LAW AND COVENANT IN ISRAEL

AND THE ANCIENT NEAR EAST




By



George E. Mendenhall








Part II

Covenant Forms in Israelite Traditions

The names given to the two parts of the Bible in Christian tradition rest on the religious conception that the relationship between God and man is established by a covenant. There is no agreement among scholars concerning the origin of the concept, some assigning it to the work of Moses,(1) and others maintaining that it was the product of prophetic religious thought in the eighth and seventh centuries.(2) Since it is notoriously difficult to reconstruct the history of Israelite religion from the historical traditions preserved in the Bible, some external criterion is necessary for the historian to check his theories.

When the statement is made that religion is based on covenant, it implies that a form of action which originated in legal custom has been transferred to the field of religion.(3) Therefore, a study of the covenant form as we know it in ancient legal documents may possibly serve to bring into the chaos of opinion some objective criteria for reconstructing the course of Israelite history and religion. The real historical problem involved is not one which concerns the preMosaic religious ideas so much as the question of the preMosaic relationships which existed between the various groups who became Israel. If, as Israelite tradition maintained, there were only descendants of Abraham, Isaac, and Jacob, in short a group bound together by bloodties or a clan, then it is not so likely that a covenant would have been necessary to bind them together as a religious group. Rather, as Wellhausen maintained, the original relationship of the group to Yahweh as well as to each other, would have been a "natural" one, and therefore the covenant idea must have been a much later development of religious thought.

It is, however, becoming increasingly difficult to maintain that there were bloodties close enough to bind Israel together or to produce the feeling of solidarity, which has since Wellhausen been described as the preeminent effect of the work of Moses.(4) If those bloodties, kinship, as the basis of Israelite solidarity be given up, it is inconceivable, at least to the present writer, that there could have been, at that time, any other basis of solidarity than a covenant relationship.

If so, then it follows inevitably that the covenant relationship between Israel and Yahweh which is inseparable from the historical solidarity of the tribes, is not merely a stage in the history of religious concepts, but was an event which had a definite historical setting and the most surprising historical consequences. The difficulty in the past has been in arriving at any concept of a covenant which would bind together the tribes and also adequately form a foundation for the normative conception that in this event Yahweh became the God of Israel. Further, there is the problem of the origin of that sense of law and justice, morality and ethic which is so inseparable from the religion of Israel. Finally, there is the problem of Israelite monotheism in contrast to the polytheisms of ancient cultures, and also the relative absence of the do ut des type of religion in which man and deity are business contractors in which each agrees to confer a benefit upon the other - the sort of concept which is the foundation of legally binding contracts today.(5)

These are only a few of the many questions which arise when attempt is made to describe the beginning point of Israelite religion. It is no wonder that thoroughgoing skepticism reigns with regard to the possibility of ever being able to say what the work of Moses was. At the risk of rushing in where angels fear to tread, the writer would suggest that there is a type of covenant preserved in ancient oriental sources which may be of use in arriving at some tentative conclusions concerning all of the problems mentioned above.(6) This is the suzerainty treaty by which a great king bound his vassals to faithfulness and obedience to himself.

The Nature of Covenant

No society compels its members to keep every promise they may make.(7) At the same time the good of society itself demands that certain promises must be followed by performance, and it perfects forms and procedures by which it can guarantee those promises. Those procedures are in the beginnings of law most closely connected with religion, and are known as oaths. As time passes, the oath which is a conditional self-cursing, an appeal to the gods to punish the promiser if he defaults, tends to become merely the constitutive legal form which makes the promise binding. At the present time, the oath is merely an "ancient ruin still standing."(8) When the form is once fixed it tends to have an extraordinary vitality, even though the meaning of the form may no longer be understood.(9) The form is even translated from one culture to another, from one language to another. In such circumstances, the legal procedures of the society actually guarantee contracts - the direct intention of the gods to punish the offender can hardly be said to be the real foundation of faithfulness to a contract. The oath may actually disappear, and other elements will enter in to produce a legal form which the society or its law will recognize as one which is binding.

It is particularly in the realm of international relations that covenants upheld by oath continued as a binding form, for it is in this realm of human relations that adequate legal procedures (i.e., nonmilitary) for enforcing promises are most difficult to find. References to International (i.e., intercitystate) covenants occur already in Old Sumerian texts of the third millennium B.C.,(10) and it would seem likely that covenants upheld by oath must go back many centuries if not millennia before. Consequently, it is not surprising that international covenants had developed a specialized form of their own in Babylonia and Assyria, which do not have any direct relationship to the forms known in ordinary business or private legal contracts. Probably by the accidents of transmission or excavation, we have adequate source material for studying international covenants only from the Hittite Empire, 14501200 B.C. This material is invaluable for our purposes, since it is contemporary with the beginnings of the people of Israel. The seemingly farfetched procedure of comparing Hittite and biblical material becomes less so when three facts are kept in mind:

  1. It seems certain that the Hittites themselves did not originate the covenant form which we shall discuss. Rather, there is abundant indication that they themselves borrowed the form from the East,(11) i.e., ultimately Mesopotamian sources, and consequently it must have been common property of any number of peoples and states in the second millennium B.C. It is by its very nature an international form.

  2. Many of these covenants were made with peoples of Syria itself. Among others we have covenants with Aziru, his son, and his grandson referred to or preserved for us in the Hittite archives. The same form was used for concluding a treaty with Egypt. In view of the fact that Israelite traditions now vindicated indicate close relationships between the preMosaic peoples who became Israel and northern Mesopotamia, abundant opportunity to become familiar with the treaty form must be admitted for ancient Israel.

  3. Other completely independent parallels between the Hittite and Biblical materials have already been pointed out.(12)

The most cogent argument against the possibility of Israel's knowledge of this particular covenant form is based only upon the assumption that the pre-Mosaic tribes were much too primitive a group either to know or to understand such a highly developed form. This, however, is merely an hypothesis which more than ever today needs to be proven before it can be accepted. Indeed, there is increasing reason to doubt that the tribes in question can at all be regarded as typical nomadic tribes. The alleged parallels to bedouin Arab tribes can no longer be point of departure for understanding biblical traditions, particularly since nomadic groups of the second millennium B.C. did not have, and could hardly have had the independence of the Arab camelnomads. The Amorites in all our historical sources are in contact with high civilizations - and frequently in covenant relations with them. But Abraham is not a typical nomad, nor is Jacob. They are described in biblical traditions as Hebrews - i.e., outsiders(13) who have no legal status, and as heads of roving bands who have covenant relationships with the city-states of Palestine.

The Hittite covenants have been very carefully analyzed by V. Korosec(14) with the following results. The covenants are not all of a single type, but are rather to be classified as suzerainty treaties or as parity treaties.(15) The basic difference between the two is that in the former, only the inferior is bound by an oath - the vassal is obligated to obey the commands stipulated by the Hittite king. In the latter, both parties are bound to obey identical stipulations. The suzerainty treaty is the basic form, since the parity treaties are in effect two treaties in opposite directions, i.e. each king binds the other to identical obligations. The famous treaty between the Hittites and Egypt during the reign of Ramses II is the classical example. (16)

The primary purpose of the suzerainty treaty was to establish a firm relationship of mutual support between the two parties (especially military support), in which the interests of the Hittite sovereign were of primary and ultimate concern. It established a relationship between the two, but in its form it is unilateral. The stipulations of the treaty are binding only upon the vassal, and only the vassal took an oath of obedience. Though the treaties frequently contain promises of help and support to the vassal, there is no legal formality by which the Hittite king binds himself to any specific obligation. Rather, it would seem that the Hittite king by his very position as sovereign is concerned to protect his subjects from claims or attacks of other foreign states. Consequently, for him to bind himself to specific obligations with regard to his vassal would be an infringement upon his sole right of self-determination and sovereignty.(17) A most important corollary of this fact is the emphasis upon the vassal's obligation to trust in the benevolence of the sovereign.

It is most important to observe that the Hittite treaties cannot be classified on the basis of terminology alone. It is only by the examination of the text of the covenant that a classification can be carried out.(18) The question which immediately faces us therefore, is whether or not we have any historical or legal traditions in the Bible which can be identified as preserving the text of the covenant between Yahweh and Israel. The writer submits that we do have such traditions, in fact three different bodies of material in the books of Exodus, Deuteronomy, and Joshua are directly connected with this legal tradition. In addition, innumerable incidents and ideas in the entire history of Israel can be adequately understood only from this complex of covenant patterns of thought. This covenant type is even more important as a starting point for the study of Israelite traditions because of the fact that it cannot be proven to have survived the downfall of the great Empires of the late second millennium B.C. When empires again arose, notably Assyria, the structure of the covenant by which they bound their vassals is entirely different.(19) Even in Israel, the writer submits that the older form of covenant was no longer widely known after the united monarchy, though its characteristic features continued to play an important part in the later development of religious ideas, especially in the prophets.

The Structure of the Covenant

The very highly developed Roman legal system never had a single general term for contract in spite of the fact that it had a number of well known contract forms. Similarly, the Hittite language, and the Babylonian as well, never had a single word for contract or covenant. In both languages the covenant was designated by a phrase which would be translated literally as "oaths and bonds." The covenant is regularly spoken of as that which the sovereign gave to his vassal - it is the sovereign's covenant. He is the author. The specific obligations imposed upon the vassal are called the "words" of the sovereign, for to speak is to command when the great king delivers utterance. Yet, as we shall see, it is not the command from a position of power, but something radically different which is the real motivation for obedience.

Here we shall give a brief resume of Korosec's juristic analysis of the covenant form. Nearly always the following six elements will be found in the Hittite treaty texts, but it must be emphasized that the form is not an extremely rigid one. Rather, there is considerable variation in the order of the elements as well as in the wording. Occasionally, one or another of the elements may be lacking, whether by design or accident it is difficult to say.

  1. Preamble: Begins with a formula "thus (saith) NN, the great king, king of the Hatti land, son of NN . . . the valiant." This identifies the author of the covenant, giving his titles and attributes, as well as is genealogy. The emphasis is upon the majesty and power of the king, the Sun, who confers a relationship by covenant upon his vassal.

  2. The historical prologue: This part of the treaty describes in detail the previous relations between the two. In the suzerainty treaties great emphasis is placed upon the benevolent deeds which the Hittite king has performed for the benefit of the vassal, and such a narrative is never lacking in texts which have been completely preserved. They are emphatically not stereotyped formulae, as one might expect, but are rather such careful descriptions of actual events, that they are a most important source for the historian. In the parity treaties, on the other hand, the historical prologue is more brief, for the obvious reason that frequently the previous relationships between the two was of such a sort that little good could be said, and neither could be regarded as the recipient of gifts which bound him to obedience. This section of the treaty is not mere embroidery, but a most important element, for, as Korosec says: "What the description amounts to is this, that the vassal is obligated to perpetual gratitude toward the great king because of the benevolence, consideration, and favor which he has already received. Immediately following this, the devotion of the vassal to the great king is expressed as a logical consequence." In other words, the mutuality of covenant is present even in these treaties, but it is most important to see that the vassal is exchanging future obedience to specific commands for past benefits which he received without any real right. Since, to receive a gift without becoming obligated is a prerogative only of the emperor,(20) the actual position of relative strength - that is, the inability of the vassal to defend himself from overwhelmingly superior power is a fact which deprives him of any ground which would enable him to escape obligation to an overlord who has granted him a boon - frequently of kingship itself.(21)

    A striking formal characteristic of this section is the "I-Thou" form of address. Since the Hittite king is the author of the covenant, he speaks in the first person directly to the vassal. As is the case in so much of ancient oriental stylistic features, the "I-Thou" form does not exclude entirely the address in the third person, but this latter is much more rare. The covenant form is still thought of as a personal relationship, rather than as an objective, impersonal statement of law. Some illustrations which occur in the historical prologues show striking parallels to Israelite patterns of religious thought:

    "Since your father had mentioned to me your name with great praise (?), I sought after you. To be sure, you were sick and ailing, but although you were ailing, I, the Sun (god), put you in the place of your father and took your brothers (and) sisters and the Amurru land in oath for you."(22)

  3. The stipulations: This section states in detail the obligations imposed upon and accepted by the vassal. They include typically, a. the prohibition of other foreign relationships outside the Hittite Empire; b. prohibition of any enmity against anything under sovereignty of the great king. The parity between the vassals, created by the Hittite king, must not be changed. One cannot be a slave or dependent of another. Every hostile action against a covassal is hostility against the king himself, and the king promises to take the part of the oppressed. c. The vassal must answer any call to arms sent him by the king. To fail to respond is breach of covenant (Cf. Judg 21:8 ff.). d. The vassal must hold lasting and unlimited trust in the King; he must not entertain malicious rumors that the King is acting disloyally toward the vassal ("since man is depraved"), nor must he permit any evil words against the King, for this is the beginning of rebellion. e. The vassal must not give asylum to refugees from any source (there are many variations in detail concerning refugees, but this was evidently treated as a very serious problem). f. The vassal must appear before the Hittite king once a year, probably on the occasion of annual tribute (Cf. Ex. 23:17). (Later treaties lack the personal appearance stipulation - the interest seemed to shift primarily to the tribute). g. Controversies between vassals are unconditionally to be submitted to the king for judgment.

    These stipulations give an indication of the interests of the king which were protected by covenant. It should be pointed out that there is almost no hint of interference in the internal affairs of the vassal state. The vassal could rule as he saw fit, and the only concern of the Hittite king was, naturally enough, in the succession to the throne of an heir who would remain faithful. The right to determine succession was not considered an automatic privilege or right of the vassal, but was a specific privilege granted by the Hittite king.

  4. Provision for deposit in the temple and periodic public reading: This is almost selfexplanatory. Since it was not only the vassal king, but his entire state which was bound by the treaty, periodic public reading served a double purpose: first, to familiarize the entire populace with the obligations to the great king; and second, to increase the respect for the vassal king by describing the close and warm relationship with the mighty and majestic Emperor which he enjoyed. Since the treaty itself was under the protection of the deity, it was deposited as a sacred thing in the sanctuary of the vassal state - perhaps also, to indicate that the local deity or deities would not and could not aid in breach of covenant.

  5. The list of gods as witnesses: Just as legal contracts were witnessed by a number of people in the community, so the gods acted as witnesses to the international covenants. In the written text, this section enumerates the deities who were invoked, usually a considerable number. Included are of course the gods of the Hittite state, but the pantheon of the vassal state is also included. In other words, the gods of the vassal themselves enforce the covenant, (Cf. Ezek 17:1221).(23) Most interesting for the purposes of this paper, however, is the inclusion of the (deified) mountains, rivers, springs, sea, heaven and earth, the winds and the clouds. (Cf. Dt32:1; Isaiah 1:2).

  6. The curses and blessings formula: In some ways this is the most interesting feature of the covenant. The treaty stands wholly within the realm of sacred law, so to speak, for the only sanctions for the covenant are religious ones. It goes without saying that in case of breach, the Hittite king would proceed against the vassal with military forces, possibly as the agent by which the divine curse is brought down upon the vassal, but of this there is no word in the treaties. The curses and blessings in the texts are treated, on the other hand, as the actions of the gods, and enumerate much the same sort of things as those to be found in Deut 28.

Other Factors in the Covenant

Thus far we have described the written text of Hittite treaties. We know that other factors were involved, for the ratification of the treaty did not take place by the mere draft in written form. So we must add:

7. The formal oath by which the vassal pledged his obedience - although we have no light on its form and content; and>

8. Some solemn ceremony which accompanied the oath, or perhaps was a symbolical oath. Again we know nothing for certain of this, though Hittite texts do describe for us the ceremony by which Hittite soldiers bound themselves to obey the king. Finally>

9. It is quite likely that some sort of form existed for initiating procedure against a rebellious vassal.(24)


All told, we then have nine different elements involved in the complex covenant relationship familiar throughout the Mediterranean coastal lands in the period before the time of Moses. It must be emphasized again, that this particular structure of covenants is not attested for any other subsequent period. Though it is to be expected that survival of the form outlasted the Hittite Empire, it is perfectly clear that the home of this form is in the second millennium B.C. and cannot be proven (outside Israel) to have survived elsewhere.


Covenant Forms in Israel

It is well known that biblical traditions preserve for us a number of references to covenants of different sorts.(25) There are only two traditions, however, which fall into the form described above, The first is the Decalogue, and the second is included in the narrative of Joshua 24, With the materials presented above, it can readily be seen that the covenant with Abraham (and Noah) is of completely different form. Both in the narrative of Gen 15 and 17, and in the later references to this covenant, it is clearly stated or implied that it is Yahweh Himself who swears to certain promises to be carried out in the future. It is not often enough seen that no obligations are imposed upon Abraham. Circumcision is not originally an obligation, but a sign of the covenant, like the rainbow in Gen 9. It serves to identify the recipient(s) of the covenant, as well as to give a concrete indication that a covenant exists. It is for the protection of the promisee, perhaps like the mark on Cain of Gen 4.

The covenant of Moses, on the other hand is almost the exact opposite. It imposes specific obligations upon the tribes or clans without binding Yahweh to specific obligations, though it goes without saying that the covenant relationship itself presupposed the protection and support of Yahweh to Israel.(26) Since there is increasing difficulty in assigning the covenant to postmonarchial times in Israel, it may be worthwhile to trace the meaning and function of the Decalogue in the history of Israel, emphasizing, however, that what follows in these pages is probably one possibility among others which may not have presented themselves to the writer.

Several facts about the early history of Israel are well accepted.

All these elements in the traditions of Israel hold together and indeed make sense only on the supposition that there actually was a covenant relation at the basis of the system. The federation itself is almost certainly an adaptation of political devices which had been used by the peoples of Palestine and Syria for centuries before. It was the only way in which small political groups could have any hope at all for selfdetermination in the face of much more powerful enemies. In the 15th century a federation whose center was in central Syria fought Tuthmosis III at Megiddo in Palestine. In the Amarna Age federations of Canaanite city states were attempting (and evidently succeeding) in throwing off the yoke of Egypt To come down to much later times, as late as the time of Ahab a similar federation fought the Assyrians to a standstill at the battle of Qarqar in northern Syria, and in the days of Isaiah both Damascus and Judah attempted to form a similar federation against Assyria. The question which faces us is why the Israelite federation had such a lasting influence, while the others evidently fell apart in a short time.

A partial answer (and any answer is bound to be only partial) is to be found in the circumstances accompanying the formation of the covenant community, and even more in the content of the covenant itself. The clans who left Egypt under the leadership of Moses were of diverse background with perhaps a nucleus who traced their origin back to Jacob. Others are called in Numbers(29) a "mixed multitude." In the desert, as also in Egypt, the entire group had no status in any social community large enough to ensure their survival. Therefore, they were formed into a new community by a covenant whose text we have in the Decalogue (granting, of course, that in the present form later materials are included). Contrary to the usual procedure, the Israelites did not bind themselves by oath to obey Moses as their leader.(30) Instead, following the form of suzerainty treaties, they were bound to obey certain stipulations imposed by Yahweh Himself. Moses' role in the whole proceeding is described merely as that of messenger - who is himself not a party to the covenant. The structure of the covenant is again the same: the delivery from Egypt was the first event in the previous relationships between the two parties, and this is the historical prologue which establishes the obligation of Israel to their benefactor. In return, they obligate themselves to obey the stipulations of the Decalogue. (Ex 19:8 is not a prediction of fact, but a formula by which they acknowledge their obligation. Precise parallels to the statement are to be found in the Amarna letters.(31)) There follows a solemn ceremony which by act puts the covenant into effect, though the traditions are not clear on this point. One ceremony is the sprinkling of blood upon altar and people, another is the banquet in the presence of Yahweh. In effect, then, each clan became a vassal of Yahweh by covenant - and at the same time bound to each other in a sacred truce. No clan was sovereign, and at the same time, the terms of the covenant left each clan free to regulate its own affairs so long as the religious covenant obligations were protected. The unity of which we spoke was further enhanced by the fact that they evidently had no other political ties, but most important, was the fact that the first obligation of the covenant was to reject all foreign relations - i.e. with other gods, and by implication, with other political groups.(32) It meant that they could not make covenants with their neighbors either in the desert or later in Palestine for to do so would be to recognize the pagan deities as witnesses and guarantors of the covenant.(33) In view of the great variation in the attitude toward foreign nations throughout Israelite history, it would seem that from the earliest times on, there was a difference of opinion in the interpretation of this obligation. The traditions concerning the patriarchal refusal to become assimilated to their Canaanite neighbors may very well have played a part in the postMosaic refusal of complete assimilation. The terms of the covenant, however, did leave them free to take over as much of Canaanite culture as seemed good - even such central features of the later religion as the sacrificial system. This freedom in internal affairs also permitted great cultural variations between the various tribes - which became so great a centripetal force during the monarchy, and even long before.

It is not only the Decalogue itself, however, which is illuminated by this covenant form. The tradition of the deposit of the law in the Ark of the Covenant is certainly connected with the covenant customs of preMosaic times. Though scholars may no doubt be very dubious about admitting the historicity of the tradition for the time of Moses, yet as we have seen, it is perfectly in keeping with what we know was customarily done in the time of Moses, especially in view of the fact that the arc was a portable sanctuary.

The traditions of the "murmurings" in the wilderness is also a motif which receives new meaning in the light of the covenant. It is frequently to be observed that in a "natural religion" the devotee may address his god in most outrageous terms, blaming, threatening to the verge of blackmail, but on the contrary such actions do not seem to be characteristic of the early religion of Israel - it is only after the centuries have rolled past to the time of Job that we find such vehement reproach of deity. A covenant relationship is much too delicate and sensitive a matter to bear "evil words," and just as in our Hittite sources, such action is breach of covenant, which leaves Yahweh free to destroy the culprits.(34)

This does not by any means exhaust the parallels between the Mosaic traditions and the extra-Biblical treaties. The differences between the two bodies of material must also be taken into consideration. As a cursory examination of the Decalogue will show, the last three elements of the Hittite form are lacking. We do not have in the text of the Decalogue any provision for deposit in the sanctuary and periodic public reading; we have no list of witnesses, nor the curses and blessings except in the prohibition of other deities, and the demonstrably later addition to the Command to honor father and mother. Even these are not, strictly speaking, curses and blessings. Finally. so far as the writer has been able to determine, there is no reference to an oath as the foundation of the covenant relationship.(35) The list of witnesses need cause no difficulty, for in the very nature of the case, it would be impossible to appeal to any other third party as a guarantor of this covenant between Yahweh and Israel. Significantly enough, however, later materials do make poetic use of this legal pattern in spite of the fact that they really do not succeed in walking on all fours, so to speak. I refer to the appeal to the heavens and earth, mountains and hills, either as witnesses or as judges in the controversy between Yahweh and Israel when Israel is indicted for breach of covenant.

In similar fashion, though there is no curse and blessing formula in the Decalogue itself, this is a most important and most early part of Israelite "legal" tradition, as Alt has long ago pointed out.(36) But, as we've seen, the curse and blessing formula is itself inseparably connected with covenants: this one means through which new "legislation" became binding in the ancient world (Cf. Jer 34:8ff), though it is hardly to be denied that the solemn action continued as a religious rite, reaffirming the obligation long after the community had actually incorporated the matters involved into its system of customary law, and possibly even after the customary law had ceased to be concerned with them. As the tradition in Deuteronomy indicates, the curses and blessings may not have been regarded as an element in the text of the covenant, but as an action which accompanied the ratification of the covenant. For further suggestions on this point see below.

Finally, the provision for public periodic reading of the covenant also lacking in the Decalogue itself, is likewise a most persistent element in the Israelite traditions.(37) Here we are faced with two possibilities which must he distinguished. One is the matter with which we have already dealt - that covenants were to be publicly read at periodic intervals. This varied from once to three times a year in the Hittite Treaties. There is, however, another possibility. Since covenants were to be regarded as binding in perpetuity from the first,(38) a renewal of the covenant would be from time to time necessary. The posterity of the vassal, together with the populace over which he ruled, may not have regarded themselves as bound, since they had not been taken under oath. It was customary, upon the death of the vassal king, to draw up a new covenant with the heir, bringing the historical prologue up to date, and the stipulations as well. The covenant renewal ceremonies referred to in Deuteronomy could be this sort of thing, whereby a new generation was formally bound. It would be a mistake, however, to maintain that the death of the earlier generation freed the later one from any covenant obligation.

The Covenant of Joshua 24

This passage is inserted into a narrative which obviously includes later materials.(39) Consequently, we cannot be sure that we have the text (whether actually written or oral is beside the point) of the covenant which was ratified on the occasion described in this chapter. It is quite striking, however, that the form of the action is precisely that which we have outlined. The introductory formula identifying the author of the covenant (2b), the historical prologue in the "I-Thou" form which includes some unique traditions as to the early history of Israel. At the end of the historical prologue in the "I-Thou" form, the stipulations are missing, for with vs. 14, Joshua suddenly speaks in the first person, and Yahweh is referred to in the third person.(40) The only stipulation referred to is the putting away of other gods - which was the foundation of all other obligations. This we see in the oath formula in vs. 16, which recapitulates this stipulation, and is followed by a similar summary of the historical prologue. In the sequel, 21ff, the people themselves are the witnesses to the covenant, the stipulations are referred to in vs. 25, the writing and deposit of the covenant in the sanctuary, another witness (the great stone) - and again the curse and blessing formula is not present.

It is very difficult to escape the conclusion that this narrative rests upon traditions which go back to the period when the treaty form was still living, but that the later writer used the materials of the tradition which were of importance and value to him, and adapted them to his own contemporary situation.(41) The formation of the covenant in Palestine is itself precisely what we should expect. The traditions are insistent upon the fact that there was a discontinuity between the generation of Moses and that of Joshua - only Joshua himself and Caleb survived the wilderness period. There was, furthermore, not only a new generation, but the amalgamation with groups already in Palestine, probably because there was a tradition of kinship common to the groups involved, at least in part.(42) Consequently, there was a new covenant formed - that which became the basis of the federation of tribes. There is no indication in Joshua 24 that it was a continuation of the Mosaic covenant except in the historical prologue. The desert covenant as such was not relevant to this situation (and is not mentioned), for the people involved and the entire cultural situation were both so different that it was in everything except form, an entirely new covenant. The continuity cannot be traced primarily because the narrative does not include stipulations other than that which is by far the most important characteristic of all covenants we know of this type, i.e. the prohibition of foreign relations - other gods. Possibly there were no others - though this would seem extremely unlikely. it is also possible that the stipulations of this covenant have been taken up in the Covenant Code, though the latter cannot be identified with the missing stipulations of Joshua 24 for the simple reason that the Covenant Code does not deal with the sort of matters which would have been absolutely necessary for a federation -- it belongs rather to a local political or legal unit of society. The curses of Deut 27 would fill in the gap of 4Joshua 2 beautifully,(43) so far as they go, but the sort of stipulations which we should expect from extra-Biblical treaties are lacking in the entire corpus of law. These include the provision for extradition of refugees from one tribe to the other (the writer feels that the traditional "cities of refuge" are somehow a substitute for this), the prohibition of war of one tribe upon another, and the obligation of mutual support in warfare against a foreign power. These problems underlie many of the narratives in JoshuaSamuel and must be investigated further, but here it can only be said that in all likelihood the stipulations of the federation covenant have been lost. On the other hand, it is here submitted that the history of Israel before the monarchy can be understood and reconstructed only on the assumption that a covenant did exist.

Before discussing the later history of the covenant form, some further observations are in order. We have seen that the historical prologue furnishes the foundation of obligation and the motivation for accepting the stipulations of the covenant as binding. Joshua 24 gives us a most interesting illustration of the development of this part of the covenant. Here the delivery out of Egypt is not the only motif in the previous relations between Yahweh and Israel. Instead, the previous relationship is pushed backward in time to include the patriarchal period (passed over in the Decalogue), which was already a part of the historical traditions of the clans entering the covenant. These events became identified with those actions of Yahweh which establish obligation, and consequently, it became necessary to identify Yahweh with the God of the fathers, as in Ex 3 and 6. At the same time, the actions of Yahweh are brought down to the immediate past of those who were entering the covenant - and the last incident may very well have been the defeat of a coalition of Palestinian kings such as that described in Joshua 10.(44) It refers neither to Philistines, nor to the various kings of Northern Palestine, which again indicates an independence from the Deuteronomic reconstruction of Israelite history according to which Joshua led the battle which resulted in the defeat of the northern coalition of Canaanite kings.

This is not the place to discuss the problems involved in unraveling the historical traditions. The point which is to be made here is the fact that the covenant form itself furnished at least the nucleus about which the historical traditions crystallized in early Israel. It was the source of the "feeling for history" which is such an enigma in Israelite literature. And perhaps even more important is the fact that what we now call "history" and "law" were bound up into an organic unit from the very beginnings of Israel itself.(45) Since the cultus was at least connected with the covenant proclamation or renewal, we can see that in early Israel, history, cultus, and "law" were inseparable, and that the history of Israelite religion is not the history of the gradual emergence of new theological concepts,(46) but of the Separation and recombination of these three elements so characteristic of Israelite religion, over against the mythological religions of their pagan neighbors.

The Breakdown of the Covenant Form

The fall of Shiloh to the Philistines foreshadowed the end of an era.(47) No longer could the religious federation with its loose organization suffice to hold back the more efficient Philistine invaders. The reorganization of the Israelite tribes became so widely felt a need that the demand for a king could no longer be resisted. In the establishment of a monarchy, the older religious traditions were both a tremendous asset in the feeling of unity they produced, and a tremendous liability in the very independence and autonomy under Yahweh which they fostered. The monarchy had to maintain the continuity of Israelite religious traditions, and at the same time suppress, ignore, or alter certain characteristics most closely associated with them. It is not surprising that the first king fell victim to the extreme difficulties involved. It was David who worked out a modus vivendi so successfully that his reign was always regarded as the Golden Age (which was to be reestablished in the hopes of later generations), in spite of the fact that Solomon ruled in much more glory. It was no longer possible under a king for each man to do "what was right in his own eyes" - the formula which amounted to the ancient Declaration of Independence.(48) What was done eventually was the separation of the historical and legal traditions. The historical prologue of the covenant was taken over for the support of the Monarchy - thus the "nationalistic feeling" which has often been noted in the "J" document. The stipulations of the covenant were not really relevant, for political organization and the monarchy were now the foundation of social obligation - though it goes without saying that legal custom affected as it was by the religious imperatives of earlier periods contributed greatly to the content of the law of the monarchy. The direct religious obligations to Yahweh were no longer of a sort which could give rise to a popular conflict with the official law of the state; instead they were redefined in purely cultic terms (Exodus 34:). This does not mean that moral, social, and legal obligations were secularized; it means merely that there was no longer the right of self-determination in these matters for each community (Dent 12:8). The political demands and needs of the new state had to take precedence over the felt religious obligations of the individual, clan and village. This in turn meant that the state had to have powerful religious backing. One of the various ways in which that was secured was by taking over the concept of a covenant relation.

The king was made king by covenant. Though we do not have details enough to analyze its form, there can be no reasonable doubt that Israel was bound by oath to acknowledge and obey the king, with Yahweh acting as witness. It was thus, as Frankfort has pointed out, relatively secular in origin, no more religious in essence than a Babylonian business document guaranteed and sealed by an oath formula, or a modern court proceeding with the witness "sworn in."(49) This, however, was insufficient. Yahweh as witness could hardly be expected to punish Israel for a breach of covenant if the king demanded something which was in flagrant violation of all religious tradition.(50) Therefore, during the Monarchy and according to every indication we have in the time of David, the tradition of the covenant with Abraham became the pattern of a covenant between Yahweh and David, whereby Yahweh promised to maintain the Davidic line on the throne (II Sam23:5). Yahweh bound Himself, exactly as in the Abrahamic and Noachite covenant, and therefore Israel could not escape responsibility to the king. The covenant with Abraham was the "prophecy" and that with David the "fulfillment."

This was evidently accepted in the South, but not in the North.(51) The Davidic covenant became normative in Judah - and may have been eventually in the North as well, though it never succeeded in producing the stability of a single dynasty on the throne. The original center of the old Federation, understandably enough, evidently preserved far more of the old Mosaic covenant traditions. It is for that reason that so much of the evidence for these traditions is dependent on Deuteronomy and related works. It is, likewise, not surprising that J does not seem to emphasize the Mosaic covenant - the important one was that which Yahweh gave to Abraham. The Mosaic legal tradition could hardly have been any more attractive to Solomon than was to Paul.

With this situation in mind, the prophetic silence concerning the covenant becomes explicable. The normative covenant idea in their time was one which could not be used:

Whether or not the prophets of the eighth century were completely aware of the nature of the Mosaic covenant (at least as it has been described here!), it is certainly true that their messages are completely in harmony with its basic structure. Their messages are in the nature of an indictment for breach of covenant, but they had to use every figure and device to convey their message than that to which their message really related. To give only a few points:

  1. The Prophetic "I-Thou" is a continuation of the covenant form of address.


  2. The contrast drawn between Yahweh's precedent acts of benevolence and Israel's disobedience means the bringing of the curse - and the curses under the covenant always include destruction of the state.


  3. The violent attacks on sacrifice and emphasis on "ethic" presupposes that the real religious obligations are of social and moral nature exactly as in the Decalogue and in the days of the Federation when religious sanctions were the only ones upholding the unity of the tribes and legal actions.


  4. The rejection of the political boundary between Israel and Judah as significant religiously goes back to the religious federation.


  5. The association of history and ethical obligation is of course indication of the same continuity of the Mosaic pattern.

These are only a few of the points of similarity. It is not to deny that the prophets were capable of originality - it is praise enough to say that they did not condemn everything that had happened since the fall of Shiloh in the attempt to bring back the "good old days" of the amorphous Federation.

The Rediscovery of Moses

The premonition of the end of an era so effectively expressed in the Israelite prophetic writings was shared by ancient oriental empires as well In Egypt and Babylonia there were attempts to recreate the Golden Age of the past at the very time Jeremiah was appealing to the past to justify his views of the future.(52) In the eighteenth year of king Josiah a "book of the law" was discovered in the Temple at Jerusalem. The impact of this find was phenomenal. Josiah upon hearing the book read tore his garments; a thorough housecleaning was carried out to do away with the pagan cults in his territory. The king together with the people entered into covenant (before the Lord: i.e., with Yahweh as witness, not as a party to the covenant) to keep the commandments of the Lord. The book of the law is universally regarded as that incorporated in what is now Deuteronomy. But could the laws of Deuteronomy by themselves have had such a profound effect? It is highly questionable whether the content of Deuteronomy law was really so new and unfamiliar that the simple reading of the commands would have resulted in such a reform. It is here suggested that what was rediscovered was not old legislation, but the basic nature of the old amphictyonic covenant. It brought home to Josiah and the religious leadership that they had been living in a fool's paradise in their assumption that Yahweh had irrevocably committed Himself to preserve the nation in the DavidicAbrahamic covenant. Moses was rediscovered after having been dormant for nearly three and a half centuries. The commands of the religious law had a new urgency behind them when it was seen that the covenant provided for curses as well as blessings (II Kings 13).(53)

Still the achievements and ideas regnant for centuries could not be easily displaced.(54) The new had to be fitted into the framework of the old. The covenant of Moses had to be harmonized with the covenant Abraham, and this was done, perhaps gradually in the years and centuries which followed. The book of Deuteronomy itself gives some very interesting phenomena. Here in the covenant (except in the Decalogue, of course) it is no longer Yahweh but Moses who speaks in the first person. Moses becomes a kingly type to whom Yahweh has entrusted legislative matters, and to whom the law is given directly, just as the authority in law rests ultimately with the king from David and Solomon on - as a Supreme Court. This is felt to be a change in the original situation, but a necessary and inevitable one. The motivation for it was attributed not to the royal urge for power, but to the religious awe of the people themselves: "For this great fire will consume us; if we hear the voice of the Lord our God any more, we shall die . . . Go near, and hear all that the Lord our God will say; and speak to us that the Lord our God will speak to you; and we will hear and do it." (Deut 5:2533) In this way the traditions of an original direct command of God were harmonized and merged with the fact that the monarchy had developed customary law with an ultimately religious foundation giving it divine authority. The necessity for a religious motivation for obedience to the laws of society was merged with the tradition of direct and immediate responsibility to divine command under covenant, and place was made for the authority of political leadership while at the same time making that leadership responsible to religious tradition. It was a most amazingly successful creative adjustment, preserving what was of value both in the old and the new. The direct religious responsibility was strong enough to preserve the religious community in spite of complete destruction; at the same time it did not result in thoroughgoing anarchy and individualism so that the same religious impulse could undergird the formation of a new political unit after the Restoration.

The reestablishment of the old traditions of course did not and could not have reinstated the conditions of the period before the monarchy. It is not easy in a highly sophisticated and cosmopolitan period to define so easily the acts of God which impose obligation. It was more and more the future and the remote past which was the basis of obligation. Thus the Deuteronomic philosophy or theology of history became in popular thought at least a caricature of the original structure of religion. The correlation of obedience and blessing, disobedience and curse characteristic of early covenant relations became a cosmic principle - in fact tended to become a myth - "the divine cosmic pattern to which all life shapes itself." Since this was an inevitable law of the universe all wellbeing depended upon knowledge and obedience to the law in order to receive the blessing instead of the curse. Israelite religious leadership was always too profound in insight to fall into this trap which would have reduced religion to a commercial transaction. In addition, historical event suffering - made this solution impossible for the pious individual, as Illustrated in the book of Job.

The harmonization of the two covenant traditions meant that great emphasis had to be placed upon the divine forgiveness, and this becomes the foundation of the New Covenant predicted by Jeremiah. It is only this that could harmonize the fact of human breach of covenant with the divine promise to protect and preserve Israel. It is this which is then placed at the very center of both Judaism and New Testament religion. The New Covenant of Christianity obviously continued with the tradition of the Abrahamic-Davidic covenant with its emphasis upon the Messiah, Son of David. Paul uses the covenant of Abraham to show the temporary validity of the Mosaic covenant, but in spite of this, the basic structure of New Testament religion is actually, as the early church constantly maintained, the continuation of Mosaic religion. It is historical event which establishes obligation; the preceding act of God which confers a benefit upon the individual and the group both forms the motivation and ground for a lasting relationship by covenant, and at the same time brings about a willing obedience to the divine command. There is of course vast difference in detail. The benefit is not of political nature, but of religious. The delivery from bondage by the act of God is not from a political oppression, but from the bondage to sin. The obligation, consequently, is not to a new political (case) law, but to a sort of duty which is not bound to any culture or state. The religious community itself is not the nucleus of a new culture or political unit, but one whose "citizenship is in heaven." The curses and blessings are not reducible to an historical correlation of obedience and prosperity, disobedience and calamity, for they are eschatological - to be imposed at the end of time. The covenant is solemnly established not in the setting of a majestic phenomenon of the power of God in nature, but in the insignificant gathering of a small group in an upper room. The covenant given is not a mythical presentation of a timeless, divine, cosmic process, but is an historical event whereby the disciples are bound together with their Lord as the new Israel - the new Kingdom of God. The new stipulations of the covenant are not a system of law to define in detail every obligation in every conceivable circumstance, but the law of love.

Epilogue

The later history of the covenant falls within the field of church history, and will not be dealt with here. It is hoped that this discussion of a very ancient religious and legal form may have some correspondence with reality. It may also help to show the issues involved in the extremely long and complex history of two opposing concepts of religion which come into conflict in biblical religion at the beginning of the monarchy, and which opposition continues to the present day. On the one hand there is the emphasis on experience of the past as the foundation of obligation, the emphasis upon direct responsibility to God, upon freedom and self-determination -- all of which, degenerating, leads to chaos. On the other hand the emphasis upon stability and continuity, the attempt to reduce the actions of God to a readily communicable and comprehensible system, the preservation of a particular cultural pattern and the establishment of authority to hold in check the unpredictable and disruptive tendencies of undisciplined humanity -- all of which may also degenerate and lead to stagnation and satisfaction with the status quo, even if it must be maintained by sheer force. It may also lead to myth -- by identifying itself with the divine power which defeats the powers of chaos.