In looking beyond the Hebrew scriptures to the epigraphic corpus of the ancient Near East, we multiply the data from which to adduce theories of textual development. When biblicists hypothesize theories of textual development, they do so situated in a distinctly modern textual culture and are prone to project anachronistic attitudes and practices upon cultures at a great distance in time and place. Empirical models offer us methodological control as we observe how ancient scribes more closely contemporaneous with the scribes of Israel edited and expanded cherished texts across the centuries.
See Also: Inconsistency in the Torah: Ancient Literary Convention and the Limits of Source Criticism (Oxford University Press, 2017)
By Joshua Berman
Associate Professor of Hebrew Bible
The last decade has witnessed a development in the practice of the historical critical paradigm in biblical studies. For the better part of two-hundred years, the textual growth of the Hebrew scriptures was predicated on the examination of internal clues, such as discontinuities and irregularities within the texts themselves. Scholars saw these literary phenomena as signs of diachronic growth and adduced hypotheses to explain how the text came to the final state in which it is received today. But more recently scholars have begun looking toward empirical models of textual growth to reconstruct the development of the Hebrew scriptures. Rather than focusing exclusively on irregularities within the received text, these scholars have sought out empirical examples of documented textual growth from the epigraphic record of the ancient Near East. They have done so to probe how scribes amended and edited texts in the creation of new versions and in the creation of entirely new works. In light of the methodological impasse gripping the field, its extreme fragmentation and seemingly unbridgeable diversity, the pivot toward empirical models for textual development is a welcome and important development. We have no copies of biblical texts in hand that date from the biblical period itself, and thus can only adduce our compositional theories by working backwards from the received text. In looking beyond the Hebrew scriptures to the epigraphic corpus of the ancient Near East, we multiply the data from which to adduce theories of textual development. When biblicists hypothesize theories of textual development, they do so situated in a distinctly modern textual culture and are prone to project anachronistic attitudes and practices upon cultures at a great distance in time and place. Empirical models offer us methodological control as we observe how ancient scribes more closely contemporaneous with the scribes of Israel edited and expanded cherished texts across the centuries. Canvassing the textual culture of the ancient Near East affords us an awareness of the limitations of our own situatedness: we become aware of authorial and editorial practices at a great remove from our own, and that sometimes even seem to us counterintuitive.
The texts whose growth has been documented—the Gilgamesh epic, the Temple Scroll, the Atrahasis story, and the Etana Epic, are texts that have been the subject of scholarly attention for more than half a century. Comparative method has fruitfully mined these texts’ concepts, institutions, style and language for the light they shed on biblical literature. Curiously, it is only recently that scholars have turned to the compositional history of these texts with an eye toward elucidating the textual growth of the Hebrew scriptures.
The recent studies on empirical models of textual growth sound a consistent chord: the epigraphic evidence from the neighboring cultures of the ancient Near East suggests that many of the forms of editing routinely hypothesized concerning textual growth in ancient Israel are not attested in these comparative corpora. Contemporary theorists often assume that textual emendation in the ancient Near East can only be a process of supplementation but not of deletion. Empirical models, however, demonstrate that revisions expanded but also suppressed earlier material. Contemporary theorists often will assume that the entirety of an earlier source can be recovered through diachronic analysis. Empirical models, however, reveal that scribes rarely appropriate earlier compositions in their entirety. Contemporary theorists, especially in Pentateuchal studies, hypothesize the conflation of parallel sources. Empirical models, however, suggest that scribes did not preserve source documents unaltered and without gaps, and this is especially true in cases of conflation of parallel sources. Some theorists envision multiple stages of revision and emendation. Empirical models reveal that even the most complex documented cases rarely feature more than two or three stages of major revision of a given text.
Where other scholars have examined the editorial practices of ancient scribes, I seek to question our own notions of consistency and unity in a text, in light of what we discover from the writings of the ancient Near East. Scholars have long known that this corpus can surprise us with the seeming “inconsistencies” that it yields. A foundational staple of early Penateuchal criticism maintained that the disparity of divine names found in the Torah, was itself proof positive of composite authorship, and a key to determining and delimiting its sources. This axiom had to be walked back in light of evidence showing that the ancients were quite comfortable referring to the same deity by multiple names, even within a single passage. In like fashion, the alternation in address between singular and plural pronouns, sometimes referred to as Numeruswechsel, was thought to designate various sources or strata in the Hebrew Bible. However, the phenomenon is also found in the 8th c. Aramaic Sefire treaty, in a literary setting where we cannot propose diachronic composition. In one stele of the treaty the suzerain commands the vassal to hand over fugitives, addressing him, seemingly in random fashion, sometimes in the singular, and sometimes in the plural.
These examples serve as a warning flag for scholars looking to parse the text on the basis of their own notions of literary unity. The ancient text is a minefield of literary phenomena that are culturally dependent. The diachronic scholar who treads there based solely on his or her own modern notions of literary unity, risks serious interpretive missteps. The rhetoric we find in these comparative materials can offer a control. Of course, the presence of these phenomena elsewhere does not prove that the Hebrew Bible must be read this way as well. But it should, at the very least, place a check on the confidence that a modern exegete can have when approaching the biblical text and encountering literary phenomena that seem inconsistent. Perhaps the most prudent lesson from such examples is that we must attain competency as readers before we engage the text, and this we can do only by canvassing the available cognate materials.
As another example, consider historical inscriptions left us by Ramesses the Great, who ruled Egypt in the 13th century BCE. To commemorate his greatest achievement, a victory over his arch-enemies the Hittite Empire at the battle of Kadesh in 1274 BCE, Ramesses inscribed three mutually exclusive and contradictory reports, one right next to the other, each serving a distinct rhetorical purpose, on monumental sites all across Egypt. Not only that, but the longest of these compositions is full of what we would deem internal contradictions as well. These practice are wholly foreign to modern writers, and far from intuitive. Literary conventions are culture-specific.
A review of primers for source-critical methodology reveals a telling lacuna: these offer detailed examples of how to identify inconsistencies, tensions and contradictions within the texts of the Hebrew Bible and as telltale signs of revision. But the underlying assumption typically is that the modern exegete will be able to correctly flag these, on the basis of his or her own notion of consistency and literary unity. Not one of these primers suggests that competency in the writings of the ancient world is necessary in order to avoid anachronism. Not one cites even a single example of a seeming inconsistency, but one we know to overlook because of evidence from other ancient works.
There should be no delusion however that this critical reservoir of comparative data from the cognate literature will become fully available any time soon. There has been no survey of Egyptian narrative techniques, nor of the poetics of Mesopotamian narrative that would allow us test the bounds of literary unity in narrative for these ancient writer. Suffice it to say, there has also been no monograph produced that sets out to compare biblical narrative technique with that of the surrounding cultures. The work ahead is great.
A greater appreciation of ancient legal convention and legal thinking could also reshape our understanding of the seemingly contradictory legal codes in the Torah. We think about law in vastly different ways than did inhabitants of the ancient Near East, in ways that need to be examined and unpacked.
Today, in thinking of law as something contained in a codified text, most people have in mind what legal theorists call statutory law—not in the American sense of “statutes,” or isolated pieces of legislation, but in the sense of a legal system in which the primary source of law is codes. In this conception, only what is written in the code is the law, and the code supersedes all other sources of norms that preceded the code’s formulation. Therefore, courts must pay great attention to the wording of the text and cite the text in their decisions. Where explicit legislation is lacking, judges must proceed with the code as their primary guide.
For many of us today, this approach to law is intuitive and even unremarkable. Yet as recently as the early 19th century, the vast majority of Germans, Englishmen, and Americans thought about law in very different terms—namely, in terms of common law. In that view, a judge arrives at a decision based not on a written code but on the mores and spirit of the community and its customs. Legal norms develop, gradually, through the distillation and continual restatement of such court decisions, and judges are empowered incrementally to modify those norms in consultation with previous judicial formulations. Critically, the judicial decision itself does not create binding precedent.
As a system of legal thought, common law is consciously and inherently incomplete, fluid, and vague. When decisions and precedents are collected and written down, the resultant texts do not become the source of law but rather a resource for later jurists to consult. Every decision, in the words of the early-19th-century theorist John Joseph Park, becomes “a datum from which to reason,” allowing judges to address new needs and circumstances by reworking old norms, decisions, and ideas.
Common-law thinking has flourished in communities where common values and cultural touchstones were maintained by all. In the pre-modern period, when villages were small and homogeneous, families typically lived in the same place for generations and expected to do so into the future, sharing with others a common language, religion, and heritage as well as common economic opportunities and common enemies. In these circumstances, there was no need for societal norms to be legislated, let alone written down. What was expected of a person in attitude and behavior was part of the warp and woof of day-to-day life. There were no “jurists” as a professional guild. Village elders, in possession of the wisdom of the ages, determined on an ad-hoc basis the best redress for the situation at hand.
Where cohesion breaks down, however, and the continuity and homogeneity of small communities are torn asunder, it becomes difficult to anchor law in a collective set of mores and values. There are some ancient and less than ancient precedents for this. The first written Greek laws, which date to the middle of the 7th century B.C.E., proliferate in just the period when Greek city-states were developing more formal political systems. Roman law, canon law, and even the English writ system represent attempts similarly to systematize law across locales. But it is only with the onset of modernity that the pattern becomes truly widespread.
In 19th-century Europe, with large-scale urbanization and the rise of the modern nation-state, disparate individuals were coalescing into social and political entities of ever greater scope. What was needed to unite a heterogeneous populace around a single code of behavior was, among other things, a clearly formulated set of rules to bridge the behavioral and attitudinal differences among constituent citizens. By the end of the century, legal codes were being drafted across much of the Western world; the statutory approach had won the day.
This remains the case today. For us, citizens more often than not of heterogeneous and sometimes multilingual political entities, far removed from the spirit that animated the common-law jurisprudence of the past, codified law is law.
This brings us to law in the Bible—there was no Israelite “law” in the sense of a statutory code. Indeed, there was no such law anywhere in the ancient Near East. But what of what is often called history’s first law code, the Code of Hammurabi, which dates all the way back to the early second millennium B.C.E.? As scholars have reluctantly come to conclude, that famous document is in fact no code at all.
French archeologists discovered the Code of Hammurabi while digging in 1901 at Susa, ancient Shushan. There they unearthed an imposing seven-foot-tall column of black diorite inscribed with cuneiform writing on all sides; today it stands as the marquee holding of the Louvre in Paris. Quickly translating the Akkadian script, written around 1750 B.C.E., scholars found that it contained provisions—282 of them, to be exact—like this one:
 If anyone 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.
And this one:
 If a builder builds a house for someone, and does not construct it properly, and the house that he built falls in and kills its owner, then the builder shall be put to death.
Seeking to define the nature of this text, its early decipherers reasoned that since it looked like a law code, and read like a law code, it had to be a law code. This was, after all, the early 20th century, and every civilized country in Europe was beginning to champion statutory law. Moreover, evidence was quickly adduced to support this thesis in the form of more than fifty fragments of the Code found all across the Mesopotamian region. These fragments, copies that had been made over a period of more than 1,500 years, revealed virtually no adjustments of content, further cementing the impression that the Code of Hammurabi—or CH, as scholars refer to it in shorthand—enjoyed canonical status throughout Mesopotamia and was unrivaled as the source of law.
Around the middle of the 20th century, however, cracks began to appear in the scholarly consensus. For one thing, it was well known that throughout the ancient Near East, there had been wild fluctuations of economic inflation and deflation; nonetheless, the financial penalties mandated by the Code for various offenses remained unchanged everywhere in the epigraphic record. For another thing, significant areas of day-to-day life receive no attention at all in the Code; for example, there are no stipulations relating to inheritance—inexplicable in the binding law code of a culture.
Even more puzzling was the evidence from the archeological record. Copies of CH showed up in royal archives and in temples, but never at the sites of local courts, and never together with the thousands of court dockets that were coming to light from ancient Mesopotamia. Most puzzling of all: not one of those court dockets ever refers to or cites CH—or any law collection—as a source of law. Finally, and crucially, many court dockets record proceedings of cases whose remedy CH directly addresses but in which the judge rules counter to the Code’s prescription.
These complications raised two inter-related questions. If collections like CH did not contain the law, where could the law be found—where was it written? And if texts like CH were not statutory codes, what were they?
Where was the law written in Mesopotamia? The answer is: it wasn’t. A judge would render a decision by drawing on an extensive reservoir of custom and accepted norms. Such decisions would vary from locale to locale. One could not point to an accepted text of the law 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, as we have seen, that was Greece. Nowhere in the cultures of the ancient Near East is there a word for written law. The concept does not exist.
So if CH wasn’t a collection of laws, what was it? Both it and other such collections 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. The collections offer a model of justice meant to inspire: a kind of treatise, proceeding by way of examples of the exercise of judicial power. They are records of precedent, not of legislation.
All of this throws great light upon what we call law in the Bible. Nowhere does the Bible instruct judges to consult written sources. Nor do narratives of adjudication, like Solomon’s “split the baby” trial in the book of Kings, make reference to written sources of law. Nor do any of the collections of biblical “laws”—like those in the so-called Book of the Covenant (Exodus 21-23) or those enumerated in chapters 12-26 of Deuteronomy—strive to provide a comprehensive set of rules to be applied in judicial cases.
Similarly, as in CH, critical aspects of daily life receive no legal attention. The Torah clearly endorses and sanctifies the institution of marriage, for example; yet, if you want to get married, it nowhere says just what you have to do, ritually or contractually. In a work of statutory law, that would be unthinkable.
When viewed as statutory law, the law collections of the Torah are taken to be mutually exclusive. This led scholars to adduce a hypothesis to explain how these collections came to be incorporated in a single work. That gave rise to the notion of the Torah as a compromise document. However, the law collections are too contradictory to be deemed a compromise. Moreover there is no extra-biblical example of a legal document that works this way; indeed, there are no examples of statutory systems of law anywhere before 5th c. BCE Greece. When viewed as common-law examples of justice, the Torah’s laws emerge as reapplications of one another. All formulations are preserved because they have value as “data from which to reason” in the future.
Were the law collections of the Torah mutually exclusive and in competition with one another, we would expect to find evidence of this elsewhere in the Hebrew Bible, because it is widely held that authors and editors adopting the worldview of one collection or another are responsible for composing or editing many of the other books of the Tanakh. In fact, we find no book that aligns with a single collection of law. Rather all the other books resonate with more than one of the law collections, and sometimes all of them. No king, priest, prophet or biblical narrator ever argues for the validity of one version of the law over another. Because the law collections of the Torah are common-law reiterations of one another, other biblical writers freely sought inspiration from any or all of them.
All of this sheds great light on the history of Pentateuchal criticism. The early critics of the Pentateuch focused on narrative and scarcely ever noticed discrepancy in the laws of the Torah. This is because in the history of ideas, the idea of statutory law rises to the ascendancy only in the middle of the nineteenth century, and it is only from this period on that scholars began to read the Torah’s law collections as standing in contradiction with one another.
Portions of this essay appeared previously as “Empirical Models of Textual Growth: A Challenge for the Historical-Critical Tradition,” JHS 16:12 (2016) 1-18 - http://www.jhsonline.org/Articles/article_224.pdf and in “What is This Thing Called Law: The Jewish Legal Tradition and Its Discontents,” - https://mosaicmagazine.com/essay/2013/12/what-is-this-thing-called-law/
Carr, David M. The Formation of the Hebrew Bible: A New Reconstruction. New York: Oxford University Press, 2011.
Müller, Reinhard, Juha Pakkala, and Bas ter Haar Romeny. Evidence of Editing: Growth and Change of Texts in the Hebrew Bible. Atlanta: SBL Press, 2014.
Pakkala, Juha. God's Word Omitted: Omissions in the Transmission of the Hebrew Bible. FRLANT 251. Göttingen: Vandenhoeck & Ruprecht, 2014.