Journal of Hebrew Scriptures - Volume 11 (2011) - Review

This informative introduction to biblical law is one of the final contributions of Raymond Westbrook,[1] in a significant and influential career devoted to the study of Near Eastern and biblical Law.[2] Bruce Wells, his capable former student, helped him finish the work and bring it to publication. The work reflects what I call the juridical or perhaps better jurisprudential-phenomenological approach to the study of biblical and Near Eastern law. The book itself says that its “focus…is…on law as understood by jurists,” which is explained as “rules that regulate relationships between humans who are the members of a society in the conduct of their everyday lives, protecting their economic, social, corporal, and psychological interests” and involves rules, rights, and duties “that can be enforced in a court of law” (p. 1). Its chapters focus for the most part on what we might call secular law and are determined by phenomenological categories that are derived from those of modern academic jurisprudence. After an introduction to method and the sources for the study of law, the book presents its main chapters on Litigation, Status and Family, Crimes and Delicts, Property and Inheritance, and finally Contracts. Each of the chapters on the legal categories is further subdivided topically.[3] The approach, while generally critical in its orientation, tends to be interested in the meaning and function of law as opposed to the literary or redactional development of complex legal texts or the inter-textual hermeneutical relationship of such texts. The literary or redactional question is not important because the authors view the Bible only as a tool for study, not the object of study (p. 11). And the question of intertextual relationships is secondary to the goals of the book's study and in any case is described as a questionable enterprise (pp. 129–133).

The book's six main chapters, plus the introduction and conclusion, provide a basic syllabus for an undergraduate course on biblical law. The individual chapters also contain further resources for students to pursue (e.g., for research papers), and study questions highlight what students should learn from each chapter. It will be clear to anyone who considers using this book for a course that it will need supplementation. First of all, it is brief, about 150 pages. This leaves plenty of room for readings from primary texts, both biblical and Near Eastern. These can include selected biblical texts from among those mentioned in a given chapter. The book's brief treatment of these texts can serve as starting points for detailed discussion. In addition, instructors would want to assign readings from the scholarly literature on particular texts and broad issues. Some of these may be drawn from the “Further Readings” sections at the end of the chapters.

More broadly, supplementation may include discussion and readings about directions not taken and questions not fully addressed in the book. One subject that I would expand for students is the question of the nature of the sources for the study of law, including what we can know about actual legal practice in ancient Israel from the Bible. The book recognizes the problem at various points and provides the following advice to its readers up front:

We cannot be sure of the extent to which the laws set out in the Bible were actually put into practice during the Iron Age—the time of ancient Israel and Judah. As we shall see, some of them may have been purely utopian; some were rules of practices transfigured by ideology; and others, although pragmatic in content, were most probably the product of academic circles, that is groups of scribes engaged in a theoretical endeavor. Nonetheless, the laws in the Bible represent in many instances what people at the time considered the law to be, and even if not always put into practice, they reveal the underlying processes of juridical thought that were prevalent in the society (p. 3).

The book justifies a general assumption that the biblical text more or less represents everyday practice by the observation that biblical and non-biblical legal descriptions and customs overlap or coincide at various points. (It discusses some concrete examples of this in the chapter on sources, pp. 23–25.) This correspondence in custom, Westbrook and Wells argue, cannot be attributed, on the one hand, to coincidence or, on the other, to the copying of legal ideas from foreign sources. It must rather be an indication that broadly shared Near Eastern legal customs have become part of the native practice in the respective communities. On this basis the authors suppose that the texts “reflect many aspects of their own society's everyday law” (p. 4).

It is difficult to argue with this, what turns out to be, loose description—surely the biblical texts reflect aspects of social and cultural reality. The argument is in regard to degree, and how much the texts filter, augment, revise, or otherwise alter everyday practice. This is not a negligible matter. I would want to make my students intimately aware of the difficulty of accessing real practice and have them struggle with this problem. I would stress that while it is important to understand the details of legal phenomenology and how to explicate the arcane logic of ancient laws, it is equally important to understand how the texts came to be, how the biblical writers plied and used legal concepts for purposes beyond representation of data about everyday life, and how the contexts of the sources reflect native conceptualization of legal ideas that might differ from modern jurisprudence.

Let me illustrate the type of questions that need to be considered when looking at the two primary genres used for the study of biblical law, namely, law collections and narrative.

As for biblical law collections, a number of considerations show that they were much more than repositories of traditional practice or prescriptions for future performance. Several of the laws are utopian or impracticable in character, especially in the Priestly-Holiness Legislation and Deuteronomy. I am thinking here, for example, of the complex sabbath-year and jubilee economic system in Leviticus 25 or the stern laws for the execution of apostates in Deuteronomy 13. One legal phenomenon that the book admits difficulty in verifying as a real practice is refuge cities for homicide, as prescribed in Deuteronomy 19 and Numbers 35. This question arises mainly because of the lack of attestation of this phenomenon in the ancient Near East outside the Bible (p. 75). Nevertheless, the book hesitates to definitively view refuge cities as a utopian feature.

Another indication of the abstract nature of biblical legislation is that the various successive laws collections were created in significant part by using and revising sources. The book resists this conclusion and approach somewhat in its final chapter. But the literary pedigree of Pentateuchal legal sources is becoming increasing clear in recent research. Deuteronomy for example uses and transforms law (or obligations) from the Covenant Code, Neo-Assyrian treaty, proto-priestly dietary regulation, and probably a body of laws on women and family (following the scholarship by Otto and Rofé).[4] This accounts for the majority of Deuteronomy's laws; very little is left for analysis as direct encoding of actual practice. The Holiness Legislation for its part builds on and expands Priestly Legislation and also revises law from the Covenant Code and Deuteronomy. I have recently argued that the Covenant Code itself accords perfectly with this scribal phenomenology in being a revision for the most part of laws from Hammurabi's collection.[5] While some dispute this, including the book's authors, it would be remarkable if the Covenant Code is a report of actual practice while its legislative offspring develop differently, from use of sources.[6]

A third consideration is that the Pentateuchal collections were apparently created in view of a pseudoarchaeographic context, as revelations to Moses in the wilderness when the nation was in embryo. Deuteronomy was written as a speech of Moses. The Priestly Legislation and Holiness Legislation were written as a series of revelations at Sinai and in the wilderness, and the laws in many places include elements that contextualize practice in the wilderness and in connection with the architecture and geography of the portable sanctuary. The Covenant Code was written, I have argued, in a context of a story of exodus and revelation at “the Mountain of God” at Horeb. While no doubt sources of various types were used to create these legal texts, their internal and external pseudoarchaeographic elements cannot simply be deleted to render laws that can be understood as reflecting actual practice. The narrative fiction, I aver, led the writers to alter to some degree whatever customs they may have picked up from practice or from sources used to fit the pseudoarchaeographic context.

A final point with regard to law collections is that they appear to be ideological in promoting purposes beyond the prescription of law. This may best be seen or imagined for Deuteronomy, which a number of scholars have long tied to the reforms of Josiah. Though this may be disputed, it is relatively clear that Deuteronomy is otherwise ideological as it takes up Assyrian treaty and turns obligations of loyalty to the foreign king into obligations toward Yahweh. The Priestly-Holiness Writings appear to react to the Neo-Babylonian threat and destruction of the temple. The Covenant Code may react to Neo-Assyrian hegemony. While there may be argument about some of these points, it is reasonable to assume that the collections were written with motives that exceed the mere prescription of law. They seek to say something about Judean national identity in an environment of imperial domination. As collective wholes they reinforce the viability of the national group. They are iconic, not simply legislative.[7]

Law customs portrayed in biblical narrative may similarly go beyond a reflection of everyday practice. In the mid-1990s I wrote a study of ritual in the Ugaritic story of Aqhat that in part struggled with the disparity found between ritual described in story and ritual described or prescribed in actual Ugaritic ritual texts.[8] I suggested that part of the reason was that ritual description had been adapted to serve the particular purposes of narrative formulation, for example, to assist in plot development and to otherwise aid in the portrayal of characters. A similar tendency and phenomenology can be seen as operating in ritual descriptions in biblical narrative.[9] The story of the near sacrifice of Isaac in Genesis 22, for example, likely does not reflect actual practice, but is an idealized account that uses the motif of sacrifice to enhance the picture of Abraham's piety as well as emphasize how demanding (and perhaps how merciful) Israel's deity could be. The estimate of ritual in narrative is directly connected to consideration of law in narrative, inasmuch as ritual is often an object of legislation alongside the types of law that are of primary interest to Westbrook and Wells. If ritual has been adapted to serve the story of Genesis, for example, then we can imagine that law has been adapted to fit the context of Genesis. In other words, description of Abraham's purchase of the cave of Machpelah in the next chapter of Genesis (an object of insightful analysis by Westbrook in an early article[10]) may only approximate actual legal practice.

These several considerations indicate that a study of law in the Bible has to be continuously aware of the nature of the sources. Part of the study requires examining what the passage is trying to do in its context and to investigate the larger goals of the literature. This is not entirely different from the critical stance that historians take in using biblical texts for a reconstruction of ancient Israelite history. True, it may be that many of the biblical texts that represent laws and legal ideas are closer to reality than the historical events represented in many biblical texts. At the same time the study of law should not facilely assume that the texts unswervingly mediate data about concrete legal practice. The focus of study may need to be shifted. Instead of trying to describe practices or regarding the description of practice to be the goal of study, we may need to focus more on legal ideas, and shift our sociological or institutional eye away from society at large and focus on scribes and scribal schools, and their goals and interests.

I would supplement the book's basic outline in two other ways, related to the matters just raised. This would include study of law not included in the main purview of the book, i.e., apodictic law and ritual-religious law. Both of these types take a back seat in view of the book's goal to chart laws that concern (primarily) the relations of humans to humans and that clearly address the basic socio-economic interests (matters of body and property). For example, the book minimalizes the Decalogue, saying that its various versions “are not…laws in any meaningful sense. They contain no sanctions, and there is no hint that they ever played a role in the Israelite courts. They merely state commands or prohibitions…” (p. 13). The fact of the matter is that the Bible's major law collections contain both casuistic and apodictic genres side by side. While consideration would have to be given to how these two types came to be associable with one another (and it is not always a simple matter of concluding that the apodictic laws were an addition—theological icing on the cake—to more concrete and practicable casuistic laws), the texts as we have them combine the two and this tells us something about how apodictic law was perceived as law.

Similarly, ritual and religious law is interwoven or included in the various law collections. Some of this is, in fact, formulated casuistically and at times with penalties that could be imposed by a human tribunal. The book does treat offenses against deity in the Crimes and Delicts chapter, and includes discussion of apostasy, blasphemy, the Sabbath, and sexual practices. But one may want to give some consideration to laws of the cultic realm, such as sacrifice, festivals, purity and holiness, sacrilege, regulations for the priesthood, and temple-building “codes,” as these manifest differently in the different law collections (and all the law collections, including the Covenant Code, contain ritual and religious regulations). Even though the descriptions of ritual and religious regulations in the various biblical law texts are as idealistic as other prescription they contain, the temple or sanctuary was a fundamental institution of human interaction and of the economy.

Finally, I would try to put some emphasis on charting the history of legal ideas. The critique that I presented earlier about law collections and narrative indicates that we cannot be so sanguine about charting actual practice, such as a history of sanctuary asylum or the law of talion. We can nevertheless talk about the development of legal ideas. While the book does contain some reference to development of certain practices, it would be of benefit to students in a course on biblical and Near Eastern law to explore topics and texts where there is a clear development of ideas as manifested in textual revision, such as the slave laws or homicide laws in the Covenant Code, Deuteronomy, and Holiness Legislation, and to show the hermeneutical innovations, as Bernard Levinson's work models.[11] Attention to ritual law would provide added examples of such development for consideration, such as festival laws, priesthood regulations, or the tithe. Part of the study of historical development can incorporate examination of how biblical texts used non-native sources or ideas, for example, Deuteronomy's conversion of loyalty obligations from the Vassal Treaties of Esarhaddon into laws against apostasy.

One of the values of the book's jurisprudential-phenomenological approach is that it provides a ready made template for students and interested readers who come to biblical law from outside the discipline of biblical studies but with some training or understanding of the study of modern law. My own biblical law course is cross-listed at Brandeis University with the legal studies program which helps students prepare for legal careers. I can see how this book would organize the basic data for these students, even as they and I might go off in more abstract directions as I have suggested here.

David P. Wright, Brandeis University