The Right Chorale: Studies in Biblical Law and Interpretation (Forschungen Zum Alten Testament) 9783161493829, 9783161510953, 3161493826

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Forschungen zum Alten Testament Edited by Bernd Janowski (Tübingen) · Mark S. Smith (New York) Hermann Spieckermann (Göttingen)

54

Bernard M. Levinson

“The Right Chorale”: Studies in Biblical Law and Interpretation Perspektiven der alttestamentlichen Bet-El-Überlieferung

Mohr Siebeck

Bernard M. Levinson, born 1952; Berman Family Chair of Jewish Studies and Hebrew Bible at the University of Minnesota (Classical & Near Eastern Studies and Law School); fellowships at the Institute of Advanced Study (Princeton, New Jersey) in 1997– 1998 and at the Wissenschaftskolleg zu Berlin/Berlin Institute for Advanced Study in 2007 –2008.

e-ISBN PDF 978-3-16-151095-3 ISBN 978-3-16-149382-9 ISSN 0940-4155 (Forschungen zum Alten Testament) Die Deutsche Nationalbibliothek lists this publication in the Deutsche Nationalbibliographie; detailed bibliographic data is available in the Internet at http://dnb.d-nb.de.

© 2008 by Bernard M. Levinson and Mohr Siebeck, Tübingen, Germany. This book may not be reproduced, in whole or in part, in any form (beyond that permitted by copyright law) without the publisher’s written permission. This applies particularly to reproductions, translations, microfilms and storage and processing in electronic systems.

The book was printed by Gulde-Druck in Tübingen on non-aging paper and bound by Großbuchbinderei Spinner in Ottersweier. Printed in Germany.

The greatest poverty is not to live In a physical world, to feel that one’s desire Is too difficult to tell from despair. Perhaps, After death, the non-physical people, in paradise, Itself non-physical, may, by chance, observe The green corn gleaming and experience The minor of what we feel. The adventurer In humanity has not conceived of a race Completely physical in a physical world. The green corn gleams and the metaphysicals Lie sprawling in majors of the August heat, The rotund emotions, paradise unknown. This is the thesis scrivened in delight, The reverberating psalm, the right chorale. One might have thought of sight, but who could think Of what it sees, for all the ill it sees? Speech found the ear, for all the evil sound, But the dark italics it could not propound. And out of what one sees and hears and out Of what one feels, who could have thought to make So many selves, so many sensuous worlds, As if the air, the mid-day air, was swarming With the metaphysical changes that occur, Merely in living as and where we live.

Wallace Stevens, “Esthétique du Mal,” xv

Preface This volume gathers twelve previously published articles that investigate the nature of textuality in ancient Israel. With a shared focus on law and interpretation, they explore the relationship between synchronic and diachronic methodology, narrative and law, biblical law and the legal collections and treaty literature of the ancient Near East, Higher and Lower Criticism, and the connection of the Bible to later western literary and intellectual history. The desire to negotiate and to reflect upon such questions of relation, to seek meaning where discord might be possible, prompted the choice of title: The Right Chorale. The phrase is taken from a poem by Wallace Stevens, who frequently draws upon and embodies biblical themes in his poetry. The conviction underlying and unifying these essays is that theory—a model of hermeneutics—is already implicit in the biblical text. This is another way of saying that the authors of the biblical texts were themselves readers and interpreters, conscious of their place in literary, legal, and intellectual history in ancient Israel, and aware that they were living in a world where the “word” was already a textualized word, and was not simply immediate. A shared concern of the essays is to show how key sections of the Hebrew Bible were read, reread, and reinterpreted, both in antiquity and in modernity. The volume is organized into three sections, each with four chapters: Part I. Setting the Agenda: Why Biblical Law Matters; Part II. The Paradigm of Legal Hermeneutics: Close Studies and Test Cases; and Part III. Debate and Dialogue: The Question of Method. While any such organization is arbitrary, the aim is to convey broad themes and continuities of approach, so as to highlight the larger argument about authorship in ancient Israel that emerges from the individual chapters. Each Part is accompanied by its own short Introduction, in which I attempt to situate my work in relation to where the field has gone, indicate where I feel the discipline should move, and outline what I see as the main questions. Both in these Introductions and selectively within the revised articles themselves, I have attempted to respond to scholars who have engaged my work since the articles’ original publication and to note critical responses to or reception of my work.

viii

Preface

The chapters share a common approach to the biblical text, which is to generate interpretive conclusions based upon a series of “close readings” of the primary ancient sources (whether biblical, cuneiform, or the ancient versions). In working through the scholarly literature, I sometimes have the concern that deductive approaches too easily become self-confirming and self-propagating: that there is a risk of the text being forced to fit the theoretical model, rather than vice versa. My preference, therefore, has been to work more inductively: to read the text closely and seek to explain it, out of the conviction that theory should emerge from and provide the closest possible account of the textual evidence. This volume is important to me as a forum for communicating my work and my view of the discipline. At the same time, as a scholar at midcareer, I do not wear the honor lightly of being invited to prepare such a volume, which I would normally associate with a more senior scholar, as the culmination of his or her career. For that reason, it seems appropriate to share the “birth story” of this collection. In August 2006, Prof. Dr. Hermann Spieckermann (Göttingen) wrote on behalf of the editorial board of Forschungen zum Alten Testament, inviting me to contribute a volume of collected essays to this prestigious series. The letter came as an exciting, if complete, surprise, and I welcomed the opportunity to bring together articles that have been published in diverse contexts in North America and Europe, to make them more accessible, and to permit the cumulative argument of my work to emerge by having this material together in a uniform format. There followed some very helpful consultations with Professor Mark Smith (New York University), on the editorial board, concerning the shape of the volume. Once work began, however, the project took on a life of its own and rapidly snowballed into something much larger than anticipated. Each article, while previously published, has been very significantly reworked. The revision involved has gone beyond the effort required to impose a uniform format on twelve articles published in ten different journals or edited volumes in Britain, Germany, the Netherlands, and the United States, each having its own very different style sheet. The articles have, in addition, been significantly updated. I strived to take account of more recent scholarly literature, newer editions of key reference works and grammars, and new critical editions or translations of primary sources to the greatest degree possible, while still maintaining the essential wording and argument of the article. In many cases, therefore, the number of footnotes in these newer versions of the articles will differ from their original publication, with new footnotes being added or new substantive content added to the footnotes.

Preface

ix

Accordingly, this volume enacts its own project: it is not only about the reworking and updating of legal traditions in ancient Israel, but itself is a product of such a process. At one point, I began systematically to mark additions to the text and notes with the use of square brackets; but this became unwieldy. In the interest of trying to provide the reader with a coherent volume of more than antiquarian interest, so much was being changed to make the volume meaningfully aktualisiert (there seems to be no good English equivalent), that it no longer seemed to make sense to clutter the text with brackets. For the same reason, I have not attempted to indicate the page breaks of the original publications. While the individual articles gathered here still retain their original identity, there has been a serious effort to give the reader “added value” in this volume. There were, at the same time, some practical and intellectual limits in regard to how much could be changed. Three chapters (6, 7, and 8) are devoted to close textual studies of Deut 13. I am aware that there is some repetition of material across these chapters (specifically, some of the charts presenting the Neo-Assyrian loyalty oaths and some of the analysis of their implications). I found it necessary to retain the overlapping material in order to maintain the independent line of argumentation in each of the chapters. Over the course of what turned out to be nearly a two year long project, several people have helped me prepare this volume for publication. Dr. J. P. Kang, whose recently completed dissertation provides a valuable dictionary of epigraphic Hebrew, brought to bear his distinctive combination of scholarly training and computer expertise. He prepared the volume for publication in all its details; his skills and counsel have made an important difference. My research assistant, Michael Bartos, prepared the Bibliography and carefully proofread each of the many versions of this manuscript as it took shape. Tina Sherman played a valuable role with editing assistance at various stages. It is a pleasure to express my thanks to J. P., Mike, and Tina for their dedication to this project. Finally, it has been a pleasure to work with Mohr Siebeck Verlag. As hawk-eyed production manager, Tanja Mix held us to a welcome high standard of consistency and graciously prepared the reproduction of the fragments of 4QDeutc, working from the photos I had obtained from the Israel Antiquities Authority (p. 121). As Theology Editor, Dr. Henning Ziebritzki helped keep everything on course with his enthusiasm for including this volume in Forschungen zum Alten Testament. The volume also presupposes ongoing intellectual dialogue with colleagues near and far. It has been a pleasure discussing a number of points of Neo-Assyrian grammar with my colleagues Jeffrey Stackert and Eva von Dassow; and law and transformational grammar with George Sheets, the chair of the Department of Classical and Near Eastern Studies. Michael

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Preface

O’Connor, whose premature death is a great loss to the profession, had offered helpful suggestions for the original version of ch. 5; for the revised version, John C. Beckman (Gordon-Conwell Theological Seminary), Holger Gzella (Leiden), and Harald Schweizer (Tübingen), provided helpful responses. Patricia Kitcher (Columbia), my colleague at the Berlin Institute for Advanced Studies, kindly reviewed my revised discussion of Kant’s view of law in ch. 4. Hanne Løland (Oslo), while putting the final touches on her own volume for Mohr Siebeck, gave generously of her time in reading and commenting upon the Introductions. The Law School of the University of Minnesota kindly provided a special grant in support of preparing this manuscript. I am especially grateful to Nathan () and Theresa Berman and to Lyle and Janis Berman for having created the Berman Family Chair of Jewish Studies and Hebrew Bible at the University of Minnesota. Their foresight and generosity allowed this volume to come into existence. Grunewald, Wissenschaftskolleg zu Berlin July 1, 2008

B.M.L.

Table of Contents Preface .................................................................................................. vii List of Figures ..................................................................................... xv Abbreviations .................................................................................... xvii

Part I. Setting the Agenda: Why Biblical Law Matters Introduction ........................................................................................... 3 1. The Right Chorale: From the Poetics to the Hermeneutics of the Hebrew Bible ................................ 7 The Problem of Method: Synchrony and Diachrony .......................... 9 The Nature of the Israelite Revelation .............................................. 24 The Literary Implications of Biblical Law ....................................... 30

2. The Seductions of the Garden and the Genesis of Hermeneutics as Critique ........................ 40 3. The Sinai Covenant: The Argument of Revelation .............. 48 4. Deuteronomy’s Conception of Law as an “Ideal Type”: A Missing Chapter in the History of Constitutional Law ... 52 The “Origin Myth” of the Founding of the Judicial System ............. “The Laws Regulating Officials” as Seeking to Transform Society ............................................... The Two-Fold Transformation of Local Justice ............................... The Transformation of the Central Sanctuary .................................. The Transformation of the Monarchy ...............................................

58 68 71 74 76

xii

Table of Contents

Priesthood and Prophecy .................................................................. 80 The Unit as a Draft Constitution ...................................................... 81 Conclusions ...................................................................................... 85

Part II. The Paradigm of Legal Hermeneutics: Close Studies and Test Cases Introduction ......................................................................................... 89 5. The “Effected Object” in Contractual Legal Language: The Semantics of “If You Purchase a Hebrew Slave” (Exodus 21:2) ............................................................................... 93 The Concept of the “Effected Object” .............................................. 97 The “Effected Object” Should Not Be Restricted to Cognate Objects ................................................... 99 Verbs of Creation and Appointment in Contractual Legal Language ................................................ 105 Conclusions .................................................................................... 110

6. Textual Criticism, Assyriology, and the History of Interpretation: Deuteronomy 13:7a as a Test Case in Method .................... 112 The Literary Context of the Crux: The Apostasy Series of Deuteronomy 13 ................................. The History of the Discussion ........................................................ The Evidence of Qumran ............................................................... The Evidence of Comparative Semitics and Historical Linguistics ........................................................ The Evidence of Rabbinic Exegesis ............................................... The Contribution of Assyriology .................................................... Conclusions ....................................................................................

113 115 120 125 134 138 143

7. Recovering the Lost Original Meaning of     (Deuteronomy 13:9) .................................................................. 145 Auf dem semantischen Holzweg .................................................... The Lexicography of Piel   ................................................. Nuances .......................................................................................... Conclusions ....................................................................................

149 151 158 164

Table of Contents

xiii

8. “But You Shall Surely Kill Him!”: The Text-Critical and Neo-Assyrian Evidence for MT Deuteronomy 13:10 .................................................... 166 The Analysis of the Versions ......................................................... The Evidence of the Versions ........................................................ The Neo-Assyrian Treaties ............................................................. Conclusions ....................................................................................

170 178 184 190

Part III. Debate and Dialogue: The Question of Method Introduction ....................................................................................... 197 9. The Case for Revision and Interpolation within the Biblical Legal Corpora ......................................... 201 The Transformation of the Text ..................................................... Implications of the Denial of Development, Revision, and Interpolation ..................................................... Revision and Interpolation Elsewhere in Biblical Law .................. Conclusions ....................................................................................

204 207 217 222

10. Calum M. Carmichael’s Approach to the Laws of Deuteronomy ................................................... 224 The Problem of the Sequence and Structure of the Legal Corpus ................................................................. Theoretical Responses to the Problem of Order ............................. Carmichael’s Argument in The Laws of Deuteronomy ................... The Argument of Law and Narrative in the Bible .......................... Carmichael’s Hermeneutics of Deuteronomy 12–26 ......................

227 229 232 235 250

11. The Hermeneutics of Tradition in Deuteronomy: A Reply to J. G. McConville .................................................. 256 The Problematics of Method and Theology in Biblical Law .......... The Double Problem of Text and Historical Context ..................... Consistency with Tradition as a Rhetorical Claim ......................... A Hermeneutics of Tradition ..........................................................

259 261 267 273

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Table of Contents

12. Is the Covenant Code an Exilic Composition? A Response to John Van Seters .............................................. 276 The Hostility to Redaction and the Model of Authorship ............... The Context for the Influence of the Laws of Hammurabi upon the Covenant Code .......................................................... The Question of Literary Context: An Immanent Reading of the Altar Law? ................................ Conclusions ....................................................................................

281 295 307 329

Acknowledgments ............................................................................ 331 Bibliography ...................................................................................... 335 Index of Scripture ............................................................................. 377 Index of Other Ancient Sources .................................................... 388 Ancient Near Eastern Literature ..................................................... Versions ......................................................................................... Targumim ....................................................................................... Dead Sea Scrolls and Related Literature ........................................ Rabbinic Sources ............................................................................ Greek Sources ................................................................................

388 392 394 395 396 399

Index of Authors ............................................................................... 400 Index of Key Words and Phrases .................................................. 408 Sumerian ........................................................................................ Akkadian ........................................................................................ Hittite ............................................................................................. Ugaritic .......................................................................................... Hebrew and Aramaic ...................................................................... Greek............................................................................................... Syriac ............................................................................................. Latin ...............................................................................................

408 408 409 409 409 414 414 415

Index of Subjects .............................................................................. 416

List of Figures 5.1 5.2 5.3

6.1 6.2 6.3 6.4 6.5 6.6 6.7 6.8 6.9

The Variant Textual Traditions of Gen 47:21 .......................... 109 The Judicial Oath Necessary to Elect to Become a Permanent Slave (Exod 21:5–6) ......................... 110 Ellipsis of the Affected Object in the Protasis of Exod 21:2 ..................................................... 111 4QDeutc 13:7 ............................................................................ The Semitic Context of the Word Pair ..................................... The Word Pair “Brother/Son of Mother” in Hebrew ............... Attestations of the Two Forms of the Appositional String ....... The Double Apposition < child of father + child of mother > in Biblical Hebrew ................................................................... The One Context for the Double Apposition ........................... The Exegetical Origins of the Plus: Midrash Halakah ............. Esarhaddon’s Succession Treaty (=VTE) §10 (lines 108 –22) Sedition: Within the Royal or One’s Own Family (The Zakutu Treaty) ................................................................

121 127 128 129 129 130 135 139 141

7.1 7.2

Esarhaddon’s Succession Treaty (=VTE) §10 (lines 108 –22) 159 Sedition by “anyone in your entire nation” (The Zakutu Treaty) ................................................................ 160

8.1

Grammatical Aporia in the Targum as Pointing to Textual Harmonization ..................................... Attestations of ()   (Deut 13:10) in the Versions ..... Rendering of Deut 13:10 –11 as an Explicitly Public Execution ............................................ The Introduction of Witness Law in Deut 13:10a (9a) ............ Exposure and Transfer to Judicial Process: The Exegetical Origins of ajnaggevllwn ajnaggelei'" ............... Esarhaddon’s Succession Treaty (=VTE) §10 (lines 108 –22) The Literary Structure of Intensification in VTE ..................... Summary Execution as the Response of Choice to Incitement: VTE §12 (lines 130 – 46) ..........................................................

8.2 8.3 8.4 8.5 8.6 8.7 8.8

177 179 179 180 181 185 187 188

List of Figures

xvi

8.9

Seize and Kill! (The Zakutu Treaty) ........................................ 190

11.1

The Literary Relationship of the Festival Calendars in Exod 23 and Deut 16 ............................................................ 271

12.1 12.2

The Yahwist’s Original Sinai Pericope .................................... 286 Correspondences between the Covenant Code and the Laws of Hammurabi .................................................... 298 Extant Copies of the Laws of Hammurabi ............................... 302 Van Seters’s Reading of the Altar Law (Exod 20:24) .............. 316 The Textual Witnesses to Exodus 20:24b Reflecting the Verb in First Person ................................... 318–19 The Textual Witnesses to Exod 20:24b Reflecting the Verb in Second Person ..................................... 321 Textual Phenomena Subject to Leveling (Exod 20:24) ............ 324 Summary of Evidence Regarding the Person of the Verb ........ 325 Evidence for Deity’s Proclaiming Own Name in a Theophany ........................................................................ 327 The Contextual Logic of the Altar as Site for the Renewal of Theophany ..................................... 328

12.3 12.4 12.5 12.6 12.7 12.8 12.9 12.10

Abbreviations General Akk. Bab. ch(s). col(s). ed(s). esp. fig. frg(s). lit. n(n). n.p. no(s). pl. PN prep. repr. rev. s.v. sg. trans. v(v). vol(s).

Akkadian Babylonian chapter(s) column(s) editor(s), edited by especially figure fragment(s) literally note(s) no publisher number(s) plural; plate personal name preposition reprint; reprinted revised; or reverse (of a tablet) sub verbo, under the word singular translator, translated by verse(s) volume(s)

Texts and Editions  b. BHK 3 BHQ

Symbol to designate restoration of partially preserved consonant in ancient manuscript Babli: Talmudic tractate cited in the version of the Babylonian Talmud Biblia Hebraica. Edited by Rudolf Kittel and Paul Kahle. 3d ed. Stuttgart: Württembergische Bibelanstalt, 1937. Biblia Hebraica Quinta. Edited by Adrian Schenker et al. Stuttgart: Deutsche Bibelgesellschaft, 2007– .

xviii BHS

ET

Frg. Tg. JB LXX

m. MS(S) MT NEB NJPS NRSV

Pesa RSV

Sanh. äeqal. SP Tg. Frg. Tg. Tg. Neof. Tg. Onq. Tg. Ps.-J. VTE

y. Yebam.

Abbreviations

Biblia Hebraica Stuttgartensia. Edited by Karl Elliger and Wilhelm Rudolph. 2d ed. Stuttgart: Deutsche Bibelgesellschaft, 1983. English translation See under Tg. Jerusalem Bible Septuagint (the Greek OT) mishnah manuscript(s) Masoretic Text (of the OT) New English Bible Tanakh: The Holy Scriptures. The New JPS Translation according to the Traditional Hebrew Text New Revised Standard Version Pesaim Revised Standard Version Sanhedrin äeqalim Samaritan Pentateuch Targum Fragmentary Targum Targum Neofiti 1 Targum Onqelos Targum Pseudo-Jonathan Vassal Treaties of Esarhaddon, prefix in citations to Esarhaddon’s Succession Treaty. See Simo Parpola and Kazuko Watanabe, eds. Neo-Assyrian Treaties and Loyalty Oaths. SAA 2. Helsinki: Helsinki University Press, 1988. Yerušalmi: Talmudic tractate cited in the version of the Jerusalem or Palestinian Talmud Yebamot

Dead Sea Scrolls and Related Texts 1QIsaa 1QIsab 1QpHab 4QDe 4QDeutc 4QHalakhah A 4QLXXLeva 4QLXXNum 11QPsa 11QTemplea

Isaiaha Isaiahb (1Q8) Pesher Habakkuk Damascus Documente (4Q270) Deuteronomyc (4Q30) Halakha A (4Q251) Septuagint Leviticusa (4Q119) Septuagint Numbers (4Q121) Psalmsa (11Q5) Temple Scrolla (11Q19); alternative abbreviation is 11QTa

Abbreviations

11QTempleb CD

xix

Temple Scrollb (11Q20) Cairo Genizah copy of the Damascus Document

Periodicals, Reference Works, and Serials AB AfO AfOB AGJU AJSL AJS Review AnBib ANET

AnOr AOAT

AOS ATD BASOR BBB BDB

BeO BETL Bib BIOSCS BJS BN BO BRev BSOAS BWANT BZ BZAR BZAW

Anchor Bible Archiv für Orientforschung Archiv für Orientforschung: Beiheft Arbeiten zur Geschichte des antiken Judentums und des Urchristentums American Journal of Semitic Languages and Literature Association for Jewish Studies Review Analecta biblica Ancient Near Eastern Texts Relating to the Old Testament. Edited by James B. Pritchard. 3d ed. Princeton: Princeton University Press, 1969. Analecta orientalia Alter Orient und Altes Testament: Veröffentlichungen zur Kultur und Geschichte des Alten Orients und des Alten Testaments American Oriental Series Das Alte Testament Deutsch Bulletin of the American Schools of Oriental Research Bonner biblische Beiträge Brown, Francis, Samuel Rolles Driver, and Charles A. Briggs. A Hebrew and English Lexicon of the Old Testament. Oxford: Clarendon, 1906. Reprinted with supplement, Peabody, Mass.: Hendrickson, 1996. Bibbia e oriente Bibliotheca ephemeridum theologicarum lovaniensium Biblica Bulletin of the International Organization for Septuagint and Cognate Studies Brown Judaic Studies Biblische Notizen Bibliotheca orientalis Bible Review Bulletin of the School of Oriental and African Studies Beiträge zur Wissenschaft vom Alten und Neuen Testament Biblische Zeitschrift Beihefte zur Zeitschrift für Altorientalische und Biblische Rechtsgeschichte Beihefte zur Zeitschrift für die alttestamentliche Wissenschaft

xx CAD

CahRB CBQ CBQMS ConBOT CRINT CAT

DJD DSD EncJud ETL ETR ExpT FAT FRLANT GKC

HALOT

HAR HAT HKAT HO HS HSM HTR HUCA IBHS

Abbreviations

The Assyrian Dictionary of the Oriental Institute of the University of Chicago. Edited by A. Leo Oppenheim et al. Chicago: Oriental Institute, 1956 – . Cahiers de la Revue biblique Catholic Biblical Quarterly Catholic Biblical Quarterly Monograph Series Coniectanea biblica, Old Testament Compendia rerum iudaicarum ad Novum Testamentum Designation prefix for text cited from Manfried Dietrich, Oswald Loretz, and Joaquín Sanmartín, eds. The Cuneiform Alphabetic Texts from Ugarit, Ras Ibn Hani, and Other Places (KTU: Second Enlarged Edition). Abhandlungen zur Literatur Alt-Syrien-Palästinas und Mesopotamiens 8. Münster: UgaritVerlag, 1995. This volume represents the revised and expanded second edition of KTU, and is frequently abbreviated KTU 2. Discoveries in the Judean Desert Dead Sea Discoveries: A Journal of Current Research on the Scrolls and Related Literature Encyclopaedia Judaica. 16 vols. 2d printing. Jerusalem: Encyclopaedia Judaica, 1973. Ephemerides theologicae lovanienses Études théologiques et religieuses Expository Times Forschungen zum Alten Testament Forschungen zur Religion und Literatur des Alten und Neuen Testaments Gesenius’ Hebrew Grammar. Edited by Emil Kautzsch. Translated by Arthur Ernest Cowley. 2d ed. Oxford: Clarendon, 1910. The Hebrew and Aramaic Lexicon of the Old Testament. Ludwig Koehler, Walter Baumgartner, M. E. J. Richardson, and Johann Jakob Stamm. Translated and edited under the supervision of M. E. J. Richardson. 5 vols. Leiden: E. J. Brill, 1994 –2000. Hebrew Annual Review Handbuch zum Alten Testament Handkommentar zum Alten Testament Handbuch der Orientalistik Hebrew Studies: A Journal Devoted to Hebrew Language and Literature Harvard Semitic Monographs Harvard Theological Review Hebrew Union College Annual An Introduction to Biblical Hebrew Syntax. Bruce K. Waltke and Michael Patrick O’Connor. Winona Lake, Ind.: Eisenbrauns, 1990.

Abbreviations

ICC IEJ Int JAOS Jastrow

JBL JCS JJS JPOS JQR JSOT JSOTSup JSS JTS KAV KHC KTU

LCL Leš Maarav NCB NEchtB Numen OBO ÖBS Or OTL OTS OtSt RA RB RevQ RHPR SAA SAAS

xxi

International Critical Commentary Israel Exploration Journal Interpretation Journal of the American Oriental Society Jastrow, Marcus. A Dictionary of the Targumim, the Talmud Babli and Yerushalmi, and the Midrashic Literature. 2 vols. London: Luzac & Co.; New York: G. P. Putnam’s Sons, 1903. Repr., 2 vols. in 1. Peabody, Mass.: Hendrickson, 2005. Journal of Biblical Literature Journal of Cuneiform Studies Journal of Jewish Studies Journal of the Palestine Oriental Society Jewish Quarterly Review Journal for the Study of the Old Testament Journal for the Study of the Old Testament Supplement Series Journal of Semitic Studies Journal of Theological Studies Keilschrifttexte aus Assur verschiedenen Inhalts Kurzer Hand-Commentar zum Alten Testament Designation prefix for text cited from Manfried Dietrich, Oswald Loretz, and Joaquín Sanmartín, eds. Die keilalphabetischen Texte aus Ugarit, vol. 1, Transkription. AOAT 24.1. Kevalaer: Butzon & Bercker; Neukirchen-Vluyn: Neukirchener Verlag, 1976. For the second edition (sometimes abbreviated KTU 2), see CAT. Loeb Classical Library Lešonénu: A Journal for the Study of the Hebrew Language and Cognate Subjects Maarav: A Journal for the Study of the Northwest Semitic Languages and Literatures New Century Bible Neue Echter Bibel Numen: International Review for the History of Religions Orbis biblicus et orientalis Österreichische biblische Studien Orientalia (New Series) Old Testament Library Old Testament Studies Oudtestamentische Studiën Revue d’assyriologie et d’archéologie orientale Revue biblique Revue de Qumrân Revue d’histoire et de philosophie religieuses State Archives of Assyria State Archives of Assyria Studies

xxii SAOC SBAB SBB SBLDS SBLMS SBLRBS SBLSCS SBLWAW SBS SBT ScrHier SD SHANE SJLA SJOT SJT ST STDJ StPB StudBib StudOr SubBi Tarbiz TB TDOT

ThWAT

TLZ TP TRev TZ UCOP UF VT VTSup WBC WMANT

Abbreviations

Studies in Ancient Oriental Civilization Stuttgarter biblische Aufsatzbände Stuttgarter biblische Beiträge Society of Biblical Literature Dissertation Series Society of Biblical Literature Monograph Series Society of Biblical Literature Resources for Biblical Study Society of Biblical Literature Septuagint and Cognate Studies Society of Biblical Literature Writings from the Ancient World Stuttgarter Bibelstudien Studies in Biblical Theology Scripta hierosolymitana Studia et documenta ad iura orientis antiqui pertinentia Studies in the History of the Ancient Near East Studies in Judaism in Late Antiquity Scandinavian Journal of the Old Testament Scottish Journal of Theology Studia theologica Studies on the Texts of the Desert of Judah Studia post-biblica Studia Biblica Studia Orientalia Subsidia Biblica Tarbiz: A Quarterly for Jewish Studies Theologische Bücherei: Neudrucke und Berichte aus dem 20. Jahrhundert Theological Dictionary of the Old Testament. Edited by G. Johannes Botterweck, Heinz-Josef Fabry, and Helmer Ringgren. Translated by J. T. Willis, G. W. Bromiley, and D. E. Green. 15 vols. Grand Rapids, Mich.: Eerdmans, 1974 – 2006. Theologisches Wörterbuch zum Alten Testament. Edited by G. Johannes Botterweck, Heinz-Josef Fabry, and Helmer Ringgren. 10 vols. Stuttgart: Kohlhammer, 1970 – . Theologische Literaturzeitung Theologie und Philosophie Theologische Revue Theologische Zeitschrift University of Cambridge Oriental Publications Ugarit-Forschungen Vetus Testamentum Supplements to Vetus Testamentum Word Biblical Commentary Wissenschaftliche Monographien zum Alten und Neuen Testament

Abbreviations

WUNT ZA ZABR ZAH ZAW ZTK

xxiii

Wissenschaftliche Untersuchungen zum Neuen Testament Zeitschrift für Assyriologie Zeitschrift für Altorientalische und Biblische Rechtsgeschichte Zeitschrift für Althebräistik Zeitschrift für die alttestamentliche Wissenschaft Zeitschrift für Theologie und Kirche

Part I

Setting the Agenda: Why Biblical Law Matters

Introduction to Part One Wallace Stevens, perhaps one of the most demanding, which is to say, rewarding of modern poets, was a profound reader. In his poems, Stevens proposes a way of reading and of being in the world that breaks down dichotomies: between sacred and profane, between metaphysics as a transcendent reality and metaphysics as immanent in the world, between language and thought, between presence and absence. Creation, as Stevens so clearly saw, entails hermeneutics, metaphor, language, and thought. Allusions to the Bible often appear unexpectedly in his work, as in the gorgeous poem “The Idea of Order at Key West,” which centers on an unnamed woman who, like God at the beginning of creation, stands over against the waters, bringing all into existence through her potent voice, ordering nature.1 Stevens here writes an implicit literary midrash that combines Proverbs 8 with Genesis 1. The stanza that I selected from “Esthétique du Mal” as the epigraph for this volume similarly rereads and rethinks literary and intellectual history in light of the Bible. In describing how “the metaphysicals / Lie sprawling in majors of the August heat,” Stevens’s hyperbole provides a poetic critique of a tradition like that of Platonic philosophy, in which ontology or truth is divorced from history and embodiment: “the greatest poverty is not to live in a physical world.” The contrasting model of fulfillment that he invokes is predicated upon religious language: “The reverberating psalm, the right chorale.” Stevens now points to another literary and intellectual tradition, that of the Jewish and Christian Bible, where meaning is conceptualized as existence in time, or as incarnation: “As if the air, the mid-day air, was swarming / With the metaphysical changes that occur, / Merely in living as and where we live.” The essays gathered in this volume attempt to embody that same “right chorale.” They explore the interplay between synchronic and diachronic method, between higher and lower criticism, between the Bible and its Near Eastern context, between narrative and law, while at the same time seeking to preserve due categories of distinction, so as not to privilege the one over the other or subsume one into the other. This goal becomes evi1 Wallace Stevens, “The Idea of Order at Key West” (1936), in idem, Collected Poetry and Prose (New York: Library of America, 1997), 105–6.

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I. Setting the Agenda: Why Biblical Law Matters

dent with chapter 1, “The Right Chorale: From the Poetics to the Hermeneutics of the Hebrew Bible.” Presented here in revised form, it was one of the first articles that I published, and it remains intellectually important to me. When I wrote the article, academic biblical studies seemed to be split along methodological lines: between synchronic and diachronic approaches, between “literary” approaches and more conventional sourcecritical approaches. The divide was not always irenic and I was troubled both by the claims of methodological hegemony and the lack of dialogue. For someone who became interested in biblical studies through work in literature and intellectual history, the situation was perplexing. Given my own research on Deuteronomy, with its integration of narrative and law, and where its reworking of literary and legal history was cast in terms of continuity with tradition, the double dichotomy—law and narrative, synchronic and diachronic—seemed inconsistent with the textual evidence. One of the most ambitious and engaging works of literary scholarship that I read at that time was Meir Sternberg’s The Poetics of Biblical Narrative. I found the intellectual scope of the book, which ranged from antiquity to modern literature and theory, breathtaking, as he sought to defend the literary modernity of the Hebrew Bible. At the same time, certain of his claims, both the methodological ones and the theoretical summaries about the “Israelite revelation,” gave me pause. I set myself the task of working through his book carefully and writing a programmatic response in order to try to find a way out of the impasse. I found myself returning to Spinoza as a model for breaking free of the methodological dualism. Many scholars do not see Spinoza in these terms,2 and so in revising the article, I have sought in particular to update the literature on this important thinker. A number of years after the original publication of chapter 1, Meir Sternberg published another work on the Hebrew Bible, a massive study of “the repertoire of legaliterature [sic] in its manifold narrativity.”3 This volume investigates the literary construction of ethnicity, identity, and power in the Hebrew Bible, worked out through the allegedly different “codes” for employing the terms Hebrew and Israelite. The volume includes an extensive analysis of biblical law, especially the laws concerned with manumission of slaves. It is gratifying to see that Sternberg has therefore moved in directions consistent with the main points raised in

2

For a sharply different approach to Spinoza, see Jon D. Levenson, “Theological Consensus or Historicist Evasion? Jews and Christians in Biblical Studies,” in idem, The Hebrew Bible, the Old Testament, and Historical Criticism: Jews and Christians in Biblical Studies (Louisville: Westminster/John Knox, 1993), 82–105 (at 93). 3 Meir Sternberg, Hebrews between Cultures: Group Portraits and National Literature (Indiana Studies in Biblical Literature; Bloomington: Indiana University Press, 1999), 537.

Introduction to Part One

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chapter 1.4 Sternberg would deny, however, that there is any change and in his response to my original article takes sharp exception to it—regrettably, in a way that does not leave the door open for dialogue on the issues.5 Chapter 2, “The Seductions of the Garden and the Genesis of Hermeneutics as Critique,” continues the exploration of the relation between narrative and law in a different way. Recent years have seen renewed interest in the story of the “fall” narrative in Genesis 2–3, with two volumes published just in the last year.6 However, my own interest in the story was first awakened through John Milton, Georg Wilhelm Friedrich Hegel, and the fascinating Russian Jewish philosopher, Lev Shestov, who was influenced by both Nietzsche and Kierkegaard, and who deployed the narrative of the fall for his powerful, if eccentric, critique of the western philosophical tradition.7 For these thinkers, the narrative is not an account of the loss of grace. Rather, it represents a symbolic structure of experience, a moment that is enduringly present and that is repeated both within the lives of individuals and from generation to generation. Their readings draw powerful connections between the Bible and the tradition of western literature and thought. For Hegel, “Der Sündenfall ist daher der ewige Mythos des Menschen, wodurch er eben Mensch wird”; it represents “der ewige Geschichte des Geistes.”8 From this perspective, the fall is not a moment in past time but in literary history and the imagination, essential to human self-reflection. In chapter 3, as in the previous chapter, the approach is primarily synchronic and attempts to reflect on a pivotal moment in the overall narrative of the Pentateuch. “The Sinai Covenant: The Argument of Revelation” was written as a contribution to a broader project on the history of Jewish political thought, and aimed at a broader reading public.9 I had to set aside 4

Steven Weitzman similarly notes how the new project requires Sternberg “for the first time to apply his interpretive approach to biblical law” (review of Sternberg, Hebrews between Cultures: Group Portraits and National Literature, JQR 94 [2004]: 537–41 [539]). 5 Sternberg, Hebrews between Cultures, 665n6. 6 Martin Arneth, Durch Adams Fall ist ganz verderbt . . . Studien zur Entstehung der alttestamentlichen Urgeschichte (FRLANT 217; Göttingen: Vandenhoeck & Ruprecht, 2007; and Paul Kübel, Metamorphosen der Paradieserzählung (OBO 231; Fribourg, Switzerland: Academic Press; and Göttingen: Vandenhoeck & Ruprecht, 2007). See Konrad Schmid’s review of the former; Review of Biblical Literature. Online: http://www.bookreviews.org. 7 Lev Shestov, Athens and Jerusalem (trans. and intro. by Bernard Martin; Athens: Ohio University Press, 1966; repr., New York: Simon and Schuster, 1968). 8 Georg Wilhelm Friedrich Hegel, Vorlesungen über die Philosophie der Geschichte [1837] (foreword by Eduard Gans and Karl Hegel; vol. 11 of Sämtliche Werke: Jubiläumsausgabe in zwanzig Bänden, ed. Hermann Glockner; 5th ed., Stuttgart-Bad Cannstatt: Friedrich Frommann [Günther Holzboog], 1971), 413. 9 Michael Walzer, Menachem Lorberbaum, and Noam J. Zohar, eds., The Jewish Political Tradition (4 vols.; New Haven and London: Yale University Press, 2000–).

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I. Setting the Agenda: Why Biblical Law Matters

the scholarly debates on dating and composition and focus instead on how and why the Sinai pericope matters as a chapter in the history of political thought, separate from its significance for religious communities. If the election of Israel at Sinai is popularly regarded as a myth of privilege, I believe that a closer study challenges that position. The exploration of the political thought of the Hebrew Bible continues in chapter 4, “Deuteronomy’s Conception of Law as an ‘Ideal Type’: A Missing Chapter in the History of Constitutional Law.” Here my concern was to explore the contribution of academic biblical studies to the history of constitutional thought. I felt that the role played by the ancient Near East and ancient Israel in the development of the ideas of the autonomy of the judiciary, the separation of powers, and the rule of law was widely overlooked. Although I speak in typological terms, other scholars have made more direct claims about the Bible’s influence. For example, Donald S. Lutz prepared “a count of the citations in the political literature produced during the founding era. . . . The general sample . . . covers the period from 1760 to 1805 and includes more than 916 pamphlets, books, and newspaper essays with 3,154 references to 224 different individuals. The sample includes virtually all the pamphlets and essays from the 1780s by Federalists and Antifederalists concerning the Constitution.”10 Lutz made a special effort to exclude political pamphlets that were reprinted sermons to avoid over-weighting the influence of religion, although “at least 80 percent of the political pamphlets during the 1770s and 1780s were written by ministers.”11 The conclusions that he draws are striking: [T]he impact of religion and biblical sources on American political theory needs to be examined carefully. Notwithstanding the importance of separating church from state in our politics, it would appear that students of American political theory ignore the impact of religion only at the cost of missing an important influence. . . . Even [after] excluding the majority of sermons that had no references to secular thinkers, as we have done here, Deuteronomy is the most frequently cited book, followed by Montesquieu’s The Spirit of the Laws.12

The importance attached to the Bible as a source of political thought at the time of the American founding cannot be overlooked.13

10

Donald S. Lutz, A Preface to American Political Theory (Lawrence: University Press of Kansas, 1992), 134. In his earlier book, he notes: “Deuteronomy is cited almost twice as often as all of Locke’s writings put together” (The Origins of American Constitutionalism [Baton Rouge: Louisiana State University Press, 1988], 140). 11 Ibid., 136. 12 Ibid., 136. 13 See Joshua A. Berman, Created Equal: How the Bible Broke with Ancient Political Thought (New York: Oxford University Press, 2008).

1. The Right Chorale: From the Poetics to the Hermeneutics of the Hebrew Bible In his brilliant The Poetics of Biblical Narrative,1 Meir Sternberg argues that the Bible of the ancient Israelites is fundamentally modern in the interpretive demands it places upon its readers. As such he clearly repossesses the Hebrew Bible for the contemporary intellectual. Like Erich Auerbach before him, Sternberg works from the perspective of the entire scope of Western literature to demonstrate the rich complexity of biblical narrative.2 Moreover, he does not rest content in providing a simple descriptive aesthetics of narrative structures and authorial techniques. Instead, Sternberg derives cultural theory from his narratological analysis. On the basis of his poetics, Sternberg provides an account of the nature and significance of the Israelite revelation. That revelation, according to Sternberg, is epistemological in character and has as its literary reflex the genesis of a new narrative technique: free indirect discourse. Mediating thereby between the method of poetics and the theoretical formulation of the content of revelation is Sternberg’s thesis concerning the central contribution of Israelite to world literature: the omniscient narrator whose privileged knowledge reflects the divine omniscience of the Creator. With extreme self-consciousness, Sternberg brings to the fore the issues of the methodology and theory of biblical studies. He begins his book with the following questions: “What goals does the biblical narrator set himself? What is it that he wants to communicate in this or that story, cycle, book? What kind of text is the Bible, and what roles does it perform in context?” (p. 1). These questions, with their focus on the communicative intent of the Hebrew Bible, lay the conceptual and methodological foundations for his interpretive project. Sternberg attempts to provide a prescriptive model for how the study—not just the literary study—of biblical narrative should be carried out. Indeed, the intention of his methodological shift from the paradigm of genetics to that of poetics, from 1 Meir Sternberg, The Poetics of Biblical Narrative (Bloomington: Indiana University Press, 1985); subsequent references will be provided in parentheses. 2 Erich Auerbach, Mimesis: The Representation of Reality in Western Literature ([1953]; trans. Willard R. Trask; introduction by Edward Said; Fiftieth-Anniversary Edition; Princeton: Princeton University Press, 2003), 3–23.

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I. Setting the Agenda: Why Biblical Law Matters

genesis to poesis (p. 68), is to permit a coherent and comprehensive exposition of the text and its significance. Precisely that concern with theory— significance, meaning, coherence—is frequently absent in conventional biblical scholarship, whose nearly exclusive concern is with method.3 Sternberg’s commitment to both is an immense contribution to the field and accounts for his astute if often sharply polemical demonstrations of the inadequacies of prior research. Given the questions Sternberg sets for himself, it is both appropriate and necessary to ask whether he succeeds in answering them. To the extent that he aims at providing a prescriptive model for the study of the Bible altogether, the query may be broadened to a more important issue: is the conceptualization of the Bible in terms of a narrative poetics both methodologically and theoretically adequate? A second look at the questions that open the book reveals one of the key strategies in Sternberg’s approach. Sternberg shifts all but imperceptibly from referring in the first question to “the biblical narrator” to, in the third question, “the Bible” as a whole. Two issues emerge immediately. The first is Sternberg’s deliberate focus on the narrator as the agent of the biblical text’s communication. The second and more striking issue is the implicit equation of the work of the narrator, which clearly can at most refer to the narrative texts of the Bible, with the text of “the Bible” as a whole, and, on the basis of that assimilation of the one to the other, then to generate comprehensive theoretical claims concerning Israelite literature. Can indeed the narrative texts of the Bible adequately be comprehended as the work of a “narrator”? Can, further, the Bible be comprehended primarily in terms of its narrative to the exclusion of its other literary genres, in particular its law? Finally, perhaps most importantly, does Sternberg’s characterization of revelation in terms of an epistemological breakthrough accurately represent the nature of the Israelite revelation? To raise these questions in this way is, of course, to suggest their answer and the issues I will address in this chapter. First, I shall attempt to demonstrate that the use of a synchronic method, a poetics of narrative, cannot provide a comprehensive reading of crucial biblical narrative texts. To the contrary, the conventional diachronic (historical-critical) method is not only essential but also points to just those textual aspects of the Bible that the newer literary critics should find most engaging. By means of a 3 Such concerns are more likely to be present in commentaries attempting to make the results of scholarship available to a non-specialist readership. For engaging examples: Nahum M. Sarna, Understanding Genesis (Heritage of Biblical Israel 1; New York: Schocken, 1970); and Moshe Greenberg, Understanding Exodus (Heritage of Biblical Israel 2; New York: Behrman, 1969; repr., Teaneck, N.J.: Ben Yehuda, 2005).

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study of the biblical flood-narrative I shall attempt to illustrate the contributions of a methodology informed by source criticism to the newer literary approach to biblical narrative. Second, I will argue that Sternberg’s characterization of the nature of the Israelite revelation as epistemological in fact is a necessary consequence of his literary methodology. Its restriction of methodological legitimacy to a synchronic poetics of narrative in effect creates a canon within the canon—those parts of the Hebrew Bible which are not narrative, not susceptible to reading in terms of poetics, are de facto excluded. For the purpose of establishing literary and cultural theory, this narrative canon can indeed be construed only in terms of epistemology, its literary features involving such issues as point of view, ambiguity, gapping, and repetition. The consequence of Sternberg’s effective exclusion of the biblical legal corpora from his poetics is the omission from his account of the Israelite revelation that which is truly distinctive: the formulation of ethics and law in covenantal terms, the attribution of law to Sinai. Third, and finally, I will contend that not only must the legal corpora of the Bible be made central to a theoretical conception of revelation, they must also be made central to the literary study of the Bible: no less than the narrative texts, the legal texts of the Bible reflect its unique textuality and point to techniques of authorship that should be of most interest to literary theorists. The broad conspectus of Sternberg’s book and its concern for both methodological and theoretical comprehensiveness impose a responsibility upon his readers. To take seriously his larger claims requires a willingness to confront a broad range of important exegetical, methodological, and indeed theological and philosophical issues, each of which could be the subject of its own article or monograph. Within the scope of a single chapter, therefore, to address the range of issues that Sternberg raises, I will focus my analysis on the overall orientation towards the biblical text that he proposes. I will attempt to provide a critique of Sternberg’s double dichotomies of method (synchronic versus diachronic) and content (narrative versus law). As a more adequate orientation to the Hebrew Bible, I will propose a notion not of poetics but of hermeneutics: a method informed by both synchronic and diachronic analysis of the text and a theory of revelation derived equally from narrative and law.

The Problem of Method: Synchrony and Diachrony Sternberg’s methodology, his substitution of poetics for genetics, involves a double critique: of conventional critical scholarship (literary criticism in

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I. Setting the Agenda: Why Biblical Law Matters

the established sense of source criticism) for being exclusively concerned with establishing the historical context out of which the Bible emerges, and of the new literary approach, for so removing the Bible from that context that the innovative force of its narrative strategies is lost. Recognizing that biblical study “is the intersection of the humanities par excellence” (p. 21), Sternberg attempts to avoid the double reduction of the text either to its origins or to a decontextualized, merely self-referential closed system and urges instead an historical reading of Israelite narrative conventions in the light of their comparative literary history (pp. 7–22). There is no doubt that he indeed illuminates the literary techniques and conventions of a broad range of ancient Near Eastern literature (pp. 81–89, 101–7, 127, 232) and elucidates the harmonistic exegesis embedded in the Samaritan Pentateuch and the Septuagint (pp. 371–74). In each case, his recourse to comparative literary history highlights the distinctiveness of biblical narrative by showing the generic conventions that Israelite writers transform or how the versions often soften interpretive difficulties posed by the Hebrew. Despite this studied investigation of literary history, however, Sternberg’s actual analysis of the biblical text is consistently and exclusively synchronic. He makes his sole focus the narrator as the reflex of the author; the text is construed as a compositional unity, the product of the artistic control of its author. This approach permits Sternberg to analyze the narrative rules underlying the text’s composition. As such, although Sternberg is concerned with history to a far greater extent than many other practitioners of the newer literary approach to the Bible, his explication of the text is synchronic rather than diachronic: his expositions never refer to an editor or redactor or view the text as deriving from multiple hands, as a unity redactional rather than compositional in origin. Sternberg’s expositional model thus rejects Higher Criticism, which rather analyzes the text in diachronic terms as the product of a compositional history involving a succession of editors or redactors. Although Sternberg invokes modern literary theory—the terminology of poetics—to formulate his synchronic method, in fact his respect for the integrity of the text and the intentionality of its details derives much of its inspiration from the great tradition of ancient rabbinic exegesis. In a sense Sternberg does not simply reject but moves chronologically behind the methodology of historical-critical biblical scholarship in order to obtain new principles of interpretation. He implicitly employs rabbinic conceptions of the text’s coherence and the purposiveness of its details to restore to biblical studies a concern with meaning—with what and how the text communicates—often absent in critical scholarship. Indeed, he begins his book by evoking the “ancient rabbis” whose “interpretive genius” and

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deftness with biblical language he praises, while noting his “variance from their premises” (p. xiv). Rabbinic exegesis thus provides Sternberg with an important methodological counterpoint to the primarily analytical or dissecting force of conventional diachronic criticism. At least in its origins, however, the diachronic method no less than the synchronic was concerned with the question of meaning. Even if diachronic method as currently practiced is not true to its origins, that method is still essential to the proper understanding of Israelite literary creativity. Therefore, in order to understand the consequences of Sternberg’s recourse to a synchronic model of textual exposition that is at least partially grounded in pre-critical assumptions, it is essential to analyze the intellectual origins of the historical-critical method as a response to traditional rabbinic exegesis. Although there are a few significant exceptions, the point of departure for all rabbinic interpretation of the Pentateuch is the assertion, “There is neither early nor late in the Torah.”4 Rabbinic exegesis therefore is fundamentally synchronic in its orientation and method. The postbiblical attribution of the whole of the Pentateuch to Moses means that rabbinic exegesis is constrained to deny the very literary history that brings the Pentateuch into being. The attribution of Mosaic authorship, the presumption of the text’s original coherence and revelatory origins, militates against a type of literary analysis that can recognize accretion, contradiction, revision, or redundancy in the text of the Pentateuch. Such textual phenomena are in effect explained away in synchronic terms by rabbinic midrashic hermeneutics which understands them to have a didactic purpose, as referring to separate narrative or legal cases. A transformation of the just-quoted rabbinic assertion, shifting from chronological to textual terminology, results in the following formulation: “There is neither redundancy nor contradiction in the Torah.” Herein lies the divergence of ancient and medieval rabbinic exegesis from the Enlightenment hermeneutics that give birth to the modern historical-critical method. Already in 1670, Spinoza drew on scattered hints in medieval rabbinic commentaries to provide a reading of the Hebrew Bible which candidly asserts its profusion of inner contradictions as well as the 4 The dictum is Tannaitic. See its repeated exegetical application in Mekhilta, Beshala 7 (on Exod 15:9) in the edition of Saul Horovitz and Israel A. Rabin, Mekhilta d’Rabbi Ishmael (Jerusalem: Bamberger and Wahrman, 1960), 139. Similarly, the anthologized series, also beginning from Exod 15:9, in Tractate Shirata in the superb new edition of W. David Nelson, ed., Mekhilta de-Rabbi Shimon bar Yoai: Translated into English, with Critical Introduction and Annotation (Philadelphia: Jewish Publication Society, 2006), 142– 43 (ch. XXXIII:I, units 1, 2, 3, 4, 5, 6, 7). See also Siphre Num., Behaaloteka, 64 in the edition of Saul Horovitz, Siphre D’be Rab (Jerusalem: Wahrmann, 1966), 61. In the Talmud, cf. y. äeqal. 6.1; y. SoÅah 5.3; b. Pesa. 6b.

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I. Setting the Agenda: Why Biblical Law Matters

post-Mosaic origins of the Pentateuch. For this reason, Spinoza’s biblical analysis in the first fifteen chapters of the Theologico-Political Tractatus5 is correctly understood to be crucial for the later, more systematic elaboration of the historical-critical method.6 Nonetheless Spinoza’s concerns in this portion of the Tractatus were not to void the text of significance and authority.7 That such is the prevalent understanding of Spinoza, however, accounts for the unease about his work that endures among scholars of Judaica. In turn, in their nearly exclusive focus on Spinoza’s philological and historical arguments, historians of the critical method misconstrue the intent of the earlier chapters concerned with biblical criticism by taking them out of the context of the work as a whole and by essentially ignoring chapters 16 –20, those chapters in which Spinoza provides the theory for a prototypically modern democratic state founded upon the rights of free thought and expression. The latter chapters, whose concern is freedom, share a common conceptual structure with the earlier chapters, whose concern is hermeneutics. Spinoza argues in chapters 1–15 that neither philosophy nor theology 5 Benedictus [Baruch] de Spinoza, Theological-Political Treatise (Gebhardt Edition) (trans. Samuel Shirley; intro. Seymour Feldman; 2d ed., Indianapolis: Hackett, 2001). Subsequent references to this work will be placed in parentheses in the text. 6 On Spinoza’s contributions, see Hans-Joachim Kraus, Geschichte der historischkritischen Erforschung des Alten Testaments (2d ed.; Neukirchen-Vluyn: Neukirchener Verlag, 1969), 61– 65. In immediate terms, the great advances in nineteenth century scholarship derive from the contributions of Wilhelm M. L. de Wette, who is the first “to use the critical method in order to present a view of the history of Israelite religion that is radically at variance with the view implied in the Old Testament itself.” See John W. Rogerson, Old Testament Criticism in the Nineteenth Century: England and Germany (London: SPCK, 1984), 29. At a more fundamental level, however, Spinoza’s work is crucial for his rejection of the Mosaic authorship of the Pentateuch and his demonstration of textual corruptions and historical and conceptual inconsistencies within the Bible. As such Spinoza helps found and legitimate the historical and secular approach to Scripture; see Leo Strauss, Spinoza’s Critique of Religion (New York: Schocken, 1965; repr., Chicago: University of Chicago Press, 1997), 35. 7 Most treatments of Spinoza reject his work as inimical to any notion of a biblically grounded hermeneutics; Strauss’s Spinoza’s Critique of Religion is the most obvious example. Recognizing this problem, see Nancy K. Levene, “Ethics and Interpretation, or How to Study Spinoza's Tractatus Theologico-Politicus without Strauss,” The Journal of Jewish Thought and Philosophy 10 (2000): 57–110. A particularly instructive approach to the whole of Spinoza’s thought is provided by Brayton Polka: The Dialectic of Biblical Critique (New York: St. Martin’s, 1986), 21–22, 25–27, 184– 87; and, idem, “Spinoza and the Separation between Philosophy and Theology,” Journal of Religious Studies 16 (1990): 91–119. See now his groundbreaking study, which rethinks the history of Spinoza scholarship: Between Philosophy and Religion: Spinoza, the Bible, and Modernity, vol. 1: Hermeneutics and Ontology, and vol. 2: Politics and Ethics (Lanham, Md.: Lexington, 2006 –2007). See also Nancy K. Levene, Spinoza’s Revelation: Religion, Democracy, and Reason (Cambridge: Cambridge University Press, 2004).

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should be subordinate to the other, that neither the reader nor the biblical text should be subordinate to the other, that neither the individual nor the state should be subordinate to the other. He attempts to grant each autonomy, respect, and freedom in relation to the other. Spinoza’s concern is to permit the reader to deal with the biblical text on its own terms and thereby to emancipate the Bible from two forms of alien hermeneutics: first, the reduction of theology to philosophical truth (the requirement by Maimonides that the Bible conform to the laws of identity and noncontradiction that derive from Greek philosophy); and second, the reduction of philosophy to theological truth (the requirement by Jehuda ibn Alfakhar that the reader unquestioningly subordinate his or her critical intelligence to the authority of the biblical text).8 Spinoza argues that the contradictions that cannot but engage the Bible’s attentive reader must not be explained away through allegorical exegesis (Maimonides) nor be used to contradict reason itself (Alfakhar). Nor do they render the text itself false (unprofitable) at the level of meaningfulness. The need to establish and legitimate an autonomous biblical hermeneutics has as its counterpart the need to legitimate the individual’s right of free expression with respect to the state, which Spinoza defends in chapters 16–20. Although the individual participates in a political contract, Spinoza acutely argues, the intent of such participation is to permit, not suppress, “freedom to judge and think as [one] pleases” (p. 223). The sovereignty of the state does not preclude the autonomy of the individual. “Nobody can so completely transfer to another all his right, and consequently his power, as to cease to be a human being, nor will there ever be a sovereign power that can do all it pleases” (p. 185). Spinoza’s hermeneutics, whereby the truth of the Bible is not contradicted by its manifest contradictions and redundancies, has as its corollary a crucial political claim: “the purpose of the state is, in reality, freedom” (p. 223). The democratic state must therefore tolerate contradiction comprehended as dissent (pp. 226 –28). What modern biblical criticism has taken from Spinoza is exclusively the historical-critical method without his equal concern for the verum sensum9 (“true meaning” [p. 89]) of the biblical text and for the connection 8

Spinoza’s organizes the critique of Maimonides (1138 –1204 C.E.) in ch. 7 (at pp. 100 –102) and of the latter’s opponent, Alfakhar (d. 1235 C.E.), in ch. 15 (at pp. 165– 68). The two frame chs. 7–15 as the unit concerned specifically with biblical interpretation (ch. 7) and the relation between philosophy and theology (ch. 15). 9 For the Latin critical edition, see Benedictus de Spinoza, Opera, vol. 3: Tractatus theologico-politicus, Adnotationes ad tractatum theologico-politicum, Tractatus politicus (ed. Carl Gebhardt; 2d ed.; Heidelberger Akademie der Wissenschaften; Heidelberg: Carl Winter, 1972), 100. Spinoza’s use of the term marks an implicit polemic with the Dutch Cartesian philosopher and physician, Ludwig Meyer (d. 1681). See the posthumously published commentary on the Tractatus by Carl Gebhardt in Spinoza, Opera, vol. 5:

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between hermeneutics and intellectual history or ethics. Most specialists over the past century have concerned themselves primarily with philology, text criticism, history, and the reconstruction of the allegedly earliest and original version of the text. The result, an analytically dissecting method often lacking an accompanying concern for synthesis or textual significance, all but bastardizes the very Spinoza claimed as “father.” Despite its real contributions to the understanding of the history of Israelite literature, historical criticism has intellectually impoverished itself in its separation from the larger tradition of which it was once part. The contemporary application to the Hebrew Bible of a new form of the synchronic method by the Bible as Literature movement must be understood in this context as an attempt to restore meaning—a non-reductive scholarship—to the biblical text. The meaningfulness and integrity of the Bible is reconceptualized, however, in artistic rather than explicitly religious terms. This same context of a primarily analytical and at times desiccating biblical scholarship helps account for why non-“specialists” in Bible (Erich Auerbach, Owen Barfield, Kenneth Burke, Erich Fromm, Eric Voegelin, Northrop Frye, Herbert Schneidau, and Robert Alter, among others) have made such important contributions over the past halfcentury.10 Their independence from the philological conventions of the discipline allows them not only to deal synthetically and conceptually with the Bible but also, in some of these cases, to generate a theory of literature or an approach to intellectual history informed by the Hebrew Bible. For these reasons, many contemporary practitioners of a literary approach to the Bible disdain the historical-critical method, rejecting it as altogether invalid. Although Sternberg grants the method its legitimacy, he effectively restricts its role to ancilla, interpretation’s handmaiden assisting the “inquiry into the historical processes of composition” of the text Supplementa (ed. Carl Gebhardt; Heidelberger Akademie der Wissenschaften; Heidelberg: Carl Winter, 1987), 45; and J. Samuel Preus, “A Hidden Opponent in Spinoza’s Tractatus,” HTR 88 (1995): 361– 88. Note the new critical edition of the Latin text with commentary: Spinoza, Traité théologico-politique (ed. Fokke Akkerman, Jacqueline Lagrée, and Pierre-François Moreau; Paris: Presses universitaires de France, 1999). 10 Auerbach, Mimesis, 3–23 (see n. 2 above); Owen Barfield, Saving the Appearances: A Study in Idolatry (London: Faber and Faber, 1957), 107–15; Kenneth Burke, “The First Three Chapters of Genesis,” ch. 3 of his The Rhetoric of Religion: Studies in Logology (Boston: Beacon, 1961), 172–272; Erich Fromm, You Shall Be As Gods (New York: Holt, Rinehart and Winston, 1966); Eric Voegelin, Israel and Revelation, vol. 1 of his Order and History (5 vols.; Baton Rouge: Louisiana State University Press, 1956 – 1987); Northrop Frye, Anatomy of Criticism: Four Essays (New York: Atheneum, 1970), 141– 46, 188– 89, 315–26; idem, The Great Code: The Bible and Literature (New York: Harcourt Brace Jovanovich, 1982); Herbert N. Schneidau, Sacred Discontent: The Bible and Western Tradition (Berkeley: University of California Press, 1977); and Robert Alter, The Art of Biblical Narrative (New York: Basic Books, 1981).

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but barred from crossing the rigid line imposed by Sternberg’s poetics “between source and discourse” (p. 22). Sternberg’s distinction establishes an implicit hierarchy: diachrony elucidates the genesis but not the poesis of a biblical text. As I have attempted to suggest with my account of the origins of the historical-critical method in Spinoza, diachronic analysis can be part of an interpretive framework that overcomes the dichotomy of “source” and “discourse” and, no less than a synchronic method, points to important issues of theory and textual significance. Indeed, Spinoza’s explicit rejection of the medieval convention of hierarchy—his assertion at the beginning of chapter 15 (p. 165) that neither philosophy nor theology should be “ancillary” [ancilla] to the other—provides a model for a proper hermeneutics of the Hebrew Bible. I contend, and will attempt to demonstrate, that the two methods, synchronic and diachronic, cannot be bifurcated in their application, the former concerned with “the structure of the product,” the latter, with genetic “reconstruction of the [compositional] process” (p. 22). To the contrary, adequate comprehension of the structure and significance of the biblical text must be informed by both. Viewing the text diachronically in many instances reveals the dynamics of the formation of Israelite literature and the particular literary creativity of biblical authors and editors. Sternberg’s restriction of diachronic analysis to genetic reconstruction risks “detextualizing” the Bible by obscuring precisely those elements of biblical literature that should be of most interest to contemporary literary theorists. Perhaps more than any other single literary feature of the Bible, the issue of repetition forces the question of methodology. So important is the issue of how a literary method construes narrative repetition that Sternberg devotes his longest chapter to it. Sternberg frames the chapter as a sharp critique of three exegetes, two medieval rabbinic (Ibn Ezra [1089 – 1164 C.E.] and Radak [R. David Kimi, 1160 –1235 C.E.]) and one modern (Umberto Cassuto). His demonstration of the medievals’ and Cassuto’s common reduction of narrative repetitions to meaningless rule is effective: the medievals reduce repetition to mere rule either of language or biblical storytelling,11 while Cassuto reduces the repetitions to “the tradition of Canaanite epic to which the Bible supposedly belongs” (pp. 370 –71).12 11

Sternberg overlooks the nearly identical critique of medieval rabbinic exegesis provided earlier by Meir Weiss in his The Bible and Modern Literary Theory (Jerusalem: Bialik Institute, 1967), 196 n. 22 (Hebrew); ET, The Bible from Within: The Method of Total Interpretation ([trans. Baruch J. Schwartz]; Jerusalem: Magnes, 1984), 37 n. 24. Weiss cites Ibn Ezra’s body and soul simile for the relation of word to meaning and notes its origins in medieval Islamic literary theory. He also cites Kimi (Radak) on Gen 24:39, rejecting the latter’s restriction of repetition to lexical variation void of exegetical implications. The work of Weiss more broadly represents an important attempt to develop a

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I. Setting the Agenda: Why Biblical Law Matters

Sternberg argues that the counter to such a reductive analysis of repetition is the model of poetics: to assume the purposiveness and intentionality of the repetitions. “The text has devised a redundancy on some level with an eye to a definite effect; that is, in order to impel the reader to transfer it to another level (pattern, context, framework) where it will duly fall into place” (p. 369). Sternberg’s presupposition that the text is everywhere purposive implicitly reformulates as an important heuristic principle of poetics (p. 75) the similar notions of textual coherence and absence of redundancy that ancient rabbinic exegetes characteristically assumed for dogmatic reasons. Rabbinic synchronic exegesis therefore does double duty for Sternberg: just as it provides him with a vantage point for a critique of the reductively analytic method of modern Higher Criticism, as noted above, so here it silently underlies his cogent critique of the two medieval exegetes and Cassuto for their common explanation of the text in terms of rules which do not bespeak intentionality. Although in this chapter Sternberg does not discuss it in these terms, repetition is equally one of the primary sources of evidence that source critics employ in their attempt to analyze and isolate the separate documentary sources from which, they maintain, the Pentateuch derives. Given the importance of repetition both to poetics and to source criticism, the close study of a text in which repetitions are central provides a valuable opportunity to demonstrate that both synchronic and diachronic analysis are essential to the literary study of the Bible. As such, I would like to literary approach to biblical poetic texts. He attempts to forge a system of “total interpretation,” informed conjointly by European literary theory and the philological approach of biblical criticism. Jeremiah Unterman also comments on Sternberg’s not engaging the work of Weiss; see idem, “Sternberg’s Ambiguity and the Bible’s: With an Appendix on the Non-Ambiguity of the Killing of the Concubine (Judges 19:30),” HS 29 (1988): 194 – 205, esp. 200 –201. 12 There is a larger context that helps provide the rationale for Cassuto’s “reducing” the significance of repetition. Cassuto maintained a constant polemic against the documentary hypothesis for its reductive inattention to the coherence and final meaning of the text. His strategy was to argue from his extensive work on Ugaritic epic against conventional source-critical analysis: to argue that the very textual feature, repetition, basic to its separation of the sources is instead a compositional feature characteristic of ancient Near Eastern oral epic and the (biblical) literature he contends derives from it. See Umberto Cassuto, The Documentary Hypothesis and the Composition of the Pentateuch: Eight Lectures (trans. Israel Abrahams; Jerusalem: Magnes, 1965; repr., without original subtitle; intro. Joshua A. Berman; Jerusalem: Shalem, 2006), 69– 83 [originally published in Hebrew in 1941]. For a compelling assessment of Cassuto’s monograph, demonstrating the exclusive focus upon narrative, the failure to engage source criticism on its own terms, and the way it has been misread by some as mounting a meaningful challenge to the documentary hypothesis, see Baruch J. Schwartz, “La critica del Pentateuco nell’ebraismo e negli studiosi ebrei moderni,” in La lettura ebraica delle Scritture (ed. Sergio J. Sierra; La Bibbia nella storia 18; Bologna: Dehoniane, 1995), 433– 63.

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provide an analysis of the biblical flood story (Genesis 6– 9) as an example of a narrative text which clearly demonstrates that a diachronic method is essential to revealing the striking textuality of the Hebrew Bible. I will begin by recalling the narrative background of the flood story. Discovering to his chagrin that the humanity he has made devotes itself only to evil, God repents—this is one of the most extraordinary lines in the Bible—that he has made humans (Gen 6:6) and sets out to destroy all life. “Yahweh said, ‘I will blot out [ ] from the earth humankind whom I have created—from humans [ ] to cattle to creeping things [. . .  ] to birds [] of the sky; for I regret that I made them’ ” (Gen 6:7; cf. 7:23).13 The divine intent signalled by the verb  is to transform the earth into a tabula rasa, to wipe the slate clean.14 The telling sequence of the life-forms listed ominously concretizes the verbal action. God cites in chiastic order (A:B:C :: C:B:A) his series of creative acts of days five (“birds” [ ; Gen 1:20]) and six (“cattle and creeping things” as a pair [  ; Gen 1:24],15 and “humankind” [ ; Gen 1:26]). The as yet unspecified form of destruction is thereby planned to be a precise and thorough reversal of the creation of life. There the story would abruptly end—not only leaving the scholar without a Bible to discuss but more seriously leaving the reader embar13 Bible translations in this chapter generally follow NJPS, as reprinted in The Jewish Study Bible (ed. Adele Berlin and Marc Zvi Brettler; New York: Oxford University Press, 2004), although I employ “Yahweh” for “LORD.” In this case, however, I made several changes to reflect the Hebrew syntax more closely and to make the translation gender inclusive, since the Hebrew term ( / ) in this context is not gender specific. Second, their translation of  (Gen 6:7) as “beasts” and obscures thereby the allusion to the identical Hebrew word in Gen 1:24, which they translate, “cattle.” In the narrative execution of Gen 6:7 in 7:23, however, the same word is correctly translated as “cattle”; the inconsistency obscures the close link intended between the two verses. 14 The imagery inherent in the Hebrew verb is specifically that of erasure, in the first instance, textual (Num 5:23; Exod 32:32) but also more general wiping (2 Kgs 21:13). For further discussion of the verb, see Umberto Cassuto, A Commentary on the Book of Genesis (2 vols.; trans. Israel Abrahams; Jerusalem: Magnes, 1961–1964), 1:304 –5. This motif of God’s re-beginning from a tabula rasa, an enforced ex nihilo in response to human iniquity, is frequent in the Bible. It recurs in the debates between Moses and God following the episodes of the golden calf (Exod 32:10) and the spies (Num 14:11–12); and in the conception of the devastation of the autochthonous peoples of Canaan in order to create a new moral community bound by God’s law (Lev 18:24 –30; 20:22–26). So characteristic is this motif of God’s ominous duality as destroyer and creator that the early midrash retrojects it into the prehistory of creation, positing a succession of other worlds as having been created and destroyed by God before he was, finally, content with this one: see Genesis Rabbah 3:7 in the edition of Julius Theodor and Chanoch Albeck, Midrash Bereshit Rabba (2d printing; 3 vols.; Jerusalem: Wahrmann, 1965), 1:23. 15 The citation from Gen 1:24 is, to be sure, not comprehensive but preserves in fixed order the only two substantives without the additional modifier, “of every kind.”

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I. Setting the Agenda: Why Biblical Law Matters

rassed by a Yahweh who, however omnipotent, patently lacks divine omniscience—but for the omniscient narrator’s qualification, “But Noah found favor with Yahweh” (Gen 6:8). Noah will become the basis for an experiment in divine eugenics: by means of Noah, Yahweh hopes to create a new human stock from an obedient root, the wicked rest of humanity extirpated. God thus commands Noah to build an ark, informing him: (17) “For My part, I am about to bring the Flood—waters upon the earth—to destroy all flesh under the sky in which there is breath of life; everything on earth shall perish. (18) But I will establish My covenant with you, and you shall enter the ark, with your sons, your wife, and your sons’ wives. (19) And of all that lives, of all flesh, you shall take two of each into the ark to keep alive with you; they shall be male and female. (20) From birds of every kind, cattle of every kind, every kind of creeping thing on earth, two of each shall come to you to stay alive. . . .” (22) Noah did so; just as God commanded him, so he did. (Gen 6:17–22)

God’s command that Noah collect two of every species of animal to be taken onto the ark, so that not only human but also animal life will survive the flood, is followed immediately by the narrator’s noting Noah’s prompt obedience. The narrator uses a compliance formula: “just as God commanded him, so he did.” Noah having thus perfectly executed the command to collect the animals, it should cause the close reader some consternation to find Noah once again commanded to collect animals, as if he had not already done so, although this time according to a different numerical criterion: (1) Then Yahweh said to Noah, “Go into the ark, with all your household, for you alone have I found righteous before Me in this generation. (2) Of every clean animal you shall take seven pairs, males and their mates, and of every animal which is not clean, two, a male and its mate; (3) of the birds of the sky also, seven pairs, male and female, to keep seed alive upon all the earth. (4) For in seven days’ time I will make it rain upon the earth, forty days and forty nights, and I will blot out from the earth all existence that I created.” (5) And Noah did just as Yahweh commanded him. (Gen 7:1–5)

Although this text follows immediately upon the preceding one, it cannot logically be read as chronologically consequent upon it without immense hermeneutical contortions. The first compliance formula renders the subsequent divine command otiose and the second compliance formula inexplicable. Not only is the second passage redundant in light of the first, it is also inconsistent with it in the system of categorizing and enumerating the creatures to be saved and in its conception of the origin and duration of the waters which are to destroy life. In the first passage life is to be preserved, “of all flesh . . . two of each” (6:19), without exception. In contrast, in the second passage, animals and birds are categorized as either clean or unclean (7:2; problem-

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atically anticipating the dietary laws which are not revealed to Israel until Leviticus 11 and Deuteronomy 14). Of the clean animals, seven pair are to be preserved; of the unclean, but a single pair. Even the terms employed in each case to denote the two genders of a sexual pair are altogether discrepant. The full extent of the inconsistency is regularly obscured by English translations which use a single word, “male,” for two different Hebrew words: in the former passage, “male and female” [  ] (6:19); in the latter, “a male and its mate” [   ] (7:2, bis).16 There is a further fundamental inconsistency between the two passages in the conception of the nature and origin of the waters which are to destroy life. In the former passage (Gen 6:17), the water is “the Flood [ ], waters upon the earth”: in other words, an inundation whose duration is not here specified but which lasts, it emerges, a year and ten days (cf. 7:11a and 8:13–14).17 The waters of the flood are not nature’s ordinary water: the phrasing of 7:11b makes it clear that they are rather the primordial waters above the vault of the firmament and below the fundament of the earth.18 God’s plan is to restore the earth to watery chaos, in effect to pull the plug and submerge the earth, reversing his second great act of creation, the separation of the waters (Gen 1:6–8). The flood is effectively a mythological reversal of creation.19 By contrast, in the second passage quoted, the waters are described more straightforwardly as a downpour that will begin in seven days and last for forty (7:4; cf. 7:12,  , i.e., “rain”).

16 Although the former does occur in Gen 7:3. The Syriac PeshiÅta version is troubled by the inconsistent means of referring to the animals’ gender and levels the lexical variation, thereby assimilating the lexicon of 7:1–5 to that of 6:17–22. 17 On the complexity of the chronology (which the Septuagint tries to minimize), see John Skinner, A Critical and Exegetical Commentary on Genesis (2d ed.; ICC; Edinburgh: T. & T. Clark, 1930), 167– 69; and Samuel E. Loewenstamm, “The Flood,” in idem, Comparative Studies in Biblical and Ancient Oriental Literatures (AOAT 204; Kevelaer: Butzon & Bercker; Neukirchen-Vluyn: Neukirchener Verlag, 1980), 93–121, esp. 110 –14. 18 For a diagrammatic representation of the cosmology presupposed by Genesis 1, depicting the waters both supernal and sub-terrestrial, see Sarna, Understanding Genesis, 5. 19 On the flood as a restoration of the pre-creation watery chaos, or Gen 7:11 as a reversal of Gen 1:2, see Hermann Gunkel, Genesis: übersetzt und erklärt (HKAT; 3d ed.; Göttingen: Vandenhoeck & Ruprecht, 1917; repr., with indices by Paul Schorlemmer as 6th ed., 1964), 77, 144 [ET: Genesis: Translated and Interpreted (trans. Mark E. Biddle; foreword by Ernest W. Nicholson; Mercer Library of Biblical Studies; Macon, Ga.: Mercer University Press, 1997) 78 –79, 145– 46]; Cassuto, A Commentary on the Book of Genesis, 2:97; Sarna, Understanding Genesis, 55; and Michael Fishbane, Text and Texture (New York: Schocken, 1979), 33–34.

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I. Setting the Agenda: Why Biblical Law Matters

But for special pleading, the unavoidable conclusion is that there are two flood stories, or more precisely, a “Flood” and “a downpour of rain” story, commingled, just as there are two problematically contiguous sequences of command and execution. The relation between the two accounts cannot be rendered in narrative terms: Noah does not move from the first to the second. Rather there are clearly two mutually exclusive accounts, each of which preserves independent traditions concerning the origins of the water which destroys life (primordial waters versus rain), the duration of the water (one year versus forty days), and the categorization (recognizing or not recognizing cultic status as pure and impure) and enumeration of the creaturely life to be saved (two of each species or rather seven pair of the clean, one pair of unclean). Further it is not only by means of these substantive or topical criteria that the competing discrepant traditions can be distinguished; each is marked by its own characteristic syntax and lexicon. Herein lies the justification for the diachronic analysis of the Bible according to the standard historical-critical method. The two contiguous passages cannot construe in terms of a narrative poetics that derives the text from the artistic genius of the narrator. The interpreter’s methodology, to comprehend the text, must consequently shift from a synchronic poetics to a method informed by diachrony: to an analysis of the text as the work of a redactor who has conjoined originally separate literary documents.20 Although therefore valuable for its diachronic perspective on the text, by itself standard historical-critical scholarship would not suffice for a comprehensive textual exegesis. Instead, it would be much more concerned to isolate the separate literary or traditional strata to which narrative or legal passages belong, determine their distinctive features, and attempt to date them relative to one another. In fact, older commentaries frequently separate their expositions of the flood story according to the J-source and the P-source without providing a coherent interpretation of the text as it stands.21 20 Sternberg briefly refers to the flood story in several instances in the context of his analysis of the varieties and significance of repetition. He astutely points out the failure of Cassuto to resolve one of its repetitions (p. 376) and by way of contrast attempts to resolve other of its repetitions in terms of a deliberate narrative structure, the sequence of “forecast” and “enactment.” He argues that the latter structure functions to elucidate the character of Noah: the narration of his obedient entry into the ark reveals what was implied in the proleptic description of Noah as “righteous” (p. 388; cf. pp. 418, 439). In light of the analysis here, Sternberg’s reference to a single sequence of forecast and enactment overlooks the pleonasm of double command and triple compliance. 21 The best classical literary-critical analysis on the flood is Gunkel, Genesis, with exposition of the Yahwist’s (J) version (pp. 59–77; ET 60 –79), the Priestly (P) version,

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What has not been adequately studied, either by conventional historical-critical scholarship or by the newer, synchronic approaches, is the impact upon the mind of ancient Israelite scribes of such mutually exclusive traditions, each of which is authoritative. There has been growing attention to the clear evidence within the biblical text that ancient Israelite authors were not only transmitters of texts but also interpreters of them and that significant elements of the Bible clearly derive from sophisticated exegetical activity on the part of ancient Israelite authors. This attention to so-called “inner-biblical exegesis” is one of the most important recent developments within biblical scholarship within the past two decades.22 (pp. 137–52; ET 138 –51), and the redactor’s techniques for combining them (139– 40; ET 141– 42). The most thorough recent treatment is Claus Westermann, Genesis 1–11 (Minneapolis: Augsburg, 1984), 384– 458. A valuable “primer” to source criticism, with a discussion of Genesis 6 – 9, is Norman C. Habel, Literary Criticism of the Old Testament (Philadelphia: Fortress, 1972), 29– 42. There has been a series of challenges to the source-critical analysis of Genesis 6 – 9: Cassuto, A Commentary on the Book of Genesis, 2:3–140; Eduard Nielsen, Oral Tradition (SBT 11; London: SCM, 1954), 95–103; and Gordon J. Wenham, “The Coherence of the Flood Narrative,” VT 28 (1978): 336 – 48. An excellent critique of these and other attempts to disprove the documentary hypothesis is found in John A. Emerton, “An Examination of Some Attempts to Defend the Unity of the Flood Narrative,” VT 37 (1987): 401–20; and 38 (1988): 1–21 (in two parts). Not included in Emerton’s critique are two more recent works: Isaac M. Kikawada and Arthur Quinn, Before Abraham Was: The Unity of Genesis 1–11 (Nashville: Abingdon, 1985), 83–106; and Gary A. Rendsburg, The Redaction of Genesis (Winona Lake, Ind.: Eisenbrauns, 1986), 9–13. For a refutation of the work of Kikawada and Quinn, see P. Kyle McCarter, “A New Challenge to the Documentary Hypothesis,” BRev 4:2 (April 1988): 34 –39. For an astute rebuttal of Rendsburg’s methodology, see the review by Marc Zvi Brettler, JQR 78 (1987): 113–19. An attempt to demonstrate difficulties in the source-critical approach while not altogether rejecting its validity is Loewenstamm, “The Flood,” 93–121. 22 The most comprehensive treatment of inner-biblical exegesis is Michael Fishbane, Biblical Interpretation in Ancient Israel (2d ed.; Oxford: Clarendon, 1988), which provides a thorough bibliography. See also the ground-breaking study by Nahum M. Sarna, “Psalm 89: A Study in Inner Biblical Exegesis,” Biblical and Other Studies (ed. Alexander Altmann; Brandeis University Studies and Texts 1; Cambridge, Mass.: Harvard University Press, 1963), 29– 46, reprinted in idem, Studies in Biblical Interpretation (JPS Scholar of Distinction Series; Philadelphia: Jewish Publication Society, 2000), 377– 94 (stressing precedents in cuneiform literature); Géza Vermes, “Bible and Midrash: Early Old Testament Exegesis,” The Cambridge History of the Bible (ed. Peter R. Ackroyd and Christopher F. Evans; Cambridge: Cambridge University Press, 1970), 1:199–212; and Brevard S. Childs, “Psalm Titles and Midrashic Exegesis,” JSS 16 (1971): 137–50. Converging with the above approach to inner-biblical exegesis are the important studies by Sanders and Childs of the ongoing reinterpretation and reapplication of the formative canon by Israelite authors. See James A. Sanders, Torah and Canon (Philadelphia: Fortress, 1972) and, most recently, From Sacred Story to Sacred Text: Canon as Paradigm (Philadelphia: Fortress, 1987). See also Brevard S. Childs, Introduction to the Old Testament as Scripture (Philadelphia: Fortress, 1979), 69– 83. For a critique of the

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I. Setting the Agenda: Why Biblical Law Matters

What evidence is there in the narrative for the editors’ awareness of the fearful asymmetry of the accounts concerning Noah? Immediately after the last passage quoted, the editor announces the flood’s onset: (6) Noah was six hundred years old when the Flood came, waters upon the earth. (7) Noah, with his sons, his wife, and his sons’ wives, went into the ark because of the waters of the Flood. (8) Of the clean animals, of the animals that are not clean, of the birds, and of everything that creeps on the ground, (9) two of each, male and female, came to Noah into the ark, as God had commanded Noah. (10) And on the seventh day the waters of the Flood came upon the earth. (Gen 7:6 –10)

Noah, having already been credited for complying with each of the two previous inconsistent divine commands regarding the animals, is now for the third time credited for obedience as he presumably watches the animals enter the ark apparently of their own volition. However the force of this third compliance formula, the note that the animals entered the ark “as God had commanded Noah” [     ], is absolutely unclear: the final creaturely cargo of the ark complies properly with neither prior divine command. In this new formulation the categorization of the animals as clean or unclean, which refers back to 7:2 (the second passage quoted) is rendered contextually problematic since only two of each, not seven pair of clean and one pair of unclean as originally commanded, are here to be preserved. Even on its own terms, of course, this passage cannot logically be construed. If “two of each” [  ] are to be preserved, irrespective of their cultic purity, why make the clean/unclean distinction at all? As lacking any clear referential force and thereby rendered contextually meaningless, the clean/unclean distinction is therefore rather a lexical tag by means of which the writer of the verse attempts to preserve the categorization of the creatures found in the second source while harmonizing it with the number scheme of the first source, in which a single pair of each creature is to be preserved by Noah (6:19 –20). 23 latter’s approach, see James Barr, Holy Scripture: Canon, Authority, Criticism (Philadelphia: Westminster, 1983). 23 For the verse as redactional, see Gunkel, Genesis, 62– 63 (ET 63); Samuel Rolles Driver, The Book of Genesis, with Introduction and Notes (Westminster Commentaries; 12th ed.; London: Methuen, 1926), 90. This analysis is rejected by Nielsen, Oral Tradition, 98. Correctly recognizing the “mixed text” at stake but unable to conceptualize the reason why, and thus dismissing the verses as deriving from “an interpolator,” see John Skinner, A Critical and Exegetical Commentary on Genesis (2d ed.; ICC; Edinburgh: T. & T. Clark, 1930), 154. More recently, with a focus on the role of the redactor in combining P and non-P materials, see David M. Carr, Reading the Fractures of Genesis: Historical and Literary Approaches (Louisville, Ky.: Westminster John Knox, 1996), 58– 62.

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To recapture the literary and intellectual dynamics responsible for this text, the attentive reader must adopt hermeneutics as a theory of reading. Although ostensibly a consecutive narrative, the passage cannot be read on its own terms without its forcefully breaking down the reader’s expectation of the text’s coherence. Far from deriving from a narrator whose goals are to produce an artistic text, whose accomplishments are discerned by means of poetics, the verses derive from a redactor confronted by a hermeneutical crisis: clearly contradictory traditions concerning the flood, each of which is equally authoritative. The Israelite conception of the authority of the canon required the preservation of each of these traditions: the canon is conservative in its hermeneutics (Deut 4:2; 13:1 [ET 12:32]). The editor therefore retains the two texts in sequence. Confronted thereby by their clear inconsistency, he attempts in a third, new text, to provide an exegetical harmonization of their differences which serves only to underscore them. He purchases a nominal lexical consistency at the cost of revealing his diachronic editorial hand. In his anxious attempt to preserve each source, he subverts both: the compliance formula signals the breach of both previous divine imperatives. Consistent with neither, the now exegetical text is in fact a new literary creation whose origins have no direct ground in tradition (revelation); the text derives from exegesis. The canon is radical in its hermeneutics: the very requirement for conservation requires its breach. There are other texts in the Bible, particularly in the legal corpora, in which biblical editors highlight the very discrepancies they are concerned to reconcile. Such harmonizations cannot be read but as profoundly exegetical artifice whereby the Bible calls attention to its own textuality; thus they form aporia whereby the Bible deconstructs itself. On the one hand, at the stage of the formation of the Pentateuch, this and other equally inconsistent texts were retained and redacted together. On the other hand, this very explicitly contradictory (inconsistent) canon imposed upon the editor the burden of exegesis. As Nahum Sarna, James Sanders, Brevard Childs, Michael Fishbane and others have so powerfully demonstrated, exegesis is not what happens only after the biblical text is complete.24 Rather exegesis is part of the very literary—hermeneutical—dynamic that produces the text. The text itself is a product of what it engenders; its modern readers respond in kind to, and thereby sustain, the interpretive activity that gave it birth. I have tried to demonstrate in this section the contributions that diachronic analysis can offer to the interpretation of the biblical text, together with the literary and hermeneutical issues it raises. Although Sternberg’s formulation of poetics stresses (literary) history as providing an essential 24

See n. 22 above.

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I. Setting the Agenda: Why Biblical Law Matters

context for the interpretation of biblical narrative in a way that many practitioners of the Bible as Literature movement do not (p. 70), he shares with them the effective restriction of expositional legitimacy to synchronic textual analysis. That methodological dualism, whereby diachronic sourcecritical analysis is retained merely as ancillary, illuminating only the background of the text, cannot, I think, be sustained in light of the issues I have pointed to here. As such, the new literary method which invalidates the old, privileging synchrony to the exclusion of diachrony, flattens, obscures, or lacks the means of explicating some of the most exciting features of the biblical text, and much of ancient Israelite literary creativity. Further, the exclusive derivation of the text from a single author (narrator), even if only heuristically maintained, risks returning a modernizing scholarship to the pre-critical midrashic method of the early rabbis who, for dogmatic reasons, were constrained to avoid the intimations of literary history within the Pentateuch. Common to the synchronic methodology of both ancient rabbinic exegesis and Sternberg’s poetics is a notion of the text’s coherence, its unitary derivation from a single author. Contradictions and redundancies are conceptualized as everywhere legally or didactically (rabbinic) or artistically (Sternberg) purposive and intentional. In contrast, the analysis here draws on Spinoza to allow the contradictions and redundancies to stand. Such aporia, made central to hermeneutics by Spinoza, alone allow the recovery of the literary history of the Bible and its implications for interpretation.

The Nature of the Israelite Revelation Sternberg’s book alternates between a consideration of the proper methodology for narrative exposition and the thesis that biblical narrative can only be comprehended in light of the ideology that it both narrates and reflects. Sternberg is concerned with providing not merely a descriptive aesthetics of narrative but, more profoundly, a theory concerning the cultural and intellectual context of Israelite literature. Sternberg argues that the unique form of omniscience that distinguishes biblical narrative from other ancient forms of apparent narratorial omniscience, Homeric and Near Eastern, is unprecedented in literary history. Sternberg properly does not countenance any notion of a natural or inevitable evolution of this prose form either from Israel’s cultural neighbors or within Israelite literary history itself. Instead, “the Bible’s poetics appears to have sprung full-blown” (p. 232). Sternberg argues evocatively for a profound cultural breakthrough, a revolutionary trans-

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formation of experience and cognition unique to ancient Israel,25 as alone accounting for the unique attributes of biblical narrative. Although the factuality of such a radical break with the past cannot be doubted, he contends, its actual historical dynamics lie beyond the realm of analysis or reconstruction and are marked rather as miraculous: Within the same mode of narration—the omniscient—the Bible’s reality model and its compositional status are poles apart from the Homeric or Near Eastern. It all goes back to an epistemological revolution, which shifted the center of gravity from existence to knowledge. The shift . . . manifests itself all along the biblical line: doctrine, value, interest, plotting, narration, reading process. (pp. 88 – 89) Working independently, the Bible and Homer created a remarkable art of sequence, with the possible difference that the Bible broke with time-honored conventions of narrative in the process and the certain difference that its artistic revolution correlated with an ideological revolution. How this triple miracle happened in Israel, God only knows; but there can be no doubt that it did happen. (pp. 231–32)

Although he never uses the word directly, it seems clear that Sternberg is here providing an account of the Israelite revelation. In its drive to account for the distinctiveness of Israelite literature, Sternberg’s poetics of narrative becomes, at least in part, a secular narrative theology: the text points to the omniscience of the Creator. Sternberg formulates the distinctiveness of Israelite literary culture in terms of monotheism’s “epistemological revolution”—the assonance with revelation is evocative—that rejects the pagan concern with “existence” to emphasize instead “knowledge.” He argues that both “Homer and Oriental [Near Eastern] paganism” conceptualize the difference between the divine world and the human world in terms of “existence”: the gods are immortal, humans are mortal. In contrast, Israel’s revelation reformulates that divine/human distinction in terms of knowledge: “God is omniscient, man limited, and the boundary impassable” (p. 46). The epistemological revolu25

For interesting recent attempts to formulate the distinctiveness of ancient Israel in light of Karl Jaspers’s notion of “axial age breakthroughs” (Vom Ursprung und Ziel der Geschichte [Munich: Piper, 1949], 15–106), see the essays by Shmuel Eisenstadt, Benjamin Uffenheimer, Moshe Weinfeld, Peter Machinist, and Hayim Tadmor, The Origins and Diversity of Axial Age Civilizations (ed. Shmuel N. Eisenstadt; Albany: State University of New York Press, 1986), 127–224; Jóhann Páll Árnason, “The Axial Age and Its Interpreters: Reopening a Debate,” in Axial Civilizations and World History (ed. Jóhann Páll Árnason, Shmuel N. Eisenstadt, and Björn Wittrock; Jerusalem Studies in Religion and Culture 4; Leiden: E. J. Brill, 2005), 19– 49; Jan Assmann, “Axial ‘Breakthroughs’ and Semantic ‘Relocations’ in Ancient Egypt and Israel,” in Axial Civilizations and World History, 133–156; and Robert N. Bellah, “What is Axial about the Axial Age?” Archive of European Sociology 46 (2005): 69– 87.

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tion confers informational privilege: the revelatory conceptualization of God in terms of omniscience has as its literary reflex the omnisciently privileged narrator, unrestricted by empirical human knowledge (p. 87). The literary device which that omnisciently conceived narrator permits, free indirect discourse (pp. 52–53), is equally a textual reflex of the Israelite conception of unrestricted divine knowledge. As God sees into the human heart, so does the narrator reveal interiority. Is it indeed the case that a revolution in epistemology is central to the Israelite experience of God such that the Bible’s narrative “serves the purpose of staging and glorifying an omniscient God” (p. 89)? I believe that Sternberg misstates the case in characterizing revelation in terms of epistemology. Earlier I pointed out Sternberg’s conceptual slide in the book’s opening sentences from biblical narrative to the Bible as a whole. To be sure, Sternberg himself points out his exclusive focus on narrative, noting in his preface, “I reserve for separate treatment issues like the Bible’s generic variety . . .” (p. xi). In effect, however, he restricts that variety, as far as a possible incorporation into a poetics is concerned, to the genres that are most obviously “literary”: on the next page he presents as a brief sample of “generic variety” the “meaningful opposition between prose narrative and poetry or parable” (p. xii). Consistent both with this note concerning the artistically interesting biblical genres and with the shift from narrative specificity to the more comprehensive question, “What kind of text is the Bible . . . ?”, is a striking generic omission. The legal corpora of the Bible play a minimal role in both Sternberg’s conception of the genres to which a literary method may be applied and his conception of revelation.26 Despite the truly extraordinary intellectual scope of his book, key biblical texts are absent. Not found among his expositions is any examination of Sinai, biblical law, the covenant and its commandments, the Mosaic reformulation of the law on the plains of Moab, or the texts that refer to them.27 Nor, to be fair, should Sternberg in a book concerned with narrative be expected to refer to them (although the omniscient narrator figures importantly in them too)—were it not for the book’s own aim and claim: from the standpoint of a narrative poetics to address the question, “What 26

Sternberg does present his emphasis on the epistemological revolution as something that has been overlooked, in contrast to more conventional formulations which stress: “monotheism, the suppression of myth, the rise of ethics and personal responsibility” (p. 46). 27 In the context of my use of Spinoza on pp. 11–15 above, I have to point out that Spinoza himself rejects the specific applicability of biblical “ceremonial law” to moderns in ch. 5 of the Tractatus (pp. 59–70). In doing so he distinguishes the binding intent of the law, morality, from its specific prescriptions.

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kind of text is the Bible . . . ?” and to provide thereby an account of Israelite literary and cultural distinctiveness. The issue is not simply one of being comprehensive as regards the generic variety of the Bible. The question is rather one of the biblical text’s own priorities. At the descriptive level it is accurate to note the ideology implied by “the segments of law interspersed (say) throughout the story of Exodus” (p. 41). Conceptually speaking, however, it is rather the law which contains the narratives. In the Decalogue’s first commandment, the entire antecedent narrative of the Exodus is reduced to but a relative clause in God’s introductory self-identification: “I Yahweh am your God who brought you out of the land of Egypt, the house of bondage: You shall have no other gods besides me” (Exod 20:2–3). The narrative of liberation provides the basis for the nation’s obligation to God and, thus, the justification for the nation’s first priority: fidelity to the covenant. The text presents revelation as primarily the revelation of cultic, ethical, and civil law; indeed all biblical law is consistently presented as revelatory in origin. The primary concerns animating biblical authors relate therefore to problems of action and obedience rather than of knowledge. These concerns constitute a constant motif in the narrative corpus. From the garden story of Genesis on, the major focus is the interplay of obedience and disobedience, whether individual, patriarchal and matriarchal, tribal, royal, priestly, or national. This motif of obedience is strikingly absent in Sternberg’s own précis of the Bible (p. 48). Indeed, Sternberg’s brief reference to the fall narrative (Genesis 3) provides striking confirmation of my argument that he privileges epistemology at the expense of law (morality). As proof of “how the Bible’s new departures in poetics and epistemology make the most of each other,” Sternberg astutely shows that, of the two trees in the center of that garden, only “the Tree of Knowledge . . . has no trace in pagan mythology” (p. 89). Sternberg’s emphasis on epistemology, however, causes him to truncate his reference to the biblical text which, whenever it uses the qualitative attribute, speaks of “the tree of knowledge of good and evil” (Gen 2:9, 17). Sternberg’s telling omission of the attributive genitive, absent also in his other references to the tree (pp. 12, 89, 104, 278), restricts to terms of absolute knowledge, or epistemology, a tree whose fruit rather provides knowledge of moral discernment.28

28 Elsewhere Sternberg notes the pattern of “repetition with variation” in Eve’s reformulation (Gen 3:2–3) of the original divine command (Gen 2:16 –17; pp. 390 – 93; 431, 436). A theological study whose subtle interpretations of this and other “retelling” within the story bears literary implications is: Dietrich Bonhoeffer, Creation and Temptation (London: SCM, 1966), 64– 92.

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The narrative corpus, which Sternberg makes his sole focus, by itself necessitates his conception of revelation as epistemological. Given his exclusion of ethical and legal texts from the corpus of texts on which he grounds his theory, what real content can the Bible have, other than what emerges from the analysis of a decentered narrative: “gaps, ambiguities, redundancy, exposition, temporal ordering, omniscient viewpoint, reading process, patterns of analogy, alternative forms of reference, indirect characterization and rhetoric” (p. xii). All these have as their theoretical reflex the question of the narrator’s control, which then points to his knowledge, which raises the question of epistemology, which in turn becomes the cultural foundation for the literary strategies. The argument is circular: the corpus of texts admitted into the literary canon itself controls the literary and cultural generalizations that can be made from them. In effect, Sternberg restricts primary expositional legitimacy to the narrative texts of the Bible: he creates an ungrounded canon within the canon in which only the narrative texts are salutary for interpretation. So central is law to the hermeneutics of the Hebrew Bible that Rashi (R. Solomon ben Isaac, 1040–1105 C.E.) begins his commentary on the Bible’s first verse by forcefully raising the question of the justification for narrative altogether: “R. Isaac said: ‘The Torah should have begun with, “This month shall mark for you [the beginning of the months” (Exod 12:2)]’—for that was the first commandment that Israel was commanded. ‘What is the reason, then, for beginning with the [narrative of ] creation?’ ”29 29 Abraham Berliner, ed., Raschi: Der Kommentar des Salomo b. Isak über den Pentateuch (2d ed.; Frankfurt: J. Kauffmann, 1905; repr., Hildesheim: Georg Olms, 1999), 1 (Hebrew; my translation; as often in rabbinic literature, the original truncates the lemma, which is completed here in the bracket). The best edition of Rashi’s Commentary on the Pentateuch, citing the classical sources that he frequently (as here) draws upon, is ayim Dov Chavel, ed., Perushe Rashi al ha-Torah (3d ed.; Jerusalem: Rav Kook Institute, 1985–1986), (Hebrew). Chavel’s textual notes show how Rashi embeds his own clarification (“for that was the first commandment . . .”) in his reuse of R. Isaac’s remark. In the original, the discussion and the lesson drawn from it continue beyond the excerpt provided here. Although the precise identity of the R. Isaac whom Rashi here cites is unclear, the problematic of the question is ancient and, at least in part, Tannaitic. The question concerning the justification for the Bible’s beginning with cosmogony is found in Genesis Rabbah 1:2; see Bereschit Rabbah mit kritischem Apparat und Kommentar (ed. Chanoch Albeck and Julius Théodor; Veröffentlichungen der Akademie für die Wissenschaft des Judentums; 3 vols.; Berlin: Akademie/M. Poppelauer/Itzkovski, 1912–1936; 2d. ed., Jerusalem: Wahrmann, 1965; repr., Jerusalem: Shalem, 1996), 1:4 –5. For the comparative question about beginning with creation rather than law, raised in the name of R. Isaac, Rashi’s source is Midrash Tanuma, Bereshit 11; see the edition of Salomon Buber, Midrash Tanchuma: Ein agadischer Commentar zum Pentateuch von Rabbi Tanchuma ben Rabbi Abba, zum ersten Male nach Handschriften aus den Bibliotheken zu Oxford, Rom, Parma und München herausgegeben (3 vols. in 1; Vilna: Wittwe & Gebrüder

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Transforming R. Isaac’s provocative question into the terms of genre theory, it may be rendered, “Why is there narrative rather than law?” In other words, why does the Bible not simply begin immediately with the heart of God’s revelation to Israel, the law, which, although textually later, is conceptually prior? Sternberg’s larger point, that the Bible is fundamentally modern in its literary structure and in the interpretive demands it places upon its readers (pp. 53, 409, 436 –37), would in fact be corroborated with reference to the legal corpora. Sternberg astutely refuses to equate chronological antiquity with conceptual primitivism and recognizes that the structure of the biblical text constitutes thought, even if not discursively or philosophically formulated (pp. 46, 89). In a superb comparative study of cuneiform and biblical law, J. J. Finkelstein cogently argues that the Bible is the very source of the (modern) idea of the person: that biblical law is modern in implicitly providing a coherent formulation of the person as unquantifiable in finite terms, as morally infinite in value. In contradistinction, Finkelstein argues, the cuneiform legal corpora remain conceptually as well as chronologically ancient. Their system of penalties does not register a consistent distinction between offenses against the person and against property: in other words, that the two constitute separate ethical categories, infinite person and finite chattel, is not fully articulated. Finkelstein attempts to confirm his hypothesis in each case with reference to the conception of the human in other literary genres.30 Sternberg’s dichotomy in method, synchrony versus diachrony, involves a parallel dichotomy in content: narrative versus law. In each case, Romm, 1885), 2:7. The question is raised in nearly identical terms in the name of the third century Amora, Yannai, in Song of Songs Rabbah 1:29; see the edition of Samson Dunsky, Midrash Rabba Shir ha-Shirim (Tel Aviv: Dvir, 1980), 27. Also note Midrash Leqa Äov, ha-mekhuneh Pesitah zuÅrata al amishah umshe Torah, vol. 1, Genesis, on Gen 1:1 (ed. Salomon Buber; Vilna: Wittwe & Gebrüder Romm, 1884; repr., Jerusalem: [n.p.], 1959/1960), 3. As for the identity of R. Isaac, there is some evidence that Rashi here honors his own father (cf. Rashi on Gen 37:20). That the Tanuma also refers to R. Isaac, however, suggests a more ancient rabbi with the same name; so Menahem Kasher, Torah Shelemah (New York: American Biblical Encyclopaedia Society, 1949), 1:13 n. 52. Resolution of this question awaits further progress on the manuscript history of the Tanuma family of midrashim. 30 Jacob J. Finkelstein, The Ox That Gored (Transactions of the American Philosophical Society 71:2; Philadelphia: American Philosophical Society, 1981), 13–14, 25– 47. Finkelstein builds on the important article by Moshe Greenberg, “Some Postulates of Biblical Criminal Law,” Yehezkel Kaufmann Jubilee Volume (ed. Menahem Haran; Jerusalem: Magnes, 1960), 5–28; repr., idem, Studies in the Bible and Jewish Thought (JPS Scholar of Distinction Series; Philadelphia: Jewish Publication Society, 1995), 25– 41.

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Sternberg restricts his interpretive attention to the former to the effective exclusion of the latter. The narrative focus of Sternberg’s poetics, which does not refer to the implications of the legal corpora for the conceptualization of revelation, points to the interrelation between a canon and the theory of textual significance, or hermeneutics, derived from it. Sternberg’s narrative canon, in which the law plays no meaningful theoretical (literary, artistic) role, which effectively silences Sinai and law-giving, comes closer to imposing a Pauline law-gospel dichotomy in its conception of what is salutary than to providing a coherent reading of the Hebrew Bible. If biblical law indeed constitutes a stumbling block to a literary approach, the law is nonetheless essential to a theory of revelation and of the communicative aims of Israelite authors. That the study of biblical law is also essential specifically to the literary study of the Bible, I shall now attempt to demonstrate.

The Literary Implications of Biblical Law The legal corpora of the Bible are not only central to an exposition of the Bible’s revelatory content, they are also central to a proper conception of the Bible as literature. If the convention of anonymity characterizes the narrative texts of the Bible, as Sternberg rightly stresses, what characterizes the legal texts is the convention of voice, the divine or prophetic attribution of law. Each convention—voice and anonymity—equally constitutes a claim for textual authority, strikingly in each case by disclaiming explicit human authorship. Sternberg uses the anonymous narrator’s omniscience, echoing that of God, as evidence for the place of absolute knowledge as part of the text’s ideology. The claim to absolute authority differently asserted in the legal corpora by means of divine or prophetic voicing provides an independent means for the recovery of the conception of authority in ancient Israel. This latter conception in turn may be compared to that which Sternberg posits for the narrative texts. The issues already pointed to in the discussion of the flood story emerge even more sharply in the study of the hermeneutics of biblical law. The redactional preservation of discrepant yet equally authoritative texts leads to editorial attempts at their harmonization, which in turn introduces additional inconsistencies that further breakdown the text’s (literal) authority. Central to what the Bible communicates, in other words, through the aporia which emerge by means of a method informed by diachrony, is the Bible’s own textuality: both the interpretive issues out of which it emerges and those which it mandates its readers to confront. The legal corpora

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demand a shift from poetics to hermeneutics as a theory of biblical reading. There is an initial impediment, of course. The legal corpora have been essentially excluded from the literary study of the Bible because they are conventionally read as legislative texts rather than as literary ones. As practical texts, they are perceived to lack both the freedom from direct external reference and the aesthetic features that distinguish literature from other forms of writing. There are, however, several reasons why the legal corpora should in fact be understood in literary terms.31 Although both biblical and ancient Near Eastern legal corpora seem like judicial texts to the modern reader (and the cuneiform legal texts were so understood when first discovered less than a century ago), recent scholarship has demonstrated that in fact they were never implemented as law, nor were they intended to have a direct application to society. Among the many thousands of court dockets in existence from southern Mesopotamia, there is no record, for example, of the Laws of King Hammurabi (1792–1750 B.C.E.) ever being cited in an actual judicial proceeding, despite its continually being recopied as part of the scribal curriculum for over a millennium.32 Not only is there little external evidence for the judicial citation or implementation of the legal corpora, but even on internal grounds they lack “laws” critical to the organization of any society. In the case of the Pentateuch, for example, there are no laws to regulate either normal marriage or inheritance.33 Rather than constituting “legal codes,” therefore, the legal collections of the ancient Near East, and the biblical corpora influenced by them, represent theoretical reflections on ethical issues, considerations of the proper thing to do in a certain case, such reflections the product of a scribal intelligentsia and primarily circulated within scribal schools.34 As

31

In references to biblical law that follow, my focus is on the civil and ethical laws of the Bible; the ritual laws have a somewhat different literary history. 32 Godfrey R. Driver and John C. Miles, The Babylonian Laws (2 vols.; Oxford: Clarendon, 1952), 1:53. The one citation of Laws of Hammurabi found occurs in a political treaty nearly one thousand years after the Code’s promulgation. Strikingly, the citation is not of the actual laws, but of the curses found in the poetic frame of the Code; see Rykle [Riekele] Borger, “Marduk-zakir-öumi I. und der Kodex ammurapi,” Or 34 (1965): 168– 69. 33 See Samuel E. Loewenstamm, “Law,” The World History of the Jewish People, vol. 3: Judges (ed. Benjamin Mazar; New Brunswick [N.J.]: Rutgers University Press, 1971), 231– 67. Loewenstamm’s explanation, however, diverges from the one proposed here. 34 Raymond Westbrook, Studies in Biblical and Cuneiform Law (CahRB 26; Paris: J. Gabalda, 1988), 1–7.

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the intellectual products of an ongoing literary and exegetical tradition, the texts are much closer to literature than conventionally assumed.35 There are two further important correctives to the view that the legal corpora are not literary. First, the legal corpora, everywhere attributed to an authoritative speaker known from the narrative frame, can be analyzed—no less than the narratives—in terms of voice or persona, point of view, gapping, repetition, structure, and so on. As such they contain many of the stylistic features characteristic of literary texts.36 Second, the contribution of literary theory to the study of contemporary legal texts is increasingly being recognized as important.37 Indeed, one recent study suggests parallel paradigm shifts in new approaches to biblical studies and the Critical Legal Studies movement so far as the conception of the text is concerned.38 The benefits of conceptualizing the legal corpora in literary terms, of enriching the literary study of the Bible through recourse to biblical law, can best be demonstrated by turning to an examination of the literary issues they raise. I have already noted that one of the features that distinguishes the biblical concept of revelation is that it is a legal revelation. The attribution of the ultimate authorship of a corpus of law to God and its designation as his personal will are unique in the ancient Near East to the Hebrew Bible. By way of contrast, the convention of the great second millennium B.C.E. cuneiform texts, like Laws of Hammurabi, is a royal speaker: Hammurabi is both the textual speaker of the laws and, in terms of the text’s explicit 35 For the general approach taken here, see Finkelstein, The Ox That Gored (see n. 30 above). On the disjunction between the actual legal practice of Mesopotamia and the legal collections, see his article “Cuneiform Law,” Encyclopaedia Judaica (2d printing; Jerusalem: Encyclopaedia Judaica, 1973), 16:1505f–1505k. 36 Robert Polzin applies Valentin N. Voloöinov’s concept of “reported speech” to Deuteronomy’s laws in Moses and the Deuteronomist (New York: Seabury, 1980), 47– 69. Note Fishbane’s productive use of voice in Biblical Interpretation in Ancient Israel, 260 – 61, 417–18, 530 –31. With a different methodology, see the “total interpretation” of Baruch J. Schwartz, “A Literary Study of the Slave-Girl Pericope—Leviticus 19:20 –22,” Studies in Bible (ed. Sara Japhet; ScrHier 31; Jerusalem: Magnes, 1986), 241–55. 37 Among recent studies stressing the importance of literary theory and hermeneutics to the study of modern law is the collection of articles in “Symposium: Law and Literature,” Texas Law Review 60 (1982): 373–586. Some of those articles are reprinted in the more comprehensive Sanford Levinson and Steven Mailloux, eds., Interpreting Law and Literature: A Hermeneutic Reader (Evanston: Northwestern University Press, 1988). Of extraordinary interest for its use of rabbinic texts to adduce hermeneutical principles which the author then applies to constitutional law is Robert M. Cover, “The Supreme Court 1982 Term. Foreword: Nomos and Narrative,” Harvard Law Review 97 (1983): 4– 68. 38 Peter J. Haas, “From Savigny to CLS: Legal Thought and the Biblical Text,” (typescript photocopy of paper presented at the annual meeting of the Society of Biblical Literature, Chicago, 19–22 November, 1988).

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assertions, their author.39 In this context of the literary history of the genre, the Israelite attribution of law to God, whatever the precise historical experiences it reflects, represents the attempt to assert the absolute authority of the law. It most likely also represents an attempt to validate Israelite values in the face of the more established high cultures of Mesopotamia and Egypt, whose literary canons—the very word “canon” is ultimately Sumerian in origin40—were already ancient when Israel emerged as an historical state.41 Few cultures have been more aware than ancient Israel of their “belated” position in intellectual history and of the authority of prior texts. This convention of the attribution of all law to God, either directly or through Moses, his prophetic intermediary, leads in turn to a series of fascinating hermeneutical issues. The very convention of authoritatively voiced law, combined with notions of canonicity, led to the preservation in ancient Israel of multiple and originally independent legal corpora, much as separate legal collections are to be found in cuneiform literature. Beginning during the exile, however, confronted with a threat to their national existence, Judean scribal editors began to collect these originally separate legal collections and combine them together with narratives. The text they eventually created, the Pentateuch, thereby embeds in its narrative three separate collections of laws: the Covenant Code (Exod 21:1–23:19), the Holiness Code (Lev 17–26), and the laws of Deuteronomy (chapters 12– 26). The hermeneutical implications of this redactional feat are enormous and, indeed, the very achievement points to political compromise between different social groups in Israel as well as to a sophisticated body of accompanying oral interpretation.42 On the one hand, because each of these three legal collections originates either from a separate period of Israelite history or from a separate social stratum of ancient Israelite society, they are frequently inconsistent with one another in their content or require39 See Greenberg, “Some Postulates of Biblical Criminal Law,” 5–28; and Bernard M. Levinson, “ ‘You Must Not Add Anything to What I Command You’: Paradoxes of Canon and Authorship in Ancient Israel,” Numen 50 (2003): 1–51 (at 12–15). 40 Nahum M. Sarna, “Bible: The Canon, Text, and Editions,” EncJud (Jerusalem: Encyclopaedia Judaica, 1972), 4:817. 41 Textual stabilization begins approximately 2250 –2225 B.C.E. in Mesopotamia; see A. Leo Oppenheim, Ancient Mesopotamia (rev. ed.; Chicago & London: University of Chicago Press, 1977), 18. He discusses the contents and implications of the standardized written tradition on pp. 16 – 30. 42 Morton Smith, “Pseudepigraphy in the Israelite Literary Tradition,” in Pseudepigrapha I: Pseudopythagorica, Lettres de Platon, Littérature pseudépigraphique juive (ed. Kurt von Fritz; Entretiens sur l’antiquité classique 18; Vandoeuvres, Geneva: Fondation Hardt, 1972), 191–215, with ensuing discussion, 216 –27.

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ments, if not actually contradicting or even polemically reformulating one another. On the other hand, each of the three mutually inconsistent legal corpora is made simultaneously and equally authoritative: each is attributed to divine revelation.43 The corpus of law thereby ascribed to revelation becomes contradictory, incomprehensible without interpretation. The interpretive resolution of such contradictory laws is possible in either of two basic modes: either synchronic rabbinic exegesis or diachronic historical-critical scholarship. What is particularly striking in this connection is not only that the attempt to resolve (synchronically) the contradictory legislation of the Pentateuch has its origins within the Bible itself, but that the exegesis of authoritative Scripture within Scripture should itself acquire authoritative status as Scripture. Even more striking is that such harmonistic exegesis should assert itself as conforming to the original stipulations involved, should thereby present exegetical law as the original signification of the law. For example, the postexilic Chronicler, in 2 Chr 35:13, asserts as “according to the law” his legal harmonization of the contradictory Passover laws of Exod 12:9 and Deut 16:7—although it conforms to neither!44 The parallel with the narrative harmonization in the flood story, where the redactor’s “just as God had commanded Noah” (Gen 7:9) signals conformity more exegetically wished-for than evident, should be obvious. Literary history—human authorship and revision of law, the obvious need for new laws to develop in response to ongoing social and economic change—is everywhere ostensibly denied by means of the attribution of law to God or Moses. Yet precisely the thoroughness of such attributions undermines the veil of redactional illusion. The very repeated denial of literary history succeeds in affirming it. The achievement of the biblical editors is that they retain the aporia which reveal their hand even as that hand is dissembled or camouflaged. The hermeneutical implications of this retention of aporia is that the very assertion of textual authority itself is made inseparable from its interpretation and ultimately, for the reader who thinks in historical terms, its deconstruction. The divine attribution of the laws points finally to the divine voice of human exegesis. 43

See the formulation of the hermeneutical issue by Fishbane, Biblical Interpretation, 163. 44 See Menahem Haran, Temples and Temple-Service in Ancient Israel: An Inquiry into the Character of Cult Phenomena and the Historical Setting of the Priestly School (Oxford: Clarendon, 1978; repr., with new preface and corrections, as Temples and Temple-Service in Ancient Israel: An Inquiry into Biblical Cult Phenomena and the Historical Setting of the Priestly School [Winona Lake, Ind.: Eisenbrauns, 1985]), 322; H. Louis Ginsberg, The Israelian Heritage of Judaism (Texts and Studies of the Jewish Theological Seminary of America 24; New York: Jewish Theological Seminary, 1982), 58; and Fishbane, Biblical Interpretation, 134 –37.

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A clear example of the Bible’s deconstructing itself in this way is found in the book of Leviticus, which concludes with a colophon, standard in Near Eastern ritual texts, that functions as a catch-line to summarize the book’s contents: These are the commandments that Yahweh gave Moses for the Israelite people on Mount Sinai. (Lev 27:34)

The catch-line marks the foregoing legal and ritual material as deriving from God’s revelation to Israel upon Sinai. Such an attribution is fine, except that it is preceded by one nearly identical, although somewhat more detailed, at the conclusion of the immediately preceding chapter: These are the laws, rules, and directions that Yahweh established, through Moses on Mount Sinai, between Himself and the Israelite people. (Lev 26:46)

This colophon clearly marks a terminus ad quem for the priestly prescriptions of Leviticus whose authority is asserted through their attribution to Sinai. The identical claim at the end of the following chapter clearly constitutes an embarrassment of colophonic riches and points to the book’s last chapter, concerned with vows, as a literary appendix to Leviticus. The attempt to authorize it as equal in authority with the preceding material by means of the authority claim of the colophon calls that claim, in its contextual redundancy, into question. The very assertion of the authority of the text precludes credulity; the text, which doth protest too much, betrays its own textuality and compels its interpretation.45 Perhaps the greatest trope of textual authority, of profound hermeneutical significance, is the book of Deuteronomy, the work of seventh century B.C.E. scribal intellectuals concerned to effect a series of important transformations of Israelite religion, paramount among which was the restriction of sacrifice to a single, central site: the Jerusalem Temple.46 In doing so they had to controvert an ancient altar law, ascribed to Yahweh at Sinai and which immediately follows the Decalogue, that tolerates precisely the opposite: sacrifice is acceptable “in any place” (Exod 20:24 [20:21 in some printings]). Moreover, as the necessary consequence of restricting all legitimate sacrifice to the Jerusalem sanctuary, they had to make a second fundamental innovation in Israelite cultic life. Previously all slaughter of domestic animals was a ritual act not distinguished from sacrifice in that it had to be carried out at an altar (Exod 20:24a; cf. Lev 45

This analysis has been accepted by Jacob Milgrom, Leviticus 23–27: A New Translation with Introduction and Commentary (AB 3B; New York: Doubleday, 2001), 2401. 46 For the emphasis on the role of scribes, see Moshe Weinfeld, Deuteronomy and the Deuteronomic School (Oxford: Clarendon, 1972; repr., Winona Lake, Ind.: Eisenbrauns, 1992).

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17:3–7). For the Deuteronomists to permit nonresidents of Jerusalem to eat meat in the context of the restriction of sacrifice to Jerusalem, it was also necessary to legitimate secular slaughter as distinct from cultic sacrifice. The reforming authors of Deuteronomy had therefore to overcome a hermeneutical problem created by ancient Israel’s emerging literary canon. They had to sanction a pair of cultic innovations, centralization of sacrifice and permission for secular slaughter, that contradicted authoritative “Scripture.” Their fascinating technique for justifying these innovations in Israelite literary and legal history shows the sophistication of the intellectual and exegetical culture of ancient Israel. First the authors of Deuteronomy altogether disclaim their own authorship and instead take refuge in the device of pseudepigraphy. They employ the authoritative voice of Moses as textual speaker, although Moses would have lived fully half a millennium before. Second, they cite and reformulate the very Exodus lemma they must overcome, repeatedly recontextualizing it in such a way as to make it command both of their cultic innovations (see Deut 12:13–14).47 Through this technique of citation and transformation, the authors of Deuteronomy paradoxically borrow from the authority of the Exodus lemma in order to authorize their subversion of its original meaning. In so doing, and in their recourse to the pseudepigraphic voice of Moses, the authors of Deuteronomy disclaim their own authorship and deny literary history. They cloak their fundamental transformation of Israelite religious history, that is to say, of the formative canon, as nothing new, as but a Mosaic report of what God required at Sinai: “as I commanded you” (Deut 12:21). As a result of their studied transformation of literary history, the Deuteronomists become the authors of the very authoritative traditions upon which they ground their innovations. They “author-ize” their own revisionist originality. Remarkably, precisely their denial of their own voice enables them all the more profoundly to assert their authority to revise an authoritative text attributed to revelation! In their gesture of exegetical deference and nonoriginality, they radically assert their freedom to revise the received cultural canon. The explicit denial of an innovation in literary history enables its implicit, and true, creation. The dialectical hermeneutics of Deuteronomy raises the question of the self-understanding of the text’s authors. Do the authors of Deuteronomy believe their transforming exegesis of the altar law is what Exod 20:24 intended; or is the exegetical recourse to the lemma a merely formal way of maintaining the authority of the text? This hermeneutical issue is not only characteristic of many similar problems concerning the legitima47 For detailed exegesis, see Bernard M. Levinson, Deuteronomy and the Hermeneutics of Legal Innovation (New York and Oxford: Oxford University Press, 1997), 28– 43.

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tion of innovation within the legal literature of the Hebrew Bible. The same issue is in fact central to much subsequent Jewish literary and intellectual history, as Gershom Scholem brilliantly demonstrates for the postbiblical period.48 He points to a long postbiblical trajectory in which literary history is in fact camouflaged in two ways. Explicit authorship is denied through recourse to pseudepigraphy, the attribution of the text to authoritative figures from the past,49 while innovation is denied through the text’s self-presentation as a mere exegetical exposition of what was latent in the original revelation.50 Does the Tannaitic claim concerning the Sinaitic origin of the Oral Law represent what early scholars actually thought, for example, or was it an attempt to legitimate halakic innovation in the face of cultural safeguards precisely against such innovation? Similarly, do the Kabbalists believe the tenets of the Zohar to be Sinaitic in origin, their teachings, Tannaitic? Or is the Zohar’s Tannaitic voice a subterfuge by Moses de León (c. 1240–1305 C.E.) to sanction innovation by conferring upon it the mantle of instant antiquity?51 It is clear that the origins of this trajectory in intellectual history, both the technique of pseudepigraphy and the stance of exegetical passivity, lie in ancient Israel, as Michael Fishbane demonstrates.52 That the revelatory authority of the legal texts is a redactional trope forces a reconsideration of Sternberg’s claim that the absolute authority of the omniscient narrator reflects the absolute authority of the omniscient God. Sternberg sharply bifurcates divine and human knowledge and makes that claim of epistemological difference central to his reconstruction of the ideology of ancient Israel. “God is omniscient, man limited, and the boundary impassable” (p. 46). This barrier that Sternberg establishes between finite human knowledge and infinite divine knowledge is no less 48

Gershom Scholem, “Revelation and Tradition as Religious Categories in Judaism,” The Messianic Idea in Judaism and Other Essays on Jewish Spirituality (New York: Schocken, 1971), 282–303. See the elaboration by Geoffrey H. Hartman, “On the Jewish Imagination,” Prooftexts 5 (1985): 201–20, esp. 210. 49 Although Scholem does not refer to it, the same issues arise with the sectarian Temple Scroll from Qumran which strikingly presents late sectarian innovations, interwoven with rearranged passages from the Pentateuch, as a divine pseudepigraph; as a result, Yahweh from Sinai proclaims the halakah of Qumran. See Yigael Yadin, The Temple Scroll (3 vols.; Jerusalem: Israel Exploration Society, 1983), 1:71. 50 See the illuminating article of Martin S. Jaffee, “The Pretext of Interpretation: Rabbinic Oral Torah and the Charisma of Revelation,” God in Language (ed. Robert P. Scharlemann and Gilbert E. M. Ogutu; New York: Paragon House, 1987), 73– 89. 51 On the issues involved in Scholem’s pseudepigraphic dating of the Zohar, see David Biale, Gershom Scholem: Kabbalah and Counter-History (Cambridge, Mass. and London: Harvard University Press, 1979), 115–21. 52 See Fishbane, Biblical Interpretation in Ancient Israel, 257– 66, 530 –33, who builds on the article by Smith, “Pseudepigraphy,” 191–215 (see n. 42 above).

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rigid in its formulation than his methodological formulation of “the line between source and discourse” (p. 22), which, so far as the explication of textual meaning is concerned, confines diachronic method to genetic ancilla and restricts expositional legitimacy to a synchronic poetics. In each case the structure is that of hierarchy and of dualistic opposition. Given his conceptual structure of an absolute, divine omniscience distinct from— independent of—merely finite human knowledge, how then does Sternberg conceptualize the merely human text, with its aporia, as the source for the revelation of divine omniscience? Is not authoritative omniscience—the claim of epistemological completion, whether narratorial or divine—itself a trope, itself finally to be repossessed as a textual strategy, as an interpretive assertion? Sternberg’s dichotomy between divine and human must itself be interpretively overcome.53 Authority itself is an interpretive trope, whether it be asserted through anonymity or through voicing, through narrative or through law. The use of a synchronic method, poetics as a systematization of narrative rules, tends to underemphasize the extent to which the text’s own claims of authority reflect an ongoing process of redactional reformulation. Sternberg’s recourse to a notion of a narrator whose authority is unimpeachable works unintentionally to reify—to detextualize—the concepts both of the narrator and of God, to shift attention away from the role of editors in the formation of biblical literature. These issues strongly emerge through the study of the legal corpora and the use of a method informed by diachrony. The Hebrew Bible therefore requires hermeneutics as a theory of reading to overcome not only Sternberg’s double bifurcations of method (synchronic versus diachronic) and content (narrative versus law), but also of authority (divine versus human): to recognize their necessary interrelation and the centrality of interpretation to all. Arguably one of the most important dynamics within ancient Israel is the simultaneous creation of literary history and the obscuring of it, authorship and its obfuscation. This double movement can be comprehended only in terms of the dialectic of hermeneutics, not in terms of a bifurcating poetics. The exclusive privileging of the divine or prophetic voice in the legal corpora paradoxically lends greater dignity to the human voice as that voice pseudepigraphically asserts its right to supplement and reformulate authoritative texts, as that human voice ascribes its compositions to revelation. The creation of literary history through the attempt to obscure innovation, the paradoxical privileging of the human voice by means of the 53 For an alternative, note Finkelstein’s dialectical interpretation, The Ox That Gored, 7– 8. In more explicitly philosophical terms, see Brayton Polka, “Interpretation and the Bible: The Dialectic of Concept and Content in Interpretative Practice,” The Journal of Speculative Philosophy 4 (1990): 66 – 82.

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trope of the divine or prophetic speaker, the retention of multiple, competing, and inconsistent texts, each ascribed with equal authority to revelation and therefore together unintelligible without interpretation: all these issues cut to the heart of what is most creative about ancient Israelite literature. They also clearly overlap with contemporary literary theory’s concern with the history of authorship,54 with the impact of a literary canon upon subsequent creation (including the anxiety of influence),55 and with deconstruction. To have access to what is most compelling about ancient Israelite literary creativity requires a hermeneutics grounded jointly in synchronic and diachronic method and in the Bible’s legal corpora no less than in its narrative. This is the thesis scrivened in delight, The reverberating psalm, the right chorale. Wallace Stevens, “Esthétique du Mal,” xv

54 See Michel Foucault, “What Is an Author?,” Textual Strategies: Perspectives in Post-Structuralist Criticism (ed. Josué V. Harari; Ithaca: Cornell University Press, 1979), 141– 60. 55 Harold Bloom, The Anxiety of Influence: A Theory of Poetry (New York: Oxford University Press, 1973). Deuteronomy’s “misreading” of the Exodus lemma has further theoretical implications in light of Bloom’s A Map of Misreading (New York: Oxford University Press, 1975).

2. The Seductions of the Garden and the Genesis of Hermeneutics as Critique Few texts in the western tradition have been more absorbing, yet more the subject of misreading and projection, than has the narrative of Adam and Eve and the serpent in the Garden of Eden (Genesis 2–3). Read wrongly, the narrative entails the loss of paradise, the end of innocence, and the fall from grace, all through the seductions of the lithe serpent. If it stopped at that, however, the narrative would enact what it purports only to narrate: would itself become the subtle serpent coiled around the beguiling tree in the midst of a mythic garden. Read as a myth of loss, it would seduce the reader with its language and imagery, just as vulnerable Eve and then adoring Adam are seduced by the serpentine coils of language. Such a mise en abyme would be less a text than an idol: something that compels the surrender of autonomy and the failure of critique.1 After all, the idol is that which cannot be interpreted: that which claims, or is granted, the status of noumenal thing in itself. But the greater testament to the story’s power is that the text challenges such projections: it provides resistance. The story of the fall, like a poem by Wallace Stevens, is about how to read.2 Read correctly, the narrative challenges seduction. By means of its dialectical structure, it mandates interpretation as the critique of appearances. The Genesis narrative turns the mythic structure of origination against itself because it cannot be read in linear terms. It seeks to move the reader from credulity to autonomy and agency. In this didactic and transformative 1 “[I]n modern literary theory a mise en abyme or ‘duplication intérieure’ [refers to] . . . the embedding in a work of a representation of this work.” See Jean-Pierre Sonnet, The Book within the Book: Writing in Deuteronomy (Biblical Interpretation Series 14; Leiden: E. J. Brill, 1997), 79 (with further bibliography). The self-referential structure, whereby a literary text presents an image of itself in one of its details of plot, was most systematically explored for fiction by Lucien Dällenbach, Le Récit spéculaire: essai sur la mise en abyme (Collection Poétique; Paris: Seuil, 1977). 2 See the perspective opened up on Wallace Stevens by Brayton Polka, “The Critique of Poetry: Text, Philosophy, and the Bible,” Religion and Literature 20 (1988): 1– 23; and idem, “The Image’s Truth: Wallace Stevens and the Hermeneutics of Being,” in On Interpretation: Studies in Culture, Law, and the Sacred (ed. Andrew D. Weiner and Leonard V. Kaplan; Graven Images 5; Madison: University of Wisconsin Press, 2002), 38– 67.

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function, the biblical narrative is consistent in its goals and thought with biblical law. Presupposed by any notion of law is the legal subject: the autonomous agent who can choose to obey or disobey the law and be held accountable on the basis of that choice. But precisely that notion of agency, which is conventionally presupposed, should rather be put to the question as to its origins. Analysis of other cultures, such as those in the ancient Near East where sophisticated legal systems existed, reveals a surprising absence of the notion of agency and of the concept of “person.”3 Moreover, legal historians or scholars of comparative law often assume that a system of religious law, with its theological sanctions and motivations, precludes the allegedly secular ideas of individual agency and moral autonomy.4 The purpose of this chapter is to suggest that the reverse is true. The narrative of Genesis 3 self-consciously seeks to challenge both credulity and heteronomy. It thus provides a powerful means to reflect upon the significance of text and interpretation within the broader biblical tradition. Descriptively, poetry and law have nothing more in common than that both involve words and language. Conventionally, they represent distinct literary genres, employ different literary conventions and forms, have different literary histories and backgrounds, different authors, different audience, different interpreters, different tolerances of ambiguity, and serve different social and cultural functions. While sharing language as the basis of their formulation, each uses language in divergent ways. But if the terms of analysis shift from descriptive analysis to ontology, the entire system of classification must be reorganized. The essential distinction should no longer be the formal or generic one (between law and poetry) but rather the conceptual one between texts (whether they are law or poetry) that either do or do not: (1) conceptualize the human as a person with 3 Most famously, the Laws of Hammurabi (ca. 1755 B.C.E.); see the valuable edition of Martha T. Roth, Law Collections from Mesopotamia and Asia Minor (2d ed.; SBLWAW 6; Atlanta: Scholars Press, 1997), 71–142. For the argument that the cuneiform law of ancient Babylon does not recognize a distinction between the categories “person” and “property,” see Moshe Greenberg, “Some Postulates of Biblical Criminal Law,” in Yehezkel Kaufmann Jubilee Volume (ed. Menahem Haran; Jerusalem: Magnes, 1960), 5–28; reprinted in idem, Studies in the Bible and Jewish Thought (JPS Scholar of Distinction Series; Philadelphia: Jewish Publication Society, 1995), 25– 41; Jacob J. Finkelstein, The Ox That Gored (Transactions of the American Philosophical Society 71:2; Philadelphia: American Philosophical Society, 1981); and Peter Machinist, “On Self-Consciousness in Mesopotamia,” in The Origins and Diversity of Axial Age Civilizations (ed. Shmuel N. Eisenstadt; Albany: State University of New York Press, 1986), 183–202. 4 Note the deft challenge to this dichotomy by Page Smith, “The Beginning of History: the Hebrews and the Greeks,” in idem, The Historian and History (New York: Alfred A. Knopf, 1964), 3–14.

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agency and autonomy; (2) directly or indirectly mandate interpretation as an implicit relation between text and reader; or (3) embody a notion of relationship (the Golden Rule) that sanctions the autonomy of the reader in relation to the text and the neighbor in relation to the self. From this point of view, the ethical content of biblical law—the covenant that requires both “You shall love your neighbor as yourself ” (Lev 19:18; cited in Matt 22:39) and, yet more ambitiously, “You shall love the alien as yourself ” (Lev 19:34)—conforms to the structure of biblical hermeneutics, which demands an active interpreter to enter into thoughtful engagement with the text. The dialogical ethics that originates in the biblical concept of covenant thus finds its logical fulfillment in a theory of interpretation that affirms the mutual autonomy of text and reader.5 Respect for the text does not translate into credulous reading: the text’s domination of the self. Respect for the neighbor equally requires selfrespect. Meaningful relationship, whether in ethics or in hermeneutics, requires mutual autonomy and rejects domination or heteronomy. The serpent, in confronting Eve, probes the nature of relationship: autonomy or heteronomy, intimacy or dependence. At the very moment of introducing the serpent, the narrator signals what will be at stake. Adam and Eve were, in their poignant intimacy with one another, “naked () and free of shame” (Gen 2:25).6 The next verse employs assonance to highlight the risk to that closeness: “Now the serpent was more cunning () than all the creatures that Yahweh God had made” (Gen 5

See further Bernard M. Levinson, Deuteronomy and the Hermeneutics of Legal Innovation (Oxford and New York: Oxford University Press, 1997), 144 –57; idem, “The Hermeneutics of Tradition in Deuteronomy,” JBL 119 (2000): 269– 86 [repr., ch. 11 infra]; and idem, “The Sinai Covenant: The Argument of Revelation,” in The Jewish Political Tradition, vol. 1, Authority (ed. Michael Walzer et al.; New Haven: Yale University Press, 2000), 23–27 [repr., ch. 3 infra]. Models of dialogical ethics include Martin Buber, I and Thou (trans. Walter Kaufmann; New York: Charles Scribner’s Sons, 1970); and his rich but often overlooked essay, Urdistanz und Beziehung (4th ed.; Beiträge zu einer philosophischen Anthropologie 1; Heidelberg: Schneider, 1978); ET, “Distance and Relation,” [trans. Ronald Gregor Smith] Hibbert Journal 49 (1951): 105–13; repr. in idem, The Knowledge of Man: A Philosophy of the Interhuman (ed. Maurice Friedman; New York: Harper & Row, 1965), 59–71. See also John Macmurray, The Form of the Personal, vol. 1, The Self as Agent, and vol. 2, Persons in Relation (Gifford Lectures 1953–1954; London: Faber and Faber, 1957–1961). Few scholars, however, take the additional step of exploring the relation between the structure of ethics and the structure of hermeneutics. Establishing the mutual consistency of hermeneutics and ethics, such that both are based upon the Golden Rule, is Brayton Polka, The Dialectic of Biblical Critique: Interpretation and Existence (New York and London: St. Martin’s, 1986); and idem, Truth and Interpretation: An Essay in Thinking (New York: St. Martin’s; London: Macmillan, 1990). 6 All biblical translations are mine in what follows.

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3:1). The tension created by the resonance of the two terms with one another introduces plot into the elegiac moment of timeless intimacy between the naked man and woman in the garden, where otherwise there would be no narrative. Despite the linear form of the text, the structure of its thought is, from the beginning, paradoxical. Consciousness is everywhere presupposed— there is no single point in time in which there is a fall, understood as a loss of immediacy. The serpent’s question is the agent of reflection about God, about truth, about history, about the conditions for life in the world: “Did God really say, ‘You shall not eat from any tree of the garden?’ ” (Gen 3:1). As soon as Eve, upon being addressed, begins to respond, she has already begun to reflect upon the conditions of her life, her relation to God, her relation to Adam, and her freedom of choice. Thus, this “first pious question” of theology is no less a question of philosophy or of hermeneutics.7 The serpent, so wonderfully sibilant in Milton’s rendition, is indeed the most subtle of all beasts: less a satanic seducer than a Philadelphia lawyer, for what the serpent says precisely cites God’s earlier instruction, if deftly rearranged. God’s original instruction to Adam began with a comprehensive grant and was only thereafter qualified by a single restriction: You may surely eat from every tree of the garden; But of the tree of the knowledge of good and evil you may not eat; For on the day that you eat of it you shall surely die. (Gen 2:16 –17)

The serpent cunningly reverses the syntax of the original divine dictum. The initial object of the permission clause (“from every tree of the garden”) now becomes the object of the prohibition, while the restriction (“you shall not eat”) now instead constitutes a blanket prohibition: “Did God really say, ‘You shall not eat from any tree of the garden’?” (Gen 3:1) The change in syntax effects a change in theology: it transforms the God who granted largesse to Adam, with but a single qualification, into the God who, without restriction, denies.

7

Dietrich Bonhoeffer depicted the serpent as asking “the first pious [fromme] question” (Creation and Fall: A Theological Exposition of Genesis 1–3 [ed. John W. de Gruchy; trans. Douglas S. Bax; Dietrich Bonhoeffer Works 3; Minneapolis: Fortress, 1997], 103–110 [at 107]; for the German, see idem, Schöpfung und Fall [ed. Martin Rüter and Ilse Tödt; Dietrich Bonhoeffer Werke 3; Munich: Chr. Kaiser, 1989], 96 –102 [at 99–100]). The volume is based upon a series of lectures given by Bonhoeffer during 1932–1933. In the first English translation of the lectures, fromm[e] was instead rendered as “religious” (Dietrich Bonhoeffer, Creation and Temptation [London: SCM Press, 1966], 67). With “pious,” the newer edition captures the irony intended in the use of the more ambiguous German term.

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The serpent’s dialogue with Eve isolates her and, as has long been recognized, it was not even she, but Adam, to whom God originally spoke. She is now forced into the position of defending God—God is not quite that bad, she in effect retorts. In the process she too recasts the divine injunction. She adds a restriction not originally present: The woman said to the serpent, “From the fruit of the trees in the garden we may eat. But as for the fruit of the tree in the midst of the garden, God said, ‘You may neither eat from it nor may you touch it, lest you die!’ ” (Gen 3:2–3)

Given the number of paradoxes entailed in God’s original instruction, it is hardly surprising that both serpent and Eve should revise it, reading into it their own views of God and the nature of his rule. The narrator formally marks the divine injunction as an imperative: “And Yahweh God commanded the man” (Gen 2:16, emphasis added). The Hebrew uses the infinitive absolute to emphasize the modal construction:    , “you may surely eat.” The Hebrew also employs a special form of the negative, the prohibitive  rather than the vetitive  , to stress the apodictic nature of the prohibition (the same negative form is used in the Decalogue of Exodus 20). Nonetheless, despite these narratorial and rhetorical markers, how could Adam properly understand the instruction in any meaningful way as a command if he had no knowledge, the very thing from which he is to abstain? Absent the forbidden fruit of knowledge, Adam could not distinguish between the instruction as a command requiring his obedience and the instruction as merely describing an inevitable law of nature. No more could he distinguish between death as punishment for infraction and death as the natural result of eating a poisonous fruit. If the command were meant to test his obedience, surely his knowing it as a command—and thus his possession of that which is forbidden him—is essential to that test? If Adam could only understand the instruction descriptively as a law of nature rather than prescriptively as a matter of choice, what significance altogether is there in the very language of      , “Yahweh God commanded the man” (Gen 2:16)? Although presented in narrative time prior to the fruit’s having been eaten, the command can only make sense as a command if it is breached. In what follows, the serpent places the encounter with contradiction at the center of justice, theology, and interpretation. No longer subtle, the serpent directly challenges Eve’s apologetics to present God as a deity who not only withholds every tree but who also employs deceit to enforce the subordinate status of humans: But the serpent said to the woman, “You will not die! God knows that on the day that you eat of it your eyes will be opened and you will become like gods, knowing good and evil.” (Gen 3:4 –5)

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Now there is only one problem with the serpent’s calumny of God. Each of its two key components is true. First, Adam and Eve do not die when they eat the fruit (Gen 3:7– 8). Second, God himself corroborates the serpent’s claim of the fruit’s transformative powers: Then Yahweh God said, “See, the man has become like one of us, knowing good and evil; and now, he might reach out his hand and take also from the tree of life, and eat, and live forever.” (Gen 3:22; emphasis added)

Precisely at the point of encountering contradiction, Eve begins to see the tree in a new way. As she projects onto it her own displaced sense of autonomy, she confronts her own capacity for desire: So when the woman saw that the tree was good for food, and that it was a delight to the eyes, and the tree was to be desired to make one wise, she took of its fruit and ate; and she also gave some to her husband, who was with her, and he ate. (Gen 3:6)

What the narrative here presents in linear and chronological terms is that for which there can be no genetic account, that for which there is no genesis: the conception of the human as agent and as autonomous.8 Genesis begins with an account of creation, an account of a God so powerful that he creates the world without any mythic combat with other gods, so powerful that he merely has to say,  , “Let there be light,” and nature complies:  , “And there was light” (Gen 1:3). In the Hebrew, only a single syllable distinguishes the divine command from nature’s immediate execution of it. But when this same god speaks to the humans he has created, as both he and the reader rapidly discover, humans alone in nature can say no and are capable of resistance. In creating man and woman in his image, capable of independent action to the point of disobeying him, God has in fact created them as autonomous persons. The literary form of the biblical narrative in effect provides a philosophical defense of freedom and agency as the essential ground of human existence. There can be no fall, no delayed or accidental achievement of autonomy, because agency is the touchstone of the author’s conception of the human as person. The idea of “person” markedly contrasts with the determinate function that Marduk assigns humans in the Babylonian Epic of Creation, or Enuma Elish: Blood I will mass and cause bones to be. I will establish a savage, “man” shall be his name. Verily, savage-man I will create. He shall be charged with the service of the gods That they might be at ease!9

The final purpose clause there makes it clear that, in the Babylonian account, humans are conceptualized, quite literally, as tools designed to serve

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a single function. Following the lesser gods’ sacrificial worship of Marduk in the Temple, humans would spare these gods the arduous labor of cleansing the Temple of the resulting animal blood, waste, and offal. The biblical narrative rejects this Near Eastern notion of man and woman as having a determinate function in the world. The concept of imago dei— that God creates humans in his image (Gen 1:26)—thus means autonomy, authority, and the capacity for creation. The rejected Near Eastern myth of a theomachy that is the essential precondition to cosmology (as in the conflict between Marduk and Tiamat in the Enuma Elish) has been transformed into a narrative of the encounter between divine will and human autonomy. Just as God creates the universe (Genesis 1), so do man and woman create history by their own choice and by their actions: the moral universe is a human creation (Genesis 2–3).89 The Pentateuch begins with the Genesis narrative: with the image of the couple in the verdant, self-watering garden, paradoxically confronted by a command, proper obedience to which requires its breach; what follows is expulsion from that impossibly englistered mythic landscape. The Pentateuch concludes with a corresponding liminal moment, as Israel is about to enter the promised land of Canaan, a land so rich that it oozes with milk and honey (Exod 3:8; Deut 6:3; 11:9; 26:9, 15; 27:3; 31:20). Deuteronomy presents its legal collection (chapters 12–26) as a reciprocal treaty between God and Israel (26:16 –19; 29:1), obedience to which is the essential condition for the nation’s access to the land. At the center of this verdant new textual landscape is the Mosaic command that defines the condition for secure habitation of that land: “Choose life!” (Deut 30:19) The covenant alone bestows this “life,” which of course is not mere biological life, since the addressees in question were already alive. This notion of life is instead a conception of the self as agent: the idea that actions have consequences, that history derives from human moral action and is not the random result of either chance or fate. This passage almost certainly also mounts a sharp polemic against Near Eastern traditions that identify “life” with immortality or eternal life, as in the futile quest of 8 From a different perspective, Kenneth Burke also recognized that the narrative presents a chronology of that which has no chronological development. See his stimulating essay, “The First Three Chapters of Genesis,” in idem, The Rhetoric of Religion: Studies in Logology (Boston: Beacon, 1961), 172–272. 9 Enuma Elish, tablet 6, lines 5–8; trans. Ephraim A. Speiser, “The Creation Epic,” in Ancient Near Eastern Texts Relating to the Old Testament (ed. James B. Pritchard; 3d ed.; Princeton: Princeton University Press, 1969), 60 –72, 501–3 (at 68; emphasis added). See also Stephanie Dalley, Myths from Mesopotamia (Oxford: Oxford University Press, 1989), 228–77 (at 260 – 61); and Benjamin R. Foster, “Epic of Creation,” in The Context of Scripture, vol. 1: Canonical Compositions from the Biblical World (ed. William W. Hallo and K. Lawson Younger Jr.; Leiden: E. J. Brill, 1997), 390 – 402 (at 400).

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Gilgamesh following the death of Enkidu.10 Here life is not a matter of duration or of avoiding death and mortality. Instead, life can only be gained through moral and historical action in the community. As Edenic exit is thus transformed into renewed entry and expulsion into occupation, it is now the entire people of Israel who are enjoined to reenact the eternally present confrontation with choice. And since the hermeneutical structure of the covenant finally collapses the distinction between the text’s narrative addressee (Israel on the plains of Moab, about to enter the land) and its actual addressees, who are finally its readers, Deuteronomy directs that mandate beyond the boundaries of its explicit narrative world: “Not with our forefathers did Yahweh make this covenant but with us, we—these here today—all of us living” (Deut 5:3; see also 29:13–14).11 The covenant has no life but for the reader who enters it, but there is no partaking of the fruits of life in the covenant without interpretation.

10 Note the apt reproach of Utanapishtim at the conclusion of the flood story: “Now then, who will convene the gods on your behalf, that you may find the life that you are seeking?” The context makes it clear that eternal life is at issue. See the excellent translation by Maureen Gallery Kovacs, The Epic of Gilgamesh (Stanford: Stanford University Press, 1985), 104 (tablet 11, lines 204 –205; emphasis added). 11 See the concluding remarks to my article, “The Hermeneutics of Tradition in Deuteronomy,” JBL 119 (2000): 269– 86 (at 285– 86); repr., ch. 11 infra (273–75).

3. The Sinai Covenant: The Argument of Revelation Ancient Israelite authors almost never wrote propositionally; instead, they employed narrative, law, and other conventional literary genres to express their ideas. Even when biblical writers sought to express new conceptions of religion, social structure, or human values, their ideas assumed the forms of historical narrative and legal stipulation rather than appearing as the propositional formulations familiar to modern readers. Commentary on the Bible thus becomes an exercise in the recovery of meaning: not only the scholarly task of explaining older language and custom through history, linguistics, and archaeology but also the effort to give the ancient writers their intellectual due by showing how any given text represents an intellectual position. This means reconstructing the argument of the text in its own terms and then engaging it not merely as an ancient but also as a contemporary affirmation. With the narrative of Yahweh’s revelation at Mount Sinai, where an argument for a new conception of authority and community is shrouded in the metaphor of a mountain as the site of divine revelation—a mountain itself shrouded in smoke, fire, and cloud—these issues are most acute. To begin with, what is striking in the biblical account of the Sinai covenant is that the promulgation of law is embedded in a larger narrative, without which it is incomplete: the covenant exists in history. Although the revelation is situated in literary terms as a foundational moment in the history of the nation, from the vantage point of most scholarship, the terminology and concept of “covenant” () more likely represent the perspective of later writers associated with the Deuteronomic movement of the seventh century B.C.E. For these writers, the narrative of the Sinai covenant represents an ex post facto statement of first principles. The claim is that Israel was constituted as a people at Sinai when Yahweh revealed himself as the God who enters into a covenantal relationship with his people. The divine proclamation of covenantal law is as much a moment of creation as when God spoke to bring the world into being in Genesis 1. It is through the Sinai covenant that the nation gains its identity and history, both its past as a people redeemed from slavery and its future, which is given in the mandate to minister to the world: “You shall become

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for me a kingdom of priests and a holy nation” (Exod 19:6; my translation). This originary moment—the moral and legal constitution of Israel—is completely separated from the beginning of the narrative within which it is contained: the account of creation in Genesis 1. Neither the nation nor its laws existed from the beginning of time. The election of the nation, whereby it was brought into a special relationship to God, derives from history, not from cosmological destiny. With these premises the ancient Israelite author proposes a very different model of law and national existence than is evident in the older literature of ancient Babylon, for example, which provides probably the closest parallel to the biblical material and which Israelite scribes almost certainly knew, directly or indirectly. Like the account of Sinai, the Laws of Hammurabi (ca. 1755 B.C.E.) were embedded in a literary frame that explains their origin and authority: but there, the election of Babylon, with its temple, and the appointment of Hammurabi, its king, represent divine destiny decreed from the beginning of time, independent of human history or agency. All that is assumed as absolute in this ancient Near Eastern literary text is implicitly called into question by the biblical author, who begins with universal history rather than national ideology, who removes destiny from history, who writes Israel out of creation. This writer’s account of Sinai entails the radical and utopian argument that the existence of the nation is conditional upon the people’s assent and ongoing commitment to the covenant: Thus shall you say to the House of Jacob and tell the House of Israel: “You have seen what I have done to Egypt, how I have borne you upon the wings of eagles and brought you to me. Now, if you truly obey me and observe my covenant, then you shall become to me more treasured than all the other peoples, for the entire earth is mine. Indeed, you shall become to me a kingdom of priests and a holy nation!” These are the words that you shall speak to the Israelites. (Exod 19:3– 6; my translation)

Everything hangs upon that introductory “if ” ( ). What is left unsaid is telling: the consequences of disobedience. Perhaps the metaphor of Israel as a vulnerable fledgling carried upon Yahweh’s back accounts for the disinclination, in this moment of intimacy, to spell out the “if not.” But that alternative is no less present for being unspoken. It is remarkable that the very text that sets forth the idealized beginnings of the nation in divine election simultaneously places that concept under critical scrutiny. The nation’s existence is not an absolute end in itself but is contingent upon obedience to moral law. The founding moment is a fragile moment that already contains an implicit challenge and warning. The text’s authors, even in their myth of origins, incorporate a notion of critique that seeks to avert chauvinism. Almost certainly, later editors have cast the promise of

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election in light of the vicissitudes of history. But there is a larger point to be made. The assent necessary for participation in the covenant cannot simply be that one-time original agreement emphasized by the narrator: “The entire people answered simultaneously, saying: ‘All that Yahweh has spoken, we will do’ ” (Exod 19:8; my translation). Assent must continue for each generation within ancient Israel and must finally include the assent of the reader, who is invited to enter the narrative of election and who, in the direct address of the Decalogue, is summoned to participate in the covenant. History is revealed as covenantal and existence becomes a moral postulate. There is no precedent in the literature of the ancient Near East for an entire nation to be directly addressed by a deity. Although the literary representation of a theophany accompanied by natural phenomena like the trembling of the earth and the quaking of mountains was not original to ancient Israel, any more than the literary genre of law was,1 an entire cluster of features distinguish Exodus 19 –20 from Ugaritic or Babylonian exemplars. Unique in the Sinai narrative is the conception of a god who reveals himself publicly to an entire nation, cutting across boundaries of class, gender, and ethnicity. The divine revelation takes the form of a direct address to the people in which God proclaims his will as the law that constitutes the terms of the covenantal relationship between nation and deity. The form is the content: the direct address to the people requires a human response to the divine initiative. The content is the form: Yahweh reveals the covenant as the structure of human community. The literary structure of the Decalogue (Exod 20:2–17) is remarkable. In the divine proclamation of the covenant, God, speaking as “I,” directly addresses each Israelite as “Thou,” ungrammatically using the intimate singular form rather than the expected plural. Each addressee thereby knows himself or herself to be directly addressed by God. Within the 1

On the literary tradition of theophany, see Jörg Jeremias, Theophanie: Die Geschichte einer alttestamentlichen Gattung (2d ed.; WMANT 10; Neukirchen-Vluyn: Neukirchener Verlag, 1977); and Samuel E. Loewenstamm, “The Trembling of Nature during the Theophany,” in idem, Comparative Studies in Biblical and Ancient Oriental Literatures (AOAT 204; Kevelaer: Butzon & Bercker; Neukirchen-Vluyn: Neukirchener Verlag, 1980), 173– 89. On the genre of the legal collection, see Martha T. Roth, “Mesopotamian Legal Traditions and the Laws of Hammurabi,” Chicago-Kent Law Review 71 (1995), 13–39; eadem, “The Law Collection of King Hammurabi: Toward an Understanding of Codification and Text,” in La Codification des lois dans l’Antiquité: Actes du Colloque de Strasbourg, 27–29 novembre 1997 (ed. Edmond Lévy; Travaux du Centre de recherche sur le Proche-Orient et la Grèce antiques 16; Paris: De Boccard, 2000), 9–31; and Adele Berlin, “Numinous Nomos: On the Relationship Between Narrative and Law,” in “A Wise and Discerning Mind”: Essays in Honor of Burke O. Long (ed. Saul M. Olyan and Robert C. Culley; BJS 325; Providence: Brown Judaic Studies, 2000), 25–31.

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narrative structure, each former slave, who previously lacked all sense of history and community, acquires an “I” at Sinai. The transformation of the slave into a person in narrative terms points to the direct address as requiring a personal response—the creation of a moral self—on the part of the reader or hearer. But that self is not conceptualized as existing only in a relation of service to the deity. Indeed, there is no mention of the deity in the second half of the Decalogue, which stipulates rather the addressee’s duties to other members of the community. The covenant creates the neighbor just as it creates the self. Adherence to the covenant brings into being a community of moral agents. The moral agent is also a historical agent: the future of the nation hangs upon how I treat my neighbor. The radical argument of this text is that there exists neither fate nor chance: history is contingent upon moral action; there is no theology without history, no duties to God without duties to the neighbor, no self except one that is construed in and through relationships to God and neighbor, no community or polity without covenant and revelation. The dialectical relationship between deity and people fundamental to the notion of covenant carries with it a clear risk of becoming broken, absolutized either into unconditional heteronomy (passive dependence upon the will of God, understood as entirely other, whereby agency and history are lost) or into unconditional agency, which is to say, tyranny (the absolute self independent of all commitment to the other). The repeated reformulations and renewals of the covenant throughout the Bible emphasize how central it was to ancient Israel’s political and religious discourse. That it provides the structure of mutuality—for placing self and other in a relationship and for conceiving the polity as a community—warrants the attention of modern readers.

4. Deuteronomy’s Conception of Law as an “Ideal Type”: A Missing Chapter in the History of Constitutional Law Descriptively speaking, the premise that “Law is the maintenance or establishment of social order . . . by exercise of coercive authority” may well be true.1 The anthropologist A. R. Radcliffe-Brown used that premise to underscore law’s role as a source of social stability. Nonetheless, the premise raises a series of important questions about the relationship of law to society. The premise posits law as a means for the social order to maintain itself, as if it were an organism, with law providing the means of maintaining homeostasis. That organic model characterizes the “functionalist” approach to social science, which Radcliffe-Brown helped found.2 In philosophical terms, however, to claim that the social order’s continued 1

An earlier version of this chapter was presented to the Society for the Study of Ancient Near Eastern Law, whose third colloquium was organized on the theme, “The Reciprocal Relationship between the Judge and Society in Antiquity” (Bar Ilan University, Ramat Gan, Israel; December 16 –18, 2001). Participants were invited to respond to this quote, as attributed to A. R. Radcliffe-Brown (Professor Aaron Skaist, letter of invitation, June 7, 2001). This focus upon sanction and coercion as the essence of law was most systematically developed by John Austin (1790 –1859), the influential legal philosopher of the analytical school. See his The Province of Jurisprudence Determined ([1832; 5th ed. 1885]; ed. Wilfrid E. Rumble; Cambridge Texts in the History of Political Thought; Cambridge: Cambridge University Press, 1995); and idem, Lectures on Jurisprudence (2 vols.; 5th ed.; London: John Murray, 1885). For a good assessment, see Herbert Morris, “Verbal Disputes and the Legal Philosophy of John Austin,” UCLA Law Review 7 (1960): 27–56. 2 See Dorothy M. Emmet, “Functionalism in Sociology,” The Encyclopedia of Philosophy (ed. Paul Edwards; 8 vols. in 4; New York: Macmillan and The Free Press; London: Collier Macmillan, 1967), 3:256 – 59. She notes the “biological, organic analogy” that functionalism presupposes, so that each social structure serves to perpetuate the organism’s ongoing life. With that approach, the “function” of any unit is “the survival of the society in its traditional given form” (257). The functionalist model was generated from small-scale, relatively homogeneous and stable societies. That foundation accounts for the model’s emphasis upon homeostasis as a social value, a concept that applies to simple biological organisms. The model does not transfer easily to more differentiated societies, where economic and demographic change triggers corresponding changes in social norms. With social change or development viewed as a breach of organic homeostasis, the functionalist approach is often associated with a conservative ideology, as Emmet notes.

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existence is its own end simply begs the larger question of means and ends. In effect, that argument posits society as a self-justifying closed universe. At this point, a number of contradictions begin to emerge. In its perfect self-reference, the monistic model of society ironically corresponds to Aristotelian theology, which conceives of the deity in similar terms: thought thinking of thinking, thought whose only object is itself.3 Although Radcliffe-Brown’s language may present itself in terms of social science, as derived from empirical investigation, it paradoxically amounts to a theology of the state: the model has deified the social order into an end-initself. Radcliffe-Brown’s premise raises questions from another perspective as well. To describe the authority of law as “coercive” implies that submission to law entails the surrender of autonomy. On that basis, the social order is constituted only in and through the heteronomy of its citizens. George Orwell’s 1984 would thus represent the ideal rule of law: social order accomplished by means of the totalization of heteronomy. The history of philosophy, however, offers more adequate conceptions of law. Immanuel Kant provides an important alternative. In the Grundlegung zur Metaphysik der Sitten [Groundwork for the Metaphysics of Morals], he argued that it is only possible to ground ethics upon a notion of autonomy and, conversely, that the only means to achieve autonomy is through ethical action.4 Kant’s “ethical” takes the form of the categorical imperative: the law that you should treat each individual as an end in himself or herself, that is, as a person who holds moral status as a co-equal member of a moral community. Kant’s concept of law is heuristic: the moral law represents the “Maßstab” [benchmark] that determines whether the laws of a given state are just and whether one’s own actions are consistent with morality. Kant sees the state as an embodiment of equally valuable citizens, as a “Reich der Zwecke” [Realm of Ends]. Once recognized as a heuristic norm, law no longer enshrines the status quo. It mandates social 3

Aristotle, Metaphysics 1072b19; see further Book , ch. 8, and Book . Immanuel Kant, Grundlegung zur Metaphysik der Sitten (Riga: Hartknoch, 1785; 2d ed., 1786). The standard Akademie Ausgabe [“Academy edition”] of this work is found in Kants gesammelte Schriften, vol. 4 (ed. Königlich Preußische Akademie der Wissenschaften; Berlin: G. Reimer [later, Walter de Gruyter], 1903), 385– 464. All modern editions include this pagination, which is employed as a standardized reference system; accordingly, see esp. 421, and 428 –34. For the most recent German edition, see Immanuel Kant, Grundlegung zur Metaphysik der Sitten (ed. Bernd Kraft and Dieter Schönecker; Philosophische Bibliothek 519; Hamburg: Felix Meiner, 1999) [here, 44– 46 and 53– 61]. Note the recent English edition with commentary: Immanuel Kant, Groundwork for the Metaphysics of Morals (ed. and trans. Thomas E. Hill Jr. and Arnulf Zweig; Oxford Philosophical Texts; Oxford: Oxford University Press, 2002) [here, 222 and 229– 34]. 4

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transformation: the vocation of ensuring the fullest possible alignment between any given state and the moral law of universal equality. This alternative view of the social function of law finds partial validation in jurisprudence. History provides important examples where the judiciary understands its role as being mandated by the law to provide a critical perspective upon the social order, calling for its transformation rather than for the maintenance of the status quo. In the American context, one need only think of the role of the Supreme Court in relation to Civil Rights legislation (desegregation, affirmative action, and school busing) or the interpretation of the right to privacy as sanctioning abortion (Roe v. Wade). Alternatively, one may recall the vision of justice articulated by the former President of the Supreme Court of Israel, Yitzhak Kahan: “[T]he end never justifies the means, and basic ethical and human values must be maintained [even] in the use of arms.”5 Two decades ago, Kahan chaired a commission that was appointed by the government to investigate massacres in two Palestinian refugee camps outside of Beirut, Sabra and Shatilla. The Christian Phalange militia had conducted the systematic slaughters in 1982 under cover of Israel’s incursion into Lebanon (Operation “Peace for Galilee”), which came in response to frequent shelling of its northern border. The commission’s final report sharply criticized the military and political leadership of the very government that had commissioned the investigation in the first place. By articulating a notion of indirect responsibility that extended beyond strict legal culpability, the Kahan Commission assumed the moral stature of prophetic critique as it held the state to a standard external to and higher than immediate self-interest. “The main purpose of the inquiry was to bring to light all the important facts relating to the perpetration of the atrocities; it therefore has importance from the perspective of Israel’s moral fortitude and its functioning as a democratic state that scrupulously maintains the fundamental principles of the civilized world.”6 What are the origins of this alternative conception, whereby law does not enshrine the social order but, as it seeks to institutionalize justice, becomes a vehicle of social transformation? To put the same question more historically, and to reach back beyond Kant: What precedents exist for the conception of the judiciary as an independent institution, one so constituted that it can rule with a voice independent of state ideology? In what 5

“Report of the Commission of Inquiry into the Events at the Refugee Camps in Beirut, 8 February 1983,” document no. 104, in Meron Medzini, ed., Israel’s Foreign Relations: Selected Documents, Vol. 8: 1982–1984 (Jerusalem: Ministry for Foreign Affairs, 1990), 296 – 381 (at 381). This document is often called “The Kahan Commission Report.” 6 Ibid.

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follows, I argue that the idea of the judiciary as an autonomous institution goes back to the legal literature of the ancient Near East. In the late seventh century B.C.E., the authors of the legal corpus of the book of Deuteronomy (chapters 12–26) provided a plan for the comprehensive transformation of the religious, judicial, and institutional structure of Judah.7 This legal corpus dates to the period when the state’s autonomy, if not its existence altogether, was jeopardized by Neo-Assyrian hegemony and repeated incursions down the Mediterranean littoral. Although its language is legal and its metaphors are religious, Deuteronomy articulates a complex vision of political philosophy, as was already clear in antiquity. The historian Josephus (37–100 C.E.) thus speaks of how Moses presented Israel “with these laws and this constitution recorded in a book.”8 He begins by describing Deuteronomy as “the code of those laws of ours which touch our political constitution,” and concludes by summarizing it as “the constitution that Moses left.”9 The two references elegantly frame his review of Deuteronomy and function like an initial superscription and final colophon that formally classify the legal corpus as a “constitution.” This seeming breakthrough in recognizing Deuteronomy’s political implications must be sharply qualified, however, because the translator of the Loeb edition of Josephus, H. St. John Thackeray, sends the wrong message with a significant anachronism. The Greek word politeiva (politeia) is not precisely equivalent to the modern concept of a political “constitution” but simply indicates “form of government.”10 The term may encompass such diverse forms of government as monarchy, tyranny, oligarchy, and democracy.11 It serves most famously as the Greek 7

See S. Dean McBride, “Polity of the Covenant People: The Book of Deuteronomy,” Interpretation 41 (1987): 229– 44; repr. in A Song of Power and the Power of Song: Essays on the Book of Deuteronomy (ed. Duane L. Christensen; Winona Lake, Ind.: Eisenbrauns, 1993), 62–77; and Frank Crüsemann, Die Tora: Theologie und Sozialgeschichte des alttestamentlichen Gesetzes (Munich: Chr. Kaiser, 1992), 235–322. The latter volume is translated as Frank Crusemann [sic], The Torah: Theology and Social History of Old Testament Law (Minneapolis: Fortress, 1996); unfortunately, a great many translation errors made their way into the volume. 8 Josephus, Jewish Antiquities, Books I–IV (trans. H. St. John Thackeray; LCL 242; Cambridge: Harvard University Press; London: William Heinemann, 1930), Book IV, §194 (p. 569). 9 Ibid., Book IV, §198 (p. 571); Book IV, §302 (p. 621). 10 Thus, in the first passage cited, Josephus would refer, more accurately, to how Moses presented Israel, in Deut, with diavtaxin th`~ politeiva~ avnagegrammevnhn, “this written disposition of the form of government” (Book IV, §194; my translation). 11 To confirm this point, Herodotus (ca. 484– 424 B.C.E.) preserves a famous, early exposition of the relative merits of these various forms of political organization. The context is a conversation that he attributes to the Persian conspirators who overthrew Cambyses and who then installed Darius as successor. The generic term used there to

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title of Plato’s Republic, where a constitution is not in question. Despite the translation error, which may represent a modernizing apologetic, these quotations confirm the extent to which, already in antiquity, the legislation of Deuteronomy was read as a political treatise. During the first centuries of this era, other Jewish communities, both in Palestine and Babylon, took the same approach as Josephus and regarded Deuteronomy as providing a model government.12 Modern scholarship seems to have lost sight of what the readers of antiquity recognized. A form of cultural amnesia causes the legal literature of the ancient Near East, both Mesopotamian and Israelite, to remain almost completely beyond the academic pale, overlooked by disciplines like legal history, political science, and constitutional theory.13 These disciplines turn almost exclusively to classical Greece and Rome to reconstruct the history of constitutional thought. Even disciplines specializing in the study of antiquity, like Classics, perpetuate a “pristine” vision of Greco-Roman political thought that leaves it remarkably untainted by the cultural legacy of the ancient Near East.14 These difficulties are far from one-sided.15 subsume monarchy, tyranny, oligarchy, and democracy as “forms of government” is politeia. See Herodotus, The Persian Wars, II, Books III–IV (trans. Alfred Denis Godley; 2d ed.; LCL 118; Cambridge: Harvard University Press; London: William Heinemann, 1938), Book III, §§80– 87 (pp. 105–15). 12 Deut was from ancient times viewed as a constitutional model by Jews. The rabbinic patriarchate in Israel during the second century C.E. and the exilarchate in Babylon were organized in the spirit of Deut; see Daniel J. Elazar, Covenant & Polity in Biblical Israel: Biblical Foundations & Jewish Expressions (New Brunswick: Transaction, 1995), 196. 13 The principal work of Eric Voegelin is no exception to this generalization. It imposes a notion of Greek philosophical reason upon the material, failing to come to terms with the way in which the Near Eastern and Israelite narrative and law represent thought, even if not formulated in propositional terms; see idem, Israel and Revelation, vol. 1 of his Order and History (5 vols.; Baton Rouge: Louisiana State University Press, 1956 –1987). In his later work, however, “to his credit, . . . Voegelin began to grasp that matters were more complex than he had presented in Israel and Revelation . . .”; see Peter Machinist, “Mesopotamia in Eric Voegelin’s Order and History,” in Occasional Papers, Eric-Voegelin-Archiv 26 (ed. Peter J. Opitz and Dietmar Herz; Munich: LudwigMaximilians University, 2001), 38. 14 Only recently has the situation begun to change. Important attempts to correct this oversight include Walter Burkert, The Orientalizing Revolution: Near Eastern Influence in the Early Archaic Age (Cambridge: Harvard University Press, 1992); Martin L. West, The East Face of Helicon (Oxford: Clarendon, 1997); and the conference volume, Kurt Raaflaub, ed., Anfänge politischen Denkens in der Antike: die Nahöstlichen Kulturen und die Griechen (Schriften des Historischen Kollegs Kolloquien 24; Munich: R. Oldenbourg, 1993). Arguing for Near Eastern influence upon Roman law, see Raymond Westbrook, “The Nature and Origins of the Twelve Tables,” Zeitschrift der SavignyStiftung: Romanistische Abteilung 105 (1988): 74 –121.

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Scholars in the fields of Assyriology and academic biblical studies have also tended to erect disciplinary walls around their areas of research in ways that make it very difficult for them to venture forth and explore the historical and cultural diffusion of Near Eastern law.16 The result of this interdisciplinary aporia, so carefully maintained by all sides, is the loss of a crucial chapter of intellectual history.17 That loss, in turn, has further consequences: it perpetuates a false dichotomy between the cultures of the 15 Ironically, even a volume providing a valuable comparative perspective on the ancient Mediterranean proves this point: Baruch Halpern and Deborah W. Hobson, eds., Law, Politics, and Society in the Ancient Mediterranean World (Sheffield: Sheffield Academic Press, 1993). While bringing together separate studies on law in ancient Mesopotamia, Israel, Greece, Rome, and in rabbinic interpretation, the larger intellectual statement intended by the collection remains unclear. The question of legal, historical, or cultural influence is not considered, one way or another; nor are comparisons or contrasts explored. 16 There are, of course, exceptions. Proposing the significance of biblical and Near Eastern law for contemporary legal and political thought are Jacob J. Finkelstein, “The Goring Ox: Some Historical Perspectives on Deodands, Forfeitures, Wrongful Death, and the Western Notion of Sovereignty,” Temple Law Quarterly 46 (1973): 169–290; idem, The Ox That Gored (Transactions of the American Philosophical Society 71:2; Philadelphia: American Philosophical Society, 1981); Eckart Otto, Das Deuteronomium: Politische Theologie und Rechtsreform in Juda und Assyrien (BZAW 284; Berlin/New York: Walter de Gruyter, 1999); Jean-Marie Carrière, Théorie du politique dans le Deutéronome: Analyse des unités, des structures et des concepts de Dt 16.18 –18.22 (ÖBS 18; Frankfurt am Main: Peter Lang, 2001); and Jean-Louis Ska, “Biblical Law and the Origins of Democracy,” in The Ten Commandments: The Reciprocity of Faithfulness (ed. William P. Brown; Louisville: Westminster John Knox, 2004), 146 – 58. The last sentence of Otto’s book makes a powerful claim (although one not directly developed within the book itself): “Die Wiege der modernen Demokratie steht nicht nur in Athen, sondern auch in Jerusalem” (“The cradle of modern democracy stands not only in Athens, but also in Jerusalem” [p. 378; my translation]). That claim provides the point of departure for Ska’s inquiry. 17 There have been several attempts to recover the tradition of Jewish political thought. See Daniel J. Elazar and Stuart A. Cohen, The Jewish Polity: Jewish Political Organization from Biblical Times to the Present (Bloomington: Indiana University Press, 1985); Stuart A. Cohen, The Three Crowns: Structures of Communal Politics in Early Rabbinic Jewry (Cambridge: Cambridge University Press, 1990); and, as an anthology of sources with commentary, The Jewish Political Tradition, vol. 1, Authority (ed. Michael Walzer, Menachem Lorberbaum, and Noam J. Zohar; 4 vols; New Haven and London: Yale University Press, 2000 –). Cohen’s volume provides an astute analysis of the strategies used by the rabbinic community to legitimate their own claim to political authority (see further n. 80 below). Given the broad audience it seeks to reach, Walzer’s rich volume does not directly engage previous scholarship on the topic. All three volumes focus specifically on “Jewish”—that is, postbiblical rabbinic—political thought. As a result, the specific legal and intellectual contribution of the ancient Near East and of ancient Israel (the Hebrew Bible/Old Testament) is primarily addressed from the perspective and religious claims of later Jewish tradition rather than on its own terms.

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eastern and western Mediterranean, between religious law and political thought, between Jerusalem and Athens, between antiquity and modernity. Consequently, the attempt to recover that lost chapter affords a different perspective not only upon the past but also upon the present.

The “Origin Myth” of the Founding of the Judicial System Many of the myths of origin found in the Hebrew Bible parallel and presuppose those attested in the cuneiform literature of the ancient Near East: accounts of cosmogony, of a theomachy between a Storm God and Sea, of a primordial flood, of the origins of humanity, and of the mythic significance of the Temple. The genre of law provides an additional context where Israelite authors drew upon the literature of the Near East. At many points, Biblical law closely corresponds to the great cuneiform legal collections in formulation, technical terminology, topos, and range of sanctions. Moreover, both the cuneiform and the biblical legal collections include provisions of substantive law as well as procedural law. Contrary to modern expectations, in the Near Eastern context the laws devoted to procedure do not merely address the question of how to invoke the substantive law; instead, they help shape that law and determine its priorities. The importance of procedural law is signaled by the symbolic location assigned it by the draftsman responsible for the Laws of Hammurabi, a legal collection whose literary-religious frame composition attributes it to Hammurabi, King of Babylon (ca. 1792–1750 B.C.E.), as first-person speaker and royal author.18 In that frame, the monarch repeatedly asserts his devotion to the cosmic ideals of kittum u mšarum, “truth and justice.” In order to drive that royal boast home, the editor of the legal corpus deliberately placed laws devoted to due process (requiring integrity in the testimony of witnesses in court and accountability of judges) at the very beginning of the monument (§§1–5). The arrangement of the laws thus underscores Hammurabi’s pious commitment to justice by establishing judicial probity as “the first priority” of the legal collection, as its cardinal principle of organization.19 As the monarch shapes his legacy for posterity 18 The more familiar term, “Hammurabi’s Code,” is a misnomer, since it is unlikely that this ancient text ever had statutory force or was even written with that intention. Moreover, as has been long noted, the text does not constitute a comprehensive “code” of laws. See the excellent edition by Martha T. Roth, Law Collections from Mesopotamia and Asia Minor (2d ed.; SBLWAW 6; Atlanta: Scholars Press, 1997), 4 –7, and for “The Laws of Hammurabi,” ibid., 71–142. 19 For the argument of the statement of value implicit in the first five laws, and their link to the literary frame, see Herbert Petschow, “Zur Systematik und Gesetzestechnik im Codex Hammurabi,” ZA 57 (1965): 146 – 72 (at 148– 49). From another point of view,

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and for the gods by presenting himself as the preeminent šar mšarim, “king of justice,” the very structure of the legal corpus sanctions that royal bid for immortality.20 Israelite authors were well tutored in the topical and formal conventions of cuneiform law. They drew upon the Mesopotamian concept of a royal propounder of law but also radically transformed it in light of their own cultural and religious priorities. They transformed precedent by making the royal legislator of biblical law the nation’s divine monarch, Yahweh.21 In that way, the ancient Babylonian generic convention of the royal voicing of law ironically provides an important legal and intellectual source for the distinctively Israelite concept of divine revelation.22 So close is the connection between the two systems of law that even techniques of legal ordering seem to have been carried over, although implemented in different ways to reflect different cultural values.23 In Israelite law, just as however, the systematics of the legal corpus entrench class privilege and rigid social stratification. They thus completely undercut the affective rhetoric of the frame, which repeatedly asserts royal solicitude for the socially marginalized (the widow, the or phan, and the poor). Identifying that ideological inconsistency, see Eckart Otto, “Soziale Restitution und Vertragsrecht: Mšaru(m), (an)durru(m), kirenzi, par tarnumar, šemiÅÅa und d erôr in Mesopotamien, Syrien, in der Hebräischen Bibel und die Frage des Rechtstransfers im Alten Orient,” RA 92 (1998): 125– 60 (at 140 n. 64). 20 This repeated self-description of Hammurabi as “king of justice” is found in the Epilogue (xlvii 77; xlviii 7; xlviii 96; and xlix 13). See Roth, Law Collections, 134 (twice), 135, 136, and the comment at 142 n. 49. 21 On the significance of the royal voicing, see Moshe Greenberg, “Some Postulates of Biblical Criminal Law,” in Yehezkel Kaufmann Jubilee Volume (ed. M. Haran; Jerusalem: Magnes, 1960), 5–28; reprinted in and cited according to idem, Studies in the Bible and Jewish Thought (Philadelphia: Jewish Publication Society, 1995), 25– 41. 22 See Bernard M. Levinson, “ ‘You Must Not Add Anything to What I Command You’: Paradoxes of Canon and Authorship in Ancient Israel,” Numen 50 (2003): 1–51. 23 For example, in both contexts, the initial law in a legal composition also played a larger theme-setting role. That technique, which Petschow was able to recover in his important study of cuneiform legal systematics (“Codex Hammurabi,” 148– 49), was also recovered for biblical law by medieval rabbinic exegesis, which devoted considerable effort to questions of legal ordering. Nachmanides (1194 –1270 C.E.) astutely identified a difficulty in the arrangement of the Covenant Code (Exod 21–23): laws concerned with manumission of slaves (Exod 21:2–11) are placed at its very beginning, where they even precede a series of apodictic laws that govern capital cases (Exod 21:12–17). The priority thereby granted to slave or property law over capital law he accurately recognized as anomalous; in fact, such an arrangement is also inconsistent with the norms of cuneiform law (which he could not have known, of course). In response, he argued that the placement of the manumission laws reflects the first verse of the Decalogue, both in topos (manumission) and in language. Thus, God’s self-introduction in the Decalogue—“I, Yahweh your God, led you out [ ] of Egypt, out of the house of bondage [, lit., slaves]” (Exod 20:2)—is echoed in reverse order (following common scribal practice in the Near East, i.e., A:B :: B:A)in the first law of the Covenant Code, which requires

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in cuneiform law, formal matters like textual sequence can thus amount to meta-legal reflections on the priorities of the legal system.24 Biblical law also manifests the explicit concern to ensure the integrity of the judicial system that is evident in cuneiform law. For example, the principle of talion (“an eye for an eye”) represents the standard punishment for physical injury to an individual in biblical law (Exod 20:24; cf. Lev 24:15–22). Later legists broadened that principle’s application so that it might also protect due process. They stipulated that false accusation in court should also be punished “measure for measure”: the perjurer is held liable for whatever punishment his accusation would have inflicted upon the accused (Deut 19:15–21). The legal rationality involved elevates talionic justice to a coherent sanction not only against physical injury but also against injury to the body of the legal system itself.25 This doubly shared interest of ancient Israel’s scribes in origin myths and in the prestigious genre of law almost certainly reflects the curriculum of the Mesopotamian scribal school, the e d u b a (É.DUB.BA.A) or bt Åuppi, manumission of male slaves after six years: “If you purchase a Hebrew slave [], six years shall he work but in the seventh year he must go out [ ] free” (Exod 21:2). The priority granted the manumission of the individual slave thus follows from the collective manumission of Israel from slavery in Egypt. In effect, the priority of manumission law affirms that the priority of the lawgiver (and thus of the legal system in this case) is freedom. Although Nachmanides could not use the language of “redactor,” he nonetheless recognized that the systematics of the laws themselves make a statement of value and are themselves a source of meaning. See Nachmanides (R. Moses ben Nachman), Commentary on the Torah (ed. Charles B. Chavel; 2 vols.; Jerusalem: Rav Kook Institute, 1959), 1:412–13 (Hebrew; translated in 5 vols., New York: Shilo, 1971). Nachmanides was preceded in his analysis by Midraš Exodus Rabbah 30:15, which may have served as his source. The best edition of this text is Midrash rabbah ha-mevuar, vol. 2, Shemot rabbah (2 vols.; Jerusalem: Makhon ha-midrash ha-mevuar, 1983), 2:90 (Hebrew). For a translation, see Midrash Rabbah Exodus (trans. Simon Maurice Lehrman; London: Soncino, 1983), 363. 24 For a tour de force defense of this position, see Finkelstein, The Ox That Gored. This brilliant analysis by an Assyriologist with a strong interest in the reception of cuneiform legal motifs by later Roman, European, and American law provides a powerful reading of the systematics of the Covenant Code (Exod 21–23) as a transformation of the values and ordering systems evident in the Laws of Hammurabi and the Laws of Eshnunna. There are difficulties, however, in his dating of biblical material to the second millennium. Moreover, in arguing that seeming textual disturbances in biblical law represent important statements of value, he invariably attributes those value statements to an assumed original legal author, rather than allowing the possibility that they represent reordering by a later editor. 25 False accusation in court, whether involving capital crime or property law, is similarly punished by talion in the Laws of Hammurabi §§1, 3, 4 (Roth, “Laws of Hammurabi,” 81– 82). The perjurer himself receives the sentence for the crime that he accuses the defendant of having committed.

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literally, “tablet house.”26 The detailed points of contact suggest that Israelite scribes had direct or indirect access to certain key components of the cuneiform curriculum.27 Just at this point of greatest reliance upon Mesopotamian precedent, however, Israelite authors exhibit their independence by departing from any precedent in Near Eastern literature known to me: they repeatedly concern themselves with providing an “origin myth” for the institutions that administer the law. To sharpen the contrast, the prologue to the Laws of Hammurabi affirms that both the monarch’s appointment to office and the right of his city-state, Babylon, to hegemony over Mesopotamia were jointly destined at the beginning of time by the fate-decree of Enlil. Both monarchy and hegemony are thus assigned primordial status and cosmic origin. The scribes responsible for the Laws of Hammurabi are equally concerned to account for the origins of the laws themselves. The scribes locate the laws not in cosmic history but in human history as the ipsissima verba of Hammurabi himself. Speaking in the first person in the literary frame of the legal corpus, he repeatedly insists that the laws are, awâtya ša ina narîya ašÅuru, “my cases, which I have in26

See Åke W. Sjöberg, “The Old Babylonian Eduba,” in Sumerological Studies in Honor of Thorkild Jacobsen on His Seventieth Birthday, June 7, 1974 (ed. Stephen J. Lieberman; Assyriological Studies 20; Chicago: University of Chicago Press, 1975), 159–79; Herman L. J. Vanstiphout, “On the Old Babylonian Eduba Curriculum,” in Centres of Learning: Learning and Location in Pre-Modern Europe and the Near East (ed. Jan Willem Drijvers and Alasdair A. MacDonald; Brill’s Studies in Intellectual History 61; Leiden: E. J. Brill, 1995), 3–16; Andrew R. George, “In Search of the é.dub.ba.a: The Ancient Mesopotamian School in Literature and Reality,” in “An Experienced Scribe Who Neglects Nothing”: Ancient Near Eastern Studies in Honor of Jacob Klein (ed. Yitzhak [Yitschak] Sefati et al.; Bethesda, Md.: CDL, 2005), 127–37; and Niek Veldhuis, Religion, Literature, and Scholarship: The Sumerian Composition “Nanše and the Birds,” with a Catalogue of Sumerian Bird Names (Cuneiform Monographs 22; Leiden: E. J. Brill, 2004). 27 For evidence of the reception of the legal component of this curriculum, see Bernard M. Levinson and Molly M. Zahn, “Revelation Regained: The Hermeneutics of  and  in the Temple Scroll,” DSD 9 (2002): 295–346 (at 301–2; 314 –17); David P. Wright, “The Laws of Hammurabi as a Source for the Covenant Collection (Exodus 20:23–23:19),” Maarav 10 (2003): 11– 87; and Bernard M. Levinson, “Is the Covenant Code an Exilic Composition? A Response to John Van Seters,” in In Search of Pre-Exilic Israel: Proceedings of the Oxford Old Testament Seminar (ed. John Day; JSOTSup 406; London and New York: T & T Clark, 2004), 272–325; repr., ch. 12 infra. The evidence is especially telling as regards Deuteronomy’s reception of treaty motifs. The Neo-Assyrian treaty form is presupposed as literary model by Deut 28, perhaps via Aramaic translations; see Hans Ulrich Steymans, Deuteronomium 28 und die adê zur Thronfolgeregelung Asarhaddons: Segen und Fluch im Alten Orient und in Israel (OBO 145; Freiburg: Universitätsverlag; Göttingen: Vandenhoeck & Ruprecht, 1995), 143– 94. Making a broader comparative argument, see David M. Carr, Writing on the Tablet of the Heart: Origins of Scripture and Literature (New York: Oxford University Press, 2005).

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scribed on my stela,” and awâtya šqurtim, “my precious cases.”28 Nonetheless, despite this concerted effort to attach a myth of origins to both the monarch’s authority and to the laws themselves, there is a striking omission. The key institutions of justice—the office of judge and the organization of the judicial system—are simply presupposed as selfevident. Their origin is nowhere addressed. Precisely that omission is directly thematized by the Hebrew Bible, which, in fact, preserves two sophisticated narratives about the origins of ancient Israel’s judicial system.29 In the context of the exodus from Egypt, shortly after the wondrous event at the Sea of Reeds, the archetypal leader Moses is represented not only as Israel’s nationalist leader but also as its chief justice: “Moses sat as judge for the people, as the people stood about Moses from dawn to dusk” (Exod 18:13).30 While visiting the Israelite camp in the desert, Jethro, the Midianite father-in-law of Moses, grew puzzled as he observed this process. As Jethro watched Moses and “saw how much he had to do for the people,” he asked him to explain why he was required to spend the entire day sitting, surrounded by a milling crowd. Upon hearing the reply—“It is because the people come to me. . . . When they have a dispute, they come before me, and I decide between one person and another . . .” (Exod 18:14 –16)—Jethro responded sharply:

28 These repeated affirmations derive from the epilogue of the legal corpus: col. xlix, lines 3– 4, 19–21; and col. xlviii, lines 12–13; see Roth, Law Collections, 134 –36. 29 Here excluded from consideration is the Chronicler’s programmatic narrative of Jehoshaphat’s judicial reform, with its account of the creation of a system of judicial officials (2 Chr 19). That account cannot be used as a reliable historical source. It is a deliberate compilation based upon other texts that only provides reliable information about the Chronicler’s vision for a reconstruction in the Persian Age. Establishing the text’s non-historicity are: Alexander Rofé, “The Law about the Organization of Justice in Deuteronomy (16:18 –20; 17:8 –13),” Beth Mikra 65 (1976): 199–210 (Hebrew; English abstract); Robert R. Wilson, “Israel’s Judicial System in the Preexilic Period,” JQR 74 (1983): 229– 48 (at 246 – 48); Udo Rüterswörden, Von der politischen Gemeinschaft zur Gemeinde: Studien zu Dt 16,18 –18,22 (BBB 65; Frankfurt: Athenäum, 1987): 15–19; and, most extensively, Gary N. Knoppers, “Jehoshaphat’s Judiciary and ‘the Scroll of YHWH’s Torah,’ ” JBL 113 (1994): 59– 80. Rofé’s groundbreaking article was, unfortunately, overlooked by subsequent scholars. Its recent translation is to be applauded; see idem, “The Organization of the Judiciary in Deuteronomy,” in The World of the Aramaeans: Festschrift P. E. Dion (ed. P. M. Michèle Daviau, John W. Wevers, and Michael Weigl; 3 vols.; JSOTSup 324 –26; Sheffield: Sheffield Academic Press, 2001), 1:92–112. 30 All Bible translations are my own.

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What you are doing is not right. You will surely wear yourself out; and these people as well. For the task is too heavy for you; you cannot do it alone. Now listen to me: I will give you counsel. . . . [S]eek out from among all the people capable men who are god-fearing, trustworthy men who refuse bribes. Set these over them as officers of thousands, officers of hundreds, officers of fifties, and officers of tens. Let them sit as judges for the people at all times. Have them bring every major case to you, but let them decide every minor case themselves. Make it easier for yourself by letting them share the burden with you. . . . (Exod 18:17–22)

Taking Jethro’s advice to heart, Moses immediately implemented that protocol for delegating judicial authority so as to dispense justice more efficiently (Exod 18:24 –26). This foundation account associates the establishment of Israel’s judiciary with the redemptive events of the Exodus. That there should be any attempt at all to reflect on the origins of the system for administering justice represents a distinctively Israelite concern. Yet precisely in its distinctiveness, the account raises several complications. First, the narrative directly concedes that Israel’s judicial organization is foreign in conception and inspiration, since it derives from the counsel of Midianite Jethro rather than from Moses himself. Second, the narrative concedes that the system for administering justice precedes and is thus completely independent of the revelation of law at Sinai, which is the basis for God’s covenant with Israel. The narrative thus affirms that Israel’s judicial administration derives neither from Israel nor from revelation! The frank admission betrays the historical truth of ex Oriente lex: Israel was indeed indebted to the ancient Near East for the origins of its legal tradition. But it is highly problematic to imagine that such a concession could be aligned with the more fundamental Israelite claim for the origin of her laws in divine revelation at Mount Sinai, the account of which immediately follows in the narrative (Exod 19 –24). Conceding the foreign origins of the judicial administration would imply that the Sinaitic revelation—central to which is law—is nonetheless incomplete: reliant upon something prior, external, and extrinsic for its implementation. In effect, the inclusion of the origin myth of the judicial administration threatens to preempt the status of divine revelation as the culturally more important origin myth for Israel’s Torah. The distinctively Israelite conception is here reduced, both chronologically and ontologically, to ancillary status alongside the prior, foreign institution on which it must depend for its implementation. Prominently located at the heart of Israel’s foundation narrative concerning the exodus from Egypt and the revelation at Sinai, this chapter must have presented an interpretive challenge, if not a cause of consternation, to later readers within ancient Israel. One of the more important developments within biblical scholarship is the recognition that such inter-

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pretive issues may be reflected in the biblical text itself.31 Indeed, such issues may also have contributed to the composition of new texts in ancient Israel as later authors responded to and sought to correct difficulties that they perceived in earlier texts. To do so, however, they often stylized their compositions as an “ancient original” rather than as an explicit “later correction.” As these later texts themselves came to be accepted by the community, they were incorporated into the Bible along with the works with which they were originally in dialogue. As a result, subsequent generations inevitably began to read both the earlier work and the later response to it together, ahistorically, as if both had always been part of the same continuous story. Such issues help explain the fate of Exod 18. The Pentateuch itself provides the best evidence that the difficulties identified here concerning the dignity and autonomy of the legal system were already identified in ancient Israel itself. The two sources of consternation triggered by Moses’s reliance upon Jethro (Exod 18) are each systematically addressed and deftly corrected by the narrative of Deut 1. Although presented as a straightforward retelling and recollection by Moses of the events of the journey from Egypt as the Israelites are about to enter the promised land forty years later, the chapter in fact derives from a much later historical period and revises the earlier account in two significant ways.32 First, the retold account significantly alters the original sequence of events. If Exodus placed Jethro’s inauguration of the judiciary (chapter 18) prior to the revelation of law at Mount Sinai (chapters 19 –24), Deuteronomy removes the difficulty. The narrative of Deuteronomy begins with the divine command to depart from the mount where revelation had taken place.33 Only thereafter is there the move to organize the judiciary: 31

For this perspective of “inner-biblical exegesis,” see Michael Fishbane, Biblical Interpretation in Ancient Israel (2d ed.; Oxford: Clarendon, 1988); James L. Kugel and Rowan A. Greer, eds., Early Biblical Interpretation (Philadelphia: Westminster, 1986); and James L. Kugel, Traditions of the Bible: A Guide to the Bible as It Was at the Start of the Common Era (Cambridge, Mass.: Harvard University Press, 1998). For an annotated bibliography of this approach, see Bernard M. Levinson, L’Herméneutique de l’innovation: Canon et exégèse dans l’Israël biblique (Le livre et le rouleau 24; Brussels: Lessius, 2006), 69– 98. 32 See Bernard M. Levinson, The Hermeneutics of Innovation: The Impact of Centralization upon the Structure, Sequence, and Reformulation of Legal Material in Deuteronomy (Ph.D. diss., Brandeis University; repr. no. 9129763; Ann Arbor: University Microfilms, 1991), 424 –32; and Marc Z. Brettler, The Creation of History in Ancient Israel (London: Routledge, 1995), 65–70. 33 See the careful analysis provided by Norbert Lohfink, “Dtn 1,9–18: Gerichtsverfassung und Militär,” in idem, Studien zum Deuteronomium und zur deuteronomistischen Literatur V (SBAB 38; Stuttgart: Katholisches Bibelwerk, 2005), 253–72. He addresses narratological issues as well as the relationship of this unit to Exod 18.

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These are the words that Moses spoke to all Israel beyond the Jordan . . . . “Yahweh our God spoke to us at Horeb, saying, ‘You have stayed long enough at this mountain. Resume your journey . . . .’ “At that time, I said to you, ‘I am unable by myself to bear you. Yahweh your God has multiplied you, so that today you are as numerous as the stars of heaven. . . . How can I possibly, all by myself, bear the heavy burden of your legal disputes? Choose for each of your tribes individuals who are wise, discerning, and reputable . . . .’ ” (Deut 1:1–13)

In the retelling, the divine revelation of law at Horeb (Deuteronomy’s term for Sinai) now—more “logically” than in the Exodus version—precedes the creation of the judicial system. Deuteronomy’s authors have “rechronologized” the narrative sequence of Exodus in order to ensure the dignity and prestige of revelation itself. The remembered past is therefore here a reordered and a corrected past since the real point of departure for memory is the present rather than the past. The revised version of Deut 1 grants divine revelation of law its proper chronological priority over the judicial apparatus; by extension, the revised version also affirms the ontological priority of revelation to administration. Perhaps most strikingly, this text’s authors have solved the theological and hermeneutical problem they confronted without even marking their revision as an explicit departure from the original. It should already be evident that the authors of Deut 1 have also taken it upon themselves to correct the second major difficulty raised by Exod 18, whereby both the initiative and the inspiration for the system of judges had come from Jethro, the Midianite father-in-law of Moses. Deuteronomy rejects that foreign derivation, as a second look at the chapter confirms: At that time I said to you, “I am unable by myself to bear you. Yahweh your God has multiplied you, so that today you are as numerous as the stars of heaven. . . . But how can I bear the heavy burden of your disputes all by myself? Choose for each of your tribes individuals who are wise, discerning, and reputable to be your leaders.” You answered me, “The plan you have proposed is a good one.” So I took your tribal leaders, wise and experienced men, and appointed them heads over you: officers of thousands, officers of hundreds, officers of fifties, and officers of tens, and officials for your tribes. I further charged your magistrates as follows: “Hear out your fellow men: You must adjudicate justly between any man and a fellow Israelite or a stranger. You shall not be partial in judgment: hear out low and high alike. Fear no man, for judgment is God’s. And any case that is too difficult for you, you shall bring to me and I will hear it.” (Deut 1:9 –17)

Rather brazenly, Moses here avers that the initiative to delegate responsibility for justice was his alone; there is no mention of any external intervention whatsoever. As the italicized terms in the passage confirm, the composer of this narrative has redeployed the specific formula proposed by Midianite Jethro for the judicial administration, hierarchically organized

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like a chain of military command, but now attributes that same formula to Israelite Moses. There is no longer even the hint of a dialogue between Moses and any advisor, whether foreign father-in-law or Israelite confrere. Instead, Jethro has been completely “air-brushed” out of the retold, now sanitized, narrative, as if to remove even the possibility of the Israelite system of justice having any foreign derivation. Jethro lives on only as spectral, textual trace, assimilated into the character of Moses, who now gives Israelite voice to the Midianite original plan. Of course, one might counter that the two versions of the story are mutually independent, simply parallel accounts; that alternative would make the thesis proposed here, whereby the authors of Deut 1 revise Exod 18, indefensible. The scholarly consensus, however, is that this chapter of Deuteronomy represents a stage in Israelite history when later writers were systematically reshaping earlier traditions.34 Evidence that the chapter integrates material from other biblical sources as well only lends added weight to the argument that the authors of Deut 1 were conscious of and responded to earlier Israelite texts.35 The details of scholarship aside, it is extraordinarily telling that Deuteronomy’s retold version happens to depart from the Exodus version precisely at each of the two points—non-Israelite origin and pre-Sinaitic status—where that version could cause most chagrin for later readers. That fact alone constitutes prima facie evidence that Deuteronomy here responds to and strategically corrects the Exodus account. That variation does not seem simply free or arbitrary, as might properly be expected in the case of two independent traditions that bore no literary connection. The highly selective, point-for-point adjustment both of the chronology and the aetiology of the judicial administration can only be explained in terms of the authors of Deut 1 consciously seeking to revise and correct the narrative of Exod 18.36 34 See Thomas Römer, “The Book of Deuteronomy,” in The History of Israel’s Traditions: The Heritage of Martin Noth (ed. Steven L. McKenzie and M. Patrick Graham; JSOTSup 181; Sheffield: Sheffield Academic Press, 1994), 178 –212. 35 A more complete presentation of the texts upon which the authors of Deut 1 draw as literary sources would require reference not only to Exod 18 but also to Num 11. For example, the reason for Moses’s need for assistance—the onerous “burden” he must bear singlehandedly (Deut 1:12)—echoes the similar rationale and terminology of Num 11:11, 14, 17; see A. D. H. Mayes, Deuteronomy (New Century Bible Commentary; London: Marshall, Morgan & Scott, 1979), 122. 36 It is all but inconceivable that this argument could be reversed, making Exod 18 the later text that revises and corrects Deut 1. The move from a problem-free to a problematic text is most unlikely, especially since the two specific issues identified here go beyond merely mechanical matters of manuscript transmission (where random errors may be expected). Instead, they involve substantive matters of Israelite theology and national identity, where the pious desire to “correct the record” may readily be imagined. For that reason, the attempt by John Van Seters to argue that Deut 1 was composed prior to Exod

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An additional example confirms this model of revisionist authorship, since a subtle but telling change of language underscores Deuteronomy’s reworking of Exod 18. In the original account, Jethro defined the attributes required for appointment to judicial office thus: “capable men who are god-fearing, trustworthy men who refuse bribes” (Exod 18:21). These prerequisites—pragmatism, piety, and moral probity—were gained in and through life experience, were accessible to all, and did not presuppose formal training. As Moses specifies the qualifications for judicial office in the structurally similar list of Deuteronomy, he strikingly departs from Jethro’s pragmatic and democratic model. The new list places an unprecedented three-fold emphasis upon a different kind of acumen: “men who are wise, discerning, and knowledgeable” (Deut 1:13).37 The thrice-articulated, sole condition of office in the new context—“wisdom”—appears disconnected from any particular realm of practical life experience. It is rather a product of professional study and training, as the formal competence associated with entry into a guild or school. In Deuteronomy, the judicial system’s foundation narrative has clearly been restructured from a later vantage point, one that elevates the distinctly scribal virtue of “wisdom” into the essential qualification for judicial office. With that substitution, the scribal authors of Deuteronomy reveal both their revisionist hand in the composition of this narrative and their own professional training and commitments.38 While extensively revising the earlier narrative, this chapter presents itself as a straightforward restatement and recollection of the past. That indirect form of rewriting and rethinking history was almost certainly intentional, serving as a compositional strategy of the text’s authors in seeking acceptance for their work. The authors’ selection of textual speaker is part of this compositional strategy because it places their revision of tradition quite literally in the mouth of Moses, the very spokesman 18 cannot be defended; see idem, “Etiology in the Moses Tradition: The Case of Exodus 18,” HAR 9 (1985): 355– 61; and idem, The Life of Moses: The Yahwist as Historian in Exodus–Numbers (Louisville: Westminster John Knox, 1994). For a more detailed challenge, see Levinson, “Is the Covenant Code an Exilic Composition?” (repr., ch. 12 infra). 37 See Moshe Weinfeld, Deuteronomy and the Deuteronomic School (Oxford: Clarendon, 1972), 244– 45. The translation of the final term of Deut 1:13 as an active participle (“knowing”) requires a slight emendation of the received Hebrew (Masoretic) text, which instead has the passive participle (“experienced”). The change makes the word consistent, however, with the first two terms of the list, and requires the change only of the vowels (normally regarded as a later stage of the textual tradition), while leaving the consonantal text intact. Defending this change, see ibid., 244 n. 2. 38 The single best study of the scribal background of Deut remains Weinfeld’s Deuteronomy and the Deuteronomic School. His work opened a new perspective on the analysis of Deut as the work of literati familiar with a wide range of both Near Eastern and Israelite literature.

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of tradition. The attribution of a text to a prestigious speaker from the past, technically called “pseudepigraphy,” is a literary device well attested in antiquity. In this case, the critical analysis of tradition and the transformation of the status quo are effectively garbed in the voice of authoritative legal tradition.39 This insight also provides a clue that, elsewhere too, Deuteronomy’s retold past may be a corrected past, one structured in light of the authors’ priorities in the present.40 That revisionist voice reveals itself in narrative form in the case of Deut 1. It assumes legal form within the laws of Deuteronomy (chapters 12–26), in a section concerned with the judiciary and the broader public administration. The interpretive richness of these laws could easily escape the non-specialist reader. The issues that they raise emerge indirectly, as much from what they omit as from what they assert.

“The Laws Regulating Officials” as Seeking to Transform Society Deuteronomy is associated with a movement of major religious and social reform that took place in the southern kingdom of Judah at the time of Neo-Assyrian hegemony in the Near East. As a strategic response to the Neo-Assyrian incursions, Hezekiah all but abandoned the outlying countryside to the invaders. He contracted Judah into a rump state protected by fortress cities at the borders in defense of Jerusalem, the royal capital, at the center.41 In order to urbanize the population, he began to dismantle 39

For an illuminating study of this device, see Morton Smith, “Pseudepigraphy in the Israelite Literary Tradition,” in Pseudepigrapha I: Pseudopythagorica, Lettres de Platon, Littérature pseudépigraphique juive (ed. Kurt von Fritz; Entretiens sur l’antiquité classique 18; Vandoeuvres, Geneva: Fondation Hardt, 1972), 191–215 (with ensuing panel discussion). On its function in Deut (with further bibliography), see Bernard M. Levinson, Deuteronomy and the Hermeneutics of Legal Innovation (New York: Oxford University Press, 1997), 47– 48, 97. For its use in the Dead Sea Scrolls, see Moshe J. Bernstein, “Pseudepigraphy in the Qumran Scrolls: Categories and Functions,” Pseudepigraphic Perspectives: The Apocrypha and Pseudepigrapha in Light of the Dead Sea Scrolls (ed. Esther G. Chazon and Michael Stone; STDJ 31; Leiden: E. J. Brill, 1999), 1– 26. On the theological issues raised by false attribution, see the somewhat apologetic approach by David G. Meade, Pseudonymity and Canon: An Investigation into the Relationship of Authorship and Authority in Jewish and Earliest Christian Tradition (WUNT 39; Tübingen: J. C. B. Mohr-Siebeck, 1986; Grand Rapids: Eerdmans, 1987). 40 See Bernard M. Levinson, “The Hermeneutics of Tradition in Deuteronomy,” JBL 119 (2000): 269– 86. See ch. 11 infra. 41 For a stimulating analysis of the archaeological and literary evidence and of Deut’s connection to the immense social change wrought by Hezekiah and Josiah see Baruch Halpern, “Jerusalem and the Lineages in the Seventh Century BCE: Kinship and

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Judah’s extensive rural cultus and the familiar clan structure that supported it. Josiah’s so-called “reform” of 622 B.C.E. (2 Kgs 22–23) continued this process as he centralized the cultus and established the Jerusalem Temple as the exclusive site for legitimate worship of Yahweh. Cult sites other than those in Jerusalem were demolished, while the Temple itself was purged of any elements not viewed as Yahwistic. Even previously legitimate Yahwistic shrines in the countryside were declared illegitimate, despite their legacy of having legendary patriarchal and prophetic figures associated with them. The legal corpus of Deuteronomy, which is intimately connected with this comprehensive transformation of Judean society and religion, thus had two primary goals: (1) to stipulate that sacrifice is legitimate only at the central sanctuary (implicitly, the Jerusalem Temple); and, (2) conversely, to abolish the multiple local altars and sanctuaries throughout Judah as illegitimate.42 The impact of this reform program extended beyond such explicitly cultic matters, however, to include other areas of public life like justice and the political structure of the state. In fact, while the first section of the legal corpus (Deut 12:1–16:17) primarily addresses technical cultic matters (such as sacrifice, tithes, and the festival calendar, with additional material added by way of association), its second section (Deut 16:18–18:22) makes scant direct reference to the cultus. Instead, it lays out a plan for the complete restructuring of the major judicial, political, and religious institutions of ancient Judah. The new unit begins with the requirement to establish a system of judicial officials throughout the land.43 Judges and officials shall you appoint in each of your city-gates, which Yahweh your God is about to give you, according to your tribes. They must adjudicate for the nation, ruling justly. Do not pervert justice, do not show partiality, and do not take bribes, for bribes blind the eyes of the wise and pervert the plea of those who are in the right. Justice, only justice shall you pursue, so that you may live and retain possession of the land that Yahweh your God is about to give you. (Deut 16:18 –20)44

the Rise of Individual Moral Liability,” in Law and Ideology in Monarchic Israel (ed. Baruch Halpern and Deborah W. Hobson; JSOTSup 124; Sheffield: JSOT Press, 1991), 11–107 (at 27, 74 –75). 42 See Levinson, Deuteronomy and the Hermeneutics of Legal Innovation, 23–52. 43 Moshe Weinfeld offers a reconstruction of the historical background of the professional appointees in “Judge and Officer in Ancient Israel and in the Ancient Near East,” Israel Oriental Studies 7 (ed. Menahem J. Kister; Tel Aviv: Tel Aviv University, 1977), 65– 88. 44 This law served as one of the sources for the historically later account of origins of the judicial administration discussed above (Deut 1). There are clear literary ties between this legal unit and the earlier narrative concerning the Mosaic appointment of judges: the Mosaic charge in the second person, “You must adjudicate justly” (Deut

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Following this new introduction that sounds the motif of justice (B), several regulations follow that seem out of context. They are concerned with cultic issues such as the prohibited sacred pole (Asherah) and blemished firstlings (Deut 16:21–17:1). They would seem much more at home in the first section of the legal corpus (Deut 12:1–16:17), whose focus was the cultus (A). Indeed, the regulation here prohibiting blemished firstlings (Deut 17:1) repeats closely a similar regulation found in the previous section (Deut 15:21).45 The superficial “disruption” should be understood rather as intentional. The repetition provides a literary bridge between the two distinct thematic sections of the legal corpus, linking “cultus” and “justice” together in an interlocking A:B :: A:B pattern.46 Once that topical transition is made, the new unit then continues, providing a comprehensive blueprint for the institutional structure of the Judean polity: The local court system, with its procedural rules (Deut 17:2–7) The high court at the central Temple in Jerusalem (Deut 17:8 –13) The office of the monarch (Deut 17:14 –20) The priesthood (Deut 18:1– 8) The office of prophet (Deut 18:9 –22)

Biblical scholars have long labeled this unit, “Office-bearers of the theocracy,” or “Ämtergesetze” (Deut 16:18 –18:22).47 Both descriptions fail to do justice either to the unit’s complexities or to the aims and ambition of its authors. Analysis of its formal structure also militates against reducing it to an administrative flow-chart. The sequence of officials that it names— judge, king, priest, prophet—reflects neither an ascending nor a descending scale of political, religious, or social status.48 The logic of that 1:16), echoed here in the third person as, “They must adjudicate for the nation, ruling justly” (Deut 16:18). The following “mirror for magistrates,” which requires commitment to due process (impartiality, spurning bribes), similarly echoes the frame narrative (cf. Deut 16:19 and 1:17). For a fuller account, see Brettler, History, 65–70. 45 Jan Christian Gertz, Die Gerichtsorganisation Israels im deuteronomischen Gesetz (FRLANT 165; Göttingen: Vandenhoeck & Ruprecht, 1994), 58. 46 In other words, A (cultus; Deut 12:1–16:17) : B (justice; 16:18 –20) :: A (cultus; 16:21–17:1) : B (justice; 17:2–7 + 8 –13). Identifying this bridge, see Udo Rüterswörden, Von der politischen Gemeinschaft zur Gemeinde: Studien zu Dt 16,18 –18,22 (BBB 65; Frankfurt: Athenäum, 1987), 30; Georg Braulik, Die deuteronomischen Gesetze und der Dekalog: Studien zum Aufbau von Deuteronomium 12–26 (SBS 145; Stuttgart: Katholische Bibelwerk, 1991), 46 – 61; and Levinson, Deuteronomy and the Hermeneutics of Legal Innovation, 135–37. 47 See Samuel Rolles Driver, A Critical and Exegetical Commentary on Deuteronomy (ICC; 3rd ed.; Edinburgh: T. & T. Clark, 1902), 135, 199, 206. Almost identical is the description of A. D. H. Mayes (“Officials in the Theocratic State”); see his Deuteronomy, 261– 62. 48 If the concern were simply administrative, the paragraphs would be organized consistent with office-holder’s rank within the organizational hierarchy, whether “top-

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sequence instead reflects the priorities of the authors of the legal corpus itself as they systematically draw the consequences of cultic centralization for other spheres of public life, including judicial procedure and public administration. In doing so, the authors subordinate the entire institutional life of ancient Judah to the authority of Deuteronomic Torah.

The Two-Fold Transformation of Local Justice The program of drawing the consequences of cultic centralization for other spheres of public life begins with the structure of justice in the local sphere. Here Deuteronomy introduces two innovations, corresponding to the two distinct contexts for local justice that existed prior to centralization. The first was the system of the “elders,” who were deeply rooted in the clan network of the Judean countryside and thus operated independently of any centralized state authority.49 They held court at the “village gate,” which provided the conventional site for a public hearing.50 It was precisely that autonomy of the elders and the clan network—as the bearers of the traditional way of life and with a vested interest in its preservation— that centralization sought to dismantle in order to restructure Judean society.51 While an earlier stratum of laws in Deuteronomy reflects the older down” or “bottom-up.” Indeed, the principle of organizing legal paragraphs in a sequence that reflects social rank, from higher to lower, has long been recognized within Israelite and cuneiform legal collections. In the Israelite context, note the sequence of the goring ox laws in the Covenant Code: death of male or female adult (Exod 21:28 –30), death of male or female minor (Exod 21:31), death of male or female slave (Exod 21:32). For this ordering principle in cuneiform law, see Petschow, “Systematik,” 146 – 72; for its application in biblical law, see Stephen A. Kaufman, “The Structure of the Deuteronomic Law,” Maarav 1/2 (1978 –1979): 116 –17, 132–33, 135, 141. 49 On the elders, see Moshe Weinfeld, “Elders,” Encyclopaedia Judaica (Jerusalem: Encyclopaedia Judaica, 1972), 6:578– 80; Leslie J. Hoppe, The Origins of Deuteronomy (Ph.D. diss., Northwestern University; repr. no. 7903280; Ann Arbor: University Microfilms, 1978); idem, “Elders and Deuteronomy,” Église et Théologie 14 (1983): 259–72; Joachim Buchholz, Die Ältesten Israels im Deuteronomium (Göttinger Theologische Arbeiten 36; Göttingen: Vandenhoeck & Ruprecht, 1988); and Gertz, Die Gerichtsorganisation, 173–225. 50 See Deut 21:19; 22:15; 25:7; Ruth 4:11. Note Victor H. Matthews, “Entrance Ways and Threshing Floors: Legally Significant Sites in the Ancient Near East,” Fides et Historia 19 (1987): 25– 40; and Eckart Otto, “Šaar,” ThWAT, vol. 8 (ed. G. J. Botterweck and H. Ringgren; Stuttgart: Kohlhammer, 1995), 358– 403. 51 For the argument that the implementation of Hezekiah’s policy of urbanization required disruption of the clan networks, see Halpern, “Jerusalem and the Lineages,” 11– 107. That valuable analysis engages the archaeological evidence. The stress here, however, lies with the explanation of certain features of the legal corpus in light of that policy.

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system of elders in connection with some legal spheres, the developing text of Deuteronomy generally replaced the older system with a new and professionalized judiciary in order to bring local clan justice under centralized authority.52 Strikingly, the new judges are installed precisely in the seat of honor reserved by tradition for the elders. The latter are here summarily evicted from office, replaced—like Jethro in Deut 1—without even being mentioned: “Judges and judicial officers shall you appoint for yourself in each of your village gates” (Deut 16:18; emphasis added).53 This new and 52

It is important to indicate that this replacement may not have been absolute. The elders are depicted as active in another section of the legal corpus, which primarily addresses sex and family law. Scholars have divided on how to understand the elders’ retention there: either it amounts to the contraction of their area of responsibility to such cases alone, so that the new system exists alongside the old; or it reflects the compositional history of the legal corpus, with that section representing an older stratum of law that has not been brought into conformity with the core legislation that reflects centralization. Maintaining the coexistence of the two systems: Weinfeld, “Elders”; idem, Deuteronomy and the Deuteronomic School, 234; Jacob Milgrom, “The Ideological and Historical Importance of the Office of Judge in Deuteronomy,” in Isac [sic] Leo Seeligmann Volume: Essays on the Bible and the Ancient World (ed. Alexander Rofé and Yair Zakovitch; 3 vols.; Jerusalem: E. Rubinstein, 1983), 3:129–39 (138); and Carolyn Pressler, “A Response to Bernard Levinson’s Deuteronomy and the Hermeneutics of Legal Innovation,” ZABR 6 (2000): 314 –19. More compelling, in my view, is the analysis of the laws where the elders are active as an earlier and pre-Deuteronomic stratum of the legal corpus. See Rofé, “Organization of Justice in Deuteronomy,” 200 –201 (cited in n. 29 above); and Mayes, Deuteronomy, 284– 85, 304. For the challenge that this stratum is indeed Deuteronomic, see Otto, Šaar, 375–76; and idem, “Soziale Verantwortung und Reinheit des Landes: Zur Redaktion der kasuistischen Rechtssätze in Deuteronomium 19–25,” in Prophetie und geschichtliche Wirklichkeit im alten Israel: Festschrift für Siegfried Hermann (ed. Rüdiger Liwak and Siegfried Wagner; Stuttgart: W. Kohlhammer, 1991), 290 –306. Unfortunately, this entire question concerning the respective spheres of authority of the elders and the official judicial system is not addressed by Hanoch Reviv, The Elders in Ancient Israel: A Study of a Biblical Institution (Jerusalem: Magnes, 1989), 61–70. By discussing neither the installation of the judicial officials (Deut 16:18 –20) nor the law of the king (Deut 17:14 –20), he avoids challenges to his claim that Deut retains the institution of the elders essentially intact in its pre-settlement form. 53 Textual silence as a form of rewriting legal history is also evident in rabbinic literature, where a competing power claim may in effect be “written out of the record” by way of polemical delegitimation. The well-known first chapter of “The Sayings of the Fathers” (Pirqe Abot) provides a striking example. Abot presents itself as a straightforward account of tradition: “Moses received the Law () from Sinai and transmitted it to Joshua, and Joshua to the elders, and the elders to the Prophets; and the Prophets transmitted it to the men of the Great Synagogue” (1:1). This chain of tradition legitimates the rabbinical movement as heirs to a legal authority that goes directly back to revelation itself. That account of tradition, however, constitutes a striking departure from tradition. It is tendentious in its representation—or non-representation—of the various groups who conventionally have an association with the law. It conveniently omits the

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now professionalized judiciary assumed responsibility for all routine legal cases. A second context for local justice prior to centralization also required transformation. Certain legal cases required cultic resolution, either by means of a judicial ordeal officiated over by a priest54 or a judicial oath of innocence sworn at a sanctuary or temple and thus symbolically in the presence of the divinity.55 The recourse to the cultus was necessary in ambiguous or disputed legal cases where—in the absence of witnesses and evidence—there were insufficient grounds to issue a judicial finding based upon empirical criteria. In such cases, the litigants were remanded to the sanctuary to swear an oath before the deity who, by virtue of his access to suprarational knowledge, presided over the hearing and ruled as omniscient Judge.56 For that reason, regular access to the local sanctuary was essential to the everyday judicial life of the populace. This held true even in cases that ostensibly fell within the sphere of civil or criminal law, such as contested deposits or accusations of theft.57 The abolition of local altars threatened, priests and the Levites, for example. That omission is inconsistent with scripture. Concerning Levi, as ancestor of the Levites, none other than Moses himself affirms (as literary speaker of the Blessing of Moses): “They teach Jacob your ordinances, and Israel your Law ()” (Deut 33:10). Abot’s rewriting of legal history thus takes place by means of silence, as the rabbis seek to validate their claim to power at the expense of rival claims that are actually far more legitimate from the vantage point of tradition. This analysis of Abot 1:1 follows Moshe David Herr, “The Continuity of the Chain of Tradition of the Torah,” Zion 44 (1979): 43–56 (at 46 – 47) [Hebrew]. My translation of Abot slightly revises Herbert Danby, The Mishnah (London: Oxford University Press/Geoffrey Cumberledge, 1933), 446 – 61 (at 446). 54 Moshe Weinfeld, “Ordeal of Jealousy,” Encyclopaedia Judaica (Jerusalem: Encyclopaedia Judaica, 1972): 12:1449–50; Tikva Frymer-Kensky, The Judicial Ordeal in the Ancient Near East (Ph.D. diss., Yale University; repr. no. 8002726; 2 vols. in 1; Ann Arbor: University Microfilms, 1977), 474– 80; eadem, “The Strange Case of the Suspected Sotah (Numbers v 11–31),” VT 34 (1984): 11–26; and eadem, “Suprarational Legal Procedures in Elam and Nuzi,” in Studies on the Civilization and Culture of Nuzi and the Hurrians in Honor of Ernest R. Lacheman (ed. Martha A. Morrison and David I. Owen; Winona Lake, Ind.: Eisenbrauns, 1981), 115–31. The latter two articles were unfortunately not included in eadem, Studies in Bible and Feminist Criticism (JPS Scholar of Distinction Series; Philadelphia: Jewish Publication Society, 2006). 55 See Exod 22:7, 8, 10 (ET 22:8, 9, 11). On the forensic function of oaths, see Karel van der Toorn, Sin and Sanction in Israel and Mesopotamia: A Comparative Study (Studia Semitica Neerlandica 22; Assen/Maastricht: Van Gorcum, 1985), 45–55. 56 See Levinson, Deuteronomy and the Hermeneutics of Legal Innovation, 110 –27. 57 In such cases, the convention of the judicial oath is attested in both biblical and cuneiform law. The technical formula in biblical law is  , “an oath by Yahweh” (Exod 22:10 [ET 22:11]). That represents the exact interdialectical equivalent of the Akkadian, nš ilim, “[oath by] the life of the god.” Similarly, the biblical formula that stipulates the cultic location of the judicial oath is:    , “before God” (Exod

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therefore, to deny the community access to an essential context for resolving a wide range of judicial disputes, unless alternative means of resolution were provided.58 Consequently, just as the legal corpus earlier redirected all sacrificial activity from the local sphere to the central sphere (Deut 12), so does it here stipulate that all disputed or ambiguous cases must similarly be remanded to the Temple as the only site that provided legitimate access to divine resolution (17:8–10). The two legal paragraphs (Deut 17:2–7 and 17:8 –13) introducing this double transformation of local justice interlock.59 By stipulating that a preponderance of witnesses (17:6) is the necessary condition for conviction in the local sphere (17:2), the first paragraph in effect restricts the jurisdiction of the local courts to cases that can be empirically resolved. Within the limits of that operational restriction, however, local judicial authority is maximized, since the local judiciary is empowered to try capital cases and even to adjudicate serious religious transgressions like apostasy, on condition that witnesses are available. The second paragraph, concerned with judicial procedure at the Temple, is equally dialectical in its legal logic, since it is concerned neither with ritual trespass nor with questions of cultic purity or impurity. Indeed, such cases are not even mentioned here (contrast Hag 2:10 –13). Instead, the paragraph demarcates the jurisdiction of the court at the Jerusalem Temple paradoxically, by employing secular cases of criminal or civil law. If any such case “extends beyond your ken” (17:8)—that is, should neither witnesses nor evidence be available—then the ambiguous case must be remanded to the central Temple, since it requires divine adjudication.

The Transformation of the Central Sanctuary In the process of establishing the central sanctuary as the high court, Deuteronomy also radically revises the traditional form of cultic justice. The changes involve the locus of cultic justice, access to which now requires pilgrimage to the central Temple (17:9–10). The changes also affect, more subtly, the form of justice:

21:6; 22:7 [ET 22:8]). That formula corresponds precisely to the Akkadian: ina maar ilim. For examples of judicial oaths in the context of cuneiform law, see Roth, “Laws of Hammurabi,” §§9, 23, 107, 120, 126, 266 (pp. 82– 83, 85, 101, 104, 105, 130; see n. 18 above). 58 Centralization thus created a “judicial vacuum in the provincial cities” (Weinfeld, Deuteronomy and the Deuteronomic School, 234 –35). 59 See Levinson, Deuteronomy and the Hermeneutics of Legal Innovation, 127–33.

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(8) If a legal case exceeds your ken—whether distinguishing between one category of homicide or another, one category of bodily injury or another, one category of civil law and another, any kind of legal dispute within your citygates—then you shall proceed up to the place that Yahweh your God shall choose, (9) and come and inquire before the levitical priests and the judge who is in office at that time. When they proclaim to you the verdict of the case, (10) you must implement the verdict that they proclaim to you from that place which Yahweh shall choose. Be sure to do all that they instruct you. (11) You must fully implement the instruction that they teach you and the verdict that they proclaim to you. You may deviate neither right nor left from the verdict that they announce to you. (12) Should a man act presumptuously so as to disobey the priest appointed there to serve Yahweh your God, or the judge, that man shall die. Thus shall you purge evil from Israel! (13) And all the people will take heed and be afraid and not act presumptuously again. (Deut 17:8 –13)

The procedures for obtaining a verdict at the central sanctuary detailed here make no reference to the conventional priestly manipulation of the lots in order to issue a judicial ruling. Nor is there reference to the judicial use of the Urim and Thummim, the oracular lots carried by the High Priest and stored within the “breastplate of justice,” which hung from his vestment (Exod 28:30; Lev 8:8). Elsewhere their use serves as the hallmark of the priestly tribe of Levi, charged with responsibility for judicial oracles (Deut 33:8, 10).60 Nor is there any hint of a judicial ordeal officiated over by a priest or of a judicial oath before the divinity. Instead of employing specific language appropriate to the setting of an oracular ruling at the Temple, as the context demands, the unit substitutes Deuteronomic cliché.61 No longer is a traditional priestly “ruling” (tôrâ) at issue, one concerned with specific, ad hoc questions of cultic purity or impurity.62 The reference to the oracular responsum—    , “according to the instruction [i.e., the tôrâ] that they shall teach you” (Deut 17:11)—seems vestigial rather than actually cultic, so strongly is it colored by the language and thought of Deuteronomy. The oracle from the Temple bespeaks the distinctive priorities of the authors of the legal corpus, and 60 For a useful overview, see P. J. Budd, “Priestly Instruction in Pre-Exilic Israel,” VT 23 (1973): 1–14. For the first study of the priestly proclamation as a Gattung (literary genre) see J. Begrich, “Die priesterliche Torah,” in Werden und Wesen des Alten Testaments (BZAW 66; Berlin: Walter de Gruyter, 1936), 63– 88; reprinted in his Gesammelte Studien zum Alten Testament (TB 21; Munich: Chr. Kaiser, 1964), 232– 60. 61 The formula “that Yahweh will choose” (Deut 17:10) conforms, for example, to similar formulae elsewhere, both in the frame (5:1, 29; 6:3, 25; 7:11) and throughout the legal corpus (12:5, 11, 14, 18, 21, 26, etc.). Similarly, the admonition, “You must not turn aside, either to the right or to the left, from the word . . .” (17:11) recurs at 5:32; 17:20. The rationale for capital punishment of those who refuse to submit to the authority of the central sanctuary—“Thus shall you purge the evil from Israel. And all the people shall hear and be afraid” (17:12b–13a)—also recurs elsewhere (13:11; 19:20; 21:21). 62 As in Lev 13:59; 14:2, 32, 54, 57; 15:32; or Hag 2:11.

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repeatedly emerges as scribal “word” (, i.e., dbr; Deut 17:10, 11). Zion’s sanctuary has here been completely transformed by Sinaitic law.

The Transformation of the Monarchy The reconfiguration of the judicial system under centralization has implications for the executive branch. By assigning supreme judicial authority to the Temple, Deuteronomy’s authors deny the monarch his most prestigious, and thus most jealously guarded, bailiwick. After all, ensuring justice was one of the defining attributes of kingship throughout the ancient Near East.63 It was the responsibility of the king to prevent the oppression of those who lacked power—the widow and the orphan—by guaranteeing them access to the protections of the law. Fulfilling that royal duty was a benchmark of office, as attested across a wide range of Near Eastern literature, linguistically, geographically, and chronologically.64 At Ugarit, this motif is represented by Danel in the Aqhat epic and by prince Yaib’s reproof of Kirta, his father, for failing to behave like a king by neglecting the royal duty to hear the cases of widows and orphans.65 That Kirta was mortally ill at the time was not countenanced as a valid excuse. That the monarch had prime responsibility for justice was also taken for granted in ancient Babylon, as is evident in Hammurabi’s elegant claim that Marduk commissioned him, dannum enšam ana la ablim, kma Šamaš ana almt qaqqadim wa êmma mtim nuwwurim, “so that the strong might not oppress the weak, to shine forth as the sun to the blackhaired ones, and light up the land.”66 The monarch was viewed as having particular legal acumen. Thus Hammurabi is endowed by Šamaš, the sun god, with special ability to perceive the principles of justice and righteous63 See Bernard M. Levinson, “The Reconceptualization of Kingship in Deuteronomy and the Deuteronomistic History’s Transformation of Torah,” VT 51 (2001): 511–34 (at 514 –19). 64 S. E. Loewenstamm, “Law,” in The World History of the Jewish People: Ancient Times, vol. 3, Judges (ed. Benjamin Mazar; New Brunswick: Rutgers University Press, 1971), 232. 65 M. Dietrich, O. Loretz, and J. Sanmartín, eds., The Cuneiform Alphabetic Texts from Ugarit, Ras Ibn Hani and Other Places (Münster: Ugarit-Verlag, 1995), texts 1.17.V.4– 8 and 1.19.I.19–25 (Aqhat); 1.16.VI.43–50 (Kirta); subsequent references to this edition are abbreviated CAT. For text and this translation, see Simon B. Parker, ed., Ugaritic Narrative Poetry (SBLWAW 9; Atlanta: Scholars Press, 1997), 58, 68. For a discussion of the topos, see John Day, “The Canaanite Inheritance of the Israelite Monarchy,” in King and Messiah in Israel and the Ancient Near East: Proceedings of the Oxford Old Testament Seminar (ed. John Day; JSOTSup 270; Sheffield: Sheffield Academic Press, 1998), 75– 90, esp. 86 – 87. 66 Laws of Hammurabi, i.27– 49; Roth, Law Collections, 76 (my translation).

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ness (kittum u mšarum) that inform his laws.67 This royal topos of divinely-inspired judicial insight was carried over into Israelite literature and applied to the Israelite monarch. On behalf of the Davidic monarch, the psalmist thus petitions: “O God, grant the king your judgments; the king’s son, your righteousness!” (Ps 72:1). David and Solomon directly and by delegation heard complex legal cases and entertained judicial appeals. Royal prerogative even entitled the monarch to pardon a capital offense that would otherwise legally require execution by the blood avenger (2 Sam 14:1–24). As supreme judge, the monarch could operate freely as regards type of case, area of responsibility, or stage of proceeding. In other words, as judge, the king was not restricted to being either a final court of appeal, as in the case of the woman from Tekoa (2 Sam 14:1–24), or a protector of the poor, as in the case of the ewe lamb (2 Sam 12:1–14). Most important, the king would frequently preside over ambiguous legal cases involving only claim and counter-claim, with neither party able to summon witnesses or provide evidence in support of their account. One such case still survives as a legendary example of judicial brilliance: Solomon’s adjudication of the two prostitutes who contested maternity over their one surviving baby (1 Kgs 3:16–28). That exercise of royal wisdom was therefore deliberately included in the collection of legends whose function was to legitimate and glorify Solomon as rightful heir to the Davidic throne as he consolidated his rule over the United Monarchy.68 It can hardly be an accident, therefore, when Deuteronomy pointedly requires that precisely such cases (lacking both witnesses and evidence) must be remanded to the Temple (Deut 17:8 –13). With the Temple complex located adjacent to the royal palace, the slap in the face to the monarch could not be more stinging, as Deuteronomy takes justice completely out of the king’s hands. The legal corpus is remarkably consistent on this point. Throughout the previous laws regulating the administration of justice in the local and central spheres (Deut 16:18 –20; 17:2–7; 17:8 – 13), there is a stunning silence about the judicial function of the king. That same silence is now maintained in the law establishing the monarchy. Just as the earlier laws, although concerned with the judicial administration, pointedly ignore the king’s traditional role, so Deuteronomy’s “Law of the 67

See Greenberg, “Biblical Criminal Law,” 27–28 (see n. 21 above). Showing how Solomon is redactionally aggrandized in conventional Near Eastern terms as possessing superior skills of royal administration as well as encyclopaedic wisdom (1 Kgs 4:1–19; 5:7– 8, 9–14) is Gary N. Knoppers, Two Nations under God: The Deuteronomistic History of Solomon and the Dual Monarchies (2 vols.; HSM 52–53; Atlanta: Scholars Press, 1993–1994), 1:83– 87. For a careful analysis of the transformation of the concept of wisdom within the passage, from pragmatic shrewdness to judicial insight, see Weinfeld, Deuteronomy and the Deuteronomic School, 254 –57. 68

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King” just as pointedly omits his responsibility for justice. So consistent is the suppression of the monarch’s judicial role that it points to the authors’ rejection of that norm: (14) When you enter the land which Yahweh your God is about to give you and have taken possession of it and have settled in it and you say, “I will appoint a king over me like all the nations that are round about me,” (15) you may indeed appoint a king over you whom Yahweh your God will choose. From among your brothers shall you appoint someone as king over you; a foreigner who is not one of your brothers may you not place over you. (16) However, he must not acquire many horses for himself nor may he cause the people to return to Egypt in order to acquire more horses, since Yahweh has said to you, “You must never again return that way!” (17) Nor may he acquire many wives for himself, for his heart would turn away; nor may he enrich himself with silver and gold. (18) When he comes to sit on the throne of his kingdom, he shall have a copy of this Torah written for him upon a scroll in the presence of the Levitical priests. (19) It shall remain with him and he shall read in it all the days of his life, so that he may learn to fear Yahweh his God by diligently performing all the words of this Torah and all the statutes, (20) so as not to exalt his heart over his brothers nor to deviate left or right from the commandment, so that he, together with his descendants, may long reign over his kingdom in Israel. (Deut 17:14 –20)

After the introductory insistence that the king not be a foreigner (vv. 14 – 15), five prohibitions specify what the king should not do (vv. 16 –17). The conception of the king in this unit serves far more to hamstring him than to permit the exercise of any meaningful authority whatsoever. In addition to his normal judicial role, other duties conventionally regarded as essential to the exercise of royal power are similarly either passed over in complete silence or severely truncated.69 In the end, there remains for the king but a single positive duty: to “read each day of his life”—while sitting demurely on his throne—from the very Torah scroll that daily circumscribes his powers (vv. 18 –20). Deuteronomy has reduced the king to mere titular head of state, more restricted than potent, more otiose than exercising real military, judicial, executive, and cultic function. The sole potent authority is the Deuteronomic Torah, the very lawbook in whose original reception,

69 Critical components of royal prestige that are obscured or contracted in this law include the monarch’s playing a significant role in the state cultus, serving as defender of the Temple, initiating and conducting military campaigns, and the unrestricted right to a harem as a sign of both wealth and potency. On these issues, see Gary N. Knoppers, Two Nations under God, 2:223–25; and, particularly, idem, “The Deuteronomist and the Deuteronomic Law of the King: A Reexamination of a Relationship,” ZAW 108 (1996): 329–346; idem, “Rethinking the Relationship between Deuteronomy and the Deuteronomistic History,” CBQ 63 (2001): 393– 415; and Levinson, “Reconceptualization of Kingship,” 511–34.

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formulation, transcription, and implementation Deuteronomy’s king plays absolutely no role.70 In being thus constituted by the Torah, the monarchy becomes regulated by and answerable to the law.71 If the notion of the accountability of the office holder to the law applied simply to a disreputable judicial official (as in Laws of Hammurabi §5), it would not warrant comment. In terms of legal and intellectual history, however, its extension to the monarchy is astonishing. In the classical Mesopotamian legal collections discussed earlier, it was the monarch who promulgated law.72 Deuteronomy reverses that precedent: here it is law that promulgates the monarch. The revisionist nature of this text also helps provide the rationale for the sequence of laws in this unit. The law concerned with justice at the Temple (Deut 17:8–13) now both literally and figuratively preempts the law of the King.

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Norbert Lohfink argues that “Torah” refers to Deut 12–28 for the Deuteronomistic author of this passage (“Die Sicherung der Wirksamkeit des Gotteswortes durch das Prinzip der Schriftlichkeit der Tora und durch das Prinzip der Gewaltenteilung nach den Ämtergesetzen des Buches Deuteronomium [Dt 16,18 –18,22],” in Testimonium Veritati: Festschrift Wilhelm Kempf [ed. H. Wolter; Frankfurter Theologische Studien 7; Frankfurt: Knecht, 1971], 143–55; reprinted and cited according to idem, Studien zum Deuteronomium und zur deuteronomistischen Literatur I [SBAB 8; Stuttgart: Katholisches Bibelwerk, 1990], 305–23 [at 318]). The article has been translated as “Distribution of the Functions of Power: The Laws Concerning Public Offices in Deuteronomy 16:18 –18:22,” in A Song of Power and the Power of Song: Essays on the Book of Deuteronomy (ed. Duane L. Christensen; Winona Lake, Ind.: Eisenbrauns, 1993), 336 – 52. Note also Georg Braulik, “Die Ausdrücke für ‘Gesetz’ im Buch Deuteronomium,” Bib 51 (1970): 39– 66; reprinted and cited after idem, Studien zur Theologie des Deuteronomiums (SBAB 2; Stuttgart: Katholisches Bibelwerk, 1988), 11–38 (at 36 – 38). 71 Postbiblical Jewish tradition fails to maintain this utopian constitutional vision. Rabbinic authors were confronted by biblical sources that were inconsistent about the status of the monarch. More important, they also had to deal with the gap between utopian vision and pragmatic political reality. On that basis, Jewish law in the Mishnah abandons the constraints imposed by Deut and no longer subordinates the monarch to law: “The king neither judges, nor is he subject to judgment; he neither testifies nor is testimony heard against him. . . .” (Mishnah Sanhedrin 2:3). Noting “the failure to incorporate kingship within a constitutional structure” in this case, and suggesting reasons for it, see Michael Walzer, “The Constitution of Monarchy,” in Walzer, Lorberbaum, and Zohar, eds., Authority (see n. 17 above), 139. 72 See Greenberg, “Biblical Criminal Law,” 17–28; and Lohfink, “Wirksamkeit des Gotteswortes,” 308.

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Priesthood and Prophecy The final two laws in this unit fill out Deuteronomy’s reconceptualization of public offices by turning to the institutions of priesthood and prophecy (Deut 18:1–8, 9–22). It was imperative to reconfigure the traditional priesthood. As a consequence of cultic centralization, the rural priests who had officiated at the local altars suddenly became disenfranchised, since they lost their source of prebend. This law seeks to redress that loss of economic support by guaranteeing the displaced priests a new right to officiate on equal status with the priesthood already ensconced at the central sanctuary. The corrective nature of the unit on priesthood is also clear in its literary structure. It opens with two concise, apodictically formulated laws that enshrine the priestly right to sacrificial emolument (18:1–5). Only then does there follow the adjustment that, as a result of centralization, stipulates that the countryside priests should have access to income at the central Temple (18:6–8). This provision for redress appears as a formally distinct coda.73 In contrast to the apodictic form of the preceding legislation, it is formulated as a conditional case addressing a specific contingency. This legislation granting the displaced Levites equal access alongside the Temple’s entrenched priesthood was almost certainly more utopian than pragmatic. The narrative of Josiah’s reform suggests that the priests at the central sanctuary were far less willing than was hoped by this legislation’s authors to share the lucrative status quo by welcoming their brothers from the countryside as equals (2 Kgs 23:9). The unit on prophecy (Deut 18:9 –22) is most striking for its inclusion here in the first place. The prophet’s inclusion in this section on public officials amounts to an act of assimilation that routinizes the office of prophet as now simply one among all the other institutions of the state. This institutionalization of prophecy strikingly departs from convention, since Israelite tradition normally placed the Yahwistic prophet in sharp opposition to the state. In particular, prophets appointed to state office represented the Yahwistic prophet’s greatest adversaries. Such “civil servant” prophets were systematically delegitimated, castigated as the prophets of foreign deities, as in Elijah’s famous contest with the prophets of Baal on the slopes of Mount Carmel (1 Kgs 18), where his adversaries were, more likely, simply prophets in the employ of Israel’s King Ahab. Elsewhere, too, prophets who aligned themselves with the state, as part of its bureaucracy, were accused of uttering oracles inspired by “a lying 73 As in the clausula finalis of the Roman law known as the lex Aquila, there is also in biblical law the phenomenon of “new provisions being joined to an existing code as an appendix instead of being worked in properly”; see David Daube, Studies in Biblical Law (Cambridge: Cambridge University Press, 1947), 77.

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spirit” (1 Kgs 22:23). The conventional dichotomy between prophet and state is thus here brought to an end. An equally striking transformation of classical Israelite prophecy is latent in the seemingly innocuous affirmation that all future prophets shall be “like” Moses (Deut 18:18). The elevation of the speaker of the legal corpus to paradigm for all subsequent prophecy in effect subordinates prophecy to law, while transforming the prophet into a legist.74 This redefinition of prophecy occludes any conventional notion of mantic or charismatic prophecy. With the stipulation that all prophets shall henceforth proclaim Deuteronomic legal Torah, conformity becomes the criterion of authenticity. As a consequence, deviation inevitably becomes stigmatized as apostasy and therefore prohibited as a capital offense (Deut 18:19 –20). This restriction of the prophetic voice is consistent with the sharp contraction of royal authority in the previous law.75 Classical Israelite prophecy is here co-opted by the specific religious, political, and social program of the legal corpus of Deuteronomy.

The Unit as a Draft Constitution Deuteronomy’s laws of public offices emerge as the blueprint for a transformed society, one in which the key judicial, administrative, and cultic branches of government each have their separate spheres of authority defined and allocated by a single, sovereign authoritative text, to which each is equally responsible (Deut 16:18 –18:22).76 The key idea of this charter is that no one branch of public office is superior to the other; rather, each is equally subordinate to Deuteronomy’s Torah. It is the legal corpus of Deuteronomy that assigns each branch its function and specific sphere of influence; brings each branch of the administration into relation to one another as part of a broadly conceived whole; grants each judicial, executive, cultic, and prophetic institution its legitimacy; and assigns each

74 See Joseph Blenkinsopp, Prophecy and Canon: A Contribution to the Study of Jewish Origins (Notre Dame: University of Notre Dame Press, 1977). 75 Note the interesting suggestion by Christa Schäfer-Lichtenberger that the contraction of royal authority corresponds to a reciprocal realignment of prophetic authority in Deut 18:9–22; see her Josua und Salomo: Eine Studie zu Autorität und Legitimität des Nachfolgers im Alten Testament (VTSup 58; Leiden: E. J. Brill, 1995), 103– 6. Her approach extends the observations of Lohfink, “Wirksamkeit des Gotteswortes,” 306, 313–14. 76 Lohfink, “Wirksamkeit des Gotteswortes,” 305–23.

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institution a standard of performance and therefore a criterion of evaluation.77 Constituted by the law, they must also answer to it. This legislative vision presents a sophisticated reflection on the nature and structure of political authority. The textual speaker mounts a critique of power that rejects any conventional notion of institutional authority as self-evident, no matter whether based upon royal dynastic claim, traditional social status, priestly bloodline, or even upon divine inspiration and prophetic vision. This legislation permits no institution to have a basis of power external to or independent of Deuteronomy’s Torah. Without exception, the major public institutions are reconceptualized as accountable to the law. Competing “myths” of power are comprehensively worked into and subsumed by a single, comprehensive, new foundation account that asserts the common origin, simultaneous creation, equal status, and conjoint accountability of all political institutions. No single institution, therefore, can claim to be “prior” to another in its antiquity, status, privilege, or closeness to divinity. The new vision rejects all conventions of rank and hierarchy. The monarch stands neither in initial nor final position in the sequence of offices, neither first nor last in rank, since the order is not governed by rank. The unit therefore does not represent an ancient administrative “flow chart” that statically describes the organization of the public sphere. Rather, the unit critically engages the conventions of status, kinship, and political power that prevailed in its time. Conventional norms of social status, like the clan elders’ judicial role in the village gate, are rejected, replaced by professional competence and conformity to Torah. Although the text employs religious language and situates itself as part of a larger presentation of the history and law of ancient Israel, it thus actually articulates a complex vision of political philosophy and of judicial authority. By conceiving of each individual institution as equally accountable to Torah (rather than as self-justifying), Deuteronomy creates a legislative structure that ensures the full autonomy and proper independence of each institution. This vision obviously provides an at-leastpreliminary answer to the question raised at the outset of this study about the historical precedents for an independent judiciary. Only when the judiciary stands on equal ground with the monarchy—as it does in Deuteronomy—is it possible to protect the judiciary from the monarchy, or, to shift into more modern language, to ensure the autonomy of the judicial branch in relation to the executive branch. Continuing the translation into 77 The text’s speaker, the “Moses” of Deut, is represented as creating the entire public administration of the state: outlining terms, conditions, and areas of responsibility; providing operational guidelines (including conditions of appointment, such as professional training, probity, citizenship, or lineage); defining areas of restricted or prohibited activity; and selectively including sanctions for abuse of office.

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the modern context, the same vision would prevent Church or Temple from being reduced to simple organ of the state; yet it would, just as effectively, preclude domination by either Church or Temple of the judicial system, of the executive branch, or of the public sphere more broadly. It remains unclear whether the political, social, and religious transformations called for by Deuteronomy’s authors were ever actually implemented. In its final form, the unit may well date to the exilic period, when the unit’s editors were held in Babylonian exile without any direct access either to political power or to their land.78 From all these perspectives, the orientation of the unit thus seems far closer to utopian political science, a revisioning of the possibilities of political, religious and social life, than to any immediate description of an existing status quo. Scholars who describe the unit simply as “Laws of Public Officials” fail to recognize that transformative vision. As it seeks to provide a blueprint for the transformation of society and to create a new polity, the unit is more accurately described as a draft constitution.79 It promotes the idea of a public text as regulating the institutional structure of government and permits no

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Julius Wellhausen recognized this issue long ago, although in reference to specific material that he regarded as later insertions into the legal corpus. He refers to “dieser unpraktische Idealismus” [“this impractical idealism”] and insists “die Anschauung eines wirklichen jüdischen Reiches scheint hier schon gänzlich zu fehlen” [“the concept of an actual Jewish state already appears to be completely absent here”]. See idem, Die Composition des Hexateuchs und der historischen Bücher des Alten Testaments (3d ed.; Berlin: Georg Reimer, 1899; repr. as 4th ed.; Berlin: Walter de Gruyter, 1963), 192 (my translation); first published as “Die Composition des Hexateuchs,” Jahrbücher für deutsche Theologie 21 (1876): 392– 450, 531– 602; and 22 (1877): 407– 479. Lothar Perlitt marshals Wellhausen’s analysis in an acerbic challenge to Lohfink’s model. See idem, “Der Staatsgedanke im Deuteronomium,” in Language, Theology, and The Bible: Essays in Honour of James Barr (ed. Samuel E. Balentine and John Barton; Oxford: Clarendon, 1994), 182– 98 (at 190). 79 The conceptual breakthrough was made by Norbert Lohfink in 1971 (see n. 70 above). Lohfink’s groundbreaking article, written in the context of the intellectual ferment associated with Vatican II, promised a follow-up that would support the article’s primarily synchronic analysis of the final redaction of the text with a diachronic analysis of its literary history. That next step is eagerly awaited, and even more so since recent scholarship has turned away from Lohfink’s insight and dissolved the premise of a redactionally coherent unit. No longer regarding Deut 16:18 –18:22 as a draft constitution (outlining “Laws of Public Officials”), such approaches see the unit as expressing only the late theological concerns of the Deuteronomistic Historian. For an assessment, see Udo Rüterswörden, “Der Verfassungsentwurf des Deuteronomiums in der neueren Diskussion: Ein Überblick,” in Altes Testament Forschung und Wirkung: Festschrift für Henning Graf Reventlow (ed. Peter Mommer and Winfried Thiel; Frankfurt: Peter Lang, 1994), 313–28.

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single institution to emerge as superior either to the other branches of government or to the charter to which all are accountable.80 The unit reflects no conceivable historical reality, no actual state apparatus. The judicial organization and legislative structure that Deuteronomy seeks to put into place were visionary and without precedent. At each point, this section of Deuteronomy thus significantly departs from the institutional and social status quo of its time. Deuteronomy’s subordination of the monarch to a sovereign legal text that regulates his powers and to which he is accountable has no counterpart known to me in the ancient Near East. It is equally distinct from the classical Greek ideology of kingship.81 To be sure, Greek political theory of the fifth century B.C.E. devoted considerable attention to exploring the lawful authority and relative merits of different forms of government. Moreover, there was a clear recognition among the Greek intelligentsia that respect for law commanded a higher loyalty than that owed by a citizen to any particular monarch or government (especially in cases of tyranny).82 Nonetheless, even that strong 80

The degree of correspondence of postbiblical, Jewish law to early modern constitutional thought is briefly addressed in the first chapter of Cohen, The Three Crowns (see n. 17 above). His analysis stresses the separation of spheres of authority as the hallmark of a model constitution. My stress, in contrast, is that two principles must both be present: (1) separation of powers; and (2) a prescriptive, public text as the source of institutional legitimacy and accountability. 81 The Greek vision of kingship, as Iron Age authors envisioned the Bronze Age, corresponds in part to the royal ideology of the ancient Near East. In both the Greek and Near Eastern conceptions, the hereditary king is overlord of a set of vassals, plays a role in the cult by leading sacrifice and sponsoring the construction of temples and shrines, is leader in war, and arbitrates legal disputes. The king possesses some form of strong connection to the divine, either being himself worshipped as a god or considered to be the literal or metaphorical son of a god or goddess. The gods look favorably on the king and often bestow their authority upon his rule, symbolically in the form of a scepter. The gods also grant the king the ability to judge wisely and fairly. Finally, the well-being of the crops was thought to be dependent upon the king, with a good growing season attributed to royal justice and piety. For these correspondences, see West, East Face of Helicon, 14 –19, 132–37. 82 In classical Greece, the principle that law commands a greater loyalty than that owed a monarch is clear in several different contexts. Writing ca. 440 B.C.E., Herodotus provides an account of the symbolic encounter on the Hellespont between the Persian King, Xerxes, and the exiled king of Sparta, Demaratus. See Herodotus, The Persian Wars, III, Books 5–7 (trans. Alfred Denis Godley; LCL 119; Cambridge: Harvard University Press; London: William Heinemann, 1922), Book VII, §§101– 4 (pp. 403– 9). Having just reviewed his massive invasion force of, allegedly, five hundred thousand men, well-organized in army and navy units, Xerxes summons Demaratus to ask whether the Greeks would defend their homeland against such overwhelming odds. The Spartan effectively counters that the decisive factor in the battle would not be mere numbers: for the greatly outnumbered Greek forces, he asserts, freedom under the law commands a higher loyalty than what even Persia’s great king could expect from servile subjects

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affirmation of respect for law over obligation to government differs from Deuteronomy’s radical argument that even the supreme political authority is himself accountable to the law, on an equal basis with other citizens. On that basis, Deuteronomy’s blueprint for a “Torah monarchy” arguably helps lay the conceptual foundations for the later Western idea of a constitutional monarchy. An important chapter in the history of Western constitutional thought thus begins with the legal corpus of Deuteronomy.83

Conclusions The functionalist model of social science associated with Radcliffe-Brown regards law as a means for “the maintenance . . . of social order.” In Deuteronomy, however, law challenges the status quo and seeks to create a new reality. Deuteronomy’s draft constitution, which systematically reconceptualizes the institutional structure of the Judean polity (judicial procedure, the monarchy, the Levitical priesthood, and even prophecy), goes far beyond what was strictly necessary as a consequence of cultic centralization. Deuteronomy grants each institution its independent sphere of authority, while holding each—even the monarchy—equally accountable to Torah. This utopian charter rejects the standard royal ideology that prevailed not only in the ancient Near East but also in ancient Israel itself. The genre of law here provides a vehicle for political thought that seeks to transform the structures of public life. The conception of law in Deuteronomy thus cannot be explained by Radcliffe-Brown’s approach. A more adequate model may be found in the work of Max Weber. Writing in the midst of World War I and challenging

(Book VII, §104 [pp. 408– 9]). A similar conviction that law supercedes government animates the plot of Antigone, by Sophocles. Antigone, tried for treason in having buried her rebel brother despite King Creon’s prohibition, never questions the validity of his royal authority or of the prohibition itself. She simply asserts that she acted out of allegiance to a higher law. The duty to her brother, she argues, supersedes that owed the king: “Nor did I think your proclamations strong enough to have power to overrule, mortal as they were, the unwritten and unfailing laws of the gods” (Sophocles II: Antigone, The Women of Trachis, Philoctetes, Oedipus at Colonus [ed. and trans. Hugh Lloyd-Jones; LCL 21; 2d ed.; Cambridge, Mass. and London: Harvard University Press, 1998], lines 453–55 [pp. 44– 45]; emphasis added). I have here corrected that translation at one point. Whereas Lloyd-Jones rendered  (line 455) as “ordinances,” I have substituted “laws.” The latter is both more accurate and more appropriate to the judicial context of Antigone’s speech as a direct response to Creon’s immediately preceding charge, where Lloyd-Jones had correctly rendered the same critical term: “And yet you dared to transgress these laws?” (  ; line 449 [pp. 42– 43]; emphasis added). 83 For this critical insight, see Lohfink, “Wirksamkeit des Gotteswortes,” 305– 6.

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the reduction of theory to ideology, Weber proposed the “ideal-type” as essential to the analysis of society: Whatever the content of the ideal-type, be it an ethical, a legal, an aesthetic, or a religious norm, . . . it has only one function in an empirical investigation. Its function is the comparison with empirical reality in order to establish its divergences or similarities, to describe them with the most unambiguously intelligible concepts, and to understand and explain them causally. Rational juridical concepts supply this need for the empirical history of law . . . .84

From this perspective, law does not merely enshrine or reflect the existing social order but provides a vantage point independent of it. Weber correctly saw that the elevation of the existing social order to an “ ‘ultimate value’ . . . is an inadmissible deduction of a value-judgment from a statement of fact.”85 Without a critical perspective that can distinguish itself from and evaluate the state, there is no defense against ideology, and the state becomes its own end. Law thus establishes, “that the state itself has no intrinsic value, that it is a purely technical instrument for the realization of other values from which alone it derives its value . . .”86 Weber thereby rejects any notion that the state—the maintenance of social order—should be its own end, with law the means. Instead, law makes it possible to distinguish “what is the case,” as the product of historical contingency, from “what must be the case,” where ideology transforms contingency into necessity. Only once that distinction is made and a concept of an ideal type established, does it then become possible to discuss, “What should be the case?” or, “What is right?” Deuteronomy’s draft constitution represents just such an ideal type: both a heuristic tool for the critical analysis of social reality and an articulation of a system of values. Yet the ancient authors of the legal corpus went farther than the modern social scientist in affirming the importance of a theoretical model. Deuteronomy’s visionary jurists insist that, for the social order to endure, it must embody their ideal type: Justice, only justice must you pursue, so that you may sustain your existence and so that you may inherit the land that Yahweh your God is about to give you. (Deut 16:20)87

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Max Weber, “The Meaning of ‘Ethical Neutrality’ in the Social Sciences” [1917], in idem, The Methodology of the Social Sciences (ed. and trans. Edward A. Shils and Henry A. Finch; New York: Free Press, 1949), 1– 47 (at 43; emphasis in original). 85 Ibid., 46. 86 Ibid., 47 (emphasis in original). 87 Taking the analysis here in a different direction, see Bernard M. Levinson, “The First Constitution: Rethinking the Origins of Rule of Law and Separation of Powers in Light of Deuteronomy,” Cardozo Law Review 27:4 (2006): 1853– 88.

Part II

The Paradigm of Legal Hermeneutics: Close Studies and Test Cases

Introduction to Part Two Chapters 5–8 function as case studies to highlight particular issues in the field of biblical law. Presumably, the laws investigated by each of these chapters already functioned in antiquity as paradigmatic cases in order to conceptualize matters of legal personhood (manumission, indenture) and religious fidelity (the boundary line between love of God and love of family). The four chapters are presented according to the canonical sequence of the biblical texts they address (Exod 21:2; Deut 13:7, 9, and 10). As a result, they appear in the reverse chronological order of their original publication. In each case, the chapters center on a single verse, which then becomes an opportunity to reflect upon larger methodological issues associated with the interpretation of biblical law, such as the relation of linguistics to historical-critical scholarship, the relation of higher and lower criticism, and the relation of textual criticism to Assyriology and the history of interpretation. Recent debate about the literary sequence of the Covenant Code, Deuteronomy, and the Holiness Code have centered on whether the Covenant Code precedes Deuteronomy (as in the older consensus, which I also advocate) or instead represents the latest of the sources. The manumission law of the Covenant Code has been invoked as a case study to test the question of priority, since it is attested in each of the three pentateuchal legal corpora. At one point, however, I felt that something was missing in the debate. Despite several mutually exclusive claims about the meaning of the protasis of the manumission law—what it could or could not mean, who was envisioned as its subject, and what was the legal-historical situation that it referenced—there had not been a serious study of its semantics. Chapter 5 consequently investigates the nature of verbal transitivity: how a verb construes its grammatical object, an issue which proved to be something of a “blind spot” in the conventional reference works for Biblical Hebrew. It was also necessary to find a way to think through the equally inconsistent assumptions of contemporary linguistics, on the one hand, and the more traditional handbooks, on the other, about whether the concept “accusative” is appropriate altogether as an analytical tool for a language like Hebrew, in which case endings are not preserved. Having to negotiate

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and resolve the various positions led me deeper into the material and, I believe, strengthened my reading of the manumission law. Deut 13 is one of the most fascinating, if not also simultaneously horrifying, units in the Bible. It is also a chapter where the key scholarly issues cut across questions of textual criticism, the composition and redactional history of the legal corpus, and the dating of the reception of Near Eastern treaty traditions into ancient Judah. The chapter commands religiously sanctioned violence in situations of extremis, requiring the execution of religious functionaries (prophet or oneiromancer), one’s own spouse or son or daughter, or even an entire city, in case of incitement to apostasy. In contrast to the summary execution of one’s intimates demanded in the Hebrew text, the majority of the ancient versions offer different readings, which ensure that any such killing should conform to the laws of due process. Similarly, the other ancient witnesses provide an ostensibly more logical list of the family members addressed by the law. Scholarly consensus has long advocated that the MT should be restored in light of the versions. The more I worked on Deut 13, the less I found myself in agreement with these approaches, as regards both the text-critical issue and the religious-legal situation contemplated by the passage. The consensus position seemed to me too politically correct: the “solution” failed to locate the chapter in its Near Eastern context, and mapped a postexilic “Jewish” view of law onto an Israelite text whose assumptions I saw as strongly influenced by the Neo-Assyrian loyalty oath (adê) tradition. My interpretation of the evidence was informed by my analysis of the literary structure of sedition within Esarhaddon’s Succession Treaty (or the Vassal Treaty of Esarhaddon), on the one hand, and the approach to textual criticism that I learned from Moshe Goshen-Gottstein on the other. It was methodologically important for me to take into account the full range of the versional evidence (and not just the Septuagint in isolation, as had commonly been done to that point), and to consider whether the versions preserved original readings or instead constituted exegetical corrections of a religiously problematic Vorlage. The results of these investigations are provided in chapters 6, 7, and 8, which concern themselves with Deut 13:7, 9, and 10, respectively. It has been very gratifying to see that these studies have helped bring about a change in the consensus regarding the textual criticism of the Hebrew Bible. The arguments provided for the originality of the readings witnessed by MT Deut 13:7 and 13:10 (chapters 61 and 82) have found quite 1

See Carmel McCarthy, Deuteronomy (BHQ 5; Stuttgart: Deutsche Bibelgesellschaft, 2007), 91*; and Timo Veijola, Das fünfte Buch Mose, Deuteronomium: Kapitel 1,1–16,17 (ATD 8.1; Göttingen: Vandenhoeck & Ruprecht, 2004), 289. Veijola’s support

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wide acceptance and have been accepted into the new edition of Biblia Hebraica Quinta. My study of the lexicography of Deut 13:9 (chapter 7), which argues that a key idiom within the verse has been misunderstood since antiquity, has also found acceptance in a number of quarters.3 It is also important to acknowledge several scholars who have taken the time to write thoughtful responses to my work. In particular, the original publication of chapter 8 (on Deut 13:10) has generated very interesting debate. I shall focus upon one response here and address the second, by Horst Seebass, in the Afterword to chapter 8 (p. 193). In her ironically titled challenge, Anneli Aejmelaeus seeks to defend the priority of the LXX reading of Deut 13:10.4 In order to do so, she dismisses the relevance of investigating the full range of ancient witnesses to this difficult biblical text, which I believe I was the first to do. She considers most of them (such as the Syriac PeshiÅta, the Vulgate, and the Targumim) irrelevant: “In the evaluation of a textual case the strategies of later versions play no role. The procedure followed by Levinson in his argumentation is not legitimate and definitely not convincing.”5 She contends, for example, that the Syriac PeshiÅta “is not to be regarded as an represents a reversal of his earlier position in which he argued for the restoration of the variant reading in the LXX, SP, and 11QTemple 54:19 (“Wahrheit und Intoleranz nach Deuteronomium 13,” ZTK 92 [1995]: 287–314 [at 303], repr. in idem, Moses Erben: Studien zum Dekalog, zum Deuteronomismus und zum Schriftgelehrtentum [BWANT 149; Stuttgart: Kohlhammer, 2000], 109–30 [at 122]). A recommendation has been made by Georg Braulik, as the editor responsible for Deuteronomy, to revise the Einheitsübersetzung (the official Bible translation used by the Catholic Church in German-speaking lands) in light of his being persuaded by the arguments in the original publications of chapters 6 and 8 (Georg Braulik, personal email communication, June 19, 2008). 2 See McCarthy, Deuteronomy, 92*. See further Veijola, “Wahrheit und Intoleranz,” 302, repr., Moses Erben, 121n77; idem, “Deuteronomismusforschung zwischen Tradition und Innovation (I),” Theologische Rundschau 67 (2002): 273–327 (at 297n44); idem, Deuteronomium, 290n980; Juha Pakkala, Intolerant Monolatry in the Deuteronomistic History (Publications of the Finnish Exegetical Society 76; Göttingen: Vandenhoeck & Ruprecht, 1999), 21; Udo Rüterswörden, “Dtn 13 in der neueren Deuteronomiumforschung,” in Congress Volume: Basel 2001 (ed. A. Lemaire; VTSup 92; Leiden: Brill, 2002), 185–204 (at 199). 3 See McCarthy, Deuteronomy, 92*. See further Veijola, “Deuteronomismusforschung,” 296–97; idem, Deuteronomium, 289n976; and Horst Seebass, “Noch einmal zu Dtn 13,10 in Dtn 13,7–12,” ZABR 5 (1999): 186–92 (at 187n5). 4 Anneli Aejmelaeus, “Licence to Kill? Deut 13:10 and the Prerequisites of Textual Criticism,” in Verbum et Calamus: Semitic and Related Studies in Honour of the Sixtieth Birthday of Professor Tapani Harviainen (ed. H. Juusola et al.; StudOr 99; Helsinki: Finnish Oriental Society, 2004), 1–22; republished in and cited according to eadem, On the Trail of the Septuagint Translators: Collected Essays (Revised edition; Contributions to Biblical Exegesis & Theology 50; Leuven: Peeters, 2007), 181–204 (at 187–88). 5 Aejmelaeus, “Licence to Kill,” 190.

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independent witness since it probably at least partly depends on the MT,”6 a claim for which she provides no evidence. Instead she simply cites an article by Jan Joosten as the basis for her claim and then immediately continues: “The translation of the Peshitta probably started in the 2nd century C.E. with the Pentateuch, and the Hebrew parent text was very close to the consonant [sic] text of the MT.”7 The difficulty, however, is that Aejmelaeus misunderstands and inverts Joosten’s actual position in that article. He begins by describing the conventional view of the late nature of the Syriac and its lack of text-critical interest, only then to present his own affirmation of its importance. Aejmelaeus overlooks this distinction. She mistakenly attributes the conventional view, which she holds, to him, although Joosten rejects it as no longer tenable in light of the evidence: Cependant, l’établissement d’un texte relativement fiable, et la reconnaissance de la PAT comme une version relativement ancienne et indépendante devrait incliner les chercheurs vers une révision de ce jugement. Dans la pratique une grande prudence sera toujours nécessaire, mais du point de vue théorique il est certain que la PAT contient des leçons dues à un texte hébreu qui divergeait du texte massorétique. Entre ces variantes qui n’ont pas leur origine dans le processus de traduction il pourra se trouver des leçons originales. La critique textuelle devra nécessairement en tenir compte.8 [However, the establishment of a relatively reliable text, and the recognition of the PeshiÅta as a relatively old and independent version should incline researchers towards a revision of this judgment. In practice, great prudence will always be necessary, but from the theoretical point of view it is certain that the PeshiÅta contains readings due to a Hebrew text that diverged from the Masoretic text. Among these variants that do not have their origin in the translation process it is possible to find original readings. Textual criticism must necessarily take this into account.]

In cases such as Deut 13:10–11, where there is genuine uncertainty regarding an original reading, textual criticism must carefully consider the full range of ancient witnesses, as I have sought to do, rather than arbitrarily dismiss relevant evidence.

6

Ibid., 187. Ibid., 187n20. 8 Jan Joosten, “La Peshitta de l’Ancien Testament dans la recherche récente,” RHPR 76 (1996): 385–95 (at 394–95; emphasis added; my translation). Joosten’s case-studies confirm his position: idem, “1 Samuel xvi 6, 7 in the PeshiÅta version,” VT 41 (1991): 226–33; and idem, “The Hebrew and Syriac Text of Deuteronomy 1:44,” in Text, Translation and Tradition: Studies on the Peshitta and its Use in the Syriac Tradition Presented to Konrad D. Jenner on the Occasion of his Sixty-Fifth Birthday (ed. W. Th. van Peursen and R. B. ter Haar Romeny; Monographs of the Peshitta Institute 14; Leiden: Brill, 2006), 65–69. 7

5. The “Effected Object” in Contractual Legal Language: The Semantics of “If You Purchase a Hebrew Slave” (Exodus 21:2) The protasis of the Covenant Code’s law of manumission for male slaves has long attracted scholarly attention. Its second-person formulation has given rise to extended debate:     , “If you purchase a Hebrew slave . . .” (Exod 21:2a ). Classical form critics sought to emend the verb to the third person, as in the other casuistic laws of the Covenant Code1 and cuneiform law.2 More recently, John Van Seters has directed new attention to the manumission law.3 In his opposition to form-critical assumptions, he offers a plausible defense of the originality of its formulation: an author working within a literary tradition could draw upon secondperson literary models elsewhere in biblical law and need not have been

1

Given the predominant third-person formulation, Alfred Jepsen maintained: “Eine Ausnahme von dieser Regel findet sich nur [Exod] 21,2, wo der MT lautet:   ; da die zweite Person in den Mischpatim immer Zeichen eines Einschubs oder einer Überarbeitung ist, darf man annehmen, dass auch hier der Satz begann:    ” (Untersuchungen zum Bundesbuch [BWANT 41; Stuttgart: W. Kohlhammer, 1927], 56; see also 1). Albrecht Alt had an alternative approach. Accepting the need for the third person, he proposed instead a reconstruction that could account for the use of the nipal form of the verb mkr attested in the corresponding manumission laws of Deuteronomy and the Holiness Code (Deut 15:12a; Lev 25:39a). On that basis, he suggested:   

  , “If a Hebrew man is sold” (see idem, Die Ursprünge des israelitischen Rechts [Leipzig: S. Hirzel, 1934]; reprinted in and cited according to idem, Kleine Schriften zur Geschichte des Volkes Israel [Munich: C. H. Beck, 1953], 1.278 –332 [at 286 – 87]). 2 See the synoptic presentation of biblical law alongside the corresponding provisions of the Laws of Hammurabi, the Hittite Laws, and the Middle Assyrian Laws provided by Anton Jirku, Altorientalischer Kommentar zum Alten Testament (Leipzig: A. Deichert, 1923; repr., Hildesheim: Gerstenberg, 1972), 93. For the influence of SumeroAkkadian law upon biblical legal syntax, with bibliography, see Bernard M. Levinson and Molly M. Zahn, “Revelation Regained: The Hermeneutics of  and  in the Temple Scroll,” DSD 9 (2002): 295–346. 3 John Van Seters, A Law Book for the Diaspora: Revision in the Study of the Covenant Code (New York: Oxford University Press, 2003), 82– 95. This work draws upon earlier studies; most relevant here is idem, “The Law of the Hebrew Slave,” ZAW 108 (1996): 534– 46.

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restricted to the third-person form.4 On that basis, he seeks to redefine the conventional scholarly debate concerning the protasis. He shifts attention to its semantics: “The most obvious and direct meaning of this statement is that the person is already a slave for whatever reason and has been purchased from another owner.”5 If the individual being purchased were a free man, Van Seters claims, the law would not logically employ the term . At issue, therefore, must be the purchase of someone “already a slave”; otherwise the formulation would be redundant. This semantic analysis is as distinctive as Van Seters’s dating of the manumission law—and with it, the entire Covenant Code—to the exile. Precisely on the strength of the manumission law, other proponents of a late Yahwist concede the preexilic date of the casuistic laws of the Covenant Code.6 In antiquity, a related proposal was considered by Tannaitic legal exegesis of the Covenant Code before being deemed invalid.7 In modern 4

Van Seters, Law Book for the Diaspora, 22–23, 86 – 87. For attestation of the second-person formulation of Exod 21:2 in an inner-biblical citation, see Bernard M. Levinson, “The Manumission of Hermeneutics: The Slave Laws of the Pentateuch as a Challenge to Contemporary Pentateuchal Theory,” in Congress Volume, Leiden 2004 (ed. André Lemaire; VTSup 109; Leiden: E. J. Brill, 2006), 281–324. Indeed, authors working with texts had a greater range of literary expression than conventionally accorded them by standard form-critical or redactional models. See Norbert Lohfink, “Gab es eine deuteronomistische Bewegung?” in Jeremia und die «deuteronomistische Bewegung» (ed. Walter Groß; BBB 98; Weinheim: BELTZ Athenäum, 1995), 313– 82; reprinted in idem, Studien zum Deuteronomium und zur deuteronomistischen Literatur III (SBAB 20; Stuttgart: Katholisches Bibelwerk, 1995), 65–142. Abridged translation: “Was There a Deuteronomistic Movement?” in Those Elusive Deuteronomists: The Phenomenon of Pan-Deuteronomism (ed. Linda S. Schearing and Steven L. McKenzie; JSOTSup 268; Sheffield: Sheffield Academic Press, 1999), 36 – 66. 5 Van Seters, Law Book for the Diaspora, 87 = “Law of the Hebrew Slave,” 540. Despite citing Åke Viberg two pages later on the manumission law, Van Seters here overlooks Viberg’s similar formulation concerning its protasis: “There is also the matter of the logic of the statement, namely, that if a slave is said to be bought, then he must surely have been a slave before the purchase” (Symbols of Law: A Contextual Analysis of Legal Symbolic Acts in the Old Testament [ConBOT 34; Stockholm: Almqvist & Wiksell International, 1992], 84 [emphasis added]). Also overlooked is Viberg’s proposal for a solution (see n. 32 below). 6 See Christoph Levin, “Das Deuteronomium und der Jahwist,” in Liebe und Gebot: Studien zum Deuteronomium: Festschrift zum 70. Geburtstag von Lothar Perlitt (ed. Reinhard G. Kratz and Hermann Spieckermann; FRLANT 190; Göttingen: Vandenhoeck & Ruprecht, 2000), 121–136 (at 132–33); reprinted in idem, Fortschreibungen: Gesammelte Studien zum Alten Testament (BZAW 316; Berlin and New York: Walter de Gruyter, 2003), 96 –110. 7 The precedent is overlooked by Van Seters. Rabbinic legal exegesis construed the phrase   as moderns do: an absolute noun followed by a nisbe that functions as an attributive adjective, i.e., “a Hebrew slave.” While discussing various options for the law’s application, however, the possibility was entertained that the nisbe served as nomen

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scholarship, however, the proposal is new and discussion of it remains deadlocked. Eckart Otto has repeatedly challenged the claim.8 His objections have met with rejoinders from Van Seters, who continues to insist: “There is no escape from the plain meaning of the text.”9 The assertion on both sides that the proposed reading is self-evident is open to question. Neither Van Seters nor Otto adduces textual, linguistic, or comparative evidence.10 The question has become so closely tied to their debate about rectum of a construct phrase (as is grammatically possible). Thus construed, the phrase was “translated” into the syntax of Rabbinic Hebrew as:   , “the slave of a Hebrew” or, literally, “his slave: [namely, one] belonging to a Hebrew.” (To express a genitive, Rabbinic Hebrew prefers this construction, with anticipatory pronominal suffix plus a relative clause, over the classical biblical construct). The protasis would thereby apply to someone already a slave prior to purchase. In the rabbinic understanding, the slave addressed by the law would be a “Canaanite slave”: a non-Israelite held by an Israelite owner. Sabbatical legislation associated with manumission would then apply to non-Israelites. This analysis of the protasis was rejected, less on semantic grounds than because it created a conflict with the rabbinic reading of the jubilee legislation of Leviticus 25. For convenient text and translation, see Jacob Z. Lauterbach, Mekilta de-Rabbi Ishmael (3 vols.; Philadelphia: Jewish Publication Society, 1933–1935), 3:3. 8 Eckart Otto initially challenged the hypothesis on the basis of colloquial language, on analogy with formulations like “ein Präsident sei gewählt” (Das Deuteronomium: Politische Theologie und Rechtsreform in Juda und Assyrien [BZAW 284; Berlin: Walter de Gruyter, 1999], 303–11 [at 305 n. 451]). Subsequently, he twice repeats the challenge, at points verbatim, although shifting away from the notion of colloquial language and proposing instead “performative Konnotation”; see idem, “Deuteronomium und Pentateuch: Aspekte der gegenwärtigen Debatte,” ZABR 6 (2000): 221– 84 (at 249) = idem, “Exkurs: Das Deuteronomium als Quelle des Bundesbuches? Zu einer These von John Van Seters,” in Gottes Recht als Menschenrecht: Rechts- und literaturhistorische Studien zum Deuteronomium (BZAR 2; Wiesbaden: Harrassowitz, 2002), 20 –24 (at 22–23). Otto bases his objection upon speech act theory, although what “performative connotation” means remains unexplained. Speech act theory seems irrelevant in this context, since spoken discourse is not at issue. Instead, the protasis defines a hypothetical legal case. Conversely, when performative utterances occur in the manumission law, they are marked with citation formulae (as at Exod 21:5). 9 Van Seters, Law Book for the Diaspora, 190 n. 17 and, for the quote, 191 n. 28. 10 Van Seters reduces Otto’s proposal that the verb  involves a “Statusänderung” to an absurdity: “The verb  is regularly used with the acquisition of property, and it is ridiculous to think that the article or object being purchased is actually being made at that moment” (Van Seters, Law Book for the Diaspora, 190 n. 17; rejecting Otto). There are several ironies here. On the one hand, Van Seters flattens the verb to a single semantic plane, without adducing textual support or citing any of the standard grammars of classical Hebrew. On the other hand, Otto’s defense of his position is confused. He valuably introduces the notion of a change of status as implicit in the verb: “diese performative Konnotation der Statusänderung” (“Deuteronomium und Pentateuch,” 248 n. 120 = idem, “Exkurs: Das Deuteronomium als Quelle des Bundesbuches,” 22 n. 94). To defend this claim, he cites Edward Lipi ski (“qnh,” ThWAT 7 [1993]: 63– 67 [= TDOT 13 (2004): 58– 65]). No other evidence is provided. In fact, there is no notion of a status change or

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whether the Covenant Code precedes Deuteronomy (Otto) or follows it (Van Seters) that progress is impossible; each simply restates his position. Perhaps most strikingly, nowhere in the existing debate is there a discussion of Hebrew syntax, an analysis of how verbs are construed with their complements, or even direct reference to the standard grammars and textbooks to see whether they might shed light on the matter. Breaking through this impasse requires separating the semantic issue—the meaning of the verb and its grammatical object—from the historical-critical questions. The latter are best discussed independently elsewhere.11 Resolving the issue requires a closer analysis of transitivity in Hebrew verbs, with particular attention paid to the impact of a verb’s action upon its grammatical object or, in the terminology of linguistics, its “patient”: “the entity which is affected by the action of the verb.”12 In order to clarify the semantics of the protasis, it is necessary to introduce a distinction between two different types of grammatical patient that may not be widely known, except to specialists in language and linguistics. At the same time, however, the exegetical dispute points to some areas where even the most advanced grammars might profitably be revised in light of the textual evidence of biblical law. To anticipate the conclusions: The “slave” of the protasis did not already exist in enslaved status but instead acquires that status through the activity expressed by the verb. The grammatical patient is here an effected object whose status is changed by the action of the verb “purchase.” It is not an affected object, as Van Seters implicitly assumes. In the context of verbs of creation and appointment, this kind of effected “performative connotation” in Lipi ski’s article. The two key meanings for  that Otto defends on the basis of Lipi ski’s work—“ ‘Zeugens’ und ‘Erschaffens’ ” (“to beget” and “to create”)—are precisely those that Lipi ski sharply restricts, almost to the point of denial. Lipi ski restricts the former to four cases and the latter to two out of a total of eighty-three attestations. He treats both as simple semantic shifts from the single meaning, “to acquire.” 11 See David P. Wright, review of John Van Seters, A Law Book for the Diaspora: Revision in the Study of the Covenant Code, JAOS 124 (2004): 129–31; idem, “The Laws of Hammurabi as a Source for the Covenant Collection (Exodus 20:23–23:19),” Maarav 10 (2003): 11– 87; Bernard M. Levinson, “Is the Covenant Code an Exilic Composition? A Response to John Van Seters,” in In Search of Pre-Exilic Israel: Proceedings of the Oxford Old Testament Seminar (ed. John Day; London: T. & T. Clark, 2004), 272–325 [repr., ch. 12 infra]; idem, “Manumission of Hermeneutics,” 281–324; Jean-Louis Ska, “A Plea on Behalf of the Biblical Redactors,” ST 59 (2005): 4 –18; idem, review of John Van Seters, The Edited Bible: The Curious History of the “Editor” in Biblical Criticism, Bib 89 (2008): (forthcoming); and Bernard S. Jackson, Wisdom-Laws: A Study of the Mishpatim of Exodus 21:1–22:16 (Oxford and New York: Oxford University Press, 2006), 16 –23. 12 See David Crystal, A Dictionary of Linguistics and Phonetics (5th ed.; Oxford: Basil Blackwell, 2003), 340.

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object construction frequently entails a proleptic naming of the verbal object. Detailed grammatical analysis, accompanied by comparative law and inner-biblical parallels, supports these conclusions.

The Concept of the “Effected Object” Van Seters argues that the individual must “already” have been a slave at the time of purchase because the term “slave” is employed as the direct object of the verb “to purchase.” Implicitly, Van Seters takes for granted that the protasis refers to an “affected object” whose existence precedes the activity of the verb. He thereby fails to consider the semantic category of “effected object.” Distinguishing between the two types of direct object is essential to the correct analysis of the manumission law’s protasis: [A] distinction will be made between . . . two kinds of direct object, i.e. between the affected object and the effected object. . . . . . . Whereas the affected object . . . is understood as existing prior to the action, the effected object is produced by the action itself. Thus Gn 1.29,      ! (cf. 1.11, 12) producing seed,   ! is an effected object, whereas it is an affected object in   !   " sow, (throw) the seed of Dt 11.10; 22.9 etc.13

This distinction has long been recognized in Greek and Latin grammars and derives from them.14 Carl Brockelmann introduced it into comparative Semitics.15 He begins by establishing a contrast with the affected object (“das affizierte Objekt”): Während sich in den bisher besprochenen Verbindungen die Tätigkeit des Verbums auf ein bereits vorhandenes Objekt richtet, gibt es auch Fälle, in denen

13

Paul Joüon and Takamitsu Muraoka, A Grammar of Biblical Hebrew (2d ed.; SubBi 14/1–2; 2 vols.; Rome: Pontifical Biblical Institute, 1993), 2:440 (§125a), and 2:449 (§125p), emphasis and bold in original. Note the valuable revision: (3d ed.; SubBi 27; 2 vols. in 1; Rome: Pontifical Biblical Institute, 2006), 410 (§125a), and 420 (§125p). For the convenience of the reader, subsequent references to this work (henceforth = Joüon and Muraoka) cite it according to both the 2d and 3d editions. 14 Thus Gildersleeve’s Latin Grammar (1867) distinguishes between: “the Inner Object or Object Effected . . . and . . . the Outer Object or Object Affected” (ed. Basil L. Gildersleeve and Gonzalez Lodge [3d rev. ed.; London: Macmillan, 1895], 208 [§329]). Similarly, the direct object may be either an “internal object (object effected)” or an “external object (object affected)”; see Herbert Weir Smyth, Greek Grammar (Cambridge, Mass.: Harvard University Press, 1920), 354 (§§1554 a–b). 15 Carl Brockelmann, Grundriss der vergleichenden Grammatik der semitischen Sprachen (2 vols.; Berlin: Reuther & Reichard; New York: Lemcke & Buechner, 1908 – 1913; repr., Hildesheim: Georg Olms, 1961), 2:291–308 (§§201–204). Brockelmann retains this distinction in Hebräische Syntax, published just after his death ([Neukirchen Kreis Moers: Erziehungsverein, 1956], 81– 85 [§§92– 93]).

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II. The Paradigm of Legal Hermeneutics: Close Studies and Test Cases das Objekt durch die Tätigkeit erst hervorgerufen wird. Entweder entsteht durch sie eine Sache oder ein Sachverhältnis, die als Resultat die Tätigkeit selbst überdauern; oder aber die Tätigkeit selbst wird nach Analogie dieser konkreten Resultate als ihr eigenes Ergebnis dargestellt.16 [In the combinations discussed thus far, the action of the verb is directed toward an already existing object. There are also cases, however, in which the object is instead brought forth by the action. It either causes the thing(s) to be described or relations between them to appear (as a result, these things and relations endure beyond the action of the verb); or, conversely, the action, by analogy with those concrete results, is represented as its own outcome.]

Brockelmann’s formulation seems to lie behind the one just cited from Joüon and Muraoka. The distinction is made more concise by Bruce K. Waltke and Michael O’Connor: “The effected-object accusative is the result or effect of a transitive verb’s action.”17 The example they provide 16 Brockelmann, Grammatik der semitischen Sprachen, 2:291 (§201, emphasis added; my translation in following paragraph). 17 Bruce K. Waltke and Michael Patrick O’Connor, An Introduction to Biblical Hebrew Syntax [henceforth = IBHS] (Winona Lake, Ind.: Eisenbrauns, 1990), 166 (§10.2.1f). A note should be added here in light of the terminology employed in the quote. The question is whether it is appropriate at all to employ the traditional term, “accusative,” to languages like Hebrew that lack a case system. A case against the use of such terminology has been made from the perspective of linguistics, which prefers to restrict the term to languages that are inflected (like Akkadian, Arabic, and German). “Linguists emphasize that it is not clear to use terms like ‘accusative’ in languages which do not inflect words in this way” (Crystal, Dictionary of Linguistics, 6). On that basis, linguists would prefer to see only terms like “object” employed for Hebrew (Harald Schweizer, “Was ist ein Akkusativ?—Ein Beitrag zur Grammatiktheorie,” ZAW 87 [1975], 133– 46 [at 138, 141]). This desideratum from the perspective of linguistics has not penetrated widely into more traditional grammars of classical Hebrew. The only grammar to incorporate this perspective is John C. L. Gibson, Davidson’s Introductory Hebrew Grammar: Syntax (4th ed.; Edinburgh: T. & T. Clark, 1994), 108 (§88 Rem. 1). The understandable desire for theoretical consistency notwithstanding, reference to the case system often helps explain certain features of syntax more effectively than a rigid functional analysis alone. Gibson’s rejection of the term “adverbial accusative” serves as a case in point. He suggests an alternative explanation: “Nouns and adjectives may be freely used in an adverbial function. . . . They should not be called adverbial ‘accusatives’. . . .” (ibid., 143 [§117]). That alternative represents a loss of explanatory power. It is too simplistic, since the adverbial use of nouns in this way does not occur “freely.” Such common nouns as “word,” “king,” or “man” are never employed adverbially in Hebrew. Traditional grammars offer a more coherent explanation of the construction, by viewing it as part of the legacy of the Semitic case system. Moreover, many languages that do have a case system, like German, nonetheless do not distinguish between nominative and accusative for nouns that are neuter in gender. This is not the place to work out these larger terminological and methodological issues. For the purposes of this study, the terminology of traditional grammars will be employed, with the understanding that any reference to “accusative” in the case of Hebrew denotes not a case but a syntactic function (see IBHS, 126 [§8.1d]).

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drives the point home:  #  , “Let the earth produce vegetation” (Gen 1:11). Prior to the action of the causative verb, the verbal complement ( , “grass”) did not exist. Instead, it first comes into existence through the action of the denominative verb and endures afterward. The verb does not act upon but rather creates its object. An effected object, as discussed here, is thus a prototypical semantic patient (as status, category, or thing, depending upon context) that is created by means of the activity expressed by the verb. An affected object is much less. Although the distinction between the two forms of object is not grammatically encoded in Hebrew, it can be recognized semantically and becomes obvious in certain constructions. Surprisingly, despite the increasing attention of linguists to transitivity, the effected object has received scant attention. The discussion remains frozen where it stood when first introduced by Brockelmann a century ago.18 There are several ways in which the conventional model of the effected object is too narrow and should be modified. Doing so will clarify the semantics of the manumission law’s protasis.

The “Effected Object” Should Not Be Restricted to Cognate Objects According to the standard textbooks, “The effected object . . . is rather rare; it is hardly ever found except with a verb of the same root (often denominative).”19 That assumption, evident in the examples already cited from the traditional grammars, should now be reconsidered. Restricting the effected object to verbs of the same root (thus: in a cognate object or figura eytmologica construction) overlooks that certain verbs almost by definition take an effected object. A prime example might be:      , “God created humankind” (Gen 1:27; similarly, 1:26).20 An 18 Contrast the methodological advance as regards the affected object by W. Randall Garr, “Affectedness, Aspect, and Biblical et,” ZAH 4 (1991): 119–34. 19 Joüon and Muraoka, 2d ed., 2:450 (§125p); or 3d ed., 420 (§125p). The same formulation reappears nearly verbatim: “The effected accusative is rare except with a denominative verb of the same root” (Bill T. Arnold and John H. Choi, A Guide to Biblical Hebrew Syntax [Cambridge: Cambridge University Press, 2003], 15 [emphasis in original]). The examples in IBHS are similarly restricted to “the effected-object accusative” (166 – 67 [§10.2.1f]). 20 The parade example of the accusative by Ronald J. Williams, Hebrew Syntax: An Outline (2d ed.; Toronto: University of Toronto Press, 1976), 12 (§50). His discussion makes no reference to either the affected or the effected object, however. The new edition now makes the distinction between the affected object (§50) and the effected object (§52), but carries over Gen 1:27 as an example of the former rather than the latter; see

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affected object in this case results in a logical and theological absurdity. This phenomenon, which has been overlooked in the grammars, warrants further attention. 1. The Effected Object Construction with Verbs of Appointment “Verbs of creation and appointment” are often ditransitive: they govern two direct objects.21 The first object specifies the person appointed while the second indicates the rank or office: $    , “He made his sons judges” (1 Sam 8:1).22 A corresponding ditransitive construction occurs frequently in Akkadian, where the first object is an accusative of person and the second, an accusative of thing, content, or means.23 The categories of affected and effected object should be extended to the double-object construction associated with verbs of appointment. Integrating the two separate categories in this way provides a valuable analytical tool. The “person appointed” corresponds to the affected object: the pre-existing patient that receives the action of the transitive verb. The “rank” represents an effected object: the change in the patient’s status that occurs because of the verbal action and that did not previously exist. This approach illuminates the semantics of the verb  as a verb of appointment. In its contractual or legal function, “to appoint” someone to office, the qal verb may be construed with a double object: the first, an affected object (the person appointed to office), and the second, the effected object (the new office that the patient assumes):

   You shall appoint them livestock officers. (Gen 47:6)

Williams’ Hebrew Syntax (revised and expanded by John C. Beckman; 3d ed.; Toronto: University of Toronto Press, 2007), 19. This error is slated to be corrected in a future printing (John C. Beckman, private email communication, 9 July 2007). 21 For the term “ditransitive,” see Crystal, Dictionary of Linguistics, 147, 473–74. For the syntax of verbs of creation and appointment, see IBHS, 174 –75 (§10.2.3c). With a focus on the double-object construction and its transformations, see Menahem Zevi Kaddari, Studies in Biblical Hebrew Syntax (Ramat Gan: Bar Ilan University Press, 1976), 15–23 (Hebrew). 22 IBHS, 175 (§10.2.3d, #19); the original marks the initial stress on the verb. 23 Wolfram von Soden, with Werner R. Mayer, Grundriss der Akkadischen Grammatik (3d ed.; AnOr 33; Rome: Pontifical Biblical Institute, 1995), 245– 46 (§145). While most common in the causative Š-stem, von Soden offers a number of examples of the double accusative with verbs in the G stem, such as kaspam . . . A. pul-šu, “A reimbursed him the money,” in Old Assyrian (§145f; see also §145c).

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      %  In that case, I appoint you watchman at my head [i.e., my bodyguard] for life. (1 Sam 28:2)

   $  They made me guard the vineyards. (Cant 1:6)

2. Prepositional Variations on the Ditransitive Construction The double-object construction may be recast to mark the status change in a different way.24 This construction retains the patient as affected object, while the new status or title is placed in an adverbial phrase, introduced by  essentiae (of identity):

     . . .      

Choose for yourselves wise men . . . , that I might appoint them your leaders. 25 (Deut 1:13)

Alternatively, the new status may be marked with  of product or result:

%        The people appointed him head and ruler over them. (Judg 11:11)

   %   God has made me lord of all Egypt (Gen 45:9)

In the first example, the action of the people upon Jephthah, the patient, makes him their ruler. His new rank, the status change, is marked by the coordinated adverbial phrases, each introduced by the preposition. In the second example, in the pronominal suffix on the verb, Joseph refers to himself as the patient (affected object) of God’s action; his new office as second only to Pharaoh underscores the former slave’s change of status. Some scholars maintain that even the cases employing  could profitably be analyzed as a double-object construction.26 At issue is a debate within 24

I do not mean to imply that the double-object construction is necessarily prior in chronological terms. At the same time, assuming that it is logically prior helps clarify the semantic issues. More properly, the changes should be seen simply in terms of free variation. 25 Identifying the beth essentiae here, see Heinrich Ewald, Ausführliches Lehrbuch der hebräischen Sprache des Alten Bundes (8th ed.; Göttingen: Dieterich, 1870), §217f. 26 “[T]he role of the second accusative may be played by the object of a prepositional phrase with l ” (IBHS, 174, [§10.2.3c n. 22]). See also Joüon and Muraoka, 2d ed., 2:453–54 (§125w n. 2); or 3d ed., 424 –25 (§125w n. 3). The protasis of the Covenant Code’s law regarding female slaves, which immediately follows the law under discussion, would thereby employ this construction. The prepositional phrase with l replaces the effected or second object:          , “If a man sells his daughter as a female slave . . .” (Exod 21:7a). This example is not adduced in the relevant discussions provided by IBHS. In Aramaic and Ethiopic, l often marks what semantically

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linguistics about transitivity that cannot be resolved here. The concept of “oblique object” might provide a productive compromise.27 In any case, the examples are clear enough and demonstrate the semantic variation for expressing change of status.28 3. Alternative Variation: Ellipsis of the Affected Object Verbs of appointment may also vary the ditransitive construction by eliding the affected object and retaining the effected object alone:

$    He made his sons judges. (1 Sam 8:1)



#  $  He set up judges in the land. (2 Chr 19:5)

The narrative logic—the Chronicler’s account of Jehoshaphat’s introduction of a comprehensive judicial system throughout Judah—makes it clear that the noun “judges” can only be understood as the effected object of the verb. Viewing it as an affected object, although grammatically possible, is contextually inappropriate.29 The point of the narrative is that no such system of a royally-appointed judiciary was previously in place.30 On that corresponds to a direct object; in certain cases, this also seems to be the case in classical Hebrew. See Geoffrey A. Khan, “Object Markers and Agreement Pronouns in Semitic Languages,” BSOAS 47 (1984): 468 –500; and IBHS, 184 (§10.4b). 27 See Takamitsu Muraoka, “On Verb Complementation in Biblical Hebrew,” VT 29 (1979): 425– 435. 28 A recent dissertation explores prepositional variation in the way a verb construes its patient: see Michael Malessa, Untersuchungen zur verbalen Valenz im biblischen Hebräisch (Studia Semitica Neerlandica 49; Assen: Royal Van Gorcum, 2006), 67–127. The author maintains that the choice between accusative marker and preposition reflects the degree of affectedness (partial/full) of the verbal patient. The study provides a wealth of statistical analysis and helpful distinctions, though it does not consider any of the cases discussed here nor the category of verbs of appointment. The next step would be to investigate valence in terms of both affectedness and effectedness (the latter category of verbal patient is overlooked in the volume). It would also be helpful to go beyond Malessa’s largely formalist approach so as to provide a more context-sensitive semantic analysis. This would permit consideration of cases where the change in status of the patient takes place over the course of time, such as “to bear a man” (Job 3:3), i.e., to bear a child who is to become a man; or “to build ruins” (Job 3:14), i.e, to build buildings that are to become ruins. (I am grateful to Prof. Holger Gzella, Leiden, for his helpful comments and the latter two examples; personal email, June 18, 2007.) 29 In contrast, the formally similar construction at 1 Kgs 12:32 entails an affected object construction, since Jeroboam had already appointed the priests in question (v. 31) and merely stations them at Beth El. 30 The narrative represents a literary reworking of earlier material by the Chronicler and should not be seen as historical. See Gary N. Knoppers, “Jehoshaphat’s Judiciary and ‘the Scroll of YHWH’s Torah,’ ” JBL 113 (1994): 59– 80; Alexander Rofé, “The Law about the Organization of Justice in Deuteronomy (16:18 –20; 17:8 –13),” Beth Mikra 65

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basis, the direct object designates the new office (effected object) to which the men of Judah (the elided affected object) were appointed by the King. As we have previously seen, the reference to the new title, status, or office logically remains indefinite. That makes good sense, since the object in question is not a specific object that is acted upon but rather an office or role to which the implied patient is appointed. The distinction between the two types of object is not coded into the text, whether by morphology or by syntax. Given the elliptical construction under discussion, it is important to recognize that the single accusative retained is an effected object (designating title or legal status). Confusing it with an affected object leads to improbable results.31 The manumission law provides another example of elision of the affected object and retention of the indefinite effected object alone. Although the distinction between the two types of object is not formally coded into the text, to confuse them does violence to the text. Before this hypothesis can be developed, however, a particular application of the effected object construction should be introduced. 4. Proleptic Reference to the Effected Object Elision of the affected object means that the patient who undergoes that change (the man or woman who becomes a judge, a king, a wife, or who is purchased as a slave) is not formally identified in the construction. Instead, the patient is referenced proleptically in terms of the new status, office, or title (the grammatically-indefinite effected object) that actually comes about only upon completion of the verbal action: to appoint a judge or king; to “take” a wife; or to purchase a slave.32 The ditransitive construction remains implicit in such constructions. (1976): 199–210 (Hebrew; English abstract); and Bernard M. Levinson, Deuteronomy and the Hermeneutics of Legal Innovation (Oxford and New York: Oxford University Press, 1997), 126. 31 For example, the men whom God recommends that Moses select as future leaders (“able men who are God-fearing . . .”) must logically serve as the implied affected object in the subsequent coordinated clause, which specifies only the effected object:       , “You shall set [such men] over them [the nation] as officers over thousands, officers over hundreds . . .” (Exod 18:21). 32 The proleptic naming of the grammatical object in Exod 21:2a has long been proposed, although not previously with linguistic or semantic justification. Older approaches to the manumission law, seeking to move behind the late date assigned the sources by the historical-critical method, regarded its lexicon as opening a window into Israel’s premonarchic past. They construed the term  not as an ethnic designation (the nisbe “Hebrew”) but in sociological terms, as connected to the piru/biru known in cuneiform literature, a landless class who hired themselves out in service to host populations. In that case, the formulation   would represent a double reference to the slave. In

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a) The Appointment of the Monarch When the elders of Israel approach Samuel in Ramah, they make an urgent appeal to him:   

$    “Appoint a king for us, to rule over us, like all the nations” (1 Sam 8:5). The semantic analysis proposed by Van Seters for the manumission law would create an absurdity if applied here: “The most obvious and direct meaning of this statement is that the person is already” a king. That approach would construe “king” as the affected object (accusative of person) of the verb “appoint.” Yet the whole point of the narrative is that Israel has never had a human monarch: the individual whom Samuel is to appoint could not previously have been a king, let alone a member of any dynastic line. The individual would only become a king upon his formal appointment and anointing into office. The term “king” is therefore used proleptically: it designates the effected object, not an affected object. Observing that the object is grammatically indefinite reinforces this analysis: a specific, already existing patient is not in question. Rather, the action of appointing is what will effect the pa-

order to avoid the tautology, the protasis was construed as functioning proleptically: “insofern ein »Hebräer« dadurch, daß ein Israelit ihn »erwarb«, zum Sklaven wurde” (so Martin Noth, Das zweite Buch Mose: Exodus [ATD 5; 6th ed.; Gottingen: Vandenhoeck & Ruprecht, 1978], 143 [emphasis added]). A similar analysis had already been proposed by Alt (Kleine Schriften, 1:291 n. 2). This line of reasoning, and the difficulties created by the sociological reading of , is summed up well by Niels Peter Lemche: “ is most troublesome where it stands now, and, if MT is to be abided by, it can best be understood as a proleptic expression. Not until he is bought or sold, does an  become a slave” (“ ‘The Hebrew Slave’: Comments on the Slave Law Ex. xxi 2–11,” VT 25 [1975]: 129– 44 [135]). The evidence, however, controverts this sociological reading, which arises from the desire to archaize the text. In actuality, whenever the term  is employed in the Bible it functions as a nisbe to designate an Israelite (see Ingrid Riesener, Der Stamm  im Alten Testament: Eine Wortuntersuchung unter Berücksichtigung neuerer sprachwissenschaftlicher Methoden [BZAW 149; Berlin and New York, 1979], 115–21). The claim by Ludger Schwienhorst-Schönberger that the nisbe term is a late addition to the text, in the attempt to make it consistent with Deut 15:12, amounts to special pleading. The argument lacks text-critical justification and fails to consider Jer 34:9, 14 (Das Bundesbuch (Ex 20,22–23,33): Studien zu seiner Entstehung und Theologie [BZAW 188; Berlin and New York: Walter de Gruyter, 1990], 307). More recent approaches, recognizing the nisbe, identify the construction as proleptic. In particular, Viberg, Symbols of Law, 84: The fact that the text of Exod 21:2 states that a slave was bought does not necessarily mean that the person was a slave before the so-called purchase. It should most likely be considered as a case of prolepsis, where the status to which the person is transferred is used by the author to describe him even before he became a slave. For a clear analysis, see Jackson, Wisdom-Laws, 81– 82.

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tient’s change of status from individual citizen to monarch. The same issue of proleptic designation applies to the formulations at Deut 17:14 –15. b) Marriage Law The formulation      can only mean, “When a man takes a new wife” (Deut 24:5). The hypothesis proposed by Van Seters for Exod 21:2 would require this woman to have already been a wife (and then also, by implication, someone else’s wife). Treating the indefinite effected object as an affected object leads to implausible results or, in this case, adultery. The activity signified by the technical use of the verb  effects a change in the legal status of the implicit patient: the woman who is “taken” as a wife. The verb denotes the act of consummation whereby the “woman” (affected object) becomes legally a “wife” (effected object). The fact that in Hebrew, the single term  can refer either to biology (“woman”) or to legal status (“wife”) only underscores this point.33 It is the technical force of the verb that establishes the semantic distinction between the two.

Verbs of Creation and Appointment in Contractual Legal Language Verbs of creation and appointment often define contractual or legal relationships. As already noted, such verbs are frequently ditransitive. Analyzing them in terms of the distinction between affected and effected object helps clarify the semantics involved, especially in cases where the transaction involves a change of title, ownership, or status. The legal action described by the verb (i.e., to appoint [someone as judge or king]; to marry [take a woman as wife]) entails a change in the legal status of the patient. As a result of the legal action, an individual acquires a new status. In such cases, the patient experiencing the change in status represents the affected object, while the new status itself (judge, king, wife) represents the effected object. The distinction between the two may not be grammatically marked, however. Indeed, since the prescriptive language of law tends to speak in generalities or universals, both the affected and the effected object may be indefinite. As a result, when the patient (affected 33 Nikolaus P. Bratsiotis, “ ,  ,” ThWAT 1:238 –252 (at 240) = TDOT 1:222– 235 (at 224 –25). Contrast Akkadian, which lexically distinguishes between the biological term, sinništum (“female” or “woman”), and the legal status of aššatum (“wife”). The latter, of course, is cognate to Hebrew  , which thus levels the two distinct Akkadian terms. This issue of comparative lexicography is overlooked by Bratsiotis.

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object) is elided as implicit, to focus upon the status change brought about by the verb, there will be no formal textual or grammatical markers to distinguish between the two types of verbal complement. That ambiguity gave rise to Van Seters’s confusing the patient (affected object) with the status change (effected object). In most cases, however, these ambiguities are more formal than semantic; they are easily resolved by the narrative or legal context and by common sense. The purchase of humans as chattels represents a special application of these rules. Whereas the purchase of livestock or property does not entail a change of status in the patient (but only a change of ownership), when the patient of the verb , “to purchase” or “to acquire” is human, special conditions arise. In some cases, the situation addressed may involve simple transfer of ownership of an already existing slave from one owner to another.34 In such circumstances, the law regulates change of title but not of status: the term for the patient, “slave,” remains an affected object. Elsewhere, however, change of status is precisely the issue. Frequently the narrative (Gen 37:27; 2 Kgs 4:1– 4), legal (Lev 25:39), and prophetic corpora (Amos 2:6; 8:6) of the Bible address a different situation: the sale of persons as slaves or chattel. There are various “triggers” for such sale. The most common is when, on account of financial destitution, a free person sells himself to another in order to work as a slave (Deut 15:12) or permits his or her children to be distrained by a creditor (2 Kgs 4:1–4). Alternatively, a father may sell his daughter to another man as a female-slave or concubine (Exod 21:7). Finally, a court may impose such sale as a legal sanction: as when a free man found guilty of theft and unable to repay it is sold by the court so as to compensate the victim (Exod 21:37 + 22:2b). In other contexts, however, the law regulates the patient’s change of status from free person to slave or chattel. Here the verb  works as a ditransitive verb of creation or appointment: to purchase PN as a slave. The patient purchased is the affected object; the new status of chattel that results from the legal transaction (the action of selling oneself or being sold by a third party, whether parent or court) represents the effected object. These ditransitive constructions may undergo the variations already described, which include elision of the affected object. Although formal ambiguities may arise, the narrative or legal context should consistently resolve the semantic issue, and clarify that the object of the verb is an effected object and represents the patient’s change in status as the main point of the law. Several examples warrant extended discussion because they help explain the semantics of the manumission law.

34 See for example Laws of Hammurabi §280 (“If a man should purchase another man’s slave or slave woman”). It is frequent in the Neo-Assyrian slave-sale agreements.

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1. The Double-Object Construction with the Verb  The Holiness Code includes a set of regulations addressing the question of who, other than the priests and their immediate families, are permitted to consume the sancta that are their prebend. In the course of stating a general prohibition and then making an exception, one of these regulations employs the construction associated with verbs of appointment. In this case, the verb () takes the double-object construction: No lay person may eat sacred food; neither may a priest’s resident hireling eat sacred food. But if a priest purchases a person as his chattel (  %   % ), he may eat of it; and those born into his household may eat 35 of his food. (Lev 22:10 –11)

The first object, indefinite, is the affected object: the person () who is purchased, and thus the patient that undergoes the change in status from free to indentured.35 The second object is effected and defines the new status of the patient as a result of the purchase. The cognate object construction reinforces this idea. In the bound phrase  %, “chattel” (lit., “thing acquired by purchase”), the nomen regens derives from the main verb of the clause.36 The law’s logic is transparent. Unlike the hired workers, the slave works as an unpaid laborer and lacks the resources to 35 Theophile Meek accurately recognizes the force of the Hebrew idiom in v. 11 as “but if a priest buys a slave.” His insight is modified here to render the double-object construction. His excellent Pentateuch translation is frequently overlooked; see idem, “The Book of Leviticus,” in The Complete Bible: An American Translation (ed. J. M. Powis Smith, Edgar J. Goodspeed et al.; Chicago: University of Chicago Press, 1939), 90 –117 (at 110). For the translation of v. 10 and discussion of the law concerning nonpriests eating sancta, see Jacob Milgrom, Leviticus 17–22: A New Translation with Introduction and Commentary (AB 3A; New York: Doubleday, 2000), 1844, 1860 –1863. His comment on the Hebrew formulation in v. 11, resorts to the awkward claim of a redundant apposition: “literally ‘purchases a person, the purchase of his money’ ” (1862). The alleged redundancy disappears once the ditransitive syntax of the verb is recognized. 36 The discussion at ThWAT 7:69–70 = TDOT 13:64 misses the key point: the application of the term designating “purchase by money as a chattel” to humans. Instead, the citation misleadingly refers only to “personal property (explicitly distinguished from . . . money . . .).” Separate from the semantic issue, there is an interesting point of historical linguistics that should also be noted. In Biblical Hebrew, this form of the substantive, as verbal noun, is relatively rare: it is attested only ten times, as opposed to fifteen for  " and seventy-four for  ! (statistics, ibid.). In Jewish Palestinian Aramaic, this form of the substantive serves as the standard term for “possession” or “ownership.” Thus %   (Gen 26:14) is rendered as % % (Tg. Neof. Gen 26:14); see Michael Sokoloff, A Dictionary of Jewish Palestinian Aramaic of the Byzantine Period (Ramat Gan: Bar Ilan University Press, 1990), 497. This form ( ) is common in the Babylonian corpus: see idem, A Dictionary of Jewish Babylonian Aramaic of the Talmudic and Geonic Periods (Ramat Gan: Bar Ilan University Press; Baltimore: John Hopkins University Press, 2002), 1029. Neither volume attests the forms  " or  !.

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purchase food independently. He is thus fully dependent upon the priest, who must share his prebends. 2. The Egyptians Sell Themselves to Joseph as Slaves The narrative of Joseph’s role as vizier over Egypt offers a tri-partite analysis of the stages whereby individuals are forced into wage-slavery or indenture. In the first year of the famine, the Egyptians purchase the rations earlier gathered up by Joseph in storehouses (Gen 47:13–14). Once their money is exhausted, however, the people have no choice in the second year of the famine but to barter their livestock as the price exacted by Joseph for giving them food (47:15–17; note the effective use of beth pretii, vv. 16–17). By the third year of the famine, the people are left with neither money nor cattle. Desperate, they offer all that they have left:

                               (19)                     % We shall not hide from [it] from my master but37 that the money is spent and the stock of cattle [already] are my master’s. Nothing remains at the disposal of my master except for our bodies and our land. (19) Why should we die before your eyes, both we and our land? Purchase us and our land in exchange for food, so that38 we may become—we and our land—slaves to Pharaoh!39 Grant seed so that we may live and not die! As for the land, let it not become desolate! (Gen 47:18 –19)

In the continuation, Joseph complies with their request in chiastic order. He first purchases “the entire land of Egypt for Pharaoh” (v. 20). Then, in the following verse (v. 21), he reduces the people to bondage, as is evident

37

See BDB, 475 (2b). The purpose clause construction is marked by the initial imperative followed by the non-converted imperfect; see IBHS, 575 (§34.5.2) and 650 (§39.2.2). The syntax is overlooked by many translations and construed instead simply as “and,” which misses the logical connection between the clauses (thus Ephraim A. Speiser, Genesis [AB 1; New York: Doubleday, 1964], 349; similarly, Robert Alter, The Five Books of Moses: A Translation with Commentary [New York: W. W. Norton & Co., 2004], 275). 39 Interestingly in this case, the grammatical subject is also the patient that undergoes a change of status: “we [initial status of subject] . . . may become . . . slaves [final status].” Analyzing this type of change of status predication (providing different examples), see Harald Schweizer, Metaphorische Grammatik: Wege zur Integration von Grammatik und Textinterpretation in der Exegese (Arbeiten zu Text und Sprache im Alten Testament 15; St. Ottilien: EOS, 1981), 132. 38

5. The “Effected Object” in Contractual Legal Language

from the Septuagint and Samaritan Pentateuch, in light of which the should be restored:40 Reading Hebrew 

     

As for the people, he transferred them into the cities (MT = Tg. Onq., Tg. Ps.-J., Tg. Neof.; similarly Syriac)

109 MT

Reading Hebrew  katedoulwvsato aujtw'/ eij" pai'da" he subjugated it to him as slaves (LXX)

      As for the people, he indentured them as slaves (Samaritan Pentateuch)41 FIGURE

5.1: The Variant Textual Traditions of Gen 47:21

The hipil verb is ditransitive. The patient (literally “it,” which refers back to the collective noun, “the people”) is the affected object. Their new status is the oblique effected object: “slaves.” The people were not previously slaves. They become so only through the purchase agreement in which they surrender their land and their autonomy “at the price of ” or “in exchange for” (-) the seed (v. 19). 3. Application to the Manumission Law of the Covenant Code The whole thrust of the manumission law of the Covenant Code is to address the consequences of the change of status that arise from indenture. It seeks to restore the purchased person to his original status quo ante once the term of service has been completed. The law stipulates that the status 40

The MT makes no sense: the transfer of an entire rural population into cities at a time of agricultural need conforms neither to the requirements of the narrative nor to logic; see John Skinner, A Critical and Exegetical Commentary on Genesis (2d ed.; ICC; Edinburgh: T. & T. Clark, 1930), 500. The textual disturbance seems to arise from the confusion of the two graphically similar consonants (/). See Emanuel Tov, The TextCritical Use of the Septuagint in Biblical Research (2d ed.; Jerusalem Biblical Studies 8; Jerusalem: Simor, 1997), 136; similarly, idem, Textual Criticism of the Hebrew Bible (2d rev. ed.; Minneapolis: Fortress; Assen: Royal Van Gorcum, 2001), 92, 256. The retroversion is commonly proposed. See BHK 3; BHS; and Speiser, Genesis, 352. 41 Abraham Tal, The Samaritan Pentateuch: Edited According to Ms 6 (C) of the Shekhem Synagogue (Tel Aviv: Tel Aviv University, Chaim Rosenberg School of Jewish Studies, 1994), 49.

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change in question is provisional and temporary. The patient’s normal status is restored upon conclusion of the purchase agreement:   , “He shall go out free, without payment.” Indeed, the entire focus of the law is upon the matter of the status change in such a way as to distinguish between the intrinsic freedom of the patient and his contingent status. If the person purchased were already a slave (an affected object), the elaborate procedure for permanent indenture, in which the slave must abjure his right of restoration to his original status, becomes incoherent:

        (5)               (6)               

(5) But should the slave affirm, “I love my master, my wife, and my children: I will not go out free,” (6) then his master shall bring him to God, and he shall bring him to the door or the doorpost; and his master shall bore his ear through with an awl; and he shall serve him permanently.

FIGURE 5.2 The Judicial Oath Necessary to Elect to Become a Permanent Slave (Exod 21:5– 6)

Someone who was already a slave prior to purchase would have no right to manumission, let alone the obligation formally to forego that right in order to elect to remain a slave.

Conclusions Attention to the syntax of Biblical Hebrew and to contractual legal language requires expanding or modifying several assumptions of traditional grammars. The “effected” object should not be restricted to a simple cognate object construction (figura etymologica) of the verb. Instead, it should be recognized within the ditransitive construction commonly associated with verbs of naming or appointment. In the context of contractual legal language, the effected object designates the status of a semantic patient appointed as king or judge or taken as a wife. In cases of indenture or judicially-enforced wage-slave arrangements, the effected object designates the new status of a free person who enters into a purchase agreement to work as a slave or is sold as a slave by a third party. The variation should also be recognized, whereby the affected object is elided because it is implicit. In this construction, only the effected object is retained, so as to stress the status change. As the manumission law of the Covenant Code

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makes clear, such elisions are common in the contractual legal language of the Hebrew Bible. This study establishes that the Hebrew verb  in the sense of “purchase” is often ditransitive. When the verb refers to a contractual or legal transaction, it may take both an affected and an effected grammatical object. When the affected object is a human being (when a human is being treated as a commodity that can be sold), the effected object logically designates the corresponding change of status: from free to slave (in the case of the texts concerned with the purchase of humans as slaves) or from woman to wife. The verbal action (the purchase) effects the change of status: the purchase of the human (affected object) brings about the new status:  as effected object. While some texts preserve the double-object construction, others employ a single object alongside an oblique object, whereby the status change or new title is marked with beth essentiae or lamed of product. Variant constructions elide the affected object and focus upon the effected object (of status): the . The manumission law of the Covenant Code represents a case of ellipsis of the affected object: Protasis of Slave Purchase Law with Type of Object:

 %    %     

Lev 22:11 Exod 21:2 Lev 22:11

But if a priest purchases a person as his chattel slave

Exod 21:2 FIGURE

If you purchase

a Hebrew slave

Affected Effected +

+

—

+

+

+

—

+

5.3: Ellipsis of the Affected Object in the Protasis of Exod 21:2

Figure 5.3 shows the parallel construction of the two legal protases, each of which governs the purchase of slaves and employs the verb . The full double-object construction is evident in Lev 22:11 (see the discussion above at pp. 107–8). The “person” () purchased by the priest is the patient or affected object. The status term, “[as] his chattel slave” ( %), is the effected object or status term. The evidence of this text strongly suggests that there has been an ellipsis of the affected object in the Covenant Code protasis. The latter retains only the effected object that designates the status ( ), while eliding the affected object. Restricting the protasis to refer only to the purchase of someone who was already a slave is inappropriate on both semantic and legal grounds. The manumission law has for its focus the patient’s change of status: from free to bound. Restoration of the slave’s original freedom is here the legal norm.

6. Textual Criticism, Assyriology, and the History of Interpretation: Deuteronomy 13:7a as a Test Case in Method Nothing could be clearer than the burden of evidence calling for the emendation of the Masoretic Text (MT) of Deut 13:7. That evidence includes not simply the Septuagint, PeshiÅta, and Samaritan Pentateuch but the attestation of the Septuagint (LXX) reading in Hebrew among the biblical manuscripts of the Dead Sea Scrolls. The latter, in particular, seem decisive. They strongly suggest that the LXX translator, working in mid-thirdcentury B.C.E. Alexandria, must have based his Greek rendering directly on a Hebrew Vorlage. Chronologically speaking, the argument for the originality, priority, and superiority of the LXX variant seems irrefutable. Most important, with the biblical manuscripts preserved at Wadi Qumran, there is objective evidence for the antiquity, in Hebrew, of that variant: a manuscript whose “typical Hasmonean book hand” suggests a dating of about 125 B.C.E.1 The particular case of this reading, then, seems consistent with the more general impression that the LXX reflects an earlier stage of the biblical text than does the MT. Specifically, the earliest fragments of the a LXX date as early as the mid- to late-second century B.C.E.: 4QLXXLev , 4QLXXNum, and two Greek papyri (P. Fouad 266 and P. Rylands Gk. 458).2 More or less complete LXX manuscripts are extant from the fourth (Vaticanus, Sinaiticus) and fifth (Alexandrinus) centuries C.E. By contrast, the MT seems to represent a late witness. Its earliest manuscripts date 1

Sidnie Ann White, A Critical Edition of Seven Manuscripts of Deuteronomy: 4QDt a, 4QDt c, 4QDt d, 4QDt f, 4QDt g, 4QDt i, and 4QDt n (Ann Arbor, MI: University Microfilms International, 1988), 20. The reconstruction of the text (based upon the join of frgs. 22–23) and the text-critical issue are discussed on pp. 62– 63. See also eadem, “Special Features of Four Biblical Manuscripts from Cave IV, Qumran: 4QDta, 4QDtc, 4QDtd, and 4QDtg,” RevQ 57–58 (1991): 157– 67, esp. 160 – 62. For the official edition, see eadem (as Sidnie White Crawford), “4QDeutc,” in Qumran Cave 4 (ed. Eugene Ulrich et al.; DJD 14; Oxford: Clarendon, 1995), 23. I am grateful to Prof. Crawford for her courteous response via email to several questions concerning the restoration of the reading. 2 Emanuel Tov, Textual Criticism of the Hebrew Bible (2d ed.; Minneapolis: Fortress; Assen: Royal Van Gorcum, 2001), 136 – 39.

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nearly a millennium and a half after the composition of Deuteronomy: the Aleppo Codex (first half of the tenth century C.E.) and Leningrad Codex B19A (1009 C.E.). Even its earliest indirect attestations are relatively late: the Greek translations, Theodotion, Aquila, and Symmachus, which “correct” the LXX toward the MT and date to the second century C.E.3 The purpose of this chapter is to argue that, despite the apparently overwhelming support for the LXX variant, it is the “late” witness of the MT that, uniquely, preserves the chronologically prior reading. The way scholars have sought to interpret the evidence of the versions in this example raises a series of larger questions about the theoretical and methodological assumptions of biblical textual criticism. On that basis, Deut 13:7 provides a valuable test case to reflect on the discipline itself. The separation of textual criticism from exegesis—as if the former were an ancillary “lower criticism” in relation to a purportedly “higher criticism”—is untenable. Equally indefensible is the separation of the full spectrum of biblical studies from Assyriology, whether in matters of textual criticism or exegesis. The understanding of Deut 13:7—both the text-critical crux and the meaning of the passage—requires recourse to Akkadian on the one hand and to the history of Second Temple biblical interpretation on the other.

The Literary Context of the Crux: The Apostasy Series of Deuteronomy 13 Deuteronomy 13 presents an ordered series of three laws, carefully arranged to present challenging test cases that vividly depict a fundamental conflict of loyalty for the addressee. The laws deal consistently with apostasy. The first two laws involve an incitement to worship other gods that originates with a prophet or oneiromancer (Deut 13:2– 6) or with a family member, spouse, or close friend (13:7–12). In each case, the addressee must express unconditional commitment to Yahweh by ensuring that the inciter is executed, even taking the law into his own hands by summarily executing the family member or friend (13:9 –10). The demand for loyalty 3 More accurately, “Theodotion” goes back to the mid-first century B.C.E., since fragments of this revision have been found at Naal ever, and the revision is quoted in sources of the first centuries B.C.E. and C.E.—two centuries before the historical Theodotion, who lived in the late second century C.E.! Theodotion must have compiled or revised the revision, and so his name was attached to it anachronistically. Aquila, the most literal of the Greek versions, dates to about 125 C.E. Symmachus, which uses more idiomatic Greek rather than slavishly following Hebrew syntax, dates to the end of the second or the beginning of the third century C.E. For a valuable analysis, see Tov, Textual Criticism, 145– 46, 170.

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is equally stringent in the third case, which depicts the successful conversion to apostasy of an entire city. The law requires that the entire population of the city, together with its cattle and property, be placed under the Deuteronomic ban and destroyed (13:13–18), just as if its population were Canaanite rather than Israelite (see Deut 7:1–6, 24–26; 20:16– 18). The particular challenge is that each law is set up to present an extreme case whereby the incitement comes from sources that, under normal circumstances, would command the addressee’s trust. The prophet or oneiromancer would, by definition, possess public credibility and religious authority. In the private sphere, the affective ties of love to a close family member, beloved wife, or intimate friend make the addressee vulnerable to their incitement, while also making it unlikely that one would take stringent action against them for sedition or heresy. And in the sphere of clan life, little could be more horrifying than to “enter into battle against our kin” (Judg 20:23, 28). The focus of this study is the second case, whose protasis reads:

          %    

      If your brother, the son of your mother, or your son or your daughter or the wife of your bosom or the friend who is as your own self should secretly incite you, saying . . . (Deut 13:7a)

The apodosis requires that the addressee take the law into his own hands. He must systematically extinguish all ties of affection, trust, and mercy toward the inciter and immediately implement the extreme penalty of summary execution (vv. 9–10).4 The protasis, with its detailed list, thus rhetorically underscores the severity of the test case by identifying five of the closest possible affective ties: brother, son or daughter, wife, friend. The very intimacy of the relation in question is, of course, precisely the difficulty: commitment to Yahweh requires that the addressee execute his own flesh and blood, beloved wife, or trusted friend. That protasis contains the text-critical crux at issue. The MT identifies only one male sibling relation:  %  , “your brother, the son of your mother.” Surprisingly, it omits the expected symmetrical continuation: “or the son of your father.” Whereas here there is only a single relational term, which is appositionally defined, the continuation provides two balanced male/female pairs: /% (son/daughter) and  / (friend/wife). In 4 See further Bernard M. Levinson, “ ‘But You Shall Surely Kill Him!’: The TextCritical and Neo-Assyrian Evidence for MT Deut 13:10,” in Bundesdokument und Gesetz: Studien zum Deuteronomium (ed. Georg Braulik; Herders Biblische Studien 4; Freiburg: Herder, 1995), 37– 63; repr., ch. 8 infra.

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contrast to the imbalance of the MT, the LXX preserves a variant that provides the expected symmetry: oJ ajdelfov" sou ejk patrov" sou h] ejk mhtrov" sou “your brother from your father or from your mother.”5 The Samaritan Pentateuch reflects the same plus:  %   %  , “your brother, the son of your father or the son of your mother.”6 Two later witnesses are of less direct bearing on the text-critical analysis. The Syriac PeshiÅta, which often depends on the LXX tradition, does so here as well and represents the variant; the Vulgate, conversely, aligns with the MT, again because of the shared tradition.7

The History of the Discussion The text-critical adoption of this plus has long been urged. Johannes Hempel recommended its restoration in his widely influential editions of the Hebrew text of Deuteronomy, first as probable in BHK 3 and then without reservation in BHS.8 This approach has consequently found widespread acceptance in standard Bible translations and has nearly won the status of a scholarly consensus. La Sainte Bible incorporates the variant into its translation—“Si ton frère, fils de ton père ou fils de ta mère . . .”—while also providing a note to indicate “avec sam. et grec.”9 Ironically, the Jerusalem Bible, which is based on that work and retains the variant in the text—“If your brother, the son of your father or of your mother . . .”—deletes the

5 John William Wevers, ed., Deuteronomium (Septuaginta 3.2; Göttingen: Vandenhoeck & Ruprecht, 1977), 187. In the Hexapla, this reading was placed “under the obelus to indicate its omission from the MT”; see John William Wevers, Notes on the Greek Text of Deuteronomy (SBLSCS 39; Atlanta: Scholars Press, 1995), 231. 6 See August Freiherr von Gall, ed., Der hebräische Pentateuch der Samaritaner (Giessen: Töpelmann, 1918), 393; and Abraham Tal, The Samaritan Pentateuch: Edited according to MS 6 (C) of the Shekhem Synagogue (Texts and Studies in the Hebrew Language and Related Subjects 8; Tel-Aviv: Chaim Rosenberg School for Jewish Studies, Tel-Aviv University, 1994), 190. 7 For the Syriac, see W. M. van Vliet et al., eds., “Deuteronomy,” in The Old Testament in Syriac according to the PeshiÅta Version, I/2 Leviticus, Numbers, and Deuteronomy, and II/1b Joshua (ed. PeshiÅta Institute; Leiden: E. J. Brill, 1991), 1– 99 (at 40). The Vulgate reading is “frater tuus filius matris tuae”; see Bonifatius Fischer et al., eds., Biblia Sacra iuxta Vulgatam versionem (3d ed.; Stuttgart: Deutsche Bibelgesellschaft, 1983), 254. 8 See R. Kittel, ed., Biblia Hebraica (3d ed.; Stuttgart: Württembergische Bibelanstalt, 1937), 285; and K. Elliger and W. Rudolph, eds., Biblia Hebraica Stuttgartensia (Stuttgart: Deutsche Bibelgesellschaft, 1987), 310. 9 H. Cazelles, ed., “Deutéronome,” in La Sainte Bible traduite en français sous la direction de L’École Biblique de Jérusalem (Paris: Cerf, 1956), 190.

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note concerning its origin.10 The New English Bible similarly embeds the plus without noting the departure from the Hebrew.11 Although the variant is not represented in the Revised Standard Version (1952), it is accepted into the New Revised Standard Version (1989), which does provide a note to acknowledge the dependence on the LXX: “If anyone secretly entices you—even if it is your brother, your father’s son or your mother’s son . . . .”12 The Jewish Publication Society’s Tanakh hedges on the matter. A footnote acknowledges the Samaritan plus but neither evaluates its significance nor mentions its attestation in the LXX.13 Conversely, in a surprising omission, the valuable La Bible d’Alexandrie here overlooks the divergence of the LXX from the MT.14 All of the conceivable positions have been proposed within the literature. Many scholars have defended the originality of the MT and regarded the variant as a secondary expansion of it.15 Several scholars have partially 10

The Jerusalem Bible: Reader’s Edition (Garden City, NY: Doubleday, 1968), 203. The New English Bible with the Apocrypha (New York: Cambridge University Press, 1971), 211. 12 See Wayne A. Meeks, ed., The HarperCollins Study Bible: New Revised Standard Version (New York: HarperCollins, 1993), 290 (emphasis added). It is unclear why, in opting for the LXX against the MT, the NRSV editors overlooked or rejected the preference for the MT (explicitly against the NEB and JB) specified by Dominique Barthélemy et al., eds., Preliminary and Interim Report on the Hebrew Old Testament Text Project (5 vols.; 2d rev. ed.; New York: United Bible Societies, 1979–1980), 1:283. 13 See Tanakh: The Holy Scriptures. The New JPS Translation according to the Traditional Hebrew Text (Philadelphia: Jewish Publication Society, 1988), 300. There is no discussion of this case in H. M. Orlinsky, Notes on the New Translation of the Torah (Philadelphia: Jewish Publication Society, 1970), 250. 14 Cécile Dogniez and Marguerite Harl, eds., La Bible d’ Alexandrie, vol. 5: Le Deutéronome (Paris: Cerf, 1992), 201. 15 These include Zacharias Frankel, Ueber den Einfluss der palästinischen Exegese auf die alexandrinische Hermeneutik (Leipzig: Joh. Ambr. Barth, 1851; republished, Westmead, England: Gregg International, 1972), 223; August Dillmann, Die Bücher Numeri, Deuteronomium und Josua (Kurzgefasstes exegetisches Handbuch zum Alten Testament; 2d ed.; Leipzig: Hirzel, 1886), 301; Eduard König, Das Deuteronomium (Kommentar zum Alten Testament; Leipzig: A. Deichert/Werner Scholl, 1917), 123, who provides the most detailed analysis; Karl Marti, “Das fünfte Buch Mose oder Deuteronomium,” in Die Heilige Schrift des Alten Testaments (ed. Alfred Bertholet and Emil Kautzsch; 2 vols.; 4th ed.; Tübingen: J. C. B. Mohr [Paul Siebeck], 1922–1923), 1:258 – 327 (at 284); Max Löhr, Das Deuteronomium (Untersuchungen zum Hexateuchproblem, II) (Schriften der Königsberger Gelehrten Gesellschaft, Geisteswissenschaftliche Klasse 1.6; Berlin: Deutsche Verlagsgesellschaft für Politik und Geschichte, 1925), 163–209 (at 174); Friedrich Horst, “Das Privilegrecht Jahwes: Rechtsgeschichtliche Untersuchungen zum Deuteronomium” (1930), repr. in idem, Gottes Recht: Gesammelte Studien zum Recht im Alten Testament: Aus Anlaß der Vollendung seines 65. Lebensjahres (ed. H. W. Wolff; TB 12; Munich: Kaiser, 1961), 17–154 (at 35 n. 1); Moshe Weinfeld, Deuteronomy and the Deuteronomic School (Oxford: Clarendon, 1972), 98 n. 5; Paul E. Dion, 11

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sidestepped the text-critical question by reconstructing an original Hebrew text that, they maintain, is reflected by neither the MT nor the LXX.16 For more than a century, however, important arguments have been made on behalf of the LXX.17 That position achieved near normative status through its incorporation, as already noted, into the standard scholarly Bibles: Biblia Hebraica and Biblia Hebraica Stuttgartensia.18 Particularly significant is that the two major scholars of the LXX of Deuteronomy independently agree that the Greek translator here followed a Hebrew Vorlage different from that preserved by the MT. As editor of the Göttingen Septuagint, John William Wevers is avowedly circumspect in his approach to textual variants; he is reluctant to assume the translator’s reliance on a parent text that differs from that reflected by the MT.19 That conservative methodology makes his acceptance of the variant here all the more noteworthy.20 Anneli Aejmelaeus represents a different methodological orientation and is more inclined to accept the variants as pointing to actual

“Deuteronomy 13: The Suppression of Alien Religious Propaganda in Israel during the Late Monarchical Era,” in Law and Ideology in Monarchic Israel (ed. Baruch Halpern and Deborah W. Hobson; JSOTSup 124; Sheffield: JSOT Press, 1991), 147–216 (at 153); Eduard Nielsen, Deuteronomium (HAT 1.6; Tübingen: Mohr Siebeck, 1995), 144; Jeffrey H. Tigay, The JPS Torah Commentary: Deuteronomy (Philadelphia/Jerusalem: Jewish Publication Society, 1996), 132, 367 n. 26; and Juha Pakkala, Intolerant Monolatry in the Deuteronomistic History (Publications of the Finnish Exegetical Society 76; Göttingen: Vandenhoeck & Ruprecht, 1999), 21. 16 See Gottfried Seitz, Redaktionsgeschichtliche Studien zum Deuteronomium (BWANT 93; Stuttgart: Kohlhammer, 1971), 144– 45 (n. 160), 150 –51. His position is followed by A. D. H. Mayes, Deuteronomy (NCB; London: Marshall, Morgan & Scott, 1979), 234. For a detailed analysis of this position, please see “The Evidence of Comparative Semitics and Historical Linguistics” below (at 125–34). 17 Carl Steuernagel, Das Deuteronomium übersetzt und erklärt (Göttinger Handkommentar zum Alten Testament; Göttingen: Vandenhoeck & Ruprecht, 1899), 50; similarly, but without the justification, in the second edition of 1923 (p. 103). See also Alfred Bertholet, Deuteronomium (KHC 5; Leipzig/Tübingen: Mohr, 1899), 43; Antti Filemon Puukko, Das Deuteronomium: Eine literarkritische Untersuchung (BWAT 5; Leipzig: Hinrichs, 1910), 253; and further Lothar Perlitt, “ ‘Ein einzig Volk von Brüdern’: Zur deuteronomischen Herkunft der biblischen Bezeichnung ‘Bruder,’ ” in idem, Deuteronomium-Studien (FAT 8; Tübingen: J. C. B. Mohr [Paul Siebeck], 1994), 50 –73 (at 53–54). 18 In response to the original publication of this chapter, Carmel McCarthy accepts the plus of the LXX, 4QDeutc, and the Samaritan as secondarily derived from the MT and thus rejects the textual emendation (Deuteronomy [BHQ 5; Stuttgart: Deutsche Bibelgesellschaft, 2007], 91*). 19 See Wevers, Notes on the Greek Text of Deuteronomy, xi–xii; and idem, “Apologia pro Vita Mea: Reflections on a Career in Septuagint Studies,” BIOSCS 32 (1999): 65– 96 (at 93). 20 Wevers, Greek Text of Deuteronomy, 231: “following Sam rather than MT.”

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Hebrew readings that diverge from the textual tradition of the MT.21 In a rich article on the Denkarbeit that underlies the LXX, she affirms the translator’s fidelity to his Hebrew parent text, which Alexandrian Judaism regarded as Torah.22 This perspective, which builds on the pioneering contributions of Zacharias Frankel and nineteenth-century Wissenschaft des Judentums, provides welcome recognition of the extent to which the 23 LXX also represents a prodigious hermeneutical accomplishment. Given the scrupulous attention paid to the Torah by the translator and his community, textual variants may often be regarded as deriving “aus einer sehr frühen, vormasoretischen Phase der Textgeschichte.”24 The case of Deut 13:7a serves as but one of a series of parade examples, culled from the 21 Contrast Wevers’s careful analysis of the crux at MT Deut 13:10 = LXX Deut 13:9, where he derives the LXX variant from the MT (Greek Text of Deuteronomy, 232–33), with the sharp rejection of that model by Aejmelaeus, who instead understands the LXX translator faithfully to reproduce a Hebrew Vorlage (Anneli Aejmelaeus, “Die Septuaginta des Deuteronomiums,” in Das Deuteronomium und seine Querbeziehungen [ed. Timo Veijola; Schriften der Finnischen Exegetischen Gesellschaft 62; Göttingen: Vandenhoeck & Ruprecht, 1996], 1–22 [at 19–20 and 21 nn. 68– 69] [For reprint, see Bibliography]). On the variant in question, see Levinson, “But You Shall Surely Kill Him!” (ch. 8 infra) (against which Aejmelaeus argues). 22 Aejmelaeus, “Septuaginta,” 1, 3. 23 Ibid., 1 n. 3, citing Frankel, Einfluss der palästinischen Exegese (see n. 15 above). With his command of rabbinic exegesis controlled by historical-critical methodology, Frankel helped open a new chapter in the study of the LXX, one signaled by the book’s opening discussion: “Liegt hier nur eine Uebersetzung oder auch zugleich ein Religionswerk vor?” (pp. 1–2). This approach to the LXX as a translation that also, in places, embeds Second Temple exegesis, is carried further in the overlooked work of Leo Prijs: “So darf die LXX in ihrer Beziehung zum hebräischen Text oft nur von innen her, aus ihrem eigenen Geist heraus, nicht durch mechanische, rein äusserliche Vergleichung mit dem hebräischen Text verstanden werden” (Jüdische Tradition in der Septuaginta [Leiden: E. J. Brill, 1948; repr., Hildesheim: Georg Olms, 1987], xvi). Given the emphasis by Aejmelaeus on how Alexandrian Jewish hermeneutics mediated the biblical text to its Alexandrian translators, it becomes unclear whether her analysis fully takes this model’s significance into account. The text-critical alternatives that are considered—whether “der Übersetzer seiner Vorlage treu gewesen ist . . . [oder] den Text frei gestaltet hat” (Aejmelaeus, “Septuaginta,” 16)—impose a false dichotomy upon the evidence. Conceivably, the committed translator is true to the text only when he or she renders it meaningfully: as it is taught, interpreted, and understood within that religious community. What constitutes a “true” rendering of a text for the Second Temple reader, interpreter, or translator of scripture must surely be judged by criteria different from those employed by the modern philologist. 24 Aejmelaeus, “Septuaginta,” 6. Elsewhere, Aejmelaeus also stresses that the LXX had been “translated well before the fixing of the Masoretic tradition.” See Aejmelaeus, “What Can We Know about the Hebrew Vorlage of the Septuagint?” ZAW 99 (1987): 58– 89; republished in and cited according to eadem, On the Trail of the Septuagint Translators: Collected Essays (Revised and expanded edition; Contributions to Biblical Exegesis and Theology 50; Leuven: Peeters, 2007), 71–106 (at 105).

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apparatus of BHS, where, she argues, the translator preserves such a nonMasoretic variant text, one also reflected in the Samaritan or at Qumran.25 With the discovery and publication of the Dead Sea Scrolls, the arguments in favor of the textual variant have won renewed strength. The evidence provided by 4QDeutc 13:7 and the indirect witness of 11QTemple 54:19 attests a Hebrew textual tradition that is consistent with the LXX plus and that arguably provides its Vorlage. On that basis, the restoration of the plus to the MT has been urged as incontrovertible, given the allegedly decisive evidence provided by the Qumran manuscripts in question.26 The acceptance of the variant has become so second nature that several scholars have confused it with the MT, citing the latter as if it included the reference to the half-brother, but without a text-critical note to indicate whether the emendation was intentional.27 The purpose of this chapter is systematically to assess the evidence for the originality of the textual variant represented by the LXX, the SP, and 4QDeutc. Here it is important methodologically to distinguish between two kinds of questions. The normal focus of textual critics is specifically to analyze whether a LXX reading, where it diverges from the MT, is based on an actual Hebrew parent text: whether the Septuagint translator remained

25 Aejmelaeus, “Septuaginta,” 17–18. Given the use of BHS as source, the attestation of the variant by 4QDeutc is not noted. 26 Timo Veijola, “Wahrheit und Intoleranz nach Deuteronomium 13,” ZTK 92 (1995): 287–314 (at 303). [For the reprint of this title, please see the Bibliography.] 27 In a meticulous analysis of the literary history of Deut 13, Eckart Otto translates MT Deut 13:7 according to the LXX and SP (“Wenn . . . dein Bruder, der Sohn deines Vaters, oder der Sohn deiner Mutter, . . .”), without noting or discussing this deviation from the MT. See his “Treueid und Gesetz: Die Ursprünge des Deuteronomiums im Horizont neuassyrischen Vertragsrechts,” ZABR 2 (1996): 1–52 (at 15, 25, 33 [as translation of MT, given on facing page], and 43). Identically, idem, “Die Ursprünge der Bundestheologie im Alten Testament und im Alten Orient,” ZABR 4 (1998): 1– 84 (at 38); and idem, Das Deuteronomium: Politische Theologie und Rechtsreform in Juda und Assyrien (BZAW 284; Berlin: de Gruyter, 1999), 41, 57, and 67. Similarly confusing the MT and the LXX is Martti Nissinen, “Falsche Prophetie in neuassyrischer und deuteronomistischer Darstellung,” in Das Deuteronomium und seine Querbeziehungen, ed. Timo Veijola, 172– 95 (at 175). While recognizing importantly that both the treaty literature and Deut 13:7 stress the most intimate relationships, Nissinen here overlooks the distinction between the two textual versions. The MT (which he unintentionally conflates with the LXX variant) properly supports his larger thesis and is consistent with the NeoAssyrian material; the LXX (which he actually cites) compromises his thesis and dissolves the focus on the intimate sibling relation. Independently demonstrating the focus of Deut 13:7 on intimacy and the connection to the Neo-Assyrian treaties, see Bernard M. Levinson, “Recovering the Lost Original Meaning of     (Deuteronomy 13:9),” JBL 115 (1996): 601–20, esp. 614 –17; repr., ch. 7 infra (at 159– 63).

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“treu” to a Hebrew Vorlage or was “frei” in his rendering.28 Only so—only if it witnesses a Hebrew Vorlage—does the reading preserve a true textual variant: a Hebrew reading that diverges from the MT. Otherwise the reading represents nothing more than the free invention or exegetical activity of the translator. When both Wevers and Aejmelaeus agree that the LXX plus Deut 13:7(6)a derives from such a parent text, and is independent of the MT, that is their common focus. The reflections of that plus in Samaritan and in Hebrew at Qumran would seem conclusive. Another question has to be asked that seems to have been overlooked. Even granting the existence of a non-Masoretic Hebrew Vorlage of the LXX variant, does that Vorlage offer access to the “vormasoretische Phase der Textgeschichte?”29 Does ‘non-Masoretic’ so directly translate into ‘pre-Masoretic’ and point to a textual tradition that antedates the one witnessed by the MT? After all, “just because they are old readings does not mean that they are automatically better readings. . . .”30 The argument here is that the attestation of a Hebrew text corresponding to a LXX variant does not and should not suffice to determine the originality of that variant. The issue is rather how to understand and interpret the quality, meaningfulness, and originality of the variant readings relative to one another. Although the c LXX, SP, and 4QDeut point clearly to an ancient non-Masoretic Hebrew Vorlage, that tradition is secondary. It derives from and depends upon the textual tradition witnessed by the MT.

The Evidence of Qumran Despite being invoked as providing all but objective support for the originality of the LXX plus, the Qumran evidence is much more problematic than has previously been recognized. There are two witnesses in question, the direct one of the biblical manuscript (4QDeutc) and the indirect one of the Temple Scroll. 4QDeutc From the time of its initial publication, first as a dissertation and then in the official edition, the correspondence of the restored fragments to the

28

Aejmelaeus, “Septuaginta,” 16. Ibid., 6 (emphasis added). 30 Wevers, “Apologia pro Vita Mea,” 93. 29

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variant has been recognized.31 On that basis, the emendation of the MT has been urged, a position that has been taken up more broadly by textual critics and biblical scholars. The evidence is as follows, based on the join of the top lines of frgs. 22 and 23:

LXX

4QDeutc 13:7

[ ]   & [ %  ]& [% ]

Frg. 23 Courtesy Israel Antiquities Authority FIGURE

Frg. 22 Courtesy Israel Antiquities Authority

6.1: 4QDeutc 13:7

On its own grounds, however, 4QDeutc proves an unreliable witness. On the one hand, frg. 22 is taken as providing evidence in support of the LXX plus because it seems to attest the reading  (note the very incomplete preservation of the final two consonants and the only partial preservation of the first two).32 On the other hand, the very same line (following the

31

See Crawford, “4QDeutc,” 23 and plate IV (cited in n. 1 above). Note that the reproduction of frgs. 22 and 23 in DJD 14 is not of high quality. The photographs that follow were provided to the author by the Israel Antiquities Authority and are used by permission. 32 At my request, the editor of the official edition checked the photographs to confirm the reading  against the possibility of MT  . There were two considerations. (1) The consonant  is almost certain. Although its head is missing, the letter in frg. 22 shows the squatter vertical and longer base stroke that characterize  rather than medial  in 4QDeutc. (2) Spacing considerations suggest that the first line would be shorter than average for 4QDeutc if it followed the MT; conversely, there is room for the longer

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join) continues with . . .     , “or your son or the wife of . . .” (frg. 23). It thus omits the essential alternative   , “or your daughter,” attested by all of the other versions: 4QDeutc Deut 13:7 MT, LXX, SP, Syriac, Targum, Vulgate

           

Correctly noting the omission of the reference to the daughter, the editor of the official edition requires its restoration and thus here accepts the superiority of the witness provided by the MT.33 The reliability of 4QDeutc as a textual witness is, as a result, extremely problematic. Within the space of a couple words, the witness of Qumran both corrects the MT and must be corrected by it, both permits the restoration of a haplography and itself requires restoration, both preserves a reliable Hebrew Vorlage and deviates from it. Elijah’s challenge to Israel, assembled at Mount Carmel, could not be more apt: “How long will you go limping with two different opinions? If Yahweh is God, follow him; but if Baal, then follow him” (1 Kgs 18:21). Sound method is compromised by citing the plus in isolation from its immediate literary context.34 The ostensibly objective evidence is hardly that. 11QTemple 54:19 Here again the evidence is at best ambiguous. On the one hand, this reuse of the biblical text provides clear Hebrew attestation of the LXX plus:35

   %    %            On the other hand, the larger context points to linguistic updating and redactional revision as central to the reuse of the biblical material. The author has not retained the older casuistic protasis marker  (“if ”) employed by Deuteronomy.35That marker is ancient; it corresponds to Ugarireading of the LXX and the SP. I am grateful to Professor Sidnie White Crawford for this generous assistance (email communication, November 8, 1999). 33 White, Critical Edition, 63 (see n. 1 above): “4Q has suffered haplography owing to homoioteleuton ( – ).” 34 Overlooking the minus is Veijola, “Deuteronomium 13,” 303. Contrast the valuable citation of both plus and minus in Martin Abegg Jr., Peter Flint, and Eugene Ulrich, eds., The Dead Sea Scrolls Bible (San Francisco: HarperSanFrancisco, 1999), 167. 35 See Yigael Yadin, The Temple Scroll (3 vols.; Jerusalem: Israel Exploration Society, 1977–1983), 2:245; and Elisha Qimron, The Temple Scroll: A Critical Edition with Extensive Reconstructions (Beer Sheva: Ben-Gurion University of the Negev Press; Jerusalem: Israel Exploration Society, 1996), 78. 11QTempleb, frg. 20, may also attest a miniscule portion of this plus:   -, thus, the second person pronominal suffix of “your

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tic k, Akkadian šumma, and Sumerian t u k u m b i.36 But the same Hebrew conjunction also bears a wide range of unrelated meanings (“because” or

father” with the following “or”; so Qimron, Temple Scroll, 78; and Florentino García Martínez et al., eds., Qumran Cave 11 (DJD 23; Oxford: Clarendon, 1998), 401–2. The judgment that the pronominal suffix belongs to  , “father”—thus attesting the plus of the variant—rather than to MT  , “mother,” is based in each case on the editors’ reconstruction of how the fragment fits within the line. That such reconstructions are by no means definitive is demonstrated by the degree of divergence between them. Whereas Qimron locates the fragment in question toward the right edge of the column, the editors of DJD situate it on the left. Given such variation, it is unclear that the attestation of the plus in 11QTempleb can be so directly mandated by the tentative reconstruction of the text’s original form and line length. The indication is rather that the reconstruction may be based from the outset on the assumption that 11QTempleb, as an expansive text, conforms to 11QTemplea in attesting the plus. Yet other expansive texts, like 4QDeutc, may include striking omissions, as already demonstrated. On this basis, it would be methodologically more defensible to conclude that at Qumran only 11QTemplea and 4QDeutc, but not 11QTempleb, witness the plus. Conversely, however, the Qumran manuscripts provide no clear attestation of the shorter reading reflected by the MT. For the correct identification and publication of 11QTempleb, frg. 20, see A. S. van der Woude, “Ein bisher unveröffentliches Fragment der Tempelrolle,” Mémorial Jean Carmignac, RevQ 13 (1988): 89– 92; and Florentino García Martínez, “11QTempleb: A Preliminary Publication,” in The Madrid Qumran Congress: Proceedings of the International Congress on the Dead Sea Scrolls (ed. Julio Trebolle Barrera and Luis Vegas Montaner; 2 vols.; STDJ 11; Leiden: E. J. Brill; Madrid: Editorial Complutense, 1992), 2:363– 91, esp. 388– 89. This information permits a correction to the valuable index prepared by Eugene Ulrich, “An Index of the Passages in the Biblical Manuscripts from the Judean Desert (Genesis–Kings),” DSD 1 (1994): 113–29 (at 124), which cites “11QDeut?” as an additional attestation of Deut 13:7–11. That reference is actually a misidentification of 11QTempleb (as graciously confirmed by Prof. Ulrich via email, November 10, 1999) that derives from J. P. M. van der Ploeg’s preliminary description of the fragment from 11QTempleb as biblical (“Les manuscrits de la Grotte XI de Qumrân,” RevQ 12 [1985]: 10). The misidentification recurs in Joseph A. Fitzmyer, The Dead Sea Scrolls: Major Publications and Tools for Study (rev. ed.; SBLRBS 20; Atlanta: Scholars Press, 1990), 68 and 215; and, most recently, Eugene Ulrich, “Index of Passages in the Biblical Scrolls,” in The Dead Sea Scrolls after Fifty Years: A Comprehensive Assessment (ed. Peter W. Flint and James C. VanderKam; 2 vols.; Leiden: E. J. Brill, 1999), 2:649– 65 (at 654). The correction is also noted by García Martínez, “11QTempleb,” 389. I am grateful to Molly Zahn for her careful analysis of the reconstruction of 11QTempleb, frg. 20. 36 For k as introducing conditional clauses in Ugaritic, see Josef Tropper, Ugaritische Grammatik (AOAT 273; Münster: Ugarit-Verlag, 2000), 801–2 (§83.24b), 909 (§97.91). On the Akkadian and Sumerian conjunctions, see Roderick A. F. Mackenzie, “The Formal Aspect of Ancient Near Eastern Law,” in The Seed of Wisdom: Essays in Honor of T. J. Meek (ed. W. S. McCullough; Toronto: University of Toronto Press, 1964), 31– 44.

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“for”; asseverative marker).37 Indeed, the conjunction is second only to paratactic - as the most frequent clause connector in Hebrew, with over four thousand occurrences.38 Given the ambiguity that inevitably arises, the strong tendency of Second Temple Hebrew is to restrict  to the “because” function and to assign the “if ” function to  .39 In fact, the nonretention of conditional  constitutes one of the distinguishing characteristics of Rabbinic Hebrew.40 That process of linguistic updating and lexical specification provides the context for the replacement of the older conjunction here.41 This section of the Temple Scroll also presupposes extensive redactional reordering of the biblical text. Consistent with his proclivity to regroup biblical laws, the redactor of the Temple Scroll employs Deut 16:18–20 to introduce a section on the judicial system (11QTemple 51:11– 16). He follows that unit with a broad collection of cult laws culled from the Tetrateuch (11QTemple 51:16 –54:7). Then, anticipating the topically similar law that will follow, he departs from the biblical textual order to insert the incitement laws of Deut 13:1–18 (11QTemple 54:8–55:14). Following this regrouping of laws based on the shared topic of apostasy, 37 Ugaritic k is similarly polyvalent. Its causal, conditional, temporal, and affirmation functions are often difficult to distinguish; see Tropper, Ugaritische Grammatik, 795 (§83.151), 800 – 803 (§83.24). 38 See Anneli Aejmelaeus, “The Function and Interpretation of  in Biblical Hebrew,” JBL 105 (1986): 193–209. The frequency of attestation is noted on p. 193. [For reprint, see Bibliography.] 39 In the Covenant Code, the latter conjunction carried that meaning, but marked subconditions rather than the main protasis. Thus contrast the use of  to mark the main protasis of the manumission law (Exod 21:2) with the designation of the subconditions by  (vv. 3, 4, 5). Analogously, contrast Exod 22:7 with vv. 8, 9, 10, 11. 40 See Abba Bendavid, Biblical Hebrew and Mishnaic Hebrew (2 vols.; Tel Aviv: Dvir, 1967, 1971), 1:261 and esp. 2:614 (Hebrew). A similar significance is attached by Miguel Pérez Fernández to the loss of the particle as a dependent clause marker (An Introductory Grammar of Rabbinic Hebrew [Leiden: E. J. Brill, 1997], 214). The inconsistency of the replacement in biblical citations at Qumran suggests a stage that is transitional from the classical to the rabbinic use; see Takamitsu Muraoka, “An Approach to the Morphosyntax and Syntax of Qumran Hebrew,” in Diggers at the Well: Proceedings of a Third International Symposium on the Hebrew of the Dead Sea Scrolls and Ben Sira (ed. T. Muraoka and J. F. Elwolde; STDJ 36; Leiden: E. J. Brill, 2000), 212–13. 41 The precise reason for the substitution in the Temple Scroll has been debated, since it does not occur consistently. For the contrasting interpretations, see Yadin, Temple Scroll, 2:247; and Gershon Brin, “The Bible as Reflected in the Temple Scroll,” in Shnaton: An Annual for Biblical and Ancient Near Eastern Studies 4 (ed. Moshe Weinfeld; Jerusalem: Israel Bible Society, 1980), 182–224 (Hebrew, English abstract), esp. 214 –17. For an attempt to provide a systematic explanation, see Bernard M. Levinson and Molly M. Zahn, “Revelation Regained: The Hermeneutics of  and  in the Temple Scroll,” DSD 9 (2002): 295–346.

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the peripatetic redactor returns to the original legal sequence.42 He resumes with the law granting local courts the right of capital punishment in cases of apostasy (Deut 17:2–7 = 11QTemple 55:15–56:?),43 the law on the central court at the Temple (Deut 17:8–13 = 11QTemple 56:?–11), and the law of the king (Deut 17:14–20 = 11QTemple 56:12–21). On the basis of such updating, both linguistic and redactional, the attestation of the textual plus by the Temple Scroll cannot be separated from its literary context: the reception of and reflection upon the biblical text by the Judaisms of the Second Temple period.

The Evidence of Comparative Semitics and Historical Linguistics One approach to the text-critical variation between the MT and the LXX/SP maintains that neither preserves the original text. This approach attempts to make the grammatical number of the verse’s protasis consistent with the singular form of the pronominal suffixes in the apodosis (vv. 9 –11).44 The original Hebrew text is thus reconstructed to refer to  , “your brother,” alone. The entire continuation is excised as secondary: not only the reference to the full brother or to the half-brother but also the complete list of 42 On the reorganization of the biblical material, see Yadin, Temple Scroll, 2:246. Accordingly, when Alexander Rofé “restores” Deut 17:2–7 to Deut 13, regarding it as a missing textual fragment that had somehow broken off from its original context, partially on the basis of the common grouping attested by the Temple Scroll, he does not pursue the implications of his astute insight that the Temple Scroll groups the laws together based on the common theme (“The Arrangement of the Laws in Deuteronomy,” ETL 64 [1988]: 265– 87). At issue is a secondary regrouping—an ordo facilior—rather than an original legal order. For a fuller analysis of the problematic textual sequence involved, see Bernard M. Levinson, Deuteronomy and the Hermeneutics of Legal Innovation (New York: Oxford University Press, 1997), 100 –109. 43 Although there are several lines missing from the top of col. 56, the first extant line cites Deut 17:9b. According to the reconstruction of the number of lines originally in the column, the missing section (Deut 17:6 – 9a) would neatly fill the space available (see Yadin, Temple Scroll, 2:249–51). 44 On the basis of the seeming grammatical inconsistency, Seitz maintained that the law originally knew only a singular subject: the biological  , “brother”; see Redaktionsgeschichtliche Studien, 144– 45 (n. 160) and 150 –51. He reasoned that when the Deuteronomic authors subsequently employed the same word metaphorically to refer to the “fellow-Israelite” (see Deut 15:2–3), the appositional definition in relation to the mother became necessary to specify the actual sibling. This secondary addition to the text triggered in turn the catena of other biological relations (son/daughter) and intimate relations (wife/friend) now present. The LXX/SP further amplified the catena with the plus. From this viewpoint, the LXX/SP represents a tertiary expansion of an already secondarily expanded Hebrew text (MT).

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additional family members and intimates. This drastic surgery is unnecessary. The rules of congruence in classical Hebrew syntax are flexible and do not demand such wooden consistency.45 Moreover, comparative evidence from the ancient Near East that might have controlled and contextualized the argument, some of which was valuably cited, was arbitrarily deemed irrelevant.46 In fact, the appositional formula employed by the MT,  %  , “brother, son of mother,” is well attested in the Semitic languages. The string occurs as a Ugaritic word pair.47 Its attestation in Akkadian, in the Neo-Assyrian treaty corpus, bears particular importance, since this corpus dates to within roughly a century of Deuteronomy’s composition.48

45

Seitz imposes a modern notion of grammatical agreement upon the text. Like many languages, however, classical Hebrew syntax has various ways to construe the grammatical number of coordinated subjects. For example, plural subjects may sometimes take predicates that alternate between singular and plural in referring back to the subject (see Lev 11:32–33; 13:58; Num 5:6 – 7; 30:3–16; Deut 17:2, 5; 22:1–2). Just as easily, plural subjects, coordinated as here with  (“or”), may be resolved in the grammatical singular, both verbally and pronominally (Exod 22:6; Lev 25:49; Deut 13:2–3; 15:12–14; Jer 23:33–34). Particularly relevant is the case of Deut 15, whose coordinated plural subject (        , “If your fellow Hebrew, whether male or female, sell himself to you”) is resolved by a singular verb ( , “and serve you”) and by singular pronominal suffixes: . . .      . . .    , “And in the seventh year you must send him free from you . . . You must certainly give him a gift . . . (vv. 12–14). See the valuable study by Jaakov Levi, Die Inkongruenz im biblischen Hebräisch (Wiesbaden: Otto Harrassowitz, 1987), 25–29. 46 Seitz explicitly rejects the relevance to Deut 13 of Esarhaddon’s Succession Treaty, while noting the “überraschend ” similarity of language and theme (Redaktionsgeschichtliche Studien, 150 –51). He denies any influence of the secular Neo-Assyrian state treaties on the covenant theology of Deuteronomy. Ironically, the very text that Seitz cites to defend the origins of Deut 13 in the Israelite covenant formulary tradition attests the same basic catena—brother + neighbor + kin (Exod 32:17)—whose originality he denies to Deut 13:7 (pp. 144– 45). 47 As valuably noted by both Perlitt (“Ein einzig Volk von Brüdern,” 53–54) and Tigay (Deuteronomy, 367 n. 26). Perlitt shows how Seitz’s argument, based on the incongruence of grammatical number between 13:9 and 13:7, fails to take into account the legal logic involved. Nonetheless, Perlitt’s alternative solution is untenable. He argues that the fuller list of the LXX and SP represents the original reading, citing as evidence the frequency of the appositional definition of the brother in relation to the parent in Northwest Semitic. In that way, his own evidence confutes his emendation: all of the Hebrew and Ugaritic word pairs he cites provide only the uterine brother as the parallel term. There is not a single reference to the half-brother. Perlitt’s analysis thus actually works against his conclusions and demonstrates the inconsistency of the LXX/SP—and the consistency of the MT—with standard Northwest Semitic. 48 Noting the attestation is Weinfeld, Deuteronomy and the Deuteronomic School, 98 n. 5.

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Ugaritic

127

49

Kirta (CAT 1.14.I.7– 9) bt / [m]lk. itbd dšb/ [a]m. lh. tmnt. bn um/

The house of a king has perished: A house with seven brothers, Even eight mother’s sons!

Baal (KTU 1.6.VI.10 –11, 14 –16) p[h]n.aym.ytn.bl/spuy. bnm.umy.klyy/ ............ aym.ytnt.bl/spuy. bnm.umy.kl/yy

So look! Baal gave my brothers as my food, My mother’s sons for my consumption! .................. My brothers, O Baal, you gave as my food, My mother’s sons for my consumption!

Akkadian: Esarhaddon’s Succession Treaty

50

u a šu mar ummšu ša Aššur-bni-apli mari šarri rabii (8; line 94)

and his brothers, sons by the same mother as Ashurbanipal, the great crown prince designate

ša a šu mar ummšu kar šunu takkalni (24; line 270)

You shall not slander his brothers, his mother’s sons

m kar ša a šu mar

ummšu ina pn šu akl m šami  ina bertuššunu m a šu mar ummšu issu pn šu purs (29; lines 341– 43) FIGURE 49

(You shall not) slander his brothers, sons of his mother, before him, make it come to a fight between them, and divide his brothers, sons of his mother, from him

6.2: The Semitic Context of the Word Pair

The identification of the word pair follows Stanley Gevirtz, who discusses its use in both Ugaritic and Biblical Hebrew (Patterns in the Early Poetry of Israel [SAOC 32; Chicago: University of Chicago Press, 1963; 2d ed., 1973] 10, 42– 43). Similarly, Loren Fisher, ed., Ras Shamra Parallels (3 vols.; AnOr 49–51; Rome: Pontifical Biblical Institute, 1972), 1:103. For the Ugaritic texts and translations employed here, see Simon B. Parker, ed., Ugaritic Narrative Poetry (SBLWAW 9; Atlanta: Scholars Press, 1997), 12 (Kirta), 162 (Baal) (emphasis added). For the scholarly edition of the Kirta text (CAT), see M. Dietrich, O. Loretz, and J. Sanmartín, eds., The Cuneiform Alphabetic Texts from Ugarit, Ras Ibn Hani, and Other Places (Münster: Ugarit-Verlag, 1995). For the Baal Epic (KTU), see M. Dietrich, O. Loretz, and J. Sanmartín, eds., Die keilalphabetischen Texte aus Ugarit, vol. 1, Transkription (AOAT 24.1; Kevalaer: Butzon & Bercker; Neukirchen-Vluyn: Neukirchener Verlag, 1976).

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The string is common also in classical Hebrew, where it is found in a broad range of literary genres, extending from narrative to wisdom and poetry. Poetry Gen 27:29

        Be lord over your brothers, and may your mother’s sons prostrate themselves before you

Ps 50:20

 %  %    

You sit and speak against your own brother, against your own mother’s son you set calumny Ps 69:9

       

I have become a stranger to my own brothers, an alien to the sons of my own mother. Narrative Gen 43:29

 %  %     When he [Joseph] raised his eyes and saw his brother Benjamin, the son of his own mother . . .

Judg 8:19

   

They were my brothers, the sons of my own mother 51 (had you allowed them to live, I would not kill you!) Treaty Law Deut 13:7

 %    

Even if your very own brother, the son of your mother, 50 should incite you FIGURE 6.3 The Word Pair “Brother/Son of Mother” in Hebrew

51

50

Esarhaddon’s Succession Treaty was first published by Donald J. Wiseman, The Vassal-Treaties of Esarhaddon (Iraq 20.1; London: British School of Archaeology in Iraq, 1958). The designation “Succession Treaty” is now recognized as a more accurate way of describing its function than the older term, “Vassal Treaty.” For convenience, however, I shall retain the commonly recognized abbreviation VTE for citations to specific paragraphs or lines of the treaty. The normalized Akkadian here follows Kazuko Watanabe, Die adê-Vereidigung anlässlich der Thronfolgeregelung Asarhaddons (Baghdader Mitteilungen: Beiheft 3; Berlin: Gebr. Mann, 1987), 148, 156, 158, 160. For the translation, see Simo Parpola and Kazuko Watanabe, eds., Neo-Assyrian Treaties and Loyalty Oaths (SAA 2; Helsinki: Helsinki University Press, 1988), 32, 39, 42– 43. I have revised the translation of lines 341– 43 to make them more literal and consistent. These citations do not represent all attestations of the string; the complete list would add lines 103, 171–72, 285, 354, 497, 504, and 516. The other treaties in this collection do not attest the word pair.

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In stark contrast, however, to the excellent Semitic pedigree of  %  , the string that includes the Septuagint plus ( % +  %  ) has no attestation whatsoever in classical Hebrew.52 The apposition that defines the brother in relation to both the father and the mother is found only in the Second Temple period literature that specifically marks the reception, translation, and reinterpretation of Deut 13:7a. brother, son of mother

brother, son of father or son of mother

Preexilic Ugaritic Biblical Hebrew Neo-Assyrian treaty

+ + +

— — —

Second Temple LXX Dead Sea Scrolls Samaritan Pentateuch

+ + +

+ + +

FIGURE 6.4 Attestations of the Two Forms of the Appositional String

The evidence of language becomes even more telling if the analysis shifts from the first term, with its focus on the male sibling (the  , “brother”), to the problematic string at issue, the double apposition that defines the sibling in relation to both parents: Defining the Brother

—

Defining the Sister

+

FIGURE 6.5 The Double Apposition < child of father + child of mother > in Biblical Hebrew

Although the double apposition never defines the brother, there is clear attestation for it in relation to the sister—but only in the context of incest. There the ruling that sexual relations with the female sibling are prohibited comprehensively—with the half-sister as well as with the full sister— makes sense. For that reason, the sister is doubly defined in relation to both the male and the female parent (Lev 18:9; 20:17; Deut 27:22; cf. Gen 51

Gideon’s strong statement to the captive kings, Zebah and Zalmunna, shows how the word pair can stress a protective bond of intimacy between uterine brothers. Deuteronomy 13:7–12 deliberately challenges that intimacy with a conflict of loyalty.

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20:12). The double specification takes a consistent form, naming the male parent before the female parent. That sequence is intentional: it makes the point that all sibling sexual relations—even with the half-sister—are illicit. The more comprehensive ruling seems to react against the assumption that intercourse with the half-sister was originally permitted, as Abraham takes for granted in his self-serving exculpation (Gen 20:12). Thus, the one context for the string—sibling + child of father + child of mother—is incest. . . .       

Lev 18:9

%   

The nakedness of your sister, whether the daughter of your father or the daughter of your mother . . . you must not uncover their nakedness!

                . . .    

Lev 20:17

Any man who takes his sister, whether the daughter of his father or the daughter of his mother, and sees her nakedness, . . .—the nakedness of his sister has he uncovered; he punishment for his iniquity must he bear!

         

Deut 27:22

Cursed be he who sleeps with his sister, whether she is the daughter of his father or the daughter of his mother!

              

Gen 20:12

Besides, she is indeed my sister—the daughter of my father but not the daughter of my mother—and she became my wife. FIGURE

6.6: The One Context for the Double Apposition

These results suggest the following analysis. The Septuagint translator of Deuteronomy frequently follows the model of translations of previous books.53 That stands to reason, given the extent to which Deuteronomy provides an expansive reprise of prior narrative and legal material of the Tetrateuch. On occasion, much like the redactor of the Samaritan Pentateuch, the translator will fill in perceived gaps. Something like that seems to have taken place here. In rendering the incest law of Lev 18:9, the Septuagint translator had normalized the formulaic Hebrew double construct into two genitive phrases, while also eliminating the redundant second reference to the daughter:

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MT Lev 18:9

       

The nakedness of your sister, the daughter of your father or the daughter of your mother

LXX Lev 18:9 The nakedness of your sister, from your father or from your mother

ajschmosuvnhn th'" ajdelfh'" sou ejk patrov" sou h] ejk mhtrov" sou

That ready-to-hand LXX string, derived from the comprehensive formulation of the incest law, provides the model for the Deuteronomy translator’s rendering of the incitement law. Only now it is appended to the male sibling: MT Deut 13:7

 %  

your brother, the son of your mother

LXX Deut 13:6 oJ ajdelfov" sou ejk patrov" sou   h] ejk mhtrov" sou





your brother, from your father or from your mother

The Deuteronomy translator’s recourse to the model translation provided by the incest law is not simply a matter of convenience. At issue seems something closer to halakic exegesis based on the partial lexical analogy between the two texts. That association triggered the expectation that the sibling relation must automatically include both parents. The perceived genealogical gap of the one text is completed by the symmetry of the other text. The precise conformity of the Septuagint rendering of Deut 13:7(6) to the syntax of LXX Lev 18:9 urges the latter as the direct Vorlage of the plus. 5253 There are, however, two cases in Hebrew of the parallelism  %/ , “brother/son of the father” (without continuation). These two attestations (one biblical, one postbiblical) do not seem to preserve an original Semitic word pair, for which I have found attestation neither in Ugaritic nor in Akkadian. Rather, each seems to represent a contextually specific reuse of previous material. Thus, the blessing that Jacob received from his father, “Be lord over your brothers ( ) / and may your mother’s sons (  ) prostrate themselves before you” (Gen 27:29), is adapted to the new situation of Jacob as now both speaker and father: “Judah, your brothers ( ) shall praise you; / . . . / your father’s sons ( ) shall prostrate themselves before you” (Gen 49:8). The second attestation is in the Qumran Psalms Scroll: “Junior (%$) was I to my brothers ( ), / And the youngest of my father’s sons ( )” (Ps 151A:1; 11Q5, col. XXVIII, line 3; see James A. Sanders, The Dead Sea Psalms Scroll [Ithaca, NY: Cornell University Press, 1967], 96 – 97). The psalm, pseudepigraphically attributed to David, here adapts Gideon’s humble protest—“I am the youngest in my father’s house” (  ; Judg 6:15)—to the literary situation of David as “the junior” sibling (%$; 1 Sam 52

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The corresponding plus in the Qumran fragment and in the Samaritan Pentateuch seems equally to represent the influence of the incest law (Lev 18:9). On the analogy of its comprehensive application, and following its precise order, whereby the half-sibling precedes the full sibling (      ), so do the Second Temple witnesses to the text “complete” the restrictively formulated law of MT Deut 13:7, so that it no longer excludes the “missing” reference: SP 4QDeutc

 %   %   %   %

The symmetrical formulation thus embeds a tradition of legal interpretation of the text into the transmission of the text. The Samaritan Pentateuch is well known for filling in perceived narrative or legal gaps in the biblical text; the document witnesses a sophisticated tradition of legal hermeneutics.54 Moreover, the exegetical expansion of a restrictively formulated biblical law (here specifying the full brother) to include the expected symmetrical match (the half-brother) represents a type of exegetical move that is well attested at Qumran. Whereas biblical law, for example, includes sexual relations between a nephew and an aunt among its prohibitions (Lev 18:13; 20:19b–20), it remains silent about the converse: relations between niece and uncle. On the logical assumption that a prohibition applied to the male (intercourse with the female sibling of a parent) should symmetrically also apply to a female (intercourse with the male sibling of a parent), such relations were also prohibited at Qumran, despite the absence of biblical warrant: “A man shall not take the daughter of his sister, for this is an abomination” (11QTemple 66:15–17). Given the literary genre of the Temple Scroll as an original divine revelation, spoken in the first person by God, the law here proclaimed needs, of course, no justification. But that the ostensibly “scriptural” law in

17:14). The two variants (Gen 49:8; Ps 151:1) are noted by Yitzhak Avishur, Stylistic Studies of Word-Pairs in Biblical and Ancient Semitic Literatures (AOAT 210: Kevelaer: Butzon & Bercker; Neukirchen-Vluyn: Neukirchener Verlag, 1984), 435 n. 3. A third and final variant occurs in the “Plea for Deliverance”: “Let my brothers ( ) rejoice with me / and the house of my father ( ) . . .” (11Q5, col. XIX, line 17; Sanders, DJD 4 [1965], pl. XII). For the same parallelism (brothers/house of the father), see LXX Ps 151:1. 53 Aejmelaeus, “Septuaginta,” 4. 54 For the Samaritan Pentateuch’s redactional sophistication, see Jeffrey H. Tigay, “Conflation as a Redactional Technique,” in Empirical Models for Biblical Criticism (ed. Jeffrey H. Tigay; Philadelphia: University of Pennsylvania Press, 1985), 53– 96. For the later period, see S. Lowy, The Principles of Samaritan Bible Exegesis (StPB 28; Leiden: E. J. Brill, 1977).

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fact presupposes exegetical elaboration of pentateuchal law is made clear by the presentation of the same law in the Damascus Document:55



       ()       $                           

And each man takes in marriage / the daughter of their brother or the daughter of his sister, although Moses had said, / “The sister of your mother shall you not approach: she is your mother’s kin” [cf. Lev 18:13]. Now, although the [biblical] law of incest is written with reference to men, it applies equally to women. Thus, if the daughter of the brother uncovers the nakedness of her father’s / brother: that should be considered “kin.”

The exegete here makes the technical argument that the biblical text, although formulated to address only males (incest with the aunt), should logically also apply to females (incest with the uncle).56 The argument is based upon meticulous attention to the stylistic norms of biblical law:      $, “the law of incest is written with reference to men.” The linguistic analysis points to a sophisticated legal hermeneutic.57 At that point, by means of a formal analogy58— 55 CD 5:7b–11 (my translation); I am grateful to Prof. Timothy H. Lim for drawing my attention to this passage. For the text, see Magen Broshi, ed., The Damascus Document Reconsidered (Jerusalem: Israel Exploration Society/Shrine of the Book, Israel Museum, 1992), 18 –19. On the law, see Joseph M. Baumgarten, “The Essene-Qumran Restraints on Marriage,” in Archaeology and History in the Dead Sea Scrolls (ed. Lawrence H. Schiffman; Sheffield: JSOT Press, 1990), 13–24. 56 For the same prohibition, see also 4QHalakhah A (4Q251) and the reconstruction of 4QDe 2 ii 16 (Joseph Baumgarten, ed., Qumran Cave 4, XIII, The Damascus Document [4Q266 –273] [DJD 18; Oxford: Clarendon, 1996], 142– 45). Note the discussion by Charlotte Hempel, The Laws of the Damascus Document: Sources, Tradition and Redaction (STDJ 29; Leiden: E. J. Brill, 1998), 164– 68. 57 The sectarian position is well justified, given biblical law’s frequent use of the masculine pronoun as a “common” gender for a mixed male and female antecedent: . . .   . . .        . . .    , “If there be found among you . . . a man or a woman who does evil and who goes and worships . . .” (Deut 17:2–3). Another example is the manumission law of Deut 15:12–18, where the third person masculine singular verb—and even the noun  (“your brother”)—refers back to the   , “male or female Hebrew” (Deut 15:12), who are identified as the law’s subject. On the “priority of the masculine,” see IBHS, 108. 58 On the technically marked halakic exegesis involved, see Michael Fishbane, “Use, Authority and Interpretation of Mikra at Qumran,” in Mikra: Text, Translation, Reading, and Interpretation of the Hebrew Bible in Ancient Judaism and Early Christianity (ed. Martin J. Mulder; CRINT 2.1; Assen/Maastricht: Van Gorcum; Philadelphia: Fortress, 1988), 339–77 (at 369).

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  —the legal exegete draws the justifiable conclusion. The law must logically be symmetrical in its application: “It applies equally to women” (lit., “women are like them,” i.e., like men, subject to the law).59 The parallel helps establish the interplay between law and exegesis of law, between implicit and explicit midrash halakah, between the “scriptural” prohibition of niece–uncle relations in the Temple Scroll and the explicit exegetical derivation of the same law in the Damascus Document. The Second Temple versions that include the plus in the incitement law of Deut 13:7(6), although not formally marking the plus as exegetically derived, nevertheless presuppose similar halakic exegesis. The variant does not preserve a true reading; rather it preserves a record of the exegetical expansion of the law to make it symmetrical and comprehensive in its application. The Evidence of Rabbinic Exegesis Rabbinic literature confirms that the variant represents an exegetical expansion of the shorter text reflected by the MT. In the Tannaitic halakic midrash on Deuteronomy (second century C.E.) and in one stream of the Palestinian targumic tradition,60 the plus is formally marked as derived from exegesis: 59

Pharisaic law took the scriptural silence on the matter in the opposite direction and sanctioned marital relations between uncle and niece (b. Yebam. 62b; y. Yebam. 13:2 13c). These rabbinic sanctions may also involve polemics against the prohibitions of CD 5:7b–11 and 11QTemple 66:15–17; so Magen Broshi, “Anti-Qumranic Polemics in the Talmud,” in The Madrid Qumran Congress: Proceedings of the International Congress on the Dead Sea Scrolls (ed. Julio Trebolle Barrera and Luis Vegas Montaner; 2 vols.; STDJ 11; Leiden: E. J. Brill; Madrid: Editorial Complutense, 1992), 2:589– 600 (at 596). That such relations were a live point of halakic debate between Jewish communities is suggested by the existence of the same prohibition among Samaritans, Falashas, and Karaites; see Elisha Qimron, “The Halakha of the Damascus Document: An Interpretation of Al Itarav,” in Proceedings of the Ninth World Congress of Jewish Studies, Division D, Vol. 1 (Jerusalem: Magnes, 1986), 9–15 (Hebrew). 60 The Palestinian targumic tradition divides. While Targum Pseudo-Jonathan (cited on the next page, in Figure 6.7) adds the reference to the half-brother exegetically, Targum Neofiti and the two manuscripts of the Fragmentary Targum that attest Deut 13:7 each follow the MT. See Alejandro Díez Macho, Neophyti 1: Targum Palestinense Ms de la Biblioteca Vaticana, vol. 5: Deuteronomio: Edición príncipe, introducción y versión castellana (Textos y Estudios 11; Madrid: Consejo Superior de Investigaciones Científicas, 1978), 5:127; Michael L. Klein, The Fragment-Targums of the Pentateuch (AnBib 76; 2 vols.; Rome: Biblical Institute Press, 1980), 1:214. Onqelos follows the MT; see Alexander Sperber, The Bible in Aramaic Based on Old Manuscripts and Printed Texts, vol. 1: The Pentateuch according to Targum Onkelos (Leiden: E. J. Brill, 1959; repr., 3 vols. in 1; 3d ed.; Leiden: E. J. Brill, 2004), 314.

6. Textual Criticism, Assyriology, and the History of Interpretation Sifre61

135

 %  , % .    ,

“Your brother”: this means, the son of your father. “The son of your mother”: this means, [your brother], the son of your mother. Tg. Ps-J. Deut 13:762

  %     

“Your brother, the son of your mother”: so much the more so the son of your father! FIGURE

6.7: The Exegetical Origins of the Plus: Midrash Halakah

In each case, the rabbis assume the apposition to have exegetical significance. The authors of the Sifre break up the word pair, in effect denying that the apposition simply amplifies and repeats the first term. Far from being mutually redundant, the two terms are each given independent significance. By means of such conventional “creative philology,” whereby perceived redundancies in the biblical text are exegetically exploited, the “missing” symmetrical reference to the half-brother is restored to the text.63 The Targum achieves the same goal by somewhat different means. Here the appositional formulation of the text is exploited as justification for a classical   (a minore ad maius) argument.64 In both cases, therefore, the perceived gap in the text is corrected and the law is specified as comprehensively applying to both the full- and the half-brother. Similar halakic exegesis marked the traditional interpretation of the biblical text. Rashi (R. Solomon b. Isaac, 1040 –1105 C.E.), as he frequently does, closely follows the Sifre’s model of exegetical suppletion to “restore” the 61

Sipre Deuteronomy, pisqa 77 (Louis Finkelstein, ed., Siphre ad Deuteronomium: H. S. Horovitzii schedis usus cum variis lectionibus et adnotationibus editit [Corpus Tannaiticum 3.3; Berlin: Jüdischer Kulturbund, 1939; repr., New York: Jewish Theological Seminary of America, 1969], 151 [my translation]). 62 Importantly adduced by Dion, “Deuteronomy 13,” 153 (see n. 15 above). The text is cited according to Ernest G. Clarke, ed., Targum Pseudo-Jonathan of the Pentateuch: Text and Concordance (Hoboken, N.J.: Ktav, 1984), 225. The brother reference is the more striking as being the only term in the series so to be rhetorically marked with the exegetical expansion. 63 The apt term “creative philology,” used to describe a key technique of rabbinic exegesis, was coined by Joseph Heinemann, Darkhe ha-Aggadah (3d ed.; Jerusalem: Magnes, 1970), 4 –7, 96 –107 (Hebrew). 64 On this exegetical technique, see Wilhelm Bacher, Die exegetische Terminologie der jüdischen Traditionsliteratur (2 vols.; Leipzig: Hinrichs, 1899–1905; repr., Darmstadt: Wissenschaftliche Buchgesellschaft, 1965), 1:172–74; and H. L. Strack and Günter Stemberger, Introduction to the Talmud and Midrash (ed. and trans. Markus Bockmuehl; 2d printing; Minneapolis: Fortress, 1996), 18 –19.

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symmetry:    %     , “your brother from the father; or the son of your mother from the mother.”65 It is only with the Spanish school of exegesis that the text’s original meaning is recovered. Abraham ibn Ezra (1089–1164 C.E.) pointedly rejects the conventional halakic midrash that regards the appositional doubling as justifying the extension of the law to include the halfbrother.66 Strikingly, he uses the same expositional form as the Sifre and Rashi (separate comments on each term of the word pair) precisely to show that they have the same legal reference. Far from warranting the expansion of the law to include the half-brother, the apposition simply provides a means of rhetorical heightening. It engages the affective response of the addressee:67 .  ,$ .   

. %$  . % $ “If your brother incites you”: the reason for this is “[If ] even your own brother.” And the reason for “son of your mother”: since you were both in a single womb.

The rabbinic literature provides a frame of reference from which to assess the variants. That the textual plus is consistently formally marked as derived by means of exegetical logic strongly suggests that the Second Temple witnesses to the longer text (the LXX, the Samaritan Pentateuch, 65

The best edition of Rashi’s Commentary on the Pentateuch, citing the classical rabbinic sources that he frequently (as here) draws upon, is Charles Ber [ayim Dov] Chavel, ed., Perushe Rashi al ha-Torah (3d ed.; Jerusalem: Rav Kook Institute, 1985– 1986), – [545– 46]. He bases his text upon the earlier work of Abraham Berliner, ed., Raschi: Der Kommentar des Salomo b. Isak über den Pentateuch (Frankfurt: J. Kauffmann, 1905), 376. The translation is based instead on the popular text of the rabbinic Bibles: Morris Rosenbaum and Abraham Maurice Silbermann, trans., Pentateuch with Targum Onkelos, Haphtaroth, and Rashi’s Commentary (5 vols.; London: Shapiro Valentine, 1929–1934; repr., Jerusalem: Silbermann, 1973), 5:72. 66 Showing the emergence during the twelfth century of nonhalakic biblical exegesis, see Martin I. Lockshin, “Tradition or Context: Two Exegetes Struggle with Peshat,” in From Ancient Israel to Modern Judaism: Intellect in Quest of Understanding: Essays in Honor of Marvin Fox (ed. Jacob Neusner, Ernest S. Frerichs, and Nahum M. Sarna; 4 vols.; BJS 159, 173–75; Atlanta: Scholars Press, 1989), 2:173– 86. 67 Abraham ibn Ezra, Commentary on the Torah (ed. Asher Weiser; 3 vols.; Jerusalem: Rav Kook Institute, 1977), 3:253 (Hebrew; scriptural lemmas bolded in original; my translation). Ibn Ezra does not here reject the method of midrashic hermeneutics. The issue is thus rather his freedom to interpret the biblical text independent of midrash halakah. Thus, in the continuation of his comment on this lemma, Ibn Ezra maintains that the formulation of the law has philosophical significance. He maintains that the explicit mention of the mother and the nonmention of the father reflect the relation between matter, which is readily visible, and form, which, as never existing independent of matter, is intelligible only to the learned.

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4QDeutc) preserve—in Greek, Samaritan, and Hebrew—the earliest witnesses to the same school of studied reflection upon the biblical text. They cannot logically be seen as preserving an original reading or a true textual variant. Rather, they testify to the history of interpretation: to traditions of hermeneutics that several textual communities shared and that spanned linguistic and sectarian lines. The only way to understand the variant is as an exegetical expansion whereby the shorter text (witnessed by the MT) has been supplemented in light of the string that originates in the unrelated legal context of the incest prohibitions. With that conclusion, however, the question remains of how to understand the narrow focus of the MT on the full brother. What is the logic of the shorter text, which has been lost by the more expansive text of the exegetical traditions? Given its originality as a reading, what does it mean? The question is pressing, because some have argued that the MT in fact means the same thing as the expanded text: that the inclusion of the halfbrother is implicit.68 Others reject this approach, maintaining that the MT is intentionally restrictive in its formulation.69 At this point, several ironies emerge. Conventional disciplinary boundaries divide textual criticism and biblical studies, on the one hand, from rabbinics and the history of interpretation, on the other. As a result, an important chapter of the history of scholarship is often not taken into account.70 This situation triggers something like intellectual amnesia, as the modern critical debate can recapitulate “pre-critical” rabbinic positions nearly verbatim.71 The additional irony is that Ibn Ezra’s analysis of the text’s rhetoric receives striking confirmation from cuneiform literature.

68 August Dillmann, Die Bücher Numeri, Deuteronomium und Josua (Kurzgefasstes exegetisches Handbuch zum Alten Testament; 2d ed.; Leipzig: Hirzel, 1886), 301. 69 Most clearly, König (Deuteronomium, 123) rejects the expanded text of the LXX/SP as “eine Trivialität.” Similarly, Tigay (Deuteronomy, 367 n. 26): “The variant reading . . . misses the point.” 70 The only scholar to have done so is Dion, “Deuteronomy 13,” 153, citing Targum Pseudo-Jonathan. 71 Representing the harmonistic approach, Tg. Ps-J. Deut 13:7 views the law as implicitly comprehensive:   %      , “ ‘Your brother, the son of your mother’: so much the more so, ‘the son of your father’!” Dillmann employs the same rhetorical technique (in its negative form) to read the plus into the MT. Glossing “Sohn deiner Mutter,” he maintains: “wenn sogar dieser nicht zu schonen ist, dann um so weniger der Halbbruder; das setzen Sam. LXX . . . ausdrücklich ein” (Deuteronomium, 301). Rejecting the midrashic textual expansion, Ibn Ezra argues that the restrictive formulation is intentional. In his gloss on     , he maintains:   ,$, “The reason for this is, ‘[If] even your own brother’ [incite you, you must carry out the summary execution required by the apodosis].” König identically glosses the same lemma: “Wenn [sogar] dein Bruder” (Deuteronomium, 123).

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The Contribution of Assyriology That Akkadian also attests the idiom “brother, son of mother” has already been noted. But the larger issue is that the author of Deut 13 works within a specific literary tradition. The loyalty oath (adê) imposed by NeoAssyrian monarchs on their vassals and citizens provides his point of departure.72 The model’s prohibitions against incitement and warnings against disloyalty are reworked by Deuteronomy’s authors into laws that prohibit apostasy.73 The degree of specific similarity between the apostasy provisions of Deut 13 and the Neo-Assyrian material can be accounted for only in terms of the Deuteronomic authors having access to the treaty material, either directly or in Aramaic translation (as in the three treaties from Sefire or the Tel Fekherye bilingual inscription). Indeed, the eighth and the seventh centuries B.C.E. provided ample opportunity for Judean court scribes to have access to this material: forms of worship related to the Assyrian state cult were introduced into the temple (2 Kgs 23:11); Hezekiah had concluded a treaty with Assyria (2 Kgs 18:13–18); and the name of Manasseh appears in lists of vassal kings in the inscriptions of both Esarhaddon and Ashurbanipal.74 Deuteronomy’s authors inverted the loyalty oath by wielding the genre against its imposers and transforming it into an oath of loyalty to Israel’s divine sovereign, Yahweh.75 They placed particular focus on the treaty’s requirement that the addressee immediately report the first signs of treason, whatever its source: 72 Contra Seitz, Studien, 150 –51. Similarly, the Neo-Assyrian material is deemed “unnötig” in a debate on the textual criticism of Deut 13:10 (9) by Aejmelaeus (“Septuaginta,” 20 n. 64). Summarily dismissing it as irrelevant denies the critic access to important information on the compositional history of the text that might explain the LXX’s rejection of summary execution (so MT Deut 13:10, reflecting the Neo-Assyrian model in cases of extreme threat to the suzerain) in favor of the norm elsewhere in the Bible (Deut 17:2–7) and in Second Temple Judaism that requires due process and witness law (see Levinson, “But You Shall Surely Kill Him!” [ch. 8 infra]). 73 See Rintje Frankena, “The Vassal-Treaties of Esarhaddon and the Dating of Deuteronomy,” OtSt 14 (1965): 122–54; Weinfeld, Deuteronomy and the Deuteronomic School, 91– 94; idem, “The Loyalty Oath in the Ancient Near East,” UF 8 (1976): 379– 414; Dion, “Deuteronomy 13,” 199–205; Levinson, “But You Shall Surely Kill Him!,” infra (at 184–90); and, comprehensively, Otto, “Treueid und Gesetz,” 1–52. Challenging this approach and maintaining instead that the unit belongs to a postexilic redactional layer of Deuteronomy is Timo Veijola, “Wahrheit und Intoleranz nach Deuteronomium 13,” ZTK 92 (1995): 287–314. For responses to that challenge, see Levinson, Deuteronomy and the Hermeneutics of Legal Innovation, 123 n. 65; and the important analysis provided by Otto, Deuteronomium, 13–56. 74 See ANET, 291, 294; Mordechai Cogan and Hayim Tadmor, II Kings (AB 11; New York: Doubleday, 1988), 265.

6. Textual Criticism, Assyriology, and the History of Interpretation

šumma abutu l Åbtu l deiqtu l bantu ša ina mui Aššur-bniapli mari šarri rabii ša bt ridûti mari Aššur-au-iddina šar mt Aššur blkunu l tar tni l Åbtni l ina p nak(i)ršu l ina p salmšu l ina p ašu a abbšu mar a abbšu qinnšu zari bt abšu l ina p akunu markunu martkunu l ina p raggime maê mr šili amt ili l ina (p) napar almt qaqqadi mal bašû tašammâni tupazzarni l tallakninni ana Aššur-bni-apli mari šarri rabii ša bt ridûti mari Aššur-au-iddina šar mt Aššur l taqabbâni7576 FIGURE

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You shall not hear or conceal any evil, improper, ugly word which is not seemly nor good to Ashurbanipal, the great crown prince designate, son of Esarhaddon, king of Assyria, your lord, either from the mouth of his enemy or from the mouth of his ally, or from the mouth of his brothers, his uncles, his cousins, his family, members of his father’s line, or from the mouth of your brothers, your sons, your daughters, or from the mouth of a prophet, an ecstatic, a diviner, or from the mouth of any human being who exists; you shall come and report (it) to Ashurbanipal, the great crown prince designate, son of Esarhaddon, king of Assyria.

6.8: Esarhaddon’s Succession Treaty (=VTE) §10 (lines 108 –22)76

Such reporting of disloyalty represents only the first stage of a graded sequence. Once the conspiracy becomes grave, the loyal subject is required 75 Both Hittite (which date to the second millennium) and Neo-Assyrian treaties (of the first millennium) require loyalty by stressing the vassal’s obligation not “to conceal” (Hittite (l) munnai– and Akkadian puzzuru [D-stem]) plotters against the king or his heirs. (See Hans G. Güterbock and Harry A. Hoffner, eds., The Hittite Dictionary, vol. L–N, fascicle 3 [Chicago: The Oriental Institute of the University of Chicago, 1986], 331, s.v. munnai- for the Hittite material; for the Neo-Assyrian attestations, see Parpola and Watanabe, Neo-Assyrian Treaties, 98.) But it is specifically the latter texts, with their focus on conspiracy against the sovereign arising either from his own family or that of the addressee, which provide the literary model for the authors of Deuteronomy. That motif almost certainly reflects the controversy over Sennacherib’s promotion of Esarhaddon over his older brothers as heir (681 B.C.E.), the civil war that ensued, and the concern of Esarhaddon in that light to secure the succession of Ashurbanipal (669 B.C.E.). See Parpola and Watanabe, Neo-Assyrian Treaties, xxviii–xxxi. 76 The Akkadian excerpt of lines 108 –22 is cited according to the (eclectic) text in Parpola and Watanabe, Neo-Assyrian Treaties, 33. I have also consulted Watanabe, Die adê-Vereidigung, 148. While indebted to Parpola and Watanabe for the translation, I substantially depart from their rendering of lines 108, 115–16, 118, 119–20 so as to reflect the Akkadian more exactly.

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to take summary action and execute those who pose a threat to the sovereign.77 The Deuteronomic author redeploys this conspiracy topos, along with its requirement of summary execution. He reuses specific clusters of its language, including both its detailed list of the immediate members of the addressee’s family (“brother,” “son,” “daughter,” each inflected with the second person pronominal suffix) and the alternative, religious officials who serve as divine spokesmen (“prophet,” “ecstatic,” “diviner,” each as an indefinite noun). From this template, the Deuteronomic author creates two consecutive legal paragraphs. The first envisions the incitement to disloyalty against Yahweh as coming from “a prophet or oneiromancer” (in each case an indefinite noun);78 the second, as arising from the immediate family of the addressee (“brother,” “son,” “daughter,” adding “wife” and “friend,” each term with second person pronominal suffix). In each case, the challenge to loyalty thus arises precisely from those whom one is most likely to trust: (2) If there should arise in your midst a prophet or oneiromancer who provides a sign or portent, (3) and should the sign or portent—concerning which he had spoken to you, saying, “Let us go after other gods (whom you have not known) so that we may worship them”—come true: (4) Do not heed the oracles of that prophet or that oneiromancer . . . . (6) And that prophet or that oneiromancer shall be put to death, for he fomented conspiracy against Yahweh . . . (7) If your brother, the son of your mother, or your son, or your daughter, or the wife of your bosom, or your friend who is as your own self, entices you secretly, saying, “Let us go and worship other gods”—whom neither you nor your fathers have known . . .— (9) Do not assent to him or give heed to him! Let your eye not pity him nor shall you show compassion nor condone him (10)—but you shall surely kill him! . . . (Deut 13:2–10)79

The Deuteronomic author has reordered his source. What in the treaty was arranged as a single continuum—royal family (A) + addressee’s family (B) + divine spokesmen (C) has been divided into two separate laws, moving from the sphere of public religion (C) into the sphere of the addressee’s private life (B). In this context, there is of course no reference to threats to the sovereign from within his own family. Accordingly, the citation is 77

See VTE §12; and Levinson, “But You Shall Surely Kill Him!” (ch. 8 infra). The Hebrew term for “oneiromancer” (lit., “dreamer of dreams”) has a similar grammatical structure to the Akkadian formula for “diviner”: mr öili amt ili (lit., “one who asks for a divine utterance”). In both cases, the construction employs a masculine singular active participle in construct to a following noun. The Akkadian term can include both oneiromancy and necromancy, depending on the context (CAD Š/1, 110 – 12); but, contrary to the proposal in the original publication of this chapter (238 n. 78), it would be better not to restrict the term in this case to “oneiromancer.” 79 Verse numbering follows the MT; most English translations follow the different enumeration of the LXX, where this unit would be Deut 13:1– 9. 78

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exactly chiastic: (A):B:C :: C:B.80 The key elements of the Assyrian source are redeployed almost in a loan translation into Hebrew.81 At the same time, there are important transformations in the reference to the private sphere of the a-ddressee. In the Neo-Assyrian treaties, the reference to the family provides one variable in a series that climaxes with an allinclusive formulation: l ina (p) napar almt qaqqadi mala bašû, “or from the mouth of any human being who exists” (§10 above). The same is true in the Zakutu Treaty (669 B.C.E.):82

u šumma attunu tašammâni tuddâni ma bu mušamhi te mušadbibte [[ša]] ina bertkunu l ina ša ziqni l ina ša rši l ina ašu l ina zari šarri l ina akunu l bl Åbtkunu l ina niš mti gabbu tašammâni [tuddâni l] ta abbatninni [l tadukkni] FIGURE

and if you hear and know that there are men instigating armed rebellion or fomenting conspiracy in your midst— be they bearded or eunuch or his brothers or of royal line or your brothers or friends or anyone in your entire nation— should you hear and [know] (this), then you shall seize and [kill] (them)!

6.9: Sedition: Within the Royal or One’s Own Family (The Zakutu Treaty)

In contrast to his cuneiform sources, the Deuteronomic author has created a separate unit dealing with conspiracy from within the addressee’s own family (Deut 13:7–10): it is no longer simply part of an overall continuum extending from the monarch’s family through the addressee’s family to anyone whomever. More important, the Deuteronomic author has deliber80

Similarly, Otto, Deuteronomium, 58. On textual reuse as formally marked by chiastic citation, see Levinson, Deuteronomy and the Hermeneutics of Legal Innovation, 17– 20. 81 The characteristic /, “in/from your midst” (Deut 13:2, 6, 12, 14, 15) corresponds precisely to Neo-Assyrian ina bertkunu, “in your midst,” in the Zakutu Treaty cited here in Figure 12.9 (rev., line 20 of tablet). The injunction to summary execution     , “But you shall surely kill him!” (Deut 13:10), employed only here in Deuteronomy and whose originality has therefore been challenged (Dion, “Deuteronomy 13,” 154) actually precisely represents Akkadian duku, “to kill.” That verb is well attested in VTE, where, paired with abtu, it prescribes the addressee’s duty summarily to “seize and kill” traitors (lines 126 –27, 138 –39, 139– 40, 160, 246, 254 –55, 305– 6, 306 – 7). For further examples, see Otto, “Treueid und Gesetz,” 29– 42. 82 I have prepared the normalization provided here. For the transcription (rev., lines 18 –27) on which it is based and the translation, see Parpola and Watanabe, Neo-Assyrian Treaties, 64. For a fuller commentary, see the valuable earlier edition by Simo Parpola, “Neo-Assyrian Treaties from the Royal Archives of Nineveh,” JCS 39 (1987): 161– 89, esp. 165–70.

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ately sharpened and extended the family focus of his source so as to deal specifically with intimacy. He specifies that the “brother” is a full brother:  %  , “your brother, son of your mother.” The appositional definition stresses the closest possible blood tie to the law’s addressee. By contrast, the same apposition in Esarhaddon’s Succession Treaty is never applied to the siblings of the addressee; it thus never functions as an intimacy term. Quite the opposite: applied instead to the royal family, it seeks to ensure the stability of the dynastic succession by requiring the oathtaker’s loyalty to the crown prince designate Ashurbanipal and a öu mar ummiöu, “his brothers, the sons of his [same] mother.”83 Conversely, when siblings are considered as possible sources of treason, whether betrayal by Esarhaddon’s own brothers or by the brothers of the addressee, the appositional definition is never employed.84 Moreover, in the entire Neo-Assyrian treaty corpus, comprising fourteen treaties, the formula in question is attested only in Esarhaddon’s Succession Treaty.85 The attestation of that formula only in this treaty increases the likelihood of its having been used as a literary model by the author of Deut 13. The Deuteronomic author further transforms his source by adding to the three terms that he has taken over (brother, son, daughter) an additional two (wife, friend), each of which intensifies the focus on intimacy.86 In the Neo-Assyrian treaties, the category “wife” is altogether absent as a conceivable source of conspiracy.87 Here she is not only included but appositionally defined in such a way as to underscore the bond of intimacy:   , “the wife of your bosom” (Deut 13:7). The Deuteronomic author’s inclusion of   , “the friend who is as your own self,” while based on the treaty material (see the Zakutu Treaty cited above), equally departs from it with the appositional definition that stresses the intimacy of the relation. 83

See VTE, lines 94, 103, 171, 270, 285, 497, 504, 516, 633. See VTE §10, lines 113, 115. 85 The other treaties refer to Mulliltu/Mullissu, the great mother of the pantheon (Treaty of Šamši-Adad V with Marduk-zakir-šumi, rev. line 5; Accession Treaty of Esarhaddon, rev. line 18) or to Zakutu, the Queen Mother (Zakutu Treaty, line 2, rev. lines 6, 11, 16, 26e) but never define the brother, whether of the crown prince designate or of the addressee, as “the son of your mother.” This analysis is based on the critical edition of the corpus provided by Parpola and Watanabe, Neo-Assyrian Treaties, 5, 22, 62– 64. 86 VTE attests a similar four-term string in its concluding sanctions (your wives, your brothers, your sons, your daughters; lines 586 – 87, 589– 90, 592– 93, 596 – 97, 636 A–B). 87 In the singular, rtu or aššatu designate either Mullissu (the mother goddess and wife of Aššur) or Esarhaddon’s wife (in the context of bearing a rightful heir). See both Accession Treaty of Esarhaddon, rev. line 18; and VTE, lines 250, 417 (Parpola and Watanabe, Neo-Assyrian Treaties, 22, 38, 45). 84

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The comparative evidence thus establishes how the Deuteronomic author created a test case unprecedented in the available treaty material, one that deals specifically with the conflict between love of family and devotion to God. By every rhetorical means available, the author has made the conflict the more poignant by isolating those for whom the addressee would feel the closest possible ties of blood and love. He defines the brother as the full brother, includes the son and the daughter, adds the wife, and rhetorically employs affective language: “the wife of your bosom or the friend who is as your own self.” The author has left behind the objective concern of the Neo-Assyrian treaties with concealment to address the subjective feelings of love and the consequent risk that the addressee will tolerate rather than extirpate the incitement to apostasy. The author has departed from the very cuneiform literary model that he has here redeployed in order to create a distinctive unit whose thematic focus is intimacy.

Conclusions Even in those cases where the LXX translator may have based his variant on a Hebrew Vorlage that can be externally corroborated in the material from Qumran, that does not release the text critic from the burden of assessing the quality and the originality of that variant.88 The mere existence of the Hebrew Vorlage does not in itself grant the variant the status of a reading, let alone a superior reading. What is attested in this case is a vital moment in the history of the reception and transformation of the biblical text in the Second Temple period. The various versions open a window into the rich afterlife of the biblical text. But a weaker reading, even one attested in Hebrew, is still a weaker reading. The MT of Deut 13:7a offers the superior text, in both text-critical and exegetical terms.89 The author identifies the closest possible relations of the addressee so as to isolate the conflict between blood and religion, between love and God, as precisely the context where loyalty to God hangs in the breach. The expanded text represented by the LXX, Samaritan Penta88 For that reason, the argument here is not intended as a general plaidoyer on behalf of the MT or even on behalf of the MT of Deuteronomy, which elsewhere, as in the Song of Moses, is almost certainly much less conservative than the LXX and the evidence from Qumran (i.e., Deut 32:8, 43). 89 König already saw the issues perfectly, rejecting the expanded text of the LXX/SP as “eine Trivialität” (Deuteronomium, 123). He correctly recognized this law as a testcase involving the closest degrees of intimacy, with the uterine brother representing consanguinity. For that reason, he astutely renders the protasis: “Wenn [sogar] dein Bruder . . .”

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teuch, and 4QDeutc harmonizes the specific challenge to loyalty here with the more complete genealogical series found in the incest laws. Whether as halakic midrash or as simple translation model ready at hand, the “missing” sibling relation is thus supplied. But with it is dissolved the precise focus of the original text: the author’s isolation of the most intimate relations to stress the necessity, even at the cost of summarily executing the person one most loves, of placing loyalty to Yahweh above all else. Despite the late date of the MT chronologically, the text of Deut 13:7 that it witnesses is more original, in text-critical terms, than the chronologically much earlier witnesses of the LXX, Samaritan Pentateuch, 4QDeutc, and the Temple Scroll. Methodologically similar is the paradox whereby the MT of Isaiah preserves an earlier textual witness than does 1QIsaa, despite the latter scroll’s chronologically preceding the former by more than a millennium.90 In its orientation, the MT fits perfectly within the intellectual frame of reference of the preexilic period and, with its focus on legal sanctions against incitement, conforms to the literary model provided by the Neo-Assyrian state treaties of the eighth and seventh centuries B.C.E. In contrast, the textual plus—which lacks all preexilic attestation— belongs to the reception history of the biblical text. The versions that preserve the plus witness the extent of Second Temple reflection upon and reinterpretation of the biblical text: communities of study seeking to systematize and update the text, communities with common traditions of exegesis that bridge Alexandrian Judaism, the Samaritan community, and the Judean Desert community.

90

See Edward Yechezkel Kutscher, The Language and Linguistic Background of the Isaiah Scroll (1QIsaa) (indices and corrections by Elisha Qimron; 2 vols.; STDJ 6 – 6A; Leiden: E. J. Brill, 1974 –1979), 1:77. Kutscher accounts for that phenomenon by arguing that “popular” texts used for study, whether at home or in the synagogue, were less carefully protected from “corruption” than were “model” texts, preserved in the temple or synagogue (pp. 78 –79). He deems 1QIsaa a “popular” text and contrasts it with 1QIsab, a “model” text that is practically identical to the MT (p. 85). His explanation, however, involves a circular argument. Since both Isaiah scrolls have the same provenance, the basis for determining which is the “popular” and which is the “model” text seems to rely upon a criterion that is anachronistic: that is, proximity to the later standard of the MT.

7. Recovering the Lost Original Meaning of     (Deuteronomy 13:9) Using the technical rhetoric of ancient Near Eastern treaties, the author of Deuteronomy 13 dramatically establishes that loyalty to Yahweh as divine suzerain must preempt all other commitments and affective ties, even those of conventional religious authority, family love, and clan solidarity.1 The three laws in the chapter were carefully chosen; each represents a limiting or defining case that sequentially juxtaposes these competing cultural values with devotion to God. The laws deal consistently with apostasy. The first two involve incitement: either from a prophet or interpreter of dreams (13:2–6) or from a family member, spouse, or close friend (13:7– 12). The third concerns the successful conversion to apostasy of an entire city (13:13–18). In each of these situations, it is extremely difficult for a state to impose legal controls that run counter to the basic instincts of its citizens. As a mediator of divine communications, a prophet or oneiromancer would by definition possess public credibility and authority. In the private sphere, the ties of love to a close family member, beloved wife, or intimate friend make it unlikely that one would ever take stringent action against them for sedition or heresy. Quite the opposite: one is the more susceptible to their proposals. And in the sphere of clan life, little could be more horrifying and socially divisive than to have to “enter into battle against our kin” (Judg 20:23, 28). Because these three cases of apostasy expose those areas where society is most vulnerable, stringent countermeasures must be taken: capital punishment of the prophet or family member and a  (“holy war”) against the city. The goal is to extirpate apostasy from the Yahwistic 1 The suzerain has a historical claim on the people (v. 11); the people consequently owe the suzerain their love ( ) (v. 4), must follow him (  ) alone (vv. 5, 6), must fear ( ), obey ( ) (vv. 5, 19) and cleave () to him (v. 5). For the treaty background of these key terms and concepts, see William L. Moran, “The Ancient Near Eastern Background of the Love of God in Deuteronomy,” CBQ 25 (1963): 77– 87; repr., idem, The Most Magic Word: Essays on Babylonian and Biblical Literature (ed. Ronald S. Hendel; CBQMS 35; Washington: Catholic Biblical Association, 2002), 170 – 81. See also Moshe Weinfeld, Deuteronomy and the Deuteronomic School (Oxford: Clarendon, 1972; repr., Winona Lake, Ind.: Eisenbrauns, 1992), 81– 91.

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community and to provide an example whose shock value would prevent any repetition of the incitement (Deut 13:12). Recent scholarship has stressed the Josianic context and, in particular, the Assyrian crisis, as explaining the severity of these laws. Weinfeld was the first to demonstrate the resemblance of these provisions to Hittite and Neo-Assyrian treaties.2 Indeed, Deuteronomy 13 betrays almost verbatim dependence on §10 of the Vassal Treaty of Esarhaddon (672 B.C.E.), which also exacts absolute loyalty, even in the face of conspiracy from a kunu mar kunnu mart kunu l ina pî rgimi maê mr öili, “your brothers, your sons, your daughters, or from the mouth of a prophet, an ecstatic, or an inquirer of oracles.”3 Judean authors adapted this Neo-Assyrian vassal treaty motif, here to make Yahweh the suzerain to whom absolute loyalty is owed, even when that loyalty conflicts with ties to conventional religious authority or to family. In clarifying the legal background and literary sources of Deuteronomy 13, however, scholarship has overlooked a fundamental problem of Hebrew lexicography. The chapter’s second law reads: (7) If your brother, the son of your mother, or your son, or your daughter, or the wife of your bosom, or your friend who is as your own soul, entices you secretly, saying, “Let us go and worship other gods”—whom neither you nor your fathers have known . . .—(9) Do not assent to him or give heed to him! Let your eye not pity him nor shall you show compassion     4 (10)—but you shall surely kill him! . . . (Deut 13:7–10)

The concern of this chapter is with the meaning of    . The translates this negative imperative as “nor shall you conceal him.” The same understanding of the idiom is present in the new Jewish Publication Society Tanakh, “you shall not shield him.”5 The NRSV is essentially iden-

RSV

2

Weinfeld, Deuteronomy, 94– 98; see also his “The Loyalty Oath in the Ancient Near East,” UF 8 (1976): 379– 414. His insights have been extended by Paul E. Dion, “Deuteronomy 13: The Suppression of Alien Religious Propaganda in Israel during the Late Monarchical Era,” in Law and Ideology in Monarchic Israel (ed. Baruch Halpern and Deborah W. Hobson; JSOTSup 124; Sheffield: JSOT Press, 1991), 147–216. Dion’s article is invaluable for its detailed attention to linguistic, redactional, and comparative issues. Note the recent argument for a postexilic date by Timo Veijola, “Wahrheit und Intoleranz nach Deuteronomium 13,” ZTK 92 (1995): 287–314. 3 See the excellent edition of Simo Parpola and Kazuko Watanabe, eds., NeoAssyrian Treaties and Loyalty Oaths (SAA 2; Helsinki: Helsinki University Press, 1988), 33 (lines 115–16). Also valuable is Kazuko Watanabe, Die adê-Vereidigung anlässlich der Thronfolgeregelung Asarhaddons (Baghdader Mitteilungen: Beiheft 3; Berlin: Gebr. Mann, 1987), 148, whose normalization I have followed. 4 Verse numbering follows the MT; most English translations follow the different enumeration of the LXX, where this unit would be Deut 13:6 – 9. 5 Tanakh: The Holy Scriptures. The New JPS Translation according to the Traditional Hebrew Text (Philadelphia: Jewish Publication Society, 1988), 296.

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tical: “do not shield him.” So are the major German translations, the most vivid of which is the ecumenical Einheitsübersetzung: “Du sollst . . . die Sache nicht vertuschen.”6 The source of these modern translations of the verb lies in the LXX: ouj mh; skepavsh/" aujtovn “you shall not conceal/shield him.”7 The Vulgate renders the Hebrew similarly: et occultes eum, “(nor) shall you conceal him.”8 The common idea underlying these renderings, ancient and modern, is that the law forbids its addressee from concealing or shielding the inciter from disclosure to the outside world. My question is whether these translations, ancient and modern, accurately reflect the semantic force of the Hebrew idiom piel  + preposition . Even on the face of it, there is reason for doubt. Every other verb in the five-verb series in Deut 13:9 concerns the subjective response of the law’s addressee: not to accede to or obey in the first pair (       ) and then, in the following triplet, to withdraw the ties of kinship and the bonds of emotion (           ). It is surprising that alone in the final verb of the series the addressee, suddenly now looking over his shoulder to society at large, should be commanded not to conceal or shield—when both previous verbs deal specifically with the internal feelings of pity and compassion for someone whom you love. The importance of resolving this issue is not simply lexicographical but text-critical and exegetical. In the immediate continuation, whereas the MT reads     , “rather shall you kill him!” (Deut 13:10), the LXX 6

Einheitsübersetzung (Stuttgart: Katholische Bibelanstalt, 1980). The revised Lutherbibel renders similarly: “und seine Schuld nicht verheimlichen” (Die Bibel [Stuttgart: Deutsche Bibelgesellschaft, 1989]). 7 According to Hatch-Redpath, there is only one other case in which the infinitive skepavzw translates piel  . In Isa 51:16, the Hebrew syntax employs an accusative complement rather than a prepositional construction:        , “I place my word in your mouth and cover you with my shadow.” The Greek verb in this case provides an interpretation of the Hebrew metaphor: “I shield you. . . .” The same Greek verb renders the Hebrew substantive   (“refuge, shelter”) at Ps 61:4. See Edwin Hatch and Henry A. Redpath, A Concordance to the Septuagint and the Other Greek Versions of the Old Testament (Including the Apocryphal Books) (2 vols; Oxford: Clarendon, 1897; suppl., 1906; repr., 3 vols. in 2; Grand Rapids, Mich.: Baker, 1983), 2:1268– 69. 8 Bonifatius Fischer et al., eds., Biblia Sacra iuxta Vulgatam versionem (3d ed.; Stuttgart: Deutsche Bibelgesellschaft, 1983), 254. In contrast to the Greek and Latin, the Samaritan Pentateuch, as well as Tgs. Pseudo-Jonathan and Neofiti 1 (  %  ), which simply retain the Aramaic equivalent of the Hebrew, do not shed light on the meaning of the idiom. Neofiti is cited according to Alejandro Díez Macho, Neophyti 1: Targum Palestinense Ms de la Biblioteca Vaticana, vol. 5: Deuteronomio: Edición príncipe, introducción y versión castellana (Textos y Estudios 11; Madrid: Consejo Superior de Investigaciones Científicas, 1978), 5:495.

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reads ajnaggevllwn ajnaggelei'" peri; aujtou' “you shall report him” (LXX Deut 13:9).9 That reading, retroverted to Hebrew *     , is almost universally accepted as original (see BHK 3 and BHS).10 It has even been incorporated into the text of the Einheitsübersetzung. This approach assumes that the MT’s stipulation amounts to lynch law and does not provide a proper contrast to “you shall conceal him.” The LXX antithesis is thought superior because it eliminates any hint of cold-blooded murder: “(8) Do not conceal him (9) but *report him.” The reading is also thought to be confirmed by Neo-Assyrian treaty texts.11 Despite the tempting moral superiority of the emendation, both the text-critical and the Akkadian evidence are far more ambiguous than has previously been recognized, as I argue in the following chapter.12 All previous investigations had considered only the LXX, without taking all of the available witnesses into account, the sine qua non for valid text-critical work. Once that is done, it becomes clear that this particular LXX rendering is but one of a chorus of mutually inconsistent attempts by the versions to wrest the MT into conformity with due judicial process. Each does so in a different way. The inconsistent testimony of the versions allows no common text to be reconstructed. Accordingly, the LXX rendering represents a legal revision consistent with Second Temple Jewish law; it does not preserve an original reading. Moreover, the Neo-Assyrian treaties employed to support the LXX variant also contain important provisions, previously overlooked, that require summary execution of traitors. On that account, both the text-critical and the Assyriological evidence actually support the MT. Here I shall focus on the related question of whether “you shall not conceal him” is a justified rendering of the Hebrew    . I con9

In verse numbering LXX Deut 13:8– 9 = MT Deut 13:9–10. The variant, with the Hebrew retroversion, was noted by August Dillmann, Die Bücher Numeri, Deuteronomium, und Josua (2d ed.; Kurzgefasstes exegetisches Handbuch; Leipzig: S. Hirzel, 1886), 301. He understood the LXX variant as supplying what is procedurally to be expected—due process—in a capital case but did not emend the MT. That astute circumspection was rapidly overlooked in subsequent discussions. August Klostermann urged the adoption of the reading, explicitly harmonizing this passage with the rules of Deut 17:4 (Der Pentateuch [new series; Leipzig: M. Deichert, 1907], 277). The strongest arguments for the emendation were provided by D. Karl Budde, whose article is a rhetorical masterpiece (“Dtn 13 10, und was daran hängt,” ZAW 36 [1916]: 187– 97). 11 Weinfeld, Deuteronomy, 94– 98. Dion attempts to provide further justifications on stylistic grounds and cites additional cuneiform material (“Deuteronomy 13,” 154). 12 See Bernard M. Levinson, “ ‘But You Shall Surely Kill Him!’: The Text-Critical and Neo-Assyrian Evidence for MT Deut 13:10,” in Bundesdokument und Gesetz: Studien zum Deuteronomium (ed. Georg Braulik; Herders Biblische Studien 4; Freiburg: Herder, 1995), 37– 63; repr., ch. 8 infra. 10

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tend that it is not. This nearly universal translation actually presupposes not simply the LXX rendering but the completely different legal procedure contemplated by the Jewish authors of the LXX, who were concerned to revise the MT in order to introduce due process as the precondition of execution. Proper lexicographic method can recover the original meaning of this Hebrew idiom, which has been obscured because of the overlay of ancient harmonistic legal exegesis.

Auf dem semantischen Holzweg August Dillmann rendered     (Deut 13:9) as “ihn nicht bedecken, im Sinne der Verheimlichung durch Schweigen (Ps. 32,5. 40,11).”13 Dillmann’s suggestion that the verbal idiom means “covering through silence,” recapitulates, nearly verbatim, the position of ancient rabbinic harmonistic exegesis, both in the Sipre and in medieval commentary.14 The tradition of Jewish law cannot read Deut 13:9 –10 except through the lens of the normative requirement of two witnesses for conviction.15 What the critical scholar shares with his rabbinic predecessors, 13

Dillmann, Numeri, Deuteronomium, 301. As Ibn Ezra comments: , %  ,  %      .    [“But you shall reveal the matter, until the ‘witnesses’ (Deut 17:6) can hear it from his own mouth, for thus it is written: and (only) then ‘You shall kill him’ ” (Deut 13:10).] See his Commentary on The Torah (ed. Asher Weiser; 3 vols.; Jerusalem: Rav Kook Institute, 1977), 3:253 (Hebrew, my translation). His comment makes the command of v. 10, “you shall kill him,” contingent on due judicial process involving (1) prior public indictment and (2) the operation of witness law. He thus exegetically asserts that a complete legal trial has taken place between the end of v. 9 and the beginning of v. 10, after which alone ( ) the command to kill is morally defensible in terms of Jewish law. The original command to act in the heat of the moment has now become a judicial sentence; any hint of summary execution has been completely removed. Dillmann’s presentation is nearly identical. In citing “you shall surely kill him,” he glosses, “natürlich nachdem er angezeigt u. verurtheilt ist” (Numeri, Deuteronomium, 301). Dillmann’s reference to “covering” in terms of silence as the means of concealment is already found in the Sipre Deut 13:9, pisqa 89 (Louis Finkelstein, ed., Siphre ad Deuteronomium: H. S. Horovitzii schedis usus cum variis lectionibus et adnotationibus editit [Corpus Tannaiticum 3.3; Berlin: Jüdischer Kulturbund, 1939; repr., New York: Jewish Theological Seminary of America, 1969], 152). 15 As specified in Deut 17:6; 19:15; and Num 35:30; see further Levinson, “But You Shall Surely Kill Him!,” 51–54. On Deut 17:6 – 7 as a deliberate revision of Deut 13:10, see Bernard M. Levinson, Deuteronomy and the Hermeneutics of Legal Innovation (Oxford and New York: Oxford University Press, 1997), 118 –23. So problematic is this case of incitement which is conducted “in secret” (Deut 13:7)—in the absence of witnesses—that Jewish law here sanctions an exceptional departure from the legal norm. This case is unique among all capital cases in permitting entrapment. Paradoxically, the 14

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whom he does not cite, is the assumption that the Deuteronomic legislator requires due legal process: do not conceal the inciter through silence but report him so that proper judicial action can be initiated. Since Dillmann’s work, the meaning of the Hebrew idiom seems more often confidently to be assumed than to be investigated. Granted, the two prooftexts Dillmann adduces, to which Prov 28:13 should be added, do, without doubt, confirm that piel  can denote “to conceal” (through silence). Further, it can have verbal communication as its antithesis, as in the LXX rendering of Deut 13:9–10 (= LXX Deut 13:8–9). In Ps 32:5, the speaker affirms,      $, “My sin, I make known to You; and my iniquity, I do not conceal.”16 Similarly, in Ps 40:11a, the speaker uses antithetic parallelism consisting of negative  contrasted with a verb of speech:        , “I have not concealed Your righteousness within me; I have declared Your faithful deliverance.” Nonetheless, these prooftexts are all semantically inappropriate for the determination of the meaning of the verb in Deut 13:9. In both cases, as well as in Prov 28:13, the piel verb is construed with an accusative direct object. In Deut 13:9, however, there is no direct object. The verb is instead construed with prepositional . The translation “do not conceal him” is therefore based on what the verb justifiably means in a completely differ-

deviation from the legal norm preserves a higher legal norm. It preserves the defendant’s right to be protected from conviction on the basis of unproven accusations. It affirms the principle that conviction must rather be based on due process: conviction requires the testimony of two witnesses, not just the single individual secretly addressed by the inciter. The entrapment involves attempting to trick the inciter into repeating his or her original incitement in the presence of hidden witnesses and then, after a protest, seeing whether he or she reaffirms the desire to abandon God. Absent both the repetition and the reaffirmation, the inciter is not liable. The unique status of this case is made explicit by m. Sanh. 7:10:  # , %  %     , “[T]hey may not place witnesses in hiding against any that become liable to the death-penalties enjoined in the Law save in this case alone” (for vocalized Hebrew, see Chanoch Albeck and Henoch [Hanokh] Yalon, “Sanhedrin,” in Seder Nizikin [The Order of Damages], vol. 4 of Shishah sidre Mishnah [The Six Orders of the Mishnah] [6 vols.; 2d ed.; Jerusalem: Bialik; Tel Aviv: Dvir, 1977], 163–210 [at 194]; for the translation, see Herbert Danby, The Mishnah [Oxford: Oxford University Press, 1933], 393). The identical position is maintained by Moses Maimonides (1135–1204) in his authoritative codification of Jewish law, the Mishneh Torah, book 1, “The Book of Knowledge,” ch. 5, “The Laws of Idolatry,” paragraph 3; see Maimonides, Mishneh Torah: The Book of Knowledge (ed. and trans. Moses Hyamson; Jerusalem: Feldheim, 1981), 71b. 16 The verb takes the object  (“transgression”) in Job 31:33; Prov 17:9; 28:13, and means “to cover” or “to conceal.” Only in the last case, however, is there the antithetical parallelism involving a form of speech.

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ent semantic construction that is irrelevant to the case at hand.17 In the century of exegetical literature subsequent to Dillmann, the meaning of the syntagm   in Deut 13:9 has not been investigated.18 Nor has it even been recognized that a problem of lexicography, let alone of exegesis, exists. Essential to any determination of meaning is an analysis of what a given verb means in combination with a particular preposition. The importance of this method has been demonstrated by Dennis Pardee’s work in Ugaritic and has been stressed for Hebrew by Jesus Arambarri and Bruce Waltke and Michael O’Connor.19 In what follows, I shall attempt to arrive at the correct meaning of     by collecting the attestations of the piel verb combined with the preposition.

The Lexicography of Piel  

There are a total of fifteen attestations of this syntagm in the Hebrew Bible.20 In almost all of these cases, the verb means literally or physically “to cover over,” with the preposition introducing that which is covered. Most frequently, that which is covered over is inanimate:

17 Lexicographic confusion results when meaning is divorced from analysis of syntax. It is misleading when Eliezer Ben Yehuda groups Gen 18:17 with Deut 13:9 (A Complete Dictionary of Ancient and Modern Hebrew [8 vols.; New York/London: Thomas Yoseloff, 1960], 3:2458 [Hebrew]), despite the different syntax of the verb in each case, and suggests that they are identical in meaning. Similarly, Helmer Ringgren attempts to distinguish different meanings of the verbal stem without, however, providing any grounds for their differentiation (ThWAT 4:271–77, s.v.  ). The article does not take syntax into account. 18 Samuel E. Ballentine is primarily concerned with the words associated with the hidden deity (“A Description of the Semantic Field of Hebrew Words for ‘Hide,’ ” VT 30 [1980]: 137–53). Accordingly, he does not address this syntagm. 19 That specific verb/preposition combinations have idiomatic function is stressed by Dennis Graham Pardee, “The Preposition in Ugaritic,” UF 7 (1975): 329–78; 8 (1976): 215–322 (at 7:337). Within Hebrew studies, Jesus Arambarri provides an exemplary study of how syntax, and especially prepositions, specifies verbal meaning (Der Wortstamm ‘hören’ im Alten Testament: Semantik und Syntax eines hebräischen Verbs [SBB 20; Stuttgart: Katholisches Bibelwerk, 1990], 33–179). See also Bruce K. Waltke and Michael O’Connor, An Introduction to Biblical Hebrew Syntax (Winona Lake, Ind.: Eisenbrauns, 1990), 190. 20 Lev 4:8 and Job 36:32 are overlooked in the list of this idiom provided by Abraham Even-Shoshan, A New Concordance to the Bible (Jerusalem: Kiryat Sepher, 1982), 553, which should be revised accordingly.

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II. The Paradigm of Legal Hermeneutics: Close Studies and Test Cases 1. Ezek 31:15

   

I covered it [Sheol] over with the Deep21 2. Hab 2:14

         #    22 For the earth will be filled with the knowledge of the Glory of Yahweh, as the waters cover over the sea

3. Mal 2:16

    

[I hate] covering one’s garment over with violence23 4. Job 36:32

   

He [Yahweh] covers his palms over with lightning 5. 2 Chr 5:8

%      

The Cherubim covered over the ark24

In the two examples that follow, that which is covered refers to exta, whether animal entrails or blood. Although example 6 is very frequently, on the basis of the versions, emended to an accusative construction, there is good reason to retain the MT. Its prepositional construction seems rather to preserve an older accusative of means that is elsewhere normalized.25 In example 7, the preposition defines a spatial relationship. 21 The LXX does not appear to reflect  ; the verb is therefore sometimes deleted by commentators on text-critical grounds. The translation here construes   as accusative of instrument, on analogy with Deut 8:3 (%   ); see Waltke and O’Connor, Biblical Hebrew Syntax, 176 (§10.2.3e). 22 Similarly in Isa 11:9, but without the preposition. 23 As is common, reading the verb as an infinitive construct. 24 Parallel formulations employ the root  (1 Kgs 8:7; 1 Chr 28:18). In each case, the image is identical: the wings of the Cherubim extend over the ark to serve as a throne for the deity. For the language and symbolism, see Menahem Haran, Temples and Temple-Service in Ancient Israel: An Inquiry into the Character of Cult Phenomena and the Historical Setting of the Priestly School (Oxford: Clarendon, 1978; repr., with new preface and corrections, as Temples and Temple-Service in Ancient Israel: An Inquiry into Biblical Cult Phenomena and the Historical Setting of the Priestly School [Winona Lake, Ind.: Eisenbrauns, 1985]), 252–53. Ringgren’s supposition (ThWAT 4:275), not noting Haran’s work, that the verb in 2 Chr 5:8 means “protect” should be corrected. 25 The textual witnesses construe the verb here with the direct object rather than the preposition: so LXX, Samaritan, Tgs. Onqelos and Pseudo-Jonathan. Moreover, everywhere else the formula appears, it is similarly construed with the direct object: Exod 29:13, 22; Lev 3:3, 9, 14; 7:3. Nevertheless, it is not clear that the MT should be emended. Elsewhere, too, in texts that commonly render the same basic formula concerned with blood rituals, the verb, construed with the prepositional indirect object has, as a parallel, a form construed with the direct object: compare Ezek 24:7 (example 7)

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6. Lev 4:8

     

the suet that covers over the entrails 7. Ezek 24:7

    #     

She [Jerusalem] did not pour it [blood] out upon the ground, to cover it over with dust

Elsewhere, that which is covered refers to the human body: whether as corpses, as in examples 8 and 9 below, or as rebels buried alive for their misdeeds (examples 10 and 11, involving Korah and Abiram respectively). In example 12, it refers to the punishment by Yahweh of a community that asserts its innocence. 8.

Isa 26:21

      

it [the earth] shall no longer cover over its slain 9.

Job 21:26

   

worms cover them [the dead] over 10. Num 16:33

#   

the earth covered them over 11. Ps 106:17

   

[the earth] covered over the party of Abiram 12. Ps 44:20

  

and you covered us over with deep darkness

In all of these cases, the idiom denotes an actual, physical covering over. That which is covered is an object, usually physical and insentient (examples 1–5), no longer sentient (6 – 9), or, when living, judged nevertheless, by means of extraordinary punishment, as if already insentient (10 –11). Even in the last example, where the darkness is metaphorical for punishment and isolation, the verb continues to function in its spatial meaning. Moreover, in all cases a physical covering agent is specified or implied: whether water, blood, lightning, cherub wings, suet, earth, worms, or darkness. This actual physical covering over is semantically not appropriate to help determine the meaning of Deut 13:9.

with Lev 17:13b (     ). As such, the versions seem simply to normalize the old Semitic accusative of means into a more standard prepositional construction; they do not provide reason to retrovert the MT.

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Two other passages come closer to the mark. In both cases, the verb cannot refer to a literal covering over. Antithetical parallelism helps clarify the idiom’s meaning: 13. Prov 10:1226

         

Hatred stirs up strife, but love “condones” all transgressions.

The chiastic parallelism (A:B:C :: C:B:A) counterpoises not simply hate and love but, more profoundly, how a human being experiences and responds to wrongdoing under the influence of each. Within a love relationship, behaviors that otherwise cause someone “to fly off the handle,” are instead tolerated, overlooked, understood,26excused.27 The ideal of moral instruction in Proverbs emphasizes restraint: rash response to provocation is to be avoided.28 Confronted by moral or religious wrongdoing, 26 Completely bereft of philological justification is the attempt by Mitchell Dahood, “Una Coppia di Termini Ugaritici,” BeO 15 (1973): 253–54, to eliminate the preposition from the verse. His argument that the syntagm is otherwise unattested in Proverbs is irrelevant, given its clear attestation in classical Hebrew. Moreover, the benefit of the emendation is unclear. Unhappy with an attested idiom, he replaces it with a proposed hendiadys that would also be unique in Proverbs—but which has no attestation whatsoever in Hebrew. He offers no evidence for his claim that MT  can equal  (“injustice”), which is the word he requires for the hendiadys. On Dahood’s tendency to play fast and free with prepositions, see Waltke and O’Connor, Biblical Hebrew Syntax, 190 and n. 8 for literature. 27 The thought expressed here has a parallel in Prov 17:9:     , “He who forgives an offense seeks love” (RSV) or “He who seeks love overlooks faults” (NJPS). Although the parallel is not grammatically precise, since the verb is construed with the accusative rather than the preposition, the semantic context is otherwise very similar:  (“offense”) is the object of what is covered up, and  (“love”) provides the context for the action in which one covers up the wrongdoing of the other. “Cover up” here is very close in its meaning to disregard, overlook, or forgive. For a different analysis of Prov 10:12, see Rolf Knierim, Die Hauptbegriffe für Sünde im Alten Testament (Gütersloh: Mohn, 1965), 119–23. He problematically bases his claim that the syntagm here denotes “hush up” (verschweigen, vertuschen) on the different semantics of the verb as found in Prov 32:5 (p. 123). 28  %        , “A fool is one who allows his anger to be made known on the (very) day, while he who overlooks an insult is wise” (Prov 12:16). On the tolerative function of the nipal, see Waltke and O’Connor, Biblical Hebrew Syntax, 389– 90. For the rendering of the adverb, see also Neh 3:34. As was true of the piel construction in Prov 10:12, the qal participle here carries a primarily emotional or psychological force. On the semantic principle, see Ernst Jenni, Das hebräische Piel: Syntaktisch-semasiologische Untersuchung einer Verbalform im Alten Testament (Zurich: EVZ-Verlag, 1968), 204 –5, 275. “The issue is not that the disgrace is permanently forgotten and that the recognition is permanently concealed; rather, that the immediate, rash reaction of the fool should be avoided”; so Jenni, Piel, 204 (my translation).

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even directed against oneself, wisdom and love involve patience rather than immediate reaction and lead in the direction of not taking the wrongdoing into account.29 That love might allow you to condone wrongdoing is precisely what the legislator of Deut 13:9 seeks to prevent. The legislator exhorts the law’s addressee not to succumb to such feelings in the case of incitement to apostasy: to cauterize them so that immediate action can be taken. The same issue arises in the next example, excerpted from Nehemiah’s memoirs. The theological version of the self-restraint stressed by Proverbs is the divine attribute of mercy. Nehemiah, under the perilous conditions of attempting to rebuild the community of Yehud, prays that God will be a God of justice, not of mercy. He cites the calumny perpetrated by SanballaÅ the Horonite and Äobiah the Ammonite against the attempt by the returnees to rebuild the walls of Jerusalem (Neh 3:33–35; cf. 2:10; 2:19; 4:1–2). That Jerusalem was unwalled and consequently vulnerable to attack made the hostility of SanballaÅ’s party all the more threatening. Lacking other means of defense, Nehemiah can only counter with a prayer to God. He urges that these threats be turned against their issuers: 14. Neh 3:36 –3730

           #         . . .   "    $

(36) Hear, O our God, how we have become an object of scorn! Turn their taunt back upon their heads and give them up for spoil in a land of captivity! (37) Do not “cover over” their iniquity nor allow their sin to be blotted out from before you . . .

Nehemiah commands God to withhold the divine attribute of mercy. In v. 37, the chiastic parallelism (A:B :: B:A) suggests that, just as % (“iniquity”) is synonymous with  $ (“sin”), so is     semantically equivalent to   "  , “may [their sin] not be blotted out.” Underlying the parallelism is the idea that by overlooking the iniquity, or allowing the sin to be blotted out, God would permit wrongdoing to go unpunished. Thus, there is clear evidence that   , conversely, can mean “to cover 29

That love replaces dissension with harmony—with solidarity and compassion for the other—explains why Prov 10:12 is cited in its LXX version in 1 Pet 4:8. The early Christian community from which the letter originates understood the strife of the endtime already to have begun, and the proverb offered a model of solace: of communal organization constituted by love. 30 Neh 4:4 –5 in English versions.

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over” in the specific sense of actively to overlook or disregard, in effect, “to condone.” For this reason, both Jacob Myers and H. G. M. Williamson correctly translate: “Do not forgive their iniquity.”31 Nehemiah urges God to repay the antagonists with talionic justice. Those who have made the new community into a  (“an object of scorn”) are themselves to become  (“plunder”) in a land of  (“captivity”). The literary skill with which Nehemiah expresses his call for divine justice is not restricted to this assonance, whereby wordplay works fate. In his moment of desperation, Nehemiah employs elements of the classical lament form in the Psalms (44, 74, 79).32 He opens with the direct address to God,  , specifies the complaint,   

(v. 36aa), and then issues the petition in which he calls for the divine punishment of his enemies (vv. 36ab–37). In his reapplication of the lament form, Nehemiah appropriates, almost word for word, an earlier call for vindication by the prophet Jeremiah. With members of his own community plotting against his life, Jeremiah, in one of his confessions, urged God to execute judgment:

    $      Do not forgive their iniquity, nor blot out their sin from before you. (Jer 18:23a)

    $      Do not forgive their iniquity nor allow their sin to be blotted out from before you. (Neh 3:37a)

The petitions are nearly identical, except that Nehemiah replaces the syntagm   with   .33 Nehemiah’s substitution of the one idiom for the other has semantic significance: both idioms express forgiveness.34 31

Thus, identically, both Jacob M. Myers, Ezra, Nehemiah (AB; Garden City, NY: Doubleday, 1965), 121; and H. G. M. Williamson, Ezra, Nehemiah (WBC 16; Waco: Word Books, 1985), 213. 32 Williamson, Ezra, Nehemiah, 215, 217. 33 He also uses an intransitive rather than a transitive form of the final verb. On the otiose yod in  (Jer 18:23), as observed by Rashi, see GKC §75ii; and William McKane, A Critical and Exegetical Commentary on Jeremiah, vol. 1: Introduction and Commentary on Jeremiah I–XXV (ICC; Edinburgh: T. & T. Clark, 1986), 1:441. 34 Baruch A. Levine, In the Presence of the Lord: A Study of Cult and Some Cultic Terms in Ancient Israel (SJLA 5; Leiden: E. J. Brill, 1974), 57–58; and Bernd Janowski, Sühne als Heilsgeschehen: Studien zur Sühnetheologie der Priesterschrift und zur Wurzel KPR im Alten Orient und im Alten Testament (WMANT 55; Neukirchen: Neukirchener Verlag, 1982), 99–100. Alternatively, the substitution could have taken place if, as some maintain, the root etymological meaning of  is “to cover over,” for which Arabic IIform kaffara provides some evidence; see Johann Jakob Stamm, Erlösen und Vergeben im Alten Testament: Eine begriffsgeschichtliche Untersuchung (Bern: A. Francke, 1940), 72. Levine (Presence of the Lord, 59, 123–27) and Janowski (Sühne, 29– 60) establish on

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Perhaps Nehemiah cited Jeremiah’s call for judgment freely, from memory, and thereby introduced a functionally synonymous form.35 More likely, Jeremiah’s formulation, reflecting his own priestly lineage, draws on technical terminology. At a certain point in the growth of the priestly literature, the syntagm   came to have a specific technical meaning within the cultus: “to perform a rite of expiation,” either “for” or “upon.”36 It may well be that Nehemiah shied away from using such technical priestly language and substituted lay terminology to express the idea of divine forgiveness:   . The attestation of this idiom in Nehemiah’s prayer is particularly relevant to Deut 13:9. These are the only two cases of negative imperative   in the Hebrew Bible. Deut 13:9, construed with , mandates a prohibition with enduring, legislative significance. The vetitive  of Neh 3:37, construed with a second person jussive, emphasizes the urgency of the speaker’s plea.37 Every other example in cases 1–13 involved declarative clauses in the indicative mood. The community faces an emergency: the triple imperative of Neh 3:36 amounts to an urgent call for immediate action. God, the addressee, must personally intervene to bring about retribution before it is too late.38 The disjunction in v. 37, with the two negative imperatives, urges God not to remain passive in the face of a clear threat to the community. Deut 13:9– 10 reveals an almost identical structure, although in reverse order. The series of five negative imperatives in v. 9 forbids any form of solidarity with the inciter to apostasy. Here it is the human addressee who is forbidden to surrender to the feelings that would permit him, on account of love, to condone the apostate. And once again the disjunction in v. 10, with the infinitive absolute as intensifier, commands immediate action by the addressee, who must summarily execute the inciter.

the basis of Akkadian evidence, however, that the verb’s root meaning is “to wipe away” and that the Arabic represents a later development. 35 Knierim, Hauptbegriffe für Sünde, 224 n. 100. 36 Jacob Milgrom, “/  ,” Leš 35 (1970): 16 –17 (Hebrew); Levine, Presence of the Lord, 63– 67; and Janowski, Sühne, 185 n. 5. Milgrom argues (against Janowski) that the syntagm more often means “purge” and that its meaning varies according to semantic context; see his Leviticus 1–16 (AB 3; New York: Doubleday, 1991), 1079– 84. 37 On the different functions of the two negatives, see Waltke and O’Connor, Biblical Hebrew Syntax, 567. 38 In his discussion of Nehemiah’s call for vengeance, Williamson inserts a gratuitous affirmation of Christian supersessionism that is inconsistent with the ethic of love there propounded (Ezra, Nehemiah, 218 –19).

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Nuances I would like to anticipate two possible objections to this analysis. First, both Prov 10:12 and Neh 3:37 are construed with abstract nouns:  

%/, “condone, forgive transgression/iniquity.” In contrast, in Deut 13:9 the third person pronominal suffix—“him”—on the preposition in     refers back to the inciter. Here the syntagm is therefore construed with a human object, not an abstract one.39 This difficulty can be solved indirectly. In all of the examples where   means “conceal, cover over,” the physical covering material is always specified or clearly implied.40 It is introduced as subject of the verb, or it is defined with instrumental - or an accusative of means. In Deut 13:9, that condition is absent: there is no physical covering material. Consequently, the idiom cannot logically mean “to cover over someone” [with something].41

39 The two major modern German translations presume a different analysis of the antecedent. They interpret the third person pronominal suffix on the preposition  not as “him” but rather as neuter “it”—as an abstract noun that they then introduce into the text. The Einheitsübersetzung, as already noted, renders: “Du sollst . . . die Sache nicht vertuschen” [You shall not hush up the matter]. Similarly, the revised Lutherbibel renders, “und seine Schuld nicht verheimlichen” [You shall not conceal his guilt]. This approach is untenable. It creates an anomaly whereby the three previous identical suffixes in Deut 13:9 each refer to the inciter himself—but where the same suffix would now refer to the matter concealed—only immediately thereafter to refer to the inciter once again (Deut 13:10a)! Consequently, the pronominal suffix can only logically refer to the inciter, not to the incitement. 40 In example 1, the Deep; in 2, the Glory; in 3, [the blood spilled in] violence; in 4, lightning; in 5, [the wings of] the Cherubim; in 6, suet; in 7, dust; in 8, 10, 11, the earth; in 9, worms; and in 12, deep darkness. 41 Medieval Jewish exegesis partially anticipates this insight. Abraham ibn Ezra (1089–1164) glosses the phrase     (Deut 13:9):     ,    %, “so that you allow him, but you shall reveal the matter until the witnesses can hear it from his mouth” (Commentary on the Torah, 253; my translation). In other words, before providing the normative position of Jewish interpretation, whose focus is the issue of reporting to the witnesses, he shifts the interpretation of the syntagm itself to the addressee’s tolerating the action of the inciter. The sixteenth-century Jewish exegete Moses Alshech actually broke with the standard line of interpretation. After an interesting rhetorical analysis of the verse, Alshech takes the final clause to be climactic: if you fail to heed the prior admonitions, you will end up by “covering him [the inciter] over with your tongue, to become one who protects him [thus glossing    by  ], and setting your mind to rescuing him.” Not simply concealment through silence but more active protection, first through speech and then through action, is the force of the verb. See the Pentateuch commentary by Moses Alshech, Torat Mosheh (Constantinople, 1593; frequently reprinted, most recently, 5 vols.; Jerusalem: Makhon Lev Sameach/Wagshall, 1990), 5:171 ad Deut 13:9 (Hebrew; my translation). Nonetheless, neither Ibn Ezra nor Alshech introduces the notions of condoning or forgiving.

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The second possible objection arises from the analysis of ancient Near Eastern literature. Both Hittite and Neo-Assyrian treaties prominently stress the vassal’s obligation not “to conceal” plotters against the king or his heirs.42 The standard verbs involved are Hittite (l ) munnai– and Akkadian puzzuru (D-stem).43 That the treaty literature forbids the concealment of conspiracy cannot be denied. Just that ostensible parallel, however, in fact substantiates the argument here. The treaties and loyalty oaths stress the objective requirement not to conceal treason. While building upon that general motif, the author of the law in Deuteronomy departs from the objective legal language of the cuneiform sources in two ways. First, he specifies that in this case, the incitement originates from within the family of the law’s addressee. That involves a restriction over against the Neo-Assyrian sources, where the incitement originates indifferently either from the king’s family or from that of the addressee: šumma abutu l Åbtu l deiqtu l bantu ša ina mui Aššur-bniapli mari šarri rabii ša bt ridûti mari Aššur-au-iddina šar mt Aššur blkunu l tar tni l Åbtni l ina p nak(i)ršu l ina p salmšu l ina p ašu a abbšu mar a abbšu qinnšu zari bt abšu l ina p akunu markunu martkunu l ina p raggime maê mr šili amt ili l ina (p) napar almt qaqqadi mal bašû tašammâni tupazzarni l tallakninni ana Aššur-bni-apli mari šarri rabii ša bt ridûti mari Aššur-au-iddina šar mt Aššur l taqabbâni

You shall not hear or conceal any evil, improper, ugly word which is not seemly nor good to Ashurbanipal, the great crown prince designate, son of Esarhaddon, king of Assyria, your lord, either from the mouth of his enemy or from the mouth of his ally, or from the mouth of his brothers, his uncles, his cousins, his family, members of his father’s line, or from the mouth of your brothers, your sons, your daughters, or from the mouth of a prophet, an ecstatic, a diviner, or from the mouth of any human being who exists; you shall come and report (it) to Ashurbanipal, the great crown prince designate, son of Esarhaddon, king of Assyria.

FIGURE 7.1 Esarhaddon’s Succession Treaty (=VTE) §10 (lines 108 –22)44

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The Deuteronomic author restricts the cuneiform conspiracy topos so that the incitement originates solely within the immediate family of the law’s addressee. It is thereby the more problematic to counter. Under these circumstances, the addressee is both more likely to listen and more likely to forgive; as the wise speaker of Prov 10:12 affirms,       , “love condones all transgressions.” Here arises the second departure from the cuneiform model. The Neo-Assyrian treaties and loyalty oaths require reporting and, once the conspiracy becomes grave, summary execution (see Esarhaddon’s Succession Treaty §12). The motif of the addressee’s family is not invoked because of the connotations of intimacy or tenderness as such. The reference to the family provides one variable in a series that climaxes with an all-inclusive formulation: l ina (pî) napar almt qaqqadi mala baöû, “or from the mouth of any human being who exists” (§10 above).42 The same is true in the Zakutu Treaty (669 B.C.E.):45 u šumma attunu tašammâni tuddâni ma bu mušamhi te mušadbibte [[ša]] ina bertkunu l ina ša ziqni l ina ša rši l ina ašu l ina zari šarri l ina akunu l bl Åbtkunu l ina niš mti gabbu tašammâni [tuddâni l] ta abbatninni [l tadukkni ina] mui Zakti [ummöu u ina mui Aööur-bni-apli öar mt Aööur] [b lkunu l tubbalninni]

and if you hear and know that there are men instigating armed rebellion or fomenting conspiracy in your midst— be they bearded or eunuch or his brothers or of royal line or your brothers or friends or anyone in your entire nation— should you hear and [know] (this), then you shall seize and [kill] (them)! You shall bring them to Zakutu [his mother and to Assurbani]pal, [king of Assyria] [your lord.]

FIGURE 7.2 Sedition by “anyone in your entire nation” (The Zakutu Treaty)

In contrast to his cuneiform sources, the author in Deuteronomy has created a separate unit dealing with conspiracy from within the addressee’s

42

The important literary motif within the treaties and Neo-Assyrian letters of reporting disloyalty has been identified by Rintje Frankena, “The Vassal-Treaties of Esarhaddon and the Dating of Deuteronomy,” OtSt 14 (1965): 142– 43; and A. Leo Oppenheim, “The Eyes of the Lord,” JAOS 88 (1968): 173– 80. Noting the relevance to Deuteronomy 13, see Weinfeld, Deuteronomy, 91– 94; idem, “Loyalty Oath,” 387– 89 (adding Greek sources); and Dion, “Deuteronomy 13,” 199–201.

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own family.43That motif is no longer44equated with conspiracy from prophets or oneiromancers, as it is in §10 of Esarhaddon’s Succession Treaty. Instead, it is given separate treatment in Deut 13:2–6.45Nor is it simply part of an overall continuum extending from the monarch’s family through the addressee’s family to anyone whomever. The Deuteronomic author deliberately sharpens this focus on family intimacy by rhetorical means. He specifies that the “brother” is  %  , a brother from the same mother. The call to apostasy originates, in other words, from the addressee’s own closest blood relative, the uterine brother; the author thereby rhetorically sharpens the conflict between blood and religion. By contrast, the use of the same term in Esarhaddon’s Succession Treaty involves no such conflict. It requires the oath-taker’s loyalty to Ashurbanipal and “his brothers, the sons of his [same] mother,” a öu mar ummiöu.46 43

See Hans G. Güterbock and Harry A. Hoffner, eds., The Hittite Dictionary, vol. L–N, fascicle 3 (Chicago: The Oriental Institute of the University of Chicago, 1986), 331, s.v. munnai- for the Hittite material. For the Neo-Assyrian attestations, see CAD and the convenient glossary list provided by Parpola and Watanabe, Neo-Assyrian Treaties, 98. 44 The Akkadian excerpt of lines 108 –22 is cited according to the (eclectic) text in Parpola and Watanabe, Neo-Assyrian Treaties, 33. I have also consulted Watanabe, Die adê-Vereidigung, 148. While indebted to Parpola and Watanabe for the translation, I substantially depart from their rendering of lines 108, 115–16, 118, 119–20 so as to reflect the Akkadian more exactly. 45 The normalization provided here has been prepared by me. For the transcription (rev., lines 18 –27) on which it is based and the translation, see Parpola and Watanabe, Neo-Assyrian Treaties, 64. For a fuller commentary, see the valuable earlier edition by Simo Parpola, “Neo-Assyrian Treaties from the Royal Archives of Nineveh,” JCS 39 (1987): 161– 89, esp. 165–70. 46 See lines 94, 103, 171, 285, 496, 504, 515, 633. The attestation of the formula “brother, son of his/your mother” in the Neo-Assyrian material establishes its originality to Deut 13:7. That comparative evidence conclusively refutes the text-critical reconstruction urged by Gottfried Seitz (Redaktionsgeschichtliche Studien zum Deuteronomium [BWANT 93; Stuttgart: Kohlhammer, 1971], 234) and followed by A. D. H. Mayes (Deuteronomy [NCB; London: Marshall, Morgan, & Scott, 1979], 234). Seitz contends that the verse originally referred only to “your brother,” understood as any Israelite, and that the family specification merely arose from later misunderstanding. Similarly controverted is the addition by the LXX, the Samaritan Pentateuch, 11QTemple 54:19, and Tg. Ps.-J.: “the son of your father or the son of your mother.” That expansion, accepted by BHK 3 and BHS, and incorporated into the NEB, represents a secondary drive for genealogical symmetry. It no longer understands the particular status of the uterine brother and does not preserve an original reading. That the supplement represents a later expansion is clear from its explicitly midrashic incorporation into Tg. Ps.-J., where, alone among the other terms, it is marked by a formal tag of hermeneutical derivation:   %   , “so much the more so the son of your father.” The text is cited according to Targum Pseudo-Jonathan of the Pentateuch: Text and Concordance (ed. Ernest G. Clarke; Hoboken: Ktav, 1984), 225. The addition is also marked as an exegetical expansion in the

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The Deuteronomic author also introduces the motif that the conspiracy may even derive from   , “the wife of your bosom” (Deut 13:7). The category “wife” is altogether absent as a conceivable source of conspiracy in the context of the Neo-Assyrian treaties.47 He also dramatizes the situation in a way that diverges from the sources. The addressee is alone with the close kin or beloved wife or friend: the incitement takes place   (“in secret”). In creating a unit directly engaging the conflict between loyalty to God and familial love and trust, the Deuteronomic author interjects a new motif: the injunction to extinguish the inner feelings of kinship and mercy that would inevitably arise toward the beloved—and that would preclude the summary execution that is called for. Such an exhortation seems to be without precedent in the available treaties. The dramatic series of five negative imperatives represents a calculated part of the Deuteronomic author’s rhetoric: the five verbs of Deut 13:9 perfectly balance the five forms of intimate relation (brother of the same mother, son, daughter, wife, friend) defined by the protasis (Deut 13:7). 48 The comparative evidence thus establishes how the Deuteronomic author created a test case unprecedented in the available treaty material, one that deals specifically with the conflict between love of family and devotion to God. By every rhetorical means available, the author has made the conflict the more poignant (1) by restricting the inciters to the members of the addressee’s own family; (2) by including the wife; and (3) by using clear affective language (“the wife of your bosom or the friend who is as yourself ”). The author has left behind the objective concern of the NeoSipre. The two terms of the appositional construction of Deut 13:7  %  , “your brother, the son of your mother,” are there separated from one another and midrashically construed as an ellipsis:  %  , % .    , , “Your brother: this is your brother from your father. The son of your mother: this is [your brother], the son of your mother.” See Sipre Deuteronomy, pisqa 77 (ed. Louis Finkelstein; New York: Jewish Theological Seminary, 1969), 151 (emphasis added). This evidence challenges the restoration by Veijola (“Deuteronomium 13,” 303). 47 In the singular, rtu or aššatu designate either Mullissu (the mother goddess and wife of Aššur) or Esarhaddon’s wife (in the context of bearing a rightful heir). See Accession Treaty of Esarhaddon, rev. line 18; and Esarhaddon’s Succession Treaty, lines 250, 417 (Parpola and Watanabe, Neo-Assyrian Treaties, 22, 38, 45). In the plural, they frequently occur in the context of the curses that conclude the latter treaty, as recipients of punishment for the male’s disloyalty. 48 The symmetry is already recognized by Midrasch Tannaim zum Deuteronomium (ed. David Zvi Hoffmann; 2 vols.; Berlin: Itzkowski, 1908 –1909), 1:65 (Hebrew). The symmetry provides further evidence to support the originality of the five-member protasis despite the frequent attempts either to expand it or contract it; see the preceding note and David Zvi Hoffmann, Das Buch Deuteronomium (2 vols.; Berlin: M. Poppelauer, 1913–1922), 1:185.

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Assyrian treaties with concealment to address the subjective feelings of love and the consequent strong likelihood of forgiveness. That forgiveness is indeed the key is confirmed by inner-biblical evidence. The five-verb sequence of Deut 13:9 represents a rhetorical tour de force. The series has a clear 2 + (2 + 1) literary structure.49 The first pair of verbs requires noncompliance: neither to accede to nor to heed (       ). The following pair forbids the subjective feelings of pity or compassion (      ). The final prohibition     is a deliberate expansion of that pair, intensifying its force. What has not previously been seen in the literature is that there are two other cases where the latter verb pair—negative  + —is expanded by a third term. The expanded series emphasizes the extraordinary violence that is about to occur. In each case, that term is  (“show mercy, compassion”)—synonymous with the previous two verbs. In the first example, the expanded series fits the context: God’s slaughter will be indiscriminate and all-inclusive, leaving no family member unscathed: I will smash them one against the other, father and son alike, declares Yahweh.       I will show no compassion nor will I pity nor will I show mercy, that I should not destroy them. (Jer 13:14)

The second example provides a particularly appropriate control because of the close similarity of its formulation to that of Deut 13:9. In Jer 21:7, Yahweh affirms in a judgment oracle: I will give Zedekiah, king of Judah, and his servants, and the people in this city who survive the pestilence, sword, and famine, into the hand of Nebuchadrezzar, king of Babylon, and into the hand of their enemies, into the hand of those who seek their lives. He shall smite them with the edge of the sword. He shall not pity them nor show compassion nor shall he show mercy. Jer 21:7 Deut 13:9

                

49 This analysis of the literary structure of Deut 13:9 as 2 + (2 + 1) and as balancing the five-term protasis of Deut 13:7 differs from that provided by Dion, “Deuteronomy 13,” 154. This syntactical analysis has further implications. The asyndetic conjunction 

that begins v. 10 establishes that the new disjunctive clause provides an antithesis to the entire preceding sentence (Deut 13:9). It does not merely negate     (Deut 13:9) alone, contrary to the suggestions made by Budde, “Dtn 13 10,” 187– 88; Weinfeld, Deuteronomy, 92– 94; and Dion, “Deuteronomy 13,” 154. The text-critical conclusions drawn by these scholars in favor of the LXX as providing a more logical verb pair are based on a problematic understanding of the Hebrew syntax.

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In each case the third element is effectively synonymous with the previous two.50 That suggests, once again, the functional equivalence of the final terms in each case. Not only the formula but also the context is similar.51 In each case, the expanded series appears in the context of cold-blooded murder. Nebuchadrezzar will do the unthinkable: slay those citizens of Jerusalem who have managed to survive the rigors of the long Babylonian siege. So is the addressee in Deuteronomy commanded to do the unthinkable: cold-bloodedly to slay someone whom he loves. The results of this analysis independently confirm the analysis in the previous section of this chapter. In Deut 13:9,     is semantically equivalent to both negative   and negative .

Conclusions Contrary to the universal rendering of Deut 13:9, there is no case where the syntagm piel   means “to conceal,” “to shield,” or “to hush up.” In almost all cases, the idiom takes a concrete noun as object of the preposition. Consequently, the covering over involved is literal and physical (examples 1– 9), whether earth covering corpses or fat covering the internal organs.52 Even when the prepositional object denotes a living person or community, the simple physical meaning remains paramount. The literal covering over of the still-living rebels—their being buried alive (see Hittite Laws §173b)53—only intensifies the horror of their punishment: God treats 50 The negative tripartite series in Ezek 24:14, employing / /, reinforces the arguments here: (1) the three terms are effectively synonymous and (2) the rhetoric of rescinding mercy and forgiveness is immediately connected to an oracle promising violent judgment (Ezek 24:13, 14b). 51 In his painstaking study, Dion notes that the multiple affinities between Deuteronomy 13 and Jeremiah 21 could imply textual dependence (“Deuteronomy 13,” 179– 80). If so, then the author of Jer 21:7 may deliberately have based his expanded series on that of Deut 13:9 and updated the third term to one that was more familiar. 52 The reference to the violence covering the robe in example 3 (Mal 2:13) is no exception, for the metaphor presupposes the very literal blood of the innocent victim that stains the garment (see Gen 37:31–33). 53 In this case, a slave who rises in rebellion against his owner is placed in a clay jar in which he is then, presumably, buried alive. See Johannes Friedrich, Die hethitischen Gesetze (Leiden: E. J. Brill, 1959), 77 n. 16; and Harry Angier Hoffner Jr., The Laws of the Hittites: A Critical Edition (Documenta et Monumenta Orientis Antiqui 23; Leiden: E. J. Brill, 1997), 138 –39, and the commentary at 217–20. For the most recent translation, see the essential volume by Martha T. Roth, Law Collections from Mesopotamia and Asia Minor (2d ed.; SBLWAW 6; Atlanta: Scholars Press, 1997), which includes Harry Angier Hoffner Jr., “Hittite Laws,” 213– 47. For the analogy of this case with the punishment meted out to Korah and his associates, see Jacob J. Finkelstein, The Ox That

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them as premature corpses (examples 10 –12). Alternatively, the psalmist likens historical calamity to being covered over by primordial darkness (example 12). The one burial is literal, the other metaphorical. In no case is concealment or shielding an issue. There is not a single case where   is construed with a parallel verb of speech or reporting. Quite the opposite. In order for verbal disclosure to occur antithetically parallel, a grammatically and semantically different idiom must be employed:  + accusative (as in Pss 32:5; 40:11; Prov 28:13). Indeed, that the verbal root is much more complex than is usually recognized is clear from the very psalm that Dillmann had initially cited to justify his rendering, “ihn nicht bedecken, im Sinne der Verheimlichung durch Schweigen,” based on Ps 32:5. That psalm establishes that the same verb has different meanings depending on its syntax. The psalm opens with a pair of parallel qal passive participles:     %        $, “Blessed is he whose transgression is forgiven, whose sin is condoned; Blessed is the man to whom Yahweh does not reckon iniquity” (Ps 32:1). The notion of “condone” or “pardon,” here expressed by the qal passive participle, has never been considered for Deut 13:9. Not to do so constitutes arbitrariness, especially given Jenni’s demonstration of the close relationship in meaning between the qal passive and the piel.54 The rendering that represents the consensus translation of Deut 13:9— to shield or protect—only makes sense for  construed with the accusative. It cannot apply to  construed with the preposition . The LXX, which is the ultimate source of the confusion, is actually concerned to revise the Hebrew so as to remove any notion of summary execution. For that reason it assumes a conceal/report antithesis and introduces a different legal practice. That exegetical revision obscures the shocking Hebrew text, which places loyalty to God before all other priorities, including the preservation of life, the sanctity of the family, and judicial process. The legislator in Deuteronomy prohibits precisely those feelings of sympathy whereby the addressee might overlook the incitement to apostasy. Instead, the addressee (as in Neh 3:36–37) must take summary action. “Even if your brother, the son of your mother, or your son or daughter, or the wife of your bosom, or your friend who is like your own self, incites you in secret. . . . Do not assent or give heed to him! Let your eye not pity him nor shall you show compassion     nor shall you condone him—but you shall surely kill him!” (Deut 13:7, 9–10a).

Gored (Transactions of the American Philosophical Society 71:2; Philadelphia: American Philosophical Society, 1981), 29. 54 Jenni, Piel, 204 –5, 275.

8. “But You Shall Surely Kill Him!”: The Text-Critical and Neo-Assyrian Evidence for MT Deuteronomy 13:10 Understandably, the MT of Deut 13:10 has long troubled scholars. If incited by a close member of his family, intimate spouse or beloved friend to worship gods other than Yahweh, the law’s addressee is forbidden to heed the inciter, showing neither pity nor mercy, and is commanded instead: 

  , “But you shall surely kill him!” (Deut 13:7, 9–10). The verse is found in a chapter concerned to root out apostasy from the Yahwistic community. The unit presents three paradigmatic test cases: incitement originating from the sphere of public religious authority (a prophet or oneiromancer in 13:2– 6); from the sphere of intimate private life which is, as such, out of the public domain (13:7–12); or incitement which has already succeeded, to the extent of winning over an entire city to false worship (13:13–18). In all cases, the punishment is capital: individual in the first two cases, group execution by means of the ban in the third. The problem with Deut 13:10 is therefore less in the severity of the punishment which it requires, but rather in how the execution is to be carried out. The text reads like lynch law: Neither a trial nor the testimony of witnesses is mentioned.1 In requiring the person who hears the incitement (v. 7) himself summarily to kill the inciter (vv. 9 –10a), there are none of the normal safeguards for due process. Karl Budde powerfully described the double perversion of justice that such a law might permit: someone guilty of cold-blooded murder of a family member, wife, or friend could exculpate himself with the spurious claim that the innocent victim was an inciter.2 In contrast to the problematic MT, the LXX requires the hearer of the incitement to initiate public legal process: ajnaggevllwn ajnaggelei'~ peri; aujtou', “You shall surely report concerning him” (LXX Deut 13:9). A strong case has been built in favor of this variant. First, as August Dill1 Moshe Weinfeld, Deuteronomy and the Deuteronomic School (Oxford: Clarendon Press, 1972; repr., Winona Lake, Ind.: Eisenbrauns), 94. 2 D. Karl Budde, “Dtn 13 10, und was daran hängt,” ZAW 36 (1916): 187– 97 (at 187).

8. “But You Shall Surely Kill Him!”

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mann long ago recognized, the Greek can be retroverted to    ,3 the Hebrew verb of which can carry the technical legal meaning of “report” or “denounce.”4 Conceivably, the well-known interchange of / and the transposition of consonants could explain the corruption of the original Hebrew into the MT.5 That the verb  occurs nowhere else in Deuteronomy has also been used to argue that the MT represents a corruption.6 Second, the LXX variant brings the procedure in Deut 13:7–12 into conformity with standard judicial procedure, whereby capital punishment requires the testimony of two or more witnesses (Deut 17:6; 19:15; Num 35:30). Indeed, Deut 17:2–7, which also deals with apostasy (although not 3 August Dillmann, Die Bücher Numeri, Deuteronomium, und Josua (2d ed.; Kurzgefasstes exegetisches Handbuch; Leipzig: S. Hirzel, 1886), 301, who however does not emend the text. Instead, in an interpretation which is essentially identical to that of Ibn Ezra, although apparently not intentionally so, Dillmann suggests that the variant refers to action that takes place prior to the execution. In exegetically reading due process into the transition from 13:9 to 13:10, both the medieval commentator and the modern critic explicitly harmonize Deut 13:10, where witness law does not operate, with 17:6, where it does. 4 Isaac [Isac] Leo Seeligmann, “Zur Terminologie für das Gerichtsverfahren im Wortschatz des biblischen Hebräisch,” in Hebräische Wortforschung: Festschrift zum 80. Geburtstag von Walter Baumgartner (ed. B. Hartmann et al.; VTSup 16; Leiden: E. J. Brill, 1967), 251–78 (at 261– 62); repr. in idem, Gesammelte Studien zur Hebräischen Bibel (ed. Erhard Blum; FAT 41; Tübingen: Mohr Siebeck, 2004), 293–317 (at 302); and Weinfeld, Deuteronomy, 96. 5 Classically, Friedrich Delitzsch, Die Lese- und Schreibfehler im Alten Testament (Berlin: Walter de Gruyter, 1920), 105–7, for the consonantal interchange. For the most recent discussions, with literature, see Emanuel Tov, The Text-Critical Use of the Septuagint in Biblical Research (2d ed.; Jerusalem Biblical Studies 8; Jerusalem: Simor, 1997), 163– 64; idem, Textual Criticism of the Hebrew Bible (2d ed.; Minneapolis: Fortress; Assen: Royal Van Gorcum, 2001), 243– 46; and esp. idem, “Interchanges of Consonants between the Masoretic Text and the Vorlage of the Septuagint,” in “Shaarei Talmon”: Studies in the Bible, Qumran and the Ancient Near East Presented to Shemaryahu Talmon (ed. Michael Fishbane and Emanuel Tov; Winona Lake, Ind.: Eisenbrauns, 1992), 255– 66. It is important to note that Budde cites no other independent example of a similar error in the transmission of the text involving both interchange and transposition of the two consonants. His conjecture (191 n. 2) is groundless. Nor does his claim find any support from Delitzsch’s extensive lists. Delitzsch’s survey of consonantal transposition (89– 91) offers no case involving /; conversely, the examples of that interchange never involve transposition. As such, there is already a methodological difficulty with Budde’s explanation: there is no comparable example of the double error. The closest parallel is perhaps LXX 1 Kgs 14:24, which is a “pseudo-variant” that never existed in the Hebrew (Tov, Septuagint, 142). 6 Paul E. Dion, “Deuteronomy 13: The Suppression of Alien Religious Propaganda in Israel during the Late Monarchical Era,” in Law and Ideology in Monarchic Israel (ed. Baruch Halpern and Deborah W. Hobson; JSOTSup 124; Sheffield: Sheffield Academic Press, 1991), 147–216 (at 154).

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with incitement), provides evidence for the retroverted verb in question:   , “and if it is reported to you” (Deut 17:4). Moving beyond the text-critical argument, discussion reached a new stage with the publication of Esarhaddon’s Succession Treaty.7 Moshe Weinfeld demonstrated that Deuteronomy 13 takes over important terminology and motifs from Neo-Assyrian (as well as Hittite and Aramaic) treaties.8 He argued that a prominent motif within the treaty literature, that of reporting disloyal action to the sovereign, offered in effect objective external proof for the LXX variant. In particular, he isolated a formula whereby Esarhaddon adjures the person swearing the loyalty oath (adê): “If you hear and conceal evil . . . you shall come . . . you shall report [it].” That formula, with its antithesis between concealing and reporting, allegedly corresponds to the sequence of     . . .         , “you shall not heed him . . . nor shall you conceal him . . . but you shall report (!) him,” as restored from the LXX (Deut 13:9–10).9 The text-critical argument on the one hand, and the more recent cuneiform material on the other, have led to a near consensus. Currently, the retroversion to the LXX is all but universally accepted. It was urged in BHK 3—whose editor, Johannes Hempel, abandoned his own original support for the MT after the publication of Budde’s article10—and retained in BHS. It is accepted by Isaac Leo Seeligmann,11 Gottfried Seitz,12 A. D. H. Mayes,13 ThWAT,14 the Einheitsübersetzung15 and Georg Braulik’s commentary.16 Paul Dion has sought to give it new support.17 Departures from 7

Donald J. Wiseman, The Vassal-Treaties of Esarhaddon (Iraq 20.1; London: British School of Archaeology in Iraq, 1958). 8 Weinfeld, Deuteronomy, 91–100. 9 Weinfeld, Deuteronomy, 97; and idem, “The Loyalty Oath in the Ancient Near East,” UF 8 (1976): 379– 414 (at 388 n. 89). 10 Johannes Hempel, Die Schichten des Deuteronomiums: Ein Beitrag zur israelitischen Literatur- und Rechtsgeschichte (Beiträge zur Kultur- und Universalgeschichte 33; Leipzig: R. Voigtländer, 1914), 249: “Von einer geordneten Rechtspflege findet sich noch keine Spur.” Budde’s article appeared two years later (“Dtn 13 10”). 11 Seeligmann, “Terminologie,” 262 (302 in the reprint). 12 Gottfried Seitz, Redaktionsgeschichtliche Studien zum Deuteronomium (BWANT 93; Stuttgart: W. Kohlhammer, 1971), 151, 154. 13 A. D. H. Mayes, Deuteronomy (NCB; London: Marshall, Morgan & Scott, 1979), 234. 14 Félix García-López, “  ngd,” ThWAT 5 (1986): 188 –201 (at 191); ET, TDOT 9 (1998): 174– 86 (at 176). 15 Die Bibel—Altes und Neues Testament: Einheitsübersetzung (ed. Bishops of Germany et al.; Freiburg: Herder, 1980), 184. 16 Georg Braulik, Deuteronomium 1–16,17 (NEchtB 15; Würzburg: Echter Verlag, 1986), 104. 17 Dion, “Deuteronomy 13,” 153–54.

8. “But You Shall Surely Kill Him!”

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the consensus have been rare and have not engaged the text-critical or cuneiform arguments in favor of it.18 The purpose of this chapter is to challenge the consensus on both grounds. Extraordinarily, the text-critical case has hitherto been based only upon an examination of the LXX—and that, incompletely. No other textual witness has ever been brought into the discussion. Once the full range of versional reflections of Deut 13:10–11 is examined, the nature of the LXX variant becomes clear. It does not preserve an original reading. Instead, the LXX emerges as one among an entire chorus of versional attempts to wrest the Hebrew text into conformity with due process. Each textual witness achieves this common goal by means of varying strategies of rewriting. That each version remains isolated in its particular technique for revising the MT, while consistently achieving the same end, means that the panoply of versional responses cannot be combined to reconstruct an original text. The LXX “variant” must therefore be viewed as a chapter in the history of interpretation and not as preserving an original reading. Moreover, the Neo-Assyrian material employed to support the LXX variant actually points in the opposite direction. Stipulations within VTE that have previously not been brought into the discussion explicitly require summary execution of traitors. Once systematically analyzed, the text18 Rosario Pius Merendino, Das deuteronomische Gesetz. Eine literarkritische, gattungs- und überlieferungsgeschichtliche Untersuchung zu Dt 12–26 (BBB 31; Bonn: Peter Hanstein, 1969), 68, simply assumes the MT Deut 13:10aa without mentioning the LXX variant. Horst Seebass, “Vorschlag zur Vereinfachung literarischer Analysen im dtn Gesetz,” BN 58 (1991): 83– 98 (at 87 n. 20), on the other hand, suggests that the LXX revises the MT of Deut 13:10 to avoid the impression of lynch justice. I agree with this basic proposal, but believe it must be supported by a discussion of the text-critical and cuneiform evidence. Since Seebass considers MT Deut 13:10 to be a secondary interpolation derived from 17:7 (p. 88), his arguments leave several issues unexplained. First, Deut 13:10aa has no analogue in Deut 17:7, and therefore cannot be secondarily derived from it. Second, if the MT annotator were indeed dependent upon Deut 17:7 (where witness law is explicit), how could he then produce in Deut 13:10 a law which requires exactly the opposite? A more helpful approach can be found in Zeev W. Falk, Introduction to Jewish Law of the Second Commonwealth (AGJU 11; 2 vols.; Leiden: E. J. Brill, 1972–1978), 2:93, whose insight, in a book published by a major European press, seems to have been largely overlooked. Falk argues that the LXX, rejecting the legal principle of self-help preserved in the MT, revises the text. Falk’s legal-historical approach is very helpful, as is his discussion of the evidence for the fragmentary preservation of self-help within Second Temple law. Falk does not, however, engage the text-critical or cuneiform issues. Elsewhere Falk offers a somewhat different analysis, suggesting that the LXX rejects the family law preserved by the MT: idem, “Über die Ehe in den biblischen Prophetien,” Zeitschrift der Savigny-Stiftung für Rechtsgeschichte (Romanistische Abteilung) 90 (1973): 36 – 44 (at 41– 42). The two differing analyses are not brought into relation with one another.

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critical and the Neo-Assyrian evidence interlock to confirm the originality of the MT.

The Analysis of the Versions The text of Deut 13:7–12 preserved by the MT is striking in its syntax, for here syntax has clear legal implications. With the single exception of one pronominal suffix in the parenesis of v. 8, the entire paragraph is consistently formulated as a direct address in the second person singular. As such, a single individual is commanded to cauterize feelings of kinship and mercy (v. 9), to kill (v. 10), and to stone (v. 11a). The same person who hears the incitement (v. 7) is the one who is responsible for the inciter’s death by stoning (v. 11a). Although elsewhere the second person singular may clearly have a collective force, in this paragraph such an option must be ruled out: v. 10b makes a clear distinction between the action of the individual who is addressed and the subsequent action of the entire nation. The MT follows and then, systematically, the other textual witnesses, in order to focus on their representation of the inciter’s death. For the key verses in question, at Deut 13:10 –11, the Samaritan Pentateuch conforms exactly to the Hebrew.19 Unfortunately, the Qumran Temple Scroll (11QTa) does not provide text-critical assistance because the top of col. 55 is missing. 1. MT Deut 13:7–12

  

     %                                   #    #   19

7) If your brother, the son of your own mother, or your son, or your daughter, or the wife of your bosom, or your friend who is as yourself, entices you in secret, saying, “Let us go and worship other gods”—whom you and your fathers have not known, 8) from among the gods of the peoples around you, near you or far from you, from one end of the earth to another.

August Freiherr von Gall, Der hebräische Pentateuch der Samaritaner (Giessen: Alfred Töpelmann, 1918; repr., Berlin: Walter de Gruyter, 1966), 5:394; and the more critical edition based upon a single manuscript by Abraham Tal, The Samaritan Pentateuch: Edited according to MS 6 (C) of the Shekhem Synagogue (Texts and Studies in the Hebrew Language and Related Subjects 8; Tel-Aviv: Chaim Rosenberg School for Jewish Studies, TelAviv University, 1994), 190.

8. “But You Shall Surely Kill Him!”

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9) You shall not yield to him nor heed him! Your eye shall not pity him! You shall not spare nor shall you conceal him.

   

          

10) But you shall surely kill him! Your hand shall be first against him to kill him, and the hand of all the people thereafter.

            #      %              

11) You shall stone him with stones so that he dies. For he sought to thrust you aside from Yahweh, your God, who brought you out of Egypt, out of the house of bondage. 12) And all Israel shall hear and fear, and never again do such an evil thing in your midst!

2. Septuagint Even on its own terms, the text-critical discussion of the LXX variant has been problematically incomplete. What has never been brought into the discussion is that the LXX departs from the MT, not simply with the variant, “you shall surely report concerning him,” but also in its rendering of the inciter’s death by stoning in the following verse. In the MT, the addressee of the law is himself to stone the inciter.20 The verb is second person singular. In contrast, the LXX breaks off the direct address to the person incited and shifts to a third person reference to the larger community. It is they, not the law’s original addressee, who shall stone the inciter. While this change involves expected secondary smoothing of syntax, because of the reference to the people in LXX Deut 13:9b, more is involved. The other textual witnesses will also show striking divergences, both from the MT and from one another, at exactly this point (LXX Deut 13:10a = MT Deut 13:11a). Already, however, it becomes clear that, at least at this point, the LXX must presuppose the MT and smooth it, since the introduction of the second person by the MT, were the LXX original, is text-critically improbable. 20 In the same year as the original publication of this chapter, John William Wevers also drew attention to the LXX as requiring a public execution, thus transforming the assumptions of MT Deut 13:10. The LXX changed MT in order to make it conform to Deut 17:2–7. See idem, Notes on the Greek Text of Deuteronomy (SBLSCS 39; Atlanta: Scholars Press, 1995), 232–33.

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LXX Deut 13:9–10a21

MT Deut 13:10–11a

   

          

(10

    (11a 

9)

ajnaggevllwn ajnaggelei'" peri; aujtou' kai; aiJ cei'rev" sou e[sontai ejpÆ aujtw'/ ejn prwvtoi" ajpoktei'nai aujtovn, kai; aiJ cei're" panto;" tou' laou' ejpÆ ejscavtw//,

10a) kai; liqobolhvsousin aujto;n ejn livqoi", kai; ajpoqanei'tai, . . .

10) But you shall surely kill him! Your hand shall be first against him to kill him, and the hand of all the people thereafter.

9)

11a) You shall stone him with stones so that he dies

10a) They will stone him with stones so that he will die

[—] You shall surely report concerning him, and your hands will be first upon him to kill him and the hands of all the people, last.

3. Syriac PeshiÅta Like the Samaritan, the Syriac also exactly reflects the command to kill found in the MT and retains the singular addressee of the verse. In v. 11a, however, the subject, now pluralized, is addressed in the imperative. In other words, the stoning which takes place in v. 11 is marked as a public execution, not a private act. The Syriac breaks the consistency of grammatical address in the Hebrew in order to emphasize that the plural “you” who brings about the death of the inciter must be the entire community, not the single individual originally addressed in the law and whom the apostate originally attempted to incite.

21 John William Wevers, ed., Deuteronomium (Septuaginta 3.2; Göttingen: Vandenhoeck & Ruprecht, 1977), 188– 89 (my translation).

8. “But You Shall Surely Kill Him!”

Syriac PeshiÅta Deut 13:10–11a22

MT Deut 13:10–11a

   

          

173

(10

    (10        

!"#

     (11a

)

* '#( $%& (11a

10) But you shall surely kill him! ....................... 11a) You [singular] shall stone him . . .

10) But you shall surely kill him! ....................... 11a) You [plural] shall stone him . . .

4. Vulgate Just as the Syriac preserves the command to kill in v. 10, but modifies v. 11a, preserving the notion of stoning but altering the number of the addressee, so does Jerome’s Vulgate display that same double motion. MT Deut 13:10–11a

    (10                 (11a

Vulgate Deut 13:9–10a23 9)

sed statim interficies sit primum manus tua super eum [—] et post te omnis populus mittat manum 10a) lapidibus obrutus necabitur quia

10) But you shall surely kill him! Your hand shall be first against him to kill him, and the hand of all the people thereafter.

9)

11a) And you shall stone him with stones so that he dies.

10a) Covered over by stones, he should be put to death.

But you shall kill immediately! Your hand should be first against him and, after you, all the people should stretch out the hand.

Although Jerome reflects the MT’s command to kill (sed statim interficies), he introduces several significant changes. Jerome’s rendering omits both 22

W. M. van Vliet et al., eds., “Deuteronomy,” in The Old Testament in Syriac according to the PeshiÅta Version, I/2 Leviticus, Numbers, and Deuteronomy, and II/1b Joshua (ed. PeshiÅta Institute; Leiden: E. J. Brill, 1991), 1– 99 (at 41). Note that each of the four fascicles bound into the volume retains separate pagination. 23 Bonifatius Fischer et al., eds., Biblia Sacra iuxta Vulgatam versionem (3d ed.; Stuttgart: Deutsche Bibelgesellschaft, 1983), 254.

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the third person, masculine singular pronominal suffix on the verb and the purpose clause expressed by the infinitive construct with suffix (, “to put him to death”). More is at issue than simple stylistic smoothing, as becomes clear in the following verse. In the Hebrew (v. 11), there is a second person singular transitive verb. Jerome retains neither the direct address nor the transitive verb with its accusative suffix. What appears instead is a passive participle (obrutus) followed by a third person, passive verb (necabitur). By means of this change, the death of the inciter is made the product of the entire community. Not, “you [second person singular] shall stone him with stones so that he dies,” but instead, anonymously and passively: “Covered over by stones, he should be put to death.” The change neutralizes the problematic Hebrew text, subsuming the action of the individual into community action. The variations go consistently in the direction of precluding any possibility that the single individual who hears the incitement (MT, v. 7) may directly execute the inciter. Given his desire to bring existing Latin translations into closer conformity with the Hebrew text, Jerome would have been broadly familiar with the relevant rabbinic exegesis of this text, which makes witness law the precondition for execution. Arguably, Jerome knew the distance between the Hebrew text of this unit and its normative interpretation and attempted to combine both, deftly bridging the gap by means of grammatical and syntactic modifications. Jerome retains and corroborates the problematic Hebrew reading—the command to kill—while at the same time attempting to make that text conform to later legal procedural norms. A pattern has begun to emerge: versional preservation of the command “to kill” in MT Deut 13:10, but modification elsewhere to clarify that the execution of v. 11 is not carried out by the law’s original addressee. That pattern continues in the Targumic witnesses. 5. Targum Neofiti 1 Whereas MT Deut 13:9–11 is consistent in its singular address, Targum Neofiti is consistent in its plural address. The admonition in v. 9 to cauterize feelings of kinship, the imperative to kill in v. 10, and the requirement in v. 11 to stone the inciter to death: all of these are pluralized. Consequently, the Targum erects a rigid barrier, both grammatical and legal, between the single individual of v. 7 who is addressed by the law (and by the inciter), and the plural addressee—the community as a whole—who alone are to take legal action against the inciter in vv. 9 –11a. There is thus an absolute distance created between the incitement of the individual and the public action against the inciter.

8. “But You Shall Surely Kill Him!”

MT Deut 13:9–11a

175

Targum Neofiti 1 Deut 13:9–11a24

                

 %   %   %  %    %   %  

   

     

 %$ $    %$ %   $

    

     %

    

    %  (11a

9)

You [sg.] shall not yield to him nor shall you heed him nor shall your eye pity him nor shall you spare nor shall you conceal him.

9)

(9

(10

You [pl.] shall not assent to him nor shall you heed his words; nor shall your eyes pity him nor shall you pity him nor shall you conceal him.

10) But you shall surely kill him! Your [sg.] hand shall be first against him to kill him, an the hand of all the people thereafter.

10) But you shall surely kill him! Your hands shall be the first to apprehend him to kill him and the hands of all the people thereafter.

11a) You shall stone him with stones so that he dies.

11a) And you shall stone him with stones so that he dies.

The versional reworking of its source creates an exegetical problem. Who are the plural “you” who must apprehend the inciter ( %$ % , v. 10)—if the community as a whole is only  , “thereafter,” to become involved? How is it possible that the second person plural must have two separate denotations in the same verse, neither of which can be the original singular addressee of v. 7, and only one of which can be the congregation as a whole? The answer to this question will emerge in the following analysis.

24

Alejandro Díez Macho, Neophyti 1: Targum Palestinense Ms de la Biblioteca Vaticana, vol. 5: Deuteronomio: Edición príncipe, introducción y versión castellana (Textos y Estudios 11; Madrid: Consejo Superior de Investigaciones Científicas, 1978), 5:127. My translation departs from the one provided in that edition (p. 495), which seems routinely to take the first definition in an entry in Jastrow, when others would seem more appropriate (at Deut 13:9, 10).

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II. The Paradigm of Legal Hermeneutics: Close Studies and Test Cases

6. Targum Pseudo-Jonathan The Palestinian Targumic tradition preserved in Pseudo-Jonathan raises some particularly interesting issues. Although the Targum follows the MT in Deut 13:7, beginning with a singular addressee, it shifts immediately and consistently to the plural, from the parenesis of v. 8 through v. 11. The one exception to that pluralization is the first verb of v. 10, $  $, “but you shall surely kill him.” What immediately follows, however, creates a textual aporia. The second person plural addressee of  %$ % , “Your [pl.] hands shall stretch forth against him,” cannot refer to the people as a whole, who are only subsequently brought into the text, as the second stage of the process of carrying out the death penalty. By definition, of course, neither can the plural pronominal suffix refer to a singular grammatical addressee. MT Deut 13:9 –11a

Tg. Pseudo-Jonathan Deut 13:9 –11a25

                

 %  % %   %    $ %   %  

   

          

$ $    %$ %  $      %

    

    %$  )11a

9)

You [sg.] shall not yield to him nor shall you heed him nor shall your eye pity him nor shall you spare nor shall you conceal him.

9)

(9

(10

You [pl.] shall not assent to him nor shall you receive from him nor shall your eyes pity him nor shall you have compassion nor shall you secretly conceal him.

10) But you shall surely kill him! Your [sg.] hand shall be first against him to kill him, and the hand of all the people thereafter.

10) But you shall surely kill him! Your [pl.] hands shall stretch forth against him first to kill him and the hands of all the people thereafter.

11a) You shall stone him with stones so that he dies.

11a) You [pl.] shall stone him with stones so that he dies.

8. “But You Shall Surely Kill Him!”

177

This aporia—who is the plural “you” who shall first stretch his hands forth against the inciter?—is soluble neither in strictly text-critical nor legalhistorical terms. Instead, it points to a hermeneutical issue. The Targum’s author has introduced into the text an exegetical harmonization of Deut 13:10 with Deut 17:7. 25 MT Deut 13:10

          

MT Deut 17:7

           

Tg. Ps.-J. Deut 13:10

     % $   %$ % 

FIGURE

8.1: Grammatical Aporia in the Targum as Pointing to Textual Harmonization

The Targumic author has read the legal procedure of Deut 17:7, where the stoning is initiated by two witnesses, into his rendering of Deut 13:10.26 By means of the pluralization to % , “your [pl.] hands,” the Targumic author rewrites his problematic source text so that it now, in effect, requires two witnesses as the precondition for a public execution. The aporia points 25

Ernest G. Clarke, ed., Targum Pseudo-Jonathan of the Pentateuch: Text and Concordance (Hoboken, N.J.: Ktav, 1984), 225–26. 26 The formulation of Deut 17:7 initially appears ungrammatical. With the previous verse’s stipulation that at minimum two witnesses should initiate the stoning, is not the bound phrase which refers to the single hand of the plural witnesses   contradictory? This construction, whereby singular “hand” is bound to a plural absolute noun, is, however, characteristic of classical Hebrew syntax. The examples suggest that the singular “hand” is construed as having a distributive force: Gen 19:16 (      . . . , “The men seized his hand . . . and the hand of his two daughters”); Exod 29:9; Lev 8:24; Deut 1:25; Josh 7:20 (bis). These references are found in BDB, 389 (1a), s.v. . Indeed, note also the similarly distributive use of singular “hand” in the case under discussion:   , “the hand of all the people” (Deut 13:10b; 17:7ab). The linguistic rationale for such a construction is that plurality does not in fact apply to the noun in question: each person, whatever the number, employs but one of his pair of hands to hurl the stone. This issue of congruence is overlooked by Bruce K. Waltke and Michael Patrick O’Connor, An Introduction to Biblical Hebrew Syntax (Winona Lake, Ind.: Eisenbrauns, 1990). The pluralization of “hand” in the Targum to % , “your hands,” which also takes place in the other versions, reflects simply a process of normalization, substituting a logical plural for the distributive plural. As such, unlike the pluralization of the addressee, the shift does not have exegetical significance but is rather a matter of historical linguistics. For the problem of number and congruence in LXX Deut 13:9 (10), and the resulting difficulty, see Wevers, Notes on the Greek Text of Deuteronomy, 233.

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II. The Paradigm of Legal Hermeneutics: Close Studies and Test Cases

to the Targumist’s exegetically forcing Deut 13:10 to conform to the witness law of Deut 17:7 and to normative postbiblical halakah. The only action against the inciter is the public process initiated by the plural witnesses and then by the entire community. 7. Targum Onqelos Although Alexander Sperber elects to print the second person singular in v. 11, consistent with the MT, his apparatus shows the strong evidence for a second person plural reading: that reading is distributed among MSS with both Babylonian and Tiberian vocalizations, and appears in the First Rabbinic Bible.27 This strong manuscript tradition, which is fully independent of the MT and which, even in the first printing, is not secondarily “corrected” by it, is consistent with the Palestinian Targumic tradition. This reading is, of course, an exegetical strategy rather than a text-critical issue. The pluralization of the addressee makes the inciter’s death explicitly a matter of public process.28 Targum Onqelos Deut 13:1129

MT Deut 13:11

     You [sg.] shall stone him with stones so that he dies.

  /      You [sg./pl.] shall stone him with stones so that he dies.

The Evidence of the Versions Once the versions are systematically analyzed, the originality of MT Deut 13:10 is confirmed. Previous arguments—based only on the LXX!—to retrovert the MT must be rejected. Every single ancient witness reflects the 27

The second person plural addressee appears in Sperber’s MS v, with Babylonian vocalization; in his MS c with Tiberian vocalization; and in the first Biblia Rabbinica, edited by Daniel Bomberg, Venice, 1516 –1517. Manuscript v also vocalizes the imperative of Deut 13:10 as a plural. See Alexander Sperber, The Bible in Aramaic Based on Old Manuscripts and Printed Texts, vol. 1: The Pentateuch according to Targum Onkelos (Leiden: E. J. Brill, 1959; repr., 3 vols. in 1; 3d ed.; Leiden: E. J. Brill, 2004), 315. 28 That the pluralization in this instance is a deliberate strategy of exegesis, and not simply an attempt to normalize the Numeruswechsel in the MT, is clear in that the Targum everywhere else in this chapter follows the grammatical number of the MT exactly. The only exceptions are in v. 11, and one manuscript’s pluralization of the imperative in v. 10, where the pluralization is also reflected in Tg. Neofiti. 29 Sperber, Bible in Aramaic, 315.

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wording   —with the single exception of the thereby isolated in its variant.

which is

+ — + + + + + +

MT LXX

Samaritan Pentateuch PeshiÅta Vulgate Targum Neofiti 1 Targum Pseudo-Jonathan Targum Onqelos FIGURE

LXX,

8.2: Attestations of () 

 (Deut 13:10) in the Versions

On the other hand, not a single witness (with the exception of the SP) unconditionally implements the wording of the MT. This fact becomes most apparent as soon as we shift our focus from v. 10 to the stoning in v. 11. The versions consistently disallow any notion that the person who has heard the incitement in v. 7 is the one who both carries out the initial command to kill in v. 10 and stones the inciter to death in v. 11. The thrust of the ancient versions is to transfer the execution of the inciter explicitly out of the hands of the addressee of the law and into the public domain. Accordingly, the goal of the Septuagint in its rendering ajnaggevllwn ajnaggelei'" peri; aujtou', “you [pl.] shall surely report concerning him,” is achieved by the other versions as well: essentially all strive to eliminate any notion of lynch law and to subordinate the case to public process and the operation of witness law. Each achieves this common goal, however, at different points in the text and by means of different grammatical techniques. Stoning as: Addressee (v. 11) MT

Individual Act 2 sg. —

Community Act 2 pl.30 3 pl. Passive +

LXX

Samaritan Pent. PeshiÅta Tg. Neofiti 1 Tg. Ps.-Jonathan Tg. Onqelos Vulgate FIGURE

—

(—)

+ + + + +

8.3: Rendering of Deut 13:10 –11 as an Explicitly Public Execution

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Although the goal is uniform, the techniques are multiple, creative, and inconsistent with one another. The various versions cannot be combined in any way to create an original text, although the derivation of each from the problematic created by the MT can easily be explained. All roads lead to exegesis.30 The LXX variant points to translators who are actively embedding normative Second Temple halakah into their rendering.31 The variant, which makes publicly reporting the inciter the precondition for his execution and which is completely anomalous among the textual versions, conforms to the presentation of the law by the entire exegetical tradition. Versions MT LXX

Samaritan Pentateuch PeshiÅta Vulgate Tg. Neofiti 1 Tg. Ps.-Jonathan Tg. Onqelos Exegesis Sipre Deut 13:9, pisqa 89 Mishnah Sanhedrin 7:10 Midrash Tannaim, ed. Hoffmann32 Rashi33 Ibn Ezra (Deut 13:9) Nachmanides (Deut 13:9) FIGURE

— + — — — — — — + + + + + +

8.4: The Introduction of Witness Law in Deut 13:10a (9a)

Even the wording of the LXX can in large measure be explained in exegetical terms. Consistently, both ancient and medieval exegesis provide precisely the due process that is absent in the MT: the testimony of witnesses.313233 30 The second person plural rendering of the Aramaic witnesses (both Targums and Syriac) also occurs in Patristic citations of this passage; see the annotation by Wevers, noting lapidabitis in the citations by Lucian and Tertullian (Deuteronomium, 184). 31 Paul E. Dion himself demonstrates this tendency of the Septuagint translators of Deuteronomy in two instructive articles: “Early Evidence for the Ritual Significance of the Base of the Altar,” JBL 106 (1987): 487– 90; and “The Greek Version of Deut 21:1– 9 and Its Variants: A Record of Early Exegesis,” in De Septuaginta: Studies in Honour of John William Wevers on His Sixty-Fifth Birthday (ed. Albert Pietersma and Claude E. Cox; Mississauga, Ont., Canada: Benben, 1984), 151– 60. 32 David Zvi Hoffmann, ed., Midrasch Tannaim zum Deuteronomium (2 vols.; Berlin: Itzkowski, 1908 –1909), 1:66.

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Sipre Deut 13:9, pisqa 8934

         ,   

You shall not conceal him: If you know that he is guilty, you are not permitted to keep silent. Mishnah Sanhedrin 7:1035

 %  %   %  ó % , 

If he spoke to two individuals who are able to testify against him, then they shall bring him to court and they shall stone him. Midrash Tannaim, ed. Hoffmann36

      

You shall not conceal him: Reveal him from his secrecy. Ibn Ezra37

,  %      , .      ,  % 

“You shall not conceal” [Deut 13:9]. That you shall permit him [to continue], but you shall reveal the matter, until the “witnesses” [Deut 17:6] can hear it from his own mouth, for thus it is written: and then “You shall kill him!” [Deut 13:10]. Nachmanides38

%    :   

You shall not conceal him: by not testifying against him in court. FIGURE 8.5 Exposure and Transfer to Judicial Process: The Exegetical Origins of ajnaggevllwn ajnaggelei'" 3435363738

33

The best edition of Rashi’s Commentary on the Pentateuch, citing the classical rabbinic sources that he frequently (as here) draws upon, is Charles Ber [ayim Dov] Chavel, ed., Perushe Rashi al ha-Torah (3d ed.; Jerusalem: Rav Kook Institute, 1985– 1986), – [545– 46]. He bases his text upon the earlier work of Abraham Berliner, ed., Raschi: Der Kommentar des Saloma b. Isak über den Pentateuch (2d ed.; Frankfurt: J. Kaufmann, 1905). For the standard English translation, see Morris Rosenbaum and Abraham Maurice Silbermann, trans., Pentateuch with Targum Onkelos, Haphtaroth, and Rashi’s Commentary (5 vols.; London: Shapiro Valentine, 1929–1934; repr., Jerusalem: Silbermann, 1973), 5:72–73. 34 The relationship with the LXX reading is noted by Louis Finkelstein, ed., Siphre ad Deuteronomium: H. S. Horovitzii schedis usus cum variis lectionibus et adnotationibus editit (Corpus Tannaiticum 3.3; Berlin: Jüdischer Kulturbund, 1939; repr., New York: Jewish Theological Seminary of America, 1969), 152. The English translation follows Reuven Hammer, Sifre: A Tannaitic Commentary on the Book of Deuteronomy (Yale Judaica Series 24; New Haven and London: Yale University Press, 1986), 139.

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If the LXX reading does not represent an original text, where does it come from? Its origin can be explained with some precision. The Hebrew text of MT Deut 13:7–12, which requires the immediate execution of the inciter (v. 10), without due process, conflicts with the pentateuchal legal norm, which requires the testimony of a minimum of two witnesses as the precondition for conviction in a capital case. It would be inconceivable to the Septuagint translators that this passage should conflict with that norm, especially since Deut 17:2–7, which overlaps with this passage both in the topic of apostasy and in its language, makes that norm explicit:               , “On the testimony of two witnesses or three witnesses shall a person be executed; a person must not be executed on the testimony of a single witness” (Deut 17:6; cf. 19:15; Num 35:30).39 Ibn Ezra assumes this kind of harmonistic legal exegesis (midrash halakah), and conditions the killing (Deut 13:10) upon the procedures for due process, which require the testimony of “witnesses” (Deut 17:6).40 We have already seen in the case of Targum Pseudo-Jonathan that there was an exegetical tradition that read our passage, with its anomalous procedure, in light of the normative witness law found in Deut 17:2– 6. This tradition of harmonization dates to the Second Temple period, as can be confirmed by the Qumran Temple Scroll, which appends Deut 17:2– 6 (11QTa 55:15–56 [broken]) to 13:2–19 (11QTa 54:8–55:14). Arguably, the 35

Chanoch Albeck and Henoch [Hanokh] Yalon, “Sanhedrin,” in Seder Nizikin [The Order of Damages], vol. 4 of Shishah sidre Mishnah [The Six Orders of the Mishnah] (6 vols.; 2d ed.; Jerusalem: Bialik; Tel Aviv: Dvir, 1977), 163–210 (at 194) (Hebrew; my translation; reconstructed vocalization of this edition not retained here). 36 Hoffmann, ed., Midrasch Tannaim zum Deuteronomium, 1:66. 37 Abraham ibn Ezra, Commentary on the Torah (ed. Asher Weiser; 3 vols.; Jerusalem: Rav Kook Institute, 1977), 3:253 (Hebrew; bold in original; my translation, with emphasis added). 38 Nachmanides (R. Moses ben Nachman), Commentary on the Torah (ed. Charles B. Chavel; 2 vols.; Jerusalem: Rav Kook Institute, 1959), 2:407 (Hebrew); ET, 5 vols. (New York: Shilo, 1971–1976), 5:166. 39 For the similarities between the two passages, see Seitz, Deuteronomium, 154; and Bernard M. Levinson, Deuteronomy and the Hermeneutics of Legal Innovation (New York and Oxford: Oxford University Press, 1997), 118 –23. 40 I therefore disagree with the position of Eckart Otto, who maintains that witness law operates in Deut 13:7–12 and argues that the text is consistent thereby with Deut 17:2–7. That position conforms to the harmonistic legal exegesis of rabbinic tradition. On this point, see Levinson, Deuteronomy and the Hermeneutics of Legal Innovation, 119 n. 57. For Otto’s position, see idem, “Von der Gerichtsordnung zum Verfassungsentwurf: Deuteronomische Gestaltung und deuteronomistische Interpretation im ‘Ämtergesetz’ Dtn 16,18 –18,22,” in “Wer ist wie du, HERR, unter den Göttern?” Studien zur Theologie und Religionsgeschichte Israels für Otto Kaiser (ed. Ingo Kottsieper et al.; Göttingen: Vandenhoeck & Ruprecht, 1995), 142–55 (at 153).

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Septuagint translators in this case have not only taken the requirement of witness law from the parallel passage, but also found there the source of their specific wording.41 The addressee of that law is commanded:    $  , “If it is reported to you, and you hear, then make careful inquiry” (Deut 17:4). The Greek of    in this case is kai; ajnaggelh'/ soi. That formulation, where the apostasy has been reported and what ensues is a process of normative judicial inquiry, is presupposed by the ajnaggevllwn ajnaggelei'" peri; aujtou' (LXX Deut 13:9). The MT represents the lectio difficilior. Its originality is also assured by the text-critical principle of maximal differentiation between parallel passages. The MT of Deut 13:10 preserves a remarkably different text, as well as legal procedure, than the normative procedure, stipulating witness law, found in Deut 17:2–7. The LXX assimilates the exception to the norm (as does every textual witness except for the SP), and thereby betrays its secondary status. More is involved, however, than simply the revision of the consonantal text in light of a parallel passage. The old explanation that MT    derives from a mechanical corruption of the alleged original    , with / interchange and metathesis, should be stood on its head.42 Precisely such studied manipulation of the Hebrew Vorlage to serve hermeneutical needs was an established technique of the Septuagint translators.43 The same technique may be found both at Qumran44 and in 41

Similarly, Cécile Dogniez and Marguerite Harl, eds., La Bible d’ Alexandrie, vol. 5: Le Deutéronome (Paris: Cerf, 1992), 201. 42 In other cases, of course, such scribal confusions do occur; see Tov, “Interchanges,” 255– 66. 43 For metathesis of consonants as a hermeneutical technique within the Septuagint, see Albrecht Scriba, Die Geschichte des Motivkomplexes Theophanie: Seine Elemente, Einbindung in Geschehensabläufe und Verwendungsweisen in altisraelitischer, frühjüdischer und frühchristlicher Literatur (FRLANT 167; Göttingen: Vandenhoeck & Ruprecht, 1995), 148– 49. See further Hubert Junker, “Konsonantenumstellung als Fehlerquelle und text-kritisches Hilfsmittel im MT,” in Werden und Wesen des Alten Testaments (ed. Paul Volz; BZAW 66; Berlin: Alfred Töpelmann, 1936), 162–74. 44 The deliberate rearrangement of consonants takes place in the exegetical literature from Qumran. For example, peöer Habakkuk transforms , “trouble,” of its source text (Hab 1:3) into , “transgression” (1QpHab 1:5– 6). Similarly, “beyond   Damascus” (Amos 5:27) is reinterpreted by the Damascus Document as “from My tent   to Damascus” (CD 7:14 –15). Moreover, the same passage cites “Sakkût*  , your king” of its source text (Amos 5:26) and then exegetically revises it into “the books of the Torah are the Tabernacle   of the King,” justifying that transformation in light of a cross-reference to Amos 9:11. In the last case, even if the MT is itself a post-Assyrian polemical revision of the consonantal text, then the Qumran reformulation ironically may restore the original reading. For the first example, see William H. Brownlee, The Midrash Pesher of Habakkuk: Text, Translation, Exposition, Introduction (SBLMS 24; Missoula: Scholars Press, 1979), 40. Discussing these examples in light of the exegetical

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rabbinic exegesis.45 Related hermeneutical techniques are also evident in cuneiform literature.46 By means of such “creative philology,” the problematic passage, “you shall surely kill him,” was altered to “you shall surely report concerning him,” consistent with Deut 17:4, with but minor deviation from the Hebrew consonantal text. As such, in contrast to the old model, the MT does not arise by mechanical corruption from an original reading restored by retroversion from the LXX. Instead, the LXX originates by means of specific, and elsewhere attested, hermeneutical methods, to render what the Hebrew text logically “had” to mean in the judicial thought of the Second Temple period. In effect, LXX Deut 13:9 is an exegetical harmonization, both legal and lexical, of two conflicting texts, MT Deut 13:10 (with  but without witness law) and MT Deut 17:4 (with   and witness law [vv. 4, 5– 6]). Given this argument, on the basis of the textual versions, that the MT preserves the original text of Deut 13:10—what then becomes of the claim that the Neo-Assyrian treaty corpus objectively confirms the LXX variant? Although that claim has now become essentially universally accepted, I believe it to be based on an incomplete reading of the evidence. The cuneiform material actually corroborates the text of Deut 13:10 while also casting light on the anomalous legal procedure.

The Neo-Assyrian Treaties I will first review the evidence for the claim that the LXX variant is supported by cuneiform parallels. As I have already noted, Weinfeld was the first to point out the extraordinary similarity of Esarhaddon’s Succession Treaty §10 and Deuteronomy 13.47 That stipulation, concerned (as is the technique in question, see Michael Fishbane, “Use, Authority, and Interpretation of Mikra at Qumran,” in Mikra: Text, Translation, Reading, and Interpretation of the Hebrew Bible in Ancient Judaism and Early Christianity (ed. Martin J. Mulder; CRINT 2.1; Assen/Maastricht: Van Gorcum; Philadelphia: Fortress, 1988), 339–77 (at 374 –75). 45 See Joseph [Isaac or Yizhak] Heinemann, Darkhe ha-Aggadah [The Methods of the Aggadah] (3d ed.; Jerusalem: Magnes, 1970) (Hebrew; my translation), 105, who also provides the term “creative philology.” 46 See Stephen J. Lieberman, “A Mesopotamian Background for the So-Called Aggadic ‘Measures’ of the Biblical Hermeneutics?,” HUCA 58 (1987): 157–225 (at 220 – 21). Inverting the tablet has the effect of reversing the order of the signs and their value. The best known example he cites is Marduk’s taking pity on Babylon and reducing the term of his abandonment of the city from seventy to eleven years by reversing or inverting the two cuneiform signs involved (so that 60 + 10 becomes 1 + 10). See Daniel David Luckenbill, “The Black Stone of Esarhaddon,” AJSL 41 (1925): 165–173 (at 166 – 67); and Riekele Borger, Die Inschriften Asarhaddons, Königs von Assyrien (2d ed.; AfOB 9; Osnabrück: Biblio, 1967), 12–19.

8. “But You Shall Surely Kill Him!”

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whole treaty) with ensuring loyalty to Esarhaddon and to his son Ashurbanipal, the crown-prince designate, identifies as possible sources of disloyalty either the royal or the addressee’s own family, as well as three different groups of diviners. Wherever the disloyalty originates, the treaty partner must report it. In the reference to the prophet, there is a clear overlap with Deut 13:2– 6; and in the reference to the members of the addressee’s family, there is an overlap with Deut 13:7–12. Given the thematic overlap, it is then striking that we have a sequence in the Akkadian that forbids the treaty partner from “concealing” (puzzuru [D-stem]) rumors and requires him instead to come and “report [them]” (qabû) to Esarhaddon.48 Weinfeld argues that this textual sequence confirms the originality of the LXX reading of Deut 13:10, “You shall report,” which strikingly follows the prohibition    , conventionally translated, “You shall not conceal” (Deut 13:9).49 šumma abutu l Åbtu l deiqtu l bantu ša ina mui Aššur-bniapli mari šarri rabii ša bt ridûti mari Aššur-au-iddina šar mt Aššur blkunu l tar tni l Åbtni l ina p nak(i)ršu l ina p salmšu l ina p ašu a abbšu mar a abbšu qinnšu zari bt abšu l ina p akunu markunu martkunu l ina p raggime maê mr šili amt ili l ina (p) napar almt qaqqadi mal bašû tašammâni tupazzarni l tallakninni ana Aššur-bni-apli mari šarri rabii ša bt ridûti mari Aššur-au-iddina šar mt Aššur l taqabbâni FIGURE 47484950

47

You shall not hear or conceal any evil, improper, ugly word which is not seemly nor good to Ashurbanipal, the great crown prince designate, son of Esarhaddon, king of Assyria, your lord, either from the mouth of his enemy or from the mouth of his ally, or from the mouth of his brothers, his uncles, his cousins, his family, members of his father’s line, or from the mouth of your brothers, your sons, your daughters, or from the mouth of a prophet, an ecstatic, a diviner, or from the mouth of any human being who exists; you shall come and report (it) to Ashurbanipal, the great crown prince designate, son of Esarhaddon, king of Assyria.

8.6: Esarhaddon’s Succession Treaty (=VTE) §10 (lines 108 –22)50

Weinfeld, Deuteronomy, 91–100. The important literary motif within the treaties and Neo-Assyrian letters of reporting disloyalty has been investigated by Rintje Frankena, “The Vassal-Treaties of 48

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However tantalizing the parallels, a more careful look is necessary. In the initial excitement over the similarities to the biblical material, the requirement to report in §10 has been taken out of its proper literary and legal context, and crucial details have been overlooked. The treaties and loyalty oaths were an important vehicle for assuring the loyalty of subjects, native and foreign, and a calculated instrument of Neo-Assyrian imperial expansion.51 They were first and foremost literary documents, the products of trained scribes, deliberate in their formulation and structure. What has not been recognized is that, just as Neo-Assyrian imperialism had an inevitable structure, consisting of a fixed sequence of three steps, no one of which was ever imposed without the other (political surrender; imposition of a treaty of “eternal vassalage”; total annexation),52 so does VTE possess an incremental structure in its redaction: disloyalty is defined and acted against in specific stages. As Figure 8.7 on the next page demonstrates, §§8–9 lay the groundwork, requiring loyalty and prohibiting disloyalty respectively. The second person addressee is adjured, positively, to be loyal (§8), and, negatively, to Esarhaddon and the Dating of Deuteronomy,” OtSt 14 (1965): 122–54 (at 142– 43); A. Leo Oppenheim, “The Eyes of the Lord,” JAOS 88 (1968): 173– 80; Weinfeld, Deuteronomy, 91– 94; idem, “Loyalty Oath,” 387– 89 (adding Greek sources); and Dion, “Deuteronomy 13,” 199–201. 49 This standard translation is inaccurate and depends upon the LXX, which is already preparing for its reinterpretation of the MT in the following verse. See Bernard M. Levinson, “Recovering the Lost Original Meaning of     (Deut 13:9),” JBL 115 (1996): 601–20; repr., ch. 7 infra. 50 The Akkadian is cited according to Kazuko Watanabe, Die adê-Vereidigung anlässlich der Thronfolgeregelung Asarhaddons (Baghdader Mitteilungen: Beiheft 3; Berlin: Gebr. Mann, 1987), 148. Where Watanabe cites variants, I have followed the eclectic text in the critical edition: Simo Parpola and Kazuko Watanabe, eds., NeoAssyrian Treaties and Loyalty Oaths (SAA 2; Helsinki: Helsinki University Press, 1988), 33. Subsequent citations are from these two volumes. I substantially depart from the translation model provided by Parpola and Watanabe here, however, so as to reflect the Akkadian more exactly (at lines 108, 115–16, 118, 119–20). Similarly, I have adjusted Watanabe’s normalization, consistent with CAD and subsequent work on Neo-Assyrian grammar. Here, accordingly, the construct genitive of pû(m), “mouth,” is normalized as p, not pî; “succession” is ridûti, not ridti; “prophet” (line 116) is normalized following the pattern for professional nouns as raggimu (so also CAD R, 67), rather than as the participle rgimu; and the assimilation of ventive –nim to the subordinate marker –ni yields –ninni, not –nenni. The latter form also follows Jaako Hameen-Anttila, A Sketch of Neo-Assyrian Grammar (SAAS 13; Helsinki: Neo-Assyrian Text Corpus Project, 2000). On the structure of the legal protasis, see Parpola and Watanabe, Neo-Assyrian Treaties, xxxviii–xli. Note the alternative approach advocated by Mario Liverani, “The Medes at Esarhaddon’s Court,” JCS 47 (1995): 57– 62 (at 59 n. 20). 51 Parpola and Watanabe, Neo-Assyrian Treaties, xv–xxv. 52 Simo Parpola, “Neo-Assyrian Treaties from the Royal Archives of Nineveh,” JCS 39 (1987): 161– 89 (at 161 n. 3).

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commit no disloyalty (§9). Then the terms of §§8–9 are logically extended in §10: the addressee must prove his loyalty by reporting disloyalty from any third party whomever. The formulation employs a double merism in order to stress its comprehensiveness: (1) either members of the royal family or the addressee’s own family; (2) either religious/mantic officiaries or the laity (any man). Consistently through §8 –10, as “Step 1,” disloyalty is defined only in fairly general terms as abutu l Åbtu, “an evil word” (§9, line 107; §10, line 108). Accordingly, that the apodosis in question requires the addressee to do nothing more than l taqabbâni, “you shall report” (§10, line 122) is a function of the specific legal situation, where no mortal danger to Ashurbanipal has yet been defined. §§

STEP 1: A.

8 9

GENERAL PRINCIPLES Addressee’s Personal Obligations to the Sovereign Loyalty defined and required Disloyalty prohibited: you shall not do evil to Ashurbanipal

B. 10

Addressee’s Loyal Response to Third Party Disloyalty Rumors of evil (whether from his family or yours, religious authorities or laymen) Protasis: remains indefinite Apodosis: you shall report

STEP 2: A. 11

INTENSIFICATION—THE THREAT OF ASSASSINATION Addressee’s Personal Obligations to the Sovereign Assassination prohibited: you shall not seize and kill Ashurbanipal

B.

Addressee’s Loyal Response to Third Party Disloyalty

12

Protasis: Apodosis:

13

Compound Stipulation: Situation-Specific Alternatives a)

Protasis: Apodosis:

If someone else incites you to assassinate Ashurbanipal Then seize and kill! (as first choice)

If chance encounter with rebels, or you hear news Then report

Escalation b)

Protasis: Apodosis:

If threat of allegiance shift and counter-treaty (adê) Then seize and kill!

FIGURE 8.7 The Literary Structure of Intensification in VTE

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The situation changes in Step 2. Like §9, §11 is a second person prohibition of disloyalty. Now, however, there is a clear increment: “you shall not seize or kill Ashurbanipal” (lines 126–27). That explicit danger of assassination is then logically made to derive from a third party source in order to define, in §12, the loyalty required of the treaty’s addressee (just as in the sequence of §§9 –10). Under the terms of the new protasis, the addressee is no longer adjured “to report.” Loyalty demands that he take immediate action:

šumma m m ni ana Aööur-bni-apli mari [öarri rabii ö]a b t ridûti mari Aööur-au-iddina öar mt Aööur b lkunu öa ina [m]uöu ade iss kunu iökunni su ba rtu öa d[uk]öu öamuttöu ulluqöu ana ka öunu [i]qba kkanni u attunu ina p m m ni taöamma ni

piönti öa brte l ta abbatninni ina mui Aööur-bni-apli mari öarri rabii öa b t ridûti l tubbalninni

If anyone speaks rebellion and insurrection to you, to ki[ll], assassinate, eliminate Ashurbanipal the [great prince] designate, son of Esarhaddon, king of Assyria, your lord, concerning whom he has concluded (this) treaty with you, or if you should hear it from the mouth of anyone, you shall seize the perpetrators of rebellion, and bring them before Ashurbanipal, the great crown prince designate: öumma ammar abtöunu If you are able to seize them duköunu ma a kunu l ta abbatöanni and kill them, then you shall l tadukköanni öumöunu zaraöunu seize them and kill them! You shall ina mti l tuallaqqni destroy their name and their seed from the land. öumma ammar abtöunu duköunu If you are unable to seize them l ma a kunu uzn öa Aööur-bni-apli and kill them, you shall inform mari öarri rabii Ashurbanipal, the great crown prince öa b t ridûti l tupatta ni iss öu designate, and stand by him to l [t]azzazzni piönti öa brte seize and kill the perpetrators l ta[ ]abbatni l tadukk[ni] of rebellion. FIGURE 8.8 Summary Execution as the Response of Choice to Incitement: VTE §12 (lines 130 – 46)53

53

The translation and the syntax in this paragraph are substantially my own, while indebted to Parpola and Watanabe. The latter’s translation of lines 139– 40 contains an error, omitting an important part of the protasis: l ta abbatšanni l tadukkšanni. Their rendering of duku as “to kill” in reference to Ashurbanipal, but “put to death” in relation to the rebels, is inconsistent and implies a concept of judicial process not suggested by the text.

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The redactional structure, which explains the different formulation of the protasis, also explains the different requirement in the apodosis. When the life of Ashurbanipal is at stake, then the response of choice is: “seize them and kill them.” The text implies, moreover, that not only the actual rebel, but also his progeny (öumöunu zaraöunu) should be slaughtered. Only as the second choice does “inform” take effect, and then simply as the means to the same end.54 From this point in the redactional structure on, the command to “seize and kill” becomes the normative response. One further example, parallel to the formulation of §12, makes it clear that summary execution is the response of choice to disloyalty: If anyone makes rebellion or insurrection against Esarhaddon, king of Assyria and seats himself on the royal throne, you shall not rejoice over his kingship but shall seize him and kill him. If you are unable to seize him and kill him, you shall not submit to his kingship nor swear an oath of servitude to him, but 54 The textual sequence is curious. What is the logic whereby “seize and kill” follows the requirement to “seize the perpetrators and bring them before Ashurbanipal?” If the response of choice is indeed to kill the rebels immediately (lines 138– 41), how then can the rebels be arrested and brought before Ashurbanipal (lines 136 – 38)? One possibility, of course, is that lines 138b– 46 are a redactional addition to lines 130 –138a, supplementing the original response (arrest) with the more forceful principle of immediate killing. Such elaboration need not be “secondary,” in the conventional sense, but could be part of the composition of the VTE, a text far more comprehensive than any of its peers, and which clearly reworks and expands older formulae and motifs. There is a strong case for an alternative explanation. Nothing in the text specifies that the captured rebels who are to be brought before Ashurbanipal need be still alive! They may already have been killed and brought to the court in a display of the addressee’s zealous obedience. There is some linguistic support for this hypothesis that what the adjuration means is that rebels are wanted: “Dead or Alive.” In the passage in question, where the addressee is required “to seize” the rebels, the verb is abtu. There are ten cases in VTE where this verb is used so that it has a human being as both subject and object (thus, not including cases where the throne, or rule, is seized, or where, in the curses, a bird is snared). Of the ten, only two do not specify death as involved in the seizure. One of these requires that the addressee, if seized by the enemy, should flee (line 177). The second implies that death is involved, given that it is a curse whereby the addressee and his family are seized by the enemy (line 540). The remaining eight attestations each employ abtu in conjunction with duku to create the formula “seize and kill” (lines 126 –27; 138 –39; 139– 40; 160; 246; 254 –55; 305– 6; 306 – 7). In other words, within the context of seizing either a royal prisoner (§11!) or a rebel (each of the remaining attestations above), the normal expectation is that seizure effectively means killing. There may be biblical evidence to support the idea that handing over rebels can mean the delivery of executed rebels by way of dramatizing one’s loyalty (and avoid the risk of punishment for complicity). Under siege, the wise woman of Abel of BethMaacah complies with Joab’s simple command,   , “Hand him alone over,” by delivering the decapitated head of the fugitive, Sheba ben Bichri, pursued as a rebel against David (2 Sam 20:21–22).

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That loyalty means, in extremis, personally slaying those who are disloyal—no matter their social standing or degree of blood relation—is not restricted to VTE. In the treaty imposed by the dowager queen Zakutu after Esarhaddon’s death in November 669, there is confirmation once again that disloyalty must be eradicated—in cold blood: u šumma attunu tašammâni tuddâni ma bu mušamhi te mušadbibte [[ša]] ina bertkunu l ina ša ziqni l ina ša rši l ina ašu l ina zari šarri l ina akunu l bl Åbtkunu l ina niš mti gabbu tašammâni [tuddâni l] ta abbatninni [l tadukkni ina] mui Zakti [ummöu u ina mui Aööur-bni-apli öar mt Aööur] [b lkunu l tubbalninni] FIGURE

and if you hear and know that there are men instigating armed rebellion or fomenting conspiracy in your midst— be they bearded or eunuch or his brothers or of royal line or your brothers or friends or anyone in your entire nation— should you hear and [know] (this), then you shall seize and [kill] (them)! You shall bring them to Zakutu [his mother and to Assurbani]pal, [king of Assyria] [your lord.]

8.9: Seize and Kill! (The Zakutu Treaty)56

Conclusions The analysis of the textual versions confirms the originality of the text:    (MT Deut 13:10). Similarly, the analysis of the Neo-Assyrian establishes the legal practice presupposed by that reading. Esarhaddon’s Succession Treaty and the Zakutu Treaty confirm that the MT of Deut 13:10 perfectly reflects normative Neo-Assyrian practice for dealing with a 55 VTE §26, lines 302–17; Parpola and Watanabe, Neo-Assyrian Treaties, 41 (emphasis added). 56 The normalization (rev., lines 18 –27) provided here has been prepared by me. The transcription on which it is based, as well as the translation, derive from Parpola and Watanabe, Neo-Assyrian Treaties, 64. The earlier publication with short commentary remains valuable: Parpola, “Neo-Assyrian Treaties,” 165–70. See now Sarah C. Melville, The Role of Naqia/Zakutu in Sargonid Politics (SAAS 9; Helsinki: The Neo-Assyrian Text Corpus Project, 1999), 87– 89. Melville uses the transcription and translation of Parpola and Watanabe.

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threat to the sovereign. Absolute loyalty to the sovereign requires the sacrifice of all other loyalties. Anyone undermining that primary commitment must summarily be executed. Recognition of the impact of the treaties upon the chapter does more than simply confirm the legal practice, in which there is no recourse to witness law. The cuneiform material also provides independent confirmation of the Hebrew text of Deut 13:10. Dion was troubled by the fact that the verb  does not occur elsewhere in Deuteronomy and makes that fact part of his argument for emendation.57 But this Hebrew verb corresponds exactly to Akkadian dâku, or Assyrian duku, to “kill.”58 The literary history of the chapter (the strong influence upon it of the Neo-Assyrian treaties, as Dion himself shows) thus explains both its distinct vocabulary as well as its departures from normative Israelite legal process. With both the text and the legal practice of Deut 13:10 assured, the real goal of Budde’s retroversion—to “restore” Deut 16:21–17:7 to its allegedly original position before 13:1—may finally be laid to rest.59 This 57

Dion, “Deuteronomy 13,” 154. Dion actually understates the anomaly, which is rather the occurrence altogether of this verb with a positive meaning in a legal context. The verb is attested only four times within the pentateuchal legal corpora. Other than here, the verb, as a positive legal requirement, is only attested at Lev 20:15 (where it is applied specifically to the beast, in a case of bestiality, and distinguished from the standard formula, applied to the man,  ) and at Lev 20:16, immediately following, where it is applied both to woman and beast—but then immediately reformulated with the just cited normative formula for judicial execution. In the other two cases, the verb denotes unjust murder (Exod 21:14; 23:7). 58 There are additional points of linguistic contact. Hebrew /, “in your midst” (Deut 13:2, 6, 12, 14, 15), is the inter-dialectical semantic equivalent of NeoAssyrian ina bertkunu in the treaties. In both cases, the adverbial phrase defines the location of the sedition. Note, for example: “If you hear and know that there are men instigating armed rebellion or fomenting conspiracy in your midst” (Zakutu Treaty, cited above, line 20). On this common terminology, see Levinson, Deuteronomy and the Hermeneutics of Legal Innovation, 132–33. 59 Budde, “Dtn 13 10,” 193– 97. For Budde, the question of the textual retroversion was absolutely inseparable from the textual rearrangement. The same is true for Weinfeld who essentially follows Budde text-critically while claiming to provide cuneiform supporting material (Deuteronomy, 92 n. 2; and 94– 95). It is therefore striking that Dion— while ostensibly basing his argument for the retroversion on the work of Budde and Weinfeld—never mentions the question of the textual relocation, which was crucial for both and provided the key to explaining the “corruption” that produced MT Deut 13:10 (“Deuteronomy 13,” 154). For a critique of the long-standing attempts to transpose Deut 17:2–7 to ch. 13, and a comprehensive explanation of its contextual coherence with Deut 17:8 –13, whereby both paragraphs work out the implications of cultic centralization for judicial procedure, see Bernard M. Levinson, The Hermeneutics of Innovation: the Impact of Centralization upon the Structure, Sequence, and Reformulation of Legal Material in Deuteronomy (Ann Arbor: University Microfilms, 1991), 325– 404; Eckart Otto, “Rechtsreformen in Deuteronomium XII–XXVI und im Mittelassyrischen Kodex

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argument incorrectly assumes that witness law operates in both cases. The Neo-Assyrian treaty material makes it clear that Deut 13:7–12 follows a different procedural norm and belongs to a different literary tradition.60 On what grounds does a state document require its addressee, without prior legal process and with not even a single mention of witnesses, summarily to kill someone, and thereby to bypass every conceivable social and judicial norm, indeed, the very rule of equitable law? On the NeoAssyrian side, I believe that the answer lies, first of all, within the kind of text that the treaty represents. Such provisions are inconceivable within the formal legal collections, where private disposition is tolerated only in spheres that are explicitly private, such as adultery, and where, even there, the state attempts to subordinate private action to public process.61 The adjuration, thus unique to the treaty corpus, to bypass due process and summarily to kill rebels, presupposes that due process and law have already been breached—and that only by means of eradicating disloyalty can proper order be reestablished. The bloody civil war that broke out after Sennacherib’s death in 681 left its mark on the successor he so controversially elected, Esarhaddon, who strived by every literary and legal means to make sure that succession would never again be so ruinously contested. The treaty adjurations aim to assure allegiance to the designated ruler and to the proper succession. Anyone who rebels intrinsically defines himself as having called into question the authority of law. As such, within the treaties and loyalty oaths, it is disloyalty and rebellion which constitutes the breach of due process. Accordingly, when one has caught the rebel in flagrante, as it were, summary execution constitutes the just means for the restoration of the rule of law. The treaty or loyalty oath is logically prior to such action and alone justifies it. Military law offers the best parallel. In the crisis created by a state of war, failure to obey an order from a superior is immediately punishable by summary execution. Disloyalty, especially in a state of emergency, jeopardizes the entire nation.

der Tafel A (KAV 1),” in Congress Volume: Paris, 1992 (ed. J. A. Emerton; VTSup 61; Leiden: E. J. Brill, 1995), 239–73; and Levinson, Deuteronomy and the Hermeneutics of Legal Innovation, 104 –37. 60 As Eckart Otto also suggested during discussion at the Deuteronomy Symposium (Johannes Gutenberg University, Mainz, 26 July 1993). 61 Eckart Otto demonstrates this in his analysis of the redaction of the Middle Assyrian Laws; see idem, “Die Einschränkung des Privatstrafrechts durch öffentliches Strafrecht in der Redaktion der Paragraphen 1–24, 50 –59 des Mittelassyrischen Kodex der Tafel A (KAV 1),” in Biblische Welten: Festschrift für Martin Metzger zu seinem 65. Geburtstag (ed. Wolfgang Zwickel; OBO 123; Fribourg, Switzerland: Universitätsverlag; Göttingen: Vandenhoeck & Ruprecht, 1993), 131– 66.

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On the Israelite side, these political issues become theologically charged, with Yahweh as the sovereign to whom absolute loyalty is owed. Both biblical and postbiblical evidence confirms that summary execution of apostates is the proper response to a religious emergency. In the account of the worship of the Golden Calf, Moses issues a challenge of loyalty:   , “Whoever is on Yahweh’s side—come to me!” (Exod 32:26). The Levites proved their loyalty by their willingness, without hesitation, to obey the imperative of Moses, each man to kill (imperative ) “his [own] brother . . . [and] his friend” ( . . .  ) and to take action “against his [own] son” (; Exod 32:27, 29). This is the very cluster of words found in Deut 13:7, 10.62 Similarly, in the related narrative of the Israelite apostasy at Baal Peor, Moses also employs the imperative:  , “kill!” (Num 25:5) In his religious zeal, Phinehas slays the Israelite man and Midianite woman, in flagrante, and is accordingly granted the covenant of the priesthood.63 Finally, postbiblically, 1 Maccabees 2 narrates that an officer of Antiochus IV travelled to the city of Modein to address the people assembled there and encourage them to offer a sacrifice in worship of the King. When a Jew moved forward to fulfill the officer’s command, Mattathias slaughtered him on the very altar that had been built, then killed the king’s officer, and destroyed the altar.64 Interestingly, this action, which begins the Maccabean revolt, is justified in the narrative with an explicit and propagandistic appeal to the actions of Phinehas, with whom Mattathias is explicitly compared (1 Macc 2:26). Deuteronomy 13, in the case of apostasy, requires that same readiness to kill as a litmus test of religious zeal and loyalty. The rhetorical situation—incitement to apostasy which has taken place in a situation where, by definition, there are no witnesses ( ; Deut 13:7)—is one where conventional judicial procedure is not to be expected, and where the injunction zealously to “kill” has its logical home.

Afterword In contrast to Anneli Aejmelaeus (infra, pp. 91–92), Horst Seebass accepts my argument for the originality of the MT.65 He concedes that his own earlier proposal to relocate Deut 17:2–7 to Deut 13 “ist aufzugeben” [should be given up].66 He disputes, however, my 62

See Seitz, Deuteronomium, 151. Within the scope of this chapter, it is impossible to address the logical question of whether there is any literary relation between Deut 13:10 and either of these two narrative parallels and, if so, in which direction. 64 As noted by Falk, Jewish Law, 2:94. 65 Horst Seebass, “Noch einmal zu Dtn 13,10 in Dtn 13,7–12,” ZABR 5 (1999): 186– 92. 63

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argument that Deut 13:10 envisions summary execution. Seebass provides the most meticulous defense I have seen of the notion that the rules of due process operate in Deut 13:7–12.66Here, I wish to address the methodological assumptions that govern our divergent conclusions. I maintain that the paragraph governing incitement to apostasy originating in the family (Deut 13:7–12) draws upon precedents found within the NeoAssyrian loyalty oath tradition and contemplates summary execution. In contrast, Deut 17:2–7 represents an intentional correction of this paragraph, revising it to introduce due process.67 Seebass claims instead that the legal corpus of Deuteronomy: (1) must be selfconsistent and free of internal inconsistency; and (2) was composed to function as a statutory legal code, whose articles were intended to be carried out.68 He does not adduce support from biblical or cuneiform law for either of these normative claims. Seebass’s model of Deuteronomy as a self-consistent and unified legal code means that he insists that the “Zweizeugenregel”—the law that requires the testimony of two witnesses as a precondition to conviction (Deut 17:6; 19:15)—must also operate in Deut 13:10. Where the required second witness would come from, however, is not clear, since the text specifies, to the contrary, that the enticement to apostasy takes place  , “in secret” (Deut 13:7). In order to save the consistency of the legal corpus and import witness law into Deut 13, Seebass in effect snips v. 10 out of the text and denies it any functional role: “Im MT ist das Gesetz also vollständig auch ohne V. 10.”69 The verse exists only to provide a detailed commentary upon the following verse: “Zudem ist das dtn Corpus nur widerspruchfrei, wenn man 13,10 . . . als Erläuterung zu V. 11a versteht!”70 This approach recalls the stock-in-trade strategy of harmonistic exegesis. I find it hard to reduce the urgent rhetoric of v. 10 to the category of simple “Erläuterung.” That the goal of creating a self-consistent legal corpus requires the functional excision of the problematic verse and the overlooking of cases where inconsistencies may exist in both biblical and cuneiform law suggests that an anachronistic conception of biblical law lies behind the arguments. That impression is strengthened with the article’s last sentence. Seebass contrasts Deut 13 with the allegedly different perspective whereby “ein Jesus-Logion in Mt 10,37; Lk 14,26 den Sachverhalt auf den religiösen Punkt gebracht hat, nun allerdings auf Jesus als Vicarious Gottes bezogen.”71 The perspective shifts here from historical-critical analysis to theological construction: Deuteronomy represents rigorous law whereas the New Testament offers the first religious reflection upon the potential conflict between love of family and love of God. This perspective, like the normative statements about non-contradiction and judicial implementation, appears imported from outside; such assumptions are not predicated on the basis of the text itself. 66 Ibid., 189n13. For the earlier position that he now retracts, see idem, “Vorschlag zur Vereinfachung literarischer Analysen im dtn Gesetz,” BN 58 (1991): 83–98. He does so in light of Udo Rüterswörden, “Der Verfassungsentwurf des Deuteronomiums in der neueren Diskussion,” in Altes Testament Forschung und Wirkung: Festschrift für Henning Graf Reventlow (ed. Peter Mommer and Winfried Thiel; Frankfurt: Peter Lang, 1994), 313–28; and Bernard M. Levinson, Deuteronomy and the Hermeneutics of Legal Innovation (New York: Oxford University Press, 1997), 104–9, 123–27. 67 Levinson, Deuteronomy, 118–23. Similarly on Deut 17:2–7, Georg Braulik, Deuteronomium II: 16,18–34,12 (NEchtB 28; Würzburg: Echter Verlag, 1992), 121, 125. 68 Seebass, “Noch einmal zu Dtn 13,10,” 191nn19–20. 69 Ibid., 190. 70 Ibid., 191n20. 71 Ibid., 192.

Part III

Debate And Dialogue: The Question of Method

Introduction to Part Three I learn how to think more sharply by engaging the work of scholars who raise fundamental methodological or theoretical questions about how to approach the biblical text. This is so whether or not I agree with the positions argued: simply the in-depth engagement in the approach of another colleague helps me understand my own ideas more closely and, ideally, leads to a constructive dialogue in both directions. The four articles gathered here engage the work of Raymond Westbrook, Calum M. Carmichael, J. Gordon McConville, and John Van Seters. Several larger themes tie them together, themes that go beyond the explicit question of how to read biblical law, whether the Covenant Code (as with Westbrook and Van Seters) or Deuteronomy (as with Carmichael and McConville). In all four cases, the real question is: How do we develop criteria to distinguish more and less powerful ways of reading the text? In this final section, the volume returns to the methodological issue introduced earlier in chapter 1: the relation of synchronic and diachronic method and the role of philology. Two main themes are addressed. First, I seek to demonstrate the difficulties that arise when a synchronic approach overlooks the extent to which it is also an interpretive construction (when its interpretive moves remain unconscious) or when it claims some kind of hegemony as to either theological significance or literary richness, as if diachronic method were somehow inferior, relegated to the realm of the merely technical or arbitrary. Second, I investigate what it means to claim that one particular reading of a biblical text is immanent, whereas the alternative is somehow not culturally appropriate or anachronistic. These issues arise both in Westbrook’s reading of the casuistic laws of the Covenant Code (chapter 9) and in Van Seters’s reading of the Covenant Code and Sinai pericope (chapter 12). Such arguments can easily be inverted and challenged on their own terms. It is certainly the case that I advocate strongly the diachronic method, which is to say, conventional source-critical and historical-critical approaches. I think it wrong, however, to consider me “guilty of completely overlooking synchronic concerns in favor of diachronic analysis,” as Peter T. Vogt recently claimed in his doctoral dissertation, completed with

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McConville (whose approach is the subject of chapter 9).1 Perhaps an adequate method, like beauty, lies in the eye of the beholder, since precisely the opposite charge has been directed against my work by Eckart Otto: “Insgesamt spielt die Frage literarischer Schichtung in [Deut] 12–26 eine für der Verf. eher untergeordnete Rolle” [In general, the question of literary stratification within Deut 12–26 plays a rather secondary role for the author].2 Contrary to Vogt, many of the essays in this volume (as in chapters 1, 2, 3, and 4) show not only my respect for the contributions of the synchronic approach but my own use of it as a way to access meaning. Conversely, there is an irony in Otto’s often-repeated critique, since my volume on Deuteronomy identified numerous points where his approach was arbitrary in its differentiation between Deuteronomic and Deuteronomistic strata or harmonistic in overlooking substantive legal differences between texts.3 The difficulty with synchronic scholarship is when it flattens out the specifics of a text and looks away from the “fault lines” and the rough edges of the text, out of the concern to make everything fit nicely, and as if they were not somehow part and parcel of the content of revelation. Textual coherence is a much richer concept than is frequently recognized. Coherence tends to be reduced to a Romantic notion of “original unity of authorship,” a position that must then defend the text from any notion of interpolation or redactional layering. But scholarship that is attentive to the synchronic interpretation of a text need not be harmonistic and need not deny the compositional and redactional history of a text. Attention to such issues may help make the contours of the text, both its literary sophistication and its theological differentiation, emerge even more significantly, as evident in the work of scholars such as Norbert Lohfink, Eckart Otto, and Jean-Pierre Sonnet (whose dissertation I helped direct). In doing research for my doctoral dissertation on Deuteronomy, I read widely on literary approaches to biblical law, because I believed that this dimension of the legal corpus had not received sufficient attention. Hoping 1

Peter T. Vogt, Deuteronomic Theology and the Significance of “Torah” (Winona Lake, Ind.: Eisenbrauns, 2006), 64. 2 Eckart Otto, review of Bernard M. Levinson, Deuteronomy and the Hermeneutics of Legal Innovation, ZABR 5 (1999): 329–38 (at 335); republished verbatim but for the first and last paragraphs as “Biblische Rechtsgeschichte als Fortschreibungsgeschichte,” BO 56 (1999), columns 5–20 (11). 3 In regard to Otto’s creation of two separate literary layers in Deut 13, Matthias Köckert reaches similar conclusions: “Ihr fällt faktisch all das zum Opfer, was von der vorausgesetzten literarischen Vorlage nicht abgedeckt wird.” See idem, “Zum literargeschichtlichen Ort des Prophetengesetzes Dtn 18 zwischen dem Jeremiabuch und Dtn 13,” in idem, Leben in Gottes Gegenwart: Studien zum Verständnis des Gesetzes im Alten Testament (FAT 43; Tübingen: Mohr Siebeck, 2004), 195–215 (at 199).

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to find a model that would clarify the connections of the legal corpus to other Israelite literature and make sense of Deuteronomy’s distinctive rhetorical techniques, I was initially drawn to the proposals of Calum M. Carmichael. As I worked through his publications, doubts began to emerge. To explain these concerns, I published my first journal article in 1990. Revised here as chapter 10, the article provides a detailed assessment of Carmichael’s theories about the nature, purpose, and construction of the laws of Deuteronomy. He has since moved on to examine Leviticus, first in an article that includes a response to my critique and more recently in a monograph.4 Since Carmichael is now applying the same theories and methods to the laws of Leviticus that he previously applied to Deuteronomy, the issues I originally addressed remain relevant. John Van Seters has recently published a response to the original version of chapter 12, charging me with “making exaggerated accusations and overstatements which tend to distort or confuse my position. . . .”5 Indeed, at one point where he pointed out a possible factual error, I corrected the text (p. 282 below), to show that J is not the latest stratum of the Pentateuch in his model, although he concedes that this point was already clear from the rest of the article. Van Seters has responded elsewhere as well.6 The reader must finally decide whether the chapter distorts his position. Since a complete response would require yet another article, I will address just one issue. As I argued in the original version of chapter 12: “A more immanent reading of the legal-religious literature of the ancient Near East demands recognition of redaction as an essential strategy of authorship” (p. 295 below). Van Seters retorts: “What I object to is characterizing any of this literary activity as editorial. The term author-editor is an oxymoron, a contradiction. It is precisely the history of redaction criticism that has 4

Calum M. Carmichael, “Laws of Leviticus 19,” HTR 87 (1994): 239–56 (at 240– 45); and idem, Illuminating Leviticus: A Study of Its Laws and Institutions in the Light of Biblical Narratives (Baltimore: Johns Hopkins University Press, 2006). 5 John Van Seters, “Revision in the Study of the Covenant Code and a Response to My Critics,” SJOT 21 (2007): 5–28. The article also responds to the reviews of Bernard S. Jackson, Eckart Otto, and, briefly, David P. Wright. 6 John Van Seters, “The Altar Law of Ex. 20, 24 –26 in Critical Debate,” in Auf dem Weg zur Endgestalt von Genesis bis II Regum: Festschrift Hans-Christoph Schmitt zum 65. Geburtstag (ed. Martin Beck and Ulrike Schorn; BZAW 370; Berlin: Walter de Gruyter, 2006), 157–74. For an alternative approach to the altar law, see the recent study by William Johnstone, “Exodus 20:24b: Linchpin of Pentateuchal Criticism or Just a Further Link between the Decalogue and the Book of the Covenant?” in Reflection and Refraction: Studies in Biblical Historiography in Honour of A. Graeme Auld (ed. Robert Rezetko, Timothy H. Lim, and W. Brian Aucker; VTSup 113; Leiden: Brill, 2007), 207– 22.

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created this problem.”7 This “contradiction,” however, is a product of his maintaining a rigid dichotomy between “author” and “editor,” a dichotomy that is itself bound to the western historical-social milieu out of which both notions arose. The terms “author” and “editor” as representing distinct concepts each rely upon the other for differentiation. To read these separate categories back into antiquity is where the anachronism arises. Much of cuneiform as well as Israelite literature is the product of sophisticated scribal compositional techniques where the modern dichotomy between author and editor simply does not apply. To be sure, Van Seters has done the field a service in his most recent book by highlighting the intellectual history of the concept of editing, drawing extensively on classical scholarship.8 His goal of eradicating the use of terms such as “editor” and “redactor,” while maintaining the use of “author” as alone valid, simply creates another anachronism by leaving the impression that ancient Israelite textual production should be understood in terms of the myth of the Romantic author. Authorship has an intellectual history, no less than the concept of editing, and this must equally be recognized.9 Jean-Louis Ska takes the mirror opposite approach, being so concerned to avoid the anachronism that he denies the category of authorship—in effect, of literary and intellectual originality—to antiquity altogether, in favor of the anonymous editor.10 I would argue that through their anonymous, pseudonymous, or theonymous compositions and interventions in the textual tradition, ancient scribes were able to introduce significant legal, literary, and religious transformations of tradition.11 Even if not working within the tradition of the “named author,” their capacity for originality should not be dissolved, as if everything were surrendered to tradition. Accordingly, in contrast to these two positions—either all “author” or all “editor”—I believe that my alternative model, whereby authorship and editing are not mutually exclusive, provides a more robust reading of the literary history of antiquity.

7

Van Seters, “Response to my Critics,” 18. John Van Seters, The Edited Bible: The Curious History of the “Editor” in Biblical Criticism (Winona Lake, Ind.: Eisenbrauns, 2006). 9 John Van Seters takes a very significant and constructive step in this direction in a recent article that responds to the critiques of Otto, Ska, and Levin. He reflects on the Romantic construction of the author and seems to want to overcome the dichotomy between authorship and editing. See idem, “Authors or Redactors,” Journal of Hebrew Scriptures 7:9 (2007). Online: http://www.arts.ualberta.ca/JHS/Articles/article_70.pdf. 10 Jean-Louis Ska, “A Plea on Behalf of the Biblical Redactors,” ST 59 (2005): 4 – 18; and idem, review of John Van Seters, The Edited Bible, Bib 89 (2008): forthcoming. 11 See Bernard M. Levinson, Legal Revision and Religious Renewal in Ancient Israel (New York and Cambridge: Cambridge University Press, 2008). 8

9. The Case for Revision and Interpolation within the Biblical Legal Corpora In “What Is the Covenant Code?,” Raymond Westbrook brings to bear on a specific corpus of biblical law the entire range of critical insights that he has developed over the past decade and which culminated in his recent book, Studies in Biblical and Cuneiform Law.1 Informed by that larger perspective, Westbrook here challenges the methodological and theoretical assumptions that govern rival approaches. Conventional literary and historical criticism bear the brunt of this critique. Westbrook contends that diachronic analysis, whether applied to the biblical or the cuneiform legal collections, is methodologically invalid and its assumptions, illegitimate. Ostensible textual inconsistencies, redundancies, or contradictions should not be diachronically resolved: they do not betray the work of later editors who revise or rework earlier material and do not represent additions or interpolations. Westbrook argues that such assumptions about the composition and editing of biblical and cuneiform law lack empirical evidence. “Empirical” is a key word in the essay: the thesis is that the compositional norms of the cuneiform legal collections mandate a different methodological stance than the diachronic one conventionally employed. The synchronic method is alone valid. The legal collections are “coherent text[s] comprising clear and consistent laws.”2 In other words, they possess original compositional unity, free of the imprint of secondary reworking. Moreover, the very assumption that such activity has taken place and that diachronic analysis is necessary to resolve the textual problems represents the imposition of an alien cultural paradigm. While diachronic analysis is entirely justified in the context of Roman law (Justinian’s Digest), its application to cuneiform and biblical law is invalid.

1

Raymond Westbrook, Studies in Biblical and Cuneiform Law (CahRB 26; Paris: J. Gabalda, 1988). 2 Raymond Westbrook, “What is the Covenant Code?” in Theory and Method in Biblical and Cuneiform Law: Revision, Interpolation and Development (ed. Bernard M. Levinson; JSOTSup 181; Sheffield: Sheffield Academic Press, 1994; repr., Sheffield: Sheffield Phoenix, 2006), 15–36 (at 36).

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Although it is not explicit in this essay, Westbrook’s approach entails an additional basic interpretive stance. In his book he extends the argument regarding the internal coherence of the individual legal collections to their external coherence relative to one another. Just as there are no inconsistencies or redundancies internal to the sundry collections—so too in absolute terms do the various legal corpora cohere in relation to one another. Each provides partial witness to a more systematic “common law” that subsumes the specific cases selected for discussion by the drafters of a particular legal corpus. Westbrook thus assumes a “meta-coherence” of all the legal collections relative to one another. Indeed, this assumption motivates his overall interpretive project, which is to unify and systematize that which has only fragmentary expression in a given corpus: “Our approach is a holistic one: to reconstruct the legal problem from all the sources available.”3 In light of this larger system, ostensible difficulties—gaps, repetitions, inconsistencies—whether within or between the legal collections, provide evidence neither of legal-historical development nor of literary reformulation. Instead, they implicitly represent divergent legal cases whose difference from one another may be reconstructed with reference to the selfconsistent, larger legal system, the existence altogether of which is Westbrook’s most crucial postulate. Few scholars have attempted so systematically to rethink the theory and the methodology for the study of biblical and cuneiform law. Westbrook attempts to provide an account of the constituent features of the legal corpus as a literary genre, including not only those collections found in southern, central, and northern Mesopotamia, ancient Israel, and Anatolia, but also, aspects of Greek and Roman law.4 Importantly, he emphasizes

3

Westbrook, Studies, 8. For an earlier attempt at such synthesis see Morton Smith, “East Mediterranean Law Codes of the Early Iron Age,” H. L. Ginsberg Volume (ed. Menahem Haran; EretzIsrael 14; Jerusalem: Israel Exploration Society, 1978): 38*– 43*; repr., idem, Studies in the Cult of Yahweh, vol. 1: Historical Method, Ancient Israel, Ancient Judaism (ed. Shaye J. D. Cohen; Religions in the Graeco-Roman World 130; Leiden: E. J. Brill, 1996), 84 –103. Smith’s stimulating article, which examines Israelite legal traditions in light of roughly contemporary collections and codifications of law from Egypt, Greece, and Rome has been widely overlooked. He notes parallels and seeks to account for them in light of similar social-economic conditions in the eastern Mediterranean, including extensive trade and cultural contact from the late 8th through early 5th centuries B.C.E. For more recent comparative attempts, see Anselm C. Hagedorn, Between Moses and Plato: Individual and Society in Deuteronomy and Ancient Greek Law (FRLANT 204; Göttingen: Vandenhoeck & Ruprecht, 2004), 60 – 89; and Gary N. Knoppers and Paul B. Harvey, “The Pentateuch in Ancient Mediterranean Context: The Publication of Local Law Codes,” in The Pentateuch as Torah: New Models for Understanding Its Promulga4

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the academic origins of the genre and attempts to reconstruct the intellectual activity underlying it: how it functions as a form of legal thought. His work, synthesizing legal history, Assyriology, and biblical criticism, effectively clears the scholarly deck of a number of long-standing, inappropriate models and attempts to forge a more valid and culturally immanent model. All of this constitutes an immense contribution to the field which merits a considered response. In such a comprehensive undertaking, some difficulties are inevitable. In this chapter I wish to examine Westbrook’s arguments for the coherence of the Covenant Code. I contend that Westbrook’s synchronic approach doubly contradicts its own mandate. First, diachronic analysis—in effect, classical literary criticism—is smuggled in through the back door, as the text is redefined, transformed or reconstructed in order to accommodate the theory. Second, the claim that the “empirical evidence” of cuneiform law requires compositional unity overlooks the extent to which that claim is itself an elaborate exegetical construction. Maintaining the claim requires specific techniques of harmonistic legal exegesis that are employed, when confronted with legal redundancy or inconsistency, ostensibly to solve the problem by arguing, “the cases are different.” In almost all such cases, the textual evidence to support these interpretations is at best ambiguous and thus the very claim of empirical verification is not based upon any clearly existing empirical evidence. The history of the discipline, moreover, problematizes the notion of what constitutes empirical evidence, a concept, after all, easier in the claiming than in the providing.5 Both synchrony and diachrony, finally, are interpretive constructs. The only question is, which better explains the textual phenomena? My position is that the compositional norms of cuneiform literature involve extensive redactional activity. That fact creates the logical expectation that Israelite literature, including the legal collections, should be consistent with such norms, and therefore involve revision and interpolation. Examination of selected cases within biblical law not only supports that expectation but shows diachronic analysis to provide a more powerful explanation of the details of given texts.

tion and Acceptance (ed. Gary N. Knoppers and Bernard M. Levinson; Winona Lake, Ind.: Eisenbrauns, 2007). 5 There have been previous attempts to reject diachronic analysis of biblical law as an unjustified construction by modern scholars who fail to understand the compositional norms of ancient legal texts. This is the position of Harold Marcus Wiener, “The Arrangement of Deuteronomy 12–26,” JPOS 6 (1926): 185– 95, esp. 185– 86 [republished, idem, Posthumous Essays (ed. Herbert M. J. Loewe; London: Oxford University Press, H. Milford, 1932), 26 – 36]. Wiener defends his claim by distinguishing biblical from cuneiform law on the basis of the religious component of the former.

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The Transformation of the Text Westbrook sharply rejects the diachronic analysis of biblical law, rejecting it as both obsolete and unjustified: Conventional wisdom regards the Covenant Code as an amalgam of provisions from different sources and periods, the fusion of which has left tell-tale marks in the form of various inconsistencies in the text. That view is based upon assumptions as to the history of the law and its expression which are unsupported by empirical evidence. At most they can rely on inappropriate models from the classical and later periods. Such models may have been acceptable in the last century, but since the discovery of massive quantities of cuneiform sources, they are no longer so.6

Two issues are here salient. The first is the dismissal of conventional methodology as empirically unjustified, with the implicit further claim that the analysis of cuneiform law self-evidently justifies Westbrook’s synchronic alternative. Second is the problem that the position that Westbrook ascribes to the consensus—that the Covenant Code represents “an amalgam of provisions from different sources and periods”—is in fact almost never held by classical literary or form critics. Westbrook defines “the ‘Covenant Code’ strictly so called” as Exod 20:22–22:16.7 The position that Westbrook rejects, however, more conventionally applies to the larger literary unit, the complex of material comprising the Covenant Code as a whole (Exod 20:22–23:33). That larger unit combines third person and second person law, casuistic and apodictic law, the altar laws that precede the legal superscription of Exod 21:1, parenesis alongside more normative legal forms, religious law alongside civil and criminal law, and so on. The Covenant Code thus conventionally comprises: Exod

20:22–26 21:1–22:16 22:17–23:19 23:20 –33

redactional transition and altar law miöpÅîm dbrîm parenetic conclusion

When classical biblical scholarship asserts the diversity of the Covenant Code, it is this larger heterogeneous complex whose (a) composition and structure, (b) relation to the surrounding Sinai narrative (whether original or secondary), and (c) source-critical attribution (note the parallels between Exod 23:10 –19 and 34:18 –26) it attempts to resolve. The position that Westbrook rejects—the assertion of internal inconsistency, needing to be diachronically resolved—has in fact been maintained, but for the whole 6

Westbrook, “Covenant Code,” 36. Westbrook is inclined also to include Exod 22:17–19 [ET 22:18 –20] (“Covenant Code,” 15). On the issue of the delimitation of the legal corpora, see further p. 217 below. 7

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of the Covenant Code (Exod 20:22–23:33), which falls outside of Westbrook’s investigation. Conversely, concerning Exod 21:1–22:16, the focus of Westbrook’s study, classical biblical scholars of previous generations displayed a remarkable unanimity that it is a coherent unit, with an intelligible arrangement and a consistent style: exactly the position that Westbrook maintains.8 Although Westbrook presents his polemic as one directed against a century-old consensus within biblical scholarship, his critique is mislabeled. Here and elsewhere he asserts that he rejects “the classic methods of biblical criticism.”9 He considers classical literary criticism valid for narrative strata or for dating the legal collections relative to one another, but invalid when applied to “a single code.”10 In the present article, he aims his specific criticisms at the work of Albrecht Alt, Eckart Otto, David Daube, Bernard S. Jackson, and Ludger Schwienhorst-Schönberger.11 None of these, however, is a classical literary or source critic. Alt is a form-critic, as Westbrook here recognizes. Similarly, with regard to Otto and Schwienhorst-Schönberger, at issue is not conventional literary criticism, but more recent developments in German form criticism and in redactionhistorical analyses of biblical law. Westbrook challenges the potentially circular reasoning of form criticism that a specific literary form derives from a distinct oral life-setting (Sitz im Leben) which is then reconstructed 8 Otto Eissfeldt, Einleitung in das Alte Testament: Entstehungsgeschichte des Alten Testaments (3d ed.; Tübingen: J. C. B. Mohr [Paul Siebeck], 1964), 284; ET, The Old Testament—An Introduction: The History of the Formation of the Old Testament (trans. Peter R. Ackroyd; New York: Harper & Row, 1965), 213. Strikingly, Martin Noth goes much farther than Westbrook in maintaining the coherence of the Covenant Code. He argues that the entire Covenant Code (Exod 20:22–23:19, minus its parenetic conclusion, 23:20 –33) circulated “als eine Einheit für sich” [“as a self-contained unity”] prior to and independent of the crystallization of the narrative sources; see idem, Das zweite Buch Moses: Exodus (6th ed.; ATD 5; Göttingen: Vandenhoeck & Ruprecht, 1978), 139– 40; ET, Exodus: A Commentary (trans. John S. Bowden; OTL; Philadelphia: Westminster, 1962), 173. The casuistic and apodictic material, while ultimately separate in origin, are fully coherent with one another within the Covenant Code (141; ET, 175). Noth even retains as original the participial series Exod 21:12 + 15–17 (often excised as secondary). The only material Noth considers extrinsic is the distinction between premeditated homicide and manslaughter (Exod 21:13–14), added to 21:12 (145; ET, 180). That conventional biblical scholarship generally agrees that Exod 21:1–22:16 reveals a “strictly uniform style” is also clear from Brevard S. Childs, The Book of Exodus: A Critical, Theological Commentary (Philadelphia: Westminster, 1974), 454. So pristine is this unit, Childs insists, that there are no signs even of redactional activity. The only interpolation he allows is the participially formulated unit 21:12–17, which he links with 22:18; otherwise it is free of secondary glosses (ibid., 456 – 57). 9 Westbrook, Studies, 7. 10 Ibid. 11 Westbrook, “Covenant Code,” 16 –19.

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by the critic.12 Cuneiform literature does indeed help establish that many biblical genres and texts have no life-setting, technically understood, but are rather conscious literary creations from the beginning.13 The remaining two scholars whose work Westbrook challenges, Daube and Jackson, are not originally “biblical scholars,” but legal historians who turn to rabbinic, biblical, and cuneiform law from the vantage point of expertise in classical and Roman law.14 In a sense, Westbrook’s real critique is of the application of models that derive from an alien rather than an immanent cultural context.15 He valuably demonstrates that such models leave some problems in the structure and sequence of Exod 21:37–22:3 unexplained.16 As for Alt’s classic study, in fairness, Westbrook’s critique should be nuanced in two ways. The first is that Alt’s point of departure in analyzing the Covenant Code—that “it consists of passages of different origin set side by side with virtually no formal connection”—does not refer to Exod 21:2–22:16, but rather to the larger complex of heterogeneous material in Exod 20:22–23:33.17 He regards the unit which Westbrook treats largely as 12

For a critique of the assumptions underlying earlier redaction-historical approaches to the legal corpus of Deuteronomy, see Bernard M. Levinson, The Hermeneutics of Innovation: The Impact of Centralization upon the Structure, Sequence, and Reformulation of Legal Material in Deuteronomy (Ph.D. diss., Brandeis University; repr., Ann Arbor: University Microfilms, 1991), 101–106. See further John Van Seters, A Law Book for the Diaspora: Revision in the Study of the Covenant Code (Oxford and New York: Oxford University Press, 2003), 9–29. 13 On such a basis Moshe Weinfeld properly rejects earlier attempts to identify the origins of Deuteronomy’s structure in levitical sermons. He argues, on the basis of cuneiform treaty literature, that Deuteronomy’s sermons do not have an oral Sitz im Leben but rather represent “programmatic compositions drafted by scribes.” See idem, Deuteronomy and the Deuteronomic School (Oxford: Clarendon, 1972; repr., Winona Lake, Ind.: Eisenbrauns, 1992), 8– 9, 54 –58. 14 See David Daube, Collected Studies in Roman Law (ed. David Cohen and Dieter Simon; Ius commune 54; 2 vols.; Frankfurt: V. Klostermann, 1991). See further Collected Works of David Daube, vol. 1: Talmudic Law; vol. 2: New Testament Judaism; vol. 3: Biblical Law and Literature (ed. Calum Carmichael; Studies in Comparative Legal History; 3 vols.; Berkeley: Robbins Collection, University of California at Berkeley School of Law, 1992–2003). That background contributes to the major study by Bernard S. Jackson, Wisdom-Laws: A Study of the Mishpatim of Exodus 21:1–22:16 (Oxford: Oxford University Press, 2006). 15 Westbrook, “Covenant Code,” 32–36. 16 Westbrook, “Covenant Code,” 18; see also idem, Studies, 120. Elsewhere, however, Daube’s “coda” model does provide a valuable explanatory model. Such issues must be decided on a case by case basis. 17 Albrecht Alt, “The Origins of Israelite Law,” in idem, Essays on Old Testament History and Religion (trans. R. A. Wilson; Oxford: Basil Blackwell, 1966), 79–132 (at 107, 104); trans. of Die Ursprünge des israelitischen Rechts (Leipzig: S. Hirzel, 1934);

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Westbrook himself does, as unified and coherent in origin, although he does allow some secondary accretions.18 Second, Alt’s emphasis on the range of formal divergence within the larger Covenant Code needs to be seen in its context within the history of scholarship. From the time of its emergence with Hermann Gunkel, form criticism was itself a reaction against literary criticism. Form critics attempted to move behind the late date assigned to each of the documentary sources of the Pentateuch. In working only with the final redaction, literary criticism relegated all biblical law “to what could in no way be called creative periods in the history of the law.”19 Alt emphasized the lack of form-critical cohesiveness within the larger Covenant Code so as to justify moving behind the late, redacted form of the text to the creative period, romantically conceived, of oral originality. He claimed that by analyzing the “prehistory” of each form he would be able to gain access to reliable information about the earliest periods of Israelite history. Casuistic law provides a window to the earliest settlement period; apodictic law, back even further, to the pristine desert experience.20 Although I do not find these assumptions tenable, it is important to recognize the motivation for Alt’s claims. Having established that classical literary criticism already maintains the same basic position that Westbrook here urges, and in some respects actually goes farther in recognizing coherence, it is important to compare how each handles certain difficulties within the unit (Exod 21:1–22:16). Two questions arise: (1) What interpretive strategies does Westbrook employ to defend the unit’s coherence? (2) What happens to the text when it is read synchronically?

Implications of the Denial of Development, Revision, and Interpolation Westbrook’s system can only assert textual coherence by means of classic techniques of textual harmonization well-known in postbiblical exegetical literature, both rabbinic and early Christian. The magic key is the assertion: “the cases are different.” In a system that promises epistemological certainty—diachronic analysis of cuneiform and biblical law is “unsupreprinted in idem, Kleine Schriften zur Geschichte des Volkes Israel (Munich: Beck, 1953) 1:278 –332. 18 Alt, “Origins of Israelite Law,” 112. The secondary material is principally the participial series of Exod 21:12 + 15–17 (ibid., 142– 44). 19 Ibid., 106. 20 Ibid., 132–34.

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ported by empirical evidence”21—it is best to put that claim to the test. I believe that Westbrook’s technique for saving the synchronic coherence of the text exacts too high a toll. Importing legal, logical, or grammatical references from other legal texts so as to provide a different application for a problematic passage frequently cuts against the grain of a given unit and substitutes a strained reading for a plain one. The clearest example occurs in the final chapter of Westbrook’s book in a discussion of one of the participial laws of the Covenant Code:          (Exod 21:16).22 As Westbrook indicates, Daube exploits what he purports to be the literal meaning (“He that steals a man and sells him and he is found in his hand shall be put to death”) to argue that the law does not make sense: once kidnapped and sold, how shall the man then be found in the possession of the kidnapper?23 Daube argues that the law incorporates an addition that derives from the growth in evidential procedure. Theft and attempted sale of persons were thus, in his reconstruction of the law’s original form, the necessary conditions for conviction for kidnapping: as such, “He who steals a man and sells him shall be put to death.” The addition of the allegedly disruptive phrase (“and he is found in his hand”) represents a new development in judicial procedure: now mere possession, even without sale, satisfies the requirements for sufficient evidence to convict. The context for Daube’s analysis is his chapter analyzing “Codes and Codas” in biblical law, where he maintains that, whether due to “laziness,” “undeveloped legal technique,” “writing on stone,” “oral transmission of the law,” or “regard for tradition,” there are “several examples in the Pentateuch,” as also in Roman law such as lex Aquila, “of the method . . . of new provisions being joined to an existing code as an appendix instead of being worked in properly.”24 Such claims about inept, primitive, or conservative editing of the legal collections provide the warrant for Westbrook’s repeatedly urging that we not attribute “apparent inconsistencies . . . to historical development and certainly not to an excess of either subtlety or incompetence on the part of their compiler.”25 The difficulty is that Westbrook’s alternative introduces new problems. He argues that there is no legal-historical development or interpolation in the verse. Instead, there is a concealed change of subject which extends the law to a third party not previously named, the person 21

Westbrook, “Covenant Code,” 36; similarly, 19, 24, 25. Westbrook, Studies, 119. 23 David Daube, Studies in Biblical Law (Cambridge: Cambridge University Press, 1947), 95 (cited by Westbrook, Studies, 119 n. 29). 24 Daube, Studies in Biblical Law, 77. 25 Westbrook, “Covenant Code,” 36. 22

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who purchases the kidnapped man. Thus he renders the verse: “He that steals a man and sells him and he in whose possession he is found shall be put to death.”26 This proposed English rendering of Exod 21:16 cannot be derived from the original Hebrew. Such a “translation” would require, at the very least, a crucial relative pronoun not present in the Hebrew:    . The “translation” thus in effect rewrites the text, revising it to support an interpretation of the text as coherent. Notwithstanding this philological issue, Westbrook defends his solution on two counts. First, he cites Reuven Yaron’s analysis of the Laws of Eshnunna to assert that unmarked changes of subject are not uncommon in cuneiform law.27 Second, he argues that this law corresponds to Laws of Hammurabi (hereafter, LH) §6, in mandating capital punishment for the recipient of stolen goods—the reference to whom is marked by the relative pronoun ša—as well as for the thief himself. In each case there is a difficulty. In the first instance, Westbrook’s new translation requires not simply, as he suggests, “a change of subject” but rather the introduction of an entirely new subject, a third party to the transaction who is unmentioned in the protasis. Despite Westbrook’s citation, Yaron’s point about the change of subject does not refer to that type of change but instead covers the situation that obtains here with the verse as conventionally translated. Sometimes the direct or (indirect) object of the protasis (“He who steals a man”) may become a subject in the apodosis (“whether he sells him or he is found in his possession”).28 In the second instance, Westbrook justifies his appeal to LH §6, despite its governing theft of property rather than kidnapping, on the basis of the common requirement for capital punishment. Given the broad range of cases in the Laws of Hammurabi with this penalty, that provides insuffi26

Westbrook, Studies, 119 (emphasis added). Ibid., 118 –19. Westbrook contends that Hittite Laws §70 manifests (1) a similar unmarked change of subject, accompanied by (2) the equally unmarked introduction into the law of a new party: the (fraudulent) holder or recipient of stolen goods. The analysis conflates the protasis of Hittite Laws §71 (where there is explicit mention of finding, using the verb wemiyha–, “to find, to come across”; see also §45) with the quite different situation of §70, where that vocabulary is absent, and which is concerned rather with theft (using the verb tya/i–, “to steal [something]”). The reconstruction of the legal situation of the laws posited by the author comes very close, mutatis mutandis, to the elaborate reconstructions of social or redactional history that he normally rejects as conjectural. On the Hittite Laws in question and their vocabulary, see Harry Angier Hoffner Jr., The Laws of the Hittites: A Critical Edition (Documenta et Monumenta Orientis Antiqui; Leiden: E. J. Brill, 1997), 78– 80, 53–54, 307, 301. 28 Reuven Yaron, The Laws of Eshnunna (2d ed.; Jerusalem: Magnes; Leiden: E. J. Brill, 1988), 95– 96, discussing Laws of Eshnunna §§9, 22, 37. In none of these cases is a party not already explicitly mentioned in the protasis introduced as a new subject of the apodosis. (Westbrook [Studies, 119 n. 28] cites Yaron’s first edition, pp. 58 –59.) 27

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cient rationale for claiming legal analogy. Further, although LH §6 indeed penalizes the recipient of stolen goods (who has not demanded that the sale be accompanied by witnesses and contract; see LH §7), this case has no obvious bearing on the specific legal problem at issue Exod 21:16. To the best of my knowledge, in none of the cases found within the cuneiform legal collections involving theft of persons, whether free or slave, is there any mention of third party liability.29 Attempting to save the coherence of the text, Westbrook in fact creates a new text consistent neither with the original Hebrew verse in question (Exod 21:16) nor with the terms of the cuneiform provisions that he considers analogous to it. The proposed synchronic interpretation, despite claiming to be empirically grounded in compositional norms, thus doubly undercuts its own claims. First, the new reading of Exod 21:16 lacks clear empirical ground, both grammatically and legal-historically. Second, the very attempt to reject literary criticism nevertheless smuggles in textcritical restoration through the back door. A new, problem-free text is created by means of exegetical suppletion: details allegedly missing in one context are imported from another on the assumption of analogy.30 I agree with Westbrook’s rejection of Daube’s argument. I would defend the law’s coherence philologically, however, in terms of syntax, rather than by means of harmonistic legal exegesis. Westbrook’s reconstruction presupposes that the conjunction waw in this verse is restricted to the meaning “and”; that assumption is the source of the improbable reading that he seeks to correct. Rather than being taken for granted ab initio, however, such an assumption should be tested against the standard grammars. It has long been recognized that waw has a broader range of semantic functions and can, in many contexts, carry the meaning “or.”31 29

LH §14 (free), 17–20 (slave); Hittite Laws §19 (free), §§20 –21 (slave). On this tendency to harmonize, see Reuven Yaron, review of Raymond Westbrook, Studies in Biblical and Cuneiform Law, Zeitschrift der Savigny-Stiftung für Rechtsgeschichte, Romanistische Abteilung 107 (1990): 417–33. 31 Bruce K. Waltke and Michael Patrick O’Connor point out that in “subordinate clauses” waw may serve the same function as  . Waltke and O’Connor cite Exod 21:16 and Deut 24:7 as examples. See idem, An Introduction to Biblical Hebrew Syntax [henceforth = IBHS] (Winona Lake, Ind.: Eisenbrauns, 1990), 654 n. 21 (§39.2.6b). Paul Joüon and Takamitsu Muraoka also cite the same two verses and state that “ . . .  can signify either . . . or, whether . . . or . . .” (A Grammar of Biblical Hebrew [2d ed.; SubBi 14/1– 2; 2 vols.; Rome: Pontifical Biblical Institute, 1993], 2:645 [§175b]). See also the new and revised edition: (3d ed.; SubBi 27; 2 vols. in 1; Rome: Pontifical Biblical Institute, 2006), 605 (§175b). Exod 21:16 is also cited as an example of alternative waw in Ronald J. Williams, Hebrew Syntax: An Outline (2d ed.; Toronto: University of Toronto Press, 1976), 71 (§433); see also the new edition, Williams’ Hebrew Syntax (revised and expanded by John C. Beckman; 3d ed.; Toronto: University of Toronto Press, 2007), 153 (§433). 30

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The evidence was already systematically presented in the first half of the 11th century by Jonah ibn Jan  (Abu al-Wal d Marw n), the Spanish Hebrew grammarian and lexicographer, citing this verse.32 In particular, in many instances in biblical law, or in quasi-legal authoritative pronouncements, waw functions to introduce alternatives (“either A or B”) into a protasis or an apodosis: Gen 26:11; Exod 12:5; 20:4; 22:9a; Lev 2:4b; 20:9; 25:47a; Deut 22:2a; 24:7.33 The clearest proof may be found in Deuteronomy 13. Attempting to incite to apostasy, a false prophet or oneiromancer may offer    , “a sign or a wonder” (Deut 13:2). Nevertheless,    , “[even] if the sign or the wonder come true” (Deut 13:3), the prophet or oneiromancer must not be heeded. The 32

Jonah ibn Jan  (Abu al-Wal d Marw n), Sefer ha-Rikmah [Kitb al-Luma (The Book of Variegated Flower-Beds)] (translated from the Arabic into Hebrew by Judah ibn Tibbon; ed. Michael Wilensky; 2d ed.; 2 vols; Jerusalem: Academy for the Hebrew Language, 1964), 1:76 ( ), line 19 (Hebrew). 33 For an alternative view of the issue, see Richard C. Steiner, “Does the Biblical Hebrew Conjunction – Have Many Meanings, One Meaning, or No Meaning at All?,” JBL 119 (2000): 249– 67 (at 261– 63). Steiner, as part of a challenge to the “polysemy” of conjunctions in Hebrew, uses the methodology of transformational grammar to argue against the idea that the copula carries the meaning “but,” “while,” “or,” “then,” “that is,” or finally even “and.” Despite the challenge, which is greatly enriched by his control of medieval Arabic and Hebrew lexicography, his position is not inconsistent with the arguments presented here. He directs attention to the verse:       (Exod 21:17). In order to deny the “or” function to the waw, he “translates” the surface structure formulation into the deep structure from which it derives, and thus contends that the surface “or” derives from “a Coordination Reduction transformation. . . . The logical structure of the verse [Exod 21:17] is, ‘If a man curses his father he shall be put to death, and if a man curses his mother he shall be put to death,’ that is, if p, then r, and if q, then r. However, consolidation of the two clauses through deletion of redundant elements and rearrangement makes it look as though the verse were derived from the logically equivalent if p or q, then r” (261). Accordingly, Steiner recognizes that, whatever the lexemic function of waw in the deep structure, in this utterance its surface realization means “or.” While Steiner may disagree with Ibn Jan , whom he cites, on the theoretical question of whether waw is polyvalent, he nonetheless takes for granted the latter’s halakic exegesis of the verse as accurate, whereby it means: “One who curses [either] his father or his mother shall be put to death.” Otherwise, the deep structure could just as easily have been: if p and q, then r, or “He who curses [both] his father and his mother shall be put to death”: a position that, in theoretical terms, is both legally and exegetically possible. There is thus a tension between his grammatical argument (following Profiat Duran, the desire to retain a consistent copula function of “and” for waw) and his interpretive recognition that waw here functionally means “or,” a position informed by the history of legal exegesis. A change of perspective might be more consistent. This would entail, with many linguists, considering conjunctions (including the Hebrew copula) not as part of the lexicon of a language but rather as part of its transformational rules—that is, as not having an intrinsic meaning but rather a syntactic function. Steiner seems to move toward such a position in his conclusions.

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reformulation with waw, employing a singular verb and immediately following the use of the conjunction  to express the same alternative, confirms that the two phrases are identical in meaning. This understanding of the syntax also applies to the verse in question within the Covenant Code. That the waw on the second term of Exod 21:16 is not cumulative or sequential but alternative in function is evident within the same distinctive series of participial formulations in the Covenant Code among which this law is found. In both Exod 21:15 and 21:17,34 the meaning has to be: “Whoever strikes his father or his mother”; “Whoever curses his father or his mother.”35 The confusion in the case of Exod 21:16 is created by this waw which expresses the alternative ( ) being found after the conversive waw ( ). The correct translation is: “Whoever steals a man, whether he sell him or he is found in his hand, shall surely die.”36 Moreover, the law concerning theft of persons in Deut 24:7 confirms that, at least by the time of the composition of Deuteronomy, the form  was already in the text of the version of the Covenant Code that lay before Deuteronomy’s authors.37 Deuteronomy retains both the legal topos (man theft) and the key terminology (finding, stealing, selling). Deuteronomy restricts, however, the law’s application to Israelite victims and moves the problematic clause with “finding” into the protasis of the law,

34

Waltke and O’Connor note Exod 21:17 as an example of where waw expresses an alternative “within a construct phrase” (IBHS, 654 n. 20 [§39.2.6b]). 35 Following Ibn Jan , Gershon Brin makes the same analogy and also argues for the use of the copula to express “or” at Exod 21:16a in “The Development of Some Laws in the Book of the Covenant,” in Justice and Righteousness: Biblical Themes and their Influence (ed. Henning Graf Reventlow and Yair Hoffman; JSOTsup 137; Sheffield: JSOT Press, 1992), 60 –70 (at 62– 63). As I have above, Brin demonstrates this usage as a broader syntactical possibility in his “The Uses of  (= or) in the Biblical Legal Texts,” in Shnaton: An Annual for Biblical and Ancient Near Eastern Studies, vols. 5– 6 (ed. Moshe Weinfeld; 2 vols. in 1; Jerusalem: Israel Bible Society, 1982), 19–26 (at 25–26) (Hebrew). Interestingly, in “Development,” Brin attempts to retain Daube’s diachronic reading of the law as the law’s original form, whereby the phrase would mark a later legal amendment, while he also stresses the coherence of the law in its current form because of the “or” function of the copula. This two stage proposal seems problematic, however, in maintaining that the same law is simultaneously coherent and incoherent. 36 The medieval exegete Abraham ibn Ezra implicitly recognized this fact. With his remarkable insight that simple possession, without sale, constituted sufficient grounds for capital punishment for kidnapping, Ibn Ezra established his independence of the entire thrust of classical and medieval Judaism’s understanding of the law. See his Commentary on the Torah (ed. Asher Weiser; 3 vols.; Jerusalem: Rav Kook Institute, 1977), 2:149 (Hebrew). 37 See Michael Fishbane, Biblical Interpretation in Ancient Israel (2d ed.; Oxford: Clarendon, 1988), 189.

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               , thereby eliminating the syntactical ambiguity:38

“If a person is caught stealing a person from among his fellow Israelites, whether he enslave him or sell him, that thief shall die; thus shall you remove evil from your midst” (Deut 24:7).39 A similar issue, whether the synchronic analysis compromises the plain sense of the text, arises in relation to the long problematic series addressing (A) theft of animals (Exod 21:37 [ET 22:1]); (B) housebreaking (22:1–2a [ET 2–3a]); (C) and requiring restitution if stolen cattle are still in the possession of the thief (Exod 22:3 [ET 4]). So problematic is the present arrangement of the text that both NEB and NRSV, in their translations, re-order the sequence of the verses. The NEB rearranges the sequence so that C precedes B, thereby joining the two provisions dealing with theft (A and C) and neatly separating off as a different topic the house owner’s liability in case of burglary (B). The allegedly restored sequence is thus Exod 21:37 + 22:3; 22:1–2 (ET 22:1 + 22:4; 22:2–3a). The approach of 40 NRSV is even more convolute. Westbrook comprehensively challenges the legal-historical claims used by Daube and by Jackson to account for the present disorder. His detailed critique of their assumption that Exod 22:3 is in effect a coda, added to the original text because of a later development in the laws of evidence, from primitive (the necessity of slaughter or sale to establish guilt, in Exod 21:37) to more sophisticated (mere possession with intent) is 38

Strikingly, both the Palestinian exegetical tradition, reflected by Targum PseudoJonathan (Ernest G. Clarke, Targum Pseudo-Jonathan of the Pentateuch: Text and Concordance [Hoboken, N.J.: Ktav, 1984], 92), and the Babylonian, reflected by Targum Onqelos, harmonize the original law with its reformulation—by introducing Deuteronomy’s restriction of the law to Israelite victims into the text of Exod 21:16, which was unqualified in its formulation. 39 In my translation of  as “enslave,” I follow the RSV, the NJPS, and the Einheitsübersetzung. Nonetheless, the Targumic tradition understands the hitpael verb, which is unique to Deuteronomy (see also 21:14), rather differently, as “make a profit from.” Defending this rendering as the word’s original meaning, see M. David, “Hitm r” [sic], VT 1 (1951): 219–22. The postbiblical tradition is not uniform, however. Legal exegesis in the Tannaitic period understood the violation in question to involve “abducting the victim and forcing him to reside with the abductor, i.e., taking him into the abductor’s possession.” For this analysis of Sipre Deuteronomy, pisqa 273 (ed. Louis Finkelstein [New York: Jewish Theological Seminary, 1969], 293), with justification in the Aramaic dialects, see Isaac B. Gottlieb, “Midrash as Biblical Philology,” JQR 75 (1984): 134– 61 (at 148– 49). If this notion of forcible possession is correct, it is possible that the Sipre preserves an ancient tradition of the word’s meaning in Northwest Semitic. Note the recourse to Ugaritic by Albrecht Alt, “Zu Hitamm r,” VT 2 (1952): 153–59. 40 Exod 21:37 + (22:2b, 3, 1, 2a); ET 22:1 + (22:3b, 4, 2, 3a).

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entirely convincing. Here again the arbitrariness of legal-historical models which treat the texts as statutory law is confirmed.41 The difficulty arises with Westbrook’s alternative solution. Once again, the attempt to preserve the original coherence of the text creates what is, in effect, a new text. The assumption, as with his explanation of Exod 21:14, is that there has been a change of subject. Exod 22:3, Westbrook argues, does not address the same case as Exod 21:37, nor does it have that thief as its subject. Instead, the verse actually refers to a third party, the unwitting purchaser of stolen goods, a legal motif found in cuneiform law.42 Consequently, Westbrook maintains, the case here is different from the one immediately preceding. In Exod 22:2b the housebreaker (of 22:1–2) must either negotiate an unspecified price to purchase his freedom once he has been apprehended ( , “he shall surely pay”) or else become indentured to the house owner on account of his attempted burglary (     %  , “if he lacks the means, he shall be sold for his theft”).43 There are several difficulties involved in this attempt to defend the text’s coherence. First, there is no evidence to support the notion that Exod 21:37 addresses the liability of an innocent purchaser.44 Granted, the liability of the purchaser who does not seek witnesses and a contract is a wellknown and explicit motif in the cuneiform legal collections (LH §6– 7, 9– 13).45 Nevertheless, biblical law, with less emphasis on such contractual transactions, never, to the best of my knowledge, addresses the question of third-party liability: the issue is not among the legal topics. Second, the claim that Exod 22:2b refers to the housebreaker apprehended in the act and “sold for his theft” because he cannot afford “the ransom for his freedom” does not find support in the text or its language: (a) if ransom ( ) were indeed imposed upon him ( ), why does none of the expected technical terminology appear, as it does elsewhere in this unit (for example, Exod 21:30)?; and (b) what is the meaning of  , “for his theft” (Exod 22:2b) when, as Westbrook concedes, in effect no theft has been committed since he has been apprehended?46

41

Westbrook, Studies, 111–13; and idem, “Covenant Code,” 6 – 7. Westbrook, Studies, 118 –19. 43 Ibid. 44 See also Ludger Schwienhorst-Schönberger, Das Bundesbuch (Ex 20,22–23,33): Studien zu seiner Entstehung und Theologie (BZAW 188; Berlin: Walter de Gruyter, 1990), 184. 45 Raymond Westbrook and Claus Wilcke, “The Liability of an Innocent Purchaser of Stolen Goods in Early Mesopotamian Law,” AfO 25 (1974/1977): 111–21. The “threecornered presentation” is also stressed at Westbrook, Studies, 115. 46 Westbrook, Studies, 126. 42

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The attempt to maintain the compositional coherence of Exod 21:37– 22:3 requires rewriting the text by means of exegesis, importing antecedents or legal applications that are extrinsic to the given text’s formulation, language, and range of legal-literary problems. Finally, the synchronic reading fails to clarify how and why Exod 22:1–2a enters the picture.47 The unit, particularly v. 2a, remains intrusive in the context of theft or burglary laws because it addresses a different issue: the limits to the homeowner’s right of legitimate self-help. If the synchronic reconstruction of the text compromises its meaning, I believe that the diachronic method allows the coherence of the text to emerge. The logically structured original law was composed of a paradigmatic case followed by two sub-cases: General statement of legal principle: multiple damages for slaughter or sale of stolen animals (21:37); First contingency: indenture of the thief who is unable to pay multiple damages (22:2b); Second contingency: lesser damages for simple possession (22:3).48

The coherence of that original law was broken both syntactically and in terms of the legal topic with Exod 22:1–2a. In Exod 22:2, the difficult  , “he shall surely pay,” lacks any clear antecedent: contextually it can refer neither to the homeowner nor to the housebreaker of 22:1–2a. The phrase also lacks any grammatical object or complement. Thus syntactically detached from its context, the phrase marks a Wiederaufnahme or repetitive resumption.49 It repeats the key verb of the apodosis of 21:37b: , “he shall pay.”50 In the context of a law otherwise concerned with 47 Neither the summary of the problematic sequence of the unit in “What is the Covenant Code?,” 6, nor of the solution to the problematic found in Studies, 128, directly addresses the house owner’s liability for homicide should he kill a burglar by day (Exod 22:2a). 48 My presentation here draws on helpful comments offered by Stephen A. Kaufman who, however, analyzes Exod 21:37–22:3 synchronically (email communication). 49 Eckart Otto provides a similar analysis; see idem, review of Raymond Westbrook, Studies in Biblical and Cuneiform Law, TRev 86 (1990): 283– 87 (at 287). For analysis of and bibliography on this editorial device, which brackets an interpolation by framing it with a repetition of material preceding the insertion (thus ABC X C DEF), see Bernard M. Levinson, Deuteronomy and the Hermeneutics of Legal Innovation (New York and Oxford: Oxford University Press, 1997), 17–20. 50 For the most detailed discussion of the syntactical and legal-historical issues, with extensive literature, see Schwienhorst-Schönberger, Das Bundesbuch, 175– 82. I disagree, however, with his conclusion that Exod 22:2b represents part of the interpolation, rather than part of the original law. For solutions analogous to the one proposed here, although differing in some details, see also Eckart Otto, Wandel der Rechtsbegründungen in der Gesellschaftsgeschichte des antiken Israel: Eine Rechtsgeschichte des ‘Bundesbu-

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liability for the theft of animals, the repetitive resumption frames a new law with an entirely different legal focus, whose concern is to distinguish legitimate versus illegitimate homicide in the case of housebreaking (22:1– 2a [ET 2–3a]).51 This is not the context to address the ethical, legal, and religious issues implicit in the redactor’s disruption of this theft series with the addition of Exod 22:1–2a, which restricts the homeowner’s right of self-help. Jacob J. Finkelstein argued that the “digression” represents the intentionality of an author concerned to establish fundamental moral categories and to distinguish between wrongs against the person and wrongs against property.52 While his analysis is very illuminating, he errs in considering the entire text to be the work of a single author. The disruptions of syntax and grammar, in conjunction with the total shift in legal topic, tip the balance decisively in favor of a diachronic analysis: the disruption represents an interpolation in which a redactor revises an original civil law to reflect upon the moral and ethical limits to self-help. The redactor employs the Wiederaufnahme as a literary device to bracket the interpolation, which thus serves as the elegant signature of his handiwork.53

ches’ Ex XX 22–XXIII 13 (StudBib 3; Leiden: E. J. Brill, 1988), 19–21; idem, Rechtsgeschichte der Redaktionen im Kodex Ešnunna und im «Bundesbuch» (OBO 85; Freiburg, Switzerland: Universitätsverlag; Göttingen: Vandenhoeck & Ruprecht, 1989), 76 – 77; and Yuichi Osumi, Die Kompositionsgeschichte des Bundesbuches Exodus 20,22b–23,33 (OBO 105; Freiburg, Switzerland: Universitätsverlag; Göttingen: Vandenhoeck & Ruprecht, 1991), 128. 51 The interpolation, although not the technical device for including it, has long been recognized. Note L. B. Paton, “The Original Form of the Book of the Covenant,” JBL 12 (1893): 82; and James Edward Hogg, “Exod. 22:23 [sic, read 2–3] (‘Nocturnal Thief ’ and ‘Restitution’),” AJSL 44 (1927): 58– 61. Hogg cites the unit according to the English verse numbers rather than the MT. 52 Jacob J. Finkelstein, The Ox That Gored (Transactions of the American Philosophical Society, 71:2; Philadelphia: American Philosophical Society, 1981), 38 –39. 53 An interpolation should never be claimed merely on the basis of the device alone, but only when other, independent criteria also exist. I leave open here the question of whether the device, particularly in legal material, intrinsically marks interpolations, or whether it may also be used compositionally. Provisionally, I believe the former is the case. Nonetheless, especially in some narrative contexts, there is evidence that the repetitive resumption may be compositional rather than redactional in origin and thus not have diachronic significance; see Shemaryahu Talmon, “The Presentation of Synchroneity and Simultaneity in Biblical Narrative,” in Studies in Hebrew Narrative Art throughout the Ages (ed. Joseph Heinemann and Samuel Werses; ScrHier 27; Jerusalem: Magnes, 1978), 9–26; repr., idem, Literary Studies in the Hebrew Bible: Form and Content (Jerusalem: Magnes Press; Leiden: E. J. Brill, 1993), 112–33. The question can only be decided, of course, on a case-by-case basis.

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Revision and Interpolation Elsewhere in Biblical Law In attempting to compare how synchronic and diachronic readings work, I have thus far concentrated only on the casuistic section of the Covenant Code. I would like to submit a pair of examples from other legal corpora within the Bible, where I think the evidence for revision and interpolation is undeniable. Because Westbrook rejects both phenomena, it is crucial first to address a question of literary demarcation. It is well-known that biblical law combines cultic, criminal and civil, and ethical law; in general, the cuneiform collections, with the exception of the Middle Assyrian and Hittite Laws, rarely have such a mixture, and primarily include criminal and civil law.54 Given the reality of the profound transformations in Israelite religion to which the cultic laws in particular testify, they might logically be expected to provide sites where reformulation would occur.55 Strikingly, however, Westbrook excludes them from consideration. Westbrook contends that the biblical legal “codes” are comprised of “the legal corpus of the Covenant Code (Ex 21,2–22,6 [sic; must be a typo for 22,16]) and of Deuteronomy (Dt 21,1–25,11).”56 I have already noted that the more conventional demarcation of the Covenant Code is Exod 20:22–23:33; that of the legal corpus of Deuteronomy is Deut 12:1–26:19. Westbrook’s attempt to exclude the Holiness Code of Lev 17:1–26:46 as having “a different subject-matter”57 is unjustifiable because it employs a criterion—topical similarity to the cuneiform legal collections—that imposes an arbitrary, external standard upon the biblical material. Moreover, multiple points of topical overlap among the biblical corpora have long been noted.58 Whatever the criteria for these demarcations, they are not empirically grounded: the author does not justify them in relation to specific literary or 54

See Benno Landsberger, “Die Babylonischen Termini für Gesetz und Recht,” in Symbolae ad Iura Orientis Antiqui pertinentes Paulo Koschaker dedicatae (ed. Theunis Folkers et al.; SD 2; Leiden: E. J. Brill, 1939), 219–34, esp. 221–23. 55 Elsewhere I demonstrate ongoing inner-biblical reformulation of the conception of divine justice as involving vicarious punishment. See Bernard M. Levinson, “ ‘You Must Not Add Anything to What I Command You’: Paradoxes of Canon and Authorship in Ancient Israel,” Numen 50 (2003): 1–51; or idem, “ ‘Du sollst nichts hinzufügen und nichts wegnehmen’ (Dtn 13,1): Rechtsreform und Hermeneutik in der Hebräischen Bibel,” ZTK 102 (2006): 157–183. 56 Westbrook, Studies, 2 n. 6 (emphasis added). Similarly, idem, “Biblical and Cuneiform Legal Law Codes,” RB 92 (1985): 247– 64 (at 247– 48). 57 Westbrook, “Biblical and Cuneiform Law Codes,” 248 n. 3. In “What is the Covenant Code?,” however, the Priestly code is mentioned on p. 28. 58 Samuel Rolles Driver, A Critical and Exegetical Commentary on Deuteronomy (3d ed.; ICC; Edinburgh: T. &. T. Clark, 1902), iv–vii.

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editorial features of the biblical legal collections themselves. Such handy redefining of the corpus of biblical law constitutes de facto textual criticism without the accompanying controls. The price of imposing such a Procrustean theory is the excision of significant constituent parts of biblical law as functionally secondary. Moreover, the criterion for the redefinition, the attempt to create secular or civil “codes” out of the corpus of biblical law, itself imposes a foreign canon upon the Israelite material. This process of redefining the legal corpus thus contradicts the claim that synchronic interpretation is alone culturally appropriate while diachronic analysis is inappropriate. Ironically, such demarcations hinder Westbrook from carrying out his overall goals, as two examples from Deuteronomy show. On the one hand, the single example of legal development in the Bible that Westbrook does allow, the case of manumission law (Deut 15:12 revising Exod 21:2), now falls outside of the legal “code” of Deuteronomy!59 On the other hand, the demarcation excludes the prohibition against removing boundary markers (Deut 19:14). That provision would be important to Westbrook’s own larger project to demonstrate cross-cultural legal continuity because similar divinely-sanctioned prohibitions are common to cuneiform kudurru law, Israelite law, Egyptian wisdom, and Roman law.60 Although in this context I focus on the biblical legal corpora, the same question of de facto textual criticism arises with respect to the cuneiform legal collections. Westbrook’s analysis of “the codes” concentrates on the legal paragraphs to the exclusion of the religious and literary frame in which they are found, a frame which is composed in a hymnic-epic dialect different from the language of the laws. That redactional association of frame and legal corpus itself raises a further series of questions that militate against a synchronic reading. First, it is not clear whether the combination of law and frame is original or secondary, since each has been found without the other; either answer, however, requires the recognition of redactional activity in the construction of the legal corpus. Second, the frame itself presupposes the revision and updating of literary models drawn both from prior legal collections (the Laws of Ur-Namma) and from the royal edicts (Uru-inim-gina).61 Third, there is strong evidence, con-

59

Westbrook, “Covenant Code,” 35. See Bernard S. Jackson, “From Dharma to Law,” American Journal of Comparative Law 23 (1975): 490 –512 (at 507–508). 61 For analysis and bibliography see Jeffrey H. Tigay, “The Stylistic Criterion of Source Criticism in the Light of Ancient Near Eastern and Postbiblical Literature,” in Empirical Models for Biblical Criticism (ed. J. H. Tigay; Philadelphia: University of Pennsylvania, 1985), 150 –73 (at 159– 67). 60

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trolled by philology, for revision and interpolation within the legal paragraphs themselves.62 I have already suggested that the profound transformations within the history of Israelite religion, as reflected in the literary sources, provide ready contexts for observing textual reformulation. The religious calendar of ancient Israel offers one of the most striking examples of such ongoing development. The calendar’s expansion, historicization, and phenomenological transformation may be charted by comparing it in each of the literary strata; moreover, the calendar undergoes interpolation within the strata. For example, the authors of Deuteronomy radically transform the paschal slaughter, originally an apotropaic slaughter of sheep or goats in the doorway (Exod 12:21–23, JE), into all but a normative sacrifice of cattle or sheep at the centralized altar (Deut 16:1–8). Not only do they void the original blood ritual, they textually rework the older protocol as well, in effect fusing it with the quite dissimilar norms proper to Unleavened Bread as a pilgrimage festival.63 A pair of striking examples of the phenomenon of development, warranting detailed analysis, occurs within the festival calendar of the Holiness Code. The festivals are designated  , “the fixed times of Yahweh” (Lev 23:2, 4). Within such cultic calendars (see Exod 23:14 –17; Deut 16:1–17), the focus is on the annual occurrences whose date must indeed be “fixed”—thus, the root , “to set, designate.” Anomalous in such a context is the weekly celebration of the Sabbath, which does not mark a calendrical phenomenon and needs no fixing.64 Consequently, the 62 For important recent demonstrations see Westbrook and Wilcke, “Liability of an Innocent Purchaser,” 111–21; Tzvi Abusch, “ ‘He Should Continue to Bear the Penalty of That Case’: An Interpretation of Codex Hammurabi Paragraphs 3– 4,” in From Ancient Israel to Modern Judaism: Intellect in Quest of Understanding, Essays in Honor of Marvin Fox (ed. Jacob Neusner, Ernest S. Frerichs, and Nahum M. Sarna; BJS 159; 4 vols.; Atlanta: Scholars Press, 1989), 1:77– 96; Barry L. Eichler, “Literary Structure in the Laws of Eshnunna,” in Language, Literature, and History: Philological and Historical Studies Presented to Erica Reiner (ed. Francesca Rochberg-Halton; AOS 67; New Haven: American Oriental Society, 1987), 71– 84; Samuel Greengus, “Some Issues Relating to the Comparability of Laws and the Coherence of the Legal Tradition,” in Theory and Method in Biblical and Cuneiform Law: Revision, Interpolation and Development (ed. Bernard M. Levinson; JSOTSup 181; Sheffield: Sheffield Academic Press, 1994; repr., Sheffield: Sheffield Phoenix, 2006), 60 – 87; and Eckart Otto, “Aspects of Legal Reforms and Reformulations in Ancient Cuneiform and Israelite Law,” in Theory and Method in Biblical and Cuneiform Law: Revision, Interpolation and Development (ed. Bernard M. Levinson; JSOTSup 181; Sheffield: Sheffield Academic Press, 1994; repr., Sheffield: Sheffield Phoenix, 2006), 160 –196. 63 See Levinson, Deuteronomy and the Hermeneutics of Legal Innovation, 53– 97. 64 As observed by Baruch A. Levine, Leviticus (JPS Torah Commentary; Philadelphia: Jewish Publication Society, 1989), 156. In the context of a commentary series

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colophon of this calendar explicitly emphasizes that the foregoing unit lists the “fixed times of Yahweh . . . apart from the Sabbaths of Yahweh” (  ; Lev 23:37–38). Despite the colophon’s exclusion of the Sabbath, the Sabbath is nevertheless incongruously introduced into the unit, immediately following the superscription introducing the calendar of “fixed times” (Lev 23:3). The literary context for the inclusion of the Sabbath law warrants further examination. Immediately after that anomalous inclusion, a second superscription occurs, closely overlapping with the first (Lev 23:4, cf. v. 2). The contextually disruptive inclusion of the Sabbath law within the annual festival calendar, framed by the redundant repetition of the superscription and then explicitly asserted as extrinsic in the colophon, can most logically be explained as an interpolation. This interpolation marks an ex post facto tendency towards the programmatic incorporation of the Sabbath into the ritual calendar, even at the expense of the calendar’s original coherence and specificity.65 The editors responsible for the addition employ the conventional scribal technique of the repetitive resumption, framing the intrusive material (v. 3) with a repetition (v. 4) of the material preceding it (v. 2). The interpolation was added after the redaction of the original unit (Lev 23:1–2 + 5–38). Strikingly, the colophon in vv. 37–38 was never itself revised in light of the addition and consequently provides a valuable window into the unit’s redactional history.66 Whether the retention of the colophon intact, despite the interpolation, points to editorial conservatism, selective (in)attention, or non-concern with consistency given other priorities, I cannot say. Indeed, the issue, which arises in many contexts, merits a detailed examination. The results of the editorial activity, however, are undeniable. The attempt to make an originally specific calendar more systematic and comprehensive introduces contradiction into the legal corpus—and provides the textual evidence that gives rise to historical-critical scholarship. This example is not alone, even within this unit devoted to the calendar. The final festival it lists is Tabernacles, whose observance is to be marked by seven days of sacrifices, a work stoppage on the first day, and an eighth day involving assembly, work stoppage, and sacrifice (Lev 23:33–36). The colophon of the festival calendar follows immediately (Lev aimed at a broader public, Levine does not pursue the implications of his analysis explicitly to argue that there is an interpolation here. 65 For the most thorough analysis of the redactional issues involved see Israel Knohl, “The Priestly Torah Versus the Holiness School: Sabbath and Festivals,” HUCA 58 (1987): 72–76. See further Levinson, Deuteronomy and the Hermeneutics of Legal Innovation, 19–20. 66 On this approach, applying it to other texts, see Michael Fishbane, “On Colophons, Textual Criticism, and Legal Analogies,” CBQ 42 (1980): 438– 49.

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23:37–38). That the colophon formally closes the calendrical unit is clear from its similarity in formulation to the opening superscription (note that Lev 23:37a parallels 23:2ab and thus forms an inclusio with it). After such a concluding summary, it is thus anomalous to find both a second presentation of the regulations for the Feast of Tabernacles (Lev 23:39–43) and a second, if cursory, colophon (Lev 23:44). This unit redundantly repeats the date formula (Lev 23:39, parallel to v. 33) and adds provisions not mentioned in the preceding unit (celebration with various species of trees in Yahweh’s presence for the entire duration of the Festival; dwelling in tabernacles; and a historical justification for the observance). It is difficult not to see the unit as an ex post facto addition to the calendar, again technically marked by the repetitive resumption, which incorporates into the text either a more popular form of observance than the original priestly one, or a newer form, or a form celebrated in a different region of Israel than the other. Whatever the specific explanation, the calendar is composed of inconsistent literary strata and underwent expansion. Importantly, the argument for revision is confirmed by two interlocking criteria: the presence both of substantive anomalies (the intrusiveness of Sabbath rules in a festival calendar and the redundancy of the Tabernacles codicil) and of scribal devices associated with redactional activity. Once the power of diachronic analysis to explain the specifics of the text is recognized, instances of redactional activity, interpolation, and development may frequently be detected. This is not the context to produce a list.67 The key issue, it seems to me, is that Westbrook’s real concern is that certain streams of analysis have indeed produced skewed results for lack of controls or appropriate models. At the same time, it is simply unjustified to claim that an immanent approach to biblical and cuneiform law mandates synchronic analysis. Such a claim overlooks the extent to which synchronic analysis is itself an interpretive construction that strives to explain the evidence. Synchronic harmonizations belie the “empirical” evidence that is afforded by the text of redactional activity within it. All the major genres of cuneiform literature involve revision and interpolation.68 This is the literary and intellectual context within which Israelite legal literature should be construed.69 67 Fishbane’s demonstration of the exegetical activity that occurs both within individual legal corpora and between them provides an extensive array of examples (Biblical Interpretation, 91–277). 68 Jeffrey H. Tigay, ed. Empirical Models for Biblical Criticism (Philadelphia: University of Pennsylvania, 1985). 69 The same issues apply equally to biblical narrative texts where synchronic analysis is increasingly championed. Nevertheless, the “Bible as Literature” movement contradicts its own mandate, overlooking in its exclusive use of a synchronic method precisely the essential issues of authorship and creativity disclosed by means of dia-

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Conclusions When rabbinic exegesis confronted the three separate legal collections of the Covenant Code, Deuteronomy, and the Holiness Code, it had no choice but to construct a coherent system by means of harmonistic exegesis. That exegetical system entailed certain assumptions about the nature of the biblical text: that it is everywhere coherent and that it is free of redundancy. Of course, the facts of the redactional creation of the Pentateuch— the integration of three originally independent legal collections into a common narrative, the three equally asserted to be revelatory in origin— trigger such a response even as they ultimately belie it. Given that assumption of the meta-coherence of the system, rabbinic interpretation found techniques to overcome the problem of redundancy, whether in separate contexts (as with the triple prohibition of boiling a kid in its mother’s milk) or within a single, highly stratified text. For example, within Deuteronomy 12, the duplication of the concession allowing secular slaughter (vv. 15–16, 20 –23) is harmonized by ancient rabbinic exegesis as referring to two distinct cases: the first, to blemished sacrificial animals (see Deut 15:21–23); the second, to profane slaughter of unblemished animals.70 Similarly, the double prohibition of consuming the blood of animals (vv. 16, 23) equally is resolved through harmonistic exegesis: the first refers to the blood of slaughtered animals; the second, reading v. 23b literally (“You shall not eat the life with the flesh”), allegedly refers to the blood of flesh torn from a living body!71 Clearly these resolutions of a highly stratified text into a synchronically coherent one illuminate neither the plain meaning of the text nor its compositional history.72 The texts can be read that way but it is unlikely

chronic analysis. See Bernard M. Levinson, “ ‘The Right Chorale’: From the Poetics to the Hermeneutics of the Hebrew Bible,” in “Not in Heaven”: Coherence and Complexity in Biblical Narrative (ed. Jason P. Rosenblatt and Joseph Sitterson; Indiana Studies in Biblical Literature; Bloomington: Indiana University Press, 1991), 129–53; repr., ch. 1 infra. 70 Sipre Deuteronomy, pisqa 71 (ed. Finkelstein), 134 (see n. 39 above). 71 Sipre Deuteronomy, pisqa 76 (ed. Finkelstein), 141– 42. In these two cases, I have used examples raised by Moshe Weinfeld, review of Gerhard Langer, Von Gott erwählt— Jerusalem: Die Rezeption von Dtn 12 im frühen Judentum, Bib 72 (1991): 111–12. 72 Jon D. Levenson analyzes the issue pointedly: “By harmonizing inconcinnities, the tradition presents itself with a timeless document, one that appears to speak to the present only because the historical setting of the speaking voice or the writing hand has been suppressed, and all voices and all hands are absorbed into an eternal simultaneity.” See idem, “The Hebrew Bible, the Old Testament, and Historical Criticism,” in The Future of Biblical Studies (ed. Richard Elliott Friedman and H. G. M. Williamson; Atlanta: Scholars Press, 1987), 19–59 (at 21); repr., idem, The Hebrew Bible, the Old

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that they were written that way. Maintaining such a reading of enforced coherence entails specific hermeneutical moves, grounded less in the texts themselves than in hermeneutical need: the claim that the cases are different saves the coherence of the canon. What triggers such a reading is an external construct: the assumption, or the creation, of a meta-system of law whose origins are ultimately independent of the text yet which seek confirmation in it. Westbrook’s “common law,” subsuming individual texts to a larger system that assumes coherence, has all the attributes of an exegetically harmonized scriptural canon. Diachronic analysis of biblical law is truer to the compositional norms of both cuneiform and Israelite literature and accounts for the specifics of the text more coherently.

Testament, and Historical Criticism: Jews and Christians in Biblical Studies (Louisville: Westminster/John Knox, 1993), 1–32 (at 3).

10. Calum M. Carmichael’s Approach to the Laws of Deuteronomy In his first three books and in numerous articles, Calum M. Carmichael argues for a radical transformation in the way the laws of Deuteronomy are to be understood.1 His most recent work, Law and Narrative in the Bible maintains that the legal corpus of Deuteronomy, far from being “law,” rather constitutes “literature,” in which the Deuteronomistic historian reflects upon the full range of preexilic Israelite narrative, Genesis through 2 Kings. In the course of this argument, Carmichael makes fundamental assertions about the composition of Deuteronomy, the history of Israelite literature, and the history of interpretation. Carmichael introduces his work as an attempt “to overturn longstanding views on material that has always been in center stage in the study of the Bible” and as “radical in its results.”2 His work has generated a series of further studies of narrative allusion and drafting techniques in Deuteronomy that presuppose his arguments.3 1

The books include The Laws of Deuteronomy (Ithaca: Cornell University Press, 1974); Women, Law, and the Genesis Traditions (Edinburgh: Edinburgh University Press, 1979); and Law and Narrative in the Bible: The Evidence of the Deuteronomic Laws and the Decalogue (Ithaca: Cornell University Press, 1985). Only the first and the third of these, whose focus is the problem of legal order, will be discussed here. Relevant articles by Carmichael, which will not be directly discussed here, include “Deuteronomic Laws, Wisdom and Historical Traditions,” JSS 12 (1967): 198 –206; “A New View of the Origin of the Deuteronomic Credo,” VT 19 (1969): 273– 89; “A Singular Method of Codification of Law in the Mishpatim,” ZAW 84 (1972): 19–25; “A Time for War and a Time for Peace: The Influence of the Distinction Upon Some Legal and Literary Material,” JSS 25 (1974): 50 – 63; “On Separating Life and Death: An Explanation of Some Biblical Laws,” HTR 69 (1976): 1–7; “A Common Element in Five Supposedly Disparate Laws,” VT 29 (1979): 129– 42; “Forbidden Mixtures,” VT 32 (1982): 394– 415; “Uncovering a Major Source of Mosaic Law: The Evidence of Deut 21:15–22:5,” JBL 101 (1982): 505–20; and “Biblical Laws of Talion,” HAR 9 (1985): 107–26. His most recent book is idem, Illuminating Leviticus: A Study of Its Laws and Institutions in the Light of Biblical Narratives (Baltimore: Johns Hopkins University Press, 2006). See the discussion below (p. 255 n. 105). 2 Carmichael, Law and Narrative, 13. 3 John T. Noonan, “The Muzzled Ox,” JQR 70 (1980): 172–75; Gordon J. Wenham and J. Gordon McConville, “Drafting Techniques in Some Deuteronomic Laws,” VT 30

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Despite his fundamental rethinking of the nature of biblical law, Carmichael’s work has yet to receive a sustained analysis other than in brief comments, reviews, or surveys of the history of scholarship.4 For a number of reasons, however, a more comprehensive analysis is important. First, Carmichael claims to solve the problem of the structure and sequence of Deuteronomy 12–26. This problem, long a crux in historical-critical scholarship, has occasioned renewed interest, as evident in a number of studies—each quite different in approach—to which I shall refer below. If Carmichael’s arguments are correct, a significant scholarly stumbling block will have been removed. Second, Carmichael stresses the role of intertextual reference as central to the understanding of Deuteronomy 12– 26. This emphasis conforms to the increasing recognition among scholars of the important influence of the emergent Israelite canon upon subsequent authorship. Not only the view of the canon in the work of Brevard S. Childs and James A. Sanders, but also more recent work on inner-biblical exegesis presuppose a corpus of authoritative texts in ancient Israel that subsequent editors update, reapply, or even polemically challenge.5 Third, Carmichael’s emphasis on the literary and theoretical aspects of biblical law evokes several other approaches to the analysis of both cuneiform and (1980): 248 –52; Lyle Eslinger, “The Case of an Immodest Lady Wrestler in Deuteronomy XXV 11–12,” VT 31 (1981): 269– 81; and idem, “More Drafting Techniques in Deuteronomic Laws,” VT 34 (1984): 221–25. 4 Some thoughtful analyses of Carmichael’s first book include Stephen A. Kaufman, “The Structure of the Deuteronomic Law,” Maarav 1/2 (1978 –1979): 108; A. D. H. Mayes, Deuteronomy (NCB; London: Marshall, Morgan & Scott, 1979), 49–50; and Baruch Halpern, “The Centralization Formula in Deuteronomy,” VT 31 (1981): 20 –38, esp. 29–30. In addition, William Sproull Morrow provides a valuable critique of Carmichael’s two books (“The Composition of Deuteronomy 14:1–17:1” [Ph.D. diss., in 2 vols., University of Toronto, 1988], 4– 8, 434 –37). Unfortunately, this detailed analysis was not included in the thorough revision of his dissertation, which appeared as Scribing the Center: Organization and Redaction in Deuteronomy 14:1–17:13 (SBLMS 49; Atlanta: Scholars Press, 1995). 5 Renée Bloch, “Écriture et tradition dans le judaïsm, aperçus sur l’origine du Midrash,” Cahiers Sioniens 8 (1954): 9–34; Nahum M. Sarna, “Psalm 89: A Study in Inner Biblical Exegesis,” in Biblical and Other Studies (ed. Alexander Altmann; Brandeis University Studies and Texts 1; Cambridge: Harvard University Press, 1963), 29– 46 [repr., Sarna, Studies in Biblical Interpretation (JPS Scholar of Distinction Series; Philadelphia: Jewish Publication Society, 2000), 377– 94]; Brevard S. Childs, “Psalm Titles and Midrashic Exegesis,” JSS 16 (1971): 137–50; idem, “Midrash and the Old Testament,” in Understanding the Sacred Text: Essays in Honor of Morton J. Enslin (ed. John Reumann; Valley Forge, Pa.: Judson, 1972), 45–59; James A. Sanders, Torah and Canon (Philadelphia: Fortress, 1972) and the collection of his articles in idem, From Sacred Story to Sacred Text: Canon as Paradigm (Philadelphia: Fortress, 1987); and Michael Fishbane, Biblical Interpretation in Ancient Israel (2d ed.; Oxford: Clarendon, 1988).

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biblical legal collections, including their editing and organization.6 Fourth, his work notes the importance of pseudepigraphy as a technique of legal authorship in ancient Israel. This insight is highly productive for the analysis of both Israelite and postbiblical Jewish and sectarian legal history.7 My study will therefore provide a needed analysis of Carmichael’s methodology and his substantive claims. Before turning directly to Carmichael’s work, it is important to review some of the problems that the legal corpus of Deuteronomy raises as regards its sequence and structure and assess the range of scholarly attempts to resolve the difficulties of the legal corpus in order to establish the context of Carmichael’s approach. The analysis of Carmichael’s work will begin with his first book, The Laws of Deuteronomy. Both methodological and conceptual critiques of Carmichael’s arguments concerning the interpretation and coherence of the legal corpus in his later book, Law and Narrative, are also in order. This chapter aims to demonstrate that Carmichael’s arguments— although they are important for their emphasis on the meditative and intertextual aspects of the laws—can be sustained neither methodologically nor 6

David Daube, “The Civil Law of the Mishnah: The Arrangement of the Three Gates,” Tulane Law Review 18 (1943–1944): 351– 407; idem, Studies in Biblical Law (Cambridge: Cambridge University Press, 1947); idem, The Exodus Pattern in the Bible (London: Faber and Faber, 1963); Herbert Petschow, “Zur Systematik und Gesetzestechnik im Codex Hammurabi,” ZA 57 (1965): 146 – 72; idem, “Zur ‘Systematik’ in den Gesetzen von Eschnunna,” in Symbolae Iuridicae et Historicae Martino David Dedicatae, vol. 2: Iura Orientis Antiqui (ed. J. A. Ankum, R. Feenstra, and W. F. Leemans; 2 vols.; Leiden: E. J. Brill, 1968), 131– 43; Jacob J. Finkelstein, The Ox That Gored (Transactions of the American Philosophical Society 71:2; Philadelphia: American Philosophical Society, 1981); Moshe Greenberg, “The Design and Themes of Ezekiel’s Program of Restoration,” Int 38 (1984): 181–208; and Barry L. Eichler, “Literary Structure in the Laws of Eshnunna,” in Language, Literature, and History: Philological and Historical Studies Presented to Erica Reiner (ed. Francesca Rochberg-Halton; AOS 67; New Haven: American Oriental Society, 1987), 71– 84. 7 Morton Smith, “Pseudepigraphy in the Israelite Literary Tradition,” in Pseudepigrapha I: Pseudopythagorica, Lettres de Platon, Littérature pseudépigraphique juive (ed. Kurt von Fritz; Entretiens sur l’antiquité classique 18; Vandoeuvres, Geneva: Fondation Hardt, 1972), 191–215, with ensuing discussion, 216 –27; Gershom Scholem, “Revelation and Tradition as Religious Categories in Judaism,” in idem, The Messianic Idea in Judaism and Other Essays on Jewish Spirituality (New York: Schocken, 1971), 282–303; Yigael Yadin, The Temple Scroll (3 vols.; Jerusalem: Israel Exploration Society, 1977– 1983), 1:71; Geoffrey H. Hartman, “On the Jewish Imagination,” Prooftexts 5 (1985): 201–20, esp. 210; Fishbane, Biblical Interpretation in Ancient Israel, 257– 66, 530 –33; Martin S. Jaffee, “Mishnaic Literary History and the History of a Mishnaic Idea: On the Formation of the Mishnah’s Theory of Intention, with Special Reference to Tractate Maaserot,” AJS Review 11 (1986): 135–55; and idem, “The Pretext of Interpretation: Rabbinic Oral Torah and the Charisma of Revelation,” in God in Language (ed. Robert P. Scharlemann and Gilbert E. M. Ogutu; New York: Paragon House, 1987), 73– 89.

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conceptually. Carmichael’s substitution of neo-midrashic eisegesis for controlled textual criticism has serious consequences: (1) He leaves no logical point in Israelite literary history in which Deuteronomy could have been written, rendering the editing of the Deuteronomistic history impossible to understand. (2) He posits a type of authorship for which there is no precedent in the ancient Near East. (3) Because he argues that canonization marks the beginning of the misunderstanding of Deuteronomy, his thesis about the text’s esoteric true meaning cannot be substantiated except by his own assertions. Having begun with a critique of the positivism of the literary-critical method, his own theory provides few obvious methodological controls and little room for either verification or refutation. (4) Despite his legitimate emphasis on the importance of literary history to the understanding of Deuteronomy 12–26, Carmichael in fact isolates the legal corpus from both cuneiform and Israelite literary, legal, and intellectual history. In this limited context, the innovations of Deuteronomy consist not in its reformulation of Israelite cultic-legal tradition but rather, as Carmichael claims, in its esoterically coded allegorical allusions and in his decoding of those allusions.

The Problem of the Sequence and Structure of the Legal Corpus There has been a long-standing scholarly debate on whether the legal corpus of Deuteronomy 12–26 has a coherent arrangement. A number of specific factors contribute to the problematic structure and organization of the legal corpus. There are frequent repetitions in the legal corpus, both within chapters and across them. For example, the command for cultic centralization recurs four times in Deuteronomy 12, as if each command were independent of the others (vv. 5, 11, 14, 26). Such redundancies raise the question of whether they represent the redactional combination of separate literary strata or whether, instead, they may have a purely synchronic explanation, such as rhetorical emphasis. Equally difficult to discern is the reason why laws are repeated across chapters. With a series of three symmetrically structured laws in chapter 13, each of which concerns incitement to apostasy, why does a fourth such law occur in 17:2–7?8 One would expect it to be grouped with the others 8 See the analysis of D. Karl Budde, “Dtn 13 10, und was daran hängt,” ZAW 36 (1916): 187– 97. Budde attempts to correct the ostensible redundancy by relocating Deut 17:2–7 (as well as 16:21–17:1) after Deut 13:1. This widely followed solution only succeeds in transferring the problem of redundancy to a new context while also overlooking the function of Deut 17:2–7 in its own context. For a more detailed analysis, see

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rather than to be detached from them. Moreover, it is not immediately clear why this law is not altogether redundant, since it treats an ordinary citizen’s encouraging his or her neighbors to commit idolatry, which is also the case in 13:7–12 (ET 13:6–11). In addition to the issue of repetition, other characteristics of Deuteronomy raise the question of the text’s coherence. The structure of Deuteronomy 12, for example, is also problematic on account of the Numeruswechsel: the shift in the grammatical number of the second person addressee from primarily plural (vv. 1–12) to primarily singular (vv. 13– 31).9 Since the speaker of the text, Moses, does not shift audience, the grammatical alternation is disruptive and puzzling. Scholars remain in disagreement about whether the grammatical shift points to multiple literary strata underlying the present text.10 Beyond the two philological issues—the repetitions and the number change—the sequence and arrangement of legal paragraphs raise a third dimension of difficulty in understanding the organization of Deuteronomy. In other words, are the transitions between topics or sections ordered and meaningful, or are they merely random? If there is an order, does it represent a legal logic (such as the common practice of beginning a legal corpus with substantive law and concluding with adjectival law)?11 Bernard M. Levinson, Deuteronomy and the Hermeneutics of Legal Innovation (Oxford and New York: Oxford University Press, 1998), 118 –127. 9 Christopher T. Begg, “The Significance of the Numeruswechsel in Deuteronomy: The ‘Prehistory’ of the Question,” ETL 55 (1979): 116 –24, with review of the literature; and Yoshihide Suzuki, “The ‘Numeruswechsel’ in Deuteronomy” (Ph.D. diss., Claremont Graduate School, 1982). 10 The most systematic attempt to use the number variation to distinguish redactional strata remains that of Georges Minette de Tillesse, “Sections ‘tu’ et sections ‘vous’ dans le Deutéronome,” VT 12 (1962): 29– 87. There have been a number of challenges to this general diachronic methodology. Among them, Moshe Greenberg employs extrabiblical evidence to argue that neither grammatical number shift nor shifts in the form of reference to the textual speaker between first-person and third-person should be construed as pointing to separate literary strata (“Ezekiel’s Program of Restoration,” 186 – 88). That such phenomena exist in Aramaic treaties and in cuneiform texts does not, however, rule out the need to explain them. Although the shifts may indeed represent a compositional norm, they can equally provide clear evidence for the text’s constituting a redactional combination of separate sources. See the careful reconstruction by Hayim Tadmor, “The Historical Inscriptions of Adad-Nirari III,” Iraq 35 (1973): 141–50. For biblical law, the synchronic method of “total interpretation” allows Baruch J. Schwartz to argue that the number shift in Lev 19:11–18 reflects syntactical concerns rather than redactional stages (The Holiness Legislation: Studies in the Priestly Code [Jerusalem: Magnes 1999], 309–23 [Hebrew; English summary]). 11 Henry Sumner Maine, “Classification of Legal Rules,” ch. 11 in his Dissertations on Early Law and Custom (New York: Henry Holt, 1886; repr., New York: Arno, 1975), 362– 92.

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For example, to return to Deuteronomy 12, why does Deuteronomy’s legal corpus begin with altar law? Was there simply a convention whereby biblical legal collections began with altar law, as is the case with Leviticus 17, which introduces the Holiness Code (Leviticus 17–26)? The issue is complicated by the case of the Covenant Code which, properly speaking, should be defined as Exod 21:1–23:19, given the opening superscription, yet which has the altar law of Exod 20:24–26 redactionally set as a preface to it. Does that redactional introduction of the Covenant Code with altar law constitute the model that both Deuteronomy and the Holiness Code follow? Or rather does it indicate secondary patterning after them? Further questions concerned with the rationale of the sequence and arrangement of the legal corpus abound. For example, why does chapter 12 first command cultic purification (vv. 1–3), then require cultic centralization (vv. 4 –28), then return to cultic purification (vv. 29 –31)? What exactly is the topical link, if one exists, between the altar law of chapter 12 and the series of laws in chapter 13 that govern apostasy? Is there a logical transition from the former chapter to the latter or is there an illogical disjunction? Problems in the philology and arrangement of the legal corpus raise in turn the question of the composition of the text and of the appropriate methodology for its analysis. Is Deuteronomy’s order either in broad outlines clear yet disturbed by the interpolations of later editors, or the product instead of an associative mind not governed by the constraints of discursive thought and consistent grammar? Are ostensible topical disruptions to be resolved diachronically, by means of historical-critical analysis, or rather synchronically, as demonstrating the organizational principles of the text’s authors? If the latter is the case, then are the text’s philological problems to be explained as (1) text-critically immaterial, free variations in rhetoric; (2) deriving from the authors’ use of literary or oral sources; or (3) consistent with allegedly similar grammatical shifts in cuneiform treaty texts?

Theoretical Responses to the Problem of Order The history of scholarship has presented essentially three models for the analysis of the order of Deuteronomy. The first is to deny or fail to see any overall coherence in the organization of the legal corpus. This position is evident in the work of Adam C. Welch, Robert H. Pfeiffer, and, more recently, Ernest W. Nicholson.12 The second model understands Deuteron12 See the citations gathered by Kaufman, “Structure of the Deuteronomic Law,” 107. Note also the judgment by Ernest W. Nicholson: “This lack of order in Deuteron-

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omy to be largely the product of a single author whose organization of the laws is for the most part a logical reflection of cultic, institutional, and social priorities; the laws thereby derive their order from the external reality they legislate.13 A third broad strategy is to understand the text to derive either from a single edition of the corpus with later interpolations or from a succession of multiple editions.14 omy xii–xxvi has so far defied solution.” See his Deuteronomy and Tradition (Philadelphia: Fortress, 1967), 33. 13 See Samuel Rolles Driver, who makes five broad topical divisions of the laws, including “sacred observances,” “office-bearers of the theocracy,” “criminal law,” etc. (A Critical and Exegetical Commentary on Deuteronomy [3d ed.; ICC; Edinburgh: T. & T. Clark, 1902], 135–36). His divisions break down on a number of levels, however. The definition of individual topic units often disregards literary and form-critical criteria. Thus the claim that Deut 12:29–13:19 (ET 12:29–13:18) is a single unit concerned with repression of idolatry (Driver, Deuteronomy, 135) overlooks the apodictic Deut 13:1 that interrupts the series of otherwise casuistic paragraphs, Deut 12:29–31; 13:2– 6, 7–12, 13– 19 (ET 12:29–31; 13:1–5, 6 –11, 12–18). In addition, Driver concedes that several passages in the text lie outside of the unit in which they are expected (ibid., 135 nn.). Quite different in approach, although nonetheless related, is the article of Harold M. Wiener, “The Arrangement of Deuteronomy XII–XXVI,” JPOS 6 (1926): 185– 95; republished in idem, Posthumous Essays (ed. Herbert Loewe; London: Oxford University Press/Humphrey Milford, 1932), 26 – 36. Wiener makes the technique of “association of ideas” the key to the organization of the text. Accordingly, the legal draftsman addresses the needs of the moment, but one idea triggers another. The transitions thereby are conceptual rather than lexical. Wiener, similar to Driver, understands the corpus to be the product of a single author and to be well organized. Although Wiener essentially rejects historical criticism, he acknowledges that certain passages (Deut 17:2–7) do not conform to the overall analysis and must be relocated. 14 Single-edition analyses of the corpus include the following: Gustav Hölscher, “Komposition und Ursprung des Deuteronomiums,” ZAW 40 (1922): 161–255, esp. 215– 17; and Mayes, Deuteronomy, 52–53. Moshe Weinfeld concedes the existence of multiple strata but maintains their differentiation cannot be methodologically controlled and thus adopts a single-edition hypothesis (Deuteronomy and the Deuteronomic School [Oxford: Clarendon, 1972; repr., Winona Lake, Ind.: Eisenbrauns, 1992], 6 – 7). On Weinfeld’s failure to distinguish strata within the legal corpus, note the important critique by Alexander Rofé, review of M. Weinfeld, Deuteronomy and the Deuteronomic School, Christian News from Israel 24 (1974): 204– 9 (at 206); repr. in idem, Deuteronomy: Issues and Interpretation (OTS; London and New York: T. & T. Clark, 2002), 221– 30 (at 225). Multiple-edition analyses include Rosario Pius Merendino, Das Deuteronomische Gesetz: Eine literarkritische, gattungs- und überlieferungsgeschichtliche Untersuchung zu Dt 12–26 (BBB 31; Bonn: Hanstein, 1969), 389–99; Gottfried Seitz, Redaktionsgeschichtliche Studien zum Deuteronomium (BWANT 93; Stuttgart: Kohlhammer, 1971), 303–8; Alexander Rofé, “The Strata of the Law about the Centralization of Worship in Deuteronomy and the History of the Deuteronomic Movement,” in Congress Volume, Uppsala 1971 (ed. G. W. Anderson et al.; VTSup 22; Leiden: E. J. Brill, 1972), 221–26; repr., idem, Deuteronomy: Issues and Interpretation (OTS; London and New York:

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Of interest here are three comprehensive attempts to account for the order of the laws in Deuteronomy.15 The first two—the work both of Carmichael and of Stephen A. Kaufman—are markedly contrasted in methodology, understanding of the nature of the legal corpus, and conclusions.16 Nonetheless they share two fundamental positions: (1) the legal corpus has a single, pseudepigraphic author who (2) arranges the order of the corpus under the direct literary influence of other prestigious Israelite texts. For Kaufman (and, building on and revising his hypothesis, Georg Braulik) it is the sequence of the laws of the Decalogue that accounts for the sequence of broad groupings of the Deuteronomic laws.17 Within the broad groups, the order reflects other organizational principles known from cuneiform legal corpora, as isolated by Herbert Petschow. In contrast, taking Carmichael’s two most relevant books together, Carmichael would understand the legal corpus to constitute a series of coded allusions to virtually the entire narrative of the Pentateuch and Former Prophets, from Genesis through 2 Kings, as well as to the Covenant Code. The third attempt to account for the sequence of the legal corpus employs a principle used by Umberto Cassuto to account for the problematic

T. & T. Clark, 2002), 97–101; and idem, Introduction to Deuteronomy: Part I and Further Chapters (Jerusalem: Akademon, 1988), 66–71 (Hebrew). 15 Two additional studies should be noted. The original Th.D. dissertation by Clemens Locher, which has proved impossible to obtain in the United States, includes a section on the legal systematics of Deuteronomy, with chs. 21–22 as its focus (Philosophisch-Theologische Hochschule Sankt Georgen, Frankfurt, 1984). Locher notes that that section was not included in the published version: idem, Die Ehre einer Frau in Israel: Exegetische und rechtsvergleichende Studien zu Deuteronomium 22, 13–21 (OBO 70; Fribourg: Universitätsverlag; Göttingen: Vandenhoeck & Ruprecht, 1986), viii, 4. Morrow’s dissertation, written under Paul E. Dion, adapts Wolfgang Richter’s methodology to a detailed analysis of Deut 14:1–17:1, and within that corpus deals insightfully with issues of textual structure (“Composition of Deuteronomy” [see n. 4 above]). 16 Kaufman, “The Structure of the Deuteronomic Laws.” Earlier, A. E. Guilding attempted to argue that Exod 20:23–23:17, Deut 12–25, and Lev 10 –23, were each patterned after the Decalogue in their sequence (“Notes on the Hebrew Law Codes,” JTS 49 [1948]: 43–52). The difficulties in his argument—the arbitrary definition of the scope of the corpora in question—are already evident in the article’s title. 17 Georg Braulik, “Die Abfolge der Gesetze in Deuteronomium 12–26 und der Dekalog,” in Das Deuteronomium: Entstehung, Gestalt und Botschaft (ed. Norbert Lohfink; BETL 68; Louvain: University Press, 1985), 252–72; supplemented by his “Zur Abfolge der Gesetze in Deuteronomium 16, 18 –21, 23. Weitere Beobachtungen,” Bib 69 (1988): 63– 92. These studies have now been revised and expanded in idem, Die deuteronomischen Gesetze und der Dekalog: Studien zum Aufbau von Deuteronomium 12–26 (SBS 145; Stuttgart: Katholisches Bibelwerk, 1991). Whereas Kaufman views the legal corpus in synchronic terms, Braulik recognizes its compositional history.

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arrangement of a number of other biblical books.18 Alexander Rofé argues that the order of the laws derives from “the association of words”; he thus presupposes a primarily mnemonic model of textual organization.19 For Cassuto the principle of association could be either compositional or redactional in origin; for Rofé, however, in the case of Deuteronomy, it is solely redactional. As part of a larger interpretation of the problematic structure and sequence of the legal corpus of Deuteronomy,20 this chapter is devoted to a thorough analysis of the work of Carmichael. The issue that Carmichael raises—whether intertextual reference is the key to the sequence and structure of the legal corpus—is in principle highly productive. What must be addressed, however, is whether Carmichael’s particular implementation of the idea is cogent.

Carmichael’s Argument in The Laws of Deuteronomy In The Laws of Deuteronomy, Carmichael argues that the legal corpus of Deuteronomy derives from wisdom schools. The author of the laws, a wisdom teacher pseudepigraphically employing the voice of Moses, reviews the entire range of already existing Israelite literature. On this basis, Carmichael divides the legal corpus into eight sections: 12:1–16:17; 16:18–19:21; 20; 21:1–22:5; 22:6 –23:9; 23:10–26; 24; 25:1–26:11. Carmichael claims that the wisdom teacher reiterates in each section the opening laws of the Deuteronomic legal corpus while also alluding to the earlier narrative of Deuteronomy, the laws of the Covenant Code, and the narrative of the Tetrateuch. Central to Carmichael’s thesis is the notion that Deut 12:1–28 constitutes an introductory unit that is subsequently repeated throughout the 18

Umberto Cassuto, “The Sequence and Arrangement of the Biblical Sections,” in idem, Biblical and Oriental Studies (trans. Israel Abrahams; 2 vols.; Jerusalem: Magnes, 1973), 1:1– 6. 19 Alexander Rofé, “The Order of the Laws in the Book of Deuteronomy,” in Jews in Italy: Studies Dedicated to the Memory of U. Cassuto on the 100th Anniversary of His Birth (ed. Haim Beinart; Jerusalem: Magnes, 1988), 217–35 (Hebrew); ET, “The Arrangement of the Laws in Deuteronomy,” in idem, Deuteronomy: Issues and Interpretation (OTS; London and New York: T. & T. Clark, 2002), 55–77. 20 See Bernard M. Levinson, The Hermeneutics of Innovation: The Impact of Centralization upon the Structure, Sequence, and Reformulation of Legal Material in Deuteronomy (Ann Arbor: University Microfilms International, 1991), 1–77. In that context, I also analyze the other approaches mentioned here. The more extended analysis was not included in the thorough revision of my dissertation, which appeared as Deuteronomy and the Hermeneutics of Legal Innovation (see n. 8 above).

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legal corpus, while also being elaborated and explicated in various ways.21 Both Deut 12:29 –16:17 and the second section of the legal corpus (16:18 – 19:21), he maintains, should be understood as restatements of this introductory unit. A number of acute philological problems emerge immediately. First, it is far from clear that Deut 12:1–28 constitutes a unit; I have already noted the many philological problems that Deuteronomy 12 presents. To make his argument, Carmichael must discount the evidence for separate literary strata within Deut 12:1–28. As a result, he discounts the evidence of the problematic repetitions of the chapter as well as of the Numeruswechsel. In fact, Carmichael rejects altogether the validity of diachronic analysis in the resolution of the repetitions of Deuteronomy 12.22 He thus adopts a synchronic approach whereby the repetitions represent homiletic emphasis: namely, they derive from a wisdom teacher instructing his students and are to be construed as part of the overall hortatory teaching of Deuteronomy. The shift in the grammatical number of the addressee is similarly explained in synchronic rather than diachronic terms. Such number shifts reflect the grammatical number of the passage to which the legal draftsman allegedly alludes.23 Although neither solution is in itself impossible, Carmichael’s formulation of the problem is a definition of convenience. He separates the discussion of the problem of repetition24 from that of the grammatical number of the addressee.25 He thereby disregards the fact that the two phenomena correlate to provide mutually reinforcing evidence for the existence of separate literary strata within chapter 12—two paragraphs primarily in the singular (vv. 1–7, 8–12), two in the plural (vv. 13–19, 20– 28), each with its own centralization formula (vv. 5, 11, 14, 26). As a result, his analysis tendentiously serves his overall agenda of arguing for unity of authorship. He fails to account for the specific problem of why there should be broad consistency of grammatical number within a repeated paragraph but inconsistency between such paragraphs. Thus Carmichael fundamentally transforms the problematic nature of the Deuteronomic text. He effectively restricts the critical problems concerning the laws to one: their topical sequence.26 If repetition never 21

Carmichael, Laws of Deuteronomy, 69–70, 94, 95. Ibid., 36 – 37. 23 When the Deuteronomist alludes to the JE traditions, he employs the singular (ibid., 30 and note). In itself this suggestion raises interesting possibilities. An analogous solution to the problem is suggested by Kaufman, “Structure of the Deuteronomic Law,” 153 n. 162. 24 Carmichael, Laws of Deuteronomy, 36 – 37. 25 Ibid., 30. 26 Ibid., 67. 22

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involves redundancy but only rhetorical emphasis, and if grammatical inconsistency arises only because of the impact of a literary source and does not designate different compositional strata, and if the two problems are never brought into relation, then the text is intrinsically different from the one that critical scholars confront. It becomes easier to organize because it is now the work of a single author. The sole problem remaining for the critic is how a single author organizes this noncomposite text. Carmichael’s thesis that laws repeat, moreover, rapidly becomes a presupposition. In a clear example of a petitio principii, the very idea that is to be proven becomes instead self-justifying and predictive: “A general exhortation to keep all the commandments constitutes the formal opening of the D code (xii. 1), and, because D systematically repeats previously presented material, a similar exhortation is given in xii. 28.”27 The logic is circular: the thesis (a synchronic explanation for textual repetition) is assumed, not demonstrated. Carmichael’s emphasis on synchronic analysis, however, does provide valuable insights. He is sensitive to stylistic features of Deuteronomy that have frequently escaped European and North American scholars.28 In particular he notes structural symmetries in the formulation of legal paragraphs, such that initial prohibitions are balanced with subsequent positive commands (25:13–16) or vice versa (22:6 – 7). This rhetorical shift within the laws from negative to positive formulation was analyzed long ago by Amoraic halakic hermeneutics.29 Carmichael uses the stylistic observation to argue against construing such repetitions as editorial interpolations. Such a conclusion does not necessarily follow, however, unless reinforced by philological analysis. His concluding chapter contains additional important insights. Carmichael stresses the character of Deuteronomy as a pseudepigraph that archaizes itself,30 argues that Deuteronomy does not have an oral Sitz im Leben (“setting in life”) but rather constitutes a work of learning,31 and maintains that the impact of inner-biblical “written traditions” takes prior-

27

Ibid., 72 (emphasis added). Ibid., 47–51. 29 The said Talmudic principle is called    , approximately, “a prohibition followed by an imperative.” On this stylistic feature, see Nahum Rakover, A Bibliography of Jewish Law (Jerusalem: Harry Fischel Institute for Research in Jewish Law, 1975), 290 – 91 (Hebrew). Arie Toeg recognizes this feature in the altar law of Exod 20:23–24; see his Law-Giving at Sinai (Jerusalem: Magnes, 1977), 84 (Hebrew; English summary). 30 Carmichael, Laws of Deuteronomy, 256. 31 Ibid., 258. Weinfeld had already emphasized this point (Deuteronomy and the Deuteronomic School). 28

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ity over tracing links with cuneiform material.32 In his next book devoted to the problem, Carmichael considerably expands the role he understands such inner-biblical textual references to play within Deuteronomy 12–26.

The Argument of Law and Narrative in the Bible Carmichael’s first book argues that the legal corpus of Deuteronomy should be understood as the work of a wisdom speaker who didactically restates (1) the first group of laws in the legal corpus, (2) the laws of the Covenant Code, and (3) the narratives both of Deuteronomy and (4) the rest of the Tetrateuch. Law and Narrative in the Bible argues that the same legal corpus is a product of the Deuteronomistic historian—whom Carmichael calls the Deuteronomist—who uses the legal corpus to reflect upon essentially the full range of Israelite prose in both the Pentateuch and the Former Prophets, from Genesis through 2 Kings, the entirety apparently already redacted in its present form and structure. An initial problem is that Carmichael nowhere makes clear the relation of the second book to the first. Since the two books are largely divergent in their understanding of the system of textual allusions of the legal corpus, it is unclear whether in the second book Carmichael implicitly withdraws his argument in the first; whether the second supplements the first; or whether both analyses somehow apply simultaneously.33 Carmichael’s specific thesis in the second book is that the laws of Deuteronomy constitute “judgments upon events in literary history, not in real history.”34 Each law specifically addresses a problem to be found in the Tetrateuch or in the Former Prophets.35 The laws therefore neither address actual problems in life, nor govern life, but address situations in Israel’s literature. Carmichael is not explicit as to whether narrative sections of the priestly source constituted part of the Tetrateuch; he does represent the Holiness Code as post-Deuteronomic.36 Carmichael argues that the author of Deuteronomy is “the Deuteronomist” who pseudepigraphically attributes the laws to Moses.37 This author is also responsible for the Decalogue, which similarly constitutes literary 32 Carmichael, Laws of Deuteronomy, 259. On Deuteronomy’s not having a Sitz im Leben, see Weinfeld, Deuteronomy and the Deuteronomic School, 8– 9, 51–58. 33 Morrow raises the first alternative (“Composition of Deuteronomy,” 5). Carmichael implies in a few instances that the references in the second book simply supplement those adduced by the first (Law and Narrative, notes on pp. 80, 100, 236, 302, 305, 309). 34 Ibid., 17. 35 Ibid. 36 Ibid., 203. 37 Ibid., 16.

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reflections on “historical records.”38 Such allusions are coded, Carmichael maintains, through striking vocabulary or syntax or commonality of theme. Carmichael views the laws as allegories of the historiographies rather than as texts that lie in a legal-literary tradition. The actual meaning of the laws, Carmichael maintains, has nothing to do with their ostensible denotation. Both wording and changes in legal topos are instead clues by which the literati, properly familiar with Israelite literary tradition, will know how to recover the narrative allusion intended by the legal draftsman. Carmichael’s interpretations seem to consider the actual legal content and teaching dispensable once the narrative meaning is recovered. Thus Carmichael writes a type of neo-midrash haggadah. He breaks down the literal meaning of a text in order to assert that its primary signification is allegorical. The text is thereby transformed essentially into an esoteric code. Even the exegetical techniques that Carmichael employs correspond to many of the conventional methods of rabbinic eisegesis, although they are not presented as such. For example, Carmichael employs single words or phrases, either putatively otiose, uncommon, or otherwise anomalous, to establish analogies based on linguistic similarities—thus comparable to the rabbinic gezerah shavah39—between a statute in Deuteronomy and the narrative text to which he argues it alludes. This analysis of Carmichael’s arguments and methodology addresses the following issues: (1) Carmichael’s reconstruction of the history of Israelite literature such that Deuteronomy is written by the Deuteronomist; (2) his redefinition of the problem of legal order as narrative allusion; (3) his assertions of lexical redundancies in the biblical text; (4) his use of a neo-midrashic “creative philology”; (5) his philological imprecision; (6) his omissions of both relevant textual information and apposite secondary literature; (7) his rejection of literary criticism as hypothetical and positivistic; (8) his overdetermination of intertextual allusions. Its conclusion focuses on the conceptual implications of Carmichael’s methodology, that is, his hermeneutics of Deuteronomy 12–26. 1. Carmichael’s Reconstruction of the History of Israelite Literature Carmichael’s claims concerning Deuteronomy involve important assertions concerning the history of Israelite literature. He argues that the legal corpus of Deuteronomy 12–26 derives from the studied hand of the author of the historiographic work of Joshua through 2 Kings, to whom Carmichael refers as “the Deuteronomist.” The legal corpus thus becomes construed as the historian’s coded meditation on the narratives. With this argument 38 39

Ibid., 17. For an explanation of this term, see “Creative Philology,” pp. 241–43 below.

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Carmichael reverses Martin Noth’s classic hypothesis concerning the Deuteronomistic redaction of the Former Prophets, asserting that “there is no warrant for [it].”40 It follows that Carmichael also reverses the terminological convention and speaks of “the Deuteronomic redaction” of Judges 16, 17, 18 or of the “Deuteronomist” in Deut 18:9 –22 as alluding to 1 Kings 17.41 Carmichael’s strong rejection of Noth’s thesis—“there is no warrant”—provides no evidence except his own contrary assertion. Carmichael’s rhetoric presents his undefended assertions as empirically grounded yet without providing an attendant review of the literature or textual support. His reversal of conventional literary history—such that the Deuteronomist precedes Deuteronomy and indeed composes it— constitutes a circular argument that serves only to corroborate his larger claim, namely, that Deuteronomy alludes to the narratives of Joshua through 2 Kings. More seriously, Carmichael’s hypothesis makes the redaction of those narratives impossible to understand. The editor’s condemnation of Jeroboam’s cultic practices, for example, anachronistically presupposes Deuteronomy’s law of centralization as well as specifically Deuteronomic terminology. If the centralization law (the basis of those contextually disruptive condemnations) is rather a literary reaction to those narratives, then the various Deuteronomistic interpolations in Kings become incoherent. Carmichael’s theory requires redaction ex nihilo, as if the Deuteronomist does the revision and then composes the legal corpus, Deuteronomy, that makes the revision intelligible. Moreover, Carmichael’s hypothesis makes it impossible to reconstruct the history of Israelite literature. Carmichael seems to hold that the book discovered in Josiah’s temple was Deuteronomy.42 Since Carmichael holds the Deuteronomistic historiographer responsible for Deuteronomy’s composition, it is unclear how Deuteronomy could exist prior to the narrative of its discovery while yet being composed subsequent to that narrative. Carmichael’s reconstruction of the history of Israelite literature raises further questions. Jer 4:23–26 is “understood to be earlier than Deuteronomy,” the passive voice obscuring the extent to which such a dating departs from the consensus.43 As a result, Deuteronomy is alternately preJosianic or Josianic or post-Josianic,44 is discovered in Josiah’s temple and 40

Ibid., 49, opposing Martin Noth, Überlieferungsgeschichtliche Studien: Die sammelnden und bearbeitenden Geschichtswerke im Alten Testament (2d ed.; Tübingen: M. Niemeyer, 1957); ET: The Deuteronomistic History (JSOTSup 15; Sheffield: JSOT, 1981). 41 Carmichael, Law and Narrative, 31, 110. 42 Ibid., 23. 43 Ibid., 337 n. 26. 44 Ibid., 23 (pre-Josianic), 26 (Josianic or post-Josianic).

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inspires the cultic reform, yet is composed later than both the Deuteronomistic history and Jeremiah. These mutually exclusive premises leave no logical point when Deuteronomy could have been composed. Nor is there any time—either within Israelite literary history or the postbiblical history of interpretation—when Deuteronomy was ever understood. Deuteronomy was only correctly understood in closed scribal schools, by initiates alone. It ceased being understood immediately when it became a public text. In some original setting, a scribal school or some analogue, the task was undertaken of evaluating existing records about the nation’s past from the perspective of some ideal understood to be Mosaic. In this setting the process of lawmaking that has been described above occurred, and the first recipients of the laws were indeed taken through the various traditions that have been used in their construction. At this stage, because it was fundamental to the exercise, the laws were cast as if they had come from Moses. The distinction between the two types of audience corresponds to the alleged historical one in the biblical record (2 Kings 22, 23): a law book had its origin somewhere before turning up in the temple, after which it took on a new life.45

If Deuteronomy’s publication marks the onset of its “new life” as a law book rather than as scribal interpretive collation of traditions about Israel’s literary heritage, then Carmichael’s book, concerned to uncover the UrDeuteronomy, effectively restricts itself to the pre-Josianic (but postDeuteronomistic!) true meaning of Deuteronomy. As such, the nature of the evidence must clearly be circumstantial and indirect, promulgation marking Deuteronomy’s fall from esoteric truth to exoteric incomprehension. Carmichael finds evidence for the incomprehension of Deuteronomy in inner-biblical literary history. The priestly writer who took over some of the laws of Deuteronomy (Lev 19:19, reformulating Deut 22:9–11, the law of prohibited mixtures) was the first to misconstrue Deuteronomy’s legal paragraphs as actually legal rather than as alluding to narrative, an incorrect reading that became “the standard way of evaluating them throughout Jewish legal history.”46 The history of Deuteronomy’s incomprehension extends from its inner-biblical reception through both Jewish and Christian traditional commentary to include as well the entire history of critical scholarship. Thus for Carmichael the history of interpretation becomes the history of exegetical error. In effect, there is no point whatsoever in the history of either innerbiblical or postbiblical exegesis that Deuteronomy has ever been under45

Ibid., 23. Ibid., 203– 4. In his more recent work, Carmichael appears to have reversed his position on the composition of Leviticus, although without bringing the two positions into connection. See the fuller discussion below (p. 255 n. 105). 46

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stood correctly—prior to Carmichael.47 Consequently, Carmichael’s restoration of Deuteronomy’s true meaning deals with the oral prehistory of Deuteronomy prior to its reception by any subsequent author or exegete, a reception marking misreading. By definition, therefore, literary evidence neither does nor can exist for Carmichael’s argument. As such, the argument itself becomes intrinsically unverifiable and irrefutable on its own terms. 2. The Problem of Legal Order Redefined as Narrative Allusion Carmichael solves the problem of the sequence of the Deuteronomic laws by arguing that in fact they are not laws at all. He argues that the laws constitute literary reflections upon the literary corpus of Genesis through 2 Kings. In effect, Carmichael therefore concedes the disorder of the laws: as they stand their order is unintelligible. His solution transfers the problem from the order of the laws to the order of the narratives to which they allude. Legal order becomes effectively redefined as allegorical narrative order. It is a separate question whether the narrative order he discovers is not itself an arbitrary, ad hoc shift from topos to topos. Indeed, Carmichael concedes, concerning the draftsman of the text: “Why he chooses the topics he does cannot be answered.”48 As a result, Carmichael’s exposition of textual order is neither predictive nor systematic. Not only does it lack any possibility of independent corroboration, it actually fails to explain the composition of the text. It is hard not to understand his analysis as an exegesis of despair. The structure, coherence, and significance of the legal corpus are all external to it; save for its alleged, extrinsic references, Deuteronomy 12–26 has no meaning. 3. The Assertion of Lexical Redundancy Carmichael regularly argues that specific words or phrases in the laws are, legally speaking, otiose and only become intelligible when understood as pointing to a narrative text. Such ostensible redundancies, Carmichael argues, constitute code words embedded in the legal corpus to alert the reader that the text’s real concern is not legal thought but narrative allusion. Carmichael argues, for example, that the protasis of Deut 21:22 is redundant in its formulation. At issue is the emphasized phrase within the verse, #      $ $     , which Carmichael translates, “And if a man have committed a sin worthy of death,

47 48

Ibid., 19. Ibid., 21.

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and he be put to death, and thou hang him on a tree.”49 Carmichael begins with an assertion that the italicized phrase is redundant in a legal context: In a legal code a statement such as, “And if a man be put to death, and thou [then] hang him on a tree,” should be sufficient, it being understood that the authorities will not put a man to death unless he has committed a capital offense.50

The point of such an analysis is to transform the legal corpus into an esoteric code. Carmichael asserts that the phrase in question is only intelligible as an allusion to the unjust hanging of Saul’s sons in 2 Samuel 21 and to the execution of the king of Ai in Josh 8:29. The allegedly otiose phrase distinguishes the case in Deuteronomy from that in 2 Samuel 21, where “it should not have applied to the sons of Saul.”51 Carmichael’s claim of redundancy fails to recognize that there is no unambiguous way to translate his ideal text—“if a man be put to death”— into classical Hebrew. The most obvious retroversion would result in     , employing the hopal imperfect of  (“to die”). Such a formulation would introduce an intrinsic semantic ambiguity, however. The hopal verb has two strikingly different possible denotations: either (1) “If a man be murdered”—illegally, as in 2 Kgs 11:2—or (2) “If a man be put to death”—legally executed, as in Exod 21:29.52 Far from being an otiose phrase that functions as a clue to the text’s true meaning, its narrative allusion, the phrase instead establishes the legal basis for the execution in question. Carmichael’s argument fails to take into account the stylistic features of the unit in which this law is embedded. There is a common protasis structure for each of the laws in 21:15–23:  (“if ”) + imperfect of  + preposition bound to  (“man”) (vv. 15, 18, 22). The allegedly otiose phrase, therefore, ties the law to its context and explains the redactor’s formal basis for grouping laws with nearly identical protases. The legal idiom in question conforms precisely to formal legal terminology found in other Deuteronomistic literature. The narrative of Jer 26:16, for example, employs the identical phrase, in the negative, to safeguard Jeremiah from prosecution for treason:  $    % (“This man does not deserve the death sentence”). The assertion of redundancy by Carmichael therefore is predicated upon a disregard of (1) classical Hebrew lexicography, (2) the stylistic features of the unit in which a given formulation is found, and (3) the controls provided by an analysis of other texts in which the formula clearly functions in a legal 49

Ibid., 153 (emphasis added). Ibid., 153–54. 51 Ibid., 154. 52 Note BDB, 560, s.v. 50

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context. In other words, the assertion of redundancy is uncontrolled but for the textually unjustified claim: “a statement . . . should be sufficient.” Given Carmichael’s stress precisely on the literary character of the laws and their intertextual reference, it is unexpected that Carmichael’s actual exegesis should rather disregard both the literary context of a given unit and other key texts in which similar idioms occur. 4. Creative Philology Carmichael frequently presents as the actual significance of a legal passage an interpretation that does not derive from independently verifiable critical philology. The mere occurrence of a particular word in two different contexts is sufficient for Carmichael to argue intentional allusion on the part of the legal draftsman, without a consideration of context, genre, or word field. Moreover, occurrences of the same word in contexts that would provide a control to a word or phrase’s semantic range are often unmentioned by Carmichael, as demonstrated above. Strikingly, the basis for his contention of intertextual allusion need not even be lexical. Frequently merely a formal issue, such as a grammatical number change or a positively formulated precept, provides sufficient grounds for Carmichael to claim what is in effect a gezerah shavah (the ancient rabbinic principle of exegetical analogy based upon shared vocabulary), although neither the term nor the concept is used by him.53 As such, many of his readings replace exegesis with eisegesis. They proceed from a neo-midrashic “creative philology” presented as if it were objective.54

53 On the gezerah shavah, see Saul J. Lieberman, Hellenism in Jewish Palestine (2d ed.; New York: Jewish Theological Seminary, 1962), 58– 62; and Menahem Elon, Jewish Law: History, Sources, Principles (4 vols.; Philadelphia: Jewish Publication Society, 1994), 1:351–55). For a convenient discussion, see Moses Mielziner, Introduction to the Talmud (Cincinnati: Bloch, 1894; 5th ed., New York: Bloch, 1968), 142–52. Mielziner notes an issue pertinent to the issue at hand: already in the Amoraic period there emerged strictures against the uncontrolled use of this exegetical rule. Such strictures were intended to prevent its use “in cases where the two laws or passages, compared with each other, have nothing in common except a single, often very insignificant word which has not the least natural bearing on the conclusion drawn therefrom” (147– 48). 54 The term “creative philology” derives from Joseph [Yizhak or Isaac] Heinemann, who defines it as the technique of “linking verses unrelated to one another on the basis of a similarity in their wording” (Darkhe ha-Aggadah [The Methods of the Aggadah] [3d ed.; Jerusalem: Magnes, 1970], 108 [Hebrew; my translation]). Heinemann demonstrates that the technique works to devalue the literal meaning of a passage and to assert instead multiple levels of allegorical meaning (129–30). The author brought his vast training in Greco-Roman literature to bear on the rhetorical techniques of rabbinic midrash; publishing a translation of this seminal work remains a desideratum.

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For example, Carmichael argues that the law forbidding the  , “sacred post” (Deut 16:21) is based upon, among other texts, the altar law of Exod 20:24.55 The sole philological evidence he cites is the English phrase, “thou shalt make,” common to both, a single word in Hebrew, plus the mention in each of “altar.” His evidence is restricted to a single word’s being shared between the two texts, tantamount to arguing on the basis of a neo-gezerah shavah. Carmichael thereby fails to distinguish specific allusion from a common word field necessary for any discussion of sacrificial protocol. Similarly, the philological argument for the narrative allusion claimed for a law is a single word that occurs in both the law and a given narrative. Carmichael maintains that the priestly admonition before battle, Deut 20:1–9, alludes to events in the narratives of Ahab (1 Kgs 22:20–22), Saul (1 Sam 18:20–27), and Gideon (Judg 7:2, 3). The occurrence of  (“to consecrate”) in Deut 20:5, Carmichael asserts, points to its mention in Solomon’s temple dedication speech (1 Kgs 8:63) and thereby to the succession struggle, which brings both Ahab and Saul to mind. Ahab is further brought to mind because of the verbal root  (“to profane”) in Deut 20:6, which is reflected in Naboth’s answer to Ahab, : “literally, ‘To profaneness!’ ” (1 Kgs 21:3)56 Individual words are discussed out of context. Moreover, in the last instance the bare lexical root, independent of morphology, verbal conjugation, and meaning, is the sole driving force for the assertion of intertextual allusion by means of the neo-gezerah shavah. Continuing the preceding analysis, Carmichael provides a novel explanation of the important problem of the Numeruswechsel. He maintains that in Deut 20:1– 9, which alludes to 1 Kgs 22:20 –22, among other texts, the number shift in v. 4 provides evidence of his thesis. The plural pronominal addressee indicates Deuteronomy’s reflection on the plural sections of the narrative prologue, Deut 1:19 –46 and 3:18–22, as well as Numbers 32. The singular addressee points to 1 Kings 20, where a prophet addresses Ahab in the singular.57 As such, mere number change constitutes the basis for a claim of intertextual allusion through a gezerah shavah to another passage with similar grammatical number. There are further examples of this midrashic creative philology. Concerning the law that requires  , “tassels,” on the four corners of one’s garment (Deut 22:12), Carmichael contends: “The fact that it is a positive command compels one to look for a symbolical meaning.”58 Carmichael does not specify the nature of the compulsion, which can only be eisegesis 55

Carmichael, Law and Narrative, 90 – 91. Ibid., 124 –25. 57 Ibid., 127. 58 Ibid., 207. 56

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rather than critical analysis. He associates the law with the attempted seduction of Joseph by Potiphar’s wife in Gen 39:7–20.59 He further attempts to suggest a relation between this law and the story of Judah and Tamar in Genesis 38. In the course of this discussion there are several philological inaccuracies: “In the parallel Num 15:38 law the term for the cords is ptîlîm. Again it is interesting to note that Judah handed his ptîlîm to Tamar by way of pledging that he would pay for her services (Gen 38:18, 25).”60 In fact, only the singular , not the plural, occurs in Num 15:38. More seriously, the analogue in Num 15:38 for Deuteronomy’s  is  (either “fringe” or “tassel”) rather than  (“cord”). In many of his discussions there are similar claims for intertextual allusion based upon an amalgam of “creative” and imprecise philology. 5. Philological Imprecision Carmichael’s philological analysis, as noted immediately above, is frequently grammatically inaccurate. As such, the assertions of intertextual allusion regularly depend upon overlooking inconsistences of number or syntax. In other instances, his discussion is not precise. For example, Carmichael asserts concerning Deut 12:31 that “these words are identical to those in Deut 12:4.”61 The unqualified assertion of identity overlooks the problem of the Numeruswechsel: Deut 12:4 is plural in the number of its grammatical addressee, whereas 12:31 is singular. As a further case in point, Carmichael argues that Deut 12:2–7 has four texts as its intended allusion: Exod 34:12–13; 1 Kgs 8:15–20; 1 Kgs 14:21–23; and 2 Kgs 17:6 –10.62 In considering the author of the centralization law to have in mind Exod 34:12–13, however, Carmichael, in fact, examines only Exod 34:13 (which follows Deut 12:3 closely), thereby overlooking the problems of that verse’s relation to Exod 34:12 and the coherence of the unit. Although Carmichael describes Exod 34:13 as “Deuteronomic,” he argues that the verse, and on that basis the entire story of the golden calf (Exodus 32–34), inspired the formulation of the law in Deuteronomy. Carmichael does not point out that Exod 34:13 is itself contextually problematic, the one verse having a plural addressee in a unit otherwise formulated in the singular. Moreover, its third-person plural pronominal suffixes on the list of cultic objects have nothing in the previous verse for antecedent. There is therefore a strong case for viewing it as

59

Ibid., 206 –10. Ibid., 210 n. 4. 61 lbid., 53. 62 Ibid., 29. 60

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an interpolation inspired by Deut 12:3, reversing Carmichael’s analysis of the direction of literary influence.63 His analysis of the prohibition against images in Exod 20:3 is particularly demonstrative of the way in which philological precision is subordinated to the drive to establish intertextual allusion: “Even the use of the preposition ‘before,’ which has caused exegetes so much trouble, can be explained as dependent upon the people’s initial request to Aaron: ‘Up, make us gods, which shall go before us’ (Exod 32:1).”64 The two prepositions that Carmichael renders identically in his translation as “before” in fact represent different Hebrew forms:   (Exod 20:3) as against  (Exod 32:1). Moreover, the first person suffixal pronoun has a different referent in each instance: divine self-reference in the first case, national self-reference in the second case. Carmichael commits another error while noting the literary dependence of the golden calf narrative upon that concerning Jeroboam’s erection of a pair of such calves at Dan and Bethel (1 Kgs 12:25–33): “This is why the story in Exodus 32 speaks of the calf in the plural and not in the singular.”65 In fact, in Exod 32:4, 8 the calf is consistently singular; plural “calves” only appears in this context in 1 Kgs 12:28. The narrator in Exod 32:1, 4, 8 refers to the deity in the standard grammatically plural form  / that can signify either “god” or “gods,” depending on context. Carmichael makes this error in the context of suggesting that the same Deuteronomist is the author of the Deuteronomic history, of the Decalogue, and of the golden calf episode of Exodus 32–34 (and of course of the laws of Deuteronomy 12–26). With Deuteronomy a product of the Deuteronomistic historian, the theory controls the philology.

63

In Deut 12:2–7, the third person masculine plural suffixes on the series of cultic objects listed in v. 3 construe perfectly: they have as their antecedent the plural reference to the Canaanite “nations” mentioned in v. 2. In contrast, Exod 34:13 does not construe grammatically. Its plural suffixes find in v. 12 only a singular antecedent (“the inhabitant of the land”). Verse 14 even uses the singular form of “god” in its prohibition of apostasy (“Bow down to no other god”). Although the Septuagint normalizes to the plural, this is not sufficient evidence to retrovert to an original Hebrew plural. The LXX may only be translating the more common form or making this passage conform to Deut 12:3. Contextually, therefore, the best way to explain its anomalous plurals (both in addressee and in pronominal suffixes) is to argue that the verse derives from Deut 12:3. Brevard S. Childs argues similarly that Exod 34:11–16 “has been strongly influenced by Deuteronomy”; see his The Book of Exodus (Old Testament Library; Philadelphia: Westminster, 1974), 613. 64 Carmichael, Law and Narrative, 319. 65 Ibid.

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6. Omission of Data Many of Carmichael’s arguments depend for their success upon incomplete information controlling the textual analysis. There are surprising omissions of relevant texts from the Hebrew Bible, cuneiform literature, and apposite secondary literature. The contextual and scholarly vacuum that results seriously distorts the textual analysis. For example, the prohibition against eating abominations that introduces the forbidden foods list of Deut 14:3–20 is keyed to the narrative of 2 Kgs 6:25–31, which recounts a story of the consumption of children for food during siege conditions in Samaria.66 Carmichael analyzes to the contrary—it does not seem credible that the food laws were organized to prohibit cannibalism! A number of additional narrative texts are mentioned in the discussion of Deuteronomy’s food laws, including (in this sequence): 1 Kgs 17:1; 18:1, 2; Gen 7:1–5; 1 Kgs 17:6, 16; 19:4–8; 2 Kgs 4:41.67 Surprisingly, the dietary laws of Leviticus 11 are never mentioned in the book, although they are hinted at in an oblique relative clause without citation: the list of prohibited foods in Deuteronomy 14, “which may be based upon some previously existing list.”68 Relying only upon Carmichael’s analysis—in a work that ostensibly stresses the intertextual references of the legal corpus—a reader would not know of the dependence of Deut 14:3–20 upon Lev 11:2–23.69 Possibly the most spectacular assertion of the book is that Deut 25:4, 5–10, 11–12 refer to the Tamar story in Genesis 38. Carmichael argues that the law of the levirate marriage is purely literary and fictional, to be understood only in terms of its coded references to the narrative of Genesis 38. The Israelite whose passive response is his offense is compared to Onan. This comparison is the meaning of the woman’s actions. The removal of the sandal from his foot signifies Onan’s withdrawal from intercourse, and her spitting in his face, Onan’s spilling of his seed to the ground. The shoe represents the female genitals, the foot the male organ, and the spitting semen.70

Carmichael maintains that except as a coded reference to the narrative of Onan, the law is unintelligible. Moreover, were there to be some such ritual as the text describes, it would not be considered subject to legal regulation but remain private: “I am claiming that no such sanction existed in the Deuteronomist’s time or at any previous time. In that the matter 66

Ibid., 68– 69. Ibid., 68 –70. 68 Ibid., 70. 69 Contrast the important analysis of William L. Moran, “The Literary Connection between Lv 11, 13–19 and Dt 14, 12–18,” CBQ 28 (1966): 271–77. 70 Carmichael, Law and Narrative, 296. 67

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belonged to the sphere of the family the law as a public instrument would have looked away.”71 His argument that the passage in question is unintelligible surprisingly makes no mention of Ruth 4:7– 8. Both cases demonstrate that Carmichael’s thesis—the refusal of the levirate duty is a private rather than a public action—cannot be sustained. In each case the action is specified as taking place at the village gate in the presence of elders who function as legal witnesses (Deut 25:7, 9; Ruth 4:1, 2, 9). Further, although both the person removing the sandal and the significance attached to its removal vary in the two cases, the fact that in both the removal of the sandal concludes the refusal of levirate marriage militates against Carmichael’s assertion that Deut 25:5–10 can only be interpreted allegorically.72 What sexual allegory would he provide for the “redeemer’s” removal of his sandal in the presence of another male, Boaz, in the Ruth passage? Not only does Carmichael not cite relevant inner-biblical texts, he also overlooks apposite extra-biblical ones. There is not a single reference to any cuneiform legal corpus.73 For example, Carmichael argues that the law concerning the corpse whose murderer cannot be identified (Deut 21:1– 9) alludes to the narrative of the slaughter of Amasa in 2 Sam 20:1, 2, 4 –13.74 Carmichael subsequently argues that the law concerning the fallen nestlings (Deut 22:6–7) refers to the same narrative, although not explicitly noting his reduplicated reference.75 Carmichael’s discussion makes no mention of the cuneiform convention of laws concerned with determining responsibility for a corpse. This topos is represented in both Laws of Hammurabi (§§23, 24) and the Hittite Laws (§6). Such omissions impose a type of enforced legal and literary vacuum upon the writers of Deuteronomy, denying them any tradition of legal authorship save, Carmichael grants, the Covenant Code. His silence regarding obvious legal precendents and analogies, Israelite and cuneiform, removes all interpretive controls. Carmichael removes further methodological controls by conducting his analysis with minimal engagement with the tradition of scholarship. One can imagine that in his concern to provide “novel solutions to old problems” he must innovate.76 Nonetheless, since his goal is “to overturn longstanding views on material that has always been in center stage in the 71

Ibid., 296 n. 16. On the legal significance of the removal of the sandal, see Ephraim A. Speiser, “Of Shoes and Shekels,” BASOR 77 (1940): 15–20. 73 There is a reference to a Sumerian case—to deny its relevance (Carmichael, Law and Narrative, 16 n. 2) and to a Mari ritual (ibid., 141 n. 5). Some of his articles do refer to Laws of Hammurabi. 74 Ibid., 136 – 39. 75 Ibid., 165–76. 76 Ibid., 13. 72

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study of the Bible,”77 it would assist his case to engage in a critical assessment of that scholarly literature explicitly. Instead, in many important ways he ignores it. There is no mention of Herbert Petschow’s explication of the ordering principles of Laws of Hammurabi or of the Laws of Eshnunna (see n. 6 above). There is no reference to studies of the redaction of the laws of Deuteronomy (see the works of Rosario Pius Merendino and Gottfried Seitz in n. 14 above). In his assertion of the literary unity of Deuteronomy 12, the question of the Numeruswechsel arises only in a brief footnote.78 In his arguments concerning the wisdom and reflective character of the Deuteronomic laws and their literary aspects, there is no reference to the work of Moshe Greenberg or Jacob J. Finkelstein (see n. 6 above). 7. The Rejection of Literary and Historical Criticism Carmichael’s rejection of literary-historical criticism derives from his belief that such scholarship misconceives the laws as actual law rather than as literary. In addition, he maintains that critical scholarship is excessively positivistic in its claims while in fact never passing beyond the realm of the hypothetical.79 Carmichael’s Deuteronomy is thus a legal corpus without interpolation and in which variations in legal form (casuistic or apodictic) or in the grammatical number of the addressee (the Numeruswechsel) have no significance for textual criticism and raise no problems in legal sequence. The entire corpus is a literary, ideological, and philological unity.80 Although Carmichael calls literary and historical criticism into question for what he deems speculative and arbitrary results, his own method cannot be said to be free of such difficulties. More seriously, Carmichael’s rejection of diachronic analysis—in the attempt to recover the literary and intellectual creativity of the text’s authors—produces the opposite result. The recourse to a synchronic method divorces the text from Israelite literary, cultic, legal, and intellectual history, removing the very cultural contexts that would allow the accomplishments of the Deuteronomists to emerge. 8. Textual Overdetermination In Carmichael’s analysis, many laws in the legal corpus have multiple narrative allusions. Conversely, the same historiographic text explains 77

Ibid. Ibid., 24 n. l. 79 Ibid., 14 –16. 80 Ibid., 127. 78

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multiple laws. The reciprocal intertextual allusiveness between law and narrative seems unrestrained. For example, Deut 18:1– 8 alludes to 1 Sam 8:10–17, 1 Sam 2:12–17, and Judges 17–18.81 The last of these texts, however, Judges 17–18, the story of the Levite hired by the Danite, is elsewhere also the intended allusion of Deut 12:8–12. 82 Precisely this overdetermination of intertextual allusions for the laws and the narratives raises questions about the precision of the analysis. Particular narrative texts tend to be frequently recycled to account for multiple laws: 1. The story of the golden calf provides the basis of one individual law (Deut 13:1 [ET 12:32]); two large series of laws (Deut 13:1–19 [ET 12:32, 13:1– 18] and 16:18 –17:13); plus the first tablet of the Decalogue (Deut 5:6 –15 // Exod 20:2–11).83 2. The request by Israel to traverse Edom (Num 20:14 –21) explains the exclusion of Edomites from the community (Deut 23:8 – 9 [ET 23:7– 8]); the prohibition of loans on interest (Deut 23:20 –21 [ET 23:19 –20]); the rule concerning eating from a neighbor’s crops (Deut 23:25–26 [ET 23:24 –25]); and the proclamation upon bringing the first fruits (Deut 26:5–10).84 3. The Joseph cycle of Genesis 37– 47 explains: the law of tithes (Deut 14:22– 29); the law of tassels (Deut 22:12); the law of adultery (Deut 22:22); the law of kidnapping (Deut 24:7); the admonition to justice, the laws of the sheaf and of corporal punishment (Deut 24:17–25:3); and the law concerning weights and measures (Deut 25:13–16).85

If these allusions are combined with those already asserted by The Laws of Deuteronomy, it is unclear whether there is any text in Genesis through 2 Kings to which the laws of Deuteronomy do not refer or that does not refer to the laws. Bereft of methodological controls, intertextuality is here brought to its apogee. It is necessary to raise the question of whether any of Carmichael’s claims for Deuteronomy’s allusions to narrative texts are tenable. Of course that Deuteronomy refers to or presupposes earlier laws or the narratives of the Tetrateuch or those finally incorporated into the Deuteronomistic history can hardly be doubted.86 The more specific pro81

Ibid., 102–5. Ibid., 30 –33. 83 Ibid., 54 –58, 58– 65, 86 – 96, 315–26. 84 Ibid., 231–34, 244– 46, 250, 307– 9. 85 Ibid., 74 –78, 206 –10, 214 –16, 261– 62, 279– 91, 299–303. 86 Deuteronomy explicitly refers both to prior narrative and legal traditions of the Tetrateuch; see Deut 1:5; 28:69. Methodologically more problematic is the question of whether Deuteronomy refers to texts incorporated into the Deuteronomistic history. By definition, such references cannot be explicit or they would jeopardize the authors’ pseudepigraphic presentation of Deuteronomy as Mosaic. For a possible implicit such 82

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posal, however—that Deuteronomy represents an aggregate of esoterically coded allusions to those narratives—is more doubtful. To take the most compelling of Carmichael’s arguments as an example, he maintains that the sequence of Deut 23:3 + 4–7 (ET 23:2 + 23:3–6), prohibiting the bastard and then the Ammonites and Moabites from membership in the community of Yahweh, derives from the account of the incestuous union between Lot’s daughters and their father, which engenders the eponyms of Moab and Ammon (Gen 19:30 –38).87 The sequence of the text is thus an example of reasoning from general (prohibition of the offspring of an incestuous union, the original meaning of the term ) to particular (the two nations with incestuous origins). Fishbane has made a strong case that Ezra 9:1, 11–12 presupposes just such an understanding of the Deuteronomy passage in order exegetically to prohibit intermarriage with foreigners in the postexilic community.88 Although this interpretation may well account for Ezra’s reuse of the passage, Lot’s union with his daughters cannot underlie the actual drafting of Deut 23:3 + 4 –7 (ET 23:2 + 3–6). As Mayes puts it, “The author cannot have known that story; had he known it, reference to it here would have been inevitable.”89 Indeed, the law itself provides a contrary double motivation for the law, relating it to the period between the exodus from Egypt and the entrance into Canaan: “because they [the Ammonites and Moabites] did not meet you with food and water on your journey after you left Egypt and because they hired Balaam son of Beor, from Pethor of Aram-naharaim, to curse you” (Deut 23:5–6 [ET 4– 5]); cf. Deut 2:19, 37 and Num 22–24). Carmichael provides no evidence to support his assertion that this contrary motivation is actually a complementary motivation used to demonstrate that the offspring of Lot and his daughters are doubly unfit, the illegitimacy of their birth reinforced by the misconduct of their descendants.90 If the drafter of the law had already cited two reasons for the exclusion of Ammonites and Moabites, it is unclear why yet a third reason—which Carmichael considers the primary one—should pass unmentioned. Moreover, Carmichael’s emphasis on the laws as a narrative allegory overlooks the legal and political issues that the texts in question conceivably address. Jacob Milgrom’s hypothesis concerning the passage just reference in the law of the king (Deut 17:15), see David Daube, “ ‘One From Among Your Brethren Shall You Set King Over You,’ ” JBL 90 (1971): 480 – 81; repr., idem, Biblical Law and Literature, vol. 3 of Collected Works of David Daube (ed. Calum Carmichael; Studies in Comparative Legal History; Berkeley: Robbins Collection, University of California at Berkeley School of Law, 2003), 189– 90. 87 Carmichael, Laws of Deuteronomy, 173–74; cf. idem, Law and Narrative, 228–31. 88 Fishbane, Biblical Interpretation, 120. 89 Mayes, Deuteronomy, 316 –17. 90 Carmichael, Laws of Deuteronomy, 174 –76.

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noted provides an interesting if not problem-free contrast.91 Presupposing the northern origins of Deuteronomy, he suggests that Deut 23:4 –7 (ET 23:3– 6) represents an Israelite polemic against the Judean monarchs, David and Rehoboam. These two, born respectively of Moabite (Ruth 4:18 –22) and Ammonite (1 Kings 14:31) ancestry, from a northern perspective manifest the illegitimacy of the Southern Kingdom, whose very founding kings are thus both “bastards” who should more properly be altogether excluded from Yahweh’s congregation! Carmichael’s hermeneutic divorces both law and literature from history and institutional reality. Taking Carmichael’s work on Deuteronomy as a whole, the proliferation of narrative allusions combines with the absence of a critical and historical analysis of the legal text in question to compromise the usefulness of his findings.

Carmichael’s Hermeneutics of Deuteronomy 12–26 Despite the serious methodological problems outlined above, Carmichael draws valuable attention to the literary character of the Deuteronomic laws, questions the presuppositions of conventional historical criticism, and raises the question of the relation between the biblical legal corpora and the narrative frame in which they are embedded. Also important is his stress on the theoretical and reflective aspects of the laws of Deuteronomy. He emphasizes that their application is not immediately judicial but that they address problems in Israelite literature.92 As such the laws have primarily not a legal but a literary history. In so characterizing the laws of Deuteronomy, Carmichael, like Stephen A. Kaufman, properly stresses the role of an emergent body of authoritative literature in ancient Israel as central to analyzing the structure and composition of Deuteronomy 12–26. In each of these two key points, the relation between law and narrative and the emphasis upon the reflective character of the laws, Carmichael builds in a useful manner upon basic approaches initiated by his teacher, David Daube. Daube has raised important issues concerning legal history within the biblical corpora, the arrangement of the laws, their relation to the narratives, the influence of wisdom upon the composition of Deuteronomy, and the development of legal thinking within ancient Israel. Nonetheless Carmichael in effect reverses many of Daube’s contributions: 91 Jacob Milgrom, “Religious Conversion and the Revolt Model for the Formation of Israel,” JBL 101 (1982): 169–76, esp. 173–74. Milgrom’s argument is weakened by the fact that Gen 19:30 –38 derives from J. It seems unlikely that a Judean text would serve as the basis for an Israelite polemic against Judah. 92 Carmichael, Law and Narrative, 17.

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Daube’s work recognizes the Israelite legal texts as meaningful in explicit formulation and as lying within a broader Near Eastern context of legal authorship.93 In contrast, Carmichael divests the laws of any significance connected to their explicit denotation. The net result of Carmichael’s approach is that, even if the methodological issues outlined above did not exist, his conceptualization of the legal corpus would remain fundamentally problematic. Carmichael makes the legal corpus of Deuteronomy a unique ancient text. He seems to allow that the ancient Near Eastern collections of cuneiform law, infrequently mentioned, do constitute something closer to conventional law. Equally he seems to allow that the two other Pentateuchal legal collections, the Covenant Code and the Holiness Code, each constitute something closer to normal law and indeed, that the Holiness Code incorrectly understood certain provisions of Deuteronomy as law.94 Carmichael does not cite any other wisdom text in the Bible or the Near East in which literary allusion takes place in such a manner. In fact, he emphasizes that Deuteronomy owes next to nothing to the tradition of cuneiform law: similarities of content may be simply the chance “product of similar human and social factors.”95 If, on the one hand, Carmichael makes Deuteronomy unique in the entire ancient world, on the other hand he maintains that its actual legal content, even at the text’s promulgation, was already hackneyed. In Carmichael’s analysis, the authors of Deuteronomy make no cultic, legal, ethical, religious, or conceptual innovations. The laws concerned with centralization of the cultus, secular slaughter, and conversion of sancta, for example, mark no departure from existing practice. The centralization law is a literary reflection on national traditions of apostasy, not a command that radically transforms worship. The denial of cultic innovation particularly emerges in the context of Carmichael’s analysis of the law sanctioning 93

David Daube, Studies in Biblical Law (Cambridge: Cambridge University Press, 1947); idem, The Exodus Pattern in the Bible (London: Faber and Faber, 1963); idem, “The Culture of Deuteronomy,” in Orita: lbadan Journal of Religious Studies 3 (1969): 27–51; and idem, “To Be Found Doing Wrong,” in Studi in onore di Edoardo Volterra (6 vols.; Pubblicazioni della Facoltà di giurisprudenza dell’Università di Roma; Milan: Giuffre, 1971), 2:1–13; repr., idem, Biblical Law and Literature, vol. 3 of Collected Works of David Daube (ed. Calum Carmichael; Studies in Comparative Legal History; Berkeley: Robbins Collection, University of California at Berkeley School of Law, 2003), 985– 94. 94 Carmichael, Law and Narrative, 203. 95 Ibid., 16 n. 2. Carmichael’s drive for narrative allusion here forces him to remove the interpretive context he previously allowed (Laws of Deuteronomy, 258 n. 9: “I would suggest a comparison between the ideal, artificial nature of the D laws and the hypothetical, paradigmatic character of ancient Near Eastern law codes”). Even in that instance, however, he is dubious of direct literary influence.

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secular slaughter in Deut 12:15–16. He maintains that it is “inherently improbable” that prior to Deuteronomy there was no secular slaughter.96 There are several issues here: the relevance of the alleged prooftexts he cites is unclear.97 More importantly, Carmichael makes no mention either of Exod 20:24 or of Leviticus 17.98 The former text suggests, clearly, that centralization of sacrifice is a cultic innovation; both texts suggest that secular slaughter of domestic animals, not at an altar, is equally an innovation. Carmichael studiously avoids reading Deuteronomy in the context of inner-Israelite legal history! The consequent rejection of Deuteronomy as innovative continues to drive much of Carmichael’s subsequent interpretation, which is forced to provide intertextual narrative allusions for laws that radically transform Israelite cultic norms. In the context of the tithes and firstlings law of Deut 14:22–29, the authors permit in v. 25 precisely the conversion of sancta that both the priestly stratum (Num 18:17) and the appendix to the Holiness Code (Lev 27:33) prohibit. The considerable tension between the two protocols is best understood in terms of Deuteronomy’s secularizing tendencies and is indeed consistent with the innovation of secular slaughter.99 That the Deuteronomist intends this association is clear from the technical formula for distance from the cultic center common to Deut 12:21 and 14:24. Carmichael, however, understands the unit to be inspired by previous narratives “in Israelite history in which brother Israelites interchanged money and food.”100 As a result, Carmichael contends that the story of Joseph and his brothers is one of the texts underlying the passage. Carmichael overlooks the fact that the Deuteronomic law is not concerned with the purchase of straightforward “produce,” but rather with the secular conversion of priestly dues.101 96

Carmichael, Law and Narrative, 38. He cites Gen 18:7; Job 1:13, 18; and 1 Sam 25:11 (ibid., 38 n. 21). It is doubtful that these texts can be used to support his argument. The patriarchal narratives frequently conflict with Pentateuchal law and explicitly are pre-Sinaitic; the Job text makes no mention of either whether or how animals were slaughtered and refers to non-Israelites; the Samuel passage does not preclude slaughter at an altar. 98 It is equally surprising that he makes no mention of Leviticus 17 in his assertion that “the repeated emphasis upon not consuming the blood [in Deut 12:20 –28] is readily explained as a reaction to the incident described in 1 Sam 14:31–33” (ibid., 45). 99 See Moshe Weinfeld, “On ‘Demythologization and Secularization’ in Deuteronomy,” IEJ 23 (1973): 230 –33. 100 Carmichael, Law and Narrative, 77. 101 Ibid., 75–78, esp. 77. Nor in the intertextual allusion he claims does Carmichael address the problems associated with the dating of the Joseph cycle. Much later, in connection with his assertion that Deut 24:17–25:3 is based on the Joseph cycle, he does raise this problem in a cursory footnote. He does not adduce evidence to support his statement challenging Donald B. Redford: “His remark (249–50) that the rest of Scripture 97

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That Carmichael essentially drains the biblical law of all cultic, ethical, and literary-historical content becomes particularly clear in his final chapter. There he extends his argument for the intertextual narrative allusiveness of Deuteronomy 12–26 to the Decalogues, both Exodus 20 and Deuteronomy 5. In this chapter Carmichael makes a number of important generalizations about the relation of biblical to ancient Near Eastern ethics and law. He argues that the Decalogue, like the legal corpus as a whole, is to be understood as a wisdom text that in its content and order constitutes an allegorical exposition of events in the narratives of the Pentateuch and the Former Prophets.102 The literary form of the Decalogue, legally speaking, makes no sense, Carmichael avers. He asserts that its first person voice is otiose save as pointing to a narrative elsewhere in the Pentateuch. The second person address of the deity is not meaningful except as pointing to a specific narrative in the Pentateuch. Equally, the self-identification of the deity in the first verse of the Decalogue is meaningless save as pointing to the narratives. In all these assertions, Carmichael overlooks the absence in the cuneiform legal collections of any counterpart to the Israelite idea of revelation: the attribution of law to God as his personal will. As with its form, so with its content. Carmichael maintains that the Decalogue is otiose in ancient legal and literary history: “We have to wonder why a lawgiver committed rules, such as those against murder, adultery, and stealing, to writing in the brief, unembellished, even banal, form in which we find them in the decalogue.”103 The ideas of the Decalogue were already universally known and acknowledged, he continues. Carmichael does not offer proof for his contention that people everywhere have always considered murder anathema and that, as self-understood, such prohibitions must point to an external narrative text. There is no evidence for a universal ancient prohibition of the taking of human life as unconditionally wrong, independent of class, race, or gender. Nor is there evidence that all ancient cultures had a fully developed notion of human agency and accountability (which the Decalogue presupposes), particularly those cultures in which a notion of fate, magic, or randomized divine control of events operates. In redefining the problem of legal order as that of narrative allusion and in substituting neo-midrashic eisegesis for controlled philology, Carmichael voids Deuteronomy—both the legal corpus and the Decalogue—of is completely silent on the subject of the Joseph story is simply wrong” (Carmichael, Law and Narrative, 286 n. 5); contra Redford, A Study of the Biblical Story of Joseph (Genesis 37–50) (VTSup 20; Leiden: E. J. Brill, 1970). 102 Carmichael, Law and Narrative, 313– 42. 103 Ibid., 315.

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all cultic, legal, and ethical force. Deuteronomy’s only novum and content thus become restricted to Carmichael’s hermeneutic, in which Carmichael emerges as the first person in more than two millennia to recover the esoteric true meaning—the narrative signification—of the legal corpus for which, by definition, there is no written evidence, save Carmichael’s original analysis. Perforce, Carmichael asserts the radical originality of his insights.104 Granted that all scholars try to be creative and original in their insights, Carmichael’s claim of uniqueness is problematic. That claim would be more meaningful were it predicated upon a thorough engagement with the very history of interpretation, whether ancient or modem, that it too casually dismisses as incorrect. In neither of Carmichael’s books is there a single reference, for example, to the Tannaitic midrash on Deuteronomy, the Sifre. In fact, his neo-midrashic method might have gained exegetical depth had it been informed by rabbinic sensitivity to linguistic nuance, boldness of “creative philology,” or notions of the legal corpus as revelatory and edifying. Instead, his method, apparently unconsciously, presents what amounts to ancient techniques—“creative philology” and a synchronic conception of the corpus—as if they were modern, and combines them with modern notions—Deuteronomy as a seventh-century pseudepigraph composed by scribal schools—argued without accompanying philological controls. What emerges is a hybrid that has neither the exegetical insight of the ancient rabbis nor the methodological controls of historical-critical scholarship. Carmichael’s hermeneutic is, rather, a hermetically closed system, essentially removed from any possible intellectual context—whether rabbinic, patristic, historical-critical, or Near Eastern. Thus decontextualized, the claim of originality is rendered hollow. Nor is there any obvious way within the terms of Carmichael’s system either to disprove or to corroborate the results. Because it is unclear what the exegetical rules are, with perfect legitimacy Carmichael could write yet another book providing still further novel readings of the narrative allusions intended by the Deuteronomist. Although Carmichael properly emphasizes the impact of an emerging body of Israelite literature on the composition, sequence, and structure of Deuteronomy 12–26, his methodology fails to provide insight 104 “It is no easy task to overturn longstanding views on material that has always been in center stage in the study of the Bible,” is the opening sentence of the book (ibid., 13). A following sentence describes his work as “radical in its results.” Such assertions by Carmichael of his own originality become a routine opening trope in many of his articles and books: “I suppose it is rather a startling thesis to claim . . .” (Women, Law, and the Genesis Traditions, 1; similarly, “Uncovering a Major Source of Mosaic Law,” 505); and “In order to make novel observations . . .” (“Laws of Talion,” 107).

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into the composition and structure of the legal corpus. Taken to their logical conclusion, Carmichael’s proposals subvert the significance and intelligibility of Deuteronomy as a text. For Carmichael, Deuteronomy’s coherence, extrinsic to it, lies in its allusiveness to the narratives; the radicalness of its innovation is confined to Carmichael’s reading of it; its content, but for its allegorical force, is banal.105

105 In his response to the original publication of this chapter, Carmichael seems to have reversed himself on a basic aspect of his approach. He originally held that the Deuteronomist’s main purpose in writing law was to point his audience toward the narratives of Genesis through 2 Kings. Knowledge of this technique of allusion to narrative was soon lost and so the writers of later legal codes, including the laws of Leviticus, created their texts with the understanding that Deuteronomy represented a literal legal code (see p. 238 above). He now argues the opposite: that “the priestly author of the rules in Leviticus not only knew how the deuteronomist worked, but formulated his rules in a similar fashion by taking up issues presented in the narratives” (Calum M. Carmichael, “Laws of Leviticus 19,” HTR 87 [1994]: 239–56 [at 245]). I could not find any point where Carmichael explains his change of perspective. In the same article, which includes a response to the original publication of this chapter, Carmichael points out what he considers to be my misunderstanding of his theory and methods but does not address some of the key issues I raised, particularly his “creative philology” and “philological imprecision.” When it comes to explaining the relative importance of narrative order or lexical connections in determining a potential textual allusion, his account is inconsistent. At first he argues that “the narrative sequence is but one factor in my argument” (“Laws of Leviticus 19,” 241). Then he downplays the philological issues I raise by stating that he actually places little weight on “linguistic links” but relies “more heavily on the parallelism and identical sequence of topics between narratives and laws” (ibid., 244). See further the incisive response to Carmichael’s article by Jacob Milgrom, “Law and Narrative and the Exegesis of Leviticus xix 19,” VT 46 (1996): 544– 48. From a different perspective, on Carmichael’s “literary” reading of law, see Meir Sternberg, Hebrews between Cultures: Group Portraits and National Literature (Indiana Studies in Biblical Literature; Bloomington: Indiana University Press, 1998), 666 – 67. Similar issues arise in Carmichael’s recent book, Illuminating Leviticus (see n. 1 above). In his careful review, Jeffrey Stackert demonstrates that Carmichael continues to use a neo-midrashic form of gezerah shavah in making links between law and narrative; that there are factual and substantive errors in his account of the laws and in his analysis of the Hebrew text; and that Carmichael does not meaningfully engage alternative scholarly views on the composition of Leviticus (review of Calum Carmichael, Illuminating Leviticus: A Study of its Laws and Institutions in Light of Biblical Narrative, in Journal of Religion 88 [2008]: 96 – 98).

11. The Hermeneutics of Tradition in Deuteronomy: A Reply to J. G. McConville The price at which alone the traditional view can be maintained is too high. —Samuel Rolles Driver1

In “Deuteronomy’s Unification of Passover and Ma ôt,” J. G. McConville proposes that the complex Passover law of Deut 16:1– 8 offers a theologically rich and socially inclusive polemic against autocratic kingship.2 The article implicitly directs welcome attention to the importance of Deuteronomy and biblical law for current research on the composition of the Pentateuch.3 At the same time, as its subtitle indicates, the article is framed less as an independent analysis of Deuteronomy’s Passover law than as “A Response to Bernard M. Levinson.” The article seeks to provide a critique of and an alternative to the argument that the problematic of religious and legal innovation was central to the composition of Deuteronomy.4 That model sought to account for the problematic details of the text as pointing to the literary activity of the Deuteronomic authors who, in the context of the Neo-Assyrian crisis, mandated a comprehensive transformation of traditional religion and law (including sacrificial norms, the festival calendar, judicial procedure, and the public administration). As readers of older texts and writers of new ones, the Deuteronomic authors were also conscious of their departure from older tradition. In order to legitimate their reform program, they drew upon those older texts, precisely at the points of conflict, revising them and incorporating them into their own new com-

1

Samuel Rolles Driver, “Preface,” in An Introduction to the Literature of the Old Testament (1891; 7th ed., 1898; repr., Gloucester, Mass.: Peter Smith, 1972), viii. 2 I wish to thank the editors of JBL for inviting a response to J. G. McConville, “Deuteronomy’s Unification of Passover and Ma ôt: A Response to Bernard M. Levinson,” JBL 119 (2000): 47–58. 3 On the importance of the Passover law to the larger question of the dating of the pentateuchal sources, see Timo Veijola, “The History of Passover in the Light of Deuteronomy 16, 1– 8,” ZABR 2 (1996): 53–75. 4 Bernard M. Levinson, Deuteronomy and the Hermeneutics of Legal Innovation (New York and Oxford: Oxford University Press, 1997), 53– 97.

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position. The reuse of the older material lent their new program the prestige of the past, as the departure from tradition was presented as its reaffirmation. In order to move beyond the reconstruction of infinite hypothetical literary strata, conventional diachronic analysis must take into account this problematic of authorship and authority if it is to offer a coherent interpretation of the legal corpus. Conversely, however, any analysis that fails to take into account the laws’ complex philology and literary history thereby obscures the creative struggle—theological, intellectual, judicial, and ethical—of that group of court scribes who sought to free Judah from Neo-Assyrian hegemony by radically transforming conventional religion. The point of departure for McConville’s challenge is his skepticism about the extent to which the legal corpus of Deuteronomy represents a transformation of prior Israelite religion and law. This skepticism is part of McConville’s rejection of any connection whatsoever between Deuteronomy and cult centralization, on the one hand, and Deuteronomy and Josiah’s reform (2 Kings 22–23), on the other.5 On these grounds, at many points in this article, the real disagreement is less with “Levinson” than with the broad consensus of scholarship over the two centuries since W. M. L. de Wette. At a deeper level, the challenge reflects serious ambivalence about the methodology and assumptions of source criticism and historical criticism. While the counter-reading of Deuteronomy’s Passover employs the scholarly language and the terminology conventionally associated with these diachronic approaches, as soon as one enters into the article it becomes clear that the tools actually function to distance the proposal from any attempt to locate Deuteronomy in a particular historical context and to obscure or level the conceptual and linguistic differences between Deuteronomy and the other legal material found in the Pentateuch. Out of this approach is generated the claim that the Passover law promotes social inclusion and emancipation from autocracy. One might easily imagine the validity of a methodologically consistent synchronic theology that attempts to articulate the meaning of the text in its final form. Here, however, the largely synchronic reading attempts to generate diachronic conclusions and thus to account for the composition of the text and the original meaning of the Passover law. On that basis, the article raises the stakes and warrants a meaningful response. The stakes are indeed high. Few texts are more fractured in their syntax and more resistant to reading than the griffin-like combination of Passover and Unleavened Bread found in Deut 16:1–8.6 The text is laden 5

McConville, “Unification,” 50, 56 – 57. The law requires, for example, that unleavened bread be eaten for seven days , “with it” (Deut 16:3), the grammatical antecedent of which can only be the paschal 6

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with the details of ritual performance, all of which militate against easy interpretation, let alone theologically profound exegesis. Deuteronomy’s Passover thus sharply presses the question about how—in a text that does not place comfortable formulations involving the covenant or the magnalia dei at its center—to generate theology out of law, and ritual law at that. Deuteronomy’s Passover presses further the question of both theological and exegetical method: of how to provide a coherent reading of a fractured text, one replete with grammatical, syntactical, and redactional difficulties.7 Accordingly, while responding to some of McConville’s specific offering of the previous verse (Deut 16:2). But that would then require the celebrant to consume unleavened bread for seven days : with the very paschal offering that the celebrant is prohibited from retaining beyond the morning following the evening slaughter! (see Veijola, “Passover,” 53–55; and Levinson, Deuteronomy, 81– 85). Such conceptual, syntactic, and grammatical anacoluthons demonstrate that a purely synchronic reading runs aground on a text like this: a properly “literal” reading requires the identification of tensions in the text. 7 The problems of reading that it triggered are not only ancient but modern, so much the more so that the festival created by Deuteronomy’s authors was not only itself a concerted act of literary-redactional bravado, but one patently inconsistent with competing presentations elsewhere in the Pentateuch of both Passover and Unleavened Bread. The Chronicler struggled to resolve the fearful asymmetry of the Pentateuch’s equally authoritative, if mutually exclusive, requirements for the preparation of the Passover. In his narrative of Josiah’s observance of the Passover, the postexilic Chronicler harmonizes the contradiction between the discrepant Passover laws of Exod 12:9 (which requires that the paschal lamb be roasted in fire and forbids its being boiled) and Deut 16:7 (which stipulates that it must be boiled) by insisting, “They boiled the paschal offering in fire, according to the law” (2 Chr 35:13). See Menahem Haran, Temples and Temple-Service in Ancient Israel: An Inquiry into the Character of Cult Phenomena and the Historical Setting of the Priestly School (Oxford: Clarendon, 1978; repr., with new preface and corrections, as Temples and Temple-Service in Ancient Israel: An Inquiry into Biblical Cult Phenomena and the Historical Setting of the Priestly School [Winona Lake, Ind.: Eisenbrauns, 1985]), 322; Isaac [Isac] Leo Seeligmann, “The Beginnings of Midrash in the Books of Chronicles,” Tarbiz 49 (1979–1980): 14 –32 (at 31–32) (Hebrew) [German translation: “Anfänge der Midraschexegese in der Chronik,” in idem, Gesammelte Studien zur Hebräischen Bibel (ed. Erhard Blum; FAT 41; Tübingen: Mohr Siebeck, 2004), 31–54]; H. L. Ginsberg, The Israelian Heritage of Judaism (New York: Jewish Theological Seminary, 1982), 57–58; Michael Fishbane, Biblical Interpretation in Ancient Israel (Oxford: Clarendon, 1985), 134 –37; and Ehud Ben Zvi, “Revisiting ‘Boiling in Fire’ in 2 Chron. 35.13 and Related Passover Questions: Text, Exegetical Needs and Concerns, and General Implications,” in Biblical Interpretation in Judaism and Christianity (ed. Isaac Kalimi and Peter J. Haas; Library of Hebrew Bible/Old Testament Studies 439; London: T & T Clark, 2006), 238 –50. In attempting to honor both requirements, the resulting harmonization conforms to neither. In his bid for harmonization, the Chronicler created a text that, quite literally, cannot be read: it can only be interpreted. The compromise, which seeks to overcome contradiction, conforms to neither; yet, the Chronicler asserts, it conforms to prior law ($ ). If so, that tradition of law bears witness less to some unmediated historical past

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challenges,8 rather than debate details or rehearse widely held assumptions about methodology, it seems more meaningful to focus on several larger issues of broader interest: the quest for a meaningful theology of biblical law, the significance of citation as a technique to justify a transformation of tradition, and the importance of the diachronic method in reading biblical law as a means to articulate textual meaning.

The Problematics of Method and Theology in Biblical Law The premise of McConville’s monograph Law and Theology in Deuteronomy, like that of the current article, was the rejection of the Josianic context for the legal corpus of Deuteronomy.9 This dating may fairly be debated and, in fact, non-Josianic contextualizations for Deuteronomy, both earlier and later, have long been proposed.10 McConville argued that than to tradition as itself a hermeneutical construction. The conformity to a prior legal authority here invoked as normative seems much more to reflect the clear selfconsciousness that the past requires the mediation of the present if it is to be consistent. To state this premise more radically, the Chronicler shows the past to be the construction of the present. It is the Chronicler who, in his attempt to create the charter for the temple community of postexilic Yehud, seeks so sharply to integrate and synthesize, in this early rewritten Bible, those various documents of the Pentateuch that had remained, until recently, separate. 8 One criticism in particular was valuable (McConville, “Unification,” 52). The issue is that the J account of the Passover (Exod 12:21–23) makes no mention of eating while P requires the consumption of the lamb but in a way that is completely at odds with standard priestly protocol, since the lamb is roasted rather than boiled (Exod 12:8– 9). Using the standard source-critical model of J as preexilic makes it difficult to explain how P’s requirement to consume the lamb in that way arose, since it also conflicts with Deuteronomy, which, while requiring consumption, specifies boiling (Deut 16:7). McConville correctly points out weaknesses in the two proposals I submitted in first pointing out and then attempting to explain the difficulty. Still, his arguments against the idea that P might have received the tradition from Deuteronomy were included in my presentation of the hypothesis (Deuteronomy, 61). 9 See J. G. McConville, Law and Theology in Deuteronomy (JSOTSup 33; Sheffield: JSOT Press, 1984), 155. 10 Adam C. Welch, for example, believed that the legal corpus originated in prophetic circles in northern Israel, thereby reflecting the prophecy of Hosea, and was brought south to Judah by refugees following the kingdom’s destruction, where a centralization layer was eventually added to it (The Code of Deuteronomy: A New Theory of Its Origin [New York: George H. Doran, (1924)]). In contrast, Gustav Hölscher understood the legal corpus to represent the postexilic utopian theology of the priests and regarded the laws as the deposit, not the catalyst, of Josiah’s reform (“Komposition und Ursprung des Deuteronomiums,” ZAW 40 [1922]: 161–255). In the North American context, the Society of Biblical Literature arranged a still-valuable discussion of these dating issues, one that carefully probes the correspondences between Josiah’s actions and

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the theological significance of Deuteronomy was its conception of the relation between people and God as a treaty. The inevitable historical issue generated by this hypothesis, however—whether the treaty form pointed to Hittite treaties of the second millennium B.C.E. or to Neo-Assyrian treaties and their Aramaic reflections at Sefire in the first millennium—was not addressed because no actual Near Eastern treaties were adduced.11 The literary analysis, while deploying the standard sigla of source criticism, pointed to no real tensions, layers, or contradictions either within the legal corpus of Deuteronomy or between it and the other pentateuchal sources. McConville maintained, with refrain-like repetition, that “the laws are consistently compatible with Deuteronomy’s self-presentation as speeches on the verge of the promised land.”12 With Israel still in Moab, yet to enter Canaan, the narrative time of the text has become the historical date of Deuteronomy’s composition. The next step followed logically, as the narrator of the text, in its literary world, was transformed into its author, Mosaic in all but name: “it seems best to think of a single author as having been responsible for all the laws in their entirety.”13 Reviewers expressed a number of concerns about the methodology, the extent to which the treaty material of the ancient Near East was investigated, and the engagement with the scholarly literature.14 In this article, as in the earlier book, McConville seeks to make biblical law, and Deuteronomy in particular, theologically significant. In the ambivalence toward philological method and source criticism, the author may well be implicitly responding to the excesses of the “slice and dice” method of diachronic analysis, which has in fact too often been so fixed upon reconstructing the history of the text and assigning it a context that all issues of textual meaning and theological significance are shunted to one side.15 Thus, McConville, in his reading of the Passover law of Deut the requirements of Deuteronomy. See Julius A. Bewer, “The Case for the Early Date of Deuteronomy,” JBL 47 [=The Problem of Deuteronomy: A Symposium] (1928): 305–21; and L. B. Paton, “The Case for the Post-Exilic Origins of Deuteronomy,” JBL 47 (1928): 322–57 (Paton’s article argues against the postexilic date). 11 See the more detailed comments in Bernard M. Levinson, “McConville’s Law and Theology in Deuteronomy,” JQR 80 (1990): 396 – 404, esp. 402. 12 McConville, Law and Theology, 155; similarly, 51, 61, 87, 110. 13 Ibid., 156. 14 See the last sentence of the review by A. D. H. Mayes: “There may be much in Deuteronomy which is consistent with its self-presentation as a speech of Moses on the border of the land, but there is much that is not” (ExpT 96 [1985]: 370 –71). Other reviews raising similar concerns include A. Graeme Auld, SJT 39 (1986): 257–58; Georg Braulik, Bib 67 (1986): 423–27; J. Pons, ETR 61 (1986): 583– 84; Norbert Lohfink, BZ 34 (1990): 122–24. 15 For an analysis of the emergence of the newer, synchronic literary approach in light of these issues, along with an assessment, see Bernard M. Levinson, “‘The Right

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16:1– 8, finds that it is replete with an inclusive embrace of the poor, an affirmation of the land, and an opposition to “autocratic kingship.”16 Such a reading drives home the author’s commitment to social justice, ecology, and democracy. But there are some risks: not only the contraction of theology to social justice but also, by relinquishing the controls of philology, the divorce of theology from the scriptural text. The Passover law of Deut 16:1– 8 never refers to the poor, to the land’s blessings, or to autocratic kingship.17 In fact, at precisely those points where opportunities exist to make such references, were they indeed the priorities of the Deuteronomic author, they are completely avoided. The rhetorical description of the , “unleavened bread,” as  , “bread of distress” (Deut 16:3), for example, avoids any reference to the poor. Although the phrase could, abstractly, be translated “bread of poverty,” and might thus have alluded to the deprivation of the Israelites as slaves in Egypt, the actual connotation of the unrisen bread is to recall “the haste of the Exodus, not the bondage (Exod 12:39; 13:8 –10).”18 Similarly, the text refers to no tyrannical king, whether Egyptian pharaoh or Israelite; what it repeatedly stresses is the commemoration of the departure from Egypt (Deut 16:1, 3, 6).

The Double Problem of Text and Historical Context The article does not provide what it promises: “an alternative way of handling the data.”19 Instead, it offers something closer to a non sequitur: “In my view the Deuteronomic laws are best understood not as promoting the reform of King Josiah but, on the contrary, as part of a vision of an Israel

Chorale’: From the Poetics to the Hermeneutics of the Hebrew Bible,” in “Not in Heaven”: Coherence and Complexity in Biblical Narrative (ed. Jason P. Rosenblatt and Joseph Sitterson; Indiana Studies in Biblical Literature; Bloomington: Indiana University Press, 1991), 129–53; repr., ch. 1 infra. 16 McConville, “Unification,” 55–58. 17 The claim that Deuteronomy’s Passover law involves a rich vision of social inclusion invokes (“Unification,” 55 n. 32) a valuable article by Norbert Lohfink. That meticulous study shows how various destitute or marginalized groups are included in the text of Deuteronomy and notes their participation in the assembly of Israel at the Temple to celebrate the festivals of Weeks and Booths (Deut 16:11, 14). With its detailed charts, Lohfink’s article demonstrates the complete absence of the poor and the marginalized from the Passover law of Deut 16:1– 8 (Norbert Lohfink, “Das deuteronomische Gesetz in der Endgestalt: Entwurf einer Gesellschaft ohne marginale Gruppen,” BN 51 [1990]: 25– 40, esp. 30, 34). 18 Jeffrey H. Tigay, The JPS Torah Commentary: Deuteronomy (Philadelphia: Jewish Publication Society, 1996), 154. 19 McConville, “Unification,” 48.

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free from domination by autocratic kingship. . . .”20 Any valid counterproposal to the Josianic provenance of Deuteronomy’s core legislation, however, must offer precisely that: an alternative historical context, whether earlier or later. While rejecting the thesis (which represents a widely held consensus), McConville provides no specific alternative context in which the rejection of autocratic kingship might conceivably be located.21 20

Ibid., 56 – 57. The article, as published (from the middle of the top sentence on p. 57, after “kingship,” through to the end on p. 58), adds to the MS forwarded by JBL the suggestion that the context for the Passover law (Deut 16:1– 8) is the same as that of the law of the king (Deut 17:14 –20), which McConville dates to the premonarchic period. Thus there is an attempt to locate the text historically. This attempt works at cross-purposes with itself: (a) It is difficult to find in the text what the author describes as being there. The assertion is that the Passover law reflects resistance to autocracy and is thus to be connected with the law of the king. But the Passover law makes no mention of kingship or resistance to autocracy (the closest it comes is the affirmation of the exodus from Egypt, with no mention of kingship or pharaoh, in the motive clauses of Deut 16:1b, 3b, 6b). Conversely, the law of the king makes no mention of Passover. Nor does it ascribe to the king any participation whatsoever, direct or indirect, in the cultus. Precisely the lack of connection between Passover and monarch, and between king and cult, comes much closer to providing a way of coming to terms with the commitments of the Deuteronomic authors. See Gary N. Knoppers, “The Deuteronomist and the Deuteronomic Law of the King: A Reexamination of a Relationship,” ZAW 108 (1996): 329– 46. (b) The important recognition that the law of the king represents a radical challenge to the conventional royal ideology, both Israelite and Near Eastern, is well-taken. But the author then confuses the model and contradicts his position. What Deuteronomy opposes is indeed the conventional conception of the king as playing an active military, cultic, and judicial role (so the five vetitives of Deut 17:16 –17). This view rejects the Judean, Israelite, and Near Eastern convention (so McConville, “Unification,” 57). Deuteronomy challenges that model, whereby the king is above the law and himself promulgates law, by the unprecedented notion that the king is himself subject to the law, as are the other branches of the public administration. In that way, the authors of Deuteronomy create, arguably for the first time, a form of constitutional monarchy that subordinates the king (along with judges, priests, and the prophet) to the authority of the Torah (Deut 16:18 – 18:22). Thus, Deuteronomy’s opposition to kingship manifests itself not by rejecting kingship altogether, of which there is no hint, but by subordinating the king to Deuteronomic Torah in a constitutional monarchy. But in then describing Deuteronomy as offering an “alternative to a monarchic constitution” (p. 58), which he views as synonymous to its resistance to “autocratic kingship” (p. 57), the author has left both the text and the valuable model behind by describing Deuteronomy as rejecting the very constitutional monarchy that it urges. (The source of that model is Norbert Lohfink, “Distribution of the Functions of Power: The Laws Concerning Public Offices in Deuteronomy 16:18 – 18:22,” in A Song of Power and the Power of Song: Essays on the Book of Deuteronomy [ed. Duane L. Christensen; Winona Lake, Ind.: Eisenbrauns, 1993], 336 – 52.) (c) In noting two different dates for the Ämtergesetze, or “laws concerning public officials” (Deut 16:18 –18:22), the premonarchic (eleventh century!) date assigned it by 21

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In the absence of such a context, the drive for freedom cannot easily be explained because it is disconnected from resistance to any specific autocracy.22 There is no indication of who opposed which autocrat when, for what reason; or whether said autocrat was Israelite, Judean, Egyptian, Neo-Assyrian, Neo-Babylonian, Persian, Ptolemaic, Seleucid, Maccabean, or Roman.23 The bid to resist autocracy therefore appears unmotivated since it lacks a historical trigger. And in the absence of historical motivation for this resistance to autocracy, which the author nonetheless regards as the central concern of the legal corpus, it becomes difficult to account for the composition of the legal corpus in the first place. The absence of any concrete alternative way of explaining Deuteronomy’s Passover law has another dimension: McConville does not clarify how to read the very text that is the subject of the article, the Passover law of Deut 16:1– 8. If the theology he presents floats free of history, so does it also float free of the text. It is not clear that McConville’s analysis accounts for key features of the text that it seeks to explain. To take an example raised by McConville, one of the anomalies of the Passover law is the requirement that the pilgrim, no sooner than he or she fulfills the comBaruch Halpern and the exilic date assigned by Lothar Perlitt (and by Georg Braulik and Norbert Lohfink, who are cited but whose position on the matter is not indicated), the author judges between them as follows: “My preference is for the latter” (p. 57). This one sentence represents the total rationale for deciding between the two models and assigning a date to the text that is central to the author’s argument about the significance of Deuteronomy’s Passover. 22 McConville’s recent book similarly divorces Deuteronomy from historical context, rejects source criticism, and situates the text in a timeless present; see J. G. McConville and J. G. Millar, Time and Place in Deuteronomy (JSOTSup 179; Sheffield: Sheffield Academic Press, 1994). In his review, Philip Jenson points out the authors’ assertion that “it is unnecessary to attribute differences of content, grammar and theology to different sources or editors.” In his final paragraph, he notes: “The authors avoid making any claims for the historical setting and authorship of the book, although they wish to argue against the common view that it was written to support the statist reform of Josiah” (JSS 42 [1997]: 386 – 87). That book thus displays the same puzzling non sequitur that shows up in McConville’s article. Clearly, the Josianic contextualization of Deuteronomy may properly be debated. But is the absolute divorce of the text from any specific context, breaking any link between theology and history, the only available alternative? For a painstaking analysis of the cost—both scholarly and theological—of this approach, see Reinhard Achenbach, review of Time and Place in Deuteronomy by J. G. McConville and J. G. Millar, ZABR 1 (1995): 149–55. 23 So open-ended is McConville’s alternative reading that it is completely compatible with my argument that the authors of Deuteronomy wielded the Neo-Assyrian treaty form against its inventors. By replacing the foreign suzerain with Yahweh as the Great King to whom unconditional loyalty is owed, the legal text of Deuteronomy represents a revolutionary attempt to free Judah from Neo-Assyrian domination. See Levinson, Deuteronomy, 134 (with bibliography), 147.

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mand to travel to the Temple for the Passover offering, must immediately, the next morning, return home to celebrate Unleavened Bread: “And in the morning you shall turn back and go to your tents” (Deut 16:7b). McConville does not accept the suggestion that this unusual double motion imposed upon the hapless pilgrim reflects the literary integration of two originally distinct observances (Passover and Unleavened Bread) in the context of Deuteronomy’s centralization of the festival calendar.24 In rejecting this proposal, McConville does not provide a coherent alternative to it. Instead, two mutually exclusive interpretations (the pilgrims return to their encampment around Jerusalem; the pilgrims return to their homes in the villages throughout Judah) are each found not fully adequate, although both remain in play. The ambiguity that results is attributed to the “coyness” of the Deuteronomic author.25 And then a third solution is advocated: The open-ended direction to return “to your tents,” as a foil to the gathering at the “chosen place,” and followed by the nonlocated final “assembly,” is a function of this extension of the worship life of Israel into the land.26

The alleged Deuteronomic desire to extend “the worship life of Israel into the land” cannot explain the textual problems at hand since that premise finds no support in the text, which actually requires the opposite as it restricts sacrificial worship to the Temple: You must not sacrifice the paschal offering in any of your city-gates which Yahweh your God is giving you; but rather, at the place where Yahweh your God shall choose to establish his name, there shall you sacrifice the paschal offering in the evening. . . . (Deut 16:5– 6)

Nor is it clear how McConville’s alternative reading explains another key anomaly in Deuteronomy’s Passover law. J restricted the sacrifice to animals from the flock: “Go, select flock-animals for your families and slaughter the passover lamb” (Exod 12:21). P retains that specification: “Tell the whole congregation of Israel that on the tenth of this month they are to take a lamb for each family, a lamb for each household” (Exod 12:3). P also provides specific preparation instructions: They shall eat the lamb that same night; they shall eat it roasted over the fire with unleavened bread and bitter herbs. Do not eat any of it raw or boiled in water, but roasted over the fire, with its head, legs, and inner organs. (Exod 12:8 – 9)

24

Levinson, Deuteronomy, 79– 80, 89. McConville, “Unification,” 54. 26 Ibid., 56. 25

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Deuteronomy diverges from each of these requirements, both in the specification of the animal to be slaughtered and in the means for its preparation:

     %         %  You shall sacrifice the passover offering for Yahweh your God, from the flock or the herd, in the place where Yahweh shall choose to establish his name. (Deut 16:2) . . . 

       

You shall boil and eat it in the place which Yahweh your God shall choose. . . . (Deut 16:7)

To explain Deuteronomy’s divergence, McConville offers this suggestion: the extension of the focus from the Passover lamb to any animal from herd or flock is in keeping with Deuteronomy’s strong interest in herd and flock as being among the typical blessings of the land (Deut 7:13; 12:6). The vocabulary of the law in general, including the “boiling” rather than “roasting,” is in keeping with this trend in the book. Passover is thus subjected to the exigencies of Deuteronomy’s theological construct.27

The two verses adduced by McConville in support of this proposal do not in actuality pertain to his argument. While in the first verse God does promise fertility of crop and fecundity of herd in reward for national obedience (Deut 7:13), the problematic word in the Passover law that requires explanation—, “large cattle” (Deut 16:2)—does not appear. Instead, the verse speaks of   , “the calves of your oxen” (Deut 7:13). Just as the vocabulary is different, so also is the context: in the law that McConville seeks to explain, the focus is the animal to be slaughtered for Passover; in the verse he adduces, simply a general promise of increase as divine reward for covenantal obedience that makes no reference to the cultus. Nor does the second verse provide the necessary support. It does not have anything to do with “herd and flock as among the typical blessings of the land.” Instead, it speaks specifically of       , “the firstlings of your herds and flocks” (Deut 12:6). There is no mention of divine blessing; what is at issue is Deuteronomy’s requirement for centralization of the Israelite cultus. This law provides an exhaustive list of all the conventional sacrifices, for all occasions and including the full range of animal and presumably cereal offerings, in order to specify that all sacrifice must now be performed at the central sanctuary rather than at the local altar:

27

Ibid., 56.

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III. Debate and Dialogue: The Question of Method But rather, at the place that Yahweh your God shall choose, . . . there shall you bring your burnt offerings and your other sacrifices, your tithes and contributions, your votive and freewill offerings, and the firstlings of your herds and flocks. (Deut 12:5– 6)

Each verse cited by McConville has good reason, on its own terms, to be as inclusive as possible, whether to affirm divine blessing or to require that every cultic act that formerly took place at the local altars throughout Judah must now, under centralization, take place in Jerusalem. But those two separate facts cannot be decontextualized and then elevated into a general interest by the Deuteronomic authors in “herd and flock” as such. Still less can that alleged interest then function as a portmanteau explanation that overlooks differences of vocabulary and context while seeking to explain how and why a restriction concerning the animals permitted for the Passover offering—only sheep—should suddenly be abrogated and expanded to permit both cattle and sheep. Nor does the proposal explain Deuteronomy’s distinctive stipulation that the animal be boiled. That injunction is markedly inconsistent with the explicit prohibition of just that means of preparation:             , “Do not eat any of it raw or boiled in water, but roasted over the fire” (Exod 12:9). It is unclear how the suggestion of a Deuteronomic interest either in the land or in “herd and flock” accounts for the different means of preparation or addresses the larger issue of a fundamental legal contradiction in ancient Israel’s religious calendar.28 A simpler explanation of these ritual and legal-historical differences is to view them as triggered by cultic centralization and as consistent with the other changes to sacrificial procedure introduced by Deuteronomy. Just as local sacrifice is prohibited by Deuteronomy under centralization, so too, logically, is the local ritual slaughter (in the doorway of the private home) of the paschal lamb. Under centralization, all cultic-ritual activity involving the blood of animals must take place at the central sanctuary. With Passover thus integrated into the normative system of Temple sacrifice, its original distinctiveness is lost, as both the means of preparation (boiling) and the animals (large and small cattle) that are standard for sacrifice (Deut 12:21; Exod 20:24; Num 22:40) become the norm.29 The now cen28 A separate study would be necessary properly to address the question of whether D directly abrogates Exod 12:8– 9 (P). The abrogation might take place in the reverse direction, on the premise that D precedes P, which still reflects the consensus of biblical scholarship, and is a position that I hold. The approach of John Van Seters would also view P as responding to D as regards the Passover law. The larger question, which cannot be engaged here, is whether P’s instructions retain any older material and reflect preDeuteronomic procedures. 29 More specifically, boiling is the means for preparing those portions in which the celebrant and priest share (1 Sam 2:13–16). Concerning the shift in animals and prepara-

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tralized Passover is thus marked primarily by the distinctive time of its observance and by its commemorative liturgy: “But at the place where Yahweh your God shall choose to establish his name, only there may you offer the passover—in the evening, at sunset, the time of your departure from Egypt” (Deut 16:6).30

Consistency with Tradition as a Rhetorical Claim McConville considers it implausible that Deuteronomy abrogates prior law because it regularly presents itself as consistent with that law. The resulting claim is that the legal corpus “depends profoundly on tradition” and that Deuteronomy establishes “a continuity between the laws given on Horeb and the ongoing teaching of ‘Moses’ and his successors.”31 The complex source-critical and redactional difficulties involved in dating “the laws given on Horeb” (the Decalogue of Deuteronomy 5) prior to the legal corpus of Deuteronomy 12–26 are not noted, however. Nor is there any mention of the alternate Sinai Decalogue (Exodus 20). Consequently, the textual relationship between the two is explored neither at the synchronic level nor at the diachronic level. In fact, the specific argument that the legal corpus assumes a prior, authoritative Decalogue tradition, which McConville anchors in the work of Georg Braulik, completely reverses Braulik’s position.32 Braulik restricts the impact of the Decalogue to the final editorial redaction of the legal corpus during the exile or later.33 He argues that the Decalogue—far from representing an ancient tradition upon tion, see Gerhard von Rad, Deuteronomy (OTL; Philadelphia: Westminster, 1966), 112. For Deuteronomy’s excision of other ancient features of the Passover, see Moshe Weinfeld, “The Reorientation in the Understanding of the Divinity and of the Cultus in the Book of Deuteronomy,” Tarbiz 31 (1961–1962): 1–17 (at 5) (Hebrew; English summary); and Haran, Temples and Temple-Service, 321. 30 Georg Braulik, “Leidensgedächtnisfeier und Freudenfest: ‘Volksliturgie’ nach dem deuteronomischen Festkalender (Dtn 16, 1–17),” TP 56 (1981): 335–57; reprinted in and cited from idem, Studien zur Theologie des Deuteronomiums (Stuttgarter Biblische Aufsatzbände, Altes Testament 2; Stuttgart: Katholisches Bibelwerk, 1988), 101–3; Ginsberg, Israelian Heritage, 57. 31 McConville, “Unification,” 51. 32 Ibid., 51 n. 18. 33 “[T]he deuteronomic collection of laws can only have been expanded and structured in imitation of the Decalogue during the Exile or afterward.” Thus Georg Braulik, “The Sequence of the Laws in Deuteronomy 12–26 and in the Decalogue,” in A Song of Power and the Power of Song: Essays on the Book of Deuteronomy (ed. Duane L. Christensen; Winona Lake, Ind.: Eisenbrauns, 1993), 313–35 (at 334). For the original, see idem, Die deuteronomischen Gesetze und der Dekalog: Studien zum Aufbau von Deuteronomium 12–26 (SBS 145; Stuttgart: Katholisches Bibelwerk, 1991), 116.

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which the authors of Deuteronomy drew—played a secondary role in the redactional shaping, organization, and integration of the different sections of the legal corpus, once the legal corpus reached its final form.34 The Decalogue figures not in the beginning but toward the end of this process, not prior to the legal corpus but posterior, as influencing not its composition but its redaction, not as authoritative tradition but as a literary text that provides a redactional blueprint, not as deference to the past but in the conscious shaping of the legal corpus by scribes working with texts. McConville’s own citation thus compromises his position: Braulik’s redactional analysis, if framed now in more theoretical terms, demonstrates the way in which “tradition” represents an active shaping and interpretation of the past whose point of departure is the present. Far from accepting the text’s assertions about itself at face value, the reader must seek to interpret them.35 The claim of conformity with tradition in the case of Deuteronomy warrants investigation as a complex rhetorical trope.36 The authors of Deuteronomy appropriate the legitimacy 34

For an astute analysis of this approach, arguing for the Covenant Code as providing the dominant structuring influence on the legal corpus, see Eckart Otto, review of Die deuteronomischen Gesetze und der Dekalog by Georg Braulik, TLZ 119 (1994): 15–17. My goal here is not to evaluate Braulik’s position but simply to note the discrepancy between McConville’s arguments and the article cited in support of them. More consonant with McConville’s position concerning the priority of the Decalogue to the legal corpus would have been a reference to Stephen A. Kaufman, “The Structure of the Deuteronomic Law,” Maarav 1/2 (1978 –1979): 105–58. 35 In accepting the text’s assertions about itself at face value, McConville does not bring to bear the scholarly literature on citation in Deuteronomy. See David Zvi Hoffmann, Das Buch Deuteronomium (2 vols.; Berlin: M. Poppelauer, 1913–1922), 1:167– 68; Dieter Eduard Skweres, Die Rückverweise im Buch Deuteronomium (AnBib 79; Rome: Pontifical Biblical Institute, 1979); Jacob Milgrom, “Profane Slaughter and a Formulaic Key to the Composition of Deuteronomy,” HUCA 47 (1976): 1–17; Norbert Lohfink, Die Väter Israels im Deuteronomium: Mit einer Stellungnahme von Thomas Römer (OBO 111; Freiburg, Switzerland: Universitätsverlag; Göttingen: Vandenhoeck & Ruprecht, 1991), 87– 99, along with Thomas Römer’s “Nachwort,” 111–23, esp. 118 –19; and Levinson, Deuteronomy, 42– 43, 46 – 47, 67– 68. 36 Ironically, McConville’s own citation of the research literature validates the very model of the reworking of tradition that he considers implausible in the case of Deuteronomy. Scholars such as Norbert Lohfink, Georg Braulik (as already shown), John Van Seters and others are invoked to support claims that misrepresent or that are actually incompatible with their arguments. For example, McConville cites the work of Van Seters in support of his position that Passover and Unleavened Bread were combined into a single festival prior to Deuteronomy. In doing so, he does not accurately represent this scholar, attributing to him the idea that Exod 12:21–27 “makes little sense without assuming something of what has gone before” (McConville, “Unification,” 50 [emphasis added]). However, what Van Seters had in mind was not, contrary to McConville, to date “the united feast prior to D.” Rather, Van Seters maintains on literary and redactional grounds that Exod 12:21–27—the literary account of Passover—is not coherent except as

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of tradition by repeatedly asserting their consistency with it, while also stigmatizing non-Deuteronomic procedures as illegitimate—even where, as with the prohibition of local sacrifice (Deut 12:13–14), they conform suspiciously to older cultic and legal norms (Exod 20:24).37 Such rhetorical strategies for the justification of their program are evident elsewhere in the a direct continuation of the prior literary unit (Exod 12:1–20), the whole of which he attributes to the Priestly source. Thus, Van Seters actually argued: “First of all, the separation of vs. 21–27 from the preceding section is inexplicable. The unit certainly cannot stand by itself as an etiology of the Passover . . .” (The Life of Moses: The Yahwist as Historian in Exodus–Numbers [Louisville: Westminster/John Knox, 1994], 115 [emphasis added]). Since Van Seters attributes the entire section (Exod 12:1–20) to P, his argument could only support McConville’s claim that Passover and Unleavened Bread were united prior to Deuteronomy if Van Seters dated P prior to D, which he does not. Van Seters actually rejects as indefensible the very position that McConville wishes to anchor in his work: “In short, there is no evidence for the great antiquity of the Passover . . .” and, decisively, “The earliest statement on Passover is Deuteronomy” (Life of Moses, 114, 123). In other contexts, too, McConville overlooks essential sections of the scholarly literature that he employs to support his arguments. To support his claim that Passover and the festival of Unleavened Bread were “already united prior to Deuteronomy,” he argues that the explicit identification of Passover as a pilgrimage festival—   , “the sacrifice of the festival of Passover” (Exod 34:25b)—is pre-Deuteronomic (p. 50), despite the widespread scholarly consensus to the contrary (Julius Wellhausen, Prolegomena to the History of Ancient Israel [1878; New York: Meridian, 1957], 85 n. 1; Jörn Halbe, Das Privilegrecht Jahwes Ex 34,10 –26: Gestalt und Wesen, Herkunft und Wirken in vordeuteronomischer Zeit [FRLANT 114; Göttingen: Vandenhoeck & Ruprecht, 1975], 195– 97; Eckart Otto, Das Mazzotfest in Gilgal [BWANT 107; Stuttgart: Kohlhammer, 1975], 177 n. 1, 247). The claim is defended (p. 50 n. 11) with a single reference to a fascinating article by Bernard R. Goldstein and Alan Cooper (“The Festivals of Israel and Judah and the Literary History of the Pentateuch,” JAOS 110 [1990]: 19–31). That article actually compromises McConville’s position. Cooper and Goldstein, in dating Exod 34:18 –26 prior to Deuteronomy, adduce H. L. Ginsberg’s brilliant analysis of the chapter as their single support. The problem is that H. L. Ginsberg maintained exactly the opposite position from the one they attribute to him. He argued that Exodus 34 cannot be pre-Deuteronomic but rather represents a late attempt to read Deuteronomy’s combination of Passover and Unleavened Bread back into a reprise of the Covenant Code, with the late transformation of the festival calendar attributed ex post facto to Sinaitic revelation (Ginsberg, Israelian Heritage, 62– 66). This difficulty in Cooper and Goldstein’s otherwise engaging article, whereby its historical linchpin proves untenable, was demonstrated in my book (Levinson, Deuteronomy, 70 –71). McConville cites both their article and my response without noting the critical issue: the identification of a basic factual error, which is instead recycled without comment as if it constituted evidence. That use of citation to silence, transform, or disregard his literary sources embodies precisely the tendentiousness that McConville denies is a valid way of understanding how the authors of Deuteronomy deployed the same device to advance their aims. 37 See the detailed analysis in Levinson, Deuteronomy, 30 –34, 148 – 49.

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history of religions. Newer religious communities often attribute their distinctive beliefs, laws, or calendars to a prior, “original” revelation, whether by exegetical claim (the rabbinic notion of “oral Torah” as Sinaitic in origin) or by new textual composition (the Samaritan Pentateuch, Jubilees, the Temple Scroll from Qumran).38 The importance of these issues warrants attention to the conclusion of Deuteronomy’s festival calendar, where the textual speaker refers to the transformed Passover as  ‚ “the festival of Unleavened Bread” (Deut 16:16). That description serves for McConville as proof that no changes have been introduced into Israel’s calendar of pilgrimage festivals, which here retains its conventional form. Surely, he reasons, the “Deuteronomic legislator as a radical innovator” and a “bold reformer,” would not have hesitated to alter the name of the transformed festival.39 But in thus citing Deut 16:16 as evidence for the traditional form of Deuteronomy’s Passover, McConville does not acknowledge that the whole verse in question represents a chiastic citation of the festival calendar colophon (Exod 23:15–17) taken over from the Covenant Code.40 As Figure 11.1 (see next page) demonstrates, the redeployment of the older colophon in Deut 16:16 is intentional: it provides the continuity with tradition that the new festival calendar lacks. Under Deuteronomy’s new regime, the festival pilgrimage is no longer to the local but to the central sanctuary: “the place that Yahweh shall choose” (Deut 16:16). But the new requirement has the form of the old. The authors of Deuteronomy revise the formula from the Covenant Code that mandates the appearance of the male Israelite at the originally local sanctuary (C) and interpolate the cen38

For a more detailed analysis, with bibliography, see Levinson, Deuteronomy, 41– 43, 46 – 47, 67– 68. On both counts, therefore, McConville’s challenge does not address either the textual analysis or the larger contextualization of the position that he opposes. 39 McConville, “Unification,” 51. 40 Thus, while here rejecting any notion of Deuteronomy’s transformation of tradition, McConville does not provide key evidence concerning the biblical text and does not engage my actual position (Levinson, Deuteronomy, 90 – 93, which provides the basis for the following analysis of Deut 16:16 –17). On the technique of chiastic citation, or Seidel’s Law, see Moshe Seidel, “Parallels between Isaiah and Psalms,” Sinai 38 (1955– 1956): 149–72, 229– 40, 272– 80, 335–55 (at 150); reprinted in idem, iqrei Miqra (Jerusalem: Rav Kook Institute, 1978), 1– 97. Seidel’s claims are often imprecise or doubtful because they are insufficiently controlled by criteria for establishing the direction of dependency. More controlled uses include Shemaryahu Talmon, “The Textual Study of the Bible—A New Outlook,” in Qumran and the History of the Biblical Text (ed. Frank Moore Cross and Shemaryahu Talmon; Cambridge, Mass.: Harvard University Press, 1975), 362– 63; and Pancratius C. Beentjes, “Inverted Quotations in the Bible: A Neglected Stylistic Pattern,” Bib 63 (1982): 506 –23; Marc Z. Brettler, “Jud 1,1–2,10: From Appendix to Prologue,” ZAW 101 (1989): 433–35 (at 434); and Levinson, Deuteronomy, 18 –19.

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tralization formula (C + X). With that interpolation, the Israelite is now required exclusively to make his cultic appearance before Yahweh at the central sanctuary: all festival pilgrimages (to the local sanctuary) thereby become Temple pilgrimages. That transformation abrogates the norm of older law while seeming to be only a restatement of it. Exod 23:15–17

. . .          . . .    . . .    %            A B C

15. A 16. 17.

B C

15. You shall observe the Festival of Unleavened Bread . . . and none shall appear before me empty-handed; 16. And the Festival of Harvest . . . and the Festival of Ingathering. . . . 17. Three times a year shall all your males appear before the Lord Yahweh.

Deut 16:16 –17

                              %         C +X B A

16.

C +X B A

17.

16. Three times a year shall all your males appear before Yahweh your God in the place that he shall choose: on the Festival of Unleavened Bread, on the Festival of Weeks, and on the Festival of Booths. None shall appear before Yahweh empty-handed; 17. each man [shall give], as he is able, according to the blessing that Yahweh your God has bestowed upon you.

FIGURE 11.1 The Literary Relationship of the Festival Calendars in Exod 23 and Deut 16

Deuteronomy demonstrates that the assertion of consistency with tradition, and even the move to honor that tradition by citing its textual resources, need not entail mechanical deference to that tradition. The claim of consistency with the past may equally constitute critical engagement with that past: may even permit the revision, reinterpretation, transformation, or abrogation of the tenets of the past. Nor does that model apply to Deuteronomy alone. The various Second Temple period communities who were

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all heir to the literary legacy of the Hebrew Bible each sought to claim the status of sole legitimate heir by deploying Deuteronomy-like rhetoric. Matthew has Jesus deliver a Sermon on the Mount (Matt 5:1–2), whereas in Luke’s presentation, Jesus must first descend from an unspecified mountain (Luke 6:12–16) before proclaiming a ‘Sermon on the Plain’ (Luke 6:17–49). Matthew’s redactional construction casts Jesus as the Mosaic proclaimer of a new Torah. Here, Jesus establishes a dichotomy between continuity and discontinuity in the history of religions, situating himself firmly on the side of continuity with tradition: Do not think that I have come to abolish the law or the prophets: I have come not to abolish but to fulfill. For truly I tell you, until heaven and earth pass away, not one iota, not one stroke of a letter, will fall from the law until all is accomplished. (Matt 5:17–18; NRSV, with note).

Seeking to portray his form of early Christianity as consistent with Judaism, the author of Matthew presented his Jesus as implementing Torah. In his rhetoric, this Mosaic-prophetic Jesus therefore assiduously complies with the pentateuchal requirement to heed the law by neither adding to nor taking away from it in any way (Deut 4:2; 13:1 [ET 12:32]). Precisely this assertion of consistency with Torah, however, grants Jesus the legitimacy to challenge the authority of Jewish law. In redactional terms, it strategically introduces the series of six antitheses whereby the Matthean Jesus validates his transformation of Torah as itself authoritative Torah (Matt 5:21– 48). If Matthew’s Jesus on the Mount critically engages and reworks the very authoritative tradition whose authority he invokes, Jesus is, from another angle, boldly traditional in just that stance. Nor is he alone in challenging the validity of the pentateuchal “an eye for an eye and a tooth for a tooth” (Matt 5:38; see Exod 21:24; Lev 24:20; Deut 19:21). Rabbinic law equally powerfully rejected talion. It did so not by means of an explicit oppositional formulation but by claiming consistency, by means of exegetical citation, with the very source text whose meaning and content were completely abrogated: “an eye for an eye” means rather “the financial compensation for an eye [shall be paid] for an eye.”41 Here, too, citation 41 See Mekhilta Exodus 21:23–24 in the edition of Jacob Z. Lauterbach, Mekilta deRabbi Ishmael (3 vols.; Philadelphia: Jewish Publication Society, 1933–1935), 3:67. For very clear analyses of this reversal, see Elliot N. Dorff and Arthur Rosett, A Living Tree: The Roots and Growth of Jewish Law (Albany: State University of New York Press, 1988), 145– 84; and Jacob Milgrom, “Lex Talionis and the Rabbis,” Bible Review 12/2 (April 1996): 16, 48; and Isaac Kalimi, “Targumic and Midrashic Exegesis in Contradiction to the Peshat of Biblical Text,” in Biblical Interpretation in Judaism and Christianity (ed. Isaac Kalimi and Peter J. Haas; Library of Hebrew Bible/Old Testament Studies 439; London: T & T Clark, 2006), 13–32 (at 13–18).

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does not entail deference. In citing the tradition, the rabbis abrogate the very tradition that is cited. Citation here is rather transformation: a means of claiming consistency with an older tradition, of denying distance, of authenticating a new halakah by aligning it with the old one. Moreover, there is clear evidence that the rabbis at times were conscious of the ways in which they could depart from the very tradition with which they claimed such strong continuity. Rabbi Yoanan ben Zakkai, the first president of the Sanhedrin after it moved to Yavneh (Jamniah) following the destruction of the Temple (70 C.E.), had already “enumerated instances where the halachah crushes the Scriptural text under heel and overthrows it.”42 The idea that claiming consistency with tradition may actually amount to special pleading should not seem so unusual an idea, whether it is identified as a strategy of the Teacher of Righteousness in the Habakkuk pesher, the Jesus of Matthew’s Gospel, or rabbinic eisegesis of biblical talion. This model of the rhetorical invocation of tradition does not represent, relatively speaking, a late development of the Greco-Roman period. The evidence of the legal corpus of Deuteronomy suggests that this technique, and the problematic of innovation that it points to, already operated in a sophisticated way in preexilic Judah of the late seventh century.

A Hermeneutics of Tradition Fidelity to the text of Deuteronomy requires the recognition that the speaker’s claim of fidelity to tradition cannot be taken at face value, whether one employs either a synchronic or a diachronic methodology. Reading Deuteronomy brings to the fore the dialectical interplay between tradition and innovation, which is to say, between past and present. The lesson of Deuteronomy is that not only “tradition” but also temporality is an interpretive metaphor. It is the Mosaic narrator who, at the very moment he is about to reiterate the Horeb Decalogue, qualifies its original proclamation and thereby challenges both the absolute nature of time and the domination of the past: “Not with our forefathers did Yahweh make this covenant but with us, we—these here today—all of us living. Face to face Yahweh spoke to you ( ) on the mount, from the midst of the fire” (Deut 5:3– 4). The antithesis on the plains of Moab represents a bold denial of the very chronology maintained elsewhere by the same speaker. The Mosaic discourse addresses itself to the new generation that arose while wandering through the wilderness for forty years. The sole purpose of that 42

B. SoÅah 16a; translated, The Babylonian Talmud, vol. 20, Seder Nashim, SoÅah (ed. I. Epstein; London: Soncino, 1936), 84. Milgrom also adduces this citation (“Lex Talionis,” 16). This discussion follows Levinson, Deuteronomy, 15 n. 43.

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wandering was to kill off the entire generation of Israelites who had actually witnessed the original revelation (Deut 5:22) and with whom God had made the original covenant (5:1) but who subsequently rebelled against God (1:35, 39–40; 2:14–16). Moses thus contends, now cutting against the grain of his own presentation of tradition, that the covenant is not past but present. The critical revelation did not take place in the past but takes place . The “today” of the text, like its redefinition of the past, can only be understood in hermeneutical terms. Those party to the covenant live not in the past but in the present. The Mosaic speaker drives the point home emphatically, piling up six successive forms of self-reference, pushing syntax to its limits:        (Deut 5:3). The staccato of apposition works against itself, however. The more the deixis proliferates while attempting to determine Mosaic time and Transjordanian place, the more indeterminate and ambiguous it becomes. The strained syntax pushes out against the temporal and geographical boundaries of the text’s narrative world and becomes a form of direct address to the text’s actual audience, in a very different time and place, as the text’s authors seek to extend membership in the covenant of Moab to their own contemporaries in late-seventh-century Judah. With their commitment to locate revelation and covenant not in past time but in present time, the authors’ conception of the narrative present opens out to the future. It grants every future generation of the text’s readers, with equal contemporaneity as those addressed in the text, the opportunity to enter that covenant. Since revelation is not contingent upon chronology, those with whom God made the covenant are, after all: “us, we—these here today—all of us living” (Deut 5:3; see also 29:13–14). Sustained engagement with scripture and tradition thus demands a diachronically and philologically controlled hermeneutics. Deuteronomy shows that interpretation is not just what late moderns do to the distant text, nor even what long generations of Jewish and Christian interpreters have done to scripture. It is equally what the authors of Deuteronomy did to their sources, both narrative and legal, Israelite and Near Eastern, sacred and secular, as they sought to renew their texts and their traditions. Hermeneutics is not secondary and posterior to the text but essential to it: what the text presupposes and embodies. From this perspective, the act of encountering the text by means of a diachronic exegesis is, in the Kierkegaardian sense, an act of repetition: it is to recover and renew that complex engagement with tradition that characterized the authors of Deuteronomy themselves.43 Hermeneutics unites revelation and interpretation, 43

Søren Kierkegaard, Fear and Trembling; Repetition (trans. Howard V. Hong and Edna H. Hong; Kierkegaard’s Writings 6; Princeton: Princeton University Press, 1983), 131–231.

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text and context, theory and method, scripture and reader, reader and author in the covenant of a renewed, sound theology.44

44 Subsequent to the original publication of this chapter, J. G. McConville published a full-scale commentary in a new series: Deuteronomy (Apollos Old Testament Commentary 5; Leicester: Apollos; Downers Grove, Ill.: InterVarsity Press, 2002). There is much to appreciate in this volume, which is addressed to “preachers, teachers, and students of the Bible” and which is named after Apollos, “the Alexandrian Jewish Christian . . . (Acts 18:24 –25)” (Editors’ Preface, 9). The author goes very far, especially in the context of a conservative tradition, audience, and series, in seeking to do justice to historicalcritical scholarship. He shows the range of positions on dating, textual criticism, and source criticism, while retaining his focus upon a theological exposition of Deuteronomy and its significance. While he maintains the premonarchic origins of Deuteronomy, he also “does not defend Mosaic authorship” (39). The bibliography is quite thorough and up-to-date, including entries up to 2002, the year of publication (p. 497). It is therefore a bit surprising that, in discussing Deuteronomy’s Passover, he cites (p. 297) his critique of my work (“Deuteronomy’s Unification of Passover and Ma ôt: A Response to Bernard M. Levinson,” JBL 119 [2000]: 47–58) but makes no reference to my reply, which was solicited by the Journal’s Editor and published later the same year in the next issue (JBL 119 [2000]: 269– 86). It is also not included in the volume’s Bibliography. That omission aside, McConville is otherwise admirably thorough in his discussion of the secondary literature, including other of my work. A strength of the commentary is the way that McConville does engage in a serious dialogue with alternative viewpoints; in that way, the process of scholarly exchange seems to have had beneficial results. For more detailed reviews of the volume, see Ronald E. Clements, R. W. L. Moberley, and G. J. [sic] McConville, “A Dialogue with Gordon McConville on Deuteronomy,” Scottish Journal of Theology 56 (2003): 508 –31. In discussing McConville’s treatment of the well-known inconsistency between Deut 5:4 and 5:5 (direct promulgation of the Decalogue by God or its mediation by Moses), Moberley sees the solution proposed as “an example of seeking a kind of theological explanation too quickly” (520). He notes that, while the inconsistency is carefully pointed out, the explanation given does not explore whether compositional or redactional issues might be at stake but tends to move in the direction of harmonization. Moberley also encourages some consideration of Jewish perspectives, given the eponym of the commentary series and its theological mandate (518, 522). See also Eckart Otto, review of J. G. McConville, Deuteronomy, ZABR 13 (2007): 418 –20, noting its balanced nature.

12. Is the Covenant Code an Exilic Composition? A Response to John Van Seters Despite questions about its coherence, source-critical attribution, and precise textual delimitation, the Covenant Code has long been viewed as providing an important window into the preexilic history of ancient Israel. It has played a vital role in any reconstruction of Israel’s cultus and sacrificial system, religious calendar, legal and ethical norms, and social structure. The development of the source-critical method could not have taken place without the successive attempts of eighteenth and nineteenth century scholars to compare the laws of the Covenant Code with other biblical legislation and with the narratives of the historical books, so as to determine their relative sequence and priority. The “New Documentary Hypothesis” worked from the conviction that the Covenant Code was pre-Deuteronomic in its fundamental orientation, based upon literary comparison of its altar law (Exod 20:24) with that of Deuteronomy: “Deut. 12 polemisirt gegen den durch Exod. 20,24 sanktionirten Zustand.”1 On that basis, Deuteronomy presupposed the Covenant Code’s prior existence and sought to challenge it: the innovation of centralization responded to a preexisting religious, legal, and literary norm that assumed multiple altar sites as legitimate for the sacrificial worship of Yahweh. Comparison of other laws in the Covenant Code, such as the manumission laws (Exod 21:2–11) and the festival calendar (Exod 23:14–17), with those of Deuteronomy (Deut 15:12–18; 16:1–17) yielded similar results, thereby corroborating the Covenant Code’s literary-historical priority. With the core of the legal corpus of Deuteronomy associated with Josiah’s centralization and purification of the cult (622 B.C.E.), the Covenant Code’s priority to Deuteronomy placed it solidly in the preexilic period. Over the years, of course, there have been a number of questions about the neatness of this fit. Arguments for the Covenant Code’s being extensively coloured by Deuteronomistic language, have frequently been seen as 1 Julius Wellhausen, Die Composition des Hexateuchs und der historischen Bücher des Alten Testaments (3d ed.; Berlin: Georg Reimer, 1899; repr. as 4th ed.; Berlin: Walter de Gruyter, 1963), 203; first published as “Die Composition des Hexateuchs,” Jahrbücher für deutsche Theologie 21 (1876): 392– 450, 531– 602; and 22 (1877): 407– 479.

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evidence for its later reworking at the hands of post-Deuteronomic editors during the exile. The final hands responsible for the creation of the Sinai pericope (Exodus 19–24) and for the inclusion of the Decalogue in that unit have been seen to be Priestly and thus as exilic or postexilic.2 More recently, as part of the flux in contemporary Pentateuchal theory, a number of scholars have sought to invert the standard model by placing the Yahwist after Deuteronomy and the Deuteronomistic History.3 From this revisionist perspective, “the ‘golden age’ of Israel’s literature is no longer the beginning of the monarchy, but the exile.”4 Christoph Levin, in particular, situates the Yahwistic narrative in the exilic or postexilic period.5 He has begun to apply that model to the Covenant Code, which he does not see as an original part of the Yahwistic History. Instead, he sees it as having previously existed independently and as only subsequently inserted into the Sinai pericope.6 On that basis, he accepts that some sections of the Covenant Code are pre-Deuteronomic and might have provided a literary source for Deuteronomy’s laws of asylum and manumission.7 He sharply reverses the consensus view, however, with his claim that the altar law of the Covenant Code (Exod 20:24) mounts a post-Deuteronomic polemic 2 The literature is of course immense; for a fine assessment of the most recent work, see Reinhard G. Kratz, “Der vor- und der nachpriesterschriftliche Hexateuch,” in Abschied vom Jahwisten: Die Komposition des Hexateuch in der jüngsten Diskussion (ed. Jan Christian Gertz, Konrad Schmid, and Markus Witte; BZAW 315; Berlin and New York: de Gruyter, 2002), 295–323. 3 For valuable contextualizations, see Ernest Nicholson, The Pentateuch in the Twentieth Century: The Legacy of Julius Wellhausen (Oxford: Clarendon Press, 1998). See also Jean-Louis Ska, Introduction à la lecture du Pentateuque: Clés pour l’interprétation des cinq premiers livres de la Bible (trans. Frédéric Vermorel; Le livre et le rouleau 5; Brussels: Lessius, 2000), 195–207; ET, with new material added, Introduction to Reading the Pentateuch (trans. Sr. Pascale Dominique [Nau]; Winona Lake, Ind: Eisenbrauns, 2006) 133– 45; and idem, “The Yahwist, a Hero with a Thousand Faces: A Chapter in the History of Modern Exegesis,” in Abschied vom Jahwisten: Die Komposition des Hexateuch in der jüngsten Diskussion (ed. Jan Christian Gertz, Konrad Schmid, and Markus Witte; BZAW 315; Berlin and New York: de Gruyter, 2002), 1–23. 4 Ska, “The Yahwist,” 20 –21. 5 Christoph Levin, Der Jahwist (FRLANT 157; Göttingen: Vandenhoeck & Ruprecht, 1993). 6 “Das Bundesbuch ist nicht Teil des jahwistischen Geschichtswerks gewesen, sondern nachträglich in die Sinaiperikope gelangt.” See Christoph Levin, “Das Deuteronomium und der Jahwist,” in Liebe und Gebot: Studien zum Deuteronomium: Festschrift zum 70. Geburtstag von Lothar Perlitt (ed. Reinhard G. Kratz and Hermann Spieckermann; FRLANT 190; Göttingen: Vandenhoeck & Ruprecht, 2000), 127; repr. in Levin, Fortschreibungen: Gesammelte Studien zum Alten Testament (BZAW 316; Berlin and New York: de Gruyter, 2003), 96 –110. Similarly, earlier, Levin, “Der Dekalog am Sinai,” VT 35 (1985): 180 – 81. 7 Levin, “Das Deuteronomium und der Jahwist,” 132–33.

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against centralization, seeking to relativize Jerusalem’s special status.8 In this view, the altar law finds its home in the exilic or postexilic period and allegedly addresses the social conditions of the Diaspora. For the law that has long been the point of departure for understanding the social world of the Covenant Code, this marks a significant change. More comprehensively, however, than Levin, John Van Seters argues that the Covenant Code is a monument of Diaspora Judaism: that it is an exilic composition without any preexilic content.9 If other scholars have proposed the imprint of the exile upon the Covenant Code, that imprint has been relatively minor and restricted to an overlay or to the stages of its final redaction, while allowing a substantial textual core that is preexilic. Not so for Van Seters, whose claims are maximal. He contends that the Sinai pericope as a whole, including the Covenant Code, belongs to a single compositional layer that represents the coherent work of an exilic author, whom Van Seters identifies as the Yahwist. This distinctive rejection of the original redactional independence of the Covenant Code carries significant implications. Because he retains key components of the conventional model, Levin sees portions of the Covenant Code providing a source for Deuteronomy and therefore as preexilic. The analysis of Van Seters, which rejects redaction, denies that possibility. Far from representing the beginning of Israel’s legal history, therefore, the Covenant Code would represent the conclusion of that history. This Yahwist, who is the author of the Covenant Code, drew freely upon both Deuteronomy and the Holiness Code as literary and legal sources, responding to and adjusting their content to fit the situation of life in Babylonian exile.10 P represents a postexilic revision and supplement of this larger corpus. Given his sustained argument, this discussion of whether there is preexilic law provides an

8 However there is scant evidence “in der exilischen Diaspora” of any dispute about Jerusalem’s status “als einzigem legitimen Heiligtum.” Thereby astutely challenging Levin’s hypothesis, see Hans-Christoph Schmitt, “Das Altargesetz Ex 20,24 –26 und seine redaktionsgeschichtlichen Bezüge,” in “Einen Altar von Erde mache mir . . .”: Festschrift für Diethelm Conrad zu seinem 70. Geburtstag (ed. Johannes F. Diehl, Reinhard Heitzenröder, and Markus Witte; Kleine Arbeiten zum Alten und Neuen Testament 4/5; Waltrop, Germany: Spenner, 2003), 269–282 (at 279). A different attempt to place the altar law in the exilic period is made by Wolfgang Oswald, who claims that, “die Pluralität der Kultorte” would have been self-evident in Judah during the exile (Israel am Gottesberg: Eine Untersuchung zur Literargeschichte der vorderen Sinaiperikope Ex 19– 24 und deren historischen Hintergrund [OBO 159; Freiburg, Switzerland: Universitätsverlag; Göttingen: Vandenhoeck & Ruprecht, 1998], 142– 43). Schmitt correctly points out that there is no evidence to support such a premise (“Das Altargesetz,” 279). 9 John Van Seters, A Law Book for the Diaspora: Revision in the Study of the Covenant Code (Oxford and New York: Oxford University Press, 2003). 10 Van Seters, “The Law of the Hebrew Slave,” ZAW 108 (1996): 546.

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extended analysis of the most forceful rejection of that possibility: A Law Book for the Diaspora, by John Van Seters. Van Seters urges a profound reconfiguration of the existing model for any reconstruction of the history of Israelite religion. Without directly using the term, he calls for and proclaims a Copernican revolution: a fundamental reorientation of epistemology and hermeneutics. Like the series of studies that led up to it, the rhetoric of the book suggests that it is only an arbitrary and entrenched bias of scholarship to view the Covenant Code and its laws as pre-Deuteronomic.11 The author promises to provide the first opportunity for scholars to read the Covenant Code on its own terms and to understand its relation to both Israelite and cuneiform law. The author makes repeated truth claims about his analysis in contrast to prevailing models. Curiously, even where possible connections might be made to the work of other scholars holding ostensibly similar positions, the connections are not made or simply overlooked.12 This repeated claim to possess objectivity, which alleges that the broader scholarly world labors under long-standing epistemological error, merits a serious response. By placing the composition of the Covenant Code in the Babylonian exile, Van Seters makes a substantial argument that there is no preexilic law except for the legal corpus of Deuteronomy, composed scant decades before the exile. Deuteronomy now stands at the beginning of Israel’s legal tradition, not as the point of transition between earlier and later traditions of law.13 Deuteronomy retains its role as the seventh century “Archi11 These earlier studies include John Van Seters, “Cultic Laws in the Covenant Code and their Relationship to Deuteronomy and the Holiness Code,” in Studies in the Book of Exodus: Redaction–Reception–Interpretation (ed. Marc Vervenne; BETL 126; Leuven: Leuven University Press, 1966), 319–21; idem, “The Law of the Hebrew Slave,” 534 –35. 12 None of Christoph Levin’s extensive scholarship appears in Van Seters’s bibliography, despite their shared concern to redefine the corpus of the Yahwist, both narrative and legal, as post-Deuteronomic and therefore exilic. The directly relevant works by Levin include “Der Dekalog am Sinai” (1985); idem, Der Jahwist (1993); and idem, “Das Deuteronomium und der Jahwist” (2000). That omission is especially unfortunate, given Levin’s investigation of the altar law of the Covenant Code, which plays such a key role in Van Seters’s own analysis, as will be discussed below (Levin, “Das Deuteronomium und der Jahwist”; note already idem, Der Jahwist, 432–34). However, the absence of dialogue between the two scholars is mutual. Levin’s analysis of the altar law (“Das Deuteronomium und der Jahwist”) overlooks “Cultic Laws in the Covenant Code” by Van Seters, although it was published in a prominent volume, as well as other pertinent articles (“The Law of the Hebrew Slave”; idem, “The Deuteronomistic Redaction of the Pentateuch: The Case against It,” in Deuteronomy and Deuteronomic Literature: Festschrift C. H. W. Brekelmans [ed. M. Vervenne and J. Lust; BETL 133; Leuven: Leuven University Press, 1997], 301–19). The field would benefit if the two scholars engaged one another’s work. 13 That the argument here is made from literary and legal history only sharpens the point. Unlike the well-known “minimalist” position, from which Van Seters correctly

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medean point” for the dating of Israelite literature;14 but, in the analysis of Van Seters, it now only establishes the pre-Deuteronomic legal and literary vacuum. The Covenant Code no longer serves as a preexilic literary source for Deuteronomy; rather, repositioned into the exile, it belongs to the reception history of Deuteronomy. To begin to do justice to these arguments requires selective focus on several key issues: (1) the author’s hostility to redactional analysis; (2) the claim that correspondences of sequence and content between the Laws of Hammurabi and the Covenant Code point to the latter’s composition in Babylon, during the exile; and (3) the argument that the altar law of the Covenant Code (Exod 20:24) is a postDeuteronomic affirmation of God’s availability to the Judean Diaspora. In making each of these arguments, Van Seters provides lasting contributions to the field in the way that he challenges and rethinks existing models. At the same time, the alternatives that are set in place often seem vulnerable: driven more by theory than by full consideration of relevant textual, linguistic, or scholarly issues.15

distinguishes himself, the author does not deny the existence of a preexilic Israel more broadly (Law Book for the Diaspora, 172; contra Niels Peter Lemche, Early Israel [VTSup 37; Leiden: E. J. Brill, 1985]; idem, The Israelites in History and Tradition [London: SPCK; Louisville, Ky.: Westminster John Knox, 1998]; and Thomas L. Thompson, Early History of the Israelite People: From the Written and Archaeological Sources [SHANE 4; Leiden: E. J. Brill, 1992]). The motivation is not some cultural program or ideology but a revisionist rethinking of conventional scholarly assumptions. This commitment to challenging the intellectual status quo has characterized his contributions from the beginning (Van Seters, Abraham in History and Tradition [New Haven: Yale University Press, 1975]). Further on the minimalist approach, see the valuable study by Marc Brettler, “The Copenhagen School: The Historiographical Issues,” AJS Review 27 (2003): 1–21. 14 See Eckart Otto, “Das Deuteronomium als archimedischer Punkt der Pentateuchkritik: Auf dem Wege zu einer Neubegründung der de Wette’schen Hypothese,” in Deuteronomy and Deuteronomic Literature: Festschrift C. H. W. Brekelmans (ed. Mark Vervenne and Johann Lust; BETL 133; Leuven: University Press and Peeters Press, 1997), 321–39. 15 Considerations of length led to the choice to address key issues of methodology and to provide an extended response to Van Seters’s analysis of the altar law of the Covenant Code, given its importance to the history of scholarship. Similar issues apply in his approach to other laws, such as the manumission law (Exod 21:2– 6, 7–11), which he regards as post-Deuteronomic (“The Law of the Hebrew Slave”; and Law Book for the Diaspora, 118 –22). For a response (with further bibliography), see Bernard M. Levinson, “The Manumission of Hermeneutics: The Slave Laws of the Pentateuch as a Challenge to Contemporary Pentateuchal Theory,” in Congress Volume Leiden 2004 (ed. André Lemaire; VTSup 109; Leiden: E. J. Brill, 2006), 281–324; and “The ‘Effected Object’ in Contractual Legal Language: The Semantics of ‘If You Purchase a Hebrew Slave’ (Exod. xxi 2),” VT 56 (2006): 485–504; repr., ch. 5 infra.

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The Hostility to Redaction and the Model of Authorship Van Seters rejects the very notion that editors played any role in the composition of the Covenant Code. He dismisses redactional analysis as “highly speculative.”16 He stresses how “revolutionary” is his finding that “It is unnecessary to posit any redactors in the whole code!”17 This argument consists of two main claims. The first asserts the coherence of the Covenant Code (Exodus 21–23) as a unified literary composition. The formal and stylistic differences within it do not provide evidence of its having a long compositional history.18 A single author is responsible for the composition of the whole, including: the prologue of the altar law in its narrative setting (Exod 20:22–26); the casuistic laws (21:2–11, 13–14; 18 – 37; 22:1–16 [ET 17]); the participial prohibitions (21:12, 15–17; 22:17–19 [ET 18 –20]); the apodictic commandments (22:20 –26 [ET 21–27]; 23:1–9); the laws concerned with the religious calendar, including fallow year, Sabbath, and festivals (23:10–19); and the hortatory prologue (23:20–33). The second claim is yet bolder: “The whole of the law code, along with its setting in the Sinai pericope, is the work of a single author.”19 The 16

Van Seters, Law Book for the Diaspora, 5. Ibid., 173. 18 Ibid., 21–29. Other scholars, of course, have adopted superficially similar positions based on their rejection of the source-critical method. However, for the coherence of the Covenant Code to be defended by someone with a very deep commitment to source and literary criticism is unprecedented. In contrast, Joe M. Sprinkle rejects the validity of diachronic analysis and employs harmonistic legal exegesis to defend the coherence of the Covenant Code (The Book of the Covenant: A Literary Approach [JSOTSup 174; Sheffield: JSOT Press, 1994]). Such an approach is not convincing. From a different angle, Raymond Westbrook argues for the coherence of the casuistic portion of the Covenant Code, in effect thereby redefining and limiting its textual compass to Exod 21:1–22:16 (ET 17) (“What is the Covenant Code?” in Theory and Method in Biblical and Cuneiform Law: Revision, Interpolation and Development [ed. Bernard M. Levinson; JSOTSup 181; Sheffield: Sheffield Academic Press, 1994; repr. Sheffield: Sheffield Phoenix, 2006], 15–36). His arguments are based on the theory that there is no legalhistorical development in either cuneiform or biblical law. For challenges to this approach, see Levinson, “The Case for Revision and Interpolation within the Biblical Legal Corpora,” in Theory and Method in Biblical and Cuneiform Law: Revision, Interpolation and Development (ed. Bernard M. Levinson; JSOTSup 181; Sheffield: Sheffield Academic Press, 1994), 37–59; repr., ch. 9 infra; Eckart Otto, “Aspects of Legal Reforms and Reformulations in Ancient Cuneiform and Israelite Law,” in Theory and Method in Biblical and Cuneiform Law: Revision, Interpolation and Development (ed. Bernard M. Levinson; JSOTSup 181; Sheffield: Sheffield Academic Press, 1994; repr. Sheffield: Sheffield Phoenix, 2006) 160 – 96; Bernard S. Jackson, “Modeling Biblical Law: The Covenant Code,” Chicago Kent Law Review 70 (1995): 1745–1827); and Van Seters, Law Book for the Diaspora, 38– 43. 19 Van Seters, Law Book for the Diaspora, 45 (emphasis added). 17

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Covenant Code never existed, whether in whole or part, prior to or independent of the Sinai pericope: Without the assumption of the priority or of the Covenant Code’s great antiquity, there is likewise no basis for the code’s original independence from its narrative setting, and this has made it possible to relate the code of laws more closely within the literary work of the exilic Yahwist. All the strained arguments for maintaining its independence can be seen as special pleading for the code’s antiquity. The code is the single unified work of the author J, which he calls “the Book of the Covenant” and which he makes the sole basis of the law given by Yahweh through Moses at Sinai. The scene on the mountain between Moses and the deity leads seamlessly into the opening laws. . . . [T]his framework of the code shows unmistakable dependence upon the Deuteronomic tradition.20

In terms of its literary history, the Sinai pericope thus represents an act of creatio ex nihilo that took place during the Babylonian exile. There never was a Covenant Code prior to the composition of the Sinai pericope; nor was there ever a Sinai pericope separate from the Covenant Code. With the sole exception of the Priestly material, the entire Sinai pericope (Exodus 19 –24) represents the unified and original composition of a single author: Van Seters’s exilic Yahwist.21 To see any prehistory to this material is unjustified: “Once the P supplements have been removed,22 we are left with a text that presents a harmonious narrative sequence throughout. I have attributed this narrative to a single author, J, who is exilic in date and post-D.”23 The Sinai pericope represents a compositional unity, the work of a single author who drew freely upon a range of literary sources, both native (Deuteronomy and the Deuteronomistic History; the Holiness Code) and foreign (the Laws of Hammurabi).

20

Ibid., 172–73. Ibid., 53–54. 22 Van Seters ascribes the following texts to P: Exod 19:1, 12–13a, 20 –25; 20:8 –11; 24:1–2, 9–11, 15b–18a. 23 Law Book for the Diaspora, 53. Remarkably, Van Seters extends this argument to include Exodus 32–34 as well: “The whole of non-P is indeed a unity” (70). He thereby rejects the classical position that the so-called “cultic Decalogue” (Exod 34:11–27) is ancient and Yahwistic, in contrast to the Elohist’s “ethical Decalogue” (Exodus 20). See his “Is There Evidence of a Dtr Redaction in the Sinai Pericope (Exodus 19–24, 32– 34)?,” in Those Elusive Deuteronomists: The Phenomenon of Pan-Deuteronomism (ed. Linda S. Schearing and Steven L. McKenzie; JSOTSup 268; Sheffield: Sheffield Academic Press, 1999), 160 –70. Similarly, he takes issue with recent work that regards Exodus 34 as an exilic revision of the Covenant Code and as therefore not on the same literary level with it. See his Law Book for the Diaspora, 69–70, rejecting Erhard Blum, “Das sog. ‘Privilegrecht’ in Exodus 34,11–26: Ein Fixpunkt der Komposition des Exodusbuches?” in Studies in the Book of Exodus: Redaction–Reception–Interpretation (ed. Marc Vervenne; BETL 126; Leuven: Leuven University Press, 1996), 347– 66. 21

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Ironically, in order to defend his claim that the Sinai pericope represents the unified composition of an exilic Yahwist, Van Seters must deny the existence of the Covenant Code altogether as conventionally understood. As a discrete compositional unit, the Covenant Code has now been dissolved, since the formal criteria that define and delimit it no longer carry literary-critical or historical-critical significance. Although Van Seters continues to employ the conventional term, what he means by it is entirely different than what most scholars understand. The Covenant Code is now a section marker within the larger unit of the Sinai pericope, to which it has been subsumed. Many of Van Seters’s criticisms of scholarly assumptions about the redactional history of the Covenant Code are compelling. The way he has worked through the history of scholarship to challenge entrenched ways of approaching the text is engaging. Particularly impressive is his rejection of any simple one-to-one correlation between particular legal or literary form and a reconstructed social or historical setting that is claimed as its Sitz im Leben, an approach that inevitably, then, requires the hypothesis of an editorial process for the literary integration of the various laws with their separate histories.24 Rarely have the assumptions underlying this approach been so systematically thought-through and challenged. At the same time, the alternative model that is advanced is defended with arguments that, at key points, go beyond the evidence or overlook complicating material. Van Seters does not see himself as simply engaging in standard scholarly debate concerning the reconstructions of the compositional history of the Covenant Code as propounded by individual scholars like Albrecht Alt (1934, ET 1966),25 Martin Noth (1959),26 Brevard S. Childs (1974),27 Eckart Otto (1988; 1993; 1994),28 Ludger Schwienhorst-

24

Van Seters, Law Book for the Diaspora, 9–29. Albrecht Alt, Die Ursprünge des israelitischen Rechts (Leipzig: S. Hirzel, 1934); repr., idem, Kleine Schriften zur Geschichte des Volkes Israel (Munich: Beck, 1953) 1: 278 –332; ET, “The Origins of Israelite Law,” in idem, Essays on Old Testament History and Religion (trans. R. A. Wilson; Oxford: Basil Blackwell, 1966), 79–132. 26 Martin Noth, Das zweite Buch Moses: Exodus [1959] (4th ed.; ATD 5; Göttingen: Vandenhoeck & Ruprecht, 1968); ET, Exodus (trans. J. S. Bowden; OTL; Philadelphia: Westminster, 1962). 27 Brevard S. Childs, The Book of Exodus: A Critical, Theological Commentary (OTL; Philadelphia: Westminster Press, 1974). 28 Eckart Otto, Wandel der Rechtsbegründungen in der Gesellschaftsgeschichte des antiken Israel: Eine Rechtsgeschichte des ‘Bundesbuches’ Ex XX 22–XXIII 13 (StudBib 3; Leiden: E. J. Brill, 1988); idem, “Town and Rural Countryside in Ancient Israelite Law: Reception and Redaction in Cuneiform and Israelite Law,” JSOT 57 (1993): 3–22; and idem, “Aspects of Legal Reforms and Reformulations in Ancient Cuneiform and Israelite Law,” in Theory and Mdethod in Biblical and Cuneiform Law: Revision, Inter25

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Schönberger (1990),29 Yuichi Osumi (1991),30 and Frank Crüsemann (1992, ET 1996),31 to name only a few of those engaged. Rather, he maintains that the very concept of redaction is inappropriate to both the Covenant Code and to the Sinai pericope. It represents a long-standing epistemological error that requires correction, just as the assumption of Deuteronomy’s priority to the Covenant Code is another arbitrary prejudice. Van Seters argues that his approach frees scholarship from anachronistic methodological assumptions. Given the epistemological certainty attached to this claim, it is important to investigate whether viewing the Sinai pericope as a unified, postDeuteronomic composition cogently accounts for the texts in question. Does the model, in other words, explain the text? Neither the argument for the synchronic coherence of the Sinai pericope nor that for the priority of Deuteronomy to the composition of the Sinai pericope can be defended in the light of the textual details. In both arguments, passages that offer important countervailing evidence need to be brought into the discussion, as does relevant comparative scholarship on the nature of textual composition in the ancient Near East. In this section, I shall attempt to show how the textual and comparative evidence requires an immanent model of redaction (one that differs from the form-critical model that Van Seters rejects). Attention to the text does not permit the Sinai pericope to be read as the cohesive product of a single, post-Deuteronomic author. Van Seters’s argument for the synchronic coherence of the Sinai pericope as the unified composition of the Yahwist presupposes a complex reconstruction of literary history. 1. “[T]he Deuteronomistic accounts of the Horeb events in Deut 4 –5” provide the earliest account of the theophany, presenting the Decalogue as divine revelation.32 In this original conception of the theophany, the Decalogue represents the direct address of Yahweh to the entire nation. 2. “The exilic author J has simply made use of ” that prior account in composing the Sinai pericope of Exodus 19 –24.33 Nonetheless, the Yahwist polation and Development (ed. Bernard M. Levinson; JSOTSup 181; Sheffield: Sheffield Academic Press, 1994; repr., Sheffield: Sheffield Phoenix, 2006), 160 –196. 29 Ludger Schwienhorst-Schönberger, Das Bundesbuch (Ex 20,22–23,33): Studien zu seiner Entstehung und Theologie (BZAW 188; Berlin: Walter de Gruyter, 1990). 30 Yuichi Osumi, Die Kompositionsgeschichte des Bundesbuches Exodus 20,22b– 23,33 (OBO 105; Freiburg, Switzerland: Universitätsverlag; Göttingen: Vandenhoeck & Ruprecht, 1991). 31 Frank Crüsemann, Die Tora: Theologie und Sozialgeschichte des alttestamentlichen Gesetzes (Munich: Chr. Kaiser, 1992); ET, The Torah: Theology and Social History of Old Testament Law (Minneapolis, Minn.: Fortress, 1996). 32 Van Seters, Law Book for the Diaspora, 54. 33 Ibid.

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introduces a series of changes into the earlier model. The most important of these is: “In J there is no Decalogue spoken directly to the people.”34 The Yahwist emphasizes and promotes the mediating role of Moses. The Yahwist’s Sinai pericope, indeed, does not include a Decalogue; instead, the Covenant Code, alone, represents the Yahwist’s conception of the content of the theophany, which is originally communicated directly to Moses upon Sinai and which Moses thereafter mediates to the people. The Sinaitic covenant is concluded solely on the basis of the Covenant Code. 3. In composing the Covenant Code, the Yahwist drew not only upon Deuteronomy and the Deuteronomistic History but also upon the Holiness Code (Leviticus 17–26) at multiple points, such as the manumission laws.35 4. The Yahwist’s distinctive notion of the Mosaic mediation of revelation (in the Sinai pericope) triggers subsequent Yahwistic glossing and correction of the Horeb narrative. Thus, the insistence by Moses that he stood between Israel and Yahweh to mediate the Decalogue (Deut 5:5)—which contradicts the immediately preceding affirmation of direct divine revelation to the nation as a whole (Deut 5:4)—is one of a series of “other additions to Deuteronomy by J.”36 5. In a final stage, a significant interpolation disrupts the original design of the Yahwist. The Decalogue (Exod 20:1–17), along with related material (19:20 –25), represent a “late P insertion into the text.”37

This reconstruction raises a series of methodological issues. Van Seters sharply rejects the very notion of Deuteronomistic redaction of the Sinai pericope.38 This emphatic denial of redaction in favor of the compositional coherence of the Sinai pericope requires, however, that redaction be retained. It is merely shifted elsewhere, and assigned a different siglum and date. The Yahwistic editing of Horeb replaces the Deuteronomistic redaction of Sinai.39 34

Ibid. Ibid., 86, 88, 94– 95; cf. 162; 172. 36 Ibid., 55. 37 Ibid., 48. 38 Van Seters, “Is There Evidence of a Dtr Redaction”; idem, Law Book for the Diaspora, 21–29, 54, 174; idem, “An Ironic Circle: Wellhausen and the Rise of Redaction Criticism,” ZAW 115 (2003): 487–500. 39 There is another preliminary methodological issue. The premise that the Yahwist draws upon Deuteronomy, the Deuteronomistic History, and the Holiness Code, but undergoes later interpolation by the Priestly source, creates a source-critical sequence of: D, DtrH, H, J, P. The assumption that H precedes P, and that P is the final Pentateuchal redactor, is certainly defensible, per the classical model. But for the past several decades, a number of scholars on independent grounds have proposed that the Holiness School is later than P and edits it. Given the importance of this issue to Van Seters’s reconstruction, one would wish for some acknowledgement that there is a debate concerning it (see David P. Wright, review of John Van Seters, A Law Book for the Diaspora: Revision in the Study of the Covenant Code, JAOS 124 [2004]: 129–31). 35

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Given this reconstruction of literary history, the recovery of the Sinai pericope as the compositionally coherent creation of the Yahwist warrants closer attention. Figure 12.1 shows how Van Seters reconstructs the Sinai pericope. Once the later interpolations attributed by Van Seters to the Priestly source are removed,40 the Yahwist’s coherent composition emerges: Original J verses [later interpolations by P]

Exodus 19

[1] 2–11 [12–13a] 13b–19 [20 –25]

20

[1–17] 18 –26

21–23 24

(entire unit is J) [1–2] 3– 8 [9 –11] 12–15a [15b–18a] 18b FIGURE 12.1 The Yahwist’s Original Sinai Pericope

It is difficult to see how this analysis of the original form of Sinai pericope can be read as a synchronically coherent composition. At multiple points, the reconstruction does not read smoothly and logically on its own terms. There are far too many inconsistencies, repetitions, doublets, and aporia in the narrative.41 Their extent calls into question the viability and intelligibil40

Van Seters, Law Book for the Diaspora, 53. The following sample of the doublets, gaps, or inconsistencies in the reconstructed narrative suggests it cannot easily be read as coherent: (1) The people’s ready, unconditional willingness to heed the covenant (Exod 19:8) makes it difficult to understand why, immediately thereafter, the concern exists to ensure that the people should heed and believe in Moses (19:9). The latter verse does not continue directly from 19:6 – 8 but more likely represents a doublet. (2) Following God’s command to Moses to report to the nation the divine announcement of Israel’s election (19:6), the narrative continues logically with Moses reporting that speech to the nation, as commanded (19:7), securing the people’s unconditional assent and then reporting that acceptance of the terms of national election back to the deity (19:8). In contrast, following the deity’s announcement of a theophany so as to ensure the people’s obedience to Moses (19:9), the continuation is unintelligible. Moses is said to report the people’s words back to God even though the people have not said anything there, and he has not said anything to them of the divine plan to affirm him (19:9). Indeed, the note that Moses reports the speech back to the deity duplicates, but for a single word, the similar note in the previous verse: “Moses reported [] / told [ ] the words of the people to Yahweh” (19:8b/9b). In 19:8, the note logically follows the election formula; in 19:9, it lacks logical antecedent and hangs as a disconnected fragment. At issue in 19:9b seems to be a Wiederaufnahme or editorial doublet, marking the insertion of v. 9a. 41

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ity of the recovered text as compositionally coherent. Even more problematic, Van Seter’s attempt to relegate the Decalogue to a subsidiary role in the composition of the Sinai pericope by ascribing it to the interpolation of a late Priestly editor also breaks down. As soon as one attempts a detailed analysis of the text, it becomes difficult to maintain Van Seters’s model of a Sinai pericope oriented on the Covenant Code alone. Neither the language of the text nor the narrative line required by such a reconstruction support such a claim. In his account: The various laws that are contained in the Decalogue (the “ten words”) are dispersed within the Covenant Code, beginning with a shortened version of the First and Second commandments in 20:23. Thus Moses receives all the laws, both the “words” () and the “commandments” ($), at the same time at Sinai, and these are all in “the Book of the Covenant,” to which the people commit themselves.42

(3) Van Seters seems to read 19:6 – 9 as a unified, coherent, prospective reference to the Sinai reference which is to follow, the goal of which is to affirm Mosaic mediation: “Moses is to play a special role in this process [Yahweh’s covenant with the people] because it is stressed that the words and commands will be mediated through Moses (19:6 – 9)” (Law Book for the Diaspora, 54). It is difficult to see how these verses constitute a single unit. More likely, 19:6 – 8 are one unit, since the people’s asseveration of obedience in v. 8 directly alludes to v. 7. In contrast, v. 9 appears disjointed. The former unit refers to the nation’s election and has v. 6 as antecedent; only v. 9 is prospective and validates Mosaic mediation. The summary by Van Seters, which sees vv. 6 – 9 as integrated and as jointly affirming Mosaic mediation, overlooks these distinctions. (4) If the coherent narrative has Yahweh descend upon the peak of the mountain, with his presence marked by smoke, flame, and thunder, there to hold his colloquy with Moses (19:18), it becomes difficult to understand Yahweh’s assertion, “You have seen for yourselves that I spoke with you from heaven” (20:23). The two loci are mutually exclusive. (5) The location of the people is difficult to understand. If they are to ascend the mountain (19:13b), and assembly at its base is only preparatory (19:17), one might have expected an initial ascent upon the mountain before the frightened people are said to withdraw (20:18). Nor is it clear how, once the people have withdrawn, leaving Moses alone on the mountain, they can nonetheless directly address him, so as to announce their fear (20:19). Moreover, having already withdrawn once (20:18), the reason for the repetition of that information, in nearly verbatim terms (20:21), is unclear. The unit cannot be compositionally coherent. (6) The degree of correspondence between 19:7– 8 and 24:3 (cf. v. 7), in both language and sequence is so close as to go beyond what a single narrative line can easily sustain. It seems much more logical to regard the one as a doublet or imitation of the other: in the one case, affirming the nation’s election by God; in the other, affirming the Decalogue as the basis of the nation’s covenant with God. 42 Law Book for the Diaspora, 54.

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With the reference to the “words” and the “commandments” received at Sinai, Van Seters clearly has in mind Exod 24:3 (see below). In his reconstruction, that ostensibly coherent content of revelation is then inscribed in “the Book of the Covenant,” which, upon being read to the people, inspires their unconditional assent (Exod 24:7). The model proposed by Van Seters makes it difficult to understand the overall structure of the Sinai pericope. Claiming the originality of the Covenant Code alone, to the exclusion of the Decalogue, makes it very difficult to construe the text. In the Decalogue, God proclaims     , “all these words” (Exod 20:1). That superscription provides the only logical antecedent to the narrator’s account of the covenant ratification ceremony, whereby Moses came and recounted to the people:   $     , “all the words of Yahweh and all the ordinances” (Exod 24:3a).43 Immediately upon hearing them, the people agreed immediately to perform them:       , “all the words that Yahweh has spoken shall we perform” (Exod 24:3b). Moses then hastens to transcribe the divine speech:       , “Moses wrote all the words of Yahweh” (Exod 24:4a). Unaccounted for in these otherwise consistent references to the Decalogue as the “words” of the deity (first proclaimed, then recapitulated, agreed to, and punctiliously transcribed) is the reference to $  , “all the ordinances” (Exod 24:3a). No sooner is the unanticipated term introduced than it immediately disappears: it escapes both the people’s eager oath of obedience (v. 3b) and the Mosaic transcription (v. 4a). Consequently, the present form of v. 3a makes the narrative incoherent. Ostensibly at the peak of their zealous piety, the people become curiously selective in what components of the divine speech they choose to heed. They deign to comply only with the divine “words,” to the exclusion of the “ordinances” that Moses, apparently forgetting his own recitation, fails to transcribe. In the same way that the narrative line does not cohere, the syntax of the verse is equally problematic. The present formulation leaves $   , “and all the 43

Within the Sinai pericope (Exodus 19–24), the only other cases of the plural noun

, referencing divine legal proclamation, are Exod 19:6, 7, 8 (all concerning the election formula, and with the oath of obedience already completed in v. 8); 19:9b (in which a sentence fragment seems to hang in the air; note that v. 19a is not apposite here, since the piel infinitive construct means “when I speak”). On that basis, the superscription to the Decalogue (Exod 20:1)—not some amorphous Decalogue commandments absorbed into the Covenant Code—makes most sense as the direct antecedent of the 24:3a. Moreover, within the Covenant Code itself there is no appropriate self-stylization as the deity’s “word(s).” In Exod 22:9 and 23:7, the noun is singular. In both cases, as at 23:8 (where the noun is plural), the reference is consistently to human, not divine speech. Consequently, the most logical antecedent for 24:3 is the superscription to the Decalogue (20:1), contrary to the reconstruction proposed by Van Seters.

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ordinances,” without explicit authorization as divine speech; the phrase follows and is external to the nomen rectum that defines     as “all the words of Yahweh.” This construction is syntactically anomalous.44 Indeed, there is no other verse in the Hebrew Bible that coordinates the two plural nouns in question to designate, combined in this way, the divine revelation to Moses.45 If the Covenant Code were an original part of the Sinai pericope, to the exclusion of the Decalogue, this disruption of both narrative line and syntax would be unlikely. Classical source criticism provides the most elegant solution to this problem. The syntactically extrinsic term in Exod 24:3a logically has the superscription to the Covenant Code as its antecedent: “These are the ordinances ($) that you shall set before them” (Exod 21:1). Even Van Seters’s own model allows no alternative explanation. Other, potentially “pre-Yahwistic” texts diverge from this verse either in syntax or in the terminology for Mosaically mediated divine law.46 Ac-

44

Since the same genitive cannot normally apply to two coordinated nouns, the second (or sometimes third) nomen “regens must be added with a suffix referring [back] to the nomen rectum” (GKC §128a). Accordingly, expected here would have been “all the words of Yahweh and his ordinances.” That formulation, with the pronominal suffix on the second noun, would correspond to the norm attested in Gen 41:8; Exod 15:4; Judg 8:14; 1 Kgs 8:28; 2 Kgs 2:12 (GKC §128a for this list, adding Exod 15:4). On this basis, I disagree with the contrary suggestion that allows “  ” (“the sons of David and the daughters”) as equally acceptable, if less common (Paul Joüon and Takamitsu Muraoka, A Grammar of Biblical Hebrew [SubBi 14/1–2; 2 vols.; Rome: Pontifical Biblical Institute, 1996], 464 [§129a]). Note the valuable revision: (3d ed.; SubBi 27; 2 vols. in 1; Rome: Pontifical Biblical Institute, 2006), 435 (§129a). The only example cited for that construction, however, is      (Gen 40:1), which Joüon and Muraoka translate as “the cup-bearer and the baker of the king of Egypt.” That exception proves the rule. Despite the English translation provided, the Hebrew construct is objective genitive, not subjective genitive. It employs the masculine singular active participle as nomen regens: “the one who provides drink to the King of Egypt.” To have added a pronominal suffix to “baker” in that context would have created an ambiguity about the intended antecedent. 45 The only other combination of the two nouns, in the plural, refers to the detailed requirements for the construction of the Temple (1 Kgs 6:38, with number variation in Qere/Kethib and the versions). Elsewhere, there is a telling distinction between the terminology used, in the plural, to designate the Mosaic law, as “my statutes,” “my ordinances,” and “my commandments” ( . . . $ . . . ) on the one hand, and the use of the singular  on the other hand, to refer to the Davidic dynastic oracle (1 Kgs 6:12). In Ps 119:43, the nouns once again have different referents: singular  refers to human speech. In Ps 147:19, where three nouns are at issue, the singular  of the Kethib with the Septuagint and Syriac, as in v. 18, seems more original than the plural Qere. 46 While Deut 26:16 also employs the plural definite absolute (“the ordinances”), it does not refer to “the words” but instead to “these statutes.” The verse responds to the

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cordingly, the phrase in Exod 24:3a, which cannot be construed synchronically (whether in terms of narrative or syntax), points to a diachronic issue. The syntactical disturbance suggests that the Sinai pericope has a redactional history. The reference to “the ordinances” is secondary; it reflects an ex post facto attempt to integrate an originally independent Covenant Code into the Sinai pericope as a supplement to the Decalogue.47 Despite two references to Exod 24:3 and a half dozen to the unit (Exod 24:3– 8) in Van Seters’s book, the difficulties raised by the language and syntax of the verse are not discussed.48 Textual specifics such as these call into question the author’s claim to provide a more immanent reading of the Sinai pericope as the unified composition of a post-Deuteronomic author. Just as the Exodus Decalogue still seems to cast its shadow in the reconstructed Sinai pericope, so also in the account of Horeb. According to the model, Deuteronomy 5 marks the beginning of the theophany tradition, which is then revised by the Yahwist in the Sinai pericope, who replaces direct divine revelation with Mosaic mediation of law. That model leaves a particular feature of the Horeb theophany without explanation. Immediately following his report of the Decalogue (Deut 5:6–21 [18]), the Mosaic speaker continues. Speaking in his own words, he begins with a casus pendens that emphasizes the uniqueness of the Decalogue as divine speech:

%                             These words spoke Yahweh to your whole assembly, from the mountain, from the midst of the fire, the cloud, and the thick darkness, in a loud voice; and he added no more. Then he wrote them upon two stone tablets and gave them to me. (Deut 5:22 [19])

Van Seters cites this verse once while comparing several texts concerned with the writing of the law.49 Nowhere discussed is the Mosaic speaker’s same kind of legal-historical issue discussed here (with thanks to Norbert Lohfink for calling my attention to this issue). 47 Following Otto Eissfeldt, Einleitung in das Alte Testament: Entstehungsgeschichte des Alten Testaments (3d ed.; Tübingen: J. C. B. Mohr [Paul Siebeck], 1964), 253; ET, The Old Testament: An Introduction (trans. P. R. Ackroyd; Oxford: Basil Blackwell, 1965), 283; and Bernard M. Levinson, Deuteronomy and the Hermeneutics of Legal Innovation (Oxford and New York: Oxford University Press, 1997), 152–53. 48 The narrative summary blends out the inconsistencies of language and syntax, in effect substituting harmonistic legal exegesis for the original narrative: “After God declares all the laws to Moses, the latter repeats them to the people, who promise to keep them. They are then written in a ‘Book of the Covenant’ . . .” (Van Seters, Law Book for the Diaspora, 54). 49 Law Book for the Diaspora, 63.

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insistence that it was the Decalogue alone that the deity first spoke from the mountain and that was then immediately transcribed. The speaker’s strong denial calls attention to itself, since the necessity for it is unclear: it interrupts what otherwise seems to be a straightforward narrative. The sequence is also striking: the denial of further divine speech is found immediately after the recapitulation of that speech but before specifying the divine writing. What unprompted concern triggers the need to deny further divine speech at just this point? Even if the passage were discussed, it is not clear how Van Seters’s model could account for it. Assuming the priority of Horeb to Sinai makes it impossible to understand the Mosaic speaker’s insistence (Deut 5:22 [19]) that nothing was spoken at Horeb other than the Decalogue.50 More helpful in this context is the approach of Otto Eissfeldt.51 In asserting that the divine speech “did not continue” (Deut 5:22) beyond the Decalogue, this text’s Deuteronomistic author seeks to displace the divine speech of the Covenant Code and leave room for the Mosaic mediation of divine speech in the legal corpus of Deuteronomy. Deuteronomy’s polemic rewrites literary history.52 By circumscribing Sinai and silencing the Covenant Code, the redactors of Deuteronomy sought to clear a textual space for Moab as the authentic—and exclusive— supplement to the original revelation (Deut 28:69). The argument that the entire Sinai pericope represents the unified composition of an exilic Yahwist is also defended on comparative grounds. After mounting strong arguments against Eckart Otto’s analyses of the Covenant Code,53 Van Seters moves to a larger rejection of the role of redaction as relevant for either biblical or cuneiform law: 50

The recognition that the Decalogue in Deuteronomy 5 is Deuteronomistic, and presupposes the legal corpus of Deuteronomy 12–26 (Law Book for the Diaspora, 54 – 55), does not circumvent this narrative issue. The narrator might still have continued to introduce the motif of the need for Mosaic mediation of the legal corpus without having to deny further deny speech. 51 Eissfeldt, Einleitung, 296; ET, 222–23. 52 That Deuteronomy 5 only makes sense as a response to the prior combination of the Decalogue and the Covenant Code is emphasized by Reinhard G. Kratz, “Der literarische Ort des Deuteronomiums,” in Liebe und Gebot: Studien zum Deuteronomium: Festschrift zum 70. Geburtstag von Lothar Perlitt (ed. Reinhard G. Kratz and Hermann Spieckermann; FRLANT 190; Göttingen: Vandenhoeck & Ruprecht, 2000), 115: Die Einkleidung des dtn Gesetzes als Gesetzesproklamation vor dem Eintritt in das Land Kanaan, die dem Dtn auch an anderen Stellen eigen ist, wird so zur Promulgation des Gesetzes vom Sinai/Horeb, sprich: zur Promulgation des Bundesbuchs in seiner in Dtn vorliegenden, revidierten Ausgabe. Dtn 5 hat also den Zweck, das dtn Gesetz mit dem Bundesbuch, der litararischen Vorlage des Dtn, zu identifizieren. Die Identifizierung wäre nicht nötig und ergäbe keinen Sinn, hätte man Ex 19–24 nicht vor Augen. 53 For bibliography, see n. 28.

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III. Debate and Dialogue: The Question of Method There is no need to call the compositional process that led to the formulation of the Hammurabi Code “redactional.” That prejudices the whole point of the comparison. We simply do not know whether there were multiple editions behind the particular code and the extent to which this version “reformed” an earlier one.54

This generalization finds support in a one sentence observation that the redactional approach to cuneiform law was advocated by “the legal historian P. Koschaker, but it is a viewpoint that is hotly disputed in current scholarship.”55 No actual scholarly literature on this matter is adduced. The initial agnosticism seems rapidly to become a normative claim. Just as redactional analysis is suspect in relation to the Laws of Hammurabi so is it for the composition of both the Covenant Code and the Sinai pericope, especially since the cuneiform text provided the Yahwist with a literary prototype for the composition of the Sinai pericope. At the same time, the concept of “redaction” seems to be doubly restricted: first, to a process of legal-historical amendment and revision (as might be found in Roman legal history, which was the model employed by Paul Koschaker [1879– 1951]); and, second, to questionable form-critical assumptions about the nature of textual growth (as Van Seters takes issue with the reconstruction of the Covenant Code by Eckart Otto in particular). However, neither of these theoretical models arose out of cuneiform literature: they are uncontrolled. The double restriction, without considering alternative models and without a direct discussion of the available scholarship, becomes a way to dismiss the very concept of redaction as meaningful for the analysis of either the Covenant Code or cuneiform literature.56 54

Van Seters, Law Book for the Diaspora, 22. Ibid., 180 n. 58. 56 A related article carries these arguments further: the model of redaction is stigmatized as having an illegitimate intellectual pedigree in its application to the Pentateuch (Van Seters, “An Ironic Circle” [see n. 38 above]). He argues that the very model of redaction criticism is self-contradictory: (1) because it was introduced via the back door from New Testament studies, especially Wellhausen’s analysis of the formation of the synoptic tradition, and is therefore not an immanent development; and (2) because “Wellhausen’s redactor [as developed for New Testament scholarship] is being used [by Old Testament scholars] against Wellhausen’s source criticism in an unconscious and ironic contradiction” (499). Van Seters argues that many of the activities attributed to the redactor, when they involve fundamental structuring and ordering of a block of tradition in order to subordinate it to a single, overall ordering principle and ideology, are better described as the work of an author. He objects to “the disappearance of the author who gives way to the redactor.” He advocates, therefore, the vision of the Deuteronomistic Historian as described by Martin Noth (498). Several issues arise here. First, the critique of the model of redaction addresses only the intellectual history of form criticism, while using that restrictive model to dismiss redactional analysis altogether. The evidence of cuneiform literature, where meaningful 55

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In this conceptual slide from the specific to the general, Van Seters overlooks a more immanent model of redaction. The best analogy for the integration of the Covenant Code into the Sinai pericope is the process whereby the legal collection of the Laws of Hammurabi was joined to the literary frame of the prologue and epilogue.57 The valuable monograph by Victor A. Hurowitz demonstrates how the literary frame of the Laws of Hammurabi includes extensive and at times verbatim “borrowings from external texts,” including royal hymns and inscriptions.58 These borrowings were marked by specific editorial devices and formal markers such as internal recapitulations that bracket the borrowed material59 or reflect the sequence of the original text: The lexical identity combined with the significant structural relationship certainly indicates that the author of Codex Hammurabi was not merely drawing on stock phrases which were “in the air,” but was actually citing specific literary compositions such as the royal inscriptions and hymns mentioned or other texts as of yet unknown. As such, he has essentially written a literary pastiche or summary inscription, similar to later Assyrian inscriptions which cannibal-

controls exist, is still not brought into the discussion. Second, it seems unlikely that the history of scholarship permits things to be so neatly organized, with form criticism deriving so uni-directionally from New Testament scholarship. The Religionsgeschichtliche Schule, with its creative work in Tübingen around 1890 included Old and New Testament scholars alike (such as Albert Eichhorn, Hermann Gunkel, Alfred Rahlfs, Ernst Troeltsch, William Wrede, and later, Rudolf Otto and Hugo Greßmann), who influenced one another extensively in both directions. Finally, the use of intellectual history to validate or invalidate the compositional model applied to the Pentateuch exposes Van Seters to a serious vulnerability. The model for authorship that he endorses (498) is that of Martin Noth’s description of the exilic Deuteronomistic historian, who, in the fundamental structuring of his materials, emerges as a Verfasser. Noth emphatically denied, however, the validity of this model for the Pentateuch (as Van Seters concedes). If the history of scholarship is to play a probative role in the argument, then Van Seters has placed himself in a serious “ironic contradiction.” 57 Especially appropriate is Jeffrey H. Tigay’s conclusion in his discussion of empirical models for biblical studies. He reminds us that, “for the biblical critic, the discussion once again underlines the importance of considering the source criticism of ancient Near Eastern compositions without assuming that they represent texts with no prehistory of hands and redactors” (“The Stylistic Criterion of Source Criticism in the Light of Ancient Near Eastern and Postbiblical Literature,” in Empirical Models for Biblical Criticism [ed. Jeffrey H. Tigay; Philadelphia: University of Pennsylvania Press, 1985], 158 [emphasis added]). 58 Victor Avigdor Hurowitz, “Inu Anum rum”: Literary Structures in the NonJuridical Sections of Codex Hammurabi (Occasional Publications of the Samuel Noah Kramer Fund 15; Philadelphia: University Museum, Babylonian Section, 1994), 101. 59 This technique reflects the repetitive resumption or Wiederaufnahme (see Levinson, Deuteronomy and the Hermeneutics of Legal Innovation, 17–20).

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III. Debate and Dialogue: The Question of Method ize60 annalistic accounts, rearranging and presenting events in geographical rather than chronological order.61

This form of authorship breaks down the author-redactor dichotomy from which Van Seters, while mounting an important challenge to European form-critical assumptions, nevertheless himself fails to escape. The textual evidence does not support that binary model of textual composition. As Hurowitz notes: “The compiler of Codex Hammurabi may be characterized62 as a combination scholar, editor, and author.” Indeed, many of the most important works of cuneiform literature similarly represent “redactional compositions,” whereby the author in fact is also an editor.63 That applies particularly to the most famous work of cuneiform literature and the first ever to be published: “The Babylonian Gilgamesh epic did not escape the attentions of a redactor.”64 The composition has a literary history. Its artistic and literary coherence is the accomplishment of a gifted redactor: The standard version uses and adapts some known Sumerian stories as well as others for which written forerunners are not known . . . . But it also contains other material, particularly in the first part of the epic, which may never have existed independently. With considerable skill a single work is created out of diverse elements. The methods used to stitch the pieces together are several.65

The creative genius of Sin-leqi-unninni is that of an author who is also fully an editor: that is evident in the way that the standard edition combines material from the Old Babylonian versions, while reusing older language, rearranging material, dropping or adding lines, etc.66 His most brilliant compositional move was the redactional insertion of tablet XI of 60

Correcting the typo in the original, “canabalize.” Hurowitz, Inu Anum rum, 101. 62 Ibid., 102. This quotation corrects the typo in the original, “chacterized.” 63 Note the fine study by Barry L. Eichler demonstrating the redactional logic involved in the expansion and reuse of legal sequences from the Laws of Eshnunna by the composers of the Laws of Hammurabi; see idem, “Literary Structure in the Laws of Eshnunna,” in Language, Literature and History: Philological and Historical Studies Presented to Erica Reiner (ed. Francesca Rochberg-Halton; AOS 67; New Haven: American Oriental Society, 1987), 71– 84. 64 Andrew George, The Epic of Gilgamesh: The Babylonian Epic Poem and Other Texts in Akkadian and Sumerian (London: Penguin, 1999), xxiv. 65 Stephanie Dalley, Myths from Mesopotamia: Creation, The Flood, Gilgamesh, and Others (Oxford and New York: Oxford University Press, 1989), 46 (emphasis added). 66 Jeffrey H. Tigay, The Evolution of the Gilgamesh Epic (Philadelphia: University of Pennsylvania Press, 1982), 129; idem, “The Evolution of the Pentateuchal Narratives in the Light of the Evolution of the Gilgamesh Epic,” in Empirical Models for Biblical Criticism (ed. Jeffrey H. Tigay; Philadelphia: University of Pennsylvania Press, 1985), 40 – 41. 61

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Gilgamesh, drawn from the Atrahasis Epic, into the Old Babylonian material, to give rise to the standard edition of the Gilgamesh Epic.67 The bracketing technique recalls that employed by the author-editor responsible for the Laws of Hammurabi. The argument that Sinai is synchronically coherent and postDeuteronomic provides, in the end, a coherent explanation neither of Sinai nor of Horeb. Too much of the text is left unaddressed or unexplained. The author-redactor dichotomy that Van Seters employs imposes an anachronistic notion of original authorship upon the literature of antiquity. Such a model reflects European Romanticism more than it does the complexity of textual composition in Israel or the ancient Near East. A more immanent reading of the legal-religious literature of the ancient Near East demands recognition of redaction as an essential strategy of authorship. The Laws of Hammurabi, Van Seters’s own paradigm for the composition of the Covenant Code, confirm the importance of redaction as a compositional technique. The Sinai pericope similarly makes most sense as a redactional composition. An immanent reading of the text suggests that the Covenant Code was secondarily added to the Sinai pericope rather than being composed by a single author simultaneously with it. On that basis, the Covenant Code has a literary history that is both independent of the Sinai pericope and, in at least one point, pre-Deuteronomic.

The Context for the Influence of the Laws of Hammurabi upon the Covenant Code Classical source criticism, since the time of Wellhausen, assumed that the legal collections of the Pentateuch related to the various narrative sources in a neat, one-to-one, correlation. On that basis, even if there were debates 67

Tigay, “The Stylistic Criterion of Source Criticism,” 158– 67. Major compositions of the Second Temple period equally reflect this model of redactional composition. That applies most notably to the Samaritan Pentateuch, whereby its version of the tenth commandment of the Decalogue embeds and conflates material from Deuteronomy 11 and 27, so as to legitimate Gerizim as the sanctuary elected by God (see the valuable study by Tigay, “Conflation as a Redactional Technique,” in Empirical Models for Biblical Criticism [ed. Jeffrey H. Tigay; Philadelphia: University of Pennsylvania Press, 1985], 53– 96, esp. 78– 86). This kind of redactional conflation and re-sequencing is true more broadly for the presentation of the Sinai pericope in the Samaritan Pentateuch (ibid., 68 – 78). One sees the same phenomenon elsewhere as well. One major component of the originality of the Temple Scroll consists in its creative project of redaction: its conflation, expansion, and reordering of a wide range of biblical legal material. See Bernard M. Levinson and Molly M. Zahn, “Revelation Regained: The Hermeneutics of  and  in the Temple Scroll,” DSD 9 (2002): 295–346.

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about the exact attribution of legal texts like the so-called Ritual Decalogue (Exodus 34), the Sinaitic Decalogue (Exodus 20), or the Covenant Code (Exodus 21–23), in effect, all these sources belonged to the monarchic history of preexilic Israel. The Covenant Code would regularly be dated sometime between the tenth to the eighth centuries B.C.E. This picture was complicated by two developments from the beginning of the twentieth century. First, Gattungsgeschichte attempted to move back behind the late dating of the Pentateuchal literary sources, so as to reach the older traditions that ostensibly lay behind these sources and that allegedly provided access to the pre-state period. Second, the discovery in 1901 and prompt publication of “Codex Hammurabi” by Vincent Scheil forced the question of how to explain the analogies in legal form and content between it and the Covenant Code.68 Albrecht Alt’s famous Die Ursprünge des israelitischen Rechts (1934, ET 1966) claimed that the “casuistic” (third person, if-then) legal form reflected a common Near Eastern inheritance that Israel would have acquired in Canaan, during the settlement period.69 Subsequent scholarship by Moshe Greenberg, Shalom M. Paul, and Jacob J. Finkelstein, noting the absence of evidence for that alleged common legal heritage in Canaan, maintained a much closer connection between Mesopotamian legal collections and the Covenant Code.70 Common to all these approaches was the assumption that the similarity between the Covenant Code and the Laws of Hammurabi represents a phenomenon that goes back to the Late Bronze period of the second millennium. It is to the lasting credit of Van Seters that this entire cluster of assumptions is systematically brought to the fore, critically investigated, and exposed as untenable. This section of his book reads less as a conventional review of the research than as an important exercise in intellectual history. 68

Vincent Scheil, “Code des lois (droit privé) de Hammurabi, roi de Babylone, vers l’an 2000 avant Jésus-Christ,” in Délégation en Perse; Mémoires de la mission archéologique de Perse; pub. sous la direction de Jacques Jean Marie de Morgan, délégué général, vol. 4, Textes élamites-sémitiques, 2d series (Paris: E. Leroux, 1902), [11]–162; and plates 3–15. 69 Albrecht Alt, Die Ursprünge des israelitischen Rechts (Leipzig: S. Hirzel, 1934); reprinted in idem, Kleine Schriften zur Geschichte des Volkes Israel (Munich: Beck, 1953) 1: 278 –332; ET, “The Origins of Israelite Law,” in idem, Essays on Old Testament History and Religion (trans. R. A. Wilson; Oxford: Basil Blackwell, 1966), 79–132. 70 Moshe Greenberg, “Some Postulates of Biblical Criminal Law,” in Yehezkel Kaufmann Jubilee Volume (ed. Menahem Haran; Jerusalem: Magnes Press, 1960), 5–28; repr. in idem, Studies in the Bible and Jewish Thought (JPS Scholar of Distinction Series; Philadelphia: Jewish Publication Society, 1995), 25– 41; Shalom M. Paul, Studies in the Book of the Covenant in the Light of Cuneiform and Biblical Law (VTSup 18; Leiden: E. J. Brill, 1970); and Jacob J. Finkelstein, The Ox That Gored (Transactions of the American Philosophical Society 71:2; Philadelphia: American Philosophical Society, 1981).

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It reflects upon the nature of the models that have been taken for granted for nearly the past century regarding both the composition of Covenant Code and its connection to cuneiform legal traditions. More than with any other scholar, rather than simply rehearsing existing ways of thinking about the process of formation of the Covenant Code, he reflects upon the models that have been used to conceptualize that formation: what has been taken for granted and what has not yet been considered. His analysis deserves a brief review here as well as further reinforcement. He demonstrates that there is simply no meaningful way to account for a chain of transmission from second millennium Mesopotamia to first millennium Syro-Palestine. Rather, that impact should be understood as taking place only in the first millennium, during the Iron Age. Critical to this argument is his very systematic exploration of the model of oral tradition or some generalized cultural diffusion of legal forms or topoi as a way of explaining the close connections between the casuistic laws of the Covenant Code and the Laws of Hammurabi. Astutely drawing on the work of Meir Malul,71 Van Seters sets up a clear set of criteria to distinguish the model of general cultural diffusion, on the one hand, and that of direct textual dependence and reuse, on the other. He makes a compelling case that the degree of correspondence between the two texts in terminology, literary form, legal topos, and sequence of laws, is explained most logically in terms of literary dependence and reuse. The correspondences he points to, and some additional ones, are depicted in Figure 12.2 below:72

71

Meir Malul, The Comparative Method in Ancient Near Eastern and Biblical Legal Studies (AOAT 227; Kevelaer: Butzon & Bercker; Neukirchen-Vluyn: Neukirchener Verlag, 1990). 72 This table is a composite. Van Seters provides a valuable table showing correspondences of legal topos and sequence (Law Book for the Diaspora, 96 – 99). David P. Wright expands upon that analysis, claiming connections between the casuistic laws of the Covenant Code and its literary frame, on the one hand, and the Laws of Hammurabi with the prologue and epilogue, on the other (“The Laws of Hammurabi as a Source for the Covenant Collection [Exodus 20:23–23:19],” Maarav 10 [2003]: 11– 87 [at 72]). For the convenience of the reader, I have attempted to provide a modest presentation of the correspondences based on Wright’s work, but restricting the focus to the casuistic section of the Covenant Code (some of the connections in the apodictic material proposed by Wright are more open to discussion). Laws in the Covenant Code that do not exactly follow the sequence of the Laws of Hammurabi, although still close to it, are indicated with an asterisk.

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Exodus

Legal Topos

Laws of Hammurabi §§

1. 21:2–11

Indenture

117, 119 (cf. 118, 175)

2. 21:10 –11

Second wife + support

148 – 49, 178

Intentional death by striking

(206) 207

4. 21:15, 17

Child rebellion

192– 93, 195

5. 21:18 –19

Men fighting, injury, cure 206

6. 21:20 –21

Negligent homicide of member of lower class

208 (cf. 196 –205, 209 –23)

7. 21:22–23

Miscarriage

209 –14

8. 21:23–27

Talion laws, injury to slave 196 –205; 229 – 40

9. 21:28 –32

Goring ox

*3. 21:12–14

*10. 21:33–34

Negligence

250 –52 229 – 40 (cf. 125)

11. 21:37+22:2b–3 (ET 3b– 4) Animal theft

253– 65

12. 22:6 – 8 (ET 7– 9)

“Safekeeping” of animals

265– 66 (cf. 120, 124 –25)

13. 22:9 –12 (ET 10 –13)

Injury and death of animals 266 – 67

14. 22:13–14 (ET 14 –16)

Rented animals

268 –71 (cf. 244 – 49)

FIGURE 12.2 Correspondences between the Covenant Code and the Laws of Hammurabi

The close connection between Laws of Hammurabi and the Covenant Code, which becomes especially evident upon detailed comparison of the goring ox laws in both cases (Laws of Hammurabi §§250 –52; Exod 21:28 –32), cannot be explained in terms of some nebulous concept of general cultural diffusion or oral transmission.73 The correspondence is best explained in terms of literary and textual dependence.74 Such dependence is hard to imagine without the administrative structure, bureaucracy, scribal training, and complexity of society associated with the composition and redaction of a legal collection. That the correspondence makes most sense as a phenomenon of the first millennium rather than the second 73 The explanation of the wide diffusion of the Epic of Gilgamesh in terms of oral diffusion by a hypothetical “musician-poet” attached to trading caravans or hired by a ship’s captain for the entertainment of the crew, stresses the inevitable emergence of “different versions . . . [with] a variety of details” (Dalley, Myths from Mesopotamia, 49). That model of oral diffusion therefore cannot account for the degree of detailed correspondence at issue here. 74 See Finkelstein, The Ox That Gored, 19–20; Malul, Comparative Method, 113– 52; Van Seters, Law Book for the Diaspora, 119–22; and Wright,“Laws of Hammurabi as a Source,” 24 –25, 79.

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creates a new set of intellectual and analytical possibilities. Van Seters is among the first to have seen this issue and to have worked it through so carefully.75 It is very hard to imagine that the older form-critical or traditio-historical models will withstand his thorough critique. He demonstrates the untenability of the attempt to see the Covenant Code as a window into the pre-monarchic history of Israel. By identifying the nostalgic or romantic view of history associated with that attempt, he accomplishes for biblical law the same kind of lasting epistemological clarification that he provided in his book on the patriarchal narratives.76 In part, the proposal for literary transmission in the first millennium was anticipated by Ralf Rothenbusch, whose extensive analysis is overlooked by Van Seters.77 Yet Rothenbusch still clings to the form-critical model. He assumes oral transmission of legal content from Mesopotamia to Israel, from second millennium to first millennium, from Late Bronze to Iron Age (despite the cultural breaks between the two), while nonetheless locating the actual compilation and redaction of these laws in the monarchic period, during the Neo-Assyrian hegemony at the time of Ahaz.78 He believes the transmission to have taken place via Phoenicia during the early monarchy.79 The difficulty is that he still assumes a general SyroCanaanite legal tradition as antecedent to the composition of the Covenant Code while separate from and independent of the specifically literary impact of cuneiform law. This “missing link” represents a postulate necessary to retain the form-critical model (premonarchic origins of the legal tradition from the second millennium; general cultural diffusion) while attempting to maintain the connection between a casuistic legal collection and a royal bureaucracy, the essential nature of which he recognizes.80 In the end, Rothenbusch’s approach attempts to have it both ways: to maintain premonarchic origins (positing a Syro-Palestinian casuistic legal tradition, the existence of which lacks evidence) alongside monarchic

75

Wright, however, clearly seems to have priority in recognizing the full extent of the sequential correspondences. On the history of this research, see Wright, “Laws of Hammurabi as a Source,” 13. Wright made a lengthy preliminary manuscript of this article publicly available at the Annual Meeting of the Society of Biblical Literature (Nashville, November, 2000). 76 Van Seters, Abraham in History and Tradition. 77 Ralf Rothenbusch, Die kasuistische Rechtssammlung im ‘Bundesbuch’ (Ex 21,2– 11.18 –22,16) und ihr literarischer Kontext im Licht altorientalischer Parallelen (AOAT 259; Münster: Ugarit-Verlag, 2000). 78 Ibid., 600. 79 Ibid., 511–13. 80 Ibid., 600.

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composition and compilation.81 The hypothesis, which is based upon two mutually inconsistent models, lacks explanatory power.82 Van Seters should therefore be credited as the first to propose a consistent model for the composition of the Covenant Code under the influence of the Laws of Hammurabi as taking place in the first millennium. Nonetheless, once he cogently clears the ground for this model, he moves very quickly to delimit the possibilities: The belief in a vague transmission of the legal tradition from Mesopotamia to the Levant in the second millennium B.C.E., and hence from the “Canaanites” to the Israelites means that this comparativist method has nothing further to say about the problem of similarity between biblical codes. The simplest, most economic solution to the whole comparativist controversy is to admit that the casuistic laws of the Covenant Code were directly influenced on the literary level during the Babylonian exile. That possibility has simply never been debated.83

Elsewhere, too, after demonstrating a series of close parallels between the ideology of the larger Sinai pericope (Exodus 19 –24) and that of the Laws of Hammurabi, Van Seters maintains: If one accepts the view that some of the casuistic laws are literarily dependent upon the Hammurabi Code, . . . then this literary borrowing took place in Babylonia during the exile. . . . Veneration of Babylonia’s ancient past was at its height at this time [the Neo-Babylonian period] and almost certainly included the great law code.84

Van Seters reasons that, in order to have the best chance of access to a literary exemplar of the Laws of Hammurabi, the author of the Covenant Code must have been: 81 See Wright, “Laws of Hammurabi as a Source,” 12; and idem, Review of John Van Seters, A Law Book for the Diaspora: Revision in the Study of the Covenant Code, JAOS 124 (2004): 129–31. 82 Other scholars, too, recognizing that the literary legal collection in ancient Mesopotamia is invariably associated with an organized state and thus fits poorly into the prestate period of ancient Israel, sometimes seek to have it both ways. Thus Eckart Otto argues that the legal content of the Covenant Code does not depend upon cuneiform law but rather represents part of the common heritage of the rural countryside, adjudicated by the elders at the village gate (“Town and Rural Countryside in Ancient Israelite Law: Reception and Redaction in Cuneiform and Israelite Law,” JSOT 57 [1993]: 3–22). Only the subsequent integration and redaction of these laws into a text bears the imprint of cuneiform law, he maintains, and there in terms of the redactional techniques involved alone, mediated by Jerusalem schools of the eighth century. This attempt to rescue Alt’s hypothesis only points to the incompatibility between Gattungsgeschichte and the literary history of cuneiform law. Van Seters offers an incisive critique of this approach (Law Book for the Diaspora, 110 –12). 83 Van Seters, Law Book for the Diaspora, 45. 84 Ibid., 57.

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an exile in Babylonia during the latter days of the Neo-Babylonian Empire. . . . Therefore, it is not remarkable that he had direct access to some Babylonian law codes and could read and imitate them for his own code. There is clear attestation in surviving copies of the Hammurabi Code and other ancient laws that the ancient Babylonian legal tradition was known in the Neo-Babylonian period, and it is even likely that one of several copies of the original stele was still extant in Babylon during this period.85

The repeated conjecture that the literary transmission of the Laws of Hammurabi to a first millennium Judean author would only occur in Babylon during in the Neo-Babylonian period is open to question.86 Both the chronological delimitation (the Neo-Babylonian period) and the geographical specification (an author living in exile in Babylon) are of course each possible. However, a possible context is not automatically a necessary context. The critical question is whether alternatives are considered before a conclusion is reached. In this case, the author’s assumption of the Covenant Code’s exilic authorship seems to control and delimit the hypothesis concerning the reception and reuse of cuneiform law. The prior assumption preempts due consideration of alternative historical or geographical contexts. A fair examination of the evidence shows that the Neo-Babylonian period is not the most obvious one in which to posit greatest access to a manuscript of the laws. Figure 12.3 below provides a comprehensive and up-to-date analysis of the distribution of the manuscripts of the Laws of Hammurabi, organized by historical period and provenance.87 It confirms 85

Ibid., 173–74. Similarly: “The point at which there would then be the greatest likelihood of direct cultural contact between Mesopotamia and Judah would be the exilic period in Babylonia itself” (ibid., 31). The discussion does not consider the possibility of such contact during the Neo-Assyrian period. Van Seters here seems not to distinguish between various forms of “cultural contact”: whether at the “literary level” or at the “reality level.” In dating the Covenant Code, he thus overlooks the crucial distinction between various means of “historical connection,” which he himself thoughtfully wields against those who deny the literary influence of Laws of Hammurabi upon the Covenant Code (ibid., 30; building on the work of Malul, Comparative Method, 93). The critical issue here is less that of “direct cultural contact” than access to the scribal curriculum, and of defining the context or contexts when Old Babylonian texts were being copied and studied. 87 This table should now provide the most up-to-date list of attested manuscripts of the Laws of Hammurabi available. It was prepared drawing upon the analysis provided by Wright (“Laws of Hammurabi as a Source,” 67–71), while revising his ambiguous “Late Babylonian” to the more standard term for the dialect, Neo-Babylonian. However, Wright bases his analysis exclusively upon Rykle Borger, Babylonisch-Assyrische Lesestücke (2 vols.; 2d ed.; AnOr 54; Rome: Pontifical Biblical Institute, 1979), 1:2–5. Thereby overlooked are five additional manuscripts (u, v, w, x, y) provided in the more recent collation (Martha Roth, Law Collections from Mesopotamia and Asia Minor [2d 86

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that, after the period of its composition (Old Babylonian), the greatest evidence of interest in the Laws of Hammurabi is in the Neo-Assyrian period.88 The degree of interest in the Neo-Assyrian period is more than twice as great as that in the Neo-Babylonian period, based upon manuscript evidence (nineteen, versus eight).89 Indeed, there are nearly as many copies of the Laws extant from the Neo-Assyrian period (nineteen) as from the time of its promulgation (twenty). Period

Copies

OB

20

A, O, S, Y, X, p, q, r, t, u, w, y

Tablets

MB

4

I, V, a; N 5489

MA

4

E, F, G, H

NA

19

D, J, L, N, P, T, b, c, e, f, i, j, k, l, m, n, o, x; and one MS in Lambert 1992

NB

8

B, C, W, Z, s, v; and 2 MSS in Fadhil 1998

Other Stele Fragments K, M, Q, R, U, d, g, h

FIGURE 12.3 Extant Copies of the Laws of Hammurabi

ed.; SBLWAW 6; Atlanta: Scholars Press, 1997], 251–53). Those manuscripts are included here. A number of additional manuscripts have been published since Roth’s collation and are also included in Table 3. They include two Neo-Babylonian manuscripts of the Prologue, discovered a decade ago at Sippar (A. Fadhil, “Der Prolog des Codex Hammurapi in einer Abschrift aus Sippar,” in XXXIVème Rencontre assyriologique internationale, 6 –10 VII 1987 Istanbul: kongreye sunulan bildiriler [Ankara: Türk Tarih Kurumu Basimevi, 1998], 717–29); an additional Neo-Assyrian manuscript (W. G. Lambert, “Addenda et Corrigenda to W. G. Lambert, Cuneiform Tablets of the Kouyounjik Collection of the British Museum, Third Supplement [1992],” in Nouvelles assyriologiques brèves et utilitaires [December 1992]: 4, No. 129); and a Middle Babylonian exercise tablet with a copy of the Laws of Hammurabi §1 (Niek Veldhuis, “Kassite Exercises: Literary and Lexical Extracts,” JCS 52 [2000]: 67– 94 [at 71–72]). Veldhuis permits the correction of manuscript I (MAH 10828) from Old Babylonian (per the original publication) to Middle Babylonian (72; for this reference, I am grateful to Martha T. Roth). For discussion of the Sippar prologue tablets, see Victor Avigdor Hurowitz, “Hammurabi in Mesopotamian Tradition,” in “An Experienced Scribe Who Neglects Nothing”: Ancient Near Eastern Studies in Honor of Jacob Klein (ed. Yitzhak [Yitschak] Sefati et al.; Bethesda, Md.: CDL, 2005), 497–532 (at 502–3). 88 David P. Wright, “Laws of Hammurabi as a Source,” 52. 89 Van Seters notes in passing the existence of Neo-Assyrian tablets but does not compare the degree of manuscript attestation in the Neo-Assyrian or Neo-Babylonian periods; nor is the Neo-Assyrian period considered as an option for the author of the Covenant Code to gain access to the Laws of Hammurabi (Law Book for the Diaspora, 57). In fairness, the statistical issue may reflect less “interest” than simple happenstance: in contrast to the situation for the Neo-Assyrian period, where we have discovered Ashurbanipal’s library, no comparable Neo-Babylonian library has yet been recovered.

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The predominance of the manuscripts of the Laws of Hammurabi in the Neo-Assyrian period creates a possibility never considered by Van Seters: that the literary impact of the Laws of Hammurabi upon the Covenant Code may have taken place under Neo-Assyrian hegemony. Such a context would situate the composition and redaction of the Covenant Code in the preexilic period. Precisely this contextualization, with a very thorough assessment of the evidence, has been proposed by David Wright in an extensive study of the composition of the Covenant Code, which makes a concerted argument for its literary dependence upon the Laws of Hammurabi.90 Despite the contention of Van Seters, it is not clear that “veneration of Babylonia’s ancient past was at its height” during the Neo-Babylonian period.91 Such a claim overlooks the extent to which Old Babylonian texts, often revised, collated, elaborated, and organized into standard editions by Middle Babylonian scholars in the last centuries of the second millennium, functioned as an important part of the scribal curriculum during the NeoAssyrian period.92 King Ashurbanipal’s library, which was far bigger than any other, was the result of a deliberate programme of acquisition and copying. The purpose of this

90 Wright provides the most convincing argument for the composition of the Covenant Code in the latter third of the eighth century in the context of Neo-Assyrian hegemony, with the author using the text of the Laws of Hammurabi as a literary model, while also reworking it to transform the royal speaker of the laws into Yahweh, as an anti-imperial strategy (“Laws of Hammurabi as a Source,” 54). While I find the arguments both for dependence and for historical context compelling, less certain are his arguments in favor of the coherence of the Covenant Code as a unified composition (thus, including both the casuistic and the apodictic material), with the literary imprint of Hammurabi evident throughout. His argument that the reuse of cuneiform literary tradition (in this case, primarily the Laws of Hammurabi) functions as a strategy of cultural subversion against the Neo-Assyrian suzerain thus posits for the Covenant Code the same kind of reception and reuse that has been posited for Deuteronomy, in its reuse of NeoAssyrian loyalty oaths. Taken together, this raises the question of whether two legal texts that are diverse in cultic and social agenda (the Covenant Code and Deuteronomy) could each draw upon cuneiform traditions (the legal collection and the loyalty oath) during the Neo-Assyrian period with a single goal: to wield the expropriated literary model against the hegemony of Neo-Assyrian culture. For discussion and bibliography, see Eckart Otto, “Treueid und Gesetz: Die Ursprünge des Deuteronomiums im Horizont neuassyrischen Vertragsrechts,” ZABR 2 (1996): 1–52; Levinson, Deuteronomy and the Hermeneutics of Legal Innovation, 134, 147; and idem, “Textual Criticism, Assyriology, and the History of Interpretation: Deuteronomy 13:7a as a Test Case in Method,” JBL 120 (2001): 237; repr., ch. 6 infra. 91 Van Seters, Law Book for the Diaspora, 57. 92 For a valuable study of the role of Kassite scholars in the transmission of Old Babylonian material to the first millennium, see Veldhuis, “Kassite Exercises.”

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III. Debate and Dialogue: The Question of Method labour was to provide Ashurbanipal with the best possible expertise to govern in the manner that would please the gods.93

This Neo-Assyrian interest in the literary classics of second millennium Babylon is also evident in the distribution of manuscripts of Gilgamesh. The standard version of the Babylonian epic is known from a total of 73 manuscripts extant: the 35 that have survived from the libraries of King Ashurbanipal at Nineveh, 8 more tablets and fragments from three other Assyrian cities (Ashur, Kalah, and Huzirina), and 30 from Babylonia, especially the cities of Babylon and Uruk.94

Thus, in the context of the first millennium, Gilgamesh is better attested in Neo-Assyrian (43 manuscripts) than in Neo-Babylonian (30 manuscripts). Tablet XI was first discovered and published based on a fragment from Ashurbanipal’s library. In the cases of both Hammurabi and Gilgamesh, therefore, the period never considered by Van Seters provides the most evidence of official interest in commissioning scribes to recopy, preserve, and transmit the literary classics of the second millennium. On other grounds, it is quite plausible that the imprint of the Laws of Hammurabi upon the Covenant Code points to the Neo-Assyrian rather than the Neo-Babylonian period. Of the cuneiform material found in first millennium Canaan, by far the greatest proportion derives from the NeoAssyrian period: sixteen inscriptions, versus one Neo-Babylonian or Late Babylonian, and four from the Persian period.95 The composition of the Covenant Code does not require the Babylonian exile for cultural contact with Babylonian tradition to have been feasible. A Hebrew scribe need not necessarily have been “an exile” to have had access, directly or indirectly, to cuneiform.96 Sargon II made it an important part of his foreign policy to indoctrinate foreigners with Assyrian culture, and established state officials in vassal states: Populations of the four world quarters with strange tongues and incompatible speech, dwellers of mountain and country, . . . whom I had taken as booty at the command of Ashur my lord by the might of my sceptre, I caused to accept a 93

George, The Epic of Gilgamesh, xxiv. Ibid., xxvii. 95 Of the approximately 89 cuneiform inscriptions found in Canaan, 40 date from the second millennium; many of these are lexical texts. Of the first millennium material, 16 are from the Neo-Assyrian period. They include 4 steles, 3 administrative documents, 1 bulla, 1 judicial document, 3 cylinder seals (1 votive), 1 fragment, 2 land sale contracts, and 1 Lamaštu plaque. This analysis is based on Wayne Horowitz, Takayoshi Oshima, and Seth Sanders, “A Bibliographical List of Cuneiform Inscriptions from Canaan, Palestine/Philistia, and the Land of Israel,” JAOS 122 (2002): 753– 66. The reference here to 16 Neo-Assyrian finds is based on the actual count; contrast the authors’ “roughly fifteen” (ibid., 754). 96 Pace Van Seters, Law Book for the Diaspora, 173. 94

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single voice, and I caused native Assyrians who are all expert in all kinds of knowledge to dwell among them, and I sent overseers and officers with instructions to teach them to assimilate (?) and to respect god and king.97

This desire for acculturation was reciprocal. Israelite charioteers from Samaria worked willingly for Sargon II, and many young men in search of fame and fortune came from Nubia, Palestine, Ionia, Urartu, and Elam as specialist mercenaries and returned home having gained prestige.98

A scribal school was established by the Neo-Assyrian empire in SyroPalestine, at Huzirina, not far from Harran; Harran itself was the most important city of the Assyrian northwest, and was the city where the royal court was transferred after Nineveh and Kalhu were threatened by the Medes, Cimmerians, and Babylonians.99 The penetration of the NeoAssyrian vassal treaty into the Syro-Palestine realm is evident of course in the Aramaic treaties at Sefire. The ability of Syro-Palestinian scribes to work in cuneiform is especially evident, of course, in the eighth century bilingual inscription from Tell Fekherye in north-east Syria, with NeoAssyrian on the front and Aramaic on the back.100 Cuneiform letters found in northern Syria, dating to ca. 840 B.C.E., point to a “cuneiform tradition (maintained in Hamath by scribes trained in Anah).”101 Such evidence makes plausible the existence of trained scribes in Syro-Palestine who could work with cuneiform documents during the Neo-Assyrian period.

97

Stephanie Dalley, “Occasions and Opportunities: 1. To the Persian Conquest,” in The Legacy of Mesopotamia (ed. Stephanie Dalley et al.; Oxford and New York: Oxford University Press, 1998), 9–33 (at 27). 98 Stephanie Dalley, “Occasions and Opportunities,” 26. See further eadem, “Foreign Chariotry and Cavalry in the Armies of Tiglath-Pileser and Sargon II,” Iraq 47 (1985): 31– 48. 99 Eadem, “Occasions and Opportunities,” 26 –27. 100 Ali Abou-Assaf, Pierre Bordreuil, and Alan R. Millard, La statue de Tell Fekherye et son inscription bilingue assyro-araméenne (Études assyriologiques 7; Paris: Éditions Recherche sur les civilisations, A.D.P.F., 1982); A. Spycket, “La Statue bilingue de Tell Fekheriyé,” RA 79 (1985): 67– 68; and Hélène S. Sader, Les États araméens de Syrie depuis leur fondation jusqu’à leur transformation en provinces assyriennes (Beiruter Texte und Studien 36; Beirut: Orient-Institut der deutschen morgenländischen Gesellschaft; Wiesbaden: Franz Steiner, 1987), 23–29. 101 Simo Parpola, “A Letter from Marduk-Apla-Usur of Anah to Rudamu/Urtamis King of Hamath,” in Hama: fouilles et recherches de la Fondation Carlsberg 1931– 1938; II:2: Les objets de la période dite syro-hittitte (âge du fer) (ed. P. J. Riis and Marie-Louise Buhl; Nationalmuseets Skrifter; Større Beretninger 12; Copenhagen: Fondation Carlsberg, 1990), 264. See also P.-E. Dion, Les Araméens à l’âge du fer: histoire politique et structures socials (Études bibliques 34; Paris: Librairie Lecoffre/J. Gabalda, 1997), 278– 80.

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Van Seters’s argument that the first millennium rather than the second provides the most logical setting for the reception of cuneiform law into ancient Israel is compelling, as is his proposal for the literary influence of the Laws of Hammurabi upon the Covenant Code. However, the options within the first millennium are prematurely restricted to the NeoBabylonian period and the Babylonian Diaspora as the only context for understanding that influence to operate. Moreover, the Covenant Code’s non-mention of the monarch does not provide evidence for its composition as a work of the Babylonian exile, following the destruction of the Judean state, as implied by Van Seters.102 To the contrary, the non-mention of a monarch may simply reflect the literary model after which the casuistic laws of the Covenant Code are patterned, as well as the desire to present Yahweh as the divine monarch who proclaims law.103 By not considering alternatives either of chronology or geography, Van Seters calls into question the objectivity of his analysis, as if the exilic period were not only a possible, but a necessary, historical context. The Neo-Assyrian period seems more likely, based upon the considerations above. Gathering an impressive amount of data, David Wright similarly makes a strong case for the Neo-Assyrian period, in either Judah (during the reigns of Ahaz [ca. 742–727], Hezekiah [ca. 727– 698], or Manasseh [ca. 697– 642] or Israel (prior to its fall, or possibly just afterward).104 Given the available evidence, it does not seem possible to assign a more specific date to the composition of the Covenant Code under the literary influence of cuneiform law.105 102

Law Book for the Diaspora, 174. Although Hammurabi is very powerfully introduced both in the literary frame of the law collection and in the dramatic presentation scene that dominates the stele, he is essentially invisible in the legal corpus itself. Within the 282 laws of Hammurabi, for example, the king (öarrum) is mentioned only once and there only incidentally: as a court of last appeal in the context of adultery. This single mention occurs in a law that lacks analogue in the Covenant Code, where the only consideration of sex and family law is the single law addressing rape of a virgin (Exod 22:15–16 [ET 16 –17]). In the context of Hammurabi, the legal collection represents, literally, his royal voice. It embodies his vision of justice and his divinely-sanctioned rule—even in the context of legal paragraphs where he passes almost entirely without mention. The monarch is similarly present in the Covenant Code as the voice of its promulgator. Distinctively in the case of Israel, the royal speaker of the law collection is its divine king, Yahweh, rather than a mortal king (Levinson, Deuteronomy and the Hermeneutics of Legal Innovation, 138; “ ‘You Must Not Add Anything to What I Command You’,” 12–14; and Wright, “Laws of Hammurabi as a Source,” 40 – 41, 51). The claim by Van Seters—“For J, Moses is the Jewish Hammurabi”—misconstrues this issue (Law Book for the Diaspora, 57). 104 Wright, “Laws of Hammurabi as a Source,” 52–54; cf. 58– 67. 105 It does not seem possible to establish a clear fixed date for the Covenant Code or to connect it to something in the historiographic corpus that would provide an “Archi103

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The Question of Literary Context: An Immanent Reading of the Altar Law? In seeking to overturn Wellhausen and to provide a new model of the history of Israelite religion, Van Seters, like the author of the Prolegomena, begins with the history of sacrifice. His reason for doing so is clear: “The law of the altar has been regarded by many scholars as the most important piece of evidence for establishing the Covenant Code as prior to that of Deuteronomy and its law of centralization in Deut 12.”106 Wellhausen argued that Deuteronomy’s requirement for centralization and purification of the cult was a reaction against the status quo of Israelite religion, in which it was legitimate to worship God at multiple altar sites or sanctuaries throughout the land. The altar law of the Covenant Code is understood to represent that rejected norm of a non-centralized cultus. With this analysis, Wellhausen accounts for the divergence in rhetoric between the Covenant Code’s prescription, in which “eine Vielheit von Altären [gilt] nicht bloß als zulässig, sondern als selbstverständlich” [“a multiplicity of altars is not merely regarded as permissible, but assumed as a matter of course”].107 This situation contrasts sharply with that of Deutemedean point,” as in the use of Josiah’s reform (2 Kgs 22–23) for the dating of Deuteronomy. Accepting Deuteronomy’s revision of key laws of the Covenant Code as a terminus ante quem still leaves open the question of an appropriate terminus post quem. Although it is tempting to propose that Amos (in 2:8a) might already be familiar with the Covenant Code’s requirement for ethical conduct in pledges (Exod 22:24 –26 [ET 25– 27]), that goes beyond the evidence. First, it overlooks the possibility that the prophet may be drawing on ethical guidelines found in wisdom literature (as in Job 22:6; 24:3– 4, 9). Second, Amos’s indictment does not seem a direct violation of the terms of the Covenant Code’s law but, while moving in the semantic field of “pledges,” addresses a different wrongdoing. Finally, Amos does not directly invoke the language of the Covenant Code or allude to it to strengthen his social critique. P.-E. Dion provides the most judicious assessment of whether (per his title): “Le message moral du prophète Amos s’inspirat-il du ‘droit de l’alliance’?” Science et esprit 27 (1975): 5–34). While Dion finds a number of affinities between the ethical demands of Amos and those of the Covenant Code, he finds no evidence of direct citation or dependence. Perhaps more important, he shows that the prophet evinces no concern to anchor his critique in a tradition of written law. On that basis, it would be impossible to use Amos as a means of dating the Covenant Code. 106 Van Seters, Law Book for the Diaspora, 60. Earlier he identifies the altar law and the festival calendar as the first of the “four ‘pillars’ . . . used in earlier scholarship to support the literary precedence of the Covenant Code in relationship to the other law codes of the Pentateuch” (8). He notes there how crucial these laws were to the formation of the New Documentary Hypothesis by Wellhausen. 107 Julius Wellhausen, Prolegomena zur Geschichte Israels (2d ed.; Berlin: Georg Reimer, 1883), 29; repr. from the 6th ed. of 1927, with an index of scriptural citations; (de Gruyter Studienbücher; Berlin and New York: Walter de Gruyter, 2001); ET, Prole-

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ronomy 12: “Das Gesetz wird nicht müde, die Forderung der lokalen Einheit des Gottesdienstes immer und immer zu wiederholen.” [“The Law is never weary of again and again repeating its injunction of local unity of worship.”]108 To disprove the Wellhausenian model, Van Seters must demonstrate that the altar law of the Covenant Code does not refer to multiple altar sites and that it presupposes cultic centralization. But there is another issue as well. In Wellhausen’s analysis of preDeuteronomic narrative and law, the local altar is not simply a place where sacrifice is performed but also a site of divine revelation. The connection between theophany and altar was already recognized by Wellhausen, for whom the altar memorializes a specific site of theophany: “Um so mehr, als die Patriarchen ihre Altäre in der Regel nicht nach eigenem Gutdünken errichten, wo es ihnen beliebt. Sondern eine Theophanie macht sie aufmerksam auf die Heiligkeit des Ortes oder bestätigt dieselbe wenigstens nachträglich.” [“All the more as the altars, as a rule, are not built by the patriarchs according to their own private judgment wheresoever they please; on the contrary, a theophany calls attention to, or at least afterwards confirms, the holiness of the place.”]109 For Van Seters to overturn the standard model means that he must find a way also to deny theophany to the altar law of the Covenant Code. In order to demonstrate the falsity of “the assumption of the Covenant Code’s antiquity and priority to Deuteronomy,” he must show how the altar law may be read as a postDeuteronomic composition.110 He asserts that the conventional “assumption of the Covenant Code’s antiquity” obscures the evidence. His own analysis therefore seeks to recover the original meaning of this text, essentially for the first time in the history of modern biblical scholarship, as a reflection of the exile. In order to give his arguments their full due, let us follow them closely, step-by-step, with particular attention to matters of reading, translation, and exposition. A perhaps unusual degree of detailed attention is warranted in this case, since the distinction between the eisegesis that Van Seters attributes to the consensus and the exegesis that he claims to provide is itself an important part of the argument. Van Seters offers the following translation of the most critical verse of the altar law (Exod 20:24):

gomena to the History of Israel (trans. J. S. Black and A. Menzies; Edinburgh: A. & C. Black, 1885; repr., with a foreword by Douglas A. Knight; Scholars Press Reprints and Translation Series 17; Atlanta: Scholars Press, 1994), 29. 108 Ibid., 32–33; ET, 33. 109 Ibid., 30 –31; ET, 31. 110 Van Seters, Law Book for the Diaspora, 47.

12. Is the Covenant Code an Exilic Composition? 24a

An altar of earth you are to make for me and sacrifice burnt offerings and thank offerings from your sheep or your cattle.

24b

In every place where you invoke my name, I will come to you and bless you.111

309

Now here is the Hebrew for the same verse, accompanied by my own translation:

                             24a

An earthen altar shall you make for me and upon it you shall sacrifice your burnt offerings and your well-being offerings, your sheep and your cattle;

24b

In every place that I proclaim my name, I will come to you and bless you.

With regard to the Hebrew, which does not accompany the author’s translation, let us begin by reviewing Van Seters’s rendering of Exod 20:24a. One need not pay too much attention to the simple omission of the prepositional phrase with the anaphoric pronoun, , “upon it.” More interesting is the use of the partitive construction, “from your sheep or your cattle,” as if the phrase were introduced by %, “from.” The Hebrew, in contrast, employs a double accusative construction, with the direct object marker,  . The shift in construction does not seem to arise naturally, since the first pair of direct objects is accurately rendered using the accusative construction.112 This realignment of syntax may find its explanation in the history of interpretation. The centralization command of Deuteronomy 12, in its requirements for sacrifice at the centralized altar, at key points echoes the language of the altar law of Exodus.113 Strikingly, that law uses the same verb as well as the same two objects of the verb, but employs a partitive rather than accusative construction:    , “And you shall slaughter from your cattle and from your sheep” (Deut 12:21a). There is evidence that, already in antiquity, the legal norm of Deuteron111 Ibid., 61. For ease of reference, I have added the verse numbers, arranged the translation by line and colon, and added emphasis. 112 The Hebrew of the original is not redundant. The second pair of accusatives glosses the first; the phrase could therefore be rendered, “namely, your sheep and your cattle.” 113 The extent of the linguistic overlap is denied by Van Seters (Law Book for the Diaspora, 66), who references my own work (Levinson, Deuteronomy and the Hermeneutics of Legal Innovation, 23–52) but overlooks a larger stream of discussion that includes Norbert Lohfink, “Zur deuteronomischen Zentralisationsformel,” Bib 65 (1984): 297–328; repr. in idem, Studien zum Deuteronomium und zur deuteronomistischen Literatur, II (SBAB 12; Stuttgart: Katholisches Bibelwerk, 1991): 125– 42; and Morton Smith, Palestinian Parties and Politics that Shaped the Old Testament (2d ed.; London: SCM Press, 1987), 140.

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omy’s centralization law affected the translation and understanding of the Exodus altar law even at the level of syntax. The Samaritan Pentateuch and Targum Pseudo-Jonathan both embed Deuteronomy’s partitive construction into their rendering of the list of sacrificial animals in Exod 20:24.114 The translation provided by Van Seters, employing “from,” is identical. In seeking to position the altar law in a post-Deuteronomic context, is it possible that Van Seters inadvertently proceeded as have these harmonistic ancient versions? The commentary on Exod 20:24a is significant. The indefinite accusative ( ) placed in emphatic position before the verb is understood to signify a singular number: It is entirely possible, if not preferable, to interpret this whole law as having reference to a single altar: “An altar of earth you may make . . . but if you make an altar of stones. . . .” It is no more than guesswork to suggest that the law applies to a number of altars.115

No footnote is provided in support of the assumption that the indefinite singular has a restrictive function and means the numerical singular. Given that the construct establishes a class, “an earthen altar,” one might expect greater allowance for the syntax to have a distributive force. The protasis of the manumission law, “If you purchase a Hebrew slave” (Exod 21:2), employs a similar construction, with an indefinite singular direct object of the verb. That construction seeks to bring the entire class of indentured servants under the guidelines of the law. The assumption is that the law would apply to multiple such transactions, with multiple indentured servants falling under consideration. The proposal that the altar law of Exod 20:22–26 intends but a single altar therefore seems motivated less by the plain sense of the text than the desire to read it in a post-centralization (and post-Deuteronomic) context. If the proposal for the number reference intended by the law seems open to question, so does the hypothesis for the most likely geographical and chronological context in which the law might be found. Van Seters suggests that it may not refer to an altar in the land of Canaan, as many assume, but rather to “a temporary, rudimentary altar in the Babylonian Diaspora, corresponding to Ezekiel’s ‘temporary sanctuary’ ( $ ) in Ezek 11:16.”116 There is a difficulty here. The citation in question does not refer to a physical sanctuary at all, provisional or otherwise. Rather, God here offers himself as a “refuge” or sanctuary to those Judeans who were 114 For further discussion, see Levinson, Deuteronomy and the Hermeneutics of Legal Innovation, 36 – 38, 43. For the Targum text, see Ernest G. Clarke, Targum PseudoJonathan of the Pentateuch: Text and Concordance (Hoboken, N.J.: Ktav, 1984), 92. 115 Van Seters, Law Book for the Diaspora, 61 (emphasis added). 116 Ibid., 61.

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deported in 597 B.C.E. and who are taunted by the Jerusalem community. The poignant metaphor has been taken completely out of context. This method of trying to recover the alleged original meaning of the altar law, as an exilic composition that presupposes centralization, comes dangerously close to eisegesis. Turning to the next colon, Van Seters continues to establish the “exilic context” of the altar law.117 His full discussion is significant: The most important argument for the antiquity of the Covenant Code and its priority rests upon the interpretation of verse 24b. The text of this verse is difficult to accept as it stands. The problem is in the first person of the verb   .118 Since the most common meaning of the verb   is “to invoke,” with the deity as object, it makes no sense for the deity to say, “I will invoke my name,” and scholars have been ingenious in trying to invent other, more suitable meanings. It is most usual for humans to invoke a god or the name of a god in the context of worship or prayer. . . . Exod 20:24b would be the only instance where the god invokes his own name. Now within the Covenant Code we do have an instance of the usual idiom in 23:13 (“you are not to invoke [ ] the name of other gods”), which strongly suggests that the verb in 20:24b should be second-person singular. Thus, I would reconstruct the text: “In every place where you invoke my name, I will come to you and bless you.”119

The correction of the Hebrew text, from first to second person, was read back into the author’s original translation of the altar law on the previous page (61), with the verb already changed to second person, but there without a note to indicate the emendation (and without the Hebrew for comparison). In a note that accompanies the excerpt provided above, the author recognizes the congruence of his position with the variant provided by the Syriac version and dismisses objections to the originality of that reading as lacking support (185 n. 48). That argument does not itself investigate the text-critical issue: there is no discussion of any of the versions nor of the Syriac itself, which is referred to in isolation from all other versions, and with no discussion of the nature of the PeshiÅta as a version. The author’s analysis raises a series of methodological difficulties. First, the conceptual possibility of the deity proclaiming his own name is dismissed out of hand with the assertion that “it makes no sense.”120 Sec117

Ibid., 61. This corrects a typo in the Hebrew of the original. 119 Ibid., 62; emphasis in original. 120 A century earlier, in nearly verbatim terms, Arnold B. Ehrlich argued for the same textual emendation and similarly rejected the first person verb: '   %      (“It is inconceivable that the Lord could say, ‘I shall invoke my name’ ” (Mikrâ Ki-Pheschutô: Die Schrift nach ihrem Wortlaut, vol. I, Der Pentateuch [Berlin: M. Poppelauer, 1899; repr. with Prolegomenon by H. M. Orlinsky; 3 vols.; Library of Biblical Studies; New York: Ktav, 1969], 1:175 [Hebrew; my translation; emphasis 118

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ond, only one context is considered feasible for the divine name () to occur as the grammatical object of a verb of speech: “in the context of worship or prayer.” This analysis restricts the conceptual possibilities for understanding the proclamation of the divine name to a single context: that of human, not divine, speech.121 Third, the defence of the emendation of the verb to second person with reference to another law in the Covenant Code, where “the usual idiom” occurs (Exod 23:13), is not accompanied by any discussion. Whether the two texts correspond is doubtful. Nonetheless, that view is widely held, especially by the very scholars whose redaction-historical conclusions, drawn from the alleged correspondence, Van Seters sharply opposes.122 The claim for the equivalence of meaning based merely on the basis of the common verbal stem does not examine the semantic context and cannot be defended.123 And fourth, a global generalization dismisses scholars holding an alternative position. added]). Had this fascinating if eccentric commentary been taken into account by Van Seters, it might have provided additional support for his position. Ehrlich sees the “corrected” version of the altar law as most logical in a Diaspora context, one that he implicitly regards as post-Temple in its religious sensibility and chronology. 121 The same two assumptions govern Jeffrey H. Tigay’s recent study, which makes the generalization: “in the context of sacrifice and altars, it is always the worshipper, not God, who invokes . . . or calls upon . . . God’s name” (“The Presence of God and the Coherence of Exodus 20:22–26,” in Sefer Moshe: The Moshe Weinfeld Jubilee Volume— Studies in the Bible and the Ancient Near East, Qumran, and Post-Biblical Judaism [ed. Chaim Cohen, Avi Hurvitz, and Shalom M. Paul; Winona Lake, Ind.: Eisenbrauns, 2004], 195–211 [at 203]). Inevitably as a result, Tigay reaches the same conclusion that Van Seters does and emends the MT to second person. Tigay reached his conclusions independently (overlooking Arie Toeg, Lawgiving at Sinai: The Course of Development of the Traditions Bearing on the Lawgiving at Sinai within the Pentateuch, with a Special Emphasis on the Emergence of the Literary Complex in Exodus xxi–xxiv [Jerusalem: Magnes Press, 1977], 88 n. 81 [Hebrew]; Van Seters, “Cultic Laws in the Covenant Code”; idem., Law Book for the Diaspora, 62; and Paul Heger, The Three Biblical Altar Laws: Developments in the Sacrificial Cult in Practice and Theology; Political and Economic Background [BZAW 279; Berlin and New York: de Gruyter, 1999], 29–30). Heger reaches the same conclusion: he advocates the emendation of the text and assumes prayer to be the focus of the altar law. In doing so, he ostensibly builds upon Van Seters (“Cultic Laws in the Covenant Code”). However, he uses the latter’s analysis to defend the alleged great antiquity of the altar law, thereby (while apparently unaware of the difference) inverting Van Seters’s actual position. 122 More often, the observation leads to a redaction-historical conclusion that sees the two units (thus, Exod 20:22–23, 24b; and 23:13) as belonging to the same postexilic layer of the Covenant Code. So Otto, Wandel der Rechtsbegründungen, 5– 6; Schwienhorst-Schönberger, Das Bundesbuch, 394– 400; and, most recently, Schmitt, “Das Altargesetz,” 279– 80. 123 The analogy proposed to the second person prohibition against “invoking” the name of other deities (Exod 23:13) is cited in support of the hypothesis. That justification assumes that the latter law refers to prayer. That assumption needs to be defended and is

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313

The conclusions are reached without a systematic analysis of the textcritical, lexicographical, or textual evidence. There is no study of the versional evidence.124 The generalization about the scholars who attempt to make sense of the first person reading as “ingenious” in their inventions of meaning turns out to be quite limited in those taken into account: essentially only Edward Robertson’s article and one by Eckart Otto.125 Overlooked thereby are Johann Jakob Stamm’s important study of the hipil of root  ; relevant lexicography of Eising and Schottroff; the seminal work of S. Dean McBride; and the important exposition of this not self-evident. The verse is less an independent law than a homiletical transition marker; it seems extraneous in its context. Note that in the Decalogue, the prohibition against use of the divine name in the context of oaths (Exod 20:6) immediately precedes the Sabbath law (Exod 20:7–10). Similarly, the command here not to invoke the names of foreign deities (Exod 23:13) immediately follows the Sabbath law of the Covenant Code (Exod 23:12). The association of the two laws in each case implies that the context for invoking the deity is judicial: an oath by the deity (nö ilim), not a simple petitionary prayer. Note the similar construction, using prepositional b- (“by”) rather than an accusative:            , “Neither utter nor swear by the names of their gods; do not serve them or bow down to them” (Josh 23:7). There, the second person hipil of   occurs parallel to the verb for oath-taking; the two verbs are governed by the same complement (ö m + deity). The construction here clearly has the divine name invoked in the context of oaths or vows, rather than in prayer. Moreover, the next word pair contemplates only sacrificial worship, not prayer independent of an altar, as the context for gaining access to the deity. 124 Tigay ostensibly goes further in defending the second person, noting its reflection not only in the Syriac, but also in several targumim and in medieval rabbinic exegesis (“Presence of God,” 203–204). That approach does not constitute a meaningful text-critical analysis. It takes into account only secondary witnesses to the Hebrew text (nothing earlier than the Syriac). There is no discussion of the primary witnesses ( LXX, Samaritan Pentateuch). The recourse to the Syriac and the targumic witnesses curiously fails to consider the extent to which both share a common exegetical tradition (see below). The relevant secondary literature is not considered. As a result, the altar law is assimilated to a tradition of reception and reinterpretation that is presented as the text’s original meaning. The overlooked literature includes Michael P. Weitzman, The Syriac Version of the Old Testament: An Introduction (UCOP 56; Cambridge: Cambridge University Press, 1999); Yeshayahu Maori, “Methodological Criteria for Distinguishing between Variant Vorlage and Exegesis in the PeshiÅta Pentateuch,” in The PeshiÅta as a Translation: Papers Read at the II PeshiÅta Symposium Held at Leiden 19–21 August 1993 (ed. P. B. Dirksen and A. van der Kooij; Monographs of the PeshiÅta Institute Leiden 8; Leiden: E. J. Brill, 1995), 103–19, with discussion 121–27; idem, The PeshiÅta Version of the Pentateuch and Early Jewish Exegesis (Jerusalem: Magnes Press, 1995) (Hebrew); idem, “The Relationship between the PeshiÅta Pentateuch and the Pentateuchal Targums,” in Targum Studies, II: Targum and PeshiÅta (ed. Paul V. M. Flesher; South Florida Studies in the History of Judaism 165; Atlanta, Ga.: Scholars Press), 57–73. 125 Edward Robertson, “The Altar of Earth (Exodus xx, 24 –26),” JJS 1 (1948/1949): 12–21; and Otto, “Aspects of Legal Reforms and Reformulations in Ancient Cuneiform and Israelite Law.”

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text by Tryggve Mettinger.126 An entire stream of scholarly discussion on the altar law, its semantics, and its connections to the larger phenomenology of theophany in ancient Israel, does not come into play and is not cited in the book’s bibliography.127 The author’s preference for “the more common” construction, with the divine name as object rather than as subject of speech, and with the speech thereby defined as human prayer, would, in most text-critical circles, immediately raise a red-flag: it points to the phenomenon of leveling. When a distinctive use is assimilated to the more familiar one, the rule of lectio difficilior praeferenda normally applies. In this case, the opposite seems to be the case. The textual correction assumes that the distinctive reading is unintelligible and levels it to a more familiar idiom. Conversely, the process of textual corruption is left unexplained. What triggered the replacement of the “common” and “usual” meaning with such an anomalous first person form, so that, allegedly, “Exod 20:24b would be the only instance where the god invokes his own name”?128 126

Johann Jakob Stamm, “Zum Altargesetz im Bundesbuch,” TZ 1 (1945): 304 –306; H. Eising, “  " zkhar,” ThWAT II (1977): cols. 571– 93; ET, TDOT, IV (1980): 64– 82; Willy Schottroff, ‘Gedenken’ im Alten Orient und im Alten Testament (2d ed.; WMANT 15; Neukirchen-Vluyn: Neukirchener Verlag, 1967), 245–51; S. Dean McBride, “The Deuteronomic Name Theology” (Ph.D. diss.; Harvard University, 1969); Tryggve N. D. Mettinger, The Dethronement of Sabaoth: Studies in the Shem and Kabod Theologies (trans. Frederick H. Cryer; ConBOT 18; Lund: CWK Gleerup, 1982), 123–25. 127 Van Seters (Law Book for the Diaspora, 62– 63) rules out the relevance of one of the texts discussed by Stamm (“Zum Altargesetz im Bundesbuch”): the theophany tradition preserved in Gen 28:10 –22. This amounts to a circular argument. The claim is made (without engaging the relevant lexicographic literature) that it is illogical for the deity to “proclaim” his own name in a theophany because   in the hipil cannot have that meaning; therefore the altar law cannot refer to theophany and there is no analogy with the other contexts where the deity reveals himself in the context of an altar! Stamm’s proposal to translate   in the hipil in this context as kundmachen [“to proclaim”; cf. “bring to remembrance”] is compelling. 128 As noted in the incisive challenge to the earlier formulation (Van Seters, “Cultic Laws in the Covenant Code”) by Ska, Introduction à la lecture du Pentateuque, 268– 69; ET Introduction to Reading the Pentateuch, 187 n. 6. One such explanation had been proposed by Toeg, who also emends the verb to the second person. He thought that the first person form might reflect an early “nomistic” attempt to overcome the inconsistency between the altar law and the “dominant law (characterized by cultic centralization)” (Lawgiving at Sinai, 88 n. 89; Hebrew; my translation). The first person would then represent an accommodation to the Deuteronomic election formula, with its notion of Yahweh selecting the central sanctuary. Tigay independently offers a similar proposal (“Presence of God,” 204 n. 29; 211 n. 52). This solution is not convincing. Given the strong connection between the words  (“place”) and  (“altar”) in the context of this law, even the hypothetical formulation, “In/at any place that you proclaim My name,” would still carry a cultic meaning (see further, below). The phrase would thereby denote plurality of altars and still conflict with the legal norm of centralization.

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This approach permits Van Seters to argue that the focus of v. 24b is prayer, not sacrifice. The deity’s name is invoked in prayer by a human petitioner. It follows that the reference at the beginning of the colon to “In every place” refers to the multiple locations from which Judeans, exiled in the Diaspora, may pray toward the deity for succor: Since this activity of invoking the name of the deity is not necessarily bound to the existence of an altar, the suggested plurality of places in verse 24b cannot be used to argue for a plurality of altars. It is better to interpret verse 24b as an act of worship apart from the sacrificial cult. The deity declares that his blessing is not restricted to the reception of sacrifices at the one altar.129

With this reading, the first half of the altar law (v. 24a) and the second half (v. 24b) are shorn apart. The focus of the first colon is sacrifice upon the [single] altar; that of the second colon, the accessibility of God in prayer, from multiple locations, completely independent of the sacrificial cultus. Without so much as an adversative waw or other conjunction to mark the contrast, the law’s initial premise is undermined and rejected by its own continuation. Under normal circumstances, were two so incompatible positions to be found within the same verse, one might believe it to have suffered an editorial intervention. Here, the disjuncture is essential to the argument, for only so does it allow the law to be read, in effect, as a text that breathes the air of Second Temple Judaism. Once this is accomplished, the altar functions similarly to the one memorialized in the late exilic insertion into Solomon’s Temple Prayer (1 Kgs 8:46 –53): It does not restrict worship to that place but allows for the possibility of invoking the deity and receiving a divine blessing everywhere, especially in the Diaspora. . . . It . . . envisages those in exile praying to the deity and receiving his mercy without the benefit of altar or sacrifice. The law in Exod 20:24 –26, especially verse 24b, may be seen as going beyond the specific act of repentance in a foreign land [envisioned in 1 Kgs 8:46 –53] to invoking the deity in worship in a more general way and receiving his blessing. 130

In this tour de force reading, the Exodus altar law gives birth to Second Temple Judaism: it establishes prayer rather than sacrifice as the basis of the community’s relation to God! Retroverted as Van Seters proposes, Exod 20:24b offers a manifesto for the universal availability of God in prayer throughout the Diaspora. In fact, the colon launches a remarkable anti-altar polemic that is inconsistent in language and ideology with the unit in which it is found (Exod 20:22–26), where the focus remains consistently upon the importance of the sacrificial worship that takes place at the

129 130

Van Seters, Law Book for the Diaspora, 62. Ibid., 67 (bracketed clarification added).

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altar. Figure 12.4 illustrates Van Seters’s reading of the altar law (and incorporates his emendation of the verb): Verse

Key Text per Van Seters

20:24a

      An earthen altar shall you make for me and upon it you shall sacrifice

20:24b 20:25

       

Altar specific: sacrifice

In every place that you proclaim my name

Prayer, not sacrifice, as condition for divine relation

     

Altar specific: construction

If you make for me an altar of stones 20:26

Law’s Focus and Content

     You shall not go up by steps to my altar

Altar specific: respectful demeanor

FIGURE 12.4 Van Seters’s Reading of the Altar Law (Exod 20:24)

The argument that   , “in every place,” refers to the dispersal of the Judean population during the Babylonian exile, and the concomitant claim that the deity’s name is invoked in prayer, create a sharp disjunction between v. 24b (with its focus upon prayer) and v. 24a (which requires construction of an altar for sacrificial worship). Were such a blatant inconsistency found in any other context, most biblical scholars would immediately identify this as an editorial interpolation. In fact, an entire stream of scholarship has long done just that: viewing v. 24b as Deuteronomistic and therefore eliminating it as “ein literarischer Zusatz.”131 However, Van Seters permits no editors to play a role in the composition 131

Levin, “Das Deuteronomium und der Jahwist,” 124. Diethelm Conrad’s study remains influential in rejecting Exod 20:24b as secondary (Studien zum Altargesetz Ex 20:24 –26: Inaugural-Dissertation [Marburg: H. Kombächer, 1968]). It provides a point of departure for both Levin (124 n. 18) and Schmitt (“Das Altargesetz,” 269; the article appears in the Festschrift for Conrad). The methodological assumptions of Conrad’s approach are problematic. He simply assumes in his preface that second person singular apodictic laws are directed against foreign cults. That presupposition, although nowhere justified on the basis of evidence, nonetheless drives his subsequent literary criticism. Those sections of Exod 20:24 –26 that fail to conform are dismissed as secondary accretions to the reconstructed original law that, formulated in the second person, constituted a polemic against foreign cults. The logic is water-tight—and circular. Conrad overlooks the evidence that the close literary connection assumed in Exod 20:24 among (1) altarbuilding, (2) theophany, and (3) divine beneficence has parallels elsewhere in the Bible (see Gen 12:7– 8 and 1 Kgs 3:4 –5). Indeed, the connection between a theophany and the divine’s proclaiming his name in a cultic context was a convention within Israel and the ancient Near East (Mettinger, Dethronement of Sabaoth, 125–27). The question of theophany receives further attention later in this section.

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of the Covenant Code. Ironically, however, he succeeds in accomplishing the same results by less direct means. Verse 24b has in effect been completely severed from the literary unit and the cultural world of the altar law. It no longer deals with sacrifice. While denying editorial activity in the composition of the text, it becomes clear that such activity takes place now at another level, as suggested by the “text-critical” emendation of the verb to second person, the claims about the meaning of the indefinite singular, the exposition of the kind of altar intended, etc. The adjustments of the altar law’s number, grammar, syntax, and wording amount to de facto editorial reworking of the text, which accommodate it to a set of assumptions about what it must mean and say. It seems impossible to position the Exodus altar law as a post-Deuteronomic composition of the exile without eisegesis. At a number of points, potential controls are not brought to bear even where they would seem relevant and called for. Even apart from the question of the textual emendation, other aspects of the wording of Exod 20:24b provide information that could be helpful. Van Seters construes the reference to   , “in every place,” as a neutral term that designates the multiple locations from which the dispersed Judean population, during the exile, might pray to God for support. While the noun can indeed have that kind of neutral meaning (as in Gen 20:13; Deut 11:24; Josh 1:3), it is surprising that the well-known additional meaning attached to , as specifically a cultic site, seems here to escape Van Seters’s attention. In Hebrew, Phoenician, Aramaic, and Arabic, the word possesses the more technical meaning of a “cult site” or, specifically, an “altar.”132 Since that use is also well attested biblically (note also Deut 12:2), in both narrative and legal contexts, one might have expected it to be considered also in the context of a discussion of Exod 20:24b. From this perspective, independent of the question of the textual emendation, independent criteria are at hand to help determine whether or not this section of the verse presupposes activity at an altar. This linguistic issue is not addressed by Van Seters. This approach creates a serious vulnerability for Van Seters. If the verb of Exod 20:24b remains first person   , “I proclaim,” with the MT, then there can no longer be a question of the divine name being invoked in prayer by someone in the Diaspora. Instead, the divine name would be 132

See HALOT, 2: 627 (§6), “sacred site.” Samuel Rolles Driver adduces Gen 12:6; 28:11; 1 Sam 7:16; Jer 7:12; and Arabic maqm, “sacred place” (Deuteronomy [3d ed.; ICC; Edinburgh: T. & T. Clark, 1902], 139). For valuable comparative evidence from Phoenician and Punic inscriptions, see Richard S. Tomback, A Comparative Semitic Lexicon of the Phoenician and Punic Languages (SBLDS 32; Missoula: Scholars Press, 1978), 195– 96. For inscriptional evidence, see Jacob Hoftijzer and Karel Jongeling, Dictionary of the North-West Semitic Inscriptions (2 vols.; HO 21; Leiden: E. J. Brill, 1995], 2:680), s.v. mqm1 (§1a). Note also Aramaic  .

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proclaimed by the deity himself. That, in turn, would require that the distributive plural formula,   , “in every place,” would refer to the location of the deity, not to the Diaspora location of the one praying to God. In that case, the , “place,” formula would legitimate multiple altar sites as possible locations for theophany; it would thereby not presuppose cultic centralization. The argument that the altar law of the Covenant Code is post-Deuteronomic hangs upon Van Seters’s textual emendation. Without the second person invocation of the divine name, there is neither prayer nor a Diaspora-dating of the altar law. The evidence, both text-critical and semantic, strongly favors the first person verb of MT Exod 20:24b. Once the evidence is adduced, it becomes clear that the deity proclaims his own name in a theophany that takes place in conjunction with sacrificial worship at an altar. The altar law itself emphasizes that a plurality of cult sites are presupposed as legitimate. Philology provides a series of controls that challenge the claims made by Van Seters and lend credence to the Wellhausenian model that he rejects. To defend this position, I shall reverse Van Seters’s procedure and turn first to the textual criticism and then to the intelligibility of the MT. The primary textual witnesses uniformly attest the first person verb as original: MT

                             24a

24b

24 a

24b

An earthen altar shall you make for me and upon it shall you sacrifice your burnt offerings and your well-being offerings, your sheep and your cattle; In every place that I proclaim my name I will come to you and bless you.133

LXX 24a

24b 24a

24b

qusiasthvrion ejk gh'" poihvsetev moi, kai; quvsete ejpÆ aujtou' ta; oJlokautwvmata kai; ta; swthvria uJmw'n, ta; provbata kai; tou;" movscou" uJmw'n ejn panti; tovpw/, ou| a]n ejponomavsw to; o[nomav mou ejkei', kai; h{xw pro;" se; kai; eujloghvsw se. . . . and upon it you shall sacrifice your holocausts and your whole offerings, your sheep and your cattle, in every place where I proclaim my name there, and I will come to you and bless you.134 Continued on next page

12. Is the Covenant Code an Exilic Composition?

FIGURE

319

12.5—Continued

Samaritan Pentateuch 135

   

. . . in the place where I proclaimed [my name] . . . Targum Onqelos

       %       

In every place where I cause My Shekinah to dwell, there will I send My blessing to you and I shall bless you.136 Targum Pseudo-Jonathan

                  %

In every place where I rest My Shekinah and you worship before me, there will I send upon you My blessing and I shall bless you.137 FIGURE 12.5 The Textual Witnesses to Exodus 20:24b Reflecting the Verb in First Person 133134135136137

The first person is consistently witnessed by the Septuagint, the Samaritan Pentateuch, Onqelos, and Pseudo-Jonathan. The Septuagint warrants particular attention. While witnessing the originality of the first person verb, this version parses the syntax of the underlying Hebrew text remarkably differently than does the MT. The latter regards , “your cattle,” as the end of the thought unit; it concludes the first half of the verse, or v. 24a (in the accentual system, this verse divider is marked with the disjunctive 133

My translation. For the text, John William Wevers, Exodus (Septuaginta 2.1; Göttingen: Vandenhoeck & Ruprecht, 1991), 246 (my translation). 135 The Samaritan form is apel perfect; the past tense refers back to the just preceding tenth commandment of the Decalogue, with the sectarian interpretation of the requirement to build a sanctuary on Mount Gerizim. Note that Samaritan Targum MS A reads the second person imperfect. For a discussion, see Abraham Tal, “The Samaritan Targum of the Pentateuch,” in Mikra: Text, Translation, Reading, and Interpretation of the Hebrew Bible in Ancient Judaism and Early Christianity (ed. Martin Jan Mulder; CRINT 2.1; Assen and Maastricht: Van Gorcum; Minneapolis: Fortress, 1988), 189–216. 136 For the text, Alexander Sperber, The Bible in Aramaic Based on Old Manuscripts and Printed Texts, vol. 1: The Pentateuch According to Targum Onkelos (Leiden: E. J. Brill, 1959), 122. My translation modifies both Israel Drazin, Targum Onkelos to Exodus (Hoboken, N.J.: Ktav, 1990), 206; and Bernard Grossfeld, The Targum Onqelos to Exodus: Translated, with Apparatus and Notes (Aramaic Bible 7; Wilmington, Del.: Michael Glazier, 1988), 57–58. 137 For the text, Ernest G. Clarke (Targum Pseudo-Jonathan of the Pentateuch: Text and Concordance [Hoboken, N.J.: Ktav, 1984], 92 (my emphases and translation). 134

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accent atna). Consequently, the MT understands the key clause in question to begin a new thought unit, concerned with theophany and divine blessing: “In every place that I proclaim my name (        ), I will come to you and bless you” (v. 24b). For the LXX translator, however, the same prepositional phrase in the underlying Hebrew does not mark the beginning of a new thought unit.138 Instead, the phrase is construed as a dependent relative clause. It continues from what precedes it, so as to define and restrict where the sacrificial activity of v. 24a may take place: not at any altar, completely randomly, but rather ejn panti; tovpw/, ou| a]n ejponomavsw to; o[nomav mou ejkei', “in every place where I proclaim my name there.” Only with that specification does the first part of the verse conclude. The new statement, whereby the deity affirms blessing, here becomes entirely independent of the requirement for altar construction and sacrifice. With the loss of the initial introduction to the final clause, it becomes necessary to add a coordinating conjunction so as to include the remaining phrase: kai; h{xw pro;" se; kai; eujloghvsw se, “and I will come to you and bless you.” Several things come into play here. The most important is that the primary textual witnesses consistently reflect the first person form of the verb. The fact that the Septuagint reflects the first person while nonetheless parsing the syntax of the verse so differently than does any other textual witness increases its significance. The Septuagint reflects an understanding of the verse that is independent of the other textual witnesses (MT, Samaritan Pentateuch, Targum Onqelos, and Targum Pseudo-Jonathan), yet nonetheless testifies that its underlying Hebrew Vorlage contained the first person. In terms of text-critical methodology, it is hard to imagine a stronger corroboration of this reading as original. The Septuagint also points to several additional issues that should be kept in mind before proceeding to the other witnesses. The translator’s parsing of the syntax of this verse seems less original than that of the MT: it reduces the formula for divine visitation and blessing to little more than an afterthought, loosely connected to the preceding. This rather forced rendering of the altar law is most logically understood as already beginning to respond to the strictures of Deuteronomy, which prohibit sacrifice at random locations: “Take heed lest you offer your burntofferings in every place that you see” (     ) (Deut 12:13). On that basis, it seems that the Septuagint translator renders the Exodus altar law so as to preclude any such concerns. The translator in effect reads the requirement of Deuteronomy 12, that sacrifice should take place only “in the place that Yahweh your God shall choose” (Deut 12:13), back into 138 L’Exode (ed. Alain Le Boulluec and Pierre Sandevoir; La Bible d’Alexandrie 2; Paris: Cerf, 1989), 213.

12. Is the Covenant Code an Exilic Composition?

321

the altar law of Exodus. Elsewhere, too, the Septuagint translator of Exodus adjusts his rendering in light of Deuteronomic norms.139 The parsing of the syntax of the underlying Hebrew, in other words, is already colored by harmonistic legal exegesis, even as the Septuagint translator remains true to the consonantal text of his underlying Hebrew Vorlage, with its first person verb. Similar issues arise in Onqelos and PseudoJonathan in terms of the choice of verbal stem, even as they retain the first person verb.140 In contrast to the unanimity of the primary textual witnesses, the Aramaic exegetical tradition (the PeshiÅta and the Palestinian targumim) renders the verb in the second person (see Figure 12.6). In this view, the divine name is invoked in human prayer: PeshiÅta

)

0 12  $ /

. , !  + - .  & ( 02 01 . 0  

It is an altar of earth you will make for me, and you will sacrifice upon it your burnt offerings and your offerings, and your flocks and your bulls. Wherever you invoke my name, I will come unto you and I will bless you.141 Fragmentary Targum

   [ ]     %   %    

In every place that you [pl.] invoke my holy name, my Memra will be revealed unto you and will bless you.142 Targum Neofiti 1

   %      %    %    

In every place that you [pl.] invoke my name in prayer, I will be revealed to you by my Memra and will bless you.143 FIGURE 12.6 The Textual Witnesses to Exod 20:24b Reflecting the Verb in Second Person 139 Elsewhere too, even more explicitly, the Septuagint translator of Exodus levels “the text not only within the immediate context but also within the context of the book and even of the Pentateuch as a whole” (John W. Wevers, Text History of the Greek Exodus [Mitteilungen des Septuaginta Unternehmens 21; Göttingen: Vandenhoeck & Ruprecht, 1992], 148). Wevers shows how the rendering of the “list of nations occupying the land of promise” always includes the Girgashites, who are never part of the MT Exodus. “This does not mean the parent text was longer; it simply reflects the translator’s leveling with Deut 71” (ibid.). The translator also levels inconsistencies of verbal number, as discussed below.

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The140additional141changes142that143they introduce clarify what is at issue in their rendering.144 The Hebrew text reflected by the MT emphasizes the immediacy of divine presence in a theophany by the altar,   , “I shall come to you.” The manifestation of the deity in a theophany is here emphasized in association with the altar.145 Yet the Aramaic targumim reject the physical theophany of the deity. They consistently reject the verb of motion—the verb that defines the deity’s entry into space and time— and instead render it metaphorically, so as to preserve divine transcendence. Given their theological assumptions, the deity never makes himself immanent in a theophany. For the Fragmentary Targum and Neofiti, he does not “come” but instead “is revealed” by means of his name (Memra). Strikingly, for Onqelos and Pseudo-Jonathan, which reflect the first person verb, the deity does not “come” but instead “sends” his blessing and will then (redundantly) “bless you.”

140 The rendering of Onqelos (   ) and of Pseudo-Jonathan (   ) assumes a Hebrew Vorlage ()     , rather than      (MT Exod 20:24). The rendering in both cases accommodates the Exodus lemma to the Deuteronomic election formula:     (Deut 12:5), rendered by both Onqelos and Pseudo-Jonathan as %     . This exposition follows the

valuable work of Leo Prijs, Jüdische Tradition in der Septuaginta (Leiden: E. J. Brill, 1948), 96; repr. with idem, Die grammatikalische Terminologie des Abraham Ibn Esra, and an annotated bibliography by Eva Prijs (2 vols. in 1; Hildesheim: Georg Olms, 1987). Despite the accommodation of the translator to the model provided by Deuteronomy, the retention of the first person cannot be explained by the Deuteronomic model, which in both the Hebrew text and the targumic rendering involves an infinitive construct that is not inflected for person. The first person in both cases, which departs from the translation model, thus reflects the original Exodus text. 141 For the text, M. D. Koster, “Exodus,” in The Old Testament in Syriac according to the PeshiÅta Version, I/1: Preface, Genesis–Exodus (ed. PeshiÅta Institute; Leiden: E. J. Brill, 1977), 117–219 (at 164; my translation). 142 For the text, Michael L. Klein, The Fragment Targums of the Pentateuch According to their Extant Sources (2 vols.; AnBib 76; Rome: Pontifical Biblical Institute, 1980), 1:176. My translation modifies and corrects that provided by Klein (2:134). 143 For the text, Alejandro Díez Macho, Neophyti 1: Targum Palestinense Ms de la Biblioteca Vaticana, vol. 2: Éxodo: Edición príncipe, introducción y versión castellana (Textos y Estudios 8; Madrid: Consejo Superior de Investigaciones Científicas, 1970); my translation. 144 For a valuable overview of the dating and exegetical concerns of the Targums, see Philip S. Alexander, “Jewish Aramaic Translations of Hebrew Scriptures,” in Mikra: Text, Translation, Reading, and Interpretation of the Hebrew Bible in Ancient Judaism and Early Christianity (ed. Martin Jan Mulder; CRINT 2.1; Assen and Maastricht: Van Gorcum; Minneapolis: Fortress, 1988), 217–53. 145 Similarly, in the previous chapter, the deity promises to appear in a theophany to Moses, to affirm his authority: %      , “I am about to come to you in a thick cloud” (Exod 19:9).

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323

All the Aramaic targumim, whether or not they reflect the first person verb, are consistent in removing any notion of divine immanence. They solve this problem in different ways: by transforming theophany into prayer; by transforming theophany into revelation merely of the name; or by replacing the idea of the deity’s physically “coming” in theophany in favor of his “sending” non-corporal blessing. Even the targumim that reflect the first person reconfigure what is at stake. The name is no longer proclaimed directly by the deity who makes himself immanent in live, first person speech and self-introduction. Instead, the deity affirms his transcendence while sanctioning his Shekinah, as hypostasis, to dwell in the sanctuary. The targumic tradition, whether reflecting the first person or the second person of the verb, uniformly subordinates the altar law of the Covenant Code (with its conception of theophany at the sacrificial altar) to the later theological norms of Deuteronomic Name theology (and the conception of the hypostasis). The Syriac falls neatly into place as part of this broader tradition. It therefore reflects exegesis.146 It does not reflect a proper text-critical variant.147 Elsewhere, too, in this verse it levels from specific to generic religious concepts.148 The PeshiÅta translation arose in a 146 Already recognizing that the Syriac second person rendering does not offer a true text-critical variant is the ground-breaking work of Chaim Heller, Untersuchung über die Peschîttâ zur gesamten hebräischen Bibel: Inaugural-Dissertation (Berlin: H. Itzkowski, 1911), 7– 8; idem, A Critical Essay on the Palestinian Targum to the Pentateuch (New York: Alpha, 1921), 23–24; and idem, Peshitta: In Hebrew Characters with Elucidatory Notes (2 vols.; Berlin: Gutenberg, 1927–1929), 2:97 n. 12. At the same time, however, his explanation of the exegetical issue involved, as an atbash code (whereby becomes  and  becomes  etc.) is untenable (Maori, PeshiÅta Version of the Pentateuch and Early Jewish Exegesis, 82). Nachman Krochmal [1785–1840] had also seen that the Syriac incorporates an exegetical tradition (The Writings of Nachman Krochmal [ed. Simon Rawidowicz; 2d ed.; London and Waltham, Mass.: Ararat Publishing Society, Ltd., 1961], 406). I am grateful to Professor Maori for drawing my attention to the work of Heller and Krochmal. 147 Incisively, see Michael P. Weitzman’s posthumously published study (Syriac Version of the Old Testament, 61; emphasis added): If anything, past use of [the] P[eshiÅta] in the reconstruction of the Hebrew text has been excessive. The danger is that the translator [of the Syriac] has anticipated the modern critic: the very features sought by the critic in order to identify good readings may have been brought in long ago by the translator in order to foster smoothness and consistency in his version. Thus, in the area traditionally of greatest demand, namely the provision of variant Hebrew readings, P’s role is modest. . . . The real interest of P lies elsewhere. P shows in detail how—and to what degree—the Hebrew Bible was understood in a particular community in the earliest centuries of this era. 148 For example, it levels , “your well-being offerings” (Exod 20:24a) to the homogenous wqwrbnyk, “your offerings.” This contrasts with its normal rendering in the

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community with scant interest in the cultus and its realia.149 At issue, therefore, in the second person rendering is not a textual variant but a tradition of exegesis that it shares with the other Aramaic targumim.150 That exegetical tradition is unattested in the earliest textual witnesses. As regards theology, terminology, and retention of number inconsistency (Numeruswechsel),151 the text reflected by MT Exod 20:24 is the one that most resists leveling: Witness

Rejection of cultic immanence as anthropomorphic

Second term in sacrifice list generalized and leveled

Leveling of Numeruswechsel of addressee (Exod 20:22–26)

MT

—

—

—

LXX

+

—

+

SP 152

—

—

—

Syriac

+

+

—

Tg. Onq.

+

+

—

Tg. Ps.-J.

+

+

+

Frg. Tg.

+

+

+

Tg. Neof.

+

+

+

FIGURE 12.7 Textual Phenomena Subject to Leveling (Exod 20:24)151

Syriac, “whole-offering” (as at Lev 3:1). This and similar confusions suggests that “the translator had no prior halachic knowledge to prevent this confusion” or was indifferent to the distinction (Weitzman, Syriac Version of the Old Testament, 217). 149 “The Judaism of P is non-rabbinic and indeed anti-ritual” (ibid., 258). 150 For a valuable formulation of these issues, see Maori, “Methodological Criteria,” 103–19: The . . . Peshitta and the targums share a common exegetical tradition. Like the targums, the Peshitta drew upon the then-current exegetical tradition. The stylistic similarity between the Peshitta and the targums (as well as the stylistic similarity between the Peshitta and rabbinic literature) may be explained simply as the sharing of interpretations that were transmitted (not necessarily in writing) in set formulae. 151 The MT of the larger unit in which the altar law is found contains an unexplained shift from second person plural used to address Israel (Exod 20:22–23) to second person singular in the altar law itself (20:24 –26). Moderns see this inconsistency as evidence of separate literary strata (Schwienhorst-Schönberger, Das Bundesbuch, 284– 86; challenged by Van Seters, Law Book for the Diaspora, 61). The ancient witnesses were no less sensitive than modern critics to such inconsistencies and resolved them in the translation so as to produce a smoother text, free of the Numeruswechsel. Thus LXX employs the second person plural for v. 24a (Wevers, Text History of the Greek Exodus, 72, 111; cf. 148). This levels the public address in the altar law to the plural number of its narrative introduction (vv. 22–23). The same tendency is carried yet further by the Fragmentary Targum and Neofiti, both of which level the second person plural through the altar law

325

12. Is the Covenant Code an Exilic Composition?

The primary textual witnesses thus support the first person verb (as retained by MT Exod 20:24b) as the original reading:152 Witness

God proclaims own Name

Worshipper proclaims Divine Name in prayer

+

MT LXX

+

SP

+

Syriac

+

Targum Onqelos

+

Targum Pseudo-Jonathan

+

+

Fragmentary Targum

+

Targum Neofiti 1

+

FIGURE 12.8 Summary of Evidence Regarding the Person of the Verb

With the first person verb defended text-critically, the question now arises as to its meaning. The dismissals of its meaningfulness by Van Seters and Tigay alike are difficult to understand, since they do not consider either the text-critical or the inner-biblical evidence. There is clear evidence for the deity’s proclaiming his own name in a theophany: Gen 15:7

    

Gen 17:1

     

Gen 28:13

   

And he said to him, “I am Yahweh” And he said to him, “I am El Shaddai” And he said, “I am Yahweh”

In each of these cases, a theophany is marked by the deity’s introducing himself by announcing his name.153 In the latter case, that proclamation of the name in a theophany takes place specifically at a cultic “place”: the

(vv. 24 –26), making the entire unit (20:22–26) a consistent plural. The Syriac conforms to the number of the MT and does not level. 152 On other grounds, of course, the Samaritan Pentateuch shows clear evidence of ideological intervention in the text of this verse (shift of the verb from future to past) and of the larger context; see n. 135 above. 153 Ironically, this close connection between altar building and theophany was essential to Van Seters’s very compelling reconstruction of the compositional history of the birth story of Isaac. He reaffirms the old source-critical insight that the immediate literary antecedent of the theophany (Gen 18:1) is Abraham’s construction there of an altar (Gen 13:18). “The structure of the birth story (in [Gen] 13:18; 18:1a, 10 –14; 21:2, 6 – 7) is therefore fairly clear. Abraham builds an altar at Mamre and Yahweh appears to him there” (Van Seters, Abraham in History and Tradition, 207).

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III. Debate and Dialogue: The Question of Method

word , “place,” recurs six times in the unit (Gen 28:10 –22).154 That cult-site is, of course, Luz, renamed Bethel.155 The close connection between theophany and altar, as pointed out above, was already recognized by Wellhausen: “Um so mehr, als die Patriarchen ihre Altäre in der Regel nicht nach eigenem Gutdünken errichten, wo es ihnen beliebt. Sondern eine Theophanie macht sie aufmerksam auf die Heiligkeit des Ortes oder bestätigt dieselbe wenigstens nachträglich.” [“All the more as the altars, as a rule, are not built by the patriarchs according to their own private judgment wheresoever they please; on the contrary, a theophany calls attention to, or at least afterwards confirms, the holiness of the place.”]156 The deity’s proclaiming his name in the context of a theophany remains an important motif throughout Exodus. The proclamation of the divine name in these cases is not merely the self-introduction of the deity to the addressee; rather, the proclamation of the name constitutes the revelation itself. It provides the means for the divine self-manifestation.157 Van Seters argues that the “expression ( ) is the direct equivalent to invoking the name in Exod 20:24b in that it points to the activity of the worshipers and not the deity.”158 In making that generalization, Van Seters overlooks the contrary evidence of the literature concerned with the divine theophany at Sinai (Exod 33:19; 34:5, 6). The altar law of Exodus takes for granted that the deity makes himself present in a theophany by proclaiming his name. The deity “comes to” (   ) the celebrant at the altar in the context of sacrifice, where he grants blessing. Priests play no role in this sacrifice, nor is there any other form of mediation. There is no notion of prayer, no human speech, petition, or invocation of the deity. In terms of the phenomenology of religion, the altar law of Exodus does not fit in the world of the exile. What is striking, however, is how inconsistent the altar law is with its context. In each of the other passages cited from Exodus, the theophany is independent of any altar but is rather associated with Sinai, as the mount of revelation. Moreover, in each of these cases, the theophany is a one-time event, as the deity discloses himself first to Moses, then to the entire nation, and then, after 154 Van Seters seems to overlook the significance of this word and its repetition in suggesting that the nexus between theophany and altar is here merely incidental and a later development (Law Book for the Diaspora, 62– 63). 155 Tigay’s claim that “in the context of sacrifice and altars, it is always the worshipper, not God, who invokes . . . or calls upon . . . God’s name” overlooks this evidence for the connection between theophany and altar (“Presence of God,” 203). 156 Wellhausen, Prolegomena, 30 –31; ET, 31. 157 In his valuable study of the “Name theology,” Mettinger articulates this well and provides an extensive discussion of the relevant literature (Dethronement of Sabaoth, 125). 158 Van Seters, Law Book for the Diaspora, 63.

327

12. Is the Covenant Code an Exilic Composition?

the incident of the golden calf, reaffirms the covenant by renewing the theophany to Moses: THEOPHANY Divine self-introduction

TO WHOM Moses alone

Israel

WHERE Sinai/ Horeb

Altar

TIME REFERENCE Once in Ongoing distant present past

      He said, “I am the God of your father” .....

   . . . 

+

+

+

+

+

Yahweh . . . has sent me to you (Exod 3:6, 15)

   

+

I am Yahweh your God (Exod 20:2)

            In every place that I proclaim my name, I will come to you and bless you. (Exod 20:24)

+

+

+

 $            And he said, “I will make all my goodness pass before you, and I will proclaim the name Yahweh before you.” (Exod 33:19)

+

+

+

+

+

+

+

+

+

   %      Yahweh descended in the cloud, presenting himself to him there, and he proclaimed the name, “Yahweh.” (Exod 34:5)

       Yahweh passed before him and proclaimed, “Yahweh, Yahweh . . .” (Exod 34:6)

FIGURE 12.9 Evidence for Deity’s Proclaiming Own Name in a Theophany

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III. Debate and Dialogue: The Question of Method

That inconsistency may well explain the function of the altar law in the present context: it serves as a bridge between theophany as an inaccessible event of the past, situated at a no-longer-accessible sacred mountain found outside of the land, and the need to assure divine presence as something ongoing and accessible in the present.159 The sacrificial cultus here channels theophany from the peak of Sinai into the daily life of the community, providing a transition from past to present, from one time event to an event that can be repeated and renewed. It ensures that the deity is accessible not only at the sacred mount of revelation but in the daily life of the people, in sacrifice. Such a conception is only conceivable in the preexilic period. Since the law, as Van Seters concedes, is a plural distributive (“in every place”), it envisions multiple altars as legitimate for sacrifice. On that basis, it is pre-Deuteronomic. If this analysis is correct, it also suggests strongly that the insertion of the altar law in this context must be the work of a creative redactor. Figure 12.10 indicates the redactional logic: (Exod 19:9)

%            A

Theophany

Then Yahweh said to Moses, “I am about to come to you in a dense cloud.”

   

B

Name

       

B

Name

(Exod 20:2) I am Yahweh your God (Exod 20:24b)

In every place that I proclaim my name

    A

Theophany

I will come to you and bless you. FIGURE 12.10 The Contextual Logic of the Altar as Site for the Renewal of Theophany

By grafting together the two inconsistent conceptions of divine presence, the redactor sought intentionally to assure the continuity of divine presence in the theophany, shifting its home from Sinai to the altar, the precursor of Zion. The redactor is here both author and theologian.

159 With respect to the altar law (Exod 20:22–26), Tigay describes this goal incisively: “the coherence of the passage revolves around the means of securing God’s presence” (“Presence of God,” 196). I differ from him, however, in (1) not emending Exod 20:24b to a notion of prayer and therefore as seeing sacrificial worship as essential to the conception of divine presence in this verse, since at issue is a theophany at an altar; and (2) addressing the logic for the altar law’s incorporation into its present context, thereby distinguishing between original coherence and redactional logic.

12. Is the Covenant Code an Exilic Composition?

329

Conclusions A Law Book for the Diaspora offers new ways for understanding key aspects of the Covenant Code: the extent of its relation to the Laws of Hammurabi, the first millennium as the most logical context for the reception and reuse of that text as a model for the drafter of the Covenant Code, and the importance of textual models in ancient Israel. In the process, basic assumptions of continental traditio-historical and form-critical methodology undergo an important critique. Any simplistic one-to-one correlation between specific literary form and a certain, discrete life-setting in which it allegedly arose, only then subsequently to be integrated by a redactor, will likely not survive the critique provided by this book. The issue is that the author goes so far in his opposition to the consensus that the arguments become extreme: “not second millennium” too quickly translates into “Neo-Babylonian” as if there were nothing in between. For Van Seters, “no editor” (valuably rejecting the form-critical model of originally oral laws that arise from separate sociological contexts, which then require a compiler to integrate) too rapidly translates into a rejection of redaction altogether. Although the author claims that the model of editor currently used in the field is anachronistic, the alternative that he provides, which sees author and redactor as mutually exclusive concepts, seems to be a product of European Romanticism. This approach does not take cuneiform literature into account. In particular, it overlooks the evidence for the importance of redaction to the composition of the Laws of Hammurabi, the very text that allegedly served as the Covenant Code’s literary exemplar. It also does not examine works like the Samaritan Pentateuch or the Temple Scroll, which might have offered additional controls concerning the nature of text composition in the Second Temple period. In place of an editor he argues for an author, and for the compositional coherence, in synchronic terms, of the entire Sinai pericope, which he attributes to his exilic Yahwist. While previous scholarship has not hesitated to regard the Sinai pericope in its final form as a work of the exilic or postexilic period, Van Seters rejects any notion of separate literary strata and views the entire unit as exilic and as without any literary prehistory. On that basis, the exilic date for the composition of the Sinai pericope also attaches to the Covenant Code, as the latter is subsumed both chronologically and textually into the former. The resulting claim that the preexilic dating of the Covenant Code is simply an arbitrary prejudice of scholarship cannot be sustained. The textual analysis that reads the laws of the Covenant Code as responding to Deuteronomy requires extensive eisegesis; it also overlooks a series of text-critical and literary-critical issues. Similarly, the attempt to

330

III. Debate and Dialogue: The Question of Method

account for the impact of the Laws of Hammurabi upon the Covenant Code by explaining it as reflecting the Neo-Babylonian period, while possible in theoretical terms, overlooks a more compelling alternative: the NeoAssyrian period, with its hegemony over Syro-Palestine. The method used to remove the alleged veil of misreading that has long plagued the text calls attention to itself for the frequency with which alternative models of explanation, complicating evidence (text-critical or Assyriological), and relevant scholarly discussions, are not brought to bear. In assuming the mantle of gadfly, Van Seters does not sufficiently complicate his own assumptions. This occurs with sufficient frequency as to raise doubts in the reader’s mind about the cogency of the book’s larger claims. Critical evaluation of the book surely confirms the positions that it seeks to reject. First, the Sinai pericope is a redactional composition. It is the work of a brilliant author-redactor who, working in some ways like those responsible for Hammurabi and Gilgamesh, integrated diverse literary material into a new work, one that makes an original statement that goes beyond the original assumptions of its component parts. Among the component parts in question was, in whole or part, the preexilic Covenant Code. Second, the Neo-Assyrian period provides the most logical setting for a Judean author to pattern the Covenant Code after the Laws of Hammurabi. Third, and finally, the altar law of the Covenant Code is preDeuteronomic: in terms of syntax and meaning, the indefinite construct functions as a distributive plural. It assumes a plurality of cultic sites, not a single cult site. Consequently, the law cannot logically be construed as concerned with prayer. Instead, it affirms divine theophany as a consequence of the sacrificial worship of the deity. Sacrificial worship at an altar, not prayer, provides access to the deity; the altar permits the deity’s immanence and assures his continued presence. This conception, like the Covenant Code prior to its redactional incorporation into the Sinai pericope, makes most sense in the preexilic, not the exilic, period.

Acknowledgments The author gratefully acknowledges permission to reprint the essays gathered in this volume from the following sources: 1.

“The Right Chorale”: From the Poetics to the Hermeneutics of the Hebrew Bible “Not In Heaven”: Coherence and Complexity in Biblical Narrative (ed. Jason P. Rosenblatt and Joseph C. Sitterson; Indiana Studies in Biblical Literature; Bloomington and Indianapolis: Indiana University Press, 1991), 129 –53 (notes on 242– 47). Reprinted by permission of Indiana University Press.

2.

The Seductions of the Garden: The Genesis of Hermeneutics as Critique On Interpretation: Studies in Culture, Law, and the Sacred (ed. Andrew D. Weiner and Leonard V. Kaplan; Graven Images 5; Madison: University of Wisconsin Press, 2002), 95– 99. Reprinted by permission of Graven Images.

3.

The Sinai Covenant: The Argument of Revelation The Jewish Political Tradition, vol. 1: Authority (ed. Michael Walzer, Menachem Lorberbaum, and Noam J. Zohar; New Haven and London: Yale University Press, 2000), 23–27. Reprinted by permission of Yale University Press.

4.

Deuteronomy’s Conception of Law as an “Ideal Type”: A Missing Chapter in the History of Constitutional Law Judge and Society in Antiquity (ed. Aaron Skaist and Bernard M. Levinson) = Maarav: A Journal for the Study of the Northwest Semitic Languages and Literatures 12:1–2 (2005): 83–119. Reprinted by permission of Western Academic Press.

5.

The “Effected Object” in Contractual Legal Language: The Semantics of “If You Purchase a Hebrew Slave” (Exod. xxi 2) Vetus Testamentum 56 (2006): 485–504. Reprinted by permission of Koninklijke Brill N.V.

332 6.

Acknowledgments

Textual Criticism, Assyriology, and the History of Interpretation: Deuteronomy 13:7a as a Test Case in Method Journal of Biblical Literature 120 (2001): 211– 43. Reprinted by permission of the Society of Biblical Literature.

7.

Recovering the Lost Original Meaning of     (Deuteronomy 13:9) Journal of Biblical Literature 115 (1996): 601–20. Reprinted by permission of the Society of Biblical Literature.

8.

“But You Shall Surely Kill Him!”: The Text-Critical and Neo-Assyrian Evidence for MT Deuteronomy 13:10 Bundesdokument und Gesetz: Studien zum Deuteronomium (ed. Georg Braulik; Herders biblische Studien; Freiburg: Herder, 1995), 37– 63. Reprinted by permission of Herder Verlag.

9.

The Case for Revision and Interpolation within the Biblical Legal Corpora Theory and Method in Biblical and Cuneiform Law: Revision, Interpolation, and Development (ed. Bernard M. Levinson; Journal for the Study of the Old Testament Supplement Series 181; Sheffield: Sheffield Academic Press, 1994; repr., Classic Reprints; Sheffield: Sheffield Phoenix, 2006), 37–59. Reprinted by permission of Continuum International Publishing Ltd. and Sheffield Phoenix Press.

10. Calum M. Carmichael’s Approach to the Laws of Deuteronomy Harvard Theological Review 83 (1990): 227–57. Reprinted by permission of Harvard Theological Review.

11. The Hermeneutics of Tradition in Deuteronomy: A Reply to J. G. McConville Journal of Biblical Literature 119 (2000): 269 – 86. Reprinted by permission of the Society of Biblical Literature.

12. Is the Covenant Code an Exilic Composition? A Response to John Van Seters In Search of Pre-Exilic Israel: Proceedings of the Oxford Old Testament Seminar (ed. John Day; Journal for the Study of the Old Testament Supplement Series 406; London and New York: T. & T. Clark, 2004), 272–325. Reprinted by permission of Continuum International Publishing Ltd.

Acknowledgments

333

In addition, the author acknowledges use of the following: Under formal license, the frontespiece excerpt from “Esthétique du Mal,” from Wallace Stevens, The Collected Poems of Wallace Stevens, © 1954 by Wallace Stevens and renewed 1982 by Holly Stevens. Used by permission of Alfred A. Knopf, a division of Random House, Inc. Under formal license, the fonts NewJerusalemU (for Hebrew), TranslitLSU (for transliteration), and SymbolGreek II, by Linguist’s Software, © 2002–2004 Payne Loving Trust. For the Unicode Syriac font, Estrangelo Edessa Version 1.00 © Syriac Computing Institute. Created by Paul Nelson and George Kiraz, 2000. All rights reserved. Appreciation is extended to The Syriac Computing Center of Beth Mardutho for making this resource available.

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Index of Scripture Genesis 1 1:1 1:2 1:3 1:6 – 8 1:11 1:12 1:20 1:24 1:26 1:27 1:29 2–3 2:9 2:16 2:16 –17 2:17 2:25 3 3:1 3:2–3 3:4 –5 3:6 3:7– 8 3:22 6–9 6:6 6:7 6:8 6:17 6:17–22 6:19 6:19 –20 7:1–5 7:2 7:3

3, 19n18, 46, 48, 49 28 19n19 45 19 97, 99 97 17 17 17, 46, 99 99 97 5, 40, 46 27 44 27n28, 43 27 42 27, 41 42– 43 27n28, 44 44 45 45 45 17, 21n21 17 17 18 19 18, 19n16 18, 19 22 18, 19n16, 245 18, 19, 22 19n16

Genesis (continued ) 7:4 19 7:6 –10 22 7:9 34 7:11 19n19 7:11a 19 7:11b 19 7:12 19 7:23 17 8:13–14 19 12:7– 8 316n131 13:18 325n153 15:7 325 17:1 325 18:1 325n153 18:7 252n97 18:10 –14 325n153 18:17 151n17 19:16 177n26 19:30 –38 249, 250n91 20:12 129 –30, 130fig. 20:13 317 21:2 325n153 21:6 – 7 325n153 26:11 211 26:14 107n36 27:29 128fig., 131n52 28:10 –22 314n127, 326 28:13 325 37– 47 248 37:27 106 37:31–33 164n52 38 243, 245 38:18 243 38:25 243 39:7–20 243 40:1 289n44

378

Index of Scripture

Genesis (continued ) 41:8 289n44 43:29 128fig. 45:9 101 47:6 100 47:13–14 108 47:15–17 108 47:16 –17 108 47:18 –19 108 47:19 109 47:20 108 47:21 108 – 9, 109fig. 49:8 131n52 Exodus 3:6 3:8 3:15 12:1–20 12:2 12:3 12:5 12:8 – 9 12:9 12:21 12:21–23 12:21–27 12:39 13:8 –10 15:4 16:1–17 18 18:13 18:14 –16 18:17–22 18:21 18:24 –26 19 19 –20 19 –24 19:1 19:2–11 19:3– 6 19:6 19:6 – 8

327fig. 46 327fig. 269n36 28 264 211 259n8, 264, 266n28 34, 258n6, 266 264 219, 259n8 268n36 261 261 289n44 276 62– 67 62 62 63 67, 103n31 63 286fig. 50 63, 64, 276 – 91, 286fig., 300 282n22, 286 286 49 49, 286n41, 288n43 286n41, 287n41

Exodus (continued ) 19:6 – 9 287n41 19:7 286n41, 288n43 19:7– 8 287n41 19:8 50, 286n41, 288n43 19:9 286n41, 322n145, 328fig. 19:9a 288n43 19:9b 288n43 19:12–13a 282n22, 286 19:13b 287n41 19:13b–19 286 19:17 287n41 19:18 287n41 19:20 –25 282n22, 286 20 44, 253, 267, 282n23, 286fig., 296 20:1 288, 288n43 20:1–17 285, 286 20:2 59n23, 253, 327fig., 328fig. 20:2–3 27 20:2–11 248 20:2–17 50 20:3 244 20:4 211 20:6 313n123 20:7–10 313n123 20:8 –11 282n22 20:18 287n41 20:18 –26 286 20:19 287n41 20:21 287n41 20:22–23 312n122, 324n151 20:22–26 204, 281, 310, 315, 328n159 20:22–22:16 204 20:22–23:19 205n8 20:22–23:33 204, 205, 206, 217 20:23 287, 287n41 20:23–23:17 231n16 20:24 35, 36, 60, 242, 252, 266, 269, 276 – 80, 307–28, 316fig., 318fig., 324fig., 327fig.

Index of Scripture

Exodus (continued ) 20:24a 316fig., 318fig. 20:24b 312n122, 316fig., 318fig., 325fig., 328fig. 20:24 –26 229, 316n131, 324n151 20:25 316fig. 20:26 316fig. 21–23 59n23, 60n24, 276 –330, 286fig. 21:1 204, 289 21:1–22:16 204, 205, 207, 281n18 21:1–23:19 33, 229 21:2 60n23, 89, 93–111, 111fig., 124n39, 218, 310 21:2a 103n32 21:2– 6 280n15 21:2–11 59n23, 276, 281, 298fig. 21:2–22:16 206, 217 21:3 124n39 21:4 124n39 21:5 95n8, 124n39 21:5– 6 110fig. 21:6 74n57 21:7 106 21:7a 101n26 21:7–11 280n15 21:10 –11 298fig. 21:12 205n8, 281 21:12–14 298 21:12–17 59n23, 205n8 21:13–14 205n8, 281 21:14 191n57, 214 21:15 212, 298fig. 21:15–17 205n8, 281 21:16 208 –12 21:17 211n33, 212, 298fig. 21:18 –19 298fig. 21:18 –37 281 21:20 –21 298fig. 21:22–23 298fig. 21:23–27 298fig. 21:24 272

379

Exodus (continued ) 21:28 –30 71n48 21:28 –32 298, 298fig. 21:29 240 21:30 214 21:31 71n48 21:32 71n48 21:33–34 298fig. 21:37 106, 213–14, 298fig. 21:37–22:3 206, 215, 215n48 22:1–16 281 22:2 215 22:2b 106, 214 22:2b–3 298fig. 22:3 213, 214, 215 22:6 126n45 22:6 – 8 298fig. 22:7 73n55, 74n57, 124n39 22:8 73n55, 124n39 22:9 124n39, 288n43 22:9a 211 22:9 –12 298fig. 22:10 73n55, 73n57, 124n39 22:11 124n39 22:13–14 298fig. 22:15–16 306n103 22:17–19 204n7, 281 22:17–23:19 204 22:18 205n8 22:20 –26 281 22:24 –26 307n105 23:1– 9 281 23:7 191n57, 288n43 23:8 288n43 23:10 –19 204, 281 23:12 313n123 23:13 311, 312, 312n122, 312n133 23:14 –17 219, 276 23:15–17 270, 271fig. 23:20 –33 204, 205n8, 281 24 286fig. 24:1–2 282n22, 286 24:3 287n41, 288, 288n43, 290 24:3a 288 – 90

380

Index of Scripture

Exodus (continued ) 24:3b 288 24:3– 8 286, 290 24:4a 288 24:7 288 24:9 –11 282n22, 286 24:12–15a 286 24:15b–18a 282n22, 286 24:18b 286 28:30 75 29:9 177n26 29:13 152n25 29:22 152n25 32–34 243, 244 32:1 244 32:4 244 32:8 244 32:10 17n14 32:17 126n46 32:26 193 32:27 193 32:29 193 32:32 17n14 33:19 326, 327fig. 34 269n36, 296 34:5 326, 327fig. 34:6 326, 327fig. 34:11–16 244n63 34:11–27 282n23 34:12 243, 244n63 34:12–13 243 34:13 243, 244n63 34:14 244n63 34:18 –26 204, 269n36 34:25b 269n36 Leviticus 2:4b 3:1 3:3 3:9 3:14 4:8 7:3 8:8 8:24

211 324n148 152n25 152n25 152n25 151n20, 153 152n25 75 177n26

Leviticus (continued ) 10 –23 231n16 11 19 11:2–23 245 11:32–33 126n45 13:58 126n45 13:59 75n62 14:2 75n62 14:32 75n62 14:54 75n62 14:57 75n62 15:32 75n62 17 229, 252 17–26 33, 217, 229, 285 17:3–7 35–36 17:13b 153n25 18:9 129 –32, 130fig. 18:13 132, 133 18:24 –30 17n14 19:11–18 228n10 19:18 42 19:19 238 19:34 42 20:9 211 20:15 191n57 20:16 191n57 20:17 129, 130fig. 20:19b–20 132 20:22–26 17n14 22:10 –11 107 22:11 111, 111fig. 23:1–2 220 23:2 219, 220 23:2ab 221 23:3 220 23:4 219, 220 23:5– 8 220 23:33 221 23:33–36 220 23:37a 221 23:37–38 220 –21 23:39 221 23:39 – 43 221 23:44 221 24:15–22 60 24:20 272

Index of Scripture

Leviticus (continued ) 25 95n7 25:39 106 25:39a 93n1 25:47a 211 25:49 126n45 26:46 35 27:33 252 27:34 35 Numbers 5:6 – 7 5:23 11 11:11 11:14 11:17 14:11–12 15:38 16:33 18:17 20:14 –21 22–24 22:40 25:5 30:3–16 32 35:30

126n45 17n14 66n35 66n35 66n35 66n35 17n14 243 153 252 248 249 266 193 126n45 242 149n15, 167, 182

Deuteronomy 1 1:1–13 1:5 1:9 –17 1:12 1:13 1:16 1:17 1:19 – 46 1:25 1:35 1:39 – 40 2:14 –16 2:19 2:37 3:18 –22

64 – 68, 72 65 248n86 65 66n35 67, 101 69n44 70n44 242 177n26 274 274 274 249 249 242

381

Deuteronomy (continued ) 4 –5 284 4:2 23, 272 5 253, 267, 290, 291n50, 291n52 5:1 75n61, 274 5:3 47, 274 5:3– 4 273 5:4 285 5:5 285 5:6 253 5:6 –15 248 5:6 –21 290 5:22 274, 290 – 91 5:29 75n61 5:32 75n61 6:3 46, 75n61 6:25 75n61 7:1 321n139 7:1– 6 114 7:11 75n61 7:13 265 7:24 –26 114 11 295n67 11:9 46 11:10 97 11:24 317 12 74, 222, 227, 228, 229, 247, 307– 9, 320 12–25 231n16 12–26 33, 46, 55, 217, 225–55, 267, 291n50 12–28 79n70 12:1–3 229 12:1–7 233 12:1–12 228 12:1–28 232–33 12:1–16:17 69, 70, 70n46, 232 12:2 244n63, 317 12:2–7 243, 244n63 12:3 243, 244, 244n63 12:4 243 12:4 –28 229 12:5 75n61, 227, 233, 322n140 12:5– 6 266

382

Index of Scripture

Deuteronomy (continued ) 12:6 265 12:8 –12 233, 248 12:11 75n61, 227, 233 12:13 320 12:13–14 36, 269 12:13–19 233 12:13–31 228 12:14 75n61, 227, 233 12:15–16 222, 252 12:16 222 12:18 75n61 12:20 –23 222 12:20 –28 233, 252n98 12:21 36, 75n61, 252, 266 12:21ab 309 12:23 222 12:26 75n61, 227, 233 12:28 234 12:29 –31 229, 230n13 12:29 –13:19 230n13 12:29 –16:17 233 12:31 243 13 90, 113, 119n27, 125n42, 126n46, 138, 142, 164n51, 168, 184, 191n59, 193, 194, 198n3, 211, 229, 248 13:1 23, 191, 227n8, 230n13, 248, 272 13:1–18 124 13:2 141n81, 191n58, 211 13:2–3 126n45 13:2– 6 113, 145, 161, 166, 185, 230n13 13:2–10 140 13:2–19 182 13:3 211 13:4 145n1 13:5 145n1 13:6 141n81, 145n1, 191n58 13:7 89, 90, 128fig., 166, 174, 179, 193, 194 13:7a 112– 44

Deuteronomy (continued ) 13:7–10 141, 146 13:7–12 113, 129n51, 145, 166, 167, 170, 182, 185, 192, 194, 228, 230n13 13:9 89, 90–91, 126n47, 145– 65, 167n3 13:9 –10 113, 114, 148n9, 149, 150, 157, 166 13:9 –10a 165 13:9 –11 125 13:10 89, 90–91, 118n21, 141n81, 147, 166 – 93, 177fig., 179fig., 194 13:10a 158n39, 180fig. 13:10aa 169n18 13:10b 177n26 13:10 –11 92, 169, 170, 179fig. 13:10 –11a 172, 173 13:11 75n61, 145n1, 174, 179 13:11a 171, 194 13:12 141n81, 146, 191n58 13:13–18 114, 145, 166 13:13–19 230n13 13:14 141n81, 191n58 13:15 141n81, 191n58 13:19 145n1 14 19, 245 14:1–17:1 231n15 14:3–20 245 14:22–29 248, 252 14:24 252 14:25 252 15 126n45 15:2–3 125n44 15:12 104n32, 106, 133n57, 218 15:12a 93n1 15:12–14 126n45 15:12–18 133n57, 276 15:21 70 15:21–23 222 16:1 261

Index of Scripture

Deuteronomy (continued ) 16:1b 262n21 16:1– 8 219, 256 – 67 16:1–17 219 16:2 258n6, 265 16:3 257n6, 261 16:3b 262n21 16:5– 6 264 16:6 261, 267 16:6b 262n21 16:7 34, 258n6, 259n8, 265 16:7b 264 16:11 261n17 16:14 261n17 16:16 270 16:16 –17 270n40, 271fig. 16:18 70n44, 72 16:18 –20 69, 70n46, 72n52, 77, 124 16:18 –22 83n79 16:18 –17:13 248 16:18 –18:22 69, 70, 81, 262n21 16:18 –19:21 232, 233 16:19 70n44 16:20 86 16:21 242 16:21–17:1 70, 70n46, 227n8 16:21–17:7 191 17:1 70 17:2 74, 126n45 17:2–3 133n57 17:2– 6 182 17:2–7 70, 70n46, 74, 77, 125, 125n42, 138n72, 167, 171n20, 182– 83, 191n59, 193–94, 227n8, 230n13 17:4 148n10, 168, 183– 84 17:5 126n45 17:5– 6 184 17:6 74, 149n15, 167, 182, 194 17:6 – 7 149n15 17:6 – 9a 125n43 17:7 169n18, 177–78, 177fig.

383

Deuteronomy (continued ) 17:7ab 177n26 17:8 74 17:8 –10 74 17:8 –13 70, 70n46, 74, 75, 77, 79, 125, 191n59 17:9b 125n43 17:9 –10 74 17:10 75n61, 76 17:11 75–76 17:12b–13a 75n61 17:14 –15 78, 105 17:14 –20 70, 72n52, 78, 125, 262n21 17:15 249n86 17:16 –17 78, 262n21 17:18 –20 78 17:20 75n61 18:1–5 80 18:1– 8 70, 80, 248 18:6 – 8 80 18:9 –22 70, 80, 81n75, 237 18:18 81 18:19 –20 81 19 –24 295n67 19:14 218 19:15 149n15, 167, 182, 194 19:15–21 60 19:20 75n61 19:21 272 20 232 20:1– 9 242 20:4 242 20:5 242 20:6 242 20:16 –18 114 21–22 231n15 21:1– 9 246 21:1–22:5 232 21:1–25:11 217 21:14 213n39 21:15 240 21:15–23 240 21:18 240 21:19 71n50 21:21 75n61

384

Index of Scripture

Deuteronomy (continued ) 21:22 239 – 40 22:1–2 126n45, 213–16 22:2a 211 22:6 – 7 234, 246 22:6 –23:9 232 22:9 97 22:9 –11 238 22:12 242– 43, 248 22:15 71n50 22:22 248 23:3 249 23:4 –7 249 –50 23:5– 6 249 23:8 – 9 248 23:10 –26 232 23:20 –21 248 23:25–26 248 24 232 24:5 105 24:7 210n31, 211, y212– 13, 248 24:17–25:3 248, 252n101 25:1–26:11 232 25:4 245 25:5–10 245– 46 25:7 71n50, 246 25:9 246 25:11–12 245 25:13–16 234, 248 26:5–10 248 26:9 46 26:15 46 26:16 289n46 26:16 –19 46 27 295n67 27:3 46 27:22 129 –30, 130fig. 28 61n27 28:69 248n86, 291 29:1 46 29:13–14 47, 274 30:19 46 31:20 46 33:8 75 33:10 73n53, 75

Joshua 1:3 7:20 8:29 23:7

317 177n26 240 313n123

Judges 6:15 7:2 7:3 8:14 8:19 11:11 16 17 17–18 18 20:23 20:28

131n52 242 242 289n44 128fig. 101 237 237 248 237 114, 145 114, 145

1 Samuel 2:12–17 2:13–16 8:1 8:5 8:10 –17 14:31–33 17:14 18:20 –27 25:11 28:2

248 266n29 100, 102 104 248 252n98 131n52 242 252n97 101

2 Samuel 12:1–14 14:1–24 20:1 20:2 20:4 –13 20:21–22 21

77 77 246 246 246 189 240

1 Kings 3:4 –5 3:16 –28 4:1–19 5:7– 8

316n131 77 77n68 77n68

385

Index of Scripture

1 Kings (continued ) 5:9 –14 77n68 6:12 289n45 6:38 289n45 8:7 152n24 8:15–20 243 8:28 289n44 8:46 –53 315 8:63 242 12:25–33 244 12:28 244 12:31 102n29 12:32 102n29 14:21–23 243 14:31 250 17 237 17:1 245 17:6 245 17:16 245 18 80 18:1 245 18:2 245 18:21 122 19:4 – 8 245 20 242 21:3 242 22:20 –22 242 22:23 81 2 Kings 2:12 4:1– 4 4:41 6:25–31 11:2 17:6 –10 18:13–18 21:13 22 22–23 23 23:9 23:11 Isaiah 11:9

289n44 106 245 245 240 243 138 17n14 238 69, 257, 307n105 238 80 138

152n22

Isaiah (continued ) 26:21 153 51:16 147n7 Jeremiah 4:23–26 13:14 18:23 18:23a 21 21:7 23:33–34 26:16 34:9 34:14

237 163 156n33 156 164n51 163, 164n51 126n45 240 104n32 104n32

Ezekiel 11:16 24:7 24:13 24:14 24:14b 31:15

310 152n25, 153 164n50 164n50 164n50 152

Amos 2:6 2:8a 5:26 5:27 8:6 9:11

106 307n105 183n44 183n44 106 183n44

Habbakuk 1:3 2:10 –13 2:11 2:14

183n44 74 75n62 152

Malachi 2:13 2:16

164n52 152

Psalms 32:1 32:5 40:11

165 149 –50, 165 149, 165

386

Index of Scripture

Psalms (continued ) 40:11a 150 44 156 44:20 153 50:20 128fig. 61:4 147n7 69:9 128fig. 72:1 77 74 156 79 156 106:17 153 119:43 289n45 147:18 289n45 147:19 289n45 Job 1:13 1:18 3:3 3:14 21:26 22:6 24:3– 4 24:9 31:33 36:32 Proverbs 8 10:12 12:16 17:9 28:13 32:5

252n97 252n97 102n28 102n28 153 307n105 307n105 307n105 150n16 151n20, 152

3 154, 155n29, 158, 160 154n28 150n16, 154n27 150, 165 154n27

Ruth 4:1 4:2 4:7– 8 4:9 4:11 4:18 –22

246 246 246 246 71n50 250

Song of Songs 1:6

101

Nehemiah 2:10 2:19 3:33–35 3:36 3:36aa 3:36 –37 3:36ab–37 3:37 3:37a 4:1–2

155 155 155 157 156 155, 165 156 155, 157, 158 156 155

Ezra 9:1 9:11–12

249 249

1 Chronicles 28:18

152n24

2 Chronicles 5:8 19 19:5 35:13

152, 152n24 62n29 102 34, 258n6

APOCRYPHA AND PSEUDEPIGRAPHA 1 Maccabees 2 2:26

Jubilees 193 193

270

387

Index of Scripture

NEW TESTAMENT Matthew 5:1–2 5:17–18 5:21– 48 5:38 10:37 22:39

Luke 272 272 272 272 194 42

6:12–16 6:17– 49 14:26 1 Peter 4:8

272 272 194

155n29

Index of Other Ancient Sources Ancient Near Eastern Literature AKKADIAN EPIC LITERATURE Atrahasis Epic

295

Enuma Elish Tablet 6, lines 501–3

45– 46

Epic of Gilgamesh general discussion Tablet 11 Tablet 11, lines 204 –5

298n73, 330 294 – 95, 304 47n10

LEGAL COLLECTIONS Laws of Eshnunna general discussion §9 §22 §37 Laws of Hammurabi general discussion Prologue Prologue i 27– 49 §1 §§1–5 §3 §4 §5 §6

60n24, 209, 247, 294n63 209n28 209n28 209n28

31, 32–33, 41n3, 49, 280, 282, 292, 293– 304, 302fig., 306, 329 –30 61, 302n87 76 60n25, 302n87 58 –59 60n25 60n25 79 209 –10

Index of Other Ancient Sources

389

Laws of Hammurabi (continued ) §§6 – 7 214 §7 210 §9 74n57 §§9 –13 214 §14 210n29 §§17–20 210n29 §23 74n57, 246 §24 246 §107 74n57 §§117, 118, 119, 124 –25, 125, 148 – 49, 175, 178, 192– 93, 195, 196 –205, 206, 207, 208, 209 –14, 209 –23, 229 – 40, 244 – 49, 250 –52, 253– 65, 265– 66, 266 – 67, 268 –71 298fig. §120 74n57, 298fig. §126 74n57 §§250 –52 298 §266 74n57 §280 106n34 Epilogue xlvii 77 59n20 Epilogue xlviii 7 59n20 Epilogue xlviii 12–13 62n28 Epilogue xlviii 96 59n20 Epilogue xlix 3– 4 62n28 Epilogue xlix 13 59n20 Epilogue xlix 19 –21 62n28

NEO-ASSYRIAN TREATIES, LOYALTY OATHS, AND INSCRIPTIONS Accession Treaty of Esarhaddon (SAA 2, Text 4) rev. line 18 142n85, 142n87, 162n47 Esarhaddon’s Succession Treaty (VTE) (SAA 2, Text 6) general discussion 126n46, 128n50, 138 – 42, 146, 159 – 62, 168, 184 – 92 §8 186, 187fig. §§8 – 9 186 – 87, 187fig. §§8 –10 187, 187fig. §8, line 94 127fig., 142n83, 161n46 §9 187, 187fig., 188 §§9 –10 188 §9, line 103 128n50, 142n83, 161n46 §9, line 107 187 §10 139fig., 139n76, 159fig., 160 – 61, 161n44, 184 – 86, 185fig., 186n50, 187fig.

390

Index of Other Ancient Sources

Esarhaddon’s Succession Treaty (continued ) §10, line 108 139n76, 161n44, 186n50, 187 §10, line 113 142n84 §10, line 115 142n84 §10, lines 115–16 139n76, 146, 161n44, 186n50 §10, line 118 139n76, 161n44, 186n50 §10, lines 119 –20 139n76, 161n44, 186n50 §10, line 122 187 §11 187fig., 188, 189n54 §11, lines 126 –27 141n81, 188, 189n54 §12 139 – 40, 160, 187fig., 188fig., 188 – 89 §12, lines 130 –38a 189n54 §12, lines 136 –38 189n54 §12, lines 138 –39 141n81, 189n54 §12, lines 138 – 41 189n54 §12, lines 138b– 46 189n54 §12, lines 139 – 40 141n81, 188n53, 189n54 §13 187fig. §13, line 160 141n81, 189n54 §14, line 171 142n83, 161n46 §14, lines 171–72 128n50 §15, line 177 189n54 §22, line 246 141n81, 189n54 §22, line 250 142n87, 162n47 §22, lines 254 –55 141n81, 189n54 §24, line 270 127fig., 142n83 §25, line 285 128n50, 142n83 §26 189 – 90, 190n55 §26, lines 305– 6 141n81, 189n54 §26, lines 306 – 7 141n81, 189n54 §29, lines 341– 43 127fig., 128n50 §30, line 354 128n50 §38, line 417 142n87, 162n47 §57, line 496 161n46 §57, line 497 128n50, 142n83 §57, line 504 128n50, 142n83, 161n46 §58, line 515 161n46 §58, line 516 128n50, 142n83 §67, line 540 189n54 §81, line 586 – 87 142n86 §82, line 589 – 90 142n86 §83, line 592– 93 142n86 §84, line 596 – 97 142n86 §96, line 633 142n83, 161n46 §96A, line 636 A–B 142n86

Index of Other Ancient Sources

Inscriptions of Esarhaddon and Ashurbanipal Prism B (ANET, 291) v 54 – vi 1 138 Cylinder C (ANET, 294) i 24 – 46 138 Treaty of Šamši-Adad V with Marduk-zakir-šumi, King of Babylon (SAA 2, Text 1) rev. line 5 142n85 Zakutu Treaty (SAA 2, Text 8) line 2 rev. line 6 rev. line 11 rev. line 16 rev. lines 18 –27 rev. line 20 rev. line 26e

142n85 142n85 142n85 142n85 141fig., 141n82, 160fig., 161n45, 190fig., 190n56 141n81, 191n58 142n85

HITTITE Hittite Laws general discussion §6 §19 §§20 –21 §45 §70 §71 §173b

139n75, 146, 159, 217, 260 246 210n29 210n29 209n27 209n27 209n27 164, 164n53

UGARITIC Aqhat Epic CAT 1.17.V:4 – 8 1.19.I:19 –25

76n65 76n65

Baal Epic KTU 1.6.VI:10 –11 1.6.VI:14 –16

127fig. 127fig.

391

392

Index of Other Ancient Sources

Kirta Epic CAT 1.14.I:7– 9 1.16.VI:43–50

127fig. 76n65

ARAMAIC Sefire Treaties

138, 260, 305

Tel Fekherye Bilingual

138, 305

Versions SEPTUAGINT Gen 47:21 Exod 20:24 Exod 20:24a Exod 24:24b Exod 34:14 Lev 4:8 Lev 18:9 Deut 13:1– 9 (MT 13:2–10) Deut 13:6 (MT 13:7)

Deut 13:6 – 9 (MT 13:7–10) Deut 13:8 – 9 (MT 13:9 –10) Deut 13:8 (MT 13:9) Deut 13:9 –10 (MT 13:10 –11) Deut 13:9 (MT 13:10) Deut 13:9a (MT 13:10a) Deut 13:9b (MT 13:10b) Deut 13:10a (MT 13:11a) 1 Kgs 14:24 Ps 147:19 Ps 151:1 Prov 10:12 Ezek 31:15

109fig. 324fig. 320, 324n151 318fig., 319, 320, 325fig. 244n63 152n25 130 –31 140n79 91n1, 115–20, 121, 122, 125n44, 126n47, 129fig., 131, 136, 137n69, 143, 144, 161n46 146n4 148, 150 147– 49, 163n49, 165, 181n34, 186n49 168, 172, 179fig. 91–92, 118n21, 147– 48, 166 – 67, 169, 177n26, 179, 179fig., 180 – 84, 185 180fig. 171 171 167n5 289n45 132n52 155n29 152n21

Index of Other Ancient Sources

393

SAMARITAN PENTATEUCH Gen 47:21 Exod 20:24 Exod 20:24b Lev 4:8 Deut 13:7

Deut 13:9 –10a Deut 13:10 Deut 13:10 –11

109fig. 310, 320, 324fig. 319, 319fig., 325fig. 152n25 91n1, 115, 116, 117n18, 119, 120, 122, 125, 125n44, 126n47, 129fig., 132, 136 – 37, 143n89, 144, 161n46 180fig. 179fig., 183 170, 172, 179fig.

SAMARITAN PENTATEUCH TARGUM. See under Targumim. SYRIAC PESHIÄTA Gen 7:1–15 Gen 47:21 Exod 20:22–26 Exod 20:24 Exod 20:24b Deut 13:7 Deut 13:9 –10a Deut 13:10 Deut 13:10 –11 Deut 13:10 –11a Deut 13:11 Deut 13:11a Ps 147:19

19n16 109fig. 325n151 323n148, 323–24, 324fig., 324n150 311, 313n124, 321fig., 325fig. 115, 122 180fig. 91–92, 179fig. 179fig. 173 172 172 289n45

VULGATE Deut 13:6 (MT 13:7) Deut 13:8 (MT 13:9) Deut 13:9 (MT 13:10) Deut 13:9 –10 (MT 13:10 –11) Deut 13:9 –10a (MT 13:10 –11a)

115, 115n7, 122 147 179fig., 180fig. 179fig. 173–74

394

Index of Other Ancient Sources

Targumim TARGUM ONQELOS Gen 47:21 Exod 20:24 Exod 20:24b Exod 21:16 Lev 4:8 Deut 13:7 Deut 13:9 –10a Deut 13:10 Deut 13:10 –11 Deut 13:11

109fig. 320, 322n140, 324fig. 319, 319fig., 322, 325fig. 213n38 152n25 134n60 180fig. 179fig. 179fig. 178

TARGUM NEOFITI 1 Gen 26:14 Gen 47:21 Exod 20:22–26 Exod 20:24 Exod 20:24b Deut 13:7 Deut 13:9 Deut 13:9 –10a Deut 13:9 –11 Deut 13:9 –11a Deut 13:10 Deut 13:10 –11

107n36 109fig. 324n151 324fig. 321fig., 322, 325fig. 134n60, 174, 175 147n8, 174 180fig. 174 174, 175 174, 175, 178n28, 179fig. 179fig.

TARGUM PSEUDO-JONATHAN Gen 47:21 Exod 20:24 Exod 20:24b Exod 21:16 Lev 4:8 Deut 13:7 Deut 13:8 –11 Deut 13:9 Deut 13:9 –10a Deut 13:9 –11a

109fig. 310, 320, 322n140, 324fig. 319, 319fig., 322, 325fig. 213n38 152n25 134n60, 137nn70 –71, 135fig., 161n46, 176 176 147n8 180fig. 176

Index of Other Ancient Sources

395

TARGUM PSEUDO-JONATHAN (continued ) 176, 177fig., 179fig. 179fig.

Deut 13:10 Deut 13:10 –11

FRAGMENTARY TARGUM Exod 20:22–26 Exod 20:24 Exod 20:24b Deut 13:7

324n151 324fig. 321fig., 322, 325fig. 134n60

SAMARITAN PENTATEUCH TARGUM, MS A Exod 20:24

319n135

Dead Sea Scrolls and Related Literature DEAD SEA SCROLLS 1QIsaa (Isaiaha)

144, 144n90

1QIsab (Isaiahb)

144n90

1QpHab 1:5– 6 (Pesher Habakkuk)

183n44

4QDeutc (4Q30)

112n1, 117n18, 119 –22, 121fig., 123n35, 129fig., 132, 137, 144

4QLXXLeva (4Q119)

112

4QLXXNum (4Q121)

112

4QHalakhah A (4Q251)

133n56

4QDe 2 ii 16 (Damascus Document e)

133n56

11Q5 (Psalms Scroll a) (Ps 151A:1) col. XXVIII, line 3 col. XIX, line 17

131n52 132n52

11QTa (Temple Scroll a) (11Q19) 51:11–16

124

396

Index of Other Ancient Sources

11QTa (Temple Scroll a) (continued ) 51:16 –54:7 54:8 –55:14 54:19 55 55:15–56 56 56:?–11 56:12–21 66:15–17

124 124, 182 91n1, 119, 122–25, 161n46 170 125, 182 125n43 125 125 132, 134n59

11QTb (Temple Scrollb) (11Q20) frg. 20

122n35

CAIRO GENIZAH COPY OF THE DAMASCUS DOCUMENT CD 5:7b–11 7:14 –15

133, 134n59 183n44

JOSEPHUS Jewish Antiquities Book IV, §194 Book IV, §198 Book IV, §302

55, 55n10 55 55

Rabbinic Sources TANNAITIC Mishnah Abot 1:1 Sanhedrin 2:3 7:10

72n53 79n71 150n15, 180fig., 181fig.

Index of Other Ancient Sources

TANNAITIC MIDRASHIM Mekilta de-Rabbi Ishmael (ed. Lauterbach) on Exod 21:2 95n7 on Exod 21:23–24 272n41 Mekhilta d’Rabbi Ishmael (ed. Horovitz-Rabin) Beshala 7 (on Exodus 15:9) 11n4 Mekhilta de-Rabbi Shimon bar Yoai (ed. Nelson) Tractate Shirata (on Exodus 15:9) 11n4 Midrash Tannaim (ed. Hoffmann) on Deut 13:9

180fig., 181fig.

Sipre Numbers (ed. Horovitz) Behaaloteka 64

11n4

Sipre Deuteronomy (ed. Finkelstein) pisqa 71 pisqa 76 pisqa 77 pisqa 89 pisqa 273

222 222 135fig., 135n61, 162n46 149n14, 180fig., 181fig. 213n39

AMORAIC Babylonian Talmud Pesaim 6b SoÅah 16a Yebamot 62b

11n4 273n42 134n59

Jerusalem Talmud Šeqalim 6.1 SoÅah 5.3 Yebamot 13:2 13c

11n4 11n4 134n59

AMORAIC MIDRASHIM Genesis Rabbah 1:2 3:7

28n29 17n14

397

398

Index of Other Ancient Sources

Exodus Rabbah 30:15

60n23

Song of Songs Rabbah (ed. Dunsky) 1:29

29n29

Midrash Tanuma (ed. Buber) Bereshit 11

28n29

MEDIEVAL RABBINIC EXEGESIS Alshech, Moses, Torat Moshe Deut 13:9

158n41

Ibn Ezra, R. Abraham, Commentary on the Torah Deut 13:7 136, 137n71 Deut 13:9 149n14, 158n41, 167n3, 180fig., 181fig. Deut 13:10 149n14, 167n3, 181fig., 182 Deut 17:6 149n14, 167n3, 181fig., 182 Kimi, R. David (Radak), Commentary on the Torah Gen 24:39 15n11 Midrash Leqa Äov (ed. Buber) Gen 1:1

29n29

Nachmanides, Commentary on the Torah Exod 20:2 59n23 Exod 21–23 59n23 Exod 21:2 60n23 Exod 21:2–11 59n23 Exod 21:12–17 59n23 Deut 13:9 180fig., 181fig. Rashi, Commentary on the Torah Gen 1:1 Gen 37:20 Deut 13:7 Deut 13:9 Jer 18:23

28, 28n29 29n29 135–36 180fig. 156n33

Index of Other Ancient Sources

Greek Sources Aristotle, Metaphysics 1072b19 Book , ch. 8 Book 

53n3 53n3 53n3

Herodotus, The Persian Wars Book III, §§80 – 87 Book VII, §§101– 4 Book VII, §104

56n11 84n82 85n82

Sophocles, Antigone line 449 lines 453–55 line 455

85n82 85n82 85n82

399

Index of Authors Pages where substantial discussion occurs are set in italics. The names of authors writing before 1800 C.E. are set in small caps. Abegg, Martin, Jr., 122n34 Abou-Assaf, Ali, 305n100 Abusch, Tzvi, 219n62 Achenbach, Reinhard, 263n22 Aejmelaeus, Anneli, 91–92, 117–20, 124n38, 132n53, 138n72, 193 Albeck, Chanoch, 17n14, 28n29, 150n15, 182n35 Alexander, Philip S., 322n144 ALSHECH, MOSES, 158n41 Alt, Albrecht, 93n1, 104n32, 205, 206 – 7, 213n39, 283, 296, 300n82 Alter, Robert, 14, 108n38 Arambarri, Jesus, 151 ARISTOTLE, 53n3 Árnason, Jóhann Páll, 25n25 Arneth, Martin, 5n6 Arnold, Bill T., 99n19 Assmann, Jan, 25n25 Auerbach, Erich, 7, 14 Auld, A. Graeme, 260n14 Austin, John, 52n1 Avishur, Yitzhak, 132n52 Bacher, Wilhelm, 135n64 Ballentine, Samuel E., 151n18 Barfield, Owen, 14 Barr, James, 22n22 Barthélemy, Dominique, 116n12 Baumgarten, Joseph M., 133n55, 133n56 Beckman, John C., 100n20, 210n31 Beentjes, Pancratius C., 270n40 Begg, Christopher T., 228n9

Begrich, J., 75n60 Bellah, Robert N., 25n25 BEN ISAAC, SOLOMON. See RASHI Ben Yehuda, Eliezer, 151n17 BEN ZAKKAI, YOANAN, 273 Ben Zvi, Ehud, 258n7 Bendavid, Abba, 124n40 Berlin, Adele, 17n13, 50n1 Berliner, Abraham, 28n29, 136n65, 181n33 Berman, Joshua A., 6n13 Bernstein, Moshe J., 68n39 Bertholet, Alfred, 117n17 Bewer, Julius A., 260n10 Biale, David, 37n51 Blenkinsopp, Joseph, 81n74 Bloch, Renée, 225n5 Bloom, Harold, 39n55 Blum, Erhard, 282n23 Bonhoeffer, Dietrich, 27n28, 43n7 Bordreuil, Pierre, 305n100 Borger, Rykle [Riekele], 31n32, 184n46, 301n87 Bratsiotis, Nikolaus P., 105n33 Braulik, Georg, 70n46, 79n70, 91n1, 168, 194n67, 231, 260n14, 263n21, 267, 268n36 Brettler, Marc Zvi, 17n13, 21n21, 64n32, 70n44, 270n40, 280n13 Brin, Gershon, 124n41, 212n35 Brockelmann, Carl, 97, 98n16, 99 Broshi, Magen, 133n55, 134n59 Brown, Francis [as BDB], 108n37, 177n26, 240n52

Index of Authors

Brownlee, William H., 183n44 Buber, Martin, 42n5 Buber, Salomon, 28n29, 29n29 Buchholz, Joachim, 71n49 Budd, P. J., 75n60 Budde, D. Karl, 148n10, 163n49, 166, 167n5, 168, 191, 227n8 Burke, Kenneth, 14, 46n8 Burkert, Walter, 56n14 Carmichael, Calum M., 197, 199, 224 –55 Carr, David M., 22n23, 61n27 Carrière, Jean-Marie, 57n16 Cassuto, Umberto, 15–16, 17n14, 19n19, 20n20, 21n21, 231–32 Cazelles, Henri, 115n9 Chavel, Charles Ber [ayim Dov], 28n29, 136n65, 181n33 Childs, Brevard S., 21n22, 23, 205n8, 225, 244n63, 283 Choi, John H., 99n19 Clarke, Ernest G., 135n62, 161n46, 177n25, 213n38, 310n114, 319n137 Clements, Ronald E., 275n44 Cogan, Mordechai, 138n74 Cohen, Stuart A., 57n17, 84n80 Conrad, Diethelm, 316n131 Cooper, Alan M., 158n41, 269n36 Cover, Robert M., 32n37 Crawford, Sidnie White, 112n1, 121n31, 121n32, 122n33 Crüsemann, Frank, 55n7, 284 Crystal, David, 96n12, 98n17, 100n21 Dahood, Mitchell, 154n26 Dällenbach, Lucien, 40n1 Dalley, Stephanie, 46n9, 294n65, 298n73, 305n97, 305n98, 305n99 Danby, Herbert, 73n53, 150n15 Daube, David, 80n73, 205, 206, 208 –10, 212n35, 213, 226n6, 249n86, 250 –51 David, M., 213n39 Day, John, 76n65 Delitzsch, Friedrich, 167n5

401

Dietrich, Manfried [as CAT/KTU], 76n65, 127n49 Díez Macho, Alejandro, 134n60, 147n8, 175n24, 322n143 Dillmann, August, 116n15, 137n68, 137n71, 148n10, 149 –51, 165, 167n3 Dion, Paul E., 116n15, 135n62, 137n70, 138n73, 141n81, 146n2, 148n11, 160n42, 163n49, 164n51, 167n6, 168, 180n31, 186n48, 191, 231n15, 305n101, 307n105 Dogniez, Cécile, 116n14, 183n41 Dorff, Elliot N., 272n41 Drazin, Israel, 319n136 Driver, Godfrey R., 31n32 Driver, Samuel Rolles, 22n23, 70n47, 217n58, 230n13, 256, 317n132 Dunsky, Samson, 29n29 Ehrlich, Arnold B., 311n120 Eichler, Barry L., 219n62, 226n6, 294n63 Eisenstadt, Shmuel N., 25n25 Eising, H., 313, 314n126 Eissfeldt, Otto, 205n8, 290n47, 291 Elazar, Daniel J., 56n12, 57n17 Elliger, Karl, 115n8 Elon, Menahem, 241n53 Emerton, John A., 21n21 Emmet, Dorothy M., 52n2 Epstein, Israel, 273n42 Eslinger, Lyle, 225n3 Even-Shoshan, Abraham, 151n20 Ewald, Heinrich, 101n25 Fadhil, A., 302fig., 302n87 Falk, Zeev W., 169n18, 193n64 Finkelstein, Jacob J., 29, 32n35, 38n53, 41n3, 57n16, 60n24, 164n53, 216, 226n6, 247, 296, 298n74 Finkelstein, Louis, 135n61, 149n14, 162n46, 181n34, 213n39, 222nn70–71 Fischer, Bonifatius, 115n7, 147n8, 173n23

402

Index of Authors

Fishbane, Michael, 19n19, 21n22, 23, 32n36, 34n43, 34n44, 37, 64n31, 133n58, 184n44, 212n37, 220n66, 221n67, 225n5, 226n7, 249, 258n7 Fisher, Loren, 127n49 Fitzmyer, Joseph A., 123n35 Flint, Peter, 122n34 Foster, Benjamin R., 46n9 Foucault, Michel, 39n54 Frankel, Zacharias, 116n15, 118 Frankena, Rintje, 138n73, 160n42, 185n48 Friedrich, Johannes, 164n53 Fromm, Erich, 14 Frye, Northrop, 14 Frymer-Kensky, Tikva, 73n54

Haas, Peter J., 32n38 Habel, Norman C., 21n21 Hagedorn, Anselm C., 202n4 Halbe, Jörn, 269n36 Halpern, Baruch, 57n15, 68n41, 71n51, 225n4, 263n21 Hameen-Anttila, Jaako, 186n50 Hammer, Reuven, 181n34 Haran, Menahem, 34n44, 152n24, 258n7, 267n29 Harl, Marguerite, 116n14, 183n41 Hartman, Geoffrey H., 37n48, 226n7 Harvey, Paul B., 202n4 Hatch, Edwin, 147n7 HEGEL, GEORG WILHELM FRIEDRICH, 5 Heger, Paul, 312n121 Gall, August Freiherr von, 115n6, 170n19 Heinemann, Joseph [Isaac or Yizhak], 135n63, 184n45, 241n54 García-López, Félix, 168n14 Heller, Chaim, 323n146 García Martínez, Florentino, 123n35 Hempel, Charlotte, 133n56 Garr, W. Randall, 99n18 Hempel, Johannes, 115, 168 Gebhardt, Carl, 13n9 HERODOTUS, 55n11, 84n82 George, Andrew R., 61n26, 294n64, Herr, Moshe David, 73n53 304nn93– 94 Hobson, Deborah W., 57n15 Gertz, Jan Christian, 70n45, 71n49 Hoffmann, David Zvi, 162n48, Gesenius, Heinrich Friedrich 180fig., 180n32, 181fig., Wilhelm, 156n33, 289n44 182n36, 268n35 Gevirtz, Stanley, 127n49 Hoffner, Harry Angier, Jr., 139n75, Gibson, John C. L., 98n17 161n43, 164n53, 209n27 Gildersleeve, Basil L., 97n14 Hoftijzer, Jacob, 317n132 Ginsberg, H. Louis, 33n44, 258n7, Hogg, James Edward, 216n51 267n30, 269n36 Hölscher, Gustav, 230n14, 259n10 Goldstein, Bernard R., 269n36 Hoppe, Leslie J., 71n49 Goshen-Gottstein, Moshe, 90 Horovitz, Saul, 11n4 Gottlieb, Isaac B., 213n39 Horowitz, Wayne, 304n95 Greenberg, Moshe, 8n3, 29n30, Horst, Friedrich, 116n15 33n39, 41n3, 59n21, 77n67, Hurowitz, Victor Avigdor, 293– 94, 79n72, 226n6, 228n10, 247, 296 302n87 Greengus, Samuel, 219n62 Greer, Rowan A., 64n31 IBN EZRA, ABRAHAM, 15, 136 –37, Grossfeld, Bernard, 319n136 136n67, 137n71, 149n14, 158n41, Guilding, A. E., 231n16 167n3, 180fig., 181fig., 182, Gunkel, Hermann, 19n19, 20n21, 212n36 22n23, 207, 293n56 IBN JAN, JONAH (ABU AL-WALD Güterbock, Hans G., 139n75, 161n43 MARWN), 211, 212n35 Gzella, Holger, 102n28

Index of Authors

Jackson, Bernard S., 96n11, 104n32, 199n5, 205, 206, 213, 218n60, 281n18 Jaffee, Martin S., 37n50, 226n7 Janowski, Bernd, 156n34, 157n36 Jaspers, Karl, 25n25 Jastrow, Marcus, 175n24 Jenni, Ernst, 154n28, 165 Jenson, Philip, 263n22 Jepsen, Alfred, 93n1 Jeremias, Jörg, 50n1 Jirku, Anton, 93n2 Johnstone, William, 199n6 Jongeling, Karel, 317n132 Joosten, Jan, 92 JOSEPHUS, 55–56 Joüon, Paul, 97– 98, 99n19, 101n26, 210n31, 289n44 Junker, Hubert, 183n43 Kaddari, Menahem Zevi, 100n21 Kahan, Yitzhak, 54 Kalimi, Isaac, 272n41 KANT, IMMANUEL, 53–54 Kasher, Menaem Mendel, 29n29 Kaufman, Stephen A., 71n48, 215n48, 225n4, 229n12, 231, 233n23, 250, 268n34 Kautzsch, Emil, 156n33, 289n44 Khan, Geoffrey A., 102n26 Kierkegaard, Søren, 274 Kikawada, Isaac M., 21n21 KIMI, R. DAVID, 15 Kittel, Rudolf, 115n8 Klein, Michael L., 134n60, 322n142 Klostermann, August, 148n10 Knierim, Rolf, 154n27, 157n35 Knohl, Israel, 220n65 Knoppers, Gary N., 62n29, 77n68, 78n69, 102n30, 202n4, 262n21 Köckert, Matthias, 198n3 Koehler, Ludwig [as HALOT ], 317n132 König, Eduard, 116n15, 137n69, 137n71, 143n89 Koster, M. D., 322n141

403

Kovacs, Maureen Gallery, 47n10 Kratz, Reinhard G., 277n2, 291n52 Kraus, Hans-Joachim, 12n6 Krochmal, Nachman [1785–1840], 323n146 Kübel, Paul, 5n6 Kugel, James L., 64n31 Kutscher, Edward Yechezkel, 144n90 Lambert, W. G., 302fig., 302n87 Landsberger, Benno, 217n54 Langer, Gerhard, 222n71 Lauterbach, Jacob Z., 95n7, 272n41 Le Boulluec, Alain, 320n138 Lehrman, Simon Maurice, 60n23 Lemche, Niels Peter, 104n32, 280n13 Levene, Nancy K., 12n7 Levenson, Jon D., 4n2, 222n72 Levi, Jaakov, 126n45 Levin, Christoph, 94n6, 200n9, 277–78, 279n12, 316n131 Levine, Baruch A., 156n34, 157n36, 219n64 Levinson, Sanford, 32n37 Lieberman, Saul J., 241n53 Lieberman, Stephen J., 184n46 Lipi ski, Edward, 95n10 Liverani, Mario, 186n50 Locher, Clemens, 231n15 Lockshin, Martin I., 136n66 Lodge, Gonzalez, 97n14 Loewenstamm, Samuel E., 19n17, 21n21, 31n33, 50n1, 76n64 Lohfink, Norbert, 64n33, 79n70, 79n72, 81n75, 81n76, 83n78, 83n79, 85n83, 94n4, 198, 260n14, 261n17, 262n21, 263n21, 268n35, 268n36, 290n46, 309n113 Löhr, Max, 116n15 Lorberbaum, Menachem, 5n9, 57n17, 79n71 Lowy, S., 132n54 Luckenbill, Daniel David, 184n46 Lutz, Donald S., 6

404

Index of Authors

Machinist, Peter, 25n25, 41n3, 56n13 Mackenzie, Roderick A. F., 123n36 Macmurray, John, 42n5 Mailloux, Steven, 32n37 MAIMONIDES, MOSES, 13, 150n15 Maine, Henry Sumner, 228n11 Malessa, Michael, 102n28 Malul, Meir, 297, 298n74, 301n86 Maori, Yeshayahu, 313n124, 323n146, 324n150 Marti, Karl, 116n15 Matthews, Victor H., 71n50 Mayer, Werner R., 100n23 Mayes, A. D. H., 66n35, 70n47, 72n52, 117n16, 161n46, 168, 225n4, 230n14, 249, 260n14 McBride, S. Dean, 55n7, 313, 314n126 McCarter, P. Kyle, 21n21 McCarthy, Carmel, 90n1, 91n2, 91n3, 117n18 McConville, J. Gordon, 197, 198, 224n3, 256 – 75, 275n44 McKane, William, 156n33 Meade, David G., 68n39 Meek, Theophile, 107n35 Melville, Sarah C., 190n56 Merendino, Rosario Pius, 169n18, 230n14, 247 Mettinger, Tryggve N. D., 314, 316n131, 326n157 Mielziner, Moses, 241n53 Miles, John C., 31n32 Milgrom, Jacob, 35n45, 72n52, 107n35, 157n36, 249, 250n91, 255n105, 268n35, 272n41, 273n42 Millar, J. G., 263n22 Millard, Alan R., 305n100 Moberley, R. W. L., 275n44 Moran, William L., 145n1, 245n69 Morris, Herbert, 52n1 Morrow, William Sproull, 225n4, 231n15, 235n33

Muraoka, Takamitsu, 97– 98, 99n19, 101n26, 102n27, 124n40, 210n31, 289n44 Myers, Jacob M., 156 NACHMANIDES (R. MOSES BEN NACHMAN), 59n23, 180fig., 181fig., 182n38 Nelson, W. David, 11n4 Nicholson, Ernest W., 229, 277n3 Nielsen, Eduard, 21n21, 22n23, 117n15 Nissinen, Martti, 119n27 Noonan, John T., 224n3 Noth, Martin, 104n32, 205n8, 237, 283, 292n56 O’Connor, Michael Patrick [also as IBHS], 98, 99n19, 100n21, 100n22, 101n26, 108n38, 133n57, 151, 152n21, 154n26, 154n28, 157n37, 177n26, 210n31, 212n34 Oppenheim, A. Leo, 33n41, 160n42, 186n48 Orlinsky, H. M., 116n13 Oshima, Takayoshi, 304n95 Osumi, Yuichi, 216n50, 284 Oswald, Wolfgang, 278n8 Otto, Eckart, 57n16, 59n19, 71n50, 72n52, 95– 96, 95n8, 95n10, 119n27, 138n73, 141n80, 141n81, 182n40, 191n59, 192n60, 192n61, 198, 198n3, 199n5, 200n9, 205, 215n49, 215n50, 219n62, 268n34, 275n44, 269n36, 280n14, 281n18, 283, 291, 292, 300n82, 303n90, 312n122, 313 Pakkala, Juha, 91n2, 117n15 Pardee, Dennis Graham, 151 Parker, Simon B., 76n65, 127n49 Parpola, Simo, 128n50, 139n75, 139n76, 141n82, 142n85, 142n87, 146n3, 161n43, 161n44, 161n45, 162n47, 186n50, 186n51, 186n52, 188n53, 190n55, 190n56, 305n101

Index of Authors

Paton, L. B., 216n51, 260n10 Paul, Shalom M., 296 Pérez Fernández, Miguel, 124n40 Perlitt, Lothar, 83n78, 117n17, 126n47, 263n21 Petschow, Herbert, 58n19, 59n23, 71n48, 226n6, 231, 247 Ploeg, J. P. M. van der, 123n35 Polka, Brayton, 12n7, 38n53, 40n2, 42n5 Polzin, Robert, 32n36 Pons, J., 260n14 Pressler, Carolyn, 72n52 Preus, J. Samuel, 14n9 Prijs, Leo, 118n23, 322n140 Pritchard, James B. [as ANET], 46n9, 138n74 Puukko, Antti Filemon, 117n17 Qimron, Elisha, 122n35, 134n59, 144n90 Quinn, Arthur, 21n21 Raaflaub, Kurt, 56n14 Rabin, Israel A., 11n4 Rad, Gerhard von, 267n29 Radcliffe-Brown, A. R., 52–53, 85 RADAK. See KIMI, R. DAVID Rakover, Nahum, 234n29 RAMBAN. See NACHMANIDES RASHI (R. SOLOMON BEN ISAAC), 28, 28n29, 135–36, 156n33, 180, 181n33 Redford, Donald B., 252n101 Redpath, Henry A., 147n7 Rendsburg, Gary A., 21n21 Reviv, Hanoch, 72n52 Riesener, Ingrid, 104n32 Ringgren, Helmer, 151n17, 152n24 Robertson, Edward, 313 Rofé, Alexander, 62n29, 72n52, 102n30, 125n42, 230n14, 232 Rogerson, John W., 12n6 Römer, Thomas, 66n34, 268n35 Rosenbaum, Morris, 136n65, 181n33 Rosett, Arthur, 272n41

405

Roth, Martha T., 41n3, 50n1, 58n18, 59n20, 60n25, 62n28, 74n57, 76n66, 164n53, 301n87 Rothenbusch, Ralf, 299 Rudolph, Wilhelm, 115n8 Rüterswörden, Udo, 62n29, 70n46, 83n79, 91n2, 194n66 Sader, Hélène S., 305n100 Sanders, James A., 21n22, 23, 131n52, 225 Sanders, Seth, 304n95 Sandevoir, Pierre, 320n138 Sarna, Nahum M., 8n3, 19n18, 19n19, 21n22, 23, 33n40, 225n5 Schäfer-Lichtenberger, Christa, 81n75 Scheil, Vincent, 296 Schmid, Konrad, 5n6 Schmitt, Hans-Christoph, 278n8, 312n122, 316n131 Schneidau, Herbert N., 14 Scholem, Gershom, 37, 226n7 Schottroff, Willy, 313, 314n126 Schwartz, Baruch J., 16n12, 32n36, 228n10 Schweizer, Harald, 98n17, 108n39 Schwienhorst-Schönberger, Ludger, 104n32, 205, 214n44, 215n50, 283– 84, 312n122, 324n151 Scriba, Albrecht, 183n43 Seebass, Horst, 91, 169n18, 193–94 Seeligmann, Isaac [Isac] Leo, 167n4, 168, 258n7 Seidel, Moshe, 270n40 Seitz, Gottfried, 117n16, 125n44, 126n45, 126n46, 126n47, 138n72, 161n46, 168, 182n39, 193n62, 230n14, 247 Shestov, Lev, 5 Silbermann, Abraham Maurice, 136n65, 181n33 Sjöberg, Åke W., 61n26 Ska, Jean-Louis, 57n16, 96n11, 200, 277n3, 277n4, 314n128 Skaist, Aaron, 52 Skinner, John, 19n17, 22n23, 109n40

406

Index of Authors

Skweres, Dieter Eduard, 268n35 Smith, Morton, 33n42, 37n52, 68n39, 202n4, 226n7, 309n113 Smith, Page, 41n4 Smyth, Herbert Weir, 97n14 Soden, Wolfram von, 100n23 Sokoloff, Michael, 107n36 Sonnet, Jean-Pierre, 40n1, 198 SOPHOCLES, 85n82 Speiser, Ephraim A., 46n9, 108n38, 109n40, 246n72 Sperber, Alexander, 134n60, 178, 178n27, 319n136 SPINOZA, BENEDICTUS DE [BARUCH], 4, 11–15, 24, 26n27 Sprinkle, Joe M., 281n18 Spycket, A., 305n100 Stackert, Jeffrey, 255n105 Stamm, Johann Jakob, 156n34, 313, 314n126, 314n127 Steiner, Richard C., 211n33 Stemberger, Günter, 135n64 Sternberg, Meir, 4–5, 7–39, 20n20, 255n105 Steuernagel, Carl, 117n17 Stevens, Wallace, 3, 39, 40 Steymans, Hans Ulrich, 61n27 Strack, H. L., 135n64 Strauss, Leo, 12n6, 12n7 Suzuki, Yoshihide, 228n9 Tadmor, Hayim, 25n25, 138n74, 228n10 Tal, Abraham, 109n41, 115n6, 170n19, 319n135 Talmon, Shemaryahu, 216n53, 270n40 Théodor, Julius, 17n14, 28n29 Thompson, Thomas L., 280n13 Tigay, Jeffrey H., 117n15, 126n47, 132n54, 137n69, 218n61, 221n68, 261n18, 293n57, 294n66, 295n67, 312n121, 313n124, 314n128, 325, 326n155, 328n159 Tillesse, Georges Minette de, 228n10 Toeg, Arie, 234n29, 312n121, 314n128

Tomback, Richard S., 317n132 Toorn, Karel van der, 73n55 Tov, Emanuel, 109n40, 112n2, 113n3, 167n5, 183n42 Tropper, Josef, 123n36, 124n37 Uffenheimer, Benjamin, 25n25 Ulrich, Eugene, 122n34, 123n35 Unterman, Jeremiah, 16n11 Van Seters, John, 66n36, 93– 97, 95n10, 104 – 6, 197, 199 –200, 206n12, 266n28, 268n36, 276 –330 Vanstiphout, Herman L. J., 61n26 Veijola, Timo, 90n1, 91n2, 91n3, 119n26, 122n34, 138n73, 146n2, 162n46, 256n3, 258n6 Veldhuis, Niek, 61n26, 302n87, 303n92 Vermes, Géza, 21n22 Viberg, Åke, 94n5, 104n32 Vliet, W. M. van, 115n7, 173n22 Voegelin, Eric, 14, 56n13 Vogt, Peter, 197– 98 Waltke, Bruce K. [also as IBHS], 98, 99n19, 100n21, 100n22, 101n26, 108n38, 133n57, 151, 152n21, 154n26, 154n28, 157n37, 177n26, 210n31, 212n34 Walzer, Michael, 5n9, 57n17, 79n71 Watanabe, Kazuko, 128n50, 139n75, 139n76, 141n82, 142n85, 142n87, 146n3, 161n43, 161n44, 161n45, 162n47, 186n50, 186n51, 188n53, 190n55, 190n56 Weber, Max, 85– 86 Weinfeld, Moshe, 25n25, 35n46, 67nn37–38, 69n43, 71n49, 72n52, 73n54, 74n58, 77n68, 116n15, 126n48, 138n73, 145n1, 146, 148n11, 160n42, 163n49, 166n1, 167n4, 168, 184 – 85, 186n48, 191n59, 206n13, 222n71, 230n14, 234n31, 235n32, 252n99, 267n29 Weiss, Meir, 15n11

Index of Authors

Weitzman, Michael P., 5n4, 313n124, 323n147, 324nn148 – 49 Welch, Adam C., 229, 259n10 Wellhausen, Julius, 83n78, 269n36, 276n1, 292n56, 295, 307– 8, 326 Wenham, Gordon J., 21n21, 224n3 West, Martin L., 56n14, 84n81 Westbrook, Raymond, 31n34, 56n14, 197, 201–23, 281n18 Westermann, Claus, 21n21 Wevers, John William, 115n5, 117, 118n21, 120, 171n20, 172n21, 177n26, 180n30, 319n134, 321n139, 324n151 White, Sidnie Ann. See Crawford, Sidnie White Wiener, Harold M., 203n5, 230n13 Wilcke, Claus, 214n45, 219n62 Williams, Ronald J., 99n20, 210n31

407

Williamson, H. G. M., 156, 157n38 Wilson, Robert R., 62n29 Wiseman, Donald J., 128n50, 168n7 Woude, A. S. van der, 123n35 Wright, David P., 61n27, 96n11, 199n5, 285n39, 297n72, 298n74, 299n75, 300n81, 301n87, 302n88, 303, 306 Yadin, Yigael, 37n49, 122n35, 124n41, 125n42, 125n43, 226n7 Yalon, Henoch [Hanokh], 150n15, 182n35 Yaron, Reuven, 209, 210n30 Zahn, Molly M., 61n27, 93n2, 123n35, 124n41, 295n67 Zohar, Noam J., 5n9, 57n17, 79n71

Index of Key Words and Phrases A selective listing of significant words and phrases in the ancient languages (arranged by general chronological priority from earliest to latest). With a few exceptions, single words are listed by lexical form ( for Akkadian, according to the normalization given in CAD, with adjustments made for Neo-Assyrian [see 186n50]), while phrases are listed by inflected form. The Hebrew and Aramaic section is arranged alphabetically, with related expressions gathered as subentries. It primarily indexes biblical texts but also includes key technical terms and exegetical formulas drawn from Second Temple, rabbinic, and medieval literature.

Sumerian eduba

60

tukumbi

123

Akkadian adê

138, 168, 187fig., 188fig. a šu mar ummšu 127fig., 142, 161 aplu 100n23 aööatu 105n33, 142n87, 162n47 awtu abutu l Åbtu 187 awâtya ša ina narîya ašÅuru 61– 62 awâtya šqurtim 62 baöû birtu ina bertkunu

ina bertuššunu

bt Åuppi

duku (Bab. dâku) 141n81, 188n53, 189n54, 191 piru/biru rtu

103n32 142n87, 162n47

ilu ina maar ilim

74n57. See also

nö ilim

  

73n57, 313n123. See also

 

160 141n81, 191n58. See also under  127fig.

60 – 61

kar u kittum u möarum

127fig. 58, 77

ma u

127fig.

Index of Key Words and Phrases

maû 146 mru 127fig., 146 mr öili 14 See also a šu mar ummšu mrtu 146 möaru. See kittum u möarum; öarrum: öar möarim

409

rabû raggimu ridûtu

127fig. 146, 186n50 186n50

sinništu

105n33

abtu

141n81, 188n53, 189n54

narû. See under awtu pnu parsu pû puzzuru

127fig. 127fig. 186n50 139n75, 159, 185

öarru 127fig., 306n103 öar möarim 59 öaÅru. See under awtu šumma 123, 186n50 öumöunu zaraöunu 189 öquru. See under awtu

qabû l taqabbâni

185 187 (see also 139, 159, 185)

ummu

127fig.

Hittite (l ) munnai– tya/i–

wemihya–

139n75, 159 209n27

209n27

Ugaritic a . . . bn um

k

127fig.

122–23, 123n36, 124n37

Hebrew and Aramaic  121n32, 123n35,   +     

211n33 131n52 147, 163 17, 17n13, 44, 99 145n1 154, 154n27, 160 126n45, 210n31, 211–12, 212n35

   

 

154n28 45 149n14 125, 125n44, 126n45, 129, 132n52, 133n57, 135fig., 136, 137n71, 193, 213 133

Index of Key Words and Phrases

410

 % . . .   % . . . 

 /    / %     /   %                     *         

 

115, 121–22, 121fig., 129, 131n52, 132 114 –15, 121–22, 121fig., 126, 128fig., 129, 131, 131n52, 132, 135fig., 136, 142, 161, 161n46 135, 137n71, 161n46 135–36, 162n46 133 129 –31, 132 177fig. 175 105, 133, 133n57, 208 – 9, 213 19 73n1 44, 152n21, 265, 266 44, 155, 156, 157, 266 325 274 22, 44, 99, 244, 313n123 73n57, 110fig. See also Akk. ina maar ilim 327fig. 49, 124, 124n39, 124n41 121n32, 123n35, 133, 211n33 101n26 311n120 328fig. 274 266, 290 105, 105n33, 114, 121–22, 133–34, 133n57 114, 142, 162

 242  165  309 (direct object marker)

 274 (prep.) ( ) 317n132, 319fig., 321fig.

 101, 101n25, 108 – 9, 111, 158

 17, 17n13   309, 318fig., 322,    %$ %    %   -" " %           () 

326, 327fig., 328fig. 155, 156 155, 156 265, 271fig. 136 181fig. 265 193. See also under  213 319 265, 309 154n27 99 48 309, 318fig., 321fig., 327fig., 328fig. 319fig. 265, 266 (see also 258n7) 114, 122 133

 242– 43   236, 241– 43, 255n105

 133, 149n14, 158n41, 181fig., 321fig.  208, 213  214  19

Index of Key Words and Phrases

 145n1  -" " 76, 147n7, 149n14,

    

159n41, 204, 287– 90, 288n43, 289n45 321fig. See also   128fig. 183 99

/  133, 134    133. See also under 

 45, 240  133n57   145n1

 167, 184, 191, 191n57, 193 141n81, 147, 149n14, 166 – 93, 181fig.

  

 122–24, 210 –11, 210n31, 211n33, 212, 212n35, 315

  " 265, 309, 316fig., 318, 318fig.

    269n36   " 309, 311–28, 311n120, 313n123, 314n126, 314n127, 316fig., 317, 318fig., 320, 322n140, 327fig., 328fig. See also    " " 133, 271fig.    19  97

       % 

270 269n36 128fig., 313n123 147, 163, 164n50

411

$  $  $        

239 165 155–56 274 242 147, 163 242 158n41 289n45 145 165

 176 – 78,    . . .          $         

 

$

 



 

177n26, 208 – 9, 212 67n37, 154n28, 181fig. 44, 311n120, 325, 327fig. 271fig. 327fig., 328fig. 73n57. See also Akk. nö ilim 220 274 183 290 219 59n23, 110, 110fig. 327fig. 145n1 327fig. 75 128fig.

133–34 258n7 133–34 122, 124, 124nn38 – 41, 240. See also Akk. šumma; Ugaritic k 108, 266

Index of Key Words and Phrases

412

 274, 288, 290, 309, 316fig., 321fig., 327fig. See also under    149 –57. See also

     154n28  -!  214   156 –57, 156n34, 157n36

 133, 149n14, 181fig.

   133.

See also / 

 101, 101n26, 111, 174

 44, 157,             

289n45, 290 145– 65, 168, 181, 185 234n29 189n54, 220 261 244 105, 133

( )  321fig., 322. See also ;  ›  19  /  183n44  128fig.  219  174, 177fig., 178,          

182, 191n57, 208, 211n33, 213, 240 309, 314n128, 316fig. 316fig. 309, 310, 316fig., 318fig. 17, 155, 156, 156n33 147n7 93n1, 101n26, 126n45, 208, 212, 213, 214

 % " % *    $       $  $ $



249 152n21 309 133n57, 208 – 9, 212, 213 261 289n45 310 265, 271fig., 314n128, 316fig., 317, 317n132, 318 309, 316 –20, 327fig., 328fig. 107n36 133, 204, 287– 90, 289n45 240 258n7 290

           %

286n41 148, 167– 68, 183 164n50 128fig. 107, 111, 111fig. 128fig., 165 128fig., 189n54, 290

  /   

183n44 152n24 178, 181fig. 114, 162, 181fig., 193, 194

 ! ! 59n23, 93– 95, 94n7, 111, 111fig. 93, 94n7, 103n32, 111, 111fig. See also ()   " 109fig., 109n40, 126n45, 133n57, 313n123, 327fig.  109fig. () 126n45, 133n57. See also under 

 

Index of Key Words and Phrases

  149n14, 158n41,   %         *    /   0 " Í "  

177fig., 181fig., 182 181fig. 154n26 155, 156, 158, 165 17 145– 65, 154n26. See also   ;

 

244 257n6, 163– 64, 309 316fig. 309, 318fig. 327fig. 273 102 183n44 213, 213n39 126n45 42 42, 154n28 133 133n57, 309, 316fig., 318fig.

- 274  319fig.  271fig., 327fig. See also ;     265  164n50  ›- ! 150n16, 154, 154n27, 158, 160, 165  243

 %     

265, 309, 318fig. 22, 44 243 321fig. 266

 ! ! 319fig.

413

  $ %$   %  

290 290 176, 177fig. 131n52 135 154n28 211n33 93– 95, 93n1, 95n10, 106 – 8, 111, 111fig.  % 107, 111, 111fig.   See under   133  133n57, 141n81, 191n58. See also Akk. ina bertkunu  141n81, 191n58, 213. See also Akk. ina bertkunu

  128fig., 271fig., %         ( . . .)  

320 177fig. 178 163– 64 271fig. 17 133n57 114, 142, 193

‡ 100 –104, 103n31     322n140      

133 155, 156 313n123 73n57. See also Akk. nö ilim 220 265 286n41 214

        %    %  265   319fig., 322n140, 323

Index of Key Words and Phrases

414

 $ -  ›*  ! ›!

126n45, 319fig. 175 214, 215 309, 318fig., 323n148  › 265, 309, 311n120, 313n123, 316fig., 318fig., 320, 321fig., 322n140, 327fig., 328fig.   326, 327fig.

     % 

156, 183 147, 163, 168 145n1 149n14, 158n41, 181fig.  22    290  181fig.

 152n21  290  72n53, 75, 150n15

Greek

ajnagravfw ajpokteivnw ajpoqnhv/skw

131 115, 131 148, 166, 171–72, 179, 181fig., 183 55n10 172 172

diavtaxi"

55n10

ajdelfhv ajdelfov" ajnaggevllw

ejn panti; tovpw/, ou| a]n ejponomavsw to; o[nomav mou ejkei' 318, 320 kai; h{xw pro;" se; kai; eujloghvsw se 318, 320 katadoulovw 109fig.

liqobolevw

172

mhvthr

115, 131

novmimo~ novmo~

85n82 85n82

oJlokauvtwma o[noma

320 320, 322

pai'" pathvr politeiva

109fig. 115, 131 55, 55n10

skepavzw

147, 147n7

ceivr

172

Syriac $%& 173  321fig.

0 12 321fig., 323n148

Index of Key Words and Phrases

415

Latin et occultes eum

147

obruo

173–74

frater tuus filius matris tuae 115n7

sed statim interficies 173

neco

verum sensum

173–74

13, 13n9

Index of Subjects Abraham, 130, 252n97, 325n153 academic biblical studies, discipline of Classics, relation to, 56 –58 comparative legal history, relation to, 56 –58, 203, 292 higher criticism, 10, 16, 113 humanities, relation to the, 10, 14 methodologies of, 3–6, 7–24, 32, 89–92, 112– 44, 197–200 rabbinics, relation to, 137 Wissenschaft des Judentums, relation to, 118 See also Assyriology; Bible editions (Hebrew); comparative Semitic philology; diachronic analysis; exegesis; form criticism; reception history; source criticism; synchronic analysis; textual criticism accusative. See grammar: accusative; grammar: grammatical patient Adam. See Eden, Garden of addressee(s) of altar law, 326, 327fig. of apostasy law(s), 113–14, 136, 140 – 43 in Deut 13:9, 147, 155– 65, 158n41 in Deut 13:10, 90, 166, 171–79, 192– 93 in Deut 17:4, 183 of Decalogue, 50 –51 of Deut covenant, 46 – 47 God as, 157 of Neo-Assyrian loyalty oath, 138 – 43, 159 – 61, 185– 92 Numeruswechsel and, 228, 324fig. See also grammar: deixis adê. See loyalty oath

adultery, 192, 306n103. See also sex, laws concerning affected object, 93–111, 102n29, 103n31 See also ellipsis: of affected object; grammar: accusative Ahab, 80, 242 Ahaz, 299, 306 Akkadian (language) cognate evidence of, 73n57, 105n33, 123, 126, 127fig., 140n78, 141n81, 157n34, 191, 191n58 dialects of, 301n87 grammar of, 100, 100n23, 123n36, 186n50 See also Assyriology; cuneiform law Alexandrian Judaism, 118, 144 altar law of the Covenant Code, 35–36, 276 – 80, 281, 307–28 of Deuteronomy, 229, 276 – 78, 309, 320 of the Holiness Code, 229 See also semantics: of altar (); semantics: of place (); theophany altars, number of, 310, 314n128, 328 Ämtergesetze. See Laws of Public Officials Antiochus IV, 193 apodictic law apodictic prohibition in Gen 2:17, 44 governing capital cases, 59n23 in the Covenant Code, 205n8, 207, 297n72, 303n90, 316n131 in Deut, 230n13 governing levitical priests, 80 See also casuistic law

Index of Subjects apodosis (then-clause in legal statement) function of waw in, 211 of law of apostasy, 114, 125, 137n71 of law of kidnapping, 209 in Neo-Assyrian loyalty oath, 187– 89 repetition of, marking interpolation, 215 See also clauses; protasis; syntax aporia examples of, 17–23, 35–36, 56 –58, 113, 175–78, 257n6, 258n7, 286 – 87 significance of, 9 –17, 24, 30 –39 See also diachronic analysis; literary and editorial devices apostasy, laws concerning cited in the Temple Scroll, 124 –25 defined in terms of deviation from Torah, 81 defined in terms of prohibited cultic objects, 244n63 defined in terms of unconditional loyalty to Yahweh, 89, 113–14, 138, 143, 145, 161 due process and, 90, 166 – 68, 182– 83, 193–94 jurisdiction over, 74 repetition of, in Deut 13 and 17, 227, 227n8 semantics of, 210 –12 summary execution as penalty of, 155, 157, 165, 193, 194 See also addressee(s): of apostasy laws; disloyalty; summary execution apotropaic slaughter, 219. See also Passover law: paschal offering; slaughter Arabic lexicography, 156n34, 211n33, 317. See also comparative Semitic philology Aramaic (language), 138, 305, 317 See also Targumim Aristotelian theology, 53 See also theology Ark of the Covenant, 152, 152n24 Ashurbanipal, 138, 139n75, 142, 161, 185– 90

417

Ashurbanipal (continued ) library of, 302n89, 303– 4 See also Neo-Assyrian period Assyriology, 148, 184 – 92, 295–306 academic biblical studies, relation to, 56 –58, 60n24, 89–92, 113, 138 – 44, 202–3 asylum, laws of, 277 See also laws and legal topoi authority abrogation of, by citation, 271–73 centralization of, 36, 68 – 80, 85, 266 – 67, 307–11, 314n128 judicial authority of central sanctuary, 75n61, 76 – 81 functionalist view of law, 52–53 Mesopotamian conception of, 58 – 60 “origin myth” (of legal institutions), 62– 68 political authority Greek conception of, 84 – 85 Israelite conception of, 48 – 49 kingship, 76 – 79, 84 – 85, 84n81 separation of branches of, 6, 84n80 textual authority authorship and, 256 –57 canon and, 21, 21n22, 23, 30 –39, 222–23 Israelite conception of, 23, 30 –39, 258n7 Spinoza and, 12 See also constitution; judiciary; pseudepigraphy; trope authorship, 39, 198–200, 257, 281– 95, 292n56, 330 See also literary theory; redactor(s) autonomy of Israelite and Mesopotamian legal traditions, 60 – 61 of law and judiciary, 6, 54 –55, 63, 81– 86 of philosophy and theology, 12–13 of self, 13, 42– 45, 51 of text and reader, 13, 36 –37, 42, 136n67 See also constitution; covenant; person

418

Index of Subjects

Baal, 80, 127 Babylonian vocalization, 178 See also Targumim Bible and political thought, 5–6, 12–13, 51, 52–86, 192–93. See also authority: political authority; constitution; Deuteronomy Bible editions (Hebrew) BHK 3, 109n40, 115, 148, 161n46, 168 BHQ, 91, 117n18 BHS, 109n40, 115, 119, 148, 161n46, 168 first Rabbinic Bible (ed. Bomberg, 1516 –1517), 178, 178n27 See also Masoretic Text; textual criticism Bible, modern translations of Bible d’Alexandrie, La, 116, 183n41, 320n138 Einheitsübersetzung, 91n1, 147, 148, 158n39, 168, 213n39 JB, 115–16 Lutherbibel, 147n6, 158n39 NEB, 116, 213 NJPS (Tanakh), 17n13, 116, 146 – 47, 154n27, 213n39 NRSV, 116, 146, 213, 272 RSV, 116, 146, 154n27, 213n39 Sainte Bible, La, 115 blood as by-product of homicide, 152–53, 158n40, 164n52, 192– 93 as by-product of slaughter, 46, 219, 222, 252n98, 266 avenger of, 77 conflict between, and religion, 114, 141– 43, 146, 160 – 65, 190 – 93 in the Enuma Elish, 45 See also capital punishment; homicide; slaughter Booths, Festival of. See under Festival(s) brother. See under family relations calendar. See festival calendar Canaan autochthonous peoples of, 17n14, 244n63, 249 –50

Canaan (continued) “Canaanite slave” (in postbiblical law), 95n7 as promised land, 46 canon, 21, 21n22, 23, 30 –39, 222–23 See also authority capital punishment cuneiform law and, 59n23, 209 false accusation and, 60n25, 166 jurisdiction over, 74, 77, 125 rationale for, 75n61, 145– 46, 208 –212, 212n36 witnesses and, 150n15, 166 – 67, 182 See also homicide; public execution; summary execution casuistic law in the Covenant Code, 93, 94, 205n8, 207, 296, 303n90, 306 in Deut, 230n13 See also apodictic law centralization, 36, 68 – 80, 85, 266 – 67, 307–11, 314n128 See also authority; Josiah: reform of; judiciary chiasm, 154, 155. See also Seidel’s Law (chiastic citation) Chronicler, 34, 62n29, 102, 258n7 See also Deuteronomistic History Civil Rights legislation, 54 See also “ideal type” (of Max Weber) class (social), 50, 253, 298fig. See also gender; slaves clauses circumstantial/locative, 320 declarative, 157 disjunctive, 163n49 parataxis of, 124 permission and restriction, 43 relative/subordinate/dependent, 27, 95n7, 124n40, 210n31, 320 telic (final or motive or purpose clause), 45, 108n38, 158n41, 174, 262n21, 320 transformational grammar and, 211n33 See also apodosis; protasis; syntax

Index of Subjects coda (addition to legal text), 80, 80n73, 206n16, 208, 213 See also literary and editorial devices cognate accusative, 99, 107 See also grammar: accusative colophon(s), 35, 55, 219 –21, 270 –71 See also festival calendar; redactor(s); superscription(s) comparative Semitic philology, 97, 122–24, 125–29, 131n52, 151 Arabic lexicography, 156n34, 211n33, 317 Aramaic, 138, 305, 317 Hittite (Indo-European), 139n75, 159 Northwest Semitic, 126n47, 213n39 Sumerian, 123 Ugaritic, 123n36, 124n37, 151, 151n19, 213n39 See also Akkadian; grammarians, medieval Hebrew; linguistics; word pairs conjunctions, 122–24, 123n36, 124nn37– 41 constitution ancient view of Deut as, 52–56 Deut as draft, 81– 86 separation of powers and, 6, 81– 83, 84n80 subordination of monarch to, 76 – 79, 79n71, 84 – 85, 262n21 See also Deuteronomy: Deuteronomic Torah; kingship; Laws of Public Officials; Supreme Court contractual legal language, 100, 105–111 See also laws and legal topoi contradictions. See aporia covenant, 42, 46 – 47, 48 –51, 273–75 See also Deuteronomy; Esarhaddon’s Succession Treaty; Neo-Assyrian period; person Covenant Code, the dating of, 276 – 80, 295–306, 329 –30 demarcation of, 217–21 Laws of Hammurabi and, 298fig. redefinition of, by Van Seters, 283

419

Covenant Code, the (continued ) See also altar law; Deuteronomy; Laws of Hammurabi; legal collections; Neo-Assyrian period creation, 3. See also covenant; person cultural amnesia, 56 –58 cultus Assyrian iconography, 138 Israelite/Judean laws of, 35–36, 68 – 85, 157, 229, 276 –330 laws of, in Temple Scroll, 124 See also centralization; festival calendar; sanctuary cuneiform law biblical law and, comparison of, 29, 31–33, 41n3, 93n2, 138 – 43, 158 – 63, 201–223 loyalty oath (adê), 138 – 44, 159 – 63, 168 –70, 184 – 92, 303n90, 305 reception of, in ancient Israel, 58 – 62, 73n57, 191, 295–306, 300n82, 303n90, 306 as scribal curriculum, 60 – 61 See also laws and legal topoi; legal collections cuneiform tablets and inscriptions, 184n46, 301–5, 301n87, 302fig. See also Esarhaddon’s Succession Treaty; legal collections curses, 31n32, 162n47, 189n54 See also literary frame damages, 215 See also laws and legal topoi Damascus Document, 132–34 See also Dead Sea Scrolls daughter. See under family relations David, 77, 131n52, 189n54 Dead Sea Scrolls, 112, 119 –25, 132, 183, 273. See also Damascus Document; exegesis; Habbakuk pesher; Temple Scroll; textual criticism death penalty. See capital punishment Decalogue Horeb (Deut 5), 267– 68, 267n33

420

Index of Subjects

Decalogue (continued ) Ritual or Cultic (Exod 34), 282n23, 296 Sinai or Ethical (Exod 20), 282n23, 296 See also pentateuchal sources Deuteronomistic History, 277, 282, 293n56. See also Chronicler Deuteronomy authors of, 35–36, 48, 55, 67, 206n13, 259n10 as constitutional model, 6, 56n12, 81– 86, 262n21 the Covenant Code and, 276, 291 dating of, 279 – 80, 306n105 Decalogue and, 267n33 Deuteronomic Torah, 70 –71, 78 –79, 81– 86, 262n21 Josephus and, 55–56 Name theology of, 323, 326 Neo-Assyrian treaty form and, 138 – 44, 146, 159 – 63, 184 – 92 as pseudepigraph, 36 –39, 67– 68, 231, 248n86 secularizing tendencies of, 36, 252 utopian political vision of, 79n71, 80 – 85, 259n10 See also authority; constitution; Decalogue; divine presence; Josiah; judiciary; Laws of Public Officials; legal collections; pentateuchal sources; trope diachronic analysis, 3–6, 8 –24, 29 –39, 197–200, 201–23, 228n10, 257– 67, 284 – 95. See also aporia; academic biblical studies; redactor(s); synchronic analysis discourse, free indirect, 7, 26 See also literary and editorial devices disloyalty (as literary-legal motif) political (construed as sedition), 85n82, 90, 114, 138 – 40, 145, 159, 185– 93, 240 See also apostasy; loyalty oath divination. See priesthood; prophecy

divine presence, theologies of grafting together of, 328 Memra (nominal substitute for God’s name), 321–22 Name theology, Deuteronomic, 323, 326n157 Shekinah (hypostasis), 319fig., 323 See also theophany Documentary Hypothesis. See pentateuchal sources; source criticism draft constitution. See constitution: Deut as draft; Laws of Public Officials DtrH. See Deuteronomistic History due process, 58, 90, 148n10, 149n14, 149n15, 171– 80, 192, 194 See also laws and legal topoi; public execution; summary execution ecstatic. See prophet(s) Eden, Garden of, 40 – 47 editor(s). See redactor(s) editorial devices. See literary and editorial devices effected object, 93–111, 99n19, 99n20, 103n31. See also grammar: accusative elders, 71–72, 72n52, 82, 246, 300n82 See also judiciary Elijah, 80, 122 ellipsis (elision) of affected object, 102–3, 105– 6, 110 –11 midrashic claim of, as exegetical device, 162n46 See also grammar emendation. See under textual criticism entrapment, 149n15 See also laws and legal topoi Esarhaddon’s Succession Treaty (=VTE), 128n50, 139fig., 159fig., 185fig., 187fig., 188fig. correction of SAA 2, 186n50, 188n53 historical context of, 139n75, 189 – 90, 192 literary structure in, 186 – 89

Index of Subjects Esarhaddon’s Succession Treaty (continued ) reception of, in Deut 13, 90, 126n46, 138 – 44, 146, 159 – 63, 168, 184 – 92, 194, 303n90 reception of, in Deut 28, 61n27 relevance for textual criticism, 90, 144, 168 –70, 190 – 92 role of Queen Mother, 142n85, 142n87, 162n47, 190 stages of disloyalty in, 71n48, 90, 139, 184 – 90, 189n54 syntax of protasis of, 187– 89, 188n53 See also loyalty oath; Neo-Assyrian period; treaties ethnicity, 6, 50, 253 See also class (social); gender; morphology: nisbe formation (gentilic) etiology, 249 etymology, 156n34, 219 See also semantics European Romanticism, 198, 200, 200n9, 295, 329 Eve. See Eden, Garden of execution. See capital punishment; public execution; summary execution exegesis harmonistic legal (midrash halakah), 34, 90, 134 –36, 137n71, 144, 148n10, 149, 167, 167n3, 171– 84, 198, 203, 207–210, 213n38, 219 –21, 222–23, 258n7, 273, 309 –310, 320 –21 harmonistic lexical, 19n16, 23, 124, 131, 184 harmonistic narrative, 22–23, 30, 34, 58 – 68 medieval Hebrew, 15–16, 59n23, 136 See also academic biblical studies; Ibn Ezra, Abraham; inner-biblical exegesis; leveling; rabbinic exegesis “eye for an eye” (talion), 60, 60n25, 156, 272–73, 298fig. See also laws and legal topoi

421

Falashas, 134n59. See also halakah “fall” narrative, 5, 27, 40, 43, 45 See also trope false accusation, 60n25, 166 See also due process; laws and legal topoi: entrapment family relations, laws concerning, 125n44, 140, 162 brother, 114 –16, 122n35, 129, 131n52, 132, 135–37, 142, 161 daughter, 106 father, 106, 136n67 mother, 136n67 sister, 129 –32 wife, 113–14, 142 See also marriage; sex, laws concerning festival calendar, 271fig. of the Covenant Code, 219, 269n36, 270 –71, 276, 307n106 of Deuteronomy, 69, 219, 256, 264, 270 –71 of the Holiness Code, 219 –21 See also colophon(s); Passover law; redactor(s); superscription(s) Festival(s) of Harvest or Weeks, 261n17 of Ingathering or Tabernacles/Booths, 220 –21, 261n17 of Unleavened Bread, 219, 257, 258n7, 264, 268n36, 270 forgiveness, 154 – 65 form criticism (Gattungsgeschichte), 205–7, 292n56, 296, 300n82 as attempt to move behind late date of literary sources, 103n32, 207, 299 See also academic biblical studies; Sitz im Leben formulas, literary, 18, 73n57, 75n61, 105, 157, 316 –20 See also literary and editorial devices freedom. See autonomy; slaves: manumission of friend, 113–14, 162 gaps. See aporia Garden of Eden, 27, 40 – 47

422

Index of Subjects

gate, village. See village gate gender, 17n13, 19, 19n16, 50, 133n57, 253. See also class (social) gezerah shavah, 241 See also rabbinic exegesis Gideon, 129n51, 131n52, 242 Gilgamesh Epic, 304 God. See Yahweh golden calf, 193, 327 Golden Rule, 42 goring ox laws, 71n48, 298 government, form of. See constitution grammar accusative, 89, 97–111, 152, 309, 312 agreement/congruence, 126, 177n26 apposition, 107n35, 114, 125n44, 129 –32, 135–36, 142, 162n46 case system, 89, 98n17 conjunctions, 122–24, 123n36, 124nn37– 41 deep structure, 211n33 deixis, 133–34, 274 ditransitive construction, 101–3, 105– 9, 110 –11, 309 gender, 17n13, 19, 19n16, 50, 133n57, 253 genitive, 289n44 grammatical patient, 89, 96, 99 –111 linguistic updating, 122–24, 164n51 negation, 44, 157 nomen rectum, 94n7, 289, 289n44 nomen regens, 107, 289n44 nouns/substantives, 94n7, 98n17, 107n36, 140n78, 158, 164, 289n44 prepositions , 101, 108 – 9, 111, 158, 313n123 , 101, 101n26, 111, 174 , 147, 150 – 65, 257n6, 309 verbs and, 151n19 prolepsis, 96 – 97, 103–5, 103n32 pronouns, 133n57, 309 subjects, 108n39, 158, 172, 189n54, 209 verbs, 93–111, 151n17, 151n19, 154n28, 145– 65

grammar (continued ) waw, 124, 210 –12, 210n31, 211n33, 212n34, 212n35 See also ellipsis; linguistics; morphology; number; semantics; syntax grammarians, medieval Hebrew, 211, 211n33, 212n35, 108n39, 126n45 H. See under pentateuchal sources Habakkuk pesher, 183n44, 273 See also Dead Sea Scrolls halakah debate over, between Jewish communities, 134n59 embedded in translations, 171– 84 midrash halakah (harmonistic legal exegesis), 34, 134 –36, 137n71, 144, 148n10, 149, 167, 167n3, 171– 84, 203, 207–210, 213n38, 219 –21, 222–23, 258n7, 273, 309 –310, 320 –21 of Qumran, 37n49 See also rabbinic exegesis Hammurabi, 32–33, 49, 58, 61– 62, 76 – 77, 306n103 See also Laws of Hammurabi harmonistic legal exegesis. See under exegesis; rabbinic exegesis Harvest, Festival of. See under Festival(s) Hebrew (language). See grammar; morphology; semantics; syntax Hegel, Georg Wilhelm Friedrich, 5 heresy. See apostasy Hezekiah, 68, 71n51, 138, 306 high court. See judiciary; Supreme Court higher criticism, 10, 16, 113 See also academic biblical studies history of interpretation. See reception history History of Religions school (Religionsgeschichtliche Schule), 293n56 Hittite (language), 139n75, 159 Hittite Laws, 209n27. See also cuneiform law; legal collections Holiness Code, 282, 285n39. See also legal collections; pentateuchal sources

Index of Subjects homicide distinctions between categories of, 205n8, 215n47, 216, 240, 298fig. lynch law, 148, 166, 169n18, 179 murder, 191n57 See also capital punishment; summary execution Horeb (Sinai). See Decalogue; revelation; theophany Ibn Alfakhar, Jehuda, 13 Ibn Ezra, Abraham, 136n67, 212n36. See also exegesis: medieval Hebrew Ibn Jan, Jonah (Abu al-Wald Marwn), 211, 212n35 “ideal type” (of Max Weber), 85– 86 imago dei, 46 immortality, 46, 59. See also trope imperialism. See Neo-Assyrian period incest, 129 –34 See also sex, laws concerning infidelity. See apostasy; disloyalty; sex, laws concerning: adultery Ingathering, Festival of. See under Festival(s) inner-biblical exegesis, 21, 63– 64, 64n31, 225 evidence for, 94n4, 97, 156, 163, 217n55, 325 intertextual allusion, 17n13, 224 –55 See also academic biblical studies; exegesis innovation, 256 –57, 270. See also trope interpolation, 207–223, 215n49, 237, 243– 44, 270 –71, 316 See also literary and editorial devices: repetitive resumption; redactor(s) intertextual allusion, 17n13, 224 –55 See also inner-biblical exegesis; literary and editorial devices intimacy between addressee of law and inciter to apostasy, 114, 119n27, 125n44, 129n51, 142– 44, 143n89, 145, 154 –55, 160 – 62, 166 between Israel and Yahweh, 49 –51

423

intimacy (continued ) between female and male, 42– 43 See also addressee(s); marriage; sex, laws concerning Isaac, 252n97, 325n153 J. See under pentateuchal sources Jacob/Israel, 252n97, 131n52 JE. See under pentateuchal sources Jehoshaphat, 62, 62n29 Jerome, 173–74 Jerusalem Temple. See Temple, Jerusalem Jesus, 272–73 Jethro, 62– 67 Joseph, 101, 108 – 9 Josephus, 55–56 Josiah provenance of Deut and, 259, 276 reform of, 68n41, 69, 80, 146, 258n7, 263n22, 307n105 See also Deuteronomy judiciary, 6, 54 –55, 71– 84 “origin myth” (of legal institutions), 62– 68 See also constitution; sanctuary; Supreme Court Justinian’s Digest, 201 Kabbalah, 37 Kahan Commission, 54 Kant, Immanuel, 53–54 Karaites, 134n59. See also halakah kid boiled in its mother’s milk, 222 See also literary and editorial devices: repetition kidnapping, 208 –213, 212n36 See also laws and legal topoi Kimi, R. David, 15 kingship, 76 – 79, 84 – 85, 84n81. See also constitution; Laws of Public Officials kinship. See blood: avenger of; blood: conflict between, and religion; family relations; intimacy Kirta, 76 Korah, 164n53 Koschaker, Paul, 292

424

Index of Subjects

law literary implications of biblical, 4–5, 9, 30 –39 biblical narrative and, 3–6, 29 biblical poetry and, 41 modern study of, 6, 32, 32n37, 56, 84n80, 85 revision and reuse of, 80n73, 138, 303n90 sociological views of, 52–54, 85– 86 See also apodictic law; casuistic law; constitution; legal collections; narrative; syntax laws and legal topoi animals, 298fig. asylum, 277 contractual language, 100, 105–111 damages, 215 due process, 58, 90, 148n10, 149n14, 149n15, 171– 80, 192 entrapment, 149n15 false accusation, 60n25, 166 goring ox, 71n48, 298 injury and neglect, 298fig. kidnapping, 208 –213, 212n36 Laws of Public Officials (Deut 16:18 – 18:22), 68 – 85, 262n21 liability, 210, 214, 215n47, 216 military law, 192 oaths, 73, 75 ordeal, judicial, 73, 75 property law, 59n23, 60n25 rebellious child, 211n33, 298fig. self-help, principle of, 169n18 Sabbath(s), 219 –21, 313n123 talion, 60, 60n25, 156, 272–73, 298fig. witness and testimony, 58, 74, 138n72, 149n14, 167, 167n3, 171– 84, 191– 92, 194 See also altar law; capital punishment; disloyalty; family relations; homicide; legal collections; marriage; Passover law; sex; slaves; theft Laws of Hammurabi Covenant Code and, 60n24, 295–306, 298fig.

Laws of Hammurabi (continued ) Laws of Eshnunna and, 294n63 literary frame of, 31n32, 32–33, 49, 58 – 62, 58n19, 218, 293– 94, 297n72, 306n103 manuscripts of, 301– 4, 301n87, 302fig. See also Covenant Code; cuneiform law; Hammurabi; legal collections Laws of Public Officials (Deut 16:18 – 18:22), 68 – 85, 262n21 See also constitution Lebanese civil war (1982), 54 legal collections (as literary genre) biblical, 46, 222, 267n33, 295– 96 biblical and ancient Near Eastern analogies between, 31, 90, 93n2, 293, 297– 98 contrasts between, 79, 214, 217, 253, 306n103 compositional norms of, 31–34, 200, 203 contrasted with treaties, 192 disjunction between, and actual legal practice, 31–32, 32n35 infrastructure required for the production of, 298 – 99, 300n82 ordering principles of, 58 – 60, 59n23, 70 –71, 70n48, 229 –32 origins of, in Mesopotamian scribal schools, 58 – 62 Roman law, 80n73, 201, 292 See also Covenant Code; cuneiform law; Deuteronomy; Holiness Code; Laws of Hammurabi; literary frame; Temple Scroll leveling (as text-critical phenomenon), 105n33, 314, 324fig. in the PeshiÅta, 19n16, 115, 323–24, 323n148 in the Septuagint, 321n139, 324n151 See also exegesis; rabbinic exegesis; text-critical phenomena lexicography, 91, 105n33, 146 – 65, 211n33, 313 See also comparative Semitic philology linguistics, 89, 98n17, 211n33

Index of Subjects linguistics (continued ) speech act theory, 95n8, 95n10 transformational grammar, 211n33 See also comparative Semitic philology; grammar; morphology; semantics; syntax literal meaning. See plain meaning literary and editorial devices chiasm, 154, 155 coda (addition to legal text), 80, 80n73, 206n16, 208, 213 formulas, literary, 18, 73n57, 75n61, 105, 157, 316 –20 free indirect discourse, 7, 26 interpolation, 207–223, 215n49, 237, 243– 44, 270 –71, 316 intertextual allusion, 17n13, 224 –55 lexical variation, 15n11, 19n16, 20, 23 paradoxes, 36, 38, 43– 46, 74, 144, 149n15 pseudepigraphy, 36 –38, 67– 68, 131n52 repetition, 15–20, 27n28, 70, 227–28 repetitive resumption (Wiederaufnahme), 215–16, 220 –21, 286n41, 293, 293n59 Seidel’s Law (chiastic citation), 17, 108, 140 – 41, 270 –71, 270n40 self-referential structure (mise en abyme), 40, 40n1 textual silence, 72n53, 77–78, 134n59, 291 voice, literary, 3, 30 –39, 32n36, 59, 222n72, 306n103 wordplay, 156 See also aporia; authorship; narrator; parallelism; redactor(s); trope; voice, literary literary frame of the Covenant Code, 49, 293, 297n72 of cuneiform legal collections, 218 –19 of Deuteronomy, 69n44, 75n61 of the Laws of Hammurabi, 31n32, 32–33, 49, 58 – 62, 58n19, 218, 293– 94, 297n72, 306n103 See also legal collections literary persona. See voice, literary

425

literary theory authorship, 39, 257, 281– 95, 292n56, 330 canon, 21, 21n22, 23, 30 –39, 222–23 historical criticism, 14 law as subject of literary study, 3–6, 30 –39 poetics, 7–17, 20, 23–24 See also academic biblical studies; authority loyalty oath (adê), 90, 138 – 44, 159 – 63, 168 –70, 184 – 92, 194, 303n90, 305 See also cuneiform law; disloyalty; Esarhaddon’s Succession Treaty; Neo-Assyrian period LXX. See Septuagint Maimonides, 13, 150n15 See also exegesis: medieval Hebrew Manasseh, 138, 306 manslaughter. See homicide manumission. See slaves: manumission of Marduk, 45– 46, 76, 184n46 See also Hammurabi marriage, laws concerning, 31, 105 intermarriage, 249 levirate marriage, 246 See also intimacy; sex, laws concerning Masoretic Text, 67n37, 90–91, 112–13, 118n24, 120, 319 –20 See also textual criticism Mattathias, 193 Memra (nominal substitute for God’s name), 321–22 See also divine presence merism, 187. See also syntax metaphor. See trope midrash halakah (harmonistic legal exegesis). See under rabbinic exegesis military law, 192 See also laws and legal topoi mise en abyme, 40n1 See also literary and editorial devices modernity and antiquity, relationship between, 56 –58 monarchy. See kingship

426

Index of Subjects

monotheism, 25–26. See also trope morphology metathesis as exegetical device, 183nn43– 44 nisbe formation (gentilic), 94n7, 103n32 professional noun pattern, 187n50 See also linguistics Moses Blessing of Moses (Deut 33), 73n53, 75 as chief justice, 62 citation of, in the Damascus Document, 133 debates between, and God, 17n14 judiciary, established by, 63– 67, 69n44 as lawgiver and prophetic intermediary, 33–35, 55, 72n53, 81, 193, 273–74, 290 – 91 Mosaic authorship, as postbiblical development, 11–12, 12n6 pseudepigraphic voice of, 36, 82n77, 248n86, 260n14 See also Deuteronomy; Torah motif. See trope MT. See Masoretic Text Mullissu/Mulliltu (mother goddess), 142n85, 142n87, 162n47 See also Zakutu Treaty murder. See homicide Naal ever, 113n3 narrative and law, 3–6, 8 – 9, 252n97 sequence of, problem of, 64 – 65, 287n41, 291 theology of, 25 See also discourse, free indirect; law narrator, 8, 26 omniscient narrator, 7, 18, 24 –25, 28 Neo-Assyrian period, the Babylonian literary classics and, 302–5, 304n95 Neo-Assyrian empire, hegemony of, 55, 68, 138, 186, 256 –57, 299, 303, 303n90, 330

Neo-Assyrian period, the (continued ) Neo-Assyrian dialect, 141n81, 186n50, 191n58 Neo-Assyrian material as literary model for Deut, 61n27, 144, 146, 191– 92 See also Ashurbanipal; Esarhaddon’s Succession Treaty; Josiah; loyalty oath; Sargon II; Sennacherib; treaties; Zakutu Treaty Noah, 18 –22 Northwest Semitic, 126n47, 213n39 See also comparative Semitic philology; Ugaritic language Noth, Martin, 292n56 number (grammatical) agreement of, 125–26, 171– 84, 177n26, 321n139 plural, 178nn27–28, 328 variation of, in Qere/Kethib, 289n45 See also leveling Numeruswechsel, 178n28, 228, 228n10, 233, 324, 324n151 See also literary and editorial devices oaths, 73, 73n57, 75. See also laws and legal topoi; loyalty oath obedience, 27, 46, 49, 286n41 See also literary and editorial devices; Noah; trope omniscience omniscient deity, 25–26, 37–38, 73, 74 omniscient narrator, 7, 18, 24 –25, 28 See also narrator; trope; Yahweh oneiromancer. See prophet(s) ordeal, judicial, 73, 75 See also laws and legal topoi “origin myth” (of legal institutions), 62– 68 Orwell, George, 53 P. See under pentateuchal sources paleography, 112 paradoxes, 36, 38, 43– 46, 74, 144, 149n15. See also aporia

Index of Subjects parallelism, 150, 154. See also Seidel’s Law (chiastic citation); word pairs Passover law, 34, 219, 257–58, 266 See also festival calendar; syntax pentateuchal sources, 20 D (Deuteronomic), 268n36, 277, 282, 285n39 D and P, literary relationship of, 266n28 E (Elohist), 282n23 H (Holiness Code), 282, 285 H and P, literary relationship of, 285n39 J (Yahwist), 20, 199, 259n8, 264, 286 JE, 219 P (Priestly), 20, 259n8, 264, 269n36, 277, 282– 86 Van Seters’s exilic Yahwist, 277–78, 281– 95, 329 See also Covenant Code; Decalogue; Deuteronomy; source criticism person as affected object, 93–111 agency of, 44 – 47, 50 –51, 253 in Kant’s thought, 53 as legal category, 29, 41– 42, 41n3, 89 in Spinoza’s thought, 13 See also covenant pesher, 183n44, 273 See also Dead Sea Scrolls PeshiÅta, 91–92, 172–73, 323n147 Aramaic tradition and, 180n30, 313n124, 321–25, 324n150 leveling tendency of, 19n16, 115, 323–24, 323n148 See also Targumim; textual criticism Pharisaic law, 134n59. See also halakah philology. See comparative Semitic philology Phoenician, 317 plain meaning (sensus literalis), 95, 208, 213, 222, 241n54, 310 Plato’s Republic, 55–56 plural. See number poetics. See under literary theory

427

politics. See Bible and political thought polity (politeia). See Deuteronomy: Deuteronomic Torah power, critique of, 82– 86 prayer, 155–57, 311–30 See also divine presence; theophany prepositions. See under grammar priesthood, 75, 80 – 81, 193. See also constitution; Laws of Public Officials property law, 59n23, 60n25 See also laws and legal topoi prophecy, 80 – 81. See also constitution prophet(s), 113–14, 140, 140n78, 145, 166, 187, 211 prophetic oracles, 75, 163, 164n50, 289n45 See also Laws of Public Officials protasis (if-clause in legal statement) function of waw in, 211 marked by  , 49, 110fig., 124, 124n39, 181fig., 214, 316fig. marked by  , 122–24, 123n36, 124n39 of specific laws apostasy, 114, 125, 137n71, 143n89, 162, 163n49 female slaves, regarding, 101n26 kidnapping, 209, 212–13 manumission, 89, 93– 97, 103n32, 104n32, 111, 107, 310 Neo-Assyrian loyalty oath, 187– 89, 188n53 See also apodosis; clauses; syntax pseudepigraphy, 36 –38, 67– 68, 131n52 See also authority; Deuteronomy: as pseudepigraph; trope public execution, 171–79, 171n20, 179fig. See also capital punishment; due process; homicide; summary execution public officials, 68 – 85, 262n21 Qumran. See Dead Sea Scrolls Rabbinic Bible, first (ed. Bomberg, 1516 –1517), 178, 178n27 See also Bible editions (Hebrew)

428

Index of Subjects

rabbinic exegesis classical sources of, 28n29, 60n23 exegetical formulas, 11, 234n29 midrash halakah (harmonistic legal exegesis), 34, 134 –36, 137n71, 144, 148n10, 149, 167, 167n3, 171– 84, 203, 207–210, 213n38, 219 –21, 222–23, 258n7, 273, 309 –310, 320 –21 oral Torah, 271 techniques “creative philology,” 135, 184 ellipsis, 162n46 gezerah shavah, 241 See also exegesis; Ibn Ezra, Abraham; inner-biblical exegesis Radak. See Kimi, R. David Radcliffe-Brown, A. R., 52, 85 ransom, 214 rape, 306n103 See also sex, laws concerning rebellious child, 211n33, 298fig. See also laws and legal topoi reception history of biblical law, 125, 129, 134 –37, 144 of cuneiform law, 60n24, 61n27, 295–306 of Neo-Assyrian loyalty oath, 90–91, 138 – 43, 194 See also academic biblical studies redactor(s) of biblical law, 60n24, 125n42, 267, 281– 95, 328 –30 creativity of, 23, 215–16, 328 of cuneiform literature, 293– 95, 293n57, 303 linguistic updating, as technique of, 122–24, 164n51 overcoming dichotomy between author and editor, 198 –200, 293– 95, 329 –30 of Pentateuch, 285n39 of Samaritan Pentateuch, 295n67 Sin-leqi-unninni (responsible for standard Gilgamesh Epic), 294 – 95 of the Temple Scroll, 37n49, 124 –25

redactor(s) (continued ) See also authorship; colophon(s); diachronic analysis; superscription(s) repetition. See literary and editorial devices: repetition; source criticism: evidence for repetitive resumption (Wiederaufnahme), 215–16, 220 –21, 286n41, 293, 293n59 See also literary and editorial devices restoration. See under textual criticism retroversion. See under textual criticism reuse of texts. See inner-biblical exegesis revelation, divine, 59 See also theophany; trope rhetorical figures. See trope Roman law, 80n73, 201, 292 See also legal collections royal bureaucracy, 80 – 81, 298 – 99 See also legal collections; scribal curriculum royal edict (Uru-inim-gina), 218 Sabbath(s), 219 –21 See also laws and legal topoi sacrifice. See slaughter Samaritan Pentateuch embedding harmonistic exegesis, 10, 136 –37, 143– 44, 161n46, 310, 319n135, 325n152 preserving non-Masoretic variants, 109, 115, 116, 119 –20, 125, 126n47 reading with MT, 122, 179, 183 redaction of, 132, 295n67 See also textual criticism Samaritan Targum, MS A, 319n135 Samaritans, 134n59, 144 See also halakah Šamaš, 76. See also Hammurabi; Marduk sanctuary central, as high court, 74 –76 divine presence at, 73, 323 Gerizim as, in Samaritan Pentateuch, 295n67, 319n135 God as, in Ezek, 310 –11 local, as site of justice, 73–74 See also cultus; Temple, Jerusalem

Index of Subjects Sanhedrin, 273 Sargon II, 304 –5 See also Neo-Assyrian period Saul, 240, 242 scribal curriculum, 60 – 61 Scripture. See canon sedition. See disloyalty: political seer. See prophet(s) Seidel’s Law (chiastic citation), 17, 108, 140 – 41, 270 –71, 270n40 See also literary and editorial devices semantics of altar (), 314n128, 318 of covering (  ), 147– 65 of creation/appointment ( ,), 100 –109 of dying (), 240 of erasure (), 17n14 of forgiveness (  / ), 156 of killing ( ), 191 of oneiromancy, 140n78 of place (), 314n128, 316 –18, 325–26 of pledges (), 307n105 of proclaiming ( ), 311–25 of purchasing (), 93– 94, 106 –111 of taking () a wife, 105 of theophany, 325–30 of waw, 210 –12 See also linguistics Semitic philology. See comparative Semitic philology Semitic word pairs. See word pairs, Semitic Sennacherib, 139n75, 192 See also Neo-Assyrian period separation of powers. See under constitution Septuagint as harmonistic, 10, 90–91, 114 –15, 119 –20, 143– 44, 165, 319 –21 hermeneutical accomplishment of, 118, 118n23 leveling in, 321n139, 324n151 MT reading restored by, 109 textual witnesses to, 112–13

429

Septuagint (continued ) translation model of, 130 –31 See also textual criticism Sermon on the Mount, 272 sex, laws concerning adultery, 192, 306n103 incest, 129 –34 rape, 306n103 See also intimacy; laws and legal topoi Shekinah (hypostasis), 319fig., 323 See also divine presence Shestov, Lev, 5 Sinai (Horeb). See Decalogue; revelation; theophany Sinai pericope, 6, 48 –51, 277– 95 singular. See number Sin-leqi-unninni (responsible for standard Gilgamesh Epic), 294 – 95 See also redactor(s) Sippar prologue tablets. See Laws of Hammurabi: manuscripts of sister. See under family relations Sitz im Leben (life-setting), 205– 6, 206n13, 283, 329 See also form criticism slaughter, 35–36, 219, 222 sacrificial, 264 – 67, 309 secular, 251–52 See also blood; Passover law: paschal offering slaves, laws concerning indenture of, 298fig. injury to, 298fig. manumission of, 4, 59n23, 89, 93– 97, 105–11, 107n36, 277, 280n15 See also laws and legal topoi Solomon, 77 Temple Prayer of, 315 source criticism challenges to, by scholars, 9 –10, 16n12, 21n21, 204, 257 Covenant Code and, 276 – 80, 281n18, 307n106 evidence for, 16, 20, 69n44 excesses of, 260 Flood narrative and, 20n21, 22–23

430

Index of Subjects

source criticism (continued ) form criticism and, 103n32, 207, 292n56, 295– 96 insights of, 289, 325n153 origins of, with Spinoza, 11–15 relation of literary (synchronic) approach to, 4, 9 –24 See also academic biblical studies; pentateuchal sources speech act theory, 95n8, 95n10 See also linguistics Spinoza, Benedictus de (Baruch), 4, 11–15, 26n27 Stevens, Wallace, 3 succession. See loyalty oath Sumerian (language), 33, 123 summary execution in Akkadian tradition, 139 – 40, 141n81, 160, 169, 188 – 92 in Deut, 90, 113–14, 141n81, 162– 65, 166, 192– 93, 194 rejection of, 138n72, 149n14 as restoration of rule of law, 192 See also capital punishment; due process; homicide; public execution superscription(s), 55, 204, 220 –21, 229, 288, 288n43, 289 See also colophon(s); festival calendar; redactor(s) Supreme Court king as high court, 76 of Israel, 54 Temple as high court, 74 –76 of U.S., 32n73, 54 See also constitution; Deuteronomy: Deuteronomic Torah; judiciary; sanctuary synchronic analysis, 3–6, 7–39, 83n79, 197–200, 257, 258n6, 284 – 95 See also academic biblical studies; diachronic analysis syntax of conjunctions, 211n33 difficult syntax, 257–58, 289 – 90 influence of Sumero-Akkadian legal tradition on biblical legal, 93n2

syntax (continued ) legal implications of (in MT Deut 13:7– 12), 170 merism, 187 syntax, prepositions, and verbal meaning, 151n17, 151n19, 165 terminology for accusative, 98n17 and theology, 43– 44, 274 and translation in Greek, 113n3, 131, 319 –21 in Hebrew, 17n13, 95n7, 108n38, 147n7, 177n26, 212–13, 309 –10, in Latin, 174 See also clauses; linguistics Syriac. See PeshiÅta Tabernacles, Festival of. See under Festival(s) talion, 60, 60n25, 156, 272–73, 298fig. See also laws and legal topoi Tannaitic midrashim, 28n29, 37, 94, 134 –36, 149n14, 213n39 See also rabbinic exegesis Targumim, 91, 134 –35, 134n60, 174 –78, 178nn27–28, 213n38, 321–25 relation to Syriac PeshiÅta, 313n124, 324n150 Samaritan Targum, MS A, 319n135 See also textual criticism Teacher of Righteousness, 273 See also Dead Sea Scrolls Tell Fekherye bilingual inscription, 138, 305 Temple, Jerusalem exclusivity of, 35, 69, 271 as high court, 70, 74 –79 priesthood and, 80 Solomon’s dedicatory prayer, 315 See also cultus; sanctuary Temple Scroll, 37n49, 122–25, 125n42, 132–34, 182, 270, 295n67 See also Dead Sea Scrolls text-critical phenomena corruption, 12n6, 144n90 graphic confusion, 109n40 homoioteleuton, 122n33

Index of Subjects text-critical phenomena (continued ) See also exegesis; leveling textual criticism emendation, 67n37, 93, 112, 152, 152n25, 311–25 lectio difficilior praeferenda, 183, 314 methodology of, 89–92, 113, 119 –20, 143– 44, 320 reconstruction of text, from fragments, 112n1, 123n35 restoration, 109 retroversion, 109n40, 240, 244n63, 315 variants, evaluation of, 120 See also Dead Sea Scrolls; exegesis; Masoretic Text; Numeruswechsel; PeshiÅta; Samaritan Pentateuch; Septuagint; Targumim; Vorlage; Vulgate textual silence, 72n53, 77–78, 134n59, 291 See also literary and editorial devices Thackeray, H. St. John, 55 theft, laws concerning of animals, 213–16, 298fig. of persons, 208 –13, 212n36 purchaser of stolen goods, 214 See also laws and legal topoi theology Aristotelian, 53 beginning of, serpent’s question as, 43– 44 history and, 263n22 philosophy and, Spinoza’s view of, 12–13, 13n8, 15 See also divine presence theophany, 50, 286n41, 290 – 91, 318 –28 See also divine presence; revelation Tiberian vocalization, 178 See also Targumim Torah oral, 37, 270 in Sermon on the Mount, 272 Sinai and, 63 written, 11, 28, 118, 183n44 See also Deuteronomy: Deuteronomic Torah

431

torah, as oracular responsum, 75 transformational grammar, 211n33 See also clauses; linguistics transitivity, 89, 96 –111, 107n35, 156n33. See also grammar: accusative treason. See disloyalty: political treaties Aramaic (Sefire), 138, 168, 228n10, 305 Hittite, 139n75, 146, 159, 168 Neo-Assyrian, 139n75, 138 – 44, 146, 148, 159 – 63, 168, 184 – 92 See also loyalty oath; Esarhaddon’s Succession Treaty; Neo-Assyrian period; Zakutu Treaty tree of knowledge of good and evil, 27, 43– 45 trope consistency with tradition as, 267–73 pseudepigraphy as, 35–38 redefinition of temporality as, 273–74 royal voicing of law as, 32–33, 58 –59, 76 – 77, 77n68, 79, 84n81, 262n21, 303n90, 306n103 See also authority; literary and editorial devices Ugaritic epic tradition, 15, 16n12, 76, 127fig. Ugaritic language, 123n36, 124n37, 151, 151n19, 213n39. See also comparative Semitic philology; Northwest Semitic United Monarchy, 77 Unleavened Bread, Festival of. See under Festival(s) Urim and Thummim, 75 See also priesthood utopianism, 49, 79n71, 80, 83, 85, 259n10. See also pragmatism vassal treaty. See loyalty oath verum sensum, 13 See also Spinoza, Benedictus de village gate, 71, 82, 246 See also judiciary voice, literary, 30 –39, 32n36, 222n72.

432

Index of Subjects

voice, literary (continued ) See also authority; literary and editorial devices; pseudepigraphy; trope: royal voicing of law Vorlage translation model within LXX, 131 of LXX, 112, 117–22, 143, 320 –21 of Targumim, 322n140 See also textual criticism VTE. See Esarhaddon’s Succession Treaty Vulgate, 91, 115, 173 See also textual criticism Weber, Max, 85– 86 Weeks, Festival of. See under Festival(s) Wette, W. M. L. de, 12n6, 257 Wiederaufnahme. See repetitive resumption wife. See under family relations wisdom, 67, 77n68, 307n105 See also Deuteronomy: authors of witness and testimony. See under laws and legal topoi word pairs, Semitic brother/son of father, 131n52 brother/son of mother, 126, 126n47, 127fig., 128fig., 129fig., 135–36

word pairs, Semitic (continued ) in Decalogue ( // and //), 313n123 See also comparative Semitic philology; literary and editorial devices; parallelism wordplay, 156 See also literary and editorial devices Yahweh and central sanctuary, 35, 69, 75n61, 270 –71, 314n128 congregation of, 249 –50 as creator God, 17n14 “fixed times of ” (calendar), 219 –20 as lawgiver, 50 –51, 59, 303n90, 306 and Sinai/Horeb, 35, 37n49, 48 –51 as suzerain, 113–14, 138 – 44, 145– 46, 163, 193, 263n23 theophany of, and altar, 309 –28 “all the words of,” 288 – 89 See also apostasy; covenant; Deuteronomy; omniscience; voice, literary Yahwist. See under pentateuchal sources Zakutu Treaty, 141– 42, 160, 190 – 91 See also Mullissu/Mulliltu; treaties Zion, 76, 328 Zohar, 37