In this podcast, I introduce a short series that I’m doing on how to interpret the Old Testament Law. I’m trying to find a way to interpret the law that is hermetically consistent and historically accurate.
Links and Sources
Margaret Barber Crosby, The Making of a German Constitution: A Slow Revolution (New York: Berg, 2008), 110.
Bryan A. Garner, ed., “Common Law,” Black’s Law Dictionary (St. Paul, MN: West, 2009).
Patrick Devlin, The Judge (New York: Oxford University Press, 1979), 177. W. Morrow reflects this definition in his application of common law to Biblical law: “In common law, the application of law by judges and other legal decision makers is guided by a knowledge of legal precedents and broad principles rather than strictly by legislation. The legal principles relevant to ancient Israel were probably not embodied exclusively in collections of instructions. They were also contained in stories and conveyed through oral tradition.” William S. Morrow, An Introduction to Biblical Law (Grand Rapids: Eerdmans, 2017), 35.
Raymond Westbrook, “Biblical and Cuneiform Law Codes,” Revue Biblique (1946-) 92, no. 2 (1985): 247–264; Raymond Westbrook, “The Character of Ancient Near Eastern Law,” in A History of Ancient Near Eastern Law (Boston: Brill, 2003).
Berman, “The History of Legal Theory,” 21.
Otto, “Ersetzen Oder Ergänzen,” 248–57.
Joshua Berman, “The Legal Blend in Biblical Narrative (Joshua 20:1–9, Judges 6:25–31, 1 Samuel 15:2, 28:3–25, 2 Kings 4:1–7, Jeremiah 34:12–17, Nehemiah 5:1–12),” Journal of Biblical Literature 134, no. 1 (2015): 105–125.
Cover Photo: Grimm Brothers Monument at Hanau (Germany) Photographer: user:Dr. Meierhofer Date: 14.08.2006
|Introduction||saQi||1 Quest’s End||Quest’s End||Electronic, Downtempo, Sound Art|
|Story||M.Nomized And Midnight Moodswings||The Elated (mystical mix)||The Surrogate Piano|
|Story||Pictures of the Floating World||Horses||Horses||Ambient, Piano, Instrumental|
|Grimm||MIT Symphony Orchestra||La Traviata, Brindisi (Verdi)||An Opera Evening||Classical, Opera|
|Statutory and Common Law||Chad Crouch||Lemonade||Electric Piano Duets||Electronic, Soundtrack, Instrumental|
|Here is the point of all this||Lobo Loco||Old Dancehouse – Long (ID 1186)||Good Old Organ Ice||Jazz, Old-Time/Historic, Soundtrack|
|Scholarship has it wrong||David Hilowitz||Moment of Truth (Violin version)||Moment of Truth (Single)||Soundtrack, Contemporary Classical, Instrumental|
|Theology has it wrong||David Hilowitz||Moment of Truth (Violin version)||Moment of Truth (Single)||Soundtrack, Contemporary Classical, Instrumental|
Common Law and Biblical Codes
A lively debate has taken place over nature of ANE law. One early proponent of common law was B. Landsberger. He proposed that before Hammurabi, judges made legal decisions based on unwritten norms. Further, he added that even after the publication of Hammurabi’s Code (HC), it was never cited in judicial cases and therefore was an expression of common law. F. R. Kraus proposed that the law code was simply a scribal exercise. Soon after Kraus, J. J. Finkelstien argued that the law code was not a list of positive law but a literary creation of a Royal Apologia. In response to both of these views, R. Westbrook argued that the law codes were written to be “references works for consultation by judges” and not positive law. S. Démare-Lafont pushed back against Westbrook arguing that the content of the HC is statutory law. J. Bottéro noted the incomplete nature of the laws and contended that the majority of the laws in the ANE were unformulated. Against Bottéro, Greengus argues that the law codes were a formulated in a precise “oral legal tradition composed of many specific cases.” While the debate continues as to the nature of the Hammurabi Code, the distinction between common law and statutory law found its way into the discussion of the Hebrew Bible.
The influence of this discussion found its way into Biblical studies. Westbrook argued that the law codes in the Hebrew Bible and the ANE law codes were an interdependent system following an international standard of common law. The law codes were a collection of legal precedents that served as “reference works for the royal judges” B. Jackson observed that not much evidence exists for pre-exilic adjudication being based on written law. Rather, “the judges told to ‘pursue justice [Dt 16:18],’ without any suggestion that justice consists following the rules of a written law book.” He notes along with P. Heger that the crucial factor which differentiates the Biblical law codes from other ANE law codes is their divine source. Other ANE nations received their law codes from the king, while Israel received its from God. While the evidence favors a common-law interpretation of the Pentateuch, B. Wells rightly observed that there was probably not one system in place.
J. Berman continued the argument that the legal system of Israel was common law. He observes several aspects of common law traditions that affect the judicial process in Israel. First, the judges make legal decisions based on the spirit of the community (volkgeist). The reference point for the judges was not a written set of laws, but the gradual “distillation and continual restatement of legal doctrine through the decision of the courts.”  Second, the role of previous legal decisions were records of non-binding precedent. The written record of these decisions “formed a system of reasoning” but not an absolute code. In this system, the multiple legal codes of the Torah do not conflict or supersede each other. Rather, they serve a complementary role to each other. Third, the legal codes changed with changing circumstances. For example, the Covenant Code and the Deuteronomic Code differ because the one code is set at the beginning of the wanderings while the other at the end. Fourth, since volkgeist was important, judges could draw from various folk elements to make their decisions. For example, the Pentateuch in both its narrative and “legal” portions all formed resources for the judges.
 B. Landsberger, “Die Babylonischen Termini Für Gesetz Und Recht,” in Symbolae Ad Iura Orientis Antiqui Pertinentes Paulo Koschaker Dedicatae, ed. Paul Koschaker et al. (Leiden: Brill, 1939), 220.
 Ibid., 221–2.
 F. R. Kraus, “Ein Zentrales Problem Des Altmesopotamischen Rechtes: Was Ist Der Codex Hammu-Rabi?,” Genava: revue d’histoire de l’art et d’archéologie 8 (1960): 289–90.
 J. J. Finkelstein, “Ammiṣaduqa’s Edict and the Babylonian ‘Law Codes,’” Journal of Cuneiform Studies 15, no. 3 (1961): 104.
 Raymond Westbrook, “Biblical and Cuneiform Law Codes,” Revue Biblique (1946-) 92, no. 2 (1985): 254; see also Raymond Westbrook, “The Nature and Origins of the Twelve Tables,” Zeitschrift der Savigny-Stiftung für Rechtsgeschichte (Romanistische Abteilung) 105 (1988): 74–121; Raymond Westbrook, “The Character of Ancient Near Eastern Law,” in A History of Ancient Near Eastern Law (Boston: Brill, 2003). Other researchers, such as Preiser, Klíma, and Szlechter, also maintain that the Hammurabi Code is not a literary work but an actual law code. Wolfgang Preiser, “Zur rechtlichen Natur der altorientalischen ‘Gesetze,’” in Festschrift für Karl Engisch zum 70. Geburtstag, ed. Paul Bockelmann and Karl Engisch (Frankfurt: V. Klostermann, 1969); Joseph Klíma, “Les Données Juridiques Dans Les Prologues et Épilogues Des Lois Mésopotamiennes,” Revue historique de droit français et étranger (1922-) 53, no. 4 (1975): 575–95; Émile Szlechter, “La ‘Loi’ Dans La Mésopotamie Ancienne,” Revue Internationale des Droits de l’Antiquité 12 (1965): 55–78; See summary in Johannes Renger, “Hammurapis Stele „König Der Gerechtigkeit“: Zur Frage von Recht Und Gesetz in Der Altbabylonischen Zeit,” Die Welt des Orients 8, no. 2 (1976): 228–235.
 Sophie Démare-Lafont, “From the Banks of the Seine to the Bay of Chesapeake: Crossglances on Ancient Near Eastern Law,” Maarav 18, no. 1–2 (2011): 58.
 Jean Bottéro, “Le « Code » De Ḫammu-Rabi,” Annali della Scuola Normale Superiore di Pisa. Classe di Lettere e Filosofia 12, no. 2 (1982): 409–44.
 Samuel Greengus, “Some Issues Relating to the Comparability of Laws and the Coherence of the Legal Tradition,” in Theory and Method in Biblical and Cuneiform Law: Revision, Interpolation and Development, ed. Bernard M. Levinson (Sheffield, England: Sheffield Academic, 1994), 85.
 Westbrook, “Biblical and Cuneiform Law Codes,” 257. Greenberg and Otto contest this viewpoint. M. Greenberg interpreted the relationship between the ANE codes and the Hebrew Bible as based on a common value system. Eckhart Otto argued that the Israelite laws were developed independently from the ANE laws in the pre-monarchy period. But during the monarchy, Israel imported several of the ANE laws. Moshe Greenberg, “Some Postulates of Biblical Criminal Law,” in Yehezkel Kaufmann Jubilee Volume; Studies in Bible and Jewish Religion (Jerusalem, 1960), 5–28; Eckart Otto, “Ersetzen Oder Ergänzen von Gesetzen in Der Rechtshermeneutik Des Pentateuchs,” in Die Tora: Studien Zum Pentateuch, vol. 9, Beihefte Zur Zeitschrift Fur Altorientalische Und Biblische Rechtsgeschichte (Wiesbaden: Otto Harrassowitz, 2009), 159.
 Westbrook, “Biblical and Cuneiform Law Codes,” 258; cf. Westbrook, “The Character of Ancient Near Eastern Law,” 21.
 Bernard S. Jackson, “Models in Legal History: The Case of Biblical Law,” Journal of Law and Religion 18, no. 1 (2002): 15–6.
 Paul Heger, “Source of Law in the Biblical and Mesopotamian Law Collections,” Biblica 86, no. 3 (2005): 342; Jackson, “Models in Legal History: The Case of Biblical Law,” 15.
 Wells favors the common law system or as he labels the Pentateuch: “Legally Descriptive Treaties.” Bruce Wells, “What Is Biblical Law? A Look at Pentateuchal Rules and Near Eastern Practice,” The Catholic Biblical Quarterly 70, no. 2 (2008): 242–3.
 Joshua Berman, “The History of Legal Theory and the Study of Biblical Law,” The Catholic Biblical Quarterly 76, no. 1 (2014): 19–39; Joshua Berman, Inconsistency in the Torah: Ancient Literary Convention and the Limits of Source Criticism (New York: Oxford University Press, 2017), 109.
 Berman, “The History of Legal Theory,” 21.
 Ibid., 22.
 Ibid., 38; Otto, “Ersetzen Oder Ergänzen,” 248–57.
 Berman, “The History of Legal Theory,” 31.
 Ibid., 26–7; Joshua Berman, “The Legal Blend in Biblical Narrative (Joshua 20:1–9, Judges 6:25–31, 1 Samuel 15:2, 28:3–25, 2 Kings 4:1–7, Jeremiah 34:12–17, Nehemiah 5:1–12),” Journal of Biblical Literature 134, no. 1 (2015): 105–125.