Rethinking Orthodoxy and Biblical Criticism VI

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Kippah and Gown: Rethinking Orthodoxy and Biblical Criticism

Essay VI: The Discrepancies Between Law in Sefer Devarim and in the Earlier Books of the Torah—The Concept of Law in the Ancient World[1. Portions of this essay have appeared previously in my essay What Is This Thing Called Law? The Jewish legal tradition and its discontents]

The difficulties that many sense in the law collections of the Torah stems from anachronistic notions of how law functions and of what a legal text is. In this essay I lay out the difference between modern and ancient notions of law. This will enable us to comprehend anew a host of questions concerning law in the Tanakh, and gain a greater appreciation of the relationship between Torah she-Bikhtav and Torah she-Be’al peh, usually translated as “The Written Law” and “The Oral Law.” I begin by laying out the assumptions we bear when we speak about law today.

In this series
* Essay 1
* Essay 2
* Essay 3
* Essay 4
* Essay 5
* Essay 6
* Essay 7

1. Common Law vs. Statutory Law

What do we mean when we use the word “law”?

Consider the following common usages of the word law: “uphold the law,” “comply with the law,” “the letter of the law,” “pass a law,” “against the law.” These statements share a basic assumption: the “law” in question is a written formulation and is found in a law-code. However, the intuitive notion that by “law” we mean written law found in a law-code is itself a relative newcomer in the history of legal thought. Once upon a time, the norms of society were not written. There were no codes. This is the story of the history of the word “law” and how it came to take on the modern meaning of law written in a law code. More profoundly, this is the story of how our modern use of the term “law” has put us out of touch with the way law worked in the time of the Tanakh.

When most people today think of the word “law,” they have in mind what legal theorists call statutory law. Law, within this conception, is contained in a codified text. Only what is written in the code is the law. The law code supersedes all other sources of norms that preceded the formulation of the code. No other sources of authority have validity other than the code itself. Therefore, the courts must pay great attention to the wording of the text and cite the text in their decisions. Where the code lacks explicit legislation judges must adjudicate with the code as their primary guide. For many of us today this statutory approach to law is intuitive and even unremarkable. Yet as recently as the early nineteenth century the vast majority of Germans, Englishmen and Americans thought about law in very different terms. The prevailing view for them was a common-law approach to jurisprudence.

In the ancient Near East there was no “law” in the sense of a statutory code

For common-law theorists, the law is not found in a written code which serves as the judges’ point of reference and which delimits what they may decide. A judge arrives at a judgment based on the mores and spirit of the community and its customs. Norms develop gradually through the distillation and continual restatement of legal doctrine through the decisions of courts. When a judge decides a particular case he or she is empowered to reconstruct the general thrust of these norms in consultation with previous judicial formulations. Critically, the judicial decision itself does not create binding precedent. No particular formulation of these norms is final. There is no authoritative text called “the law” or “the law code.” As a system of legal thought, the common law is consciously and inherently incomplete, fluid and vague.

When decisions and precedents were collected and written down these texts did not become the source of law, but rather a resource for later jurists to consult. Every decision became “a datum from which to reason,” in the words of the early nineteenth century common-law theorist John Joseph Park.[2. John Joseph Park, A Contre-Projet to the Humpheresian Code (London, 1827) 21, 25 cited in Michael Lobban, The Common Law and English Jurisprudence 1760-1850 (Oxford, 1991), 220-21.] Within this conception judges address new needs and circumstances by reworking old norms, decisions, and ideas. Although the common law attached great importance to the venerated customs of the past, the key was not the unchanging identity of its components but a steady continuity with the past.

By the end of the nineteenth century legal codes were being drafted across the western world, from Germany to America. The statutory approach had won the day. But why? What was it that led sensibilities about jurisprudence to shift so dramatically in the second half of the nineteenth century from a common-law approach to a statutory approach? Why do we today think of law as statutory law?

Common-law thinking flourishes in homogeneous communities where common values and cultural touchstones are nourished and maintained by all. Where cohesion breaks down, however, it is difficult to anchor law in a collective set of mores and values. Nineteenth century Europe witnessed large-scale urbanization and the rise of the modern nation state. Great numbers of disparate individuals were coalescing in social and political entities of ever-larger scope. A clearly formulated set of rules could unite a heterogeneous populace around a single code of behavior. The earliest known instance of codification reflects the same political logic. The first written Greek laws date to the middle of the seventh century b.c.e., and proliferate at just the period when Greek city-states were in a process of state-formation and developing more formal political systems.

Today, we are citizens of large, polyglot political entities, far removed from the spirit that animated common-law jurisprudence in the pre-modern period. But to appreciate the vitality of the common-law system within a local, homogeneous environment, we need think no further than our own homes and the dynamics of the nuclear family. At home we certainly do set the bar high in terms of expected behavior, but we do not typically run the house on the basis of “laws.” Children may be reminded not to jump or eat on the couch But there are no “laws of the couch” posted on the side of the refrigerator. At home proper behavior and attitudes are modeled by parents and neighbors. Cues suggesting how a child should behave, think, and feel are all interwoven in and inculcated through the gestalt of the environment created by the home. Here parental discipline is exercised in a fluid and changing manner. Parents may address a child’s misdeed one way on one day and in an entirely different way with another child at a different time. The broad set of goals and ideals remains the same. But their implementation and expression are in a constant state of flux.

Not a single court docket from anywhere in the ancient Near East ever refers to any ancient law collection as a source of law

This is a good model for understanding the dynamics of law in much of the pre-modern world. Villages were small and homogeneous. Families typically had lived in the same village for generations and could assume that continuity for the future. Village members shared a common language, religion, heritage, common enemies and common economic opportunity. There was no need for societal norms to be legislated by a formal body, let alone written. What was expected of a person in attitude and behavior was part of the warp and woof of day to day life, much as is the case with family life for us today. When a member of the village violated those norms the elders convened and decided the appropriate remedy. There were no “jurists” as a professional guild. Village elders possessed the wisdom of the ages and determined on an ad hoc basis the best redress for the situation at hand. When the continuity and homogeneity of small community are torn asunder, however, the statutory approach to jurisprudence serves to bridge the chasm that separates the behavioral and attitudinal differences of constituent citizens.

2. Lessons About “Law” From Hammurabi

The dichotomy between a statutory system of law and a common-law system is essential for understanding the idea of law in the ancient world.

In the ancient Near East there was no “law” in the sense of a statutory code. Moreover, as I will proceed to demonstrate, there was no such “law” in the Torah either. Indeed, there was no such law anywhere in the ancient world. I’d like to demonstrate this by laying out a series of observations that scholars have made about what some call “history’s first law code” – the Code of Hammurabi? The “Code” of Hammurabi is an excellent place to begin our discussion of statutory law in the ancient world because the “Code” of Hammurabi, it turns out, is no code at all. Following how scholars reached this conclusion offers important context for understanding the nature of law in the Torah. A series of startling observations about this famous document speaks volumes about the so-called “law codes” of the Torah.

French archeologists discovered the Code while digging in 1901 at Susa—ancient Shushan. They unearthed an imposing seven-foot tall stele of black diorite inscribed with cuneiform writing on all sides that today stands as the marquee holding of the Louvre in Paris. Scholars quickly translated the Akkadian, written c. 1750 BCE, and saw that it contained provisions—282, to be exact—that read like this:

[55] If any one opens his ditches to water his crop, but is careless, and the waters flood the field of his neighbor, then he shall pay his neighbor corn for his loss.

Or like this:

[229] If a builder builds a house for someone, and does not construct it properly, and the house which he built falls in and kills its owner, then that builder shall be put to death.

As scholars sought to uncover the meaning of this text, however, the intellectual shovels at their disposal were not equal to the task. Recalling their lesson from the study of proverbial ducks, as it were, scholars concluded that if it looks like a law-code, and reads like a law-code, then—it must be a law-code! This was, after all, the early twentieth century, and every civilized country in Europe was now incorporating jurisprudence that championed statutory law.

Nowhere in the cultures of the ancient Near East is there a word for written law

Scholars are always quick to identify evidence in support of their hypotheses, and sure enough evidence was quickly found supporting the understanding of this text as a statutory code. In time, more than fifty fragments of the “Code” of Hammurabi were found all across the Mesopotamian region. Moreover, these copies or fragments had been copied over a period that spanned more than 1500 years. Most remarkably, these fragments revealed virtually no editing of content over that time. For half a century scholars considered it an assured result: The Code of Hammurabi (or CH, as scholars refer to it in shorthand) had canonical status throughout Mesopotamia and was unrivaled as the source of law.

Around mid-century, however, scholars started to identify cracks—not in the stele, but in the theory that CH was a statutory code. Scholars were puzzled: Wild fluctuations of inflation and deflation were well-known throughout the ancient Near East. Nonetheless, the fines that the Code of Hammurabi mandates for various offenses remain unchanged across the 1500-year epigraphic record. Had CH served as a statutory code those fines would surely have been adjusted over time. Scholars were further puzzled: Significant areas of day-to-day life receive no attention at all in CH. There are no stipulations relating to inheritance, for example. This is inexplicable if, indeed, CH was the binding law code of a culture. Puzzling even further was the evidence from the archaeological record. Archaeologists have discovered copies of the Code of Hammurabi in royal archives and in temples, but never at the sites of local courts, and never together with the literally thousands of court dockets that have come to light from Mesopotamia. Were CH statutory law, we would certainly expect to find it well-represented in court settings. But most puzzling to scholars was this: not one of these thousands of court dockets ever refers to or cites CH as a source of law. In fact, not a single court docket from anywhere in the ancient Near East ever refers to any ancient law collection as a source of law. The practice of citation is strikingly absent from the record. Think of that in modern terms. Today a judge must cite sources when he or she delivers a decision. Finally, and most crucially, many court dockets from ancient Mesopotamia record proceedings of cases whose remedy CH directly addresses. Nonetheless, in many of these, the judge rules counter to the prescription offered in the CH. If this text was the “law code” of Mesopotamia, how could a judge rule contrary to it? These complications raised two enduring and inter-related questions: if seeming “law collections” such as CH did not contain the law, where could the law be found—where was it written? And secondly, if texts like CH were not statutory codes, then what were they?

Where was the law written in Mesopotamia? The answer is: it wasn’t. A judge would render a decision at the moment of adjudication by drawing on an extensive reservoir of custom and accepted norms. It would continually vary from locale to locale. One could not point to an accepted text of the law—neither CH, nor any other text, for that matter—as the final word on what the law was or prescriptively should be. Philology here speaks volumes: in ancient Greece the word for written law was thesmos, and later, nomos. But that was Greece. Nowhere in the cultures of the ancient Near East is there a word for written law. The very concept does not exist.

If CH, though, wasn’t a collection of “laws” what was it? These collections, instead, are anthologies of judgments—snapshots of decisions rendered by judges, or perhaps even by the king himself. The domain of these texts was the ivory-tower of old, the palaces and the temples, the world of the court-scribe. Collections like CH were a model of justice meant to inspire; a treatise, with examples of the exercise of judicial power. They were records of precedent, but not of legislation.

Scholars have long noted that the style—if not always the content—of law in the Torah resembles the legal writings of the ancient Near East, such as the so-called “Code” of Hammurabi. In the next essay, I will show how the lessons scholars learned about CH as essentially common-law as opposed to statutory law sheds great line on law in the Torah and elsewhere in the Tanakh. In the fourth and final essay, I will show how this understanding of the nature of legal texts in the ancient Near East can bring new light to the divergent formulations of law found in the Torah.


The next installment of this series will appear Tuesday morning, December 10th.

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.

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  1. Rabbi Berman,

    What does all this mean for what we understand by Orthodox Judaism? We officially don’t believe in the development of law (at least not in the larger sense which this essay implies). And yet, based on what you’re saying, we in the Orthodox community have it wrong.

  2. Dear Meir,
    I’m glad you asked! This is why I’ve written Essays VII and VIII!

  3. “I am not sure that it is sound enough to have gained acceptance among those knowledgeable in the subject.”
    I am. You should read the introdution to Raymond Westbrook’s A History of Ancient Near Eastern Law (Brill, 2003).
    The “if..then” formulations should be read as examples of sound wisdom: “if you lose your credit card then you should cancel it immediately.” Only by understanding these statements in this way can we square all of the other evidence cited.

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