TIP of the day - from the blogs: Making Sense of Old Testament Laws

MJ. Smith

From Interpreting Scripture

Fifty Shekels for Rape? Making Sense of Old Testament Laws

Posted on February 28, 2014 Updated on January 20, 2015

Recently, I received an e-mail from a friend who was perplexed by laws in Deuteronomy: “I’m having trouble with certain verses . . . . Today its chapter 22 . . . . cross dressing, 50 shekels for rape, and then the woman has to marry her rapist? Stoning for adultery?” Many Christians and non-Christians alike find Old Testament laws troubling. After all, isn’t this supposed to be divinely inspired Scripture? Did God actually think it was okay to require a rape victim to marry her perpetrator? In this post, I highlight the importance of not confusing the culture of the ancient Near East (or the Greco-Roman world) with biblical inspiration itself. Ancient Near Eastern culture was not divine; the message that happened to be articulated from within that culture is inspired. The biblical authors wrote with an “accent,” so to speak. The language and social structures of that time period influenced how the message was delivered. If God had chosen to inspire the writing of Scripture today, it would sound a lot different via the vocabulary and social structures of 21^st century America.

Too often readers assume the Bible virtually fell out of heaven or is the product of mechanical dictation (passive writers in a trance). But Scripture is a collaborative effort between God and human beings. God spoke to the Israelites in their cultural context. Thus, not surprisingly, the Israelite law codes are similar to those of other nations. The law regarding rape victims is a cultural artifact (one that is still being addressed today). As troubling as we find the law now, in the ancient Near East the law was intended to protect the honor of the woman who would not be marriageable after losing her virginity (see for example Tamar’s response to rape in 2 Sam 13). In essence, discerning the divine meaning of Scripture requires distinguishing the inspired message from the temporal, cultural mode of delivery. That means attending to both the historical-cultural background and narrative context to best understand the enduring theological significance of the Old Testament laws.

The most significant law codes of the ancient Near East date from approximately 2100 B.C.E. to 700 B.C.E.[1] They include: Ur-Nammu (ca. 2100, Ur), Lipit-Ishtar (ca. 1930, Isin), Eshnunna (ca. 1770, Eshnunna), Hammurapi (ca. 1750, Babylon), Hittite (ca. 1650-1500, Anatolia), Middle Assyrian (ca. 1076, Assur), and Neo-Babylonian (ca. 700, Sippar). Its not certain when the biblical law codes were written. Various theories have been proffered. Those who believe Moses wrote the Pentateuch say approximately 1400 B.C.E. But many scholars insist they were not written until 700 or 600 B.C.E. Possibly older laws were edited over time to their present form in the biblical text. For a helpful visual of these stats, see this map.

The Old Testament law codes include the Covenant Code (Ex 21-23), Holiness Code (Lev 17-26); Deuteronomic Code (Deut 12-26); Decalogues (Ex 20:2-17 & Deut 5:6-21; and the Ritual Decalogue (Ex 34:10-26). There are also additional sacrificial and purity laws especially in Leviticus. The law codes were written in two legal genres: casuistic and apodictic. Casuistic law is case law that is not intended to address every possible legal situation. Instead, a conditional formula is presented and used for drawing conclusions based on association or inference (“If a man rents an ox . . .”). Apodictic law is a direct command or prohibition (“You shall not . . .”).  Casuistic law was common to other ancient Near Eastern law codes, but the apodictic form less so than in the biblical text. Here is a comparative look:[2]

CASE OF THE GORING OX:

Eshnunna:

“If an ox is a gorer and the ward authorities so notify its owner but he fails to keep his ox in check and it gores a man and thus causes his death, the owner of the ox shall weigh and deliver 40 shekels of silver” (A iv 15-18, B iv 20).

Hammurapi:

“If an ox gores to death a man while it is passing through the streets, that case has no basis for a claim. If a man’s ox is a known gorer, and the authorities of his city quarter notify him that it is a known gorer, but he does not blunt(?) its horns or control his ox, and that ox gores to death a member of the awilu-class, he [the owner] shall give 30 shekels of silver” (xliv 44-65).

Israelite:

“When an ox gores a man or a woman to death, the ox shall be stoned, and its flesh shall not be eaten but the owner of the ox shall not be liable. But if the ox has been accustomed to gore in the past, and its owner has been warned but has not kept it in, and it kills a man or a woman, the ox shall be stoned, and its owner shall also be put to death. If a ransom is imposed on him, then he shall give for the redemption of his life whatever is imposed on him” (Ex 21:28-30; NASB).

CASE OF VIOLENCE-INDUCED MISCARRIAGE

Lipit-Ishtar:

“If [a man] strikes the daughter of a man and causes her to lose her fetus, he shall weigh and deliver 30 shekels of silver” (P rev iii 2’-6’).

Hammurapi:

“If an awilu strikes a woman of the awilu-class and thereby causes her to miscarry her fetus, he shall weigh and deliver 10 shekels of silver for her fetus. If that woman should die, they shall kill his daughter” (xli 23-34).

Middle Assyrian:

“If a man strikes a woman of the awilu-class thereby causing her to abort her fetus and they prove the charges against him and find him guilty—he shall pay 9,000 shekels of lead; they shall strike him 50 blows with rods; he shall perform the king’s service for one full month” (ii 98-104).

Israelite:

“If men struggle with each other and strike a woman with child so that she gives birth prematurely, yet there is no injury, he shall surely be fined as the woman’s husband may demand of him, and he shall pay as the judges decide. But if there is any further injury, then you shall appoint as a penalty life for life, eye for eye, tooth for tooth, hand for hand, foot for foot, burn for burn, wound for wound, bruise for bruise” (Ex 21:22-25).

As you can see, both cases are casuistic, presenting a conditional scenario with a resolution. They also share the same subject matter.  The ancient Near Eastern law codes, including the biblical text are concerned with general social issues. While they might not agree on how to resolve a case all the law codes address:

• Relationships (marriage, divorce, adoption, legitimate/illegitimate sexual partners)

• Property damage (injury to boats, slaves, and animals)

• Crime (murder, theft, false testimony, sexual assault, adultery)

• Business transactions (buying/selling, renting, loans/debts, inheritance, employment, the management of slaves)

The ancient Near Eastern law codes represent a commitment to justice.  We might think some of the ancient laws and punishments are primitive or even barbaric, however, the laws are generally geared toward attempts to render compensation when someone has been wronged and to promote proper conduct. Several of the ancient Near Eastern law codes have prologues affirming the importance of righteousness and justice. A short excerpt from Hammurapi’s prologue reads:

“At that time, the gods Anu and Enlil, for the enhancement of the well-being of the people, named me by my name: Hammurapi, the pious prince, who venerates the gods, to make justice prevail in the land, to abolish the wicked and the evil, to prevent the strong from oppressing the weak.”

Despite obvious similarities, differences between the biblical law codes and those of other nations are also apparent. Most significantly, the biblical codes are embedded in a broader narrative; the other ancient Near Eastern codes are not. Although the Israelite codes might have existed independently at one time, they have been recontextualized and preserved in Scripture as blended genre (legal text with narrative). The recontextualization of the laws naturally affects their meaning. A second difference is the source of the laws. The biblical text describes God as giving the statutes through a prophet. Other ancient Near Eastern codes are given by a king who states the gods have provided him wisdom and authority to make and enforce the laws.  Hammurapi gives credit to the gods for choosing him and commanding him to provide justice, but he ultimately refers to the laws as his own pronouncements and judgments. Obeying the king’s laws was tantamount to showing allegiance and subservience to him. This is important for understanding the significance of Mt. Sinai. God, and not a human king, is defined as the source and enforcer of justice. Thus, what might have been considered a civil matter is now categorized explicitly as sin against the Creator of the Universe.

The prologue and epilogue of other ancient Near Eastern law codes show reverence for the gods but there is not the same religious connotation attached to the actual laws as in the biblical text. For example, Deuteronomy 24 states: “You shall not oppress a hired servant . . . you shall give him his wages on the same day . . . lest he cry against you to the LORD and you be guilty of sin.” In addition to these religious motivational addendums attached to some of the biblical laws, the narrative context of the law codes provides an overarching theology that to act justly is to show allegiance to God and not only a human king. In fact, Israelite law codes actually mix both civil and religious law, whereas in other ancient Near Eastern codes that is not the case.

So how might we understand these laws as inspired text? In what way are they inspired if they are so thoroughly enmeshed in the culture of that time period? There seems to be evidence of divine movement amid cultural expression. For example, in some situations (not all), the biblical text seems to exhibit progressive thinking. Consider the Case of the Runaway Slave:

Ur-Namma:

‘If [a slave] or slave woman ventures beyond the borders of (his or) her city and a man returns (him or) her, the slave’s master shall weigh and deliver [x] shekels of silver to the man who returned (the slave)” (A vii 314-32).

Lipit-Ishtar:

“If a man’s female slave or male slave flees within the city, and it is confirmed that the slave dwelt in a man’s house for one month, he (the one who harbored the slave) shall give slave for slave” (D ii 14-22, E ii 16-18).

Hammurapi:

“If a man should harbor a fugitive slave or slave woman of either the palace or of a commoner in his house and not bring him out at the herald’s public proclamation, that householder shall be killed” (viii 37-48)

Hittite:

“If a male slave runs away and goes to the land of Luwiya, his owner shall pay 6 shekels of silver to whomever brings him back. If a male slave runs away and goes into an enemy country, whoever brings him back shall keep him for himself. If a male or female slave runs away, the one at whose hearth the slaveowner finds him/her shall pay one month’s wages: 12 shekels of silver for a man, 6 shekels of silver for a woman” (23a-24).

Israelite:

“You shall not hand over to his master a slave who has escaped from his master to you. He shall live with you in your midst, in the place which he shall choose in one of your towns where it pleases him; you shall not mistreat him” (Deut 23:15-16).

In this particular instance, a progressive view is evident.[3] The law is still culturally based (slavery was commonplace in the ancient Near East, including in Israel), yet there are seeds to new ways of thinking. Inspiration did not remove the biblical writer from his culture, but it began to penetrate that culture. Over time, additional revelation occurred. We see further evidence of this progressive revelation within the biblical text itself when certain laws are revised. For example, notice the revisions in Deuteronomy 7:9-10 on transgenerational punishment compared to the original statement in Deuteronomy 5:9-10. As Bernard Levinson demonstrates in his work Legal Revision and Religious Renewal in Ancient Israel the biblical authors gradually discarded the view that descendants should be punished for the sins of the fathers (see also Deut 24:16 and Eze 18:20).[4]

Too often the Old Testament laws are dismissed outright as irrelevant. But, by understanding the historical-cultural background, narrative context, and how inspiration seems to have occurred, we can appreciate the enduring theological significance of the text. For the Israelites God is a just God who gives laws out of a desire for human beings to live in a manner that is congruent with justice. Human beings are not only accountable to human governments, but to God, an impartial judge who stands above the self-interests and agendas of earthly rulers. In essence, the laws symbolize the concept of a good and just society. What is inspired is not the genre and peculiar ancient Near Eastern legal concerns of the time, but rather what the laws signify. To live rightly is to honor God and neighbor. Quoting the Old Testament, Jesus made the same point: all the laws can be summed up in love God and love neighbor (Matt 22:37-40; see Deut 6:5 and Lev 19:18). Jesus didn’t dismiss the Old Testament statutes as irrelevant. Instead, he saw past the cultural trappings to affirm the overarching intent and purpose of the laws.

Sources and Suggested Further Reading:

Jackson, Samuel. A Comparison of Ancient Near Eastern Law Collections Prior to the First Millenium BC. Piscataway, NJ: Gorgias Press, 2008.

Levinson, Bernard. Legal Revision and Religious Renewal in Ancient Israel.  Cambridge and New York: Cambridge University Press, 2010.

Roth, Martha T., Law Collections from Mesopotamia and Asia Minor. Edited by Piotr Michalowski. Atlanta: Scholars Press, 1997.

Westbrook, Raymond, ed. A History of Ancient Near Eastern Law, Vol. I & II. Boston: Brill, 2003.

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[1] The law codes are not to be confused with other legal texts such as court records or transactional documents that specify an actual case with names, location, and details of a particular situation. There is a separate archeological collection of legal documents pertaining to actual daily legal affairs. Significant debate exists regarding the relationship between the law codes and the transactional and court records because these other records do not directly refer to the law codes (Roth, 16). For example, court records do not say, “We are rendering this judgment in accordance with law #52 of the Hammurapi code.” So, there are questions about how much the law codes were used in daily legal affairs. Various theories have been proposed. Many of the law codes have been found in scribal schools and the casuistry style of the texts is in the vein of Mesopotamian genre of scientific inquiry (Westbrook, 17-18). Thus, some scholars believe the codes were used for educational purposes—for teaching and dialoguing about legal matters. Others propose the law codes were royal propaganda to validate the authority of the king. And still others think they were a form of common law that was enforced. Scholars do agree that there is a distinction between the law codes and the daily legal records but there is no clear consensus on what that distinction means.

[2] All translations of ancient Near Eastern law codes included above (aside from the biblical text) are from: Martha T. Roth, Law Collections from Mesopotamia and Asia Minor (ed. by Piotr Michalowski; Atlanta: Scholars Press, 1997).

[3] Interestingly, the Israelite statute is expressed in apodictic form, while the others are casuistic. There seems to be a distinction in most of the law codes between runaway slaves who escape outside the borders of their city/country and those who are fugitives within the city. While other ancient Near Eastern laws encourage the return of slaves whether they are fugitives within or outside the city, Israelite law discourages returning foreign slaves who have apparently escaped from other territories. However, the biblical text does not seem to include a provision for fugitive slaves within Israel.

[4] See also Michael Fishbane, Biblical Interpretation in Ancient Israel (Oxford and New York: Oxford University Press, 1985).