Prof. Joshua Berman Returns for a Follow-Up Interview on Biblical Law

Joshua Berman of Bar Ilan University/Shalem Center spoke again at Davar in Teaneck about his new project of reassessing Biblical source criticism from an academic and Jewish perspective. Berman attended Princeton University, and holds a doctorate in Bible from Bar-Ilan University. He studied at Yeshivat Har Etzion and received his ordination from the Chief Rabbinate.

In December 2011, I interviewed Joshua Berman about Biblical source criticism as it is found today and one should not set up a straw man to refute. A month later, I interviewed one of the world’s experts on Pentateuch source criticism Prof. David Carr about the passing of the Documentary Hypothesis. They both came out great and are worth reading.

This year Prof. Berman tackled the contradictions between the Covenant Code of Exodus and the Deuteronomy Code. Standard scholarship as typified by leading scholars such as Prof. Bernard M. Levinson in Deuteronomy and the Hermeneutics of Legal Innovation (1997) and Legal Revision and Religious Renewal in Ancient Israel (2008) views the contradictions are purposeful rejection and replacement in the evolution of a single code. Berman’s view is that the original statements were meant to be exhortations about legal values and not law fixed in details. Hence, the revisions are not in contradiction to the earlier version, rather elaboration and application to the situation at hand. In addition, Berman attempts to contextualizes Deuteronomy in the earlier Hittite and Mesopotamian texts, rather than 7th-8th century Assyrian texts. For those who want some good online samples of Levinson on Dueteromistic law, – see here at the YU/Cardozo website Deuteronomy as the First Constitution(good overview by end of article), and how Deuteronomy rewrites kinship law, slavery law, and use of 8th century Assyrian works. Berman attempts to offer an alternative that provides an earlier date and a continuity between the covenant code of Exodus and Deuteronomy.

I must reiterate for the abecedarian Orthodox reader that contradictions are based on historical reconstruction and historical context based on archaeological and parallel ancient texts. A literary homily that resolves contradictions with drush but without history does not resolve anything.

There is a further agenda emerging from the ongoing work of Prof. Josh Berman, his commitment to historical realism and historical inerrency. There are currently three approaches among those Christian Evangelical authors seeking to grapple with Biblical source criticism. (1)The first is typified by Peter Enns, student of James Kugel, who in his Inspiration and Incarnation (2005) tries to find a way to accept Biblical source criticism. The Bible shows human characteristics. (2) The second approach is typified by James K. Hoffmeier, who argues that one needs to maintain the historical veracity of the text in order to preserve Biblical inerrancy. Hoffmeier is most upset at the approach of Kenton Sparks to which he just edited a volume of refutations called Do Historical Matters Matter to Faith? (2012) (3) the third approach typified by Kenton Sparks, in his God’s Word in Human Words (2008) who looks for a middle way and separates God’s will from the text, the way Karl Barth, the Yale school, Brevard Childs, and Catholic Biblical Studies do. Sparks sees the Biblical text as a Divine accommodation to human knowledge of the time in science,history, and culture, but we should be concerned with the Divine message of the text.
Prof. Berman’s approach is firmly in the second group and seeks to defend the historicity of the text.

Berman’s Summary of his Law Talk
Think about how we use the word “law” today in everyday speech: “he upheld the law”; “he broke the law”; “congress amended the law”; “that does not accord with the language of the law.” Implicitly, the notion of law that most of us carry is that “law” is codified law – that is written down by an authority, such as a legislature, or a great authority, such as Maimonides. Most importantly, most people assume that such law—such codified law—has two distinct characteristics: it is exhaustive, so that if an idea or norm is not written in the law, then it doesn’t have any binding status. Second, the law is written in an extremely precise fashion, so that we can scrutinize every word (or, as we say in the yeshiva world “be me-dayek”) for nuance.
Yet, as the great scholar of the history of law, Sir Henry Maine, pointed out in his magnum opus Ancient Laws, such a notion of law existed nowhere in the ancient world. All of our epigraphic evidence from the ancient Near East such as Code of Hammurabi shows this to be true. Law, in ancient times was much more akin to what we all experience in our own homes. Proper conduct at home stems from the totality of the values that we try to inculcate. Exactly what is permitted, and what is prohibited, what the penalty will be for improper conduct is a highly fluid and dynamic process. This is how all ancient societies thought of proper conduct, and hence nowhere do we find even a word for written law, until classical Greece.

In a longer academic piece currently in submission I trace the historical development of the idea of law and explore its implications for the study of what is called “biblical law”.

How does this approach relate to those opinions that maintain that Deuteronomy is a rejection of earlier law in the Torah and seeks to replace it?
Classically, scholars have maintained that Deuteronomy rejects earlier law in the Torah, and was never originally intended to be placed alongside those other formulations. More recently, there has been a move to see Deuteronomy as part of an integral whole with the earlier formulations—not through harmonization, but as a process of interpretation. That term “interpretation” is probably anachronistic, and I would prefer the term “re-application.”

A lot hinges, I would submit humbly, on precisely the questions of legal theory and legal model that a scholar brings to the table in the first place, that I’m trying to elucidate in my current scholarship.

Let me give an example of the difference between the two approaches. The law of the debt servant (‘eved ‘ivri) appears in Exodus 21:1-6 and in Deuteronomy 15:12-18. Deuteronomy adds the stipulation that the master must provide the servant with severance gifts upon his release, so that he may re-establish himself economically. The exclusionist approach maintains that the author of Deuteronomy found the law in Exodus wanting. He rewrote the law in the hopes that it would supersede the law in Exodus, and, indeed that the version in Exodus would be “off the books” as it were, with only the new formulation in Deuteronomy in circulation. The alternative view says that Deuteronomy does not seek to replace the law in Exodus; indeed, the verses in Exodus are not “law”, meaning codified law. Rather, Deuteronomy seeks to update the wisdom contained in the Exodus verses. Deuteronomy, broadly speaking, addresses a situation in which Israel is set to enter the land and acquire wealth and power. The added stipulation in Deuteronomy is part of that agenda.

All of this is quite counter intuitive, but I’ll just point to two interesting set of data that are well explained by this approach. Nowhere in the entire Hebrew Bible do we find a prophet, or a king, or a priest, or a narrator who claims that the law is being performed one way, but really needs to be performed another way. If these so-called law-codes were indeed mutually exclusive we would expect much more explicit debate about practice across the Hebrew Bible. Instead, levirate marriage in Ruth is but an iteration of what Deuteronomy set out, and no one thought that the practice of levirate marriage in Ruth “contravened the codified law of Deuteronomy.”

The other significant data set is the remarks of the great early biblical critics – Spinoza, Astruc, Eichhorn, and Ewald. All saw discrepancies within Pentateuchal narrative, but none made comments about discrepancies in biblical law. De Wette—the first to claim that Josiah’s court authored Deuteronomy—actually has a list comparing law in Exodus and law in Deuteronomy. He lists only five laws that in his mind are at odds with each other. He then provides a much longer list of laws that he finds consistent. All of these writers lived before an age when codified law was the norm, and thus did not perceive the discrepancies that twentieth century scholars of biblical law do. Graf was the first to posit broad discrepancies between laws codes in the Pentateuch – and his magnum opus of 1865 appeared at just the time that codified law was beginning to rule the day. I relate to all this in greater depth in the piece I currently have in submission.

(AB- editor’s note. In this approach there was never a contradiction between Exodus and Deuteronomy, as per the source critics, but at the same time it differs with the approach of Rabbinic Midrashei Halakhah. The sofrim, sages, and then Rabbinic texts find mountains of meaning in the differences in the two texts. For Berman’s approach, Biblical law was fluid and dynamic, but by implication Rabbinic law starting with the sofrim was a change to fixed texts and interpretation.)

Why was Breuer a false direction and why is Cassutto’s scholarship a road for the future?
Rav Mordechai Breuer, z”l, was a learned and pious man, who had the courage to confront the findings of biblical criticism of his age and address them thoughtfully. But I would humbly submit that he was deeply wrong in his approach. With Wellhausen and Gunkel in hand (quite literally – I once heard him say that he would read scripture with Gunkel in hand), he fully adopted the divisions and often micro-splitting that these scholars proposed. Many scholars today have moved away from the classic JEDP documentary hypothesis precisely because of all the imprecision that was involved in forcing it upon the texts of the Pentateuch. R. Breuer thought that by appropriating the major conclusions of higher German criticism, and re-enveloping it within a new semi-mystical construct, he would be able to “rescue”, as he saw it, many traditional youth from the attractiveness of the documentary hypothesis. My experience has been that many of those from within the orthodox community—especially in Israel—who became enamored with R. Breuer’s approach, eventually realized that the original formulations of the German scholars made more sense than R. Breuer’s new theology.

I have always been more enamored by the work of Benno Jacob and particularly of Umberto Cassuto. These were men whose critical scholarship at times could put them at odds with accepted orthodox tenets. But both had a deep belief that somehow this text that we call the Pentateuch or the Torah, could not be divided as simply as many scholars proposed and displayed much more unity than was usually ascribed it in critical circles. Particularly Cassuto believed that many of the “fissures” that are apparent to modern eyes could be re-evaluated with reference to ancient writings and modes of thinking. I’ll give one simple example of this: for well over a century scholars held that the presence of two divine names was ipso facto evidence of two authors with differing theologies. Evidence from the ancient world, however, shows that back then people could refer to the same deity with multiple names, even when it was clear that the composition in hand was the product of a single author.

Not all seeming discrepancies can be resolved that simply, but I do believe that ancient writings and ways of thinking have much to tell about many supposed “fissures” within the biblical text.

One of the biggest fissures exhibited in the Torah concerns the narratives of Deuteronomy 1-11. In wholesale fashion, these seem at odds with the narratives depicting those same events in the other books of the Torah. I believe that there is an important literary precedent for this type of writing, and it is the subject of my forthcoming article in the Journal of Biblical Literature, “Deuteronomy 1-3 and the Hittite Treaty Prologue Tradition.”

Why do you like the work of David Carr and why do you think that he does not live up to his own standard.
David Carr’s most recent book: The Formation of the Hebrew Bible: A New Reconstruction (Oxford University Press, 2011) is, as I see it, a milestone in biblical scholarship. Here we have a scholar who insists that those who wish to parse a text and trace the development of a text into its present form must do so solely on the basis of empirical models of textual evolution. While many may pay lip service to that, Carr is the first to doggedly pursue it.
In the book’s first 150 pages he takes all the major known cases of textual evolution from the ancient Near East, and deduces from them a series of highly consistent trends. It is almost shocking that it took until 2011 for a scholar to produce such a work.

Having said that, I found it disappointing that Carr maintain, in the latter half of his book, that Genesis can be divided into neat strands of P and non-P material. Such a process of extended conflation knows no precursor. The example that Carr cites, of the 2nd century work Diatesseron is, to my mind, not applicable. There are many differences between what Tatian did in that work and what we see in Genesis in the conflation of so-called P and non-P material. I can here only relate the most important one, and that is that Tatian conflated the various accounts of the gospels so that he could produce a relatively seamless account of the life of Jesus, one that removed many of the seeming discrepancies that exist in the four accounts of the gospels, taken separately.

The problem with adducing this as a model, as I see it, is that the redactor of P and non-P, according to Carr’s theory, clearly did not act with such an agenda in mind, as too many “fissures” as Carr has labeled them, remain. There are other dissimilarities between Diatesseron and such a conflation theory concerning biblical texts that I hope to pursue in a later work.

What do you think of the debate within Evangelical circles between liberal scholars and conservative scholars?
I am continually fascinated by the manifold ways in which evidence about a biblical passage or archaeological find can be marshaled, and that virtually any narrative can be spun in a convincing way. Before agreeing with a position, therefore, it is critical to read widely and see how others parse the evidence.

Consider perhaps the most sensational finding of recent years, the Qeiyafah ostracon in 2008. (I’m quite partial to this find, in part because the tel is just five minutes from my house.) It is a perfect showcase for the need to read widely on every issue. The osctracon was found at an early 10th century site in the Elah Valley, and contains five lines of writing and some 72 characters.

But what language is it? In a recent piece in BAR, the respected epigraphist, Christopher Rollston surveyed the evidence and concluded, that we just don’t know; the script is clearly proto-Canaanite, but the language could be Hebrew, but it could also be Phoneican, or Canaanite. But then you read the essays contained in Hoffmeier’s recent volume, and another narrative emerges altogether, one that points strongly to Hebrew. Rollston and others are correct that from the perspective of epigraphy the issue is inconclusive. But the picture changes when the ostracon is examined in ethnographic context. Extensive animal remains have been found at Qeiyafah, but no pig bones. Extensive remains of day to day life have been found intact, but no figurines.
We can also note that one of the city gates opens not to one of the four winds, but northeast, toward Jerusalem. When all of this evidence is taken together, no language emerges as a stronger candidate than does Hebrew. Evidence can be parsed in many ways, and in the end, so many issues come down to likelihoods, or probabilities, and not hard and fast proofs.

In your talk you quote Rav Zadok Hakohen’s (1823-1900) idea that Torah is renewed in every generation and that it is not a change but implicit in the original. How do the writings of Rav Zadok help you? Isn’t it anachronistic?

R. Zadok is keenly aware of how much halakhah changed and evolved prior to its codification in the middle ages, and celebrates this process. What he describes has much in common with the “Common-law’ approach to jurisprudence that I think is a very helpful heuristic to understand the evolution of law in the times of the Tanakh. It is through these constructs that R. Zadok is able to recognize that many laws in Deuteronomy stand at odds with the earlier formulations of those laws elsewhere in the Torah. Yet through his understanding of law as other than codified law, he is able to explain how difference can still reflect a process of continuity. This is all very counter-intuitive for us as citizens of the modern state, and indeed, for us as Jews who follow a codified halakhah. It requires a lot of shedding of ingrained notions about what law is.

Is it anachronistic to invoke the British common-law system or the work of a late 19th century Polish rabbi to elucidate Scripture from a critical perspective? Of course it is. But it is no less anachronistic to study those texts through the lens of Jeremy Bentham and John Austin – the early 19th century British fathers of the idea of codified law. And yet, implicitly, this is how much critical study of biblical law is carried out. The point is, when you study a legal text—say the law portions of the Torah—you always have in mind some idea of what law is, and what a legal text is. The question is whether you are critically aware of your assumptions, and whether they are valid. I believe that by examining different historical models, we are better equipped to grapple with the ancient texts. I believe that the writings of the British common-law tradition, (which have parallel in the writings of R. Zadok), are a helpful heuristic aid for understanding the biblical texts.

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