Professor Christine
Hayes: So as we saw last
week, before we stopped to talk
about the priestly materials and
the Holiness Code--as we saw
last week, the covenant ceremony
at Sinai included God's
announcement of and Israel's
agreement to certain covenantal
stipulations.
So Exodus 24:3 and 4,
describe this agreement as
follows:
Moses went and repeated
to the people all the commands
of the lord and all the rules;
and all the people answered
with one voice,
saying "All the things that the
lord has commanded we will do!"
Moses then wrote down all the
commands of the Lord.
So the covenant concluded at
Sinai is the climactic moment in
the Pentateuchal narrative.
 
And it came to be viewed as the
initiation of God's articulation
of the laws and rules and
ordinances and instruction by
which the ancient Israelites
were to live.
And so later editors
consequently inserted law
collections from later times and
circles into the story of
Israel's meeting with God at
Sinai,
and subsequent sojourn in the
wilderness.
This was done in order to lend
these collections an air of high
antiquity and to give them
divine sponsorship.
The conclusion of biblical
scholarship is that a number of
separate bodies of law have
gravitated to the story of the
40-year period of Israel's
formation into a people.
So that's the period of the
covenant at Mount Sinai and then
the journey towards the Promised
Land.
All Israelite law is
represented in the biblical
account as having issued from
that time,
that 40-year period of intimate
contact between God and Israel.
So on your handout,
I've given a division,
a rough division,
of the different legal
collections that we have in the
Pentateuch.
The laws that scholars will
often refer to as the JE laws,
since they sort of are
introduced by that
narrative--some people think
it's best to just think of these
as separate legal
collections--those occur in
Exodus.
And so they tend to be dated
tenth-ninth century in their
written form.
The laws of the priestly
material are mostly going to be
found in Leviticus and Numbers,
and those will be formulated
somewhere from the eighth to the
sixth century.
Same period of time roughly we
have the laws of D,
which are found,
obviously, in Deuteronomy.
But these sources themselves
are clearly drawing upon much
older traditions.
 
Some of the individual laws are
clearly quite ancient.
They have a great deal in
common with Ancient Near Eastern
legal traditions,
generally of the second
millennium.
The laws of Exodus,
for example--some of them bear
such similarity to the Code of
Hammurabi that we can really
assume that they are drawing
upon a common legal heritage:
Canaanite law or what would
have been known as a legal
tradition in Canaan.
So whatever their actual
origin, however,
the bible represents these
materials as having been given
at Sinai or during that 40-year
period after.
So given at Sinai,
now this is on your sheet,
you have the Decalogue--not
very well translated as the Ten
Commandments--we'll come back to
that.
Covenant code,
so that's a chunk of material,
three chapters in Exodus.
 
Then we have a small passage
referred to as a ritual
Decalogue--we'll come back to
that--you have priestly
legislation--a little bit in
Exodus about the cult,
obviously, then on into
Leviticus and some Numbers.
According to the biblical
narrative then,
the following materials were
given in the 40 years after
Sinai,
as the Israelites are encamped
in the wilderness on their
journey toward the land of
Israel.
So those are presented as
supplements in Numbers,
but also the Deuteronomic code.
Let's talk a little bit now
about the Decalogue.
There was a scholar by the name
of Alt, A-L-T.
Albrecht Alt,
a German scholar who examined
the legal material of the Bible
in general.
And he noticed that there were
really two forms of law.
Yeah--these things I forgot to
write down .
There's conditional law and
apodictic law.
Conditional law is case law,
casuistic law.
And then there's absolute or
apodictic law.
He noticed these two forms.
 
Casuistic law is the common
form that law takes in the
Ancient Near East,
and you've seen it in the Code
of Hammurabi.
It has a characteristic if/then
pattern.
Casuistic law tells you,
for example,
if a person does X or if X
happens, then Y will be the
consequence.
It can be complex.
 
It can be quite specific.
 
If X happens,
Y is the consequence,
but if X happens under these
different circumstances,
then Z is the consequence.
 
And it can be quite detailed
giving three or four sub-cases
with qualifications.
 
Absolute or apodictic law,
by contrast,
is an unconditional statement
of a prohibition or a command.
It tends to be general and
somewhat undifferentiated.
You shall not murder.
 
You shall love the lord your
God.
And absolute law,
apodictic law,
is not unknown as a form in
other Ancient Near Eastern
cultures,
but it seems to be most
characteristically Israelite.
 
You find a great deal more of
it in our legal collections in
the Bible than anywhere else.
 
The provisions of the
Decalogue--and again,
the translation Ten
Commandments is actually a very
poor translation;
in the Hebrew,
it simply means ten statements,
ten utterances--the ones that
are in some sort of legal form,
are in absolute or apodictic
form.
The Decalogue is the only part
of God's revelation that is
disclosed directly to all of
Israel without an intermediary.
 
But its directives are couched
in the masculine singular.
So it seems to be addressing
Israelite males as the legal
subjects in the community.
 
And the Decalogue sets out some
of God's most basic and
unconditional covenant demands.
 
The division into ten is a bit
awkward.
It probably should be seen as
an ideal number,
an effort to find ten
statements in there.
Because, in fact,
there are really about 13
separate statements.
 
And we see the fact that ten
doesn't work very well in a very
interesting phenomenon,
which is that the so-called
commandments are actually
numbered differently by Jews and
by Christians and then even
within the Christian community,
different Christian
denominations number the
commandments one through ten
quite differently from one
another.
They disagree about what is
number one and what is number
two and so on.
The first statements,
either one through four or one
through five depending on your
counting,
but the first group of
statements concern Israel's
relationship with her suzerain,
with God.
She's to be exclusively
faithful to God.
She's not to bow down to any
manmade image.
She may not use God's name in a
false oath, to attest to or
swear by a false oath.
 
She is to honor God's Sabbath
day, and honor parental
authority, which is arguably an
extension of God's authority.
The remaining statements then
concern Israel's relationship
with her fellow vassals,
if you will.
And they prohibit murder and
adultery and robbery,
false testimony and
covetousness.
It's important to realize that
the Pentateuch contains three
versions of the Decalogue.
 
And there are differences among
them.
The Decalogue is going to be
repeated in Deuteronomy,
chapter five.
And there are some minor
variations.
Specifically you'll see that
the rationale for observing the
Sabbath is different.
God's name in Deuteronomy 5 is
not to be used in a vain oath as
opposed to a false oath.
 
There are differences in the
meaning.
And there are some more
differences too in language.
So what are we to make of this?
 
One scholar,
Marc Brettler,
whose name I've mentioned
before, he says that what we
learn from this,
these variations,
is something about the way
ancient Israel preserved and
transmitted sacred texts.
 
They didn't strive for verbatim
preservation when they
transmitted biblical texts.
 
And they didn't employ cut and
paste methods that might be
important to us in the
transmission of something.
Texts were modified in the
course of their transmission.
Verbatim repetition was not
valued in the way that it might
be for us.
So that even a text like the
Decalogue, which is represented
as being the unmediated word of
God, can appear in more than one
version.
There's a more surprising
variation that occurs,
however, in Exodus 34.
 
After smashing the first set of
tablets that were inscribed with
the Decalogue--the tablets in
Exodus 20,
those are smashed after the
golden calf incident--Moses is
then given a second set of
tablets.
And the biblical writer
emphasizes in the story at that
point that God writes on the
tablets the words that were on
the former tablets that were
broken.
The same words.
So we expect now a verbatim
repetition of Exodus 20.
 
And yet we don't have it.
 
The Decalogue that follows in
fact has very little overlap
with the earlier Decalogue.
 
There's really only two
statements that even have the
same content.
And even those,
which do overlap in content,
vary in wording.
This Decalogue,
which is often called the
ritual Decalogue,
so it's listed on there in
Exodus 34,
bans intermarriage with
Canaanites less they entice the
Israelites into worship of their
gods.
It has other terms that give
commandments about the
observance of the festivals,
various festivals,
the dedication of first fruits
to God, the dedication of first
born animals to God and so on;
things that were not in the
Exodus 20 Decalogue.
So evidently,
there were different traditions
regarding the contents of the
Decalogue.
And the story of the golden
calf and Moses' destruction of
the first set of tablets is a
brilliant narrative strategy for
introducing this second
Decalogue tradition.
Also surprising is the fact
that the Decalogue in Exodus 20
doesn't stand completely
unchallenged in the Bible.
Exodus 20, verses 5 through 6,
contain explicitly the
principle of inter-generational
punishment.
God is said to spread
punishment for sin out over
three or four generations.
 
This is understood as a sign of
his mercy.
It's reducing the punishment on
the actual sinner by spreading
it out and limiting the
consequences to only three or
four generations,
in contrast to what is said in
the next verse,
that kindness he spreads out
over thousands of generations.
 
Right?
So it's seen as merciful mode
of operation.
But the notion of
intergenerational punishment is
something that some segments of
the community or perhaps later
in time was rejected?
Some segments of the community
rejected this notion.
And so in Deuteronomy 7,
we see that quite pointedly.
"God punishes only those who
spurn him, and does so
instantly."
Ezekiel, when we get to
Ezekiel, we'll see that he will
also very adamantly reject the
idea of intergenerational
punishment.
The children do not suffer for
the sins of the father,
only the father.
So what are we to make of this?
Again, Marc Brettler concludes
that the Decalogue or Decalogues
did not originally possess the
absolute authority that is so
often claimed for it even today.
 
Later religious traditions have
elevated the Decalogue in Exodus
20 to a position of absolute
authority.
A position that's not
completely justified given the
Bible's own fluid treatment of
the wording,
the Decalogue's text,
and its content,
and its later objection even to
one of its terms.
So the claim that God's
revelation of the Decalogue was
fixed in form--the words that we
see in Exodus 20,
for example--and immutable in
substance is not a claim that's
really native to or even
justified by the biblical text.
It's a later ideological
imposition upon the text.
And I want to talk a little bit
more about biblical law's
connection with the legal
patrimony of the Ancient Near
East.
Because certainly biblical law
shares in that patrimony,
even if sometimes it's clearly
reforming it.
So it's helpful and it's
instructive to compare it with
other ancient law collections.
And I hope you've had time to
sit and read--there was a study
guide posted on the website and
I hope you had time to work
through these materials.
 
They're fascinating.
 
And we'll see that there are
certain key features that
distinguish Israelite law from
the other Ancient Near Eastern
legal collections.
 
I've also put on the handout
for today just a list of those
collections: the Laws of
Ur-nammu,
the Laws of Lipit-Ishtar,
the Laws of Eshnunna,
the Code of Hammurabi,
which is CH,
the Hittite laws,
the youngest laws would be the
middle Assyrian laws,
giving you rough dates and so
on.
So you have that to refer to
for the information about these
particular collections.
I should also say that we would
do better to understand these
materials as legal collections
and not codes.
I know the word code gets
thrown around a lot,
Code of Hammurabi and so on.
 
But they really aren't codes.
 
Codes are generally systematic
and exhaustive and they tend to
be used by courts.
 
We have no evidence about how
these texts were used.
In fact, we think it's not
likely that they were really
used by courts.
But they were part of a learned
tradition and scribes copied
them over and over and so on.
They are also certainly not
systematic and exhaustive.
So for example,
in the Code of Hammurabi,
we don't even have a case of
intentional homicide.
We only have a case of
accidental homicide.
So we really don't even know
what the law would be in a case
of intentional homicide.
 
We can't really make that
comparison with the biblical
law.
Now, in a very important
article that was written nearly
half a century ago now,
it's hard to believe,
by a man named Moshe
Greenberg--he's a biblical
scholar and he argued that a
comparison of biblical law with
other Ancient Near Eastern
collections reveals the central
postulates or values that
undergird biblical law .
 
I'll be drawing extensively on
Greenberg's work in this
presentation as well as other
scholars who have picked up some
of his ideas and have taken them
in other directions.
But it was really Greenberg who
was the one who I think made the
first foray into this kind of
comparative approach,
and since then others have
taken advantage of that idea.
There is, Greenberg says,
an immediate and critically
important difference between
Ancient Near Eastern collections
and the Israelite laws as
they're presented by the
biblical narrator.
 
And that's a difference in
authorship.
So if you look,
for example,
at the prologue to the laws of
Ur-nammu: An and Enlil gave
kingship to Ur-nammu,
but Ur-nammu is said to
establish equity and the laws.
 
If you look at Lipit-Ishtar,
both the prologue and the
epilogue: An and Enlil,
the gods, give kingship to
Lipit-Ishtar,
but Lipit-Ishtar establishes
justice.
He refers to the laws as "my
handiwork" in the first person.
 
Or the prologue to the Code of
Hammurabi.
Again, lofty Anum and Enlil
established for him an enduring
kingdom.
They name him "to promote the
welfare of the people…cause
justice to prevail… When
Marduk commissioned me… to
direct the land" and now it
continues in first person
speech: "I established law and
justice in the language of the
land…At that time,
(I decreed):
the laws of justice," the laws
that the efficient King
Hammurabi set up.
"I wrote my precious words on
my stela," which you can go and
see at Sterling Memorial Library
"and in the presence of the
statue of me,
the king of justice,
I set up in order to administer
the law of the land,
to prescribe the ordinances of
the land,
to give justice to the
oppressed."
And he refers to it as "my
justice," "my statutes," no one
should rescind them.
 
"My inscribed stela,"
"my precious words."
Do not alter the law of the
land which "I" enacted;
I, I, I throughout.
 
By contrast in biblical law,
authorship is not ascribed to
Moses, ever.
It is attributed always to God.
So you see in Exodus 24:3 and
4: Moses went and repeated to
the people all the commands of
the lord and all the rules;
and all the people answered
with one voice,
saying "All the things that the
lord has commanded we will do!"
Moses then wrote down all the
commands of the Lord.
It's the repetition that makes
you feel that the biblical
writer here is not accidentally
saying these things,
trying to drive home a very
strong point.
Exodus 31:18:
"When he finished speaking with
him on Mount Sinai,
He gave Moses the two tablets
of the Pact,
stone tablets inscribed with
the finger of God."
 
So Greenberg,
and since him,
Brettler, and many others,
have argued that the principle
of divine authorship has certain
very important implications.
First, it has a significant
effect on the scope of the law.
Ancient Near Eastern and
biblical law differ concerning
the areas of human life and
activity that fall within the
concern of the law.
 
That doesn't mean they don't
fall within the concern of
humanity, they just fall within
concern of the law.
That's an idea I'll come back
to in a minute.
Israelite law will contain more
than just rules and provisions
that fall within the scope of
the coercive power of the state
to enforce.
More than what would fall under
the jurisdiction of law courts,
for example,
or legal decisors.
 
It is holistic.
The scope of the law is
holistic.
It's going to contain social
and ethical and moral and
religious prescriptions,
and very often they're going to
be couched in an authoritative,
apodictic style,
particularly the things that
aren't enforceable in a court of
law.
They will tend to be the ones
that are backed up by the
authority of God directly:
you shall do this,
I the Lord am your God.
 
Notice how many times that
refrain is used.
And it's almost always used
with those unenforceable kinds
of things.
Love your neighbor as yourself,
you know, I the Lord am your
God.
It's me who's watching out for
this one, not the court,
okay?
The extra-biblical law
collections deal almost
exclusively with matters that
are enforceable by the state.
 
That doesn't necessarily mean
they were.
We don't know how these were
used.
But they don't tend to deal
with matters that we would call,
we would call,
matters of conscience or moral
rectitude.
So you'd be very hard pressed
in the extra-biblical
collections to find a law like
Exodus 23:4 and 5:
When you encounter your
enemy's ox or ass wandering,
you must take it back to him.
When you see the ass of your
enemy lying under its burden,
and you would refrain from
raising it, you must,
nevertheless,
raise it with him.
Or Leviticus 19:17 and 18:
"You shall not hate your
kinsfolk in your heart."
 
Can you imagine Congress
passing a law like that?
"You shall not hate your
kinsfolk in your heart.
Reprove your kinsmen,
but incur no guilt because of
him."
And don't carry around a grudge.
Reprove him,
tell him what's wrong,
clear the air.
Don't carry around a grudge.
"You shall not take vengeance
or bear a grudge against your
countrymen.
Love your fellow as yourself:
I am the Lord."
That refrain always comes after
those kinds of statements.
 
So the Bible includes norms for
human behavior set by the divine
will, even though enforcement
has to be left to the individual
conscience.
And in the Torah,
therefore, life is treated
holistically in the realm of
law.
One's actions aren't
compartmentalized,
and that's why the legal
materials to us can sometimes
seem like an indiscriminate mix
of laws concerning all areas of
life.
And it's one of the things that
makes people confused.
Because a lot of moderns have
gotten the idea that the Bible
only deals with what we call
morality.
And so they don't understand
all this other stuff that's in
there, right?
And sometimes if we tell
ourselves, well,
this is a legal collection,
then we don't understand why
there's all this moral-looking
stuff in there.
It is a mixture because it's
holistic.
It is the will of God,
and God has something to say
about all areas of life.
And so in Exodus 23,
you're going to have a law that
tells you not to oppress a
stranger because you were a
stranger.
It tells you to not plow your
land in the Sabbath year
immediately following that to
let the poor and needy eat from
it.
It tells you to observe the
Sabbath day rest.
You shall not mention any other
gods.
It tells you how to observe the
three pilgrimage festivals and
rules of ritual offering and
then there are also civil laws.
Same thing in Leviticus:
18 through 20.
We have incest laws,
we have ritual laws,
we have civil laws and we have
moral laws all together.
Now, a second
implication--another idea that
flows from the fact that this
law is divinely authored--so a
second implication of divine
authorship,
according to Greenberg,
is this connection between law
and morality so that in the
biblical, legal framework,
every crime is also a sin.
 
Every crime is also a sin.
 
Law is the moral will of God
and nothing is beyond the moral
will of God.
So what's illegal is also
immoral, and vice versa;
what's immoral is also illegal.
Law and morality are not
separate, as we moderns tend to
think they are and ought to be,
right, in our society.
Offenses against morality in
the biblical world are also
religious offenses.
 
They're also sins because they
are infractions of the divine
will.
So the fusion of morality and
law, Greenberg argues,
is the reason that biblical law
not only expresses,
but legislates a concern for
the unfortunate members of
society, for example;
orphans, strangers,
widows, as well as respect for
the aged.
From the Priestly source,
this is Leviticus 19:32,
we read, "You shall rise before
the aged and show deference to
the old;
you shall fear your God.
 
I am the Lord."
Again, that refrain always has
to come with this kind of a
statement.
The extra-biblical codes
certainly exhibit concern for
the rights of the poor.
 
This is very important,
particularly in their
prologues.
We've read some of these
prologues.
You know, my desire was to help
the orphans, the strangers and
so on.
But when you look at the
content of the laws,
as in our society,
they don't legislate charity.
They don't legislate compassion.
 
It's likely that these were
considered acts of,
who knows, personal conscience,
religious conviction,
something that was between the
individual and society and their
God.
I don't know,
but they were outside the
domain and jurisdiction of the
court.
That doesn't mean that charity
and compassion were not present
in other Ancient Near Eastern
cultures.
The point is that law is not
understood as being the
appropriate vehicle for the
expression of those values.
 
There were other sorts of texts
that might do those sorts of
things and urge people to
charity and compassion.
But law, the legislation,
is not understood to be the
appropriate vehicle for the
expression of those values.
So again, I'm not trying to say
that in Ancient Near Eastern
society, everybody was mean,
I'm trying to say that law,
because of its divine
authorship, suddenly takes on a
scope,
a holistic scope and a fusion
of law and morality that are
kept separate in other cultures
and very much in our own.
 
 
 
So the two, however,
are combined.
And law is understood to be the
appropriate vehicle to legislate
compassion, for example.
 
So in Leviticus 19:9,
verse 10, legislating charity,
When you reap the harvest
of your land,
you shall not reap all the way
to the edges of your field,
or gather the gleanings of your
harvest.
You shall not pick your
vineyard bare,
or gather the fallen fruit of
your vineyard.
You shall leave them for the
poor and the stranger:
I, the Lord am your God.
Again, from the Holiness Code,
Leviticus 19:14,
"You shall not insult the deaf,
or place a stumbling block
before the blind.
You shall fear your God:
I am the Lord."
Again, always has to back it up
because this is not something
the courts can back up,
right?
This is a question of your
morality.
Or Leviticus 20:18 "Love your
fellow as yourself.
I am the Lord."
Leviticus 19:33-34:
"When a stranger resides with
you in your land,
you shall not wrong him.
 
The stranger who resides with
you shall be to you as one of
your citizens;
you shall love him as yourself,
for you were strangers in the
land of Egypt:
I, the Lord,
am your God."
Deuteronomy 22:6:
"If, along the road,
you chance upon a bird's nest,
in any tree or on the ground
with fledglings or eggs and the
mother sitting over the
fledglings or on the eggs,
do not take the mother together
with her young.
Let the mother go,
and take only the young,
in order that you may fare well
and have a long life," meaning
God will reward you.
So again, this is enforceable
by God.
Furthermore,
Greenberg argues that the fact
that every crime is also a sin
lays the ground for certain acts
to be viewed as absolutely
wrong,
and transcending the power of
humans to forgive.
Absolutely wrong and they
transcend the power of humans to
pardon or forgive.
 
Take for an example, adultery.
 
Deuteronomy 22:22:
"If a man is found lying with
another man's wife,
both of them--the man and the
woman with whom he lay--shall
die.
Thus, you will sweep away evil
from Israel."
And murder is the other one.
 
Numbers 35:16,
"…the murderer must be put to
death…" "You may not accept a
ransom for the life of a
murderer" "who is guilty of a
capital crime;
he must be put to death."
 
In the view of the biblical
text, adultery and murder are
absolutely wrong.
 
They must always be punished
regardless of the attitude of
the offended parties.
 
So a husband can't say "Oh,
that's okay,
I don't want to punish my wife;
let them have their fun.
It's no big deal;
I don't mind." Alright?
And the family of a murder
victim can't say,
"You know, Joe was such a pain
in the neck anyway,
you've really done us a favor,
you know?
Just pay the funeral costs,
we'll call it quits."
You can't do that.
 
These are absolutely wrong.
 
These deeds,
as infractions of God's will,
and God's law,
they're always wrong.
They transcend the power of
human parties to pardon or
forgive or excuse.
 
And you compare that with the
extra-biblical collections and
you see quite a difference.
 
In the Code of Hammurabi,
number 129, adultery is
considered a private affair.
 
"If the wife of a seignor"--and
I have to-- this terminology is
just wonderful.
Seignor.
This comes, I think,
from French feudalism.
These have to do with class
distinctions.
And so the translators of this
particular translation chose
these feudal--very meaningful to
you I'm sure--these feudal
categories.
Essentially what's going on
here is the underlying Akkadian
words, I guess,
are awilum,
mushkenum,
and then a third category,
slave.
When the three--when they
appear together,
awilum tends to refer to
an upper class person,
a mushkenum to a
commoner.
Awilum can just mean an
ordinary citizen,
but when it's in juxtaposition
with the other terms,
it's clearly someone of a
higher social class.
So we'll use aristocrat,
which is where we get the
French feudal seignor,
and then we'll use commoner and
slave.
So in the Code of Hammurabi,
"If the wife of a citizen has
been caught while lying with
another man,
they shall bind them and throw
them into the water.
 
But if the husband of the woman
wishes to spare his wife,
then the king in turn may spare
his subject."
It's up to the husband.
 
He's the offended party.
 
It's a private matter.
 
He decides.
The middle Assyrian laws on
Tablet A numbers 14 to 16.
 
Again, it's a crime against the
property of the husband,
and so it's within his power to
either prosecute or not.
"If a seignor," an awilum has
lain with the wife of another,
either in a temple brothel or
in the street knowingly,"
knowing that she was a wife,
"then they shall treat the
adulterer as the seignor orders
his wife to be treated."
Okay?
So whatever he does to her,
they do the same thing to the
male.
But if he was innocent,
he didn't know that she was a
married woman,
"the seignor shall prosecute
his wife, treating her as he
thinks fit."
It's up to him.
"If… the woman's husband,"
more ifs and thens,
but here's a case of "if… the
woman's husband puts his wife to
death,
he shall also put the seignor
to death, but if he cuts off his
wife's nose,
he shall turn the seignor into
a eunuch"--I guess this is
considered equivalent--"and they
shall mutilate his whole face.
 
However, if he let his wife go
free, they shall let the seignor
go free."
Again, it's a private matter.
In the Hittite laws as well,
Tablet 2,197-198,
the husband can decide to spare
his wife,
If he brings them to the
gate of the palace and declares:
"My wife shall not be killed'
and thereby spares his wife's
life,
he shall also spare the life of
the adulterer and shall mark his
head.
But if he says,
"Let them die both of them!"
…[then]
the king may order them killed,
[but also], the king may spare
their lives.
And we see the same sorts of
distinctions in murder cases.
We'll come back to them later.
 
A third implication or
consequence of the divine
authorship of biblical law,
according to Greenberg,
is that the purpose of the law
in Israelite society is going to
be different from the purpose of
the law in other societies.
So in non-Israelite society the
purpose of the law is to secure
certain sociopolitical benefits.
 
Think about the preamble of the
American Constitution,
which states the purpose of the
law.
It reads almost exactly like
the prologues to these ancient
collections.
You can pick out words that are
identical.
The purpose of the law is to
"establish justice,
insure domestic tranquility,
provide for the common defense,
promote the general welfare,
and secure the blessings of
liberty."
So when you see the prologue of
Ur-nammu, the purpose of the
law: "establish equity,"
protect the underprivileged,
promote the common weal and
welfare, basically.
The Laws of Lipit-Ishtar in the
prologue: "establish justice…
banish complaints,"
I like that one,
"bring wellbeing"--promote the
common weal and welfare.
Same again with the Code of
Hammurabi's prologue:
to promote the welfare of the
people, good government,
the right way,
prosperity.
But for Israel,
the law does include these
benefits, but is not limited to
these benefits.
The law also aims at
sanctifying.
A concept we dealt with at
great length in the last
lecture.
Sanctifying,
rendering holy or like God
those who abide by its terms.
So the laws that are presented
in the Holiness Code are
introduced with this
exhortation, which you don't
find in other places.
 
Leviticus 19:2:
"You shall be holy for I,
the Lord your God,
am, holy."
And then the laws begin;
"You shall each revere your
mother and father,… keep my
Sabbath," etcetera,
etcetera.
But the introduction,
"You shall be holy for I the
Lord your God am holy"--being
holy in imitation of God is
emphasized repeatedly as the
purpose of the laws in the
Holiness Code especially.
The holiness motif is
represented as being present at
the very inception of the
covenant.
When Israel is assembled at
Mount Sinai, that opening speech
that God makes in Exodus 19:5
and 6,
"Now then, if you will obey Me
faithfully and keep My covenant,
keep my laws,
you shall be My treasured
possession among all the
peoples.
Indeed, all the earth is Mine,
but you shall be to Me a
kingdom of priests and a holy
nation."
These are the rules that
demarcate you as dedicated to
me; i.e.
holy.
Now, there are lots of general
and specific similarities and
parallels between Israelite and
Ancient Near Eastern laws.
Lots of goring oxen,
lots of pregnant women who are
in the wrong place at the wrong
time and getting struck and
accidentally miscarrying.
 
But we're going to look at some
of the formal and stylistic
differences between Ancient Near
Eastern and biblical law.
And we can assume just a
tremendous amount of common
ground, okay?
And some of these are pointed
out by Greenberg and some by
other scholars.
But I've listed them there
under "features."
One distinguishing feature of
Israelite law is the addition of
a rationale or a motive clause
in many of the laws.
Which again is not something
that's really featured in the
genre of law writing in these
other collections.
It's not a part of the genre of
writing those.
It doesn't mean they didn't
have a rationale,
but it wasn't how it was
presented.
So we find this in the Bible
particularly in what we might
refer to as the humanitarian
laws.
And on the whole,
these rationales will appeal to
historical events like the
exodus or creation.
Here are a few laws that
express the idea that the
experience of slavery and
liberation should be the
wellspring for moral action.
 
It should be the impetus for
moral action.
Exodus 22:20:
"You shall not wrong a stranger
or oppress him,
for you were strangers in the
land of Egypt."
23:9: "You shall not oppress a
stranger, for you know the
feelings of the stranger,
having yourselves been
strangers in the land of Egypt."
And Leviticus 19 contains a
similar exhortation not to wrong
a stranger who resides with you,
but "love him as yourself for
you were strangers in the land
of Egypt."
Likewise, in Deuteronomy 5
--this is the Decalogue in
Deuteronomy--which is talking
about Sabbath observance,
and ensuring that all in your
abode rest "…you,
your son or your daughter,
your male or female slave,
your ox or your ass,
or any of your cattle…"
"stranger in your settlements,
so that your male and female
slave may rest as you do.
 
Remember that you were a slave
in the land of Egypt and the
Lord your God freed you from
there."
Also , "For the Lord your God
is God supreme and Lord supreme,
the great, the mighty and the
awesome God who shows no favor
and takes no bride."
 
Takes no bride also!
 
But takes no bribe "…but
upholds the cause of the
fatherless and the widow,
and befriends the stranger,
providing him with food and
clothing.
you too must befriend the
stranger, for you were strangers
in the land of Egypt."
 
We have two rationales there;
one is the explicit rationale
of imitatio dei.
 
This is what I do and this is
what you should do.
And there are more.
 
Many of them referring to the
exodus in Egypt and others
referring to the notion of
imitatio dei.
So it's also illuminating to
compare the Ancient Near Eastern
and the biblical legal materials
in terms of the concern for the
disadvantaged,
the elimination of social class
distinctions,
and a trend toward
humanitarianism.
Greenberg notes that the
Torah's concern for the
disadvantaged of society is
quite marked in the actual laws
themselves.
Many of the extra-biblical
legal collections pay homage to
this idea in their prologues.
 
It doesn't always seem to be
appearing, however,
in the actual terms of these
collections.
Now, these collections are
incomplete.
We don't have everything.
 
And again, it may be another
literary genre that accomplished
some of that work in that
culture.
The Torah laws-- And also,
the laws in those collections
very often, despite the
prologues' rhetoric that they
bring justice to the
disadvantaged and so on,
many of the laws clearly serve
the interests of an upper class.
Okay, that's the more important
point.
They clearly serve the
interests of an upper class.
The Torah laws do not contain
all the same distinctions of
social class among free persons
as the contemporary laws--the
Laws of Eshnunna,
the Laws of Hammurabi.
These laws distinguish between
punishments for crimes committed
against upper class and lower
class persons,
not to mention slaves.
 
So if we look at the Code of
Hammurabi, there's a stretch of
laws numbering 195 to 208
something.
And they're--very interesting
to read them all in a row.
I'll hit some highlights.
 
So if an upper class person,
if an aristocrat has destroyed
the eye of a member of the
aristocracy, they destroy his
eye.
If he breaks his bone,
they break his bone.
 
But as you move down to 198,
if he destroys the eye of a
commoner or breaks the bone of a
commoner, he pays one mina of
silver.
And if it's a slave,
he pays half the value of the
slave.
On to 200 and 201:
If he knocks out an
aristocrat's tooth,
they knock out his tooth.
But if it's a commoner's tooth,
he pays a third of a mina of
silver, and so on.
 
The Hittite laws too:
there are different amounts
fixed by class in the
miscarriage laws,
95 and 99.
The middle Assyrian laws also
distinguish between the
awilum,
the mushkenum and the
slave.
Leviticus 24:17-22--we have,
there, laws of personal
liability;
bodily injury,
assault and battery or bodily
injury.
And we find a clear and
explicit statement to the effect
that there shall be one standard
for citizen and stranger alike.
This is known as the principle
of talion;
lex talionis.
 
So reading from Leviticus,
"If anyone maims his fellow."
"If anyone maims his fellow,
as he has done so shall it be
done to him: fracture for
fracture, eye for eye,
tooth for tooth.
The injury he inflicted on
another shall be inflicted on
him… You shall have one
standard for stranger and
citizen alike:
for I the Lord,
am your God."
This was a radical concept in
its day, evidently.
The punishment should fit the
crime, no more and no less for
all free persons--granted slaves
are not included--regardless of
social class.
Equality before the law.
And this casts the principle of
talion,
I hope, in a new light.
 
The law of talion,
which is essentially the
principle that a person should
be punished according to the
injury they inflicted,
it's been decried as a
primitive, archaic reflex of the
vengeance or vendetta principle.
The notion of "an eye for an
eye" is usually cited or held up
as typical of the harsh and
cruel standards of the vengeful
Old Testament God.
 
But when you look at it in a
comparative light in its legal
context, we see that it's a
polemic against the class
distinctions that were being
drawn in antecedent and
contemporary legal systems,
such as the Code of Hammurabi.
According to the Bible,
the punishment should always
fit the crime regardless of the
social status of the perpetrator
on the one hand or the victim on
the other.
All free citizens who injure
are treated equally before the
law.
They're neither let off lightly
nor punished excessively.
 
If you read the middle Assyrian
laws, don't want to do that on
an empty stomach.
 
A.20, A.21 and F1--you have
multiple punishments that are
carried out.
Someone who causes a
miscarriage: they have a
monetary fine,
they have to pay two talents
and 30 minas of lead.
They're flogged 50 times and
then they have to do
corvée,
forced labor for the state for
a month.
Multiple punishments.
For sheep stealing,
that's even worse.
You're flogged 100 times and
they pull out your hair and
there's a monetary fine,
and you do corvée,
forced labor,
for a month.
So are these ideas--is this
idea that the punishment should
be neither too little nor too
much,
it should match the crime,
that all free persons are equal
before the law,
that one standard should apply
regardless of the social status
of the perpetrator or the
victim--are these ideas really
primitive legal concepts?
In addition to asserting the
basic equality before the law
for all free citizens,
the Bible mandates concern for
the disenfranchised.
 
We've already seen that a
little bit in the laws of
Leviticus 19:9-10,
which says that you have to
leave,
you know, don't go over your
fields picking every little last
bit.
You know, just go through,
get what you need,
but leave a little bit behind
and let the poor and the
stranger glean there.
 
Deuteronomy is a little less
generous.
They substitute the phrase "the
widow, the orphan and the
stranger" in that law where
Leviticus says the poor.
Deuteronomy 24:20-22:
When you beat down the
fruit of your olive trees,
[or gather the grapes of your
vineyard;
see note 2]
do not go over them again.
 
That [which remains on the
tree]
shall go to the stranger,
the orphan [see note 3]
and the widow… Always
remember you were a slave in the
land of Egypt,
therefore do I enjoin you to
observe this commandment.
So Leviticus supports outright
charity for the poor in the form
of gleanings.
Kind of a welfare system.
 
Deuteronomy has more of a
workfare system in mind;
they actually never mention the
poor.
It's only Leviticus that
mentions the poor.
For Deuteronomy,
it's those who really can't
provide for themselves:
the widow, the orphan and the
stranger who may not be able to
find employment.
The poor should be working.
 
But you can assist them with
loans, according to Deuteronomy.
And these should be generous.
 
Here's Deuteronomy's admonition
to loan money to the poor even
if it means potential loss to
yourself because the seventh
year is imminent;
the sabbatical year.
In the sabbatical year,
all debts were released,
cancelled.
Okay?
Sort of an economic corrective
to restore people to a more
equal economic situation.
 
So in the sixth year,
some people will feel 'I don't
really want to lend money out.
 
It's going to be cancelled next
year.
I won't get my money back.'
 
Loans must be made even if the
debt will be cancelled,
for the simple reason that the
problem of poverty is a terrible
and persistent problem.
 
Deuteronomy 15:7-11:
If there is among you a
poor man, one of your brethren,
you shall not harden your heart
or shut your hand against your
poor brethren,
but you shall open your hand to
him and lend him sufficient for
his need whatever it may be.
 
Beware lest you harbor the base
thought, 'the seventh year,
the year of debt release is
approaching' so that you are
mean to your poor kinsman and
give him nothing.
You shall give to him freely,
and your heart shall not be
grudging when you give to him,
for the poor will never cease
out of the land.
Alright, the poor will always
be with you.
This is where it comes from,
but it gets misquoted later.
 
It's taken to mean the poor are
always with you,
so you don't have to do
anything.
That's not what it means here
in Deuteronomy.
Lend to them because the poor
will never cease out of the
land," therefore I command you,
open wide your hand."
Get busy, give charity.
 
It's a problem that never goes
away, so you can never rest.
Connected with this is the
biblical trend towards
humanitarianism.
And there is,
of course, much in biblical
legislation that offends modern
sensibilities.
There's no point in pretending
that there isn't.
 
For example,
as in the rest of the ancient
world, slavery existed in
Israel.
It did.
Even so, and this is not to
apologize for it,
there is a tendency toward
humanitarianism in the laws
concerning slavery.
The Bible is equivocating on
this institution.
In some societies,
in their legal systems,
it's clear that slaves are the
chattel, the property of the
master.
The Bible, again,
equivocates on this question.
 
They affirm some personal
rights for the slave,
but not all.
In contrast to,
for example,
the middle Assyrian laws,
where a master can kill a slave
with impunity,
the Bible legislates that the
master who wounds his slave in
any way, even losing a
tooth--which is understood to be
a minor thing,
because it's not in any way an
essential organ--so even if he
knocks out a tooth,
right, he has to set him free.
 
That's in Exodus 21:26-27.
 
Moreover, the slave is entitled
to the Sabbath rest and all of
the Sabbath legislation.
 
And quite importantly,
a fugitive slave cannot be
returned to his master.
 
That's in Deuteronomy 23:16-17:
You shall not turn over
to his master a slave who seeks
refuge with you from his master.
He shall live with you in any
place he may choose among the
settlements in your midst,
wherever he pleases;
you must not ill treat
him.
This is the opposite of the
fugitive slave law,
actually in this country in the
nineteenth century,
but also in Hammurabi's Code.
 
Right, Hammurabi's Code,
15,16 through 19:
"If a citizen has harbored in
his house either a fugitive male
or female slave belonging to the
state or private citizen and has
not brought him forth at the
summons of the police,
that householder shall be put
to death."
The term of Israelite,
Israelite slavery,
that is to say an Israelite who
has fallen into service to
another Israelite through,
generally, indebtedness--that's
a form that slavery took in the
ancient world and in the
biblical picture--the term was
limited to six years by Exodus,
by the Covenant Code.
 
In the Priestly code,
it's prohibited altogether.
No Israelite can be enslaved to
another Israelite.
So it's actually done away with
as an institution altogether.
In general, the Bible urges
humanitarian treatment of the
slave, again,
'for you were once slaves in
Egypt' is the refrain.
 
Other evidence of the trend
towards humanitarianism is the
lack of legalized violence in
the Bible.
Here if you compare the Middle
Assyrian laws,
you'll see something quite
different.
There, the middle Assyrian laws
explicitly authorize inhumane
treatment of a deserting
wife--you can cut off her ears;
legalized violence in the case
of a distrainee,
a distrainee is a pledge,
someone who has been placed in
your house because of a debt and
is working for you.
The citizen may do what he
wishes as he feels the
distrainee deserves.
 
He may pull out his hair.
 
He may mutilate his ears by
piercing them.
The middle Assyrian laws also
legalized violence against a
wife.
"When she deserves it" a
seignor may pull out the hair of
his wife, mutilate or twist her
ears.
There's no liability attaching
to him.
Legal systems often express
their values by the punishments
that are posited for various
transgressions.
And here, Moshe Greenberg has
done something very interesting,
a little controversial,
not everyone agrees with this.
 
But he's pointed out that the
Bible differs from the other
extra-biblical codes in the
value that it places on human
life.
And you consider the crimes
that are punished by capital
punishment, and the crimes that
are punished by monetary
compensation,
and he feels this is quite
revealing.
So I've put this very handy
little chart on the board for
you listing codes on one side.
 
And you'll see the kinds of
things that are punished by
monetary fine or compensation.
 
In the Hittite laws,
homicide--you pay a certain
amount of money to compensate
for the death.
Personal injury,
bodily injury,
you pay a certain amount of
money.
In the middle Assyrian laws
also, homicide--it's up to the
family.
They can decide how they want
this to be punished,
but they can take money.
Code of Hammurabi,
we only have an accidental
homicide case,
we don't have an intentional
homicide case,
so we don't know,
but bodily injury when it's
between equals,
then the principle of
talion applies.
But when it's not between
equals, monetary payment and so
on.
Death, on the other hand,
is the punishment for certain
property crimes instead of
personal injury and homicide
crimes.
Death for theft in the Hittite
laws and for bestiality.
In the middle Assyrian laws,
also theft and in the Code of
Hammurabi, theft and cheating.
 
I'll go over some of these in a
little more detail.
So Greenberg is going to argue
that the Bible reverses the view
of the other codes,
he says, because in those,
life is cheap and property is
highly valued.
So Hammurabi's Code imposes the
death penalty for the theft of
property, for assisting in the
escape of a slave,
which is its master's property,
for cheating a customer over
the price of a drink.
 
Middle Assyrian Laws:
there's death to a wife if she
steals from her husband and
death to any who purchased the
stolen goods.
The Bible never imposes the
death penalty for violations of
property rights--personal
property rights,
private property rights.
Only for intentional homicide,
and certain religious and
sexual offenses,
which are seen to be direct
offenses to God.
Greenberg argues that in so
doing, the Bible is expressing
the view that the sanctity of
human life is paramount in its
value system.
The Bible states explicitly
that homicide is the one crime
for which no monetary punishment
can be substituted.
You cannot ransom the life of a
murderer.
He must pay with his life.
 
Numbers 35:31-34:
"You may not accept a ransom
for the life of a murderer who
is guilty of a capitol crime;
he must be put to death.
 
Nor may you accept ransom in
lieu of flight to a city of
refuge."
Remember if it's an accidental
homicide, there is a leniency in
the law that that person can run
to a city of refuge and remain
there until the death of the
high priest.
The shedding of his blood
purges the land of "blood
guilt," if you will,
because this is a religious
crime.
But you can't pay money instead
of running to the city of
refuge.
"You shall not pollute the land
in which you live."
 
There's a notion here of blood
guilt, of pollution.
…blood pollutes the
land, and the land can have no
expiation for blood that is shed
on it, except by the blood of
him who shed it.
You shall not defile the land
in which you live,
in which I myself abide,
for I the Lord abide among the
Israelite people.
And outside the Bible,
we really don't have that
absolute ban on monetary
compensation for murder.
Greenberg has argued that for
the biblical legislators,
human life and property are
simply incommensurable.
Crimes in the one realm cannot
be compensated by punishment in
the other realm.
A crime in the realm of
life/personal injury has to be
compensated in the same realm.
In the same way property crimes
are not punished by death.
Also in the bible there's no,
what I call,
literal punishment.
 
You'll sometimes see people
refer to this as vicarious
punishment.
I don't think it's vicarious
punishment.
I call it literal punishment.
Literal punishment:
for example,
in the Code of Hammurabi,
where someone's ox kills a
child, then the ox owner's child
is killed.
That's not vicarious.
 
You're not substituting.
 
It's literal.
The legal subject is the father;
he has lost a child.
 
So I have to suffer the literal
punishment, as a father,
I have to lose my child.
 
Right?
It's not a substitution;
it's a literal punishment for
what you did to the other.
And the Bible explicitly
rejects that idea.
In Exodus 21,
it explicitly says that the
owner's child is not to be put
to death, is not killed.
Deuteronomy 24:16 states that,
"Parents shall not be put to
death for children,
nor children be put to death
for their parents:
a person shall be put to death
only for his own crime."
 
The equal value of human life
and limb is also protected by
the principle of talion
that we discussed above.
In the Code of Hammurabi,
an aristocrat can simply pay
money for injuring an inferior.
 
That's not going to be much of
a hardship to a wealthy person,
and it certainly reflects the
low value that's placed on the
life and limb of a member of the
lower class.
Talion only applies
between social equals in the
Code of Hammurabi.
 
In the Bible,
the extension of talion
to all free persons,
regardless of class,
expresses the notion that all
persons are of equal value.
In the case of rape,
the rapist's wife is not raped,
as happens in the middle
Assyrian laws.
Again, a literal punishment.
 
Other biblical values are
reflected in the emphasis on
laws that deal with the plight
of the poor,
the slave, the alien,
the rights and dignity of
debtors and so on.
 
I've reached just about the end
of my time.
Just one last statement,
because I don't want to leave
you with the impression that the
biblical materials speak with
one voice--they don't.
 
I mean, Greenberg has tried to
pull out some common values.
Biblical legal materials
contain provisions that
contradict one another.
 
Later versions of the law,
particularly in D for example,
will update and revise earlier
versions of the law.
Leviticus takes issue with the
whole institution of Israelite
slavery that's accepted in the
covenant quoted in Deuteronomy
and says just no,
that can't happen.
All Israelites are servants of
God;
none of you can be servants to
another.
So in these laws--there is
contradiction.
Nevertheless,
I think what Greenberg is
trying to say is that it is
still fair--even though the
materials contain
contradictions--it's still fair
to say that they sound certain
common themes.
They express certain important
principles and values,
which include:
the supreme sanctity of human
life: that's pretty consistently
maintained among the codes;
the value of persons over
property: pretty consistently
maintained;
the equality of all free
persons before the law:
consistently maintained;
the importance of assisting the
disadvantaged in society:
very consistently maintained;
the integration and the
interdependence of all aspects
of human life all coming within
the will of God to legislate:
very consistently maintained.
When we come back on Monday,
I just want to say a little bit
about the narrative context in
which the laws are found before
we move on into Deuteronomy.
 
Monday evening will be the time
at which the midterm exam will
be posted on the website,
and that'll be at 6:00 pm
Monday evening.
You'll have a 24-hour period of
time in which to find--I forget
what I said--30 or 40 minutes?
It'll be clear on the
instructions.
To just sit and treat it as if
you're in an in-class exam
situation, and write your essay.
 
