Law and Religion in the Eastern Mediterranean: From Antiquity to Early Islam [Illustrated] 0199550239, 9780199550234

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LAW AND RELIGION IN THE EASTERN MEDITERRANEAN

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Law and Religion in the Eastern Mediterranean From Antiquity to Early Islam

Edited by

ANSELM C. HAGEDORN AND REINHARD G. KRATZ

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Great Clarendon Street, Oxford OX2 6DP, United Kingdom Oxford University Press is a department of the University of Oxford. It furthers the University’s objective of excellence in research, scholarship, and education by publishing worldwide. Oxford is a registered trade mark of Oxford University Press in the UK and in certain other countries. © Oxford University Press 2013 The moral rights of the authors have been asserted First published 2013 Impression: 1 All rights reserved. No part of this publication may be reproduced, stored in a retrieval system, or transmitted, in any form or by any means, without the prior permission in writing of Oxford University Press, or as expressly permitted by law, by licence, or under terms agreed with the appropriate reprographics rights organization. Enquiries concerning reproduction outside the scope of the above should be sent to the Rights Department, Oxford University Press, at the address above You must not circulate this work in any other form and you must impose this same condition on any acquirer British Library Cataloguing in Publication Data Data available Library of Congress Cataloging in Publication Data Data available ISBN 978–0–19–955023–4 As printed and bound by CPI Group (UK) Ltd, Croydon, CR0 4YY

Acknowledgements When a project comes to a close it is a pleasure to thank those who have contributed significantly to it success. First of all we would like to thank the contributors involved for their fine articles and their patience with editorial delays and numerous queries. Also we thank Christian Kruse and Andrei Popescu for the invaluable help when preparing the manuscript for publication and Helge Bezold for preparing the index. Finally, we would like to express our deepest thanks and gratitude to Hilary O’Shea from Oxford University Press for her enthusiasm, patience, and always helpful advice. A.C.H. R.G.K. June 2013

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Contents List of Figures List of Tables List of Contributors List of Abbreviations Introduction

ix x xi xiii 1

Part I 1. The Sound of the Magic Flute in Legal and Religious Registers of the Ramesside Period: Some Common Features of Two ‘Ritualistic Languages’ Arlette David

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2. Law and Religion in Achaemenid Iran Josef Wiesehöfer

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3. Law and Religion in Early Greece Michael Gagarin

59

4. Gods, Kings, and Lawgivers F. S. Naiden

79

5. Hated by the Gods and your Spouse: Legal Use of AN$ in Elephantine and its Ancient Near Eastern Context Alejandro F. Botta

105

6. The Aramaic Law of Sale Considered from the Papyrological and Rabbinic Evidence Andrew D. Gross

129

7. Fines and Curses: Law and Religion among the Nabataeans and their Neighbours John F. Healey

165

Part II 8. Law and Religion in the Hebrew Bible Bernard S. Jackson

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Contents

9. The History of the Legal-Religious Hermeneutics of the Book of Deuteronomy from the Assyrian to the Hellenistic Period Eckart Otto 10. ‘The peg in the wall’: Cultic Centralization Revisited Reinhard G. Kratz

211 251

11. Is It Law or Religion? Legal Motivations in Deuteronomic and Neo-Babylonian Texts Bruce Wells

287

12. Job’s Compositional History One More Time: What Its Law Might Contribute F. Rachel Magdalene

311

13. ‘For the judgment is God’s’ (Deut. 1: 17): Biblical and Communal Law in the Dead Sea Scrolls Aharon Shemesh

347

14. The Jurist as a Mujtahid––the Hermeneutical Concept of Abu ¯¯ l-H . asan Alı¯ al-Ma¯wardı¯ (d. 449/1058) Irene Schneider

365

Index of References

397

List of Figures Figure 1.1 A graphic representation of retributive justice polarity in the Book of the Dead: Papyrus of Ani, 19th dynasty (from Wilkinson (1992), 76 n. 1)

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Figure 1.2 Opening the mouth of the deceased statue in Seti I’s tomb, corridor H (from Rosellini (1832–1844), pl. LXII)

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Figure 1.3 Two thousand years separate these two representations of the king smiting his enemies: palette of Narmer (from Gardiner (1957), 7) and Ramesses III on Medinet Habu’s first pylon (from LD III: 209d)

34

Figure 9.1 Structure of the Covenant Code

214

Figure 9.2 Restructure of the Covenant Code in Deuteronomy

216

Figure 9.3 Summary of the literary history of Deuteronomy

233

Figure 9.4 Summary of the literary history of Deuteronomy as part of the Hexateuch and Pentateuch

239

List of Tables Table 6.1

Conveyances discovered at Nah.al H . ever and Wadi Murabba‘at

130

Table 6.2

Nabataean Aramaic investiture and reaffirmation clauses

143

Table 6.3

Jewish Aramaic investiture clause

147

List of Contributors Alejandro F. Botta is Associate Professor of Hebrew Bible, Boston University (USA) Arlette David is Senior Lecturer in Egyptology, Hebrew University Jerusalem (Israel) Michael Gagarin is James R. Dougherty, Jr., Centennial Professor of Classics, University of Texas/Austin (USA) Andrew D. Gross is Assistant Professor, Department of Semitic and Egyptian Languages and Literature, The Catholic University of America (USA) Anselm C. Hagedorn is Privatdozent in Hebrew Bible/Old Testament. Humboldt-Universität zu Berlin (Germany) John F. Healey is Professor of Semitic Studies, University of Manchester (UK) Bernard S. Jackson is Professor of Law and Jewish Studies, Liverpool Hope University (UK) Reinhard G. Kratz is Professor of Hebrew Bible/Old Testament, Georg-August-Universität Göttingen (Germany) F. Rachel Magdalene is Visiting Research Scholar, Institut für Alttestamentliche Wissenschaft, Universität Leipzig (Germany) Fred S. Naiden is Associate Professor of Ancient History, University of North Carolina at Chapel Hill (USA) Eckart Otto is Professor of Hebrew Bible/Old Testament emeritus, Ludwig-Maximilans-Universität München (Germany) Irene Schneider is Professor of Arabic, Georg-August-Universität Göttingen (Germany) Aharon Shemesh is Associate Professor Department of Talmud, Bar-Ilan-University (Israel) Bruce Wells is Associate Professor of Hebrew Bible, Saint Joseph’s University, Philadelphia (USA)

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List of Contributors

Josef Wiesehöfer is Professor of Ancient History, ChristianAlbrechts-Universität Kiel (Germany)

Abbreviations AJA ÄAT AfO AnBib AncB ANE AOAT ASNSP ASNSP.L ATD AThANT BaghM BASOR BBB BDB Ber. BEThL BFChTh BHTh Bib BibOr BiLiSe BJSt BThSt BWANT BZAR BZAW CAD CBQ CDOG CEDANT

American Journal of Archeology Ägypten und Altes Testament Archiv für Orientforschung Analecta biblica Anchor Bible Ancient Near East/Eastern Alter Orient und Altes Testament Annali della (R.) Scuola Normale Superiore di Pisa Annali della (R.) Scuola Normale Superiore di Pisa. Lettere, storia e filosofia Das Alte Testament Deutsch Abhandlungen zur Theologie des Alten und Neuen Testaments Baghdader Mitteilungen Bulletin of the American Schools of Oriental Research Bonner biblische Beiträge F. Brown, S.R. Diver and C.A. Briggs, A Hebrew and English Lexicon of the Old Testament (Oxford: Clarendon Press, 1907) Berytus. Archeological studies Bibliotheca Ephemeridum Theologicarum Lovaniensium Beiträge zur Förderung christlicher Theologie Beiträge zur historischen Theologie Biblica Biblica et orientalia Bible and literature series Brown Judaic studies Biblisch-theologische Studien Beiträge zur Wissenschaft vom Alten und Neuen Testament Beihefte zur Zeitschrift für Altorientalische und Biblische Rechtsgeschichte Beihefte zur Zeitschrift für die alttestamentliche Wissenschaft Chicago Assyrian Dictionary Catholic biblical quarterly Colloquien der Deutschen Orient-Gesellschaft Pubblicazioni del CEDANT (=Centro di studi e ricerche sui diritti antichi)

xiv CEv Suppl. CH CHJ CL CM COS CP CQ CT CTA CTBT DJD D.S. DS DSD EHS EIr ErF ErIs ESHM ET FAOS FAT FGrH FRLANT GCCI Gilg GOF.RÄ GRBS GT H

HAR HAT HAW HBM HBS

Abbreviations Supplement aux cahiers evangile Codex Hammurabi Cambridge Historical Journal Codex Lipit-Ishtar Cuneiform Monographs Cambridge oriental series Classical philology Classical Quarterly A. de Buck, A. (ed.), The Egyptian Coffin Texts (7 vols.; Chicago: Oriental Institute Publications, 1935–1961). Corpus des tablettes en cuneiforms alphabétiques découvertes à Ras shamra-Ugarit de 1929–1939 Cuneiform texts from Babylonian tablets in the British Museum Discoveries in the Judean Desert Diodorus Siculus Diocles of Syracuse Dead Sea Discoveries Europäische Hochschulschriften Encyclopaedia Iranica Erlanger Forschungen Eretz Israel European Seminar on Methodology in Israel’s History English translation Freiburger altorientalische Studien Forschungen zum Alten Testament F. Jacoby (ed.), Die Fragmente der griechischen Historiker (Leiden: Brill, 1957ff). Forschungen zur Religion und Literatur des Alten und Neuen Testaments Goucher College Cuneiform Inscriptions The Epic of Gilgamesh Göttinger Orientforschung. Reihe 4, Ägypten Greek, Roman and Byzantine studies German title F. Healey, The Nabataean Tomb Inscriptions of Mada’in Salih (Journal of Semitic Studies Supplement 1; Oxford: Oxford University Press, 1993). Hebrew Annual Review Handbuch zum Alten Testament Handbuch der Altertumswissenschaft Hebrew Bible Monographs Herders biblische Studien

Abbreviations HdO HebStud HR HSCP HSM HSS HThK.AT HThR HUCA IES IFAO IG IJMES IUSS JANER JAOS JBL JBL.MS JBQ JCS JDS JEA JEOL JJLG JJS JNES JPA JS JSIJ JSJ.S JSOT JSOT.S JSSt KAT Klio.B LÄ LÄS LD LE

xv

Handbuch der Orientalistik Hebrew Studies History of religions Harvard Studies in Classical Philology Harvard Semitic monographs Harvard Semitic Studies Herders Theologischer Kommentar zum Alten Testament Harvard Theological Review Hebrew Union College Annual Israel Exploration Society Institut français d’archéologie orientale Inscriptiones Graecae International Journal of Middle East studies Instituto Universitario di Studi Superiori Journal of Ancient Near Eastern Religion Journal of the American Oriental Society Journal of Biblical Literature Journal of biblical literature monograph - from 1970 SBL.MS The Jewish Bible Quarterly Journal of cuneiform studies Judean Desert studies Journal of Egyptian archeology Jaarbericht van het Vooraziatisch-Egyptisch Genootschap ‘Ex Oriente Lux’ Jahrbuch der Jüdisch-Literarischen Gesellschaft Journal of Jewish studies Journal of Near Eastern studies Jewish Palestinian Aramaic Journal des s(ç)avants Jewish Studies, an Internet Journal Supplements to the Journal for the Study of Judaism Journal for the Study of the Old Testament Journal for the Study of the Old Testament. Supplement series Journal of Semitic studies Kommentar zum Alten Testament Klio Beiheft W. Helck, and W. Westendorf, (eds.), Lexicon der Ägyptologie (Wiesbaden: Harrassowitz, 1975–1989). Leipziger Ägyptiologische Studien R. Lepsius , Denkmäler aus Ägypten und Äthiopien (12 vols.; Berlin: Nicolaische Buchhandlung 1849–1859). Laws of Eshnunna

xvi LH LHBOTS LRWS LSJ

LXX MAL MBPF MDAI.K MFA Mn.S MorS MoTh MThA MThZ Nbn ND NF NICOT/ NICNT NIN NSK.AT NTS OBO ÖBS OLZ Or.NS OTL OTS OTSt PÄ PAT PFES PRSt PRU QD RA RB

Abbreviations Laws of Hammurabi Library of Hebrew Bible/Old Testament Studies Leipziger rechtswissenschaftliche Studien H.G. Liddell and R. Scott, A Greek_English Lexicon. A New Edition Revised and Augmented throughout by H.S. Jones with the assistance of R. McKenzie (9th ed. Oxford: Clarendon Press, 1940). Septuagint Middle Assyrian Laws Münchener Beiträge zur Papyrusforschung und antiken Rechtsgeschichte Mitteilungen des Deutschen Archäologischen Instituts. Abteilung Kairo Museum Francisceum annales Mnemosyne Supplement Moreshet series Modern Theology Münsteraner Theologische Abhandlungen Münchner Theologische Zeitschrift Nabonid Inscriptions Nimrud Neue Folge New International Commentary on the Old Testament/ on the New Testament NIN. Journal of Gender Studies in Antiquity Neuer Stuttgarter Kommentar. Altes Testament New Testament Studies Orbis biblicus et orientalis Österreichische biblische Studien Orientalische Literaturzeitschrift Orientalia. Nova series Old Testament library Oudtestamentische Studiën Old Testament Studies Probleme der Ägyptologie D.R. Hillers, and E. Cussini, Palmyrene Aramaic Texts (Baltimore/London: Johns Hopkins University Press, 1996). Publications of the Finnish Exegetical Society Perspectives in Religious Studies Palais royal d´Ugarit Quaestiones disputatae Revue d’assyriologie et d’archéologie orientale Revue Biblique

Abbreviations RBL RdQ RE REI RGG4

RIDA RS RVV SAA SAAS Saec. SBAB SBL SBL.MS SBS SBT ScEs SCI ScrHie SDIO SEG SESJ SHCANE SJLA StIsl StP.SM StTDJ TAD

TAPA TCL TCS TDOT ThLZ ThR ThW ThWAT

xvii

Review of Biblical Literature Revue de Qumran Pauly’s Realencyclopädie der classischen Altertumswissenschaft Revue des Études Isiamiques H.D. Betz, D.S. Browing, B. Janowski, E. Jüngel (ed.), Religion in Geschichte und Gegenwart (8 vols; 4th. ed. Tübingen: Mohr-Siebeck, 1998–2005). Revue internationale des droits de l’antiquité Ras Shamra Religionsgeschichtliche Versuche und Vorarbeiten State Archives of Assyria State Archives of Assyria Studies Saeculum Stuttgarter biblische Aufsatzbände Society of Biblical Literature Society of Biblical Literature. Monograph Series Stuttgarter Bibelstudien Studies in Biblical Theology Science et esprit Scripta Classica Israelica Scripta Hierosolymitana Studia et documenta ad iura Orientis antiqui pertinentia Supplementum Epigraphicum Graecum Suomen Eksegeettisen Seuran julkaisuja Studies in the History (and Culture) of the Ancient Near East Studies in Judaism and late antiquity Studia Islamica Studia Pohl. Series maior Studies on the Texts of the Desert of Judah B. Porten, and A. Yardeni, Textbook of Aramaic Documents from Ancient Egypt 1–3 (Jerusalem: The Hebrew University, 1986–1993). Transactions of the American Philological Association Textes cunéiforms. Musées de Louvre Texts from cuneiform sources Theological Dictionary of the Old Testament Theologische Literaturzeitschrift Theologische Rundschau Theologische Wissenschaft G.J. Botterweck, H. Ringgren and H.-J. Fabry (ed.), Theologisches Wörterbuch zum Alten Testament (8 vols.; Stuttgart: Kohlhammer, 1973–1995).

xviii TS TSAJ UF URAÄ USAMNEC VT VT.S VTE WMANT WZKM YES YNER YOS YOS.B ZA ZAR ZÄS ZAW ZDMG ZPE ZSRG ZThK

Abbreviations Theological Studies Texte und Studien zum antiken Judentum Ugarit-Forschungen Urkunden zum Rechtsleben im alten Ägypten Uppsala Studies in Ancient Mediterranean and Near Eastern Civilizations Vetus Testamentum Vetus Testamentum. Supplements Vassal-Treaties of Esarhaddon Wissenschaftliche Monographien zum Alten und Neuen Testament Wiener Zeitschrift für die Kunde des Morgenlandes Yale Egyptological studies Yale Near Eastern researches Yale Oriental Series Yale Oriental Series. Babylonian Texts Zeitschrift für Assyriologie Zeitschrift für altorientalische und biblische Rechtsgeschichte Zeitschrift für ägyptische Sprache und Altertumskunde Zeitschrift für die alttestamentliche Wissenschaft Zeitschrift der Deutschen Morgenländischen Gesellschaft Zeitschrift für Papyrologie und Epigraphik Zeitschrift der Savigny-Stiftung für Rechtsgeschichte Zeitschrift für Theologie und Kirche

Introduction Anselm C. Hagedorn and Reinhard G. Kratz

Both the notion of the Mediterranean and the prominent role of law and religion in pre-industrial societies have received the renewed interest of scholars of ancient history as well as of anthropologists.1 However, despite similar terminology and often similar topics addressed in the legal material of the societies bordering the shores of the Eastern Mediterranean a collection of articles addressing the role of law and religion has thus far been missing. Of course a sacred law from the island of Cos is not the same as a sacred stipulation from the book of Leviticus or a law regarding the right practice of a sacrifice from Nineveh, but how are these differences and similarities to be explained? How is it possible that Greeks often tended to write their laws on the walls of their temples but never transformed their written civic laws into religious law, as happened for example in the Hebrew Bible? Does it matter whether laws are inscribed in stone, clay, or a scroll? And, above all, how does (written) law shape a society in which not everybody can read? These are just a few questions that arise from a comparative standpoint when looking at the relation of and interplay between law and religion. In contrast to other collections addressing various aspects of law and religion in one particular society (e.g. ancient Greece) or cultural realm (e.g. the ancient Near East), the present volume will broaden the interpretative framework by looking beyond the individual society. The contributions gathered here will encompass the notion of law and religion in the Eastern Mediterranean in both the geographical and the historical dimension. This collection will 1

See e.g. the essays collected in Harris (2005).

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Anselm C. Hagedorn and Reinhard G. Kratz

bring together, for the first time, scholars of the Hebrew Bible, ancient Greece, the ancient Near East, Qumran, Elephantine, the Nabataeans, and the early Arab world. The omission of the cuneiform material is not an accident. Rather it was a considered decision, as these texts have been studied for a long time in comparison to the biblical material and the fruits of this century-long study can be seen in a variety of collections and contributions.2 As will be apparent from the contributions, the cuneiform material is a constant point of reference, especially for the study of biblical law.3 The main focus of the present volume is the two defining features of ancient societies in the Eastern Levant, namely ‘Law’ and ‘Religion’ and their relationship and interplay as a starting point for an evaluation of cultural similarities and differences across geographical and historical space. In this light we aim to investigate the rich legal tradition of the Eastern Mediterranean. Here we will propose an evaluation of the tension between law and religion as two cultural (sub)systems (C. Geertz) within society that compete for absolute power. We are interested in the question of how these two systems exist next to each other in either harmony or conflict and what strategies are employed in ancient societies to fuse both concepts in a meaningful unity that will govern society. Our collection recognizes the unity of the Mediterranean in a Braudelian sense (Braudel (1966) and (1998)), i.e. seeing the Mediterranean Sea as well as its adjoining variety of geographical entities as providing the longue durée that shapes (and is shaped by) historical periods and concrete social developments.4 As such we take the grammar of the term ‘Mediterranean’ seriously, seeing it as a quality rather than an object, an indicator of place rather than the place itself.5 2 Out of the plethora of studies see e.g. the comparative essays collected in Levinson (1994), the essays in Otto (2008) and the detailed study of the relationship between the Covenant Code and the Laws of Hammurabi in Paul (1970) and Wright (2009). 3 Also the relationship of the cuneiform legal material to the Mediterranean world can be debated. R. Westbrook (2009), 21–72, 303–27 has forcefully argued a ‘shared tradition’ that links the legal thinking of the Ancient Near East with GraecoRoman traditions. As a result he sees ancient Near Eastern, Biblical, Greek, and Roman legal material as part of a ‘common law’; for a critique of Westbrook see Hagedorn (2004), 60–2 and Otto (2008), 56–9. 4 The literature on Braudel’s approach to the Mediterranean is literally legion; for an overview in Burke (2002), 123–41 and Driessen (1999), 53–63. 5 On the problem of defining the Mediterranean see e.g Argyrou (2001), 25–38, Ben-Artzi (2004), 2–15, and Purcell (2003), 9–29.

Introduction

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Already in this observation of the grammar one realizes that the Mediterranean is out there, not only for the countries and societies that border it but also for scholars, tourists, poets, and geographers. Therefore it is hardly surprising that the Mediterranean exists as the subject of a variety of discourses (Horden (2005), 25), that are determined by the different national, scholarly, and popular positions of the partakers in such a discourse (Sant Cassia and Schäfer (2005), 1–23). The often-quoted soundbite from Plato (Phaedo 109b), who describes the bordering people as frogs sitting around a pond, making the pond, i.e. the Mediterranean, the uniting and determining feature of his concept of ‘frogness’ is above all an expression of limitation rather than an invitation to cross-cultural study. The idea of Plato is later picked up in post-Second World War anthropology and its scholarly construct of ‘Mediterraneanism’ and the invention of ‘Mediterranean culture’ (Davis (1977)) with a unifying set of values (Peristiany 1965). Such broad concepts have evoked justified criticism (Pina-Cabral (1989), 399–406) since these unifying notions seem to ‘gloss over important local differences and that its mutual entailment with the so-called Mediterranean culture area led to circular argumentation and self-fulfilling prophecies’ (Herzfeld (2001), 266) as well as ignoring the status of the ethnographic research as a descriptive process (Herzfeld (1987), 6). Michael Herzfeld is, therefore, rightly posing the question for the interests served by boiling down cultural traits to a mere essence called ‘Mediterranean culture’: Whose interests are served by essentializing ‘Mediterranean culture’, and how is this reproduced in everyday social life? It is not that ‘the Mediterranean’ does not exist; it exists as a representation. But even relatively hardlining objectivists recognize the contingent aspect of reality and the role that representation can play in furthering violence and devastation. (Herzfeld (2001), 266)

Despite these criticisms there is a certain resistance of the category called ‘Mediterranean’ to destruction and reconstruction. This seems to be a valid starting point for continuing research: For the idea that the Mediterranean is more interesting as a local category than as an analytic tool is hardly novel anymore. What I find extraordinary, then, is the curious circumstance that, in an age in which just about every other category has been deconstructed or reconstructed, or at least has

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self-destructed, ‘the’ Mediterranean has shown a remarkable tenacity in the face of a barrage of critiques––indeed that barrage has at times seemed simply to confirm its general importance. And that, in my view, is a thoroughly weighty reason for taking it seriously. (Herzfeld (2005), 46)

Rather than postulating any broad-sweeping generalizations we will embark on a journey of small-scale comparisons (J. de Pina-Cabral) offering particular insights from a particular historical epoch or textual tradition. The existence of the Mediterranean as a single distinctive region or entity has to be debated (Herzfeld (2005)) and even if the focus is the Mediterranean Sea and the cultural regions that border it, one should not disregard the impact of its connectivity with other (geographical) places and spaces (Horden and Purcell (2006), 722–40). The notion of connectivity over space and time in regard to concepts and ideas features prominently in the collection. Despite this interconnectedness all contributions are aware that wide-ranging literary dependencies are most difficult to prove or establish. The chapters are grouped in two categories. Those in Part I assess the relationship between law and religion in the non-biblical material; when biblical material is used in this section it functions as a benchmark. Here a wide variety of sources are investigated. At the same time the chapters provide a geo-historical context for the notion of the two concepts in the Eastern Mediterranean as they move from Pharaonic Egypt to Ancient Iran and Greece before returning to Achaemenid and Hellenistic Egypt as well as Palestine. Despite the broad geographical and chronological scope these articles are nevertheless connected to essays in Part II as they attest to the flourishing legal tradition in the Mediterranean and––at the same time––offer insights for small-scale-comparisons that do take regional variations seriously. Arlette David opens the volume by taking us to Pharaonic Egypt, where she investigates the highly ritualistic language and artistic representation of legal discourse in Ramesside Egypt. The centrality of the figure of the king in religious and legal discourse is the topic of Josef Wiesehöfer’s study of law and religion in Achaemenid Iran, providing a background for the literary development of much of the biblical material of the post-exilic period. The role of law in Greece is investigated by Michael Gagarin and Fred S. Naiden. While Gagarin takes up the vexed issues surrounding

Introduction

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Greek sacred law, focusing on asebeia and hierosylia as the two main offences known from Athenian sources, Naiden offers a comparative study of law highlighting the similarities and differences between the Greek world and the Near Eastern and biblical material. Firmly refuting diffusion as a possible explanation for the similarities, he follows Raymond Westbrook in arguing for a legal koine in the Eastern Mediterranean––feature that will again be taken up by Bruce Wells in the second part of the book. Continuity and diversity as well as the connectedness to surrounding legal and cultural traditions form the centre of Alejandro Botta’s study on the use of the verb ‘to hate’ in Elephantine. He classifies AN$ as a legal term in the papyri from the Jewish military garrison in Egypt and evaluates its semantic field. This is done by connecting the Hebrew/Aramaic term to Egyptian and cuneiform texts. Thus a legal grammar originates that aptly shows that AN $ and its cognates are employed to describe a cessation of relationship and the distanciation of the parties., i.e. being the technical term for divorce. With Andrew Gross’s contribution we have arrived in Palestine. He focuses on the study of the legal material from the Dead Sea as we encounter it in the numerous papyri composed in Greek, Hebrew, Jewish Aramaic, and Nabataean Aramaic. These fascinating documents illuminate the complex cultural nexus in the Eastern Mediterranean. Though from the 1st and 2nd centuries bce these texts emerge as part of centuries-old legal tradition. This insight enables Gross to trace the deeds of sale through the ages as well as offering insights into the continuity and diversity of legal cultures in the Mediterranean. John F. Healey’s ‘Fines and Curses: Law and Religion among the Nabataeans and their Neighbours’ supplements the papyrological study by A. Gross and looks at the rich body of Nabataean inscriptions. He emphasizes the importance of Nabataean law that has to be studied as an entity in itself and only then to be compared to Jewish law from the same period. Part II will address especially the biblical material within its ancient Mediterranean context. Here the term ‘biblical’ is used in a broad sense, as the reception of the legal tradition of the Hebrew Bible in the material from Qumran will be subsumed under the same heading.

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Bernard S. Jackson’s programmatic chapter, ‘Law and Religion in the Hebrew Bible’ calls for a ‘hermeneutics of suspicion’ in regard to the term ‘law’––especially so if one wants to avoid any confusion with modern, positivist legal connotations. Since we do not possess any documents of positive law from ancient Israel, it is necessary from the outset to draw attention to the religious character of biblical law. Jackson investigates the interplay between human and divine administration of justice and the various metaphors derived from legal practice that are used to describe the relationship between Israel and its God. These conceptual observations are expanded by Eckart Otto who offers a diachronic analysis of the transformation of biblical law into Torah in both historical and literary perspective. He traces and illuminates the difficult literary history of Deuteronomy from its beginnings in the Assyrian Period to Hellenistic times. Otto sees the historical anchor of the earliest parts of Deuteronomy in both the revision of the Covenant Code and in the application of NeoAssyrian treaty rhetoric to Israel’s relationship with Yahweh. As such Deuteronomy has its beginnings in a document of reform during the Josianic period. Reinhard G. Kratz and Bruce Wells critically engage with several of Otto’s proposals attesting to the wide variety of approaches and interpretative possibilities in the exegesis of Deuteronomy. Kratz takes to task scholars who draw heavily on extra-biblical material in support of a cultic centralization in Judah during the time of Josiah. After a careful review of the Ancient Near Eastern evidence, Kratz concludes that the extra-biblical parallels provide the religioushistorical prerequisites of the idea of centralization but they cannot be regarded as direct parallels or as the basis for dating the biblical text. He agrees with Otto, however, that both Deuteronomy’s revision of the Covenant code and the idea of centralization remain most important criteria for tracing the literary history of the book. Wells, in contrast, offers a critical evaluation of the often-claimed innovative potential of Deuteronomy. This is done in recourse to Neo-Babylonian texts showing that Deuteronomy possesses substantial ties to the legal practice of its wider world. Like Kratz, Wells emphasizes the connectivity of the biblical text; using the notion of a shared tradition of biblical and Ancient Near Eastern law as advocated by Raymond Westbrook, Wells shows that Deuteronomy was a firm part of that tradition and that issues of predictability and

Introduction

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presentation significantly shaped the form of the biblical legal collections. The rich Neo-Babylonian literature of legal procedure again plays an important role in F. Rachel Magdalene’s reconstruction of the compositional history of the book of Job. Here, she utilizes insights from legal analysis for the interpretation of wisdom literature, connecting Job with Neo-Babylonian features of the genre of trail narratives. She argues that the book successfully uses metaphors based on trial procedure and shows how a careful legal analysis can illuminate sapiential material, thus emphasizing the centrality of legal thought outside the Torah. The contribution by Ahron Shemesh can be situated in the wider context of the afterlife of a biblical concept of law as the chapter attests to the rich legal tradition in Hebrew outside the canon of the Hebrew Bible in different geographical areas. Here Shemesh’s contribution on biblical and communal law in the Dead Sea Scrolls connects back to B. Jackson’s methodological observation that all biblical law is divine law. Shemesh too is careful to avoid the fallacy of introducing modern legal categories into the interpretation of Qumranic law. As a test-case he uses the frequently employed categories of ‘sectarian’ and ‘biblical’ law when speaking of the legal material in the Dead Sea Scrolls. While acknowledging the usefulness of the distinction on a literary level he is critical of the distinction when it comes to socio-legal analysis. Though it is clear from the documents themselves (e.g. Rule of the Community; Damascus Document) that the manifold stipulations devoted to communal rules may have their origin outside the Bible, the Qumran community never distinguishes between biblical and non-biblical law. This has to do with the status of the law after the Bible, when the divine connection of biblical law is transferred to every legal stipulation that governs the community. The collection closes with a contribution by Irene Schneider who offers a fascinating insight into Islamic religious and legal hermeneutics in the Middle Ages. She demonstrates the necessity of interpretation of divine law as attested in the judicial activity of ‘Alı¯ al-Ma¯wardı¯. The article shows how an unchangeable holy text is applied to an ever-changing reality. As such it can be rightly added to the rich stream of actualization and hermeneutical application of sacred texts significant for religious communities, These are processes that are still at work even when the canon has come to a close. At the

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Anselm C. Hagedorn and Reinhard G. Kratz

same time, the final chapter will point to avenues of further research. We hope that Schneider’s contribution serves as example and stimulus for further interdisciplinary studies in a broader context––i.e. a context that will begin to integrate the developments in Rabbinic and Islamic studies into the ongoing debate on law and religion.

REFERENCES Argyou, V. (2001), ‘The Mediterranean? Need One Ask or Reply?’, Anthropological Journal on European Cultures 10: 25–38. Ben-Artzi, Y. (2004), ‘The Idea of a Mediterranean Region in Nineteenth- to Mid-Twentieth-Century German Geography’, Mediterranean Historical Review 10: 2–15. Burke, P. (2002), ‘Civilizations and Frontiers. Anthropology of the Early Modern Mediterranean’, in J. A. Marino (ed.), Early Modern History and the Social Sciences. Testing Braudel’s Mediterranean. Sixteenth Century Essays & Studies Series 61; (Kirksville, Mo.: Truman State University Press), 123–41. Braudel, F. (1966), La Méditerranée et le monde Méditerranéan à l’époque de Philippe II, i. La Part du milieu. 3 vols. (Paris: Armand Colin). —— (1998), Les Mémoires de la Méditerranée. Préhistoire et Antiquité (Paris: Éditions de Fallois). Davis, J. (1977), People of the Mediterranean: An Essay in Comparative Social Anthropology. Library of Man (London: Routledge & Kegan Paul). Driessen, H. (1999), ‘Pre- and Post-Braudelian Conceptions of the Mediterranean Area. The Puzzle of Boundaries’, Narodna umjetnost, 36: 53–63. Hagedorn, A. C. (2004), Between Moses and Plato: Individual and Society in Deuteronomy and Archaic Greek Law. (FRLANT 204; Göttingen: Vandenhoeck & Ruprecht). Harris, W. V. (ed.) (2005), Rethinking the Mediterranean (Oxford: Oxford University Press). Herzfeld, M. (1987). Anthropology Through the Looking Glass: Critical Ethnography in the Margins of Europe (Cambridge: Cambridge University Press). —— (2001), ‘Performing Comparisons: Ethnography, Globetrotting, and the Spaces of Social Knowledge’, Journal of Anthropological Research 57: 259–76. —— (2005), ‘Practical Mediterraneanism: Excuses for Everything, from Epistemology to Eating’, in: W. V. Harris (ed.), Rethinking the Mediterranean (Oxford: Oxford University Press), 45–63.

Introduction

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Horden, P. (2005), ‘Mediterranean Excuses: Historical Writing on the Mediterranean since Braudel’, History and Anthropology 16: 25–30. Horden, P., and Purcell, N. (2000), The Corrupting Sea: A Study of Mediterranean History (Oxford: Blackwell). —— (2006), ‘The Mediterranean and “the New Thalassology” ’, American Historical Review 111: 722–40. Levinson, B. M. (ed.) (1994), Theory and Method in Biblical and Cuneiform Law: Revision, Interpolation and Development. (JSOT.S 181; Sheffield: Academic Press). Otto, E. (2008), Altrorientalische und biblische Rechtsgeschichte: Gesammelte Studien. (BZAR 8; Wiesbaden: Harrassowitz). Paul, S. M. (1970), Studies in the Book of the Covenant in the Light of Cuneiform and Biblical Law. (VT.S 18; Leiden: Brill). Peristiany, J. G. (ed.) (1965), Honour and Shame: The Values of Mediterranean Society. (The Nature of Human Society Series; London: Weidenfeld & Nicolson). Pina-Cabral, J. de (1989), ‘The Mediterranean as a Category of Regional Comparision: A Critical View’, Current Anthropology 30: 399–406. Purcell, N. (2003), ‘The Boundless Sea of Unlikeness? On Defining the Mediterranean’, Mediterranean Historical Review 18: 9–29. Sant Cassia, P., and Schäfer, I. (2005), ‘ “Mediterranean Conundrums”: Pluridisciplinary Perspectives for Research in the Social Sciences’, History and Anthropology 16: 1–23. Westbrook, R. (2009), Law from the Tigris to the Tiber: The Writings of Raymond Westbrook, i. The Shared Tradition, ed. B. Wells and R. F. Magdalene. (Winona Lake: Eisenbrauns). Wright, D. P. (2009), Inventing God’s Law: How the Covenant of the Bible Used and Revised the Laws of Hammurabi (Oxford: Oxford University Press).

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Part I

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1 The Sound of the Magic Flute in Legal and Religious Registers of the Ramesside Period: Some Common Features of Two ‘Ritualistic Languages’ Arlette David

‘Law is a religion’, wrote Winter,1 referring to modern procedural and linguistic aspects of the legal process. The court is viewed as a popular oracle delivering a moral pronouncement;2 it welcomes a staged ‘secular ritual’ characterized by repetitive patterns, playing and acting devices, special behaviours, order, evocative presentational style, and a polysemic collective message.3 ‘Litigation is a religious ritual: judges wear priestly robes; the participants have special, even honorific names; even simple forms of speaking are ritualized.’4 Affinities have been noted between modern legal and religious discourses: Charrow, Crandall, and Charrow,5 quoting Prof. Fred Rodell’s definition of legal language as ‘high class mumbo jumbo’, spoke of the ‘ritualistic quality of much legal discourse’ as conveying ‘greater credence to the power of the courts’. ‘Anyone confronted by a uniformed bailiff crying “Oyez, oyez, oyez”, demanding that “All please rise”, and requiring witnesses to state “the truth, so help you God” cannot but be impressed by the power of the law’.6 Both law ‘and its earlier form, religion’ have always relied increasingly on the written text, ‘and upon the interpretation and 1 3 5 6

2 Winter (1988), 1498. Winter (1986), 692–9. 4 Moore and Myerhoff (1977), 6–7. Winter (1988), 1498. Charrow, Crandall, and Charrow (1982), 181. Charrow, Crandall, and Charrow (1982), 181.

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control of their social practice in relation to a series of texts. (. . .) An intricate and exclusive system of disciplinary or dogmatic tools, the various forms of traditional exegesis and indeed of traditional and contemporary hermeneutics, were developed early and precisely to the effect of safeguarding and preserving the sanctity and general impenetrability of the written word as a system of social control, religious or legal’.7 Metaphors embedded in the legal discourse have a religious connotation: complaints end with ‘Wherefore, plaintiff prays for relief as follows . . . ’8 and faith-related concepts such as mala fides, l’acte fait foi, foi jurée, foi des traités 9 are commonplace.10 Grey11 understands constitutional law as scripture: ‘The maxim vox populi, vox Dei hints at the force of the analogy between Bible and Constitution.’ He noted that in ‘both religion and law, there is a familiar dialectic between one-source textualists [sola scriptura] and two-source supplementers [scriptura et traditio]’12 and that the Constitution may be viewed as a sacred symbol,13 ‘the scripture of a national civil religion’ which along ‘with the flag, (. . .) is one of the totems of our tribe’, displayed as ‘sacred relics’, on which state officials deliver an oath constituting ‘a ritual of allegiance’.14 Ross,15 relating to the metaphor used in criminal procedure contexts asserting ‘that excluded evidence is “the fruit of the poisonous tree” ’,16 emphasizes the reference to the parable of the Garden of Eden, and the themes of taint, taboo, and defilement. Danet17 emphasized the legal discourse poetization as rooted in ‘the magic power of words’, as did Mellinkoff 18 who underlined the prosodic features of the legal “liturgy” constructed on isotopy, rhythm, and on ‘respect for the magic potency of certain words’. Thus both law and religion use the same means to achieve an illusion of collective certainty. Tiersma19 names the legal jargon a ‘ritualistic language’, indicating ‘that this is a special occasion, quite different from ordinary discourse’ and perceives the architecture of the courtroom as one that heightens the ‘otherworldly impression’. The silence and proper attire of the observers indicate a religious respect for the 7 9 11 13 15 17 19

8 Goodrich (1987), 126–7. Tiersma (1999), 101. 10 David (2007), 11. See also Winter (1986), 695. 12 Grey (1984), 12, 17. Grey (1984), 7. 14 See also Tambiah (1979), 120–1. Grey (1984), 17–18. 16 Ross (1989), 1068 and nn. 35–6. Ross (1989), 1054–5. 18 Danet (1980), 543. Mellinkoff (1963), 438. Tiersma (1999), 100–1.

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ceremony’s authority, as would be expected during a religious service. As a sacred language, the legal speech is not always comprehensible to the crowd and is in fact not so designed; it is cryptic in nature.20 As the purpose of religion and law is to install order, coherence, and structure in a chaotic world, their ritual serves this objective by being a ‘repeated, coherently structured, and unified aspect of our experience’.21 Religious and legal performances alike are partly written and partly oral, and of course both literatures present numerous oral residues. These remarks about modern legal procedure and textual productions may be extended to a very ancient legal system that shows similar linguistic trends towards ritualism. Especially well documented is the Egyptian New Kingdom Period, a circumstance that allows a comparative analysis of the two registers. The Ramesside Period (19th–20th dynasties, c.1300–1100 bce) has bequeathed a rich body of legal texts: royal decrees (belonging to the normative genre) dealing with conflicts of authority, criminal law, endowments, and commissions;22 private law instruments such as wills, gifts, contractual dispositions, and memoranda of their execution (consentient legal genre);23 and documents related to legal proceedings in law courts (contentious genre).24 By means of forensic discourse analysis (study of the legal discourse in a lexical, syntactic, pragmatic, prosodic, and functional perspective),25 the main features of the various written legal registers associated with the already-mentioned genres can be distinguished.26

20

Danet (1980), 545. Lakoff and Johnson (1980), 233–4, on (religious) ritual, ‘an indispensable part of the experiential basis for our cultural metaphorical systems’. For formality, conventionality, stereotypy, and rigidity as features of ritual and the ‘little relevance’ of the distinction between religious and secular in that connection, see Tambiah (1979), 121–30. 22 23 David (2006). David (2010). 24 Partly covered by Allam (1973). 25 See Mellinkoff (1963); Bhatia (1993, 1994); Crystal and Davy (1969); Danet (1980, 1984, 1985, 1990); Charrow, Crandall, and Charrow (1982); Jackson (1995); David (2006); etc. 26 Genre: recurrent textual form associated with a specific language, subject, style, communicative purpose (e.g., the consentient legal genre); see Hodge and Kress (1988), 7. Register: ‘variety of language distinguished according to use (. . .). The crucial criteria of any given register are found in its grammar and lexis’ (Halliday, McIntosh, and Strevens (1964), 87–8). 21

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Some of these linguistic features are common to the forensic and religious Ramesside registers. Ramesside normative royal decrees evolved in complex and detailed dispositions with a fixed sequential arrangement, but remained based on archaic models and a formal style, using features imposed by a repertoire governing the production of the normative genre, but also of various religious texts. They deliberately used a careful blend of ‘high’ and ‘low’ linguistic varieties. The texts underwent a process of religious sacralization: the most significant of them were engraved on strategically placed stelae or public parts of temples in a richly adorned form, preceded or followed by a totally different register (eulogy for the reigning king, for instance) endowed with a politico-religious apparatus and with a pictorial scene of religious significance. Borderline cases belonging to the fuzzy edges of the legal and religious realms are not uncommon: some decrees use curses as sanctions for criminal acts, e.g. the Kanais decree (19th dynasty), Ramesses II’s Hittite Treaty (line 31); some expose a religious programme but use enacting clauses belonging to the legal register, e.g. the ‘Year 400’ Tanis decree (Cairo JE 60539) that was ordered by Ramesses II in honour of Seth, god of the dynasty. Note that the secular terminology for ‘royal decrees’ (wd_ ni-swt) is also used for divine decrees. In the consentient genre, wills exhibit structural and linguistic constants similar to those of religious registers (formulaic usage, archaisms, performative forms, binomials, and other prosodic features, as well as a specific dosage of ‘high’ and ‘low’ linguistic varieties). Furthermore, ritualized oral procedures may have preceded the record of the will, sometimes involving religious imprecations (curses have their place in the notary will as a residue of an oral procedure: see pAdoptions). As for the contentious genre, we may notice a religious involvement in secular litigation practices with the use of a divine oracle, perhaps given in the same judicial premises, as well as recourse to oaths27 invoking gods for evidence in secular trial contexts (as is the case in many modern courtrooms, where a solemn swearing to God, the corporal oath, opens a testimony to declare it is true and binding). A formalized discourse is also used in the record of trials, with 27 Concerning religiously anchored oracle and oath as instruments of a legal purpose in various cultures, see Schilling (1957), 21–6.

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conventional modes of expression, and probably very few, if any, true colloquial forms that did not undergo legitimization by the power-holders’ standard dialect. The language used in the court by the parties must have been far different from its written form. The Ramesside religious repertoire, on the other hand, encompasses many textual genres: funerary compositions in the context of the tomb (offering formulae28 and Anruf an Lebende 29 related to autobiographies,30 Book of the Dead 31 and other New Kingdom books of the Afterlife32), hymns to the gods and prayers,33 including ‘personal piety’34 liturgical songs,35 myths,36 temple and offering rituals,37 magical spells,38 oracles39 and divine decrees,40 etc. (of course, these genres may be combined in the sources). The purpose of this overview is to tackle a few linguistic shared features of legal and religious registers, besides the obvious formulaic structure inherent in both discourses, and to demonstrate that similar communicative purposes have led to parallel linguistic choices in the two fields.

1. CONTRASTED RETRIBUTIVE PRINCIPLE The customary presentation of symmetric, contrasted negative and positive behaviour based on a retributive principle is a common feature of both Ramesside wills and religious texts, and is not unknown in royal decrees as it embodies a primary principle of justice represented by Maat, a legal and moral/religious concept. 28

29 LÄ IV, 584–6, Barta (1982). LÄ I, 293–9, Müller (1975). LÄ I, 815–21, van de Walle (1975). Autobiographies may also appear on stelae and statues outside the realm of the tomb, mainly in temples and chapels. 31 LÄ VI, 641–3, Heerma van Voss (1986). 32 LÄ VI, 676–7, Hornung (1986). During the Ramesside Period these texts include the Books of the Netherworld (Amduat, Spell of the Twelve Caves, Book of the Gates, Book of Caverns, Book of the Earth), the Books of the Sky (Book of Nut, Book of the Day, Book of the Night), the Litany of Re, and the Book of the Heavenly Cow (see Hornung (1999)). 33 LÄ III, 103–10, Assmann (1980a); Barucq and Daumas (1980). 34 35 LÄ IV, 951–63, Brunner (1982). LÄ III, 852–5, Assmann (1980b). 36 LÄ IV, 277–86, Brunner-Traut (1982). 37 LÄ III, 839–48, Barta (1980); see also Barta (1968). 38 LÄ III, 1151–62, Altenmüller (1980a) and LÄ VI, 1320–55, Gutekunst (1986). 39 40 LÄ IV, 600–6, Kákosy (1982). LÄ II, 675–7, Otto (1977). 30

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Wilson41 believed that the Egyptians had a ‘deeply engrained desire for symmetric poise’, influenced by their environment, and expressed in plastic art, literature, cosmology, and theology, as well as in the political and legal spheres. He mentioned42 the ‘characteristic balance of protection and force, punishment and magnanimity’ in royal ideology: ‘As there was a constant urging of the ruler toward the positive pole of justice, so there was always an urging him away from the negative pole of the arbitrary use of authority.’ Seidl43 saw an application of this symmetry in the ‘Prinzip der notwendigen Entgeltlichkeit’. It recalls some modern legal theories of retributivism in the realm of criminal law. Of course, the first examples of the contrasted retributive principle in legal registers belong to the Old Kingdom (e.g. Pyramid Texts, Spell 485; Herkhuf ’s autobiography, Urk. I. 122 lines 10–16). The recital (‘preliminary statement in a contract or deed explaining the reasons for entering into it or the background of the transaction, or showing the existence of particular facts’)44 of ancient Egyptian wills is usually based on the retributive Justice principle. Thus, a testatrix contends: As for each one who laid his hand on my hand among them, I shall bequeath him my assets; as for the one who did not give (anything) to me, I shall not bequeath him (any) of my assets (Naunakhte II, 6–7, 20th dynasty).

Note the parallel structure # topicalized behaviour category + future #. Although the negative–positive polarity is common in preambles of Ramesside royal decrees,45 the use of the retributive principle (good for good, bad for bad) is limited to the Kanais decree organizing the protection of the infrastructure related to goldmining activities.46 A blessing upon a respectful king is followed by a curse on one who would cancel the decree’s dispositions: As for any future king who shall confirm my arrangements, to maintain the organisation of [the transport-contingents for washing of gold (that are) from] my [Temple], and shall furnish its (= the gold’s) deliveries to the Temple of Menmare, to gild all their statues,–– Amun, Re-Harakhti, Ptah-Tatonen, Wen[nufer, Isis, Horus, and all the gods of my Temple] shall make them flourish, they shall rule the lands zestfully (. . .).47 41 42 45 46

Wilson (1946), 41 ff. 43 44 Wilson (1946), 86. Seidl (1957). Garner (2004), 1298. David (2004), 37 and David (2006), 30, 41 ff.–50 ff. 47 David (2006), 117 and n. 22. RITA I, 59.

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And as for any king who is yet to be who will destroy any of my plans and say: ‘lands are under my authority, mine they are as they were under his’, a troublesome case for (the) gods’ hearts, see o[n]e about to arraign him in Heliopolis: they are (the) judges [. . .]; may they make answer for (= defend) their material property; may they redden as firebrand because they boil the flesh of those who do not obey to me; They will destroy the one who disturbs my plans (and) will hand him over to (the) Netherworld execution chamber.

Ramesses II’s Hittite Treaty uses the same device of encouraging positive behaviour while cursing transgression: Concerning these terms which are (recorded) upon this silver tablet for the land of Hatti and the land of Egypt;As for who(ever) shall not keep them,––the thousand gods of the land of Hatti together with the thousand gods of the land of Egypt shall destroy his house, his land and his servants. As for who(ever) shall keep these terms which are (recorded) upon this silver tablet, be they in Hatti or be they Egyptians, and they do not act in neglect of them,––the thousand gods of the land of Hatti together with the thousand gods of the land of Egypt shall act to cause him to flourish and to live, together with his household, his land and his servants.48

Note again the construction # topicalized behaviour category + future #. These last two examples use curses calling on the divine to punish the transgressor; here the legal and the religious realms have merged to achieve the desired effect.49 In the religious sphere the same principle governs personal fate; the Egyptian ‘psychostasy’ (represented by the key concept of balance as a metaphor of Justice) offers eternal life to the righteous (the ‘light-hearted’), and the teeth of the Devourer to the ‘heavy’ offender (the weight metaphor is still used today to define culpability):50 Fig. 1.1. Significantly, Egyptian fate in the afterlife is ruled by a court’s verdict; faith in justice is at the heart of the religious experience. The ‘polarity of the curses and blessings’ in ancient Egyptian culture signifies that ‘curse and blessing formulae are mutual counterparts (negative and positive), they are binary oppositions, and they are polar, parallel as well as complementary’;51 they are

48 51

49 RITA II, 84. David (2006), 103, 124. Nordh (1996), 2–3.

50

See David (2007), 1.

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Fig. 1.1. A graphic representation of retributive justice polarity in the Book of the Dead: Papyurus of Anni, 19th dynasty. From Wilkinson 1992: 76 n. 1.

verbalized rituals that ‘worked more or less like legal statutes’.52 See these examples: the greedy are in a state of non-existence, but the just are assigned to the land of god’ (Hymn to Amun-Re of pChester Beatty IV r°11, 4–5, 19th dynasty, Assmann 1995: 202) As for the Vizier who shall mo[ve this stela/monument] [from] its pl[ace], he shall not be satisfied by justice,––he shall not follow Amun in any of his festivals. As for anyone who shall [safeguard (?) it, he shall be] contented, and [he] shall follow the Lord of the gods. (oBoston MFA 11.1498, late 19th dynasty, RITA IV, 260)

Again the construction # topicalized behaviour category + future # is used in the foregoing ostracon. Polarity is opposition, and the contrastive parallelism serves the basic view of world organization common to the legal and the religious realms: the dichotomy of Good (nfr, M t) and Bad (dw, bn, sft), of Right/True (M ) and Wrong/False (d). Assmann53 sees in the use of oaths and curses an extension of what he calls ‘connective justice’ (providing and protecting the causative link between action and consequence) beyond legal institutions into the ‘sphere of divine maintenance of cosmic order’, for the Egyptians had a ‘world-view where both cosmic and social order follow the same principle of retribution’. By clearly opposing behaviours and 52

Nordh (1996), 97–8.

53

Assmann (1992), 151.

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their consequences, an inevitable choice/consequence is imposed on the addressee; the Egyptian legal system clearly believed in stimulating positive behaviour besides sanctioning crimes. Besides the communicative purpose of such a pattern, one must signal that both religious and legal textual corpuses present strong oral residues; Ong54 notes that agonistic features mark oral-based thought and expression, with their mixture of verbal violence and praise, a ‘highly polarized, agonistic, oral world of good and evil, virtue and vice, villains and heroes’.55

2. PERFORMATIVE SPEECH The use of the performative is typical of both legal56 and religious genres. Austin57 introduced the notion of performative as a matter of statement and performance, a way to do things with words. There are explicit performatives (locutive, present statements, expressed in a suitable context with the intention to be bound by the utterance), e.g. ‘I do,’ ‘I swear,’ or ‘I hereby bequeath,’ when uttered in the specific contexts of a marriage ceremony, a courtroom, or a will; but also implicit performatives (expressed not in a locutive form but in a delocutive present) such as a curse of the type: ‘He belongs to the flame, may it burn his body, (and) to the fire, may it devour his limbs’ (Kanais decree, 19th dynasty).58 A curse is performative speech;59 saying a curse accomplishes it: you cannot be un-cursed. Cursing is already punishing, although the execution of the threat should be performed in another world, after the criminal’s death, and by supernatural actors. Religious curses are used in royal decrees, as we saw above, as well as in the following case (Nauri decree, 19th dynasty): [And as for all the officials w]ho are in (the) entire land, to whom anybody of the temple ‘Mnm tra ’s heart is contented in Abydos’ will come, saying: ‘[this so-and-so] has committed a transgression [against me], (since) he took my ox (/since) he took this/my ass (/since) he took my goat’, (or) any 54

55 Ong (1982), 43–5. Ong (1982), 45. 57 See inter al. Kurzon (1986). Austin (1962). 58 Performative speeches are of course known from earlier periods; see Gunn (1924), 69–74, and Vernus (1985). 59 Searle and Vanderveken (1985), 209; Assmann (1992), 159; Blumenthal (2002). 56

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material property that one would take from a man, or ‘this so-and-so, this agent, took my people by coercion, to execute any mission’, and they will not fly at his voice to cause that his opponent be brought diligently in order to try him, Osiris, foremost of (the) West, the lord of Mankind, the lord of Property, is after him, after his wife, after his children to destroy his name, to annihilate his soul, to prevent that his corpse will rest in (the) necropolis.

In the Ramesside repertoire performatives appear in royal decrees (the aforementioned curses), wills, religious scenes, and curses outside the specific decree context. Thus in a will: I hereby bequeath (tw. dt) all [t]hat (I) made with Mrs. ’Inkswndm, the woman who lives in my house, to her toda[y] (m p hrw), consisting of these 2 male servants (and) 2 female servants, total: 4, with their children (. . .); and I bequeath these 9 servants (. . .) to my children, with the house of my father (and) mother already in their possession. (pTurin 2021 rº and pGeneva D 409, end of 20th dynasty)

In this case the performative takes the form of a locutive present and is reinforced by ‘today,’ it is an explicit performative. In testamentary context, with the marker of performativity ‘today’ and in the operative part of the will, the proper conditions are met.60 Of course, implicit performative speeches are also used in wills in the form ‘As for my (assets), they are for/belong to X’ (iw.f n PN), which expresses a constitutive act, the attribution of ownership rights on specific and general bequests (when in the dispositive of a will), the same form used in the curse of the Kanais decree.61 Gunn62 already gathered many performative forms in religious contexts, and although he did not call them as such, he defined the paradigm as ‘an event happening at the actual moment of speaking’ in ‘pictorial representations in which a person (whether human or divine) is shown performing some act, while in an accompanying legend the person states that he is performing the act in question’.63 Here are two typical examples he mentioned from Seti I’s temple in Abydos (19th dynasty). The first shows Horus and Thot performing the symbolic union of the Two Lands, the second Thot bringing the sign of life to the royal nose:

60

Vernus (1985), 310; David (2010), 134–5. For the various syntactic constructions of the performative in legal context see David (2010), 36–9. 62 63 Gunn (1924), 69–74. Gunn (1924), 69. 61

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I hereby unite for thee Upper and Lower Egypt. (Mariette (1869), pl. 31a); I hereby give thee life for thy nose and the two uraei for thy beautiful face. (Mariette (1869), pl. 22, middle scene)

The scene and its caption eternally convey the union and the life created by the divine speeches. The form used in the Abydos examples (sdm.n. ) is an explicit locutive performative, but is not the same as the one used in the will; Vernus64 underlines the fact that Egyptian performative statements are carried by various patterns, the redactors using both archaic and actualized forms. Other important examples rendered by Gunn65 concern the performing of the ‘opening of the mouth’ ritual by the sem-priest, here from Seti I’s tomb (19th dynasty): ‘I hereby open thy mouth for thee, I hereby open thine eyes for thee.’ Clearly, the utterance endows the statue with sensorial faculties, acting on the statue and the priest’s tools in a magical symbiosis. The use of the adze is metonymical (the tool for the act of completing the sculpting), as well as metaphorical (‘sculpting is giving life’); the speech is performative in the appropriate context. Figure 1.2 illustrates the performative speech during the ritual. As Tambiah66 puts it, ‘Ritual is a culturally constructed system of symbolic communication (. . .) often expressed in multiple media. (. . .) Ritual action in its constitutive features is performative in these three senses: in the Austinian sense of performative wherein saying

Fig. 1.2. Opening the mouth of the deceased statue in Seti I’s tomb, corridor H. From Rosellini 1832–44: pl. LXII. 64

Vernus (1985), 309.

65

Gunn (1924), 70.

66

Tambiah (1979), 119.

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something is also doing something as a conventional act; in the quite different sense of a staged performance that uses multiple media by which the participants experience the event intensively; and in the third sense of indexical values (. . .) being attached to and inferred by actors during the performance.’ In the religious funerary context curses similar to the one in the Nauri decree (above) can also be found: ‘As for who(ever) shall speak against it [the endowment to the statue of Ramesses VI), Amun-Re, King of Gods, is after him to destroy him, Mut after his wife, Khonsu after his child’ (Anîbeh tomb of Pnnwt, 20th dynasty). Both the religious and the legal spheres are creation loci: the creative power of the word is of course highlighted in the religious realm67 as we know that some gods (mainly Re, Amun, Ptah) are said to have used speech as an instrument of creation,68 an archetypal performative speech act. So in the 19th-dynasty tomb of Nbwnnf (TT 157) this is said about the divinity: Who created heaven and earth (pt t) and gave birth to human beings, who brought forth all that is through the utterance of his mouth, Who spoke and it happened (. . .) It was his tongue that formed everything he created. (Assmann (1995), 171 n. 111 and (1983), 188, Text 149)

Interestingly, the sun-god is endowed with attributes related to the creative power of speech: h.w 69 ‘authoritative utterance’, a ‘speech which is so effective that it creates’, combined with s, ‘perception’, ‘the cognitive reception of a situation, an object, or an idea’.70 Furthermore, ‘Magic [h.k] is the force that makes [h.w] effective’.71 Similar attributes are on the king: h.w s m t h.n .k (h.w, s and Maat are with you) (Admonitions 12, 12); and h.w is also used to designate a royal ordinance (Wb III, 44. 7) so it is also used in the legal realm. Zandee72 notes, ‘Der Befehl des Königs ist ein Schöpferwort, das sogleich ausgeführt wird, “was betrifft das alles, das aus dem Munde des Königs ausgeht, es geschieht sofort” (Urk. I 39 13, 14).’ Speech, in certain conditions, has a creative power and is considered h.w, performative. The legal system constantly deals with the creation (and annulments) of rights and obligations, and the tool used to do so is the word, written or spoken. 67 69 70 71

68 Tambiah (1968), 182–4. See Allen (1988), 30–1, 36–47. LÄ III, 65–8, Altenmüller (1980b). Wilson (1946), 57; see e.g. PT 300, CT 647. 72 Allen (1988), 38. Zandee (1964), 52.

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3. PROSODY Various means are used in both the religious and the legal documents to increase the solemnity, hence the authority, of the text. Danet73 called this poetization ‘the magic flute hypothesis’, based on the human tendency to ‘draw on the formal properties of language to provide the illusion of control over the natural and social world’. And again, as the utterance is endowed with a magic creative power, the tone of the religious and legal discourse must be carefully taken care of. Isotopy, the repetition of units at any and all textual levels, is one of the preferred means used to achieve this goal. As the legal process in court has been compared to a religious ceremony, a ‘secular ritual,’ some of the formal properties of the ceremony ‘mimic its message’, among them repetition. Redundancy74 and order imply permanence and legitimacy; the stylistic rigidities and repetition of the ritual are traditionalizing instruments.75 On the metaphorical level, linguistic iteration is based on the idea that ‘more of form is more of content’;76 repeating the same or a similar expression adds to its meaning. Moreover, legal and religious performance retaining a high level of orality, one cannot ignore Ong’s remarks77 about the ‘redundant or “copious” ’ characteristic of orally based thought and expression, where ‘redundancy, repetition of the just-said, keeps both speaker and hearer surely on the track’ (p. 40). Here is one example taken from a royal decree: to prevent one’s transgression in respect of any person of [t]he temple of millions of years ‘(the) King of Upper and Lower Egypt Mnm tr ’s heart is contented in Abydos’, who is (anywhere) in (the) entire land, being man (or) woman; to prevent one’s transgression in respect of any assets of the aforementioned temple that is (anywhere) in (the) whole land; to prevent [that be seized any person] of the aforementioned temple by coercion(,) from a district to (another) district, by (submission?) contract, by a forced labour (corvée) of ploughing (or) by a forced labour of 73

Danet (1984), esp. 164. For the application of Information Theory to the analysis of ritual, the notions of redundancy and of pattern recognition, see Tambiah (1979), 130–42. 75 Moore and Myerhoff (1977), 7–8; Tambiah (1979), 123. 76 77 Lakoff and Johnson (1980), 127–8. Ong (1982), 39–41. 74

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harvesting, by any Viceroy, any troop commandant, any mayor, any agent, anybody [sent on] a mission to Kush; to prevent that be detained their boat on water by any executive force; to prevent one’s overstepping of any field of the temple ‘Mnm tr ’s heart is contented in Abydos’ in (the) countryside [to shift] their [boundarie]s by any Viceroy, any troop commandant, any agent of (the) Agent(s) Department of the King’s House, (or) [perso]n sent as messenger to Kush; (Nauri decree, lines 31–4, 19th dynasty)

Obviously, the repetition of ‘to prevent’ in the whereas clauses (preamble) of the decree has several purposes: it has a cohesive function; it isolates each kind of offence that will be dealt with in the body of the decree; it emphasizes the preventive purpose of the royal decree; and it imparts an authoritative tone. In wills, a similar feature is adopted to give weight to the descent and distribution rules of the operative part: If there should be in my possession fields in the country, if there should be in my possession any assets in this land, if there should be in my possession merchandise, they will divide them for my 4 children, Pdw being in (the status of) one of them. (pAdoptions, end of the 20th dynasty)

The isotopic ‘if there should be in my possession’ divides the list of assets into categories, beginning with real estate, followed by nonspecific movable assets, and then specific movable assets; it highlights the condition of existence of the assets by the time of the testatrix’s death. And of course, it conveys the sense of solemnity and authority expected of a testamentary disposition. A charge against a citizen may be constructed in an isotopic mode to drive home the charge in the addressed vizier’s mind: Paneb had intercourse with Mrs Tuy when she was the woman of the workman Kenna; he had intercourse with Mrs Hunro when she was with Pendua; he had intercourse with Mrs Hunro when she was with Hesysenebef, as said his son. And when he had intercourse with Hunro, he had intercourse with Webkhet, her daughter, and Apahte, his son, also had intercourse with Webkhet. (pSalt 124, r° II lines 2–4, 20th dynasty)

In the religious realm, spells and charms use the very same device to achieve the same effects; the following example is a love charm: ‘Hail to you, Re-Horakhte, father of the Gods! Hail to you, seven Hathors who are clothed in wrappings of red linen! Hail to you, Gods, lords of heaven and earth!

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Let PN (woman) born of PN come after me like a cow after grass, like a servant after her children, like a herdsman after his cattle. If they do not make her come after me, I shall set Busiris and burn up (oDeir el-Medina 1057, 20th dynasty, Smither (1941), 131)

Here as well, two segments of triple repetitions are used with the same objective (note that the above-mentioned curses from the Nauri decree and the Anîbeh tomb were also built as three-member patterns). The litany-like quality of this short spell is meant to exert a supernatural effect strong enough to convince the object of the man’s longing to succumb. Furthermore, the spell is intended for verbal recitation. A rather extremist isotopic composition is to be found in BD 181: Spell for going into the tribunal of Osiris and the gods who govern the Netherworld, who guard their gates, who make report concerning their courts, who keep the doors of the portals of the West; for taking shape as a living soul, worshipping Osiris, and becoming an Elder of the tribunal. Hail to you, Foremost of the Westerners, Wennefer, Lord of the Sacred Land! You have appeared in glory like Re, and behold, he has come to see you and to rejoice at seeing your beauty. His sun-disc is your sun-disc; His rays are your rays; His crown is your crown; His greatness is your greatness; His appearings are your appearings; His beauty is your beauty; His majesty is your majesty; His savour is your savour; His extent is your extent; His seat is your seat; His throne is your throne; His heritage is your heritage; His panoply is your panoply; His destiny is your destiny; His West is your West; His goods are your goods; His wisdom is your wisdom; His distinction is your distinction (. . .)’ (Faulkner (1985), 180)

The repetitive parallelism may be understood as ‘an iconic analogue of the cycles of creations of the cosmic order in their temporal

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and spatial regularity and cumulative effect’,78 expanding and embellishing the text, and exploring its nuances. The allocutive (second person) reference triggers identification, transports the human addressee in an ordered divine sphere where he is associated with and then merged into the god’s perfection. Other examples taken from the religious sphere are built the same way while expressing concerns linked to those of wills, for instance, the transmission of spiritual realms in the Afterlife (from a ritual): Spell for the torch of the New Year: The sky is given to thee, the earth is given to thee, the Fields of Yaru are thine on this night. (. . .) This torch is for Amun, Lord of the Thrones of the Two Lands, as a gift of king Menmare’ (Great Hypostyle Hall, Karnak; Nelson (1949), 336–7, fig. 37).

An interesting parallel may be drawn with the rather graphic isotopy case of two Ptolemaic cryptographic hymns (Temple of Khnum in Esna): whole texts are recorded using almost only icons of rams or crocodiles; the hieroglyphs still play their role of script signs. From afar, the repetition of similar signs looks like the representation of an ordered herd and the icons’ scriptural function is barely visible (see Sauneron (1963) n. 103). The following spell uses another device that is particularly characteristic of the legal register, the all-encompassing list of hyponyms with repetition of ‘any’ (as in the ‘to prevent’ segment of the Nauri decree, above): Oh you four glorious spirits (h) there whose function is to keep watch over ˘ have kept over Osiris, you should act in a Osiris! As for the watch that you similar way with regard to NN born of NN––to prevent any male dead (mt), any female dead, any male opponent (dy) or any female opponent which is in the body of NN born of NN from killing him. (Borghouts (1978), 4, pChester Beatty VI, v° 2, 5–9, 19th dynasty)

Some religious texts contain lists of several dozens of items (e.g. the spell––actually a divine decree––of Osiris Khentyimntyu to repel harmful elements, where seventy types of death are listed, all beginning with the lexeme ‘death’, in Borghouts (1978), 4–6, from pTurin 1993 [23] v° 7, 6–10,1, 20th dynasty). The purpose of long, multinominal lists in the legal register is to render the rule ‘both general and detailed’.79 All-inclusiveness, an 78

Tambiah (1979), 137.

79

Maley (1994), 22, 31.

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‘attempt to refer to every conceivable contingency within their [the laws’] model’,80 the claim to universality and precision, are all related to the implications of creative words as they have a direct effect on the world. Nothing must be forgotten. And lengthy lists give an illusion of control reinforced by assonances and repetitions; the ‘magic flute’ is played again. Litanies of nouns impose a certain rhythm on the legal and religious texts; they are pure evocation of the reality they represent. Naming has a magical quality that breathes life into what is named; we know how important the name is in Egyptian civilization. Another device that bears on the rhythm and solemnity of the text is the use of binomials, the term given to them by Malkiel.81 These are doublets, like those which pervade modern forensic language (e.g. all or any, error or omission, full and complete; nul et non avenu, violences ou voies de fait)82 composed of two or more lexemes syntactically, semantically, and prosodically related. The semantic relation between the two lexemes is of a synonymous, contiguous, or complementary type (gradation); a fixed order seems to be one of the characteristics of the symmetrical pattern. They are extensively used in Ramesside royal decrees,83 private deeds, and religious registers, as well as in any monumental official text. See this excerpt of the Nauri decree (lines 25–7): A decree has been made posting its (the temple’s) farming corvée subjects throughout (the) districts of Upper and Lower Egypt, so that all its people are retained (and) preserved (hw mk ), like geese on river-banks of which ˘ they are fond, when all their services are offered [to] his KA in (the) great nome that he (always) had loved. They ought not to be interfered with by others, nor shall be one’s transgression against them, from son [to son], since confirmed in their service to (the) ultimate limits of eternity.

In Egyptian royal decrees ‘retained’ (hw ) appears first in time and ˘ is always the first member of the later binomial; it may already have had an archaic flavour by the time of the 6th dynasty, when the second lexeme (mk ) was adjoined for precision, and conveyed a certain ritualistic authority. Binomials may be constituted by the repetition of the same lexeme, and there ‘is something primitive, archaic, cyclopic about this arrangement’.84 In a Ramesside will: ‘As 80

81 Bhatia (1994), 136–7. Malkiel (1959). 83 See Gustafsson (1984). David (2006), 26–7 with further bibliography. 84 Malkiel (1959), 125–6; see also Gustafsson (1984), 136: ‘from day to day’, ‘from time to time’. 82

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for these brothers of mine standing to confront her on my death on the morrow after tomorrow, and saying: “Give the shares of my brother” . . .’ (pAdoptions, line 7). The binomial ‘on the morrow after tomorrow’ (n dww r-s() dww) postpones indefinitely the legacy’s ultimate condition; as Danet and Bogoch85 noted, this parallelism of legal texts may be considered ‘a form of oral residue, left over from oral ritual communication, where mnemonic devices facilitate performance’, but also ‘the poetic features of language are mobilized to ‘thicken’ or give body to the document, to enhance its performative capacity’. In the religious sphere binomials are fairly common too. Besides the omnipresent (in all official genres) ‘for ever and ever’ (nh.h. dt) and life–prosperity–health ( nh wd snb), or in the ˘ offering formula ‘what heaven gives and earth produces’ (ddt pt k.mt 86 t), by water and by earth (h.r mw h.r t), gods of heaven and gods of the earth (ntrw pt ntrw t) (BD 183), p t rhyt ‘patricians and ˘ common folk’ (BD 185), we may even find a trinomial including hwí that we have seen used in a binomial frequent in royal decrees: ˘ Book for the permanence of Osiris, giving breath to the Inert One in the presence of Thoth, and repelling the enemy of Osiris, who comes yonder in his various shapes; the safeguarding, protection and defence (stp s hww) in the realm of the dead which Thoth himself has carried out in order˘that the sunlight might rest on him every day. (BD 182, Faulkner (1985), 181)

Alliteration is common in both registers. From the Nauri decree (line 26) quoted already: ‘They ought not to be interfered (thm) with by others, nor shall be one’s transgression (tht) against them’ (David (2006), 20–2). See also in the Kanais decree, line16, a probable play on the phonetic contiguity of bw(t) and bw.87 The record of a dispute before oracle may also make use of alliteration: ‘As for the property in this place, comprising posts (sbw) and planks (syw) at the portal (sb) . . .’ (oCairo CG 25555 v° 2, 20th dynasty, a case provided and translated to fit the alliteration in English by Sweeney (2004), 105). In religious rituals, the same device is often used, completed with lexical and structural isotopy: 85

Danet and Bogoch (1992), 106. During the Ramesside Period: e.g. Barta (1968), 141 Bitte 2a; 148 Bitte 108d. It is based on the primary and irreversible binomial pt t (see already cited Nbwnnf’s tomb inscription extract). 87 David (2006), 123–4. 86

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Spell [for pla]cing fat upon [the fire. Comes plenty upon plenty]. Horus has arisen, [he has made healthy (s d) his two eyes in this his name of fat ( d). Thot] ‘comes to thee’. [He has approached (h.sy) in this] his name of the praised one (h.sy). (Great Hypostyle Hall, Karnak, completed with the Ritual of Amenhotep I, Nelson (1949), 209)

In section G of the Magical pHarris 501 of the 19th dynasty, the wordplay and soundplay become fascinating: You have hidden (mn.n.k) yourself as Amun (’Imn) the great you have withdrawn (tn.k) in your transformation as the sun disk (tn) Tatenen (t-tnn), who raises (stn ) himself above the gods. (Assmann (1995), 147)

Alliteration is also the basis of wordplay88 in this famous example from the Middle Kingdom, used ad nauseam during the following periods:89 ‘I have created the gods from my sweat and the people (rmt) from the tears (rmyt) of my eye’ (CT 1130–1). The regularityeffect of alliteration is thus frequently accompanied by a wordplay that re-energizes the discourse, even though most of these games must have been well known to their addressees.

4. CULTURAL DIGLOSSIA: MIDDLE EGYPTIAN V. NEO-EGYPTIAN AND SPECIFIC BLENDS OF HIGH AND LOW VARIETIES During the Ramesside Period, scribes purposely used distinctive and varied blends of two varieties of language, the ‘high’ dialect (with a large Old-Middle Egyptian component, archaic by those times) conferring prestige and a sense of durability to the written text, and a standardized written version of the ‘low’ variety (‘written as if spoken’).90 This constitutes an interesting case of ‘cultural’ diglossia, as coined by Loprieno,91 a tool of discrimination between genres and registers. For instance, Ramesside monumental normative decrees are recorded in a variety of Middle Egyptian forms with lexicographic, 88 89 90

For other wordplay examples see Grapow (1936), 17–20. See some of the examples provided by Assmann (1995), 167–8. 91 Goldwasser (1999), 2. Loprieno (1996), 522–3.

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morphologic, and orthographic adaptations introduced during the New Kingdom, and some new (sometimes transitory) syntactic forms perhaps closer to the spoken language, whatever that might be. So, for example, no Neo-Egyptian prothetic yod forms are found in lapidary hieroglyphic versions of normative decrees, but use is made of archaic anaphora and concord, Middle Egyptian passive perfect sdm.f and that-forms after prepositions. Even pseudo-archaic forms such as r.n.N tm sdm are created for their ‘authoritative virtue’ and legitimizing effect.92 On the other hand, Ramesside wills recorded in hieratic use both Neo-Egyptian prothetic yod forms, full-fledged conjunctive, and Middle Egyptian relatives, archaic anaphora and narrative  h. .n sdm.f, even in the case of late 20th dynasty documents such as pAdoptions (recorded in a court acting as notary, in an almost ‘chancery’ hand, hence of ‘higher’ status than informal records93). Among the factors that influenced the scribes’ linguistic choices Jansen-Winkeln94 lists medium, subject, genre, segment, emotionality, realism, personal preferences, novelty, tradition, length, prestige, Sitz im Leben, and time (with a tendency to use more Neo-Egyptian during the 20th dynasty than during the 19th), recognizing that sometimes the reasons of their particular choice remained enigmatic. Goldwasser95 tends to view language as an ideological tool; the low variety of language introduces into the Ramesside repertoire subversive beliefs. Concerning hieratic texts, Jansen-Winkeln opposes Middle Egyptian-dominated divine/afterlife funerary and ritualistic genres, and documents of everyday practice being written in Neo-Egyptian; but he concedes that some hymns and prayers expressing ‘personal piety’ are ‘stark neuägyptisch beeinflußtem Mittelägyptisch’.96 As for hieroglyphic texts (official, being royal or private) he treats them as a problematic group: funerary and ritual material, although traditionally using Middle Egyptian, may also be influenced by Neo-Egyptian; on the other hand, legal documents are influenced linguistically by their physical context. Here also he admits that monumental royal decrees, basically composed in Middle Egyptian, have their more technical dispositions written in a more NeoEgyptian nuanced dialect; that legal documents sacralized in a lapidary form may linguistically vary, for example the Hittite Treaty, 92 94 96

93 See David (2006). See David (2010), 118 ff. 95 Jansen-Winkeln (1995). Goldwasser (1999), 16. Jansen-Winkeln (1995), 94.

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which is written in pure Neo-Egyptian; and that lapidary versions of oracles and legal proceedings are generally of a more Middle Egyptian register, with technical legal provisions written in NeoEgyptian. Certainly, texts belonging to the same period and genre do not always use the exact same Sprachstufe: any assessment must be finetuned by a careful analysis of the textemes of each register and their communicative purpose. Thus, in the private legal sphere, introductory formulae (prematerial) in wills/gifts, being more of a nominal nature, are also more Middle Egyptian-tuned than the locutive, narrative recital of the testator/donor where he exposes the background of his dispositions (although it does not linguistically reflect an actual speech but represents a formulaic construct pertaining to the procedural language of the court acting as notary). Similarly, the pre-material of court proceedings records are rather Middle Egyptian, while the locutive recital of the parties and the operative part are NeoEgyptian. And in any case, these legal genres concerning the private sphere, written on ostraca and papyri, use more actualized NeoEgyptian forms than lapidary royal decrees; their main dispositions must be understood by the parties so they are written in a more user-friendly dialect. On the other hand, both religious and legal productions in an official, public context, being highly formulaic and striving for authority and permanence, are more prone to include the high dialect97 features that recall the ancient tradition, even at the expense of clarity. Recitation in religious ceremonies and public reading of royal decrees98 probably made use of the distant vehicles of the past to impress and bind people in a collective experience, with exactly the same purpose as canonical, age-old representations of the king annihilating his enemies on the temple’s pylon (Fig. 1.3).99 Graphic choices obey the same rules as linguistic choices: archaic images work as legitimizing tools, and productions of conservatism 97 See Tambiah (1979), 126, concerning the marked ‘high style’ of the ritual event and discourse, and the same (1968), 180–2 about the comprehension of sacred languages and the authority of ancient sacred texts. 98 David (2006), 15 n. 16. 99 Was it a graphic-only metaphor or a living ritual transmitted unchanged since the beginning of Egyptian kingship? See Tambiah (1979), 122–3 for the repeated immutable enactment of ritual.

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Fig. 1.3. Two thousand years separate these two representations of the king smiting his enemies: palette of Narmer (from Gardiner 1957: 7) and Ramesses III on Medinet Habu’s first pylon (from LD III.209d).

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luring people through a false sense of order in a world of chaos. And here again, it is the voice of the magic flute singing the timeless incantations of both ritualistic languages.

SOURCES Admonitions = Gardiner (1909) Anîbeh tomb = LD III, 229c BD = Naville (1971) CT = de Buck (1935–61) Hittite Treaty = KRI II, 225–32 n. 64 Kanais (Wadi Abbad or Mia/Redesieh) decree = KRI I, 67–70 n. 32C KRI = Kitchen (1968–90) LÄ = Helck and Westendorf (1975–89) LD = Lepsius (1849–59) Naunakhte (pAshmolean Museum 1945.97) = KRI VI, 236–43 n. 20 Nauri decree = KRI I, 45–58 n. 24 & 416 n.180 oBoston MFA 11.1498 = KRI IV, 358–60 n. 29: 6 pAdoptions (pAshmolean Museum 1945.96) = KRI VI, 735–8 n. 19 pChester Beatty IV = Gardiner (1935), pl. 17 PN = proper noun pSalt 124 = KRI IV, 408–14 n. 54 A 26 PT = Sethe (1908–22) pTurin 2021 and pGeneva D 409 = KRI VI, 738–42 n. 20 RITA = Kitchen (1993–2001) Urk. I = Sethe, (1903). Wb = Erman and Grapow (1926–57) ‘Year 400’ Tanis decree (JE 60539) = KRI II, 287–8 n. 71

REFERENCES Allam, S. (1973), Hieratische Ostraka und Papyri aus der Ramessidenzeit (URAÄ 1; Tübingen: S. Allam). Allen, J. P. (1988), Genesis in Egypt: The Philosophy of Ancient Egyptian Creation Accounts (YES 2; New Haven: Yale Egyptological Seminar, Yale University). Altenmüller, H. (1980a), ‘Magische Literatur’, LÄ III, 1151–62. —— (1980b), ‘Hu’, LÄ III, 65–8.

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Assmann, J. (1980a), ‘Hymnus’, LÄ III, 103–10. —— (1980b), ‘Kultlied’, LÄ III, 852–5. —— (1983), Sonnenhymnen in thebanischen Gräbern (Theben 1; Mainz: Philipp von Zabern) —— (1992), ‘When Justice Fails: Jurisdiction and Imprecation in Ancient Egypt and the Near East’, JEA 78: 149–62. —— (1995), Egyptian Solar Religion in the New Kingdom: Re, Amun and the Crisis of Polytheism (London: Kegan Paul International). —— (1999), Ägyptische Hymnen und Gebete (OBO; Freiburg: Universitätsverlag Freiburg; Göttingen: Vandenhoeck & Ruprecht). Austin, J. L. (1962), How to Do Things with Words (Oxford: Clarendon). Barta, W. (1968), Aufbau und Bedeutung der altägyptischen Opferformel (ÄF 24; Glückstadt: J. J. Augustin). —— (1980), ‘Kult’, LÄ III, 839–48. —— (1982), ‘Opferformel’, LÄ IV, 584–6. Barucq, A., and Daumas, F. (1980), Hymnes et prières de l’Egypte ancienne (Paris: Editions du Cerf). Bhatia, V.K. (1993), Analysing Genre: Language Use in Professional Settings (London: Longman). —— (1994), ‘Cognitive Structuring in Legislative Provisions’, in J. Gibbons (ed.), Language and the Law (London: Longman), 136–55. Blumenthal, D. R. (2002), ‘Liturgies of Anger’, Cross Current 52: 178–99. Borghouts, J. F. (1978), Ancient Egyptian Magical Spells (Nisaba 9; Leiden: E. J. Brill). Brunner, H. (1982), ‘Persönliche Frömmigkeit’, LÄ IV, 951–63. Brunner-Traut, E. (1982), ‘Mythos’, LÄ IV, 277–86. Charrow, V. R., Crandall, J. A., and Charrow, R. P. (1982), ‘Characteristics and Functions of Legal Language’, in R. Kittredge and J. Lehrberger (eds.), Sublanguage: Studies of Language in Restricted Semantic Domains (Berlin: W. de Gruyter), 175–90. Crystal, D., and Davy, D. (1969), Investigating English Style (London: Longman). Danet, B. (1980), ‘Language in the Legal Process’, Law & Society Review 14 (3): 445–564. —— (ed.) (1984), ‘Studies of Legal Discourse’, Text (special issue) 4–1/3. —— (1985), ‘Legal Discourse’, in T. A. Van Dijk (ed.), Handbook of Discourse Analysis: Disciplines of Discourse (London: Academic Press), i. 273–91. —— (1990), ‘Language and Law: An Overview of 15 Years of Research’, in H. Giles and P. Robinson (eds.), Handbook of Language and Social Psychology (Chichester: John Wiley & Sons), 537–59. —— and Bogoch, B. (1992), ‘From Oral Ceremony to Written Document: The Transitional Language of Anglo-Saxon Wills’, Language & Communication 12: 95–122.

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David, A. (2006) Syntactic and Lexico-Semantic Aspects of the Legal Register in Ramesside Royal Decrees (GOF IV.RÄ 38/5; Wiesbaden: Harrassowitz). —— (2007), ‘Ancient Egyptian Forensic Metaphors and Categories’, ZÄS 134: 1–14. —— (2010), The Legal Register of Ramsesside Private Law Instruments (GOF IV.RÄ 387; Wiesbaden: Harrassowitz). de Buck, A. (ed.) (1935–61), The Egyptian Coffin Texts (7 vols.; Chicago: Oriental Institute Publications). Erman, A., and Grapow, H. (1926–57) (eds.), Wörterbuch der ägyptischen Sprache (6 vols.; Berlin: Akademie Verlag). Faulkner, R. O. (1985), The Ancient Egyptian Book of the Dead (rev. edn.; London: Trustees of the British Museum). Gardiner, A. H. (1909), The Admonitions of an Egyptian Sage from a Hieratic Papyrus in Leiden (Pap. Leiden 344 recto) (Leipzig: Hinrichs). —— (1935), Hieratic Papyri in the British Museum (3rd ser.; London: The British Museum), ii. —— (1957) Egyptian Grammar: Being an Introduction to the Study of Hieroglyphs (Oxford: Griffith Institute). Garner, B. A. (2004) (ed.), Black’s Law Dictionary (8th edn.; St Paul, Minn.: Thomson West). Goldwasser, O. (1999), ‘ “Low” and “High” Dialects in Ramesside Egyptian’, in S. Grunert and I. Hafemann (eds.), Textcorpus und Wörterbuch: Aspekte zur ägyptischen Lexikographie, PÄ 14; Leiden: E. J. Brill), 311–28. Goodrich, P. (1987), Legal Discourse: Studies in Linguistics, Rhetoric and Legal Analysis (Houndmills: Macmillan). Grapow, H. (1936), Sprachliche und schriftliche Formung aegyptischer Texte (LÄS 7; Glückstadt: Augustin). Grey, T. C. (1984), ‘The Constitution as Scripture’, Stanford Law Review 37: 1–25. Gunn, B. (1924), Studies in Egyptian Syntax (Paris: Librairie Orientaliste Paul Geuthner). Gustafsson, M. (1984), ‘The Syntactic Features of Binomial Expressions in Legal English’, in B. Danet (ed.), 123–41. Gutekunst, W. (1986), ‘Zauber’, LÄ VI, 1320–55. Halliday, M. A. K., McIntosh, A., and Strevens, P. (1964), The Linguistic Sciences and Language Teaching (London: Longmans). Heerma van Voss, M. (1986), ‘Totenbuch’, LÄ VI, 641–3. Helck, W., and Westendorf, W. (1975–89) (eds.), Lexicon der Ägyptologie (Wiesbaden: Harrassowitz). Hodge, R. I. V., and Kress, G. R. (1988), Social Semiotics (Ithaca, NY: Cornell University Press). Hornung, E. (1986), ‘Totenliteratur (Totentexte)’ LÄ VI, 676–7. Hornung, E. (1999), The Ancient Egyptian Books of the Afterlife: An Introduction (Ithaca, NY: Cornell University Press).

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Jackson, B. S. (1995), Making Sense in Law: Linguistic, Psychological and Semiotic Perspectives (Liverpool: Deborah Charles). Jansen-Winkeln, K. (1995), ‘Diglossie und Zweisprachigkeit im alten Ägypten’, WZKM 85: 85–115. Kákosy, L. (1982), ‘Orakel’, LÄ IV, 600–6. Kitchen, K. A. (1968–90), Ramesside Inscriptions, Historical and Biographical (8 vols.; Oxford: B. H. Blackwell). —— (1993–2001), Ramesside Inscriptions Translated and Annotated (3 vols.; Oxford: B. H. Blackwell). Kurzon, D. (1986), It is hereby performed . . . : Explorations in Legal Speech Acts (Pragmatics & Beyond VII: 6; Amsterdam: John Benjamins). Lakoff, G., and Johnson, M. (1980), Metaphors We Live By (Chicago: University of Chicago Press). Lepsius, R. (1849–59), Denkmäler aus Ägypten und Äthiopien, nach den Zeichnungen der von Seiner Majestät dem Könige von Preussen Friedrich Wilhelm IV. nach diesen Ländern gesendeten und in den Jahren 1842–1845 ausgeführten wissenschaftlichen Expedition (12 vols.; Berlin: Nicolaische). Loprieno, A. (1996), ‘Linguistic Variety and Egyptian Literature’, in A. Loprieno (ed.), Ancient Egyptian Literature: History and Forms (PÄ 10; Leiden: E. J. Brill), 515–29. Maley, Y. (1994), ‘The Language of the Law’, in J. Gibbons (ed.), Language and the Law (London: Longman), 11–50. Malkiel, Y. (1959), ‘Studies in Irreversible Binomials’, Lingua 8: 113–60. Mariette, A. (1869), Abydos: Description des fouilles exécutées sur l’emplacement de cette ville (Paris: Franck, Imprimerie Nationale), i. Mellinkoff, D. (1963), The Language of the Law (Boston: Little, Brown). Moore, S. F., and Myerhoff, B. G. (1977), ‘Secular Ritual: Forms and Meanings’, in S. F. Moore and B. G. Myerhoff (eds.), Secular Ritual (Assen: Van Gorcum), 3–24. Morschauser, S. (1991), Threat-Formulae in Ancient Egypt: A Study of the History, Structure and Use of Threats and Curses in Ancient Egypt (Baltimore: Halgo). Müller, C. (1975), ‘Anruf an Lebende’, LÄ I, 293–9. Naville, E. (ed.) (1971) Das ägyptische Totenbuch der XVIII. bis XX. Dynastie (2 vols.; Graz: Akademische Druck). Nelson, H. H. (1949), ‘Certain Reliefs at Karnak and Medinet Habu and the Ritual of Amenophis I.’, JNES 8: 201–32, 310–45. Nordh, K. (1996), Aspects of Ancient Egyptian Curses and Blessings: Conceptual Background and Transmission (USAMNEC 26; Uppsala: Uppsala University Press). Ong, W. J. (1982), Orality and Literacy: The Technologizing of the Word (London: Routledge). Otto, E. (1977), ‘Götterdekret’, LÄ II, 675–7. Ricœur, P. (1967), The Symbolism of Evil (Boston: Beacon).

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Rosellini, I. (1832–44), I monumenti dell’Egitto e della Nubia, disegnati dalla Spedizione Scientifico-Letteraria Toscana in Egitto (Pisa: Capurro). Ross, T. (1989), ‘Metaphor and Paradox’, Georgia Law Review 23: 1053–63. Sauneron, S. (1963), Le Temple d’Esna (Esna 2; Cairo: IFAO). Schilling, W. (1957), Religion und Recht (Die wissenschaftliche Taschenbuchreihe 26; Urban-Schorndorf: W. Kohlhammer). Searle, J. R., and Vanderveken, D. (1985), Foundations of Illocutionary Logic (Cambridge: Cambridge University Press). Sethe, K. (1908–22), Die Altägyptischen Pyramidentexte (4 vols.; Leipzig: J. C. Hinrichs). Seidl, E. (1957), ‘Vom Erbrecht der alten Ägypter’, ZDMG 107: 270–81. Smither, P. (1941), ‘A Ramesside Love Charm’, JEA 27: 131–2. Sweeney, D. (2004), ‘Law, Rhetoric, and Gender in Ramesside Egypt’, in C. S. Lipson and R. A. Binkley (eds.), Rhetoric Before and Beyond the Greeks (New York: State University of New York Press), 99–113. Tambiah, S. J. (1968), ‘The Magical Power of Words’, Man 3: 175–208. —— (1979), ‘A Performative Approach to Ritual’, Proceedings of the British Academy 65: 113–69. Tiersma, P. M. (1999), Legal Language (Chicago: University of Chicago Press). van de Walle, B. (1975), ‘Biographie’, LÄ I, 815–21. Vernus, P. (1985), ‘«Ritual» sd_m.n.f and Some Values of the “Accompli” in the Bible and in the Koran’, in S. Israelit-Groll (ed.), Pharaonic Egypt: The Bible and Christianity (Jerusalem: Magnes Press and Hebrew University of Jerusalem), 307–16. Wilkinson, R. H. (1992), Reading Egyptian Art: A Hieroglyphic Guide to Ancient Egyptian Painting and Sculpture (London: Thames & Hudson). Wilson, J. A. (1946), ‘The Nature of the Universe’, in H. and H. A. Frankfort, J. A. Wilson, T. Jacobsen, W. A. Irwin (eds.), The Intellectual Adventure of Ancient Man: An Essay on Speculative Thought in the Ancient Near East (Chicago: University of Chicago Press), 31–61. Winter, S. L. (1986), ‘Tennessee v. Garner and the Democratic Practice of Judicial Review’, N.Y.U. Review of Law & Social Change 14: 679–704. —— (1988), ‘The Metaphor of Standing and the Problem of SelfGovernance’, Stanford Law Review 40: 1371–516. Zandee, J. (1964), ‘Das Schöpferwort im alten Ägypten’, in A. A. van Ruler and W. C. van Unnik (eds.), Verbum: Essays on Some Aspects of the Religious Function of Words, Dedicated to Dr. H. W. Obbink (Studia Theologica Rheno-Traiectina 6; Utrecht: Kemink), 33–66.

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2 Law and Religion in Achaemenid Iran Josef Wiesehöfer

In Memoriam Fritz Gschnitzer

I

θa¯ti Da¯rayavausˇ xsˇa¯yaθiya: vasˇna¯ Auramazda¯ha¯ ava¯karam ami, taya ra¯stam dausˇta¯ ami, miθa nai dausˇta ami; naima¯ ka¯ma, taya skauθisˇ tunuvantahya¯ ra¯dı¯ miθa kariyaisˇ, naima¯ nva ka¯ma, taya tunuva¯ skauθaisˇ ra¯dı¯ miθa kariyaisˇ. (‘Proclaims Darius, the king: By the favour of Auramazda I am of such a kind that I am friendly to right, (but) I am not friendly to wrong. (It is) not my desire that the weak one might be treated wrongly for the strong one’s sake, (and) that (is) not my desire that the strong one might be treated wrongly for the weak one’s sake.’) (DNb 5–11; trans. R. Schmitt)

Many readers of this article will recognize these sentences: the Achaemenid Darius I, Great King from 522 to 468 bc, drafted them for one of the two inscriptions on his royal tomb on the cliffs at Naqsˇ-i Rustam. The Great King who bears the responsibility for law and justice, who searches for a balance between strength and weakness, is, as we will see, an integral component of Achaemenid– Persian ruling ideology1 as well as a requirement for the representation of a universal pax Achaemenidica, as conveyed by the king’s This article is a revised and updated version of a German-language article that appeared in Barta, Rollinger, and Lang (2008). 1 Wiesehöfer and Rollinger (forthcoming) offer an overview of the most recent research into Achaemenid-era traditions and Achaemenid ruling ideology.

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inscriptions and the palace reliefs, that benefits both ruler and subject. This quote leads us at the same time into Achaemenid–Old Persian terminology: for the words ‘right’ and ‘wrong’ as well as for ‘law’ and ‘justice’, the language of the king uses the adjective or noun ra¯sta, which literally means ‘directed’ or ‘regulated’ and is related to the Latin rectus (‘straight’ or ‘upright’). In this chapter the local terminology of the legal sphere will play an important role. The focus of these explanations, however, is on two aspects of the Achaemenid period: first, the previously mentioned characteristics of law, defined by the ruler, and justice, as determined by the ruler, as well as those virtues required from both ruler and subject to guarantee them; and second, Achaemenid legal practice as theorized by an imperial law, which has been the subject of intensive scholarly analysis and debate for the past decade.

II The inscription from which the previous quote above is taken, ‘Darius Naqsˇ-i Rustam b’ (DNb), commonly known as a Fürstenspiegel inscription although it was written by the ruler himself, does not limit itself to this passage concerning law and justice; rather, it continues to address concepts of social balance and the need for fair conditions in the kingdom: What (is) right, that (is) my desire. To the man following Falsehood I am not friendly. . . . The man who co-operates, for him, according to the cooperation, thus I care for him; who does harm, according to the harm done, thus I punish him. (It is) not my desire that a man should do harm; moreover that (is) not my desire: if he should do harm, he should not be punished. What a man says about a(nother) man, that does not convince me, until I have heard the statement of both. What a man achieves or brings according to his powers, by that I become satisfied, and it is very much my desire; and I am pleased and give generously to loyal men.2 (DNb 11–27; trans. R. Schmitt) 2

taya ra¯stam, ava ma¯m ka¯ma; martiyam draujanam nai dausˇta¯ ami; . . . martiya haya hantaxsˇatai, anudim hankr.tahya¯ avaθa¯dim paribara¯mi, haya vina¯θayati, anudim vinastahya¯ avaθa¯ pr.sa¯mi; naima¯ ka¯ma, taya martiya vina¯θayaisˇ, naipatima¯ ava ka¯ma,

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First of all, this quote makes clear precisely who defines that which is to be understood as law and justice, and who ensures the success of the law thus defined: the Great King himself (with the help of the gods: see next paragraph). To act lawfully on the part of the subjects is to support the ruler in his efforts to provide for the stability of the reign and the kingdom, while it is unlawful to position oneself against the ruler, to be disloyal, to follow a ‘lie’ (Old Persian (OP) drauga) and to cause damage. Lawful behaviour on the side of the ruler is to maintain proper order and to act against those who disturb the peace.3 In his early report of his deeds from Behistun, which is the only ‘historic’ inscription, so to speak, of the Achaemenid kings that can be attributed to a particular place and time, Darius already claimed to have restored the proper order that was suspended by the rebel Gaumata and the other so-called liar-kings through the restitution of stolen property, the restoration of ruined places of worship, the suppression of countless rebellions, and the punishment of lawbreakers. In attributing to himself the intellectual gifts and competencies of ‘intelligence’ (OP usˇ¯ıy) (DNb 28), ‘wisdom’ (OP xraθu) and ‘ability’ (OP aruvasta) (DNb 3 f.), and also through concrete measures to establish or restore the laws, Darius carried on earlier traditions, since the Ancient Near Eastern rulers before him had emphasized and valued these kingly qualities and these ‘upright’ deeds.4 As in Mesopotamia, in Achaemenid Iran there was no doubt that the king owed qualities such as the power of judgement and virtue, as well as his duty to act against lawbreakers, to the god or gods: in the case of Darius, it was Auramazda, the ‘great god’.5 ‘By yadi vina¯θayaisˇ, nai fraθiyaisˇ. martiya taya pari martiyam θa¯ti, ava ma¯m nai vr.navatai, ya¯ta¯ uba¯na¯m handuga¯m a¯xsˇnavai. martiya taya kunauti yadiva¯ a¯barati anu taumanı¯sˇai, avana¯ xsˇnuta bava¯mi uta¯ ma¯m vasai ka¯ma, uta¯ uθandusˇ ami uta¯ vasai dada¯mi agriya¯na¯m martiya¯na¯m. 3 Analogous beliefs existed long before this period in Mesopotamian history, but they appear to have experienced a particular impetus in the Achaemenid era, Pongratz-Leisten (2002). 4 Here we think of the law-bringing act of the mı¯sˇaram sˇaka¯num (‘to establish justice’), that is, the re-establishment of the social balance that had been destroyed in the land (Maul (1998), 70; see Cancik-Kirschbaum (1999), 61; Neumann (2008), 39; Kessler (2008), 73–7). 5 Concerning the role of the gods in Mesopotamia, especially Sˇamasˇ and Assur, see Maul (1998); Cancik-Kirschbaum (1999); Loretz (2003); Elsen-Novák and Novák (2006); Neumann (2008); Kessler (2008); Lanfranchi (2008). While Maul is primarily concerned with the role of the Ancient Near Eastern kings, the contributions

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the favour of Auramazda’, as the Behistun inscription emphasizes, Darius has attained power despite all opposition; in the words of an inscription by this king of Susa: ‘Thus was Auramazda’s desire: he chose me as (his) man in all the earth; me he made king in all the earth’ (DSf 12–18).6 With the god’s help, moreover, he has also been able to stay in power––by means of a victory over the ‘liar-kings.’7 As a consequence, he became the representative of the god on earth––admittedly without being the son of a god or possessing godlike qualities himself, as was the case for the rulers in Egypt and occasionally in Mesopotamia. Auramazda never withdrew his support of Darius during the course of his rule: ‘By the favour of Auramazda’, the king has become the friend of justice (DNb 6–8), through the grace of the god ‘who created this marvellous (creation) that is seen, who created blissful happiness for man, who bestowed wisdom and ability upon Darius, the king’8 (DNb 1–5). In summarizing, Darius emphasizes in his tomb inscription ‘that which has been done, all that by the favour of Auramazda I have done’, or, rather ‘I was able to do’9 (DNa 48–50). In other words, while royal success is dependent upon divine grace, at the same time it offers proof of the ruler’s divine election and emphasizes the legitimacy of the Great King’s claim to power. This perception is reflected by the fact that people who went to war against Darius all labelled from Cancik-Kirschbaum (re text) and Elsen-Novák and Novák (re image), as well as Lang (2008) (re text), deal mainly with the (Old Babylonian) evidence of the Codex Hammurabi. The article by Neumann (3rd Mill.), Kessler (Early and Late Babylonian period), and Lanfranchi (Early Ancient Near East period) are more advanced regarding the source materials. As Maul (1998), 77 correctly emphasizes for the first millennium: ‘While the Babylonian kings could only secure the blessing of Marduk through the intermediation of a priest in the context of the New Year festival, in which the gods each year decided and re-affirmed the destiny of the land and the world once more, in the Ancient Near Eastern New Year festival the Ancient Near Eastern king––and only he––served as an emissary to his god Assur as friend and ally. When the Ancient Near Eastern king showed himself to the people in the vestibule of the Assur temple, attired with the crown of the god Assur, it was clear to the Ancient Near Easterns that the mighty splendour of Assur was merged with the figure of the king. The position of the Ancient Near Eastern king as intermediary between the world of the gods and the world of humans could hardly have been more manifestly illustrated!’ 6 Auramazda¯m avaθa¯ ka¯ma a¯ha: haruvahya¯ya¯ bu¯miya¯ martiyam ma¯m avr.navata¯; ma¯m xsˇa¯yaθiyam akunausˇ ahya¯ya¯ bu¯miya¯. 7 Stausberg (2002), 165. 8 haya adada¯ ima frasˇam, taya vainatai, haya adada¯ sˇiya¯tim martiyahya¯, haya xraθum uta¯ aruvastam upari Da¯rayavaum xsˇa¯yaθiyam niyasaya. 9 aita, taya kr.tam, ava visam vasˇna¯ Auramazda¯ha¯ akunavam.

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supporters of the ‘lie’, people who planned to disturb or even overthrow the god-given hierarchy, which is guaranteed by the ruler. ‘The Great King calls upon the assistance of Ahuramazda¯ as a requirement for his decisive victory against them’10 (compare DB I 94–5). The opposite is also true: whosoever venerates Auramazda is immune to the temptations of the ‘lie’, i.e. the rebellion, of offending against the god’s good creation (XPh 35–41). When Darius writes in his inscription d from Persepolis, ‘May Auramazda protect this country from the (enemy) army, from crop failure (and) from Falsehood!’11 (DPd 15–18), on the one hand it shows that attacks by external enemies can threaten the divinely ordained system of peace and justifies the Great King’s retaliatory measures. On the other hand, it demonstrates that the ruler is also charged to serve as a good ‘gardener’ in the proper Ancient Near Eastern manner12 who makes a prosperous livelihood available to his land and people. Like the Ancient Near Eastern rulers before him, Darius and his actions are incorporated into the cosmic structure of order. As the representative of Auramazda and as the ruler by the grace of the god, it is the goal of his government to support justice and law in the empire, to destroy the evil ones who believe in the ‘lie’, and thus–– and the Achaemenids particularly emphasize this aspect in both text and image––to perpetuate Auramazda’s good creation, with the god’s help, in a humane, political-economic system of peace. That the Persian rulers and their ruling ideology are beholden to Ancient Near Eastern traditions and examples is shown particularly clearly in the Great Kings’ statements from Mesopotamia: in the text fragment of a Babylonian copy of the Behistun inscription, which replaces the name Auramazda with the name Bel,13 and in the celebrated inscription of the Cyrus cylinder, in which Teispes ‘unmistakably positions himself in the tradition of the legitimate kings of Babylon who preceded him, but does not attempt to connect himself genealogically with these kings in his formulaic self-introduction, but rather adheres to the bloodline of his Persian ancestors’.14

10 11 12 13 14

Ahn (1992), 300. uta¯ ima¯m dahya¯um Auramazda¯ pa¯tu haca¯ haina¯ya¯, haca¯ dusˇiya¯ra¯, haca¯ drauga¯. Novák (2002); Elsen-Novák and Novák (2005). Seidl (1999a; 1999b). Ahn (1992), 136.

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Marduk (. . .), to all the places, whose dwelling-places were in ruins, and to the inhabitants of Sumer and Akkad, who had become like corpses, he turned his mind, he became merciful. He searched through all the countries, examined (them), he sought a just ruler to suit his heart, he took him by the hand: Cyrus, king of Anshan, he called, for dominion over the totality he named his name. . . . Marduk, the great lord, who cares for his people, looked with pleasure at his good deeds and his righteous heart. ... I, Cyrus, king of the universe, mighty king, king of Babylon, king of Sumer and Akkad, king of the four quarters, son of Cambyses, great king, king of Anshan, grandson of Cyrus, great king, king of Anshan, descendant of Teispes great king, king of Anshan, eternal seed of kingship, whose reign was loved by Bel and Nabu and whose kingship they wanted to please their hearts. ... The city of Babylon and all its cult-centres I maintained in well-being. The inhabitants of Babylon . . . I allowed them to find rest from their exhaustion, their servitude I relieved. Marduk, the great lord, rejoiced at my (good) deeds. Me, Cyrus, the king, who worships him, and Cambyses, my very own son, as well as all my troops he blessed mercifully. In well-being we (walk) happily before him. (vv. 11–14, 20–2, 25–7; trans. A. Kuhrt)

Selected and legitimized by Marduk, Cyrus is commissioned by the god to re-establish the universal order that was lost through Nabonidus’ misconduct, producing peace and happiness for his new subjects and thus being confident that he possesses their god’s favour. Numerous connections exist between the Ancient Near Eastern and the Achaemenid forms of ruler legitimization, especially in their religious foundation and in the royal commitment to justice and law that was necessary to gain legitimacy and that is of particular interest for this chapter, namely in the area of ‘legitimation argumentation’.15 However, the Persian kings were not simply imitating the Ancient Near Eastern traditions; they created their own, particularly, as Gregor Ahn correctly emphasized, in the ‘forms of expression and images of this legitimation’.16 Here the reader will naturally think of the palace reliefs of the Achaemenid kings, which convey ‘a mythictranshistoric, ideal world of consummate authority’.17 The king stands in the midpoint of the terrestrial part of the universal order created and maintained by Auramazda; at least in the reliefs and on the external palace walls in Susa and Persepolis the power of the –– 15

Ahn (1992), 307.

16

Ahn (1992), 307.

17

Stausberg (2002), 167.

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mostly enthroned––king appears to be ‘established and far removed from the military events of the day––it does not need to be defended at all, at least not against mortal opponents’.18 The royal hero defeats hybrid creatures, the representatives of evil. He is waited on hand and foot by representatives of his subjects and of the military, and it is no longer necessary for him to trample on his earthly enemies as in Behistun; ‘Good fortune’ (OP x var ənah) is finally with him as a sign of divine selection and support––typified by the winged man in the reliefs. However, even when the subjugation of his people is not explicitly thematized in the images––at least in the art of the external walls of the palace and the royal burial places––it is implicitly present in the reliefs in the form of throne-carriers and gift-bearers and in the inscriptions in the form of references to the rewards of loyal service to the bandaka¯, whom the Greeks denounced as the douloi of the Great Kings. Michael Stausberg correlated the relationship between the god and the king to the relationship between the king and his subjects, and in this context––influenced by Jan Assmann––he spoke of ‘vertical solidarity’.19 Such a term is certainly applicable, but in the Achaemenid case it must be supplemented with the idea that the king also places upon himself the compulsion to act: he must guarantee his subjects law and justice, he must bestow upon them inner peace and prosperity, and he must protect them from external enemies. Darius and his successors can legitimately demand the loyalty of their subjects––an important theme in the inscriptions and the reliefs––because they are in the position to fulfil the duties set by Auramazda owing to the qualities conferred upon them by this selfsame god. Only in this way does the ruler have every right to punish disloyalty harshly, for, after all, this disloyalty is directed against the one who seeks only the best for his subjects in the name and mandate of the god. Darius used in his inscriptions the Old Persian word drauga (‘lie’) for everything that aligned itself against the divinely chosen authority of the Achaemenid kings, who guaranteed peace, prosperity, law, and order. This term, related to the Avestan word draoga and probably borrowed from the religious-ethical sphere of Zoroastrianism, stands for subject disloyalty, for insurrection and rebellion; followers of the drauga, such as the so-called ‘liar-kings’ of 18

Stausberg (2002), 167.

19

Stausberg (2002), 168.

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the monument at Behistun, transgress against the divinely ordained order. It has even been argued that Darius might have compared himself in his battle against the followers of the drauga with the Avestan hero Θraetaona, who was able to defeat the terrifying dragon Dahaka, who practiced draoga. The royal hero of the reliefs and seals who destroys monsters could thus be the visual realization of this belief.20 In any case, it is correct to emphasize that the Avestan counterpart to draoga-, asˇ.a- (‘justice’, ‘order’, ‘truth’) in its Old Persian form r.ta- is missing from Darius’ inscriptions. It appears only once in the famous Daiva¯ inscription of his son Xerxes (XPh 41, 51, 54) and there it probably refers to the proper worship of god–– similar to certain Avestan contexts (compare Yasˇt 8.15). In any case the word r.ta- is an element of the most popular throne name of the Achaemenid period, Artaxerxes (OP R.taxsˇaça¯; probably ‘he whose reign distinguishes itself through truth justice’). By the way, also other names of the Achaemenid line contain Avestan terms––as opposed to the Teispid line––or are directly attested to in Avestan onomastics. Michael Stausberg in the first volume of his History of Zoroastranism demonstrated clearly how the Achaemenids politically transformed younger Avestan religious–ethic concepts. This metamorphosis applies to the conception of Auramazda as a god who bestows and maintains sovereignty as well as to the politicizing transformation of dualistic beliefs. Thus draoga as taken from the field of ethics and morals became drauga, the ‘potential destabilization of the divinely-chosen political order’,21 and––in the inscription XPh––the Avestan ‘demon-worshippers’ (dae¯uuaiiasna-; dae¯uuaiia¯z-) became those who request the false, demonic help of their local gods in their rebellion and offer violent resistance to the anti-demonic, that is, Mazda-worshipping and divinely ordained religion-politics of Xerxes, who tries to prevent the drauga and to save the r.ta-. Father and son responded to both challenges with their own type of Auramazda worship; however, they never tried to enforce their system of beliefs violently against the rebels of an entire kingdom. Stausberg described the politicizing transformation of the Avestan concepts concisely: ‘The king directs his plea to Ahuramazda¯, he carries out the will of god, his law concurs with that of the god, and he destroys the demons and is the enemy of drauga-/druj- par 20

Stausberg (2002), 169–70.

21

Stausberg (2002), 170.

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excellence.’22 When Xerxes somehow imitates the lower tomb inscription of his father (DNb 1–49) in his own inscription XPl, it shows how timeless and programmatic the political proclamations of Darius were intended, and also understood, to be. All this constitutes the idea of pax Achaemenidica conveyed by the kings, the empire-wide order of peace, an image of the cosmic order of Auramazda. It did not always persuade all subjects in all periods: some did not recognize the prominent position of the ruler, or they did not wish to submit to the roles expected of them, or to that of their home provinces. Such subjects almost always subsequently experienced not only the withdrawal of rewards and privileges, but also punishment, in extreme cases mutilation, torture, and execution as ‘servants of lies’.23 Those who humbled themselves, who sought the company of the king or gave him gifts, could benefit from royal generosity. The example of Themistocles, the adversary of Xerxes and the victor of Salamis, shows that even mortal enemies were granted forgiveness and clemency when they requested it on time, if at the same time their advice could be useful to the king. Through the proclamations of Xerxes to his subjects: ‘Obey that law (da¯ta), which Auramazda has established! Worship Auramazda at the proper time and in the proper ceremonial style!’24 (XPh 49–51) we encounter another central term of the Achaemenid ‘legal terminology’: the da¯ta. This word (literally: ‘the recorded/stipulated’), indeed the entire command of the king, is reminiscent of an Avestan text that means that he who despises Ahura Mazda, the Aməsˇa Spəntas (the ‘beneficent immortals’), Mithra, the law (da¯ta-), Rasˇnu and justice, cannot obtain the favour of Ahura Mazda¯, the Beneficent Immortals, and Mirtha (Yt. 10, 139). Just as the law of the god has now become the law of the king, requiring kingdom-wide observance, the Old Persian term da¯ta has acquired universal meaning: the Babylonians, the speakers of Aramaic, the Jews, and the Armenians appropriated it as a loanword (da¯tu, da¯t, or dat), and numerous people adopted it as part of their names or their legal titles. Compared to it the feminine noun frama¯na¯ (‘order’, ‘command’) that also appears in the inscriptions, takes second place. 22

Stausberg (2002), 174. Compare Rollinger (2004). 24 avana¯ da¯ta¯ parı¯di, taya Auramazda¯ niyasˇta¯ya; Auramazda¯m yadaisˇa¯ r.ta¯ca¯ brazmaniya. 23

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Proclaims Darius, the king: By the favour of Auramazda these (are) the countries which I seized outside Persia; I ruled them; to me they brought tribute. What has been said to them by me, that they did. The law (da¯ta) that (was) mine, that held them (stable): Media, Elam, Parthia, Aria, Bactria, Sogdiana, Chorasmia, Drangiana, Arachosia, Sattagydia, Gandara, the Indus province, the Amyrgian Scythians, the Scythians with the pointed caps, Babylonia, Assyria, Arabia, Egypt, Armenia, Cappadocia, Lydia, Ionia, the Scythians beyond the sea, Thracia, the peltê-wearing Ionians, Libyans, Nubians, the Makran people, Carians.25 (DNa 15–30; trans. R. Schmitt)

It is not to be wondered at that a ‘law’ of such importance and such a fundamental nature as that to which Darius refers in his tomb inscription should have made a big impression throughout the empire. The Great King did not simply issue writs or distribute commands and orders, but rather he gave his subjects a clearly articulated, balanced, and well-founded system of order based on proper behaviour that conformed to the will of Auramazda, established and guaranteed law and justice for the benefit of all, and––in the words of Xerxes (XPh 54–6)––finally granted that the adherent of da¯ta ‘both becomes blissful (while) living and becomes blessed (when) dead’.26 The close connection between divine and royal da¯ta is underlined by the rescript [Reskript] of Artaxerxes I, quoted in the Book of Ezra, 7: 12–26, that refers to ‘the law of your [i.e. Ezra’s] God’ and the ‘law of the King’ in combination, while the Books of Daniel (6: 9, 13, 16) and Esther (1: 19) emphasize the inviolable nature of the da¯ta of the Medes and the Persians. It is also not to be wondered at that the expression ‘the law of the king’ (da¯tu sˇa sˇarri) is also first found in Babylonian documents, if the author is correctly informed, in the time of Darius I, the man who bestowed decisive importance upon the word da¯ta. The Babylonian economic and legal texts make reference to actual Achaemenid legal provisions and not to the legal order as a whole.27 Peter Frei, an ancient historian from Zurich, was inspired by the comprehensive meaning of the word da¯ta in the royal inscriptions to postulate the adoption of local norm-setting by the Achaemenid imperial centre in a type of ‘imperial law’. He coined the term ‘imperial authorization’ for this occurrence and defined it thus: . . . tayasˇa¯m haca¯ma aθanhya, ava akunava; da¯tam, taya mana¯, avadisˇ ada¯raya . . . 26 27 hau uta¯ jı¯va sˇiya¯ta bavati uta¯ mr.ta r.ta¯va¯ bavati. Schmitt (1996). 25

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Under imperial authorisation, I mean that the norms set on a local level of jurisdiction are not simply approved and accepted by the central level, but are adopted and made into its own norms. The local norm is thus made binding and secured in the context of the entire governmental body, i.e. of the empire, as the norm of a higher quality is said to have been for everyone.28

In other words, Persian imperial law was created from a multiplicity of all national and regional laws, regulations, and decisions, provided that they were adopted by the Persians through imperial authorization as Persian imperial law. This theory first found adherents in Old Testament scholarship, in which it was believed that the recognition of the Jewish Torah that Ezra allegedly obtained from the Persians could be also interpreted in the context of imperial authorization. The different Jewish groups would have compiled their opinions in the Pentateuch and had them authorized by the Persian imperial government.29 In contrast to Frei and the Hebrew Bible adherents of the imperial authorization theory, this author is convinced that in the Achaemenid Empire the norms set on a local level were only adopted and ratified on a central level when they were relevant to ruling politics and universally applicable to the entire empire. In those texts that are not from the Hebrew Bible and in Artaxerxes’ rescript in the Book of Ezra, which Frei cited to support his thesis, he finds no evidence that anything like a ‘Persian imperial law’ existed in which local norms were adopted as imperial norms. The author has difficulty with such an idea not only because of his own divergent interpretation of the sources, and because in such circumstances we would then expect to find contradictory regulations in an imperial law, but also owing to the conclusion that would necessarily result from this thesis: that with such a structure the Achaemenid empire differed fundamentally from the other early Great Empires of the ancient world.30 In recent years the influence of preceding empires on the Persian Empire has been proved conclusively.31 Is it really plausible that an Achaemenid ruler such as Darius would have created something so unprecedented 28

Frei (1995), 1. For the status of the discussion, see Watts (2001); Schmid (2006). 30 Wiesehöfer (1995). 31 For the meaning and influence of the Codex Hammurabi and other Ancient Near Eastern ‘Codices,’ that are often mentioned in this context, see Westbrook (1989); Renger (1994); Maul (1998); Hengstl (1999); Cancik-Kirschbaum (1999); Wilcke (2002); Westbrook and Beckmann (2003); Loretz (2003); Neumann (2003). 29

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(a constantly perpetuated collection of laws, a Persian imperial law, or a type of Corpus Iuris Achaemenidicum), while a Lagid ruler such as Ptolemy II, who would certainly have known of such an arrangement, would have abstained from ‘creating a consistent order of law for his reign’?32 This is not to cast doubt on the law-setting actions of the Persian kings and satraps. In contrast, however, to Roman lawgiving on an imperial or provincial level in Late Antiquity, such legal decisions in the Achaemenid Empire were generally issued ‘on a caseby-case-scenario . . . based on an unsystematically general opinion of the law’ through written decrees and other announcements,33 and, with the intention of establishing peace under the law to serve political-military, administrative-judicial, and above all fiscal interests. Our sources confirm that the documents that in Babylon or Judaea use the loanword da¯ta refer to precisely such individual cases, not to an imperial law. Decisions or directives of the Persian authorities and authorized local norms were documented and archived (by the state as well as those looking for guarantees), not for the purposes of compiling an imperial law based on local decisions, but, on the contrary, to provide for later verifiability of decisions issued or local norms that had been approved. By the way, such individual decisions were reversible in principle, as the revocation by Darius of Cambyses’ arrangements for the Egyptian temples proves.34 Only the basic fundaments of Persian reign that were determined through the da¯ta of the royal inscriptions were unchangeable: the recognition of the ruler as lord, the payment of taxes, and the obligation of military service. The author is not certain if the idea of a transfer of local norms to imperial ones is not also subconsciously based in the perception that a ‘strong empire’–– which the Persian empire was, without question––is also characterized by how it (like a modern nation-state) gathers as many competencies as it can, administering or standardizing centrally as much as possible. In the author’s opinion, the strength of the Achaemenid Empire was founded in the way that the governmental authorities, with the Great King at the head, administered as infrequently as possible on a local level, decisively intervening only in situations in which peace and order could be endangered by non-intervention and in cases that were important for the recognition of the necessity of 32 34

33 Hengstl (1993), 46. Hengstl (1993), 48. Wiesehöfer (1995), 38–41.

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military service and tax payment. Even in such matters they frequently waited for initiatives from subjects and tried as much as possible to avoid imposing rules. On the contrary, they permitted them to be determined locally and have them authorized on a provincial level and documented for all eventualities. In the areas of cult and religion, local practices were not merely tolerated; instead, the Persian authorities proved themselves to be benefactors and sponsors of native cults and ritual places of worship, both in acknowledgement of the significance of religious convictions and in recognition of the political-ideological and economic ‘power’ of the priesthood and the sanctuaries. Xerxes’ inscription against the daiva¯ with its concentration on the da¯ta originally established by Auramazda calls to mind––in an Iranian context––the fundamental nature of the cosmic and earthly order and the duty of the subjects to absolute loyalty, which can best be internalized ––according to Xerxes––by the veneration of Auramazda. It is not to be wondered at, in view of the Achaemenid skill in dealing with the traditions of their subjects, which admittedly was always accompanied by strict measures of control, that the Persian empire was not destroyed by internal rebellion but was conquered from outside. The Achaemenid ideas lived on, however, in many features of the empires that followed, and many sources that founded traditions have preserved a conception of the merits of the Achaemenid regime for the members of the empire. Even without an imperial authorization of local norms and without an imperial law, many of them wished to observe the da¯ta of the Great King because they were then rewarded with local legal security and religious and cultic autonomy.

III To summarize: the Achaemenid kings conceived of themselves entirely in the Ancient Near Eastern manner––as defenders and supporters of law and justice. As those invested with authority by Auramazda and as Great Kings by the grace of the god, their tasks were to ensure that justice prevailed in the empire through the balance between strong and weak, to punish the enemies of justice, and thus to reproduce and to make permanent the good creation of

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Auramazda––with the god’s help––in a political-economic order of peace. To illustrate these objectives and these self-conceptualizations in word and image, they made use, at least in the Iranian context, of Zoroastrian-Avestan terminology and Zoroastrian-Avestan symbolism in which they politically transformed Younger Avestan religious-ethical concepts. This applies particularly to the characterization of disobedient subjects and lawbreakers in need of punishment who were denounced as adherents of the drauga, the lie. The transgression of these people or groups was above all that they had positioned themselves against the alleged divinely ordained political order, and that they had sought to destroy the link between the Great King and his subjects that was ostensibly of use to both and for the good of the entire empire; in other words, they had been disloyal to the ruler. The Old Persian–Avestan word for the divine commandment, as well as derived from it, for the royal one, da¯ta, is one of the keywords of the Achaemenid royal inscriptions. Owing to its comprehensive meaning, its range, and its divine sanction, but particularly since there were noticeable advantages in the pax Achaemenidica that was built on its observance, this word became not only the hallmark par excellence of the Achaemenid legal order but was also borrowed by countless non-Iranian languages. We should not let ourselves be misled by the term da¯ta to postulate an Achaemenid imperial law, in which––in contrast to earlier and later Ancient Near Eastern legal systems––local laws were adopted on an imperial level through the actions of an imperial authorization, however. The Achaemenid kings too decided legal cases mostly in accordance with local circumstances on a case-by-case basis. The astute and diplomatic nature of their political actions, featuring rewards more often than punishment, resulted in a reputation for virtuousness and the characterization of their rule as legitimate and fair during their lifetimes as well as afterwards, if not in Greece, than in the central lands of their empire.

REFERENCES Ahn, G. (1992), Religiöse Herrscherlegitimation im achämenidischen Iran: Die Voraussetzungen und die Struktur ihrer Argumentation (Acta Iranica 31 series 3: Textes et mémoires 17; Leiden: E. J. Brill).

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Barta, H., Rollinger, R., and Lang, M. (eds.) (2008), Recht und Religion: Menschliche und göttliche Gerechtigkeitsvorstellungen in den antiken Welten (Philippika 24; Wiesbaden: Harrassowitz). Cancik-Kirschbaum, E. (1999), ‘‘König der Gerechtigkeit’–– ein altorientalisches Paradigma zu Recht und Herrschaft’, in G. Palmer et al. (eds.), Torah, nomos, ius. Abendländischer Antinomismus und der Traum vom herrschaftsfreien Raum (Berlin: Vorwerk 8), 52–68. Elsen-Novák, G., and Novák, M. (2005), ‘‘Ich bin der wahre Weinstock und mein Vater ist der Weingärtner’. Zur Semiotik des Weinstocks in Joh 15, 1–8 aus Sicht der Altorientalistik’, in A. Weissenrieder, et al. (eds.), Picturing the New Testament: Studies in Ancient Visual Images (WUNT 193; Tübingen: Mohr Siebeck), 183–206. —— (2006), ‘Der ‘König der Gerechtigkeit’. Zur Ikonologie und Teleologie des ‘Codex’ Hammurapi’, BaghM 37: 131–55. Frei, P. (1995),˘ ‘Die persische Reichsautorisation. Ein Überblick’, ZAR 1: 1–35. Hengstl, J. (1993), ‘Zur Frage der Rechtsvereinheitlichung im frühbabylonischen Mesopotamien und im griechisch-römischen Ägypten’, RIDA series 3, 40: 27–55. —— (1999), ‘Der “Codex” Hammurapi und die Erforschung des babylonischen Rechts Textes und seine Bedeutung für die vergleichende Rechtsgeschichte’, in J. Renger (ed.), Babylon: Focus mesopotamischer Geschichte, Wiege früher Gelehrsamkeit, Mythos der Moderne. 2. Internationales Colloquium der Deutschen Orient-Gesellschaft 24.–26. März 1998 in Berlin (Saarbrücken: SDV, Saarbrücker), 445–65. Kessler, K. (2008), ‘Gott––König––Tempel. Menschliches Recht und göttliche Gerechtigkeit in neu- und spätbabylonischer Zeit’, in Barta, Rollinger, and Lang, 73–92. Lanfranchi, G. B. (2008), ‘Divine Justice and Law in the Neo-Assyrian Period’, in Barta, Rollinger, and Lang, 93–108. Lang, M. (2008), ‘Zum Begriff von menschlicher und göttlicher Gerechtigkeit in den Prologen der altorientalischen Codices’, in Barta, Rollinger, and Lang, 49–71. Loretz, O. (2003), Götter––Ahnen––Könige als gerechte Richter: Der ‘Rechtsfall’ des Menschen vor Gott nach altorientalischen und biblischen Texten (AOAT 290; Münster: Ugarit-Verlag). Maul, S. (1998), ‘Der assyrische König––Hüter der Weltordnung’, in J. Assmann et al. (eds.), Gerechtigkeit: Richten und Retten in der abendländischen Tradition und ihren altorientalischen Ursprüngen (Munich: Fink), 65–77. Neumann, H. (2003), ‘Recht im antiken Mesopotamien’, in U. Manthe (ed.), Die Rechtskulturen der Antike: Vom Alten Orient bis zum Römischen Reich (Munich: C. H: Beck), 55–122, 322–7.

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Neumann, H. (2008), ‘Göttliche Gerechtigkeit und menschliche Verantwortung im alten Mesopotamien im Spannungsfeld von Norm(durch)setzung und narrativer Formulierung’, in Barta, Rollinger, and Lang, 37–48. Novák, M. (2002), ‘The Artificial Paradise: Programme and Ideology of Royal Gardens’, in S. Parpola and R. M. Whiting (eds.), Sex and Gender in the Ancient Near East: Proceedings of the 47th Rencontre Assyriologique Internationale, Helsinki, July 2–6, 2001 (Helsinki: The Neo-Assyrian Text Corpus Project, Part II), 443–60. Pongratz-Leisten, B. (2002), ‘ “Lying King“ and “False Prophet“. The Intercultural Transfer of a Rhetorical Device within Ancient Near Eastern Ideologies’, in A. Panaino and G. Pettinato, Ideologies as Intercultural Phenomena: Proceedings of the Third Annual Symposium of the Assyrian and Babylonian Intellectual Heritage Project Held in Chicago, USA, October 27–31, 2000 (Milan: Melammu Symposia, 3), 215–43. Renger, J. (1994), ‘Noch einmal: Was war der “Kodex“ Hammurapi: Ein erlassenes Gesetz oder ein Rechtsbuch?’, in H.-J. Gehrke (ed.), Rechtskodifizierung und soziale Normen im interkulturellen Vergleich (ScriptOralia 66; Tübingen: Gunter Narr), 27–58. Rollinger, R. (2004), ‘Herodotus, Human Violence and the Ancient Near East’, in V. Karageorghis, and I. Taifacos (eds.), The World of Herodotus: Proceedings of an International Conference Held at the Foundation Anastasios G. Leventis, Nicosia, September 18–21, 2003 (Nicosia: Foundation Anastasios G. Leventis), 121–50. Schmid, K. (2006), ‘Persische Reichsautorisation und Tora’, ThR 71: 494–506. Schmitt, R. (1996), ‘Da¯ta’, EIr VII, 114–15. Seidl, U. (1999a), ‘Eine Triumphstele Dareios’ I. aus Babylon’, in J. Renger (ed.), Babylon: Focus mesopotamischer Geschichte, Wiege früher Gelehrsamkeit, Mythos der Moderne. 2. Internationales Colloquium der Deutschen Orient-Gesellschaft 24.–26. März 1998 in Berlin (Saarbrücken: SDV, Saarbrücker), 297–306. —— (1999b), ‘Ein Monument Dareios’ I. aus Babylon’, ZA 89: 101–4. Stausberg, M. (2002), Die Religion Zarathushtras: Geschichte––Gegenwart–– Rituale (3 vols.; Stuttgart: W. Kohlhammer, i). Watts, J. W. (ed.) (2001), Persia and Torah: The Theory of Imperial Authorization of the Pentateuch (SBL Symposium Series 17; Atlanta: Society of Biblical Literature). Westbrook, R. (1989), ‘Cuneiform Law Codes and the Origins of Legislation’, ZA 79: 201–2. —— and Beckmann, G. M. (eds.) (2003), A History of Ancient Near Eastern Law (2 vols.; Handbuch der Orientalistik 72; Leiden: Brill).

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Wiesehöfer, J. (1995), ‘ “Reichsgesetz” oder “Einzelfallgerechtigkeit”. Bemerkungen zu P. Freis These von der achaimenidischen “Reichsautorisation” ’, ZAR 1: 36–46. —— and Rollinger, R. (2012), ‘Periodisierung und Epochenbewusstsein in achaimenidischer Zeit’, in J. Wiesehöfer and Th. Krüger (eds.), Periodisierung und Epochenbewusstsein in Alten Testament und in seinem Umfeld (Oriens et Occidens 20; Stuttgart: Steiner). Wilcke, C. (2002), ‘Der Kodex Urnammu (CU): Versuch einer Rekonstruktion’, in Z. Abusch (ed.), Riches Hidden in Secret Places: Ancient Near Eastern Studies in Memory of Thorkild Jacobsen (Winona Lake: Eisenbrauns), 291–333.

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3 Law and Religion in Early Greece Michael Gagarin

At the beginning of Ancient Law, Sir Henry Maine proposes that law evolved in human societies in a number of stages, the third of which is ‘the era of Codes’. Among these codes he includes the Twelve Tables, the ‘Code of Solon’, and the laws of Menu (sic). He then observes:1 Quite enough remains of these collections, both in the East and in the West, to show that they mingled up religious, civil, and merely moral ordinances, without any regard to differences in their essential character; and this is consistent with all we know of early thought from other sources, the severance of law from morality, and of religion from law, belonging very distinctly to the later stages of mental progress.

Like many of Maine’s enduring observations, this one has more than a grain of truth to it, and the laws of Manu and the codes we find in the Old Testament fit Maine’s description well. Early Greek law is another matter.2 None of the surviving laws of Solon is a ‘merely moral ordinance’ and the only religious laws we can safely attribute to Solon concern public sacrifices and the cost of sacrificial animals, which involve the expenditure of public funds and are thus not merely religious (F81–6).3 If we wish to find the mixture of ordinances Maine is describing in Greek culture, it is not to law but to poetry that we must look, notably to Hesiod’s Works and Days, 1

Maine (1861), 9 in the 1917 Everyman’s Library edition (italics his). This is not the place to discuss the Twelve Tables, but I would argue that with respect to religion these are closer to Greek law than to the Near Eastern and Eastern codes. 3 I cite Solon’s laws from the standard collection of Ruschenbusch (1966). See also Parker (1996), 43–55 on ‘Solon’s Calendar’ (cf. n. 19). 2

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which mingles rules we can classify as religious, moral, legal, and practical together in an undifferentiated collection. But the Greeks certainly would not have considered the Works and Days a legal text, even if Hesiod was somehow inspired to compose the poem by his pending lawsuit against his brother Perses, as some have thought.4 No collections of texts that the Greeks would call laws have this character, nor (as far as we know) did Greece ever go through a stage of development in which they had collections of rules of the sort Maine describes. In the first part of this chapter, therefore, I will propose a different view of the relationship between law and religion in early Greece, which can be summarized in two basic propositions. First, from the beginning, law in Greece never manifested itself as part of a general collection of diverse rules in which religious, legal, moral, and other rules were gathered together without distinction. Law was always an institution in its own right. Second, laws, clearly designated as such, included rules about religious matters, but primarily (or only) because the community had a substantial public interest (usually financial) in these rules. I will conclude the chapter with a look at religion in classical Athenian law, focusing on asebeia (impiety) and the trial of Socrates. Our earliest evidence for law in Greece is poetic, specifically the poems of Homer and Hesiod, which stem from an oral tradition but were put in writing around 700 bce.5 In Homer, a procedure that is recognizably judicial is portrayed on the shield of Achilles (Iliad 18. 497–508), and is mentioned or alluded to in several other places,6 but we find no trace of any collection of rules, let alone a collection with a mixture of kinds of rules described by Maine. Characters in Homer occasionally state a rule that we might consider a law, but these are few, widely scattered, and at times contradictory. In fact, to the extent that law exists in Homer, it is in the form of procedure not rules. As procedure, moreover, law in Homer is entirely secular. The trial shown on Achilles’ shield involves two men who have come seeking a 4

For a recent discussion see Tandy and Neale (1996), 5–9, 39–48. All subsequent dates in this chapter are bce unless the contrary is indicated or obvious. I am ignoring Bronze Age Greece (c.3000–1100), since even if law existed in some form during this period, we have no evidence for it. 6 For the shield scene and judicial procedure in general in early Greece, see Gagarin (2008), 13–38; also Gagarin (1986), 19–50, Gagarin (2005). 5

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resolution to their dispute over the blood-money to be paid for a man who was killed. A group of elders listen to their pleadings and each in turn declares his judgement. A crowd of onlookers, restrained by heralds, shout out in support of either side, and in the end a prize is given to the elder who declares the straightest (i.e. best) judgement.7 Although many questions remain about details of this scene––Homer, after all, is a poet, not a legal historian––and although it contains elements of ritual performance, there is no trace of religion in it: no priest, no temple or sanctuary or altar, no sacred text. Nor are any such features found or even hinted at in any other references to this procedure in Homer. On the other hand, one way in which religion is sometimes portrayed as affecting law in Homer is that kings, who are among those who settle disputes in Homer, are said to have their authority from Zeus, and more particularly are said to have themistes from Zeus.8 However one translates themistes, they appear to designate the accumulation of customary rules and traditions of the community.9 These must guide any king or elder who settles disputes, since any effective settlement must be consistent with the values and beliefs of the community. But the fact that kings are said to have their authority from Zeus in no way makes dispute-settlement or any other activity of theirs religious. There is no divine right of kings in Homer. In fact ‘kings’ is in many ways a misleading translation of basileus in Homer and in Greek culture generally before the Hellenistic period. There are many ‘kings’ in Homer, twelve, for example, on the island of Phaeacia alone with Alcinous as the 7

‘Meanwhile a crowd gathered in the agora, where a dispute | had arisen: two men contended over the blood-price | for a man who had died. One swore he would pay everything, | demonstrating this to the people. The other refused to accept anything. | Both were eager to find a conclusion at the hands of an umpire (isto¯r). | People were shouting out on both sides, supporting both litigants; | but the heralds restrained them. And the old men | took seats on polished stones in a sacred circle; | they held in their hands the scepters of loud-voiced heralds. | Then the two men came quickly before them, and one after the other they gave their judgments (dikazein). | In the middle lay two talents of gold, | to be given to the one among them who would speak the straightest judgment (dike¯).’ 8 e.g. Nestor says to Agamemnon, ‘Zeus has given you the scepter and the themistes’ (Iliad 9. 98–9; cf. 1. 238–9, etc.). 9 See Calhoun (1962), 439. Maine (1861), 3 takes themistes to be ‘judgements’, not laws, influenced (it appears) by a false parallel with early common law. Even as judgements (i.e. judicial precedents), however, themistes must be a reflection of customary law.

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thirteenth (Odyssey 8. 390–1): ‘these are not “rulers” or “monarchs”; rather, they are best explained as an aristocracy-in-formation’.10 Thus, these kings have a certain amount of authority, which may be derived from Zeus, but in settling disputes they act more as arbitrators than as divinely authorized judges. One other way in which gods in Homer may affect matters we would consider legal is that Zeus is often said to protect those who are otherwise unprotected by the legal process. As is common in early societies, in Homer it is the duty of victims themselves or their relatives to obtain redress (whether vengeance or compensation) for wrongs they have suffered. However, certain figures in the poems–– primarily guests and beggars––are essentially outside the social structure and are thus at the mercy of their hosts. If they are mistreated, human justice will do nothing for them, and so they are protected by Zeus, who will at some point bring divine justice down on the offender. This does not bring religion into the Homeric judicial process, but it does raise the possibility of divine interest in human justice. Of course, Homeric gods are elsewhere represented as having little or no interest in human affairs, so the most we can say is that the Homeric gods are part of the background or context for law in Homer. But a general divine concern with human justice is indicated in a simile in the Iliad (16. 387–8), where the noise of chariots in battle is compared to the thunder accompanying the devastation Zeus sends when he is angry at mortals ‘who with force (bie¯) in the agora judge with crooked themistes and drive out justice (dike¯), not heeding the regard of the gods’. These lines portraying Zeus as an overseer of justice foreshadow the portrayal of Zeus’s interest in justice in the poems of Homer’s near contemporary, Hesiod. In his Works and Days, Zeus also acts as a kind of overseer of the legal process who will punish those who violate or misuse the process by means of ‘crooked’ justice. The main violations he punishes are swearing false oaths, uttering false statements in court, and handing down crooked (i.e. unfair) settlements. In a long passage, Hesiod admonishes litigants (represented by his brother Perses) and judges (kings), and warns that violence (bie¯, hybris) will eventually lead to punishment from Zeus. Zeus thus has a role in ensuring the existence of a fair and effective legal process, but the process itself remains secular and in fact remains very much 10

Raaflaub (1997), 636.

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as it is in Homer. It is portrayed most fully in the prologue to Hesiod’s other long poem, the Theogony, where kings, like poets, are said to have the gift of the Muses. A king’s speech is soothing and persuasive, and this helps him settle disputes in the agora according the rules (themistes), and in turn the people honour him like a god (84–92).11 Thus the Muses endow the king with persuasive speech and the good judgement that goes with it, and he is honoured like a god; but the judicial process is just as secular as it is in Homer. The judicial process described above belonged to the period of what I call ‘oral law’ (not to be confused with ‘oral laws’, for which we have little evidence), in which a fairly well-developed judicial process existed without a trace of writing. Judgements were rendered within the context of the themistes, the customs and traditions of the community, but these were never collected or formalized into any body of rules. Oral law was simply procedure. Things changed with the introduction of writing into the Greek world around 800 bce. Our earliest examples of writing consist primarily of graffiti often scratched on pieces of pottery. Not until around 650 do we begin to get public inscriptions, and the vast majority of public inscriptions in the seventh and sixth centuries are laws. These come from all over the Greek world, though there is a concentration on the island of Crete, and they cover a very wide range of subjects––public (civic status, conduct of officials, requirements for office, etc.) and private (family, inheritance, commerce, sale, homicide, rape, etc.). Almost all these laws are secular, though there are a few that scholars have categorized as ‘sacred laws’. Before looking more closely at these, we should note that during the course of this period most Greek cities were growing in size and population and were reaching their full development as independent, self-governing poleis (city-states), each with its own set of laws. Each of these cities established public spaces for its citizens; these usually included an agora where public business would be transacted and sacred places, primarily temples, altars, and sanctuaries. Sanctuaries 11 ‘Soothing words flow from his mouth. And the people | all behold him, distinguishing the rules (themistes) | with straight settlements (dikai). And he, speaking surely, | quickly and skillfully puts a stop to even a large dispute.| This is why there are intelligent kings, so that for people | who have been disadvantaged they may restore matters in the agora, | easily, persuading them with soft words. | And as he comes to the gathering, they honour him like a god | with gentle reverence, and he is conspicuous among those assembled.’

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were often located in rural areas, perhaps as a means of marking territory (de Polignac (1995)), whereas temples were often located more centrally, either on an acropolis or in the vicinity of the urban centre. Altars could be associated with temples or sanctuaries but could also stand alone. From its earliest manifestations, religion in these communities appears to be a largely civic institution. Most sacred spaces were established by communities, though some families may have set up altars or small local sanctuaries. The practice of religion took the form of festivals, sacrifices, and dedications or offerings. The latter are usually personal expressions of thanks for some past event (birth, recovery from disease, athletic success) or of hope for successful events of this sort in the future. Festivals and sacrifices, on the other hand, are usually communal events, organized by the city, and the priests who conducted sacrifices, managed festivals, and oversaw the operation of sanctuaries were often public officials. Some priesthoods were hereditary, others were obtained by election, allotment, or sale,12 and the duties of public officials often included religious matters. Organized religion was closely connected to the state, and sacred texts, as we usually think of them, had no place in Greek religion before the rise of mystery cults such as Orphism in the fifth century. Hymns were composed for various gods, but these never attained any special authoritative status, and for the most part the gods were defined by the picture of them presented by Homer and Hesiod. Finally ‘belief’ in the gods was inseparable from practice. One sign of this, as we shall see in connection with the trial of Socrates, is that among the range of meanings of the Greek verb nomizein are both ‘believe’ and ‘practise’. To illustrate the close link between civic and religious affairs, we may cite the agreement made around 600 between the Cretan city of Datala and a certain Spensithios (SEG 27. 631). The agreement specifies that the city is to provide Spensithios, who is designated a ‘recorder’, and his family many benefits, including payment of goods and freedom from taxes; in return, Spensithios is to ‘record and 12 Priests who tended sanctuaries derived income from people who wished to make a dedication in the sanctuary, who would be charged a small fee; some priesthoods could thus be quite lucrative. Dedications, as noted, were commonly made in the hope of a favourable outcome, or as an offering of thanks for past success. Offerings could range from tiny clay figurines to large statues and other expensive objects.

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remember for the city public matters (damosia), both divine and human (ta te the¯ia kai ta tanthro¯pina)’. The agreement then repeats these terms in a negative clause: ‘no one else besides Spensithios and his family is to record and remember for the polis public matters either divine or human, unless Spensithios and his family give permission’. A little later the agreement further specifies that ‘at all occasions, both divine and human, at which the kosmos is present, the recorder too shall be present and participate. And for whatever god there is no special priest, the recorder shall both perform the public (damosia) sacrifices and shall receive the income from the precinct.’13 Several points stand out here. First, Spensithios is a public official, whose duty to record and remember includes all public affairs,14 and these affairs are both sacred and secular (‘divine and human’). Second, Spensithios is in essence an assistant to the kosmos, who is the highest public official in the cities of Crete. Thus, like Spensithios, the duties of the kosmos also include sacred and secular matters. Third, Spensithios is to conduct sacrifices when there is no priest to do this. Priests probably conducted the most important sacrifices to major gods, but ordinary, non-specialist officials conducted other sacrifices, probably those that were less important or devoted to minor deities. The agreement with Spensithios makes clear that the public business of the city and the duties of public officials included both sacred and secular matters. And the same combination of sacred and secular is found in the private sphere, as we can see from a provision in the Gortyn Code (from around 450), which specifies that an adopted son is to inherit from his adopting father in the same way as a natural son would, as long as he fulfils the adopter’s obligations, ‘divine and human’ (ta thina kai ta antropina).15 The specification of both divine and human obligations is consistent with Greek custom everywhere, which holds children, especially sons, responsible for carrying out a proper burial for their parents and tending to their tombs for the indefinite future, as well as for satisfying the deceased’s debts and other material obligations. 13

Jeffery and Morpurgo-Davies (1970). I have cited lines A.4–8 and B.4–6. Damosia (public matters) is derived from the noun damos, the Cretan form of de¯mos, ‘the people’. 15 Inscriptiones Creticae IV, 72. 10. 42–3. A convenient edition of this Code with English translation is Willetts (1967). 14

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These texts show that although the Greeks distinguished between sacred and secular matters, both were considered public business, if they concerned the city, or private if they concerned only an individual or family. Thus, as Parker puts it, ‘the distinction between the non-sacred and the sacred is not a division between the city and something outside it, but one within the concerns of the city’.16 It is no surprise, therefore, to find that the Greeks did not clearly distinguish sacred laws from the rest of the laws of the city. To cite Parker again, sacred laws are ‘laws, different in no regard except subject matter from other laws and decrees of the community that issued them’.17 Nor is it surprising, therefore, that the Greeks themselves at this time did not recognize a category of ‘sacred laws’. This is a modern (late-nineteenth-century) creation, serving the needs of scholars, who have found it useful to collect together laws dealing with religious matters; but the result is a modern, not ancient, collection. Sacred laws in this sense can be subdivided into those that regulate sanctuaries and sacred space, cult officials (primarily priests), cult performance (primarily sacrifices), and festivals and ceremonies, and within each of these categories certain kinds of law tend to recur.18 Typical laws concerning sanctuaries state requirements for entry into or use of the sanctuary. These may prescribe various sorts of purification for entry (clean hands), or forbid entry to certain kinds of people (such as foreigners, women, or criminals), or forbid the bringing of certain objects into the sanctuary (often weapons), or prohibit certain activities within the boundaries of the sanctuary (camping, littering, cutting wood, grazing cattle, etc.), or regulate dedications within the sanctuary, or prescribe the foundation of a sanctuary, construction of a temple or other building (or prohibit such construction), or regulate the maintenance and repair of sanctuary buildings, or the leasing of sanctuary property and other sorts of sacred land. 16

17 Parker (2004), 57. Parker (2004), 58. This list is based on the subheadings of Lupu’s introduction, which provides a very useful overview of the material (Lupu (2005), 3–112). I should note, however, that Lupu’s material comes from the entire duration of Greek civilization, from the archaic period to the first centuries ce under Roman rule. Not all kinds of laws would have existed in early Greece. On the other hand, the relatively few laws that do survive from the archaic period (many of them quite fragmentary) certainly do not give a full picture of all the different kinds of laws that were probably enacted during this period. 18

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Most laws concerning cult officials regulate the acquisition of priesthoods, but others regulate the conduct of priests or specify their duties. Laws concerning cult performance overwhelmingly concern sacrifice; most of these list the sacrifice or sacrifices that are supposed to be performed either on one occasion or regularly (monthly or annually). These range from a single sacrifice at a small sanctuary, to an extensive list of sacrifices for an entire city. Athens, for instance, reorganized its public sacrifices at the end of the fifth century and then inscribed the resulting calendar of sacrifices on a wall in the agora.19 Sacrificial calendars are among the earliest known Greek laws, and although all are quite fragmentary, the basic pattern is clear. A seventh-century text from Dreros in Crete reads, ‘in the Pythion five . . . in the Agoraion thighs’ (the Pythion and Agoraion are temples of Apollo and Zeus respectively). Slightly fuller is an early-sixth-century text from Gortyn (Inscriptiones Creticae IV, 3), the first four lines of which read, 1 (These) sacred rites are performed . . . in the month Welkanios . . . on the fifth day 2 . . . a grown (bull?) and a goat on (the ? day), a ewe to Apollo . . . a bull 3. . . . to Hera a ewe, to Demeter a ewe about to give birth 4. . . . the two females but the two males and a goat

These laws regulate what was sacrificed when and to whom. In addition, when an animal was sacrificed to a god, only a very small amount was burned or left on the altar; the rest was usually distributed to the participants. Thus some laws regulate who could participate (since there would be only a limited amount of meat to distribute). In other cases some or all of the meat would be sold, and some laws regulated this too. Finally, laws concerning sacrifices sometimes grant part of the meat to the priest. Besides sacrifices, other sorts of cult performances regulated by sacred laws are funerary practice (often imposing restrictions on what can be done or how much can be spent), and purification rituals (especially after a death). In addition, some laws regulate the foundation of a new cult practice; sometimes these are endowed by 19 Only scattered fragments of the sacrificial calendar remain, but the reorganization of this calendar was part of the overall reorganization and reinscription of all the laws of Athens, and the calendar was displayed in the agora together with these other laws. It is likely that this calendar incorporated earlier material, some of which may go back to a Solonian calendar; see Parker (1996), 43–55.

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the city, but more often, especially in later periods (Hellenistic and Roman), they are established and endowed by private individuals as public benefactions. Finally, some sacred laws regulate festivals and ceremonies; these sometimes give elaborate details about processions and other events during the festival, but especially about the sacrifices that regularly were part of festivals. Details about the latter include the time and manner of the sacrifice, the size or quality of the sacrificial animal or animals, the distribution of the meat, and other matters. Now, among all these various sacred laws, we may be able to single out a few as purely religious. Most of these would be laws of the sort described above that regulate entry into or use of a sanctuary and that would be displayed only at the sanctuary itself, often at several places around its edges; in some cases these are akin to a ‘No Trespassing’ sign a private landowner might post today. These are usually classified as sacred laws, though one may question whether, or in what sense, they really are laws. Be that as it may, the large majority of sacred laws do have a public dimension in that they involve the expenditure of public funds or the imposing of fees or taxes in order to support the work of the sanctuary. Even a brief list of sacrifices––so many sheep to one god, so many goats to another–– involves public expenditure, since the animals for sacrifice would have to be paid for and, except in the rare case of private donation, the funds for this would have to come from the city. Thus, sacred laws, which for the most part were indistinguishable from other sorts of laws in terms of their manner of enactment and publication and place of display, were not only not given a separate classification by the Greeks but most would probably have been viewed as no different in their essential function from other civic laws. One illustration of this is a speech delivered in an early-fourthcentury trial (Lysias 30) in which the prosecutor accuses one of the officials in charge of the reorganization of laws, including sacrifices (mentioned above), of exceeding his authority. The motive for the prosecution for which this speech was written almost certainly had to do with the claim that the reorganization imposed too heavy a financial burden on the city. The speaker is not concerned that the new list of sacrifices may violate any religious laws; it is entirely a matter of money. Before leaving the topic of sacred law in early Greece, we must consider a different kind of relationship between law and religion

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which has also been termed ‘sacred law’. This is the matter of ‘religious forms of legal action’, which is the subject of a very influential book entitled Sacred Law (Heiliges Recht = Latte (1920)).20 Latte’s study concentrates on legal procedure rather than the substantive laws (statutes) we examined above, and it focuses on two aspects of this procedure: the use of religious methods of proof–– primarily oaths but also ordeals––in determining issues of fact, and the use of religious procedures to enforce judgements. In the first area, Latte argues that methods of proof in early Greek law were automatic or ‘irrational’––that is, verdicts were not reached by a rational process of decision-making but by an automatic process that put the decision in the hands of the gods. Thus, someone accused of a crime could be required to swear a solemn oath of innocence (or the accuser could be required to swear an oath that the accused was guilty), or could be subjected to, say, the river ordeal where one would be thrown into a river and would either sink (and therefore be judged guilty) or by swimming be saved (and therefore be judged innocent). Such methods can be found in many different legal systems, but those who, like Latte, developed this view of Greek law looked primarily to medieval Germanic law, where such methods were common, for a parallel. The Greek picture, however, is more complex than medieval procedures.21 We have no good evidence for ordeals in Greek law, but ‘action-deciding’ oaths22 were certainly used, though it does not appear that they ever played nearly so large a role in Greece as in medieval legal procedure. Our best evidence is from Gortyn (in Crete), where, for example, a woman involved in a divorce who is accused of making away with things that do not belong to her must swear an oath in the temple of Artemis that the items did belong to her, and then she could keep them (Inscriptiones Creticae IV. 72. 3. 5–12). It is interesting here that the law earlier leaves it up to the judge to decide on his own if the husband claims he is not to blame for the divorce (2. 54–3. 1); it seems that at Gortyn the oath is used primarily for subordinate issues, not the main issue in the case. It is also important to note that the temple of Artemis referred to in 20 The expression in quotes translates a part of Latte’s subtitle––‘sakrale Rechtsformen’; I take it from Parker (2005), 68–79, who re-examines this whole issue. 21 In the medieval period, these methods may also have been more complex than they first appear; see Brown (1982). 22 The expression is Parker’s (2005), 72.

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the law may have been some 20 kilometres away from Gortyn, so that swearing the oath would have involved a considerable commitment on the part of the woman. Although the Greeks sometimes claimed that people feared the gods too much to swear a false oath, they were realistic enough not to entrust important matters to the swearing of an oath. It appears, then, that even in early Greece, the use of decisive oaths was a relatively minor method of deciding cases, and that it never became the dominant, let alone the universal method.23 This example of oath-swearing at Gortyn leads us, however, to a more general use of oaths and other ‘religious’ methods in Greek legal procedure, namely to strengthen the authority of law in early societies, which otherwise was fairly weak.24 Judges at Gortyn, for example, are explicitly required to swear an oath before deciding a case on their own, which can be understood as a way to increase the perhaps doubtful authority of judges at the time. Similarly, oaths were a common feature of treaties, both parties swearing to abide by provisions of the treaty and perhaps to support other safeguards, for example by punishing violators. And curses, which were another means of invoking a superhuman power, were one means of punishing violators of certain laws, especially (but not only) in early Greece. A famous fifth-century inscription from Teos begins, ‘whoever employs drugs against the Tean community or against any individual in it, may he and his family be destroyed’.25 This curse, like all other curses, appeals to the gods to punish offenders and is directed against an offence that threatens the welfare of the community. In many cases (though not here) the curse is combined with a secular punishment such as exile, its purpose being to increase the severity of the punishment and to ensure that anyone who escapes punishment by human means will nonetheless pay for his crime. The use of curses, then, like the use of other religious elements in Greek legal procedure, could either reinforce or replace secular procedures when these were weak or lacking. When we turn to Athenian law in the classical period (c.500–323 bce), the period of which we are best informed, we continue to find sacred laws in the substantive sense (see next paragraph), but few 23 The main proponent of the view that decisive oaths were the sole Method of deciding cases in Homer and early Greek law generally is Thür (see especially (1996)); contra see Gagarin (1997), (2005). 24 This point is emphasized by Parker (2005). 25 Meiggs and Lewis (1969), no. 30, side A, lines 1–5.

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traces remain of sacred procedural laws. Curses were certainly employed during the litigation process, but mostly unofficially by private individuals, who might seek, for example, to ‘bind the tongue’ of an opponent so that he would be unable to give an effective speech in court.26 Oaths are also not uncommon in Athenian law: for example, litigants in homicide cases had to swear particularly strong oaths (calling down destruction on themselves and their families if they swore falsely), jurors took an oath when they were enrolled for the year (swearing to judge according to the laws, etc.), and witnesses who did not want to testify could swear an oath of exemption. We have no evidence, however, that the Athenians ever made use of decisive oaths of the sort found at Gortyn and elsewhere, or that the decisions of juries were in any way restricted or determined by religious procedures. As for substantive laws, in addition to the sacred calendar discussed above, two main religious offences are known: hierosylia (theft of sacred property) and asebeia (impiety).27 The charge of hierosylia raises relatively few questions. It appears to have been broadly used for any sort of misappropriation of sacred money, which in general was considered a more serious crime than ordinary theft or even theft of non-sacred public funds. Greeks commonly kept public funds in a temple, presumably because they felt that thieves would be less likely to risk offending the god by stealing money from there. Besides theft from a temple, hierosylia could refer to theft of other religious items or to what we would call embezzlement of sacred moneys by officials put in charge of their safekeeping. By contrast, the charge of asebeia raises endless questions, in part because of the attention it receives from being used in the trial of Socrates (to be discussed).28 The translation ‘impiety’ is misleading, since this term tends to evoke the issue of belief in a particular god. Religion in Athens was a more complex matter; it included belief in the traditional gods of the city (Athena, Zeus, Apollo, etc.) but also 26

See Faraone (1999). I leave out of consideration here the possible offence of hiero¯n chre¯mato¯n ([theft of] sacred money), because this charge is only mentioned once in our sources (Antiphon 2. 1. 6) and it is not clear whether it was a separate charge or just a special type of hierosylia. For a thorough discussion, see Cohen (1983), 93–111. 28 For two brief, but quite different, accounts of asebeia in Athenian law, see Cohen (1988) and Todd (1993), 307–15. 27

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participation in the civic honouring of these gods with sacrifices, festivals, and other ritual observances. Religion also included, as noted above, fulfilling one’s obligations to the dead, not just by giving them a proper funeral but by ritual observances honouring them long afterwards. When pressed by Socrates, Plato’s character Euthyphro defines asebeia as ‘that which is not pleasing to (prosphiles) the gods’. Thus, asebeia could be applied to a much wider range of behaviour than the English word ‘impiety’. It may imply not believing in the gods, but primarily in the sense of not showing that one accepted the customs and traditions about the gods rather than in refusing to declare a specific faith or belief. But the offence was not clearly defined and could include much else too. This was particularly true in law, because Athenian laws did not normally define offences, or give specific components of an offence, beyond the term itself. And since Athens had no legal specialists with the power to issue authoritative interpretations of laws, the determination of precisely what a term such as asebeia meant and what actions qualified as asebeia for legal purposes was left to the litigants themselves and the jury, who were primarily guided by ordinary language usage. And given the broad and rather vague meaning of asebeia in ordinary speech, this opened up the legal charge of asebeia to a very broad range of actions. In the law-court speeches and other literature of this period, some of the actions that are said to be examples of asebeia are violation of oaths, parricide, destroying sacred olive trees, convicting an innocent man of homicide, and revealing the sacred mysteries. It is also quite likely that one could, if one wished, use the general rubric of asebeia to prosecute cases of hierosylia; certainly most people would have considered plundering a temple to be impious as well. A further aspect of the law on asebeia is that at least some trials for impiety were almost certainly motivated in part by political considerations. Aside from the trial of Socrates, which I will discuss in a moment, the most famous examples of asebeia in Athenian history were two related scandals in 415 bce: the profanation of sacred mysteries and the destruction of the herms (pillars set up around Athens with a bust of the god Hermes and an erect phallus, probably for good luck). Both incidents took place just before a large but controversial Athenian naval expedition was about to leave for Sicily, the destruction of which two years later would prove to be the beginning of the end for Athens in the Peloponnesian War (see

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Thucydides 6. 8–32). Details of the two incidents are sketchy, but it seems clear that both religious and political considerations played a role in the widespread panic that ensued and the prosecutions that followed. Other examples are less clear, and some cases of asebeia probably had no political dimensions, but a connection between religion and politics in some cases of asebeia seems undeniable.29 This is certainly true for the trial of Socrates. Few scholars accept the view that politics was the dominant factor in his case, but equally few would deny that political considerations were among the motives for the trial.30 It was well known that Socrates’ pupils, or close associates, included two young men who were among the most notorious leaders of the anti-democratic forces in the city, Alcibiades and Critias. Critias, in particular, was one of the leaders of the group of Thirty (now usually called the Thirty Tyrants), who were installed in a coup by Sparta after it had defeated Athens in 404. In 403 the actions of the Thirty became especially brutal, and they were soon overthrown by democratic forces who had left the city, formed an army, and then defeated the Thirty in battle. Socrates was no supporter of the Thirty, but he did not leave the city with the democratic forces and in the minds of many his association with Critias would have tied him closely to the brutality of their reign. Thus his prosecution in 399 by a trio of accusers, at least one of whom was a leading democratic politician, must have been influenced to some extent by this factor. Some fifty years later Aeschines, speaking to the jurors in court, reminded them (1. 173), ‘you [i.e. you Athenians] put Socrates the sophist to death, because it was found that he had taught Critias, one of the Thirty who overthrew the democracy’. If the motive for prosecuting Socrates was political, why was he charged with asebeia rather than, say, attempting to overthrow the democracy, for which the special procedure, eisangelia (impeachment), existed in Athens? The simple reason is that after the overthrow of the Thirty, the two sides had agreed on an amnesty, under which no one except members of the Thirty could be prosecuted for crimes during their rule. In addition, this procedure was normally 29 See Todd (1993: 307–15), who focuses on the interplay of religion and politics in asebeia cases. 30 The most thorough study of the trial and of Socrates’ defence in the Apology is Brickhouse and Smith (1989); see also Parker (1996), esp. 199–207 for a good brief treatment of Socrates’ case. The strongest proponent of a political understanding of the trial is Stone (1988).

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used against public officials or important public figures, and Socrates had long avoided direct involvement in public affairs. But his primary activity, conversing with young men, both Athenians and non-Athenians, made his whole life suspect; if the prosecution wanted to target his entire life, then, they needed a broad charge that covered Socrates’ teachings, beliefs, and other practices. For this the general charge of asebeia, which could cover a broad range of offences, was well suited. Now, to say that Socrates was tried for asebeia is true, but also misleading. More accurately, the graphe¯ asebeias (indictment for impiety) was the broad procedural category within which the case was brought, but it was not part of the specific accusation against Socrates, as it was written down in the indictment that was filed with the court when the case was officially brought, was posted on a notice-board outside the court, and was then read out to the jury at the beginning of the trial. Athenian public suits were brought under the general rubric of an established procedure, but when a person filed the suit, he had to write down the specific accusation, and when it came to the trial, this specific accusation written in the indictment was the official statement of the issue or issues to be decided. In their pleadings, moreover, both litigants focused their arguments on these specific charges as stated in the indictment, often quoting or referring directly to parts of the indictment in connection with specific points they are making. In Socrates’ case we happen to have the precise wording of the indictment, preserved by the third-century ce scholar, Diogenes Laertius (2. 40). It reads thus: Meletus son of Meletus of Pitthos indicted and swore an oath against Socrates son of Sophroniscus of Alopece. Socrates does wrong (adikei) by not recognizing (nomizo¯n) the gods the city recognizes but introducing other new divinities (daimonia), and also by corrupting the youth. The proposed penalty is death.

This is a common format for indictments.31 Note that the word asebeia does not appear among the charges. The general charge with

31 In fact, it closely resembles the indictment from Aristophanes’ parody of a trial in The Wasps (lines 894–7): ‘Cyon [“Dog”] from Cydathenaeum indicts Labes [another dog] from Aexone for wrongdoing (adikein), in that by himself he ate up the Sicilian cheese. The proposed penalty is a fig-wood collar.’

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which the indictment begins is simply ‘Socrates does wrong’; then follow the specifics of the charge. The specific indictment against Socrates has two parts, not recognizing gods and corrupting the youth; the first of these also has two parts, not recognizing the traditional gods of the city and introducing new ones. Certainly the wrong alleged in the first part of the first charge––not recognizing the gods the city recognizes–– would fall into the category of asebeia, whatever the precise meaning of the verb nomizo, which I have translated ‘recognize’. The verb encompasses the meanings ‘believe’ and ‘cultivate’ and although some scholars have wanted to restrict the meaning to only one of these senses, both are probably present in this case.32 The first part of the charge, then, accused Socrates of having unorthodox views of the gods, in that he rejected some of the traditional gods. This is not the place to examine the validity of these charges, which is debated, but we can note briefly that Socrates was known for, among other things, his association with many of the new thinkers of the late fifth century. In fact, he was portrayed in Aristophanes’ The Clouds as a typical Sophist, who rejected traditional thinking on all subjects, including the gods, and taught that there are new gods now, including the Clouds who give the play its name. We need not accept this picture as completely true, but it must have had elements of truth in it or the parody would not work. We also have other evidence that Socrates rejected some of the traditional stories about the gods, and in the Apology, Plato’s recreation of the defence Socrates gave at his trial, Socrates expresses an agnostic view of the traditional portrayal of the afterlife (Apology 40c–41c). The second part of the first charge is that Socrates introduced new divinities (daimonia). Use of the term daimonion, which refers to a divine force or spirit rather than a full-fledged god, was intentional and clearly targeted Socrates’ frequent references to his own personal ‘spirit’ or ‘voice’ (daimonion), which he explains and defends to the jury in Apology 31c–d. Socrates, then, in essence admits the validity of this part of the charge, which would also quite legitimately have been considered an instance of asebeia. The second charge, corrupting the youth, is more problematic, though it may have carried the most weight with the jurors, since it would have reminded them of the political context of the case. At 32

See Brickhouse and Smith (1989), 30–4.

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first glance, the offence has nothing to do with religion and in fact should be a private matter between the offender and an individual youth’s family. It is unlikely, in fact, that corrupting the youth was specifically prohibited by law in Athens. However, Athens did have quite a few laws regulating conduct with respect to children or young men, mainly in schools or other places, such as gymnasia, where they might be harmed by adults,33 and it would probably not have occurred to any juror that corrupting the youth was not a serious offence deserving punishment. Thus, most Athenians probably accepted the view that corrupting the youth qualified as asebeia, and this view appears to have been accepted by all involved in the case, including, it must be noted, by Socrates, who defends himself against the charge but never suggests that corrupting the youth is not a legitimate offence. Thus, the entire prosecution and trial of Socrates is not directly about asebeia but about the specific charges in the case. And, as many scholars have noted, Socrates never challenges the legitimacy of these charges. In fact, he does not mention asebeia in his defence speech, except in a humorous aside in Apology 35d. Athenian religion, then, involved a complex and wide-ranging set of beliefs and traditions. Significant deviations from these beliefs or violations of these traditions could be prosecuted, though such prosecutions were rare unless factors besides religion were also involved, as in the case of Socrates. Only two procedures for such prosecutions are well attested in Athens, against hierosylia (theft of sacred property) and against asebeia (impiety); and in the case of both we must note, as we did regarding the ‘sacred laws’ we examined in early Greece, that the offence was usually a matter of public concern, because either public funds or public welfare were involved. In Athenian law, as in Greek law generally, religion has a place but as part of law, not vice versa, and a fairly small part at that.

REFERENCES Brickhouse, T. and Smith, N. (1989), Socrates on Trial (Oxford: Oxford University Press). 33

See Aeschines 1. 8–25.

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Brown, P. (1982), ‘Society and the Supernatural: A Medieval Change’, in id., Society and the Holy in Late Antiquity (Berkeley, Calif.: University of California Press), 302–32. Calhoun, G. (1962), ‘Polity and Society: The Homeric Picture’, in Alan J. B. Wace and Frank H. Stubbings (eds.), A Companion to Homer (London: Macmillan), 431–62. Cohen, D. (1983), Theft in Athenian Law, (MBPF 74; Munich: Beck). —— (1988), ‘The Prosecution of Impiety in Athenian Law’, ZSRG 105: 695–701. Faraone, C. (1999), ‘Curses and Social Control in the Law Courts of Classical Athens’, Dike 2: 99–121. Gagarin, M. (1986), Early Greek Law (Berkeley, Calif.: University of California Press). —— (1997), ‘Oaths and Oath-Challenges in Greek Law’, in Gerhard Thür and Julie Vélissaropoulos-Karakostas (eds.), Symposion 1995 (Akten der Gesellschaft für griechische und hellenistische Rechtsgeschichte 11), 125–34. —— (2005), ‘Early Greek Law’, in Michael Gagarin and David Cohen (eds.), The Cambridge Companion to Ancient Greek Law (Cambridge: Cambridge University Press), 82–94. —— (2008), Writing Greek Law (Cambridge: Cambridge University Press). Jeffery, L. and Morpurgo-Davies, A. (1970), ‘Poinikastas and poinikazein: BM 1969. 4–2.1, A New Archaic Inscription from Crete’, Kadmos 9: 118–54. Latte, K. (1920), Heiliges Recht: Untersuchungen zur Geschichte der sakralen Rechtsformen in Griechenland (Tübingen: Mohr). Lupu, E. (2005), Greek Sacred Law: A Collection of New Documents (Leiden: Brill). Maine, Sir Henry (1861), Ancient Law (Everyman’s Library Edition; London 1917). Meiggs, R. and Lewis, D. (1969), A Selection of Greek Historical Inscriptions (Oxford: Oxford University Press). Parker, R. (1996), Athenian Religion: A History (Oxford: Oxford University Press). —— (2004), ‘What Are Sacred Laws?’, in Edward M. Harris and Lene Rubinstein (eds.), The Law and the Courts in Ancient Greece (London: Duckworth), 57–70. —— (2005), ‘Law and Religion’, in Michael Gagarin and David Cohen (eds.), The Cambridge Companion to Ancient Greek Law (Cambridge: Cambridge University Press), 61–81. de Polignac, F. (1995), Cults, Territory, and the Origins of the Greek City-State (Chicago: University of Chicago Press). (Original French edition, Paris 1984).

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Raaflaub, K. (1997), ‘Homeric Society’, in Ian Morris and Barry Powell (eds.), A New Companion to Homer (Leiden: Brill), 624–48. Ruschenbusch, E. (1966), Solo¯nos nomoi: die Fragmente des solonischen Gesetzeswerkes mit einer Text- und Überlieferungsgeschichte (Wiesbaden: Steiner). Stone, I. (1988), The Trial of Socrates (New York: Anchor Books). Tandy, D. and Neale, W. C. (1996), Hesiod’s Works and Days: A Translation and Commentary for the Social Sciences (Berkeley, Calif.: University of California Press). Thür, G. (1996), ‘Oaths and Dispute Settlement in Ancient Greek Law’, in Lin Foxhall and Andrew Lewis (eds.), Greek Law in its Political Setting: Justifications Not Justice (Oxford: Oxford University Press), 57–72. Todd, S. (1993), The Shape of Athenian Law (Oxford: Clarendon). Willetts, R. (1967), The Law Code of Gortyn (Kadmos Supplement 1; Berlin: Walter de Gruyter).

4 Gods, Kings, and Lawgivers F. S. Naiden

Only about a dozen Near Eastern and Greek law codes––or, speaking cautiously, law collections––have survived. Babylonia and Sumeria contribute the collections of Hammurabi and Lipit-Ishtar and the less extensive remains of Ur-Namma and Eshunna. The Old Testament contributes the Deuteronomic, priestly, and Covenant Code, and the Hittite and Assyrian empires contribute one more apiece. Greece contributes the last, from Gortyn in Crete. Of these, only three from Babylonia and Sumeria contain prologues about the relation between the gods and any lawgiver. Only three more, from the Pentateuch, appear in a narrative that treats the subject of gods and lawgivers. Greece offers only Homer’s and Hesiod’s remarks about divine laws and kings, a few sources about lawgivers’ relations to the gods, and the poetry of Solon. Yet this scanty material rebuts the common assumption that Near Eastern lawgivers relied upon despotic and divine power whereas Greek lawgivers relied upon popular consent.1 Since the Near Eastern material includes Moses, it is not monolithic. The Greek material is not monolithic, either. The situation in Homer and Hesiod differs from the one that appears in the late Archaic and Classical periods, no surprise, but in 1 For Near Eastern despotism, see Finley (1959), 164 = Finley (1960), 72, saying that the Near East was ‘without free men’, and thus was despotic. For Greek popular consent, see Ostwald (1969), 40, saying that Greek law of the Classical Period was no longer divinely ordained, whereas earlier Greek law was, and tacitly assuming that Near Eastern law was also. See also Raaflaub, (2004), 49 and 254 on the distinctively Greek social background for popular consent. A different view: Assmann (2008), 142–4, seeing all early Mediterranean pagan societies as subject to omnipotent legal authorities, and thus seeing Greece and Mesopotamia as similar, and unsurprisingly seeing Israel as different from either.

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each of these two situations there are unnoticed similarities with Mesopotamia and Israel. German comparatists of the early twentieth century did not fail to notice the role played by the gods in both Greek and the Near Eastern lawgiving.2 Max Mühl’s 1933 monograph on Greek and Near Eastern lawgiving dwelt on this point, and it left a trail of references in later works.3 Yet these scholars did not see the role of the gods as an invitation to further comparisons. Some scholars, especially legal historians, said there was little to compare. Greek and Near Eastern law developed separately, and so comparison among the lawgivers would be misleading.4 The consequence of this view was that the long-standing impression––originating with Herodotus––that the East was despotic, whereas the West was civic or republican, if not democratic, met with no challenge founded on evidence from ancient law collections. Instead claims of similarity between East and West rested on literary evidence, or on archaeological evidence of the diffusion of goods, technology, and artistic technique.5 Where law collections were concerned, and especially prologues to collections and other, related statements, several generalities were thought to suffice. One generality was that all ancient lawgivers, or at least all early ones, claimed divine authorship of the laws. This view is the subject of the first section of this chapter, which will seek to show that the lawgivers wished to obtain divine approval for their laws, but did not usually claim divine authorship. In regard to this issue, Israel stands apart from other societies. A second generality was negative: claims of divine authorship aside, Eastern and Western lawgiving differed from one another. This view is the subject of the second section 2 Although their interest centred on texts related to westward-moving cults without a legal aspect, such as Mithraism––e.g. Dieterich (1903) and on literary parallels––e.g. Ungnad (1923). 3 Mühl (1933). Apparently, only one recent Hellenist has cited this monograph: Morris (1992), 165, and here the issue of authority is overlooked. Incidental comparisons: Camassa (1988), 130–55; Zaccagini (1994), 268. An extended comparison of Solon and Mesopotamian lawgivers: Harris (2006a), 293–301 = Harris (2006b), 6–14, from which comes the contrast, which we shall address, between ancient law-making and ancient administration of laws. 4 Gagarin (1986), 126–35 and similarly in Gagarin (2008), 146–51; with respect to prologues and epilogues of law codes, Ries (1983), ch. 1. Interplay proposed by Mühl (1933), 94, but only for the lawgiver’s cursing those who would alter his laws. 5 e.g. West (1997) and Burkert (1992); for criticism of Burkert, see Moyer (2006), 228–35.

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of this chapter, which will seek to show that the Babylonian and Sumerian kings and the kings of Homer and Hesiod resemble one another in regard to one aspect of law-giving and also to legal administration, that is, the king’s claim to act as a shepherd to his people. Yet another generality was that popular consent to laws is a Western, not Eastern, ideal. This view is the subject of the third section of this chapter, which seeks to show that consent appears in both Israel and Greece, although not in Babylonia and Sumer (or, in a word, Mesopotamia). Consent happens to be incompatible with any use of the image of the shepherd of the people, who does not appear in connection with lawgiving in the Old Testament and who also do not appear in the poetry of Solon. This issue of relations between gods and mortal lawgiving or administration stands apart from any issue involving particular laws, even the few laws which have cross-cultural counterparts, such as those about debt bondage.6 It also stands apart from the issue of whether the laws in Mesopotamian collections were enforced.7 Enforced or no, these laws needed to rest on some authority, the same as the laws of Solon or any other lawgiver. What (and who) was this authority? This is a question of legal ideology––of a peculiar kind of legal fiction. The fourth and last section of this chapter offers one reason for the existence of such fictions.

I The communis opinio is that the laws of Hammurabi and the other lawgivers were purportedly of divine origin.8 Yet the Mesopotamian lawgivers do not make this claim. Neither does Solon, and neither do most traditions about Lycurgus and others. Only Exodus and 6 Near Eastern debt bondage: Westbrook (1995), 1631–76. Greek: Harris, (2002), 415–30 = Harris (2006b), 249–71. 7 The latest major publication in this debate: Lévy (2000). 8 Divine origin among the Greeks: Smith (1922), 191–2; Willetts (2006), 236; Szegedy-Maszak (1978), 204–5; Gehrke (2000), 145–6. Among the Greeks and in the Near East: Mühl (1933), 85. Divine origin among early lawgivers generally: de Coulanges (1864), 147; Pringsheim (1957), 301–2. Divine ‘associations’ among the Greeks: Hölkeskamp (1999), 47–8. At Beloch (1912), 1. 1. 350, 1. 2. 257, the view that that the Greek lawgivers were mostly regarded as gods has this to recommend it: it does not overlook the difficulties that the divinization of lawgivers would resolve.

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Deuteronomy make it. The Mesopotamians and Greeks made other claims: the Mesopotamians, that the gods give the lawgiver a commission, and let the lawgiver write the laws, and the Greeks, that the lawgiver writes the laws and obtains divine approval.9 Exodus is the fuller of the two Hebrew accounts. It reports three occasions on which Yahweh hands down laws. Each time, he speaks to a chosen intermediary, announcing some laws and transmitting others in writing. Whether oral or written, his laws illustrate his justice or virtual kingship over the people. On the first of the three occasions, in chapters 19 and 20, Yahweh begins by summoning Moses. During their interview, the god explains his authority over the Israelites. Yahweh then announces laws consisting mostly of ethical commands––the familiar Decalogue.10 The second time, in chapters 20 to 23, Yahweh holds another interview with Moses. He announces more laws, many comparable with laws of Hammurabi. This time, Moses reduces the laws to writing.11 The third time, in chapters 24 to 31, Yahweh summons Moses and at the following interview transmits laws mostly on ceremonial matters. Yahweh has written these laws on two stone tablets.12 All these laws are Yahweh’s ipsissima verba. Deuteronomy compresses this account but does not alter its features.13 In contrast, no god hands down laws to Hammurabi and other Mesopotamian kings. Instead the king hands down the laws after receiving a divine commission to do justice. There is no distinction between ethical commandments and other laws, including ceremonial laws, and no oral as opposed to written transmission. The gods still communicate with the lawgiver, but under other circumstances than in Israel. The lawgiver is not an intermediary. 9 A similar view of Babylonian and Sumerian rulers, and the same view of Moses: Levinson (2008), 26–7. 10 First steps: Exod. 19: 3 (summons), 4–6 (powers founded on the proposed covenant), 20 (second summons). Announcement of laws: Exod. 20: 1–17. The engraved commands or OYQXH of Exod. 18: 20 are admittedly discounted. 11 Moses’ approach without a summons: Exod. 20: 21. Laws: 20: 22–4: 1. Writing: 24: 4. 12 Exod. 24: 16; chs. 25–31. Writing: 31: 18. 13 Deut. 5: 2–5, with implied summons to Moses, who acts as intermediary; 6–21 (mostly ethical commandments, transmitted orally); 27 (consent to additional laws); ch. 6 (additional laws). Since this summary of Exod. 19–24 and Deut. 5–6 deals only with the texts as we have them, and not with any earlier stage in their history, redactional issues have been ignored. See Propp (2006) ad Exod. 19: 1–24: 18, especially on one effect of the process of redaction–Moses’ many trips up and down Sinai. These trips reinforce his role as an intermediary.

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These conclusions emerge from Hammurabi’s prologue. Unlike the narrative of Exodus, this prologue is an elaborate statement that is convenient to abridge. Once royal epithets and titles are omitted, along with some particulars about the god Marduk, the first sentence of the prologue begins thus: ‘When the gods Anu and Enlil gave lordship over mankind to Marduk, they designated Hammurabi, a revered, pious leader, to make justice prevail in the land (of his kingdom).’ The rest of this sentence expatiates on Hammurabi’s task: to destroy evil, to protect the weak from the strong, and to resemble Shamash, the sun god and god of justice. The reader has now come to line 49 of the first column. At this point, the prologue turns away from the subject of Anu and Enlil summoning Hammurabi. The next sentence may be summarized, ‘I am Hammurabi, the ruler summoned by Enlil . . .’ Now come numerous royal epithets and titles continuing all the way to column 5a, line 13. The third and last sentence of the prologue now begins, ‘When Marduk sent me to set the people right and to teach them good customs, I established truth and justice, and gave satisfaction to the people.’ The prologue now ends, and the body of the collection commences. Anu and Enlil have imparted a task to Hammurabi, and he acknowledges it, and Marduk has commissioned the king to make laws. Several purposes are stated, but the king says nothing further about the encounter, or about any instructions concerning the laws. The divine support given to his laws has been vouchsafed, but divine authorship has not. To conclude that Marduk dictated the laws to Hammurabi, or even inspired them, goes much further than the king himself is willing to. Marduk is not Yahweh, nor is Hammurabi Moses. Hammurabi receives less support from Marduk than Moses does from the god of Exodus. Marduk proffers no ipsissima verba.14 As for Lipit-Ishtar, his fragmentary prologue resembles that of Hammurabi. He, too, received no ipsissima verba.15 The same is true of the one other extensive prologue that has survived, that for the laws of Ur-Namma. This prologue refers to Anu and Enlil and to a third god, Nanna, comparable to Marduk. It implies that Nanna gave the king, Ur-Namma, the task of doing justice. Yet it contains 14

Similar view, but without analysis of the prologue: Zaccagnini (1994), 269–71. CL-I i. 1–5: Anu and Enlil deal with Ninisinna, just as they do with Marduk in LH i. 20–6: Anu and Enlil summon the shepherd Lipit-Ishtar, just as Marduk does in LH. Shepherd: i. 22, 40. Summoning: i. 37. Text as at Steele (1948), who notes the similar structure at 446. 15

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nothing to suggest that the king received ipsissima verba.16 The prologue to the laws of Eshunna is too short to be described in this regard, but it, like the others, is an instance of a literary genre, or sub-genre, of royal legislative prologues in which fundamentals such as a commission for law-making are indubitable.17 Like the Mesopotamian lawgiver, the Greek one usually does not receive ipsissima verba. Unlike the Mesopotamian lawgiver, he usually does not receive a commission at an interview. Instead he holds a position that allows him to propose and write laws, strengthens this position by receiving a divine endorsement, and obtains the gods’ approval for his laws after he has written them. This is not to say that the gods have no business with any laws save for approving the work of lawgivers. The Greeks believed that the gods had established important unwritten laws. Some such laws took the form of customs the violation of which would prompt divine punishment, and other such laws took the form of ethical precepts. (The unwritten laws about the practice of supplication offer an example about which I wrote a monograph that might easily have been several volumes instead of one.18) These sundry unwritten laws are a staple of Greek thought from Homer through Plato. As regards lawgiving, the importance of unwritten, divine laws is this: human, written laws conformed to these laws. To make sure that they did, the lawgiver would take the two steps just mentioned: first, receive a divine endorsement when setting about his work, and second, receive divine approval for the results. Both endorsement and approval often came in the form of an oracle, a Greek substitute for an interview with a god. Of the two leading lawgivers, Lycurgus received an oracle both by way of endorsement and by way of approval. His Athenian counterpart, Solon, received an oracle only by way of endorsement. According to Herodotus, the oldest and best source for Lycurgus, the Spartan lawgiver served as regent for King Leobotes, a minor who was his nephew. Lycurgus went to or learned about Crete and brought laws from there to Sparta.19 This information, however, does 16

17 A i 3 (Roth) 15. Roth (1995), 57. Naiden (2006a). See also the general discussion in Harris (2004), 28–32 = Harris (2006b), 51–5. 19 Hdt. 1. 65 with Isoc. 12. 152–3; Arist. Pol. 1271b changes two particulars, making Lycurgus regent for Charilaus and having him resign his post as regent before going to Crete. On this view, his authority would be a weaker, a change compatible with Aristotle’s notion of him as a mesos polite¯s. 18

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not explain the authority on which he acted, except in so far as he was regent, and so Herodotus adds that he went to Delphi, where Apollo’s priestess hailed him as ‘dear to Zeus’ and ‘more divine than human’. This acclaim would give him a niche: if not a king summoned by Zeus to an interview, Lycurgus was at least a member of the royal family endorsed by Apollo. On this authority, he might write his own laws, or revise Cretan laws. Herodotus evidently accepts this story, part of which he attributes explicitly to the Spartans and part implicitly to Delphi. In case his readers may want to know more, he adds, ‘The Pythia gave an oracle to him about the present social system of the Spartans.’20 This report does not say what the oracle was, but the only other early source for this encounter between Lycurgus and Delphi, Xenophon, includes not only the oracle but also the question that Lycurgus asked: ‘Is it better and more profitable for the Spartans to obey the laws that I myself have established for them?’, to which the oracle answered, ‘It is better in every way.’ As Fontenrose observed, this question and response appear authentic.21 Xenophon says that several prominent Spartans accompanied Lycurgus, a credible detail. Here, too, Lycurgus writes his laws and obtains divine approval for his work. Whereas Lycurgus was reportedly regent, Solon was an exmagistrate who received a commission from the Athenians to write laws.22 Like Lycurgus, he received no laws from any god. He did not even receive any such endorsement as Delphi gave to the ‘god-like’ Lycurgus. Instead he received an oracle that said he should ‘Sit amidships and make straight the work of the helmsman. Many Athenians will aid you.’ The wording of this oracle reveals that this endorsement came after he had received his commission. Solon proceeded to write laws to which he refers in his poetry. Nothing in the poetry hints at divine dictation or even inspiration for the laws. Nor does anything hint at Solon’s borrowing laws from elsewhere, as in Lycurgus’ case. The status of Lycurgus and Solon as the two chief Greek lawgivers goes back to Aristotle. If we agree with Aristotle about these two, we can summarize the leading lawgivers’ situation by saying that they, unlike Moses, did not receive divine laws and that they, unlike 20 ‘Gave an oracle’: φρα´αι as in LSJ s.v. φρα´ζω, with exx., a sense to be distinguished from ‘tell’. 21 X. Lac. 9. 5; Fontenrose (1978), 271–2. 22 i.e., his being named diallakte¯s (Plut. Sol. 14. 3).

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Hammurabi, did not obtain a divine interview, only divine endorsement or approval. Aristotle and Herodotus also mention two lesser lawgivers. Demonax received a commission from Delphi, but only after the community for which he made laws, Cyrene, asked Delphi for constitutional advice. Rather than give laws to Cyrene, Delphi sent Demonax to make laws of his own devising. Delphi merely endorsed him, as it had Lycurgus.23 The later Athenian lawgiver Clisthenes resembled Solon in that he received a commission from the community and wrote laws. He resembled Lycurgus in obtaining Delphi’s approval afterwards.24 So much for the earlier, better sources for Greek lawgivers.25 Among the later sources, Plutarch says that Lycurgus received one law, the Great Rhetra, from Delphi. This law would seem to take the form of an oracle––in other words, a law given by Apollo, not by the lawgiver. Yet Plutarch adds that this event was ‘the natural result of Lycurgus’ own zealousness’, words implying that Lycurgus exaggerated Apollo’s role.26 Plutarch says much the same about another Spartan law and Apollo. Writing of an amendment to the Rhetra, Plutarch says that the kings of Sparta had persuaded the city to accept the amendment by ‘alleging that the god had given commands to that effect’.27 Another, less detailed but earlier source, Ephorus, also says much the same: Lycurgus went to Crete and obtained laws ‘allegedly coming from Zeus’. Similarly, Diodorus says that Delphi gave Lycurgus no advice about legal particulars as opposed to ethical aims.28 For Lycurgus, then, a late or mostly late tradition that he received ipsissima verba meets with reservations in Plutarch and other writers. There remains one lawgiver to consider, the aberrant Zaleucus. The fragment that is the main source for Zaleucus says that this 23

Hdt. 4. 161. Arist. Ath. 21. 6, Paus. 10. 10. 1. 25 Unreliable late sources: Adcock (1927). The longest passages to be dismissed on this ground: the proemia to the laws of Zaleucus (Stob. 4. 2. 19) and Charondas (Stob 4. 2. 24). Supporting Adcock: Plato’s complaint that Greek lawgivers did not write proemia (Lg. 4. 722e). 26 ποδαζε τε: Plut. Lyc. 6. 1. 27 τε το θεο τατα ποστα´οντο: 6. 9. Similar reservations: 5. 4, where the oracle (not Plutarch) says that Apollo would ‘give’ him a constitution, as opposed to 7. 1, where Lycurgus ‘mixes’ the constitution himself. Similar also is Poseidonios FGrH 87 F70, where Lycurgus and Delphi co-operate. 28 Ephoros FGrH 70 F 149, where again the crucial word is ; D.S. 7. 12. 24

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lawgiver received laws from Athena in a dream.29 An antecedent appears in a tradition about Lycurgus and Crete. When the Spartan lawgiver investigated the laws there, he paid most attention to laws attributed to Minos, a Cretan ruler who received laws while in the company of Zeus.30 This tradition harks back to the Mesopotamian notion of a royal interview with the gods. Strong on Crete, such a tradition seems to have survived in just one place on the mainland, Zaleucus’ home of Locri, where it affected claims made by or for Zaleucus.31 For Greece, such a tradition is anomalous, as suggested by the attitude of Plutarch, who says that Athena commanded Zaleucus to include no thought or proposal that was his and not hers.32 Plutarch is less sceptical here than before, but he does not discourage us from asking whether Zaleucus concocted this story, which is a lawgiver’s counterpart to the escort that Athena gave to Pisistratus when he returned from exile and resumed his tyranny over Athens.33 The three relations between god and lawgiver––divine dictation, divine commission, and divine endorsement or approval––correspond to three attitudes towards kingship. In the first case, the god himself is the king. The laws are his because royal power is his. This is the Israelite situation presented in Exodus and Deuteronomy.34 In the second case, the god differs from the king, and rises superior to him. The laws are again the king’s, but the king is no longer divine. This is the situation in Mesopotamia. In the third case, there is often no king, or, if there is, as in Sparta, the king is not a lawgiver. This time, the laws are not the king’s. This, of course, is the situation in Greece in the late Archaic and Classical Period. In every situation, the king’s role is salient. In Mesopotamia, he gave laws and also

29 Arist. fr. 548 ed. Rose, an un-Aristotelian remark attributed to Aristotle in a scholion to Pindar, and echoed at Suda s.v. Zaleukos. 30 Pl. Minos 321c with Od. 19. 179. 31 Other views of the Locrian setting: Oldfather (1927), 1319, holding that Zaleucus is not an exceptional figure in regard to his links to the gods, and Van Compernolle (1976), 381–7, holding that Zaleucus’ being a slave was a political advantage. Aristotle did not regard Zaleucus as lacking political experience, for he says that the first lawgiver who did lack experience was not Zaleucus, but Hippodamas (Pol. 1267b). 32 Plut. De laude ipsius, 543a. Vaguer: Numa 4. 7, where Zaleucus ‘kept company’, homilein, with the goddess, 33 Hdt. 1. 60. 34 Although this same situation appears in a different light in 2 Kings 21–3, discussed below.

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administered them. In Greece he did not, but in Homer and Hesiod he did administer laws of a different kind, unwritten laws or norms of divine origin. On this score, Mesopotamia and Greece prove to resemble one another. This resemblance is the subject of the next section.

II As M. L. West was perhaps the first to notice, Mesopotamia and early Greece both conceived the king as ‘shepherd of the people’.35 The image is common enough, indeed, to have merited an entry in the Anchor Bible Dictionary (s.v. ‘Shepherd’) and to appear routinely in Homer. West, however, did not deal with how this image affected notions of lawgiving and administration. If the king was a lawgiver, this image tended to justify him. If he administered the law, this image supplied a standard by which to praise or criticize him. So important was this image that societies without kings––Israel sometimes, but later Greece, too––did not ignore it. They reassigned it or eliminated it. To begin with Mesopotamia: as shepherd of the people, the Mesopotamian king is responsible to the gods, for they entrusted the people to him in the way that a master would entrust a flock to a servant. He both makes laws and administers them, tasks in which he does ‘straight justice’. Lawmaking and administration form a whole that the shepherd personifies and that ‘straight justice’ idealizes. We have already noted that Anu and Enlil bade Hammurabi cause justice to prevail. Now we can note that when Hammurabi identifies himself as a ‘ruler’, he used the word for shepherd, reûm. The king exercises pastoral care over his people, protecting the weak from the strong and singling out widows and orphans.36 He sacrifices for the people; among other duties, he allots land and water.37 Rejecting his laws is out of the question, and so is changing his laws and his judgements. Doing either will bring down ample curses upon anyone so presumptuous as to make such an attempt.38 Besides not altering 35 36 37

West (1997), 135. See also Haubold (2000), 15 with refs. LH ia. 37–9, xxivb. 58–62. 38 LH iva. 21–2, iiia. 47. LH xxii. 7–xliv. 92, xx. 90–4.

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the laws, Hammurabi’s subjects ought not alter the judgements made under them. Again the penalty is a curse. Partly for other purposes, but partly to underscore the curse, the king has erected a copy of the laws in the most sacred place, the shrine of Esagila in Babylon.39 As usual, Hammurabi is not original. Lipit-Ishtar pronounces similar curses.40 The cardinal feature of this relation between lawgiver and people is that it is pastoral. He is a human being, a shepherd. They are animals––sheep. This distinction accounts for his powers, his duties, and his emphatic curses. No less emphatic is the ruler’s self-congratulatory rhetoric. As Driver noted, Hammurabi does ‘straight justice’, so much so that the Babylonian word for ‘straightness’ or ‘rightness’ dominates the prologue. A word for ‘justice’ derives from this term, which as a factitive verb is esˇe¯rum. Another dominant word is ‘firmness’ or ‘fastness’, from which the word for ‘truth’ derives. As a verb, this word is kânum.41 This is a retranslation of several parts of the prologue: ‘When Anu and Enlil gave lordship over mankind to Marduk, they summoned Hammurabi in order to make right prevail. I am that shepherd summoned by Enlil. When Marduk sent me to set the people right, I made straight the way of firmness and rightness.’ Besides ‘making straight the way’, the shepherd carries a straight, or just, sceptre.42 Using it, he keeps the sheep on safe ground. Yet he remains a servant of the owner of the flock, as even the law collection says. All five of the provisions referring to shepherds say that a shepherd is liable to the owner of the flock for any kind of misconduct.43 Although two other collections, those of Ur-Namma and Eshunna, say nothing about shepherds, the Lipit-Ishtar collection is again similar to Hammurabi’s. Its shepherd king has no staff, but is ‘attentive’, literally, ‘tools in hand’.44 Little of this beneficence and rhetoric will surprise the reader of Homer and Hesiod, whose rulers are also ‘shepherds of the people’. In the Iliad, Agamemnon is the foremost such shepherd. In the Odyssey, Odysseus is a regrettably absent shepherd.45 These two kings are called shepherds most often, but Nestor is the only king called 39

40 LH xxi. 59–74, xxiv. 87. CL-I xix. 39–xx. 51. Driver and Miles (1955), 1. 37–8. 42 LH iiia. 25, hat.t.iim. Straight: hat.t.asˇu isˇarat, xxivb. 44–5. 43 44 ˘ ˘ i. 25, nig-si-sa; i. 22, si-pad-gisˇ-tuku. LH nos. 263–7. CL-I 45 Agamemnon: Il. 2. 85, 243, 255, 4. 413, 5. 144, 7. 230, 10. 3, 11. 187, 11. 202, 14. 22, 19. 35, 19. 251, 2. 654. Odysseus: Od. 18. 70, 20. 106. 41

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a shepherd in both poems.46 Sometimes the phrase is a filler, but Athena in the guise of Mentor is the last person in Homer to receive the honour, just as the legendary Dryas is the first.47 Hesiod uses it less, but in the same way. His shepherds are Amphitryon, Jason, Alcmaeon, and Antimachus, a mostly prestigious group.48 If the honorific character of the phrase is Mesopotamian, so is Homer’s notion that the shepherd wields a sceptre. Pelops, for example, received such a sceptre from Zeus.49 Other shepherds carry less prepossessing sceptres, but all shepherds use them to administer laws, just as Hammurabi does. They get comparable results. Like his model, Zeus, the king protects the weak, including other men’s wives (if not widows) and orphans.50 He also sacrifices on behalf of the people. He does not provide water, for he has no irrigation projects to his name, but he is responsible for their prosperity. Thanks to the Muses’ help, Hesiod says, he can guide the people.51 He leads and they follow––the pastoral bargain. As in Mesopotamia, the rhetoric of royal justice centres on ‘straightness’. As Hesiod says, the Greek shepherd must reach ‘straight verdicts’. Taking the ‘verdicts’ in a larger sense, he must provide ‘straight justice’. Homer agrees: in the trial scene on the shield of Achilles, the best judge speaks the straightest.52 By the same token, the bad shepherd, identifiable in Hesiod because he is a bribe-taker, the same as elsewhere, causes ‘an uproar’ as he judges by means of ‘crooked verdicts’.53 Meanwhile, Zeus provides ‘straight’ themistes, apparently in the sense of ‘customary proceedings’.54 Here lies the crucial difference between Mesopotamia and Greece. The Greek king does not make laws. He performs the Mesopotamian king’s other duty, administering laws. Lawmaking belongs to the gods, who set forth laws (or norms) such as themistes.55 Because straightness and themistes belong 46

Il. 10. 73, 23. 411, Od. 3. 469, 15. 151, 17. 109. Son: Il. 9. 81. Headman: Il. 4. 296. Mentor: Od. 24. 468. Dryas: Il. 1. 263. 48 Jason: Th. 1000. Amphitryon: Scut. 41. Alcmaeon: fr. 193.1 M-W. Antimachus: fr. 10a. 47–8. Another view: Haubold (2000), 28–32. 49 50 51 Ske¯ptron: Il. 2. 201. Hes. Op. 328–34. Hes. Th. 81–6. 52 53 Il. 18. 507–8. Hes. Op. 219–21. 54 Hes. Op. 7, 9–10. Themistes as ‘dooms’: Jebb (1894), 54. A narrower view: Rudhardt (1999), 33, but broad enough to reject earlier views that themistes were not proceedings. 55 Norms only: a common view going back to Maine (1866), 3–4, 102–3, 138; recently Gagarin (1986) ch. 1. Laws: an older view going back to Meursius (1732–7); recently Naiden (2006a), 171–4. 47

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to Zeus, even the king is subject to them. Hesiod warns, ‘Justice, Zeus’s virgin daughter, is honored and revered by the gods who hold Olympus, and whenever anyone crookedly abuses and harms her, she immediately tells him about men’s unjust minds as she sits beside him . . .’ The difference from Mesopotamia is sharp. The straight justice that was cause to praise a ruler is now cause to rebuke him. The reason for the shift is the crucial distinction already noted: the Mesopotamian king writes laws and administers them, whereas the Homeric king only administers them. The laws are external or extrinsic to him, and so he can contravene them. Then, Hesiod, says, ‘the people pay for the foolishness of kings who think sharply, speak crookedly, and pervert justice’.56 This is the drawback to the pastoral bargain: the sheep depend on the herdsman. The literature of ancient Israel reacted to the image of the shepherd of the people by denying it to any king of Israel connected with law-making. This is not to say that Hebrew scripture does not know of the image. Isaiah called Cyrus the Great a shepherd in this sense, and the Psalms say the same of David.57 Yet some Hebrew writers and editors did not want this image to legitimize those who would usurp Yahweh’s place as ruler of the people. ‘The word of the Lord came to me’, Ezekiel says, ‘Mortal, prophesy against the shepherds of Israel––prophesy and say to the shepherds: The Lord Yahweh says: “Ah, you shepherds who have been feeding yourselves! Should not shepherds feed the sheep?” ’ The Lord goes on to complain, ‘With force and harshness you have ruled them . . .’ He condemns the unworthy shepherds and repossesses the sheep: ‘The Lord Yahweh says, “I am against the shepherds; and I shall demand my sheep at their hand . . . I shall rescue my sheep from their mouths.” ’ No longer will Yahweh entrust his sheep to helpers: ‘I myself shall be the shepherd of my sheep.’58 Ezekiel has taken the critical attitude of Hesiod further than Hesiod would, and spoken not of the punishment of a king, but of his removal from the throne. Israel, so unlike Greece with respect to the divine support given to a lawgiver, is somewhat like Greece with respect to divine criticism of unjust administration.59 In other parts of the Old Testament, the anti-monarchical attitude cannot go so far. Echoes of Near Eastern kingship appear in Psalm 72 56 58

Hes. Op. 256–62. Ezek. 34: 1–2, 4, 10, 15.

57

Isa. 44: 28; Ps. 78: 70–2. 59 Similarly, Naiden (2006b), 215–16.

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and in Yahweh’s dealing with Solomon.60 The shepherd of the people, however, does not figure in these echoes. As for the shepherd in his Greek guise, that of an administrator of unwritten law, only one passage even concedes that a king might administer such laws––a passage in Samuel in which Samuel speaks of the ‘customary law’, UP$M, that Saul will follow when crowned by the Israelites. An alternative history, friendly to Saul and to kings, emerges from this Samuel passage, just as such a history emerges from passages in Deuteronomy analysed by Bernard Levinson.61 Yet Samuel’s customary law, unlike the themistes of Homer, does not gain the favour of the chief god. Instead Yahweh repudiates it.62 The Hebrew rhetoric of ‘straight justice’ is correspondingly sparse. The root QDC may mean ‘uprightness’ in the sense of ‘justice’, including political as well as juridical justice.63 An Israelite leader, Gad, does QDC in Deuteronomy; so can David; and so can Yahweh in many instances. Job asks whether Yahweh can bend QDC.64 So much judicial ‘uprightness’ might occur in many languages.65 To match Mesopotamian sources, Hebrew would need to speak of making justice straight, not only of doing what is upright. It would need royal sceptres, and it would need frequent attribution to Yahweh of Mesopotamian royal powers such as control over the water supply.66 To match Greek sources, Hebrew would need a Hesiodic obsession with crookedness. These elements are missing.67 Of the features of pastoral lawgiving, Hebrew texts retain mainly the prohibition on alteration of the laws and the threats against those making them.68 The familiar line from Psalm 23 encapsulates this Hebrew attitude. ‘The Lord is my shepherd,’ the Psalmist says, not any human king. 60

61 Ps. 72: 1–4; 1 Kgs. 3: 9–13. Levinson (2001), 513–34. 1 Sam. 8: 9–11. Yet the need for a royal administrator emerges from the failure of Samuel’s sons (1 Sam. 8: 1–4). 63 QDC as a concept with both juridical and political senses: Schmid (1968), a monograph on the legal and other meanings of terms derived from the root QDC Schmid does not discuss ‘straight justice’ in Akkadian or Greek texts. 64 Deut. 23: 21; 2 Sam. 8: 15; Job 8: 3. 65 Although Lakoff (1980) does not say so in his wide-ranging Metaphors We Live By. 66 Although Yahweh does provide prosperity (2 Chr. 31: 10; Mal. 3: 10–11), even when there is a king in Israel. Seeing no ambiguity in this situation: Anderson (1987), 115–16. 67 Yet Deut. 24: 17–8, 27: 19, and 1 Sam. 8: 3. speak of justice that is ‘turned aside’. 68 Deut. 4: 2; Weinfeld (1972), 261–5 notes the Near Eastern parallels. 62

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If the Psalmist is supposed to be David, himself a king of Israel, the attitude is pointed. David, a king, a figure who might be likened to a shepherd, likens himself to a sheep instead, and implies that other worshippers of Yahweh should do likewise. He is upending the regional norm, and saying what a Hammurabi or an Agamemnon never could. The verse, ‘He maketh me to lie down in green pastures,’ offers another example. A Hammurabi lies down at his peril. Once he is down, his stele is down, and so are his laws. To resume: the shepherd who does straight justice, a figure in both law-giving and administration, dominates in Mesopotamia, appears in Homer and Hesiod (but does not dominate, since he does not give laws), and does not appear in Israel, where Yahweh has pre-empted him in regard to lawgiving and scarcely tolerates him in regard to administration.69 Nor does this image appear in the Greece of the lawgivers––of Lycurgus, Solon, and the others. Just as Israel reassigns this image, giving it to Yahweh, Greece eliminates it. Lycurgus, hailed as a god by Delphi, did not need to present himself as a shepherd of this sort, and did not use the language of ‘straight justice’. Demonax, Clisthenes, and Zaleucus are not shepherds of the people, either. In Solon’s case, a substitute appears for the image––the helmsman of the oracle endorsing him. This oracle created a new, nautical context for the notion of a proverbially authoritative lawgiver. In this new context, the lawgiver’s leadership would not be permanent, like a shepherd’s, but temporary. Athens would make port, and the helmsman would leave the vessel, along with the passengers and crew whom he had guided. By envisioning Solon ‘amidships’, the oracle implied that he needed to keep the ship on an even keel, but it did not imply that he would command the ship as shepherd would a flock. The helmsman was not the same as the captain or owner.70 He did not pick the destination or the passengers. In other words, he did not pick a goal such as isonomia (equality under the law) or invent categories such as citizenship or slavery. Solon’s poetry acknowledges as much. While asserting that he was a strong leader, Solon admits that found himself beset by enemies: ‘I made myself strong on every side, the way a wolf does when he 69 Another view: Havelock (1978), ch. 11, holding that ‘straightnesss’ is an oral, not a written concept. 70 A different view, more favourable to the helmsman’s power: Brock (2005), 30. As Brock observes, the ship of state is conceived as a merchant vessel, and so it lacks very numerous rowers easily likened to sheep.

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turns about amid a pack of dogs.’71 In this comparison, the image of the shepherd of the people has undergone an inversion. The sheep are missing and dogs have replaced them. The shepherd, too, is missing, and a wolf has replaced him. If a shepherd did appear, he might encourage the dogs to attack the wolf. A glance at Homeric usage, in which the wolf represents common soldiers, not leaders, adds insult to prospective injury.72 Another of Solon’s comparisons achieves a similar transformation: ‘If anyone else had received this honor [of being lawgiver], he wouldn’t have restrained the people, and he wouldn’t have stopped until he’d skimmed the cream in return. But I stood there like a stone marker in no man’s land.’73 The marker evokes the central figure of the previous passage, but in the guise of something immovable and imperishable. The marker also evokes another steady, upright device available to Solon––the tiller guided by the helmsman. Yet as Edward Harris observed in his essay on Solon’s lawgiving, neither the marker nor the tiller would be suitable symbols for Hammurabi.74 The shepherd of the people carried a sceptre, nothing less. In contrast, Solon the magistrate will have carried no sceptre of office, just as Solon the lawgiver carried no sceptre of a pastoral kind. A Greek magistrate, or any honoured Greek individual, might bear a crown, another of Hammurabi’s devices, but hardly ever a sceptre.75 Save in the hands of the occasional priest, a sceptre was not a routine part of the paraphernalia of Greek public life in the late Archaic and Classical (in other words, the post-Homeric and post-Hesiodic) periods. This emblem of authority had gone the way of the shepherd of the people.76 To concede that it appears in Pindar, who finds it in the hands of Sicilian tyrants, is to confirm its obsolescence: it is both honorific and extraordinary.77 71

Sol. fr. 36. 26–7. 73 Il. 4. 471, 11. 72, 16. 156. Exception: 16. 352. Fr. 37. 5–10 ed. West. 74 Harris (2006a), 295–7 = Harris (2006b), 8–10. Another unsuitable image for Hammurabi noted by Harris: that of a watchdog. Hammurabi as a bull: LH iiia. 7. 75 Blech (1982), 153–62. One magistrate who bore a sceptre, to judge from his title: the eponymous archiskeptouchous at Ephesus (Ephesos 389, 607, 625, 634, 657, 1119, 1824). 76 Priests with sceptres: IG ii2 1544. 37 at Eleusis, unless this sceptre belongs with an agalma; IK Anazbaros 52 in Cilicia; IGLSyr 3. 2. 1184 for Hellenistic Antioch. At Paus. 9. 40. 12, the priestly sceptre is supposedly that of Pelops, and so the Homeric background reappears, yet in a way that shows that the sceptre is now anachronistic: the priest keeps it in his house, not in the shrine. 77 Pi. O. 1. 12, 6. 93 (Hiero). 72

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In regard to the shepherd image, the three societies do not align in the same way as in regard to divine authorship of the laws. In regard to authorship, Israel is distinctive. In regard to imagery, Israel stands at one pole, Mesopotamia at another, and Greece moves away from Mesopotamia and towards Israel. This movement does not result from the diffusion of ideas or practices from East to West.78 Instead it springs from political and cultural similarity. On the one hand, both Israel and Greece reject monarchy. On the other hand, Israelite prophets and Greek seers and epic poets in the Hesiodic tradition act as political critics in the fashion just described. If such figures describe themselves as shepherds, as the prophet Amos does, and as Hesiod does at the start of the Theogony, they do not count as shepherds of the people, but as solitary figures, close to god, as Hammurabi claimed to be, but without any obligation to provide pastoral care for any community.79 With the exception of Zaleucus, another lonely shepherd, they never give or administer laws. They denounce the lawbreaking of others.80 Listening to these denunciations are the people. This situation implies some popular role in law-making in these two societies, where, the sources insist, the people consent to the laws given to them.

III Popular consent to a collection of laws, meaning express consent at a public meeting, does not appear everywhere. Within the Near East, it does not appear in the Mesopotamia of Hammurabi and Lipit-Ishtar. It does appear in Israel, beginning with Exodus. Each of the three 78 Especially given issues of dating, for which see Propp (2006), 150–4, and also the bibliography at Levinson (2008), 27 n. 11. 79 Amos: 1: 1 and 7: 14, where Yahweh summons him using a form of the root ABN, which means ‘proclaim’, as at Muller (1984), 140–1, and which thus resembles nabûm, used of the ‘designating’ of Hammurabi. Hesiod: Th. 22–35, with reservations that further distinguish this sort of shepherd from the Mesopotamian or Homeric one. This scene occurs at a spot where flocks are kept at Op. 658–9. Keeping flocks is one of the tasks that Hesiod mentions for the benefit of his auditor (308, 515–17, 588–92). 80 For this comparison, see the bibliography at West (1997), 307 n. 87, none of which envisions Amos as the more pointed of the two. For Hesiod’s sometimes tentative or awkward relation to Near Eastern models, see Naiden (2003).

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times that Moses brings back laws from Yahweh the Israelites consent to, or acquiesce in, the laws. Before he obtains the Decalogue, but after he has spoken to Yahweh and Yahweh has established His authority, Moses obtains the people’s consent: ‘And all the people answered as one and said, “All that Yahweh spoke we will do.” ’81 This time the people consent in advance, but the next time, when the law is not the Decalogue but the ‘case-laws’ set forth in chapters 20–3, the people consent after the fact: ‘And Moses came and recounted to the people all Yahweh’s words and all the case-laws. And the people answered in one voice and said, “All the words that Yahweh spoke we will do.” ’82 The third time, when the law is mostly ceremonial, the community’s mishap leaves it in no position to consent, but when Moses brought the people laws that Yahweh has written on two tablets, the people acquiesce: ‘Afterwards all Israel’s sons approached, and Moses commanded them all that Yahweh spoke with him on Mount Sinai.’83 Reaffirmations of the link between Yahweh and his people––first at Moab, then at Schechem–– round out this account. The Deuteronomic history goes further. It complements this account with another, concerning the discovery, or alleged rediscovery, of the Sinaitic laws in the Jerusalem temple during the reign of King Josiah. Once the priests and others assigned to refurbish the temple made the discovery, they reported it to the king, who assembled the people, including many exiles from the vanished northern kingdom. The King stood by one of the two pillars before the temple, read aloud from the newly published scroll, and pledged to uphold the laws given on Sinai. In response, ‘all the people stood by the covenant’.84 As at the foot of Sinai, the people consent. This time, however, the account is better attested. The assembly reportedly occurred in 621 bce, twenty-seven years before Solon became archon in Athens. This episode is admittedly embarrassing, not to say implausible: the king leads his people in swearing obedience to a law code that minimizes the monarch as a legal figure.85 Yet nowhere does the Old Testament rescue the monarchy from this embarrassment.86 81 83 84 86

139.

82 Exod. 19: 7, tr. W. Propp. Exod. 24: 3, tr. W. Propp. Exod. 34: 32, tr. W. Propp. 85 2 Kgs. 23: 1–3; 2 Chr. 34: 30–2 lacks the pillars. Deut. 17: 18–20. As opposed to rabbinic writing that elevates the monarch, as in Walzer (2000),

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That the people of Athens consented to the laws of Solon follows from the commission that they gave him. Yet consent was no peculiarly Athenian practice. The Spartans consented to the laws of Lycurgus. Otherwise he would not have gone to Delphi to obtain an oracle endorsing his laws. Plutarch implies that the people of Locri consented to the laws of Zaleucus. Of all Greek lawgivers, only Minos can be imagined to have given laws to which the people did not consent, and with Minos Mesopotamian motifs make themselves felt.87 The difference between Israel and Greece lies elsewhere, in the Hebrew notion that the Sinaitic laws may not be amended as opposed to the Greek notion that the laws of any human lawgiver may.88 The attempts of Greek lawgivers to prevent or delay amendments to their laws only confirm this conclusion. Lycurgus, for one, extracted a promise that the Spartans not amend his laws until he returned from a trip abroad. His death on this trip ought to have made amending them impossible.89 Yet the amendment of the Great Rhetra shows that laws of Lycurgus were amended. Solon, his Athenian counterpart, was less ambitious. He persuaded the Athenians to agree not to change his laws for ten years, or perhaps one hundred, but he made no attempt to preserve them permanently.90 Even a curse he laid on anyone changing the laws was to last for only ten years––the only time limit upon a Greek curse, and all the more remarkable because curses related to ancient Greek legislation and administration were very serious.91 As for Zaleucus, 87 As they also do with Plato, one source for Minos, for Plato makes a claim that no other Greek source does, that Cronus was a shepherd, the same as the chief Mesopotamian gods (Pl. Pol. 271e). Not even Plato, though, will make this claim for Zeus. His nostalgia contents itself with the claim that any good ruler is a shepherd of the people (Pl. Minos 321c). Another view: Mulroy (2007), 115–16, holding that the Minos is satirical. 88 Except, presumably, by Yahweh himself, an instance of this exception occurring, according to Levinson (2008), 45–55, when Yahweh repudiates the principle that sons will be punished for their fathers’ transgressions (Ezek. 18: 1–4). Yet even this instance concerns the enforcement of the law, not the nature of any offence. It is procedural, not substantive. 89 Plut. Lyc. 29. Nic. Dam. FGrH 90 F 57 says that Lycurgus committed suicide while abroad, and thus adds the motif just noticed in the case of Zaleucus. 90 Ten: Hdt. 1. 29. One hundred: Plut. Sol. 25. 1, Arist. Ath. 7. 1. Ten matches the length of a foreign trip of Solon’s, in which case the same motif appears as with Lycurgus, as noted by Stanton (1991), 84. 91 As shown by Rubinstein (2007), 269–86, with bibliography for the opposite view, which remounts to Hirzel (1900).

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Demosthenes says that this lawgiver imposed the death penalty on anyone who proposed a revision of his laws but made this penalty conditional. The condition: that the community refuse to adopt the law. Just as the community had power to reject, it had power to amend. Demosthenes adds a picturesque detail: the proposer of a revision spoke with his neck in a noose.92 Yet no penalty fell on the community for entertaining the revision, or for adopting it. The picturesque detail speaks to a concern for stability, not to any want of power on the part of the community. Just as the Greek lawgiver could not prevent the amendment of his laws, he did not participate in administering them. Lycurgus and Solon went into exile. The relation between Zaleucus and the administration of his laws is not as simple as this, but remains clear. According to Diodorus, the only source for this event, Zaleucus accidently entered an assembly wearing a sword, a violation of one of his own laws. The punishment was death. Rather than try to escape this punishment, he committed suicide. Apocryphal though this story is, it resembles others told of Charondas and the supposed Syracusan lawgiver Diocles.93 In all these instances, a lawgiver ostentatiously anticipates the magistrates in charge of administering the laws. He does not administer them himself. In contrast, Hammurabi and Moses did administer laws, and they are correspondingly far from contemplating exile or suicide for the laws’ sake.94 (For Moses, the danger lay not in exile or suicide, but overwork.95) Greece stands apart, just as Israel stands apart regarding divine authorship. Yet the relations among the three societies involve more than national idiosyncrasy. These relations vary by topic. The issue of divine authorship or support yields one pattern, with Israel being unique, and the issue of political imagery yields another pattern, in which Israel and Greece share reservations about the royal shepherd but Mesopotamia does not. The issue of consent and amendment yields yet another pattern, in which Greece and Israel have consent in 92

Dem. 24. 141, Plb. 12. 16. 9–11. DS 12. 11–19, Eust. Il. 1. 131 ed. van der Valk. 94 Or from being maimed, especially blinded, as happened to Lycurgus at Plut. Lyc. 11. 1 with other sources at Hölkeskamp (1999), 50, with n. 59, although for Hölkeskamp the issue is a folkloric motif of blinded lawgivers, not the precarious position of Greek lawgivers as opposed to Near Eastern ones. 95 Exod. 18: 18. 93

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common, but not the practice of amendment. These patterns form a kaleidoscope. Each time we change our perspective, a new pattern appears––new breaks, but also new bridges.

IV As noted, diffusion cannot account (or cannot fully account) for the similarity among the three specimens of legal ideology described in this chapter. Nor can diffusion account for another feature of this trio––the emergence of law collections at diverse times and places, that is, in Mesopotamia, Israel, and Greece at times ranging from the early second millennium bce to the middle of the first millennium.96 As Raymond Westbrook argued, this odd mix of the similar and the disparate might arise from the parallel evolution of several forms of a legal koine.97 This mix might also arise from another cause, the development of city-states in the eastern Mediterranean and Near East. (‘City-states’ being meant in a broad sense including not only the small states of Hammurabi’s Mesopotamia but also the kingdom of Judah, centred as it was on Jerusalem.98) The last few paragraphs of this chapter deal with this possible cause. The first law codes come in Mesopotamia, the home of the first city-states, and they occur some few centuries after the birth of these states. The Hebrew and Greek codes come later, but so do the city-states. Once again the law codes come not long after the birth of the states. Here is a common feature of a short delay between birth and law code. Another common feature is heightened political competitiveness. Competition was nothing new, of course, but a network of city-states was sure to mean more competitors than before in less space than before. It would mean more conflict than before. This conflict might be external, among states, or internal, within a state. To control this conflict, some leaders resorted to the

96 Cf. the influential view of Jaspers (1949), who regarded the legal and cultural changes of this period as centred on Israel. For one-sided views from the Greek side, see nn. 1 and 3 above. A brief survey of theories of diffusion: Rutherford (2006). 97 Although Westbrook does not use the term koine, which derives from linguistics, in such pieces as Westbrook (1985). 98 A list including Mesopotamian states but not Judah: Hansen (2000).

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expressions of legal ideology found in prologues and the like. These expressions addressed the fractiousness among or within states, and proposed some way to dampen it. In Mesopotamia, Hammurabi had conquered more than a dozen city-states. His problem was that he ruled each one of them on its own terms, a situation that spelled disunity. The answer to this problem was to rule them all on the same terms. Since the prologue provided a charter by which to rule all alike, it formed part of this answer. It did not impose this answer at one stroke. It marked an episode in a struggle to consolidate royal power. In Israel, the Jerusalem city-state was fractious, too, but the reason was not multiple states under one ruler. Instead it was that this particular city-state relied on a henotheistic cult in polytheistic surroundings. To strengthen this cult, Ezekiel and others conceived their god as a king. The earthly king ought to subordinate himself to this new, divine king, as Josiah did. Then the state would be more likely to survive. In the event, it could survive the loss of its monarchy and its capital. Literature given its final redaction after the loss of monarchy and capital reflected this belief, even as it preserved traces of an earlier belief that a king such as Saul could do justice in a manner that Agamemnon would have found familiar. In Greece, city-states once again proved fractious, but for a reason far removed from either the uniqueness of any state or the vulnerable cult in just one state. The city-state was liable to stasis, to tension and civil war. It required an expression of ideology that emphasized not imperial unity or religious unity, but social unity––unity among factions, neighbourhoods, and classes. Since monarchy had disappeared or undergone restriction, the city-state also required a reshaping of the monarchic political vocabulary of Homer and Hesiod. Solon provided this reshaping. ‘Lycurgus’ provided reshaping, too. The Spartan gerousia, for example, reshaped the Homeric council of gerontes. It bears repeating that the goals served by these three expressions of legal ideology were not alike. In Mesopotamia, numerous citystates were to follow a new human ruler. In Israel, a single state was to follow a new divine ruler. In Athens or Sparta, a single state was to follow new laws. Yet they all relied on a law collection that would have some standing independent of that of the lawgiver. Why did the development of legal ideology not take another step, and do away with the lawgiver?

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The Hebrews, for one, might have supposed that Yahweh gave laws to his people without using Moses or any other intermediary. The Book of Jubilees says as much. The Pentateuch, however, does not. The Athenians might have supposed that bodies of officials working at the behest of their assemblies wrote many or most of their laws, and that Solon did not. When the Athenians revised the ‘laws of Solon’ in 410–399 bce, they did not suppose so, but they did assign a secretary, one Nicomachus, the task of editing the laws, and then heard a case brought against Nicomachus for dereliction of duty.99 The laws of Athens supposedly remained those of Solon. The Athenians would no more be rid of Solon than the Hebrews would of Moses. Is this reluctance ancient or primitive? Americans tend to attribute the entire US Constitution to eighteenth-century ‘founding fathers’ who did not write most of it. Some is older than the founding fathers, and comes from colonial laws or early state constitutions, and some is more recent, and takes the form of amendments. In this modern case, the reluctance may be secular, not religious, but it may also reflect an American civic religion. In this religion, as in the ancient religions, magic attaches to the origin of important public documents. To disturb this origin is infelicitous. The body of the document, however, is profane and amenable to change. Whatever his aim or task, the lawgiver ends his career as a talisman.

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Havelock, E. (1978), The Greek Concept of Justice: From Its Shadow in Homer to Its Substance in Plato (Cambridge, Mass.: Harvard University Press). Hirzel, R. (1900), Der Eid (Aalen: Scientia). Hölkeskamp, K.-J. (1999), Schiedsrichter, Gesetzgeber, und Gesetzgebung im archaischen Griechenland (Historia Einzelschriften 131; Stuttgart: Franz Steiner). Jaspers, K. (1949), Vom Ursprung und Ziel der Geschichte (Zürich: Artemis). Jebb, R. (1894) Homer: An Introduction to the Iliad and the Odyssey (Glasgow: J. Maclehose & Sons). Lakoff, G. (1980), Metaphors We Live By (Chicago: University of Chicago Press). Levinson, B. (2001), ‘The Reconceptualization of Kingship in Deuteronomy and the Deuteronomic History’s Transformation of Torah’, VT 51: 513–34. —— (2008), Legal Revision and Religious Renewal in Ancient Israel (Cambridge: Cambridge University Press). Maine, H. (1866), Ancient Law (3rd edn.; London: John Murray). Meursius, J. (1732–7), Themis attica; sive de legibus atticis, in J. Gronovius (ed.), Thesaurus Graecarum antiquitatum 5 (2nd edn.; Venice: Bartholomæi Javarina). Morris, S. (1992), Daedalus and the Origins of Greek Art (Princeton, NJ: Princeton University Press). Moyer, I. (2006), ‘Golden Fetters and the Economies of Cultural Exchange’, JANER 6: 225–56. Mühl, M. (1933), Untersuchungen zur altorientalischen und althellenischen Gesetzgebung (Klio.B 29; Leipzig: Scientia). Muller, H. P. (1984), s.v. ABN, in G. Botterweck, H.-J. Fabry, and H. Ringgren (eds.), ThWAT 5 (Stuttgart: W. Kohlhammer), cols. 140–1. Mulroy, D. (2007), ‘The Subtle Artistry of the Minos and the Hipparchus’, TAPA 137: 115–31. Naiden, F. (2003), ‘The Words of the Alewife at Line 42, Hesiod’s Works and Days’, JNES 62.4: 263–66. —— (2006a), Ancient Supplication (Oxford: Oxford University Press). —— (2006b), ‘Rejected Sacrifice in Greek and Hebrew Religion’, Journal of Ancient Near Eastern Religions 6: 189–223. Oldfather W. (1927), s.v. Lokroi, RE 13.2.: 1289–363. Ostwald, M. (1969), Nomos and the Beginnings of Athenian Democracy (Oxford: Clarendon). Pringsheim, F. (1957), ‘Some Causes of Codification’, RIDA 4: 301–11. Propp, W. H. (2006), Exodus 19–40 (AncB 2a; New York: Doubleday). Raaflaub, K. (2004), The Discovery of Freedom in Ancient Greece (Chicago: University of Chicago Press).

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Ries, G. (1983), Prolog und Epilog in Gesetzen des Altertums (MBPF 76; Munich: C. H. Beck). Roth, M. (1995), Law Collections of Mesopotamia and Asia Minor (Atlanta, Ga. : Scholars Press). Rubinstein, L. (2007), ‘Arai in the Classical and Early Hellenistic Periods: A Real Deterrent or a Concession to Tradition?’, in L. Gagliardi and E. Cantarella (eds.), Symposion 2005 (Vienna: Verlag der Österreichischen Akademie der Wissenschaften), 269–86. Rudhardt, J. (1999), Thémis et les Hôrai: recherches sur les divinités grecques de la justice et de la paix (Geneva: Droz). Rutherford, I. (2006), ‘Preface’, JANER 6: 1–8. Schmid, H. (1968), Gerechtigkeit als Weltordnung: Hintergrund und Geschichte der alttestamentlichen Gerechtigkeitsbegriffes (BHTh 40; Tübingen: Mohr). Smith, G. (1922), ‘Early Greek Lawcodes’, CP 17.3: 187–201. Stanton, G. (1991), Athenian Politics 800–550 bc: A Sourcebook (London: Routledge). Steele, F. R. (1948), ‘The Code of Lipit-Ishtar’, AJA 52: 425–50. Szegedy-Maszak, A. (1978), ‘Legends of the Greek Lawgivers’, GRBS 19: 199–209. Ungnad, A. (1923), Gilgamesch-Epos und Odyssee (Breslau: self-published as Kulturfragen 4/5). Walzer, M. (2000), ‘The Constitution of Monarchy’, in M. Walzer, Y. Lorberbaum, and N. Zohar (eds.), The Jewish Political Tradition, i. Authority (New Haven, Conn.: Yale University Press), 132–45. Weinfeld, M. (1972) Deuteronomy and the Deuteronomic School (Oxford: Oxford University Press) West, M. L. (1997), The East Face of Helicon (Oxford: Oxford University Press). Westbrook, R. (1985), ‘Biblical and Cuneiform Law Codes’, RB 92: 247–64. —— (1995), ‘Slave and Master in Ancient Near Eastern Law’, Chicago Kent Law Review 70: 1631–76. Willetts, R. (2006), ‘Cretan Laws and Society’, in J. Boardman and N. G. L. Hammond (eds.), Cambridge Ancient History, iii. pt. 3 (Cambridge: Cambridge University Press), ch. 39c, 234. Zaccagini, C. (1994), ‘Sacred and Human Components in Ancient Near Eastern Law’, HR 33: 265–86.

5 Hated by the Gods and your Spouse: o in Elephantine and Legal Use of AN$ its Ancient Near Eastern Context Alejandro F. Botta

The pervasiveness of similar legal terms, legal formulae, legal clauses, and even legal formularies across the Ancient Near East, in many cases spanning millennia and covering geographical areas thousands of miles away, has always attracted the attention of Ancient Near Eastern scholars. Only in the past fifty years seminal works have been produced by Yochanan Muffs, Reuven Yaron, and Bezalel Porten in collaboration with Henry Zvi Szubin1 illuminating several aspects of the meaning and transmission of legal expressions from the third millennium through the Hellenistic and Talmudic periods. One of the legal terms that shows such pervasiveness is the verb ‘to hate’, in its various Ancient Near Eastern manifestations,2 whose use in legal contexts can be documented from second millennium Mesopotamia through Egypt Hellenistic period. This chapter takes as a point of o ) in the Aramaic departure the study of use of the verb ‘to hate’ (AN$ documents from Elephantine, which has been called into question by recent studies, and analyses various uses of the metaphor of ‘hatred’ in other Ancient Near Eastern legal and religious texts. In their editio princeps of some of the Elephantine papyri, the o was early interpreted by Sayce-Cowley as ‘probably a term AN$ technical term for divorce’3 and reaffirmed as a ‘legal term for 1

Muffs (1969); Yaron (1961); for Porten and Szubin see references. Hebrew AN$ o ; Ugaritic sˇn; Akkadian ze¯ru; Egyptian msd _. 3 Sayce (1906), 38 n. 8 (Sayce-Cowley C = Cowley 9 = TAD B2. 4); see also p. 44 nn. 22 and 23 (Sayce-Cowley G = Cowley 15 = TAD B2. 6). 2

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divorce’ by A. E. Cowley in his re-edition of the papyri.4 Thus, the AN$ o clause in TAD B2. 4: 8–9: VNAN$T YTRB RXA HNBT VZ AQRA IRXA OWY WA RXM IH VNM QPNTW

was translated by Sayce-Cowley: ‘If to-morrow, or any later day, thou buildest on this land (and) my daughter shall afterwards divorce thee and leave thee’5 and by Cowley: ‘If to-morrow or another day you lay out this land and then my daughter divorces you and goes away from you.’6 Further studies on the law and legal formulae of the papyri agreed with that interpretation. Commenting on Sayce-Cowley G (TAD B2. 6) lines 22–9 in his study on Jewish divorce, L. Blau remained convinced that ‘Das “Ich hasse” (TAN$) ist hier, wie Cowley dem Sinne nach richtig übersetzt hat, mit “Ich scheide mich” identisch und der “Preis des Hasses” ist nichts anderes als “Scheidungsgeld” ’,7 and J. N. Epstein provided evidence of similar uses of AN$ o , understood as divorce, in the Jerusalem Talmud.8 A few decades later a new generation of scholars such as A. Verger, E. Volterra, J. J. Rabinowitz, R. Yaron, and B. Porten would reinforce the consensus which understood, without exception, the legal equivalence o with divorce in the legal documents from Elephantine.9 of AN$ A radical challenge to the traditional interpretation of AN$ o was raised by Z. H. Szubin and B. Porten in 1995. When commenting on o in TAD B3. 3: 7–9 they stated: the use of AN$ It has commonly been assumed that the thrust of these clauses was to give each party the right of divorce. Extended examination of the papyri and careful study of comparative legal material make clear, however, that s´n is not a technical term for divorce. These clauses are rather to be understood as protecting the spouse against demotion of status within the context of the still ongoing matrimonial bond.10 4

5 Cowley (1923), 28. Sayce (1906), 38. Cowley (1923), 27. Cowley’s clarification on this clause: ‘VNAN$T “shall express her dislike for you” and separate from you would anticipate the present debate on how to understand the legal meaning of AN$ o in Elephantine’ (Cowley (1923), 28 line 8). 7 8 Blau (1911), 20. Epstein (1908), 368–71. 9 Verger (1965), 116–18; Volterra (1956), 599; Rabinowitz (1956), 40 f.; Yaron (1961), 53–64; Porten (1968), 208–11, 223–5, 340–3. See also Fitzmyer (1971), 162; Kraeling (1953), 148; Mann (1985), 89; Azzoni (2000), 85–106; Lipin´ski (2004), 169–70. 10 Porten and Szubin (1995), 55. 6

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B. Porten adopted this new position in his The Elephantine Papyri in English.11 In a later article H. Z. Szubin and B. Porten developed their argument further and provided additional comparative evidence to support their new interpretation.12 More recently, in his chapter on the law of Elephantine in the monumental collective work A History o not as of Ancient Near Eastern Law,13 B. Porten also defined AN$ ‘divorce’ but as ‘demotion in status’ pointing to the term VRT (expel) as the legal term for divorce in Elephantine.14 The first objection that one should raise against such a position is the fact that accepting o clause is not a divorce clause (and that VRT (expel) that the AN$ is the Elephantine standard term for divorce) implies that the Elephantine documents of wifehood in all their long and detailed legal considerations (and no attestation of the use of VRT (expel)) do not have a clause covering the pecuniary consequences for the parties in case one of them desires to divorce the other party. It is highly unlikely that the parties of a document of wifehood would include several legal clauses covering the consequences of a hypothetical demotion in status but not include any provision for the case of a divorce, i.e. the complete cessation of the relationship. Szubin and Porten’s interpretation was challenged in a recent study by H. Nutkowicz, who re-examined the issue proposing that AN$ o in Elephantine expresses neither demotion in status nor divorce but feelings of rejection marking a break but not the marriage’s o only dissolution. She states that ‘It is impossible to accept that AN$ means “to repudiate” and refers to demotion in status. Nor does it mean “divorce” but leads to it.’15 She further explains that ‘The declaration of hatred heralds separation, marks a break, but not the marriage’s dissolution. It is a preliminary stage before separation.’16 Szubin and Porten’s and Nutkowicz’ challenges to the traditional o set the discussion of the Elephantine material interpretation of AN$ in the context of the documents and regulations related to marriage and divorce covering a vast geographical area and an extensive chronological span. Their conclusions, therefore, have significant consequences not only for the understanding of the documents of

11 13 15

12 Porten et al. (2011), 182 (B28), n. 42. Szubin and Porten (2001). 14 Westbrook (2003). Porten (2003), 876. 16 Nutkowicz (2007), 220. Nutkowicz (2007), 225.

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wifehood in Elephantine but also for the interpretation of marriage and separation/divorce in the wider Ancient Near Eastern context. In this study we argue in support of the traditional interpretation o as a legal term for divorce in Elephantine based on the of AN$ o , the function of AN$ o in the internal dynamics semantic field of AN$ of the documents of wifehood, the religious use of the metaphor of ‘hatred’, and relevant Ancient Near Eastern comparative data. We o in the Aramaic corpus signifies the metafind that the use of AN$ phor of ‘rejection’, ‘break of covenant’, and ‘physical separation’ and that this use, attested also in other contexts, fits the function of a divorce statement. Our main argument is that the only possible o that makes sense in the Elephantine docuinterpretation of AN$ ments of wifehood is that of a definitive and final break of the marriage, and this interpretation is in harmony with the semantic o and the use of equivalent terms in other Ancient Near field of AN$ Eastern contexts. We will proceed by analysing ancient Near Eastern uses of the verb ‘to hate’ before the Persian period and by providing a close reading of the Ancient Near Eastern examples presented by Szubin and Porten in support of their argument. The Egyptian language has three words that are usually translated into English as ‘to hate’, and ‘hatred’, the verbs msd_j (   ,   ) and hbd_ () both attested since the Old Kingdom and sf ‫א‬t ˘ ) attested since the Middle Kingdom. These words com(  prised a wider semantic field than the English word ‘hate.’ R. Hennig lists these uses for msd_j during the Old Kingdom: (1) hassen, verabscheusen; (2) nicht wollen; (3) verurteilen, in the juristic sense,17 and (1) hassen, verabscheun; (2) unzufrieden sein mit; and (3) nicht wollen for the Middle Kingdom.18 They are used in a variety of contexts. The juristic use of msd_j is attested in the Old Kingdom Decree of Pepy II from Koptos (Koptos C), lines 9–11, which declares:19 ‘for the offices of royal levies, reversionary offering, documents, and sealed matters (and to place them to (do) any work of the house of the king, it is (truly) what the king condemns/rejects ).’ A similar statement addresses the levy of temple (‘hates’  personnel as ‘(16) it is doubly truly what the king condemns (“hates”

17 19

18 Hannig (2003), 569. Hannig (2006), 1141 f. Strudwick (2005), 109–11; Goedicke (1967), 117–27 (Abb. 9).

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  which in this context also means “prohibits”.)’20 In the Pyramid

Texts (Unis and Tetis), another word related to the metaphor of ‘hatred’, hbd_, is used with the meaning of ‘despicable, detestable’ (PT 255) ˘in an ethical sense.21 The theological treatise known as the Memphite Theology22 states: ‘So were the male life-principles made and the female life-principles set in place––they who make all food and every offering––through that word that makes what is loved and what is hated.’ The last sentence has been interpreted as referring to some moral concepts,23 but it actually refers to food and offerings that are ‘accepted’   ‘loved’) and rejected (i.e. msd _yt    ‘hated’). (i.e mryt.  The Dispute Between a Man and his Ba uses msd_ to denote enmity, ‘More than a sturdy child, about whom it is said “He belongs to his (father’s) hated one” (his enemy)’. 24 The semantic field of the words associated with the metaphor of ‘hatred’ in ancient Egypt does not suggest a meaning akin to a demotion in status in an ongoing relationship, but the idea of rejection, despising, condemnation, and enmity, which denotes precisely the opposite, i.e. the attempt to put distance between the subject who ‘hates’ and the object of ‘hatred’, completely severing the relationship. The metaphor of ‘hatred,’ however, is not found in early Egyptian marriage documents. These documents use verbs such as ‘to throw out, send away (h‫ ’;)א‬and ‘to depart, go’ (sˇm),25 as does the demotic ˘ H5-DP 486 [3546] dated during the early Persian marriage contract period which uses h‫‘ א‬to leave’ by both husband and wife.26 A more complex formulae ˘is attested from the late sixth century onwards, which include the verb ‘to hate’ (mst) iw = y h‫ = א‬t h.m.t mtw = y mst = t mtw-y hn k.t s.h.m.t r.h.r = t ‘If I repudiate you as wife, be it that I ˘ it that I wish (?) another woman than you as my wife.’27 hate you, be Szubin and Porten state that ‘in this context it means that he is finally 20 The same decree is attested in Koptos B has the textual variant: wj m mdw sbjt pw (       ) ‘it is a conspiracy akin to rebellion’ instead. 21 Allen (2005), 45. 22 Dated during the Egyptian XIX Dynasty by Allen (2003), 21 f. and during the XXV Dynasty by Junge (1973). 23 24 Allen (2003), 22. Shupak (2003), 323. 25 Pestman (1961), 58–60; see also Toivari-Viitala (2000), 90–4 for Deir el-Medina. 26 Martin (1999), 194. 27 Pestman’s translation (Pestman (1961), 64). We prefer to translate h‫ א‬as ‘to leave’ ‘to send away,’ and the whole formula as: ‘If I send you away as a wife, be it that

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divorcing her because he had previously “hated” her, i.e. demoted her by declaration that she is no longer his first ranking wife, or brought another woman into the household to be the primary wife, with the consequence that she was demoted to a secondary status.’28 There is, however, absolutely no evidence of the legal institution of repudiated, demoted wives in ancient Egypt. In addition, the same legal formula is stated by the wife: ‘If I repudiate you as a husband, and hate you, and I wish another man instead of you’ in P. Berlin 3078 (493 bce) and P. Libbey (337 bce).29 Nutkowicz interprets hn in ˘ a volitional way as expression of feelings but, as Lüddeckens demonstrates, in this context ‘hn ‘vorzuziehen’ den Sinn von ‘heiraten’ hat’.30 ˘ Mesopotamian evidence Szubin and Porten When introducing the state that the term ze¯ru ‘signifies repudiation or rejection, the effect of which is tantamount to a breach of contract due to demotion of status within an existing relationships’31 (emphasis mine). The rich legal documentary evidence offered in support of their position, however, seems to be in agreement only with the first part of such statement i.e., ze¯ru is clearly attested with the meaning of repudiation, rejection, or breach of contract. However, such actions evidence in every legal case, not that the existing relationship or bond continues, but that the previously existing relationship ceases to exist. Szubin and Porten organize the Ancient Near Eastern comparative data in several categories. In the category of a ‘woman vis-à-vis a man’ the first text quoted is CT 6 26a: 10.32 This cuneiform tablet from the reign of Sabium (First Babylonian dynasty, c.1781–1767 bce), provides strong evidence not in favour but precisely against the interpretation of ze¯ru as demotion of status within an existing I reject you, be it that I chose another woman instead of you as a wife.’ It is true that the Egyptian expression ‘r.h.r = t’ can be translated as ‘instead of you’ or as ‘besides you’ but the translation should be consistent in both cases, when it is the husband or when it is the wife that pronounces the legal formulae. To translate the expression in both cases ‘besides you’ would imply to accept not only polygamy but also polyandry in Egyptian society. Egyptologists agree, however, that Egyptian marriage was monogamous (see Pestman (1961), 3, 62). 28 Szubin and Porten (2001), 59. 29 Pestman (1961), 62. 30 Lüddeckens (1960), 269; also Pestman (1961), 62. The same applies to the use of Egyptian mr instead of hn in older Egyptian documents (Pestman (1961), 61). 31 Szubin and Porten˘ (2001), 55. 32 Schorr (1913), 57 (no. 33); Westbrook (1982), i. 111–12, extensively discussed by Westbrook (1982), 35–8, 228.

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relationship. The text states that in case the husband divorces his wife (eze¯bu) he shall pay 1 mina of silver, but if the wife ‘hates’ him (ze¯ru), they will throw her down from a tower. Being thrown from a tower could hardly allow the ongoing relationship with her husband to continue.33 The following text quoted by Szubin and Porten in this category (‘woman vis-à-vis a man’) is LH 142: ‘If a woman hates (ize¯rma) her husband, and declares, ul tahhazanni (“you shall not ˘˘ have me”) her circumstances shall be investigated by the authorities of her city quarter, and if she is circumspect and without fault, but her husband is wayward and disparages her greatly, that woman will not be subject to any penalty; she shall take her dowry and she shall depart for her father’s house.’ M. Roth translates ul tahhazanni ˘ ˘ is too as ‘you will not have marital relations with me’ which 34 restrictive. The general meaning of the term aha¯zu is ‘to seize, to hold a person, to possess, to take over’,35 and was widely used in the sense of ‘to take a wife, to marry’.36 For example, LH 166 states that the married brothers shall provided ‘the silver value of the bridewealth’ for their ‘unmarried (la ahzu) brother’ to enable him ˘ ‘to marry (usˇahhazusˇu) a wife’. The expression ul tahhazanni, as ˘ ˘ ˘˘ correctly pointed out by S. Greengus, should be understood, there37 fore, as ‘another variety of divorce formula’. LH 142 establishes that if the judge finds that she is ‘circumspect and without fault’ and her husband is ‘wayward’ the woman won’t be subject to any penalty but ‘she shall take her dowry and depart for her father’s house’. On the other hand, if her behaviour towards her husband and possessions was not appropriate, ‘they shall cast that woman into the water’. Such punishment was a regular measure to prevent women from divorcing their husbands, which reinforces the interpretation of ze¯ru followed by ul tahhazanni as a divorce formula. The following document ˘ ˘ Szubin and Porten (ND 2307: 47–8)38 is a Neo-Assyrian quoted by 33

Westbrook (1982), 228, understood the use of ze¯ru in this context as a divorce without grounds (Cf. LH 143). 34 The only case of aha¯zu quoted in CAD with the meaning of ‘You shall not touch me’ is precisely LH 142:˘ 61 (CAD I. 175a), more explicitly in CAD XXI. 97b s.v. zêru, ‘if a woman dislikes her husband and says, “You have no marital rights (any more) to me.” ’ 35 CAD I. 173b. s.v. aha¯zu. 36 ˘ of this use are quoted in CAD I. 175b–177a. Dozens of examples 37 Greengus (1969), 518 n. 61. 38 Parker (1954), 37–9 (text), p. 55 (plate); Postgate (1976), 103–7; Radner (2004), 75–7. For discussion see Radner (1997), 159–60.

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marriage document from Nimrud, dated 656 bce, between Milki-ramu and Amat-Ast.arti who gives S.ube¯tu, her daughter in marriage to him. The use of ze¯ru (NA zia¯ru) in this document is quite illustrative: ‘If S.ube¯tu does not conceive and bear (children), she shall buy a slave girl in her stead and set her in her place and (so) bring sons into existence. The sons (will be) her sons. If she loves the slave-girl, she shall keep (her), if she hates her, she shall sell her. If S.ube¯tu hates Milki-ramu she shall leave (him), if Milki-ramu hates his wife (?), he shall pay (back the dowry) to her two-fold.’39 We see that the verb zia¯ru (to hate) is used in connection with the end of the relationship. In case of the slave-girl, she is being sold and, therefore, will leave the household. In the case of the wife ‘hating’ her husband, she leaves him, in the case of Milki-ramu ‘hating his wife’ the break of the marriage bond is clear by the return of (twice) the dowry.40 Another example of ‘to hate’ indicating the end of the marriage bond is evident in the Sumerian Laws Handbook of Form.41 The text treads: ‘(iv 10–11) He deflowered (or ‘he married’) her. After he deflowered her. (iv 12–14) He despised42 her. He shall weigh and deliver a divorce settlement in silver. (iv 15–16) He cut her hem. (iv 17–18) (Another man) shall marry her; he (the first husband) will not declare that “She is my spouse.” ’ The context clearly points to the fact that ze¯ru denotes the end of the marriage which is followed by the divorce money being paid and the freedom of the wife to remarry without allowing the former husband any future claim to her. The following text quoted by Szubin and Porten (2001) comes from the series ana ittisˇu 7 iv 1–5 which reads: ‘if a wife hated her husband and said, “you are not my husband” ’. This formula is exactly the same as the one used by husband and wife in TAD B3. 8: 21, 24, and there is no question that in ana ittisˇu we are facing a divorce formula. In the categories of ‘a man vis-à-vis his adoptive father’ and ‘a father vis-à-vis his adopted son’ the first of the texts quoted is LH 193: ‘If the child of (i.e. reared by) a courtier or the child of (i.e. reared by) a sekretu identifies with his father’s house and hates 39

Postgate (1976), 106. This text (ND 2307: 45–6) is also quoted by Szubin and Porten (2001) in the category of ‘a mistress vis-à-vis her handmaiden’. 41 Roth (1997), 46–54. 42 The verb that Roth translates as ‘despised’ is the Sumerian equivalent of ze¯ru. 40

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(izı¯rma) the father who raised him or the mother who raised him and departs (ittalak) for his father’s house, they shall pluck out his eye.’ We have already seen the combination of ‘hatred’ with a verb signifying departing, or going away. Again, in this case we cannot speak of a demotion of status of the child but the punishment for a complete breach of the relationship and physical separation of the parties. The next text quoted is the adoption contract from Ugarit PRU III, RS 15. 92:43 ‘Yasiranu son of Hallamanu has bound in contract Ilkuya, son of Yasub-ilu, as his (adopted) son; he made (with) him an ammatu contract of adoption. If in the future, Yasiranu hates (izir) Ilkuya (as) his adopted son, he is to pay him 100 (shekels of) silver. But if Ilkuya hates (izir) Yasiranu (as) his father, he is to wash his hands, and go free into the street.’44 Both texts point not to a ‘demotion of status within an existing relationship’ but to a complete cessation of the legal bond and the physical separation of the parties. Even if not explicitly stated, it is evident that if ‘Yasiranu hates Ilkuya (as) his adopted son’, Ilkuya is not going to remain in Yasiranu’s home. Additional adoption texts from Ugarit display similar use of ze¯ru. PRU III, RS 16, 344 is one the ‘brothership’ adoption documents that stipulates that if one of the parties ‘hates’ the other, a penalty is imposed and the party can ‘go free’.45 In the case of Ug V 81, RS 21. 230 p. 73 the woman Inuya takes Yaddu-adu as her adopted brother. The document then states: ‘If Yadu-addu hates Inuya his sister and (says) “I will not live with you” Yadu-addu is to [ . . . ] and go free.’46 ‘To hate’ in the Ugarit legal documents is always followed by the dissolution of the relationship and contractual bond.47 Westbrook has noted that ‘the combination of ze¯rum (to hate) with a verb or phrase dissolving the relationship was sufficiently familiar in such clauses to allow the second, operative limb of the protasis to be dropped’.48 In the category of ‘a man vis-à-vis the wife of his adoptive father’, another provision of the same Ugarit adoption contract is presented, addressing the possibility of the wife becoming the widow of Yasiranu, 43

PRU III, RS 15. 92, p. 54–5. It is worth noticing that Nougayrol translates both instances of izir as ‘veut se séparer’, RS VI. 55 45 46 Miller (1980), 242–4. Miller (1980), 244–5. 47 See also PRU III, RS 16. 200 p. 64; a son ‘hates’ his adoptive mother, Miller (1980), 241. 48 Westbrook (1982), ii. 38. 44

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Ilkuya’s adopted father, RS 15. 92: ‘Moreover, if Yasiranu dies and Milkaya, his wife, does not leave the house, if Ilkuya hates her, she may take the 80 (shekels of) silver which she had brought (i.e. her dowry to Yasiranu and go free.’ The use of ‘to hate’ and ‘to go’ appear again in a context where there is no demotion of status but a termination of the previous status quo. In this case we can appreciate the wider meaning of ‘to hate’ as a verb denoting not feelings but rejection, tantamount to the ending of the bond. o (hate) clause The similarity of this clause with the Elephantine AN$ is remarkable. In the category of ‘A man vis-à-vis his town (LH 136) or his town and his sovereign (LE 30)’, in both cases the laws address the situation of a husband who voluntarily hates (ze¯ru) and leaves his city (and his sovereign) and his wife. LH 136 presents an interest synonymous parallelism between a¯lsˇu iddı¯ma itta¯abit (if a man deserts his city and flees) and a¯lsˇu ize¯ruma innabitu (he repudiated his city and fled). The text reads: sˇumma awı¯lum a¯lsˇu iddı¯ma itta¯abit warkisˇu asˇsˇassu ana bı¯t sˇanîm ¯ıterub sˇumma awı¯lum sˇû ittu¯ramma asˇsˇassu is.s.abat asˇsˇum a¯lsˇu ize¯ruma innabitu asˇsˇat munnabtim ana mutisˇa ul itâr (If a man deserts his city and flees, and after his departure his wife enters another’s house––if that man then should return and seize his wife, because he repudiated his city and fled, the wife of the deserter will not return to her husband).49 Desertion and repudiation are both associated with verbs that imply abandonment and distance between the subject who ‘hates’––the man––and the object of ‘hatred’––the city. The fact that the man can return to the city cannot be constructed as evidence of a ongoing relationship or bond with the city. The text wants to address a situation where the husband leaves the city for no reason, and, therefore, surrenders his claim to his wife.50 The following text quoted by Szubin and Porten (2001) is LE 30. The Laws of Eshnunna have reached us in two parallel tablets, A and B, which are used in a complementary way in the various

49

Roth 1997’s translation. If the husband leaving the city is justified, e.g. in LE 29 where he is captured and taken away, the consequences are quite different, he can come back and reclaim his wife. 50

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editions. They differ, however, on one of the verbs used in LE 30. A ii 45 has it-ta-bi-it and B ii 8 has it-ta-ah-bi-it.51 ˘ ittahbit asˇsˇassu sˇanûmma LE 30 sˇumma awı¯lum a¯lsˇu u be¯lsˇu ize¯rma ¯ıtahaz inu¯ma ittu¯ram ana nasˇatisˇu ul iraggam (If˘ a man hated his city ˘ his master and fled, another indeed took his wife: whenever and he returns to his wife he shall have no claim).52 As Yaron (contra Szlechter 1965: 295) pointed out ‘there seems to be no ground for assuming that ‘hatred’ had to find expression in some overt act prior to the flight’.53 As we have seen, both verbs are used together in several Ancient Near Eastern legal traditions and should be understood as a common hendiadyc pair to denote the break of the bond.54 This use is also present when the gods are those who ‘hate’ humans. Utnapishtim declares to his people ‘Enlil hates me (izêrannima), I cannot dwell in your city.’55 Turning to the Hebrew Bible, we find that the root AN$ o occurs mv$ Noi (hatred) occurs seventeen times,57 168 times.56 As a noun HA as an adjective HA m YN i$ oi (hated) occurs once,58 while as a verb it v

51

For discussion of this variant or scribal mistake see Goetze (1956), 84–6; Westbrook (1982), 55; Yaron (1988), 23 n.15 who adopt ittabit against ittahbit. ˘ Roth, on the other hand, prefers ittahbit without any substantive difference ˘ city and his master and then flees, and in her translation: ‘If a man repudiates his someone else then marries his wife, whenever he returns he will have no claim to his wife.’ 52 Yaron’s 1988 translation. 53 Yaron (1988), 208 n. 119. 54 In the category of ‘a daughter-in-law vis-à-vis her mother in law’ the text quoted (CT 29 19: 14) is not a contract, as Szubin and Porten state, but a letter with no apparent legal implications. 55 Gilg. XI. 39–40, quoted by Lipin´ski 2004: 167. 56 Gen. 24: 60; 26: 27; 29: 31, 33; 37: 4–5, 8; Exod. 1: 10; 18: 21; 20: 5; 23: 5; Lev. 19: 17; 26: 17; Num. 10: 35; 35: 20; Deut. 1: 27; 4: 42; 5: 9; 7: 10, 15; 9: 28; 12: 31; 16: 22; 19: 4, 6, 11; 21: 15–17; 22: 13, 16; 24: 3; 30: 7; 32: 41; 33: 11; Josh. 20: 5; Judg. 11: 7; 14: 16; 15: 2; 2 Sam. 5: 8; 13: 15, 22; 19: 7; 22: 18, 41; 1 Kgs. 22: 8; Isa. 1: 14; 60: 15; 61: 8; 66: 5; Jer. 12: 8; 44: 4; Ezek. 16: 27, 37; 23: 28–9; 35: 6, 11; Hos. 9: 15; Amos 5: 10, 15, 21; 6: 8; Mic. 3: 2; Zech. 8: 17; Mal. 1: 3; 2: 16; Ps. 5: 6; 9: 14; 11: 5; 18: 18, 41; 21: 9; 25: 19; 26: 5; 31: 7; 34: 22; 35: 19; 36: 3; 38: 20; 41: 8; 44: 8, 11; 45: 8; 50: 17; 55: 13; 68: 2; 69: 5, 15; 81: 16; 83: 3; 86: 17; 89: 24; 97: 10; 101: 3; 105: 25; 106: 10, 41; 109: 3, 5; 118: 7; 119: 104, 113, 128, 163; 120: 6; 129: 5; 139: 21–2; Job 8: 22; 31: 29; 34: 17; Prov. 1: 22, 29; 5: 12; 6: 16; 8: 13, 36; 9: 8; 10: 12, 18; 11: 15; 12: 1; 13: 5, 24; 14: 17, 20; 15: 10, 17, 27; 19: 7; 25: 17, 21; 26: 24, 26, 28; 27: 6; 28: 16; 29: 10, 24; 30: 23; Eccl. 2: 17–18; 3: 8; 9: 1, 6; Esth. 9: 1, 5, 16; Dan. 4: 16; 2 Chr. 1: 11; 18: 7; 19: 2. 57 Num. 35: 20; Deut. 1: 27; 9: 28; 2 Sam. 13: 15; Ezek. 23: 29; 35: 11; Ps. 25: 19; 109: 3, 5; 139: 22; Prov. 10: 12, 18; 15: 17; 26: 26; Eccl. 9: 1, 6. 58 Deut. 21: 15.

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occurs 131 times in Qal,59 only twice in Niphal,60 and fifteen times in Piel.61 The first difference that one notices between the use of AN$ o in the Hebrew Bible and the use of the noun ‘hate’ or the verb ‘to hate’ in English is that the semantic field of ‘hate’ is centred in English around expressions of feelings. The verb ‘to hate’ is defined as a transitive verb as ‘to feel extreme enmity towards’ or ‘to have a strong aversion to’, to ‘find very distasteful’, and, as an intransitive verb, ‘to express or feel extreme enmity or active hostility’.62 On the other hand, in the Hebrew Bible its meaning is active and dynamic and only occasionally describes an internal and/or passive feeling.63 In o conveys Exod. 1: 10; Lev. 26: 17; Num. 10: 35 and passim, AN$ the idea of enmity. Isaiah (Isa. 1: 10–15) portrays Yahweh rejecting sacrifices and festivities of Judah’s elite altogether. Isa. 1: 14 clearly states Yahweh’s ‘hate’ for new moons and appointed festivals i OK i oP vx N HA mv$ Nom OK eYD q EWoMW eY$ oaD vX m ). The context makes it clear that (Y$ we are not dealing here with a simple distaste, feeling, or any kind of internal emotional response. Yahweh does not accept but rejects those celebrations. And in this context, due to the injustice practised by the religious and political leaders, the rejection is total and final. iv SA xM m YT i AN a$ om A similar situation is described in Amos 5: 21a (YT d OK eYG dx X) ‘I hate, I despise your festivals,’ which clearly conveys the idea of rejection. There is no a demotion of status of the festivals but a complete refusal to accept them. A similar use is found in Ugarit. ‘Now there are two (kinds of) feasts (that) Balu hates,

59

Gen. 24: 60; 26: 27; 29: 31, 33; 37: 4–5, 8; Exod. 1: 10; 18: 21; 20: 5; 23: ; Lev. 19: 17; 26: 17; Deut. 4: 42; 5: 9; 7: 10, 15; 12: 31; 16: 22; 19: 4, 6, 11; 21: 15–17; 22: 13, 16; 24: 3; 30: Josh. 20: 5; Judg. 11: 7; 14: 16; 15: 2; 2 Sam. 5: 8; 13: 15, 22; 19: 7; 22: 18; 1 Kgs. 22: 8; Isa. 1: 14; 60: 15; 61: 8; 66: 5; Jer. 12: 8; 44: 4; Ezek. 16: 27, 37; 23: 28; 35: 6; Hos. 9: 15; Amos 5: 10, 15, 21; 6: 8; Mic. 3: 2; Zech. 8: 17; Mal. 1: 3; 2: 16; Ps. 5: 6; 9: 14; 11: 5; 18: 18; 21: 9; 25: 19; 26: 5; 31: 7; 34: 22; 35: 19; 36: 3; 38: 20; 41: 8; 45: 8; 50: 17; 69: 5, 15; 86: 17; 97: 10; 101: 3; 105: 25; 106: 10, 41; 118: 7; 119: 104, 113, 128, 163; 120: 6; 129: 5; 139: 21–2; Job 8: 22; 34: 17; Prov. 1: 22, 29; 5: 12; 6: 16; 8: 13; 9: 8; 11: 15; 12: 1; 13: 5, 24; 15: 10, 27; 19: 7; 25: 17, 21; 26: 24, 28; 27: 6; 28: 16; 29: 10, 24; 30: 23; Eccl. 2: 17–18; 3: 8; Esth. 9: 1, 5, 16; 2 Chr. 1: 11; 18: 7; 19: 2. 60 Prov. 14: 17, 20. 61 Num. 10: 35; Deut. 32: 41; 33: 11; 2 Sam. 22: 41; Ps. 18: 41; 44: 8, 11; 55: 13; 68: 2; 81: 16; 83: 3; 89: 24; 139: 21; Job 31: 29; Prov. 8: 36. 62 ‘Hate’: Merriam-Webster Online Dictionary, 2010, . 63 Brice (1962), 7.

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three (that) Cloud-Rider (hates).’64 In Exod. 20: 5 is the people who might reject (‘hate’) God: ‘You shall not bow down to them or worship them; for I the Lord your God am a jealous God, punishing children for the iniquity of parents, to the third and the fourth mv$ Noo vL).’ generation of those who reject me (YA AN$ o is used in synonymous parallelism with the notion of physical i AN a$ om LH xvQ OYE i RaM v OYE i$ moRv½OE iv W distance/separation in Ps. 26: 5, YT AoL B$ aoa A (I hate the company of evildoers, and will not sit with the wicked). There is no ongoing relationship that is maintained with the wicked after such a statement, the ‘divorce’ from them is clear and o ‘does imply a distancing from the evident. As Lipin´ski states, AN$ hated person, that person’s removal from the surroundings of the person who hates’.65 In addition to the statement that ‘in the Bible AN$ o appears frequently as a technical term with the meaning “to repudiate” or “to demote” ’66 we observe that the semantic field of AN$ o covers also the meanings of enmity, schism, rejection, physical separation, severance, which are quite appropriate to designate the end of a conjugal or any other kind of relationship. As R. D. Branson o ) occurs it has states, ‘In the vast majority of contexts in which (AN$ the semantic value of breach or lack of covenant. An emotional connotation may secondarily be included in its meaning, but its primary idea is a description of the breakdown of covenantal relationships.’67 When we turn to the specific issue of the dissolution of marriage, the Hebrew Bible expresses the break-up of the marriage by the x$ i o (to send away, expel) metaphor of physical separation: Heb. XL (Deut. 22: 19, 29; 24: 1, 3, 4 et passim); Heb. $oRG (to expel, drive omiWRG d v H$ om dA i = ‘divorcee’ Lev. 21: 7, 14; 22: 13). Heb. SA xM m, away) (H$ m (to leave, abandon) (HB miWZE q H$ om di A (cast off) (Isa. 54: 6b); Heb. BZxE Isa. 54: 6a); Heb. AYC i WoHL v (to put away) Ezra 10: 3,68 19; but also by a$ om (cf. withdrawal of the metaphor of rejection expressed by AN affectio maritalis in Roman law), for example, in Judg. 15: 2 ‘where Samson’s alleged “hatred” for his wife is pleaded in justification of a$ om is also used in her second marriage.’69 It is worth noticing that AN x$ i o (to send away, expel) and with $oRG (to expel, connection with XL drive away) in contexts where the breaking of covenantal relationship 64

65 CTA 4: X; COS 1: 258. Lipin´ski (2004), 164. 67 Szubin and Porten (2001), 58. Branson (1976), 78. 68 See also the Mes.adah bill of divorce, which uses sˇbq (to leave) and trk (to expel). Yaron (1971), 445–6. 69 Yaron (1957a), 117. Cf. Deut. 24: 3; Isa. 60: 15. 66

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is evident. Abimelech and Abraham had entered into a covenant vd iW Yx OH e YN a$ vo TYRiB d ) after the dispute over the wells (Gen 21: 27, v (iWTRvK 32) and when another famine struck the land, Isaac went to Abimelech and remained in Gerar under his protection (Gen 26: 1, 11). After a while Isaac’s growing power threatens the Philistines and he is expelled from Gerar by Abimelech (Gen 26: 16). Later on, Abimelech and his adviser come to Isaac to propose a reconciliation and Isaac says to them, ‘Why have you come to me, seeing that you e AN'$ ov ) me [i.e. broken the covenant with me] and have hated (OT i XL v ox d $T vx d W) from you?’ (Gen 26: 27). A similar have sent me away (YNiW situation is found in the story of Jephthah in Judg. 11. When the wife of Gilead, his father, bore him sons, Jephthah, the son of a prostitute, was expelled from the house by his stepbrothers (Judg. 11: 1–3). When the Ammonites attacked Israel the elders of Gilead, his brothers among them, came to Jephthah for help. He responded: e AN a$ ov ) me and drove me ‘Are you not the very ones who hated (OT i $oRvG mT vx d W) of my father’s house?’ (Judg. 11: 7). In Hos. 9: 15 out (YNiW i AN a$ ov ) Israel and drives them away (O$ oaRvG mA q ). In God hates (OYT Jer. 12: 7–8 the result of God hating Israel is that God abandons (BZE) his house and deserts ($oUN) his possession. We have seen that the use of the verb ‘to hate’ in connection with verbs that denote separation and physical distance is a common feature of Ancient Near Eastern legal terminology.70 Having surveyed the relevant Ancient Near Eastern data, we now a$ om in the legal documents from Elephantine. turn to the use of AN Considering that the context is essential for the understanding of the term, we cite the legal formulae in the documents in extenso. o that we want to analyse occurs in TAD B2. 4. The first case of AN$ The document is a grant of usufruct to son-in-law drafted between Mahseiah son of Jedaniah, and Jezaniah son of Uriah on 1 December 459 bce. Mahseiah wants to assure Jezaniah, his son-in-law, that in case his daughter leaves him, she won’t be able to sell the property but it would be their children who should have the rights to the it. The text reads: RXA HNBT VZ AQRA IRXA OWY WA RXM IH VNM QPNTW VNAN$T YTRB (if tomorrow or the next day that land o ) you and go you build (up and) afterwards my daughter hate (AN$ out (QPN) from you), TAD B2. 4: 8–9. We have again the attestation of

70

For the use of AN$ o in later Jewish texts see Nutkowicz (2007), 221–2.

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the verb ‘to hate’ associated with a verb denoting the distanciation of one of the parties vis-à-vis the other. As we have already stated regarding the Mesopotamian evidence, it would be wrong to assume that these two verbs denote separate actions. TAD B3. 3 (Kraeling 2) is a document between the parties Ananiah son of Azariah, a servitor of YHH, the god who is in Elephantine, and Meshullam son of Zaccur, an Aramean of Syene, written by Nathan son of Ananiah on 9 August 449 bce. The document establishes that Meshullam gives his handmaiden Tamet in wifehood to Ananiah. After the declaration ‘she is my wife and I am her husband from this day and forever’ (TAD B3. 3: 3–4) and the list of items composing the o formulae, as stated by dowry that Tamet brings to Ananiah, the AN$ the husband, reads: YTTNA TMTL TAN$ RMAYW HDEB YNNE OWQY IRXA OWY WA RXM HDYB TLENH YZ LKW 2 R 1+3+3 ILQT FSK TMTL ITNY H$ARB AN$ FSK UWX DE OX IM QPNHT

Tomorrow or (the) next day, should Anani stand up in an assembly and say: ‘I hate Tamet my wife,’ silver of hatre(d) is on his head. He shall give Tamet silver, 7 shekels ^2 q(uarters)^ and all that she brought in in her hand she shall take out, from straw to string. (TAD B3. 3: 7–9)

and as stated by the wife: HA $ FSK YNNE YLEBL TAN$ RMATW TMT OQT IRXA OWY WA RXM IM QPNHT HDYB TLENH YZ LKW 2 R 1+3+3 ILQ$ FSK YNNEL ITNT H$ARB UWX DE OX

Tomorrow or (the) next day, should Tamet stand up and say: ‘I hate my husband Anani,’ silver of ha(t)red is on her head. She shall give to Anani silver, 7 shekels ^2 q(uarters)^ and all that she brought in in her hand she shall take out, from straw to string. (TAD B3. 3: 9–10)

Both declarations follow a similar pattern, and the penalty for the ‘hatred’ is in both cases the same. The question is therefore, what o fits the document better, demotion in status, interpretation of AN$ divorce, or feelings of rejection? It is hard to imagine that any feelings would be addressed in a legal document or that a penalty would be imposed for those feelings. Perhaps the main objection that could o as a technical term for demotion on be raised against the use of AN$ status is that it is used by both, the husband and the wife, and we expect a legal term to carry the same meaning when used in a legal document no matter who is the subject. Husbands were not

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‘demoted in status’ according to and Porten and Szubin’s interpreto .71 ation of AN$ Porten and Szubin remarked on the omission of the ‘freedom of movement’ clause: to return to her father’s house or go wherever she wished, was ‘not an option for a handmaiden like Tamet. The document’s telling omission thus demonstrates that, in case of repudiation, she was not forced to leave Anani’s domicile but might remain in his household as a married woman, albeit demoted in status.’72 One of the obstacles to this interpretation is the fact that in case of ‘hatred’, Tamet takes out her property. The verb used is QPNHT a haphel form of QPN used in Dan 5: 2f, Ezra 5: 14, 6: 5 to denote the temple objects taken by Nebuchadnezzar out of the temple in Jerusalem. Tamet then, ‘takes out’ what she ‘brought in’ when she entered Anani’s house. How does this taking out of the property fit Tamet staying with Anani? We need to remember that ‘households’ in Elephantine were not Roman villas but very small houses. The apartment that Anani and Tamet sold to Anani son of Haggai, their son-in-law, on 13 August 402 bce (TAD B3. 12) has a total area of 1511/3 square cubits.73 If we use the convention of 46 cm for the cubit, the total area would be c.33 sq.m. Hardly any scope for a separation of property to take place when sharing the same small apartment, or for demoted wives to hang around. Going to wherever she wished was certainly not an option for Tamet, not on the grounds of being kept as a secondary wife but based on the condition of a non-free person. The next document TAD B2. 6 (Cowley 15) was drafted between Esh.or son of S.eh.a, a builder of the king and Mahseiah, and Aramean of Syene, written by Nathan son of Ananiah on 449 bce. The document establishes that Mahseiah gave his daughter Miptahiah in o clause reads: wifehood to Esh.or. The first AN$ YLEB RWXSAL TAN$ RMATW HDEB HYXUPM OWQT IRXA OWY[ W]A RXM

2 R 1+3+3 ILQ$ FSK RWXSAL LQTTW ANZWM LE BTT H$ARB HAN$ FSK TYBC YZ IA HL VHTW UWX DE OX IM QPNHT HDYB TLENH YZ LKW BBD ALW IYD{Y}ALW

Tomorrow o[r] (the) next day, should Miptahiah stand up in an assembly and say: ‘I hate Esh.or my husband,’ silver of hatred is on her head. She shall place upon the balance-scale and weigh out to Esh.or silver, 6[+1] (= 7) shekels, 2 q(uarters),and all that she brought in in her hand she shall take 71 72

For similar objections see Nutkowicz (2007), 220. 73 Porten and Szubin (1995), 57. TAD B, 184.

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out, from straw to string, and go away wherever she desires without suit or without process. (TAD B2. 6: 22–6)

When stated by the husband, the AN$ o formula reads: HDEB RWXSA OWQY IRXA OWY WA RXM TLENH YZ LKW DBA[Y]HRHM HYXUPM YTT[ NAL] TAN$ RMAYW HDX FKB DX OWYB UWX DE OX IM QPNHT HDYB BBD ALW IYD ALW TYBC YZ IA HL VHTW

Tomorrow or (the) next day, should Esh.or stand up in an assembly and say: ‘I hate my [wif]e Miptahiah,’ her mohar [will be] lost and all that she brought in in her hand she shall take out, from straw to string, on one day in one stroke and go away wherever she desires, without suit or without process. (TAD B2. 6: 26–9)

This document includes an additional legal formula in the AN$ o clause when compared with TAD B3. 3. In both declarations, by husband and wife, it is stated that Miptahiah will not only ‘take out’ (QPNHT) her dowry, but also ‘go away (VHTW) wherever she desires’. Again, both verbs imply the departure of the wife with her property and not a situation where the wife seems to stay as a demoted wife in the house with her husband. The next document under consideration is TAD B3. 8 (Kraeling 7 + 15 + 18/1, 3, 8, 13, 18, 19, 22, 26, 30) between Ananiah son of Haggai, an Aramean of Elephantine, and Zaccur son of Meshullam, an Aramean of Syene, written by Mauziah son of Nathan on 2–30 October 420 bce. The document establishes that Zaccur gave Jehoishma as wife to Ananiah. o clause reads: The first AN$ EM$YWHY YTTNAL TYN$ RMAYW HDEB HYNNE OWQY IRXA OWY WA RXM HTNWKT HL ITNY HTYBB TLENH YZ LK H$ARB H[A]N$ FSK TTNA YL HWHT AL IBYTK YZ AYSKN TRA$W1+[1+3 IRLX HYNMT ILQ]$ HEB$ I$RK FSK YMD T[YBC YZ] IA [HNM HL] VHT[W] 1 FKB1 OWYB HL ITNY

Tomorrow or (the) next day, should Ananiah stand up in an assembly and say: ‘I hate my wife Jehoishma; she shall not be to me a wife,’ silver of ha[tr]ed is on his head. All that she brought in in(to) his house he shall give her, her money and her garments, valued (in) silver (at) seven karsh, [eight] sh[ekels, 4 +] 1 (= 5) [hallurs], and the rest of the goods which are written (above). He shall give her on 1 day at 1 stroke [and] she may go [away from him] wher[ever] she [desires]. (TAD B3. 8: 21–4)

And spoken by the wife:

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TTNA VL HWHA AL VTYN$ HL RMATW HYNNE HLEBL AN$T [E]M$YWHY IHW FSK HYNNE HLEBL ITNTW ANZWM LE BTT DBAY HRHM H$ARB HAN$ HNYNQW HYSKNW HTNWKT TRA$ OE HNM QPNTW [2] R 1+3+3 ILQ$ IBYTK YZ HYSKN TRA$W 2+3 X 2+3+1 [+2 ILQ$ 3+3 I$RK FSK YMD ] HWBA TYBL VHTW 1 FKB [1 O]WYB HL ITNY

And if Jehoishm[a] hate her husband Ananiah and say to him: ‘I hate you; I will not be to you a wife,’ silver of hatred is on her head (and) her mohar will be lost. She shall place upon the balance scale and give her husband Ananiah silver, 7 shekels, [2] q(uarters), and go out from him with the rest of her money and her goods and her property, [valued (in) silver (at) 6 karsh, 2 + ]6 (= 8) [shekels], 5 h(allurs), and the rest of her goods which are written (above). He shall give her on [1] da[y] at 1 stroke and she may go to her father’s house. (TAD B3: 8: 24–8)

The AN$ o clauses in TAD B3. 8 are similar to those in TAD B2. 6 o clause as and similar objections to the understanding of the AN$ demotion in status apply. The addition of the statements ‘she shall not be to me a wife’ after the declaration of ‘hatred’ by Ananiah and ‘I will not be to you a wife,’ by Jehoishma makes clearer the intimate connection between ‘hatred’ and divorce. o TAD B3. 8. however, included two other clauses where a AN$ ‘hatred’ formula is used. One states the prohibition for both, husband and wife, to refuse conjugal rights. In both cases, the document declares that if any of them refuse what has been understood as sexual intercourse, ‘it is hatred’ (HAN$ TWK), and the ‘law of hatred’ (HAN$]IYD) applies. The other clause related to the possibility of having a second wife/husband, which makes any other undero clause except as a divorce clause impossible. The standing of the AN$ prohibition to take in another husband/wife reads thus: [IM] RB IRXA LEB HLEBH[L EM$Y]WHY HUYL$ AL IHL HAN[$ IYD ]HL IWDBEY YH HAN$ TWK DBET IHW YNNE

But Jeho[ishma] does not have right [to] acquire another husband be[sides] Anani. And if she does thus, hatred it is; they shall do to her [the law of ha]tred. (TAD B3. 8: 33–4) HL [EM$YWHY IM RB H]RXA HTNA XQL[Y HYNNE LHKY A]L FA HAN[$ ]I[YD ]HL [D]B[EY YH HAN$ TWK ]DBEY IH WTNAL

(Moreover, [Ananiah shall] n[ot be able to] take anoth[er] woman [besides Jehoishma] for himself for wifehood. If he does [thus, hatred it is. H]e [shall d]o to her [the la]w of [ha]tred.) (TAD B3. 8: 36–7)

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This clause has been explained by Szubin and Porten as ‘hatred by conduct’74 (as opposed to hatred by declaration). If Ananiah takes another wife, according to this interpretation, Jehoishma is automatically demoted to a secondary wife and the ‘hatred’ provisions detailed previously in the document would apply. One wonders why Jehoishma would accept that Ananiah’s new wife would automatically reduce her to such a status. Contrary to common opinion, polygamy was the exception rather than the rule in the Ancient Near East, but divorce and remarriage seem to have been common. The double clause in the Laws of Eshnunna ‘to release’ the woman (musˇsˇuru i.e. ‘to divorce her’) and ‘to marry another woman’ (sˇanitam ahazum) has deserved considerable attention by Roth, Westbrook,˘and Yaron.75 Roth concludes that both actions ‘are not necessarily simultaneous actions, nor is one the consequence of the other’.76 Westbrook states that ‘this is not the case of a man divorcing his wife, but the more serious offense of casting aside his first wife for the sake of another woman’,77 and Yaron focuses on the logical connection between those two actions and suggested that ‘Die Assyriologin wäre wohl am besten berufen, die Partikel -ma unter die Lupe zu nehmen, und uns zu belehren, ob der „logische Zusammenhang,“ den von Soden so kategorisch postuliert, in der Tat unvermeidlich ist.’78 The solution presented by the sequence of these actions is, however, not to be found in the aforementioned statements but in the Sitz im Leben of the documents of wifehood and the social dynamics of family life in the Ancient Near East. The family was basically an economic unit with different roles for husbands and wives, both essential for the survival of the family. Being single was not a viable economic option or a socially acceptable situation. It would have been against the economic viability of the family unit to divorce a wife without taking in another wife that would fulfil those roles in the family unit left vacant by the departure of the previous wife. The documents, therefore, reflect the standard practice that the position of ‘wife’ was not left ‘vacant’ but immediately filled by another woman. As C. J. Eyre stated for ancient Egypt, ‘there is no real alternative for a husband but to remarriage’.79 74 75 76 78

Szubin and Porten (2001), 67. Roth (1989), 12–15; Westbrook (1988), 69–79, and Yaron (1992), 92–4. 77 Roth (1989), 13. Westbrook (1988), 73. 79 Yaron (1992), 94. Eyre (2007), 223.

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The Ancient Near Eastern law collections include several provisions for situations in which, without divorce, such a second partner might or might not be allowed, including after the death of the husband or wife.80 In the few texts that envision such a possibility, the first wife retains all the privileges and it is the new wife that is relegated to a position of a secondary wife. The laws of Lipit-Ishtar establish that if a wife becomes ill and the husband marries a second wife, the ‘second wife shall support the first-ranking wife’; (LL 28) and LH 148–9 establishes that if a man marries a woman and after she becomes ill, he decides to marry a second wife, the first wife should be able to reside in her quarters and receive support for as long as she lives, but if the first wife decides to leave, her husband has to give her back her dowry. The return of the dowry in every case attested reflects the dissolution of the union and the end of the relationship. The return of the dowry as established in every one of o clauses of the Elephantine documents of wifehood point to the AN$ a similar situation: the marriage is over. If the demotion in status of Jehoishma is prompted by Ananiah marrying a second wife, the issue is how should we understand the clause when it is Jehoishma who marries a second husband. It is highly unlikely that Ananiah would remain as a demoted husband in the home while Jehoishma’s new husband adopts the ‘primary husband position’; or if Jehoishma’s behaviour implies her own demotion in status from first wife to secondary wife, it is, again, highly unlikely that she would live with her new husband as a demoted wife of Ananiah in Ananiah’s home. These, we believe, are insurmountable obstacles for Szubin and Porten’s proposal. The only o clause as a divorce clause possible solution is to understand the AN$ and that the document of wifehood establishes that in case any of the parties decide to get a second partner (husband or wife) it would imply a declaration of divorce with all the penalties associated with it. A Neo-Assyrian document that sheds some light on this clause is the fragmentary CTN II 24781 (from Nimrud, dated probably c.720– 80 Ug V, 3. RS 17.33 stipulates that if the husband takes a second wife, the children born from such a union will not have rights to the property of the first wife, and in the case of the death of the husband, the wife won’t be able to take a second husband into the house. See Miller (1980), 283. LE 59 punishes a man whose wife has born him children and who then divorces her and expels her from his house and takes another wife. 81 Postgate (1973), 229–30; quoted by Radner (1997), 160.

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705 bce). In this text, if the husband ‘takes a woman in addition to her (i.e. his wife), she may take away whatever has been acquired, (and) may go and leave’.82 As Radner points out commenting on this text, ‘Wir dürfen annehmen, daß auch eine zweite Heirat des Ehemanns ohne Zustimmung der ersten Ehefrau unter den Tatbestand des „ Hasse“ fiele,’83 which is exactly what TAD B3. 8: 36–7 declares. The Ancient Near Eastern evidence analysed in this chapter can only support the conclusion that the legal use of the metaphor of hatred and the various ‘hate’ clauses found in marriage- and adoption-related contexts can only be interpreted as a cessation of the relationship and the distantiation of the parties. The study of the internal use of the ‘hate’ clause in the documents of wifehood from Elephantine leads us to the reinforce the traditional interpretation o cannot mean anything but divorce. that AN$

REFERENCES Allen, J. P. (2003), ‘From The “Memphite Theology” ’, in W. W. Hallo and K. L. Younger Jr. (eds.), Canonical Compositions from the Biblical World (COS 1; Leiden: Brill), 21–3; Accordance electronic edn. —— (2005), The Ancient Egyptian Pyramid Texts (Atlanta: Society of Biblical Literature). Azzoni, A. (2000), ‘The Private Life of Women in Persian Egypt’ (Ph.D. diss.; Johns Hopkins University). Blau, L. (1911), Die jüdische Ehescheidung und der jüdische Scheidebrief historische Untersuchung (Strasburg: K. J. Trübner). Branson, R. D. (1976), ‘A Study of the Hebrew Term AN$ o ’ (Ph.D. diss.; Boston University). Cowley, A. E. (1923), Aramaic Papyri of the Fifth Century B.C. (Oxford: Clarendon). Epstein, J. N. (1908), ‘Notizen zu den jüdisch-aramäischen Papyri von Assuan’, JJLG 6: 359–73. Eyre, C. J. (2007), ‘The Evil Stepmother and the Rights of a Second Wife’, JEA 93: 223–43. Fitzmyer, J. A. (1971), ‘A Re-Study of an Elephantine Aramaic Marriage Contract’, in H. Goedicke (ed.), Near Eastern Studies in Honor of W. F. Albright (Baltimore: Johns Hopkins Press). 82

Postgate (1973), 230.

83

Radner (1997), 160.

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Fleishman, J. (2001), ‘Legal Sanctions Imposed on Parents in Old Babylonian Legal Sources’, JAOS 121: 93–7. Goedicke, H. (1967), Königliche Dokumente aus dem alten Reich (Wiesbaden: Harrassowitz). Goetze, A. (1956), The Laws of Eshnunna: Annual of the American Schools of Oriental Research 31 (New Haven, Conn.: ASOR). Greengus, S. ( 1969), ‘The Old Babylonian Marriage Contract’, JAOS 89: 525–32. Hannig, R. (2003), Ägyptisches Wörterbuch, i. Altes Reich und Erste Zwischenzeit (Mainz am Rhein: P. von Zabern). —— (2006), Ägyptisches Wörterbuch, ii. Mittleres Reich und Zweite Zwischenzeit (2 vols.; Mainz am Rhein: P. von Zabern), 1141–2. Junge, F. (1973), ‘Zur Fehldatierung des sog. Denkmals memphitischer Theologie oder Der Beitrag der ägyptischen Theologie zur Geistesgeschichte der Spätzeit’, MDAI.K 29: 195–204. Kraeling, E. G. (1953), The Brooklyn Museum Aramaic Papyri (New Haven: Yale University Press). Lipin´ski, E. (2004), ‘AN$ o ’, TDOT 14: 164–74. Lüddeckens, E. (1960), Ägyptische Eheverträge (Wiesbaden: Harrassowitz). Mann, A. M. (1985), ‘The Jewish Marriage Contracts from Elephantine: A Study of Text and Marriage’ (Ph.D. diss.; New York University). Martin, C. (1999), ‘A Twenty-Seventh Dynasty “Marriage Contract” from Saqqara’, in A. Leahy and J. Tait (eds.), Studies on Ancient Egypt in Honour of H. S. Smith (London: The Egypt Exploration Society), 193–9. Miller, G. I. (1980), ‘Studies in the Juridical Texts from Ugarit’, Ph.D. diss., Johns Hopkins University. Muffs, Y. (1969), ‘Studies in the Aramaic Legal Papyri from Elephantine’, Studia et documenta ad iura Orientis antiqui pertinentai 8. Leiden: Brill. Nutkowicz, H. (2007), ‘Concerning the verb s´n' in Judaeo-Aramaic Contracts from Elephantine’, JSSt 52: 211–25. Parker, B. (1954), ‘The Nimrud Tablets, 1952: Business Documents’, Iraq 16: 29–58. Pestman, P. W. (1961), Marriage and Matrimonial Property in Ancient Egypt (Leiden: Brill). Porten, B. (1968), Archives from Elephantine: The Life of an Ancient Jewish Military Colony (Berkeley: University of California Press). —— (2003), ‘Elephantine’, in R. Westbrook, A History of Ancient Near Eastern Law (Leiden: Brill), ii. 863–81. —— et al. (2011), The Elephantine Papyri in English: Three Millennia of Cross-Cultural Continuity and Change (2nd rev. edn.; Atlanta: Society of Biblical Literature).

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—— and Szubin, H. Z. (1982a),‘ “Abandoned Property” in Elephantine: A New Interpretation of Kraeling 3’, JNES 41: 123–31. —— —— (1982b), ‘Exchange of Inherited Property at Elephantine (Cowley 1)’, JAOS 102: 651–4. —— —— (1985), ‘Hereditary Leases in Aramaic Letters’, Bibliotheca Orientalis 42: 283–8. —— —— (1987a), ‘Litigants in the Elephantine Contracts: The Development of Legal Terminology’, Maarav 4: 45–67. —— —— (1987b), ‘A Dowry Addendum: Kraeling 10’, JAOS 107: 231–8. —— —— (1987c), ‘An Aramaic Deed of Bequest (Kraeling 9)’, in N. Waldman (ed.), Community and Culture: Essays in Honour of the Founding of Gratz College (Philadelphia College). Philadelphia: The College. —— —— (1995), ‘The Status of the Handmaiden Tamet: A New Interpretation of Kraeling 2 (TAD B3.3)’, Israel Law Review 29: 43–64. Postgate, J. N. (1973), The Governor’s Palace Archive (Hertford: British School of Archaeology in Iraq). —— (1976), Fifty Neo-Assyrian Legal Documents (Warminster: Aris & Phillips). Rabinowitz, J. J. (1956), Jewish Law: Its Influence on the Development of Legal Institutions (New York: Bloch), 39–47. Radner, K. (1997), Die Neuassyrischen Privatrechtsurkunden als Quelle für Mensch und Umwelt (SAAS 6; Helsinki: University of Helsinki). —— (2004), ‘Neuassyrische Texte’, in B. Janowski and G. Wilhelm (eds), TUAT, Neue Folge (Gütersloh: Gütersloher Verlaghaus), 71–88. Roth, M. (1989), Babylonian Marriage Agreements 7th–3rd Centuries B.C. (AOAT 222; Neukirchen-Vluyn: Neukirchener Verlag). —— (1997), Law Collections from Mesopotamia and Asia Minor (2nd edn.; Atlanta, Ga.: Scholars Press). Sayce, A. H. (1906), Aramaic Papyri Discovered at Assuan, with the assistance of A. E. Cowley, and with appendices by W. Spiegelberg and Seymour De Ricci (London: A. Moring). Schorr, M. (1913), Urkunden des albabylonischen Zivil- und Prozessrechts (Leipzig: J. S. Hinrichs). Shupak, N. (2003), ‘The Dispute Between A Man And His Ba (3.146)’, in William W. Hallo and K. Lawson Younger Jr. (eds.), Canonical Compositions from the Biblical World (COS 1; Leiden: Brill); Accordance electronic edn. Strudwick, N. (2005), Texts from the Pyramid Age (Atlanta: Society of Biblical Literature). Szlechter, É. (1965), ‘Effets de l’absence (volontaire) en droit assyrobabylonien’, Orientalia 34: 289–311.

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Szubin, H. Z. and Porten, B. (1982), ‘ “Ancestral Estates” in Aramaic Contracts: The Legal Significance of the Term mhh.sn’, Journal of the Royal Asiatic Society 114: 3–9. —— —— (1983), ‘Testamentary Succession at Elephantine’, BASOR 252: 35–46. —— —— (1987), ‘Royal Grants in Egypt: A New Interpretation of Driver 2’, JNES 46: 39–48. —— —— (1988), ‘A Life Estate of Usufruct: A New Interpretation of Kraeling 6’, BASOR 269: 29–45. —— —— (1992), ‘An Aramaic Joint Venture Agreement: A New Interpretation of the Bauer-Meissner Papyrus’, BASOR 288: 67–84 (with 1 fig.); in S. Allam (ed.), Grund und Boden in Altägypten (Rechtliche und sozio-ökonomische Verhältnisse. Akten des internationalen Symposions Tübingen 18.–20 Juni (Tübingen, 1994), 65–95 (with 4 figs.). —— —— (2001), ‘The Status of a Repudiated Spouse: A New Interpretation of Kraeling 7 (TAD B3.8)’, Israel Law Review 35: 46–78. Toivari-Viitala, J. (2000), Women at Deir El-Medina: A Study of the Status and Roles of the Female Inhabitants in the Workmen’s Community during the Ramesside period (Leiden: Nederlands Instituut Voor Het Nabije Oosten). Verger, A. (1965), Ricerche giuridiche sui papiri aramaici di Elefantina (Rome, Università di Roma,Centro di studi semitici, Istituto di studi del Vicino Oriente). Volterra, E. (1956), ‘Osservazione sul divorzio nei documenti aramaici’, Studi orientalistici in onore di Giorgio Levi della Vida (2 vols.; Rome: Istituto per l’Oriente), 586–600. Westbrook, R. (1982), ‘Old Babylonian Marriage Law’, Ph.D. diss., Yale University, i and ii. —— (1988), Old Babylonian Marriage Law (Horn: F. Berger). —— (ed.). (2003), A History of Ancient Near Eastern Law. (2 vols.; Leiden: Brill). Yaron, R. (1957), ‘On Divorce in Old Testament Times’, RIDA 3rd ser. 4: 117–28. —— (1957), ‘Aramaic Marriage Contracts from Elephantine’, JSSt 3: 1–39. —— (1961), Introduction to the Law of the Aramaic Papyri (Oxford: Clarendon). —— (1971), ‘The Mes.ada Bill of Divorce’, in Studi in onore di Edoardo Volterra (Milan: University of Rome), vi. 433–55. —— (1988), The Laws of Eshnuna (2nd edn.; Jerusalem: Magnes). —— (1992), ‘Zu babylonischen Eherechten’, ZSRG 109: 51–99.

6 The Aramaic Law of Sale Considered from the Papyrological and Rabbinic Evidence Andrew D. Gross

The Judaean Desert has provided a great bounty of materials for scholars of law in antiquity. Among the finds are documents composed in Greek, Hebrew, Jewish Aramaic, and Nabataean Aramaic, demonstrating the complex cultural nexus out of which they arose. This nexus, however, does not consist merely of the historical moment from which such documents emerged. Rather, the documents, composed in the 1st and 2nd centuries ce, also emerge from a centuries-old legal tradition that can be traced back to cuneiform deeds of sale from the Late Bronze Age. This chapter focuses principally on the deeds of sale from among these documents, and analyses the structure and development of the sale formulary used therein.

THE CORPORA The bulk of the documentary materials from the Judaean Desert stem from two sites along the west coast of the Dead Sea, Wadi Murabba‘at and Nah.al H . ever. The four caves excavated at Wadi Murabba‘at yielded one hundred and seventy-three inscribed items, including at least ten fragmentary deeds of sale, six written in Aramaic and four in Hebrew (see Table 6.1). A. Yardeni dates all of them to the first Jewish Revolt against Rome (66–70 ce).1 In the 1

See the dates assigned for each text in her editions in Yardeni (2000). H. Eshel (2000), 584, dates P. Mur 22, 25, 29, and 30 to the Bar Kokhba Revolt (132–5 ce), but concedes that the earlier dating is possible. Cf. also Koffmahn (1963–4b).

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Table 6.1. Conveyances discovered at Nah.al H . ever and Wadi Murabba‘at Nah.al H . ever Nabataean Aramaic Jewish Aramaic Hebrew Greek

Wadi Murabba‘at

P. Hever nab 2; P. Yadin 2, 3 P. Hever 7, 8, 8a, 9, 21, 22? a, 23; P. Yadin 7, 8, 47

P. Mur 23, 25, 26 b, 27, 28, 32 P. Mur 22, 29, 30, 31

P. Hever 64; P. Yadin 19, 21, 22

Notes: a Because of P. Hever 22’s fragmentary condition, we cannot be entirely certain about its contents. b Yardeni has determined that P. Mur 26 should be joined with P. Hever 50, a papyrus discovered by Bedouin that was thought to have come from Nah.al H . ever. She has accordingly re-edited this text as ‘XH . ev/Se 50 + Mur 26’ (Yardeni (1997), 123–9).

caves at Nah.al H . ever, over one hundred and twenty papyri (and numerous inscribed fragments) were discovered, including at least seventeen deeds of conveyance. Among these were three written in Nabataean Aramaic, ten in Jewish Aramaic, and four in Greek. These contracts, which deal with both immovables and movables, include gifts and sales. Some of them are even deeds of purchase (P. Yadin 8, 21), formulated ex latere emptoris, rather than deeds of sale, which are usually formulated ex latere venditoris.2 Papyri were first discovered at both sites by Bedouin. When these materials began circulating on the antiquities market, archaeologists began conducting systematic excavations to discover the original findspot of these texts and to see if any more were yet to be found. Wadi Murabba‘at was excavated in 1952, and all the epigraphic material from this site was published in 1961 by P. Benoit and J. T. Milik.3 A. Yardeni re-edited the Hebrew and Aramaic papyri from Wadi Murabba‘at in 2000. The findspot for most of the textual material from Nah.al H . ever was a cave with two entrances that would become known as the Cave of Letters.4 Bedouin first discovered documentary papyri

2 P. Yadin 21 and 22 record the same transaction with the former being a deed of purchase and the latter being a deed of sale. For other interpretations of P. Yadin 8, see Newman (2006) and the discussion further in this chapter on simple documents. 3 Benoit, Milik, and de Vaux (1961). Benoit published the Greek and Latin materials, while Milik published the Aramaic and Hebrew materials. 4 The cave, officially designated as Caves 5 and 6, was so named because among the papyri found there were Hebrew and Aramaic dispatches (P. Yadin 49–63) sent

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here in the early 1950s, and these texts soon began making their way onto the antiquities market in East Jerusalem and eventually into scholarly publications.5 Yardeni and H. M. Cotton published the Jewish Aramaic and Greek papyri in full in 1997.6 Yardeni’s edition of the Aramaic materials also includes a general introduction to the sale formulary used therein.7 Of the six Nabatean Aramaic papyri found by the Bedouin in the Cave of Letters, two have been published to date, one of which is a deed of sale (P. Hever nab 2).8 In 1960, Y. Yadin (re)discovered and excavated the Cave of Letters, where he found additional papyri in Greek, Hebrew, Jewish Aramaic, and Nabataean Aramaic.9 After some preliminary publications, N. Lewis published the Greek material in full in 1989, while Yardeni

from Shimon bar Kosiba (a.k.a. Shimon bar Kokhba), the leader of the Bar Kokhba Revolt. Cave 8 from Nah.al H . ever, the so-called Cave of Horror, also yielded a few texts, though none relevant to the present study (for more on these texts, see Aharoni (1962) and Tov (1990)). 5 Milik (1954, 1957), and Starcky (1954). M. Broshi and E. Qimron published editions of P. Hever 8 (1986) and P. Hever 49 (1994). The papyri found in the Cave of Letters by the Bedouin had originally been thought to have come from Wadi Seiyal (also known as Nah.al S.e’elim) and had thus been labelled ‘Se’. Once it became clear that the papyri had more likely come from a cave at Nah.al H . ever, they were relabelled ‘XH . ev/Se’ (the ‘X’ indicating that the exact cave of origin is unknown). For these papyri, the present study uses the alternative label P. Hever, following the online Checklist of Editions of Greek, Latin, Demotic and Coptic Papyri, Ostraca, and Tablets (Oates et al. (2011)). 6 Cotton and Yardeni (1997). Yardeni had first published the Aramaic materials in a 1995 Hebrew edition. In 2000, she produced a comprehensive edition of all the Hebrew and Aramaic documentary texts from the Judaean Desert, including the papyri from Nah.al H . ever and re-editions of the Murabba‘at texts (Yardeni (2000)). 7 Yardeni (1995), 8–11; (1997), 13–17. 8 These texts are designated as P. Hever nab 1–6. J. Starcky published the two fragments of P. Hever nab 1 in 1954, but Yadin later discovered another fragment of this papyrus in the cave, and all three fragments were eventually re-edited by Yardeni in 2001 and published as P. Yadin 36. Yardeni published P. Hever nab 2 in 2000 (Yardeni (2000), i. 290–2). The registration system used for these Nabataean Aramaic texts in the authoritative list of texts from the Judaean Desert in Tov (2002) (see especially pp. 109–11) can be somewhat confusing. XH . ev/Se 1–6 refer to six literary texts (written on parchment) from Nah.al H . ever, four of them copies of biblical books, while the Nabataean Aramaic papyri are registered as XH . ev/Se nab 1–6. For various reasons, neither group of texts is included in the online Checklist (Oates et al. (2008)), and so no alternative labels are available there. 9 For more details on Yadin’s excavations, see Yadin (1961), (1962), (1963), and (1971).

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and B. A. Levine published the Hebrew, Jewish Aramaic, and Nabataean Aramaic materials in full in 2002.10 Other sites near the Dead Sea have yielded documentary material from this time period. Fragments from nineteen documentary texts were alleged to have come from Cave 4 at Qumran,11 but Yardeni has shown that some, if not all, of these texts more likely originated from the Cave of Letters. Among these alleged Qumran Cave 4 texts, the most relevant here is 4Q346, a rather fragmentary deed of sale written on parchment.12 Additional fragments of almost thirty other documentary papyri were found at other sites along the western shore of the Dead Sea, including Ketef Jericho and Wadi Sdeir, though they are only of limited relevance to the present study.13

FORMAT: ‘SIMPLE’ AND ‘DOUBLE’ DOCUMENTS Most of these documents use a format known as the ‘double document’.14 In a double document, the scribe would inscribe two copies of the deed on the same papyrus or parchment, and then roll down the top of the document so as to conceal the upper copy. To prevent any tampering with the contract, the rolled-up portion would be sewn up. The witnesses would then sign their names along the knots, and as a result the names would be on the verso (or reverse side) of the document. The lower copy of the text would thus be visible, and if there were any disputes about whether its contents had been altered, the upper copy could be opened. The double document appears to go back to at least biblical times, as a similar practice is

10 Lewis (1989) and Yadin et al. (2002). Two of the Jewish Aramaic texts had been published earlier by Yardeni and J. C. Greenfield: P. Yadin 7 (Yadin, Greenfield, and Yardeni (1994)) and P. Yadin 10 (Yadin, Greenfield, and Yardeni (1996)). Following the online Checklist mentioned above, these papyri have been designated as P. Yadin (the list in Tov (2002), 104–7 uses the label 5/6H . ev, indicating that they were found in Caves 5 and 6 from Nah.al H . ever). 11 4Q342–8, 4Q351–4, and 4Q356–61. 12 Yardeni published all of these texts in Cotton and Yardeni (1997), 283–322. 13 For editions of these texts, see Charlesworth et al. (2000). 14 On double documents from the Judaean Desert, see Koffmahn (1968); Yadin (1971), 229–31 (with useful illustrations); and Lewis (1989), 6–10. On double documents in the Graeco-Roman world, see Wenger (1923), 2408–30; Benoit, Milik, and de Vaux (1961), 244–7; and Wolff (1978–2002), ii. 57–80.

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described in Jer. 32: 9–12. One can even see an earlier analogue in the enclosing of cuneiform tablets in clay envelopes, whereby the tablet would be made ‘tamper-proof’ by being ‘wrapped’ in a clay sheath that would then be inscribed with a copy of the enclosed tablet.15 Some papyri from the Judaean Desert use the ‘simple document’ format, on which only one copy of the text was inscribed with the signatures of the witnesses on the recto (or front of the papyrus) rather than on the verso.16 The simple document format will be discussed in more detail at the end of the chapter. To illustrate best the double document, let us begin with the text of P. Hever 9, a Jewish Aramaic deed of sale from the second century ce:17 RMA HNQD RB IEM$ RB BWQEY OYQYB L TN$ L IYR$EB YD YLD HRTAL VL TNBZ HND HMWY YTWERM HNA IMT IM °°K HDWHYL HRQTM YMWXT HNBZL RTY WA RYSX IH TLT IYAS IYUNX ERZ TYB HSDRP LQX HXNDM VD HRTA IPC YTRY XRA HMWRD IYNRXW HNBZ HDWHY HBREM IYNRXW HXRA IYNRXW IPC YTRY HNWPC IYNRXW VDLBQL HZX YDK RT°TAL VL QPMW LEM YD HERT HMWXTB VD HTRA IYR$E IYZWZ FSKB VL TNBZ IYRMG IYMD LBQM HNA HPSKW DWXL EB$ IYELS IWMH YD HYNMTW HDWHY UL$W Y$R OLEL IM HBCT YD LK HB DBEMLW HNBZMLW HNQML VD HNBZB YHWTRYW HNBZ IND HMWY HMYQMLW HYP$ML IYBREW IYARXA YL YTYA YD BWQEY HNAW OLELW ODQW VMDQ HRTA LE VNTY YD HLUBW IQZN RGTW RRX LK IM OLELW IND HMWY IM VYTRY HND HRTA YD IMZ LKW VDLBQL HNQA YDW YSKN IM HTML$T IERP[ ]°° RUP FLXA YL RMT HZX YDK HBR °ABN HND ARU$ VL

15

1 2 3 4 5 6 7 8 9 10 11

On clay envelopes, see Postgate (1994), 61–2; and Walker (1987), 26–7. On the differences in witnessing and signatures in double documents and simple documents, see Mishnah Bava Batra 10: 1–2; Tosefta Bava Batra 11: 1; Yardeni (1997), 11; Cotton (2003); Schiffman (2003) and (2005), 201–2. 17 Though this text is a double document, only the upper version of the text is presented here. The text and translation are adapted from Yardeni (1997), 39–42. The epigraphic sigla used in her edition have been simplified here. For more discussion, see ad loc. 16

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1 On the ten[th of . . . , year . . . of . . . ] at Ykym, Ya‘aqov[ son of ]Shim‘on son of dqnh said to 2 Yehudah k . . . [ . . . of the same plac]e: I, of my own will, on this day have sol[d] to you the place of mine that is called 3 the F[iel]d of the Orchard, [the area of sowing of ]three se’ah’s of[ whea]t. If it is less or more––that is the buyer’s. [The bou]ndaries of that place: ea[st]–– 4 the road and oth[ers; west––Yehud]ah the buyer and[ o]thers;[ south–– ]the road/s of the in[her]itors or s.pn and others; north––the inherit[ors of ]s.pn and o[thers.] 5 That place––within its bounda[ries: a gate that is] an entrance and exit for you to/for . . . as is fitting. Accordingl[y ]I have sold (it) to you for silver zuzin twen[ty-] 6 eight, whi[ch are (equal to)] se[v]en [sil‘i]n only; and the mo[n]ey I received, the full price. Forever is Yehu[dah], 7 the purchaser, entitled and empowered, and [his] he[irs with regard to] this [pur]chase to acquire, and to sell, and to do with it whatever you desire from this day 8 [and forever. And I, Ya‘aqov, and (all) that] I [ow]n, are re[spon]sible and a guaran[t]ee for cleansing and establishing the place before you and be[fo]re 9 your he[i]rs, f[rom this day and forever, from any dispute and challenge, damage and annulment th[at may come upon you ]regarding [this ]place 10 . . . [the fulfill]ment of the payment (will be) from my pro[perty and (from) whatever I will acq]uire accordingly. And any time that you s[ay to me, I will exchange] 11 for you [this ]d[ocument . . . ] . . . as is fitting.

STRUCTURE OF THE FORMULARY The following outline shows the main elements of the sale formulary used in P. Hever 9 and in the other Jewish Aramaic deeds of sale from the Judaean Desert: Date and Place (line 1) Operative Section

• • • •

Declaration of Sale (lines 1–3) Property Description (lines 3–5) Price Clause (lines 5–6) Acknowledgment of Receipt (line 6)

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Investiture Clause (lines 6–8) Contingency Clauses

• • •

Warranty Clause (lines 8–10) (Reaffirmation of Investiture Clause) Document Exchange (lines 10–11)

Signatures and Witnesses (lines 26–32) The overall scheme of the deed is framed by the date and place of the deed’s execution at the beginning and the signatures and witnessing at the end. Within this frame comes the core of the deed, consisting of the operative section, the investiture clause, and the contingency clauses, all of which are formulated as a first-person declaration by the seller addressed to the purchaser.

Date and place Aramaic contracts generally begin with the date and place of the transaction’s execution.18 In contrast, cuneiform contracts from the core regions of Mesopotamia usually place this information at the end of the document.19 One can find precursors to the Aramaic format, however, in Late Bronze Age Akkadian deeds from northern and western Syria, whose formulary begins with the phrase isˇtu u¯mi annîm ‘From this day . . ’20 While not precisely a date formula, this nonetheless reflected local, West Semitic scribal practices that would eventually be adopted by Aramaic scribes. The date formula itself usually varied with the particular political situation under which the documents were drafted in that they often included both a local dating system and that of a larger imperial power. For example, P. Yadin 7, produced in Roman-controlled Nabataea (formally known as Provincia Arabia), uses a double date formula to accommodate Roman dating conventions as well as local 18

Note, however, that in about half the Wadi ed-Daliyeh papyri, the sale formulary mirrors Neo-Babylonian practice by placing the date formula at the end of the text rather than the beginning (Gropp (2001), 31–2, 35). 19 Steinkeller (1989), 111–12. 20 Deeds of conveyance from Ugarit consistently begin with this formula (Haase (1967), 197; Kienast (1979), 434), as do several contracts from Alalakh, including one deed of sale, AT 74 (Niedorf (2008), 139–40). Certain types of deeds from Emar and Ekalte (e.g. testaments and adoptions) also open with this formula.

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ones. P. Hever 9, on the other hand, was produced during the Bar Kokhba revolt, which sought to throw off Roman imperial power, and thus omits any reference to the Roman system for obvious ideological and political reasons.21

Operative section Declaration of sale The operative section begins with the declaration of sale, which identifies the parties to the transaction as well as the property being transferred. As noted above, Aramaic deeds of conveyance are usually framed as first-person declarations by the seller (or alienor) addressed to the purchaser (or alienee).22 The declaration of sale quoted above in P. Hever 9: 1–3 is typical of all Jewish Aramaic deeds: HDWHYL RMA HNQD IEM RB BWQEY YD YLD HRTAL VL TNBZ HND HMWY YTWERM HNA IMT IM . . . HSDRP LQX HRQTM

Seller said to Purchaser,23 ‘I, of my own will, on this day have sol[d] to you the place of mine that is called the F[iel]d of the Orchard.’

Technically, one could limit the ‘declaration’ to just the actual words attributed to the seller and thereby group the phrase, ‘Seller said to Purchaser’, with the contract’s broader framing elements (such as the date, witnesses, etc.). Either way, this phrase serves the substantive role of identifying the parties to the transaction. The orientation of Nabataean Aramaic deeds of sale is somewhat different. While still formulated as a declaration by the seller, the declaration of sale refers to the purchaser in the third person rather than addressing him directly: Â LP HNA YNM Â LP IBZ WH AMWY

(date and place), on that day purchaser bought from me, I, seller (object of sale). 21 For discussions about dating formulae in later Jewish law, see Schiffman (2005), 188–9. 22 One exception is the Wadi ed-Daliyeh sale formulary, which adopts a thirdperson, objective style for its operative section. 23 For simplicity’s sake, I have omitted the names of the principals here, including the information about the purchaser’s place of residence.

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Furthermore, this declaration is formulated ex latere emptoris, which is common among cuneiform deeds of sale, but not among Aramaic ones, which are usually ex latere venditoris. Thus, in terms of its orientation and perspective, the Nabataean Aramaic declaration of sale is an unusual hybrid formulated as a first-person declaration in the voice of the seller, but one that emphasizes the actions of the purchaser rather than those of the seller.

Property description For conveyances of real estate, the description of the property usually has two parts: (1) a boundary description listing each of the neighboring lots, and (2) an itemization of the property’s constituent parts.24 This itemization could also include various rights attached to the property such as irrigation rights or the rights of egress and ingress mentioned above in P. Hever 9: 5. Similar itemizations are found in the property descriptions of Neo-Assyrian cuneiform deeds of sale.25 Not all Aramaic deeds of sale include such an itemization. Rabbinic law states that when one sells a piece of real estate, certain parts of the property are assumed to be included in the sale, while others are not. Mishnah Bava Batra chapter 4 addresses this question in more detail by considering various examples of real estate transfers. In each case, however, the Mishnah states that one can obviate this distinction by describing the property as including WKWTB$ HM LKW AWH (it and all that is within it). Similar language can be found in P. Hever 8a, a Jewish Aramaic deed of sale, whose property description includes the phrase HB YD LWK (all that is in it).26

Price clause The price clause, which follows the description of the property, partially restates the declaration of sale and specifies the sale price, as in P. Hever 9: 5–6: 24

On boundary descriptions, see Porten (2000) and Yadin et al. (2002), 7–8. On these Neo-Assyrian property descriptions, see Postgate (1976), 23–4. 26 P. Hever 8a: 7. On property descriptions in these papyri and in Rabbinic law, see Schiffman (2005), 191–5. 25

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Accordingl[y] I have sold (it) to you for silver zuzin, twen[ty-]eight whi[ch are (equal to)] se[v]en [sil‘i]n only)

The sale price is stated in two different denominations to avoid confusion as markets often used multiple currencies. This practice of stating multiple denominations is known both in the Elephantine papyri and in Rabbinic law.27

Acknowledgment of receipt It was important not only to specify the sale price, but also to affirm that the seller had received it in full. Cuneiform sale formularies, which do not always include receipt clauses, accomplish this through what are known as completion clauses. These clauses affirm either that the purchaser is free of his obligations or that the seller is satisfied with the purchaser’s performance of these obligations (or some combination of the two). While earlier Aramaic corpora such as the Elephantine papyri and the Wadi ed-Daliyeh papyri include completion clauses, the Jewish Aramaic sale formulary does not. In P. Hever 9, the acknowledgment of receipt is stated in line 6: IYRMG IYMD LBQM HNA HPSKW

and the mo[n]ey I received, (the) full price.

The two features that distinguish this clause are the use of the form LBQM and what I refer to as the ‘full price’ element, IYRMG IYMD. The use of the participle LBQM here rather than a perfect form of the verb LBQ has earlier antecedents in the fourth-century bce Wadi ed-Daliyeh papyri. The term LBQM can ultimately be traced back to Neo-Babylonian legal terminology, as it appears to translate the Akkadian term mahir.28 The use of the ˘participial form LBQM here has generated some discussion and thus requires further comment. The point of this clause is to affirm that the seller has been paid in full––i.e. that the payment has been completed. One would not expect, however, a 27

Mishnah Bava Batra 10: 2 and Tosefta Bava Batra 11: 2. For a fuller discussion, see Schiffman (2005), 196. 28 Gropp (2001), 23.

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completed action to be expressed by a participle, but rather by a finite form such as TLBQ.29 One solution is to parse LBQM not as an active participle, but as a passive one. Passive/reflexive forms of LBQ are attested in similar contexts elsewhere in Aramaic as well as in Mishnaic Hebrew.30 This reflexive nuance may explain the use of the passive participle here. In both the Akkadian and the Aramaic formularies, the receipt clause does not simply describe the seller’s receiving of the sale price; it affirms the completion of this action. Rather than merely expressing the idea that the seller has received the sale price, this clause affirms that the seller is ‘in receipt of’ the sale price. This was the aspectual nuance that the Aramaic scribes saw in the active stative form mahir,31 which they felt was more accurately rendered with the participle˘ LBQM. The full price element affirms that the sale price has been paid in full, rather than merely a portion thereof.32 It appears rather ubiquitously in cuneiform sale formularies going back to at least the third millennium bce.33 The Aramaic version of the full price 29

Broshi and Qimron (1986), 210; Gropp (2001), 48–9. Gropp notes another interpretation that parses LBQM as an active participle expressing narrative past tense as in the Aramaic of Daniel. The receipt clause in line 9 of P. Dura 28, a Syriac deed of sale, uses the finite form TLBQ (on P. Dura 28, see Goldstein (1966)). 30 In P. Yadin 27: 11, in the Aramaic subscription to a Greek document of receipt, a woman acknowledges receipt of goods using the passive/reflexive ethpa  el form HYLBQTA (the expected form here would actually be TLBQTA, corresponding to the aorist form απχον that occurs in the Greek portion of this document; for further discussion, see Yadin and Greenfield (1989), 148). Conversely, in P. Yadin 17: 40, in the Aramaic subscription to a Greek deed of deposit, we find the active verbal form LBQ (Yadin and Greenfield (1989), 141). For Mishnaic Hebrew, note the receipt clause cited in Mishnah Ketubbot 5: 1 which uses the passive/reflexive nitpa  el conjugation: HNM VMM YTLBQTN$ WL TBTWK AYHW ‘And she writes for him, “I have received from you a mina.” ’ For more details, see Broshi and Qimron (1986), 210; and Yadin and Greenfield (1989), 148. One could object that a passive verb would not govern a direct object (in this case, FSK ‘silver’), an objection raised by J. Dusˇek (2007), 136–9, and A. Koller (2009), 5–6. One would not, however, expect the above-cited reflexive forms to govern a direct object either. For more on this topic, see Bar-Asher (1983), 91–3, 108. 31 On this particular nuance of the form mahir, see Rowton (1962), 239–40, 243–5; Muffs (1969), 108; Huehnergard (1987), ˘228–9; and Jursa (2005), 46–7. Huehnergard (2005), 394, notes that the active stative form (which he refers to as the ‘transitive parsa¯ku construction’) is most common in verbs denoting ‘holding grasping, or seizing’, such as leqû and maha¯ru. 32 In some contexts, it indicates that the˘full value has been paid and that the land has not been sold due to economic duress. For more on this topic, see Westbrook (1985). 33 For an overview of this element, see Gross (2008), 48–63.

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element, IYRMG IYMD, is first attested in the Wadi ed-Daliyeh papyri, apparently calqued from the Akkadian expression sˇ¯ımu¯ gamru¯tu,34 and later becomes a regular element in the sale formularies of both Jewish Aramaic and Nabataean Aramaic deeds of sale.35 Nonetheless, this element has a somewhat complicated history within the Aramaic tradition, as it only appears in the Aramaic corpora from the Judaean Desert. How one accounts for this limited distribution depends on how one understands the relationship between the Judaean Desert corpora specifically and the relationship between all the Aramaic legal corpora in general. If one assumes that all these corpora––including both the Judaean Desert corpora and the corpora from outside the Judaean Desert (such as the Elephantine papyri)––drew upon a common Aramaic (or West Semitic) tradition, then the full price element was not a part of this common tradition, and only entered the Aramaic realm at a relatively later date sometime during the later Neo-Babylonian period. Determining the path through which this element entered the Judaean Desert corpora presents a different set of questions, as each corpus utilizes this element in a slightly different way. The Wadi ed-Daliyeh sale formulary incorporates the full price element into its equivalent of the price clause, which is actually just a part of the statement of sale,36 while the Jewish Aramaic and Nabataean Aramaic sale formularies incorporate it into the receipt clause. If one assumes the latter two formularies to be genetically related to the former, these differences may result from scribal efforts to simplify the formulary’s quittance language. The Wadi ed-Daliyeh formulary includes quittance language within both its statement of sale (the full price element) and its receipt clause (the term LBQM), whereas the Jewish Aramaic and Nabataean Aramaic formularies place both of these quittance elements within the receipt clause. Thus, the

34 Both IRYMG IYMD and Akkadian sˇ¯ımu¯ are plurale tantum expressions. For more on the plural form sˇ¯ımu¯, see Muffs (1969), 200; and Gropp (1990), 183 n. 70 and (2001), 22 n. 31. 35 Cf. also the phrase RMGM YMD in the Nabataean tomb inscription CIS ii 199 (Healey (1993), 68, 77) and ALM FSK in Biblical Hebrew (Gen. 23: 9; 1 Chr. 21: 22, 24). For more on IYMD in the Nabataean tomb inscriptions, see Greenfield (1974), 70–1. 36 As the Wadi ed-Daliyeh papyri are objectively formulated, it is more appropriate to refer to its statement of sale rather than its declaration of sale.

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scribes may have felt it easier to have all the quittance language within the receipt clause alone and altered the formulary accordingly. On the other hand, another way to account for these differences is to conjecture that the Jewish and Nabataean scribes drew upon a parallel tradition––rather than the Wadi ed-Daliyeh sale formulary or a close relative thereof––in which the full price element had always been part of the receipt clause. The Neo-Babylonian sale formulary for immovables also incorporates the full price element into its receipt clause and, therefore, could have been a source for such a tradition.37 Either way, the simplification of the quittance language indicates a certain trajectory whereby the task of completing the transaction and transferring ownership to the purchaser was accomplished less by the receipt clause and more by the investiture clause.

Investiture clause The investiture clause confers the full rights of ownership on the new owner, affirming that these rights exist in perpetuity and that he will have full power to transfer those rights to whomever he chooses.38 This clause has no direct antecedent in cuneiform deeds of sale and appears to be an innovation of the Aramaic legal tradition, or at least adapted from West Semitic legal traditions.39 The investiture clause of the Jewish Aramaic papyri generally resembles its counterparts in other Aramaic corpora in structure, though with some variations in terminology. With regard to structure, the investiture clause consists of four elements: (1) an opening declaration; (2) language stating that the alienee’s ownership rights will be held in perpetuity; (3) a ‘heritability phrase’, i.e. a reference to the alienee’s children or heirs indicating that these rights of 37

The Neo-Babylonian sale formulary for immovables includes the full price element in both its statement of sale and its receipt clause. For more details, see Jursa (2005), 19–22. 38 The label ‘investiture clause’ was coined by Muffs (1969), 24. Others’ labels are based on the clause’s terminology rather than its function. Thus, some refer to it as the ‘sˇallit. clause’ because of the key Aramaic term UYL$ that often appears in this clause. Others refer to it as the kyrieia clause from the Greek term κυριεα (which corresponds to Aramaic UYL$) that appears in later Greek versions of the clause. 39 The legal formularies in some Late Bronze Age cuneiform documents may preserve some antecedents to this clause. For further discussion, see Gross (2008), 94–104.

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ownership will devolve to them; and (4) a list of verbs delineating the rights of ownership. For this last element, the list of verbs refers either to rights of development (for conveyances of real estate) or rights of alienation. Within their contingency clauses, some Aramaic deeds of sale also include a ‘reaffirmation of investiture’ clause, which basically restates the terms of the investiture clause. For the most part, Jewish Aramaic deeds of sale do not include the reaffirmation of investiture clause, while Nabataean Aramaic ones do. The investiture clause in P. Hever 9: 6–8 is typical for Jewish Aramaic deeds of sale, though with some unusual features that will be discussed further: HDWHY UL$W Y$R OLEL IM HBCT YD LK HB DBEMLW HNBZMLW HNQML VD HNBZB YHWTRYW HNBZ OLELW IND HMWY

(Forever is Yehu[dah], the purchaser, entitled and empowered, and [his] he[irs with regard to] this [pur]chase to acquire, and to sell, and to do with it whatever you desire from this day [and forever].)

Table 6.2 includes both the Nabataean Aramaic investiture and reaffirmation clauses. Because of the fragmentary nature of the Nabataean materials, the clauses cited are a composite of the extant texts. Let us begin with the first element, the opening declaration. In most Aramaic corpora, the investiture clause defines the new owner’s relationship to the property with the term UYL$. The Jewish Aramaic clause, however, uses the verb Y$R, though there does not appear to be any difference in meaning between these two verbs.40 P. Hever 9 further complicates matters by using both terms in its investiture clause.41 40 This use of the verb Y$R, meaning ‘to have authority’, goes back at least to Old Aramaic, as in the Sefire inscription (Fitzmyer (1995), 151). Among other Jewish Aramaic papyri from the Judaean Desert, the verb Y$R also appears in P. Mur 19, a 1st-century ce divorce document, in which the husband grants his wife the right to remarry in language similar to that of an investiture clause: YK$PNB AY$R YTA YD IYBCT YD YDWHY RBG LWKL TNA YHMLW VHML (that you are allowed to go by yourself and be the wife of any Jewish man whom you desire). P. Yadin 42, a 2nd-century ce lease agreement, uses comparable language to describe the rights of the lessors should the lessee default on his rent payments: VYLE HNM WNBZMLW HNM VHTLW QPML IY$R AWHN (we shall be within our rights to depart and ‘walk away’ from it, and to sell (any part) of it at you(r expense)). For further discussion of this verb, see Greenfield (1974), 79–82. 41 P. Yadin 7 and 47b also use both terms.

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Table 6.2. Nabataean Aramaic investiture and reaffirmation clauses Nabataean Aramaic Investiture Clausea

Nabataean Aramaic Reaffirmation Clauseb

LXNMLW IHRMLW HNBZLW ANQML IYMLEL YD LK HLA AYNBZB DBEMLW ITNMLW ARU$ BYTK YD OWY IM HND ÂLP HBCY OLE DEW HND

(Forever (empowered) to acquire, to sell, to pledge, to bequeath, and to give, and to do with these purchases all that he desires is this purchaser, from the day on which this deed is written and forever.)

IM YHWNBN HND ÂLP A . . . MW YKDW UYL$W ISXY HND ARU$ YD IRXA $NAW YHWRXA HB YDK HLA AYNYBZB HYMLM IM OLE DE

(And empowered and clean and . . . is this purchaser, and his sons after him, or anyone else who may be in possession of [thi]s de[ed] by ri[ght of possess]ion, regarding these purchases, as (provided) in it, forever.)

Notes: a P. Hever 2: 13–15; P. Yadin 2: 9–10, 30–2; 3: 10–11, 33–5. b P. Hever 2: 23–4; P. Yadin 2: 16, 40–1; 3: 18–19, 46–7.

The Nabataean evidence makes it even more difficult to discern any patterns in the opening declaration’s terminology. To begin with, the Nabataean Aramaic investiture clause notably lacks any opening declaration. The reaffirmation clause, however, does include an opening declaration, using the term UYL$. This would be mostly unremarkable were it not for the evidence from Nabataean tomb inscriptions, which contain a surprising amount of legal language, including a clause quite similar to the investiture clause, as in this example from CIS ii 223: 2–3:42 HND ARPKB WRGWA BTKY WA IK$MY WA IBZY YD $WNA Y$R ALW

(And no-one has the right to se[ll] it or give it in pledge or write for this tomb a lease.)

Both here and in other Nabataean tomb inscriptions, this clause uses the term Y$R, and in this respect, aligns with the Jewish Aramaic sale formulary rather than the Nabataean one.43 Beyond the interchangeability of terminology exemplified in all these data, one can also see in the Nabataean reaffirmation clause

42 Unlike the investiture clause, the purpose of this clause is to restrict ownership rights rather than to confer them. For more on this inscription (and on Nabataean tomb inscriptions in general), see Healey (1993), 187–8. 43 For more on the use of this verb in Nabataean tomb inscriptions, see Healey (1993), 88–9.

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an inclination common throughout the Nabataean sale formulary to heap up legal terminology. Thus, rather than just using UYL$, its opening declaration adds on two additional verbs, namely, YKD and another that cannot be identified. Returning to the Jewish Aramaic papyri, another unusual feature of its opening declaration is its tendency to refer to the purchaser in the third person. As noted above, however, the document as a whole––both here and in Aramaic deeds in general––is framed as a first-person declaration, with the seller addressing the purchaser in the second person. This unusual feature is not limited to the opening declaration and, therefore, will be dealt with further in more detail. Both the Nabataean investiture and reaffirmation clauses also refer to the purchaser in the third person, but this is not unusual. As described above, despite being formulated as a first-person declaration, the seller in the Nabataean Aramaic sale formulary refers to the purchaser throughout in the third person (with the exception of the contingency clauses). The next element, the perpetuity language, can be traced in one form or another to cuneiform deeds of sale from Bronze Age Syria.44 Many Akkadian legal documents from Syrian sites such as Alalakh, Emar, and Ugarit, begin with the phrase isˇtu u¯mi annîm (from this day) (and in Ugaritic lym hnd ). Deeds of conveyance from Ugarit, both in Akkadian and Ugaritic, state that the new owner holds the title to the property forever (Akkadian adi da¯rı¯ti; Ugaritic ‘d ‘lm).45 This language would eventually be combined in the Aramaic investiture clause, as in OLE DEW HNZ AMWY IM from the Elephantine papyri and OLELW HND AMWY IM in the Jewish Aramaic example cited above in P. Hever 9: 7–8. The Jewish Aramaic and the Nabataean Aramaic papyri use perpetuity language both at the beginning and the end of the investiture clause. Thus, almost invariably, the Jewish Aramaic investiture clause begins with the term OLEL and ends with the phrase OLELW HND AMWY IM (with slight variations).46 44

For more details, see the discussion in Márquez Rowe (2006), 274–81. For attestations of the Akkadian phrase, see the references in Márquez Rowe (2006), 251–3, 260–1. For the Ugaritic phrase, see KTU 3. 2: 12, 17; 3. 5: 14, 20. 46 Two possible exceptions are P. Hever 8a and 23. On P. Hever 8a’s unusual formulary, see the further discussion of simple documents. P. Hever 23 is quite fragmentary, preserving only part of the clause: ]HNAW HBCT YD LWK HB DBEML[ (]to do with it all that you desire. And I[). Because the next clause appears immediately to follow the verb HBCT, this would seem to be the end of the clause, with no perpetuity language to be found. 45

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The third element, the heritability phrase, also has precedents in the materials from Ugarit. Deeds of conveyance from Ugarit (both Akkadian and Ugaritic) state that the ownership rights will transfer in full to the children of the new owner.47 With respect to terminology, the investiture clause in earlier Aramaic deeds of sale, such as the Elephantine and Wadi ed-Daliyeh papyri, refers to the new owner’s RB (son), whereas the Jewish Aramaic papyri instead consistently use the term TRY (heir).48 In the Nabataean Aramaic sale formulary, the heritability phrase––like the opening declaration––is lacking from the investiture clause, but appears in the reaffirmation clause, which uses the term RB. Regarding the final element, the delineation of rights, the Jewish Aramaic papyri preserve examples relating to both rights of alienation (as in P. Hever 9) and development rights (e.g. P. Hever 8: 6: HQMEHLW RPXML (to excavate and to deepen)) and even an example that includes both (P. Hever 21: 7–8: HQMEHLW RPXML HNBZMLW HNQML AMRHLW HNBML (to excavate, to deepen, to build, to heighten, to acquire, to sell)). The most interesting feature in this corpus, however, occurs at the end, where the string of infinitives is consistently rounded off by the phrase HBCT YD LK HB DBEMLW (and to do with it all that you desire). The Elephantine papyri include a similar element: ITNT TYBC/TMXR YZ IML (to whomever you desire/ want to give (the property)),49 but the Jewish Aramaic papyri use the more general verb DBE (to do) rather than ITN (to give). Thus, according to this wording, which is used also in the Nabataean Aramaic papyri, the alienee is not merely invested with the right to alienate the property, but with the right to do anything with it that he or she desires.50 This broader description of the ownership rights has parallels in both Akkadian and Biblical Hebrew. Akkadian often pairs the term s.ibûtu (cognate with Aramaic YBC) and the verb epe¯sˇu (to do) with

47

For references and discussion, see Márquez Rowe (2006), 249–51. The Syriac slave sale P. Dura 28 also uses TRY in the heritability phrase of its investiture clause. 49 The Jewish Aramaic papyri, however, consistently use the verb YBC and not OXR. 50 Note, however, that the medieval formularies of Rav Hai Gaon use phrasing similar to that of the Elephantine papyri: YBCYD IAM LKL HNTMB BHYML (to give as a gift to whomever he desires) (Assaf (1930), 26, 27). 48

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the subsequent collocation meaning ‘to do business’.51 As this collocation dates back to the Old Babylonian period, one could see the Aramaic expression HBCT YD . . . DBEML as the result of Akkadian influence. The expression s.ibûta epe¯sˇu, however, can refer to a broad range of activities, and references specifically to the right of disposal, the meaning most relevant here, are limited to the Neo-Babylonian period.52 The Biblical Hebrew parallels suggest, according to A. Hurvitz, that this Aramaic expression was an innovation of the Persian period.53 Hurvitz argues that before the Persian period, the common idiom used in this context both in Biblical Hebrew and in Aramaic was YNYEB BWUH TW$EL (to do whatever is good in the eyes of . . . ) or the equivalent thereof.54 During the Persian period, this idiom would be replaced in Late Biblical Hebrew with the parallel expression H$E JPX R$A LK (he does whatever he pleases) and in Aramaic with the expression we see here in P. Hever 9: 7.55 Note the Hebrew parallel in the investiture clause of P. Mur 30: 23, a Hebrew deed of sale from Wadi Murabba‘at: JPXT$ LK WB TW$EL (to do with it all that you please). Let us return to the question of the unusual orientation of the Jewish Aramaic investiture clause. The orientation of the clause is discernible in three places: the opening declaration, the pronominal suffix in the heritability phrase, and the conjugation of the verb in the delineation of rights element. Because of the fragmentary condition of the papyri, not every attestation of the investiture clause has each of these elements preserved. Table 6.3 lists all the available evidence. As noted already, the opening declaration in the Jewish Aramaic papyri generally refers to the purchaser only by name. Consider, by way of contrast, the opening declaration in TAD B3. 4: 11–12, a deed of sale from Elephantine: VZ ATYBB UYL$ HYRZE RB HYNNE TNA (You, Ananiah son of Azariah, are empowered with regard to this house). 51

For more on this collocation, see Greenfield (1974), 69; (1982), 477; and Yadin et al. (2002), 102. For attestations thereof, see CAD E, pp. 218, s.v. epe¯sˇu, mng. 2c; and CAD S., pp. 169, 70, s.v. s.ibûtu , mng. 2b, 3a2´. 52 See CAD S., pp. 170–1, s.v. s.ibûtu, mng. 4. 53 Hurvitz (1982). 54 For Hebrew, cf. Josh. 9: 25; 2 Sam. 10: 12; 19: 38; and 2 Kgs. 10: 5; for Aramaic, cf. Sefire III 3 (Fitzmyer (1995), 136, 145–6). 55 Cf. Pss. 115: 3; 135: 6; Isa. 46: 10; Jonah 1: 14; and Qoh. 8: 3.

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Table 6.3. Jewish Aramaic investiture clause Opening declaration P. Hever 9 P. Hever 23 P. Yadin 47a 4Q346 P. Hever 21 P. Hever 50 + P. Mur 26 P. Yadin 7 P. Mur 30 (Hebrew)

Heritability phrase

HDWHY

N/A RZEYLA

N/A FSWHY ALE IM YD AYNBZ IYWHT XQWLH

Delineation of rights

]RYW

HBCT HBCT IWBCT HBCY

N/A N/A N/A YHWTRY IHTRY YKYTRY W$RY

N/A IWBCY IYBCT JPXT

Here, the seller addresses the purchaser both by name and by the second-person independent pronoun. Back among the Jewish Aramaic papyri, P. Hever 50 + P. Mur 26 and the Hebrew deed of sale P. Mur 30 are even less personal, referring simply to ‘the purchaser(s)’.56 The sole exception here is P. Yadin 7, whose opening declaration addresses the new owner in the second person: HUYL$W HY$R IYWHT (you shall be entitled and empowered). Looking at the pronominal suffix of the heritability phrase, in the four cases where it is preserved, P. Yadin 7 is once again the sole exception in referring to the purchaser in the second person: YKYTRY (your heirs). The other three cases, P. Hever 21, P. Hever 50 + P. Mur 26, and P. Mur 30, all use third-person pronominal suffixes (‘his/their heir(s)’). The delineation of rights element, however, complicates the picture. Only six attestations of the key verb, YBC, are preserved (along with one attestation of the Hebrew equivalent JPX). Here, the purchaser is addressed much more commonly in the second person. Only two of the six cases, P. Hever 50 + P. Mur 26 and 4Q346, refer to the purchaser in the third person, and little can be said about this latter case because the extant text from the investiture clause in 4Q346 consists of only a couple words. Thus, according to the limited amount of evidence, the investiture clause in the Jewish Aramaic papyri addresses the purchaser in the

56 The investiture clause in P. Mur 22, another Hebrew deed of sale, also refers to the purchaser as XQWLH (the purchaser) rather than by name. Unfortunately, there is little else to be determined about its formulation as only three words from this clause are preserved.

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third person at the beginning of the clause, but by the end switches to the second person. The reasons for this unusual orientation are not entirely clear. Perhaps the clause retained these features from an earlier, objectively formulated model, such as the Wadi ed-Daliyeh sale formulary. Alternatively, as these words finalize the transfer of property, the third-person formulation perhaps is meant to elevate the register of speech and thereby draw attention to the importance of their legal function. Two exceptional cases require further attention. In the first, P. Hever 50 + P. Mur 26, the orientation of the investiture clause remains third person throughout, even referring to the purchasers generically (ALE IM YD AYNBZ (the abovementioned purchasers)) rather than by name. Another unusual feature of this text is the fact that the remnants of lines 22–3 appear to preserve a reaffirmation clause. The other exceptional case is P. Yadin 7, a Jewish Aramaic deed of gift, in which the recipient is referred to in the second person throughout. This clause has a number of other unusual features, likely due to Nabataean influence, and thus is reproduced in full here (with the property description abridged).57 HY$R IYWHT YMLE TYBL VHA YDKW . . . AD ATNTM YRTAB HUYL$W WTRWMLW LXNMLW WNBZMLW ANQML BCNMLW ERZMLW ITNMLW IHRMLW DBEMLW IWHNERP EWRPMLW ANBMLW YKYNBW YTNA IYBCT YD LK IWHB OWY IM YKDY IM ISXY YD IMW YKYTRYW OLE DEW YMLE TYBL VHA YD

And when I go to my eternal home, you shall be entitled and empowered over the sites of this gift . . . to buy and to sell, and to inherit (or: and to bestow) and to bequeath, and to pledge (as security) and to grant as gift, and to sow and to plant, and to build, and to remit their payments, and to do with them all that you wish; you and your sons and your heirs, and whoever may gain possession from your hand from the day on which I will go to my eternal home and forever.

Throughout the entire clause, the recipient is addressed not in the third person as in the other Jewish Aramaic texts, but in the second person. Besides its consistent orientation, another feature that P. Yadin 7 shares with P. Hever 50 + P. Mur 26 is the inclusion of a reaffirmation clause. The presence of such a clause in P. Yadin 7 is likely due to the Nabataean influence evident elsewhere in this document, as reaffirmation clauses are a normal part of the Nabataean Aramaic sale formulary. 57

P. Yadin 7: 15–18 // 52–9 [parallel texts of double document].

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P. Yadin 7 also shares the Nabataean sale formulary’s distinctive tendency towards prolixity. For example, like P. Hever 9, its opening declaration includes both UYL$ and Y$R. The heritability phrase uses both IYNB and IYTRY and even includes another phrase referring to anyone else who might acquire ownership of this property in the future. The delineation of rights element has language concerning both alienation and development rights.58

Contingency clauses This concluding section of the contract (also referred to as the Schlußklauseln or final clauses) covers any future contingencies that may result from this transaction that the parties would need to address. The clauses most commonly included in the Judaean Desert materials are the warranty clause and the document exchange clause.

Warranty clause Even after the transaction has been completed, the seller still has the responsibility to uphold and defend the purchaser’s rights of ownership against any future challenges or contingencies. Challenges by the seller himself are barred by the no-contest clause,59 while challenges by third parties are covered by the warranty clause (also referred to as the defension clause). The warranty clause only appears in transactions where the seller (or alienor) receives consideration for the property, such as sales or barters. The Nabataean Aramaic sale formulary includes both clauses, whereas the Jewish Aramaic papyri include only the warranty clause. It is possible that the seller’s pledge of warranty was believed to apply to all challenges including those

58 Regarding development rights, the list here is fairly extensive, but this may be due to the more rural nature of the property in question. The conveyances from Elephantine and Wadi ed-Daliyeh concern houses and real estate in more urbanized areas, and therefore the right to sow and to plant were not as germane as they were for the real estate in P. Yadin 7. Rav Hai Gaon’s book of formularies contains separate conveyances for urban and for rural land, with the different types of development rights providing the salient differences between the two types. 59 Among the Elephantine papyri, non-sale conveyances (e.g. deeds of gift) also included a no-contest clause. On the no-contest clause in the Wadi ed-Daliyeh papyri, see Gropp (2001), 28, 50.

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raised by the seller himself, thus obviating the need for a separate no-contest clause.60 In general, the Aramaic warranty clause consists of three key elements, each of which represents an obligation assumed by the seller: (1) to ‘arise’ or ‘stand up’––expressed by the verb OWQ ––in order to defend the purchaser’s property rights; (2) to ‘clear’ or ‘clean’ the property of the claims against it––expressed by a variety of verbs including YKD, QRM, and YP$; and (3) to ‘give (back)’ (ITN) or ‘(re)establish’ (OYQ) the property in the possession of the purchaser. The deeds from the Judaean Desert––the Wadi ed-Daliyeh papyri, the Jewish Aramaic papyri, and the Nabatean Aramaic papyri––notably differ from other Aramaic deeds of sale in that they lack the first element. The Jewish Aramaic warranty clause diverges even further from this general pattern. Usually, the warranty clause is formulated as a conditional sentence, stating that should any third-party claims arise, the seller will perform his obligations. The Jewish Aramaic papyri, however, use a simple declaration, as can be seen in P. Hever 9: 8–10: VMDQ HRTA HMYQMLW HYP$ML IYBREW IYARXA YL YTYA YD HNAW BWQEY LE VNTY YD HLUBW IQZN RGTW RRX LK IM OLELW IND HMWY IM VYTRY ODQW VDLBQL HNQA HNAW YDW YSKN IM HTML$T IERP [ ]°° RUP HND HRTA

(And I, Ya‘aqov, and (all) that] I [ow]n, are re[spon]sible and a guaran[t]ee for cleansing and establishing the place before you and be[fo]re your he[i]rs, f[rom this day and forever, from any dispute and challenge, damage and annulment th[at may come upon you ]regarding [this ]place . . . [the fulfill]ment of the payment (will be) from my pro[perty and (from) whatever I will acq]uire accordingly.)

The seller bears two possible financial obligations here. One in the case of ‘defension’ (i.e. clearing any claims against the property he sold) and another in case of eviction (i.e. compensating the purchaser should he fail to carry out his obligation of defension). The clause states that all the seller’s property is implicitly pledged to fulfil these obligations. Before going into further detail as to what these obligations entailed, let us consider the clause’s terminology. To express the idea of defension, warranty clauses usually used a legal metaphor 60

190.

For parallels in Rabbinic law, see Quint (1990–2007), vii. 328, and Gross (2008),

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involving a verb meaning ‘to clean’. This metaphor was quite ancient in Near Eastern sale formularies, being attested in Old Assyrian deeds from Kanesh, Old Babylonian deeds from Susa, Middle Assyrian deeds from Ashur, and in deeds from Nuzi.61 In the Jewish Aramaic papyri, the attested warranty clauses express the ‘cleaning’ element with the verbs QRM and YP$. As their core meaning, both verbs connote burnishing or smoothing out the surface of something.62 In Neo-Babylonian deeds of sale, the cognate Akkadian verb murruqu occurs with the same meaning as early as the late sixth century bce. While this antedates the fourth-century bce Wadi ed-Daliyeh papyri, where this usage of Aramaic QRM is first attested, the direction of influence here is generally assumed to be from Aramaic into Akkadian. Even though the verb mara¯qu occurs in earlier dialects of Akkadian, this particular legal nuance does not occur before the Neo-Babylonian period.63 As for what ‘defension’ actually entailed, the most common scenario would probably have involved the seller’s creditors claiming a lien against the object of sale. The seller’s obligation would thus be to pay off what he owes these creditors, which is why the obligation of defension would be a financial one. This fact is reflected in Samaritan Aramaic and later Jewish Palestinian Aramaic, where the verb QRM in legal contexts simply means to ‘to pay, recompense’.64 61

For more details, see Gross (2008), 156–9. The root YP$ can also mean ‘to be/make tranquil, quiet’, but both Kutscher (1947/8), 59, and Greenfield (1992a), 469, believe this meaning developed secondarily from the notion of smoothness. B. A. Levine, on the other hand, argues that we are dealing here with two separate roots, one meaning ‘to be silent’ and the other meaning ‘to pour’. He then suggests that the term of defension under discussion here derives from the former of these roots, while the sense ‘to clean’ derives from the latter (Yadin et al. (2002), 62–5), though this explanation does not seem likely. For further discussion, see Gross (2008), 177–8. 63 See Landsberger (1930), 286–7; Krückmann (1931), 29 n. 4; Petschow (1939), 62, 67; von Soden (1966), 18; (1977), 190; and Greenfield (1982), 473. Neo-Assyrian documents use the verb mara¯qu in a legal context, albeit with an entirely different legal nuance (see Deller (1961), 37–8). 64 For Samaritan Aramaic, see Tal (2000), 487, and for Jewish Palestinian Aramaic (JPA), see Sokoloff (2002a), 332. The JPA attestations are limited to marriage contracts and discussions thereof. For more details, see Friedman (1980), i. 80–1. Friedman also suggests a different approach to the semantic development of QRM. Rather than seeing the notion of recompense or retribution as a late, secondary development, he proposes reading this particular nuance as part of this root’s original meaning, including in its earliest attestation in Aramaic, which occurs in the 8th-century bce Sefire inscription (Stele I A 29). In the Sefire inscription, however, 62

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The same appears to be true in Jewish Palestinian Aramaic for YP$ as well.65 A close parallel occurs in Jewish marriage contracts, in language known as the pledging clause.66 Should the marriage end through either divorce or the husband’s death, Rabbinic law obligates the husband or his estate to provide his wife with 200 dinars (100 if she had been previously married), a sum known as the ketubbah.67 As with the obligation of defension, the potential obligation of paying the ketubbah generates a lien on all the husband’s property. To make this obligation explicit, Mishnah Ketubbot 4: 7 stipulates that the marriage contract include the pledging clause: LK VYTBTKL IYARXA Y L TYAD OYSKN (all my goods are surety for your ketubbah). According to Tosefta Ketubbot 12: 1, the pledging clause was introduced into Jewish marriage contracts in the first century bce by Shimon ben Shetah., though there is some dispute about the authenticity of this tradition.68 The warranty clause in the Jewish Aramaic sale formulary differs from the pledging clause as cited in the Mishnah in that the former explicitly includes in its pledge any property that the husband may acquire in the future. Furthermore, Wadi Murabba‘at and Nah.al H . ever also yielded several marriage contracts,69 each of which includes this extension in its pledging clause,70 meaning that it clearly was operative even before the redaction of the Mishnah at the end of the second century ce. The significance of this distinction has been debated, though it should be noted that this extension to future acquisitions can already be found in a similar clause in a Demotic marriage contract

QRM is generally interpreted as a noun meaning ‘illness’ or ‘affliction’ (DNWSI 695), and there is nothing in the context to suggest otherwise. For more discussion, see Fitzmyer (1995), 87. 65 For more on this term, see Kutscher (1947/8), 59 and Sokoloff (2002a), 563. 66 On this clause, see Friedman 1980 i. 451–63. 67 See Mishnah Ketubbot ch. 4. 68 For recent discussion of this question and other aspects of the pledging clause, see Jackson (2003). 69 In Aramaic: P. Hever 11(?); P. Mur 20, 21; P. Yadin 10. In Greek: P. Hever 65, 69; P. Mur 115, 116; and P. Yadin 18, 37. 70 e.g. P. Mur 20: 12 and probably P. Yadin 10: 17. This clause also appears in the Greek marriage contracts from the Judaean Desert, on which see Cotton (1997), 269–70.

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from 176 bce, which would antedate the time of Shimon ben Shetah..71 As described above, the last element of the warranty clause expresses the seller’s obligation to reaffirm and re-establish the purchaser’s rights of ownership, and the Jewish Aramaic sale formulary differs here from its predecessors only in subtle ways. These subtle differences may hint at later developments in how defension was actually carried out, though the evidence is slim enough to provide little more than speculation. While earlier corpora such as the Elephantine and Wadi ed-Daliyeh papyri express this element with the verb ITN (to give), the Jewish Aramaic papyri use the verb OYQ (to affirm, establish).72 The verb ITN could imply that the property in question had been temporarily seized from the purchaser and needed to be returned to his or her physical possession, whereas the verb OWQ may not have these implications. Furthermore, while this ‘establishing’ element generally follows directly after the ‘cleansing’ element, P. Yadin 8, a Jewish Aramaic deed of sale, appears to reverse their order, suggesting that the sequence of these two elements could vary. Perhaps, then, the seller’s acts of ‘cleansing’ and ‘establishing’ are not to be seen as discrete steps but as immutable parts of a single procedure.73 Like its Jewish Aramaic counterpart, the Nabataean Aramaic sale formulary constructs its warranty clause as a declaration rather than a conditional sentence, as in this example from P. Yadin 2: 10–11: AYNBZ AD IDEYBA HNA APCA YDW I . . . AMWM ALW BBD ALW IYD AL YD QYXR HLK $WNA LK IM HLA OLE DE VYRXA IM VYNBLW VL HND SLKRA TNA VL QB$AW BYRQW

That (this transaction) not (be subject to) lawsuit, con[te]st, oa[th] . . . And (further) that I, this (same) Abi-‘adan (seller), will clear these purchases from anyone at all, distant or [nea]r, and I will free (them up to) you, you, this (same) Archelaus (purchaser), to you and to your sons after you forever. 71 For the Demotic contract, see Thompson (1934), 25 (apud Rabinowitz (1956), 41). On the lack of this extension in the Mishnaic pledging clause, see Jackson (2003), 221–2. 72 The verb OYQ should not be confused with the verb OWQ used in the ‘arising’-incourt element mentioned above. 73 Similar questions have been raised concerning the Sitz im Leben of these two elements in Neo-Babylonian cuneiform deeds of sale. Landsberger (1930), 288, regarded them merely to be a literary hendiadys, while H. Petschow (1939), 60, believed them to represent two separate legal actions on the part of the seller. See also Yaron (1958), 18.

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As noted above, of the three elements typically found in the Aramaic warranty clause (i.e. ‘arising’, ‘cleaning’, and ‘giving’), only the latter two are included here. In addition, the Nabataean clause uses distinctive terminology with the verb YPC in the ‘cleaning’ element and QB$ in the ‘giving’ element. The verb YPC continues the familiar cleaning metaphor, using here the Arabic loanword s.afawa ‘to be/ become pure’.74 The semantic development here of the verb QB$ is somewhat more opaque, as it has the Grundbedeutung ‘to abandon, leave behind’, as well as some specialized legal meanings, including ‘to divorce’ and ‘to bequeath’.75 As this sense of bequeathal is attested elsewhere in Nabataean Aramaic,76 the verb perhaps developed the further sense of establishing or assigning ownership rights to a specified individual. Another notable feature of the Nabataean Aramaic warranty clause is its subtle shift in orientation. Up to this point in the document, the seller had referred to the purchaser in the third person, but here the seller addresses him directly in the second person. A similar shift occurs in the Wadi ed-Daliyeh sale formulary, in which the operative section and investiture clause are formulated as an objective, third-person account, but then the contingency clauses take on the voice of the seller as a first-person declaration addressed to the purchaser.77 74 Lane (1863–93), 1703–4; see also Greenfield (1992b), 21, and Yadin et al. (2002), 226. This verb also appears in the Aramaic subscription to P. Yadin 20, a Greek document from the Cave of Letters (on which, see Lewis (1989), 16; and Yadin and Greenfield (1989), 145). On the Arabic influence on Nabataean Aramaic legal vocabulary, see Healey (1993), 59–63. 75 According to Sokoloff, these legal uses are calqued from Akkadian eze¯bu (2002b), 1105, s.v. QB$ mngs. 5, 8). In Jewish Babylonian Aramaic and Syriac, the verb can mean to manumit a slave (mng. 9), though the parallel would be more compelling if it were attested in a Western Aramaic dialect. The object of sale is not specifically mentioned here, though it would appear to be the object of QB$ (cf. the related usage of this verb in P. Yadin 7: 16 and the discussion in Yadin et al. (2002), 226). Syntactically, one could interpret QB$ as referring to the purchaser with VL as its direct object rather than an indirect object: ‘I will free you [i.e. from any claims]’, but in legal contexts, the verb QB$ tends to refer to property rather than its owners (cf. Sokoloff (2002b), 1104–6, s.v. QB$). In addition, by understanding QB$ as referring to the property, the structure of the clause falls more into line with what we see in the other Aramaic legal corpora. 76 See P. Yadin 7: 16, 22 and the discussion in Yadin et al. (2002), 100. This sense of bequeathal is also attested in Qumran Aramaic (see Testament of Aqhat, 4Q542 1 i 12; Puech (2001), 268) and Jewish Palestinian Aramaic (Sokoloff (2002a), 536 s.v. QB$ mng. 6). 77 For more discussion, see Gropp (2001), 19.

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Finally, the merism BYRQW QYXR ‘near or far’ is familiar from the Elephantine papyri’s no-contest clause, wherein it extends the prohibition against challenges by the seller to include any of his or her relatives or agents. By placing this phrase in the warranty clause rather than the no-contest clause, the Nabataean Aramaic sale formulary may be making a subtle distinction in how it classifies these challenges. As the Nabataean no-contest clause only mentions challenges by the seller himself,78 if the phrase BYRQW QYXR here refers to the Nabataean sale formulary probably considers challenges by any party other than the seller him- or herself, including those by the seller’s relatives and associates, to be third-party challenges.79

Reaffirmation of investiture clause As discussed above, some Aramaic sale formularies include in the contingency clauses a reaffirmation of investiture clause. This clause was a regular feature of the Nabataean Aramaic sale formulary, and its appearance in P. Yadin 7, a Jewish Aramaic deed of gift, was probably due to Nabataean influence. For more details, see the earlier discussion of the investiture clause.

Document exchange P. Hever 9: 10–11 includes a provision found in many of the Jewish Aramaic papyri from the Judaean Desert that gives the purchaser the right to exchange the deed upon request, presumably because his copy of the deed was damaged or lost. We can deduce from this the lack of a central land archive or depository, which thus necessitated the purchaser’s having a valid copy of this documentation in his or her possession.80 The very fact that the owners of these documents took care to bring these personal archives with them as they fled

78

On the Nabataean Aramaic no-contest clause, see Yadin et al. (2002), 227–8. For more on the legal import of the expression BYRQW QYXR, see Gross (2008), 182 n. 101 and references cited therein. 80 Central depositories of land records are referred to P. Yadin 16 (Lewis (1989), 65–70) and the Nabataean tomb inscription CIS ii 209: 9 (Healey (1993), 226). 79

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from the Romans into the caves of Wadi Murabba‘at and Nah.al 81 H . ever would seem to support this as well.

Signatures and witnesses All deeds conclude with the requisite signatures. First, the seller (in deeds of sale) would sign (and usually the purchaser as well). Next, the scribe and any authorizing local official would add their signatures, and finally, below that would come the witnesses.82

SIMPLE DOCUMENTS The documents discussed heretofore have all been double documents, but the Judaean Desert materials also include many simple documents as well. Many of these deal with lease transactions,83 but at least two are related to sales, P. Hever 8a and P. Yadin 8.84 P. Hever 8a even describes itself as a simple document, stating in line 14: HWGB OTXW UY$P HND ABTK (this do[cume]nt is simple and signed within). As previously noted, simple documents differ from double documents not only in being inscribed with only one copy of the text but also with regard to the format of the signatures. For double documents, the top copy is rolled up and tied shut, and the witnesses sign along the rolled-up portion of the papyrus, resulting in their signatures being on the verso. For simple documents, the witnesses sign just below the text on the recto (or as P. Hever 8a: 14 states, ‘within’). Rabbinic law further differentiates between the two formats, stating that double documents require at least three witnesses, while 81 For more on this clause, see Koffmahn (1963–4a); Yardeni (1997), 16; Yadin et al. (2002), 139–40; and Schiffman (2005), 200–1. On replacing damaged documents, cf. also Mishnah Bava Batra 10: 6. 82 On the practice of witnesses and signatures in the Judaean Desert papyri, see Yardeni (1997), 17; Cotton (1997), 141–6; (2003), 54–9; Yadin et al. (2002), 11–13; and Schiffman (2003); (2005), 201–2. 83 e.g. P. Yadin 42–6. 84 P. Yadin 9, a simple deed, may also be a deed of sale, but its poorly preserved state makes it difficult to interpret its contents (for more on this text, see Yadin et al. (2002), 268–76).

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simple documents require only two.85 We cannot, however, be sure whether this distinction was operative in the Judaean Desert papyri. In most cases, the papyri are too damaged to determine the total number of signatures. Even for papyri wherein portions of all the signatures are extant, some have five witnesses and some––including P. Hever 8a––have three.86 Note, however, that P. Yadin 8 has only two. In addition to these larger differences of format, simple documents also vary with respect to their formulary. P. Yadin 8’s formulary presents quite a few problems, the resolution of which is not helped by the papyrus’s fragmentary state. In its editio princeps, the editors interpret P. Yadin 8 as a deed of purchase formulated as an ex latere emptoris declaration by the purchaser. Line 7 of this document, however, contains language reminiscent of a warranty clause, which seems somewhat problematic as we would normally expect defension language in a declaration made by the seller, not in one made by the purchaser. H. I. Newman has suggested reinterpreting P. Yadin 8 as an ex latere venditoris deed of sale, and identifying Yehoseph son of Shim‘on (whom the editors of P. Yadin 8 identify as the purchaser) as the seller.87 Another possibility would be to interpret P. Yadin 8 as a deed of sale but still identifying Yehoseph as the purchaser. Though P. Yadin 8 is written in Jewish Aramaic, it betrays clear Nabataean Aramaic influence.88 Since the Nabataean Aramaic sale formulary is formulated as an ex latere emptoris declaration by the seller (i.e. ‘purchaser bought object of sale from me’), the same could be true of P. Yadin 8. One problem with this possibility would be if the editors are correct in reading the first signature––which is very poorly preserved––as Yehoseph’s. In a deed of sale, one would expect the top signature to belong to the seller (as ceder of right) not the purchaser.89 In P. Hever 8a’s formulary, the scribe was not particularly strict either about how he ordered the clauses or about where he placed 85

Mishnah Bava Batra 10: 2. For more details, see Yardeni (1997), 17. 87 For more details, see the discussions in Yadin et al. (2002), 109; and Newman (2006). 88 The scribe, Yoh.anan son of Makkuta’, also composed P. Yadin 6 and 9, two Nabataean Aramaic documents from Nah.al H . ever (Yadin et al. (2002), 111, 117). On the Nabataean features in this text, see Yadin et al. (2002), 26, 109, and 115. 89 The other signatories do not appear to have been parties to the transaction. See discussion in Yadin et al. (2002), 111, 117. 86

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their constituent elements. For example, the price clause precedes the property description, rather than vice versa. The receipt clause is omitted altogether, except for the full price element which winds up in the price clause. Following the investiture clause, the text inserts language depriving the purchaser of access to the seller’s adjacent courtyard (including the property’s boundary descriptions). One could interpret these as separate clauses, though the perpetuity language that usually appears at the end of the investiture clause falls after this ‘deprivation’ language.90 Though it may not ultimately matter whether we have one clause or two here, these slight differences may indicate what information the scribe may have been trying to emphasize. This raises the larger question as to why and under what circumstances scribes would have produced a simple deed instead of a double deed.91 Despite their fragmentary condition, the Judaean Desert documentary papyri provide a fascinating window on the continuity and diversity of cultures in the Eastern Mediterranean during Late Antiquity. At one level, the Aramaic tradition displays its own inner diversity with the Jewish and Nabataean scribal traditions bringing their own variations on Aramaic common law. At another level, the Aramaic tradition bridges numerous traditions from the ancient world antiquity, from Mesopotamia and Late Bronze Syria at one end to the Graeco-Roman and Rabbinic cultures at the other.

ABBREVIATIONS AT CAD CHANE CIS DJD

Alalakh Text Chicago Assyrian Dictionary (see Gelb et al. 1956–2010). Culture and History of the Ancient Near East Corpus Inscriptionum Semiticarum Discoveries in the Judaean Desert (of Jordan)

90 Note, however, that P. Yadin 47b, a double document, also inserts boundary descriptions into its investiture clause. For more discussion of this text, see Yadin et al. (2002), 156–68; and Gross (2008), 132–3. 91 According to Babylonian Talmud Bava Batra 160b, double deeds were first required for divorce documents to prevent hasty divorce (as double deeds are more difficult to prepare than simple ones). This requirement was then extended to all types of documents.

The Aramaic Law of Sale DNWSI HdO IEJ JJS JNES KTU P. Dura P. Hever P. Mur P. Yadin

RB RdQ TAD XH . ev/Se ZA

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Dictionary of the North-west Semitic Inscriptions (see Hoftijzer and Jongeling 1995). Handbuch der Orientalistik Israel Exploration Journal Journal of Jewish Studies Journal of Near Eastern Studies Keilalphabetischen Texte aus Ugarit (see Dietrich, Loretz, and Sanmartín 1995). Parchment and papyri from Dura-Europos (see Welles et al. 1959). Papyri discovered at Nah.al H . ever before Yigael Yadin’s excavations (see Cotton and Yardeni 1997). Papyri from Wadi Murabba‘at (see Benoit, Milik, and de Vaux 1961; and Yardeni 2000). Papyri from Nah.al H . ever discovered by Yigael Yadin (for Greek papyri, see Lewis (1989); for Hebrew and Aramaic papyri, see Yadin et al. (2002)). Revue Biblique Revue de Qumrân Textbook of Aramaic Documents from Ancient Egypt (see Porten and Yardeni 1986–99). Papyri from Nah.al H . ever previously thought to have come from Wadi Seiyal (also designated as P. Hever). Zeitschrift für Assyriologie

REFERENCES Aharoni, Y. (1962), ‘Expedition B––The Cave of Horror’, IEJ 12: 186–99. Assaf, S. (1930), The Book of Shetaroth (Formulary) of R. Hai Gaon (Hebrew). Supplement to Tarbiz I. 3 (Jerusalem: Azriel). Bar-Asher, M. (1983), (IW$AR RWRYB) HN$MH L$ IMPWAQ DY-BTK L$ IDQNL RPWSH IYB OYANTH IW$LB TWXK$N, in Moshe Bar-Asher et al. (eds.), Hebrew Language Studies Presented to Zeev Ben-H . ayyim (Jerusalem: Magnes). Benoit, P., Milik, J. T., and de Vaux, R. (1961), Les Grottes de Murabba‘ât, (DJD 2; Oxford: Clarendon). Broshi, M. and Qimron, E. (1986), ‘A House Sale Deed from Kefar Baru from the Time of Bar Kokhba’, IEJ 36: 201–14. —— (1994), ‘A Hebrew I.O.U. Note from the Second Year of the Bar Kokhba Revolt’, JJS 45: 286–94. Charlesworth, J., et al. (2000), Miscellaneous Texts from the Judaean Desert (DJD 38; Oxford: Clarendon).

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Cotton, H. M. (2003), ‘ “Diplomatics” or External Aspects of the Legal Documents from the Judaean Desert: Prolegomena’, in Catherine Hezser (ed.), Rabbinic Law in Its Roman and Near Eastern Context (TSAJ 97; Tübingen: Mohr-Siebeck), 49–61. —— (1997), ‘Greek Documentary Texts’, in Cotton and Yardeni, 133–279. —— and Yardeni, A. (1997), Aramaic, Hebrew and Greek Documentary Texts from Nah.al H . ever and Other Sites (DJD 27; Oxford: Clarendon). Deller, K.-H. (1961), ‘Zur Terminologie neuassyrischer Urkunden’, WZKM 57: 173–96. Dietrich, M., Loretz, O., and Sanmartín, J. (1995), The Cuneiform Alphabetic Texts: From Ugarit, Ras Ibn Hani and Other Places (KTU) (2nd edn.; Abhandlungen zur Literatur Alt-Syrien-Palästinas und Mesopotamiens 8; Münster: Ugarit-Verlag). Dusˇek, J. (2007), Les Manuscrits araméens du Wadi Daliyeh et la Samarie vers 450–332 av. J.-C. (CHANE 30; Leiden: Brill). Eshel, H. (2000), ‘Murabba‘at, Wadi: Written Material’, in L. H. Schiffman and J. C. Vanderkam (eds.), Encyclopedia of the Dead Sea Scrolls (New York: Oxford University Press), 89–124. Fitzmyer, J. A. (1995), The Aramaic Inscriptions of Sefire. Revised edn. (BibOr 19/A; Rome: Editrice Pontificio Istituto Biblico). Friedman, M. A. (1980), Jewish Marriage in Palestine: A Cairo Geniza Study (2 vols.; Tel-Aviv: The Jewish Theological Seminary of America). Gelb, I. J., et al. (1956–2010), The Assyrian Dictionary of the Oriental Institute of the University of Chicago (Chicago: Oriental Institute; Glückstadt: J. J. Augustin). Goldstein, J. A. (1966), ‘The Syriac Bill of Sale from Dura-Europos’, JNES 25: 1–16. Greenfield, J. C. (1974), ‘Studies in the Legal Terminology in Nabataean Funerary Inscriptions’, (Hebrew), in E. Y. Kutscher et al., Henokh Yalon Memorial Volume (Jerusalem: Kiryat Sefer), 64–83. —— (1982), ‘Babylonian–Aramaic Relationships’, in Hans-Jörg Nissen and Johannes Renger, Mesopotamien und seine Nachbarn: XXI Rencontre Assyriologique Internationale Berlin, 3. bis 7. Juli 1978 (Berlin: Dietrich Reimer), ii. 471–82. —— (1992a), ‘The “Defension Clause” in Some Documents from Nah.al H . ever and Nah.al S.e’elim’, RdQ 15: 467–71. —— (1992b), ‘Some Arabic Loanwords in the Aramaic and Nabatean Texts from Nah.al H . ever’, Jerusalem Studies in Arabic and Islam 15: 10–21. Gropp, D. (1990), ‘The Language of the Samaria Papyri: A Preliminary Study’, Maarav 5–6: 169–87. —— (2001), Wadi Daliyeh II: The Samaria Papyri from Wadi Daliyeh (DJD 28; Oxford: Clarendon).

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Gross, A. D. (2008), Continuity and Innovation in the Aramaic Legal Tradition (JSJ.S 128; Leiden: Brill). Haase, R. (1967), ‘Anmerkungen zum ugaritischen Immobilienkauf’, ZA 58: 196–210. Healey, J. F. (1993), The Nabataean Tomb Inscriptions of Mada’in Salih (JSSt Suppl. 1; Oxford: Oxford University Press). Hoftijzer, J., and Jongeling, K. (1995), Dictionary of the North-West Semitic Inscriptions (2 vols., HdO 21; Leiden; New York: E. J. Brill). Huehnergard, J. (1987), ‘ “Stative”, Predicative Form, Pseudo-Verb’, JNES 46: 215–32. —— (2005), A Grammar of Akkadian. (2nd edn.; HSS 45; Winona Lake, Ind.: Eisenbrauns). Hurvitz, A. (1982), ‘The History of a Legal Formula’, VT 32: 257–67. Jackson, B. S. (2003), ‘Problems in the Development of the Ketubah Payment: The Shimon ben Shetah Tradition’, in Catherine Hezser (ed.), Rabbinic Law in Its Roman and Near Eastern Context (TSAJ 97; Tübingen: Mohr-Siebeck), 199–225. Jursa, M. (2005), Neo-Babylonian Legal and Administrative Documents: Typology, Contents and Archives (Guides to the Mesopotamian Textual Record 1; Münster: Ugarit-Verlag). Kienast, B. (1979), ‘Rechtsurkunden in ugaritischer Sprache’, UF 11: 432–52. Koffmahn, E. (1963–4a), ‘Die Restitutionsklausel in den aramäischen Vertragsurkunden von Murabba‘at’, RdQ 4: 421–7. —— (1963–4b), ‘Zur Datierung der aramäisch/hebräischen Vertragsurkunden von Murabba‘at’, WZKM 59/60: 119–36. —— (1968), Die Doppelurkunden aus der Wüste Juda: Recht und Praxis der jüdischen Papyri des 1. und 2. Jahrhunderts n. Chr. samt Übertragung der Texte und deutscher Übersetzung (STDJ 5; Leiden: Brill). Koller, A. (2009), Review of Dusˇek 2007. RBL; . Krückmann, O. (1931), Babylonische Rechts- und Verwaltungsurkunden aus der Zeit Alexanders und der Diadochen (Weimar: Hof-Buchdruckerei). Kutscher, E. Y. (1947/8), ‘Concerning the Terminology of Legal Documents in the Talmud and Geonic Literature’, parts 2–3 (Hebrew), Tarbiz 19: 53–59, 125–8 (Repr. in id. (1977), Hebrew and Aramaic Studies (Hebrew), Jerusalem: Magnes; Leiden: Brill, 420–30). Landsberger, B. (1930), ‘Bemerkungen zu San Nicolò und Ungnad, Neubabylonische Rechts- und Verwaltungsurkunden, Bd. I 1.2.’, ZA 39: 277–94. Lane, E. W. (1863–93), An Arabic-English Lexicon (8 vols.; Edinburgh: Williams & Norgate). Lewis, N. (1989), The Documents from the Bar Kokhba Period in the Cave of Letters––Greek Papyri (Judean Desert Studies 2; Jerusalem: Israel

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Exploration Society, The Hebrew University of Jerusalem, The Shrine of the Book). Márquez Rowe, I. (2006), The Royal Deeds of Ugarit: A Study of Ancient Near Eastern Diplomatics (AOAT 335; Münster: Ugarit-Verlag). Milik, J. T. (1954), ‘Un contrat juif de l’an 134 après J.-C.’, RB 61: 182–90. —— (1957), ‘Deux documents inédits du desert de Juda’, Biblica 38: 245–68. Muffs, Y. (1969), Studies in the Aramaic Legal Papyri from Elephantine (SDIO 8; Leiden: Brill; repr. with Prolegomenon by Baruch A. Levine; HdO 66; Leiden: Brill, 2003). Newman, H. I. (2006), ‘P. Yadin 8: A Correction’, JJS 57: 330–5. Niedorf, C. (2008), Die mittelbabylonischen Rechtsurkunden aus Alalah ˘ (Schicht IV) (AOAT 352; Münster: Ugarit-Verlag). Oates, J. F., et al. (2011), Checklist of Editions of Greek, Latin, Demotic and Coptic Papyri, Ostraca, and Tablets; , accessed January 2013). Petschow, H. (1939), Die neubabylonischen Kaufformulare (LRWS 118; Leipzig: Theodor Weicher). Porten, B. (2000), ‘Boundary Descriptions in the Bible and in Conveyances from Egypt and the Judean Desert’, in Lawrence H. Schiffman, Emanuel Tov and James C. VanderKam (2000) (eds.), The Dead Sea Scrolls Fifty Years After Their Discovery: Proceedings of the Jerusalem Congress, July 20–25, 1997 (Jerusalem: Israel Exploration Society, The Shrine of the Book, Israel Museum), 852–61. Porten, B. and Yardeni, A. (1986–99), Textbook of Aramaic Documents from Ancient Egypt (Jerusalem: The Hebrew University, Department of the History of the Jewish People). Postgate, J. N. (1976), Fifty Neo-Assyrian Legal Documents (Warminster: Aris & Phillips). —— (1994), Early Mesopotamia: Society and Economy at the Dawn of History (London: Routledge). Puech, É. (2001), Qumrân Grotte 4.XXII: Textes Araméens, premiere partie 4Q529–549 (DJD 31; Oxford: Clarendon). Quint, E. B. (1990–2007), A Restatement of Rabbinic Civil Law (11 vols.; Northvale, NJ: J. Aronson). Rabinowitz, J. J. (1956), Jewish Law: Its Influence on the Development of Legal Institutions (New York: Bloch). Rowton, M. B. (1962), ‘The Use of the Permansive in Classic Babylonian’, JNES 21: 233–303. Schiffman, L. H. (2003), ‘Witnesses and Signatures in the Hebrew and Aramaic Documents from the Bar Kokhba Caves’, in Lawrence H. Schiffman (ed.), Semitic Papyrology in Context: A Climate of Creativity.

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Papers from a New York University Conference Marking the Retirement of Baruch A. Levine (CHANE 14; Leiden: Brill), 165–86. —— (2005), ‘Reflections of the Deeds of Sale from the Judaean Desert in Light of Rabbinic Literature’, in Ranon Katzoff and David Schaps (eds.), Law in the Documents of the Judaean Desert (JSJ.S 96; Leiden: Brill). von Soden, W. (1966), ‘Aramäische Wörter in neuassyrischen und neuund spätbabylonischen Texten. Ein Vorbericht I (agâ-*mu¯sˇ)’, Or. NS 35: 1–20. —— (1977), ‘Aramäische Wörter in neuassyrischen und neu- und spätbabylonischen Texten. Ein Vorbericht III’, Or. NS 46: 183–97. Sokoloff, M. (2002a), A Dictionary of Jewish Palestinian Aramaic of the Byzantine Period (2nd edn.; Dictionaries of Talmud, Midrash, and Targum 2; Ramat-Gan, Israel: Bar Ilan University Press; Baltimore: Johns Hopkins University Press). —— (2002b), A Dictionary of Jewish Babylonian Aramaic of the Talmudic and Geonic Periods (2nd edn.; Dictionaries of Talmud, Midrash, and Targum 3; Ramat-Gan, Israel: Bar Ilan University Press; Baltimore: Johns Hopkins University Press). Starcky, J. (1954), ‘Un contrat nabatéen sur papyrus’, RB 61: 161–81. Steinkeller, P. (1989), Sale Documents of the Ur-III-Period (FAOS 17; Stuttgart: Franz Steiner). Tal, A. (2000), A Dictionary of Samaritan Aramaic (Leiden: Brill). Thompson, H. (1934), A Family Archive from Siut from Papyri in the British Museum, Including an Account of a Trial Before the Laocritae in the year B.C. 170 (Oxford: Oxford University Press). Tov, E. (1990), The Greek Minor Prophets Scroll from Nah.al H . ever (8H . evXIIgr) (DJD 8; Oxford: Clarendon). —— (2002), The Texts from the Judaean Desert: Indices and an Introduction to the Discoveries in the Judaean Desert Series (DJD 39; Oxford: Clarendon). Walker, C. B. F. (1987), Cuneiform (Reading the Past 3; Berkeley, Calif.: University of California Press; London: British Museum). Welles, C. B., Fink, R. O., and Gilliam, J. F. (1959), The Excavations at Dura-Europos, Final Report V, Part I: The Parchments and Papyri (New Haven: Yale University Press). Wenger, L. (1923), ‘Signum’ (Paulys Real-Encyclopädie der Classischen Altertumswissenschaft. Neue Bearbeitung. Begonnen von Georg Wissowa. Zweite Reihe (R–Z) Zweiter Band; Stuttgart: J. B. Metzlersche), 2361–455. Westbrook, R. (1985), ‘The Price Factor in the Redemption of Land’, RIDA 32: 97–127 (repr. in Property and the Family in Biblical Law (1991); Sheffield: JSOT), 90–117.

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Wolff, H. J. (1978–2002), Das Recht der Griechischen Papyri Ägyptens in der Zeit der Ptolemaeer und des Prinzipats (2 vols.; HAW; 10. Abteilung, Rechtsgeschichte des Altertums; 5. Teil 1–2; Munich: C. H. Beck). Yadin, Y. (1961), ‘Expedition D’, IEJ 11: 36–52. —— (1962), ‘Expedition D––The Cave of the Letters’, IEJ 12: 227–57. —— (1963), The Finds from the Bar Kokhba Period in the Cave of Letters (Judean Desert Studies 1; Jerusalem: Israel Exploration Society). —— (1971), Bar-Kokhba: The Rediscovery of the Legendary Hero of the Second Jewish Revolt against Rome (New York: Random House). —— and Greenfield, J. C. (1989), ‘Aramaic and Nabatean Signatures and Subscriptions’, in Lewis (1989), 135–49. —— —— and Yardeni, A. (1994), ‘Babatha’s Ketubba’, IEJ 44: 75–101. —— —— (1996), ‘A Deed of Gift in Aramaic Found in Nah.al H . ever: Papyrus Yadin 7’ (Hebrew), in David Ussishkin et al. (eds.), Yosef Aviram Volume (ErIs 25; Jerusalem: Israel Exploration Society), 383–403. —— —— —— and Levine, B. A. (2002), The Documents from the Bar Kokhba Period in the Cave of Letters––Hebrew, Aramaic and NabateanAramaic Papyri (Judean Desert Studies 3; Jerusalem: Israel Exploration Society, The Hebrew University of Jerusalem, The Shrine of the Book). Yardeni, A. (1995), ‘Nah.al S.e’elim’ Documents (Judean Desert Studies; Be’er Sheva: Ben-Gurion University of the Negev Press; Jerusalem: Israel Exploration Society). —— (1997), ‘Aramaic and Hebrew Documentary Texts’, in Hannah M. Cotton and Ada Yardeni (1997), 9–129. —— (2000), Textbook of Aramaic, Hebrew and Nabataean Texts for the Judaean Desert (2 vols.; Jerusalem: Hebrew University, Ben-Zion Dinur Center for Research in Jewish History). —— (2001), ‘The Decipherment and Restoration of Legal Texts from the Judaean Desert: A Reexamination of “Papyrus Starcky” (“P. Yadin” 36)’, SCI 20: 121–37. Yaron, R. (1958), ‘On Defension Clauses of Some Oriental Deeds of Sale and Lease from Mesopotamia and Egypt’, BiOr 15: 15–22.

7 Fines and Curses: Law and Religion among the Nabataeans and their Neighbours John F. Healey

A. NABATAEAN LAW Nabataean Aramaic has been reasonably well understood for more than a hundred years and the number of published inscriptions exceeds 5,000.1 Although much has been written on the Nabataeans, little attention has been given to law. No law codes have survived (if they existed) and there are no Nabataean legal decrees found written on walls in public spaces. In this we might note a contrast with the situation in Palmyra with its complex Tax Tariff 2 and other texts discussed by Milik3 and PAT 0991, and less dramatic but no less specific local decrees at Hatra.4 As with so many aspects of Nabataean society, it is the Greek authors who give us some direct comments on how Nabataeans dealt with legal matters. Athenodorus, reported by Strabo (Geography 16. 4. 21), was aware of legal goings-on at Petra. What he says implies that there was a fully operational legal system, though the comments are reported in a context of wonder at the strange ways of exotic foreigners. What is remarkable to Strabo is the fact that there is a normal legal system, but that the Nabataeans themselves avoid Research on the subject of this chapter was supported by a grant from the UK Arts and Humanities Research Council. 1 The following sigla are used for numbered inscriptions: PAT = Hillers and Cussini (1996); H = Healey (1993); TAD = Porten and Yardeni (1986–93). 2 PAT 0259. Detailed treatment in Healey (2009), no. 37. 3 4 Milik (1972), 283–322. Kaizer (2006).

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getting involved in legal disputes––evidently they preferred resolution of disputes through the arbitration and advice of a senior family or community member. Those familiar with dispute resolution in Saudi Arabia and the Gulf even today can easily imagine how this might have worked. Still, all this is secondhand. The only direct glimpse of Nabataean legal tradition until quite recently came from the tomb inscriptions, mostly from the Nabataean city of H . egra at Mada¯’in S.a¯lih. in Saudi Arabia. These are relatively long for tomb inscriptions of this time and region, sometimes extending to about fifteen lines of text. They contain the kind of information which is commonplace in tomb inscriptions over a wide area. To name the obvious features, there are (1) the names of persons to be buried in the tomb (with brief genealogy) and (2) curses against anyone disturbing the arrangements of the tomb. The combination of these two features in tomb inscriptions is widespread. André Parrot’s Malédictions et violations de tombes of 1939 surveyed the whole field from ancient Sumer to Greece. An example of a H . egra tomb inscription is H 36, dated 31/2 ce: This is the tomb which H . alafu son of Qosnatan made for himself and for Su  aydu, his son, and his brothers, whatever male children may be born to this H . alafu, and for their sons and their descendants by hereditary title for ever. And his descendants may be buried in this tomb: the said Su  aydu and Manu  at and S.anaku and Ribamat and Umayyat and Salimat, daughters of the said H . alafu. And none at all of Su  aydu and his brothers, males, and their sons and their descendants has the right to sell this tomb or write a deed of gift or anything else for anyone at all, except if one of them writes for his wife or for his daughters or for a father-in-law or for a son-in-law a document for burial only. And anyone who does other than this will be liable for a fine to Dushara the god of our lord in the sum of five hundred sela  s, H . aretite, and to our lord similarly, according to the copy of this deposited in the temple of Qaysha. In the month of Nı¯sa¯n, the fortieth year of H . aretat, King of the Nabataeans, lover of his people. Ru ¯¯ma and  Abd  obodat, the masons.5

There are some other aspects of these tombs and their texts which are worthy of note. (1) The texts do not simply deal with an immediate burial. Indeed this was to be expected since the texts are almost all inscribed on the façades of extremely elaborate tombs 5

Healey (1993), 226–31, and (2009), no. 8.

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carved out of hillsides and could not have been produced ad hoc when someone died; they must have existed independently of an individual death. (2) The tombs were of a size and elaboration of design that largely precludes the idea that they belonged to and were for the burial of a specific individual; they are often designed for multiple burial by a family. (3) In the texts a date is normally given, but not the date of death or burial, rather the date of making or acquiring the tomb. (4) There are detailed dispositions as to who may and may not, in the future, be buried in the tomb. (5) There are lists of forbidden actions, which include actions such as mortgaging the tomb or leasing it to a third party. (6) Fines are imposed on anyone who would break any of the specified provisions. The fines are payable to religious or similar authorities and to the king or one of his officials. These fines are a very peculiar feature so far as the Semitic world is concerned. There is one example of this from Palmyra (PAT 2760: 2), but the best parallels are with the fifth century bce Greek and Lycian inscriptions on Lycian tombs in southern Turkey.6 These details suggest that the inscriptions are really legal in character. If this is not already clear from the details just given, it may be confirmed by two other specific features of the texts. First there is clear influence of legal language on the formulation of the texts. A good example is the phrase used for transfer of ownership into someone’s possession so that: y/t  bd bh kl dy y/ts.b ‘he/she can do with it anything he/she desires’ (H 27: 4), a formula which is found repeatedly in property conveyances in the Aramaic legal tradition.7 And secondly, the definitive proof that the tomb texts are legal in character lies in the fact that in the inscription quoted above (H 36: 9) there is explicit reference to the fact that a copy of the text of the inscription (nish.ta¯, ‘official record’) is kept in a particular legal archive in the city. There is a bit of difficulty in understanding whether this archive, called the be¯t qaysˇa¯ or qays´a¯, is connected with a temple. It is either ‘the Temple of [the god] Qaysha’ or ‘the Measuring House’.8 In either case, the text shows that there was another version of the tomb inscription, presumably on papyrus, which was kept in what was in effect a kind of Land Registry. For the theme of this chapter, it would be particularly attractive to establish 6 7

See Healey (1993), 47–8, with references. See e.g. Rabinowitz (1956), 124–41.

8

Healey (1993), 119–20.

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that the Land Registry was connected with a particular Nabataean deity. The evidence is not clear enough on this point, though fortunately we have other evidence of such a connection in that one of the Greek texts of the Babatha archive, dated 124 ce, refers to the legal role of the temple of Aphrodite in Petra where documents were available for inspection.9 We are by then in the Roman period, post-106 ce, but Petra was still an important legal centre.10 There is also evidence in other late Aramaic legal texts of duplicate copies with one copy of a document kept in an archive. One of the early Syriac legal parchments, dated 243 ce, refers to the fact that a copy of the text in question, a normal slave-sale, is to be kept in the city archives of Edessa.11 In Palmyrene inscriptions there is reference to the byt ’rk’, be¯t ’arke¯ ‘public records office’.12 It is clear, then, that the tomb inscriptions are legal in character. In fact they fall into three basic legal types: foundation documents, ownership documents, and deeds of gift or cession. This is not the place to go into the details.13 But it is to be noted here that the tomb inscriptions are summaries rather than the full original texts of the legal transactions involved.14 We can see this from what is missing from the texts. (1) There are no witness signatures, essential to all normal contracts, even cessions and gifts.15 (2) There is no reference to defension, i.e. the willingness of the main person involved, usually the vendor or donor of the property, to stand up in court to defend the right of the new owner if necessary, as there frequently is in other Aramaic property conveyances. This would be expected at least in the case of cessions and gifts.16 We can assume that such details would have been found in the full legal document in question. Also missing, though less straightforward is (3) any mention of boundaries or locations of plots. Arguably this would not be so necessary for the tombs, as it certainly is in a normal document related to immovable property, since the inscription is actually on the property in question. But if there was a papyrus document in the 9

Lewis (1989), no. 12: 2, 6. See further in this chapter and Healey (1993), 119–20 and (2001), 136–7. 11 Drijvers and Healey (1999), P1: 19 (’rkywn). 12 PAT 2759: 3; 2760: 2. Cf. Milik (1972), 227. 13 For more, see Healey (forthcoming). 14 As noted already by Gawlikowski (1975/6), 38–9. 15 See e.g. Elephantine TAD B2.1; B2.2; B2.8, etc.; Judaean Desert p.Yadin 7 and 9(?). 16 Again TAD B2.2 and p.Yadin 7 and 9. 10

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archives, that document surely must have mentioned locations and boundaries. My conviction on this is borne out by the physical situation of the tombs at H . egra and Petra: they are often carved in rows on rock-faces in such a way that identification of a particular tomb is a complex process. For the modern researcher it has demanded systematic numbering by scholars such as Brünnow and Domaszewski.17 There is also (4) only the most indirect reference to the price, which is, of course, an essential element in conveyances, i.e. sales of property. It must, however, be conceded that none of the tomb inscriptions constitutes a sale as such, so that the absence of a price is not as significant as it at first appears. It was thus clear from this older evidence from inscriptions on stone that there was a fully elaborated legal system in operation in Nabataea. Strabo says so and the tomb texts imply it. But this appreciation of the situation was dramatically carried further by discoveries and publications of papyri in the post-1950 period. The first Nabataean papyrus text to come to light was published in 1954 by J. Starcky. It is in a sad state and extremely difficult to piece together. Fortunately some further fragments and insights from papyri published later enabled Ada Yardeni to re-edit the text.18 It is dated between 58 and 68 ce, but the legal situation is that someone called El  a¯za¯r redeems property seized as the result of his father and uncle having failed to fulfil the conditions of an earlier agreement. The creditor, Isimalik, had issued a writ of seizure and he had also sold off part of the complicated property. Now El  a¯za¯r, the heir of his father and uncle, exercises his right to reclaim what is left of the property, adjustment probably being made for parts already sold o ff. The document is of the ‘double’ type, with an ‘upper’ summary followed by the full lower text. It turned out that this isolated Starcky papyrus, originally supposed to have come from Wa¯dı¯ Seiya¯l, had become separated from a much bigger cache discovered later. These later texts were found in 1961 in the so-called ‘Cave of Letters’ in Nah.al H . ever on the west side of the Dead Sea and famous for the Babatha Archive. From its first discovery this archive attracted intense attention. It is particularly interesting in the context of the Second Jewish Revolt of 132–5 ce and for the fact that Babatha was Jewish and the archive contained inter alia her ketubbah or marriage-contract. Very little 17

Brünnow and von Domaszewski (1904–5).

18

Yardeni (2001).

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attention was given, however, to the fact that in the Babatha Archive were several Nabataean legal papyri. They were in the archive because Babatha had originally lived, and her family had owned property, inside the Nabataean Kingdom, near Zoar at the southern end of the Dead Sea. The only scholar who had access to the material who showed much interest in the Nabataean documents was the late Jonas Greenfield.19 This lack of interest was compounded by the fact that the Babatha Archive took a long time to publish: the Greek texts were published in 1989,20 the Semitic texts (Hebrew, Jewish Aramaic, and Nabataean) not until 2002.21 For the first time in 2002 we had available several more or less complete and more or less intelligible Nabataean legal papyri. There are others which are less substantial and a few which for various reasons have not yet been published. The total number of separate Nabataean papyrus and parchment documents is now over twenty, including a few non-legal items.22 We can illustrate the material from p.Yadin 2, a Deed of Sale for a Date-Palm Grove in Mah.o ¯¯z ‘Eglatayin dated 97 ce: On the third of Kisle¯w in the year twenty-eight of Rabel the king, king of the Nabataeans, who has revived and saved his people, and during the life of ‘Obodat son of Rabel the king, king of the Nabataeans, who has revived and saved his people, and of Gamilat and Hagaru his sisters, princesses of the Nabataeans, children of Maliku the king, king of the Nabataeans, son of H ¯¯z ‘Eglatayin, on . aretat, king of the Nabataeans, lover of his people, in Mah.o that day Archelaos son of ‘Abd‘ama¯nu son of . . . , the strategos, purchased from me, me Abı¯‘adan daughter of Aftah. son of Manigares, a grove of datepalms in Galgala which is in Mah.o ¯¯z ‘Eglatayin, including the irrigation channels and its watering rights as appropriate . . . Archelaos from the settlement (?) in Hadrı¯ta (?) . . . (4) And these are its boundaries: to the east the road and to the west the houses of Tah.a daughter of ‘Abdh.aretat and to the south the land of our lord Rabel the king, king of the Nabataeans, who has revived and saved his people, and to the north the marshland. (5) The said grove, all of it, in all its boundaries and everything in it which belongs to the said Abı¯‘adan, by inheritance and by permission, and boundary and share and valid document and firm writ and portion and . . . and boundary, hidden and manifest and public (?). And the 19 21

20 e.g. Greenfield (1991) and (1992). Lewis (1989). 22 Yadin et al. (2002). Listed in Healey (2004).

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(9)

(10)

(13)

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date-palms and fruit trees and every type of tree and its wet and dry timber, open land such as is in it and irrigation rights and water . . . and partnership rights and inheritance rights and . . . and courtyards inside every place and anything, small or large, which is appropriate for him regarding these purchases––sunshine and shadow, the said Archelaos has purchased for the sum of one hundred and twelve sela‘s exactly. The whole of this sum, the price of these purchases, has reached me, me Abı¯‘adan, fixed price, full, mature, absolute price for ever, to possess or to sell or to pledge or to bequeath or to give as a gift or to do with these purchases whatever he wishes, the said Archelaos, from the day this document was written and for ever, without suit or contest or oath . . . And (it is agreed that) I, the said Abı¯‘adan, will clear these purchases with respect to anyone at all, distant or near, and I will free them for you, you the said Archelaos, for you and your children after you for ever. And similarly clean and . . . are you, the said Archelaos, with regard to me, me the said Abı¯‘adan, from all I might claim and might be claimed in my name against you regarding these purchases, in the form of houses and courtyards and clearance and stipulation and payment et cetera which might still be claimed regarding . . . and agreement in accordance with exchanges and profits . . . purchases and clearance according to the customary law of purchases and clearance which is written, for ever.

In accordance with this the said Abı¯‘adan apportioned for this grove the portion of our lord, the renting-tax, for the year similarly, in it ten se‘ahs, until there is a new binding agreement and this grove is counted in the territory of the said Archelaos. (14) And if I, the said Abı¯‘adan, . . . or cause a change from this without authority, I shall be liable to you, you the said Archelaos, . . . (for) the whole price of these purchases and for everything that I might claim or might be claimed in my name against you with regard to them. And to our lord Rabel the king similarly. And a case will be invalid without authority. And authorized and free of liability and obligation is the said Archelaos and his children after him and anyone else who has possession of this document by right of possession (?) regarding these purchases in accordance with what is in it for ever. (17) And they have not waited for any (further) witness: they have signed: . . . son of Zaydu . . . his handwriting . . . his handwriting ‘Azu ¯¯r son of ‘Awtu, the scribe: his (own) handwriting.23

23

Yadin et al. (2002), 205–31; Healey (2009), no. 11.

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This is a straightforward sale document with: (a) details on boundaries (in a long tradition going back to Elephantine) (line 4); (b) use of legal merisms (otherwise meaningless lists meant to imply comprehensiveness) (e.g. 5, 9); (c) use of objective language in the central declaration of purchase and receipt of the price (8); (d ) an investiture clause enabling the purchaser ‘to do with these purchases whatever he wishes’ (as we have seen in the tomb inscriptions) (9); (e) clearance and defension formulae (10); ( f ) distribution of tax liability (13); (g) financial penalty for reneging on the contract, including a fine to be paid to the king, as well as to the offended party (compare double fines in the tomb inscriptions) (14). The specifics are, perhaps, less important than the overall impact of the material, which shows that the Nabataeans followed the Aramaic customary law tradition which is known from the nonNabataean texts in the same archive, from the Samaria Papyri and from the Elephantine Papyri. This Aramaic tradition of legal documents is influenced by Assyrian and Neo-Babylonian habits, but nonetheless it is very well established. In the Roman period it undergoes some changes, but it continues into early Syriac legal documents: there are three well preserved texts from the 240s ce.24 To return to the theme of ‘Law and Religion’, it has to be admitted that the new papyri as outlined suggest there was no connection between commercial law and religion. This is, perhaps, as one would expect. And the same is true, in my view, of the Jewish commercial documents in the Aramaic legal tradition: there is nothing Jewish about them apart from the names of the principals. In this sphere of commercial law Jews were indistinguishable from gentiles. The language of law was a koiné. I will return to this later in discussing the major recent study by Oudshoorn.25 There is, however, one detail of the Babatha archive which does suggest some sort of connection between law and religion, the fact already noted that one of the Greek texts refers to the legal role of the temple of Aphrodite in Petra where documents were available for inspection.26 Babatha had to deal with the court there in a dispute over guardianship of her son.

24 25 26

For a survey see Healey (2005a). Oudshoorn (2007). Lewis (1989), no. 12: 2, 6, dated 124 ce.

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B. LAW AND RELIGION: THE TOMB INSCRIPTIONS Despite the fact that there is little overt connection made between law and religion, there are some religious aspects of the tomb inscriptions. As already noted, not only were fines imposed on transgressors, but also curses of the gods, especially Dushara, the main Nabataean god. Thus there are religious as well as financial sanctions against any infringement of the restrictions attached to the tomb. The curses in tomb texts are, of course, religious and we have a lot of evidence of tomb-curses from the ancient Near East and even within Aramaic tradition.27 Normally curses and fines are separate sanctions, but the Nabataean tomb inscriptions bring the two punishments together. Parrot already noted the fact that these Nabataean inscriptions are exceptional in this respect, but his interpretation of the phenomenon was that the texts brought together Semitic and Greek elements. Rather, it seems to me that what is happening here, as almost nowhere else in the Middle East, is that it is religion and law that are being brought together to reinforce each other, a meeting of Arabian curses with Greek or Roman-style legal emphasis on fines. The formula of the curses which appears in these inscriptions, usually l‘n dwsˇr’ ‘let Dushara curse (the offender)’ (H 1: 4; 2: 4; 8: 5; 11: 6; 16: 3; 19:8) (or nominally l‘nt dwsˇr’ ‘the curse of Dushara . . .’ [H 11: 8; 31: 8]), is distinctly Arabian. The grammatical idiom (precative perfect) is an Arabism28 and the technical terms for ‘curse’, both verb and noun, are lexical Arabisms, common in the Quran, with God as the one who curses.29 Also, of course, Dushara himself is in some sense Arabian.30 The curses thus appear to be another distinctively Arabian element in the Nabataean tradition.31 Another aspect of these Nabataean curse-formulae also suggests that they lie outside the West Semitic curse tradition. In the Bible and other West Semitic texts (e.g. Phoenician and earlier Aramaic) gods 27

Parrot (1939). See Wright (1896–8), ii. 3A; Fischer (2002), §182. 29 e.g. la‘natu ‘lla¯hi ‘ala¯ ’l-ka¯firı¯na in Quran 2: 89; for all occurrences see ‘Abd al-Ba¯qı¯ (1945), 649–50. 30 Healey (2001), 85–107. 31 On curses: Gevirtz (1959) and (1961); Brichto (1963); Hillers (1964). 28

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impose punishments on evildoers, but it is extremely rare for the idea to be expressed in terms of the god cursing the evildoer. For example, in the Hebrew Bible there are no curses of the type ‘May the Lord curse you!’, as far as I can discover.32 Even an implication of this is rare (Gen. 8: 21; 12: 3; Deut. 21: 23). Instead the normal formula is: ‘Cursed you will be!’ (with the verb in the passive and with no deity mentioned). This contrasts with Mesopotamia, where such formulae as ‘May Marduk curse you!’ are quite common. There is a detailed account of the Mesopotamian evidence by Hillers.33 Frequently the Mesopotamian curses of this type are found on kudurru monuments (i.e. boundary-markers). As Wiseman noted: ‘It was customary to protect public monuments . . . which recorded private property and rights, with many such imprecatory clauses.’34 This protection of property is the role the curses have in the Nabataean inscriptions and the curse-formula used is similar to that of Mesopotamia. Sometimes there is also the invocation of a religious principle or law (see further discussion below) of inviolability subscribed to by the Nabataeans and the Shalamians (H 1, 8, 19). The Shalamians are another ‘tribal’ group, several times associated with the Nabataeans. This inviolability principle is referred to as the h.lyqt h.rm nbt.w wsˇlmw ‘the traditional law/custom of sanctity of the Nabataeans and Shalamians’ (H 1: 3; 8: 9; and 19: 2, where we find h.lyqt h.rm’ dy mh.rm ldwsˇr’ bnbt.w wsˇlmw ‘the traditional law of sanctity of what is sacred to Dushara among the Nabataeans and Shalamian’). A different kind of religious involvement in laws governing a tomb may be implied by the inscription of the Turkma¯niyyah tomb at Petra. I leave this for discussion elsewhere.35 Suffice it to note here that this text presents us with some specific problems, especially the fact that it does not name an owner and is placed specifically under the protection of Dushara and the other gods, as enshrined in the ‘documents of consecration’ (sˇt.ry h.rmyn/h.rmy’) (line 4). My view is that it was owned by the Temple of Dushara, under the control of something a bit like the ’awqa¯f, being held in trust under the protection of Dushara, possibly for the benefit and shared usage of temple personnel, who would be covered in each case by a document allowing burial, the ‘authorization for burial’ (tn’ mqbr) referred to in the inscription (4). 32 34

See recently Aitken (2007). Wiseman (1958), 27.

35

33 Hillers (1964), 12–18, citing Wiseman. Healey (forthcoming).

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C. LAW AND RELIGION: THE WRITING ON THE WALL In leaving the tomb inscriptions, we may note the sole example in Nabataean of a legal inscription inscribed on a wall and prescribing a religious law. The inscription in question falls into the same category as the Hatran temple law inscriptions, the famous inscription in the Jerusalem temple and some rather fragmentary religious legal inscriptions from Palmyra.36 I am referring to the badly damaged text from the Temple of the Winged Lions at Petra dated 26/7 ce.37 It refers to regulations governing the conduct of priests attached to the temple: Whatever he receives of silver or gold or offerings or any provisions, or of silver coin or bronze coin (to . . . half . . . ) and to the priests the other half with the foodstuffs, as they were before the said person, so that they will be divided . . . (has cause) against him that he has done other than all that is written above, he will pay whatever will be found against him . . . On the ¯ b in the year thirty-seven of H fourth day of A . aretat, king of the Nabataeans, lover of his people. And . . . 38

We should not make too much of this, given the state that it is in, but it is clear that (1) it refers to rules governing tithes of some sort and (2) it was written up in public (or at least where temple personnel could see it), rather like some of the Hatran legal inscriptions.39

D. IN DEFENCE OF NABATAEAN LAW Having attempted over several years to excavate some elements of Nabataean law from the epigraphic debris,40 I read Jacobine Oudshoorn’s book on the law of the Judaean Desert papyri41 with a feeling that some of the newly published Nabataean legal texts, if not Nabataean law itself, were in danger of being buried again. Oudshoorn is not entirely to blame in this regard: her focus is on Jewish law in the Babatha and Salome Komaise archives, with a programmatic agenda of (1) disproving the simple connection between 36 38 40

37 Healey (2005b). Hammond et al. (1986); Jones (1989). 39 Healey (2009), no. 5. Kaizer (2006). 41 Healey (1993), (2005a), and (forthcoming). Oudshoorn (2007).

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language used and legal system followed (63–92) and (2) of identifying in the texts written for Jews specifically Jewish features, linked to later known Jewish law (e.g. 95 on p.Yadin 3: specification of watering-rights so as not to infringe the Sabbath, and 102 on p.Yadin 6: specifying a method of ploughing which does not infringe Deut. 22: 10). During her own lifetime Babatha engaged in legal disputes in the Roman court at Petra. She also preserved documents written in the period of the Roman Province in Greek and in relation to these particular documents Oudshoorn puts forward the view that Babatha and the other Jews involved in the transactions were largely operating not under Roman law, but under local Jewish law that could be defended in the Roman courts, this local Jewish law being later codified in the Mishnah.42 One notes, however, that the identification of such Jewish elements in these documents, apart from the case of Babatha’s marriage contract, which contains reference to ‘the law of Moses and the Jews/Judaeans’ (p.Yadin 10: 5), is quite difficult. As Oudshoorn states, a number of specialists working in the Jewish legal tradition have not been able to find uniquely Jewish elements in the documents. They have, of course and as expected, identified common elements shared by the Judaean Desert documents and later Jewish legal practice, as early identified by Rabinowitz 43and reflected in contributions to a recent book edited by Katzoff and Schaps.44 Oudshoorn’s argument that a ‘Jewish’ detail has been inserted in one of the documents in Nabataean, p.Yadin 3, dated 97 ce (95–6), specifying that the irrigation of the plot of land was scheduled for Sunday rather than the Sabbath, seems plausible, especially when we note that this detail was omitted when the same transaction involved a Nabataean purchaser (since p.Yadin 2 is a discarded draft of a sale of the same property). But rather than indicating a change to a Jewish legal framework, this could be taken to confirm that the framework is Nabataean: the Jewish purchaser had to have a detail changed to satisfy his religious scruples. The textual alteration reveals a willingness on the part of a Nabataean vendor and scribe to accommodate the specific wishes of the purchaser. 42

See e.g. 19–25. Rabinowitz (1956), and other publications. 44 Katzoff and Schaps (2005), and see Ousdhoorn (2007), 44–50, citing H. Cotton and L. H. Schiffman. 43

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In any case, the specification of the day of the week must be simply making explicit what was in any case the fixed irrigation arrangement for the plot of land in question. Rearrangement of the irrigation schedule for the benefit of an observant Jewish purchaser is, to my mind, extremely unlikely. Such rights involved systematic access to diverted watercourses, with landowners taking their turn in the opening of sluices, and must have been fixed for each plot of land. If they were changed, all the neighbouring properties that took their turn in irrigation rights would be affected and a change could not be effected unilaterally by the vendor of a particular plot. Again, if p.Yadin 3 simply makes explicit the existing arrangement, so as to satisfy the need of the Jewish purchaser for avoidance of doubt, then we could still be operating entirely under Nabataean law, just as p.Yadin 2 remains, on Oudshoorn’s own argument, entirely within the sphere of Nabataean law. Indeed the fact that p.Yadin 2 is almost identical in legal structure and legal detail with p.Yadin 3 makes it difficult to claim that p.Yadin 3 is operating on some non-Nabataean basis. Oudshoorn also brings other Nabataean documents into the same argument. Both p.Yadin 1 and p.Yadin 2 involve only Nabateaeans (so far as one can tell). In relation to the former Oudshoorn (147–8) associates the technical term pqdwn (p.Yadin 1: 24) with the same word occurring in p.Yadin 17: 41–2 (the Aramaic subscription to a Greek document) as connected with local (Jewish) law. This ignores the fact that the word is already known in Nabataean epigraphy and occurs both in the Turkma¯niyyah inscription at Petra (above) and in recently published inscriptions.45 P.Yadin 6 involves a transaction between Jews, but it is written in Nabataean script. Oudshoorn’s approach here (97–107) involves an attempt to deny that the claimed Arabisms in this text are unique to Nabataean Aramaic. Her aim appears to be to undermine the claimed Nabataeanness of this document, but her linguistic argument is unconvincing. There is no doubt that Arabisms began to creep into both Jewish and Nabataean (and Palmyrene) Aramaic in this period. The presence of Arabisms does not prove that a text is Nabataean: the evidence lies elsewhere, in the fact that p.Yadin 6 displays linguistic conformity with its having been written in

45

Nehmé (2003), 224–5; Conklin (2004).

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the Nabataean script. Nabataean Aramaic has a number of fairly distinctive features.46 So far as the law of these texts is concerned, I would claim that these documents in Nabataean script represent Nabataean legal practice. I do not wish to claim that Nabataean law is unique and different from the surrounding legal practice of the Aramaic tradition, but the texts are, I believe, representative of law in pagan Nabataea. Let us first consider the circumstances of these documents. They come from an area to the south of the Dead Sea, from east of the Jordan and from the period of the Nabataean kings. They come from within Nabataea, from an area which had not been continuously in dispute (as had some other areas) with the Judaeans. They are explicitly and elaborately dated according to the reigns of Nabataean kings in Petra. One of the documents refers to the fact that property of the Nabataean king is adjacent to the land being sold. Another appears to allude to taxes to be paid to the Nabataean treasury. The documents are in the distinctively Nabataean form of the Aramaic script, a form of script otherwise known to us in thousands of Nabataean inscriptions, dozens of them specifically dated to the first century ce and linked to the Nabataean royal family. As implied already, the language of the texts conforms to that of the rest of the Nabataean corpus. There is nothing here to suggest anything other than that these are Nabataean legal documents of a kind that could equally well have been drawn up in Petra or H . egra. That they operate under Nabataean law is also implicit in the documents themselves. Not only are they dated by Nabataean kings, but they refer to the customary law connected with particular aspects of life, using a distinctive Nabataean term for that customary law, h.lyqh/h.lyqt’, a term we have encountered earlier. My discussion of this term in 1993 (72) is rendered out of date by the publication of the papyri and a revised discussion is needed. This term is discussed also by Oudshoorn, though there are flaws in her discussion since she ignores, so far as I can see, the Nabataean inscriptional evidence, as in the case of pqdwn (above).47 46

See Healey (1993), 55–9; (2009), 38–40. The ignoring of epigraphic evidence is reflected in the book’s indexes. Another specific omission in this regard relates to pp. 124–5, and especially n. 94, which deny that there is evidence of retribution in duplum in Nabataean law. In fact tomb inscription H 31: 7 refers to it (kpl dmy ’tr’ dnh). The argument for a specific link in this context with Jewish law is thus undermined. 47

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So far as the earlier epigraphic evidence is concerned, we have seen that h.lyqt’ appears in a number of tomb inscriptions, where the inviolability of the tomb is based on the h.lyqt h.rm nbt.w wsˇlmw, ‘the h.lyqt’ of sanctity of the Nabataeans and Shalamians’ (H 1: 3; 8: 9). In H 19: 2 we find h.lyqt h.rm’ dy mh.rm ldwsˇr’ bnbt.w wsˇlmw ‘the traditional h.lyqt’ of what is sacred to Dushara among the Nabataeans and Shalamians’. h.lyqt’ appears to be an Arabism. That is, the best etymological explanation of it is provided by Arabic and it is to be listed with the many Arabisms that appear in the Aramaic of this period (including Jewish and Palmyrene Aramaic). The Arabic means, inter alia, ‘nature, character, characteristic’,48 though there is also a close association with ‘ethics’. In the Nabataean tomb inscriptions it seems to refer to characteristic customary practices. So far as the papyri are concerned, in p.Starcky (= p.Yadin 36 = p.H . ever 1): 34, there is an occurrence of the word in an obscure passage, but in the recently published papyri the word is used in the following construct phrases: kh.lyqt zbny’ wbr’wn’, ‘according to the h.lyqt’ of sales/purchases and quittance’ (p.Yadin 2: 13 and 36, also 3: 40), and kh.lyqt ‘ml, ‘according to the h.lyqt’ of work’ (p.Yadin 6: 10). It also occurs in one of the papyri in Jewish script, p.Yadin 7: 24, 65: kh.lyqt mtnt’ wbr’wny’ ‘according to the h.lyqt’ of gifts and quittances’. In these phrases the meaning of the word is probably legal: the full phrase in the last-cited instance is ‘according to the h.lyqt’ of gifts and quittances which are granted in written form forever’. I have elsewhere translated the word in question as ‘customary law’.49 Sokoloff translates it as ‘norm, custom’.50 It is arguable that translating it as ‘law’ or ‘norm’ is going a little far: maybe ‘established custom’ would be better. But in the Nabataean inscriptions this ‘established custom’ is certainly Nabataean, as is clear from the fact that it is qualified in several instances by the addition of ‘the Nabataeans and the Shalamians’ in the phrase kh.lyqt nbt.w wsˇlmw. This is a reference to specific customs or laws of the Nabataeans and others associated with them. Oudshoorn makes no reference to the inscriptions, thereby missing this specific piece of evidence. She also tries to eliminate the distinctiveness of the term h.lyqt’, as used in this period both in 48 49 50

Wehr (1971), 258; cf. Lane (1863–93), 802. Healey (2009), nos. 10: 34; 11: 13, 36. Sokoloff (2003), 49, after Greenfield (1992), 17.

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Nabataean and Jewish Aramaic (but probably a Nabataeanism in the latter),51 and insists that it refers to local custom. She cites mh.lqt (construct) for ‘local custom’ in m. B.Mes.. 7: 8 as a Hebrew equivalent of kh.lyqt (101), but the comparison with m. B.Mes.. 7: 8 on this point is based on a misreading of the Hebrew text, which has mhlkt hmdynh (MS Kaufmann52 vocalizes as me¯-hilkat ham-medı¯na¯h, printed texts have me¯-hilko¯t), not mh.lqt hmdynh.53 Although, as a consequence, her specific comparison falls away, along with any implication that h.lyqt’ in the Nabataean texts is a Jewish Aramaic intrusion or terminus technicus, it should be noted that the appearance of derivatives of the root H . LQ in Mishnaic Hebrew is in no way surprising, since the root is not unique to Nabataean and Arabic. It is the form of the word and its meaning which are distinctive and h.lyqt’ can be entirely explained within the Nabataean context.54 On the substantive issue of whether h.lyqt’ means ‘local custom’, meaning restricted local custom of the Mah.o ¯¯z area, the difficulty remains that where the word occurs in combination of with nbt.w wsˇlmw, it is unlikely to mean ‘local custom’, since it is difficult to imagine what ‘local’ would here contrast with. In these contexts it is more likely to mean ‘national’––unless one were to argue that the reference is to a special set of laws which operated only in the H . egra region (since all the occurrences of the phrase come from there) and there is nothing to suggest that. Returning finally to the documents in Nabataean Aramaic that involve Jews, one has to ask why these documents were drawn up in Nabataean script and refer to Nabataean kings. The ready answer seems to me to be that in the first century ce, in the Nabataean kingdom, Jews would be happy to sign contracts in Nabataean under Nabataean law (or the Nabataean variant of Aramaic law) and jurisdiction if the contract involved Nabataeans. The Jew who made a tomb for himself in H . egra made no allusion to his religion 51

Yadin et al. (2002), 105. Beer (1929). 53 I thank my colleague Professor Alex Samely for directing me to MS Kaufmann and the Jewish National and University Library website. 54 I note that Oudshoorn repeatedly cites the Nabataean Aramaic construct form h.lyqt without any complementing noun and treats kh.lyqt as if it means ‘as is customary’ (100). In fact it never means this and kh.lyqt only occurs in combination with nouns specifying the type of h.lyqt’ involved. 52

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and signed off his tomb inscription (and presumably its archival counterpart) entirely within the framework of Nabataean law (H 4).

A POSTSCRIPT I find myself convinced by many of Oudshoorn’s other arguments. Particularly convincing is the argument that Aramaic documents must have been valid in the eyes of the Roman court at Petra (and Rabbah). First, as general background she makes the point that it was ultimately Latin that was the official language of the Roman administration: Greek was one of the regional languages that were tolerated within the context of Roman legal practice and there are references in the legal codes to the acceptability of documents drawn up in other languages. Thus in the Digest (45. 1. 1. 6: Ulpianus 48 ad Sab.), cited in Latin by Oudshoorn (152–3): It makes no difference whether the reply is made in the same language or in another. For instance, if a man asks in Latin but receives a reply in Greek, as long as the reply is consistent, the obligation is settled. Whether we extend this rule to the Greek language only or even to another, such as Punic or Assyrian or some other tongue, is a matter for doubt. The writings of Sabinus, however, allow it to be true that all tongues can produce a verbal obligation, provided that both parties understand each other’s language, either of their own accord or by means of a truthful interpreter.55

Secondly, there are clear instances within the Babatha material where an action in the Roman court ultimately depends on a marriage contract drawn up in Aramaic. In this context it cannot be argued that an Aramaic deed would be intrinsically invalid. And there are also a number of Greek documents where the key subscriptio and witness-signatures are in Aramaic (e.g. p.Yadin 17 already cited): the Aramaic cannot have invalidated the deed in Roman eyes (and if it had so invalidated it, there would have been absolutely no point in going to the trouble of drawing up the document for the most part in Greek in the first place!).

55

Trans. Watson (1998); cf. Scott (1973), pp. x, 92.

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But in accepting Oudshoorn’s argument here, I am surprised that she has not cited what is to me the most striking evidence in its favour from within the Aramaic sphere: I can only assume that she wished to stick closely to the Judaean Desert documents and to the first/second century ce. The striking evidence I have in mind is that provided by the three Syriac legal parchments of the 240s ce. These are in a minority within the caches of documents from Roman Dura Europos and its area: the majority of the texts are in Greek.56 Greek documents again sometimes had Aramaic/Syriac end-matter. This apart, the main point about the Syriac parchments is that they are obviously intended to have full validity in Roman eyes despite being in the local Aramaic dialect. This is evident from the nature of the documents and the circumstances in which they were drawn up: one, a slavesale, had evidently travelled with its owner from Roman Edessa to Roman Dura and contains a number of distinctively Roman legal details. There is an elaborate dating system situating the document (like the other two) in the Roman and local calendars; it contains Roman-type conditions (not found, for example, in the Samaria slave-sales) in connection with a slave who might turn out to be faulty or liable to run away. It is signed off in Greek by the inspector of documents at Edessa. Perhaps most remarkably of all, the document specifies (as we have noted already in connection with Nabataean archives) that a copy will be deposited in the archival registry of Roman Edessa. Thus Aramaic documents were deposited in the Roman archives and there can thus be no doubt at all that such documents would stand up in a Roman provincial court. Although I find myself in sympathy with a number of Oudshoorn’s basic contentions––no simple correspondence between the language of a document and the legal system under which it is to be read, no evidence of local courts at Mah.o ¯¯z or Zoar, the best guide to which legal system is in operation lying in the internal evidence of the documents themselves––my contention with regard to the Nabataean documents is that the established Nabataean legal tradition (not dramatically different from the rest of the Aramaic common tradition) was intended to apply and that this is suggested internally by the references to the Nabataean h.lyqt’. Legal recourse would have 56 Welles, Fink, and Gilliam (1959), Feissel and Gascou (1995), (2000); Feissel, Gascou, and Teixidor (1997).

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been had, until 106 ce, to the royal system of justice in Petra. On this we have only slight evidence: Strabo’s report via Athenodorus about the legal habits of the Nabataeans and of foreigners at Petra, though this can be combined with an increasing appreciation of how sophisticated the Nabataean kings were in the first century ce. The Petra Palace (as the Great Temple is now interpreted by several archaeologists) was one of the city’s major building complexes, with audience hall, reception rooms, gardens, and pool. It is not difficult to imagine that it had a judicial function. In Roman times the adjacent Qas.r al-Bint, the (probable) temple of Aphrodite, to which the Palace may have had its own entrance, continued this judicial function, as we have seen from one of the Babatha documents.

REFERENCES ‘Abd al-Ba¯qı¯, M. F. (1945), Al-Mu‘jam al-mufahras li-alfa¯z. al-Qur’a¯n al-karı¯m (Cairo: Da¯r al-kutub al-mis.riyyah). Aitken, J. K. (2007), The Semantics of Blessing and Cursing in Ancient Hebrew (Ancient Near Eastern Studies 23; Louvain: Peeters). Beer, G. (1929), Faksimile-Ausgabe des Mischnakodex Kaufmann A 50 (The Hague: Veröffentlichungen der Alexander Kohut-Gedächtnisstiftung; repr. (1968) Jerusalem). Brichto, H. C. (1963), The Problem of ‘Curse’ in the Hebrew Bible (JBL. MS 13; Philadelphia, Pa.: Society of Biblical Literature and Exegesis). Brünnow, R. E. and von Domaszewski, A. (1904–5), Die Provincia Arabia I–II (Strasbourg: K. J. Trübner). Conklin, B. (2004), ‘The Meaning of {pqdwn} in the Nabataean Inscription of Qabr at-Turkma¯n’, JSSt 49: 59–70. Drijvers, H. J. W. and Healey, J. F. (1999), The Old Syriac Inscriptions of Edessa and Osrhoene (HdO I/XLII; Leiden: E. J. Brill). Feissel, D. and Gascou, J. (1995), ‘Documents d’archives romains inédits du moyen euphrate (IIIe s. après J.-C.). I. Les pétitions (P. Euphr. 1 à 5)’, JS 65–119. —— —— (2000), ‘Documents d’archives romains inédits du moyen euphrate (IIIe s. après J.-C.). III. Actes diverses et lettres (P. Euphr. 11 à 17)’, JS 157–208. —— —— and Teixidor, J. (1997), ‘Documents d’archives romains inédits du moyen euphrate (IIe s. après J.-C.). II. Les Actes de vente-achat (P. Euphr. 6 à 10)’, JS 3–57.

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Fischer, W. (2002), A Grammar of Classical Arabic (New Haven: Yale University Press). Gawlikowski, M. (1975/76), ‘Les Tombeaux anonymes’, Ber. 24 : 35–41. Gervirtz, S. A. (1959), ‘Curse Motifs in the Old Testament and in the Ancient Near East’. Ph.D. dissertation, University of Chicago. —— (1961), ‘West-Semitic Curses and the Problem of the Origins of Hebrew Law’, VT 11: 137–58. Greenfield, J. C. (1991) ‘Kullu nafsin bima¯ kasabat rahı¯na¯: the use of rhn in Aramaic and Arabic’, in A. Jones (ed.), Arabicus Felix: Luminosus Britannicus. Essays in Honour of A. F. L. Beeston on his Eightieth Birthday (Reading, NY: Ithaca), 221–5. —— (1992), ‘Some Arabic Loanwords in the Aramaic and Nabatean Texts from Nah.al H . ever’, Jerusalem Studies in Arabic and Islam 15: 10–21. (Reprinted in Greenfield (2001), i. 497–508.) Greenfield, J. C. (2001),  Al Kanfei Yonah: Collected Studies of Jonas C. Greenfield on Semitic Philology, ed. Sh. M. Paul, M. E. Stone, and A. Pinnick (2 vols.; Leiden/Jerusalem: E. J. Brill/Magnes Press). Hammond, P. C., Johnson, D. J., and Jones, R. N. (1986), ‘A Religio-Legal Nabataean Inscription from the Atargatis/Al-‘Uzza Temple at Petra’. BASOR 263: 77–80. Healey, J. F. (1993), The Nabataean Tomb Inscriptions of Mada’in Salih (Journal of Semitic Studies Supplement 1; Oxford: Oxford University Press). —— (2001), The Religion of the Nabataeans: A Conspectus (Religions in the Graeco-Roman World 136; Leiden: E. J. Brill). —— (2004), ‘A Nabataean Papyrus Fragment (Bodleian MS Heb. d. 89)’, ZPE 146: 183–8. —— (2005a), ‘New Evidence for the Aramaic Legal Tradition: from Elephantine to Edessa’, in P. S. Alexander et al. (eds.), Studia Semitica: the Journal of Semitic Studies Jubilee Volume (Journal of Semitic Studies Supplement 16; Oxford: Oxford University Press), 115–27. —— (2005b), ‘The Writing on the Wall: Law in Aramaic Epigraphy’, in P. Bienkowski, C. Mee, and E. Slater (eds.) Writing and Ancient Near Eastern Society: Papers in Honour of Alan R. Millard (OTSt 426; New York: T. & T. Clark), 127–41. —— (2009), Aramaic Inscriptions and Documents of the Roman Period (Textbook of Syrian Semitic Inscriptions 4; Oxford: Oxford University Press). —— (forthcoming), ‘The Realities behind Tomb Inscriptions: Imagining Nabataean Law’. Hillers, D. R. (1964), Treaty-Curses and the Old Testament Prophets (BibOr 16; Rome: Pontifical Biblical Institute). —— and Cussini, E. (1996), Palmyrene Aramaic Texts (Baltimore: Johns Hopkins University Press).

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Jones, R. N. (1989), ‘A New Reading of the Petra Temple Inscription’. BASOR 275: 41–6. Kaizer, T. (2006), ‘Capital Punishment at Hatra: Gods, Magistrates and Laws in the Roman-Parthian Period’, Iraq 68: 139–53. Katzoff, R. and Schaps, D. (eds.) (2005), Law in the Documents of the Judaean Desert (Supplements to the Journal for the Study of Judaism 96; Leiden: E. J. Brill). Lane, E. W. (1863–93), An Arabic–English Lexicon (London: Williams & Norgate). Lewis, N. (ed. with contributions by Y. Yadin and J. C. Greenfield ) (1989), The Documents from the Bar Kokhba Period in the Cave of Letters: Greek Papyri (Judean Desert Studies; Jerusalem: Israel Exploration Society/ Hebrew University/Shrine of the Book, Israel Museum). Milik, J. T. (1972), Recherches d’épigraphie proche-orientale, i. Dédicaces faites par des dieux (Palmyre, Hatra, Tyr) et des thiases sémitiques à l’époque romaine (Paris: P. Geuthner). Nehmé, L. (2003), ‘Les Inscriptions des chambres funéraires nabatéennes et la question de l’anonymat des tombes’, Arabian Archaeology and Epigraphy 14: 203–58. Oudshoorn, J. G. (2007), The Relationship between Roman and Local Law in the Babatha and Salome Komaise Archives: General Analysis and Three Case Studies on Law of Succession, Guardianship and Marriage (StTDJ 69; Leiden: E. J. Brill). Parrot, A. (1939). Malédictions et violations des tombes (Paris: P. Geuthner). Porten, B., and Yardeni, A. (1986–93), Textbook of Aramaic Documents from Ancient Egypt 1–3 (Texts and Studies for Students; Jerusalem: The Hebrew University). Rabinowitz, J. J. (1956), Jewish Law: Its Influence on the Development of Legal Institutions (New York: Bloch). Scott, S. P. (1973), The Civil Law, including the Twelve Tables: the Institutes of Gaius, the Rules of Ulpian, the Opinions of Paulus, the Enactments of Justinian, and the Constitutions of Leo: Translated from the Original Latin, Edited, and Compared with all Accessible Systems of Jurisprudence Ancient and Modern (17 vols.; original 1932; New York: AMS). Sokoloff, M. (2003), A Dictionary of Judean Aramaic (Ramat-Gan: Bar Ilan University Press). Starcky, J. (1954), ‘Un contrat nabatéen sur papyrus’, RB 61: 161–81. Watson, A. (1998), The Digest of Justinian (Philadelphia: University of Pennsylvania Press) (revised edn. of original of 1985). Wehr, H. (1971), A Dictionary of Modern Written Arabic, trans. J. M. Cowan (Wiesbaden: Harrassowitz). Welles, C. B., Fink, R. O., and Gilliam, J. F. (1959), The Excavations at DuraEuropos: Final Report V, Part I. The Parchments and Papyri (New Haven: Yale University Press).

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Wiseman, D. J. (1958), ‘The Vassal Treaties of Esarhaddon’, Iraq 20: 1–99. Wright, W. (1896–8), A Grammar of the Arabic Language (3rd edn.; 2 vols.; repr. 1955; Cambridge: Cambridge University Press). Yadin, Y., Greenfield, J. C., Yardeni, A., and Levine, B. A. (2002), The Documents from the Bar Kokhba Period in the Cave of Letters: Hebrew, Aramaic and Nabatean-Aramaic Papyri (2 vols.; JDS; Jerusalem: IES/ Hebrew University/Shrine of the Book). Yardeni, A. (2001), ‘The Decipherment and Restoration of Legal Texts from the Judaean Desert: a Reexamination of Papyrus Starcky (P. Yadin 36)’, SCI 20: 121–37.

Part II

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8 Law and Religion in the Hebrew Bible Bernard S. Jackson

1. INTRODUCTION Any study of law and religion in the Hebrew Bible must apply a ‘hermeneutics of suspicion’ to the term ‘law’, particularly in respect of its modern (positivist) connotations, as regards both language,1 content, and institutional enforcement. We have no documents of positive law from ancient Israel: the biblical ‘law codes’, as found in the biblical texts, represent religious programmes. We must also be careful in evaluating what the narratives tell us: they too come from religious sources, although sometimes apparently reflecting on customary or state practice. However, once we rid ourselves of anachronistic assumptions, and seek to take seriously the Bible’s own statements on the relationship between law and religion and related theological claims (not least, that of imitatio), a number of interesting issues arise. These include: (1) the relationship between the human administration of justice (even when claimed to be divinely authorized) and various forms of direct divine intervention in the legal system; (2) the use of metaphors derived from ‘legal practice’ to describe relationships between humanity (particularly Israel) and the divine; in this context, both the marriage and the shepherding metaphors deserve close attention, not only for their An earlier draft of this chapter, with an additional section on Law and Prophecy, appears as ‘Human Law and Divine Justice: Towards the Institutionalisation of Halakhah’, JSIJ 9: 1–25 (2010a). This chapter also draws extensively on earlier research; hence the unconscionable number of citations to Jackson in the notes herein. 1 Jackson (1999/2000).

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theological use, but also the (reverse) impact of that theological use on the human institutions themselves; (3) the relationship between the standards and modes of justice attributed respectively to God and human agencies, particularly in the context of talionic punishment and collective responsibility. One may distinguish two models––‘dualistic’ and ‘monistic’––for the relationship between Human Law and Divine Justice in the Jewish tradition.2 Is human law conceived as a separate system from the direct operation of divine justice, operating under delegated authority from God, and sharing significant elements in common with secular models of human justice (what I call the ‘dualistic’ model), or is it to be regarded as an integral part of a single system of divine justice (the ‘monistic’ model)? The Bible is much concerned with the direct operation of divine justice. In modern scholarship, however, a dualistic answer is more often given (or assumed): direct divine justice comes into play only when, for some reason, the semi-autonomous system of divinely mandated human justice fails. In this context, we may distinguish: Direct divine justice: God does justice by direct intervention, without involving any human agency. The dualistic approach tends to regard this as a purely theological matter, quite separate from divine justice as administered by humans. On the monistic model, on the other hand, we might wish to pursue substantive comparisons more rigorously, and ask about the relationship between the standards applied in direct divine justice and those expected by human agencies applying divine law. After all, humanity is created in the image of God (Gen. 1: 26–7), and is presumably expected to emulate his standards. Institutional divine justice: God directly intervenes within human adjudicatory processes, through institutions such as the oracle or ordeal, or, less immediately, by sanctioning a false oath taken in his name. The dualistic model regards such procedures as a safety net: divine procedures are applied to remedy the shortcomings of human cognition––what I have termed the ‘functional model’. I question, however, whether this is a sufficient explanation. Charismatic divine justice: God inspires the human judge to make a decision in accordance with divine justice. This appears to me to be the significance of the charge of Jehoshaphat to the judges he 2

Jackson (2004).

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appoints, when he tells them that God will be ‘with them’ (imakhem) in rendering judgement (2 Chr. 19: 4–7). It also explains why the majority of charges to judges in the Hebrew Bible do not refer them to written sources of law, but rather command them, more generally, to do justice, and avoid corruption and partiality (e.g. Deut. 16: 18–20). Clearly, this reflects the monistic model.3 Delegated divine justice: Here God does enact laws and authorizes human judges to apply them in accordance with human understanding. Here (at last) we encounter the dualistic model. The above presentation (discussed further in s. 2) relates primarily to adjudication and thus to the ‘contentious’ context. But what of the (logically prior) ‘non-contentious’ context, of the establishment of norms and their everyday observance? Our conceptual distinction between legislation and adjudication is less pronounced in the Hebrew Bible, as the narratives of desert adjudication,4 in particular, indicate. In the context of the enunciation of law, it is clear that the monistic model has preference: God legislates directly, through prophecy.5 If we adopt a ‘monistic’ model, we may be tempted to interpret some aspects of the practices of Jewish law as deliberate theological constructions, rather than the result of historical accident (particularly, the lack of legal sovereignty through most of the history of the Jewish people). This, I would suggest, is best represented in contemporary literature by the recent work of Jacob Neusner on the early rabbinic halakhah.6 If, on the other hand, we adopt a ‘dualistic’ model, then the interpretation of the practices of Jewish law becomes far more open to secular models. Much modern scholarship on 3

Jackson (2006), 411–18. See further s. 2; Jackson (2006), 425–30. 5 On the post-biblical interpretation of the ‘prophet like Moses’ model, see further Jackson (2008), 13–31. We may wonder whether the closer integration of law and narrative in the Hebrew Bible than in rabbinic sources, and the particular roles of prophets in the former, is itself a reflection of the movement from a monistic to a dualistic model of divine justice. The story of Nathan’s parable is clearly an example of a narrative that reflects the prophetic role as a mediator of (here) divine adjudication. The most developed parable in the New Testament is that of the prodigal son (Luke 15: 11–32), where a ‘halakhic’ issue (the effect of an ‘advance’ on the ultimate distribution of an estate) is used as a medium for the pronouncement by a prophet (Jesus) of a divine message about both forgiveness and the relationship between Israel and the new church. See Jackson (2008), ch. 6. 6 Neusner (2001) and at greater length in Neusner (2000). For a review essay, see Jackson (2009). 4

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Jewish law follows this path, and the Mishpat Ivri movement, which seeks the incorporation of Jewish law within the law of the State of Israel, strongly advocates it for ideological reasons. Indeed, this modern ideological concern may well have reinforced some in applying the dualistic model to the Bible itself. I shall not here attempt any full historical analysis of the relationship between the two models. I have argued that such ‘secular’ law as we may identify with the origins of the Mishpatim of Exodus 21–2 was weakly institutionalized,7 and that it was precisely through its later association with divine justice that stronger forms of institutionalization, associated today with secular positivism, ultimately emerged.8 We see this in a number of different respects: the processes of adjudication, the growth of jurisdiction, and in many cases the very force and meaning attributed to particular laws, and the standards applied in them. As against the dualistic model of divine justice that dominates contemporary scholarship––the view that there are separate spheres of human law and divine justice, the latter intervening in the former only when something goes wrong––the biblical writers, in my view, largely promote the ‘monistic’ model, encapsulated in the Deuteronomic claim (1: 17): UP$MH YK AWH OYHLAL, that justice is all or essentially divine, even when it is administered through human hands. It is, however, surely significant that the Hebrew Bible itself appears to suggest a historical development in this respect. The original form of adjudication applied by Moses was monistic: consultation of the oracle in all cases (Exod. 18: 15, lidrosh elohim); only on the advice of Jethro was a system of delegation established, which arguably represented an early example of the dualistic model.9 A related aspect of the historical relationship between human law and divine justice is the process of institutionalization. We may ask whether social institutions––sets of behaviour patterns, of some degree of normativity (perhaps ‘customary’), understood by people in society as frameworks for understanding and regulating distinct areas of social life, and often relying on ‘self-executing’ rules rather than judicial enforcement––became ‘legal’ before they were reinforced and in some respects modified through religious influence, or was the very process of legal institutionalization itself prompted, 7

On the ‘self-executing’ character of many of the norms of the Mishpatim, see Jackson (2006), 29–35, 389–95 et passim. 8 9 See further Jackson (2007a). Jackson (2006), 422–3.

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or at least aided, by the concept of divine law? I tend to the latter view. Divine justice is a metaphor. It commences from something that is known, something about human behaviour. It is then attributed to the divine, but that very attribution involves (in the modern jargon) ‘added value’, reflecting the power etc. understood to reside within the divine. When, in due course, the metaphor of divine behaviour itself becomes a model for humanity (in the form of delegated divine justice), aspects of that ‘added value’ remain. In our context, a weakly institutionalized form of human law is attributed to God; its power is thereby enhanced; and once such divine justice becomes a model for human law, the strength of the human institution is itself thereby increased. I shall argue (s. 3) that this applies also in the ‘non-contentious’ sphere, and that the history of marriage and divorce in Jewish law provides an example of this process. Finally, there is the question of the relative standards of human law and divine justice. The monistic model implies at least an aspiration that the standards of human law emulate those of divine justice; the dualistic model carries no such assumption. Two examples are here considered, the talionic principle and the responsibilities of the shepherd (s. 4). It need hardly be said that this chapter is programmatic, seeking merely to sketch a problem with some indicative examples. Any full treatment would be at least of monographic proportions.

2. INSTITUTIONAL DIVINE JUSTICE First, a closer look at the significance of ‘institutional divine justice’. I have argued that we need to supplement it with what I have called the ‘special interest model’.10 In the five narratives of desert adjudication, a divine procedure appears to be used: most appear to involve (first instance) oracular determination11 ––for which Mosaic authority is thus claimed, despite the fact that this is a jurisdictional 10

Jackson (2006), 398–403. Explicitly, from the use of BRQ in Num. 27: 5 and HWHY YP LE OHL $RPL in Lev. 24: 12. The use of $RP AL in Num. 15: 34–5, followed directly by God’s (remedial) speech, may be taken to have the same implication. Num. 36: 5 tells us that Moses ruled HWHY YP LE, cf. Lev. 24: 12. 11

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claim that Exodus 18 ultimately cedes. All involve matters that evoke clear divine interest. First, there is the case of the daughters of Zelopheh.ad (Numbers 27), with its concern for distribution of the Promised Land. The decision, in turn, prompts a second issue also related to that distribution: whether the daughters may marry outside their tribe, thus threatening the tribal allocation (Numbers 36). Third, men who were unclean through contact with a corpse complain they could not keep the Passover on the appointed day. Moses consults God, who institutes what has come to be termed Pesah. Sheni in order to accommodate them (Num. 9: 6–14). Fourth, there is the case of the man found gathering sticks on the sabbath day (Num. 15: 32–6), where the issue appears to be not merely the precise nature of the sanction to be applied but rather whether gathering sticks constitutes ‘work’ (HKALM) and is thus a violation of the sabbath within the sense of Exod. 20: 10. The fifth case is that of the blasphemer in Leviticus 24. Here we have a combination of ‘functional’ and ‘special interest’ models: there is a genuine interpretative difficulty (whether the offence applies equally to a ger), in a matter reflecting the divine interest in the offence of blasphemy. In the narrative of Akhan in Joshua 6–7, where initially there is no obvious suspect, the identification by the sacred procedure is followed by a confirmatory search (and confession). An initial search of the whole camp would no doubt have been cumbersome and inconvenient, but in principle it could have achieved the same result. There is, however, a reason for the use of a procedure of divine justice in this case: there is a divine interest at stake, the missing booty from Jericho, which had been declared h.erem.12 The form of institutional divine justice we find in the sotah procedure (Num. 5: 11–30) clearly fits the ‘functional’ model: the lack of human evidence is heavily stressed. But forbidden relationships are (as argued below, see s. 3) the earliest concern of divine law in the area of marriage and divorce. The early rabbinic sources already show a distinct movement towards the ‘dualistic’ model. On the one hand, the biblical forms of institutional divine justice (oracle, ordeal, if not the––less 12 Similarly, Saul’s use of the oracle after Michmash (1 Sam. 14: 36 ff.) relates not only to a decision whether or not to pursue war, but also to adjudication upon the effect of a curse (involving use of the divine name). Again, the use of the oracle in the choice of Israel’s first king (1 Sam. 10: 20–3) involves divine legitimation of a partial transfer of divine authority.

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immediately effective––oath) largely disappeared; on the other hand, divine justice was less clearly associated with divine ‘special interests’. Nevertheless we may consider in this context two examples of rabbinic criminal law, which used biblical sources to support new forms of divine justice, and where distinct traces of the dominant biblical conception survive. There is a theological explanation for this. Although we often tend to read the rabbinic sources on capital punishment as reflecting modern objections to the sanction, and interpret the very strict rules of evidence as reflecting that (secular, humanistic) value, capital punishment also clearly functions as a means of atonement, as stressed by Kirschenbaum and Segal,13 and there may well have been a feeling that it is the role principally of God to take a life for that purpose. Thus, the laws of evidence raise here just the same issue of whether the ‘functional’ model of divine adjudication is adequate. But what, if any, is the form of divine justice that applies here? Two indications have survived, both in the context of homicide which cannot be prosecuted because of evidentiary deficiencies. The first example is ‘institutional’ in that God directly intervenes within human adjudicatory processes. The Mishnah (Sanh. 9: 5(b)) contemplates such intervention in cases where human evidence is insufficient: ‘(As for) the slayer of a man without witnesses, they [the court] take him to a prison-cell and feed him with “the bread of adversity and the water of affliction”.’ The ‘bread of adversity and the water of affliction’ is in fact a quotation from Isa. 30: 20, where it appears in the context of divine justice. If the Mishnah had simply wished to say that in cases like this there can be no capital punishment but only a period of imprisonment on a subsistence diet, they had no need to borrow the words of Isaiah. The fact that they did so indicates that they wished to import some special meaning from the original context. I take this meaning to be that the final ‘disposition’ of the offender, the decision whether he will survive or die, will be that of God. This, again, might be taken to exemplify the dualistic model: recourse to a parallel (divine) system when the human system fails. Nevertheless, it is monistic in so far as the human authorities ‘assist’ by imprisoning the offender and placing him on such a subsistence diet. The rabbis, moreover, could not believe that this was required where the homicide was entirely ‘without witnesses’, 13

Kirschenbaum (1991); Segal (1991).

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i.e. where there was no evidence at all. They interpreted it to mean that there were in fact witnesses, but they were ineligible for some technical reason. Indeed, Tosefta Sanhedrin 12: 7 interprets the case as one where there was indeed full eyewitness testimony, but the witnesses had failed to persuade the offender to accept the ‘warning’ (hatra’ah) which rabbinic law came to require as a further condition of application of the penalty: If a man about to commit a crime be warned and he keep silent, or if, when he is warned, he shake his head, they are to warn him a first time and a second time, and the third time to take him to prison. Abba Shaul says: he is warned a third time; and on the fourth is taken to prison and fed with bread of anguish and water of affliction.

On this view, what was lacking was (only) the advance acknowledgement of responsibility by the offender; only when that was present did the rabbis regard themselves as entitled to administer the death penalty. This is almost universally regarded as a technical device used by the rabbis in order virtually to eliminate capital punishment, which––as we know from other sources––had come into widespread, if not universal, disfavour.14 However, we should consider the theological meaning of the death penalty in rabbinic thought, and not merely its penal and deterrent functions as conceived by secular societies. Neusner has argued that: the death penalty . . . does not mark the utter annihilation of the person of the sinner or criminal. On the contrary, because he pays for his crime or sin in this life, he situates himself with all of the rest of supernatural Israel, ready for the final judgment . . . the criminal, in God’s image, after God’s likeness, pays the penalty for his crime in this world but like the rest of Israel will stand in justice and, rehabilitated, will enjoy the world to come.15

If so, we may be tempted to propose a different interpretation for the institution of hatra’ah: where, at least, capital punishment is to be the result of human action (as opposed to that of the ‘snake of the rabbis’16), there is a desire to ensure that the atoning function of the sanction will be accomplished. The institution of hatra’ah indicates 14 Mishnah Makkot 1: 10: ‘A Sanhedrin that puts a man to death once in seven years is called a murderous one. R. Eleazar ben Azariah says “Or even once in 70 years.” R. Tarfon and R. Akiva said, “If we had been in the Sanhedrin no death sentence would ever have been passed”: Rabban Simeon b. Gamaliel said: “If so, they would have multiplied murderers in Israel.” ’ 15 16 Neusner (2001), 204, 206. On which see further in the final section.

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at least that the offender has accepted responsibility for the consequences of his imminent action. Here, human law and divine justice act in tandem, in order to effect a theological purpose. Surely this is closer to the monistic model. The second example also concerns evidentiary deficiencies in the criminal law, but here the form of divine justice is closer to the ‘direct’ form than the ‘institutional’. The rabbis took a very strong line in interpreting the two or three witnesses requirement of Deut. 19: 15 to mean direct eyewitness testimony, and in rejecting such eyewitness testimony as might conceivably be viewed as merely circumstantial evidence. Thus, we read in Tosefta Sanhedrin 8: 3: With what object is this said?17 In order that the witness should not (for example) bring forward as evidence: ‘We saw the defendant with a sword in his hand running after this fellow; the latter thereupon fled into a shop followed by the other; we went in after them and found the one slain, and in the hand of the murderer was a sword dripping blood.’ And lest thou shouldst say: ‘If not he, who then did kill him?’ (take warning from the example of) Shimon, the son of Shatah, who said, ‘May I not live to see the consolation if I once did not see a man with a sword in his hand running after his fellow; the latter thereupon went into a deserted building followed by the other; I entered after him and found the one slain and a sword in the hand of the murderer dripping blood. I said to him: Wicked man, who slew this one? May I not live to see the consolation if I did not see him; one of us two must have slain him. But what can I do to thee, since your condemnation cannot rest in my hands? For the Law says: at the mouth of two witnesses, or at the mouth of three witnesses, shall he who dies be put to death. But he who knows the thoughts, he exacts vengeance from the guilty; for the murderer did not stir from that place before the serpent bit him so that he died.

I would hazard the view that most modern, secular prosecuting authorities would be delighted to have such evidence at their disposal. There is, of course, a possibility that the victim tripped and fell on the sword of the pursuer at the moment they were out of view of the witnesses. But the modern secular standard of proof, as we express it in England, is ‘proof beyond reasonable doubt’. That is normally regarded as a standard that goes beyond that which is

17

A comment, probably, on the warning given to the witnesses, according to Mishnah Sanhedrin 4: 5, that they should not testify according to ‘merely your own opinion’: Danby (1919), 78–9.

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required in everyday, social intercourse.18 Nevertheless, this rule against circumstantial evidence in Jewish law might be regarded as excluding conviction even if the doubt is less than reasonable–– merely a theoretical possibility. However, the talmudic passage does not leave the matter in limbo. We are told that in the earlier case involving Shimon ben Shetah. (which also involved, we may note, a single witness) God intervened directly, in order to take the life of the murderer through a serpent bite. Significantly, this came to be thought of as a regular institution, rather than a one-off event: the ‘snake of the rabbis’, whose biblical source may be found in Qoh. 10: 8: ‘he who breaks down a fence may be bitten by a snake’ (uforez gader yishkhenu nah.ash). This might be seen as a good example of the dualistic model, in that direct divine justice comes into play only when, for some reason, divinely mandated human justice fails. However, so strict an interpretation of the evidentiary requirement means that direct divine justice in practice may prove to be the ‘default’.

3. THE INSTITUTIONALIZATION OF MARRIAGE AND DIVORCE19 I turn to the history of marriage and divorce. Here, the rabbinic development greatly expands the scope of divine law from areas understood by the Hebrew Bible to be matters of divine interest (arayot) to more mundane areas of human interest––a development, we may suggest, from a monistic to a dualistic model of divine justice, the latter reflecting to a greater extent matters of concern to those entrusted with divine law in the capacity of delegates. In the Hebrew Bible, both marriage and divorce are weakly institutionalized.20 The laws set out to provide no account either of how marriage is entered into or how divorce is effected, although they mention both incidentally. The law is far more interested in prohibited relationships (whether marital or not). In the narratives, the emphasis is upon negotiations,21 the entry into the husband’s 18 To the extent that lawyers insist that a ‘not guilty’ verdict does not mean proof of innocence, but only the absence of (the legal standard of) proof of guilt. See further Jackson (1998). 19 On this section, see further Jackson (2008), ch.8; Jackson (2010b). 20 See further Jackson (2011). 21 Falk (1964), 134, on Gen. 34: 8, Judg. 14: 7, 1 Sam. 25: 39–40, Cant. 8: 8.

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premises22 and the celebratory feast,23 rather than upon any particular set of formalities. There is a wide variety of marital and quasi-marital arrangements, related to the particular social context in which the interfamily ‘alliance’ is made.24 Similarly, the laws refer only incidentally to the grounds for and procedure of divorce, while the narratives seem to know only of the simple social procedure of expulsion (used equally, I may add, for disinheritance25). Adultery is initially clearly a matter for self-help. Impliedly, the fate of the woman is left to the tender mercies of her offended husband: the wisdom writer in Prov. 6: 32–5 advises the adulterer not to rely on the possibility of kofer, since the cuckolded husband may be too enraged by jealousy (HANQ) to accept it. This contrasts with the position in Deut. 22: 22, where the death penalty, apparently mandatory and institutionally enforced, is applied to both partners. We may perhaps detect in this transition the influence of the divine metaphor of God’s marriage with Israel in Hosea,26 and the sanctions for adultery/idolatry in that context.27 22

Falk (1964), 152, and his account at 140–2 of terminology suggestive of in domum deductio or consummation. 23 e.g. Gen. 29: 27–8, Judg. 14: 12; Falk (1964), 152. 24 See Jackson (2006), 93–102, 367–76; (2007b). 25 Note the ‘divorce’ terminology used to describe the disinheritance of Jephthah in Judg. 11: 2, 7: ‘And Gilead’s wife bore him sons; and his wife’s sons grew up, and they threw out (W$RGYW) Jephthah, and said to him, You shall not inherit (LXNT AL) in our father’s house; for you are the son of a strange woman . . . And Jephthah said to the elders of Gilead, Did not you hate (OTAN$) me, and expel me from my father’s house (YNW$RGTW)?’ 26 Already in the 8th century, Hosea depicts the relationship between God and Israel in terms of a marriage where the wife has been unfaithful (but ultimately is forgiven and taken back). But though God’s relationship with Israel is here reestablished through a berit (2: 18)––and Hosea (4:2) appears to invoke the Decalogue prohibition of adultery––human marriage is not yet itself conceived in terms of a berit, and certainly not one with sacral connotations. For the latter conception, see Malachi, discussed in n.28, infra. 27 A similar argument may be applied to the sanctions for rape in Deut. 22: 29: ‘because he has violated her; he may not put her away all his days’. This is one of only two situations where the Hebrew Bible makes a marriage indissoluble. Why? There is a hint of talionic punishment: he has overridden the will of the woman (or that of her father: Fleishman (2004), 65; Jackson (2006), 374) as to whether a marriage may be contracted; his will therefore is to be overriden as regards future termination of the marriage. And that talionic principle is in fact more characteristic of divine than of human justice. The other situation where the Hebrew Bible makes a marriage indissoluble is Deut. 22: 19, where the husband has made a false accusation against his newly wedded wife. Had the accusation succeeded, the marriage would have terminated (by the execution of the wife). Where it does not succeed, the husband (conversely) is not allowed to terminate the marriage (by divorce), in addition to the corporal and financial sanctions imposed on him.

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For God himself is described in the Decalogue prohibition of idolatry as ANQ LA (Exod. 20: 5), but the power of divine jealousy is of a different measure to that of man, notwithstanding the fact that God retains the power to forgive. This leads, in later sources,28 to a more complete institutionalization of both marriage and divorce, and by the time of the Mishnah a full set of rules for their institution, regulation, and termination, and a conceptual construction of the relationship as kiddushin. However, this may well have been prompted by an eschatologically informed institutionalization of marriage and divorce, which we find at Qumran and in the New Testament. Much of this pattern survives in Second Commonwealth sources, but is intensified by a combination of theological and social factors: on the one hand, eschatological thinking that sought to revive the perfection of the original creation (variously understood in the androgyny29 and ‘one flesh’ doctrines30); on the other, intense sectarian rivalry in which group identities found important expression in ‘holier than thou’ claims regarding permissible sexual relationships. Three ‘levels’ of holiness may be observed: 1. The holiest state, some claimed, was that of celibacy, the closest replication (on one view31) of the original androgynous regime,32 as found in some of the Qumran sources, 1 Corinthians 6 and Matt. 19: 10–15. In discussing Paul’s use of the ‘one flesh’ doctrine in 28 The use of the marriage metaphor, as we find it in Malachi, is significantly different from that of Hosea: here, the marriage itself is a covenant, and God is a witness to it (2: 14). Malachi is often dated to the period of Ezra and Nehemiah, and it is there that we find, in the combination of political/juridical and religious authority enjoyed by Ezra, the most likely context for the beginnings of the sacralization of the institution of marriage itself. With his combination of secular power and religious authority (though he is depicted as using here only the latter), Ezra bans intermarriage and requires the divorce of foreign wives. 29 See n. 32. 30 Derrett (1970), 375 stresses its application to any sexual relationship, not restricted to marriage: ‘This one flesh is made by nothing but sexual intercourse, and there is no sexual intercourse which does not make one flesh.’ 31 Whether this view can be read back into the biblical period is not clear. Gen. 1: 26–7 closely ties the single creation of man and woman to the image of God (‘And God said, Let us make man in our image, after our likeness; . . . So God created man in His own image, in the image of God created He him; male and female He created them’). If this implies an androgynous God, it is an androgynous God apparently capable of reproduction: benei ha‘elohim (Gen. 6: 2, 4). 32 On Second Commonwealth and rabbinic views of the original creation as androgynous, see Daube (1956), 80–1; Winter (1956), 72; Jackson (2008), 183–9.

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1 Cor. 6: 16, Derrett observes: ‘In effect all Israel must practice the scrupulousness of the priests (Lev xxi.7, 13–15) . . . ’33 The eschatological significance of such a standard derives from the fact that a version of the levitical rules is applied to the priesthood of Ezekiel’s new temple.34 Similarly, Fitzmyer takes Jesus’ view of marriage as indissoluble as an extension of an Old Testament attitude towards members of priestly families who were to serve in the Jerusalem temple, and sees it as consistent with ‘other considerations of the Christian community as the temple in a new sense’.35 But celibacy was not an option for all, and pragmatic considerations (the uncertainty whether the eschaton would arrive in the present generation) also pointed to the need for some to continue to procreate. 2. Where this concession is granted, the relationship had to be exclusive. This view may well itself have a related theological basis, and should not be regarded merely as a ‘next best thing’ to complete celibacy. The very notion that the original androgynous creation is replicated for Christians in the eschatological age by a union (albeit spiritual) with Christ, evokes the prophetic marriage metaphor of the Hebrew Bible. Such a union has a conceptual permanence in that one of its parties, God, is permanent.36 Such a marriage was in principle indissoluble even by death,37 hence the hostility to even ‘consecutive polygamy’, as found in CD 4: 20–1.38 (which itself relies upon Gen. 1: 27 as ‘the foundation of creation’, HAYRBH DWSY, and some Pauline sources).39 As regards divorce, the implication

33 Derrett (1970), 374. The standard in Lev. 21: 13–15 is that expected of the High Priest: ‘And he shall take a wife in her virginity (bivtuleyhah). A widow, or one divorced, or a woman who has been defiled (h.alalah), or a harlot (zonah), these he shall not marry; but he shall take to wife a virgin of his own people (betulah me‘amav), that he may not profane his children among his people; for I am the Lord who sanctify him.’ 34 Isaksson (1965), 147, 199, argues that in Matthew 19 Jesus was dependent, in particular, on Ezek. 44: 22. 35 Fitzmyer (1998), 101 (originally published in Fitzmyer (1976)), broadly approving the approach of Isaksson (1965), 38, and citing 2 Cor. 6: 14–7: 1; 1 Cor. 3: 16–17; Eph. 2: 18–22; see also Fitzmyer (1998), 102 on 1 Pet. 2: 5, 9. 36 Cf. Jackson (2000), 169 on the relationship between God’s permanent entitlements in Lev. 3: 16–17 and the permanence of law. 37 See particularly 1 Cor. 7: 10–11; Matt. 5: 32a. 38 So argued in Jackson (2008), 173–81, where the extensive debate on the matter is reviewed. 39 1 Tim. 3: 1–2, 1 Cor. 7: 39; Rom. 7: 2–3, discussed in Jackson (2008), 219–22.

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from OHYYXB in CD 4: 20–1 gains some support from a rabbinic source.40 The emphasis of the Gospels, in line with biblical tradition (and arguably the focus of the ‘one flesh’ doctrine itself), was on the adulterous character of the second union (a forbidden relationship) and remarriage,41 rather than the divorce itself; it was in the context of sectarian discipline (and in radical opposition not merely to Jewish but even more to pagan divorce practices) that the ideal of indissoluble marriage generated a principled opposition to divorce itself.42 All this applied to both man and woman: the original androgynous state was incompatible with any conceptual distinction between male and female. Thus a once married but divorced man committed adultery if he took up a second relationship even with a virgin female.43 3. A third standard is also found. For those for whom it was not possible to comply with the full logic of the creation model(s), monogamous marriage was prescribed,44 without banning a second marriage after the death of a spouse. Within the Pauline church, it seems, this differentiation may have marked the superior holiness of bishops and elders (just as higher standards had been required of the priests in the Hebrew Bible); there are indications of such internal hierarchization also at Qumran.45 Pragmatic factors also played a role: successive marriages might be necessary for the king, in the interests of the eschatological leadership;46 the taint of a previous divorce might have to be excused in new entrants to the church, at least in circumstances where it was required by the convert’s former 40 Daube (1956), 82–3 finds evidence in Kidd. 2b that R. Shimon ben Yoh.ai used the androgyny doctrine in voicing disapproval of divorce. 41 See Jackson (2008), 196–207, on the Synoptics. 42 1 Cor. 7: 10–11. 43 Matt. 19: 9; Mark 10: 11; Luke 16: 18. 44 Jackson (2008), 219–22. 45 According to the War Scroll, males from the age of 25, Isaksson argues, were expected to be celibate, in order not to be disqualified from serving in the (imminent, eschatological) holy war: soldiers must go to battle in a state of purity, not having had relations with women the previous night. However, those between 20 and 25 did not go to war, and for them, Isaksson argues (Isaksson (1965), 55–6), marriage was permissible. See further Jackson (2008), 182 f., and on the marital rules applicable to the king, 173, 179, 181. Schiffman (1992), 214–15 notes that the Temple Scroll seeks to make the king like a High Priest, who may not marry a non-Israelite. 46 If the king were to die without issue, the eschatological leadership would disappear with him. Hence, he is not to divorce his wife: ‘for she alone shall be with him all the days of her life’ and if she dies, he is to take a new wife (Temple Scroll 57:15–19): Jackson (2008), 181.

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marital regime;47 and in ‘mixed marriages’ it might be necessary to tolerate divorce of the believer by the unbeliever.48 In all these cases, there was some theological, as well as practical, warrant for the compromise. This review of the Qumran material shows how strongly creation models, taken to represent the divine ideal, influenced the law towards greater institutionalization within circles that believed in the imminent coming of the eschaton. It is hardly surprising that the strongest institutionalization of opposition to divorce––a direct ban, with concessions only to ‘mixed’ couples in the context of conversion––comes from Paul, exercising disciplinary powers within the early Church. Rabbinic law did not share the eschatological fever that prompted recourse to the creation models.49 Nevertheless, we may speculate that the need to respond to the Pauline position had an impact in juridifying (perhaps anachronistically) the halakhic position (as found in the appendix to Gittin).50 At the same time the (originally private, or social) horror of resuming a relationship with an adulteress (now even without the intermediate marriage of Deuteronomy 24) solidified into a formal ban on resumption of relations with an adulterous wife, but this status of ‘prohibited’ woman naturally led to the view that such a wife ought to be divorced.51

4. STANDARDS OF HUMAN LAW AND DIVINE JUSTICE The debates regarding talionic punishment may benefit from being revisited in the context of the present argument. Should we interpret the talionic laws in the light of the ancient Near Eastern codes, particularly Hammurabi and the Middle Assyrian Laws,52 or 47

48 Jackson (2008), 219, 223. Jackson (2008), 222–3. Given his overall approach, stressing the importance of creation models in the underlying theology of the halakhah, one might therefore have expected the Edenic model to figure large in Neusner’s analysis. But this is not what he finds in the sources: ‘Israel forms the counterpart to Adam and Eve, but only at a few points is the metaphor articulated’ (2001), 87. See further Jackson (2009). 50 M. Git. 9: 10, as discussed in Jackson (2008), 194–5, 205–8; I reply to the contrary views of Vered Noam (2005) in Jackson (2011). 51 Jackson (2008), 208–10. 52 LH 196, 197, 200; on MAL A50, see Jackson (1975), 96–8. 49

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rather in the context of biblical literature? I have argued for the latter, in distinguishing two different formulae: the tah.at formula and the ka’asher formula, the latter indicating qualitative equivalence, the former requiring also quantitative equivalence.53 Both are found in biblical narrative as well as law, but the ka’asher formula appears to be more strongly associated with divine justice. In the latter context, talion appears (sometimes without the use of any formula at all) in some rather sophisticated forms. Take, for example, God’s punishment of the people for following the pessimistic advice of the spies in Num. 14: 28. God says to the rebels, through Moses: ‘As truly as I live, said the Lord, as you have spoken in my ears, so will I do to you’ (YNZAB OTRBD R$AK OKL H$EA IKA). They are to die in the wilderness, and not inherit the Promised Land, since they themselves had said (Num. 14: 2): ‘Would God that we had died in the land of Egypt! or would God we had died in this wilderness.’ We have here the use of the same formula with R$AK, IK and H$E as in Deut. 19: 19: WYXAL TW$EL OMZ R$AK WL OTY$EW and Lev. 24: 19: WL H$EY IK H$E R$AK. In the patriarchal narratives Jacob is a deceiver (of Isaac) himself deceived (by Laban); the kidnapped Joseph turns, effectively, kidnapper (of Benjamin); his brothers, who put him into a bor (Gen. 37: 22, 28, 29) are themselves threatened by him with imprisonment in a bor.54 And many other examples could be cited. When the talionic formulae of the Mishpatim came to be viewed as divine justice to be administered by human hands, surely we must seek to take account of the ‘added value’ the institution received as a prominent mode of divine justice. One aspect, I would suggest, is found in the Deuteronomic application of talion in the case of the ed h.amas (the rabbinic edim zomemim), where both formulae are found. Notice how the tah.at formula is introduced (Deut. 19: 21): ‘Your eye shall not pity; it shall be life for life, eye for eye, tooth for tooth, hand for hand, foot for foot.’ The offence of the perjurer must be visually manifest on his body. No doubt this serves as a punishment for the offender, but the stress is laid upon the effects on the observer. They will continually be reminded of the offence, both of its iniquity and of the consequences of performing 53

Jackson (2000), 271–80; (2006), 197–9. Gen. 42: 16, though ultimately only Shimon suffers this fate: Gen. 42: 18, 24; the Egyptian dungeon where Joseph was himself imprisoned is itself described as a bor: Gen. 41: 14. 54

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it. The didactic function of the law is reflected in the stress on the iconic representation of the offence, there as a visual representation for all to see, and not merely as a punishment for the offender. Finally, some aspects of divine justice in the civil law (in modern terms: contract and torts) areas where we might perhaps expect the least interest from the perspective of divine law. The liabilities of a shepherd is a topic on which the ancient Near East has left a wealth of information about contractual practice,55 which may well provide useful background information against which to interpret the arrangements entered into by Jacob with Laban.56 But in deciding whether they (or the ancient Near Eastern code provisions) prompted the legal institutionalization of shepherding in Exod. 22: 9–12, we must also take into account the prophetic use of shepherding (like that of marriage) as a metaphor of the relationship between God and Israel, particularly that in Ezekiel 34, which provides a detailed account of the different standards of bad (human) shepherds and the good (divine) shepherd. What do we gain from viewing Exod. 22: 9–12 against this background? Human shepherds are now expected to be good (in not misappropriating the sheep) and careful (in guarding against theft), but not exemplary (in intervening against wild animals). Divine justice here provides a supererogatory standard, which puts the law in its proper place (as Jesus57 and the Rabbis58 equally appreciated). Indeed, this may prove relevant also to our understanding of the Jacob–Laban dispute, where the narrator was aware of this supererogatory standard and has Jacob claim to have complied with it.59 In the law on shepherding, as it now stands,60 there is an instance of institutional divine justice, in the form of the exculpatory oath taken where the animal has died or been ‘broken’ (nishbar) or ‘driven away’ (nishbah): Exod. 22: 9 (MT). Here, too, there is a hint of the ‘divine interest’ model. The (natural) death of the animal appears 55

See Finkelstein (1968), Postgate (1975), Morrison (1981). See further Jackson (2006), 352–3, 358, 365. Not only in general, but in the use of shepherding in the parables: see Jackson (2008), ch. 7. 58 On the relevance to models of divine justice of the integration of supererogatory standards in rabbinic law, see further Jackson (2010a) (concluding section). 59 See particularly Gen. 31: 39: ‘That which was torn by wild beasts (HPRU) I did not bring to you (YTABH AL)’, and compare the terminology with Exod. 22: 12: HPRUH DE WHABY. 60 I argue at Jackson (2006), 354–9 that the oath is not original. 56 57

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now to be conceived as a divine interest: we find an association of divine providence with bodily integrity in Ps. 34: 19–20, where the same verb, shavar, is used: ‘Many are the afflictions of the righteous; but the Lord delivers him out of them all. He keeps all his bones; not one of them is broken (nishbarah).’ The ‘divine interest’ in this case thus resides in the role of providence in the fate of the animal. The same idea underlies Exod. 21: 13, WDYL HNA OYHLAHW, where the victim is human. Nor are such ideas absent from the ancient Near East: LH 266 allows the herdsman to ‘purge (himself) before a god’ where ‘the finger of a god touches or a lion kills (a beast) in the fold’. Similar issues arise in the paragraph on the law of deposit (Exod. 22: 6–7). Both Philo and Josephus see a divine interest here. Philo (DSL iv. 30–3) describes the receiver as accepting ‘something sacred’ (λαβ!ν " #ερ$ν χρ%μα). Josephus is to similar effect (Ant. iv. 285–6): ‘Let the receiver of a deposit esteem it worthy of custody as of some sacred and divine object (&σπερ #ερον τι κα' θε(ο" χρ%μα).’ If the issue in the deposit law of Exod. 22: 6–7 were merely one of evidentiary difficulty, surely the first step would have been to search the depositee’s premises.61 We may conclude with a rabbinic application of divine justice in the law of torts (B.K. 55b):62 It was taught: R. Joshua said: There are four acts for which the offender is exempt from the judgments of Man but liable to the judgments of Heaven. They are these: To break down a fence in front of a neighbour’s animal [so that it gets out and does damage]; to bend over a neighbour’s standing corn in front of a fire; to hire false witnesses to give evidence; and to know of evidence in favour of another and not to testify on his behalf.

We may ask why the fence-breaker (RDG JRWPH), exempt as he was by human law, was threatened with divine judgement. The simple answer, that the threat of divine punishment if the offender did not pay up simply reflects his moral guilt, is not entirely satisfactory. The tannaitic sources are careful in their use of the concept of divine justice. We may appropriately apply here the methodology used above in relation to m. Sanh. 9: 5, in seeking the basis for dealing in

61 62

As we have argued (s. 2) in relation to Akhan’s misappropriation of the h.erem. See further Jackson (1974), reprinted in Jackson (1975), 250–67.

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this way with the porets geder on the basis of biblical sources.63 In two of the biblical bases of porets geder, Isa. 5: 5 and Ps. 80: 13, the breaking of the fence around the vineyard is a figurative expression of divine punishment of Israel. But there is also another, which was demonstrably influential in post-biblical times. Stressing the need for wisdom, Eccl. 10: 8 observes that he who breaks down a fence may be bitten by a snake, uforets gader yishkhenu nah.ash. The snakebite was taken as a divine punishment, and by amoraic times was regarded as the ‘snake of the Rabbis’ (seen earlier in t. Sanh. 8: 3), divine punishment for breach of rabbinic ordinances (b. Sheb. 110a). Indeed, Eccles. Rabbah (10: 11) observes: ‘Never does a snake bite . . . or a lion tear [its prey] . . . or a government interfere in men’s lives unless incited to do so from on high.’ ‘Breaking the fence’ also became a proverbial expression for various types of transgression.64

REFERENCES Danby, H. (1919), Tractate Sanhedrin. Mishnah and Tosefta (London: SPCK). Daube, D. (1956), The New Testament and Rabbinic Judaism (London: Athlone). Derrett, J. D. M. (1970), Law in the New Testament (London: Darton, Longman, Todd). Falk, Z. W. (1964), Hebrew Law in Biblical Times (Jerusalem: Wahrmann Books). Finkelstein, J. J. (1968), ‘An Old Babylonian Herding Contract and Genesis 31:38 f.’, JAOS 88: 30–6. 63 All the cases adduced in the talmudic sugya deserve careful study in this respect. The Gemara itself asks why the four eases of the baraita were singled out, and brings (but rejects) arguments against liability by the laws of heaven for each of them. In fact, all four cases have firm biblical roots. Hasokher is based on Exod. 23: 1 (arg., from Mekhilta and Mekhilta deRabbi Shimon ad loc., Pes. 118a, Makk. 23a); hayode’a on Lev. 5: 1; hakovesh on Deut. 24: 19. In all of these there is something in the biblical formulation to suggest divine jurisdiction. Possibly, the grouping of the four was suggested by Hos. 4: 2. 64 An extended usage of “fencing the breach” is to be found already in the Bible itself: Isa. 58: 12, Ezek. 22: 30, Amos 9: 11. The concept of breaking the fence was applied also to disturbances of the natural order. Commenting on Job 1: 9–10, R. Yose bar-H . anina observed that the herds of Job paretsu gedero shel ha‘olam, in that whereas normally (minhago shel olam) wolves killed goats, Job’s goats killed wolves (B. Bat. 15b).

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Fleishman, J. (2004), ‘Exodus 22:15–16 and Deuteronomy 22:28–29––Seduction and Rape? or Elopement and Abduction Marriage?’, in H. Gamoran (ed.), The Jerusalem 2002 Conference Volume (Binghamton, NY: Global Academic Publishing), 59–73. Fitzmyer, J. A. (1976), ‘The Matthaean Divorce Texts and Some New Palestinian Evidence’, TS 37: 197–226. —— (1998), To Advance the Gospels: New Testament Studies (2nd edn.; Grand Rapids: Eerdmans). Isaksson, A. (1965), Marriage and Ministry in the New Temple (Lund: Gleerup). Jackson, B. S. (1974), ‘The Fence-Breaker and the actio de pastu pecoris in Early Jewish Law’, JJS 25: 123–36. —— (1975), Essays in Jewish and Comparative Legal History (Leiden: E. J. Brill). —— (1998), ‘Truth or Proof?: The Criminal Verdict’, International Journal for the Semiotics of Law/Revue Internationale de Sémiotique Juridique 11/33: 227–73. —— (1999/2000), ‘Significato letterale. Semantica e narrativa nel diritto biblico e nella teoria contemporanea del diritto’, Ragion Pratica 12 (1999), 153–77; English version: ‘Literal Meaning: Semantics and Narrative in Biblical Law and Modern Jurisprudence’, International Journal for the Semiotics of Law/Revue Internationale de Sémiotique Juridique 13/4 (2000), 433–57. —— (2000), Studies in the Semiotics of Biblical Law (Sheffield: Sheffield Academic Press). —— (2004), ‘The Practice of Justice in Jewish Law’, Daimon 4: 31–48. —— (2006), Wisdom-Laws: A Study of the Mishpatim of Exodus 21:1–22:16 (Oxford: Oxford University Press). —— (2007a), ‘Human Law and Divine Justice in the Methodological Maze of the Mishpatim’, in E. Dorff (ed.), The Boston 2004 Conference Volume (Jewish Law Association Studies 16), 101–22. —— (2007b), ‘Gender Critical Observations on Tripartite Breeding Relationships in the Hebrew Bible’, in D. Rooke (ed.), A Question of Sex?: Gender and Difference in the Hebrew Bible and Related Literature (Sheffield: Sheffield Phoenix), 39–52. —— (2008), Essays on Halakhah in the New Testament (Leiden: Brill). —— (2009), ‘On Neusner’s Theology of Halakhah’, The Review of Rabbinic Judaism 12/1: 129–56. —— (2010a), ‘Human Law and Divine Justice: Towards the Institutionalisation of Halakhah’, JSIJ 9: 1–25. —— (2010b), ‘Marriage and Divorce: From Social Institution to Halakhic Norms’, in C. Hempel (ed.), The Dead Sea Scrolls: Texts and Context (Leiden: Brill), 339–64.

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—— (2011), ‘The “Institutions” of Marriage and Divorce in the Hebrew Bible’, JSSt LVI/2: 221–51. Kirschenbaum, A. (1991), ‘The Role of Punishment in Jewish Criminal Law: A Chapter in Rabbinic Penological Thought’, The Jewish Law Annual 9: 123–44. Morrison, M. A. (1981), ‘Evidence for Herdsmen and Animal Husbandry in the Nuzi Documents’, in M. A. Morrison and D. I. Owen (eds.), Studies on the Civilization and Culture of Nuzi and the Hurrians in Honor of Ernest R. Lacheman on his Seventy-Fifth Birthday (Winona Lake: Eisenbrauns), 257–96. Neusner, J. (2000), The Halakhah. An Encyclopaedia of the Law of Judaism (5 vols.; Leiden: Brill). —— (2001), The Theology of the Halakhah (Leiden: Brill). Noam, V. (2005), ‘Divorce in Qumran in Light of Early Halakhah’, JJS 56/2: 206–23. Postgate, J. N. (1975), ‘Some Old Babylonian Shepherds and their Flocks’, JSSt 20/1: 1–18. Schiffman, L. H. (1992), ‘Laws Pertaining to Women in the Temple Scroll’, in D. Dimant and U. Rappaport (eds.), The Dead Sea Scrolls: Forty Years of Research (Leiden: E. J. Brill), 210–18. Segal, P. (1991), ‘Postbiblical Jewish Criminal Law and Theology’, The Jewish Law Annual 9, 107–21. Winter, P. (1956), ‘Sadoqite Fragments IV 20, 21 and the Exegesis of Genesis I 27 in Late Judaism’, ZAW 68: 71–84.

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9 The History of the Legal-Religious Hermeneutics of the Book of Deuteronomy from the Assyrian to the Hellenistic Period Eckart Otto

The book of Deuteronomy is, together with the Priestly Code (P), the ‘cradle’ not only of the Pentateuch but also of the Former Prophets, i.e. of a literary horizon from Genesis to 2 Kings. The literary history of the book of Deuteronomy began in the seventh century bce in the Josianic period and ended with Moses’ song and its framework in Deuteronomy 31–32 in the fourth or early third century bce in the process of canon-formation. This chapter will reconstruct the literary history of the book of Deuteronomy of four centuries and the meaning of its literary history for the legal history of the Hebrew Bible.1 How were changes in the legal history initiated by programmes of the book of Deuteronomy and how did it, in turn, react to developments in the legal history of four hundred years? At the end we shall see that there was an intense dialectic between literary and legal history in the book of Deuteronomy. This means that it is impossible to study the Torah based only on one of these aspects The manuscript was completed in April 2009. Secondary literature published after that date has not been incorporated. 1 For an outline of the literary history of the Torah and the Former Prophets cf. Schmid (2008). For the actual state of the debate about the book of Deuteronomy cf. Veijola (2002), 273–327 and Otto (2009a), 229–47, about the Pentateuch cf. Otto (2007a and b). This article will give an outline of some diachronic aspects of my commentary on the book of Deuteronomy, which will be published by Herder/ Freiburg in the series ‘Herders Theologischer Kommentar zum Alten Testament’ (HThK.AT).

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while neglecting the other one. The final form of the Torah implies a sophisticated legal hermeneutics in order to correlate the different legal material of the Pentateuch. But before we can come to these final perspectives of the Torah and the function of the book of Deuteronomy within this final shape of the legal hermeneutics of the Torah, we have to describe the literary history of the book of Deuteronomy in relation to its legal-historical contexts.

I. THE LITERARY ORIGIN OF THE PRE-EXILIC BOOK OF DEUTERONOMY REVISING AND SUPPLEMENTING THE COVENANT CODE IN THE ASSYRIAN PERIOD The Covenant Code in Exod. 20: 22–23: 132 was redacted using two originally independent collections of legal material in Exod. 20: 24–6; 21: 2–22: 26* and Exod. 22: 28–23: 12*, which were each formed by smaller thematically coherent collections, e.g. of laws of bodily injuries in Exod. 21: 18–32 and laws of material damages in Exod. 21: 33–22: 14.3 Pre-exilic authors of the eighth or early seventh century bce formed the Covenant Code probably in the period of Hezekiah. The method of redaction of the Covenant Code resembled the redaction of collections of cuneiform laws in Mesopotamia. Also the laws of Esˇnunna and of Hammurapi were redacted using smaller collections of thematically coherent legal material.4 The final redaction of the Covenant Code framed it by laws of a 6/7-scheme in Exod. 21: 2–11 and Exod. 23: 10–12, which were part of a religious ‘Privilegrecht’ (law of divine privilege). These laws interpreted the whole Covenant Code theologically as divine law and YHWH as the only source of the laws. This religious interpretation of law was connected with social aspects of the care for the poor.5 The Covenant 2

For the literary and legal history of the Covenant Code cf. Otto (1988), (2010a). For the hypothesis of the origins of misˇpatim as self-executing ‘wisdom law’ cf. Jackson (2006a) and the critical review by Tomes (2008) and Otto (2006a), 78–83; cf. the reply by Jackson (2008a). For the semiotic approach of Jackson 2000 to biblical law of the Covenant Code cf. Otto (2003). 4 Cf. Otto (1989); id. (2008), 83–119; id. (2010a). For an attempt to explain the parallels in the techniques of redactions of law collections in the Ancient Near East and the Covenant Code cf. Otto (1991a), 165–87; id. (2010a). 5 For the religious legitimization of law in the Covenant Code and its parallels in prophetic literature cf. Otto (1994a), 81–116. For the theological meaning of the 6/7-scheme cf. Otto (2004a), 355–7. 3

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Code of the eighth or seventh century, graphicly depicted, has the structure shown at Fig. 9.1,6 which demonstrates the fundamental meaning of the frame of the laws of divine privilege. The frame had the function of subordinating all the other laws of the Covenant Code, which were not explicitly religiously legitimized, to the divine privilege as the only legal source. The pre-exilic book of Deuteronomy of the Josianic period in Deuteronomy 12–26* was a revision and supplement of the Covenant Code. The main problem in the discussion of the literary relation between the Covenant Code and the pre-exilic book of Deuteronomy is whether the intention of the authors of the latter was to replace the Covenant Code or to supplement it. Already half a century ago O. Eißfeldt formulated the problem: ‘Aber D [sc. the book of Deuteronomy] folgt nicht nur zeitlich auf B [sc. the Covenant Code], sondern es ist auch inhaltlich durch B bestimmt, und zwar in dem doppelten Sinne, daß es viel aus B oder aber aus einer ihm mit B gemeinsamen Vorlage übernommen hat und so––freilich in stark übertreibendem Ausdruck––geradezu als eine Erweiterung von B bezeichnet werden konnte, und daß es andererseits deutlich im Gegensatz zu B steht und sich an seine Stelle setzen will’.7 Some scholars, e.g. B. M. Levinson8 and J. Stackert,9 favour the interpretation that the authors of the book of Deuteronomy intended to replace the Covenant Code. But already Eißfeldt was aware of the fact that the relation between the Covenant Code and the book of Deuteronomy was more complicated than the thesis––that Deuteronomy was just ‘recycling’ the Covenant Code––allowed, because the book of Deuteronomy was not only revising the laws of the Covenant Code but also supplemented them. If we want to understand the complex relations between these two legal corpora, we have to correlate the aspect of supplementation of the Covenant Code by the book of Deuteronomy with that of revision and ask for the legal hermeneutics of these aspects. The pre-exilic book of Deuteronomy comprised Deut. 6: 4–5*; 12: 13–27*; 13: 2–12*; 6

For a legal-historical interpretation of this structure cf. Otto (2008), 341–66. For a related proposal to structure the Covenant Code cf. Schwienhorst-Schönberger (1990), 23; cf. the review of this monograph by Otto (1991b). 7 Cf. Eißfeldt (1964), 292. 8 Cf. Levinson (1997); cf. the review by Otto (2008), 496–506 and n. 22 of this chapter. 9 Cf. Stackert (2007); cf. the review by Otto (2009a), 248–56 and n. 22 of this chapter.

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Fig. 9.1. Structure of the Covenant Code.

14: 22–15: 23; 16: 1–17; 16: 18–18: 5*; 19: 2–13*, 15–21: 23*; 22: 1–12*, 13–29; 23: 16–26; 24: 1–4, 6–25: 4*, 5–10, 11–12; 26: 2–13*, 20–44*.10 It was not yet connected with the figure of Moses nor with the Horeb- and Moab-Covenants, that became part of the book of Deuteronomy in the exilic period.11 Deuteronomy 12* and Deuteronomy 13* functioned in the pre-exilic book of Deuteronomy as a kind of Hauptgebot (principal regulation) for the deuteronomic collection of laws. Its position corresponded to that of the altar-law in the Covenant Code and the centralization law in Deut. 12: 13–19* was a direct literary reformulation of the pre-exilic altar law of the 10 Cf. Otto (1999), 203–378, and (2000), 110–274 for more details of the literary critical analysis of the book of Deuteronomy differentiating between the pre-exilicdeuteronomic, the exilic-deuteronomistic, and the post-exilic–post-deuteronomistic texts within the book of Deuteronomy. 11 See sect. II.

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Covenant Code in Exod. 20: 24.12 The sequence of the following laws in Deuteronomy 14–26* was also derived from the Covenant Code.13 The deuteronomic framework of social laws of divine privilege in a 6/7-scheme in Deut. 14: 22–15: 23* and Deut. 26: 2–13* followed the principal regulations in Deuteronomy 12–13* and received this way the same position as the frame of the Covenant Code following the altar law. As in the Covenant Code the frame comprised a courtsystem in Deut. 16: 18–19*; 17: 2–13*; 18: 1–8*, a law-system in Deuteronomy 19–25* and a festival-order in Deut. 16: 1–17 that transformed the core section of Exod. 34: 18–26* and the appendix to the Covenant Code in Exod. 23: 14–19.14 The fact that the order of festivals got the front position after the frame in the book of Deuteronomy is a clear signal that the motif of cult-centralization was most important for the authors of the pre-exilic book of Deuteronomy in their revision of the structure of the Covenant Code. Since the centralization law in Deuteronomy 12* had a direct impact on the order of festivals in Deut. 16: 1–17*, the cultcentralization was their hermeneutical key for restructuring the Covenant Code (Fig. 9.2). The centralization law in Deuteronomy 12* was the hermeneutical key for the revision of the structure of the Covenant Code in the book of Deuteronomy. The laws of slaves and sˇemit.t.a¯ in Exod. 21: 2– 11; 23: 10–12, which framed the Covenant Code, were transferred to the centre of the frame of the laws of divine privilege in Deut. 14: 22– 15: 23, whereas the deuteronomic laws of tithe and firstborn, which imply functions of the cultic place, formed the outer frame of the laws of divine privilege in Deut. 14: 22–15: 23. The laws of tithe in Deut. 14: 22–7 and Deut. 15: 19–22 were set as the framework for the deuteronomic frame in Deut. 14: 22–15: 23 because they connected it with the deuteronomic law of centralization in Deuteronomy 12, 13–27*, on the one hand, and the festival-order in Deut. 16: 1–17,

12

Cf. Lohfink (1991a); Reuter (1993), 115–38; Otto (1999), 324–51. See already Otto (1993). It does not suffice to restrict the discussion of the relationship between the Covenant Code and the book of Deuteronomy to the level of single sentences, but the structures of the redactions of the corpora have to be the starting point of comparisons. Only on this basis can attempts to invert the dependency of the book of Deuteronomy on the Covenant Code be definitely falsified; pace Van Seters (2003); cf. the review of this monograph by Otto (2004c). 14 For a discussion of the literary relation between Deut. 16, Exod. 23: 14–19 and Exod. 34: 18–26 cf. Otto (2009a), 196–201. 13

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Fig. 9.2. Restructure of the Covenant Code in Deuteronomy.

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which also directly depended on the centralization laws in Deuteronomy 12*, on the other hand. Also for the revision of the individual laws the centralization law was functioning as a hermeneutical key. The unusual sequence of ’sˇr and the following w ekî in Exod. 21: 13–14 was the result of a literary process of supplementing Exod. 21: 12 as a general rule for all the cases of killing by legal differentiation into the cases of fatal bodily injury and murder in Exod. 21: 13–14. In the revision of Exod. 21: 12–14 in Deut. 19: 3b, 4–6, 10–13 the sequence of ’sˇr and w ekî in Deut. 19: 4b, 5, 11 was adopted.15 but the order of the cases was reversed in Deuteronomy 19*. In the Covenant Code the general rule for cases of killing was followed by the differentiations into cases of murder and fatal injuries. In Deut. 19: 2–13* these differentiations were transferred to a front position, because the revision of the altar-asylum in Exod. 21: 13–14 by the installation of towns of asylum in Deuteronomy 19* was a direct consequence of the cultcentralization in Deuteronomy 12*, which was the most important aspect of the revision. But the deuteronomic authors of Deut. 19: 2–13* did not change the form-critically unusual sequence of ’sˇr and w ekî because they intended to hint at the fact that Deut. 19: 2–13* was directly derived from Exod. 21: 12–14 in the Covenant Code and that Deut. 19: 2–13* was a revisionary exegesis of Exod. 21: 12–14. In Deut. 19: 2–13* the deuteronomic authors used the authority of the Covenant Code in order to legitimize their revision of the asylum-regulation in Exod. 21: 13–14 according to Deuteronomy 12*. The quotation-formula in Deut. 19: 4 underlined this dialectic of authority and revision in the deuteronomic reception of the Covenant Code. The deuteronomic authors were far away from the idea that the Covenant Code should be ‘recycled’, i.e. far away from the idea that the revising text should replace the revised text, because if this were the case, it would make more sense just to write a new text without mentioning and making use of the revised text. The method of the deuteronomic authors in Deut. 19: 2–13* was as simple as it was ingenious: the revision of the asylum-regulations by the idea of towns of asylum in Deut. 19: 2–13* left open a decisive 15 Cf. Gertz (1994), 127–30. For a detailed analysis of the legal institution of asylum in the Hebrew Bible and the Orient cf. Ruwe (2000); Traulsen (2004); Staszak (2006); Dietrich (2008). For a critical review of the monograph by Barmash (2005) cf. Jackson (2006b) and of the monograph by Stackert (2007) cf. Otto (2009a), 248–56.

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problem, because Deut. 19: 2–13* did not mention anything about the asylum-function of the central sanctuary described in Deuteronomy 12*. The deuteronomic authors read Exod. 21: 12–14 together with its revision in Deut. 19: 2–13 and interpreted Exod. 21: 13 ‘I will appoint you a place (maqôm), to which you may flee’, which dealt in the context of the Covenant Code with the local shrines, as a regulation for the central sanctuary. maqôm was terminus technicus for the local and the central sanctuary, as was demonstrated by the centralization-formula ‘the maqôm, where YHWH, your God, has chosen to put His name’ (Deut. 12: 21). Read through the glasses of the centralization-formula Exod. 21: 13–14 dealt no longer with local shrines but with the central sanctuary, whereas Deut. 19: 2–13* dealt with the towns of asylum in the rural countryside, which replaced the local shrines. Exod. 21: 12–14 and Deut. 19: 2–13* were interpreted as a unit of the revised and revising text. Deut. 19: 2–13* read alone without its counterpart was deficient in a legal collection with a law of cult-centralization as a Hauptgebot (principal regulation), because in the book of Deuteronomy no hint was given at the asylum-function of this central sanctuary or that there should no longer be an asylum-function connected with this sanctuary.16 The Covenant Code kept its authority for the deuteronomic authors regulating the asylum of this sanctuary, whereas Deut. 19: 2–13* regulated the consequences of the cult-centralization for the institution of cultic asylum, since there were no longer local shrines, by transferring their function to towns of asylum. This example also explicates the hermeneutics of the dialectic of authority and revision of the revised text. For the authors of the pre-exilic book of Deuteronomy the revising text was the hermeneutical key for the interpretation of the revised texts, i.e. they read the asylum-law in Exod. 21: 12–14 through the glasses of the deuteronomic centralization-formula. The Covenant Code was not replaced by the pre-exilic book of Deuteronomy, which would not function without the Covenant Code. Deuteronomy was the legal interpretation of the 16 This is the thesis of Dietrich (2008), 70–2, 139–40, 211, who pleads for an interruption of the asylum-function of the temple of Jerusalem during the Josianic reform. But if this was the intention of the revision of Exod. 21: 12–14 in Deut. 19* one could expect that this would be mentioned by the authors of the book of Deuteronomy. Moreover, Dietrich is of the opinion that after Josiah’s death the asylum-function was again restored to the temple of Jerusalem; cf. Otto (2008), 468–74 and (2009f ), 456–8.

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Covenant Code supplementing it. The same unity of revising and revised text can be observed with the altar-law of the Covenant Code in Exod. 20: 24–6 and the deuteronomic centralization-law in Deut. 12: 13–27* including the pre-exilic centralization-formula. The authors of the pre-exilic book of Deuteronomy read the altar-law of the Covenant Code in Exod. 20: 24–6 through the glasses of the deuteronomic centralization-formula, which made use of the altarlaw of the Covenant Code. beka¯l hamma¯qôm  asˇaer  azkîr  aet sˇemî could be read grammatically correctly in two ways so that it was ambivalent in its meaning. In the pre-deuteronomic Covenant Code beka¯l + determined genitive had a distributive meaning, ‘each place’. But grammatically even more obvious was the meaning of ‘all the place’, reading it in correspondence with the deuteronomic centralization-law and interpreted as an expression of totality referring to the central sanctuary. The deuteronomic authors read the altar-law of the Covenant Code and the centralization-law of the book of Deuteronomy as a legal unit17, so that there was no reason to suppose that the Covenant Code should be replaced by the book of Deuteronomy. Again for the authors of the pre-exilic book of Deuteronomy the deuteronomic centralization-law in Deuteronomy 12* was an exegetical explanation and supplement of the predeuteronomic altar-law of the Covenant Code, which was not replaced, but they used the Covenant Code as a source for legitimizing their deuteronomic programme of a cult-centralization. We can observe the same legal relationship with other legal regulations of the Covenant Code and their revisions in the pre-exilic book of Deuteronomy, so e.g. with the slave law in Exod. 21: 2–11 in relation to Deut. 15: 12–18, with Exod. 23: 1–3, 6–8 in relation to Deut. 16: 18–18: 5* and with Exod. 23: 4–5 in relation to Deut. 22: 1–4.18 The laws of the Covenant Code were revised in Deuteronomy under the perspective of cult-centralization. The thematic group of ethical rules with a social concern in Exod. 22: 20–6 and Exod. 23: 4–519 was adopted in the pre-exilic book of Deuteronomy, because the deuteronomic authors intended in this 17 Cf. Veijola (2004), 264–5. This implies that there is no reason for any literary critical operation in Exod. 21: 24; pace the different literary critical operations of Levin (2000) and Van Seters (2006). 18 Cf. Otto (1999), 238–49, 282–5, 303–11, and (2008), 464–85. 19 Cf. Otto (1988), 38–40, 45–6, 49–51, and (1994a), 81–103; Barbiero (1991), 15–130.

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way to legitimize their own programme of a brotherly and sisterly ethic.20 The laws of the Covenant Code, which were not made use of in the pre-exilic book of Deuteronomy, i.e. the laws of material damages and bodily injuries in Exod. 21: 18–22: 14, and which had no thematic point of contact with the deuteronomic centralizationlaw, were supplemented by a collection of family laws in Deut. 21: 15–21; 22: 13–29; 24: 1–4, 5; 25: 5–10, because in the Covenant Code there was only one single family law in Exod. 21: 15–16. On the other hand, there was no law of bodily injuries in the book of Deuteronomy except from Deut. 25: 11–12, which had no counterpart in the Covenant Code and came from an Assyrian legal background into the book of Deuteronomy.21 So we can summarize the rules of revision and supplementation of the Covenant Code by the pre-exilic book of Deuteronomy: The laws of the Covenant Code, which imply functions of the local sanctuaries, were adopted in the deuteronomic Deuteronomy and revised under the perspective of the cult-centralization (Deut. 12: 13–27*), so that the revising law became the hermeneutical key for the interpretation of the revised law of the Covenant Code, which meant that the revising and revised laws formed a legal unit of one law. Due to the programme of brotherly and sisterly social ethics, the deuteronomic authors of the book of Deuteronomy also made use of all the rules of social ethics in the Covenant Code in order to legitimize their own programme. For the authors of the pre-exilic Deuteronomy, the Covenant Code had a high degree of authority so that they avoided tensions between the revising laws in the book of Deuteronomy and the revised laws in the Covenant Code in favour of a relation of mutual interpretation. It was in that way that the revising text became the hermeneutical key for the interpretation of the revised text. There was no intention to ‘recycle’ the Covenant Code, because its authority was needed and used to legitimize the programme of the pre-exilic book of Deuteronomy including the pre-exilic idea of a cult-centralization. Of those parts of the Covenant Code that had no meaning for this deuteronomic programme, the deuteronomic authors made no use, but these parts supplemented each other. In the Covenant Code full-length 20 For this programme in its pre-exilic context of the 7th century cf. Otto (1994a), 175–92, and (2002a), 92–275; Sweeney (2001), 137–69. For the socio-historical background of this programme cf. also Halpern (1991); Na’aman (2008). 21 Cf. Paul (1990), 335–9; Otto (1999), 274, 300, 353.

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collections of laws of bodily injuries and material damages were integrated, that had no counterpart in Deuteronomy on the one hand, and in Deuteronomy an elaborate collection of family laws was included, which had no equivalent in the Covenant Code. The mutual supplementation of the Covenant Code and of the book of Deuteronomy vice versa excluded an intention of the authors of the pre-exilic book of Deuteronomy to replace the Covenant Code.22 The pre-exilic book of Deuteronomy as a revision of the Covenant Code was not an isolated case in the legal history of the Ancient Near East. In addition to the legal reform of Uru-Inimgina at the beginning of Mesopotamian legal history, the Hittite law collection was a revision of older legal regulations and also the Middle Assyrian Laws were an example of ancient legal revisions: An older form of criminal law of self-help by families was overcome by legal procedures at the institution of courts.23 The task now remains to date this deuteronomic book of Deuteronomy, which started from its very beginning as a reformulating supplement of the pre-exilic Covenant Code. For the great majority of scholars worldwide working in the field of Deuteronomy, it is accepted that there was a neo-Assyrian influence on the book. It is only the nature of this influence that can be debated––whether there was a direct literary dependence on texts of Assyrian royal ideology, especially of the loyalty oath of Esarhaddon (VTE), or whether there was a more indirect Assyrian influence intertwined with motives of Aramaic or even Hittite origin on the book of Deuteronomy. In regard to these positions it can be debated whether these adaptions were the result of a kind of ‘subversive’ 22 Cf. Otto (1996a), 112–22; id. (2008), 496–506; id. (2009a), 248–56, and also Najman (2003), 1–16; pace Levinson (1997) and Stackert (2007). 23 Cf. Otto (2008), 192–309. Also Saporetti (2008), 462–3 speaks of cases of a ‘giustizia privata’ in MAL.A. The analysis of the Middle-Assyrian laws proved that the book of Deuteronomy as a programme of legal revision was no exception in ANE legal history but a special case of a more universal ANE tradition. As a result of this analysis there also were revealed some astonishing correspondences in the method of redaction of laws in the MAL and in the collection of family laws in the pre-exilic book of Deuteronomy, which demand an explanation. The most probable explanation is the assumption that a tradition of legal redaction techniques in the ANE collections of laws was also known in Judah; cf. Otto (2010a). But apart from this special aspect, one can agree to the critical attitude of S. Jackson (2008b) towards hypotheses of a direct transformation of the laws of Hammurapi in the Covenant Code or of a uniform legal tradition of a ‘common law’ in the Ancient Near East including the biblical law.

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attitude to the Assyrian royal idea, or an expression of the intention to ‘modernize’ the Judaean religion. Most scholars date these processes of making use of motifs of Assyrian royal ideology to the late pre-exilic period of Judah, especially to the time of the king Josiah.24 The superscription of the pre-exilic Deuteronomy in Deut. 6: 4 f., the idea of cult-centralization in Deut. 12: 13–27*, the canon-formula in Deut. 13: 1, the obligation of absolute loyalty to YHWH in Deut. 13: 2–10*, and the curses in Deut. 28: 20–44 were deeply influenced by Assyrian motives.25 A counterposition dating this influence of the Assyrian royal ideology to a post-Assyrian, i.e. exilic or even postexilic period is confronted with the difficulty that the decisive texts of the neo-Assyrian royal ideology had no late-Babylonian or Persian afterlife, and even if Judaeans would have had access to texts of Assyrian royal ideology in post-Assyrian times, there was no reason for them to return to this Assyrian ideology, when it was already politically overcome, outdated, and no longer of any relevance. This makes the reception of these Assyrian motifs by exilic or even postexilic Judaeans and the influence of these motifs on the book of Deuteronomy in the exilic or post-exilic period rather improbable.26 The neo-Assyrian impact on the pre-exilic Deuteronomy is most plausibly explained by dating the pre-deuteronomistic book of Deuteronomy to the late pre-exilic period. This dating is supported by the close theological connections between the pre-exilic Covenant Code and the pre-deuteronomistic book of Deuteronomy. Their programmes of social ethics were identical in their substance and legitimation by divine privilege, and the authors of the predeuteronomistic book of Deuteronomy used the Covenant Code also in order to legitimize their programme of cult-centralization by using the altar-law of the Covenant Code. The historical context of 24 Cf. e.g. Frankena (1965); Weinfeld (1972); Dion (1991); Steymans (1995) and (2006); Krebernik (1995); Levinson (1995); Otto (1999), 15–90; Römer (2005), 74–81; Radner (2006); Blanco Wißmann (2008), 16–24. 25 For further Mesopotamian and especially Assyrian legal influence on the laws and ethical rules on Deuteronomy 12–26* cf. Otto (2002a), 92–275. For the Assyrian influence on the professionalized court-system of the Josianic period (Deut. 16: 18 f.; 17: 2–13*) cf. also Gertz (1994), 82–4. That there were different ways of making use of Assyrian motifs in pre-exilic Judaean literature demonstrates the comparison with royal psalms; cf. Steymans (1998); Arneth (2000), 54–108; Otto (2004b). For the Assyrian influence on the pre-priestly Moses-Exodus narrative cf. Otto (2009a), 9–45. For the prophetic literature cf. de Jong (2007), 287–442. 26 Pace Koch (2008); cf. the review of this monograph by Otto (2010b).

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the origin of this idea of cult-centralization was pre-exilic, which is proved by the pre-exilic deuteronomistic account in 2 Kings 23.

II. CULT-CENTRALIZATION IN THE BOOK OF DEUTERONOMY AND THE PRE-EXILIC DEUTERONOMISTIC PROGRAMME OF THE CULT-REFORM BY KING JOSIAH IN 2 KINGS 23* Dating the motif of cult-centralization in the book of Deuteronomy, which means, strictly speaking, the idea of centralization of sacrifices, includes the task of dealing with the literary origin of the book of Deuteronomy, because there was no book of Deuteronomy earlier than the programme of cult-centralization27 as hermeneutical key for the revision of the Covenant Code. This means that there was no ‘pre-centralized’ book of Deuteronomy, because there was no book of Deuteronomy without the Covenant Code. So we must ask if there was a pre-exilic book of Deuteronomy in Deut. 6: 4–5; 12–26*; 28*, or if the origin of this book was only exilic or even post-exilic. The dice will be cast not only in the field of dating the book of Deuteronomy but also of dating the Deuteronomistic History in 1 Sam. 1: 1–2 Kgs. 23: 25*.28 Most scholars of the international discussion of a ‘Deuteronomistic History’ (DtrH) in the last fifty years came to the result that M. Noth’s hypothesis of a DtrH from Deuteronomy 1–2 Kings 25 was literary-historically too undifferentiated to really be convincing. One of the main problems of Noth’s theory was the definite isolation of the book of Deuteronomy from its context in the Pentateuch,29 where it had a constitutive function because there was never a Hexateuch or a Pentateuch without a book of Deuteronomy. Following the international discussion after the breakthrough by F. M. Cross,30 more and more German-speaking 27 Cf. Reuter (1993), 189–91, who also convincingly refused the possibility of reconstructing a vorzentralistisches (pre-centralized) book of Deuteronomy; cf. also Otto (1999), 203–378. 28 For a survey of the history of research cf. Veijola (2002), 273–327, 391–402; Römer (2005), 13–43; Braulik (2008a); Otto (2015) and (2013). 29 Cf. sect. IV and Frevel (2004). 30 Cf. Cross (1973) and also e.g. Nelson (1981); Knoppers (1994); O’Brien (1992); Halpern and Vanderhooft (1991), 179–244; McKenzie (1991); Eynikel (1996); Campbell and O’Brian (2000); Sweeney (2001) and (2007), 15–20, 434–50; Cortese (2001), 195–331; Römer (2005), 67–106 and (2006).

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Old Testament scholars realized that the restriction of dating deuteronomistic layers or parts of a DtrH only to the exilic and postexilic periods did not explain a great number of observations in the book of Kings, thereby proving a pre-exilic date of an originally deuteronomistic layer in this book,31 such that more and more scholars are turning back to A. Kuenen, J. Wellhausen, and A. Jepsen.32 The more positive judgements of the kings of Judah than of the kings of Israel and the entirely positive judgement of King Josiah in 2 Kgs. 23: 5* will be best explained by the assumption that the first deuteronomistic authors were writing in the Josianic period. Only the judgements of Kings in 2 Kgs. 23: 32, 37; 24: 9, 19, which differed in language and ideology from the judgements of the Josianic period, were added in the exilic period and undermined the positive judgement on Josiah in 2 Kgs. 23: 25*33 in order to explain the catastrophe of the exile. In 2 Kings 17 the deuteronomistic base text still presupposed the existence of the state of Judah and was composed in the late pre-exilic period. Also the formula ‘until this day’ in 2 Kgs. 8: 22; 14: 7; 16: 6 had a pre-exilic background.34 1 Kgs. 11: 13, 32, 36; 15: 4; 2 Kgs. 8: 19 gave a divine guarantee for the Davidic dynasty. This made more sense in the pre-exilic than in the exilic period and was based on the pre-exilic core-section of 2 Samuel 7*.35 So there are rather strong arguments to assume a pre-exilic deuteronomistic history from 1 Sam. 1: 1–2 Kgs. 23: 25*. For the authors of this pre-exilic deuteronomistic DtrH 2 Kgs. 23: 25* was the completion of a narrative, which began with Samuel and Saul’s kingdom. The authors intended to legitimize Josiah’s political programme to unite all of ‘Israel’, i.e. Judah and the northern territory of the previous state of Israel, with Jerusalem as its 31 Cf. Lohfink (1991b); Schmid (2006) and (2008), 80–6; Stipp (2006); Braulik (2008a), 191–202; Otto (2015). 32 Cf. Kuenen (1892), 90–1; Wellhausen (1899), 298; Jepsen (1953). 33 Cf. Vanoni (1985); pace Aurelius (2003), 39–56; cf. Schmid (2006), 34–6: ‘Auch bei Aurelius darf man aber fragen, ob der Nachweis, dass sich die Königsbeurteilungen nach Josia von den vorangehenden nicht absetzen, wirklich geglückt ist’; cf. also Otto (2009a), 605–7. 34 Cf. Cogan and Tadmor (1988), 96, 214; Geoghegan (2003) and (2006); Sweeney (2007), 19–20 (also for the pre-exilic layer of 2 Kings 17). 35 Cf. Schniedewind (1999), 51–97; McKenzie (1991), 117–34. A pre-exilic date of this function of 2 Sam. 7 in a DtrH makes more sense than to suppose that exilic circles intended to legitimize their hope for a revival of the Davidic dynasty. This thesis presupposes the exilic dating of DtrH and is in danger of being a vicious circle; pace Oswald (2008), 86–101.

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centre by the fiction that this kind of ideal Israel was already realized during the reign of David and Solomon. So the authors used a typical Ancient Near Eastern motif of a king arranging a cult-reform,36 and they especially used neo-Assyrian descriptions of cult-reforms for the narrative of the Josianic cult-reform37 as an action of purification of the cult in Jerusalem from Aramaean and Assyrian influences38 and of a centralization of legitimate sacrifices at this temple in order to express the predominant political and cultic role of Jerusalem in the expected new Israel. The authors of the pre-exilic DtrH used for their narrative of Josiah’s cult-reform a description of this reform in 2 Kgs. 23: 1–14*, which was originally a literarily independent source for the pre-exilic Deuteronomists,39 and integrated it into its pre-exilic deuteronomistic context by 2 Kgs. 23: 5aβγ. 8a. 9. 15.40 The original programme of the cult-reform in 2 Kgs. 23: 1–14* was limited only to Jerusalem and its surroundings. The authors of the pre-exilic Josianic DtrH had the broader perspective that also the northern sanctuary of Bethel should be included into this reform. The late pre-exilic authors of the book of Deuteronomy extended the programme of cult-centralization to all of Israel in Deut. 12: 13–27*. The pre-deuteronomistic account in 2 Kgs. 23: 1–14* proves that the Josianic period was the most plausible historical context for the programme of cult-centralization in the

36

Cf. Na’aman (2006). Cf. Arneth (2007a), 267–74; De Jong (2007), 361–78. 38 Cf. Uehlinger (1995). 39 Even if one follows Blanco Wißmann (2008), 213–23 that the DtrH had a certain background in the neo-Babylonian chronicles and dates DtrH to the exilic period, it does not affect our argument because the source used in 2 Kgs. 23: 1–14* was at any rate pre-exilic, so that also the idea of cult-centralization was a pre-exilic programmatic idea. That the deuteronomistic authors were writing in a preexilic literary context becomes clear from 2 Kgs. 23: 3. This type of covenant is a preexilic one, because it is a covenant which was made before YHWH and not with YHWH so that YHWH still had the function of a witness but not of a partner of the covenant. This type of covenant was also well known in Assyria; cf. Rassam-Cylinder (prisma A I 21 and prisma F I 16); cf. Borger (1996), 15–16 and Otto (1999), 18–20. For the literary history of the covenant-motif cf. Perlitt (1969); Nicholson (1986); Otto (1998). 40 Cf. Otto (2001); Arneth (2007a), 250–66. K. Schmid (2004a), 322 and (2006), 28–36, convincingly rebutted the minimalistic approaches to 2 Kings 23 by Spieckermann (1982), 79–130; Levin (1984), 351–71; Kratz (2000), 164–5, and Aurelius (2003), 45–7. 2 Kings 23 was not at all a literary ‘cloaca maxima’ (Levin (1984), 357). 37

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book of Deuteronomy.41 In this pre-exilic period there flourished a broad literature on this topic, and the book of the pre-exilic Deuteronomy was part of it. The Assyrian impact on Deuteronomy is the one pivotal point for dating its origin to the seventh century. The network of pre-deuteronomistic and deuteronomistic literature of the time of King Josiah in 2 Kings 23 is the other. The account of a Josianic cult-reform and the centralization-law in Deuteronomy 12* was, in the perspective of the pre-exilic authors, just a programme in the book of Kings and in the book of Deuteronomy. Part of this idealistic programme of the book of Deuteronomy was the idea of a people that derived its identity from the temple and not the king. One of the reasons for this idea was the opposition of the authors of the book of Deuteronomy to the Assyrian type of state with the king functioning as a tool of the divine pantheon. That there was no king in the deuteronomic Deuteronomy is not a sufficient reason for dating it to the exilic period, because the priestly programme of the pre-exilic book of Deuteronomy followed the pre-exilic programmatic Covenant Code, which also tried to unify the Judaean society without mentioning the king. It is a ‘myth’ that a legal text that did not mention the king had to be exilic or post-exilic.42 That 41 So also e.g. Weinfeld (1991), 65–84; Nielsen (1995), 9–11; Schniedewind (1999), 72–97, and (2004), 161–2; Sweeney (2001), 136–68, and (2007), 434–50; Rofé (2002), 4–9; García López (2003), 270–317; Römer (2004), 168–72, and esp. Veijola (2004), 264–5, who referred to Wellhausen (1927), 34–5 It was a wise decision of T. Veijola to keep to this common sense of the history of research of the last one hundred years and to defend a pre-exilic Josianic ‘Ur-Deuteronomium’ although he favours the perspective of deuteronomistic expansions of Deuteronomy. A late dating of the idea of cult-centralization to the exilic period––so Kratz (2000), 137, who interprets it as ‘absonderlich und singulär in der altorientalischen Welt’ and a reaction to the catastrophe of 587/6 bce––is confronted with the difficulty of explaining the origin of Deuteronomy 12–26 as exilic, because it did not make sense to revise the Covenant Code according to the centralization of a cult that did not exist. If one wants to interpret Deuteronomy 12* as a reaction to a catastrophe it was the downfall of Samaria 722–720 bce. For ANE and especially Assyrian analogies to the deuteronomic idea of cult-centralization cf. Maul (1997); Otto (1999), 350–1; Rüterswörden (2006), 81–2. K. Schmid convincingly rebutted the late dating of the origin of the idea of cult-centralization in Deuteronomy 12* to the exilic period; cf. Schmid (2004a), 322, and (2006), 35. For the earlier attempts for a late dating of the origins of Deuteronomy cf. e.g. Kennett (1920, 1928) and Hölscher (1922). Their attempts failed and should not be renewed. 42 Pace Davies (2007), 145. At the same time the circles of authors of the book of Deuteronomy also transmitted the pre-exilic stories of the ‘charismatic leaders’, which we find now in the post-exilic book of Judges. In these stories the pre-exilic authors also dealt with an Israel without a king. The pre-exilic Deuteronomy was not

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the ‘temple’ at Bethel was still alive before and after Josiah, even during the late-Babylonian period and perhaps as the temple at Elephantine in the Persian period,43 does not say anything about the pre-exilic programme of cult-centralization, because 2 Kgs. 23: 1–14*, (15) were programmatic texts, which remained programmatic directly because of Josiah’s unexpected death in 609 bce and the changing political situation around that year. It was this pre-exilic programme of the book of Deuteronomy that made possible the survival of Judaean identity in the late Babylonian period when the state of the Davidic dynasty, Jerusalem, and with it the temple, were lost. In this sense the book of Deuteronomy became relevant during the ‘exilic’ period and produced a deep influence on the history of Judah. Whoever tries to date the proprium of the book of Deuteronomy to the exilic period is in danger of being gripped by the modern notion that the ideas of religion always follow the historical developments and are simply adjusted to them. But there is also the other possibility, and this is especially valid for antiquity, that religious ideas and developments were not only the result of their adjustments to the ‘necessities’ of history but also created history. The pre-exilic literary origin of the book of Deuteronomy was the most important of the prerequisites for the

at all an isolated case in this late pre-exilic period; cf. Otto (2015). Sweeney (2001), 163 tries to prove the thesis that the royal authority of the Davidic dynasty, especially of King Josiah, stood behind the pre-exilic book of Deuteronomy: ‘Overall, Deuteronomic Torah presupposes that the monarch is a strong central authority who stands behind and enforces its provisions as the chief judicial and political figure in the land, but it attempts to portray that power discreetly as an expression of YHWH’s will exercised through the authority granted it by the presence of the central sanctuary.’ The borderline between a ‘discreet expression of royal power’ and an anti-royal attitude in the book of Deuteronomy is hard to draw, but it is obvious that the motif of cult-centralization in the book of Deuteronomy has a pre-exilic setting in the 7th century bce. Also the pre-exilic Covenant Code did not mention a king, although there is no doubt that it was of a pre-exilic origin, but inspired the programme of the pre-exilic book of Deuteronomy. For the hypothesis of Rothenbusch (2000), 399–480, and (2001), following a suggestion of Kienast (1994) and (1996) for the old Babylonian law collections that the misˇpatim of the Covenant Code were a kind of ‘royal inscription’ cf. Otto (2006b), 404–5, and (2009c). The Covenant Code was a priestly programme that did not trust in the power of the state to guarantee the unity of the Judaean society in a period of social upheaval in the late pre-exilic period; for the societal situation cf. Kessler 1992. This was exactly the stimulus for the programme of the pre-exilic Deuteronomy in the Josianic period. 43 Cf. Knauf (2006), 291–349 and (2008), 176.

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survival of the Judaean religion, so that it did not perish but flourished during the exile. And also the literary history of the exilic book of Deuteronomy began to take part in this theological awakening in the exilic period.

III. THE DEUTERONOMISTIC BOOKS OF DEUTERONOMY AND JOSHUA IN THE LATE-BABYLONIAN PERIOD The pre-exilic deuteronomic book of Deuteronomy was a revision of the likewise pre-exilic Covenant Code. This revision became necessary because Josiah planned to centralize the sacrifices at the temple of Jerusalem for all the ‘tribes’ (Deut. 12: 14) of Israel, i.e. Judah and the northern territory, which would be reintegrated into the Josianic state of Judah. But the pre-exilic Deuteronomy remained just a programme. The real career of the book of Deuteronomy started in the exilic period with the end of the royal dynasty and its state, and the end of the temple, which was supposed to be the centre of an Israel assembled around it. The exilic deuteronomistic authors framed the book of Deuteronomy by giving it a new literary setting. In the late pre-exilic period the book of Deuteronomy got its meaning and legitimation from the actual theo-political situation of Josiah’s plans for a united Israel liberated from foreign Aramaean and Assyrian religious influences. The deuteronomistic authors legitimized the book now by framing it with the idea of its origin in a revelation to Moses at Mount Horeb, promulgated to the people in the land of Moab. The deuteronomistic authors formed a complex frame around the pre-exilic book of Deuteronomy and revised the legal core section in Deuteronomy 12–26*. From now on this frame contained the hermeneutical key for that revision. Deuteronomy 4: 45; 5*; 9–10*; 26*; 28* was the first deuteronomistic frame of a Horeb-redaction, which a further deuteronomistic redaction expanded by chapters 1–3*, 29–30*. Deuteronomists of the first generation in exile connected Deuteronomy with Mount Horeb. Deuteronomists of the second generation added a covenant in the land of Moab in Deuteronomy 29 and a narrative of Israel’s wandering from Mount Horeb to the land of Moab in Deuteronomy

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1–3.44 They also connected the book of Deuteronomy with the book of Joshua (Deuteronomy 1–Joshua 23 [Judg. 2: 6–9*]). The first frame of the Horeb-redaction in Deuteronomy 5–10*, 26*, 28* intended to answer the question of whether there was hope for a new history of Israel after the catastrophe of 586 bce by the idea that there did not exist a valid covenant between God and His people before this catastrophe.45 There had been no covenant with God in pre-exilic times, and only now after the catastrophe––in the deuteronomistic frame it was represented by the episode of the molten calf––could a covenant be made.46 According to this new setting for the book of Deuteronomy the deuteronomistic authors revised the legal material in Deuteronomy 12–26,47 which was now interpreted as a constitution for a new Israel in the Promised Land after the exile. This constitution should be valid only in the Promised Land but not in the diaspora (Deut. 12: 1).48 The pre-deuteronomistic order of the organization of the judiciary in Deuteronomy 16: 18–19; 17: 2–13*; 18: 1–549 was expanded by the insertion of the deuteronomistic law concerning the king in Deut. 17: 14–20*50 and concerning the prophets in Deut. 18: 9–22.51 The Decalogue in Deut. 5: 6–21, which was an exilic deuteronomistic creation formed out of different ‘bricks’ of the Judaean religious and legal tradition,52 had its earliest literary context in the deuteronomistic frame of the book of Deuteronomy in 44 For the exegetical analysis of Deuteronomy 1–3 separating postdeuteronomistic from deuteronomistic literary layers cf. Otto (2009a), 284–421; for a literary critical analysis of Deuteronomy 5–11 cf. Achenbach (1991), and for a text-grammatical analysis of these chapters cf. DeRouchie (2007). For a redactioncritical analysis of Deuteronomy 5–11 separating post-deuteronomistic from deuteronomistic literary layers cf. Otto (2009c), 65–215. 45 Cf. Otto (2007b), 39–45. 46 This corresponds to the result of the traditio-historical reconstruction of the idea of covenant between God and His people (cf. n. 39) in the Hebrew Bible. Already the deuteronomistic authors in the 6th century bce knew that this fact was a late idea and used it for their narrative in the frame of the book of Deuteronomy, stating that the covenant was made only after the episode of the molten calf in Deuteronomy 9–10*, i.e. after the catastrophe of 587/6 bce; cf. Otto (2000), 86–93. 47 For an exegectical differentiation between deuteronomistic expansions and the pre-deuteronomistic core-sections in Deuteronomy 12–26 cf. Otto (1999), 238–351; Veijola (2004) (only Deuteronomy 12–16). 48 Cf. Lohfink (1991c). 49 Cf. sect. I. 50 Cf. E. Scheffler (2007). This regulation in Deut. 17: 14–20 was substantially expanded by post-deuteronomistic additions in the post-exilic period. 51 52 Cf. Otto (2009a), 257–71. Cf. Otto (1996a), 293–303.

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Deuteronomy 5.53 According to the differentiation in Deut. 12: 1, Deuteronomy 12–26* only contained the laws for living in the Promised Land, but the Decalogue in Deuteronomy 5 contained rules that were also valid for Israel’s living outside the Promised Land. In the deuteronomistic frame the Decalogue now functioned as a kind of Hauptgebot, i.e. principal law, for the deuteronomistic revision of the pre-exilic book in Deuteronomy 12–26. Now these laws were structured according to the pentalogical structure of the deuteronomistic Decalogue in Deuteronomy 5: 6–21.54 So it is rather improbable to detect a structure in Deuteronomy 12–26* according to the ten different rules in the Decalogue of Exodus 20.55 No Decalogue other than that in Deut. 5: 6–21 was the basis for the deuteronomistic redactional revision of Deuteronomy 12–26*, and this Decalogue was a Pentalogue,56 such that we find a structure of five blocks according to the five rules in Deut. 5: 6–21. Deut. 12: 1. 8–28* corresponds to Deut. 5: 6–10, Deut. 13: 1–15: 23* to Deut. 5: 11, Deut. 16: 1–17 to Deut. 5: 12–15, Deut. 17: 2–18: 22* to Deut. 5: 16, and Deut. 19: 1–25: 16* to Deut. 5: 17–21.57 A decisive aspect of the legal hermeneutics of the book of Deuteronomy, which remained relevant even in the post-deuteronomic book of Deuteronomy, was introduced into the book by the deuteronomistic authors: God had given the Decalogue at Mount Horeb as a direct revelation to the people and Moses mediated the legal and ethical rules in Deuteronomy 12–26* as an application of the divine rules of the Decalogue for the living of the ‘New Israel’ in the Promised Land after the exile. The post-exilic redactors of the Pentateuch made use of this aspect of the legal hermeneutics of the deuteronomistic book of Deuteronomy and made it more explicit in Deut. 1: 1–5. In Deut. 28: 2–13 the deuteronomistic authors of the Horebredaction expanded the curses of the pre-exilic Deuteronomy in

53

Cf. Hoßfeld (1982), 21–162, 214–82, and (2005), 87–94; Otto (1996a), 285–92. Cf. Otto (1999), 233–36, 311, 341, and (2000), 112–22. Pace Braulik (1991); for the latest attempt of Braulik (2008b) to interpret ‘as YHWH, your God, commanded you’ in Deut. 5: 12., 16 as a cataphoric reference under the perspective of a ‘second voice’ in the final text of Deuteronomy, cf. Otto (2009a), 280 n. 41. The ‘final text’ of the book of Deuteronomy was already part of the Pentateuch with an anaphoric meaning of Deut. 5: 12, 16, hinting at the Decalogue of the Sinai pericope. 56 Cf. Lohfink (1990). 57 Cf. Otto (2009a), 273–83. 54 55

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Deut. 28: 20–44* by blessings and introduced a western scheme58 of treaties this way to the book of Deuteronomy.59 The reason for this insertion of a new scheme into the book of Deuteronomy is evident: After the covenant was finally concluded, the people had to decide about their future of curses or blessings related to their disregard or obedience to the Torah, which underlined that in the ‘New Israel’ after the exile there would be no longer any divine forgiveness if Israel would not keep to the laws of the book of Deuteronomy. So the scheme of the Assyrian loyalty oaths underlying the curses of the pre-exilic book of Deuteronomy no longer fit the intention of the deuteronomistic authors of the exilic book of Deuteronomy. They therefore inserted the scheme of treaties that were used in the late Babylonian period. The new exilic idea of a covenant between YHWH and His people was thus expressed by this new structure of the deuteronomistic book of Deuteronomy of the Horeb-redaction.60 The deuteronomistic authors of the second generation in exile realized that there was no fulfilment of the hope that the deuteronomistic authors of the Horeb-redaction had tried to arouse. The redactors of the Moab-redaction formed a second frame around the book of Deuteronomy in Deuteronomy 1–3*, 29–30*. In Deut. 1: 19–46 they incorporated the story of the emissaries, which had the function of explaining why the people of the first generation, who were at Mount Horeb, had to die. This generation, so their answer went, did not trust in the promise of a life in the Promised Land, i.e. a return from exile. So God would establish His covenant with the second generation at the river of Jordan in the land of Moab. The deuteronomistic authors connected their book of Deuteronomy with the deuteronomistic book of Joshua and formed a narrative from Moses’ address at Mount Horeb in Deut. 1: 6–8* to Joshua’s farewell address in Joshua 23.61 For these authors, the decisive covenant was 58

Cf. Lemaire and Durand (1984), 113–31 and Puech (1992); cf. Otto (1999), 30–1. 59 Cf. Otto (1995), 93. 60 The alternative of curse and blessing related to Israel’s obedience to the Torah is a deuteronomistic, not a deuteronomic pre-exilic motif; cf. Deut. 30: 15–20* and Otto (2000), 147–9; pace Leuenberger (2008), 88–104. 61 The analysis of Deuteronomy 1–3 can make sure that there were intensive connections between Deuteronomy 1–3 and the book of Joshua at the level of the deuteronomistic base text and its post-deuteronomistic expansions, but not between Deuteronomy 1–3 and the other books of the Former Prophets, so that there is no proof for the assumption that Deuteronomy 1–3 was ever the beginning of a

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not the Horeb covenant, but the one YHWH made with the ‘Moab-generation’, i.e. with members of the second generation in exile. The authors of this Moab-redaction located the decisive covenant no longer in the desert at Mount Horeb, but at the border of the Promised Land at the river of Jordan,62 because these authors were of the opinion that their coming home would happen very soon beginning with the reading out of the narrative of the Moabcovenant in Deut 29–30*.63 The late-deuteronomistic authors of the Moab-redaction also expanded the legal corpus of the book of Deuteronomy in Deuteronomy 12–26*. They inserted Deut. 12: 1–7 into the centralization laws in Deuteronomy 12*, and especially the legislation on warfare in Deut. 13: 13–19; 20: 1–20*; 21: 10–14 was incorporated into the deuteronomistic Deuteronomy64 due to the ‘historical’ perspective of the Moab-redaction connecting the book of Deuteronomy with the deuteronomistic book of Joshua. In Deuteronomy 12* the perspective of the Moab-redaction was inserted by Deut. 12: 1–7, and the pre-exilic idea of a sacrifice-centralization in Deut. 12: 13–19*, which was only an implicit instruction for a cult-centralization, was now transformed into an explicit one. We can graphicly summarize the literary history of the deuteronomic and deuteronomistic book of Deuteronomy as in Fig. 9.3.

Deuteronomistic History; pace Noth (1943), 12–16 and now Veijola (2004), 3, who is of the opinion ‘dass der geschichtliche Rückblick Dtn 1–3 in seinem Kern auf den geschichtsschreibenden Deuteronomisten DtrH zurückgeht, der das joschijanische Ur-Dtn kurz nach der Rehabilitierung des Königs Jojachin 560 v. Chr. (2.Kön 25,27–30) in bearbeiteter Form als Programmemtext an den Anfang des von ihm geschaffenen Deuteronomistischen Geschichtswerkes stellte.’ For an exegetical analysis of Deuteronomy 1–3 cf. Otto (2009a), 284–420 with a detailed survey of research in these chapters of the book of Deuteronomy. 62 Only the post-deuteronomistic expansions in Deuteronomy 2–3 interpreted Moses’ taking of the kingdom of Sihon and Og as the beginning of the conquest of the Promised Land. This was the perspective of the post-exilic Hexateuch; cf. Otto (2009a), 365–98. 63 For an exegetical analysis of Deuteronomy 29–30 cf. Otto (2000), 129–59. 64 Cf. Otto (2000), 255–7. For the relation between the Sihon-episode in Deut. 2: 24–37 and Deut. 20: 10–20 cf. Braulik (2001), 129–30 n. 58 and Otto (2009a), 381 n. 411.

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Fig. 9.3. Summary of the literary history of Deuteronomy.

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IV. THE POST-DEUTERONOMISTIC BOOK OF DEUTERONOMY IN THE LEGAL HERMENEUTICS OF THE HEXATEUCH AND PENTATEUCH IN THE PERSIAN PERIOD AND OF THE PROTO-CANONICAL ENNEATEUCH IN THE HELLENISTIC PERIOD Parallel to the deuteronomistic Deuteronomy, the Priestly Code (PG) and its supplements (PS) in Genesis 1–Leviticus 16 were written65 as a counter-programme to the deuteronomistic book of Deuteronomy.66 The authors of P construed their view of Israel’s origins within a universal horizon. The aim of creation and world history (Genesis 1–10*) was that YHWH found His home in this world at Mount Sinai in the Tent of Meeting (Exod. 29: 45–6). They projected the covenant of the deuteronomistic Deuteronomy onto the patriarchal narrative in Genesis 17, thoroughly changing the deuteronomistic idea of covenant to a covenant of pure grace. Only the individual Judaean could fail by disregarding the commandment of circumcision in Gen. 17: 14.67 The authors of the Priestly Code were eager to give reasons why the history after the exile should not fail again. But they did not explain how the evil Judah had experienced in the catastrophe came into the well-created world of Genesis 1,68 but in the frame of the deluge-story in Gen. 6: 11 they came to the conclusion that ‘the earth was depraved in God’s sight and the land was filled with violence’. When both these programmes of the exilic period, the deuteronomistic book of Deuteronomy and the Priestly Code, clashed in the post-exilic period, a solution was needed. The idea of monotheism prevailed in post-exilic Judah, and if there was only one God there could be only one origin, history, and identity of Israel as God’s people. The book of Deuteronomy and the Priestly Code contradicted each other not only on several items of cultic law, but even more decisively in the criteria of what constituted and integrated Israel, the priestly genealogy of Abrahamic origin or the 65

Cf. Nihan (2007); Otto (2009a), 107–42. For the antagonism between the Priestly Code and the deuteronomistic book of Deuteronomy cf. Otto (2007b) and (2016). 67 There are no sufficient reasons to interpret Gen. 17: 14 as an addition to PG. On the contrary P was already reacting here to the theology of the deuteronomistic book of Deuteronomy with a form of its ‘subversive reception’; cf. Stipp (2006). 68 Cf. Arneth (2007b), 22–96; Otto (2009a), 679–91. 66

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deuteronomistic covenants at Mount Horeb and in the land of Moab. So the post-exilic scribes created the Hexateuch and Pentateuch out of the two programmatic texts of the deuteronomistic books of Deuteronomy and Joshua of the Moab-redaction in Deuteronomy 1–Joshua 23*, on the one hand, and of the Priestly Code in Genesis 1–Leviticus 16*, on the other. They were using scribal techniques, which had their origins in the pre-exilic revision of the Covenant Code by the book of Deuteronomy, but were now further developed and no longer used only for legal material but also for the revision of narratives. So the redactions of the post-exilic Hexateuch and Pentateuch became the ‘cradle’ of post-biblical Jewish exegesis, which we can find also in post-biblical literature such as Jubilees and the Temple Scroll.69 Out of the exilic book of Deuteronomy, which was connected with the likewise deuteronomistic book of Joshua, and out of the Priestly Code the scribes, in a first step, formed a Hexateuch from Genesis 1 to Joshua 24.70 This the scribes could easily do because P ended at the Sinai pericope, where the deuteronomistic book of Deuteronomy started, namely at Mount Horeb in Deuteronomy 1*. For the authors of the post-exilic Hexateuch, who were writing in the middle of the fifth century bce at the time of Nehemiah’s activities in Jerusalem, the most decisive gift YHWH gave to His people was the land of Israel. This motif in Genesis 15 and Joshua 24 formed a frame within the narrative of the Hexateuch. Its authors intervened in the discussions about the possession of land between the diaspora and those who were living in Yehud. The authors of the Hexateuch favoured the idea of a greater Israel including the territory of Samaria and Transjordan. They expanded the deuteronomistic narratives in Deuteronomy 1–3 and the book of Joshua and inserted a programme of the division of the land in Joshua 13–21 into the book of Joshua. They revised the deuteronomistic account of Israel’s wandering from Mount Horeb to the Promised Land in Deuteronomy 1–3 and interpreted Deuteronomy 2–3 as the beginning of the conquest-narrative in Joshua. Thus, they connected their supplements to the book of Joshua with the frame of 69

Cf. Otto (2008), 547–63; Paganini (2009). Cf. Otto (2000) and (2015). That there was no pre-deuteronomistic Hexateuch without the book of Deuteronomy is demonstrated by Achenbach (2005), 126–30; Otto (2009a), 293–6. The hypothesis of a Hexateuch without Deuteronomy forces one to interpret the doublets between Deuteronomy 1–3 and the book of Numbers as literary additions to such an early Hexateuch; cf. Otto (2000), 12–109, and (2009a), 284–420; Achenbach (2003a), 335–674, and (2003b). 70

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Deuteronomy 1–371 and expanded the deuteronomistic narrative of Joshua’s installation as Moses’ successor with the passage in Deut. 31: 1–8 (14–15). In the legal corpus in Deuteronomy 12–26* several post-deuteronomistic laws were incorporated, which had the function of marking off the holy people of Israel from the foreign peoples and their ideals. The law of cult-centralization in Deut. 12: 8–28 received a new post-deuteronomistic frame in Deut. 12: 8–11, 20–28; Deuteronomy 7*72 was revised and also the legal corpus in Deuteronomy 12–26* expanded, e.g. by Deut. 23: 10–15, a law which dealt with the purity in the camp of Israel as an expansion of the deuteronomistic laws of warfare of the Moab-redaction. This deuteronomistic redaction, which connected the deuteronomistic book of Deuteronomy with the book of Joshua, was the prototype for the redaction of the Hexateuch, but already within this redaction the switch was thrown in the direction of the formation of a Pentateuch. The authors of the Hexateuch incorporated all over their narrative their sources of Deuteronomy and the Priestly Code. They did the same with the legal material. The Covenant Code was the source for the book of Deuteronomy, so that the post-exilic authors incorporated the Covenant Code into the Sinai pericope73 and interpreted the book of Deuteronomy as an exegetical interpretation of the Covenant Code in the land of Moab. The same they did with the Decalogue, which they transferred from Deuteronomy 5 to Exodus 20,74 so that the Decalogue in Deuteronomy 5 became Moses’ 71 Cf. Otto (2009a), 354–420. That there were strong connections between the post-deuteronomistic expansions in Deuteronomy 1–3 and the books of the Tetrateuch, on the one hand, and the book of Joshua, on the other, but not with the other books of the Former Prophets contradicts the idea that Deuteronomy was ever part of a pre-hexateuchal Enneateuch; cf. Otto (2009a), 601–19. For a survey of the research of the post-priestly redactions in the Hexateuch and Pentateuch cf. Otto (2002b). For an enneateuchal perspective of the canon-formation see further in this chapter. 72 For the post-exilic insertions in Deuteronomy 7*, 12* cf. Römer (2005), 64–5; 170–1, and (2006), 64–6. For the post-deuteronomistic redactions in Deuteronomy 1–11, 31–34 cf. Otto (2000), 156–233, (2009a), 284–420, (2009c), 65–215, and (2009e), 547–58. 73 For the post-priestly Sinai pericope cf. Otto (1996b); Achenbach (2004). 74 In Exodus 20 the post-deuteronomistic authors used an older Decalogue, which had already been used and revised by the Deuteronomists in Deut. 5: 6–21, so that we find in Exod. 20: 2–17 characteristics that are older than Deut. 5: 6–21, on the one hand, and others that presupposed P and were post-deuteronomistic; cf. Otto (2000), 245–6 and (2009a), 280. For the legal hermeneutics of the literary relation of the Decalogues in Exodus 20 and Deuteronomy 5 cf. Markl (2007), and for a review of this monograph cf. Otto (2007c); Otto (2009a), 490–514.

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exegetical interpretation of the Decalogue of the Sinai pericope for Israel’s living in the Promised Land. The post-exilic authors of the Hexateuch and Pentateuch knew very well of the literary relations between Deuteronomy and Covenant Code in the pre-exilic period. For the post-exilic authors the book of Deuteronomy was what it had already been in the pre-exilic period: the exegetical revision of the Covenant Code. What was new in the post-exilic context was that they directly connected the Covenant Code as part of the Sinai pericope with the book of Deuteronomy in one post-exilic narrative, so that Moses promulgated the book of Deuteronomy in the land of Moab. The implicit legal hermeneutics of the pre-exilic Covenant Code in relation to the book of Deuteronomy became explicit now.75 A last step was taken by the redaction of the Pentateuch, which was finished in the early fourth century bce at the time of Ezra’s mission to Jerusalem. For these authors who were scribal priests as Ezra was a priest,76 the land was no longer YHWH’s decisive gift to the people. The authors of the redaction of the Pentateuch cut off the book of Joshua from the Hexateuch, thus creating the Pentateuch, which now ended with Moses’ death in Deuteronomy 34.77 But they supplemented the Sinai pericope especially with the Holiness Code in Leviticus 17–26, which was formed by the authors78 who also created the legal hermeneutics of the Torah.79 They formulated the idea in Deut. 1: 1–5; 31: 1 that the book of Deuteronomy was the result of Moses’ expounding the Decalogue and Covenant Code of the Sinai pericope in the land of Moab.80 The authors of the

75

This contradicts the theory that there was a gap between, on the one hand, the hermeneutics of the Covenant Code, the book of Deuteronomy and the Holiness Code, which were intended to replace each other, and, on the other hand, the hermeneutics of their collection into one Pentateuch in a process of ‘canonization’. There was a literary continuity with the legal hermeneutics of the Pentateuch from the beginning of the legal history of the Hebrew Bible up to the canon formation; cf. Otto (2009a), 248–56; pace Stackert (2007), 211–25. 76 Cf. Otto (2008), 564–602. 77 For the Pentateuch-redaction cf. Otto (2000), 167–233, and for Deuteronomy 34 as part of this redaction Schmid (2007). 78 Cf. Otto (1994b), (2009a), 46–106, and (2009b); Achenbach (2008). 79 Cf. Otto (2007a), 14–103, and (2009a), 421–46, 490–514. 80 Cf. Ska (2007); Otto (2009a), 401–20, 480–89; cf. also Schmid (2004b), 199–200; Rüterswörden (2006), 24–5, and (2007), 54–5; pace Braulik and Lohfink (2005). For the suggestion by Heckl (2004), 65–6, 69 to connect Deut. 1: 5 only with Deut. 1: 6–8; cf. Otto (2009d ), 353–65.

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redaction of the Pentateuch also knew very well the pre-exilic literary relations between the Covenant Code and the deuteronomic book of Deuteronomy as a revision of the Covenant Code. It is characteristic for the literary history of the Pentateuch that the legal hermeneutics of the narrative of the Pentateuch corroborates the modern exegetical results in the analysis of the literary relations between the Covenant Code and the book of Deuteronomy.81 These cases of accord between the literary and hermeneutical theory of the Pentateuch itself and modern exegetical perspective are the most reliable foundation for a modern interpretation of the book of Deuteronomy as a cornerstone for the legal history of the Hebrew Bible. In the beginning of the process of canon-formation in the Hebrew Bible, the Torah became the foundation for the books of the Former Prophets in Joshua–2 Kings. Some literary brackets were thus inserted into these books, especially in 1 Kgs. 8: 41–5, 55–61, and 2 Kings 1,82 so that at the end there was an ‘Enneateuch’ with a clear theological differentiation between Torah and Former Prophets. We can summarize the literary history of the book of Deuteronomy as part of the Hexateuch and Pentateuch graphicly, as at Fig. 9.4. Moses’ song in Deuteronomy 31–2* and its frame in Deuteronomy 31–2*, the latest literary parts in Deuteronomy, connected the Torah, i.e. the Pentateuch in its final form, not only with the Former Prophets but with all the Hebrew Bible, especially the books of the corpus propheticum and the psalter.83 But with this last step in the literary history of the book of Deuteronomy as part of the Pentateuch, the legal aspects of the hermeneutics of the Torah were left behind, and all the Torah was interpreted as a prophecy for the salvation of Israel. But this aspect of canon-formation within the Torah is already beyond the scope of this study.

81 Modern exegetes should not argue against but in accordance with the ancient understanding of the Torah of its own literary history and legal hermeneutics; cf. Otto (2009a), 447–60 and (2013). 82 Cf. Otto (2015). The so–called ‘Enneateuch’ was a phenomenon of canonformation but not of an ‘Enneateuch-redaction’, which predated the formation of the Pentateuch. 83 Cf. Otto (2009a), 641–73.

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Fig. 9.4. Summary of the literary history of Deuteronomy as part of the Hexateuch and Pentateuch.

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—— (2009f ), ‘Review of Chr. Dietrich, Asyl. Vergleichende Untersuchung zu einer Rechtsinstitution im Alten Israel und seiner Umwelt’, ZAR 15: 456–8. —— (2010a), ‘Das Bundesbuch und der „Kodex“ Hammurapi. Das biblische Recht zwischen positiver und subversiver Rezeption von Keilschriftrecht’, in R. Achenbach ZAR 16: 1–16. —— (2010b), ‘Review of D. Koch, Vertrag, Treueid und Bund. Studien zur Rezeption des altorientalischen Vertragsrechts im Deuteronomium und zur Ausbildung der Bundestheologie im Alten Testament’, ThLZ 135: 673–5. —— (2013), ‘The Study of Law and Ethics in the Hebrew Bible/Old Testament’, in M. Saebo (ed.), Hebrew Bible/Old Testament: The History of its Interpretation, iii. Modern Interpretation of the Hebrew Bible/Old Testament. The Nineteenth and Twentieth Centuries. Part 2: the Twentieth Century–from Modernism to Post-modernism (Göttingen: Vandenhoeck & Ruprecht), in print. —— (2015), ‘Pentateuch und Vordere Propheten’, in R. Achenbach, M. Leuenberger, and E. Otto, Einleitung in die Literaturgeschichte der Hebräischen Bibel (Tübingen: Mohr Siebeck). Paganini, S. (2009), „Nicht darfst du zu diesen Wörtern etwas hinzufügen“: Die Rezeption des Deuteronomiums in der Tempelrolle: Sprache, Autoren, Hermeneutik (BZAR 11; Wiesbaden: Harrassowitz). Paul, S. M. (1990), ‘Biblical Analogues to Middle Assyrian Law’, in E. B. Firmage, B. G. Weiss, and J. W. Welch (eds.), Religion and Law: Biblical Judaic and Islamic Perspectives (Winona Lake, Ind.: Eisenbrauns), 333–50. Perlitt, L. (1969), Bundestheologie im Alten Testament (WMANT 36; Neukirchen-Vluyn: Neukirchener Verlag). Puech, E. (1992), ‘Les Traités araméens de Sfiré’, in E. Preuch, J. Briand, and R. Lebrun (eds.), Traités et Serments (CEv Suppl. 81; Paris: Les Éditions du Cerf), 88–107. Radner, K. (2006), ‘Assyrische tuppi adê als Vorbild für Deuteronomium 28,20–44?’, in M. Witte, K. Schmid, et al. (eds.), Die deuteronomistischen Geschichtswerke. Redaktions- und religionsgeschichtliche Perspektiven zur „Deuteronomismus“-Diskussion in Tora und Vorderen Propheten (BZAW 365; Berlin: de Gruyter), 351–78. Reuter, E. (1993), Kultzentralisation. Entstehung und Theologie von Dtn 12 (BBB 87; Frankfurt am Main: Anton Hain). Rofé, A. (2002), Deuteronomy. Issues and Interpretation (OTSt; London: T&T Clark). Römer, T. (2004), ‘Cult Centralization in Deuteronomy 12. Between Deuteronomistic History and Pentateuch’, in E. Otto and R. Achenbach (eds.), Das Deuteronomium zwischen Pentateuch und Deuteronomistischem

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Geschichtswerk (FRLANT 206; Göttingen: Vandenhoeck & Ruprecht), 168–80. Römer, T. (2005), The So-Called Deuteronomistic History: A Sociological, Historical and Literary Introduction (London: T&T Clark). —— (2006), ‘Entstehungsphasen des „deuteronomistischen Geschichtswerkes“’, in M. Witte, K. Schmid, et al. (eds.), Die deuteronomistischen Geschichtswerke. Redaktions- und religionsgeschichtliche Perspektiven zur „Deuteronomismus“-Diskussion in Tora und Vorderen Propheten (BZAW 365, Berlin: de Gruyter), 46–70. Rothenbusch, R. (2000), Die kasuistische Rechtssammlung im „Bundesbuch“ (Ex 21,2–11.18–22,16) und ihr literarischer Kontext im Licht altorientalischer Parallelen (AOAT 259; Münster: Ugarit). —— (2001), ‘Die kasuistische Rechtssammlung im „Bundesbuch“ (Ex 21,2–11.18–22,16)’, ZAR 7: 243–72. Rüterswörden, U. (2006), Das Buch Deuteronomium (NSK.AT 4; Stuttgart: Katholisches Bibelwerk). —— (2007), ‘Moses’ Last Day’, in A. Graupner and M. Wolter (eds.), Moses in Biblical and Extra-Biblical Traditions (BZAW 372; Berlin), 51–9. Ruwe, A. (2000), ‘Das Zusammenwirken von „Gerichtsverhandlung“, „Blutrache“ und „Asyl“. Rechtsgeschichtliche Erwägungen zu todesrechtsrelevanten Asylbestimmungen im Hexateuch’, ZAR 6: 190–221. Saporetti, C. (2008), ‘Giurisprudenza medioassira’, in M. Liverani and C. Mora (eds.), I diritti del mondo cuneiforme: Mesopotamia e regioni adiacenti, ca. 2500–500 a. C. (Pubbl. del CEDANT 4, Pavia: IUSS), 457–72. Scheffler, E. (2007), ‘Criticism of Government: Deuteronomy 17: 14–20 Between (and Beyond) Synchrony and Diachrony’, in J. Le Roux and E. Otto (eds.), South African Perspectives on the Pentateuch Between Synchrony and Diachrony (LHBOTS 463; New York: T&T Clark), 124–37. Schmid, K. (2004a), ‘Zurück zu Wellhausen?’, ThR 69: 314–28. —— (2004b), ‘Das Deuteronomium innerhalb der „deuteronomistischen Geschichtswerke“ in Gen–2Kön’, in E. Otto and R. Achenbach (eds.), Das Deuteronomium zwischen Pentateuch und Deuteronomistischem Geschichtswerk (FRLANT 206; Göttingen: Vandenhoeck & Ruprecht), 193–211. —— (2006), ‘Hatte Wellhausen Recht? Das Problem der literarhistorischen Anfänge des Deuteronomismus in den Königebüchern’, in M. Witte and K. Schmid et al. (eds.), Die deuteronomistischen Geschichtswerke. Redaktions- und religionsgeschichtliche Perspektiven zur „Deuteronomismus“-Diskussion in Tora und Vorderen Propheten (BZAW 365; Berlin: de Gruyter), 19–44. —— (2007), ‘Der Pentateuchredaktor: Beobachtungen zum theologischen Profil des Toraschlusses in Dtn 34’, in T. Römer and K. Schmid (eds.), Les

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Dernières Rédactions du Pentateuque, de l’Hexateuque et de l’Ennéateuque (BEThL 203; Leuven: Peeters), 183–97. —— (2008), Literaturgeschichte des Alten Testaments. Eine Einführung (Darmstadt: Wissenschaftliche Buchgesellschaft). Schniedewind, W. M. (1999), Society and the Promise to David: A Reception History of 2 Samuel 7:1–17 (New York: Oxford University Press). —— (2004), ‘The Textualization of Torah in the Deuteronomic Tradition’, in E. Otto and R. Achenbach (eds.), Das Deuteronomium zwischen Pentateuch und Deuteronomistischem Geschichtswerk (FRLANT 206; Göttingen: Vandenhoeck & Ruprecht), 153–67. Schwienhorst-Schönberger, L. (1990), Das Bundesbuch (Ex 20,22–23,33). Studien zu seiner Entstehung und Theologie (BZAW 188; Berlin/New York: de Gruyter). Ska, J.-L. (2007), ‘Le début et la fin du Deutéronome (Dt 1:5 et 31:3)’, in A. Rofé, M. Segal, S. Talmon, and Z. Talshir (eds.), Text-Criticism and Beyond in Memoriam of Isac Leo Seeligmann (Textus 23; Jerusalem: Magnes), 81–96. Spieckermann, H. (1982), Juda unter Assur in der Sargonidenzeit (FRLANT 129; Göttingen: Vandenhoeck & Ruprecht). Stackert, J. (2007), Rewriting the Torah. Revision in Deuteronomy and the Holiness Code (FAT 52; Tübingen: Mohr Siebeck). Staszak, M. (2006), Die Asylstädte im Alten Testament: Realität und Fiktivität eines Rechtsinstituts (ÄAT 65; Wiesbaden: Harrassowitz). Steymans, H. U. (1995), Deuteronomium 28 und die adê zur Thronfolgeregelung Asarhaddons: Segen und Fluch im Alten Orient und in Israel (OBO 145; Fribourg: Universitätsverlag; Göttingen: Vandenhoeck & Ruprecht). —— (1998), ‘Der (un-) glaubwürdige Bund von Psalm 89’, ZAR 4: 126–44. —— (2006), ‘Die literarische und historische Bedeutung der Thronfolgevereidigung Asarhaddons’, in M. Witte, K. Schmid, et al. (ed.), Die deuteronomistischen Geschichtswerke: Redaktions- und religionsgeschichtliche Perspektiven zur „Deuteronomismus“-Diskussion in Tora und Vorderen Propheten (BZAW 365; Berlin: de Gruyter), 331–50. Stipp, H.-J. (2006), ‘„Meinen Bund hat er gebrochen“ (Gen 17,14). Die Individualisierung des Bundesbruchs in der Priesterschrift’, MThZ 56: 290–304. Sweeney, M. A. (2001), King Josiah of Juda: The Last Messiah of Israel (Oxford: Oxford University Press). —— (2007), I & II Kings: A Commentary (Louisville, Ky.: Westminster). Tomes, R. (2008), ‘Home-grown or Imported? An Examination of Bernard Jackson’s Wisdom Laws’, ZAR 14: 443–62. Traulsen, C. (2004), Das sakrale Asyl in der Alten Welt. Zur Schutzfunktion des Heiligen von König Salomo bis zum Codex Theodosianus (Jus Ecclesiasticum 72; Tübingen: Mohr Siebeck).

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Uehlinger, C. (1995), ‘Gab es eine joschijanische Kultreform? Plädoyer für ein begründetes Minimum’, in W. Groß (ed.), Jeremia und die „deuteronomistische Bewegung“ (BBB 98; Weinheim: Beltz Athenäum), 57–90. Vanoni, G. (1985), ‘Beobachtungen zur deuteronomistischen Terminologie in 2 Kön 23,25–25,30’, in N. Lohfink (ed.), Das Deuteronomium. Entstehung, Gestalt und Botschaft (BEThL 68; Leuven: Peeters), 357–62. Van Seters, J. (2003), A Law Book for the Diaspora: Revision in the Study of the Covenant Code (New York: Oxford University Press). —— (2006), ‘The Altar Law of Ex 20,24–26 in Critical Debate’, in M. Beck and U. Schorn (eds.), Auf dem Weg zur Endgestalt von Genesis bis II Regum: Festschrift H.-C. Schmitt (BZAW 370; Berlin: de Gruyter), 157–74. Veijola, T. (2002), ‘Deuteronomiumsforschung zwischen Tradition und Innovation’, ThR 67: 273–327, 391–424. —— (2004), Das 5. Buch Mose. Deuteronomium Kapitel 1,1–16,17 (ATD 8,1; Göttingen: Vandenhoeck & Ruprecht). Weinfeld, M. (1972), Deuteronomy and the Deuteronomic School (Oxford: Oxford University Press). —— (1991), Deuteronomy 1–11 (AncB 5; New York: Doubleday). Wellhausen, J. (1899), Die Composition des Hexateuchs und der historischen Bücher des Alten Testaments (3rd edn.; Berlin: Georg Reimer). —— (1927), Prolegomena zur Geschichte Israels (repr. of 6th edn. 1905; Berlin: de Gruyter).

10 ‘The peg in the wall’: Cultic Centralization Revisited Reinhard G. Kratz

1. THE PROBLEM It was Julius Wellhausen who first used the idea of cultic centralization as a criterion according to which it was possible to separate the history of Israel into two different epochs: the age of ancient Israel and the age of Judaism.1 Wilhelm Martin Leberecht de Wette paved the way for this distinction. De Wette identified the law book of Josiah (2 Kings 22–3) with Deuteronomy and introduced the distinction between Hebraism and Judaism.2 Wellhausen combined both aspects realizing that Deuteronomy must be used when one wants to distinguish both historical epochs within the biblical texts. Wellhausen’s analysis is still valid today but seems to aim more at the literary level of the Hebrew Bible than at the history of Israel. From a historical perspective it is impossible to maintain that one epoch simply follows the other. The texts from Elephantine and the continuing polemics against ancient Israel within the Hebrew Bible itself make it seem likely that both types of ‘Israel’, the historical one and the biblical one from which Judaism derived, existed––from a certain point onwards––next to each other.3 Both de Wette and Wellhausen arrived at their results with the help of literary-historical criticism, i.e. by using internal criteria. 1

Wellhausen (1905) and (1914). The famous dissertation of de Wette––often quoted, but seldom read––is now re-edited and translated into German by Mathys (2008), translated into English by Harvey and Halpern (2008). For Hebraism and Judaism see Perlitt (1994). 3 Kratz (2007a). 2

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Next to such an approach we also find proposals that operate with extra-biblical material, i.e. the so-called external evidence. Behind such a preference often lies the intention to undermine formcritically any literary-critical hypothesis.4 Or one simply wants to confirm the results of literary-historical investigations and, subsequently, place the results on a new religio-historical basis.5 Since the groundbreaking studies of Deuteronomy and the Deuteronomic school by Moshe Weinfeld from 1972 the discussion tends to focus on certain neo-Assyrian parallels.6 Today these parallels are used to explain not only the literary history of Deuteronomy but also the origin of the Pentateuch as a whole and many other aspects of the biblical tradition.7 Here phrases such as ‘point of Archimedes’ and ‘peg in the wall’ are used.8 Thus, the external evidence seems to support a current trend in Hebrew Bible scholarship to date many of the texts, previously thought of having originated during Solomonic times, to the time of Josiah, even though we do not know anything more about Josiah than we know about Solomon and the premonarchic period.9 It is to be hoped that the ‘peg in the wall’ that has to hold all those hypotheses will be spared the destiny of the peg mentioned in Isa. 22: 25: OWQMB HEWQTH DTYH $WMT TWABC HWHY OAN AWHH OWYB :RBD HWHY YK HYLE R$A A$MH TRK NW HLPNW HEDGNW IMAN

In the following I will subject those hypotheses to close scrutiny using the concept of cultic centralization in Deuteronomy and the Deuteronomistic literature as a test-case. Thus, our contribution serves a double purpose: we will discuss the religio-historical place of 4

Baltzer (1964), on whom see Perlitt (1969). Already Oestreicher criticized the ‘isolated method’ of de Wette and Wellhausen who ‘only knows of a inner-Israelite development’ and postulated a ‘universal perspective’ (weltgeschichtliche Betrachtungsweise); see Oestreicher (1923), 9–10; id. (1930), 34. 6 Weinfeld (1972), 59–178; see also ibid., vii where he notes the significance of VTE for de Wette’s hypothesis. 7 Otto (1996), (1997), (1999), (2000), (2002) etc.; for the broader perspective see Otto (1999), 86–7, (2000), 237 n. 21, and (2002), 13 n. 67, followed by Schmid (2008), 73–108. 8 Otto (1997), (1999), 8, 12, (2000), 10, and (2002), 6. 9 Finkelstein and Silberman (2001), 14 et passim; for Hezekiah as Josiah’s predecessor see Finkelstein and Silberman (2006). On the methodological incoherence of this position see Albertz (2005), 27–9. 5

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cultic centralization and, at the same time, address the methodological question of what heuristic value ancient Near Eastern parallels can have for the explanation of biblical texts.

2. SUBVERSIVE RECEPTION It is scholarly consensus that those laws that centralize the cult and the stipulations that shape the social and judicial laws in the light of the cultic centralization form the basic layer of Deuteronomy.10 The issue of cultic centralization serves as the motif for the reworking of the older Covenant Code of Exodus 20–3 in Deuteronomy and as the guiding principle for the reception process.11 This insight provides us with a lucid criterion for any analysis of Deuteronomy. Next to the change of number in the form of address (Numeruswechsel ) and the literary dependence on the Covenant Code it is the centralization of the cult that decides the extent of the basic layer of Deuteronomy, the so called Urdeuteronomium.12 In addition to this analysis, Eckart Otto has proposed that the laws regarding centralization are preceded by an even earlier document that can be found in Deuteronomy 13 and 28 and which he calls––in a deviation from traditional terminology––the Urdeuteronomuium. According to Otto, who follows a proposal made by Paul-Eugène Dion and Hans Ulrich Steymans, this older Urdeuteronmium consists of an almost verbatim translation of a neo-Assyrian formulary. He finds this formulary in those texts that are generally classified as the Vassal Treaties of Essarhaddon (VTE) containing a loyalty oath that 10 Neglecting any detailed analysis those laws are: Deut. 12: 1–28; 14: 22–29; 15: 1–18; 15: 19–23; 16: 1–18 as well as Deut. 16: 18–20; 17: 8–13; 18: 1–11; 19: 1–13; 19: 15–21; 21: 1–9; 26: 1–16. All other laws do not have a genuine relationship to the theme of cultic centralization. See Reuter (1993); for a wider perspective Hagedorn (2005). 11 Levinson (1997). In the following I will assume an exclusive exegesis of the formula of centralization. On the problem see Reuter (1993), 65–7; Levinson (1997), 23–4 n. 1. On the identification of the chosen place see Kratz (2007b). 12 Kratz (2000a), 120–7 (ET 2005: 114–33); see also Veijola (2004), 2–3. On the question of the criteria see Otto (1999), 10–14. Otto rightly refutes any correlation between Deuteronomy and 2 Kings 22–3 as a basis for literary analysis. Unfortunately he takes only the religio-historical comparison into account as an alternative; see Otto (1996), 3–4, (1999), 13–14, 15–90. Everything else, including the reformulation of the Covenant Code, is therefore subsumed under this aspect.

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Esarhaddon imposed on his subjected rulers in favour of his successor Ashurbanipal.13 In the supposed translation the neoAssyrian loyalty oath was transformed into a loyalty oath of the Judaean people in favour of their god YHWH. Otto calls this process a ‘subversive reception’ and dates it––because of the external evidence, the proposed literary dependence, and the supposed antiAssyrian tendency of Deuteronomy 13 and 28––to Assyrian times.14 It is within this chronological and literary frame that Otto is also locating the concept and realization of cultic centralization in Judah. The religio-historical background of this concept and its supposed polemic and anti-Assyrian purpose is called the ‘rationality of Assyrian cultic centralization’.15 Otto’s hypothesis offers a closed and coherent system. Nevertheless there are quite a number of objections that cause the ‘peg in the wall’ to wobble.16 It has often been observed that the hypothesis cannot be reconciled with the literary evidence of Deuteronomy. The laws concerning cultic centralization are not connected to or fitted into the assumed frame of Deuteronomy 13 and 28. Rather, Deuteronomy 13 interrupts the original connection of the laws regarding centralization in Deut. 12: 13–28 and 14: 22–9. Additionally, the covenant theology of Deuteronomy 13 and 28 does not mark the beginning of the legal and literary-historical development of Deuteronomy, but rather its end. There cannot be any doubt that the covenant in Deuteronomy is inspired by the ancient Near Eastern contract pattern and here especially by the neo-Assyrian loyalty oaths and their late Hittite predecessors. But, in contrast to the ancient Near Eastern examples neither the Assyrian nor the Judaean king takes part in the covenant. It is a covenant only between the people of Israel and the God of Israel. If we had a subversive reception here such a reception would imply that the 13

Text in Parpola and Watanabe (1988), 28–58. On the question of whether the documents are a vassal treaty or a succession oath of Essarhaddon see Liverani (1995) and Otto (1999), 15–32. 14 See Dion (1978) and (1991); Steymans (1995), (2003), and (2006); Otto (1996), (1997), (1999), (2000), (2002), etc.. 15 Otto (1999), 351: ‘Wie der assyrische Gott Asˇsˇur an nur einem Ort kultisch verehrt wird, so auch der judäische Gott JHWH: Jerusalem steht nicht Asˇsˇur nach, und kein Lokalheiligtum in Juda unterminiert die Alternative zwischen dem Gott Asˇsˇur und JHWH.’; see also pp. 74–5, 350–1, 364–78, and Otto (2002), 14–17, 161. 16 See Veijola (2000), and (2002), 289–98; Köckert (2000); Rüterswörden (2002); Aurelius (2003a), 41 n. 77; Pakkala (2006); Koch (2008).

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Judaean king (Josiah) terminated his own existence (see Deut. 17: 14–20).17 Finally, the direct dependence of Deuteronomy 13 and 28 on VTE has been questioned since such a linear and monocausal process does not do justice to the complexity of the ancient Near Eastern literary tradition. Despite the fact that the late Hittite and neo-Assyrian as well as other (Aramaic) parallels provide the general background for the literary development of the Book of Deuteronomy, it is, however, not recommended to accept the hypothesis that a composition of Deuteronomy 13 and 28 is the predecessor and literary frame of the idea of cultic centralization within the original form of Deuteronomy. Thus, we have to concentrate our investigation on the laws regarding centralization themselves and their relationship to what Otto calls the ‘rationality of Assyrian cultic centralization’. Here, Otto depends on information gained from Assyriologists that the god Asˇsˇur––according to the sources available to us and with only one exception (during the reign of Tukulti-Ninurta I)––did not have an official temple outside the city of Asˇsˇur.18 Undoubtedly, this is a fact but what does it tell us? Is this fact the ‘peg in the wall’ we are looking for? Otto himself has to concede that, as far as the ‘programmatic consequence’ is concerned, ‘the Deuteronomic, pre-Deuteronomistic conception of the sacrificial centralization moves significantly beyond the Assyrian concept’. The same is true for the ‘aniconic trait of JHWH-religion’ originating in Judah at the same time and equally ‘reacting to the power of neo-Assyrian culture’. According to Otto this ‘trait of JHWH-religion’, too, was inspired by the god Asˇsˇur but was turned against him.19 If, however, we had indeed a process of ‘subversive reception’ here it would have gone so far that its starting 17

The oath from Arslan Tas. cannot be used to show that ‘the revolt against the Assyrian royal ideology via the covenant theology’ is a specific aspect of Deuteronomy 13 and 28; contra Otto (1999), 85–6, and (2002), 165–6. The covenant theology of Deuteronomy is neither directed against the god Asˇsˇur nor against the Assyrian king but explicitly against ‘other gods’ (Deut. 13: 3, 7, etc.). It goes without saying that also a covenant with Asˇsˇur, Marduk, or Ahuramazda is excluded here. On Arslan Tas. see Koch (2008), 252–3 n. 23. 18 Otto (1999), 74–5, 350–1 referring to Mayer (1995), 61–7; Otto (1997), 15–17; Maul (1997), 121–4. See also Schmid (2008), 81, 106, who is speaking of an ‘Assyrian import’. 19 Otto (1999), 75.

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point can no longer be recognized. This, in turn, makes it very difficult to construct genetic dependencies from similarities. If one wants to evaluate the proposed analogy, one has to look at the religio-historical context. The god Asˇsˇur always had his cultic centre in the city of Asˇsˇur. There was no need for his cult to become centralized, since it was always limited to a single place that was seen in competition to other (Babylonian) cultic centres established earlier. The main point of this rivalry was a question of status of the main god and the capital (i.e. the central cultic place), where the axis of the world was located.20 Since the god Asˇsˇur originally did not have many significant features, he was concerned with acquiring attributes of other powerful gods as well as transferring the significance of their cultic place to his cultic centre of Asˇsˇur. The most prominent and brutal expression of this competition can be found in Sennacherib’s campaign against the Marduk temple Esangila of Babylon and the rich echo of the events in the literary tradition.21 Such campaigns are, however, the exception. Normally the rivalry is expressed in rivalling attributes, rites, and myths for which Asˇsˇur competes with Marduk of Babylon and Enlil of Nippur. These processes cannot be labelled centralization. Rather, they are politically motivated transfers from one centre to another. As far as I am aware we do not know of any prohibition to worship Asˇsˇur (or any other god) outside the city of Asˇsˇur, although we have to concede that positive pieces of evidence are equally sparse.22 The Book of Deuteronomy is quite different. It deals with a deity that was worshipped at different places such as the official temple of the capital and the different local sanctuaries in the cities. The prohibition of any form of offering and the introduction of profane slaughter outside the chosen sanctuary (that is normally identified with Jerusalem, the capital of Judah) do not continue this long-standing tradition. In their original form the laws regarding centralization are not directed against other gods and their cultic

Maul (1997); on the temple of the god Asˇsˇur see Menzel (1981), I, 34 ff. See Vera Chamaza (2002). 22 Cogan (1974), 49–61, esp. 52–5; Pongratz-Leisten et al. (1992). The fact that there are no extra-biblical attestations for a legal corpus focusing on priestly claims from Mesopotamia is further evidence that not only the Deuteronomic concept of centralization but also the form of it (i.e. a divine law mediated by Moses) is exceptional within the ancient Near East and needs to be explained. 20 21

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places that compete with YHWH. Rather they are directed against YHWH himself and his own local cultic centres ‘in the gates’. A rivalry between the YHWH of Jerusalem (Judah) and the YHWH of Samaria (Israel) and other manifestations of the same god at other places may have formed the background of the idea of cultic centralization (see Deut. 6: 4). The rivalry with ‘other gods’ mainly of the land of Canaan, however, presupposes the first commandment and was only added later––as the supplements in Deut. 12: 1–12 or Deuteronomy 13 show. The status of YHWH as the main god of Israel and Judah and the status of Jerusalem as capital of Judah was never questioned if one does not want to think of a rivalry with foreign rule and its capital and gods. Against it, however, the prohibition of sacrifice and the profanation and destruction of local cults would hardly have been a tried and tested measure. Therefore, any comparison of the Deuteronomic law of centralization with the Mesopotamian concept of a capital lacks a valid point of comparison. The only comparative element is the concept of a capital but this is neither a Deuteronomic nor a neo-Assyrian speciality. The concept of a capital is attested in Asˇsˇur but also in Babylon and was most likely also prominent––despite the real political constellations––in Israel and Judah and the other small states in Syro-Palestine. As such, the concept represents the common idea that gods of the land rise to become main gods and certain places become capitals, an idea that necessarily includes some rivalry.23 In all that we find one prerequisite for the Deuteronomic law of centralization, but the two concepts are not identical nor does one concept simply derive from the other. Above all, the common background does not explain any anti-Assyrian polemics, which Otto assumes to be behind the Deuteronomic programme of centralization. In fact, it is not the pre-eminence of the city and the god Asˇsˇur that leads Otto and those who follow him to the assumption of antiAssyrian polemics in Deuteronomy but the politics of King Josiah of Judah.24 In doing so, Otto is trapped in the same circular argument

23

See Mayer (1997) for Ahuramazda who follows the neo-Assyrian and neoBabylonian examples. 24 Otto (1999), 74–5.

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that he rightly criticizes in other places.25 Issues of methodology make it impossible, however, to simply correlate Deuteronomy with the report of Josiah’s reform in 2 Kings 22–3. Such a correlation depends largely on the analysis of both Deuteronomy and the chapters in 2 Kings, and both are hotly debated subjects. This is not the place to repeat the discussion but we have to remind ourselves that the picture changes depending on the literary reconstruction. Even if we take the anti-Assyrian measures employed by Josiah that are generally regarded as belonging to the basic layer of 2 Kings 22–3 and compare them––for argument’s sake––with the laws regarding centralization in Deuteronomy we realize that both aspects are difficult to reconcile.26 Neither the dismissal of the ke˘marimpriests and the removal of several Assyrian cultic symbols from the Temple in Jerusalem (2 Kgs. 23: 5, 11–12)27 nor Josiah’s encounter with Necho that got him killed28 have anything to do with the Deuteronomic concept of cultic centralization. On the other hand, the laws regarding centralization of Deuteronomy as well as Josiah’s move against the indigenous (‘Canaanite’) local cults distinctly lack the rationality of antiAssyrian politics.29 Theodor Oestreicher has tried to solve this problem by separating the anti-Assyrian measures of Josiah from his move against the local cults and subsequently interpreted this move as simply being a momentary measure. According to Oestreicher, neither aspect, nor the original version of Deuteronomy, has anything to do with cultic centralization. In his view the centralization is an invention of the Deuteronomists based on a misunderstanding.30 It is quite obvious that such a hypothesis is simply a rationalization 25 Otto (1999), 7, 13–14 (with reference to Gustav Hölscher). One gets the impression that placing the ‘covenant’ and the covenantal document (Bundesurkunde) before the ‘Law’ in Deuteronomy 13 and 28 (Otto (1999), 74) is modelled on the scene of 2 Kings 22–3. 26 See Uehlinger (1995, ET 2005) and the apt remarks by Otto (1999), 12: ‘Für eine Korrelierung mit einem Urdeuteronomium geben diese Maßnahmen wenig her’; equally Arneth (2001), 206 on the ‘anti-Assyrian reform’ in 2 Kgs. 23: 4–15: ‘Von einer Kultzentralisation ist im ursprünglichen Textbestand (noch) nichts zu vernehmen.’ 27 See Spieckermann (1982), 85–6, 245–56, 271–3, 293–4. 28 It is difficult to decide whether Josiah approached the pharaoh with hostile or friendly intent. See Spieckermann (1982), 138–53; Würthwein (1994), 464–5; Cogan and Tadmor (1988), 291, 300–1. 29 Otto (1999), 75–6, followed by Arneth (2001), 208, simply ignores both aspects. 30 Oestreicher (1923), 56, 116–20, and (1930), 32–42.

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of the literary tradition from a universal perspective (weltgeschichtliche Betrachtungsweise)––a perspective with numerous problems. Nevertheless such a hypothesis highlights the difficulties one encounters if one tries to subsume the earliest edition of the Book of Deuteronomy and the report of Josiah’s reform in 2 Kings 23 under the aspect of Josiah’s anti-Assyrian politics. Here, it is quite common to assume that one can solve these problems by simply historicizing the statements regarding the high places in the narratives of Hezekiah’s (2 Kgs. 18: 4, 22) and Josiah’s (2 Kgs. 23: 5, 8–9, 13, 15, 19–20) reign. The removal of the high places is then an expression of a Judaean (anti-Assyrian) politics of centralization that simply took the historical realities (i.e. the devastation and curtailing of Judaean territory after the events of 701 bce and the assumed opposition of local and official religion) into account.31 Due to economic, political, and religious pressure local cultic places were defamed as being Canaanite (i.e. foreign), and therefore abandoned or deliberately not rebuilt.32 Methodologically speaking such an approach is highly problematic, since it is, again, based on a combination of Deuteronomy 12 with 2 Kings 23 and fuses the literary level with the historical one. In addition, it is difficult to grasp that Judah would have transformed its desperate situation and the desolate state of its land caused by the Assyrian invasion into a religio-political or even theological programme.33 Furthermore, it remains unclear who, by defaming 31 Jepsen (1956), 75; Gleis (1997), 177–81. Similarly Fried (2002), 461, who explains Deuteronomy 12 with the situation after 701 bce but attributes the reforms of Hezekiah and Josiah in total to an exilic Deuteronomist. On the various pictures of Josiah and historical (re)constructions in the light of the Assyrian sources see Handy (2006). 32 Na’aman (1991), 57, and (2002), 596–7. Halpern (1991), 27 thinks that the prophets were responsible for such a programme; Barrick (2002), 177–216 refutes any anti-Assyrian tendency and argues for a shift in internal Judaean politics. For Albertz (2005)––although the historical evidence is lacking––the Josianic reform just must have happened in Josianic times since the dating of Deuteronomy and the Deuteronomistic History must not be too late. Similarly Pietsch (2013), who––after a very thorough and critical evaluation of the literary as well as the archaeological and epigraphic sources––surprisingly comes to the conclusion that the report of 2 Kings 23 is to be dated not too far from the events recounted in this report and thinks that the biblical account is more or less historical. 33 See Aurelius (2003a), 32 (arguing against Jepsen (1956), 75): ‘Aber eine solche gewordene, nicht gewollte, geschweige denn einem Programm zufolge durchgeführte (Tendenz zur) Zentralisation wird noch keinem Geschichtsschreiber Maßstäbe für die Königsbeurteilungen, also für das theologische Urteil über die gesamte Geschichte der beiden Reiche geliefert haben.’

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the indigenous local cults as foreign cults, would have created an artificial antagonism to the YHWH cult of the capital only for economic profit or in order to fulfil the expectation of a ‘subversive reception’ and assimilate YHWH to the god Asˇsˇur. If Josiah is interpreted by employing any anti-Assyrian tendency it would have been more likely that we find an expansion of the local cults of YHWH rather than their defamation and abolition.34 Lastly, it is questionable whether the statements regarding the high places in 2 Kings 23 were ever part of the basic layer of the reform report or whether they were added at a later stage––taking up ideas from later literary levels of Deuteronomy––to transform the antiAssyrian religious measures of Josiah into an inner-Judaean cultic reform.35 If we use the statements concerning the high places we are in danger of using the judgement of the exilic Deuteronomists to describe the mood of the assumed reform movement active under Josiah or even earlier to explain the origin of the Book of Deuteronomy and of the Josianic reform.36 In conclusion we cannot but state that the idea of cultic centralization fits neither the rationality of neo-Assyrian politics nor any Judaean anti-Assyrian political movement. In the light of Moshe Weinfeld’s groundbreaking study it remains unquestionable that the Book of Deuteronomy is influenced by the language and social world of the neo-Assyrian treaty literature and their Hittite and Aramaic predecessors.37 However, it is significant that Moshe Weinfeld himself pointed to a very different religio-historical parallel when explaining the law of centralization in Deuteronomy and its realization under Hezekiah. 34

Kratz (2000a), 137 (ET 2005: 131–2); Aurelius (2003a), 41–2. See Würthwein (1994), 457–8; Kratz (2000a), 136, 173 (ET 2005: 131, 169). Aurelius (2003a), 44, keeps the polemics against the high places although he is unable to detect any political calculation (contra Levin (2003)), nor economic advantage (contra Niehr (1995)), nor any theological (contra Spieckermann (1982)) or antiAssyrian (contra Otto (1999)) intention of King Josiah; see Aurelius (2003a), 40–2. Also, any action against a YHWH-cult swamped with Canaanite influences does not make sense during Josianic times; contra Hardmeier (2000), 141. 36 Oestreicher (1930), 41. 37 On the condition of such influences see Nissinen (1996), 179–82; Steymans (2006); Rüterswörden (2002); the relevant essays in Witte et al. 2006 (303 ff., 351 ff., 379 ff.); Koch (2008). Since Hittite traditions were handed down via Syro-Hittite and Aramaic transmission to the first millennium bce, one could assume the same for the Assyrian traditions that were handed down to Persian times via Median and Urartian transmission. See Schmitt (1977). 35

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3. CULTIC REFORM AND CENTRALIZATION Moshe Weinfeld himself did not refer to a neo-Assyrian analogy but to one from neo-Babylonian times.38 Here Weinfeld is thinking of the transfer of the gods from the Southern Mesopotamian cities to Babylon during the reign of Nabonidus shortly before the conquest of the city by Cyrus II. The events are reported in several documents from the circles of the Babylonian priests of Marduk.39 This act is interpreted by Weinfeld as a politically and religiously motivated measure to bind the Babylonian cities under threat from Persian invasion to Babylon and to increase their military power. Simultaneously––in Weinfeld’s view––this transfer fits well into Nabonidus’ reform programme aimed at establishing the cult of the moon god Sîn as the main cult of Babylon. The later inner-Babylonian polemics of the priests of Marduk portrayed this as a sacrilege reversed by Cyrus II. According to Weinfeld one has to understand the reform of Hezekiah along similar lines, i.e. a politically and religiously motivated measure hoping to strengthen the central power in the light of Assyrian pressure and the siege of Jerusalem. Hezekiah was able to refer to the amphictyonic heritage. Weinfeld uses 2 Kgs. 18: 22 as proof that such an act was criticized in Judah, where prophetic circles––especially the pupils of Isaiah––regarded such a measure as a heinous deed. On the other hand the cultic reform of Hezekiah that was supported by the priestly circles of Jerusalem was regarded as a pious act by the authors of Deuteronomy and the Deuteronomistic History (2 Kgs. 18: 4–6). In contrast to Nabonidus, Hezekiah’s reform, completed by Josiah, was successful. Weinfeld, too, sees the point of origin of the idea of cultic centralization in a religio-political situation that can be explained against the background of ancient Near Eastern sources. In contrast to the hypothesis of a ‘subversive reception’ of Assyrian royal ideology, however, Weinfeld does not postulate any direct literary dependence. Rather, the polemic debate about cultic centralization is limited only to the individual culture concerned. Thus, the Nabonidus episode simply serves as a heuristic model to understand the Deuteronomic 38

Weinfeld (1964). Chronicle of Nabonidus III. 8–12, 20–1 (Grayson (2000), 109–10); CyrusCylinder, 9–10, 33–4 (Schaudig (2001), 550–6); Verse Account V. 12–14 (Schaudig (2001), 570, 578). 39

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programme and its realization, reported in the books of Kings, against the background of the cultural situation of the ancient Near East. An absolute chronology is, therefore, not deduced from such a religio-historical analogy. Following the scholarly consensus at the time Hezekiah, Josiah, and the Book of Deuteronomy are dated to the neo-Assyrian period and are thus seen as predecessors to the neo-Babylonian analogy. It is an advantage of this hypothesis that it does not only take the rivalry between the different capitals into account but also the relationship between capital and hinterland. In doing so, the neoBabylonian parallel is much closer to the Book of Deuteronomy than the neo-Assyrian material surveyed above. For neither the Assyrian nor the Babylonian concept of a capital city is able to explain sufficiently the concept of centralization in Deuteronomy or the polemics against the high places in the Deuteronomistic History. Another advantage of the material presented by Weinfeld is that both the biblical and the neo-Babylonian concepts are part of a specific situation in which unusual measures are employed to cope with difficult circumstances. In both cases, Weinfeld assumes a process of innovation within the framework of an extensive cultic reform that needs to be explained historically. Despite these obvious advantages, Weinfeld’s religio-historical analogy also poses a series of questions that make it unlikely that we have the desired ‘peg in the wall’ here. The main problem is the exact meaning of Nabonidus’ unusual action during the last days of the neo-Babylonian empire. The tendency of the sources is mostly polemical, which makes their interpretation difficult. As is the case in the books of Kings one is faced with the difficult task of discernig the historical motifs behind the polemics. Weinfeld’s explanation is heavily influenced by the views put forth by the Babylonian priesthood that expounds a theology centred on Babylon. Since the priests of Marduk lump Nabonidus’ actions together with other deeds to denounce them as an offence against Marduk and his cultic site, one gets the feeling that the action has indeed something to do with his religious policy. A centralization of the cults in the name of the moon-god Sîn, however, does not seem to fit Nabonidus’ politics of religion and expansion, which was actually more concerned with decentralization.40 Neither his stay at 40

See Beaulieu (1989); Na’aman (2006), 158–62.

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Teman nor the building project of Ehulul at Harran, pursued by Nabonidus in the last years of his reign, point to a concern with centralization. The accusation of the so called Verse Account (V: 18–22) that Nabonidus changed the temple of Marduk at Babylon into a temple of Sîn does not imply a concentration of all cults in one single place but simply fits his religio-political plan to supplant Marduk with Sîn as highest god and to declare the temples of other gods to be places of residence for Sîn.41 Furthermore, Weinfeld’s proposal is not the only possible explanation. Mordechai Cogan has pointed to parallels to the behaviour of Nabonidus showing that the dislocation of gods was a protective measure against enemies and served at the same time as reassurance of divine protection.42 This explanation was excluded by Weinfeld43 but has recently been revived by Paul-Alain Beaulieu, who was able to use newly discovered sources.44 The documents show that––next to the divine images––cultic personnel, too, were ordered to Babylon and we learn of a lively exchange of goods to support the gods now housed there. Beaulieu is further able to detect signs that the dates of the transport of the gods and the personnel were connected with the religious policy of Nabonidus in favour of the god Sîn. Only the polemics of the priests of Marduk distorted the true intention of Nabonidus, namely the protection of the gods, in favour of a portrait of Cyrus as the faithful servant of Marduk. Thus Nabonidus’ action was defamed retrospectively as a cultic abomination and an offence happening against the will of the gods brought to Babylon, triggering the wrath of the lord of gods (Marduk). No matter how we evaluate the process, it is not easy to reconcile it with the Deuteronomic programme of cultic centralization and with the Deuteronomistic portrait of Hezekiah and Josiah. It is possible to understand the election of a cultic place for the main god of the empire against the ancient Near Eastern background, but it is impossible to do so for the flip-side of the coin. In Deuteronomy and the Deuteronomistic History the election of the cultic place is intrinsically linked to the prohibition of cultic deeds and the 41

Schaudig (2001), 21. See Cogan (1974), 30–4, esp. 33 n. 67 against Weinfeld; see also Cogan and Tadmor (1988), 219. 43 Weinfeld (1964), 205; see also Galling (1964), 33. 44 Beaulieu (1989), 219–24, and (1993). 42

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profanation of slaughter ‘in your gates’ (Deut. 12: 13–18) and with the violation and removal of the ‘high places’ (2 Kgs. 18: 4, 22, and 23: 4 ff.). This aspect cannot be equated with the transfer of the gods and their cultic personnel to Babylon under Nabonidus. Beaulieu has shown that such a measure does not imply any violation or removal of cults in Babylonian cities at all. At the same time, a restitution of these and other defunct cults under Cyrus II does not imply that these cults had previously been forbidden by a higher authority in favour of the capital. Centralization on the basis of the Mesopotamian concept of a state capital and the abolition of local cults in favour of a single legitimate cultic place are simply not the same. There is, however, a certain similarity on a literary level between the biblical picture of Hezekiah’s and Josiah’s reforms and the inscriptional evidence of Nabonidus’ cultic reform, his selfpresentation in his monumental inscriptions and the later polemics of the priests of Marduk who attribute the violation of cultic places and idolatry to him.45 These similarities, however, are not too insightful. Nadav Na’aman and others have pointed to similar ancient Near Eastern sources that deal with royal cultic reforms and that contain reports both of forceful interventions and of restitutions of destroyed cultic centres.46 It is hardly surprising that the topos of a royal cultic reform and––up to a certain point––also the pattern of representation in texts that all originated in the ancient Near Eastern realm are comparable. But as far as the motivation and aim are concerned the analogies contain significant discrepancies. All examples are in agreement that the reform ‘is the attempt to elevate a particular deity to the headship of the pantheon and exalt his status throughout the kingdom’.47 The same can be said of Deuteronomy and the literary presentation of Hezekiah’s and Josiah’s reforms in the books of Kings for which the antagonism between YHWH and the ‘other gods’ is crucial. None of the ancient Near Eastern analogies, however, with the exception of Akhnaten, mentions the destruction of other cults as part of the reform and has the king praise himself for it. The case of Sennacherib might be 45 On the relationship between self- and outside-perception of Nabonidus see Kuhrt (1990) and Kratz (2002a). 46 Arneth (2001), 206–16; Na’aman (2006); see also Handy (1995) and on him Barrick (2002), 132–43, who mentions memorial inscriptions such as the Mesha stele as parallels. 47 Na’aman (2006), 163.

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instructive here: the destruction has a specific aim but is universally condemned in later sources as a cultic violation. Thus, neither Weinfeld’s nor any of the other analogies provide a convincing reason for the intention to limit any sacrifice to YHWH to Jerusalem and why the other local sanctuaries ought to be profaned, defamed as foreign cults, and subsequently destroyed. The specific differences of the biblical reports are not simply ‘the book’ that provides the basis for the reform.48 The decisive difference is what this book, the Book of Deuteronomy or the Torah of Moses respectively, prescribes and what Hezekiah and Josiah, generally following the example of ancient Near Eastern kings, actually have done on the basis of this book. Here we have to concede, that ‘while its theological significance seems clear enough, its exact nature and practical significance as an official governmental action in Josiah’s Judah are not’.49 Finally, the literary-historical analysis do not support the neoBabylonian analogy put forth by Weinfeld. As has been the case with Josiah (2 Kings 22–3), Hezekiah’s reform (2 Kgs. 18: 4–7a, 22) was also connected to historical events behind the literary account that fits the historical realities of 701 bce and seems to be supported by archaeological evidence.50 Both arguments, however, are quite uncertain. Hezekiah’s anti-Assyrian policy does not necessarily point to a cultic reform, and the factual crisis of Judah does not make the cultic critique of 2 Kgs. 18: 4, 22 a religio-political programme of a Judaean king. Additionally, archaeological evidence is sparse and difficult to relate unambiguously to a cultic reform. For these and other reasons Hezekiah’s reform has long been regarded as literary fiction of the Deuteronomists and seems to be secondary within the Deuteronomistic work.51 Further doubts arise in regard to Weinfeld’s main argument, namely the speech of Rabshake in 2 Kgs. 18: 22. As far as the context is concerned, the passage is found within the context of three 48 Na’aman (2006), 166–7. For a differentiated view of the role of this book see Ben-Dov (2008). 49 Barrick (2002), 183; see also 171 (‘except the closing of the bamoth’). 50 Handy (1988); Finkelstein and Silberman (2006), 269–75; see nn. 31 and 32 in this chapter. 51 Spieckermann (1982), 170–5; Camp (1990), 274–87; Na’aman (1995), and (2002); Gleis (1997), 149–63; Fried (2002); Aurelius (2003a), 30–3; and even Arneth (2006). On the secondary character of the verses in question see Würthwein (1984), 410–12, 421.

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legendary accounts of the Sennacherib episode and labelled ‘Source B1’ (2 Kgs. 18: 17–19: 9a) by scholars.52 This source is undoubtedly older than the version in 2 Kgs. 19: 9b–35, called ‘Source B2’ that is a supplement and not an independent tradition.53 Both versions are preceded by ‘Source A’ (2 Kgs. 18: 13–16) that expands on the short note in 2 Kgs. 18: 7b––either within the frame of an older annalistic source or as part of the Deuteronomistic basic stratum in 2 Kings 18–20.54 Usually the end of the narrative in 2 Kgs. 19: 36–7 is attributed to ‘Source B’ but these verses do not only provide the closure for B but for the whole passage in 2 Kgs. 18: 13–19: 37 thus including ‘Source A’. Since A is older than B, we can assume that originally 2 Kgs. 19: 36–7––framed by 2 Kgs. 18: 1–3, 7b / 20: 20–1–– only formed the closure of A before B was inserted and was finally expanded by the Isaiah-legends in 2 Kings 20.55 All this means that Weinfeld’s main evidence in 2 Kgs. 18: 22 is handed down as part of a relatively young literary context, in which it is also secondary.56 The passage stands in a certain contrast to the positive (presumably secondary or at least reworked) evaluation of Hezekiah’s piety in 2 Kgs. 18: 4 and is most likely later than it. No matter how we evaluate 2 Kgs. 18: 22––as an original element of the text or a secondary addition; as part of an independent narrative or literary supplement to the books of Kings––the verse presupposes the centralization of the cult and thus Deuteronomy 12 and most likely also the Deuteronomistic demand for abolishment of the high places as well as the positive ending of the narrative in 2 Kgs. 19: 36–7. Within the frame of the narrative, however, 2 Kgs. 18: 22 does not want to contradict 2 Kgs. 18: 4. Rather, the verse wants––at a later stage and in its own words and with slightly different accentuation–– 52 See Cogan and Tadmor (1988), 240–4; Camp (1990), 38–52, 108 ff.; Gallagher (1999), 143–59; and similarly Würthwein (1984), 404–6, 414; Hardmeier (1990), 13–14, 116, 119. 53 On this question see Gallagher (1999), 156. 54 See Würthwein (1984), 406–9 and Camp (1990), 62–107, for an attribution to an annalistic source; Jepsen (1956), 36, 54, 62 and Noth (1957), 76 n. 6 for an attribution to a Deuteronomistic basic stratum. 55 See Kratz (2000a), 173 (ET 2005: 169); for the ending of A see Lewy (1928) followed by Cogan and Tadmor (1988), 241. 56 On the dating of the narrative of ‘Source B’ to the late monarchical period (after 597 bce) see Hardmeier (1990), 169–70. Exegetical reasons for such an evaluation are provided by Hoffmann (1980), 149–50; Würthwein (1984), 421; Gleis (1997), 154–5.

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to align the context in 2 Kgs. 18: 21, 23 with the theological characteristics of the frame in 2 Kgs. 18: 4–6. The cultic reform of Hezekiah placed in the mouth of the enemy rectifies the stigma of the trust in Egypt and in doing so provides the true reason for the factual refutation of the enemy and the deliverance of Jerusalem.57 Undoubtedly, the Sennacherib narrative and 2 Kgs. 18: 22 breathes an Assyrian atmosphere.58 This, however, is simply a fictitious argument within the narrative (erzählfiktives Argument) and neither a historically reliable reminiscence of oppositional circles during the neo-Assyrian period nor the view of a party during neo-Babylonian times when the narrative was written.59 Via the detour of enemy polemics and its refutation––quite common in victors’ propaganda–– the Deuteronomic-Deuteronomistic ideals are powerfully confirmed. It would be rather short-sighted were we to use the atmosphere of a biblical statement for a precise and historical location of the text itself.

4. GATES AND HIGH PLACES The result of the religio-historical comparison is quite ambivalent. On the one hand it became obvious that the Mesopotamian concept of a capital as well as other ancient Near Eastern ideas serve as a prerequisite for the origin of the Deuteronomic idea of cultic centralization and its application within the books of Kings. On the other hand it is not possible to demonstrate a direct dependence on the ancient Near Eastern analogies and thus to date the biblical concept accurately. A religio-historical comparison is important and illuminating but cannot provide the desired ‘peg in the wall’.60 57 See Hoffmann (1980), 149–51; on the different interpretations of the passage see Machinist (2000). 58 Gallagher (1999), 160–254, esp. 190–1; Spieckermann (1982), 346–7; Oded (1992), 121–37. Assyrian propaganda continues under Cyrus; see Beaulieu (1993), 243. 59 Hardmeier (1990), 398–9. 60 This is also true for the formula l esˇakken sˇemô sˇa¯m and its ancient Near Eastern parallels thoroughly investigated by Richter (2002). It is all but scholarly consensus that this expression belongs to the oldest form of the centralization formula; see Reuter (1993), 130–8; Kratz (2000a), 126 n. 29 (ET 2005: 122 n. 29). And even if it belonged to it the ancient Near Eastern parallels would not allow us at all to date its usage in Deuteronomy to the seventh century or even earlier.

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Here, the main difference is that the concept of cultic centralization in Deuteronomy does not only mean an increase in status of the capital but is intrinsically connected to a radical intrusion upon the local cults ‘in the gates’ or ‘on the high places’ of Judah. Every analogy proposed cannot provide a proper explanation for that. Not because the different situation of the sources do not allow it but simply because Deuteronomy itself ‘significantly moves beyond’ ancient Near Eastern analogies.61 Thus, we have to note that the Deuteronomic (and Deuteronomistic) concept of cultic centralization ‘is so special and singular in the world of the ancient Near East that there must be special reasons for it’.62 Therefore, together with Moshe Weinfeld we have to pose the question ‘what was it that prompted the institution of this peculiar reform?’63 Answering this question is not at all easy and we have to evaluate the different possibilities quite carefully. Since reasons of foreign policy such as the destruction of the Judaean hinterland may have played a role but were hardly responsible for the idea of a programmatic destruction of the Judaean local cults and for the repeated polemics against their continuation we have to look for inner Judaean causes. Here, I see two possibilities that have been debated and it is difficult to reach any certainty. Either the idea of centralization and the no less unusual ‘Hear, Israel’ in Deut. 6: 4–5, which is directed against the local differentiation of Yhwh, is a reaction to the downfall of Samaria and is meant to bind the northern Israelites, who have lost a political and religious home, to Judah and Jerusalem. Or the programme is a reaction to the downfall of the kingdom of Judah, the loss of the political and ideological centre of preexilic Judah connected with it, and the deportation, and has the purpose of warning against the decentralization threatened as a result . . . creating a substitute for the one place of worship chosen by Yhwh.64

While I still tend to favour the latter possibility I take into account that it is difficult to explain why Judaeans and Israelites had given up their own local sanctuaries. Nevertheless, I would like to stress again 61

Otto (1999), 75. Kratz (2000a), 137 (ET 2005: 132). 63 Weinfeld (1964), 203, similarly 204: ‘Our question is, then, what was the primary motivation for the action taken to centralize the cult and for the law validating this act?’ 64 Kratz (2000a), 137–8 (ET 2005: 132); see also Aurelius (2003a), 40–4. 62

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that there are equally good reasons to accept the first possibility outlined above and that Deut. 6: 4 emphasizes the common bond between Israelites and Judaeans, a bond first stated by the prophets. Depending which path one takes, internal reasons for the Deuteronomic programme of centralization point either to the late pre-exilic or to the early exilic period. This connects then––more or less organically––to the annalistic frame of the books of Kings where the Deuteronomic programme is applied to the political history of Israel and Judah. On the basis of the Deuteronomistic History hypothesis put forth by Martin Noth this application is selfevident.65 But even if one does not follow Noth’s hypothesis any more we cannot deny the fact that several revisions of the books of Joshua, Judges, and Samuel–Kings are inspired by Deuteronomy and its theology.66 The same can be said of the first edition of Samuel–Kings that connected the older material in the books of Samuel with the annalistic frame of the books of Kings and in doing so created an extensive history of kingship in 1 Samuel 1–2 Kings 25. If we want to continue to speak of a Deuteronomistic History (DtrH)––something that is recommendable for factual reasons as much as it is scholarly convention––such a work can be grasped in this first composition of Samuel–Kings from the exilic period.67 65

Noth (1957). For my argument against Noth’s hypothesis see Kratz (2000a), 155–225 (ET 2005: 153–221), and (2000b), (2000c), (2002b), followed by Otto (2000), 15–16 n. 15 and (2002), 3. On the following scholarly discussion see Veijola (2003), 28–44; Aurelius (2003a); Frevel (2004); Schmid (2004) and the contributions in Witte et al. (2006) and Römer and Schmid (2007). Blum (2007), 84 finds the solution to the riddle in the ‘auto-referential self-definition’ of Deuteronomy in passages like Deut. 31: 9–12, 24–6 and Deut. 1: 5 (Blum (2007), 86). It is undoubtedly correct that in these passages ‘the Torah (Torabuch) defines itself as a quotable referential entity that could be integrated in a larger literary work’ (pp. 88–9). It remains unclear, however, how to recognize on this basis an individual literary work and why this ‘larger work’ has to be the scholarly construct of the Deuteronomistic History (pp. 89, 93). Blum neglects the obvious alternative, i.e. the canonical context from Genesis to Deuteronomy or 2 Kings, even though the beginning of the narrative (‘On the other side of the Jordan, in he land of Moab, Moses undertook . . . ’) connects well with it and Blum has to concede that the ‘genetical code’ of Deuteronomy belongs to the canonical context of the Pentateuch (pp. 93–5, 97). The explanation of the function of Deuteronomy 1–3, missed by Blum p. 93 n. 90), is found in Kratz (2000a), 132–3 (ET 2005: 127–8) and (2000b), 113–14. 67 Kratz (2000a), 190–3, 218, 222–3, 325 (ET 2005: 183–6, 209–10, 218–19, 318), and also Spieckermann (2001); Aurelius (2003a), 207, and (2003b), 3–4; Schmid (2004), 205, 209; for a pre-exilic edition of Samuel–Kings see Provan (1988), 157–73. 66

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A closer look at the annalistic framework in Samuel–Kings reveals that we have to distinguish at least two literary levels here: The first one uses the unity of kingdom and of cult place (achieved under David and Solomon and relinquished under Jeroboam) as a criterion for the evaluation of the kings; it judges them according to political and cultic criteria. The second level employs the standard of the first and the second commandment as well as cultic purity and judges the kings exclusively along these theological lines.68 Thus, the two literary levels represent two different theological standards. The second standard evidently refers to Deuteronomy and the law of the Pentateuch as a whole. The first one, however, agrees with Deuteronomy’s programme of cultic centralization, but uses its own language. Instead of speaking of ‘this place’ and ‘your gates’ as is the case in Deuteronomy, the books of Kings simply refer to the ‘high places’. The Deuteronomic ‘place which Yahweh will choose to let his name dwell there’ (in Kings: ‘has chosen’) appears only in secondary additions to 1–2 Kings. In turn the typical formula of Kings ‘he did what was right/evil in the eyes of Yahweh’ appears only in late passages of Deuteronomy.69 The different terminology confirms the hypothesis that both literary corpora (Deuteronomy within the Hexateuch and the first edition of the Deuteronomistic History in Samuel–Kings) originally existed independently from each other and were only later connected (by the insertion of the book of Judges which has its own framework) and aligned with each other literally within the Enneateuch (consisting of the Torah and the Former Prophets: Genesis–2 Kings).70 Recently several modifications of this literary-historical reconstruction have been proposed, not least in regard to the relationship between ‘gates’ and ‘high places’. Konrad Schmid has used the terminological difference to argue that the theological evaluation of the kings of Israel and Judah in Kings did not yet know of Deuteronomy. Therefore the idea of centralization in Deuteronomy has to be later than the annalistic frame of Kings and developed from it. This proposal is explicitly connected with 68 See Kratz (2000a), 161–7, 174–9 (ET 2005: 159–63, 170–4); also Aurelius (2003a), 211–12, and (2003b), 1–4; Müller (2004), 78–82; Schmid (2004), 201–4; Levin (2008). See already Würthwein (1984); Provan (1988), and Pakkala (1999). 69 Kratz (2000a), 165 (ET 2005: 162), and (2000b), 119–20. 70 Kratz (2000a), 173–4, 191, 195–8, 215–16 (ET 2005: 169–70, 183–6, 188–92, 206–9); see already Jepsen (1956), 73, 90–1.

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the option of a pre-exilic edition of the books of Kings. This means––according to Schmid––that the basic form of the annalistic (‘Deuteronomistic’) frame of 1–2 Kings has to be preDeuteronomic.71 Both assumptions are highly unlikely. Erik Aurelius has provided compelling reasons that a pre-exilic date of the evaluation of the kings in 1–2 Kings is impossible.72 Furthermore, a pre-Deuteronomic date of the annalistic frame cannot explain the polemics against the high places. Without the knowledge of Deuteronomy’s law of centralization this does not make any sense. Felippe Blanco Wißmann in his Zurich dissertation tries to prove the opposite. In contrast to his supervisor, he maintains the traditional chronology of Deuteronomy and Kings and also accepts an exilic date for the annalistic frame of 1–2 Kings. Blanco Wißmann, however, assumes that the Deuteronomic law of centralization and the ‘Deuteronomistic’ frame of the books of Kings––that one is to call ‘Deuteronomistic’––originally had nothing to do with each other. The correlation of both is simply based on a ‘Deuteronomistic preconception’ (deuteronomistisches Vorverständnis), i.e. a misunderstanding by scholars, which the Zurich dissertation will remove.73 The strict differentiation of ‘gates’ and ‘high places’ is supplemented by a religious or cultural-historical hypothesis, making this dissertation relevant to the subject of this contribution. First, we find a detailed description of what is meant when speaking of high places. The result is fairly traditional and long known: high places are cultic places in the towns of Judah where the imperial god (Reichsgott) YHWH was worshipped in different local manifestations and together with several other gods and goddesses next to him.74 The difference to the cult ‘in your gates‘ is––as far as I can see––not explained. Also it is never said what is wrong with the local cults if one does not want to rely on the law of centralization of Deuteronomy. 71

Schmid (2004), 205 with n. 53, 208–10; see already Clements (1996), 13–14. Aurelius (2003a). Of a different opinion again is Schmid (2006). My reasons for not letting the work end in 2 Kgs. 23: 29–30 has nothing to do with the date of Deuteronomy as speculated by Schmid (2006), 34–5. The explanation for the absence of a note on the high places in the account of Hezekiah and Josiah is given in Kratz (2000a), 165 (ET 2005: 161–2); here it does not make any difference whether the harmonized notes on the high places in 2 Kgs. 18: 4aα1 and 21: 3a are original or not (see Kratz (2000a),173; in the table on p. 193 2 Kgs. 21: 3a has to be added in brackets); cf. Müller (2004), 79–80. 73 Blanco Wißmann (2008), 246–8. 74 Blanco Wißmann (2008), 62–7; see already Gleis (1997) and Fried (2002). 72

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The connection of the high places with the worship of foreign gods (Götzendienst), given as the reason here, is based on the polemics of the Deuteronomistic frame of Judges, some disputed passages from Kings (2 Kgs. 18: 4, 22; 23: 8–9), and certain prophetic passages.75 The idol worship, however, cannot sufficiently explain the demand to abolish the high places; rather one would expect––as is the case with Jerusalem––a cleansing of the cult. Furthermore, the accusation of idol worship needs to be explained, especially in the light of an assumed religious pluralism and poly-Yahwism during the pre-exilic period.76 The ‘key’ to solve the problem is seen in the religioushistorical situation itself but Blanco Wißmann simply states its sudden termination, a process during which the damnation of traditional religious practices, now obsolete, was brought to an end; he calls this process an inner-Israelite drawing up of a frontier (innerisraelitische Grenzziehung) without explaining the reasons for it.77 But where exactly did the damnation of the traditional religious practices start? Did it start, after all, for the high places with Deuteronomy, and for the idolatry with the Shema‘, or with the Decalogue?78

75 Blanco Wißmann (2007), 75, 77–89, 107–14. In a similar vein he postulates rather than offering any arguments (pp. 116–35) that the ‘sin of Jeroboam’ in 1 Kgs. 12: 26–30 refers to idol-worship. The coherence of the evaluation of the house of Omri, which Blanco Wißmann (pp. 103–5) misses in my reconstruction is selfevident (with or without Baal in 1 Kgs. 16: 31–2!) under the aspect of the unity of cult and kingdom and is explained in Kratz (2000a), 165, 169 (ET 2005: 161–2, 165–6). 1 Kgs. 16: 26 shows that––‘according to the political and ideological standard of the redactor’ (Blanco Wißmann (2008), 76)––the house of Omri surpasses its predecessors in wickedness even without the Baal; 2 Kgs. 8: 18, 27 show that the motif of marriage into foreign or illegitimate dynasties can be used independently. Also the comparison with father and mother in 1 Kgs. 22: 53, 2 Kgs. 3: 2 fits well in such a concept, despite the fact that the two doublets (‘on the way’ and ‘only’) could point to a secondary addition here (Würthwein (1984), 265, 279; see 2 Kgs. 3: 13). Even if the Baal as a speciality of the house of Omri in 1 Kgs. 16: 31–2 and thus also in 1 Kgs. 22: 54a and 2 Kgs. 10: 28 is part of the oldest stratum, Omri together with the calves of Bethel and Dan (if they are original in 1 Kgs. 12: 26–30; cf. Pakkala 2008) was above all condemned because he undermined the unity of cult and kingdom and not because of his idolatry, which is only a secondary aspect; see Müller (2004), 80–1. 76 Blanco Wißmann (2008), 96–103. 77 See Blanco Wißmann (2008), 114–16. 78 Deuteronomy, too, assumes ‘an internal connection between the plethora of the cultic places and the plethora of gods’ (Blanco Wißmann (2008), 114) but this does not lead automatically to the defamation of the local cults as idolatry. Only the programme of cultic centralization (Deut. 12: 13 ff.) and the idea of a unity of Yahweh (Deut. 6: 4) poses the question about the character of the manifold manifestations of Yahweh and the other gods and what should happen to the local sanctuaries.

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The prophetic tradition cannot be used here since the dating of this material is all but certain.79 In fact, the differentiation between Deuteronomy and the books of Kings is not based on the religio-historical situation (at ‘the gates’ and ‘the high places’) but on ancient Near Eastern parallels. As far as Deuteronomy and its idea of a cultic centralization are concerned, Blanco Wißmann follows Eckart Otto. This means that both Deuteronomy and the idea of cultic centralization are traced back to neo-Assyrian parallels and that Deuteronomy is dated emphatically to the time of Josiah.80 On the other hand, the annalistic frame of the books of Kings and its verdict on piety are directly derived from neoBabylonian chronicles and thus dated––with equal emphasis––to the neo-Babylonian, i.e. late-exilic period.81 Here, Weinfeld’s hypothesis is almost turned on its head: the tendency to centralization, that is found in the religious censoring of some editions of the Babylonian Chronicle as well as in the propaganda of the Babylonian priests of Marduk against Nabonidus and in favour of Cyrus is correlated directly to the annalistic frame in 1–2 Kings. Blanco Wißmann states that the closeness of the Babylonian Chronicles and the Books of Kings has been long observed by scholars but was never evaluated ‘consistently’.82 And indeed, there are reasons for such negligence, since it is questionable whether the ‘consistent’ evaluation of the comparative neo-Babylonian material to the books of Kings can arrive at a more compelling result than the ‘consistent’, if not to say forced, evaluation of the neo-Assyrian material for Deuteronomy. The sharp distinction of the cultic centralization in Deuteronomy from the notes regarding the high places in the books of Kings, which is drawn from the ‘consistent’ evaluation of ancient Near Eastern material, gives reason for some doubt. This doubt is further nourished by the ‘inconsistent’ use of the ancient Near Eastern material. Thus it is difficult to understand why 79 See already Jepsen (1959), 106–7 and Gleis (1997), 68–80, 235–44. Also Hos. 10: 8; Amos 7: 9, and Jer. 17: 3 cannot provide the desired evidence. 80 Blanco Wißmann (2008), 16–19 et passim. 81 Blanco Wißmann (2008), 37, 223 et passim; see also Adam (2007), 169–211. Most of the primary sources are found in Grayson (2000) and Schaudig (2001). 82 Blanco Wißmann (2008), 214. Also it is not that new that some of the parallels are close in time to the annalistic frame of Kings. However, a date according to the evaluation of the kings has to be favoured. See Kratz (2000a), 17 (ET 2005: 12–13); thus also Blanco Wißmann (2008), 75 (but a different view, pp. 249–54).

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the neo-Assyrian and neo-Babylonian ideology of a capital city is used for both the cultic centralization of Deuteronomy and polemics against the high places, although it is argued that both concepts have nothing to do with each other. This is especially surprising because the ancient Near Eastern comparative material is not seen as a traditio-historical analogy but as direct and exceptional sources, which allow us to date exactly the biblical reception of them.83 Blanco Wißmann conveniently forgets to mention that neither the neoAssyrian nor the neo-Babylonian sources say anything about the fate of the local cults during the process of cultic centralization. He is equally silent about the fact that the notes on the high places in the books of Kings say nothing about centralization. Thus we realize that the ‘consistent’ evaluation of the ancient Near Eastern parallels leads to a series of problems that could have been avoided were the parallels seen for what they are, namely, examples for the ancient Near Eastern environment in which the biblical tradition originated and which the biblical authors used to develop their own specific expressions and theological concepts. Approaching the sources in this way, we are able to explain the terminological difference between Deuteronomy and Kings. It is well known that the books of Kings are compiled from two sources: the IsraeliteJudaean annals (i.e. the books of days of the kings of Israel and Judah) and the theological (biblical) tradition. Here the idea of a cultic centralization can be derived only from the Deuteronomic law. In the frame of the books of Kings the annals are used as a medium to introduce the idea of centralization into the political history of Israel and Judah. This editorial process leads almost automatically to a formulation that differs from Deuteronomy, even though the same idea is described. Here the idea of cultic centralization is interpreted under the aspect of the unity of kingdom and cult. We can assume that the Babylonian Chronicle served as an example for synchronisms and the verdict on piety, since the annals are related to it.84 The Babylonian Chronicle, however, cannot serve as an alternative to 83 Blanco Wißmann (2008), 67–72, 220–1; on neo-Assyrian influences see p. 215 n. 1078 on the one hand and p. 222 on the other. 84 Kratz (2000a), 164 (ET 2005: 161). For parallels from North West Semitic epigraphy see Parker (2006). That no parallel to the ‘books of the days’ has been discovered yet does not imply that there were not any; the method of Literarkritik, however, does not suffice to reconstruct such a North West Semitic parallel from the text of the books of Kings.

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Deuteronomy as the source for polemics against the high places in Kings. Only in passing I would like to note that other arguments–– centring on the inner-biblical analysis and theological derivation–– put forth by Blanco Wißmann, too, are hardly compelling and often contradict each other. Once it is argued that––in contrast to the books of Kings––in the oldest part of Deuteronomy there was a difference between unity and purity of cult. At the same time an Ur-Deuteronomy as reconstructed by Eckart Otto is used, that already contains the polemics against ‘other gods’ (see Deut. 13: 3, 7).85 In the books of Kings, in turn, it was not the unity of kingdom and cult but the purity of the cult, i.e. the prohibition of foreign gods, that is seen as the starting point and as the criterion that joined the standard formula (‘to do right/evil in the eyes of Yahweh’) with the ‘sin of Jeroboam’ (for the Northern kingdom) and the polemics against the high places (for the Southern kingdom).86 At the same time the books of Kings are separated from Deuteronomy and the (Deuteronomistic) book of Judges where we find precisely what Blanco Wißmann reads into the standard formula, in the ‘sin of Jeroboam’ and in the notes on the high places.87 Thus, the damnation of foreign gods––that cannot be explained with the help of the ancient Near Eastern parallels88 ––appears as unmotivated as the destruction of the high places. Blanco Wißmann also mentions politics next to cultic concerns as a criterion for ‘doing right/evil in the eyes of Yahweh’ but the connection of both remains unclear.89 In one instance the Deuteronomistic standard formula is explained in political terms, in another 85 Blanco Wißmann (2008), 94 n. 485 realizes the problem but chooses to ignore it. 86 On the differentiation see Kratz (2000a), 164–5 (ET 2005: 161–2); different Blanco Wißmann (2008), 72–5, 89–90, 114–16, 236–7; similarly Frevel (2006). The critics seem to return to the old position of Jepsen (1956), 81 and the Göttingen DtrH; see Smend (1989), 122–4; similarly––in regard to the role of Baal––Müller (2004); Levin (2008). 87 On the extent of the first edition of the Deuteronomistic history of kings see Kratz (2000a), 174–5, 190–1 (ET 2005: 170–1, 183–6); on the differentiation of (Joshua and) Judges Kratz (2000a), 195–8, 215–16 (ET 2005: 188–92, 206–9); Aurelius (2003a), 93; Rake (2006), 135; followed by Blanco Wißmann (2008), 54, 246. 88 Blanco Wißmann (2008), 96. 89 On Würthwein’s ((1984), 492–5) proposal to consider political next to cultic aspects see Kratz (2000a), 165, 169 (ET 2005: 161, 165–6); Müller (2004), 78–81.

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one in cultic terms.90 Then it is never explained how the standard formula exactly relates to its continuation (the note on the high places or the remark of the sin of Jeroboam respectively), i.e. whether kings or people are judged according these criteria or not––whatever they may imply.91 If a Southern king is evaluated positively––a verdict regularly qualified in regard to the people and their offering on the high places––it remains unclear whether the behaviour of the people has any bearing on the king as is the case in the Northern kingdom.92 As far as a theological classification is concerned, an appeal to the prophets cannot account for the separation of Deuteronomy and Kings.93 Not only the books of Kings but also Deuteronomy with the law of centralization and the Shema‘ in Deut. 6: 4 presupposes the prophets and their concept of one ‘Israel––even though neither document explicitly quotes them.94 In this respect it is hardly convincing to distinguish between Deuteronomy and Kings, between gates and high places. In other words it is clear that the theological evaluation of the kings in the frame of the books of Kings––derived from Deuteronomy and thus rightly called ‘Deuteronomistic’––does not simply repeat the Deuteronomic idea of cultic centralization but adopts and transforms it. The decisive innovation is the connection of the unity of cult and kingdom that combines Deuteronomy 12 with Deut. 6: 4 and applies both to the political history of the kingdoms of Judah and Israel. Thus a national-religious stance is created that unites and excludes since the internal unity of YHWH and his cultic place implies externally a politics of separation. Such a delimitation from the outside, in turn, paves the way for the polemics against foreign gods as stated in the first commandment and for the defamation of the high places as cultic places of ‘other gods’.95

90

Blanco Wißmann (2008), 75–7 on the one hand and pp. 89–90 on the other. Blanco Wißmann (2008), 54, 89–90 on the one hand and pp. 73–4 on the other. Blanco Wißmann (2008), 75 on the one hand and pp. 89–90 on the other. On the differentiation between king and people in the verdict see Kratz (2000a), 164–5 (ET 2005: 161), and (2000c), 10–11; Müller (2004), 78–9. 93 Blanco Wißmann (2008), 224–33. 94 See Wellhausen (1905), 23–8, and (1914), 122–32, esp. p. 129: ‘Das Deuteronomium krönt die Arbeit der Propheten’; Kratz (2000c), 16–17. 95 On the development of the first commandment see Kratz (2000a), 128, 131–2 (ET 2005: 124, 126–7); Aurelius (2003b); Kratz (2005). 91 92

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5. CONCLUSION The result of our comparative analysis can be summarized thus: The proposed ancient Near Eastern analogies to the idea of cultic centralization (neo-Assyrian loyalty oath, idea of a capital city; Sennacherib literature; Nabonidus literature; neo-Babylonian Chronicle) represent the religious-historical prerequisites of the idea of centralization but cannot be regarded as direct parallels. Therefore they are unsuitable for any traditio-historical derivations or an exact historical dating of biblical documents. The programme of cultic centralization in Deuteronomy and the reports of putting such a centralization into practice that are found in the books of Kings are related to each other––despite all terminological and subject-related differences. The programme of cultic centralization can stand for itself; the reports of its implementation, however, cannot: it is impossible to change the order of events. Deuteronomy has to come first and the verdict on kings in the annalistic frame of the books of Kings is derived from it. A dating of both aspects is only possible because of internal criteria and against the background of the religious history of the ancient Near East. The measure of plausibility helps to reach a decision here. Therefore, the idea of cultic centralization as part of the original edition of Deuteronomy, which represents a reworking of the Covenant Code under this aspect, remains the ‘peg in the wall’. The idea of cultic centralization is still a valuable and decisive criterion for a relative chronology of the history of the literature and theology of the Hebrew Bible. An absolute dating as well as a classification of the different phases of this history remains an object of historical weighing in the light, but not with the exclusive proviso, of the ancient Near Eastern sources available.

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—— (2007a), ‘Temple and Torah: Reflections on the Legal Status of the Pentateuch between Elephantine and Qumran’, in G. N. Knoppers and B. M. Levinson (eds.), The Pentateuch as Torah: New Models for Understanding Its Promulgation and Acceptance (Winona Lake, Ind.: Eisenbrauns), 77–103. —— (2007b), ‘‘The place which He has chosen’: The Identification of the Cult Place of Deuteronomy 12 and Lev. 17 in 4QMMT’, in M. Bar-Asher and E. Tov (eds.), Festschrift D. Dimant, Meghillot 5–6 (Haifa: Bialik Institute), *57–*80. Kuhrt, A. (1990), ‘Nabonidus and the Babylonian Priesthood’, in M. Beard and J. North (eds.), Pagan Priests: Religion and Power in the Ancient World (London: Cornell University Press), 117–55. Levin, C. (2003), ‘Josia im Deuteronomistischen Geschichtswerk’ (1984), in C. Levin, Fortschreibungen. Gesammelte Studien zum Alten Testament (BZAW 316; Berlin: de Gruyter), 198–216. —— (2008), ‘Die Frömmigkeit der Könige von Israel und Juda’, in J. Pakkala and M. Nissinen (eds.), Houses Full of all Good Things: Essays in Memory of Timo Veijola (PFES 95; Helsinki: Finnish Exegetical Society), 129–68. Levinson, B. M. (1997), Deuteronomy and the Hermeneutics of Legal Innovation (Oxford: Oxford University Press). Lewy, J. (1928), ‘Sanherib und Hizkia’, OLZ 31: 150–63. Liverani, M. (1995), ‘The Medes at Esarhaddon’s Court’, JCS 47: 57–62. Machinist, P. (2000), ‘The Ra¯b sˇa¯keh at the Wall of Jerusalem: Israelite Identity in the Face of the Assyrian “Other” ’, Hebrew Studies 41: 151–68. Mathys, H.-P. (2008), ‘Wilhelm Martin Leberecht de Wettes Dissertatio critico-exegetica von 1805’, in M. Kessler and M. Wallraff (eds.), Biblische Theologie und Historisches Denken. Wissenschaftliche Studien aus Anlass der 50. Wiederkehr der Baseler Promotion von Rudolf Smend (Studien zur Geschichte der Wissenschaften in Basel ns 5; Basle: Schwabe), 171–211. Maul, S. M. (1997), ‘Die altorientalische Hauptstadt: Nabel und Abbild der Welt’, in G. Wilhelm (ed.), Die orientalische Stadt: Kontinuität, Wandel, Bruch, 1. Internationales Colloquium der Deutschen Orient-Gesellschaft 9.–10. Mai 1996 in Halle/Saale (CDOG 1; Saarbrücken: Saarbrücker Druckerei und Verlag), 109–24. Mayer, W. (1995), Politik und Kriegskunst der Assyrer (Abhandlungen zur Literatur Alt-Syrien-Palästinas und Mesopotamiens 9; Münster: Ugarit). —— (1997), ‘Der Gott Assur und die Erben Assyriens’, in R. Albertz (ed.), Religion und Gesellschaft: Studien zu ihrer Wechselbeziehung in den Kulturen des Antiken Vorderen Orients, Veröffentlichungen des AZERKAVO (AOAT 248; Münster: Ugarit), 15–23.

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Menzel, B. (1981), Assyrische Tempel (StP.SM 10, I/II; Rome: Pontificio Istituto Biblico). Müller, R. (2004), Königtum und Gottesherrschaft: Untersuchungen zur alttestamentlichen Monarchiekritik (FAT II/3; Tübingen: Mohr Siebeck). Na’aman, N. (1991), ‘The Kingdom of Judah under Josiah’, Tel Aviv 18: 3–71. —— (1995), ‘The Debated Historicity of Hezekiah’s Reform in the Light of Historical and Archaeological Research’, ZAW 107: 179–95. —— (2002), ‘The Abandonment of Cult Places in the Kingdoms of Israel and Judah as Acts of Cult Reform’, UF 34: 585–602. —— (2006), ‘The King Leading Cult Reforms in his Kingdom: Josiah and Other Kings in the Ancient Near East’, ZAR 12: 131–68. Niehr, H. (1995), ‘Die Reform des Joschija. Methodische, historische und religionsgeschichtliche Aspekte’, in W. Gross (ed.), Jeremia und die „deuteronomistische Bewegung“ (BBB 98; Weinheim: Beltz Athenäum), 33–55. Nissinen, M. (1996), ‘Falsche Prophetie in neuassyrischer und deuteronomistischer Darstellung’, in T. Veijola (ed.), Das Deuteronomium und seine Querbeziehungen (SESJ 62; Helsinki: Finnische Exegetische Gesellschaft, Vandenhoeck & Ruprecht), 172–95. Noth, M. (1957), Überlieferungsgeschichtliche Studien: Die sammelnden und bearbeitenden Geschichtswerke im Alten Testament (2nd edn., first pub. 1943; Tübingen: Niemeyer). Oded, B. (1992), War, Peace and Empire: Justifications for War in Assyrian Royal Inscriptions (Wiesbaden: Reichert). Oestreicher, T. (1923), Das Deuteronomische Grundgesetz (BFChTh 27/4; Gütersloh: Bertelsmann). —— (1930), Reichstempel und Ortsheiligtümer in Israel (BFChTh 33/3; Gütersloh: Bertelsmann). Otto, E. (1996), ‘Treueid und Gesetz. Die Ursprünge des Deuteronomiums im Horizont neuassyrischen Vertragsrechts’, ZAR 2: 1–52. —— (1997), ‘Das Deuteronomium als archimedischer Punkt der Pentateuchkritik. Auf dem Wege zu einer Neubegründung der De Wette’schen Hypothese’, in M. Vervenne and J. Lust (eds.), Deuteronomy and Deuteronomic Literature. FS C. H. W. Brekelmans (BEThL 133; Leuven: Peeters), 321–39. —— (1999), Das Deuteronomium: Politische Theologie und Rechtsreform in Juda und Assyrien (BZAW 284; Berlin: de Gruyter). —— (2000), Das Deuteronomium im Pentateuch und Hexateuch: Studien zur Literaturgeschichte von Pentateuch und Hexateuch im Lichte des Deuteronomiumrahmens (FAT 30; Tübingen: Mohr Siebeck). —— (2002), Gottes Recht als Menschenrecht. Rechts- und literaturhistorische Studien zum Deuteronomium (BZAR 2; Wiesbaden: Harrassowitz).

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Pakkala, J. (1999), Intolerant Monolatry in the Deuteronomistic History (SESJ 76; Helsinki: Vandenhoeck & Ruprecht). —— (2006), ‘Der literar- und religionsgeschichtliche Ort von Deuteronomium 13’, in Witte et al. (eds.), Die deuteronomistischen Geschichtswerke. Redaktions- und religionsgeschichtliche Perspektiven zur „Deuteronomismus“-Diskussion in Tora und Vorderen Propheten (BZAW 365; Berlin: de Gruyter), 125–37. —— (2008), ‘Jeroboam without Bulls’, ZAW 120: 501–25. Parker, S. B. (2006), ‘Ancient Northwest Semitic Epigraphy and the “Deuteronomistic” Tradition in Kings’, in Witte et al. (eds.), Die deuteronomistischen Geschichtswerke: Redaktions- und religionsgeschichtliche Perspektiven zur „Deuteronomismus“-Diskussion in Tora und Vorderen Propheten (BZAW 365; Berlin: de Gruyter), 213–27. Parpola, S., and Watanabe, K. (1988), Neo-Assyrian Treaties and Loyalty Oath (SAA 2; Helsinki: University of Helsinki Press). Perlitt, L. (1969), Bundestheologie im Alten Testament (WMANT 36; Neukirchen-Vluyn: Neukirchener Verlag). —— (1994), ‘Hebraismus––Deuteronomismus––Judaismus’, in L. Perlitt, Deuteronomium-Studien (FAT 8; Tübingen: Mohr), 247–60. Pietsch, M. (2013), Die Kultreform Josias: Studien zur Religionsgeschichte Israels in der späten Königszeit (FAT 86; Tübingen: Siebeck Mohr). Pongratz-Leisten, B., et al. (1992), ‘Götterstreitwagen und Götterstandarten: Götter auf dem Feldzug und ihr Kult im Feldlager’, BaghM 23; 291–356 with tables 50–69. Provan, I. W. (1988), Hezekiah and the Books of Kings: A Contribution to the Debate about the Composition of the Deuteronomistic History (BZAW 172; Berlin: de Gruyter). Rake, M. (2006), „Juda wird aufsteigen!“ Untersuchungen zum ersten Kapitel des Richterbuches (BZAW 367; Berlin: de Gruyter). Reuter, E. (1993), Kultzentralisation. Entstehung und Theologie von Dtn 12 (BBB 87; Frankfurt am Main: Hain). Richter, S. L. (2002), The Deuteronomistic History and the Name Theology: lesˇakken sˇemô sˇa¯m in the Bible and the Ancient Near East (BZAW 318; Berlin: de Gruyter). Römer, T., and Schmid, K. (eds.) (2007), Les Dernières Rédactions du Pentateuque, de l’Hexateuque et de l’Ennéateuque (BEThL 203; Leuven: Peeters). Rüterswörden, U. (2002), ‘Dtn 13 in der neueren Deuteronomiumforschung’, in A. Lemaire (ed.), Congress Volume Basel 2001 (VT.S 92; Leiden: Brill), 184–203. Schaudig, H. (2001), Die Inschriften Nabonids von Babylon und Kyros’ des Großen samt den in ihrem Umfeld entstandenen Tendenzschriften. Textausgabe und Grammatik (AOAT 256; Münster: Ugarit).

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Schmid, K. (2004), ‘Das Deuteronomium innerhalb der „deuteronomistischen Geschichtswerke“ in Gen–2Kön’, in E. Otto and R. Achenbach (eds.), Das Deuteronomium zwischen Pentateuch und Deuteronomistischem Geschichtswerk (FRLANT 206; Göttingen: Vandenhoeck & Ruprecht), 193–211. —— (2006), ‘Hatte Wellhausen Recht? Das Problem der literarhistorischen Anfänge des Deuteronomiums in den Königebüchern’, in M. Witte et al. (eds.), Die deuteronomistischen Geschichtswerke. Redaktions- und religionsgeschichtliche Perspektiven zur „Deuteronomismus“-Diskussion in Tora und Vorderen Propheten (BZAW 365; Berlin: de Gruyter), 19–43. —— (2008), Literaturgeschichte des Alten Testaments: Eine Einführung (Darmstadt: Wissenschaftliche Buchgesellschaft). Schmitt, R. (1977), ‘Königtum im Alten Iran’, Saec. 28: 384–95. Smend, R. (1989), Die Entstehung des Alten Testaments (4th edn., first pub. 1978; ThW 1; Stuttgart: Kohlhammer). Spieckermann, H. (1982), Juda unter Assur in der Sargonidenzeit (FRLANT 129; Göttingen: Vandenhoeck & Ruprecht). —— (2001), ‘Former Prophets: The Deuteronomistic History’, in L. G. Perdue (ed.), The Blackwell Companion to the Hebrew Bible (Oxford: Blackwell), 337–52. Steymans, H. U. (1995), Deuteronomium 28 und die adê zur Thronfolgeregelung Asarhaddons: Segen und Fluch im Alten Orient und in Israel (OBO 145; Göttingen: Vandenhoeck & Ruprecht; Freiburg: Universitätsverlag). —— (2003), ‘Die neuassyrische Vertragsrhetorik der “Vassal Treaties of Esarhaddon” und das Deuteronomium’, in G. Braulik (ed.), Das Deuteronomium (ÖBS 23; Frankfurt am Main: Peter Lang), 89–152. —— (2006), ‘Die literarische und historische Bedeutung der Thronfolgevereidigung Asarhaddons’, in Witte et al. (eds.), Die deuteronomistischen Geschichtswerke: Redaktions- und religionsgeschichtliche Perspektiven zur „Deuteronomismus“-Diskussion in Tora und Vorderen Propheten (BZAW 365; Berlin: de Gruyter), 331–49. Uehlinger, C. (1995), ‘Gab es eine joschianische Kultreform? Plädoyer für ein begründetes Minimum’, in W. Gross (ed.), Jeremia und die „deuteronomistische Bewegung“ (BBB 98; Weinheim: Beltz Athenäum), 57–89 (ET: ‘Was there a Cult Reform under King Josiah? The Case for a WellGrounded Minimum’, in L. L. Grabbe (ed.), Good Kings and Bad Kings (JSOT.S 393; LHBOTS–ESHM 5; London: T& T Clark, 279–316). Vera Chamaza, G. W. (2002), Die Omnipotenz Asˇsˇurs: Entwicklungen in der Asˇsˇur-Theologie unter den Sargoniden Sargon II., Sanherib und Asarhaddon (AOAT 295; Münster: Ugarit). Veijola, T. (2000), ‘Wahrheit und Intoleranz nach Deuteronomium 13’, Moses Erben. Studien zum Dekalog, zum Deuteronomismus und zum Schriftgelehrtentum (BWANT 149; Stuttgart: Kohlhammer), 109–30.

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—— (2002–3), ‘Deuteronomismusforschung zwischen Tradition und Innovation (I–III)’, ThR 67 (2002): 273–327, 391–424; 68 (2003): 1–44. —— (2004), Das 5. Buch Mose Deuteronomium Kapitel 1,1–16,7 (ATD 8,1; Göttingen: Vandenhoeck & Ruprecht). Weinfeld, M. (1964), ‘Cult Centralization in Israel in the Light of a NeoBabylonian Analogy’, JNES 23: 202–12. —— (1972), Deuteronomy and the Deuteronomic School (repr. 1992; Winona Lake, Ind.: Eisenbrauns). Wellhausen, J. (1905), Prolegomena zur Geschichte Israels (6th edn.; first pub. 1878; Berlin: de Gruyter), (ET of the 2nd edn. 1883: Prolegomena to the History of Israel, trans. J. S. Black and A. Menzies (1885); repr. Atlanta, Ga.: Scholars Press, 1994). —— (1914), Israelitische und jüdische Geschichte (7th edn.; first pub. 1894; Berlin: de Gruyter; repr. 102004). Witte, M., et al. (2006), Die deuteronomistischen Geschichtswerke. Redaktions- und religionsgeschichtliche Perspektiven zur „Deuteronomismus“Diskussion in Tora und Vorderen Propheten (BZAW 365; Berlin: de Gruyter). Würthwein, E. (1984), Die Bücher der Könige 1. Kön. 17–2. Kön. 25 (ATD 11/2; Göttingen: Vandenhoeck & Ruprecht).

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11 Is It Law or Religion? Legal Motivations in Deuteronomic and Neo-Babylonian Texts Bruce Wells

INTRODUCTION Deuteronomy, though consonant in many ways with older traditions, has long been hailed as a legally innovative text.1 The book’s principal innovation, of course, is cultic centralization, but several other aspects of Deuteronomy’s legal material have also been cited as examples of innovation and typically explained by reference to religious motivations on the part of the Deuteronomic authors. It is these other suggested innovations on which I wish to focus. In my ensuing comments, I will consider three claims of innovation in recent scholarship. I will argue that the relevant texts are not as innovative as claimed. These texts manifest continuity either with existing legal practices or with changes that were occurring elsewhere and around the same time in the ancient Near East. Thus, I seek to demonstrate that Deuteronomic law possesses substantial ties to the legal practice of its wider world and that any innovative strategies it may contain are best examined in that light. As each claim is considered, I will compare the respective texts from Deuteronomy with Mesopotamian legal documents from the The research for this article has been supported by a Research Fellowship from the Alexander von Humboldt Foundation in Bonn, Germany, and by a Collaborative Research Grant from the US National Endowment for the Humanities. Any views, findings, conclusions, or recommendations expressed herein, however, are those of the author alone. 1 See e.g. Levinson (1997), 3–22.

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neo-Babylonian period. I use the term ‘neo-Babylonian’ here in its wider linguistic and cultural sense, as opposed to its more restricted political-historical usage.2 Most texts of this period come from southern Mesopotamia and date to the time either of the neoBabylonian or the Persian empire. To be sure, this is the time period when much of Deuteronomy was compiled, and certain sections of it undoubtedly were composed.3 Nevertheless, it is not merely the time period of these texts that makes them useful for comparative purposes. The neo-Babylonian period is one of the most welldocumented periods of ancient history, with thousands of legal documents recording contracts, testaments, judicial proceedings, and the like.4 No other period offers the same wealth of data in addition to chronological proximity to the compilation of Deuteronomy.5 In particular, though, it is the texts of the neo-Babylonian period that, like Deuteronomy, reflect both a bond with older traditions and a movement towards new concepts and approaches.6

INNOVATIONS IN DEUTERONOMY The first two claims that I examine relate to the administration of justice and legal procedure and the third to family law. With the first claim, I argue that the legal procedure proposed by Deuteronomy 2

On defining the term in this way, see Joannès (2000b), 201–2. On the dating of the major sections and editions of Deuteronomy, see Otto (2002), 5–19, 29–35, 38–56. The Deuteronomic laws discussed below come from the section that Otto identifies as DtnD, a section that contains most of Deuteronomy 12–28. He dates the composition of DtnD to the late seventh century and thus to the late neo-Assyrian period (2002), 5–19, certainly a reasonable dating (see van der Toorn (2007), 152–5; but cf. Hagedorn (2004), 3–14 for debate regarding Deuteronomy’s date and setting). This section was, however, edited, modified, and combined with other parts of Deuteronomy in the neo-Babylonian period. In addition, there are neo-Assyrian legal texts that seem to foreshadow legal strategies and practices that become abundantly clear in the neo-Babylonian period; see Wells (2004), 164–5. 4 For statistics on the number of extant texts, see Jursa (2005), 1–3. 5 The neo-Assyrian period, though perhaps closer to the legal texts of Deuteronomy chronologically, has yielded many fewer legal documents than the neo-Babylonian period. See Jursa (2005), 1–3. 6 See the comments along this line in Westbrook (2005), 134–5; and Magdalene (2007), 94. 3

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for Judahite society corresponds to changes that occurred in Mesopotamian practice and that a similar set of ideas probably affected legal thinking in both regions. The innovation, if indeed such, was thus not purely Deuteronomic. Non-biblical evidence with respect to the second claim is scarce. Nevertheless, the data again suggests congruence with existing practice, perhaps in Judah as well as in the broader Near East. It is not clear, however, whether such practice is a new development or has much older roots. The third claim, I argue, fails to see the connection between Deuteronomic law and long-established legal tradition.

The Two-Witness Rule In his important study on Deuteronomy’s use of the Covenant Code in Exodus, Bernard M. Levinson characterized as an innovation the rule in Deut. 17: 6 and 19: 15 requiring at least two or three witnesses to testify against the defendant in a trial before the defendant can be found guilty.7 With the introduction of cultic centralization, says Levinson, Deuteronomy’s authors had removed the one fail-safe mechanism that courts possessed for resolving legal disputes: using cultic rituals, such as an oath or an oracle, to reach a verdict.8 That is, centralization removed this mechanism from every court in the land except for the central court in Jerusalem. But, since all other courts–– often referred to as local courts––could no longer have recourse to religious rituals, they needed a new evidentiary standard that would allow them to decide cases with certainty. The authors of Deuteronomy, argues Levinson, set forth the two-witness rule as this new standard. The authors of Deuteronomy did not wish to see local courts, short of this level of evidence, convicting defendants. While legal documents from other ancient Near Eastern societies contain no explicitly stated rule like the one in Deuteronomy, there is evidence for a growing trend towards the use of such a rule in Mesopotamian legal practice. In her general study of ancient Near Eastern judicial procedure, Sophie Lafont reached the conclusion that, across the ancient Near East, ‘La conviction d’un accusé semble reposer en principe sur les déclarations concordantes d’au moins

7

Levinson (1997), 122.

8

Levinson (1997), 110–27.

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deux témoins.’9 She based her conclusion on how the cuneiform law codes seek to resolve disputes and on what is recorded in documents of practice, such as trial records. What Lafont did not mention is that a rule, very similar to the one in Deuteronomy, begins to manifest itself much more clearly when one examines the trial records from the neo-Babylonian period. Again, there is in these records no direct articulation of the rule, as in Deuteronomy. Rather, the rule can be inferred from actions that the court takes when it is confronted with cases that are difficult to resolve. In a number of documents that record such situations, the court allows the case to remain in a kind of pending status by issuing a conditional verdict.10 These verdicts are tersely stated but can be interpreted as follows. The court says that no final verdict will be forthcoming until another witness comes forward who can offer testimony relevant to the case at hand. In most of these cases, the court is specifically looking for a witness who can offer testimony that is incriminating to the defendant. The gist of the conditional verdict, then, is that, if such a witness is found and does offer such testimony, then the court will pronounce a guilty verdict and punish the defendant accordingly. The document GCCI 1 380, from the twelfth year of Nabonidus, provides a good example.11 The first ten lines of the text read: On the day when a witness or an informer has proved against Nabu-et.ir . . . that he took grain, belonging to the Lady-of-Uruk, from the house of Hanbaqu . . . an official of [the Eanna temple]––apart from the 5 kor ˘ grain, concerning which Nabu-etir said, ‘Hanbaqu [gave it to me]’––then of . [30 times] the amount that the witness shall˘ [prove], he (Nabu-et.ir) [shall pay] to the Lady-of-Uruk.12

Other conditional verdicts follow the same basic pattern. Courts from earlier periods, when faced with difficult cases, would often resort to a cultic procedure to decide the case.13 But the number of published documents in which a neo-Babylonian court makes use 9

Lafont (2000), 27. For a full discussion of these documents, see Holtz (2009), 133–65; and Wells (2004), 108–26. 11 Published in Dougherty (1923), pl. 380. 12 All translations, unless otherwise stated, are my own. The expression ‘Lady-ofUruk’ refers to the goddess Ishtar and her Eanna temple in Uruk. 13 Levinson (1997), 112–13, and (2006), 1875–7. 10

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of a cultic procedure is small––only half a dozen or even fewer.14 In contrast, there are a substantial number of documents––approximately forty that I know thus far––in which the court issues a conditional verdict that requires the appearance of an additional witness.15 In some documents, the first accusing witness is named, while in many others, such as GCCI 1 380, the first witness goes unnamed. But defendants such as Nabu-et.ir would never have stood before the court in the first place without an initial witness who accused them. Thus, these courts of the neo-Babylonian and early Persian periods are operating as if a rule, like the one in Deuteronomy, were part of their trial law. They are trying to establish a minimum of two separate accusing witnesses before they decide that a defendant is guilty. Where did such a rule come from? This is a difficult question to answer. Perhaps the rule is merely the result of the general tradition of having multiple witnesses, identified by Lafont, taking on a more definite shape within the neo-Babylonian system. In any event, the rule appears to be a formalized feature of neo-Babylonian trial procedure at the very same time when neo-Babylonian courts are eschewing the use of cultic procedures to decide trials. A nearly identical observation applies to Deuteronomy. The book’s authors combine a drastically reduced role for cultic procedures with the formal requirement that a court have two incriminating witnesses before convicting a defendant. This leaves us with the question of innovation. There is no direct textual link between Deuteronomy and neo-Babylonian trial records. Did both groups––the authors of Deuteronomy and the neo-Babylonian magistrates––develop the same innovative approach independently? If so, then perhaps we can say that the law in Deuteronomy was indeed devised as an innovation for the purpose of accommodating the demands of cultic centralization. On the other hand, the degree of correspondence between the stated law of Deuteronomy and the practised law of the neo-Babylonian judicial system suggests that both were relying on a very similar set of ideas. For both to pursue so similar a jurisprudential strategy seems to go beyond mere coincidence. It may even have been that the ideas of 14

See Wells (2008), 211–12, the discussion at and around n. 41; and Magdalene (2004), 305–7 nn. 66–9. 15 See n. 10 above.

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one somehow informed the other, although there is at present no supporting evidence for this. At the very least, however, the evidence from the neo-Babylonian trial records raises questions about the innovative nature of this Deuteronomic rule. While the particular emphasis on the need for a minimum of testimonial evidence combined with a marked reluctance to employ cultic judicial procedures may have been innovative within the broad scope of ancient Near Eastern legal history, it is far from conclusive that any such innovation is distinctly Deuteronomic.

Cities of Refuge It has also been argued, most recently by Jeffrey Stackert, that the Deuteronomic text governing cities of refuge constitutes an innovation.16 The text at issue is Deut. 19: 1–13, which discusses cities to which a ro¯s.e¯ah. (someone who has caused the death of another) can flee in order to escape retribution at the hands of the go¯’e¯l hadda¯m (‘redeemer of blood’ or blood avenger; 19: 6, 12)––the victim’s closest male relative whose right it was to seek revenge. Only those guilty of unintentional homicide are allowed permanent refuge; those whose act was intentional are turned over to the blood avenger for punishment. Stackert begins his study by contrasting Deuteronomy’s system of city asylum with what he sees as the system of altar or sanctuary asylum in the Covenant Code (Exod. 21: 12–14).17 A fairly common view sees the move from the one system (in Exodus) to the other (in Deuteronomy) as a historical development prompted largely by cultic centralization.18 Previously, 16 Stackert (2007), 32–57. See also Stackert (2006), 23–49. Stackert’s careful and thorough source-critical analysis of all of the biblical texts on cities of refuge (2007), 31–112, is compelling in many respects and will need to be taken into account by future scholarship on these passages. 17 At this point, I take no position in the debate over whether or not the Covenant Code text on asylum (Exod. 21: 12–14) has in view both sanctuary asylum and city asylum (Barmash (2005), 71–93) or only the former (Stackert (2007), 32–8). The evidence remains, for me, ambiguous. If the Covenant Code has both in view, then it becomes easy to argue that city asylum was part of existing legal practice in Judah. If not, then some might argue that Judahite legal practice knew only sanctuary asylum prior to the time of the Deuteronomic authors. This argument assumes, however, that the Covenant Code gives us comprehensive information regarding legal practice in contemporary Judahite society, and this is not an assumption that seems yet to have sufficient warrant. 18 e.g., Rofé (1986).

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homicides could flee to any number of sacred sites that dotted the Judahite landscape. Now, with the restriction of all sacred space to the central shrine in Jerusalem, the new system of city asylum had to be developed. Stackert challenges this view in two ways. First, he questions the idea that we have access to any real historical knowledge concerning the system of refuge in ancient Judah. What we have are literary creations that may or may not have a connection to what was actually practised. Hence, he sees no evidence for claiming that the move to city asylum was a historical development. Second, Stackert does not see in the standard theory any clear explanation for why Deuteronomy settles on specifically city asylum.19 Could not other systems (he mentions ‘island asylum’ or ‘foreign-land asylum’) have worked just as well and still been congruent with the centralization programme? Stackert claims that the concept of city asylum comes from the legally innovative interpretative method employed by the authors of Deuteronomy.20 They wanted not only to use the Covenant Code as a source text but also to revise and even to subvert it. Deuteronomy’s authors thus focused their strategy on the word ma¯qôm in Exod. 21: 13. By assuming that ma¯qôm can function as an equivalent for ‘îr (ma¯qôm is even used in parallel to ‘îr in Deut. 21: 19), says Stackert, ‘the Deuteronomic author can simply read city asylum in to Exod 21: 12–14 through his creative interpretation of ma¯qôm.’21 Stackert continues: ‘Through such creative inner-biblical exegesis, Deuteronomy borrows the prestige and authority of its source text, presenting its legal innovation as continuous and harmonious with Exod. 21: 12–14.’22 Thus, it is their agenda of centralization that prompts the authors to look for a system of asylum other than sanctuary asylum, and it is their interpretative method that leads them to ‘invent’ the concept of city asylum. In what follows, I wish to debate Stackert’s claim that the decision by the Deuteronomic authors to choose city asylum was an innovation. My basic point stems from the text’s paucity of details regarding the adjudication process to decide whether the ro¯s.e¯ah.’s act was intentional or unintentional. The text’s authors apparently believed that the process for resolving a case, where the defendant had sought refuge in a city other than his hometown, was already 19 21

Stackert (2007), 40. Stackert (2007), 50.

20 22

Stackert (2007), 49–57. Stackert (2007), 53.

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known in large part to their readers and that their explanation could thus be abbreviated.23 The analysis below will demonstrate that the most plausible process would have involved a joint decision by officials from both towns involved in the situation––the ro¯s.e¯ah.’s hometown and the asylum city––even though the text does not make this clear, and that this sort of resolution process was likely part of existing practice. This strongly suggests, then, that it is not the type of asylum that marks the authors’ innovative thinking; rather, it is their emphasis on specific numbers and locations for asylum cities that makes their approach distinct. Deut. 19: 1–13 is a text that has been subjected to an overwhelming amount of scrutiny by biblical scholars, and it is not my intention here to engage the numerous questions that scholars have raised.24 I want to focus instead on the fact that the text does not, interestingly enough, say explicitly which authority will decide whether or not the ro¯s.e¯ah. committed intentional homicide. It is worth asking, then, what possibilities present themselves. Perhaps the most obvious is that the elders of the ro¯s.e¯ah.’s city will make this decision.25 They are the only officials mentioned in the text and are responsible for delivering a defendant, guilty of intentional homicide, to the blood avenger (v. 12). The problem with this solution is that, should these elders be the sole adjudicating entity in the case, the trial would most likely take place in their city, and this, in turn, would mean that the ro¯s.e¯ah., still sheltered within the asylum city, would be tried in absentia.26 As Jan Christian Gertz points out, ‘Ein Gerichtsverfahren in Abwesenheit des Angeklagten ist im alttestamentlichen Prozeßrecht nicht belegt,’27 23 Rofé (1986), 228, too, suggests this possibility. Important in this regard is Westbrook’s (1990), 577, observation that ancient Near Eastern law codes, such as the Deuteronomic code, ‘were written for the initiated and assume knowledge of most of the matters which the modern researcher seeks to discover’. 24 It is generally agreed that text of Deut. 19: 1–13 contains redactional or editorial modifications and insertions. For example, the introduction in v. 1, the discussion of an additional set of three refuge cities in vv. 8–9, and other isolated phrases were probably not part of the original text. There is also agreement that vv. 11–12 were original to the text. See Gertz (1994), 118–27; Otto (1999), 227–9; and Staszak (2006), 233–41. 25 This is assumed by Stackert (2007), 77–8, and a number of other scholars. As Gertz (1994), 139 states, ‘Sie [the ro¯.se¯ah.’s hometown elders] werden in der Regel als die gerichtliche Instanz angesehen, die über den Vorsatz des Täters zu entscheiden hat’. 26 27 As noted also by Rofé (1986), 228. Gertz (1994), 137.

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and data from other ancient Near Eastern legal documents correspond thereto. The evidence from trial records, especially from the neo-Babylonian period, shows that the physical presence of and statements from the defendant were an essential part of judicial proceedings.28 In YOS 7 15, for example, one man accuses another of having stolen temple livestock.29 The accusation takes place before two temple officials, who often performed judicial functions,30 but the defendant is absent. The text records no verdict, however. It states that, once the defendant has been brought before the court, the accuser will repeat the charge. The defendant’s presence was thus necessary. Another possibility, proposed by Gertz, is that officials from the asylum city are the ones who will decide whether the ro¯s.e¯ah.’s act was intentional or not.31 To begin with, Gertz sees the pronouncement of a verdict in the wording that occurs at the end of v. 5 (wa¯h.a¯y ‘and he [the ro¯s.e¯ah.] will live’) and in v. 6b (we˘lô ’ên misˇpat. ma¯wet kî lo¯’ s´o¯ne¯’ hû’ lô mittmôl sˇilsˇôm ‘and there is no judgment of death upon him [the ro¯s.e¯ah.] for he [the ro¯s.e¯ah.] did not hate him [the victim] previously’).32 While such a verdict clearly applies to a ro¯s.e¯ah. who is not guilty of intentional homicide, Gertz believes that it also implies a trial for any ro¯s.e¯ah. who flees to an asylum city––a trial, moreover, that would necessarily have taken place in the asylum city, for that is where the text has the verdict being pronounced. Because the text describes the elders of the ro¯s.e¯ah.’s hometown as remaining in their town (v. 12), the officials who preside over the trial must, according to Gertz, be officials based at the asylum city.33 For source-critical reasons, Gertz identifies the author of Deut. 19: 1–13 with that of Deut. 16: 18–17: 13. Since the latter text advocates the establishment of professional judges throughout the towns of Judah, Gertz argues that it is the judges, rather than the elders, of the asylum city who decide the case and thus the ro¯s.e¯ah.’s fate.34 He does not believe that city elders and professional judges would have held judicial authority simultaneously. 28

Magdalene (2007), 78–9; Holtz (2009), 224–34, 275–8. Published in Tremayne (1925), no. 15. 30 Magdalene (2007), 60–1. 31 Gertz (1994), 134–40. Stackert does not address Gertz’s claims in his study. 32 Gertz (1994), 137 calls the end of v. 5 an ‘Urteilsformulierung’ (1994), 136, and v. 6b a ‘spezielle Freisprucherklärung’. 33 34 Gertz (1994), 137. Gertz (1994), 139–40. 29

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Gertz’s analysis contains a number of helpful insights, especially his point that the Deuteronomic authors expected a trial to take place at the asylum city. His denial of any judicial role to officials from the ro¯s.e¯ah.’s hometown, however, is problematic. First, the act that resulted in the victim’s death has clearly occurred in or in the vicinity of the ro¯s.e¯ah.’s hometown. It is the officials of this city who would normally have jurisdiction in such a case, and no legal justification appears to be at hand for now barring them from the judicial process simply because the ro¯s.e¯ah. has fled to another city. Second, Gertz’s reading has virtually everyone from the ro¯s.e¯ah.’s city remaining there. The elders of the ro¯s.e¯ah.’s hometown seem never to leave their city in the text, and the blood avenger has stayed put as well, for v. 12 implies that a ro¯s.e¯ah., guilty of intentional homicide, is brought back to the hometown and turned over to the blood avenger there. Who is there at the trial, then, to represent the interests of the city where the crime took place, and who will function as the accusing party? Gertz suggests that the elders send a representative to the trial, but the only responsibility of such a representative would be to escort a guilty ro¯s.e¯ah. back to the hometown.35 Someone with a more direct interest in a proper settlement of the matter––perhaps a representative contingent of elders or other officials along with one or more members of the victim’s family––must have been expected to travel to the asylum city for the trial. It is thus hard to imagine that the Deuteronomic authors intended for the judges (or even the elders) of the asylum city to be the sole judicial authority to resolve the matter.36 The difficulty with any possible answer to the question of who is to adjudicate the case is our lack of information. The text mentions no officials other than the elders of the ro¯s.e¯ah.’s hometown, yet the latter are not explicitly granted judicial authority. The text alludes to a trial in the asylum city but identifies no adjudicating body. Again, the text’s reticence suggests a judicial process already known to the authors and their readers. In addition, the kind of process that is 35

Gertz (1994), 138–9. Gertz’s complete restriction of judicial power to professional judges is probably unwarranted. Neo-Babylonian trial records demonstrate that city elders (sˇ¯ıbu¯tu a¯li) held judicial power along with judges (dayya¯nu¯) and that both could even rule together on the same case. See Dandamaev (1982); and the text in Dalley (1979), no. 69. For the argument that Deuteronomy itself grants judicial power simultaneously to judges and elders, see Willis (2001), 36–50. 36

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suggested by the few details we do have appears to be a collaborative one. The crime was committed within the jurisdiction of one city, but the trial takes place at another. It stands to reason, then, that officials from both cities––whether judges or elders––would have worked together to make the final decision regarding the ro¯s.e¯ah.’s guilt. This proposal finds additional support in a legal document from the neo-Babylonian period. That is, the latter document reveals a model for how such a collaborative decision might be made and confirms that this type of process was in practice elsewhere in the ancient Near East. While neo-Babylonian legal texts offer little by way of comparative material for Deuteronomy’s law on cities of refuge, one text (Durand, Textes Babyloniens 6) from the middle part of the reign of Darius II stands out.37 Unfortunately, a number of places on the tablet are damaged, but the text clearly refers to events that took place in both the city of Dilbat and the city of Babylon.38 [. . . . . . . . . . ‘. . . . . . .] and we displayed the evidence [. . . . . . . . . .’ . . . . . .] Marduk-ze¯r-lı¯sˇir, and Be¯l-lumur, the scribes of the temple of Urasˇ [. . . . . . .] [seized] the evidence of the stolen goods that Be¯l-ittannu, son of Bullut.u, and Be¯l-us.ursˇu, his son, and Urasˇ-na¯s.ir, son of Nidintu, [had taken], and they placed it under seal in the treasury of Urasˇ. [. . . . ] They detained Be¯l-ittannu, son of Bullut.u, and Be¯l-us.ursˇu, his son, in [prison?] in Dilbat, and they placed their houses under seal. But [Urasˇ-na¯s.ir] fled [from] their [. . . . .] and went to Babylon, to Belsˇunu, [the governor of Babylon]. [. . . . . .] and Marduk-zer-lisˇir and Be¯l-lumur displayed to the assembly of Esagil [the evidence/goods?] that they had confiscated from their houses and [placed under seal] in the treasury of Urasˇ. Afterward, the [assembly . . . .] spoke [to] Belsˇunu, the governor of Babylon: ‘[Bring] Urasˇ-na¯s.ir, who [took] the stolen goods and who fled from Dilbat and has come to you.’ [Be¯l-sˇunu] brought Urasˇ-na¯s.ir and [. . . . . .] to the assembly of Esagil. [. . . . . . . . . .] Urasˇ-na¯s.ir has stolen the goods [. . . . . . .] his [. . . . . . . . .] eighth year of Darius [. . . . . . . . .] they interrogated. [. . . . . . . they placed in] iron. [Then Marduk-zer-lisˇir and] Be¯l-lumur, the scribes, [. . . . . . returned? . . . . . .] to Dilbat. [They spoke] to Urasˇ-na¯s.ir, [son of Nidintu, 37

Published in Durand (1981), no. 6. The following translation relies on the editions in Stolper (1992), 123–5, and Joannès (2000a), 209–11. Although the document can be dated to the late fifth century, probably well after the compilation of the Deuteronomic laws, this by no means implies that the kind of process described by the text was not developed or used previously. On the question of ancient Near Eastern legal practice and issues of dating, see Wells (2004), 158–67. 38

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and Be¯l-ittannu], son of Bullut.u, and Be¯l-us.ursˇu, his son: ‘Make an inventory of [. . . . . . .] that is in the city or the countryside, all that there is, and in place of [ . . . that which was stolen? . . . ] give to the treasury of Urasˇ’.39

The text indicates that a theft of goods belonging to the temple of the god Urasˇ in Dilbat has occurred. Officials from this temple have seized three particular men and their possessions. It is not clear at the outset of the text whether the temple officials have already convicted these men of the theft or will seek their conviction in the near future. Somehow, though, one of the men is able to flee Dilbat and to make his way to Babylon. He is received there by the governor. Two temple officials from Dilbat then travel to Babylon and meet with the puhru sˇa Esagil, the assembly of the Esagil temple in Babylon. They show˘ to the assembly what seems to be at least some of the stolen property. This prompts the assembly to speak to the governor of Babylon and to ask––perhaps, order––him to hand over the third defendant. The governor complies. Several parts of the next section of the tablet are difficult to decipher, but it appears that the assembly of the Esagil interrogates the defendant, decides in favour of his guilt, and orders him to be shackled. The Dilbat officials return to their city with the defendant in tow and, having arrived, convict––if they have not already done so––and punish all three culprits with a fine that must be paid to the temple treasury. As Francis Joannès understands it, the flight of the third defendant, Urasˇ-na¯s.ir, to Babylon is for the purpose of seeking refuge or asylum, and he finds it, albeit temporarily, with the chief local official there.40 Admittedly, the situation described in the document differs in some respects from that in Deuteronomy 19. First, the crime in question is not homicide as in Deuteronomy. Second, because the wrongdoing at issue concerns temple property, it is temple officials rather than city elders or judges who investigate and decide the case. Third, it is not clear whether the officials from Dilbat are acting in a judicial capacity or merely as representatives of the wronged party, namely the temple of Urasˇ in Dilbat.

39 It is not entirely clear what the punishment is. It is almost certainly not the payment of simple compensation to the temple. Standard punishment for theft of temple goods during the neo-Babylonian period was a 30-fold repayment [Holtz (2009), 267–8]. 40 Joannès (2000a), 210.

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Nevertheless, this document provides a model for how the adjudication process might function in a case of city asylum. First, a judicial proceeding takes place in the asylum city with officials from there presiding over the proceeding. Second, a representative group of officials from the city where the crime took place travels to the asylum city. In Durand, Textes Babyloniens 6, these officials have already decided in their own minds regarding the guilt of Urasˇ-na¯s.ir, and they evidently see it as their job now to convince the officials in Babylon to agree with them. Third, the defendant, after having been pronounced guilty in the asylum city, is returned to his hometown where he is punished. If, as seems most likely, the authors of Deut. 19: 1–13 did indeed expect their readers to be familiar with the adjudication process to which their text alludes, it makes sense to view the collaborative process revealed in Durand, Textes Babyloniens 6 as the kind of process that they take for granted. Thus, the Deuteronomic text’s assumption of a well-known process combined with evidence of the use of this type of process elsewhere in the ancient Near East grounds the claim that the general idea of city asylum and the means for resolving such instances were not introduced into Judahite legal thinking for the first time by the Deuteronomic authors.41 This conclusion speaks against the claim for innovation. Scholars, who like Stackert see Deuteronomy’s law on cities of refuge as an innovative text, might wish to argue that this innovation on the part of Deuteronomy’s authors is essentially a literary and not a sociolegal one: it resulted from the creative manipulation of a source text, not necessarily from an attempt to enact concrete changes within Judah’s legal system. While that may or may not be the case, it can become problematic to restrict too severely the ideas at the disposal of biblical authors to their literary sources.42 That the text in 41

It is important to stress here that the kind of process to which I am referring is not like that described by Weinfeld in his discussion of city asylum (1995), 120–32. He cites examples from all across the Near Eastern and Mediterranean world, but all his examples are either about royal decrees granting whole cities exemption from corvée duties or taxation or about holy cities or sites. Not one of his examples contemplates the kind of situation described in the Deuteronomic text. 42 An example comes from Stackert’s question regarding how the concept of a blood avenger (literally, ‘redeemer of blood’) was introduced into the thinking of the Deuteronomic authors (2007), 54 n. 56. He remains undecided but wonders whether the latter believed that such a person was assumed by the process described in the Covenant Code, their primary source text. A fairly clear answer, it seems, comes from

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Deuteronomy 19 so glibly passes over the details of the adjudicative process suggests that it is something in the reader’s non-literary world of knowledge that is meant to fill in the gap. The record of events in the neo-Babylonian text adduced above reinforces the notion that a resolution process for cases of city asylum would have been known to citizens of ancient Near Eastern societies. Perhaps the literary construction of the rule in Deuteronomy has innovative qualities, but like the two-witness rule, the idea of city refuge, as well as its inclusion within the Deuteronomic laws, is not necessarily as innovative as it may appear to be.

Inheritance and the Rights of Fathers A third proposed Deuteronomic innovation relates to the law in Deut. 21: 15–17. The claim is that the law severely limited the right of a father in ancient Judah freely to choose how to divide his estate among his heirs. In 1938, Isaac Mendelsohn wrote: ‘the innovation in this law is the abrogation of the arbitrary power of the father to choose a firstborn’.43 Similar sentiments have been expressed by more recent scholars. In her overview of ancient Israelite law, Tikva Frymer-Kensky stated that this text ‘prohibits a man from making the first-born of his favored wife his first-born; instead, it demands that the first to be born be made the first-born’.44 The text describes a man who has both a ‘loved’ wife and a ‘hated’ wife. Both wives have sons, but the son of the ‘hated’ wife is the elder. The point of the text is to say that the man must allow this son to retain the status of firstborn and thus receive an inheritance portion double that of his younger brother at the time the estate is divided. The text explicitly prohibits the man from elevating the son of the ‘loved’ wife to the status of firstborn. There is a good deal of evidence from across the ancient Near East to show that fathers possessed the right to divide their property other ancient Near Eastern legal texts that employ expressions such as the ‘owner of the blood’ and the ‘owner of the life’––expressions that identify the very same type of person as the Deuteronomic ‘redeemer of blood’. The role of such a person was well established within ancient Near Eastern legal traditions. It does not appear to be necessary for Deuteronomy’s authors to have gained access to this idea through a written text. 43 Mendelsohn (1959), 38–40. 44 Frymer-Kensky (2003), 1018.

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among their heirs however they saw fit.45 It was certainly customary to grant the firstborn son a larger inheritance portion than his younger brothers, and, in the event that the father issued no special instructions about the division of the inheritance, this custom was typically followed. Evidence from a number of regions and time periods even suggests a longstanding and widespread tradition that the firstborn son should receive twice as much as the other heirs.46 The Deuteronomic text indicates that its authors were familiar with this custom, perhaps because it was regularly practised in ancient Judah as well. Should this be the case, it also seems quite likely that they would have known the equally traditional practice of allowing fathers to assign the status of firstborn to sons other than the biologically oldest one. The question at hand, then, is whether or not these authors intended their text as an attempt to overturn this practice and to force fathers always to grant the larger inheritance portion to the oldest son. Even a casual reading of the text would seem to indicate that the law becomes effective only in a very particular situation: when a man has both a ‘loved’ and a ‘hated’ wife. Modern readers tend to understand this situation in terms of a romantic affection or love that the husband feels for the one wife but that he does not feel for the other. They assume it would be quite natural, if unfair, for the husband to favour the one wife and thus offer the status of firstborn to her son. But legal texts typically do not speak in such general terms. A more precise understanding is required. It is necessary to ask what the terms ‘loved’ and ‘hated’, as used in this context, would have meant for the authors of Deuteronomy. An analysis of ‘hated’ wives in Deuteronomy will help to make this clear.47 There are three Deuteronomic laws that refer to instances when a husband ‘hates’ his wife. This text in Deuteronomy 21 is the first. The second comes in Deut. 22: 13. There, a newly married husband is said to ‘hate’ his wife and to bring false charges against her. He claims to be motivated by his discovery that his bride was not a virgin at the time of their wedding. The third reference comes in the prohibition of a particular type of remarriage in Deut. 24: 1–4. The text describes a woman whose first marriage ended in divorce for cause (or with 45 Westbrook (2003), 57–60. Fathers could not, however, completely disinherit a son without grounds; see Laws of Hammurabi 168–9. 46 Davies (1993). 47 For a fuller discussion of this issue, see Wells (2010).

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grounds). That is, her first husband divorced her due to misconduct on her part.48 The text then considers what should happen if her second marriage ends in one of two ways: either her husband ‘hates’ and divorces her, or he passes away. In either case, a remarriage between the woman and her first husband is forbidden. What all three texts have in common is that their respective women were rejected by their husbands and, even more specifically, rejected without grounds.49 In Deut. 24: 1–4, for example, the text is quite clear that the woman is guilty of some act that can serve as legal grounds for the divorce enacted by her first husband. This contrasts with her second marriage, which comes to an end through no fault of hers. She did not cause her husband’s death, nor is she the cause of the divorce––the situation in which the term ‘hate’ appears. The woman in the text from Deuteronomy 22 is similarly innocent of causing her husband’s rejection of her. She was indeed a virgin on her wedding night––her parents later prove this to the city elders–– and is not responsible for any act that can justify her husband’s rejection of her when he tries to rid himself of his newly acquired bride. What distinguishes the hated wife in Deuteronomy 21 from the other two is that no other action accompanies the hate. The second husband in Deuteronomy 24 ‘hates her . . . , writes out for her a divorce statement, puts it in her hand, and sends her away from his house’. The groom in Deuteronomy 22 ‘hates her and brings charges against her’. The wife in Deuteronomy 21, however, is merely hated. The lack of an accompanying action indicates that her marriage has not yet ended and that her legal status is still that of married.50 But something has happened. She has, like the other women, suffered a rejection without grounds, and, while her legal status has not changed, her standing within the household certainly has. The most likely event to reduce her standing in the household is that of a demotion. As far as I know, H. Z. Szubin and Bezalel Porten 48

Westbrook (1986); Ellens (2008), 235–48. This correlates well with findings from other ancient Near Eastern textual evidence. In marriage contracts from both Mesopotamia and Syria, the term ‘hate’ is used only to refer to instances of divorce when the instigating party has found no fault in the other spouse but proceeds to divorce him/her (usually her) anyway. Such a divorce was not illegal but required the divorcer to forgo rights to certain money and property. For example, a husband who so divorces his wife forfeits his right to retain his wife’s dowry within his assets. On these points, see Westbrook (1986), 401–4. 50 Szubin and Porten (2001). 49

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are the first scholars to have suggested this idea. Their 2001 article focused on Aramaic documents from the fifth century bce, which were found at the remains of a Jewish colony on the island of Elephantine in Egypt. They conclude that the term for ‘hate’, when used in the marriage contracts from Elephantine, indicates just such a demotion for a woman. They mention our Deuteronomic text only a few times in passing, but their belief that this is the correct interpretation is clear.51 When a man had more than one wife in the ancient Near East, he often considered one to be his wife of first rank. Texts from a variety of time periods bear this out.52 From the city of Alalakh in Syria, for example, come a number of legal documents dating to the Late Bronze Age. One such text, AT 92, contains a marriage contract.53 It states that the groom may take a second wife in the event that the first, named Naidu, appears unable to bear children. The text goes on, however, to state that, should Naidu bear a son at some point in the future, even if the second wife has already borne sons, ‘Naidu is the great one’ (lines 19–20: fna-i-du-ma galbu-ti). Naidu thus has the chance, if demoted due to her apparent barrenness, to regain the status of first-ranking wife at some point in the future. This tradition of having wives of different rank continued for centuries. From the neo-Babylonian period comes the contract, Wunsch Urkunden 5.54 The relevant part of this document states (lines 2–4 of the reverse): ina u4-mu d[am sˇá-n]i-ti i-tah-zu fdna-bé-e-hi-in-i’ ásˇ--galti ˘ ˘ wife, Nabê-hinnı¯ is (on the day when he (the husband) takes another ˘ innı¯’s the great wife). This neo-Babylonian contract protects Nabê-h ˘ text status as the first-ranking wife more strongly that the previous from Alalakh. She retains this status within the household regardless of whether or not she bears a son. Just as a woman could be divorced either with grounds or without grounds, it is equally evident that a woman could be demoted either with grounds or without grounds.55 Because the term ‘hate’ is associated exclusively with divorces enacted without grounds, the 51

Szubin and Porten (2001), 58–9, 69. See e.g. the discussion in Breneman (1971), 290–2. 53 Published in Wiseman (1953), no. 92. 54 Published in Wunsch (2003), no. 5, pp. 21–4. 55 The contracts cited above from Alalakh and from the neo-Babylonian period confirm the husband’s right, albeit blocked in these contracts, to demote without grounds. Laws of Hammurabi 141 indicates that a man could demote his wife with grounds––on account of her misconduct. 52

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term ‘hate’ in our text from Deuteronomy must refer to demotion without grounds. Moreover, since husbands who ‘hated’ and divorced their wives had to forfeit their right to the dowry, one expects that the husband who demotes his wife without grounds must also forfeit a right that he would otherwise have retained. With the prohibition in v. 17, our text points to precisely which right its authors believed such husbands had to forfeit: namely, the right to demote without cause an eldest son and to transfer the status of firstborn to a younger brother. Far from being innovative, then, this text situates itself within a very old stream of tradition. It assumes that heads-of-household could, as they had for centuries, designate a younger son as firstborn. It assumes that heads-of-household could also demote their firstranking wife to a secondary status––another longstanding tradition. If anything in the text is innovative, it is the choice it makes in determining which right the father must forgo if he demotes the wife without cause. But it is difficult to assess the innovative nature even of this point. It is not at all clear what right a father in this situation traditionally had to give up. A few texts indicate that a man who so demotes a wife must give up the wife completely: her family comes and retrieves her from his household.56 The Deuteronomic restriction is much less severe. For all we know, it may be reaffirming what was already accepted custom in Judah. In sum, Deut. 21: 15–17 concurs directly with what we know of ancient Near Eastern customs and traditions and simply wishes to designate which right in particular a man, who finds himself in the scenario described by the text, must choose to forfeit.

MOTIVATIONS IN DEUTERONOMY Thus far, I have attempted to show that three laws in Deuteronomy, taken as innovative by a number of other scholars, are less innovative than they appear, given the strong connections they exhibit with broader ancient Near Eastern legal practice. I believe that other examples could be cited as well. It is quite plausible, therefore, to see much of Deuteronomic law as part of ancient Near Eastern legal 56

See e.g. the Nuzi text published as no. 84 in Lacheman (1962).

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tradition in general, caught in the ebb and flow of that tradition as were the legal systems of Judah’s neighbouring societies. This understanding, however, raises the question of the particular motivations that the book’s authors may have possessed. What led them to formulate their laws as they did, and what innovative features, apart from cultic centralization, might the book’s laws possess? A full and decisive answer remains elusive, but at least two possible suggestions are worthy of consideration. The first centres on the idea of predictability, the second on the presentation of the laws. First, it seems quite possible that the Deuteronomic authors sought to suffuse the law with predictability. The best example of this comes from the debt-cancellation law in chapter 15. Evidence from other ancient Near Eastern societies reveals that a royal administration would, periodically, issue decrees that cancelled personal debts throughout the kingdom.57 Such decrees also allowed debt-slaves as well as goods and property that had been pledged to and then seized by a creditor to return to their original families and owners. An important feature of these decrees was their unpredictability. One could never be quite sure when a king might make the decree, though it was not uncommon for him to do so shortly after taking the throne. Deuteronomy 15, on the other hand, imposes regularity on debt-cancellation: ‘At the end of every seven years, you shall enact a remission of debts’ (v. 1). This type of regularized forgiveness of debts is unlikely to have worked very well in practical terms. As the time for cancellation approached, credit flows would have ceased, and the economy would thus have been jeopardized by the very measure designed to stimulate it. Perhaps the authors of Deuteronomy 15 believed that monarchs and their administrations could not be trusted to enact such decrees at the proper times (cf. Jer. 34: 8–11). They thus remove this responsibility from the purview of the royal court and turn it into a predictable custom.58 This kind of move towards predictability may lie behind the three laws examined above. The minimum of two incriminating witnesses for convicting defendants establishes a clear evidentiary threshold that all trial participants could expect judicial panels to observe. But this, too, would not have functioned very practically. Ample evidence 57

Westbrook (1995), 154–61. Cf. Otto (2002), 195–239, who argues that Deuteronomy’s move in this regard is a reaction against the threat of neo-Assyrian hegemony and that empire’s particular practice of debt-release decrees. 58

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indicates that the neo-Babylonian courts, though interested in obtaining at least two witnesses for one side or the other as well, often settled for other forms of evidence (e.g. documentary, physical) to decide cases.59 It is hard to imagine that courts in Judah would have operated very differently and strictly observed the stringent two-witness requirement. The establishment of specific cities of refuge in an equitable geographic distribution also promotes predictability. Finally, the law on inheritance can fit this pattern as well. The Deuteronomic authors choose the exact right that a man who demotes one of his wives without grounds must forfeit. Again, though, questions about practicality can be raised. What right must a man forfeit, should he demote a wife––who has no sons––without grounds? Nevertheless, in so far as the law removes the guesswork from an ambiguous situation, this sort of rule may have served the authors’ purposes. On the other hand, a second possible motivation lies in the presentation of Deuteronomy’s laws. This idea carries more explanatory power for Deuteronomy’s family laws than it does, for instance, with the book’s statements on judicial procedure and cities of refuge. If the major innovation within the book was indeed cultic centralization, such a radical idea would require careful legitimation.60 One strategy for legitimation would be to present the book’s central innovative feature as part of a package containing a set of very traditional laws. This may be where Deuteronomy’s family rules, and perhaps laws covering other areas as well, had an important role to play. With their substantial connections to longstanding custom and tradition, they could have provided part of the aura of dignity and legitimacy that an innovation such as cultic centralization would have required. Thus, it is important to understand the potentially innovative features within Deuteronomy’s legal texts in light of the book’s connections with ancient Near Eastern legal tradition. The same applies to the law of the neo-Babylonian period. As R. Westbrook points out, it is in this period that older traditions ‘are exploited in very sophisticated ways, but essentially the legal framework remains untouched. The jurisprudential innovation consists in the refinement of existing principles, not in the creation of new ones’.61 59 60 61

Magdalene (2007), 84–8. The classic study on this is Levinson (1997). Westbrook (2005), 134–5.

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When Deuteronomy is seen in this way, many of the book’s laws appear not to be innovative on a grand scale but to offer minor enhancements to or expansions of rules and practices that were already operative. The desirability of the two-witness minimum appears to have had old roots, but the Deuteronomic authors concretize the idea and make it a regularized part of judicial procedure, much as they do with the idea of debt cancellation and economic law. The use of cities of refuge may well have been a current practice in the authors’ day, but they again systematize the practice with definitive boundaries on how it can be executed. The book’s rule on inheritance also contains only a small but yet definite enhancement of well-established tradition. Whether this sort of systematizing and concretizing gave the authors the legal predictability or the packaging of authenticity––or some other element––that they sought, the connections between Deuteronomy and the traditions of its wider world provide an important part of the necessary context in which to carry out an analysis of its laws and their possible innovations.

REFERENCES Barmash, P. (2005), Homicide in the Biblical World (Cambridge: Cambridge University Press). Breneman, J. M. (1971), ‘Nuzi Marriage Tablets’, Ph.D. diss., Brandeis University. Dalley, S. (1979), A Catalogue of the Akkadian Cuneiform Tablets in the Collections of the Royal Scottish Museum, Edinburgh, with Copies of the Texts (Royal Scottish Museum Art and Archaeology 2; Edinburgh: Royal Scottish Museum). Dandamaev, M. A. (1982), ‘The Neo-Babylonian Elders’, in M. A. Dandamaev et al. (eds.), Societies and Languages of the Ancient Near East: Studies in Honour of I. M. Diakonoff (Warminster: Aris & Phillips), 38–41. Davies, E. W. (1993), ‘The Inheritance of the Firstborn in Israel and the Ancient Near East’, JSS 38: 175–91. Dougherty, R. P. (1923), Archives from Erech: Time of Nebuchadrezzar and Nabonidus, (GCCI 1; New Haven: Yale University Press). Durand, J.-M. (1981), Textes babyloniens d’époque récente (Recherche sur les grandes civilizations 6; Paris: Éditions ADPF). Ellens, D. L. (2008), Women in the Sex Texts of Leviticus and Deuteronomy: A Comparative Conceptual Analysis (LHBOTS 458; London: T&T Clark).

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Frymer-Kensky, T. (2003), ‘Israel’, in R. Westbrook (ed.), A History of Ancient Near Eastern Law (2 vols.; HdO 72; Leiden: Brill), ii. 975–1046. Gertz, J. C. (1994), Die Gerichtsorganisation Israels im deuteronomischen Gesetz (FRLANT 165; Göttingen: Vandenhoeck & Ruprecht). Hagedorn, A. C. (2004), Between Moses and Plato: Individual and Society in Deuteronomy and Ancient Greek Law (FRLANT 165; Göttingen: Vandenhoeck & Ruprecht). Holtz, S. E. (2009), Neo-Babylonian Court Procedure (CM 38; Leiden: Brill). Joannès, F. (2000a), ‘Une chronique judiciaire d’époque hellénistique’, in J. Marzahn and H. Neumann (eds.), Assyriologica et Semitica: Festschrift für Joachim Oelsner anläßlich seines 65. Geburtstages am 18. Februar 1997 (AOAT 252; Münster: Ugarit), 193–211. —— (2000b), ‘Les Textes judiciaires néo-babyloniens’, in F. Joannès (ed.), Rendre la justice en Mésopotamie: Archives judiciaires du Proche-Orient ancien (IIIe–Ier millénaires avant J.-C.) (Saint-Denis: Presses Universitaires de Vincennes), 201–39. Jursa, M. (2005), Neo-Babylonian Legal and Administrative Documents: Typology, Contents and Archives (Guides to the Mesopotamian Textual Record 1; Münster: Ugarit). Lacheman, E. R. (1962), Excavations at Nuzi VIII: Family Law Documents (HSS 19; Cambridge, Mass.: Harvard University Press). Lafont, S. (2000), ‘Considérations sur la pratique judiciaire en Mésopotamie’, in F. Joannès (ed.), Rendre la justice en Mésopotamie: Archives judiciaires du Proche-Orient ancien (IIIe–Ier millénaires avant J.-C.) (Saint-Denis: Presses Universitaires de Vincennes), 15–34. Levinson, B. M. (1997), Deuteronomy and the Hermeneutics of Legal Innovation (Oxford: Oxford University Press). —— (2006), ‘The First Constitution: Rethinking the Origins of Rule of Law and Separation of Powers in Light of Deuteronomy’, Cardozo Law Review 27: 1875–7. Magdalene, F. R. (2004), ‘Who Is Job’s Redeemer? Job 19:25 in Light of Neo-Babylonian Law’, ZAR 10: 292–316. —— (2007), On the Scales of Righteousness: Neo-Babylonian Trial Law and the Book of Job (BJSt 348; Providence, RI: Brown Judaic Studies). Mendelsohn, I. (1959), ‘On the Preferential Status of the Eldest Son’, BASOR 156: 38–40. Otto, E. (1999), Das Deuteronomium: politische Theologie und Rechtsreform in Juda und Assyrien (BZAW 284; New York: de Gruyter). —— (2002), Gottes Recht als Menschenrecht: Rechts- und literaturhistorische Studien zum Deuteronomium (BZAR 2; Wiesbaden: Harrassowitz). Rofé, A. (1986), ‘The History of the Cities of Refuge in Biblical Law’, in S. Japhet (ed.), Studies in Bible 1986 (ScrHie 31; Jerusalem: Magnes), 205–39.

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Stackert J. (2006), ‘Why Does Deuteronomy Legislate Cities of Refuge? Asylum in the Covenant Collection [Exodus 21:12–14] and Deuteronomy [19:1– 13]’, JBL 125: 23–49. —— (2007), Rewriting the Torah: Literary Revision in Deuteronomy and the Holiness Legislation (FAT 52; Tübingen: Mohr Siebeck). Staszak, M. (2006), Die Asylstädte im Alten Testament: Realität und Fiktivität eines Rechtsinstituts (ÄAT 65; Wiesbaden: Harrassowitz). Stolper, M. W. (1992), ‘Late Achaemenid Texts from Dilbat’, Iraq 54: 119–39. Szubin, H. Z., and Porten, B. (2001), ‘The Status of a Repudiated Spouse: A New Interpretation of Kraeling 7 (TAD B3.8)’, Israel Law Review 35: 46–78. Toorn, Karel van der (2007), Scribal Culture and the Making of the Hebrew Bible (Cambridge, Mass.: Harvard University Press). Tremayne, A. (1925), Records from Erech: Time of Cyrus and Cambyses (538–521 B.C.) (YOS 7; New Haven: Yale University Press). Weinfeld, M. (1995), Social Justice in Ancient Israel and the Ancient Near East (Minneapolis: Fortress; Jerusalem: Magnes). Wells, B. (2004), The Law of Testimony in the Pentateuchal Codes (BZAR 4; Wiesbaden: Harrassowitz). —— (2008), ‘The Cultic vs. the Forensic: Judahite and Mesopotamian Judicial Procedures in the First Millennium B.C.E.’, JAOS 128: 205–32. —— (2010), ‘The Hated Wife in Deuteronomic Law’, VT 60: 131–46. Westbrook, R. (1986), ‘The Prohibition on Restoration of Marriage in Deuteronomy 24:1–4’, in S. Japhet (ed.), Studies in Bible 1986 (ScrHie 31; Jerusalem: Magnes), 387–405. —— (1990), ‘Adultery in Ancient Near Eastern Law’, RB 97: 542–80. —— (1995), ‘Social Justice in the Ancient Near East’, in K. Irani and M. Silver (eds.), Social Justice in the Ancient World (Westport, Conn.: Greenwood), 149–63. —— (2003), ‘The Character of Ancient Near Eastern Law’, in R. Westbrook (ed.), A History of Ancient Near Eastern Law (2 vols.; HdO 72; Leiden: Brill), i. 1–90. —— (2005), ‘Reflections on Neo-Babylonian Law’, NIN 4: 133–46. Willis, T. M. (2001), The Elders of the City: A Study of the Elders-Laws in Deuteronomy (SBLMS 55; Atlanta: Society of Biblical Literature). Wiseman, D. J. (1953), The Alalakh Tablets (London: The British Institute of Archaeology at Ankara). Wunsch, C. (2003), Urkunden zum Ehe-, Vermögens- und Erbrecht aus verschiedenen neubabylonischen Archiven (Babylonische Archive 2; Dresden: ISLET).

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12 Job’s Compositional History One More Time: What Its Law Might Contribute* F. Rachel Magdalene

The book of Job is both wonderful and terrible, as many interpreters have noted. In regard to the text itself, Terrance W. Tilley has put the conundrum particularly well: The book of Job is both the masterpiece of Wisdom literature and the most problem-plagued text in the Bible. Its mounting poetic crescendos climax with the overwhelming voice of God from the whirlwind. Its compelling * This chapter builds upon and extends my initial thoughts in regard to the compositional history of Job as first discussed in Magdalene (2007b). There, I did the original comparative work of examining Job’s legal metaphors in light of over three hundred neo-Babylonian litigation and litigation-related documents. I have not cited that work repeatedly in this chapter, as such notes would be extensive and burdensome. Where one wishes more detail on a given point in my basic reading of the trial of Job, one should consult that work. Here, I concentrate on certain aspects of the research regarding Job’s compositional history that I did not develop fully in my prior work. Research in regard to the neo-Babylonian trial documents used in this chapter has been funded by the US National Endowment for the Humanities and its award to Bruce Wells, Saint Joseph’s University, and this author of a Collaborative Research Grant for the project, ‘Neo-Babylonian Trial Procedure’. This chapter is but one of the several results of that project. Any views, findings, conclusions, or recommendations expressed herein are those of the author alone and do not necessarily represent those of the National Endowment for the Humanities, Bruce Wells, or any of the grant’s collaborators. Cornelia Wunsch provided her edition of Nbn 720 with two joins (CM 20 no. 90A) to me; Bruce Wells provided his edition of YOS 19 98 to me. The translations are mine, although I agree in essence with the translations of Wunsch and Wells, respectively. The proper names are in initials for ease of reading. I presented an earlier version of this chapter as ‘Trial Records, Legal Story Telling Conventions, and Job’s Compositional History’, at the 2009 International Meeting of the Society of Biblical Literature, Writings Section, Rome, Italy, 2 July 2009. The feedback that I received there was quite helpful. I give thanks to all for their assistance.

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story of one man struggling with God and God’s world insure its place as ‘arguably the greatest achievement of all biblical poetry.’ Yet the actual text of the book is maddeningly uncertain at crucial places.1

Noting that Marvin H. Pope has called the book of Job the ‘most vexed in the Old Testament’,2 Tillie says, ‘In fact, at crucial points, the text of the book is so indeterminate that the “text” of Job is, to a significant extent, made, not found. A satisfactory text is more a “result” of warranting arguments than a given to be analyzed.’3 Tilley continues, ‘[a]ncient scribes and contemporary scholars emend, rearrange and “improve” Job to an extent rarely appreciated by non-scholars.’4 Tilley, therefore, maintains that this reality puts at question whether Job was ever truly fixed as a text.5 The difficulties that Tilley observes affect the enquiries concerning Job’s compositional history. The array of positions on this question is bewildering. Today, the views range anywhere from the position that the book was written at one time by one author6 to the view that it has an extremely long and complicated redaction history.7 Moreover, no single chapter has remained unscathed by one or more commentators’ opinion that it is a secondary addition to the original book of Job. It may even be true that no verse has remained untouched by biblical critics; with one or another commentator suggesting at some point in time that each verse should be moved, removed, or emended, using source, form, and/or redactional 1

Tilley (1989), 257; quoting Alter (1985), 75. 3 4 Pope (1973), p. xliii. Tilley (1989), 258. Tilley (1989), 258. 5 Tilley (1989), 258, 260, 268. Job certainly has some textual instability. This is evidenced first and most prominently by the amount of literature that is available regarding the textual variations and possible emendations of the Masoretic text. See e.g. Ceresko (1980); Dick (1979); Gray (1974); Michel (1987); Morrow (1973); and Pope (1973). The language of Job does not seem to follow all the normal rules of Hebrew syntax, and the book contains the highest number of hapax in the Hebrew Bible. 6 For a sampling of those who believe the book as we have it was written entirely by one author, see Gordis (1978), 100–3, 110–12, 209–15; Habel (1985), 35–40; Hartley (1988), 20–1; and Snaith (1968), 8. Cf. Whybray (1998). Both Habel and Hartley argue, however, that chs. 24–7 have suffered some dislocations. Good (1990), 8–9 maintains that the author wrote the book at one time, using an older folktale as the narrative frame. He would agree, however, that the Elihu speeches (chs. 32–7) are a later interpolation. Newsom (1996), 323 states: ‘Apart from the Elihu speeches, which seem quite clearly to be a later addition to the book, I confess to being an agnostic on the question of whether the book of Job grew by stages or was written by a single author, although I incline to the latter view.’ 7 See e.g. Fohrer (1970), 325–30 and (1989), esp. 29–42. 2

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criticism, or philological arguments.8 The seeming impenetrability of the text can lead to despair and scepticism concerning whether we can ever answer this question about the book of Job.9 Nonetheless, most biblical scholars retain hope of finding a solution to this perdurable and perplexing question, and a majority view does exist. The majority view of Job’s compositional history maintains, generally, that one very early document, a folktale, containing the current prologue and epilogue (1: 1–2: 13; 42: 7–17),10 underwent a four- or five-stage redactional process.11 First, the folktale’s midsection (which may have recorded the friends as disparaging God and Job remaining steadfast in God’s favour) was removed and replaced by the work of a later poet, who wrote the new midsection (chs. 3–27, 29–31) and added the divine speeches (38: 1–42: 6). The wisdom poem may have been written by this author, or yet another, and was added to the midsection as ch. 28. A much later author-redactor, believing both that Job had bested his friends in the argument and that God’s response to Job was not wholly adequate, wrote and added the Elihu speeches (chs. 32–7).12 Finally, this editor or a still later copyist, being deeply disturbed by Job’s seemingly blasphemous words, rearranged the third cycle of speeches (chs. 22–7) to mitigate Job’s anti-divine rhetoric.13 Nothing is, however, certain. Two recent works have offered profoundly different proposals regarding Job’s compositional history 8 For extensive summaries of earlier positions on the book’s compositional history, see Clines (1989), p. cxii; Pfeiffer (1948), 670–72; Rowley (1963), esp. 162–4. Terrien (1951–7), 884–92, is also helpful for bibliography. For later bibliography on the point, see Hartley (1988), 24–5, esp. 24 n. 17. Cf. Witte (1994) regarding the various positions on the third cycle of the book. The lengths to which diachronic analysis has gone in dissecting and reorganizing the text to find its allegedly genuine form is quite amazing. For one extreme example of this, see Fohrer (1970), 325–30; and Fohrer (1989), esp. 29–42. 9 The frustration and scepticism is most evident in the writing of Edwin M. Good (1990), 1–11, where he addresses these questions in a section entitled, ‘A Dispensable Introduction’. 10 The original document, according to this thesis, is an ancient folktale or epic, which may have had oral antecedents. See most importantly Sarna (1957); Stevenson (1947); and Wellhausen (1871), 555. Contra Clines (1985). 11 This is most clearly articulated by Newsom (1996), 320–3, although she is in disagreement with some aspects of this hypothesis. See also Good (1990), 8. 12 Elihu’s speeches in Job 32–7 have been considered, since almost the beginning of critical scholarship, a late secondary addition to the book of Job. See e.g. Eichhorn (1803), 597–8 and de Wette (1843), 558–60. Rare is the interpreter who disagrees with this position. For examples, see nn. 6, 8 herein. 13 Contra Newsom (1996), 321.

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and dating. David J. A. Clines has recently proposed, in both an article and in the second volume of his commentary on the book of Job, that the Elihu speeches should be moved to a position immediately before the wisdom poem, and the wisdom poem attributed to Elihu as the conclusion to his speeches.14 This is an ingenious proposition. Leslie S. Wilson argues in a new monograph that Job was written entirely by one author in the second century bce, in response to the development of a philosophically incoherent messianism within some branches of Hellenistic Judaism.15 Consequently, this is an excellent time to revisit the question of Job’s compositional history. In thinking about the early discussions of Job’s compositional history, I am reminded of an old aphorism: ‘If all you have is a hammer, everything looks like a nail.’ For a hundred years the biblical academy had a quite limited set of tools, and the proliferation of source and form critical assessments was great, which has left us where we are in regard to Job’s compositional history.16 Of course, now we have many methods, and scholars are beginning to harness them to tackle the question. For instance, Wilson seeks to move beyond our usual tools by using an intertextual approach, reading Job against numerous biblical books and several Dead Sea Scroll documents to solve some of these difficulties.17 Although I have my disagreements with Wilson’s particular method and his results, I respect the originality that he showed in this regard.18 I, too, wish to attempt something new, that is, using legal methodology to examine Job’s compositional history. I first began thinking about Job’s dating and compositional history when I started the work of my dissertation, which ultimately became a monograph.19 Numerous commentators have suggested, over the years, that Job is rich with legal metaphors.20 Silvia N. Scholnick convinced most in 1975 that the legal metaphors add up to some type of embedded legal altercation, although disagreement 14

15 Clines (2005) and (2007). Wilson (2006). Of late, many scholars have questioned this view of the text. They challenge the use of a diachronic evolutionary paradigm to solve every literary problem in biblical texts, especially those within the book of Job. See e.g. Berlin (1996), 201–2; and Good (1990), 182–3. 17 18 19 Wilson (2007). Magdalene (2009). Magdalene (2007b). 20 See e.g. Gordon (1928); Gemser (1955), 135; Köhler (1956); Pope (1979); and Stamm (1944), 99–107. 16

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still exists on the law’s form and import.21 My intention was to study the legal metaphors of Job in the light of ancient Near Eastern legal procedure. I thought initially that I might use the available secondary literature on ancient Near Eastern trial procedure to discuss the legal materials of Job. As I began the work, however, it became clear to me that this approach would be insufficient for several reasons. Most importantly, I wanted to understand the legal procedure of the ancient Near East at first hand; and, in delving into the documents and secondary Assyriological literature, it was clear that the corpus was massive and that it was possible that trial procedure had changed over the course of ancient Near Eastern legal history. That forced me to make some early decisions about the dating of Job in order to select the most appropriate litigation corpus to study. In examining the existing arguments about the book’s dating in the light of my early study, the majority view, that the book was most probably written or assembled in great measure during the exilic or post-exilic period, made the most sense.22 Consequently, the neo-Babylonian litigation corpus was the best comparative sample to my mind. Significantly to the study at hand, the value of Scholnick’s legal insight has not yet sifted down to the question of Job’s compositional history. This has re-occurred in the recent proposals of both Clines and Wilson.23 Because my original project was not fundamentally 21 Scholnick (1975); cf. Scholnick (1982) and (1987). For a sampling for those who followed her lead, see Chin (1994); Good (1990); Greenstein (1996); Habel (1985); Sheldon (2002); and Zuckerman (1991). 22 While dating of biblical books must always be tentative, the best non-legal arguments allow for a fifth-century date for the book of Job. For various explications of this position, see e.g. Dhorme (1984), pp. clxix–clxxi; Roberts (1977); and Rowley (1963), 173. This was, and I believe remains, the majority view. Rowley (1983), 21. For early bibliography on the range of dating, see Clines (1989), pp. cxii–cxiii; Rowley (1963), 173–4; and Rowley (1983), 21–3. I argue for the fifth century bce, rather than the fourth, based upon the congruity of the Hebrew and Aramaic versions of the book of Job found at Qumran (11QtgJob and 4QtgJob). (While 11QtgJob follows the Hebrew Vorlage closely, there are a few significant differences, including: a terminus at 42: 11; the substitution of 42: 3 with 40: 5; a different ordering of the lines from 37: 16–18; and a reference at 11QtgJob 25: 7 [= Job 34: 31]. The Targum also maintained the LXX reading of 13: 15. For additional discussion, see Crenshaw (1992), 867 and Tov (1992), 149). Furthermore, in my view, Job’s understanding of death is very much in line with the prophets and the Psalms and does not seem to reflect Zoroastrian apocalyptic thinking, which began to influence Judaism in the late Persian and Hellenistic periods. 23 Clines (2005), (2007), and Wilson (2006). While both these authors address law, it is a less significant component of their discussions and has little to do with their view of the dating or compositional history of the book.

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about Job’s compositional history, my remarks were also limited in these regards. Yet, during my work, it did become clear to me that the legal materials were of utmost importance on the key questions of compositional history and dating. Consequently, I wish to take up these questions more fully than I have in my previous work. Here, I can address (and only briefly at that) the question of Job’s compositional history. My particular focus will be what a study of the overall form of ancient legal trial narrative and trial ‘transcripts’ take and what those might contribute to our thinking about the book of Job. My methods are primarily from the realms of comparative legal historical studies and modern legal hermeneutics, rather than from form, source, or redaction-critical methods. I suggest that, if the book should, indeed, embed a literary trial, it surely then must also embed, as part of that literary trial, the party and witness narratives offered at trial. If such trial narrative is precisely identical to other literary narratives, then this narrative cannot help us determine in any way Job’s compositional history. If, however, such legal narratives should vary to a significant degree from literary narrative, then traditional source or form criticism alone cannot solve the compositional problem as they are fundamentally literary-narratological methods based in the typical modern assumptions in regard to literary genre and narrative coherence, which are in themselves open to question.24 Should trial narratives constitute a different genre and have, in fact, different rules in regard to coherence, then we need a new or supplemental method in order to investigate the book’s compositional history. My conclusion is that Job, indeed, contains a literary account of a trial. Trial narratives are a genre different from literary narratives and have five special attributes. These attributes can help us solve some of the compositional historical questions of the book of Job. When the legal materials of the book are compared against ancient Near Eastern trial records, using comparative legal historical and legal hermeneutical methods, the book manifests fewer literary fractures than previously thought; many of the so-called literary fractures resemble the normal legal story-telling conventions of the ancient 24 As Good (1990), 8, cf. 183, critiques: ‘The conjectures [as to the composition of the Book of Job] represented by this [majority] view are based on careful, close scrutiny of the text of Job. They presume that incoherences within a text cannot be original to it because authors do not write texts with incoherences. Therefore, incoherences betray the presence of some mind other than that of the “author.” ’

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world. In order to demonstrate this, I take up first the features of trial narrative and then examine the legal altercation in the book of Job in the light of these features.

THE FEATURES OF TRIAL NARRATIVE Trials are all about stories.25 The parties to trials, whether they are individuals or the state, have each constructed a narrative around the events that give rise to their legal position. Furthermore, they usually tell this story to their opponent/s in attempting to settle the dispute before going to law. If the parties do not settle, usually one party will file a formal legal accusation in a trial court that has been empowered to hear such cases. The accusation begins the legal case itself. During pre-trial legal procedures, the parties may seek additional information in order to develop further their stories for trial. Pre-trial investigations of criminal matters are common. A vast number of cases are settled before going to trial. If a given matter is not settled before trial, the parties will tell their stories to the trier of fact, whether it is a judge or jury in the modern setting or a panel of judges or an assembly of freemen in the ancient Near East. In this process, the parties may testify; they may bring other witnesses to testify; and may offer other types of evidence––such as documentary, physical, and circumstantial evidence––to assist them in telling their story to the trier of fact. The trier of fact will decide whose story, or which parts of the various stories, it should believe. Trial stories have, according to Peter Gewirtz, five special attributes that distinguish them from the usual literary or story narrative.26 First, one must have multiple stands of narrative. Second, these narrative stands must arise from different points of view, conflict in significant regards, and involve a conflict that is one in which the community will become involved. This constitutes the need for and ability of the community and, therefore, the legal system, to resolve 25 Gewirtz (1996), 7, observes: ‘As a descriptive matter, we all know that trials involve the telling of stories.’ 26 Legal narratives have much in common with other types of narrative. We can usually recognize a story when we hear one in whatever setting it arises. Nonetheless, some differences exist between legal and non-legal stories due to the nature of a trial and how much is at stake. Gewirtz (1996) describes these various differences for us at length.

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the dispute. This is true because not all disputes are of a nature that they will involve the community. Thus, the conflicted narratives must involve some issue of substantive law that the community has designated as important for it to resolve, for the sake of the community as a whole. Third, the stories must have a persuasive quality and compete for supremacy before the community or a legally authorized tribunal that represents a larger community or given society.27 In other words, something of consequence must be at stake for which the narratives compete through their persuasive character. Additionally, at least one of the parties must have sought judicial/communal relief, using the appropriate procedure of that community or society to begin legal proceedings (herein called a ‘formal legal accusation’). Fourth, the narrative strands are typically fractured. They are not told in a straightforward, uninterrupted, chronological or logical order. Instead, the stories of the parties are constructed from the testimony of parties and their witnesses and through other forms of evidence that the parties’ admit.28 In a modern trial, it is rare indeed to have only the two witnesses, the plaintiff and/or victim and the defendant. Rather, the plaintiff/prosecution will usually produce several witnesses. Witnesses may speak once through examination and, possibly, again during cross-examination, but witnesses are also subject to recall by the party who introduced them or by the other 27 ‘[O]ne side’s narrative is constantly being met by the other side’s counternarrative (or sidestepping narrative), so that “reality” is always disassembled into multiple, conflicting, and partly overlapping versions, each version presented as true, each fighting to be declared “what really happened”––with very high stakes riding on that ultimate declaration,’ (Gewirtz 1996, 8). 28 ‘[O]ne side does not get to tell its story, then the other side. Instead, the main part of each side’s story must be presented through evidence, not by a single person in a continuous narrative. Each side has to present its story by calling witnesses to offer elements of the story piecemeal . . . Witnesses, moreover, do not usually tell their stories as uninterrupted narratives. All stories must be elicited by a series of questions and answers, and the form of the questioning and answering is governed by an elaborate system of rules. In addition, because a witness’s knowledge of the case is usually selective, that person’s story is rarely a narrative with beginning, middle, and end (rarely, at least, do its beginning, middle, and end correspond to those of the plaintiff’s or defendant’s narrative). Rather, a witness’s story usually furnishes discrete pieces in a mosaic whose overall shape emerges only as the trial progresses. Neither side is allowed to keep its perspective uninterruptedly before the decisionmaker until its overall story can be fully presented. Instead, immediately after one side elicits a witness’s story, the opposing side cross-examines, thereby introducing the opposing side’s perspective even as the first side’s story is unfolding’ (Gewirtz 1996, 7–8).

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side. Consequently, a given witness may speak multiple times in the course of a trial. This fractures their narrative line. The stories of witnesses are further fractured through the typical question and answer form of legal interrogation, or testimony taking. Although such fracturing is typically more profound in adversarial legal systems (such as found in the modern Common Law systems), all trial narratives are fractured to some degree.29 Another important aspect of this fracturing is not discussed by Gewirtz but is critical to mention. Certain key witnesses and their statements may remain central throughout the trial narrative. Others witnesses may appear only briefly and disappear; hence, players in the trial’s course come and go from the trial narratives. Finally, one essential party may not speak at all. In a criminal trial within some adversarial legal systems, the prosecution cannot call the defendant at all. Hence, it will use other witnesses to build its case. The defendant will have to take the stand in an inquisitive system, but even here, typically the defence also examines the prosecution’s witnesses and will produce some of its own.30 It, therefore, is not narrative cohesiveness and coherence that determines who speaks, when, and how often, but instead the needs of the parties to the trial in building persuasive cases and the general law of legal procedure in the given jurisdiction, a point I will address further momentarily. Additionally, we often have speakers who address each other in trials; but, at times, a witness may have information that no one else possesses and/or may address no other witness testimony. Additionally, witnesses may talk past each other, not hitting on the points of others in their assertions regarding the matter before the court. In some situations, non-party witnesses are sequestered so that no witness can specifically address the views of another witness. Consequently, the manner of constructing the coherence of trial narratives must be, and is, far different from that of other types of storytelling or literature. Trial narratives cannot be read only in sequence as we normally read literature. Different pieces must be fitted together like a mosaic or puzzle, and only at the 29

Jackson (1991), 161–2 rightly points out, however, that the law’s stories are substantially less fractured under inquisitorial systems of adjudication (such as those of the ancient Near East and modern Civil Law systems) than they are in adversarial systems. This results from inquisitorial systems’ cooperative approach to conflict resolution, which is not the basis of adversarial systems. The trials of inquisitorial systems, therefore, do not show the heightened level of conflict or story fracturing that one finds in the trials of adversarial systems. 30 See n. 29.

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end may anyone see how pieces do or do not fit. That is, in fact, the task of the trier of fact, which would not be necessary if all the evidence was consistent and without fracture. Fifth, what is told, and how, when, and by whom it is told is not determined entirely by the parties alone. These issues are all highly regulated by the rules of legal procedure, including the rules of evidence, that are applicable in the relevant legal jurisdiction. Legal procedure is, in fact, the law that regulates legal narrative and is usually the instrument that ensures narrative fragmentation.31 Hence, each trial narrative must exhibit the operation of legal procedural rules in order for it to be a trial narrative, and we should see in the records evidence of a formal legal accusation, the taking of evidence, and other trial procedures. These five attributes are of critical importance in distinguishing legal narrative from normal literary narrative and in understanding the course of a trial. They also make us aware that the narrative strands of the parties to a trial disobey the normal rules of literary coherence. As indicated above, this gives the triers-of-fact one of their key tasks: to sort out the narrative fragments into a coherent whole that will bring them to their findings. Let us now examine a few actual litigation documents from the ancient Near East to determine whether these same attributes of legal narrative existed in ancient times. The primary text I use is Nbn 720, plus two joins.32 This document, coming out of the royal courts of Babylon during the reign of Nabonidus, is an excellent example of a verdict record. Usually, ancient Near Eastern legal records are extremely brief and cryptic because they served primarily as a mnemonic device for the victor in the case. Consequently many details are omitted. The royal judges of Babylon in the neoBabylonian period, on the other hand, tended to produce somewhat fuller records that offer more information to the reader, which is why I have selected one of them to use as the prime exemplar.33 Their verdict documents typically contain a record of the plaintiff’s formal legal accusation and request for judgment, the defendants’ statement, the judges’ investigation and request for additional 31

Gewirtz (1996), 9, therefore, calls procedural law the ‘law of narrative’. Yielding a complete line count, and published most recently by Cornelia Wunsch in CM 20 no. 90A. The duplicate, TCL 13 219, is incomplete. 33 For further on the neo-Babylonian royal judges and their verdict documents, see Wunsch (1997–8) and (2000), and Holtz (2009), 23–67. 32

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evidence (where needed), the rationale for the verdict, and the verdict.34 Due to the record’s relative fullness, we can observe the five features of legal narrative, including fracturing and a great deal of neo-Babylonian legal procedure: I.M.B. spoke [thus to the] judges of Nabonidus, king of Babylon: ‘Sˇ. and B. have presented to me an IOU for five minas of silver, owed to R. at their debit, for which their field at the Hazuzu canal has been taken as a pledge–– and this aforementioned field has˘been sold for silver to N.A.I., my father–– and ‘give us half a mina of silver, and we will give you the IOU’ (they have spoken). I took hold of the record and spoke to them: ‘Who is (the creditor) R., who took the field from you as pledge?’ Sˇ. grabbed the aforementioned record from my hands and ground it with his teeth. Render us a verdict!’ The judges questioned Sˇ. and B., and they spoke thus: ‘This IOU is paid in full and what I.M.B. told you is the truth. (But) we did not bring a tablet before you in order to litigate against him. It is he who has brought us.’ The judges spoke to them, thus: ‘Bring R., the creditor (literally: ‘owner’) of the IOU, before us!’ Sˇ. and B. did not bring the creditor of the IOU. They contradicted their testimony and spoke thus: ‘We do not know R.’ They heard their words, and (that) they had the IOU of R. (as creditor) written––for which the field that had been sold to N.A.I. was (supposed to be) a pledge for R.––and brought it before I.M.B., and (that) Sˇ. had ground it with his teeth, and (that) they have spoken, ‘We do not know R’ (the judges took into account). The judges deliberated, and the IOU that Sˇ. and B. had brought––it turned out to be a lie in their eyes. The five minas of silver that were written in the aforementioned IOU, they decided (to charge) against them tenfold and awarded them to I.M.B.; and so that they bring the scribe who had written the record, they put them in fetters and handed them over to I.M.B.

In spite of how full this record is in comparison to many other ancient Near Eastern litigation records, one can see on first reading that the document is, nonetheless, still quite brief and somewhat obscure. Some words must be supplied in the reading above, and much content is implied or only understood in its greater social and 34 For a typology of various neo-Babylonian litigation documents generally, see Holtz (2009). Although he and I often use different terminology and may understand differently the legal effect of a given type of document or clause within a document, the typologies are, nevertheless, extremely helpful in comprehending the various components of these ancient trial records.

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legal contexts. We, therefore, can immediately detect the overall problem of incomplete narrative and narrative seams in litigation texts generally. The reader must attempt to fill in the gaps in the narrative for the document to make complete sense. Let us look more closely, then, at this record. First, we learn that I.M.B., the plaintiff, filed a complaint in the royal courts of Babylon. The judges of Nabonidus heard the case. Thus, we are in a forum that is fully and legally empowered to settle judicial matters for the neo-Babylonian king and community. The formal legal accusation (here given in the form of a statement) is that Sˇ. and B. attempted to extort silver from I.M.B. using a fraudulent debt note, which is an actionable substantive legal crime in the neoBabylonian legal system.35 I.M.B.’s accusation and testimony is that Sˇ. and B. presented an IOU for five minas of silver that was allegedly owed by Sˇ. and B. to one R. This debt note was supposedly secured by the pledge of their field at the Hazuzu canal. According to I.M.B.’s ˘ to N.A.I., I.M.B.’s father, by Sˇ. and testimony, the field had been sold B. The land was now apparently in the possession of I.M.B. I.M.B. testifies that Sˇ. and B. came to him, asserting that the land they conveyed was subject to the pledge; but, for a mere one-half mina of silver, they would give the debt note to I.M.B. I.M.B. is a member of the Egibi family, one of the important business families of the era.36 From the Egibi archive as a whole, one can determine that I.M.B. is one of the family’s very active and astute businessmen. His business status would have placed him in the position to know most of those in the area capable of loaning five minas of silver, a considerable sum. Apparently, he suspected extortion here and demanded to know more about the creditor R. before bringing the case to court. Having been apparently found out, Sˇ., per I.M.B.’s testimony, grabbed the IOU and destroy it by chewing the clay tablet to bits with his teeth! I.M.B., therefore, brought the scoundrels into court for the fraud. He has now, unfortunately, a potential problem: Sˇ. destroyed the tablet upon which the fraud was based. In court, the evidence could, therefore, come down to a contest of testimony: his word against theirs. Nevertheless, I.M.B. goes to court, testifies, and asks for a judgment. 35 For a brief summary of the substantive areas of law in the neo-Babylonian and Persian period, see Oelsner, Wells, and Wunsch (2003), 926–67. 36 For additional information on the Egibi family, see Ungnad (1941–4); van Driel (1985–6); Wunsch (2000); and Abraham (2004).

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The judges now proceed with a mid-trial investigation of the facts. In an inquisitive legal system, as we find in the ancient Near East, judges are permitted to investigate the case and to ask questions of the parties and witnesses at trial. Moreover, defendants did not have any protection against self-incrimination. Consequently, when Sˇ. and B. were subject to interrogation during the investigation of this case, they had to make a defendant statement. Their statement is that a debt note had existed but that it was already paid. Even though they assert that I.M.B. has spoken the truth, they, in fact, take a position that conflicts with his testimony, i.e. the debt note has been paid in full. In this manner, they are asserting that they did not try to extort any money from him. Then, they make what seems to be an odd statement. They assert that they did not bring the tablet to court to litigate the matter; in other words, they are the defendants in the case. At first glance, this statement seems to have little to do with I.M.B.’s testimony. Why do they raise this issue? This must constitute their rationale to the court for not producing the tablet. The tablet is missing not because Sˇ. ate the tablet, they imply; rather, it is missing because they are not the plaintiffs in the matter. The plaintiff must have the burden of proof and have to produce the fraudulent tablet if this strategy can be successful. Consequently, the multiple, conflicting strands of narrative, each of which seeks to persuade the court of the veracity of its account, emerge in the record. Further, we can observe that Sˇ. and B. are attempting to exploit the legal rules regarding burden of proof at trial to their advantage.37 I explore this further. In periods prior to the neo-Babylonian period, ancient Near Eastern courts tended to ask the gods to judge a dispute where the evidence hung in the balance.38 If two parties produced an equal 37 For additional materials on the burden of proof in neo-Babylonian law, see Wells (2004), 108–30. 38 For most of ancient Near Eastern history, supra-rational evidence was typically introduced where the available rational evidence was insufficient to determine the case. Jas (1996), 73. The court-ordered assertory oath was typically taken at the end of a suit by one of the parties and disposed of the case in favour of the party who took the oath. This type of oath, therefore, was a ‘dispository oath’. The dispository oath predominated in the Old Babylonian period and retained importance through the neo-Assyrian period. There is much literature on the dispository nature of most oaths and ordeals in the ancient Near East. For just a few items of the bibliography, see Blank (1950–1); Bottéro (1981); Frymer-Kensky (1977); Lafont (1997); Lieberman (1969); and Loewenstamm (1980). The relevant documents give us only limited information about the oath process. We do know, however, that the

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weight of legal evidence at trial, the judges would order one of the parties, typically the defendant, to take an oath. If the defendant did so, he would be innocent.39 Such an order was often recorded in a conditional verdict document (a Beweisurteil document) that stated that, if the individual took the oath, he would be innocent.40 In the neo-Babylonian period, we find extremely little documentation of court-ordered oaths (and no ordeals) that will resolve the case in favour of the oath-taker.41 Oaths now might add weight to the testimony but would rarely dispose of the case.42 This rejection of the dispositive oath raised an important new problem, that is, how to resolve close cases. In the neo-Babylonian period, this was commonly replaced by the courts’ demand for additional rational evidence. The court typically requested a second witness (mukinnu) or a dispository oath was a very formal affair, typically administered by the temple. At the time of oath-taking, the court typically moved to the site of the oath, most commonly the temple, or the temple gate, where the actual oath was performed, although on rare occasions a symbol of the god was moved to the site of the dispute. See Postgate (1992), 280. The ritual usually involved stating the oath before some divine statue or emblem. See further Dombradi (1996), i. 330. 39 The court commanded the oath from the party of its choosing. In the Old Babylonian period, that was typically the defendant. Dombradi (1996), i. 330. 40 Before the oath was taken, the court might issue a t.uppi burtim, in which the court set forth its decision, conditional upon the required swearing of the formal oath, at which time the court would give the verdict final effect. Postgate (1992), 281 and Ries (1989). In the words of Veenker (1967), 45–53, quote on 47, these documents were ‘a “conditional” verdict, which was to become effective after the swearing . . . ’ For further see also CAD B 339. 41 Wells (2004), 108–30. See generally Sandowicz (2012) on oaths in the neoBabylonian period. 42 In the Old Babylonian period, a weakened form of the oath also existed. Such oaths did not necessarily resolve the case; but they did increase the weight of the witness’s testimony in meeting the party’s burden of proof. E. Dombradi (1996), i. 330–1 calls this ‘hardening’ the evidence. Any party or witness might have taken it, and it added more weight to the evidence he or she offered. We see the weakened oath in Nuzi, as well. Frymer-Kensky (1981). This oath might not necessarily be courtordered. Dombradi (1996), i. 331 asserts that it is very difficult to tell in which situations the Old Babylonian courts might seek the weakened oaths from parties or witnesses. It is possible that parties and witnesses offered them primarily on their own initiative. The non-dispository oath did not typically comply with all the formalities of the significantly more common dispository oath. For example, in the Old Babylonian period, the declarant did not swear the weakened oath by the gods. Dombradi (1996), i. 331. Usually, it was just sworn by the king. The great majority of oaths were, however, formal dispository oaths. This apparently remained true through the neo-Assyrian period, based on the published litigation records. The neo-Babylonian corpus is quite different in that we find a large number of nondispositive oaths, and a very few dispositive oaths.

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second accuser or informant (an accuser for the benefit of another) (ba¯tiqu) to appear, although other forms of rational evidence might be requested instead of the testimony of a witness. Thus, the condition of the condition verdict document was now that more rational evidence would be produced rather than the oath taken. In other words, when more evidence was forthcoming, the case would be resolved in favour of one party or the other, depending upon who held the burden of proof. I offer here one example of a record that demands a second witness or informant/accuser, YOS 19 98, which also comes from the time of Nabonidus, although from the temple court rather than the royal court: On the day when a witness or an accuser/informer has come and has proven (against) N., (that he) deposited with her either silver or gold or [. . . . . . .]––apart from the 1 shekel of [. . . . . . .] silver which N. disavowed, saying, ‘He has given (it) to [PN]’––then she has stolen whatever he deposited with her from the Lady-of-Uruk.43

In this case, the evidence to convict N. of theft was insufficient. The court ruled that, when an additional witness or accuser/informant beyond the unstated original informant or temple accuser comes forward, the defendant will be considered to be a thief and to have stolen temple silver. The plaintiff has the burden of proof. In Nbn 720, the same potential problem exists due to the destruction of the fraudulent tablet. We can observe the court’s solution to potentially equal oral testimony in the record. It demands that Sˇ. and B. produce the alleged creditor R. as a witness so that it may hear his testimony about the matter. That evidence would tip the scales in favour of one party or the other. This demand that the defendants produce the alleged creditor also fractures the narrative. The case no longer has two conflicting narratives wherein each side tells its entire story from start to finish without interruption. Instead, we have interruptions in the narrative flow that fracture at least one of the narratives. First, the court must give Sˇ. and B. time to bring R. to court. The seamless narrative line of the defendants has been broken. Second, we do not yet know for whom R. might testify. Thus, we do not yet know whose story will proceed next. We now learn from the document that Sˇ. and B. cannot, in fact, produce R. The reason, they claim, speaking a second time to the 43

From the edition provided in Wells (2004), 172–3.

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court, is that they do not know R. personally. The implication is that they never had any face-to-face dealings with him; and, as a result, they cannot bring him to court to give evidence in the case. In the end, I.M.B. speaks once, and Sˇ. and B. speak twice. Had Sˇ. and B. actually been able to produce R., he would have entered the narrative late to testify and then disappeared from it. We will see this fracturing still better in another case that I will discuss once we have finished addressing Nbn 720. The result of the evidence presented in Nbn 720 is that the court believes the story as told by the plaintiff. The judges cannot trust the defendants’ version of the events because their story is incredulous. The court finds that their story is ‘a lie’. This piece of information is particularly beneficial because it reveals the overarching narrative that the court has determined during the adjudicatory process. Not all trial verdict documents, ancient or modern, contain the court’s rationale. Consistent with its finding of the facts, the court renders a verdict in favour of I.M.B. in the amount of 5 minas (the amount on the fraudulent note rather than the sum that Sˇ. and B. actually attempted to extort) tenfold, or 50 minas, for the fraud. Moreover, they order Sˇ. and B. to be bound in fetters and handed over to I.M.B. so that they will implicate the scribe who assisted them in the fraud–– that the scribe may also be tried. This also demonstrates the power of this court and the extent of judicial remedies that it has at hand. As one reads this record, one can observe much legal procedure in operation. We have direct or indirect textual evidence of an accusation/plaintiff statement; the defendants’ statement; the judge’s right to carry out an independent investigation during trial, to demand the production of third-party witnesses, and to question all witnesses; the need for additional rational evidence where the evidence hangs in the balance; that a trial might occur in phases; the ability of parties to speak a second time at trial; the judges’ deliberation process; the judges’ rendering of a verdict; some of the range of sanctions that might be assessed against a guilty party; and the right of judges to order production (and presumably the detention) of accessories to the crime. This scribal narrative of the case, therefore, demonstrates all five of the special attributes of trial narrative: (1) multiple narratives exist that arise from different perspectives; (2) are in conflict over a matter of substantive law; (3) seek to persuade a legally authorized tribunal because a matter

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of consequence is at stake; (4) are fractured by trial events and evidence-taking; and (5) are controlled by or harness the rules of legal procedure, including evidentiary rules. Now that my discussion of Nbn 720 is complete, I will analyse yet one more case, RA 67 148–9 (Arnaud 67), which was also before the royal judges of Nabonidus. This document reflects the testimony of four people and thus exhibits greater fracturing than does Nbn 720. Here, we can observe how some persons remain salient throughout the text and others disappear from it: M.A.I, the primus inter pares of the of Isˇtar-of-Uruk, and B., the scribe of Eanna, brought N.-h., a slave woman whose wrist is marked with ˘ a star and inscribed for Nanaya, and T., her son, whom she (had) with N., before the judges of Nabonidus, king of Babylon, and they spoke thus: ‘This slave woman is a temple oblate (dedicated) to Nanaya.’ N. answered thus: ‘I have led away N-h for silver, and when she escaped from my house in ˘ the reign of king Ame¯l-Marduk, she had a star marked on her wrist and an inscription to Nanaya written on her wrist.’ The judges asked N.-h., and she spoke thus: ˘ ‘(Already) before N. (bought me) for silver, my former owner, M.E.L., dedicated me to Nanaya.’ The judges heard her words and brought in an alphabetic scribe, and he inspected N.’s wrist, and spoke thus: ‘An old inscription to Nanaya from days long gone is written on her wrist, and a second inscription for Isˇtar-of-Uruk is written below the previous inscription.’ The judges spoke to N. thus: ‘Why did you lead away a slave woman who was freed (for service) to Isˇtar-of-Uruk, marked with a star on the back of her hand and whose wrist is inscribed to Isˇtar-of-Uruk and Nanaya? And you yourself said thus: “In the reign of Ame¯l-Marduk, king of Babylon, the slave women escaped from my house and had the back of her hand marked with a star”? Why in those days back then did you not bring her before the judges to have her case investigated, and your case against the man who inscribed her wrist settled, (so that) you (now) do not have (a claim) upon N.-h. and her son T.?’ ˘ The judges deliberated, and they assigned N.-h. and T. to the workforce of ˘ Eanna. N. will dispute (the case) with the guarantor (for the one) who sold him the slave.44

44

From Arnaud 1973.

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We note here that M.A.I., who is also a member of the Egibi family and who is associated with the Eanna Temple, and B., a scribe of the Eanna temple, brought a slave woman N.-h. and her son T. (who may be the natural son of the defendant N.) to˘ the judges of Nabonidus for a determination that the woman and her son belong to the Eanna. Hence, a matter civil in nature is before the court. Their accusative statement is not, however, recorded directly in this tablet as a quotation as in Nbn 720. Rather, we learn from our scribal narrator that the slave woman has the temple mark of Nanaya (who is worshipped with Eanna and whose seat is also the Eanna temple) on her. When M.A.I. and B. noticed the mark, they must have brought the matter to court for the Eanna. The defendant N. states that he bought the slave N.-h. for silver from a seller, implying that he ˘ was an innocent in the situation. He also says that N.-h. ran away from him before Nabonidus became king, and, during ˘her escape, she had the temple mark of Nanaya inscribed on her. Thus, his testimony is in essence that she did not have any slave mark on her hand when he bought her; he bought in good faith; and N.-h. and her son belong rightfully to him because the slave mark is a˘ forgery. The judges then question the slave. She testifies that the seller, her former owner M.E.L., inscribed the temple mark of Nanaya on her, thereby dedicating her to the Eanna. This testimony, if true, would mean that the seller did not have the right to sell her. Whether or not the buyer (our defendant) was actually aware or should have been aware of this is legally irrelevant in regard to whether the buyer may keep goods to which he, in fact, does not have good title. In the ancient Near East, buyers who did not acquire good title at sale are liable to turn over such goods to their rightful owner and may sue the seller for damages as relief.45 This would make the Eanna temple her rightful owner. She is, thus, the case’s second accuser/informant against N.46 The judges do not, however, immediately award her to the Nanaya temple as might be expected where we have first accusers and a second accuser. It may be that the testimony of N. was especially convincing. The judges, instead, seek still more rational evidence and call an expert scribal witness, who testifies that two inscriptions can be seen on the slave woman: an older temple mark, dedicating her to Nanaya; and a newer mark, dedicating her to Isˇtar. Now, the judges are able to form 45

See Magdalene, Wells, and Wunsch (2008) and Westbrook (1994). Slaves and former slaves had the legal capacity to sue and/or testify regarding their status as slave or free. Oelsner, Wells, and Wunsch (2003), 921. 46

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their opinion. Thus, they ask in an apparently rhetorical manner why the defendant had a slave who had not one but two temple marks on her! If she, indeed, had no temple mark on her when he had purchased her, he certainly would have, or at least should have, gone against the person who had helped the slave woman by inscribing the mark on her and immediately settled title to her, which came into question with the mark. The court thinks, with all the evidence in, that the defendant’s story is not completely accurate, and it awards possession of N.-h. and her son T. to the Eanna. In fact, the court ˘ believes most strongly the expert testimony that the slave had an ancient mark that had faded. She may well have run away, not liking her new owner, and had the new mark put on her to ensure that she went to the Eanna. At this, N. should have tried to settle the matter of the false inscription but did not because he knew the slave had been dedicated earlier to the Eanna. It may be that the mark was sufficiently faded that, at the time of sale, the buyer was not aware of the dedication but later did become aware of it. Consequently, the court states that N. has a claim against the seller for the sale of a slave that the seller had dedicated to the temple. Obviously, the seller was not available to be a witness in court and may have absconded. The court, therefore, instructs N. to sue the seller’s guarantor for his loss. It is possible that the buyer is also criminally responsible to the temple for withholding the slave, but that is probably within the original jurisdiction of the temple court and not the royal courts. This case also has the five special attributes of legal narrative: multiple strands of conflicting, persuasive, fractured narrative, concerning a matter of law, offered before a legitimately empowered tribunal, where the narrative is regulated by the rules of legal procedure. It confirms what we learned from Nbn 720. I present RA 67 148–9 (Arnaud 67), nonetheless, because of the complexity of the witness testimony. First, we note that the formal legal accusation of the two primary accuser/informants in the case is not directly recorded via a quotation, and they never appear in the record again. Second, the defendant speaks only once, although he is addressed later by the court and is mentioned in the verdict. Thus, he does not disappear entirely from the record. Third, the slave woman (who is both the case’s second accuser and the subject matter of the dispute) also speaks only once, although we again hear about her in the court’s disposition of her and her son. Fourth, an expert witness is called to offer his opinion regarding the slave woman’s marks. He

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makes his statement and disappears from the record even though his testimony is that which is apparently most convincing to the court. Witnesses do not testify multiple times in this record, thus interrupting and fragmenting each other. We can see, however, that ancient trial transcripts may be written in such a way that some witnesses remain central, while others appear on the scene suddenly and depart as quickly. In this tablet, the first and main accusers are virtually absent from the record, whereas the second accuser is the more central witness. Nonetheless, she makes her statement in the second half of all witness testimony. The expert witness’ testimony decides the case, and he speaks last and only once. Key witnesses simply do not have to appear throughout a record. This is part of the fractured characteristic of trial narratives. We can now conclude that both ancient and modern trial narratives demonstrate the five attributes that make them different from those of general literary narratives. I, therefore, suggest that trial narratives, whether ancient or modern, constitute a different genre of narrative because they have these five special features. The highly fractured nature of the narratives also does not allow the normal rules concerning literary coherence to apply. One has to read the narrative differently and sometimes non-sequentially to find its coherence. The question that I wish to explore next is whether literature that embeds a trial in the main narrative will replicate these five features in its telling of the trial story.

LITERARY TRIALS AND THE FIVE ATTRIBUTES OF LEGAL NARRATIVE A large number of Job scholars maintain that the author embedded some type of legal altercation that, at some point, rises to the level of a full trial or appeal of a divine summary judgment, wherein evidence must be proffered.47 If this should be correct, the book would be similarly situated to other ancient and/or modern literature, plays, television shows, and films that embed a trial as part 47

Among forensic commentators, the favoured view is that the book of Job embeds a trial rather than an appeal, trial de novo, or collateral attack. See e.g. Chin (1994), 95; Gemser (1955), 135; Greenstein (1996), 241–2, and Patrick (1977), 65, 67.

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of the storyline.48 Why does this literary phenomenon occur as often as it does? I maintain that the very structure of trials and trial narrative invites authors to use them to further their literary ends. First, the events behind actual trials are often quite interesting and filled with pathos. Emotions run high; the conflict is often extreme; the suffering is real; and the consequences are substantial. Trials are the stuff of great drama. Second, the centrality of stories to litigation makes it a compelling medium for literary narrative. Where authors use the stories of a trial to assist them in telling a larger narrative, they harness the legal storytelling conventions in furtherance of their literary goals. Characters involved with a legal altercation will tell legal stories that further the plot, assist in character development, enlarge the theme, and may even contain the moral of the story. The author can harness the multiple, conflicting, and persuasive narratives to unpack and/or enrich the main story. The different threads can also assist in building suspense. The fractures may additionally enhance narrative tension and suspense. The use of legal procedure can also create various pathways and obstacles to narrative resolution that are helpful to authors in the timing of conflict and resolution. As a result, authors can employ a trial setting quite successfully to drive or manipulate a narrative. To be literarily effective, however, the trial must make sense in the social world of the text. If the characters and settings do not seem real, that is, to exist off the page in the mind of the reader, they will fail to live on the page.49 Moreover, the reader will often depend on the social world of the text having sufficient connections with the one behind the text for the text’s world to live offstage. Literary trials, therefore, typically have sufficient connections with real trials to be believable. As a result, part of the author’s narrative will consist of a conflict involving the characters that is of such a nature that the community (of the story world) will become involved in the conflict through the legal system that it has established; said in another way, 48 This phenomenon is quite ancient. See e.g. the lawsuit represented on Achilles’ shield in the Iliad. For further, see Westbrook (1991). 49 According to Miles (1995), 10: ‘[T]he biographical effect––the artistic suggestion of a life––is inseparable from the dramatic or literary effect itself. Unless the viewer of Hamlet can believe that Hamlet was born and will die, unless the viewer’s imagination is carried offstage into the life for which there is no direct evidence onstage, the play dies with its protagonist. A character understood to have no life offstage can have no life onstage.’ I maintain that this is equally true of the setting or world of a literary text.

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the matter involves an alleged breach of a legal substantive duty owed or right held, such as in the case of blackmail or murder. In this respect, then, each of the primary characters involved in the legal altercation of the text will have a different understanding arising out of their different points of view regarding the events in dispute. During the literary trial, they will tell these different stories, seeking to persuade the literary trier of fact (and the reader or viewer), using allowable legal procedural and evidentiary rules to the fullest extent possible. Earl Stanley Gardner, an attorney and the author of the many Perry Mason mysteries, was highly regarded for his accurate depiction of both forensic science and legal procedure in his works. The comedic film, My Cousin Vinny, on the other hand, plays with legal procedure in that the protagonist Vinny Gambini, a new attorney from Brooklyn, New York who knows very little law, must attempt to gain mastery of legal procedure in Alabama in order to win an acquittal for his cousin and his cousin’s friend who have been mistakenly accused of murder. Vinny’s ongoing struggle with the ins-and-outs of legal procedure is part of the plot, his character development, and the character development of his fiancée. As Vinny learns trial procedure, he is able to solve the mystery of the story. Moreover, the many divisive ethnic, geo-cultural, religious, gender, and class issues of the story’s characters are overcome. Finally, the embedded trial narratives of the work will be fractured because they will be told over time, through a variety of witnesses (among whom may be the parties) and other forms of evidence. In literary trials, no end of plot twists may arise before all is resolved and made apparent at the end. Thus, even more fracturing may be found than commonly occurs in real trials. For example, in the highly popular and long-running American television series Law and Order and its two spin-offs, the highly fractured nature of the narrative is highlighted by a particular sound. Each piece of the developing evidence is obtained in a specific scene involving the investigators, prosecutors, or trial itself; and each scene is set off by the now famous ‘chin-chink’ sound to mark the scene changes and narrative fractures. The repetition, and growing familiarity, of the sound is the unifying principle that allows the viewer to move beyond the fractured narrative to bring it into a comprehensible whole. The trier of fact will hear two different, conflicting, persuasive, fractured narratives that are regulated by the legal procedure of the

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story world. Often in literature, film, or television, the case is solved before it gets to the jury. At times, however, the case does go to the jury, who must then decide which story or which parts of the two stories it believes, thereby creating an overarching narrative in the process that will become the basis for its verdict. In sum, literary trials and those in other media will also demonstrate the five features of trial narratives. We would, therefore, expect similar literary techniques from the author of Job, if he should have embedded a trial in his text. Let us imagine for a moment that Job’s author was writing a type of modern dramatic novella that embedded a trial in a human court set in the royal courts of Babylon in the time of Nabonidus (as we actually have in Nbn 720 and RA 67 148–9 [Arnaud 67]). We would naturally expect the author to construct a trial scene that was highly reminiscent of this court for his audience. We might suppose that he would give his readers a description of Babylon, the building where court was held (bı¯t dı¯ni), the royal judges, and so forth, to set the scene.50 We might expect the plot to involve a matter that is of a serious legal nature. We might also expect to read witness testimony, involving the main characters and others, that develops the legal matter, as well as the plot, characters, themes, and so on, all done in a manner consistent with the procedures of the legal system within the story world–– the neo-Babylonian courts. Finally, we might anticipate a resolution of the trial in a way that either develops or resolves the plot in some way. If Job is on trial, then the same reader expectations should occur: the trial of Job should appear to the book’s readers something like an actual trial might appear. There is, however, one important difference here: according to many scholars, this trial is of divine origin.51 Even though the trial’s origins may lie in the Divine Council or with a member thereof, ancient readers still needed to be able to imagine this legal proceeding as real. Thus, the author of Job must have created a mythological, metaphorical world that was entirely believable to his audience. 50

Several documents record that there was a house of judgment (bı¯t dı¯ni) in Babylon, but we know little about it. See e.g. AfO 44 81 no. 9, CT 22 105, TCL 13 222, YOS 3 35, and YOS 7 31. See further CAD B 156. 51 Those arguing for the Satan as initiating the suit include among others Day (1988), 76 n. 18, 80–1 (suggesting that the Satan actually puts God on trial); Bakon (1993), 226–7; cf. Good (1990), 195, 223–34. Those arguing for God as the initiator of the suit include among others Dick (1977), 40 (but Job is the plaintiff in the collateral action); Frye (1977), 63–4; and Good (1982), 238.

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While saying this, I am cognizant that other scholars maintain that Job initiates the suit against God.52 Nevertheless, even here, the author has to have constructed a metaphorical legal world in which this is possible. Any such suit will have supernatural dimensions. In my research endeavours on the book of Job, this facet has remained in the forefront of my mind. Because the author is, according to most interpreters, attempting to critique the concept of retributive justice, as it actually functions, and, possibly, the ritual system that supports it, I maintain that he must have created some type of divine scene that makes legal sense to his ancient Israelite readers: the prologue’s two scenes in the heavenly realm must live for the reader and be a place where justice matters and trials can be held. I suggest that the easiest way to construct such a world is to base it on both common theological views and human law. I would, therefore, expect that the literary material of the book of Job would reflect in some manner common religious texts involving suffering and retributive justice, such as the ritual incantation texts that use legal language to describe the cause of human suffering, as well as the records of human litigation.53

JOB AND THE FIVE FEATURES OF TRIAL NARRATIVES I have attempted, in my prior work, to demonstrate that the book of Job does, indeed, contain a trial.54 I have argued that the Satan instigates a lawsuit in the Divine Council against Job, using a nondispositive abbreviated oath formula, on the charge of having the guilty mind of a blasphemer, which is an actionable offence in the Divine Council. Moreover, this is a politically charged situation because YHWH also stands accused, at least politically if not legally, because he did not treat Job properly. Instead of bringing a divine lawsuit against Job and executing the appropriately negative consequences, YHWH has been rewarding and protecting Job with blessings. It is these blessings, according to the Satan, that have prevented Job from following through on his guilty intention to 52 See e.g. Chin (1994), 95; Gemser (1955), 135; Greenstein (1996), 241–2; Patrick (1977), 65; Scholnick (1975), 106–8; Stier (1954), 217; and Wharton (1999), 55–6. 53 On these ritual incantations, see further Magdalene (2007a). 54 Magdalene (2007b).

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perform the guilty acts. The Satan in bringing the necessary suit may now conduct the proper investigation of Job. When the divine hedge of blessings is removed, if Job does, in fact, curse YHWH, he will be convicted on the charge. Moreover, YHWH will also be proved to have done a terribly injustice by favouring Job. The investigation ensues, and Job suffers horribly. He does not have kind things to say to YHWH, believing that he is, most unfairly, in the middle of some divine lawsuit for a crime he did not commit. He knows nothing of the Satan or the Divine Council; thus, YHWH must be responsible. Job is prepared to defend himself on the charge, but he is also ready to meet fire with fire. He threatens to bring a counterclaim against YHWH in the suit for abuse of judicial authority.55 It is based on several counts but most importantly that of instigating a false suit against Job. Job makes several settlement demands upon God and uses this legal threat and a threat of martyrdom to force the suit into settlement negotiations.56 Along the way, Job and his three friends have many things to say regarding how they will testify in the case, what the best legal strategy might be, and the relative strengths and weaknesses of the positions of the opposing side. They also all attempt to find a means to resolve the matter. All of this is typical of settlement negotiations, the narratives of which also have the key attributes of trial testimony. Unfortunately, God cannot stop or settle this case because to do so is to seem to favour Job unfairly. This would jeopardize YHWH’s position vis-à-vis the Satan. Only once Job surrenders the case can YHWH settle. Job does give up the case in his final remark, and YHWH is free to settle the case in the epilogue. Elihu has a particularly important role.57 He is not like the friends. Rather, he believes that Job has spoken derisively, GEL (blasphemed), in his speeches, whereas the friends have no idea what Job had done prior to the divine trial and his suffering to deserve this and never accuse him of blasphemy as he speaks.58 For Elihu, the threatened 55

Job’s wife plays a critical legal role in moving Job from passive acceptance of YHWH’s actions to a potential counterclaim. For more detail on this, see Magdalene (2006). 56 Magdalene (2006). 57 See further Magdalene (2004). 58 BDB (1981), 514 gives its meaning as ‘nearly = blasphemy’. Harris and Archer (1980), 480 agree that GEL belongs in the constellation of roots meaning ‘blasphemy’ and ‘slander’.

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counterclaim wherein Job charges God with unjustly exercising his judicial authority is the blasphemy. Elihu, therefore, accuses Job of such. In this, Elihu becomes a second accuser in the case. The Satan says Job will curse YHWH, and Elihu says he has in fact spoken derisively. Now, both the crime’s mens rea (guilty mind) and actus reus (guilty act) have been alleged. This requires that the community act legally against the perpetrator because blasphemy is a high-culpability crime that pollutes the entire community; if the community does not so act, it, too, will be subject to divine trial and penalty.59 Thus, Elihu brings the case also before a human assembly of the wise. He then argues as a prosecutor might that the assembly must find against Job in favour of God. As we see from the above neo-Babylonian materials, a second accuser is essential to the win. The Satan (or God) has his second accuser in Elihu.60 Job, on the other hand, has none in spite of all that he as done during his speeches to try to convince his friends to turn and side with him.61 As a result, Job must lose despite all his arguments, and he gives up the case, which allows YHWH to settle his claim. In the book of Job, we can now see the presence of all five of the special attributes of legal narrative. First, we have multiple, conflicting, and persuasive narrative strands between the characters. The Satan and YHWH oppose each other regarding: (1) Job’s character and mind set; and (2) whether YHWH has inappropriately favoured Job. The first matter involves whether or not Job possesses a blasphemous intention, which is a matter for the jurisdiction of the Divine Council. The Divine Council is also the only judicial panel that can hear the Satan’s charge against YHWH for disrupting the moral economy.62 Thus, we have actionable matters before the correct tribunal. Job (and his wife) and YHWH stand opposed concerning whether or not YHWH has treated him shabbily for taking away his blessings.63 Job charges this repeatedly, but YHWH is unable to respond directly to Job because the Satan has also accused him. YHWH’s position is set out only in the Divine Council and not to 59 Westbrook (1992), 548. Other crimes in this category are apostasy, misappropriation of taboo sacred property, sorcery, violation of the sabbath, and a number of sexual crimes (Westbrook 1992, 548–50; cf. Greenberg (1962), 734). 60 61 Magdalene (2004). Magdalene (2004). 62 Cf. Psalm 82 and Ackerman (1966). 63 On the legal position of Job’s wife, see Magdalene (2006).

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Job. Job and his friends stand opposed on whether or not Job has, in fact, done a deed worthy of divine punishment. They all believe the case is before YHWH, but they are mistaken. Job believes additionally that YHWH is not the appropriate tribunal because Job is also prepared to accuse him. He seeks another to adjudicate the case but cannot imagine that the Divine Council might be available; neither can Eliphaz or Elihu. Elihu stands opposed to Job regarding whether Job actually committed blasphemy. Elihu brings the case before a human tribunal, the assembly of the wise. They are also empowered to decide whether or not Job has committed blasphemy. Thus, the first three characteristics of legal narrative exist in this case. I maintain that the narrative of Job is highly fractured in the manner of ancient litigation texts. We have examined several neoBabylonian litigation texts in order to understand just how brief, riddled with narrative fissures, lacunae-filled, and enigmatic they can be. Narrative lines may be interrupted by judicial questioning, requests for additional evidence, and/or judicial delays. Parties may speak once and entirely, or speak several times in a fractured manner. Additionally, some speakers may come and go from the text, including first and second accusers, as well as key witnesses. Such individuals’ speeches may also only be represented indirectly by the scribal narrator. Witnesses may or may not address each other or their testimony directly. We also see these phenomena in the book of Job. In fact, several aspects of the Joban narrative that have attracted the attention of diachronic critics might also be explained by the formal characteristics of trial narrative and the verdict document as a whole. Job is also riddled with narrative seams, gap-filled, and cryptic in places. All the characters but Job’s wife and Elihu have a fragmented narrative line. The various parties and witnesses to the matters in dispute interrupt each other in the two heavenly scenes and the dialogues; Elihu, however, like some legal witnesses, speaks only once and completely. Much has been made in source-critical analyses of the early disappearance of the Satan from the text, as well as the late arrival of Elihu and his immediate departure. Yet, as the first and second accuser, respectively, their movements are wholly consistent with ancient trial narratives, such as RA 67 148–9 (Arnaud 67). The failure of God to address Job has also been a problem for diachronic critics. Job and his friends certainly have this wonderful verbal repartee that we readers might enjoy seeing continued throughout the book. That would not, however, be consistent with

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the historical trial records that we see. Furthermore, God must speak because he stands accused by the Satan and is about to be accused formally by Job. It is, however, quite impossible for God to address Job’s allegation of a false suit because he believes, with Job, that the suit is false. To admit that is to lose to the Satan. No, YHWH must let Job be investigated fully without YHWH’s interference. While a more close and careful study of these issues must await a longer investigation, I believe that the form and narrative structure of the neo-Babylonian trial documents offer a clear challenge to the current literary suppositions of source- and form-criticism in respect to narrative coherence. The coherence of trial narratives, verdict records, or ‘transcripts’ is based on a different set of rules than that of regular literary texts. In seeking to imitate trial narratives in this text, Job’s author harnessed these different legal narrative conventions to give the book a sense that it embeds a trial, but, still more, to give the book a sense that it actually is a trial ‘transcript’ of sorts. This proposal brings me back to Elihu’s assembly of the wise. Just who is in this assembly? Elihu? Surely! Job’s friends? Probably, although Elihu might want to do without them. I argue that it is we readers who comprise the bulk of the assembly. Elihu does not argue only that Job is a blasphemer, which would be true if this were only a criminal trial against Job before an assembly of freemen in the text. Rather, Elihu sees the case as one of God v. Job, and argues for a finding for God as against Job. This is not a matter just for Elihu and Job’s friends to decide. This is a matter for all the readers of the book of Job. We, then, are Job’s judges of last resort. Thus, I maintain that it is Elihu who finally fulfils Job’s request for a different judicial panel. Through Elihu’s trial proceedings, we are invited to decide the matter and approve or disapprove the proceedings and settlement. In this manner, we may decide who is right and what is fair. Some of us have even stood or do stand as Job’s second accuser, his redeemer, for whom he longed in Job 19: 25.64 If this should be correct, then the book of Job itself might well read like a trial or appeal record so that we, as judges, have all the facts before us. I suggest that the fracturing of the book does just that: it gives us a sense that this book is a trial record upon which we must decide. Upon it, we must judge whether or not YHWH treated Job justly. We readers have thus been invited into the theological project of the book of Job. 64

Cf. Magdalene (2004).

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Finally, I argue that the book of Job successfully uses metaphors based on trial procedure. In the book, we can observe accusative statements, an investigation, defensive statements and oaths, witness testimony, settlement demands and negotiations, and the settlement itself. We can additionally note the excellent use of the requirement of a second accuser, which was so critical in the trial procedure of the neo-Babylonian and Persian periods. If a second accuser should not be needed, then we would expect Job’s oath of innocence to be a dispositive oath, resolving the matter finally. In this instance, both Elihu’s speech and God’s speeches would be irrelevant. This particular aspect of the book’s legal procedural metaphors additionally explains why Job gives up the case, when he seems to have made such a strong argument: he never found his second accuser. As a result, I maintain that the coherence of the book of Job is based in law not in literature.

CONCLUSION The book of Job mimics all five special features of trial narrative, and the normal rules of literary coherence cannot apply alone in reading the book. We must take both the book’s legal materials and the coherence rules of trial narratives seriously in determining the question of its compositional history. When we do that, we can observe that the book itself not only embeds a trial, but also is a trial. If we then read the book of Job in the same way that one reads an ancient final or conditional verdict record, a number of the seemingly problematic narrative seams and fractures will no longer appear to be problematic. In taking this approach, it also becomes clear that Elihu cannot be removed (especially without the divine speeches) from the text. He reflects a critical component of the legal procedural metaphors that control this trial’s narratives; he brings legal coherence to the book’s narrative as a whole; he gives Job his court of last resort; and he makes possible the reader’s complete engagement in the theological project of the book. In closing, I would state that I have sought at a minimum, in this brief work, to demonstrate that the legal coherence of Job deserves much more careful study than it has received to date. My hope is that this chapter will promote such study.

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Whybray, R. N. (1998), Job (Readings: A New Biblical Commentary; Sheffield: Sheffield Academic). Wilson, L. S. (2006), The Book of Job: Judaism in the 2nd Century bce: An Intertextual Approach (Studies in Judaism; Lanham, Md.: University Press of America). Witte, M. (1994), Vom Leiden zur Lehre: Der dritte Redegang (Hiob 21–27) und die Redaktionsgeschichte des Hiobbuches (BZAW 230; Berlin: de Gruyter). Wunsch, C. (1997–1998), ‘Und die Richter Berieten . . . : Streitfälle in Babylon aus der Zeit Neriglissars und Nabonids’, AfO 44–5, 59–100. —— (2000a), Das Egibi-Archive, i. Die Felder und Gärten (2 vols.; CM 20A–B; Groningen: Styx). —— (2000b), ‘Die Richter des Nabonid’, in J. Marzahn and H. Neumann (eds.), Assyriologica et Semitica: Festschrift für Joachim Oelsner anläßlich seines 65. Geburtstages am 18. Februar 1997 (AOAT 252; Münster: Ugarit), 557–98. Zuckerman, B. (1991), Job the Silent: A Study in Historical Counterpoint (New York: Oxford University Press).

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13 ‘For the judgment is God’s’ (Deut. 1: 17): Biblical and Communal Law in the Dead Sea Scrolls Aharon Shemesh

In contemporary legal discourse, ‘the law’ is divided into various fields such as civil, criminal, and private law. Scholars of ancient societies, following their sensibilities, tend to differentiate between ‘religious law’ of cults, temples, and priests and ‘civil law’ of laypeople and mundane matters. Projecting modern perceptions and terminologies onto ancient civilizations is at times very useful for our understanding of these societies, but at times also misleading. One such case is the focal point of this chapter. Scholars of the Dead Sea Scrolls frequently compare and contrast ‘sectarian law’ (or ‘communal legislation’) as opposed to ‘biblical law’. I will argue that this differentiation, while true from a literary point of view, was not upheld by Qumran sectarians with regard to the origins and authority of the law. There was, I argue, no distinction between these areas of law at Qumran; the sectarians believed that all aspects of the law are from God and have the same binding authority. The Damascus Document is the composition in which the distinction between religious and communal law is most visible. The Document was first discovered in two medieval copies in the Cairo Genizah in the late nineteenth century, and was later supplemented by fragments from eight copies from Qumran cave 4. It is composed of two main parts: the first third of the composition is an introductory admonition; the rest is a compendimum of laws. Charlotte Hempel, in The Laws of the Damascus Document, convincingly demonstrates that the legal part is a composite text containing two

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types of material: in her parlance, ‘halakhah’, and ‘communal law’. These two bodies of material differ from each other in various aspects. Halakhah is characterized by formal patterns not found in ‘communal law’. Halakhah units are often introduced by a heading of the type ‘LE X’ (concerning X) and refer relatively often to Scripture, explicitly or implicitly. Above all, halakhah lacks references to the organization of a particular community, and this material’s basic frame of reference is society at large, while communal law contains regulations that seem to prescribe the life of a particular organized community. It uses vocabulary referring to a community such as, ‘the camp’ (HNXM), ‘the congregation’ (HDE), and ‘the overseer’ (RQBM). To this one may add the use of the word ‘rule’ (VRS) to introduce new sections of communal law.1 But does this obvious literary distinction between halakhah and communal law testify that the author/redactor differentiates between the origin and authority of these two areas of law? I will explore this question from two aspects: the origin of the law and punishments for transgressors of the law.

THE ORIGIN OF THE LAW Numerous halakhic details regarding a wide range of issues were points of contention between the Qumranites and their rivals, both Pharisees and Sadducee priests from Jerusalem. How did the Qumranites defend their views? How did they understand their authority? The Damascus Document justifies its interpretation of biblical law by the belief that God gave Israel both revealed and hidden commandments: the former are those explicitly mentioned in Scripture, and the latter are those divulged to the members of the sect alone, unknown to the rest of the people.2 Only those who meticulously observe the commandments of the revealed Torah are worthy of knowing the hidden commandments. This concept is also reflected in the sect’s understanding of the history of the people of Israel. Charlotte Hempel was not the first to distinguish between biblical and communal laws in the Damascus Document. See her own survey, Hempel (1998), 8–14. 2 See Wieder (1962), 53–7, and Schiffman (1975), 22–32. 1

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According to the sect’s historical narrative, the Israelites, during the First Temple period, brazenly transgressed the revealed commandments, and were punished by exile and the destruction of the land of Israel. Only the group that remained loyal to the law was chosen by God for a covenantal relationship. God revealed the hitherto hidden commandments to it alone, in the context of the covenant.3 Deut. 29: 28, ‘The hidden matters (TWRTSNH) belong to the Lord our God, and the revealed matters (TWLGNH) belong to us and our children forever, so as to do all the words of this Torah,’ is clearly the basis of the sectarian distinction between TWLGN (revealed laws) and TWRTSN (hidden laws). This verse stands at the heart of Moses’ exhortation in Deuteronomy 29–30, in which Moses elaborates the historical process that will be set in motion when the Israelites sin in the future. Individuals among them will ‘bless themselves in their hearts, saying: I will have shalom, though in the stubbornness of my heart I will walk’ (v. 18). God in turn will exile them from their land: ‘in anger, wrath, and great fury’ (v. 27), and the land will be desolate (v. 22). Deuteronomy 29 concludes with our verse, while chapter 30 proceeds to narrate Israel’s future, prophesying the ingathering of the exiles (v. 3). Following the description of the future redemption, Scripture predicts Israel’s true return to God, its true commitment to his commandments and his laws, which are ‘not too extraordinary for you’, or ‘too far away’ (30: 10–11). A similar exposition, of a historical process involving sin, destruction, return to God, and redemption, is found in three places in the Damascus Document (1: 3–11; 3: 9–20; and 5: 20–6: 11). The circumstances of return and redemption are related to the sect alone, and not to Israel as a whole.4 It is in this context that the sect’s selfperception as shavei Israel should be understood.5 The designation shavei Israel means both ‘penitents of Israel’, their spiritual state, and ‘returnees of Israel’, referring to the group’s history. These two meanings are interrelated. Israel’s misconduct corrupted halakhic traditions, and it is the sect’s task to return to the Torah of Moses, the true meaning of which is now revealed to them. Both the Damascus Document and the Rule of the Community indicate this historical philosophy by the law stating that those who 3

CD 3: 10–16. For a detailed discussion of the concept niglot and nistarot (reviled and hidden) in the Dead Sea Scrolls and Rabbinic literature, see Shemesh and Werman (1998). 5 CD 4: 2 and 6: 4. 4

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join the community should swear ‘to return to the Torah of Moses, with all his heart [and with all] his soul, according to everything which has been revealed from it to the Sons of Zadok, the priests who keep the covenant and seek his will, and according to the multitude of the men of their covenant’6 (1QS 5: 7–10, cf. CD 15: 7–10). The novice must commit himself to adequately follow the law according to the sect’s interpretation. The author of the Damascus Document grants ‘all who were brought into the covenant’ God’s promise ‘to bring life for a thousand generation(s)’. In the meantime the text lists the most important legal issues that in the author’s eyes are the manifestation of the oath ‘to return to the Torah of Moses’. And all who were brought into the covenant (are) not to enter the sanctuary to light His altar in vain . . . and to separate (themselves) from the sons of the pit and to refrain from the wicked wealth . . . and to distinguish between the impure and the pure and to make known (the difference) between the holy and the profane, and to observe the Sabbath day in its exact detail, and the appointed times and the day of fast as ordered by those who entered into the new covenant in the land of Damascus, to offer the holy things according with their detailed requirements, to love each man his brother as himself, and to support the poor and destitute, and proselyte, and to seek each man the peace of his brother. And let no man trespass with regard to his near kin; (rather, let him) stay away from unchastity in accordance with the precept. Let each man rebuke his brother in accordance with the ordinance and not keep grudge from one day to the next. And let him separate himself from all impurities according to their precept, and let no man defile his holy spirit, as God distinguished for them. All those who walk in these in perfect holiness (and) governed according to all (these things), God’s covenant is an assurance to them to bring life for a thousand generation(s). (CD 6: 11–7: 6)7

The list includes some famous halakhic polemics between Qumranites and their opponents, such as purity, the Sabbath, and the calendar, all of which belong to what Hempel terms halakhah.

6 4QSb, d have a shorter version here. For the significance of these variants see A. I. Baumgarten (1997). 7 Translation is taken from Charlesworth (1995), II, 23–25, slightly emended according to Qimron (2010), 13–14.

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However, the list also includes subjects with a clear sectarian flavour such as the obligation ‘to separate from the sons of the pit’ and for men to rebuke ‘his brother in accordance with the ordinance’. The first regulates the relations between the members of the community and the rest of the nation, between insiders and outsiders, and the second regulates the relationships between members of the community internally. The law of HXKWT (rebuke) is a good example of the difficulty of separating non-biblical from biblical with regard to the law in the Dead Sea Scrolls. In Leviticus 19: 16–18 the obligation to rebuke others for their misdeeds is contained in a series of commandments: You shall not do unrighteousness in judgment: do not favor the poor or show deference to the rich; judge your kinsman fairly. Do not go about as talebearer among your countrymen. Do not stand upon the blood of your fellow: I am the Lord. You shall not hate your kinsfolk in your heart. Reprove your kinsman but incur no guilt because of him. You shall not take vengeance or bear a grudge against your countrymen. Love your fellow as yourself: I am the Lord.

Contrary to common understandings of this injunction as a moral obligation,8 attested in Wisdom literature (e.g. Prov. 9: 8), early Christian writings, and rabbinic literature, the Damascus Document and the Rule of the Community read it as part of the judicial procedure, probably based on the context of the above passage, in which some injunctions are clearly concerned with judgment. CD 9: 16–20 has a detailed law of reproof: ‘Every case of a person transgressing the law and his neighbor witnesses it as a single witness, if it is a capital case, he shall report it in his presence and with reproving to the overseer. And the overseer shall record it in case he reoffends in front of a single witness and the latter again informs the overseer. If he offends a third time and is caught in front of another (witness) his case shall be complete.’9 According to the Damascus Document, ‘rebuke’ means giving testimony against another: the obligation to reprove ‘one’s brother’ is in practice an obligation to report his

8 For a detailed analysis of the law of rebuke in ancient Jewish literature, see Kugel (1990), 164–214. 9 Reproving is mentioned a second time in CD 9: 2–8. On the relationship of these two passages in CD, see Hempel (1998), 99–100.

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misdeeds to the community’s authorities.10 Encouraging the members of a community to report the deviations of others from the expected norm of behaviour is a common characteristic of small, closed societies that practise a very demanding way of life. The ‘rebuke’ procedure obviously served the needs of the Damascus Document’s community and its leadership quite well. This was a powerful means of control that imposed required norms upon members of the sect. Consciously or unconsciously, the nature of the society in which the Damascus Document was conceived and binding was the prime factor for the creation of its unique law of rebuke. In that sense this is indeed a ‘communal law’. In the eyes of the framers of the Damascus Document, however, the law of rebuke is nothing other than the only true explanation of the Levitical injunction ‘Reprove your kinsman but incur no guilt because of him.’ The case of the injunction to ‘to separate (themselves) from the sons the of pit’ included in the list of CD 6: 11–7: 6 quoted above is even more interesting. A detailed account of this injunction is found in the Rule of the Community in the context of the oath taken by the new member upon joining the community. Sarianna Metso discovered that this passage is rendered differently in 1QS and the cave 4 fragments of the Rule of the Community (4QSb and 4QSd).11 Though paleographically dated later than 1QS, 4QS preserves an earlier and shorter version of the passage:12 1QS contains a series of citations and paraphrases of biblical verses, the most important of them being Exod. 23: 7 ‘You shall keep away from everything false,’ which is introduced with the formula ‘for thus it is written’ (QXRT RQ$ RBD LWKM BWTK IK AYK). The verse was added here in order to link the existing communal practice with the Torah. The verse is now the origin of and the reason for the obligation ‘to separate from the sons of the pit’. We can therefore conclude that historically many of the communal regulations were not the results of close readings and interpretations of Scripture as much as they were the results of the exigencies of the communal life. Indeed, Moshe Weinfeld, in The Organizational Pattern and the Penal Code of the Qumran Sect, demonstrated that these regulations were often 10 On the dual functions of reproof in CD and its relation to rabbinic halakhah, see Shemesh (1997). 11 Metso (2006). 12 On the relation between 1QS and 4QS see Metso (1997).

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borrowed from neighbouring societies.13 Sectarian writers later found it necessary to ground these regulations in Scripture.14 Metso makes another correct point: ‘the fact that we find a community tradition originally based on practical necessity now presented as derived from Scripture suggests that the community treated the laws of the Torah and community regulations as equally authoritative.’15 Yet even the short, early version of 4QS is not completely detached from Scripture. Here is the text: And all who enter into the Council of the Community will take upon his soul by oath [to return t]o the [T]orah of Mose[s] with all (the) heart and with all (the) soul, (to) everything revealed from [the Torah] to the [multitude of] the Council of the men [of] the Community [and to separate from all the men of]deceit. They will not approach the purity of the men of [holine]ss. One will not eat with him DXYB16 No man of the men of the Community shall respond to their utterance with respect to any law or judgment. And no one shall be united with him in wealth and work. And no man of the men of holiness shall eat of their property neither shall he receive anything from their hands. And they shall not lean upon any works of worthless, for worthless are all who do not know [his covenant. But all who spur]n his word he will destroy from the world, and their works are impure b[fore him and al]l their property is unclean].17

Comparison of this text to the following passage from Jubilees (22: 16–22) is illuminating. This is Abraham’s testament to his grandson Jacob from his deathbed: 16. And you also, my son Jacob, remember my words, and keep the commandments of Abraham, your father. Separate yourself from the gentiles, and do not eat with them, and do not perform deeds like 13

Weinfeld (1986). The Qumranite tendency to link their practical tradition to Scripture is itself the inescapable consequence of the Sadducees’ theological stand to reject any regulations that are not written in the Bible, and to say ‘that we are to esteem those observances to be obligatory which are in the written word, but are not to observe what are derived from the tradition of our forefathers’ (Flavius Josephus, Jewish Antiquities 13. 297–8). 15 Metso (2006), 298. 16 For the meaning of the word DXYB in this context, see the ensuing discussion. 17 Charlesworth (1995), i. 63. ll. 6–13. 14

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Aharon Shemesh theirs. And do not become associates of theirs. Because their deeds are defiled, and their ways are contaminated, and despicable, and abominable. They slaughter their sacrifices to the dead, and to the demons they bow down. And they eat in tombs. And all their deeds are worthless and vain [ . . . ] But (as for) you, my son, Jacob, may God Most High help you, and the God of heaven bless you. And may he turn you away from their defilement, and from their errors. Be careful, my son, Jacob, that you not take a wife from the seed of the daughters of Canaan, because all of his seed is (destined) for uprooting from the earth. 21. [ . . . ] and all of his seed will be blotted out from the earth, and all his remnant, and there is none of his who will be saved [ . . . ] And for all of those who worship idols and for the hated ones, there is no hope in the land of the living; because they will go down in Sheol. And in the place of judgment they will walk, and they will have no memory upon the earth. Just as the sons of Sodom were taken from the earth, so (too) all of those who worship idols shall be taken away.

There is a remarkable similarity between this passage from Jubilees and the one quoted above from the Rule of the Community in both their rhetoric and the content of the injunctions listed in them. We should first consider the list of phrases Abraham uses to condemn the gentile’s deeds. Their actions are ‘defiled’, ‘despicable’, and ‘abominable’, exactly the same terms the Rule uses to depict his opponents. The community’s members are warned not to ‘lean on any worthless works (LBH Y$EM), for worthless (LBH) are all who do not know His covenant’. The two sources also describe the fate of the enemy similarly. The author of the Rule of the Community promises that ‘all those who spurn His word He will destroy from the world’, while Jubilees agrees: ‘And for all of those who worship idols and for the hated ones, there is no hope in the land of the living; because they will go down in Sheol.’ As for the content of the injunctions themselves: Abraham instructs Jacob to separate himself from the gentiles, not to eat with them, not to behave like them, and not to associate with them. In both content and order, these prohibitions are almost identical to those of the Rule of the Community. Just as in Jubilees, the injunction to ‘separate from all the men of deceit’ is immediately followed by the prohibition: ‘One will not eat with him DXYB.’ The word DXYB in this sentence is not, in my opinion, a reference to the sect (as

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translated in Charlesworth (ed.), The Dead Sea Scrolls: ‘within the community’) but means ‘together’ as in the next sentence ‘No one may be united (DXY) with him in his work or his wealth.’ In the Cave 1 version, this interdiction is followed by the admonition ‘lest he burden him with guilty iniquity’, which shows that the focus is not on economic cooperation as such but on the fear that such a partnership may lead the member of the sect to be influenced by an outsider and subsequently fall into error. This is enhanced by the parallel exhortation in Jubilees: ‘Do not become associates of theirs.’ It is most likely that the passage from the Book of Jubilees was the source for this law in the Rule of the Community. The author of the Rule adjusts the original material he drew from Jubilees to his sectarian worldview: what Jubilees prohibits as a separation from gentiles, ‘do not eat with them, and do not perform deeds like theirs’, the Rule prohibits as a separation from non-members of the sect: ‘No one must either eat or drink anything of their property’ and ‘No one may be united with him in his duty or his property.’ This is indicative of the sectarian belief that only members of the Yahad are true Israelites; everyone else should be considered gentile. The importance of Jubilees for the Yahad and its high status in the community’s library was recognized by scholars long ago.18 This is evident from the large number of copies of this book found at Qumran–– more than ten. Jubilees might explicitly be mentioned in the Damascus Document (CD 16: 1–4): ‘Therefore a man shall bind himself by oath to return to the Law of Moses, for in it everything is specified. And the explication of their times when Israel turns a blind eye, behold it is specified in the Book of the Divisions of the Times into their Jubilees and Weeks.’ ‘The Book’ mentioned in CD might be Jubilees, described as the authoritative source for the true meaning of the Torah of Moses and its details.19 As I have demonstrated elsewhere, one of the aspects of Jubilees’ authoritative status at Qumran was its perception as a source for halakhah. The laws of separation are just one example of this.20 18

For a comprehensive survey of the scholarly debate with regard to Jubilees’ origins and dating, see VanderKam (1997). Some scholars date Jubilees later and some even believe it is a sectarian composition authored within the yahad. See Kister (1987), 8–18; Werman (1995), 30–5. 19 Against this reading of CD see Dimant (2006). For a survey and bibliography of earlier scholarly publications concerned with this issue see Dimant (2006) 242–3 and nn. 49–51. 20 Shemesh (2008b).

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Thus we may conclude that even in the early version of the Rule, represented by the Cave 4 manuscripts, before the redactors of 1QS deemed it necessary to link the law of separatism to a specific verse in the Torah, its details were nevertheless based on ‘Scripture’ (i.e. Jubilees) and were doubtless considered to be the appropriate way to fulfil God’s will.

PUNISHMENTS The Rule contains two textual units dealing with the punishments to be meted out to delinquent members of the community. One is phrased in only general terms; the other is a detailed penal code. The relations between these two units led some to the conclusion that the Yahad treated those who transgressed the internal rules of the community very differently from members who broke the laws of the Torah. If this is correct, we should admit that the Rule differentiates between the status of biblical and communal rules with regard to their punishment. In 1QS 8: 16–9: 2, we read: (A) And anyone of the men of the Community, the covenant of the Community, who defiantly shuns anything at all commanded (HWCMH LKM) cannot approach the pure food of the men of holiness, and cannot know anything of their counsels until his deeds have been cleansed from every depravity, walking in perfect behavior. Then they can include him in the council under the authority of the Many and later they will enroll him according to his rank. And (they shall apply) this regulation to all who enter the Community. (B) These are the regulations by which the men of perfect holiness shall conduct themselves, one with another, all who enter the Council of holiness of those walking in perfect behavior as he commanded. (B1) Any one of them who breaks a word of the Torah of Moses (H$WM TRWT) defiantly or through carelessness will be banished from the Community and shall not return again; none of the men of holiness should associate with his goods or his advice on any matter. (B2) However, if he acted unwittingly he should be excluded from pure food and from the Council and they shall apply the (following) regulation to him: ‘He may not judge anyone and [he may] not [be a]sked any advice for two whole years.’ If his conduct is perfect in

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the session21 in the investigation, and in the Council [ac]cor[ding to] the Many, if he has not sinned again unwittingly until two full years have passed. Because for { . . . } one unintentional sin he will be punished two years; but whoever acts defiantly shall not return again. Only someone who sins unwittingly shall be tested for two full years with respect to the perfectness of his behavior and of his counsel according to the authority of the Many, and shall then be enrolled according to his rank in the Community of holiness.

The apparent contradiction between section A and section B of this passage troubled scholars. Section A states that even an intentional sinner who ‘defiantly shuns’ the law, may restore his original rank in the community after a period of exclusion from the purity of the Many. Section B grants this option only to those who sin unwittingly (B2): those who break the law defiantly (B1) should ‘be banished from the Community and shall not return again’. Jacob Licht suggested, based on the different descriptions of the law in the two sections, that section A is concerned with communal rules, ‘any of the commandments (HWCMH LWKM)’, while section B refers to breaching ‘a word of the Torah of Moses (H$WM TRWT)’.22 Transgressing communal rules is a less severe act; it is therefore treated more leniently than breaching the words of the Torah. The transgressor of the communal rule is excluded only temporarily from the purity of the community and may return when he repents of his sins, while a man who brazenly breaks the law of the Torah is permanently expelled from the community. Licht further noticed 21 Heb.: B$WMB. Kister (1988), 324–5, demonstrated that the original reading was ‘HCEBW $RDMB B$W OB WKRD OTT OA’ so that the word B$WMB resulted from the conflation of the words OB and B$W. The sentence ‘If his conduct is perfect in them’ (OB WKRD OTT OA), is an alternative version of the words ‘if he has not sinned again unwittingly’ etc., indicating it is a gloss interpolated in the main text. 22 Licht (1965), 153, 183–4. Other scholars offer different solutions. Forkman (1972), 59, suggests that the two sections represent two different groups with different legal systems, one belonging to the Community and the other to a group defining itself as ‘people of perfect holiness’ ($DWQH OYMT Y$NA). Another group of scholars (Murphy-O’Connor (1972); Pouilly (1975), 526–32; Metso (1997), 72) views the two passages as representing two different stages in the evolution of the sectarian law: the first, and earlier stage, and the second, which is stricter, a later one. Schiffman (1983), 167, basically follows Licht while defining the shunning of ‘anything at all commanded’ in section A as a violation of commandments rooted in the sectarian interpretation of the Bible (the ‘hidden’ things), and ‘the Torah of Moses’ in section B as the ‘revealed’ plain meaning of Scripture. See also Anderson (1994), 14–15.

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that the period of exclusion in section A is not specified. It extends ‘until his deeds have been cleansed from every depravity, walking in perfect behavior’. Licht explains that this passage is only a general rule which actually refers to the detailed penal code earlier in the Rule (1QS 6: 24–7: 25). This penal code, which has an almost identical parallel in the Damascus Document, lists some thirty offences and their punishments. Two kinds of punishment are employed in these codes: the more common punishment is temporary exclusion for varying periods of time, evidently in consonance with the severity of the crime. Expulsion from the community is applied only to the most serious offences. The lists essentially agree regarding this basic division, and the same offences in both lists require exclusion and expulsion respectively.23 With few exceptions, the codes present the same collection of offences in the same order and all the offences listed in the penal code are concerned with communal life and regulations.24 Nonetheless, I maintain that Licht’s distinction between ‘the Torah of Moses’ and ‘the commandments’ is false, for two reasons. First, The term ‘the Torah of Moses’ in the scrolls is not restricted to instructions explicit in Scripture, and second, the penal code itself is deeply rooted in the biblical text.

The Torah of Moses The Damascus Document follows its penal code with a description of a ceremony in which guilty members are punished, which also marks the ending of the document. And these are the l]aws by which all who are disciplined (OYRSYTMH)25 [shall be ruled.] Any ma[n] who[erred in a word] shall come and make it 23 In my opinion, this proves that exclusion and expulsion are two distinct penalties and not different degrees of the same penalty. In this I differ from other Qumran scholars who have described the sectarian penal code. See e.g. Weinfeld (1986), 41–2. 24 See J. M. Baumgarten (1992). 25 For the use of the root y.s.r in the scrolls, see Schiffman (1975), 49–54. ‘The noun yissurim signifies the teachings of the sect’ (49). In our text OYRSYYTM is an epithet refers to the members of the sect who accept upon themselves the yoke of yissurim––the teachings of the sect (which are also referred to in our text bellow as QDCH YRWSY).

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known to the priest appoin[ted over the Many and acc]ept his judgement [wil]lingly, in accordance with what [He sa]id through Moses concerning the soul that sins unwittingly, that he shall bring his sin offering and his guilt-offering ( . . . ) And whoever rejects these laws, which are in accord with the statutes found in the Torah of Moses (H$WM TRWT), shall not be reckoned among the sons of His truth, for his soul has despised the chastisements of righteousness (QDCH YRWSY). And being in rebellion let him be expelled from the presence of the Many.26

A close reading of the second paragraph clearly shows that the author refers to the regulations listed in the penal code (‘these laws’),27 as being in ‘accord with the statutes found in the Torah of Moses’. These are the same laws referred to later in the same sentence as ‘the chastisements of righteousness (QDCH YRWSY)’ a term used to designate the teachings of the sect.28 Thus, at least in the eyes of the redactor of the Damascus Document who joined the penal code and the expulsion ceremony, the status and importance of biblical and communal laws was not different. The community’s rules were considered to be ‘according the statutes found in the Torah of Moses’.

The Biblical Background of the Penal Code Some thirty sins and their punishments make up the penal code of the Damascus Document, all of which are related to the life of the community. Some are concerned with the hierarchical order of the community: a member who ‘speaks with brusqueness defying the authority of his fellow who is enrolled ahead of him, he has taken the law into his own hands; he will be punished for a year (1QS 6: 26–7)’. Inappropriate behaviour during the session of the ‘Many’ is also a sin; speaking without permission, falling asleep, and leaving the session are all punishable by ten days’ exclusion. Unsurprisingly, the penal code is cites as a classic example of sectarian legislation,29 but while the penal code was doubtlessly created to serve the needs of

26 A composite text of 4QDa+e (DJD xviii. 77, 164) according to Qimron (2010), 56–7. 27 Contra Hempel (1998), 180. 28 29 See n. 25. Schiffman (1983), 155–90; Hempel (1998), 141–8.

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the community, some of the sins have definite biblical origins. For example, the obligation to reprove a peer or the prohibition against bearing a grudge or taking revenge are the sectarian implementation of the laws in Lev. 19: 17–18. Although, in truth, most of details included in the list are indeed innovations of the Yahad legislators, I nonetheless argue that a thorough study of the penal code reveals that this list of offences is grounded in three biblical pericopes, all related to the sanctity of the Israelites.30 The first is Lev. 19: 11–18. Baruch Schwartz has shown that these verses constitute an independent unit of interpersonal commandments within chapter 19.31 Like the other pericopes in this chapter, it comes under the general rubric of ‘Speak to the entire community of the Children of Israel (LAR$Y YNB TDE), and say to them: Holy are you to be, for holy am I, YHWH your God’ (19: 1). This verse contains the key to the choice of the specific offences found in the penal code. It is the source for the phrase ‘$DWQH TDE’ (congregation of holiness/ holy community), used in the Rule of the Community to refer to the Qumran community in varying forms.32 The sanctity of the community is impinged upon when a member infringes one of its provisions, and this requires his temporary or permanent exclusion. Deuteronomy 23: 11–15 is another pericope whose injunctions are grounded in the requirement to preserve holiness. The Torah commands that someone who has had a seminal emission must leave the camp and that excretion should also take place outside the camp, based on the following rationale: ‘For YHWH your God walks about amid your camp, to rescue you, to give your enemies before you; so the camp is to be holy, so that He does not see among you any nakedness (RBD TWRE) and turn away from you’ (v. 15). Josephus’s description of the care taken by the Essenes not to expose their skin to the sun while relieving themselves indicates that they interpreted this injunction literally, as a prohibition against exposing their nakedness.33 Undoubtedly, the phrase ‘so that He does not see any nakedness among you’ served the author of the penal code as the source for the following three offences: 30 Although it is possible that the wording of some of the provisions is unrelated to these verses, still, their assembly and ordering in a single list is indicative of a close bond with the pericopes in Leviticus, Numbers, and Deuteronomy. 31 32 Schwartz (1999), 305. See 1QS 5: 21; 8: 5, 17, 20, 21; and 9: 6. 33 Josephus, The Jewish War, 2. 148–9.

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1. And whoever walks about naked in front of his fellow, without needing to, shall be punished for three months. 2. And the person who spits in the course of a meeting of the Many shall be punished thirty days.34 3. And whoever takes out his hand from under his clothes, or if these are rags which allow his nakedness to be seen, he will be punished thirty days. (1QS 7: 12–14) The final two concrete provisions in the list in the Rule of the Community treat ‘grumblers’: ‘the man who grumbles (IWLY) against the authority of the community’ and ‘if it is against his fellow that he grumbles’. The biblical background to these provisions is the stories of the complaints (TWNWLT) of the Israelites in the desert and, more specifically, in my opinion, the pericope of Korah and his band (Numbers 16–17). Korah and his band of rebels question the leadership of Moses and Aaron. Moses suggests a test to determine who the chosen group is: Korah and his followers should bring an offering of incense on their censers which may or may not be accepted by God, determining their favour in his eyes (or the lack thereof). Their offering turned out to be ‘alien fire’, as a result of which ‘fire went out from before the presence of God and consumed the fifty and two hundred men, those who had brought near the incense’ (v. 35). As in other instances of the ‘desecration of God’s name’, the divine response harms not only the sinner himself, but also his family and immediate community: divine fury took the form of a plague that killed 14,700 people before Aaron succeeded in halting it (17: 11–16).35 Grumbling therefore poses a danger not only to the status of the communal leaders (a sufficient reason to outlaw the phenomenon), but also to the entire community, both physically and spiritually. The theological basis for the addition of the offence of grumbling to the penal code, like the other provisions, is that it harms the sanctity of the community. The penal code, a sectarian innovation intended to serve the Qumran community’s special needs and protect its unique social structure, was, at the same time, the sectarian realization of the divine word and of the divine command ‘you shall be holy’. The seriousness with which the Rule of the Community and the 34

For the rationale of including the injunction against spitting together with exposing ones nakedness, see Shemesh (2008a), 211–12. 35 See Jacob Milgrom’s comments in Milgrom (1990), 342–3.

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Damascus Document relate to the penal code is the sectarian manifesto for its status as a ‘holy community’. The list of offences was grounded in three biblical pericopes, which also dictate the arrangement of some of the details in the list and serve as the blueprint for the order of its composition.

CONCLUSIONS Though the Rule of the Community and the Damascus Document (and other compositions from Qumran) contain distinct textual units devoted to communal rules and regulations, and in spite of the fact that at times scholars point to their origins in other neighbouring societies, it is now clear that the sectarians themselves didn’t distinguish between biblical and non-biblical ordinances. In their own minds, every piece of the law is of divine origin and has the same status.

REFERENCES Anderson, G. (1994), ‘The Status of the Torah Before Sinai’, DSD 1: 1–29. Baumgarten, A. I. (1997), ‘The Zadokite Priests at Qumran: A Reconsideration’, DSD 4: 137–56. Baumgarten, J. M. (1992), ‘The Cave 4 Versions of the Qumran Penal Code’, JJS 43: 268–76. Charlesworth, J. H. (ed.) (1995), The Dead Sea Scrolls: Hebrew, Aramaic and Greek Texts with English Translation (Tübingen: Mohr Siebeck). Dimant, D. (2006), ‘Two “Scientific” Fictions: The So-called Book of Noah and the Alleged Quotation of Jubilees in CD 16: 3–4’, in P. W. Flint et. al. (eds.), Studies in the Hebrew Bible, Qumran and Septuagint, presented to Eugene Ulrich (VT.S 101; Leiden: Brill), 230–49. Forkman, G. (1972), The Limits of the Religious Community: Expulsion from the Religious Community within the Qumran Sect, within Rabbinic Judaism, and within Primitive Christianity (Lund: CWK Gleerup). Hempel, C. (1998), The Laws of the Damascus Document: Sources, Tradition, and Redaction (Leiden: Brill). Kister, M. (1987), ‘The History of the Essenes: A Study of the “Vision of Animals”, Jubilees and The Damascus Document’, Tarbiz 56: 1–18 (Hebrew).

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—— (1988), ‘Marginalia Qumranica’, Tarbiz 57: 315–26 (Hebrew). Kugel, J. L. (1990), In Potiphar’s House: The Interpretive Life of Biblical Texts (San Francisco: Harper). Licht, J. (1965), The Rule Scroll: A Scroll from the Wilderness of Judaea, 1QS, 1QSa, 1QSb: Text, Introduction and Commentary (Jerusalem: Mossad Bialik) (Hebrew). Metso, S. (1997), The Textual Development of the Qumran Community Rule (Leiden: Brill). —— (2006), ‘Creating Community Halakhah’, in P. W. Flint et al. (eds.), Studies in the Hebrew Bible, Qumran and the Septuagint, Presented to Eugene Ulrich (VT.S 101; Leiden: Brill), 279–301. Milgrom, J. (1990), The JPS Torah Commentary: Numbers (Philadelphia: Jewish Publication Society). Murphy-O’Connor, J. (1972), ‘A Literary Analysis of the Damascus Document XIX, 33–XX, 34’, RB 79: 544–64. Pouilly, J. (1975), ‘L’Évolution de la législation pénale dans la communauté de Qumrân’, RB 82: 522–51. Qimron, E. (2010), The Dead Sea Scrolls, The Hebrew Writings I (Jerusalem: Yad Ben-Zvi) (Hebrew). Shemesh, A., (1997), ‘Rebuke, Warning and the Obligation to Testify––in Judean Desert Writings and Rabbinic Halakhah’, Tarbiz 66: 149–68 (Hebrew). —— (2008a), ‘The Scriptural Background of the Penal Code in The Rule of the Community and Damascus Document’, DSD 15: 191–224. —— (2008b), ‘4Q265 and The Book of Jubilees’, Zion 73: 5–20 (Hebrew). —— and Werman, C. (1998), ‘Hidden Things and Their Revelation’, RdQ 18: 409–27. Schiffman, L. H. (1975), The Halakhah at Qumran (SJLA 16; Leiden: Brill). —— (1983), Sectarian Law in the Dead Sea Scrolls: Courts, Testimony, and the Penal Code (Chico, Calif.: Scholars Press). Schwartz, B. J. (1999), The Holiness Legislation: Studies in the Priestly Code (Jerusalem: Magnes) (Hebrew). Weinfeld, M. (1986), The Organizational Patterns and the Penal Code of the Qumran Sect: A Comparison with Guilds and Religious Associations of the Hellenistic-Roman Period (Fribourg: Éditions Universitaires; Göttingen: Vandenhoeck & Ruprecht). VanderKam, J. C. (1997), ‘The Origins and Purposes of the Book of Jubilees’, in M. Albani, J. Frey, and A. Lange (eds.), Studies in the Book of Jubilees (TSAJ 65; Tübingen: Mohr Siebeck), 3–24. Werman, C. (1995), ‘The Attitude towards Gentiles in the Book of Jubilees and Qumran Literature Compared with Early Tanaic Halakha and Contemporary Pseudepigrapha’, Ph.D. thesis (Jerusalem). Wieder, N. (1962), The Judean Scrolls and Karaism (London: East and West Library).

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14 The Jurist as a Mujtahid––the Hermeneutical Concept of Abu ¯¯ l-H . asan Alı¯ al-Ma¯wardı¯ (d. 449/1058) Irene Schneider

1. INTRODUCTION: ISLAMIC LAW AS A HOLY LAW A complex relationship exists between religion, as a body of spiritual doctrines as well as a system of rituals and norms of behaviour, and law, as a set of rules governing the social and political existence of mankind. Religious norms as laid down in holy texts need interpretation for their application. As Weiss puts it: ‘the law of God is not something that presents itself to us as a fully articulated body of rules. It is rather something that must be searched for, and this search is essentially a hermeneutical venture that takes the searcher into a vast arena of texts.’1 Thus hermeneutics of the texts become the link between the rules of the ‘holy’ law and their application. This is especially true if the hermeneutical methods and interpretation are developed by a jurist for the purposes of judicial activity. In what follows I will analyse the hermeneutical approach for judges developed by Abu ¯¯ l-H . asan Alı¯ al-Ma¯wardı¯ (d. 449/1058). Al-Ma¯wardı¯ was not the author of al-Ah.ka¯m al-sult.a¯niyya (The Ordinances of Government), one of the most important books on public law in medieval Islam, only. He also authored many other books, including adab (belles-lettres) and works on prophecy, a commentary on the Qura¯n, and a huge compendium on fiqh (jurisprudence) with the title, al-H . a¯wı¯ al-kabı¯r (The Great 1

Weiss (1992), 739.

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Collection).2 Al-Ma¯wardı¯’s hermeneutical approach, which will be dealt with here, is part of this compendium on jurisprudence. It is to be found in the chapter on the law of procedure and the proper behaviour of the judge (adab al-qa¯d.¯ı).3 In this tract, titled Adab al-qa¯d.¯ı, al-Ma¯wardı¯ deals with practical advice to judges. He then moves on to the ‘us.u¯l al-fiqh’, the principles or theory of law. He explains that the Qura¯n and Sunna are the textual sources, and ijma¯ (consensus) and qiya¯s (analogy) are further methods of interpretation, arguing that the judge has to know these to base his decisions on them. The hermeneutics al-Ma¯wardı¯ develops for the interpretation of the Qura¯n and Sunna are thus placed into a clearly practical context, to transfer the rulings in the holy texts into judgments.4 Both textual sources, the Qura¯n and h.adı¯th literature (the Prophet’s tradition, or the sunna), are manifestations of God’s will in time. Thus the questions arise: What are the implications for the state and for society when law is––as in the Islamic case––principally thought to be divine, being taken from a source, the Qura¯n, which was revealed in a special historical situation, after the revelation had come to an end? How does one deal with the normative acts, sayings, and decisions of the Prophet long after he died? How can God’s will as expressed in the Qura¯n––and to a lesser extent in the Sunna––be applied to the changing circumstances of social life and political systems? How can these rules and norms be understood in the specific situation? Or, more generally, how can the eternal be manifested in time? On this basis, the following questions with regard to al-Ma¯wardı¯’s exegetical approach to the texts will be asked: 1. What methodological concepts does al-Ma¯wardı¯ consider necessary for exegesis of the texts of the Qura¯n and Sunna? 2. What are the consequences of this approach for the application of the holy law to the conditions of human society?

2

Brockelmann (2012). Al-Ma¯wardı¯ (1994), quoted as AQII. I worked with an additional edition of Adab al-qa¯d.¯ı (al-Ma¯wardı¯ (1971), quoted as AQ I. 4 For the genre of us.u¯l al-fiqh and its development, see Lowry (2002). See also Hallaq (2002). For a far more detailed discussion of the hermeneutic problem, see Weiss (1992), who deals with the approach of al-A¯midı¯ (631/1233). 3

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I have analysed Al-Ma¯wardı¯’s approach to the Qura¯n elsewhere.5 In this chapter I will focus on his approach to the Qura¯n and Sunna, and compare his approaches to these two main textual sources. At the beginning it is necessary to give a short introduction to the political and intellectual history and to the lifetime of al-Ma¯wardı¯, including the political situation as well as the theological discussions that formed his environment.

2. HISTORICAL DEVELOPMENT From the hijra, Muh.ammad’s move from Mecca to Medina in the year 1/622, onwards, the Prophet was explicitly both a political and a religious leader. Revelations came in special situations and circumstances called asbab al-nuzu¯l (the ‘reasons of revelation’), and the Prophet himself––according to later tradition––explained them to the Muslims. After the Prophet’s death, two questions thus arose: who should guide the community of the Muslims (the umma)? And on what basis? The first question had to be decided quickly, as the Prophet did not leave an heir nor any guidance for the umma on how to proceed. Thus the institution of the caliphate (from khalı¯fa, representative) arose. It remained the central political institution in Islam until the beginning of the twentieth century. Al-Ma¯wardı¯, in his book al-Ah.ka¯m al-sult.a¯niyya, dealt with the conditions of the ideal Islamic ruler and the structure of the Islamic state. This book is considered an important contribution in this field. The question of the basis of human decisions and rulings was more difficult to answer. The formation of Islamic law as well as legal theory must be described as a long process on which there is a great deal of scholarship.6 It culminated in the third–fourth/ninth–tenth century with the development and acknowledgement of the us.u¯l alfiqh (the principles of jurisprudence), which are for the Sunnı¯ Islam the Qura¯n and the Sunna, ijma¯ (consensus of scholars), and qiya¯s (analogy).

5

Schneider (2006). For the difficulty of the reconstruction of the history of the first two centuries, for which we do not have sources other than the Qura¯n, see Schneider (1999), 62–74. 6

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Legal rulings of the Qura¯n relate especially to the fields of family, inheritance, and penal law, but the Qura¯n itself certainly cannot be described as a law book. The rulings are eclectic, including certain questions of law, leaving out others. Wild has stated that the Qura¯n is perhaps ‘der am stärksten selbstreferentielle heilige Text der Religionsgeschichte’.7 The Qura¯n itself states that abrogation of verses through other verses is possible (Qura¯n 2: 100)8 and it contains verses––as will be shown––that are seen as difficult or even impossible for human beings to understand (3: 5). It is generally accepted that the Qura¯nic text was canonized some decades after the Prophet’s death in the time of the third caliph, Uthma¯n.9 The compilation of the Sunna, the Prophet’s words, acts, and decisions, took longer and had a longer and more complicated editorial process. The Sunna, based on the h.adı¯th (plural: ah.a¯dı¯th, lit. reports of the acts, sayings, or decisions of the Prophet), were compiled around the third/ninth century and collected in the so-called ‘six books’, of which the compilations of al-Bukha¯rı¯ (d. 256/870) and al-Muslim (d. 261/875) are considered the most reliable by Sunnı¯ Muslims. Western scholars, however, have insisted that the traditions accepted by Muslims as ‘sound’, i.e. authentic, contain much that cannot be authentic.10 Furthermore, the textual sources of Islamic law differ from each other not only in their editorial history. Whereas, according to Islamic tradition, the Qura¯n is God’s word, and, according to Islamic theology, after the Mutazilit period in the third/ninth century it is eternal and uncreated (the Mutazila, a religious-political movement, had proposed its createdness), the Sunna contains the normative acts of the Prophet. As political history, legal concepts, and theological discussions are very much connected in early Islam, a short historical sketch of the developments before al-Ma¯wardı¯ has to comprise all three aspects. The development can only be roughly outlined, however, and some aspects important for the understanding of al-Ma¯wardı¯’s time given. One aspect is the history of the theological-political movement of the Mutazilits, which played an important, even decisive, role in the Islamic state in the third/ninth century. This movement comprised different approaches as well as various thinkers, but some general lines that are interesting in our context 7 10

8 Wild (2001), 33. Powers (1988). See Schacht (1979); Schneider (1999).

9

Neuwirth (1987).

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will be stated.11 The Mutazilits recognized five principles, the most important two being the divine unity and God’s justice. As a consequence they believed in man’s responsibility for his acts and the freedom of the human will.12 This encompassed freedom of human action and human choice between good and evil.13 They gave aql (reason) a special role. This led some Orientalists to the conclusion that they were ‘liberals’ and ‘Freidenker’.14 Watt made clear: ‘They were not free-thinkers but quite definite Muslims.’15 Reason was always seen as the basis of the theological system and not independent from it. Goldziher argues that the Mutazilit movement continued to exist after its downfall as an official doctrine in the early Abbasid period, even though this downfall has to be seen as the end of the political role of the Mutazilits.16 The main developments in the legal history of the fourth–fifth/ tenth–eleventh centuries were the emergence of several (later reduced to four) main Sunnı¯ schools of law (the H . anafı¯s, the Sha¯fiı¯s, to whom al-Ma¯wardı¯ belonged, the H . anbalı¯s, and the Ma¯likı¯s), the so-called ‘closing of the door of ijtiha¯d’ and––on the theological level––the establishment of what has since come to be known as Sunnism. I will refer to several of these points after dealing with al-Ma¯wardı¯’s time and circumstances and his hermeneutical approach. Political developments in al-Ma¯wardı¯’s time under the rule of the Abbasid caliphate (132–656/749–1258) had seen the process of the loss of power for the caliphs in the provinces of the great Muslim empire, which more or less became independent, and in Baghdad, the centre of Abbasid power itself, the Bu ¯¯yids, a foreign dynasty, dominated the caliph. Still the Abbasid caliph ruled if not politically at least as the spiritual leader of the Muslim community.

11

For a history of the research on the Mutazila, see Schmidtke (1998). Watt (1979), 58–71. 13 Schmidtke (1998), 383, 397–8. Schmidtke (1998), 406 states that the later history of the Mutazila still remains under-researched. It seems to me that research on the later Mutazila is very much focused on persons and not so much on concepts (the concept of aql, for example) and methods. 14 For the discussion see Schmidtke (1998), 386. 15 Watt (1979), 58. 16 Schmidtke (1998), 387. 12

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¯¯ L-H 3. ABU . ASAN ALI¯ AL-MA¯ WARDI¯ (d. 449/1058) –– HIS LIFE AND TIMES Abu ¯¯l-H . asan al-Ma¯wardı¯ was not only a well known author and jurist but also seems to have been an extraordinary man, not only engaged in scholarship but also deeply involved in the political and social developments of his time. As far as we know he seems to have been a loyal adherent of the ruling dynasty––how could his personal engagement for the caliph and against the Bu ¯¯yid ruler otherwise be interpreted? Opinions about his book on public law, al-Ah.ka¯m al-sult.a¯niyya, differ. Whereas older research saw it as a ‘purely theoretical work’ without connection to the political reality he lived in,17 newer research has, correctly in my view, pointed to the fact that al-Ma¯wardı¯ and his work should be seen in the context of his time and that al-Ma¯wardı¯ should not and cannot be seen as a scientist working in a ivory tower.18 Does al-Ma¯wardı¯’s main work on public law in Islam really express anachronism because it remains fixed to the overruling spiritual and political power in the hand of the caliph? Or did he, politically active as he was, recognize the signs of the times and cautiously try to change the responsibilities, as some remarks in his work seem to suggest? But why did he not finally recognize that the concept of a religiously legitimized caliphate was over and done with? Did he adhere to the sect of the Mutazilits, as some of the later scholars would have it?19 Belonging to the Mutazila would have greatly damaged his relationship with the ruling dynasty he otherwise supported so actively in theory as well as in politically sensitive situations. Was he thus a loyal supporter of the religious politics of the caliph, the newly created ‘orthodoxy’ or––God forbid––a Mutazilit, a fighter for the role of reason and human responsibility, thus belonging to a theological movement of the early Abbasid Empire? These questions reflect the difficulty of reconstructing the personal life and political engagement as well as religious creed of al-Ma¯wardı¯, on the one hand, and the complex relationship between theology and power on the other. It will become clear from the short historical overview that follows that to state that in Islam ‘religion 17 19

18 Brockelmann (2012). Laoust (1968), 13 f. For this discussion, see Schneider (2006), 73–8.

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and politics are one’ is too simple a statement to describe the difficult interaction between the field of religiosity and state politics alMa¯wardı¯ lived in and in which he had to act. Al-Ma¯wardı¯ lived in an extraordinary time. The eleventh century of the Christian era––the fifth according to Islamic reckoning––was a time of religious and political turbulence. Al-Ma¯wardı¯ lived in Baghdad, the centre of the Abbasid caliphate and the Islamic empire. The caliphate was established after the Prophet’s death as an institution to continue the legacy of the Prophet’s rule. However, the unity of the caliphate––the close integral connection of spiritual, political, and legal leadership––had broken down long before. Not only was there another Sunnı¯ rival caliphate in al-Andalus (already under the Umayyad Abdalla¯h 275–300/888–912 in Cordoba), but also the Shı¯ite Fatimids in North Africa established a rival caliphate at the beginning of the fourth/tenth century (Ubaydalla¯h al-Mahdı¯ ruled from 297–322/909–34 in Mahdı¯ya). The fifth/eleventh century can thus be called the ‘century of the caliphates’. This has to be evaluated against the classical idea of the caliph, also the one strongly promoted by al-Ma¯wardı¯, as the one and only person to control the religious as well as political side of rule of the whole Muslim umma. Furthermore, the caliphate, which had experienced the development of internal weaknesses and fights of the ruling dynasty, was since 322/945 under the rule of the dynasty of the Bu ¯¯yides (322–454/ 945–1055). This was the more shameful from the perspective of the Sunnı¯ Caliphate as the Bu ¯¯yids, a dynasty coming from the shores of the Caspian Sea, were Shı¯ites. Thus a Shı¯ı¯ dynasty in fact dominated the Sunnı¯ caliphate. Al-Ma¯wardı¯, the author of the earliest and one of the most important books on public law in Islam, did not mention a single word about this situation in his Al-Ah.ka¯m al-Sulta¯niyya. This is why his book used to be considered by scholars to be purely theoretical. On the other hand, he dealt cautiously with problems such as that of ‘rule through usurpation’ and discussed the consequences, thus showing that he of course knew and had reflected on the political reality of his time.20 Abu ¯¯ l-H . asan Alı¯ b. Muh.ammad al-Ma¯wardı¯ (364–449/975–1058) studied Sha¯fiite law and traditions in Basra and Baghdad; he then

20

Al-Ma¯wardı¯ (1960), 33.

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became a judge in Baghdad.21 He also acted as a teacher and seems to have trained jurists and judges. His close relation to teaching can be seen from his book of advice and rules of behaviour for the judge, Adab al-qa¯d.¯ı, which contains practical information and which surely was intended to be used in the training of future judges.22 Whereas he was a judge on the one hand and a teacher and trainer of future judges on the other, his third job was political. Al-Ma¯wardı¯ had close relations with the ruling dynasty. For the Caliph al-Qa¯dir (r. 380–422/991–1031) he wrote Kita¯b al-Iqna¯ (Book of Conviction), 23 a short version of his great fiqh compendium, al-H . a¯wı¯. After al-Qa¯dir’s death, he acted as a diplomat between the caliph and the Bu ¯¯yid Jala¯l al-Dawla in several cases, and he denied the Bu ¯¯yid ruler ¯¯qs, a the right to the title of ‘King of the Kings’.24 When the Selju Turkmen dynasty, appeared and finally in 447/1055 ended the rule of the Bu ¯¯yids in Baghdad and took power, he was still in Baghdad but seems to have retired from public life. He died in 449/1058. The end of his life thus coincides with an important development in public law: the Sunnı¯ Selju ¯¯q Toghrilbeg finally received the title ‘sult.a¯n’25 and thus established officially the political rule beside the religious rule of the caliph. The caliph ended up as the leading religious figure more or less without political authority. This situation shows the difficult position of the caliph. How to establish the caliph’s legitimacy and how to keep it in confrontation with the Bu ¯¯yids? This was not only a political problem, it was also a theological one––against the Shı¯ı¯te dominance. Already in 408/1018 al-Qa¯dir had published a decree which became famous as the ‘Qa¯dirı¯ya’.26 The intention of this decree was not only to formulate a creed that should unite all (Sunnı¯) Muslims in the Abbasid Caliphate, but also to establish a basis for the religious politics of the state. It became the starting point of the formation of what has since been called ‘the Sunna’. In contrast to the old political-religious opposition party, the ‘Shı¯a’ (which simply means ‘party’, of Alı¯ b. Abı¯ Ta¯lib), the Sunnı¯ theological thought had not been established as a united belief-system so far but had gone through various phases of development of theological discussions and disputes, state-sponsored religious groups etc. The ‘Qa¯dirı¯ya’ now contained a 21 23 26

22 Brockelmann (2012). Schneider (1990), 169–73. 24 25 Laoust (1968), 13. Nagel (1981), 346–7. Nagel (1981), 348. Laoust (1968), 70 ff.; Nagel (1988), i. 56, 58; Makdisi (1997), 9 ff.

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programme of the ahl al-sunna wal-jama¯a, a refutation of the Shı¯a (which in fact dominated the state) as well as a refutation of speculative theology (kala¯m) as a methodological tool especially of the hated Mutazilites, the ‘rationalists’, in early theological debates.27 The best humans after the Prophet were the as.ha¯b, the Companions of the Prophet, and orientation had to be with them.28 The Qa¯dirı¯ya is a document which shows, in a time of desperate struggle against the Shı¯a domination, the contest for a new positioning of the caliphate, to formulate a Sunni orthodox creed and to establish it at the political level.29 As Nagel puts it, the theology was constructed on the basis of this development into a ‘safe and irrefutable system’30 based on tradition (naql) as opposed to the arguments of the Mutazila, which were based on rationality (aql ). This is how the development in the centre of political power in the fifth/eleventh century is normally characterized. What role did Ma¯wardı¯ play in this situation? We will take a closer look at his hermeneutical approach towards the Qura¯n and Sunna.

4. AL-MA¯ WARDI¯ ’S HERMENEUTICAL APPROACH TO THE HOLY TEXTS: QURA¯ N AND SUNNA

4.1. The hermeneutics of the Qura¯n Unlike the conventional tafsı¯r books by scholars such as Abu ¯¯ l-Jafar al-T.abarı¯ (d. 310/923) or Abu ¯¯ l-Qa¯sim al-Zamakhsharı¯ (d. 539/ 1144), al-Ma¯wardı¯ does not discuss the Qura¯n by approaching it verse by verse, discussing each sentence and statement from the point of view of grammar, semantics and/or the different possible interpretations of others, especially the Companions of the Prophet. Instead, he conceptualizes a concise methodological instruction or guidance for a practical understanding of the Qura¯nic text.31 On the basis of an equipment of methods he develops a set of rules for the interpretation of the Qura¯n. Qura¯nic verses are here only used as Laoust (1968), 70 ff.; Gimerat (1992), 783–93; Makdisi (1997), 9 ff. Laoust (1968), 70 ff.; Makdisi (1984), 30. 29 30 Nagel (1981), i. 326 ff. Nagel (1988), 18. 31 In printed pages, al-Ma¯wardı¯’s approach to the Qura¯n is about 90 pages long, his dealing with the Sunna 80 pages. 27 28

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examples illustrating the methodological problems. Al-Ma¯wardı¯ normally formulates the problems, then gives some opinions of the schools of law and then at the end gives his own evaluation with a clear statement of what should be accepted according to his own opinion. To show al-Ma¯wardı¯’s arguments, I will paraphrase the introduction to his Qura¯nic hermeneutics. Al-Ma¯wardı¯ first discusses the consultation with scholars which is necessary for judges (AQ I, p. 255). Consultation is based on the Qura¯nic verse 42: 38 ‘ . . . and those who answer their Lord, and perform the prayer, their affair being counsel between them . . . ’ According to Sha¯fiı¯, master of al-Ma¯wardı¯’s school of law, consultation is mandu¯b (recommended) (AQ I, p. 255, according to AQ I, p. 260), or even mamu¯r (ordered). It is not necessary in clear cases where there is a consensus (ijma¯). It is necessary in new cases, in which there is no opinion (qawl) of the scholars, or in cases where there is dissent––this is in questions of ijtiha¯d (the use of individual reasoning). In any event, al-Ma¯wardı¯ sees consultation only as an aid for the judge to find the way to make his own decision (h.atta¯ yastawd.ih.a bihim t.arı¯q al-ijtiha¯d fa-yah.kumu bi-ijtiha¯dihi) (AQ I, p. 261). Furthermore, the consulted person must have a special qualification, which al-Ma¯wardı¯ makes equal to the qualifications needed for a muftı¯ giving a legal opinion ( fatwa¯ ) (AQ I, p. 264). This means that consultation is of practical relevance for the judge, but it cannot divert him from his individual reasoning (ijtiha¯d ). In the cases to be discussed, involving the exegesis of texts, however, it does not play a role. Al-Ma¯wardı¯ then discusses the reliance on the teaching of a master (taqlı¯d ), the opposite term to ijtiha¯d, and criticizes it (AQ I, p. 269), drawing from this the conclusion that the judge has to go into the principles of the law; Qura¯n, Sunna, ijma¯ and qiya¯s (AQ I, p. 273). As a consequence, it can be stated that the judge has to know the sources by himself and he has to be able to understand the texts himself, he is not allowed to rely on what others have interpreted so far. Two conditions are needed for this approach to analysis of the Qura¯n; language and reason (AQ I, p. 274 ff.). Al-Ma¯wardı¯ then begins dealing with the hermeneutics of the Qura¯n. In stressing again that direct dealing with the us.u¯l al-shar (the principles of the revelation) is necessary, he states that the proofs (h.ujaj) of reason are the basis for the understanding of the us.u¯l. This is why the revelation (shar) is in accordance with what reason says and is not in accordance with what reason prohibits or invalidates (AQ I, p. 275:

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wa-li-dha¯lika lam yarid al-shar  illa¯ bi-ma¯ awjabahu l-aql awjawwazahu wa-lam yarid bi-ma¯ h.az.arahu l-aql wa-abt.alahu). This is why proofs of evidence of reason dominate over evidence of tradition (sam) and lead to the knowledge of evidence itself (AQ I, p. 275: fa-s.a¯rat h.ujaj al-uqu¯l qa¯d.iyatan ala¯ h.ujaj al-sam wamuaddiyatan ila¯ ilm al-istidla¯l . . . ). The verses of the Qura¯n have three aspects; orders, prohibitions, and reports (AQ I, p. 277: amr wa-nahy wa-khabar).32 The reports do not interest al-Ma¯wardı¯, as a jurist he only deals with orders and prohibitions, i.e. those verses that contain rulings for the actions of the believers. All Qura¯nic orders are obligatory for al-Ma¯wardı¯ as long as there is not a hint of them being only a recommendation. On the other hand, all prohibitions are absolute prohibitions (AQ I, p. 278 ff.).33 Furthermore, al-Ma¯wardı¯ gives six antonyms as the basis for the interpretation of the Qura¯n (AQ I, p. 282, p. 368): 1. the general (al-umu¯m, ‘the generality’) versus the special (khus.u¯s.); 2. what needs explanation (mujmal, lit. ‘shortened’) versus the explained (mufassar); 3. the absolute (mut.laq) versus the restricted (muqayyad ); 4. the affirmation (ithba¯t) versus the negation (nafy); 5. the unambiguous (muh.kam, ‘strong’) versus the ambiguous (mutasha¯bih); 6. the abrogation (na¯sikh) versus the abrogated (mansu¯kh) (AQ I pp. 283–367, A. 494–766, A. 768). The Qura¯n as well as the Sunna have to be analysed on the basis of these antonyms. These antonyms are defined by al-Ma¯wardı¯ as follows:34 1. The general versus the special: This category is defined quantitatively (AQ I, pp. 283 ff.). The general is plural, at least three, the special singular. He explains this category by reference to the Qura¯n 5: 33–44 ‘this is the recompense of those who fight against God and His messenger . . . except for such as repent, before you have power over them . . . ’ See Goldfeld (1988), 18 ff. al-Ma¯wardı¯, quoting al-Sha¯fiı¯, uses the terms iba¯h.a and tah.rı¯m, see Schacht (2012a). 34 See also Schneider (2006), 64–8. 32 33

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2. That which needs explanation versus the explained (AQ I, pp. 290 ff.): ‘That which needs explanation’ comprises expressions in the Qura¯n the meaning of which cannot be understood, whereas the meaning of the mufassar verses can be understood. According to al-Ma¯wardı¯, a verse needing explanation is 2: 40: ‘And perform the prayer, and pay the alms, and bow with those that bow.’ He argues that this verse needs further qualification for its implementation. Nothing is said about the number of prayers, the amount of the tax, etc. His explanation for the existence of these kinds of verse is interesting: Mujmal verses are defined as an intellectual challenge. They can be explained either by ijtiha¯d––that is, by intellectual effort––or by tradition/sam (lit. hearing) (AQ I, pp. 294–7). He comments that proof is only possible through a text that is heard (nas.s. masmu¯) from the Qura¯n or Sunna (AQ I, p. 297). 3. The absolute versus the restricted (AQ I, pp. 298 ff.): a restriction can be attained by a situation (h.a¯l), a characteristic (was.f ) or a condition (shart.). Al-Ma¯wardı¯ gives the example of the Qura¯n 5: 6: ‘O believers, when you stand up to pray wash your faces . . . but if your are sick or on a journey, or if any of you comes from the privy, or you have touched women, and you can find no water, then have recourse to wholesome dust . . . ’. The illness is the condition for the permission to perform the ablution with dust. 4. The affirmation versus the negation (AQ I, pp. 308 ff.): With regard to this category, al-Ma¯wardı¯ takes three combinations into consideration: (a) an affirmation that is not connected to a negation, (b) a negation that is not connected to an affirmation, and (c) the possibility that both (affirmation and negation) are contained in a ruling. For the second point, he quotes as an example the saying of the Prophet: ‘God does not accept prayer without purity’ (AQ I, p. 311), stating that this negative formulation points to the fact that prayer is only accepted with purity. 5. The unambiguous versus the ambiguous (AQ I, p. 319 ff.): This antonym is based on Qura¯nic verse 3: 5: ‘It is He who sent down upon thee the Book, wherein are verses clear that are the Essence of the Book, and others ambiguous. As for those in whose hearts are swerving, they follow the ambiguous part, desiring dissension, and desiring its interpretation; and none knows its interpretation, save only God. And those firmly rooted in knowledge say . . . ’. This is one of the examples of a Qura¯nic metatext

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mentioned above that has evoked much discussion.35 Al-Ma¯wardı¯ gives eight different definitions of these two terms, among them that those verses are unambiguous that are abrogating and those are ambiguous that are abrogated. Already this reflects the enormous discussion of Muslim jurists on this topic and shows that the categories of antonyms are defined differently by different scholars. Al-Ma¯wardı¯ deals with the abrogation in the next category. He himself argues that unambiguous verses can be explained by reason, whereas mutasha¯bih verses cannot, for example, the number of prayers or fasting in the month of Ramad.a¯n and not in the month of Shaba¯n (AQ I, p. 323).)36 6. The abrogating versus the abrogated (AQ I, p. 333 ff.): finally the scholar or––in this case, the jurist or judge––has to know whether the verse is abrogating another verse or has itself been abrogated.37 This category is very much discussed in the exegetical literature. The possibility of abrogation is itself stated in the Qura¯n 2: 100: ‘And for whatever verse We abrogate or cast into oblivion, We bring a better or the like of it.’ An example of an abrogated verse is 2: 180 with regard to inheritence that was abrogated by 4: 11 in which legal shares are given. Al-Ma¯wardı¯ understands abrogation as the annulment of a ruling in the revealed law (shar) but not in reason (du¯na l-aql) (AQ I, p. 333). This means: what has been revealed is in accordance with reason and exists in reason, it can only be annulled or suspended as a ruling but will always be existent in reason––or as we would say, collective memory.

4.2. The hermeneutics of the Sunna In general, al-Ma¯wardı¯ states that all the rules that are applicable for the kita¯b, i.e. the Qura¯n, are also applicable to the Sunna.38 He explicitly quotes the six antonyms just quoted, which are, according to him, also to be applied to the ah.a¯dı¯th, the texts containing the Sunna, i.e. the rulings of the Prophet (AQ I, p. 422). Al-Ma¯wardı¯ proceeds to argue that Sunna is the second principle because God made the Prophet the seal of all prophets and completed with him the divine law. God gave him signs (baya¯n) of the hidden (here he 35 37 38

36 See Kinberg (1988). Kinberg (1988), 153, 155. For the methodological tool of abrogation, see Powers (1988). ¯ midı¯, see also Weiss (1992), 166. For the same statement from al-A

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points to the mujmal and mutasha¯bih) and showed the Prophet which rules He gave (kamala bihi al-sharı¯a wa-jaala ilayhi baya¯n ma¯ akhfa¯hu min mujmal aw-mutasha¯bih wa-iz.ha¯r ma¯ yusharriu min al-ah.ka¯m wal-l-mas.a¯lih.: AQ I, p. 368), quoting Qura¯n 16: 45: ‘We sent not any before thee, except men to whom We revealed: “Question the people of the Remembrance, if it should be that you do not know”.’ This is why people are obliged to obey God in his rules ( fı¯ qabu¯l ma¯ sharraahu lahum), and in what He orders and forbids, as is laid down in the Qura¯n (59: 7) ‘And whatever spoils of war God has given unto His Messenger from them, against that you picked neither horse nor camel; but God gives authority to His Messenger . . . ’ (AQ I, p. 368). Al-Ma¯wardı¯ argues that the Sunna is made from signs (baya¯n) and information (bala¯gh) (AQ I, p. 379). People have to obey the Prophet and report from him (AQ I, p. 369). The forms of these akhba¯r (traditions)39 differ. Al-Ma¯wardı¯ divides them into three types. First (AQ I, p. 371) there are akhba¯r istifa¯d.a which could be translated as ‘well-known’ traditions,40 the second are akhba¯r tawa¯tur (uninterrupted transmissions), which are traditions with a reliable transmission, and the third are akhba¯r a¯h.a¯d (traditions from single transmitters). This division is mostly a formality, showing that alMa¯wardı¯ is positioned in the traditional h.adı¯th discussion, according to which the reliability of h.adı¯th had to be proved on the basis of a chain of transmitters (isna¯d ) and criteria of the text (matn). I will not go into details, but usually akhba¯r at-tawa¯tur (and even more akhba¯r al-istifa¯d.a, which are considered to be even stronger than the tawatur) are seen as reliable, whereas akhba¯r a¯h.a¯d are a problem because not enough transmitters confirm these traditions (AQ I, pp. 371–81). Al-Ma¯wardı¯’s example for the khabar al-istfa¯d.a (AQ I, p. 371) is interesting. The khabar al-istfa¯d.a is a tradition that is well known to both the pious and the cruel, the wise man as well as the stupid man acts according to it, the transmitter is not in difficulty about it and the listener does not have doubts about it. Al-Ma¯wardı¯ gives an example from the Christian context (AQ I, p. 373): 39 Al-Ma¯wardı¯ does not use the term that was normal at this time, h.adı¯th (pl. ah.a¯dı¯th), but khabar (pl. akhba¯r), meaning report. 40 According to AQ I, p. 371 n. 1, this is a special category devised by al-Ma¯wardı¯. I was not able to find it anywhere else.

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When it was stated that the message about the killing of Jesus is well known (istafa¯d.a) among the Christians God made known their lie. It is said that the killing of Jesus is made known according to the tradition of four who have seen the killing and it is stated that they were Matthew, Luke, Mark and John. In a case like this agreement and error are possible. The tradition was then made well known from them. In principle thus the traditions were from (four, I.S.) single persons, only the spreading became well known.41

As becomes evident from this example, a¯h.a¯d traditions (lit. ‘going back to one person’) pose problems, because in this case four persons reported the event––the killing of Jesus––but it cannot be accepted according to Islamic theology (4: 157). There are differences of opinion about how many transmitters make up ah.a¯d traditions; some say two in each generation, others say four. The majority thinks that the number is not certain but that acting even on a tradition transmitted by one person is obligatory (AQ I, p. 378). Al-Ma¯wardı¯ gives an example: Abu ¯¯ Bakr decided the inheritance of a grandmother on the basis of a khabar al-wa¯h.id, and he took the poll tax (jizya) from the Maju ¯¯z, the Zoroastrians, on the same basis (AQ I, p. 379). The khabar al-ah.ad is acceptable for al-Ma¯wardı¯ and for the majority of the jurists, and thus has to be acted upon as long there is no reason (aql) against it (ma¯ lam yamna minhu al-aql: AQ I, p. 375). The case of Jesus is not discussed further. Al-Ma¯wardı¯ furthermore deals extensively with (a) the transmitters, and (b) the transmitted texts. Transmitters have to be of age (ba¯ligh) and have to have reason, but this is not the same reason necessary for legal capacity (taklı¯f ): it has to be the distinguishing reason (al-aql al-mu¯qı¯z.) which enables persons to differentiate between right (s.ah.¯ıh.) and wrong ( fa¯sid ) (AQ I, p. 383). Women may be transmitters according to the Sha¯fiı¯ school of law, whereas Abu ¯¯ H anı ¯ fa did not accept women in this field, with the exception of two . wives of the Prophet, A¯isha and Umm Salama (AQ I, p. 383). The reason for the former view is that for ifta¯ (giving a legal opinion), women are accepted, so that females are not generally excluded from the area of transmission (AQ I, p. 385). Al-Ma¯wardı¯ also deals with the isna¯d, i.e. the chain of transmitters going directly back to the Prophet, and the wording of the text (AQ I, 41

For this example, see van Ess (1966), 412. According to him, this was one of the oldest objections to the reliability of tawa¯tur traditions. See also van Ess (1997), iv. 651.

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p. 391). With respect to the transmission by hearing of a minor, this is acceptable if the minor is one who is already capable of ‘distinguishing’ (mumayyis) (AQ I, p. 390). Transmission is discussed from the point of view of both hearing and writing (AQ I, p. 391). The chain has to be uninterrupted (AQ I, pp. 397–9). The Sunna contains three parts: (1) that which the Sunna is taken from; (2) that which must be explained by the Sunna; and (3) the action to which the Sunna obliges (AQ I, p. 422–3: ma¯ yukhadhu min al-Sunna wa-tha¯nı¯ ma yajibu baya¯nuhu bi-l-Sunna wa-tha¯lith ma yalzamu al-amal bihi min al-Sunna). The first category comprises sayings, actions, and decisions of the Prophet (qawluhu, filuhu, iqra¯ruhu) (AQ I, p. 423), and the sayings must be obeyed (see Qura¯n 4: 59, AQ I, p. 423). The actions that are connected with other than religious affairs, such as eating, drinking, clothing, sleeping––all these things are allowed (iba¯h.a) but not obligatory (wuju¯b) (AQ I, p. 427), because actions of the Prophet are between the good (h.asan) and the allowed (ja¯iz). And the Prophet did not do anything that was against reason (ma¯ yuqbah.u fı¯ l-aql) or against the revelation (ma¯ yukhrahu fı¯ l-shar). However, the Prophet had a special status in certain points, for instance, in (the number of his) wives (AQ I, p. 427), having more wives than ordinary believers are allowed to have. There are, to summarize, things that were allowed for him but forbidden for others, things that were recommended for him but reprehensible (makru¯h) for the believers, things that were obligatory and recommendable (nadb) only for him (AQ I, pp. 428–31). The second category comprises that which must be explained by the Sunna (AQ I, p. 433). This is first what needs explanation from the rights of God (h.uqu¯q alla¯h) and the rights of human beings (h.uqu¯q iba¯d ), and it is the explanation of what God has collected in the Qura¯n, such as prayer and alms (AQ I, p. 433).42 Secondly, it is what makes the explanation of the Prophet necessary in the rights of God but not with regard to the rights of men which means a specialization of the general (AQ I, p. 433). Third, it is what makes the explanation of the Prophet necessary with regard to the rights of men (AQ I, p. 434). Fourth, it is a category of rulings where there are dissenting opinions and where the Prophet took up rulings that were not in the Qura¯n (AQ I, p. 434). Here some examples are given, 42

The alms are the rights of men, the prayers the rights of God.

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including shufa (the right of pre-emption by the neighbour), bloodmoney to the extended family of the victim and a¯qila etc. With regard to the rights of God contained in the Qura¯n, the interesting question is dealt with, as to whether or not the Prophet has the right to ijtiha¯d (AQ I, p. 435). Al-Ma¯wardı¯ discusses opinions both for and against it, but he himself opts for the right of the Prophet to ijtiha¯d in certain judgments; in cases that oblige himself he cannot give ijtiha¯d, in cases that oblige men he can give ijtiha¯d (AQ I, pp. 435–7). The third category concerns the action that the Sunna obliges to (ma¯ yalzamu l-amal bihi min al-Sunna). The Sunna, al-Ma¯wardı¯ argues, is either alone in its ruling or connected to another principle (as.l). In what follows al-Ma¯wardı¯ discusses the important relation between the different principles of law (AQ I, p. 439). At this point intertextuality comes in: what is the relation in exegesis between the main textual sources, the Qura¯n and Sunna, how are they related to each other, and how can their rulings be seen in their interdependency? Is God’s own word ranked higher than the Prophet’s actions? And how are cases of interference discussed and resolved? Al-Ma¯wardı¯ approaches this problem thus: there is no problem, when Sunna and Qura¯n say the same thing, the rule is then very clear (AQ I, p. 440). It can then be discussed whether the Sunna or the Qura¯n is earlier and the obligatory character derives from the Sunna and the Qura¯n confirms it. When the book (i.e. the Qura¯n) is earlier, then the obligatory character is from the book and the rule is confirmed by the Sunna (AQ I, p. 440). However, when the book rejects the Sunna, it is not automatically followed only because it is the higher spiritual source, but different settings are taken into consideration. In case the book is earlier, action has to be according to the book (AQ I, pp. 440–1), but, according to the Sha¯fiites, in case the Sunna is earlier, action has to be on the basis of the Sunna and not the book, because, the Sha¯fiites argue, the Sunna is not abrogated by the book. Others in this school, however, allow abrogation of the Sunna by the book (AQ I, p. 441). And even when they are deemed equal or contemporary, the Qura¯n is not automatically taken as the basis for action, as there is a difference in opinions (ikhtila¯f ) among the Sha¯fiı¯s (AQ I, p. 441). According to one position, the book is first ‘because it is the principle or basis/as.l of the Sunna’ (AQ I, p. 441). According to a second opinion, the Sunna is to be taken because it is a specialization of God’s word (AQ I, p. 443),

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and the third position is to wait and look for an indication (dalı¯l) (AQ I, p. 443). This means that the methodological approach of the abrogation (na¯sikh wa-mansu¯kh) is true (a) for the exegesis of the Qura¯n, (b) for the exegesis of the Sunna, and also (c) for intertextual exegesis. Al-Ma¯wardı¯’s own position (AQ I, p. 443) is that if the Sunna is a specialization of the Qura¯n, then action has to be according to the Sunna and not the book, because the generality (umu¯m) of the book is specialized by the Sunna. But when it is a naskh, an abrogation, then action has to be according to the book, not the Sunna, because, according to his opinion, the book cannot be abrogated by the Sunna (AQ I, p. 443). Al-Ma¯wardı¯ differs thus from the majority view of his own school of law.43 If one text of the Sunna is confronted with another text of the Sunna and both agree, no problem arises. But what happens in a case where both do not agree? When an action in the Sunna contradicts a wording in the Sunna? Al-Ma¯wardı¯ discusses different variants here too, and concludes that, according to the Sha¯fiı¯ school, a saying of the Prophet can only be abrogated by another saying and an action only by another action (AQ I, p. 445), whereas others allow the ‘cross-abrogation’ of actions by words and vice versa (AQ I, p. 445). This Sha¯fiit position is based on the presumption that words generally come before actions (AQ I, pp. 446–7). In case the priority is not known, then the Companions of the Prophet come in. Their action can be seen as evidence for the abrogation of one or the other (AQ I, p. 447). With regard to ijma¯ (consensus)––the third principle of Islamic law––al-Ma¯wardı¯ states that in cases where both the Sunna ruling and the ijma¯ ruling are congruent, then ijma¯ serves as evidence (dalı¯l) for the correctness (s.ih.h.a) and the ruling is clear. The tradition (khabar) thus becomes mutawa¯tir, if it was not mutawa¯tir before (AQ I, p. 447). Secondly, in cases where the consensus differs from the Sunna, then this points to the fact that the Sunna is abrogated or its transmission is not ‘sound’ (s.ah.¯ıh.). In this case, the Sunna has to be dropped and action has to be according to consensus (AQ I, p. 448). Analysing this approach, which al-Ma¯wardı¯ argues is important for the exegesis of the Qura¯n as well as the Sunna, three terms seem 43

Al-A¯midı¯, a Sha¯fiı¯ too, also opted against this possibility, Weiss (1992), 537.

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to be of special importance; reason (aql), independent reasoning (ijtiha¯d ), and knowledge (ilm).

4.2.1. Reason (aql) Reason plays an important role in al-Ma¯wardı¯’s hermeneutical approach to the principles of law. Al-Ma¯wardı¯ writes: If the necessity for approaching the legal principles is thus established, then the causes leading to their knowledge [of the principles, I.S.] and acting upon it are twofold: First it is the intuitive knowledge and this is the reason: because the proofs of reason are the basis of the knowledge of the principles. There is no knowledge of the correctness of the principles without the proofs of reason. This is why the revelation is in accordance with what reason prescribes and allows and not in accordance with what reason prohibits . . . So the proofs of the reason become the basis for the proofs of the tradition leading to the knowledge of evidence. This is why many scholars call reason the ‘mother of the principles’. The second cause in the knowledge of the legal principles is the Arabic language. ( fa-idha¯ thabata wuju¯b al-naz.ar fı¯ l-us.u¯l al-shar¯ıya fa-l-sabab al-muaddı¯ ila¯ marifatiha¯ wa l-amal biha¯ shaya¯n: ah.aduhuma¯ ilm al-h.ass wa-huwa l-aql, li-anna h.ujaj al-aql as.l li-marifat al-us.u¯l idhan laysa turaf s.ih.h.at al-us.u¯l illa¯ bi-h.ujaj al-uqu¯l. Wa-li-dha¯lika lam yarid al-shar illa¯ bima¯ awjabahu al-aql aw-jawwazahu wa-lam yarid bima¯ haz.arahu al-aql wa-abt.alahu . . . fa-s.a¯rat h.ujaj al-uqu¯l qa¯d.iyatan ala¯ h.ujaj al-sam wa-muaddiyatan ila¯ ilm al-istidla¯l wa-li-dha¯lika samma¯ kathı¯r min al-ulama¯ al-aql umm al-us.u¯l. Wa l-sabab al-tha¯nı¯ fı¯ marifat al-us.u¯l al-shariyya marifat lisa¯n al-Arab . . .) (AQ I, pp. 274–5)

With regard to the abrogation, he states: Abrogation is the cancelling of a rule in law but not in reason because the necessities of the reason cannot be abrogated either by revelation or by law. ( fa-l-naskh huwa raf ma¯ thabata h.ukmuhu fı¯ l-shar du¯na l-aql li-anna wa¯jiba¯t al-uqu¯l la¯-yaju¯zu naskhuha¯ bi-l-shar wa-la¯ aql.) (AQ I, p. 333)

With regard to the khabar al-wa¯h.id, he states: In a case where the acceptance of the wa¯h.id is strong, then the majority opts for acting according to it as long as reason does not prevent it. (wa-idha¯ thabata qabu¯luha¯ min al-wa¯h.id wa l-jama¯a wajaba al-amal bima¯ tad.ammanaha¯ ma¯ lam yamna minhu al-aql.) (AQ I, p. 380)

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With regard to the transmission of the traditions he states that aql is the second condition for the transmitter after majority, followed by uprightness and trustworthiness, and he points to the fact that this reason must be ‘vigilant’ (mu¯qiz.), which he defines as a higher grade of reason than the normal reason needed for simple legal capacity (taklı¯f ) because it is related to awareness and caution and it enables one to distinguish between right and wrong so that his preference is correct (la¯ yaqtas.iru ala¯ l-aql lladhı¯ yataallaqu bihi altaklı¯f h.atta¯ yand.amma ilayhi al-tayaqquz. wa-l-tah.affuz. fa-yufarriqu bayn l-s.ah.¯ıh. wa l-fa¯sid li-yasih.h.a tamayyazuhu) (AQ I, p. 383).44 Furthermore al-Ma¯wardı¯ states, with regard to the Prophet’s actions (afa¯l) which are not connected to religious affairs (diya¯na¯t), such as eating, drinking, clothing, sleeping, etc., that these actions of the Prophet are allowed but are not obligatory, because they oscillate between ‘good’ (h.asan) and ‘allowed’ (ja¯iz), as the Prophet did not do anything that would be disgraceful according to reason or disapproved by revelation (li-anna al-afa¯l tataraddadu bayna l-h.asan wa l-ja¯iz wa-la¯ yafal ma¯ yuqabh.u fı¯ l-aql wa-yukrahu fı¯ l-shar) (AQ I, p. 427).

4.2.2. Ijtiha¯d One of the most difficult, multi-layered, and complex terms in Islamic jurisprudence is ijtiha¯d.45 It has been stated that al-Ma¯wardı¯ stressed the importance of ijtiha¯d,46 and this in a time in which, according to Schacht, the ‘door of ijtiha¯d’ had already been closed.47 In the early discussion in Islamic jurisprudence, ijtiha¯d meant the use of individual reasoning in cases where there was no text (or even 44

For al-A¯midı¯’s preference of the rational argument for ijma¯, see Weiss (1992),

196. 45 Schacht (2012b). Schneider (1990), 202–20, with regard to adab al-qa¯d.¯ı texts (including al-Ma¯wardı¯’s). For al-A¯midı¯’s concept of ijtiha¯d, see Weiss (1992), 683 ff. 46 Laoust (1968), 24: ‘Il est partisan des l’igˇtiha¯d qui suppose la connaissance des quatre sources fondamentales de la Loi: Le Coran et la Sunna, les opinions soutenues par les Anciens (Salaf) dans leur divergences et leurs convergences de manière a pouvoir dégager l’igˇma¯; enfin le maniement du raisonnement analogique (qiya¯s) qui permet de rattacher des cas non prévue à des principes bien établis.’ See also Schneider (1990), 205. 47 Schacht (1982), 69 ff. This position has been discussed critically and rejected in Watt (1974), and Hallaq (1984). Actually it has to be taken into consideration that the concept of ijtiha¯d is defined differently in the different schools of law and even by different authors in the same school of law.

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when there was a text) thereby using one’s own opinion (ijtiha¯d alray). It seems to have been considered as a basic legal principle. With the development of Islamic jurisprudence ijtiha¯d was restricted by consensus (ijma¯) and analogy (qiya¯s). Thus al-Sha¯fiı¯, al-Ma¯wardı¯’s master, opted against ijtiha¯d (although it seems he meant ijtiha¯d alray) and for analogy, basing legal rulings on a textual basis and on the basis of a clear methodology. Al-Ma¯wardı¯, when dealing with the principles of law, declares ijtiha¯d as one of the two preconditions of the analogy (qiya¯s). The second is istinba¯t., meaning derivation or deduction (AQ I, p. 488). He argues that ijtiha¯d is only possible where no consensus exists (AQ I, pp. 466, 481). He can thus be clearly seen in the Sha¯fiite tradition to restrict ijtiha¯d to the level of legal theory. He differentiates ijtiha¯d from qiya¯s thus: The difference between ijtiha¯d and qiya¯s is that ijtiha¯d is as we described the searching of the right by the way of indications leading to it, whereas the analogy is the comparison between the principle/root and the derivative/ branch in what they have in common with regard to the cause/ratio legis of the principle. And they differ in so far as the qiya¯s needs the ijtiha¯d but the ijtiha¯d does not need the qiya¯s . . . (wa l-farq bayna l-ijtiha¯d wa-l-qiya¯s anna l-ijtiha¯d huwa ma¯ was.afna¯hu min annahu t.alab al-s.awa¯b bi l-ima¯ra¯t al-da¯lla alayhi wa l-qiya¯s huwa al-jam bayna l-far wa-l-as.l li-shtira¯kihima¯ fı¯ illat al-as.l fa-ftaraqa¯ ghayr anna l-qiya¯s yaftariqu ila¯ jtiha¯d wa-qad la¯ yaftariqu l-ijtiha¯d ila¯ l-qiya¯s . . .) (AQ I, p. 490)

Thus ijtiha¯d as a principle not bound to the texts has clearly been restricted, but a closing of the door of ijtiha¯d cannot be taken from al-Ma¯wardı¯’s arguments.48 His last statement: ‘the ijtiha¯d does not need the qiya¯s’, underlines that ijtiha¯d has one or more other meanings in al-Ma¯wardı¯’s context, too. This is corroborated when al-Ma¯wardı¯ counts seven conditions for the judge; health, male gender, freedom, being a Muslim, integrity (ada¯la), knowing the rules of the law, and acting on the basis of the four principles of the law (AQ I, p. 618–43).49 Ijtiha¯d appears in several places. First of all the judge has to know the legal rulings, which includes knowledge of the principles as well as of the branches of law in which the ijma¯ has 48 For a discussion of the term ijtiha¯d in several legal texts, see Schneider (1990), 202–20. 49 For al-A¯midı¯’s definitions of the unrestricted and the restricted mujtahid, see Weiss (1992), 688.

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been concluded, or where different opinions exist, so that he can follow the consensus and ‘he can apply ijtiha¯d in the disagreement to become one of the people of ijtiha¯d in religion’ (AQ I, 636–7). If he does not belong to the ‘people of ijtiha¯d’, ‘it is not allowed to him to give an opinion and to make a judgment’ (AQ I, p. 637). Furthermore, the judge has to know the four principles of law (AQ I, p. 641). He discusses the acceptance of taqlı¯d (reliance on the teaching of a master) in special cases and votes against it. The jurist is not allowed to make taqlı¯d according to his school of law (AQ I, p. 636). AlMa¯wardı¯ states that, if the seven conditions mentioned are fulfilled, the judge has to rely on his ijtiha¯d (AQ I, p. 644). In his book on the ‘difference of opinions’ among the schools of law, Ibn Rushd states that the Sha¯fiı¯s want the judge to be a mujtahı¯d, that is, a person applying ijtiha¯d, whereas the H . anafı¯s do 50 not insist on this condition. Al-Ma¯wardı¯ here thus adheres to the Sha¯fiite position (AQ I, p. 644). This means that ijtiha¯d played an important role in al-Ma¯wardı¯’s concept of the judge, not only in legal theory, where it was, however, restricted to a precondition of the analogy, but also and especially in practice. I have argued elsewhere that this kind of ijtiha¯d can be understood as the ‘knowledge of the expert’––i.e. the judge––who of course had to be able to refer to ijtiha¯d in the specific situation of decision-finding.51 When discussing the shu¯ra¯ (consultation), which is rooted in the Qura¯n (42: 38), al-Ma¯wardı¯ states that the judge should have consultation with regard to his judgments (AQ I, pp. 260–1) and he goes on: This [consultation, I.S.] has to be dealt with from two points: First, open and clear, where agreement has been reached and consensus was found. There is no need for consultation in this. But second: in cases where there is no opinion to follow or where there is dissent among the scholars from the questions of ijtiha¯d. In these cases he must have consultation to find indication in what they say and mean concerning what may be hidden from him, so that he inquires in the way of ijtiha¯d and can make his judgment on the basis of his ijtiha¯d [but]without their ijtiha¯d. (AQ I, p. 261) The consultants, in case they oppose him with regard to his judgment, are not allowed to resist him in it and they cannot prevent him when it is justified by ijtiha¯d.

50

Ibn Rushd (1983), ii. 460.

51

See Schneider (2006), 69–73.

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(wa-laysa ala¯ ahl l-shu¯ra¯ idha¯ kha¯lafu¯hu fı¯ h.ukmihi an yua¯ridu¯hu fı¯hi wa-la¯ yamnau¯hu minhu idha¯ ka¯na mas.u¯ghan fı¯ l-ijtiha¯d ). (AQ I, p. 261)

Another situation in which ijtiha¯d plays an important role is the quashing of a judgment. This is only possible in cases where the judgment clearly violates the us.u¯l (principles of the law) but not if the judgment is based on ijtiha¯d.52 In theory, there is no system of appeal in Islamic law, but the judge following this judge in his office (chronologically) can in certain cases quash the judgments of his predecessor. This ‘ijtiha¯d of the expert’ or even ‘ijtiha¯d of the judge’ means that the judge has to know the principles of the law to be able to apply them. Al-Ma¯wardı¯ quotes Sha¯fiı¯, that taqlı¯d is not allowed to anyone after the Prophet and defines taqlı¯d as the ‘adoption of an opinion without indication’ (AQ I, p. 269). Taqlı¯d is only necessary in traditions and testimony and of the common people to the scholar as to what they know ( fa-amma¯ almamu¯r bihi fa-l-taqlı¯d fı¯ l-akhba¯r wa-l-shaha¯da wa-taqlı¯d al-a¯mmı¯ li-l-a¯lim fı¯ma¯ yakhtas.s.u bihi min al-ilm) (AQ I, p. 269), whereas it is not allowed in cases where knowledge is there, in judgments and legal opinions as traditions ( fa-amma¯ l-manhı¯ anhu fa-huwa altaqlı¯d fı¯ma¯ yataqiduhu ilma¯n aw- yaqd.¯ı bihi h.ukma¯n aw- yaftı¯ bihı¯ ikhba¯ran). (AQ I, p. 269) He goes on: If thus the invalidity of the taqlı¯d is clear, the approach to the principles of the revelation is established so that he [the scholar, I.S.] comes to the knowledge on the basis [of the principles, I.S.]. ( fa-idha¯ taqarrara fasa¯d al-taqlı¯d wajaba al-nazar fı¯ us.u¯l al-shar li-yas.ila ila¯ l-ilm bi-mu¯jibiha¯). (AQ I, p. 273)

In short, ijtiha¯d is the methodological tool on the basis of which the principles can be analysed and accommodated to the legal case the judge has to deal with. Using it leads to knowledge (ilm). To summarize, in Qura¯nic exegesis (AQ I, p. 269) as well as in judicial practice, ijtiha¯d has to be practised, taqlı¯d is only allowed with regard to the Prophet. The analysis of the mujmal verses can be through ijtiha¯d (AQ I, p. 294) or through sam (tradition) (AQ I, p. 297). Both terms, ijtiha¯d and sam, have to be seen in relation to each other. On the one hand, there is the ijtiha¯d on the basis of 52

AQ I, 682 ff., Schneider (1990), 225–7.

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independent reasoning but always based on texts and with the condition of reason (aql) and, on the other hand, there is knowledge on behalf of sam (tradition). However, whereas ijtiha¯d is the methodology to be followed and the aim is to understand the principles of law for practical purposes, the result of ijtiha¯d is knowledge (ilm).

4.2.3. Ilm Ilm means knowledge of God and of religion, the Prophet brought knowledge to the Arabs.53 For T.abarı¯, one of the most prolific commentators on the Qura¯n, ilm is always connected to the Prophet, his Companions and Followers. Only in the light of their opinions can the Qura¯n be interpreted.54 For al-Ma¯wardı¯, ilm can be said to have another meaning and is to be seen in close connection to ijtiha¯d. With regard to the mujmal verses, i.e. those verses that need explanation, al-Ma¯wardı¯ argues that those verses are meant as reward of scholars who possess ilm and as a reward for their individual efforts at interpretation (AQ I, p. 291).Thus the mujmal verses are seen as a challenge for the intellectual efforts of scholars. In another place, al-Ma¯wardı¯ states that proofs of reason dominate over the proofs of tradition and lead to knowledge evidence (AQ I, p. 275).

5. CONCLUSION The following questions were put forward at the beginning: 1. What methodological concepts does al-Ma¯wardı¯ consider necessary for an exegesis of the texts of the Qura¯n and Sunna? 2. What are the consequences of this approach for the application of the holy law to the conditions of human society? With regard to the first question, I have tried to show some special features of his arguments. Al-Ma¯wardı¯’s opinions demonstrate a 53 Lewis, Ménage, Pellat and Schacht (1971). For the development of the term ilm in connection with fiqh, see van Ess (1966), 13–22. 54 Goldziher (1952), 87 ff.; Gätje (1971), 51 ff.; McAuliffe (1988), 47 ff.; Forster (2001), 45 ff.

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consciousness of the difficulty of interpreting a holy text and applying it to a given situation, on the one hand, and a set of methodological instruments to analyse the text, on the other. He thus shows a high degree of epistemological consciousness as well as reflection on the technical approach to solving these epistemological questions.55 His approach surely can be seen in the frame of the exegetical literature and his discussions in theory of law and can be described as ‘traditional’ in so far as he takes the Qura¯n as the basis, and deals with the traditions (Sunna) in the second place, as he accepts cum grano salis the usual conditions for the validity of the Sunna based on an uninterrupted chain of transmitters etc. On the other hand, his aim to develop a rule-system that can be applied to a concrete legal case surely has to be called original. In comparison with the us.u¯lı¯s (scholars) dealing with the principles of law, who argue on a more theoretical level, and the interpreters of the Qura¯n, being concerned with the often more grammatical interpretation of every verse without connection to the legal system, al-Ma¯wardı¯’s approach is refreshingly practical. What makes his explanations interesting, as I have tried to show, is the consideration of the role of aql (reason)56 upon which one has to base his arguments by the use of ijtiha¯d (individual reasoning) to gain knowledge (ilm). Knowledge is for him surely not exclusively defined through tradition (naql). On the other hand, reason and the use of reason are limited, as there are verses in the Qura¯n and Sunna which cannot be understood by reason. These are the mujmal and the mutasha¯bih verses. If we take a closer look at these verses, however, the examples he gives seem to point to the fact that he considered those points not approachable by reason mostly as implementation regulations, such as the number of prayers etc. In his article, ‘Ratio und Überlieferung in der Erkenntnislehre alAsˇarı¯’s und al-Ma¯turı¯dı¯’s’, Rudolph compares the role of reason and tradition in the thinking of al-Asharı¯ (d. 324/935) and al-Ma¯turı¯dı¯ (d. 342/944). With regard to al-Asharı¯, he states that reason does not play a basic role with regard to ethics because man cannot recognize good and evil on the basis of his reason. Actions are good if God

For the similar approach of al-A¯midı¯, see Weiss (1992), 684. With regard to the relation between aql in the theology of al-I¯jı¯ in the eighth/ fourteenth century, see van Ess (1966), 406–17. 55 56

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commanded them and are bad if he prohibited them.57 Al-Ma¯turı¯dı¯, however, states that in cases where differing traditions exist, reason has to decide what is right and what is wrong.58 Thus al-Ma¯wardı¯’s position, according to which a special reason (aql mu¯qı¯z.) can distinguish between the right and the wrong (AQ I, p. 383),59 would be comparable to al-Ma¯turı¯dı¯’s position in this point. Furthermore al-Ma¯turı¯dı¯’s sharp critique of taqlı¯d 60 is a parallel to al-Ma¯wardı¯’s position, too (see AQ I, p. 269). With regard to the relation between reason and tradition, Rudolph states that for al-Ma¯turı¯dı¯ both sources are indispensable,61 that tradition is accepted in life as transmission of knowledge, and because it is acceptable and normal in daily life it has to be accepted even more for the religious life, because information here goes back to the most reliable person, the Prophet.62 Al-Ma¯wardı¯, on the contrary, introduces in his discussion the concept of ijtiha¯d, prohibiting the jurist and judge from relying on the statement of another jurist (AQ I, p. 261) for their legal practice. Thus, in this point, al-Ma¯wardı¯ differs from al-Ma¯turı¯dı¯. In his summary Rudolph tries to weigh up both concepts in alMa¯turı¯dı¯’s thinking––tradition and reason––and concludes that both ways of gaining knowledge remain equal in his works, are independent from each other, and are necessary to gain insights into questions of belief and action. Whenever possible, al-Ma¯turı¯dı¯ tried to use both sources of insight. However, he gave reason more scope, as did al-Asharı¯.63 With regard to al-Ma¯wardı¯ I would hesitate to put reason and tradition on the same level but would argue that reason in al-Ma¯wardı¯’s hermeneutical approach plays a more important role than tradition. Second, in al-Ma¯wardı¯’s approach both a textual and an intertextual level can be discerned. Thus the antonyms are thought to be applicable for the interpretation of both text corpora, Qura¯n and Sunna, and he discusses the case of differing or contradictory solutions in the different sources. Al-Ma¯wardı¯ is more cautious than other scholars of his school of law, stating that the Qura¯n cannot 57 Rudolph (1992), 76. On the other hand, Al-Asharı¯ seems––according to one source––to accept the existence of God on the basis of rational proof (Rudolph (1992), 76.). This central theological theme is, however, not dealt with by Al-Ma¯wardı¯ in the adab al-qa¯d.¯ı literature. 58 59 Rudolph (1992), 84. See earlier in this chapter. 60 61 Rudolph (1992), 79. Rudolph (1992), 82. 62 63 Rudolph (1992), 83. Rudolph (1992), 84–8.

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be abrogated by the Sunna, but the latter can contain special rulings which explain Qura¯nic rulings (AQ I, p. 443).64 Surely, ijma¯ can corroborate and serve as evidence for the correctness of the Sunna, and the tradition thus becomes certain, being uninterrupted transmission (mutawa¯tir), if it was not mutawa¯tir before (AQ I, p. 447). But we have to recall that Al-Ma¯wardı¯ argued that in cases where the consensus differs from the Sunna, then the Sunna is abrogated and its transmission is not ‘sound’ (s.ah.¯ıh.). In this case, the Sunna has to be dropped and action has to be on the basis of consensus (AQ I, p. 448). This intertextual approach shows that the hierarchy of the sources and especially the leading position of the Qura¯n as God’s word is not as uncontested as could be expected. It reveals that in cases of conflicting norms human reasoning played a decisive role in selecting the source by using an intertextual hermeneutic approach. Al-Ma¯wardı¯’s epistemological reflections thus can be summarized thus: 1. Aql/reason is the basis for knowledge (besides the Arabic language)––naql/tradition does play a role but this role can be said to be a subordinate one, as it only appears in verses or wordings of the Sunna that are mujmal and can be explained either by ijtiha¯d (i.e. using reason) or by going back to tradition (naql). However, mutasha¯bih verses cannot be understood by human reason. 2. An ijtiha¯d of the expert, a ‘practical’ ijtiha¯d, is necessary for human beings and especially jurists and judges for the exegesis of the holy texts. This is important, as this reasoning gives the jurist the unassailable flexibility to transport holy rulings into practical reality and into judgments. 3. Methods developed for the Qura¯n are applicable also for the Sunna. 4. An intertextual methodological approach is possible. 5. These methods and concepts can be seen as a restriction of the validity of the sources on the one hand and the hierarchy of the sources (with the Qura¯n on top) on the other, and allow a flexible interpretation by taking into consideration different sources. 64 Abrogation between texts, however, is possible in principle. For al-A¯midı¯ also, see Weiss (1992), 537. Weiss argues that the arguments for its possibility are essentially the same as those used to demonstrate the possibility of abrogation of rules found in Sunnaic texts by Qura¯nic texts. The two categories of texts, as repositories of revelation, are coequal such that abrogation may cross the line between them.

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With regard to the second question, on a more general level it can be stated that al-Ma¯wardı¯’s high esteem for reason (aql), his trust in human reasoning (ijtiha¯d ) to reach knowledge (ilm), and his intertextual hermeneutics bring enormous flexibility into the system and allow access to other sources in case one source does not give sufficient, clear information on how to apply the divine rulings. Al-Ma¯wardı¯ thus bridges the gap between the eternal and holy rules and the application in time and space to a great extent through man’s capacity to use his reason and to another point through flexibility to combine the different sources and not so much through pointing to the tradition. This analysis has had to be restricted to his approach and thus of course cannot be seen as paradigmatic for Islamic hermeneutics at a whole.65 And it has to be stated that always this approach remains subordinated to the revelation. As Weiss says: Muslims universally, whatever their view of the capacity of the human intellect to discern right from wrong, insisted upon the creature’s dependence upon special revelation for guidance. Among those inclined to affirm this human capacity, emphasis had to be placed on the fragility of the unaided intellect: the task of erecting an entire body of law capable of dealing with a seemingly infinite variety of human situations was too great for human beings to undertake without divine aid.66

Reason (aql) has been used by Mutazilit thinkers in their theological discussions, but always based on a theological world-view. They can only be seen as ‘rationalists’ in so far as they argued that man can make certain perceptions––even in the time before revelation––on the basis of reason.67 God has given men two things: reason and revelation. As both were given by God, revelation cannot contradict reason, it has to support what reason discerns.68 We can 65 Jackson (2002), 182–3, reconsiders the approach of so-called Critical Legal Studies (CLS) against legal formalism that confined the role of a judge or jurist to the simple deduction of the meanings of legal rules through the assiduous observation of the observable features of language and a mechanical procedure. The us.u¯l al-fiqh provide for him the parameters within which practical, religious, ideological, or other views can be validated as law (p. 200). 66 Weiss (1992), 743. 67 Gimaret (1992), 783 ff. He defines the Mutazilites as rationalists in that they consider a certain awareness accessible to man by means of his intelligence alone. But he states that in this point the Mutazilits do not differ fundamentally from other theological schools. He states that in fact the supporters of kala¯m should be termed as ‘rationalists’ in this sense. 68 Gimaret (1992), 783 ff.

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find the idea that reason and revelation do not contradict each other in al-Ma¯wardı¯’s text (AQ I, p. 275), but the implication according to which reason is prior to revelation cannot be found. Al-Ma¯wardı¯ argues that proofs of reason surpass proofs of tradition (AQ I, p. 275), that an explicit rule can be cancelled in revelation but not in reason (AQ I, p. 333). With this statement he points to the problem of the abrogation-rule in Islamic exegetical tradition: what had been revealed is existent, as a text, but has not to be followed any more. By this he acknowledges the fact that revelation is rooted in reality, in time and space. But he does not discuss this point further. Now can al-Ma¯wardı¯’s stressing of the role of reason and ijtiha¯d be seen as a proof of his belonging to the Mutazilites?69 As the Mutazilites as a politico-religious group were politically marginal by al-Ma¯wardı¯’s time, and anybody interested in good relations with the caliph had to keep a distance from them, it is difficult to imagine that al-Ma¯wardı¯ opted for them. Still al-Ma¯wardı¯ did not escape the suspicion of having belonged to this group. This is stated by later scholars as Ya¯qu ¯¯t (d. 626/1229)70 and by Ibn as.-S.ala¯h. (d. 651/1254).71 Whereas Ya¯qu ¯¯t argues that al-Ma¯wardı¯ was a Sha¯fiı¯ in positive law ( furu¯) and Mutazilit in the us.u¯l (whatever this would mean), Ibn al-S.ala¯h. claims to have checked Al-Ma¯wardı¯’s commentary of the Qura¯n72 and to have found this suspicion confirmed. Al-Ma¯wardı¯, he argues, does not express his opinion openly but tries to conceal his position. He would not confirm all Mutazilit positions, for instance, on the creation of the Qura¯n, but with regard to predestination (qadar) he shows himself to be a Mutazilit.73 It seems that ‘being a Mutazilit’ was a strong accusation to make and even a slander––for al-Ma¯wardı¯ in his own time it would have been the end of his political career––but at the same time it was a vague accusation. Being a Mutazilit could be and was connected to one or more concepts of this group of religious-political scholars. Nevertheless, modern research has also succumbed to the temptation to discuss al-Ma¯wardı¯’s alleged relation to the Mutazilits.74 Mikhail, 69 Gimaret (1992) would see al-Ma¯wardı¯’s position in accordance with the position of the scholars of kala¯m. 70 Ya¯qu ¯¯t b. Abdalla¯h al-Ru ¯¯mı¯ (1910, 1911), v. 407. 71 al-Subkı¯ (1964–71), iii. 303; Sh. al-Dhahabı¯ (1983–6), xviii. 64–5. 72 Ma¯wardı¯, Abu ¯¯ l-H . asan Alı¯, al- (1992). 73 For this see Schneider (2006), 73–4. 74 For examples, see Schneider (2006), 74–5.

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however, considers him to be an ‘independent thinker’, who refused to follow blindly any one theological sect.75 This could be well be an appropriate assessment of al-Ma¯wardı¯’s opus. And surely the use of reason and the instrument of ijtiha¯d, the ability to distinguish between right and wrong, cannot be seen as proof of belonging to this group. It seems more reasonable to identify particular concepts and arguments that were discussed by the Mutazilits, some of which survived in different contexts in the discourses of later scholars in theology as well as law.76 Ijtiha¯d and aql should be seen as two main conditions closely connected and of indispensable necessity––but always to be weighed against the tradition––for the application of rulings of the holy texts to an ever-changing reality. In this context al-Ma¯wardı¯ could be called a ‘rationalist’, opting for a greater influence for reason and a lesser for tradition. I would argue on the basis of the analysis of his legal hermeneutics in another way: that his scientific position, with a clear stress on the important role of rationality, can especially be seen in his works on law and legal theory (al-h.a¯wı¯ al-kabı¯r; adab al-qa¯d.¯ı) but less in his work on public law (al-ah.ka¯m al-sult.a¯niyya) because it played no role in it. I would prefer to see here the reflection of a special discourse in this legal literature, which was much more concerned with rationality and its practical use and necessity, than the political discourse that is the basis of his book on public law.77 This hypothesis would mean that, more generally, the different genres of Arabic literature, which have not yet been analysed sufficiently in their interdependence, perhaps reflect different levels or different kinds of intellectual discourses that might sometimes be quite independent from each other.78 Be that as it may, al-Ma¯wardı¯’s exegetical approach remains interesting and al-Ma¯wardı¯ a person who is well known and yet obscure at the same time, and who demands further research.

75

Mikhail (1995), 17. Gimaret (1992). Schneider (2006), 78. 78 With regard to the emergence of Islamic legal literature, I have tried to show that some early discourses (I took the example of the status of freedom and enslavement of Muslims) did not find their way into the canonical literature of fiqh, but were somehow edged out. However, they persisted in other genres of literature. Thus the example of the Prophet having sold a free person for his debts was not accepted in the six canonical Sunnı¯ h.adı¯th works but was transported, for example, into tafsı¯r literature, see Schneider (1999), 262–78, 356. 76 77

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REFERENCES Brockelmann, C. (2012), Art. ‘Al-Ma¯wardı¯’, Encyclopaedia of Islam (2nd edn.; Brill: Leiden); , accessed Feb. 2013. Dhahabı¯, Sh. al- (1983–6), Siyar ala¯m al-nubala¯. Sh. al-Arnau ¯¯t. (ed.), (23 vols.; 2nd edn.; Beirut: Mat.baa Zayd b. Thabti). Gimaret, D. (2012), ‘Mutazila’, Encyclopaedia of Islam (2nd edn.; Brill: Leiden); , accessed Feb. 2013. —— (1994), Une lecture Mutazilite du Coran (Leuven: Peeters). Goldfeld, Y. (1988), ‘The Development of Theory on Qura¯nic Exegesis in Islamic Scholarship’, StIsl 67: 5–27. Hallaq, W. (1984), ‘Was the Gate of Ijtihad Closed?’, IJMES 16: 3–41. —— (1986), ‘On the Origins of the Controversy about the Existence of Mujtahids and the gate of Ijtiha¯d, StIsl 63: 129–41. —— (2002), ‘Takhrı¯j and the Construction of Juristic Authority’, in B. Weiss (ed.), Studies in Islamic Legal Theory (Leiden: Brill), 317–35. Kinberg, L. (1988), ‘Muh.kama¯t and Mutasha¯biha¯t (Koran 3/7): Implication of a Koranic Pair of Terms in Medieval Exegesis’, Arabica 35: 143–72. Laoust, H. (1968), ‘La Pensée et l’action politiques d’al-Ma¯wardı¯ (364–450/ 974–1058)’, REI 36: 11–92. Lowry, J. (2002), ‘Does Sha¯fiı¯ have a Theory of Four Sources of Law?’, in B. Weiss (ed.), Studies in Islamic Legal Theory (Leiden: Brill), 23–50. Makdisi, G. (1984), ‘The Juridical Theology of Sha¯fiı¯. Origins and Significance of u¯s.u¯l al-Fiqh’, StIsl 59: 5–47. —— (1997) Ibn Aqı¯l: Religion and Culture in Classical Islam (Edinburgh: Edinburgh University Press). Ma¯wardı¯, Abu ¯¯ l-H . asan Alı¯, al- (1960), Al-ah.ka¯m al- sult.a¯niyya (n.p.). —— (1971), Adab al-qa¯d.¯ı, ed. M. H. al-Sirh.a¯n (2 vols.; Bagdhad: Ria¯sat Dı¯wa¯n al-Awqa¯f). —— (1992), Al-nukat wa-l-uyu¯n Tafsı¯r al-Qura¯n, ed. As-Sayyid b. Abdarrah.¯ım (6 vols.; Beirut, Da¯r al-Kutub al-Ilmiyya). —— (1994), Al-H ¯¯d and A. A. Mua¯wad . a¯wı¯ al-kabı¯r, ed. A. A. Abdalmawju (18 vols.; Beirut: Da¯r al-Fikr). Mikhail, H. (1995), Politics and Revelation: Al-Ma¯wardı¯ and After (Edinburgh: Edinburgh University Press). Nagel, T. (1981), Staat und Glaubensgemeinschaft im Islam (2 vols.; Zurich: Artemis). —— (1988), Die Festung des Glaubens: Triumph und Scheitern des islamischen Rationalismus im 11. Jahrhundert (Munich: C. H. Beck).

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Neuwirth, A. (1987), ‘Koran’, in H. Gätje (ed.), Grundriss der arabischen Philologie, ii. Literaturwissenschaft (Wiesbaden: Reichert), 96–135. Powers, D. (1988), ‘The Exegetical Genre na¯sikh al-Qura¯n wa mansu ¯¯khuhu’ in A. Rippin (ed.), Approaches to the History of the Interpretation of the Quran (Oxford: Clarendon), 117–38. Schacht, J. (1979), The Origins of Muhammadan Jurisprudence (Oxford: Clarendon). —— (1982), An Introduction to Islamic Law (Oxford: Clarendon) —— (2012a), ‘Iba¯h.a’, Encyclopaedia of Islam (2nd edn.; Brill: Leiden; . —— (2012b) ‘Idjtiha¯d’, Encyclopaedia of Islam (2nd edn.; Brill: Leiden);