Rethinking Orthodoxy and Biblical Criticism V

Kippah and Gown: Rethinking Orthodoxy and Biblical Criticism

Essay V: Discrepancies Between Law in Sefer Devarim and the Other Books of the Torah: Laying Out the Questions

 

1. Introduction to the Series[1. This series is an adaptation of my forthcoming academic study, “The History of Legal Theory and the Study of Biblical Law,” Catholic Biblical Quarterly 76:1 (2014): 19-39.]

In my previous series I discussed the apparent discrepancies between the historical accounts that appear in Sefer Devarim and the parallel accounts that appear in the other books of the Torah. In this series I turn to the vexing question of the seeming discrepancies between law in Sefer Devarim and law as it appears in the earlier books of the Torah.

In this series * Essay 1 * Essay 2 * Essay 3 * Essay 4 * Essay 5

I discuss the issue here with the same methodological assumptions that governed my analysis in the previous series: to understand how the Torah coheres as a cohesive whole we must identify and shed the anachronistic assumptions that we bring to our reading of the Torah. Moreover, we must recapture the modes of thinking and writing that were prevalent in the ancient world. Only by reading the Torah in its ancient Near Eastern context, as its first audience understood it, can we hope to grasp its message. As in the previous series, the questions here cannot be satisfactorily explained in a few short paragraphs. I therefore offer up front a sense of where I am going in these four essays:

In this first essay I will survey the approaches within rabbinic sources to the questions of legal discrepancies between Sefer Devarim and the other books and why many people do not find them satisfying. I will then present the critical approach to the issue, and note the problems inherent in that approach from within its own frames of reference—from an academic perspective.

In the second essay I will claim that we today use the word “law” and think of legal texts in ways that are actually very modern. These highly intuitive ways of thinking about law and legal texts are anachronistic when applied to “law” and “legal texts” in the ancient Near East and in the Torah. This essay will examine legal writings from the ancient Near East and recapture what the word “law” meant back then, and how people wrote and understood “legal texts.”

In the third essay we move to law in the Tanakh generally and see that the lessons learned from ancient legal writings help us understand why law seems to change so often and so easily in the Tanakh. Moreover, we will see that the way in which the legal texts were read and interpreted in the time of the Tanakh is quite different from the way in which we read and interpret halakhic texts today. The essay concludes by demonstrating that the conclusions reached here are in concert with provocative comments by the Netziv (R. Naftali Tzvi Yehudah Berlin; ) about the fluid and changing nature of halakhah.

Finally, in the fourth essay I build on the previous essays and explain why law in Sefer Devarim diverges from law found in the earlier books of the Torah. I demonstrate that the conclusions I reach were already anticipated in the writing of R. Zadok Ha-Cohen Rabinowitz of Lublin (1823-1900).

 

2. A Signature Example of the Problem: The Law of the First Born Animal—The Approaches of Chazal

To illustrate the problem at hand, I will examine the mandate to dedicate and sanctify the first born animal. This mitzvah appears in two places in the Torah and is one of the clearest examples of how irreconcilable two formulations of a mitzvah can be, when read on the level of peshat.

In Bamidbar 18:14-18 God addresses Aharon and issues the following promise to him and his descendants, the kohanim:

יד כל-חרם בישראל, לך יהיה. טו כל-פטר רחם לכל-בשר אשר-יקריבו לה’, באדם ובבהמה–יהיה-לך: אך פדה תפדה, את בכור האדם, ואת בכור-הבהמה הטמאה, תפדה. טז ופדויו, מבן-חדש תפדה, בערכך, כסף חמשת שקלים בשקל הקדש: עשרים גרה, הוא. יז אך בכור-שור או-בכור כשב או-בכור עז, לא תפדה–קדש הם: את-דמם תזרק על-המזבח, ואת-חלבם תקטיר–אשה לריח ניחח, לה’. יח ובשרם, יהיה-לך: כחזה התנופה וכשוק הימין, לך יהיה.

¹⁴ Every devoted thing in Israel shall be yours. ¹⁵ The first issue of the womb of all creatures, human and animal, which is offered to the Lord, shall be yours; but the firstborn of human beings you shall redeem, and the firstborn of unclean animals you shall redeem. ¹⁶ Their redemption price, reckoned from one month of age, you shall fix at five shekels of silver, according to the shekel of the sanctuary (that is, twenty gerahs). ¹⁷ But the firstborn of a cow, or the firstborn of a sheep, or the firstborn of a goat, you shall not redeem; they are holy. You shall dash their blood on the altar, and shall turn their fat into smoke as an offering by fire for a pleasing odor to the Lord; ¹⁸ but their flesh shall be yours, just as the breast that is elevated and as the right thigh are yours.

Note that here, the flesh of the first-born kosher animal is expressly given over to the kohen, and is considered as much his as the other priestly entitlements (matnot kehunah) enumerated in the opening chapters of Sefer Vayikra (v. 18). The kohen is called upon to dash the blood on the altar (v. 17). Because these animals have kedushah, it would be expressly forbidden for a yisrael to partake of them. Compare this, however, with what the Torah says on the subject in Devarim 15:19-23:

19 Every firstling male born of your herd and flock you shall consecrate to the Lord your God; you shall not do work with your firstling ox nor shear the firstling of your flock. ²⁰ You shall eat it, you together with your household, in the presence of the Lord your God year by year at the place that the Lord will choose. ²¹ But if it has any defect—any serious defect, such as lameness or blindness—you shall not sacrifice it to the Lord your God; ²² within your towns you may eat it, the unclean and the clean alike, as you would a gazelle or deer. ²³ Its blood, however, you must not eat; you shall pour it out on the ground like water.

Here it is clear that the first-born animal is to be consumed by its owner, a yisrael (v. 20). Chazal were aware of the discrepancy between the two sources and resolved it through a strategy of harmonization. Rashi to Devarim 15:20 invokes the solution of the Sifre. Indeed, the owner of the animal must bring it to the Temple, as is suggested by Devarim 15:19. However, when v. 20 states, “You shall eat it,” that must refer to the kohen, because Bamidbar 18 clearly states that the kohanim alone may consume these animals. This reading, however, is difficult to maintain as a peshat reading of Devarim 15. The same addressee (“you”) who consecrates the animal (v. 19)—presumably the yisrael owner—and who must take it home to consume it if it is blemished (v. 22) and must properly dispose of its blood (v. 23) is the same addressee commanded, “you shall eat it” in v. 20. In fact, v. 20 suggests the addressee here is someone who comes from afar to the Temple only periodically, and not someone who is there on a more regular basis. The implication is that this verse, too, is referring to a yisrael and not to a kohen.

Abarbanel offered one of the most comprehensive rabbinic meditations to the issue of discrepancies between the laws of Sefer Devarim and the laws found in the previous books of the Torah. The present case, however, highlights the weakness of his approach. Indeed, he notes, laws in Devarim are presented differently than they are earlier in the Torah. This, he explains, is because Moshe expanded and added to the laws already given, in anticipation of the needs of a new generation settling in the land. In some places he refers to these addenda as toladot, a term drawing from the laws of Shabbat, which suggests “a corollary” or “ancillary” to the core law given earlier. Thus, when the Torah repeats the law of manumission (eved ivri), already given in Shemot 21:1-6, again in Devarim 15:12-18, it adds the mandate for the owner to release the servant with severance gifts to help him get on his financial feet (Devarim 15:13-14). This addition does not contravene the law in Shemot 21, but adds to it. Moshe adds to it, says Abarbanel, because some members of bnei Yisrael are about to become wealthy land-owners, and it behooves them to behave in a charitable way.

Abarbanel’s approach has value, and I shall review it more closely in my fourth essay. But it is also limited as a solution to the problem of discrepancies between law in Devarim and elsewhere. The notion that some of the mitzvot in Devarim may represent extensions, corrolaries—toladot—of some earlier mitzvot is well and good. It does not, however, help us reconcile the law of the first born in Bamidbar 18 and in Devarim 15. Here, there is no way to see the law in Devarim as an extension or a toladah of the law in Bamidbar 18. The law in Devarim 15 directly contravenes the law given in Bamidbar 18. Abarbanel was aware of this discrepancy, but does no more than to cite the harmonistic solution of the Sifre mentioned above.

 

3. The Hypothesis of Competing Legal Traditions—A Critical Evaluation

Critical study of the Bible proposes a simple solution for the discrepancy: the laws of Devarim and the laws of Bamidbar are from two separate law codes. They were not originally written to co-exist in one text. The two codes are mutually exclusive. This source-critical approach maintains, in fact, that the Torah contains four distinct law codes: the Covenant Code, comprised essentially of Shemot 21-23; the Priestly Code, which includes the Torah’s cultic laws; the Holiness Code, which is comprised of the laws governing life in the land, contained in Vayikra 17-26, and, finally, the Deuteronomic Code, containing the laws found in Sefer Devarim. These codes, it is said, were successively composed with the intent of replacing the law found in an earlier code. Thus for example, Sefer Devarim offers its own version of the law of manumission (eved ivri) in chapter 15, because its author rejected the formulation of the law found in Shemot 21:1-6.

The hypothesis of four codes of law is born out of the premise that no single agent would compose a work so fraught with contradiction in its laws. Advocates of the hypothesis must explain, however, how, then, these disparate law corpora came together. The proposed solution essentially kicks the ball downfield. The bringing together of these materials is not the act of an author but of an editor, or what scholars call a redactor. Scholars, however, must then explain why an editor would bring together material in a way that an author would not. The standard explanation is that the redactor did so out of duress. With the pressures of the destruction and exile, there was a need for Israel’s disparate sub-communities and traditions to unite together around a compromise document, and that document is the Torah.

This hypothesis of mutually exclusive codes brought together under duress in a compromise is subject to critique from a strictly academic perspective on six accounts.

First, and foremost, it is difficult to see how the Torah in its present form could satisfactorily be termed a “compromise document.” There may well have been sub-communities within Israel at the time of the destruction. And joining forces and reaching compromise may well be a wise strategy for survival. But the discrepancies within the Torah render it the antithesis of a compromise document. A document reflecting compromise between competing agendas is one where each side gives ground on its original positions, and a middle ground is found. Alternatively, one side will get its way on a given issue and the other side its way on another. Where draftsmen truly find no common ground, they may employ creative ambiguity, or skirt the issue altogether. The sine qua non of a compromise document, however, is that it will iron out conflict and contradiction so that the community can proceed following one, authoritative voice. What compromise is there in the competing laws of the first-born animal? If anything, the Torah would seem to guarantee a state of anarchy, with kohanim insisting that the law should follow the formulation of Bamidbar 18, and land-owning yisraelim pointing to the formulation in Devarim 15 as the right way to go.

Second, the theory that the Torah is a compromise document has no external control to validate it. There were actually a number of law-codes composed in the ancient Near East, the Code of Hammurabi being the most famous of them. Nonetheless, nowhere else in this vast region do we see that a culture faced with catastrophe suddenly merged its competing strands of thought and law into such a so-called “compromise document.” This is so, even though in the annals of ancient Near Eastern history, Israel hardly stood alone in experiencing dislocation and disaster. Nor is there any attestation to this process of assembling the Torah in this fashion either from extra-biblical sources, or from anywhere in the Tanakh itself. Moreover there is no extra-biblical evidence or passage within the Tanakh itself that points to the composition of even one of these codes as an independent literary entity.

Third, the notion that the various law codes compete with one another and were not intended to be combined is challenged by evidence within the Torah itself. Sefer Devarim makes no claim to its own sufficiency as a source of law and calls upon Israel to fulfill precepts “as I have commanded you” elsewhere (12:21; 18:2; 24:8; cf. also 5:12; 5:16), seemingly to passages contained in one of the other so-called codes.

The fourth complication for this hypothesis stems from the peculiar authority that Sefer Devarim ascribes for its laws. In the earlier books of the Torah, the laws are commanded to Moshe by God Himself. In Sefer Devarim, however, the laws seem to be given—not merely transmitted—by Moshe himself. The Abarbanel noted that nowhere in Devarim does the Torah say that the laws contained in that book were dictated by God to Moshe. In fact, at several junctures Moshe explicitly states that these are the laws that he is giving to Israel (e.g. Devarim 4: 44-45; 5:1). This is what led Abarbanel to his theory that the laws in Devarim represent toladot or corollaries to the earlier laws. Moshe, for Abarbanel, couldn’t make new laws, but he could add stipulations that would buttress the earlier laws, and support their spirit. We noted that this theory breaks down when we come to discrepancies like the ones exhibited in the various iterations of the law of the first-born animal. That Sefer Devarim maintains that its laws emanate from Moshe is problematic for the hypothesis of competing sources of law. Many scholars maintain that law in Devarim comes to replace the law in the Covenant Code of Shemot 21-23. Yet those laws are said in God’s name. Why would the later author of Sefer Devarim compose laws designed to replace laws spoken by God in Shemot, and replace them with laws whose authority is only that of Moshe?

Fifth, were these so-called schools truly inimical to each other we would expect the warfare over the law to spread to many other books of the Bible. Indeed, scholarship routinely maintains that Deueteronomic, or Priestly or Holiness editors were largely responsible for the redaction of many of the books of the Tanakh. The other books of Scripture touch upon literally dozens of areas of law. Yet, nowhere in the Hebrew Bible do we find a prophet, priest, king, or narrator who argues in explicit fashion for the legitimacy of one version of a law over another. Nowhere in the Tanakh do we find a book or a prophet who can be classified as purely following Sefer Devarim, or the Holiness Code. In fact, quite the opposite is true. Nearly all the books of the Tanakh resonate with passages from all so-called sources of law. Often, biblical writers will weave together purportedly “competing” law sources. Nehemiah does this with the very laws we have taken as our case study—the laws of the first-born animal in his discussion of practice in his day (Neh. 10:35-37).[2. See Da’at Mikra to these verses for references to the various Torah laws woven together here.] In fact, scholars have long recognized that such legal blends are legion in post-exilic biblical literature such as Ezra-Nehemiah, and Divrei Ha-Yamim. I would note that the phenomenon is hardly limited to post-exilic books. Yirmiyahu censures the elite for failing to release their debt-servants. His rebuke weaves references to the laws of debt-servitude from, Vaykira and Devarim (cf. Yirmiyahu 34:12-16). At least a half-dozen more examples can be adduced from books that are not clearly post-exilic. Put succinctly, while the source critical approach sees the different law collections as mutually exclusive, all sections of the Tanakh, from the Torah and on into the other books, seems to put them together. In the Torah we find these laws all united under one cover as the Torah, and in the other books we see references to these law codes woven and cited with no sense that affinity to one comes at the expense of the standing of the other.

Sixth, I take a page from the history of the critical study of the Torah. When we look at the early major figures of this movement, we see a curious trend. Until the mid-nineteenth century, scholars attended solely to contradictions within the narrative portion of the Torah. I’m speaking of figures like Spinoza, Astruc, Eichhorn, De Wette, and Ewald, for those familiar with the names. These figures read the narratives of the Torah with a keen eye, and looked for every slight indication of difference as evidence of independent sources. These are the figures that hypothesized a J source and an E source for the stories of the Torah. Yet, strangely, one finds no mention in their work of the contradictions within biblical law. That enterprise begins in earnest only in the second half of the nineteenth century. Why were earlier scholars oblivious to problems in the text that would be so obviously problematic to later scholars?

All of this suggests that we should look for an alternative explanation. I conclude this essay, therefore, with a “prospectus” of what a satisfactory hypothesis would need to include to explain the discrepancies between law in Sefer Devarim and in the earlier books. This theory should explain what seems a Gordian knot: on the one hand, many laws in the Torah seem to be mutually exclusive—such as the laws of the first-born animal. And yet at the same time, the literature in which these laws are found—the Torah and the Tanakh generally—seems to relate to them as compatible. It should explain why Sefer Devarim ascribes the laws to Moshe when all the other books ascribe them to God Himself. It should explain why Sefer Devarim seems to approve of prior law codes, beckoning Israel to follow certain laws “as I have commanded you,” and yet at the same time often gives a divergent formulation of the law. Finally our solution should explain why scholars before the mid-nineteenth century rarely if ever saw contradiction within the laws of the Bible, whereas contradiction here has been obvious to scholars working in the last century and a half.

That solution, I maintain, is available. Its root lies in identifying our anachronistic understanding of the word “law” and how legal texts are to be read. It lies in recovering how people thought about “law” and legal texts in pre-modern times. To this I turn in my next essay.

The next installment of the series will be appear Monday morning, December 9^th.
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