Part of the 5 Things to Consider When Reading Biblical Law series
5 Things to Consider When Reading Biblical Law, Part II
Besides the uniqueness of Hebrew law in the ancient Near East (#1), we must be ever aware of our own legal assumptions (#2) and the way in which Scripture’s laws are storified and entangled with stories (#3).
#2 The Reader’s Legal Assumptions
Two conspicuous legal frameworks we bring to biblical law are that laws work merely like statutes and they mainly focus on retribution for wrongs. However, these frameworks do not help us understand the Torah.
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Biblical Laws Aren’t “Statutes” (not like we think, anyway)
We all come to the legal portions of the Bible with highly curated ideas about what terms such as “legal” and “law” mean. As previously noted, most of us bring a reductionistic statutory approach to laws, in which laws are written, binding, and either followed or broken by citizens, with outlined consequences. Think of laws regarding theft: What distinguishes theft from robbery, or larceny-theft from grand larceny? In most nations, legal statutes outline theft in all its forms with definitions, categories, and what constitutes an instance of a violation. Or consider a law most drivers have broken: speed limits. The state of Missouri has a set of statutes about speeding that resembles many states’ laws:
2005 Missouri Revised Statutes – § 304.009. Speed limit—violation, penalty.
Notwithstanding the provisions of section 304.010, a speeding violation of section 304.010 which is over the posted speed limit by five miles per hour or less is an infraction. The court costs assessed for a violation of this section shall be the same as the costs assessed pursuant to section 304.010.
Of course, prior sections of the statutes outline different kinds of motorways, motor vehicles, ways of measuring speed, and more. A driver either follows or breaks the law. An “infraction” incurs a penalty. Failure to follow the enforcement can result in a warrant, prosecution, and even jail time. We are all familiar with this kind of legal system.
Like most other law codes in the ancient Near East and unlike those of the modern Western world, the biblical authors treat legal material as “compendia of legal and ethical norms, rather than statutory codes.”1Joshua Berman, Inconsistency in the Torah: Ancient Literary Convention and the Limits of Source Criticism (New York: Oxford University Press, 2017), 116. The Torah’s laws seem to express a common or customary law: decisions made by precedents and customary guidance rather than to articulate precise measures of following or breaking laws.
Biblical law certainly contains some codes with precise consequences. And they all presume that keeping the law forms Israel as a wise and discerning nation. Here, we refer only to the paradigms that we bring to our reading of law. If we bring a statutory paradigm, we will believe that punishment to deter violation is the primary purpose of these laws (as with speeding in Missouri’s statutes). But as we will see, that is not the case.
Retribution vs. Restitution
What happens today when you break a felony law? You do the crime, you do the time—as they say. Yet, the biblical thinking on felonious crimes does not involve a system of confinement. There’s no “serve the time” in Scripture. It requires that most wrongs be reconciled, even if some acts must be remedied through capital punishment. (It’s worth noting that a list of capital offenses within the United States today [depending on how one adds these things up] would likely exceed the lists of executable offenses in the Torah.) Since God teaches and demands justice, the biblical authors include capital offenses against God Himself. In the Torah, one can be executed for contempt of God (e.g., divination, sacrifice, blasphemy, etc.), contempt of authorities (e.g., parents or judges), homicide, rape, kidnapping, and various sexual crimes. But the majority of legal teaching involves routes to peacemaking between the wrongdoer and the wronged—even if there is little vision for heartfelt forgiveness between them.
For the first time in legal history, human life is worth more than property.
The lack of prisons in the land of Israel, which is unique in the ancient Near East, tips us off to other ethical priorities in the law. First, unlike anywhere else in the ancient Near East, property crimes cannot be punished with human life. In Hebrew legal thinking, a thief should not be executed for thievery—an ethical innovation which some have suggested emphasizes the value of human life in a previously unknown way.2Jeremiah Unterman, Justice for All: How the Jewish Bible Revolutionized Ethics (Philadelphia: Jewish Publication Society, 2017), 21–30. For the first time in legal history, human life is worth more than property.
Property crimes and personal injury are settled by restitution. The Pentateuch will eventually establish cities of refuge for those accused of murder—and unlike other such places of asylum in the ANE, cities of refuge are only for cases of murder.3Jonathan P. Burnside, “Exodus and Asylum: Uncovering the Relationship between Biblical Law and Narrative,” Journal for the Study of the Old Testament 34, no. 3 (2010): 243–66. These cities and cases are administered by the Levites and function in some ways like a halfway house for those accused, giving them recourse to due process.
Does the biblical literature contain statutes with consequences? Yes. But the handful of oddities in Hebrew law and its enmeshment with ritual instructions, ethical teaching, and historical narrative shows that it’s doing something else entirely than ruling a people by means of statutory codes.
#3 The Torah Is Narrative-Engaged Reasoning
Recalling Hammurabi’s 282 laws, no individual law needs to appear in any particular position on the list. Law 1 could be in position 27 or 234 or anywhere else on the list. In other words, there seems to be no discernible order to the list.
We also think of modern laws as independent rules, which allows us to arrange them in many ways. Jonathan Burnside points out that the positioning of modern laws within the legal codes has no real order. Regarding the prohibition of necrophilia in the British parliament in 2003, he writes, “There is no reason why [that law] has to appear at that particular point in the statute, and its meaning would not be affected if it appeared somewhere else.” However, “it is frequently the case that the way in which biblical law is structured and organized internally determines the meaning of its content.”4Jonathan P. Burnside, God, Justice, and Society: Aspects of Law and Legality in the Bible (New York: Oxford University Press, 2010), 21. The ordering of sections of the biblical laws is not slapdash and suggests that they were intended to be read in a specific arrangement and together with other laws and stories.
The special arrangement of the biblical laws corresponds to several factors described below. These factors bespeak the difference between our statutory sense of law and the Hebraic notion of torah. Some have suggested that translating the Hebrew term torah as “law” twists the meaning beyond what is intended. Some have suggested that we translate torah as “instruction,” “teaching,” or even “guidance,” which puts the idea of biblical law in league with wisdom literature.
Indeed, Psalm 1—broadly taken to be more wisdom than psalm—advises that the flourishing person is the one whose “delight is in the torah of YHWH and upon His torah he reflects day and night” (Psa 1:2). It’s certainly difficult to imagine someone meditating with delight upon an isolated criminal law statute and not the matrix of instruction, narrative, and poetry across the Torah instead. Indeed, the wise son of Proverbs listens to his father’s instruction and doesn’t abandon his “mother’s torah” (Prov 1:8). If torah is instruction, then the order and connective tissues of laws matters. Otherwise, we risk reducing law merely to sutras or aphorisms—freestanding legal directives.
If the biblical laws are merely sutras or sayings, then the ordering might be irrelevant. As we will see in Part III, the interlacing of principles and concrete instances compose particular sequences of thought that reveal the wisdom of legal reasoning.
Like the wisdom literature of Israel, the law has a distinct literary form and function, forcing the reader or hearer to think about its structure and how it interplays with the narratives within which laws are embedded. We will be considering Leviticus 18 in the next few sections, and so that text should be read carefully with an eye to what unstated premise connects all these rulings together.
Laws Clustered to Imply Narratives
First, laws are sometimes clustered according to effect to force the audience to reason with them together. Take the example of the sexual instructions of Leviticus 18 and 20. Both chapters list out the kinds of people and circumstances where sexual contact is impermissible. Within that non-exhaustive list of sexual liaisons, we find one odd command wedged in: “You shall not give any of your offspring to sacrifice them to Molech” (18:21a). Why would a commandment about Molech-worship appear in an extended exploration of forbidden sexual practices? The author appears to be demanding some examination on the audience’s part, to figure out what child sacrifice has to do with sexual behaviors.5For more on conceptions of children and stages of life in the Hebrew Bible and the ancient Near East, see: Shawn Flynn, Children in Ancient Israel: The Hebrew Bible and Mesopotamia in Comparative Perspective (New York: Oxford University Press, 2018).
One suggestion for the inclusion of child sacrifice in sexual restrictions: of the forbidden sexual practices that can result in offspring, a child’s life is cultically endangered simply because it might be an unwanted child. This is true today in cases of female foeticide still prevalent in India (i.e., abortions solely because the in-utero child is a girl) and abortions due to the cognitive or physical abilities of the child proudly practiced widely in Iceland today (e.g., Down’s Syndrome, genetic disorders, physical deformities, or any kind of abnormality detectable before birth—though those detection tests are now in dispute). Genesis also contains notable examples of children conceived outside of the primary marriage (e.g., Ishmael) where their unwanted status ends in attempts to put their lives in jeopardy (Gen 21:9–21).
Sacrificing a healthy and wanted male infant would have been irrational for many reasons in the ancient world: childbirth was dangerous, child and mother mortality was high, children were depended upon as a labor force, and so on. Hence, we must consider what kind of children were most likely to be offered as sacrifices. The answer, unfortunately, would most likely be infants with deformities or conceived from illicit sexual relationships. There is a yet unanswerable question of whether such children would have been the appropriate objects of sacrifice, but that they would likely be targeted for such cultic rituals seems possible.
Within Leviticus’s reasoning about sexual restraint, the vulnerability of children is highlighted without comment by a prohibition against the most grotesque and irrational sacrifice imaginable: that of human children. By co-locating child sacrifice with sexual instruction in its laws, the author appears to force the inclusion of children into the sexual equation as a possible outcome of some opposite-sexed behaviors. Leviticus also underlines the equal and opposite error of excluding the possibility of children within or outside marital sex acts (e.g., sex during menstruation, homosexual acts, sex with animals, etc.).
Surprisingly to many, no statement of a proper sexual act can be found in Israel’s legal instruction.
Surprisingly to many, no statement of a proper sexual act can be found in Israel’s legal instruction. The audience is left to deduce all the prohibited sexual acts, which leaves only one proper kind of sex: between a man and woman within marriage and not during menstruation, where the parents are theologically committed to YHWH and not to any other gods (especially Molech). None of this is stated overtly but implied through a matrix of clustered legal reasoning and surrounding narrative—leading from principle to instance and back again. Here in Leviticus 18, we started with the principle that some sexual behaviors violate God’s covenant with Israel. These are then connected both to narratives of sex we’ve already heard (more on this below) and barbarous acts that might ensue because of prohibited sex acts (i.e., human sacrifice).
Narrative-Shaped Laws
Second, unlike any other legal material in the ANE, Hebrew laws were often shaped into a story format. Assnat Bartor argues in Reading Laws as Narrative that the Torah replicates familiar laws and themes found elsewhere in ancient Near Eastern legal codes. Sometimes, the Hebrew laws cover the identical legal principle or idea, but deploy its shared legal thinking uniquely as narrative.6Assnat Bartor, Reading Law as Narrative: A Study in the Casuistic Laws of the Pentateuch (Ancient Israel and Its Literature 5; Atlanta: SBL Press, 2010).
What does this look like? In other legal codes (cf. Code of Hammurabi), we find the condition and punishment most often stated in flat conditionals: “If anyone finds X, then he must return it to Y.” For example, law 115 of the Code of Hammurabi states: “If [X] anyone have a claim for corn or money upon another and imprison him; if the prisoner die in prison a natural death, [Y] the case shall go no further.”
This “if P, then Q” legal formula permeates much of Mesopotamian omenology, but also their legal formulations.
The Hebrew laws address the matter of lost or overburdened animals in dramatic form. Bartor notes that neither an enemy’s nor a brother’s animals are to be left alone if wandering or suffering under a burden. However, the law is framed so that the audience becomes a character with a perspective and part of an unfolding drama:
If you see the ass of one who hates you lying under its burden, you shall refrain from leaving him with it, you shall help him to lift it up (Exod 23:4–5)
You shall not see your brother’s ox . . . and withhold your help from them; you shall take them back to your brother (Deut 22:1–4)
It’s not that those other legal codes did not deal with similar matters of justice, but that none of them narratized their legal codes as does the Hebrew Bible. Bartor claims that these animal relief codes are law, but they also construct a scene with a protagonist and perspective:
The description of events begins by noting the protagonist’s act of seeing. The animals, so it seems, had buckled . . . or gone astray in a far-off field, before this was noticed by the protagonists. However, the readers learn of the animals’ existence and of what befell them only from the moment they are seen through the protagonist’s eyes.7Bartor, Reading Law as Narrative, 165.
Why narrate legal codes, especially when Hebrew laws could merely parrot some of the surrounding culture’s legal codes that covered the same topics? Bartor believes that form fits function—the poetics of the law and narrative worked together to “impress meanings that their addressees would understand, internalize, and act upon. These ‘reading guidelines’ can be discovered only by means of a narrative reading.”8Bartor, Reading Law as Narrative, 184. Likewise, in the New Testament, Paul seems to similarly narratize his guidance about eating meat sacrificed to an idol (1 Cor 10:23–33). Paul could have simply given an “if x, then y” rule. Note how he frames his instruction: setting (invited dinner party), characters (hosts and guests), conflict (knowledge of meat used in pagan worship). In this instance, Paul even visualizes the hypothetical Corinthian’s perspective on the scene: “Eat whatever is set before you” (1 Cor 10:27).
Instructing through a narrative, the conflict demands a resolution to the drama, and doesn’t simply state “do this” or “don’t do that.” If/then laws merely cite instances. The one who visualizes the scene of Israel’s uniquely narratized laws emplots themselves in a thick and conflicted matrix that only they can bring to a climax and resolution.
Laws That Shape Narratives
Third, Hebrew laws shape our view of the narratives. Modern readers often finish the book of Genesis desperate for the narrator to declare what is morally good, bad, and ugly. If they were judged by our norms today, Abraham, Sarah, Lot’s daughters, Isaac, Rebekah, Jacob, Leah, Rachel, Judah, and Tamar all act in immoral (and criminal!) ways. The laws are not simple and direct, but point us back to ethically complex situations. Now, when we turn to those warnings in Leviticus 18, we can put names next to many of those prohibited sexual relationships:
(Lev 18:7) — Lot’s daughters with Lot (Gen 19:30–38)
(Lev 18:8) — Reuben with Bilhah (Gen 35:22)
(Lev 18:9) — Abraham with his sister Sarah (Gen 20:12)
(Lev 18:11) — Abraham with his sister Sarah (Gen 20:12)
(Lev 18:15) — Judah with Tamar (Gen 38)
(Lev 18:17) — Lot with his wife and daughters (Gen 19:30–38)
(Lev 18:18) — Jacob with Leah and Rachel (cf. Gen 29; Deut 21:15)
It’s difficult not to see this legal instruction in Leviticus as pointedly critiquing the behaviors in the Genesis narratives. Thus, the biblical laws not only sometimes appear in storified form but also engage other narratives in Scripture.
This article is part II of III.
End Notes
1. Joshua Berman, Inconsistency in the Torah: Ancient Literary Convention and the Limits of Source Criticism (New York: Oxford University Press, 2017), 116.
2. Jeremiah Unterman, Justice for All: How the Jewish Bible Revolutionized Ethics (Philadelphia: Jewish Publication Society, 2017), 21–30.
3. Jonathan P. Burnside, “Exodus and Asylum: Uncovering the Relationship between Biblical Law and Narrative,” Journal for the Study of the Old Testament 34, no. 3 (2010): 243–66.
4. Jonathan P. Burnside, God, Justice, and Society: Aspects of Law and Legality in the Bible (New York: Oxford University Press, 2010), 21.
5. For more on conceptions of children and stages of life in the Hebrew Bible and the ancient Near East, see: Shawn Flynn, Children in Ancient Israel: The Hebrew Bible and Mesopotamia in Comparative Perspective (New York: Oxford University Press, 2018).
6. Assnat Bartor, Reading Law as Narrative: A Study in the Casuistic Laws of the Pentateuch (Ancient Israel and Its Literature 5; Atlanta: SBL Press, 2010).
7. Bartor, Reading Law as Narrative, 165.
8. Bartor, Reading Law as Narrative, 184.
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