Echoes of Contracts in the Hebrew Legal Fictions

Three biblical laws—Exod 21:7–11, the case pertaining to the daughter sold as a slave-wife; Deut 21:15–17, the case of the man with two wives and two sons; and Deut 25:5–10, the case of the widow and the reluctant levir—concern matters that regularly occur in private contracts from the ancient Near East: the sale of daughters by fathers in debt, the bequeathing of inheritance shares to multiple sons, and the obligation to care for widowed women. Deuteronomy 25:5–10 makes for a particularly strong case study, in that it exhibits striking parallels to wills from the ancient city of Emar (modern-day Tell Meskene, Syria). Parallels in content between Deut 25:5–10 and the Emarite wills suggests that the biblical law was modeled on comparable Israelite/Judahite contracts and/or lists of contract clauses. The same conclusion applies to Exod 21:7–11 and Deut 21:15–17, two texts that likewise are marked by contract terminology.

The Distinct Nature of “Biblical Law”

This chapter concludes that “biblical law” is indeed distinct, but not for the reasons that certain intellectuals of the early 1900s advanced. It is unique because it is neither rooted in old law collections nor composed with the aim of producing an Israelite/Judahite expression of the genre. It is unique because its building blocks are rooted in legal-pedagogical exercises. And it is unique because even though its final contributors cast it as “law,” these scribes were more interested in the application of law to the sphere of worship and ethics than in the intricacies of law itself. Contrary to popular belief, then, it is not that the Israelites/Judahites merely attributed their laws to Yahweh while the Mesopotamians credited kings with the collections. Rather, the Israelites/Judahites never had law collections in the first place. With respect to Exodus 21–22, scribes repurposed an old legal exercise on damages, framing it at the front and back ends with non-legal content. As for Deuteronomy, the scribes’ contribution was even more pronounced, in that they produced new “laws,” leaving the impression that part of Deuteronomy 19–25 was rooted in an old law collection. When we examine what we call “biblical law” in the context of Mesopotamian legal-pedagogical texts, it becomes clear that its longstanding placement among the Babylonian, Assyrian, and Hittite law collections is inapt. In recognizing the practical roots of “biblical law,” we can begin to reconstruct both the impetus for its emergence and the uniqueness of its trajectory.

Introduction

The law collection genre is rooted in Mesopotamia, beginning with the Sumerian Laws of Ur-Namma in the third millennium BCE. Over the next millennium, similar collections were produced in Mesopotamia, the most famous being the Laws of Hammurabi. The Assyrians and Hittites also put this genre to use in their own contexts. It has long been taken for granted that certain biblical units—specifically, Exodus 20–23, Deuteronomy 12–26, and Priestly law—likewise reflect “native” adaptations of the Near Eastern genre. Close examination of these texts, however, indicates that they are closer in form and function to the Mesopotamian genre of legal-pedagogical texts. Mesopotamian scribes produced a wide range of legal-oriented school-texts, including fictional cases, sample contracts, and legal phrasebooks. When Exodus 20–23 and Deuteronomy 12–26 are examined against the backdrop of these Mesopotamian legal-pedagogical texts, the pedagogical roots of what scholars call “biblical law” begin to emerge.

Making a Case

Outside of the Bible, all of the known Near Eastern law collections were produced in the third to second millennia BCE, in cuneiform on clay tablets, and in major cities in Mesopotamia and in the Hittite Empire. None of the five major sites in Syria to have yielded cuneiform tablets has borne even a fragment of a law collection, despite the fact that several have yielded ample legal documentation. Excavations at Nuzi have turned up numerous legal documents, but again, no law collection. Even Egypt has not yielded a collection of laws. As such, the biblical blocks that scholars regularly identify as law collections would represent the only “western,” non-cuneiform expressions of the genre in the ancient Near East, produced by societies not known for their political clout, and separated in time from the “other” collections by centuries. Making a Case challenges the long-held notion that Israelite and Judahite scribes either made use of older law collections or set out to produce law collections in the Near Eastern sense of the genre. Rather, Milstein suggests that what we call “biblical law” is closer in form and function to a different and oft-neglected Mesopotamian genre: legal-pedagogical texts. In the course of their education, Mesopotamian scribes copied a variety of legal-oriented school texts: sample contracts, fictional cases, sequences of non-canonical law, and legal phrasebooks. When “biblical law” is viewed in the context of these legal-pedagogical texts, its practical roots in legal exercises begin to emerge.

The Role of Legal Texts in Mesopotamian Scribal Education

Mesopotamian scribal education in the Old Babylonian (OB) period included exposure to a wide range of legal-oriented texts, including sample or “model contracts,” “model cases” (or fictional cases), legal phrasebooks, and short series of laws. Although not all of these texts had immediate application, a number of them had ties to law on the ground. Sumerian model contracts, the fictional cases, and legal phrasebooks all include contractual clauses that mirror those used in actual OB contracts. The student exercise known as Laws about Rented Oxen likewise exhibits parallels with actual contracts of hire. When this diverse content is examined as a whole, it becomes apparent that the legal-pedagogical texts reflect a cultural matrix unto themselves, with copious cross-references and abundant links to law beyond the educational sphere. This legal-pedagogical content provides a crucial foundation for the reassessment of the origins of biblical law.

Is Talmudic Law a Religious Legal System?

The claim that Talmudic law is a religious legal system has long been, and continues to be, put forward by both traditional scholars of Jewish law and contemporary academic researchers. The question of whether Talmudic law is a religious legal system most certainly did not engage the Sages of the Talmud, but addressing it will help us grasp the nature of Talmudic law. Furthermore, juxtaposing Talmudic law to Biblical law will help us delineate the concept of religious law, and shed light on certain developments in the evolution of Jewish law.

LAW, RELIGION, AND SAME-SEX RELATIONS IN AFRICA

Some years back, around 2013, I was asked to write an article on the uses of the Bible in African law. Researching references to the Bible and biblical law across the African continent, I soon learned that, besides support for arguments by a few states in favor of declaring themselves “Christian nations,” the main use was in emerging debates over homosexuality and same-sex relationships—almost exclusively to condemn those relationships. In January 2013, the newly formed African Consortium for Law and Religion Studies (ACLARS) held its first international conference at the University of Ghana Legon. There, African sexuality debates emerged forcefully in consideration of a paper by Sylvia Tamale, then dean of the Makarere University School of Law in Uganda, who argued pointedly, “[P]olitical Christianity and Islam, especially, have constructed a discourse that suggests that sexuality is the key moral issue on the continent today, diverting attention from the real critical moral issues for the majority of Africans . . . . Employing religion, culture and the law to flag sexuality as the biggest moral issue of our times and dislocating the real issue is a political act and must be recognised as such.”

Human Rights and Eastern Orthodox Understanding and Teachings for a Troubled World

A discourse of human rights applies to the relations between individuals and relations between them and the state. However, from an Eastern Orthodox perspective, Biblical law diverges, and applies to even the responsibilities of entities towards themselves and their responsibilities towards God the Creator. There is a seemingly increasing declaration that human rights standards are being kept, but it is also apparent that the issue has been wavering globally for numerous years. It is clear that the COVID-19 pandemic has accelerated the destruction of the democratic fabric of the social order on which the defence of human rights is finally contingent. The question this article seeks to answer is what is the understanding of the Eastern Orthodox faith when it comes to human rights issues and what is the Church in general doing to assist in mitigating these? What is the relationship between Orthodoxy and human rights and what part does it play in the advancement of human rights? How can Orthodox teachings contribute to the protection of the dignity of the individual? The concept of ethics and human rights are positive formulations, the two seen as quality features of the Universal Creator, with ethics being the relevant catalyst to human rights and relations. Human rights are therefore expected to shape the living of man as ethics motivates human performance.