Law and Covenant in Israel and the Ancient Near East-- G. Mendenhall

*** Part I -- End Notes ***


1. Cf. for example, Cardozo, Selected Writings, New York 1947, p. 161f: "What really matters is this, that the Judge is under a duty, within the limits of his power of innovation, to maintain a relation between law and morals, between the precepts of Jurisprudence and those of reason and good conscience. I suppose it is true in a certain sense that this duty was never doubted."

2. Ernst Forsthoff, Recht und Sprache. Sitzb d. Koenigsberger Gelchrte Gesellach. 17 (1940)

3. From the Lipit­Ishtar code: "When Anu and Enlil had called Lipit­lshtar . . . to the princeship of the land in order to establish justice in the land, to banish complaints, to turn back enmity and rebellion by the force of arms . . . . J. B. Pritchard, ed., Ancient Near Eastern Texts (hereafter abbreviated ANET), p. 159.

4. Specific edicts of the king of course excepted. For an extreme example of religious obligations imposed upon the king, see the description of the Pharaoh by Diodorus Siculus, quoted in Wilson, The Burden of Egypt, Chicago. 1951. p. 307f.

5. There are only very Isolated and remote parallels to the Israelite prophetic condemnations in extra­biblical literature. See Lods, "Une tablette inedite de Mari" in Stud. in OT Proph., N. Y.. 1950, p. 101 ff

6. Cf. Josh 7, the story of Achan; II Slam 24:12­14 in which the sin of David brings calamity upon the entire land. Jonah 1:11­12

7. "The giving of the law at Sinai has only a formal, not to say dramatic significance. It is the product of the poetic necessity for such a representation of the manner in which the people was constituted Jehovah's people an should appeal directly and graphically to the imagination . . . For the sake of producing a solemn and vivid impression that is represented as having taken place in a single thrilling moment which in reality occurred slowly and almost unobserved." Art. "Israel", Encyclopedia Britannica, 9th ed. (1881), Vol. XIII, pp. 396 ff

8. Cf. the statement of Max Web "In antiquity every political alliance. In fact almost every private contract was normally confirmed by an oath. i.e., the curse of self . . . Above all, Israel itself as a political community was conceived as an oathbound confederation . . ." Ancient Judaism, Glencoe, Ill., 1952, p. 75

9. For this federation see M. Noth, Das System der zwoelf Staemme Israels, 1930

10. The writer expects to publish in the near future a detailed treatment of covenant concepts and forms in biblical and extra­biblical sources. For the Mosaic date of the Decalogue see K. H. Rowley, "Moses and the Decalogue." Bulletin of the John Rylands Library 34, 1(951-52), 81 ff

11. Die Urspruenge des Israelitischen Rechts, 1934

12. See Landsberger, "Die babyl. Termini fuer Gesetz und Racht," Symbolae Paulo Koschaker, Leiden, 1939, p. 223. Also Meek in ANET, p. 183 n. 24

13. Friedrich, Mitt. d. vorderas. Gesell. 31 (1926). p. 119

14. The traditions telling of various challenges to the authority of Moses at least fit in with this position. Nu 12:2; 14:4; 16:3. "Murmuring" against authority was universally regarded an breach of covenant

15. The argument that the Decalogue must be late because of the Sabbath command is far from convincing, and is almost naive. Later traditions knew nothing at all of the origins of the Sabbath. It to obvious that the meaning of the Sabbath was adapted to conditions of life in Palestine after the settlement, but to conclude from its later interpretation that it could not have existed in the desert ignores the almost universal law that readaptation of old customs and ceremonies follows changes in culture

16. This will be dealt with in my forthcoming article on the covenant

17. Cf. the story of Dathan and Abiram and their punishment by direct action of Yahweh. The story of Ananias and Sapphire, in Acts 5 is a very close Parallel. Both cases presuppose that the community itself has not been delegated executive authority to deal with the case

18.

19. Most of the early treatments took this view though there were Questions raised now and then. See Koschaker, "Quellenkritische Untersuchungen z.d. altass. Gesetzen," Mitt. d. vorderas. Gesell., 26 (1921), pp. 16­17

20. Op. cit., pp. 82 ff

21. Cf. the forthcoming Cooke lectures on civil law and customary law by V. H. Lawson to be published in the near future by the Univ. of Michigan Press. The Code Napoleon following the French Revolution is one example

22. "The law code . . . was compiled by one of Telipinus' successors, who continued the process of consolidation begun by his predecessor . . . ." Gurney, The Hittites, Penguin Books (1952), p. 26. The Hittite code also deliberately contrasts older legal customs with those stipulated by the code, another Indication of changes taking place. Ibid., p. 88

23. Cf. Driver and Miles, The Assyrian Laws, 1935, p. 4­12

24. Cf. Jacobson in Intellectual Adventure of Ancient Man, Chicago, 1946, p. 186­191

25. Cardoso, op cit., p. 12

26. To say nothing of regular caravan trade between Mesopotamia and the West. Cf. Landsberger, "Assyrische Handelskolonien." Der Alte Orient, 24, 4 (1925)

27. The code of Bilalama, king of Eshnunna. was found near Baghdad in village administrative offices. See Goetze, "The Code of Bilalama," Sumer, Vol. 4 (1948). pp. 63 and 67

28. For an example of the method and conclusions of the school of literary criticism see Morgenstern, "The Book of the Covenant," Pt. II. Hebrew Union College Annual, Vol. VII (1930). especially pp. 241 ff. and 256 ff. He relents rightly the extreme claims for the influence of Babylonian law upon Israelite law, but goes to the opposite extreme of assuming that modern Bedouin customs are an adequate source for the reconstruction of ancient Israelite culture before the Monarchy (p. 245), in spite of the obvious fact that the most important elements of the Israelite tribes had been sedentary for two centuries before the time of David

29. No legal document has been found which refers to a law of Hammurabi's code. Furthermore, Babylonian language lacks any Idiom which could be translated as "against the law"' or "in accordance with the law," i.e. the written codified law. Landsberger. op. cit., (n. 12), p. 232

30. San Nicolo has pointed out that the Covenant Code gives us a picture of a very small closed community in which commercial law is only hinted at, in contrast to much more "modern," highly developed commercial law presupposed by the code of Hammurabi. Actually there is hardly anything in Covenant Code which would demand a legal unit larger than a village. Beitraege zur Rechtsgeschichte, 1931, p. 77

31. The historical rather than mythological foundation of those narratives is now generally admitted, Cf., de Vaux, "Les patriarches hebreux et les decouvertes modernes. Revue Bliblique, 1946, pp. 321. ff.; 1948. 321 ff.; 1949 5 ff

32. See Gordon, "Biblical Customs and the Nuzu Tables." B.A. III, 1 pp. 1­12

33. Nouuayrol, "Textes de Ras Shamra . . ." Comptes­rendus Acad. d. Inscr. et belles lettres, 1952. p. 181­185

34. Martin Noth is completely right in maintaining that theme laws do not create new customs; that is, they are not legislation. In other words, legal customs gave rise to the laws, not vice versa. Die Gesetze Im Pentateuch, Koenigsberg, 1940, p. 8

35. The parable of Jotham certainly reflects the popular attitude of this period. Judg. 9:7 ff. Cf. Noth, Geschichte Israels, pp. 142 f

36. Noth, Die Gesetze im Pentateuch, p. l0 ff

37. Both these legal acts are last resorts where all other legal techniques have failed through lack of evidence. The very infrequency of references to divine oracle and oath is evidence of the relatively high development of the law. In Egypt oracles are resorted to most frequently at a period when the whole culture was in stagnation and degeneration. Scharff and Seidl, Einfuehrung in aegyptIsche Rechtsgeschichte, pp. 38 f

38. Ex. 22:20; 23:13; 23:12: 21:15, 17. Marriage law is almost completely lacking

39. Jer 2:3 reflects this principle faithfully, though applying it to the community as a whole

40. This is the Issue at Gilgal, (I Sam. 13:8­14). and also in the war against Amalek. (I Sam. 15:17­31). It is not surprising that Saul attempted to introduce the ancient oriental idea of kingship, in which the king was the chief Intermediary between the gods and man. Two generations later the principle was no longer rejected in Israel, when Solomon dedicated the temple, offering sacrifices himself (I Kings 8:62­6 4). Ancient kingship always concentrated religious and political authority in the hands of one man, See Frankfort, Kingship and the Gods.

41. Lev 25:39-43; Deut. 15:12-14. The latter evidently reinterpreted the old "Hebrew slave" law as coming under this problem of the defaulting debtor. He is to remain a slave only till the Jubilee year. The release of debts is a legal custom known in Old Babylonian times and in Greece as well, though it was never a regular periodic system

42. See Absalom's complaint about the failure of David to set up a system of royal Judges, II Sam. 15:3; also the judgment of Solomon, I K 4:16 ff.; Micah 3:1. For royal Judges in Babylon see Walther, Des althab. Gerichtswesen, 1917, pp. 13­20

43. Cf. especially Micah's complaint that the state followed the "statutes of Omri."Morgenstern may be right in attributing to this dynasty a codification of law, but it is certainly not the Covenant Code. From the prophetic point of view the Omri code is the epitome of rebellion against Yahweh. Morgenstern, op. cit., p. 256. Compare Micah 6:16

44. For a discussion of administrative reform see W. F. Albright, "The Reforms of Jehoshaphat," Alex Marx Jubilee Vol., 1950

45. For example, the idea of divine "vengeance." 75% of the occurrences of the term are found in literature coming from Jeremiah to II Isaiah. There are many other phenomena pointing in the same direction

46. See Cardozo. "The Paradoxes of Legal Science." op. cit., p. 254; "The goal of juridical efforts . . . is not logical synthesis, but compromise."

47. It should not be necessary to prove this position. Cf. Luke 12:13­15