Tuesday, October 25, 2011

Moses or Hammurabi?

Liberals often rejecting the inspiration of the Mosaic law by claiming that the “redactors” simply plagiarized the code of Hammurabi. I’m going to begin by quoting some liberal scholars on the question of literary dependence, then make some comments:

In Inventing God’s Law: How the Covenant Code of the Bible Used and Revised the Laws of Hammurabi, David P. Wright has laid out in great detail his argument that the Covenant Code (Exod 20:23–23:33; henceforth CC) is dependent both in content and structure on the Laws of Hammurabi (henceforth LH). In the first chapter of the book, Wright sets forth his general claim. In the second and third chapters, the detailed arguments for the dependence of the casuistic (ch. 2) and apodictic (ch. 3) sections of CC on LH are presented. Chapter 4 proposes the historical setting for the composition of CC: in the Neo-Assyrian period, specifically between 740 and 640 B.C.E. Chapters 5–11 describe the process by which CC transformed its source material, in both legal and ideological terms.
For a number of the casuistic laws of CC, Wright clearly demonstrates the manner in which CC has adopted and adapted laws from LH. His analysis of the apodictic laws of CC is less persuasive; indeed, he admits that it is only once one has accepted dependence on the basis of the casuistic laws that one can in turn see the relationship between the apodictic laws and LH (58).
While Wright’s main point, the dependence of CC on LH, is successfully made, his exuberance in making his case does at times have a deleterious effect on the argument. This comes out mostly in his attempt to see dependence almost everywhere, even when the connections between CC and LH are less than perfectly clear. Thus he at times relies on what appears to be no more than common Semitics in drawing parallels: the use of the verb “to take” to designate marriage, for instance (34), or the use of the qattl nominal pattern for habitual action (40). There are also cases in which the similarities between the CC and LH laws are outweighed, to my mind, by their substantive differences: although both Exod 21:33–34 and LH 229 describe an act of negligence and the punishment thereof, the biblical law describes someone who digs a pit and fails to cover it, while the Mesopotamian law describes someone who builds an unstable house (41–42). As there is no reason to think that the CC author would have needed to change the law in LH—Israelites, after all, had houses also—it is difficult to see a clear line of literary dependence here. In the apodictic section, surely CC’s call to heed the “words” of the deity in 23:13a need not be dependent on LH’s laws regarding obedience to the “words” of the stela (59–60), especially as the “words” in CC are the spoken words of Yahweh, while those in LH are the written words of the document. Similarly, although it is possible that the Hebrew word b-r-k, “to bless” (20:24), is conceptually similar to the Akkadian idiom rum tbum, “well-being” (LH col. 48:34–35), it is a stretch to argue that this is evidence of direct dependence.
Wright’s conviction that CC is fundamentally a derivative text drives him to see dependence not only where there are potential connections to LH but to any number of other texts, Mesopotamian or otherwise. Thus there are parts of CC that he derives from the Laws of Eshnunna, from the Middle Assyrian Laws, from Hittite laws, and even from Ugaritic material. He surmises at one point that a CC passage is derived from an otherwise “unknown Akkadian law” (217–18). The picture of CC as dependent on LH is somewhat altered by this type of analysis. CC appears to be more a collection of various legal traditions that uses LH as its basis and structure, while filling it out with other traditions where necessary. Though this is not impossible, it does raise the question of whether there is any CC material that is original to its author, rather than being necessarily derived from an external legal source. Most problematic in this regard is Wright’s assumption of the existence of a “native participial source” (see esp. 159–63, 192–204) on which CC has drawn. Wright admits that this “source” cannot be reconstructed (162), though at times he attempts to do just that (164, 196, 203). Since elsewhere Wright claims that CC has used the participial form in rewriting LH (165–66, 197–98, 200), it is unclear to me why these participial elements could not simply be the original contribution of the author of CC, representing his expression of native Israelite legal custom. Even in a text that is largely dependent on another, there is still surely room for original authorial contributions. 
This aspect of Wright’s work raises the larger question of the intention of CC’s revision of LH. For Wright, CC was written as an academic, polemical response to LH. Yet many of the changes to LH found in CC seem to have no ideological quality but are merely attempts to create a sound legal document, as Wright himself observes (see 190–91, 227– 29, 284–85). Furthermore, some places where Wright sees ideological polemic may be accounted for just as readily on the basis of the author of CC’s adaptation of Mesopotamian religious ideas to those of Israel, especially as regards the question of monotheism.
In general, Wright reads CC almost entirely through the lens of its revision of LH, which results in some slight methodological difficulties. Regardless of its relationship to other texts, CC must be comprehensible within its own cultural context, as a literary product unto itself. When Wright identifies a specific text as being written in the “native idiom” (183), he establishes a false dichotomy with the rest of CC. The entire text is written in the “native idiom,” otherwise it would not be comprehensible to its readers or writers. To take one example in particular, Wright claims that when CC uses the term ha’elohim it means “the god,” in contrast to the plural gods of LH (252–58). Yet it seems probable, given the evidence from the rest of the Bible, that Israelites hearing or reading ha’elohim would recognize a direct reference to Yahweh rather than a response to a foreign law code with which they would have no familiarity. In broader terms, Wright at times ascribes ostensible difficulties in the logic of CC to the way in which CC uses LH: according to his analysis, CC is understandable once we see how it plays off LH (140, 178, 188, 307). The problem is that the audience of CC would not have LH before them to serve as a guide for reading CC. As a document intended, as Wright recognizes, to be an Israelite replacement for LH, CC has to be comprehensible on its own terms. 
The fundamental question is whether dependence—that of CC on LH or of any text on another—necessarily entails polemic or any ideological motivation. Although this is commonly assumed to be the case, I do not see that it is required. It is perfectly reasonable, to my mind, that the author of CC should have used LH because of its high standing as a major legal text, as a template and guide when creating his own Israelite law code, without writing as a direct response to LH per se. The use of a preexisting text does not require that the newer document be written as replacement or rebuttal; it may simply be taken as a model. Wright assumes the ideologically motivated polemical intent of CC more than he proves it.

As Wells already noted, the agreement of the items of CC with their counterparts in LH often is less than convincing. In particular, the basic categories of this analysis must be challenged. 
The notion of “thematic correspondence” is questionable since the definition of the topic can indicate either the subject matter of the law at hand, such as debt servitude, or a generalization, such as “negligence.” In the latter case, the definition is exegetical and as such does not indicate any inherent connection between the laws coming under this heading. Moreover, in some cases Wright subsumes laws with different subject matter under one heading, such as “Negligence” and “An ox goring an ox.”
The notion of order is problematic, since the ordering of laws is a matter of associative or logical connection (e.g., principal rule followed by specific details) rather than of mere juxtaposition or numerical succession as in a catalogue. Thus, when the ordering of laws in different corpora is similar, one still has to consider the logical aspect.
The end of CC includes a number of laws that are not matched by corresponding laws in LH, the law on seduction (22:15–16//MAL A 55–56 and a number of miscellaneous participial laws are noted (22:17–19), not matched by LH, but cautiously attributed to a “native source,” like 21:12–17.
The present reviewer’s criticism of this construction relates to all three parameters indicated above. The idea of correspondence of ordering in itself seems problematic.4 Number 3 of CC (homicide) is paired with LH 207, which rather relates to number 5. The connection between numbers 5–6 (injury, homicide, miscarriage, and talion) relates to inner logic and thus does not indicate influence. By the same token, in CC the connection of these laws and the laws concerning the goring ox (nos. 7, 10) is organic, whereas in LH the relevant laws (LH 250–52 and LH 209–10) are separated one from another by long series of laws. In LH number 11 (LH 253ff.) seems to follow logically after number 9 (LH 250–52; but see below), whereas in CC the juxtaposition of numbers 10–11 (21:35–36; 21:37) is no less logical. Here, then, the logic of the CC ordering is internal rather than derived from LH. So is the ordering of 21:37ff. (no. 11) and 22:4–5 in CC, although the latter two laws have no equivalent in this part of LH (but note LH 57–58). Both in CC and in LH the connection of numbers 12–14 is subject related and thus a matter of internal logic. Thus the evidence of order is less impressive than it seems at first sight.
The indication of thematic connection often is questionable. The CC homicide law (“Death from striking, intent,” 21:12–14; no. 3) is only partially comparable to LH 207, which imposes a fine of 30 sheqels for slaying a mr awlim in a brawl, and belongs to a complex of laws dealing with injury (intentional and unintentional, LH 196–214) rather than with homicide as such. In CC the law mentioned under “negligence” (21:33–34, no. 10) concerns a pit into which an ox or a donkey may fall and the compensation for the damaged animal. As such, this law is related to the theme of the goring ox and the reparations involved (21:28–32, 35–36) and is hardly comparable with the liability of the contractor of LH 229–30, which is only one of the instances of professional and technical liability, including also physician, veterinarian, barber, and boatman (LH 215–27, 231–40). 
In conclusion, in the realm of casuistic law the specific details of the comparison are of different strength. Hence the strong claim of textual dependence seems to lack evidential support. What is needed is proof of a strong connection in a large number of cases, such as the connection between the Eshnunna Law (LE 53) and the law of the goring ox (Exod 21:35) or the correspondence between the Hittite laws (HitL 105–7) and biblical laws (Exod 22:4–5) concerning grazing and fire (see Wright, 240–41). Evidence of this kind is lacking. Nor do we find specific evidence for the translator’s interference. The linguistic correspondences quoted are of a general nature, and nowhere do we find indications of explicit translational calques.
In the field of apodictic law, the connections between CC and LH are even weaker. The correspondence between the altar law (Exod 20:2–26) and the prologue to LH is limited to the general theme of temple worship, whereas the similarities between the epilogue and Exod 22:20–23:19 pertain to mere generalities. 

In a similar vein:

i) As we can see, even from a liberal perspective the question of literary dependence is highly conjectural. Liberals scholars dispute the nature and the extent of literary dependence.

ii) One challenge is to formulate a theory which accounts for both similarities and dissimilarities. If the Mosaic code simply reproduced the Hammurabic code, the argument for literary dependence would be more straightforward.

Yet by Wright’s admission, not only are there many striking divergences, but in his view, the Mosaic code is actually and consciously opposed to the Hammurabic code. The Mosaic code uses the Hammurabic code as a foil to score polemical points.

But even if we agree with Wright’s analysis, that would be entirely consistent with a high doctrine of inspiration.

iii) Wright also has to postulate hypothetical sources to pad his theory. That’s a common tactic to prop up a sagging theory. To save appearances. It’s not the evidence driving the theory, but the theory driving the evidence.

iv) Of course, another way to account for the divergence is to deny literary dependence. If, in fact, these two law codes are independent, then we’d expect them to diverge. That doesn’t require any special explanation.

v) At the same time, how to we account for the similarities? To a great extent we can expect similar regulations if, say, the environmental and attendant economic situations are similar. And, of course, we can expect cultural diffusion to produce common agronomic strategies to the same environmental limitations and opportunities.

That would also be consistent with the “organic” theory of inspiration (touted by Old Princeton). The Mosaic law would be adapted to the providential conditions under which the Israelites had to live, which they largely shared in common with their neighbors.

By the same token, two cultures can independently arrive at similar solutions given common environmental pressures. There are only so many feasible options to work with.

vi) Although all four scholars agree in principle on source criticism, they disagree on the actual sources. So it’s much like taking a Rorschach test. 

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