Non-Statutory Law and Apparent Contradiction
How could the ancients see texts containing contradictions and believe they came from an infallible God? Unfortunately, part of the explanation for this must wait for a later book in this series which will examine the concepts of historicity. Here we will only focus on contradictions of law, and how the ancients viewed them, and whether some of them were even contradictions in reality. We’ll also see how modern scholars come to many conflicting conclusions based on an anachronistic imposition of modern, statutory law on the ancient texts. Perhaps even more importantly, we’re going to see how the ancients adapted the laws of the Torah even while revering it.
A Cut and Paste Torah?
I’ve mentioned source critics and their tendency to sometimes view even a single verse coming from two different original sources that were spliced together, almost as if some ancient redactor used a penknife and glue to combine sacred texts into new ones. Sometimes I’ve critiqued their methods; other times, as in the section on seams and doublets in the text, I’ve agreed with some of their evidence and conclusions. In later books of this series, I plan to critique the critics even more, when we come to such topics as historicity, and the incredibly rich tapestries of literary motifs that the Bible employs. But here we will focus on one particular mistake of the source critics: that of viewing ancient law as statutory.
Real Contradictions?
As mentioned above, so far we’ve been analyzing ancient laws mainly through a Western view of law. (See previous articles, or check out my book here.) But some of these contradictions actually go away when we compare other ancient laws collections, and ancient ways of writing.
We’ve seen how the laws regarding slaves differ between books of the Torah, and how scholars are quite divided about which came first. Some scholars see Leviticus 25 as complimentary to Exodus 21. In other words, it reveres the law in Exodus, and adding the Jubilee release would not have been viewed as any sort of contradiction.[1] However, other scholars argue that for Leviticus to add such details is incompatible with Exodus.[2] In order to take such a position, they must view the law as statutory, i.e., a strict construction. This argument assumes that Exodus is comprehensive, like a modern-day statutory code, precluding any addition to what is written in it. As we’ve seen, this simply is not the way the ancients viewed the law.
One of the main themes of Leviticus 25 is the redemption of Israelites, whether to their land, or from debt, or even from servitude. The modern mind can be so fixated on strict interpretation of a law collection that it fails to take a verse like 35 in context of what follows it. I have often heard it taught that this verse bans enslavement of a fellow Israelite. If it does, it appears to directly contradict Exodus 21 and Deuteronomy 15, which are rules about how to treat your Hebrew slave! However, what Leviticus 25:35 actually says should be understood by all that follows it. Yes, an Israelite who falls on hard times will have to serve for that debt. The Levitical law is more concerned about how the man is treated while he serves. Even though he is in bondage to another, he must be treated as if he were a hired laborer. It is a banning of the way slaves were conventionally treated, not of actual servitude.
Verse 40 also is sometimes interpreted by moderns to say that the Israelite servant is to be paid, which would seem to contradict Exodus 21 (no payment to be made) and Deuteronomy 15 (only a gift upon release). But if we take verse 40 to be saying what I’ve summarized in the above paragraph, Leviticus 25’s point is not about payment, but treatment.
Some scholars have argued that, since Leviticus 25 does not mention the seventh-year release, it therefore rejects it.[3] To do so, one must wonder at how Leviticus can show so much concern for the poor, and yet make some people wait most of their life to be released, while Deuteronomy 15 only requires 7 years. Recall that Leviticus’ jubilee only came around every 50 years, a lifetime for many peasants in the ancient world. However, much of Leviticus 25’s focus is on the year of Jubilee, not laws of debt bondage per se. It does not attempt to give exhaustive laws for the latter. To argue that it must is an imposition of modern notions of how a statutory code must be exhaustive.
Barry Eichler makes an excellent comparison to cognate laws of the ancient Near East:[4] in the Laws of Eshnunna, a man who has been missing is allowed to retake his wife who had remarried in his absence; in the laws of Hammurabi, which came about a century and a half later, we find the additional detail that he is also allowed to take the children of that union. Which details are included depends on the main topic of each law. Sections 25-29 of the Laws of Eshnunna focus on marital rights of a husband in general, not just on the case when a husband returns after being missing; Sections 133-135 of the Laws of Hammurabi, on the other hand, focus exclusively on the rights of a husband taken in battle, and who has returned. Some scholars have argued that the author of the laws of Hammurabi saw himself as correcting a gap in the laws of Eshnunna, but this is a statutory view of ancient law. No one in the ancient world would have assumed that the Laws of Eshnunna precluded the children going with the mother because of their silence on the matter, especially since that detail had no direct bearing on the marital rights of the husband, which was the subject under consideration.
Similarly, Exodus 21 has more detail regarding bondage, e.g., by addressing the three cases of whether a man was married before or during servitude, or whether he remained single. Leviticus only addresses the case of a man who is married when he enters bondage. If Leviticus were arguing against Exodus, why did it not address the same cases? Even more narrowly, Leviticus’ focus is actually on land-owning married men, as it is mainly detailing the laws surrounding the restoration of things at the Jubilee. To even begin to argue that its silence on a matter must mean one thing or another, one must take into account its focus.
And even though this might be starting to sound like some sort of fundamentalist apologetic, I’d like to make one more observation about the slave laws. We noted that female slaves are treated differently: in Exodus 21, they do not go out as the male slaves do in the seventh year; Deuteronomy 15 says both male and female go out in the seventh year. To the modern eye, this seems like a bald contradiction. But let’s consider context. Exodus 21 focuses mainly on the topic of slaves in general, including other ways in which a woman could gain her freedom. Deuteronomy 15’s main focus, on the other hand, is the rules surrounding the Sabbatical year. And in the immediate context of Exodus 21’s statement that a woman does not go out as with men (v. 7), we are considering the very specific case of a woman who has been taken by the master as wife; the slave taken in such a way even has rights of a wife, and her rights are not to be diminished if the master takes another wife, presumably even if the second wife taken is not a slave. And if he decides to divorce the slave woman he took as wife, he must let her be redeemed and cannot sell her! This is clearly a special case; it could even be said that she is de facto freed by marrying the master, unless one views marriage itself as a type of bondage. Yes, modern statutes would require that this case be explicitly delineated as special from the case in Deuteronomy 15’s blanket requirement that male and female slaves go out in the seventh year, so as not to appear contradictory, but the ancients would have probably seen these details as sufficient.
Berman cites a fascinating cognate case in the Laws of Hammurabi, an apparent contradiction that has baffled many scholars, since the two laws in question appear to be written in the same period, probably by the very same author.[5] Section 6 required death for anyone who stole “possessions” from a god (temple) or the king. But section 8 says that for anyone who stole ox, sheep, donkey, pig, or goat belonging to the palace or temple, the penalty would be repayment thirty-fold. I refer you to his book for various explanations of how scholars have tried to harmonize these passages, or even argue for different authors. But the most compelling explanation begins with the detail that the items in the second list are things which are typically outside. But to argue that items stolen within the temple or palace warrants a greater punishment does not answer why the broader term of “possessions” is used for the death penalty case. But, if we conclude that section 8 is implying lack of intent—i.e., the thief did not know a thing belonged to the temple or palace—then we have our answer. Of course, no modern lawyer would ever make such a leap when reading modern law, but that just shows how different our law is.
Unfortunately, further discussions of contradictions only seen by modern, Western eyes will have to wait mostly until later books on how the literature and historiography of the Bible function. These are key to understanding the intent of the biblical authors, and will probably be much lengthier than just our examination of ancient views of law.
Ancient Harmonizations of Differing Laws
I’ve been saying how the ancient’s viewed law as fundamentally different from our legal code. We’ve cited examples of this, but it would be helpful I think to mention a few more to bolster the case. One of the clearest proofs is how the biblical authors would often blend the laws from different parts of the Torah, much like modern Christians will cite passages from multiple books of the New Testament to flesh out sometimes even a single doctrine. Except that I would argue that the ancients did so far more artfully, as we will see. You may recall that we’ve already mentioned one such case earlier in this chapter, regarding 2 Chronicle 35’s combination of the two different cooking methods for the Passover lamb mentioned in Deuteronomy 16 and Exodus 12.
But there are many similar harmonizations, which are quite a fascinating phenomenon. Exodus 23:11 only portrays the Sabbatical year as agricultural. Deuteronomy 15 adds the detail that the Sabbatical year is also a time for debt and slave release. Nehemiah 10:31 conflates these two laws as if they were written as one. Even more blending occurs in Ezra 3:4’s depiction of the keeping of the Feast of Booths, where language is combined from three books of the Torah: the expression of “making/doing”[6] the festival is distinct to Deuteronomy 16:13, “by number…according to the rule”[7] is found only in Number 29—with a significant 7-fold repetition, and “on each day” is only found in Leviticus 23:37. Jeremiah 34:12-17 similarly borrows language from both Deuteronomy 15:2 and Leviticus 25:10. Joshua 20:1-9 combines legislation regarding cities of refuge from Deuteronomy 19 and Numbers 35. 1 Samuel 15:2 combines language from Exodus 17 and Deuteronomy 25, which differ on who is to wipe out the Amalekites, God or Israel. These are just a sampling of many such occurrences.
These legal blends often serve other functions besides just trying to make sense out of differing law collections. They’re often found in speeches to the people, such as in Nehemiah 5:1-12.[8] Sometimes they serve a hortatory purpose, or are intended as establishing legal norms for the community. Sometimes they seem to expand on the law, as with the admonition of Isaiah 58, which borrows from rules about the Day of Atonement from Leviticus 23:26-32 and chapter 16; yet Isaiah applies them to general days of fasting, which is never commanded explicitly in the Torah, as explained previously.
Perhaps the most interesting use of combination of Torah law is rhetorical use, as a literary framework, or even for a plot structure. In the story of the witch at Endor in 1 Samuel 28, where Saul summons the dead prophet Samuel, even Saul’s own dialogue borrows from the language of Deuteronomy 18’s prohibition against what he is doing,[9] and the story line itself also borrows language from Leviticus 19:31: the type of the plural for mediums is only found in these two passages.[10] Deuteronomy 18 emphasizes how one is supposed to inquire, not of mediums but of YHVH and his prophets; to drive home the point, the passage uses “word/speech” a significant 14 times, a term which is repeated in 1 Samuel 28. But it’s not just the language of the Torah that the story draws from, but actual details. For instance, Deuteronomy 18 explains that a true prophet will be known by whether what they predict comes true; well, sure enough, Samuel’s message is a prediction which comes true the very next day.
A similar combination occurs in the story of Gideon destruction of the town’s pagan worship site in Judges 6, which borrows language from Deuteronomy and Exodus. Deuteronomy 7 and 12 add the command to burn idols to the law in Exodus 34. Many scholars view this as yet another evidence that Exodus was an earlier law.[11] Deuteronomy also changes the verb used in Exodus 34, the command to “cut” the Asherim down, to the more specific “chop”. Yet only a modern view of strict construction of the law would conclude that this was evidence of a distinct legal school, against which Berman argues:[12] the language employed in each of the two passages depends on their hortatory theme and purpose. Deuteronomy 7 repeats the command to burn the idols, the purpose of which is to ensure these objects of wood, silver, and gold do not become a stumbling block to them. The repetition of “cut” for rhetorical emphasis in Exodus 34, on the other hand, emphasizes a contrast between the covenant with God, which they “cut”, against the images which are to be “cut” in order to ensure the future of that covenant. Some of these uses of “cut” are not visible in most translations, but I would argue that it is another significant seven-fold repetition, if we can count the use of two verbs for “cut”.[13]
In the account of Gideon, similar to Saul’s seeking of a medium, we see the actual dialogue as well as the narrative containing key terms combined from these laws in the Torah. In Judges 6, verse 28 repeats language from Exodus 34, which is then placed in the mouth of the townspeople in verse 30. There is a fourfold repetition of “cut”. And yet in verse 26, we see the Deuteronomy 7 command to burn the Asherim commanded by YHVH. Similarly, Gideon’s actions of desecrating the pagan worship site and using the wood of the idol to burn sacrifice to God follow the order presented in the first six verses of Deuteronomy 12: the command to desecrate pagan worship sites and then seek the site that YHVH would choose for worship of him. Interestingly, Gideon does not go to the Tabernacle, so it could even be argued that this is an intentional adaptation as well, even while revering those sacred texts from the Torah.
We’ve noted how certain legal understanding can be gleaned from comparing cognate ancient writings, such as the laws of Eshnunna and Hammurabi. If you’re wondering whether there are examples of the ancients using series of laws to lay out an actual plot structure in a literary narrative, this did in fact occur. For instance, the Neo-Babylonian story Nebuchadnezzar King of Justice patterns its plot structure on the first five sections of the Laws of Hammurabi. And yet while revering that law collection, the author deviates from it.[14]
For one of the most interesting amalgamations and reverings of differing Torah laws, while making some of the most radical adaptations to them, we now turn to the beautiful and literarily sophisticated account of Ruth. To read it, check out my book here.
[1] E.g., People and Land in the Holiness Code: An Exegetical Study of the Ideational Framework of the Law in Leviticus 17-26, by Jan Joosten, p.159.
[2] See above discussion under “Your Brother’s Keeper,” and Rewriting the Torah, by Jeffrey Stackert, pp.153-161.
[3] A Critical Exegetical Commentary of Deuteronomy, by S.R. Driver, p.185.
[4] “Examples of Restatement in the Laws of Hammurabi,” Mishneh Todah: Studies in Deuteronomy and Its Cultural Environment in Honor of Jeffrey H. Tigay, pp.356-400.
[5] Inconsistency in the Torah: Ancient Literary Convention and the Limits of Source Criticism, end of ch. 6.
[6] Strong’s 6213
[7] Strong’s 4557 and 4503
[8] Compare the language of Leviticus 25:42, 46 and Exodus 22:24-26, and Deuteronomy 24:10.
[9] See Bill Arnold’s explanation in “Necromancy and Cleromancy in 1 and 2 Samuel,” CBBQ 66, p. 207.
[10] Inconsistency in the Torah: Ancient Literary Convention and the Limits of Source Criticism, by Joshua Berman, p. 161.
[11] Deuteronomy, by Moshe Weinfield, p. 366.
[12] Inconsistency in the Torah: Ancient Literary Convention and the Limits of Source Criticism, by Joshua Berman, ch. 8.
[13] Strong’s 3772; see “make/made” in verses 10, 12 15, and 27; and “cut” in verse 13. If we also count the use of Strong’s 6458, which also means to cut, then we have two more instances, in verses 1 and 4.
[14] An Experienced Scribe Who Neglects Nothing: Ancient Near Eastern Studies in Honor of Jacob Klein, “Hammurabi in Mesopotamian Tradition”, pp. 507-527.
[15] I am indebted to Joshua Berman, once again, for this analysis, found in his essay “Ancient Hermeneutics and the Legal Structure of the Book of Ruth” (see ZAW 119, 22-38).
[16] See chapter four. Also: Ruth, by Feivel Meltzer.
[17] 1:21
[18] Deuteronomy 23:3 prohibited admission of Moabites into Israel’s “assembly”; if you’re looking for an explicit application of this to intermarriage, you’ll only find it in Nehemiah 13’s (cf. also Ezra 9) intra-biblical interpretation of it, which we’ve already noted also amends Deuteronomy, e.g., adding Egyptians to the lists of groups they could not marry. Also, Deuteronomy does not appear to be consistent regarding why the Moabites are so cursed: it says here that part of the reason for their exclusion stemmed from their not meeting Israel with bread and water when they came out of Egypt, yet 2:28 and 29 clearly say that they did. Of course, there might have been different Moabite groups, one of which did offer bread and water, and another whose king was Balak, who hired Balaam to curse Israel.
[19] Very rarely anymore do you hear preachers mention, for instance, certain New Testament teachings on how women are to keep their mouth shut in the assembly. And when they do, it’s usually to explain them away. Even among the few who still hold to this view, you will often see that it is actually acceptable for women to speak in Bible classes, which might be interpreted as still “in the assembly”; cf. 1 Corinthians 14:34; 1 Timothy 2:12. Note that I even used the masculine pronoun for preachers, but that is only because it is only men who fall weak to misapplication of Scripture….
[20] “You Must Not Add Anything to What I Command You”, Paradoxes of Canon and Authorship in Ancient Israel. Numen 50, pp. 1-51.
[21] E.g., “The Book of Ruth as Intra-Biblical Critique on the Deuteronomic Law”, Acta Theologica, 1999, Vol 19, Issue 1, by Georg Braulik
[22] See the rather lengthy and therefore significant passage of Numbers 22 to 24.
[23] 23:4; 24:9, 18, 22; 25:17.
[24] Deuteronomy 22:13-24. This quite possibly is another example of a law that probably was seldom upheld. And recall that Joseph was commended for not even wanting to bring a bad name on Mary, with not even a mention of the fact that such an attitude totally disregarded the Torah’s required penalty.
[25] Inconsistency in the Torah, by Joshua Berman, ch. 10.
[26] E.g., recall that David himself should have been executed for his murder of Uriah, as there was no redemption for a murderer.