Was Biblical Law Nothing More Than Literature?

Israeli scholar Assnat Bartor is convinced that in ancient Israel, there was Scripture, and there were the laws that people lived by – and they weren't one and the same.

Smadar Reisfeld
Smadar Reisfeld
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“Moses Breaking the Tablets of the Law,” by Gustave Dore (1866).
Smadar Reisfeld
Smadar Reisfeld

One day, Assnat Bartor, then a criminal lawyer with a thriving practice, was traveling with one of her clients to obtain a deposition from someone who knew him and could attest to his character.

The accused seemed like a real scoundrel, the offense with which he was charged was quite despicable, and the drive to Jerusalem from Tel Aviv was long and wearying. The witness, an eminent professor of linguistics, welcomed them to his office, whose walls were lined with bookshelves crammed with thick tomes. The softly lit space had a pleasant and calming effect, so different than the bright lights and tumult of the courtrooms where Bartor was used to appearing. “This is what I want,” she thought to herself. “A quiet life of research, knowing that no one’s fate is dependent upon me.”

She closed down her law office, enrolled in the biblical studies department at Tel Aviv University, and began exploring so-called “biblical law” – such subjects as the laws of shmita, which include the commandment to let the land lie fallow every seventh year; or the law of the rebellious son (“ben sorrer”), whose parents are supposed to have him tried before the city elders, and who may be stoned by the people of the city; and much more.

To her great surprise, Dr. Bartor, now a lecturer at TAU, discovered that biblical law did not reflect the system of statutes that were part of ancient Israelite society. Instead, she found that, originally, it had no legal standing and was not enforced by anyone. In other words, “biblical law” wasn’t the law at all.

To understand this, we need first to define what is meant by “law” (hok, in Hebrew).

Bartor: “It’s a rule, a directive, that you are commanded to uphold, and if you do not uphold it, you will be subject to some kind of sanction.”

And you argue that what we call “biblical law” does not that fit that definition.

“This is an accepted argument. Essentially, it’s the prevailing argument today in biblical studies, and it echoes an older claim regarding what’s known as the Code of Hammurabi.”

Hammurabi’s Code wasn’t composed of laws either?

“Right. We all learned about the Code of Hammurabi in school, and that many of its ‘laws’ involved corporal punishment or the death penalty. We all know the principle of ‘an eye for an eye, a tooth for a tooth,’ and nearly every library of the ancient East held a copy of the Code of Hammurabi. And yet, not a single legal document – and thousands of such have been found concerning legal conflicts and proceedings – contains any reference to these laws.

“Scholars wondered how that could be. And why it is that, in documents describing conflicts that should have been covered by these laws, the sanction or legal arrangement that was actually arrived at has nothing to do with what’s written in the ‘law’? The discrepancy between what’s written in Hammurabi’s Code and the legal decisions revealed in documents that have been uncovered gave rise to this question.

“These laws were not common knowledge. Only members of the literary elite who knew how to read were familiar with them. The ordinary person, including the judge in some remote province, who wasn’t necessarily literate, hadn’t heard of them. Judges did not rule on the basis of these laws. They relied on another legal system, comprised of what we call unwritten ‘customary laws.’

“Researchers took all these theories and applied them to the biblical laws, many of which are very similar to the laws of Hammurabi and to other laws in the ancient East.”

‘A book of wisdom’

So if it’s not law – what is it?

“These are beautiful literary texts. There is a wide range of literary genres in the Bible. There are the stories of Creation and epics, psalmist literature and prophecies, allegories and lamentations. And there is also a genre of legal writing.”

Let’s say this is the case – soon we’ll get to the proof. What’s the point of such a literary genre? If the mythical genre was intended to provide an explanation for how the world was created, and the psalms give expression to man’s awe of nature and of God, what role does something that is written like a law, but is not, have?

“These texts had an educational role. In the Code of Hammurabi, one can find directives that are very similar to sayings that appear in the Book of Proverbs, and no one maintains that Proverbs is a book of laws. It’s a book of wisdom, which offers advice and instruction for worthy behavior. Words of wisdom and ethics can be garbed in all sorts of attire – in the literary garb typical of Proverbs, or in the garb of a biblical ‘law.’

“The use of the law genre lends this advice greater force and authority. The beautiful style attracts attention and induces the reader to listen to the sayings and internalize the message. But there’s a difference between didactic sayings, which are meant to educate, and binding law.”

What evidence is there to back up the argument that these are not meant as laws in the strict legal sense?

“There are a number of things. Each piece on its own is not incontrovertible proof, but taken together, the accumulation of evidence presents a very strong argument. For example, one can make the argument that biblical law cannot serve as a code of statutes, because too much is missing. A code of law has to cover all areas of life, or at least the most vital one, if it is to be used to run the community. But biblical law does not do this. It does not contain marriage law or contract law, so it is not possible to conduct a society’s life on the basis of this text.

“As if to underscore this point, on top of all the things that are missing, there are a lot of references to very esoteric topics such as the commandment to assist an animal that is struggling under its load or has lost its way. Is this so all-important? There is also a law concerning a woman who grabs the private parts of a man who is fighting with her husband. With so few laws in the biblical canon, how did this one end up in the legal pantheon?

“Further evidence that these are not meant to be regarded as actual laws is the overlap that’s found in them. For instance, there are three parallel laws concerning a slave, and they are all different. If all of them are the word of the living God and therefore binding, which law is the one that has to be followed? Are you supposed to free your slave after six years, or in the jubilee year? With or without a gift? Alone, or together with his wife and children? If this was really a book of rules, someone would have had to say something like: The later version of the law is the binding one. This is how it works it modern law, at least.

“Literary texts, however, can appear simultaneously. From a literary standpoint, there’s no problem in presenting two stories of Creation side by side, because this doesn’t affect anyone’s life. But when you need to know how to act and when to liberate the slave, you can’t have two conflicting laws, certainly not three.”

Maybe it’s due to flawed editing?

“I don’t think so. It’s a literary convention. In a later period, when the sages created the halakha, which is the real Jewish law, they worked hard. They used manipulations, and came up with varied interpretations to try to reconcile the different versions. But the editors of the Bible didn’t have a problem with there being two stories of Creation or three laws of slavery.”

That’s a generous view that ascribes more openness to the biblical editors than to most modern-day consumers of the Bible.

“The attempt to harmonize and unify the different versions derives from a relatively modern attitude that says we cannot place two conflicting things side by side. But the biblical editor was pleased by all of them.”

A dramatic story

Okay, two different Creation stories may be creative and intriguing, but a polyphony of regulations – one that says a slave is freed after six years, while another says this only happens in the jubilee year – is not riveting in the literary sense.

“Actually, I’d say that it is. If you take a literary approach to looking at the ‘laws,’ you can see how amazing they are and how by sophisticated artistic means they build a dramatic story that has tension and characters. Many of the literary conventions we’re familiar with from biblical stories also appear in this genre, and their purpose is to bring the text to life, to give it color and sound and rhythm. What you get doesn’t sound like dry law. You could say that these are very ‘wet’ laws.”

Give me an example of a “wet” law.

“The law of the ‘ir nidahat’ [an idolatrous city that is to be destroyed], for example – collective punishment of an Israelite city whose residents were led astray into idol worship. Look at the brutal wording: ‘thou shalt surely smite the inhabitants of that city with the edge of the sword, destroying it utterly, and all that is therein and the cattle thereof, with the edge of the sword. And thou shalt gather all the spoil of it into the midst of the broad place thereof, and shall burn with fire the city, and all the spoil thereof every whit, unto the Lord thy God; and it shall be a heap for ever; it shall not be built again’ [Deuteronomy 13:15-16].”

That does sound like the rhetoric of an orator whipping up his audience.

“It’s tremendously powerful. You can picture the flames lapping at the houses, the cries of the people being murdered and the howls of the animals being slaughtered. The music of the words, the repetition of ‘hakeh hakeh’ [‘thou shall surely smite’] and of the phrase ‘with the edge of the sword’ give the text a warlike rhythm and create great drama. You also have an opposing parallel here – ‘it shall be a heap for ever, it shall not be built again.’ The same idea – of eternal destruction – expressed in two ways, one positive and one negative. In a strict legal sense, one of the two ways is unnecessary, but from a literary point of view, the added verbiage is what makes the scene so palpable and shocking.”

Give me another example.

“Take the laws of slavery. Dry, modern-day law wouldn’t say, ‘Six years he shall work and on the seventh he shall go free.’ It would just say: ‘In the seventh year he shall go free.’ But because it’s a literary text, the biblical ‘law’ uses a common literary pattern called the ‘correspondence of the rising number.’ The numbers 6 and 7 appear together the way the numbers 3 and 4 appear together in the famous verse in Amos – ‘For three transgressions of Damascus, yea, for four, I will not reverse it.’

“The dualism emphasizes the duration of the period, and this law is trying to get you, as a sensitive reader, to understand what six years of slavery means. And in tandem with the repetitiveness, as in the biblical story, one can also see the art of condensation going on here. The ‘slave law’ tries to cram an entire biography into just a few sentences, and it gives us just minimal tastes of the slave’s life so that we will fill in the gaps between them.

“For example, it sometimes happens that the slave comes to work for the master when he is already married, and other times it’s the master who gives him his wife, and in that case – according to the most ancient law of the three – she and the children she has also belong to the master.”

Shmita in Canaan

The examples you cite certainly show how poetic the biblical law can be. But I’m still not convinced that this style means that these are just literary texts, rather than statutes with legal standing. Here’s a poetic excerpt from one of [retired Supreme Court] Justice Mishael Cheshin’s rulings: “We must detach ourselves somewhat from crawling about in the labyrinth of the directives of Section 7(6) of the Compensation Law and lift ourselves upward, higher and higher The fish in water sees only that which surrounds him while the eagle in the sky knows whence the river comes and where it is going. And we must know how to swim like a fish but also to see like an eagle.” Despite the poetry of the text, it’s absolutely clear that it pertains to the world of the court and the law. Could the laws of the biblical period been written in the same way?

“The law that was used in daily life was not a written law,” Bartor explains. “It was ‘customary law’ that was handed down orally. There were no law books. But when you examine legal documents or protocols of legal proceedings from the period, you see that they write in a dry legal style, similar to what we’re familiar with today. In any case, the style by itself is not absolute proof of the non-legal character of the biblical law. But it joins all the rest of the evidence I cited, and all of it together supports the theory that the biblical law is not judicial law.

“Another thing: There is a series of impractical, utopian ‘laws’ that no one ever imagined lending legal force to. The shmita law, for instance. It’s obvious that this is an ideological manifest that propounds values of equality and harmony, among men and between man and the world. Do you really think that in an arid land like Canaan it’s possible to stop working the land and to expect the crops to just grow on their own? Is there any economic logic to wiping out all debts and freeing all the slaves? It’s not realistic.”

So you’re saying that in biblical times, shmita law was not implemented?

“Probably not, because it wasn’t actually a law. Note that in the ‘law,’ the words ‘Sabbath’ and ‘sabbatical’ recur, in order to stir up recollections of God’s work in Creation. The law seeks to emulate God’s action out of a utopian ideological view.”

So when did shmita start to be considered binding law?

“From the time the halakha was created.”

So, the transformation of literary biblical law into statutes with legal force occurred in the time of the Jewish sages?

“The change began before that, in the fifth century B.C.E., in the time of Ezra and Nehemia. In the Book of Nehemia it says that the Persian king granted the Jewish province religious and legal autonomy. He looked at the ‘biblical law’ and said: ‘You have your own laws, the laws of the Torah, and now we will make them the laws of the king – i.e., binding laws that come with predetermined penalties.’ It was this act of recognition on the part of the Persian king that gave the official-legal seal of approval to these literary texts.

“The sages come into the picture at a later date, in the third century B.C.E. They noticed the laconic nature of biblical law, the dual and conflicting regulations, and all the other problems we mentioned, and they realized that this was not a system of laws that one could live by. And so they began to establish the halakha.”

Can you cite an example of a literary biblical law that the sages gave legal force to as part of the halakha?

“The halakhic enterprise was only officially based upon biblical law because only it, as the word of the living God, had binding status. But in reality, the sages did not really adopt biblical law. They did not acknowledge this, of course, but by means of their wide-ranging interpretations, they composed an independent body of work that is very far from the original."

It seems to this writer as if these things could have served as the basis for the joke about Moses bugging God at Mount Sinai. God says: "You shall not cook a kid in its mother’s milk," and Moses replies: "Okay, so we have to keep meat and milk separate." Then God says, "I only said not to cook a kid in its mother’s milk," and Moses says, "I see, so we have to wait six hours between eating meat and milk." God repeats: "You shall not cook a kid in its mother’s milk!" And Moses says: "Okay, so separate sinks too. Got it." Exasperated, God says: "Fine, just do whatever you want.”

In other words, the connection between biblical law and halakha is rather loose. But, if we’ve become convinced that biblical law was a literary genre, why is there no book dedicated to this genre – like Psalms or Lamentations, or the Later Prophets, where you find prophetic orations? Why are the ‘laws’ spread out over four of the five books of the Pentateuch?

“The biblical editor had very interesting reasons for doing so. It’s commonly thought that the Bible was completed, and maybe also the final editing undertaken, after the destruction of the Second Temple, an event that raised very tough questions about God’s conduct. After taking the Israelites out of Egypt, forging a covenant with them and saving them from their enemies time and time again – now he brings such destruction upon them? Did God enable the Israelites’ enemies to conquer them because he’d become weak? Tired out? Did he change his mind? What sort of God is this, that cannot be relied upon? This had to be justified.

“So the editor does a sophisticated job of theodicy – trying to prove God’s goodness and omnipotence in the face of evil. He weaves the biblical law into the framing story about the Exodus from Egypt, the conquest of the land and so on, inserts the laws at different junctures into a plot that is filled with motifs of rebellion and disobedience, and thus gives the impression that the laws are part of a contractual relationship, part of the conditions of the covenant between God and the people.

“One party to the contract, God, does kindnesses to the Israelites, and the recipients are in debt to the benefactor. They must repay him by upholding the conditions of the covenant, i.e., the laws. If they uphold them – they will live in peace; if they violate them – they will be punished. In this context, when the reader reads the whole thing – the stories in which the laws have been inserted, and the laws themselves – he says to himself: This is not going to end well.”

Shmita in the first act must lead to exile in the third act.

“Exactly. That is, you can’t expect anything other than what ultimately happened.”

So to sum up, the inclusion of the biblical law in the Torah was a literary as well as a theological move.

“Yes. On the one hand, they had a didactic role – to educate you, to show you the desired way and to make you internalize the values of justice and morals. On the other hand, they played a role that is not dependent on their specific content but rather on their being upheld. As long as you keep the laws, you are protected. Otherwise”

Assnat Bartor.Credit: Tomer Appelbaum