The origins of law in ancient Israel have long been the subject of debate. What are the issues and major positions in this debate, and by focusing on the relevant biblical sources, how would you evaluate them and reach your own conclusions?
Discussion about the “origins” of “law” in ancient Israel can go many different directions. On the one hand, the phrase itself “origins of Israelite law” goes back to A. Alt’s important monograph on the subject that used the form-critical classifications of “apodictic” and “casuistic” to get at the ultimate origin and life-setting of the formal laws found within various bodies of texts that have been identified as “law codes” by modern scholars. This type of form critical approach is usually complemented by a comparison between the different “codes” for a window into the historical development of law within the documentary sources (JEDP). On the other hand others have shown an interest in seeing the laws of the Pentateuch, as well those represented in the narrative or poetic portions of the HB, as representative of the juridical thought of Judah and Israel (if not actual laws put into practice) and have investigated theses laws as they would have been applied during biblical times. A major issue whether one looks the development of law within Israel through source and form criticism or looks to discover how law functioned in everyday life is its relation to the legal traditions in the greater ancient Near East, particularly in the cuneiform culture of Syria-Mesopotamia.
Decalogue(s) Exod 20:1-17 / Deut 5:1-21 / (“ritual Decalogue” Exod 34:11-26) Covenant Code/Book of the Covenant Exod 20:22-20:33 Deuteronomic Code Deut 12-26 (really 15-25 with clustering in 21-22) Holiness Code Lev 17-26 (but notably 18-20, 25) Priestly Laws Lev 5/Num 5; Num 35
Alt’s Contribution ReviewedEdit
Albrecht Alt argued that the laws of the Pentateuch could be differentiations by their form and that these give us clues to their ultimate origin. Alt argued that the casuistic law of the Pentateuch (the “if…then” laws) have their origin in the local juridical courts of Israel, since the laws as they stand could have been used in courts and make no mentioned of appointed judges or priests. Alt also argues that since the casuistic laws do not seem to carry any sort of particularly nationalist sentiments or specifically talk of Yahweh (only elohim), and because this form is very common in the legal tradition of the law codes of Mesopotamia that Israel borrowed these forms from the local Canaanite population (not directly from Mesopotamia). Alt then argues that the apodictic laws (“thou shalt”) are a distinctly Israelite form and that their bold and unconditional pronouncements are indicative of divine law that makes demands that cut across religious, moral, and secular boundaries. He places these laws in the covenant renewal festival during the Feast of Tabernacles (New Year), but not yearly (as Mowinckel advocated) but only every seventh year.
Alt’s reconstruction and assessment of the origin of the pentateuchal laws has been enormously influential, but has been heavily critiqued as well. Alt’s assessment provides a chance to discuss how the data has changed and scholarly opinion has changed with it. Alt’s form critical categories have been challenged and has been critiqued for including too many formula into his category of apodictic laws. Some include the participial forms (he who does X…) as part of the casuistic laws (Noth). Patrick Miller differentiates two types of casuistic laws, remedial laws (those that remedy through penalty) and primary law (those that regulate terms of relationship ‘if you lend money…charge no interest’ (Ex 22:25)). The inclusion of curses within casuistic law has also been called into question. Others prefer better suited names to the different categories, opting for conditional and unconditional in place of casuistic and apodictic. The central important of form criticism as a method, which held high important in the early and mid-twentieth centuries has waned in the twentieth and into the twenty-first centuries. Its demand for precision in discussing the present form of a text is something has continued to be influential especially in rhetorical criticism (which has its origins in form-criticism) and this is paralleled by the attention the a text’s final form in literary approaches. However, the basic premise that a single ‘form’ can have only one life-setting, and that this form will be ‘pure’ and that mixed forms are in some way adulterated forms are assumptions that are difficult to argue today since they hold evolutionary assumptions about complexity and value.
Additionally, the life-settings for the forms and the use or adoption by the Israelites have been shown to be problematic as investigation has moved forward. Alt saw the connection between Mesopotamian legal traditions in the Bible, but was rightly worried about such a direct link, but rather sought to connect the adoption of the legal forms via the Canaanites. This reflects Alt’s views that Israel was a foreign and nomadic entity that slowing encroached upon the settled and urban autochthonous Canaanite population. In more recent scholarship, however, the cultural continuity between Israel and Canaanites has been emphasized as fewer scholars see Israel as a foreign intrusion but an indigenous people who developed their identity from within Canaan as evidenced through language and archaeology. This type of thinking makes scholars more comfortable situating Israel an heir to the cultural inheritance of greater ancient Near Eastern legal traditions without needing to find any connecting link. The diffusionary model argues that the legal tradition diffused from Mesopotamia to other areas through oral and written sources. This type of understanding is advocated by Raymond Westbrook and his students. They understand the laws and legal precedents of Israel to be participating in a proper Near Eastern legal tradition while at the same time the laws themselves reflect distinct practices within Israel in biblical times. (Note: David Wright notes that this has two iterations, one that argues that this tradition was brought by cuneiform scribal schools during the 2nd millennium and then passed orally into the first, and another that assumes that these go back to Amorite practices that were independently recorded in the Mesopotamia and Israel.)
This diffusionary model has had a very provocative challenged by David Wright who supplants it with a literary model. Wright asserts that the Covenant Code was intentionally modeled upon the Code of Hammurabi, not during the Old Babylonian period, but during the Neo-Assyrian period when this collection as actively copied. He argues this based on the sequence of laws, their form, and content. This recent assertion is still being assessed in the scholarly community, many accept his arguments but others are quite cautious about his claims (an entire session at SBL was devoted to reviewing his book).
The diffusion model and the literary model are not mutually exlusive, but regardless it is apparent that still in the Middle/Late Bronze Age that scribal curriculum was present in Canaan. Two middle bronze age cuneiform fragments resembling laws similar to the code of Hammurabi were discovered at Hazor, and cuneiform texts have been discovered into the late bronze age (cf. Horowitz 2013).
Regardless of how one posits the connection between Israelite and Mesopotamian law, there is little disagreement that a connection exists. Similarities are usually seen in the principle of lex talionis (talionic justice, ‘eye for eye, tooth for tooth’) which is seen in the laws of Hammurabi (thought importantly not in some other law codes.) There is also the similarity between the laws of the goring ox, as well as, injury to a pregnant woman. The fact that these collections of laws are by no means comprehensive and the topics they choose are not systematic, it makes the correspondences between specific laws between the biblical and non-biblical sources all the more striking.
Alt’s view that the apodictic laws are distinctly Israelite have been called into question as similar such statements have been found within various writings in the ancient Near East. Imperatives occasionally appear in vassal treaties along with more common casuistic laws, and these are also found in non-legal texts, notablely in wisdom literature and Hittite and Akkadian ritual texts. Although we can see that Alt’s assertion that these are unique to Israel is incorrect, we can see that these direct imperatives find themselves more suited to wisdom and cultic genres rather than collections of laws, which does offer some interesting insights into their inclusion into the law collections of the Hebrew Bible.
Alt’s view that these have their basis in the court proceedings broaches the larger question of the relation of legal material within the bible to actual court proceedings. A relationship between the two has been called into question in Mesopotamia where far more documentation exists for both law “codes” as well as the practice of everyday law. There is not mention of legal precedent or any royal code or collection in any of the cuneiform legal documents in the ancient Near East. This has caused most to question the our understanding of the legal collections that have been previously called “codes.” They seem instead to be pieces of royal propaganda displaying to the people and more importantly the gods that they were models of just kings. The collections of laws found in scribal curriculum seem to be scholarly exercise possibly collecting legal precedents, but there does not seem to be any influence of these collections on the legal proceedings themselves.
Alt, Albrecht. “The Origins of Israelite Law.” In Essays on Old Testament History and Religion., translated by R. A. Wilson, 101–171. Garden City N.Y.: Doubleday, 1967. Gerstenberger, Erhard. “Covenant and Commandment.” Journal of Biblical Literature 84, no. 1 (March 1, 1965): 38–51. doi:10.2307/3264071. Greengus, Samuel. “Law: Biblical and ANE Law.” Anchor Bible Dictionary IV. New York: Doubleday, 1992. Horowitz, Wayne. “Hazor: A Cuneiform City in the West.” Near Eastern Archaeology 76, no. 2 (June 1, 2013): 98–101. doi:10.5615/neareastarch.76.2.0098. Selman, M. J. “Law.” Edited by T. Desmond Alexander and David W Baker. Dictionary of the Old Testament Pentateuch, 2003. Sonsino, Rifat. “Law: Forms of Biblical Law.” Anchor Bible Dictionary IV. New York: Doubleday, 1992. Westbrook, Raymond. Everyday Law in Biblical Israel: An Introduction. 1st ed. Louisville, Ky: Westminster John Knox Press, 2009. Wright, David P. Inventing God’s Law: How the Covenant Code of the Bible Used and Revised the Laws of Hammurabi. New York; Oxford: Oxford University Press, 2009.