of the protection accorded him by the Lord. 39 Indicative of this is the fact that, in the Interpreter’s Dictionary of the Bible, the term jlqm is not even listed under the word ‘Refuge’: the dictionary refers to “City of Refuge”, describing it as a “technical use”. Cf. J.A. WHARTON, “Refuge”, The Interpreter’s Dictionary of the Bible, IV, 24.

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57

regarding the cities of asylum:40 Ex 21,13 make use of a rather general periphrasis, speaking of “a place to which that one [homicide] may flee”;41 Deut 19,1–13 speaks uniquely of choosing some cities “so that every homicide will be able to find a refuge” (19,3) without, however, having recourse to any specific term except to the verb swn, which is rather generic.42 As we shall be able to appreciate better in the course of the analysis of the history of the composition of our text, this is an aspect closely linked with the previous one. In fact, the specialisation of the term jlqm in the sense specified above is to be understood as a progressive phenomenon:43 as such, it will show itself extremely useful when it comes to locating chronologically the traditions which speak of the cities of refuge and drawing from there the relationships of dependence. For the moment, the relevant datum is constituted by the fact that the expression jlqm yr[ in Num 35,9–34 is not understood as simply indicating a part of the territory which the Israelites would be entering to possess but rather to describe a place – in the widest sense of the word, as we shall see – devoted to a specific use: the reception of a particular category of people who could find refuge there. 2.1.2. The meaning of the root xcr The importance of the second syntagm which we pointed out in introducing the analysis of v. 11, that is, hggvb vpn hkm xcr, consists precisely in the fact that it explains with a richness of detail what is the category of people affected by the legislation relating to the “cities of refuge”. We shall dwell first of all on the significance of the syntagm vpn hkm xcr which is a concrete expression of the action of which it is speaking. We shall then go on to analyse the expression hggvb which characterises its modality. The first syntactic element is composed of two participles, the first of which (xcr) is substantivised and is generally translated with the term ‘murderer’; the second (hkm), on the other hand, has full verbal function in this case and in combination with the word vpn is a precise indication of the action

                                                                                                                40

On the other hand, jlqm is present as a technical term to designate the “cities of refuge” in Josh 20–21 and in 1 Chr 6. 41 The Hebrew term employed to describe the ‘place’ is extremely generic and quite common: ~wqm. 42 As we shall see, the emphasis in Deut 19 seems to concern the need to choose and establish the cities to which the killer can flee: hence the relative frequency of recourse to verbs in the hiphil. 43 One of the fundamental aims of comparative philology (also called glottology) consists precisely in analysing linguistic phenomena from an historical point of view, observing the semantic evolution over the passage of time. For further study, cf. R. LASS, Historical Linguistics and Language Change (Cambridge Studies in Linguistics 81; Cambridge, UK 1997).

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of taking away someone’s life by striking him to death.44 Apparently, therefore, we are in the presence of two elements which express the same idea, reinforcing it through reiteration: in fact, if the expression vpn hkm does not present particular difficulties of comprehension, the significance of the root xcr is not so simple to understand as is commonly believed.45 From a merely statistical point of view, we have here a verb that is rather rare in the Old Testament, at least if compared with the other verbs which express the action of killing:46 in fact, in the Hebrew Bible, xcr occurs 49 times in all, of which a good 20 are found in Num 35.47 The most relevant of the occurrences of the root – or at least the most well known – is certainly the one expressed within the Decalogue in the summary formula of the negative imperative xcrt al (Ex 20,13; Deut 5,17). Given the extremely concise nature of this expression, which employs the verb in an absolute way and without further specifications, it is rather difficult to attribute a particular value to the verb, and there is a plethora of interpretations. The main problem seems to concern the solution of the contradiction between the content of this precept and the validity in Israel of universally accepted legal provisions such as capital punishment or war which also involve the taking of human lives by human hands. Although openly acknowledging the difficulty of understanding the expression contained in the commandment, L. Köhler hypothesises that xcrt al is to be understood as the prohibition of taking justice into one’s own hands since capital punishment could be inflicted only by the community and not by individuals.48 Undoubtedly, we have an interesting suggestion here, even if it is not totally without difficulty, seeing that it clashes precisely with the way the root is employed in our pericope: in fact, it would turn out to be contradictory to hold that whoever provokes the death of another man without hav-

                                                                                                                44

Cf. LEVINE, Numbers 21–36, 554. For analysis of the root, cf. BROWN – DRIVER – BRIGGS, Lexicon, 953–954; KÖHLER – BAUMGARTNER, Lexicon, 907; J.J. STAMM – M.E. ANDREW, The Ten Commandments in Recent Research (Studies in Biblical Theology – Second Series 2; Naperville, IL 1967) 98–99; B. CHILDS, Exodus. A Commentary (The Old Testament Library; London 1974) 419–421; W.R. DOMERIS, “xcr”, The New International Dictionary of the Old Testament Theology and Exegesis (ed. W.A. VANGEMEREN), III (Grand Rapids, MI 1997) 1188–1190. 46 For example, grh (172 times) or the hiphil form of the root twm (201 times). 47 Cf. Num 35,6.11.12.16(x2).17(x2).18(x2).19.21(x2).25.26.27(x2).28.30(x2).31. As in the case of the term jlqm, the fact that approximately half of the occurrences of the term are condensed into our pericope can present a problem for the precise tracking down of the significance of the root on account of the lack of terms for comparison. 48 Cf. L. KÖHLER, “Der Dekalog”, Theologische Rundschau - N.F. 1 (1929) 161–184, especially 182. 45

2. Exegetical analysis of Num 35,9–34

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ing the intention of doing so (cf. Num 35,22–23) can be motivated by the intention of taking justice into his own hand! Starting out from considerations relating to the use of the root in the Hebrew Bible and from comparison with the use of similar verbs – although not synonyms as we have seen – such as grh and tymh, J.J. Stamm deduces that the verb xcr serves to indicate an “illegal killing inimical to the community”.49 This is an acute observation and correctly based on the comparison of the different semantic contexts in which the verb is employed which share the aspect of concerning members of the same covenant community: it remains, however, that not all the occurrences of the root in question can be reduced to this case of illegal killing. As noted by H.G. Reventlow 50 – and as Stamm himself admits, though indicating the fact as the exception that proves the rule51 – in Num 35,30a, the root xcr is employed both to indicate the one who has committed the crime of homicide (in which case, it has an illegal connotation) and to indicate the capital punishment to which he is subjected by the community (in this case, on the other hand, the connotation is clearly legal). In fact, the biblical text states: “Whenever someone strikes another to death, the evidence of witnesses is required to kill the murderer (xcrh ta xcry)”. In his comment on Ex 20,13, B. Childs assembles these different interpretations of the significance of the root xcr and draws an interesting conclusion, suggesting that what we have here is a verb which has undergone a semantic (and, therefore, hermeneutical) variation in the course of time.52 It is precisely

                                                                                                                49

STAMM – ANDREW, Ten Commandments, 99. Cf. H.G. REVENTLOW, Gebot und Predigt im Dekalog (Gütersloh 1962) 71–76. For his part, this author holds that the root has to do with a killing which sets in motion the blood vengeance in the form of a feud between families: Phillips is very sharp in stating that this “contention […] must be rejected” (PHILLIPS, Ancient, 84 n. 9). 51 Cf. J.J. STAMM, “Sprachliche Erwägungen zum Gebot ‘Du sollst nicht toten’”, Theologische Zeitschrift 1 (1945) 81–90. 52 Cf. CHILDS, Exodus, 420–421. In fact, F.-L. Hossfeld has also hypothesised an evolution of the root within Numbers 35, claiming that, in vv. 11–12, xcr it would serve to indicate the inadvertent killer, while, in vv. 16–24; 30–34, it would be employed to describe someone killing deliberately (cf. F.-L. HOSSFELD, “xcr”, Theologisches Wörterbuch zum Alten Testament [ed. G.J. BOTTERWECK – H. RINGGREN – H.-J. FABRY], VII [Stuttgart – Berlin – Köln 1993] 660). L. Schmidt objects (rightly, in my opinion) that the Hebrew Bible does not know of a terminological distinction between voluntary and involuntary homicide, as can be deduced from the fact that, in order to express absence of intention, the participle is accompanied by the specification which explains the situation (cf. SCHMIDT, “Leviten- und Asylstädte”, 104–105). On this subject, cf., also, the observations of D. MARKL, Der Dekalog als Verfassung des Gottesvolkes. Die Brennpunkte einer Rechtshermeneutik des Pentateuch in Exodus 19–24 und Deuteronomium 5 (Herders Biblische Studien 49; Freiburg – Basel – Wien – Barcelona – Rom – New York, NY 2007) 120 n. 443. 50

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our chapter 35 of the book of Numbers which would represent the litmus test for this phenomenon, given that it contains an abundant employment of the root equivalent to a differentiated use of it. In particular, Childs maintains that the shift in the meaning can be recognised within what we have previously described as the first part of the second thematic unit of the pericope (vv. 16–21), devoted to the determination of cases of malicious homicide and their regulation.53 Just as we shall be able to see in the comment section, this thematic unit is cadenced by an idiomatic expression: xcrh tmwy twm awh xcr, “that person is a murderer, and the murderer must be put to death”, which returns identically in Num 35,16.17.18 in epiphoric form. In this particular case, the recourse to the substantivised participle xcr has the function of describing a killer without taking account of the motivation for the act for which the punishment is certain and involves death. Childs observes the contradiction between this use of the root which assigns the term a connotation of intention and the other use of the root in Numbers 35 in which the same term xcr is employed to indicate inadvertent or unwitting homicide. Furthermore, he identifies a third level of understanding of the meaning of the verb – described as “undoubtedly later”54 – in vv. 20–24, characterised by the fact that xcr is employed to indicate a killer who acts under the impetus of enmity, deceit or hatred: in this case, the motivation of the killer would be the determining element for the threat of the punishment which follows the criminal act. As we have anticipated, this promiscuity in the use of the verb has been interpreted as the consequence of a semantic evolution to which the root has been subjected over the course of time. The extremes of this development would be from the generic description of one who has defiled himself by a crime which triggers blood vengeance to the specific description of one who has killed another on the impulse of enmity, deceit or hatred. The ultimate sense of the commandment in the Decalogue, therefore, would be that of prohibiting a killing deriving from the desire to take justice into one’s own hands, on the basis of the wrong suffered – whether real or imagined. Childs claims that it is in the middle of these two extremes that the legislation relating to the “cities of refuge” should be situated, as devised to protect the author of a homicide which – even if in certain cases it is described as the result

                                                                                                                53

Cf., supra, section 1.3. of this chapter. CHILDS, Exodus, 421. The late nature of this nuance of the verb would be proved by its use in the prophetic and sapiential literature in which the root invariably has the sense of deliberate and malicious violence: cf. Is 1,21; Hos 6,9; Job 24,14; Prov 22,13; Ps 94,6. 54

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of inadvertence from the circumstances described in the law – has no effect on the general effect of the verb.55 Childs’s proposal seems to me particularly useful for interpreting the value of the root xcr in Num 35,9–34. The composite nature of the pericope is a datum shared by almost all the commentators, as we pointed out in the section on the demarcation of the passage: if, from the synchronic point of view, that can represent a disadvantage in that it risks affecting the perception of the final text as coherent and unitary, from the diachronic point of view it proves to be a notable resource to the extent that it allows us to reflect on the stages of the composition of the text and on the logic which stands behind it. In the particular case that we are dealing with, the phenomenon which is being observed is represented by the frequent recourse to the same root (xcr) to describe actions profoundly different, if not to say opposite, in themselves: deliberate homicide (including that legitimately inflicted as capital punishment) and that resulting from inadvertence. Childs suggests a convincing reading of the phenomenon, stating that “at a somewhat late period – at least before the eighth century – a change in meaning can be observed”, but he does not manage to reach an explanatory hypothesis of the cause of the phenomenon itself. In my opinion, recourse to the same root to indicate criminal cases that are so different cannot be casually attributed to the imprecision of whoever was responsible for the composition of the text in its various layers:56 on the contrary, my view is that we could be dealing with a precise choice, a literary device of a redactional nature intended to assimilate traditions that were originally different.57 By contrast with what we have observed for the substantive jlqm, therefore, when it comes to use, the root xcr in Num 35 should not be understood as a technical term which gives a precise definition of a criminal case, but rather as a term of general character which performs the role of a suture within the text. Its recurrent use by the redactors would be aimed at the homogenisation

                                                                                                               

55 “This exception did not alter the objective context of the verb itself” (CHILDS, Exodus, 421). 56 This appears to be the explanation of B. Levine who, in fact, emends the text, claiming that its author was being loose in his description of the guilty party (LEVINE, Numbers 21–36, 554). 57 Of the same opinion is BARMASH, Homicide, 121 n. 15, who reconstructs the redactional history of Num 35,9–34 precisely by starting out from the different connotations which the word takes on within the pericope (along with other factors of a literary type). However, her reconstruction of the stages of formation of the text is based on different points of view as will emerge in the rest of the present chapter.

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of the periscope.58 Nonetheless, as will emerge clearly from the course of the exegetical analysis, when it comes to meaning, the specific semantic value which xcr assumes in some basic passages of the text makes it a key term for the understanding of the novelty contributed to the legislation relating to the cities of refuge by Num 35,9–34. Verse 11 concludes with another important element on the understanding of which it is necessary to pause inasmuch as it is used precisely to indicate the nature of the action performed by the killer: we are speaking of the syntagm hggvb. 2.1.3. The meaning of hggvb and its specific function in Num 35,9–34 The word hggv occurs just 19 times in the Hebrew Bible and, at least to judge form the overall distribution of the occurrences, it does not greatly surprise us that the term is considered typical of the priestly vocabulary.59 The alternation of prepositions which accompany the word in its syntagmatic form does not affect the overall meaning of the expression which we are going to explain in what follows. Besides, this alternation is almost irrelevant from the statistical point of view: out of a total of 19 occurrences, a good 13 times the term appears in syntagmatic form with the preposition b; twice in the absolute state; once with the preposition l; and once with the preposition k. With regard to etymology, the term hggv is generally held to derive from ggv or hgv: this double possibility is not necessarily to be understood in terms of opposition,60 seeing that in the Hebrew Bible it is not infrequent to come across the transformation of geminate roots of the type [“[ in h“l verbs.61 The meaning of the term is usually attributed to the general notion of inadvertence,62 even if, in the specific use which the Bible makes of it, there

                                                                                                               

58 That will emerge more clearly in the section analysing v. 15, at the conclusion of the first thematic unit of the pericope (cf., infra, section 2.1.8. of the present chapter). 59 The term hggv is present in Lev 4,2.22.27; 5,15.18; 22,14; Num 15,24.25(x2).26.27.28.29; 35,11.15; Josh 20,3.9; Qoh 5,5; 10,5. 60 In this connection, B. Levine assumes a rather peculiar position: first, he maintains that the two roots are “virtually synonymous despite difference in usage”, but, as his explanation continues, he seems to refer with certainty the origin of the substantive hggv to the geminate root ggv, defining rather clearly its sphere of use. Cf. LEVINE, Numbers 1–20, 395. 61 Cf. E. KAUTZSCH, Gesenius’ Hebrew Grammar. Second American Edition (Boston, MA 1898) § 77; K.J. GRIMM, “The Form hnrt, Prov. i.20, viii.3”, Journal of Biblical Literature 21 (1902) 196. 62 According to A.E. HILL, “ggv”,The New International Dictionary of the Old Testament Theology and Exegesis (ed. W.A. VANGEMEREN), IV (Grand Rapids, MI 1997) 42– 43, there would be two spheres of use: the first would concern a more generic use, rooted in the daily life of the people, and, in this context, the word would be used to indicate

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turns out to be a domination of the typically legal and cultic semantic connotation which the lexeme assumes – even if not uniquely – when it is used together with two verbal roots: ajx and ~va.63 J. Milgrom devotes to this second example of the use of the word a detailed semantic and philological analysis on the results of which it will be appropriate to reflect with care on account of the important consequences which they could have for our study.64 As we indicated previously, the starting point is that the field of use of the term hggv is very circumscribed and concerns for the most part legal texts of a cultic matrix. In particular, the word occurs 5 times in Lev 4–565 and a good 7 times in Num 15,22–31,66 in the context of two collections of laws linked by the fact of containing the regulation of offerings to be made in reparation for sins or faults deriving from two specific situations: negligence or ignorance. Now, as is well known, the Old Testament legislation lays down that negligence involves falling into sin, as indicated by the distinguishing presence of the verb ajx; ignorance, on the other hand, places the one responsible in the condition of guilt which is expressed by the root ~va. In analysing Lev 4–5, Milgrom notes that the term hggv is employed there in an ambivalent, not to say promiscuous, way:67 in fact, the text makes use of

                                                                                                                errors which derive from distractions; the second use, on the other hand, would reflect a technical use of the word and would be typical of cultic language. The analysis of the term which follows will show that it is preferable to opt for a single general use of the word. 63 For a detailed analysis of the semantics relating to the concepts of sin and guilt in the book of Leviticus cf. C. NIHAN, From Priestly Torah to Pentateuch. A Study in the Composition of the Book of Leviticus (Forschungen zum Alten Testament/II 25; Tübingen 2007) 237–256; J.W. WATTS, Leviticus 1–10 (Historical Commentary on the Old Testament; Leuven – Paris – Walpole, MA 2013) 303–316. 64 Cf. J. MILGROM, “The Cultic hggv and Its Influence in Psalms and Job”, Jewish Quarterly Review – N.S. 58 (1967) 115–125 = Studies in Cultic Theology and Terminology (Studies in Judaism in Late Antiquity 36; Leiden 1983) 122–132. 65 To be precise, in Lev 4,2.22.27; 5,15.18. For comment on the text, cf. M. NOTH, Leviticus. A Commentary (The Old Testament Library; London 1965) 37–42; J.E. HARTLEY, Leviticus (Word Biblical Commentary 4; Dallas, TX 1992) 43–72; J. MILGROM, Leviticus 1–16 (Anchor Bible 3A; New York 1991) 226–378; P.J. BUDD, Leviticus (New Century Bible Commentary; Grand Rapids, MI 1996) 76–98; NIHAN, From Priestly Torah, 164– 166; WATTS, Leviticus 1–10, 296–366. 66 In vv. 24.25[x2].26.27.28.29. For the demarcation of the section and comment on the individual verses, cf. GRAY, Numbers, 178–182; NOTH, Numbers, 116–117; DE VAULX, Nombres, 185–187; BUDD, Numbers, 172–174; DAVIES, Numbers, 155–158; LEVINE, Numbers 21–36, 395–398. 67 Significantly, Milgrom describes the ambiguous use of the term as the “desperation of commentators through the ages” (MILGROM, “Cultic hggv”, 115). In fact, in this connection, R. de Vaux expresses himself thus: “Les derniers rédacteurs qui ont établi ces règles embrouillées ne savaient pas clairement ce qu’étaient le sacrifice tjta et le sacrifice ~va. [The final redactors who established these muddled rules did not have a clear idea what

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it both in the context of sins committed consciously68 and in that concerning faults committed unconsciously.69 In the first case, hggv serves to denote an action performed inadvertently by a person who is however aware of the wrongness of his own action, since “full consciousness of the wrong is a sine qua non for the tjta”:70 so far, no great difficulties. The second case – that which expresses guilt, described by recourse to ~va – ought by definition to imply the absence of consciousness in the one who performs the act; otherwise we find ourselves faced with sin and not with guilt. Precisely the use of hggv in this second sense, which we find in Lev 5,17–19, raises the question about its specific meaning and the way in which it is used. For greater clarity, we quote the pericope in question: The LORD said to Moses: 15 When a person commits sacrilege by inadvertently (hggvb hajxw) misusing any of the LORD’s sacred objects, the wrongdoer shall bring to the LORD as reparation an unblemished ram from the flock, at the established value in silver shekels according to the sanctuary shekel, as a reparation offering. 16 The wrongdoer shall also restore what has been misused of the sacred objects, adding a fifth of its value, and give this to the priest. Thus the priest shall make atonement for the person with the ram of the reparation offering, so that the individual may be forgiven. 17 If someone does wrong and violates one of the LORD’s prohibitions without realizing it ([dy alw), that person is guilty (~vaw) and shall bear the penalty. 18 The individual shall bring to the priest an unblemished ram of the flock, at the established value, for a reparation offering. The priest shall then make atonement on the offerer’s behalf for the error inadvertently committed (ggv rva wtggv) and unknowingly ([dy al awhw) so that the individual may be forgiven. 19 It is a reparation offering. The individual must make reparation to the LORD.

As can be observed, hggv is employed in Lev 5,15 in association with the root ajx in order to describe the inadvertence of a sinful act. The text, in fact, presents a wrong act the accidental nature of which does not nullify the full consciousness of the evil of the act itself on the part of the one who commits it because without consciousness there would not be any sin. Quite different is the situation of the case represented in the immediately following verses (vv. 17–19): in this case, holding to the letter of the law, the material author of the wrong does not have any consciousness of the wrong nature of his own action.71 In addition to being inadvertent, therefore, the

                                                                                                                were the tjta sacrifice and the ~va sacrifice]” (R. DE VAUX, Les Institutions de l’Ancien Testament, II [Paris 1960] 299). 68 Cf. Lev 4,13–14 (here, hgv is employed, but we have already seen that it can be attributed to the same root of ggv); 4,22–23; 4,27–28; 5,14–16. 69 Cf. Lev 5,17–19. 70 MILGROM, “Cultic hggv”, 116. 71 The biblical text is rather explicit in denying the consciousness: “If someone does wrong and violates one of the LORD's prohibitions without realizing it ([dy alw)…” (v.

2. Exegetical analysis of Num 35,9–34

65

action described is also unconscious. It is precisely here that the use of the term hggv is intriguing to the point of seeming incongruous: if, in the other circumstances when it is used – including that immediately preceding in vv. 15–16 – the word expresses the accidental nature of an act however conscious, how on earth is it being employed here in the context of an action where the author is declared to be unconscious of what he is doing? To respond to this question, it is necessary to bear in mind that there is in this text an element of difference which cannot be passed over and which turns out to be decisive for the purposes of interpretation:72 while hggv occurs in absolute form (that is, without specifications of any kind) in the cases which describe the inadvertence of one who falls into sin while being conscious of his own action, in Lev 5,18, it is followed by the expression [dy al awhw. The significance of this expression has the force of changing the general target of the formula, attesting it on the side of unconsciousness.73 It is precisely this kind of need for the text to make use of a further element (i.e., the expression [dy al awhw) which connotes the use of the word hggv to the extent of changing its customary sense that allows us to infer that our term is to be understood as inadvertence: but it is an inadvertence which does not take from the author the fact of his consciousness of what he is doing.74

                                                                                                                17a). A little later, the text increases the level, describing the wrong as “inadvertently committed (ggv rva wtggv) and unknowing ([dy al awhw)” (v. 18). 72 A slight difference which makes all the difference, to paraphrase Milgrom (MILGROM, “Cultic hggv”, 115). 73 In support of this statement, Milgrom produces an argument of a literary type, noting that “in P [dy connotes consciousness rather than understanding” and brings in other biblical examples in support of the statement. Cf. MILGROM, “Cultic hggv”, 116 n. 7. 74 This statement undoubtedly represents the most controversial point of J. Milgrom’s argument. Although recognising the general value of his study on the use and significance of hggv, there are various authors who distance themselves from this conclusion, more or less directly. The greatest objection consists in holding that the term implies absence of intention and premeditation and so has nothing to do with the consciousness of the one who commits the act. Thus in general (saving the nuances of each): R. RENDTORFF, Studien zur Geschichte des Opfers im Alten Israel (Wissenschaftliche Monographien zum Alten Testament und Neuen Testament 24; Neukirchen-Vluyn 1967) 202–203; R. KNIERIM, “ggv”, Theologisches Handwörterbuch zum Alten Testament (ed. E. JENNI – C. WESTERMANN) II, (München – Zürich 1976) 869–872; B. JANKOWSKI, Sühne als Heilsgeschehen. Studien zur Sühnetheologie der Priesterschrift und zur Wurzel KPR im Alten Orient und im Alten Israel (Wissenschaftliche Monographien zum Alten und Neuen Testament 55; Neukirchen-Vluyn 1982) 254–255. However, as is clear from the summary of his position, Milgrom’s theory is based on more than one element and overall present a certain solidity. I hold that these arguments cannot be ignored only on the basis of the general perception that one has of the term hggv and of the semantic system that stands behind it.

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Thus, whether it is employed to indicate the negligence of one who knows the law and breaks it accidentally, whether it refers to the inadvertence connected with ignorance of the law which is being broken, more precisely, to one who acts deliberately but does not know that he is doing anything wrong, the term hggv supposes consciousness of the act on the part of the one committing it.75 Analysing the range of meaning of the root in the Hebrew Bible, Milgrom concludes that hgv implies a movement, an interior passage from one condition to another, as described in the expressions “to move in error, out of control”: something which helps us to understand better how a deed performed inadvertently can proceed from full consciousness. This is as if to say that there is full consciousness of the action, but not of the consequences which the same action provokes.76 In addition to the observations already noted, the author produces in support of his thesis two further arguments of a comparative type: one ad intra and one ad extra. The first argument can be described as ad intra because it compares the use of the root [dy and the term hggv in the general context with which we are concerned (Lev 4–5). Leaving aside the ‘anomalous’ case of Lev 5,18 which has been explained previously, the root [dy does not appear in the pericope to designate the consciousness or not of the action which is being performed except in Lev 5,1–4: significantly, in these verses, the term hggv is absent and, given that the laws which are being announced there are not limited to cases of unconscious inadvertence,77 use is made of the expression [dy awhw to express conscious inadvertence. That corroborates the initial hypothesis: namely, that hggv already contains within itself the idea of the consciousness of the act which is to be performed inadvertently.

                                                                                                                75

Inasmuch as he is normally numbered among the critics of Milgrom’s position (cf. NIHAN, From Priestly Torah, 164–165 n. 252), T. Seidl – commenting precisely on the case of Lev 5,14–19 – admits that “hggv gewinnt durch diese Parallelsetzung die erweiterte Konnotation „fahrlässiges, verantwortungsloses Versehen“; es bleibt zwar Irrtumssünde, schließt aber ein gewisse Vorsätzlichkeit nicht aus” (T. SEIDL, “hgv/ggv”, Theologisches Wörterbuch zum Alten Testament [ed. G.J. BOTTERWECK – H. RINGGREN – H.-J. FABRY], VII [Stuttgart – Berlin – Köln 1993] 1062: my italics). 76 Very illuminating is the example of a person who drinks wine, and does so consciously, but is not conscious of what will be the consequences of his act if he gets drunk (for example, injury or even death to himself or some other person; harm to property etc.). The act of drinking is considered, then, as simultaneously conscious and inadvertent. 77 Cf. the case expounded in Lev 5,1 which presupposes the intention (and so, a fortiori, the consciousness) of the act: “If a person, either having seen or come to know something, does wrong by refusing as a witness under oath to give information, that individual shall bear the penalty”.

2. Exegetical analysis of Num 35,9–34

67

The second argument, on the other hand, is based on the comparison with the use of the term hggv in the Tannaitic literature which, although being culturally close to the Hebrew Bible, is nonetheless something quite different: that is why we can describe it as ad extra argument. Citing the ancient rabbinic jurisprudence, J. Milgrom states that our term occurs in the context of discussions concerning offences that are both civil and ritual: on analysing the use, one discovers that hggv is invariably employed with presumption of consciousness of the act on the part of the one committing it.78 *

* *

The reader will not find it difficult to understand the reason for and the importance of this long digression on the term hggv: it is clear, indeed, that it is not irrelevant to seek to clarify as far as possible the field of use of the term in our particular context (Num 35,9–34), given that it is one thing to say that the legislative text intends to refer to a homicide that is the result of an unconscious distraction, another thing that it concerns an act committed inadvertently but with the consciousness of what is being done. On the basis of what has emerged during the discussion, we have advanced the hypothesis that recourse to the term hggv in Num 35,11.15 is aimed at describing the homicides with which the law is going to deal – or at least one part of them as we shall have the opportunity of seeing – as acts which are the result of inadvertence but fully conscious. In this particular case, as will emerge better from the analysis of the following verses, the killer is unaware of the ultimate consequences which his act is provoking – namely, the death of the person whom he is striking – but is moved by full consciousness at the moment in which he initiates the action the consequences of which will turn out to be fatal. In this same connection, it does not seem out of place to observe that, as happens in the case of jlqm, which we have described as a technical term, hggv too does not appear in the two Pentateuchal texts that are parallel to our pericope: in fact, to describe an unintentional homicide, Ex 21,13 has recourse to a periphrasis,79 while Deut 19,4 employs the expression t[d ylbb.80 From

                                                                                                                78

Cf. MILGROM, “The Cultic hggv”, 119. The citations of the rabbinic sources are to be found in n. 23. 79 The text says: “But if he did not lie in wait for him, but God let him fall into his hand…”. 80 Literally, this expression means “without knowledge, unintentionally”, as we have had the opportunity to see previously when speaking of the root [dy. Significantly, the term hggv returns in Josh 20,3.9: in particular, v. 3 presents a redundancy deriving from the addition of two formulae which have an identical meaning, the result being a kind of conflated formula (t[d ylbb hggvb). This will prove to be useful again when considering the

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that it seems legitimate to infer that it is precisely the juridical case which is different: Num 35,11.15 is not referring to a simple unintentional homicide (as do Ex 21,12–13 and Deut 19,4–6), but to a homicide which is the unintended consequence of a conscious act. Finally, I hold it to be quite other than accidental that the only two occurrences of the term hggv in the pericope have been strategically placed in what we have previously identified as the first thematic unit of the pericope (vv. 10b–15). Seeing that it also contains the specification of the other key terms which serve to describe with precision the case to which the law is referring (jlqm and xcr), this unit presents itself as acting as the general frame of understanding of the mens standing behind the legislation of Num 35,9–34. *

* *

The specific nature of the elements that have emerged from the exegetical analysis of v. 11 has already led us to grasp how superficial it would be to interpret the legislation about the “cities of refuge” in Numbers as a mere repetition of what has been expressed previously in Exodus and Deuteronomy. However, v. 12, which opens by restating the significance and the purpose of the cities of refuge, immediately presents a further important element the analysis of which will contribute to causing the peculiarity of the tradition which we are analysing to emerge more clearly: this is the syntagm ~dh lag, to which we shall devote the next stage of this analysis, not before tackling a problem of textual criticism which raises some questions and reflections. The case in question attracts the attention of the commentators because the MT of Num 35,12 records simply the substantive lag, furnished with preposition (!m) but without further specifications. Comparison with the principal versions81 urges the acceptance without much hesitation of the information in the notes of the Biblia Hebraica Stuttgartensia which interprets the present text as the result of a scribal error82 and proposes to insert immediately after the term lagm the specification ~dh. Among other things, this enables us to make the reading conform to the occurrence of the syntagma in the rest of the pericope where it always appears in complete form.83

                                                                                                                relationships of dependence between the various literary traditions relating to the cities of refuge. 81 The Greek records ἀπὸ ἀγχιστεύοντος τὸ α ἷµα (with accusative of relation) and the Vulgata “cognatus occisi”. For the Greek text, cf. J.W. WEVERS (ed.), Numeri (Septuaginta. Vetus Testamentum Græcum auctoritate Societatis Litterarum Gottingensis editum 3.1; Göttingen 1982) ad loc. 82 In the specific case, we would have an error of omission which could fall within the category of homoioteleuton given that l and ~ are not so dissimilar. 83 Thus in Num 35,19.24.25.27(x2).

2. Exegetical analysis of Num 35,9–34

69

Moreover, with this correction, a rather anomalous situation is resolved: according to the vocalisation of the MT, the substantive lag appears without determination with the result that, just as it stands, it would have to be translated literally without article and read “from an avenger”. That would be something unique84 in the entirety of occurrences of the term and would hardly be comprehensible in the immediate context. With the addition of ~dh the problem has virtually been resolved because the substantive assumes the proper determination of the term in the absolute state which is extended to the entire construct chain.85 2.1.4. The meaning of the syntagma ~dh lag Since it represents the primary social network of every form of civilisation, it should come as no surprise that the family is also at the foundation of Israelite society. Saving all the distinctions which are relevant to the subject in the present debate, when one thinks of the family today, one generally has in mind a mononuclear entity consisting of a rather limited group of people bound together by direct ties of blood. Now, the reality and the composition of the Israelite family goes well beyond that which is commonly understood: both from a quantitative point of view, namely as the number of members; and from a qualitative point of view, that is, as a perception of the relationship among the members. Above all in the period prior to the monarchy, marked by the absence of a centralised authority charged with the defence of the common good, it is easy to understand the need for a close and substantial network of support and mutual aid to guarantee the protection of the individual groups which made up the large clan. This is the reason why the concept of the Israelite family,

                                                                                                                84

In Ruth 4,14, the absence of determination is understood in relation to the participial (therefore verbal) function of the term: “One who exercises the right of redemption”. 85 However, there are not a few scholars who hold this solution to be arbitrary, maintaining that it is necessary to distinguish two different meanings for lag and ~dh lag: among these, A. Phillips (who for a large part reproduces and deepens the argument of M. SULZBERGER, The Ancient Hebrew Law of Homicide [Philadelphia 1915] 53–54, 58: this theory had already been criticised by Lagrange, cited in JACKSON, Essays, 59 n. 192) holds that the absence of the substantive ~dh in Num 35,12 of the MT is intentional, serving to distinguish the closest relation (expressed solely by the substantive lag) from the “public official” charged by the community with acting as avenger, expressed by the syntagm ~dh lag (cf. PHILLIPS, Ancient, 102–103). As P. Barmash justly observes, the theory is affected by the fact that Phillips denies the existence of the blood feud: but the very idea of legislating for the institution of cities of refuge which would offer escape for the killer testifies clearly in favour of the existence of the blood vengeance exercised by the family of the victim (cf. BARMASH, Homicide, 50–51).

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by contrast with what happens today, was very extended and tended to include as many individuals as possible.86 Within this basic social element constituted by the family, a role of certain importance is fulfilled by the laeGO. From the morphological point of view, the word is a substantive of participial origin which can be described as typical of the Hebrew language given that there are no correspondences in the cognates except in a proper name in Aramaic.87 From the etymological point of view, on the other hand, it can be made to go back to the root lag and serves to indicate the nearest relation to the family to whom belongs the duty to ‘redeem’, ‘defend’, “protect the interests” – in the widest sense of the word88 – of the family group in particularly critical predicaments. Judging by the distribution of its occurrences in the biblical text, the substantive lag can well be considered a technical term of a legal nature: this is suggested by the fact that over half of its citations are found in contexts that are markedly legislative.89 The other principal use of the term can be described as of a theological nature, seeing that it employs the term to describe the act of YHWH who redeems, rescues and protects his people, Israel.90 As we have anticipated, in the pericope which we are analysing, the substantive does not appear in absolute form but in the syntagmatic form ~dh lag, generally translated as “avenger of blood’. Without doubt, this role represents the

                                                                                                               

86 On the topic, cf. R. DE VAUX, Les Institutions de l’Ancien Testament, I (Paris 1960) 40–41; M. GREENBERG, “Avenger of Blood”, The Interpreter’s Dictionary of the Bible. An Illustrated Encyclopedia (ed. G.A. BUTTRICK), I (Nashville, TN 1962) 321. Very significantly, P. Barmash expresses herself thus in this connection: “Family ties in biblical Israel were not so much a matter of genealogical relations as of responsibilities” (BARMASH, Homicide, 27). 87 Cf. H. RINGGREN, “lag”, Theologisches Wörterbuch zum Alten Testament (ed. G.J. BOTTERWECK – H. RINGGREN – H.-J. FABRY), I (Stuttgart – Berlin – Köln 1973) 885. 88 The go’el, in fact does not protect or rescue only people but also the property of the family clan as is demonstrated by the rights of the ge’ullah codified in Lev 25,25–34 (Cf. RINGGREN, “lag”, 886). In that, the root is clearly distinguished from another root which per se is considered synonymous, that is, hdp, which, however, is invariably employed for people or for living beings, not for objects (cf. R.C. DENTAN, “Redeem, Redeemer, Redemption”, The Interpreter’s Dictionary of the Bible. An Illustrated Encyclopedia [ed. G.A. BUTTRICK], IV [Nashville, TN 1962] 21). 89 Cf. Lev 25,25(x2).26.30.33.48.49(x3).54; 27,13(x2).15.19(x2).20(x2).27.28.31(x2).33.; Num 35,12.19.24.25.27(x2); Deut 19,6.12. In consideration of the numerical amount of these occurrences, R.L. Hubbard is encouraged to the point of holding that the use of the root in a religious (or, in any case, a wide) sense derives, in fact, from this main legal use: cf. R.L. HUBBARD, “lag”, The New International Dictionary of the Old Testament Theology and Exegesis (ed. W.A. VANGEMEREN), I (Grand Rapids, MI 1997) 790. 90 On the theological use of the term, cf. R.L. HUBBARD, “The Go’el in Ancient Israel: Theological Reflections on an Israelite Institution”, Bulletin for Biblical Research 1 (1991) 3–19.

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71

most fearsome among the different activities of the lag, in that it consisted of avenging the death of the relative by the killing of the one responsible for it. Given the delicacy of the question, this hateful task fell first and foremost to the son of the victim: in the event of there being no sons, it fell to the nearest relation to eliminate the killer or – in the latter’s absence – one of his family. This blood vengeance was aimed at re-establishing that equilibrium which the homicide had compromised, according to the general spirit of the lex talionis: “Life for life, eye for eye, tooth for tooth, hand for hand, foot for foot” (Deut 19,21).91 However, we are not talking about an institution exclusive to the world of ancient Israel: to remain in the Semitic sphere, the Arabs too practised blood vengeance (which is called târ), holding that the blood of one of the family was the blood of all the family.92 In Mesopotamia, in fact, the situation was completely different: the family of the victim did not have the right to take vengeance on their own but had to hand it over to the established authorities in order to gain justice. At most they could have the right of accusing the murderer formally, something, however, which could be done by anyone, even someone who was a stranger in relation to the family involved.93 In his comment on Num 35,12, G.B. Gray states that the function expressed by the syntagm ~dh lag should be understood in relation to the other functions of the lag indicated previously. The latter, therefore, should not be understood as an avenger, but rather as a redeemer, restorer, and balancer. Gray claims that the function of blood vengeance, generally interpreted as a peculiarity of the ~dh lag, actually corresponds to “one instance of survivals” of the most primitive stage of Israelite society where, for example, there was no distinction between intentional and unintentional homicides and death was repaid with death. With the gradual and systematic formation of society, this function would have been progressively transformed:94 precisely the law contained in

                                                                                                                91

Cf. RINGGREN, “lag”, 886. In the same spirit, Lev 24,19–20: “If one inflicts an injury on his neighbour, it will be done to him as he has done to the other: 20 fracture for fracture, eye for eye, tooth for tooth; the same injury will be done to him as he has done to the other”. 92 “Les Arabes disent: “notre sang a été versé” [The Arabs say: “our blood has been shed”]” (DE VAUX, Institutions, I, 27). Similarly, also, DE VAULX, Nombres, 399. 93 For a detailed description of the role of the victim’s family in Mesopotamian legislation relating to cases of homicide, supported by a careful comparison with the biblical legislation, cf. BARMASH, Homicide, 27–50. 94 P. Barmash shows herself somewhat sceptical with regard to this position, maintaining that it is based on an anthropological model – that of the progressive development of primitive societies – which has today been superseded. It should be observed, however, that the alternative proposed by her is in any case a theoretical model which cannot easily be said to be free from the preconceptions typical of its kind. For the discussion and bibliographical references, cf. BARMASH, Homicide, 23–25 n. 7.

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Num 35,9–34 would contain the major novelties with regard to the institution of the ~dh lag and to the ways in which his role might be carried out.95 As in so many other circumstances, Gray’s observations stand out for their sharp intelligence and have the merit of opening the way to new interpretations of the text. In his overall assessment of the role of the avenger of blood, he gives a snapshot of the specific contribution which the legislation about the “cities of refuge’ contained in Num 35,9–34 offers to the biblical law in general, describing it in terms of a “very distinct advance”.96 However, he is not moved to go further: on the contrary, he seems to take a small step back, claiming that it is a law of transition since it is not able to confer the complete jurisdiction over the criminal material to a representative of the entire community to the extent in which it leaves to the ~dh lag the right to make good the offence undergone by the family of one who has been killed intentionally. 2.1.5. The interpretation of Num 35,12 and its consequences for the hermeneutics of the whole pericope In my opinion, a careful reading of our legislative text which is based on the gains and considerations made previously on the significance of the term hggv and on the use of the root xcr can produce further and unexpected developments along the lines marked out by Gray. We read, in fact, in Num 35,12: ‫שׁפָּ ֽט‬ ְ ‫ְו ָהי֙וּ לָכֶ ֧ם ֶה ע ִ ָ֛ר ים ְל ִמ ְק ָל֖ט ִמגּ ֵ ֹ֑א ל וְֹל֤ א י ָמוּ ֙ת הָר ֹ ֵ֔צ ַח עַד־ ָע ְמ ֛דוֹ ִלפְנֵ ֥י ָה ע ָ ֵ֖ד ה ַל ִמּ‬ And the cities will be for you a refuge from the avenger [of blood], so that the killer may not die before he appears in front of the assembly for judgement.

Keeping to the letter of the text, the places indicated by the previous verse (v. 11) as “cities of refuge’ (jlqm yr[) for the inadvertent homicide (hggvb vpn hkm xcr) are represented here as the place of protection (the text has recourse once more to the substantive jlqm strengthening it with a preposition) in which the killer– in this case described simply as xcr – can repair in order to avoid the action of the [~dh] lag and preserve his life until the moment when he appears before the hd[ for judgement. Separating the essential elements of vv. 11–12 and comparing them by means of a synoptic scheme, we obtain the following situation:97

                                                                                                                95

Cf. GRAY, Numbers, 470–471. GRAY, Numbers, 471. 97 We use the following system to indicate similarities and differences: the elements common to both verses are marked in bold; those peculiar to v. 11 in italics; those peculiar to v. 12 are underlined. 96

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Num 35,11

Num 35,12

j l q m yr [ ~ yr [ ~ k l ~ t yr q h w  

j l q m l ~ yr [ h ~ k l wyh w  

hmv swnw twmy alw ~dh lagm x c r [h ]  

x c r h  

hggvb vpn hkm jpvml hd[h ynpl wdm[ d[ The elements which emerge from a comparison of the two verses are of extreme importance. The first general consideration is that, despite the impression that one can gain from a cursory reading of the text, v. 12 cannot be held to be a mere repetition of v. 11: in fact, although, we find there some of the thematic elements already present in the previous verse, some additions which seem to be only nuances confer on the content of v. 12 a novel character which is weighty with hermeneutical consequences.98 We shall explain them immediately. The first peculiarity of v. 12 consists in the specification of the very raison d’être for the “cities of refuge’: if the preceding verse had indicated them as a haven for the inadvertent homicide, here the text speaks clearly about from what – or, better, from whom – the killer is to find escape, namely, the ~dh lag. Thus, the specific aim is that of hindering the one who is setting in motion the blood vengeance by causing the death (as expressed clearly by the consecutive clause twmy alw) of the one whom v. 12 indicates simply as xcrh. Even a glance at the table above shows that the substantive xcr is the only element that is common to the two verses which not only does not find in v. 12 an expansion of what has been said in v. 11 but turns out to be docked of the fundamental specification to which we have devoted so much attention: hggvb, with which the act of killing is described as inadvertent in vv. 11.15.99 How do we interpret this circumstance?

                                                                                                                98

Num 35,12 will also constitute an object of reflection from the diachronic point of view relative to the compositional process of the pericope as we shall see in detail in section 2.1.8. of the present chapter. 99 In fact, missing too is the syntagm vpn hkm which, however, as indicated previously in the section on the analysis of xcr, has no influence on the general meaning of the expression. Cf., supra, 2.1.1.

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Certainly, in order to explain the phenomenon it does not seem enough to invoke the presence in v. 12 of the determination h as an element of direct reference to what has been expressed previously:100 this is an argument which is ultimately rendered weak by the fact that, according to the major versions,101 the substantive xcr in v. 11, which appears indeterminate in the MT, can be emended with the addition of the article (xcrh) without prejudice to the understanding of the text. It does not appear reasonable to invoke for this particular case a need to summarise the text, something that would be rather singular in view of the rest of the pericope: how on earth does a text which generally does not avoid repetitions to the point of redundancy102 suddenly become so terse as to turn out to be imprecise103 in referring to one of the key elements of the discourse? In my opinion, the terminology chosen in Num 35,12 not only is not due to a lack of precision on the part of the redactor of this legal text but is responding to a precise option which discloses to the reader one of the elements of greatest novelty in the legislation contained in Num 35,9–34. After having said, using the expression hggvb, that the “cities of refuge’ as a haven for the inadvertent killer – and not simply for the unwitting one, as we have shown in the paragraph devoted to the analysis of the term hggvb,104 the text now extends the relevant case by the application of the jlqm yr[ to any person whose homicidal activity can be described as violence which derives from the desire of one who wishes to take justice into his own hands.105 It is clear that such an extension of the case of persons who can take advantage of the “cities of refuge’ is not aimed at redimensioning the assessment of the serious nature of homicide: rather, it is the exact opposite, as is

                                                                                                                100

In general, the determinative or definite article is used before a substantive already known to the speaker/writer. 101 The Samaritan Pentateuch registers the substantive with the definite article (cf. KENNICOTT, Vetus Testamentum, I, 357; VON GALL, Pentateuch der Samaritaner, I, ad loc.; PHILLIPS, Samaritan Version, 198–199). The same is true of the Greek text which reads τὸν φονευτήν (cf. WEVERS, Numeri, ad loc.). 102 The list of recourses in this pericope to the repetition of the same element would be long: as a significant example of the phenomenon, I limit myself to recalling the fact that the substantive jlqm occurs there a good 10 times and the root xcr an actual 20 times. Then, there are not a few repetitions of entire syntagms, such as xcrh tmwy twm awh xcr which return identically in three verses of what follows (vv. 16.17.18). 103 We recall what was said before about the need which B. Levine feels to emend what he claims is a double textual inexactitude. In fact, in connection with v. 11, he says: “Imprecisely, the killer is here (and in the following verse – italics are mine) termed xcr, usually understood as ‘murderer’, even though premeditation has not been established […] Hence, the translation: ‘[accused] murderer’” (LEVINE, Numbers 21–36, 554). 104 Cf., supra, section 2.1.3. of the present chapter. 105 This, in fact, is the meaning of the root xcr which emerged from our analysis (cf. supra, section 2.1.2. of the present chapter).

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proved by the following element of specification peculiar to v. 12106 which confirms that the “cities of refuge’ serve to make sure that the killer – understood in the sense just specified – can find a haven from the avenger of blood and not die. To sum up: according to the arrangements of Num 35,12, the aim of the legislation with which we are concerned is that of removing the xcr from the revenge of the ~dh lag. The true novelty which results from the deeper study of the interpretation of this verse consists in the fact that we are not dealing with a partial removal, limited to the case of unwitting homicide – as maintained by the majority of commentators on the text – but a real attempt to supersede the “private justice” incarnated in the figure of the avenger of blood.107 To return to Gray, then, the legislation of Num 35,9–34 is not to be understood as simply a “transitional law”: rather, we are in the presence of a precise advance in the biblical law, aimed at superseding an ancestral custom108 – that of the blood vengeance of the ~dh lag – in order to bring together the regulation of all the cases of homicide (not only the unintentional ones) into the hands of the constituted authorities. This same direction applies to the final element peculiar to v. 12 which specifies further the function of the “cities of refuge”: according to the letter of the text, these are not simply aimed at offering at providing a haven for the xcr, but in protecting his life from the hands of the avenger of blood until the time when the killer appears before the hd[ to submit to its judgement. Given the importance of the theme, it is appropriate to focus on the significance which this specific context – here in Num 35,12 and in Num 35,24–25 – attributes to the term hd[.

                                                                                                                106

That is, according to the synoptic scheme suggested, twmy alw [~dh] lagm. The fact that, In practice, the custom of the family survived in Israel despite the present legislation cannot, in my view, constitute a valid argument to refute the foundation of the present argument. The writer comes from a land – Sardinia – that is very beautiful but sadly famous for the feuds which stain some of its villages with blood, opposing families in a fratricidal war which, at times, lasts for decades. No reasonable person attributes the persistence of this ancient custom to the absence of legislation to punish this type of crime: similarly, I am claiming that the enduring of the family vendetta undertaken by the ~dh lag cannot constitute a valid argument for inferring that this operation was endorsed by the Jewish law and that there was no law intended to put an end to blood vengeance on a family basis. 108 It is to be borne in mind that, despite its intrinsic cruelty, this custom had the merit of attenuating the risk of a feud by limiting the revenge to the author of the homicide alone (cf. DE VAULX, Nombres, 399). 107

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2.1.6. The meaning of hd"[e The substantive hd[ is generally attributed to the root d[y “to determine, decide, appoint”, which in the niphal form assumes the meaning of “to gather, assemble together”.109 This is the direction also pressed by the meaning of the cognate terms in Ugaritic ‘dt and m‘d, which are used to describe the assemblies of the gods.110 Despite the fact that some authors hold different opinions,111 hd[ is considered in practice as a synonym of the rather more widespread term, lhq which – although sometimes having a more specific connotation – similarly expresses the idea of the assembly of a determinate group of people. The use of the term hd[ in the Hebrew Bible appears rather typical in the priestly sphere: of the 149 occurrences of the word, a good 129 are found in the block Genesis–Numbers whereas the term is totally absent from the book of Deuteronomy which invariably uses the synonym lhq. Despite the fact that the characterisation as ‘priestly’ could tend towards a late dating for the origin of the term, the institution described with hd[ and comprising the “general assembly” of all the adult males is acknowledged to be of notable antiquity. To judge from the decisive role which, according to the biblical account, it performs in certain circumstances,112 it is held that its establishment precedes that of the Israelite monarchy chronologically. The basis of this assertion relies on the basis of the comparison of the hd[ with a similar Mesopotamian institution called the puhrum. In studying this collective form of authority, T. Jacobsen ends up describing it in terms of “primitive democracy”: the establishment of an institution of such power can be understood only in a period prior to the rise of the monarchy, because a

                                                                                                                109

On the meaning, origin and root, cf. M. GÖRG, “d[y”, Theologisches Wörterbuch zum Alten Testament (ed. G.J. BOTTERWECK – H. RINGGREN – H.-J. FABRY), III (Stuttgart – Berlin – Köln 1986) 697–706. 110 Cf. D. LEVY – J. MILGROM, “hd"[e”, Theologisches Wörterbuch zum Alten Testament (ed. G.J. BOTTERWECK – H. RINGGREN – H.-J. FABRY), V (Stuttgart – Berlin – Köln 1986) 1079–1080; E. CARPENTER, “hd"[e”, The New International Dictionary of the Old Testament Theology and Exegesis (ed. W.A. VANGEMEREN), II (Grand Rapids, MI 1997) 326 who offers a complete list of the use of the term in the languages of the ANE. 111 Farrer, for example, claims that hd[ indicates those who have assembled for a specific reason whereas lhq serves to identify the whole of Israel, assembled by YHWH as his own people. Cf. M.R.W. FARRER, “Congregation, Solemn Assembly”, The New Bible Dictionary (ed. J.D. DOUGLAS) (Grand Rapids, MI 1962) 248. 112 For example, in 1 Kgs 12,20, it is precisely the hd[ which crowns King Jeroboam; in Num 14,4, the hd[ is shown to have the authority (or at least to claim it) to choose another leader in place of Moses.

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centralised authority like that of the king would hardly have permitted the development of organs of power-sharing like that represented by the hd[.113 The antiquity of the institution is also confirmed from a literary point of view by the studies of A. Hurvitz and J. Milgrom. The former author – operating in a chronological scheme clearly alternative to that of classical documentary hypothesis – interprets the phenomenon of the absence of hd[ from the “Exilic and post-Exilic” literature as an indication of the antiquity of the term which would have disappeared from Biblical Hebrew after the priestly writing.114 The latter, going further into the argument of Hurvitz (and his predecessors) by means of careful comparison with the use of the term lhq, asserts that the two terms can be considered synonymous only in the latest use which is made of them in the “post-Exilic” texts; whereas in the more ancient traditions – and similarly in P which, according to the hypothesis, takes up again the archaic use of the term – only hd[ had the technical value of “people’s assembly”.115 Beyond these questions relating to the dating of the texts, always a very delicate matter and one that tends to remain sub judice, a comparison of hd[ and lhq leads to the emergence of two interesting facts. The first concerns the fact that only hd[ is employed in syntagmatic form with other terms to designate “the responsible elements of the nation, the full citizens who have rights and duties and look after the affairs of the nation”.116 There is a substantial list of officials who are described with recourse to our term: hd[h yayvn (chiefs, leaders of the community); hd[h ynqz (elders of the community); hd[h yawrq (elect, called of the community); hd[h ywdqp (enrolled of the community); hd[h twba yvar (heads of the paternal dynasties of the community).

                                                                                                                113

Cf. T. JACOBSEN, “Primitive Democracy in Ancient Mesopotamia”, Journal of Near Eastern Studies 2 (1943) 159–172. The same reasoning is applied to hd[, postulating origins for it which go back to the time in the desert: cf. LEVY – MILGROM, “hd"[e”, 1082. 114 Cf. A. HURVITZ, “Linguistic Observations on the Priestly Term ‘Edah and the Language of P”, Immanuel 12 (1972) 21–23; ID., A Linguistic Study of the Relationship between the Priestly Source and the Book of Ezekiel. A New Approach to an Old Problem (Cahiers de la Revue Biblique 20; Paris 1982) 66. 115 Cf. J. MILGROM, “Priestly Terminology and the Political and Social Structure of Pre-Monarchic Israel”, Jewish Quarterly Review 69 (1978) 65–81. Milgrom’s chief argument is the absence of hd[ from the books of Ezra and Nehemiah which are agreed to be late. In these books, hd[ is never used to speak of ‘assembly’: in fact, in Ezra 10,12, the term lhq occurs, and, in Neh 8,12, the syntagm ~[h-lk. 116 M.H. POPE, “Congregation, Assembly”, The Interpreter’s Dictionary of the Bible. An Illustrated Encyclopedia (ed. G.A. BUTTRICK), I (Nashville, TN 1962) 669.

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The other datum concerns the spheres of use of each of the terms: while lhq is employed quite frequently to describe assemblies of a cultic nature and never in the judicial or legislative context,117 hd[ indicates a “political body invested with legislative and judicial functions”.118 This allows us to understand the hd[ spoken of in Num 35,12119 as a representative organ of the entire people of Israel with a legal and judicial function. In addition to the value of the term itself, the concept is expressed clearly by jpvml, which indicates the aim of the appearance of the killer before the hd[ as judgement. Verse 13 has the function of linking the cities of asylum dealt with in our pericope with the levitical cities spoken of in the previous pericope (Num 35,1–8):120 in fact the main verb of v. 13a (wntt) is connected with wntnw with which the command to chooses cities to be reserved for the Levites after the entrance into the land of Cannan is introduced in Num 35,2a. Furthermore, it takes up literally the verb wntt which appears twice in Num 35,6a (in a function that is clearly proleptic with regard to our pericope) to indicate, first, the designation of the Levitical cities and, then – among these – of the cities of asylum. In lacking the indirect complement which in Num 35,2a.6a indicates the levites as the recipients of the gift implied by the root !tn,121 the verb in v. 13 should be translated by intransitive verbs such as “give oneself”122 or ‘choose’.123

                                                                                                               

117 Milgrom is pressed to state that “as a matter of fact, it [lhq] makes no decisions at all”: in a note, then, he explains that the term changes in the Exilic and post-Exilic periods (MILGROM, “Priestly Terminology”, 69). 118 MILGROM, “Priestly Terminology”, 69. So too LEVY – MILGROM, “hd"[e”, 1083; DE VAULX, Nombres, 401. 119 In the same way the term should be understood in Num 35,24–25, as we shall have the opportunity to see in what follows. 120 On the levitical cities, cf. DE VAUX, Institutions, II, 224–226; B. MAZAR, “The Cities of Levites and Priests”, Congress Volume. Oxfors 1959 (ed. G.W. ANDERSON et al.) (Vetus Testamentum – Supplements 7; Leiden 1960) 193–205; M. HARAN, “Studies in the Account of the Levitical Cities. I: Preliminary Considerations”, Journal of Biblical Literature 80 (1961) 45–54; G. HENTON DAVIES, “Levitical Cities”, The Interpreter’s Dictionary of the Bible. An Illustrated Encyclopedia (ed. G.A. BUTTRICK), III (Nashville, TN 1962) 116–117; LEVINE, Numbers 21–36, 569–571. 121 This is how it reads in Num 35,2a: ~wyll wntnw. This, instead, in Num 35,6a: ~wyll wntt. 122 The reflexive nuance evidently does not derive from the form of the verb (which is qal and not niphal, as might be expected from such a rendering of the verb) but is in a way required by the translation. 123 With this in mind, the translation of the whole of v. 13 could run thus: “Of the cities which you give yourselves (or which you shall choose), six will be for you to be considered as cities of refuge”.

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Verse 14 specifies – albeit in summary fashion – the place in which the “cities of refuge” are to be chosen. By contrast with what happens in other similar traditions,124 we are not furnished with a precise list of the cities nor is there any detail about their location: the text simply indicates that three have to be chosen from among the cities of Transjordan125 and the remaining three in the land of Canaan. The absence of any determination of the cities to be chosen as places of refuge is variously interpreted by scholars. G.B. Gray confines himself to observing that !dryl rb[m “beyond the Jordan” is anachronistic in that it assumes the settlement of the people in Canaan: something still to happen if one holds to the letter of the biblical account given that the people still find themselves outside the promised land.126 E.W. Davies, together with others,127 does not seem to regard the absence of the list of the cities in the Numbers pericope as very significant: indeed, in his commentary, he argues for the location of the various cities in the territory, taking it for granted that Josh 20,7–8 – in which these cities are listed – functions as a supplement to the legislation of Num 35,9–34.128 Adding that to other factors of a linguistic character, R. de Vaux interprets the absence of determination of the cities as signalling the fact that this legislation was never put into practice.129 By contrast with the others, this observation – although based on criteria that are no always shared by all130 – has the value of not avoiding the lacuna presented by the text and of trying to offer an explanation for it.

                                                                                                                124

Cf. Deut 4,43 and, especially, Josh 20,7–8 which record the exact list. The traditional descriptions “Transjordan” and “Cisjordan” are based on the city of Jerusalem as the point of reference: consequently, Transjordan is the region east of the river while Cisjordan is the territory to the west of the Jordan. 126 Cf. GRAY, Numbers, 472. In reality, this phenomenon can well be understood as a further element which certifies the late nature of the tradition. 127 Thus, for example, BUDD, Numbers, 383. 128 Cf. DAVIES, Numbers, 363–364. 129 “La date tardive [de Nm 35 n.d.r.] et l’absence de précisions sur les villes montrent qu’il n’a jamais été appliqué. [The late date {of Num 35, ed.} and the absence of details about the cities shows that they were never established.]” (DE VAUX, Institutions, I, 249). On the hypothesis of the theoretical nature of the institution of the “cities of refuge” which would never have been constructed in practice, cf. SCHMIDT, “Leviten- und Asylstädte”, 103 and the bibliographical references on n. 1 of the same page. 130 Particularly problematic is the periodisation of the four texts relating to the cities of refuge (in the order: Exodus 21; Deuteronomy 19; Joshua 20; Numbers 35), which clearly goes back to the exegetical paradigms of the time. 125

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Similar to de Vaux, my view is that the silence of the text about the names of the cities not only should not be filled but rather listened to: in the face of so much emphasis in the text in describing the purpose of the cities to be chosen, namely, ‘refuge’,131 why is there no list of them? Such an omission cannot be accidental: on the basis of what has previously been maintained in relation to the general interpretation of the law about the cities of refuge, my opinion is that Num 35,13–15 does not offer a concrete list of the cities because the text has a purpose different from that commonly attributed to it on the basis of which the pericope would be none other than a repetition of the other traditions relating to the cities of refuge. Developing our basic hypothesis, I maintain that the legislation contained in Num 35,9–34 is not interested in establishing precise physical sites 132 because it is aimed fundamentally at something else, namely: ensuring that whoever is stained with the crime of homicide – in a case that is more or less inadvertent, as we have shown previously133 – can remain alive until he appears for judgement before the hd[. The true ‘place’ of refuge which the text is intending to put at the centre of the legislation is the hrwt, the real measure of justice which is applied by one who has the recognised authority to do so.134 In additionally confirming the concept of the purpose of the “cities of refuge”, v. 15 adds an important element suitable for clarifying further at whom the legislation contained in Num 35,9–34 is being aimed. Placing the terms significantly in the emphatic position, at the beginning of the verse, the text says that the following three categories will be able to benefit from the discipline of the jlqm yr[: the larfy-ynb; the rg; and the bvwt. While there is no great difficulty identifying the first category in the members of the people of Israel, it will be appropriate to offer some words on the other two.

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This is an element which is repeated in practically every verse of what we have identified as the first thematic unit of the pericope (vv.10b–15): “Designate cities which shall be for you cities of refuge” (v. 11); “these cities will be for you a refuge” (v. 12); “of the cities which you will give yourselves, six will be for you cities of refuge” (v. 13); “they will be cities of refuge” (v. 14); “these six cities will be a refuge” (v. 15). 132 We recall here what was said previously regarding the meaning of the term jlqm and the use made of it in our pericope (cf., supra, section 2.1.1. of the present chapter). 133 See the general interpretation of the law which flows from the exegesis of Num 35,12 (cf., supra, section 2.1.3. of the present chapter).   134 This is the sense which I have intended to give to the title of this book: “The Torah as a Place of Refuge”. Biblical Criminal Law and the Book of Numbers.

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2.1.7. The meaning of rGE and bv'wOT The substantive rGE describes the foreigner who is resident in Israel.135 From an etymological point of view, the term can be attributed to the root rwg, generally employed to indicate the condition of a stranger who has been established for a certain time in a particular country and enjoys a special juridical provision.136 Precisely through this terminological clarification, the word is distinguished from the two more general terms, yrkn or rz, which are normally employed to describe foreigners in the broader sense of the term.137 With regard to the use which the Hebrew Bible makes of it, one of the first things which strikes us is the fact that the term almost always appears in the singular: the rare occasions on which the plural ~yrg appears is to recall the collective condition of the people of Israel during their slavery in Egypt.138 The use of the term in the singular shows that the rg is being considered as an individual, and the law treats him as such.139 Usually, the causes of the inclusion of a rg in a foreign country are of a political (for example, wars, expulsions) or socio-economic (famines, epidemics) nature: to borrow a modern term from international law, we could say that the condition of the rg has much in common with that of refugees today.140 Biblical legislation shows itself quite thoughtful in its dealings with the rg and, if a comparison is made of the texts in which he is spoken of, one can say that the reasons for such care can be attributed to two kinds of considerations: first of all, motivations of a social character; secondly (but certainly not in importance), motivations of a theological character.

                                                                                                               

135 R. de Vaux presents the situation of the rGE as intermediate between that of the Israelites and that of the foreigners of passage who are able to count on typically Oriental customs of hospitality but do not enjoy any legal protection (cf. DE V AUX, Institutions, I, 116). 136 Very interesting (and, in certain respects, sadly contemporary) is the observation of Kellermann on the etymology of rwg and on its semantic relations with other Semitic languages: one of the meanings of the root is “to be hostile” (cf. the Akkadian gerû). It is possible, therefore, that, at least in antiquity, to be foreign and to be hostile were two different observations referred to the same person. Cf. D. KELLERMANN, “rwg”, Theologisches Wörterbuch zum Alten Testament (ed. G.J. BOTTERWECK – H. RINGGREN – H.-J. FABRY), I (Stuttgart – Berlin – Köln 1973) 980. 137 Cf. R. MARTIN-ACHARD, “rwg”, Theologisches Handwörterbuch zum Alten Testament (ed. E. JENNI – C. WESTERMANN) I, (München – Zürich 1971) 409–412. 138 Thus in Ex 22,20; 23,9; Lev 19,34; Deut 10,19. 139 Cf. R. RENDTORFF, “The Ger in the Priestly Laws of the Pentateuch”, Ethnicity and the Bible (ed. M.G. BRETT) (Biblical Interpretation Series 19; Leiden – New York, NY 1996) 78. 140 Cf. KELLERMANN, “rwg”, 984.

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From the social point of view, it is to be considered that, through the fact of living among people with whom he does not share ties of blood – also in a broad sense, of belonging to the same people – the rg does not enjoy the same rights as an Israelite, first and foremost that of owning his own property on which to settle and to exercise control. As a result, he is in the position of having to depend for his needs on a native who has the opportunity of receiving him (and eventually his family) under his own patronage. It is clear that such a reception is repaid with a form of service and dependence on the protector, something that implies the fact that the rg is often a poor person: that explains why in the biblical legislation the foreigner is listed among the personae miserae who need special attention, namely, orphans and widows. 141 In addition to these personal rights, the resident foreigner also lacks some collective rights, since, for example, he does not have a family clan to which to refer in case of need. This lack is only partly made up for by his inclusion in the family of the protector, since it is evident that a servant is not in the same state as a relation and, consequently, the protection which he can receive from his patron is quite relative and precarious.142 To this whole series of reasons of a social character are joined those of a theological nature. In this connection, one of the principal motives inspiring laws for the protection of the rg relies on the Exodus experience: in the land of Egypt, in fact, Israel had direct experience of how hard and difficult life can become for a foreigner resident in another land, since Pharaoh had no mercy in his dealings with the foreign people who were living within his borders and whom he perceived as dangerous.143 From this state of oppression God liberated Israel: by means of the miracles performed against Pharaoh, YHWH raised himself up as defender and guarantor of the life and prosperity of his sons and – by extension – of all the gērîm who turn out to be oppressed in some way by the inhabitants of the nation among whom they are living.144

                                                                                                                141

Cf. G. BARBIERO, L’asino del nemico. Rinuncia alla vendetta e amore del nemico nella legislazione dell’Antico Testamento (Es 23,4–5; Dt 22,1–4; Lv 19,17–18) (Analecta Biblica 128; Roma 1991) 66–68 and relative biblical references. 142 Cf. I. DURHAM, Exodus (Word Biblical Commentary 3; Waco, TX 1987) 330; CHILDS, Exodus, 478. 143 According to the account of the Exodus, the children of Israel, gērîm in Egypt, did not enjoy any guarantee on the part of the lord of that land: on the contrary, he changed himself into their oppressor, reducing them into slavery and rendering their life very bitter (cf. Ex 1,14). 144 Cf. F. COCCO, “Memoria e solidarietà (Es 22,20–25)”, Parola Spirito e Vita 56 (2007) 23–34.

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To the memory of the Exodus is added another factor very important from the theological point of view: the priestly texts describe the patriarchs, Abraham, Isaac and Jacob with recourse to the root rwg.145 This phenomenon is interpreted convincingly by D. Kellermann in the sense of a theological relativisation of the concept of “possessing the land of Canaan”:146 in the final analysis, in fact, the application of the description of rg to the patriarchs involves a kind of equivalence of the condition of the Jews of the post-Exilic community and that of the “resident strangers”. After the destruction of Jerusalem in 587 B.C., Israel no longer existed as a politically autonomous and sovereign entity, being reduced to the rank of a province of, first, the neo-Babylonian and then the Achaemenid empires: the survivors of Israel, therefore, found themselves dwelling, in fact, in what had been their land, no longer as owners but as ~yrg, like their ancestors. That would help us to understand better the particular attention which P – but we could say the entire Pentateuch – devotes to the rg, seeking to protect his condition by means of a series of laws intended to look after him.147 Among these laws falls also the arrangement of Num 35,15 which extends to the rg the same guarantees as those reserved to the Israelites who find themselves involved in the juridical cases indicated by the text. The same extension of guarantee concerns a word whose use is less widespread than rg but is employed equally to describe someone who resides as a foreigner in a land that is not his own, that is a bvwt.148 In view of the fact that the meaning of these two terms is not very different and the use made of them by the Hebrew Bible almost interchangeable, they are considered as synonyms149 to the point that some authors interpret the expression bvwtw rg as a hendiadys typical of the priestly literature, to be understood as “resident foreigner”.150

                                                                                                                145

Abraham in Gen 17,8; 23,4; Isaac in Gen 35,27; 37,1; Jacob in Gen 28,4; 36,7 (like his brother, Esau). 146 “The acquisition of the land of Canaan becomes theologically relativised” (KELLERMANN, “rwg”, 986). 147 For a complete list of the rights which the biblical legislation recognises for the rg, cf. KELLERMANN, “rwg”, 987–988. 148 The total occurrences of the term amount to 11, a good seven of which are in the same passage (Lev 25). 149 Thus KELLERMANN, “rwg”, 990; MARTIN-ACHARD, “rwg”, 410. 150 Cf. J.E. RAMÍREZ KIDD, Alterity and Identity in Israel. The rg in the Old Testament (Beihefte zur Zeitschrift für die alttestamentliche Wissenschaft 283; Berlin – New York, NY 1999) 99.

84

Chapter III: “Repetition or Reformulation?”. The Curious Case of Num 35:9–34

Added to the consideration developed previously in relation to the absence of specification of the list of the cities of refuge,151 the extension of the criminal legislation of Num 35,9–34 to the “resident foreigner” constitutes a further element attesting the late nature of our pericope. Both these elements, in fact, would bear witness to an historical moment in which the possession of the land is no longer the focus and in which the jus soli is being replaced gradually by the jus personae.152 2.1.8. The conclusion of Num 35,15   The closing part of v. 15 takes up again in inclusive form some of the key words of v. 11 on which we dwelt at the opening of the exegetical analysis of this chapter: I am referring specifically to the syntagm hggvb vpn hkm, which closes Num 35,15. Bearing in mind what we have said in the comment on v. 12, describing the function of this verse as contributing novelty – inasmuch as it extends the application of the arrangements contained in the law to all cases of homicide and not only to the unintentional ones 153 – the repetition in Num 35,15 of the term hggvb acting as an inclusion could persuade us to claim two things that are equally problematic: the first, that we find ourselves faced with a kind of “step back” by the legislator, who, with such a conclusion, would end up by establishing that the law of Num 35,9–34 does not concern voluntary homicide; the second, closely linked to the first, that the interpretation which we proposed for v. 12 – holding it to be indicative of a piece of law which also contemplates the cases of voluntary homicide – cannot be sustained easily without a clear contradiction of what is laid down in v. 15. In fact, a careful examination of the formulation of the repetition of v. 11 at the close of Num 35,15 presses us to further and deeper reflections. We shall set down the two verses in question in a synoptic scheme to show better the phenomenon of which we are speaking: Nm 35,11b ‫שׁגָגָ ֽה׃‬ ְ ‫ֵה־נ פֶשׁ ִבּ‬ ֙ ָ ‫וְנָ ֥ס‬ ֖ ֶ ‫שׁ ָמּ ֙ה ר ֹ ֵ֔צ ַח ַמכּ‬

Nm 35,15b ‫שׁגָגָ ֽה׃‬ ְ ‫ֵה־נ פֶשׁ ִבּ‬ ֖ ֶ ‫ָל ֣נוּס ָ֔שׁ ָמּה כָּל־ ַמכּ‬

As can be appreciated from this table, the second part of Num 35,15 is shorter than Num 35,11b, and the missing part, even if quantitatively small, cannot be held to be qualitatively unimportant. In fact, the only word which has not been repeated in the formula of inclusion is precisely that xcr the

                                                                                                                151 152 153

Cf., supra, the comment on v. 14. Thus DE VAULX, Nombres, 400. Cf., supra, section 2.1.5 of the present chapter.

2. Exegetical analysis of Num 35,9–34

85

presence of which in Num 35,11 (where the juridical treatment of cases of inadvertent homicide is being introduced) is the factor which creates such a great problem for those who interpret the legislation of Num 35,9–34 as a law concerning unintentional homicide like the Pentateuchal parallels. In accordance with this interpretation, as we have seen, they find themselves compelled to hold at least strange if not exactly out of place the recourse of the text to a word such as xcr which generally connotes a murderer rather than a manslayer.154 In view of the difference between the two texts, which is small only in appearance, it appears to me that the difficulty which is being created between the interpretation of the law of Num 35,9–34 provided until now – which we have understood as a law which regulates all cases of homicide and not just unintentional ones – and the reiterated use of the term hggvb in Num 35,15 – which, although speaking of inadvertence and not of lack of intention, nonetheless implies a different situation from one that is directly malicious – can be explained by what has been stated previously in the section on the study of the semantics of xcr and of its specific use in our pericope. There, we hypothesised that this term could have been employed by the redactors as a suture in order to harmonise legislative elements that were originally distinct, such as the legislation concerning the malicious case and that relating to the unintentional case.155 Moreover, that our pericope could have been the subject of modifications of a redactional type is not a novelty, since M. Noth already expressed himself about the nature of vv. 16–29 thus: “Whether they always belonged to vv. 9–15 or have only been added later cannot definitely be decided”.156 This observation by Noth is very important since it introduces the possibility – if not, in fact, the plausibility– of a different redactional origin between what we have described as the first thematic unit of the pericope (vv. 9–15) and the rest of the law: and it does that precisely by departing from the promiscuous use of the term xcr, which is used indifferently by the text of Num 35,9–34 to indicate sometimes murderers and sometimes manslayers.157

                                                                                                                154

Cf. what was said in this connection (with the relevant references to the authors) in section 2.1.2 of this chapter. 155 We have indicated above the fact that the term xcr appears right across the pericope, even in semantic contexts apparently unsuitable to its use such as that of Num 35,11–12. 156 NOTH, Numbers, 255. Of the same opinion, A. ROFÉ, “Joshua 20: Historico-Literary Criticism Illustrated”, Empirical Models for Biblical Criticism (ed. J.H. TIGAY) (Philadeplhia, PA 1985) 144; SCHMIDT, “Leviten- und Asylstädte”, 104 n. 5. 157 In fact, Noth continues thus: “In favour of the latter possibility [i.e. that vv. 16–29 do not belong to vv. 9–15, author.] there is the fact that the word roseah (‘killer’) which, in vv. 11–12, designates the ‘killer’ (without evil intent), now occasionally means specifically the conscious ‘murderer’, exactly as if it were technical term (cf. especially vv. 16– 21)” (NOTH, Numbers, 255).

86

Chapter III: “Repetition or Reformulation?”. The Curious Case of Num 35:9–34

Taking up again Noth’s argument and corroborating it with the gains which we have made in the course of this study, we hold that it is possible to reconstruct the steps of the redactional history of the legislation of Num 35,9–29,158 dividing it into two stages, both marked by the fundamental concept of reformulation. We shall seek to look at it in this way. As we have mentioned several times in recording the traditional opinion on this question, the starting point of the biblical legislation on the “cities of refuge” is generally identified in the law of Deut 19,1–13.159 From the reading of this text, it appears clearly that the aim of the Deuteronomic legislator is that of protecting from the vengeance of the avenger of blood the life of a person who is in the position of having committed a homicide without having any intention of it. Thus, the only criminal case regulated by this legislation is that of unwitting homicide. Far from confining itself to repeating what was laid down by Deut 19,1– 13, the legislation of Num 35,9–34 is presented – according to our basic hypothesis – as a reformulation of that law, aimed at broadening the range of the effect of the law on the “cities of refuge”. Starting out from the analysis of the text, my theory is that this objective was pursued in two different redactional stages: the first step would be that represented by the legislation on inadvertent homicide; the second, that characterised by the addition of the law regarding the case of murder, with the final result – as we have already partly seen and as will emerge better from the complete exegetical analysis – of having a law which regulates virtually every case of homicide, given that it contemplates cases of unwitting homicide, inadvertent homicide, and murder. On the basis of this conceptual reconstruction, we can hold that the distinctive mark of the primitive redactional stage of the legislation on the cities of refuge in the book of Numbers – what L. Schmidt describes as the Grundbestand160 – is represented by the term hggvb, which appears, not by chance, at the beginning and at the end of the section, holding vv. 11–15 together by in-

                                                                                                               

158 I am deliberately leaving vv. 30–34 out of account because, as mentioned in the section on the demarcation of the passage, they are generally agreed to be the result of a later redactional expansion (cf. NOTH, Numbers, 256; BAENTSCH, Numeri, 695; LEVINE, Numbers 21–36, 548; SCHMIDT, “Leviten- und Asylstädte”, 104) which does not alter the weight-bearing structure of the legal provision based on the concept of the double reformulation. In fact, as we shall be able to see even better in the course of the exegetical analysis, rather than adding further elements to the legislation, vv. 30–34 turn out to be their kind of procedural and theological corollary inasmuch as they complete the legislation expressed in Num 35,9–29 without modifying its basic nature. 159 In this section, I am confining myself to anticipating the basic content of what I shall be taking up again more deeply in the next chapter in which we shall be analysing in detail the text in question (Deut 19,1–13), as also the other traditions parallel to Num 35,9–34. 160 Cf. SCHMIDT, “Leviten- und Asylstädte”, passim.

2. Exegetical analysis of Num 35,9–34

87

clusion. Precisely because of the specific theme of the Grundbestand of this law, which does not take into account cases of voluntary homicide, my hypothesis is that, at this first redactional stage, verses 11b and 15b were identical in their formulation, and v. 11, therefore, was without the term xcr.161 Likewise, v. 12 – the peculiarities and significance of which we have already been able to dwell on162 – turns out to correspond very little to the case of inadvertent homicide: principally because it repeats the substantive xcr with all its difficulties; but also because it inserts into the discourse the reference to the judgement of the hd[ which has little to do with cases of unwitting or inadvertent homicide, seeing that they constitute cases that are not malicious. Instead, the very same judgement of the hd[ represents one of the key elements in the treatment of voluntary homicide, introduced and specified in detail in what is assumed to be the second redactional form of the text (vv. 16–29). To summarise again: these could be the two great phases of formation of the text of Num 35,9–29 according to what has emerged up to now from our enquiry: the first phase (Num 35,9–11*.13–15) reformulates the law on the “cities of refuge” by inserting the inadvertent case which is to be added to that of the unwitting killer for which Deut 19,1–13 had already legislated; the second phase (Num 35,12.16–29) further reformulates the previous legislation by adding the systematic treatment of case of the malicious killer. For the sake of clarity, here is a graphical presentation of the compositional process which we have just summarised:   Nm 35,9–11*.13–15 Nm 35,12.16–29 (First reformulation – Grundbestand) 10

(Second reformulation – addenda)

9

‫ֵאמ ֹר׃ ַדּ ֵבּ ֙ר ֶאל־‬ ֽ ‫ְהו ה ֶאל־מ ֶ ֹ֥שׁ ה לּ‬ ֖ ָ ‫ַוי ְ ַדבֵּ ֥ר י‬ ‫שׂ ָר ֵ֔א ל וְאָ ַמ ְר ָ ֖תּ ֲאל ֶ ֵ֑ה ם ִכּ֥י ַא ֶ ֛תּ ם עֹב ִ ְ֥ר ים‬ ְ ִ ‫בּ ְֵנ֣י י‬ ‫ֶאת־ ַהיּ ְַר ֵ ֖דּ ן אַ ְ֥רצָה כְּנָ ֽעַן׃‬ 11 ‫ית ם ָל ֶכ ֙ם ע ִָ֔ר ים ע ֵ ָ֥ר י ִמ ְק ָל֖ט ִתּ ְה ֶי ֣ינָה‬ ֤ ֶ ‫ְו ִה ְק ִר‬ ‫שׁגָגָ ֽה׃‬ ְ ‫ֵה־נ פֶשׁ ִבּ‬ ֙ ָ ‫ל ֶ ָ֑כ ם וְנָ ֥ס‬ ֖ ֶ ‫שׁ ָמּ ֙ה ]***[ ַמכּ‬ ‫שׁ שׁ־ע ֵ ָ֥ר י ִמ ְק ָל֖ט‬ ֵ ‫ ְו ֶהע ִ ָ֖ר ים ֲא ֶ ֣שׁ ר ִתּ ֵ ֑תּ נוּ‬13 ‫ִתּ ְה ֶי ֥ינ ָה לָכֶ ֽם׃‬ ‫שֹׁל֣ שׁ ֶהע ִָ֗ר ים ִתּ ְתּנ ֙וּ ֵמ ֵ ֣ע בֶר ַליּ ְַר ֵ֔דּ ן ְו ֵא ֙ת‬ ְ ‫ אֵ ֣ ת׀‬14 ‫שֹׁל֣ שׁ הֶ ֽע ִָ֔ר ים ִתּ ְתּנ֖ וּ בּ ֶ ְ֣א ֶרץ כּ ָ ְ֑נ עַן ע ֵ ָ֥ר י ִמ ְק ָל֖ט‬ ְ ‫ִתּ ְה ֶי ֽינ ָה׃‬

‫ר ֹ ֵ֔צ ַח‬ ‫ ְו ָהי֙וּ לָכֶ ֧ם ֶהע ִ ָ֛ר ים ְל ִמ ְק ָל֖ט ִמגּ ֵ ֹ֑א ל וְֹל֤ א י ָמוּ ֙ת‬12 ‫שׁפָּ ֽט׃‬ ְ ‫הָר ֹ ֵ֔צ ַח עַד־ ָע ְמ ֛דוֹ ִלפְנֵ ֥י ָהע ָ ֵ֖ד ה ַל ִמּ‬

                                                                                                                161

We can include within the same direction the annotations of the Biblia Hebraica Stuttgartensia which propose to remove the term xcr from v. 11, clearly considering it as an addition. 162 I refer to what has been said in this connection in section 2.1.5. of the present chapter.

‫‪Chapter III: “Repetition or Reformulation?”. The Curious Case of Num 35:9–34‬‬

‫‪ְ 16‬ו ִאם־ ִבּ ְכ ִל ֙י ב ְַר ֶז ֧ל׀ הִכָּ ֛הוּ ַויּ ָ֖מ ֹת ר ֵ ֹ֣צ ַחֽ ֑הוּא‬ ‫יוּמ ת הָר ֹצֵ ֽחַ׃‬ ‫֥מוֹת ַ ֖‬ ‫שׁר־י ָ ֙מוּת בָּ ֥הּ הִכָּ ֛הוּ ַויּ ָ֖מ ֹת‬ ‫‪ְ 17‬ו ִ֡א ם בּ ֶ ְ֣א בֶן י ָ ֩ד ֲא ֶ‬ ‫יוּמ ת הָר ֹצֵ ֽחַ׃‬ ‫ר ֵ ֹ֣צ ַחֽ ֑הוּא ֥מוֹת ַ ֖‬ ‫שׁר־י ָ ֙מוּת בּ֥ וֹ הִכָּ ֛הוּ ַויּ ָ֖מ ֹת‬ ‫‪֡ 18‬אוֹ ִבּ ְכ ִל֣י עֵ ֽץ־י ָ ֩ד ֲא ֶ‬ ‫יוּמ ת הָר ֹצֵ ֽחַ׃‬ ‫ר ֵ ֹ֣צ ַחֽ ֑הוּא ֥מוֹת ַ ֖‬ ‫‪ 19‬גּ ֵ ֹ֣א ל ַה ָ֔דּ ם ה֥ וּא י ִ ָ֖מ ית ֶאת־הָר ֵ ֹ֑צ ַח ְבּ ִפגְעוֹ־ב֖ וֹ‬ ‫יתֽנּוּ׃‬ ‫ה֥ וּא י ְ ִמ ֶ‬ ‫שׁ ִל֥יְך עָלָ ֛יו‬ ‫שׂנ ָ ְ֖א ה י ֶ ְה ָדּ ֶ ֑פ נּוּ ֽאוֹ־ ִה ְ‬ ‫‪ְ 20‬ו ִאם־ ְבּ ִ‬ ‫ִבּ ְצ ִד ָיּ֖ה ַויּ ָֽמ ֹת׃‬ ‫‪֣ 21‬אוֹ ְב ֵאי ֞ ָב ה ה ִָכּ֤הוּ ְבי ָד ֙וֹ ַויּ ָ֔מ ֹת ֽמוֹת־יוּמַ ֥ת‬ ‫ַה ַמּ ֶ ֖כּ ה ר ֵ ֹ֣צ ַחֽ ֑הוּא גּ ֹאֵ ֣ ל ַה ָ֗דּ ם י ִָמ֛ית ֶאת־הָר ֵ ֹ֖צ ַח‬ ‫ְבּ ִפגְעוֹ־בֽוֹ׃‬ ‫שׁ ִל֥יְך‬ ‫יב ה ֲה ָד ֑פוֹ אוֹ־ ִה ְ‬ ‫‪ְ 22‬ו ִאם־בְּפֶ ֥ ַת ע בְֹּלא־ ֵא ָ ֖‬ ‫עָלָ ֛יו כָּל־ ְכּ ִל֖י בְֹּל֥ א ְצ ִד ָיּ ֽה׃‬ ‫שׁר־י ָ֥מוּת ָבּ ֙הּ בְֹּל֣ א ְר ֔אוֹת‬ ‫‪֣ 23‬אוֹ ְבכָל־ ֶ֜א בֶן ֲא ֶ‬ ‫ַויּ ַפֵּ ֥ל ע ָָל֖יו ַויּ ָ֑מ ֹת וְהוּ ֙א ֹלא־אוֹ ֵי ֣ב ֔לוֹ וְֹל֥ א ְמב ֵ ַ֖קּ שׁ‬ ‫ָר ָע ֽתוֹ׃‬ ‫וּב ין גּ ֵ ֹ֣א ל ה ָ ַ֑דּ ם עַ ֥ ל‬ ‫‪ 24‬ו ָ ֽ‬ ‫ְשׁ פְט ֙וּ הָ ֽ ֵע ָ֔ד ה ֚ ֵבּ ין ַה ַמּ ֶ֔כּ ה ֵ ֖‬ ‫שׁפּ ִ ָ֖ט ים הָאֵ ֽלֶּה׃‬ ‫ַה ִמּ ְ‬ ‫‪ְ 25‬ו ִה ִצּ֙ילוּ ָה ֵע ָ֜ד ה ֶאת־הָר ֹ ֵ֗צ ַח ִמיּ ַ ֮ד גּ ֹאֵ ֣ ל ַה ָדּ ֒ם‬ ‫ר־נ֣ס‬ ‫שׁ ָ‬ ‫ל־ע יר ִמ ְקל ָ֖טוֹ ֲא ֶ‬ ‫ֵשׁ יבוּ א ֹת ֙וֹ הָ ֽ ֵע ָ֔ד ה ֶא ִ ֥‬ ‫ְוה ִ ֤‬ ‫שׁ ר־‬ ‫שׁב ָ֗בּ הּ עַד־מוֹ ֙ת הַכּ ֵ ֹ֣ה ן ַהגּ ָ֔ד ֹל ֲא ֶ‬ ‫ָ ֑שׁ ָמּה ְו ָי ֣ ַ‬ ‫ְשׁ ֶמן ה ַֽקּ ֹ ֶד שׁ׃‬ ‫ָמ ַ ֥שׁ ח א ֹ֖תוֹ בּ ֶ ֥‬ ‫‪ְ 26‬ו ִאם־י ָ֥צ ֹא י ֵ ֵ֖צ א הָר ֵ ֹ֑צ ַח ֶאת־גְּבוּל ֙ ִ ֣ע יר ִמ ְקל ָ֔טוֹ‬ ‫שׁ ָמּה׃‬ ‫ֲא ֶ ֥שׁ ר י ָנ֖ וּס ָ ֽ‬ ‫‪ 27‬וּ ָמ ָ ֤צ א א ֹת ֙וֹ גּ ֵ ֹ֣א ל ַה ָ֔דּ ם ִמ ֕חוּץ ִלגְב֖ וּל ִ ֣ע יר‬ ‫ת־ה ר ֹ ֵ֔צ ַח אֵ ֥ין ל֖ וֹ‬ ‫ִמ ְקל ָ֑טוֹ ו ְָר ֞ ַצ ח גּ ֵ ֹ֤א ל ַה ָדּ ֙ם ֶא ָ ֣‬ ‫דָּ ֽם׃‬ ‫ַד־מוֹת הַכּ ֵ ֹ֣ה ן ַהגּ ָ֑ד ֹל‬ ‫‪ִ 28‬כּ֣י ב ִ ְ֤ע יר ִמ ְקלָט ֙וֹ י ֵ ֵ֔שׁ ב ע ֖‬ ‫ל־א ֶרץ‬ ‫וְאַח ֵ ֲ֥ר י מוֹ ֙ת הַכּ ֵ ֹ֣ה ן ַהגּ ָ֔ד ֹל י ָשׁוּ ֙ב הָר ֹ ֵ֔צ ַח ֶא ֶ ֖‬ ‫ֲא ֻחזּ ָ ֽתוֹ׃‬ ‫יכ ם‬ ‫‪ְ 29‬ו ָהי֙וּ אֵ ֧ לֶּה לָכֶ ֛ם ְלחֻקַּ ֥ת ִמ ְ‬ ‫שׁ ָ ֖פּ ט לְד ֹר ֹ ֵת ֶ ֑‬ ‫שׁב ֹ ֵתיכֶ ֽם׃‬ ‫בּ ְ֖כ ֹל מוֹ ְ‬

‫שׁ ֙ב בְּתוֹ ָ֔כ ם‬ ‫שׂ ָר ֵ֗א ל ְו ַל ֵגּ֤ר ְולַתּוֹ ָ‬ ‫‪ִ 15‬לב ְֵנ֣י י ִ ְ‬ ‫שׁ שׁ־ ֶהע ִ ָ֥ר ים ה ֵ ָ֖א לֶּה ְל ִמ ְק ָל֑ט ָל ֣נוּס‬ ‫ִתּ ְה ֶי ֛ינ ָה ֵ‬ ‫שׁגָגָ ֽה׃‬ ‫ֵה־נ פֶשׁ ִבּ ְ‬ ‫ָ֔שׁ ָמּה כָּל־ ַמכּ ֶ ֖‬

‫‪88‬‬

2. Exegetical analysis of Num 35,9–34

89

At the conclusion of the exegetical analysis of vv. 9–15, it should have become quite clear how fundamental the specific contribution of this first thematic unit is for the understanding of the entire pericope. This part of the text contains, condensed in a few verses, all the principal elements on which our basic hypothesis is founded, understanding Num 35,9–34 as a reformulation of the biblical criminal legislation relating to homicide and not simply as a mere repetition of the laws to be followed in the case of unintentional homicide which have already been expressed in a more or less similar manner in other biblical texts. I maintain that it is wholly other than accidental that all the innovative elements – that is, those which justify the hypothesis of a reformulation – are found at the beginning of the section: embracing all the key terms of the question and offering a new reading of them, the first thematic unit presents itself as an hermeneutical frame which has the function of indicating the semantic register through which all the information contained in the rest of the pericope is to be understood and located. 2.2. Determination of the different examples of homicide and their regulation (vv. 16–29) If we try to summarise its content in a single line, we could say that the second thematic unit of our pericope records the identification of the different cases of homicide and provides concrete indications for their regulation. There are some literary indications that can generally be reduced to differences in expository style which, when added to the thematic content of the individual verses, encourage the traditional opinion tending towards an internal arrangement of the unit into two parts: the first part would be formed by vv. 16–21 which reflect a series of circumstances which can be described in law as malicious murder; the second would consist of vv. 22–28 which expound some cases of manslaughter. Verse 29 is generally interpreted as a sort of conclusion to the discourse. As argued previously in the section on the demarcation and structure of the periscope,163 if, on the one hand, the said stylistic differences attest the existence of different stages in the compositional history of the text, on the other hand, they do not seem to be such as to put in question the substantial unity of the section (Num 35,16–29). From the stylistic point of view, in fact, one observes common literary elements which return throughout the two parts,164 proof of the fact that in any case there was a final work of redaction aimed at the unification of the text.

                                                                                                                163

Cf., supra, section 1.3. of the present chapter. An example would be the syntagms …b ~aw in vv. 16.17.20.22.26; and …b wa in v. 18.21.23. 164

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Moreover, as will emerge clearly in the course of the exegetical analysis, we have grounds for holding that what is considered as the second part of the section (vv. 22–29) can be arranged thematically into two parts. With all that in mind, in our analysis – though restating as valid the idea of a substantial state of unity for the entire section (that is, Num 35,16–29) for the reasons laid out above – we shall arrange the discourse into three stages, solely for convenience of exposition, considering in order: the particularly wilful case (vv. 16–21); manslaughter (vv. 22–23); and the procedure for the regulation of cases of homicide envisaged by this law (vv. 24–28). 2.2.1. The particularly wilful case, or malicious murder (vv. 16–21) Verse 16 opens a series of statements which describe the case of malicious murder. As Gray correctly observes, the determining factor which characterises all the cases recorded is the intentionality of the criminal act which is made clear by the legislative text with two basic indicators: the first indicator is the instrument used to inflict the violence (vv. 16–18); the second is the nature of the sentiments which animate the author of the criminal act prior to the carrying out of the act itself (vv. 20–21).165 As can easily be observed, these indicators turn out to be quite equally distributed within this section: significantly, at the centre, we find v. 19, whose content and importance we shall have the opportunity to return to in what follows.166 Arranged as it is by the typology of the material of which they are made, the list of instruments in vv. 16–18 which, if used with violence, can cause death is presented as all-inclusive. There is mention, in fact, of iron, stone and wood: three prime materials which, if not exactly the totality, represent the large part of the material from which tools were manufactured in antiquity.

                                                                                                                165

Cf. GRAY, Numbers, 472. It is a little difficult to understand why BARMASH, Homicide, 120–122 presents these indicators (that is, the type of material used and the dispositions of the one striking) as alternatives: in her argument, in fact, she holds that the list of materials recorded in vv. 16– 18 serves to describe the case of malicious killing, while she regards vv. 20–21 as part of the presentation of the unintentional killing, claiming that they are “given in contrast” (p. 121). In this way, she allows it to be understood clearly that, in her opinion, the indicators are mutually exclusive: indeed, in introducing the second indicator, that is the nature of the dispositions of the killer, she says literally “Against this…” (p. 121). In reality, it appears rather clear from the text that it is dealing with complementary, not alternative elements: it is difficult, indeed, to separate the use of a death-dealing instrument from the death-dealing intention of one who acts against another person. In confirmation of these thematic considerations, there is also a literary factor: v. 21b actually takes up almost literally v. 19 in the form of an inclusion, contributing to the conferring of a certain overall unity on the block formed by vv. 16–21. 166

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With the exception of the iron tool spoken of in v. 16 (lzrb ylk), the mention of the other two materials is accompanied by a specification which makes clear that this is a case not of a generic but a violent use of these things: thus, v. 17 speaks of a stone thrown with the hand (dy !bab)167 and describes it as death-dealing with recourse to the expression …b twmy rva,168 that is, with the same syntagm with which v. 18 describes as death-dealing a wooden tool wielded with the hand (dy-#[ ylkb). Scholars are agreed in holding that the lack of an explanation of the death-dealing nature of the action in the case of the tool of iron (v. 16) is that, owing to the properties of this material, the violent use of an iron tool was always and in every case held as being aimed at causing death.169 There is, then, another factor which characterises this first group of verses devoted to the case of malicious murder: the nature of the punishment which is involved. In treating criminal acts with a fatal consequence and committed in a fully intentional manner, the only possible consequence from a legal point of view is the execution of the killer, as laid down laconically by the formula at the end of each of the statements in vv. 16–18: xcrh tmwy twm awh xcr. We have just been able to see that the behavioural paradigm known as the “lex talionis”, typical of ancient civilisations, is in force also in the biblical legislation and provides for “life for life”:170 it is not surprising, therefore, that the biblical criminal law contained in Numbers 35 states this basic principle, accompanying the description of the case (which is malicious murder) with a provision (the execution of the killer) which is attached to the crime and the threat of which appears automatic in a way.171 As if to say: given that it is a question of malice, whoever is guilty of it must pay with his own life.

                                                                                                               

167 Both in the case of v. 17 (stone) and in that of v. 18 (wood), the text speaks literally of a “stone/stick in the hand”: to understand the sense of this curious expression, it could be useful to recall expressions in current use such as “hand grenade, handball” etc. For a further example of the substantive dy used in an absolute sense (without the preposition), cf. Ezek 39,9. 168 Literally: “by means of which he will die”, so death-dealing. 169 Thus, for example, GRAY, Numbers, 473; BUDD, Numbers, 383; DAVIES, Numbers, 364; BARMASH, Homicide, 121 (who makes the interpretation go back to Rashi). 170 Cf. Lev 24,19–20; Deut 19,21. On the general characteristics of the legislation of the ANE, cf. supra, section 1.5. of the first chapter. For further study of the lex talionis as applied in the biblical texts, cf. BARMASH, Homicide, 154–177. 171 In this connection, M.J. Buss argues that the expression should be rendered in terms of possibility rather than necessity/inevitability because of the particular resultative or concessive nuance attached to the form of the imperfect (cf. BUSS, “Distinction”, 55–56). Very appropriately, P. Barmash takes up his argument, emphasising, however, that the nuance of the verb depends closely on the context in which it is being used. In the specific case of a criminal legal text, the permissive interpretation would render the pronouncement without content. Cf. BARMASH, Homicide, 154 n. 1.

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After having established the intentional nature of the act and indicated its consequences, in v. 19, the legislative text returns to speaking of the ~dh lag, who has already been introduced in v. 12 and on whom we have already dwelt previously, describing his nature and functions.172 From what emerges more or less directly from their comments, scholars tend to understand the statement in this verse as a real provision of the law by which the avenger of blood is entrusted with the execution of that capital sentence which, as we have seen, is the consequence of every deliberate homicide.173 This is also the tendency of the most modern translations which interpret the sense of the text roughly like this: The blood avenger himself shall put the murderer to death; he shall put him to death when 174 he meets him.

Without necessarily wishing to deny the value of such an interpretation, my view is that the sense of what is expressed in v. 19 – and taken up again in v. 21b with identical words – has an alternative explanation which starts out from the overall understanding of the law of Num 35,9–34 which is emerging from our analysis. In the section commenting on v. 12, I was able to speculate that the general intention of our legislative text is that of providing the killer175 with a safe haven from the avenger of blood in such a way as to guarantee him a proper trial before the assembly. It appears to be more consistent with such a general context to interpret the statement of v. 19 not as a positive resolution of the law but rather as the description of the actual situation which is marked by that blood vengeance on a family basis which the law of Num 35,9–34 is intending to supersede.176 In other words, I am asserting that v. 19 (and the same goes for v. 21b) does not intend to entrust to ~dh lag the task of executing the killer but is simply a snapshot of what actually happens. The sense of the text could thus be rendered in this way or in similar words: As for the avenger of blood, he is willing to kill (tymy) the killer; if he finds himself before him, he will kill him (wntymy).

                                                                                                                172

Cf., supra, section 2.1.4. of the present chapter. Thus GRAY, Numbers, 473; BUDD, Numbers, 383; DAVIES, Numbers, 364; LEVINE, Numbers 21–36, 556. 174 This is the translation of the The New American Standard Bible (1995). 175 I refer to what was said in section 2.1.2. of the present chapter. 176 This superseding is to be understood at least in an ideal sense. In this connection, we confirm what was said previously: the survival of the practice of the family vendetta cannot be interpreted automatically as the absence of legislation which superseded the practice of it. 173

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The desiderative or volitive nuance which is evinced by my translation of tymy falls among the characteristics belonging to the Hebrew imperfect:177 reinforcing this interpretation of the verbal form is the fact that – by contrast with what happens, for example, in the formula tmwy twm which we have analysed previously – in this case the imperfect tymy is not accompanied by the infinitive absolute which is normally used to attribute a connotation of certainty to the expression.178 Significantly, the same happens also at the end of v. 19 where we find the form equipped with the pronominal suffix wntymy and in v. 21b where tymy returns. Among other things, such an interpretation of Num 35,19 – besides turning out to be more consistent with the immediate context, as we have seen – frees the interpreter from the necessity of having to postulate that the content of v. 19 represents an anticipation of the procedure which will be presented more extensively beginning in v. 24: something which those who interpret the text as entrusting to the ~dh lag the execution of the capital sentence are forced to admit.179 As stated before, at the beginning of the comment on the thematic unit formed by vv. 16–21, the second indicator of the intentionality of the criminal act is given by the nature of the dispositions which move the killer to commit the crime: vv. 20–21, in fact, present three instances which fall under one case which in legal jargon is described as malice aforethought. After having dwelt on the description of the material component represented in the death–dealing instruments and on their use with fatal consequences, the law explains the other component indispensable for intentionality, namely, premeditation. In order to express the malice of the state of mind moving the killer to perpetrate the crime, the text makes use of three substantives: hanf, hydc (v. 20) and hbya (v. 21). The first term, hanf, is one of the substantives derived from the root anf, well attested among the Semitic languages as an antonym of the verb to love describing concretely the impulse of hatred. In the specific case of Num 35,20, the substantive is used precisely to describe a “murder as opposed to unpremeditated manslaughter”, indicating that the malevolent act which causes the death of one who undergoes it is not an accident but arises from

                                                                                                                177

So, for example, in Gen 24,58; Deut 18,6; 1 Sam 21,10; 26,6; 30,15; Ruth 1,11; 3,13. Cf. KAUTZSCH, Gesenius’ Hebrew Grammar, § 107 m; JOÜON – MURAOKA, Grammar, § 113 n. 178 Pace BUSS, “Distinction”, 56: cf. KAUTZSCH, Gesenius’ Hebrew Grammar, § 113 n; JOÜON – MURAOKA, Grammar, § 123 e; B.K. WALTKE – M. O’CONNOR, An Introduction to Biblical Hebrew Syntax (Winona Lake, IN 1990) 580–581. 179 Thus, in particular, GRAY, Numbers, 473; DAVIES, Numbers, 364.

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premeditation harboured in the breast of the assassin together with hatred towards his victim.180 In our text, the term hanf is found describing – as expressed by the preposition b with which is its equipped – the action represented by the verb @dh. It is not a very common verb181 which, when it is equipped with a direct object complement – as in our particular case – signifies ‘to push’. The premeditation, cultivated internally by the killer with his sentiments of hatred, is manifested externally in the force of a push so strong as to cause the death of the one undergoing it. The second term which is used to describe the premeditation, that is hydc, has nothing corresponding in the languages of the ANE: in fact, even in the Hebrew Bible, it appears only in Num 35,20.22 and so, to arrive at an understanding of the term, it is necessary to refer to the context. Given that the other two terms and, in general, the near context refer to the premeditation of a malevolent act, hydc is understood as ‘ambush’.182 In particular, on both occurrences, hydc is found to be qualifying – as clearly expressed by the preposition b with which it is equipped – the action described by the verb $ylvh, with the difference that, in Num 35,20, the verb lacks a direct object while, in Num 35,22, it governs the syntagm ylk-lk as an object complement. If one treats it as a transitive verb, it is hard to understand why the first occurrence employs it in an absolute way, and it appears reasonable to emend the text of Num 35,20 on the basis of the LXX and the Latin text which harmonise the expression with that recorded in Num 35,22.183 The result of the combination of the verb with our substantive is the description of an action of hurling something against someone (wyl[ $ylvh) after having set an ambush (hydcb) for him: something which expresses well the sense of the premeditation of an act which has ended up in the death of the one on the receiving end.

                                                                                                               

180 Cf. E. LIPINSKI, “anf”, Theologisches Wörterbuch zum Alten Testament (ed. G.J. BOTTERWECK – H. RINGGREN – H.-J. FABRY), VII (Stuttgart – Berlin – Köln 1993) 828– 839, spec. 831; 837. 181 In the OT, it occurs a mere 11 eleven times, two of which are in our pericope (Num 35,20.22). 182 Cf. A.H. KONKEL, “hy"dIc.”, The New International Dictionary of the Old Testament Theology and Exegesis (ed. W.A. VANGEMEREN), III (Grand Rapids, MI 1997) 743–744. 183 Respectively, the Greek text of Num 35,20.22 reads: …ἐπιρρίψῃ ἐπ᾽ αὐτὸν πᾶν σκεῦος… Thus, on the other hand, the Latin text: “…vel iecerit quippiam in eum…”. The element highlighted is the one corresponding to ylk-lk.

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In v. 21, we find the third term describing premeditation: this is the substantive hbya. Going back to the root bya, attested also in other Semitic languages to indicate the state of “being an enemy to”,184 the substantive hbya appears a mere five times in the Hebrew Bible of which a good two are in our pericope within the thematic section that we are analysing.185 The meaning which is attributed to it is that of “enmity, hostility” which describes an internal attitude of conflict which sets one person against another to the point of pressing the victor to strike to the death.186 In the case of Num 35,21, the substantive is employed to describe as intentional the action of one who, moved by enmity, strikes another with the hand and causes his death. As pointed out previously (cf. v. 18), v. 21b repeats the formula designating this kind of homicide and – according to our interpretation of the expression – confirms that the ~dh lag will kill him if he comes across him.187 *

* *

At the conclusion of the study of this section of the text (vv. 16–21) and before continuing the course of the analysis with the examination of the case of unintentional homicide, it will be necessary to reflect on some questions which arise from the reading of the text. As we have repeated on several occasions, the traditional opinion holds that Num 35,9–34 contains a law aimed at regulating cases of unintentional homicide through the institution of “cities of refuge”. If that is true and this is the ultimate objective of the legislative text, why was it necessary to devote so much literary space – an entire thematic section (vv. 16–21) – to a case like that of malicious murder which turns out to be completely irrelevant in relation to the specific object of the law? In my opinion, in order to respond to this question, it is not sufficient to postulate that the treatment of malicious murder is thought of simply as a contrasting parallel, set down by the legislator in order to clarify the case with the aim of explaining what homicide is to be held as intentional and what as unintentional.188 On the basis of what has emerged till now, I main-

                                                                                                                184

Cf. H. RINGGREN, “bya”, Theologisches Wörterbuch zum Alten Testament (ed. G.J. BOTTERWECK – H. RINGGREN – H.-J. FABRY), I (Stuttgart – Berlin – Köln 1973) 228–235. 185 The occurrences of the term are distributed thus: Gen 3,15; Num 35,21.22; Ezek 25,15; 35,5. 186 Cf. T.F. WILLIAMS, “bya”, The New International Dictionary of the Old Testament Theology and Exegesis (ed. W.A. VANGEMEREN), I (Grand Rapids, MI 1997) 365–371. 187 Cf., supra, the comment on v. 19 in the present chapter. 188 Among other things, strictly speaking, this scheme could possibly work for vv. 20– 21 and 22–23 (which, as we shall see shortly, are taken up in mirror fashion), but it is

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tain that when the text dwells on cases of voluntary homicide, it is showing that the intention of the legislation of Num 35,9–34 goes well beyond that of regulating cases of unintentional homicide: if it stopped there, in fact, we would simply be faced with a repetition of what is laid down in Deut 19,1–14. Appealing to the argument offered in the course of the analysis, on the other hand, I maintain that there are sufficient reasons for believing that the law of Num 35,9–34 is intended to extend the discourse to the superseding of blood vengeance on a family basis and of the ancestral institution of the ~dh lag: something that justifies our hypothesis of reading the text as a reformulation of the law on the “cities of asylum”. 2.2.2. The unintentional case, or manslaughter (vv. 22–23) Verse 22 introduces the presentation of the case of manslaughter, dealing with two cases of unintentional homicide which take up the content of v. 20 in mirror fashion. If we compare the vocabulary of the two verses in question, the only variant189 in v. 22 compared with v. 20 is the presence of the substantive [tp. Equipped with a preposition, the word is used here, as in its other six occurrences in the Hebrew Bible, in an adverbial manner with the meaning of ‘suddenly’.190 Significantly, the two uses of the term in a legal context are both found in the book of Numbers: in Num 6,9, [tp is employed in the context of the prescriptions to which those who made the Nazirite vow were to be subject;191 the other occurrence is precisely our Num 35,22 in which the term is employed to strengthen the idea of the absence of premeditation and of the fortuitous nature of the event which has a fatal outcome, namely the push expressed with recourse to the verb @dh exactly as in Num 35,20.

                                                                                                                difficult to match it to the content of vv. 16–18 which does not find any correspondence in the rest of the pericope. 189 We have already been able to explain the difference relating to the syntagm ylk-lk, present in v. 22 and absent from v. 20 (cf., supra, the comment on v. 20 in the present chapter). 190 In addition to our text, the term occurs in Num 6,9; Prov 6,15; 29,1.5; Is 29,5; 30,13; Hab 2,7. Cf. A. TOMASINO, “[tp”, The New International Dictionary of the Old Testament Theology and Exegesis (ed. W.A. VANGEMEREN), III (Grand Rapids, MI 1997) 720–721. 191 “If someone dies very suddenly (~atp [tpb) in their [the Nazirites] presence, defiling their dedicated heads, they shall shave their heads on the day of their purification, that is, on the seventh day”.

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Verse 23 presents a third case of manslaughter: what emerges on even a first reading of the text is the repeated mention of the fortuitous and unintentional nature of the act which ends up as a homicide which is presented by the text precisely as an accident. The syntax of the phrase appears a little bizarre:192 ‫שׁר־י ָ֥מוּת ָבּ ֙הּ בְֹּל֣ א ְר ֔אוֹת ַויּ ַפֵּ ֥ל ע ָָל֖יו ַויּ ָ֑מ ֹת וְהוּ ֙א ֹלא־אוֹ ֵי ֣ב ֔לוֹ וְֹל֥ א ְמב ֵ ַ֖קּ שׁ ָר ָע ֽתוֹ׃‬ ֶ ‫֣אוֹ ְבכָל־ ֶ֜א בֶן ֲא‬

As can be noted, the peculiarity lies in the fact that the verb of the clause which describes the main action (that is lpyw) turns out to be placed after the syntagm which forms its object complement (hb twmy rva !ba-lkb). Although S.R. Driver registers the phenomenon as possible in cases in which there is reference to something which has happened in the past or which at any rate is certain,193 G.B. Gray rightly observes that in this particular case we have a verb – lpn in the causative hiphil – which governs a direct accusative.194 This phenomenon can be understood as an attempt at conforming the clause to the many other statements in this legislative text which begin with …b.195 Among other things, this would explain the curious recourse to the same preposition b to indicate the direct object (!ba-lkb), something rather unusual given that normally this preposition is used to introduce indirect complements.196 Beyond this grammatical and syntactical singularity, the meaning of the text can be interpreted unequivocally as the description of a further case of manslaughter. Continuing the mirror comparison with vv. 20–21 begun in v. 22, Num 35,23 takes up again as a contrast an element which has already emerged in the presentation of the malicious case – hbya, enmity – and adds two other expressions which serve to underline further the unintentional nature of the act: twar alb “without seeing” and wt[r vqbm alw “without seeking his injury”.

                                                                                                                192

Gray had already noted the fact, asserting that the construction is irregular (cf. GRAY, Numbers, 474). 193 Cf. S.R. DRIVER, A Treatise on the Use of the Tenses in Hebrew and Some Other Syntactical Questions. Third Edition, Revised and Improved (Oxford, UK 1892) § 127. 194 Cf. GRAY, Numbers, 474. 195 A good 8 statements in the law contained in Num 35,9–34 begin in this way: in fact, we have …b ~aw in vv. 16.17.20.22.26; and …b wa in vv. 18.21.23. 196 Cf. KAUTZSCH, Gesenius’ Hebrew Grammar, § 101–102; JOÜON – MURAOKA, Grammar, § 103. In confirmation of that there is also the fact that the notes of BHS propose to emend the text of Num 35,23a eliminating the preposition and reading simply !ba lk.

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2.2.3. The key function of Num 35,24 To judge from the exposition of the text and from its syntactic structure, there does not appear to be any dissolution of continuity between v. 22 and v. 24: from a merely syntactical point of view, in fact, the latter verse represents the apodosis of what vv. 22–23 had stated in the form of a protasis.197 From a thematic point of view, however, the content of Num 35,24 clashes with the immediate context (that is, vv. 22–23). In fact, the text reads: […] then the assembly (hd[h) will judge between the slayer (hkmh) and the avenger of blood (~dh lag) on the basis of the following ordinances.

As we have been able to see, vv. 22–23 – which, we must not forget, constitute from a syntactic point of view the protasis of the text we are analysing – deal unequivocally with manslaughter, something which is certain from the multiple and repeated recourse to the expressions and terms on which we have dwelt above. If the case in question has already been clarified conclusively as unintentional by the previous verses, why then does v. 24 refer again to the judgement of the community, charging it to resolve the litigation between the slayer and the avenger of blood? G.B. Gray already noted the incongruity: “The logical and symmetrical conclusion to this would have been: the manslayer is no murderer; the go’el shall not put him to death”; 198 and, in fact, in the continuation of his argument, he is compelled to hypothesise that v. 24 is connected logically with and acts as conclusion to vv. 20–21 rather than vv. 22–23, seeing that “the question of previous enmity and intent is precisely what the judges have to determine”. 199 There is in the text of Num 35,24 an element which could help to resolve the question and to avoid having to admit that we are faced with the umpteenth redactional mess or the customary imprecision of the redactor of the text: I mean the participle hkmh with which the killer is qualified. Bearing in mind the general tendency to prolixity (ending up in redundancy) of the whole pericope of Num 35,9–34, but, I would say, especially of the verses immediately preceding this one, in which there is no paucity of words and expressions to describe the presence or absence of intentionality in the act of killing, one is prompted to ask: why on earth does v. 24 seem to be so terse to the point of being generic in not qualifying the author of a very serious criminal act such as homicide?

                                                                                                               

197 On Hebrew conditional clauses and their formation, cf. KAUTZSCH, Gesenius’ Hebrew Grammar, § 159; JOÜON – MURAOKA, Grammar, § 167; WALTKE – O’CONNOR, Hebrew Syntax, 636–638. 198 GRAY, Numbers, 474. 199 GRAY, Numbers, 474.

2. Exegetical analysis of Num 35,9–34

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On close examination, this situation is very similar to the one which we have already encountered in Num 35,12 and which will return several times in the immediately following verses which speak generically of xcr without specifying if murder or manslayer is meant.200 Analogously to what I maintained previously,201 my view is that the summary and generic nature of the description of the author is not in fact to be attributed to lack of precision or confusion on the part of the compiler of the text but is completely deliberate and falls within the objectives of the text itself. As I have repeatedly maintained, in fact, I am persuaded that the legislation of Num 35,9–34 is intended to correspond with a very precise aim: to offer a law which regulates every type of homicide, since the law is aimed at protecting every type of hkm – inadvertent homicide (vv. 12.15), malicious murderer (vv. 16–18) or manslayer (vv. 22–23) – from the hands of the avenger of blood. In this perspective, v. 24 lends itself well to functioning as a hinge which joins the presentation of the various kinds of homicide (vv. 16–23) with the series of laws aimed at regulating the same (vv. 25–29): a hinge which keeps firmly in the centre of the whole discourse the hd[ understood as the ‘place’ of judgement in which the killer can take refuge – the reference to the term jlqm is fully deliberate – sheltering from the vendetta of the avenger of blood. 2.2.4. Procedure to be adopted in the case of homicide (vv. 24–29) In confirmation of what has just been said concerning the central role of the assembly, the series of ~yjpvm (legal rules) introduced in v. 24 opens in v. 25 with a new double mention of the hd[. The first verb employed in v.25a to express the action of the assembly is wlychw, converted perfect of the root lcn which, in the hiphil conjugation means “rescue, deliver, save”.202 Fully in line with our interpretation, the text begins by confirming that it is precisely to the assembly that the task belongs of rescuing203 the killer – described for the umpteenth simply as xcrh, without specifications – from the hands of the avenger of blood.

                                                                                                                200

So in Num 35,25.26.27.28. We refer to what was said in connection with this in the comment on Num 35,12 (cf. section 2.1.5. of the present chapter). 202 In the Hebrew Bible, the verb lcn is never attested in the qal; in the niphal, 15 times; in the piel, a mere 4 times; and it is employed in the hiphil a good 191 times. Cf. F.L. HOSSFELD – B. KALTHOFF, “lcn”, Theologisches Wörterbuch zum Alten Testament (ed. G.J. BOTTERWECK – H. RINGGREN – H.-J. FABRY), V (Stuttgart – Berlin – Köln 1986) 571. 203 It should not surprise us that the verb wlychw e wbvhw is in the plural although its subject is hd[: even if morphologically singular, this term is actually considered as a collective. 201

100 Chapter III: “Repetition or Reformulation?”. The Curious Case of Num 35:9–34 It is interesting to observe that when it is employed in combination with dym (“from the hand of”), as in this particular case, the causative form of lcn indicates “deliverance from the control of hostile hands (i.e. oppressors)”.204 Seeing that the hands from which the killer has to be delivered are those of the avenger of blood, it does not seem forced to claim that the text is also making use of this nuance of the verb to condemn – or, if not, at least to distance itself from – the action of the ~dh lag. He is presented as an enemy, a hostile person from whose hands the assembly rescues one who finds himself in danger, namely, the killer. The second action which v. 25 attributes to the assembly is expressed by the verb wbvhw, converted form of the perfect hiphil from the root bwv. This is a very common and rather important verb with a use well rooted in other Semitic languages and generally associated with a movement; often, however, it is employed in a figurative sense, taking on very significant theological implications.205 The physical value of the action expressed by the verb means to return, while the figurative sense assumes in the majority of cases a religious value and usually means to repent, convert.206 It is clear that in our particular case everything hinges on the interpretation of the force of wbvhw in Num 35,25: concretely, it is a matter of establishing whether the verb in question is to be understood in a physical sense as movement or rather in a figurative sense as a kind of religious expression. In general, the commentators – probably drawing on the semantic value of the other two occurrences of the verb bwv in the same chapter, in which the form quite clearly has the force of shifting from one place to another207 – tend

                                                                                                                204

R.L. HUBBARD, “lcn”, The New International Dictionary of the Old Testament Theology and Exegesis (ed. W.A. VANGEMEREN), III (Grand Rapids, MI 1997) 142. Num 35,25 is among the examples cited. 205 The verb occurs more than 1050 times in the OT: cf. A. GRAUPNER – H.-J. FABRY, “bwv”, Theologisches Wörterbuch zum Alten Testament (ed. G.J. BOTTERWECK – H. RINGGREN – H.-J. FABRY), VII (Stuttgart – Berlin – Köln 1993) 1129. 206 Cf. J.A. THOMPSON – E.A. MARTENS, “bwv”, The New International Dictionary of the Old Testament Theology and Exegesis (ed. W.A. VANGEMEREN), IV (Grand Rapids, MI 1997) 56–58; GRAUPNER – FABRY, “bwv”, 1129–1152. 207 We are talking here precisely of Num 35,28 and 35,32. From a comparison of the verbal forms and the contexts of the three occurrences of bwv, however, there emerge some differences which cannot be passed over lightly. The first difference is observed from the merely formal point of view: whereas, in Num 35,25, the form is causative (hiphil) and has the assembly as subject and the killer as object, in the remaining two cases (bwvy and bwvl respectively), the verb is in the qal and has xcr as its subject. The other difference regards, in fact, the way in which the verb is used: only in the first case (v. 25) is the movement described by the verb directed towards the place of refuge; in both the other two instances, however, the return of the xcr is directed towards “his heritage”, as is clearly evinced by the mention of #ra which appears both in v. 28 and in v. 32 as the goal of the return. Last but not least, the interpretation of the verb bwv in a physical sense (of motion from one

2. Exegetical analysis of Num 35,9–34

101

to interpret the action expressed by wbvhw in a physical sense: in this way, they maintain that the passage signifies simply that the assembly, after having judged him, has the role of remanding the killer in the “city of refuge” to which he had escaped.208 This interpretation, apparently the most obvious and immediate, raises not a few difficulties: first and foremost, strictly speaking, it presupposes the fact that the hd[ called to judge the killer is located in a place physically distinct from the “cities of refuge”; something which does not emerge from the text from beginning to end with the result that it is inferred without any question of proof.209 Secondly, such an interpretation does not seem to match the content of v. 24: as we have been able to see, this verse introduces the series of laws to be followed in cases of homicide, clarifying that it is the assembly’s role to judge between the killer and the avenger of blood. Now, if the verb wbvhw is interpreted in a physical sense (“it will make him return to the city of refuge”) and it is added to the immediately preceding piece of information (“it will rescue him from the hands of the avenger of blood”), one is compelled to maintain that the only thing which the hd[ can do is to express a judgement favourable to the killer, prescinding from the fact that it is dealing with a murderer or a manslayer.210 The interpretation which I have offered previously of the meaning and value of the “cities of refuge” could be help in understanding the verb wbvhw, avoiding having to make use of conceptual additions which make up for the presumed deficiencies or incongruencies in the text. In the course of our analysis, we have hypothesised that the aim of the entire legislation consists in removing from the hands of the ~dh lag whoever is tainted with homicide, something confirmed, among other things, by the first part of the same v. 25 with which we are concerned. Commenting on the fact that Num 35,14 does not list the names of the cities chosen as places of refuge, I have advanced the hypothesis that this is not to be attributed to chance or to the superficiality of the redactor of the text but is responding to a specific plan: to

                                                                                                                place to another) creates – as we shall see – not a few difficulties in the understanding of the dynamic of the actions described in v. 25, while it is perfectly suitable for describing the movement of the xcr both in Num 35,28 and in 35,32. 208 Thus GRAY, Numbers, 475; BUDD, Numbers, 383; DAVIES, Numbers, 365. 209 G.B. Gray is compelled to admit as much: “The congregation shall send him back to his city of refuge which, it must be inferred, he had left to take his trial” (GRAY, Numbers, 475: italics are mine). 210 It is clear that this objection is wholly based on the interpretation which we have supplied with regard to v. 12 and which we have confirmed in the comment on v. 24, asserting that Num 35,9–34 intends to regulate every case of homicide, not only the unintentional ones as common opinion holds. Hence, in order to avoid repetition, I refer to what was said above in connection with the argumentation in support of this hypothesis.

102 Chapter III: “Repetition or Reformulation?”. The Curious Case of Num 35:9–34 place at the centre of the legislation regarding the regulation of killers the judgement of the assembly, the body qualified to interpret and apply the hrwt. Later, in the context of the comment on v. 15, we have interpreted the extension of the laws of guarantee proper to the Israelites to the rg and to the bvwt as a significant indicator of the gradual transition from the jus soli to the jus personae which fits well into an historical contingency such as that of the post-Exilic period, in which the “remnant of Israel” no longer enjoyed political and administrative autonomy but lived under the yoke of foreign domination (first, neo-Babylonian, then Persian, finally, Hellenistic). On the basis of these considerations, my view is that the verb wbvhw in Num 35,25 is not to be understood in its strict sense of describing the physical changing of the killer from one place to another: we have seen that this is something which creates not a few problems in the understanding of the dynamic of the text. Instead, it turns out to be less problematic to interpret the verb in a figurative sense as the bringing back of the killer to the only sphere which rescues him from private vengeance, that is, the hrwt. This proposal for interpreting the verb in a broad sense is supported by the fact that, as already mentioned, in various other circumstances, the verb bwv is employed by the Hebrew Bible to express an interior movement of change which, in the vast majority of cases, is explained in terms of conversion understood as “return to YHWH” which is expressed principally in the observance of his commandments and in faithfulness to the law.211 If we put together, almost in the mode of a hendiadys, the two actions which Num 35,25a assigns to the hd[, we would have then a situation where the assembly is called upon to rescue (wlychw) the killer from the hands of the avenger of blood in order to bring him back (wbvhw) within the sphere of the law, the real “place of refuge” where the accused can be guaranteed, not immunity – as those who interpret the verb wbvhw literally find themselves compelled to maintain – but rather the certainty of a fair trial. As was suggested already in the comment on v. 14, therefore, it would be the hrwt which is hidden behind the “city of refuge”: something which is well adapted to a community like that of post-Exilic Yehud which, no longer having any other points of reference, rests on the Law as the pivot and point of reference where identity is concerned and on the institutions which guarantee that it will be implemented and applied.

                                                                                                               

211 Thus, for example, in Is 44,22; repeated several times in Jer 3,11–4,2; Ezek 14,6; Hos 14,1–2; Joel 2,12–13; Mal 3,7; 2 Kgs 17,13; 2 Chr 30,6.

2. Exegetical analysis of Num 35,9–34

103

Such an interpretation, focusing on the Torah as true “city of refuge”, throws light on the understanding of the verses immediately following. Verse 25b indicates the “high priest who has been anointed with the holy oil”212 as the limit of permanence of the killer within the “city of refuge”, something, among others, repeated for a good two occasions by v. 28. Maintaining the hypothesis which we have held up to now, namely, that the text is referring to a place – the “city of refuge” – making use of it as an image to indicate the protection guaranteed by the law so that a fair trial can be held, the reference to the death of the high priest is understood as an event which interrupts this protection.213 Scholars give various interpretations for the reason why the death of the high priest had the prerogative to suspend this legal protection, but there seem to be two major positions on this: one can be described as being of a historico-political type; the other as a religious one.214 Some exegetes hold that the situation reflects an historical moment when the high priest had assumed the position formerly occupied by the king: this is something inferred from the reference of the text to oil, a typical feature of royal investiture. The death of the king – or, in any case, a succession to the throne for whatever reason – involved, among other things, a general amnesty, a measure intended to ingratiate the new sovereign with his subjects. Similarly, the death of the high priests, who, according to this hypothesis, had taken the place of the king as head of the post-Exilic Jewish community, would also have given rise to a measure of clemency erga omnes, thus justifying the suspension of the legal protection exercised in dealing with the crime of homicide.215

                                                                                                                212

This is a redundant expression, typical of the priestly texts (cf. Lev 6,20; 16,32; 21,10 etc.), which normally indicate – though without naming them – Aaron or his son, Eleazar, who succeeded him as high priest. For the biblical tradition relating to this succession, cf. F. COCCO, “‘Mors tua, vita mea’. Eleazaro e il sommo sacerdozio”, Biblica 94 (2013) 509–533. On the priestly nomenclature of the late period, cf. J.W. BAILEY, “The Usage in the Post Restoration Period of Terms Descriptive of the Priest and High Priest”, Journal of Biblical Literature 7 (1951) 217–225. 213 For the sake of clarity, let me explain exactly what I intend by the expression “protection of the law”. The fact that the killer is under the protection of the law, having taken refuge in the “city of refuge” which is an image of the law itself, does not signify absolutely that he has a guarantee that he will not be punished: what is guaranteed to him is the saving of his life from the hands of the avenger of blood with a view to a fair trial. Moreover, no one escapes from the fact that the hd[, if it proves his guilt, has the right and duty to declare the death of the killer. 214 For other minor interpretations (among which a typology of a christological stamp), cf. W. DRIVER, “The Release of Homicides from the Cities of Refuge”, Grace Journal 1/II (1960) 7–22. 215 So, already, J. WELLHAUSEN, Prolegomena zur Geschichte Israels (Berlin 61905) 144, taken up then by: B. BAENTSCH, Exodus, Leviticus, Numeri (Handkommentar zum

104 Chapter III: “Repetition or Reformulation?”. The Curious Case of Num 35:9–34 Other commentators, however, do not agree with this historico-political reading of the death of the “high priest anointed with the holy oil”, and, considering the general tenor of Num 35,9–34, attribute to the expression a value that is more properly religious and which could have reference to the expiatory function of the high priest. Since the priestly texts consider the shedding of human blood a direct offence against God, the exclusive Lord of life, whoever stains himself with it – even if involuntarily – remains guilty nonetheless in his eyes.216 Therefore, the death of the high priest, would be being presented by the text of Num 35,9–34 as the only form of expiation able to bring about the remission of this crime, permitting the killer to return to his own land (cf. 35,28).217 As we have said at the beginning of the exegetical analysis218 and as will emerge better from the comment on the closing verses, the text of Num 35,9– 34 undoubtedly has a strongly religious frame: in this direction, the observations of M. Greenberg tend basically to conform to the general sense of our pericope. That being conceded, the historical information that we possess relating to the post-Exilic period is so scant and so difficult to interpret that we cannot simply claim that the historico-political hypothesis is to be excluded a priori. In any case, both the hypotheses explaining the specific meaning of the death of the high priest agree on one point: that we are dealing here with a key event which has the power to intervene and change the ordinary procedure providing the protection of the law for one tainted with homicide. In this way, they lend themselves well to providing a juridical base (whether of a political or a religious nature) which allows the killer to be freed from the protection represented by the “city of refuge” and return to a normal life, as suggested by the close of v. 28. In line with the previous discourse, vv. 26–28 make clear for the umpteenth time that the aim of the legal protection – namely of the “cities of refuge”, according to the conception of the text – is that of constituting a bulwark against the revenge of the avenger of blood. This time, the text does the opposite, declaring that, when the killer219 takes the decision to leave the envi-

                                                                                                                Alten Testament 2; Göttingen 1903); NOTH, Numbers, 255; M. DAVID, “Die Bestimmungen über die Asylstädte in Josua XX”, Oudtestamentische Studiën 9 (1951) 30–48; DE VAUX, Institutions, I, 162. 216 Cf., especially, Gen 9,6. 217 Thus M. GREENBERG, “The Biblical Conception of Asylum”, Journal of Biblical Literature 78 (1959) 127, taken up by BUDD, Numbers, 384; DAVIES, Numbers, 365–366. 218 Cf., supra, the comment on v. 11 of the present chapter. 219 Without repeating what we have emphasised several times, we limit ourselves to noting that, in this case too, the term xcrh appears without further qualifications, something which happens a good three times in the course of three verses (vv. 26–28).

2. Exegetical analysis of Num 35,9–34

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ronment of the “city of refuge”, he will lose the protection of the law and end up in the hands of the ~dh lag. To express this concept, the text makes use several times of spatial elements – verbs, prepositions or adverbs. It will be useful the follow the dynamic of these elements. First of all, v. 26 presents the decision to leave the “city of refuge” as a firm resolution on the part of the killer. This is evidenced by the presence of the infinitive absolute which accompanies the main verb acy. This indicates that what we have here is not a casual departure but the conscious decision to withdraw from the protection of the law in order to move outside the law. If we paraphrase the text so as to preserve its recourse to spatial movements, we could say that, by going out of the law (represented by the “city of refuge”), the killer loses all guarantees and enters as an outlaw into a dimension governed by outlaws. In fact, if the avenger of blood comes across him, he will kill him: significantly, in this case too – exactly as happened in v. 21 – the text makes use of the verb xcr to indicate a killing carried out by one who, like the avenger of blood, is not referring his own case to the judgement of the assembly and is carrying out justice with his own hands.220 In general, commentators interpret the final words of v. 27b as a sort of declaration of the non-culpability of the avenger of blood.221 The text reads: ‫ו ְָר ֞ ַצ ח גּ ֹאֵ ֤ ל ַה ָדּ ֙ם ֶא ת־הָ ֣ ר ֹ ֵ֔צ ַח אֵ ֥ין ל֖ וֹ דָּ ֽם‬

In an attempt to remain faithful to the context, my view is that the text of Num 35,27b is to be interpreted consistently with the content of vv. 19–21: according to the interpretation which we have given there, in that case, the law did not assign to the avenger of blood the task of slaying the killer, but simply pointed out his disposition to do so. In the same way, there is no intention here of justifying the operation of the ~dh lag by declaring his lack of liability: rather, it is limited to stating that there will not be a law on the basis of which the avenger of blood could be held guilty of shedding blood because the killer has chosen to leave the area of guarantee represented by the law. The text merely repeats something which, moreover, is sufficiently obvious: there can be no law for one who has voluntarily made himself into an outlaw. That derives from the fact that, outside the area of the Torah, the real place of refuge, there is not a hd[ which, on the basis of what is prescribed by Num 35,24, can act as judge between the killer and the avenger of blood.

                                                                                                                220

See the interpretation of the verb xcr which has been defended previously, especially in the section commenting on v. 12. 221 Thus, for example, GRAY, Numbers, 475; BUDD, Numbers, 384; DAVIES, Numbers, 365; LEVINE, Numbers 21–36, 558.

106 Chapter III: “Repetition or Reformulation?”. The Curious Case of Num 35:9–34 Verse 29 clearly has a conclusive, in some ways summary, nature: judging from its location, we can say that it is meant to seal the content of the legal arrangement, taking up in inclusive form what had been introduced in Num 35,24. Significantly, in order to describe the content of the prescriptions (hqx) of the law, the test makes use again of the substantive jpvm, the root of which opened and closed v. 24.222 It appears to me very significant and even symptomatic that the text summarises the content of the law as jpvm tqx, “law of judgement”:223 as if to underline further that the general sense of the law is that of guaranteeing a just judgement in the case of homicide, superseding the custom of blood vengeance. There is another extremely interesting element in this verse, even if it seems to have a function that is merely summarising: marking again the extension of the law, the text states that the ordinances will be valid first of all for the Israelites (~kl), then for their future generations (~kytrdl) and concludes with a spatial mention, ~kytbvwm lkb “in all your dwellings”. Despite the fact that it is sometimes present in the Pentateuch, the expression is not so frequent as to be considered a stereotyped formula:224 that persuades us to exclude that its use in Num 35,29 is fortuitous or merely the fruit of harmonisation with other similar passages. Instead, I maintain, this spatial mention with which the validity of the laws is extended to all the places of residence of the Israelites (present and future) is to be read in continuity with the information received up to now from the text which aims at superseding the limit imposed by a law of a local type in order to give rise to a law which concerns every person belonging to the people of Israel, regardless of their city of residence.225

                                                                                                                222

As we have seen in the comment section, v. 24 opens with the verb wjpvw and closes with the syntagm hlah ~ypvmh. 223 The expression jpvm tqx appears only one other time in the Hebrew Bible, by coincidence in our book of Numbers and, in fact, in Num 27,11, in the context of the event which sees the daughters of Zelophehad as protagonists: in this case too, the syntagm is employed to seal the legal arrangement contained in the text. 224 In addition to our case, the syntagm ~kytbvwm lkb occurs 6 times in total: in Ex 12,20; Lev 3,17; 7,26; 23,3.21; Num 15,2. 225 This is what we have described as a passage from the jus soli to the jus personae. In this connection, cf. what was said previously with regard to the absence of names for the cities (vv. 13–14); to the extension of the law to the “resident stranger” (v. 15); and to the figurative interpretation of the verb byvh (vv. 25).

2. Exegetical analysis of Num 35,9–34

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2.3. Procedural clarifications and theologico-religious conclusion (vv. 30–34) The summary and inclusive nature of v. 29, demonstrated a short while previously, could undoubtedly press one into considering this verse as the conclusion of the entire literary unit that was begun in Num 35,9. As we anticipated in the section on the demarcation of the passage, there is no lack of authors who hold, in fact, that the law on the “cities of refuge” concludes in Num 35,29.226 To the literary signal represented by the content of the verse is added the basic hypothesis of those who hold that the entire legislation is concerned only with cases of unintentional homicide. In fact, if one maintains this hypothesis, it is difficult to understand the meaning of a series of procedural arrangements such as those contained in Num 35,30–31 which clearly relate to the case of malicious murder: v. 30, indeed, states that whoever kills another person has to be put to death following the testimony of two witnesses; and v. 31 adds that this capital sentence cannot be commuted by a money payment. It is quite evident that in both cases it is being presupposed that the homicide in question is malicious and deliberate. That impels various authors to claim that this part was added at a point in the redactional history of the texts and that, basically, it turns out to be rather incongruous within our pericope in that it seems foreign to the overall logic of the text.227 The considerations developed with regard to the history of the composition of the text,228 together with the general interpretation of the pericope which we have provided till now, maintaining that the legislation of Num 35,9–34 concerns every case of homicide and not only cases of manslaughter, avoid once again our having to conclude that the passage is “out of place” or that, in their production of the text, the editors were lacking in care and accuracy. Although it is possible that they were added somewhat later than the rest of the pericope, the laws recorded in vv. 30–32 are easily understood as the procedural corollary accompanying the fundamental legal concept expressed in the central part of the law (vv. 24–29), namely: to guarantee the killer a fair trial by superseding the practice of summary justice typical of blood vengeance.

                                                                                                                226

So, for example, LEVINE, Numbers 21–36, 547–548. Thus GRAY, Numbers, 475; NOTH, Numbers, 256; BUDD, Numbers, 382–383; DE VAULX, Nombres, 397 who speaks of the “caractère erratique du v. 30”; and the already cited LEVINE, Numbers 21–36, 547–548. 228 Cf. section 2.1.8. of the present chapter. 227

108 Chapter III: “Repetition or Reformulation?”. The Curious Case of Num 35:9–34 2.3.1. Procedural clarifications (vv. 30–32) As mentioned before, v. 30 introduces the theme of the necessity of several witnesses who give agreed testimony to the dynamic of the facts relating to the homicide. The substantive employed is d[, which indicates a person who has direct knowledge of a fact and who is, therefore, morally bound to bear truthful witness to it.229 In the specific case of a crime which involves as a consequence the putting to death of the one who is recognised as having committed it, the Torah provides that there must be a multiple attestation of the deed, and that for two reasons: first of all, the gravity of the punishment to be inflicted which is irreversible; secondly, in the Israelite legal procedure, the burden of proof laid heavily on the accused who was essentially bound to prove his innocence. As a result, and also to limit cases of false accusation – severely punished, incidentally (cf. Deut 19,18–19) – the law lays down the inadequacy of a single witness.230 One understands, therefore, why our text speaks of ~yd[, indicating that there has to be more than one witness of the homicide so that the fact is duly attested and the killer can be condemned to death. The same v. 30 continues by stating that where there is only one witness, there can be no opportunity to proceed. This is a custom widely attested in other civilisations also.231 Verses 31–32 are linked by the anaphoric repetition of the syntagmatic expression rpk wxqt-alw, “you shall not take ransom”. The substantive rp,Ko indicates precisely the “price for ransom of a life”.232 In the first place, what we have here is a technical juridical term which is used to describe the settlement which is reached between two parties involved on account of a homicide,

                                                                                                                229

Cf. Deut 17,6; 19,15. Cf., also, M. GREENBERG, “Witness”, The Interpreter’s Dictionary of the Bible. An Illustrated Encyclopedia (ed. G.A. BUTTRICK), IV (Nashville, TN 1962) 864. 230 On the subject of the need for the common testimony on the part of two or more witnesses, cf. B. WELLS, The Law of Testimony in the Pentateuchal Codes (Beihefte zur Zeitschrift für Altorientalische und Biblische Rechtsgeschichte 4; Wiesbaden 2004) 82– 108. 231 The same norm was in force, for example, in the Roman world, and the Latins had summarised the custom in the following formula: “In dubio, pro reo”. This sentence is listed in the Digesta seu Pandectae of Justinian (Digestum L, 17, 125) which we mentioned in section 1.2.1. of the first chapter. Another sentence which can be ascribed to the jargon of Catholic canon law, states the same principle as Num 35,30 with the words: “Unicus testis, nullus testis”. 232 Cf. BROWN – DRIVER – BRIGGS, Lexicon, 497.

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109

usually of an accidental kind.233 The chief example is represented by the case of the famous goring ox of Ex 21,30 which we have already referred to previously.234 However, from a careful reading of the occurrences of the term, little more than ten in all,235 it emerges that the substantive rpk is often employed as a synonym for another term, dx;vo, which signifies ‘bribery’. Especially the prophetic and sapiential literature make use of this association to denounce the wickedness of one who pays a sum of money or goods to cover a crime or to falsify the dynamics of the events. Commenting on the use of the term in the prophet Amos, H.W. Wolff states rather to the point: “Bribery leads to declaring the innocent guilty and the guilty innocent”.236 What is yet more serious is that, in the final analysis, such a proceeding claims to place a price on human life: the inevitable result is a devaluation of human life which in itself is above price to the extent that it belongs to God.237 It is in this context that we should read the double prohibition of accepting ransom that we find in Num 35,31–32. If the hd[ has verified the guilt of the killer, as is clearly inferred from the incidental [vr awh-rva of v. 31, there is no possibility of using human strategies such as ransom to obviate a decision which has its basis and its authority in YHWH himself, Master and Lord of the life and death of all his creatures.238 Similarly, v. 32 declares – fully in line with what was expressed in the previous verses – that no price calculated in human terms could or should withdraw the killer from the legal protection represented by the image of the “cities of refuge”, unless there intervene an

                                                                                                                233

Cf. B. LANG, “rpk”, Theologisches Wörterbuch zum Alten Testament (ed. G.J. BOTTERWECK – H. RINGGREN – H.-J. FABRY), IV (Stuttgart – Berlin – Köln 1984) 316– 317. 234 Cf., supra, section 2.2. of the second chapter. On the subject of recompense for wounding or homicide, cf., also, the recent contribution of K. SCHMID, “The Monetization and Demonetization of the Human Body: The Case of Compensatory Payments for Bodily Injuries and Homicide in Ancient Near Eastern and Ancient Israelite Law Books”, Money as God? The Monetization of the Market and its Impact on Religion, Politics, Law and Ethics (ed. J. VON HAGEN – M. WELKER) (Cambridge, UK 2014) 259–281. 235 Ex 21,30; 30,12; Num 35,31.32; 1 Sam 6,18; 12,3; Job 33,24; 36,18; Amos 5,12; Prov 6,35; 13,8; 21,18. 236 H.W. WOLFF, Joel and Amos. A Commentary on the Books of Prophets Joel and Amos (Hermeneia; Philadelphia, PA 1977) 248. 237 Cf. J.C. MCCANN, “rp,Ko”, The New International Dictionary of the Old Testament Theology and Exegesis (ed. W.A. VANGEMEREN), II (Grand Rapids, MI 1997) 711–712. 238 In this aspect, the Israelite legal system is different from those of the neighbouring societies: in the cultures of the ANE, in fact, in the case of a capital sentence, there was the possibility of repaying a sum of money as a “ransom” in exchange for the life. Cf. GRAY, Numbers, 476; PAUL, Studies, 61; DAVIES, Numbers, 367; BARMASH, Homicide, 175–176.

110 Chapter III: “Repetition or Reformulation?”. The Curious Case of Num 35:9–34 occasion such as the death of the high priest which, as we have seen, has supernatural repercussions.239 In this double prohibition, we see a good illustration of one of the peculiar characteristics of biblical law which we mentioned in the introductory chapters of this study when we spoke of the equality of all before the law.240 Prohibiting the ransom of the price of a life or using money to withdraw legal protection not only has the pedagogic quality of teaching that life is an inestimable good but also signifies the preventing of one who has many material goods at his disposal from twisting the law in his own favour. Thus, not only with words but also with deeds, the Bible teaches that all are equal before the law because the law emanates directly from YHWH. It is to him that every one of the people belongs equally whatever his own wealth. 2.3.2. Theologico-religious conclusion (vv. 33–34) What has just been said regarding the belonging of each and all of the members of the people of Israel to YHWH, which constitutes the background to the prohibition to accepting any ransom of a life as laid out in vv. 31–32, lends itself well to introducing the close of the whole pericope which takes on a clear shade of a theologico-religious character.241 As we have had an opportunity to point out in the section analysing the beginning of our legislative text, in particular in commenting on the content of Num 35,10b, the whole of the legislation relating to the “cities of refuge” has an eminently religious foundation. This conviction has been reinforced in the course of the analysis of the pericope inasmuch as it has emerged ever more clearly that the ultimate aim of the jlqm yr[ is that of withdrawing the killer from blood vengeance: something which certainly does not correspond to the offer of immunity at a good price, but – quite to the contrary – to the establishment of guarantees which issue from assuring the accused the protection of the law, a real “place of refuge” where the killer will find justice.242

                                                                                                                239

I refer to what was said previously in the section of the present chapter commenting on vv. 25 and 28. 240 See what was said supra in section 1.5.5. of the first chapter. 241 Thus, already, GRAY, Numbers, 476. 242 This justice – we repeat – can consist in the condemnation of the killer to death if his guilt is established “beyond all reasonable doubt” (cf. Num 35,30–31).

2. Exegetical analysis of Num 35,9–34

111

Verses 33–34 simply recall a concept that is fundamental for Israel: blood, which the Hebrew Bible often uses metonymically to indicate human life,243 belongs solely to God and no one else can shed it with impunity.244 The shedding of blood on the ground contaminates the ground itself: the only possible form of expiation consists in the death of the one who has shed the blood. There is a clear reference here to Gen 9,5–6 where, in the context of the drawing up of the so-called Noachic covenant, God states: Indeed for your own lifeblood I will demand an accounting: from every animal I will demand it, and from a human being, each one for the blood of another, I will demand an accounting for human life. 6 Anyone who sheds the blood of a human being, by a human being shall that one’s blood be shed; For in the image of God have human beings been made.

After the catastrophe of the flood, which YHWH decreed in order to punish the arrogance of men who were living immersed in wickedness, life is reborn on the earth as a free gift of God which is offered to whoever chooses to be faithful to him. The text just quoted confirms that only the Creator has the life of his creatures at his disposition: thus, whoever dares to shed the blood of another human being has to pay for this offence with his own life because this is an outrage against God himself. This is clearly underlined also in v. 34 which recalls that the sanctity of the land which Israel is going to enter to possess derives from the holiness of YHWH, the Holy One par excellence.245 With all this in mind, the question is: what exactly is the prohibitionadmonition in Num 35,33–34 referring to? This is a question causing problems for those commentators who maintain that the law of Num 35,9–34 is aimed at regulating the cases of unintentional homicide: if this were the case, it would have to be admitted that the provision of v. 33 pays no attention to the voluntary or involuntary nature of the action but condemns to death indiscriminately whoever is tainted with the crime of shedding the blood of another person.246 Instead, the understanding of the verse is much less problematic if one bears in mind the interpretation which we have given of the whole of the legislation up to now.

                                                                                                                243

The most eloquent example is undoubtedly Lev 17,11a: “For the life of the flesh is in the blood…”. 244 The bibliography on the subject is rather extensive: for a good and up-to-date summary, cf. P. TREBILCO, “~d”, The New International Dictionary of the Old Testament Theology and Exegesis (ed. W.A. VANGEMEREN), I (Grand Rapids, MI 1997) 966. 245 In this connection, I refer to an appropriate comment by P. Budd who states: “The idea of God’s presence at the centre of the community’s life is important to the priestly author of Numbers (cf. Num 5:3; 23:21, and the position of the Tent of Meeting in Num 1– 4)” (BUDD, Numbers, 384). 246 Very conscious of this difficulty, in commenting on Num 35,33, M. Noth is compelled to conclude: “Strangely enough, this assertion takes no account of unpremeditated killing and the granting of asylum” (NOTH, Numbers, 256).

112 Chapter III: “Repetition or Reformulation?”. The Curious Case of Num 35:9–34 First of all, we observe that the command of vv. 33–34 cannot be understood as the prohibition of every kind of killing: this would stand in contrast with a great many other dictates of the Torah which provide for the taking of the life of one who is guilty of a certain crime, some of them present in our text. It is deduced from that that what is being prohibited is the shedding of blood which results from an illegitimate act, that is which is extra legem, outside the protection and guarantee to which we have referred several times in our exegetical commentary on Num 35,9–34. Without forcing the interpretation excessively, I hold that it could scarcely be coincidental that a long legal text in which the ~dh lag plays such a large part could end precisely with the mention of the ~d as a sacred element, confirming solemnly that blood is the exclusive property of YHWH: as such, it has to remain excluded from a personal and private use such as that presupposed by blood vengeance. In my opinion, therefore, the final prohibition of the text is to be understood as a theologico-religious confirmation of what the legal provision has already expressed in detail in the individual verses of the text: the law, preserved by the divinely constituted and recognised authority (the hd[), is the only place where justice can be administered. So then, maintaining the interpretation which I have endorsed during the course of this analysis, I hold that the Torah is the only true “city of refuge” for the killer with whom the law of Num 35,9–34 is closely concerned.

Chapter IV

“From Law to Law”. Understanding the Novelty of Num 35,9–34 in the Light of Selected Biblical Criminal Laws Our exegetical analysis of Num 35,9–34 in Chapter 3 led us to give a clear demonstration of the special characteristics of this legal text. In particular, the study of the key terms and of the general organisation of the various thematic units making up the pericope contributed to the emergence of the originality of this criminal law which, according to our working hypothesis, represents a substantial advance in biblical criminal legislation in so far as it is an attempt to supersede family-based blood vengeance incarnated in the ~dh lag by remitting the decision in every case of homicide to the judgement of the hd[. Several times in the course of our analysis, we have seen that common opinion does not interpret the law of Num 35,9–34 in these terms; rather, it makes of it a sort of appendix which updates and modifies in certain points another law: in this case, that which regulates the procedure to be adopted in order to protect someone who has committed an involuntary homicide from the revenge of the avenger of blood. This law was already present in the biblical legislation. To be precise, it occurs in Ex 21,12–14; Deut 19,1–13 and Josh 20,1–7. In my view, it is precisely this vision of things which has been imposed as a real bias on the interpretation of Num 35,9–34 with the end result of relegating this legal tradition to the level of mere repetition or – in the best scenario – to the updating of pre-existing legislation. It is exactly for this reason that, in the analysis, we have inverted the usual tendency to follow the presumed chronological order of the laws concerning homicide and started off from the exegesis of the text of Numbers: now, having shown the peculiar nature of the latter, we can proceed to compare it with other thematically similar traditions without that prejudicing the nature of the text with which we are concerned.

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1. Comparison with thematically related texts 1. Comparison with thematically related texts

In order to compare the law of Num 35,9–34 and the other biblical legal texts that are akin to it thematically, I shall follow the order indicated by the commentators as the “chronological sequence” of the texts, which traditionally begins with Exodus and ends with Joshua.1 At the conclusion of this comparison, we shall be in a position to check the foundation of this sequence and finally discuss the reasons for the hypothesis which supports it. 1.1. The case of homicide in the mishpat of Ex 21,12–14 … ~yjpvmh hlaw. These first words of Ex 21,1 introduce a series of laws which extends as far as Ex 22,16, completely enshrined within the “Covenant Code”.2 Precisely because of this incipit, which is well-suited to summarising the thematic content of the whole text in question in a word, the entire section of Ex 21,1–22,16 traditionally goes under the name of mishpatim.3 Placed immediately after legislation regarding slaves (recorded in Ex 21,1–11), the mishpat of Ex 21,12–17 is concerned with capital offences, setting out a series of circumstances which have as their direct consequence the death of the one who has carried them out. Specifically, these are the offences which are listed in the text: homicide (vv. 12–14); assault on one’s parents (v. 15); theft (v. 16); and cursing one’s parents (v. 17).

                                                                                                               

1 According to the summary of A. Rofé, who records the state of the question, this hypothesis arranging the traditions relating to the “cities of refuge” goes back in substance to WELLHAUSEN, Prolegomena, 156–157; ID., Die Composition des Hexateuchs und der historischen Bücher des Alten Testaments (Berlin 41963) 204–205 and, in general, to the German school. The text of departure would be Ex 21,13–14 which indicates the sanctuaries as the generic place of refuge for the killer. Following the Josianic reform, which had as its corollary the suppression of the local sanctuaries, the tradition of Deut 19,1–13 in instituting the “cities of refuge” would have made up for the difficulty of concentrating all the legislation in the one sanctuary that remained, namely, the temple in Jerusalem. Subsequently, the law would have been extended by P in the text that we find in Num 35,9–34. Cf. H. MCKEATING, “The Development of the Law on Homicide in Ancient Israel”, Vetus Testamentum 45 (1975) 53–54; A. ROFÉ, “The History of the Cities of Refuge in Biblical Law”, Studies in Bible 1986 (ed. S. JAPHET) (Scripta Hierosolymitana 31; Jerusalem 1986) 207; M. STASZAK, Der Asylstädte im Alten Testament. Realität und Fiktivität eines Rechtsinstituts (Ägypten und Altes Testament 65; Wiesbaden 2006) 122–229. 2 On the “Covenant Code” and its role in the context of biblical legislation, I refer to what was said in section 3 of the second chapter. 3 Cf. A. JEPSEN, Untersuchungen zum Bundesbuch (Stuttgart 1927) 55–56. In connection with these first words of Ex 21,1, B.S. Childs speaks exactly of “obvious superscription” (CHILDS, Exodus, 454). For an introduction to the concept, the nature and the literary form of the mishpatim, cf. CHILDS, Exodus, 456–458; JACKSON, Wisdom-Law, 3–10.

1. Comparison with thematically related texts

115

The pericope opens by presenting quite generally the cases of homicide with these words of v. 12: Whoever strikes (hkm) a man so that he dies shall surely be put to death (tmwy twm).

This statement, which is contained in one of the numerous participial clauses with which the entire collection of the mishpatim is sprinkled,4 sounds somewhat ex abrupto and has the air of describing a provision of a general, not a particular nature: something, moreover, which is quite typical of the ancient laws which basically avoided theoretical speculation on principles and preferred to present the laws under the forms of concrete statements reduced to the essential.5 Precisely with regard to this general principle, the content of the verses immediately following is somewhat amazing: because of the formal structure of the statements contained in them, they turn out to be quite different from the rest of the mishpat: in their literary form, in fact, they are more readily assimilable to the precepts of a casuistic nature. That has induced various commentators to describe Ex 21,13–14 as a later redactional insertion than the rest of the verses which make up the periscope.6

                                                                                                               

4 Without going too far, exempli causa it is worth citing the case of the mishpat with which we are concerned. Here, there occur 4 participial phrases in the course of 6 verses (to be exact, in vv. 12.15.16.17). For the definition and example of the use of the participial phrase, cf. KAUTZSCH, Gesenius’ Hebrew Grammar, § 112 n; JOÜON – MURAOKA, Grammar, § 121 i; WALTKE – O’CONNOR, Syntax, 536. 5 I refer to what was said in this connection in section 1.5.4. of the first chapter. 6 Among those who interpret Ex 21,13–14 as an addition, cf. D. PATRICK, Old Testament Law (Atlanta, GA 1985) 73; E. OTTO, Wandel der Rechtsbegründungen in der Gesellschaftsgeschichte des antiken Israel. Eine Rechtsgeschichte des “Bundesbuches” Ex XX 22–XXIII 13 (Studia Biblica 3; Leiden – New York, NY 1988) 31–32; L. SCHWIENHORST-SCHÖNBERGER, Das Bundesbuch (Ex 20,22–23,33). Studien zur seinen Entstehung und Theologie (Beihefte zur Zeitschrift für die alttestamentliche Wissenschaft 188; Berlin – New York, NY 1990) 39–40, 123; F. CRÜSEMANN, The Torah. Theology and Social History of the Old Testament Law. Translated by A.W. Mahnke (Edinburgh 1996) 150; JACKSON, Wisdom-Law, 120. Thus, the position of J. Van Seters turns out to be peculiar: he not only maintains the late (and, therefore, dependent) nature of Ex 21,13–14, but extends it to the entire Covenant Code: cf. J. VAN SETERS, A Law Book for the Diaspora. Revision in the Study of the Covenant Code (Oxford, UK – New York, NY 2003) 106–108. His position has been criticised (although from different points of view) by: E. OTTO, “review of J. VAN SETERS, A Law Book for the Diaspora. Revision in the Study of the Covenant Code”, Biblica 85 (2004) 273–277; B. LEVINSON, “Is the Covenant Code an Exilic Composition? A Response to John Van Seters”, In Search of Pre-Exilic Israel. Proceedings of the Oxford Old Testament Seminar (ed. J. DAY) (Journal for the Study of the Old Testament Supplement Series 406; London, UK – New York, NY 2004) 272–325; D.P. WRIGHT, “review of A Law Book for the Diaspora. Revision in the Study of the Covenant Code”, Journal of the American Oriental Society 124 (2004) 129–131.

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Other authors maintain that this dissonance is not revealed only within the pericope (in the relationship, therefore, between vv. 13–14 and 11.15–17), but concerns the mishpat as a whole in its relation to the entire section of the Mishpatim. Among them, B.S. Childs, in particular, holds that it is the entire group of laws concerning capital offences that has been inserted in Exodus 21: this theory is based on the fact that, from the formal point of view, Ex 21,12–17 would be found in a more homogeneous context if it were placed after the end of the Mishpatim section, beginning, thus, at Ex 22,17 where, in fact, laws with a similar formulation appear. In its present position, on the other hand, Ex 21,12–17 turns out to form “the only major insertion of ‘apodictic’ law within the mishpatim section”: the aim of this insertion would be that of increasingly diluting the distinction between civil and religious law in Israel, corresponding to one of the declared objectives of the “Covenant Code”. The latter tends to make every type of law or norm derive from the covenant binding Israel to its God.7 Continuing with his interpretation of the pericope and the purpose of its insertion in this section, Childs states that the notable difference in style compared with the legislation on the slaves – to give only the closest example to the pericope – leads him to claim that Ex 21,12–17 originates from a background that is different from its immediate context. There is a certain agreement among scholars in holding that this background has to be found in a cultic environment, basically because of the mention of the altar which is found in v. 14. On the other hand, one certainly cannot deny that the legislation of Ex 21,12–17 could have a background of a social kind to the extent that it is legislating on vital aspects of peaceful co-existence within the “covenant community”.8 If we look closely, in fact, the series of precepts in our mishpat, just as it is formulated, seems to be a rather direct reminiscence of the part of the Decalogue which regulates interpersonal relationships: indeed, we find there the prohibition of homicide (vv. 12–14: cf. Ex 20,13); of theft (v. 16: cf. Ex 20,15) and a double mention of honouring one’s parents, expressed by means of a prohibition against striking them (v. 15) or cursing them (v. 17: cf.

                                                                                                               

7 CHILDS, Exodus, 469. SCHWIENHORST-SCHÖNBERGER, Das Bundesbuch, 213–234, is of the same opinion. 8 There is an important consideration to be made on this point: the community which the “Covenant Code” was intended to govern had for its base a religious foundation of rather clear contours represented by the covenant itself. Thus, there is no need to choose between one (the cultic) or the other (the social) of the backgrounds proposed as the background of the law in Ex 21,12–17. In this connection, it is useful to recall the fact that in antiquity there was not a neat separation between the “civil” and “religious” spheres: the distinction of these two concepts, as we understand it, is really a lot more modern and goes back to the liberal philosophical thought of the Enlightenment.

1. Comparison with thematically related texts

117

Ex 20,12). If we place the verses in question in a synoptic scheme, we obtain the following result:   Decalogue Mishpat (EX 20,13; 20,12; 20,15) (EX 21,12; 21,15.17; 21,16) ‫ֹ֥ל֖א ִתּ ְר ָ ֖צ ֽח‬

‫ַמכֵּ ֥ה ִא֛ישׁ ו ֵ ָ֖מ ת ֥מוֹת יוּמָ ֽת‬

‫ת־אָב יָך ְו ֶאת־ ִא ֶ ֑מּ ָך ְל ַ֙מ ַע ֙ן י ַ ֲא ִרכ֣ וּן י ָ ֶ֔מ יָך‬ ‫כַּבֵּ ֥ד ֶא‬ ִ֖ ‫ֹלה יָך נ ֵ ֹ֥ת ן לָ ְֽך‬ ֶ ‫֚ ַע ל ָה ֲא ָד ָ֔מ ה ֲא‬ ֖ ֶ ‫שׁר־י ְהוָ ֥ה ֱא‬

‫אָב֛יו ְו ִא ֖מּוֹ ֥מוֹת יוּמָ ֽת‬ ִ ‫וּ ַמכֵּ ֥ה‬ ‫אָב֛יו ְו ִא ֖מּוֹ ֥מוֹת יוּמָ ֽת‬ ִ ‫וּ ְמ ַקלֵּ ֥ל‬

‫ֹ֣ל֖א ִתּג ְֹֽ֔נ ב‬

‫וְג ֹ ֵ֙נ ב ִ ֧א ישׁ וּ ְמכ ָ֛רוֹ ְונ ִ ְמצָ ֥א ְבי ָ֖דוֹ ֥מוֹת יוּמָ ֽת‬

  From this comparison, two basic things emerge: the first concerns the formulation of the three precepts of the Decalogue in question; the second, their close correspondence with the content of the mishpat of Ex 21,12.15–17. Let us try to analyse each of these two aspects in detail. Two of the three precepts that we are considering are stated in the form of a permanent prohibition, shown by the employment of the negation al followed by the imperfect.9 Thus, although we have transitive verbs here, they are not followed by a direct object: this is a further literary stratagem, intended to extend the force of the prohibition, rendering it not merely permanent but also general, absolute. The case of the second precept that we are considering, the one relating to honouring parents, is formally different from the other two: both in the fact that it contains a direct object – “your father and your mother” – which makes clear univocally the sense of the verb being used; as well as in the fact that it is equipped with a comment introduced by the adverb ![ml, illustrating the positive consequences springing from the observing of this precept. Nevertheless, according to some scholars,10 these formal differences would have been the result of the transformation to which the commandment was subject when, originally, it would have had a formulation of the kind: $maw $yba llqt al. According to this hypothesis, this kind of formulation is

                                                                                                                9

This is the form which the Hebrew Bible uses to express a permanent prohibition: cf. Cf. KAUTZSCH, Gesenius’ Hebrew Grammar, § 107 o; JOÜON – MURAOKA, Grammar, § 113 m. 10 Cf. K. RABAST, Das apodiktische Recht im Deuteronomium und im Heiligkeitsgesetz (Berlin 1948) 38; A. ALT, “The Origins of Israelite Law”, Essays on Old Testament History and Religion. Translated by R.A. Wilson (Garden City, NY 1967) 158. This theory is decisively opposed by E. Gerstenberger who claims that the commandment would have had a positive formulation right from the start on the basis of the references to the honour to be bestowed on parents present in the Wisdom literature (cf. GERSTENBERGER, “Covenant”, 43–51). In his commentary on Exodus, Childs too shows himself ready to endorse this hypothesis (cf. CHILDS, Exodus, 418).

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justified by the fact that the rest of the precepts of the Decalogue are expressed in the negative,11 as also by the fact that the closest parallels to the commandment about the parents do not bear positive statements but rather precepts of a vetitive nature which express the prohibition against cursing (Lev 20,9) or not obeying (Deut 21,18–21) one’s own father and mother. Among these, there is also our Ex 21,15.17 with its double prohibition of striking and cursing parents: it is precisely this last prohibition which would form the perfect parallel with the hypothetical original formulation of the commandment.12 Regardless of the validity of the argument which is rather difficult to resolve in this section and which is, frankly, foreign to the objectives of my research, it appears to me that there is a clear and strong parallel between the content of the three commandments in question and the three prohibitions registered in the mishpat of Ex 21,12–17. If we consider the commandments as statements of general principles, universally valid regardless of circumstances, I maintain that it is not rash to consider the mishpat as a sort of implementation, a practical application, in the form of “criminal procedure” which follows the precept announced in the commandment, indicating what are the concrete consequences of the violation of the same.13 If we summarise in a table the idea just expressed, we obtain the following result:

                                                                                                                11

There is an analogous argument, in fact, for the commandment relating to the sanctification of the Sabbath which was originally put forward in a negative form as a prohibition of profaning the Sabbath by work (cf. ALT, “Origins”, 158). 12 A. Alt explains the transformation of the commandments relating to the Sabbath and to parents into positive form: “The later phrasing of the prohibition of work on the Sabbath, and the cursing of one’s parents, as positive commands, was a further step […] The verb used in the new version for ‘keep holy’ and ‘honour’ are much less concrete and much more basic than the verbs, opposite in meaning, for ‘work’ and ‘curse’, which we presume were used in the original form of these clauses” (ALT, “Origin”, 158 n. 104). 13 In the specific case of the commandment prohibiting stealing which, as we have seen, does not have a direct object which specifies the action of the verb bng, the mishpat specifies that the capital penalty is incurred by one who “steals” a person, sells him or kidnaps him. ALT, Kleine Schriften, 333–340 maintains that, in this case too, we have to postulate a variation in the meaning of the precept (this time without formal repercussions for the formulation of the commandment): in his view, the commandment was originally directed specifically at prohibiting the seizing of a person and then extended to prohibit every kind of illicit appropriation. This theory is not without difficulty, as noticed by CHILDS, Exodus, 422: for our purposes, it is sufficient to see that the case serves to demonstrate the link between the commandment and the statement expressed in the mishpat.

1. Comparison with thematically related texts

Commandment Do not kill Honour your father and your mother Do not steal

119

Procedural implementation g g g

Whoever kills will be killed Whoever dishonours will be killed Whoever steals will be killed

To return to the question that concerns us more closely, that is, the analysis of the first part of the mishpat (Ex 21,12–14), it is necessary to concede that it is with a little difficulty that vv. 13–14 form part of this comparative scheme, principally – but not only – because of the notable stylistic differences which can be observed. In fact, whereas Ex 21,12.15–17 presents formal characteristics of extreme brevity, reducing to the minimum the description of the case which is expressed simply by recourse to a participle (hkm; bgn; llqm, respectively), vv. 13–14 are of a largely discursive nature and introduce a moderate quantity of elements intended to characterise the case which is being treated in v. 12, namely, homicide. Although generally tending to claim vv. 13–14 as a textual development, as we have seen, scholars are divided in their assessment of their function within the mishpat. Some see reflected there a stage in the legal evolution of Israel: according to this hypothesis, the statement of v. 12 (“Whoever strikes a man so that he dies shall surely be put to death”) is to be considered as the starting point for Israelite legislation in connection with homicide; a starting point of an absolute nature which does not envisage exceptions or mitigations of a kind which could change the capital nature of the procedure to be adopted in the case of homicide.14 For those who maintain this hypothesis, the specific function of Ex 21,13–14 would be that of correcting this absolute perspective, moderating its effects on the basis of factors such as the intention of the one committing the act and the circumstances.15 Others, however, claim that vv. 13–14 are not to be interpreted as a correction of what is laid down in Ex 21,12 but rather as a clarification of this statement. In particular, A. Schenker, starting from the analysis of the accounts of 1 Kgs 1,50–53 and 2,28–34, holds that the institution of a place of

                                                                                                                14

This is the view of R. Rothenbusch who maintains that such prohibitions contained in the Torah attest a state of legal evolution characterised by Erfolgshaftung, that is, by what modern law describes as “objective responsibility”. In other words, we are dealing with an act that redounds on a particular subject regardless of the intentions of the one who performs the act and of possible mitigating circumstances. Cf. R. ROTHENBUSCH, “Die kasuistische Rechtssammlung im ‘Bundesbuch’ (Ex 21,1–11.18–22,16)”, Zeitschrift für Altorientalische und Biblische Rechtsgeschichte 7 (2001) 249. For his part, B. Jackson notes that this is a theory which no longer enjoys any great credibility (cf. JACKSON, Wisdom-Law, 122 with relevant references in the footnotes). 15 OTTO, “Aspects”, 195, states it thus: “[…] The general rule of the case of killing in Exod. 21.12 was followed by Exod. 21.13–14, which differentiated between fatal bodily injury and murder”.

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refuge for the killer was one of the most ancient traditions of Israel: all the same, according to this author, on account of the fact that the places of refuge were to serve only for involuntary killers, it is necessary a fortiori to hold that the distinction between voluntary and unintentional homicide was an original datum of Israelite legislation.16 To this type of argument, B. Jackson opposes the application of the notions of “narrative reading” and “restricted code” which he has developed. Starting from concepts which derive from social linguistics and applying them to biblical law, he maintains that certain legal precepts could be restricted in their formulation because already per se they evoke cases and circumstances peculiar to the social context at which these precepts are addressed. Thus, he defines “restricted code” as “one where meanings are embedded in a particular social context, and where, as a result, language needs to be less explicit, since values and understandings are shared (and known to be shared) and therefore do not require explicit statement”.17 If we apply this idea to Ex 21,12, it is easier to understand the reason for such a ‘restricted’ formulation: in the common mentality, the case of homicide, which necessarily and automatically requires capital punishment, can only be premeditated and deliberate. According to Jackson’s theory, therefore, v. 12 contains already in its formulation a specification of the case: that eliminates the need for postulating that vv. 13–14 are intended either to correct the previous law, as held by the first authors we have mentioned, or to provide further explanations and clarifications of the law itself, as claimed by the others. In any case, this interpretation of Ex 21,12 lies fully in line with the hypothesis of the majority of commentators who, as we have seen, interpret Ex 21,13–14 as a redactional insertion later than the rest of the mishpat. Assessing its nature carefully by the study of its vocabulary and the forms utilised, some scholars maintain that the insertion represents an addition of a deuteronomistic type, linked to the provisions of Deut 19,1–13 with regard to involuntary homicide.18 We turn once again to a synoptic table which will

                                                                                                               

16 Cf. A. SCHENKER, “Die Analyse der Intentionalität im Bundesbuch Ex 21–23”, Zeitschrift für Altorientalische und Biblische Rechtsgeschichte 4 (1998) 23–41. 17 JACKSON, Wisdom-Law, 25. 18 The hypothesis relating to the deuteronomistic features of the insertion is due principally to M. ANBAR, “L’influence deutéronomique sur le Code de l’Alliance; le cas d’Exode 21:12–17”, Zeitschrift für Altorientalische und Biblische Rechtsgeschichte 5 (1999) 165–166, who takes up and develops the suugestion of Y. ZAKOVITCH, “The Book of the Covenant Interprets the Book of the Covenant: The ‘Boomerang Phenomenon’”, Texts, Temples, and Traditions. A Tribute to Menahem Haran (ed. M.V. FOX et al.) (Winona Lake, IN 1996) 59*–64* (Hebrew). For a presentation and assessment of the work of Zakovitch, I refer to the comments of B. LEVINSON, Legal Revision and Religious Renewal in Ancient Israel (Cambridge, UK – New York, NY 2008) 142. Exactly contrary to the Zakovitch-Anbar position is that taken by J. STACKERT, “Why Does Deuteronomy

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121

help us greatly to demonstrate the reasons for the argument developed by those who uphold this hypothesis:19   Ex 21,13–14 Deut 19,4b.5b.11 ‫שׂ ְמ ִ ֤תּ י‬ ַ ‫ֹלה ים ִאנָּ ֣ה ְלי ָ֑דוֹ ְו‬ ֶ ‫ַו ֲא‬ ‫ת־ר ֙ ֵע ה ֙וּ ִבּ ְבלִי־ ַ֔ד עַת וְה֛ וּ א ֹלא־שׂ ֹנֵ ֥א‬ ֵ ‫שׁ֙ר י ֶַכּ֤ה ֶא‬ ֶ ‫ֲא‬ ֖ ִ ‫שׁ ֙ר ֹל֣ א ָצ ָ֔ד ה ְו ָה ֱא‬ ‫שׁ ָמּה׃‬ ֽ ָ ‫ְל ָ֙ך ָמ ֔קוֹם ֲא ֶ ֥שׁ ר י ָנ֖ וּס‬ ‫ְשׁ ֹם׃‬ ֽ ‫שׁל‬ ִ ‫ל֖ וֹ ִמ ְתּ ֥מ ֹל‬ ‫ל־אַח ת ֶהע ִָרים־ה ֵ ָ֖א לֶּה ו ָָחֽי׃‬ ‫[ ֗הוּא י ָ ֛נוּס ֶא‬...] ַ֥ ‫ַל־ר ֵ ֖ע הוּ ְלה ְָרג֣ וֹ ְבע ְָר ָ ֑מ ה ֵמ ִ ֣ע ם‬ ֵ ‫וְכִ ֽי־י ָ ִז ֥ד ִא֛ישׁ ע‬ ‫ִמז ְ ְבּ ִ֔ח י ִתּ ָקּ ֶ ֖ח נּוּ ָל ֽמוּת׃‬  

‫שׁ שׂ ֵֹנ֣א ל ְֵר ֵ֔ע הוּ ו ָ ְ֤א ַרב ל ֙וֹ ו ָ ְ֣ק ם ָע ָ֔ל יו‬ ֙ ‫וְכִ ֽי־י ִ ְה ֶי ֥ה ִאי‬ ‫ל־אַח ת ֶהע ִ ָ֥ר ים הָאֵ ֽל׃‬ ‫ְוהִכָּ ֥הוּ ֶ ֖נ פֶשׁ ו ֵ ָ֑מ ת ְו ָ֕נ ס ֶא‬ ַ֖

                                                                                                                Legislate Cities of Refuge? Asylum in the Covenant Collection (Exodus 21:12–14) and Deuteronomy (19:1–13)”, Journal of Biblical Literature 125 (2006) 23–49, taken up again in ID., A Prophet Like Moses: Prophecy, Law, and Israelite Religion (New York, NY 2014) 138. Stackert starts by rebutting the assumptions behind the thesis of P. Barmash who denies any kind of “genetic relationship” between Ex 21,12–14 and Deut 19,1–13 (cf BARMASH, Homicide, 79–80). While we shall eventually have the opportunity of turning to the specific interpretation which Stackert offers of the legislation of Deuteronomy 19, we cannot ignore here the fact that, in his reconstruction of the dependency between the two texts (Exodus 21 and Deuteronomy 19), he completely passes over the substantial difference (and the related debate among scholars) between vv. 12.15–17 and vv. 13–14 of Exodus 21 on which we have dwelt extensively. That severely weakens the parallel between the Exodus and the Deuteronomic texts because, as we have seen, the problem of the dependency between Deuteronomy and Exodus only concerns Ex 21,13–14: if v. 12 is also brought into play, the comparison inevitably turns out to be altered. The other problematic aspect of Stackert’s argument (probably linked to the preceding one) is the fact that the dependence of Deuteronomy 19 on Exodus 21 is assumed but does not seem to be demonstrated, seeing that the argument often takes on the tenor of a petitio principii. I cite merely a few examples: “[…] The formulation of Exod 21:13–14 is anomalous in the Covenant Collection but is nevertheless influential in Deut 19:4–5” (p. 36, n. 31). One asks oneself: why? Again: “While the examples from Deut 19:1–13 cited above certainly differ at points from those found in Exod 21:12–14, the similarities are quite extensive and do indeed point to direct, genetic dependence of Deut 19:1–13 on Exod 21:12–14” (p. 37): however, the basis for this dependency remains an outstanding question. Among other things, as I have already said, the strength of this argument is diminished by the fact that, in the comparison of the two texts, no account is taken of the difference between Ex 21,12 and the following vv. 13–14. 19 In the table, we shall compare only Ex 21,13–14 and Deut 19,4b–5b.11, deliberately leaving out of comparison Numbers 35 which, however, slips into the argument of Zakovitch (taken up by Anbar). According to them, the presence of the verb hdc in Ex 21,13 would be a repeat of the term hydc in Num 35,20.22. On the basis of what was said in the analysis of Numbers 35 in the third chapter, my view is that the opposite is more probable, namely that “[the verb of Exod. 21:13] is more likely to have prompted the nominalisation in Num. 35:20” (JACKSON, Wisdom-Law, 121 n. 3).

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As the table clearly shows, the terms of comparison pertain first of all to the form but then also to the content of the verses in question, things which turn out to be intrinsically bound together according to the theory of Formgeschichte to which Anbar claims to be referring 20. From a formal point of view, the two texts which describe the case of inadvertent homicide (that is, Ex 21,13 and Deut 19,4b.5b) recall each other mainly in what concerns the introduction of the statement: in fact, both verses are introduced by rva, a form “particularly associated with proclamations”.21 As already stated, the second element of comparison is represented by the content, which is the same for both texts, since they agree in referring to the case of an involuntary criminal act, or, at most, an inadvertent one (in the specific case of Ex 21,13). The same argument is applicable, in mirror fashion, to the remaining two texts, namely Ex 21,14 and Deut 19,11. From the formal point of view, both these texts are linked by being introduced with ykw; while, from the point of view of content, they are linked by the fact of presenting a case of voluntary homicide which, as such, excludes categorically the possibility of entering the place of refuge (the altar in the case of Exodus 21 and the city in Deuteronomy 19). In view of the substantial stylistic difference between the formulation of vv. 13–14 and the rest of the mishpat – already noted extensively previously – Y. Zakovitch first and then M. Anbar claim that the almost perfect correspondence (above all, formal but also in content) between Ex 21,13–14 and Deut 19,4–5.11 is to be referred to the influence of the Deuteronomic on the Exodic text. In conclusion, if the hypothesis that Ex 21,13–14 is a later redactional insertion is true, we shall have to maintain that the hypothetical original version of the mishpat relating to capital offences (that is, Ex 21,12.15–17) did not contain any reference to the possibility of offering a refuge to anyone tainted with homicide, regardless of the intention of the act. The part which provides for the shelter of the killer in a ‘place’ in which he can take refuge, namely, vv. 13–14, would probably have been added at a second stage, probably under the influence of the tradition of Deut 19,1–13 relating to the cities of refuge. It is precisely to the Deuteronomic text, therefore, that we shall now look for the possible “original nucleus” of the legislation concerning the places of refuge for someone who has committed a homicide without intending to do so. After having analysed the text – especially vv. 4–5.11 which, as we have seen, are the closest parallel to Ex 21,13–14 – we shall be better able to understand the nature of the specific contribution of the Exodic tradition to the legislation relating to cases of homicide.

                                                                                                                20 21

Cf. ANBAR, “L’influence deutéronomique”, 165. JACKSON, Wisdom-Law, 121 n. 3.

1. Comparison with thematically related texts

123

1.2. The legislation in the cities of refuge in Deut 19,1–13 Placed at almost the heart of the second speech of Moses (Deut 4,44–28,68), in the great context of the Deuteronomic code (Deut 12,1–26,15),22 the textual section which opens in Deut 19,1 and continues as far as Deut 21,9 is generally understood in terms of “criminal law”,23 given that it is concerned with regulating, in order: various cases of homicide (19,1–13; 21,1–9); encroachment (19,14); false testimony (19,15–18); lex talionis (19,21); warfare (20,1– 20); and unsolved homicide (21,1–9). 1.2.1. The relationship between Deut 19,1–13 and Deut 4,41–43 The pericope with which we are concerned, that is, 19,1–13, opens the series of these criminal laws, introducing the specific treatment of cases of unintentional homicide through the establishment of some cities in which the manslayer can find an escape from the wrath of the avenger of blood. This is a theme which is not new to the book of Deuteronomy, judging from what we read almost at the conclusion of the first of Moses’ great speeches (in Deut 4,41–43, to be precise): 41

Then Moses set apart three cities across the Jordan to the east, 42 that a manslayer might flee there, who unintentionally slew his neighbour without having enmity toward him in time past; and by fleeing to one of these cities he might live: 43 Bezer in the wilderness on the plateau for the Reubenites, and Ramoth in Gilead for the Gadites, and Golan in Bashan for the Manassites.

As often happens, the commentators are divided in their interpretation of this passage: some explain these three verses as a pause in the narrative of Deuteronomy, aimed at marking the close of Moses first speech and so preparing the ground for the second great speech containing the torah of Moses which begins in the verse that immediately follows (Deut 4,44).24 For others, instead, what we have here is a “narrative intrusion” into a context that is not original of an element which would be better understood in the context of the description of the division of the land in Deut 3,12–20.25

                                                                                                                22

For the general subdivision and structure of the book of Deuteronomy, cf. SKA, Introduction, 38–40. 23 This is the summary title attributed to the section by S.R. DRIVER, A Critical and Exegetical Commentary on Deuteronomy (International Critical Commentary 5; Edinburgh 1902) 230. Similarly, if more specifically, Christensen entitles the section “Laws concerning the Courts–Judicial and Military Matters (19:1–21:9)”: D.L. CHRISTENSEN, Deuteronomy 1:1–21:9, revised (Word Biblical Commentary 6A; Nashville, TN 2001) 413. 24 So, for example, DRIVER, Deuteronomy, 78; CHRISTENSEN, Deuteronomy, 99. 25 This is the position of M. Weinfeld, according to whom the postposition is due to the fact that 4,41–43 is redacted in the third person whereas 3,12–20 is in the first, and “the author did not want to interrupt Moses’ speech and inserted it only after the speech was

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Beyond its mere function in the narrative context, the question above all arises of the meaning of this passage which, in fact, anticipates thematically what will be laid down with a wealth of detail in another passage within the same book, namely our pericope, Deut 19,1–13. What raises the problem is the fact that this latter tradition does not seem to take into any account what was already arranged in 4,41–43, seeing that it introduces the theme of the designation of the cities of refuge as if it were dealing with a quid novum. In the attempt to resolve this aporia, some scholars advance the hypothesis – a rather attractive one, in my opinion – that Deut 4,41–43 is to be understood as a late redactional insertion, of a Deuteronomic stamp nonetheless, aimed at complementing the information regarding the cities of refuge contained in the legislation of Deut 19,1–13. According to the advocates of the hypothesis, this law could have been considered partly deficient seeing that it established the constitution of cities of refuge only within the borders of Canaan:26 the supplementary information contained in Deut 4,41–43 would be making up this deficiency, completing the ideal picture with the designation of three cities of refuge in Transjordan also.27 1.2.2. The internal structure of Deut 19,1–13 Having tried to understand the terms of the relation between Deut 4,41–43 and 19,1–13, we shall now concentrate our attention on the latter which is of direct interest to our study. There are no difficulties regarding the demarcation of the passage: as already pointed out, in fact, the inchoative function of Deut 19,1 goes well beyond the individual pericope, extending to the entire

                                                                                                                terminated” (M. WEINFELD, Deuteronomy 1–11. A New Translation with Introduction and Commentary [Anchor Bible 5; New York, NY 1991] 232). 26 The reference to the location of the cities which we find in Deut 19,2 concerns, in fact, only the land of Canaan and not Transjordan: ֽ‫שׁ ָתּ‬ ְ ‫שׁ ֙ר י ְהוָ ֣ה ֱאֹל ֶ֔ה יָך נ ֵ ֹ֥ת ן לְָך֖ ל ְִר‬ ֶ ‫אַר צ ְָ֔ך ֲא‬ ְ ‫בּ ְ֣תוְֹך‬ “[…] in the midst of your land, which YHWH your God is giving you to possess”. 27 According to M. Weinfeld, this theory would go back to Rashbam (acronym of Rabbi Samuel ben Meir, who lived in France between the eleventh and twelfth centuries A.D.) who states: “Why was Moses’ speech interrupted with this episode? Because he is about to expound the laws in which comes the law of refuge (chap. 19) which does not mention cities of refuge in Transjordan; therefore, he writes here that Moses set apart these cities. Hence no command about them was necessary” (quoted by WEINFELD, Deuteronomy, 232: the quotation appears to be a summary of the original text, which is rather longer, for which I refer to M. LOCKSHIN [ed.], Rashbam’s Commentary on Deuteronomy. An Annotated Translation [Brown Judaic Studies 340; Providence, RI 2004] 55–57). In fact, it is quite clear that the medieval Jewish commentator is limiting himself to explaining the reason for the interruption of the speech of Moses on the part of Deut 4,41–43 and so it is totally absent from his interpretation the idea of later redactional intervention designed to fill a thematic lacuna present in the text of Deut 19,1–13. On the other hand, this is something maintained by the old supporters of the documentary hypothesis from J. Wellhausen to A. Kuenen (cited by DRIVER, Deuteronomy, 78 who leans on their argument).

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125

section of the criminal laws of Deuteronomy (Deut 19,1–21,9) to which this verse functions as a general introduction. Nor are there particular problems in identifying Deut 19,13 as the conclusion of the pericope: the promise of future happiness bound up with the application of the law without any wavering (literally, “without compassion”, ‫ )ֹל֥ א ָת ֖חוֹס עֵינֶ ָֽך‬sounds a tone that is clearly conclusive.28 Moreover, Deut 19,14, which follows immediately on the conclusion of our pericope, introduces a theme which is new, that of encroachment, which has nothing to do with the theme of homicide which has been variously treated in vv. 1–13. Without prejudicing the unity of the pericope in its literary aspect, for which we have just argued, from the point of view of thematic structure, one can observe a threefold division of the subject: vv. 1–3 introduce it, recording the divine order to set up three (for the moment) cities as a haven for xcr-lk “every killer” (v. 3); vv. 4–10 specify, by means of exemplification, that this legal institution concerns cases of manslaughter and proceed to the identification of another three cities; finally, vv. 11–13 regulate the law concerning cases of murder.29 As correctly pointed out by A. Rofé, the multiple recourse to the semi-chiastic arrangement of the elements contained in the three parts confers clarity of exposition on the literary whole, something, moreover, which is not foreign to the style of Deuteronomy.30 1.2.3. The introduction of the legislation on the cities of refuge (Deut 19,1–3) The introductory part of the law opens with v. 1, which relates the theme of the total and radical elimination of the inhabitants of Canaan, the land which Israel is divinely summoned to occupy. This theme is bound by the text to another theme that is fundamental for the theology of the whole book, namely

                                                                                                               

28 The expression ‫ ֹל֥ א ָת ֖חוֹס עֵינֶ ָֽך‬returns in identical form in Deut 25,12: in that case, too, the words are used with a conclusive function. 29 Thus ROFÉ, “Cities of Refuge”, 210. Even if he does not schematise it in this way, DRIVER, Deuteronomy, 230–234 also shows that he has in mind a structure of the kind. For his part, D.L. Christensen suggests an interesting formal structure based on the thematicliterary correspondences of the various verses, identifying two chiastic structures which link vv. 1–7 and vv. 11–13. The problem is that it is not easy to understand what is the point of the remaining vv. 8–10 which cannot be ascribed to the literary scheme identified for the other two sections of the text and is, therefore, virtually ignored in the description of the structure of the pericope (cf. CHRISTENSEN, Deuteronomy, 419). That suggests that vv. 8–9 particularly represent a certain problem as we shall be able to see shortly in the analysis of the text. 30 For the details of each of the correspondences, cf. ROFÉ, “Cities of Refuge”, 211 (and the relevant reference to n. 13) who adds that the same phenomenon is observed in Deut 5,28–6,1; 11,32–12,1; Jer 2,23–3,1, and is, therefore, to be considered characteristic of the Deuteronomic literature.

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the entry into the land and its possession, a real Deuteronomic Leitmotiv 31. Among others, the same concept is taken up and emphasised also in v. 2 which – in enjoining on Israel the ‘separation’ (lydbt, “separate, set apart”) of three cities in Canaan – confirms that the possession of the land is not the fruit of a conquest on the part of Israel but is a gift which comes exclusively from YHWH.32 In further confirmation of the centrality of the subject, the idea of the land as a divine gift is reiterated also in v. 3: subdividing the entire region into three parts, the order which arranges the way leading to the cities includes, in fact, the typically Deuteronomic expression, “the land which YHWH your God is giving you to possess”,33 something which reveals the divine origin of Israel’s possession of the land of Canaan. The same order is glossed by a statement which explains the purpose of the order which YHWH has just imparted, clarifying that the specific aim of the “cities to be separated” consists in offering the possibility of refuge (hmv swnl hyhw) to every killer (xcr-lk). This is a very interesting element, especially considering what we have said several times in the section commenting on Num 35,9–34: the provision of Deut 19,3 begins by establishing in principle that access to the “cities of refuge” is permitted to every killer, as the presence of lk makes quite clear. On the other hand, it is important to reiterate that what this arrangement permits to the killer is simply access to the city of refuge which is not the same thing at all as immunity,34 as emerges clearly from with the following verse onwards. 1.2.4. Purpose and demarcation of the area of the validity of the law (Deut 19,4–10) As we have just mentioned, v. 4a explains clearly that the law which is going to be introduced records the precise conditions which will enable the killer who takes refuge in the city to save his life (‫שׁ ר־י ָ ֥נ וּס ָ ֖שׁ ָמּ ה ו ָ ָ֑ח י‬ ֶ ‫)הָר ֹ ֵ֔צ ַח ֲא‬, removing the area of possible ambiguity which could derive from a hasty

                                                                                                               

31 The first part of Deut 19,1 takes up Deut 12,29a verbatim. On the importance and the use of the Landnahmenformulierungen in the book of Deuteronomy, cf. D. MARKL, Gottes Volk im Deuteronomium (Beihefte zur Zeitschrift für Altorientalische und Biblische Rechtsgeschichte 18; Wiesbaden 2012) 31. Given the particular nature of both these themes (the elimination of the inhabitants of Canaan and the entry of Israel into the land to take possession of it) and their importance in the context of the theology of Deuteronomy, Rofé interprets the content of Deut 19,1 as a kind of seal set on the composition of this law concerning homicide by one whom he describes as the “major author of the Book of Deuteronomy” (ROFÉ, “Cities of Refuge”, 212). 32 The expression is taken up word for word in Deut 19,14; 21,1. 33 The employment of the root lxn in the hiphil to express the gift of the land to Israel by God returns in Deut 12,10; 19,3.14. 34 Cf. what was said about this in section 2.2.4. of the third chapter.

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interpretation of the syntagm xcr-lk in Deut 19,3. Verse 4b starts precisely with the specification of these conditions, affirming that immunity will be guaranteed to one who has killed his neighbour on two conditions only: that the act was committed unwittingly and that the killer did not hate the victim previously. The absence of intention which the law requires from an action with fatal consequences is expressed, therefore, by two factors which the law presents as concomitant: one of these (the lack of intention) is exclusively contextual to the act itself whereas the other (the absence of hatred) is prior to the homicide. The contextual element describes the typology of the action exactly, describing it as extraneous to any type of consciousness (t[d-ylbb) on the part of the one committing it at the time he commits it.35 The prior element, on the other hand, can be described as being of an circumstantial nature in that it is speaking of a sentiment – hatred, expressed by the participle of the verb anf – which, although (obviously) not ceasing at the moment of the crime, in itself is prior to the act. This is well explained by the double recourse to temporal adverbs of identical force such as lmtm and ~vlv.36 So then, according to the provision of Deut 19,4, which describes the purpose of the institution of the cities of refuge, the immunity of the killer within the city of refuge is guaranteed only in the case of the verification of a single specific case, unambiguously described by the text as manslaughter or unwitting homicide. The following verse (Deut 19,5) only confirms the principle just expressed by means of an example of a casuistical type. Presenting a very concrete and detailed case this explains beyond all doubt what the legislator intends by “unwitting homicide”. The example describes clearly what we could describe as an accident at work. It presents the case of someone who goes into the wood to cut wood. While getting ready to use the axe against the tree which he has to cut down, he accidentally kills his companion with the iron part of the tool which separates itself from the handle and strikes the unfortunate victim to death.

                                                                                                                35

On the difference between consciousness and unconsciousness in the performance of an action, I refer to what was said in this connection in the section of the comment on Num 35,11.15, in section 2.1.3. of the third chapter. 36 It seems to me important to observe that almost all the times the Hebrew Bible makes use of such an “adverbial doublet” they have in common the circumstance of being juridical norms relating to homicide: in fact, as well as in Deut 19,4 (and in 19,6 which takes up the previous quotation as an inclusion), the syntagm ~vlv lmtm appears in Ex 21,29 in the context of the already mentioned legislation relating to the goring ox (on this, I refer to what was said in section 2.2. of the second chapter); in Deut 4,42 which, as we have seen, anticipates (at least, as placed in the final text) the legislation of the cities of refuge in Deut 19,1–13; and in Josh 20,5, a parallel tradition relating to the cities of refuge. Only in Josh 3,4 is the syntagm utilised in a different context.

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That this is an unintentional case is clearly expressed by the coincidence in the presentation of this example of various concomitant factors which I am going to list so as then to analyse them individually. They are: the context of the accident; the specific end of the action that had fatal consequences; and the detailed description of the circumstances of the lethal act. Let us begin with the context of the accident. Judging from the legislator’s presentation, we have here a daily, perhaps even a routine, circumstance both for the one who finds himself committing the act and for the one who turns out to be the victim. In the description of the accident (“As when a man goes into the forest with his friend to cut wood”), there is nothing to foretell a tragic outcome. Nor are there elements such as could make us think of a situation created ad hoc: something which is usually the case in acts of voluntary homicide where, generally, the killer draws the victim with a certain type of trap which assists him in committing the crime. We pass on, then, to consider the specific end of the action that had fatal consequences. By means of an infinitive construct with clear final value,37 our text says explicitly that the action resulting in the death of one of the two men was originally intended quite otherwise: the expression #[h trkl, “to cut wood”, allows no doubt as to the motive with which the killer brandishes the axe. That implies that the killing of his companion did not enter in any way into his intentions but turned out to be an unfortunate accident. Finally, let us consider carefully the detailed description of the circumstances of the lethal act. The text is extremely thorough in describing the exact dynamics of the accident in these terms: “…and the iron [of the axe] slips off the wood [handle] and finds (acmw) his friend so that he dies…”. I put forward simply two elements which emerge from this description: the first is that, bizarre though it may sound, from a merely grammatical point of view, the true subject of the action is the iron of the axe, not the one who is brandishing it. Now, it is clear that, from a logical point of view, this object is per se inanimate and cannot, therefore, act motu proprio: nonetheless, I do not think that it is forced to speculate that the legislator has made use of this stratagem to emphasise still further the absence of any intention on the part of the killer. The second element of v. 5 which, in my view, it is important to underline is the verb with which the mortal blow is described. The text employs the root acm, the first and basic meaning of which is certainly “to find, as a result of seeking”, but which – as happens, moreover, in the translation of the verb

                                                                                                               

37 Concerning the use of the infinitive construct preceded by l with a final function, cf. KAUTZSCH, Gesenius’ Hebrew Grammar, § 114 f who states: “Infinitives with l. serve to express the most varied ideas of purpose or aim, and very commonly also to introduce the object of an action, or finally even to state motives or attendant circumstances”. Cf., also, JOÜON – MURAOKA, Grammar, § 124 l.

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into modern languages – also contains a certain amount of causality in its own semantic baggage.38 I hold that it is to this second nuance of the verb that the text has recourse in Deut 19,5 to express the action of the iron of the axe (!) which ‘finds’ a man and causes his death. In fact, if the legislator had wanted to express the intentionality of the act, he would have employed quite another verb, such as, for example, hkn which is employed not for nothing in Deut 19,11 to describe the case of voluntary homicide.39 Deut 19,5b takes up again in the form of an inclusion what v. 4a had introduced, confirming that the killer, who is an analogous situation to that just expressed in the casuistic example, will be able to enjoy the refuge guaranteed by the “separated cities” and save his life. Verse 6 contains a series of important details on which it will be appropriate to dwell. The first thing to be noted is the syntactic formulation of the entire statement, which opens with the conjunction -!P,. The grammar indicates that the use of this conjunction at the beginning of a phrase generally expresses a purpose which can be reduced to a double concept: fear or precaution.40 Since in our case we have a legal text, I think it probable that what it is intended to represent is a precaution and not simply a fear. This observation is extremely important if one considers that the statement introduced by -!P, comes immediately after the order to establish the cities of refuge and the description of their applicability to cases of unintentional homicide (vv. 2–5). With that in mind, the syntax of the text reminds us of the fact that the precaution which is moving the legislator in instituting the cities

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This is the opinion of S. Wagner: “Finden ist […] als auch Widerfahrnis einer absichtslosen Begegnung, eines zufälligen Auffindens oder Antreffens” (S. WAGNER, “acm”, Theologisches Wörterbuch zum Alten Testament [ed. G.J. BOTTERWECK – H. RINGGREN – H.-J. FABRY], IV [Stuttgart – Berlin – Köln 1984] 1044). 39 I repeat that the choice of the verb used to describe the action with fatal consequences is fundamental in establishing the intentionality or not of the act. In the context of the comment on Num 35,16–18, which clearly deals with intentional and voluntary homicide, we said that, in the sole case of the use of an iron tool (v. 16), there was no specification of the fact that the act was fatal because every violent use of an iron tool was intended as aimed at causing death; whereas, in the case of tools of stone (v. 17) or wood (v. 18), the legislator has to add the expression …b twmy rva, that is, “death-dealing” in order to specify that the use is aimed at killing. Now, here, in Deut 19,5, the question concerns an iron tool, the axe, which is potentially “death-dealing”: what makes the difference with regard to the case of voluntary homicide presented in Num 35,16 is precisely the verb used to describe the action. In fact, whereas, in Num 35,16, the killer uses the iron tool to strike (hkn) the victim, here it is said that the iron tool finds (acm) the victim, and the latter dies by accident. This is a substantial difference, therefore, expressed only by means of the verb which describes the action perpetrated with the tool. 40 Cf. KAUTZSCH, Gesenius’ Hebrew Grammar, § 152 v; JOÜON – MURAOKA, Grammar, § 168 g.

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of refuge is that of removing one who is involved in an unintentional homicide from the blind and irrational anger of the avenger of blood. So, then, the text brings to the centre of our attention the ~dh lag. He is someone on whom and on whose role we have dwelt at length in the previous chapter.41 Without repeating what has already been said on this topic, it is interesting to observe that Deut 19,6 insists on the emotional-passionate nature of the motive of the avenger of blood in seeking immediate reparation for the injury undergone by his own family with the killing of his relation. The expression wbbl ~xy-yk, “while his heart continues to burn”, expresses precisely the irrationality characteristic of one who acts on impulse and not on the basis of a fair and considered judgement.42 In this specific case, the avenger of blood is blinded by the anger which burns in his breast and is not restrained into reflecting on the nature of the act which caused the death of his own relation: he is moved to act simply by the thirst for vengeance so that he does not take at all into consideration that the misfortune which has fallen on him and his family could be the result of an accident and not a premeditated crime.43 Another of the elements present in Deut 19,6 attracts the keen attention of the commentators: this is the expression $rdh hbry-yk, “should the way be long”. With these words, the legislator continues to give an account of the reasons for and the importance of the law on the cities of refuge, this time explaining in a circumstantial way why, in Deut 19,3, he had declared the need to proceed to the subdivision of the land and the provision of ways leading to the cities of refuge. The expression of Deut 19,6 takes up almost literally the words of Deut 14,24: $rdh $mm hbry-yk.44 Placed in the centre of the regulation of the tithes which is laid out in Deut 14,22–29, these words introduce an exception to the usual procedure which is to serve those who find themselves too far from “the place where YHWH your God chooses to set his name”, the Deuteronomic circumlocution regularly employed to indicate the Jerusalem temple.45

                                                                                                                41

Cf. section 2.1.4. of the third chapter. For a biblical parallel, cf. Ps 39,4. It is interesting to note that this use of the verb ~mx is not considered symbolic, but is understood as a just as concrete use of the more common nuance which is employed to indicate the action of burning or burning oneself: “The vb. is also used to describe the actual manifestation of intense physical emotions, not symbolic”. Thus A. TOMASINO, “~mx”, The New International Dictionary of the Old Testament Theology and Exegesis (ed. W.A. VANGEMEREN), II (Grand Rapids, MI 1997) 176–177. 43 Cf. DRIVER, Deuteronomy, 232. 44 As can be appreciated, the single variant (insignificant as far as the sense of the expression is concerned) is constituted by the fact that Deut 14,24 has in addition the pronoun $mm because the discourse is in the second person. 45 Cf. ROFÉ, “Cities of Refuge”, 214–218. 42

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In the introductory notes to the comment on the traditions relating to the cities of refuge, we have already had the opportunity to say that the traditional opinion refers the origin of the legislation of Deut 19,1–13 to the developments – wholly typical of the book of Deuteronomy – of the ideology which focuses on the centralisation of the cult. Right from ancient times, in fact, the local sanctuaries offered refuge to one who was tainted with the crime of homicide without having intended it.46 This situation was sharply called into question by one of the cornerstones of the so-called “Josianic Reform”, that is, the abolition of the local sanctuaries with the aim of concentrating the cult in a single place “which YHWH has chosen” (cf. Deut 12,1–14). According to those who maintain this hypothesis, the legislation of Deut 19,1–13 would be precisely aimed at providing a remedy for the situation which had just been created as a result of the abolition of the local sanctuaries, and the proof of this theory would be found precisely in the expression of Deut 19,6 which we are analysing: $rdh hbry-yk. Indeed, in the mind of the legislator, the institution of a number of cities of refuge would have been the means of obviating the problem of the excessive distance of the killer from what remained the only place of refuge after the Josianic provision, that is the sanctuary of Jerusalem.47 If on the one hand, from a merely historical point of view, there is no lack of doubts concerning the soundness of the evidence for the so-called “Josianic Reform” and its effective achievement in the kingdom of Judah of the seventh century B.C., as I have been able to point out in another piece of work and on several occasions, 48 on the other hand it is undeniable that this ‘reform’ represented an ideological phenomenon which had a great impact on the theology of the book of Deuteronomy and on the entire deu-

                                                                                                               

46 Contrary to this hypothesis, cf. BARMASH, Homicide, 71–93, who does not hold that the cities of refuge were a functional expansion of the role previously covered by the sanctuaries. J. Stackert gives this a detailed and, on this specific question, convincing criticism: cf. STACKERT, “Why Does Deuteronomy Legislate Cities of Refuge?”, 23–29. 47 So, particularly, WELLHAUSEN, Prolegomena, 156–157; ID., Composition, 204–205. Variamente ripreso da E. MERTZ, Die Blutrache bei den Israeliten (Beiträge zur Wissenschaft vom Alten Testament 20; Leipzig 1916) 128–137; N.M. NICOLSKY, “Das Asylrecht in Israel”, Zeitschrift für Alttestamentliche Wissenschaft 48 (1930) 146–175; GREENBERG, “Biblical Conception”, 125–132; MCKEATING, “Development”, 46–68; AULD, “Cities of Refuge”, 26–40; DAVID, “Asylstädte”, 30–48; M. FISHBANE, “Biblical Colophons, Textual Criticism, and Legal Analogies”, The Catholic Biblical Quarterly 42 (1980) 438–449; J. MILGROM, “Sancta Contagion and Altar/City Asylum”, Congress Volume: Vienna 1980 (ed. J.A. EMERTON) (Vetus Testamentum – Supplements 32; Leiden 1981) 278–310; ROFÉ, “Joshua 20”, 131–147. 48 Cf. COCCO, Cattedra, 65–77; ID., “Il processo di centralizzazione delle istituzioni religiose e cultuali”, Ricerche Storico Bibliche 1 (2009) 25–36; ID., “La ‘riforma di Giosia’ e le alterne vicende del santuario di Betel”, Nova et Vetera. Miscellanea in onore di padre Tiziano Lorenzin (ed. L. FANIN) (Studi religiosi; Padova 2011) 121–129.

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teronomistic history. Thus – with firm reservations on the historical side – I do not find it hard to accept that the specification relating to the “length of the way” of Deut 19,6 could be understood as a stratagem used by the book of Deuteronomy to bring the legislation relating to the cities of refuge within the broad ideological (and propagandist) framework of the consequences of that centralisation of the cultic and religious institutions which the First Book of Kings assigns to Josiah. Among other things, that would offer an explanation why Deut 19,1–13 is the only one of the laws concerning the cities of refuge which refers to the “length of the way” as an important element.49 To understand the reference to the length of the way in relation to the “Reform of Josiah” would also allow for the possibility of an interpretation of the already proposed genetic relationship which links the tradition of Deut 19,1– 13 to Ex 21,13–14. As we have noted previously, these latter two verses of the book of Exodus seem detached from their immediate context (namely, Ex 21,12.15–17), whereas they display various affinities of character in form and content with Deut 19,5–6.11.50 The singular reference which Ex 21,13–14 makes to ~wqm – a place which YHWH will provide as a haven for one who has killed without a trap (hdc al) – as well as to yxbzm – the altar of YHWH whose protection will be denied, by contrast, to one who has killed intentionally51 – corroborates the hypothesis that Ex 21,13–14 could be the result of a redactional insertion later than the immediate context (21,12.15–17), as well as being ideologically (and formally) dependent on the Deuteronomic text. Our v. 6 concludes with an almost literal reference to what was already expressed in 19,4: reusing various key terms that have already been utilised, the text is intending to confirm the innocence of the manslayer (twm-jpvm !ya alw, “though he was not deserving of death”) through the repeated statement of the absence of prior hatred with regard to the victim. This is clearly indicated by the repetition in inclusive form of the expression ~vlv lmtm wl awh anf al yk, “since he had not hated him previously”. Similarly inclusive is the content of Deut 19,7 which concludes the first part of the legal arrangement by reiterating word for word the order for the ‘separation’ of the three cities – already expressed in Deut 19,2 – within an elegant chiastic construction which confers on the entire discourse of vv. 2–7 a sense of final completion.52

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Cf. ROFÉ, “Cities of Refuge”, 214. For the details, I refer to what was said in section 1.1. of this chapter. 51 The text of Ex 21,14 says literally: ‫ַל־ר ֵ ֖ע הוּ ְלה ְָרג֣ וֹ ְב ע ְָר ָ ֑מ ה‬ ֵ ‫“ וְכִ ֽי־י ָ ִז ֥ד אִ ֛ישׁ ע‬But if someone had premeditated the killing of his neighbour with evil intention…”. 52 I refer to what was indicated previously in the section on the demarcation of the pericope and, specifically, to the observations of ROFÉ, “Cities of Refuge”, 211. 50

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In the context of the identification of the internal structure of the pericope, we mentioned the fact that vv. 8–9 present some problems of interpretation. Already, D. Hoffmann held that these appear to be a sort of interpolation within an argument such as that of Deut 19,1–7.10 which is otherwise harmonious, in that it has a wealth of correspondences and internal references.53 His hypothesis is based in particular on the fact the reference to “not shedding innocent blood in the land which YHWH your God is giving you to possess” (Deut 19,10) would be easier to understand if it were followed immediately by the provision of Deut 19,1–754 which – according to what was stated in v. 3 – refers precisely to the “land which YHWH your God is giving you to possess”. In its present position, however, the wish that innocent blood not be shed (v. 10) follows v. 9 which, together with v. 8, explicitly refers to the extension of the borders of the Promised Land: according to Hoffmann, therefore, we would be in the presence of a situation different from that which the main structure of the law (vv. 1–7) is intending to describe. This position is adopted also by A. Rofé. At the beginning of his article, he presented a clear and linear structure with the division of the passage into the three sections which we are analysing. However, a little later, he modifies this structure, slightly rather than substantially, stating that “verses 8–9 exceed the bounds of this structure and revert to the setting aside of the cities which has already been treated”. Adopting Hoffmann’s argument exactly, Rofé intends to corroborate it with another type of argument: in practice, he holds that Deut 19,8–9 is foreign to its immediate context and considers it, therefore, as an addendum later than the rest of the passage. The function of this addendum would be that of adjusting the legislation of Deut 19,1–7.10–13 to the datum inferred from Num 35,14–15 which speaks of six cities and not three. In a late compositional phase, someone whom Rofé describes as “a later author of the D school” would have introduced vv. 8–9 with the base text (Deut 19,1–7.10– 13) with the aim of completing its information, harmonising it with the parallel legislation coming from the priestly framework as to the number of cities

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This is the view of D. HOFFMANN, Das Buch Deuteronomium. Übersetz und Erklärt. Erster Halbband: Deut. I–XXI,9 (Berlin 1913) 355: “Diese beiden vv. sind in Parenthese zu setzen, denn das folgende $pvy alw kann sich nicht auf v. 9, sondern nur auf v. 7 beziehen [These two verses are to be set in parenthesis, for the following $pvy alw cannot refer to v. 9 but only to v. 7]”. 54 In particular, the statement of Deut 19,10 would have to be linked with v. 6, which – recalling v. 4, as we have just seen – ratifies the innocence of the manslayer and prepares the way for the conclusion of v. 7 which reiterates the order to separate the three cities with the aim of guaranteeing the protection of the involuntary killer from the revenge of the avenger of blood. Thus v. 6 and v. 10 would share the preoccupation with avoiding the shedding of innocent blood (cf. HOFFMANN, Das Buch Deuteronomium, 355–357).

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to be established as places of refuge. Rofé’s view is that we would be faced with “the beginnings of halakhic exegesis attempting to reconcile the texts”.55 Although I acknowledge that Rofé’s argument could represent an immediate and complete solution to the possible tension caused by the formula “3+3” of Deut 19,1–13 with regard to a plain “6”, which would certainly have been more direct and less convoluted, it appears to me that the thesis on which this solution rests is not without its own difficulty. Let us start with the analysis of one of the main arguments, that is, the late nature of the formulation ‫ְהו֤ה ֱאֹל ֙ ֶה י ָ֙ך ֶאת־גּ ֻ ְ֣ב ל ְָ֔ך‬ ָ ‫ ְו ִאם־י ְַר ֞ ִח יב י‬which we find at the beginning of Deut 19,8. Rofé maintains that we have here an expression “characteristic of a later stratum in D which reconciles the discrepancies between the Deuteronomic laws and the other collections”. In support of this statement, he cites what he claims to be an analogous case: this is the legislation of Deut 12,13–28 containing the Deuteronomic law relating to the place of sacrifice. At the centre of this law – in Deut 12,20, to be precise – there is an expression which refers to the extension of the borders of the land promised by YHWH, exactly as in Deut 19,8. In themselves, the laws contained in Deut 12,13–19 constitute a clear violation of what is laid down in the priestly legislation of Lev 17,1–7 which prohibits any kind of slaughter of animals which is not intended as an offering, on pain of being cut off from the people. Among other things – an argument ad gravandum – the close of Lev 17,7 describes the law as a “law for ever, from generation to generation”. Rofé argues that Deut 12,20 is intended precisely to resolve this aporia, allowing it to be understood that the legislation of Deut 12,13–28 represents a kind of derogation from the priestly prescriptions following the enlarging of the boundaries of the land. Rofé understands the use of the theme of the enlarging of the borders in Deut 19,8 in the same way, that is, understood as resolving the discrepancy between the information in Deut 19,2.7 relating to the number of the cities to be ‘separated’ (three cities), harmonising with that recorded by the priestly tradition of Num 35,14–15 (six cities).56 If we were generous enough to leave on one side the most direct objection which derives from the fact that we have here a unicus testis (which, however, says something about the substance of the hypothesis), we could not omit from noticing that the two expressions which are associated are not completely identical. If one looks carefully, whereas Deut 12,20 introduces a discourse with the preposition yk, which, usually, confers on the expression a temporal

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ROFÉ, “Cities of Refuge”, 223. Cf. A. ROFÉ, Introduction to Deuteronomy (Jerusalem 1988) 20–21 (Hebrew).

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connotation, Deut 19,8 is introduced by ~a, which gives the construction a sense of possibility.57 As the grammarians make clear, it is true that sometimes the temporal and possible/hypothetical connotations tend to overlap in the meaning of a phrase, and the same happens in the use of the prepositions that accompany them:58 but is difficult to deny that, whereas the function of Deut 12,20 appears to be simply that of projecting the situation on to the future, describing a circumstance that is to happen, the realisation of the enlarging of the boundaries envisaged by Deut 19,8 is intrinsically bound up with and even conditioned by the observance of the precepts spoken of in the immediately following verse. Indeed, the text reads thus:59 8 But if YHWH your God enlarges your borders, as he has sworn to your fathers and gives you all the land which he promised to give to your fathers – 9 provided you observe all these commandments which I command you to keep today, loving YHWH your God and walking always in his ways – then you shall add three other cities to these three.

That being said, I would hesitate somewhat before affirming that Deut 12,20 and 19,8 – although almost wholly identical as to their lexical literary form – are performing the same semantic function within their respective pericopes. The other argument in Rofé’s proposal which turns out to be problematic – more so, perhaps, than the first – is that of the claimed dependence of Deut 19,8–9 on Num 35,14–15.60 The greatest difficulty which I observe in this assumption is given by the fact that it seems to be based on one datum alone: the text of Numbers speaks of six cities, ergo Deuteronomy must have corrected the base text by adding a further three. On close examination, this could risk being a circular argument because by reversing the point of view one can just as easily maintain that the reference to the six cities which appears in Num 35,14–15 is none other than a summary repetition of the “3+3” of Deut 19,1–13. For all these reasons, even if we concede that Deut 19,8–9 could be the result of a later redactional addition than 19,1–7.10–13, it appears to me difficult to prove without fear of contradiction that the origin of this expansion

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It appears clear to me that even the English rendering of v. 8 (“And when the Lord enlarges your territory…”: ROFÉ, “Cities of Refuge”, 223) tends to conflate the value of Deut 12,20 and 19,8 with the very translation of the two texts. 58 On the temporal value of yk, cf. KAUTZSCH, Gesenius’ Hebrew Grammar, § 164 d; JOÜON – MURAOKA, Grammar, § 166 o. On the possible, hypothetical value of ~a cf. KAUTZSCH, Gesenius’ Hebrew Grammar, § 159 l; JOÜON – MURAOKA, Grammar, § 167 g. 59 The following translation of Deut 19,8–9 is my own, but it’s very clorse to the RSV. 60 “Deut 19:8–9 should be seen as a secondary layer whose purpose is to adapt the cities of refuge law of D – 19:1–7, 10–13 – to a parallel law in another collection. Such a parallel law is Num 35:9–34: the Priestly law which commanded six cities of refuge” (ROFÉ, “Cities of Refuge”, 223).

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was the tradition recorded in Num 35,9–34: not least on account of the fact that, as we have asserted and demonstrated in the section of analysis on Num 35,14–15, this latter text seems rather less interested in clarifying the ‘physical’ places of refuge, as is suggested by the fact that it does not set out an exact list of them.61 Without necessarily having to leave the book of Deuteronomy, it seems to me plausible to maintain that Deut 19,8–9 is well suited to its immediate context and could, therefore, be considered as a thematic expansion of a theological character intended to reiterate a concept fundamental to the Deuteronomic and deuteronomistic theology: that of the direct link between the observing of the commandments and the realisation of the various promises which YHWH has made to his people.62 As though to say that the legislator is less concerned with “balancing the books” on the number of cities of refuge than with reiterating that the future prosperity of the people depends on its faithfulness to the covenant with YHWH. From this same perspective, one can also understand the statement of Deut 19,10 which, in fact, links the institution of the cities of refuge to the need to avoid the shedding of innocent blood “in the middle of the land which YHWH your God is giving you in possession”. In this case too, indeed, the observing of one commandment – given that, in the final analysis, the avoiding of the shedding of innocent blood refers to the commandment not to kill63 – is bound up in the text with the taking possession of the land which YHWH is giving his people as their heritage. 1.2.5. Regulation of the cases of murder (Deut 19,11–13) After the central section of the pericope (Dt 19,4–10) has broadly clarified the scope of the legislation on the cities of refuge and the necessary characteristics of those who can make use of them, the final verses of this legislative text – by way of contrast – provide the procedure to be adopted when it is a murderer, not a manslaughterer who resorts to the city of refuge. Verse 11 introduces the case of voluntary homicide with a formulation which corresponds substantially with that with which v. 4 introduced the case of unintentional homicide. If one compares the two verses, beside the repetition of the verb anf – essential for expressing the most typical kind of dislike,

                                                                                                                61

Something, however, which Josh 20,8 does, as we shall see. The theme of the observing of the commandments as a guarantee of a better future returns in Deut 4,1; 4,6; 6,17–18; 11,8; 11,22–24; 26,18; 28,9. The occurrences in italics are explicitly linked to the possession of the land; those in bold associate the observing of the precepts with the enlarging of the borders, precisely as in Deut 19,8–9. 63 The killing of someone who is innocent, in fact, falls clearly under that category of “illegal killing” linked to the commandment xcrt al of which we have spoken previously (cf. section 2.1.2. of the third chapter). 62

1. Comparison with thematically related texts

137

namely, hatred – one observes a certain novelty introduced by the not insignificant accumulation of similarly negative expressions: Deut 19,4b ‫ת־ר ֙ ֵע ה ֙וּ ִבּ ְבלִי־ ַ֔ד עַת וְה֛ וּא ֹלא־‬ ֵ ‫שׁ֙ר י ֶַכּ֤ה ֶא‬ ֶ ‫א‬ ‫ְשׁ ֹם׃‬ ֽ ‫שׁל‬ ִ ‫שׂ ֹנֵ ֥א ל֖ וֹ ִמ ְתּ ֥מ ֹל‬

Deut 19,11a ‫שׁ שׂ ֵֹנ֣א ל ְֵר ֵ֔ע הוּ ו ָ ְ֤א ַרב ל ֙וֹ ו ָ ְ֣ק ם‬ ֙ ‫וְכִ ֽי־י ִ ְה ֶי ֥ה ִאי‬ ‫ ָע ָ֔ל יו ְוהִכָּ ֥הוּ ֶ ֖נ פֶשׁ ו ֵ ָ֑מ ת‬ 

As emerges clearly from this overview, the hatred (expressed by the verb anf) – which in Deut 19,4b had a kind of omnicomprehensive value of the negative impulses – in Deut 19,11’s representation of the case of voluntary homicide is accompanied by setting ambushes (expressed by l bra) and by attacking (l[ ~wq)64 which help to lift any doubt concerning the intentionality of the act of the part of the one committing it. Deut 19,12 contains the legal arrangement proper: having ascertained that it is a case of voluntary homicide (v. 11), the law provides for the appearance on the scene of the “elders of the city”65 of the killer. In conformity with the role generally assigned to them by Deuteronomy,66 the action of the elders is represented in terms of a full judicial function. In fact, they have the task of “sending and fetching” their fellow-citizen in order to deliver him into the hands of the avenger of blood. The expression ‫ִירוֹ ְו ָל ְקח֥ וּ א ֹ֖תוֹ ִמ ָ ֑שּׁ ם‬ ֔ ‫ְשׁ לְח ֙וּ ז ִ ְק ֵנ֣י ע‬ ֽ ָ ‫ ו‬which opens v. 12 arouses a certain interest in that it lets it be understood that, in the legal conception which lies behind this law, it is territorial jurisdiction which overrides the personal. In other words, making use of categories which we have employed previously 67, we can claim that the provision of this law has as its ideal reference the jus soli rather than the jus personae. It is to be assumed, in fact, that also in the city in which the murderer had taken refuge there existed a group of elders who could judge and condemn the guilty party: although the

                                                                                                               

64 It is interesting to observe that the same expression is used by Gen 4,8 to describe the first homicide, that of Abel struck down by Cain: ‫אָח יו ַויַּה ְַרגֵ ֽהוּ‬ ֖ ִ ‫ ַו ָיּ ֥ ָק ם ַ ֛ק י ִן ֶאל־הֶ ֥ בֶל‬. 65 On the biblical institution of the elders, cf. J.L. MCKENZIE, “The Elders in the Old Testament”, Biblica 40 (1959) 522–540; J. BUCHHOLZ, Die Ältesten Israels im Deuteronomium (Göttinger theologische Arbeiten 36; Göttingen 1988) passim; J.L. SKA, “L’istituzione degli anziani nell’Antico Testamento”, Gli anziani nella Bibbia (ed. M. LORENZANI) (Studio Biblico Teologico Aquilano 14; L’Aquila 1995) 49–67; ID., Il libro sigillato e il libro aperto (Collana Biblica; Bologna 2005) 447–461; V. WAGNER, “Beobachtungen am Amt der Ältesten im alttestamentlichen Israel. 1. Teil: Der Ort der Ältesten in den Epochen der Geschichte und in der Gliederung der Gesellschaft”, Zeitschrift für Alttestamentliche Wissenschaft 114 (2002) 391–576; COCCO, Cattedra, 149–152. 66 Thus DRIVER, Deuteronomy, 233, who cites Deut 16,18 as a parallel case. 67 Cf. what was said in section 2.1.7. of the third chapter.

138

Chapter IV: “From Law to Law”. Understanding the Novelty of Num 35,9-34

execution of the legal process where he is concerned is deferred to the elders of his city of origin. That suggests, indeed, that belonging to a territory is considered more important than belonging to a particular social group. As we have anticipated, v. 12b completes the provision of what the elders are convened to do: after having recalled him to his own city, they must hand over the murderer to the avenger of blood. We have seen that this expression is seen by some as a kind of institutionalisation of the role of the ~dh lag, as if – in modern terms – he were an official of the judicial police charged by the magistrates to execute the sentence.68 Let us see what the letter of the text says: ‫ְונ ָ ְת ֣נוּ א ֹ֗תוֹ ְבּ ַי ֛ד גּ ֹאֵ ֥ל ה ָ ַ֖דּ ם וָמֵ ֽת‬ … and [the elders of his city] shall deliver him into the hands of the avenger of blood, and he will die.

As can be seen also from this rather literal translation of the passage, everything hinges on the sense of the verb which concludes the verse, namely, tmw. The presence of variants in the ancient versions certainly contributes in confirming the problematic nature of the understanding (and interpretation) of the case: in particular, the Samaritan Pentateuch proposes replacing the form tmw – which, just as it appears in the MT, is the third person plural of the converted qal perfect – with the causative passive of the same root, that is the hophal form, tmwhw.69 The Greek text is along the same lines, translating the verb tmw with ἀποθανεῖται:70 from the syntactic point of view, this verb is dependent on the main verb of the statement, ἀποστελοῦσιν, with the result that the action of “causing the murderer to die” has directly and explicitly the elders as its subject.71 Finally, the critical apparatus of the Biblia Hebraica Quinta indicates that the Targum Pseudo-Jonathan and the Syriac interpret the text in the same way.72 As we have anticipated, the choice for the translation of the verb involves consequences of a hermeneutical character: if one follows the reading of the MT, the death of the murderer at the hand of the ~dh lag could be understood

                                                                                                                68

Thus, for example, SULZBERGER, Ancient Hebrew Law, 53–54, 58; PHILLIPS, Ancient, 102–103. As we have seen, their position has been variously criticised (cf., especially, BARMASH, Homicide, 50–51). 69 Cf. KENNICOTT, Vetus Testamentum, I, 405; VON GALL, Pentateuch der Samaritaner, I, ad loc. 70 This is a future, middle-passive infinitive of the verb ἀποθνῄσκω. 71 For the Greek text, cf. J.W. WEVERS (ed.), Deuteronomium (Septuaginta. Vetus Testamentum Græcum auctoritate Societatis Litterarum Gottingensis editum 3.2; Göttingen 1977) ad loc. 72 For the details, I refer to C. MCCARTHY (ed.), ~yrbdh alh/Deuteronomy (Biblia Hebraica Quinta 5; Stuttgart 2004) ad loc. Cf., also, the related commentary on the critical apparatus (p. 107*).

1. Comparison with thematically related texts

139

as a possibility, even a rather probable one, which follows, as a sort of corollary, on the decision of the elders to entrust the guilty one to the hands of the avenger of blood. If, on the other hand, one follows the reading of the different versions which we have noticed, the killing of the murderer loses any kind of connotation of possibility, and falls under what is arranged by the elders who entrust its execution to the ~dh lag. If we have to choose between these two hypotheses, my view is that the MT’s tmw – together with the related interpretation just proposed – is to be preferred to the variants which we listed consecutively. This is due to what we have been able to say with regard to the role of the ~dh lag: this is a figure tolerated by the biblical legislation because part of an ancestral heritage,73 but certainly not institutionalised, as some scholars would like and as supposed basically by the variants to the MT which make the avenger of blood the executor of the death sentence promulgated by the elders. In addition to this argument of a conceptual nature, there is, next, one which belongs more strictly to the criteria proper to critica textus. If we compare the various readings, in fact, one observes that the variants alternative to the tmw of the MT tend to facilitate the understanding of the expression, linking the last verb directly to the other three in the statement which, not by chance, have the same subject (the elders). What we see here is probably an operation which is designed to facilitate the understanding of the verb, because, with the correction contributed by the variants to the MT, all the actions in v. 12 end up referring to the same subject (the elders) and the text thereby gains in fluency and intelligibility. In my opinion, therefore, the reading of the MT – tmw – is to be preferred to that of the other versions for two reasons: the first is summarised by the classic principle lectio difficilior, potior; the second derives from the fact that the MT reading is able to explain the origin of the variants and, so, is, presumably, older. The Deuteronomic institution of the cities of refuge for manslaughter concludes in Deut 19,13, the first part of which (v. 13a) quite explicitly glosses the provision contained in v. 12 which enjoins the people not to have any truck with mercy in their dealing with the murderer. The text of Deut 19,13a takes up literally what was expressed in Deut 7,16 with the sole variant of the pronominal suffix (in that case plural, because it refers to the ‘peoples’). If we put the two contexts together, it is interesting to observe that Deuteronomy reserves the same treatment – that is, the absence of any type of mercy – for the foreign peoples that YHWH is putting in the hands of Israel and for the murderer. Now, the context of the expression in Deut 7,16 is markedly

                                                                                                                73

Among other things, we have to admit that, if what we have maintained in our interpretation of the legislation of Num 35,9–34 as the superseding of blood vengeance is true, this toleration must have existed only up to a point.

140

Chapter IV: “From Law to Law”. Understanding the Novelty of Num 35,9-34

hostile to idolatry as is clear from the words which follow the phrase which 7,16 and 19,13 have in common: And you shall consume all the peoples whom YHWH your God will deliver to you; your eye shall not pity them (‫ֵיה ם‬ ֑ ֶ ‫ )ֹלא־ ָת ֥ח ֹס עֵ ֽינ ְָך֖ ֲעל‬neither shall you serve their gods, for that would be a snare to you.

Perhaps the interpretation is not unduly forced if one draws from this combination the hypothesis that the voluntary homicide referred to in Deut 19,13a is considered by the Deuteronomic legislator as equal to the sin of idolatry stigmatised by Deut 7,16. Moreover, from its very first pages,74 the Bible repeats on several occasions that human blood belongs to God who alone can dispose of it. Thus, whoever sheds the blood of his neighbour does not only commit a crime in dealing with his peer, but also – perhaps, it would be better to say, above all – against YHWH, the creator and therefore the very Lord of human life. Along the same lines is the last part of v. 13 which acts as conclusion for the entire law, reiterating that the shedding of innocent blood must be avoided at all costs if Israel wishes to be happy. Once again, therefore, there is a return to the concept of the observing of the commandments as the way to happiness, which had already been expressed in vv. 8–9 in their extending the prospect of the enlargement of the borders of the Promised Land as the divine response to the observance of the covenant by the people. 1.2.6. Summary conisderations on the legislation of Deut 19,1–13 From our analysis of the legislation which the book of Deuteronomy devotes to the institution of the cities of refuge (Deut 19,1–13), there emerge quite clearly the outlines of a law which has a very specific aim: regulating the management of cases of manslaughter with the object of withdrawing them from the exercise of that private justice which was traditionally incarnated in the figure of the ~dh lag. The legislative text pursues this objective by means of a shrewd combination of theological elements like the repeated summons to the observing of the precepts of the covenant as guarantee of a better future for Israel (vv. 8–9.13), with more specifically juridical elements, such as the detailed description of the case (directly in vv. 4–5 and in v. 11 by contrast) and the attribution of specific tasks

                                                                                                                74

Valid for all is Gen 9,5–6: “Indeed for your own lifeblood I will demand an accounting: from every animal I will demand it, and from a human being, each one for the blood of another, I will demand an accounting for human life. 6 Anyone who sheds the blood of a human being, by a human being shall that one’s blood be shed; for in the image of God have human beings been made”. In this connection, cf., also, what was said in section 2.3.2 of the third chapter.

1. Comparison with thematically related texts

141

to the elders who are invested by the law with a role which turns out to be decisive for the correct application of the provisions (v. 12). In the wake of what we have just said about the biblical legislation relating to homicide, we can maintain that the law of Deut 19,1–13 represents an advance compared to what was laid down by the Covenant Code which, in Ex 21,12, provided for the killing of one who was tainted with homicide, regardless of any assessment of the circumstances.75 The immediate result of this Deuteronomic law is to guarantee that one who kills his neighbour accidentally, without having any intention of doing so, can keep his life safe. Added to this practical conclusion is one of principle: this law, in fact, is intervening in something which was an established right of the family – even if one that had never been formally codified, namely, the exercise of blood vengeance in dealing with the murderer of a relation. With the law which is contained there, the provision of Deut 19,1–13 reiterates that the administration of justice cannot be reduced simply to something private but concerns all the people, especially in consideration of the theological implications which every act carries with it.76 In fact, in limiting – even if partially – the function of the ~dh lag, the “penal reform” of Deut 19,1–13 opens the way to that definitive superseding of private revenge which, according to my hypothesis, represents the distinctive element of Num 35,9–34. 1.3. The legislation on the cities of refuge in Josh 20,1–9 We have now looked at the three Pentateuchal traditions which deal with the cities of refuge – each in its own way, as we have seen. Next, we turn our attention to the corresponding legislation that we find in the book of Joshua. Among scholars, there is a rather established tendency to hold that Josh 20,1–9 – or at least part of it, as we shall shortly see – is a text that is thematically and literarily dependent on those which we have already discussed.77

                                                                                                                75

It is clear that this statement leans on my interpretation of the mishpat of Ex 21,12– 17: in affirming that Deut 19,1–13 is “correcting” Ex 21,12, by specifying what could be the attenuating circumstances nullifying its prescription, I am not intending to deny what was previously said about the dependence of Ex 21,13–14 on Deut 19,4–5.11. So as to avoid repeating what was said previously, I refer for the details of this question to section 1.1. of the present chapter. 76 I am referring specifically to the “shedding of innocent blood” which – although carried out by an individual – has consequences for the entire people in so far as the happiness of Israel is conditional in Deut 19,13 on the extirpation of this crime. 77 Thus M. NOTH, Das Buch Josua. 3 Auflage. Unveränderter Nachdruck der 2., verbesserten Auflage (Handbuch zum Alten Testament – Erste Reihe 7; Tübingen 1971) 123; DAVID, “Asylstädte”, 30–48; H. CAZELLES, “rev. Oudtestamentische Studiën, Deel IX, Leiden, 1951”, Vetus Testamentum 2 (1952) 379; e più di recente A. RUWE, “Das Zusammenwirken von ‘Gerichtsverhandlung’, ‘Blutrache’ und ‘Asyl’. Rechtsgeschicht-

142

Chapter IV: “From Law to Law”. Understanding the Novelty of Num 35,9-34

The basic argument for this hypothesis lies particularly in what is read in the final part of Josh 20,2 in which YHWH concludes the order for providing cities of refuge saying that this is something which he had already commanded the Israelites through Moses: ‫ֵיכ ם ְבּי ַד־מ ֶֹשֽׁה‬ ֶ ‫]…[ ֲא‬ ֖ ֶ ‫שׁר־ ִדּבַּ ְ֥ר ִתּי ֲאל‬

Consequently, according to the supporters of this hypothesis, it is logical that the text of Joshua must necessarily be later than – and is itself dependent on – the other three texts of the torah of Moses, that is, Ex 21,12–14, Deut 19,1– 13 and Num 35,9–34. 1.3.1. The differences between the Hebrew and the Greek texts of Josh 20,1–9 However, the argument just mentioned is beset by a not insignificant difficulty deriving from the history of the transmission of the text in question. In fact, from a very rapid comparison among the principal versions, it turns out that the Greek text of the Codex Vaticanus (LXXB) appears considerably shorter than that of the Masoretic Text (MT), seeing that it is docked of two whole verses and part of another. For easier awareness of this phenomenon and to facilitate scrutiny of the situation, we have prepared a synoptic table of the Hebrew and Greek text of Josh 20,1–9: Josh 20,1–9 (LXXB)

Josh 20,1–9 (MT) ‫ֵאמ ֹר׃‬ ֽ ‫ְהוֹשׁ ַע ל‬ ֖ ֻ ‫ ַוי ְ ַדבֵּ ֣ ר י ְה ֔ ָו ה ֶאל־י‬1 ‫ֵאמ ֹר ְתּ ֤נוּ ָל ֶכ ֙ם‬ ְ ִ ‫ ַדּבֵּ ֛ר ֶאל־בְּנֵ ֥י י‬2 ֑ ‫שׂ ָר ֵ ֖א ל ל‬ ‫ֵיכ ם‬ ֶ ‫ֶאת־ע ֵ ָ֣ר י ַה ִמּ ְק ָ֔ל ט ֲא‬ ֖ ֶ ‫שׁר־ ִדּבַּ ְ֥ר ִתּי ֲאל‬ ‫ְבּי ַד־מ ֶֹשֽׁה׃‬ ‫שׁג ָָג֖ה‬ ְ ‫שׁ ָמּ ֙ה רוֹ ֵ֔צ ַח ַמכֵּה־נֶ ֥פֶשׁ ִבּ‬ ֙ ָ ‫ ָל ֥נוּס‬3 ‫ִי־ד עַת ְו ָה ֤יוּ ָל ֶכ ֙ם ְל ִמ ְק ָ֔ל ט ִמגּ ֵ ֹ֖א ל הַדָּ ֽם׃‬ ֑ ָ ‫ִבּ ְבל‬

1

‫ל־אַח ת׀ ֵמ ֶהע ִ ָ֣ר ים ָה ֵ֗א לֶּה ְו ָע ַמ ֙ד‬ ‫ ְו ֞נ ָס ֶא‬4 ַ֣ ‫֚ ֶפּ ַתח ַ ֣שׁ עַר ָה ִ֔ע יר ְו ִדבֶּ ֛ר בְּאָז ְנֵ ֛י ז ִ ְקנֵ ֥י־הָעִ ֽיר‬ ‫יר ֙ה‬ ָ ‫ה ִ ַ֖ה יא ֶאת־ ְדּ ָב ָ ֑ר יו וְאָ ְס ֙פוּ א ֹ֤תוֹ ָה ֙ ִע‬ ‫ֲאלֵי ֶ֔ה ם ְונָ ְתנוּ־ל֥ וֹ ָמ ֖קוֹם ְוי ַ ָ֥שׁ ב עִמָּ ֽם׃‬

4

καὶ ἐλάλησεν κύριος τῷ Ἰησοῖ λέγων λάλησον τοῖς υ ἱοῖς Ισραηλ λ έγων δότε τὰς πόλεις τῶν φυγαδευτηρίων ἃς εἶπα πρὸς ὑµᾶς διὰ Μωυσῆ 3 φυγαδευτήριον τ ῷ φονευτῇ τῷ πατάξαντι ψυχὴν ἀκουσίως καὶ ἔσονται ὑµῖν αἱ πόλεις φυγαδευτήριον καὶ οὐκ ἀποθανεῖται ὁ φονευτὴς ὑπὸ τοῦ ἀγχιστεύοντος τ ὸ αἷµα ἕως ἂν καταστῇ ἐναντίον τ ῆς συναγωγῆς ε ἰς κρίσιν 2

                                                                                                                liche Erwägungen zu den todesrechtsrelevanten Asylbestimmungen im Hexateuch”, Zeitschrift für Altorientalische und Biblische Rechtsgeschichte 6 (2000) 190–221.

1. Comparison with thematically related texts

‫ ְו ִכ֙י י ְִר ֜דּ ֹף גּ ֵ ֹ֤א ל ַה ָדּ ֙ם אַ ֽח ֲָ֔ר יו ְוֹלֽא־י ַ ְס ִגּ֥רוּ‬5 ‫ֶאת־הָר ֵ ֹ֖צ ַח ְבּי ָ֑דוֹ ִכּ֤י ִב ְבלִי־ ַ ֙ד ַע ֙ת ה ִָכּ֣ה ֶאת־‬ ‫שׁוֹם׃‬ ֽ ‫שׁ ְל‬ ִ ‫ֵר ֵ֔ע הוּ ְוֹלֽא־שׂ ֹנֵ ֥א ה֛ וּא ל֖ וֹ ִמ ְתּ ֥מוֹל‬ ‫ ְוי ַ ָ֣שׁ ב׀ בּ ִ ָ֣ע יר ַה ִ֗ה יא עַד־ ָע ְמ ֞דוֹ ִלפ ְֵנ֤י‬6 ‫שׁ ָ֔פּ ט עַד־מוֹ ֙ת הַכּ ֵ ֹ֣ה ן ַהגּ ָ֔דוֹל‬ ְ ‫הָ ֽ ֵע ָד ֙ה ַל ִמּ‬ ‫ֲא ֶ ֥שׁ ר י ִ ְה ֶי֖ה ַבּיּ ִ ָ֣מ ים ה ֵ ָ֑ה ם ָ ֣א ז׀ י ָ֣שׁוּב הָרוֹ ֵ֗צ ַח‬ ‫שׁר־‬ ֶ ‫ֵיתוֹ ֶאל־ה ִ ָ֖ע יר ֲא‬ ֔ ‫וּב א ֶאל־עִיר ֙וֹ ְו ֶאל־בּ‬ ָ֤ ‫נָ ֥ס ִמ ָשּֽׁם׃‬ ‫ת־ק ֶד שׁ ַבּגָּלִיל֙ בּ ַ ְ֣ה ר נַ ְפ ָתּ ִ֔ל י‬ ֤ ֶ ‫ ַויּ ַ ְק ִ֜דּ שׁוּ ֶא‬7 ‫אַרבַּ ֛ע‬ ְ ‫שׁ ֶ ֖כ ם בּ ַ ְ֣ה ר ֶאפ ָ ְ֑ר י ִם ְו ֶאת־ ִק ְר ַי ֥ת‬ ְ ‫ְו ֶאת־‬ ‫ְהוּדֽה׃‬ ָ ‫ִה֥יא ֶחב ְ֖רוֹן בְּהַ ֥ר י‬ ‫ וּ ֵמ ֵ֜ע בֶר ְלי ְַר ֵ ֤דּ ן י ְִריח ֙וֹ ִמז ְָ֔ר חָה נָ ְת ֞נוּ ֶאת־‬8 ‫אוּב ן ְו ֶאת־‬ ֑ ֵ ‫ישׁ ֹר ִמ ַמּ ֵ ֣טּ ה ְר‬ ֖ ‫בֶּ ֧ צֶר ַבּ ִמּ ְדבָּ ֛ר ַבּ ִמּ‬ (‫אמ ֹת ַבּגִּ ְל ָע ֙ד ִמ ַמּטֵּה־ ָ֔ג ד ְו ֶאת־)גָּלוֹן‬ ֤ ‫ָר‬ ‫ָשׁ ן ִמ ַמּ ֵ ֥טּ ה ְמנ ֶַשּֽׁה׃‬ ֖ ָ ‫]גּוֹלָ ֥ן[ ַבּבּ‬ ‫ ֵ ֣א לֶּה הָי ֩וּ ע ֵָר֙י ַה ֽמּוּ ָע ָ֜ד ה ל ְ֣כ ֹל׀ בּ ֵ ְ֣ני‬9 ‫שׂ ָר ֵ֗א ל ְו ַלגֵּ ֙ר ה ַָגּ֣ר בְּתוֹ ָ֔כ ם ָל ֣נוּס ָ֔שׁ ָמּה כָּל־‬ ְ ִ‫י‬ ‫שׁג ָָג֑ה וְֹל֣ א י ָ֗מוּת ְבּי ַ ֙ד גּ ֵ ֹ֣א ל‬ ְ ‫ֵה־נ פֶשׁ ִבּ‬ ֖ ֶ ‫ַמכּ‬ ‫ַה ָ֔דּ ם עַד־ ָע ְמ ֖דוֹ ִלפְנֵ ֥י ָהע ֵָדֽה׃‬

143

5

6

7

καὶ διέστειλεν τὴν Καδης ἐν τῇ Γαλιλαίᾳ ἐν τῷ ὄρει τῷ Νεφθαλι καὶ Συχεµ ἐν τῷ ὄρει τῷ Εφραιµ καὶ τὴν πόλιν Αρβοκ αὕτη ἐστὶν Χεβρων ἐν τῷ ὄρει τῷ Ιουδα 8 καὶ ἐν τῷ πέραν τοῦ Ιορδάνου ἔδωκεν Βοσορ ἐν τῇ ἐρήµῳ ἐν τῷ πεδίῳ ἀπὸ τῆς φυλῆς Ρουβην καὶ Αρηµωθ ἐν τῇ Γαλααδ ἐκ τῆς φυλῆς Γαδ καὶ τὴν Γαυλων ἐν τῇ Βασανίτιδι ἐκ τῆς φυλῆς Μανασση 9 αὗται αἱ πόλεις αἱ ἐπίκλητοι τοῖς υἱοῖς Ισραηλ καὶ τῷ προσηλύτῳ τῷ προσκειµένῳ ἐν αὐτοῖς καταφυγεῖν ἐκεῖ παντὶ παίοντι ψυχὴν ἀκουσίως ἵνα µὴ ἀποθάνῃ ἐν χειρὶ τοῦ ἀγχιστεύοντος τὸ αἷµα ἕως ἂν καταστῇ ἔναντι τῆς συναγωγῆς εἰς κρίσιν

  The most evident discrepancy arising from the synoptic comparison of the two versions of our pericope is undoubtedly constituted by the total absence from the Greek text of LXXB of vv. 4–5 which are present in the MT. In this connection, the question which occurs is rather elementary, at least in its formulation: has the Hebrew version added a part of the text or has the Greek taken it away? Classically, as we have seen in some passages of the present study, it tends to be held that the corrections made to the biblical text go in the direction of the addition of literary material rather than its subtraction.78 That is due, substantially, to two reasons which are attributed to the translators or redactors: one is conscious by nature, the other, by contrast, unconscious.

                                                                                                               

78 In the present debate, there are not lacking voices which raise the question of the validity of this postulate: cf. the monograph of J. PAKKALA, God’s Words Omitted. Omissions in the Transmission of the Hebrew Bible (Forschungen zur Religion und Literatur des Alten und Neuen Testament 251; Göttingen – Bristol, CT 2013) who discusses the omission as a form of redactional intervention.

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The first reason lies in the, to some degree, sacral conception which is had of the biblical text: on the basis of such a conception, the letter of the text could not be lightly docked of a part more or less significant in that it was held to contain divine revelation.79 The second explanation is based on a fairly fundamental psychological tendency which, usually, presses the translator/redactor to clarify a textual passage held to be complicated by means of adding explanations or further details which help it to be better understood. It is on these kinds of observations that the well-known principle of lectio brevior, potior rests: thus, generally, one is persuaded to maintain that the shorter text is the older one. In our particular case, therefore, drawing on the principles just described, it would be the version of LXXB that preserves the original text of Joshua 20, in so far as it reproduces the translation of a Hebrew Vorlage which is shorter and so older then that recorded by the MT. However, in addition to the difference represented by the absence in LXXB of vv. 4–5 – macroscopic, and so in itself clearer – there is another no less important one which concerns the second part of Josh 20,3. In the version of LXXB of this verse, in fact, various elements can be identified that are additional to the corresponding verse of the MT: these are the syntagms αἱ πόλεις and καὶ οὐκ ἀποθανεῖται ὁ φονευτὴς which are totally absent from the Hebrew text,80 and part of v. 6 MT which, in the version LXXB, is relocated as a comment on v. 3.81 In the opinion of scholars, the differences just mentioned which are evident in the two principal versions of Josh 20,3b, turn out to have a weight that is highly significant in the reconstruction of the redactional history of the entire pericope of Joshua 20. We shall seek to study the phenomenon starting off from the analysis of the two opposing positions: that of A. Rofé, who maintains that the original text of Joshua 20 is that preserved in the Greek translation of LXXB;82 and that of L. Schmidt who opts, instead, for the priority of a Hebrew version which would be partly recoverable in the MT of Josh 20,1–9.83

                                                                                                                79

Cf. SKA, Introduction, 169–170; C. LEVIN, The Old Testament: A Brief Introduction (Princeton, NJ 2005) 26–27. 80 This syntagm is shown in bold in our table. 81 In our synoptic table, we have shown this part in italics (Greek) and underlined (Hebrew). 82 Cf. ROFÉ, “Joshua 20”, 131–147. 83 Cf. SCHMIDT, “Leviten- und Asylstädte”, 103–121.

1. Comparison with thematically related texts

145

1.3.2. The proposal of A. Rofé: the Greek text of LXXB is the archetype of Josh 20 In his structured analysis of Joshua 20, A. Rofé begins by subjecting the text84 to a thematic study, reconstructing the dynamics of the actions and of the various pieces of information which are found in the pericope. Although he states, at the beginning of the thematic analysis, that the content of the section seems quite clear and the passages appear at first sight fluent, Rofé indicates at least two aspects which he holds to be problematic in relation to what could be described as the “logic of the text”: the first concerns the authorship of the execution of the divine order in Josh 20,2; the second regards “the flow of verses 4–6”.85 In analysing the actions of Joshua – who, as usual, is presented in the eponymous book as one who carries out what YHWH commands to the letter – Rofé notes the first inconsistency between the version of LXXB and that of the MT. The Greek text, employing verbs in the singular,86 actually attributes the designating of the cities of refuge to Joshua; in describing the same actions, however, the Hebrew text makes use of verbal forms in the plural,87 leaving quite uncertain – thus Rofé – the execution of the selection of the city of refuge. This discrepancy is interpreted as a significant indication of the fact that the two versions of Joshua 20 follow Pentateuchal traditions relating to the cities of refuge, in this case specific ones but ones differing between themselves. In particular, the Greek version of LXXB, given that it attributes the action to Joshua alone, would be the implementation of the legislation of Num 35,9–34 in which the designation of the cities of refuge is foreseen after the crossing of the Jordan and so after the death of Moses.88 On the other hand, the Hebrew version of the MT – as a result of the choice of verbal forms less definite than those in the Greek version – could be a reflection of what is arranged by the laws of Deut 4,41–43 and 19,1–13 in which it is Moses himself who is to designate at least some of the cities of refuge; with equal probability, however, the Hebrew text could be referring to Joshua alone, associating his personal action with the body of the Israelites

                                                                                                                84

As far as can be seen, in this first stage of the enquiry, Rofé does not specify clearly to which of the two versions of Joshua 20 he is referring: the title of the paragraph says simply “Analysis of Joshua 20”; the thematic summary which opens the textual analysis seems to refer to the MT, whereas, later – in his examination of the difficulties presented by the reconstruction of the logic of the text – the author makes explicit reference now to the LXXB, now to the MT. Cf. ROFÉ, “Joshua 20”, 134–136. 85 ROFÉ, “Joshua 20”, 135. 86 Specifically, we read in Josh 20,7–8 of LXXB: καὶ διέστειλεν […] καὶ ἐν τῷ πέραν τοῦ Ιορδάνου ἔδωκεν […] Both verbal forms are in the singular, and the understood subject is clearly Joshua to whom the whole divine speech is addressed according to Josh 20,1. 87 These are the verbal forms used in Josh 20,7–8 of the MT: ‫נ ָ ְת ֞נוּ ]…[ ַויּ ַ ְק ִ֜דּ שׁו‬. 88 Cf. Num 35,10.13–14.

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by means of the use of the plural verbs. In this case, one would have to hold that the Masoretic Text is following the legislative tradition about the cities of refuge which is preserved in the book of Numbers.89 Rofé does not seem to wish to resolve – at least for the moment90 – the question relating to this first observed inconsistency between the two principal versions of Joshua 20. In his article, he passes, instead, to concerning himself with what he describes as “a more serious difficulty” (p. 135), that is, the problem regarding the sequence of vv. 4–6. In this case, the main problem is constituted by the expression ‫שׁ ָ֔פּ ט‬ ְ ‫“ עַד־ ָע ְמ ֞דוֹ ִלפ ְֵנ֤י הָ ֽ ֵע ָד ֙ה ַל ִמּ‬until he stands before the assembly for judgment”, which, enshrined right in the middle of v. 6, undoubtedly creates not a few difficulties in understanding the sequence of actions described by vv. 4–6. We reproduce a translation of the entire passage to display the phenomenon more clearly: 4 And he shall flee to one of these cities, and shall stand at the entrance of the gate of the city and state his case in the hearing of the elders of that city; and they shall take him into the city to them and give him a place, so that he may dwell among them. 5 Now if the avenger of blood pursues him, then they shall not deliver the manslayer into his hand, because he struck his neighbour without premeditation and did not hate him beforehand. 6 And he shall dwell in that city until he stands before the assembly for judgment, until the death of the one who is high priest in those days. Then the manslayer shall return to his own city and to his own house, to the city from which he fled.

The arrangement contained in what Rofé identifies as “v. 6a2” (which I have displayed in a box) establishes that the killer stays in the city of refuge up till the moment in which he can appear before the assembly for judgement: it is, therefore a law which is describing a very exact span of time and which places an equally definite limit to it. On the basis of such an arrangement, one is bound to hold that the residence in the city of refuge constitutes a situation that is interim and provisional, aimed at guaranteeing the safety and protection of the accused until the time of the proper trial. However, this arrangement in v. 6a2 clashes irremediably with what was provided in the previous v. 4 which lays down that justice take place prior to the entrance of the killer into the city of refuge (“at the entrance of the gate of the city”) and is required of the elders of the city to whom it properly belongs to establish whether the accused is a murderer or a manslayer.

                                                                                                                89

Rofé concludes thus: “The Masoretic Text is indeterminate […] which could be taken to imply that the action was half Joshua’s (v. 7) and half Moses’ (v. 8). The verse as it appears in the Masoretic Text is amenable to the prescription of either Numbers or Deuteronomy” (ROFÉ, “Joshua 20”, 135). 90 In fact he does it in what follows, opting clearly for the deuteronomistic nature of Josh 20,7–8 in the MT: cf. ROFÉ, “Joshua 20”, 143.

1. Comparison with thematically related texts

147

However, there is no lack of those who try to rectify the aporia by stating that the task entrusted to the elders and contained in v. 4 should be understood as the carrying out of a sort of preliminary enquiry whereas v. 6a2 is introducing the judgement proper, required, ultimately, of the assembly.91 However, as Rofé rightly states, even if one accepted this proposal to harmonise v. 4 with v. 6a2, there would remain the serious obstacle constituted by the content of v. 5. As we have seen, at the conclusion of this verse, it is clearly stated that the one who has been admitted into the city of refuge is a manslayer: “[…] because he struck his neighbour without premeditation and did not hate him beforehand”. Such a statement can only refer to and be based on a judgement of the accused that is considered definitive: it must be the case, therefore, that v. 5 considers as conclusive and settled the judgment of the elders at the gate of the city spoken of in v. 4. All that considered, the reference made in v. 6a2 to a further judgement of the assembly which follows that of the elders turns out to be completely incongruous and irreconcilable with the immediate context. The problems caused by the presence of v. 6a2 do not concern only the previous vv. 4–5, but extend themselves within v. 6 itself: in fact, the third section of the verse (what Rofé marks as v. 6a3) introduces a further temporal clause by means of a new use of the preposition d[, precisely as happened in the previous statement. This clause provides that the killer remain in the city “until the death of the one who is high priest in those days”. Rofé notes that – by contrast with that of v. 6a2 – this second temporal clause marries well with the content of vv. 4–5: the killer, declared a manslayer by the elders at the gate of the city (v. 4), will enjoy the protection of the city of refuge from the hands of the avenger of blood (v. 5) until the death of the high priest (v. 6a3): then he can return to his own property, in his own area (v. 6b). It is also clear from a superficial glance that the material in vv. 4–6 would not attract attention if it were not for the insertion of v. 6a2. The latter introduces the trial before the assembly and finishes up with putting back up for debate the judgement of the killer even though, from the letter of the text, this appeared to have been dealt with by the previous verses. Rofé interprets this tension within the passage as the clear signal of a literary conflation. We would, therefore, be faced with a text that is the result of the work of two different authors/redactors: one of these holds that the judgement on the case belongs to the elders of the city and is to be carried out before the reception of the killer into the city (to this author are ascribed vv. 4–5.6a1.a3); the other, on the other hand, holds that the last word on the guilt or not of the accused belongs to the judgement of the assembly (v. 6a2) 92.

                                                                                                                91

So, for example, H.W. HERTZBERG, Josua, Richter, Ruth (Das Alte Testament deutsch 9; Göttingen 1953) 115, and other authors cited in ROFÉ, “Joshua 20”, 135 n. 10. 92 ROFÉ, “Joshua 20”, 136.

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Drawing on this information, Rofé dedicates the next passage of his analysis to the attribution of the individual verses of Joshua 20 to one of the two presumed authors, taking as his starting point that they refer to the two great Pentateuchal traditions on the cities of refuge: the priestly tradition (P) of Num 35,9–34 and the deuteronomistic one (D) of Deut 4,41–43 and 19,1– 13 93. The conclusion of this work of criticism of the sources identifies in Josh 20,1–3.7–9 the mark of P, while, in vv. 4–5, it finds a hand of the nature of D. As for v. 6, Rofé states that the situation is complex for the reasons indicated previously: nonetheless, he assigns v. 6a2 to P, while he attributes the rest of the verse to D 94. On the basis of this critical study of the text, Rofé affirms that the “ground story” of the legislative text of Joshua 20 is of a priestly nature while the Deuteronomistic elements have the form of an addition to the extent that – by contrast with what happens for the material referred to P – they are not able to constitute an independent account, nor do they give the impression of having been lifted as a whole from an already existing account. They are to be interpreted, therefore, as complementary additions aimed at clarifying the question about the authority designated for the admission into the city of refuge of the one accused of homicide. Rofé claims to be able to corroborate his own interpretation fo the textual history of Joshua 20 with the argument relating to the difference between the two principal versions. Summarising this thesis, we can say that, according to our author, the Greek text of LXXB is a substantial record of the original version of the legislation of Joshua 20 on the cities of refuge: legislation inspired by the priestly legislation of Num 35,9–34 of which it becomes a kind of implementation. Upon this “P layer” of Joshua 20, preserved as a whole in LXXB, there would have been the subsequent insertion of redaction of a deuteronomistic stamp, aimed at a final completion of the biblical law on the cities of refuge. To this “D redaction” would be ascribed vv. 4–5 and a great part of v. 6 which, according to Rofé, do not appear in the Greek text simply because they do not form part of the Vorlage of LXXB. However, the argument produced in support of this statement – which turns out to be decisive for establishing which of the two versions could be considered the archetype of Joshua 20 – does not seem wholly self–evident. Speaking of the absence of vv. 4–5 and part of v. 6 from the Greek text, Rofé asserts that “it would be illogical to say that these verses were left out for exegetical-harmonistic reasons, that is, in order to avoid the contradiction in

                                                                                                               

93 For the details of the attribution of the verses to the two authors, cf. ROFÉ, “Joshua 20”, 136–140. 94 Although assigning this part of v. 6 to an author close to the deuteronomistic school, Rofé specifies that “[D] is aware of P concepts, such as the date of the death of the high priest being a determining factor” (ROFÉ, “Joshua 20”, 140).

1. Comparison with thematically related texts

149

verses 4–6 noted above”; and he adds that, if it were a question of the voluntary omission of the Greek translator, it would have been enough to have expunged from the text the v. 6a2 which we have cited several times and which, as we have seen, is the only element which creates tension in the logical flow of the text.95 At a closer look, however, if one reverses the argument of the “logic of the text” employed by Rofé to prove the priority of the Greek version, one can arrive at the opposite result. One of the guiding principles of critica textus, in fact, lays down that an archetype can be considered such to the extent that it is able to explain the origin of a variant: if we draw on this principle and maintain that the MT version of Joshua 20 is a variant of the original preserved in LXXB, on what logical basis could we explain the addition of vv. 4– 5.6* in the Hebrew text? We should have to suppose the total incompetence of the late redactor who would have added the literary material to the original text without bothering about the final effect produced by the conflation on the passage as a whole. Certainly, the addition of the verses does not facilitate the understanding of the supposed original text; on the contrary, it complicates it, against all logic.96 Nor, moreover, does Rofé’s explanation in justification of the greater length of Josh 20,3b in the LXXB compared with its counterpart in the MT seem to be altogether without objection. He says: “[…] The rest of verse 3 in the Septuagint […] suggests that its Vorlage was longer than the Masoretic Text”. In fact, rather than an explanation, this statement sounds more like a postulate, assumed rather than demonstrated. Moreover, the following phrase, which, in theory, should have supported the statement just formulated, has more the flavour of a further petitio principii than of a proof: “Apparently the Deuteronomistic author of verses 4–6 deleted the original end of verse 3, replacing it with his own detailed description in verse 5”.97 Among other things, if we accepted Rofé’s interpretation, we would find ourselves needing once more to postulate the total incompetence of the redactor (deuteronomistic according to Rofé’s hypothesis) who has laid hands on the original text, cutting a part of v. 3b from its place in order to relocate it in a context in which it jars heavily: if we look carefully, in fact, it is clear that the close of Josh 20,3b in the Greek version of LXXB corresponds to the famous v. 6a2 of the MT which creates such a great problem for the flow of verses 4–6. Again, on account of the principle on the basis of which an arche-

                                                                                                                95

ROFÉ, “Joshua 20”, 142. In this connection, it would also be worthwhile to recall the principle of the lectio difficilior, potior: usually, a variant tends to add, not in order to complicate but to facilitate the understanding of a text considered to be complicated. Thus, the more difficult text is the older one. 97 ROFÉ, “Joshua 20”, 142. 96

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type to be considered such has to be able to explain the origin of the variant, we ask ourselves: on what logical basis would the redactor to whom we owe the present version of the MT have damaged v. 3b of a section that is thematically essential and consistent with its immediate context, in order to transplant it into an inappropriate and mismatched context such as that of v. 6a? 1.3.3. The proposal of L. Schmidt: the Grundbestand of the Masoretic Text is the archetype of Josh 20 The considerations just developed in relation to Josh 20,3b and to the discrepancies which show up between the two main versions in this section of the text allows us, now, to introduce the proposal of L. Schmidt into the analysis. He actually interprets the differences which are observed in v. 3b as one of the arguments on which to base the claim that the Greek version of LXXB of Josh 20,1–9 is secondary to the Hebrew version of the.98 In his argument, Schmidt starts from hypothesising the existence of two redactional layers of Josh 20,1–9, maintaining that this pericope – originally conceived as a Deuteronomistic implementation of what was already arranged in Deut 19,1–13 – was to be subject, in a second phase, to further elaboration by the addition of elements directly originating from the legislation on the cities of refuge of Num 35,9–15.99 The litmus test, the main proof of this argument, is represented by the text of Josh 20,3b which, in the version of LXXB, not only agrees fully with what was arranged by Num 35,9–15 from the point of view of content, but which reproduces various passages from it word for word. In particular, Schmidt notes that v. 3b of LXXB takes up almost verbatim the content of Num 35,12, discounting tiny variations which are revealed chiefly in the word order. The correspondence between the two texts is such – continues Schmidt – that one could be led to conclude that the entire pericope of Josh 20 is none other than a kind of implementation of what was already laid down by Num 35,9–15. Along the same line of thought, vv. 4–6* (present in the MT and missing from LXXB, as we have seen) could be interpreted as a later redactional addition of a deuteronomistic stamp aimed at incorporating into the legislation about the cities of refuge of Josh 20,1–9 a reference to the elders who are spoken of precisely in Deut 19,12.100

                                                                                                                98

Cf. SCHMIDT, “Leviten- und Asylstädte”, 105–109. As I have shown previously, L. Schmidt holds that Num 35,9–15 represents the Grundbestand of the legislation of the book of Numbers on the cities of refuge, subsequently enlarged by the addition of material contained in Num 35,20–34. For the details, I refer to section 2.1.8. of the third chapter. 100 Thus (even if each has his own position and arguments): DAVID, “Asylstädte”, 45– 48; L. DELEKAT, Asylie und Schutzorakel am Zionheiligtum. Eine Untersuchung zu den privaten Feindpsalmen. Mit zwei Exkursen (Leiden 1967) 293–294; ROFÉ, “Joshua 20”, 99

1. Comparison with thematically related texts

151

However, L. Schmidt observes that such a reconstruction of the relationships of dependence between the Greek version of LXXB and the Hebrew one of the MT of the text of Josh 20,1–9 is not so solid in the end as could appear at first glance. His first objection actually concerns the difference between the Hebrew version of Josh 20,3b and its counterpart in Greek. As we have mentioned previously in analysing the proposal of Rofé, and as clearly emerges from the synoptic table of the whole pericope reproduced before, v. 3b of the MT turns out to be considerably shorter than that of LXXB. Now, the part missing in Hebrew and present in Greek – beside the fact that it reproduces almost literally Num 35,12, as we have seen – raises more than one difficulty in understanding the syntax of the text to the degree that it creates a clear tension between the subject of v. 3b and that of v. 4. Here is a graphic display of the phenomenon, placing together in comparison vv. 3–4 of the MT and v. 3 of LXXB: Josh 20,3–4 (TM)

Josh 20,3 (LXXB)

‫שׁג ָָג֖ה ִבּ ְבלִי־‬ ְ ‫שׁ ָמּ ֙ה רוֹ ֵ֔צ ַח ַמכֵּה־נֶ ֥פֶשׁ ִבּ‬ ֙ ָ ‫ָל ֥נוּס‬ ‫ָ ֑ד ַע ת ְו ָה ֤יוּ ָל ֶכ ֙ם ְל ִמ ְק ָ֔ל ט ִמגּ ֵ ֹ֖א ל הַדָּ ֽם׃‬

φυγαδευτήριον τῷ φονευτῇ τῷ πατάξαντι ψυχὴν ἀκουσίως καὶ ἔσονται ὑµῖν αἱ πόλεις φυγαδευτήριον καὶ οὐκ ἀποθανεῖται ὁ φονευτὴς ὑπὸ τοῦ ἀγχιστεύοντος τὸ αἷµα ἕως ἂν καταστῇ ἐναντίον τῆς συναγωγῆς εἰς κρίσιν

‫ל־אַח ת׀ ֵמ ֶהע ִ ָ֣ר ים ָה ֵ֗א לֶּה ְו ָע ַמ ֙ד ֚ ֶפּ ַתח‬ ‫ ְו ֞נ ָס ֶא‬4 ַ֣ ‫ַ ֣שׁ עַר ָה ִ֔ע יר ְו ִדבֶּ ֛ר בְּאָז ְנֵ ֛י ז ִ ְקנֵ ֥י־הָעִ ֽיר ה ִ ַ֖ה יא‬ ‫יר ֙ה ֲאלֵי ֶ֔ה ם‬ ָ ‫ֶאת־ ְדּב ָ ָ֑ר יו וְאָ ְס ֙פוּ א ֹ֤תוֹ ָה ֙ ִע‬ ‫ְונ ָ ְתנוּ־ל֥ וֹ ָמ ֖קוֹם ְוי ַ ָ֥שׁ ב עִמָּ ֽם׃‬

As can easily be noted, in the MT, there is a discrepancy in number between the subject of v. 3b and that of v. 4a: in fact, whereas, in the first case, the subject is plural (the body of the people of Israel whom YHWH addresses through the mouth of Joshua), in the second, we have a series of verbs in the singular (snw, dm[w, rbdw), the subject of which is implicitly but readily identifiable from the context in the person of the killer. This kind of syntactical hiccup would be virtually absent if the MT followed the version of v. 3b in the LXXB which – by virtue of the addition of the syntagm which follows exactly the famous v. 6a2 of the MT – concludes with the mention of a singular subject (ὁ φονευτὴς) and employs a verbal form that duly agrees with it (καταστῇ).

                                                                                                                141–142; E. CORTESE, Josua 13–21. Ein priesterschriftlicher Abschnitt im deuteronomistischen Geschichtswerk (Freiburg/Schweiz – Göttingen 1990) 20, 78–80.

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Chapter IV: “From Law to Law”. Understanding the Novelty of Num 35,9-34

Precisely for this reason, Schmidt points out – correctly, in my view – that it is difficult to maintain the priority of the Greek text with respect to the Hebrew: to do that, in fact, one would have to claim that whoever modified v. 3 of the MT, cutting it off from the final part that is present only in the Greek, intended deliberately to worsen the flow of the text, causing the syntactic incoherence which we have observed.101 Again, from a comparison between v. 3 of the MT and its counterpart in LXXB, it emerges that the Hebrew version lacks something corresponding to the syntagm αἱ πόλεις which is present instead in the Greek version. Schmidt interprets this element as a further indication of the later nature of the Greek version with respect to the Hebrew: in his opinion, in fact, what we have here is not an omission by the MT – the ratio of which would be difficult to comprehend – but rather an addition of the Greek text of LXXB. The point of this addition to the text in LXXB is quickly revealed: no less than the other elements of v. 3 which are found only in Greek – namely, the syntagm καὶ οὐκ ἀποθανεῖται ὁ φονευτὴς and the counterpart of v. 6a2 of the MT, ἕως ἂν καταστῇ ἐναντίον τῆς συναγωγῆς εἰς κρίσιν – the explicit mention of the cities (αἱ πόλεις) serves to complete the assimilation Josh 20,3b to Num 35,12 perfectly. This can be seen clearly in the following table: Num 35,12 (LXXB) καὶ ἔσονται αἱ πόλεις ὑµῖν φυγαδευτήρια ἀπὸ ἀγχιστεύοντος τὸ αἷµα καὶ οὐ µὴ ἀποθάνῃ ὁ φονεύων ἕως ἂν στῇ ἔναντι τῆς συναγωγῆς εἰς κρίσιν

Josh 20,3b (LXXB) καὶ ἔσονται ὑµῖν αἱ πόλεις φυγαδευτήριον καὶ οὐκ ἀποθανεῖται ὁ φονευτὴς ὑπὸ τοῦ ἀγχιστεύοντος τὸ αἷµα ἕως ἂν καταστῇ ἐναντίον τῆς συναγωγῆς εἰς κρίσιν

Putting together this whole series of arguments, Schmidt concludes his own analysis of the comparison between the two versions of Joshua 20 which we possess, affirming that the older version would be that preserved by the MT – or, better, part of it – as he will explain later. The basis for such a claim lies in the fact that, as we have seen, it is not possible to explain on what logical basis the MT could have arisen as a variant of the Greek version of LXXB. By contrast, it is possible to hypothesise that the version of LXX B constitutes a variant dependent on and posterior to the MT in so far as it has modified –

                                                                                                                101

This is L. Schmidt’s opinion of this. Among other things, (as emerges from the reference in the note) he criticises directly Rofé’s hypothesis on the differences between the Greek and Hebrew versions of Josh 20,3b: “Es laßt sich nicht erklären, warum ein Ergänzer, der V. 4f. einfugte, den ursprünglichen Schluß von V. 3b weggebrochen und damit den harten Übergang von V. 3b zu V. 4 geschaffen haben sollte [It cannot be explained why a redactor, who added v. 3b should have broken the original connection with v. 3b and so created the harsh transition from v. 3b to v. 4.]” (SCHMIDT, “Leviten- und Asylstädte”, 106).

1. Comparison with thematically related texts

153

quantitatively and qualitatively – v. 3b in order to harmonise the text with what was provided for by the legislation recorded in Num 35,9–15. Such a hypothesis interpreting the relationship between the two versions would also explain, among other things, the reason for the absence in Josh 20 of LXXB of any of the legal provisions which are present in the Hebrew text of the MT (cf. vv. 4–5.6*): these would not have been included in the Greek version because they do not belong to the priestly provisions of Num 35,9–15 but rather to the deuteronomistic tradition of Deut 19,1–13.102 *

* *

After having registered the argument for the lateness of the LXX B version of Joshua 20 compared with the MT, Schmidt goes on to reconstruct the redactional history of the MT because, as I have anticipated, he maintains that only one part of it constitutes the Grundbestand, the base text of the cities of refuge in the book of Joshua: it is on to this base layer that further redactional elements would have been added, some of them later even than the Greek version of LXXB. The basic hypothesis is that the oldest Hebrew version of Joshua 20 is a “fulfilment report” of Deut 19,1–13 and is, therefore, prior to Num 35,9–15. Subsequent to the formulation of the priestly legislation on the cities of refuge – or, better, to that which I have described above as the first redactional layer of it103 – this oldest Hebrew version of Joshua 20 would have undergone some modifications by means of redactional insertions aimed at integrating what had been newly provided by the law of Numbers 35. Presenting an argument which is diametrically opposed to that of Rofé, who, as we have seen, upholds the lateness of the Deuteronomistic material which can be detected in Joshua 20, Schmidt postulates the priority of the Grundbestand of the text, starting out from the correspondence of the laws contained there with what is laid down by Deut 19,1–13. With an argument that is more stringent and less subject to the risks which we have shown to lie in the alternative hypothesis, Schmidt hypothesises that Joshua 20 comes to birth as the implementation of the Deuteronomic law, aimed at the clarification of some aspects and the adjustment of the legal provision to the changed socio-historical circumstances of the people of Israel. On the basis of this

                                                                                                               

102 Schmidt laconically concludes his own argument thus: “Deshalb fehlen hier [in LXXB, ed.] jene Anordnungen, die nicht in Num. xxxv 9–15 enthalten sind [Thus, there are lacking here [in LXXB, ed.] those provisions which are not contained in Num. xxxv 9– 15.]” (SCHMIDT, “Leviten- und Asylstädte”, 107). 103 I remind the reader of the fact that by the “first redactional layer” of the legislation of Num 35, I intend vv. 9–11*.13–15, that is, what I have described as the “first reformulation” of the law on the cities of refuge. For further study and details of the argument, I refer to section 2.1.8. of the third chapter.

‫‪Chapter IV: “From Law to Law”. Understanding the Novelty of Num 35,9-34‬‬

‫‪154‬‬

‫‪criterion, he assigns vv. 1–3a.4–5.6*.7–8* (MT) to the Grundbestand of‬‬ ‫‪Joshua 20 and considers the rest as a redactional expansion of priestly origin‬‬ ‫‪directly dependent on Num 35,9–15.‬‬ ‫‪This is how one could reconstruct the redactional history of the text of‬‬ ‫‪Joshua 20 (MT) on the basis of the information in Schmidt’s proposal:‬‬ ‫‪Redactional expansions (Josh‬‬ ‫)*‪20,3a*b.6*.8‬‬

‫‪Grundbestand‬‬ ‫)*‪(Josh 20,1–3a*.4–5.6*.7–8‬‬ ‫‪2‬‬

‫שׁג ָָג֖ה‬ ‫‪ִ  ‬בּ ְ‬ ‫ְו ָה ֤יוּ ָל ֶכ ֙ם ְל ִמ ְק ָ֔ל ט ִמגּ ֵ ֹ֖א ל הַדָּ ֽם׃‬

‫ֵאמ ֹר׃ ַדּבֵּ ֛ר ֶאל־‬ ‫ְהוֹשׁ ַע ל ֽ‬ ‫ַוי ְ ַד ֵ ֣בּ ר י ְה ֔ ָו ה ֶאל־י ֻ ֖‬ ‫ֵאמ ֹר ְתּ ֤נוּ ָל ֶכ ֙ם ֶאת־ע ֵ ָ֣ר י ַה ִמּ ְק ָ֔ל ט‬ ‫בְּנֵ ֥י י ִ ְ‬ ‫שׂ ָר ֵ ֖א ל ל ֑‬ ‫ֵיכ ם ְבּי ַד־מ ֶֹשֽׁה׃‬ ‫ֲא ֶ‬ ‫שׁר־ ִדּבַּ ְ֥ר ִתּי ֲאל ֶ ֖‬ ‫‪3‬‬ ‫שׁ ָמּ ֙ה רוֹ ֵ֔צ ַח ַמכֵּה־נֶ ֥פֶשׁ ]…[ ִבּ ְבלִי־‬ ‫ָל ֥נוּס ָ ֙‬ ‫ָ ֑ד עַת‬ ‫ל־אַח ת׀ ֵמ ֶהע ִ ָ֣ר ים ָה ֵ֗א לֶּה ְו ָע ַמ ֙ד ֚ ֶפּ ַתח‬ ‫‪ְ 4‬ו ֞נ ָס ֶא‬ ‫ַ֣‬ ‫ַ ֣שׁ עַר ָה ִ֔ע יר ְו ִדבֶּ ֛ר בְּאָז ְנֵ ֛י ז ִ ְקנֵ ֥י־הָעִ ֽיר ה ִ ַ֖ה יא‬ ‫יר ֙ה ֲאלֵי ֶ֔ה ם ְונָ ְתנוּ־‬ ‫ֶאת־ ְדּב ָ ָ֑ר יו וְאָ ְס ֙פוּ א ֹ֤תוֹ ָה ֙ ִע ָ‬ ‫ל֥ וֹ ָמ ֖קוֹם ְוי ַ ָ֥שׁ ב עִמָּ ֽם׃‬ ‫‪ְ 5‬ו ִכ֙י י ְִר ֜דּ ֹף גּ ֵ ֹ֤א ל ַה ָדּ ֙ם אַ ֽח ֲָ֔ר יו ְוֹלֽא־י ַ ְס ִגּ֥רוּ ֶאת־‬ ‫ת־ר ֵ֔ע הוּ‬ ‫הָר ֵ ֹ֖צ ַח ְבּי ָ֑ד וֹ ִכּ֤י ִב ְבלִי־ ַ ֙ד ַע ֙ת ה ִָכּ֣ה ֶא ֵ‬ ‫שׁוֹם׃‬ ‫שׁ ְל ֽ‬ ‫ְוֹלֽא־שׂ ֹנֵ ֥א ה֛ וּא ל֖ וֹ ִמ ְתּ ֥מוֹל ִ‬ ‫‪ְ 6‬וי ַ ָ֣שׁ ב׀ בּ ִ ָ֣ע יר ַה ִ֗ה יא‬

‫שׁ ָ֔פּ ט‬ ‫‪  ‬עַד־ ָע ְמ ֞דוֹ ִלפ ְֵנ֤י הָ ֽ ֵע ָד ֙ה ַל ִמּ ְ‬ ‫עַד־מוֹ ֙ת הַכּ ֵ ֹ֣ה ן ַהגּ ָ֔דוֹל ֲא ֶ ֥שׁ ר י ִ ְה ֶי֖ה ַבּיּ ִ ָ֣מ ים ה ֵ ָ֑ה ם‬ ‫ֵיתוֹ‬ ‫וּב א ֶאל־עִיר ֙וֹ ְו ֶאל־בּ ֔‬ ‫ָ ֣א ז׀ י ָ֣שׁוּב הָרוֹ ֵ֗צ ַח ָ ֤‬ ‫שׁר־נָ ֥ס ִמ ָשּֽׁם׃‬ ‫ֶאל־ה ִ ָ֖ע יר ֲא ֶ‬ ‫ת־ק ֶד שׁ ַבּגָּלִיל֙ בּ ַ ְ֣ה ר נַ ְפ ָתּ ִ֔ל י ְו ֶאת־‬ ‫‪ַ 7‬ויּ ַ ְק ִ֜דּ שׁוּ ֶא ֶ ֤‬ ‫אַרבַּ ֛ע ִה֥יא‬ ‫שׁ ֶ ֖כ ם בּ ַ ְ֣ה ר ֶאפ ָ ְ֑ר י ִם ְו ֶאת־ ִק ְר ַי ֥ת ְ‬ ‫ְ‬ ‫ְהוּדֽה׃‬ ‫ֶחב ְ֖רוֹן בְּהַ ֥ר י ָ‬ ‫‪ 8‬וּ ֵמ ֵ֜ע בֶר ְלי ְַר ֵ ֤דּ ן י ְִריח ֙וֹ ִמז ְָ֔ר חָה נָ ְת ֞נוּ ֶאת־בֶּ ֧ צֶר‬ ‫ישׁ ֹר‬ ‫ַבּ ִמּ ְדבָּ ֛ר ַבּ ִמּ ֖‬ ‫אוּב ן‬ ‫ִמ ַמּ ֵ ֣טּ ה ְר ֵ ֑‬ ‫אמ ֹת ַבּגִּ ְל ָע ֙ד‬ ‫ְו ֶא ָ‬ ‫ת־ר ֤‬ ‫‪ִ  ‬מ ַמּטֵּה־ ָ֔ג ד‬ ‫ָשׁ ן‬ ‫ְו ֶאת־)גָּלוֹן( ]גּוֹלָ ֥ן[ ַבּבּ ָ ֖‬ ‫‪ִ  ‬מ ַמּ ֵ ֥טּ ה ְמנ ֶַשּֽׁה׃‬ ‫‪9‬‬ ‫שׂ ָר ֵ֗א ל‬ ‫ֵ ֣א לֶּה הָי ֩וּ ע ֵָר֙י ַה ֽמּוּ ָע ָ֜ד ה ל ְ֣כ ֹל׀ בּ ְֵנ֣י י ִ ְ‬ ‫ֵה־נ פֶשׁ‬ ‫ְו ַלגֵּ ֙ר ה ַָגּ֣ר בְּתוֹ ָ֔כ ם ָל ֣נוּס ָ֔שׁ ָמּה כָּל־ ַמכּ ֶ ֖‬ ‫שׁג ָָג֑ה וְֹל֣ א י ָ֗מוּת ְבּי ַ ֙ד גּ ֵ ֹ֣א ל ַה ָ֔דּ ם עַד־ ָע ְמ ֖דוֹ‬ ‫ִבּ ְ‬ ‫‪ִ  ‬לפְנֵ ֥י ָהע ֵָדֽה׃ פ‬

1. Comparison with thematically related texts

155

Let us start from v. 3a in which Schmidt observes the first redactional insertion: he maintains that the term ‫שׁג ָָג֖ה‬ ְ ‫ ִבּ‬was added to the Grundbestand by a late redactor with the aim of harmonising the text of Joshua 20 with the provision of Num 35,9–15 in which this term appears twice (in v. 11 and v. 15, to be precise). I have shown previously and several times that ‫שׁג ָָג֖ה‬ ְ ‫ ִבּ‬represents one of the more specific and peculiar elements of the legislation of Numbers 35 in general, and especially of the most ancient layer of this legislative text,104 and so I shall not take the trouble of following Schmidt into the details of his argument. I think, however, that it is possible to make some clarification on the merit of the interpretation of the addition. Schmidt asserts that the problem represented by the presence of the term ‫שׁגָ ָג֖ה‬ ְ ‫ ִבּ‬in Josh 20,3 is basically a stylistic one since the association of the two terms in a single statement ends up by causing what he describes as a semantic overcrowding. 105 From what has emerged from my study, however, whereas the expression ‫ִי־ד עַת‬ ְ ‫ִבּ‬ ֑ ָ ‫ ִבּ ְבל‬certainly indicates lack of intention, ‫שׁג ָָג֖ה‬ describes inadvertence and not simply error. In my opinion, therefore, their association in Josh 20,3 does not produce a mere semantic overcrowding or a simple redundancy but rather the association of two concepts – lack of intention and inadvertence – which both make up part of the legal purpose of Num 35,9–34 as I trust to have shown in my analysis of this text. Clearly, the redactor responsible for inserting the addition was more concerned with the incorporation of one of the principal legislative innovations of Numbers 35 – namely, the inclusion in the law of refuge of cases of homicide by inadvertence beside those of involuntary homicide already provided for by Deuteronomy 19 – than the semantic balance of the statement in Josh 20,3a. As for the rest of the additions, the Schmidt’s interpretative principle of action of the later redactor remains the same: the insertion of both the by now well-known v. 6a2 and of v. 9 – as well as, “vielleicht [perhaps]”,106 the information relating to the trans-Jordanian tribes which is encountered in v. 8 – respond to the intention of aligning the content of Joshua 20 with what is prescribed by Num 35,9–34. *

* *

                                                                                                                104

ter.

On this topic, I refer to what was said in sections 2.1.3. and 2.1.8. of the third chap-

105 “Freilich ist auch V. 3a überfüllt, weil hier “aus Versehen” (bsggh) und “ohne Absicht” (bbly dct) direkt aufeinander folgen [Of course, v. 3a is also overloaded, because here “without intent” (bsggh) and “unwittingly” (bbly dct) follow each other directly]” (SCHMIDT, “Leviten- und Asylstädte”, 107). 106 SCHMIDT, “Leviten- und Asylstädte”, 108.

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Chapter IV: “From Law to Law”. Understanding the Novelty of Num 35,9-34

Now that I have carefully weighed the arguments, I am able to say that Schmidt’s proposal is the one which better explains the genesis and redactional evolution of Joshua 20: it describes in a manner that is a lot more coherent the relationships between the versions of this text which have come down to us. The path of formation of the text which we possess today, therefore, would originate in the Hebrew version which Schmidt has described as the Grundbestand and which is presented as a practical adjustment of what had already been provided for in principle by the Deuteronomic law (Deut 19,1– 13). On to this base, a later redactor would have added further supplements aimed at integrating the legislative text with the provisions with which Numbers 35 had enriched the law on the cities of refuge. This fusion would bring about the present MT version of Josh 20,1–9. As for the Greek text, in agreement with Schmidt, we are not in a position to establish with certainty if Joshua 20 of LXXB comes from a different Hebrew Vorlage – and so another with respect to the MT – or whether it is simply the result of an adaptation that can be ascribed to the translator. What appears quite clear is that the text in our possession is presented as a perfect “fulfilment report” of Num 35,9–15 since it records all the innovative elements introduced by this priestly legislation whereas it is without all the Deuteronomic specifications which are present in the MT.107 As we have seen, the hypothesis of the lateness of the Greek text compared to the Hebrew is based on two kinds of reasons. The first reason consists in the fact that, if it were considered as the archetype of the MT, the text of LXX B would not be able to explain the origin of the variant, as we have previously argued at length. The second reason derives from what has just been said in connection with the relationship of Joshua 20 to the two legislative traditions of the Pentateuch: whereas the Grundbestand of the Hebrew text is presented as an adjustment of what is laid down in Deut 19,1–13, the version of LXX B is considered an “fulfilment report” of Num 35,9–15. So, then, by virtue of the relation of dependence between the two Pentateuchal traditions – to which we shall turn in more detail in the next section – we have to hold that the base text of the Hebrew version preserved in the MT represents the (at least, probable) archetype of Joshua 20.

                                                                                                                107

Cf. the total absence of vv. 4–5 and of part of v. 6.

2. Conclusions on the interdependence of the four biblical texts analysed

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2. Conclusions on the interdependence of the four biblical texts analysed 2. Conclusions on the interdependence of the four biblical texts analysed

The considerations just developed on the history of the redaction of the text of Joshua 20 are a good introduction to the final step of our analysis which provides for the development of some hypotheses relating to the interdependence of the biblical legislative traditions concerning different cases of homicide – unintentional, inadvertent and voluntary – and their regulation. Without claiming to wish to say the last word on the subject, I shall simply try draw together the threads of what has emerged from the analysis of the four pericopes in order to understand better their genesis and their purpose. On the basis of what has been gathered from our study, the oldest biblical tradition which contains regulation of the cases of unintentional homicide by the institution of cities of refuge is the law of Deut 19,1–13. Although traditional opinion tends to trace the prehistory of this type of law in Ex 21,13–14, we have been able to show that this passage from Exodus is most probably the result of a later addition. In fact, this text clashes thematically and stylistically with its immediate context (Ex 21,12.15–17); from a formal point of view, moreover, it betrays rather clearly the influence of Deut 19,4b.5b.11. We have to maintain, therefore, that, originally, the Covenant Code did not contain any legal provisions concerning the treatment of cases of unintentional homicide. Rather, it was limited to decreeing the death sentence for one who, in his turn, had been the cause of death, regardless of the circumstances.108 The mens of the Deuteronomic legislation would consist precisely in the intention of differentiating the case with regard to the circumstances. This could result in the complete reversal of the assessment of a case of violent death. In fact, the situation is one thing with a premeditated homicide, the outcome of an action positively directed at depriving a neighbour of the supreme good, that is, his life; it is another thing when the violent death of a man is the result of a totally fortuitous event which can in some way be ascribed to one who has been found to commit it against his own wishes. With these specifications, therefore, the provision of Deut 19,1–13 is putting a structural limit on the automatic and indiscriminate application of blood vengeance on the part of the family of the victim, locating in the institution of the cities of refuge the legislative expedient by which the safety of the manslayer remains guaranteed from the wrath of the avenger of blood.

                                                                                                                108

Cf. Ex 21,12: “Whoever strikes a man so that he dies shall surely be put to death”.

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As emerges clearly from the example of Deut 19,4–5, the sphere of validity of the institution of the cities of refuge embraces exclusively cases of unintentional homicide. Finally, what is laid down in Deut 19,12 relating to the jurisdiction of the elders of the city of origin of the manslayer makes us inclined to maintain that the foundation of this Deuteronomic law is based on the jus soli: this in an interesting element in the process of reconstructing the sequence of the texts inasmuch as it refers to an historico-social situation in which Israel exercises its own sovereignty in an independent form over a particular territory – in this specific case by means of one of its own most ancient institutions, that of the elders. What we have described as the Grundbestand of the Hebrew version of Joshua 20 (that is, vv. 1–3a*.4–5.6*.7–8* of the MT) is well suited to represent the next stage in the evolution of the legislation relating to the cities of refuge. This text takes the form of an “fulfilment report” proper of Deut 19,1–13 insofar as it is introduced as the fulfilment by Joshua of the order which YHWH had given to Moses. With its structured redactional sequence, which, as we have seen, is marked by two broad stages of formation – briefly: the first recognisable in vv. 9–15; the second in the remaining vv. 16–34 – the legislation in Num 35,9–34 takes the form of the end–point of the biblical law relating to the cities of refuge. With the double inclusion of the cases differing from unintentional homicide – that is, the cases of inadvertent homicide and of murder – this priestly law takes the form of a kind of juridical compendium for the penal treatment of cases of homicide. This compendium is characterised by a common element which runs like a fil rouge throughout the legal provision of Num 35,9–34: no one can arrogate to himself the right to suppress the human life which belongs to YHWH who created it. That is clearly the case for the killer, but also – and this is the great innovation of our priestly legislation – for the ~dh lag from whose thirst for revenge the law intends to protect the author of the deed with fatal consequences, regardless of whether it involves a manslayer or a murderer. By virtue of this principle, every case of homicide must be judged on the basis of the Torah by the body divinely appointed for the task, namely, the assembly. What we have identified as late redactional additions to the MT of Joshua 20 (that is, vv. 3a*b.6*.8*) – as also presumably the entire Greek version of LXXB – represent the attempt to integrate the novelties contributed by the legislation of Num 35,9–34 into a final text of Joshua 20 which is intended to be the “fulfilment report” of all the commands which YHWH gave to Moses concerning the cities of refuge.

Conclusion “Does it make sense to speak of biblical law? If yes, in what terms can we speak of it?”. These are the questions we posed at the beginning of our study. They were aroused appropriately by the observations of those who have maintained in different ways – not always in a way that is entirely without polemic – that the adjective ‘biblical’ is not actually suitable for qualifying the substantive ‘law’. The response which we have tried to offer to these questions represents the ideal frame containing the particular object of our enquiry which has been carried out around the biblical criminal legislation contained in the fourth book of the Torah of Moses, that is, the book of Numbers. By means of the status quaestionis, the first two chapters led us to a progressive familiarisation with ideas which were shown to be fundamental for the progress of the study. Having tried to shed light on the concept of “biblical law” and the difficulties of an epistemological, cultural and methodological order which its correct understanding involves, we took into account the challenge deriving from the distinction between civil and criminal laws in the ancient juridical systems. Bringing the discourse within the biblical text, we sought to understand the nature of the legislative material contained in it with a careful look at the closest context to the formation of biblical legislation, that represented by the legal traditions of the ANE. From a comparison between these two elements there emerged clear features of continuity deriving from their common background; but, at the same time, there appeared clearly various peculiar and unique characteristics of the biblical legislation among which we highlight, for its importance, the element of relation which lies at the base of the covenant between God and man, the fundamental cipher by means of which every law and every norm in the Bible is to be understood. We have, therefore, confined our study to the biblical legislation of a criminal nature, beginning with the understanding of the distinguishing criteria of the laws in order to reach some reflection on those which classify the laws within the individual biblical books, especially the Pentateuch. The final part of the second chapter brought us gradually within the book of Numbers which represents the immediate field of our research. After having accounted for the general characteristics of this biblical book, paying special attention to the difficulties which are encountered in the structure and

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arrangement of its content, we developed a series of considerations on the legislative material and on its function in the economy of the entire book. The analysis showed that, although not sharing the compact and unitary nature of the three great ‘codes’ contained in the books preceding it in the canon, the legislative ‘fragments’ of the book of Numbers could have an important function in the reconstruction of the redactional stages of the composition of the book, shedding light – if only indirectly – on the Sitz im Leben of those responsible for it. Having clarified the basic ideas and laid down the epistemological and semantic bases of the pivotal points of the argument, we entered into the heart of the study in the third chapter with the exegetical analysis of the pericope of Num 35,9–34. The starting point for our enquiry is well encapsulated in the title of the chapter: “Repetition or reformulation?”. Usually, in fact, the tendency is to hold that what Numbers lays down concerning the “cities of refuge” is none other than a re-presentation of what was already contained in the previous parallel biblical traditions (Ex 21 and Deut 19), in the form of an adaptation of the legislation to changed circumstances. By means of a detailed study of the thematic structure of the text, its argumentative logic and the key terms contained there, we reached the conclusion that our pericope represents a real reformulation of the biblical criminal law relating to cases of homicide. Without question, this reformulation had its starting point in the previous traditions (more particularly in Deut 19,1–13, as emerged from the comparison carried out in the following chapter), but – far from being a slavish copy of its predecessors – it displays novel features in such a way as to appear as the climax of the biblical legislation on the treatment of cases of homicide. The real novelty of the law contained in Num 35,9–34 can be summarised in two ways which, among other things, correspond to the particular contribution of each of what we have identified as the two compositional layers of the pericope. The older text, which we have confined to Num 35,9–11*.13–15, includes within the sphere of validity of the law on the “cities of refuge” the case of inadvertent homicide: with the aid of the syntagm hggvb, the protection of the law is extended further to someone who has acted with consciousness of what he was doing but without the full awareness of the consequences of his action which in the particular case are fatal in nature. The second fundamental redactional layer (Num 35,11*.16–2)1 is inserted on this substratum to add a series of very important elements, first and fore-

                                                                                                               

1 I recall the fact that, in the reconstruction of the redactional history of the text, I deliberately left vv. 30–34 on one side because, as I showed in the section of the demarcation of the passage, they are generally agreed to be the result of a further redactional expansion (cf. NOTH, Numbers, 256; BAENTSCH, Numeri, 695; LEVINE, Numbers 21–36, 548; SCHMIDT, “Leviten- und Asylstädte”, 104). However, this further expansion does not alter

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most the further extension of the sphere of validity of the law. By introducing the term xcr, employed several times in this legal text without any specification, the law is providing protection from the revenge of the avenger of blood for every homicide, regardless of the circumstances. As we have reiterated several times, that does not mean – clearly – that the law is intended to offer a guarantee of immunity to someone who has committed a homicide deliberately: it means rather that – on the theological basis of the sacred nature of human life of which God is the sole Disposer – the law contained in Num 35,9–34 strives in every way to preserve the life of the accused, removing him from the hands of the ~dh lag so that he can appear before the assembly for judgement. This institution, by divine arrangement and so in the name of YHWH, will decide on the guilt or innocence of the accused. Such an interpretation of the pericope, linked with some textual indicators which betray the rather meagre interest of the text in the question of the physical location of the “cities of refuge”, allowed us to infer that for the priestly legislative tradition of Num 35,9–34 the real place of refuge is the Torah. In fact, the ideal course of the law is wholly directed at bringing the resolution of cases of homicide within the sacred perimeter of the law in an attempt to supersede once and for all the ancestral custom of family revenge based on the lex talionis. In the last chapter of this book, we made a comparison with the other Pentateuchal traditions (Ex 21,12–14 and Deut 19,1–13) and with the parallel text in Josh 20,1–9. From this, the particular nature of the legislative tradition preserved in Num 35,9–34 emerged with still more clarity. The analysis of the individual pericopes made possible the tracing of a kind of “genetic map” of the individual traditions by reconstructing the relationships of dependence which bind them together. From this reconstruction, it emerges that Num 35,9–34 represents the finishing line in the course of the formation of this law by virtue of the fact that it represents a sort of biblical juridical compendium for the penal treatment of cases of homicide. *

* *

The law, therefore, stands out at the centre of all the biblical legislation about the cities of refuge: and not any law, but the law, that is, the Torah which originates from YHWH himself through the mouth of Moses. The Torah, which is the real place of refuge.      

                                                                                                                the basic framework of the legal provision which is based on the concept of “double reformulation”.

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175

Index of Biblical References (selective) Genesis 1–2 3,15 4,8 9,5–6 9,6 17,8 23,4 24,12 24,58 27,20 28,4 35,27 36,7 37,1

1 95 137 104, 111, 140 104 83 83 54 93 54 83 83 83 83

Exodus 1,14 12,20 19–24 20,12 20,13 20,15 20,22–23,33 21 21,1 21,1–11 21,1–22,16 21,2–11 21,2–22,16 21,12 21,12–13 21,12–14

21,12–17 21,12–27

82 106 26 117 58, 59, 116, 117 116, 117 38 121, 122, 160 114 114, 119 114 36 114 117, 119–122, 132, 141, 157 49, 168 1, 3, 44, 45, 113, 114, 119, 121, 142, 161 114, 116, 118, 141 36

21,13 21,13–14

21,14 21,15 21,15–17 21,16 21,17 21,18–22 21,28–37 21,29 21,30 21,33–36 21,37 21,37–22,16 22,16 22,17 22,20 23,9 24,7 30,12

57, 67, 121, 122 21, 14, 114, 115, 119, 120–122, 132, 141, 157 122, 132 114, 117, 118 117, 119, 122, 132, 141, 157 114, 117 114, 117, 118 118, 119 36 127 109 36 37 37 114 116 81 81 26 109

Leviticus 1–7 3,17 4–5 4,2 4,13–14 4,22 4,27 4, 27-28 5,1 5,1–4 5,14–16 5,14-19 5,15 5,17–19

38 106 63, 66 62, 63 64 62, 63 62, 63 64 66 66 64 66 62, 63 64

176 5,18 6,20 7,26 11–15 16 16,32 17,1–25,54 17,1–7 17,7 17,11a 19,34 20,9 21,10 22,14 22,23 23,3 23,21 24,19–20 25 25,25 25,25–34 25,26 25,30 25,48 25,49 25,54 27,13 27,15 27,19 27,20 27,27 27,28 27,31 27,33

Index of Biblical References 62, 63, 65, 66 103 106 38 38 103 38 134 134 111 81 109 103 62 55 106 106 91 83 70 70 70 70 70 70 70 70 70 70 70 70 70 70 70

Numbers 1–4 1–10 1,1–10,10 1,1–25,18 6,9 10,11–21,20 10,11–22,1 10,11–36,13 14,4 15 15,2 15,22–31

111 43 40, 41 40 96 41 40 41 76 43 106 63

15,24 15,25 15,26 15,27 15,28 15,29 21,21 21,21–26 21,2–36,13 25,19–36,13 26,3 26,63 27,11 33,1–49 33,48–50 33,50 33,50–56 33,51 33,53 33,52–54 34,1 34,1-15 34,16 34,16–29 34,29 35 57, 35,1 35,1–8 35,2a 35,6 35,6a 35,6–34 35,9 35,9–10a 35,9–11 35,9–15 35,9–24 35,9–29 35,9–34

35,10b 35,10b–15 35,11

62 62 62 62 62 62 41 41 40 40 46 46 106 53 46 46 46 53 53 53 47 46 47 46, 48, 49 46 38, 47–49, 53, 55, 58, 61 46 48, 49, 78 78 47, 55, 58 78 43 50, 107 50 58, 87 48, 89, 158 50, 107 47 61, 62, 67, 68, 72, 74–76, 80, 84–86, 89, 92, 95–99, 101, 104, 107, 111–114, 126 51, 53, 54, 109 68 44, 45, 47–50, 52, 54, 55, 62, 67, 68, 72, 73, 85, 127, 160

177

Index of Biblical References 35,11b 35,11–12 35,12 35,13–15 35,14 35,14–15 35,15 35,15b 35,16 97, 35,16–18 35,16–21 35,16–29 35,16–34 35,17 35,18 35,19 35,20 35,20–21 35,21 35,21b 35,22 35,22–23 35,22–28 35,23 35,23a 35,24 35,24–25 35,24–28 35,24–29 35,25 35,25–34 35,26 35,27 35,27b 35,28 35,29 35,30 35,30a 35,30–31 35,30–32 35,30–34

51, 84 72, 85 55, 58, 69–75, 78, 80, 84, 87, 92, 99 80, 87 55, 101 133–136 51, 55, 62, 67, 68, 83–85, 127 84 51, 58, 60, 90, 91, 129 90, 129 51, 90, 93, 95 48, 49, 51, 85, 87, 89, 90 158 58, 60, 97, 129 58, 60, 95, 129 58, 60, 90, 92, 93 58, 93, 94, 96, 97, 121 93,97, 98 93, 95, 97 95 51, 94–98, 127 59, 90, 96, 98 51 97 97 68, 70, 97, 98, 105, 106 75, 78 90 107 55, 58, 68, 70, 99, 100, 101, 102 47 55, 58, 97, 99 55, 58, 68, 70, 99 95, 105 51, 55, 58, 99–101, 104 49, 51, 106, 107 58, 107, 108 59 107, 110 107, 108 48, 49

35,31 35,31–32 35,32 35,33 35,33–34 35,34 36,1–12 36,13

107, 109 109 55, 100, 101, 109 111 54, 111, 112 50, 54, 111 43 46, 53

Deuteronomy 3,12-20 4,1 4,1–2 4,41–43 4,42 4,43 4,44 4,44–28,68 4,6 4,41–43 5,17 5,28–6,1 6,17–18 7,16 9,6 9,15 10,19 11,8 11,22–24 11,32–12,1 12,1–14 12,1–26,15 12,10 12,13–28 12,13–19 12,20 12,29a 14,22–29 14,24 16,18 17,6 18,6 19 19,1 19,1–21,9 19,1–3 19,1–7

123 136 28 124 127 79 123 123 28, 136 123, 145, 148 58 125 136 139, 140 130 31 81 136 136 125 131 38, 123 126 134 134 120 126 130 130 137 108 93 55, 57, 79, 121, 122, 155, 160 123, 124, 126 125 125 133, 135

178 19,1–13

19,1-14 19,2 19,2–7 19,3 19,4 19,4b 19,4–5 19,4b–5b 19,4–6 19,4–10 19,5 19,5b 19,5–6 19,6 19,7 19,8 19,8–9 19,10 19,10–13 19,11 19,11–13 19,12 19,13 19,13a 19,14 19,15 19,15–18 19,16–34 19,18–19 19,21 20,1–20 21,1 21,1-9 21,9 21,18–21 25,12 26,18 28,9

Index of Biblical References 1, 3, 44, 49, 57, 86, 87, 113, 114, 120– 124, 127, 131, 132, 134, 135, 140–142, 150, 153, 156–158, 160, 161 96 124, 132, 134 132 126, 127, 130 67, 127 121, 122, 137, 157 122, 158 121 122, 158 126, 136 127, 129 121, 122, 129, 157 132 70, 127, 130–132 132, 134 134, 135 133, 135, 136 133, 136 133, 135 121, 122, 129, 132, 137, 141, 157 136 70, 137, 150, 158 125, 139–141 139, 140 123, 125, 126 108 123 158 108 71, 91, 123 123 126 123 123 118 125 136 136

Joshua 3,4

20

20–21 20,1–7 20,1–9 20,1 20,1–3 20,2 20,3 20,3a 20,3b 20,3–4 20,4–5 20,5 20,6 20,7–8 20,7–9 20,8 20,9 21 21,13 21,21 21,27 21,32 21,38

55, 79, 144, 145, 148, 150, 153, 156, 158 47, 57 44, 45, 113 3, 141, 142, 150, 151, 156 145 148, 154 55, 142, 145 55, 62, 67, 144, 151, 154, 155, 161 155 144, 149–152 151 154, 158 127 154 79, 145, 146, 154, 158 148 136, 154 62, 69 47 47, 55 47, 55 47, 55 47, 52 55

1 Samuel 6,18 12,3 21,10 26,6 30,15

109 109 93 93 93

1 Kings 1,50–53 12,20

119 76

2 Kings 17,13

102

1 Chronicles 127

6

55, 57

179

Index of Biblical References 6,42 6,52

55 55

2 Chronicles 30,6

125 102 56 56

102 95 92 91

Hosea 6,9 14,1–2

3,7

2,7

102

60 102

96

Job 24,14 33,24

Ezekiel 14,6 25,15 35,5 39,9

102

Habakuk 60 96 96 102

Jeremiah 2,23–3,31 3,11–4,2 16,19 17,17

2,12–13 Malachi

102

Isaiah 1,21 29,5 30,13 44,22

Joel

60 109

Psalms 18,3 39,4 94,6

56 130

Proverbs 6,15 6,35 10,11–22,1 22,2–36,13 22,13 29,1 29,5

96 109 40 40 60 96 96

Ruth Amos 5,12

109

1,11 3,13

93 93

Authors Index Achenbach, R. 43, 46 Adam, K.-P. 25 Alonso Schökel, L. 36 Alt, A. 117, 118 Anbar, M. 120–122 Andrew, M.E. 58, 59 Artus, O. 25 Auld, A.G. 46, 48, 131 Avemarie, F. 25 Baentsch, B. 86, 103, 160 Bailey, J.W. 103 Barbiero, G. 82 Barmash, P. 15, 61, 69–71, 90, 91, 109, 121, 131, 138 Bartor, A. 25 Baumgartner, W. 54, 56, 58 Bergmann, E. 17 Berlanstein, L.R. 14 Berman, H.J. 9, 11, 13, 15–17 Boccaccio, P. 36 Bottéro, J. 23 Bovati, P. 33 Boyer, G. 35 Briggs, C.A. 54, 56, 58, 108 Brown, F. 54, 56, 58, 108 Brown, W.P. 7 Buchholz, J. 137 Budd, P.J. 46, 63, 79, 91, 92, 101, 104, 105, 107 Burnside, J. 25 Buss, M.J. 32–34, 91, 93 Carmichael, C.M. 25 Carpenter, E. 76 Cassuto, U. Cazelles, H. 34, 35, 141 Childs, B. 114, 116–118 Christensen, D.L., 123, 125

Cocco, F. 52, 82, 103, 131, 137 Cocks, R. 6 Cortese, E. 151 Cotterrell, R.B.M. 13 Crüsemann, F. 115 David, M. 113, 131, 141, 150 Davies, E.W. 79, 91, 92, 101, 104, 105, 109 De Vaulx, J. 40, 46, 48–50, 56, 63, 71, 75, 78, 84, 107 De Vaux, R. 63, 64, 70, 71, 79, 80, 81, 104 Delekat, L. 151 Delnero, P. 22 Denneler, I. 10 Dentan, R.C. 70 Domeris, W.R. 58 Driver, G.R. 21 Driver, S.R. 54, 56, 58, 88, 97, 108, 123–125, 130, 137 Driver, W. 103 Durham, I. 82 Eilers, W. 35 Fabry, H.-J. 42, 59, 66, 70, 76, 81, 94, 95, 99, 100, 109, 129 Farrer, M.R.W. 76 Finkelstein, J.J. 29 Fishbane, M. 131 Geldart, W.M. 30 Gerstenberger, E. 25, 26, 119 Görg, M. 76 Graupner, A. 100 Gray, G.B. 40, 46, 47, 55, 63, 71, 72, 75, 79, 81, 90, 91, 93, 97, 98, 101, 105, 107, 109, 110

Authors Index

181

Greenberg, M. 24, 25, 31, 56, 70, 95, 104, 108, 131 Grimm, K.J. 62 Gross, W. 38

Levy, D. 76–78 Lipinski, E. 94 Lobban, M. 13 Lockshin, M. 124

Haase, R. 21 Haran, M. 78 Hartley, J.E. 63 Henton Davies, G. 87 Hepner, G. 25 Hertzberg, H.W. 147 Hill, A.E. 56, 62 Hoffmann, D. 99 Holzinger H. 40, 42 Hossfeld, F.-L. 59, 99 Houtman, C. 26 Hubbard, R.L. 70, 100 Hurvitz, A. 78, 87

Maine, H.J.S. 5, 6, 9, 10, 26 Markl, D. 59, 126 Martens, E.A. 100 Martin-Achard, R. 81, 83 May, M. 28 Mazar, B. 78 McCann, J.C. 109 McCarthy, C. 139 McKeating, H. 114, 131 McKenzie, J.L. 137 Mertz, E. 131 Miles, J.C. 21 Milgrom, J. 54, 63, 64–66 Muraoka, T. 93, 97, 98, 115, 117, 128, 129, 135

Jackson, B. 6, 7, 9, 11, 24, 26, 32, 37, 69, 114, 115, 119–122 Jacobsen, T. 76, 77 Jankowski, B. 65 Jepsen, A. 114 Joüon, P. 53, 93, 97, 98, 115, 117, 128, 129, 135 Kaltoff, B. 99 Kautzsch, E. 53, 93, 97, 98, 115, 117, 128, 129, 135 Kellermann, D. 81, 83 Kennicott, B. 53, 81, 83, 139 Klíma, J. 17 Knierim, R.P. 40, 41, 46, 49, 65 Köhler, L. 54, 56, 58 Konkel, A.H. 94 Kraus, F.R. 22, 23 Kruchten, J.-M. 17 Lafont, S. 18, 20 Landsberger, B. 21 Lang, B. 109 Lass, R. 57 Lee, B.P. 25 Lee, W.W. 46, 48, 49 Levin, C. 144 Levine, B.A. 46, 49, 55, 58, 61, 62, 63, 74, 78, 86, 92, 105, 107, 160 Levinson, B. 20, 115, 120

Nicolsky, N.M. 131 Nihan, C. 63, 66 Noth, M. 2, 39, 41, 42, 46, 48, 49, 55, 63, 85, 86, 104, 107, 111, 141, 160 O’Connor, M. 93, 98, 115 Olson, D.T. 40, 43 Otto, E. 19–24, 42, 115, 119 Pakkala, J. 143 Patrick, D. 115 Paul, S.M. 26, 27, 31, 35–37, 109 Pennington, K. 31 Petschow, H. 17, 35 Phillips, A. 25, 31, 32, 59, 69, 138 Phillips, D.L. 53, 74 Pope, M.H. 79 Preiser, W. 20 Rabast, K. 117 Ramírez Kidd, J.E. 83 Rendtorff, R. 65 Reventlow, H.G. 50 Ringgren, H. 66, 70, 71, 76, 81, 94, 95, 99, 100, 109, 129, 59 Rofé, A. 36, 85, 114, 125, 126, 130–135, 144–153 Römer, T. 38, 39, 42, 43

182

Authors Index

Roth, M.T. 16, 21 Rothenbusch, R. 119 Ruwe, A. 141 San Nicolò, M. 35 Schenker, A. 119, 120 Schmid, K. VII, 109 Schmidt, L. 46, 48, 49, 59, 79, 85, 86, 135, 144, 150–156, 160 Scholl, R. 18 Schwienhorst-Schönberger, L. 115, 116 Seidl, T. 66 Seux, M.-J. 20 Shinan, A. 32 Ska, J.L. VIII, 1, 6–8, 16, 18–21, 23, 25–28, 38–42, 123, 137, 144 Speiser, E.A. 21 Stackert, J. 131 Stamm, J.J. 58, 59 Staszak, M. 114 Sulzberger, M. 69, 138 Szlechter, E. 16, 17, 20

Tomasino, A. 96, 130 Trebilco, P. 111 Van Seters, J. 115 Von Gall, A. 53, 74, 138 Von Savigny, F.K. 10, 12 Wagner, S. 129 Wagner, V. 35, 137 Waltke, B.K. 93, 98, 115 Watts, J.W. 63 Wazana, N. 25 Weinfeld, M. 123, 124 Wellhausen, J. 103, 114, 124, 131 Wells, B. 15, 16, 108 Westbrook, R. 16, 22 Wevers, J.W. 68, 74, 138 Wharton, J.A. 56 Williams, T.F. 95 Wolff, H.W. 109 Wright, D.P. 37, 115 Zakovitch, Y. 120–122

Thompson, J.A. 100

Subject Index Accident 64–68, 93, 97, 109, 127, 128– 130, 141 Ambush 94, 137 Anglo–Saxon law 8–9 Arrangement 106–107, 125–126, 132, 137, 146 Assembly 72, 76–77, 92, 98–103, 105, 146–147, 158, 161 Authority of the law 7–8, 11–12, 28 Avenger of blood 54, 68, 69–73, 75, 86, 92–93, 95, 98–105, 112–113, 123, 130, 133, 137–141, 146–147, 157– 158, 161 Biblical Codes 38, 43, 160 – Covenant code 35–38, 44, 114–116, 141, 157 – Deuteronomic code 38, 44, 123 Blood 51, 54, 59–60, 69–73, 75, 82, 86, 92, 96, 98–107, 110–112, 123, 130, 133, 136–141, 146–147, 157, 161 Blood shedding 54 Blood vengeance 59–60, 71, 73, 75, 92, 96, 106–107, 110, 112–113, 141, 157 Book of Numbers 1–5, 25, 27, 29, 38– 39, 41–44, 46, 49, 60, 86, 96, 106, 146, 150, 159–160 – structure 38–42 – legal material 41–44 Bribery 109 Capital punishment 49, 58–59, 61, 120 Capital sentence 92–93, 107, 109–110 Casuistic precepts 25, 115, 127, 129 Cities of asylum 45, 47, 49, 57, 78, 96, 104, 111, 121, 131

Cities of refuge 1–3, 46–49, 51–57, 60, 68–69, 72–75, 78–80, 84, 86–87, 95, 101, 103–104, 107, 109–110, 114, 121–127, 129–136, 139–141, 145– 146, 148, 150, 153, 156–158, 160– 161 Clan 32–33, 53, 69–70, 82 Classification of biblical laws 31–37 – situational criterion 35–36 – internal criterion 36–37 Codex of Hammurabi 16–17, 20–21, 24–25, 35 Commandments 7, 102, 118, 135–136, 140 Community 6, 12, 32–34, 58–59, 69, 72, 77, 83, 98, 102–103, 111, 116 Consciousness 64–67, 127, 160 Covenant 26–28, 31, 35–38, 44, 59, 111, 114–116, 120–121, 136, 140–141, 157, 159 Crime 31–33, 37, 59–60, 75, 80, 91, 93, 103–104, 108–109, 111–112, 127– 128, 130–131, 140–141 Critica textus 139, 149 Cultic texts 63, 78, 116, 132 Death 33, 58–60, 66–67, 71, 73, 90–95, 98, 103–104, 107–111, 114–115, 119, 127–130, 132, 138–139, 145– 147, 157 Decalogue 31, 58, 60, 116–118 Democracy 76–77 Deuteronomic legislation 86, 122–141 Distraction 63, 67 Divine speech 46, 50 Eduba 22 Egyptian Juridical Collections 17–19 Elders 77, 138–139, 141, 146–147, 150, 158

184

Subject Index

Enmity 60, 95, 97–98, 123 Error 63–64, 66, 68, 155 Family 14, 32–33, 69–72, 75, 82, 92, 96, 114, 130, 141 Fault 63–64 Fear 129, 135 Foreigner 81–84 Formgeschichte 122 Fulfilment report 156, 158 Guilty 33, 61, 64, 91, 104–105, 109, 112, 137, 139 Hatred 60, 93–94, 127, 132, 137 High priest 103–104, 110, 146–147 Homicide 3, 5, 38, 44–45, 47–52, 54, 57, 59–61, 67–75, 80, 84–87, 89–92, 95–99, 101, 103–104, 106–109, 111, 113–116, 119–123, 125–131, 136– 138, 140–141, 148, 155, 157–158, 160–161 – inadvertent 47, 51, 54, 59–60, 64–67, 72–74, 80, 85–87, 99, 122, 157–158, 160 – unintentional 44, 50–51, 67–68, 71, 75, 84–85, 89–90, 95–98, 107, 111, 120, 123, 128–130, 136, 157–158 – involuntary 48, 51, 59, 111, 113, 120, 155 – malicious 51, 60, 85, 87, 89–91, 95, 97, 99, 107 – unwitting 60, 74–75, 86–87, 127 – deliberate 38, 59, 61, 92, 107, 120, 161 Ignorance 63, 66 Illegal killing 59, 136 Inadvertence 61–62, 64–67, 85, 155 Industrialisation 14 Intentionality 90, 93, 98, 129, 137 Interdependence 157 Israelite society 69, 71 Jewish law 5–6 Judge 11–13, 20–21, 105 Judgement 12, 21, 72, 75, 78, 80, 87, 98–99, 101–102, 105–106, 113, 130, 146–147, 161

Juridical models 9–15 – Evolutionism 9–10 – Diffusionism 10–11 – statutory 11–12, 14 – customary 12–13 – static 12–16 – dynamic 12–16 Jus personae 84, 102, 106, 137 Jus soli 84, 102, 106, 137, 158 Justinian code 7, 20, 108 Killer 45, 48, 54, 57, 59–60, 62, 67, 69, 71–75, 78, 85, 87, 90–94, 98–112, 114, 120, 122 “Law in action” 15–16, 19 “Law of tort” 31 Legal conflicts 32–34 Legal systems 5–27 Legal texts 5–27 Levites 46–47, 78 Levitical cities 47–49, 78 Lex talionis 71, 91, 123, 161 Liability 105 Manslaughter 44, 89–90, 93, 96–98, 107, 125, 127, 139–140 Mesopotamian juridical collections 16– 19, 20–22, 24–26, 71, 76 Mishpat, mishpatim 114–122, 141 Montesquieu 21 Munus iudicandi 12 Murderer 33, 47, 57, 59–60, 71, 74, 85, 92, 98–99, 101, 136–139, 141, 146, 158 Negligence 63, 66 Orphans 82 Outlaw 105 Pandects 10 Persian Laws 17 Personae miserae 82 Precaution 129 Predominance of action 8 Premeditation 93–96, 146–147 Priests 64, 153 Private justice 75, 140

Subject Index Procedure 21, 33–34, 44, 47, 90, 93, 99, 104, 108, 113, 118–119, 130, 136 Promised land 40, 46, 51, 53–54, 79, 133, 140 Protection 69, 72, 81–82, 103–105, 109–110, 112, 132, 146–147 Punishment 31, 33, 46, 49, 58–61, 91, 108 Ransom 108–110 Reform of Josiah 132 Reformulation 45–112 Resident 81–84 Revenge 75, 104, 113, 133, 141, 158, 161 Roman law 7–8 Romanticism 13 Settlement law 33–34, 108 Sin 63–65, 140 Slayer 98

185

Sumerian laws 16, 22 Torah 38, 42, 45, 103, 105, 108, 112, 123, 142, 158, 161 Transitional law 75 Unconsciousness 65, 127 Unwittingness 60, 74–75, 86–87, 127 Urban society 14 Vendetta 75, 92, 99 Vengeance 54, 59–60, 69, 71, 73, 75, 86, 92, 96, 102, 106–107, 110, 112–113, 130, 139, 141, 157 Volksgeist 12 War 32, 58, 75 Widows 82 Wilful case 90–95 Witness 66, 108