Law and Covenant in Israel and the Ancient Near East-- G. Mendenhall
*** Part II -- End Notes ***
1. See especially Eichrodt, Theologie des Alten Testaments I, p. 611. Also Oesterley and Robinson, Hebrew Religion (1937), 1569.
2. Wellhausen, Prolegomena to the History of Israel, trans. by J. S. Black and A. Menzies, Eidenburgh, 1885, p. 417: "Nor did the theocracy exist from the time of Moses in the form of a covenant, though that was afterwards a favorite mode of regarding it. The relation of Jehovah to Israel was in its nature and origin a natural one: there was no interval between Him and His people to call for thought or question. Only when the existence of Israel had come to be threatened by the Syrians and Assyrians, did such prophets as Elijah and Amos raise the Deity high above the people, sever the natural bond between them, and put in its place a relation depending on conditions, conditions of a moral character." Most scholars have followed this position of Wellhausen. See Kraetzschmar, Die Bundesvorstellung im A. T., 1896.
3. This is of course anthropomorphism. However, all religious thought is anthropomorphic: "For how otherwise can man talk with man concerning God? . . . But to say nothing about children, give me the most learned doctor in all the world; how otherwise will even he speak and teach concerning God?" Luther, Worke, Weimar Ed. Vol. XLII p. 12 , (Lectures on Genesis.)
4. Wellhausen, "Israel" In Encyclopedia Britannica, reprinted in volume cited above, p. 432: "Again, it is true that the movement which resulted in the establishment of the monarchy brought together for the first time into organic unity the elements which previously had existed only in an isolated condition; but Israel's sense of national personality was a thing of much earlier origin, which even in the time of the judges bound the various tribes and families together, and must have had a great hold on the mind of the nation. although there was no formal and binding constitution to give it support." It is of course true that there was no political constitution. It is perhaps more possible now than it was in the nineteenth century to conceive of a feeling of unity which was not "national" or political. See also ibid. p. 4389.
5. The "mutuality" of coven an t whereby each party receives as well an gives is a very recent innovation in the law of contract in so far as it In thought to be that which makes the contract binding, and consequently a necessary characteristic of a covenant. See Holmes, The Spirit of the Common Law P. 268. This was never true of contracts made, by goal.
6. Past treatments of the covenant In Israel have been largely based on nomadic Arab customs and patterns of thought. Cf. Pedersen. Der Eid bei den Semiten, and Oesterley and Robinson, op. cit. See also Begrich, Zeits. A. T. Wissensch, 19 (1944), 110 and Bikerman, Arch. d'histoire du droit oriental 5 (195051), who are evidently less confident of the modern Arabic covenant forms and concepts. The latter reference I owe to Professor H. L. Ginsberg.
7. Holmes, op. cit. p. 253: Promises . . . are not binding unless there is a consideration for them.
8. Contracts were probably sealed by oath in early Roman law, but in prehistoric times the oath dropped out as a necessary part of the particular form called the stipulae. See R. Dull, "Zur romischen Stipulatio" Zeits. d. Savgny Stift. F. Rechtsgesch. Romanistische Aat. 68 (1951), 191216.
9. Translation of legal forms from Sumerian to Babylonian are especially well attested. Nocolo, Die Schlusaklauseln der altbabylonischen Kauf - und Tauschvertraege, Munich, p. 32-34.
10. V. Korosec, Hethitische Staatsvertraege, Leipzig, 1931, p. 23.
12. Cf. Albright, Journ. Bibl. Lit. LIX (1940) 316. M. Lehmann. "Abraham's purchase of Machpelah and Hittite Law" BAS0R 129, 15ff. Goetze. Kizzuwatna, p. 37. The writer has no intention of beginning a "panHittite" school of biblical interpretation: he would maintain that in most if not all cases, the Hittite materials simply happen to be the source from which we know customs which were to a large extent common property to many cultures of Palestine, Syria, and Asia Minor, many of which are also attested or indicated in the Amarna Letters.
13. Cf. Albright, From the Stone Age to Christianity, 1823. The writer also has a study forthcoming on the subject; see also. the forthcoming monograph by Moshe Greenberg. Nowhere do we find indications that nomads were equated with 'Apiru.
14. Op. cit.
15. Thucydides mentions treaties which established peace between two states and those which imposed positive obligations between them. The former may have been known also in ancient times. Peop. War IV 117119; V 23.
16. This treaty took place about the same time as the Exodus out of Egypt according to the chronology now most probable.
17. The covenant relationship would of course protect the vassal from capricious attack by the sovereign. This is, however, taken for granted.
18. Even then at least one of the Hittite treaties is ambiguous, Korosec, ibid. p. 67. It follows that the method of Begrich is highly questionable when he attempts to classify covenants on the basis of the terminology used. Op. cit. p, 5.
19. In all the materials we have, the "historical prologue" is missing and only the Assyrian deities are listed as witnesses. The entire pattern is also radically different. It is of course, possible that the form survived elsewhere, but the writer has been able to find no evidence for it. We should also expect that even if it did survive more or less far reaching changes in the form would also have taken place.
20. Payment of tribute without any resulting claim to a reciprocal gift is the criterion of subordination. For the importance of thought-patterns involving exchange of gifts see M. Burrows, The Basis of Israelite Marriage, p. 1113.
21. Frequently the vassal kings of the Hittite Empire were themselves political refugees. Consequently, their obligation was the more real and vivid.
22. ANET p. 204, Compare Deut 7:7 where we have the same emphasis upon the fact that the vassal's power is due solely to his relationship to the sovereign, and that the choice of the vassal is due not to his intrinsic value, but to the sovereign's previous ,commitment to earlier generations.
23. This is in contrast to Assyrian Custom, at least so far as our evidence goes. The deities of the vassal state seem to have been ignored.
24. The Egyptian execration texts may possibly have something to do with formalities for initiating a state of hostility. Such formalities are well known to Rome, see Oost, "The Fetial Law and the Outbreak of the Jugurthine War" Am. Assn. Of Philology LXXV (1954) 147-59. Cf. Also Psalm 2:9.
25. Begrich op. cit. The berit occurs more than 200 times in the Bible, but there may be many references to covenant relationship where this particular term is not used. The terminology connected with covenants in Biblical Hebrew still remains to be worked out.
26. E Bikerman has already pointed out this fact, as well as the similarity to the Hittite treaties. op. cit., p. 153-4.
27. Noth, M. Das System der zwoelf Staemme Isracis (1930).
29. Num 11:4. On this see Albright, Arch, and the Rel. of Israel, p. 99.
30. Compare the tradition of the "meekness of Moses, Num 12:3.
31. Cf. Knudzon, Die ElAmarna-Tafeln, 315:1011: "Whatever the king, my lord has said, behold I guard day and night the word of the king my lord." There are a number of forms by which specific commands of the king are acknowledged. Most frequent of all is the formula. "All the words of the king my lord I have heard." EA 64:18-19 and Passim.
32. Such covenant relations were intimately connected with marriage. This was true of the Hittite suzerainty treaties, of the Amarna treaties between Egypt and other independent states, and is the issue in the proposed covenant between Shechem and the Jacob clans of Gen 34.
33. Of course, outside groups could enter the community by acknowledging the suzerainty of Yahweh, so to speak, in which case they simply became a part of Israel. Thus it is not at all unreasonable to speak of early Israelite religion as a missionary religion (Albright, ARI p. 99), particularly when the Amarna Letters are full of references to various ways in which leaders of a coalition attempted to gain adherents.
34. The "orthodox" attitude is vividly illustrated in EA 262:7-11, Everything which the king does to his land is very very good!" It is not necessary to assume that early Israel was any less able than the vassals of Egypt to conceive of trust in the sovereign as an important obligation.
35. There are several reasons: 1. Later ideas conceived of Yahweh as having sworn. 2. The oath may have been a symboloca act rather than a verbal formula.
36. Die Urspruenge des Israelitischen Rechts. (Reprinted in Kleine Schriften vol. I) p. 68/69.
37. Ibid. p. 62ff.
38. In Greek covenants as well, the earlier ones were for a specific and brief period. Later they were extended over more than a generation and in perpetuity. The "perpetual covenant" seems to be closely connected with the claim to dynastic succession, for a vassal king could bind only his own posterity. In Israel also the term berit 'olam occurs only in connection with the dynasty of David until the Exilic period. For the Greek covenants see G. Busolt, Griechesche Staatskunde, 3. Haelfte, p. 1251.
39. For previous studies see especially Alt, "Die Wallfahrt von Sichem nach Bethel" (KleineSchriften J, pp. 79-88); Noth, Josua, Handb. Z. A.T.
40. Vs. 7a also includes a reference to Yahweh in the third person. However, the same phenomenon is to be found in the historical prologues to the Hittite treaties, and in other categories of ancient oriental literature as well. Such stylistic variants of themselves cannot establish conclusions in literary criticism. It is an entirely different matter when a new person suddenly begins speech in the first person.
41. The variations in detail from the pattern are themselves indications of the historical foundation of the narrative. Certainly it does not follow the rigid pattern of the Deuteronomic historian.
42. Wright, Westminster Historical Atlas of the Bible, p. 93.
43. The response "AMEN" by the assembled congregation is found in the text of Hittite prayers: "And the congregation cries, 'Let it be so!' (Lit: 'Let that thing be.') Gurney, "Hittite prayers of Mursillis II" Annals of Arch. and Anthrop. XXVII (1940) p. 35,37, 116). Alt has suggested that the procedure of Dt 37 belongs to the situation described in Josh 25, Urspruenge. P. 324ff.
44. G. E. Wright. "The Literary and Historical Problem of Joshua 10 and Judges 1," JNES V (1946), 10514.
45. Against Wellhausen and most scholars since. The "national epic" underlying J and E may have had its "Sitz im Leben" in the covenant form and developed as a result of the "renewal" of the covenant by succeeding generations. If there is any truth in this proposition, (and it is no more at present than the statement of an hypotheses) then the literary criticism of the past has been proceeding with completely inadequate form-critical presuppositions. Sea Noth, Geschichte Israels, p. 40.
46. Wellhausen himself proposed rather caustically against the "theological intellectualism, to be "found with special frequency among non-theologians." His own treatment of the covenant idea comes under the same stricture. Cf. op. cit. p. 440 and p. 418: "In this way arose, from ideas which easily suggested it, but yet as an entirely new thing the substance of the notion of covenant or treaty."
47. Jer 7:12 uses the incident to bring home the imminent end of another era.
48. Again in Amarna we have a phrase which indicates a similar independence of political authority. EA 162:13 and many other passages. When a person acts "in accordance with his own desires", he is no longer a faithful servant. The later Biblical writers jumped to the conclusion that absence of king meant absence of law-misunderstanding completely the nature of the covenant.
49. Kingship and the Gods, p. 341.
50. E.g. II Samuel 11 and 12, 24. Solidary responsibility for breach of covenant was still very much alive the sins of the king are visited upon Israel. But this was not a religious idea to which the kingship could long have taken kindly. Only the prophets continued such oldfashioned ideas, and in so doing furnished the foundation for royal responsibility to the people.
51. Vetus Testamentum I (1951), "Das Koenigtum in den Reichen Israel und Juda" p. 20. Dynastic succession in the north did not become established till the time of Omri.
52. Albright, "Primitivism and Related Ideas in Antiquity" Leland Volume. Studies in the History of Culture.
53. It of course vindicated the prophetic position that the fall of the nation was possible under the covenant, but the prophets did not create the idea.
54. The death of Josiah probably seemed to give a new coup de grace to the new discovery, but the historical fact of 587 finally vindicated both prophets and Deuteronomy.