Rethinking Orthodoxy and Biblical Criticism IV

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Kippah and Gown: Rethinking Orthodoxy and Biblical Criticism

Essay 4: Historical Discrepancies in Ancient Treaty Literature and in the Torah

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

In my previous essay we saw how the brit between God and Israel resembles the relationship between a sovereign and vassal in ancient Near Eastern treaty literature. In this essay we take a closer look at the historical prologue of that treaty and its potential to shed light on historical accounts in Sefer Devarim.[1. This essay is an adaptation of my study, “Histories Twice Told: Deuteronomy 1-3 and the Hittite Treaty Prologue Tradition,” Journal of Biblical Literature 132.2 (2013): 229-250.]

The vassal treaty was essentially a contract between sovereign and vassal, and many of the basic elements of our contracts are found in these treaties. Just as they listed stipulations that obligated each side, so do the contracts that we draw up today. They imposed penalties for breach of contract—through the form of curses—and so do we, through fines. They sought outside authority to back up the clauses—through divine witnesses—and so do we, through a notary.

I. The Historical Prologue of the Vassal Treaty as Diplomatic Signaling

However, there is one element of the ancient treaty form that finds no parallel in the contracts that we write: the historical prologue which described the events that led to the establishment of the treaty. I purchased a new home not long ago. We bought from a man in my community for whom I had long had great respect. But there’s no mention of that in the contract that transferred title to me. After a month of dating Michal, I knew that we would eventually get engaged. But our ketubah makes no mention of that. Our contacts today are “strictly business.” Why do these ancient contracts go to length to tell of the events leading up to the treaty?

When court scribes of the Hittite kings wrote these brief histories, they did so for the purpose of diplomatic signaling, of setting a tone for the relationship with the vassal

More background is necessary to understand the function of these compositions. The world in which these treaties arose—the eastern Mediterranean rim of the fourteenth and thirteenth centuries b.c.e. is the first in which we find an international order. Think of the geo-political situation today. No country exists in isolation. All countries seek alliances. Countries, of course, are primarily concerned with their immediate neighbors. But all countries today recognize that there is strength that comes by creating alliances with a group or groups of other countries. This is what political scientists call an international order.

Now, long, long ago, there were no such alliances with countries afar. The centuries in question are the first time that city-states in this region were acutely aware that they would be much better off establishing alliances with even distant neighbors than merely trying to go it alone. During this period, there were two regional powers: the Hittite empire, based in modern day Turkey, to the north and Egypt, a perennial powerhouse, to the south. At this time, the Hittite empire and Egypt played the roles of the sovereign. A large assortment of small city-states throughout the Levant—modern day Israel, Lebanon and Syria—would sign on as vassals to these larger states.

Although the Hittite Empire and Egypt were the largest and strongest players in the region they were not superpowers. They did not rule by the grip of fear, say in the way the Kremlin dominated Soviet bloc countries during the cold war, or the way that the Nazis installed puppet regimes throughout occupied Europe during World War II. The Hittites, whose records have been remarkably preserved, sought to leverage their advantage over the smaller, weaker states around them. They sought to form amicable alliances in which they could get the best terms possible. The smaller states, for their part, were trying to do the same thing. Sometimes they would ally with one another; other times they would jockey for position and try to play off the Hittites against the Egyptians—just as modern states do. Think of how Egypt jumped ship from the Soviet orbit to the American orbit in the wake of the Camp David Accords.

Today, we have news reports around the clock and instant communication. Nations today always know what’s going on around them. But back then, of course, things were different. All of the political entities of the time were in a constant state of jitters about their relationships: will my “ally” really be there for me if I face a crisis? Is he backstabbing me at this very moment? For this reason, vassals and sovereigns were in constant written correspondence with one another and constantly sending token gifts to one another as a way of stating, “don’t worry about me; our deal is still on.” We know all of this from a cache of more than 300 such letters from vassals to the king of Egypt in the fourteenth century known as the El Amarna letters.

This brings us to the historical prologue of the Hittite Empire vassal treaties. When court scribes of the Hittite kings wrote these brief histories, they certainly weren’t doing so for the sake of historians who would live 3200 years later. They did so for the purpose of diplomatic signaling, of setting a tone for the relationship with the vassal. Leaders today do it as well. When a leader visits another country, there may well be contracts signed and deals done. But part of what goes on in such a visit is to establish a tone for the relationship. The visiting leader will give public addresses. Usually, he or she will reflect on some aspects of the history of the two countries. If there is a history of tension between them, the public address might hint at what needs to change to further cement the relationship.

Hittite kings composed their versions of the history of the relationship with the vassal to project a message, an impression for the present

In the fourteenth and thirteenth centuries BCE, this type of diplomatic signaling between states was a critical component of statecraft. If I am a Hittite king, I am looking to establish a relationship with a potential vassal on the best terms possible. I find a vassal who is willing to sign with me, and we conclude a treaty with one another. Now the question becomes: what messages do I want to convey to the vassal about our relationship. It’s always a delicate balance of carrot and stick. They are always written from the first-person perspective of the Hittite king as a direct address to the vassal king. Sometimes I will feel that I will be able to best cement the relationship and get what I want from my vassal by being highly complementary to him and by addressing him in a fashion that instills confidence that I am there for him. And indeed, we find that some of these historical prologues are highly laudatory. Other times though, I, as Hittite king, might feel that I can get the most out of this vassal by intimidating him. In fact, in some of the prologues we find statements like, “you were a dead dog until I came and revived you and gave you land over which to rule.” The historical prologue, then, was the “speech” through which the Hittite king set the tone for the relationship that was now being established.

II. The Renewal Treaty and Discrepancies with the Original Treaty

Hittite kings wished their treaties to be long lasting. Therefore, when a vassal king died, the Hittite king would establish a renewal treaty with his successor. The idea was to stress continuity. The renewal treaty was a way for the Hittite king to say, “until now I had a treaty with your father, and now I will continue that treaty with you.” The record shows that sometimes the stipulations remained the same, and sometimes they reflected new realities, or a changed political situation. The river never does stand still in balance of power politics. When a Hittite king would pen such a renewal treaty, he would, of course, begin the text of the treaty with an historical prologue of how the parties got to where they were. And if he was penning a renewal treaty, then he would rewind the historical review back to the beginning: how the present vassal’s father or grandfather had originally come to accept vassalage to the Hittite throne.

Past communications provide a baseline for understanding the nuance and import of a given diplomatic statement

One series of treaties is between the Hittite kings and the rulers of a city-state called Amurru—quite possibly the Torah’s Emori. Here we find the original treaty and an additional three rounds of successive renewal treaties between these two parties. The original treaty, between Suppiluliuma of Hatti (the Hittite capital) and Aziru king of Amurru tells of how Aziru came to submit to the Hittite king. And all of the subsequent three renewal treaties across a span of more than a century, also retell that story. It is here that we see an astonishing phenomenon: each and every one of those telling is different. From treaty to treaty, the “facts” behind the initial treaty between Suppiluliuma and Aziru change. Moreover, the spirit through which Aziru came to Suppiluliuma is cast differently as we move from treaty to treaty. Some of the treaties describe the great joy that Suppiluliuma felt when Aziru joined him. Others suggest Suppiluliuma was merely having compassion on him. In fact, when we look across all of the Hittite treaties with their vassals we see the same phenomenon: when we find an original treaty and then a renewal treaty between the Hittite king and a given vassal, the story of how the original vassal king came to submit to the Hittite thrown is never told the same way twice. In most cases, the various versions are incompatible. Why is this?

The explanation is rooted in the identity we stressed earlier, in which the historical prologues are seen as diplomatic signaling, as a way of indicating to the vassal how the sovereign views him. At all times, the Hittite kings composed their versions of the history of the relationship with the vassal with one aim in mind: to project a message, an impression for the present. At all times the past was a resource that the Hittite king could use to shape the present. In the first treaty between Hatti and Amurru, it would seem that the Hittite king, Supiluliuma, was genuinely grateful that Aziru was abandoning an Egyptian coalition and joining forces with him. In the third treaty between them, some eighty years later, we see the sharpest differences in the account. At this point in time, Amurru had already rebelled once. The current Hittite king, Hatusili, now found it politically expedient to resuscitate the relationship, and thus forges a renewal treaty with the Amurru king, Bentesina, who was now being re-instated almost as a puppet. The tone that the Hatusili takes toward him is paternalistic and condescending. When the Hatusili describes the conditions under which Aziru had initially submitted to Supiluliuma, he makes no mention of Suppiluliuma’s celebration and appreciation as had been expressed in the prologue to the first treaty between the kingdoms. Instead, the relationship between Suppiluliuma and Aziru is made to sound a lot more like the current relationship between Hatusili and Bentesina.

Put differently, the purpose of telling the past is only to help shape the present. In fact, Hatusili even says to Bentesina that in spite of Amurru’s insurrection in the interim, he is prepared to offer him the same terms that Suppiluliuma had offered Aziru, some eighty years earlier. It is apparent from the text that Hatusili has a copy of that text, and expects that Bentesina does as well. Archeological evidence from across the region demonstrates that old copies of treaties were not discarded, but rather archived for further reference. We possess copies of that earlier treaty and can see that Hatusili was being true to his word: the stipulations that he offers Bentesina are those that Suppiluliuma offered to Aziru. Yet if Bentesina had compared the historical prologue of the earlier treaty with the one found in the renewal treaty he was now entering with Hatusili, he would no doubt have noticed the divergent accounts of how Aziru accepted subjugation to Supiluliuma. What was he supposed to make of that? Didn’t Hatusili realize that he would be caught in a lie?

The answer, once again, can be grasped by seeing these “histories’ as subordinate to the art of diplomatic signaling. A contemporary example illustrates the point: when a spokesperson for the United States Department of State says concerning an adversary that, “the military option is still on the table” that statement—that diplomatic signaling—only has meaning in the context of previous dispatches on the issue. If the spokesperson had commented in an earlier release, “we are sending the U.S. Seventh Fleet to the region,” then the newer statement, “the military option is still on the table,” signals a moderate, more restrained tone, even as it keeps the pressure on. By contrast, if the spokesperson had previously said, “all options are still on the table,” then the newer statement, “the military option is still on the table,” represents a ratcheting-up of the rhetoric by a notch. The point of this example is that diplomatic signaling always takes place within the context of the codes that both sides understand, and, most pointedly, the context of previous communications on the issue. Past communications provide a baseline for understanding the nuance and import of a given diplomatic statement.

This observation allows us to return to the question of twice-told histories in the Hittite historical prologues. Neither sovereign nor vassal had any expectation that these narratives would dutifully reflect history “as it really had been.” All sides understood that these were exercises in diplomatic signaling. The Hittite kings “updated” the past to serve the needs of the moment. Crucially, however, to write new history here was expressly not a process of erasure. There was no desire to forget how the story had been told in earlier generations. Rather, the retention of the previous telling of the history was crucial, even as that history was rewritten. Diplomatic statements today can be construed properly only against the grid of what has been said previously on the issue. The same was true for the vassals as they read the historical narratives of the vassalage sent them by the Hittite kings. Only by accessing the previous version of the history between the two kings, would the vassal fully grasp the nuance of the new version of those events, and properly digest the diplomatic signaling inherent in the telling. The whole point of retelling the story is to highlight those differences, to make some comment to the current vassal about the nature of his own relationship with the sovereign here and now. Every change in nuance between the accounts was carefully measured.

To illustrate just how closely the parties read these correspondences and how much was at stake in even the simplest formulation, consider the following passage from one of the El Amarna letters I referred to earlier (EA 42). The communication is written by Šuppiluliuma I of Ḫatti—the very same Hittite king who entered in to treaty with Aziru of Amurru—and responds to a letter he had received from the Egyptian king. Šuppiluliuma takes umbrage with the formulation of a sentence in the Pharaoh’s letter in which the Pharaoh’s name appears above his own:

As to the tablet that (you sent me), why (did you put) your name over my name? And who (now) is the one who upsets the good relations (between us), and is su(ch conduct) the accepted practice? My brother, did you write (to me) with peace in mind? And if (you are my brother), why have you exalted (your name), while I, for (my part), am thou(ght of as) a (co)rpse?[2. EA 42: 15-24 in William L. Moran, ed., The Amarna Letters (Baltimore: Johns Hopkins University Press, 1992) 115.]

Šuppiluliuma’s letter demonstrates that when a king received a diplomatic document—sent by royal courier, carefully engraved by an official scribe—he read it and interpreted it with the greatest of scrutiny. In contemporary times, leaders converse nearly at will. In the Amarna Age, by contrast, a king needed to weigh carefully the words that would be inscribed in the correspondence, as letters could take weeks or even months to transmit.

Across the rich record of documentation in our hands from the period, we find kings expressing their displeasure with one another over a host of issues. We never find, though, a vassal complaining that the Hittite king’s account of events was incorrect. This is the case even when the Hittite king himself offered conflicting accounts of that history. Both sides, I suggest, understood that the historical narrative offered in the prologue was an exercise in diplomatic signaling and read it and considered it on those lines only.

III. The Retelling of History in Sefer Devarim

The dynamics of history writing in the Hittite treaty tradition can help us make sense of the historical introduction of Sefer Devarim. The sovereign king, God, looks to renew the treaty with his rebellious vassal, Israel, as a new generation has supplanted the old. As noted, Sefer Devarim is constructed along the lines of a treaty: historical prologue (chs. 1-11); stipulations, or mitzvot (12-26) with witnesses and curses at the end. Sefer Devarim retells history in the fashion in which it is retold in the vassal renewal treaties. The accounts of appointing judges, of the spies, of the conquests of the area of the Transjordan are all told anew and given new agendas. Yet, this is not a process of erasure or denial of the earlier versions of those stories. We saw how a later king of Amurru could read the varying accounts of how his forefather, Aziru had submitted to Šuppiluliuma and note how those varying narratives reflected the nature of the bond between vassal and sovereign in each generation. Far from erasing the past and deceiving the servant kings, the Hittite kings intended the vassals to note the ways in which the history had been reworked. The changes that the vassal could plainly see for himself were to serve as an index of change in the sovereign king’s disposition toward him.

When the vassal has been unfaithful, the reworking of history reflects that

So too, we are to read the differing historical accounts in the earlier books of the Torah and in Sefer Devarim. We, as the audience of the Torah, are descendants of the earliest vassal, the generation of the wilderness. We are meant to discern the unilaterally more critical depiction afforded Israel in the accounts of Sefer Deavrim. This reproachful thread is a signal that as the rebellious vassal Israel renewed her covenant on the plains of Moab, she was now on different terms with her sovereign Lord, Hashem. At Sinai, there had been hope that all would go well. After forty years, Israel had strained that relationship severely. The retold history of the period with its alterations and emphases communicates that idea emphatically.

In Essay 1, I presented and critiqued both the harmonizing approach of the classical medieval exegetes and the source critical approach of competing histories. I would like now to examine the relative strength of the approach presented here. By reading the historical accounts of Sefer Devarim in the context of vassal treaty history telling, there is no longer any need to harmonize details. In fact, quite the opposite is so. The stories are retold precisely because the discrepancies are an index of change in God’s disposition toward Israel following her faithlessness as a vassal in the desert.

The treaty history approach I have developed here has several advantages over the the source-critical approach of mutually exclusive and competing histories. That approach had to explain the combination of purportedly contradicting histories together in the text of the Torah that we have received. It did so with recourse to a theory of anthology that has no ancient precedent. By contrast, the treaty history approach presented here is well-attested in the vassal treaties and joins a long list of other elements shared between that tradition and the Torah.

The competing histories approach was at pains to explain why the author of Deuteronomy had nothing of his own to say about the Patriarchs or the Exodus. For the treaty history approach, however, the choice of stories in Sefer Devarim is clear. This is not a general history. It is strictly a history of the relationship between sovereign and vassal—God and Israel after Sinai, and hence covers the period of the wandering only.

The competing histories approach was at pains to explain why this extended retelling of stories is found only in the Torah, but not with regard to any other segment of Israel’s history. The vassal treaty approach well explains this. The Hittite empire collapsed in the early 12th century, and no remnant of its treaty formulae survived thereafter. Only the Torah, whose narrated time covers the Late Bronze Age (15th-13th c. BCE) employs that literary model. Books written many centuries later would have been penned by authors who had no knowledge of this convention. In time, this phenomenon of conflicting accounts within a single work would be looked upon with embarrassment, as something that needed to be fixed. The Samaritans were perhaps the first to deal with this “problem’ by editing the text to bring it to greater internal harmony.

Although most history in the Tanakh is reported through the voice of the authoritative, omniscient scribe, history in Sefer Devarim is reported as an exhortation to recall what had happened “at that time” (1:16, 18; 2:34; 3:4, 8, 12, 18, 21, 23). The competing histories approach offers no reason why its author would choose to vary from the norm. The vassal treaty approach well explains this. The narratological tone is highly similar to that which we encounter in the vassal treaties: the sovereign essentially mandates the vassal to recall events that putatively are known to both sides and to draw the appropriate lessons.

Competing histories—as we find in the Divrei Hayamim in distinction from the accounts of Shmuel/Melakhim—are normally composed with an ideological agenda in support of some group or institution. Yet the narratives of Sefer Devarim seem to revolve around a single editorial line—greater criticism of Israel than is found in the earlier versions. The competing histories approach is at pains to explain why no group or institution emerges at the focus of this reworking. By contrast the vassal treaty approach well explains this. When the vassal has been unfaithful, we saw, the reworking of history reflects that. Episodes that once had been narrated in a relatively positive light now are retold with a more reproachful bend, reflecting the needs of the moment, and the current state of the relationship between sovereign and vassal.

We noted that that Sefer Devarim calls upon its readers to access accounts that we find in the other books of the Torah, such as the reference to Caleb’s exemption from divine wrath (1:36), the sin of Baal Peor (4:3), God’s anger at Aaron (9:20) and what befell Miriam (24:9). For the competing histories approach this presents a challenge: why would the author of the new history call upon his audience to access and acknowledge what was in his mind a flawed version of history, one that needed to be replaced? For the vassal treaty approach this provides no challenge at all. The accounts in Sefer Devarim are changed in many ways. But they do not supplant the earlier accounts. They only make sense if the reader is familiar with those earlier accounts. It is therefore eager to instruct the reader to re-read those earlier accounts.

As I mentioned in the previous essay, I do not assume that all of Israel had intimate understanding of diplomatic treaty formulations. My assumption is that the practice of retelling accounts in those treaties is a reflection of what was common practice: when an authority figure—a king in a treaty or a bard in a village—retells a story, his audience focused on how the message had changed, and not on the strict factual nature of the claims.

IV. Scholarship and Luck

I should like to conclude with a note about biblical scholarship and plain luck. There is much that we know today about the ancient world. There is also much that we don’t know. How much we don’t know is hard to say. The argument that I have made in these essays highlights for me how far removed we are from ancient ways of thinking and writing, and how much luck played into developing these ideas.

Much of the material that forms the basis for this theory was recovered from the archives of the great palace at Hatti. Unlike most other major capitals of the ancient world, Hatti was never ransacked. The empire crumbled and was abandoned in the early 12th century BCE amid drought and famine. That meant the archives were left largely intact, revealing a treasure trove for archaeologists and scholars 3200 years later. That’s good luck.

Most of the kingdoms of old that were situated in modern day Syria have never been excavated. But in 1929, a farmer set his plow into the plateau at Ras Shamra overlooking the Syrian coast and accidentally discovered the ancient kingdom of Ugarit. Much of the supporting material for this approach (which I did not bring here, but is available in my broader academic study) stems from those excavations. That’s good luck.

Late Bronze Age Hittite vassal treaties are an arcane field of study in which only a handful of scholars have major competence. But in 2004, the Israeli historian Amnon Altman composed his magnum opus, a study of all of the historical prologues of these treaties, in comprehensive fashion. That allowed me to engage these materials in a way that would not have been possible otherwise. That was my good luck.

Without the confluence of all three of these strokes of luck, the approach presented here would be hidden today. There is no way that a modern mind could possibly adduce such a theory without them. Scholarship aims to offer the best answers it can with what we know. When the answers provided seem strong and unimpeachable, that is a sound way to proceed. When the answers, however, are problematic, perhaps that is because there is so much that we still don’t know. Methodological modesty mandates us to always keep that in mind.

In an upcoming series of essays I will address the discrepancies between the laws in Sefer Devarim and their parallel iterations elsewhere in the Torah.

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. Very interesting series, I look forward to reading the series on the halachot of sefer devarim.
    What books would you recommend for someone with a yeshiva background to gain an introduction to the insights that modern scholarship has opened in learning tanach (in addition to “created equal” of course)?

  2. Very disappointed with this installment. Especially with his notion that G-d/Moshe would play loose with the facts because it fit the need.

    I very much buy into the “vassal treaty” format (Rabbi Shamah discusses this at length in “Recalling the Covenant”), and was hoping for a better “finish” than this, one that would flesh out the supposed discrepancies in this light.

    For example, focusing on the fact that the spies (all of them) did consider the land “good” while ignoring the fact that 10/12 of them added a giant “but” fits with presenting a historical prologue that sets up the covenant renewal without needing to allow for mis-truths or contradictions. Perhaps another piece can be written to show how the same holds true with other differing descriptions.

    Or maybe that’s too much to ask.

    Nevertheless, IMO the first three installments were worthy of Torah Musings. This one could have (and perhaps should have) been posted on TABC’s site instead.

    • Thanks for your comment, and especially for sticking with me all the way through this series. As I said in the first essay, already we see that Abarbanel “plays loose with the facts in order to fit the needs,” so the idea is not entirely without basis.
      But more fundamentally, I think that we need to shed some of our expectations, especially when reading “historical” texts. For us, as moderns, something is either fact, or its fiction. It’s either true or its not true. If those are the starting assumptions, then my approach denigrates the Torah – because it says that there are places where the Torah speaks untruths.
      But as I tried to argue, when people spoke about history in ancient times, it was with different aims in mind. I actually think that this approach is a bedrock of rabbinic writing. The vast majority of midrashei aggadah to the Torah tell us that the Avot, Moshe, and many others did things and said things that do not appear to be written in the Torah themselves. You can apply the modern standard here as well: “Did those things really happen, as the rabbis said they did? If not, then the statements are not true.” I don’t think chaza”l thought about history writing in this way. They, too, marshalled history writing for the spiritual needs of the moment. This is a hugely important topic that needs more attention.

  3. I’ve been enjoying these essay – even though they are hard for me to evaluate (I’m a pretty secular Jew.) I think that what is required in this field is for a person with your ideas to debate (even in back and forth essays) orthodox/academic Jews who see it differently. It would be much more interesting if we the readers could see how a professor Wright, or a Zev Farber, or a Kugel or a Carr would respond to your thesis.

    I think a back and forth is what is required for us to evaluate the different positions.

    Look forward to your next essays,


  4. I very much enjoyed the series, finding the vassal treaty analysis quite elegant in an abstract way. But if it is correct, would that mean that the generation that received the Torah got the point of Dvarim and now our generation gets the point, but that the Jewish people, during that 3,000 (??) year interval, didn’t get it? If that’s true (and perhaps I’m missing something), I’m bothered by it. If the Torah is divine, why would it be written in a way that would not be understood for 3,000 years?

    • From the sources I brought in Essay II, I think it is clear that Ramabam and Ralbag recognized this to be the reality – that the more we understand the ancient world, the better we will understand the Torah. And it will probably always be the case that there are things that we are missing in our understanding, because we are removed from that age. There is simply no way for anyone–even God–to communicate with equal clarity to every age. That is the reality of the human condition. That is why it is so important to excercise humility when we witness literary phenomena in the Tanakh that seem at odds with our own sensibilities.

  5. Shavua tov, shana tova, and thank you so much Prof Berman for this series of essays. A few reactions:

    Prof Berman: I would love to know how you see your work relating to that of the late great Nahum Sarna. Having read both Understanding Genesis and Exploring Exodus recently, I find his approach very much in line with yours (in these essays, in your 2011 JBL article and in Created Equal), in that he argues that when you carefully review the historical context, you get a rich appreciation for how the Torah was using the literary and cultural forms of the time (i.e., Dibra Torah Bilshon Bnai Adam) to announce a revolution in every sphere of life (religious, political, social). The one difference I see between your approach and that of Sarna is that he did not repudiate source-criticism (esp in Understanding Genesis, which was written in 1966). But like you, he clearly found “diachronic” analysis to be unproductive and focused on “synchronic” analysis instead. And I think if he were working today, he would very much be on board with your argument that the Torah’s adoption of contemporary literary forms helps explain at least some of the apparent contradictions, and raises deep questions about the premises underlying source-criticism.

    • I missed an opportunity to meet Nahum Sarna at the very end of his life, and I’m very sorry that I didn’t. From an intellectual standpoint he was a very courageous man, with opinions that ran counter to what nearly everyone else was saying. I am always wary of arguments of the sort, “if so-and-so were alive today, they would certainly say x”. You may well be right, but I think best to be cautious. What i will say without hesitation is that biblical studies, like all endeavors of the human mind is constructed and influenced by the sociology of knowledge. A lot of intellectual water has passed under the bridge since the 1960’s. More than new evidence coming to light, simply attitudes about so many things have changed. As someone whose work is informed by traditional sensitivities, I can tell you that the field is a lot friendlier to me today than it was to Sarna fifty years ago. I suspect that my article in Journal of Biblical Literaturem which was the basis for this series, would not have been accepted a generation ago. I’m a big fan of Cassuto. i think he had an extradordinarily good balance of critical scholarship leavened that was all the richer because it was leavened with traditional sensitivities.

  6. Prof. Berman – thank you for engaging and thoughtful essays. Sof-kol- sof what do you conclude on the dating and composition (authorship) of the Chumash? Do you follow the timeline of chazal with the Hittite vassal treaty and how does that resolve other issues throughout the Chumash that do not fall into that paradigm? Single authorship?
    Do other disciplines – philology, literary criticism….in biblical studies support your thesis?
    looking forward to your discussion on the differences between the laws in devarim and elsewhere.

  7. Prof. Berman – some follow up questions regarding the Hittite vassal treaties.
    Most (if not all) bible scholars agree the devarim is unique to all the other books and follow a vassal treaty form. but the consensus prefers the 7th century BCE treaties of Esarhaddon and not the 13th cent. bce of the Hittites. Can you explain the strengths and weaknesses of each theory and why you prefer the Hittites (or what is new in scholarship that convinces you that they are wrong).
    I still have a hard time believing that Israelites in the desert (after 200+ years as slaves) would have any knowledge of hittite (assyrian) vassal treaties (vs. israelites in the 7th century) as oppose to egyptian vassal treaties – are there any egyptian vassal treaties to compare dating to that period or any other? Is it possible that the brit in Exodus is a different vassal treaty than the one in Deuteronomy? Were the basic form and structure of the Hittite treaties used for state treaties for centuries til the end of the neo- Assyrian empire (per J.D. Wiseman)?

    Lastly, will you deal with the difference of descriptions of festivals between the various books – at least devarim vs the others ( a nod to Shimon Gesundheit latest book and the supplementary approach)? thank you in advance for my pestering questions.

  8. Ruvie – thank you for your learned and informed questions.If you look at the literature of those who study treaty forms you do not the consensus that you state. Moshe Weinfeld, who advanced this field more than anyone else was of the opinion that the Hittite parallels were more numerous and overall stronger than the neo-Assyrian ones, although some curses in Deut 28 more closely resemble those found in EST. You can see also a book about this whole topic by Noel Weeks, and most recently a massive work by Kenneth Kitchen.
    Concerning your second question – vassalage existed in many periods and was practiced by many empires. However, the composition of *treaties* is almost exclusviely found in the LB Hittite Empire, and the 7th c. Neo-Assyiran empire. There is no evidence of vassal treaties from Egypt. The most elementary forms from the Hittite treaties were indeed used in the 7th century as well by the neo-Assyrians. But that is just the point – Deuteronomy employs a large number of highly specific forms found only in the Hittite maerial.
    I list here only the similarities that are distinct, that is, elements that we find in Hittite materials, in Deuteronomy and in no other ancient Near Eastern textual witness. The historical prologue, with its emphasis on the beneficence of the sovereign as the basis for the loyalty of the subordinate, is a feature exclusive to the Hittite treaties, and not the Neo-Assyrian ones and is present in Deuteronomy. Only Hittite sovereigns delineate the borders of their vassal states, in lines strikingly similar to the terms used in Deut 1-2. Blessings are matched with curses (as we find in Deuteronomy) only in the Hittite treaties, but never in the Neo-Assyrian ones. Instructions for deposition of the treaty (cf. Deut 10:5) and its periodic reading (cf. Deut 31:10-13) are likewise features found only in the Hittite materials and not in the Neo-Assyrian treaty or loyalty oath texts. Moreover, promises made by the sovereign king to the vassal and expressions of affection toward him—elements so cardinal in Deuteronomy’s portrayal of God’s disposition to Israel—are found only in the Hittite treaties, never in the Neo-Assyrian ones. We may add to that, distinct similarities in law, such as the killing of a person by an unknown slayer (HL 6=Deut 21:1-9) and levirate marriage (HL 192-93 = Deut 25:5-10). And see my 2011 JBL article in which i compare CTH 133 and Deut 13. In my humble opinion this is the closest match that we have between any biblical law text and ANE legal passage anywhere.
    As the late great Hittitologist Itamar Singer wrote in his essay “The Hittites and the Bible Revisited,” there were extensive contacts between Hittite culture and Canaan in the 13th c. With the demise of that culture in the early 12th c., it is difficult to see how all those similarities could have reached Israel at a later date, though, of course, hypotheses abound.
    You raise many other important issues, and I hope to relate to some of them in future posts. Next up: the phenomenon of discrepancy in law

    • Thank you Prof. Berman. Weinfeld’s “opinion that the Hittite parallels were more numerous and overall stronger than the neo-Assyrian ones, although some curses in Deut 28 more closely resemble those found in EST.”

      since there are traces of both treaties (eventhough one may be more pronounced) doesn’t that make your dating problematic (13th vs 7th BCE)? also, which is more important to your conclusions/analysis – form criticism or literary and other analyses -e.g. linguistics – of the direct text (vs non biblical text of ane)? is there a tendency (to paraphase Toeg) to over use parallels from extra-biblical literature (of course it can also greatly advance various biblical issues) while neglecting or playing down fundamentals of literary and textual analysis (at least overlooking them)? In re reading essay III are you maintaining that all the brits between God and the Israelites are only Hittite vassal treaties to the exclusions of all others (esp. shemot, vayikra and devarim)? If so, the renewal treaty may be different in narrative as you suggest (and additional conditions etc) but shouldn’t everything else – the original treaty- be similar (language, linguistics, textual….)? I was under the impression that many scholars of ANE treaty patterns admit that there”is very little material for such comparison with Exodus 19-24 “[McCarthy, Old Testament Covenant]. should we exercise caution when drawing historical implications from form critical approach (see Baltzer on Exodus 34 as a failure to deal with literary and text critical issues as well as parallel text in Exodus 23 – hence his work to many was unconvincing- perhaps eye of the beholder).

      In sum does form criticism take the lead over all other analysis including textual/literary? could some of this -connection and literary patterns- be independent (and taking place in different periods and locations) and non-historically connected (as cause and effect). in other words, should the text speak for its self from itself before we apply any form criticism and not the reverse? apologize for the long winded way of getting to a point or questioning one [me being a layperson that sits in the backbench of a shul and a non academic- hopefully not to many knowledgable errors in my comments]. nevertheless, i see the value in applying the hittite vassal treaty as a secondary analysis.

  9. Thanks for the great response, Prof Berman. If you will permit me, I regard you as being rather courageous too. After all, from recent events, it seems that those even those with traditional sensitivities tend to be more inclined to see Biblical Studies as casting doubt on traditional belief rather than providing support for it. I agree re Cassuto. A true gadol. Am curious what you think of two other scholars who seem to be predecessors for the approach you are taking– Benno Jacob (whose book on Exodus I have been reading and find that it is filled with great chiddushim, let alone great criticism of source-criticism) as well as Hertz. My sense is that Hertz is ridiculed as an apologist. But if you go back and read his appendices to each of the chumashim, his criticism of the DH (in line with Cassuto and Jacob) seems to have weathered the test of time better than those who ignored and ridiculed him [or continue to ridicule him; see Kugel’s dismissal in How to Read the Bible], and his arguments for how historical and archaeological research shows the Torah to be revolutionary are very much in line with Sarna and your approach– or so it seems to me.

  10. Yes, Benno Jacob was a gadol. And he suffered terribly for being out of step with the cutlrual zeitgeist of the times. So much of his work went unpublished. The irony is that there is a project underway today to publish the rest of what has yet to appear. That speaks volumes to what I wrote about changing attitudes. BJ is more widely appreciated today than he was in his lifetime.
    Let me challenge you on one point you make: “it seems that those even those with traditional sensitivities tend to be more inclined to see Biblical Studies as casting doubt on traditional belief rather than providing support for it.” I’ve sat in forums with some of these scholars. It is not clear to me at all they would agree with your characterization of them as “those with traditional sensitivities.” I know of several that would say quite the opposite: we are fully observant halachically, but our intellectual pursuits in biblical studies are entirely divorced from tradtiional sensitivities; any attempt to meld the two is inappropriate.” It’s always fascinating for me to see what “traditional sensitivities” get shed and why, and which, if any, are retained and why. There are several articles’ worth of reflection, right there.

    • Interesting. I actually agree with every word in your last paragraph (I guess I was using “traditional sensitivities” to mean “Orthoprax”; you are using it to refer to traditional sensitivities pertaining to research on the Torah; I agree that the latter are lacking) though I was hoping you’d actually tell me I was wrong, and that you have fellow travelers among Orthodox Bible Scholars. That is really too bad. But I’m very glad to hear that you think the winds are changing. Additional thoughts:

      * Re Benno Jacob: that is wonderful news. The Exodus commentary translated by his son is a treasure, but not so user-friendly and I sensed from the short (and fascinating, inspirational) bio at the beginning that he had a lot of great stuff that is yet translated.

      * I see you didn’t engage on Hertz. Perhaps you haven’t read him in awhile (I hadn’t) or perhaps you disagree. He certainly was not an innovator, but that is not what he was trying to accomplish. And I think what he accomplished was hugely impressive and grossly underrated today. There is a very good book by Meierovich (“A Vindication of Judaism”) on Hertz and the writing of the Hertz Chumash. (To appreciate the book, one has to get beyond the fact that Meierovich seems to assume that Hertz’s attack on the DH must have been wrong). Anyway, more than anything I am struck by the sharp contrast between how the first graduate of JTS (Hertz) approaches the same issues raised by the first graduate of YCT (Farber) a hundred years later. Hmm… and you say there has been progress? (BTW, it is striking to consider that the set of Jews who have done the most to show how traditional beliefs and modern scholarship can be squared come from more liberal branches of Judaism. Offhand, I’m thinking of Hertz, Sarna, B. Jacob, and Alter.)

      * Since I have you, one last thought and I promise I won’t ask any more questions. To wit: I’m curious if you agree that the next gadol who needs to be incorporated into serious study of the Torah is Hirsch. I’m tired of people telling me that his etymological approach has been debunked. Anyone who has spent any serious time reading through his commentary knows his method sheds unique light on the mikra. Certainly his method needs to be refined and systematized; but to ignore Hirsch is to ignore a treasure. (And note that his insights are not just etymological. E.g., do people out there know that he has an incredible approach to *explaining* the parah adumah?) I hope you’ll tell me that appreciation for Hirsch is growing as well.

      Gut moed and thanks for engaging,

      (my name on other blogs like Kavannah. I can’t seem to get my wordpress account to work on torahmusings)

  11. Thanks for the comment – and please; questions are quite welcome; I wrote all this because to engage interested readers about these issues. i’m sorry to say, I haven’t read the Hertz chumash since I was a child; that’s what our shul had. Time to go back and take a look.
    R. Hirsch has wonderful insights, but Benno Jacob and Cassuto were much more aware of scholarship and critical concerns. Maybe I need to go back and read more Hirsch, too…

    • Got it. I think you would find a review of Hertz and the Meierovich book to be very interesting reading. Agreed that Hirsch ignored critical scholarship. But so did various pashtanim over the centuries. His distinctive approach is very interesting, in my opinion.

  12. you mentioned the Rambam and Ralbag as forerunners to this approach. Have their claims and insights (e.g. their discussions of the practices of avodah zara) generally held up under current scholarship?

    • As I mentioned in Essay II, Ralbag was “spot on” as the British say. That is, he is absolutely correct in his guess that in ancient Near Eastern writing, there is a great penchant for repetition. This is because a lot of those works were committed to memory and the repetition helps as a mnemonic device.
      The Rambam claims that he got his information about ancient cultic practices from a book about the “Sabeans.” This is not my area of expertise, but my sense is that this was a work that circulated in his time, that might have contained much lore, or might have been reflected idolatrous practices in his own day. It also might have reflected cultic rituals that are practiced in many cultures, and could very well have been practiced in some of the neighboring cultures of Israel in the ancient Near East. So, in answer to your question I would say as follows: On Rambam’s basic and fundamental point that the Torah adopts but also adapts ancient cultic practices to attune them to a new theological agenda – the answer is yes. That is a widely held scholarly opinion. As for the specific explanations Rambam gives based on the history sources he had, here there is probably less corroboration. My sense is that the Rambam sought the best historical sources he could in order to base his analysis, and would be only too happy to have in hand all that we do today.

    • The Rambam applied his historical approach to many different issues, on which the accuracy of his sources may vary. I think you have to approach each issue separately. In this post, I quote from secondary sources about Rambam’s explanation of the prohibition to make an altar with cut stone: It seems to be a machlokes among historians whether the Rambam’s history was right.

  13. Rabbi Berman, I enjoyed this series as much as I did your previous article that you gave me and we discussed. I find the argument for Devarim being structured according to vassal treaties convincing and even compelling.
    However, I’m a bit bothered by how you positioned this argument in the context of biblical criticism in general. The type of contradictions and inconsistencies that form the foundations of biblical (‘higher’) criticism are not limited to Devarim vs. the other 4 chumashim; in fact, they are just as prevalent within the individual chumashim and even within individual passages (the oft-quoted classic example is the mabul story, e.g. 7 vs. 2 of clean species; and many more examples). The inconsistencies between Devarim and other chumashim are merely a subset of a more general phenomenon. Inconsistencies and contradictions within the same passage are even stronger ostensible evidence for critical claims than differences between chumashim, since they are relatively more difficult to explain with conventional literary models, and thus lend even stronger credence to the idea of a redactive process. It is of course legitimate to posit different solutions for different parts of a problem, but it is difficult to conceive of a solution for the general issue that would not also provide a solution for Devarim.
    In addition, the vassal treaty literary model is not, alone, a complete solution to the problem. As you correctly indicated in your response to RabbiDMK, along with the literary model you need to posit a historiosophical position that allows for non-factual narrative, i.e. narrative content is molded to the message to the extent of creating factual contradiction. I agree with this position (most commonly raised in the context of the tensions with the natural sciences, but equally necessary in light of biblical criticism), although as you indicated, it requires wider discussion (e.g. what then is the truth-value of Torah? And what are the limits to this approach?). The question is, is this claim sufficient, in principle, to resolve the general case of the types of inconsistencies raised by bible critics (leaving of course the remaining question, but not difficulty, of explaining locally what the biblical messages are that indicate the various narrative components), or is it necessary in addition to adduce a known literary model for each case? Your essay seems to indicate the latter, in which case I question whether it will be possible to find actual literary models for all types of biblical inconsistencies. Personally, I identify with the former approach (as you know from our previous conversations 🙂 ) – in which case the vassal treaty model as a model for Devarim is irrelevant to the question of our response to biblical criticism (although valuable on its own grounds, as providing deeper understanding of Devarim itself; and perhaps of value in substantiating the more general claim about ancient attitudes towards factual historicity).
    Also, I’m confused about the exact scope of what it is that is based on the vassal treaty model – is it just Moshe’s main speech (Devraim 5-26), or Sefer Devarim as a whole? Some of your examples are from Devarim chapter 1; but is the book as a whole really a coherent literary unit?

    • Thanks, Yehuda, for your astute questions. You are correct – I seek multiple literary precursors through which to understand the various discrepancies we find in the Torah. I do not believe that we are looking at a single phenomenon, as I think you are suggesting, but rather multiple literary conventions that are employed here, that we lump together because our own literary convnetions declare that these are all in the category of “inconsistency” or “contrdiction.” The problems raised by Devarim vs. the other books and the problems raised by the seeming incoherence of the Flood narrative are manifestly two different phenomena. As I have addresseed here, in the first we have two seperate accounts of a given event. Each stands on its own, and they seem to be mutually exclusive. In the Flood narrative, you have, at best, one complete version, and scattered pieces of another version, then all spliced together. These, then, are not the same phenomenon. For the the Flood narrative we must realize that its 77 verses form the largest and to my mind most elegant chiastic structure in the entire Tanakh (see here: It is also worth noting that the flood narrative features the number 7, is 77 verses long, and has as its center verse, v. 8:1 “And God remembered Noah…” Put differently, if all one does is to read the narrative sequentially, it will display incoherence. If one respects the ancient liteary conventions that are clearly at work here, a differnt mode of reading becomes available. I am currently at work on a book whose tentative title is “The Functions of Inconsistency in Ancient Literature: New Paradigms for Pentateuch Study.”
      You may be correct that we will not be able to find precursors for form of inconsistency we encounter in the Torah. But once we have recovered several models that provide satisfying results, as I’ve tried to do here, the issues before us take on a new nature. Instead of dealing with an “incoherent” text, we find ourselves, instead, dealing with a text whose pshat meaning is partially hidden from us. the models that we do indentify should give us confidence that our own, modern conventions and understandins are themselves limited in scope.

      • Interesting reply to Yehudah. And I really look forward to your book, R. Berman. I also love your willingness to send us a link to “a weblog for thinking Christian moms”! BTW, my vote for “the largest and to my mind most elegant chiastic structure in the entire Tanakh” is the chiasmus for Shmot 17 through the end of Vayikra presented by Menachem Leibtag here:

      • The question I have about chiastic structures is, whether they can really explain the kind of phenomena that we’re talking about. I.e. is the literary function of chiastic structures such that they require and justify narrative discrepancies and blatant contradictions? From the title of your upcoming book, it seems like your answer is yes… I guess I’ll have to wait patiently for it. 🙂

  14. Yehuda:

    Great questions for R. Berman. I look forward to his answers.

    Two questions for you though:

    First, I’m curious why you seem to think there is a greater burden of proof on R. Berman than on source critics. You say that unexplained inconsistencies “lend credence to the redactive model.” But why is that? All because source critics have raised good questions (to the extent that they have), this doesn’t mean their answers are any good. Explaining internal inconsistencies in a text requires a coherent model for the composition of that text as well as independent evidence that supports the model and rules out alternative models. Not only is the source-critical model incoherent (as attested by the cacophony of approaches to various texts) but there is no independent evidence for it. When is the last time you saw a text written by one of the sources? You haven’t. And has there ever been a text that was composed in the way that the DH assumes? No.

    Second, while I understand the tendency to be impatient and demand to know today what are the full set of ancient literary models the Torah may have used, maybe we really do need to be patient and wait for them to be discovered. It was not long ago that the Torah’s use of multiple names for God was taken as clear evidence for the presence of multiple sources. Today, due to our familiarity with ancient near eastern literary conventions, this no longer is regarded as evidence of much of anything. And now R. Berman has shown us Hittite vassal treaties suggest how the same author might have written apparently contradictory accounts of the same historical events. Will more research find more literary models for the Torah’s confusing style? Maybe yes, maybe no; and if so, who knows when this will happen– perhaps not in our lifetimes. But what alternative is there to being patient? As I wrote above, source critics really have exactly the same problem– they also need to find independent evidence for their model(s) as well.

    • GoogleUser:
      I wasn’t, ch”v, espousing the conclusions of biblical criticism. In addition to issues of faith, their conclusions are replete with difficulties, as R. Berman in his first essay and now you have pointed out. However, the phenomena of consistent inconsistencies cannot be ignored. I was merely questioning whether R. Berman had provided a sufficient alternative explanation for those phenomena, or even a significant part of them, as he has claimed.
      As to what the alternative is – as I alluded, personally, I think that the layers identified by the critics, or something like them, are themselves intentional literary structures that have the purpose of expressing complex ideas, to the extent that each literary layer presents differing facts to express its idea. This is a variation on mo”r Rav Breuer’s Aspect (Bechinot) methodology, loosely based on the kind of methodology used by the Rav at the beginning of Lonely Man of Faith. I’ve written more about this in Megadim (Herzog college’s Tanach publication), issue 53.

      • Got it, thanks. I guess I was overly sensitive to your phraseology of “lend even stronger credence” when it did not seem warranted. And I will look for your piece in Megadim, thanks.

        I would reiterate my second point though. Any attempt to model the composition of a text, whether DH (upon which R. Breuer relies) or another needs evidence for the hypothesized process (ideally, direct; but at least indirect, as R. Berman has supplied). Until we have such evidence, we will just have to be patient.

  15. Using this method how do you explain the similarity between the curses in Devarim to the Vassal Treaties of Esarhaddon which only appears hundreds of years later?

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