The Body as Property: Physical Disfigurement in Biblical Law 9780567659057, 9780567253934, 9780567665133

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This volume is dedicated in loving memory of another undeserved blessing, my still deeply missed friend, Suzanne Frances Weinstein— ċĒğĈē ċėČğĒč.

ACKNOWLEDGMENTS I wish to thank my supervisor Professor Bernard Jackson, together with my doctoral examiners, Adrian Curtis and Mark Geller. Alongside their guidance, I am indebted further to both Frances Reynolds and Frans van Koppen for introducing me to the incredible richness of cuneiform culture: its illumination of the more remote biblical memories has enhanced my research. The encouragement of scholars from the Society for Old Testament Study is also genuinely appreciated: Margaret Barker, Hans Barstad, George Brooke, Martin Goodman, Charlotte Hempel, Walter Houston, Heather McKay, Alan Millard, Deborah Rooke, Joan Taylor, Hugh Williamson and Nick Wyatt each deserve mention, as do Joel Kaminsky (Boston), Diana Lipton (Tel Aviv), David Milson (Switzerland) and Bill Morrow (Canada). The support of good friends includes Ann Conway-Jones, Christina Maria Egan, Mariana Giovina, Elizabeth Harper, Simon Hildebrand, Hermann Hirschberger, Shula Medalie, Helen Jacobus, Shani (Berrin) Tzoref and Viv Waters. Nor can I fail to mention my fellow Akkadian students, who accompanied me during those ¿ve challenging years, especially at our summer Akkadian reading group meetings at Fran Hazleton’s. Lastly, and by no means least: nothing could have been achieved without the loving tenderness and patience of my husband and children.

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ABBREVIATIONS AASOR AB ABD ADD AF AfO AHw AJS ALCBH ANET AOAT ARE ARU AS ASOR AuOr b. BA BAR BAS BASOR BDB BEATAJ BHS BibInt BibOr BICS BO BRev

Annual of the American School of Oriental Research Anchor Bible Anchor Bible Dictionary (ed. D. N. Freedman; 6 vols.; New York, 1992) Assyrian Deeds and Documents (C. H. W. Johns; 4 vols.; Cambridge, 1898–1923) Altorientalische Forschungen Archiv für Orientforschung Akkadisches Handwörterbuch (W. von Soden; 3 vols.; Wiesbaden, 1965– 81) Association for Jewish Studies An Akkadian Lexical Companion for Biblical Hebrew (H. Y. Tawil; New Jersey, 2009) Ancient Near Eastern Texts Relating to the Old Testament (ed. J. B. Pritchard; Foreword by D. Fleming; Oxford, 2011) Alter Orient und Altes Testament Ancient Records of Egypt. Vol. 2, The Eighteenth Dynasty (J. H. Breasted; Urbana, 1906) Assyrische Rechtsurkunden (ed. J. Kohler and A. Ungnad; Leipzig, 1913) Acta Sumerologica American School of Oriental Research Aula Orientalis Babylonian Talmud Biblical Archaeologist Biblical Archaeology Review Biblical Archaeological Society Bulletin of the American School of Oriental Research Brown, F., S. R. Driver and C. A. Briggs. The Brown–Driver–Briggs Hebrew and English Lexicon of the Old Testament (Massachusetts, 2000) Beiträge zur Erforschung des Alten Testaments und des antiken Judentums Biblia Hebraica Stuttgartensia (ed. K. Elliger and W. Rudolph; Stuttgart, 1997) Biblical Interpretation Bibliotheca Orientalis Bulletin of the Institute of Classical Studies Bibliotheca orientalis Bible Review

xiv BRM BSOAS BZAW CAD CBQ CBS CDA CHANE ErIsr FAT HAR HBV HL HO HSM HTR HUCA IEJ ILR JAAR JAJ JANER JANES JAOS JBL JBQ JCS JEOL JESHO JHS JHSx JJS JNES JNSL JPOS JQR JR JRS JS JSIJ JSJ 1

Abbreviations Babylonian Records in the Library of J. Pierpont Morgan (ed. A. T. Clay; New York, 1914) Bulletin of the School of Oriental and African Studies Beihefte zur Zeitschrift für die alttestamentliche Wissenschaft The Assyrian Dictionary of the Oriental Institute of the University of Chicago (ed. I. J. Gelb et al.; Glückstadt and Illinois, 1956–2011) Catholic Biblical Quarterly Tablets in the Collections of the University Museum of the University of Pennsylvania, Philadelphia. A Concise Dictionary of Akkadian: Second Correct Printing (ed. J. Black, A. George and N. J. Postgate; Wiesbaden, 2000) Culture and History of the Ancient Near East Eretz Israel: Archaeological, Historical and Geographical Studies Forschungen zum Alten Testament Hebrew Annual Review Hebrew Bible Versions Hittite Laws Handbuch der Orientalistik Harvard Semitic Monographs Harvard Theological Review Hebrew Union College Annual Israel Exploration Journal Israel Law Review Journal of the American Academy of Religion Journal of Ancient Judaism Journal of Ancient Near Eastern Religion Journal of the Ancient Near Eastern Society Journal of the American Oriental Society Journal of Biblical Literature Jewish Bible Quarterly Journal of Cuneiform Studies Jaarbericht Ex Oriente Lux Journal of the Economic and Social History of the Orient Journal of Hebrew Scriptures Journal of the History of Sexuality Journal of Jewish Studies Journal of Near Eastern Studies Journal of Northwest Semitic Languages Journal of the Palestine Oriental Society Jewish Quarterly Review Journal of Religion Journal of Roman Studies Journal of Sexuality Jewish Studies: An Internet Journal, http://www.biu.ac.il/js/JSIJ/ about.htm Journal for the Study of Judaism

Abbreviations JSJSup JSOT JSOTSup JSP JS JSQ JSS JTS KAR KTU

LCMA LE LH LHBOTS LKA LL LU LXX

M MAL MT

ND NJPS NRSV

NTS OBO OIP OIS PPA RA RB REN RIDA RIMA RQ SAAB SAAS

xv

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 for the Study of Pseudepigrapha Journal for Semitics Jewish Studies Quarterly Journal of Semitic Studies Journal of Theological Studies Keilschrifttexte aus Assur religi٠sen Inhalts (ed. E. Ebeling; Leipzig, 1919–23) Cuneiform Alphabetic Texts from Ugarit, Ras Ibn Hani and Other Places (ed. M. Dietrich, O. Loretz and J. Sanmartín; Abhandlungen zur Literatur Alt – Syrien – Palästinas und Mesopotamiens 8. Münster, 1995) Law Collections from Mesopotamia and Asia Minor (M. T. Roth; SBL Writings from the Ancient World 6; 2d ed.; Atlanta, 1997) Laws of Eshnunna Laws of Hammurabi Library of the Hebrew Bible/Old Testament Series Literarische Keilschrifttexte aus Assur (ed. E. Ebeling; Berlin, 1953) Laws of Lipit-Ishtar Laws of Ur-Namma The Septuagint The Mishnah Middle Assyrian Laws The Masoretic Text Tablets excavated at ancient Kalhu (Nimrud) JPS Hebrew–English Tanakh: The Traditional Hebrew Text and the New JPS Translation (2d ed.; Philadelphia, 1999) The Holy Bible Containing the Old and New Testaments with the Apocryphal/Deuterocanonical Books: New Revised Standard Edition (Oxford, 1995) New Testament Studies Orbis biblicus et orientalis Oriental Institute Publications Oriental Institute Seminars The Governor’s Palace Archive (ed. J. N. Postgate; Hertford, 1973) Revue d’Assyriologie Revue Biblique Records from Erech: From the Time of Nabonidus (ed. R. P. Doughtery; New Haven, 1920) Revue internationale des droits de l’antiquité The Royal Inscriptions of Mesopotamia, Assyrian Periods, I–III (Toronto: Toronto University Press, 1987–96) Revue de Qumrân State Archives of Assyria Bulletin State Archives of Assyria Studies

xvi SBL ScrHier SEL SJLA SP SS1 STJD t. TAD TDOT TO TSAJ TZ UF VT VTSup WDSP WUNT y. YBT YOS ZA ZABR ZAW

Abbreviations Society of Biblical Literature Scripta hierosymitana Studi Epigra¿ci e Linguistici sul Vicino Oriente Antico Studies in Judaism in Late Antiquity Sumerian Proverbs Textbook of Syrian Semitic Inscriptions. Vol. 1, Hebrew and Moabite Inscriptions (J. C. L. Gibson; Oxford, 1971) Studies on the Texts of the Desert of Judah Tosefta Porten, B., and A. Yardeni. The Textbook of Aramaic Documents from Ancient Egypt (4 vols.; Jerusalem, 1986–99) Theological Dictionary of the Old Testament: Volumes I–XVIII (ed. J. Botterweck, G. Ringgren and H. J. Fabry; Grand Rapids, 1974–2006) Targum Onqelos Texts and Studies in Ancient Judaism Theologische Zeitschrift Ugarit-Forschungen Vetus Testamentum Supplement to Vetus Testamentum Wadi Daliyeh Samaritan Papyri Wissenschaftliche Verऺffentlichungen der deutschen Orientgesellschaft Jerusalem Talmud Yale Oriental Series: Babylonian Texts, vols. 1–5 Yale Oriental Series Texts Zeitschrift für Assyriologie Zeitschrift für altorientalische und biblische Rechtsgeschichte Zeitschrift für die alttestamentliche Wissenschaft

Citations of the Hebrew Bible are from the NJPS (1999) and of the New Testament, from the NRSV (1995) unless otherwise stated. Hebrew texts are not transliterated, other than when quoting from authors who have provided a transliteration of their own. The abbreviations of the Sumerian and Akkadian codes follow Martha Roth’s Law Collections from Mesopotamia and Asia Minor (SBL Writings from the Ancient World 6; 2d ed.; Atlanta, 1997), hereafter LCMA. Transcription and translation of the laws of Ur-Nammu, Lipit-Ishtar, Eshnunna and Hammurabi are taken from this edition, whereas those from the Middle Assyrian Code are from Godfrey R. Driver and John C. Miles, The Assyrian Laws (Ancient Codes and Laws of the Near East 2; Oxford, 1935). Cuneiform scripts are transcribed with Akkadian signs written in lower-case italics, determinatives in superscript, logograms and Sumerian signs in Roman capital letters. All other abbreviations conform to the SBL Handbook of Style.

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Chapter 1

INTRODUCTION

1.1. The Research Context and Questions The body, as an object of desire, signi¿es far more than its ability to provide or respond to sexual stimuli: “if the human being’s body is its own ready-made canvas, it is also its most readily accessible altar or temple.”1 In biblical memory “the body as raw material—as clay to be moulded and a surface to draw on,”2 is likewise depicted in concrete terms,3 raising substantial challenges, among others: what meanings were inscribed upon the male and female biblical “canvas?” And how were these represented in Pentateuchal law? Such questions are complicated by the statement that man was created “in the image of God,”4 yet in the unfolding epic, laws that modify the 1. W. R. La Fleur, “Body,” in Critical Terms for Religious Studies (ed. M. C. Taylor; Chicago: University of Chicago Press, 1998), 36–54 (37). 2. P. Falk, “Written in the Flesh,” Body and Society 1 (1995): 95–105 (99). 3. As in Job’s description (10:9–10), “Consider that you fashioned me like clay; will you then turn me back into dust?” This recurring image of human substance, “like clay in the hands of the potter” (Jer 18:6; cf. Isa 29:16, Ben Sira 33:13 and Rom 9:19–21), recalls the creation of humans, moulded from clay, depicted earlier in Atra¨sis and Enuma Eliš. See B. R. Foster, Before the Muses: An Anthology of Akkadian Literature. Vol. 1, Archaic, Classical, Mature (2d ed.; Bethesda: CDL, 1996), 160–202 and 350–401. 4. ĔĐċēć ĔēĝĈ in Gen 1:27 and similarly 2 Cor 4:4 and Heb 1:3, where this image implies the human potential for perfection in the subsequent reception of Judeo-Christian tradition: a development not consistent with its earlier use in Mesopotamian culture where (for example) Ñalam dMarduk, “the image of the god Marduk,” and Ñalam dNergal, “the image of the god Nergal,” represented the presence of the god in his temple. See Moshe Weinfeld’s discussion, “The Image of God,” in The Place of the Law in the Religion of Ancient Israel (VTSup 100; Leiden: Brill, 2004), 106–9 (107); V. A. Hurowitz, “The Divinity of Mankind in the Bible and the Ancient Near East: A New Mesopotamian Parallel,” in Mishneh Todah: Studies in Deuteronomy and Its Cultural Environment in Honor of Jeffrey H. Tigay (ed. N.S. Fox, D. A. Gilat-Gilad and M. J. Williams; Winona Lake: Eisenbrauns,

2

The Body as Property

physical human form (such as circumcision and ear piercing) are prescribed.5 These dis¿gurements can be rationalized largely in anthropological terms,6 where the human body functions as a model for the body politic,7 and where the designated ritual concerns are then mapped onto the individual in society, as Mary Douglas explains: “…ideas about separating, purifying, demarcating and punishing transgressions have as their main function to impose system on inherently untidy experience. It is only by exaggerating the difference between within and without, about and below, male and female, with and against, that a semblance of order is created.”8 Yet if Douglas is correct, what “semblance of order” was then created by the biblical dis¿gurements? And what factors in the “speci¿c cultural moment”9 necessitated modi¿cation of the human form in biblical law? 2009), 263–74, and T. Ornan, “In the Likeness of Man: ReÀections on the Anthropocentric Perception of the Divine in Mesopotamian Art,” in What Is a God? Anthropomorphic and Non-anthropomorphic Aspects of Deity in Ancient Mesopotamia (ed. B. N. Porter; Winona Lake: Casco Bay Assyriological Institute, 2009), 93–151. 5. Gen. Rab. 11:6 reads: “Everything that was created during the seven days of creation requires further preparation (for completion): For example, mustard needs sweetening, lupines require sweetening, wheat needs grinding, even man requires repair” (ĞČġĕē đĐğĝ ēĊğĎċ ĖČĉĒ ċĐĠę ĖĐĒĐğĝ ġĐĠćğĈ ĐĕĐ ġĠĠĈ ćğĈėĠ ċĕ ēĒ ĖČĞġ đĐğĝ ĔĊć Čēěć ĖĎďċē ĖĐĒĐğĝ ĖĐďĎċ ĞČġĕē đĐğĝ ĔĐĘČĕğČġċ). 6. This convergence of anthropological theory with biblical representation is not inappropriate, given that ancient Israelite and Judean memories developed in the broader framework of Mesopotamian culture, where the focus of Babylonian science, medicine and divination was centred on the body, as Z. Bahrani observes: “For the Mesopotamians, the essential nature of the organic body was that it was laden with signs; as a signi¿er, it not only assumed the signi¿ed identity but also became the locus of production of signs that were relevant to the world beyond the body,” Z. Bahrani, Rituals of War: The Body and Violence in Mesopotamia (New York: Zone, 2008), 75. 7. As recognised also in contemporary cognitive behavioural theory, where George Lakoff and Mark Johnson suggest that all language and experience is ultimately bodily based: “The mind is not merely embodied, but embodied in such a way that our conceptual systems draw largely upon the commonalities of our bodies and of the environments we live in,” George Lakoff and Mark Johnson, Philosophy in the Flesh: The Embodied Mind and Its Challenge to Western Thought (New York: Basic, 1999), 6. 8. M. Douglas, Purity and Danger: An Analysis of Concepts of Pollution and Taboo (London: Routledge & Kegan Paul, 1966; repr. London: Routledge Classics, 2006), 5. 9. As Susie Orbach argues: “That bodies are and always have been shaped according to a speci¿c cultural moment. There has never been a ‘natural’ body: a 1

1. Introduction

3

In order to approach these questions systematically, this study will examine prescriptive dis¿gurements in biblical law, including circumcision (Gen 17:9–14, 23–27) and ear piercing (Exod 21:6 and Deut 15:16), together with the markings of divine obedience (Isa 44:5 and Ezek 9:4–6), where permanent alteration of the human body is indicated.10 These traditions (both individually and collectively) bear witness to the importance of “proprietary entitlement,”11 in biblical sources: a critical feature also in the discipline of evolutionary psychology, explained here by Margo Wilson and Martin Daly: “Socially recognised property rights have several components. Full property entitlements include the right to sell, exchange, or dispose of one’s property, to interference, and to demand redress for the theft or damage of it.12 People claim these entitlements with respect to inanimate objects (whether moveable or not)— land, crops, livestock, and even such intangibles as investment opportunities and ideas. They have claimed the same entitlements with respect to “their” slaves,13 household servants and children;14 and men, but not women,15 have regularly asserted claims with respect to spouses.”16 time when bodies were untainted by cultural practices,” Susie Orbach (Bodies (London: Pro¿le, 2010), 134. 10. Issues relating to physical disability and the prohibition of tattooing (Lev 19:27–28) are not explored in this study. Decapitation is also excluded from the discussion of post-mortem retributive mutilations. 11. M. Wilson and M. Daly, “The Man Who Mistook His Wife for a Chattel,” in The Adapted Mind: Evolutionary Psychology and The Generation of Culture (ed. J. H. Barkow, L. Cosmides and J. Tooby; New York: Oxford University Press, 1992), 289–322 (289). 12. Relevant examples of biblical redress for damage will be provided in the subsequent analysis in Chapter 3, “Talion in Biblical Law and Narrative.” 13. As Raymond Westbrook clari¿es: “In the legal systems of the ancient Near East, the female slave, no less than her male counterpart, was property. The special features of her gender were property interests of her owner, to be exploited or disposed of as the owner saw ¿t. Thus the owner’s interest in her sexuality was protected against interference by outsiders through the rules of property law, just as the integrity of any asset might be protected. By the same token, offspring of the slave, even when fathered by the owner, were in principle subject to the rules of property law, like the fruits of any asset,” Raymond Westbrook, “The Female Slave,” in Gender and Law in the Hebrew Bible and the Ancient Near East (ed. T. Frymer-Kensky, B. Levinson and V. Mathews; Shef¿eld: Shef¿eld Academic), 214–38 (237). 14. As exempli¿ed in Judg 1:12–16: “ ‘And Caleb announced: I will give my daughter Achsah in marriage to the man who attacks and captures Kiriath-sepher’. His younger kinsmen, Othniel the Kennite, captured it; and Caleb gave him his daughter Achsah in marriage. When she came [to him], she induced him to ask her father for some property. She dismounted from her donkey, and Caleb asked her, 1

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The Body as Property

In addition, a separate evaluation of punitive dis¿gurements will focus upon the law of talion (Exod 21:22–25; Lev 24:18–20; Deut 19:21) and the requirement of corporal punishment (Deut 25:11–12). This evaluation of both prescriptive dis¿gurements and corporal punishments is intended to inform these two issues: 1. Are any general principles regarding human dis¿gurement evident in biblical law? 2. Is the mutilation of women unique to biblical tradition or a subsequent adaptation of normative ancient convention? The context of these questions is located within the ancient Western Semitic environment of the biblical scribes, where Akkadian was the international language of the second and ¿rst millennia BCE, until its subsequent replacement by Aramaic. Accordingly, Mark Geller explains: “The idea of Lingua Franca is crucial for comprehending how knowledge spread throughout the Ancient Near East, since lingua franca describes the complex network of highways and routes which bear the intellectual product of globalisation from one region to another.”17 Without overstating the impact of cuneiform culture, there is no evidence for the use of Akkadian in ancient Israel, Judah, the coast and Transjordan from 1150 until 750 BCE,18 even though the script was used for a few local transactions (in Gezer and Samaria, among others),19 nor is it evident that ‘What is the matter?’ She replied, ‘Give me a present, for you have given me away as Negeb-land; give me springs of water.’ And Caleb gave her Upper and Lower Gulloth.” 15. “The reciprocal juridical expressions ‘give a wife’ (natan liššah) and ‘take a wife’ (laqa­ liššah), corresponding to the Babylonian martam ana aššutim nadanu and aššatam a¨azu respectively, clearly de¿ne the woman as being an object, rather than subject, of the marriage agreement,” É. Levine, “Biblical Women’s Marital Rights,” Proceedings of the American Academy for Jewish Research 63 (1997– 2001): 87–135 (90). 16. Wilson and Daly, “The Man Who Mistook,” 289. 17. M. J. Geller, “Writing and Alphabet,” New Bulgarian University. N.p. Cited 28 July 2009. Online: http://www.nbu.bg/index.php?l=1000&lang=1. 18. The cuneiform tablets from el-Amarna (the site of Akhenaten’s capital Akhetaten), although written in Akkadian by Canaanite scribes are dated to the reigns of Amenhotep III (1402–1364) and Akhenaten (Amenhotep IV, 1350–1334). 19. See B. Becking, “The Two Neo-Assyrian Documents from Gezer in their Historical Context,” JEOL 27 (1981–82): 76–89; W. Horowitz and T. Oshima, Cuneiform in Canaan: Cuneiform Sources from the Land of Israel in Ancient Times (Jerusalem: Israel Exploration Society and the Hebrew University of Jerusalem, 2006); and, more recently, W. Horowitz, T. Oshima and F. Vukosavoiü, “Hazor 18: Fragments of a Cuneiform Law Collection from Hazor,” IEJ 62, no. 2 (2012): 158–76. 1

1. Introduction

5

Assyria imposed her language on her conquered kingdoms.20 Nevertheless, the biblical memories still preserve (occasionally striking) reÀections of Mesopotamian cosmology, particularly relating to representations of the body, as Zainab Bahrani explains: In Assyro-Babylonian thought, a physical body is inscribed, as in a text, with signs from the gods. All bodies—not just the royal body—are therefore encoded by the gods.21 But the king’s body bears the omens of kingship. The king’s image could thus be encoded not just in a metaphorical or allegorical way, recalling literary descriptions of the ideal ruler. Physical signs could be read as the divine destiny of kingship, literally written onto the body text. Destiny was inscribed into the world;22 this should be understood not in the ¿gurative sense of an inscription, but as a literal translation of the Akkadian word, šaÓƗru, to inscribe,23 a verb used in describing all the omens as they appear in the natural world, including those written into the body.24

No assumptions regarding the implementation of any of the physical dis¿gurements can be made, nor is this study dependent upon any dating or historical reconstruction of the critical biblical sources. The next step, therefore, is to clarify my approach to comparative law, and to explain also why it is best suited to answering these questions. 20. My further thanks here to Professor Alan Millard for responding to an earlier draft of this chapter, where he reminded me (in a personal communication) also that “Egypt’s inÀuence was also very strong and should not be overlooked.” 21. Recalling also Elaine Scarry’s theory of divine embodiment, where “it is in the body that God’s presence is recorded,” in The Body in Pain: The Making and Unmaking of the World (New York: Oxford University Press, 1985), 204. 22. S. M. Paul, “Heavenly Tablets and the Book of Life,” JANES 5 (1975): 345– 53 (345), states: “Divine bookkeeping also began in Sumer. This well-known and intriguing belief in the existence of heavenly tablets upon which were recorded the deeds and destiny of individuals as well as nations can be traced from Sumerian to Talmudic times.” See also A. R. George, “Sennacherib and the Tablet of Destinies,” Iraq 48 (1986): 133–46. 23. While it is not appropriate to make any direct comparisons between the Akkadian šaÓƗru and ğďĠ known from both biblical (Deut 16:18) and rabbinic (m. Qid. 1:1–3) literature—given their separate applications and derivatives—this study will, however, support association of the biblical parallels with the Neo-Babylonian term, rittu šaÓƗru, where “the placing of an incised or branded mark upon a slave or devotee’s hand could well be expressed by the verb šaÓƗru = ‘to write’ in view of the nature of cuneiform script,” R. P. Dougherty, The Shirkûtu of Babylonian Deities (New Haven: Yale University Press, 1923), 82. See also M. J. Geller, “The InÀuence of Ancient Mesopotamia on Early Judaism,” in Civilisations of the Ancient Near East, vol. 1 (ed. J. Sasson; New York: Scribner, 1995), 43–55 (45). 24. Bahrani, Rituals of War, 98–99. See also S. Parpola, “Sons of God: The Ideology of Assyrian Kingship,” Archaeology Odyssey 2, no. 5 (1999): 6–27. 1

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The Body as Property

1.2. Methodological Pre-Requisites It is accepted that the ¿nal redaction of the Pentateuch did not occur prior to the ¿fth century BCE, during the Persian period. As Peter Machinist explains, As a moment’s reÀection will make plain, the very process of selection and refraction that produced the Bible—which we otherwise label the process of editing and canonization—was an effort in discerning cultural traits and con¿gurations, at putting together an integrated world-view, or what turns out, really, to be a series of overlapping world views. This effort moreover, was no mere antiquarian enterprise. It was part, rather, of a wider struggle to articulate and propagate national-cultural identity during such a period when such identity was threatened with major change, and even extinction.25

In attempting to isolate this largely untraceable, “series of overlapping world views,” Hugh Williamson observes that “in terms of historical method, the important question is not the date of the latest possible element in a given text, but rather the antiquity, extent and historical value of any earlier material, which may have been included within it.”26 Given that the scribal practices represented in the Masoretic Text were neither static nor uniform in antiquity, as the diversity of biblical variants in the Dead Sea Scrolls attests,27 this approach is particularly constructive when examining biblical law. Yet this alone does little to resolve the intractable question of statutory force: To what extent were the biblical laws enforced or applied in either the late Bronze or early Iron Age Israel and Judah? And to what extent did these requirements represent normative tradition? Here the dif¿culties arise primarily from the absence of extra-biblical evidence, but also from the fact that the formally canonized traditions frequently contradict what is often deemed as “popular” religious practice,28 and where some 25. P. Machinist, “The Question of Distinctiveness in Ancient Israel,” in Ah Assyria: Studies in Assyrian History and Ancient Near Eastern Historiography Presented to Hayim Tadmor (ed. M. Cogan and I. Eph’al; ScrHier 23; Jerusalem: Magnes, 1991), 196–212 (201–202). See also M. Liverani, Israel’s History and the History of Israel (trans. C. Peri and P. R. Davies; London: Equinox, 2007), xv–xvii. 26. H. G. M. Williamson, Review of L. L. Grabbe, ed., Did Moses Speak Attic? Jewish Historiography and Scripture in the Hellenistic Period, BibInt 12 (2004): 334–36 (336). 27. This is even if many of these variations can be viewed as secondary, having derived from a proto-Masoretic type of text. 28. See F. Stavrakopoulou, “ ‘Popular’ Religion and ‘Of¿cial’ Religion: Practice, Perception, Portrayal,” in Religious Diversity in Ancient Israel and Judah (ed. F. Stavrakopoulou and J. Barton; New York: T&T Clark International, 2010), 37–58. 1

1. Introduction

7

evidence suggests that a number of the biblical laws were ignored, possibly through lack of knowledge,29 or else intentionally disregarded.30 Such intentional disregard is documented in one signi¿cant case of a creditor—who was otherwise prohibited from keeping his debtor’s clothes as a pledge, for more than one day.31 According to Amos, this was not the least of the violations rife in his lifetime.32 In 1960 the discovery of an ostracon in the remains of an ancient fortress located in MeÑad Hashavyahu, one mile south of Yavneh-yam, indicates that his rebuke was not unfounded. Here an appeal to the local governor is made by a labourer who claims that having completed his day’s work (including reaping, measuring and storing grain), “then came Hôša!yƗhû, son of ŠǀœƗy and he took your servant’s garment.”33 John Gibson comments:

29. As possibly was the case in the earliest historical record of Jewish divorce (from Elephantine, Southern Egypt) which Àouts Deut 24:1, where “B28 The Document of Wifehood,” allows for the wife unilaterally to divorce her husband, while retaining her own property. See The Elephantine Papyri in English: Three Millennia of Cross-cultural Continuity and Change (ed. B. Porten et al.; 2d ed.; Documenta et monumenta Orientis antiqui 2; Atlanta: SBL, 2011), 177–84, and also J. Mélèze-Modrzejewski, “Mibtahiah and Her Husbands: A Family of Note During the Reign of Artaxerxes I,” in The Jews of Egypt from Rameses II to the Emperor Hadrian (Edinburgh: T. & T. Clark, 1996), 26–36. 30. At Elephantine, there is the equally compromising fact that the Jews were additionally swearing legal oaths on Egyptian gods in their temple: a feature which may reÀect the nascent state of monotheism, rather than the deliberate de¿ance of Deuteronomic law. 31. Where Exod 22:24–26 states: “If you lend money to My people, the poor among you, do not act toward them as a creditor; exact no interest from them. If you take your neighbour’s garment in pledge, you must return it to him before the sun sets; it is his only clothing, the sole covering for his skin. In what else shall he sleep? Therefore if he cries out to Me, I will pay heed, for I am compassionate.” See also Deut 24:10–13. 32. Amos 2:7–8 reads: “[Ah] you who trample the heads of the poor into the dust of the ground and make the humble walk a twisted course! Father and son go to the same girl and thereby profane My holy name. They recline by every altar on garments taken in pledge, and drink in the House of their God wine bought by ¿nes they imposed.” 33. Shmuel Ahituv restores these lines as follows: ġć ĎĞĐČ ĐĈĠ ėĈ ČċĐęČĠĎ ćĈĐČ ĒĊĈę ĊĉĈ. See S. Ahituv, Handbook of Ancient Hebrew Inscriptions: From the Period of the First Commonwealth and the Beginning of the Second Commonwealth—Hebrew, Philistine, Edomite, Moabite, Ammonite and Bil‘am Inscriptions (Jerusalem: Bialik Institute, 1992 [Hebrew]), 97–99. For further discussion see A. Rainey, “Syntax and Rhetorical Analysis in the Hashavyahu Ostracon,” JANES 27 (2000): 75–79. 1

8

The Body as Property The plaintiff was thus either a tenant farmer, who had to deliver a stated quantity of grain to the authorities, or a member of the conscript corvée engaged for a period at harvest to help stock the fort with provisions. I prefer the latter interpretation, because he was obviously destitute or nearly so, the con¿scation of a garment being the regular distraint in Mosaic law for non-payment of debt or obligation by a poor person.34

Clearly the identity of the plaintiff either as a tenant farmer or a conscripted labourer does not affect the reality that his complaint presumes that either a proto-type (or variant) of Exod 22:24–26 or Deut 24:10–13 was operational, irrespective of whether it was being Àouted.35 Such, albeit rare, indications demonstrate that the biblical laws were neither random nor incidental insertions, but were meaningful in their own socio-economic environment.36 This, however, does not mean that one can then extrapolate to what degree any of the other biblical laws were operative, in any given period: a situation that necessitates the following precautions: First: It is admitted only that the traditions described in the Pentateuch were known to the biblical writers: whether any of the dis¿gurements speci¿ed were actually implemented cannot be corroborated. Nor can it be presumed that “the biblical codes likewise were the product of the law in practice within the societies that produced them and not simply the product of other codes.”37 This assumption takes no account of the obvious differences between the authorized versions preserved in the biblical

34. SSI, 27. 35. Fred W. Dobbs-Allsopp maintains that the ostracon represents “an extrajudicial petition,” in “The Genre of the MeÑad pashavyahu Ostracon,” BASOR 295 (1994): 49–55 (49), where the accusation is “an abuse of power involving the wrongful taking of property,” rather than one of theft (ibid., 50). This is based on the earlier assessment of R. Westbrook, Studies in Biblical and Cuneiform Law (Cahiers de la Revue Biblique 26; Paris: Gabalda, 1988), 30–35. 36. As is probably also the case with the (so-called) “Passover Letter” from the Jedaniah Archive (B13) in The Elephantine Papyri, 126–27. While it is clear from this document that no work was done from the 15–21 Nissan 419/8 BCE, and that the correspondent’s (i.e. Hananiah’s) leavened goods were sealed up and inaccessible during this period, the reconstruction of the terms ĎĘě, “Passover,” and ġČĝĕċ ĉĎ, “Festival of Unleavened Bread,” has been made on the basis of Exod 12:15–20; Lev 23:6 and Num 28:17. 37. R. Westbrook, “The Laws of Biblical Israel,” in Laws from the Tigris to the Tiber: The Writings of Raymond Westbrook (ed. B Wells and F. R. Magdalene; Winona Lake: Eisenbrauns, 2009), 317–39 (329), repr. from The Hebrew Bible: New Insights and Scholarship (ed. E. Greenspahn; New York: New York University Press, 2008), 99–119. 1

1. Introduction

9

memories,38 and the historical realities surrounding their origin.39 This “soft interpretative underbelly of legal positivism”40 also fails to engage with issues arising from critical legal theory, where, ¿rstly, the biblical expressions of concern for the poor and vulnerable have been deemed “obviously rhetorical,”41 and, secondly, where the sexual abuse of women was regulated, rather than prohibited.42 Second: No direct cultural trajectories can be reconstructed from the available correlations in legal terminology presented, yet: “exegesis that is historically sensitive should further dissuade us from quickly lumping together everything that is super¿cially similar.”43 Aside of Wilfred 38. Particularly because of the “utopian or impracticable” character of various Pentateuchal laws, as noted in D. P. Wright, Review of R. Westbrook and B. Wells, Everyday Law in Biblical Israel, JHS 11 (2011). N.p. Online: http://www.jhsonline. org/reviews/reviews_new/review542.htm. Although this is acknowledged by Bruce Wells, in his distinction between of “theoretical treatises” and “legally descriptive treatises,” in “What Is Biblical Law? A Look at Pentateuchal Rules and Near Eastern Practice,” CBQ 70 (2008): 223–43. 39. As Stavrakopoulou (“ ‘Popular’ Religion,” 50) explains “it seems to be prudent to abandon the categories of ‘popular’ religion and ‘of¿cial’ religion altogether, and instead to distinguish between biblical portrayals of the religious past on the one hand, and the likely religious realities of ancient Israel and Judah, on the other.” 40. W. S. Morrow, Review of R. Westbrook and B. Wells, Everyday Law in Ancient Israel: An Introduction, ZABR (2011): 308–13 (311). 41. In “Israelite Concern for the Alien, Orphan, and Widow: Altruism or Ideology?,” ZAW 111 (1999): 498–507 (504), Mark Sneed suggests that the triadic formula “the stranger, the widow and the orphan,” was an entirely rhetorical convention recalled by the ruling elite primarily to serve their own political and economic interests. 42. See here: S. Jacobs, “Terms of Endearment? The ğćġ¡ġěĐ ġĠć (Desirable Female Captive) and Her Illicit Acquisition,” in Text and Context: Exodus to Deuteronomy (ed. G. Yee and A. Brenner; Philadelphia: Fortress, 2012), 237–57; Harold V. Bennett, Injustice Made Legal: Deuteronomic Law and the Plight of Widows, Strangers and Orphans in Ancient Israel (Grand Rapids: Eerdmans, 2002); Carolyn Pressler, “Sexual Violence and Deuteronomic Law,” in A Feminist Companion to Exodus and Deuteronomy (ed. A. Brenner; Shef¿eld: Shef¿eld Academic, 2001), 102–12; Harold Washington, “ ‘Lest He Die in Battle and Another Man Take Her’: Violence and Construction of Gender in the Laws of Deuteronomy 20–22,” in Frymer-Kensky, Levinson and Mathews, eds., Gender and Law, 185–213; and J. C. Exum, “The Ethics of Biblical Violence Against Women,” in The Bible in Ethics: The Second Shef¿eld Colloquium (ed. J. W. Rogerson, M. Davies and M. D. Carroll R.; Shef¿eld: Shef¿eld Academic, 1995), 248–71. 43. H. G. M. Williamson, “He Has Shown You What Is Good”: Old Testament Justice Here and Now: The Trinity Lectures, Singapore, 2011 (Cambridge: Lutterworth, 2012), 41. 1

10

The Body as Property

Lambert’s account of how literary motifs were transmitted orally,44 it is accepted that the biblical scribes did have access to cuneiform legal traditions, at least, during Neo-Babylonian period (626–539 BCE),45 and also that “we must reckon with the likelihood that some shared values were inherited as part of a cultural given from neighbouring, related peoples, adapted, no doubt, to local circumstances and norms.”46 I will additionally suggest that limited access to cuneiform traditions may have been available during the Neo-Assyrian period (934–610 BCE).47 Third: It is not acceptable to retroject any sectarian, Pharisaic, rabbinic, or early Christian interpretations onto the early biblical formulations. Nor is it advisable to assume that because a Second Temple source indicates a speci¿c interpretation of a law that this automatically corresponds to its use in earlier times. The fact that in the Graeco-Roman period Jews circumcised their sons does nothing to inform the practice (or lack of) circumcision in the pre-exilic period. Equally, that in early Tannaitic sources talionic penalties were commuted to monetary ¿nes, has no bearing upon the origins of its formulation in Exod 21:22–25. Rather, what will become evident is that legal differentiations in the 44. W. G. Lambert, “Interchange of Ideas Between Southern Mesopotamia and Syro-Palestine as Seen in Literature,” in Mesopotamien und seine Nachbarn: politische und kulturelle Wechselbeziehungen im Alten Vorderasien vom, vol. 4 (ed. H. J. Nissen and J. Renger; Berlin: Reimer, 1982), 311–16 (314–15), and also “A New Look at the Babylonian Background of Genesis,” in “I Studied Inscriptions from Before the Flood”: Ancient Near Eastern, Literary and Linguistic Approaches to Genesis 1–11 (ed. R. S. Hess and D. T. Tsumura; Sources for Biblical and Theological Study 4; Winona Lake: Eisenbrauns, 1994), 96–113 (108–9). 45. That papyri from Wadi Daliyeh (Samaria) utilize speci¿c Neo-Babylonian legal formulations has also been demonstrated by Jan Dušek in Les manuscrits araméens du Wadi Daliyeh et la Samarie vers 450–332 av. j.-c. (CHANE 30; Leiden: Brill, 2007). 46. Williamson, “He Has Shown You What Is Good,” 34. 47. That scribes in Neo-Assyrian administrative positions were Àuent in Aramaic does not presume that Israelite or Judean scribes were trained to read or write cuneiform during this period. See M. Fales, “Multilingualism on Multiple Media in the Neo Assyrian Period: A Review of the Evidence,” SAAB 16 (2007): 95–122, and also W. S. Morrow, “Resistance and Hybridity in Late Bronze Age Canaan,” RB 115 (2008): 321–39. For an informed account of how Akkadian may have been mediated through diplomatic channels in the eighth century BCE, see W. S. Morrow, “Tribute from Judah and the Transmission of Assyrian Propaganda,” in “My Spirit at Rest in the North Country” (Zechariah 6.8): Collected Communications to the XXth Congress of the International Organization for the Study of the Old Testament, Helsinki 2010 (ed. H. M. Niemann and M. Augustin; BEATAJ 57; Frankfurt: Lang, 2011), 183–90. 1

1. Introduction

11

Covenant Code (Exod 20:19–23:33) were explicit for ¿nancial penalties, negotiated settlements, personal substitution and talionic retaliation.48 These formulations were differentiated precisely because each option reÀected a separate distinct judicial resolution in the pre-institutional context of biblical sources.49 In these cases, I suggest that the absence of extra-biblical evidence verifying the historicity of each law does not negate its basic, semantic meaning. Fourth: The interpretation of medieval European rabbinic authorities is provided in cases where their insights pre-¿gure views advanced in contemporary scholarship. There is no assumption that these exegetes had access to any ancient Near Eastern texts or other epigraphic evidence. Nor should readers assume that their opinions were based on any other ancient traditions, unless otherwise stated. With these pre-requisites clari¿ed, the next step is to ascertain to what extent the biblical scribes had access to ancient Near Eastern legal conventions. 1.3. Access to Cuneiform Law How and when did Mesopotamian legal conventions ¿lter into ancient Israelite and Judean memories? Here a hierarchical account of how aspects of cuneiform culture may have reached audiences in ancient Israel and Judah will be provided—but ¿rst, a brief introduction to the nature of ancient Near Eastern legal collections, also known as law codes.50 48. This will be demonstrated in Section 3.3.3, “Ġěė ġĎġ Ġěė and Napšate Umalla,” Section 3.3.4, “ġĕČĐ ġČĕ The Death Penalty in the Covenant Code,” and Section 3.3.7, “Financial Liability in the Covenant Code.” 49. The term “pre-institutional” applies to both “self-executing laws,” and other potentially impromptu initiatives, where consultation with an independent third party (whether this be a local sage, elder or leader) was made by litigants—that is, it designates legal activities which did not require the formal adjudication of a court. This is based on Professor Bernard S. Jackson’s description in Wisdom Laws: A Study of the Mishpatim of Exodus 12:1–22:16 (Oxford: Oxford University Press, 2006), 29. 50. These include the following collections: Ur-Nammu (LU) Sumerian, ca. 2100 BCE, from Ur (LCMA 14–22); Lipit-Ishtar (LL), Sumerian ca. 1930 BCE, from Isin (LCMA 23–35); Eshnunna (LE) Babylonian, ca. 1770 BCE, from Eshnunna (LCMA 57–70) Hammurabi (LH) Babylonian, ca. 1750 BCE (LCMA 71–142); Middle Assyrian Laws (MAL) ca. 1076 BCE, from Assur (LCMA 153–194); Hittite Laws (HL) ca. 1650–1500, from Hattusha (LCMA 213–240). 1

12

The Body as Property

The ancient cuneiform law codes did not provide a comprehensive account of legal principles or rules, nor did they represent normative law in the societies that promulgated them.51 The provisions engraved upon the monuments are almost never cited in individual legal cases,52 much in the same way that neither the plaintiff in the MeÑad Hashavyahu ostracon, nor Amos 2:7–8, mentioned the law in Exod 22:24–26 or Deut 24:10–13 in their complaints. Furthermore, the corporal punishments speci¿ed are often considered to represent exaggerated measures, intended only as deterrents.53 Yet this does not presume that the cuneiform provisions inscribed lacked practical relevance entirely, or were purely ¿ctitious constructs, as Nicolas Postgate explains: “While the codes may thus have enshrined traditional practices, they presumably did so in order to formalize and standardise them. It is dif¿cult to imagine that in such cases the provisions of the codes were simply ignored, and had no effect on existing legal practice.”54 51. As Raymond Westbrook has emphasized in “Cuneiform Law Codes and the Origins of Legislation,” ZA 79 (1989): 201–22. 52. Individual references to inscribed laws (in Assyrian sources) have been evaluated by Klaas Veenhof to include: First, an OB contract from Ur, which states that the individual hired to oversee the cultivation of a ¿eld shall be treated “in accordance with text of the stele (kƯma pƯ narƯm).” Second, in an unpublished letter (currently in Chicago), which states that “the wages for a hired worker are written on the stele.” Third, in an Old Assyrian lawsuit from Kültepe where “the words on the stele” is mentioned. And fourth, in correspondence from the local ruler of Assur to the of¿cials in Kanesh, which authorizes individual creditors to indemnify themselves by taking whatever the debtor possesses, “in accordance with the words of the stele.” See K. R. Veenhof, “ ‘In Accordance With the Words on the Stele’: Evidence for Old Assyrian Legislation,” Chicago-Kent Law Review 70 (1994–95): 1717–44. Martha Roth also discusses an Old Babylonian letter, sent on behalf of an administrator (Alammush-naÑƯr) to regulate the rate of pay for weavers, which states: “the wages for a hired worker are recorded on the stela,” where the provisions in LH 273–274 could be implied. See M. T. Roth, “The Law Collections of King Hammurabi: Towards an Understanding of Codi¿cation and Text,” in La codi¿cation des lois dans l’Antiquité: Actes du Colloque de Strasbourg 27–29 Novembre 1997 (ed. E. Lévy; Travaux du Centre de recherche sur le Proche-Orient et la Grèce antiques 16; Paris: De Boccard, 2000), 9–31 (22–23). 53. As also assumed in relation to the death penalty prescribed for a child who strikes (or insults) a parent in Exod 21:15, 17 and Lev 20:9, and in the case of “the wayward and de¿ant son” in Deut 21:18–21. 54. J. N. Postgate, Early Mesopotamia: Society and Economy at the Dawn of History (London: Routledge, 1992; repr. 1995), 291 where Postgate adds: “Partly also there is a problem with the terminology, since some of the texts mentioning the ‘royal ordinance’ (Ñimdat šarrim) are certainly referring to economic edicts. The exact implication of the word translated as ‘ordinance’ has been the subject of lively 1

1. Introduction

13

Given the signi¿cance of the ancient Near Eastern laws, the crucial question remains: How much of ancient Mesopotamian legal tradition was known to the authors of biblical legal codes in general? Clearly not everything from Mesopotamia was familiar to the ancient Hebrew scribes, and moreover, there is no evidence that the Sumerian legal codes were translated into Akkadian. Here the description of the transmission of motifs from Gilgameš into the Odysseus is valuable, where Andrew George concludes: “while I acknowledge the many parallels between Gilgameš and Homer, I see the poems as much more distant relatives than do those who argue for direct inÀuence.”55 This “distant” relationship between the cuneiform sources and classical Greek myth provides an informative valuable example of how indirect transmission of literary motifs occurs,56 moving from its host (i.e. Mesopotamian) culture, until it is then subsequently revised and incorporated into a recipient, target culture.57 discussion, but when the Judges of Babylon tell us that in a lawsuit between two contestants ‘we have examined the case and meted out justice to them in accordance with the ordinance of our lord (the king)’, or another judge is exhorted to ‘give judgement in accordance with the ordinance which is before you’, it is perverse to resist the conclusion that these ordinances were indeed royal laws committed to writing, and applied in practice to the exercise of justice.” 55. A. George, The Babylonian Gilgamesh Epic: Introduction, Critical Edition and Cuneiform Texts, vol. 1 (Oxford: Oxford University Press, 2003), 57, in his assessment of Martin L. West’s contention of a “hot line” from Neo-Assyrian court literature to archaic Greek writers—in The East Face of Helicon (Oxford: Oxford University Press, 1997), 587. 56. Bill Morrow has kindly explained (in a personal communication, December 2011): “What is at stake in making a distinction between direct and indirect means of transmission? In responding to this query, I would de¿ne ‘indirect’ transmission as mediation from the originating language/culture to the adoptive language/culture by means other than postulating that a scribe in the adoptive context read and translated the literature produced in the original culture and language. This may seem like rather a ¿ne point. But the fact is, there is plenty of evidence for indirect mediation of motifs and ideas from Mesopotamia to other cultures that does not require the idea that those who received them had scribal competence in Akkadian. The work of Walter Burkert in The Orientalizing Revolution (1992) and Martin West’s The East Face of Helicon (1997) is informative in this respect. The inÀuence of Mesopotamian ideas and religious practices on ancient Greece is evident; but neither writer claims that the Greeks knew how to read Akkadian.” 57. One other intriguing target culture is examined by Gebhard Selz, who observes: “The Qumran manuscripts of the Book of Giants mention the hero Gilgamesh among the Giants who were offspring of the evil (fallen) angels who had intercourse with human females. Starting from this fact, I attempt to show that not only did the generally late Mesopotamian traditions about the primeval sages and 1

14

The Body as Property

The process of indirect transimission is particularly relevant also to Mario Liverani’s reconstruction of a cultural koine, which he suggests was spread throughout the ancient Levant, as follows: Despite this imbalance in the evidence, which is of course normal for cultures that are archaeologically recovered, it is nevertheless possible— by patient examination and contextualization—to reconstruct a common trajectory and a fairly homogenous cultural character for the whole of the Levant, a koine that still, of course, allows for important or interesting local variation to emerge.58

This recalls Raymond Westbrook’s view, namely, that the biblical and Near Eastern laws developed in a common culture, in which a shared legal ontology existed.59 Such reconstructions do not presume that legal traditions in nearby or adjacent environments were necessarily identical or direct paraphrases of similar provisions,60 but rather that the motivation for each law (and the issues that these sought to address) often originated in a comparable, social context. Nor does a lack of uniformity (or inconsistencies in attention to detail) diminish the reality this “common legal culture,” because variations on a speci¿c theme do appear to be widespread, especially in relation to personal injuries. This is con¿rmed by Sophie Lafont’s evaluation of miscarriage and abortion law, where she demonstrates that “the brief picture of the Near Eastern sources about abortion shows that there is no de¿nitive pattern ¿tting all of the texts. The diversity of enforceable rules

related matters form a background for the mythic imagery of the Enochic system of thought, but that the much earlier epic traditions about the kings Gilgamesh and Etana should also be considered,” G. J. Selz, “Of Heroes and Sages: Considerations on the Early Mesopotamian Background of Some of the Enochic Traditions,” in The Dead Sea Scrolls in Context: Integrating the Dead Sea Scrolls in the Study of Ancient Texts, Languages and Cultures, vol. 2 (ed. A. Lange, E. Tov and M. Weigold; VTSup 140; Leiden: Brill, 2011), 779–800 (782–83). 58. Liverani, Israel’s History, 198. 59. Westbrook, “The Laws of Biblical Israel,” 317–39. 60. To exemplify this shared legal ontology, Westbrook (The Laws of Biblical Israel, 336) evaluates a selection of inheritance laws, where joint ownership by coheirs is envisaged in Deut 25:5, LE16, MAL B2-B3, Gaius, Institutes III 154 a-b, Justinian, Digest 10.2 and the Gortyn Code V: 28–34, which he compares to individual cases from Emar on the Euphrates (fourteenth century) and Egypt (thirteenth century) and concludes that: “Here then is a case where many law codes were focussed on the same legal institution, were applying the same intellectual effort to analogous problems (in tandem with devices being applied in practice), but were not dependant on each other.” 1

1. Introduction

15

is an essential feature of these laws.”61 Nor is one at liberty to presume that similarity automatically indicates dependence: “the analogy does not establish any connection between those systems,62 but relates to the judicial patrimony of humankind: a great number of civilizations protect family and property in a more or less sophisticated way.”63 This stated, within the hierarchy of traditions available to the biblical scribes the most inaccessible were obviously those from ancient Sumer. While no direct knowledge of, or access to, Sumerian law can be presumed, William Hallo’s account of the transmission of literature in the “The Post-Sumerian Phase” (ca. 1600–100 BCE) is relevant: The fall of Babylon (ca. 1600 BCE) led to the closing of the scribal schools of Babylonia and relegated Sumerian ¿rmly and ¿nally to the status of a learned and liturgical language. Scribal guilds replaced the schools in Babylonia, and royal libraries like those of Assur and Nineveh took their place in Assyria. Here and in the temples, Sumerian texts continued to be catalogued, copied, recited, translated into Akkadian, and even newly composed. And with the growing prestige of Babylonian learning, they were carried beyond the borders of Mesopotamia to the capital cities surrounding it in a great arc—from Susa in the southeast to Hattuša in the north and Ugarit in the west.64

This account of the transmission of Sumerian literary traditions, long after its demise as a spoken language, does indicate how corresponding motifs and conceptions recur in subsequent Babylonian and Assyrian literature.65 Additional parallels that are examined in this research include

61. S. Lafont, “Ancient Near Eastern Laws: Continuity and Pluralism,” in Theory and Method in Biblical and Cuneiform Law: Revision, Interpolation and Development (ed. B. Levinson; JSOTSup 181; Shef¿eld: Shef¿eld Academic, 1994), 91–118 (118). 62. As equally emphasized in Meir Malul’s Review of D. P. Wright, Inventing God’s Law: How the Covenant Code of the Bible Used and Revised the Laws of Hammurabi, Strata: The Bulletin of the Anglo-Israel Archaeological Society 29 (2011): 155–59. 63. Lafont, “Ancient Near Eastern Laws,” 93. 64. W. W. Hallo, “Sumerian Literature,” ABD 5:234–37 (236); also R. Westbrook and B. Wells, Everyday Law in Biblical Israel (Louisville: John Knox, 2009), 20–21. 65. Furthermore, as W. W. Hallo, “Sumer and the Bible: A Matter of Proportion,” in The Future of Biblical Archaeology: Reassessing Methodologies and Assumptions: The Proceedings of a Symposium, August 12–14, 2001 at Trinity International University (ed. J. K. Hoffmeier and A. Millard; Grand Rapids: Eerdmans, 2004), 163–76 (169), states: “the persistence of Sumerian compositions, sometimes with translations into Akkadian and other languages, at scribal schools in Syria— like Emar on the Eupherates and Ugarit on the Meditteranean coast—to the very end 1

16

The Body as Property

the process of reÀective talion, explicit in biblical and Sumerian wisdom literature, together with the additional teeth-breaking imperatives, presented in the discussion of instrumental and reÀective talion. These correlations do not demonstrate that either Sumerian proverbs or judicial traditions were directly known to the biblical scribes, but simply that conceptual parallels are attested in geographically and chronologically disparate corpuses. Further “diversity of enforceable rules”66 is witnessed also by the fact that Sumerian law prescribed only ¿nancial penalties for non-fatal physical injuries, unlike the provisions in Hammurabi’s codex and in biblical law. At best, therefore, only indirect knowledge of incidental Sumerian traditions and values may have been available to the biblical scribes. In relation to the availability of the Middle Assyrian laws,67 attested in only one copy,68 there is also no assumption that this collection became part of the broader scribal curriculum in the early ¿rst millennium.69 It is feasible that individual traditions or formulaic phrases from this corpus may have been preserved in subsequent Neo-Assyrian cuneiform sources, and that the biblical scribes had access to these (or similar) data, probably on or after the fall of Samaria, or upon Sennacherib’s conquest of Lachish and his siege of Jerusalem (702–701 BCE). A reality that is of the Bronze Age in or about 1200 (and beyond) provides the technical basis for at least their potential transmission into Canaan in the Iron Age and for the survival of Sumerian topoi, periscopes, compositions, and genres in alphabetic scripts.” 66. Lafont, “Ancient Near Eastern Laws,” 118. 67. The Middle Assyrian laws, preserved on the fourteen tablets excavated by the German Oriental Society at Assur in 1903, are not a formal code of law, but more like a restatement or recompilation of older materials. Scholars agree that the existing copies of these laws from the ca. 1175 BCE were based on fourteenthcentury originals. See S. Lafont, “Mesopotamia: Middle Assyrian Period,” in A History of Ancient Near Eastern Law (ed. R. Westbrook; 2 vols.; HO 72; Leiden: Brill, 2003), 1:521–64 (521). 68. Additional fragments of the laws from tablet A have been discovered in Nineveh, published by J. N. Postgate, “Assyrian Texts and Fragments,” Iraq 35 (1973): 13–26 (19–21), who suggests that these may have been brought from Assur to Nineveh, or that the fragments may have been found at Qal‘at Sherqat and then later became amalgamated with tablets from the Kuyunjik collection, if they were not originally from Nineveh. 69. This is irrespective of Eckart Otto’s argument that the content and structure of the laws in Deut 12–26 were dependant on Tablet A of the Middle Assyrian Laws, in “Rechtsreformen in Deuteronomium XII–XXVI und im Mittelassyrischen Kodex der Tafel A (KAV1),” in Congress Volume, Paris 1992 (ed. J. A. Emerton; VTSup 61; Leiden: Brill, 1995), 239–73. See W. S. Morrow, “Cuneiform Literacy and Deuteronomic Composition,” BO 62 (2005): 204–13. 1

1. Introduction

17

pre-supposed by the earlier payments of tribute, made by the Israelite king Jehu in ca. 841 BCE to Shalmaneser III,70 where the Black Obelisk of Shalmaneser III provides earliest surviving representation of an Israelite (assumed to be either Jehu or one of his servants, kneeling before the king). This image from the monument is reproduced by the courtesy of trustees of the British Museum:71

Figure 1. From the Black Obelisk of Shalmaneser III. Courtesy of the Trustees of the British Museum.

70. In addition to later tribute submitted from the Judean king Joash (ca. 800 to Adad-NƗrƯri III (810–783 BCE). See A. K. Grayson, Assyrian Rulers of the Early First Millennium BC, II: 858–745 BC (RIMA 3: Assyrian Periods; Toronto: University of Toronto Press, 1996), 211. 71. The obelisk was excavated by Austin Henry Layard (1845–49) at Nimrud (ancient Kalhu), northern Iraq; currently on display in Gallery 8, Assyrian Sculpture (ME 118885) at the British Museum. The epigraph above the Israelite kneeling at the feet of the king states: “I received tribute from Jehu (Iaua), son of Omri (Ñumrî): silver, gold, a gold bowl, a gold tureen, gold vessels, gold pails, the staffs of the king’s hand, (and) spears.” Text 88 in Grayson, Assyrian Rulers, 149, where Jehu, the son of Jehoshaphat, son of Nimshi (2 Kgs 9:20) is associated with the more prestigious line of Omri, by the Assyrian scribes. BCE)

1

18

The Body as Property

Thus Neo-Assyrian sources indicate that formal communications with Israel and Judah had existed for a substantial period, by the seventh century BCE. Furthermore, since the formulaic similarities between Deuteronomic and Neo-Assyrian treaty terminology have long been accepted,72 it is not unreasonable that Israelite or Judean scribes also had knowledge of Neo-Assyrian legal tradition. This is possible in view of the fact that that “legal documents in Mesopotamia, whether Sumerian or Akkadian, are drawn up in a rigourous pattern,”73 and as Theodore Kwasman explains: “Neo-Assyrian legal formularies were the model on which most Aramaic legal texts were based.”74 Additional correlations, including “the narrative structure of the events of the divided kingdoms shows traces of Assyrian and Babylonian patterning that the Judean scribes

72. Notably in D. J. Wiseman, “The Vassal Treaties of Esarhaddon,” Iraq 20 (1958): 1–92 (26), and Moshe Weinfeld, Deuteronomy and the Deuteronomic School (Oxford: Clarendon, 1972). See further M. Weinfeld, “Covenant Terminology in the Ancient Near East and Its InÀuence on the West,” JAOS 93 (1973): 190– 99; “The Loyalty Oath in the Ancient Near East,” UF 8 (1976): 379–414, “Covenant Making in Anatolia and Mesopotamia,” JANES 22 (1993): 135–99, and also G. E. Mendenhall, “The Suzerainty Treaty Structure: Thirty Years Later,” in Religion and Law (ed. E. B. Firmage, B. G. Weiss and J. W. Welch; Winona Lake: Eisenbrauns, 1990), 85–100, and also H. U. Steymans, Deuteronomium 28 und die adê zur Thronfolgeregelung Asarhaddons: Segen und Fluch im Alten Orient und in Israel (OBO 145; Freiburg, Schweiz: Universitätsverlag and Göttingen: Vandenhoeck & Ruprecht, 1995), 143–94. 73. A. L. Oppenheim, Ancient Mesopotamia: Portrait of a Dead Civilization (rev. E. Reiner; Chicago: University of Chicago Press, 1964; repr. 1977), 280. 74. T. Kwasman, ed., Neo-Assyrian Legal Documents in the Kouyunjik Collection of the British Museum (Rome: Ponti¿cio Istituto Biblico, 1988), 283, where Kwasman suggests that since a signi¿cant number of legal documents found at Nineveh were from other geographical regions, this indicates that Neo-Assyrian legal convention and not the local, regional legal practices were operational. Likewise at the British Institute for the Study of Iraq Annual Lecture, held on 10 December 2009 at UCL, Karen Radner spoke on the subject of “The Neo-Assyrian Imperial Project: The Mechanics of Coherence.” Here she suggested, ¿rst, that Neo-Assyrian legal documentation all over the empire was remarkably homogeneous and, secondly, that legal documents in eighth-century Syria, Israel and Mesopotamia were structured and drafted identically, indicating that some kind of “invisible training faculty” existed. See also K. Radner, “The Relation Between Format and Content in Neo-Assyrian Texts,” in Nineveh 612 BC: The Glory and Fall of the Assyrian Empire. Catalogue of the 10th Anniversary Exhibition of the Neo-Assyrian Text Corpus Project (ed. R. Mattila; Helsinki: Helsinki University Press, 1995), 63–79. 1

1. Introduction

19

must have encountered during their stay in Babylonia,”75 are also apparent in the Deuteronomistic histories.76 In this light a number of Neo-Assyrian legal conventions would have been familiar to the biblical scribes, even if they did not have ¿rst-hand knowledge of the Middle Assyrian law code. A greater degree of cultural transmission is, however, apparent in the case of the laws of Hammurabi, where it is recognized that the biblical scribes did have access to this prestigious corpus.77 The commission of this stela as an act of royal propaganda conferred divine legitimacy of Hammurabi’s kingship, presented his reign as one in which perfect justice was achieved and proclaimed his own account of his military victories, as Jan Bottéro observes: “The ‘Code’ of Hammurabi is essentially a self-glori¿cation of the king. But at the same time it is a political charter that synthesizes an entire detailed and organized vision of the ‘right’ exercise of justice. And it is, in that way, a real treatise on jurisprudence.”78 While the provisions on the stele did not reÀect normative legislation,79 they nonetheless represented far more than a technical exercise, associated purely with the scribal compilation of omen lists and medical treatises,80 as indicated by their relationship to other legal 75. Liverani, Israel’s History, 229. 76. These traces of patterning include the structure and presentation of both events and the dating system of the kingdoms of Israel and Judah. Liverani (ibid.) suggests that this was modelled on the earlier Babylonian chronicles, which identify the date the enthronement of both the Elamite and Assyrian kings to the corresponding reigning year of the Babylonian king. 77. “By applying the clear and objective criteria…this study arrives at the unmistakable conclusion that the biblical laws of the goring ox, contrary to the views held by some scholars, are closely dependant on their Mesopotamian counterparts. Furthermore, it suggests that the biblical author or editor knew ¿rst-hand the Mesopotamian law and that he may have even had a copy (or copies?) of them in front of him when he composed or edited his biblical version,” M. Malul, The Comparative Method in Ancient Near Eastern and Biblical Legal Studies (Kevelaer: Butzon & Bercker; Neukirchen–Vluyn: Neukirchener, 1990), 159. See further David Wright, “The Laws of the Hammurabi as a Source for the Covenant Collection (Exodus 20:23–23:19),” Maarav 10 (2003): 13–87, together with “Opportunity and Date for the Use of Hammurabi’s and Other Cuneiform Laws,” in Inventing God’s Law: How the Covenant Code of the Bible Used and Revised the Laws of Hammurabi (Oxford: Oxford University Press, 2009), 91–120, and also Westbrook and Wells, Everyday Law, 25–31. 78. J. Bottéro, Mesopotamia: Writing, Reasoning and the Gods (trans. Z. Bahrani and M. van de Mieroop; Chicago: University of Chicago Press, 1992), 183. 79. Westbrook, “Cuneiform Law Codes,” 201–22. 80. As F. R. Kraus, “Ein zentrales Problem des altmesopotamischen Rechtes: Was ist der Codex Hammu-rabi?,” Genava 8 (1960): 283–96. 1

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elements in the Old Babylonian cuneiform record. Even as a political discourse the code does not provide a comprehensive account of contemporary judicial realites, where the association between the individual laws, existing royal decrees and separate judicial verdicts is unclear,81 as Sophie Lafont explains: But regardless of the way it is expressed, Mesopotamian scienti¿c thinking remains basically casuistic, not because of its conditional “cloth,” but because of its incomplete feature. Oriental codes do not aim at exhaustiveness; they rather clarify debated points or regulate topics thought to be interesting by their promulgators. By nature, written oral law is lacunary: it is only designed to complete a mostly oral tradition.82

Nor is it acceptable to assume that as a highly politicized legal treatise, the provisions stipulated in Hammurabi’s laws were purely technical or hypothetical constructs, which had no bearing on contemporary legal realities. Marc van de Mieroop explains that “while the epilogue states that these are just verdicts by King Hammurabi on actual cases, there are no names of victims and perpetrators preserved. The laws are thus somewhere between the formulation of rules and accounts of actual cases judged by the king.”83 This “somewhere between” space is located a little more precisely by Nicholas Postgate, who suggests that each of the casuistic provisions speci¿ed constituted a vital “level of abstraction,” necessary for a king when standardising his laws and asserting his authority in newly conquered lands: In some passages, such as the rules of compensation (see Text 15:7),84 we can see that the authors of the provisions have proceeded by analogy. Therefore it is clear from this level of abstraction that the intention is to 81. “That law codes were never intended to cover all possible cases and conÀicts makes it less surprising that evidence for links between them and decrees is limited. Law collections basically were selections of exemplary ‘righteous verdicts’ (dƯnƗt mƯšarim) of various origin, collected and ‘published’ to show and proclaim that the ruler lived up to his duty and reputation of being a just king, and to encourage or convince its readers that following them up and implementing them was wise and pro¿table,” K. R. Veenhof, “The Relation Between Royal Decrees and Law Collections in the Old Babylonian Period,” Jaarbericht van het Voor-aziatisch Egyptisch Gezelschap “Ex Oriente Lux” 35/36 (1997–2000): 49–83 (78). 82. Lafont, “Ancient Near Eastern Laws,” 101. 83. M. van de Mieroop, King Hammurabi of Babylon: A Biography (Cambridge, Mass.: Blackwell, 2005), 102. 84. Text 15:7 (Postgate, Early Mesopotamia, 290) refers to the following provisions: LH 196 If an awƯlu should blind the eye of another awƯlu, they shall blind his eye. 1

1. Introduction

21

lay down a set of laws universally applicable throughout the realm in future, much as one would assume from the terms in which Hammurapi himself describes his stele’s function (Text 15:8).85 In this context it is important to realize that the codes are promulgated by a king, in most cases one who has recently annexed new territories over which the new laws are to be valid.86

Postgate’s evaluation of second-millennium Babylonian livestock and herding contracts, and their relationship to the provision in LH 57,87 informs this reconstruction, where: “The code holds the shepherd liable for deaths from foot rot, and since exactly this is speci¿ed in herding contracts from after Hammurapi but not earlier, it could be that the standard form of contract was changed to conform with the code.”88 It is also clear that the codes represented “only a gloss on the large body of traditional (presumably unwritten) law, and can have dealt only with a fraction of the cases before the courts.”89 This acknowledgment of Hammurabi’s laws as “a gloss,” however marginal, “on the large body of traditional (presumably unwritten) law,”90 is important, because it does LH 198

If he should blind the eye of a commoner or break the bone of a commoner, he shall weigh and deliver 60 shekels of silver. LH 199 If he should blind the eye of an awƯlu’s slave or break the bone of an awƯlu’s slave he shall weigh and deliver one half of his value (in silver). 85. In text 15:8 Postgate translates lines xlviii 3–19 of Hammurabi’s epilogue as follows: “Let the wronged man who has a case go before my statue called ‘King of Justice’ and read out my inscribed stele and hear my valuable words. Let my stele reveal to him the case, so that he will discover his rights and appease his heart.” Postgate, Early Mesopotamia, 290. 86. Ibid. 87. Ibid., 159–63. 88. Ibid., 291. Compare also Westbrook and Wells, Everyday Law, 111–12 where the relationship between Exod 22:9–12, LH 266 and the relevant shepherd hiring contracts are examined. 89. Postgate, Early Mesopotamia, 291. This is not to ignore the fact that the transition from appointing lay, rather than priestly judges in the Old Babylonian period occurred during Hammurabi’s reign, from which time the law-suits were no longer held in the temple of Šamaš. See further R. Harris, “On the Process of Secularization Under Hammurapi,” JCS 15, no. 4 (1961): 117–20. 90. Postgate, Early Mesopotamia, 291. Victor Hurowitz identi¿es the simultaneous use of dual (i.e. oral and written) forms of transmission in Mesopotamian literature. See V. A. Hurowitz, “Spanning the Generations: Aspects of Oral and Written Transmission in the Bible and Ancient Mesopotamia,” in Freedom and Responsibility: Exploring the Challenges of Jewish Continuity (ed. R. M. Geffen and M. B. Edelman; Jersey City: Ktav, 1998), 11–30. 1

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suggest that at least during Hammurabi’s lifetime the provisions in the codex may have represented the most stringent, discretionary sentence that only he could impose in any given case brought before him.91 Potentially the location of the stela at the Esagil Temple in Babylon would proclaim the king’s judicial discretion to all worshippers,92 since monuments bearing these laws were additionally displayed at Nippur and Sippar during Hammurabi’s lifetime.93 This suggestion is supported by Hammurabi’s written instructions to two of his of¿cers (Sin-iddinam and Shamash-¨azir) who were assigned to governing the city of Larsa, after its annexation. Both men found themselves having to arbitrate in a judicial capacity, and sought the advice of the king to decide upon “the most trivial legal cases which one would think barely worthy for the scrutiny of Shamash-¨azir himself.”94 Here Wilhelmus Leemans has suggested: First, if all of the land distribution cases mentioned in these letters referred exclusively to property held by the crown, or “under government administration,”95 this would indicate that Hammurabi was involved only with the formal allocation of crown property (i.e. in assigning property only in his own ¿elds, in these cases), rather than adjudicating in disputes between private individuals.

91. According to Westbrook and Wells, Everyday Law, 35: “the correspondence of Hammurabi shows that he could act in three ways in response to such a petition: he either tried the case himself and gave ¿nal judgement, decided a point of law and remitted the case to a local court for a decision on the facts, or remitted the entire case to a local court.” 92. See V. A. Hurowitz, “Hammurabi in Mesopotamian Tradition,” in An Experienced Scribe Who Neglects Nothing: Studies in Honor of Jacob Klein (ed. Y. Sefati et al.; Bethesda: CDL, 2005), 497–532. 93. Martha Roth additionally suggests that in the case of the wronged man (seeking justice by bringing his case to Hammurabi) simply to present his situation before the stone monument would, alone, provide solace in prayer and in the blessings promised by the king, in M. T. Roth, “Hammurabi’s Wronged Man,” JAOS 122 (2002): 38–45: a speculation that remains impossible to prove. 94. “For a man of such inÀuence and diverse responsibilities, it is surprising to ¿nd Hammurabi micro-managing affairs of such insigni¿cant detail during the ¿nal ten years of his rule,” Ronald A. Veenker, in “Syro-Mesopotamia: The Old Babylonian Period,” in Mesopotamia and the Bible: Comparative Explorations (ed. M. W. Chavalas and K. Lawson Younger Jr.; JSOTSup 341; London: Shef¿eld Academic, 2002), 149–67 (161). 95. W. F. Leemans, “King Hammurapi as Judge,” in Symbolae Iuridicae et Historicae Martino David Dedicatae (ed. J. A. Ankum et al.; Leiden: Brill, 1968), 107–29 (128). 1

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Second: that although the king acted as the highest judge in the land,96 it is also clear that “he not only gave judgements himself but he desired to be informed of the judgements in remitted cases as well.”97 In the subsequent 1,000 years after Hammurabi’s death, the laws were subsequently utilized only as a pedagogic resource in the scribal training curriculum: their commemorative appeal is evidenced by their preservation in Assurbanipal’s library. While the biblical scribes clearly did have access to this corpus, David Wright’s “hypothesis of textual dependence”98 is not presumed in this study. It is not necessary to insist that the Covenant Code was “directly, primarily and throughout dependant on the Laws of Hammurabi,”99 as Cornelis Houtman explains: The similarities are so speci¿c that familiarity on the part of writers of the covenant book with the legal traditions of the ancient Near East is virtually certain. The question whether the Israelite writers “possessed” the legal texts from the “Umwelt” in the form we know them, or whether they knew the legal traditions from “a common Near Eastern legal tradition and practice”…assuming these ever existed…is here of lesser importance.100

Likewise, the focus of this study is not upon the original forms of any given legal tradition, nor on its method of transmission from the cuneiform sources into the Pentateuch, but rather on its reception and impact within (and around) biblical memory. Having clari¿ed which of the Sumerian and Mesopotamian legal codes (or elements of them) may have been known to the biblical scribes, it remains only to explain how the comparative method will be applied to examining the Akkadian and Hebrew sources. 1.4. This Pro¿le of the Comparative Method In 1962 Samuel Sandmel addressed the reality of Second Temple Judaisms, sharply criticizing the rampant spread of “parallelomania,”101 before the full publication of the Dead Sea Scrolls was made available. 96. Kraus, “Ein zentrales Problem,” 287–88. 97. Leemans, “King Hammurapi as Judge,” 129. 98. Initially outlined in Wright, “The Laws of the Hammurabi,” 49. 99. Wright, Inventing God’s Law, 3. 100. C. Houtman, Exodus. Vol. 3, Chapters 20–40 (Leuven: Peeters, 2000), 91. 101. S. Sandmel, “Parallelomania,” JBL 81 (1962): 1–13 (1), states: “We might for our purposes de¿ne parallelomania as that extravagance among scholars which ¿rst overdoes the supposed similarity in passages and then proceeds to describe source and derivation as if implying literary connection Àowing in an inevitable or predetermined direction.” 1

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However, given the existence of distinct sects during the ¿rst century and the fact that these did develop into the early Jewish and Christian communities of the late Roman and Byzantine periods,102 it is not unreasonable to search for correlations in the views and practices of each group.103 What is, of course, far more dif¿cult to reconstruct is the historical connection between each and, even more elusive, the direction of inÀuence inferred from their writings. In view of the problems inherent in evaluating sources which are at least 2,000 years old, how effective is a comparative method for analysing biblical law, where the absence of Hebrew text witnesses from the pre-exilic period are all the more blatant? Here Jeffrey Tigay explains that “a comparative method of sorts is as old as the Bible itself. Biblical religion de¿nes itself in relation to other religions, normally (although not invariably) polemicizing against them.”104 Tigay also addresses the “sweeping denial of signi¿cant similarities,” where it is argued that the notion of borrowing is inapplicable, since the allegedly borrowed elements are universal features common to all societies and at all times.105 In addition, Tigay rejects Alan Millard’s assertion that even the claim of indirect transmission has yet to be substantiated: However, it has yet to be shown that there was borrowing, even indirectly. Differences between the Babylonian and Hebrew traditions can be found in factual details of the Flood narrative (form of the ark, duration of the Àood, the identity of the birds and their dispatch) and are most obvious in the ethical and religious concepts of the whole of each composition. All

102. See S. Stern, ed., Sects and Sectarianism in Jewish History (IJS Studies in Judaica 12; Leiden: Brill, 2011). 103. Whether Philo’s nomos agraphos and the rabbinic ċě ēęĈĠ ċğČġ, “oral law,” are unrelated (as Sandmel, “Parallelomania,” 2–3 argues) is an entirely different matter. Here Victor Hurowitz’s view of the relationship between the taklimtu (spoken commentaries) witnessed in the transmission of Ennjma Eliš, and the pre-history of rabbinic oral tradition, would have to be factored into future discussions. See Hurowitz, “Spanning the Generations,” 11–30. 104. J. H. Tigay, “On Evaluating Claims of Borrowing,” in The Tablet and the Scroll: Near Eastern Studies in Honor of William W. Hallo (ed. M. E. Cohen et al.; Bethesda: CDL, 1993), 250–55 (250). 105. As Robert Gordis claims is the case with the correspondences in Old Babylonian version of Gilgamesh and Eccl 9:7–9, discussed by Tigay, “On Evaluating Claims,” 252–53. I am also grateful to Stuart Weeks for clarifying the importance of this correlation and for also identifying the most relevant commentaries on Ecclesiastes. 1

1. Introduction

25

who suspect or suggest borrowing by the Hebrews are compelled to suggest large-scale revision, alteration, and reinterpretation in a fashion which cannot be substantiated for any other composition from the ancient Near East or any other Hebrew writing.106

Tigay refutes this assertion by explaining that signi¿cant textual revisions, alterations and reinterpretations can, in fact, be substantiated in other compositions from the ancient Near East. This, he argues, is because “within Mesopotamia itself there are many instructive cases, of Sumerian literature borrowed into Akkadian, with differences in details and values as extensive as those between the Biblical and Mesopotamian Àood stories.”107 Probably the most “instructive case” of borrowing is evident in the versions of the Gilgamesh epic, available not only in Sumerian (from Ur) in Akkadian (from Assyria, Sultantepe and Susa, and in a fragment found at the Canaanite site of Tell Megiddo), in Hittite (from Hattusha, modern-day Boghazköi, Asia Minor) and in Hurrian.108 Here Tigay con¿rms that the Hittite “is an abridgement of a native Mesopotamian version. It abbreviates some episodes and omits others entirely, including those which involve descriptions of the Babylonian city of Uruk and were of little interest to an Anatolian audience.”109 He further tabulates the differences between the Old Babylonian, Standard Babylonian and Hittite description of the life of Enkidu—before his meeting with Gilgamesh—and concludes: It cannot be denied that these descriptions are related, since they are each other’s counterparts in two versions of the same composition. But if we did not know that, and if we were to apply the exacting criteria 106. A. Millard, “A New Babylonian ‘Genesis’ Story’,” in Hess and Tsumura, eds., “I Studied Inscriptions from Before the Flood”, 114–28 (127). Au contraire the majority consensus, as George (The Babylonian Gilgamesh Epic, 70) explains: “Because the Àood episode in Genesis 6–8 matches the older Babylonian myth so well in plot and, particularly, in details, few doubt that Noah’s story is descended from a Mesopotamian account.” 107. Tigay, “On Evaluating Claims,” 253. 108. Ibid., and nn. 20–23 therein. See also N. Wasserman, “The Distant Voice of Gilgameš: The Circulation and Reception of the Babylonian Gilgameš Epic in Ancient Mesopotamia,” AfO 52 (2011): 1–14. 109. In addition, “the episode describing the journey to the cedar mountain and its monstrous guard Huwawa receives a great deal more attention, presumably because its locale was supposed to be close to Anatolia and the events provoked the interest of Anatolian readers or listeners. The Hittite version includes the storm-god among those who endowed Gilgamesh with his attributes at birth. This god played no role in the Mesopotamian version but was popular among the Hittites” (Tigay, “On Evaluating Claims,” 254).

1

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The Body as Property exempli¿ed in the arguments against borrowing in Ecclesiastes and Genesis, we might have to conclude instead that the two passages are independent crystallizations of the popular wolf-boy or hairy anchorite themes.110

Tigay’s position is substantiated by Eckart Frahm’s assessment of the textual history of Ennjma Eliš, a literary masterpiece which retained a “central place in Mesopotamia’s religious consciousness for at least a millennium.”111 Frahm explains that when Babylon ¿nally fell to the Assyrians in 729 BCE (during the reign of Tiglath-pileser III) the Erra epic was generated as a “counter-text” to Ennjma Eliš to account for the downfall of the once powerful city.112 In subsequent Neo-Assyrian memory it then spawned a new generation of “counter-texts,” where “through a simple act of ‘textual usurpation,’ the text had become the mythological blueprint for the new age of Assyrian imperialism.”113 Far more than just a legendary account of the divine origins of human life, Ennjma Eliš was dramatically revised to reÀect new and challenging political circumstances, by different rulers,114 for over 1,000 years, during which time it was clearly subject to “large-scale revision.”115 That the primeval history in the Pentateuch was but one such “counter-text,” which itself then became a target for revision in the Gospel of John and in the book of Acts does not make it exceptional in this respect.116 110. Ibid. 111. E. Frahm, “Counter-texts, Commentaries, and Adaptations: Politically Motivated Responses to the Babylonian Epic of Creation in Mesopotamia, the Biblical World and Elsewhere,” Orient 45 (2010): 3–34 (4). Furthermore, “the epic was meant for wide distribution, as its concluding lines demonstrate, and played an important role in the cult of Babylon, where it was recited on several ritual occasions during the year. Most importantly, it served as the cultic legend of the AkƯtu festival, which took place at the beginning of the year in the month of Nisannu and culminated in a procession of Marduk to the AkƯtu house north of Babylon” (5). 112. Where “the epic claims, in complete contrast to everything that is said in Ennjma Eliš, that it was Marduk who had brought about the deluge, the archetypal catastrophe that had befallen mankind in an earlier age. Now, by yielding to Erra, Marduk allows the forces of chaos to return yet again. Cosmological order, represented by the harmonious con¿guration of the heavenly bodies, falls apart, and the political order hitherto guaranteed by a strong Babylonian king is shattered” (ibid., 7). 113. Ibid., 8–9. 114. As Frahm (ibid., 22) explains: “the epic was used again and again, both in Babylonia and abroad, to express, legitimize, or delegitimize ideas of absolute power, divine as well as human.” 115. Millard, “A New Babylonian ‘Genesis’ Story,” 127. 116. Frahm, “Counter-texts,” 23. 1

1. Introduction

27

Having justi¿ed why a comparative method is appropriate, my use of this approach is based on Jeffrey Tigay’s two key questions: “In what form was Mesopotamian literature known outside of Mesopotamia? How much do the peripheral versions resemble the native Mesopotamian versions, to which they are indisputably related”?117 I have adapted his questions as follows: 1. In what context were the relevant biblical laws (namely circumcision, corporal punishment, the piercing of a slave’s ear and the marking of God’s name) known outside of their Covenant Code, Priestly and Deuteronomic formulations? 2. How much do these “peripheral” traditions resemble their ¿nal presentation in the Masoretic Text, to which they are clearly related? The relevant “peripheral” traditions examined will include accounts from the biblical narratives, as well as the exegetical voices of Israel’s prophets, psalmists and subsequent historiographical records and wisdom literature. Where available, relevant para-biblical, pseudepigraphic, apocryphal and rabbinic sources also will be evaluated. With this explanation in place, it is now time to explore the laws themselves, where the initial question relating to Gen 17:1–21 remains: how did circumcision inscribe the divine destiny of each Israelite male upon his body, and in what way did this de¿ne the ethnic boundaries of his nation?

1

117. Tigay “On Evaluating Claims,” 254 (italics original).

Chapter 2

THE PRIESTLY REQUIREMENT OF CIRCUMCISION

2.1. Egyptian and Western Semitic Precedents The rite of male circumcision provides a unique example of a biblical dis¿gurement implemented on a normative basis in contemporary Jewish societies.1 As a requirement for an eight-day-old newborn boy, it attracts inevitable controversy, where the salient question remains: “Does anyone ever have the right to request or perform irreversible alteration of the body of a nonconsenting person for any reason other than absolute medical necessity? In short, is circumcision a human rights violation?”2 Without engaging in this debate, this discussion will identify the possible origins of this rite, with a view to understanding its purpose in biblical law. Here the prevalence of circumcision in antiquity simply indicates that it was a rite known to the intended audiences of Gen 17:1– 21: a text which is understood to be a composite product of the Priestly school of Pentateuchal scribes (known also as the Priestly source, or simply “P”),3 although it is equally notable that in non-Priestly sources 1. Circumcision being “the act of cutting the foreskin of the male genital,” in “Circumcision,” in Dictionary of Judaism in the Biblical Period (ed. J. Neusner and W. S. Green; Macmillan Library Reference; New York: Simon & Schuster, 1996), 121. For an account of the additional rabbinic requirements, see Nahum Sarna’s “Excursus 12: Circumcision,” in ġĐĠćğĈ Genesis: The Traditional Hebrew Text with the New JPS Translation and Commentary (Philadelphia: JPS, 1989), 385–87 (387). 2. L. B. Glick, Marked in Your Flesh: Circumcision from Ancient Judea to Modern America (Oxford: Oxford University Press, 2005), 279. 3. For this purpose it is therefore not necessary to date this source, or school, to either the sixth or ¿fth centuries BCE (as a response to the Babylonian destruction of the temple in 586 BCE), as is the most prevalent view, nor to the mid-tenth to eighth centuries BCE, as Israel Knohl has proposed in The Sanctuary of Silence: The Priestly Torah and the Holiness School (Minneapolis: Fortress, 1995). One need only be aware that Gen 17 is “a ‘composition stratum’ which certainly had its own unmistakable features, but which at the same time only acquired its form when it was worked into a whole with the other texts (all of them older),” R. Rendtorff, The Covenant Formula: An Exegetical and Theological Investigation (trans. M. Kohl;

2. The Priestly Requirement of Circumcision

29

circumcision was not observed by Moses,4 let alone by the Israelites who entered the Promised Land.5 Tantalizingly, “the origins of the practice are irretrievable.”6 Herodotus suggests that circumcision originated in Egypt and spread through the Mediterranean towards Phoenicia, explaining that the rite was instituted as a means of maintaining purity.7 In his Questions and Answers on Genesis, Philo understands circumcision as a necessity for drawing man closer to God: “the male has more pleasure in and desire for mating than does the female and he is more ready for it. Therefore he rightly leaves out the female and suppresses the undue impulses of the male by the sign of circumcision,”8 where the rite demonstrates enkrateia (self-control).9 In Egypt the earliest evidence of male circumcision is attested in the wall relief in the tomb of Ankhmahor, at Saqqara, 15 miles south-west of Cairo,10 Here circumcision is explicit as an initiation rite at puberty, Edinburgh: T. & T. Clark, 1998), 14. See more recently S. Olyan, “An Eternal Covenant with Circumcision as Its Sign: How Useful a Criterion for Dating and Source Analysis?,” in The Pentateuch: International Perspectives on Current Research (ed. T. B. Dozeman et al.; FAT 78; Tübingen: Mohr Siebeck, 2011), 347– 58. 4. Exod 4:24–26 will be shortly examined in “A Substitution Rite for Child Sacri¿ce?” 5. Joshua arranges to circumcise of the adult male Israelites, since “none of the people born after the exodus, during the desert wanderings, had been circumcised” (Josh 5:5). 6. R. G. Hall, “Circumcision,” ABD 1:1025–31 (1025). 7. Herodotus, Hist. 2.104 is discussed also in S. Jacobs, “Expendable Signs: The Sign of the Rainbow and the Covenant of Circumcision at Qumran,” in Lange, Tov and Weigold, eds., The Dead Sea Scrolls in Context, 563–75 (573). 8. Philo, QG 3:47. This symbolic explanation of the rite is emphasized also in Abr. 16:92. In Spec. Leg. 1:4–7 and 9–10 the following bene¿ts are identi¿ed. First: Circumcision prevents severe disease of the prepuce. Second: it encourages physical cleanliness. Third: as the circumcised member generates human life, it recalls the function of the heart, which generates human thought. Fourth: it enhances fertility and the increases abundant offspring. Fifth: it represents the removal of superÀuous pleasure, conceit and the evil belief that humans alone create life. See also Nina Livesey’s treatment in Circumcision as a Malleable Symbol (WUNT 2/295; Tübingen: Mohr Siebeck, 2010), 46–58. 9. See Maren Neihoff, “Circumcision as a Marker of Identity: Philo, Origen and the Rabbis on Gen 17:1–14,” JSQ 10 (2003): 89–123 (101); Livesey, Circumcision as a Malleable Symbol, 58–74. 10. Ankhmahor was a minister in the Sixth Dynasty to the Pharaoh Teti (2345– 2333 BCE). See N. Kanawati and A. Hassan, The Teti Cemetery at Saqqara. Vol. 2, The Tomb of Ankhmahor (Australian Centre for Egyptology 9; Warminster: Aris & Philips, 1997), 49–50. 1

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where it is performed on two young boys by a Priest, as is clear from its accompanying inscription.11 From the First Intermediate Period (ca. 2300 BCE), the Naga-Ed Dêr Stela also states: “When I was circumcised? with 120 men there was none whom I struck and none who struck me among them; there was none whom I scratched and none who scratched me among them.”12 A separate cure for post-operative bleeding from circumcision is also mentioned in the Eber Papyrus (1550 BCE).13 Uncircumcised phalli are also counted in the Great Karnak Inscription, which celebrates the Egyptian victory over the Libyans during the reign of Merneptah in the nineteenth dynasty. After the triumphal return of soldiers, an account of the dead and captive prisoners is enumerated, listing the numbers of uncircumcised phalli of the defeated troops.14 A further reference to circumcision is found in the sixth-century inscription on the Piye Stela,15 which explains that the conquering Nubian soldiers were unable to enter the palace because they were uncircumcised.16 11. The text of the inscription includes a dialogue between the mortuary priest performing the circumcision and the boy, with separate instructions provided for the priest’s assistant. See S. Grunert, “Nicht nur sauber, sondern rein. Rituelle Reinigungsanweisungen aus dem Grab des Anchmahor in Saqqara,” Studien zur Altägyptischen Kultur 30 (2002): 137–51. 12. D. Dunham, Naga-ed Dêr Stelae of the First Intermediate Period (Boston: Museum of Fine Arts, 1937), 103–4. The question mark appears in the original, perhaps indicating a restored or tentative reading. 13. “Remedy for a prepuce (?) which is cut off [circumcised] and whence whose blood comes out: dzrt, honey, cuttle-bone, sycamore, fruit of dzja,” in Papyrus Ebers: The Greatest Egyptian Medical Document (trans. B. Ebbell; Copenhagen: Levin & Enjar Munksgaard, 1937), 103. 14. ARE 2:248. Severed hands and phalli are also separately enumerated in the Karnak Inscription, and also at Medinet Habu. These post-mortem retributive mutilations will be relevant later in the discussion of talion. 15. The monument recalls the victory of King Piye (728–727 BCE) against a coalition of Delta princes and describes his accession to the Egyptian throne. See Miriam Lichtheim, “The Victory Stela of King Piye (Piankhy),” in The Context of Scripture. Vol. 2, Monumental Inscriptions from the Biblical World (ed. W. W. Hallo et al.; Leiden: Brill, 2000), 42–51 16. As also Isa 52:1, “Awake, awake, O Zion! Clothe yourself in splendour; Put on your robes of majesty, Jerusalem, holy city! For the uncircumcised and the unclean shall never enter you again,” and also Ezek 44:7–9, which concludes: “Thus saith the Lord God: Let no alien, uncircumcised in spirit and in Àesh enter My sanctuary—no alien whatsoever among the people of Israel.” Within the biblical record, it is only the Philistines who are characterized as uncircumcised (Judg 14:3; 15:18; 1 Sam 14:6; 17:26, 36; 18:25, 27; 31:4; 2 Sam 1:20; 3:14). See further P. Galpaz-Feller, “The Stele of King Piye: A Brief Consideration of ‘Clean’ and ‘Unclean’ in Ancient Egypt and The Bible,” RB 102 (1995): 506–21 (507). 1

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Despite the consensus of these sources, there is nothing to indicate that circumcision was binding on all Egyptian males. As Jack Sasson suggests, its implementation may have been determined by hierarchical rank or title in ancient Egyptian society, if not limited also to the Priestly classes.17 The most relevant point here is simply that male circumcision was attested in Egypt, yet at the same time “there is no clear evidence that East Semitic peoples such as the Akkadians, Assyrians and the Babylonians practised circumcision.”18

Figure 2. The “Battle¿eld Palette” (EA 20791 in Gallery 64, Case 6). Courtesy of the Trustees of the British Museum.

In terms of Canaan, au contraire Herodotus, Jack Sasson suggests that circumcision may have originated in the Western Semitic Levant and moved in the opposite direction, southwards, towards Egypt.19 This he infers from images portrayed on a Late Predynastic Egyptian ceremonial relief (ca. 3150 BCE) on a mudstone palette, which “shows bearded, 17. “Still remaining to be decided is the question of whether circumcision among the Egyptians was voluntary or universally imposed; whether it was adopted by the common populace or reserved for a high caste which included the pharaoh, his priests, his courtiers and his immediate servants,” Jack Sasson, “Circumcision in the Ancient Near East,” JBL 85 (1976): 474–76 (474). See also Galpaz-Feller, “The Stele of King Piye,” 516–18. 18. P. King, “Circumcision: Who Did It and Who Didn’t and Why,” BAR 32, no. 4 (2006): 48–55 (49). 19. Sasson, “Circumcision,” 472–76. 1

32

The Body as Property

circumcised captives being devoured by vultures and by a lion, presumably the symbols of Nilotic power. Those represented, it has been observed,20 were not Egyptians. Rather, they were strangers, enemies of the king who, in the guise of a proud lion, sought their extermination.”21 While it is not unreasonable to maintain that the lion is a representation of the Pharaoh, it is not at all clear on what basis the nonEgyptian enemies can be identi¿ed as “circumcised Syrians,”22 nor is it clear how their (lack of) dress and hair style can be conclusively deemed as Levantine. Notwithstanding this dif¿culty, there is further evidence from the ‘Amuq Valley, in Northern Syria, dating from the Early Bronze (Phase F) ca. 3200 BCE, which indicates that a well-developed metal industry emerged producing new Àints, particularly a type of blade known as “Canaanean.” In addition to these Àints, from among the bronze ¿gurines excavated in the subsequent layer, Phase G, three male warriors appear circumcised in the ancient Israelite manner, that is, with the corona of the penis completely exposed.23 Sasson concludes: As a last argument, it may be appropriate to point out that the Egyptian word for the term “foreskin” qrn.t, is beyond doubt a phonetic rendering of the Semitic ©rlt, Hebrew orlƗh. This in itself may be an indication that the concept of circumcision travelled from the north to the south and not the other way around.24

A circumcised terracotta phallus, excavated at Tell Gezer from the late twelfth to early eleventh century BCE,25 again con¿rms the practice of circumcision in the pre-history of Priestly tradition, demonstrating that it was a well-established rite in the antecedents of biblical memory.26 Moving north to Ugarit (modern-day Ras Shamra in Syria), however, it is the narrative context and symbolism of the rite that generates particular interest. Nick Wyatt explains the relevance of these literary correlations to the characterization of Abraham, where “the theme of the 20. See F. Jonckheere, “La circoncision des anciens égyptians,” Centaurus 1 (1951): 217. 21. Sasson, “Circumcision,” 473. 22. Ibid., 476. 23. R. J. Braidwood and L. S. Braidwood, Excavations in the Plain of Antioch, vol. 1 (Chicago: Oriental Institute, 1960), 240–46 and Plates 56–64. 24. Sasson, “Circumcision,” 476. 25. A photograph of this is available in King, “Circumcision,” 50. 26. Laurence Hoffman’s suggestion, that circumcision represented a form of ceremonial castration, which was implemented in order to establish both parental and tribal authority, is not entirely convincing. See L. H. Hoffman, Covenant of Blood: Circumcision and Gender in Rabbinic Judaism (Chicago Studies in the History of Judaism; University of Chicago Press, 1996), 39–41.

1

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aged, childless patriarch who miraculously begets a son is a direct echo of the hierogamic tradition of the Ugaritic text KTU 1.23.”27 In this context “the youthfulness of the child circumcised, so soon after birth, relates directly to his birth as the renewal of the community, and at the same time, being removed from the overtly sexual context of marriage, makes the passage one of spiritual transformation, from the profane and natural world into the sacred, hieratic one of the confessing people of God.”28 From an anthropological perspective the Ugaritic symbolism is noteworthy, where Howard Eilberg-Schwarz explains that “the removal of the foreskin symbolically readies the organ for reproduction.”29 This symbolism enabled the cut of infant circumcision to become associated metaphorically with the horticultural pruning of immature fruit trees,30 as noted elsewhere in Priestly memory.31 In the context of KTU 1.23, El’s proli¿c sexual activity was preceded by the critical genital cut: “the vine pruners prune him, the vine binders bind him, they cause his shoots to fall like a vine.”32 Wyatt adds 27. N. Wyatt, “Symbols of Exile,” Svensk Exegetisk Årsbok 55 (1990): 39–58 (48). Likewise, Kenton Sparks, Ancient Texts for the Study of the Hebrew Bible: A Guide to the Background Literature (Peabody, Mass.: Hendrickson, 2005), 295, observes: “Two similarities between Aqhat and the Hebrew Bible are striking. First, Aqhat and Kirta share with the Hebrew patriarchal narratives the motif of acquiring heirs in the face of barrenness, and in both traditions it is the chief god El who can miraculously overcome the threat of human infertility.” A translation of KTU 1.23 is published in N. Wyatt, Religious Texts from Ugarit: The Words of Ilimilku and His Colleagues (Shef¿eld: Shef¿eld Academic, 1998), 324–35. 28. Wyatt, “Symbols of Exile,” 48. See also N. Wyatt, “Circumcision and Circumstance: Male Genital Mutilation in Ancient Israel and Ugarit,” JSOT 33 (2009): 405–31 (424–25). 29. H. Eilberg-Schwartz, The Savage in Judaism: Anthropology of Israelite Religion and Ancient Judaism (Bloomington: Indiana University Press, 1990), 148. 30. Nick Wyatt suggests that “this association of ideas between circumcision and fruit production is Israel and Judah is probably not an innovation, but part of the traditional metaphorical furniture of the West Semitic languages,” N. Wyatt, “The Pruning of the Vine in KTU 1.23,” UF 24 (1992): 425–27, repr. Word of a Tree and Whisper of A Stone and Other Papers on Ugaritian Thought (Gorgias Ugaritic Studies 1; Piscataway, N.J.: Gorgias, 2007), 53–57 (55). 31. In Lev 19:23 the immature fruit trees are designated as “uncircumcised,” where the verb ēğę, “to count as foreskin, i.e. as uncircumcised” (BDB, 790), is rendered as “forbidden,” as follows: “When you enter the land and plant any tree for food, you shall regard its fruit as forbidden.” See discussion also the discussion D. Bernat, Sign of the Covenant: Circumcision in the Priestly Tradition (Ancient Israel and Its Literature 3; Atlanta: SBL 2009), 91–96 (“Leviticus 19: Foreskinned Fruit Trees”). 32. Wyatt, “The Pruning of the Vine,” 53. 1

34

The Body as Property It still allows puns and double-entendres between the staff the god holds at this point and both the staff he later throws away, perhaps at the arrow he shoots at the bird and certainly his own “staff,” that is, his penis. Uncircumcised he is unfertile. What is about to be pruned is an infertile plant, transparently a metaphor for his penis, which after the ritual he will address to its proper function.33

In addition, the biblical characterization of the Nazirites, described as đĐğčė ĐĈėę, “untrimmed vines,”34 is equally suggestive. Eilberg-Schwartz maintains that this metaphor provides “an incontrovertible instance where the priests recognise an analogy between not cutting part of the human body (i.e. the hair) and not pruning grape vines.”35 This association is explicit also in midrashic tradition,36 where the Tan­umaYelammedenu (commenting on Gen 17:1) indicates: I will establish my covenant between me and thee: He [i.e. Abraham] was not aware of which part of his body was to be circumcised and so the Holy One Blessed Be He indicated the place of circumcision when he said: And I will make thee exceedingly fruitful. That is to say at the place through which you increase and multiply you are to be circumcised. However Bar Kappara was of the opinion that Abraham decided upon the place of circumcision by analogy. He said to himself: “Which part of the tree is subject to the law of ċēğę [Orlah]?37 It is that part of the tree which produces fruit, and so I must be circumcised at the place from which I will produce my fruit.38

This metaphor is developed in Pirke de Rabbi Eliezer, where the sacri¿cial role of the fruit in Lev 19:23 informs the symbolism of the selection of Isaac (as the fruit of Abraham circumcised loins) as follows: 33. Ibid., 54. 34. Lev 25:5 states, “you shall not reap the aftergrowth of your harvest, or gather the grapes of your untrimmed vines.” A similar sentiment is expressed in 25:11, where the prohibition for harvesting untrimmed vines in the jubilee year appears. See also Judg 9:13; Isa 5:6; Ezek 15:2, 6; Joel 1:12; 2:22. 35. Eilberg-Schwartz, The Savage, 151. 36. Likewise R. Huna in the name of Bar Qappara states: “Just as in the case of a tree, when the word ‘foreskin’ [ċēğę] is used it refers to the place which produces fruit, so too here ‘foreskin’ with reference to man speaks of a place which produces fruit,” ċĈğ ġĐĠćğĈ Genesis Rabbah: The Judaic Commentary to the Book of Genesis: A New American Translation, Vol. 1, Parashiyyot One Through Thirty-Three (ed. J. Neusner; Brown Judaic Studies 104–106; Atlanta: Scholars Press, 1985), 160. 37. Although the term ċēğę (Orlah) designates the prohibition of pruning young fruit trees, is also the name of the Mishnaic tractate in which the laws of circumcision are discussed. 38. Midrash Tan­uma-Yelammedenu: An English Translation of Genesis and Exodus from the Printed Version of Tan­uma-Yelammedenu (trans. S. A. Berman; Jersey City: Ktav, 1995), 38, where the italicized texts represent biblical citations. 1

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Rabbi Ze’era taught: The tree which is mentioned here is none other than the vine tree. If they do not cut off from the tree its fruit of the ¿rst three years, all of the fruit which it yields will be gleanings ¿t to pluck off and not good; and its wine will be disquali¿ed for the altar; but if they cut off from the tree the fruit of the ¿rst three years, all the fruit which it yields will be good for the sight, and their wine will be selected to be brought upon the altar. So with our father Abraham: before he was circumcised, the fruit which he produced was not good, and his wine was chosen to be put upon the altar like wine for a libation, as it is said, “And wine for the drink offering,” as Numbers 15:5.39

In this midrash the analogy of Abraham’s “good” fruit (Isaac) is placed in opposition to his “not good” fruit (Ishmael), a metaphor that generates particular dilemma for the rabbinic sages: How could Isaac represent the inherently perfect cult libation, when the authorized text informs us that he was never sacri¿ced, but rather that Abraham took a nearby ram “and offered it up as a burnt offering in place of his son?” (Gen 22:13). This question will be addressed shortly, but for the moment it is necessary to return to the present discussion: How did circumcision (and its analogy of trimming immature fruit trees, to encourage vigorous growth) guarantee that the Israelites would achieve “the spiritual transformation, from the profane and natural world into the sacred, hieratic one of the confessing people of God”?40 2.2. Circumcision and the Covenantal Promises to Abraham The search for this “indelible message about the meaning of manhood”41 begins in the patriarchal narratives,42 where the covenant of circumcision is the culmination of a series of profuse, yet unconditional promises to Abraham. In this context the purpose of the rite in Gen 17:9–14, speci¿ed eight days after birth (rather than at the age of thirteen), restricted the covenantal blessings exclusively to the descendants of Isaac, while simultaneously excluding Ishmael and the sons of Keturah from those 39. Pirke de Rebbe Eliezer: According to the Manuscript Belonging to Abraham Epstein of Vienna (trans. Gerald Friedlander; New York: Blom, 1971), 207. 40. Wyatt, “Symbols of Exile,” 48. 41. S. Keen, Fire in the Belly: On Being a Man (New York: Bantam Dell, 1991) 30–31, cited by J. Steven Svoboda, “Genital Integrity and Gender Equity,” in Bodily Integrity and the Politics of Circumcision: Culture, Controversy and Change (ed. G. C. Denniston et al.; New York: Springer Science, 2006), 149–64 (155). 42. Liverani, Israel’s History, 261: “The patriarchal world, which lies outside of historical time, according to the genre of stories that portray it, is nevertheless composed in a continuous narrative, framed by genealogical sequence and, most of all, intended as an essential block in a sequence of events (within the scheme of promise and ful¿lment) that functions within the ideological framework of Israel.” 1

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promised to Abraham in Gen 12:1–9; 15:4–18 and 17:4–21. This discussion will identify the literary and legal elements in the biblical text that clarify this restriction, and its accompanying exclusions. God’s promises commence in Gen 12:1–9, specifying descendants who will inhabit their own land (12:7) and become a great nation (12:2). Abram, as he was then called, will be the recipient of in¿nite blessings, with his name made great. He is to be the conduit through which all humanity will achieve divine benevolence: “I will bless those who bless you, and curse him that curses you; and all the families of the earth shall bless themselves by you” (Gen 12:3). In the absence of an heir-apparent, Abram’s successor through whom these promises will materialize initially looks to be his nephew Lot.43 The blessings continue to unfold in a subsequent vision in Gen 15, in which an intriguing exchange is recorded. Once again, God assures Abram of future blessings: “Fear not Abram, I am a shield to you: Your reward shall be very great” (Ċćĕ ċĈğċ đğĒĠ đē Ėėĕ ĐĒėć ĔğĈć ćğĐġĀēć, Gen 15:1). Here Abram clearly fears not to remind God that his previous promises have failed to materialize,44 and asks: “ ‘O Lord God, what can You give me, seeing that I shall die childless, and the one in charge of my household is Dammesek Eliezer’.” Indeed Abram has no qualms about pressing God further: “Since you have granted me no offspring, my steward will be heir” (Gen 15:2–3). Reassurance that “none but your very own issue shall be your heir” (Gen 15:4), is provided, as is the promise that Abram’s descendants would become as in¿nite as the stars in the heaven (Gen 15:5). Yet the patriarch is still not entirely convinced. His trust in the divine word appears surprisingly absent, to the extent that God is forced to repeat his assurance of the gift of land to a still-doubting Abram, who now wants more than unful¿lled promises and asks, “O Lord, God, how shall I know that I am to possess it”?45 The proof that Abram desires is evidenced upon his cutting of a heifer, goat, ram, turtledove and a young bird as follows: “He brought Him all these and cut them in two,46 placing each half opposite the other; but he did not cut up 43. Lot is not explicitly identi¿ed as Abram’s heir in Gen 12:4–5, but this is implied since mention of Eliezer is not made until 15:2. 44. Namely those made in Gen 12:1–7. 45. See Gen 15:7, where Abram asks: ċėĠğĐć ĐĒ ęĊć ċĕĈ. 46. Where the phrase đČġĈ Ĕġć ğġĈĐČ in Gen 15:10 constitutes the basis of the subsequent rabbinic designation of this covenant as the ĔĐğġĈċ ĖĈ ġĐğĈ, or “the covenant between the pieces,” where the root ğġĈ “to cut in two” (BDB, 144) is related to the Arabic cognate, meaning also to cut prematurely or extirpate by cutting, as indicated in S. A. Aldeeb Abu-Sahlieh, Male and Female Circumcision Among Jews, Muslims and Christians: Religious, Medical Social and Legal Debate 1

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the bird” (Gen 15:10). Divine activation was perceived “when the sun set and it was very dark, there appeared a smoking oven and a Àaming torch which passed between those pieces” (Gen 15:17). Yet it is not entirely clear whether this ritual constituted a formal sacri¿ce, since there is no altar, no mention of the sprinkling of blood,47 and no acknowledgment, whether the animals are either eaten or burnt.48 The sequence is, nonetheless, evocative of the royal land-grant treaty common in the ancient Near East, with which a king would bestow a gift of land to a vassal as a reward for loyal service, as Nahum Sarna explains: The Hebrew term for covenant-making is k-r-t berit, literally “to cut a covenant” (v. 18).49 The corresponding phrase is very widely used in one form or another in the ancient world. The exact Aramaic equivalents are g-z-r !dy, found in the S¿re treaty from Syria and the lk k-r-t, which appears in a magical text from Arslan Tash in Turkey.50 The Greek horkia temnein and Latin foedus ferire/ictum express the same practice. In the Mari texts, “to kill a donkey foal” (¨ayarum/ayarum qatƗlum/šuqtalum) is to conclude a covenant. At Aleqh they “cut the neck of a sheep” (kišad/immerum iÓbu¨) for the same purpose.51

Formally, a ġĐğĈ or covenant is de¿ned as an agreement between two parties that outlines the general responsibilities each has to the other and (Warren Centre, Pa.: Shangri La, 2001), 8. Shaye Cohen, Why Aren’t Jewish Women Circumcised? Gender and Covenant in Judaism (Berkeley: University of California Press, 2005), 10, translates ĔĐğġĈċ ĖĈ ġĐğĈ as “the covenant between the sections.” Tikva Frymer-Kensky, “Covenant: A Jewish Biblical Perspective,” in Studies in Biblical and Feminist Criticism (Philadelphia: JPS, 2006), 133–57 (141), renders: “the covenant among the carcasses.” 47. As was evident in Exod 24:8, for example. 48. According to Menahem Haran, “The BƟrît ‘Covenant’: Its Nature and Ceremonial Background,” in Tehillah le-Moshe: Biblical and Judaic Studies in Honor of Moshe Greenberg (ed. M. Cogan, B. Eichler and J. Tigay; Winona Lake: Eisenbrauns, 1997), 202–20 (218–19): “the idea that the cut-up animal pieces (between which only the sovereign party making the promise and commitment can pass) are a sacri¿ce should be totally rejected”. 49. I.e. ġĐğĈ ġğĒ in Gen 15:18. 50. Where the authenticity of the amulets from Aslan Tash in Turkey has been recently con¿rmed in J. van Dijk, “The Authenticity of the Arslan Tash Amulets,” Iraq 54 (1992): 65–68. 51. Sarna, ġĐĠćğĈ Genesis, 114. Moshe Weinfeld, “Covenant Making in Anatolia and Mesopotamia,” JANES 22 (1993): 135–99 (138), adds: “Passing between pieces of cut animals during the taking of an oath, which is attested in ancient Israel is also found in ancient Greece. In the laws of Plato we read that making a commitment in connection with electing a candidate to the assembly was carried out by passing through pieces of the sacri¿ce while approaching the altar.” 1

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also any limitations to their control, authority or power.52 It “embraces a treaty as an instrument of international diplomacy, a compact between a king and his subjects, a pact that de¿nes mutual understanding and responsibilities between two individuals, and it is even used of matrimony.”53 Since there is no independent, external evidence of any biblical ġĐğĈ preserved in epigraphic or monumental forms, Mendenhall and Herion suggest that these are “enacted realities,” rather than historically objective ones: “covenant is an enacted reality that is either manifested in the concrete choices individuals make, or not. The rule of God is de¿ned with respect to those whose concrete choices arise out of certain positive values that actually transcend culturally bound norms and politically enforced laws.”54 Both conventional treaties and these “enacted realities” were implemented by commonly recognised rituals, through the con¿rmation of an oath,55 with a solemn meal,56 or by offering sacri¿ces.57 As such, the rati¿cation of formalities in 15:17 was also signi¿ed by the act of dividing the designated animal.58 The unstated intimidation conveyed by the symbolism in this rite was evident,59 even though Abraham himself was not sprinkled with the dead animals’ blood. 52. G. E. Mendenhall and G. Herion, “Covenant,” ABD 1:1179–202 (1179). 53. N. M. Sarna, Exploring Exodus: The Origins of Biblical Israel (New York: Schocken, 1996), 134. See also G. W. Buchanan, “The Covenant in Legal Context,” in The Concept of The Covenant in the Second Temple Period (ed. S. E. Porter and Jacqueline C. R. de Roo; JSJSup 71; Leiden: Brill, 2003), 27–52. 54. Mendenhall and Herion, “Covenant,” 1:1201. 55. As indicated (for example) in Gen 21:22; 26:26 and Deut 29:9. 56. As in Gen 26:30 and 31:54. 57. As in Exod 24:4. 58. Rashi (Rabbi Shlomo Yitshaki, 1040–1125, Troyes, Northern France) emphasizes the physical signi¿cance of Abram’s action in Gen 15:10: “[Gen 15:10] ‘He cut them,’ [This indicates that he] divided each [animal] in two [parts]. [Since] the literal meaning of this biblical verse is not [to be] precluded” (ēĒ ĞēĎ Ĕġć ğġĈĐČ ČďČĠě ĐĊĐĕ ćĝČĐ ćğĞĕċ ĖĐćČ ĔĐĞēĎ ĐėĠē ĊĎć). Here Rashi clari¿es that this interpretation of Gen 15:10 is also based on his understanding of Jer 34:18: “I will make the men who violated My covenant, who did not ful¿ll the terms of the covenant, which they made before Me [like] the calf which they cut in two so as to pass between the halves.” 59. In comparative terms this enacted reality is evoked explicitly (for example) in Esarhaddon’s Succession Treaty, dated to May 672 BCE, where one of the ceremonial curses (§70–71) provides: “Just as young sheep and ewes and male and female spring lambs are slit open and their entrails rolled down over their feet, so may (your entrails) and the entrails of your sons and daughters roll down over your feet. [If you] should sin [against] this [trea]ty of Esarhaddon, King of Assyria,” S. Parpola and K. Watanabe, Neo-Assyrian Treaties and Loyalty Oaths (SAAS 2; Helsinki: Helsinki University Press, 1988), 52. 1

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Accordingly, William Propp explains: “Covenantal bloodletting has another function: it represents the sanguinary fate that awaits the traitor to the pact. In 24:8,60 sprinkling the people is as much as to say, ‘If you do not keep the Covenant, your blood is forfeit like this blood (Saadiah apud Ibn Ezra).”61 Abraham’s childlessness, together with his ritual cutting of the carcasses recalls additionally Judg 13:19–20, where the annunciation of a son (Samson) to a heretofore barren (unnamed) woman and her husband (Manoah) is made by an angel of the Lord.62 In this account a kid goat and a meal offering were offered up on the rock of the Lord: “and a marvellous thing happened, while Manoah and his wife looked on. As the Àames leapt to the sky, the angel of the Lord ascended in the Àames of the altar.”63 Yet not all exegetes accept that the ceremony and blessings in Gen 15:1–21 constituted a separate covenant.64 Jackson maintains that “as presented by the text, the animals that are halved are not presented as a berit ceremony: they are produced on God’s command directly in response to Abraham’s request for reassurance, before any further promises and well before any mention of berit.”65 The logic of this position was suggested earlier by Rabbi Samuel b. Nahmani in b. Ned. 32a: “Why was our father Abraham punished and his children destined to slavery in Egypt? Samuel then replied: Because he went too far in testing the promises of the Lord, as it says in Gen 15 (where Abraham asked), ‘How shall I know that I shall inherit it?’ ”66 60. Cf. Exod 24:8: “Moses took the blood and dashed it on the people and said, ‘This is the blood of the covenant that the Lord now makes with you concerning all these commands’.” 61. W. H. C. Propp, Exodus 19–40: A New Translation with Introduction and Commentary (AB 2A; New York: Doubleday, 2006), 308. 62. Paralleling the annunciation of Isaac to Sarah, in Gen 18:2–8. 63. Similarly in Judg 6:17 Gideon asks the Lord for a sign that he will accompany him in battle against the Midianites. Thus in Judg 6:21 we ¿nd, “the angel of the Lord held out the staff that he had carried and touched the meat and the unleavened bread with its tip. A ¿re sprang up from the rock and consumed the meat and the unleavened bread.” 64. Both Nahum Sarna (ġĐĠćğĈ Genesis, 114) and Menahem Haran (“The BƟrît ‘Covenant’,” 218) consider that Gen 15:9–18 is no more than “a symbolic gesture.” 65. B. S. Jackson, Studies in the Semiotics of Biblical Law (JSOTSup 314; Shef¿eld: Shef¿eld Academic, 2000), 237. 66. Translated here as “his promises,” ČĐġČĊĕ literally means “his attributes.”

1

Why was our father Abraham punished and his children destined to slavery in Egypt? Samuel [then] replied:

ČėĐĈć ĔċğĈć Ġėęė ċĕ Đėěĕ ?ĔĐğĝĕē ČĐėĈ ČĊĈęġĠėČ ēęČĕĠ ğĕć

40

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In contradiction to Rashi, Jackson argues that the covenant in 15:18– 21 “is introduced explicitly as referring to the promise that follows, not to the sacri¿ce (if that it be) that preceded.”67 This is certainly possible in view of the parallel earlier suggested with Judg 13:19–20b, where the sacri¿cial offerings share the same fate as the dismembered animals in Gen 15:7–21 and where the annunciation of Manoah’s son in Judg 13:7 parallels that of Abram’s.68 But does this render the ceremonial in Gen 15 exclusively “a hereditary blessing,”69 when ćČċċ ĔČĐĈ (“on that day”)70 the heifer, goat, ram, turtle-dove and bird get cut (Gen 15:10) Abram did not have a son of his own, since Ishmael had yet to be born.71 Surely the crucial factor was that the designation of this gift of land as part of a fully rati¿ed covenant had to be made ćČċċ ĔČĐĈ, “on that day,”72 in order to differentiate this promise from the unconditional hereditary blessings subsequently issued to Hagar,73 bequeathed later in Gen 16:9–12? Because he went too far in testing the promises of the Lord, as it says in Genesis 15 “How shall I know that I shall inherit it?

čĐğěċĠ Đėěĕ ċ'ĈĞċ ēĠ ČĐġČĊĕ ēę Čď ġĐĠćğĈ ğĕćėĠ ?ċėĠğć ĐĒ ęĊć ċĕĈ

67. Referring to Gen 15:18–21, “On that day the Lord made a covenant with Abram, saying, “To your offspring I assign this land, from the river of Egypt to the great river, the River Euphrates: The Kenites, the Kenizzites, the Kadmonites: the Hittites, the Perizzites, the Rephaim: the Amorites, the Canaanites, the Girgashites and the Jebusites.” 68. In Gen 15:4 Abram is informed that “none but your very own issue shall be your heir.” 69. Jackson (Studies in the Semiotics, 237) concludes that this is “so explicit as a hereditary blessing.” 70. Compare ćČċċ ĔČĐĈ, “in that day,” in Gen 15:18 with the Akkadian term ištu ûmi annim, “from this day [forth],” attested in both Alalakh and Ugarit which “clearly de¿nes the perpetual character of the legal transaction” (S. A. Loewenstamm, “ĔēČę ĊęČ ċġęĕ: ‘From This Time Forth and For Evermore’,” Tarbiz 32 [1963]: 313–16 [Hebrew]). At Ugarit this constituted “the invariable opening adverbial phrase” in domestic legal texts, according to I. Márquez-Rowe, “The Legal Texts From Ugarit,” in Handbook of Ugaritic Studies (ed. W. G. E. Watson and N. Wyatt; HO, Erste Abteilung, Nahe und der Mittlere Osten 39; Leiden: Brill, 1999), 390–422 (395). For a summary of the biblical parallels, see G. M. Tucker, “Witnesses and Dates in Israelite Contracts,” CBQ 28 (1966): 42–45. 71. The birth of Ishmael is only announced in Gen 16:15–16. 72. Gen 15:18–19: “On that day the Lord made a covenant with Abram, saying: ‘To your offspring I assign this land, from the river of Egypt to the great river, the River Euphrates’.” 73. Hagar’s banishment recalls also case-law from Kirkuk (Nuzi). Here in the event of a childless marriage, the husband (Shenima) could take a Lullu concubine: “the offspring of the concubine is protected by a special clause from possible malice 1

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Comparative anthropological evidence is additionally supportive of this interpretation, where Howard Eilberg-Schwartz explains that the ritual animal-cutting also symbolized a break in the patriarchal genealogy.74 This, together with the essential Priestly raison d’être, characterized by authenticity of lineage and patriarchal descent, was necessary in order to achieve a clear-cut distinction between Abraham and his successors and to exclude all other descendants of Terah.75 It provided the means with which to disinherit not only Ishmael, but all of the subsequent children born to Abraham, that is, Zimran, Jokshan, Nedan, Midian, Ishbak and Shuah,76 and conclusively “marked a division in the genealogical line and symbolized the fecundity of Abraham and his descendants.”77 Priestly authority, dependant on patrilineal descent from Aaron,78 necessitated explicit differentiation between Abraham’s successors,79 as Nancy Jay explains: “Lineage structure is particularly ef¿cient for control and inheritance of productive property such as farmland, cattle or monopolized skills including priestly skills. These groups, transforming biological descent in the interest of social continuity, celebrate eternal

on the part of Gilimninu [Shenima’s barren wife]; the young ones of the Lullu wife shall not be sent away by Gilimninu. That is to say, G. may not expel them from the house and deprive them of an eventual share in the property,” E. A. Speiser, “New Documents Relating to Family Laws,” American Schools of Oriental Research Annual 10 (1928–29): 1–74 (22). 74. “[T]he male organ is itself a symbol of kinship in general and patrilineal descent, in particular,” according to Eilberg-Schwartz, The Savage, 168–69. 75. “Circumcision thus solved the problem that had not arisen in the case of Adam and Noah, both of whom were progenitors of lineages. Since Adam was the original human being there was no need to separate him from the ancestors who came before. As for Noah, the Àood separated him from all his ancestors and marked a new beginning for mankind,” ibid., 167. 76. Gen 25:4–6: “All these were descendants of Keturah. Abraham willed all that he owned to Isaac, but to Abraham’s sons by concubines, Abraham gave gifts while he was still living and he sent them away eastward.” 77. Eilberg-Schwartz, The Savage, 169. 78. According to N. Jay, “Sacri¿ce, Descent and the Patriarchs,” VT 38 (1988): 52–70 (55): “sacri¿cing may be the exclusive privilege of only one descent group in a society: a hereditary priesthood. In this case the ideology of genealogical purity and eternal continuity is also centred in the Priestly lineage.” 79. All the more so in the post-exilic period where, according to Frymer-Kensky “Covenant,” 144, “the emphasis of the covenant of circumcision on the relationship between the people and God, rather than on the land, may have become increasingly popular as Israel faced, and then experienced, the loss of land, during the period from the eighth to sixth centuries.” 1

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intergenerational continuity (‘throughout your generations forever’).”80 Accordingly the objective in Gen 17:1–21 was not simply to validate the future genealogy of the Israelites through Abraham, but to legitimate the succession of Isaac and to ensure that this took precedence over his ¿rst born (and ¿rst-circumcised) son, Ishmael.81 In the narrative framework, however, Abraham’s ungracious reaction on being informed that these blessings would materialize not through Ishmael but via a son born to Sarah, is jarring: “And Abraham threw himself on his face” (Gen 17:17a). With laughter that revealed “emphatic skepticism,”82 he asks: “Can a child be born to a man who is a hundred years old, or can Sarah bear a child at ninety?” (Gen 17:17b). The promises, which have initially seemed implausible, are now perceived as blatantly absurd. Abraham, the otherwise obedient recipient, collapses in laughter.83 Yet this is no laughing matter, particularly since the subject (or vassal) of the covenantal stipulations is considered as good as dead as the animal he has slaughtered if he fails to comply.84 Then “on that very day” (ċčċ ĔČĐċ ĔĝęĈ, Gen 17:26) Abraham suspends his earlier disbelief and obeys: he circumcises himself and his son, Ishmael, together with his entire household, immediately. The patriarch who had earlier “put his trust in the Lord, who reckoned it his merit” (Gen 15:6) no longer needs reassurance. Indeed, so convinced is Abraham that he is con¿dent enough to request his own personal preference: “Would that Ishmael live in your favour?” (đĐėěē ċĐĎĐ ēćęĕĠĐ Čē, Gen 17:18). Amidst these negotiations, a number of formal treaty conventions are embedded in the text, where Gen 17:1–21 witnesses striking af¿nities 80. Jay, “Sacri¿ce, Descent,” 53. Gen 17:9 speci¿es: “you and your offspring throughout the ages shall keep my covenant.” Similarly 17:12 reads: “throughout the generations every male among you shall be circumcised.” 81. See further F. E. Greenspahn, When Brothers Dwell Together: The Preeminence of Younger Siblings in the Hebrew Bible (New York: Oxford University Press, 1994). 82. R. Alter, The Five Books of Moses: A Translation with Commentary (New York: W. W. Norton, 2004), 81 n. 2. 83. In anticipation of the name Isaac, Sarna comments, “The laughter foretokens the name of the son of destiny that Sarah will bear him (v. 19),” Sarna, ġĐĠćğĈ Genesis, 126 n. 17. 84. This threat was explicit in both written and pictorial sources, as explained in I. J. Winter, “After the Battle Is Over: The Stele of the Vultures and the Beginning of Historical Narrative in the Art of the Ancient Near East,” in Pictorial Narrative in Antiquity and the Middle Ages (ed. H. L. Kesser and M. Shreve Simpson; Studies in the History of Art 16; Washington: National Gallery of Art and University Press of New England, 1985), 11–33. 1

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with Neo-Assyrian loyalty oaths, dated from the ninth to seventh centuries. The form, phraseology and style of these treaties, previously identi¿ed with Deuteronomy’s “Covenant of the Plains of Moab,” by Moshe Weinfeld,85 are highly signi¿cant, as Dennis McCarthy explains: Closer to home the historical Israel would have known a shifting system of vassal and parity alliances among its Aramean neighbours in Syria, a system of which it was itself a part, but perhaps more important and certainly more immediate for the connection between Israel and Mesopotamian legal tradition with its treaties was the inÀuence of Assyria.86 Assyria remade the political world of Syria, and Palestine, and treaties were part of the process. She had treaties with neighbours as near as Ashdod. Israel under the Omrids and after was an Assyrian vassal, and the Kings of Judah served Assyria from Ahaz on. Without doubt Israel and Judah knew the Assyrian treaties because they were party to them.”87

In this context, the formal demarcation between Isaac and Abraham’s remaining sons was symbolically ¿nalized with the requirement of circumcision, speci¿cally at the age of eight days old—unlike Ishmael, who we are told was circumcised at the age of thirteen (Gen 17:25). In concrete terms this cut visibly rati¿ed this covenant on the body of the individual Israelite male. Accordingly the Priestly covenantal legacy, transmitted exclusively through Isaac, was rati¿ed also in the Àesh of all the men in Abraham’s household.88 In the absence of any formal monument (stele, or boundary marker) con¿rming Israel’s title and possession of the land of Canaan, circumcision provided all Israelite males with a personal, physical sign, sealed in their eight-day-old Àesh to verify this inheritance. This guaranteed that each boy would grow up with his ethnic identity marked upon his reproductive organ, unlike the surrounding youths (in either Egypt or Canaan), who may have been circumcised on, 85. Weinfeld, Deuteronomy, 158–57. 86. “[F]or three centuries between approximately 900 and 600 BCE, Assyria was the major power of the Near East, ruling over the largest empire the world had ever seen. Having become rich with spoils of war and tribute of subject nations, Assyrian kings built cities, palaces, temples and public works as expressions of their power. The abundant monuments and textual records from this period reveal a maleoriented society in which politics, military affairs, religion and commerce belong primarily to the male sphere of inÀuence,” S. Melville, “Neo-Assyrian Royal Women and Male Identity: Status as a Social Tool,” JAOS 124 (2004): 37–57 (37). 87. D. J. McCarthy, Treaty and Covenant: A Study in Form in the Oriental Documents and in the Old Testament (Rome: Biblical Institute, 1981), 287. 88. Circumcision is required for the homeborn slave in Gen 17:12–13. Exod 12:44 states that “any slave a man has bought may eat of it [i.e. the Passover offering] once he has been circumcised.” 1

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or after, puberty. Thus, while the blessings and promises of Gen 12–15, enacted initially by “the covenant between the pieces,” were bestowed upon Abram and all his descendants, it is only the descendants of Isaac and then Jacob who qualify for those accompanying the covenant of circumcision in Gen 17:1–21.89 Circumcision was therefore the means by which, ¿rst, the Priestly authorities de¿ned membership of this genealogical group, as only the male descendants of Isaac, to exclude effectively any hereditary claims of Ishmael, Zimran, Jokshan, Nedan, Midian, Ishbak, Shuah and their successors. Secondly, it was the ritual cut that guaranteed the blessings of El Shaddai, the initiator of the covenant of circumcision with Abram,90 where the Àesh-cut foreskin represented the carcass of the heifer, shegoat, ram, turtle-dove and young bird that had earlier activated the divine presence in Gen 15:7. In technical terms, the rite rati¿ed the covenant between El Shaddai and Abraham, as presented in Gen 17:1–21. That circumcision was then equated with the pruning of immature fruit trees in Priestly and rabbinic traditions (to confer the anticipated bene¿ts of fertility) does not invalidate the signi¿cance of these ritual formalities. Thirdly, the rite of circumcision stipulated the requirement for unequivocal loyalty in perpetuity, “to all males throughout your generations.”91 Fourthly, the seal of this covenant was inscribed on the penis: the organ vital for the Israelite’s reproductive continuity, as understood particularly in the horticultural metaphors that continued to inform later rabbinic midrash. Finally, and not least importantly, is the interpretation of circumcision as mark which validated possession and determined

89. As indicated by God’s reply to Abraham, “As for Ishmael, I have heeded you. I hereby bless him. I will make him fertile and exceedingly numerous. He shall be the father of twelve chieftains, and I will make of him a great nation. But my covenant I will maintain with Isaac, whom Sarah shall bear to you at this season next year.” Gen 17:20–21. 90. Gen 17:1: “the Lord appeared to Abram, saying ‘I am El Shaddai’.” See also D. Biale, “The God With Breasts: El Shaddai in the Bible,” History of Religions 21 (1982): 240–56. 91. As in Gen 17:12. For the subsequent philological development of this phrase and its use in Exod 27:21; Lev 3:17; 7:36; 10:9; 17:7; 23:14, 21, 31, 41; and 24:3 as “an eternal law throughout your generations,” see Excursus I in Knohl’s, The Sanctuary of Silence, 46–55. It is in this context that the requirement to love God was speci¿ed (not as a sentimental, or a theologically idealized notion), but as an act of legal and political compliance with a king, or ruling authority, to whom the subject was subservient, as W. L. Moran has argued in “The Ancient Near Eastern Background of the Love of God in Deuteronomy,” CBQ 25 (1963): 77–87. 1

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ownership,92 which was (and remains) a key element in the subsequent rabbinic conception of this rite. Michael Stone’s comments on the tradition in 4 Ezra 6:5,93 is highly informative: “ ‘sealing’ moreover, has a variety of connotations in ancient Israel. Here we will be concerned with only one: it is a mark or guarantee of ownership. Those belonging to God are sealed in Ezek 9:4–5, as are those belonging to Christ or God in the New Testament.”94 This reality is evident in contemporary Jewish liturgical tradition, where circumcision continues to represent “your covenant which you have sealed in our Àesh,”95 to the extent that Jewish women have never been prohibited from reciting this statement during the Grace after Meals prayers, irrespective of the fact that they are not circumcised.96 Au contraire Philo: The requirement of circumcision was not originally to impose sexual restraint upon Israelite men, suppressing excessive desires or lust.97 Rather, its purpose was to formalize the promises

92. As Gen 35:15 con¿rms, where Jacob’s sons agree to Shechem’s request to formalize the relationship with Dinah on the following terms: “Only on this condition will we agree with you; that you will become like us in that every man among you is circumcised.” 93. “And before the present years were reckoned, and before the imaginations of those who now sin were estranged, and before those who stored up treasures of faith were now sealed.” 94. M. E. Stone, Fourth Ezra: A Commentary on the Book of Fourth Ezra (ed. F. M, Cross; Hermeneia; Minneapolis: Fortress, 1990), 158, identi¿es the following proof texts which indicate this function: Isa 44:5; Deut 6:8; 11:18; Apoc. Elij. 1:9; Odes Sol. 8:13, 19; 2 Cor 1:22; Eph 1:13; 4:30; Rev 7:2–3; 9:4 in Stone, Fourth Ezra, 158 n. 107. Further discussion of “those belonging to God” will be made in Chapter 4, where the legitimate ownership of both the Israelite and his slave are examined. 95. ČėğĠĈĈ ġĕġĎĠ đġĐğĈ ēęČ is recited in the second paragraph of the contemporary “Grace After Meals,” in J. Sacks, The Authorized Daily Prayer Book of the United Hebrew Congregations of the Commonwealth (4th ed.; original trans. S. Singer; London: Harper Collins, 2006), 760–61. Likewise in b. Shab. 137b “and he sealed his offspring with the sign of the holy covenant,” and similarly in the y. Ber. 9:14c “sealed with the sign of the covenant.” 96. See S. J. D. Cohen, “ ‘Your Covenant That You Have Sealed in Our Flesh’: Women, Covenant and Circumcision,” in Studies in Josephus and the Varieties of Ancient Judaism: Louis H. Feldman Jubilee Volume (ed. S. J. D. Cohen and J. J. Schwartz; Ancient Judaism and Early Christianity 67; Leiden: Brill, 2007), 29–42. 97. As in sexual restraint is required exclusively for prohibited physical relationships—namely those which would involve a blood relative (Lev 18:7–19), a married woman (Exod 20:14; Lev 18:20; Deut 5:18) a same-sex encounter (Lev 18:22) or bestiality (Lev 18:23). No quantitative limits restrict the sexual assault of 1

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bestowed to Abraham (not least of which was his inheritance of land) in concrete, physical (yet entirely personal) terms with each successive male. This guaranteed that any subsequent entitlement to this legacy was transferred only to the Priestly-approved legitimate male successors, that is, the descendants of Isaac and then Jacob, who circumcised their sons (unlike Ishmael) at the age of eight days old. This admittedly differs from the recent interpretation of Andreas Ruwe, who has suggested that circumcision functioned biblically as an inter-ethnic symbol of peace, by virtue of the fact that it was prevalent among Israel and Judah’s neighbours.98 Nor is it necessary to concur with insights from recent psychoanalytical (Freudian) theory, “that circumcision represents the literal embodiment of male patriarchal authority or, in Lacian terms, the inscription of the phallus (i.e., the meaning we attach to masculinity) onto the penis (a mere bodily organ), marking the erection of patriarchy.”99 To conclude, therefore, the role of circumcision together with the Priestly requirement for its cut at the age of eight days old, was vital in formally transferring the promises bestowed to Abraham (particularly his inheritance of the land of Canaan) exclusively to Isaac, and then only to Isaac’s subsequent descendants. Given the importance of this agenda, how then did the Priestly tradents impose this rite upon Israel’s otherwise intransigent males? 2.3. ġğĒ (as “Cut” or “Excision”) in Genesis 17:14 The requirement of circumcision was thus a pièce de résitance: without violence, military force, insurrection or revolution, the Priestly authorities eliminated the descendants of Lot, Ishmael, Zimran, Jokshan, an unbetrothed woman in Exod 22:15–16 and Deut 22:28–29 (where the appropriate payment of a bride-price to the girl’s father is recommended) and Deut 21:10–14 (which regulates the rape and acquisition of foreign women in war). 98. A. Ruwe, “Beschneidung als interkultureller Brauch und Friedenszeichen Israels: Religions-geschlichtliche Überlegungen zu Genesis 17, Genesis 34, Exodus 4 und Josua 5,” TZ 64 (2008): 309–42. Jakob Wöhrle, “The Integrative Function of the Law of Circumcision,” in The Foreigner and the Law: Perspectives from the Hebrew Bible and the Ancient Near East (ed. R. Achenbach et al.; Beihefte zur Zeitschrift für Altorientalische und Biblische Rechtsgeschichte 16; Wiesbaden: Harrassowitz, 2011), 71–88 (84), has rightly observed, that both circumcision (Gen 17:9–14) and the Passover requirements (Exod 12:43–49) “cannot be understood in the sense of proselytism.” 99. Harry Brod, “Circumcisional Circumstances: Circumspecting the Male Jewish Body,” in Jewish Choices, Jewish Voices. Vol. 1, Body (ed. E. N. Dorff and L. E. Newman; Philadelphia: JPS, 2008), 52–58 (55). 1

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Midian, Ishbak and Shuah as potential heirs to the covenanted blessings of land and succession promised to Abraham. The patriarch’s divinely chosen successors are identi¿ed exclusively as descendants of Isaac and subsequently then only Jacob. Their subsequent heritage, lineage and nationality is to be indicated only by the sign of circumcision cut at the tender age of eight days old in the foreskin of their new-born boys. Yet how did the Priestly redactors guarantee the continued transmission of this rite among Abraham’s ever-fractious male heirs? The answer to this question lies in the representation of ġğĒ, where the expression ġĐğĈ ġğĒ, “to cut a covenant,”100 is witnessed, and “the contractual cutting up of animals is now followed by a cutting of human Àesh.”101 The biblical verb ġğĒ and its Assyrian cognate, karâtu, meaning “to cut off,” or “separate,” but also “to slice,” “to cut off,”102 or to “fracture,” are virtually interchangeable.103 Genesis 17:13b–14 reads: Thus my covenant shall be [marked] in your Àesh as an everlasting pact. And if any man fails to circumcise the Àesh of his foreskin,104 that person shall be cut off from his kin105 he has broken My covenant.

ĐġĐğĈ ċġĐċČ ĔĒĐğĠĈĈ ĔēČę ġĐğĈē ğĒč ēğęČ Čġēğę ğĠĈʚġć ēČĕĐʚćē ğĠć ċĐĕęĕ ćČċċ Ġěėċ ċġğĒėČ ğěċ ĐġĐğĈʚġć

100. BDB, 503–4, G. F. Hasel, “ġğĒ kƗrat,” TDOT 7:339–52 (especially 340–42), CDA, 149; CAD, K, 215 and ALCBH, 174. 101. Alter, The Five Books of Moses, 82. 102. For example: “DN…zibbassa ik-rit” where “BƝl cut off her (Tiamet’s) tail” (CAD, K, 215). Similarly Lev 22:24 states “you shall not offer anything to the Lord with [its testes] bruised, or crushed, or torn, ġČğĒČ or cut.” The use of ġğĒ to denote human decapitation is attested in 1 Sam 17:51 (with regard to Goliath: ċĈʚġğĒĐČ ČĠćğʚġć, “and he cut off his head”). See also 1 Sam 5:4 (“the head and the hands of Dagon were cut off”); 31:9; 2 Sam 20:22. 103. The verb ġğĒ occurs also in the niphal (passive and occasionally reÀexive form), as in Lev 7:20; 9:14; 17:4; 18:29; 20:6; 22:3; Josh 3:16. Exod 12:19 reads: “No leaven shall be found in your houses for seven days. For whoever eats leavened, that person shall be cut off from the community of Israel.” 104. I am grateful here also to Estie Eshel for pointing out the reception of this tradition in J. C. Green¿eld, M. E. Stone and E. Eshel, eds., The Aramaic Levi Document: Edition, Translation, Commentary (Studia in Veteris Testamenti Pseudepigrapha 1; Leiden: Brill, 2004), 113, where the more common biblical term ğĠĈ Čġēğę (“the Àesh of his foreskin,” as in Gen 17:14 and in the Targums, where Neo¿ti and Pseudo-Jonathon provide ĖČċġēğęĊ ćğĠĐĈ ġĐ ğčėČ) is reversed in the Aramaic Levi Document as follows, ĖġćČĒ ĖČĐĕġċČ ĖČĒğĠĈ ġēğę Čğčė. This is in keeping with the construct form witnessed in Ezek 44:9. 105. The NRSV provides “that person shall be cut off from his people.” 1

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Yet what did this “cut” signify in biblical thought? Tikva FrymerKensky explains that “the most serious divine sanction is karet, extirpation of lineage, reserved for direct offenses against God, such as apostasy, necromancy and incest.”106 Donald Wold adds that “nothing has been found in the biblical cases to suggest that kareth was perceived as anything but a divine curse of extinction visited upon the sinner and his seed,”107 where the Israelite who fails to circumcise either himself or his son is not simply “cut-off from his kin,” but also from possession of their ancestral home, land and community. Not least of all was the threat of mortal death,108 as promised to Eli in 1 Sam 2:32–33: You will gaze grudgingly at all the bounty that will be bestowed on Israel, but there shall never be an elder in your house. I shall not cut off all your offspring from my altar; (but) to make your eyes pine and your spirits languish, all the increase in your house shall die as (ordinary) men.109

Accordingly, the requirement of circumcision was enforced with the threat of ġğĒ, where the salient message remained: inscribe this sign indelibly on your newborn son: cut him in, or be cut out. 2.4. A Substitution Rite for Child Sacri¿ce? While it is clear that memories of child sacri¿ce have been preserved by the biblical scribes,110 it has also been suggested that circumcision was 106. T. Frymer-Kensky, “Israel,” in Westbrook, ed., A History of Ancient Near Eastern Law, 1:975–1046 (1028). “To dispel the notion that circumcision is optional, or something to be done only when convenient, Abraham is further instructed that failure to be circumcised is a violation of sacral law,” Victor Hamilton, The Book of Genesis: Chapters 1–17 (The New International Commentary on the Old Testament; Grand Rapids: Eerdmans, 1990), 473. 107. D. J. Wold, “The ‘Kareth’ Penalty in P: Rationale and Cases,” in Society of Biblical Literature Seminar Papers, vol. 1 (ed. P. J. Achtemeier; Missoula: Scholars Press, 1979), 1–45 (24). Wold (23–24) itemizes the ¿ve main causes of ġğĒ as follows: (A) Violations Against Sacred Time; (B) Violations Against Sacred Substance; (C) Failure to Perform Puri¿cation Rituals; (D) Illicit Worship; and (E) Illicit Sexual Relations. 108. In m. Sanh. 9:6 and Ker. 1:2 ġğĒ is the penalty that is described as ĐĊĐĈ ċġĐĕ ĔĐĕĠ, (literally) “death at the hands of heaven.” 109. ĔĐĠėć ČġČĕĐ đġĐĈ ġĐĈğĕʚēĒČ can also be rendered as: “all the increase in your house shall die while still in their prime”; so B. Levine, Leviticus ćğĞĐČ Vayikra: The Traditional Hebrew Text with the New JPS Translation and Commentary (Philadelphia: Jewish Publication Society, 1989), 241. 1

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instituted as a substitution rite for ¿rst-born child sacri¿ce.111 Thus Leonard Glick tentatively observes that the Àesh of the phallus represented the offering of foreskins as “a gift to whatever deity reigned in his time and place—perhaps to protect the child from evil spirits or to redeem the ¿rst-born son from actual sacri¿ce.”112 More substantially, Jon D. Levenson examines “evidence of the tenacity of the idea that the ¿rst-born son belonged to God and must be redeemed if he is to live.”113 The incidence of child sacri¿ce, so forcefully condemned in the prophetic corpus,114 escapes Priestly censure where only Molech worship is prohibited.115 Levenson observes that the near-sacri¿ce of Isaac “ought 110. In the reign of Ahab (Israel) and Asa (Judah) 1 Kgs 16:34 states: “During his reign Hiel the Bethelite forti¿ed Jericho. He laid its foundations at the cost of Abiram, his ¿rst-born and set its gates in place at the cost of Segub his youngest, in accordance with the words that the Lord had spoken through Joshua, son of Nun.” 2 Kgs 16:3 informs us that King Ahaz of Judah burnt his own son in ¿re; 2 Kgs 21:6 and 23:10 describes the account of (and objections to) Manasseh’s sacri¿ces. See also Josh 6:26. 111. As F. Stavrakopoulou, King Manasseh and Child Sacri¿ce: Biblical Distortions of Historical Realities (BZAW 338; Berlin: de Gruyter, 2004), 196–98 and Wyatt, “Circumcision and Circumstance,” 426. 112. L. B. Glick, “The Life of Flesh is in the Blood,” in Denniston et al., eds., Bodily Integrity, 17–36 (21–22). 113. J. D. Levenson, The Death and Resurrection of the Beloved Son: The Transformation of Child Sacri¿ce in Judaism and Christianity (New Haven: Yale University Press, 1993), 47. This was as Exod 22:28–29 indicates: “You shall not put off skimming of the ¿rst yield of your vats; you shall give Me the ¿rst-born among your sons.” Similarly Exod 34:19–20: “Every ¿rst issue of the womb is Mine, from all your livestock that drop a male as ¿rstling, whether cattle or sheep. But the ¿rstling of an ass, you shall redeem with a sheep; if you do not redeem it, you must break its neck. And you must redeem every ¿rst-born among your sons.” See further W. H. C. Propp, Exodus 1–18: A New Translation with Introduction and Commentary (AB 2; New York: Doubleday, 1988), 454–56 (“Sanctify to Me Every Firstborn”). 114. E.g. Jer 19:5–6: “They have built shrines to Baal, to put their children to the ¿re as burnt offerings to Baal—which I never commanded, never decreed and which never came to my mind. Assuredly, a time is coming—declares the Lord—when this place shall no longer be called Tophet or Valley of Ben-Hinnom, but Valley of Slaughter.” See also Deut 12:31; Jer 7:31; 19:4–5; 32:35; Ezek 16:21; 20:25–26; 23:37–39; Isa 30:33; 57:5; Amos 5:22; Mic 6:6–7. 115. Attested in Lev 18:21; 20:2–3, although suggested also in Ezek 20:25–26 and 31. The comparative literary and epigraphic evidence for Molech worship from Ebla, Mari, Ugarit, Phoenicia and in Punic sources is presented by George C. Heider, The Cult of Molek: A Reassessment (JSOTSup 43; Shef¿eld: JSOT, 1985), 1

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to be a real challenge. For here it is not the wayward people but the faithful god who demands the immolation of the favored son, and not as a punishment in the manner of the hardening of Pharaoh’s heart, either, but as a test of true devotion.”116 This raises the unavoidable question: “Were the practice of child sacri¿ce always so alien to YHWH, so ‘worthy of severest condemnation’, would there have survived a text in which it is this act and no other that constitutes YHWH’s greatest test of his servant Abraham?”117 Levenson identi¿es four potential substitutions that could replace the requirement of the ¿rst-born child: namely, the paschal lamb, Levitical service, monetary ransom and the institution of the Nazir.118 This requirement of the paschal lamb, in particular, recalls the “ram caught in the thicket, by its horns,”119 an image also evoked in the ¿gurine of a goat,120 excavated in a family tomb at Ur, from the early III Dynasty, ca. 2,600 BCE,121 ¿rst excavated by Leonard Woolley. While the connection between the near-sacri¿ce of Isaac and this ¿gurine remains speculative, it is the symbolism of the paschal lamb itself which is of particular interest.

93–194. John Day contends also that this was probably the name of a sacri¿ce, rather than a separate cult deity, but admits: “the allusion to the rulers of Jerusalem making a covenant with Death and Sheol in order to avert the Assyrian threat (Isa 28:15) makes sense as an allusion to the Molech cult” (Molech: A God of Human Sacri¿ce in the Old Testament [Cambridge: Cambridge University Press, 1989], 84– 85). See also Stavrakopoulou, “Šadday as a God of Child Sacri¿ce,” in King Manasseh, 272–82. 116. Levenson, The Death and Resurrection, 12 (original italics). Levenson goes on to state: “No interpretation of the aqedah can be adequate if it fails to reckon with the point made explicit here: Abraham will have his multitudes of descendants only because he was willing to sacri¿ce the son who is destined to beget them. Any construal of the text that minimizes that willingness misses the point” (13). 117. Ibid., 12. 118. Ibid., 43–48. 119. From Gen 22:13: “When Abraham looked up, his eye fell upon a ram, caught in the thicket by its horns. So Abraham went and took the ram and offered it up as a burnt offering in place of his son.” 120. The ¿gurine was one of a pair: item ME 122200, in Room 56 of the Mesopotamian Galleries at the British Museum. 121. The question of whether this was found in a royal tomb, or simply in one belonging to either a priestly or wealthy aristocratic family is debated. 1

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Figure 3. Figurine of a Ram from the Ur III Tomb. Courtesy of the Trustees of the British Museum.

This ĎĘě ĖĈğĞ (pascal lamb) represented what Leonie Archer describes as the “¿rst redemption of the embryonic nation,”122 which appeared after God announced “just one more plague” (Exod 11:1): the death of the ¿rst-born “from the ¿rst-born of Pharaoh who sits on his throne to the ¿rst-born of the slave-girl who is behind the millstones and all ¿rst-born of the cattle” (Exod 11:5). Here the substitution of the paschal lamb for the ¿rst-born son is striking: “For when the Lord goes through to smite the Egyptians, He will see the blood on the lintel and the two door-posts, and the Lord will pass over the door and not let the Destroyer enter and smite your home” (Exod 12:23). The retributive tone of this action is inescapable, as Jon Levenson observes:

122. L. Archer, “In Thy Blood Live: Gender and Ritual in Judeo-Christian Tradition,” in Through the Devil’s Gateway (ed. A. Joseph; London: SPCK & Channel 4, 1990), 22–49 (22). 1

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The Body as Property And yet the very story of that great act of deliverance, the story of the Passover, pays oblique homage to the dark side of the Deity. More than that: it speci¿es a practice that is to ensure that it is the delivering, rather that the destroying aspect of God that triumphs. In the P theology, Passover is not only the story of YHWH’s victory over Pharaoh. It is also the story of YHWH’s victory over himself and it stands as a continual reminder of just how narrow that victory was: but for the blood of the lamb, the Israelites would have suffered the same catastrophe as the Egyptians.123

The totemic use of ¿gurines, such as those excavated at Ur, informs the background also of an exorcistic ritual involving the slaughter and burial of a virgin kid in the Neo-Assyrian Period,124 sacri¿ced as “a substitute to the god Ereškigal” (pu-u-hi LÚ a-na ࢤEreš-ki-gal),125 to ensure the recovery of Šamaš-Šuma-ukƯn from fever. Roland de Vaux explained the underlying logic of such rituals, where “sickness was held to result from the vengeance of gods or the wickedness of demons. To divert these, an animal was taken and treated as a pu¨u or vicar or dinânu,”126 as in the Utukki limnûti ritual, where the following formula accompanies the sacri¿cial killing: A lamb is a substitute for a man he has given the lamb for his life he has given head of lamb for head of man he has given neck of lamb for neck of man he has given breast of lamb for breast of man.127

Such rites are informed further by inscriptional evidence from Eastern Mediterranean sources, where an inscribed Phoenician sherd from Idalion (Nicosia, Cyprus) dated to the time of its destruction by Ptolemaic forces in 312 BCE,128 together with Neo-punic ex-voto parallels 123. Levenson, The Death and Resurrection, 46. 124. See S. Parpola, Letters from Assyrian Scholars to the Kings Esarhaddon and Asurbanipal. Part I and Part II, Commentary and Appendices (Kevelaer: Butzon & Bercker, 1970–83), Part II, 127 n. 14. 125. Ibid., LAS Document 140, Part I, 110–11. 126. R. de Vaux, “Human Sacri¿ces in Israel,” in Studies in Old Testament Sacri¿ce (Cardiff: University of Wales Press, 1964), 56. Alberto Green provides a comprehensive account of “The Use of Pu¨u in Texts,” in A. R. W. Green, The Role of Human Sacri¿ce in the Ancient Near East (ASOR Dissertation Series 1; Missoula: Scholars Press, 1975), 88–90. 127. De Vaux “Human Sacri¿ces,” 56. 128. F. M. Cross, “A Phoenician Inscription from Idalion: Some Old and New Texts Relating to Child Sacri¿ce,” in Scripture and Other Artifacts: Essays on the Bible and Archaeology in Honor of Phillip J. King (ed. M. D. Coogan, J. C. Exum and L. E. Stager; Louisville: Westminster John Knox, 1994), 93–107 (93), which is reconstructed as: “ [ ]l son of Rapa[‘ ] [ho]locaust of a scion Year 50.” 1

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from Altiburus (Algeria),129 Constantine (El Hofra),130 and Malta,131 indicate that “urn inscriptions with the formula !lt Ñm­, ‘holocaust of a scion,’ record a sacri¿cial burning of the child of the offerer, with the term Ñm­ used to stress the blood relationship of the victim to the offerer.”132 Additionally, from Carthage,133 both child sacri¿ce and accompanying burials of cremated lambs are evidenced,134 where Lawrence Stager and Samuel Wolff argue that “the burnt animals were intended as substitutes for the children.”135 Both scholars reject the suggestion that the animal remains were indicative of a pet cemetery, given that the charred remains of children (usually a new-born and another aged two to four years of age) were placed in the same urn, and do not appear to have died a natural death. Not least importantly is the Stelae of Ngaous (Algeria, ca. 200 CE), which preserves the Latin vow of Felix and Diodora, who pledge a lamb as a substitute “breath for 129. Where š h !l k! !lt w m[n]­t bmqdš is translated by Cross, “A Phoenician Inscription,” 97, as: “who sacri¿ced here holocausts or meal offerings in the sanctuary.” 130. The ¿rst two lines of the ¿rst stele states: “To payyo (the Living [God]), lord of grace, Ba!l pamon, awesome lord: Bissirba!l [has dedicated] a daughter without blemish, being a goodly scion, his own Àesh (and blood)” (ibid., 99). The second stele is translated: “Taško has ful¿lled [his vow], with a whole heart, in giving to Hayyo Ba!l—together with a stele of the shades [lit. “sons of God”] Bod!aštart, an infant, precious offspring, a gift to him consisting of a scion of his own Àesh [and blood]” (ibid., 101). 131. These read: “Stele of a mulk-sacri¿ce consisting of an infant which Na­um erected for Ba!l pamǀn” and “Stele of a mulk-sacri¿ce of a lamb which [Ari]š [ere]cted for Ba!l pamǀn” (ibid., 100). 132. Ibid., 101: “In this case the sacri¿cial term mulk in use in Phoenician and Punic and the term !lt used in the Egyptian funerary inscription in Idalion, and in the Bible are equivalents.” Frank Moore Cross explains that this is as B. Delavault and A. Lemaire have suggested in “Une stele ‘Molk’ de Palestine: Dédié à Eshmoun? RÉS 367 reconsidéré,” RB 83 (1976): 569–83. 133. Carthage was a Canaanite outpost in North Africa, founded in the eighth century BCE by Phoenician seamen. It emerged as major power in the central and western Mediterranean world in the second and third centuries but was destroyed by the Romans in 146 BCE. 134. On the basis of the density of the urns in the excavated areas at Carthage, it has been estimated that as many as 20,000 urns have been deposited there, between 400 and 200 BCE. L. E. Stager and S. R. Wolff, “Child Sacri¿ce at Carthage: Religious Rite or Population Control?,” BAR 10 (1984): 31–51 (32). See also S. Shelby Brown, Late Carthaginian Child Sacri¿ce and Sacri¿cial Monuments in Their Mediterranean Context (Shef¿eld: JSOT for the American School of Oriental Research, 1991). 135. Stager and Wolff, “Child Sacri¿ce,” 39. 1

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breath, life for life,”136 for the salvation of their daughter, Concessa, to the Roman God, Saturn. As Jon Levenson explains, “Presumably, the parents, crediting the god Saturn with her recovery, wished to present him with an equivalent of the child, who, had she died, would have become his.”137 In this light it is not unreasonable to suggest that the association between the ram that Abraham substitutes for Isaac in Gen 22:13, together with the requirement for a sacri¿cial lamb submitted in its ¿rst year by the new mother, indicates likewise that although the Israelites had practised ¿rst-born sacri¿ce, an animal was later understood to function as a substitute for the ¿rst-born in each household. This is even though neither Jephthah (Judg 11:1–40), nor Mesha of Moab, elect to offer a lamb or sheep as substitute for their sacri¿cial child, as 2 Kgs 3:26–27 indicates: “Seeing that the battle was going against him, the King of Moab led an attempt of seven hundred swordsmen, to break a way through the King of Edom: but they failed. So he took his ¿rst-born son,138 who was to succeed him as king, and offered him up on the wall as a burnt offering.” Here the clause identifying Mesha’s son as the one “who was to succeed him as king (ČĐġĎġ đēĕĐĀğĠć ğČĒĈċ) is the crux, as Jon Levenson observes: “In his case, the son was the substitute, for his death purchased life for his father – ‘breath for breath” as the Ngaous stele puts it, “life for life.” Whereas Abraham offers the ram “in place of (ta­at) his son (Gen 22:13), and Felix and Diodora sacri¿ce “a lamb as substitute” (agnum pro vicario), Mesha offers his ¿rst-born son who would rule in his stead (ta­tƗyv, 2 Kgs 3:27). In place of the father dies the son.”139 In later antiquity the value of such payments are described in the writings of the Phoenician priest, Sakkunyaton, preserved by Philo of Byblos (cited by Eusebius of Caesarea in the fourth century, in his 136. As Day, Molech: A God, 8 n. 23: “Prosperity and salvation! To the holy lord Saturn a great nocturnal sacri¿ce—breath for breath, life for life, for the salvation of Concessa—on account of a vision and a vow Felix and Diodora a sacri¿ce molchomor with willing hearts, a lamb as substitute.” 137. Levenson, The Death and Resurrection, 23. 138. Here Mesha’s ¿rst-born son is identi¿ed as ğČĒĈċ ČėĈĀġć, rather than as an “only one,” or as ĊĐĎĐ is usually translated (as in Judg 11:34, above) with reference to Isaac in Gen 22:2: “Take your son, your favored son, Isaac, whom you love” (ĞĎĝĐʚġć ġĈċćʚğĠć đĊĐĎĐʚġć đėĈʚġć ćėʚĎĞ); see also 22:12 and 16, where the NJPS translation is based on the LXX version ton huion sou ton agapƝton hon ƝgapƝsas, meaning “your beloved son, who you love.” For a discussion of the relationship between this tradition and John 3:16, see Jon Levenson, The Death and Resurrection, 30–31. 139. Ibid., 24. 1

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Praeparatio Evangelica), who explains that the ancient custom, when either a city or its rulers were in great danger, to sacri¿ce their most beloved children “as ransom to the avenging daemons,”140 as was carried out by Kronos (known also to the Phoenicians as Elus, and was posthumously dei¿ed as the star Saturn).141 Having sacri¿ced his son as a burnt offering to his father Uranus, Kronos then circumcises himself, compelling his allies to do the same.142 Levenson adds here: This variety of child sacri¿ce is to be associated with the ancient notion that in certain circumstances, the king himself must be offered: the son is here but as a substitute for the father, just as a lamb will become a substitute for the son and, in the Christian case, the confessed son of God will become a substitute for the pascal lamb (for example, 1 Cor. 5:7).143

Nor are such apotropaic mechanisms ¿xed (or static) in biblical memory, where virtually no distinction is made between the involuntary loss of a ¿rst-born child, and its voluntary offering as gift, as the events in 2 Sam 12:1–23 indicate. Here David’s efforts to have Uriah killed (in order to obtain Uriah’s wife, Bathsheba) do not go unnoticed, as Nathan prophesies: “Thus said the Lord: I will make a calamity rise against you from within your own house: I will take your wives and give them to another man before your very eyes and he shall sleep with your wives under this very sun.”144 Their further conversation explains precisely how 140. E. H. Gifford, Eusebius’ Preparation for the Gospel (Eugene: Wipf & Stock, 2002, repr. 1903), 43, 45, is translated in Levenson, The Death and Resurrection, 26, and Wyatt, “Circumcision and Circumstance,” 425. 141. Levenson, The Death and Resurrection, 27, states: “Through [his ¿rst-born son], the king supplicates the angry gods and pays a great price to ransom his people; but through him the king also ransoms himself, as he covers the child with the insignia of his own rank and person.” See also n. 4 on p. 236. 142. Wyatt, “Circumcision and Circumstance,” 426, observes: “The sacri¿ce is evidently apotropaic, and so surely is the circumcision. It is almost as though, having killed his son, Kronos then substitutes his foreskin for himself. The echoes of Hebrew sacri¿cial thought are uncanny, to say nothing of the passion narrative (see Mt. 27:27–29; Mark 15:16–20; John 19:1–3). The interesting feature of this for our present purposes is that Kronos (= Western Semitic El) performs the rite on himself (as an adult) apotropaically, and this is the symbolism of the infant rite when it redeems the child.” 143. Levenson, The Death and Resurrection, 27. See also Propp, Exodus 1–18, 459–60 (“Agnus Dei”). 144. 2 Sam 12:11. The fate of David’s ten concubines is ¿rst mentioned in 2 Sam 15:16 and later in 16:20–22, where the Nathan’s prophecy is ful¿lled as follows: “Absalom then said to Ahithophel ‘What do you advise us to do?’ And Ahithophel said to Absalom ‘Have intercourse with your father’s concubines, whom he left to 1

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the child’s (involuntary) substitution for his father’s sin was assumed: “David said to Nathan, ‘I stand guilty before the Lord!’ And Nathan replied to David ‘The Lord has remitted your sin, you shall not die. However, since you have spurned the Lord by this deed, even the child about to be born to you shall die’ ” (2 Sam 12:13–14). Here clearly “David’s confession brings about the sacri¿ce for it is only then that God displaces the punishment from the guilty David to the innocent child. According to sacri¿cial theologies, the death of the child enacts and completes David’s salvation.”145 This is also as Micah recalls: “With what shall I approach the Lord, do homage to God on high? Shall I approach him with burnt offerings? With calves a year old? Would the Lord be pleased with thousands of rams, with myriads of streams of oil? Shall I give my ¿rst-born for my transgression, the fruit of my body for my sins”? (Mic 6:7). Notably for Micah, the distinction between the loss of human life as a consequence of a punishment or as a separate gift is barely differentiated, even though examples of both phenomena are preserved in the biblical corpus.146 In terms of ritual killings, it is also apparent that it was not only the ¿rst-born who were sacri¿ced to maintain the existing cosmic order. Both in Egypt and in Nubia, this fate was reserved for convicted criminals or prisoners of war. In cases of retainer sacri¿ce the death of a king was then followed by the killing of his people, who were intended to accompany him in his after-life.147 In the aftermath of Sennacherib’s murder the ritual killing of the accomplices in this crime was equally striking,148 and it is here that his successors (notably Esarhaddon and mind the palace; and when all Israel hears that you have dared the wrath of your father, all who support you will be encouraged’. So they pitched a tent for Absalom on the roof, and Absalom lay with his father’s concubines with the full knowledge of all Israel.” 145. J. L. Berquist, “ ‘What Does the Lord Require?’: Old Testament Child Sacri¿ce and New Testament Christology,” Encounters 55 (1994): 107–28 (116). 146. As in the account of Jephthah’s daughter, where the father’s vow was intended as thanks for his success in overcoming the Ammonites in Judg 11:30–31: “And Jephthah made the following vow to the Lord: ‘If you deliver the Ammonites into my hands, then whatever comes out of the door of my house to meet me on my safe return from the Ammonites shall be the Lords and shall be offered by me as a burnt offering’.” 147. See J. Van Dijk, “Retainer Sacri¿ce in Egypt and Nubia,” in The Strange World of Human Sacri¿ce (ed. J. N. Bremmer; Leuven: Peeters, 2007), 135–55. 148. “A single reference citing the killing of prisoners as an act of sacri¿ce occurs within the context of Sennacherib’s murder. Esarhaddon states that after taking the accomplices of his father’s murder as prisoners he offered them a human 1

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Ashurbanipal) take the further precautions of enacting the Substitute King (šar pu¨u) ritual during their reigns. This rite involved a human substitute, chosen by diviners to replace the king, who was to take upon himself the evil omens otherwise destined by the gods.149 The substitute was dressed as the king, enthroned, provided with the royal insignias, including the crown, mantle, weapon and sceptre and then given a queen who would share in his fate.150 On rare occasions the victim was a person of high standing, but more often usually a simpleton or half-wit (saklu). The substitute was made to recite the omen litanies, thereby assuming them personally, and a written copy of these was then folded into the hem of his robe, before he and his queen were put to death, with the the required declaration was read out, for example: “[Damqi], the son of the prelate of Akka[d], who had ruled Assyira, Babylon(ia) [and] all the countries, [di]ed with his queen on the night o[f the xth day as] a substitute for the King, my Lord, [and for the sake of the li]fe of Šamaš-Šuma-uki[n]. He went to his fate for their redemption.”151 The ceremony ended after the funeral with the formal assurance that that evil had been averted. Simo Parpola adds: This rite forms the subject of one of the most familiar tales in the Arabian Nights, and from incidental and garbled statements made by ancient historiographers,152 it has long been known (or suspected) that the ritual was from time to time practiced in the ancient oriental courts. The history of these more or less anecdotal reminiscences was put beyond all doubt by the discovery of the Nineveh letter archives, which contain numerous references to a substitute king (šar pu¨u) ruling in the king’s place, and sacri¿ce at the same place (before the altar) where his father was struck down. It must be acknowledged that this is the only text which states that such prisoners are slaughtered as expiation of sin against the national god,” Green, The Role of Human Sacri¿ce, 87. 149. “The Mesopotamians believed that the gods expressed themselves and their will in many ways, and were constantly on the watch for astronomical signs and other portents. Whenever an eclipse occurred which, according to the omen texts, should have resulted in the king’s death, a substitute was temporarily placed on the throne to die in the place of the real monarch, who was thus saved,” ibid., 89. 150. Bottéro, Mesopotamia, Writing, Reasoning, 142, explains that the ritual was not intended to fool the gods, but simply to give them an acceptable victim on whom they could carry out their intentions. A similar point is made by Bahrani, Rituals of War, 199: “This conception of the king’s possible demise, as predicted in the omens, recalls the logic of the sacri¿ce of scapegoats as described in anthropological theories of sacri¿ce. In this logic, guilt is projected onto and localized in the scapegoat, whose sacri¿ce then allows the reestablishment of the social order.” 151. Parpola, Letters from Assyrian Scholars, Part II, 352. 152. Plutarch (Lives, Alexander 73–74) and Herodotus (Hist. 7.15 and 17). 1

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The Body as Property above all, by the publication in 1957 and 1967 of two sets of ritual texts (Akkadian and Hittite) showing that the rite was known and practiced all over the ancient Near East, not just Sargonid Assyria.153

This Substitute King (šar pu¨u) ritual therefore provides a substantiated historical context in which human sacri¿ce was intended to appease or ful¿l the will of the gods, and could suggest a practical Sitz im Leben in which circumcision may have been conceived as a potential substitution rite for child sacri¿ce, in the pre-history of biblical memory. In relation to the Priestly concern for ritual purity and the avoidance of pollution, Leonie Archer observes that “it is generally recognised that rituals tend to increase, intensify and shift in focus at times of social crisis.”154 This is a reality that would also reÀect the importance of the apotropaic role of circumcision in exilic or post-exilic tradition. This stated, the idea that the gift of a child could effectively remit individual sin is evident also in earlier (non-Priestly) tradition, as in the J/E “bridegroom of blood” pericope, in Exod 4:24–26. According to Rashbam,155 the apotropaic role of this rite ensured that the circumcised foreskin of Zipporah’s unnamed son secured Moses from the throes of death, for his (unstated) failure to circumcise his own son:156 At a night encampment on the way, the Lord157 encountered him and sought to kill him.158 So Zipporah took a Àint and cut off her son’s foreskin

ĖČēĕĈ đğĊĈ ĐĎĐČ ċČċĐ ČċĠĉěĐČ ČġĐĕċ ĠĞĈĐČ ğĝ ċğČěĝ ĎĞġČ ċėĈ ġēğęʚġć ġğĒġČ

153. Parpola, “Excursus: The Substitute King Ritual,” in Letters from Assyrian Scholars, Part II, xxii–xxxii. 154. Archer, “In Thy Blood Live,” 37. 155. Rabbi Samuel ben Meir (1180–1274) of Ramerupt, Northern France. 156. Where Exod. Rab. 5:8 identi¿es this son as Eliezer. 157. Direct divine intervention is relatively rare in biblical narratives, as in 2 Sam 24:15–16: “The Lord sent a pestilence upon Israel from morning until the set time and 70,000 of the people died…but when the angel extended his hand against Jerusalem to destroy it, the Lord renounced further punishment and said to the angel who was destroying the people, ‘Enough! Stay your hand’.” Further examples of the personi¿cation of the destroyer are found in Gen 20:6; Job 1:12; 2:1–6. 158. Where it is by no means clear exactly who “the Lord sought to kill.” Rashbam explains Exod 4:26b from Tzipporah’s perspective as follows: “Since my husband [incurred death] on account of his delaying circumcision, therefore this circumcision has saved him now” (ĎēĐĕċ ĐĒ ċġĐĕ ĐēęĈ ĈĐĐĎġė ċēĐĕċ ĈČĒĐę ēę ċġę ČġēĐĝċ). Although Rashbam’s opinion follows the Talmud, y. Ned. 3:14, it is by no means unanimous. Among others, the Torah Temimah (Rabbi Barukh haLevi Epstein of Novarodok, Lithuania, 1860–1941) argues that it was the life of the circumcised child who was saved. 1

2. The Priestly Requirement of Circumcision and touched his legs159 with it,160 saying, “You are truly a bridegroom of blood to me!”161 And when he let him alone, she added, “A bridegroom of blood, because of the circumcision.”162

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ğĕćġČ ČĐēĉğē ęĉġČ Đē ċġć ĔĐĕĊʚĖġĎ ĐĒ ċğĕć čć Čėĕĕ ĚğĐČ ġēČĕē ĔĐĕĊ ĖġĎ

This intriguing “nugget in which we ¿nd embedded fragments of the complex history of circumcision,”163 identi¿es the destroyer who will smite Moses (or his uncircumcised son) as none other than God himself.164 If one was to accept the interpretation of Rashbam, the ¿nal clause, “A bridegroom of blood, because of the circumcision,” indicates that the wrath of God was averted by Zipporah’s act of cutting her son’s foreskin, and it was only her alacrity that preserved the otherwise endangered life of her husband. In the event that the “bridegroom of blood” was her newly circumcised son rather than Moses, this would support the view that circumcision originated as a substitution rite for 159. The leg, or ēĉğ is often used as a euphemism for the male genitals (Gen 31:42 and 53), so that also “touching someone’s thigh (i.e. sexual organs) while taking an oath was believed to invoke the family to stand by and make sure that the oath-taker lives up to his promise,” M. Malul, “Touching The Sexual Organs as an Oath Ceremony in an Akkadian Letter,” VT 37 (1987): 491–92 (491). For a comprehensive discussion of this symbolism in biblical literature, see A. Viberg in Symbols of Law: A Contextual Analysis of Legal Symbolic Acts in the Old Testament (Coniectanea Biblica 3; Stockholm: Almqvist & Wiksell, 1992), 45–51. 160. It is also not evident whose legs Zipporah touched with her son’s foreskin. Rashbam explains that she touched Moses’ legs, in order to appease the avenging angel. This is an interpretative option that avoids the doctrinally problematic possibility that Zipporah touched the Lord’s legs. 161. Rashbam thus concludes that this “bride-groom” must refer to Zipporah’s husband (i.e. Moses). 162. The apotropaic function of this blood is most explicit in the ancient Armenian and the Ethiopic versions, which are speci¿cally based on the Septuagint, where Geza Vermes explains “the Ethiopic version is ‘May the blood of the circumcision of my son be in his place’,” Geza Vermes, “Circumcision and Exodus iv 24–26: Prelude to the Theology of Baptism,” in Scripture and Tradition in Judaism (2d ed.; Leiden: Brill, 1973), 178–92 (180). 163. W. C. Propp, “That Bloody Bridegroom (Exodus IV 24–6),” VT 43 (1993): 494–518 (514–15). 164. See further H. Kosmala, “The ‘Bloody Husband’,” VT 12 (1962): 14–28; J. Morgenstern, “The ‘Bloody Husband’(?) Exodus 4:24–26 Once Again,” HUCA 34 (1963): 35–70; R. Shankman, “The Cut That Unites: Word as Covenant in Exodus 4:24–26,” Cross Currents 41 (1991): 168–78; S. Kunin, “The Bridegroom of Blood: A Structural Analysis,” JSOT 70 (1996): 3–16; Cohen, Why Aren’t Jewish Women Circumcised?, 13–18, and C. B. Hays, “ ‘Lest Ye Perish in the Way’: Ritual and Kinship in Exodus 4:24–26,” Hebrew Studies 48 (2007): 39–54. 1

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child sacri¿ce. More importantly, the pericope clari¿es the signi¿cance of the apotropaic role of circumcision in subsequent rabbinic tradition, where “deliverance from destruction for the beloved of our Àesh” is still recalled in the liturgical blessings that follow this surgery. This commences with the conventional formula, “Blessed are You, Lord our God, King of the Universe,” and continues: who made the beloved one,165 holy from the womb, marked the decree [of circumcision] in his Àesh and gave [his descendants] the seal and sign of the holy covenant As reward for this, may the living God, our portion, our Rock, order deliverance from destruction, [for the beloved of our Àesh] for the sake of His covenant that he has set [in our Àesh]166 Blessed are You, Lord, who establishes the covenant.167

ĖďĈĕ ĊĐĊĐ ĠĊĞ ğĠć ĔĠ ČğĠĈ ĞČĎ ČĐćĝćĝČ ĠĊĞ ġĐğĈ ġČćĈ ĔġĎ ĐĎ ēć ġćč ğĒĠċ ĖĒ ēę ČėğČĝ ČėĞēĎ ġĎĠĕ ČėğćĊ ēĐĝċē ċČĝ ČġĐğĈ Ėęĕē ĔĠ ğĠć ċČċĐ ċġć đČğĈ ġĐğĈċ ġğČĒ

Here the power of circumcision to secure “deliverance from destruction,” is highly suggestive in light of 2 Sam 12:1–23 and Mic 6:7, which indicate that the gift of any child, but particularly a ¿rst-born male,168 would remit sin. In addition, the “bridegroom of blood” pericope (Exod 4:24–26) provides a striking example of how Moses’ omission (in failing to circumcise his son) would have con¿rmed the Priestly consequences: “that person shall be cut off from his kin,”169 where only Zipporah’s swift 165. According to Rashi, this “beloved one” indicated Isaac, unlike his successors, the Tosa¿sts, who maintained that this denoted Abraham. See further D. Flusser and S. Safrai, “Who Sancti¿ed His Beloved from the Womb” (Hebrew), in Studies in Bible and the Ancient Near East: Presented to Samuel E. Loewenstamm On His Seventieth Birthday (ed. Y. Avishur and J. Blau; Jerusalem: Rubinstein, 1978), 329–36. 166. ĔĠ ğĠć literally means “which is there.” 167. From “Service at a Circumcision,” in J. Sacks, The Authorized Daily Prayer Book, 802–3. The blessing of this text is based on the Talmudic precursor in b. Shab. 137b, with corresponding versions in y. Ber. 9:3 and t. Ber. 7:13. The English text placed in square brackets since it was not present in the Rabbinic Hebrew. 168. As Leonie Archer (“In Thy Blood Live,” 24) observes: “Within the sacri¿cial procedure, the prescription was always to select male victims for the more important occasions,” as the requirement of the ČėĈĐğĞĐ ĔĐĕġ ğĒč (“offering a male without blemish”) in Lev 1:3, 10; 4:33, etc. speci¿es. 169. As speci¿ed in Gen 17:14, where the Priestly consequence would be ful¿lled either the by death of Moses (i.e. the parent who failed to circumcise his son) or by the death of his child. 1

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action of cutting her son’s foreskin held back the destroyer’s wrath. Here the rite of circumcision functioned as a substitution for human destruction, in a singularly prominent case where the Israelite leader was about to be destroyed by the deity for his own sin. In the event that one prefers the interpretation that the Lord sought to kill Moses’ uncircumcised son, this would exemplify the use of transgenerational divine punishments within the Pentateuch, as provided by the statement in Exod 20:5: “I the Lord your God am an impassioned God, visiting the guilt of the parents the sins upon their children.”170 This idea that circumcision originated as a substitution rite for child sacri¿ce is also consistent with the midrashic tradition in ċĈğ ćğĞĐČ (Leviticus Rabbah), where the biblical “ordinances” relating the Israelite males (including the requirement of circumcision) are equated with the rite of animal sacri¿ce: Rabbi Isaac said: “Man and beast You deliver, O, Lord” [Ps 36:7] The ordinance relating to man and the ordinance relating to beasts are on a par. The ordinance relating to man: “On the eighth day the Àesh of his foreskin shall be circumcised” [Lev 12:3]. The ordinance relating to beasts “and from the eighth day on, it shall be acceptable as an offering to ¿re by the Lord” [Lev 22:27]. (Lev. Rab. 27:1)171

This association also recalls Rashi’s interpretation of Lev 26:42, which clari¿es the integral relationship between the near-sacri¿ce of Isaac (in Gen 22:2) and divine ful¿lment of the patriarchal covenant and promise of land, as follows: Then will I remember my covenant with Jacob [I will remember]172 also my covenant with Isaac also my covenant with Abraham and I will remember the land.

ĈĞęĐ ĐġĐğĈĀġć ĐġğĒčČ ĞĎĝĐ ĐġĐğĈĀġć ĚćČ ğĒčć ĔċğĈć ĐġĐğĈĀġć ĚćČ ğĒčć ĜğćċČ

170. See B. M. Levinson, “The Reworking of the Principle of Transgenerational Punishment: Four Case Studies,” in Legal Revision and Religious Renewal in Ancient Israel (Cambridge: Cambridge University Press, 2008), 57–94. 171. Translation by Levenson, The Death and Resurrection, 51. 172. Although the JPS includes “I will remember” in its translation of Lev 26:42b, the verb ğĒč, “remember,” is not present in the Hebrew. Its insertion into the English has been made on the basis of the appearance of ğĒčć, “I will remember,” in 26:42c, where it is stipulated in relation to the covenant with Abraham. The following is therefore more accurate: “And I will remember my covenant with Jacob and also my covenant with Isaac and also my covenant with Abraham I will remember, and the land I will remember,” as translated (and punctuated) in Alter, The Five Books of Moses, 666. 1

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From a grammatical perspective Rashi asks the following: “So why is no [verb] mentioned for the remembering of Isaac?”173 His reply takes an unexpected midrashic leap, as he explains, “This is because the ashes of Isaac are visible before me, [as if] piled up and lying on the altar,”174 meaning that that although Abraham offered a ram in place of his son, the fact that he was willing to take his child’s life presumes that the boy’s body was considered as burnt as if his actual sacri¿ce had taken place. For Rashi, Isaac constitutes the perfect “unblemished male,”175 who submitted willingly to his father in Gen 22:4–10 and, as such, requires no memorial—his burnt remains being ever-present before God. The covenant initially cut with Abraham in Gen 15:7–21, and then sealed in the Àesh of his foreskin, is now fully realized in his most priceless asset: the ashes of his only son Isaac, visible upon the heavenly throne, in precisely the same way that the sacri¿cial offering was made in the presence of a king, to ratify his treaty. The success of the Priestly rhetoric, particularly in the use of ġğĒ (as “cut” or excision”) in Gen 17:14, is a testament to the power of the written (or spoken) word, which has had more inÀuence on the children of Israel than any brute, physical force could have imposed and where the timing of this skin-deep cut (at the age of eight days old, rather than at thirteen) would qualify entry into their ethnic group in perpetuity. This analysis indicates, ¿rst, that circumcision may have been instituted in a ritual context as a substitution rite for ¿rst-born sacri¿ce in the pre-history of biblical memory, although it is not possible to determine the historical background of this tradition, but secondly, that its deployment in biblical tradition was to address the intractable question of who exactly was an Israelite. Or as the Priestly writer(s) preferred: who was a legitimate bene¿ciary of the covenanted blessings and promises to Abraham? 2.5. The Development of Circumcision as a Divine Seal Although circumcision may have functioned as a substitution rite for child sacri¿ce in the pre-history of biblical tradition, it is also evident, as Leonie Archer has argued, that “in the exile it was decreed that circumcision was to be THE of¿cial rite of initiation into Judaism, and all that

173. ĞĎĝĐĈ ċğĐĒč ċğĕćė ćē ċĕēČ. 174. ĎĈčĕċ ēę ĎėČĕČ ğČĈĝ Đėěē ċćğė ĞĎĝĐ ēĠ Čğěć ćēć. 175. Recalled initially in Lev 1:3, which speci¿es “offering a male without blemish,” as also in 1:10; 4:33, etc. 1

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that now meant.”176 Yet in the framework of the patriarchal narratives, the command to Abraham to circumcise all the males in his household did not function as “tribal mark or ethnic habit,”177 since both Ishmael and Esau also imposed circumcision upon their sons, as did Israel’s immediate neighbours in Egypt, Edom, Ammon, Moab, Canaan and the Hurrian and Hittite Kingdoms (albeit with variations in the physical extent of the cut and in its timing), as Marvin Fox explains: It is not an identity sign that designated belonging to the covenanted people, for ¿rst of all, no one would see it. (There is no point referring the custom to a time when people went naked, for that custom was certainly not relevant for P and even in the earliest times Israelites did not go naked). Anyway it would not be of much use in distinguishing the Israelites from their neighbours, because many of them were also circumcised.178 And Ishmael, who as P takes pains to emphasize is not part of the covenant, is also circumcised. For practical purposes circumcision could at most distinguish the Israelites from the Philistines, who are not an issue for P.179

Priestly legislation prescribing circumcision upon a new-born, eight-dayold son did, nonetheless, provide a distinct, physical mark that was not necessarily shared by non-Israelite boys during their formative, early youth.180 This would engender a greater sense of kinship, not exclusively with members of their own tribe, but with all males descending from Isaac and Jacob, forging an indelible physical expression of a national Israelite group. The Priestly “identity card or passport”181 was intended to extend the ethnic af¿nities of each Israelite male beyond the horizons of his father’s immediate family and to establish a shared patrilineage 176. Archer, “In Thy Blood Live,” 33. 177. Cohen, Why Aren’t Jewish Women Circumcised?, 15. 178. As Jeremiah (9:24–25) indicates: “Lo, the days are coming—declares the Lord—when I will take note of everyone circumcised in the foreskin: of Egypt, Judah, Edom, the Ammonites, Moab and all the desert dwellers who have the hair of their temples clipped. For all these nations are uncircumcised, but all the house of Israel are uncircumcised of heart.” See also Herodotus, Hist. 2.104; Josephus, Ag. Ap. 1.164–70; 2.141–42. 179. M. V. Fox, “The Sign of the Covenant: Circumcision in the Light of the Priestly ôt Etiologies,” RB 81 (1974): 567–96 (595). See also W. H. C. Propp, “Circumcision: The Private Sign of the Covenant,” BRev 20, no. 4 (2006): 22–29 (23), and Jacobs, “Expendable Signs,” 571–74. 180. Therefore “the rite becomes more humane because it avoids the physical and psychological effects attendant upon circumcision at a more mature age” (Sarna, ġĐĠćğĈ Genesis, 125 n. 12). 181. Aldeeb Abu-Sahlieh, Male and Female Circumcision, 25. 1

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with all of Jacob’s sons and grandsons, that ¿rmly excluded the descendants of Ishmael and also Keturah’s sons.182 By adulthood, this mark would already have served its purpose: to generate ties of patrilineal kinship and ethnic consciousness upon the young male. Since the Aaronide and Levitical distinctions were crucial to the establishment of Priestly authority, this legislation would physically designate those subject to their authority: all Israelite males “cut” at the age of eight days old into partnership of this covenant. It was the pièce de résistance in the mobilization of Priestly national propaganda: “And if any male who is uncircumcised fails to circumcise the Àesh of his foreskin, that person shall be cut off from his kin; he has broken My covenant” (Gen 17:14). Mircea Eliade’s survey of initiation and puberty rites in Australia, New Guinea and Africa con¿rms also that “puberty initiations are performed under the sponsorship of specialists in the sacred—which comes down to saying that they are ¿nally controlled by men with a certain religious vocation.”183 This analysis of the biblical Priestly “vocation” indicates that it was motivated as much by the validation of genealogical decent, the establishment of select lineage and the implementation of sacral authority: each of which perpetuated the Priestly control of the Temple cult. Furthermore, the rite marked the eight-day-old Israelite for service of their chosen God, which in Gen 17:1–21 was El Shaddai.184 This timing effectively eliminated the succession rights of Abraham’s remaining descendants, that is, Ishmael, who was circumcised at the same time, but at the age of thirteen (Gen 17:25), precisely as Victor Hamilton notes: “there is no covenant here, as there is to be with Isaac.”185 182. As Gen 25:5 con¿rms: “Abraham willed all that he was owned to Isaac; but to Abraham’s sons by concubines Abraham gave gifts while he was still living, and he sent them away from his son Isaac eastward…” 183. M. Eliade, Rites and Symbols of Initiation: The Mysteries of Birth and Rebirth (trans. W. R. Trask; New York: Harper & Row, 1958), 39. 184. “It should also be stressed that circumcision is an act which changes a fact of birth and thus may carry associations other than biological descent and continuity of the male line. The results of circumcision are birth-like, in that it creates an almost indelible impression upon the human body from an early age, but the act itself is an act of will. When performed at eight days, it must involve other people and easily becomes an indication of submission to another’s (the group’s and God’s). Equally, it may be argued that the penis serves well as a sign of alliance—a symbol of connection par excellence—and thereby just as ‘naturally’ can serve as a sign of covenantal relationship as it can indicate male descent,” H. E. Goldberg, “Cambridge in the Land of Canaan: Descent, Alliance, Circumcision and Instruction in the Bible,” JANES 24 (1996): 8–34 (25). 185. Hamilton, The Book of Genesis, 478. Hamilton adds: “The listing of the promises to Ishmael demonstrates that he is not rejected by God as the covenant heir 1

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It is here that the underlying objectives in the speci¿cation of this rite were not unlike those imposed by the Neo-Assyrian treaties, as clari¿ed by Simo Parpola and Kazuko Watanabe: They were the very means of enlarging the empire, binding new acquisitions to it permanently, regulating international trade, channeling a Àow of goods and raw materials to the centre of the empire, adding to the imperial army, tying the hands of enemy powers, and securing the safety of the king and the transfer of power to a successor of the emperor’s own choice. In short, they were the very thing that made the Assyrian empire an empire.186

In comparative terms, the rite of circumcision similarly provided the practical means for identifying the children of Israel as the only legitimate descendants of Abraham, of “binding new acquisitions” to the broader kinship group, namely foreign slaves, if not resident aliens or sojourners also,187 yet without the use of either military force or an imperial army. The authority of the priests and their ability to secure the transfer of this authority to their sons, like the stipulations of the covenant, were guaranteed “throughout the ages” (Gen 17:12).188 To complete the analogy: in short, circumcision was the very thing that made Isaac and his sons Israelites. As Victor Hamilton observes of each man: “Every time he looks at his body he is reminded that he is part of Yahweh’s covenant. Thus interpreted, circumcision is a mnemonic sign, reminding God’s people of who they are (as in Exod 13:9, 16; 31:12–17; Num 15:37–40; Deut 6–8; 11:18; Josh 4:6–7) from what they have been delivered and by whom they have been delivered.”189 Accordingly the cut of circumcision visibly personalized this ĖĈ ġĐğĈ ĔĐğġĈċ, “covenant between the pieces,” on the body of the individual Israelite male, where his Àesh-cut foreskin represented the carcass of the heifer, she-goat, ram, turtle-dove and young bird that activated the promises to Abram in Gen 15:7: promises which were understood exclusively, to be transmitted to the sons of Isaac, Jacob and their descendants. because he is a sinner. He has not disquali¿ed himself in any way, and thus forfeited any privilege. The promises of God—while not totally sidestepping human conduct, are basically unconditional. Divine sovereignty dictates the selection of one son over the other, quite apart from personal life-styles” (479). 186. Parpola and Watanabe, Neo-Assyrian Treaties, xxv. 187. Gen 17:12b–13a reads: “As for the homeborn slave and the one brought from an outsider who is not of your offspring, they must be circumcised, homeborn and purchased alike.” 188. Gen 17:14 has “throughout your generations.” 189. Hamilton, The Book of Genesis, 470. 1

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This representation is recalled on a daily basis, in the recitation of Grace After Meals, when contemporary Jews (both male and female) conventionally thank God daily not only for their food, but also: “your covenant which you have sealed in our Àesh.”190 Not least important is the signi¿cance of circumcision as a seal or mark of ownership, as expressed in the Midrash Tanhuma,191 which states that God sealed his name upon the limbs of the Israelites, as follows: All Israelites who are circumcised enter the Garden of Eden for the Holy One, Blessed be He, has placed his name upon Israel in order for them to enter the Garden of Eden. What then is this name and seal that he placed upon them? This is [the name] Shaddai.192 He placed the letter Ġ on the nose,193 the letter Ċ upon the hand and the letter Đ upon the [organ of] circumcision.194

ĔĐēČĕė ēćğĠĐ ēĒ ĖĊę Ėĉ ĖĐćĈ ćČċ đČğĈ ĠČĊĞċ ĐĒ ēćğĠĐĈ ČĕĠ ĔĠ ĖĊę ĖĉĈ ČĘėĒĐĠ ĐĊĒ ĔġČĎċČ ĔĠċ ċĕČ ĔċĈ ĔĠĠ ĐĊĠ ćČċ ĚćĈ ĔĠ Ė'ĐĠċ ĊĐĈ ġ'ēĊċČ ċēĐĕĈ Ċ'ČĐċČ

The view of Abraham Abula¿ah,195 that at the time of circumcision the divine name ĐĊĠ was inscribed upon the body of the infant, is further discussed by Elliot Wolfson, who observes: “According to yet another thirteenth-century mystical tradition, ¿rst expressed by the kabbalists like Moses de León,196 David ben Judah he-Hasid and the anonymous author 190. That is, ČėğĠĈĈ ġĕġĎĠ đġĐğĈ ēęČ, as per “Grace After Meals,” in Sacks, The Authorized Daily Prayer Book, 760–61. 191. In ćğĞĐČ ğěĘ :ğćČěĕċ ċĕČĎėġ ĠğĊĕ Midrash Tan‫ۊ‬uma Mephoa’r: Sefer Vayikra (Bnei Brak: n.p., 1998), where it appears ¿rst in Parshat Tzav 52:14, secondly in Parshat Shemini 66:9 and thirdly Parshat Tazria‘ 85:5. 192. Gen 17:1 reads: “When Abram was ninety-nine years old, the Lord appeared to Abram and said to him, “I am El Shaddai. Walk in my ways and be blameless.” 193. Midrash Tan‫ۊ‬uma, Parshat Shemini, 66:9 provides ĔĐěćĈ ĔĠ Ė'ĐĠċ “He placed the letter Ġ on their noses.” 194. The midrash, Midrash Tan‫ۊ‬uma, Parshat Tzav, 52:14, concludes: “Therefore when the time arrives for a Jew to move onto his eternal home (ČĕēČę ġĐĈē đēČċ, i.e. to die) an angel is appointed in the Garden of Eden, who takes every circumcised male Israelite and brings him into the Garden of Eden.” 195. Abraham ben Samuel Abula¿a (kabbalistic scholar and visionary) was born in Saragossa in Aragon in 1240 and died ca. 1291 in Cornino (Malta). 196. As in the Zohar (Lekh Lekha) 1:95a–b: “The holy mark Đ (yod) is revealed within them—the sign of the perfect covenant—so ĐĊĠ (Shaddai) is inscribed in them and completely ful¿lled. So here it is written ‘I am El Shaddai: Walk in My ways and be perfect—complete, for now you are defective, inscribed with Ċ'Ġ (shin 1

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of Tiqqune Zohar, the Tetragrammaton is inscribed or engraved upon a person’s face.”197 It is in this context that the contemporary liturgical blessing highlights not only the Priestly ġĐğĈċ ġČć198 (the sign of the covenant), but the subsequent rabbinic ĔġĎ or “seal” that “marked the decree of circumcision in his Àesh.”199 These developments demonstrate the crucial objective underlying this rite in biblical and rabbinic tradition: legitimate possession and ownership of the new-born boy is now contractually “signed” and sealed by virtue of his circumcision. Almost unnoticeably, in the subsequent liturgical sequence the rabbinic seal now takes halakhic precedence over the Priestly sign of the covenant: ĠĊĞ ġĐğĈ ġČćĈ ĔġĎ ČĐćĝćĝČ (“and [he] gave his descendants the seal and sign”).200

dalet). Circumcise yourself and become complete with the inscription of ĐĊĠ (Shaddai).” Translation from ğċčċ ğěĘ The Zohar: Prizker Edition, vol. 1 (trans. and commentary D. C. Matt; Stanford: Stanford University Press, 2004), 103–4. 197. E. R. Wolfson, “Circumcision and the Divine Name: A Study in the Transmission of Esoteric Doctrine,” JQR 78, no. 1–2 (1987): 77–112 (77 n. 1). 198. Gen 17:11 reads: “You shall circumcise the Àesh of your foreskin and that shall be the sign of the covenant (ġĐğĈ ġČćē ċĐċČ) between you and me.” 199. The Hebrew phrase ĔĠ ČğĠĈ ĞČĎ, meaning “marked the decree [of circumcision] in his Àesh,” is translated from the “Service at a Circumcision” in Sacks, The Authorized Daily Prayer Book, 802. 200. Ibid., 801–2. 1

Chapter 3

TALION IN BIBLICAL LAW AND NARRATIVE

3.1. De¿nitions and Parameters This chapter will examine the law of retaliation, also known as lex talionis,1 where the “life for life, eye for eye, tooth for tooth, hand for hand, foot for foot”2 requirement invites the challenging question: How was talion conceived in Israel’s authorized traditions, with regard to each body part or organ listed in this precedent? My response will be presented in the following stages: x

x x

First, Haim Cohn’s de¿nition of talion will be justi¿ed where, I suggest, the death penalty for homicide is relevant to the conception of this principle. An account of the talionic modes of punishment, to include ¿nite, instrumental, reÀective and symbolic forms, with separate reference to military talionic convention, will here be provided. Secondly, the function of talion in Israel’s national memory will be traced in Talion: The Divine Prerogative. Thirdly, an examination of ¿nite talion in the Covenant Code will indicate that the Ġěė ġĎġ Ġěė (“life for life”) principle in Exod 21:23 denoted living, human substitution and was also in keeping with notions of surety-ship and pledge in the patriarchal

1. “The effect of the talionic principle is to limit revenge to an injury commensurate with that inÀicted,” as de¿ned by Westbrook, Studies in Biblical and Cuneiform Law, 71. See also the more recent discussion in J. Rothkamm, Talio esto: recherches sur les origines de la formule “œil pour œil, dent pour dent” dans les droits du Proche-Orient ancien, et sur son devenir dans le monde gréco-romain (Berlin: de Gruyter, 2011). 2. While the expression “life for life” is not strictly within the scope of a study on physical mutilation, given the prominence of Ġěė ġĎġ Ġěė at the head of the talionic formula it cannot be ignored. However, the “burn for burn, bruise for bruise, wound for wound” examplar in the Covenant Code will not be considered, since this research is concerned only with explicitly permanent dis¿gurements.

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x

x

69

narratives. It will be shown that this principle is terminologically distinct from the death penalty and ¿nancial liabilities in this corpus. Fourthly, the relationship between reÀective talion and the ğĠćĒ (kaasher) formulation will be followed by an evaluation of the symbolism of human (corpse) remains. Here, I suggest that although symbolic representations of physical mutilation were absent in the ďĠě, or “plain sense” understanding of biblical law, they were, nevertheless, clearly evoked in historiographical and prophetic memories. Such representations were also at the forefront of Deuteronomic law, as evident in the examination of Deut 25:5–10. Finally, punitive injuries of the eyes, teeth, hands and feet will be identi¿ed as examples of instrumental, reÀective and symbolic punishments rather than examples of ¿nite talion, when interpreted through the lens of inner-biblical, Second Temple and early rabbinic traditions.

In terms of contemporary de¿nitions, Bernard Jackson explains: it ought to be stressed that the term talion is rightly applied only where non-fatal bodily injuries are involved, and where the offender is punished by suffering the same fate as he inÀicted. Thus the death penalty for murder is not an example of talion. Much confusion results from the assumption that the law of murder and assault follow the same history. Nor are punishments involving the part of the offender’s body most directly concerned with the offence (as Deut. 25:12) talion.3

Clearly the death penalty in the Covenant Code is not presented as a form of talion,4 and nor do the processes of murder and assault “follow the same history,”5 yet it must also be recognized that the loss of the unborn child (Exod 21:22–24) was not necessarily viewed an act of homicide, or murder, either.6 And it precisely this injury which quali¿es 3. B. S. Jackson, “The Problem of Exodus XXI 22–25 (‘Ius Talionis’),” VT 37 (1973): 273–304 (281 n. 1). 4. This will be fully substantiated in Section 3.3.4, “ġĕČĐ ġČĕ: The Death Penalty in the Covenant Code.” 5. Jackson, “The Problem of Exodus XXI 22–25,” 281 n. 1. 6. As Sophie Lafont has clari¿ed: “To consider miscarriage as a homicide is especially debatable for a judicial reason: the statement of the rule of talion in vv.23–24, beginning with the words ‘[you shall compensate] life for life’ does not refer to the death penalty but to a substitution in nature or in money, in reparation for the damage, is tenable only if it is assumed a priori that homicide is necessarily capital, which is not always the case.” Lafont, “Ancient Near Eastern Laws,” 112. See also G. Cardascia, “La place du talion dans l’histoire du droit penal à la lumière 1

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for talionic penalties in the Covenant Code. This study will indicate that (as was the case for the rape of an un-betrothed Israelite daughter) the loss of the unborn child was viewed primarily as an infringement of male property rights.7 The fact that “the death penalty for murder is not an example of talion”8 does not diminish this legal reality, nor does it justify excluding miscarriage from the requirement of talion, particularly when the appearance of Ġěė ġĎġ Ġěė, “a life for a life,” at the head of the formulation, did not restrict the biblical principle to non-fatal physical injuries. Finally, I will argue that “punishments involving the part of the offender’s body most directly concerned with the offence,” were conceived as a form of talionic mutilation, albeit not in ¿nite or “strict sense” terms, where I have also found Haim Cohn’s de¿nition of talion to be the more appropriate: A concept of punishment whereby the prescribed penalty is identical with, or equivalent to, the offense. Identical or “true” talions are death for homicide (“Whosoever sheddeth a man’s blood by man shall his blood be shed”: Gen. 9:6), wounding for wounding (“an eye for an eye”: Exod. 21:23–25; Lev. 24:19–20), and doing to the false witness “as he purported to do unto his fellow” (Deut. 19:19).9

To re¿ne our understanding of this principle further, I suggest that the talionic processes witnessed in the Hebrew Bible can be classi¿ed into the following forms: x Finite or strict sense talion represented precise mutilation for damage to an identical body part or limb, as presented in the ĖĐę ĖĐę ġĎġ (“eye for an eye”) formulation in Exod 21:24 and Lev 24:20.10 This reÀects the earlier Babylonian law, LH 196: “If an awƯlu11 should blind the eye of another awƯlu of his own rank, they shall blind his eye.” It is recalled also in the formulation of ĖĠ ġĎġ ĖĠ (“a toot hfor tooth”),12 and in the similarity between des droit du Proche-Orient ancient,” in Mélanges offerts à Jean Dauvilliers (Toulouse: Université des sciences sociales de Toulouse, 1979), 169–83. 7. Bernard Jackson made this point in relation to the laws of rape in Exod 22:15– 16 and Deut 22:28–29; see Jackson, Wisdom Laws, 383. 8. Jackson, “The Problem of Exodus XXI 22–25,” 281 n. 1. 9. H. Cohn, “Talion,” in Encyclopaedia Judaica, vol. 19 (ed. M. Berenbaum and F. Skolnik; 2d ed.; Detroit: Macmillan Reference, 2007), 463. 10. Note also variant form ĖĐęĈ ĖĐę in Deut 19:21. 11. An awƯlu was a man who was neither enslaved nor a muškenu (i.e. a commoner), who appears in the uppermost social rank in Codex Hammurabi. 12. Deut 19:21 reads ĖĠĈ ĖĠ, which parallels LH 200: “If an awƯlu knock the tooth of another awƯlu, in his own rank, they shall knock out his tooth.” 1

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ğĈĠ ġĎġ ğĈĠ (“fracture for fracture”) in Lev 24:20 and LH 197.13

Judges 1:6–7 is considered “the only biblical source which mentions the actual inÀiction of (‘literal’) talio,”14 where “Adoni-Bezek Àed, but they pursued him and captured him: and they cut off his thumbs and his big toes. Seventy kings, with thumbs and toes cut off, used to pick up scraps under my table, as I have done, so God has requited me.”15 x Instrumental talion: This describes an injury of the body part responsible for initiating or activating the crime and has been designated by Yael Shemesh as a “punishment of the offending organ.”16 It is exempli¿ed in Prov 30:17, where “the eye that mocks a father and disdains the homage due to a mother; the ravens of the brook shall gouge it out; young eagles will devour it.” This form of punishment recalls earlier Babylonian law, where failure to recognize one’s adoptive parents is punishable by plucking out the child’s eye.17 x ReÀective talion: These punishments mirror the crime or negative character trait of the perpetrator, and project them back onto his (or her) person. ReÀective talion is evident in the account of Absalom’s untimely death, explained by his vanity in the luxuriance of his hair:18 “Absalom was riding on a mule and as the mule passed under the tangled branches of a great terebinth, his hair got caught in the terebinth; he was held between heaven and earth as the mule kept going.”19 This “idea of an intrinsic link between act and 13. “If he shall break the bone of another awƯlu they shall break his bone.” 14. Jackson, Wisdom Laws, 191. 15. Bernard Jackson explains further, “although he had mutilated 70 kings, punishment—in a form he is made to ascribe to divine justice—is restricted to him,” ibid. 16. Y. Shemesh, “Punishment of the Offending Organ in Biblical Literature,” VT 55 (2005): 343–65 (343). The term “instrumental talion” was suggested by Bernard Jackson during a discussion of an earlier version of the present chapter. 17. LH 193: “If the child of (i.e. reared by) a courtier (mar girseqîm) or the child of (i.e. reared by) a sekretu identi¿es with his father’s house and rejects the father who raised him or the mother who raised him and departs for his father’s house, they shall pluck out his eye.” 18. 2 Sam 14:25–26: “No one in all Israel was so admired for his beauty as Absalom; from the sole of his foot to the crown of his head he was without blemish. When he cut his hair—he had to have it cut every year for it grew too heavy for him—the hair of his head weighed two hundred shekels by the royal weight.” See also M. Avioz, “The Motif of Beauty in the Books of Samuel,” VT 59 (2009): 341– 59 (351–52). 19. 2 Sam 18:9, as also m. Sotah 1:8. 1

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consequence”20 is explained also by Alexander Rofé: “the punishment ¿ts the crime in that it reÀects its character in some way, sometimes even to the extent that the crime itself becomes the punishment,”21 and is as the Psalmist explains: “his mischief will recoil upon his own head; his lawlessness will come down upon his skull” (Ps 7:17).22 x Symbolic Talion: In these cases punishment was effected by symbolic means that were clearly understood in “the general collectiverepresentational Weltanschauung of the biblical culture.”23 The process of symbolic talion extended beyond punishment of the criminal and conveyed the additional message that appropriate judicial restitution had been provided. Such symbolism is recalled in earlier Sumerian and Old Babylonian traditions where the representation of the šƝpu(m), or foot, was used to denote a person’s share in the family inheritance. In the legal context, the expression šƝpa šulû šƝpa šakƗnu, “to lift the foot [and] to place the foot,” when accompanied by a symbolic act, was “constitutive of actually coming into possession of the property upon which one’s foot was 20. J. Blenkinsopp, Wisdom and Law in the Old Testament: The Ordering of Life in Israel and Early Judaism (2d edn; Oxford: Oxford University Press, 1995), 47, supports this with the statement from Prov 26:27–28: “He who digs a pit will fall into it and whoever rolls a stone, it will roll back on him. A lying tongue hates those crushed by it; smooth speech throws one down.” 21. See Alexander Rofé, “Family and Sex Laws in Deuteronomy and the Book of the Covenant,” Henoch 9 (1987): 131–58 (151–52). Mary Douglas classi¿es these actions as “equivalent retaliation,” as follows: “The principle of equivalent retaliation is quite blatant in the narrative books: Why did Jezebel die by falling out of a high window? Answer: the false woman built high places for false gods,” M. Douglas, Leviticus as Literature (Oxford: Oxford University Press, 1999), 214. Note also the Psalmist’s observation in Ps 17:19b: “He who builds a high threshold invites broken bones.” 22. Consider also Eccl 10:8–9 and Est 9:25, where Haman was hung on the gallows intended for Mordechai: “With the promulgation of this decree, let the evil plot, which he devised against the Jews recoil on his own head.” See also Beate Ego’s de¿nition of “Speigelstrafe” as a principle where “the crime someone commits corresponds to the punishment he receives,” in “God’s Justice: The ‘Measure for Measure’ Principle in 2 Maccabees,” in The Books of the Maccabees: History, Theology, Ideology. Papers on the Second International Conference on the Deuterocanonical Books, Pápa, Hungary, 9–11 June, 2005 (ed. G. G. Xeravits and J. Zsengellér; JSJSup 118; Leiden: Brill, 2007), 141–54 (142). See also Propp, Exodus 19–40, 230. 23. M. Malul, Knowledge, Control and Sex: Studies in Biblical Thought, Culture, and Worldview (Tel Aviv-Jaffa: Archaeological Center Publication, 2002). 4. 1

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placed.”24 This context provides the background for the institution of levirate marriage, where Alexander Rofé also identi¿es Deut 25:5–10 as a case of “symbolic talio.”25 Here, “the man who refuses to attend to his dead brother’s ‘name’ brings shame upon his own: his house will be known in Israel as ‘the family of the unsandaled one’.”26 This symbolism underlined not only the Deuteronomic ċĝēĎ ceremonial,27 but I suggest also the ēĉğ ġĎġ ēĉğ (“foot for foot”) clause in the Covenant Code formulation of talion. x Finally, there is the related area of military talionic convention, which involved mutilating one’s enemy as a means of providing visible evidence of their defeat. Examples of these are preserved in Israel’s historiographical accounts of the pre-exilic period and were akin also to the form of reÀective talion.28 This category also includes accounts of post-mortem retributive mutilations,29 which will become relevant in the discussion offered in Section 3.6.3, “ ĊĐ ĊĐ ġĎġ: ‘A Hand for a Hand,’ or His Name and His Seed?” In each of the above cases (with the exception of military talionic convention), “wisdom operates on a principle of analogy, where individual action determines individual fate in a system of connective justice.”30 No account of either the historical development of biblical talionic law, nor textual reconstructions of the origins of the formula will be attempted.31 In relation to the question—How was talion conceivably 24. Ibid., 173. 25. Rofé, “Family and Sex Laws,” 151. Examples of both “symbolic talio” and “mirror punishments” are examined in Rofé’s discussion. 26. Ibid., 152. 27. The unwanted widow pulls off the sandal of the levir in Deut 25:9: ċĝēĎČ ČĐēĉğ ēęĕ Čēęė. 28. Ps 137:8: “Fair Babylon, you predator: A blessing on him who repays you in kind what you have inÀicted on us; a blessing on him who seizes your babies and dashes them against the rocks.” 29. The designation “post-mortem retributive mutilations” was suggested by Deborah Rooke, during her supervision of my MA thesis at King’s College, London, to denote the amputation of limbs of corpses in the immediate aftermath of battle. 30. As M. Oeming, “Wisdom as a Central Category in the Book of the Chronicler: The Signi¿cance of the Talio Principle in a Sapiential Construction of History,” in Shai le-Sara Japhet: Studies in the Bible, Its Exegesis and Its Language (ed. M. Bar-Asher et al.; Jerusalem: Bialik Institute, 2007), 125–41 (138). 31. Suf¿ce to say that the earliest oral derivations of Covenant Code law were potentially circulated in the ninth and eighth centuries. A considerably later dating is argued by John Van Seters, A Law Book for the Diaspora: Revision in the Study of the Covenant Code (Oxford: Oxford University Press, 2003), who considers authorship of these laws to be post-exilic. 1

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intended in Israel’s early biblical traditions?—it will be more valuable to admit that the ¿nal form of the laws originated largely as prevalent social norms, as Bernard Jackson has suggested.32 Although the original Sitz im Leben and the pre-institutional origins of biblical law remain inevitably elusive, the textual development of the Covenant Code provisions can broadly be reconstructed in the sequential stages, as follows: 1. The circulation of individual rules in oral form, appealing to custom, utility and their own (rhetorical, self-evident?) sense of justice. 2. The compilation of written collections, based on documents emanating from the central authorities. 3. The incorporation of the ¿nal redaction within its present theologico-narrative context.33 In studying the pre-history of Covenant Code legislation, it is also clear that neither “individual rules in oral form” nor “the compilations of written collections” took place in isolation, but were profoundly inÀuenced by the norms in the prevalent cultural environment. Here Raymond Westbrook identi¿es the autonomous nature of each separate system, but at the same time suggests the following: Without wishing to press too far more recent historical models, such as the spread of Roman law or of the English Common Law, I would argue that all the ancient near Eastern systems belonged in varying degrees to a common legal culture, one very different from any that obtains today. At the very least, they shared a legal ontology: a way of looking at the law that reÀected their view of the world and determined the horizon of the lawmaker.34

32. Jackson, Wisdom Laws, 6. Jackson’s de¿nition of “prevalent social norms” is consistent with Wilfred Lambert’s identi¿cation of “customary unwritten law”: “The ancient laws were never meant as a comprehensive guide to legally permissible and impermissible conduct. They often presume generally understood matters. For example, theft and murder are not dealt with as such in Hammurabi’s laws, only a few very special types of each for which guidance was needed. Similarly with bestiality, neither the Middle Assyrian laws nor those of Hammurabi mention it, but one should not conclude that it was therefore permissible. The courts could condemn people for things not mentioned in written laws. They would be guided by unwritten customary law.” W. G. Lambert, “Prostitution,” Oussensseiter und Randgruppen: Xenia 32 (1992): 127–59 (147). 33. See Jackson, Wisdom Laws, 68 and 445–53. 34. R. Westbrook, “The Character of Ancient Near Eastern Law,” in Westbrook, ed., A History of Ancient Near Eastern Law, 1:1–90 (4). 1

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Westbrook’s “legal synchronic” reading has been challenged for relying too heavily upon contemporary systems: “Overall, Westbrook adopts a model of legal system strongly inÀuenced by modern jurisprudence. It is based on the positivist conception of ‘sources of law’, and the roles that he attributes to these sources is highly reminiscent of the English Common Law before legislation took on its modern importance: ‘Hammurabi’ becomes a kind of Glanvil.”35 Yet without falling into this anachronistic trap, it is otherwise clear that the priority attributed to the Laws of Hammurabi is justi¿ed by its being the most widespread and frequently recorded series of laws evidenced in the ancient Near East.36 The diorite stele that is now held at the Louvre was ¿rst erected in Babylon and initially taken as booty by the Elamites, who effaced a number of the provisions originally engraved.37 Numerous copies and fragments (including a bilingual Sumerian–Akkadian manuscript) are attested at other sites in Mesopotamia until the ¿rst millennium. This is not to suggest that it was merely some ancient “kind of Glanvil” but to acknowledge appropriately the extent of its inÀuence lasting nearly a thousand years.38 In the context of the Neo-Assyrian legal and political correlations that are about to be presented, the fact that “the Laws of Hammurabi won such cultural prestige that it was recopied for more than a millennium after its composition in roughly 1755 BCE, and the NeoAssyrian king Assurbanipal included the texts in his library of cultural classics at Nineveh,”39 is highly signi¿cant.40

35. Jackson, Wisdom Laws, 16. 36. This not the case with any of the other ancient Near Eastern law codes, which are often attested in no more than two or three copies preserved in a single location. 37. The stele was excavated in 1901–1902 at the Elamite capital of Susa (the biblical Shushan), although it was probably originally located in Sippar, before it was taken by Shutruk-Na¨¨unte I. According to Roth, “Fragments of yet a second and possibly third stela recording Hammurabi’s Laws were also excavated in the same palace, which suggests that the monuments, multiple copies of which were erected in Babylonian cities, were highly prized plunder,” Roth, LCMA, 73. 38. Ibid., 73–74. 39. Levinson, Legal Revision, 24. 40. To what extent the promulgation of the Hammurabi’s Code functioned as a form of “canonization,” as advocated by Avigdor Hurowitz is beyond the scope of the present study: “BrieÀy stated, Hammurabi’s laws enjoyed divine impetus and royal authority, were published in written form and publicized orally, were intended to be normative, and even though they never realized their intended status they were studied, interpreted and emulated in the schools of ancient Mesopotamia. Moreover, the description of the promulgation of laws is very similar to the description of promulgating the Torah in Deut 31–32. It is only the myopic view of ‘canonization’ 1

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It may therefore be more valuable to appreciate that “inÀuences from one quarter…do not preclude promiscuous intermingling with material from another tradition…; inÀuences need not be a graft, but can also be a stimulus that brings into prominence a feature that had been previously present, but not important.”41 Such “promiscuous mingling” occurs in the formal damages attested for non-fatal injuries in early Sumerian, Babylonian, Assyrian and biblical sources. With reference to corporal punishments, parallels will be identi¿ed not only in the various legal collections, but where available in individual case law records also. Reasonable care will be taken not to attribute any preconceived assumptions concerning either the LH or any other code, although it will become fully apparent that this shared “legal ontology” was reÀected even in the talionic “self-executing laws,” that is, those “laws designed for the implementation by the parties themselves, without the need for recourse to third-party adjudication.”42 This reality does not pre-suppose that elements in these traditions were static, or unchanging, since ongoing innovation and diversity of application would have been necessary to accommodate individual cases at all times.43 Yet it is also evident that the laws in Exod 21:19–22:23 replicate the order, arrangement and thematic schema of those in Hammurabi’s code, as David Wright’s “hypothesis of textual dependence”44 has demonstrated, even though a cursory reading of both texts reveals there are

as a process limited mainly to text stabilization that has blinded Assyriologists to the aspects of LH resembling the biblical canon, on the one hand, and the New Testament canon, on the other.” Hurowitz, “Hammrabi in Mesopotamian Tradition,” 500. 41. As Ya’akov Elman, “ ‘He in His Cloak and She in Her Cloak’: ConÀicting Images of Sexuality in Sassanian Mesopotamia,” in Discussing Cultural InÀuences: Text, Context and Non Text in Rabbinic Judaism (ed. R. Ulmer; Lanham, MD: University Press of America, 2007), 129–63 (130). 42. As designated by Jackson, Wisdom Laws, 29. 43. Sophie Lafont concludes similarly: “It is true that the Mesopotamian, Hittite and Hebrew codes share a common tenor, which justi¿es their belonging to one and the same judicial and cultural entity. But behind this uniformity, particularisms, that is adaptations, appear in various judicial ¿elds,” Lafont, “Ancient Near Eastern Laws,” 107. 44. Wright, “The Laws of Hammurabi,” 49. Likewise, “there is a considerable degree of variation both in terms of substantive legal prescription and in expansiveness or economy of expression with respect to any given legal topic. But the range of topics remains relatively uniform throughout the tradition, and the phraseology employed whether in Sumerian or Akkadian, is completely homogenous.” J. J. Finkelstein, “The Ox That Gored,” Transactions of the American Philosophical Society: New Series 71, no. 2 (1981): 1–89 (18). 1

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signi¿cant differences in the resolution of the individual parallels. While it is by no means certain that this earlier Babylonian collection constituted the principal source for Covenant Code legislation,45 what is about to become evident is that the formulation of the talionic principle (at least in Exod 21:23–25) witnesses inÀuence also from Middle Assyrian law, if not also subsequent Neo-Assyrian political treaty terminology, lending a further degree of support for Westbrook’s “legal synchronic reading.”46 Before examining these inÀuences further, it is ¿rst necessary to explain the function of talion as a divinely activated process in biblical memory. 3.2. Talion: The Divine Prerogative In ancient Sumer and Mesopotamia the establishment of authoritative judicial rulings were associated with the position of the king, whose enactment of just laws signi¿ed divine approval in his investiture.47 Ephraim Speiser clari¿es this relationship as follows: The basic premise of cuneiform law, the source to which the institution as a whole owed both its content and its vitality, may be summarized as follows: The human ruler is but a temporary trustee who is responsible to the gods for the implementation of the cosmic design. Because the king is thus answerable to powers outside himself, his subjects are automatically protected against autocracy, and the individual has the comfort and assurance of inalienable rights.48

As such, both divine and human societies were understood as deeply and inextricably interfused, where changes in the natural environment echoed cosmic conditions and, concommitantly, divine engagement reÀected mortal action.49 Accordingly, “misconduct on the part of man was sure to 45. Wright, Inventing God’s Law, 346–52. 46. Westbrook, “The Character of Ancient Near Eastern Law,” 4. 47. As conveyed (for example) in interpretation of the iconography in the investiture of King Hammurabi by the sun god, Shamash, on his stele. See further J. Westenholtz, “The King, the Emperor and the Empire: Continuity and Discontinuity of Royal Representation in Text and Image,” in The Heirs of Assyria: Proceedings of the Opening Symposium of the Assyrian and Babylonian Intellectual Heritage Project, Held at Tvärminne, Finland, October 8–11 1998 (ed. S. Aro and R. M. Whiting; Helsinki: The Neo-Assyrian Text Corpus Project, 2000), 99–125 48. E. A. Speiser, “Cuneiform Law and the History of Civilization,” Proceedings of the American Philosophical Society 107, no. 6 (1963): 536–41 (537). 49. This reality was explicit likewise in biblical tradition, (for example) in the request of the ship’s captain to Jonah in the wake of the storm: “Up! Call upon your god! Perhaps the god will be kind to us and we will not perish” (Jonah 1:6). 1

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trigger divine retribution”50—a premise that was thought to be no less true in the unfolding epic of Israel’s national memory, where the Covenant Code represents her earliest collection of law.51 Yet the extent to which this collection represents a code of law actually enforced by the courts, or was an “ideal” text is uncertain.52 Furthermore, “state law itself makes ideological claims and has aspirational aspects; ‘ideal’ texts themselves have their authors and their users, whose purposes may not be unrelated to the state legal system.”53 It is the “aspirational” background of these potentially “self-executing laws,”54 where the role of talion as “a basic judicial thought structure in Yahwistic literature”55 was the very driving force, if not the virtual operating system, of the God of Israel.56 A singular vein of retaliation slots almost 50. Finkelstein, “The Ox That Gored,” 11; see also J. Z. Lauterbach’s informative discussion of “the logical consequence of the doctrine concerning Divine Providence and the manner in which the affairs of this world are administered by the heavenly powers,” in “The Belief in the Power of the Word,” HUCA 14 (1939): 287–302 (302). 51. The view of John Van Seters, that Deuteronomic law and the Holiness Code were paradigms later revised by J in his formation of the Covenant Code during the post-exilic period, remains largely unsupported. Objections to his position have been published by Eckart Otto, Review of John Van Seters, A Law Book for the Diaspora: Revision in the Study of the Covenant Code, RBL. Online: (July 2004), 1–4, and Bernard Jackson, “Revolution in Biblical Law: Some ReÀections on the Role of Theory in Methodology,” JSS 50 (2005): 83–115 (83–98). Their criticisms are reinforced also by the positions taken both by Sarah Japhet, “The Relationship Between the Legal Corpora in the Pentateuch in Light of Manumission Laws,” Scripta Hierosolymitana 31 (1986): 63–89, and Yair Zakovitch, “The Boomerang Phenomenon: Covenant Code Rebounds on the Covenant Code” (Hebrew), in Texts and Temples: A Tribute to Menahem Haran (ed. M. V. Fox et al.; Winona Lake: Eisenbrauns, 1996), 59–64. 52. Michael LeFebvre prefers to see the biblical provisions as “idyllic descriptions of the law”; see his Collections, Codes, and Torah: The Re-Characterization of Israel’s Written Law (LHBOTS 451; New York: T&T Clark International, 2006), 54. 53. Jackson, Wisdom Laws, 3. This is equally applicable to the ancient Near Eastern codes, as per “The Legacy of Cuneiform Law,” in Levinson, Legal Revision, 23–33. 54. Jackson, Wisdom Laws, 29. 55. P. Nel, “The Talion Principle in Old Testament Narratives,” JNSL 20 (1994): 21–29 (27). 56. Manfred Oeming’s argument that “the whole of Chronistic history is based upon the sapiental principle of talio” corroborates this position, where his description of this “sapiental principle” accords with the de¿nition of reÀective talion provided in this chapter. See Oeming, “Wisdom as a Central Category,” 139–40. 1

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seamlessly into the framework of the patriarchal narratives. “If we ask, then, why Abraham was tested, the answer would appear to reside in the talionic principle, found elsewhere in the patriarchal narratives (Jacob, the deceiver, deceived): here, Abraham, the tester of God (Genesis 15) is in turn tested by God.”57 Such consequences are not simply a coincidental accumulation of subtle literary ironies, but signify faith in the assumed perfection of divine justice and in God’s power to react to human Àaws appropriately. In this context the consequences are circular: the human transgressor receives the same undesirable treatment that he has inÀicted, exemplifying the conception of reÀective talion.58 Yet there is also considerably more than the usual crime–punishment– blame scenario in biblical tradition. A singular quality of mercy surfaces in the virtual talionic response to the patriarchal rejects: Hagar may be thrown out of Abraham’s household and left to die of thirst, but God hears her and will give her the very same reward that he has promised to those who have oppressed her. Her son, Ishmael will indeed become “a great nation.”59 Likewise Jacob’s adored wife Rachel is barren, while the unloved Leah produces an unbroken string of boys in quick succession. Israel’s perception of retributive justice develops, admittedly not entirely consistently, in both the patriarchal and early monarchic narratives. With regard to the plots in Gen 38 (Tamar and Judah), Ruth and Judg 13–16 (Samson) it is also clear that “not only is the organic completeness of the story units determined by a prevailing judicial order, but the story-cycle of Israel’s early history is guided by a supreme Providence that could not be divorced from the principle of talion.”60 As Mary Douglas has argued, such underlying principles provide powerful doctrinal directives:

57. Jackson, Studies in The Semiotics, 241. In Gen 15:2 Abram responds to God’s promise, “O Lord God, what can you give me, seeing that I die childless,” and in 15:8 to the promise of land, “O Lord God, how shall I know that I am to possess it?” 58. As was also understood in early rabbinic thought. See Yael Shemesh’s excellent treatment “Punishment of the Offending Organ,” 343–65, for an analysis of the ċĊĕ ĊĉėĒ ċĊĕ, “measure for measure,” punishments in subsequent Second Temple and rabbinic literature and also Richard Haase’s discussion of “Gleiches mit Gleichem,” in “Talion und spiegelnde Strafe in den keilschriftlichen Rechtscorpora,” ZABR 3 (1997): 195–201 (195). 59. In Gen 9:16 Hagar is informed of the birth of her son and the promise of his destiny. In Gen 21:18 God hears Ishmael’s cry and responds,“Come lift up the boy and hold him by the hand, for I will make a great nation of him.” 60. Nel, “The Talion Principle,” 27. 1

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The Body as Property The various statements of talion law in Exod 21 and Lev 24 refer to a plan of divine reciprocity, which is in full account with the doctrine of divine generosity. The people of Israel have only to repent and the Lord will forgive. He has given them the means to reach him and makes reparation for their transgressions in the blood of their atonement.61

Divine retribution was also an explicit feature in the ancient Mesopotamian epic imagination, particularly since “both Mesopotamia and Israel shared a historical perspective that held the gods responsible for the events that caused the fall of nations.”62 This is clear in the case of Gilgamesh, the ruler who is “driven by his superhuman energies and powerful ambitions, [and] has by his excessive and relentless demands on his people become their oppressor.”63 His search for Utanapishtim, the sole immortal man on earth, is motivated by his desire to escape the inevitable fate of death. Tablet XI records their meeting and, in particular, Utanapishtim’s account of the aftermath of the deluge, where Utanapishtim explains that once he and his wife returned to dry land, they provided the appropriate thanksgiving offerings to the gods, who descended like Àies. Once sated, a fascinating conversation between Enlil64 and Ea ensues.65 An insight into the perception of divine retribution is provided, as Utanapishtim recalls Ea’s response: at-ta apkal (ABGAL) ili dMEŠ qu-ra-du ki-i ki-i la tam-ta-lik-ma a-bu-bu taš-k[un] be-el ar-ni e-mid ¨I-Óa-a-šu be-el ar-ni e-mid gil-lat[su]

You sage of the gods, you hero, How could you lack counsel and cause the deluge? On him who commits a sin, inÀict his crime! On him who commits a wrong, inÀict [his] wrongdoing!

61. M. Douglas, “Sacred Contagion,” in Reading Leviticus: A Conversation With Mary Douglas (ed. J. F. A. Sawyer; Shef¿eld: Shef¿eld Academic, 1996), 86–106 (106). 62. T. S. Frymer-Kensky, in Studies in Bible and Feminist Criticism (Philadelphia: JPS, 2006), 307–14 (308) (reprinted from “The Theology of Catastrophe: A Question of Historical Justice,” Beer-Sheva 3 [1982]: 121–24). 63. B. R. Foster, The Epic of Gilgamesh: A New Translation, Analogues and Criticism (New York: W. W. Norton, 2001), 172. 64. Enlil, the chief god of Nippur, “personi¿ed vital forces inherent in that part of the cosmic geography—from the surface of the earth up to the vaults of the skies—which most immediately affected the well-being of mankind (and of all living things).” Finkelstein, “The Ox That Gored,” 9. 65. Ea is the Akkadian name for the Sumerian Enki, god of wisdom, magic and fresh water, who is known for his ingenious solutions to dilemmas and for his goodness towards humanity. 1

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Slack off, lest it be snapped! Pull taut, least it become [slack!].66

In ancient Mesopotamia even the gods are bound here by (reÀective) talionic convention: “on him who commits a sin, inÀict his crime,” as Ea’s caution to Enlil indicates. This underlines the normative crime and punishment process, where Ea suggests that less widespread human destruction would have been a more appropriate option: “Instead of the deluge you caused, lion could arise to diminish the people…wolf could arise to diminish the people…famine could happen to slaughter the land…Erra67 could arise to slaughter the land.”68 Such divine action is indicative of the underlying pre-history of the biblical conception of talion, and highlights imperceptible “processes by which myths from one country were adopted by another.”69 In this light the in¿ltration of social conventions and secular law clearly informed Israel’s perception of the role of God as her national redeemer.70 Thus the experience of slavery in (and redemption from) Egypt ultimately imposed higher moral responsibilities, where “Israel’s particular experience is to be taken as a paradigm for its own treatment of the other.”71 In this light the function of Israel’s ĔĊċ ēćČĉ, their “the redeemer of blood,”72 is particularly striking; the Pharaoh who decrees that “every boy that is born you shall throw into the Nile” (Exod 1:22) is punished in

66. Tablet XI, lines 183–87, from George, The Babylonian Gilgamesh Epic, 714 (transcription) and 715 (translation). 67. Erra, also known as Erishkigal, the Queen of the dead and the netherworld, was the sister of the goddess, Ishtar. 68. Lines 189–95, from George, The Babylonian Gilgamesh Epic, 714–17. 69. S. Dalley, “Near Eastern Myths and Legends,” in The Biblical World, vol. 1 (ed. J. Barton; London: Routledge, 2002), 41–64 (44). See also A. Schreiber, Jewish Law and Decision Making: A Study Through Time (Philadelphia: Temple University Press, 1979), 38–42, together with J. Tigay, “Evolution of the Pentateuchal Narratives in the Light of the Evolution of the Gilgamesh Epic,” in Empirical Models for Biblical Criticism (ed. J. H. Tigay; Philadelphia: University of Pennyslvania Press, 1985), 21–52. 70. See David Daube, “Law in the Narratives,” in Studies in Biblical Law (New York: Ktav, 1969), 1–73 (esp. 39–49). 71. B. S. Jackson, “Talion and Purity: Some Glosses on Mary Douglas,” in Reading Leviticus: A Conversation with Mary Douglas (ed. J. F. A. Sawyer; Shef¿eld: Shef¿eld Academic, 1996), 107–23 (122). 72. As speci¿ed in Num 35:18, where David Daube explains: “Thus ēćĉ primarily suggests the return of men or things into their old legitimate place,” Daube, “Law in the Narratives,” 39. 1

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accordingly: “In the middle of the night the Lord struck down all the ¿rst-born in the land of Egypt, from the ¿rst-born of Pharaoh who sat on the throne to the ¿rst-born of the captive who was in the dungeon and all the ¿rst-born of the cattle” (Exod 12:29). For the Israelites in Egypt, it is none other than God who acts as their ĔĊċ ēćČĉ (“blood redeemer”) in confronting the Pharaoh and avenging their losses. It is this underlying meta-narrative that characterizes the laws of the Covenant Code, which also reÀect a number of intriguing parallels from the surrounding Near Eastern environment, notably from the legal, political and ritual contexts. As David Wright notes, “every law or at least aspects of every law in the CCL of CC, have a counterpart in cuneiform law (and) the majority of the correspondences are with the LH in particular.”73 And while the formulations (such as ĖĐę ġĎġ ĖĐę, “an eye for an eye”) correspond in super¿cial terms to their Babylonian counterparts),74 this does not make either their context or resolution similar,75 as will shortly be demonstrated. Admittedly, as Bernard Jackson has argued, “retribution in kind is a natural enough human reaction, and it becomes, par excellence, the standard applied in divine justice. But in that context, given God’s power and knowledge it assumes sophisticated forms.”76 This panorama of “sophisticated forms,” in this study will include descriptions of instrumental, reÀective and symbolic talion, which will be identi¿ed immediately after this next analysis of ¿nite talion in Exod 21:22–24. 3.3. The Requirement of Finite Talion 3.3.1. Ġěė ġĎġ Ġěė, “A Life for a Life,” in the Covenant Code One of the most radical innovations witnessed in the Covenant Code is the transformation of the legal status of the (formerly enslaved) Israelite male, who is re-con¿gured not simply as a free-man, but as an awƯlu, that is, one who has the legal responsibilities to his dependants and “is a

73. Wright, “The Laws of Hammurabi,” 23. 74. I.e. šumma awƯlum Ưn mƗr awƯlim u¨tappid Ưnšu u¨appadu, “If an awƯlu should blind the eye of another awƯlu, they shall blind his eye,” in LH 196. 75. Au contraire the assertion that “the talion laws in the two collections are markedly similar. Both require bodily dis¿gurement in retaliation for bodily dis¿gurement,” Wright, “The Laws of Hammurabi,” 23. 76. B. S. Jackson, “Human Law and Divine Justice in the Methodological Maze of the Mishpatim,” Jewish Law Association Studies XVI, the Boston 2004 Conference Volume (2007): 101–22 (118). 1

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member of the elite or upper class (mostly males).”77 Cyrus Gordon explains this as follows: There are a number of developments in the Hebrew Bible that consist of extending to the entire community principles that in the ancient Near Eastern societies were incumbent only on the uppercrust, such as the rulers or the wealthy. Thus Hammurabi’s Code (V: 15–24, rev. XXIV: 59–62) states that the king was destined to promulgate the Law to protect the weak from the strong. In Ugaritic literature it is the duty of a king to defend the widow, the fatherless and the down-trodden.78

Without wishing to minimize the impact of this innovation it is, nonetheless, evident that the extension of these principles to include “the entire community” did not occur. The responsibility to uphold justice did not extend further than the adult, Israelite male, and formally excluded the female members of biblical societies,79 whose “legal competence— including the power of sexual consent”80 was denied.81 Such realities necessitate also that we do not make the mistake of presuming that the life of a man had the equivalent legal value to that of a woman in biblical law, or that their obligations towards, or entitlements to, justice were identical. With this clari¿ed, this analysis of the formulation Ġěė ġĎġ Ġěė (“a life for a life”) in Exod 21:23 can take place. The phrase appears in

77. According to Roth, LCMA, 8, the muškƝnu is understood in Babylonian law to be a “commoner.” For a summary of the traditional view that the term awƯlu indicated a free citizen, whereas muškƝnu indicated a “royal retainer/palace dependant,” see A. Kuhrt, The Ancient Near East c3000–330 BC (Routledge History of the Ancient World; London: Routledge, 1995, repr. 1997), 1:114, and also K. van der Toorn, Family Religion in Babylonia, Syria and Israel: Continuity and Change in the Forms of Religious Life (SHCANE 7; Leiden: Brill, 1996), 20–26. 78. C. H. Gordon, “The Background of Some Distinctive Values in the Hebrew Bible,” in “Go to the Land I Will Show You”: Studies in Honor of Dwight W. Young (ed. J. E. Coleson and V. H. Matthews; Winona Lake: Eisenbrauns, 1996), 57–68 (62). 79. That Deborah appeared as a political leader in Judg 4:1–23, does not detract from the fact that she is described as a “mother in Israel” (Judg 5:7). The exceptional nature of her leadership is also emphasized by its mention in Judges, a book best known for its depiction of increasing anarchy. 80. R. S. Kawashima, “Could a Woman Say ‘No’ in Biblical Israel? On the Genealogy of Legal Status in Biblical Law and Literature,” AJS Review 35 (2011): 1–22 (8). 81. A woman “could never attain…the same legal status as her male counterpart, unless she were widowed or divorced—that is, detached from the houses of both her father and her husband,” Ibid. 1

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the context of a broader treatment of personal injuries, which are incurred ĔĐĠėć ČĝėĐ ĐĒČ (“when men ¿ght”), and where it constituted a potentially self-executing principle.82 It is preceded by Exod 21:18–19 (ĔĐĠėć ČĈğĐ ĐĒČ, “when two men quarrel”),83 where the assailant is required only to pay for the “idleness” and “cure” for the injuries of his victim.84 These provisions can be sequenced as follows: 21:18–19

Liability for Assaults InÀicted by the Israelite Male For any (non-fatal) physical injury of another Israelite male

21:20–21 21:22 21:23

For Fatal Injury of Dependants: A Slave An Unborn Child A Pregnant Woman

21:24–25 21:26–27

For Non-Fatal Injury of Dependants: A Pregnant Woman Injury of either the tooth or eye of a slave

Yet it is not clear whether the assault sustained in 21:18–19 (pertaining to men only) was also subject the additional talionic penalties provided for the assault of the pregnant woman in 21:24–25.85 I suggest that they were not, and will argue that neither the “life for life” requirement in 21:24 applied to the injury of a male Israelite (when engaged in a ¿ght

82. It is accordingly a ius talionis, rather than a lex talionis; see Jackson, “The Problem of Exodus XXI 22–25,” 273–304. See also C. Houtman, Das Bundesbuch: ein Kommentar (Documenta et monumenta Orientis antiqui 24; Leiden: Brill, 1997), 165–68; B. P. Lee, “Diachrony and Exegesis: Reading Exodus 21:18–27,” in From Babylon to Babel: Essays on Biblical History and Literature in Honour of Brian Peckham (ed. J. Rillett-Wood et al.; LHBOTS 455; New York: T&T Clark International, 2006), 48–55. 83. Exod 21:18–19: “When men quarrel and one strikes the other with a stone or ¿st, and he does not die but has to take to his bed—if he then gets up and walks outdoors upon his staff, the assailant shall go unpunished, except that he must pay for his idleness and cure.” 84. It is also not indicated whether the assaults (in either 21:18–19, 20–21, or 22–25) were accidental or premeditated, although the absence of the phrase “when a man schemes against another” (as was present in Exod 21:14) implies that accidental assaults were presumed. 85. I.e. if the injured man “took to his bed” but later recovered (and received ¿nancial compensation for his time off work and medical costs), would he still be entitled to the talionic “eye for an eye, tooth for tooth, hand for hand, leg for leg” penalties from his assailant? 1

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with another male), and nor did the non-fatal consequences, commencing with the “eye for eye” in Exod 21:24.86 To begin proving my case it is necessary, therefore, to shift focus from the liability of the Israelite male (for injuries inÀicted on another freeborn Israelite male), and concentrate on those incurred by his legal dependants, where the subject of miscarriage was a widespread judicial concern in ancient Near Eastern law, as Sophie Lafont explains: Though he is not assimilated to a human being, the foetus is considered as a rough sketch created by God or the deities. It must therefore be protected, whether in the name of private, collective or religious interests. The sacred aspect which lies behind all these provisions thus justi¿es the rules promulgated by various legislators in antiquity.87

This is no less true of ius talionis in the Covenant Code, built into the hierarchy of personal damages, which continues with the fatal injury of the slave, as follows: Liability for Loss of Life of the Slave: Exodus 21:20–21 When a man strikes ĠĐć ċĒĐ ĐĒČ his slave, male or female, ČġĕćĀġć Čć ČĊĈęĀġć with a rod and he dies, there and then, ČĊĐ ġĎġ ġĕČ ďĈĠĈ he must be avenged. ĔĞėĐ ĔĞė But if he survives a day or two ĊĕęĐ ĔĐĕČĐ Čć ĔČĐĀĔć đć he is not to be avenged, ĔĞĐ ćē since he is the other’s property. ćČċ ČěĘĒ ĐĒ

Here the death of a slave must be “avenged,” although it is not speci¿ed how this is to be achieved, and why his (or her) non-fatal injuries do not attract the same consequence.88 It is also evident that the explanatory quali¿cation in Exod 21:21, ćČċ ČěĘĒ ĐĒ (“since he is the other’s property”), characterizes the subsequent legislation that immediately follows. Accordingly, the assaults hereafter refer only to the injury of those who are the property of the Israelite male, including the unborn child (Exod 21:22), the pregnant wife (21:23–25), the permanently injured slave (21:26–27). This reinforces the interpretation that injuries incurred by an adult male Israelites in a brawl (Exod 21:18–19) are not subject to the talionic penalties in 21:24–25, since these are restricted to legal dependants in the Covenant Code. 86. Jackson prefers, “non-fatal injuries to free men (21:18f., 24f.,); fatal and nonfatal injuries to dependants: the pregnant woman (21:22f.) and the slave (21:20f., 26f),” Jackson, Wisdom Laws, 172. 87. Lafont, “Ancient Near Eastern Laws,” 108. 88. Injury to the slave’s eye or tooth is addressed later in 21:26–27. 1

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Yet the more challenging dif¿culties are encountered in the account of the liability for the loss of life of the unborn child,89 as follows: Liability for Loss of Life of the Unborn Child: Exodus 21:22 When men ¿ght ĔĐĠėć ČĝėĐ ĐĒČ and one of them pushes a pregnant woman ċğċ ċĠć ČěĉėČ and a miscarriage results,90 ċĐĊēĐ ČćĝĐČ but no [other] damage ensues, ĖČĘć ċĐċĐ ćēČ the one responsible he shall be ¿ned, ĠėęĐ Ġėę according as the woman’s husband ČĐēę ġĐĠĐ ğĠćĒ ċĠćċ ēęĈ may exact from him the payment to be based on reckoning. ĔĐēēěĈ ĖġėČ

22a 22b 22c 22d 22e 22f 22g

Here the precise meaning of ĖČĘć (translated as “other damage” in 21:22d) provides the greatest dif¿culty, since “other” is not represented in the Hebrew.91 It is interpreted by the Mekhilta as follows:92 “[When] the Torah states ‘no damage ensues,’ it means to the woman [and that] ‘the one responsible shall be ¿ned’ is for [loss of] the child.”93 This view will be examined in more detail a little further, but for the moment it can be noted that it enables the “[other damage]” in the next verse to be understood as referring to the separate injury of the mother: Liability for Loss of Life of the Mother: Exodus 21:23 but if [other] damage ensues, ĖČĘć ċĐċĐ ĔćČ the penalty shall be life for life. Ġěė ġĎġ Ġěė ċġġėČ

Accordingly if “[other] damage” is incurred by the mother, the penalty is determined by the physical extent of her injuries.94 Thus if the pregnant 89. This distinction is apparent also in LH 206–214, where only fatal injury to both the mother and her child are attested, and also MAL A50–52, as will be indicated in due course. 90. A literal reading would be “and her child comes out.” 91. The NRSV reads “and yet no further harm follows”; “further” is not represented in Hebrew. 92. All references to the Mekhilta (i.e. the halakhic midrash representing the early rabbinic analysis of laws in Exodus) are taken from to the version attributed to R. Ishmael: ēćęĕĠĐ ĐĈğĊ ćġēĐĒĕ Mekhilta de-Rabbi Ishmael: A Critical Edition on the Basis of the Manuscripts and Early Editions (trans. J. Z. Lauterbach; Philadelphia: JPS, 1935), unless otherwise stated. 93. ġĊēČČĈ ĠėęĐ Ġėę ċĠćĈ ĖČĘć ċĐċĐ ćē ē'ġ, Mekhilta de-Rabbi Ishmael, 3:65. 94. This is irrespective of whether or not she lost her child. If the unborn child was lost, the assailant would be ¿ned an amount, where “the payment [would be] be based on reckoning” (Exod 21:22g), in addition to any “life for life, eye for eye” damages that the mother would separately incur. 1

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wife was killed by an assailant, “the penalty shall be life for life,” whereas if she lost an eye, tooth or limb, or sustained a burn, wound, or bruise, then talionic injuries were speci¿ed,95 with the use of ċġġėČ (translated as “the penalty is”),96 being implied from its use in the previous verse (21:23): Liability for Non-Fatal Injury of Wife: Exodus 21:24–25 eye for eye ĖĐę ġĎġ ĖĐę tooth for tooth ĖĠ ġĎġ ĖĠ hand for hand ĊĐ ġĎġ ĊĐ foot for foot ēĉğ ġĎġ ēĉğ burn for burn ċĐČĒ ġĎġ ċĐČĒ wound for wound ęĝě ġĎġ ęĝě bruise for bruise ċğČĈĎ ġĎġ ċğČĈĎ

The ¿nal element in the talionic formulation provides an almost counterintuitive response to the fatal injury of the slave, which here does not award him or her with an entitlement to avenge,97 but instead grants them the unexpected gift of their personal freedom: Liability for Non-Fatal Injury of Slave: Exodus 21:26–27 When a man strikes the eye of his slave, ĖĐęĀġć ĠĐć ċĒĐ ĐĒČ male or female Čġĕć ĖĐęĀġć Čć and destroys it, ċġĎĠČ he shall let him go free for his eye. ČėĐę ġĎġ ČėĎēĠĐ ĐĠěĎē If he knocks out the tooth of his slave, ēĐěĐ Čġĕć ĖĠ Čć ČĊĈę ĖĠ ĔćČ male or female he shall let him go free on account of his ČėĠ ġĎġ ČėĎēĠĐ ĐĠěĎē tooth.

With these preliminaries now explained, this preference for the interpretation of the Mekhilta must also be evaluated against the available alternatives suggested—where the consequence of ĖČĘć ċĐċĐ ćēČ ĖČĘć recurs in 21:23, ĖČĘć ċĐċĐ ĔćČ, “but if there is [other] damage,” and quali¿es 95. No exegete has argued that if the injured woman sustained serious physical injuries (i.e. was blinded, or severely disabled through the loss of a limb) but then subsequently died from her assault, that both “life for life” and “eye of eye” damages could be claimed, as the Mekhilta de-Rabbi Shimon bar Yochai con¿rms: ġĎġ Ġěė ćēČ ĖĐęČ Ġěė (“not a life for a life and an eye”); see ĐĎČĐ ğĈ ĖČęĕĠ ĐĈğĊ ćġēĐĒĕ, Mekhilta de-Rabbi Shimon bar Yo­ai (trans. W. D. Nelson; Philadelphia: JPS, 2006), 292. 96. ċġġėČ means literally, “and you shall give.” 97. ĔĞėĐ ĔĞė, “he must be avenged,” was stipulated in Exod 21:20 for the fatal injury of the slave. 1

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both any fatal or non-fatal injury that the pregnant wife may have incurred. Such ambiguity in identifying the precise extent of such ĖČĘć, “damage,” characterizes also Gen 42:4, which states that “Jacob did not send Joseph’s brother Benjamin with his brothers, since he feared he might meet with ĖČĘć, “disaster,” where both fatal and non-fatal injuries can be imagined. Admittedly, fatal injuries are more strongly implied in Gen 42:38, where Jacob declares: “My son must not go down with you, for his brother is dead and he alone is left. If he meets with disaster on the journey you are taking, you will send my white head down to Sheol in grief.”98 This pre-supposes the usage in subsequent rabbinic tradition, where ĖČĘć (“damage”) is understood increasingly as “tragic death.”99 Other interpretations of ĖČĘć, including that of Raymond Westbrook, (who argued that this term indicated an offence committed by unknown perpetrators),100 have met with little success.101 In terms of the earliest text witnesses, Chaim Cohen observes also that “the main Samaritan Targum MS J., indeed translates BH ĖČĘć there as Aramaic ēČĞĘ ‘(fatal) accident’ (which is also the sole rendering, without variants in all three Genesis attestations of ĖČĘć).”102 However, “alongside this expected Aramaic translation of ĖČĘć in Exod. 21:22–23, the three additional major Samaritan Targum MSS, ECB, all have the same variant rendering ċğČĝ/ċğČĘ meaning ‘form’,”103 which appear to be based upon the Septuagint translation of ĖČĘć as exeikonismenon, meaning “the formed one.”104 These variants recall also the “Frühgeburt” interpretation advocated by Jackson, who argues that ĖČĘć in 21:22 refers to a premature live birth with no injury to the mother,105 and in 21:23 indicates a miscarriage (or 98. See also Gen 44:29. 99. Both the Mekhilta de-Rabbi Ishmael, 3:35 (ċġĐĕ ćēć ĖČĘć), and Onqelos understand this exclusively as death. The statement in Ben Sira 38:18 that ćĝČĐ ĖĐĊĕ ĖČĘć (“extreme grief can result in tragic death”) is paraphrased also in b. Sanh. 100b. 100. R. Westbrook, “Lex Talionis and Exodus 21:22–25,” RB 93 (1986): 52–69 (56). This is also the view of S. Isser, “Two Traditions: The Laws of Exodus 21:22– 23 Revisited,” CBQ 52 (1990): 30–45. 101. Jackson’s objections to this interpretation can be found in Wisdom Laws, 214–20. Stanley Isser’s claim that ĖČĘć indicates “cases where responsibility cannot be located,” has also attracted objections from Nina Collins, “Notes on the Text of Exodus 21:22,” VT 43 (1993): 289–301 (301). 102. C. Cohen, “The Ancient Critical Misunderstanding of Exodus 21:22–25 and Its Implications for the Current Debate on Abortion,” in Fox, Gilat-Gilad and Williams, eds., Mishneh Todah, 437–58 (445). 103. Ibid., 445. 104. See further Collins, “Notes on the Text.” 105. How long (if at all) the premature infant survives remains crucial to this distinction, but is inevitably impossible to determine. 1

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“Fehlgeburt”) together with additional injuries to the mother. As Sophie Lafont explains, this is inevitably “open to criticism because the opposition between premature birth and miscarriage leads to the assumption of a complex mechanism of later alterations of the Urgesetz in order to change the of¿cial scope of the rule,”106 and additionally creates more problems than it resolves. To support this interpretation, Bernard Jackson reconstructs six stages in the development of the law of miscarriage in his 1973 paper, “The Problem of Exodus XXI 22–25 (Ius Talionis),” only the ¿rst four of which are relevant here: 1.

2. 3. 4.

Each participant in the brawl was liable (whether jointly or severally) for the consequences to the foetus. If it was prematurely born, he was liable to the husband’s pecuniary demand; if it was miscarried, to provide a substitute. Liability was restricted to a single individual, usually the one who struck the blow. The husband’s unlimited claim where the child survived became subject to the approval of assessors.107 By the interpolation of Exod xxi 24–5, the remedy for miscarriage was reduced to a pecuniary one. The remedy for premature birth was either abolished, or soon disappeared.108

Here Jackson admits that it was unlikely that a premature birth would survive in antiquity and the case in 1 Sam 4:19 may be exceptional,109 and furthermore, “there appears to be no parallel in the ancient Near East to a rule requiring payment for a premature birth.”110 Yet the main dif¿culty with his interpretation is that if the intention was to reduce the liability from a corporal to a pecuniary one, why interpolate a formulation (Exod 21:24) that indicated the precise opposite: “eye for eye, tooth for tooth, hand for hand, foot for foot”? The argument that these clauses were added to restrict any excessive ¿nancial claims, entirely misses the point because (as Jackson, himself, has argued) the interpolation of ĖġėČ ĔĐēēěĈ, “the payment to be based on reckoning,” indicated third-party moderation, “subject to the approval of assessors,”111 exactly for that very reason: in order to prevent the injured woman’s husband from making extortionate claims. 106. Lafont, “Ancient Near Eastern Laws,” 114. 107. This formulation is problematic in that if the foetus did survive, how could any claim against the assailant(s) be upheld, particularly if the child was healthy? 108. Jackson, “The Problem of Exodus XXI 22–25,” 302. 109. Jackson, Wisdom Laws, 217–19. 110. Ibid., 295. 111. Ibid., 302. 1

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In addition to this objection, within the framework of law in the Covenant Code, the provision of a monetary ¿ne was always explicit, where ĔēĠ (and less frequently ēĞĠĐ ĚĘĒ/ğĒĕ) indicated payment of both ¿xed and variable amounts.112 There is every reason to conclude that if monetary compensation was intended, it would be indicated by use of appropriate terminology,113 as it was (for example) in the case of injuries inÀicted by the unrestrained ox, where its owner was penalized in 22:11: ČĐēęĈē ĔēĠĐ (“he shall make restitution to its owner”). Indeed, the very phrase ČĐēęĈē ĔēĠĐ could be rendered satisfactorily, ĔēĠĐ ċĐēęĈē (“he shall make restitution to her owner [or husband]”) if a ¿nancial penalty was intended for the injury to the pregnant wife. The justi¿cation “in favour of the interpretation of the verse as referring to a Frühgeburt remains the fact that the verb yatsa, when used of childbirth, indicates a live birth unless accompanied by some explicit indication to the contrary,”114 does not outweigh this argument. In terms of the interpolation of ĔĐēēěĈ ĖġėČ (“the payment based on reckoning”) in 21:22b, the extent of the assailant’s liability could be “according to estimate” as Ephraim Avigdor Speiser has argued,115 and is

112. It is not reasonable to assume that “talionic punishment for non-fatal bodily injuries was redactionally abrogated without even being mentioned, merely by framing it within the laws of compensation [21:18–19, 22, 26–27],” as Eckart Otto suggests. See E. Otto, “Aspects of Legal Reforms and Reformulations in Ancient Cuneiform and Israelite Law,” in Levinson, ed., Theory and Method, 160–96 (185). 113. This will be clari¿ed in the discussion of ¿nancial liabilities in the Covenant Code. 114. Jackson, Wisdom Laws, 220. 115. Speiser suggests that the LXX translation of this term, “according to estimate,” is closest to the inner-biblical parallels in Deut 32:31; 1 Sam 2:25; Isa 28:7; Job 31:28; Ezek 16:10, and recalls Hittite Law, HL17; see E. A. Speiser, “The Stem PLL in Hebrew,” JBL 82 (1963): 301–6 (303–6). See also his additional work in “PƗlil and Congeners: A Sampling of Apotropaic Symbols,” in Studies in Honor of Benno Landsberger on His Seventy-Fifth Birthday, April 21 1965 (ed. H. Güterbock and T. Jacobsen; Chicago: University of Chicago Press, 1965), 389–93, where he discusses the etymology of the Akkadian, palƗlum, and “the indicated role of pƗlil and the onomastic requirements of iplul (390). Con¿rmation of this interpretation comes from Chaim Cohen’s suggestion that ĔĐēēěĈ should be translated “in accordance with the regular litigation process for the determination of appropriate punitive damages,” which is based on the comparative use of the Akkadian legal term palƗlu; see Cohen, “Ancient Critical Misunderstanding,” 440, 457. Similarly, “that the payment for the loss of foetus (v. 22) is in accordance with the monetary value appropriate to the degree of culpability,” is also maintained by Lee, “Diachrony and Exegesis,” 51. 1

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the basis of the JPS translation.116 Equally, this phrase could refer to an assessment reached by a mediator, arbitrator,117 or a formal court,118 although this would assume more developed judicial procedures. Certainly, given the discretion awarded to the pregnant woman’s husband in naming his price (21:22), this “estimate” or “arbitration” would effectively limit any unreasonable, or extortionate, claims. Thus, although ¿nancial compensation was speci¿ed for the loss of life of the unborn child, what was the purpose of the talionic formulation, in relation to the injuries sustained by its mother? And how is this informed by damages awarded for such injuries (i.e. to a pregnant woman injured in a brawl) elsewhere? In Mesopotamian law, precise correspondence between the class and status of the victim was essential, as Jacob Finkelstein has clari¿ed: One must ¿rst remember that Mesopotamian society is structured by status, each status being translatable into a corresponding “value” with reference to other statuses on the scale. This is made very clear in the rules under discussion:119 adult free man for adult free man; minor free person for minor free person; slave for slave; chattels for chattels. Everything can be, and is, objecti¿ed. It is precisely the same viewpoint which required Utnapishtim, the Babylonian Noah, to bring into the Ark a representative practitioner of every known craft, as well as of the animal species, if human civilization was to be effectively resumed after the Flood. Status is a form of “species,” albeit a relatively Àuid one. Status implies a certain standard of quality for persons, just as there exist different grades of quality in chattels, as, for example, in animals and slaves.120

And it is here that the “quality of persons” reÀected in Hammurabi’s following list of damages is indicated by the payments set for the stillborn foetus of an awƯlu’s wife (mƗrat awƯlum) at ten shekels, for a muškƝnu’s wife (mƗrat muškƝnum) at ¿ve shekels and for an awƯlu’s slave woman (amat awƯlum), two shekels,121 accordingly: 116. This interpretation was challenged by Raymond Westbrook who prefers that “the…forms of the stem pll indicate, at least in a legal context, the basic notion of sole responsibility,” in Westbrook, “Lex Talionis,” 61. Westbrook’s challenge has not been widely accepted, as noted in Jackson, Wisdom Laws, 224–25. 117. See Jackson, “The Problem of Exodus XXI 22–25,” 277. 118. Rashi interprets this as ĔĐėĐĊċ Đě ēę, “according to the judges,” in keeping with the b. Meg. 15b and Sanh. 111b. 119. The provisions under discussion those of LH 229–232. 120. Finkelstein, “The Ox That Gored,” 34. 121. This corresponds to Exod 21:22, which prescribes an unspeci¿ed ¿ne to be paid to the father of the unborn child. Noteably, “the payment was based on reckoning.” 1

92

The Body as Property LH 206

If an awƯlu should strike another awƯlu during a brawl and inÀict upon him a wound, that awƯlu shall swear, “I did not strike intentionally,” and he shall satisfy the physician (i.e. pay his fees).122

LH 207

If he should die from his beating, he shall also swear (“I did not strike intentionally”); if he (the victim) is a member of the awƯluclass, he shall weigh and deliver 30 shekels of silver.123

LH 208

If he (the victim) is a member of the commoner class,124 he shall weigh and deliver 20 shekels of silver.

LH 209

If an awƯlu strikes a woman of the awƯlu-class and thereby causes her to miscarry her foetus, he shall weigh and deliver ten shekels of silver for her foetus.

LH 210

If that woman should die, they shall kill his daughter.

LH 211

If he should cause a woman of the commoner class to miscarry her foetus,125 he shall weigh and deliver ¿ve shekels of silver.

LH 212

If that woman should die, he shall weigh and deliver 30 shekels of silver.

LH 213

If he strikes an awƯlu’s slave woman and thereby causes her to miscarry her foetus,126 he shall weigh and deliver two shekels of silver.

LH 214

If that slave woman should die, he shall weigh and deliver two shekels of silver.

For Hammurabi the issue at stake was not the degree or nature of the injuries sustained but rather the calculation of appropriate compensation that is rightfully due to the victim’s owner for loss of wife or unborn child.127 This sum was based directly on the wife’s status (i.e. to whom

122. Corresponding thus to Exod 21:18–19. 123. Au contraire Exod 21:12–13: “He who fatally strikes a man shall be put to death. If he did not do it by design, but it came about by an act of God, I will assign you a place to which he can Àee.” 124. Where mar muškƝnum is translated as “a member of the commoner class” in Roth, LCMA, 122. 125. Roth, ibid., translates mƗrat muškƝnum “a woman of the commoner class.” 126. Roth, ibid., 123, translates amat awƯlum as “an awƯlu’s slave woman.” 127. Samuel Greengus observes, “The determination of punishment according to social status appears in the Bible as well, albeit in a more limited fashion,” S. Greengus, “Biblical and Mesopotamian Law: An Amorite Connection?,” in Life and Culture in the Ancient Near East (ed. R. E. Averbeck, M. W. Chavelas and D. B. Weisberg; Potomac: CDL, 2003), 63–81. 1

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she belonged and whose property was reduced by the estimated loss incurred by her injury): in the event of her death, if her husband was an awƯlu, technically, he would be entitled to exact vengeance on his wife’s assailant, by killing the assailant’s daughter.128 If the deceased woman was married to a muškƝnu, her husband could expect to receive 30 shekels of silver, whereas if she was enslaved, her owner (and not her husband) could expect to receive two shekels of silver. The purpose of these laws, therefore, was not to protect a married woman from violent attack or compensate her for her injuries, but rather to pay the going market rate to the property-owning male, for her loss.129 This situation also reÀects the underlying logic of Exod 21:22–25: the higher valuation of the life of a woman was based directly upon her child-bearing potential, as a non-enslaved pregnant woman, or ċğċ ċĠć. Nor was any “cure” or ongoing care for the female victim mentioned, as was provided in Exod 21:19 for the injured male. Rather, the talionic principle protected the assets of the victim’s husband and remunerated him at the going rate for any loss incurred by his wife’s injuries. These examples (particularly LH 210) illuminate the intent of the talionic formulation in the Covenant Code, which according to Cornelis Houtman indicated punishment of the offender’s wife: Also in my view, 21:23–25 is to be taken in the literal sense. However, it seems to me that 21:22, 23 and 21:24, 25 are not just loosely connected, as thought by Crüsemann, but 21:23–25 applies speci¿cally to the woman. For retaliation it is not the life, the eye etc. of the offender that is demanded, but the life, etc. of his wife.130 The same idealism that governs 21:26, 27—mistreatment of a slave, male or female, is the cause for giving them their freedom—also governs 21:23–25: extreme caution is required where it concerns the life and corporal well-being of the wife of a fellow countryman. One who violates that rule is going to feel the consequences in the loss or maiming of his own wife. So the equilibrium

128. No indication is provided (in LH 210) of what was to happen if the assailant did not have a daughter, or even a female slave, to substitute. 129. This is precisely the same rationale provided in the previous law relating to the fatal injury of the Israelite slave in Exod 21:20–21: “When a man strikes his slave, male or female, with a rod, and he dies there and then, he must be avenged. But if he survives a day or two, he is not to be avenged “since he is the other’s property.” Samuel Greengus also observes, “The determination of punishment according to social status appears in the Bible as well, albeit in a more limited fashion,” Greengus, “Biblical and Mesopotamian Law,” 63–81. 130. “Eye for eye, tooth for tooth, hand for hand, foot for foot” penalties implied equivalent punitive mutilations upon the assailant’s wife. 1

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The Body as Property between the parties is restored. The regulation is especially in the nature of a preventative (cf. Deut 19:20),131 addressing the attack on a man’s most precious possession, the woman, the one who could give him offspring.132

This is not to presume that Exod 21:23–25 required vicarious punishment of the assailant’s wife, but simply that the equivalence in the biblical social infrastructure dictated that only one’s wife’s life (or limb) was legitimate restitution for loss of, or injury to, another man’s wife’s life (or identical limb). There is no suggestion that the assailant was forced to provide his own wife as a substitute for his victim’s death,133 or even that he might replace this loss with a slave or daughter of his own. All that is claimed in this present discussion is simply that the talionic principle in the Covenant Code quali¿ed not only the extent of the physical injury, but also limited its application only to the assailant’s wife, in the event of her sustaining physical injuries during a brawl. In this light, it also remains reasonably clear that the terms in Exod 21:23–25 did not refer to additional injuries inÀicted upon a male Israelite, nor did it qualify the law in 21:18–19 in any way. 3.3.2. Ġěė ġĎġ Ġěė as Live Human Substitution So how exactly did the Ġěė ġĎġ Ġěė (“life for life”) principle apply to the chattel or property loss of a pregnant woman, killed by a male Israelite in a brawl? And in what way could restitution be made for a property loss, if not by ¿nancial means? Earlier Babylonian laws from Eshnunna134 present the terminology used to denote a capital case, as an awat napištim.135 This is no mere “loose parallel,”136 since the use of the cognate Ġěė (from the Akkadian, 131. Deut 19:20: “Nor must you show pity: life for life, tooth for tooth, hand for hand, foot for foot.” 132. Houtman, Exodus, 3:166, observes that the pregnant woman victim in 21:22–24 would command the additional value of her anticipated child. 133. This is particularly signi¿cant since there is no alternative provision stipulated for an unmarried assailant. 134. From the reign of Dadusha, in Eshnunna (located along the Dijala River, modern-day Tell Asmar) recorded ca. 1770 BCE. 135. LE 48 states: “For a case involving a penalty of silver in amounts ranging from 20 shekels to 60 shekels, the judges shall determine the case against him, however a capital case is only for the king.” See further distinctions in Veenhof, “The Relation Between Royal Decrees,” 74. 136. Jackson has stated, with reference to LE 24, 26, 58 and LH 3, “The fact that loose parallels, dƯn napištim and napištim, are found in the ancient Near East in reference to capital cases is insigni¿cant in the light of other biblical evidence,” Jackson, “The Problem of Exodus XXI 22–25,” 280. 1

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napištu as a “living being,” “self,” or “the essence of life”),137 at the head of the talionic formula Ġěė ġĎġ Ġěė (“a life for a life”) was undeniably prominent.138 Moreover the correlation in the use of Ġěė and its relationship to the Middle Assyrian bƝl nap£Ɨte, or “avenger of a life,”139 is of considerable importance in the resolution of murder, which was in the hands of the ĔĊċ ēćĉ (“the blood redeemer”) in biblical law:140 a consequence that prompted concern for the safety of the “manslayer who has killed a person unintentionally,”141 from the vengeance of a legitimate blood redeemer.142 In order to understand how such legal formulations developed, Marc van de Mieroop outlines the relationship between Hammurabi’s laws and the precedents from Eshnunna,143 where he explains:

137. See napšƗtu(m) in CDA, 23 and “Ġěė = Akk. napištu,” in ALCBH, 244–46. 138. Ġěė ġĎġ Ġěė in Exod 21:23; Lev 24:17, 18, and ĠěėĈ Ġěė in Deut 19:21. 139. G. R. Driver and J. C. Miles translate bƝl napšƗte as “representative of the life,” in The Assyrian Laws (Ancient Codes and Laws of the Near East 2; Oxford: Clarendon, 1935), 426–27, whereas Martha Roth prefers “next-of-kin,” LCMA, 176. Horst Seebas conveniently summarizes as follows: “A bƝl napišƗtƯm is therefore a person responsible for someone’s life (e.g. granting it) or (Middle Assyrian) having the right to avenge a homicide,” H. Seebas, “Ġěė nepeš,” TDOT 9:497–519 (500). 140. The role of the ĔĊċ ēćĉ, “blood redeemer” (Num 35:18; Deut 4:41–43; 19:1–13; Josh 20:1–9; 2 Sam 3:23), is clari¿ed in 2 Sam 3:27: “When Abner returned to Hebron, Joab took him aside within the gate to talk to him privately; there he struck him in the belly. Thus [Abner] died for shedding the blood of Asahel, Joab’s brother.” See also “Appendix One: The Identity of the ĔĊċ ēćĉ, ‘The Blood Avenger’,” in P. Barmash, Homicide in the Biblical World (Cambridge: Cambridge University Press, 2005), 50–52, and also A. Mishaly, “The BƝl DƗmƝ’s Role in the Neo-Assyrian Legal Process,” ZABR 6 (2000): 34–54. 141. ċĉĉĠĈ ĠěėĀċĒĕĀēĒ in Num 35:11 and also 35:15. 142. This was the explicit objective of Num 35:9–34, where the establishment of the cities of refuge for those guilty of manslaughter, rather than murder, was differentiated. See 35:16–21: “Anyone, however, who strikes another with an iron object so that death results is a murderer. If he struck him with a stone tool he is a murderer; the murderer shall be put to death. Similarly, if the object with which he struck him was a wooden tool that could cause death, and death resulted, he is a murderer; the murderer must be put to death. The blood avenger himself shall put the murderer to death; it is he who shall put him to death on encounter.” 143. “[I]t is certain that the compilers of the Laws of Hammurabi had direct access to either the Laws of Eshnunna or to a common scholastic traditions reÀected in both compilations,” B. L. Eichler, “Examples of Restatement in the Laws of Hammurabi,” in Fox, Gilat-Gilad and Williams, eds., Mishneh Todah, 365–400 (366). 1

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The Body as Property If there was already a law about injury to an eye, for example, it was very easy to write one about a bone, using simple parallelism.144 It seems also that actual verdicts by the king lay at the basis of the new clause.145 The best example of such practice derives from a letter written by Hammurabi’s old rival Rim-Sin of Larsa, where he states: “You throw the slave into the kiln, because he threw a boy into the oven.”146 Such a decision could easily have led to a new law such as, “If a slave throws a boy in a kiln, they shall throw him into a kiln.” As Hammurabi judged many cases, there were an abundance of opportunities to formulate new laws based on them. The ¿rst sentence of the epilogue, which states that the preceding cases were just verdicts by the king, advises the reader that these were at the basis of the laws.147

Certainly the language used in Exod 21:22–24 evokes the direct equation of “a life for a life” and con¿rms the syntactical need for a preposition (such as ġĎġ, ta­at, in the talionic formula) to represent aššum, meaning “because of” in Hammurabi’s correspondence to RimSin: “You throw the slave into the kiln, because he threw a boy into the oven.”148 David Daube’s account of the ġĎġ preposition, meaning “in place of” in biblical syntax,149 to indicate substitution as a form of 144. As was evident (for example) in the sequence from LH 196–201 presented in the previous section. 145. This was the likewise case with royal “rescripts”: “These texts might be called rescripts, in the Roman sense of the word: they are answers given by the king to practical questions asked by jurists or individuals,” Lafont, “Ancient Near Eastern Laws,” 97. Discussion of the rescript relating to the Sippar cloister (and the ¿nancial support of the nadîtu therein) is particularly fascinating: Samsu-Iluna’s rescript directly contradicts his father’s promulgation in LH 180, where he speci¿es that the families of these priestesses must provide ¿nancially for their maintenance, con¿rmed in advance on a written tablet. See C. Janssen, “Samsu-Iluna and the Hungary Nadîtums,” Northern Akkad Project Reports 5 (1991): 3–40. 146. Stol translates: “Thus says Rim Sim, your Lord: Because [aššum] he cast a boy into the oven, you, throw a slave into the kiln,” Marten Stol, Letters from Yale (Altbabylonische Briefe in Umschrift und Übersetzung 9; Leiden: Brill, 1981), 126– 27, lines 6–9. 147. M. van de Mieroop, King Hammurabi of Babylon: A Biography (Cambridge, Mass.: Blackwell, 2005), 109. For further discussion of this letter, see Roth, LCMA, 16. 148. See M. T. Roth, “The Because Clause: Punishment Rationalization in Mesopotamian Laws,” in Veenhof Anniversary Volume: Studies Presented to Klaas R. Veenhof on the Occasion of His Sixty-Fifth Birthday (ed. W. H. van Soldt et al.; Leiden: Nederlands Instituut Voor Het Nabue Oosten, 2001), 407–12, and also ašu in CAD, vol. 2. 149. Daube, Studies in Biblical Law, 116. Earlier (103–4) he had previously explained: “The Hebrew word translated by ‘for’ (in ‘life for life,’ etc.) is ġĎġ, with 1

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compensation, is axiomatic to understanding the use of the formulation Ġěė ġĎġ Ġěė in the context of the pre-history of homicide, where the killer had to replace his victim’s life with another.150 Daube concluded that “if there was a similar stage in Hebrew law, and if the clause ‘a life for a life’ came into existence from that era, the wording would be easily intelligible.”151 The “easily intelligible” nature of how one life simply replaced another is evident from a cursory glance at the biblical sources where Ġěė appears together with the preposition ġĎġ, and con¿rms that this meaning is consistent throughout the varied literary sources that constitute the Masoretic text. Although a few examples (including Gen 4:25; Lev 16:32; Num 32:14) do not contain the preposition ġĎġ, specifying “in place of,” it is evident that live, human substitution is intended equally in these sources: ēĈċ ġĎġ ğĎć ęğč

Gen 4:25

“another offspring in place of Abel”152 Gen 36:33

Ďğč ĖĈ ĈĈČĐ ČĐġĎġ đēĕĐČ

“(he) succeeded him as king”153 Exod 21:23

Ġěė ġĎġ Ġěė ċġġėČ

“the penalty shall be life for life”154

the basic meaning of ‘under.’ Its value is somewhat similar to that of the Greek ŧÈŦ or the Latin sub. Like these, it frequently refers to one thing’s taking the place of another and, in legal language, to one thing’s being given in the place of another by way of compensation. In fact, a precise rendering of the formula quoted would have to take account of this; and we ought to translate, ‘Thou shalt give life in place of life, eye in the place of eye’ and so on. It is true that ġĎġ occasionally approaches the meaning ‘because of.’ But for one thing, even when it does, the idea of substitution usually plays some minor part at least.” 150. “Here we have the lex talionis in its original vigor,” M. Jastrow Jr., “Older and Later Elements in the Code of Hammurabi,” JAOS 36 (1916): 1–33. 151. Daube, Studies in Biblical Law, 116. 152. Ibid., 116. 153. ČĐġĎġ đēĕĐČ recurs in 36:34, 35, 36, 37, 38 and 39. Solomon’s declaration in 1 Kgs 8:20 reads: ĐĈć ġĎġ ĔČĞćČ, “I have succeeded my father David.” Cf. the statements of Rehoboam in 1 Kgs 11:43 and Jeroboam in 1 Kgs 14:20. Note also Ps 45:17: “your sons shall succeed your ancestors.” 154. Gen 44:32–34b. Here the commentators are unanimous: “the one who had become responsible for the sale of Joseph into slavery (37:26f) now unwittingly offers to become the slave of his own victim.” See Sarna, ġĐĠćğĈ Genesis, 307 notes nn. 33–44. See also C. Carmichael, “Biblical Laws of Talion,” HAR 9 (Biblical and Other Studies in Memory of S. D. Goitein) (1985): 107–26 (118). 1

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ČĐĈć ġĎġ ĖċĒē ČĊĐ ġć ćēĕĐ

Lev 16:32

“to serve as Priest in place of his father”155

ğČĒĈ ēĒ ġĎġ ĔĐČēċ

Num 8:18

“the Levites instead of every ¿rst born”

ĔĒĐġĈć ġĎġ ĔġĕĞ

Num 32:14

“[a breed of sinful men] have replaced your fathers”

ĔġĎġ ČĈĠĐČ

Deut 2:12 “and settling in their place”156

ġČĕē ĔĒĐġĎġ ČėĠěė

Josh 2:14

“our persons are pledged to for yours, even to death!”157

ĔġĎġ ĔĐĞċ ĔċĐėĈ ġćČ

Josh 5:7

“but he raised their sons in his stead”

ČĠěė ġĎġ đĠěė

1 Kgs 20:39 “your life for his”158 Isa 43:4c “I give men in exchange for you”159 Isa 43:4d “and peoples in your stead”160

đġĎġ ĔĊć ĖġćČ

đĠěė ġĎġ ĔĐĕČćēČ

155. Compare also 1 Kgs 2:35: “In his place the king appointed Benaiah, son of Jehoiada over the army, and in place of Abithar, the king appointed the priest, Zadok.” 156. ĔġĎġ ČĈĠĐČ recurs later also in Deut 2:21, 22 and 23. 157. The quali¿cation ġČĕē, translated here as “even to the death,” is indicative that ĔĒĐġĎġ ČėĠěė, “our persons are pledged to for yours,” denoting the fact that the individuals pledged were, in the ¿rst instance, understood to be given alive: “Our persons are pledged for yours, even to death! If you do not disclose this mission of ours, we will show you true loyalty when the Lord gives us the land.” 158. This is not the case with the example in 2 Kgs 20:24: “your life shall be forfeited for his life and your people for his people” (Čĕę ġĎġ đĕęČ ČĠěė ġĎġ đĠěė) 159. Where ĔĊć in the singular (as indicative of humanity) is translated by the NJPS as the plural ‘men’ in Isa 43:4c. 160. This is echoed by the parallelism in the previous verse (Isa 43:3c–d): “I give Egypt as ransom for you Ethiopia and Saba in exchange for you” (ĔĐğĝĕ đğěĒ Đġġė đĐġĎġ ćĈĘČ ĠČĒ). 1

3. Talion in Biblical Law and Narrative Job 16:4 “if you were in my place” Est 2:17

99

ĐĠěė ġĎġ ĔĒĠěė ĠĐ Čē ĐġĠČ ġĎġ ċĒĐēĕĐČ

“and made her queen instead of Vashti.”

These sources support the interpretation that Ġěė ġĎġ Ġěė, “a life for a life,” designated a living human replacement.161 One additional example from Isa 37:37, ČĐġĎġ ĖČĊĎğĘć đēĕĐČ, where Esarhaddon succeeded his father Sennacherib as King, is equally notable. This recalls the underlying signi¿cance of human substitution in the Substitute King (šar pu¨u) ritual, particularly during the Neo-Assyrian period, mentioned previously in the chapter on circumcision,162 and described here by Jean Bottéro: “This was precisely one of the essential postulates of exorcism: it was thought, in fact, that evil, either actual, promised or predicted, could be transferred from one individual to another, and could in some way shift its weight—as with a burden.”163 Such substitutions were not meant to deceive or trick the gods, but rather to enable them to carry out their decision, under the same conditions yet on a physically different person: “Similarly in law it was acceptable that a member of the immediate family of the debtor settles the debt in his place, and work as his

161. The exceptions to these include 2 Sam 19:1, where David cries, ĔČēĠĈć ĐėĈ đĐġĎġ ĐġČĕ ĖġĐ Đĕ (“My son Absalom if only I had died instead of you”), and Gen 22:13, ČėĈ ġĎġ ċēęē ČċēęĐČ (“a burnt offering in place of his son”), where the dead

animal replaces Isaac on the altar. Ambiguity is also evident in 2 Kgs 10:24, where ČĠěė ġĎġ ČĠěė (“he shall forfeit his life”) occurs. In Joash’s statement that “Whoever permits the escape of a single one of the men I commit to your charge, shall forfeit life for life,” it is not immediately apparent if the negligent soldier was to be imprisoned or killed. See my earlier discussion in S. Jacobs, Ġěė ġĎġ Ġěė A Life for a Life and Napšate Umalla,” in The Ancient Near East in the 12th–10th Centuries BCE: Culture and History. Proceedings of the International Conference held at Haifa University, 2–5 May 2010 (ed. G. Galil et al; AOAT 392; Münster: UgaritVerlag, 2012), 241–53. 162. This was attested in the Neo-Assyrian period (and earlier) and was the ritual through which a human substitute was chosen by diviners to replace the king and to take upon himself the evil omens, otherwise destined by the gods. The substitute was dressed as the king, enthroned, provided with the royal insignias, to include the crown, mantle, weapon and sceptre, and then given a queen who would share in his fate, before they were both killed. 163. Bottéro, Mesopotamia: Writing, Reasoning, 142. Zainab Bahrani (Rituals of War, 198) also emphasizes the naming of the substitute in the accompanying incantation, together with the requirement for inscribing the name of the king onto either the garment, or something that could be ingested by the substitute. 1

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substitute in the service of the creditor.164 That was the idea that the ancient Mesopotamians had about substitution and its role.”165 This economic reality was fully understood also in the patriarchal narratives, where the role of substitution was evident likewise in the biblical accounts of the pledge,166 and its accompanying surety.167 Such legal realities also permeate the narratives of Gen 42–45, where the expression ĖČĘć, “tragic death” or “serious injury,” occurred.168 Here the plot centres on the famine in Egypt, where Jacob’s older sons are confronted by “the vizier of land”169 as follows: “If you are honest men, let one of your brothers be held in your place of detention, while the rest of you go and take home rations for your starving households; but you must bring me your youngest brother, that your words may be veri¿ed and that you may not die” (Gen 42:19–20). Joseph’s request to secure Benjamin as a pledge is non-negotiable—where the brother’s acknowledge, for the ¿rst time, their own complicity in the sale of Joseph: “They said to one another: ‘Alas, we are being punished on account of our brother, because we looked on at his anguish, yet paid no heed as he pleaded with us. That is why this distress has come upon us’ ” (Gen 42:21). Here Reuben’s 164. “The pledged person is most often a member of the debtor’s family, such as his son or wife. Slaves may also be pledged of course, but this is not so common, no doubt because those needing to borrow are less likely to be the owner of slaves,” J. N. Postgate, Fifty Neo-Assyrian Legal Documents (Warminster: Aris & Philips, 1976), 48. See further Karen Radner, “Mesopotamia: The Neo-Assyrian Period,” in Westbrook, ed., A History of Ancient Near Eastern Law, 2:833–910 (904–5); for a comparison of the Neo-Babylonian formulations, see J. Oelsner, B. Wells and C. Wunsch, “Mesopotamia: The Neo-Babylonian Period,” in Westbrook, ed., A History of Ancient Near Eastern Law, 2:911–75 (935). 165. Bottéro, Mesopotamia: Writing, Reasoning, 143. 166. With reference to the pledge (Ĉğę), E. A. Speiser observes that the “technical sense of the verb rb, particularly common in Akkadian legal usage; cf. the cognate noun ƝrƗbǀn, ‘pledge’ in xxxviii:18,” in Genesis: Introduction, Translation and Notes (AB 1; New York: Doubleday, 1964), 327–28. This example (in Gen 38:18) relates to Judah’s seal, cord and staff, which he gave to Tamar to guarantee his forthcoming payment of a kid for her sexual services. Nahum Sarna adds, “the Hebrew stem -r-v is most frequently used in reference to acceptance of legal responsibility for a debt contracted by another. The guarantor may undertake to insure that the borrower will not disappear, or he undertakes to repay the loan, should the borrower default,” Sarna, ġĐĠćğĈ Genesis, 298. This usage is apparent also in Prov 6:1; Job 17:3, and Neh 5:3 (among others). 167. The surety (in Neo-Assyrian cases, the lúurik’u) was the one who guaranteed or stood behind the sale or pledge. Postage, Fifty Neo-Assyrian Legal Documents, 27. 168. See Gen 42:4 and 44:29, which were mentioned in light of Exod 21:22–23. 169. ĜğćċĀēę ġĐēĠċ, in Gen 42:6, who they do not recognize as their younger brother Joseph. 1

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reaction is not that his brothers were culpable for failing to respond to Joseph’s anguish, but rather for his actual death: “Did I not tell you, ‘Do no wrong to the boy’? But you paid no heed. Now comes the reckoning for his blood.”170 Amidst these twists and intrigues, the legal realities continue to surface, as Judah later persuades his father to allow Benjamin to accompany the brothers back to Egypt, saying: “Send the boy in my care, and let us be on our way, that we may live and not die—you and we and our children. I myself will be surety for him; you may hold me responsible:171 if I do not bring him back to you and set him before you, I shall stand guilty before you forever” (Gen 43:8–9). Once the stolen goblet planted in Benjamin’s sack has been found, Judah’s opportunity to keep his promise materializes, as he explains to the vizier of Egypt (Joseph) as follows: “Now, if I come to your servant my father and the boy is not with us—since his own life is so bound up with his172—when he sees that the boy is not with us, he will die, and your servants will send the white head of your servant our father down to Sheol in grief” (Gen 44:30). His repeated offer to be held captive in place of Benjamin, is highly telling: Now your servant has pledged himself for the boy to my father, saying, “If I do not bring him back to you, I shall stand guilty before my father forever. Therefore, please let your servant remain as a slave to my lord instead of the boy, and let the boy go back with his brothers. For how can I go back to my father unless the boy is with me?” (Gen 44:32–34b)173

Here Judah’s request to “remain as a slave to my lord, instead of the boy” (where the phrase ĐėĊćē ĊĈę ğęėċ ġĎġ is used),174 provides a classic example of how the Ġěė ġĎġ Ġěė (“a life for a life”) principle, as indicative of a live, personal substitution functioned in the legal contexts of pledge and surety-ship. 170. At Gen 42:22 ĠğĊė ċėċ ČĕĊĀĔĉČ, “the reckoning for his blood,” refers to Joseph’s blood, which Reuben assumes is required because he was still under the impression that his brother had died. 171. Nahum Sarna explains the phrase ČėĠĞĈġ ĐĊĐĕ: “le-vakkesh mi-yad means to hold responsible, to require an accounting for and is particularly used with respect to bloodshed,” Sarna, ġĐĠćğĈ Genesis, 298. This usage is evident also in Gen 31:39; 1 Sam 20:6; 2 Sam 4:11; Ezek 3:18, 20; 33:8. 172. ČĠěėĈ ċğČĠĞ ČĠěėČ is translated as “since his own life is so bound up with his” in Gen 44:30. 173. Here the commentators are unanimous: “the one who had become responsible for the sale of Joseph into slavery (37:26f) now unwittingly offers to become the slave of his own victim,” Sarna, ġĐĠćğĈ Genesis, 307 nn. 33–44. See also Carmichael, “Biblical Laws of Talion,” 118. 174. ġĎġ is translated as “instead of.” 1

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Arguably, the exception that would prove this rule is Reuben’s earlier offer concerning Benjamin (also intended to alleviate Jacob’s agitation at the prospect of losing Rachel’s only remaining son), where Reuben declares: “You may kill my two sons if I do not bring him back to you” (Gen 42:37). While this is explicit as a vicarious killing, rather than living substitution, Reuven Yaron observes: “A strange proposal indeed, inviting Jacob, or at least empowering him to exact vengeance from his own grandsons; one need not be surprised that it was rejected.175 Yet, the very bizarreness of the suggestion lends credibility to the assumption that the legal background against which it was formulated was a concrete one.”176 The fact that it is not possible to date the tradition in Gen 42:37, with any degree of precision, also does not detract from its credibile expression of this concrete, legal reality. Having demonstrated that the Ġěė ġĎġ Ġěė (“a life for a life”) principle was indicative of living substitution, and is explicit as such in legal, prophetic, narrative and historiographic biblical texts, in what other ancient sources is this phenomenon witnessed? 3.3.3. Ġěė ġĎġ Ġěė and Napšate Umalla In this context the Covenant Code’s formulation of Ġěė ġĎġ Ġěė, “a life for a life,” is precisely as Bernard Jackson suggests: “The sanction provided in the apodosis is not death, but rather substitution of persons— quite literally ‘a soul for a soul’ (but a live soul, not a dead one). This explains why mot yumot is not used,177 and is supported by ancient Near Eastern parallels, particularly MAL A50, which uses an almost identical expression napšate (cf. nefesh) umalla.”178 The “almost identical expression,” kimu ša libbiša napšate umalla, which means “he pays (on 175. As also Rashi comments, where he explains that obviously Jacob did not accept Reuven’s offer, but responded: This ¿rst-born son is a fool, he offers to kill his sons and are they (only) his sons and not mine (also)”?

ċč ćČċ ċďČĠ ğČĒĈ ČėĈ ġĐĕċē ğĕČć ćČċ ?ĐėĈ ćēČ ,Ĕċ ĔĐėĈ ĐĒČ

This point was made earlier by R. Yehuda haNasi in Neusner, ed., Genesis Rabbah, 278. 176. R. Yaron, “Biblical Law: Prolegomena,” in Jewish Law Annual: Supplement Two: Jewish Law in Legal History and the Modern World (ed. B. S. Jackson; Leiden: Brill, 1980), 27–44 (35). 177. As ver¿ed in Section 3.3.4, “ġĕČĐ ġČĕ: The Death Penalty in the Covenant Code.” 178. Jackson, Wisdom Laws, 211, and also earlier in “The Problem of Exodus XXI 22–25,” 293. 1

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the principle of) a life (for a life),”179 also appears in relation to injuries incurred by a pregnant woman in a brawl. More importantly, the term does not denote an exclusively ¿nancial penalty180 in Middle Assyrian law: MAL A50: Column vii Line 63 Line 64 Line 65 Line 66 Line 67 Line 68 Line 69 Line 70 Line 71 Line 72 Line 73 Line 74 Line 75 Line 76 Line 77 Line 78 Line 79 Line 80 Line 81

[šum-ma LÚ DAM]I LÚ2 im-­a- [If a man] has struck a married aÑ-ma [woman] [ša-a lib-bi-ša] ú-ša-ad-di-ši and caused her to lose [the fruit of her womb DAM ša-a LÚ] ša DAM-at LÚ The wife of the man] who [caused] the (other) married woman ša-[a ŠÀbi-ša ú-ša-ad-di]-ú-ni [to lose] the fruit of [her womb] ki-[i- ša-a e-pu]-šu-ši-ni shall be treated as [he has] he treated her e-pu-[šu-šu ki-mu-ú ša]-a lib-bi- for the fruit] of her womb, he pays ša nap-ša-a-te u-ma-al-la. (on the principle of) a life (for a life) u um-ma SAL ši-it mi-ta-at but if that woman dies, LÚ i-du-uk-u the man shall be put to death ki-mu-ú ša-a ŠÀbi-ša [for the fruit] of her womb he pays nap-ša-a-te u-ma-al-la (on the principle of) a life (for a life) u šum-ma ša-a mu-ut SAL ši-a-ti or if that woman’s husband DUMU-šu la-áš-šu DAM-su has no son im-¨u-Ñu-ú-ma ša ŠÀbi-ša (and) his wife has been struck ta-aÑ-li and has cast the fruit of her womb ki-mu-ú ša-a ŠÀbi-ša for the fruit of her womb ma-¨i-Ña-a-na i-du-uk-u the striker shall be put to death. šum-ma ša ŠÀbi-ša Ñu-¨a-ar-tu If the fruit of her womb was a girl nap-ša-a-te u-ma-al-la he none the less181 pays (on the principle of) a life (for a life).

179. Driver and Miles, The Assyrian Laws, 418–21. This principle is translated by Meir Malul, as ċēĕĐ ġČĠěė ċĐĊēĐ ġĎġ, literally, “in place of her child he will ful¿l life (or lives, in the plural),” Law Collections and Other Legal Collections from the Ancient Near East (Israel: Pardes, 2010 [Hebrew]), 205. He explains the analogy of Ġěė ġĎġ Ġěė, “a life for a life,” as ĔĊć ġĎġ ĔĊć, “a man for a man,” using the talionic ġĎġ preposition (p. 205 n. 152). 180. This may be implied by Martha Roth’s translation: “he shall make full payment of a life for her foetus.” Roth, LCMA, 173. 181. “None the less,” is not present in the original (Driver and Miles, The Assyrian Laws, §50, line 81, 419), and should therefore have been provided by the translators in brackets. 1

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Line 82 Line 83 Line 84

šum-ma LÚ DAMat LÚ la-a mu-ra-bi-ta im-¨a-aÑ-ma ša ŠÀbi-ša ú-ša-aÑ-li-ši

Line 85 Line 86

­i-i-Óu an-ni-ú 2 GUN AN.NA i-id-in

If a man has struck a married woman, who does not rear her children and has caused her to cast the fruit of her womb this punishment (shall be inÀicted) he shall pay two talents of lead.

MAL A52: Column vii Line 87 Line 88

šum-ma LÚ KAR.LÍL im-¨a-aÑma ša ŠÀbi-ša ú-ša-aÑ-li-ši

Line 89 Line 90 Line 91

mi-i¨-Ñi ki-i mi-i¨-Ñi i-ša-ak-ku-ú-nu-uš nap-ša-a-te ú-ma-al-la

If a man has struck a harlot and caused her to cast the fruit of her womb blow for blow182 shall be laid upon him; (thus) he pays (on the principle of) a life (for a life).183

Driver and Miles, among others, accept this application of napšate umalla as a statement of general principle in MAL A50,184 unlike Sophie Lafont, who considers that this is no more than a metaphorical abstraction that bears no relation to the concrete meaning of the language and represents purely the ¿nancial value of the loss of life.185 The dif¿culty

182. Meir Malul translates the requirement, “blow for blow shall be laid upon him,” in accordance with the talionic formulation as ČėġĐ ċĒĕ ġĎġ ċĒĕ, in Malul, Law Collections, 206. 183. The ¿nal law in this sequence (namely §53) states: “If a woman has cast the fruit of her womb by her own act (and) charge (and) proof have been brought against her, she shall be impaled (and) shall not be buried. If she has died in casting the fruit of her womb, she shall be impaled (and) shall not be buried. If that woman was concealed (?) when she cast the fruit of her womb (and) it was not told to the king…,” Driver and Miles, The Assyrian Laws, Column vii, lines 92–105. 184. Driver and Miles suggest that “the section must be interpreted on the supposition that napšate umalla is not a distinct penalty but stands in apposition to the previously described punishment and explains its underlying principle,” ibid., 112– 13. See here also G. Cardascia, Les Lois assyrienne (Paris: Cerf, 1969), 240–42; S. M. Paul, Studies in the Book of the Covenant in the Light of Cuneiform and Biblical Law (VTSup 18; Leiden: Brill, 1970), 70–77; and Jackson, “The Problem of Exodus XXI 22–25,” 294–95, and Wisdom Laws, 230–32. 185. “Le terme napšate est certainment, en l’espèce, un plurale tantum désignant abstraitment la ‘vie’ et non les ‘être vivants’ au sens concret. Il faut alors admettre, avec la majorité des commentateurs, que la phrase exprime d’une manière 1

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with such theories is that in both the cuneiform legal collections and individual case records, resolutions were never expressed as metaphorical abstractions, but were always speci¿c and grounded in practical, judicial realities.186 This is also the case in this sequence of laws, where it is evident that when a ¿nancial payment was intended, its precise amount was clari¿ed (as in MAL A51, where the loss of the life of the child of the la murabita “the married women who does not rear her children,” was quanti¿ed at two talents of lead),187 and where retaliation is speci¿ed for the assailant who has struck a harlot: “blow by blow shall be laid upon him” (MAL A52, Column vii, lines 89–90). In addition to advancing a concrete interpretation of this general principle, there is also the use of “the verb mullnj [which] means literally ‘to make full’ or ‘to ful¿l’, or ‘to give (a thing) in full payment’,”188 but this does not assume an exclusively ¿nancial penalty, as Horst Seebas explains: Interesting on account of the legal notions embodied are the texts dealing with the principle of ‘a life for a life’, e.g., ‘If they do not discover the one who murdered him, they will deliver 3 persons as a ¿ne (umallu ‘make full’); in the case of an unborn child: ‘He gives restitution as for a person (napšƗte umalla); a pretrial settlement: ‘Do not go to court against me. I will replace your slave with a person (napšƗti ša qallika njšallamka)189

This clari¿es precisely why in MAL A50, the ¿nancial amount (coined in MAL A51 as talents of lead) was absent, since the conventional term napšƗte umalla indicated that formal damages were conceived as equivalent restitution by means of human substitution, in the ¿rst instance.190 This would not preclude an assailant from subsequently negotiating an alternative settlement, where ¿nancial compensation was acceptable to

métaphorique l’obligation de ‘remplacer la valeur d’une vie’,” S. Lafont, Femmes, Droit et Justice dans l’Antiquité orientale (Orbus Biblicus et Orientalis 165; Fribourg: Vandenhoeck & Ruprecht, 1999), 380. 186. I am grateful to Frans van Koppen for emphasizing this when I ¿rst discussed the interpretation of this Assyrian provision with him. 187. This amount may have represented the rate paid for adopting a new-born infant. 188. Driver and Miles, The Assyrian Laws, 113. 189. Seebass, “Ġěė nepeš,” 501, and further Driver and Miles, The Assyrian Laws, 492. 190. For a discussion of the use of this principle in the tidennnjtu contracts from Nuzi, see S. Jacobs, “Ġěė ġĎġ Ġěė A Life for A Life, 249–50. These contracts were ¿rst published by B. L. Eichler, Indenture at Nuzi: The Personal Tidennnjtu Contract and Its Mesopotamian Analogues (New Haven: Yale University Press, 1987). 1

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both parties.191 And nor is this meaning negated by the use of napšate umalla, to prescribe the death of the assailant, as this account of the separation of injuries indicates: Death of the Mother: Capital Punishment §50, Lines 70–73 u um-ma SAL ši-it mi-ta-at LÚ i-du-uk-u ki-mu-ú ša-a ŠÀbi-ša nap-ša-a-te u-ma- al-la

but if that woman dies, the man shall be put to death; he pays (on the principle of) a life (for a life).

Loss of (Potential First-born) Son: §50, Lines 74–79 u šum-ma ša-a mu-ut SAL ši-a-ti DUMU-šu la-áš-šu DAM-su im-¨u-Ñu-ú-ma ša ŠÀbi-ša ta-aÑ-li ki-mu-ú ša-a ŠÀbi-ša ma-¨i-Ña-a-na i-du-uk-u

Or if that woman’s husband has no son (and) his wife has been struck and has cast the fruit of her womb [for the fruit] of her womb the striker shall be put to death.192

Loss of Daughter (Napšate Umalla): §50, Lines 80–81 šum-ma ša ŠÀbi-ša Ñu-¨a-ar-tu nap-ša-a-te u-ma-al-la

If the fruit of her womb was a girl he nonetheless pays (on the principle of) a life (for a life).

Accordingly, this general principle of human substitution (encapsulated by the formula, napšate umalla) denoted live, human replacement,193 but also designated the assailant’s own death: as restitution for the loss of life of another man’s pregnant wife. The fact that the Middle Assyrian provisions make no mention of non-fatal physical injuries to the wife, other than to the loss of her unborn child, does not invalidate this interpretation. A closer look at the broader legal context of physical assaults within Hammurabi’s laws highlights one other signi¿cant factor in this discussion: namely, that there was clear differentiation between capital punishment, ¿nancial restitution, live substitution and vicarious punishment, even when vicarious punishments took a number of different forms,194 as these laws indicate: 191. As Sophie Lafont suggests, “these penalties were convertible into money” at a later stage; see Lafont, “Ancient Near Eastern Laws,” 115. 192. The loss of life of an unborn male to a woman whose husband already had a son (or sons) is not speci¿ed. 193. According to §50, lines 80–81, it may have been possible for the assailant to replace the loss of an unborn girl with either a daughter of his own, or a daughter of one of his slave. 194. Vicarious punishment is de¿ned as “punishment that is imposed not on the culprit but upon another person who stands in a particular relationship to the culprit, for example, employer, father or son,” Westbrook and Wells, Everyday Law, 136. 1

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LH 116

If the distrainee should die from the effects of a beating or other physical abuse while in the house of her or his distrainer, the owner of the distrainee shall charge and convict his merchant, and if (the distrainee is) the man’s son, they shall kill his (the distrainer’s) son; if [he is] the man’s slave, he shall weigh and deliver 20 shekels of silver; and forfeit whatever he originally gave as the loan.

LH 209

If an awƯlu strikes a woman of the awƯlu-class and thereby causes her to miscarry her foetus, he shall weigh and deliver ten shekels of silver for her foetus.

LH 210

If that woman should die, they shall kill his daughter.195

LH 229

If a builder constructs a house for a man but does not make his work sound,196 and the house that he constructs collapses and causes the death of the householder, that builder shall be killed.

LH 230

If it should cause the death of the son of the householder,197 they shall kill a son of that builder.

LH 231

If it should cause the death of a slave of the householder,198 he shall give to the householder a slave of comparable value for the slave.199

A number of correlations with biblical traditions are immediately apparent: in LH 231, the obvious resonance of Ġěė ġĎġ Ġěė (“a life for a life”) with wardam kƯma wardim (“a slave of comparable value for the slave”) is apparent.200 Furthermore, the provision “he shall give to the

195. šumma sinništum šî imtnjt mƗrassu idukku. 196. The “man” or client is an awƯlum. 197. “The son of the householder” is the mƗr bƝl bƯtim. 198. Here translating warad bƝl bƯtim as “a slave of the householder.” 199. Here translating šumma warad bƝl bƯtim uštamƯt wardam kƯma wardim ana bƝl bƯtim inaddin, with wardam kƯma wardim rendered “a slave of comparable value for the slave.” See also Moshe Greenberg’s comparison of these with the Hittite provisions (namely HL1–4), in “Some Postulates of Biblical Criminal Law,” in Yehezkel Kaufmann Jubilee Volume: Studies in Bible and Jewish Religion Dedicated to Yehezkel Kaufmann on the Occasion of His Seventieth Birthday (ed. M. Haran; Jerusalem: Hebrew University/Magnes, 1960), 5–28 (20–21). 200. Evident also in Neo-Assyrian case law (K345. ADD166, lines 7–8), where we ¿nd GÉME ina ku-um GÉME Šul-mu-I ta-dan, “Šulmu-na’id will give a slave girl for a slave girl.” This is reiterated later in lines 11–12: i-din GÉME ina ku-um GÉME, “[he will] give slave-girl for a slave girl.” See R. Jas, Neo-Assyrian Judicial Procedures (The Neo-Assyrian Text Corpus Project; SAAS 5; Helsinki: The University of Helsinki, 1996), 15–17. 1

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householder” (ana bƝl bƯtim inaddin) con¿rms that the verb inaddin/ nadanu(m), “to give,” is the etymological equivalent of Ėġė in the Covenant Code (see Exod 21:22: ĔĐēēěĈ ĖġėČ, “the payment to be based on reckoning”; 21:23: Ġěė ġĎġ Ġěė ċġġėČ, “the penalty shall be life for life,” where ċġġėČ means literally “and you shall give”). Furthermore, Sophie Lafont understands that these vicarious punishments are indeed “true applications of lex talionis.” She goes on to explain that The Hammurabian and Assyrian laws prescribe talion through a third person for the manslaughter of a free man’s daughter (CH210: the daughter of the culprit is killed) or for the miscarriage of a free man’s wife (MAL50: the perpetrator will be deprived of the child that his wife bears). Since the ful¿lment of these punishments might sometimes raise problems, as when the guilty party has no daughter or no wife, it has to be assumed that these penalties were convertible into money. All of these examples are true examples of lex talionis, according to which the aggressor suffers a penalty strictly identical to the one he has caused.”201

Given the obvious differences in these descriptions of vicarious punishment, it is justi¿ed to conclude that the use of Ġěė ġĎġ Ġěė, “a life for a life,” at the head of the talionic formulation indicated that the principle of individual life substitution was fully understood by the writers of the Covenant Code, and that it was speci¿cally differentiated from both capital punishment and ¿nancial restitution within this corpus. This interpretation will be substantiated by a separate analysis of the Covenant Code provision of capital punishment, ¿xed (and variable rate) ¿nes, and the talionic formulation in the next section. 3.3.4. ġĕČĐ ġČĕ: The Death Penalty in the Covenant Code The following brief analysis of the death penalty in the Covenant Code will con¿rm that the expression ġĕČĐ ġČĕ, “he shall be put to death,” was terminologically distinct from the Ġěė ġĎġ Ġěė (“life for life”) principle (indicating human substitution), where the incidence of capital punishment, designated by ġĕČĐ ġČĕ, “he shall be put to death,” quali¿ed any violation of divine instruction or design. In the Covenant Code, this was speci¿ed for premeditated murder, kidnapping, damage to the divinely created natural order, and for the rejection of parental authority as follows:

201. Lafont, “Ancient Near Eastern Laws,” 115. Lafont also identi¿es MAL A50, lines 70–71 as “obviously a form of talion.”

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ġĕČĐ ġČĕ The Designation of Capital Punishment 21:12 He who fatally strikes a man ġĕČ ĠĐć ċĒĕ shall be put to death.202 ġĕČĐ ġČĕ 21:14 When a man schemes against another, ČċęğĀēę ĠĐć ĊčĐĀĐĒČ and kills him treacherously ċĕğęĈ ĉğċē you shall take him from My very altar ĐĎĈčĕ Ĕęĕ to be put to death.203 ġČĕē ČėĎĞġ 21:15 He who strikes his father or his mother ČĕćČ ČĐĈć ċĒĕČ shall be put to death ġĕČĐ ġČĕ 21:16 He who kidnaps a man— ĠĐć ĈĉėČ whether he has sold him or is still holding him ČĊĐĈ ćĝĕėČ ČğĒĕČ ġĕČĐ ġČĕ shall be put to death.204 21:17 He who insults his father or his mother ČĕćČ ČĐĈć ēĞĞĕČ ġĕČĐ ġČĕ shall be put to death.205 21:29 If, however, that ox has been in the habit of goring, and its owner, though warned, has failed to guard it, and it kills a man or a woman— the ox shall be stoned and its owner, too, shall be put to death (ġĕČĐ ČĐēęĈ ĔĉČ ēĞĘĐ ğČĠċ).206 22:18 Whoever lies with a beast ċĕċĈĀĔę ĈĒĠĀēĒ ġĕČĐ ġČĕ shall be put to death.207

Accordingly the principle of Ġěė ġĎġ Ġěė, “life for life,” in context of talionic formulation in the Covenant Code was differentiated from the death penalty provided by ġĕČĐ ġČĕ, “he shall be put to death,” as is explicit in each of the above sources. The injury of a pregnant woman during a ¿ght is not a crime that ¿ts into this “capital” class, even if the outcome may result in her death and also that of her unborn child. 202. Exod 21:13 indicates that this was premeditated: “If he did not do it by design, but it came about by an act of God, I will assign you a place to which he can Àee.” This is also as clari¿ed in Num 35:16–21, which uses the same terminology, speci¿cally in 35:18, Ďĝğċ ġĕČĐ ġČĕ (“the murderer must be put to death”). 203. In ġČĕē ČėĎĞġ ĐĎĈčĕ Ĕęĕ, “You shall take him from my very altar and put him to death,” the in¿nitive ġČĕē is used with the third masculine plural imperfect of ĎĞē, rather than the in¿nitive absolute. 204. Compare Deut 24:7, “If a man is found to have kidnapped a fellow Israelite, enslaving him or selling him, that kidnapper shall die; thus you will sweep out evil in your midst,” with LH 14, šumma awƯlum mƗr awƯlum Ñi¨ram ištariq iddâk, “if an awƯlum should kidnap the young child of another awƯlum, he shall be killed.” 205. Cf. Lev 20:9: “If anyone insults his father or his mother, he shall be put to death (ġĕČĐ ġČĕ) his blood-guilt is upon him” 206. ġĕČĐ ČĐēęĈĀĔĉČ (“and its owner, too, shall be put to death”). Here the use of the third masculine singular imperfect form (instead of the in¿nitive absolute ġČĕ ġĕČĐ) may reÀect the situation that although no premeditated crime was intended, the owner was warned of the danger and did nothing to control his ox. 207. Lev 20:15: “If a man has carnal relations with a beast, he shall be put to death (ġĕČĐ ġČĕ) and you shall kill the beast.” See also Num 35:16–21. 1

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Neither of these fatalities were on a par with intentional murder or wilful damage of the divinely created order and this explains why alternative terminology designated restitution for the injured woman’s husband, as indicated by the talionic formula commencing Ġěė ġĎġ Ġěė, “life for life,” in Exod 21:22. That the expression ġĕČĐ ġČĕ, “he shall be put to death,” was applied only to cases where there was a deliberate violation of any divine instruction, design or creation, explains also why the death penalty for pre-meditated murder was not an example of a talionic punishment in the Covenant Code.208 3.3.5. Financial Liability in the Covenant Code Having con¿rmed how the principle of Ġěė ġĎġ Ġěė, “life for life,” representing live, human substitution was terminologically differentiated from the death penalty, provided by ġĕČĐ ġČĕ, “he shall be put to death,” this new discussion will identify the linguistic and conceptual distinctions in each of the following legal speci¿cations: payment of a ¿ne, a negotiated settlement, restitution for injury to a slave (by means of their liberation) and the talionic “life for life” principle. The purpose of this is to con¿rm that neither the principle of Ġěė ġĎġ Ġěė, “life for life,” nor the requirement of capital punishment, were intended to denote a ¿nancial penalty in the Covenant Code. Starting with the requirement for ¿nancial penalties in the Covenant Code, the payment of a ¿ne is explicit only in these three cases: as restitution for theft, for the accidental loss of livestock, and for non-fatal injuries to the pregnant wife—all of which provide compensation to the adult Israelite male for his property loss, where the legal distinctions are expressed as follows: 22:2

22:3

Financial Compensation for Theft in the Covenant Code In the case of a thief who was caught: ĔēĠĐ ĔēĠ, “he must make restitution,”209 where the verse continues “if he lacks the means, he shall be sold for his theft.” “If he lacks the means, he shall be sold for his theft. But if what he stole—whether ox or ass or sheep—is found alive in his possession, he shall pay double,” where ĔēĠĐ ĔĐėĠ, “he shall pay double,” is provided.210

208. As advocated by Jackson, “The Problem of Exodus XXI 22–25,” 281 n. 1, who states: “thus the death penalty for murder is not an example of talion.” 209. ĔēĠĐ ĔēĠ, where the in¿nitive absolute of the verb ĔēĠ (meaning variously “to complete,” “to pay,” and “to make peace”) witnesses the imperfect piel, third masculine singular form. 210. In ĔēĠĐ ĔĐėĠ the imperfect Piel, third masculine singular form is combined with the dual adjectival form of ĐėĠ (i.e. “two”). 1

3. Talion in Biblical Law and Narrative 22:8

22:10 22:11

111

“In all charges of misappropriation pertaining to an ox, an ass, a sheep, a garment, or any other loss, whereof one party alleges, ‘This is it’—the case of both parties shall come before God. He whom God declares guilty, shall pay double to the other,” where ĔēĠĐ ĔĐėĠ Čċęğē, “he shall pay double to the other.” ĔēĠĐ ćē, “and no restitution shall be made,” occurs also in 22:12.211 ČĐēęĈē ĔēĠĐ, “he shall make restitution to its owner.”

Financial Compensation for Accidental Loss of Livestock “When a man borrows [an animal] from another and it dies or is 22:13–14 injured, its owner not being with it, he must make restitution (i.e. ĔēĠĐ ĔēĠ). If its owner was with it no restitution need be made (i.e. ĔēĠĐ ćē) but if it was hired, he is entitled to the hire (i.e. ČğĒĠĈ ćĈ ćČċ ğĐĒĠĀĔć).

In the above prescriptions, ¿nancial compensation was identi¿ed primarily by the use of ĔēĠ (in the third person imperfect, ĔēĠĐ,212 and additionally with use of the in¿nitive absolute, ĔēĠĐ ĔēĠ213) for both theft and for the accidental loss of livestock,214 which are terminologically distinct from the requirement for compensation necessitated by non-fatal, physical injuries in two cases. This is ¿rst speci¿ed in Exod 21:18–19, “when two men ¿ght,” and where the verb Ėġė (“to give”) occurs in the third person Qal imperfect form, so that “the assailant shall go unpunished, except that he must pay for his idleness and cure,” occurs as indicated below.215 The second prescription in Exod 22:15–16, refers not to any injury sustained in a public brawl, but rather as the result of a sexual assault, where the payment of a bride-price to the victim’s father necessitated use of the verb ğĒĕ:

211. ĔēĠĐ ćē (“and no restitution shall be made”) is translated as “he need not replace” in Exod 21:11–12: “But if [the animal] was stolen from him, he shall make restitution to its owner. If it was torn by beasts, he shall bring it as evidence; he need not replace what has been torn by beasts.” 212. See Exod 22:11 and 22:13, with variations evident in Exod 22:3 and 22:8 (where double payment is speci¿ed as ĔēĠĐ ĔĐėĠ) and in Exod 22:10 (where no ¿ne is indicated by ĔēĠĐ ćē (“and no restitution shall be made”), and in 22:14, which is translated as “he need not replace.” 213. ĔēĠĐ ĔēĠ in Exod 22:2 and 22:13 means “he must make restitution.” 214. See also K. J. Illman, “ĔēĠ £ƗlƝm,” TDOT 15:97–105. 215. This verse was initially discussed in Section 3.3.1, “Ġěė ġĎġ Ġěė, ‘A Life for a Life’ in the Covenant Code.” 1

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21:19

22:15

22:16

Financial Compensation for Non-Fatal Personal Injuries the assailant shall go unpunished ċĒĕċ ĎĞėČ ĖġĐ ČġĈĠ except that he must pay for his idleness and his cure ċěğ ċěğČ If a man seduces a virgin ċēČġĈ ĠĐć ĎġěĐ ĐĒČ for whom the bride-price has not ċĠğćĀćē ğĠć been paid and lies with her, ċĕę ĈĒĠČ he must make her his wife by ċĠćē Čē ċėğċĕĐ ğċĕ payment of a bride-price. If her father refuses Čē ċġġē ċĐĈć ĖęĕĐ ĖćĕĀĔć to give her to him, he must still weigh out silver,216 ēĞĠĐ ĚĘĒ ċēČġĈċ ğċĕĒ in accordance with the bride-price for virgins.217

Three terminological observations from this discussion are justi¿ed: 1. Where restitution was intended by means of a ¿ne, the use of the verb ĔēĠ, meaning “to pay” (in the third person Piel imperfect ĔēĠĐ, or by means of the in¿nitive absolute, ĔēĠĐ ĔēĠ), was speci¿ed in cases of theft and also for the accidental loss of livestock. Negation of such payment was made by the use of ćē ĔēĠĐ (“and no restitution shall be made”), as was the case in Exod 22:10 and 22:12, or doubled, as indicated by the use of ĔēĠĐ ĔĐėĠ, “he shall pay double,” in Exod 22:3 and 22:8. 2. The acquisition of a wife, and her appropriate return to her rightful owner, was quali¿ed by the verb Ėġė (meaning “to give”) in situations where no ¿xed price, or negotiated rate, was speci¿ed. This is evident from 22:16, where the raped girl’s father “refuses to give her to him,”218 and was also in the case in Exod 21:4, where a male slave is given a wife by his master.219 This is highly signi¿cant in light of the earlier observation that “the reciprocal juridical expressions ‘give a wife’ (natan liššah) and 216. Recalling the Babylonian equivalent, kaspam isaqal/isaqqal, and variants thereof, listed in “šaqƗlu,” Section 3b-g in CAD, 17, Part II, 3–8. See also LH 198: “If he [an awƯlu] should blind the eye of a commoner [muškenu] he shall weigh and deliver 60 shekels of silver.” 217. Deut 22:29 speci¿es the price meant to be paid to the girl’s father as 50 shekels. 218. The in¿nitive construct, Čē ċġġē, “to give her to him,” occurs here. 219. In this case ċĠć ČēĀĖġĐ ČĐėĊćĀĔć, “if his master has given him a wife,” the verb Ėġė appears in the third masculine Qal singular imperfect form.

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‘take a wife’ (laqa­ liššah), corresponding to the Babylonian martam ana aššutim nadanu and aššatam a¨azu respectively,”220 occurred. This is notable also in view of Driver and Miles’s discussion of MAL A30, which reads: “Again, the bride’s father, or her father-in-law are said ‘to give’ (Ass. nadƗnu or tadƗnu) her to the bridegroom and he is said ‘to take’ (Ass. a¨azu) her.”221 3. The verb Ėġė, “to give,” recurs in the Covenant Code in three separate cases: ¿rst, when the amount of compensation to the victim varied, as in Exod 21:19, where it was related directly to the nature of the injury inÀicted and potentially also to the length of time off work that the victim incurred; second, in Exod 21:22, where the award was subject to either negotiation or judicial moderation;222 third, in Exod 21:23, where Ġěė ġĎġ Ġěė ċġġėČ, “the penalty shall be life for life,” denoted the principle of live, human substitution in the Covenant Code, based (however indirectly) on the Middle Assyrian precursor in MAL A50 kimu-ú ša-a ŠÀbi-ša napšate umalla as “he pays (on the principle of) a life (for a life).”223 In all of these cases, a certain degree of Àexibility could have accommodated also the ¿nancial resources and circumstances of the assailant. Such Àexibility is readily documented in various forms of “composition,”224 known also from Neo-Assyrian texts documenting cases of

220. Levine, “Biblical Women’s Marital Rights,” 90. 221. Driver and Miles, The Assyrian Laws, 169. See also nadƗnu (1a) in CAD, 11:42–43. 222. See Exod 21:22, where ĔĐēēěĈ ĖġėČ, “the payment to be based on reckoning,” occurrs. 223. Driver and Miles, The Assyrian Laws, 418–21. napšate umalla recurs in A50, lines 69, 73, 81, as well as in A52 line 91, 224. The term “composition” is used here in the technical sense of a “sum of money paid, as satisfaction for a wrong or personal injury, to the person harmed, or to his family if he died, by the aggressor”; see H. C. Black, Black’s Law Dictionary: De¿nitions of the Terms and Phrases of American and English Jurisprudence, Ancient and Modern (4th ed.; St Paul: West Publishing, 1968), 358, cited by Roth, LCMA, 351 n. 2. This is not identical to the ransom agreement, which did not necessarily stipulate ¿nancial compensation exclusively: “The ransom agreement is a contract like any other, and therefore gives rise to a debt which must be paid or satis¿ed in some other way, whether by transfer of the debtor’s property, his family, or his own person.” R. Westbrook and R. D. Woodward, “The Edict of Tudhaliya IV,” JAOS 110 (1990): 641–659 (655). 1

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homicide,225 where the money paid to the deceased’s family was explicit as blood money.226 In one notable case (ADD618, where the victim’s next-of-kin are unknown) the details of the composition are formulated as a debt-note, whose purpose it is to identify responsibility for homicide.227 The signi¿cance of this record was to testify formally that the local villagers would collectively accept responsibility for the blood money, in the event the victim’s next of kin were to appear and claim their entitlement to it. It is interesting also that the payment “to make good the blood”228 of the dead man (šunu UŠ.MEŠ ušalalum) witnesses the verb šalalum, which is cognate with ĔēĠ (meaning “to pay”) in the Covenant Code. Four Neo-Assyrian additional records indicate the penalty of a ¿ne as “composition for homicide ‘blood’ (damu),”229 in highly varied circumstances, where the precise nature and sum of the ransom agreement was explicit, either in monetary terms (as in ADD 164 and PPA 95), as land (as in ADD 806), or with the substitution of the killer’s daughter (as in ADD 321): ADD 164230 Crime Death of herdsmen, killed during theft of livestock

Penalty For theft: 300 sheep and unspeci¿ed ¿ne. For blood: two talents of silver per victim

Consequence Unable to pay the penalty, the manslayer, his household and ¿elds were seized

225. As in MAL B2, Column ii, lines 15–21: “If one of the brothers who have not divided (the inheritance) has destroyed a living being he shall be given up to the representative of the life (and) if he choses, he may kill him, or if he choses he may accept composition [and] take his share (of his inheritance). 226. In Neo-Assyrian sources the distinction between accidental homicide and pre-meditated murder is never expressly articulated, as it was in the Covenant Code. Exod 21:12–14 states: “He who fatally strikes a man shall be put to death. If he did not do it by design, but came about by an act of God, I will assign you a place to which he can Àee. When a man schemes against another and kills him treacherously, you shall take him from my very altar to be put to death.” 227. M. T. Roth “Homicide in the Neo-Assyrian Period,” in Language, Literature, and History: Philological and Historical Studies Presented to Erica Reiner (ed. F. Rochberg-Halton; New Haven: American Oriental Society, 1987), 351–65 (352–55 and also 360); see also Barmash, Homicide, 57–61. 228. The transcription and translation of line 18 is taken from Roth “ Homicide,” 353–54. Nicolas Postgate translates the same text as “they [the signatories] will pay the blood money in full”; see Postgate, Fifty Neo-Assyrian Legal Documents, 171. 229. Roth, “Homicide,” 356. 230. See ibid. and Barmash, Homicide, 60–61. 1

3. Talion in Biblical Law and Narrative ADD 806 Crime Unstated ADD 321232 Crime Manslaughter

PPA 95233 Crime Unstated

115

Legal Penalty “The servants of the bƝl pƗhiti of GN2, took ten homers of ¿eld in GN, in lieu of the ‘blood’ ”231 Legal Penalty The daughter of the manslayer is handed over, in composition for the ‘blood’; if this is not provided the manslayer was to be killed at the grave of his victim Legal Penalty A composition payment for homicide 80 minas of copper, by Aššur-dnjru, for his son ŠƝlubu

These cases indicate that penalties were clearly tailored to accommodate the ¿nancial means of the guilty party and where the wealth of the assailant and his family determined the nature of the penalty imposed. The signi¿cance of the vicarious punishment in ADD321, where the killer’s daughter was handed over, in composition for the “blood” of the victim indicates that the legal formulations in Middle Assyrian law (as those noted earlier, for example, in MAL A50–53) were by no means, theoretical abstractions but were practically implemented in, at least, this unique case. Driver and Miles comment on two further cases of vicarious punishment for homicide: In the ¿rst the murderer agrees to surrender a slave-girl “instead of the blood” (Ass. kum dame), whereby “he washes out the blood” (Ass. kum imasi); and, if these persons are not surrendered, he is put to death over the victim’s grave. In the second the murderer has to deliver up his wife, brother, or son, to the “owner of the dead persons” (Ass. bƝl mƯtnjte), and whoever of them is surrendered “makes good, i.e. compensates for, the dead persons” (Ass. mƯtnjte ušallam), and presumably the murderer is put to death if he fails to deliver a substitute.234 231. Roth, “Homicide,” 357 also mentioned in Barmash, Homicide, 68. 232. Roth, “Homicide,” 357–58, and Barmash, Homicide, 63–64. 233. Roth, “Homicide,” 358–60, and Barmash, Homicide, 54–59. 234. Driver and Miles, The Assyrian Laws, 36. They additionally explain that in cases of composition for murder, where another living person was exchanged for the dead, the underlying rationale was the desire to replace the de¿ciency in military capacity of the tribe: “Even when the blood money has been paid, the ¿ghting strength still remains one short. Hence there originates the custom, still traceable in Sinai, whereby a murderer’s wife or sister or daughter is compelled to marry the murdered man’s next of kin, and her son on coming of age takes the dead man’s place.” 1

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Given these explicit, linguistic distinctions in the comparable nature and extent of ¿nancial liabilities in both the Neo-Assyrian sources and in the Covenant Code, it is also possible to classify the relevant biblical formulations into the following four categories: 1. Restitution where neither the form nor the amount of compensation was indicated. 2. Restitution subject to adjudication, or where the payment was variable, since it depended on the nature and extent of the victim’s injury. 3. Financial restitution provided through the acquisition or sale of an Israelite as a debt slave. 4. Restitution by means of the talionic ġĎġ (taÜat) penalty. Each of these four categories are explicit in the Covenant Code, and are designated by these qualifying verbs as follows: (1) Restitution for an Unspeci¿ed Amount, with ĔēĠ, ğċĕ, ēĞĠĐ ĚĘĒ Exod 22:2 “he must make restitution”235 ĔēĠĐ ĔēĠ Exod 22:10 “no restitution shall be made”236 ĔēĠĐ ćē Exod 22:3 “he shall pay double” ĔēĠĐ ĔĐėĠ Exod 22:11 “he shall make restitution to its owner” ČĐēęĈē ĔēĠĐ Exod 22:15 “he must make payment of the bride-price” ċėğċĕĐ ğċĕ Exod 22:16 “he must weigh out the silver” ēĞĠĐ ĚĘĒ Exod 21:19 Exod 21:22

(2) Variable Rate Payments/Subject to Adjudication “he must pay for his idleness and his cure” “the payment to be based on reckoning”

ċěğ ċěğČ ĖġĐ ČġĈĠ ĔĐēēěĈ ĖġėČ

(3) Acquisition (Ėġė) and Sale as Debt Slave (ğĒĕ) Exod 21:4 “If his master gave him a wife” ċĠćē ČēĀĖġĐ ČĐėĊćĀĔć Exod 22:15  “If her father refuses ċĐĈć ĖęĕĐ ĖćĕĀĔć to give her to him” Čē ċġġē Exod 22:3  “he shall be sold for his theft” ČġĈėĉĈ ğĒĕėČ

As noted in relation to LH 231,237 ana bƝl bƯtim inaddin con¿rms that the verb inaddin/nadanu(m), “to give,” is the etymological equivalent of 235. Cf. Exod 22:11 and 13. 236. Cf. Exod 22:8. 237. The full provision appears as follows: šumma warad bƝl bƯtim uštamƯt wardam kƯma wardim ana bƝl bƯtim inaddini, “If [an inadequately constructed building] should cause the death of a slave of the householder, he [i.e. the negligent builder] shall give to the householder [wardam kƯma wardim] a slave of comparable value for the slave.” 1

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Ėġė in the Covenant Code, where in Exod 21:22 ĔĐēēěĈ ĖġėČ (“the payment to be based on reckoning”) was indicated and where ġĎġ Ġěė ċġġėČ Ġěė (“the penalty shall be life for life”) occurred in 21:23. The signi¿cance of the verb Ėġė in these cases238 is that the subject of the injury is an Israelite dependant, that is, the most vulnerable member of society. This is exactly the case also when combined with the ġĎġ (taÜat) formulations, occurring as follows: (4) Talionic Restitution with the ġĎġ (taÜat) Preposition: Exod 21:23 “the penalty shall be life for life” Ġěė ġĎġ Ġěė ċġġėČ Exod 21:24 “eye for eye” ĖĐę ġĎġ ĖĐę Exod 21:24 “tooth for tooth” ĖĠ ġĎġ ĖĠ Exod 21:24 “hand for hand” ĊĐ ġĎġ ĊĐ Exod 21:24 “foot for foot” ēĉğ ġĎġ ēĉğ Exod 21:25 “burn for burn” ċĐČĒ ġĎġ ċĐČĒ Exod 21:25 “wound for wound” ęĝě ġĎġ ęĝě Exod 21:25 “bruise for bruise” ċğČĈĎ ġĎġ ċğČĈĎ Exod 21:26 “he shall let him go free, ČėĎēĠĐ ĐĠěĎē on account of his eye”239 ČėĐę ġĎġ Exod 21:27 “he shall let him go free, ČėĎēĠĐ ĐĠěĎē ČėĠ ġĎġ on account of his tooth”240

These distinctions do not demonstrate that either female substitutions or vicarious talionic mutilations historically occurred (in the event that a pregnant Israelite woman was injured in a public brawl), only that the consequence of intentional murder was distinct from homicide and that clear differentiation between ¿nancial and talionic penalties is explicit in the Covenant Code. This also con¿rms why it is not acceptable to retroject Tannaitic or subsequent rabbinic interpretations upon the biblical context of the talionic formulation in Exod 21:24–25. As Ġěė Ġěė ġĎġ (“a life for a life”) was indicative of living substitution in the Covenant Code, the next discussion will examine the reception of this principle in the Priestly revision of the talionic formulation. 238. This sole exception to this was Exod 21:19, which I have suggested was for injury to the Israelite male, who was not subject to the talionic penalties presented in Exod 21:22–24, as were his legal dependants. 239. Exod 21:26 states: “When a man strikes the eye of his slave, male or female, and destroys it, he shall let him go free, on account of his eye.” The phrase ĐĠěĎē ČėĐę ġĎġ ČėĎēĠĐ, “he shall let him go free on account of his eye,” which evokes Jer 34:14: “In the seventh year each of you must let go any fellow Hebrew who may be sold to you; when he has served you six years, you must set him free” (i.e. translating “you must set him free” for ĐĠěĎ ČġĎēĠČ). 240. Exod 21:27 states: “When a man strikes the eye of his slave, male or female, and destroys it, he shall let him go free, on account of his tooth.” 1

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3.3.6. Finite Talion: Leviticus 24:18 and 24:20 The relationship between the principle of Ġěė ġĎġ Ġěė (“a life for a life”), representing individual substitution in the Covenant Code, and the biblical conception of pledge and suretyship is also suggestive of the prehistory of the talionic ġĎġ (ta­at) formulation as an oral tradition,241 which is inferred speci¿cally by its substantial restatement in Priestly and Deuteronomic sources. However, the revisions witnessed in Lev 24:17–21 preserve signi¿cant differences in the contents and context of its Covenant Code precursor, which are identi¿ed as follows: First: Talionic punishment was required here for all non-fatal injuries incurred by any Israelite, rather than just a wife, child or slave,242 and was limited only by the exact equivalence in the nature and extent of the original assault in both qualitative and quantitative terms—that is, only one eye for one eye etc., as in 24:19 and 24:20b. Second: The formulation is revised to accommodate ¿nancial restitution, where the expression Ġěė ġĎġ Ġěė ċėĕēĠĐ (where “one who kills a beast shall make restitution, life for life),243 occurs in Lev 24:18. This indicates that formal restitution by means of either live substitution or monetary payment was equally acceptable for the fatal injury of cattle or livestock in Priestly law.244 This did not preclude the possibility that a man liable for this ¿ne could not replace the dead animal with a live animal from his own Àock (or herd), but simply that Priestly law speci¿ed ¿nancial restitution, in the ¿rst instance. Third: Capital punishment was limited to intentional homicide, in keeping with Num 35:1–34, where the distinction between manslaughter (“but if he pushed him without malice aforethought or hurled any object at him unintentionally”),245 and intentional murder,246 is differentiated. Equally interesting is the chiastic format of the Priestly talionic provisions, which appear as follows:247 241. As suggested by Jackson, Wisdom Laws, 202. 242. Lev 24:17–21 makes no mention of either the miscarriage of the pregnant woman in Exod 21:22–24, nor of the case of a malicious witness in Deut 19:21 243. As understood also in m. B. Met. 6:3. 244. Exod 21:33–35 provides for injuries incurred by an ox or ass. 245. Num 35:22. Cf. Exod 21:12–13: “He who fatally strikes a man shall be put to death. If he did not do it by design, but it came about by an act of God, I will assign a place to where he can Àee.” 246. The killer strikes his victim with a weapon, a tool or with his own brute force, according to Num 35:21. 247. As summarized in Jackson, “Talion and Purity,” 119–20, and also in Wisdom Laws, 202–5. For a critique of this approach, see D. P. Wright, “The Fallacies of Chiasmus: A Critique of Structures Proposed for the Covenant Collection (Exodus 20:23–23:19),” ZABR 10 (2004): 143–68. 1

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24:17

A2 A3

24:18 24:19

C B3 B2 B1

24:20a 24:20b 24:21a 24:21b

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If anyone kills [literally, “strikes”] any human being he shall be put to death248 One who kills a beast shall make restitution, life for life.249 If anyone maims his fellow, as he has done so shall it be done to him.250 Fracture for fracture, eye for eye, tooth for tooth. The injury he inÀicted on another shall be inÀicted on him.251 One who kills a beast shall make restitution for it,252 but one who kills [literally, “strikes”] a human being shall be put to death.253

In terms of non-fatal assaults, the principle of Ġěė ġĎġ Ġěė (“a life for a life”) is also detached from the earlier provisions of “an eye for an eye” and “a tooth for a tooth,” and is preceded by the distinct exemplar: ğĈĠ ğĈĠ ġĎġ (“fracture for fracture”).254 This addition is unique to the Priestly revision of the talionic formulation in biblical tradition, where the closest legal parallel is preserved in LH 197—“If he shall break the bone of another awƯlu they shall break his bone”—where breaking the bone of a mu£kƝnu requires the payment of 60 shekels,255 and that of the slave, or warad awƯlu, necessitated payment of one half of the slave’s value in silver.256 Here it is valuable to consider (once again) the relationship between the Babylonian traditions recorded at Eshnunna, and their subsequent development in Hammurabi’s laws. Barry Eichler explains that both codes reÀect general, scholastic legal tradition, witnessed earlier in the 248. The requirement of capital punishment (i.e. “he shall be put to death,” is ġČĕ ġĕČĐ) is distinct from the requirement of bodily substitution and ¿nancial com-

pensation. 249. Ġěė ġĎġ Ġěė ċėĕēĠĐ means literally “he shall pay a life for a life.” 250. The phrase Čē ċĠęĐ ĖĒ ċĠę ğĠćĒ (“as he has done so shall it be done to him”) will be revisited in Section 3.4, “ReÀective Talion and the Biblical ğĠćĒ (kaasher) Formulation.” 251 The parallel alternative to 24:19 is provided in 24:20, ĖĒ ĔĊćĈ ĔČĕ ĖġĐ ğĠćĒ ČĈ ĖġĐ. 252. 24:21a is abbreviated simply to ċėĕēĠĐ ċĕċĈ ċĒĕČ, without the “life for life” quali¿cation that was present in 24:18a. 253. 21:21b abbreviates the text of 24:17 to three words: ġĕČĐ ĔĊć ċĒĕČ. 254. ğĈĠ can also denote physical destruction, as in ćğĞė ğĈĠ ēę ğĈĠ (“disaster overtakes disaster,” Jer 4:20), and similarly “a great disaster” (Jer 4:6). 255. LH 198: 1 mana kaspam išaqqal. This is in contrast to the earlier Sumerian traditions, which stipulated ¿nancial penalties only, as in the laws of Ur Nammu. LU19 reads: “If a man shatters the bone of another man with a club, he shall weigh and deliver 60 shekels of silver.” 256. LH 199: ištebir mišil šƯmišu išaqqal. 1

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Sumerian Laws of Ur Nammu: “As a restatement of this tradition, it is clear the Law of Hammurabi must be viewed as a revision that introduced the new element of lex talionis or jus talionis for bodily injuries inÀicted on a member of the awƯlu-class for the sake of creating discontinuity with former legal practice.”257 Likewise this Priestly revision of the Covenant Code formulation may equally be understood as a restatement, particularly since physical retaliation for any non-fatal assault incurred by any Israelite was permitted, albeit limited by both qualitative and quanti¿able equivalence—a substantial variation of the formulation in Exod 21:22–25, which was limited exclusively to injuries incurred by a pregnant women. These technical differences explained, it is also interesting to observe from a literary perspective that the Priestly restatement of the talionic formulation was enveloped by the account of blasphemy committed by the unnamed son of Shelomith bat Dibri,258 in Lev 24:13–16,259 and by his consequential stoning in 24:23.260 According to Mary Douglas, this operated as a reÀective talionic punishment.261 In this context “the blasphemer has hurled insults at the name of God, let him die by stones hurled at him.”262 Jacob Milgrom (who understands talion only in ¿nite terms) points out that the “talion in the story of the blasphemer is inexact: the punishment, stoning, does not correspond to the crime, cursing! Moreover God, the object of the curse, but not the community, should have cursed the blasphemer.”263 257. Eichler, “Examples of Restatement,” 398. 258. Baruch Levine explains that “the genealogy of the blasphemer in this incident is certainly signi¿cant. His Israelite mother came from the tribe of Dan, associated with the northern cult at the temple of Dan, which the Jerusalemites considered illegitimate,” Levine, Leviticus ćğĞĐČ, 166 n. 11. 259. “And the Lord spoke to Moses saying: ‘Take the blasphemer outside of the community; and let all who were within hearing lay their hands upon his head, and let the whole community stone him. And to the Israelite people speak thus: Anyone who blasphemes against his God shall bear his guilt. If he also pronounces the name of the Lord he shall be put to death. The whole community shall stone him; stranger or citizen, if he has thus pronounced the Name, he shall be put to death’.” 260. “Moses spoke thus to the Israelites. And they took the blasphemer out of the camp and pelted him with stones. The Israelites did as the Lord commanded.” 261. Although Mary Douglas does not use the designation of reÀective talion, this can be adduced from her explanation that, “in English the nearest double meaning is the metaphor of mud-slinging. The oracle would then run as follows: ‘he has slung mud, let him die by mud slung at him’,” Douglas, Leviticus as Literature, 207. 262. Ibid. 263. See J. Milgrom, Leviticus: A Book of Ritual and Ethics (Minneapolis: Fortress, 2004). 294. Mary Douglas proposes the following interpretation: “We are 1

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Milgrom explains that the additional maiming evokes the ritual blemish,264 but accepts also the view that ğĈĠ ġĎġ ğĈĠ (“fracture for fracture”) replaced “hand for a hand” and “foot for foot” in the Priestly formulation: As a reply to all these points, Pinchover has brought to my attention a fascinating page from the Vassal Treaties of Esarhaddon: “Just as one cuts off the hands and the feet and blinds the eyes of those who blaspheme against the god or the lord, so may they bring about your end.” Thus the talion law, which begins “fracture for fracture, eye for eye (v. 20), where “fracture” replaces “hand” and “foot,” actually corresponds to the punishment meted out by the god to a blasphemer.265

It is possible that the provision of ğĈĠ ġĎġ ğĈĠ (“fracture for fracture”) could also reÀect the symbolism of Neo-Assyrian curse formulations as much as the potential inÀuence of Babylonian tradition (i.e. LH 197), although what is also highly signi¿cant is that nowhere in this Priestly restatement (or any other P text) are the categories of instrumental, reÀective or symbolic talion evident with reference to any of the other injuries speci¿ed in the talionic ġĎġ (ta­at) formulation—namely, to those inÀicted upon the eyes, teeth, hands or feet. Not less important is the fact that the interpretation of Ġěė ġĎġ Ġěė, “a life for a life,” as indicative of live, human substitution (evident in Exod 21:23) is attested only in Lev 24:18, where it is restricted to qualifying payment for injuries to cattle and livestock. Having clari¿ed the context of these speci¿c differentiations in the Priestly restatement of the talionic ġĎġ (ta­at) formulation, what then of its other makeover, in Deut 19:21? 3.3.7. The Deuteronomic Revision: ĠěėĈ Ġěė, “Life for Life” The task here is to explain the differences between the talionic formulation in Deut 19:21 and its pre-cursor in the Covenant Code. As with the told that the blasphemer’s mother’s name was ‘Shelomith’, which might suggest retribution (shelummat), her father was Dibri, which suggests lawsuit (dibrah) by his mother, he was from the tribe of Dan, which suggests judgement (cf. Gen 49:16): ‘Dan shall judge his people as one of the tribes of Israel’). By a strongly directed selection of the meanings of the names the story told to children could go like this: ‘Once there was a man (with no name), son of Shelomith-Retribution, grandson of Dibri-Lawsuit, from the house of Dan-Judgment, and he pelted insults at the Name….and the Lord said, ‘he shall die, he pelted my name, he shall be pelted to death,” Douglas, Leviticus as Literature, 207. 264. As per Lev 21:17–23; 22:20, 21; Num 19:2, and Deut 16:17, 21. This principle is evident also in the Dead Sea Scrolls, where “a person affected with a visible blemish” is denied a place in the community; see 1QSa 2:7. 265. Milgrom, Leviticus: A Book of Ritual, 294. 1

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Priestly revision (Lev 24:18), I suggest that the principle of Ġěė ġĎġ Ġěė (“a life for a life”) as indicative of live, human substitution has entirely disappeared, where the Deuteronomic equivalent, ĠěėĈ Ġěė (“life for life”), quali¿ed the death penalty as punishment for a witness who falsely accused another of a capital offence.266 A fully developed judicial system is also presumed by the appointment of “magistrates and of¿cials for all your tribes” in Deut 16:18, where the testimony of a malicious witness in Deut 19:16–20 appears as follows: If a man appears against another to testify maliciously,267 and gives false testimony against him, the two parties to the dispute shall appear before the Lord, before the Priests or magistrates in authority at that time, and the magistrates shall make a thorough investigation. If the man who testi¿ed is a false witness,268 if he has testi¿ed falsely against his you shall do to him as he schemed to do to his fellow,269 Thus you will sweep out evil from your midst;270 others will hear and be afraid,271 and such evil things will not be done again in your midst.272

This provision is similarly attested also in the Temple Scroll at Qumran, where the text of Deut 19:15–21 is preserved with minor additions, 266. As described in the book of Susanna. See B. S. Jackson, “Susanna and the Singular History of Singular Witnesses,” in Essays in Honour of Ben Beinart: jura legesque antiquiores necnon recentiores (ed. W. de Vos et al.; Acta Juridica 1976; Cape Town: Juta, 1978), 37–54. 267. The man is designated as an ĘĕĎĀĊę, literally a “witness of destruction,” in Deut 19:16. 268. The ğĞĠĀĊę is differentiated as “a false witness” in Deut 19:18. 269. The requirement ČĐĎćē ġČĠęē Ĕĕč ğĠćĒ Čē ĔġĐĠęČ (“you shall do to him as he schemed to do to his fellow”) in Deut 19:19a will be examined further in Section 3.4 “ReÀective Talion and the ğĠćĒ Formulation.” 270. The expression đĈğĞĕ ęğċ ġğęĈČ, “thus you will sweep out evil from your midst,” in 19:20b appeared previously in 19:13, in a variant form used in relation to a murderer who escaped to a city of refuge and required extradition: ĐĞėċ ĔĊ ġğęĈČ ēćğĠĐĕ, “thus you will purge Israel of the blood of the innocent.” Likewise, ġğęĈČ đĈğĞĕ ęğċ quali¿ed the punishment of the false prophet and dream-diviner in Deut 13:6, the punishment of the idol (or other-gods) worshipper in Deut 17:7, and also prohibited sexual relationships in Deut 22:21, 22 and 24. 271. The phrase ČćğĐČ ČęĕĠĐ ĔĐğćĠėċČ (“thus all Israel will hear and be afraid”) in Deut 19:19b recalls also 13:12a (ČćğĐČ ČęĕĠĐ ēćğĠĐĀēĒČ) and the variant in 17:13, where the man who acts presumptuously and ignores the priest or magistrate is punished ĊČę ĖČĊĐčĐ ćēČ ČćğĐČ ČęĕĠĐ ĔęċĀēĒČ (“all the people will hear and be afraid and will not act presumptuously again”). 272. Deut 19:20, đĈğĞĕ ċčċ ęğċ ğĈĊĒ ĊČę ġČĠęē ČěĘĐĀćēČ, recalls also Deut 13:12b, where the designated “evil” was perpetuated by a close relative or friend who enticed the Israelite into the worship of another god. 1

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where Priests and Levites are listed together with judges.273 The instructions for the testimony of the malicious witness concludes with the Deuteronomic formulation of talion (19:20), as follows: Nor must you show pity: life for life, eye for eye, tooth for tooth, hand for hand, foot for foot.274

đėĐę ĘČĎġ ćēČ ĠěėĈ Ġěė ĖĐęĈ ĖĐę ĖĠĈ ĖĠ ĊĐĈ ĊĐ ēĉğĈ ēĉğ

Here the most glaring difference between the Covenant Code talionic formulation and its Deuteronomic restatement, is the absence of the preposition ġĎġ (taÜat),275 which is substituted with the preposition Ĉ, which would otherwise indicates “in” or “with.” An evaluation of the biblical occurrence of Ġěė, “life,” when pre¿xed by the preposition Ĉ is instructive. The form ĠěėĈ (and variants thereof, listed in the table below) indicates that whereas in the Covenant Code Ġěė ġĎġ Ġěė, “a life for a life,” denoted human substitution, ĠěėĈ Ġěė indicated a fatality, if not violent or embittered death, often at the hands of the enemy. Moreover, the plea in Ps 27:17 captures the identical concern of Deut 19:15– 16: “Do not subject me to the will of my foes, for false witnesses and unjust accusers have appeared against me.” Ġěė Pre¿xed with Ĉ, Indicating Mortal Death 1 Sam 28:9 Why are you laying a trap for me to ĐĠěėĈ ĠĞėġĕ ċġć ċĕēČ get me killed? ĐėġĐĕċē 2 Sam 14:7 That we may put him to death for the ĉğċ ğĠć ČĐĎć ĠěėĈ ČċġĕėČ slaying of his brother Ps 17:8–9  [Guard me from] my mortal enemies Đēę ČěĐĞĐ ĠěėĈ who encircle me. Ps 27:12 Do not subject me to the will of my foe. ċğĕ ĠěėĈ ĐėėġġĀēć 273. See 11Q19, Column LXIII, lines 8–9: “the two men between whom there is [the litigation] shall stand before me, and before the priests and the levites, and before the judges who will be there on those days, and the judges shall investigate,” in F. G. Martínez and E. J. C. Tigchelaar, eds. The Dead Sea Scrolls Study Edition. Vol. 2, 4Q274–11Q31 (Leiden: Brill, 1997–98), 1282–84. 274. The variant in 11Q19, Column LXIII, lines 11–12 reads: ċĒėĐę ĘČĎġ ćČē ēĉğĈ ēĉğ ĊĐĈ ĊĐ ĖĠĈ ĖĠ ĖĐęĈ ĖĐę ĠěėĈ Ġěė ČĐēę, “Not shall your eye take pity on him; life for life; eye for eye; tooth for tooth; hand for hand; foot for foot”; see ibid., 2:1284–85. 275. The particle ġĎġ, although identi¿ed throughout this study as a preposition, grammatically functions also as an adverbial accusative; see further, BDB ġĎġ, 1065–66. 1

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Do not subject him to the will of his enemies. Jonah 1:14 [Do not let us perish] on account of this man’s life. Job 21:25 Another dies embittered. Est 4:13 [“Do not imagine that you, of all the Jews,] will escape with your life.”

ČĐĈĐć ĠěėĈ ČċėġġĀēćČ ċčċ ĠĐćċ ĠěėĈ ęğĕ ĠěėĈ ġČĕĐ ċčČ ďēĕċē đĠěėĈ

So, given the circumstantial and linguistic differences between the use of Ġěė ġĎġ Ġěė in the Covenant Code (denoting live substitution) and Ġěė ĠěėĈ (requiring capital punishment of the malicious witness), what of the subsequent paraphrasing of corporeal punishments, where ĖĐę ġĎġ ĖĐę, “an eye for an eye” (in Exod 21:24 and Lev 24:20), recurs as ĖĐęĈ ĖĐę, “eye for eye,” in Deut 19:21?276 Here the underlying logic indicates that the punishment of a witness (who wrongly accuses someone else of a crime qualifying for physical mutilation) is that he should suffer the same consequence as he intended for his accused. Yet the immediate dif¿culty here is in fact that there are no crimes qualifying for corporal punishment to either the eyes, teeth, hands or feet are mentioned in Deuteronomic law. The sole Deuteronomic exemplar of such a mutilation occurs in 25:11–12,277 where a married woman’s palm (i.e. ĚĒ) is speci¿ed.278 Compared with the talionic principle in the Covenant Code (for nonfatal assault incurred by a pregnant woman in a brawl) and its revision in the Holiness Code (for any non-fatal assault incurred by any Israelite) the Deuteronomic version is presented in the most contrived context: in the event that a witness testi¿es maliciously against an innocent person (i.e. providing testimony in a case where the accused would then be liable for punishment by means of corporal punishment), the malicious witnesses would receive the same mutilation as that which he had intended for his victim. Technically, this could only be applied in the existing framework of Deuteronomic law under the following circumstances: in the case of a malicious witness who testi¿ed against a married women (for seizing her 276. ĖĐęĈ ĖĐę (“eye for eye”) is attested only in Isa 52:8: ĈČĠĈ ČćğĐ ĖĐęĈ ĖĐę ĐĒ ĖČĐĝ ċČċĐ (“for every eye shall behold the Lord’s return to Zion”).

277. This provision states: “If two men get into a ¿ght with each other, and the wife of one comes up to save her husband from his antagonist and puts out her hand and seizes him by the genitals, you shall cut off her hand [literally ‘her palm’] show no pity.” 278. The fact that the Aramaic targums and contemporary English versions translate the Hebrew phrase ċěĒĀġć ċġĝĞČ (“you shall cut off her hand”) does not alter this reality.

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husband’s opponent’s genitals during a brawl), but where the wife was subsequently proven innocent, the malicious witness would then have his or her palm removed. Aside from this highly contrived scenario, there are further aspects of the Deuteronomic revision which provide yet more intractable dif¿culties. In relation to the expression ĖĠĈ ĖĠ “tooth for tooth,” the proverbial statement in Ezek 18:1–4 may also be relevant: The word of the Lord came to me: “What do you mean by quoting this proverb on the soil of Israel: ‘Parents eat sour grapes and their children’s teeth are blunted’?279 As I live, declares the Lord God, this proverb shall no longer be current among you in Israel. Consider, all lives are Mine: The life of the parent and the life of the child are both Mine. The person who sins, only he shall die.”280

This prophecy indicates a pre-history of similar proverbial, oral traditions, albeit not speci¿cally talionic in purpose,281 where it is not the adult Israelite whose teeth were blunted, but rather his child’s, and moreover, for the punishment of sins committed by his parents. Given the Deuteronomic rejection of trans-generational punishment in 24:16— “parents shall not be put to death for children nor children be put to death for parents: a person shall be put to death only for his own crime”—it is possible that the ĖĠĈ ĖĠ, “tooth for tooth,” formulation could have 279. The expression ċėĐċĞġ ĔĐėĈċ ĐėĠČ may be read “their children’s teeth are blunted.” The NRSV translates “the children’s teeth are set on edge.” This reference to the blunting of a child’s teeth will be recalled in Section 3.6.2, “ĖĠ ġĎġ ĖĠ: Broken or Missing Teeth.” 280. Ezek 18:4 contradicts Exod 20:5b, “For I the Lord am an impassioned God, visiting the guilt of parents upon the children, upon the third and upon the fourth generations of those who reject Me,” and similarly Exod 34:7b, “He does not remit all punishment, but visits the iniquity of parents upon children and children’s children, upon the third and fourth generations.” See also Lam 5:7: “Our fathers sinned and are no more and we must bear their guilt”; and Isa 14:20–21: “Let the breed of evildoers, nevermore be named. Prepare a slaughtering block for his sons, because of the guilt of their father. Let them not arise to possess the earth.” 281. This is conveyed also by Jer 31:29–30: “In those days, they shall no longer say, ‘Parents have eaten sour grapes and children’s teeth are blunted’, but everyone shall die for his own sins: whosoever eats sour grapes, his teeth shall be blunted.” See also the opinion of Rabbi Jose ben Hanina in b. Mak. 24a, discussed in R. Hutton, “Are the Parents Still Eating Sour Grapes? Jeremiah’s Use of the ‘Mašal’ in Contrast to Ezekiel,” CBQ 71 (2009): 275–85, and B. A. Levine, “Scripture’s Account: Lex Talionis,” in Torah Revealed, Torah Ful¿lled: Scriptural Laws in Formative Judaism and Early Christianity (New York: T&T Clark International, 2008), 187–203 (193–94). 1

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reÀected this revision, so that that only the perpetrator of a crime (rather than their children) should receive punishment.282 To compound these issues further, there is the categorical nature of the preceding injunction (đėĐę ĘČĎġ ćē, “nor must you show pity”), which emphasizes the importance of judicial enforcement in Deuteronomic law. This recalls also the Akkadian injunction la uballuÓuši, “they shall not spare her life,”283 attested in the Middle Assyrian Palace Decrees (also referred to as the Harem Edicts), from the reign of Ninurta-apal-ekur (ca. 1191–1179 BCE), which Martha Roth translates as follows: (Any royal women), either the king’s wives or other women [of the palace, who…] ¿ght among themselves and in their quarrel blasphemously swear by the name of the god, […] he shall [(not)] enter; they shall cut the throat of the one who has [cursed(?)] the god Ashur…284

Capital punishment is implied in the next provision also: […They shall kill a palace woman who swears] by the name of the god for improper purposes […], they shall not spare her life.285

While Shalom Paul has compared these provisions to the account of the stoning of the blasphemer in Lev 24:10–23,286 the force of the injunction may also be related to the opening apodosis in Deut 19:20, đėĐę ĘČĎġ ćē (“nor must you show pity”). To what extent the Deuteronomic phrase was also a precursor on the ban of ğěĒ, or “ransom,”287 is also beyond the scope of this discussion.288

282. The representation of this legal reality in a historiographical narrative is available in 2 Chr 25:1–4: “Amaziah was twenty-¿ve years old when he became king, and he reigned twenty-nine years in Jerusalem; his mother’s name was Jehoaddan of Jerusalem. He did what was pleasing to the Lord, but not with a whole heart. Once he had the kingdom ¿rmly under control, he executed the courtiers who had assassinated his father the king. But he did not put their children to death for [he acted] in accordance with what is written in the Teaching, in the Book of Moses, where the Lord commanded, ‘Parents shall not die for children, nor shall children die for parents, but every person shall die only for his own crime’.” 283. Roth, LCMA, 202. 284. Ninurta-apal-ekur Law 10; ibid., 201–2. 285. Ninurta-apal-ekur Law 11; ibid., 202. 286. Shalom Paul, “Biblical Analogues to Middle Assyrian Law,” in Firmage, Weiss and Welch, eds., Religion and Law, 333–50 (346–50). 287. Num 35:30: “You may not accept a ransom for the life of a murderer who is guilty of a capital crime; he must be put to death.” 288. This was informally suggested by Bernard Jackson during our discussion of an earlier draft of the present chapter. 1

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In conclusion, therefore, the Deuteronomic restatement of the talionic formulation in 21:19 suggests that its ¿nite application was technically viable only in these two notional cases: 1. Where ĠěėĈ Ġěė (“life for life”) denoted capital punishment of a malicious witness, who would deliberately commit an innocent person to death, attested also in the Temple Scroll at Qumran. 2. In the event that false testimony was provided in a case where physical mutilation could have been incurred by the accused, the requirement of “eye for eye, tooth for tooth, hand for hand, foot for foot,” indicated that the malicious witness should suffer exactly the same consequence as that which he had intended for his victim. In terms of available Deuteronomic law, the provisions in 25:11–12 (for example) would suggest that a witness whose false testimony was intended to convict a married woman of this crime, could expect to receive the same mutilation of his or her palm (as the innocent wife would have received, if his wrongful accusations met with success). 3.4. ReÀective Talion and the Biblical ğĠćĒ (kaasher) Formulation In the previous discussion of ¿nite or strict sense talion, the terminological distinction, identi¿ed by Bernard Jackson,289 was designated as the ğĠćĒ (kaasher) formulation.290 The pre-history of this formula is extremely relevant to the role of reÀective talion,291 where the “idea of an intrinsic link between act and consequence,” is key to the biblical message. Such notions are epitomized in much broader, general terms in Sumerian proverbs, one of which reads, “Let kindness be repaid to him who repays kindness.”292 Furthermore, in bilingual Akkadian–Sumerian forms we ¿nds such statements as “May kindness be repaid to him who 289. Blenkinsopp, Wisdom and Law, 47. 290. The conjunction ğĠćĒ (kaasher), meaning “as” or “like,” is found in Lev 24:19 (Čē ċĠęĐ ĖĒ ċĠę ğĠćĒ, “as he has done so shall it be done to him”), Lev 24:20 (ČĈ ĖġĐ ĖĒ ĔĊćĈ ĔČĕ ĖġĐ ğĠćĒ, “the injury he inÀicted on another shall be inÀicted on him”), and in Deut 19:19 (ČĐĎćē ġČĠęē Ĕĕč ğĠćĒ Čē ĔġĐĠęČ, “you shall do to him as he schemed to do to his fellow”). See further BDB, 84, ğĠć, and 455, ğĠćĒ. 291. ReÀective talionic punishments mirror the crime or negative character trait of the perpetrator, and project them back onto his (or her) person. 292. SP 14:1, in B. Alster, The Proverbs of Ancient Sumer: The World’s Earliest Proverb Collection, vol. 1 (Bethesda: CDL, 1997), 216. The alternative, “let revenge be taken on one who takes revenge,” is identi¿ed in The Proverbs of Ancient Sumer: The World’s Earliest Proverb Collection, vol. 2 (Bethesda: CDL, 1997), 431. 1

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does a kindness. May Ñunma grant favour to him of whom favour is predicated.”293 In this same vein, we read that “he who insults is insulted; he who sneers, is sneered at,”294 which Bendt Alster explains succinctly: “a person is treated according to his behaviour.”295 This context is also informed by Richard Haase’s valuable list of “speigelnde Strafe,”296 or mirroring punishments, which includes an example from the Pre-Sargonic laws of Uru’inimgina.297 The text in question can be reconstructed as follows: “If a woman speaks… disrespectfully? to a man, that woman’s mouth is crushed with a ¿red brick, and the ¿red brick is displayed at the city gate.”298 While this is technically a form of instrumental talion, where the offending mouth is injured, it could equally be understood as a form of reÀective talion, where the offensive content of the woman’s speech warranted punishment. Such processes are depicted likewise in the genre of early rabbinic Midrash, where this example—attributed to Judah bar Nachman in the name of R. Shimon ben Lakish in Gen. Rab. 85:9—is a case in point: “The Holy One, Blessed Be He, said to Judah: ‘You deceived your father with a kid goat,299 on your life, Tamar will deceive you with a kid goat’.”300 293. W. G. Lambert, Babylonian Wisdom Literature (Oxford: Clarendon, 1960), 264. 294. SP 3:69 in Alster, The Proverbs, 1:92. See also SP 11:12 (ibid., 1:192), and the interpretation that “a person is treated according to his behaviour” (ibid., 2:384). 295. Ibid., 2:384. 296. “Die Ovale Platte berichtet, der Mund einer Frau, welche sich despektierliche (?) gegenüber einem Manne geäußert habe, sei mit einem Ziegelstein eingerieben worden, der Mann dann am Stadttor aufgehängt habe (III 58). Die ‘Behandlung’ der Frau ist als speigelnde Strafe zu verstehen, denn sie zeigt, daß sich der Mund versündigt hat,” Haase, “Talion und spiegelnde Strafe,” 199. 297. Uru’inimgina [Uru-KA-gina] was a third-millennium ruler (ca. 2378–2371 BCE) in early dynastic Lagaš who was known for his social and ¿scal decrees, which included measures against increasing the indebtedness of his people and his attempts to curb excessive taxation. Raymond Westbrook explains: “It is a moot point whether the text of the edict in itself was authoritative. This must have been the case with tariffs, but were the actual words of an edict interpreted by the court? The extant texts of Uru’inimgina’s Edict are not the original version and not authoritative. They are dedicatory inscriptions from later in his reign in which the king boasts of his various achievements and in doing so quotes extensively from the reforms that he had instituted at the beginning of his reign,” Westbrook, “Cuneiform Law Codes,” 215–16. 298. J. S. Cooper, Sumerian and Akkadian Royal Inscriptions. Vol. 1, PreSargonic Inscriptions (New Haven: The American Oriental Society, 1986), 77. 299. In Gen 37:31 Jacob’s sons slaughter a kid goat and dip Joseph’s coat into its blood. 1

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This rationalization of punishment provides also the underlying basis of the ğĠćĒ formulation of talion, which Bernard Jackson argues indicates “qualitatively equivalent retribution,”301 and de¿nes as follows: 1. “The fact that in the ġĎġ (taÜat) sources it is the offender who must personally replace the lost prisoner has precisely the quantitatively limiting effect, which we have seen the (kaasher) formula to lack.”302 2. The ğĠćĒ sources focus on the effects of physical harm, unlike “the taÜat sources, dealing with escaped prisoners, are concerned with (in effect property) losses: whether the escapees are prisoners of war (or prisoners of conscience?: the Ba!al worshippers), they are completely at the disposal of the ruler, to be enslaved or killed at will.”303 3. “The kaasher sources deal with intentional offences, committed in cold blood:304 in the ta­at sources, the unfortunate guards are probably no more than negligent. Certainly there is no suggestion that they must stand in place of the escapee only if they have deliberately connived at the prisoner’s escape.”305 Additional correspondence is also available in the terminology witnessed in Middle Assyrian legal tradition. In MAL A50 (line 67), kî ša epušušini eppušušu indicates that the assailant “shall be treated as [he has] treated her.”306 Lines 65–68 read as follows: 300. This midrash is cited also by Jon Levenson, in support of his argument for sacri¿cial theology, vis-à-vis the ram for Isaac in Gen 22:13 and the substitution of the lamb for the ¿rst-born sons in Exod 12:13 and 23. See Levenson, The Death and Resurrection, 158–59. 301. Jackson, Wisdom Laws, 197. 302. Ibid., 199. This is apparent in Judg 11:36, where Jephtah’s daughter states: đĐěĕ ćĝĐ ğĠćĒ Đē ċĠę (“do to me as you have vowed, [seeing that the Lord has vindicated you from your enemies]”). 303. Ibid. This interpretation of “a life for a life” is based on 2 Kgs 10:24, ČĠěė ČĠěė ġĎġ (“he shall forfeit his life”). 304. As exempli¿ed in Judg 1:6–7, “Adoni-bezek Àed, but they pursued him and captured him; and they cut off his thumbs and his big toes. And Adoni-bezek said, ‘Seventy kings, with thumbs and big toes cut off, used to pick up scraps under my table; as I have done so God has requited me’,” where ĔĐċēć ĐēĀĔēĠ ĖĒ ĐġĐĠę ğĠćĒ occurs. 305. Jackson, Wisdom Laws, 199. 306. Discussed earlier in relation to the principle of Ġěė ġĎġ Ġěė (“a life for a life”) in Exod 21:23 and napšate umalla, meaning, “he pays (on the principle of) a life (for a life).” 1

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DAM ša-a LÚ] ša DAM-at LÚ

The wife of the man] who [caused] the (other) married woman ša-[a ŠÀbi-ša ú-ša-ad-di]-ú-ni [to lose] the fruit of [her womb] ki-[i- ša-a e-pu]-šu-ši-ni e-pu-[šu-šu shall be treated as [he has] he treated her

This could suggest that an Assyrian legal principle ¿ltered not only into the legal consciousness of the biblical scribes, but is integrated also into prophetic and historiographical memory, where the ğĠćĒ formulation appears also in the characterization of Samson, in his role as military leader and in the aftermath of his uncontrollable rage. This is perhaps indicated in the conversation in Judg 15:10–11: They [the Philistines] said: “We have come to take Samson prisoner and to do to him as he has done to us.”307 Thereupon three thousand men of Judah went down to the cave of the rock of Etam, and they said to Samson, “You knew the Philistines rule over us; why have you done this to us?” He replied, “As they did to me, so I did to them.”308

These spiralling effects of uncontrolled vengeance effectively demonstrate the absence of “the quantitatively limiting effect,”309 of the talionic ġĎġ (taÜat) formulation, ending in tragedy in the Samson narrative. To conclude this discussion, I suggest that the imprint of the broader Sumerian and Assyrian retributive traditions are captured in the biblical exemplars of the ğĠćĒ formulation of talion, where its terminological application is not limited to expressions of law, but spans the genres of narrative, prophecy and historiographical sources as follows: Lev 24:19 Lev 24:20 Deut 19:19 Num 14:28 Num 15:14 Num 33:56 Judg 1:7

1

The ğĠćĒ Formulation of Talion As he has done ċĠę ğĠćĒ so shall it be done to him Čē ċĠęĐ ĖĒ The injury he inÀicted on another, ĔĊćĈ ĔČĕ ĖġĐ ğĠćĒ ČĈ ĖġĐ ĖĒ shall be inÀicted on him You shall do to him as he schemed Ĕĕč ğĠćĒ Čē ĔġĐĠęČ to do to his fellow ČĐĎćē ġČĠęē I will do to you ĐėčćĈ ĔġğĈĊ ğĠćĒ Ĕċē ċĠęć ĖĒ just as you have urged me As you do, ČĠęġ ğĠćĒ so shall it be done ċĠęĐ ĖĒ So that I will do to you ġČĠęē ĐġĐĕĊ ğĠćĒ ċĐċČ ĔĒē ċĠęć Ĕċē what I planned to do to them As I have done ĐġĐĠę ğĠćĒ so God has requited me ĔĐċēć ĐēĀĔēĠ ĖĒ

307. Čėē ċĠę ğĠćĒ Čē ġČĠęē (“to do to him as he has done to us”). 308. Ĕċē ĐġĐĠę ĖĒ Đē ČĠę ğĠćĒ (“as they did to me, so I did to them”). 309. Jackson, Wisdom Laws, 199.

3. Talion in Biblical Law and Narrative Judg 11:36 Judg 15:10 Judg 15:11 Obad 15

Jer 50:15 Ezek 12:11 Ezek 16:59 Lam 1:22

Do to me as you have vowed To do to him as he has done to us As they did to me, so I did to them As you did, so it shall be done to you; your conduct shall be requited Take vengeance on her, Do to her as she has done As I have done, so it shall be done to them I will deal with you as you have dealt And deal with them as You have dealt with me310

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Đē ċĠę đĐěĕ ćĝĐ ğĠćĒ Čē ġČĠęē Čėē ċĠę ğĠćĒ Đē ČĠę ğĠćĒ Ĕċē ĐġĐĠę ĖĒ ċġĐĠę ğĠćĒ đē ċĠęĐ đĠćğĈ ĈČĠĐ đēĕĉ ċĈ ČĕĞėċ ċĈĀČĠę ċġĐĠę ğĠćĒ ĐġĐĠę ğĠćĒ Ĕċē ċĠęĐ ĖĒ đġČć ĐġĐĠęČ ġĐĠę ğĠćĒ Đē ġēēČę ğĠćĒ Čĕē ēēČęČ

3.5. Divine Retribution and the Representation of Human Remains Having clari¿ed that the requirement of ¿nite talion was linguistically differentiated from the payment of a monetary ¿ne in the Covenant Code, how were concrete representations of physical mutilation understood in biblical memory?311 Admittedly, human mutilations were evoked primarily in the context of the “acted out conditional curse,”312 a context that raises the following question: What role did human remains (whether full limbs or Àesh) represent in relation to the concrete meaning of “an eye for an eye” in biblical tradition? The depiction of human remains was located in the validation and ful¿lment of Israel’s covenantal curses, which were thought to be activated directly by the divine will. As such, the visualization of severed body parts provided the symbolic means of representing the conditional curse, where the disobedient vassal (i.e. Israel in the Hebrew Bible) is depicted as a dead carcass in both narrative and prophetic traditions. This symbolism was crucial to “Israelite social memory,”313 where, as Cynthia 310. Cf. Lam 2:17: “The Lord has done what he proposed.” 311. That is, in ¿nite or strict sense terms, even when qualitative and quantitative equivalence was not obvious. 312. R. Polzin, “HWQY! and Covenantal Institutions in Early Israel,” HTR 62 (1969): 227–40 (239). Polzin notes that further examples occur in 2 Sam 21:6–13, Num 16:14 and 1 Sam 11:1–10. 313. C. Chapman, The Gendered Language of Warfare in the Israelite–Assyrian Encounter (HSM 62; Winona Lake; Eisenbrauns, 2004), 170. 1

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Chapman argues, “tracing gendered metaphorical complexes diachronically within the biblical text showed that the biblical writers of the postAssyrian period were in conversation with their predecessors as they updated the historical memory of the Assyrian period.”314 It is in light of these “social memories” that the prophetic conception of God’s interaction with his people, evoked repeatedly in the cycle of their sin, atonement and forgiveness, featured dramatically. According to Jeremiah and Ezekiel, Israel’s sin and inevitable punishments were considered to be patterns that could ultimately be changed,315 although as Jeremiah acknowledges, the symbolism of the sacri¿ced animals, here equated with Israelite carcasses, was fully recognizable to his audience: “The of¿cers of Judah and Jerusalem, the of¿cials, the priests, and all the people of the land who passed between the halves of the calf, shall be handed over to their enemies, to those who seek to kill them. Their carcasses shall become food for the birds of the sky and the beasts of the earth” (Jer 34:19–20). As Todd Lemos explains: “covenanters are symbolically equated with mutilated animals, a representation that communicates to them not only the pain that they will endure if they break the treaty but also the dehumanizing loss of status.”316 Furthermore, in Jeremiah’s analogy, there is every ingredient of the reÀective talionic process: Israel’s punishment mirrors its crime, and the “intrinsic link between act and consequence”317 is clearly demonstrated. The proverbial refrain, whereby “he who digs a pit will fall into it” (Prov 26:27), is represented by the potential dead Àesh of the Israelite sinners: having broken their covenant they too shall be broken. This symbolism also saturated Priestly narrative, notably in the account of Pinchas’ killing of Zimri and the Midianite woman, Cozbi, at a time when the Israelite men also had “profaned themselves by whoring with the Moabite women.”318 The conÀuence in law and narrative here is striking, where the talionic ġĎġ (ta­at) preposition (translated here as

314. Ibid., 164. 315. According to Jer 34:8–10, the Israelites could avert divine punishment by releasing their fellow Judean slaves and in 35:13–15 by obeying God’s commands and turning back from their wicked ways. This is a somewhat different option to the corrective envisioned in Ezek 24:14. 316. T. M. Lemos, “Shame and Mutilation in the Hebrew Bible,” JBL 125 (2006): 225–41 (238). 317. Blenkinsopp, Wisdom and Law, 47. 318. It should be noted that it was not the “whoring” but that the woman had “invited the people to the sacri¿ces for their god” in Num 25:2, that appeared to be the more serious infraction. 1

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“because”) both justi¿ed Pinchas’ act and, at the same time, minimized the potentially unlimited extent of divine vengeance. Numbers 25:13 reads: because he took impassioned action for his God thus making expiation for the Israelites.

ČĐċēćē ċėĞ ğĠć ġĎġ ēćğĠĐ ĐėĈĀēę ğěĒĐČ

Here the crucial point is that without Pinchas’ intervention—by stabbing both Cozbi and Zimri—the Israelites were destined to become not so much “food for the birds of the sky and the beasts of the earth” (Jer 34:20), but rather as the Priestly redactor preferred, dead from the effects of the ravaging plague: The Lord spoke to Moses saying, “Assail the Midianites and defeat them—for they assailed you by the trickery they practised against you— because of the affair of Peor and because of the affair of their kinswoman Cozbi, daughter of the Midianite chieftain, who was killed at the time of the plague on account of Peor.” (Num 25:16–18)319

The symbolism of the “acted out conditional curse,”320 characterizes another disturbing account, in this case the gang-rape and murder of the levite concubine, whose husband reacts as follows: When he came home, he picked up a knife and took hold of his concubine and cut her up limb by limb into twelve parts. He sent them through-out the territory of Israel. And everyone who saw it cried out “Never has such a thing happened or been seen from the day the Israelites came out of the land of Egypt to this day.” (Judg 19:29–30)

The physical parcelling and distribution of this woman’s body was based on the symbolism that such acts were the appropriate, if shocking, response to Israel’s de¿ance of her own covenant.321 Unlike “the contractual cutting up of animals [is now] followed by a cutting of human Àesh,”322 prescribed with the initiation of circumcision in Gen 17, the symbolism of the dead woman’s Àesh and limbs clearly conveys Israel’s ultimate violation of the divine covenant. The representation of Israel’s destruction (allegedly “the best of the Àock”) is explicit in Ezek 24:3–6: 319. The reÀective talion is explicit in the instruction to “assail the Midianites” (ĔĐėĐĊĕċĀġć ğČğĝ, 25:17), “for they assailed you” (ĔĒē Ĕċ ĔĐğğĝ ĐĒ, 25:18), and where the preposition ĐĒ, meaning “for,” appears instead of ğĠćĒ (kaasher). 320. Polzin, “HWQY! and Covenantal Institutions,” 239. 321. Reminiscent also of Ahijah of Shilo, who tears his robe into twelve pieces, and gives ten of them to Jeroboam to symbolize his prophecy that God is “about to tear the kingdom out of Solomon’s hands”; see 1 Kgs 11:29–31. 322. Alter, The Five Books, 82. 1

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The Body as Property Further, speak in an allegory to the rebellious breed and say to them: Thus says the Lord God, “Put the cauldron [on the ¿re], put it on, and then pour water into it; Collect in it the pieces [of meat]; every choice piece, thigh and shoulder; Fill it with the best cuts, take the best of the Àock and pile the cuts in it; Get it boiling briskly and cook the cuts in it. Assuredly thus says the Lord God Woe to the city of blood, a cauldron whose scum is in it, whose scum has not been cleaned out.”

Admittedly the Priestly “cut,” or “excision” (ġğĒ), is absent in this representation,323 and this may be explained either by its prophetic revisioning as an allegory, or else by Ezekiel’s plan for Israel’s eventual redemption through its ritual puri¿cation, which would not be possible if the excision was fatal. The description of the Judean “city of blood” (Ezek 24:9) ablaze with the bodies of the sinful children of Israel also recalls Ezek 16:6,324 where the Israelites’ blood was symbolized as the very medium that was saturating, if not drowning, them, yet provided the very apotropaic means for their redemption.325 Yet in Ezekiel’s mind, the collective “scum” of the sinning Israelites can only be redeemed by divine wrath: “you shall never be clean until I have satis¿ed My fury upon you” (Ezek 24:14). The symbolism of Israel’s disobedience represented as physical destruction recurs in Ezek 24:14: “[The Lord] said to me, ‘O mortal, these are the men who plan iniquity and plot wickedness in this city, who say “There is no need now to build houses; this [city] is the pot and we are the meat” (Ezek 11:2–3). 3.6. Instrumental, ReÀective and Symbolic Talion 3.6.1. ĖĐę ġĎġ ĖĐę: Eyes and the Misuse of Sight In light of the concrete representation of Israel’s physical destruction, how was the formulation ĖĐę ġĎġ ĖĐę, “an eye for an eye,” conceived in 323. As in the ongoing rebuke of Ezek 24:9–13: “Assuredly said the Lord God, Woe to the city of blood! I will in turn make a great blaze. Pile on the logs, kindle the ¿re, cook the meat through and stew it completely and let the bones be charred. Let it stand empty on the coals, until it becomes so hot that the copper glows. Then its uncleanliness shall melt away in it, and its rust be consumed. It has frustrated all effort, its thick scum will not leave it—Into the ¿re with its scum.” 324. Ezek 16:6: “When I passed by you and saw you wallowing in your blood, I said to you: ‘Live in spite of your blood.’ Yea, I said to you ‘Live in spite of your blood.” 325. As was the case in Exod 4:24–26, where circumcision blood assuages the avenger and releases Moses from throes of death. 1

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biblical memory? Apart from its ¿nite or strict sense use in biblical law (i.e. in Exod 21:24; Lev 24:20; Deut 19:21), I suggest that this expression was primarily understood as a form of instrumental talion, where its use was restricted exclusively to Israel’s own sinners. As such, it was rationalized as a punishment for inappropriate sexual desire, for failures in national leadership and also as a consequence of parental ingratitude in biblical and early rabbinic traditions. In addition, it is also evident that ĖĐę ġĎġ ĖĐę (“an eye for an eye”) evoked also military talionic convention,326 where the physical gouging of an eye would permanently mark the victim and publicize not only his personal shame but also that of his king, his god and his people. Before clarifying this proposal, it is ¿rst necessary to acknowledge the reception of this formulation in early rabbinic tradition, explained here by Bernard Jackson as follows: Its very decontextualization is a form of abstraction, despite the concrete imagery in which it is expressed. The “eye” here functions neither as the eye which sees the talionic punishment (Deut 19:21), nor as the absent eye taken in retaliation. It now functions as part of a formula: whatever damage has been suffered, you are entitled to seek comparable damage in return.327

In light of the anti-Pharisaic sentiments evident in early Christianity, the rabbinic “decontextualization” of the formulation ĖĐę ġĎġ ĖĐę (“an eye for an eye”) as a technical “abstraction” requiring monetary compensation, was an inevitable, if not predictable, reaction by the Tannaitic sages,328 which does not automatically determine its biblical meaning.329 As such, the following questions need to be addressed here: Were comparable damages for non-fatal injuries to the eyes represented by ¿nancial penalties in biblical traditions? And what accounts of equivalent physical assaults, by blinding or injury to the eyes, likewise preserved? 326. I have de¿ned this earlier as the physical mutilation of an enemy, as a means of providing public and visible evidence of their defeat. 327. Jackson, Studies in the Semiotics, 297. William Miller prefers, “Eyes and teeth, like discrete grains of wheat and barley or peppercorns, once abstracted from their bodies, look fungible and suitable to being plopped in the pans of scales. Perfect balance of fungibles, almost like coinage—in fact very much like coinage,” W. I. Miller, Eye For Eye (Cambridge: Cambridge University Press, 2006), 30. 328. See further J. F. Davis, Lex Talionis in Early Judaism and the Exhortation of Jesus in Matthew 5.38–42 (JSNTSup 281; London: T&T Clark International, 2005). 329. This is irrespective of the doctrinal arguments advanced, for example, by Y. Copperman, “Understanding ‘An Eye for an Eye’: Where ‘Peshat’ Contradicts Halacha,” Jewish Thought 1, no. 2 (1991): 9–22. 1

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Probably the best-known biblical example of blinding is that of Samson, who begs: “Please remember me and give me the strength just this once, O God, to take revenge of the Philistines, if only for one of my two eyes” (Judg 16:28). Samson’s request to avenge this loss is ful¿lled, as the Philistine temple comes crashing down on its worshippers and we are informed: “those who were slain by him as he died outnumbered those who had been slain by him when he lived,”330 a tragic result that exempli¿es military talionic convention also.331 And it here that the signi¿cance of Samson’s blinding is explained by the later generations of sages in their account of ċĊĕ ĊĉėĒ ċĊĕ (“measure for measure”) consequences in m. Sot. 1:8, as follows: Samson went after [the desires of] his eyes, therefore the Philistines cut out his eyes, as it is written in Judg 16:21, “The Philistines seized him and gouged out his eyes.”332

ČĐėĐę ğĎć đēċ ĖČĠĕĠ ČĐėĐęĀġć ĔĐġĠēě ČğĞė đĒĐěē (čď ĔĐďěČĠ) ğĕćėĠ ĔĐġĠēě ČċČčĎćĐČ ČĐėĐęĀġć ČğĞėČ

Likewise in the Graeco-Roman period the most common punishment by the gods was blindness,333 where elements of crime, attribution of blame, identi¿cation of a culprit, repentance and retribution also provided a theoretical framework for the rationalization of instrumental talion, or 330. Here in Judg 16:30 the preposition ğĠćĕ (maasher), meaning “as” is a variant of the ğĠćĒ (kaasher) form (attested in Judg 16:30): “those who were slain by him as he died outnumbered those who had been slain by him when he lived” (ČĐĐĎĈ ġĐĕċ ğĠćĕ ĔĐĈğ ġĐĕċ ğĠć ĔĐġĕċ ČĐċĐČ). 331. As Kathryn Kravitz observes: “Samson’s vengeance has reversed the trophy-captive ceremony that has been so vividly depicted. His vengeance restores his hero’s status, for he has killed 3,000 Philistines. Moreover, the feast in honor of Dagon’s strength has become the scene of Dagon’s humiliation and a demonstration of his defeat; his temple is destroyed and his worshippers are killed. Just as the trophy ceremony simultaneously honors the victor and shames the vanquished, its reversal inverts the relationship between the opposing sides,” K. F. Kravitz, “Biblical Remedial Narratives: The Triumph of the Trophies,” in Bringing the Hidden to Light: The Process of Interpretation. Studies in Honor of Stephen A. Geller (ed. K. F. Kravits and D. M. Sharon; Winona Lake: Eisenbrauns, 2007), 115–29. 332. This is based on Samson’s behaviour in Judg 16:1, which recounts his onenight stand with a whore in Gaza, an event which pre¿gures his relationship with Delilah, whom he later meets in Wadi Sorek (Judg 16:4). 333. Nicholas Vlahogiannis explains: “Blindness signi¿ed exclusion, the inability to gather visual information, helplessness, social isolation and a dependence on others to mediate relations with the physical and social environment,” N. Vlahogiannis, “Disabling Bodies,” in Changing Bodies, Changing Meanings: Studies on the Human Body in Antiquity (ed. D. Montserrat; Routledge: London, 1998), 13–54 (29–30).

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punishing the offending organ. The logic of this retributive process is explicit in classical literature, where “the blinding of Oedipus, Teiresias, the poet Phineus and others, were all punishments linked to transgressions, usually sexual, that overstepped the limits and boundaries set by the gods. Teireisas had seen Athena naked, while Oedipus had committed the primeval taboo of incest.”334 While none of these situations are relevant to the legal formulation of ĖĐę ġĎġ ĖĐę (“an eye for an eye”), they nonetheless shed fascinating light on the punishment of the Sodomites in Gen 19:5, as follows: And they335 shouted at Lot and said to him, “Where are the men who came to you tonight? Bring them out to us so that we may be intimate with them.”

Čē ČğĕćĐČ ďČēĀēć ČćğĞĐČ ĔĐĠėćċ ċĐć ċēĐēċ đĐēć ČćĈĀğĠć ČėĐēć ĔćĐĝČċ Ĕġć ċęĊėČ

Lot’s response is to offer his daughters to the violent mob, encouraging them: “do to them as you please.”336 His generosity is, however, rebuffed. And as the Sodomites “pressed hard against the person of Lot and moved forward to break the door” (Gen 19:9), the convenient instrumental talionic solution is deployed: “But the men stretched out their hands and pulled Lot into the house with them and shut the door. And the people who were at the entrance of the house, young and old, were struck with a blinding light, so that they were helpless to ¿nd the entrance” (Gen 19:10–11). Here (as in the ¿nal destruction of Sodom) we can appreciate the force of the “universal human trait that aetiologically evil consequences must have had an evil cause,”337 through which physical injuries are then attributed to supernatural agencies: “Hence, Phillip of Macedon’s eye: although it was lost in battle, the tradition evolved that he saw his wife in bed with the god Amon. He saw something he should not have seen (Plutarch, Alex. 3).”338 The blinding of eyes as a punishment for 334. Ibid., 30. Vlahogiannis identi¿es further literary parallels as follows: “Demodocus, the bard of Alcinous in the Odyssey, had been blinded by the Muses but compensated with the power of song (Od. Viii 62–4),” ibid., 30–31, and “even Appius Claudius, who according to Livy was punished with blindness owing to the unforgettable anger of the gods (ix 29.11),” ibid., 31. 335. That is, the local Sodomite men, seeking Lot’s (apparently) male guests. 336. The instruction “and do to them as you please,” is a literal reading of ČĠęČ ĔĒĐėĐęĈ ĈČġĒ Ėċē (“and do to them what is good in your eyes”) in Gen 19:9, which states: “Look, I have two daughters who have not known a man. Let me bring them out to you and do to them as you please; but do not do anything to these men as they have come under my roof.” 337. Vlahogiannis, “Disabling Bodies,” 29. 338. Ibid. 1

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sexual immorality is attested in two further examples. First, “Another example is a story retained by Aelian of the severe law codi¿er Zaleucus of Sicilian Locri, who decreed that adultery, a violation of the oikos, be punishable with blindness (VH xiii 24),” and secondly: “A similar example of offence against social properties is the incident recorded by Pausanius, where the violent Byras of Argos, appointed commander of the Argive army in ca. 421 BCE, raped a girl on the way to her wedding. That night she retaliated by blinding the sleeping assailant (ii20.2).”339 While the organ responsible for the initial activation of the crime, the gazing eye, is punished, it is notable that in any patriarchal society (whether biblical, Mesopotamian or Graeco-Roman) the desire for prescribing the exact punishment of an offending organ was never taken to its logical consequence, where castration of a serial rapist is never attested. The gazing eye, as a euphemism for sexual desire, is not con¿ned to genres of biblical or Graeco-Roman literature, as Shalom Paul observes, “though changes in linguistic taste and convention are prevalent in all languages and periods, it is always of interest to note how some euphemistic expressions, in particular those which pertain to discrete, intimate relations, cross linguistic, cultural and chronological boundaries.”340 The Akkadian euphemism for the covetous eye, “employed when the object of the libidinous desire is a member of the opposite sex,”341 is a case in point, where it is also explicit in Ištar’s attraction to Gilgamesh: ana dunqi ša GilgƗmeš Ưna (vars. ƯnƯ IGI. MEŠ) ittaši rubûtu Ištar (“Ishtar, the princess, looked covetously342 at the beauty of Gilgamesh,” VI.6). With unabashed forthrightness she gives vent to her cupidity: ‘Come to me, Gilgamesh, be my lover! Give me your fruit (inbƯka) as a gift!’ (VI.7–8).343 Paul compares the “unsuccessful seduction scenario” 339. Ibid., 29. 340. S. M. Paul, “Euphemistically ‘Speaking’ and a Covetous Eye,” HAR 14 (1994): 193–204 (200). 341. Ibid., 199. 342. Here the word “covetously” is not present in the original cuneiform text, as pointed out to me by Mark Geller. Accordingly, Andrew George also provides the following translation of VI.6, a-na dum-qi šá dGIŠ-gim-maš i-ni it-ta-ši ru-bu-tu dištar, “The lady Ištar looked covetously on the beauty of Gilgameš,” but explains in a footnote that i-ni it-ta-ši is literally “raised the eyes,” with the variant manuscript tradition i-na it-ta-ši indicating “raised an eye.” George, The Babylonian Gilgamesh Epic, 619 n. 3. 343. Paul, “Euphemistically ‘Speaking’,” 199, where further reference to Ištar’s “desirous eye” in Gilgamesh recurs as follows: “A similar fate also befell Isullanu, her father’s gardener, the only one who had the audacity to reject her delectable 1

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between Joseph and his master’s wife, who “lifts her eyes” towards her desired, before demanding, “lie with me,”344 which is also “where the exact same sequence of coveting and propositioning as in the Ishtar soliloquies”345 occurs. Yet while the gouging of eyes is attested in earlier Babylonian laws, it is not imposed for sexual transgressions, but rather only as a consequence for the rejection of parental authority. In this context, the otherwise distinct category of instrumental talion becomes almost indistinguishable from that of the reÀective form, particularly in LH 192–193, as follows: LH 192

If the child of (i.e. reared by) a courtier (mƗr girseqîm) or the child of (i.e. reared by) a sekretu346 should say to the father who raised him or two the mother who raised him, “You are not my father” or “You are not my mother,” they shall cut out his tongue.

LH 193

If the child of (i.e. reared by) a courtier (mar girseqîm) or the child of (i.e. reared by a sekretu) identi¿es with his father’s house and formally rejects the father who raised him or the mother who raised him and departs for his father’s house, they shall pluck out his eye.

These provide a striking contrast to the biblical exemplars, which unanimously sentence the child to death. Here the relevant stipulations are located in Exod 21:15 and 17;347 Lev 20:9,348 and Deut 21:18–21.349 Somewhat less emphatic is the tradition in Prov 20:20, which states: “One who reviles his father or his mother, light will fail him when darkness comes.” In keeping with the majority of biblical commentaries, David Marcus explains this failing light as “he will be cut off.”350 This

desire: ‘You shall look at him desirously (Ưna tattaši šumma) and come upon him: My Isullanu, let us taste your strength (kišnjtaki). Put out your hand (qƗtka) and touch our vulva (¨urdatni).” Ibid. 344. Gen 39:7: “After a time his master’s wife cast her eyes upon Joseph and said, ‘Lie with me’ ” (ğĕćġČ ĚĘČĐĀēć ċĐėĐęĀġć ČĐėĊćĀġĠć ćĠġČ ċēćċ ĔĐğĈĊċ ğĎć ĐċĐČ Đĕę ċĈĒĠ). 345. Paul, “Euphemistically ‘Speaking’,” 200. 346. A sekretu is designated as “a woman of high rank, possibly cloistered,” or, alternatively, “a woman of the palace household, court lady,” CAD, 15:215–16. 347. As explained in Section 3.3.4, “ġĕČĐ ġČĕ: The Death Penalty in the Covenant Code.” 348. “If anyone insults his father or his mother, he shall be put to death: he has insulted his mother and his father, his blood-guilt is upon him.” 349. In Deut 21:18–21, “the wayward and de¿ant son” was sentenced to death by stoning. 350. D. Marcus, “Juvenile Delinquency in the Bible and the Ancient Near East,” JANES 13 (1981): 31–62 (45). 1

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interpretation is supported by Joseph Blenkinsopp, commenting on the Aqhat text from Ugarit, where Daniel laments the lack of a son to perform ¿lial duties and where “the most important is to set up the stelae of his ancestral spirits and to free his spirit from the underworld (cf. 2 Sam 18:18).”351 Blenkinsopp adds: The postmortem honoring of parents is therefore essential for the survival of the kinship group on its own land in its totality. Failure to perform this duty will result, by virtue of lex talionis, in being subject to the same fate, namely, to be without rest among one’s own or, worse, to lie unburied. This is what I take to be the meaning of the threat addressed to the abusive son that “your lamp will go out in utter darkness” (Proverbs 20:20).352

The biblical traditions are thus, with regard to the punishment of children, entirely different to their Babylonian precursors. In LH 192, punishment for the denial of the identity of one’s adopted parents will cost a child their tongue, albeit the dictum is restricted to children of palace staff and temple personnel. This ideological corrective indicates that such expressions of parental ingratitude challenge the hierarchical authority of both society and the king, and therefore cannot go unpunished among those employed in his service. This law (and LH 193) are examples of a punishment imposed on the offending organ, as the power of speech will physically cut out from the child who has verbally rejected his adopted parents, where the objective was as much a punishment of the child, as it was to prescribe any violation of the normative authority of parents, speci¿cally here, those in the service of the king. Similarly in LH 193, if a child of palace or temple staff repudiates and thereby fails to recognize their adopted parents in preference of his/her biological father, it will cost them an eye. Such instrumental punishments are explained by David Marcus as follows: “the penalty is another typical mirror one. The eye is considered the guilty party because it was with the eye that the adoptee looked for, and found, his natural father’s house,”353 a consequence explicit in Prov 30:17: “The eye that mocks a father and disdains the homage due to a mother; the ravens of the brook shall gouge it out; young eagles will 351. J. Blenkinsopp, “The Jewish Family in First Temple Israel,” in Families in Ancient Israel (ed. L. G. Perdue and J. Blenkinsopp; Louisville: John Knox, 1997), 48–103 (71); see especially 98–99. 352. Ibid., 71. The signi¿cance of this observation will be recalled in the discussion of “Instrumental, ReÀective and Symbolic Talion,” in Section 3.6.3, “ĊĐ ġĎġ ĊĐ: ‘A Hand for A Hand,’ or His Name and His Seed?” 353. Marcus, “Juvenile Delinquency,” 37–38. Marcus lists the various cases where the adopted child fails to maintain the parent and is accordingly disinherited. 1

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devour it.” Marcus identi¿es similar (reÀective talionic) punishments in an Old Babylonian pedagogic, school text, as follows: Ana Itti£u 7, iii 23–33: If a son says to his father “you are not my father,” he (the father) may shave him (ugallabšu), may put the slave mark upon him (abbuttum išakkansu) and sell him (ana kaspim inamdinš). If a son says to his mother “you are not my mother,” they shall shave off half his head (mutassu ugallabšu), lead him round the city (Ɨlum usa¨¨arnjšu) and put him out of the house (u ina bƯtim ušešÑnj).354

In this vein the rebellious son is cast out of his parental home and sold into slavery, as a direct response to his challenge of their authority over him. The child who has rejected his parents, is himself rejected by them.355 Yet the eye as a target of punishment is also an organ which attracts considerable attention (if injured) in the ancient Near Eastern law collections. In terms of status-related penalties, damages to the eye constitute a signi¿cant personal injury in Hammurabi’s code (LH 196– 199), where injury to the eye of awƯlu ranks highest, followed by that of the commoner (muškenu), and then the awƯlu’s slave: LH 196

If an awƯlu should blind the eye of another awƯlu, they shall blind his eye.

LH 198

If he should blind the eye of a commoner or break the bone of a commoner, he shall weigh and deliver 60 shekels of silver.

LH 199

If he should blind the eye of an awƯlu’s slave or break the bone of an awƯlu’s slave he shall weigh and deliver one half of his value (in silver).

As noted previously, the Covenant Code provisions incorporate compensation for physical injuries incurred by the adult Israelite,356 and his

354. Ibid., 39. Marcus also notes “the difference in punishment for denying the mother. In this case he is ceremoniously led around the city before being disinherited.” This is discussed in relation to comparative punishments recorded at Ugarit (ca. fourteenth century BCE), which instruct disinheritance for children who treat their widowed mother with contempt. See also Joseph Fleishman, “Continuity and Change in Some Provisions of the Code of Hammurabi’s Family Law,” in Sefati et al., eds., An Experienced Scribe, 480–97 (491–93). 355. Further Sumerian examples of the dissolution of the adoptive tie are provided in S. M. Paul, “Adoption Formulae: A Study of Cuneiform and Biblical Legal Clauses,” Maarav 2 (1979–80): 173–95 (180). 356. Exod 21:12–14 and 18–19, whose status in the Covenant Code corresponds to that of the awƯlu in Hammurabi’s laws. 1

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legal dependants, that is, for the loss of life of the unborn child,357 physical injury to the pregnant wife (Exod 21:23–25), and the slave injured by his own master (Exod 21:20–21 and 26–27). An earlier NeoSumerian text is particularly interesting, in the case of an escaped slave (who had presumably been recaptured) and had his eye put out, after which he was forced to take an oath that if he Àed a second time he would be killed.358 This highlights the virtual reverse-logic in the Covenant Code, where the wrongfully injured slave is given freedom from his master (Exod 21:26–27). Thus having aligned themselves with members of the awƯlu class, it appears that the Israelites then ameliorated the terms for their slaves to accommodate the Priestly concern for “the stranger who resides with you and shall be to you as one of your citizens.”359 Material property calculations were again emphasized in the laws governing a surgeon’s liability, where the penalty was determined by the status of the injured party. Here the eye of the awƯlu will cost the surgeon his hand, and with it his livelihood; the eye of the muškenu is assessed at half his “going rate,” which is presumably calculated in relation to his comparative worth as a slave: LH 218

If a physician performs major surgery with a bronze lancet upon an awƯlu and thus causes the awƯlu’s death, or opens the awƯlu’s temple with a bronze lancet and thus blinds the awƯlu’s eye, they shall cut off his hand.

LH 219

If a physician performs major surgery with a bronze lancet upon a slave of a commoner and thus causes the slave’s death, he shall replace the slave with a slave of comparable value.

LH 220

If he opens his (the commoner’s slave’s) temple with a bronze lancet and thus blinds his eye, he shall weigh and deliver silver equal to half his value.

What is interesting here is that in the earlier Laws of Eshnunna (and similarly in Hittite law) there is no recourse to physical mutilation of the offender (i.e. corporal punishment is not prescribed), and where 357. As I have suggested is the case in Exod 21:22. 358. See D. C. Snell, Flight and Freedom in the Ancient Near East (CHANE 8; Leiden: Brill, 2001), 51. Snell’s transcription and translation is as follows: “Gu-ù-gu ir Ur-dNun-gal-ka ba-an-da-zਠmu-dab 5. igi-ni in-gar: PN, slave of PN ran away from him and was taken; he put out his eye” (175). 359. Lev 19:34 continues: “you shall love him as you love yourself, for you were strangers in the land of Egypt: I the Lord am your God.” This supports Jackson’s assertion that “Israel’s particular experience is to be taken as a paradigm for its own treatment of the other,” Jackson, “Talion and Purity,” 122.

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injury to the eye is valued variously from 10 shekels (for a slave) to between 20 and 60 shekels (for the awƯlum), depending on the status of the victim: HL 7–8

Blinding of eye or knocking out a tooth

20 shekels of silver for a free man 10 shekels of silver for a slave

LE 42

Injury to an awƯlum’s eye

60 shekels of silver

One additional talionic “an eye for an eye” consequence may be suggested in the account of Samson’s uncontrollable temper, whose blinding could have equally been understood as punishment for his negligent leadership.360 This is evocative of Herodotus’ account of Euenius’ blinding by the citizens of Apollonia, when he (i.e. Euenius) fell asleep while he was meant to be guarding Apollo’s Àock of sheep, as the Àock was then savaged by wolves. Nicholas Vlahogiannis suggests that this is a classic “example of the state punishing a culprit–victim to deÀect feared divine punishment of the community as a whole.”361 This rationalization is understood also by Zechariah: “Oh the worthless shepherd who abandons the Àock! Let a sword descend upon his arm and upon his right eye! His arm shall shrivel up; his right eye shall go blind” (Zech 11:17). This ideological context was inextricably bound with the shame and humiliation of defeat, where “violently altering the bodies of one’s enemies was not an act of sadistic aggression in ancient Israel but was in fact one that functioned in certain striking and important ways.”362 In this respect, “shaming made it possible to dominate and control defeated warriors because shame was restrictive and psychologically repressive.”363 This is apparent in the case of the blinding of Zedekiah “(which took place in Riblah, not Jerusalem [2 Kings xxv 5–7; Jer. xxxix 5–7, lii 9–11]) but stems from the fact that the prince covers his face, whether in disgrace or to conceal his identity.”364 Here Yael Shemesh observes ¿rst, “the motif of not seeing runs through the entire prophecy (and) seems to be a punishment for the nation’s blindness,” and secondly, 360. In Judg 16:4–22 it was his unrestrained lust which was presented as the key to his downfall, in his desire for Delilah and her allegiance to the Philistines. 361. Vlahogiannis, “Disabling Bodies,” 32. 362. Lemos, “Shame and Mutilation,” 225. Lyn Bechtel’s account of “The Formal Sanction of Political Shaming” in comparative biblical and Neo-Assyrian ideology is also highly informative. See L. Bechtel, “Shame as a Sanction of Social Control in Biblical Israel: Judicial, Political and Social Shaming,” JSOT 49 (1991): 47–76 (63–70). 363. Ibid., 64. 364. Shemesh, “Punishment of the Offending Organ,” 354.

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“Zedekiah—the prince of the people—pays for the people’s theological and metaphorical blindness with the loss of his own sight.”365 Her comments recalls Euenius’ blinding and his punishment for failing to protect his Àock, yet provides an added reason for the blinding of Samson, which would then function as a form of instrumental talion. In these examples the offending eye was either metaphorically blind (as in the case of Zedekiah and Samson) or physically closed (in the case of Euenius) and theoretically justi¿ed the punishment in each case. Questions of the competence of Moses’ leadership are equally informative, as the protest made by Dathan and Abiran reveals: “Even if you had bought us to a land Àowing with milk and honey, and given us possession of ¿elds and vineyards, should you gouge out those men’s eyes? We will not come.”366 The threat is best understood in relation to the use of mutilation in warfare, as Todd Lemos explains: It is by now clear that negotiations of power and status lie at the heart of mutilation’s ef¿cacy. Mutilation of enemies in ancient Israel functioned to shame the victim, or his community and it did this in various ways: by effecting a change of status in the victim; by transferring him or her from the status of “whole” to that of “blemished”; by associating them with a sub-status group, namely women, or animals; and lastly, by signaling the newly subjected status of the victim and/or their community.367

This is explicit also in 1 Sam 11:1–2, where a no less generous offer is issued to the surrendering men of Jabesh-gilead, by Nahash the Ammonite: I will make a pact with you on this condition, that everyone’s right eye be cut out I will make this a humiliation for all Israel.

ĔĒē ġğĒć Đėć ġćčĈ ĖĐĕĐ ĖĐęĀēĒ ĔĒē ğČĞėĈ ēćğĠĐĀēĒĀēę ċěğĎ ċĐġĕĠČ

On hearing of the negotiations of the elders of Jabesh-gilead, Saul provides his people with tangible “Àesh” proof of their fate if they fail to join him in battle. This graphic, visible message clearly recalls the means in which Israel’s “covenanters are symbolically equated with mutilated animals,”368 in no uncertain terms. Here it is not merely the loss of vision of the defeated men, but the fact that having had their eyes gouged, they themselves served as proof to all who saw them of the success of Nahash and humiliation of Saul, as 1 Sam 11:6–7 clari¿es: 365. Ibid., 355. 366. At Num 16:14, the JPS translation explains that “ ‘those men’ is a euphemism for ‘our’; cf. I Samuel 29:4.” 367. Lemos, “Shame and Mutilation,” 241, and Bechtel, “Shame as a Sanction,” 64. 368. Lemos, “Shame and Mutilation,” 238. 1

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When he heard these things, the spirit of God gripped Saul and his anger blazed up. He took a yoke of oxen and cut them into pieces,369 which he sent by messengers throughout the territory of Israel, with the warning, “Thus shall be done to the cattle, of anyone who does not follow Saul and Samuel into battle.370

Likewise, the felling of Goliath, his decapitation and the use of his head as a war trophy (1 Sam 17:54), together with the mutilation of the dead corpses of Saul and his three sons (1 Sam 31:8–9), indicate that the Deuteronomic Historians fully appreciated that “negotiations of power and status lie at the heart of mutilation’s ef¿cacy.”371 The execution (and impalement) of Israel’s enemies is one further manifestation of such military talionic convention, where both 2 Sam 21:6–13 (detailing the ritual act of execution of Saul’s seven sons) and Num 25:1–5 (describing the killing of the Israelite Baal Peor worshippers) illustrate an “acted out conditional curse.”372 Therefore given the explicit absence of ¿nancial penalties for eye injuries in biblical law, but also that within the available biblical traditions (where blinding is understood variously as a punishment for inappropriate sexual desire, for failures in national leadership, and as a consequence of parental ingratitude) it is clear that its symbolism of ĖĐę ĖĐę ġĎġ (“an eye for an eye”) was certainly no abstraction but was understood clearly as the “eye taken in retaliation,” in military talionic convention. 3.6.2. ĖĠ ġĎġ ĖĠ: Broken or Missing Teeth Having identi¿ed the concrete symbolism represented by “an eye for an eye” in biblical tradition, how are “the negotiations of power and status (that) lie at the heart of mutilation’s ef¿cacy”373 represented in the absence of a single, or broken, tooth?374 This question is necessitated also by the 369. For a discussion of the comparative expression ČĎġėĐČ ğĞĈ Ċĕĝ ĎĞĐČ (“he took a yoke of oxen and cut them into pieces”) and its relationship to ġğĒ in Gen 15 and ğġĈ in Jer 34:18, see Polzin, “HWQY! and Covenantal Institutions,” 240. 370. Recalling also the symbolism of the cut body parts of the Levite concubine in Judg 19:29–30, discussed previously in Section 3.5, “Divine Retribution and the Representation of Human Remains.” 371. According to Lemos, “even in the relatively late texts of 1 Macc 7:47 and 2 Macc 15:30–35, the display of the Seleucid general Nicanor’s body parts signals a shift in power relations, in that case involving the resistance of the Judeans against the domination of the Seleucid Greeks,” Lemos, “Shame and Mutilation,” 240–41. 372. Polzin “HWQY! and Covenantal Institutions,” 239. 373. Lemos, “Shame and Mutilation,” 240. 374. Exod 21:24 and LH 200–201 specify a tooth in the singular, ĖĠ and šinni, respectively, which suggests its generic form. 1

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fact that the ĖĠ ġĎġ ĖĠ (“tooth for tooth”) requirement (like “an eye for an eye”) was, on no occasion, subject to comparable ¿nancial damages in any biblical tradition, nor was it understood in ¿nite or strict sense terms other than in Exod 21:24, Lev 24:20 and Deut 19:21. As in the comparative assessments for the loss of an unborn foetus (in Exod 21:22–25, MAL A50-A53, LH 209, 211 and 213) protective measures were variously differentiated in ancient Near Eastern societies. As with cases of injury to the eyes, monetary compensation was the most common resolution, with the exception of ¿nite or strict sense talion attested elsewhere only in the laws of Hammurabi: LH 200

If an awƯlu should knock out the tooth of another awƯlu of his own rank, they shall knock out his own tooth.

Financial penalties were imposed clearly in the Laws of Eshnunna, Hittite law and in the code of Ur Nammu Code,375 where the rate is ¿xed at the sum of two shekels of silver per tooth.376 Jacob Finkelstein suggests that at Ur this “might well suggest that in a real life situation a pro-rata ¿ne of two shekels per tooth was a customary ¿gure that may have been imposed in actual court cases even in Mesopotamia for a long time earlier.”377 As with the injuries to the eye in LH 196, LH 200 similarly indicates that not only is the offender punished by receiving the same injury as he has inÀicted, but only when both the offender and the victim are men who are in the same hierarchical class. In additional to the requirement of ¿nancial penalties in Sumerian law from Ur, this form of restitution is witnessed also in the following provisions: LE 42

For an awƯlu injuring the tooth of an awƯlu

30 shekels of silver

LH 201 For an awƯlu injuring the tooth of a muškenu

10 shekels of silver

HL 7

For anyone injuring the eye/tooth of an awƯlu

20 shekels of silver

HL 8

For anyone injuring the eye/tooth of a slave

10 shekels of silver

Yet what these ¿gures do not explain is why an injury as minor as a broken tooth is assessed at a relatively high sum (30 shekels in Eshnunna) and also warrants this degree of attention in the minds of the 375. This collection, dated to ca. 2110 BCE, is attributed usually to King UrNamma of Ur (who reigned 2112–2095 BCE and founded the third dynasty of Ur) or to his son, Shulgi, who succeeded him and reigned from 2094–2047 BCE. 376. In Finkelstein’s translation this law is numbered LU19. J. J. Finkelstein, “The Laws of Ur Nammu,” JCS 22, nos. 3–4 (1968): 66–82 (70), whereas in Roth (LCMA, 19) it was LU22. 377. Finkelstein, “The Laws of Ur Nammu,” 77 n. 19. 1

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ancient legislators. One can readily understand the serious nature of any injury to an eye and likewise to a hand, foot or leg, which could render the victim permanently disabled and potentially unable to continue work, but how does a broken tooth rank in the same category, when it is far less disabling? Furthermore, in Hittite law the broken tooth quali¿es for the same amount of compensation as the blinding of an eye. Suggestively, a number of ancient Near Eastern sources do shed light on this question, particularly in an environment where physical mutilation signi¿ed the success of military power forcefully vindicated by one’s god upon the defeated enemy. With no less subtlety, it also could be used formally to reduce the status of the victim in the eyes of society, as Todd Lemos has argued, where “mutilation served to bring shame upon the victim and their community by associating the victim with a lower status group and/or by effecting an actual status change in the victim.”378 It is precisely this phenomenon of status change that is crucial in the symbolic representation of the broken tooth, as is about to be explained. In his discussion of “Legal Terminology in Psalms 3:8,” Nahum Sarna maintains that “to break the teeth is to render impotent, ineffective and powerless to do harm”:379 an interpretation which he elicits from these enigmatic imperatives in Ps 3:8: “Rise O, Lord! Deliver me. O My God, for You slap all my enemies in the face: You break the teeth of the wicked.”380 This is clearly part of a petition recited either by the commander in chief or the king, most likely on the eve of a battle, where “the invocation hardly seems to match the reality of the grim situation. Anyone surrounded by an overwhelming mass of enemy troops, and in danger of being annihilated, would surely pray for something more drastic and decisive than that the foe receive a slap on the cheek and some broken teeth.”381 In this vein the curse in Ps 58:7 is equally pertinent: “O, God, smash their teeth382 in their mouth.”383 378. Lemos, “Shame and Mutilation,” 226. 379. N. M. Sarna, “Legal Terminology in Psalms 3:8,” in Sha‘arei Talmon: Studies in the Bible, Qumran and the Ancient Near East Presented to Shemaryahu Talmon (ed. M. Fishbane et al.; Winona Lake: Eisenbrauns, 1992), 175–82 (178). 380. In relation to ġğĈĠ ĔĐęĠğ ĐėĠ (“You break the teeth of the wicked”), the use of ğĈĠ is attested also in Job 29:17: ġēČę ġČęēġĕ ċğėĠćČ (“I broke the jaw of the wrongdoer [and wrested prey from his teeth]”). 381. Sarna, “Legal Terminology,” 175. 382. The imperative ĘğĎ is used in Ps 58:7, ČĕĐěĈ ČĕĐėĠĀĘğĎ (“Smash their teeth in their mouth”), unlike Job 4:10, where ęġė is provided, ĐėĠČ ēĎĠ ēČĞČ ċĐğć ġėćĠ Čęġė ĔĐğĐěĒ (“the lion may roar, the cub may howl, but the teeth of the king of beasts are broken”).

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Sarna’s interpretation that “to break the teeth is to render impotent, ineffective and powerless to do harm,”384 is fully supported by reference to earlier cuneiform legal traditions, where Jo Ann Hackett and John Huehnergard, clarify that the injunction specifying the breaking of teeth is a common talionic threat evoked for a breach of contract, in the following sources: In view of the fact that Western Semiticisms are not uncommon in tablets from Emar, it is possible that šinnƗtƯšunu ušabbar, which corresponds to the Hebrew expression of šibbƝr šinnayim of Ps. 3:8c, is also a Western Semitic expression. Other cuneiform evidence, however, makes it more likely that both the Emar and Hebrew expressions derive from early Mesopotamian legal practice, for facial mutilation of one kind or another is attested as a breach of contract in Middle Babylonian Texts from Ur and Nuzi, in a few Old Babylonian texts, and as early as pre-Sargonic Sumerian documents.385

Among the relevant texts is a thirteenth-century BCE Akkadian will from Emar,386 which records the provisions of a testator who particularly wishes to ensure that the children of his brother, KƗpi-Dagan, do not bene¿t from his future estate. Hackett and Huehnergard note that “on the basis of similar documents from Emar and other contemporary SyroHittite sites, we expect the clause to read: šumma iraggumû (or, ša iraggum[u]) Óuppu annû ileƝšunu, “if they (or whoever) contests the will, this tablet will defeat them.”387 Instead we ¿nd in lines 20b–22, šumma iraggumû Óuppu annû šinnƗtƯšunu ušabbar, ‘if they contest, this tablet will break their teeth.”388

383. The Psalmist continues: “shatter the fangs of the lions, O Lord Let them melt, let them vanish like water; let him aim his arrows that they be cut down. Like a snail that melts away as it moves; like a woman’s still birth, may they never see the sun” (Ps 58:8–9). 384. Sarna, “Legal Terminology,” 178. 385. J. A. Hackett and J. Huehnergard, “On Breaking Teeth,” HTR 77, no. 3/4 (1984): 259–75 (265). 386. This is modern-day Meskeneh, approximately 100 km east-southest of Aleppo. 387. Such expressions are clari¿ed in Dominique Charpin’s discussion of the recourse to written proof in a trial. Charpin explains that tablets were considered “not inscribed pieces of clay but living beings, in a civilization where the line between the living and the inanimate was not conceived in the same way as it is in ours,” D. Charpin, Writing, Law, and Kingship in Old Babylonian Mesopotamia (trans. J. M. Todd; Chicago: University of Chicago Press, 2010), 130. 388. Hackett and Huehnergard, “On Breaking Teeth,” 264–65 1

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In addition, three late Kassite-period contracts from Ur that relate to the sale of children by their parents are also comparable.389 All three of these texts mention one particular penalty incurred by anyone who breaches the terms of the contract: the offender will be punished by the ¿xing of a copper nail into their mouth, although it is not clear whether the nail is intended to pierce the offender’s lips, teeth or both.390 In the third contract, punishment for non-compliance is as follows: “They will stuff (?) 1 mina of (goat) hair (and) 1 mina of wool into his mouth; they will ¿x a copper nail in his mouth; they will pour (?) 1 mina of (hot) tin (and) 1 mina of (hot) lead in his mouth.”391 Likewise, eleven further contracts from ancient Nuzi392 stipulate that, in addition to the payment of a ¿ne, the claimant who disputes this contractual sale will have a copper nail driven into their mouth.393 Still earlier attestations of facial mutilation prescribed as a consequence of breach of contract are found in three pre-Sargonic (twenty-fourthcentury) Sumerian legal documents found at Girsu (modern-day Telloh), which provide “the origin of the penalty clauses which stipulate the use of a nail or tablet as an implement to alter the physiognomy of someone guilty of breach of contract.”394 The exact translation of the Sumerian clauses is still debated, with the relevant “nail” into the “mouth/teeth”395 389. The three contracts are broadly contemporary with the above text from Emar. 390. The ¿rst text from Ur (mentioned above) is similar to the second: “And they will have no appeal; at any time in the future, whoever among the brothers, children, family or kin claims the boy, they will deal with him (the claimant) according to the order of the king, Adad-£uma-iddina; they will ¿x a copper nail in his mouth if the boy is claimed, PN1, PN2 (and) PN3, will pay PN4, 2 boys for each boy.” Translated in Hackett and Huehnergard, “On Breaking Teeth,” 265–66. 391. Ibid., 266: “the ¿xing of the only one of several abuses to the offender’s mouth.”. 392. Located in northern Iraq, Nuzi (modern-day Yorgan Tepe) which has yielded an archive of over 3,500 administrative documents that provide extensive information, particularly for the Hurrian period of the mid-second millennium. 393. In this instance the verb is ma¨Ɨ‰u, meaning “to strike, drive,” rather than retû, “to ¿x or attach.” The text in question reads as follows: mannu ša ibbalakkatu 1 man kaspa 1 mana ¨urƗÑa išaqqal; u sikkatu ša erî ina pƯšu ima¨¨aÑu, “whoever contests will pay 1 mina of silver (and) 1 mina of gold; and they will drive a copper nail into his mouth,” Hackett and Huehnergard, “On Breaking Teeth,” 267. See also M. Held, “M¨Ñ/M¨š in Ugaritic and Other Semitic Languages: A Study in Comparative Lexicography,” JAOS 79, no. 3 (1959): 169–76. 394. Hackett and Huehnergard, “On Breaking Teeth,” 270–71. 395. Both meanings of the sign KA-KA (as either ka-ka, “mouth,” or zú-zú, “teeth”) appear to be equally plausible. Ibid., 269. 1

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formulae identical in the ¿rst two texts. Hackett and Huehnergard explain the legal context of these mutilations as a form of instrumental talion, as follows: Such punishment was, at the outset, a kind of talion. The clay nails on which the house purchase records were written were driven into, or attached to the house in question as tokens of the sale agreement. The clauses under consideration here are eviction clauses: should it prove to be the case that the seller was not the rightful owner, that is, the house belonged to a third party, the seller would be guilty of misrepresentation in the sale, and the clay nail, as a record of the sale, was to be driven into or break the mouth or the teeth through which the false claim of ownership had issued. The resultant mutilation would, of course, mark the seller as a scofÀaw.396

In the same period, a Sumerian slave purchase record (preserved on a tablet) contains the following penalty clause, which again quali¿es the punishment of the convicted fraudster as one of instrumental talion: “If she (the seller) detains (the slave), (or) raises the claim, then she puts deceit in her mouth/teeth (and) a wooden nail will be driven into her mouth/teeth.”397 Clearly here “the penalty was still talionic, to be sure, in that it was still the mouth uttering a claim that was to be mutilated, but the instrument of punishment could now simply be any nail, rather than the contract itself.”398 None of these sources presuppose that the biblical Psalmists were aware of the precise signi¿cance of these mouth/teethbreaking prescriptions, but “the rather obvious original connection between crime and punishment, evident even in the pre-Sargonic texts, makes such expressions prime fodder for poetic reuse.”399 Similarly, while the later rabbinic sages may not necessarily have understood the inherent symbolism of this action, they still accepted the notion that breaking the teeth of a thief was an appropriate thing to do.400 “And so did Ben Bag say: A person should not (re-steal) what belongs to him from the house of a thief, lest he too should appear a thief. Rather he should break his (the thief’s) teeth and seize what is his from his (the thief’s) hand.”401 This is also the opinion of the sages in the Midrash, 396. Ibid., 271. 397. Ibid., 271–72. 398. Ibid., 272. 399. Ibid., 274. 400. It is possible that this could have been recommended primarily as a means of self-help for the victim: “Rather he should break his teeth and seize what is his from his hand” (ČĊĐĕ ćēĠ ġć ćĐĝČĕČ ČĐėĐĠ ġć ğĈĠĕ ćēć). 401. This translation of Tosefta Nezekin, Bava Qama 10 is provided by Hackett and Huehnergard, “On Breaking Teeth,” 275. 1

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who ask: “Can you conceive that if a man who borrows and does not pay, the creditor should not collect the debt even if he has to break the man’s teeth in doing so?”402 This is not a case of projecting later rabbinic sources onto biblical law, and then insisting that the original intent of the formulation ĖĠ ġĎġ ĖĠ (“a tooth for a tooth”) conformed exclusively to this projection, since the non-legal biblical traditions themselves (i.e. Pss 3:8; 58:7–9; Job 27:19) independently evidenced this usage. An even more intriguing tradition is attested in the service recited at the Passover seder,403 which provides a striking example of reÀective talion. The imperative ČĐėĠ ġć ċċĞċ, literally “blunt his teeth” is advocated in a response to a son’s dismissal, not of his parent’s authority but of God’s redemption of the Israelites from Egypt. This disciplinary measure appears in an imagined dialogue between parents and children,404 as follows: The wicked child: what does he say? “What is this service to you?”405 “To you—but not to me!” Since he disassociates himself from the group he denies a basic principle [of faith] You should indeed blunt his teeth406 and say to him, “It is because of this, which God did for me, when I left Egypt For me, but not for you, if you had been there, you would have not been saved

ğĕČć ćČċ ċĕ ęĠğ ĔĒē ġćčċ ċĊČĈęċ ċĕ Čē ćēČ ĔĒē Čĕĝę ġć ćĐĝČċĠ ĐěēČ ēēĒċ Ėĕ ğĞęĈ ğěĒ ČĐėĠ ġć ċċĞċ ċġć ĚćČ Čē ğĕćČ Đē ċČċĐ ċĠę ċč ğČĈęĈ ĔĐğĝĕĕ ĐġćĝĈ Čē ćēČ Đē ĔĠ ċĐċ Čēć ēćĉė ċĐċ ćē

402. Translation of ċĈğ ğĈĊĕĈ Bamidbar Rabba 9:6, from Midrash Rabbah: Numbers, vol. 1 (trans. J. J. Slotski; London: Soncino, 1939), 242. 403. The earliest manuscript records for midrashic traditions recorded in the ĎĘě ēĠ ċĊĉċ are not witnessed before the eleventh–twelfth century CE. 404. The signi¿cance of the redemption from slavery in Egypt is encouraged in the dialogue between parents and children in Exod 12:25–26; 13:8, 14, and Deut 6:20–21. 405. Exod 12:26 is translated by the NJPS as follows: “And when your children ask you, ‘What do you mean by this rite?’ ” (ċĊČĈęċ ċĕ ĔĒĐėĈ ĔĒĐēć ČğĕćĐĀĐĒ ċĐċČ ĔĒē ġćčċ). 406. A literal translation is carefully avoided in the more politically correct contemporary editions, where ČĐėĠ ġć ċċĞċ is rendered “You should also give him a blunt answer”; J. Sacks, ĎĘě ēĠ ċĊĉċ The Chief Rabbi’s Haggadah: Hebrew and English Text with New Essays and Commentary (London: Harper Collins, 2003), 19. 1

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In his discussion of the signi¿cance of “Dislodging the Wicked Son’s Teeth,”407 Jeffrey Cohen comments on the theological predicament that this advice generates: we may ask how such an uncharacteristic reaction can possibly be recommended in the context of a passage which sets out to include the rasha! among the “four sons” who are all deserving of the Torah’s sympathetic attention and for all of whom we declare: barukh ha-makom, “Blessed be God.” As a supplementary, we query the phrase veaf attah,408 “And even you (may dislodge his teeth),” which seems to call for some explanation.409

Cohen explains the need to de¿ne the “rebellious son’s notional status a little more precisely,”410 noting that in Egypt, if this child had in fact disassociated himself from the Hebrew slaves, he would not have been able to assume the status of a free-born national.411 In addition to the classi¿cations of status there is the additional differentiation of ethnicity, where Cohen continues: “the only other category of slave our tradition recognizes is that of a Canaanite slave. Ethnically this is most appropriate. Since the Hebrews in Egypt hailed from Canaan, one who divests himself of his exclusive Hebrew identity is left with mere nationality derived from his ‘country of origin’.”412 These are entirely appropriate observations, yet am I not at all convinced by the suggestion that the purpose of blunting this rebellious child’s tooth is so “that son’s wickedness be purged so that he may also be redeemed to join his people’s destiny,”413 when the death penalty for the insolent child is both consistent and unequivocal in all biblical sources (Exod 21:15, 17; Lev 20:9; Deut 21:18–21). Rather, it seems that this tradition ČĐėĠ ġć ċċĞċ ċġć ĚćČ (“you should indeed blunt his teeth”) recalls the imperatives examined earlier in Ps 3:8: “Rise O, Lord! Deliver me. O My God, for You slap all my enemies in the face: You break the teeth of the wicked.” Certainly by the standards adduced in pre-Sargonic Sumerian contracts (likewise also in Emar, Ur and Nuzi) 407. J. Cohen, “Dislodging the Wicked Son’s Teeth,” in Moments of Insight: Biblical and Contemporary Perspectives (London: Valentine Mitchell, 1989), 69–72. 408. The asseverative particle Ěć is also rendered “surely” or “even.” 409. Cohen, “Dislodging,” 70. 410. Ibid., 71. 411. Here the focus upon rank and hierarchy, which characterized the Babylonian differentiated assessments for personal injury, prevails likewise in midrashic memory. 412. Cohen, “Dislodging,” 71. 413. Ibid.

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this son’s statement quali¿ed for that copper nail driven into his mouth or tooth, by virtue of his rejecting the memory of God’s delivery of the Israelites from Egypt. In this context, the blunting of the ingrate’s tooth quali¿es as a form of reÀective talion (which in Ps 3:8 was unleashed upon Israel’s enemies) is extended in the Passover Haggadah to her ungrateful sons. Could it be that this midrashic imperative was made in response to the Deuteronomic refrain “thus you will sweep out evil from your midst,”414 but as a less drastic alternative to the death penalty for the “wayward and de¿ant son” of Deut 21:18? The process of reÀective talion here operates in a similar way to the punishment in the Old Babylonian Ana Itti£u text (discussed in the previous section), where if a son says to his father “ ‘you are not my father,’ he [the father] may shave him may put the slave mark upon him and sell him.”415 The punishment of this wicked son is likewise activated by his formal disassociation from his ancestral legacy: “‘What is this service to you’—to you—but not to him!” This recalls also Joseph Fleishman’s comments on the general contintuity between Sumerian and Old Babylonian law, where he concludes that statements such as: “ ‘You are not my father’ and ‘you are not my mother’ are verba solemnia that de¿ne denial of parental authority, whereby the one who repudiates his parents receives a dual punishment: cancellation of his right to inherit his father’s property and cancellation of his status as a free man.”416 This is akin also to the verbal declaration required in LH 192, for punishing the ingratitude of the rebellious child.417 In all of these theoretical cases, the reÀective talion is characterized by the concomitant rejection of the offending child so that his punishment corresponds to his crime, and it is in this light that the parent of the wicked son is advised: ġć ċċĞċ ċġć ČĐėĠ (“you must blunt his teeth”). Akin to this process is the equally viable understanding of ĖĠ ġĎġ ĖĠ “a tooth for a tooth” as a variable form of instrumental talion, based on the cases of breach of contract, misrepresentation and fraud, in which the 414. Deut 18:21 states: “Thereupon the men of his town shall stone him to death. Thus you will sweep out evil from your midst: all Israel will hear and be afraid.” 415. Ana Itti£u 7, iii 23–33, published in Marcus, “Juvenile Delinquency,” 39. 416. Fleishman, “Continuity and Change,” 492. 417. LH 192 notes that if the child of (i.e. reared by) a courtier (mƗr girseqîm) or the child of (i.e. reared by) a sekretu should say to the father who raised him or two the mother who raised him, “You are not my father” or “You are not my mother,” they shall cut out his tongue. To what extent this applies also to the provision in LH 282 is not clear: “If a slave should declare to his master, ‘You are not my master,’ he [the master] shall bring charge and proof against him that he is indeed his slave, and his master shall cut off his ear.” 1

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sinning mouth was visibly punished. In ancient Sumer this was achieved by the threat of ¿xing a copper nail in the mouth or tooth of anyone issuing a false claim of ownership, as attested in various testimonies preserved in Emar, from the Babylonian Kassite dynasty and from Nuzi. This process is likewise evident in the purchase record of a Sumerian slave woman, who would be appropriately punished in the event that “she put deceit in her mouth.” In the same vein in Hammurabi’s code, the child who has verbally denied the legitimacy of his or her adopted parent will have his or her tongue torn out. Further Sumerian and Old Babylonian conventions indicate that the punishment of the rebellious child could also be expressed as a form of reÀective talion: having rejected the authority of one’s father or mother, that parent could then shave, brand and sell their child into slavery, effectively disowning him or paying him back in kind. The tradition recalled in the rabbinic imperative ČĐėĠ ġć ċċĞċ (“blunt his teeth!”) during the Passover seder, speci¿cally evokes this context, where the wicked son’s formal disassociation by means of his declaration: “ ‘What is this service to you’ To you—but not to me!,” constitutes the verba solemnia that justify his exclusion from the shared destiny of Israel. As a form of reÀective talion, it is quite remarkable that the imperative ċċĞċ ČĐėĠ ġć, “Blunt his teeth!,” is preserved in rabbinic midrash, more than a millennium after its earliest conceptual expression in Sumerian and Old Babylonian texts. Returning now to the formulation ĖĠ ġĎġ ĖĠ (“a tooth for a tooth”), therefore, there is no suggestion of ¿nite or strict sense talion in the biblical or post-biblical narratives, nor in later rabbinic sources. Rather, the Israelite conception here remained more in keeping with the Sumerian, Old Babylonian traditions, and was rooted in her own perception of instrumental and reÀective talion only. As was the case with ĖĐę ġĎġ ĖĐę, “an eye for an eye,” this is apparent even though we have no other biblical or rabbinic sources which attested the use of the word ĖĠ (“a tooth”) together with the preposition ġĎġ (here translated as “for”). Nor does this discussion indicate that any of the facial mutilations implied actually took place in early antiquity. 3.6.3. ĊĐ ġĎġ ĊĐ: “A Hand for a Hand,” or His Name and His Seed? In terms of the formulation ĊĐ ġĎġ ĊĐ, “a hand for a hand,” I propose that this prescription was conceived primarily as a form of symbolic talion, where the ĊĐ (normally translated “hand”) represented the “name” of the male Israelite but concomitantly also his “seed.” With regard to punishments involving hands, once again, no ¿nite or strict sense examples of talion are attested in any available sources, other than Exod 21:24, 1

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Lev 24:20 and Deut 19:21; nor is there any indication in biblical tradition that comparable damages for injury to the hands were acquitted by a ¿nancial penalty, despite the preference for this resolution in codi¿ed provisions and available case law from Babylon, as follows: LE 44

Breaking an awƯlum’s hand

30 shekels of silver

HL 11–12

Breaking an arm or a leg

20 shekels of silver for a free man 10 shekels of silver for a slave

Yet in terms mutilations of the hands as a punishment in Babylonian law, instrumental talion (i.e. as injury of the offending organ) was manifest in a variety of circumstances: in relation to a physically rebellious child, to a surgeon operating with a bronze lancet, to the fraudulent barber removing the slave hair-lock, and the grain/seed thief in these provisions: LH 195

If a child should strike his father, they shall cut off his hand.

LH 218

If a physician performs major surgery with a bronze lancet upon an awƯlu and thus causes the awƯlu’s death, or opens the awƯlu’s temple with a bronze lancet and thus blinds the awƯlu’s eye, they shall cut off his hand.

LH 226

If a barber shaves off the slave hairlock of a slave not belonging to him without the consent of the slave’s owner, they shall cut off that barber’s hand.

LH 253

If a man hires another man to care for his ¿eld, that is, he entrusts to him the stored grain, hands over to him the care of his cattle, and contracts with him for the cultivation of the ¿eld—if that man steals the seed of fodder and it is then discovered in his possession, they shall cut off his hand.

Also in view of the ¿nancial penalties speci¿ed in LE 44 and HL 11–12, three further Neo-Babylonian documents, relating to the criminal activities of a certain businessman (Marduk-rƝmani) involved in the Ebabbar temple in Sippar,418 demonstrate how, in fact, corporal punishments were commuted to a monetary ¿ne. In relation to these records, Martha Roth explains: The seven persons were therefore entitled to inÀict speci¿c and limited physical mutilations upon his person: each was entitled to cut off his hand, each was entitled to deliver three blows, and two (possibly all seven) were entitled to payment for the seized animals. Obviously Marduk-rƝmani had 418. There is no indication of Marduk-rƝmani’s crime, other than his theft of livestock.

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The Body as Property only two hands to lose, making any literal execution of the mutilations problematic. But in any event the physical punishments were commuted to monetary ones: each person was awarded (or accepted) 140 shekels instead of exercising the right to amputate a hand and 9 shekels instead of inÀicting a further three stripes; the compensation for the seized animals was set at 60 shekels.419

Roth concludes that the amputation and beatings were “almost certainly punishments imposed by a court authority,”420 based also on the fact that “a total of 3ѿ minas of white silver, with one eighth alloy per shekel, of nuhhutu-quality which is in lieu of cutting off the hand of MardukrƝmani and [as compensation for] Itti-Nusku-ƯnƗja’s stolen property,”421 was speci¿ed. This case inevitably recalls the baraita attributed to R. Simon bar Yochai, who rationalized the interpretation of ĖĐę ġĎġ ĖĐę (“an eye for an eye”) as primarily a pecuniary requirement, with the following argument: “What then would be the case if a blind man put out the eye of another man, or where a cripple cut the hand of another, or where a lame person broke the leg of another,”422 where in such (highly exceptional, if not wholly impossible) cases, the inherent notion of retributive equivalence would be denied. Yet the same objection can be applied reciprocally, to refute the interpretation that the principle denoted monetary compensation, for what if the assailant was already impoverished (or enslaved) and did not have the ¿nancial means to acquit his crime? According to R. Simon: “You must therefore admit that it is only where it is possible [to resort to the law of retaliation] that it is resorted to, whereas where it is impossible, it is impossible: the offender will have to be released.”423 So in the absence of any suggestion that ¿nancial compensation for injuries to the hands was available in biblical tradition, how therefore was ĊĐ ġĎġ ĊĐ, “hand for hand,” conceived as a form of symbolic talion in biblical memory?

419. M. T. Roth, “On Amputation, Beating and Illegal Seizure,” in Studies Presented to Robert D. Biggs from the Workshop of the Chicago Assyrian Dictionary (ed. M. T. Roth et al.; Assyriological Studies 27; Chicago: The Oriental Institute, 2007), 207–21 (209). 420. Ibid., 210. 421. Ibid., 213. 422. b. B. Qam. 84a: “What could be done in the case of a person afÀicted with a fatal, organic disease killing a healthy person?” 423. b. B. Qam. 84a. If the talionic penalty was understood to be exclusively a pecuniary one, then this would inevitably mean that a convicted slave (or any impoverished person) could re-offend, and cause injury repeatedly with impunity. 1

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Mutilation of the hands was a common military convention, as Jeffrey Niehaus explains: Their authority as suzerains included the right to mutilate conquered foe. The purpose of this was primarily to strike fear into their hearts, so that they would not even think of rebellion. Assyrian kings piled heaps of enemies’ hands and heads before the foe’s city gates.424 They impaled their enemies and skinned them alive. Tukulti-Ninurta I even boasts that he burned a whole city of rebellious vassals alive.425

In this context, we ¿nd acts of postmortem retributive mutilations426 where enemy corpses had body parts either removed or dis¿gured. This phenomenon is particularly evident in the reliefs decorating the mortuary temple of Ramses III, in Medinet Habu,427 where one striking image is particularly relevant: “Ramses III is standing on a balcony, with his chariot waiting behind him, addressing his of¿cials, who make respectful reply. Egyptian of¿cers lead up Libyan captives, while scribes record the numbers in three piles of hands and two of phalli.”428 In addition, the ĊĐ (“hand”) was also used as a euphemism for male genitalia (usually the penis) since there was no semantic equivalent for these parts.429 Furthermore, no euphemism appears with any obvious consistency, in that no single body part is identi¿ed with any speci¿c genital area on a regular basis in either P or D. Moreover, euphemisms for female genitalia appear 424. This is depicted particularly in the reliefs of Ashurnasirpal II and Tiglathpilesar III. See J. Niehaus, “The Warrior and His God: The Covenant Foundation of History and Historiography,” in Faith, Tradition and History: Old Testament Historiography in Its Near Eastern Context (ed. A. R. Millard, J. Hoffmeier and D. W. Baker; Winona Lake: Eisenbrauns, 1994), 299–312 (304 n. 28). 425. Ibid., 304. 426. These, of course, cannot be compared to other forms of corporal punishment previously discussed. For an overview of Assyrian post-mortem retributive mutilations, see also Lemos, “Shame and Mutilation,” 225–26. I am indebted to Deborah Rooke for suggesting this term to me. 427. Ramses III successfully stopped the Libyans and Sea Peoples (including the Philistines) from invading Egypt and thus commissioned reliefs of his military victory to be engraved on the walls of this temple in ca. 1175 BCE. In particular, see The Historical Records of Ramses III: The Texts in Medinet Habu, vol. 2 (trans. with explanatory notes by W. F. Edgerton and J. A. Wilson; Chicago: University of Chicago Press, 1936), plates 22, 23, 42 and 75. 428. The Historical Records of Ramses III, 13, plates 22. The ¿gures counted in each pile are as follows: phalli = 12,535 and 12,860; hands = 12,535, 12,532 and 12,660. 429. As in Isa 57:8, 10; Song 5:4; 1QS 7:13–14 (prohibiting male exposure of a “hand”). For clari¿cation of this symbolism in its earlier Northwest Semitic context, see M. Pope, “Euphemism and Dysphemism in the Bible,” ABD 1:720–25 (720–21). 1

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only very rarely, in comparison to those used for the male sexual organs. The following image of the decapitated hands, presented to the Pharaoh, is reproduced with permission of Deborah Kaiser, from her photographs taken at Medinet Habu in March 2008:

Figure 4. Section of Relief from Ramses III Mortuary Temple at Medinat Habu. Courtesy of Deborah Kaiser.

In addition to postmortem retributive mutilations soldiers were ¿nancially remunerated on the basis of how many men they killed in battle and would formally present the hands of these corpses to the Pharaoh. In autobiographies that were left in their tombs, they would claim to have participated in a certain campaign and presented various numbers of hands. In return they were often given slaves or a medal of honour.430 In 430. The cliff-tomb inscription of Ahmose, son of Ebana, a naval of¿cer who served in the wars of the Eighteenth Dynasty under Ahmose I, Amenhotep I and Thutmose I, records his various military conquests and the royal rewards he accordingly received: “Then I took captive there two living men and three hands. One presented me with gold in double measure [besides] giving me two female slaves. His majesty sailed downstream, his heart joyous with the might of victory, [for] he 1

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these cases, no differentiation is made based on the gender of the victim, only in the fact of their being the enemy, although the tacit assumption is that this was carried out primarily on men. Nor are there any prohibitions restricting the Israelites from carrying out such activities, as the account the killing of Rechab and Baanah in 2 Sam 4:11–12 indicates: “ ‘I will certainly avenge his blood on you,431 and I will rid the earth of you.’ David gave orders to the young men who killed them; they cut off their hands and feet and hung them up by the pool in Hebron.”432 Hands feature conspicuously also in the language of military victories, where the substantial use of the expression ĊĐĈ Ėġė (“to give into the hand”) occurs, as (for example) in Josh 8:1. 433 Lauren Monroe explains this idiom in light of earlier interpreters who have identi¿ed this “as a juridical formula in which the legal right to land is handed over by Yahweh to Israel,”434 speci¿cally where the Hebrew Ėġė functions in the same way as the Akkadian nadanu(m), meaning “to give.”435 Among its other uses, nadanu appears in Mesopotamian land grant texts to describe the bequeathing of agricultural land or sometimes entire villages and their populations to an individual, often by a king.436 These notions underscore the Covenant Code requirement of ĊĐ ġĎġ ĊĐ (“a hand for had seized Southerners and Northerners,” lines 18–19, as per ARE, 8. I am indebted to Paula Jervis for bringing this evidence to my attention, as well as providing a full transcription and translation of the hieroglyphs in this inscription. 431. This assertion evokes the role of the “blood redeemer,” or ĔĊċ ēćĉ: “I will certainly avenge his blood on you” (ĔĒĊĐĕ ČĕĊĀġć ĠĞĈć ćČēċ ċġęČ). 432. As noted in the previous discussion of Judg 1:7 (Section 3.4, “ReÀective Talion and the Biblical ğĠćĒ Formulation”), the captured, Canaanite king AdoniBezek declared when the Israelites cut off his thumbs and toes: “Seventy kings, with thumbs and toes cut off, used to pick up scraps under my table, as I have done, so God has requited me.” 433. Josh 8:1 states: “See, I will deliver the king of Ai, his people, his city and his land into your hands.” Cf. Gen 19:14: “And blessed be God Most High, who has delivered your foes into your hand.” 434. L. A. S. Monroe, “Israelite, Moabite and Sabatean War-ÑƝrem Traditions and the Forging of National Identity: Reconsidering the Sabatean Text RES 3945 in Light of Biblical and Moabite Evidence,” VT 57 (2007): 318–41 (323–24). 435. I have suggested that the requirement in LH 231 (ana bƝl bƯtim inaddin), meaning “he shall give to the householder,” con¿rms that the verb inaddin/ nadanu(m), “to give,” is the etymological equivalent of Ėġė in the Covenant Code; see Exod 21:22, ĔĐēēěĈ ĖġėČ, “the payment to be based on reckoning”; and 21:23, Ġěė ġĎġ Ġěė ċġġėČ, “the penalty shall be life for life.” 436. See further J. C. Green¿eld, “Naš NadƗnu and Its Congeners,” in Essays on the Ancient Near East: Studies in Memory of Jacob Joel Finkelstein (ed. M. de J. Ellis; Connecticut Academy of Arts and Sciences Memoirs 19; Hamden: Archon, 1977), 87–91. 1

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hand”), where the symbolic representation of a hand was intimately connected to the desire also for both reproductive continuity and thereby hereditary succession. In this context, the identi¿cation of one’s legitimate male successor, to ensure the formal transfer of assets from father to his chosen son was crucial: a context which explains the signi¿cance of an assault upon the pregnant Israelite wife (Exod 21:22–24), where the material calculation of the loss of her unborn child, her own life and her physical injury were formulated. Such calculations impact primarily on the property and estate of the adult, Israelite male, as was crucial also in the patriarchal narratives, where Abraham is promised, “I will make your name great” (đĕĠ ċēĊĉćČ, Gen 12:2), and that “to your offspring I assign this land” (Ėġć đęğčē ġćčċ ĜğćċĀġć, Gen 15:18).437 But other than the obvious desire for land and progeny, what actual bene¿t was conferred by making Abraham’s name great? And why did this have to be separately speci¿ed, in addition to the possession of land? These questions are informed by Sarah Japhet’s interpretation of ĔĠČ ĊĐ (“the hand and the name”) in Isa 56:5, who suggests as follows: Since the “name” is the means by which the social unit is de¿ned and through which its status is determined, it applies directly to the participation of units designated by “names” in the common landed property.438 In the biblical texts this essential connection is illustrated in two different contexts: in cases in which the “name” and thereby property rights are endangered, and in the context of settlement.439

Here Isa 56:4–5 states: “To the eunuchs who keep my Sabbaths, who choose the things that please me and hold fast my covenant, I will give in my house and within my walls a monument and a name,440 better than sons and daughters; I will give them an everlasting name that shall not 437. Cf., e.g., đĐğĎć đęčēČ, “to you and your offspring [literally ‘seeds’],” in Gen 17:20. 438. See also Num 26:55: “The land, moreover, is to be apportioned by lot; and the allotment shall be made according to the listing of their ancestral tribes.” Here, ĔġĈćĀġČďĕ ġČĕĠē (“the listing of their ancestral tribes”) is literally “the names” of the tribes of their fathers. 439. S. Japhet, “ĔĠČ ĊĐ (Isa. 56:5): A Different Proposal,” Maarav 8 (1992): 69– 80 (76). Cf. Ruth 4:10: “I have also acquired Ruth the Moabite, the wife of Mahlon, to be my wife, to maintain the dead man’s name on his inheritance, in order that the name of the dead may not be cut off from his kindred”; cf. also Num 27:4, “Let not our father’s name be lost to his clan just because he had no son” (i.e. ġğĒĐĀćēČ ġġĕċĀĔĠ). It is also evident from the statements that the land was divided ğěĘĕĈ ġČĕĠ, that is, “according to the number of names,” in Num 1:2, 18, 20, etc. 440. Translated here as “a monument and a name,” ĔĠČ ĊĐ literally means “a hand and a name.” 1

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be cut off.” Japhet considers this to be “an outright reversal of the Deuteronomic decree,”441 in Deut 23:1, where the law speci¿es: “No one whose testes are crushed or whose member is cut off shall be admitted into the congregation of the Lord.” Yet in addition to the Deuteronomic prohibition, this prophetic memory of the “everlasting name that shall not be cut off”442 also evokes the danger of ġğĒ (cut or excision): the precise threat articulated so forcefully in the Priestly demand for circumcision. It is a danger realized evidently in 2 Sam 18:18, where Absalom sets up a pillar in the Kidron Valley, saying: “I have no son to keep my name in remembrance (ğČĈęĈ ĐĕĠ ğĐĒčċ); it is called Absalom’s monument to this day.”443 In relation to Isa 56:3–5, Joseph Blenkinsopp accordingly compares the Psalmist’s reference (not to the threat of ġğĒ, or divine excision), but of literally being severed by the hand, as Čğčĉė đĊĐĕ, “cut off from your [divine] care,”444 as Ps 88:6 indicates.445 This symbolism is explicit also in non-biblical sources, particularly in iconographic images of the body, where Thomas Staubli and Sylvia Schroer, explain that “when the ‘hand’ failed or was violently mutilated, a ‘hand’ in the sense of a monument could replace the endurance of one’s name in posterity.”446 In the epigraphic record, two Aramaic tomb inscriptions, found in Nerab, near Aleppo, dated to the seventh century BCE, and published by Menachem Kister,447 con¿rm this cultural reality in Levantine antiquity: 441. Japhet, “ĔĠČ ĊĐ (Isa. 56:5),” 70. 442. Cf. ġğĒĐ Čē ğĠć ČēĀĖġć ĔēČę ĔĠ in Isa 56:6. 443. ĔČēĠĈć ĊĐ, Absalom’s monument, is literally “Absolom’s hand.” This recalls also 2 Sam 14:4–27, where the woman of Tekoa begs David to restrain the vengence for her dead son, slain by his brother, saying in 2 Sam 14:7: “Thus they would quench up the last ember remaining to me and leave my husband without name or remnant (ġĐğćĠČ ĔĠ) upon the earth.” The use of ġĐğćĠ recalls also the familial or blood relationship, described in Lev 18:6: “None of you shall come near anyone of his own Àesh (ČğĠĈ ğćĠĀēĒ) to uncover nakedness.” 444. Blenkinsopp, “The Jewish Family,” 81. 445. Pss 88:5–6: “I am numbered with those who go down to the Pit; I am a helpless man abandoned among the dead, like bodies lying in the grave of whom You are mindful no more, and who are cut off from your care.” 446. T. Staubli and S. Schroer, Body Symbolism in the Bible (trans. L. M. Maloney; Collegeville: Liturgical, 2001), 167. 447. M. Kister, “Some Blessing and Curse Formulae in Biblical Northwest Semitic Inscriptions, Post Biblical Literature and Late Antiquity,” in Hamlet on a Hill: Semitic and Greek Studies Presented to Professor T. Muraoka on the Occasion of His Sixty-Fifth Birthday (ed. M. F. J. Baastern and W. T. van Peursen; Leuven: Peeters, 2003), 313–32. 1

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The Body as Property Whoever you are who remove (?) this image and grave (?) from its place May Sahar and Shamash and Nikkal and Nusk eliminate your name (đĕĠ ČĎ) and your place out of life And may they cause your seed to perish (đęğč ČĊĈćĐČ), But if you protect this image and grave, in the future years yours will be protected.

In the second inscription (Nerab ii) the Aramaic ĊĈćġ ćġğĎćČ, “may his future (i.e. his posterity) perish,”448 parallels the invocation to ČĊĈćĐČ đęğč, “cause your seed to perish,” in the ¿rst. Kister further compares the intent of the expression đğĠćČ đĕĠ (meaning literally, “your name I will preserve”) in keeping with both ĔĠČ ĊĐ (“a monument and a name”) in Isa 56:5 and also to the Wisdom of Solomon (3:4), where it denoted receipt of a divine hereditary portion: “And the eunuch who has not acted unlawfully…will receive exquisite grace (in return for) his steadfastness and a more pleasing portion (ÁÂŢÉÇË) in the temple of the Lord.”449 This symbolism prevails even further into the Second Temple period, where is explicit also in the extant Greek version of the Aramaic Levi Document, which states, “And blessing shall be pronounced by your seed upon the earth and your seed shall be entered in the book of the memorial of life for all eternity. And your name and the name of your seed shall not be annihilated for eternity,”450 and also at Qumran, as follows: ċĒĕĠ ĊĈćČ [Ĝğćċ ē]ČĒĕ ċĒğĒčČ, “and your name and memory will vanish from the whole [earth].”451 Clearly such memorials were integral to the development of Deuteronomic name theology, where ĔĠ ČĕĠ ĖĒĠē and the Akkadian šuma šakƗnu, both meaning “to place the name,” were terminologically related, which allows comparison, once again, with the stipulations in Esarhaddon’s Succession Treaty. In the following extract (lines 249–58), Esarhaddon dictates that in the event of the assassination of Assurbanipal (after his own death) his vassal will be oath-bound to destroy the usurper to the Assyrian throne, as follows: 448. “May Sahar and Nikkal and Nusk cause him an evil death and may his future (i.e. his posterity) perish” (Kister, “Some Blessing and Curse Formulae,” 313). Here Kister suggests and that “basically the word aharit, like the word shem, has two meanings: it can refer either to the life of the person himself, or to his survival by his offspring” (ibid., 318). 449. Ibid., 316. Further midrashic sources corroborate this interpretation. 450. Green¿eld, Stone and Eshel, The Aramaic Levi Document, 291. 451. 4Q218, line 27. See Martínez and Tigchelar, The Dead Sea Scrolls Study Edition, 243, where ċĒğĒčČ is translated as “[and your] memory,” unlike 4Q221, line 4, where đğĒč is translated as “your seed”: Ĝğćċ ēČĒĕ đğĒč [Č] đĕĠ ĊĈć[Č...] “And your name and seed will vanish from the whole earth,” Martínez and Tigchelaar, The Dead Sea Scrolls Study Edition, 243. 1

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šum-ma at-tu-nu ina IGI MÍ.a-ri-ti

250

šá maš-šur-PAB-AŠ MAN KURaš-šur.KI ù-DAM maš-šur-DÙ-A DUMUMAN GAL-u šá É-UŠ-ti la ta-da-gal a-ni ki-ma it-tab-ši la tu-rab-ba-a-ni GIŠ.GU. ZA šá KUR-aš-šur KI la tu-šá-aÑ-bat-a-n-ni e-pi-šá-nu-ti šá bar-ti la ta-Ñabbat-a-ni-ni la-ta-du-ka-a-ni MU-šú NUMENšu-nu ina KUR la tu-¨al-laq-qa-a-ni dame ku-um da-me la ta-ta-ba-ka-a-ni gi-im-lu šá maš-šur-DÙ-A DUMU-MAN GAL-u šá É-UŠ-te

251  252 253 254 255 256 257 258

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You shall wait for a woman pregnant by Esarhaddon, King of Assyria, (or) for the wife of Assurbanipal the great crown prince designate and after (a son) is born bring him up and set him on the throne of Assyria Seize and slay the perpetrators of the rebellion destroy their name and seed from the land, and by shedding blood for blood,452 avenge Ashurbanipal the great crown prince designate.453

For this invocation of the sovereign curse, the cuneiform sign MU was used for the Akkadian šumu (meaning “name”) and NUMEN, represented zaru (meaning “seed” or “offspring”), as was also the case on this one of the three seals found on the treaty, where Sennacherib’s seal states: “I Sennacherib, King of [Assyria], the prince who reveres thee. He who erases (my) written name or alters this, your seal of destinies, erase his name and seed from the land.”454 It is this political arena which provides signi¿cant terminological overlap between the physical injury of the hand, occurring in the context of military talionic convention, also as a form of post-mortem retributive mutilations, but equally as a form of symbolic talion where the hand, indicative of a monument (one’s memory, and “seed” (posterity) is targeted.

452. The expression dƗme kum dame, “blood for blood,” recalls the case in which “the murderer agrees to surrender a slave-girl ‘instead of the blood’ (Ass. kum dame),” Driver and Miles, The Assyrian Laws, 36. 453. Parpola and Watanabe, Neo-Assyrian Treaties, 38–39. 454. The translation of the seals is provided only in Donald Wiseman’s “The Vassal Treaties of Esarhaddon,” 15 (lines 12–15), where Wiseman further explained: “Esarhaddon was then using the seal of his father and predecessor, Sennacherib (705–681 BCE). This practice shows that the Assyrian monarchs used the seals of their forebears for matters requiring the weight of precedence, much as had the earlier rulers of Hittite and Syrian states.” 1

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This symbolism of ĊĐ ġĎġ ĊĐ (“a hand for hand”) representing memory and posterity does not preclude understanding hand mutilations additionally as a form of instrumental talion (or a punishment of the offending organ),455 as conceived in 1 Kgs 13:4. Here the prophet denounced the king’s altar at Bethel, upon which the narrator announces: “Jeroboam stretched out his hand from the altar saying “Seize him!” But the hand that he stretched out against him withered.” To conclude this analysis, therefore, it is evident that the formulation ĊĐ ġĎġ ĊĐ (“a hand for hand”) was understood in prophetic and historiographical traditions (Isa 56:5 and 2 Sam 18:18) as a symbolic form of talion, where the ĊĐ (“hand”) represented both the “name” (ancestral memory) and “seed” (continued progeny) of the male Israelite. This symbolism recalled the physical presence of post-mortem retributive mutilations, speci¿cally the hand amputations of corpses: a reality clearly known also to the Deuteronomistic historians. The additional interpretation of ĊĐ ġĎġ ĊĐ (“a hand for hand”) as indicative of instrumental talion (as suggested by 1 Kgs 13:4), is all the more apparent, with reference to Deut 25:11–12, as this next discussion will con¿rm. 3.6.4. ċěĒĀġć ċġĝĞČ: “You shall cut off her palm”456 If Deut 25:11–12 constitutes an extension (or variation of) the talionic principle,457 what then did the requirement ċěĒĀġć ċġĝĞČ, “you shall cut 455. The custom of Athens, Cyprus and Thebes was also to cut off the right hand from the body of a suicide and to bury it separately. Josephus indicated that this was considered equivalent to removing the offending limb, i.e. a form of instrumental talion: “In other nations the law requires that a suicide’s right hand, with which he made war on himself, should be cut off, holding that, as the body was unnaturally severed from the soul, the hand should be severed from the body,” F. Josephus, The Jewish War, vol. 2 (trans. H. St J. Thackeray; London, 1927), III 8, 5, p. 683, cited in Shemesh, “Punishment of the Offending Organ,” 352. 456. I am grateful for the feedback provided at the BAJS Summer Conference at Wolfson College, Cambridge, where I ¿rst delivered some of material appearing in the present chapter as a paper entitled “Deuteronomy 25:11–12: Clean Cut or Jagged Edge?” (July 11, 2006). Insights from Michael Berkowitz, Martin Goodman, Jared Greenblatt, David Instone-Brewer and Willem Smelik have been added to this section throughout. The paper was later published as S. Jacobs, “Instrumental Talion in Deuteronomic Law,” ZABR 16 (2010): 263–78. 457. As Peter Craigie explains: “the punishment prescribed for the violation of this law is an extension of the lex talionis; for obvious reasons, given the different sexes of the persons involved in the incident, the lex talionis could not be applied literally,” Peter Craigie, The Book of Deuteronomy (Grand Rapids: Eerdmans, 1976), 316, and also as M. Cortez, “The Law on Violent Intervention: Deuteronomy 25:11– 12 Revisited,” JSOT 30 (2006): 431–47. 1

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off her palm,”458 represent? This law is also unique, in that it is the sole biblical provision which prescribes corporal punishment, determined by the gender and marital status of the offender. Embedded in Deuteronomic family law, it is unequivocal in its demand for the mutilation of the guilty woman: If two men get into a ¿ght with each other and the wife of one comes up to save her husband from his antagonist, and puts out her hand and by seizes him by his genitals. You shall cut off her hand,459 show no pity.

ČĐĎćČ ĠĐć ČĊĎĐ ĔĐĠėć ČĝėĐĀĐĒ ĊĎćċ ġĠć ċĈğĞČ ČċĒĕ ĊĐĕ ċĠĐćĀġć ēĐĝĎē ċĊĐ ċĎēĠČ ČĐĠĈĕĈ ċĞĐčĎċČ ċěĒĀġć ċġĝĞČ đėĐę ĘČĎġ ćē

Here the protasis in Deut 25:11–12, “If two men get into a ¿ght with one another,” corresponds to that appearing in the Covenant Code in Exod 21:22, ĔĐĠėć ČĝėĐĀĐĒČ, “when men ¿ght,” and where the talionic formulation also occurred.460 Yet the interpretative dif¿culties abound, as Jeffrey Tigay observes: “The punishment here seems remarkable since the woman’s act is performed with legitimate intentions.”461 Furthermore, the punishment is “out of proportion to what she has done.”462 In these circumstances the wife is also guilty—irrespective of whether or not any injury has occurred. Such “draconian severity” is interpreted by Robert Alter by explaining that any potential damage to a man’s biological reproductive capacity is of the utmost seriousness and impairs his ability to perpetuate his brother’s name (if necessitated) under the terms of Levirate marriage, whose conditions immediately preceded in Deut 25:5–10.463 His observation informs the previous discussion of ĊĐ ġĎġ ĊĐ, “a hand for hand,” as “his name or his seed,” but if so, would indicate that the requirementċěĒĀġć ċġĝĞČ, “you shall cut off her hand,” can also be understood symbolically. 458. The feminine noun ĚĒ, “hollow, or Àat of the hand, palm, sole of foot, pan,” is related to the Assyrian kappu (BDB, 496), where also kappaltu (CAD, 8:184) denotes the groin or the area between the thighs, and kappu (CAD, 8:185), the hand, arm, eyebrow, eyelid and eyelashes. 459. The ĚĒ, “palm,” is inexplicably rendered as “hand” unanimously in all the English translations. 460. “The penalty shall be life for life, eye for eye, tooth for tooth, foot for foot.” 461. J. Tigay, The JPS Torah Commentary: Deuteronomy: The Traditional Hebrew Text with New JPS Translation (Philadelphia: Jewish Publication Society, 1996), 234. Actually, the text says absolutely nothing about the woman’s intentions. 462. Ibid., 484. 463. Alter, The Five Books of Moses, 1002. This was ¿rst the suggestion of the medieval Italian commentator Rabbi Ovadia ben Jacob Sforno (1475–1550). 1

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A more sensational interpretation of this symbolism is provided by Lyle Eslinger, who argues that Deuteronomic requirement ċěĒĀġć ċġĝĞČ, “you shall cut off her hand,” indicates that a talionic punishment was incurred by the guilty woman for seizing reproductive organs of an Israelite man, where the ĚĒ, “palm,” represents a euphemism for the female labia.464 Based upon the use of đğĐĀĚĒ in Gen 32:26, 33, Eslinger further argues that a form of female circumcision or clitoridectomy was suggested, so that having grasped a male Israelite’s genitals, the guilty wife’s reproductive organs would then be maimed: Gen 32:26

When he that he had not prevailed against him, he wrenched Jacob’s hip at its socket (ČĒğĐĀđĒĈ),465 so that the socket of his hip was strained as he wrestled with him.

Gen 32:33

That is why the children of Israel to this day do not eat the thigh muscle that is on the socket of the hip (đğĐċ ĚĒĀēę), since Jacob’s hip was wrenched at the thigh muscle.

To support this reconstruction, Eslinger suggests that in Gen 32:25 the organ that is injured in the ¿ght is not the hip joint, but rather Jacob’s scrotum, since đğĐ can be used independently as a euphemism to indicate either male or female genitalia in the biblical corpus.466 In addition, the concave shape of a palm can suggest a concave organ of the body, as the female genitalia are described in Song 5:5.467 Yet the construct form đğĐĀđĒ occurs only in the above four occasions (twice each in Gen 32:26 and 32) and explicitly denotes male, not female, genitals in all four cases. Therefore, as John Elliott concludes, “although elegant, the proposal is not without problems,”468 which he explains as follows: 464. L. Eslinger, “The Case of the Immodest Lady Wrestler in Deuteronomy XXV 11–12,” VT 31 (1981): 269–81. 465. Cf. ĈĞęĐ đğĐĀđĒ in Gen 32:26. 466. The đğĐ “thigh,” as a euphemism for the male reproductive organs, is attested only in Gen 46:26, where “all the persons belonging to Jacob who came to Egypt—his own issue (ČĒğĐ ĐćĝĐ), aside from the wives of Jacob’s sons—all these persons numbered 66.” đğĐ denotes female genitals only in Num 5:21, in the curse of the suspected adulteress: “May the Lord make you a curse and an imprecation among your people, as the Lord causes your thigh to sag and your belly to distend.” Here, the reference evokes a prolapsed womb. 467. Song 5:5: “I arose to my beloved and my hands dripped with myrrh. My ¿ngers with liquid myrrh upon the handles of the bolt (ēČęėĕċ ġČěĒ). 468. J. H. Elliott, “Deuteronomy—Shameful Encroachment on Shameful Parts: Deuteronomy 25:11–12 and Biblical Euphemism,” in Ancient Israel: The Old Testament in Its Social Context (ed. P. Esler; Minneapolis: Fortress, 2005), 161–76 (173). 1

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x

167

First: The đĒ would need to be readily identi¿able as the female vulva, with none of the obvious literary allusions, which were built into the text from the Song of Songs. Since đĒ is attested 189 times in the Hebrew Bible, and other than in Song 5:5 and Num 6:21, none of the other 187 occurrences are euphemisms for female genitalia, this is problematic.469 Second: “An ability on the part of the audience to appreciate the correspondence of ĔĐĠĈĕ and đĒ as different euphemisms for the same object (genitals), but of different gendered persons.”470

Eslinger also claims that the Deuteronomic objective in this law is to deter the Israelites from following the behaviour of their ancestors: The details of vv.11–12 make it clear that the Deuteronomist aimed the law squarely at Jacob’s underhand action. The woman’s husband is losing the contest, as was Jacob. The woman grabs the man’s private parts in order to deliver her husband (le-hassil et-isha) as Jacob’s action resulted in the delivery of himself.471

Yet no “underhand action” is apparent, given that in this scenario Jacob appears to be the victim and not the perpetrator of the attack.472 Moreover, the two protagonists involved were none other than Jacob and an unidenti¿ed angel, with no intervening female party, let alone a wife. If Eslinger’s reconstruction was correct, then surely only the Israelite men would be most at risk of emulating the patriarch, rather than an intervening wife. At best, this resolution is far-fetched, or as Shalom Paul concludes, it remains “one of the very dubious interpretations”473 of this law. 469. The majority of euphemisms (including “the hand,” and “the palm,” denote the male sexual organs: ğĠĈ (“Àesh”) occurs in Gen 17:11–14, 23–25; Exod 28:42; Lev 15:2–18; Ezek 16:26; 23:20; 44:7, 9; ĔĐĝēĎ/ĔĐėġĕ (“loins”) in Gen 35:11; Judg 8:30; 1 Kgs 8:19; 12:10; Job 40:16; 2 Chr 6:9; 10:10; ĔĐēĉğ (“legs or feet”) in Exod 4:25; Ruth 3:4, 7; 2 Sam 11:8; Prov 19:2; Isa 6:2; ċĒěĠ (“Àuid duct, or spout”) in Deut 23:2; ĖğĞ (“horn”) in Ps 92:11; and ĐēĒ (“vessel”) in 1 Sam 21:5 and 4Q416. The exception is the use of ċČğę (“nakedness”) in Gen 9:22–23; Exod 28:42; Lev 18:6–17; 20:17; Ezek 16:8, 36; 23:18. 470. Elliott, “Deuteronomy–Shameful Encroachment,” 173. This correspondence appears all the more unlikely in view of the LXX’s translation of ĔĐĠĈĕ as implicitly male testicles, as shall shortly be con¿rmed. 471. Eslinger, “The Case of the Immodest Lady Wrestler,” 280. 472. Gen 32:23–24: “That same night he arose, and taking his two wives, his two maidservants, and his eleven children, he crossed the ford of the Jabbok. After taking them across the stream, he sent across all his possessions. Jacob was left alone. And a man wrestled with him until the break of dawn.” 473. Paul, “Biblical Analogues to Middle Assyrian Law,” 336. 1

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Another unlikely scenario is presented by Jerome Walsh, who suggests that ċěĒĀġć ċġĝĞČ (“you shall cut off her palm”) should correctly be translated as “you shall shave off her groin.”474 His interpretation assumes, ¿rst, that the đĒ primarily represents the female groin, as suggested by Song 5:5, and, second, that the verb ĜĝĞ is translated in accordance with its use in Jer 9:25; 25:23, and 49:32, where it appears in the construct form as ċćě ĐĝČĝĞ (“those with shaven temples”). Walsh asserts that “elsewhere in the Hebrew Bible, shaving, including genital shaving occurs in contexts of humiliation,”475 but also that genital shaving was both a widespread and clearly attested ancient Israelite practice. This interpretation has been rejected, once again by John Elliott, who argues that “both assumptions, however, lack probative and lexical support,”476 given that genital shaving was neither widespread, nor commonplace, in the biblical corpus, where only the shaving of the hair of the head, as a form of humiliation or as a rite of mourning, was attested.477 Genital shaving is mentioned just once in the Hebrew Bible in Isa 7:20, where it is threatened only as a consequence of disobedience by the prophet: “In that day, my Lord will cut away with the razor hired beyond the Euphrates—with the King of Assyria—ĔĐēĉğċ ğęĠČ ĠćğċĀġć the hair of the head and the hair of the legs and it shall clip off the beard as well.” Here, the euphemism ĔĐēĉğċ ğęĠ (“hair of the feet”) for the pubic hair,478 is a hapax legomenon that proves nothing about Deuteronomic corporal punishment, nor does it demonstrate that genital shaving was a widespread phenomenon in biblical tradition.479 There is also no indication 474. J. Walsh, “You Shall Cut Off Her…Palm? A Re-Examination of Deuteronomy 25:11–12,” JSS 49 (2004): 47–58 (47). 475. Ibid., 56. 476. Elliott, “Deuteronomy—Shameful Encroachment,” 174. 477. The shaving of a woman’s head is attested only in Deut 21:12–13 with regard to the “beautiful captive woman,” whom the male Israelite sees in battle and desires as a wife. See further Jacobs, “Terms of Endearment?, 237–57. For an account of the relevant shaving rites, see S. Olyan, “What Do Shaving Rites Accomplish and What Do They Signify in Biblical Ritual Texts?,” JBL 117 (1998): 611–22. 478. See Pope, “Euphemism and Dysphemism,” 721. 479. The account in 2 Sam 10:4–5 is not relevant because it is reasonably evident that half the men’s beards were clipped; no euphemism for male pubic hair was intended, as indicated by 2 Sam 10:6, where David gave orders to the men: “Stop in Jericho until your beards grow back; and then you can return.” Nor does LH 127 further Walsh’s argument, because this provision does not clarify whether the guilty man’s head or genitals were shaved: “If a man causes a ¿nger to be pointed in accusation against an ugbabtu or against a man’s wife but cannot bring proof, they shall Àog that man before the judges and they shall shave off half his hair.” 1

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that genital shaving was carried out on women as a form of public humiliation, under any circumstances, in biblical tradition.480 The sole incidence of female genital shaving occurs in the Sumerian Text CBS10467, where it is explicit as the punishment for adultery and precedes sentencing of the guilty woman to prostitution. The wife in Deut 25:11–12 is neither convicted of adultery, nor is she sentenced to prostitution. Accordingly, the claim that “you shall shave off the hair of her groin…is philologically and lexically superior to the standard translations”481 is entirely unsupported. A consensus of opinion does, however, exist between both the medieval and modern commentators regarding the nature of the woman’s crime, understanding the woman’s offence to be that of Àagrant immodesty and shameful behaviour.482 Yet, nowhere in Deuteronomic legislation, or even in the Pentateuch, is an Israelite wife commanded to behave modestly. The prescription “to walk humbly with your God” that prescribes modest behaviour is addressed to all Israelites and is not exclusive to married women; it is only attested in Mic 6:8. Moreover, the laws of modest behaviour and dress derived from this source only begin to be codi¿ed formally, much later in Tannaitic literature (redacted from ca. 70 BCE–200 CE). Moreover, if it was simply a case that the wife’s immodesty was inappropriate, why was her punishment so exceptionally brutal? A critical reading of the Deuteronomic laws indicates, however, that it is not Àagrant immodesty, nor shameful behaviour, that is the problem, but rather that the injury to the male reproductive organs is what constitutes the greater danger. This is supported by Deut 23:1, which also states: “No one whose testicles are crushed or whose penis is cut off shall be admitted into the assembly of the Lord.”483 In addition, 480. The examples provided by Walsh (“You Shall Cut Off,” 57) do not demonstrate this: Isa 3:17 (for example) states “My Lord will bare the pates of the daughters of Zion; the Lord will uncover their hair.” Here uncovering the women’s head of hair was speci¿ed as a humiliation (as understood in m. B. Qam. 8:6). Neither does the nakedness of Isaiah in 20:4, nor the nakedness of the harlot in Ezek 16:37, demonstrate that forced genital shaving was a recognized shaming convention for women. 481. Ibid., 57–58. 482. See Tigay, The JPS Torah Commentary: Deuteronomy, 230, and J. R. Ziskind, “When Two Men Fight: Legal Implication of Brawling in the Ancient Near East,” Revue Internationale des Droits dans l’Antique 44 (1997): 13–42 (35). 483. Deut 23:1–3: “No man shall marry his father’s former wife, so as to remove his father’s garment. No one whose testes are crushed or whose member is cut off shall be admitted into the congregation of the Lord. No one misbegotten shall be admitted into the congregation of the Lord, none of his descendants, even in the tenth generation, shall be admitted into the congregation of the Lord.” 1

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there is the Priestly legislation which disquali¿es any Levite from service who has crushed testicles.484 Such concerns are echoed in the writings of Seneca, the Elder, likewise: A priest whose body is not whole is a thing to be shunned, like a bad omen. Sacri¿cial victims are considered blameworthy for this [i.e. having defective bodies]; how much more so a priest? After a man has become a priest, he must be watched even more carefully for disability; for priests do not become maimed unless the gods are angry.485

The violent mutilation speci¿ed in 25:11–12 was certainly the inevitable response to this potential danger, and, more than any other factor previously considered, indicates the heinous nature of the woman’s crime: the injury she has inÀicted has the potential to disqualify the Israelite male from formal worship. Is this not the Deuteronomist’s greatest fear? Robert Alter argues that this was indeed the case, based upon the Deuteronomic description of the male genitals as ČĐĠĈĕĈ—a hapax legomenon from the root ĠČĈ meaning, literally, “in his shames.”486 Similar discretion is maintained in the modern Hertz edition of the Pentateuch, which renders these as “his secrets,”487 while the LXX, hinting a little more suggestively at the male testicles, prefers “his twins.” In the Aramaic translations, likewise Onqelos renders ČĐĠĈĕ (“genitals”) as the “the place of shame,” as follows:488

484. Lev 21:17–20 states: “No man of your offspring throughout the ages who has a defect shall be quali¿ed to offer the food of his God. No one at all who has a defect shall be quali¿ed: no man who is blind or lame, or has a limb too short or too long, no man who has a broken leg or a broken arm; or who is hunchback, or a dwarf, or has a growth in his eye, or who has a boil-scar or scurvy, or crushed testes,” 485. Seneca the Elder, Controversiae 4.2, trans. in J. Q. Whitman, “At the Origins of Law and the State: Supervision of Violence, Mutilation of Bodies or Setting of Prices,” Chicago-Kent Law Review 71 (1985): 41–84 (77). 486. For a survey of the Latin (Vulgate ca. 390), German, Spanish and French translations, see further J. H. Elliott, “Deuteronomy 25:11–12 LXX: No Tweaking the Twins: More on a Biblical Euphemism and Its Translation,” in Kontexte der Schrift Band 2. Kultur, Politik, Religion, Sprache—Text. Für Wolfgang Stegemann zum 60 (ed. C. Strecker; Stuttgart: Kohlhammer, 2005), 323–41 (326–27). 487. J. H. Hertz, The Pentateuch and Haftorahs: Hebrew Text, English Translation and Commentary (2d ed.; London: Soncino, 2001), 856. 488. Here quoting Targum Onkelos to Deuteronomy: An English Translation of the Text with Analysis and Commentary Based on A. Sperber’s Edition by Israel Drazin (New York: Ktav, 1982), 224–25. 1

3. Talion in Biblical Law and Narrative If two men get into a quarrel with each other, a man and his fellow, and the wife of one comes up to save her husband from the hand of his antagonist and puts out her hand and seized him by the place of his shame,489 you shall cut off her hand, show no pity.

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ćĊĎĒ ĖĐğĈĉ ĖČĝėĐ Đğć ĐċČĎćČ ğĈĉ ĊĎ ġġć ĈğĞġġČ ċēęĈ ġĐ ćĈčĠē ĐċČĎĕ ĊĐĕ ċĊĐ ďĠČġČ ċġġċĈ ġĐĈĈ ĚĞġġČ ċĊĐ ġĐ ĜČĞġČ đėĐę ĘČĎġ ćē

For the Aramaic audience in late antiquity, the woman’s punishment had changed: ċĊĐ ġĐ ĜČĞġČ, “you shall cut off her hand,” has replaced the Deuteronomic preference ċěĒĀġć ċġĝĞČ, “you shall cut off her palm.”490 This is particularly intriguing, given that “nearly all Targumic deviations are meaningful and not just accidental.”491 Cutting the woman’s palm would presumably have included the amputation of her ¿ngers, but not necessarily her thumb, whereas cutting off her full hand would certainly remove the thumb: a preference fully clari¿ed in the Targum PseudoJonathan: ċĊĐ ġĘĐě ġĐ ĖČęďĞġČ (“you shall cut off her hand up to the wrist”). Even more curious is the fact that not only Onqelos but also Codex Neo¿ti and Pseudo-Jonathan fail to interpret the this Deuteronomic law in keeping with established halakhic practice found in the Sifre and Bava Kama 28a, which specify that any guilty woman in this case incurred only a monetary ¿ne. In view of this collective, interpretative preference, what then would be the impact of this woman’s amputation in the Deuteronomic worldview? “Hands are a key factor in what it means to be human, because they interact with the intelligence in probing, manipulating and transforming matter for cultural ends. The hands are also the most expressive and versatile members of the body for symbolic and ritual gestures and tasks, whether social, religious or magical. Hands give and receive, grasp 489. Both Codex Neo¿ti and the Fragmentary Targums from the Cairo Geniza witness the more explicit term, ĐĐėďČĞ (“genitalia”) similar to the Palestinian Fragmentary Targum, which provides: ċĐĕďĐĞ ġĐĈĈ ĚĞġġČ ċĊĐ ďČĠěġ, “she stretches out her hand and seizes his membrum virile.” See M. Jastrow, A Dictionary of the Targumim, the Talmud Babli and Yerushalmi and the Midrashic Literature (New York: Judaica, 1996), 1550. 490. The interchangeable use of ĚĒ, “hollow, or Àat of the hand or palm, sole of foot or pan” (see BDB, 496), with the ĊĐ, “hand”, is evident in Gen 40:11. Here, the cup-bearer relates his dream to Joseph in prison: “Pharaoh’s cup was in my hand, and I took the grapes, pressed them into Pharaoh’s cup and placed the cup in Pharaoh’s hand” (ĖġćČ ċęğě ĘČĒĀēć Ĕġć ďĎĠćČ ĔĐĈėęċĀġć ĎĞćČ ĐĊĐĈ ċęğě ĘČĒČ ċęğě ĚĒĀēę ĘČĒċĀġć). 491. Drazin, Targum Onkelos to Deuteronomy, 1. 1

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and relinquish; they strike, protect, punish and caress.”492 As such, the punishment speci¿ed in Deut 25:11–12 assumed far greater signi¿cance than that associated exclusively with its representation as a form of instrumental talion.493 As “a key factor in what it means to be human,”494 hands were crucial for a woman’s cooking, cleaning, nursing and feeding of children, serving as “symbols associated with femininity: objects which recall her domestic duties frequently carry overtones of her fertility and sexual drives.”495 Such objects, including the spindle and the distaff,496 could not be utilized by a woman with only one hand, where additional “overtones of [her] fertility and sexual drives”497 would have further implications on a symbolic level. In this context the absence of the woman’s hand would provide a potent indication that also on a symbolic level her sexual and reproductive powers concomitantly damaged. While this does corroborate the suggestion that Deut 25:11–12 was conceived as a talionic punishment (both in instrumental and symbolic terms), this association does not verify that either female genital mutilation, or the shaving of the woman’s groin, was intended. MAL Tablet A, Law 8, column i, lines 78–87 reads: šum-ma SAL i-na Ña-al-te iš-ka ša LÚ ta-a¨-te-e-pi I ú-ba-an-ša i-na-ki-su ù šum-ma LÚ A.ZU ur-tak-ki-is-ma iš-ku ša-ni-tu il-te-ša –ma ta-at-ta-al-pa-at [e]-ri-im-ma rar-ti-i-ši [ù] lu- ù i-na Ña-al-te [iš]-ka ša-ni-ta ta¨-te-pi [ ]-ša ki-ka-lu-un i-na-pu-lu

If a woman has crushed a man’s testicles in an affray one of her ¿ngers shall be cut off and if, although a physician has bound it up the second testicle is affected with it and becomes inÀamed or if she has crushed the second testicle in the affray both her [ ] shall be torn out.498

492. F. Mathewson Denny, “Hands,” in Encyclopedia of Religious Rites, Rituals and Festivals, vol. 6 (ed. F. A. Salmone; New York: Routledge, 2004), 3769–71 (3770). 493. That is, as a punishment of the woman’s offending organ. 494. Mathewson Denny, “Hands,” 3770. 495. H. A. Hoffner “Symbols of Masculinity and Femininity: Their Use in Ancient Near Eastern Sympathetic Magic Rituals,” JBL 85 (1966): 326–34 (327). 496. The use of the distaff was extolled particularly in Prov 31:19 (and opposingly denigrated in 2 Sam 3:29). 497. Hoffner, “Symbols of Masculinity,” 327. 498. Driver and Miles (The Assyrian Laws, §8, line 87, 384–85) reconstruct the missing signs as follows: [di-da]-ša ki-ka-lu-un i-na-pu-lu, “both her [nipples (?)] shall be torn out.” 1

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In light of this discussion, what other ancient sources inform this mutilation of the intervening wife’s palm in Deut 25:11–12? From the Middle Assyrian code, comparison of the provision in A8 is valuable, although the crucial signs (in line 87) are broken, as indicated from this image of the relevant section of the tablet.

Figure 5. Section of Tablet A of the Middle Assyrian Law Code. Copyright of Bildagentur für Kunst, Kultur und Geschichte at the Vorderasiatisches Museum, SMB and Olaf M.Teßmer.

Two further points need to be clari¿ed before we examine the various reconstructions of the broken signs in line 87. First, the Assyrian dialect of Akkadian is virtually syllabic and witnesses few determinatives or logograms. In the above text the determinative SAL is used to qualify the woman. This is the sign based on the original Sumerian pictogram of the vulva (a triangle within a square) that denotes any female irrespective of age or status,499 which indicates here that no differentiation was made in either the status of the offender (i.e. if she was a slave, or a daughter of an awƯlu or muškƝnu). Nor was her relationship to the man she was defending an issue (i.e. he may have been her father, husband, son or brother, or even no relation to her at all). Secondly, in A8 the woman’s guilt depends entirely on whether permanent injury to either one or both of the man’s testicles occurs; there is no suggestion whatsoever that her inappropriate grasp was the offending crime.500 So which part of the woman’s body did the Assyrians stipulate should be torn out if both the injured man’s testicles were crushed? Reconstructions of the missing cuneiform text, starting with the least convincing, are listed ¿rst: 499. R. Labat and F. Malbran-Labat, Manuel d’ Epigraphie Akkadienne: Signes, Syllabaire, Ideogrammes (Paris: Librairie Orientaliste Paul Geuthner, 1999), 229. 500. Unlike Deut 25:11–12, where “the wife of one intervenes to rescue her husband” was liable for punishment.

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Reconstructions of MAL A8, Line 87 T. J. Meek501 Eyes M. Malul502 Eyes M. T. Roth503 Eyes or breasts G. Driver and J. Miles504 Both her (nipples?) Shalom M. Paul505 Breasts Claudio Sapporetti506 Nipples/breasts507 508 Knut Tallqvist Hands Marcus Jastrow509 The ¿ngers of both hands

Comparative Basis None speci¿ed Exod 21:23 None speci¿ed LH 194 for breasts LH 194 LH 194 None speci¿ed Deut 25:11–12 MAL A9

Among this range of options, gouging out the eyes seems to be the least likely solution, simply because it is highly questionable whether this injury was ever inÀicted on a woman in any ancient case. This punishment was known only as a form of military talionic convention (gouging only the eyes of defeated men), and also in the mishnaic justi¿cation of the blinding of Samson, where it was understood as a form of instrumental talion.510 Neither of these contexts was relevant to the 501. T. J. Meek, “The Middle Assyrian Laws,” in ANET, 180–88 (81). 502. Meir Malul reconstructs ČğĞėĐ ČĐĊĎĐ ċ[ĐėĐę ĐġĠ ġć], but acknowledges (in addition to the talionic formulation in Exod 21:22–23, Lev 24:19–20 and Deut 19:21), the relevance of Deut 25:11–12 and Judg 1:10–11, in Malul, Law Collections, 186, 503. Roth, LCMA, 156–57. 504. The reading “nipples,” proposed by Driver and Miles (The Assyrian Laws, 384–85), follows Victor Scheil, Recueil de Lois Assyriennes (Paris: Geuthner, 1921), 10, and is accepted also by Guillaume Cardascia, Les Lois assyrienne, 108, among others. 505. Paul, “Biblical Analogues to Middle Assyrian Law,” 337. 506. C. Saporetti, Le leggi medioassire (Cybernetica Mesopotamica Data Sets 2; Malibu: Undena, 1979), 33, who suggests that the injury to both the man’s testicles, with its potential to damage his reproductive abilities, necessitated a correspondingly severe mutilation of the woman: “Nella seconda parte è trattato il caso dellaperdita di ambedue I testicoli, sia che avenga in conseguenza della ferita del primo; poiché l’uomo é messo in condizioni di non potere più procreare, la donna deve subire una punizione assal più severa.” 507. Line 87 is reconstructed: “[ I (capezzzoli dei) I seni?] suo ambdue strapperano,” Saporetti, Le leggi medioassire, 33. 508. K. Tallqvist, Old Assyrian Laws (Helsingfors: Helsingfors Centraltryckeri, 1921), 13–14. 509. M. Jastrow, “An Assyrian Law Code,” JAOS 41 (1921): 1–59 (15–16). 510. See Judg 16:2. This is suggested also as an explanation for the punishment of the Sodomites in Gen 19:11 and the blinding of Zedekiah in 2 Kgs 25:7; Jer 39:7, and 52:11. 1

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woman in MAL A8. Furthermore, the market value of any blind woman would be dramatically reduced, to the extent that she would become a ¿nancial liability, in need of care and support for the rest of her life. Given the priority evident in Babylonian law for the awƯlu’s property, and in biblical law for that of the adult Israelite male, this makes gouging her eyes all the more unlikely. Likewise in the Middle Assyrian code (with the obvious exception of impalement) none of the prescribed mutilations would prevent a woman from pursuing her daily, household activities, in the long-term, once the bleeding from her wounds had stopped and she had suf¿ciently recovered from the mutilations.511 The use of the verb napƗlum in LH 194 line 87, which can mean “to hack or gouge out,”512 does not conclusively demonstrate that the body part intended was the woman’s eyes. The majority view that the woman’s breasts were the intended target is based on the punishment evident in A8, where the law states: If a man gives his son to a wet nurse and that child then dies, while in the care of the wet nurse, and the wet nurse then contracts for another child, without the knowledge of his mother and his father, they shall charge and convict her, and because she contracted for another child without the consent of the father and mother, they shall cut off her breast.513

In this context Shalom Paul argues that the severity of the mutilation was because the woman had destroyed the man’s procreative ability and therefore “she, in turn, is made to suffer in retaliation the mutilation of her sexual organs.”514 Yet this reconstruction does not provide a talionic punishment in instrumental terms, because in this case, the nurse’s crime was not in her causing the death of the child, but rather the fact of her moving on to work with a new family, without the consent of the parents of the dead baby. Nor would it render a reÀective talionic punishment, as the wet nurse could still resume sexual relations with her own husband, conceive, and give birth to a child (assuming of course, that she did not bleed to death from the mutilation of her breast).

511. MAL A4 prescribes the removal of the wife’s ears, MAL A5 the cutting off of the wife’s nose, and MAL A9 both the cutting off of the nose and laceration of the wife’s face. 512. See napƗlu in CAD, 11:272–75. 513. See the further discussion of tulƗša inakkisu (“they shall cut off her breast”) in G. R. Driver and J. C. Miles, The Babylonian Laws. Vol. 2, Transliterated Text, Translation, Philological Notes, Glossary (Oxford: Clarendon, 1955), 248. 514. Paul, “Biblical Analogues to Middle Assyrian Law,” 337. 1

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Knut Talqvist comments on the similarity between the Assyrian reconstruction and Deut 25:11–12 and suggests that the mutilated body part was indeed the woman’s hand, where he acknowledges Marcus Jastrow’s reconstruction: “The ¿ngers (thumbs?) of both hands.”515 This is the sole interpretation that is based on inner-Assyrian legal exegesis, where Jastrow compares the signi¿cance of the punishment in MAL A9, which states: “[If] a man has laid upon a married woman and has treated her as a young child (?) (and) charge (and) proof have been brought against him, one of his ¿ngers shall be cut off. If he has kissed (?) her, the edge of the blade (?) of an axe shall be drawn along his lower lip (and) it shall be cut off.”516 The underlying logic here is clearly one of instrumental talion, as Jastrow recognizes, where he comments: “in further associations between the crime and punishment, we ¿nd that the man who in a brawl bites a woman has his lower lip chopped off. The punishment falls on the hand or on the lower lip that committed the deed.”517 This explanation clari¿es how the mutilation of the ¿ngers (and, by association, the hand) functioned also as a form of instrumental talion in this Assyrian collection. Moreover, as MAL A9 immediately follows MAL A8, it is reasonably justi¿ed, therefore, to ¿ll the gap in line 87 as follows: 84–86 87

or if she has crushed the second testicle in the affray her ¿ngers shall be cut off.518

In addition to the internal logic of the Middle Assyrian tradition, this reconstruction bene¿ts also from the support of separate case law found in Nuzi. The account of a trial published by Cyrus Gordon is of immediate relevance to both MAL A8 and Deut 25:11–12. In this case, the convicted woman, Imshennaya, is identi¿ed as the wife of a slave who is 515. Tallqvist, Old Assyrian Laws, 14 n. 3. 516. MAL A9, lines 88–96; translation from Driver and Miles, The Assyrian Laws, 385, with philological notes 460–61. 517. Jastrow, “An Assyrian Law Code,” 7–8. 518. That more than one ¿nger is indicated, is evidenced by the plural marker MEŠ, which appears to follow immediately after the broken sign in MAL A8, line 87 (with the initial upright wedge missing) on Schroeder’s copy, which is conventionally written as follows:

The relevant sign (174) is from the list published by J. Huehnergard, A Grammar of Akkadian (2d ed.; Winona Lake: Eisenbrauns, 2005), 573. 1

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in the service of a master, named Ha’ishteshup. Imshennaya intervenes in a ¿ght to defend one of the combatants, Arihaya, “and in the street put her hand on the loin of Akapshenni and blood was let.”519 She is brought to court and upon refusing to take the divine oath is pronounced guilty. The judges impose a ¿ne of livestock (one ox, one ass and ten sheep) to be paid to Akapshenni for his injuries, but here the following occurs: upon obtaining consent of Haishteshup, the court representatives are then also invested with the right of amputating Imshennaya’s ¿nger, since she is “his personal property.”520 Thus once the ¿ne was imposed and announced by the court, the of¿cials then had to go to Imshennaya’s owner, Ha’ishteshup for permission to mutilate his slave. It is also not clear whether this second penalty (i.e. her mutilation) was an optional extra or a more cost-effective choice of punishment. As Gordon observes, “perhaps Ha’ishteshup is offered the alternative of either paying the ¿ne (lines 24–25) or having Imshennaya lose a ¿nger.”521 The signi¿cance of this trial record from Nuzi is that it is the earliest available evidence that corroborates the mutilation of ¿ngers, as suggested by MAL A8, for this speci¿c crime, in accordance with the interpretation of Marcus Jastrow. Furthermore, it also indicates that both monetary compensation and punishment by means of physical retaliation were technically operative simultaneously, in a single case. If the mutilation of a woman’s ¿ngers was a commonly recognized punishment, as both MAL A8 and the above case from Nuzi indicates, it was speci¿cally adapted as a form of instrumental talion by the Deuteronomist to allay one of his greatest fears: a man’s participation in the cult could not be threatened by a woman, speci¿cally another man’s wife in a ¿ght, as Robert Alter has proposed. If any wife dared reach out at an opponent’s genitals she would lose at least the palm of her hand, not forgetting the separate risk of bleeding to death from her injury. If she survived, her mutilated stump would permanently evidence the heinous nature of her crime and, furthermore, she would be deprived of her main household occupations, including spinning and weaving, which on a symbolic level would be a potent indication that her sexual and reproductive powers had been cut off. In the light of our discussion in Section 3.6.3, “ĊĐ ġĎġ ĊĐ: ‘A Hand for a Hand,’ or His Name and His Seed?,” the perception of Deut 25:11–12 as a form of symbolic talion can be taken further: this wife’s punishment 519. Cyrus H. Gordon, “A New Akkadian Parallel to Deuteronomy 25:11–12,” JPOS 15 (1935): 29–34 (32). 520. Ibid., 33. 521. Ibid. 1

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would additionally signify the elimination of any future memory, “monument” or “name” in keeping with Isaianic prophecy: “I will give in my house and within my walls a monument and a name better than sons and daughters; I will give them an everlasting name that shall not be cut off” (Isa 56:5). The memorial of any woman with a formal monument—as in the naming of the tree as the “oak of weeping” in Bethel, commemorating the burial of Rebekah’s nurse (Gen 35:8)522— is exceptional. Irrespective of this symbolism, the woman who by her inappropriate grasp could disqualify an Israelite from his cultic service would be permanently mutilated, by the amputation of her palm (if not her hand, as the Targumists preferred) exactly as if she were an abandoned, enemy corpse, precisely as the tradition in Proverbs literally suggests: “hand to hand the evil one will not escape.”523 Thus Deut 25:11–12, despite its obvious evocation of instrumental talion, is equally a classic example of symbolic talion, recalled through the con¿guration of ĊĐ ġĎġ ĊĐ, “a hand for a hand,” as “his name and his seed,” representing the perpetuation of memory and the proliferation of future offspring. Equally inescapable is Walter Brueggemann’s observation that “the priority of men and the irrelevance of women are unmistakable in this case. The ordering of social power is preserved with harshness and unblinking severity.”524 This is precisely the case in the punishment of the female slave, Imshennaya, at Nuzi. Moreover, as pointed out by Driver and Miles, it is the Assyrian law (speci¿cally MAL A8, lines 78–80) which “shows itself more humane that the Hebrew inasmuch as the penalty is not the loss of a hand but of only one ¿nger.”525 3.6.5. ēĉğ ġĎġ ēĉğ or His Foot and Her Sandal? Once again, in the absence of ¿nite talion, and also of ¿nancial penalties speci¿ed for injury to a foot, what then did the clause ēĉğ ġĎġ ēĉğ, “a foot for a foot,”526 signify, and how was this representation communicated in the biblical record? As was the case with the comparative 522. The relevance of Gen 35:8 was suggested by Deborah Rooke during her supervision of my MA thesis at King’s College, London. 523. The NRSV translation of ęğ ċĞėĐĀćē ĊĐē ĊĐ in Prov 11:21 is “Assuredly, the evil man will not escape.” Here the NJPS (1617 n. c) con¿rms that ĊĐē ĊĐ means, literally, “hand to hand,” though adding the comment that “meaning of Heb. uncertain.” 524. W. Brueggemann, Deuteronomy (Nashville: Abingdon, 2001), 243. 525. Driver and Miles, The Assyrian Laws, 31. 526. Exod 21:23 and Lev 24:20, together with the variation of ēĉğĈ ēĉğ in Deut 19:21. 1

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provisions for injuries of the hands, the laws both at Eshnunna and in Hammurabi’s Code indicate that only monetary compensation was prescribed for injuries of this limb, as follows: LE 45 LH 11–12

Breaking an awƯlu’s foot Breaking an arm or leg

30 shekels of silver 20 shekels of silver for a free man 10 shekels of silver for a slave

The symbolism of the ĊĐ or “hand” commemorating the name, memory and future progeny of the deceased, male Israelite is particularly instructive, where the formulation ĊĐ ġĎġ ĊĐ, “a hand for a hand,” encapsulated the elements of symbolic talion. Together with Marcus Jastrow’s observation that “wives and daughters in the Assyrian Code are regarded entirely from the early point of view as forming part of the possessions of a man, over whom he has full authority,”527 the Deuteronomic provision of levirate marriage (Deut 25:5–10) is highly evocative of such symbolism: When brothers dwell together and one of them dies and leaves no son, the wife of the deceased shall not be married to a stranger, outside the family.528 Her husband’s brother shall unite with her: he shall take her as his wife, and perform the levir’s duty. The ¿rst son that she bears shall be accounted to the dead brother,529 that his name may not be blotted out in Israel.530 But if the man does not want to marry his brother’s widow, his brother’s widow shall appear before the elders and declare: “My husband’s brother refuses to establish a name in Israel for his brother: he will not perform the duty of a levir.”531 The elders of the town shall then summon him and talk to him. If he insists, saying, “I do not want to marry her,” his brother’s widow shall go up to him in the presence of elders, pull the sandal off his foot,532 spit in his face,533 and make this

527. Jastrow, “An Assyrian Law Code,” 8. 528. Here Raymond Westbrook explains, “this is a technical term referring to the period after the death of the father when his sons continue to live in undivided ownership of the estate that their father left them as their inheritance,” Westbrook, Everyday Law, 63. 529. ġĕċ ČĐĎć ĔĠĀēę means literally, “to the dead brother’s name” at Deut 25:6. 530. The explanation ēćğĠĐĕ ČĕĠ ċĎĕĐĀćēČ, “that his name may not be blotted out in Israel,” corroborates the interpretation of Isa 56:3–5 given in Section 3.6.3, “ĊĐ ġĎġ ĊĐ: ‘A Hand for a Hand,’ or His Name and His Seed?” 531. As exempli¿ed in Gen 38, in the actions of Judah and Tamar. 532. The requirement ČĐēĉğ ēęĕ Čēęė ċĝēĎČ, “And pull the sandal off his foot,” informs the designation of the contemporary rabbinic rite as ċĝēĎ. 533. Calum Carmichael suggests that “the analogy of spitting with the emission of semen is obvious. The analogy is especially appropriate in regard to the woman’s action because her gesture is a contemptuous one,” C. Carmichael, “A Ceremonial 1

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The Body as Property declaration: “Thus shall be done to the man who will not build up his brother’s house!534 And he shall go in Israel by the name of “that family of the unsandalled one.”535

In this context Meir Malul explains that “sitting together in a household, said of brothers, clearly creates some legal obligations and rights vis-àvis each other,”536 which is combined with the symbolism of walking on land, as a means of formally taking possession of it,537 as indicated by the tradition in 1 Sam 25:25, where David’s men are described by Abigail literally as “those who walk at the feet of my Lord” (ĐēĉğĈ ĔĐĒēċġĕċ ĐėĊć). This interpretation recalls the Sumerian and Akkadian terms for the foot (GÌR and šepu respectively) which denote the idea of being under the authority, or at the disposal of another. This symbolism is relevant to the Deuteronomic formulation of the talionic principle, where the preposition Ĉ (meaning “with” or “in”) appears without the preposition ġĎġ (meaning “for” or “instead of”), in the clause ēĉğĈ ēĉğ (“a foot for a foot,” Deut 19:21), which is thus indicative of submission and subservience.538 It is in this light that the cuneiform expression kƯma šepišu/ qƗtišu, literally “according to his foot/hand,”539 is reÀected by the terms Crux: Removing a Man’s Sandal as a Female Gesture of Contempt,” JBL 96 (1977): 321–36 (330–31). Carmichael uses Num 12:14; Isa 50:6; Job 30:10, and b. Nid. 16b as supporting texts. 534. Ibid., 331: “Hence, in that the meaning of unshoeing is precisely in regard to his withholding conception, the house name alludes to his failure to upbuild his brothers house.” 535. Or “the House of the Slipped-Off Sandal,” as Robert Alter prefers, The Five Books of Moses, 1001–2. See further Dvora Weisberg, Levirate Marriage and the Family in Ancient Judaism (Waltham, Mass.: Brandeis University Press; Hanover, N.H.: University Press of New England, 2009). 536. Malul, Knowledge, Control and Sex, 166. 537. This can be corroborated also by Deut 11:24, “Every spot on which your foot treads shall be yours,” and Deut 2:5, “for I will not give you of their land, as much as a foot can tread on.” See, additionally, Deut 1:36; 11:25, and Josh 1:3, together with the discussion in Malul, Knowledge, Control and Sex, 172, and, in greater detail, M. Malul, “ !AqƝb ‘Heel’ and !Ɩqab ‘To Supplant’ and the Concept of Succession in the Jacob–Esau Narratives,” VT 46 (1996): 190–212 (212). 538. As apparent in Isa 41:3, where the proposition Ĉ (meaning “in,” “with,” or, as in this case, “on”) occurs with ēĉğ (“leg” or “foot”): ćČĈĐ ćē ČĐēĉğĈ Ďğć (“No shackle is placed on his feet”). This symbolism of walking on land as a means of formally taking possession of it is evident also in Deut 11:10: “For the land you are about to enter and possess is not like the land of Egypt from which you have come. The grain you had sowed had to be watered by your own labors [literally, by đēĉğĈ, ‘your foot’] like a vegetable garden.” 539. Malul, Knowledge, Control and Sex, 172. 1

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speci¿ed in Deut 25:5–10, where the widow is both at the authority and disposal of her brother-in-law.540 This symbolism is also evoked in the formal designation of a share in an inheritance, according to one’s rank or position within the family unit, since “shoes served as a means to transfer property.”541 Such transfers are recalled also by the performance of a symbolic act, attested in nine Nuzi adoption documents, where the “šƝpa šnjlû(u) šakƗnu, ‘to lift or place the foot,’ denoted the idea of supplanting a person’s place in his property.”542 Accordingly the Deuteronomic requirement of “pulling off the sandal” provides a reverse image of the legal process attested at Nuzi where the transfer of property to an adopted heir was formalized: BrieÀy, when an adoptive father wanted to transfer a certain piece of property (always immovable), he would take the adoptee to a certain spot in the said property, place his own foot on it, raise the foot and then place the grantee’s foot in his footprint. In that way, it is understood that the adoptee has taken the place of the adoptive father with respect to that property: he succeeded him.543

Here the use of the phrase kƯma šƝpƯšu/nu, meaning “according to his/ their foot/feet,” is explained by Malul as follows: “The idiom means that the brothers take their share in the family property according to their place, standing, ranking in the family hierarchy or, in other words, according to the status, which implies speci¿c rights (and obligations) within the family matrix.”544 For the Deuteronomic scribes, such obligations included the perpetuation of a deceased brother’s name and 540. Catharine Hezser’s suggestion is also apposite: “If we take into consideration that shoes were valuable objects, symbols of prestige, and means of exerting power in biblical antiquity, taking off the levir’s shoe and revealing his naked foot would have constituted a serious offence to his manhood.” C. Heszer, “The Halitza Shoe: Between Female Subjugation and Symbolic Emasculation,” in Jews and Shoes (ed. E. Nahshon; Oxford: Berg, 2008), 47–63 (49). 541. Ibid., 49; see also Jacob Chinitz, “The Role of the Shoe in the Bible,” JQR 36 (2007): 41–46. 542. “The general form of the formula with minor and insigni¿cant variations is PN1 GÌR-šu ištu property uštƝli u GÌR-šu ša PN2 (ina property) ištakan ‘PN1 (the adopter) raised his foot from the property and placed the foot of PN 2 (the adoptee) (on the property).’ It is then reported that the property is given to the adoptee,” M. Malul, Studies in Mesopotamian Legal Symbolism (Kevelaer: Butzon & Bercker; Neukirchen–Vluyn: Neukirchener Verlag, 1988), 381. See also the relevant documents identi¿ed in this context by Ernest R. Lacherman, “Note on Ruth 4:7–8,” JBL 56 (1937): 53–56. 543. Malul, “ !AqƝb ‘Heel’,” 197. 544. Ibid., 197–98. 1

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progeny, where the widow pulling off her brother-in-law’s sandal, spitting in his face and making her public declaration (con¿rming his refusal to take her as a wife) recalls this symbolism in no uncertain terms. The related use of this symbolism in the form of procedural evidence can also be identi¿ed in the custom of imprinting a young child’s foot in clay, to indicate taking possession or title of the child,545 where Malul observes: “The foot impressions of a foundling symbolize thus its disenfranchised status, of its having been outcast and relinquished by its natural parents in the waste places.546 The possession of such foot impressions by the adopter of such foundlings would signify his full right to the adopted foundling and, much like the clause ina mêšu / u dƗmêšu ‘[the foundling was picked up and adopted] while still wallowing in its amniotic Àuid/birth blood,’ it curbed any claim from any side in the future against the adopter with regard to the adopted foundling.”547 This formality is mentioned also in the laws of Lipit-Ishtar,548 in LI20: “If a man rescues a child from a well, he shall take [an imprint] of his feet.”549 In the provision of levirate marriage in Deut 25:5–10, the symbolism of a woman pulling the sandal from her brother-in-law’s foot and spitting at him con¿rms that she is removed from his possession and 545. Three impressions of feet of clay with inscriptions are known from Emar and one (uninscribed) from Nippur. Further corroboration is provided in documents from the Old Babylonian and Neo-Babylonian periods and one “¿ctive” Middle Assyrian contract, examined in Meir Malul’s “Foot Symbolism in the Ancient Near East: Imprinting Foundlings’ Feet in Clay in Ancient Mesopotamia,” ZABR 7 (2001): 353–67 (354–58). The ¿nal contract is deemed to be “¿ctive,” since it is witnessed by the gods Sîn, Šamaš, Ištar and Gula, rather than named individuals. 546. Malul, Studies in Mesopotamian Legal Symbolism, 382: “the formulation of the ‘foot’ expression in the present documents makes it clear that it was the adopter who raised his own foot and placed the adoptee’s foot on the property.” 547. Malul, “Foot Symbolism,” 365. See also E. Leichty, “Feet of Clay,” in DUMU-E2-DUB-BA-A: Studies in Honor of Åke W. Sjöberg (ed. H. Behrens et al.; Occasional Publications of the Samuel Noah Kramer Fund 11; Philadelphia: University Museum, 1989), 349–56, and G. Frame, “A Neo-Babylonian Tablet with an Aramaic Docket and the Surety Phrase pnjt šƝp(i)…našû,” in The World of the Aramaeans. Vol. 3, Studies in Language and Literature in Honour of Paul-Eugène Dion (ed. P. M. Michèle Daviau et al.; Shef¿eld: Shef¿eld Academic, 2001), 100–33. 548. Lipit-Ishtar was the ¿fth ruler of the First Dynasty of Isin (founded after the Third Dynasty of Ur) who reigned from 1934 to 1924 BCE. The city of Isin, in Lower Mesopotamia, was a major cult centre as well as an important strategic political and military site. 549. Malul translates this provision as follows: “If a man rescues a child from a well, he shall [take his] feet [and impress them in clay],” Malul, “Foot Symbolism,” 358. 1

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authority, and is available for marriage to another man. Admittedly in this Deuteronomic law, the symbolism recalled by the phrase šƝpa šnjlû(u) šakƗnu, to lift or place the foot,” unfolds in the opposite direction: unlike the gesture indicated by the clay imprints of the foundling’s feet, this widow and her children will not become part of her brother-in-law’s estate—she has removed his sandal and is then forced to spit directly into his face, undeniably as a sign of her contempt for his rejection. Additional facets of this symbolism are evoked also in the use of the ēĉğ (“foot”) as a euphemism for the penis, where Lynn Bechtel explains: The sexual meaning of “feet” as a euphemism for the penis is widely attested (cf. also Judg. 3:24;550 I Sam. 24:3;551 2 Kgs 18:27 = Isa. 36:12;552 Isa. 7:20,553 Ezek. 16:25,554 and in all probability Ex. 4:25,555 Deut. 28:57;556 Isa. 6:2).557 When the widow removed the brother-in- law’s sandal from his foot, she symbolized the removal of his Levirate privilege of having sexual intercourse and producing an heir. And this combined with spitting, which symbolized the shameful refusal to cause the woman to conceive. Additionally, the sandal removal could have symbolized the loss of property to the brother-in-law if the widow then married outside the family and produced an heir.558

550. In Judg 3:24, Eglon’s courtiers assume that he is alive but absent because the doors of the upper chamber remained closed and therefore “he must be relieving himself in the cool chamber”; “covering his feet” (ČĐēĉğĀġć đĐĘĕ Ěć) implies Eglon’s dropping of his loincloth. 551. In 1 Sam 24:4 Saul enters a cave “to relieve himself” (đĐĘċē ēČćĠ ćĈĐČ ČĐēĉğĀġć); here, ČĐēĉğĀġć đĐĘċē (“to cover his feet”) is speci¿ed. 552. In 2 Kgs 18:27 the Assyrian Rabshakeh informs Hezekiah’s of¿cers: “It was precisely to the men who are sitting on the wall who will have to eat their dung and drink their urine with you”; the euphemism for “their urine” is ĔĒĐēĉğ Đĕĕ (literally, “the waters of/from their feet”), as recalled also in Isa 36:12. 553. ĔĐēĉğċ ğęĠ (“the hair of the feet”) is a euphemism for pubic hair in Isa 7:20. 554. In Ezek 16:25, the spreading of the legs reveals the female vagina: “You built your mound at every crossroad; and you sullied your beauty and spread your legs to every passer by and you multiplied your harlotries.” 555. Although not necessarily in Exod 4:25, where “Zipporah took a Àint and cut off her son’s foreskin, and touched his legs with it.” 556. According to the Deuteronomic curses, “the after-birth that issues from between her legs and the babies she bears; she shall eat them secretly.” 557. Isa 6:2 is not entirely convincing, where a literal interpretation of ČĐēĉğ ċĘĒĐ (“he covered his legs”) is equally reasonable: “In the year that King Uzziah died, I beheld my Lord seated on a high and lofty throne; and the skirts of his robe ¿lled the Temple. Seraphs stood in attendance on Him. Each of them has six wings: with two he covered his face with two he covered his legs and with two he would Ày.” 558. Bechtel, “Shame as a Sanction,” 60–61. 1

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While this “levirate privilege” was inextricably related to the recollection of the male “name” and the perpetuation of his “seed” in the ĊĐ ġĎġ ĊĐ, “hand for hand,” clause of the talionic formulation, it also represented the continuity of legitimate male successors, recalling the memory of a dead husband,559 where the ultimate purpose was “to perpetuate the name of the deceased upon his estate,” as Ruth 4:10 clari¿es.560 It is in this light that convention to ČĐġēĉğĕ ġĐēĉČ, “uncover his feet,” can also be understood, where Naomi instructs Ruth: “So bathe, anoint yourself, dress up and go down to the threshing Àoor. But do not disclose yourself to the man (Boaz) until he has ¿nished eating and drinking. When he lies down, note the place where he lies down, and go over and uncover his feet and lie down” (Ruth 3:4). Here the narrator emphasizes the non-sexual representation of the feet, so that the uncovering of the genitals was not implied, but rather only the law of the levir: “Now this was formerly done in Israel in cases of redemption or exchange: to validate any transaction, one man would take off his sandal and hand it to the other. Such was the practice in Israel. So when the redeemer said to Boaz, ‘Acquire for yourself,’ he drew off his sandal” (Ruth 4:9b– 10).561 Notwithstanding these efforts, Calum Carmichael observes, “thus the drawing off of the sandal (as in the Arab divorce ceremony the sandal represents the woman or the woman’s genitals) from the man’s foot (in Hebrew the foot can allude to the male sexual organ) signi¿es, by a process of transference, the man’s withholding conception,”562 where the levir’s refusal to do his duty towards his brother’s wife corresponds to his public humiliation in the formal ceremony. While Raymond Westbrook cautions against assuming that the removal of the sandal had the identical legal meaning as described in Deut 25:5–10, since “the

559. As Mahlah, Noah, Hoglah, Milcah and Tirzah (the daughters of Zelophehad) recognized likewise in Num 27:4, “Let not our father’s name be lost to his clan just because he has no son!” 560. Ruth 4:10 has Boaz declare: “I am also acquiring Ruth the Moabite, the wife of Mahlon, as my wife, so as to perpetuate the name of the deceased upon his estate, that the name of the deceased shall not disappear from among his kinsmen (ĔĐĞċē ČġēĎėĀēę ġĕċĀĔĠ) and from the gate of his home town. You are witnesses today.” 561. See here particularly Adele Berlin, “Legal Fiction: Levirate cum Land Redemption in Ruth,” JAJ 1 (2010): 3–18. 562. Carmichael, “A Ceremonial Crux,” 329. For the opposing view, that the removal of the sandal represents no more than a rite of passage in which the woman achieves liberation and autonomy from the control of the levir, see P. A. Kruger, “The Removal of the Sandal in Deuteronomy XXV 9: A Rite of Passage?,” VT 46 (1996): 534–39. 1

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ceremony in Ruth represents a concession to a right; in Deuteronomy it represents failure to perform a duty,”563 the retaliatory nature of the woman’s actions (and speech) in Deut 25:5–10 qualify as a form of symbolic talion. In this context I suggest that the expression ēĉğ ġĎġ ēĉğ (“foot for foot”) recalled the available formalities for the legitimate transfer of property (and with it, the responsibilities of ownership), where its presence in Deut 25:5–10 and in Ruth 4:7–8 indicated that the ēĉğ “foot,” either un-sandaled or uncovered, conveyed the “gestural act” and also the pre-institutional mechanism for releasing (or acquiring) surviving widows. The objective here was to perpetuate the name of the deceased,564 by enabling the widow to produce sons from his surviving brother, who would carry her late husband’s (rather than their own father’s) name. Thus in symbolic terms the quali¿cation ēĉğ ġĎġ ēĉğ (“a foot for a foot”) and its Deuteronomic makeover ēĉğĈ ēĉğ (literally, “a foot in a foot”), represented both the control of those women acquired by the male to ensure that both the “name” and his “seed” of his dead brother were commemorated. In relation to Exod 21:22–25, this might imply that any male assailant would be liable for damages, even for those inÀicted on the newly acquired levirate wife, if not also a widow, when injured in a public brawl, although this suggestion is speculative. This is clearly substantiated even without “the erotic signi¿cance of the foot as the male symbol and the sandal as the female symbol,”565 and where such representations characterize Israel’s national aspirations, as the Chronicler con¿rms (2 Chr 33:7), when recalling God’s promise: And I will never again remove the feet of Israel from the land which I have assigned to their fathers.

ğĐĘċē ĚĐĘČć ćēČ ēćğĠĐ ēĉğĀġć ċĕĊćċ ēęĕ ĔĒĐġĈćē ĐġĊĕęċ

563. R. Westbrook, Property and the Family in Biblical Law (JSOTSup 113; Shef¿eld: Shef¿eld Academic, 1991), 83. See also E. A. Speiser, “Of Shoes and Shekels,” BASOR 77 (1940): 15–20. For an example from rabbinic literature of the reverse application of the symbolism of the shoe, see b. Qid. 49a, where a woman could reject a suitor, with the statement that “I do not want a shoe too large for my foot.” 564. It is also possible to consider this a pre-institutional practice since the means and dissolution of levirite marriage did not require the formal adjudication of a court, but solely the presence of ten male witnesses, or as Ruth 4:2 states, “ten elders of the town.” 565. Carmichael, “A Ceremonial Crux,” 323. 1

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3.7. Key Features of the Talionic Principle Summarized Given the complexities presented in this discussion, the conclusions advanced to date can now be summarized, before moving onto examining the requirement of piercing the ear of the Israelite slave. It is suggested that the use of ¿nite or strict sense talion was speci¿ed in Exod 21:23, where the Ġěė ġĎġ Ġěė, “life for life,” principle denoted live, human substitution and recalled the Assyrian tradition, kimu ša libbiša napšate umalla, “he pays (on the principle of) a life (for a life).”566 This is supported, ¿rstly, by the assertion that the Ġěė ġĎġ Ġěė, “life for life,” principle did not prescribe capital punishment for accidental homicide (or murder) in the Covenant Code—that is, the law did not require that the man who killed a pregnant woman in a brawl was to be killed himself, and secondly, by the fact that the talionic formulation in the Covenant Code was linguistically distinct from the requirement for monetary compensation and did not mandate ¿nancial penalties for accidental injuries in this corpus.567 This is highly signi¿cant, in view of the fact that for over 2,000 years the rabbinic consensus has been the precise opposite: that the talionic formulation represented only ¿nancial penalties.568 The restatement of this “life for life” principle in both Leviticus in 24:17 and 24:20, and in Deut 19:21,569 as ĠěėĈ Ġěė,570 revises its application to include the death penalty for intentional homicide. Quite separate from this is also its revision in Lev 24:18,

566. See Driver and Miles, The Assyrian Laws, 418–21; Jackson, “The Problem of Exodus XXI 22–25,” 293, and also Wisdom Laws, 211. 567. Financial restitution in the Covenant Code occurs in Exod 22:2, 3, 8, 10, 11, 13, 14, 15, and 16, where only the following terms designate payment: ēĞĠĐ ĚĘĒ, ğċĕ, ĔēĠ. In Exod 22:16 ēĞĠĐ ĚĘĒ recalls the cuneiform equivalent: kaspam išaqal / išaqqal. 568. See Jacob Milgrom, “Lex Talionis and the Rabbis: The Talmud ReÀects an Uneasy Rabbinic Conscience Towards the Ancient Law of Talion, ‘Eye for Eye, Tooth for Tooth’,” BR 12, no. 2 (1996): 16–48, and Copperman, “Understanding ‘An Eye for an Eye’,” 9–22. 569. Here the ¿nite or strict sense application quali¿es the punishment of the malicious witness who is to receive the same capital (or corporeal) penalties that he (or she) had planned for another. 570. In view of the absence of the preposition ġĎġ (meaning “for” or “instead of,”) in Deut 19:21 (where ĠěėĈ Ġěė is witnessed), I have suggested that exemplars from 1 Sam 28:9; 2 Sam 14:7; Pss 17:8–9; 27:12; 41:3; Jonah 1:14; Job 21:25; and Est 4:13 demonstrate that the cognate Ġěė together with the preposition (meaning “in,” or “with”) are indicative of mortal death. 1

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where Ġěė ġĎġ Ġěė ċėĕēĠĐ, “[he] shall make restitution, life for life,”571 designates ¿nancial penalties only for the fatal injury of livestock.572 In terms of corporeal punishments, the ¿nite or strict sense application of the talionic principle in Exod 21:22–25 suggests that equivalent mutilation was required for non-fatal assault of the pregnant wife, where “eye for eye, tooth for tooth, hand for hand, foot for foot,” consequences were speci¿ed not for the assailant, but vicariously for the assailant’s wife.573 Here the purpose of the talionic formulation in the Covenant Code was motivated by the desire to protect (and avenge) the Israelite’s transferable property (in this case, possibly his most valuable asset, his pregnant wife), in the event that she was permanently injured from an assault incurred in a brawl. This was not the case when the talionic principle was restated in Priestly and Deuteronomic law, where it referred, ¿rst, to any physical injury received by any Israelite,574 and secondly, where a malicious witness had deliberately accused an innocent person of a crime that could incur capital or corporal punishment.575 Nowhere in the Priestly restatement (or any other P text) are the categories of instrumental, reÀective or symbolic talion evident with reference to any of the other body-part injuries speci¿ed in the talionic ġĎġ formulation: namely the eyes, teeth, or more speci¿cally hands or feet. Equally notable is the fact that the talionic formulation in P was not restricted to punishment for injury to a pregnant wife exclusively, but extended to qualify any physical injury incurred by any Israelite. Furthermore, where retaliatory measures involving eyes, teeth, hands or feet are indicated (outside of the talionic formulation, i.e. Exod 21:23–25; Lev 24:21, and Deut 19:16–21) they are invariably instrumental, reÀective or symbolic in their form and process,576 as the discussion of punishments to each body part demonstrates. 571. Unlike the Covenant Code formulation in Exod 21:23, where ġĎġ Ġěė ċġġėČ

Ġěė (“the penalty shall be life for life”) was speci¿ed.

572. Lev 24:18: “One who kills a beast shall make restitution, life for life”; see also Lev 24:21: “one who kills a beast shall make restitution for it.” 573. Houtman, Exodus, 3:166. 574. Lev 24:19–20: “If anyone maims his fellow, as he has done so shall it be done to him. Fracture for fracture, eye for eye, tooth for tooth. The injury he inÀicted on another shall be inÀicted on him.” 575. While the book Susanna provides a highly contrived account of the use of this principle in a capital case, the practical dif¿culties in understanding the ¿nite or strict sense application of corporal punishment in Deut 19:16–21 have been outlined in Section 3.3.7, “The Deuteronomic Revision: ĠěėĈ Ġěė, “Life for Life.” 576. See Zev Farber, “Extra-Legal Punishments in Medieval Jewish Courts,” in Mishpetei Shalom: A Jubilee Volume in Honor of Rabbi Saul (Shalom) Berman 1

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Accordingly, with reference the formulation ĖĐę ġĎġ ĖĐę, “an eye for an eye,” the punishment of blinding is assumed as a response to inappropriate sexual desires (exempli¿ed by the behaviour of Samson, in Judg 16:1–4, and in the lust of the Sodomites, indicated in Gen 19:5), where the process of instrumental talion is explicit in Graeco-Roman and early rabbinic sources. Blinding could also be rationalized as a consequence of inadequate, or irresponsible, leadership where the characterization of both Samson’s and Zedekiah’s negligence (or as Yael Shemesh prefers, “metaphorical blindness”),577 explains their loss of sight as a form of instrumental talion. Instrumental talion is apparent also in relation to the gouging of the eyes of ungrateful or mocking children in Babylonian law (LH 193) and Prov 30:17.578 In terms of ĖĠ ġĎġ ĖĠ, “a tooth for a tooth,” facial mutilation, speci¿cally the breaking of teeth, is associated with the breach of a contract in pre-Sargonic Sumerian documents, Babylonian contracts from Ur, Nuzi and Emar (where the traditions in Pss 3:8, 58:7–9 and Job 27:19 were examined). In these cases it is not possible to differentiate between the processes of instrumental or reÀective talion, given that it is not speci¿ed whether the sinner’s mouth, which uttered the falsehood, or the contents of their speech (con¿rming their deceit), determined the nature of their punishment. Subsequent rabbinic sources corroborate this association between the crime and its punishment, the most explicit being the imperative ČĐėĠ ġć ċċĞċ ċġć ĚćČ, “you should indeed blunt his teeth,” preserved in the contemporary Passover Seder service, where it is the penalty mandated for the wicked son, who disassociates himself for the redemption from Egypt: in this context, the son who denies the role of God in his national history is in breech of his ancestral covenantal contract, where his punishment would constitute a form of reÀective talion, corresponding to the breaking of teeth in early Sumerian and Babylonian sources. Yet again, it is also possible to classify this response as a form of instrumental talion, given that it is the son’s offending mouth which is targeted for injury. In light of the further Deuteronomic revisions of the talionic principle, the requirement in 25:12, ċěĒĀġć ċġĝĞČ (“you shall cut off her palm”),579 (ed. Yamin Levy; Riverdale, N.Y.: Yeshivat Chovevei Torah Rabbinical School, 2010), 191–233, and earlier, Schreiber, Jewish Law and Decision Making, 396–410. 577. Shemesh, “Punishment of the Offending Organ,” 355. 578. The tradition in Prov 20:20 is relevant only for the capital punishment of children, which is required in Exod 21:15, 17; Lev 20:9, and Deut 21:18–21. 579. This is translated in both ancient and modern versions as “you shall cut off her hand,” as previously explained. 1

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functions primarily as an instrumental talionic punishment.580 This does not preclude the application of the talionic principle in symbolic terms, where ĊĐ ġĎġ ĊĐ (“a hand for a hand”) can represent the “name” of the male Israelite but concomitantly also his “seed” or future progeny. The Deuteronomic provision of levirate marriage (also intended to commemorate the name of the deceased Israelite male) is equally resourceful in its deployment of this symbolism. Here the action of the widow’s action pulling the sandal off the foot of her brother-in-law, together with her spitting and insulting declaration, is, in itself, retaliatory, and, furthermore, provides a theoretical case in which the formulation of ġĎġ ēĉğ ēĉğ (“a foot for a foot”) evoked the process of symbolic talion. Finally, these four traditions (where permanent, physical dis¿gurement is indicated for an Israelite dependant) are the most relevant to my proposed thesis: that physical dis¿gurement functioned in biblical law to verify and legitimate property ownership: Talionic Physical Dis¿gurements of Legal Dependants Exod 21:24–25: Finite or strict sense talion: “eye for eye, tooth for tooth,” etc. Deut 25:12: Instrumental talion: “you shall cut off her palm” Prov 30:17: Both instrumental and reÀective talion: “The eye that mocks a father and disdains the homage due to a mother; the ravens of the brook shall gouge it out” The Passover Seder Service—The Dialogue with the Four Sons: Both instrumental and reÀective talion: “blunt his teeth”

These are clearly distinct from the requirements of strict sense talion in Lev 24:18, 20, Deut 19:21 (mandated for any adult Israelite, rather than a speci¿ed dependant) and also the temporary dis¿gurement of the foreign captive,581 where the acceptable nature of human mutilation in the biblical record remains thus inescapable: “At the very least, these sources indicate that mutilation was at home in the biblical ethos and that its imposition as a penalty was an accepted practice.”582 That the biblical laws went to considerable lengths to limit acts of unrestrained vengeance (by means of the talionic formulation) is clear, irrespective of their failure to prohibit such violence entirely. 580. That is, as a punishment of an offending organ, as I suggested earlier in Jacobs, “Instrumental Talion.” 581. Jacobs, “Terms of Endearment?,” 237–57. 582. Levine, “Scripture’s Account: Lex Talionis,” 192. 1

Chapter 4

LEGAL ACQUISITION: THE SLAVE AND ISRAEL’S CULT PERSONNEL

4.1. Introduction This chapter will attempt to substantiate the thesis of my study: that physical dis¿gurement functioned in biblical law to verify property acquisition, particularly in cases of transfers of ownership. It is in this context that the act of piercing a slave’s ear marked Israel’s permanent dependants, rather as a veil or head covering identi¿ed a wife or concubine in biblical and other ancient Near Eastern societies.1 Accordingly, the evaluation of Exod 21:6 and Deut 15:16 will demonstrate that the act of piercing a slave’s ear provided a permanent, visible means of identifying his status in public. This, I suggest, was both to prevent the slave from escaping but also to acknowledge the legitimate property acquisition of his owner.2 Two unresolved questions will, however, remain open: 1. Was the dis¿gurement of slaves in Near Eastern antiquity a universal, but optional, precaution exercised at the discretion of the slave owner? Or was it a punitive measure extended only to unruly, or disloyal, slaves? In the second millennium the common method of identifying slaves, particularly as “a defaming sign of status,” was the abbuttu, or slave hair-lock,3 but it is not 1. Lambert, “Prostitution,” 141–42, and M. Stol, “Women in Mesopotamia,” JESHO 38 (1995): 123–44 (124). 2. “[T]he piercing ceremony and the act of circumcision, like other symbolic acts attested in ANE sources, were such symbolic acts employed for incorporating strangers into the family as full and legitimate members,” M. Malul, “What Is the Relationship Between Piercing a Slave’s Ear (Ex 21:6) and Circumcising Him with the Passover Sacri¿ce (Ex. 12:43–50)?,” ZABR 13 (2007): 135–58 (152). 3. CAD, “abbuttu,” 1:49: “Normally this lock was cut, or otherwise inconspicuously worn; only slaves (male and female) had to wear their hair in this fashion as a defaming sign of their status. At manumission, the lock was shaved off, and, conversely, when a free person for some reason became a slave all the hair, except that

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certain whether all slaves were marked thus,4 nor is this clari¿ed in the laws where its use is prescribed.5 2. The suggestion that the piercing of the permanent Israelite slave’s ear conveyed even a limited degree of punishment is categorically rejected by Meir Malul.6 Yet both Exod 21:2–6 and Deut 15:16–17 clearly did Àout the Priestly law in Lev 25:39– 46,7 which prohibited any Israelite from taking another as a slave.8 Furthermore, the very act of piercing any part of the body could constitute a ĔČĕ or blemish,9 so that any male Levite on the abbuttu, was shorn so that he could immediately be recognised as a slave.” Branding and tattooing of the slave’s hand or wrist is not attested until the ¿rst millennium BCE. 4. Malul explains that “although he who carried such a mark was certainly a slave, not every slave carried a mark. That is, the mark carried a clear punishment load, and it was intended for broadcasting in public that the speci¿c slave was singled out for punishment by his master for whatever reason,” Malul, “What Is the Relationship?,” 138–39. See here also V. A. Hurowitz, “His Master Shall Pierce His Ear with an Awl (Exodus 21:6): Marking Slaves in Light of Akkadian Sources,” Proceedings of the American Academy of Jewish Research 58 (1997): 47–77 (55–56). 5. LE 52: “A slave or a slave woman who has entered the main city-gate of Eshnunna in the safekeeping of only a foreign envoy (mƗr šiprim) shall be made to bear fetters, shackles or a slave hair-lock (kannam maškanum u abbuttam iššakanma) and thereby is kept safe for his owner”; LH 146: “If an awƯlum marries a nadƯtu, and she gives a slave woman to her husband, and she (the slave) then bears children, after which that slave woman aspires to equal status with her mistress— because she bore her children, her mistress will not sell her; she shall place upon her the slave hairlock (abbutam išakkanšimma), and she shall reckon her with the slave women”; LH 226: “If a barber shaves off the slave hairlock (abbuti wardim) of a slave not belonging to him without the consent of the slave’s owner, they shall cut off that barber’s hand”; LH 227: “If a man misinforms a barber so that he shaves off the slave hairlock (abbuti wardim) of a slave not belonging to him, they shall kill that man and hang him in his own doorway. The barber shall swear ‘I did not knowingly shave it off’ and he shall be released.” 6. See Malul, “What Is the Relationship?,” 141–42, and also Hurowitz, “His Master Shall Pierce,” 68. 7. “We may conclude that Deuteronomy received the opening formula from Lev 25:39, blended it with the opening formula of the Covenant Code and created a new synthesis,” Japhet, “The Relationship Between the Legal Corpora,” 81. 8. “If your kinsman under you continues in straits and must give himself over to you, do not subject him to the treatment of a slave. He shall remain with you as a bound and hired labourer; he shall serve only with you until the jubilee year. Then he and his children will be free of your authority; he shall go back to his family and return to his ancestral holding” (Lev 25:39–42). See also Jer 34:10–16. 9. According to Lev 21:17–21: “No man of your offspring throughout the ages who has a defect shall be quali¿ed: no man who is blind or lame, or has a limb too 1

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debt-slave who had chosen to remain in permanent servitude would, at the very least, be disquali¿ed from participation in the sacri¿cial cult once his ear had been pierced—irrespective of whether or not his owner would allow him to serve in the tabernacle or temple. In this instance, a certain punitive consequence did exist, even if it is not clear to what extent the pierced ear conveyed other negative connotations. Having clari¿ed these dif¿culties, the next step is to examine the nature of the dis¿gurements in Exod 21:6 and Deut 15:16, after which further discussion of the formal dedication of širku, or oblates, will be provided. For the moment, the explanation of the role of the širku offered by Raymond Dougherty will suf¿ce: The širknjtu was an order of male and female persons who had been dedicated to the various Babylonian deities, viz., Marduk, Nabû, BƝl, Shamash, Nergal and Ishtar. The order was recruited in different ways. Parents dedicated their children, and princes and civilians their slaves. Slaves dedicated to the širknjtu could remain in their master’s house until the latter’s death, whereupon they became the property of the deity. No doubt the supreme motive which led to the dedication of individuals to the širknjtu was a desire to secure the favor of the gods, but there is one instance in which the motive was a desire to save the children from starvation. There are indications that the offspring of a širku belonged to the deity. At any rate, children born after a parent had been branded with the sacred symbol belonged to the order to at least the third generation.10

In this context the dedication of such širku will afford relevant insights into the function of visible body marks. These con¿rm, as Michael Stone has previously suggested, “those belonging to God are sealed in Ezek 9:4–5, as are those belonging to Christ or God in the New Testament.”11

short or too long; no man who has a broken leg or a broken arm, or who is hunchback, or who is a dwarf, or who has a growth in his eye, or has a boil-scar, or scurvy, or crushed testes. No man among the offspring of Aaron the priest who has a defect shall be quali¿ed to offer the Lord’s offering by ¿re; having a defect he shall not be quali¿ed to offer the food of his god.” Similarly “They shall not make bald spots upon their heads, or shave off the edges of their beards or make any gashes in their Àesh.” See also Deut 23:2–3. 10. Dougherty, The Shirkûtu, 88. In addition, “they formed a separate socio-legal class, often referred to by scholars as temple slaves but to be distinguished from slaves in the strict sense,” Oelsner, Wells and Wunsch, “Mesopotamia: The NeoBabylonian Period,” 926. 11. Stone, Fourth Ezra, 158. 1

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4.2. “Pierce his ear with an awl”: Exodus 21:6 and Deuteronomy 15:16 The following evaluation of Exod 21:2–6 and Deut 15:12–17 indicates that the act of piercing of this slave’s ear achieved three objectives: ¿rst, it provided permanent, visible means of identifying the slave’s status within society. Second, it publically acknowledged his owner’s legitimate property acquisition. Third, it was a mark that technically prevented the slave from attempting an escape. All of this reÀects the historical reality that “a slave counted as property with monetary value”12 in ancient societies. In addition to these objectives, Samuel Driver noted that piercing the slave’s ear also had “the effect of bringing the slave into a relation of dependence on the gods of his master’s family, and of admitting him to the full religious privileges of the family.”13 It is not entirely apparent whether this constituted “a rite of passage in a case of adoption,”14 as Karel van der Toorn claims, since no inheritance rights (or lack of) are mentioned in either source. The law in both versions is presented as follows: Exod 21:2–6 2a When you acquire a Hebrew slave,  2b he shall serve six years; 2c in the seventh year he shall go free, 2d without payment.  3a If he came single, 3b he shall leave single;  3c if he had a wife, 3d his wife shall leave with him.  4a If his master gave him a wife,

Deut 15:12–17 12a If a fellow Hebrew, man or woman, is sold to you, 12b he shall serve you for six years  12c and in the seventh year you shall set him free.  13 When you set him free, do not let him go empty-handed:  14a furnish him out of the Àock, threshing Àoor and vat, 14b with which the Lord your God has blessed you.  15a Bear in mind that you were slaves in the land of Egypt 15b and the Lord your God redeemed you; 15c therefore I enjoin this command on you today.   

12. G. Mayer, “ĚĘĒ kesep,” TDOT 7:270–82 (274). 13. S. R. Driver, The Book of Exodus with Introduction and Notes by S. R. Driver (Cambridge: Cambridge University Press, 1926), 211. To what degree this act con¿rms indications of ancestor worship (as advocated, for example, by Karel van der Toorn, Family Religion, 233–34) is less relevant to the present discussion. 14. Van der Toorn, Family Religion, 234.

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4b and she has borne him children,  4c the wife and her children shall belong to the master,  4d and he shall leave alone.  5a But if the slave declares,15  5b “I love my master,  5c and my wife and children: 5d I do not wish to go free,” 6a his master shall take him before God.16 6b He shall be brought to the door, 6c or the doorpost,17  6d and his master shall pierce his ear with an awl;  6e and he shall then remain his slave for life.

   16a 16b 16c 16d

 But should he say to you, ‘I do not want to leave you’ for he loves you and your household and does not want to leave you—

17a you shall take an awl and put it in his ear through into the door 17b and he shall become your slave in perpetuity 17c Do the same with your female slave.

From a source-critical perspective, Yair Zakovitch provides a speculative, but nonetheless interesting, reconstruction of the relationship of these two texts, which he suggests demonstrates “the boomerang phenomenon.”18 Zakovitch argues that the problematic location of the ceremony, originally before the household gods (ĔĐċēćċĀēć, Exod 21:6a) was unacceptable to Deuteronomic scribes,19 with their pragmatic concern for the centralization of the cult. Accordingly, the additional retrojection of ċčČčĕċĀēć Čć (“or the doorpost,” Exod 21:6c) was added back to the Covenant Code to emphasize that nothing other than the

15. This statement constitutes the “performative utterance” (Viberg, Symbols of Law, 86–87) or “verba solemnia” (Malul, “What Is the Relationship?,” 141 and 145 n. 35) that invalidates the slave’s manumission. 16. Notably the NJPS translation of the phrase ĔĐċēćċĀēć ČĐėĊć ČĠĉċČ is not in keeping with the grammar of the Hebrew, which provides: “His master shall take him before the Gods” (in the plural). This is presumably the basis for Samuel Driver’s explanation that the requirement for the slave to be “brought before the door” was because this was where “the household gods, or Penates, of the master’s house, [were] kept and worshipped by the door,” Driver, The Book of Exodus, 211. 17. Although the door-post is absent in the Deuteronomic revision, its role will be recalled with reference to a Sumerian incantation, shortly. 18. Zakovitch, “The Boomerang Phenomenon.” 19. Cf. Isa 57:8: ġĐēĉ Đġćĕ ĐĒ đėČğĒč ġĕĠ ċčČčĕċČ ġēĊċ ğĎćČ, “Behind the door and the doorpost you have directed your thoughts, abandoning Me.” 1

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door, including its hinges and post, was intended.20 This creative reconstruction, however attractive from a text-critical perspective, does not address three more practical dif¿culties which need examining in more detail: 1. Given the widespread branding or tattooing of a slave’s hand with his master’s name, why was the ear of the permanently indentured Israelite slave marked in biblical law?21 2. Why was the use of an awl explicit, when no preference for the mutilating tool was speci¿ed for any other biblical dis¿gurement?22 3. What was the signi¿cance of the Israelite door or doorpost, other than as the locus of the family gods?23 This ¿rst question relating to marking the ear of the indentured Israelite slave, when compared with the precedent in Hammurabi’s code, is striking: LH 282

If a slave should declare to his master, “You are not my master,” he (the master) shall bring charge and proof against him that he is indeed his slave, and his master shall cut off his ear.

20. This view, however, is not entirely convincing: assuming that this text (i.e.

ċčČčĕċĀēć) was not integral to Exod 21:6c, its subsequent insertion could equally

emphasize the role of the door and its post to an audience that was presumably familiar with their ritual (and idolatrous) associations. 21. The allegorical response in the Mekhilta de-Rabbi Ishmael (attributed to Rabbi Yochanan ben Zakkai)—“why was the ear chosen from among all the organs of the body to be pierced?”—provides a synthesis of instrumental talion (i.e. punishing an offending organ) and reÀective talion (where the nature of the sinner’s crime determines the nature of the his punishment) in rabbinic exegesis: “The ear which heard ‘thou shalt not steal’ and went and stole—it from among all the organs shall be pierced. This is because the ear is the organ of obedience.” See the discussion in Hurowitz, “His Master Shall Pierce,” 51–52. 22. In Gen 17:9–14 and 23–27 no indication is given as to what type of instrument is to be used for carrying out the act of circumcision. Similarly, no mention is made of an axe or knife being used to cut the offending woman’s palm in Deut 25:11–12. 23. Note also the allegorical interpretation in b. Qid. 22b (attributed to Rabbi Shimon bar Rabbi): “Why were the door and doorpost singled out from all other parts of the house? The Holy One, blessed be He, said: The door and the doorpost, which were witnesses in Egypt when I passed over the lintel and the doorposts and proclaimed, For unto me the children of Israel are servants, they are my servants, and not servants of servants, and so I brought them forth from bondage to freedom, yet this [man] went and acquired a master for himself—let him be bored in their presence!” 1

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According to this provision, the slave who desires emancipation from his master (evident from his verbal testimonial) provides a precise mirror image of the Israelite slave who seeks the very opposite, and declares “I love my master, and my wife and children: I do not wish to go free.”24 Furthermore, it is the ear of the slave (cut off in Babylonia, to indict the rebellious slave) that was pierced to demonstrate visibly the Israelite slave’s permanent indentured status. The Middle Assyrian Code also provides further insight into what was also technically considered an acceptable assault of a debt slave: MAL A44

If an Assyrian man, or an Assyrian woman, who is dwelling in a man’s house as a pledge for his value, has been taken (in discharge of the debt) up to the full value, he may Àog him, pluck out (his hair), he may bruise (and) bore his ear.25

Here the act of piercing the ear of a pledge is presented as a form of physical abuse, sanctioned by law, although it is not clear to what extent this tradition would have been known to the biblical scribes, let alone recognized as mutilation worthy of reuse in their earliest legal collections. I suggest that the most compelling association is provided by William Propp, who points out that the consecration of the Aaronid Priests “as Yahweh’s chattel”26 requires the application of blood to the right ear, thumb of the right hand and toes in Exod 29:20:27 an association that will be further supported as this discussion continues. In light of the use of the ęĝğĕ, or awl, alongside its obvious evocation of ancient Near Eastern nail inscriptions, the symbolism of piercing the slave’s ear emphasizes his position not as the subject of punishment, but as a legally acquired item of property.28 This representation is additionally supported by the use of property nails, inserted between the bricks of 24. Exod 21:5b–d, where the Deuteronomic parallel in 15:16b provides: “I do not want to leave you.” 25. Driver and Miles, The Assyrian Laws, 408–9. MAL A40, lines 88–94: “Slave-girls shall not be veiled, and he who sees a veiled slave girl shall arrest her (and) bring her to the entrance of the residency; her ears shall be cut off (and) the man who has arrested her shall take her clothing.” Failure to apprehend and arrest a veiled slave woman necessitation that “he shall be beaten 50 blows with rods; his ears shall be pierced (and) a cord passes through (them) and be tied behind him. The informer (against him?) shall take his clothes, he shall do the king’s labour for one full month,” Driver and Miles, The Assyrian Laws, 412–13. 26. Propp, Exodus 19–40, 195. 27. Cf. Lev 8:23–24, “on the ridge of Aaron’s right ear”; see also 14:14 and 17. 28. As suggested initially by Aaron Shaffer, “Clay Nails from Mesopotamia in the Israel Museum,” Israel Museum News 11–12 (1976): 83–86. 1

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a wall with the heads clearly visible, which were inscribed on their head or shaft (sometimes both), and attested from the early third millennium until the mid-¿rst millennium. Like the earlier cone inscriptions,29 they are also known by the Akkadian term, sikkatum.30 While the cone inscriptions proclaim the name of the king responsible for building the palace or temple,31 the nail inscriptions identify the name of the owner of the property in which the nails were embedded. In addition, the legal and symbolic act of driving in the nail, attested in Old Babylonian sources,32 referred speci¿cally to the measuring, surveying and allocation of land by a professional registrar or surveyor. This of¿cial then verbally con¿rmed that the nail had been driven (sikkatum ma¨ƗÑim) into the land, so that once the declaration was witnessed, the transfer of the allocated area to its new owner could be legally recognized. As Aaron Shaffer explains “it is clear from this and other contexts that the nails were not simply measuring pegs. It appears that their use imparted legality and permanence to each allotment of land.”33 Two aspects of this procedure have been emphasized by Paul Koschaker: ¿rst, the public nature of the of¿cial’s act in proclaiming the transfer of land, and second, that the assignment of land was designated for a speci¿c, named individual.34 Meir Malul adds that the act of driving the nail into the wall was

29. The clay cone being “a hollow, oblong conical object which is tapered to almost a point at one end and bears a large semi-spherical head at the other end,” V. Donbaz and A. K. Grayson, Royal Inscriptions on Clay Cones from Ashur Now in Istanbul (The Royal Inscriptions of Mesopotamia, Supplements 1; Toronto: University of Toronto Press, 1984), 1. 30. See CAD, “sikkatu,” 15:247–51. See also M. Malul, “gag-rú: sikkatam mahƗsum/retûm ‘To Drive in the Nail’: An Act of Posting a Public Notice,” Oriens Antiquus 26 (1987): 17–35. 31. For example: “any future king who would rebuild the temple should not replace the cone I have driven in [with another] (síkàtàm ša a¨aÑu la urâb ana išrišama lutaer) but should restore [this cone] to its original place,” CAD, “sikkatu,” 15:250. 32. These include correspondence between Hammurabi and Šamaš-hazer (examined in Malul, “gag-rú: sikkatam mahƗsum/retûm,” 19) together with Old Babylonian rent, sale and loan documents from Susa (Malul, “gag-rú: sikkatam mahƗsum/retûm,” 20–23). Aaron Shaffer examines a text also from the earlier reign of Narim-Sin from Eshnunna, which he compares with with similar cone inscriptions currently housed at the Israel Museum; see Shaffer, “Clay Nails,” 83. 33. Shaffer, “Clay Nails,” 83. 34. P. Koschaker, Über einige griechische Rechtsurkunden aus den östlichen Randgebieten des Hellenismus, mit Beiträgen zum Eigentums—und Pfandbegriff nach griechischem und orientalischen Rechten (Leipzig: Hirzel, 1931), 100–101. 1

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The Body as Property a legal procedure serving to publicize the newly acquired legal status of a certain piece of immovable property (including slaves) that had changed hands. The nail driven into the wall by the public herald carried either the new owner’s symbol of ownership (in the form of his seal impression) or a précis of the newly acquired sealed sale transaction, and it then served as a public notice communicating the new change.35

This element of public communication was integral to the requirements in the Covenant Code and in Deuteronomic law. Aaron Shaffer notes that “The two procedures in the biblical account—bringing the slave before the deity and the piercing of the slave’s ear—are functional analogues of the two aspects of the Mesopotamian transaction.”36 As such, the speci¿cation of the doorpost, as the locus of the family gods,37 together with the ęĝğĕ, the awl, like the Mesopotamian nails, “imparted legality and permanence,”38 to the indenture of the Israelite slave. One ¿nal text, LKA 135,39 a ritual incantation, presents what Victor Hurowitz calls a “stimulating riddle.”40 Despite Malul’s objections to its relevance,41 this text affords insight into the effectiveness of symbolic processes in ancient thought, and furthermore: “Since Mesopotamian rituals are based sometimes on legal practices and contain metaphors from the realm of law, the two types of texts may prove mutually illuminating.”42 The ritual involves taking potter’s clay and moulding a ¿gurine that represents the fugitive slave. The image is formed with its hands tied at its back and its legs fettered, after which a peg of pomegranate wood is driven into its mouth.43 The ¿gure is then ignited upon a censor of 35. M. Malul, “On Nails and Pins in Old Babylonian Legal Praxis,” Acta Sumerologica Japan 13 (1991): 237–48 (237). 36. Shaffer, “Clay Nails,” 85, as also Viberg, Symbols of Law, 86–87. 37. This is similar to the way “the door, or the doorpost” functioned in Exod 21:6b-c and Deut 15:17a. 38. Shaffer, “Clay Nails,” 83. 39. Originally published by E. Ebeling, “Eine assyriche Beschwörung, um einen entÀohen Sklaven zurückzubringen,” Orientalia 23 (1954): 52–56. 40. Hurowitz, “His Master Shall Pierce,” 68. 41. According to Malul, “the act of driving a wooden peg into the clay ¿gurine representing the fugitive slave, which Hurowitz puts in parallelism with the act of piercing in the biblical verse, carries a heavy load of punishment, something that does not accord well with the spirit of the biblical act and the simple sense of the text,” Malul, “What Is the Relationship?,” 141–42. 42. Hurowitz, “His Master Shall Pierce,” 68. 43. Recalling also the pre-Sargonic, Sumerian sale of slave contract (Hackett and Huehnergard, “On Breaking Teeth,” 271–72), which stated: “If she (the seller) detains (the slave), (or) raises the claim, then she puts deceit in her mouth/teeth (and) a wooden nail will be driven into her mouth/teeth.”

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cypress and sulphur, and then placed with libations of beer in front of the god Šamaš in an isolated house. The purpose here is not to punish the slave, but rather to induce his return. The doorpost, as Malul rightly points out, is no more that a simile, yet the incantation addresses not only Šamaš but Ea and Marduk also,44 “Just as you swing out on your axis (manzazziki)45 and you turn around, [so] may the fugitive slave swing out and turn around and return to his master’s house by the command of Ea, Shamash and Marduk.”46 As Hurowitz concludes, “whatever the case may be, even if the Assyrian ritual is not in direct line of descendency with the Israelite practice, it may be a brother or a not so distant cousin.”47 To what degree the biblical laws exhibits indirect borrowing from both LH 282 and MAL A44 is also impossible to determine. Nor have we accounted for the signi¿cance of the indentation left “as some sort of record,” as Hurowitz suggests, upon the doorpost of the house.48 Since this was the locus of the Israelite’s family gods, did the newly pierced hole function as a sign to these deities to protect the newly incorporated permanent slave, whose own ear carried the same bore mark? If so, this would recall the apotropaic function of the blood on the Israelites lintel and doorposts that enabled the Lord to “pass over the door and not let the Destroyer enter and smite your home” (Exod 12:23). Accordingly, while both the ear and the awl featured speci¿cally in Babylonian and Assyrian legal traditions, the door-post or axis featured only in the above Sumerian ritual. Given the function of the Mesopotamian nails in symbolizing legality and permanence to land and property transactions, this would 44. Malul’s view is that these deities constitute an “unpalatable” parallel with the Israelite household gods ĔĐċēćċĀēć of Exod 21:6a, as he explains: “The door in the Assyrian ritual functions just as simile in the incantation wishing the return of the fugitive slave and is not an integral part of the ceremony. The mention of the god Shamash too does not come close to the mention of the house gods in biblical law, gods that have a clear role within the private family milieu and its religion,” Malul, “What Is the Relationship?,” 142 n. 23. 45. Recalling ċčČčĕċĀēć “the doorpost” in Exod 21:6c. 46. Hurowitz, “His Master Shall Pierce,” 71. 47. Ibid., 77. This observation recalls Andrew George’s description of the relationship between Gilgameš and Homer. 48. “The Deuteronomic stipulation that the door is to be placed be oznô ûbaddelet has been explained by J. Tigay (oral communication) as meaning ‘through the ear into the door’ on the basis of 1 Samuel 18:11 where we ¿nd ‘and Saul threw the javelin thinking “I will hit David and the wall (akkeh beDƗwîd ûbaqqir)” ’ meaning ‘I will run him through and the spear will come out in the wall behind him’. In my opinion, the resulting mark on the door may have potentially served some sort of record of the event, especially since the hole left by the operation would have been at the height of the servant’s ear,” Hurowitz, “His Master Shall Pierce,” 50–51 n. 6. 1

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also account for the use of the ęĝğĕ, or awl, in the permanent acquisition of the Hebrew slave. It is also possible, as William Propp has argued, that “in Israel, the lifelong slave may have worn in his ear not a label, but a cattle ring, representing the invisible rope binding him to his owner and his household.”49 Clearly the explicit Priestly aversion to all forms of permanent indenture of the Israelite (Lev 25:39, 46), and the exclusion of any dis¿gured or blemished male from the sacri¿cial cult,50 have obvious negative implications. Yet, it is by no means certain whether the early J/E scribes (or those responsible for the laws in the Covenant Code), let alone the Deuteronomic scribes necessarily had access to (or knowledge of) Priestly law, given its later dating.51 Accordingly, the outcome of this discussion con¿rms simply that the ear-piercing of the male Israelite slave provided visible proof of his permanently indentured status and formal acknowledgment of legitimate property acquisition. In this respect it is similar to the rite of circumcision, the membership sign demanded by Israel’s God, where “the circumcised penis and the pierced ear both stood for the status of a person as a full member in the social group.”52 4.3. Marking the Israelite as the Property of His God Akin to this discussion of branding and tattooing, the mark of Cain53 recalls Bahani’s earlier observation that “a physical body is inscribed, as 49. Propp, Exodus 19–40, 195. Propp further observes that while the mark of circumcision (Gen 17:9–14) and the fringes on a garment (Num 15:38–40) distinguished those with them from others, the pierced ear additionally reminded the slave of the day he entered lifelong bondage. Ibid., 194. See here also earlier proposal of I. Mendelsohn, “Slavery in the Ancient Near East,” BA 9, no. 4 (1946): 73–88. 50. Lev 21:17, 21, 23; 22:20, 21; Num 19:2; Deut 16:21, 17; 1QSa 2:7, where it is not explicit whether or not an ear piercing would de¿nitely constitute a ĔČĕ or “defect.” 51. The agreed dating of the Priestly source is to the sixth or ¿fth centuries BCE (as a response to the Babylonian destruction in 586 BCE). My suggestion is also tenable in view of Israel Knohl’s earlier dating of this source to 950–850 BCE, if, as he maintains, that “…the Priestly teachings were closely guarded within the ranks of the Priesthood, and no one outside of this elite group had access to them,” I. Knohl, “The Editing of the Torah,” in The Divine Symphony: The Bible’s Many Voices (Philadelphia: Jewish Publication Society, 2003), 1–8 (1). See also Chaim Cohen, “Was the P Document Secret?,” JANES 1, no. 2 (1969): 39–44. 52. Malul, “What is the Relationship?,” 137. 53. Gen 4:15b states: ČćĝĕĀēĒ ČġćĀġČĒċ ĐġēĈē ġČć ĖĐĞē ċČċĐ ĔĠĐČ, “and the Lord put a mark on Cain, lest anyone who met him should kill him.” Here ġČć is translated as a “mark” rather than “sign.” 1

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in a text with signs from the gods. All bodies—not just the royal body— are therefore encoded by the gods.”54 Regarding the mark of Cain, it is to be admitted that there is no indication of either the size or nature of this mark in biblical sources.55 In his Excursus on “The Mark of Cain,” Claus Westermann concludes that “we must acknowledge that even the narrator himself had no idea of the form of the sign.”56 Nevertheless, the mark con¿rms, in the ¿rst instance, the exclusive rights of the blood redeemer to avenge the death of Abel and, secondly, protects Cain from the legitimate administration of the death penalty—as punishment for killing his brother. Here Cain’s personal redeemer, like that of the Israelites in Egypt, is none other than God himself: a situation recalling also the divine salvation promised in Ezek 9:4–6, where, likewise, those protected by God were visibly identi¿ed by a mark: And the Lord said to him, “Pass through the city, through Jerusalem and put a mark on the foreheads57 of the men who moan and groan because of all the abominations that are committed in it.” To the others he said in my hearing, “Follow him, through the city and strike; show no pity or compassion.58 Kill off greybeard, youth and maiden, women and children; but do not touch any person who bears the mark.”59

Daniel Block explains that those who are marked “are not merely the innocent or those who desist from evil, but those who are actively 54. Bahrani, Rituals of War, 98. 55. Westermann observes further, “in other places where ġČć is linked with ĔĐĠ (i.e. Exod 10:2; Pss 74:4; 78:43; 105:21; Isa 66:19; Jer 32:20; Ezek 14:8), ġČć is for the most part an event; in particular the signs God did in Egypt. In Ezek 19:9, a man becomes a sign and in Ps 74:4 it means military colours; here ĔĐĠ has the meaning ‘to set up’,” C. Westermann, Genesis 1–11: A Continental Commentary (trans. J. Scullion; Minneapolis: Fortress, 1994), 312. 56. Westermann, Genesis 1–11, 314. See also R. W. L. Moberly, “The Mark of Cain—Revealed at Last?,” HTR 100 (2007): 11–28. 57. This ġČĎĝĕ Čġ ġĐČġċČ, “mark a tav on the foreheads,” is explained by Walter Zimmerli: “the verb ċČġ goes back possibly to the last letter of the Hebrew alphabet, ġ, which in the old Hebrew orthography was written as a cross,” W. Zimmerli, Ezekiel 1: A Commentary on the Book of the Prophet Ezekiel, Chapters 1–24 (trans. R. E. Clements; Philadelphia: Fortress, 1979), 247 n. 61. 58. ČēĕĎġĀēćČ ĔĒėĐę ĘČĎġĀēć, “show no pity or compassion,” directly recalls Deut 25:12: đėĐę ĘČĎġ ćēČ, “show no pity.” 59. Čġċ ČĐēęĀğĠć ĠĐćĀēĒĀēęČ, “Any person who bears the mark.” For discussion of the relationship between this mark and its reception in Rev 7:3; 9:4; 14:1; 17:5; 19:12, 16; 20:4 and 22:4, see M. Bar-Ilan, “Jewish Magical Body-Inscription in the First and Second Centuries,” Tarbiz 57 (1988): 37–50 (Hebrew), online English translation by M. Sheinberger http://faculty.biu.ac.il/~testsm/tatoos.html (cited February 15, 2008), 1–22 (3). 1

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righteous—they moan and groan over the sins of the city.”60 In all likelihood, these ideas would have been mediated through a circle or school of disciples, which was “very de¿nitely a minority group, perhaps associated with those set aside by the tƗv who sighed and moaned with Ezekiel over the in¿delity of the many (Ezek 9:4)—not essentially different, therefore, from Ezra and his ‘tremblers’ who mourned over the in¿delity of the golah (Ezra 9:4).”61 Such marks provide the underlying rationale also for the tradition in Hag 2:23: “On that day declares the Lord of Hosts, ‘I will take you, O My servant Zerubbabel son of Shealtiel,’ declares the Lord ‘and make you as a signet;62 for I have chosen you,’ declares the Lord.” Carol and Eric Meyers explain that “A signet (ÜôtƗm) or seal, usually on a ring or otherwise attached to a chain or thong so that it could be worn on one’s person, was an individual’s of¿cial signature in the ancient world.”63 They evaluate the range of archaeological evidence of inscribed, artistic motifs depicted on these seals, noting also that royal or of¿cial edicts were authorized with the use of a monarch’s seal, as in 1 Kgs 21:8.64 Their metaphorical interpretation of Hag 2:2365 is that both the “mark on 60. D. I. Block, The Book of Ezekiel: Chapters 1–24 (Grand Rapids: Eerdmans, 1997), 310. See also Block’s “Excursus: The Afterlife of the Tav on the Forehead,” 310–14. 61. J. Blenkinsopp, Judaism, the First Phase: The Place of Ezra and Nehemiah in the Origins of Judaism (Grand Rapids: Eerdmans, 2009), 158–59. 62. ĔġČĎĒ đĐġĕĠČ, “and make you as a signet,” also witnesses the use of the verb ĔĐĠ, “to put or to place,” which Westermann suggested was prevalent with the establishment, or setting up of, “a sign” (ġČć); see Westermann, Genesis 1–11, 312. 63. C. L. Meyers and E. Meyers, Haggai, Zechariah 1–8: A New Translation with Commentary (AB 25B; New York: Doubleday, 1987), 69. This is precisely also the rationale for the rabbinic conception of circumcision as the seal of ĐĊĠ upon the Israelite male, as explained in Section 2.5, “The Development of Circumcision as a Divine Seal.” 64. In addition to these sources there is also the allegorical use of ĔġČĎ as a “seal” in Song 8:6, where the lover asks: ęČğčĀēę ĔġČĎĒ đĈēĀēę ĔġČĎĒ ĐėĕĐĠ, “Let me be a seal upon your heart, like the seal upon your hand.” Here, although the JPS translates ęČğčĀēę ĔġČĎĒ as “like the seal upon your hand.” It should be noted that ęČğč is actually “an arm.” 65. “ ‘My signet’ in Haggai means Yahweh’s signet, through which his sovereignty will be exercised. ‘Signet’ is therefore a marvelous metaphor for the concept of Yahweh’s cosmic and supreme rule being effected on earth through a designated ‘servant’ who would be his signet, assigned to carry out the divine will,” Meyers and Meyers, Haggai, Zechariah 1–8, 69. The discussion by Meyers and Meyers of the reversal of this image in Jer 22:23–25 is also pertinent: “As I live—declares the Lord—if you, O King Coniah, son of Jehoiakin, of Judah, were a signet on my right hand, I would tear you off even from there” (Jer 22:24). 1

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the forehead” and also the “signet” conveyed the servant’s devotion and belonging to God, but at the same time, represented their anticipation of divine protection. Similar objectives are present also in Job’s plea in 31:35, where the mark of the Čġ was intended to protect him from physical harm, given its clearly apotropaic role,66 as Meir Bar-Ilan has cogently argued.67 While for Job the divine mark is literally the ĐĊĠ ĐČġ, “[my] tav of Shaddai,”68 further inscriptional marks, designating the name (or sign) “of the Lord,” are attested in Isa 44:5: One shall say, “I am the Lord’s Another shall use the name of ‘Jacob,’ Another shall mark his arm ‘of the Lord,’69 and adopt the name of ‘Israel’.”

Đėć ċČċĐē ğĕćĐ ċč ĈĞęĐ ĔĠĈ ćğĞĐ ċčČ 70 ċČċĐē ČĊĐ ĈġĒĐ ċčČ ċėĒĐ ēćğĠĐ ĔĠĈČ

For Deutero-Isaiah, there appears a certain degree of Àexibility as regards the precise name inscribed, where equally “Jacob,” “of the Lord,” or “Israel” might designate God’s faithful servants.71 The concomitant engraving of God’s palm, mentioned in Isa 49:14–16, is all the more intriguing: “Zion says, ‘The Lord has forsaken me, My Lord has forgotten me’. Can a woman forget her baby, or disown the child of her womb? Though she might forget, I never could forget you,” and continues: “See, I have engraved you on the palms of My hands, your walls are ever before Me.” Here Westermann draws “a suggestion of the 66. This is explicit (for example) also in Exod 28:36–38, “You shall make a frontlet of pure gold (ğČċď Ĉċč ĜĐĝ) and engrave on it the seal inscription: ‘Holy to the Lord.’ Suspend it on a cord of blue, so that it may remain on the headdress; it shall remain on the front of the head-dress. It shall be on Aaron’s forehead, that Aaron may take away any sin arising from the holy things that the Israelites consecrate, from any of their sacred donations; it shall be on his forehead at all times.” 67. Bar-Ilan, “Jewish Magical Body-Inscription,” 3. 68. The JPS translates ĐėėęĐ ĐĊĠ ĐČġĀĖċ in Job 31:35 as “O that Shaddai would reply to my writ.” The NRSV reads: “Here is my signature! Let the Almighty answer me!” Cf. also “Here is my mark! Let the Almighty answer me!,” in The Holy Scriptures ĔĐĈČġĒ ĔĐćĐĈė ċğČġ (Jerusalem: Koren, 1998), 847. 69. Read literally, ČĊĐ ĈġĒĐ is “[he] will write on his hand.” The NRSV reads “another will write on the hand” and is followed by J. L. McKenzie, Second Isaiah: Introduction, Translation and Notes (AB 20; New York: Doubleday, 1968), 62. 70. Raymond Dougherty has suggested that the Akkadian, rittu šataru (indicative of an owner inscribing his own name on his slave’s hand), corresponds to the term ĊĐ ĈġĒĐ. See Dougherty, The Shirkûtu, 82–83. 71. This affords the possibility that the mark of Cain may have been known (au contraire Westermann, Genesis 1–11, 314) but that its nature (i.e. whether it was a Paleo-Hebrew representation of the Tetragrammaton, two straight lines that intersect like a cross +, or a Greek ×, was of no signi¿cance to the Priestly writers. 1

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promise of salvation,”72 yet the anthropomorphism presented is exceptional: the divine palms are not only visualized, but both are branded or tattooed with the name (or image) of Zion. As in Gen 4:15 and in Israel’s redemption from Egypt, God’s role as divine saviour is explicit.73 It is this aspect of national redemption that is conveyed by the sign or marking of God visibly upon the Àesh of the individual Israelite, whether upon the palm, hand or even between their eyes.74 Indeed, the consensus of prophetic visionaries indicated that such signs attest equally Israel’s national con¿dence in the on-going privilege of divine protection. In these cases, both protection by God and loyalty to God—the two principal elements in the relationship between Abraham and his God—are marked visibly on the subject’s body. The centrality of protection and loyalty are con¿rmed both here and in the account of the covenantal bonds that culminated in the cut of circumcision on the male body.75 72. C. Westermann, Isaiah 40–66: A Commentary (trans. D. M. G. Stalker; London: SCM, 1969), 220. 73. Gen 4:15: “The Lord said to him, ‘I promise if anyone kills Cain, sevenfold vengeance shall be taken on him’.” Cf. Isa 49:25–26: “Yet thus said the Lord: Captives shall be taken from a warrior and spoil shall be retrieved from a tyrant. For I will contend with your adversaries and I will deliver your children. I will make your oppressors eat their own Àesh, they shall be drunk with their own blood as with wine. And all mankind shall know that I the Lord am your Savior, the Mighty One of Jacob, your Redeemer.” 74. The precise nature of the “frontlets” in Exod 13:9 is not entirely clear: “and this shall serve as a sign on your hand and a reminder on your forehead [literally ‘between your eyes’] in order that the teaching of the Lord may be in your mouth— that with a mighty hand the Lord freed you from Egypt.” Speaking of Exod 13:16, Nahum Sarna explains that “Hebrew totefet (pl. totafot) has not been satisfactorily explained. The term replaces zikkaron ‘a reminder’ of verse 9 and it appears again in the same context in Deuteronomy 6:8 and 11:18. In Mishnaic Hebrew it denotes a head ornament of some kind (M. Shabbat 6:1,5) explained in the Gemara as encompassing a woman’s head from ear to ear (BT Shabbat 57b). An alternative explanation cited there is ‘a charm containing balsam’ apparently worn as an amulet to ward off the evil eye. In Aramaic totafta is the Targum’s equivalent for Hebrew peer ‘a turban’ in Ezekiel 24:17,23, and also for the Hebrew ets adah ‘an amulet’, in 2 Samuel 1:10. The Aramaic stem ÓƗfa ‘to go around, encircle’, may underlie the term,” N. M. Sarna, ġČĕĠ Exodus: The Traditional Hebrew Text with the New JPS Translation and Commentary (Philadelphia: Jewish Publication Society, 1991), 68. See also H. Rand, “The Etymology of Totafot,” Judaism: A Quarterly Journal of Jewish Life and Thought 42 (1993): 160–63, and C. Houtman, Exodus. Vol. 2, Chapters 7:14–19:25 (Historical Commentary on the Old Testament; Kampen: Kok, 1996), 218–20. 75. In Gen 12:1–10; 15:1–16; and 17:1–22. 1

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4.4. The Priestly Consecration of Levites and Israelites Given the requirement of ear-piercing, together with the prophetic accounts of marking the faithful Israelite as the property of his God, what other extra-biblical sources evidence informs this association further? I suggest that sources from Neo-Babylonian and Persian periods provide the contextual background for understanding the terminological correlations between the Priestly consecration of Levites and the dedication of širku.76 Furthermore, this discussion will substantiate Meir Bar-Ilan’s literal interpretation of the requirement in Num 6:27, ĐėĈ ēę ĐĕĠĀġć ČĕĠČ ēćğĠĐ, “so they shall put my name on the Israelites,” as is about to be clari¿ed. In his “Assyriological Gleanings II,” Leo Oppenheim suggested that the marking slaves ful¿lled three distinct, but closely-related objectives during the Neo-Babylonian period. These were, ¿rst, to verify authentic ownership; second, to clarify legal status;77 and third, to formally identify inherent physical “peculiarities” of the slave.78 The veri¿cation of both 76. This is not to ignore the equally relevant presence of širku in Neo-Assyrian temples. Nicholas Postgate explains: “The picture to be recovered from the few surviving Neo-Assyrian conveyances cannot hope to be comprehensive, but despite this we can readily distinguish three types of dedication. In No. 15 and ARU44 the text is introduced by an invocation to the deity, and the gift is said to be made ‘for the life of the king’ (No. 15:11; ARU 44:6–7). These gifts can be classi¿ed as genuinely free-will dedications, for whatever reasons, since in No. 15 the gift includes land as well as slaves. Our second type of dedication is represented by No. 16 and ND 5436, discussed above, in which the male members of a family dedicate a child born to one of their women outside wedlock; here there is a clear social, if not, economic pressure. Finally in ND 2309 and 2316 we encounter a situation in which a woman in a high position has dedicated another woman (a slave?) to the temple, while retaining some kind of link with her,” Postgate, Fifty Neo-Assyrian Legal Documents, 112. 77. See, for example, in the scholastic Ana Ittišu series, where the forehead of a recaptured, runaway slave was inscribed ¨a-laq Ña-bat: “[This is a] runaway! Arrest!” This was a šindu amêlûti, a mark used only to identify slaves who had previously tried to escape, which was distinct also from the šindu amtûti or “slave girl mark,” used to “stigmatize them as loose (slave) girls,” A. L. Oppenheim, “Assyriological Gleanings II,” BASOR 93 (1944): 14–17 (14). 78. Ibid. Such physical “peculiarities” are evident in two further Neo-Babylonian texts which “describe slaves as uÑ-Ñu-ru, i.e. ‘marked’ (from eÑêru ‘to make a drawing’) without indicating where this mark was or what form it took. The ¿rst text gives further information, “šá uznê MEŠ-šú li-tu-ut-t[i] whose ears are split and in whose eye there is a scar.” While an injured eye is likely to affect the value of a slave, it is hard to see why the scribe felt the necessity of mentioning the negligible defect of split ears,” Oppenheim, “Assyriological Gleanings II,” 15–16. 1

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ownership and legal status was equally signi¿cant in the Persian period, as Mathew Stolper’s discussion of the registration and taxation of slave sales con¿rms.79 Stolper includes one text which is (possibly) dated to March 8, 429 BCE,80 from the reign of Artaxerxes: [Ubar]ri, son of BalƗtu, acting of his own volition, [sold] Aška-Ưtu-ÓƗbat [a slave woman who]se right hand has the name of her master Ubarri written on it, Nidintu, a slave woman of his [who]se right [hand] has the name of her master UbƗr written on it, Amat-BƝltija, [a slave woman of his who]se right hand has the name of their master Ubarri written on it— [altogether three] slave women in this (sale)—to Mamija, son of Ta¨tamnj (?) [servant] of Tattannu, for three minas of ¿ne silver [as the] entire purchase price.81

What is not evident here is whether the name of the new owner (Mamija) was additionally inscribed on the women’s’ hands, or whether the name of the previous master suf¿ced. The use of such inscriptions can be traced, likewise, to the Persian period, where they are attested in the documents from the Jewish community in the Elephantine. In these papyri the slaves mentioned bore Egyptian names and appear to have been purchased by their owners.82 For example, in a document dated to February 10, 410 BCE, Mibtahiah’s two sons (Mahseiah and Jedaniah, from her marriage to Nathan) formally acquire two Egyptian slaves who had previously belonged to their late mother—PeÓosiri and Belle, both sons of the slave Tabi. The slaves were marked identically, as follows: Branded on his right hand (with) a brand reading (in) Aramaic, like this (Belonging) to Mibtahiah.83

ĖĕĐĈ ċĊĐ ēę ġĐėĠ ċėčĒ ġĐĕğć ćğĞĕ ġġĐėĠ ċĐĎďĈĕē

79. M. Stolper, “Registration and Taxation of Sale Slaves in Achaemenid Babylonia,” ZA 79 (1989): 80–101. 80. This is text BM 62588, about which he explains: “If this text belongs to that [Tattanu] archive, it is dated to the reign of Artaxerxes I, hence 8 March 429 B.C. There are, however, no explicit prosopographic links between this text and the known components of that group,” ibid., 98. 81. Lines 1–7, translated in ibid. 82. Bezalel Porten explains that it was unlikely that Jews were sold as debt slaves, and suggests that the one slave with “the YHWH-istic theophorous name Jedaniah b. Teho (K8), was probably a house-born slave who was raised as a Jew,” B. Porten, Archives from Elephantine: The Life of an Ancient Jewish Military Colony (Berkeley: University of California Press, 1968), 203. 83. The translation of this text, B33 “Apportionment of Slaves,” is from ibid., 201, corresponding to TAD B2.11, lines 4–5 from the Aramaic. Further discussion of this description of branding is provided in ibid., 204, and Dougherty, The Shirkûtu, 83. 1

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In addition, the Aramaic term ĔĠČğ is also attested84 in the Samaritan papyri found at WƗdƯ DƗliyeh, in the clause “[his slave woman] with[out de]fect, [on whom there is no] tattoo”85—where the deeds of slave sales primarily reÀect Neo-Babylonian law. The term ĔĠČğ is retained also in subsequent rabbinic law, as Samuel Greengus observes: “in somewhat similar fashion, t. Mak. 4:15 exempts the owner who marks his slave in order to keep him from running away.”86 These sources con¿rm that the Neo-Babylonian convention of marking slaves with the name of their owner was a formality utilized in the Persian period, by the Jewish community at Elephantine, and also by the Samaritans at WƗdƯ DƗliyeh.87 Once again, these historical realities are at variance with the presentation of law in the Masoretic text, and in particular with the prohibition against the tattooing of Àesh preserved in Lev 19:28 as follows: You shall not make any gashes in your Àesh [for the dead],88

Čėġġ ćē Ġěėē ďğĠČ ĔĒğĠĈĈ

84. “Les mot ĔĠČğ est bien attesté dans les phrases ultérieures de l’araméen. Dans l’araméen mishnaique et rabbinique, ce mot est attesté sous les forms ĔĠČğ, ćĕĠČğ, et ćġĕĠČğ signi¿cant ‘marque’, ‘cicatrice’, ‘caractères’, ‘incision’,” Dušek, Les manuscrits araméens, 134. See further BDB, 1113, which gives the meaning of ĔĠğ as “to inscribe, or sign.” The biblical attestations of ĔĠğ are primarily in the book of Daniel (5:24, 25; 6:10, 11, etc.). 85. [ğċėĘČĞ ċĐēę ćē] ĔĠČğ Đč ċ[ĕĐ]ĕġ [ċēĐč ćĕć], WDSP2, line 2 (ibid., 134). The English translation is from A. D. Gross, Continuity and Innovation in the Aramaic Legal Tradition (JSJSup 128; Leiden: Brill, 2008), 71. 86. ğČďě ĎğĈĐ ćēĠ ČĊĈę ēę ĔĠČğċ, cited in S. Greengus, “The Selling of Slaves: Laws Missing from the Hebrew Bible,” ZABR 3 (1997): 1–11 (7). Likewise b. Git. 86a, which states: ĐċČēę ġĐć ćē ĠėĐćĊ ĔČĠğČ, “and there is no mark of any other man upon him.” 87. Also in a document of unknown provenance (AD7. Bodleian Pell. Aram. I), written from either Susa or Babylon in the late ¿fth, a steward is told by his master to employ additional artisans, as follows: ĐēĐč ćġėĠĈ ČğďĘČ, “[and] mark them with my mark.” See J. M. Lindenberger, Ancient Hebrew and Aramaic Letters (2d ed.; Writings from the Ancient World 14; Atlanta: SBL, 2003), 93–94. 88. “For the dead” is placed within parentheses since its Hebrew equivalent, ġĕē, is not present in the MT, and also because the construct form of Ġěėē ďğĠ (literally, “marking or gashing one’s person”) is not explicitly “for the dead,” as speci¿ed in Deut 14:1: ġĕē ĔĒĐėĐę ĖĐĈ ċĎğĞ ČĕĐĠġ ćēČ ČĊĊĉġġ ćē, “You shall not gash yourselves or shave the front of your heads because of the dead.” Here the Hebrew ćēČ ĔĒĐėĐę ĖĐĈ ċĎğĞ ČĕĐĠġ is translated in the NRSV as “you must not lacerate yourselves, or shave your forelocks for the dead.” Alter, The Five Books, 950, renders this as “a bald place in front of your head,” which is based upon its de¿nition (BDB, ċĎğĞ, 901) as “baldness, bald spot, made as sign of mourning.” 1

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The Body as Property or incise any marks on yourselves: I am the Lord.90

89

Čėġġ ćē ęĞęĞ ġĈġĒČ ċČċĐ Đėć

In view of the marking of slaves in these ancient Jewish sources, two explanations of this prohibition can be offered: 1. The ¿rst is that this law forbids only tattooing (presumably with a reed stylus and ink) rather than branding, where ďğĠ is, more precisely, an “incision.”91 This is based on its verbal form, meaning “to incise, or scratch,” which is related to its Aramaic (ďğĘ) and Akkadian (šarâtu, “to slit up, rend”) cognates.92 This distinction is particularly relevant in the ¿rst millennium, where the common method of inscribing text onto the skin was by means of tattooing, using ink and a reed stylus,93 unlike branding, which was attested primarily in second millennium sources for both slaves and livestock. 2. The second (more likely) option is simply that the prohibition addressed well-established practices (indictated by Isa 44:5, for example), which the Priestly legislators wished to eradicate. Both options are not mutually exclusive, although the ¿rst possibility affords further correspondence with the convention of branding temple slaves, or oblates (širku) in the Neo-Babylonian period, as Muhammad Dandamaev explains: “The mark was apparently branded on the slave’s wrist, or perhaps the back of the hand, with a scorching hot, iron instrument called a šindu.94 This same word usually designated all types of 89. BDB, ęĞęĞ, 891, also meaning “incision, imprintment, tattoo.” 90. Cf. Lev 21:5: ČďğĠĐ ćē ĔğĠĈĈČ ČĎēĉĐ ćē ĔĐėĞč ġćěČ ĔĠćğĈ ċĎğĞ ČĎğĞĐ ćē ġďğĠ, “They shall not shave smooth any part of their heads or cut the side-growth of their beards, or make gashes in their Àesh.” For a discussion of the reception of this tradition in rabbinic tradition, see m. Mak. 3:6; b. Mak. 21a; and y. Ned. 21a. 91. BDB, ďğĠ, 976. 92. The use of šarƗÓu in relation to human Àesh is exempli¿ed as follows: [maš]ki ul áš-ru-uÓ ana erime ul u[tir], “I did not tear the skin, I did not (even) make a mark”; Lambert, Babylonian Wisdom Literature 202:3 (Fable of the Fox). See CAD “Š,” Part Two, “šarƗÓu,” 59. 93. Erica Reiner explains: “Cuneiform texts from the Neo-Babylonian period often explicitly say that the marks are in Aramaic, i.e. alphabetic writing. In rare cases, it is speci¿ed what the mark is, such as a letter of the West Semitic alphabet,” E. Reiner, “Runaway—Seize Him,” in Assyria and Beyond: Studies Presented to Mogens Trolle Larsen (ed. J. G. Derckson; Leiden: Nederlands Instituut voor het Nabije Oosten, 2004), 475–82 (477). 94. For additional discussion of the legal texts referring to the šindu amnjtu, (GEMÉ-ú-tu) or “mark of servitude,” speci¿ed for “a wayward slave woman,” see M. W. Stolper, “Inscribed in Egyptian,” in Studies in Persian History: Essays in 1

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brands, and/or marks used for slaves and livestock.”95 An example of a bronze Sumerian branding iron, dated to between 2600 and 2300 BCE, is available in the Schøyen collection (Oslo) labelled, “Mr Duggani: Branding Iron for Livestock or Slaves.”96

Figure 6. Sumerian Cattle Branding Iron. Courtesy of Martin Schøyen.

The dimensions of the signs on this tool (4.2 × 7.8 × 3.6) are considerably larger than that used for slaves, although it is evident that the iron was used for branding, as Martin Schøyen explained in personal correspondence: “I believe the scholar who described it as having clearly been used, based his assessment on the brittle state of the iron which could have been caused by repeated heating and cooling. It has not been caused by corrosion and it is so structurally fragile that it is actually in two parts.”97 In the case of the širku, it was not the name of the deity, but Memory of David M. Lewis (ed. M. Brosius and A. Kuhrt; Achaemenid History 11; Leiden: Nederlands Instituut voor het Nabije Oosten, 1998), 133–43 (134). For discussion of the etymology and linguistic applications of the šindu. See Dougherty, The Shirkûtu, 84–85. 95. M. Dandamaev, Slavery in Babylonia from Nabopolassar to Alexander the Great: 626–331 B.C. (DeKalb: Northern Illinois University Press, 1984), 488. 96. This was brought to my attention by Irving Finkel of the British Museum. The image reproduced here is from the Schøyen Collection (MS3032); image downloaded on 30 December 2008 and used with permission from Martin Schøyen, from http://www.schoyencollection.com/smallercollect2.htm#24.14. For a discussion of earlier sources see Remco de Maaijer, “Late Third Millennium Identifying Marks,” in Veenhof Anniversary Volume: Studies Presented to Klaas R. Veenhof on the Occasion of His Sixty-Fifth Birthday (ed. W. H. van Soldt et al.; Uitgaven van het Nederlands Historisch Archaeologisch Instituut te Istanbul 89; Leiden: Nederlands Instituut Voor Het Nabue Oosten, 2001), 301–24. 97. As indicated in a personal communication on December 30, 2008 from Martin Schøyen. 1

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rather the deity’s emblem which was branded into their skin. So, for example, those from the Ezida temple of Borsippa were branded either with an image of a spade (the emblem of Marduk) or the scribe’s reed (the emblem of Nabu), whereas a star was the symbol of Ištar at the Eanna temple in Uruk.98 As Mathew Stolper explains, “these marks were not simple indications of ownership, and not simple marks of reduction to servitude; they were cited in records of disputes as legal evidence of a juridical status that was protected against sale and purchase by ordinary citizens, hence fundamentally distinct from the status of ordinary slaves.”99 This can be seen from the following text: YBT 7:66, lines 1–9 Nubtâ, a female slave of Nâdina-a¨u, the son of Nabû-a¨ê-ukîn, who spoke as follows: “Nâdina-a¨u, my master when he marked me with a star, dedicated me to the [goddess] Bêlit of Erech. Fate removed Nâdinaa¨u, my master, and Shamash-zêr-ushabshi, the brother of Nâdina-a¨u, who took possession after Nâdina-a¨u from the house of Nâdina-a¨u took me, and to Innina of Erech did not give me. Suqâ, Iddina-Nabû and Nabûa¨-iddannnu, my sons, I bore in the house of Shamash-zêr-ushabshi.100

Here it appears that a širku, once consecrated, could remain in her master’s house for the duration of his life, but would otherwise be expected to be delivered to the temple upon his death. In this case the širku, Nubtâ, was instead taken by her master’s brother, who then fathered her three subsequent sons. The tablet then provides an impressive list of witnesses, who testify to seeing “the star which was upon her hand,”101 thereby con¿rming that Nubtâ was still the property of the Erech temple in Uruk. The judicial decision was that she and her sons were to remain in the home of her master’s brother, Shamash-zêrushabshi, who meanwhile could not sell her, or marry her off to another slave. Only upon his death would Nubtâ be delivered to the temple, with

98. See the discussion of the “MUL-ti = kak-kab-ti = ‘star’ ” in Dougherty, The Shirkûtu, 81–82. Dougherty states: “Thus the verbal phrase kakkabtu šamâtu = ‘to mark with a star’ has its counterpart in the nominal expression kakkabtu šindu = ‘star mark’,” ibid., 83. 99. Stolper, “Inscribed in Egyptian,” 135. Stolper adds, “since slaves of the crown held a juridical status that was similarly protected against ordinary sale and purchase (arad-šarrnjtu, amat-šarrnjtu), it is inviting to suppose that they were similarly marked.” Such concerns are characteristic also of Priestly law, where Lev 25:39 emphasizes: “If your kinsman under you continues in straits and must give himself over to you, do not subject him to the treatment of a slave.” Cf. Lev 25:46. 100. The translation is that of Dougherty, The Shirkûtu, 35. 101. YBT 7:66, line 12, in ibid.

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no mention of what would happen to her sons under these circumstances.102 This is all the more intriguing in the light of a different case,103 where a grandson (Shamash-shum-iddin, whose mother, Silim-Ishtar, was the daughter of Ñarshinana, a širku) provides a witness to testify that his grandmother was not consecrated to the temple at Erech until after he was born.104 From this Dougherty concludes: “In other words, the status of the offspring was affected to at least the third generation. On the other hand, it may be assumed from this document that the absence of the star mark freed the offspring of a širku from the obligations of the order.”105 In these cases the language of the Neo-Babylonian formulations is particularly informative,106 where the conventional terminology—ana širknjti ana DNnadƗnu, “to give to DN for oblate temple service”107—was employed.108 In relation to the consecration of Levites, Edward LipiĔski explains that “since the Levites take the place of the netînîm here,109 and 102. Dougherty concludes that “the reason for this court trial may have been an attempt on the part of Shamash-zêr-ushabshi to sell Nubtâ or to marry her to a slave. If such was the case the document represents the successful appeal of the širkûtu for justice,” ibid., 36. 103. REN 224, lines 1–26, in ibid., 36–37. 104. “The chief of¿cer (?) of Erech, the administrator of the Eanna and the chief of¿cer of the king, brought Babunu and the oath of the gods and the king in the assembly; she swore as follows: ‘The star and brandings upon the hand of Ñarshinana, the female slave of Nâdina-a¨u, my uncle, before she gave birth, for the širkûtu to the Bêlit of Erech consecrated, I did not see’,” REN 224, lines 18–24, in ibid., 37. 105. Ibid., 38. 106. Their status was commonly denoted by the term “širku, ‘dedicated,’ or ‘bestowed,’ from the verb šarƗku, ‘to present.’ It is usually written with the logogram PA.KAB.DU, but phonetic spellings also occur relatively frequently: ši-ra-ak, ši-ra-ku/ki (in special cases: ši-ik-ka/ku ši-ik-na, šim-ki, etc.), with the feminine determinative (f) šir-kat (f) šir-ka-tum, and in the abstract sense of the word (amƝl) šir-ku-û-tu,” Dandamaev, Slavery in Babylonia, 469. 107. E. LipiĔski, “Ėġė nƗtan,” TDOT 10:90–108 (106). 108. Variations of the phrase are also known, including: “ana (amƝl) širknjtu zukkû/nadƗnu: to dedicate or to devote to temple slavery,” Dandamaev, Slavery in Babylonia, 472. Further alternative forms, with širku/širkatu in place of zakû/zakƯtu, occur; see ibid., 469. 109. “Hebrew nƗtan may, in certain contexts, speci¿cally connote compulsory assignment to cultic service, where the recipient is a deity or a religious establishment. Thus Joshua ‘consigned’ the Gibeonites (Hebrew wayyittenƝm, ‘he consigned them’) to cultic service (Josh 9:27). Cultic servitors are known as netînîm, ‘devoted cultic servitors’, in Ezra 2:43. In Akkadian, the verb šarƗku, ‘to donate, hand over, devote’, is used in the same way, and the Neo-Babylonian documents actually speak of temple servants called širkûtu ‘devotees’,” B. A. Levine, Numbers 1–20: A New Translation with Commentary (AB 4A; New York: Doubleday, 1993), 278. 1

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Aaron that of Yahweh (cf. Nu. 18:6), the consecratory formula of the neŠînîm, a formula also familiar to the Priestly redactor, must also have been nƗtan PN netîn(â) leYHWH, ‘give PN to Yahweh as a consecrated one’.”110 This accords also with the earlier interpretation of the use of the verb Ėġė (meaning “to give”) in the Covenant Code, which quali¿ed the value, or acquisition, of a wife and her appropriate return to her rightful owner.111 This outline of consecratory formulae (where the Levites are “assigned” to the service of Aaron) con¿rms LipiĔski’s proposal that “the consecratory formula of the neŠînîm, a formula also familiar to the Priestly redactor, must also have been nƗtan PN netîn(â) leYHWH, “give PN to Yahweh as a consecrated one”:112 The Priestly Consecratory Formulae You shall assign the Levites ĔĐČēċĀġć ċġġėČ to Aaron and to his sons: ČĐėĈēČ Ėğċćē they are formally assigned to him Čē ċĕċ ĔėČġė ĔėČġė from among the Israelites. ēćğĠĐ ĐėĈ ġćĕ Num 8:16 For they are formally assigned to Me Đē ċĕċ ĔėČġė ĔėČġė ĐĒ  from among the Israelites. ēćğĠĐ ĐėĈ đČġĕ Num 8:19 I formally assign the Levites ĔĐČēċĀġć ċėġćČ to Aaron and his sons ČĐėĈēČ Ėğċćē Num 18:6 I hereby take ĐġĎĞē ċėċ ĐėćČ  your fellow Levites ĔĐČēċ ĔĒĐĎćĀġć from among the Israelites; ēćğĠĐ ĐėĈ đČġĕ they are assigned to you ċėġĕ ĔĒē in dedication to the Lord, ċČċĐē ĔĐėġė to do the work of the Tent of Meeting. ĊęČĕ ēċć ġĊĈęĀġć ĊĈęē 1 Chr 6:33 And their kinsmen the Levites ĔĐČēċ ĔċĐĎćČ were appointed ĔĐėČġė for all the service of the Tabernacle ĖĒĠĕċ ġĊČĈęĀēĒē of the House of God. ĔĐċēćċ ġĐĈ Num 3:9

110. LipiĔski, TDOT 10:106. This terminology is not restricted exclusively to Priestly texts, as Hannah’s vow in 1 Sam 1:11 indicates: ĔĐĠėć ęğč đġĕćē ċġġėČ ČĐĐĎ ĐĕĐĀēĒ ċČċĐē ČĐġġėČ, “If you will grant your maidservant a male child, I will dedicate him to the Lord for all the days of his life.” The following variation is found in 1 Sam 1:27–28: ċČċĐē ČċġēćĠċ ĐĒėć ĔĉČ Čĕęĕ ĐġēćĠ ğĠć ĐġēćĠĀġć Đē ċČċĐ ĖġĐČ ċČċĐē ēČćĠ ćČċ ċĐċ ğĠć ĔĐĕĐċĀēĒ, “And the Lord granted me what I asked of him. I, in turn, hereby lend him to the Lord. For as long as he lives he is lent to the Lord.” 111. The use of Ėġė occurred in situations where no ¿xed price or negotiated rate was indicated, as in Exod 21:4 and 22:16 and also in Exod 21:23, where Ġěė ċġġėČ Ġěė ġĎġ, “the penalty shall be life for life,” indicated that the substitute provided for the victim’s dead wife was alive (and not vicariously killed). 112. LipiĔski, TDOT 10:106.

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In this context the descriptions of “the sons of Solomon’s servants.”113 are equally relevant. Here LipiĔski adds, “the Solomonic temple doubtlessly had slaves at its disposal, slaves that Ps. 68:19(18) calls mattƗtanôt. The neŠînîm (LXX nathinaíoi, nathinim or nathinin), however, are found only in the post-exilic temple. The expression is translated literally in 1 Chronicles 9:2 as hoi dedómenoi, ‘the given ones’, and Josephus correctly indicates their function with hieródouloi,114 as does 3 Ezra 1:3 where the Greek text preserves the sense of temple slave.”115 In this light, an additional širku dedication from Seluecia-on-the-Tigris, made to the god Nergal, dated to 225–224 BCE, con¿rms that the institution was not limited to Neo-Babylonian temples, where, “The donor was a man bearing a Greek name, Kebros, whose father was also a Greek. The slave or slaves were dedicated to the god for the life of the king and the donor.”116 These correlations invite separate discussion of Num 6:27, a verse which appears immediately after the Priestly blessing of Israelites:117 Thus they shall link My name with the people of Israel and I will bless them

ĐĕĠĀġć ČĕĠČ ēćğĠĐ ĐėĈĀēę ĔĒğĈć ĐėćČ

Of immediate concern here is that the NJPS translation of ĐĕĠĀġć ČĕĠČ as “thus they shall link My name” is questionable, since the verb ĔĐĠ is de¿ned elsewhere as “to put, place, or to set,”118 as evident from the 113. See Ezra 2:58; 8:20; Neh 7:60. 114. Ant. 11.5.1 §128. 115. LipiĔski, TDOT 10:105. 116. T. Doty, “A Cuneiform Tablet from Tell Umar,” Mesopotamia 13–14 (1978–79): 91–98 (98). For discussion of the ivy leaf brand of Dionysus, mentioned in 3 Macc 2:29, see both F. Mirguet, “Introductory ReÀections on Embodiment in Hellenistic Judaism,” JSP 21 (2011): 5–19 (16), and P. Alexander, “3 Maccabees, Purim and Hanukkah,” in Biblical Hebrew, Biblical Texts: Essays in Memory of Michael P. Weitzman (ed. A. Rapaport-Albert and G. Greenberg; JSOTSup 333; HBV 2; Shef¿eld: Shef¿eld Academic, 2001), 321–37. See also Wis 14:23. 117. The blessing in Num 6:22–26 states: “The Lord spoke to Moses: Speak to Aaron and his sons: Thus shall you bless the people of Israel. Say to them: The Lord bless you and protect you! The Lord deal kindly and graciously with you! The Lord bestow His favor upon you and grant you peace!” For a discussion of the sectarian expansion of this blessing in 1QS, see Bilha Nitzan, Qumran Prayer and Religious Poetry (STJD 12; Leiden: Brill, 1994), 145–71 and more recently Shani Tzoref, “The Use of Scripture in the Community Rule,” in A Companion to Biblical Interpretation in Early Judaism (ed. M. Henze; Grand Rapids: Eerdmans, 2012), 203–34 (218–22). 118. See the entry for “ĔČĠ, ĔĐĠ, meaning to put, place, set,” where its relationship to the Assyrian šâmu “to ¿x, or to determine,” is identi¿ed in BDB, 962–65. See also G. Vanoni, “ĔĐĠ Ğîm; ċĕČĠġ teĞûmâ,” TDOT 14:89–112. 1

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previous discussion of Gen 4:15 ġČć ĖĐĞē ċČċĐ ĔĠĐČ, where “the Lord put a mark on Cain.”119 This usage corresponds speci¿cally to that of the Akkadian verb šamâtu,120 which denoted placing the brand upon the širku, where Raymond Dougherty explains: “It is not easy to determine the relation of šamâtu to other Semitic roots. Apparently the idiom kakkabtu šamâtu = kakkabtu nadû. This suggests a possible connection between šamâtu and Hebrew ĔČĠ, ĔĐĠ, although there perhaps ought to be other proof before the theory of determinative origin is accepted.”121 Thus both the relevant active verbs, namely ĔČĠ, ĔĐĠ, together with Ėġė, recall their Neo-Babylonian equivalents (šamâtu and nadû) which in each language denoted the marking or inscribing of the name (or emblem) of a deity upon the body of a cultic devotee or slave. This background provides substantial support for the interpretation of Meir Bar-Ilan, in his paper of “Jewish Magical Body-Inscription in the First and Second Centuries,” where he proposes that the phrase ČĕĠČ ĐĕĠĀġć is to be understood primarily in “concrete terms,” and where the Priestly requirement is “literal and actual.”122 Bar-Ilan asserts that the name of God was written or placed directly on the hand, palm or forehead of the Israelite and that this was inherently an apotropaic rite, since those on whom the name of God was written were considered to be assured permanent divine protection. In addition to the sources identi¿ed earlier,123 Bar-Ilan locates this practice further in the tradition from Num 11:24–25, where God transfers his spirit upon the seventy Israelite elders, where the narrative states: “And two men remained in the camp. The name of the one was Eldad and the name of the other was Medad. And the spirit rested upon them, and they were among those inscribed,124 119. Compare also the description of Solomon’s consecration of the temple in 1 Kgs 9:3—“I have heard the prayer and supplication which you have offered to Me. I consecrate this House which you have build and I set my name there forever”— where the in¿nitive occurs: ĔĠ ĐĕĠĀĔČĠē. Likewise, where 2 Chr 33:7 provides: ĔēČęē ĐĕĠĀġć ĔĐĠć, “I will establish my name forever.” For the use of this formula in Deut 12:5, see S. L. Richter, The Deuteronomic History and Name Theology: lešakkƝn šemô šƗm in the Bible and the Ancient Near East (BZAW 318; Berlin: de Gruyter, 2002). 120. “It-ta-di comes from nadû = ‘to case’, ‘to place’ and hence its use in this connection is easily understood. The other verb is represented by aš-mit, iš-mi-tan-ni and še-en-di, the common root of which is šamâtu,” Dougherty, The Shirkutu, 83. nadû corresponds to the Priestly use of Ėġė, meaning “to give.” 121. Ibid., 85. 122. Bar-Ilan, “Jewish Magical Body-Inscription,” 3ñ2. 123. I.e. Gen 4:15; Ezek 9:4; Isa 44:5; Job 31:35, etc. 124. A literal translation of ĔĐĈġĒĈ ċĕċČ would be “they were among those inscribed.” 1

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but they did not go out from the tent and they prophesied within the camp.” His interpretation is complemented by the use of the Priestly blessing as an amulet, where the text of Num 6:22–26 has been identi¿ed on a silver scroll from Keteph Hinnom, dated to the seventh century BCE.125 Clearly the separate use of such amulets does not preclude the reality that the memory of inscribing the divine name(s) upon the human form is witnessed in the biblical sources. 4.5. The Gift of a Širku as “a Life for a Life” It also is apparent that the donation of a širku to a temple was not an entirely unconditional, “no strings attached,” gift. Moreover, the purpose of such gifts is highly suggestive, especially in relation to Jon Levenson’s assertion that both the consecration of Levites and the requirement of ¿nancial ransoms were effective substitutions for the requirement of child sacri¿ce. In this context, the donor’s reciprocal expectation of divine favour is explicit, as we see in an extant record of a slave dedicated to the goddess Ištar.126 Here we have the expression ana balât napšati šunu ana dIštar iddinu, “they gave for the preservation of their lives to Ishtar.”127 Likewise, anticipation of divine favour for the reigning monarch was also evident, as Dandamaev explains—in BRM 2:53, “a ¿ve year old girl was dedicated to the temple, ‘for the king’s wellbeing’.”128 The apotropaic bene¿ts of such dedications are evident, likewise, in Priestly memory, as Exod 30:12 con¿rms: “When you take a census of the Israelite people according to their enrolment, each shall pay the Lord a ransom for himself on being enrolled, that no plague may come upon them through their being enrolled,” where the ČĠěė ğěĒ, literally “ransom of his life,” recalls the purpose of the slave dedication: ana balât napšati, for “the preservation of their lives.” Equally relevant is the Priestly consecration of Levites in Num 8:16–19: 125. See G. Barkay, “The Priestly Benediction on Silver from Keteph Hinnom in Jerusalem,” Cathedra 52 (1989): 37–76 (Hebrew). 126. YBT 7:17, “Slave Dedicated to Ishtar,” reprinted in Dougherty, The Shirkûtu, 40–41. 127. This document was witnessed in Erech, the 14th of Kislev in the third year of Cyrus, as follows: “Nabû-a¨ê-bulliÓ, the son of Nabû-shum-ukîn, son of the priest of Enurta, and BulÓâ, the daughter of Bêl-ushallim, son of Kurî, his wife of their own free will, A¨-iddin, their slave for the preservation of their lives to Ishtar, gave,” ibid, 40–41, lines 1–8. 128. Dandamaev, Slavery in Babylonia, 472–73 n. 9. 1

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The Body as Property For they are formally assigned to Me from among the Israelites: I have taken them for Myself in place of all the ¿rst issue of the womb of all the ¿rst-born of the Israelites. For every ¿rst-born among the Israelites, man as well as beast, is Mine; I consecrated them to Myself at the time that I smote every ¿rst-born in the land of Egypt. Now I take the Levites instead of every ¿rst-born of the Israelites; and from among the Israelites, I formally assign the Levites to Aaron and his sons, to perform the service or the Israelites in the Tent of Meeting and to make expiation for the Israelites, so that no plague may afÀict the Israelites for coming too near the sanctuary.

Đē ċĕċ ĔĐėġė ĔĐėġė ĐĒ ēćğĠĐ ĐėĈ đČġĕ ĔĎğĀēĒ ġğďě ġĎġ ēćğĠĐ ĐėĈĕ ēĒ ğČĒĈ Đē Ĕġć ĐġĎĞē ēćğĠĐ ĐėĈĈ ğČĒĈĀēĒ Đē ĐĒ ċĕċĈĈČ ĔĊćĈĈ ĜğćĈ ğČĒĈĀēĒ ĐġĒċ ĔČĐĈ 129 Đē Ĕġć ĐġĠĊĞċ ĔĐğĝĕ ĔĐČēċĀġć ĎĞćČ ēćğĠĐ ĐėĈĈ ğČĒĈĀēĒ ġĎġ Ėğċćē ĔĐėġė ĔĐČēċĀġć ċėġćČ ēćğĠĐ ĐėĈ đČġĕ ČĐėĈēČ ēćğĠĐ ĐėĈ ġĊĈęĀġć ĊĈęē ĊęČĕ ēċćĈ ēćğĠĐ ĐėĈ Āēę ğěĒēČ Ěĉė ēćğĠĐ ĐėĈĈ ċĐċĐ ćēČ ĠĊĞċĀēć ēćğĠĐ ĐėĈ ġĠĉĈ

The scholarly consensus, as Timothy Ashley explains, is that the phrase ĔĎğĀēĒ ġğďě, “the opener of the womb,”130 indicates “that the Levites are the divinely ordained substitutes for the ¿rstborn of Israel.”131 According to the census provided in Num 3:39–43, their replacement was operative until the number of ¿rst-born Israelite males totalled 273 more than the available number of eligible Levites, at which time monetary substitution was instituted: “¿ve shekels per head—take this by twenty gerahs to the shekel—and give the money to Aaron and his sons, as the redemption price for those who are in excess.”132 Here association 129. Au contraire Jacob Milgrom, who explains the expression, Đē Ĕġć ĐġĠĊĞċ, “I consecrated them to Myself,” as follows: “It should be noted that the Levitical status is never designated by the root k-d-sh, for in contrast to the priests, they are like any other Israelite laymen in terms of status. Hence, the Levites, unlike the priests, can never have access to the stationary sancta.” J. Milgrom, The JPS Commentary: ğĈĊĕĈ Numbers (Philadelphia: Jewish Publication Society, 1990), 64 n. 16. 130. “The Hebrew verb pƗÓar is rare in Biblical Hebrew. It means ‘to loose, dismiss, send forth’ (1 Sam 19:10; Prov 17:14) and is cognate to Akkadian paÓƗru (AHw 849–51, paÓƗru). In 1 Kgs 6:18 peÓûrê ÑîÑîm seems to mean ‘Àoral reliefs’, conveying the sense of ‘protrusion’ basic to the sense of the verb pƗÓar. On this basis peÓer reÜem (Num 18:15) and the feminine piÓrat re­em (Num. 8:16) would mean ‘offspring of the womb’,” Levine, Numbers 1–20, 157. 131. T. M. Ashley, The Book of Numbers (Grand Rapids: Eerdmans, 1993), 172. 132. As Num 3:47–48 and also 18:16. 1

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with the ¿nite, or strict sense application of the talionic Ġěė Ġěė ġĎġ, “life for life,” principle is explicit, where the consecration of the Israelite ¿rst-born (redeemed from Pharaoh’s decree of death) is presented as a simultaneous occurrence to the activation of the tenth plague (indicating death to Egypt’s ¿rst-born males). Once again, the talionic ġĎġ preposition, translated here as “instead of,” rather than “for,” reÀects in ¿nite or “strict sense” provision of live human substitution, given the accepted interpretation that the consecration of the Levites pre¿gured their active service in either the wilderness sanctuary, or the ¿rst temple: Now I take the Levites ĔĐČēċĀġć ĎĞćČ instead of every ¿rst-born of the Israelites; ēćğĠĐ ĐėĈĈ ğČĒĈĀēĒ ġĎġ These sources additionally inform the subsequent rabbinic rite of the ĖĈċ ĖČĐĊě ğĊĘ, Service for the Redemption of the First-born, where the requirement of monetary redemption replaces the dedication of the ¿rstborn Levite male in contemporary Jewish practice. Its apotropaic signi¿cance is evoked in the accompanying prayer, where its relationship to “life for life, eye for eye, tooth for tooth” talionic formulation is all the more striking. In this rabbinic rite, the father gives the Cohen the relevant coins which are then held over the boy’s head, as the following liturgy is recited: This is instead of that, ċč ġĎġ ċč this is in exchange for that, ċč ĚČēĎ ċč this in redemption for that.133 ċč ēČĎĕ ċč In this rabbinic revision the father’s payment to the Cohen constitutes the replacement for the consecration of his ¿rst-born male, underlining the requirement for child sacri¿ce and where the salvation (and consecration) of Israel’s ¿rst-born was presented as a consequential sequence of the tenth plague, the killing of Egypt’s ¿rst-born,134 in biblical memory. As Ya’akov Ariel observes, “what is remarkable about the procedure is that it survived beyond biblical times, long after the Temple was destroyed and its Priestly class dispersed, and continued during eras in which Jews had no recollection, not to mention inclination, of offering their ¿rstborns to God.”135 133. “Service for the Redemption of the Firstborn,” in Sacks, The Authorized Daily Prayer Book, 812–13. 134. Levenson, The Death and Resurrection, 47. 135. Y. Ariel, “Still Ransoming First-Born Sons? Pidyon Habben and Its Survival in the Jewish Tradition,” in Human Sacri¿ce in Jewish and Christian Tradition (ed. K. Finsterbushe, A. Lange and K. F. Diethard Römheld; Studies in the History of Religions 112; Leiden: Brill, 2007), 305–20 (308). 1

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While these traditions presuppose the donation of a live human being dedicated to the cult, other sources indicate that consecration of a child (or devotee) may have, alternatively, entailed their sacri¿ce. Such indications are evident in the personal dedications and their accompanying surety clauses (or “Personenweihungen in Vertragssicherungsklausein”)136 present in cult donations from the eighth century BCE. These specify that the child was to be burnt alive as a sacri¿ce to the named deity, often for the atonement of sin. In view of the fact that the gods who were the recipients of these gifts (namely Adad, BƝlit-Ñeri and Sîn) were associated with temples in northern Syria, it is assumed that these provisions originated initially in that area. They are listed by Karen Radner as follows: 1. “Weihung des Erbsohnes an Sîn” (The Dedication of a Son and Heir to Sîn), where the surety clause states: apilšu ana rabû Sîn iqallu,“his oldest son he will burn for Sîn.”137 2. “Weihung der ältesten Tochter an BƝlit-Ñeri” (The Dedication of the Eldest Daughter), where the surety clause states: mƗrassu rabƯtû ana BƝlit-Ñeri išarrap, “his eldest daughter will be burnt for BƝlit-Ñeri.”138 3. “Weihung des Erbsohnes oder der ältesten Tochter an BƝlit-Ñeri” (The Sacri¿ce of the Son and Heir or Eldest Daughter to BƝlitÑeri”), where lnj apilšu rabû lu mƗrassu rabƯtû ana BƝlit-Ñeri iqallu, “his eldest son or his daughter will be burned to BƝlitÑeri,” occurs.139 While there is no separate corroboration (by means of cremated remains or other archaeological evidence) to indicate that actual human sacri¿ce took place in any of these accounts,140 it is possible that the inÀuence of these (or similar) dedications is reÀected in the biblical accounts of child sacri¿ce (i.e. Exod 22:28–29; 34:19–20; 2 Kgs 3:26– 27, and possibly also in the underlying context of Exod 4:24–26). These accounts are thus relevant also to the prophetic rebukes presented in 136. VII.3.D.a.6.1- 6.1.5 in K. Radner, Die neuassyrischen Privatrechtsurkunden als Quelle für Mensch und Umwelt (SAAS 6; Helsinki: Neo-Assyrian Text Corpus Project, 1997), 211–18. 137. Ibid., 214. 138. According to Karen Radner, in this case the girl was not killed; rather, valuable cedar wood and balsam was ceremonially burnt, after which she was transferred to the authority of the temple. See ibid., 215. 139. Ibid., 216. 140. Ibid., 211. 1

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2 Sam 12:13–14141 and Mic 6:7, both of which are clear references to vicarious punishment for parental crimes: “Shall I give my ¿rst-born for my transgression, the fruit of my body for my sins?”142 The rhetoric for such measures is explicit further in the ninth-century BCE Kapara inscription and its concomitant curse: mannu ša šuma ipaššiÓuni šuma išakannjki 7 mƗres pƗn Adad lišrupnj 7 mƗrƗtešu ana IssƗr harimƗte luramme (“whoever it is who uses my name in vain, who removes my name and puts his name in its place, seven of his sons will be given to the mercy of Adad to be burned and seven of his daughters, he will give to Issar for prostitution).143 Once again, this inscription does not verify the incidence of child sacri¿ce. In summarizing the main points of this chapter, the requirement to pierce of the slave’s ear (Exod 21:6 and Deut 15:16) indicates that physical dis¿gurement functioned in biblical law to verify legal property acquisition when changes in the status of dependants were formalized. This awl mark was not intended to deter the slave from escaping, since according to the biblical text, his indenture was voluntary, although this was not the case when an owner’s name was inscribed upon the slave’s hand, wrist or even forehead, as suggested in non-biblical sources. In this context the legal status of a slave was crucial in determining the status of their children, a pre-requisite also for the status of the Neo-Babylonian širku (“oblate” or “devotee”), whose grandchildren would remain in the service of the temple. Further signi¿cant features can be identi¿ed as follows: x

x

First, in terms of the dis¿gurements witnessed in the prophetic corpus, these each visibly identify the protected servant of God, providing substantial support for Meir Bar-Ilan’s interpretation of the Priestly blessing, which he has suggested was placed on the forehead or hand of the Israelite worshipper. Secondly, the linguistic correlations between the Akkadian formulation ana širknjti ana DNnadƗnu, “to give to DN for oblate temple service,” and the Priestly consecratory formula (Num 3:9; 8:16, 19, etc.) indicates that formulaic parallels for the dedication of cult personnel existed in the pre-history of biblical tradition.

141. The death of David and Bathsheba’s ¿rst child is rationalized by the prophet Nathan in 2 Sam 12:13–14 as follows: “The Lord has remitted your sin, you shall not die. However, since you have spurned the Lord by this deed, even the child about to be born to you shall die.” 142. Exod 20:5; 34:7; Lam 5:7, and Isa 14:20–21 are relevant for “the sins of the fathers upon their children.” 143. Radner, Die neuassyrischen Privatrechtsurkunden, 211. 1

220

x

x

The Body as Property

Thirdly, the širku institution illuminates the objectives of both the Priestly consecration formulae and of physically marking Israelites, since it is in this context that the branding or tattooing of the mark of the deity (or temple) onto the bodies of the dedicated servants is attested in cuneiform records from the NeoAssyrian and Neo-Babylonian periods. Fourth and ¿nally, given the suggestion that circumcision originally developed as a substitution rite for child sacri¿ce, it is possible that the biblical accounts of transgenerational punishments could also reÀect the indirect inÀuence of Neo-Assyrian cult formulations, particularly the “Personenweihungen in Vertragssicherungsklausein,” or personal dedications and their surety clauses.

Like the cut of circumcision, the marking of the faithful in prophetic sources and the formal consecration of Levites, the act of piercing a slave’s ear formally identi¿ed Israel’s permanent dependants, and in this respect veri¿ed legitimate property acquisition in biblical law.

1

Chapter 5

CONCLUSIONS

I now return to the ¿rst research question posed: Are any general principles regarding the dis¿gurement of the human body evident in biblical law? The answer to this question lies less in the need for the creation of any “semblance of order,”1 and far more in formalizing Israel’s legitimate authority and control of her dependants. This corresponds also to realities observed separately in the discipline of evolutionary biology, where “propriety entitlement thus rests upon a social contract: Property owners reciprocally acknowledge and cooperatively enforce one another’s claims.”2 While social and contractual relationships characterize all the laws examined in this study, the legal enforcement of competing claims is restricted exclusively to the adult, Israelite male in the Hebrew Bible.3 Writing (and the cuneiform script in particular) developed in Sumer for the purpose of record keeping: to provide proof of ownership—most commonly of grain, cattle or slaves—precisely to acknowledge legal entitlement. Legitimate property acquisition was all-the-more crucial for a nation of escaped slaves, who, by their own account, had conquered and dispossessed the indigenous inhabitants of their promised land. Accordingly, physical dis¿gurements served to enforce legal entitlement, and verify property ownership, in the framework of biblical law. This suggestion is corroborated, in the ¿rst instance, by the speci¿cation of circumcision, where the impetus to validate the status of male members as Israelites, by means of cutting the Àesh of their foreskins, constitutes also a mark of proprietary genealogical entitlement. This is evident even if circumcision was originally intended as a substitution rite for child sacri¿ce: a possibility only partially explored in this study. The act of circumcision quali¿ed Abraham’s divinely chosen successors, and served to ensure that only the descendants of Isaac and then Jacob were the legitimate recipients of the blessings and promises bestowed in the 1. Douglas, Purity and Danger, 5. 2. Wilson and Daly, “The Man Who Mistook,” 289. 3. Kawashima, “Could a Women Say ‘No’?”

222

The Body as Property

patriarchal covenants: namely, wealth, progeny and land. This was achieved through the timing of the cut at the age of eight days old, rather than at the age of thirteen years, in order to differentiate Isaac’s status from Ishmael’s.4 Thus, in symbolic terms, circumcision embodied the ĔĐğġĈċ ĖĈ ġĐğĈ, “the covenant between the pieces,” on the organ of the Israelite male, where his Àesh-cut foreskin physically represented the ritually cut carcasses in the formalities rati¿ed in Gen 15:10. In subsequent rabbinic thought, this rite was additionally understood as a seal marking not only male membership of the Israelite ethnic group, but also the exclusive service to his God; a perception underlying the dis¿gurements attested also in prophetic tradition, notably Isa 44:5 and Ezek 9:4–6. While there is no precise indication of either the nature or size of the prophetic dis¿gurements,5 it is evident that they served the same purpose as the brandings applied to the Neo-Babylonian širku, where both the status of the oblate and the temple in which they served were formalized. This reality provides considerable support for the view that Num 6:27— ēćğĠĐ ĐėĈ ēę ĐĕĠĀġć ČĕĠČ, “so they shall put my name on the Israelites”—indicated that the name of God was written or placed directly on the hand, palm or forehead of the Israelite, as Meir Bar-Ilan has suggested. Likewise, the ear-piercing of the Israelite slave, which rendered proof of his or permanently indentured status, provided visible acknowledgment of legitimate property acquisition, irrespective of whether any suggestion of punishment was implied by this action. Legitimate property values were also relevant to the punitive physical dis¿gurements presented in the talionic formulation in Exod 21:22–23, where the retaliatory mutilation of women was of concern only as an infringement of male property rights.6 In terms of Exod 21:22–25, it has been suggested that vicarious talion was prescribed for the wife of a male assailant, with no mention of any “rest” or “cure” for the injured woman,7 based on the terminological correlations between the Covenant Code and Assyrian legal traditions. Here, the biblical laws mandated acceptable levels of physical abuse,8 which are exempli¿ed separately in 4. As indicated in Gen 17:25. 5. Other than those indicated in Job 31:35 or Isa 44:5, for example. 6. That this was not the objective of the talionic punishment speci¿ed in Lev 24:19–20 or Deut 19:21 (where substantial restatements of the Covenant Code formulation were provided) does not affect the validity of this interpretation. 7. Unlike Exod 21:19, which speci¿es ¿nancial compensation for injuries to male: “he must pay for his idleness and his cure.” 8. A suggestion supported further by the analysis of Deut 25:11–12. 1

5. Conclusions

223

narrative sources, including (for example) the descriptions of Abraham’s actions in the “disposable wife”9 accounts, Lot’s response when offering his daughters to the violent mob (Gen 19:9), and in the mutilation of the Levite concubine (Judg 19:29–30). Nor did the biblical provisions for rape (be it forced, or by means of seduction) of the Israelite daughter warrant prohibition, let alone advocate any restraint on the part of the rapist. The law was concerned only with paying the girl’s father the appropriate amount for his potential “bride-price” loss, thereby con¿rming the “proprietary”10 use of vulnerable women in biblical law: By “proprietary,” we mean ¿rst that men lay claim to particular women as songbirds lay claim to territories, as lions lay claim to kill, or as people of both sexes lay claim to valuables. Having located an individually recognizable and potentially defensible resource packet, the proprietary creature proceeds to advertise and exercise the intention of defending it from rivals. Proprietariness has the further implication, possibly peculiar to the human case, of a sense of right and entitlement.11

It is this conception of right and entitlement that is at the crux of the punitive mutilations of women. It is equally relevant to dis¿gurement of both slaves and minors, where the marking of the Hebrew slave’s ear and the circumcision of the eight-day-old boy reinforce the legal entitlement of their owners or parents. In response to the second question posed—Is the mutilation of women unique to biblical tradition or a subsequent adaptation of normative ancient convention?—it is also clear that the biblical speci¿cations were distinct adaptations of normative legal convention, modelled closely on the status of women in Babylon society. Wilfred Lambert con¿rms that, legally, wives were not independent beings. Accordingly, As girls they grew up under their fathers, or brothers collectively should their father have died. At marriage they were transferred to a new ‘owner’ so that they continued to be legal non-entities. The law recognized them and indeed protected their interests, but did not try to change their status as belonging to the property of the appropriate male relative.12

9. Gen 12:10–20 and 20:1–18 are dubbed “the disposable wife” stories by Tikva Frymer-Kensky, Reading the Women of the Bible: A New Interpretation of Their Stories (New York: Schocken, 2002), 93–97, as was Gen 26:1–11, where Isaac passes off Rebecca to Abimelech as his sister. 10. Wilson and Daly, “The Man Who Mistook,” 289. 11. Ibid. 12. Lambert, “Prostitution,” 133. 1

224

The Body as Property

It is also highly signi¿cant that a number of the biblical laws and expressions are then evocative of the punishments recorded in the Middle Assyrian Code, given its notorious brutality. From the various correlations examined, possibly the most noteworthy is the correspondence in the formulation of Ġěė ġĎġ Ġěė, “a life for a life,” in Exod 21:23 and the Middle Assyrian principle, kimu ša libbiša napšate umalla,13 where the interpretation of “a life for a life,” denoting live, human substitution, is evident. This is not to minimize the importance of the Babylonian parallels, where wardam kƯma wardim, “a slave of comparable value for a slave” (LH 231), is relevant, as was the ¿nite, or strict sense expression of talion attested in LH 196, 197 and 200,14 but rather to acknowledge rightfully that individual elements of Assyrian legal tradition are also reÀected in the Covenant Code. Further terminological correlations with Middle Assyrian forms include the ğĠćĒ formulation of talion,15 with MAL A50, line 67, where we read kî ša epušušini eppušušu, “and they shall treat him as he treated her.” The injunction ćē đėĐę ĘČĎġ, “nor must you show pity” (Deut 25:12), may also be related to the Akkadian, la uballuÓuši, “they shall not spare her life,”16 from the Middle Assyrian Palace Decrees (or Harem Edicts), although to date this has only been associated with the crime of blasphemy in Lev 24:10– 23.17 Not least important is the signi¿cance of the “name” (Akkadian šumu) and “seed” (Akkadian zaru) invoked in Esarhaddon’s Succession Treaty. Its use in Priestly, Deuteronomic and prophetic traditions is highlighted further by its appearance in epigraphic (Aramaic) sources from the seventh century BCE from Aleppo, in Second Temple texts, and also within the Dead Sea Scrolls. Such symbolism provides an eloquent example of the use and proliferation of a literary motif in its transmission of over a period of 500 to 600 years. Finally, the suggestion that the biblical memories of child sacri¿ce18 could reÀect the various “Personenweihungen in Vertragssicherungsklausein”19 in Neo-Assyrian 13. As in MAL A50 lines 68–69, 73, 81 and MAL A52, line 91, ¿rst recognized by Driver and Miles, The Assyrian Laws, 113; Jackson, “The Problem of Exodus XXI 22–25,” 293, and Wisdom Laws, 211; and Malul, Law Collections, 205. 14. The correspondence between ğĈĠ ġĎġ ğĈĠ, “fracture for fracture,” in Lev 24:20, and “If he shall break the bone of another awƯlu they shall break his bone,” in LH 197, may be incidental since correlations in Priestly and Babylonian law are not otherwise evident. 15. Jackson, Wisdom Laws, 197–99. 16. Roth, LCMA, 202. 17. Paul, “Biblical Analogues,” 346–50. 18. Particularly Exod 22:28–29; 34:19–20; 2 Kgs 3:26–27. 19. Radner, Die neuassyrischen Privatrechtsurkunden, 211–18. 1

5. Conclusions

225

cult sources from the eighth century BCE is uncertain, although these do evoke the use (and prohibition of) trans-generational punishments in Pentateuchal law.20 Just as in Mesopotamia, where “destiny was inscribed into the world,”21 the biblical dis¿gurements were equal testament to the destiny of the Israelites, both cut and inscribed upon their physical forms, as Gen 17:13 asserts: “Thus shall my covenant be marked in your Àesh as an everlasting pact.” Likewise, “it is through the individual body that the life of a people—and the level of humanity they have achieved—perpetuates itself.”22 This premise is readily apparent also in the treatment of the human body in biblical law.

20. The examples in 2 Sam 12:13–14 and those mentioned in Mic 6:7 (although indicative of vicarious punishment) are insuf¿cient to support more substantive correlations with the Neo-Assyrian dedications. 21. Bahrani, Rituals of War, 98. 22. C. Mopsik, “The Body of Engenderment in the Hebrew Bible, the Rabbinic Tradition and the Kabbalah,” in Fragments for a History of the Human Body: Part One (ed. M. Feher; New York: Zone, 1989), 49–73 (49). 1

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INDEXES INDEX OF REFERENCES HEBREW BIBLE Genesis 1:27 1 4:15 200, 204, 214 4:25 97 6–8 25 9:6 70 9:16 79 9:22–23 167 12–15 44 12:1–10 204 12:1–9 36 12:1–7 36 12:2 36, 160 12:3 36 12:4–5 36 12:7 36 12:10–20 223 15 36, 40, 79, 145 15:1–21 39 15:1–16 204 15:1 36 15:2–3 36 15:2 36, 79 15:4–18 36 15:4 36, 40 15:5 36 15:6 42 15:7–21 62 15:7 36, 44, 65 15:8 79 15:9–18 39 15:10 36–38, 40, 222 15:17 37, 38 15:18–21 40

15:18–19 15:18 16:9–12 16:15–16 17 17:1–22 17:1–21 17:1 17:4–21 17:4 17:9–14 17:11–14 17:11 17:12–13 17:12 17:13–14 17:13 17:14 17:17 17:18 17:20–21 17:23–27 17:23–25 17:25 17:26 18:2–8 19:5 19:9 19:10–11 19:11 19:14 20:1–18 20:6

40 37, 40, 160 40 40 28, 133 204 27, 28, 42, 44, 64 34, 44 36 60, 64 3, 35, 46, 195, 200 167 67 43, 65 42, 44, 65 47 225 46, 47, 62, 65 42 42 44 3, 195 167 43, 64, 222 42 39 137, 188 137, 223 137 174 159 223 58

21:18 21:22 22:2 22:4–10 22:12 22:13 22:16 24:8 25:4–6 25:5 26:1–11 26:26 26:30 31:39 31:42 31:53 31:54 32:11–12 32:23–24 32:25 32:26 32:32 32:33 35:8 35:11 35:15 36:33 36:34 36:35 36:36 36:37 36:38 36:39 37:26 37:31 39:7 40:11

79 38 54, 61 62 54 35, 50, 54, 99, 129 54 39 41 64 223 38 38 101 59 59 38 167 167 166 166 166 166 178 167 45 97 97 97 97 97 97 97 97 128 139 171

248

Index of References

Genesis (cont.) 42–45 100 42:4 88, 100 42:6 100 42:19–20 100 42:21 100 42:22 101 42:37 102 42:38 88 43:8–9 101 44:29 100 44:30 101 44:32–34 97, 101 46:26 166 Exodus 1:22 4:24–26 4:25 4:26 10:2 11:1 11:5 12:13 12:15–20 12:19 12:23 12:25–26 12:29 12:43–49 12:44 13:8 13:9 13:14 13:16 20:5 20:19–23:33 21 21:2–6 21:2 21:3 21:4

21:5 21:6

21:11–12 21:12–14 21:12–13 21:12 21:13 21:14 21:15

21:16 21:17 81 29, 58, 60, 134, 218 167, 183 58 201 51 51 129 8 47 51, 129, 199 151 82 46 43 151 65, 204 151 65, 204 61, 125, 219 11 80 191, 193 193 193 112, 116, 193, 194, 212

21:18–19

21:18 21:19–22:23 21:19

21:20–21 21:20 21:21 21:22–25

21:22–24

21:22–23 21:22

194, 196 3, 190, 192–94, 198, 199, 219 111 114, 141 92, 118 109 109 84, 109 12, 109, 139, 152, 188 109 12, 109, 139, 152, 188 84, 85, 90, 92, 94, 111, 141 85 76 93, 112, 113, 116, 117, 223 84, 85, 93, 142 85, 87 85 4, 10, 84, 93, 120, 146, 185, 187, 222 69, 82, 94, 96, 117, 118, 160 88, 100, 174, 222 84–86, 88, 90, 91, 93, 108, 110, 113, 116, 117, 142, 159

21:23–25

21:23–24 21:23

21:24–25

21:24

21:25 21:26–27 21:26 21:27 21:29 21:33–35 22:2 22:3 22:8 22:9–12 22:10 22:11 22:12 22:13–14 22:13 22:14 22:15–16

70, 77, 85, 93, 94, 142, 187 69 83, 84, 86–88, 93, 95, 97, 108, 113, 117, 121, 129, 159, 174, 178, 186, 187, 212, 224 84, 85, 87, 89, 117, 189 70, 84, 85, 89, 93, 117, 124, 135, 145, 146, 154 93, 117 84, 85, 87, 90, 142 93, 117, 151 93, 117 109 118 110, 111, 116, 186 110–12, 116, 186 111, 112, 116, 186 21 111, 112, 116, 186 90, 111, 116, 186 112 111 111, 116, 186 111, 186 46, 70, 111

Index of References 22:15 22:16 22:18 22:24–26 22:28–29 24:8 27:21 28:36–38 28:42 29:20 30:12 31:12–17 34:7 34:19–20

Leviticus 1:3 1:10 3:17 4:33 7:20 7:36 8:23–24 9:14 10:9 12:3 14:14 14:17 15:2–18 16:32 17:4 17:7 18:6–17 18:6 18:7–19 18:20 18:21 18:22 18:23 18:29 19:23 19:27–28 19:28

112, 116, 186 112, 116, 186, 212 109 7, 8, 12 49, 218, 224 37, 39 44 203 167 196 215 65 125, 219 49, 218, 224

60, 62 60, 62 44 60, 62 47 44 196 47 44 61 196 196 167 97, 98 47 44 167 161 45 45 49 45 45 47 33, 34 3 207

19:34 20:2–3 20:6 20:9

20:15 20:17 21:5 21:17–23 21:17–21 21:17–20 21:17 21:21 21:23 22:3 22:20 22:21 22:24 22:27 23:6 23:14 23:21 23:31 23:41 24 24:3 24:10–23 24:13–16 24:17–21 24:17 24:18–20 24:18

24:19–20 24:19 24:20

142 49 47 12, 109, 139, 152, 188 109 167 208 121 191 170 200 200 200 47 121, 200 121, 200 47 61 8 44 44 44 44 80 44 126, 224 120 118 95, 119, 186 4 95, 118, 119, 121, 122, 186, 187, 189 70, 174, 187, 222 119, 127, 130 70, 71, 118, 119, 124, 127, 130, 135, 146, 155,

249

24:21 24:23 25:5 25:11 25:39–46 25:39–42 25:39 25:46 26:42 27:19 Numbers 1:2 1:18 1:20 3:9 3:39–43 3:47–48 5:21 6:21 6:22–26 6:27 8:16–19 8:16 8:18 8:19 11:24–26 12:14 14:28 15:5 15:14 15:37–40 15:38–40 16:14 18:6 18:15 18:16 19:2 25:1–5 25:2 25:13 25:16–18 25:17 25:18

178, 186, 189, 224 119, 187 120 34 34 191 191 200, 210 200, 210 61 118

160 160 160 212, 219 216 216 166 167 213, 215 205, 213, 222 215 212, 219 98 212, 219 214 180 130 35 130 65 200 131, 144 212 216 216 121, 200 145 132 133 133 133 133

250

Index of References

Numbers (cont.) 26:55 160 27:4 160, 184 28:17 8 32:14 97, 98 33:56 130 35:1–34 118 35:9–34 95 35:11 95 35:15 95 35:16–21 95, 109 35:18 81, 95, 109 35:21 118 35:22 118 35:30 126 Deuteronomy 1:36 2:5 2:12 2:21 2:22 2:23 4:41–43 5:18 6–8 6:8 6:20–21 11:10 11:18 11:24 11:25 12–26 12:5 12:31 13:6 13:12 14:1 15:12–17 15:12 15:13 15:14 15:15 15:16–17

180 180 98 98 98 98 95 45 65 45, 204 151 180 45, 65, 204 180 180 16 214 49 122 122 207 193 193 193 193 193 191

15:16

15:17 16:17 16:18 16:21 17:7 17:13 18:21 19:1–13 19:15–21 19:15–16 19:16–21 19:16–20 19:16 19:18 19:19 19:20 19:21

21:10–14 21:12–13 21:18–21 21:18 21:19 22:21 22:22 22:24 22:28–29 22:29 23:1–3 23:1 23:2–3 23:2 24:1 24:7 24:10–13 24:16

3, 190, 192–94, 196, 219 194, 198 121, 200 5, 122 121, 200 122 122 153 95 122 123 187 122 122 122 70, 122, 127, 130 94, 122, 123, 126 4, 70, 95, 118, 121, 124, 135, 146, 155, 174, 180, 186, 189, 222 46 168 12, 139, 152, 188 153 127 122 122 122 46, 70 112 169 161, 169 192 167 7 109 7, 8, 12 125

25:5–10

28:57 29:9 31–32 32:31 35:6

69, 73, 165, 179, 181, 182, 184, 185 14 73 4, 124, 127, 164, 165, 169, 170, 172– 74, 176– 78, 195, 222 69, 188, 189, 201, 224 183 38 75 90 179

Joshua 1:3 2:14 3:16 4:6–7 5:7 6:26 8:1 9:27 20:1–9

180 98 47 65 98 49 159 211 95

Judges 1:6–7 1:7 1:10–11 1:12–16 3:24 4:1–23 5:7 6:17 6:21 8:30 9:13 11:1–40 11:30–31

71, 129 130, 159 174 3 183 83 83 39 39 167 34 54 56

25:5 25:9 25:11–12

25:12

Index of References 11:34 11:36 13:7 13:19–20 14:3 15:7–21 15:10–11 15:10 15:11 15:18 16:1–4 16:1 16:2 16:4–22 16:4 16:21 16:28 16:30 19:29–30

1 Samuel 1:11 1:27–28 2:25 2:32–33 4:19 5:4 11:1–10 11:1–2 11:6–7 14:6 17:26 17:36 17:51 17:54 18:11 18:25 18:27 19:10 21:5 24:3 24:4 25:25 28:9 29:4 31:4

54 129, 131 40 39, 40 30 40 130 131 131 30 188 136 174 143 136 136 136 136 133, 145, 223

31:8–9 31:9

212 212 90 48 89 47 131 144 144 30 30 30 47 145 199 30 30 216 167 183 183 180 123, 186 144 30

14:25–26 15:16 16:20–22 18:9 18:18

2 Samuel 1:10 1:20 3:14 3:23 3:27 3:29 4:11–12 4:11 10:4–5 10:6 11:8 12:1–23 12:11 12:13–14

145 47

19:1 20:22 21:6–13 24:15–16

204 30 30 95 95 172 159 101 168 168 167 55, 60 55 56, 219, 225 161 123, 161, 186 71 55 55 71 140, 161, 164 99 47 131, 145 58

1 Kings 2:35 6:18 8:19 8:20 9:3 11:29–31 11:43 12:10 13:4 14:20 16:34 20:39 21:8

98 216 167 97 214 133 97 167 164 97 49 98 202

14:4–27 14:7

251 2 Kings 3:26–27 3:27 9:20 10:24 16:3 18:27 20:24 21:6 23:10 25:5–7 25:7 Isaiah 3:17 5:6 6:2 7:20 14:20–21 28:7 28:15 29:16 30:33 36:12 37:37 43:3 43:4 44:5

49:25–26 50:6 52:1 52:8 56:3–5 56:4–5 56:5 56:6 57:5 57:8 57:10 66:19

54, 218, 224 54 17 99, 129 49 183 98 49 49 143 174

169 34 167, 183 168, 183 125, 219 90 50 1 49 183 99 98 98 3, 45, 203, 208, 214, 222 204 180 30 124 161, 179 160 160, 162, 164, 178 161 49 157, 194 157 201

252 Jeremiah 4:6 4:20 7:31 9:24–25 9:25 18:6 19:4–5 19:5–6 22:23–25 22:24 25:23 31:29–30 32:20 32:35 34:5–7 34:8–10 34:10–16 34:14 34:18 34:19–20 34:20 35:13–15 39:7 49:32 50:15 52:9–11 52:11 Ezekiel 3:18 3:20 9:4–6 9:4–5 9:4 11:2–3 12:11 14:8 15:2 15:6 16:6 16:8 16:10 16:21 16:25 16:26

Index of References

119 119 49 63 168 1 49 49 202 202 168 125 201 49 143 132 191 117 38, 145 132 133 132 174 168 131 143 174

101 101 3, 201, 222 45, 192 202, 214 134 131 201 34 34 134 167 90 49 183 167

16:36 16:37 16:59 18:1–4 18:4 19:9 20:25–26 20:31 23:18 23:20 23:37–39 24:3–6 24:9–13 24:9 24:14 24:17 24:23 33:8 44:7–9 44:7 44:9

167 169 131 125 125 201 49 49 167 167 49 133 134 134 132, 134 204 204 101 30 167 47, 167

Joel 1:12 2:22

34 34

Amos 2:7–8 5:22

7, 12 49

Obadiah 15

131

Jonah 1:14

124, 186

Micah 6:6–7 6:7 6:8

49 56, 60, 219, 225 169

Haggai 2:23

202

Zechariah 11:17

143

Psalms 3:8 7:17 17:8–9 17:19 27:12 27:17 36:7 41:3 45:17 58:7–9 58:7 58:8–9 68:18 68:19 74:4 78:43 88:5–6 88:6 92:11 105:21 137:8 Proverbs 6:1 11:21 17:14 19:2 20:20 21:19 26:27–28 26:27 30:17

Job 1:12 2:1–6 4:10 16:4 17:3 21:25 27:19 29:17 30:10

147, 151, 152, 188 72 123, 186 72 123, 186 123 61 124, 186 97 151, 188 147 148 213 213 201 201 161 161 167 201 73

100 178 216 167 139, 140, 188 172 72 132 71, 140, 188, 189

58 58 147 99 100 124, 186 151, 188 147 180

Index of References 31:28 31:35 40:16

90 203, 214, 222 167

Song of Songs 5:4 157 5:5 166–68 8:6 202 Ruth 3:4 3:7 4:2 4:7–8 4:9–10 4:10

167, 184 167 185 185 184 160, 184

Lamentations 1:22 131 2:17 131 5:7 125, 219

1 Chronicles 6:33 9:2 2 Chronicles 6:9 10:10 25:1–4 33:7

212 213

167 167 126 185, 214

NEW TESTAMENT Matthew 27:27–29 55 Mark 15:16–20

55

253 20:4 22:4

201 201

APOCRYPHA Wisdom of Solomon 3:4 162 14:23 213 Ecclesiasticus 33:13 1 38:18 88 1 Maccabees 7:47

145

2 Maccabees 15:30–35

145

John 1:6 3:16 19:1–3

77 54 55

PSEUDEPIGRAPHA 3 Maccabees 2:29 213

Romans 9:19–21

1

4 Ezra 6:5

45

Esther 2:17 4:13 9:25

99 124, 186 72

1 Corinthians 5:7 55

Apocalyse of Elijah 1:9 45

Ecclesiastes 9:7–9 10:8–9

24 72

2 Corinthians 1:22 45 4:4 1

Odes of Solomon 8:13 45 8:19 45

Daniel 5:24 5:25 6:10 6:11

207 207 207 207

Ephesians 1:13 4:30

45 45

DEAD SEA SCROLLS 1QS 7:13–14 157

Hebrews 1:3

1

1QSa 2:7

121, 200

Revelation 7:2–3 7:3 9:4 14:1 17:5 19:12 19:16

45 201 45, 201 201 201 201 201

4Q218 27

162

4Q221 4

162

Ezra 2:43 2:58 8:20 9:4 Nehemiah 5:3 7:60

211 213 213 202

100 213

254 11Q19 LXIII 11–12 LXIII 8–9

Index of References

123 123

MISHNAH Bava Qamma 8:6 169 28a 171 Keritot 1:2 Makkot 3:6 Qiddushin 1:1–3 Shabbat 6:1 6:5 Sanhedrin 9:6 Sotah 1:8 TOSEFTA Bava Qama 10

48

Bava Qamma 84a 156 Gitin 86a

207

Makkot 21a 24a

208 125

Megillah 15b

204 204

48

Niddah 16b

39 ZOHAR 1.95a–b

207

JERUSALEM TALMUD Berakhot 9:3 60 9:14c 45

58 208

66

180

Qiddushin 22b 49a

195 185

Shabbat 57b 137b

204 45, 60

Sanhedrin 100b 111b

88 91

150

Makkot 4:15

Numbers Rabbah 9:6 151

TanÜuma-Yelammedenu 38 34

71, 136

60

Midrash TanÜuma 52.14 66 66.9 66 85.5 66

91

5 Nedarim 32a

Mekhilta de-Rabbi Ishmael 3:35 88 3:65 86

Pirke de Rabbi Eliezer 207 34, 35

208

Berakhot 7:13

Nedarim 3:14 21a

BABYLONIAN TALMUD Bava Metzi’a 6:3 118

MIDRASH Exodus Rabbah 5:8 58 Genesis Rabbah 11:6 2 85:9 128 160 34 Leviticus Rabbah 27:1 61

ANCIENT NEAR EASTERN SOURCES ADD 164 114 166 7–8 107 166 11–12 107 321 114, 115 618 114 806 114, 115 ARE 2.248 ARU 44 44.6–7 Ana Itti£u 7 iii 23–33

30

205 205 141, 153

BRM 2.53

215

CBS 10467

169

Index of References CDA 23

95

Emar will lines 20b–22

148

Esarhaddon’s Succession Treaty 70–71 § 38 249 163 250 163 251 163 252 163 253 163 254 163 255 163 256 163 257 163 258 163 249–58 162 Gilgame£ Epic VI.6 VI.7–8 XI.183–87 XI.189–95

138 138 81 81

LH 3 11–12 14 57 116 127 146 180 192–193 192 193 194 194 87 195 196–201 196–199 196

197 198 199

HL 7–8 7 8 11–12

143 146 146 155

KTU 1.23

33

LE 16 24 26 42 44 45 48 52 58

14 94 94 143, 146 155 179 94 191 94

200–201 200 201 206–214 206 207 208 209 210

211 212 213 214 218 219

94 179 109 21 107 168 191 96 139 139, 140, 153 71, 139, 140, 188 174, 175 175 155 96 141 20, 70, 82, 141, 146, 224 71, 119, 121, 224 21, 112, 119, 141 21, 119, 141 145 70, 146, 224 146 86 92 92 92 92, 107, 146 92, 93, 107, 108 (CH) 92, 146 92 92, 146 92 142, 155 142

255 220 226 227 229 230 231 253 266 273–274 282

142 155, 191 191 107 107 107, 159, 224 155 21 12 153, 195, 199

Epilogue lines xlviii 3–19

21

LI 120

182

LKA 135

198

LU 19 22

119, 146 146

MAL A4 A5 A8 A9 A30 A40 A44 A50

A50–A53 A50–53 A50–52 A51 A52 B2–B3 B2

175 175 172–78 174–76 113 196 196, 199 102–104, 106, 108, 113, 129, 224 146 115 86 105 105 113, 224 14 114

256 ND 2309 2316 5436

Index of References

205 205 205

CLASSICAL SOURCES Gaius Institutiones III 154 a–3 14

PPA 95

114, 115

Gortyn Code V: 28–34

14

REN 224

211

Herodotus Historiae 2.104 7.15 7.17

29, 63 57 57

Homer Odyssey Viii 62–4

137

SP 3:69 11:12 14:1 TAD B2:11 4–5

128 128 127

206

WDSP 2 line 2

207

Josephus Antiquities 11.5.1 §128

YBT 7:17 7:66

215 210

Against Apion 1.164–70 63 2.141–42 63

EGYPTIAN SOURCES Ahmose Inscription 18–19 158

Justinian Digest 10.2

213

14

Livy ix 29.11

137

Pausanius ii20.2

138

Philo Quaestiones et solutiones in Genesin 3.47 29 De specialibus legibus 1.4–7 29 1.9–10 29 Plutarch Alexander 3 73–74

137 57

Seneca the Elder Controversiae 4.2 170 Zaleucus VH xiii 24

138

INDEX OF AUTHORS Ahituv, S. 7 Aldeeb Abu-Sahlieh, S. A. 36, 37, 63 Alexander, P. 213 Alster, B. 127, 128 Alter, R. 42, 47, 61, 133, 165, 180, 207 Archer, L. J. 51, 58, 60, 63 Ariel, Y. 217 Ashley, T. M. 216 Avioz, M. 71

Cohen, J. 152 Cohen, S. J. D. 37, 45, 59, 63 Cohn, H. 70 Collins, N. L. 88 Cooper, J. S. 128 Copperman, Y. 135, 186 Cortez, M. 164 Craigie, P. 164 Cross, F. M. 52, 53

Bahrani, Z. 2, 5, 57, 99, 201, 225 Bar-Ilan, M. 201, 203, 214 Barkay, G. 215 Barmash, P. 95, 114 Bechtel, L. 143, 144, 183 Becking, B. 4 Bennett, H. V. 9 Berlin, A. 184 Berman, S. A. 34 Bernat, D. 33 Berquist, J. L. 56 Biale, D. 44 Black, H. C. 113 Blenkinsopp, J. 72, 127, 132, 140, 161, 202 Block, D. I. 202 Bottéro, J. 19, 57, 99, 100 Braidwood, L. S. 32 Braidwood, R. J. 32 Breasted, J. H. 30, 158, 159 Brod, H. 46 Brueggemann, W. 178 Buchanan, G. W. 38 Burkert, W. 13

Dalley, S. 81 Daly, M. 3, 4, 221, 223 Dandamaev, M. 209, 211, 215 Daube, D. 81, 96, 97 Davis, J. F. 135 Day, J. 50, 54 Delavault, B. 53 de Maaijer, R. 209 de Vaux, R. 52 Dobbs-Allsopp, F. W. 8 Donbaz, V. 197 Doty, T. 213 Dougherty, R. P. 5, 192, 203, 206, 209–11, 214 Douglas, M. 2, 72, 80, 120, 121, 221 Drazin, I. 170, 171 Driver, G. R. 95, 103–105, 113, 115, 163, 172, 175, 178, 186, 196, 224 Driver, S. R. 193, 194 Dunham, D. 30 Dušek, J. 10, 207

Cardascia, G. 69, 70, 104, 174 Carmichael, C. M. 97, 101, 179, 180, 184, 185 Chapman, C. 131, 132 Charpin, D. 148 Chinitz, J. 181 Cohen, C. 88, 90, 200

Ebbell, B. 30 Ebeling, E. 198 Edgerton, W. F. 157 Ego, B. 72 Eichler, B. L. 95, 105, 120 Eilberg-Schwartz, H. 33, 41 Eliade, M. 64 Elliott, J. H. 166–68, 170 Elman, Y. 76

258

Index of Authors

Eshel, E. 47, 162 Eslinger, L. 166, 167 Exum, J. C. 9 Fales, M. 10 Falk, P. 1 Farber, Z. 187, 188 Finkelstein, J. J. 76, 78, 80, 91, 146 Fleishman, J. 141, 153 Flusser, D. 60 Foster, B. R. 1, 80 Fox, M. V. 63 Frahm, E. 26 Frame, G. 183 Friedlander, G. 35 Frymer-Kensky, T. S. 37, 41, 48, 80, 223 Galpaz-Feller, P. 30, 31 Geller, M. J. 4, 5 George, A. R. 5, 13, 81, 138 Gibson, J. C. L. 8 Gifford, E. H. 55 Glick, L. B. 28, 49 Goldberg, H. E. 64 Gordon, C. 83, 177 Grayson, A. K. 17, 197 Green, A. R. W. 52, 57 Green, W. S. 28 Greenberg, M. 107 Green¿eld, J. C. 47, 159, 162 Greengus, S. 92, 93, 207 Greenspahn, F. E. 42 Gross, A. D. 207 Grunert, S. 30 Haase, R. 128 Hackett, J. A. 148–50, 198 Hall, R. G. 29 Hallo, W. W. 15 Hamilton, V. 48, 64, 65 Haran, M. 37, 39 Harris, R. 21 Hasel, G. F. 47 Hassan, A. 29 Hays, C. B. 59 Heider, G. C. 49, 50 Held, M. 149 Herion, G. 38

Hertz, J. H. 170 Heszer, C. 181 Hodges, F. M. 999 Hoffman, L. 32 Hoffner, H. A. 172 Horowitz, W. 4 Houtman, C. 23, 84, 94, 187, 204 Huehnergard, J. 148–50, 176, 198 Hurowitz, V. A. 1, 2, 21, 22, 24, 76, 191, 195, 198, 199 Hutton, R. 125 Illman, K. J. 111 Isser, S. 88 Jackson, B. S. 11, 39, 40, 69–71, 74–76, 78, 79, 81, 82, 85, 88–91, 94, 102, 104, 110, 118, 122, 129, 130, 135, 142, 186, 224 Jacobs, S. 9, 29, 63, 99, 105, 164, 189 Janssen, C. 96 Japhet, S. 78, 160, 161, 191 Jas, R. 107 Jastrow, M. 97, 171, 174, 179 Jay, N. 41, 42 Johnson, M. 2 Jonckheere, F. 32 Kanawati, N. 29 Kawashima, R. S. 83, 221 Keen, S. 35 King, P. 31, 32 Kister, M. 161, 162 Knohl, I. 28, 44, 200 Koschaker, P. 197 Kosmala, H. 59 Kraus, F. R. 19, 23 Kravits, K. F. 136 Kruger, P. A. 184 Kuhrt, A. 83 Kunin, S. 59 Kwasman, T. 18 La Fleur, W. R. 1 Labat, R. 173 Lacherman, E. R. 181 Lafont, S. 15, 16, 20, 69, 76, 85, 89, 105, 106, 108 Lakoff, G. 2

Index of Authors Lambert, W. G. 10, 74, 128, 190, 208, 223 Lauterbach, J. Z. 78 LeFebvre, M. 78 Lee, B. P. 84, 90 Leemans, W. F. 22, 23 Leichty, E. 182 Lemaire, A. 53 Lemos, T. M. 132, 143–45, 147, 157 Levenson, J. D. 49, 50, 52, 54, 55, 61, 129, 217 Levine, B. A. 48, 113, 120, 125, 189, 211 Levine, É. 4 Levinson, B. 61, 75, 78 Lichtheim, M. 30 Lindenberger, J. M. 207 Lipi¸ski, E. 211–13 Liverani, M. 6, 14, 19, 35 Livesey, N. 29 Loewenstamm, S. A. 40 Machinist, P. 6 Malbran-Labat, F. 173 Malul, M. 15, 19, 59, 72, 73, 104, 174, 180– 82, 190, 191, 194, 197–200, 224 Marcus, D. 139–41, 153 Márquez-Rowe, I. 40 Martínez, F. G. 123, 162 Mathewson Denny, F. 172 Matt, D. C. 67 Mayer, G. 193 McCarthy, D. J. 43 McKenzie, J. L. 203 Meek, T. J. 174 Mélèze-Modrzejewski, J. 7 Melville, S. C. 43 Mendelsohn, I. 200 Mendenhall, G. E. 18, 38 Meyers, C. L. 202 Meyers, E. 202 Miles, J. C. 95, 103–105, 113, 115, 163, 172, 175, 178, 186, 196, 224 Milgrom, J. 120, 121, 186, 216 Millard, A. 25, 26 Miller, W. I. 135 Mirguet, F. 213 Mishaly, A. 95 Moberley, R. W. L. 201 Monroe, L. A. S. 159

259

Mopsik, C. 225 Moran, W. L. 44 Morgenstern, J. 59 Morrow, W. S. 9, 10, 13, 16 Neihoff, M. 29 Nel, P. J. 78, 79 Nelson, W. D. 87 Neusner, J. 28, 34, 102 Niehaus, J. J. 157 Nitzan, B. 213 Oelsner, J. 100, 192 Oeming, M. 73, 78 Olyan, S. M. 29, 168 Oppenheim, A. L. 18, 205 Orbach, S. 3 Ornan, T. 2 Oshima, T. 4 Otto, E. 16, 78, 90 Parpola, S. 5, 38, 52, 57, 58, 65, 163 Paul, S. M. 5, 104, 126, 138, 139, 141, 167, 174, 175, 224 Polzin, R. 131, 133, 145 Pope, M. 157, 168 Porten, B. 7, 8, 206 Postgate, J. N. 12, 16, 20, 21, 100, 114, 205 Pressler, C. 9 Propp, W. H. C. 39, 49, 55, 59, 63, 72, 196, 200 Radner, K. 18, 100, 218, 219, 224 Rainey, A. 7 Rand, H. 204 Reiner, E. 208 Rendtorff, R. 28, 29 Richter, S. L. 214 Rofé, A. 72, 73 Roth, M. T. 11, 12, 22, 75, 83, 92, 95, 96, 103, 113–15, 126, 146, 156, 174, 224 Rothkamm, J. 68 Ruwe, A. 46 Sacks, J. 45, 60, 67, 151, 217 Safrai, S. 60 Sandmel, S. 23, 24 Saporetti, C. 174

260

Index of Authors

Sarna, N. M. 38, 39, 42, 63, 97, 100, 101, 147, 148, 204 Sasson, J. 31, 32 Scarry, E. 5 Scheil, V. 174 Schreiber, A. 81, 188 Schroer, S. 161 Seebass, H. 95, 105 Selz, G. J. 14 Shaffer, A. 196–98 Shankman, R. 59 Sheinberger, M. 201 Shelby Brown, S. 53 Shemesh, Y. 71, 79, 143, 144, 164 Slotski, J. J. 151 Sneed, M. 9 Snell, D. C. 142 Sparks, K. 33 Speiser, E. A. 41, 77, 90, 100, 185 Stager, L. E. 53 Staubli, T. 161 Stavrakopoulou, F. 6, 9, 49, 50 Stern, S. 24 Steymans, H. U. 18 Stol, M. 96, 190 Stolper, M. W. 206, 208–10 Stone, M. E. 45, 47, 162, 192 Svoboda, J. S. 35 Tallqvist, K. 174 Tigay, J. H. 24–27, 81, 165, 169 Tigchelaar, E. J. C. 123, 162 Tucker, G. M. 40 Tzoref, S. 213

Veenhof, K. R. 12, 20, 94 Veenker, R. A. 22 Vermes, G. 59 Viberg, A. 59, 194, 198 Vlahogiannis, N. 136–38, 143 Vukosavoiü, F. 4 Walsh, J. 168, 169 Washington, H. 9 Wasserman, N. 25 Watanabe, K. 38, 65, 163 Weinfeld, M. 1, 18, 37, 43 Weisberg, D. B. 180 Wells, B. 9, 19, 22, 100, 106, 192 West, M. 13 Westbrook, R. 3, 8, 12, 14, 19, 22, 74, 77, 88, 91, 106, 113, 128, 179, 185 Westenholz, J. 77 Westermann, C. 201–204 Whitman, J. Q. 170 Williamson, H. G. M. 6, 9, 10 Wilson, J. A. 157, 221, 223 Wilson, M. 3, 4 Winter, I. J. 42 Wiseman, D. J. 18, 163 Wöhrle, J. 46 Wold, D. J. 48 Wolff, S. R. 53 Wolfson, E. R. 67 Woodward, R. D. 113 Wright, D. P. 9, 19, 23, 76, 77, 82, 118 Wunsch, C. 100, 192 Wyatt, N. 33–35, 55 Yaron, R. 102

van de Mieroop, M. 20, 96 van der Toorn, K. 83, 193 van Dijk, J. 37, 56 Van Seters, J. 73 Vanoni, G. 213

Zakovitch, Y. 78, 194 Zimmerli, W. 201 Ziskind, J. R. 169