Some Characteristics of Biblical Law

Another striking divergence between biblical law and other legal collections in the ANE is found in the ascription of authorship. ANE law typically comes from the king. A good example can be found on the stela containing the laws of Hammurabi. At its top, the god Shamash is depicted giving Hammurabi the authority to rule; but the text makes it clear that the laws originate with the king himself. The situation is different in biblical law. For the most part, it regards the source of its legal pronouncements as Israel’s God. There is a relationship between the comprehensive social vision conveyed in the Pentateuch’s legal collections and their claim to divine origin. In the Torah, law seeks to articulate the meaning of the relationship that YHWH has established with Israel for all aspects of life.

See Also: An Introduction to Biblical Law (Eerdmans, 2017).

By William S. Morrow
Prof., Hebrew and Hebrew Scriptures
School of Religion
Queen's University
morroww@queensu.ca
May 2017

In this essay, I will focus primarily on law as it is found in the first five books of the Bible. For the sake of variety and to put readers on notice that I am describing literature that appears in scriptures revered by both Jews and Christians, I refer to their shared biblical canon as either the “Old Testament” or “Tanakh” (an acronym that refers to the three major sections of scripture according to Jewish tradition). The first five books of that canon will be called both the “Pentateuch” and the “Torah.” All references are to the NRSV.

This essay is divided into the following sections:

1. Defining biblical law
2. The uniqueness of biblical law against its ancient Near Eastern (ANE) environment
3. The overarching interests of biblical law
4. References and sources for further study

Below, I frequently make reference to “law collections” in the Pentateuch. The major bodies of biblical law mentioned include:

• The Covenant Code (Exodus 20:22–23:19)
• Priestly law in Exodus—Numbers
• The book of Deuteronomy.

None of these, however, is a single composition. In fact, they are all collections of collections. However, I will not describe the discrete groupings comprehended by each of them here.

1) Definitions

What is “law?” In fact, this is not any easy question to answer, because traditional societies don’t always set out the principles or rules that govern their lives in ways that are recognizable in terms of contemporary categories. One way of determining what law is in an ancient society, is to categorize the cultural behaviors to which sanctions (i.e., punishments) are applied. This a useful mode of inquiry so long as it is recognized that sanctions can be applied by supernatural as well as human agencies.

However, modern legal theory does not recognize the exercise of supernatural agents and this assumption can influence an approach to the description of biblical law. A good example of this can be connected to the concept of “positive law.” Positive law is law that is administered by systems of courts and judicial personnel. Recently, Raymond Westbrook and Bruce Wells (2009) have published an excellent introduction to positive law in the Old Testament. Using modern juridical categories, they provide informative summaries of processes of litigation, family law, property law, criminal law and contracts in the Torah.

Nevertheless, there are difficulties in using contemporary definitions of law to describe the interests of the bodies of instruction in biblical law. For example, by their own admission, Westbrook and Wells only deal with about 20% of the rules set out in the Pentateuch. What is to be done with other regulatory categories, including the large number of ritual instructions or those that lay out primary rights and duties (cf. Patrick 1972)?

A second problem arises from the fact that laws in the Torah are not presented systematically. For example, despite their importance in the ancient world, there are no rules governing adoption or rental of real property in the Pentateuch. One of the consequences of this observation is that the word “code” should generally be avoided when referring to collections of law in the Bible or the ANE. A “law code” is a normative document that typically strives to be comprehensive in dealing with matters of criminal and civil law. There are no such documents available from the biblical world. So, e.g., while it is customary to refer to the contents of the famous stele of the Old Babylonian ruler, Hammurabi (c. 1750 BCE) as the “Code of Hammurabi,” it is not a law code in the modern sense of the term. The same goes for conventional epithets in biblical scholarship such as the “Covenant Code” (Exodus 20:22–23:19) or the “Holiness Code” (Leviticus 17–26).

A third problem asserts itself in trying to determine the relationship between collections of positive law preserved in the ANE (e.g., the Laws of Hammurabi) and the Old Testament (e.g., Exodus 21:12–22:20) and actual legal practice. Currently, scholars propose three different viewpoints:

1. They were written down to provide guidance to judges in making legal decisions.
2. They are treatises meant primarily for training scribes in legal reasoning.
3. They are expressions of royal propaganda intended to enhance the image of a king as a just ruler.

Probably all three of these concepts are justified to some degree, and each can be applied to the interpretation of biblical law:

1. It would be surprising if there were no connection between law in the Torah and ancient Israelite legal practices. At least some biblical law was likely intended to be implemented.
2. Some biblical law seems to exist more in the area of theory than practice. Regulations about striking the pregnant woman in biblical (Exodus 21:22-25) and ANE sources (e.g., Laws of Hammurabi §§ 209-214) are a case in point. These instructions allowed scribes to learn principles of legal reasoning, such as the relationship between homicide, criminal negligence and the value of a human life.
3. The collections of biblical law have their own propaganda value. They exist partly to enhance the image of the divine king who is their source (cf. Deuteronomy 4:5-8).

But what about ritual law, which is quite prominent in the Pentateuch? Above, I said that a definition of “law” depended on the perception of a system of sanctions. Particularly with respect to the cultivation of holiness and sacrificial practice, many norms are unenforceable by human means because their violations may be not be detected. In such cases, supernatural sanctions can be evoked. This is apparent, e.g., in the use of curses (e.g., Deuteronomy 27:11-26) or the threat of being “cut off” from the community (e.g., Leviticus 18:29; 20:17, 18). From that perspective, sacrificial practices and purity regulations also function as law, because they assume the possibility of punishment by divine agency.

Another brake on the temptation to ignore cultic norms is indicated by the covenantal form that often frames or accompanies collections of biblical law including rituals. In fact, covenantal motifs are connected to all of the major collections of law listed above. Exodus 24:3-8 reports a ritual of covenant ratification in which Israel accepts the contents of the Covenant Code. The Holiness Code ends with covenantal curses and blessings (Leviticus 26), while the book of Deuteronomy is thoroughly shaped by conventions connected to ANE treaties and loyalty oaths.

2) Biblical law against its Ancient Near Eastern Environment

Is there anything that makes biblical law unique against its ANE environment? After all, the categories of law typically found in the Pentateuch have many parallels. Whether the discussion touches on covenant form, civil and criminal cases, ritual purity, rules for priestly conduct and sacrifice, comparisons can be made with an array of texts from the ANE. However, two major features stand out.

In the first place, biblical law routinely combines matters of criminal and civil law with ritual instructions and ethical teachings. There is no real precedent for this in ANE law. By and large, treaties and loyalty oaths, civil and criminal law, and ritual texts were transmitted separately. The ANE legal collections showing the closest analogy to the range of concerns found in biblical law are the Hittite instructions (Weinfeld 1973); but, even they do not combine all the genres found in biblical law. For example, they do not contain extensive collections of third-person case law such as the one found in the middle of the Covenant Code (Exodus 21:18–22:17). Biblical law was unique, therefore, in terms of the breadth of the social vision its legal materials sought to convey.

Another striking divergence between biblical law and other legal collections in the ANE is found in the ascription of authorship. ANE law typically comes from the king. A good example can be found on the stela containing the laws of Hammurabi. At its top, the god Shamash is depicted giving Hammurabi the authority to rule; but the text makes it clear that the laws originate with the king himself. The situation is different in biblical law. For the most part, it regards the source of its legal pronouncements as Israel’s God. There is a relationship between the comprehensive social vision conveyed in the Pentateuch’s legal collections and their claim to divine origin. In the Torah, law seeks to articulate the meaning of the relationship that YHWH has established with Israel for all aspects of life.

3) The Overarching Interests of Biblical Law

While teaching biblical studies to theology students over the years, I became aware of a number of the challenges that legal discourse in the Pentateuch poses to contemporary readers. Of course, some of the contents of biblical law can be offensive. Many modern readers will have no interest, e.g., in living in societies where the ideal ethical actor is assumed to be a land-owning male. Moreover, the logic of a particular collection of instructions may seem opaque and its selection of laws arbitrary.

As I taught, however, I found that there was a significant overlap between the commitments of my students and the authors/editors of the major bodies of law in the Pentateuch. Both groups manifest an intense interest in creating viable communities of faith. In fact, the various collections of law in the Torah not only regulate behavior, they offer visions of what a functional community should look like. This insight was programmatic in writing my textbook, An Introduction to Biblical Law (Morrow 2017).

The programmatic dimension of biblical law can be profitably described by using some of the categories of canonical criticism identified by James Sanders (1987). Marks of the canonical process typically include the following:

1. a) Canon and community are inextricably bound.
2. b) Scripture contains a plurality of voices.
3. c) Scripture allows for both community stability and adaptability.
4. d) The underlying purpose of Scripture is to enable communities to monotheize in a particular time and place.

a) Canon and Community

Each collection of law in the Pentateuch assumes a certain concept of community. This becomes apparent by analyzing some of their representative instructions. For example, while the Covenant Code appears to address an agricultural society with no defined religious center, Priestly thinkers envision a society that is constantly moving in and out of sacred space. Deuteronomy, by contrast, assumes that most Israelites live in cities, away from the only legitimate place where sacrifices must be offered.

b) Plurivocality

At present, there is a debate among biblical scholars as to how to think about the differences between the various law collections, For example, was Deuteronomy intended to displace the Covenant Code or complement it? In fact, there is room for both perspectives. The Torah’s major legal collections both challenge and supplement each other’s vision of the ideal community. What I find especially informative, however, is that the differing community models presented in the Torah have not been erased by the editors of the Tanakh. Its accommodation of a plurality of voices allows for the idea that no one form of Israel was valid for all time and in all places.

Certainly, some cultural assumptions are common to all three of the major law collections. These include important religious ideas and also social conventions. Religiously, all have a place for sacrifice. Socially, it is clear that males have a prominence in public life that women lack. Even so, the Old Testament’s law collections had different emphases and felt free to alter pre-existing traditions and institutions in order to promote Israel’s collective life. This is most dramatically communicated by the reforms of Deuteronomy. With one sweep of the hand, this biblical book was prepared to do away with many venerable traditions in the religion of ancient Israel.

Other modifications can also be seen. For example, the Covenant Code, the Holiness Code and Deuteronomy all innovate differently with respect to sabbatical institutions for the relief of the poor. The Covenant Code’s demand to fallow local fields every seven years (Exodus 23:10-11) was not followed in Deuteronomy, which proclaimed a national seven-year cancellation of debts instead (15:1-11). Leviticus 25, however, adapted both institutions. Against the Covenant Code, it demanded a single fallow year on a national basis. Against Deuteronomy, it did not allow for the cancellation of debts before the Jubilee.

c) Stability and Adaptability

Biblical law possesses a kind of dynamism. In part, this is due to the fact that it does not suppress a plurality of models for the faithful community. This plurality illustrates how ancient Israel was able to maintain stable identification with the Mosaic tradition while also adapting to new cultural challenges. For example, in framing its vision of the functional faith community, the Covenant Code assumed that YHWH was a king who had no need of the institutions that often supported human monarchies. It knows of neither palace nor temple. Priestly law was impressed by the necessity of centering the community on a visible manifestation of divine presence. Its idealized sacred space was the tabernacle, which assumed aspects of both temple and palace. It was administered by priestly functionaries with no reference to a human monarchy. Deuteronomy, however, allowed for the possibility of a human king (17:14-12). In other words, what remained stable was the concept of the kingship of God; but this metaphor was capable of being adapted to serve various community configurations.

Of course, issues of adaptability and stability did not come to an end with the canonization of the Pentateuch. For that reason, many chapters of my book also briefly indicate how legal principles in the Torah were addressed by communities of Jews identifiable in the first century of the Common Era, including the primitive church, the Dead Sea Scroll sect, and the proto-rabbinic movement. It was imperative for all three communities to affirm continuity with the Mosaic tradition, while also innovating in response to unprecedented historical and religious conditions. These developments are good illustrations of the truth of the rabbinic proverb, “What is Torah? It is the study of Torah.”

d) Monotheizing

To “monotheize” means to bring every sphere of life under the aegis of God. This process stands in contrast to compartmentalizing life into various discrete spheres. To some extent, compartmentalization is a property observable in collections of ANE law. Civil and criminal law is not generally transmitted in the same works that contain ritual instructions. And matters of ethics may be treated separately from either.

Biblical law works against a tendency to compartmentalize life. While its laws tend to be representative rather than exhaustive, matters typically divided between “sacred” and “secular” in the modern world stand closely together in the legal collections of the Torah. Of course, the concept of monotheizing risks being an anachronism. Israel’s law makers did not necessarily believe that YHWH was the only deity that existed. Nevertheless, all of the biblical law collections assumed that Israel could only live with integrity with YHWH if it worshipped no other gods, and if it brought its entire life under what sociologist Peter Berger (1967) called the “sacred canopy.”

As monotheizing is a rather theological category, it’s worth making an observation that evokes the (mainly) Christian concept of “incarnation” in describing the overall interests of biblical law. Implicit in all law collections of the Pentateuch is the belief that YHWH wants his spirit embodied in human community. The eschatological hope of the New Testament is that the human community will become a dwelling for the divine reality. Biblical law, however, did not think of this expectation in future terms. Each of its major collections believed in the possibility that an authentic community of faith, fully responsive to the divine presence, could be realized in history.

4) For Further Study:

There are different ways of approaching a subject as rich and as multi-faceted as biblical law. Indeed, the study of this body of literature can be technically demanding and mastery of the field involves several types of knowledge, including:

• familiarity with the literary techniques used by ancient scribes
• a knowledge of legal process and legal history
• expertise in the literatures of surrounding cultures, especially texts from ancient Mesopotamia
• historical models for the composition of the Pentateuch
• the use and interpretation of biblical law in post-biblical times

Readers wanting information on these and many other related topics now have at their disposal several comprehensive surveys of the field. The list below combines them along with the references used in this paper:

Anchor Bible Dictionary. 1992. New York: Doubleday.

Barmash, Pamela (ed.). 2017. The Oxford Handbook of Biblical Law. New York: Oxford University Press.

Berger, Peter. 1967. The Sacred Canopy: Elements of a Sociological Theory of Religion. Garden City: Doubleday.

Morrow, William S. 2017. An Introduction to Biblical Law. Grand Rapids: Wm. B. Eerdmans.

Patrick, Dale. 1972. “Casuistic Law Governing Primary Rights and Duties.” Journal of Biblical Literature 92: 180-84.

——————. 1985. Old Testament Law. Atlanta: John Knox.

Sanders, James. 1987. From Sacred Story to Sacred Text: Canon as Paradigm. Philadelphia: Fortress.

Strawn, Brent (ed.). 2015. The Oxford Encyclopedia of the Bible and Law. 2 vols. New York: Oxford University Press.

Weinfeld, Moshe. 1973. “The Origin of the Apodictic Law: An Overlooked Source.” Vetus Testamentum 23: 63-75.

Welch, John (ed.). 2011.“The Biblical Law Cumulative Bibliography.” AWOL—The Ancient World Online. http://ancientworldonline.blogspot.ca/2011/06/bibliography-of- biblical-law.html

Westbrook, Raymond (ed). 2003. A History of Ancient Near Eastern Law. 2 vols. Handbuch der Orientalistik 72. Leiden: Brill.

Westbrook, Raymond and Bruce Wells. 2009. Everyday Law in Biblical Israel: An Introduction. Louisville: Westminster John Knox.