Law, Authority, And Interpretation In The Ancient World .
Law, Authority, and Interpretation in the Ancient World:The Origin of Legal Obligation in Early JudaismbyJonathan VroomA thesis submitted in conformity with the requirementsfor the degree Doctor of PhilosophyDepartment of Near and Middle Eastern CivilizationsUniversity of Toronto Copyright by Jonathan Vroom 2017
iiLaw, Authority, and Interpretation in the Ancient World:The Origin of Legal Obligation in Early JudaismJonathan VroomDoctor of PhilosophyDepartment of Near and Middle Eastern CivilizationsUniversity of Toronto2017AbstractThis study draws from legal theory to help identify a development in the authority ofwritten law that took place in early Judaism. Since the discovery of the so-called ‘Code’ ofHammurabi, Assyriologists generally agree that the ancient Near Eastern law collections did notfunction as binding law. The tens of thousands of legal records preserved indicate that thepractice of law operated independently from the written codes. Consequently, scholars have beengrappling with the question of when written law came to be treated as legally binding. Ratherthan starting with the question of when law became binding, however, this study begins byasking the question of what it means for law to be binding. Furthermore, drawing from legaltheory, it develops a method for identifying instances in which legal texts were treated as bindingby ancient interpreters.This study claims that when a written directive is treated as law, it produces a uniquenormative effect within its addressees. This normative effect can be identified by the manner inwhich the legal text is interpreted; when a text is being treated as binding law, its interpreters willtreat it in a unique and identifiable way. Drawing from Joseph Raz’s Preemption Thesis, and LonFuller’s inner morality of the law, this study develops seven criteria for determining when a text
iiiis being treated as legally binding by an ancient interpreter. The bulk of this study applies thesecriteria to four instances of legal interpretation in early Jewish sources: 1) the Temple Scroll’sinterpretation of the Torah’s Day of Atonement laws; 2) The Samaritan Pentateuch’s interpretiverewriting of a series of laws from the Pentateuch, particularly the goring ox laws of Exodus21:28–37; 3) the interpretive reformulations of the Qumran penal codes from the Dead Seascrolls’ rule texts; 4) the depiction of Torah-obedience in Ezra 9–10, Nehemiah 8:13–18, andNehemiah 10.In the end, this study concludes that the scribes responsible for the interpretations of theTorah in the Temple Scroll and the Samaritan Pentateuch viewed the Torah’s laws as a source ofbinding obligation. By contrast, the scribes responsible for the changes to the Qumran penalcodes did not view the rule texts as binding law. Finally, although the community depicted in theEzra-Nehemiah Torah-obedience narratives viewed the Torah as legally binding, they did notinterpret it as such. Rather, they relied on the expert in the law to make Torah declarations, ratherthan relying on text-interpretive consultation of the text. While these conclusions do not fullydetermine when written law came to be viewed as legally binding, they provide an important firststep, and lay the methodological foundation for future study.
ivACKNOWLEDGEMENTSI am greatly indebted to numerous people, without whom this work would look much different. Iwould first like to thank my supervisor Sarianna Metso. Her interest in the genre of Qumran lawsparked my curiosity and led me to ask the question of what it means for law to be law in thefirst place, and then to ask that question for biblical and Mesopotamian law collections.Fortunately, she gave me great freedom to explore this question wherever it led me—deep intothe realm of legal theory as it turns out. I thank her for her patience, encouragement, andguidance throughout this journey. I also thank the other members of my committee. JudithNewman’s theoretical and philological approach to early Jewish texts has been inspiring for myown work. I thank Paul-Alain Beaulieu, who introduced me to Akkadian and the Code ofHammurabi. His philological rigor and vast knowledge of Akkadian sources has been aninvaluable resource for me. Thanks are also due to Ernest Weinrib and David Dyzenhaus fromthe Faculty of Law, who helped guide me through the murky waters of legal theory, and affirmedmy ideas early on.I am also grateful to my colleagues at the University of Toronto, particularly JohnScrenock, Nathalie LaCoste, Carmen Palmer, Shawn Flynn, Mark Graham, Ryan Stoner, andDemetrios Alibertis. While their feedback and encouragement have been invaluable, I am mostappreciative for the supportive friendships that were forged as we navigated our way throughgrad school. Much thanks are also due to the various sources of funding that made my graduatecareer financially possible: the University of Toronto Fellowship; the Centre for Jewish Studies;Ontario Graduate Scholarships; and the Social Sciences and Humanities Research Council ofCanada. Special thanks are also due to Anna Sousa at the Department of Near and Middle
vEastern Civilizations. Anna is an exceptional administrator who works tirelessly behind thescenes, and yet is always willing to patiently help any student that comes to her door.I owe the greatest debt of gratitude to my family for all their support, particularly mysister Carlye and mother Louise, who slogged through several portions of this. To my in-laws,Ken and Scarlet Rampersad, I am very grateful for their unwavering love and support, despitetheir (very understandable) bewilderment at my career choice. Much thanks are due to mychildren, Joshua and Julia, who had to put up with a Dad whose mind was often in the clouds.Thank you for always—whether I liked it or not—pulling me back to reality and reminding methat there are things that are far more important than ancient legal thought. Most of all, I thankmy wife, Sherryl, who has always supported me. She has put up with being the household breadwinner for far longer than she ever would have imagined when she agreed to marry me. Yet shehas been nothing but a source of constant encouragement and support. This dissertation isdedicated to her.
viTable of ContentsINTRODUCTION . viiiI.Legal Obligation and the Ancient Near Eastern Law ‘Codes’ . viiiII. Interpretation as the Key to Identifying Legal Obligation . xivIII. Legal Theory and the Problem of Conceptual Anachronism . xvIV. Overview of Chapters . xviiiPART I: THEORY AND METHOD . xxiiCHAPTER ONE: IDENTIFYING A BINDING ATTITUDE TOWARD LAW ININTERPRETIVE SOURCES . 1I.Binding Obligation and the Nature of Law’s Authority . 2II.The Rule of Law and Legal Interpretation . 16III.Summary of Methodology . 32IV.Sabbath Interpretation as a Test Case. 33V.Conclusion. 42CHAPTER TWO: HISTORY OF RESEARCH AND THE NEED FOR A LEGALTHEORETICAL APPROACH. 44I.Arguments for the Non-Binding Character of Ancient Near Eastern Law . 45II.History of Scholarship and Conflicting Assumptions about Law . 51III.Conclusion . 73CHAPTER THREE: AUTHORITY AND PROBLEM OF INTERRPETATION . 74I.Defining Interpretation, Authority, and Scripture . 74II.Authority and the Problem of Interpretation . 78III. Authority Transfer and the Limits of Interpretation in Modern Law . 82IV. Authority and Interpretation in Ancient Israel and Early Judaism . 85V.Interpretive Methods and Motives . 96VI.Conclusion . 100PART II: TEXTUAL ANALYSIS . 101CHAPTER FOUR: LEGAL INTERPRETATION IN THE TEMPLE SCROLL’S YOMKIPPUR LAW . 102I.An Overview of the Temple Scroll . 103II.The Text of Temple Scroll 25:10–27:10 . 110III.Threats to the Rule of Law addressed in Temple Scroll’s Interpretive Rewriting . 117
viiIV.Conclusion . 134CHAPTER FIVE: LEGAL INNOVATION IN THE SAMARITAN PENTATEUCH’SCOVENANT CODE . 136I.The Provenance of the Samaritan Pentateuch’s Legal Innovations . 137II.Correcting Threats to the Rule of Law in the Samaritan Pentateuch . 141III.Further Considerations . 150IV.Conclusion . 157CHAPTER SIX: LEGAL REWRITING IN THE QUMRAN PENAL CODES . 158I.The Literary Relationship among the Rule Texts and the Problem of their Genre . 160II.Interpretive Rewriting in the Penal Codes . 167III.The Genre of the Penal Codes and Historical Reconstruction . 182IV.Conclusion . 187CHAPTER SEVEN: THE AUTHORITY OF THE TORAH IN THE EZRA-NEHEMIAHLEGAL NARRATIVES . 188I.Ezra’s Torah and Pentateuchal Law . 189II.Community Response as Reflecting a Binding Attitude toward Law . 191III.The Authority of the Torah versus Torah Experts in Yehud. 197IV.Conclusion . 217CONCLUSION . 219I.Summary of Theory and Method . 220II.Summary of Textual Analysis . 222III.Between Authority and Interpretation in Ancient Law . 225IV.Mapping the Emergence of Legal Obligation in Early Judaism . 227V.Looking Ahead . 233BIBLIOGRAPHY . 235
INTRODUCTIONThis was our paradox: no course of action could be determined by a rule, because every courseof action can be made out to accord with the rule. The answer was: if everything can be madeout to accord with the rule, then it can also be made out to conflict with it. And so there wouldbe neither accord nor conflict here. . . . Hence there is an inclination to say: every actionaccording to the rule is an interpretation. But we ought to restrict the term “interpretation” tothe substitution of one expression of the rule for another.Ludwig Wittgenstein, Philosophical Investigations, 1953, 201Lawyers lean heavily on the connected concepts of legal right and legal obligation. We say thatsomeone has a legal right or duty, and we take that statement as a sound basis for making claimsand demands. . . . But our understanding of these concepts is remarkably fragile, and we fallinto trouble when we try to say what legal rights and obligations are. We say glibly that whethersomeone has a legal obligation is determined by applying “the law” to the particular facts of hiscase, but this is not a helpful answer, because we have the same difficulties with the concept oflaw. . . . Why do we call what “the law” says a matter of legal “obligation”? Is “obligation” herejust a term of art, meaning only “what the law says”?Ronald Dworkin, “The Model of Rules,” 1967:14.I.LEGAL OBLIGATION AND THE ANCIENT NEAR EASTERN LAW ‘CODES’Within 40 years of the discovery of the great ‘Code’ of Hammurabi in 1902, Assyriologistsbegan to notice a peculiarity when they compared it with the tens of thousands of legalrecords preserved from Mesopotamia: not a single recorded judicial decision cites ormentions the Laws of Hammurabi, even though it was highly venerated and well-knownthroughout Mesopotamia for nearly a millennium, 1 and many legal records deal with thesame subject matter as its laws. 2 This observation has produced much scholarly inquiry1Victor Avigdor Hurowitz, “Hammurabi in Mesopotamian Tradition,” in “An Experienced ScribeWho Neglects Nothing”: Ancient Near Eastern Studies in Honor of Jacob Klein (ed. Jacob Klein and YitzhakSefati; Bethesda, MD: CDL Press, 2005), 497–532.2For early observations on this, see Paul Koschaker, “Quellenkritische Untersuchungen zu den‘altassyrischen Gesetzen,’” Mitteilungen der Vorderasiatisch-Ägyptischen Gesellschaft 26 (1921):16–17; B.Landsberger, “Die Babylonischen Termini far Gesetz und Recht,” in Symbolae ad iura orientis antiquipertinentes Paulo Koschaker dedicatae (ed. Johannes Friedrich et al.; Studia et documenta ad iura Orientis
ixamong Assyriologists, Bible scholars, and legal historians. 3 Two questions are typicallyasked: 1) If the law collections from the ancient Near East were not meant to be binding uponjudicial decisions, why were they written?; 4 2) When in the history of jurisprudence didwritten law come to be viewed as a source of binding obligation upon its subjects andadjudicators?The latter of these questions will be the subject of this study. There is little doubt thatthe Torah was treated as binding law by the tannaitic sages, 5 or that the Twelve Tables wasconsidered binding by Roman jurists, 6 or that the laws of Draco and Solon were consideredbinding law in 5th century Athens. 7 There was clearly something different about the practiceantiqui pertinentia 2; Leiden: Brill, 1939), 221–22; and Godfrey Rolles Driver and John Charles Miles, TheBabylonian Laws (Ancient Codes and Laws of the Near East.; Oxford: Clarendon, 1952), 53. They noted that“There is not a single case in the thousands of legal documents and reports which have been preserved in whichreference is made to the wording of the text of the Laws [of Hammurabi]; indeed, neither judges nor privatepersons in their documents seem to have regarded it as verbally binding.” Similarly, Mendenhall notes: “Itseems clear that the judges of ancient times had neither the custom nor the techniques for arriving at a decisionby means of interpreting and applying an authoritative written lawcode.” See George E. Mendenhall, “AncientOriental and Biblical Law,” BA 17 (1954):32.3I will engage the Bible scholars and Assyriologists who have addressed this problem in the nextchapter, mainly Raymond Westbrook and Sophie LaFont (Assyriologists), and Michael LeFebvre, and AnneFitzpatrick-McKinley (Bible scholars). The legal historians who addressed this problem were part of a Germantradition that worked in the first half of the last century. For a list, see Sophie LaFont, “Introduction,” in ExOriente Lex: Near Eastern Influences on Ancient Greek and Roman Law (ed. Kurt A. Raaflaub and DeborahLyons; Baltimore: Johns Hopkins University Press, 2015), xv–xvi.4For an introduction to the Mesopotamian legal collections, see Martha T. Roth et al., Law Collectionsfrom Mesopotamia and Asia Minor (SBLWAW 6; Atlanta: Scholars, 1995). There are six main texts, twoSumerian collections (the Laws of Ur-Namma [LU] and the Laws of Lipit-Ishtar [LL]), three Babyloniancollections (the Laws of Eshnunna [LE], the Laws of Hammurabi [LH], and the Neo-Babylonian Laws [LNB]),and one Assyrian Collection (The Middle Assyrian Laws [MAL]). In addition to these Mesopotamiancollections, one Hittite collection has survived (HL). By far the most significant of these collections is LH. Fora survey of the widespread dissemination of LH, see Bernard M. Levinson, “Is the Covenant Code an ExilicComposition? A Response to John Van Seters,” in In Search of Pre-Exilic Israel (ed. David Reimer; New York:T & T Clark, 2004), 292–94.5This is most obvious from the famous statement from the Mishnah: “The absolution of vows hoversin the air, for it has nothing [in the Torah] upon which to depend. The laws of the Sabbath, festal offerings, andsacrilege— lo, they are like mountains hanging by a string, for they have little Scripture for many laws” (m.Ḥag1:8). The fact that the tannaitic sages felt uncomfortable with the lack of scriptural basis for their legal practicesindicates an obligation to do only that which can be interpretively derived from the Torah. See Michal BarAsher Siegal, “Mountains Hanging by a Strand? Re-Reading Mishnah Ḥagigah 1:8,” JAJ 4 (2013):235–56.6See George Mousourakis, Roman Law and the Origins of the Civil Law Tradition (Cham: Springer,2015), 2, 32–33.7See Edward Monroe Harris, The Rule of Law in Action in Democratic Athens (Oxford: OxfordUniversity Press, 2013).
xof law in Mesopotamia, when compared to these later legal systems. The question of whenand how this new and (to the modern interpreter) familiar stance toward law—treating it as asource of binding obligation—developed in the ancient world has become an important issuefor a number of disciplines. This is the question that I seek to address in this study.Rather than beginning with the question of when written law came to be treated asbinding, however, I draw from contemporary legal theory to identify more precisely thenature of this shift in legal thinking that took place. In other words, I begin by asking what itmeans for law to be law in the first place. Furthermore, I develop a method for identifyingthis new attitude toward law within our available sources. As the above Dworkin quoteindicates, to call the law a source of binding obligation is no straight-forward matter. It is notenough to assume that, when the law is considered authoritative its subjects are obligated tolive according to what it requires, and adjudicators are bound to apply the law in courts.What it means for the law to ‘oblig
The Origin of Legal Obligation in Early Judaism . Jonathan Vroom . 2017 . Abstract . This study draws from legal theory to help identify a development in the authority of written law that took place in early Judaism. Since the discovery of the so-called ‘Code’ of . began to notice a peculiarity wh
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