Rethinking Orthodoxy and Biblical Criticism III

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Kippah and Gown: Re-thinking Orthodoxy and Biblical Criticism

Essay 3: Brit Sinai in Ancient Context

In this series
* Essay 1
* Essay 2
* Essay 3
* Essay 4

In this essay we’re going to prepare to address the seeming contradictions between the narrative accounts of Sefer Devarim and the parallel accounts found in the earlier books of the Torah. I say preparing to address the issue, because, indeed, preparation is needed. We saw in the previous essay that the Ralbag correctly surmised that the repetitiousness of the Torah that struck him (and perhaps modern readers as well) as unseemly, was standard fare in the highest literature of the ancient Near East. In this essay we will see that a particular genre of ancient Near Eastern writing is central to understanding how many parts of the Torah are composed. In the next essay we will further see that in this genre we find the deliberate juxtaposition of mutually exclusive narrative accounts. Taking a note from the Ralbag, we will be open to the idea that even in the Torah “the navi expresses himself according to the convention of the time.” Taking a note from the Rambam, we will be undaunted by the striking similarities that we see between various passages from the Torah and passages found in ancient writings. Rather, we will seek out—as the Rambam himself did—the continuities and the discontinuities between those foreign literatures and the Torah. We will seek to understand how the Torah appropriates and adapts foreign concepts and institutions and uses them in the service of bringing Israel to a higher theological understanding.

It is commonplace that the Torah speaks of a brit that was formed between God and Israel at Sinai. But just what is a brit? Translating brit into English, “covenant” is of little help, and merely begs the question then, of what is a “covenant’? More to the point, we should note the unusual dynamics present in this relationship. Brit seems to be a compact, contract, or pact between two parties. Yet, in modern times both sides to a contract freely enter the agreement and each side has the right to decline entering the agreement, if it wishes. While Israel at Sinai expresses its agreement—na’aseh ve-nishma—it is also plain that she had little choice but to do so. Put differently, what we have at Sinai is a form of agreement where the parties are unequal, and where the lesser side (Israel) is expected to agree to the terms dictated by the stronger side (God). On the other hand, it seems that the stronger side is not tyrannical or cruel, but seeks a genuine relationship with the lesser side, but on His terms. There is no modern counterpart to this type of relationship.

However, we do see precisely this type of relationship in political treaties of the late second millennium BCE, the proposed period of the bondage, Exodus and settlement of the Land. This type of relationship—bi-lateral but fundamentally between unequals; dictated, yet while establishing a positive relationship between the parties—is found in what are known as the vassal treaties of the period, between stronger and lesser kings. The Torah articulates the relationship between God and Israel as one between a great king and a lesser king engaged in just such a treaty.[1. The notes of convergence between vassal treaty modalities and the Torah have been well-documented in the scholarly literature for more than sixty years, with more insights added on a regular basis. See the summary in my Created Equal: How the Bible Broke with Ancient Political Thought (Oxford, 2008), 28-44.] In the fourteenth and thirteenth centuries BCE, all nations around the eastern Mediterranean rim participated in these relationships. What I will show here are some of the ways in which the Torah adopts—and yet adapts—this idea, to help Israel understand the nature of her relationship with her Heavenly King. This will set the table for the next chapter, in which we examine the role of contradictory narratives both in the treaties and in the Torah.

I. The Historical Prologue

The central part of the vassal treaty, as with any contract, is the stipulations it contains: the obligations to be undertaken by each of the parties. But this is not the first element that we find in these treaties. Almost universally, these treaties opened with an historical prologue, which delineates the events that led to the establishment of the treaty between the stronger and lesser king. Oftentimes written at great length, it tells of the salvation rendered by the sovereign on behalf of the vassal that led the vassal to subordinate himself to the sovereign: a stronger king could send troops, thereby affording the lesser military salvation, or he could send food supplies in time of drought. Universally in these treaties, we find that the lesser king appeals to the stronger for assistance. The stronger king agrees to act on behalf of the subordinate, but does so without specifying conditions. Once salvation has been delivered, it is clear to all parties that the sovereign may now dictate the terms of an amicable relationship between the two, and that the lesser is expected to agree to those terms, in recognition of the salvation offered him. The stipulations put forth by the sovereign upon the lesser king always follow this prologue.

This helps us understand the brit at Sinai.[2. Although the term brit is used to describe commitments made to Avarham, Noah and Pinchas, it is clear that the extended bi-lateral nature of the brit between God and Israel is a distinct category of brit. This category alone is the subject of this essay.] The account of the brit at Sinai in Shemot 19-24 is preceded by the story of the Exodus. Put differently, the Torah tells us about the beneficence of the sovereign toward the subordinate similar to that found in the vassal treaties. Strikingly, these treaties would begin with the formula “The words of [name of the sovereign king]” followed by a delineation of the favor bestowed upon the subordinate. The Decalogue reveals such an introduction. Before the delineation of the laws themselves, we find the following introduction (Shemot 20:1-2): “God spoke all these words, saying: ‘I the Lord am your God who brought you out of the land of Egypt, the house of bondage.’” Notice the basis upon which God enjoins Israel. He identifies Himself not as the god who created heaven and earth, but as the god who bestowed a great favor upon the “kingdom” of Israel (cf. Shemot 19:6), and is thus deserving of their subordinate loyalty. Note that the phrase “I the Lord am your God who brought you out of the land of Egypt, the house of bondage” is surely unnecessary after 19 chapters of exodus and delivery that clearly delineate that this is so. At this juncture in time, however, God is entering into “treaty” with the Israelites, and hence the formal need within the written contract for the grace of the sovereign to be documented.

As noted earlier, the vassal treaties usually indicate that the relationship between the two kings would be initiated by the subordinate king, appealing to the sovereign king for assistance. This pattern emerges from the narrative of the early chapters of the book of Shemot. The process of divine salvation begins only after Israel cries out (2:23). The Torah then notes that God indeed heard their cry (2:24-25), a detail which He repeatedly underscores as he tells Moshe of His intention to deliver them from bondage (3:7, 9).

II. Treaty Stipulations

Following the historical prologue the vassal treaties typically enumerate the stipulations imposed upon the subordinate by the sovereign that were to be the expressions of his loyalty. Many of the treaties restrict the political activity of the subordinate king. He may enter alliance only with the sovereign. One treaty warns the vassal of punishment, “if you seek the well-being of another [king]… thereby you will break the oath.” Such clauses add new dimensions to readily familiar passages in the Torah. The opening stipulation of the Ten Commandments, “You shall have no other gods beside Me,” is readily understood to a contemporary reader from an epistemological perspective: God, who took Israel out of Egypt, is the only true god. All other “gods” are false. Yet, the command takes on a different light when seen in the context of ancient Near Eastern treaty formulations. God is the sovereign, Israel the subordinate. When Israel reveres another god it violates a relationship; it expresses ingratitude in light of the favor and grace bestowed upon her by God the sovereign, as laid down in the “historical prologue” of the Decalogue, indeed, as laid out in the entire narrative of Sefer Shemot to that point (cf. Shemot 34:12, 15). For the subordinate king to establish treaties or other ties with another power would be tantamount to treason.

One term found in the treaty literature elucidates the identity of Israel as a chosen people. The biblical term for “chosen” people is sĕgūllâ (Shemot 19:5). In one document, a favored vassal of the king of Ugarit is called the sglt of his sovereign. Importantly, the term implies both subordination and yet also distinction. Indeed, this tension between distinction on the one hand and yet subordination on the other, seems to be implicit in the first reference to “choseness” in the Torah It is in the opening verses of the brit narrative of Shemot 19: “Now, then, if you will obey me faithfully and keep My covenant, you shall be My treasured possession (sĕgūllâ) among all the peoples, for all the earth is mine” (19:5). Entering into covenant renders Israel a subordinate. But she is promised favored status among God’s subordinates, when faithful to the terms of the subordination treaty.

Some of the treaty stipulations have remarkable parallels in the Torah. In some treaties we find that the subordinate king must make regular appearances before the sovereign. One treaty states that the vassal king “must come before his Majesty and look upon the face of His Majesty. As soon as he comes before His Majesty, the noblemen of His Majesty (will rise) from their seats. No one will remain seated above him.” Note that the visit of the vassal is a state visit replete with honor, as the sovereign king’s nobles must rise in his presence. The visitation is an act of “looking upon the face of His Majesty,” a term used throughout the Torah to refer to a court appearance (e.g. Bereshit 43:3, 5, 23; Shemot 10:28-29). We find similar language in the stipulations of the brit narrative of Shemot 19-24. In 23:17, we read “three times a year, all of your males shall be seen by the face of the Lord–Hashem” (cf. Shemot 34:23; Devarim 16:16). The mitzvah of aliyat regel—pilgrimage on the festivals– is a call to the vassal Israel to pay a visit of homage to the sovereign King of Kings.

The treaties routinely mandate the periodic reading of the treaty within the subordinate king’s court. In one treaty, the vassal is told, “(This tablet which) I have made (for you), shall be read out (before you three times yearly).” Once again, we see a parallel stipulation in the Torah, but one that is extended to include all members of Israel. In the vassal treaty the subordinate king is ultimately responsible to execute and follow the terms of the treaty, and thus he personally must hear its provisions read. But the covenant between God and Israel is consecrated with each and every person, and thus each and every person must hear it read, because each and every member of the people is responsible for its faithful implementation. We find, in fact, that “treaties” or, the terms of the covenant between God and Israel are read out before the whole people on a number of occasions: at Sinai (Shemot 24:3-4, 7-8), and at the mitzvah of Hakhel (Devarim 31:10-13).

III. Deposit of the Treaty in the Temple

The next typical element of the vassal treaty called for a copy of the treaty to be deposited within the temple of the subordinate’s deity. This would demonstrate and affirm that the local deity of the subordinate was interested in the fulfillment of its terms. It also sent an implicit message to the inhabitants of the subordinate state that the treaty was now to occupy a central place within their value system. The Torah adopts this same idea, but transforms it to help Israel realize its “treaty” obligations. The text of the “treaty” or, at least a part of it–the Tablets of Testimony (luhot ha-brit)–was deposited within the Ark of the Covenant (aron ha-brit) within the Kodesh-kodashim (Shemot 25:21; 40:20; cf. Devarim 31:26). In this fashion, Israel the subordinate would symbolically recognize the place of the treaty with the Divine Sovereign within their own value system. Notice, specifically within Sefer Shemot that the tablets are called luhot ha-edut, the Tablets of Testimony, and the ark is called the aron ha-edut, the Ark of Testimony. The ark and its tablets bear testimony that Israel is obligated to fulfill the stipulations written on the tablets. Within the pagan logic of the vassal treaty, the vassal deposited the tablets of the treaty into the temple of his own god, displaying that that god attested to the binding nature of the treaty. At Sinai, of course, the “deity” of the subordinate king is none other than the sovereign king, the Almighty.

From the treaty literature we learn that if the tablet inscribed with the text of the treaty was lost or stolen, it would need to be replaced. The apparent need for a replacement copy of a treaty tablet is well attested in the Torah as well; the breaking of the Tablets by Moshe necessitates the drafting of a new set of tablets (Shemot 34:1-4). A sovereign king would grant the vassal treaty tablet royal legitimation by sealing it with his seal. The Tablets of the Covenant are consecrated by the fact that they are inscribed by God Himself (Shemot 32:15-16; 34:1, 28; Devarim 10:1-4).

Expanding our focus from the Sinai narratives of Sefer Shemot to the structure of Sefer Devarim, we see that the treaty elements we have identified are best represented within that book. The book opens with a pedagogic history (chs. 1-11) followed by extensive stipulations (chs. 12-26). There were, however, two other typical elements of the vassal treaty form—elements found always at the end of those treaties–that come into play in the final chapters of Sefer Devarim: witnesses to the treaty and blessings and curses.

IV. Witnesses to the Treaty

Vassal treaties typically included a long list of divine witnesses that were called upon to enforce the treaty and to punish the subordinate in the event of violation. These were often gods of the natural world. One representative text reads:

The mountains, the rivers, the springs, the great sea, heaven and earth, the winds and the clouds. They shall be witnesses to this treaty and this oath. All the words of the treaty and oath which are written on this tablet–if (name of vassal king) does not observe these words of the treaty and oath, but transgresses the oath, then these oath gods shall destroy (name of the vassal king).

Similalry, the natural elements of the heaven and the earth bear witness to God’s treaty with Israel (cf. Devarim 4:26, 30:19; 32:1).

V. Blessings and Curses

Finally, these vassal treaties concluded with blessings that would be bestowed upon the subordinate by the gods in exchange for his loyalty, and, conversely, curses that would befall him, in the event of violation of the terms of the treaty. These were usually juxtaposed, and located at the end of the treaty, as in the following passage:

If you… do not observe the words of this treaty, the gods… shall destroy you… they will draw you out like malt from its husk. … And these gods… shall allot you poverty and destitution… Your name and your progeny… shall be eradicated from the earth. The ground shall be ice, so that you will slip. The ground of your land shall be a marsh of [tablet broken]… so that you will certainly sink and be unable to cross.
If you observe this treaty and oath, these gods shall protect you… together with your wife… her sons and grandsons…

Both in Vayikra 26 and Devarim 28, similar conventions are employed. A series of blessings of prosperity and bounty open with the phrase “If you heed… then…,” (Vayikra 26:3; Devarim 28:1) followed by a longer, more elaborate series of curses, which likewise opens with the phrase, “if you do not heed… then…” (Vayikra 26:14; Devarim 28:15).

To summarize: We have seen only some of the ways in which the Torah portrays the relationship between God and Israel as that between a vassal and his sovereign king.[3. The language and structure of what Chaza”l called the passages of mesit-u-mediyach and ir ha-nidachat (Devarim 13:7-19) are remarkably similar to those found in the clauses of treason found in one of these treaties. The language of treason against the king is transformed in the Torah to the language of apostasy against God. See my, “CTH 133 and the Hittite Provenance of Deuteronomy 13,” Journal of Biblical Literature 130,1 (2011) 25-44.] Following the Rambam’s approach to sacrificial worship we have explored the continuities and the discontinuities that the Torah displays with respect to the original, pagan institutions. We have noted how it adopts those concepts even as it adapts them. We can see within this use of the vassal treaty model, the manner in which the Torah introduced Israel to the idea of the kingship of God. Moreover, the Torah uses this model to help concretize for Israel what it means to be in relationship with God, using a model that was readily familiar throughout the region at that time. We have always known that the Torah portrayed God as a sovereign, a king. The vassal treaty literature allows us greater definition in our understanding of God as king and we as His servants.

The striking similarity between these ancient treaty forms and various passages of the Torah raises an understandable question: Does this mean that all members of Israel were presumed to have advanced degrees in Hittitology and Ugaritic? And if not, wouldn’t they have been as clueless about all this as are most laymen today?

It is unlikely that many in Israel had a rich knowledge of ancient languages. At the same time, all possessed a much, much richer familiarity with ancient culture than we have today. Many of the elements found in the vassal treaties and in the Torah are taken from the warp and woof of day to day life in the ancient world. Everyone knew that “to see the face” of a king meant to pay a court visit, just like all of us know what “swearing in” or “death row” means. You don’t need a degree in political science or criminology to understand those phrases; they are simply common stock phrases of our culture. Natural bodies were invoked as witnesses for all sorts of things in the ancient world, and blessings and curses were bestowed to encourage compliance with commitments of all kinds. What we understand today is that these are brought together in the Torah in a constellation that we can recognize as a reflection of the idea of the relationship between vassal and sovereign. These forms of relationship between cities and states existed far and wide during this time. I suspect that local residents in a vassal state knew that their state was subservient to a larger empire. Indeed, the Tanakh speaks at length about such arrangements (e.g.. Yishaya chs. 30-31), so the general idea was readily known to anyone who heard the prophets. The more literate and knowledgeable may have understood these parallels more deeply. But it has always been the case that the Torah and the Tanakh communicate both to more learned and literate audiences on one level, as well as to more simple folk.

While all of this is fascinating in and of itself, we engaged the form of the vassal treaty and its relationship to the idea of brit in the Torah with a single purpose in mind: to prepare ourselves to investigate the issue of seemingly conflicting narratives between those found in Sefer Devarim and the parallel narratives found in the other four books of the Torah. We have seen that the vassal treaties in question wrote at length about the events that lead up to the establishment of vassalage between the lesser and greater king, in what I termed the historical prologue to the treaties. To understand the conflicts, however, between the stories in Devarim and elsewhere in the Torah, we will now need to take a closer look at the genre of the historical prologue, and ask what type of writing it is, what its purpose was, and whom it was composed for. That will enable us to understand anew the stories of Devarim, in our concluding essay.

(Next installment scheduled for tomorrow)

About Joshua Berman

Joshua Berman is a professor of Tanakh at Bar-Ilan University. He learned at Yeshivat Har-Etzion and has semikhah from the Israeli Chief Rabbinate. Among his books are The Temple: Its Symbolism and Meaning Then and Now (repr. Wipf & Stock, 2010) and Created Equal: How the Bible Broke with Ancient Political Thought (Oxford, 2008), a National Jewish Book Award Finalist in Scholarship.


  1. Thank you Rabbi for a fascinating series. I have two questions.

    1. In the cultural context of the ancient east, was there a mechanism by which either party can either break the brit, or renegotiate its terms?

    2. How does this analysis fit within the context of the prophecy to the the Avos? The covenant between Hashem and Israel is not just based on the cries of Israel in Egypt and their subsequent redemption from slavery by Hashem. There is also the fulfillment of a promise that Hashem made to the Avos. A brit Avos which we also continually bring into the forefront of our religious consciousness through our daily davening. How does this prior prophecy given in sefer Bereishit fit into your analysis?

    • In treaties from the period we are looking at (15th-13th c. bce), treaties were personal–between kings. So when either the sovereign or the vassal was replaced, the treaty could be updated. The treaties could also be renogtiated if one side breached the earlier terms. The new treaty would reflect new terms; kind of like a couple getting back together after a separation: “I’ll get back together with you, but only if this time x, y, and z.”
      As I noted in footnote 2, the idea of brit with the Avot works differently. What I am explaining here is not the word “brit” but the relationship between God and Israel as portrayed across the Torah.

  2. Thank you Prof. Berman for the fascinating series. I have learned a lot from reading as much as I can of your work in the last year or so. Thank you. A few general questions if I may:
    1. you mention that the convergence between vassal treaty modalities and the Torah has been known for 60 years. I recall reading something similar in Prof. Kitchen’s book that the convergence between Devarim and specifically the hittite treaties of the 13th-14th century BCE has been known for a long time. I imagine though that they still teach in most (all?) university courses that Devarim was written in the late Bais Rishon (if not later). As an outsider to the field I find this very confusing. How do they reconcile this?
    2. What books would you recommend for the layman to get a background understanding of life in the Ancient Near East? Is Pritchard’s The Ancient Near East the standard?
    3. I recently read Jared Diamond’s discussion in his latest book of conflict resolution in traditional societies and all of a sudden the concept of goel hadom and ir miklat made more sense. Is there a discussion somewhere of what conflict resolution looked like specifically in the Ancient Near East and how that might relate to ir miklat?
    Thank you!

    • JB – I like your initials :-).
      1. That is an excellent question. What many scholars would say is that although we see strong parallels between treaties from the 15th-13th c., that does not mean that these modalities reached Israel at that time. There are a number of hypotheses about how these modalities may have reached Israel at a later time. I personally do not find these convincing. Were we to continue to find these modalities in the writings of other cultures throughout the First Temple period, then scholarship would be on stronger footing to claim that these ideas and forms experienced diffusion across many cultures. But the epigraphic record does not bear this out. These forms largely disappear after the 13th century. There are treaties from 7th c. Assyria that also bear similiarities with some material in the Torah, but there are far more parallels from the earlier period, as was pointed out by Moshe Weinfeld, one of the leaders of this field.
      2. Gosh, background reading about the ANE: that’s tough because there’s just so many areas to cover. Just think about a book about “life” today: it would cover warfare, religious, family and a zillion other things. Prtichard’s anthology simply brings together original sources from the ANE, but with relatively little commentary. There are good books on life in the ANE, but they tend to be devoted to specific areas. maybe email me separately and I can make a suggestion.
      3. There a number of academic articles on this topic; if you want email separately, and we can talk about what be accessible to you.

  3. Seth Avi Kadish

    Thank you Professor Berman. I have only one small regret about this essay: If only you had posted it *before* Yom Kippur! It would have been perfect. But it is also meaningful looking towards Sukkot as well…

    You have provided a beautiful model of how scholarship has the potential at times to deepen our avodat Hashem.

    Hag Sameah

  4. Seth Avi Kadish

    One more thing: Extremely valuable in the future, not just for the Orthodoxy and biblical scholarship discussion but also on a plain Torah level, would be a discussion of other prominent kinds of covenant: In Genesis (with Noah and the Avot as you wrote in note 2), and later on with the kohanim, with David, and with Jerusalem.

    Hag Sameah

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