Essays on Halakhah in the New Testament
JACKSON_F1_i-xiii.indd i 9/27/2007 7:48:26 PM Jewish and Christian Perspectives Series
Editorial Board David Golinkin, Marcel Poorthuis, Joshua Schwartz, Freek van der Steen
Advisory Board Yehoyada Amir, David Berger, Shaye Cohen, Judith Frishman, Martin Goodman, Clemens Leonhard, Tobias Nicklas, Eyal Regev, Gerard Rouwhorst, Seth Schwartz, Yossi Turner
VOLUME 16
JACKSON_F1_i-xiii.indd ii 9/27/2007 7:48:27 PM Essays on Halakhah in the New Testament
by Bernard S. Jackson
LEIDEN • BOSTON 2008
JACKSON_F1_i-xiii.indd iii 9/27/2007 7:48:27 PM This book is printed on acid-free paper.
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ISSN 1388-2074 ISBN 978 90 04 16273 0
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JACKSON_F1_i-xiii.indd iv 9/27/2007 7:48:27 PM For Hannah, Matthew and Nathan
JACKSON_F1_i-xiii.indd v 9/27/2007 7:48:27 PM JACKSON_F1_i-xiii.indd vi 9/27/2007 7:48:27 PM CONTENTS
Abbreviations ...... ix Acknowledgements ...... xi Preface ...... xiii
1. Historical Observations on the Relationship between Letter and Spirit ...... 1
2. The Prophet and the Law in Early Judaism and the New Testament ...... 13
3. The Trials of Jesus and Jeremiah ...... 33
4. Testes Singulares in Early Jewish Law and the New Testament ...... 59
5. Susanna and the Singular History of Singular Witnesses .... 89
6. The Jewish Background to the Prodigal Son: An Unresolved Problem ...... 111
7. Risk-Taking Shepherds ...... 151
8. “Holier than Thou”? Marriage and Divorce in the Scrolls, the New Testament and Early Rabbinic Sources ...... 167
Bibliography ...... 227
Index of Sources ...... 239 Index of Authors ...... 253 Index of Terms ...... 258 General Index ...... 260
JACKSON_F1_i-xiii.indd vii 9/27/2007 7:48:27 PM JACKSON_F1_i-xiii.indd viii 9/27/2007 7:48:27 PM ABBREVIATIONS
Abbreviations of biblical books follow RSV; those of mishnaic and tal- mudic tractates follow Danby.
ANET Ancient Near East ANET J. B. Pritchard (ed.), Ancient Near Eastern Texts Relating to the Old Testament (3rd ed., 1969) C Codex (of Corpus Iuris Civilis) CBQ Catholic Biblical Quarterly CD Covenant of Damascus (Qumran) Dig. Digesta (of Corpus Iuris Civilis) DSD Discoveries in the Judaean Desert EM Enzyklopedia Mikra’it HL Hittite Laws HTR Harvard Theological Review IEJ Israel Exploration Journal JBL Journal of Biblical Literature JJS Journal of Jewish Studies JLA Jewish Law Annual JLAS Jewish Law Association Studies JNSL Journal of Northwest Semitic Languages JPS Jewish Publication Society JSNT Journal for the Study of the New Testament JQR Jewish Quarterly Review JSOT Journal for the Study of the Old Testament JSS Journal of Semitic Studies JTS Journal of Theological Studies LE Laws of Eshnunna LH Laws of Hammurabi M Mishnah NT Novum Testamentum NTS New Testament Studies PAAJR Proceedings of the American Academy for Jewish Research PL Patrologia Latina RB Revue Biblique RQ Revue de Qumran
JACKSON_F1_i-xiii.indd ix 9/27/2007 7:48:27 PM x abbreviations
T Tosefta TWNT Theologisches Wörterbuch zum Neuen Testament, ed. G. Kittel and G. Friedrich VT Vetus Testamentum ZAR Zeitschrift für Altorientalische und Biblische Rechtsgeschichte ZAW Zeitschrift für die alttestamentliche Wissenschaft
JACKSON_F1_i-xiii.indd x 9/27/2007 7:48:27 PM ACKNOWLEDGEMENTS
The editors and publishers of chapters 1–5 have kindly granted permission to reprint material which appeared originally as follows:
Chapter 1. “Historical Observations on the Relationship between Letter and Spirit”, in Law and Religion, ed. R.D. O’Dair and A.D.E. Lewis (Oxford: Oxford University Press, 2001 = Current Legal Issues Vol. 4), 101–110.
Chapter 2. “The Prophet and the Law in Early Judaism and the New Testament”, Cardozo Studies in Law and Literature 4/2 (Fall 1992), 123–138, 155–158.
Chapter 3. “The Trials of Jesus and Jeremiah”, in “The Prophet and the Law in Early Judaism and the New Testament”, Cardozo Studies in Law and Literature 4/2 (Fall 1992), 138–155, 158–166.
Chapter 4. “Testes Singulares in Early Jewish Law and the New Testament”, in Essays in Jewish and Comparative Legal History (Leiden, E.J. Brill, 1975), 172–201.
Chapter 5. “Susanna and the Singular History of Singular Witnesses”, Acta Juridica (1977), 37–54 (Essays in Honour of Ben Beinart, Juta & Co., Cape Town).
JACKSON_F1_i-xiii.indd xi 9/27/2007 7:48:27 PM
JACKSON_F1_i-xiii.indd xii 9/27/2007 7:48:28 PM PREFACE
Chapters 1–5 in this book are reprinted from earlier publications where they were unlikely to command attention from New Testament special- ists, and are here lightly revised. They cover some central aspects of the New Testament—theological concepts (letter and spirit, prophecy and law), the accounts of Jesus’ “trial(s)”, the evidence required for legal and theological claims, and teachings on forgiveness and divorce. Issues of genre (as in the parables) and method are highlighted. Though not a New Testament specialist, I have tried (especially in the more recent chapters) to grapple as best I can with the relevant New Testament scholarship. I fully appreciate that the material here studied is an insuf cient basis for any overall conclusions regarding the role of the halakhah in understanding the New Testament—and vice versa. At best, it illustrates the complexity of the problem, and the dangers of attempting hasty generalisations. Both the New Testament and the halakhah are literary complexes, whose individual sources require separate consideration. Much of the work here presented dates from those periods in my career where the institutional context of my work favoured work in the history of Jewish-Christian relations: on the one hand, Edinburgh, where (though a member of the Law Faculty) I bene ted immensely from the stimulation and friendship of colleagues at New College; latterly, at Manchester, where the Ehrhardt seminar and its various members have provided invaluable encouragement and feedback. Biblical quotations are from the RSV, with any amendments indicated.
30 April 2007
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CHAPTER ONE
HISTORICAL OBSERVATIONS ON THE RELATIONSHIP BETWEEN LETTER AND SPIRIT
1. Introduction
Modern lawyers and theologians within the Judaeo-Christian tradi- tion have tended to view the “other” from within their own disciplinary framework. Lawyers used to be interested in broad questions of origins: were law and religion differentiated in early societies, and if so which came rst?;1 more recently, does religion, in the West, provide the origi- nal form of legitimation for law, and in particular the model of a canon- ical text and its interpretation?2 Theologians ask what is the role of law within religion. Insofar as the concerns of religion transcend mundane social life, does observance of divine law in this world (one possible de - nition of the “good life”) provide a ticket to the hereafter? Or, in more technical theological terms, is Justi cation by Works or Faith? In this paper, I try to disentangle these issues through a consideration of the famous opposition between “letter” and “spirit”. The dictum of Paul, famously rendered by the King James Version: “For the letter killeth, but the spirit giveth life”3 has itself been appropriated in their different ways by lawyers and theologians. The former have often seen it as a piece of hermeneutic advice: as advocating interpretation of a written text according to its “spirit” rather than its “letter”, thus favour- ing some form of “free” or “principled” interpretation over a “literal” reading.4 The latter more typically see in it Paul’s own endorsement
1 On Maine’s views, see Jackson 1992:288–292. A.S. Diamond strongly challenged prevailing assumptions. See my review of his Primitive Law, Past and Present: Jackson 1972. 2 See, e.g., Goodrich 1990:63–82. 3 2 Cor. 3:6: “The quali cation we have comes from God; it is he who has quali ed us to dispense his new covenant—a covenant expressed not in a written document but in a spiritual bond; for the written law condemns to death, but the spirit gives life” (RSV). 4 In fact, the understanding of the distinction as one between literal and allegorical meaning goes back to the early Church. Calvin, in his commentary ad loc., was scathing of the use made of it: “For the letter killeth. This passage was mistakingly perverted, rst
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of justi cation by faith (“spirit” = the Holy Spirit) rather than Works (“letter” = the Written Law).5 I shall argue, however, that the historical background indicates that the real dispute was one over the semiotics of revelation: through what means (text or inspiration) was the divine will made manifest and to what extent was that form of communication both effective and acces- sible to human reason? The history of the division between Judaism and Christianity may be viewed as a con ict over the acceptable forms of communication of the divine message. One methodological caveat, before I begin. The “historical” account I shall propose is an account of the claims made in the texts which have come down to us. When discussing biblical law, in particular, we must distinguish between the historical and social realities of the period (insofar as we may have access to them), and the claims of the authors of the biblical texts, which frequently re ect their own, normative views.6 My focus is on the latter, rather than the former.
by Origen, and afterwards by others, to a spurious signi cation. From this arose a very pernicious error—that of imagining that the perusal of Scripture would be not merely useless, but even injurious, unless it were drawn out into allegories. This error was the source of many evils. For there was not merely a liberty allowed of adulterating the genuine meaning of Scripture, but the more of audacity any one had in this manner of acting, so much the more eminent an interpreter of Scripture was he accounted. Thus many of the ancients recklessly played with the sacred word of God, as if it had been a ball to be tossed to and fro. In consequence of this, too, heretics had it more in their power to trouble the Church; for as it had become general practice to make any passage whatever mean anything that one might choose, there was no frenzy so absurd or monstrous, as not to admit of being brought forward under some pretext of allegory. Even good men themselves were carried headlong, so as to contrive very many mistaken opinions, led astray through a fondness for allegory.The meaning of this passage, however, is as follows—that, if the word of God is simply uttered with the mouth, it is an occasion of death, and that it is lifegiving, only when it is received with the heart. The terms letter and spirit, therefore, do not refer to the exposition of the word, but to its in uence and fruit. Why it is that the doctrine merely strikes upon the ear, without reaching the heart, we shall see presently” (available on internet at http://www.ccel.org/c/calvin/comment2/2cor.htm). 5 Rom. 3:19–20, 10:1–4; See The Sermons of Martin Luther VIII.225f.: “Here man’s heart is represented as a sheet, or slate, or page, whereon is written the preached Word; for the heart is to receive and securely keep the Word. In this sense Paul says: We have, by our ministry, written a booklet or letter upon your heart, which witnesses that you believe in God the Father, Son and Holy Ghost and have the assurance that through Christ you are redeemed and saved. This testimony is what is written on your heart. The letters are not characters traced with ink or crayon, but the living thoughts, the re and force of the heart.” See further Jackson 1979:4–9. 6 This has implications, inter alia, for the assessment of prophetic denunciation of economic practices which may have been quite legal under state law. See Jackson 1998:227ff.
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2. The Original Biblical Conception of Justice
The biblical authors had a radical view of the nature of justice, and offer some very speci c accounts of the history of its development. For them, justice was divine—not merely in some ideological sense: that justice is a value mandated by God, and therefore that the administra- tion of justice was in the name of, or on behalf of, God (what we might term the theory of delegation).7 Rather, justice was divine in a very direct sense: it belonged to (was an attribute of ?) God,8 and decisions on matters of justice were rendered by God himself. Such a conception is not absent from the New Testament.9 How was this to be affected? Two answers are given. The rst is that the judge is inspired by God at the level of the individual decision. The accounts of both early (royal) adjudication and the earliest charges given to the judges appointed by those kings coincide in stressing direct divine inspiration rather than recourse to a divine text. According to Proverbs 16:10: “Inspired decisions are on the lips of a King; his mouth does not sin in judgement.” The famous adjudication by Solomon of the case of the two prostitutes (1 Kings 3:16–28) concludes with the narrator’s observation: “And all Israel heard of the judgment which the king had rendered; and they stood in awe of the king, because they perceived that the wisdom of God was in him, to render justice.” Perhaps the most famous charge to the judges in the Bible is that of Deuteronomy 16, where they are commanded to deliver “righteous judgment” (mishpat tsedek).10 This is further explained in both negative and positive terms: negatively, that the judges must avoid both partiality and corruption; positively, that they must pursue justice.11 The account of the “judicial
7 Though that is also claimed. The charge of Jehoshaphat to the judges includes: “Consider what you do, for you judge not for man but for the Lord” (2 Chron. 19:6). 8 Deut. 1:17, “for the judgment is God’s” (ki hamishpat lelohim hu). 9 See Derrett 1972:40f. on the conception of divine justice where the Rule of Law is inapplicable. 10 Deut. 16:18–20: “You shall appoint judges and of cers in all your towns which the Lord your God gives you, according to your tribes; and they shall judge the people with righteous judgment. You shall not pervert justice; you shall not show partiality; and you shall not take a bribe, for a bribe blinds the eyes of the wise and subverts the cause of the righteous. Justice, and only justice, you shall follow, that you may live and inherit the land which the Lord your God gives you.” 11 Tsedek tsedek tirdof. But what is this tsedek? There is no suggestion that it consists in following the rules of a written law book; the noun tsedek, in its feminine form, tsedakah, means righteousness, and more concretely charity; it is dif cult to grasp the sense of
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reform” of the ninth century King Jehoshaphat is closely parallel: his charge to the rst instance judges he appoints makes no reference to their using a written law book; rather, he tells them to avoid partiality and corruption (as in Deuteronomy) and that “(God) is with you in giving judgement” (veimakhem bidvar mishpat).12 In other words, judicial decisions were conceived to be inspired: we may understand this, from an external viewpoint, as a legitimation of the intuitive sense of justice. A second answer, perhaps re ecting a viewpoint closer to the inter- ests of the priesthood, is that the oracle should be consulted in every case (and not simply in “hard cases”, as later sources seem to imply). That view emerges clearly from the narrative of the visit of Jethro, the father-in-law of Moses, to the Israelites immediately before the revela- tion on Sinai (Exodus 18). Recall the vivid picture in Exodus 18:13–15 of Moses as the overloaded rst instance judge: On the morrow Moses sat to judge the people, and the people stood about Moses from morning till evening. When Moses’ father-in-law saw all that he was doing for the people, he said, “What is this that you are doing for the people? Why do you sit alone, and all the people stand about you from morning till evening?” And Moses said to his father-in- law, “Because the people come to me to inquire of God . . .” The problem, Moses explains, derives from the fact that the people expect him, in dealing with each and every case, “to inquire of God” (lidrosh elohim—a term which here refers to oracular consultation).13 Jethro, the story continues, advised Moses to create a system of judicial delegation, and to deal himself only with the “great matters” which the judges bring to him.
tsedek without being sensitive to this connotation. So it is possible to take the term most centrally translated “justice” as having a non-positivist biblical connotation. 12 2 Chronicles 19:5–7: “Consider what you do, for you judge not for man but for the Lord; he is with you in giving judgment. Now then, let the fear of the Lord be upon you; take heed what you do, for there is no perversion of justice with the Lord our God, or partiality, or taking bribes.” The fact that Jehoshaphat is elsewhere con- cerned with the use of a book of written torah, which he has used for public instruction (2 Chron. 17:9), makes its absence from the judicial reform all the more striking. On these sources, see further Jackson 2000:116–119; idem, 2007b. 13 Cf. 1 Kings 22:7f., 2 Chron. 16:6f.; 1 Chron. 10:13–14, of Saul’s consultation of a medium. See further Wagner 1978:302f.
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3. From Spirit to Letter
The advice given by Jethro in Exodus 18—presented as a reaction to a purely practical problem—entails rejection of the idea of the direct inspiration of the rst instance judge. Instead, a system of delegation is to be introduced, the rst instance judges now making the decisions on the basis of rules which have been taught. Elsewhere, written law is speci cally ascribed the function of a source of instruction.14 So Exodus 18 itself presents a two-stage historical claim: at rst, all adjudication was based upon the direct divine decision (through consultation of the oracle); later, “easy cases” at least were to be decided by human agen- cies applying pre-existing rules. A parallel historical development may be discerned in relation to the accounts of judges operating with direct divine inspiration. We read the following revealing notice regarding the sons of Samuel (1 Samuel 7:15–8:3): Samuel judged Israel all the days of his life. And he went on a circuit year by year to Bethel, Gilgal, and Mizpah; and he judged Israel in all these places. Then he would come back to Ramah, for his home was there, and there also he administered justice to Israel. And he built there an altar to the Lord. When Samuel became old, he made his sons judges over Israel. The name of his rst-born son was Joel, and the name of his second, Abijah; they were judges in Beer-sheba. Yet his sons did not walk in his ways, but turned aside after gain; they took bribes and perverted justice. The model of the inspired judge is thus found, in practice, to be incom- patible with the hereditary principle: the sons of Samuel transgress precisely the forms of judicial behaviour prohibited in Deut. 16. It is hardly coincidental that Samuel is the very prophet whom the people badgered, against his better judgement, for the appointment of a King. And it was Samuel who was responsible for what may well have been the rst text of written law in the actual history of the Israelite king- doms, namely the mishpat hamelukhah which (presumably) de ned and restricted the powers of the King (1 Samuel 10:25). Thus, in the story of Samuel two themes are combined: on the one hand, the writing of law in order to restrain the powers of a King; on the other, the abuse
14 2 Chron. 17:9 (see n. 12 supra); see also Deut. 17:18–20.
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of a hereditary judicial power. If written law was the remedy for the former, we may reasonably assume that it was also a remedy in relation to the latter. As in the traditions of the origins of law in Greece and Rome, written law is a response to the abuse of an earlier discretion, rather than discretion being the response to the supposed rigidities of an earlier written law.
4. The Bifurcation in Divine Justice
The effect of this is a bifurcation in divine justice. On the one hand, divine justice continues to operate directly, without any human inter- mediaries; on the other, those human agencies charged with imple- mentation of divine justice are no longer acting directly at the instance of God (whether via inspiration or oracle). Divine justice, as operated through human means, thereby becomes that much less perfect. It is now subject to the limitations of human knowledge and judgement. We see re ections of this in the handling of two major institutions associated with divine justice. The principle of measure for measure—a particular application of which is talionic punishment—could, it was assumed, be applied by God,15 and was so applied, without arbitrari- ness and injustice. Not so, the Rabbis concluded, for human agencies. In the latter hands, it had to be reduced to monetary compensation, for which measures of quanti cation were available in human society.16 Similarly, the Decalogue threatens those who commit idolatry with transgenerational punishment:17
15 See, e.g., Jacob 1926:93–100; on the earlier literature, see further Jackson 1975:84 n. 58. For more recent discussion: Boogaart 1985:47f.; Nel 1994:22; Jackson 1996:108. 16 One of the arguments deployed by the Rabbis against a literal interpretation of the Biblical text is the following: “What then will you say where a blind man put out the eye of another man, or where a cripple cut off the hand of another or where a lame person broke the leg of another. How can I carry out in this case [the principle of retaliation of ] ‘eye for eye’, seeing that the Torah says, Ye shall have one manner of law, implying that the manner of law should be the same in all cases.” See Baba Kamma 84a (The Talmud, Soncino translation), discussed further in Jackson 2000a:11–16; idem, 2001:131f., 136f. For the rabbinic system of assessment of damages for bodily injury, see M. Baba Kamma 8:1 (translation in Danby 1933:342). 17 Exod. 20:5–6, cf. Deut. 5:9–10. The love/hate theme is widely seen as originating in ancient Near Eastern treaties, referring to relationships of rebellion or loyalty. See Weinfeld 1972:81–84; Levinson 1992:46.
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You shall not bow down yourself to them, nor serve them; for I the Lord your God am a jealous God, visiting the iniquity of the fathers upon the children to the third and fourth generation of them that hate me. And showing mercy to thousands of those who love me, and keep my commandments . . .18 The use of the rst person shows, in context, that this is a measure reserved for the operation of direct divine justice. As far as the human operation of divine law was concerned, the principle adopted by Deu- teronomy 24:16 was to be that of individual responsibility: The fathers shall not be put to death for the children, nor shall the children be put to death for the fathers; every man shall be put to death for his own sin. By the end of the First Jewish Commonwealth, however, the per- ceived consequences of the application by God of transgenerational punishment prompted a counsel of despair.19 Experience showed that human beings could not voluntarily rise to the standards required by such direct application of divine justice. Jeremiah expresses this20 in a famous passage (31:29–34): In those days they shall no longer say: “The fathers have eaten sour grapes, and the children’s teeth are set on edge.” But every one shall die for his own sin; each man who eats sour grapes, his teeth shall be set on edge. Behold, the days are coming, says the Lord, when I will make a new covenant with the house of Israel and the house of Judah, not like the covenant which I made with their fathers when I took them by the hand to bring them out of the land of Egypt, my covenant which they broke, though I was their husband, says the Lord. But this is the covenant which I will make with the house of Israel after those days, says the Lord: I will put my law within them, and I will write it upon their hearts; and I will be their God, and they shall be my people. And no longer shall each man teach his neighbor and each his brother, saying, “Know the Lord,” for they shall all know me, from the least of them to the greatest, says the Lord; for I will forgive their iniquity, and I will remember their sin no more.
18 Schenker 2000 has documented a strong ancient tradition seeking to avoid this conclusion by holding that the sentence against the original sinning generation is to be “suspended” until the third or fourth generation. 19 Cf. Greenberg 1995:18f., citing also Ezek. 36:24–27 (at 19f.). See further Jackson 2000:231–36. 20 On the importance of this issue as the context for Jeremiah’s “new covenant”, cf. Levinson 1992:51.
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The substance of the opposition here is between a covenant, compli- ance with which was voluntary—and breach of which was visited by direct divine punishment—and a covenant compliance with which was automatic21—we might almost say, genetically programmed (perhaps a reversion to the guiltless—or at least shameless—state of nature before Adam and Eve ate of the tree of knowledge).22 For the latter, Jeremiah still uses the metaphor of written law, but the covenant now is “written in the heart”, forming a spiritual bond between God and the believer.
5. Christian and Rabbinic Reactions
It is not dif cult to see how the early Church could turn this into a doctrine of justi cation. First of all, concern for the afterlife was by this period much more pronounced than it had been in the time of Jeremiah. For most of the writers of the Hebrew Bible, man returned to the dust from which he was created;23 divine punishment was focused on this world (including one’s posterity within this world). By the time of Jesus, belief in the afterlife, and the divine judgement which preceded it, was much more widespread. To this extent, the effects of divine judgement were even more signi cant. The availability of a “new cov- enant” through which human beings could be protected from sin was interpreted by Paul as referring to a spiritual bond (faith in Jesus) which dispensed with observance of Torah, rather than one which made such observance automatic. Even though the “new covenant” was, according to Jeremiah, “written” in the heart, the opposition was expressed by Paul more directly as one between “Letter” and “Spirit”.24
21 Cf. von Rad 1965:212–15; McKane 1966:817–827 (noting Peake on the creation of an “inerrant moral sense”, at 820); McKeating 1999:154f. 22 Gen. 2:9, 17 (where God commands: “But of the tree of the knowledge of good and evil, you shall not eat of it; for in the day that you eat of it you shall surely die”, which contributes to the Pauline doctrine that “the letter killeth”, since the law involves guilt and lack of the capacity fully to comply with its demands). For Jewish approaches to the problem of the tree of knowledge, see Leibowitz 1972:17–27. For a review of modern scholarship, see Wallace 1985:115–30; Wenham 1987:62–64, arguing for understanding “knowledge of good and evil” as “moral autonomy” rather than “moral discernment”. 23 Notably Eccl. 12:7: “And the dust returns to the earth as it was; and the spirit returns to God who gave it”, cf., e.g., Ezek. 37; Ps. 22:16, 44:26, 103:14, 104:29, 119:25, Job 10:9, 17:16 (equated with Sheol ), 19:25, 21:26, 34:15, Eccl. 3:20. For discussion, see Wolff 1974:ch. 12; more brie y, Neyrey 1985:282f.; aliter, Pitard 1993:15f. 24 In Rom. 2:14–16 Paul adapts Jeremiah’s image to his purpose: “When Gentiles
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Naturally, a different approach was taken within the Jewish tradi- tion. A variety of views are expressed on the role of To ra h in the mes- sianic age, and indeed of the kind of new covenant to which Jeremiah referred.25 What was vital, however, from the Rabbinic point of view, was that the messianic age had not yet arrived, and thus the promise of Jeremiah, whatever it meant, was deferred. The Rabbis had to grapple in a different way with the tensions between the different forms of revelation—direct personal inspiration on the one hand, textual transmission on the other—endorsed within the biblical texts. Nor was it open to them to distinguish between different historical phases of the development of the normative pentateuchal texts. Their response was to develop a new conception of the relationship between letter and spirit. The letter did, indeed, require interpretation. Though the Rab- bis did not endorse a concept of “literal meaning” comparable to ours,26 they did—naturally enough—read the texts through the techniques of literacy rather than orality.27 The techniques which they developed for this purpose did not oppose “letter” and “spirit” in the sense of modern legal hermeneutics. Rather, they attributed importance to those liter- ary (as well as substantive) characteristics of the written text28 which a secular legal reading would ignore—precisely because the text, in their view, was not simply a secular legal text, but rather one dictated by God himself, and thus possessing semiotic characteristics beyond those of human draftsmanship. How, then, could mere human interpreters perceive such meanings? The answer was to re-attribute direct divine inspiration to the inter- preters themselves. This is the signi cance of the original Rabbinic
who have not the law do by nature what the law requires, they are a law to themselves, even though they do not have the law. They show that what the law requires is written on their hearts, while their conscience also bears witness and their con icting thoughts accuse or perhaps excuse them on that day when, according to my gospel, God judges the secrets of men by Christ Jesus” (RSV). 25 See esp. Davies 1952: ch. IV. 26 Their conception of peshat (“simple meaning”, as opposed often to derash) clearly included many interpretations we would regard as non-literal. Probably the earliest rabbinic re ection on this is that of R. Ishmael (Mekhilta ad Exod. 21:19, Lauterbach III:53), who claimed that there were only three examples of interpretation according to mashal (metaphorical, or parabolic meaning): the interpretation of “an eye for an eye” as “money” was not one of them! On the notion of peshat, see Loewe 1965; articles on “Peshat”, and “Derash” by Rabinowitz in Enc. Jud. and older literature there cited; Kamin 1980; Halivni 1991; Jackson 2001. 27 See Jackson 2001a. 28 See Jackson 1993:151f.
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institution of “ordination” (semikhah), the continuation of the line of authority commencing with Moses, who “laid hands” on the head of his successor, Joshua,29 who in turn handed on the tradition of the “Oral Law” (through which the written was interpreted) to the elders, etc.30 A vivid illustration of the theological weight of such inspiration is to be found in a famous passage of the Babylonian Talmud (Erub. 13b), which records a three-year long dispute between the School of Hillel and that of Shammai on a point of law. In the end, a “heavenly voice”31 intervened to resolve the dispute, with the words: R. Abba stated in the name of Samuel: For three years there was a dis- pute between Beth Shammai and Beth Hillel, the former asserting, “The halachah is in agreement with our views” and the latter contending, “The halachah is in agreement with our views”. Then a bath kol issued announc- ing, “[ The utterances of ] both are the words of the living God, but the halachah is in agreement with the rulings of Beth Hillel”. Since, however, “both are the words of the living God” what was it that entitled Beth Hillel to have the halachah xed in agreement with their rulings?—Because they were kindly and modest, they studied their own rulings and those of Beth Shammai, and were even so [humble] as to mention the action of Beth Shammai before theirs. (Soncino translation) This evocative passage has given rise to some discussion.32 Is it intended as a divine endorsement of minority as well as majority opinion (since one generation’s minority view may become the majority opinion of a later generation)? Does it suggest that divine law transcends the human logic of contradiction? However we may answer these ques- tions, it is clear that the interpretation of the law is not a matter only of the meaning of its words, its letter. Even without the orality of the “heavenly voice”, the passage recognises the pragmatics as well as the semantics of interpretation—the behaviour (and not merely the cogni- tion) involved in meaning construction.
29 Num. 27:22–23; Deut. 34:9. On the history of semikhah, see Newman 1950, 1972 and bibliography there cited. 30 M. Avot 1:1; Elon 1994:I.192f., 228f. 31 Despite the rejection of the bat kol as a source of halakhah for other (substantive?) purposes, in the famous “oven of Okhnai” passage: B.M. 59b; see further Jackson 2001:135. 32 See further Jackson 1987:33f.; Ben-Menahem 1987:167f.
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6. Conclusion
Modern jurisprudence continues to manifest these same tensions, be- tween “Rule of Law” positivists, who put their faith in a written text, and “Legal Realists”, who give primacy to oral interaction and the practical authority accorded to individuals and institutions. Particularly interesting, within this spectrum, are the models of judicial authority and activity proposed by Kelsen (the theory of normative alternatives)33 and Dworkin (1978:105), whose Hercules, we may recall, is described as a “lawyer of superhuman skill, learning, patience and acumen”, and who indulges in (what I have described34 as) a hermeneutic holism of truly Rabbinic proportions. But that is another story.
33 See further Jackson 1985:243–56; idem, 1996a:114–124. 34 Jackson 2001a:322.
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JACKSON_F3_12-31.indd 12 9/27/2007 7:49:15 PM CHAPTER TWO
THE PROPHET AND THE LAW IN EARLY JUDAISM AND THE NEW TESTAMENT
1. Introduction
Ancient debates between Judaism and Christianity have profoundly affected both Judaeo-Christian relations down to the present day, and the internal development of Judaism itself. Take, for example, the words of Paul, which have resounded down the centuries: The quali cation we have comes from God; it is he who has quali ed us to dispense his new covenant—a covenant expressed not in a written document but in a spiritual bond; for the written law condemns to death, but the spirit gives life. (2 Cor. 3:6, NEB) Or, in the famous phrase of the King James version: For the letter killeth, but the spirit giveth life. Similarly, Romans 2:29 (NEB): The true Jew is he who is such inwardly, and the true circumcision is of the heart, directed not by written precepts but by the Spirit; such a man received his commendation not from men but from God. The “letter” comes to be associated with “The Law” and “the Spirit” with the Holy Spirit, and all too easily the phrase takes on connota- tions not merely of theological disputes ( justi cation by works or faith; revelation via a written text or to the individual heart or conscience):1 it even takes on connotations of “The Law killeth Jesus” and so gets mixed up with the deicide charge and the centuries of antisemitism which that charge was used to justify. Theological understanding is thus vital to communal relations. This paper addresses a related issue to that of letter and spirit, namely the tension between law and prophecy, as worked out in the various uses made of the tradition of the “prophet-like-Moses”.
1 See Jackson 1979, and ch. 1, supra.
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2. The Role of the Prophet in relation to the Law in the Old Testament
2.1 Moses as prophetic medium of divine verbatim revelation of law Recall the concluding words of the Pentateuch (Deut. 34:10–12): There has never yet risen in Israel a prophet like Moses whom the Lord knew face to face: remember all the signs and portents which the Lord sent him to show in Egypt to Pharaoh and all his servants and the whole land: remember the strong hand of Moses and the terrible deeds which he did in the sight of all Israel. Of course, the main function of Moses in the history of Israel was to mediate the law: it was for that purpose that God knew him face to face. Nevertheless, the accolade accorded to him is that of supreme prophet. The “signs and portents” (haotot vehamofsim)2 are merely evi- dence that Moses gave the law as a true prophet;3 they are the means by which the prophet establishes his status, not the essential function he is there to perform. A tantalising story in Jeremiah 36:1–23 illustrates some of the mechan- ics, in the period of the monarchy, of the continuation of this prophetic function. (1) In the fourth year of Jehoiakim son of Josiah, King of Judah, this word came to Jeremiah from the Lord: ‘Take a scroll and write on it every word that I have spoken to you about Jerusalem and Judah and all the nations, from the day that I rst spoke to you in the reign of Josiah to the present day. Perhaps the house of Judah will be warned of the calamity that I am planning to bring on them, and every man will abandon his evil course; then I will forgive their wrong doing and their sin.’ (4) So Jeremiah called the Baruch son of Neriah, and he wrote on a scroll at Jeremiah’s dictation all the words which the Lord had spoken to him. He gave Baruch this instruction: ‘I am prevented from going to the Lord’s House. You must go there in my place on a fast-day and read the words of the Lord in the hearing of the people from the scroll you have written at my dictation . . .’ (8) Baruch . . . did all that the prophet Jeremiah had told him to do . . . (10) Then Baruch read Jeremiah’s words in the House of the Lord out of the book in the hearing of all the people; he read them from the room of
2 Cf. Exod. 4:17, 10:1–2 for the use of ot by Moses in seeking to persuade Pharaoh to release the Israelites. 3 Cf. the tests stressed in Deuteronomy in distinguishing between true and false prophets (section 2.4 below).
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Gemariah . . . in the upper court at the entrance to the new gate of the Lord’s House. Micaiah son of Gemariah . . . heard all the words of the Lord out of the book and went down to the palace . . . There Micaiah repeated all the words he had heard . . . then the of cers sent Jehudi . . . to Baruch with this message: ‘Come here and bring the scroll from which you read in the people’s hearing.’ (15) So Baruch . . . brought the scroll to them, and they said, ‘Sit down and read it to us.’ When they heard what he read they turned to each other trembling and said, ‘We must report this to the King.’ They asked Baruch to tell them how he had come to write all this. He said to them, ‘Jeremiah dictated every word of it to me, and I wrote it down in ink in the book.’ The of cers said to Baruch, ‘You and Jeremiah must go into hiding so that no-one may know where you are.’ (20) When they had deposited the scroll in the room of Elishama the adjutant-general, they went to the court and reported everything to the King. The King sent Jehudi to fetch the scroll. When he had fetched it from the room of Elishama the adjutant-general, he read it to the king and to all the of cers in attendance . . . When Jehudi had read three or four columns of the scroll, the King cut them off with a penknife and threw them into the re in the brazier. He went on doing so until the whole scroll had been thrown on the re. We are not told a great deal about the content of this scroll, except that it was likely to be offensive to the king (many things could qualify), but it is by no means to be excluded that the scroll would have contained some normative material. Particularly interesting is the light here cast upon the way in which holy books could be in ltrated into the temple archive, with the complicity of court of cers—despite their sensitivity to the political dangers. Perhaps this casts light upon the famous incident a few years before, when, in the reign of King Josiah, a scroll (which many now identify with Deuteronomy) hitherto apparently unknown was discovered in the archive.
2.2 Prophet as authorised reformulator of the Law A major role of the Old Testament prophet is to remind the people of some covenantal obligation which had been entered into at an earlier stage, and which the people appear to be violating. Take the following example, concerning Jeremiah in the reign of King Zedekiah ( Jer. 34:12–14):4
4 On the relationship also to Deut. 15:12, see now Jackson 2006:466–68.
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Then this word came from the Lord to Jeremiah: These are the words of the Lord the God of Israel: I made a covenant with your forefathers on the day that I brought them out of Egypt, out of the land of slavery. These were its terms: ‘Within seven years each of you shall set free any Hebrew who has sold himself to you as a slave and has served you for six years; you shall set him free.’ Jeremiah reminds the people of the law rst stated in Exodus (21:2)5 about the liberation of slaves, that a male slave taken for debt must be released in the seventh year. This is a law which, according to the narrative in Jer. 34, the people have neglected, and the prophet causes them to re-covenant. There may be a new act of covenanting. Never- theless, the prophet clearly has the authority to use a different form of words to express the original law:6 Jer. 34:14: “Within seven years (mikets sheva shanim) each of you shall set free any Hebrew who has sold himself to you as a slave and has served you for six years”—expressed in the apodictic form.
Exod. 21:2: “When you buy a Hebrew slave, he shall be your slave for six years, but in the seventh year he shall go free and pay nothing”—expressed in a variety of the casuistic form. Such a capacity to reformulate is signi cant, since there would come a time when the verbal formulation, as well as the substance, of the law would become inviolate from change. Clearly, the biblical prophet retained the capacity, in reminding the people of the law, to use his own words to express it.7 Indeed, there is a talmudic source which suggests that it is of the essence of prophetic revelation that its formulation is unique: “I have a tradition from my grandfather’s house that the same communication is revealed to many prophets, but no two prophesy in the identical phraseology.”8
5 In fact there are elements of both the Exod. and Deut. versions in Jer. 34:14. Mikets echoes Deut. 15:1 (not 15:12) but the restriction of the formulation to the male slave echoes Exod. 21:2 rather than Deut. 15:12 (in its present form). See further Jack- son 2006:466f. 6 This might appear to make too strong an historical claim as to the availability of the Exodus formulation to Jeremiah. This is not the place to defend such a claim. Suf ce it to say that the discrepancy must have been available either to the redactor of Jeremiah or at least to the nal redactors of the Pentateuch, and in either event was allowed to stand. 7 On repetition in the Hebrew Bible, see Alter 1981:ch. 5 (“The Techniques of Repetition” ). 8 Sanh. 89a, attributed to Jehoshaphat, in debate with Ahab.
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2.3 The Prophet as amender of the law: the “prophet-like-Moses” tradition In the course his valedictory address, Moses enunciates God’s promise that in future there will arise prophets like Moses (kamoni ), whom God will inspire to communicate his commandments (Deut. 18:14–19): These nations whose place you are taking listen to soothsayers and augurs, but the Lord your God does not permit you to do this. The Lord your God will raise up a prophet from among you like myself, and you shall listen to him. All this follows from your request to the Lord your God on Horeb on the day of the assembly. There you said, ‘Let us not hear again the voice of the Lord our God, nor see this great re again, or we shall die.’ Then the Lord said to me, ‘What they have said is right. I will raise up from them a prophet like you, one of their own race, and I will put my words into his mouth. He shall convey all my commands to them, and if anyone does not listen to the words which he will speak in my name I will require satisfaction from him. But the prophet who presumes to utter in my name what I have not commanded him or who speaks in the name of other Gods—that prophet shall die.’ If you ask yourselves, ‘How shall we recognise a word that the Lord has not uttered?’, this is the answer: When the word spoken by the prophet in the name of the Lord is not ful lled and has not come true, it is not a word spoken by the Lord. The prophet has spoken presumptuously; do not hold him in awe. The passage contains a double admonition to obey such a prophet: elav tishmaun in verse 15,9 and the threat to require satisfaction from anyone not obeying him (v. 19). The coming of such a prophet is not described in Deuteronomy as a one-off, once-and-for-all, event; the “prophet-like-Moses” is not an eschatological prophet. There is no suggestion in the text of a Messiah gure who will come to herald the end of days. Nor is this a second coming of Moses himself. It is a promise that, from time to time, prophets will arise who will have an authority comparable to Moses, as the bearers of divine commands. The rabbis were to identify at least three historical gures whom they consider to have possessed just this kind of authority, and in each case they allude to a command by that prophet contrary to the Mosaic law:10 the rst (even before Moses) is
9 A phrase to which later the rabbinic understanding of the institution was exegeti- cally attached—see section 5.3 below. 10 B.T., Sanhedrin 89b; see further Jackson 1981:352 n. 51.
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Abraham, who commanded the sacri ce of Isaac;11 the second, the prophet Micaiah, who ordered a colleague to smite him;12 the third (the locus classicus), the prophet Elijah, who ordered sacri ce outside the Temple.13 This text was to prove of enormous signi cance in the subsequent history of both Judaism and Christianity.
2.4 Opposition: the false prophet There was a ne line in the Bible between the genuine and the false prophet, but, given the authority enjoyed by the genuine prophet, this was a line which it was vital to draw. We have seen in the case of Moses the stress laid upon his capacity to perform otot and mofsim (2.1, above), and the “prophet-like-Moses” passage itself explicitly raises the ques- tion of recognition, and offers non-ful lment of a “word” (which could certainly include, and perhaps in the context does not go beyond, a promise to perform miracles) as a falsi cation.14 However, the absence of such a falsi cation does not entail recognition of the prophet’s status. According to Deut 13:1–5: When a prophet or dreamer appears among you and offers you a sign or a portent and calls on you to follow other Gods whom you have not known and worship them, even if the sign or the portent should come true, do not listen to the words of that prophet or that dreamer. God is testing you through him to discover whether you love the Lord your God with all your heart and soul . . . That prophet or that dreamer shall be put to death, for he has preached rebellion against the Lord your God . . . Even success in performing otot and mofsim is no suf cient condition of true prophetic status; there is also a test as to the content of his teach- ing: not even a true prophet has the authority to command idolatry. The theme of the relationship of the prophet to Mosaic law is central to this passage, too. For the verse immediately preceding this passage is the famous (in rabbinic terms) bal tosif: “See that you observe everything
11 Abraham is called a navi in Gen. 20:7. 12 1 Kings 20:35–36. This, of the three examples, is the only one where the com- mand of the prophet was disobeyed; the threatened divine punishment (here, attack by a lion) duly occurs. 13 See infra, 27f. 14 On the relationship between otot and ful llment of a davar, in the Hebrew Bible and later sources, see further Jackson, 1981:347–349.
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I command you: you must not add anything to it, nor take anything away from it.” Indeed, in the chapter division of the Hebrew Bible, this verse commences the chapter (13:1), followed immediately by the law of the false prophet. The underlying logic of the discourse is thus the following:
1. You, ordinary Israelites, have no authority to alter the law, but 2. A genuine prophet-like-Moses may do so, on proving his status 3. But even one who proves his status with otot and mofsim is really false if he commands idolatry.
3. The Prophet at Qumran
The model of the prophet-like-Moses appears to have been important to the sect of Qumran. Various indications suggest that the sect’s major leader, the moreh hatsedek (the Teacher of Righteousness) was claiming a form of prophetic authority.15 He reformulated many of the rules, and restated them in a new collection (another mishneh torah). These rules of Qumran are written in a style of Hebrew relatively close to that of the Bible, particularly the priestly sections; as in Jeremiah’s reformula- tion of the law on slavery, no embarrassment is apparent at Qumran in reformulating Biblical rules—nor even in offering an entirely new text in which they are systematised. There is also a second—more radical—use made of the prophet- like-Moses tradition at Qumran.16 The “original rules” (hamishpatim harishonim) of the Community are said to be applicable “until the coming of the prophet and the Messiahs of Aaron and Israel”.17 Clearly, this trio of eschatological gures would have the authority to abrogate the “original rules”. The identity of “the prophet” with the prophet-like- Moses has been plausibly claimed because of the discovery at Qumran of a collection of testimonia (proof-texts), found in one of the smaller fragments (4QTest.), which includes the text of Deuteronomy 18 on the prophet-like-Moses.18 The functions of the prophet noted in sections 2.2–3 above are thus clearly manifest in the Qumran literature. And the prophet-like-Moses
15 See further Jackson 1981:349 n. 40. 16 See further Stone 1992:167. 17 1QS 9:11; see further Jackson 1981:349 n. 42. 18 Bruce 1960:49; Vermes 1977:185.
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tradition is taken to include an authority to change the law—though this power is here deferred until the eschatological, messianic future. These Old Testament and Qumran sources represent a long-standing and important Jewish institution, which we nd interpreted in different ways in the New Testament and Rabbinic Judaism.
4. The Role of Jesus in the New Testament
4.1 Jesus as a prophet-like-Moses Vermes has argued that the earliest title claimed by (or on behalf of ) Jesus was that of “prophet”, but that the more speci c identi cation of Jesus with the “prophet-like-Moses” arose only in the Gospel of John, well after Jesus’s death.19 This argument, however, assumes a radical understanding of the prophet-like-Moses model, that it neces- sarily entails a capacity to make permanent changes in the law, and is understood only in an eschatological, messianic context. ln fact, the nuances of the model are themselves found within the New Testa- ment. There is evidence in the synoptic gospels that the original claim was non-radical and non-eschatological, indeed quite in conformity with what we shall nd to be the early rabbinic understanding of the prophet-like-Moses. In the Sermon on the Mount, Jesus says (Matt. 5:17–18): Do not suppose that I have come to abolish the law and the prophets; I did not come to abolish, but to complete.20 I tell you this: so long as heaven and earth endure, not a letter not a stroke will disappear from the law until all that must happen has happened . . . Is the phrase “the law and the prophets” a hendiadys, referring to the To ra h itself, or to To ra h in general? Or does it mean the law, the To ra h, and the neviim, the prophets, as separate bodies of literature? Or might it indicate, as I suspect, a speci c reference to Deut. 18? I suggest that it is the law of the prophet that Jesus claims here to ful l. That certainly gives the greatest force to “I have come”—the claim that an historical act ful ls the promise of an historical act, that God would “raise up” such a prophet. Moreover, the activities of Jesus conform to what we know
19 Vermes 1973:87ff.; further, Jackson 1981. 20 Other translations: “ful l” (Greek: ); see further Jackson 1979:3f.
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to be the role of such a prophet. I suggest that Jesus in the Sermon on the Mount claims precisely the authority of a prophet-like-Moses.
4.2 Jesus as reformulator of the tradition One aspect of this is apparent from what follows immediately in the Sermon on the Mount: a prophetic reformulation of some of the Decalogue commands: You have learned that our forefathers were told, “Do not commit murder; anyone who commits murder must be brought to judgement.” But what I tell you is this: anyone who nurses anger against his brother must be brought to judgement. If he abuses his brother he must answer for it to the court . . . Of course, there is a consciousness here of opposing understandings of the commandment; this goes beyond the example of Jeremiah, giving a linguistically distinct but substantively identical version to the original. But the version given here is offered not as a better, or privileged, interpretation: it is presented rather as the original mean- ing, not as interpretation at all. Despite the af nity, which Daube has noted (1956:55–62), with a rabbinic form of argument, “the tone is not academic but nal, prophetic, maybe somewhat de ant. Nor is there any reasoning. The correct attitude is simply stated” (ibid., 58). Nor is there conceived to be any con ict with the existing law; rather, Jesus claims to provide a more complete version of it (ibid., 60). By implication, a prophet-like-Moses can indeed add to the law,21 just as Moses did himself in the valedictory addresses which make up much of the normative material of Deuteronomy,22 and just as the Teacher of Righteousness did in formulating the serakhim at Qumran. But in making such use of the prophetic power, we may note, neither Moses nor the Teacher of Righteousness claimed to be an eschatological or messianic gure. We may contrast with the Sermon an incident where Jesus does appear as engaged in debating rival interpretations. In Matthew’s ver- sion (12:9–14):
21 Deut. 13:1, MT; see section 2.4 above. 22 See further Jackson 2000:259f., 263f., on Deuteronomic normative material attributed to Moses.
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He went onto another place and entered their synagogue. A man was there with a withered arm, and they asked Jesus, ‘Is it permitted to heal on the Sabbath?’ (They wanted to frame a charge against him.) But he said to them, ‘Suppose you had one sheep which fell into a ditch on the Sabbath; is there one of you who would not catch hold of it and lift it out? And surely a man is worth far more than a sheep! It is therefore permitted to do good on the Sabbath.’ Turning to the man he said, ‘Stretch out you arm.’ He stretched it out, and it was made sound again like the other. But the Pharisees, on leaving the synagogue, laid a plot to do away with him. Here Jesus engages in elaborate argument—including a kal va4omer—in justi cation of his position. He does not claim his view to be self-evident, the result of either prophetic reformulation or change. And indeed, we know that comparable matters had for some time been debated. At Qumran, there were rules which prohibited, on the Sabbath, both the lifting of an animal out of a ditch, and even the saving of a man drowning in a pit or waterhole, through the use of a rope or other instruments.23 The kal va4omer of Jesus would therefore not have been self-evident. The legal interpretation of the situation was, at the very least, controversial.
4.3 Jesus as deviator from the Law? Elsewhere, Jesus’ teaching and authority seem of a rather different nature. This is the Matthaean version of an incident reproduced (with variations) in all three of the synoptic Gospels (Matt. 12:1–4, cf. Mark 2:23–26, Luke 6:1–4): Once about that time Jesus went through the corn elds on the Sabbath; and his disciples, feeling hungry, began to pluck some ears of corn and eat them. The Pharisees noticed this, and said to him, ‘Look, your disciples are doing something which is forbidden on the Sabbath.’ He answered, ‘Have you not read what David did when he and his men were hungry? He went into the House of God and ate the sacred bread, though neither he nor his men had a right to eat it, but only the priests.’ The clear implication of the Pharisees’ question is that, according to Pharisaic law at the time, such sabbath gleaning was not permitted.
23 1QS 11:13ff., 16ff.; see Schiffman 1975:121–128. Rabbinic law would regard desecration of the sabbath in the latter case as justi ed, in order to save life ( pikua4 nefesh). The incident concerning Jesus, however, is not one involving any immediate threat to life.
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Jesus replies by citing a precedent: that of David (before he became king), who ate and allowed his soldiers to eat the bread of the temple, even though, according to the law, it was reserved for the priests. The force of the precedent, according to Jesus’ argument, derives from the analogous justi cations in the two cases: David allowed it because his soldiers were hungry; the disciples are doing it for the same reason.24 Jesus is not here claiming to set a precedent, that it will always be permissible to pluck ears of corn on Shabbat. Nor is he even offering a rival interpretation of the law (as in the dispute over sabbath healing): that it is permitted to pluck ears of corn on Sabbath, contrary to the Pharisaic interpretation. Rather, Jesus here claims an authority compa- rable to that of David, to suspend the law on a particular occasion. A second example of this suspensory power might be considered a little trivial. As the story of the New Testament reaches it climax, Jesus travels to Jerusalem for the Passover (Matt. 21:1–5): They were now nearing Jerusalem; and when they reached Bethphage at the Mount of Olives, Jesus sent two disciples with these instructions: ‘Go to the village opposite, where you will at once nd a donkey tethered with her foal beside her; untie them, and bring them to me. If anyone speaks to you, say, “Our master needs them”; and he will let you take them at once.’ This was to ful l the prophecy which says,25 ‘Tell the daughter of Zion, “Here is your King, who comes to you in gentleness, riding on an ass, riding on the foal of a beast of burden.” ’ How can the disciples just go and take someone’s ass? It is private property. And the three synoptic Gospels show differing degrees of embarrassment or concern about this apparent breach of the law. Jesus is asking his disciples to steal, in order to enable him to enter Jerusa- lem in this way, and thereby to ful l the prophecy. Here in Matthew, Jesus anticipates that the owner will consent, once the particular need is pointed out. In Mark, this argument is elaborated: the disciples are
24 The hunger of David’s men occurs in all three versions, even though it is only in Matthew that the parallel with the hunger of the disciples is stressed. If the justi cation rested solely in the general authority of Jesus, as might appear from the claim that “the Son of Man is sovereign over the Sabbath” (Matt. 12:8, Mark 2:28, Luke 6:5), there would be no need for the stress on this special circumstance. In fact, there are clear indications in all three synoptics that the sovereignty claim was not part of the original story. In Matthew and Mark it forms the conclusion to further (and different) arguments; in both Mark and Luke it is introduced by: “he also said” ( ). 25 Zech. 9:9.
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to promise to return the animal without delay. Mark (uniquely) then goes on to record an actual challenge by “some bystanders”, who, on receiving this assurance, allow the disciples to proceed.26 But in Luke, which on this occasion has claims to be the oldest of the traditions, Jesus simply says: If anyone asks you, just say ‘the Lord has need of it’. In rabbinic terms, this amounts to tsorekh hashaah, the needs of the hour. Again here, there is no claim either to create a precedent or to adopt a new interpretation of the law; rather, we have a claim of authority to suspend the law on one particular occasion, a purely ad hoc measure.27 Such an authority to authorise a deviation28 is the principal theme of the rabbinic exegesis of the prophet-like-Moses passage (5.3, below). Not all the claims of Jesus to deviate from the law follow this mod- erate conception of the authority of the prophet-like-Moses. There are other sources where more radical claims are made, not merely to authorise suspension of the law on an ad hoc basis, but to amend it in perpetuity, and even to replace the old covenant with a new one—one in which, for example, circumcision would no longer be required of converts.29 We have seen how such a claim, still made in the name of the prophet-like-Moses, was associated at Qumran with messianic and eschatological expectations (section 3, above). Recall also the tempo- ral limitation of Jesus’ af rmation of the Law in the Sermon on the Mount: “so long as heaven and earth endure”, i.e. until the eschaton.
26 Mark 11:1–7, clearly an arti cial elaboration: there is no indication that the “bystanders” ( , v. 5) were the owners of the animal. 27 A further example: the use by Jesus of the oil given him by the woman at Bethany (Matt. 26:6–13, Mark 14:3–9, Luke 7:36–50, John 12:1–8); in Luke, the incident arises in the context of a challenge to Jesus’s prophetic status; see further Jackson 1981:354. 28 Not to justify it ex post facto; though we encounter that, exceptionally (on one read- ing of the incident), in the story of the woman taken in adultery, which occurs only in a pericope attached to the Gospel of John (7:53ff.). The prophet, generally speak- ing, does not function as a judge in the Bible. We do have occasions when prophets intervene in individual cases of dispute, most notably cases where they remind the king of the moral authority of the law that the king runs the risk of overriding, like that of the prophet Nathan in relation to David. However, for John, the authority of Jesus is conceived primarily as that of a king-messiah, including judicial authority—5:22, . The incorporation in John of the woman taken in adultery pericope, and its exclusion from the synoptics, is therefore coherent with the approaches of both. On Jesus’ role here, see further Derrett 1970:159f. 29 It was thus very much in the interests of the early Church, re ected particularly in the Pauline sources, to stress this form of authority. See particularly Vermes 1977:185, for this theme.
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John understands the prophet-like-Moses model in a similar way,30 and Peter, as recorded in Acts 3:22–23, explicitly uses Deut. 18 as a proof text in preaching the second coming of Jesus.31 Small wonder that this proved disturbing to the Rabbis.
5. The Early Rabbinic Sources
5.1 The Rabbinic appropriation of the prophetic model The Rabbis located prophetic authority within a history of tradition which commenced with Moses and ended with themselves. As the famous Mishnah Avot 1:1 puts it: Moses received the law from Sinai and committed it to Joshua and Joshua to the elders, and the elders to the prophets, and the prophets committed it to the men of the great synagogue . . . There was thus no antithesis or con ict between law and prophecy; between the rabbi on the one hand and the prophet on the other. Prophecy itself was claimed to have ceased,32 but prophetic authority, itself inherited from Moses, was conceived to have been handed on to the Rabbis. And while the prophetic medium of revelation was, for the most part, replaced by another—the interpretative, argumentative mode of the Rabbis, as developed in the Oral Law—we can still trace within the rabbinic literature a continuation of those functions in relation to the law which originated in the prophet-like-Moses tradition. We must consider the ways in which the rabbis appropriated these particular aspects of prophetic authority.
5.2 Mishnah as restatement of law The Mishnah is itself to be understood in this context. Its very title harks back to Deuteronomy, which, as suggested above, can itself be regarded as a rst example of the genre. According to the theory of the Oral Law, the Mishnah was not a later invention; it was given to Moses and handed down the chain of tradition. Just as Deuteronomy
30 1:21, 6:14–15, 7:37–40; Jackson 1981:348, 356. 31 See further infra, 56. 32 See Urbach 1947 on the dating and signi cance of these traditions; se further Jackson 1981:357 n. 7.
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was conceived to complete the written Torah, so the Mishnah was taken (for the moment) to complete33 the Oral law. In both cases, “repetition” takes the form of a new formulation of rules—even introducing some entirely new material—but nevertheless the thematic links, and perhaps even more the repetition of the act of enunciation, in the rst case by the prophet Moses himself, in the second by those who so prominently claimed to have inherited his mantle, justi ed the conclusion that the second document was essentially the completion of the rst. The com- piler of the Mishnah was not, as we have seen, the rst to make such a claim in the postbiblical period. Exactly the same had been done by the Teacher of Righteousness in the serekh of the Qumran community.
5.3 The Rabbinic power of suspension of the law The rabbinic exegesis of the prophet-like-Moses texts explores the relationship of the various elements of the Biblical tradition (the test of status by “signs”, the authority over the law, and the relation to false prophecy) in a manner such as to preserve the force of the institution without opening the door to radical, eschatological—and speci cally christological—interpretations. Consider rst Sanh. 90a: R. Abbahu said in R. Jo4anan’s name: in every matter (bakol ), if a prophet tells you to transgress (im yomar lekha avor) the commands of the Torah, obey him, with the exception of idolatry: should he even cause the sun to stand still in the middle of the heavens for you (as proof of divine inspiration), do not Hearken to him. Here a typical ot is mentioned as the means by which the prophet seeks to prove his authority over the law. But the case falls squarely within Deut. 13: since he is telling you to commit idolatry (the case envis- aged in Deut. 13), he is proved thereby to be a navi sheker, despite the performance of the miracle. This apart, there is a general authority of a prophet to command you to transgress, laavor divre Torah. That sounds very radical. But a baraita earlier on the same page suggests an important distinction: Our Rabbis taught: if one prophesies so as to eradicate (laakor) a law of the Torah, he is liable (to death); partially to con rm and partially to
33 Even “ful l”, in the sense Daube 1956:60 attributes to in the Sermon on the Mount.
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annul it,—R. Shimon exempts him.34 But as for idolatry, even if he said, ‘Serve it today and destroy it tomorrow,’ all declare him liable. There is thus a distinction between a command to transgress a law (avor) in R. Jo4anan’s dictum, and an instruction to “eradicate” (laakor) a law. The former—ad hoc suspension—is (with the exception of idolatry) within the authority of the prophet-like-Moses; the latter—a permanent annulment (a breach of bal tigra) renders the prophet guilty of false prophecy.35 There is a second terminological distinction between these two pas- sages, which further supports this distinction. In the rst passage, the dictum of R. Jo4anan, it is signi cant that the language here is im yomar lekha—supposing that the prophet speaks to his audience directly, in the second person singular. Thus the text contemplates direct communica- tion on a particular occasion. He is not making a general pronounce- ment; he is merely suspending the law on this particular occasion and for those whom he addresses. The second text lacks this direct speech audience. It contemplates a prophecy permanently to uproot a law of the Torah, directed to the people generally. Without more, this argument might appear to hang on two relatively arbitrary linguistic choices. But support comes from a third passage, in Yevamot. This is an exegesis of the biblical phrase, elav tishmeun, which is used to express the obligation of the Israelites to obey the prophet- like-Moses (Yeb. 90b, Sifre ad Deut. 18:15): Come and hear: unto him ye shall Hearken, even if he tells you36 “Trans- gress (avor) any of all the commandments of the Torah” as in the case, for instance, of Elijah on Mount Carmel,37 obey him in every respect in accordance with the needs of the hour. The example shows clearly that the prophet-like-Moses tradition is understood as conferring an authority to suspend the law in particular
34 There is an implication here that the opinion of R. Shimon is a minority view, and that the majority regard this, too, as a case of false prophecy. It is tempting, though speculative, to see here an allusion to the Christian position. 35 See Maimonides, Hilkhot Yesode Hatorah 9:1, who expresses the rule (and extends it to heretical interpretation) in the terminology of the biblical texts: im yaamod ish . . . veyaaseh ot o mofet veyomar shehashem shelaho lehosif o ligroa mitsvah o lefaresh bemitsvah min hamitsvot perush shelo shamanu mimosheh, hare zeh navi sheker. 36 A lu omer lekha—the same type of formulation, implying direct speech from the prophet to those he commands, as in the dictum of R. Jo4anan. 37 Where he offered a sacri ce on an improvised altar—1 Kings 18:31ff.—despite the prohibition against offering sacri ces outside the temple.
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cases. Elijah authorised his followers to sacri ce on Mount Carmel at a time when, at least according to later tradition, the cult had already been centralised. According to tradition, he departed from the law. Why? In passages which go into greater detail, the argument is put: if the followers hadn’t been allowed to sacri ce to our God there, on Mount Carmel, they would have adopted idolatry, and sacri ced to alien pagan gods there. The passage then continues: hakol le shaah, everything depends upon the circumstances of the time. But if the time is right and the prophet authorises the suspension, shema lo, you must obey him.
5.4 Restriction of the tradition The rabbis both appropriated and restricted the tradition of the prophet-like-Moses.38 The interpretation which cited Elijah as an example of the authority conferred in Deut. 1839 became the basis of a rabbinic power of legislation in emergency situations.40 Appropriation was facilitated by an interpretation, that the prophet does not have to perform miracles in proof of his status provided that he is mum4eh lekha shehu tsaddik gamur,41 publicly known to be righteous. The principle was adopted that eyn navi rashai le4addesh od davar meattah: a prophet has no greater power to innovate than a rabbi,42 and this was graphically illustrated in a comment by Maimonides: Even if 1000 prophets like Elijah and Elisha take one view, and 1001 rabbis take an opposite view, we follow the majority.43 To say that, however, seems at the same time to make a vital concession: each prophet, though counted as no more than a single rabbi, is at least counted as that. What would Rambam’s view have been had the num- bers been reversed, had 1000 rabbis been opposed by 1001 prophets? On the face of it, the implication seems not to be totally excluded, that majority opinion is not necessarily that of the rabbinic authorities.44
38 For a summary of rabbinic attitudes towards the relationship between prophecy and law, see Stone 1992:ss.III and IV. 39 Yeb. 90b, Sifre ad Deut. 18:15, supra 27. 40 Cf. Elon 1978:I.426. 41 Rashi ad Deut.18:21. 42 Sifra ad Lev. 27:34, Behukkotai 13:7. See also Stone 1992:172, on Deut. Rabb. 8:6. 43 Mishnah Commentary, Preface. 44 A traditional response I have encountered to this point is to say that Maimonides contemplates only prophets who are also recognised as halakhic experts.
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Some aspects of rabbinic restrictiveness of the “prophet-like-Moses” tradition appear directly to allude to Christian concerns. The Baraita in Sanh.90a records that if a prophet seeks “partially to con rm and partially to annul (a law of the Torah), R. Simeon exempts” (but by implication the majority condemn). From the rabbinic standpoint, this could well be a description of the approach of the Sermon on the Mount. Again, the phrase yakim lekha (Deut. 18:15) attracts a comment in Sifre (ad loc.) that this means velo lagoyim: a “prophet-like-Moses” will minister to the Jews, not the gentiles. This sounds very much like an argument designed to rebut any suggestion that Jesus had ful lled this role. It is, in fact, possible to assemble an impressive list of institutions where rabbinic law appears to have developed in response to the growing in uence of the Christian story. We might view in this light rejection of the authority of the bat kol 45 (contrast the role of the on the occasions of the baptism and trans guration of Jesus); the rejection of miracles in proof of halakhic propositions (as still attempted by R. Eliezer in the famous story of the oven of Akhnai, B.M. 59b); the rejection by the rabbis of testes singulares, used in the New Testament in proof of the divinity of Jesus;46 and indeed the disappearance in Palestine (but not in Babylonia) of extra-legal reasoning in judicial decision-making.47
5.5 Historical summary We are now in a position to summarise the development of the status of the “prophet-like-Moses” in relation to the law in both Christian and Jewish sources. There existed both eschatological and non-eschatologi- cal models of the “prophet-like-Moses” in the Second Commonwealth period, with corresponding differences in relation to the Law. The non- eschatological prophet was viewed in terms of the sectarianism of the period: he could authorise individual actions which suspended the Law, teach his sect his own interpretation of the law, and judge individual cases against the Law. Of these three functions, the rst is directly and the third indirectly attested in the rabbinic sources and the second is manifested at Qumran. Re ections of all three are found in the New
45 Baba Metsia 59b; see also Jackson 1979a:46. 46 See ch. 4, infra. 47 Ben-Menahem 1991:55–98.
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Testament, sometimes in the context of the rst phase of an overtly two-phase historical account in which the historical Jesus represents the non-eschatological “prophet-like-Moses” while the eschatological prophet, who will possess the power to abrogate law—a model denied by the rabbis but anticipated in the Qumran Community Rule—is identi- ed with the Jesus of the Second Coming (Matthew, Acts). Ultimately, Rabbinic Judaism decided that it had had enough of the whole concept. The continuation of prophecy was denied48 and even the power of the prophet to suspend the law in particular cases came to be transferred to the rabbinic law court itself. Even the great Moses himself, the very source of the tradition (“There has never yet risen in Israel a prophet- like-Moses”—Deut. 34:10–12) came to lose his prophetic identi cation and became Moshe Rabbenu. The tradition that an eschatological Elijah would come to resolve outstanding doubts in the law survived, but on the whole Judaism preferred to leave the question of the status of the law in the eschatological age in respectful silence.
APPENDIX On Prophecy and Analogy49
My argument raises questions about the nature of prophecy in the Judaeo-Christian tradition, and particularly about the notion of ful l- ment of prophecy which is so central to both Judaism and Christian- ity. There is a tendency in secular discourse to regard the prophetic function as something magical, something primitive, something which we cannot quite take at face value: the prophet writes or preaches a prediction that a certain event will happen in the future; in the future that event quite unselfconsciously occurs; and then the prophecy is taken to have been ful lled. I do not believe that this was the way ful lment of prophecy was conceived to work. Rather, it was open to a member of the community, having read or heard a prophecy from an earlier era, to set about carrying it out—deliberately to imitate what had been written earlier on—and then to claim ful lment of the prophecy. This was not conceived to be cheating, since God would only permit such
48 See further Stone 1992:175ff. for an insightful analysis of Sifre Deut. 41, and its relationship to the chain of tradition in M. Avot 1:1. 49 For a sensitive development of this theme, see Stone 1992:s.II.
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actions to be done and to be recognised as a ful lment if he really did intend the prophecy to be ful lled in that way. There is, therefore, no embarrassment in the claim of the Gospels that Jesus performed certain actions50 “in order that the prophecy of . . . should be ful lled”. Perhaps it was this very phenomenon which prompted what I see as a development from ful lment of prophecies at the level of narrative structure to ful lment of literary analogies, which call for more detailed knowledge of the sources, and which, as we nd them in the gospels, can rest upon allusion to a combination of earlier sources.51 Prophetic ful lment, as here described, rests upon particular con- ceptions of the nature of the language of revelation, and of the use of analogy in ascertaining, indeed constructing, its meaning. Prophecy therefore must take its place as part of a wider account of the devel- opment of Jewish epistemology.52 Within such a wider enterprise, a developmental view of the forms of analogy may contribute to our understanding of the process which led to the complex of prophetic claims which characterise the gospels. The distinction between narrative and literary analogy may be understood within such a developmental account.
50 Such as authorising the taking of the foal—section 4.3 supra. 51 As in Kermode’s arguments, infra 39f., especially his account of the thirty shekels of silver. 52 This theme is taken up in Jackson 1991, 1992a, 1993.
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JACKSON_F4_32-57.indd 32 9/27/2007 7:49:34 PM CHAPTER THREE
THE TRIALS OF JESUS AND JEREMIAH
1. The Dif culties facing an Historical Account
Volumes have been written on the trial of Jesus. There are many appar- ent anomalies in the accounts of the trial and many problems from the viewpoint of the legal historian.1 The problems are twofold, literary and historical: on the one hand, the gospel accounts themselves contain notable internal discrepancies; on the other, the story they tell is signi cantly at odds with contempo- rary law and practice, both Jewish and Roman. As to the internal coherence of the gospels, just a few of many discrepancies may be noted:2
(1) The arrest: the Synoptic Gospels see the arrest as made by an armed crowd sent out by the Jewish authorities (variously described)3 alone, while John writes that the arrest was carried out by a cohort of Roman troops in company with “the of cers from the chief priests and the Pharisees”.4
1 See especially Winter 1961; Brandon 1968; Cohn 1967, 1971; Derrett 1970:389–460. 2 Still important is the study of Bickermann 1935. 3 Mark 14:43: “And immediately, while he was still speaking, Judas came, one of the twelve, and with him a crowd with swords and clubs, from the chief priests and the scribes and the elders”; Matt. 26:47: “While he was still speaking, Judas came, one of the twelve, and with him a great crowd with swords and clubs, from the chief priests and the elders of the people”; Luke 22:47: “While he was still speaking, there came a crowd, and the man called Judas, one of the twelve, was leading them . . . (52) Then Jesus said to the chief priests and of cers of the temple and elders . . .”. 4 John 18:12: “So the band of soldiers ( ) and their captain ( ) and the of cers of the Jews seized Jesus and bound him.” Cf. Winter 1974:ch. 5, noting that it is particularly remarkable that John has Jesus arrested by Roman military per- sonnel, given the decidedly anti-Jewish feelings shown by John throughout. Indeed, John places the burden of responsibility for the death of Jesus on the shoulders of the Jews and exonerates the Governor completely. All the more striking, argues Winter, that he seems to preserve what may be an early and authentic tradition of the arrest by Roman troops. See also Winter on the relationship between John 18:12 and John 18:3: “So Judas, procuring a band of soldiers ( ) and some of cers from the chief priests and the Pharisees, went there with lanterns and torches and weapons”, the latter perhaps seeking to con ate the two traditions.
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(2) The charge: while the charge in the Jewish hearing is ultimately blasphemy in Matt. 26:65 and Mark 14:64, in both accounts the condemnation is followed immediately by a contemptuous chal- lenge to the prophetic status of Jesus: “Now, Messiah, if you are a prophet, tell us who hit you” (Matt. 26:68), suggestive of an account in which the charge had actually been false prophecy.5 No charge is mentioned in either Luke or John. (3) Time and place of the Jewish proceedings: Mark and Mark have two phases of procedure before the Jewish authorities: at night, they led Jesus “to the high priest . . . And Peter had followed him at a distance, right into the courtyard ( ) of the high priest (Mark 14:53–55, suggestive that this is the private residence of the High Priest, cf. Matt. 26:57–59); “And as soon as it was morning the chief priests . . . with the elders and scribes, and the whole coun- cil ( ) held a consultation” (Mark 15:1, cf. Matt. 27:1). In Luke it is stated explicitly that Jesus was taken at night to “the high priest’s house” ( , 22:54), but the questioning does not occur then or there: “When day came . . . they led him away to their council” ( , 22:66).6 John has Jesus taken at night7 rst to the father-in-law of Caiaphas, Annas (himself a high priest), then to Caiaphas, then the following morning8 to the praetorium. (4) Identity of the body conducting the Jewish proceedings: Mark stresses the involvement of “the whole council ( )” at both stages of the Jewish proceeding, the morning proceeding being conducted by “the chief priests, with the elders and scribes, and the whole council” (15:1); Matthew fails to mention either the scribes or the Sanhedrin in relation to the morning proceeding (27:1); in Luke it is “the assembly of the elders of the people [who] gathered together, both chief priests and scribes” and who led Jesus to the Sanhedrin (22:26); John records no meeting of the Sanhedrin,
5 Cf. Jeremias 1961:79, arguing also that execution for this crime was required to be carried out at a feast “before all the people”. 6 Leaney 1966:274 comments that Luke’s account “seems like a correction of the unlikely procedure in Mark of holding an inquiry in the middle of the night and another meeting in the early morning”; cf. Kermode 1979:96f. 7 The arrest is made “with lanterns and torches” (18:3). 8 18:28: “Then they led Jesus from the house of Caiaphas to the praetorium. It was early.”
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nor even the presence of other high priests, elders or scribes at the interrogation by Annas. (5) The high priest’s question and Jesus’ reaction: In Mark, Jesus eventu- ally responds to the question of the high priest: “Are you the Christ, the Son of the Blessed?” with the words: “I am ( ); and you will see the Son of man seated at the right hand of Power, and coming with the clouds of heaven,” which is immediately interpreted by the high priest as a confession of blasphemy (14:62–64); in Mat- thew, the question is: “tell us if you are the Christ, the Son of God”, to which Jesus retorts “You have said so ( ). But I tell you, hereafter you will see the Son of man seated at the right hand of Power, and coming on the clouds of heaven.” (26:63–66), but this is interpreted as a confession, as in Mark; in Luke, the question to which Jesus responds is: “Are you the Son of God, then?” (after a question about “the Christ” is avoided) and he replies, without more: “You say that I am” ( ), again interpreted as a confession (22:70–71); in John, there is no speci c accusation: “The high priest then questioned Jesus about his disciples and his teaching” and Jesus replies that he has always preached publicly, and the question should be posed of his audience (18:19–21). (6) Did the Jews claim the right to exercise capital jurisdiction?9 John 18:31 has the Jews deny that they have jurisdiction to condemn an accused to death: “It is not lawful for us to put any man to death”;10 Mark and Matthew have the Sanhedrin effect just such
9 There is no need, in my view, to resolve this issue in historical terms. If the Jews had capital jurisdiction, it does not follow necessarily that they exercised it, or exercised it independently of Pilate’s imprimatur. If they did not have it, it remains possible that they proceeded nonetheless—a possibility suggested by Josephus’ account of the trial and execution of James, Ant. XX.200: “Ananus thought that he had a favorable opportunity because Festus was dead and Albinus was still on the way. And so he convened the judges of the Sanhedrin and brought before them a man named James, the brother of Jesus who was called the Christ, and certain others. He accused them of having transgressed the law and delivered them up to be stoned” (Feldman’s translation, Loeb edition)—despite the claim of Josephus (at 202; see further Schürer 1973:II.222–223) that the Sanhedrin was not allowed to meet without the consent of the governor. We are not told here the nature of the charge, but the penalty is stoning (not hanging or cruci xion). Against the authenticity of this passage, see Rajak 1983:131 n. 73. For a detailed review from the Roman sources, see Schürer 1973:II.219–20 n. 80. 10 In context, this is a denial of capital jurisdiction, and not merely of the power to execute a capital sentence without the consent of the Roman authority, since it appears as a response to Pilate’s invitation: “Take him yourselves and judge him by your own law.”
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a condemnation (“What is your decision?” And they all con- demned him as deserving death” ( —Mark 14:64); “What is your judgment?” They answered, “He deserves death” ( ) b ` , )—Matt. 26:66. Luke, though recording a proceeding before the Sanhedrin, mentions no verdict given by it.11 (7) The charges before Pilate: these are not stated in Mark or Matthew, but are left to be inferred from Pilate’s question: “Are you the King of the Jews?” (8, below); following that, the accusers level “many [unspeci ed] charges” (Mark 14:4, Matt. 26:13–14). In Luke, we nd a much more speci c accusation: “We found this man perverting our nation, and forbidding us to give tribute to Caesar, and saying that he himself is Christ a king” (23:2), then (after the ) “He stirs up the people, teaching throughout all Judea, from Galilee even to this place” (23:5). In John, “Pilate went out to them12 and said, “What accusation do you bring against this man?” They answered him, “If this man were not an evildoer ( ), we would not have handed him over” (18:29–30), but this leads Pilate eventually to put the “King of the Jews” question to Jesus (18:33). (8) Pilate’s question and Jesus’ reaction: The pattern of reluctance and ambiguous answer is followed also in the accounts of the inter- rogation by Pilate. In all four Gospels, the question posed is “Are you the King of the Jews?” (Mark 15:2, Matt. 27:21, Luke 23:3, John 18:33), but here the “you say so . . .” form of response ( , in all three), echoing that to the high priest in Matthew and Luke (5 above), and found here in all three synoptics (but not in John, where the answer is theologically puzzling to Pilate, leading him to the question: “What is truth?”) is not interpreted by the interroga- tor as a confession, as is shown by the continuation of accusations (and Jesus’ silence in the face of them) and the nature of Pilate’s response (especially in Luke).13
11 Cf. Flusser 1973:12. Winter 1974:41, argues against the view that this is due to Luke’s carelessness in copying Mark, noting that the author of Luke-Acts allows Paul to say in Acts 13:27–28: “The inhabitants of Jerusalem and their rulers . . . nding no cause of death [in Jesus], asked Pilate that he should be killed.” 12 Presumably, the High Priest and his entourage; see (4) above. 13 It is noteworthy that the Synoptics are more consistent here than in (5) above, but this consistency may have more to do with the literary patterning of the relationship between the two interrogations than with the historicity of the dialogue.
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(9) The attitude of Pilate: in both Luke and John, Pilate explicitly seeks to exonerate Jesus: “And Pilate said to the chief priests and the multitudes, ‘I nd no crime in this man’ ” (Luke 23:4, cf. John 18:38, where the audience is “the Jews”), whereas in Mark and Matthew the result of the interrogation is that Pilate “wondered” ( , Mark 15:5, Matt. 16:14). (10) Luke, uniquely, includes some form of hearing before Herod Antipas (presumably in his capacity as tetrarch of Galilee).14 (11) The relations between the Jewish authorities and the crowd: in Mark (15:11–15), it is “the chief priests [who] stirred up the crowd to have him release for them Barab’bas instead,” and Pilate, “wishing to satisfy the crowd” (who are shouting: “Crucify him”), accedes to their request. Matthew’s account is similar: “Now the chief priests and the elders persuaded the people to ask for Barab’bas and destroy Jesus” (27:20). Luke, by contrast, has the leadership join in the shout: “But they all [“the chief priests and the rulers and the people”, 23:13] cried out together, “Away with this man, and release to us Barabbas” (23:18). John does not mention “the crowd” at all; though he refers on occasion to “the Jews”, in context this means “the chief priests and the of cers”, and it is they who shout “Crucify him, crucify him!” (19:6).
Equally dif cult is the relationship between the gospels and contem- porary law, both Jewish and Roman. As to the former, Kermode sum- marises some of the dif culties:15 Many scholars accept that there could not have been a night trial before the Sanhedrin;16 that although it is true that capital sentences had to be
14 Leaney 1966:280, comparing the role of Agrippa in the trial of Paul in Acts 25:13ff. According to Luke 13:31–32, Herod Antipas, who had already executed John the Baptist, sought also the death of Jesus. See Schürer 1973:I.349–50; Flusser 1973:11. See also Sherwin-White 1963:31, on the principles of forum delicti and forum domicilii. The possibility that Luke is here taking seriously the formal jurisdictional position may be supported by the fact that he does not present the Jewish hearing as a meeting of the Sanhedrin, but rather as a preliminary investigation before the High Priest; the formal jurisdiction of the Sanhedrin at that time was limited to the 11 toparchies of Judaea proper. Scheler 1990 sees a diplomatic reason for Pilate’s “referral”, and notes that Pilate had been reprimanded by the emperor Tiberius for offending the Jewish leaders on two previous occasions. 15 1979:112. The annotations are mine. See further literature cited n. 1, supra. See here also Blinzler 1959:149–157. 16 See M. Sanh. 4:1.
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con rmed the following morning,17 this could not be done on a feast day; that no accusation of blasphemy could have succeeded on the evidence;18 that even if it had, the penalty would have been stoning and the matter would not have gone before the Roman governor. Additional problems arise in relation to the reliance upon a confession,19 and perhaps also the absence of “forewarning”.20 As for the relationship to Roman Law, the release of Barabbas is perhaps the most noted problem.21 It is far from clear that a Roman
17 See M. Sanh. 5:5. 18 M. Sanh. 7:5 (death by stoning only where the tetragrammaton was uttered after hatraah); in B.T. Sanh. 56a this is extended to cover use of one of the divine attributes, but this was later regarded as giving rise only to ogging. See esp. Cohn 1971:129–134, though also rejecting the false prophecy hypothesis. Various attempts have been made to explain the blasphemy charge. Derrett 1970:453–55 interprets killel as “defames”, “undervalues” (comparing Lev. 20:9), but it is not clear to me how, even if correct, this would assist the argument. Levy 1981:60–62 argues that the Gospel accounts of the trial of Jesus demonstrate a broadening of blasphemy to include not only reviling God but also “claiming his kinship, powers, attributes or honors.” For criticism, see Ball 1983:1007ff. A strained attempt has been made by Betz 1988:6–7 to explain the blasphemy charge in terms of 1st century interpretation. He argues that the Temple Scroll 64:6–13, in its interpretation of Deut. 21:23 kilelat elohim, extends blasphemy to cover treason. Certainly, Deut. 21:23 is there understood as an offence of (what we might call) treason: “If a man has informed against his people and has delivered his people to a foreign nation . . . If a man has committed a crime punishable by death and has run to the midst of the Gentiles and has cursed his people and the children of Israel” (Baumgarten’s translation, 1977:173). But this does not make it an offence of blasphemy merely because of the common terminology of killel with Exodus 22:27. Moreover, there is not the slightest connection between the offence of “blasphemy” as here constructed in the Temple Scroll and the “confessions” of Jesus in Mark and Matthew, which prompt the condemnation for . More generally, we should beware of too ready assimilation of the Greek concept of in the New Testa- ment with those Hebrew concepts which, for convenience, we refer to by the English word “blasphemy”. The Greek term is not used in the LXX to render the “blasphemy” references in any of Exod. 22:27, Lev. 24 or I Kings 21 (the accusation against Naboth, on which see further infra section 5); on its use elsewhere in the LXX, see Sanders 1990:58. Sanders 1990:57–67 has reviewed the issue, noting the wide range of the Greek root as seen also in Philo and Josephus, but hesitating to use this as evidence of a legal usage which would justify the synoptic trial accounts. He concludes that the case for blasphemy in Mark 2:1–12 is “extremely weak” (1990:63), and that “there is no obvious or straightforward instance of blasphemy in the Markan trial scene” (1990:65). Nevertheless, he suggests that the overthrowing of the tables in the Temple might have been considered “an affront to God and thus blasphemous” (1990:67). 19 Tosefta Shebuot 3:8; Sifre Deut. ad Deut. 19:15 = Tosefta Shebuot 5:4; Tosefta Sanhedrin 9:4, 11:1. See Mendelsohn 1891:133f.; Kirschenbaum 1970:34–49. 20 The rabbinic hatraah: T. Sanh 11:2: “If he be warned and answer nothing, or if he be warned and nod his head, or even say, “I know,” he cannot be made liable to the death penalty; he is not liable until he say, “I know; but even so I am committing the offence.” We should not, however, assume uncritically that all aspects of Mishnaic law and procedure are to be read back to the early rst century. 21 Kermode, 1979:69f.: “It is most improbable that there could have been an event
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prefect (a lesser status than that of procurator)22 had the power to pardon a person convicted of a capital offence. Equally unclear is the extent of his powers of delegation, both of investigative and police powers, such as would be needed to make historical sense of the rela- tions between the Jewish and Roman authorities.23 Nor, when it came to the Roman hearing, is it clear whether there would have been a charge under Roman criminal statutes (and, if so, which)24 or under the more general procedure extra ordinem.25
2. The Trial as a Literary Construction
An alternative approach to the trial narratives is to view them not according to the criteria of history, but rather of literature—as a lit- erary text constructed to allude to a wide variety of Old Testament texts, with the theological purpose of showing that Jesus was himself the ful lment of prophecy. There is no doubt that the Passion narratives contain an immense amount of Old Testament allusion. Kermode offers the following catalogue:26 The false witnesses at the Sanhedrin trial ful l texts in Psalms 35 and 109; the silence of Jesus before his accusers ful ls Psalm 38 (“I behave like a man who cannot hear and whose tongue offers no defence,” here assimilated to the “malicious witnesses . . . question me on matters of which I know nothing” of Psalm 35) and from the Suffering Servant passage in Isaiah 35 (“He was af icted, he submitted to be struck down and did not
corresponding to the release of Barabbas; that story may arise from an ideological need to distinguish Jesus from the zealots and freedom- ghters of the period . . .” 22 Meier 1986 notes that Tacitus (see 48, infra) was in error in describing Pilate as a procurator, as now shown from an inscription discovered at Caesarea Maritima in 1961. 23 Cohn 1971:11. 24 Burkill 1970; Winter 1974:10, who regards Jesus as having been condemned for sedition under the Lex Cornelia de Sicariis et Vene cis (Digest XLVIII.8.3.4), and quotes Paul, Sententiae 5.22.1 for the availability of cruci xion here: auctores seditionis et tumultus vel concitatores populi, pro qualitate dignitatis, aut in crucem tolluntur aut bestiis obiiciuntur aut in insulam deportantur. Others have suggested the lex Julia de Maiestate. 25 Sherwin-White 1963:ch. 2 argues that a general charge before Pilate, rather than a charge of a speci c offence against Roman statutory criminal law, was compatible with jurisdiction extra ordinem. Against the notion of any Roman “trial” at all, see Mil- lar 1990:378. 26 1979:110. See also Kermode, at 1979:85, on the use of Psalms 41:9, “Even my bosom friend, whom I trusted, who ate of my bread, betrays me”; at 1979:86, on the 30 pieces of silver (Zechariah 11:12); and at 1079:106 on Psalm 22.
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open his mouth”). The spitting and buffeting are related to a whole cento of texts; the covering of the face has been traced to a misunderstanding of another Suffering Servant verse (53:3). Matthew omits it, Luke adds a bit of narrative to explain it. The blows of the servants ful l Isaiah 50:6. As to the Cruci xion, Mark “contents itself with portraying the picture of the cruci ed in a few verses according to the ‘Passion Testimonies.’ ” Mark has wine mingled with myrrh, from Proverbs 31; Matthew, rework- ing him, remembers Psalm 69 and substitutes gall for myrrh. The division of garments ful ls Psalm 22; the eclipse, the last words, the vinegar and the death cry all have Old Testament sources. This list could be much longer . . . Amongst theologians, however, one text has enjoyed primacy as the model for the trial and death of Jesus: the Suffering Servant song in Isaiah 53.27 Lane’s commentary on Mark, for example, nds in Isa. 53:4–12 “an account of obedient suffering, expressed by the sustaining of mockery, by silence before accusers, by forgiveness, by intercession for the many, by burial with the condemned . . .”28 But the Suffering Servant passage in Isaiah is notoriously dif cult. The establishment of the Hebrew text is not without its problems, and it is virtually impos- sible for a translator—particularly a Christian translator—to approach it entirely independently of its christological use.29 Take the passage from Lane, here quoted. The terms “accusers” and “burial” suggest trial on the one hand, execution on the other. But neither element is clearly present in Isaiah.30 Indeed, it is quite possible to read the Suf- fering Servant passage as the song of a servant who was oppressed but saved, and who did not suffer death.31 A comparison of the New English Bible with older translations32 is instructive. The Servant is certainly threatened with death, but in the event the Lord “healed him who had
27 A view not con ned to theologians. See also Derrett 1970:451–53, suggesting two trials in the narrative identi ed through the poetry. 28 Lane 1974:487. 29 E.g. “pierced for our transgressions” (Isa. 53:5, NEB), where the Hebrew is me4olal ( JPS: “wounded”). In uve4avurato nirpa lanu ( JPS: “and by his bruises we were healed”), we may well have a re ection on the talionic formula: 4avurah ta4at 4avurah (Exod. 21:25). 30 The closest the text comes to any reference to law is in “without justice, he was taken away” (v. 8: meotser umimishpat lukka4). As for execution, the closest is “He was assigned a grave with the wicked, a burial place among the refuse of mankind” (NEB, v. 9: vayitten et reshaim kivro). 31 After writing this, I found that Whybray 1990 has comprehensively analysed the Hebrew of the song and come to this conclusion, in his monograph signi cantly entitled Thanksgiving for a Liberated Prophet: An Interpretation of Isaiah Chapter 53. 32 Including that of the Jewish Publication Society.
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made himself a sacri ce for sin; so shall he enjoy long life and see his children’s children” (Isa. 53:10). Indeed, Lane himself comments that “Judaism was totally unprepared for a suffering and cruci ed Messiah” (1974:486). However, the theme of the threatened servant, who is pre- pared to sacri ce himself, was well-known in Judaism: as in the story of Isaac. The Suffering Servant certainly contributes to the literary construction of the Passion, but its contribution is theological (vicari- ous atonement) rather than narrative (trial, death and resurrection). We may outline the following combination of major themes which contribute to the Passion:
1. A narrative of an obedient servant saved by God (Isaac). 2. A narrative of a prophet threatened in a trial but (again) saved ( Jeremiah).33 3. A liturgical song of an oppressed servant who suffers physical oppres- sion to atone for the guilt of others, but is saved by God and healed (Isaiah).
The rst two of these are narrative sources, the third poetic. I suggest that this is signi cant in terms of the types and history of “prophetic ful lment”. Consider the following analysis of Matthew’s story of the thirty pieces of silver, which the chief priests offer Judas to betray Jesus:34 Matthew invented this sum of money, but for him invention almost always follows a set form. His view of what might have happened is under the control of his respect for the Old Testament repertoire of Messianic prophecies and gures; so he nds his thirty pieces of silver in Zechariah (11:12): “They weighed for my price 30 pieces of silver.” There is no evident consonance between the context of this passage in Zechariah and Matthew’s new use of it. And although this silver sounds a plausible price—in the ordinary way passes the test of narrative plausibility—it is important to see that it belongs, in a sense, to another plot altogether, a plot founded on occult connections between the new narrative and many old ones, a plot not at all dependent on sequentiality or plausibil- ity. There may be a constellation of texts, of which the new one is the essential illuminant, that which confers an ultimate, unsuspected meaning. But since this is a narrative, such consonances have to be inserted into the syntagmatic ow.
33 Discussed further in section 3 below. 34 Kermode 1979:86f.
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Kermode argues that it is because of this lack of “syntagmatic ow” that “Matthew nds himself embarked upon a sub-plot”:35 He remembers two texts in Jeremiah: in the rst the prophet buys a ask at the potter’s house and breaks it at the burial ground, as a sign that the kings have lled Jerusalem with innocent blood; in the second he buys a eld for 17 shekels of silver; Matthew’s Judas confesses that he has betrayed the blood of the innocent, and casts his silver into the Temple (this is from Zachariah’s “I cast them into the Lord’s house”). Since such money could not be received in the Temple, the chief priests use it to purchase the potter’s eld to bury strangers in. Matthew proceeds to build his “sub-plot” on these texts, and leads up to an explicit “ful llment citation” at Matt. 27:9–10. The importance of this analysis resides in the fact that the ful llment citation (to a narrative incident in Jeremiah) is made at Kermode’s level of sub-plot; the mere literary allusion, to Zechariah’s 30 shekels, with its lack of narrative analogy, was not regarded as suf cient to justify a ful llment citation. In fact, we need not rely upon a literary analogy for the source of the vicarious atonement theme within the Passion narrative. Von Rad sees the Servant himself as embodying the prophet-like-Moses tradi- tion. For Moses himself not only mediates the Law but also, as Von Rad points out, “suffers . . . and at the last dies vicariously for the sins of his people.”36 There is an element of christological reading-back here too. Nevertheless, the Moses narrative does contain some elements which may have contributed not only to the Servant Song but also to the account of the Passion. Moses tells the people that it is “because of you” (lemaanhem) that God had refused him entry to the promised land (Deut. 3:26, cf. 4:21), which perhaps suggests vicarious guilt37 if not necessarily vicarious atonement; he stresses the forty days and nights he spent without food or water in interceding for the Israelites (Deut. 9:18, cf. v. 25); but the account of Moses’s passing (Deut. 34) is narrated entirely without theological overtones. But even if the narratives concerning Moses are taken into account within the construction of the Passion narratives, we still lack a basis
35 Kermode, ibid. 36 von Rad 1968:227f., partially approved by North 1964:21, who also provides a detailed philological commentary (see esp. 238ff.) which acknowledges many of the complications while opting for a traditional translation. 37 But it is not a pure case. As the leader of the people, Moses bears some personal responsibility for their actions, even when they are contrary to his instructions.
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for the judicial process which forms so prominent a part of the gospel stories.
3. The Trial of Jesus and the Trial of Jeremiah
The trial of Jeremiah supplies that basis.38 It provides a model for an entire narrative segment of the Passion narrative, rather than a source of literary allusion for some individual elements, phrases, etc. This is the account of Jeremiah’s trial, according to the translation of the Revised Standard Version. I have divided it into segments, for ease of analysis.
A: (26:1) In the beginning of the reign of Jehoiakim the son of Josiah, king of Judah, this word came from the Lord, (2) “Thus says the Lord: Stand in the court of the Lord’s house, and speak to all the cities of Judah which come to worship in the house of the Lord all the words that I command you to speak to them; do not hold back a word. B: (3) It may be they will listen, and every one turn from his evil way, that I may repent of the evil which I intend to do to them because of their evil doings. C: (4) You shall say to them, ‘Thus says the Lord: “If you will not listen to me, to walk in my law which I have set before you, (5) and to heed the words of my servants the prophets whom I send to you urgently, though you have not heeded, (6) then I will make this house like Shiloh, and I will make this city a curse for all the nations
38 I have found no earlier version of this proposal in the literature on the trial of Jesus. Occasionally, however, some Christian commentaries on Jeremiah see in details of this story adumbrations of the passion. Thus Coffman and Coffman 1990:II:294, commenting on Jer. 26:7: “And the priests and the prophets and all the people heard Jeremiah speaking these words in the house of Jehovah”, observe: “that irresponsible and ckle Jerusalem mob, designated here as “all the people,” that is, the majority, started yelling for the death of the holy prophet. They were t ancestors indeed of the mob in that same city centuries afterwards who would cry, Crucify him! Crucify him!” On verses 12–15, they comment [at 297]: “like the blessed saviour himself, Jeremiah submitted to the powers of the government, but warned them of the consequences.” See also Blackwood 1977:194: “The role of all the people [v. 7] is ambiguous. Verse 8 shows them siding against Jeremiah, while verse 11 shows them neutral, verse 16 shows them supporting him, and verse 24 seems to indicate that they were against him. The situation may have been similar to Jesus’ experience on Palm Sunday and Good Friday, when large crowds shouted his praise and large crowds cried for his death.”
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of the earth.’ ” (7) The priests and the prophets and all the people heard Jeremiah speaking these words in the house of the Lord. D: (8) And when Jeremiah had nished speaking all that the Lord had commanded him to speak to all the people, then the priests and the prophets and all the people laid hold of him, saying, “You shall die! (9) Why have you prophesied in the name of the Lord, saying, ‘This house shall be like Shiloh, and this city shall be desolate, without inhabitant’?” E: And all the people gathered about Jeremiah in the house of the Lord. F: (10) When the princes of Judah heard these things, they came up from the king’s house to the house of the Lord and took their seat in the entry of the New Gate of the house of the Lord. G: (11) Then the priests and the prophets said to the princes and to all the people, “This man deserves the sentence of death, because he has prophesied against this city, as you have heard with your own ears.” H: (12) Then Jeremiah spoke to all the princes and all the people, say- ing, “The Lord sent me to prophesy against this house and this city all the words you have heard. (13) Now therefore amend your ways and your doings, and obey the voice of the Lord your God, and the Lord will repent of the evil which he has pronounced against you. (14) But as for me, behold, I am in your hands. Do with me as seems good and right to you. (15) Only know for certain that if you put me to death, you will bring innocent blood upon yourselves and upon this city and its inhabitants, for in truth the Lord sent me to you to speak all these words in your ears.” I: (16) Then the princes and all the people said to the priests and the prophets, “This man does not deserve the sentence of death, for he has spoken to us in the name of the Lord our God.” J: (17) And certain of the elders of the land arose and spoke to all the assembled people, saying, (18) “Micah of Moresheth prophesied in the days of Hezekiah king of Judah, and said to all the people of Judah: ‘Thus says the Lord of hosts, Zion shall be plowed as a eld; Jerusalem shall become a heap of ruins, and the mountain of the house a wooded height.’ (19) Did Hezekiah king of Judah and all Judah put him to death? Did he not fear the Lord and entreat the favor of the Lord, and did not the Lord repent of the evil which he had pronounced against them? But we are about to bring great evil upon ourselves.”
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K: (20) There was another man who prophesied in the name of the Lord, Uriah the son of Shemaiah from Kiriath-jearim. He proph- esied against this city and against this land in words like those of Jeremiah. (21) And when King Jehoiakim, with all his warriors and all the princes, heard his words, the king sought to put him to death; but when Uriah heard of it, he was afraid and ed and escaped to Egypt. (22) Then King Jehoiakim sent to Egypt certain men, Elnathan the son of Achbor and others with him, L: (23) and they fetched Uriah from Egypt and brought him to King Jehoiakim, who slew him with the sword and cast his dead body into the burial place of the common people. M: (24) But the hand of Ahikam the son of Shaphan was with Jeremiah so that he was not given over to the people to be put to death.
Most of the above segments nd signi cant re ections in the gospel accounts of the trial of Jesus.39 Thus:
A: Jeremiah, like Jesus, preaches in the court of the Temple;40 B: He does so following a divine mission, but with no guarantee of success;41 C: He prophesies the destruction of the temple;42
39 In response to oral presentations of this material, I have been asked on a number of occasions whether the parallels here suggested are supported by linguistic parallels between the New Testament and the LXX version of Jeremiah 26 (in the LXX, ch. 33)—a version which differs in some details from the MT (e.g. the establishment prophets in LXX are described as “false prophets”). That begs a number of important problems regarding the sources of knowledge of Jeremiah (oral or written, and if the latter in which language) which might have been available to the NT writers. However, my principal response, which also begs questions which cannot be addressed here, is that the parallel is one of narrative line, rather than linguistic expression. Moreover, I am inclined to assume that the early form of communication of the story of the trial of Jesus was oral, and thus not itself xed linguistically. Nevertheless, a linguistic parallel such as the accusers’ in Mark 15:64 and parallels (LXX Jer. 33:11) may well be regarded as thematic rather than linguistic. In short, my argument does not rest upon linguistic dependence upon the LXX (or any other text), though this does not exclude points of in uence in the nal literary formulation. 40 Cf. Matt. 21:28ff.; Mark 12; Luke 19:47ff. In Matthew, his rst actions there are acts of miraculous healing: Matt. 21:14. 41 The same verb, shama (to listen, obey), is used in relation to Jeremiah’s mission as in the prophet-like-Moses text in Deuteronomy. 42 Cf. Matt. 24:1–2; Mark 13:1–2; Luke 21:5–6.
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D: There is priestly involvement in arresting43 and charging44 the prophet alleged to be prophesying falsely; E: There is some form of hearing in the Temple itself (i.e. within priestly jurisdiction);45 F: The secular authority then convenes a court;46 G: The priests take the lead in framing the accusation before the secular authority;47 H: The accused prophet defends himself, reasserting the genuineness of his mission; I: The secular rulers tell the priests that they have decided to exoner- ate the prophet;48 J: A parallel is cited from the prophetic mission of Micah; K: Comparison is made with the fate of another accused;49 L: The latter suffers execution by the secular authority;50 M: Jeremiah escapes this fate, but stress is placed upon the potential role of the people as responsible for the life-or-death decision.51
Whether Jeremiah is presented as coming like a prophet-like-Moses is not clear; certainly, he comes to command obedience to God’s (existing) law, and obedience to God’s prophets, on pain of divine punishment, is explicitly enjoined (A–C). It is in D–I that the most striking parallels
43 Cf. Matt. 26:47; Mark 14:43; Luke 22:52. 44 Cf. Matt. 26:59ff.; Mark 14:55ff. 45 Cf. Matt. 26:57ff.; Mark 14:53ff.; Luke 22:54ff. 46 Cf. Matt. 27:11ff.; Mark 15:2ff.; Luke 23:1ff. 47 Cf. Matt. 27:12; Mark 15:3; Luke 23:2. Holladay 1990:31 notes that when the priests repeat Jeremiah’s offending words to the civil authorities, they omit his reference to the Temple and speak only of his prophesying against the city. “To the princes this would make the issue appear to be treason rather than a religious dispute.” 48 Cf. Matt. 27:23; Mark 15:13; Luke 23:4,14. 49 Cf. Matt. 27:15–18; Mark 15:6–15; Luke 23:18. 50 Cf. Matt. 27:32ff.; Mark 15:21ff.; Luke 23:26ff. (here, of course, Jesus, not the other accused). For the political background of the prophecy of Jeremiah and his life, see Nicholson 1975:1–10. He notes at 27 that the biblical record that Israel persistently rejected the preaching of the prophets, and that the suffering many of them had to endure [especially Jeremiah], as well as the execution of others, eventually gave rise to the legends of the martyrdom of many of the prophets [for example Isaiah]. It is this, he argues, that forms the background of Jesus’ saying “Oh Jerusalem, Jerusalem, the city that murders the prophets and stones the messengers sent to her!” (Matt. 23:37, Luke 13:34). See also Stone 1992:173 on Neh. 9:26 and rabbinic sources on the killing of prophets. 51 Cf. Matt. 27:20–23; Mark 15:12–15; Luke 23:18–26.
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occur. For we nd here, in the trial of Jeremiah, the same antithetical roles of priestly and secular authority as in the case of Jesus. Indeed, the story of Jeremiah suggests sources for what historians regard as two of the most perplexing features of the trial of Jesus, namely the dual procedure (E–F), and the privilegium paschale. Jeremiah’s fate, in escaping condemnation, is compared to that of another accused prophet, who was not so fortunate, just as the fate of Jesus comes to be compared with (indeed, bound up with) that of Barabbas. There is, of course, one difference between the trial of Jeremiah and that of Jesus. It is clear that the charge against Jeremiah was indeed false prophecy, that he claimed falsely to be speaking in the name of God. The explicit claims of the gospels are that the charge against Jesus was blasphemy. We have, however, seen that the gospels themselves do contain hints of a charge of false prophecy, and in narrative terms a charge of false prophecy makes a great deal of sense. Such a charge would give a far greater narrative coherence to the gospels as a whole: Jesus, who in his ministry was seen to exemplify the prophet-like-Moses (and who explicitly referred to the suspensory power in defending his authorisation of sabbath gleaning),52 is charged with having crossed that boundary with false prophecy to which the Deuteronomic text is so sensitive. But such a narrative would not, as Brandon (1971:124f.) has pointed out, be coherent with the fact of cruci xion.53 A possible explanation for the choice of “blasphemy” is offered below.54
52 See 22f., supra. 53 Some recent writings have sought to suggest a Jewish practice of cruci xion: see especially Betz 1988:5–8 (to which Professor Welch kindly drew my attention). Betz’s starting point, the suggestion that the Jews in John 19:15 suggested cruci xion as a Jewish penalty, appears unwarranted by the text: “They cried out, ‘Away with him, away with him, crucify him!’ ” But Pilate’s response: “Shall I crucify your King?” clearly implies his understanding that they were asking him to conduct the cruci xion. This is not incompatible with the claim that follows, that “Then he handed him over to them to be cruci ed.” They asked for an execution by Roman law; he agreed, but authorised them to carry it out themselves. There is nothing here to suggest that the Jews understood cruci xion as a Jewish form of capital punishment. Betz next refers to a passage in the Temple Scroll regarding hanging “on the wood”. In fact, the normal Hebrew word for tree is used in the passage (etz), and the passage (together with another apparent reference to cruci xion in the Nahum Commentary) has been extensively discussed by Baumgarten 1977:172–182 (answering the question in his title, “Does TLH in the Temple Scroll Refer to Cruci xion?”, in the negative). 54 See 50f., infra.
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4. History and Literature
I do not suggest that the whole New Testament account of the life and death of Jesus was a literary ction, invented from nothing other than re ection upon Hebrew Bible narratives. We do have some external sources, which may aid us in reconstructing an historical base-line. Notable is the statement of the Roman historian Tacitus, Annals 15.44,55 in describing the persecution of the Christians at Rome under Nero, that: Auctor nominis eius Christus Tiberio imperitante per procuratorem Pontium Pilatum supplicio adfectus erat (“Christus, the founder of the name, had undergone the death penalty in the reign of Tiberius, by sentence of the procurator Pontius Pilatus”). The Antiquities of Josephus (XVIII.63–64) contains a passage about Jesus, the so-called testimonium avianum, which at least attests the his- toricity of Jesus, even if its christological claims may be attributed to other hands.56 Then there is a remarkable passage in the Slavonic ver- sion of Josephus’ Jewish War57 which, though in some respects clearly in uenced by Christian accounts,58 provides a sophisticated political account of the respective motivations of the parties:59
55 Written in 110 A.D. There is recent archaeological evidence that Pilate, however, was only a prefect and not a procurator. See n. 22, supra. 56 See Winter 1973; Baras 1987:338f., noting that Origen (185–254) twice criticizes Josephus for not having accepted Jesus as the Messiah (Contra Celsum I.47; Commen- tary on Matt. 10:17), while later Eusebius (260–339), cites the Testimonium Flavianum as evidence that he did. See also Cohn 1971:308–312. 57 II.174. On the Eisler/Zeitlin debate (n. 77, infra), see Bowman 1987:372–73 and 382 n. 61. See also Cohn 1971:312–16. The suggestion that the passage goes back to an original text of Josephus is based in part on a statement by Josephus himself in the preface to the Greek version that he wrote a book on the capture of Jerusalem in his native tongue, and that this formed the genesis of the Greek version. 58 The passage begins with a discussion of whether the wonder-worker should be called a man (cf. the testimonium avianum) or an angel, in the light of his appearance and works (which were “divine”); notes his activity as a healer; concludes with an initial exoneration by Pilate; then suggests that Pilate was bribed by a gift of “thirty talents”, as a result of which he gave permission to the Jews to crucify him. 59 Thackeray translation, Appendix to Loeb edition of Josephus, War, IV.648–650. Compare John 11:47–48: “So the chief priests and the Pharisees gathered the council, and said, ‘What are we to do? For this man performs many signs. If we let him go on thus, every one will believe in him, and the Romans will come and destroy both our holy place and our nation’.” “Go on thus” can hardly have been a reference merely to preaching and healing; it must be to something which the Romans would have regarded as threatening. The Slavonic Josephus may, of course, represent an interpretation of this passage.
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And many of the multitude followed after him and hearkened to his teaching; and many souls were in commotion, thinking that thereby the Jewish tribes might free themselves from Roman hands . . . And there assembled unto him of ministers one hundred and fty, and a multitude of the people. Now . . . when they had made known to him their will, that he should enter the city and cut down the Roman troops and Pilate . . . he disdained us not [variant: but he heeded not]. And when thereafter knowledge of it came to the Jewish leaders, they assembled together with the high-priest and spake: “We are powerless and (too) weak to withstand the Romans. Seeing, moreover, that the bow is bent, we will go and com- municate to Pilate what we have heard, and we shall be clear of trouble, lest he hear (it) from others, and we be robbed of our substance and ourselves slaughtered and our children scattered.” And they went and communicated (it) to Pilate. And he sent and had many of the multitude slain. And he had that Wonder-Worker brought up, and after instituting an inquiry concerning him, he pronounced judgement. Jesus was incited by others to lead a rebellion, the priesthood heard of it, feared it would fail with dire consequences to both the people and themselves, and decided to denounce Jesus to Pilate before the insur- rection could begin, in order to avoid worse consequences. And nally there are the controversial Talmudic passages, some of which were censored since the Basle edition in the 16th century, not all of which may refer to Jesus,60 but of which at least one, that in Sanh. 43a, probably does.61
60 Sanh. 107b, placing Jesus in the time of King Jannai (104–78 B.C.); see Freedman 1935:II.736 n. 2, concluding: “And a Master said: Jesus the Nazarene practiced magic and led Israel astray.” See also Catchpole 1971:3. The passage also describes Jesus as a pupil of Joshua b. Perahyah (c. 100 B.C.E.). Encyclopedia Judaica ( Jerusalem: Keter, 1973), X.14–17 (this section translated from the Encyclopedia Hebraica) takes this to refer to the Jesus of the New Testament, but to re ect later rabbinic uncertainty about his dating. See also the “Ben Stada” passage in Sanh. 67b (an execution on the eve of the Passover, at Lod, for enticing to idolatry, on which see Cohn 1971:303–308); Shab. 116a–b, re ecting early Jewish anti-Christian polemic, though the object of derision is described merely as “a philosopher”. 61 See Schachter 1935:I.281: “It was taught: On the eve of the Passover Yeshu [Ms. M: the Nazarean] was hanged. For forty days before the execution took place, a herald went forth and cried, ‘he is going forth to be stoned because he has practiced sorcery and enticed Israel to apostacy. Anyone who can say anything in his favour, let him come forward and plead on his behalf.’ But since nothing was brought forward in his favour he was hanged on the eve of the Passover [variant: and the eve of Sab- bath]!—Ulla retorted: Do you suppose that he was one for whom a defense could be made? Was he not a Mesith [enticer: Deut. 13:9], concerning whom scripture says, Neither shalt thou spare neither shalt thou conceal him? With Yeshu however it was different, for he was connected with the government.” Catchpole 1971:6–9, argues for the historical authenticity of many of the details here, comparing “on the eve of Passover” with
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These sources, taken together and with what is common to the Gospel accounts, seem to me to establish the following:
1. There was an historical Jesus; 2. He had a considerable popular following amongst the Jews, who interpreted him in various theological ways, including the use of the “prophet-like-Moses” model; 3. He was in opposition to the Jewish establishment (especially the Temple priesthood) and was so perceived; 4. He was seen as a potential threat to stability by the Romans; 5. He was executed by the Romans.
But then, after Jesus’ death, the story had rst to be understood and then told. The details could not be super uous or arbitrary: that was not the mode of sacred texts. The details, including the two-stage trial, were taken from the Hebrew Bible. We cannot, of course, exclude the possibility that there was an inquiry, or trial, of some kind, but we have no reliable evidence of it. What we do have is evidence of how the events (whatever they were) were understood and communicated. It was in such a way as to stress their theological signi cance. The blasphemy charge, in particular, highlights the opportunities for combining historical and narrative accounts. On the one hand, the traditional Jewish (or at least biblical) understanding of blasphemy as an offense against both God and the king may well have been evoked, in its very bipolarity, by the combined offense which Jesus apparently gave to the high priesthood on the one hand, the Roman administration on the other. True enough, the purported dialogue in the Synoptics of the interviews with the high priesthood, in the context of which the blasphemy charge was pronounced, does not suggest “cursing” either
John 18:28; the mesith charge with John 18:19–24 (see also Wead 1969); the allegation of sorcery with Matt. 12.24, Luke 11.15, Mark 3.22; Contra Celsum II.9: “After this the Jew says: How could we regard him as God when in other matters, as people perceived, he did not manifest anything which he professed to do, and when we had convicted him, condemned him and decided that he should be punished, was caught hiding himself and escaping most disgracefully, and indeed was betrayed by those whom he called disciples?”; 1 Thess. 2:15: “for you suffered the same things from your own country- men as they did from the Jews, who killed both the Lord Jesus and the prophets” (on which see Gilliard 1989—to which Prof. J. Welch kindly drew my attention). Contra, Cohn 1971:298–303, noting various incongruities in the talmudic passage, including the con ict between hanging and stoning and ultimately concluding (307) that it prob- ably did not refer to the Jesus of the New Testament.
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God or the king, even if the parallel accusation of setting oneself up as a “King of the Jews” (what according to the Slavonic Josephus Jesus was certainly encouraged by some of his contemporaries to do) could be construed as a “cursing” of the secular authority. Yet even without importing into the narrative of the trial of Jesus the literal particulari- ties of the Hebrew Bible’s conception of blasphemy, it does seem that the choice of blasphemy may have been informed not just by historical events but by the connotations of the blasphemy offense, as indicated elsewhere in biblical literature. For there are three biblical narratives in which blasphemy is evoked, and it is possible to read connotations of all of them (with, perhaps, differing degree of conviction) into the choice made by the Synoptic writers at this particular point in the narrative. By far the most signi cant of the three, for present purposes, is the accusation made by Jezebel against Naboth (I Kings 21). Here, Naboth is entirely innocent; all he seeks to do is to preserve his “vineyard”, “the inheritance of my fathers”, against King Ahab’s intimidatory offer to buy it. The accusation of Naboth stands as a paradigm case of false accusa- tion, as is shown also by the manner and place of its citation in Sanh. 29a;62 it is pitched in terms directly evoking Exodus 22:28—“Naboth cursed God and the King”. Whether there is more to the parallel than this—as might be argued, perhaps, from the presence of the “vineyard” theme (cf. Isa. 5:1–7), we need not here investigate. Suf ce it to say that the theme of the Jewish establishment falsely accusing, and procuring63 the death of, a wholly innocent citizen, who sought only to preserve the inheritance of his fathers, is well established, and within that theme blasphemy was a charge actually used. And there may be more. In the Talmud, Naboth’s death is not the end of his story: he lives on in spirit form, and is able to participate in the ultimate divine judgment on Ahab, and indeed in other revelations and manifestations.64
62 In the warning to be given to witnesses according to talmudic procedure—found at the very head of the Gemara’s commentary on the Mishnah’s treatment of the examination of witnesses. See also Sanh. 48b, where the double accusation, of curs- ing God and the King, is explained as not legally necessary, but as having been made (in Naboth’s case) in order to “increase the anger of the judges”—again stressing the conspiratorial aspect of the false accusation. 63 Hinted at in Mark 14:55–56: “Now the chief priests and the whole council sought testimony against Jesus to put him to death; but they found none. For many bore false witness against him, and their witness did not agree.” Cf. Matt. 26:59–60. 64 See Ginzberg, 1909–38:VI:312 n. 41 for sources; see also Sanh. 89a, 102b, Shab- bat 149b.
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The same pattern of procuring witnesses to a false accusation is found in the trial of Stephen in Acts:65 Then some of those who belonged to the synagogue of the Freedmen (as it was called), and of the Cyrenians, and of the Alexandrians, and of those from Cili’cia and Asia, arose and disputed with Stephen. But they could not withstand the wisdom and the Spirit with which he spoke. Then they secretly instigated men, who said, “We have heard him speak blasphemous words against Moses and God.” And they stirred up the people and the elders and the scribes, and they came upon him and seized him and brought him before the council, and set up false witnesses who said, “This man never ceases to speak words against this holy place and the law; for we have heard him say that this Jesus of Nazareth will destroy this place, and will change the customs which Moses delivered to us.” A second narrative, that of the “blasphemer” in Leviticus 24, might also contribute to the connotations, though here I believe any liter- ary connection is remote, a matter more of connotations possibly to be read in by an audience than those sought to be conveyed by the authors themselves. During the wandering in the wilderness, a quarrel arose between “a man of Israel” and “an Israelite woman’s son, whose father was an Egyptian”. The two quarreled, perhaps fought, and the latter “blasphemed the Name, and cursed”. The issue is presented as an unclear one: “They put him in custody, until the will of the Lord should be declared to them”. Moses consults God, who pronounces a verdict of death by stoning, and requires Moses to enact such a law for the future. Why the matter required oracular decision is not made clear: the recital of the pedigree of the defendant may well be relevant. In wider narrative terms, however, the point of the story will be understood as signifying the particular role of direct divine decision in a charge of blasphemy, so that the choice of this charge by the Synoptic writers may be taken to add further critical point to the criticisms at the high priesthood for handing Jesus over to Pilate. There is also a third narrative relating to blasphemy. Describing the fright of the people in the wake of the activity by Tiglath-Pileser in
65 6:9–14. Schürer 1973:II.219 takes this as good historical evidence of the exercise of Sanhedrin jurisdiction over blasphemy. But we must take into account not only the literary relationships between the Old Testament and the New, but also those within the New Testament (a theme not here explored). In citing John 19:7 (as well as Matt. 26:65) in support of “the fact . . . that Jesus is said to have stood before the Sanhedrin on account of blasphemy”, they go beyond what is warranted by the text.
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disciplining Samaria and Damascus after the Syro-Ephraimitic War,66 Isaiah 8:21 paints a narrative image of a people, who “will pass through the land greatly distressed and hungry; and when they are hungry they will be enraged and will curse their king and their God, and turn their faces upward . . .”. The vision is evocative of the murmurings of the people against Moses during the period of the wilderness (perhaps an evocation also of the context of the blasphemer law of Leviticus 24), and it is clear that the “cursing” is vain, desperate, uninformed. This is not, as in the case of Naboth, a false accusation that someone blasphemed, but rather a prophecy that people will blaspheme for no reason. As in the case of the blasphemer in the desert, there is no prior reason for the offense; it arose in the heat of the moment, in the heat of the desert. Taken together, this literary corpus, when viewed in its syntagmatic relations within the Hebrew Bible, presents a kind of transformation: from a case where someone is truly accused of having factually blas- phemed, and justi ably suffers death, though at the hands of divine decision (Lev. 24); to a case of a knowingly false accusation of blasphemy, which results in death, brought about by the agencies of the secular authority and its judicial system (Naboth); to a fevered pronunciation of blasphemy, or the prophecy thereof, by people who know no better (Isaiah). Is it too far-fetched to see in the Gospel accounts a further element in this line, one in which, though the primary connotation is that of the Naboth story—the execution of an innocent upon a false charge of blasphemy—there is also a connotation now attached to the accusers themselves, one comparable to that of Isaiah’s prophecy regarding the actions of a people, oppressed and frightened by the prospect of outside intervention, who, in their own panic, blaspheme (from the viewpoint of the New Testament writers) by the very action which they take.
5. Moses, Jeremiah, Jesus: A Living Tradition
The relations between the three gures of Moses, Jeremiah, and Jesus may be summarized in terms of family resemblance. There is a set of characteristics: each gure partakes of a considerable number of
66 734, 732 B.C.; see Ridderbos 1985:5.
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them, though not of all. Thus, Moses performs miracles in proof of his authority, he is regarded as a prophet, he achieves the liberation of the Israelites from Egypt, he gives the law, he breaks the rst set of tablets and has to obtain another. Jeremiah is also a prophet, he is associated with the writing of divine revelation in the form of a book,67 his rst scroll is destroyed and has to be rewritten;68 he offers an authorita- tive reformulation of a law,69 he even offers a “New Covenant”,70 he preaches in the Temple against the very institution of the Temple71 and in language evocative of the authority of a prophet-like-Moses,72 and he is put on trial. Indeed, it has been suggested that Jeremiah may have consciously seen himself as the referent of the (then, perhaps, recently discovered) text of Deut. 18:15.73 Jesus performs miracles, he preaches in the Temple against at least some of the institutions of the Temple, he is seen by some as a liberation leader against the Romans, he proclaims authoritative new versions of the law, he suspends the law on particular occasions [in line with the rabbinic understanding of the authority of the prophet-like-Moses], he is accused in some accounts of false prophecy, he is put on trial. Many details could be added: the infant escape of both Moses and Jesus from genocidal decrees, the miraculous feeding of the people by both Moses (the procurement of the manna) and Jesus,74 the reluctance
67 “No earlier prophet [other than Moses] wrote down or dictated his material, as far as our evidence goes”: Holladay 1990:64. 68 Noted as a parallel with Moses by Holladay 1990:64. Should we view the cutting of his scroll as later transformed into the execution of the prophet himself ? 69 Jer. 34, supra, 15f. 70 Jer. 31, supra, 7f. 71 See Welch 1955:148ff. on the relationship between Jeremiah’s preaching regarding the Temple and the Josianic reform some years earlier. 72 Holladay 1990:17f. explicitly connects Jeremiah and the Deuteronomy 18 tradition, linking the phrases “whatever I command you you shall speak” [ Jer. 1:7] and “behold, I have put my words in your mouth” [1:9] with Deut. 18:18 [“I will put my words in his mouth, and he shall speak to them all that I command him”]. He suggests that no other call of a prophet in the Old Testament resembles this verse in Deuteronomy as closely. It attests to Jeremiah’s conviction that he is the prophet-like-Moses. From this task of being a prophet he shrank. But Moses, Holladay notes, had hesitated in accepting his own call [Exod. 4:1–17]. 73 Jacobson 1978:140, citing Jer. 15:16: “Thy words were found, and I did eat them; and thy words were unto me a joy and the rejoicing of my heart; Because Thy name was called on me, O Lord God of hosts.” Jacobson 1976:51 n. 5 cites earlier articles by Holladay (1962, 1964, 1966, all in JBL) on Jeremiah’s self-understanding as a prophet-like-Moses. 74 These rst two examples are both noted by Daube 1980:23f., in the course of a wide-ranging survey of typological connections, which stresses the rewriting of the earlier narrative in terms of the later. At 26f., he notes Josephus’ self-construction as
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of Jesus as compared to that of Moses, the opposition to both Jesus and Jeremiah from members of their own families,75 the walking on the water as compared with the parting of the Red Sea, the suffering of Jesus compared with the denial of access to the Promised Land to Moses. But we should have some methodological criterion of the signi cance of such parallels, some dividing line—as suggested above—between what might and what might not reasonably have been intended to be communicated to whom. On this basis, it is perhaps important to distinguish the main narrative line from, on the one hand, narrative details, and on the other, theological interpretations of those narrative details. The Synoptic Gospels, at least, are not predominantly writ- ten in theological or even sermonic language. They evoke, in their style, the narratives of Genesis rather than the prophets or wisdom literature. Yet undoubtedly, some audiences would have existed who would have “read” the narratives in terms of a more sophisticated theological interpretation, for whom, no doubt, vicarious suffering and vicarious atonement would be more important than the details of who did what. And even to those for whom a straight narrative line was the most important factor, there is no such thing as fact or history without implications. To even the simplest Christian audience of the narrative line, the story is being told of the Lord Jesus, the Messiah, the Christ. That he should have perished in circumstances of such shame and disgrace required, above all, explanation and justi cation. There could be no language of explanation and justi cation other than that of the religious tradition itself. Nor is that religious tradition silent on the cycle of identi cation here suggested. In Matthew 16:13–14, we nd an historical claim that Jesus was identi ed by some with Jeremiah: Now when Jesus came into the district of Caesarea Philippi, he asked his disciples, “Who do men say that the Son of man is?” And they said, “Some say John the Baptist, others say Elijah, and others Jeremiah or one of the prophets.”
a second Jeremiah, and his reconstruction of the story of the surrender to the Baby- lonians in terms of Josephus’ own relations to the Romans. 75 Hengel 1981:64, comparing Mark 3:21 and 6:1–6 with Jer. 12:6 and 11:21. See also Jacobson 1976:57.
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We have seen that Elijah was explicitly identi ed with the prophet-like- Moses tradition by the Rabbis.76 In Acts 7, we have an account of Stephen’s defence in his trial. In it, he provides an account of biblical history designed to show how it leads coherently to Christianity. His account of Moses selects from the law the prophecy of a future prophet-like-Moses (as well as stressing other narrative details where parallels could be drawn): This Moses whom they refused, saying, ‘Who made you a ruler and a judge?’ God sent as both ruler and deliverer by the hand of the angel that appeared to him in the bush. (36) He led them out, having performed wonders and signs in Egypt and at the Red Sea, and in the wilderness for forty years. (37) This is the Moses who said to the Israelites, ‘God will raise up for you a prophet from your brethren as he raised me up.’ (38) This is he who was in the congregation in the wilderness with the angel who spoke to him at Mount Sinai, and with our fathers; and he received living oracles to give to us. (39) Our fathers refused to obey him, but thrust him aside, and in their hearts they turned to Egypt, (40) say- ing to Aaron, ‘Make for us gods to go before us; as for this Moses who led us out from the land of Egypt, we do not know what has become of him.’ (41) And they made a calf in those days, and offered a sacri ce to the idol and rejoiced in the works of their hands. (42) But God turned and gave them over to worship the host of heaven, as it is written in the book of the prophets. Elsewhere, too, Acts stresses the parallel with the prophet-like-Moses tradition. Peter proclaims: (3:16) . . . and now, brethren, I know that you acted in ignorance, as did also your rulers. (17) but what God foretold by the mouth of all the prophets, that his Christ should suffer, he thus ful lled (18) . . . Moses said, “the Lord God will raise up for you a prophet from your brethern as he raised me up. You shall listen to him in whatever he tells you. And it shall be that every soul that does not listen to that prophet shall be destroyed from the people.” (23–24) . . . And all the prophets who have spoken, from Samuel and those who came afterwards, also proclaimed these days. What is noticeable about this version is not only the selection made from Deuteronomy 18, one which not only explicitly identi es Jesus with the prophet-like-Moses who will be sent in later days, but also the stress on his authority. That these two claims should be linked, with
76 Supra, 27f.
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this emphasis, lends great credence to the view that there was a real authority dispute regarding Jesus even during his lifetime. The Slavonic Josephus,77 too, provides an account of popular views regarding the status of Jesus: “Some said of him ‘our rst lawgiver is risen from the dead and hath performed many healings and arts,’ while others thought that he was sent from God . . .”
77 Considered by Eisler to derive at least indirectly from an aramaic original by Jose- phus—strongly contested by Zeitlin, who dates it to the 7th century. For the literature, see Schürer 1973:I.60–61. See further n. 57, supra.
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JACKSON_F5_58-87.indd 58 9/27/2007 7:49:51 PM CHAPTER FOUR
TESTES SINGULARES IN EARLY JEWISH LAW AND THE NEW TESTAMENT
The sectarian evidence law at CD 9:16–23 may be divided into four components:
A. A special evidentiary procedure whereby a capital case may be rendered “complete” (lines 16–20); B. A non-capital sanction to be imposed in a capital case on the evi- dence of two witnesses (lines 20–22); C. A statement of the suf ciency of two witnesses in a case concerning property (lines 22–3); D. The same non-capital sanction as in B to be imposed in a case concerning property on the evidence of one witness (line 23).
Recent discussion has concerned the interpretation of, and alleged par- allels to, A.1 But before we enter into any comparison, it is necessary to decide some doubtful points in the text de novo.
1. The Meaning of CD 9:16–23
l[my rça rbd lk A 16 wh[ydyw awh twm rbd a dja awhw wh[yr harw hrwtb çya 17 wtwç[ d[ wdyb whbtky rqbmhw rqbml jykwhb wyny[l 18 ynpl çptynw bwçy a rqbml [ydwhw bçw dja ynpl dw[ 19 wfpçm lç rja 20
Every case in which a man transgresses the Torah, and his neighbour sees it, and he is one: If it is a capital case, and he makes it known in his presence with reproof to the mevaker, and the mevaker writes it down in his hand until he does it again before one, and he repeats, and he makes it known to the mevaker, if he (does it) again and is caught in the presence of one, his case is complete.
1 Levine 1973; Neusner 1973.
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The principal problem affecting the legal signi cance of the passage is the question whether two or three separate offences are required before the case may be regarded as complete. Translators have differed on the matter.2 The main linguistic issue is whether weshav wehodiya lamevaker is to be construed as part of the clause commencing ad asoto. The inter- pretation of A as allowing single witnesses to only two separate capital offences depends upon such a construction, and also requires that ad be given an hypothetical rather than a temporal force: the rst witness informs and the mevaker records “in case he should do it again in the presence of one [witness] and he returns and informs the mevaker ”. There is no easy answer to the construction of A. Frequent change of subject and stylistic variation make a number of different views possible. But both linguistic considerations and the overall structure of the passage point to three, rather than two, attestations. The latter involves a major dif culty. To construe weshav . . . as part of the ad clause involves either an illogicality or a tautology. The mevaker records the offence in case “he” (the offender) should do it (asoto) again before one [witness], and (?) should return (weshav) and make it known (wehodiya) to the mevaker. If the subject of weshav is the second witness, as it is usually taken, he is not “returning”—unless we suppose that the text requires that the same single witness attest the separate offences, which is both inherently unlikely and dif cult to square with the hem of the following weim shenayim hem. If, on the other hand, it is the offender who is the subject of weshav (and he is, indeed, “returning” to his past offence), then the dependence of weshav on ad implies a tautology with asoto od. Further, we may note that the emphasis in the formulation weim shenayim hem wehem meiydim . . . at the beginning of B (line 20) is dif cult to explain if two witnesses have already been the subject of the preceding A. If the difference between A and B were that between two witnesses to separate but similar offences, and two witnesses to separate but dissimilar offences, the emphasis should be on davar a4er, not on the number two. These dif culties disappear if we take the text to require three separate attestations. The conjunction ad may bear its usual tempo- ral connotation, and the choice between illogicality and tautology is
2 See Neusner 1973:199–202. Though Vermes takes the meaning to be two in his more recent translation (there quoted), he earlier inclined to three. See Vermes 1954:175. So also did Schechter 1911, note 26 ad loc.; Segal 1911:135.
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avoided. The subject of weshav is the offender, and it is independent of the ad clause. The future contingency against which the rst offence is recorded is stated rst, then the actualization of that contingency. By yikhtevehu beyado ad it is conveyed that the mevaker “will write it down in his hand and keep it against the time that he may do it again in the presence of a single witness”. If the offender then repeats the offence, and he (the second witness, already introduced by the words lifne e4ad in the ad clause) reports it, and the offender repeats it [again] and is caught in the presence of [another] single witness, the case against him is then complete.3 The two dif culties which remain are the frequent changes of sub- ject, and the waw of weshav. Of these, the rst exists whichever way one reads the text. By taking the subject of weshav to be the offender, one does, indeed, require an abrupt change in the next word, wehodiya. But the alternative makes little sense, and itself requires a change of subject from asoto to weshav which the analysis here presented makes unnecessary. The second dif culty is also surmountable. While the sequence of imperfect tenses may, following Biblical practice, represent either protases or apodoses, the structure of the passage requires that they all be regarded as part of a continuing protasis. The alternative is to regard weyodiyehu, yikhtevhu, and weshav as (structurally) a continuing apodosis to the protasis im devar mawet hu, and to take im yashuv as the commencement of a new protasis, to which shalem mishpato forms the apodosis. On grammatical grounds this is not impossible, but nei- ther is it likely. The initial waw of weyodiyehu may, following Biblical drafting (e.g. Exod. 21:3,6), signify the commencement of the apodosis. But if so, its function differs from that of the rst waw following im yashuv (for it is impossible to take wenitpas as anything other than the
3 Shalem mishpato is enigmatic. While appropriate in circumstances in which a case is only gradually built up, it nevertheless has the ring of a euphemistic circumlocution for the death penalty. In the Community Rule the greatest sanction imposed is expul- sion. See esp. 8:21–4, of ish . . . asher yaavor davar mitorat mosheh beyad ramah ow birmiyah (probably based on Num. 15:30–31). But in CD the death penalty does appear to be envisaged. The one apparent case of its application, 9:1, is far from clear. But the implication from 10:1 seems plain: in general, the death penalty may be imposed (in accordance with Biblical law) as long as the witnesses are competent. Nevertheless, the Community Rule’s apparent aversion to capital punishment nds echoes in CD 12:3–6 and 15:3–5, where it is explicitly excluded for breach of the sabbath laws and oaths by the curses of the covenant. At 12:2–3 apostasy is made punishable by death, but this is expressed by incorporating the offence under Lev. 20:27!
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continuation of a protasis) as well as from those of all the other conjunc- tive waw’s in the passage. More important, it is impossible contextually to regard weshav as anything other than part of a protasis. From im devar through to wenitpas lifne e4ad we have a single continuing protasis, the components of which are linked sometimes by waw conjunctive, at other times by im. Series of clauses linked by waw into a single protasis are not unknown in Biblical law. The interjection here of an im into the sequence appears as just one manifestation of stylistic variation, in which the passage abounds.4 In short, the view that weshav has the offender as its subject and com- mences a clause independent of ad requires the waw to be understood as joining this clause to a preceding section or sections of a continuing protasis, from which emerges one long multi-clause protasis. But such a multi-clause protasis is in no way unacceptable. A different issue which arises from the procedural description given in A concerns the function of the “rebuke” and the need for its repetition. But though of considerable signi cance, this has only a slight bearing upon the comparative issues presently to be discussed.5 Also doubtful is the signi cance of wenitpas. Taken literally, it is more than a synonym for weraah (1.17) or lifne (1.19). It means, as Vermes translates, that the offender be “caught in the act”. But it is unlikely that the full literal strength of the expression was intended as a legal requirement. Once again, its function appears to be stylistic variation. We may note that
4 Weyodiyehu (1.17)/wehodiya (1.19); im devar mawet (1.17)/weal hahon (1.22); wehu- vdal . . . min hataharah (1.21)/lehavdil hataharah (1.23); weshav/yashuv (1.19). 5 Unless, that is, the absence of reproof on the second occasion (taking the text over-restrictively) is regarded as the reason for a third attestation. The sectarian reproof has been compared to the rabbinic hatraah, but it has more in common with (and may be the source of ) the rebuke in Matt. 18:15–17 and later Christian rules, such as those at S. Benedicti Regula, ch. xiii; Rules of Abraham of Kaškar, §12; Rules for the Monophysite Monks in Persia, §6 (the two latter in Vööbus 1960). Lev. 19:17, which is the basis of the sectarian reproof, is not taken to refer to hatra’ah in rabbinic sources. See v. Vliet 1958:54–59; Jackson 1972a:230 n. 7. I do not, however, exclude the pos- sibility that hatraah may have its origin in a shame-cultural punishment, such as was known to the sectarians and the early church. A different theory has been proposed by Falk 1972:I.119ff., who sees the warning given to an accused on conviction (cf. our “I shall be lenient this time, but I must tell you that should you appear before this court again . . . ”) as the origin of hatraah. But in at least one important respect, Falk’s evidence is open to doubt. He regards the hatraah of T. Sanh. 12:7 as the parallel tradition to the case of the persistent offender in M. Sanh. 9:5(a). But hatraah is there an interpretation of shelo beedim in M. Sanh. 9:5(b). The Tosefta reverses the order of the two mishnaic cases. On these texts, see further infra, 73–78.
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Josephus uses the equivalent Greek expression, , in a similarly loose fashion in a similar context.6 l[ ydy[m hw h ynç aw B 20 ynman a dbl hrhfh ˆm çyah ldbwhw rja rbd 21 rqbml h[ydwy çyah twar wybw h 22 But if they (the witnesses) are two, and they (each) testify to a different case, the man shall only be separated from the purity, provided they (the witnesses) are reliable, and that (each) made it known to the mevaker on the day he saw it. The reading davar a4er in line 21 is that of Rabin. Schechter, in the editio princeps, read davar e4ad. Such a reading would certainly not be unintelligible. It would mean that the lesser sanction of separation from the purity was to be applied where there were two witnesses to a capital offence, even though they testi ed to the same capital offence (i.e. were contestes). The implication would then be that the normal requirement in capital cases was one of three witnesses. Such a rule is found in some other pre-rabbinic sources. Josephus has Jezebel procure three witnesses against Naboth.7 In stating the law of evidence, he again inclines to three, but does not exclude two: “Put not trust in a single witness, but let there be three or at the least two8 ( ), whose evidence shall be accredited by their past lives”.9 The Testament of Abraham, in its longer recension, explicitly regards three as the minimum, and this has been taken to represent old halakhah.10 Paul, as we shall see, also interprets Deut. 19:15 in terms of three.
6 Bell. Jud. II, viii, 8, 143–4, concerning Essene criminal law. On the further sig- ni cance of this text for our problem, see infra, 76f. 7 Ant. 8.358. Ginzberg 1909–38:VI.312 takes this account to “presuppose the older halakah, according to which, in cases involving capital punishment, three witnesses (or to be more accurate, one accuser and two witnesses) are necessary”. Cf. Marcus in the Loeb Josephus, vol. V, p. 765; v. Vliet 1958:28. 8 Note the signi cant reversal of the Biblical order, showing again the natural emphasis on the rst numeral. Cf. the variant to HL 37, discussed in Jackson 1975:155f., and C. 4.21.20. 9 Ant. 4.219. This is a far stronger statement than that at Matt. 18:16, adduced by Rabin 1954:48. 10 A13. See v. Vliet 1958:49, 125 n. 312, 138 n. 494, quoting the translations of James and Box, and following Ginzberg (n. 7, supra), who refers to his own comments on the text at 1922:170 n. 5. At any rate, even if the author of the Testament of Abraham was a Jew (with Flusser, Enc. Jud. ii.129, against some earlier opinion), it is none too reliable a basis from which to draw conclusions as to the old halakhah.
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But though intelligible, e4ad does not appear to be what the scribe intended. Rabin reads a4er, as does Vermes in his translation, and the photographic edition clearly supports them. What, then, is the mean- ing? One might take davar a4er to mean “a different type of case”, the intention being to stress that where the evidence consists of single witnesses to separate offences (testes singulares), those separate offences must form part of a single class of actions. Such a requirement is not unreasonable. Scots and English law even today recognise circumstances is which corroboration may be provided by a single witness to a previous offence, as long as the acts concerned constitute a single “course of conduct”.11 Rabbinic law provides an analogy in the detailed application of the rules of muad, which require (sometimes ad absurdum) that the previous warnings given to the owner should have related to exactly the same type of offence.12 It would, indeed, be incredible to suppose that the CD draftsman contemplated the suf ciency of single witnesses to two different species of capital offence, so that, for example, the death penalty might be imposed where one witness testi ed to murder and a second to idolatry. But the requirement that there be some identity (its precise nature is not recoverable) between the several offences is expressed already in A itself—in the pronominal suf x of asoto. Moreover, if B is no more than a gloss on A, why the stress on “two” witnesses? “If the witnesses testify to offences of a different class . . .” is all that would be needed. Indeed, if our understanding of A as envisaging three witnesses is cor- rect, the introduction of “two” into B (B being taken as a gloss upon A) creates ambiguity. The situation where three witnesses testi ed to capital offences of different kinds would not be governed. Moreover, it is not easy to give the phrase davar a4er the meaning “offences of dif- ferent kinds”, both because of the number, and because davar in the legal context means “a suit”, “a case”,13 not “a type of case”. In fact, the only distinction between B and A is that indicated in the opening words of B, weim shenayim hem. Testes singulares are still contem- plated, and this is the meaning of davar a4er. Each witness testi es to a separate offence. But as there are only two, not three as in A, the case is not complete, and only an inferior sanction is imposed.
11 Infra, 97–110. 12 E.g. M. B.K. 4:2. 13 Jackson 1972a:241f., for texts and literature.
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If this is correct, neither A nor B tells us anything about the require- ment in the more common situation, where the witnesses are contestes. If it were possible to read e4ad, with Schechter, so that B did refer to contestes, we would know that three witnesses were generally required to impose the death penalty. As it is, we can only surmise. It is not impos- sible that the rule was two contestes but three testes singulares—based, no doubt, on an exegesis of Biblical law. But the exegetical problem seems to have been solved more simply, by distinguishing capital and property cases. On the whole, three contestes seems a better reconstruction.14 The idea underlying B is that a lesser sanction is imposed where less than the ideal quantum of proof is available. The meaning of separa- tion from the purity now falls to be considered. Internal evidence is insuf cient to establish its meaning, but we shall nd support in the Community Rule (DSD). wehuvdal min hataharah means literally “and he shall be separated from the purity”. The “separation” referred to may mean the decision to separate, rather than the physical separation which no doubt results. Wieder has observed that the verb in CD 5:6–7 has the technical sense “to give a halakhic decision in mat- ters of purity and impurity and holy and profane”, and suggests that this restrictive import derives from Lev. 10:10.15 However this may be, every occurrence of the verb in CD, apart from that in our passage, is plainly in the context of ritual cleanliness of one kind or another.16 The type of purity from which the offender is to be separated is not indicated by CD, which is not concerned to formulate rules governing taharah. But such rules are present in DSD. Sometimes, taharah appears to refer to a (psychic) state of ideal purity, as in DSD 4:5. More com- monly, it refers to one of the privileges of full members of the sect,17 being mentioned along with communal property rights and privileges of drink (mashkeh) in the contexts both of initiation (6:16–20,22) and relegation (7:19–20, 24–5). Vermes takes it to mean “pure Meal”, and
14 The possibility rejected in Mekhilta ad Exod. 23:7 has two testes singulares (infra, 69f.), but, against this, Paul’s adaptation has three (infra, 79–83). None of the European systems which allow combination of testes singulares require more than are required if the witnesses were contestes, though the number of witnesses is often regarded as affect- ing the weight of the evidence. 15 Wieder 1962:161f., citing also CD 6:17–18. His terminological connection with Anan’s Book of Precepts need not here concern us. 16 CD 5:7, 6:14 (from the apposition), 6:17, 7:3–4, 12:19. 17 It is not synonymous with full membership, as Segal appears to have thought. See Haberman 1959:194.
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Haberman has suggested Neh. 12:45 as a possible Biblical basis for this usage.18 On internal evidence alone, this appears to be the best view of the matter, and it derives some support from the rabbinic okhel 4ulin betaharah, adduced by Rabin.19 In DSD the full phrase “separation from the purity” occurs four times (6:25, 7:3, 16, 8:24), on each occasion as a sanction for an offence. From DSD 7:15–17 it is clear that such separation falls short of full expulsion from the community. DSD 6:25 adds that the offender weneenshu et reviyit la4mo. From all this, it appears that the likeliest meaning of the sanction in section B of our passage is reduction to the novitiate, involving exclusion from the communal meal, which was eaten in a state of ritual purity.20 ynç wlbqy ˆwhh l[w C 22 hrhfh lydbhl dja l[w D ynman yd[ 23
C But for property (cases) they shall accept two reliable witnesses D And (on the word of ) one (they may) separate from the purity. Out of context, these provisions would be clear enough: two witnesses (being contestes) are suf cient in property cases, but a single witness suf ces for separation. The different formulations in B and D may possibly sug- gest that the sanction is mandatory in B but only discretionary in D. But we are not told that the witnesses are contestes, and in the con- text of A and B the natural implication is that testes singulares are still in contemplation. Indeed, one might argue that if such a procedure were admissible even in capital offences, one should certainly expect it in property offences. Moreover, if the interpretation of A and B here proposed is correct, the formulation in respect of capital cases contains no statement at all of the basic rule of suf ciency. We are told only that three testes singulares render the case complete, but where there are only two, the sanction is temporary exclusion from the pure meal. Legal drafting encompassing subsidiary to the exclusion of basic rules (which are so well known that they need no statement) is not uncommon in the early history of Jewish law, or, indeed, in other legal systems. The formulation of A and B is not, therefore, surprising, and we are entitled to conclude that C was intended as the equivalent of A, rather than as the statement of a self-understood basic rule. It is
18 Loc. cit. 19 Rabin 1954:96 (Addenda), citing B.M. 87a; idem, 1957:8. 20 Cf. Rabin 1957:7f.
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beyond dispute that D is the equivalent of B. Just as the effect of less than suf cient evidence in capital cases is removal from the taharah, so does that same sanction apply where less than suf cient evidence is available in a property case. The numerical sequence in A/B is X, X–1, and that is the sequence also in C/D. Thus, for all the succinctness of C and D, they follow the same pattern as A and B. The differences between A/B and C/D are two. The former is more fully expressed than the latter. But that is not surprising. Repetition in C/D of what may readily be understood from A/B—though not unknown in ancient legal texts—would be super uous. More important is the apparent difference in the required number of witnesses, three in capital, two in property cases. But there is a ready explanation for such a discrepancy. CD 9:16–23 is based upon an exegesis of the phrase “two or three witnesses” in Deut. 17:6 and 19:15.21 Indeed, we shall see that Paul, in adapting the unusual procedure of our text to his purpose, emphasises his third visitation, and cites Deut. 19:15 as his proof-text.22 “Two or three witnesses” presented commentators with two thorny problems, as it was bound to do. It was not open to the Rabbis to take the view that the formula represents a particular manifestation of a general developmental tendency in the history of legal drafting.23 To them, the text contained at least two super uities: the inclusion of “or three” when a mere “two” would perfectly adequately have served to convey the meaning “two or more”; and the unnecessary repetition of the passage in two chapters of Deuteronomy (to say nothing of Num. 35:30). Nor was the problem only exegetical. Rabbinic law, as every legal system which has adopted the Biblical requirement of corrobora- tion, had to decide how to avoid the practical dif culties inherent in its literal application. The rabbinic answer to this second, practical problem will be seen presently. The details of the solution to the exegetical problem need not here concern us.24 Suf ce it to say that rabbinic exegesis consistently adhered to the view that two witnesses were suf cient in both capital
21 Cf., already, Segal 1911:135f. (hesitatingly); Rabin 1954:48; Carmignac et al. 1963:189 n. 21. 22 2 Cor. 13:1–4, discussed infra, 79–83. 23 Jackson 1975:153–71. 24 See, e.g., M. Makk. 1:7, Sifre ad loc.
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and non-capital cases.25 But that was clearly not the only possible exegesis. CD represents another. Three was the minimum for capital, two for property offences. It is possible that another feature of the passage may also have been arrived at by exegetical means. In B we are told that separation from the pure meal is the sanction where only two witnesses attest a capital matter. We are not told whether that sanction is applicable where a single witness attests a capital matter. The emphasis in weim shenayim hem suggests that it was not, and the requirement that each witness report on the very day he witnessed the offence is an otherwise super uous safeguard against abuse. But separation from the pure meal was avail- able where only a single witness testi ed to a property charge. Why the apparent difference? The reason may possibly lie in the fact that of the three Biblical texts which explicitly exclude the testimony of a single witness two are formulated with only capital cases in mind (Num. 35:30; Deut. 17:6).26 I do not, of course, insist on this last point. It could just as easily be argued that because two of the three Biblical texts deal with capital cases alone, the third, Deut. 19:15, is to be interpreted in the light of the other two, so that corroboration itself was required only in capital cases. The terminology of Deut. 19:15 is not such as to cover property offences of necessity. But on the major issue, that of the derivation of A from the Biblical “three”, there is support from 2 Cor. 13:1. Moreover, the biblicizing language of CD 9:16–23 (as of much of the document) is easily apparent.27
25 Pace Rabin 1957:111. The meaning of bifne sheloshah in M. Sanh. 8:4 appears to be that the stubborn and rebellious son is to be warned (and, as elsewhere, is expected to state his de ance of the warning) in the presence of three judges (cf. Goldin 1952:173; Albeck 1959:iv.197. See also Danby’s translation) who thereupon impose agellation. This represents the rabbinic interpretation of the Biblical weyisru oto (Deut. 21:18), as may be seen from other sources quoted by Epstein 1949:377. The rabbis thus restricted the parental powers of correction. Flagellation could only be imposed by a court of three: M. Sanh. 1:2. Rabin’s view is justi ed only in the sense that the offence punished by agellation is established by the son’s de ance of the warning, given in the face of the court. The three judges witness this special hatra’ah. This may account for the use of bifne sheloshah, instead of the more usual bisheloshah. M. Sanh. 3:2, also cited by Rabin, is a case where a litigant offers to accept the evi- dence of three herdsmen—three because herdsmen are, in some sources, regarded as incompetent witnesses. The text is no evidence of a general rule requiring three witnesses, or even admitting three herdsmen. 26 Cf. Rabin 1954:48. 27 Yimal is too common a verb to require detailed citation. But, for the property context, see Lev. 5:21. The construction weraah reyehu wehu e4ad may be loosely based
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We may conclude our analysis of the sectarian evidence law by paraphrasing it in terms more familiar to European lawyers:
A. Where three testes singulares successively depose to different commis- sions of the same capital offence by the accused, each deposition being recorded in the personal handwriting of the magistrate [on the day of the alleged offence, B], the accused may be convicted [of that capital offence]. B. But if there are only two credible testes singulares, all the other requirements of A being ful lled, the accused may be reduced to the novitiate. C. Two credible testes singulares may suf ce to prove a property offence. D. But a single witness to a property offence may suf ce to reduce the accused to the novitiate.
The mainstream of Jewish law took a very different line, rejecting testes singulares and preferring a more crude solution to the practical dif culties inherent in the corroboration rule.
2. A Rabbinic Rejection of Testes Singulares
The relevance to our problem of one rabbinic text, overlooked in the recent discussion, has been noted by Derrett.28 Mekhilta ad Exodus 23:7 reads:29 Suppose one witness testi es that a certain person worships the sun and another witness testi es that he worships the moon. I might understand that these two witnesses might be joined together and that person be declared guilty. But it says (Exodus 23:7): “And the innocent and righteous slay thou not”. Idolatry is a capital offence. The nature of the allegations presupposes that the alleged offences were committed on separate occasions. But
on Lev. 5:1 weshamah kol alah wehu eyd. On davar see Jackson 1972a:241f., and texts and literature there cited; on neemanim see Rabin 1954:48; Neh. 12:45 has already been cited as a possible source of taharah in its present meaning. Rabin, loc. cit., remarks that shalem mishpato is a biblicizing adaptation of MH nigmar diyno. Could it be that CD’s avoidance of the latter is because of its origin in Babylonian legal terminology? 28 Derrett 1970:161. 29 Lauterbach’s translation, at iii. 169–70. Cf. Maimonides, Hilkhot Sanhedrin 20:1.
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though they involve instances of the same capital offence, the testimony cannot be combined.30 We are not told what the law would be if wit- ness X testi ed that the accused worshipped the sun on Tuesday, and witness Y that he worshipped the sun on Friday, but there is nothing in the sources to suggest that this greater similarity would make any legal difference. The fact that the proposition that the testimony might be combined was put, and put in the shomea ani form, might be taken to indicate that a once-held view is here adduced for repeal. It might, indeed, be thought that the evidence of CD (A) and that of shomea ani should be combined to show a Second Commonwealth practice. But tempting as this may seem, it involves substantial methodological dif culties, and the safest course is to leave the matter unresolved.
3. Some Rabbinic Quasi-Parallels
Neusner has rightly cast a critical eye at the parallels to A suggested by Ginzberg.31 Rather, he approves Levine’s suggested analogy of the warning required to make an animal muad.32 The rabbinic warning to curb one’s animal’s vicious propensities is applied in CD to the accused’s own evil impulse. But this parallel, too, requires closer inspection. Rabbinic law itself came to apply the principle of muad to man’s own wrongful acts. But in so doing, it incorporated a radical alteration in the conception of muad, one which allowed (indeed, required) the warning to be deemed to have taken place. The principle adam muad leolam (M. B.K. 2:6) is a legal ction made necessary by the need to place direct damage committed by man within a single conceptual framework of tort law. Where, on the other hand, actual warnings remained necessary, rabbinic law required that they be given in court on the basis of the testimony of two witnesses.33 Indeed, Falk goes so far as to say that such a warn- ing “means a previous conviction”,34 and such a previous conviction had
30 Similarly, in Mekhilta deRabbi Shimon ad Exod. 23:7, where there is a refusal to combine the evidence of one witness who testi es to a breach of the Sabbath by gathering gs with one who testi es to gathering grapes. 31 1973:202–04. On the uniqueness of A, cf. Segal 1911:136. 32 Levine 1973:196; Neusner 1973:204. 33 T. B.K. 2:2, B.K. 24a. 34 Falk 1972:I.120.
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to be based on suf cient evidence. Of course, it may well be that this rabbinic interpretation does not represent the original signi cance of wehuad bivalaw (Exod. 21:29), and that at one point in the Biblical development an informal warning to the owner suf ced.35 Nor is it likely that the rabbinic requirement of three warnings before conviction as muad 36 (not merely two, as in CD) represents the original rule. Such considerations take us well beyond the problem of rabbinic parallels. But they do point to the possibility that CD took a Biblical institution as the model from which to construct a solution to the practical problems of the corroboration rule.37 As far as rabbinic parallels to C are concerned, two relaxations of the normal rules of evidence deserve consideration. The same R. Na4man who was prepared to accept disjoined testimony in property cases38 is recorded elsewhere as having gone out of his way to penalize a persistent property offender.39 Here, too, there is no evidence that R. Na4man was dealing with an offender of bad repute but with no previous, duly attested convictions. But one has one’s suspicions. We know all too well from the contemporary situation that the professional criminal is the most dif cult to convict. Mishnaic law does take account of the problem of the repeatedly convicted persistent offender.40 The fact that R. Na4man chose an indirect manner of proceeding indicates the unavailability of that mishnaic process. But whether this was the result of the offender’s previously clean record cannot be known. It is not the only possibility. R. Na4man’s attitude to the persistent offender thus constitutes, at best, a possible rabbinic parallel to CD’s special procedure. And it is to be noted that the institutions differ in that the sequence of offences in CD results, at the most, in the in iction of the maximum legal punishment, whereas the purpose of R. Na4man appears to have been to exceed the recognised maximum. More signi cant is a relaxation of the law of evidence where a debt is in dispute. Suppose a creditor produces two witnesses of whom the rst testi es that the debt was 200 zuz, the second 100. Does the evidence
35 On Exod. 21:29, 36; LE 54, and LH 251, see Jackson 1975:146f. 36 M. B.K. 2:4, B.K. 24a, Mekhilta ad Exod. 21:29. See also S. Albeck 1965:132f. 37 For another example of CD’s closer relation to Biblical than to rabbinic law, see Jackson 1972a:221, on CD 9:10–12. 38 Makk. 6b; Neusner 1973:203. 39 B.K. 96b; Jackson 1972:202. 40 M. Sanh. 9:5(a), on which see infra, 73.
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exhibit complete diversitas, or are the witnesses to be taken as in agree- ment to the extent of 100? According to R. Shimon b. Eleazer, the Shammaites took the former view, the Hillelites the latter.41 This is but one of a collection of legal problems which re ect the philosophical question whether the greater is distinct from or includes the lesser. There is also a rabbinic quasi-parallel to D. Mishnah Baba Metsia 1:1–2 requires that disputed property be divided in some cases where there is no evidence on which to decide between two claimants, and the Babylonian Talmud has a maxim “money which is in doubt, is to be divided”.42 Yaron has observed that this is one possible principle underlying LE 53 and Exod. 21:35 (upon which the rabbinic shor tam was based).43 But as far as rabbinic law is concerned these cases are distinguishable. The liability of the owner of shor tam was limited, so that in many cases the loss would be divided between owner and victim. But this did not apply in the absence of witnesses to the incident, and if witnesses were available, the owner’s liability was still limited, as long as the animal was tam. The property disputes in which division was possible were ones in which there was no allegation of an offence. Where an offence was alleged, it had to be proved by two witnesses; if they were lacking, or if there was only one, that offence was not proved,44 and no sanction was available against the accused. In some offences, the charge might itself lead to an oath of denial (e.g. M. Shebu. 5:2), but it seems to have been open to the accused to refuse such an oath, and in any event the outcome was either full conviction or full acquittal. This all-or-nothing approach was consistently applied in property offences, so that there is no real rabbinic parallel to D.45 Nevertheless, shor tam, rabbinic property disputes, and D do have one common feature. They are all exceptions to some application of the “all-or-nothing” approach which characterizes the growth of integra- tion within legal systems. Thus, modern tort laws tend to the view
41 Sanh. 31a, B.K. 41b, developing a set of traditions concerning Nazirites. See Neusner 1971:ii.217–8, 223. 42 B.K. 35b, B.M. 2b. Applications of the principle survived in canon law. See the early thirteenth century Summa de ordine iudiciario of Magister Damasus, LXIII. 43 Yaron 1966:398, repr. in Cohn 1971a:52. 44 M. B.K. 7:2–4; Jackson, 1972:194–5, 228–30. 45 The suf ciency of a single witness was, however, recognised in certain situations concerning personal status. See Hull. 10b, Bekh. 41a, Ker. 12a; v. Vliet 1958:61. But here the single witness was fully suf cient for the purposes for which the evidence was required. There was no partial consequence.
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that a tortfeasor is either liable to compensate in full or not liable to compensate at all. On principle, there is no distinction in the measure of damages dependent upon whether liability is based upon “strict” or “negligence” principles. In rabbinic law, on the other hand, the limitation of the owner’s liability for the damage committed by his shor tam corresponds to the fact that such liability is (despite some modern talmudic commentators) “strict”; where his liability is based on negligence, as in muad, full damages are payable. So too, modern law deals with property disputes on an “all-or-nothing” basis. Ownership is either proved, or it is not proved. If the latter, the claimant will get nothing. Rabbinic law, on the other hand, recognises some situations in which the dif culties of proof are so great that a division is more equitable than the total denial of a remedy. Again, modern law accepts in theory only two possible outcomes to a criminal trial: the accused is found either guilty or innocent. It is not open to the court to nd him “partially proven guilty” and therefore subject to a partial sanction.46 CD, on the other hand, does here recognise a partial sanction conse- quent upon partial proof.
4. A Real Rabbinic Parallel to B
Although rabbinic law contains no trace of partial sanctions consequent upon partial proof in a property offence, there is a clear application of such a principle in the law of murder. The parallel to B occurs in Mishnah Sanhedrin 9:5(b):47 A wsrkç d[ ˆyrw[ç wtwa ˆylykamw hpkl wtwa ysynkm ˆyd tyb hnçw hqlç ym t[qbtm B ymw rx jl twa ˆylykamw hpkl wtwa ˆysynkm yd[b alç çpn grwhh jl
(a) (As for) one who was scourged and then was scourged again, the court takes him to a prison-cell and feeds him with barley until his stomach bursts.
46 Even in Scotland, where the requirement of corroboration has made a third alternative desirable, the possible consequences of the “not proven” verdict lie entirely outside the criminal law. 47 Cf. Jackson 1972a:229 n. 9. Rabin 1954:48 adduced the text as a parallel, but mistakenly cited it as M. Sanh. 10:5. He also regarded it as referring (only) to the absence of the “ritual” requirements of evidence. But see infra 74–76.
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(b) (As for) the slayer of a man without witnesses, they [the court] take him to a prison-cell and feed him with ‘the bread of adversity and the water of af iction’. What, precisely, are the circumstances, and what the sanction in M. Sanh. 9:5(b)? le4em tsar umayim la4ats, a quotation of Isaiah 30:20, occurs only in this passage and that of the Tosefta which attempts to interpret it. The rabbis were plainly puzzled. In the absence of further indication, they refused to conclude that the two differently expressed sanctions had two different meanings, and con ated le4em tsar umayim la4ats with the clearer formulation of the preceding part of the mishnah. The question of the relationship between the two sanctions was posed in the Gemara ad loc., and the answer given by R. Shesheth: R. Shesheth answered: In both cases he is fed with ‘bread of adversity and water of af iction’ for his intestines to shrink, and then he is fed with barley bread until his stomach bursts.48 Together with this reinterpretation of the sanction of M. Sanh. 9:5(b), and, one may reasonably guess, as a result of it, the words shelo beedim in the protasis were also given a non-literal meaning. For if, despite evidentiary insuf ciency, a non-traditional capital sanction was to be imposed, the degree of evidentiary insuf ciency must be as small as possible. The rabbis hesitated to apply their view of the sanction in (b) to the situation where the murder really was committed “without witnesses”, as this would plainly contravene Num. 35:30, Deut. 17:6 and 19:15. The view was therefore adopted that two witnesses were present, but that there was a formal49 defect in their testimony. The Gemara (Sanh. 81b) opens its commentary on our Mishnah by attack- ing this very point: How do we know [that he committed murder]? Rab said: On disjoined evidence. Samuel said: Without a warning. R. bisda said in the name of R. Abimi: By [the testimony] of witnesses who were disproved in the bediy3ot but not in the 4akyrot.50 In the Tosefta (Sanh. 12:7–8) Abba Shaul, at least, does not expressly con ate the sanctions, but the interpretation of shelo beedim is a rather extreme version of the view attributed to Samuel in the Gemara:
48 Sanh. 81b. Cf. Maimonides, Hilkhot Rotsea4 4:8. 49 Rabin’s “ritual” defect, supra n. 47. 50 On these, see Jackson 1972a:231.
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If a man about to commit a crime be warned and he keep silent, or if, when he is warned, he shake his head,51 they are to warn him a rst time and a second time, and the third time to take him to prison. Abba Shaul says: he is warned a third time; and on the fourth is taken to prison and fed with bread of anguish and water of affliction. In the same way, they who have been found guilty and condemned to scourging, and have repeated the offence and been scourged a second time, on the third occa- sion they are to be taken to prison. Abba Shaul says: They are scourged a third time, and on the fourth occasion they are taken to prison and fed with barley till their belly bursts.52 Jewish interpretation has continued along this early-established path.53 Indeed, in this century David Hoffmann wrote:54 Die zwei Sätze unserer Mischna scheinen demnach zwei Versionen ein und derselben Gesetzesbestimmung zu sein, wonach mancher Verbrecher, der die Todesstrafe verdient, aber doch nach der Vorschrift des Gesetzes nicht hingerichtet werden kann, eine Kerkerstrafe erleidet, die seinen frühen Tod herbeiführt. Was in der einen Version fehlt, das ndet sich in der andern. But the historian will take a different view. Two sanctions are not stated differently in the same Mishnah if they bear the same meaning. Shelo beedim means simply “without [the presence of ] witnesses”. Even if one stretched it to include the circumstances envisaged by the Tosefta and the Amoraim, the literal meaning would not thereby be excluded. Moreover, it is only by reference to two different principles that the offenders in both (a) and (b) may be said (with Hoffmann) to deserve the death penalty. In (a) the offender has (presumably on suf cient evidence) received the legally appropriate punishment for each of his several offences. He “deserves” the death penalty only on the basis of the public safety. Jewish law provides the judges with no general discretion to increase a punishment because of the offender’s previous record. Hence, the present extraordinary measure. In (b), on the other hand, the offender may be said to “deserve” the death penalty in an entirely different sense. His offence is one for which the law does provide a capital sanction. But, because of the insuf ciency of the evidence,
51 I.e. he fails to make the necessary verbal reply, indicating acceptance of the warning and the consequences of ignoring it. 52 Translation of Danby 1919:119. 53 See, e.g., Maimonides, ad loc. 54 1924:187 n. 48.
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that sanction cannot be imposed. Indeed, there is here no sanction which may be imposed under the general law, since the accused has been convicted of no offence. A compromise is therefore made between justice to the accused, and public safety. Of course, rabbinic interpreta- tion is right in requiring that even this lesser punishment is not to be imposed arbitrarily, on imsy evidence. But we are not to suppose that it could be imposed only where the defect in the evidence was purely formal. There is no reason whatsoever to deny that the evidence of testes singulares, or, indeed, a single witness falls within the intention of M. Sanh. 9:5(b). Indeed, the Palestinian Talmud’s mishnah reads hahoreg et hanefashot (b, nefesh) shelo beedim,55 “the killer of people (pl.) without witnesses”, which may include the case where there is only one witness to each of a series of homicides.56 In substance, therefore, M. Sanh. 9:5(b) is a close parallel to section B of our CD text. In both, a non-capital saction is imposed in a capi- tal matter where there is a real de ciency of evidence. In CD three witnesses are required to impose the death penalty, but two suf ce for separation from the pure meal. In mishnaic law, two are required for the death penalty, but one suf ces for imprisonment and le4em tsar umayim la4ats. Beyond this, it would be unsafe to go. But it is interesting to examine further the similarity of the two sanctions. Separation from the taharah meant, as we have seen, exclusion from the communal meal, eaten in a state of ritual purity. We are not told whether this involved a reduc- tion in rations, as well as exclusion from the table of full fellows. Such evidence as there is suggests that it did not. In DSD the sanction occurs four times, and in one deprivation of a quarter of the offender’s rations (la4mo) is explicitly added (6:25). This may imply that ordinarily no such deprivation was involved. In Josephus’ account of Essene law exclusion did have dire implications for survival, but Josephus is referring to full expulsion on suf cient evidence:57 Those who are convicted of serious crimes they expel from the order; and the ejected individual often comes to a most miserable end. For,
55 Schachter 1959:267, and see Lieberman 1970–71:10–13. 56 It may be noted that in European discussions of testes singulares from the twelfth century (for which see infra, 95–97) homicide was the classical example of a factum non iterable, for proof of which testes singulares were not to be conjoined. 57 Bell. Jud. II, viii, 8, 143–44 (Thackeray’s translation). In the very next passage Josephus stresses the justice and care with which Essene trials were conducted.
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being bound by their oaths and usages, he is not at liberty to partake of other men’s food, and so falls to eating grass and wastes away and dies of starvation. This has led them in compassion to receive many back in the last stage of exhaustion, deeming that torments which have brought them to the verge of death are a suf cient penalty for their misdoings. M. Sanh. 9:5(b) thus shares with CD the principle that a lesser sanction may be imposed where the evidence is less than suf cient. It shares with Essene law, as related by Josephus, the punishment of bringing the offender near to death by, in effect, depriving him of normal rations. It differs from Essene law in the circumstances in which such a sanction may be imposed. The extent of the difference between the sanctions in CD and the Mishnah is dif cult to gauge. Separation from the pure meal was probably temporary. We have no indication as to the dura- tion of the Mishnaic imprisonment. Separation appears not to have involved a reduction of rations to the bare minimum for survival. But the concept of a table-fellowship was not restricted to the Qumranians. It existed also among the Pharisees.58 It is possible to view the Mishnaic punishment in terms of separation from such a table-fellowhip. But it is not necessary to do so. We have here a combination of factors which might be regarded as justifying a Second Commonwealth dating of the mishnaic rule. M. Sanh. 9:5(b) stands in con ict with its immediate post-mishnaic interpretation. It has elements in common with both Qumranian and Essene law, and perhaps with an institution of Pharisaism. It repre- sents a compromise between the requirements of Biblical law and the practical maintenance of law and order—a compromise, one might think, referable to an independent polity. But practical considerations were not the monopoly of the Second Commonwealth. The Tannaim were also exercised by them, if in a different direction, and a measure such as M. Sanh. 9:5(b) is explicable in the circumstances of their time. The Rabbis were concerned to correct Jewish offenders within the community, rather than hand them over to the Romans. In order to do so, they were bound to follow a policy of moderation—one which would leave all the parties to any dispute moderately satis ed, or at least not suf ciently dissatis ed to resort to the alien power. This, in my view, explains the lengths to which they went to avoid imposition
58 Rabin 1957:12ff.; Neusner 1971:iii.305–6. See esp. T. Dem. 2:2. Cf. Josephus, Bell. Jud. II. 139, of the Essenes.
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of the death penalty (as well as other anomalies of tannaitic criminal law) far better than supposedly rigid jurisdictional powers.59 Where murder could be attested by a single witness, the family of the victim had a powerful claim to see its desire for vengeance satis ed. If the Rabbis did nothing, there would be a great temptation to resort to the Romans (who had not, yet, fully accepted the rule unus testis nullus testis).60 A measure such as M. Sanh. 9:5(b), whereby a non-capital, but in some circumstances potentially capital, punishment was applied, may well have been designed to meet such a situation. The rabbinic evidence provides support for the view that M. Sanh. 9:5(b) represents a live tannaitic institution. Its inclusion in the Mishnah is (despite some contemporary views) prima facie evidence of that. But support comes from the distribution and literary features of the alternative solution in this case. Where an offence could be attested by a single witness, the punishment came to be regarded as left to Heaven. The sources have been examined by Neusner. With two appar- ent exceptions, Mekhilta ad Exod. 23:7 and Tosefta Sanh. 8:3, they come from sources clearly later than our Mishnah. But the Mekhilta narrative of Judah Ben Tabbai is regarded by Neusner as dependent upon an earlier version, also found in the Mekhilta, and in that earlier version the insuf ciency of a single witness is not the issue, nor is a heavenly punishment mentioned.61 Tosefta Sanh. 8:3 relates the same story of Shi- mon Ben Sheta4. The insuf ciency of a single witness is here plainly the issue, and heavenly punishment is said to have been imposed. On literary grounds this version is regarded by Neusner as dependent upon Mekhilta.62 On grounds of substance, too, it appears to be later than M. Sanh. 9:5(b). It constitutes the converse to the interpretation of M. Sanh. 9:5(b) which we have already examined.63 Tosefta Sanh. 12:7 and the Gemara interpret shelo beedim as referring only to a formal defect in the evidence. By implication, the sanction of M. Sanh. 9:5(b) was not regarded as applicable where there was a single witness. Tosefta Sanh. 8:3 tells us what result was envisaged in such a case. It was punishment at the hands of heaven.
59 On jurisdiction over property offences, see Jackson 1972a:251–60; on capital jurisdiction, Daube 1957a:110; Schürer 1973:i.526. 60 C. 4.20.9. 61 1973:205–07. 62 Ibid., 210–12. 63 Supra, 74f.
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There is one independent tradition which applies heavenly punish- ment to murder shelo beedim. Both Onkelos and PT go out of their way to add it to their translations of Gen. 9:5–6. The translators were faced with a Biblical text which rst stated that “I” (God) will seek vengeance from beast or man for the life of man, and then went on to add shofekh dam haadam baadam damo yishafekh. They understood baadam to mean “by man”,64 and so felt bound to explain the apparent contradition with the preceding rst person formulation. They did so by assigning to heavenly punishment only those cases in which the evidence necessary in human courts was lacking. The interpretation is clearly the result of exegetical problems, and its halakhic signi cance is small. One further, but important, indication of the late date or low stand- ing of the application of heavenly punishment in cases of evidentiary insuf ciency deserves mention. Catalogues of the situations in which punishment was left to dine shamayim are to be found in T. B.K. 6:16–17, T. Shebu. 3:1–3, B.K. 55b–56a, and Y. B.K. 6:1. In none of them does insuf ciency of evidence occur. There is, therefore, every likelihood that M. Sanh. 9:5(b) represents an institution of the tannaitic period. That elements within it are to be found in Second Commonwealth sources does not prove that its origin is of that period, and, without more, it would be unsafe to assume that it does. The sources which substitute heavenly punishment may, on the other hand, safely be assigned to a post-mishnaic, albeit early postmishnaic, date. Perhaps they emanate from Babylonia, where the same practical considerations as those which gave rise to M. Sanh. 9:5(b) did not apply.
5. A New Testament Application of A
2 Cor. 13:1–4 presents few dif culties of translation, but its meaning has long been a matter of debate. NEB reads: (1) This will be my third visit to you; and all facts must be established by the evidence of two or three witnesses. (2) To those who have sinned in the past, and to everyone else, I repeat the warning I gave before; I gave it in person on my second visit, and I give it now in absence. It is that when I come this time, I will show no leniency.
64 On the original meaning see Jackson 1975:46.
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(3) Then you will have the proof you seek of the Christ who speaks through me, the Christ who, far from being weak with you, makes his power felt among you. (4) True, he died on the cross in weakness, but he lives by the power of God; and we who share in his weakness shall by the power of God live with him in your service. Plummer (1915:371–73) accepts, on the plain meaning of the text, that Paul does refer to a third visit to Corinth65 and rejects, rightly, the view that proof in actual legal or disciplinary proceedings is under discussion.66 He then concludes: To avoid these dif culties, Chrysostom and Theodoret, with Calvin and some moderns, suggest that the visits to Corinth, two paid and one about to be paid, are the three witnesses. On the previous occasions he has found much that he was obliged to condemn, and he fears that during the third visit he may nd a great deal of the same kind. That will amount to threefold testimony against them. True that it is the testimony of only one witness, but it is not mere repetition of the same evidence, for he bears witness to three different groups of facts. This is not a very attractive interpretation, but St Paul’s manner of using Scripture is sometimes so free that we can hardly reject this interpretation as unworthy of him.67 Nevertheless, if we accept it, we need not suppose with Bousset that St Paul makes the suggestion that three visits are equivalent to three wit- nesses ‘humorously’. The Apostle is speaking with the utmost seriousness and gravity. Hence the impressive asyndeton of the opening sentences. But with regard to the rival interpretations of the Apostle’s meaning we must be content to remain in doubt. The error in this suggestion lies not in any unacceptable exegesis of the Deuteronomic text—for Plummer’s view, wrong though it be, reproduces virtually an identical interpretation to that of CD 9:16–20—but rather in its conception of what is to be proved. In fact, the text is clear enough on this point. The third visit is to prove to the Corinthian’s the genuine-
65 Cf. 2 Cor. 12:14. On the geography and chronology of Paul’s travels, see Küm- mel 1966:207ff. 66 A view still held by Hughes 1962:474f. For a Pauline text which may possibly represent a more juristic application of CD 9:16–20, see Titus 3:10–11. 67 Cf. Strachan 1933:38: “The passage in Deuteronomy is characteristic of other citations from the Old Testament which Paul makes. It is due merely to an associa- tion of ideas in Paul’s mind, and here is intentionally whimsical”; Héring 1958:201: “Ou bien les trois visites équivalent-elles à trois témoignages? A première vue cette assimilation peut paraître bizarre, mais l’apôtre peut avoir interprété ce command- ment d’une manière assez large et presque allégorique, à la manière des rabbins.”!! Cf. Strathmann 1967:iv.490.
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ness of Paul’s mission,68 and, particularly, the fact that “Christ speaks in me” ( ). It is this thought which runs through the whole paragraph, and gives it coherence. To paraphrase: (1) a third visit is good proof—Deut. 19:15;69 (2) I have said before, and I repeat, that the third visit will be the one in which I impose strong measures; (3) these measures will prove that Christ speaks in me, since Christ (too?) exercises his strength on you; (4) You need not argue that Christ in fact died on the cross (in weakness).70 In fact, he was resur- rected by God. So too shall we, though weak at rst, become strong, as a result of the same divine power, in our ministry to you. That Paul’s earlier visit had not been well received is clear from the immediately preceding chapter, which re ects both anxiety at the likely reception on the third visit, and concern to establish Paul’s status as not inferior to that of the apostles (2 Cor. 12:11). But the clearest indication is in chapter 13 itself, “since you seek proof of the Christ who speaks through me” ( ). Why Christian commentators should have been so reluctant to give this statement its natural meaning is, perhaps, a question to be answered principally in the context of later Christian theology. The only textual argument for the view that the visits are evidence of the offences alleged against the Corinthians71 lies in the context from which the Deuteronomic quotation is taken. But even this is hardly convincing. The NT text reads * ? , following LXX Deut. 19:15 * , * N ? N . N is a translation of the Hebrew davar, which does sometimes have a technical usage in legal contexts. Hence, RSV translate the quotation in 2 Cor. 13:1 “Any charge must be sustained . . .” But the Hebrew davar is found far more frequently in non-legal contexts, meaning sometimes “a word, a saying”, at other times the thing spoken of, “a matter”. The Greek N , used by the LXX as the normal translation of davar, has this same range,
68 Cf. Strachan 1933:38. On the proof of spiritual missions, see Dauvillier 1970:590f., on Gal. 2:1–2. 69 Cf. Lietzmann 1969:160. 70 For the view that the Corinthians had recently been in uenced by Judaeo-Chris- tians, see Menzies 1912:102. 71 Lietzmann 1969:160; v. Vliet 1958:96, followed by Barrett 1973:333. Yet at 334–37 Barrett stresses the theme of Paul’s proof of his apostolic mission, doubted by the Corinthians, in his comments on vv. 3–4.
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except that the technical legal connotation is less prominent.72 The non-legal context is thus hardly inconsistent with the terminology of the quotation, and, indeed, the theological adaptation of a in the New Testament is well recognised. We may observe also that whereas the MT speaks only of davar, the LXX and NT have ? N . By this third visit, Paul seeks to prove his status to the Corinthians, who plainly have their doubts. His argument implies that he did not expect them to accept only two visits as suf cient evidence, despite the opportunity provided by the Deuteronomic formulation. It shares with CD 9:16–22 (and other sources) the view that three represents minimum suf ciency in some cases. It differs from CD in applying this rule to a situation in which there was more than one witness to each of the three events. But, by Paul’s own account, the evidence of the preceding two visits was not regarded by the Corinthians as suf cient. The most important difference between 2 Cor. 13:1–4 and CD 9:16– 20 at rst sight appears to lie in their respective areas of application. CD envisages devar mawet; 2 Cor. is concerned to establish a theologi- cal proposition. The link is to be found in the extended usages of the Greek term a (LXX Deut. 19:15, quoted in 2 Cor. 13:1). Already in classical sources this was extended to cover a witness to truth or to opinion, including theological propositions. One application is to be found in the eduyot of the Jewish sources, in which named rabbis testify to the validity of received traditions.73 In the New Testament, a is also applied to events which testify to the truth of theologi- cal propositions.74 Here, then, three separate events are to be regarded as suf cient “testimonies”, just as were testes singulares to three separate offences in CD. The idea that a prophetic status could be proved by three visitations is not con ned to Paul. Applied to the resurrection of Jesus, it appears
72 See Bauer 1957, ad loc. 73 Cf. Daube 1973a:92. 74 Cf. John. 5:36: “But the testimony which I have is greater than that of John; for the works which the Father has granted me to accomplish, these very works which I am doing, bear me witness that the Father has sent me.” On the classical and New Testament sources, see Strathmann 1967:iv.477ff. Indeed, Nineham 1960:253 comments on the special association of in Luke—Acts with those who have seen the risen Jesus. In patristics, Biblical texts are used as “witnesses” to theological propositions, as, e.g., in Chrysostomos, Adv. Jud. I (Migne, PG 48, 844). See also Glossa Ordinaria ad Deut. 19:15 (Migne, PL 113, 472): Et contra impios vel haereticos, cum testimoniis scripturarum indigemus, duos testes, id est, Vetus et Novum Testamentum adhibemus, vel tres, id est, Evangelium, prophetas, apostolum, ut sic stat verbum.
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in the primitive form of the tradition of the witness list transmitted by Paul in 1 Cor. 13:5–8, and also forms the conclusion to three of the gospels.75 In 1 Cor. 13:5–8 Paul lists six appearances of Jesus: to Cephas, to the twelve, to the ve hundred brethren, to James, to all the apostles, and nally to himself. There is, however, general agreement that the tradition here transmitted is not entirely original, and there is good reason in the text to restrict the primitive form to the rst three appearances.76 Anderson has observed that the list (in both its pristine and its Pauline forms) is restricted to legally competent witnesses.77 This is certainly correct: all the witnesses are male, and all are, by implica- tion, eye-witnesses. But it must be noted that, here as elsewhere, the rst-mentioned appearance would not have been regarded as legally suf cient—in this case because it was to Cephas, a single witness. It thus seems that in the earliest available form of the tradition relating to proof of the resurrection, the insuf cient evidence as to the rst appearance was supplemented by evidence of two further appearances; just as in CD, the insuf cient evidence of one witness to a capital offence was supplemented by evidence of two further capital offences.78 In Matthew,79 the risen Jesus appears rst to Mary Magdalene and other women after they had been sent away from the tomb by an angel (28:9–10). They are told to send the disciples to Galilee, where
75 On this theme, cf. Albertz 1947:124f.; Jaeger 1965:465, citing Acts 1:22, 2:32 to show the early view of the apostles as witnesses of the resurrection; van Vliet 1958:91; Nineham 1960:253. Cf. Glossa Ordinaria ad Deut. 17:6: In titulo quoque crucis tres linguae testantur Christum esse regem Judaeorum: Hebraica, Graeca et Latina (Migne PL 113, 469). 76 See Anderson 1973:116. 77 Op. cit., 133. 78 Three elements—competency, suf ciency, and weight—which modern law dis- tinguishes, are undifferentiated in these New Testament sources. Women, as in the gospel accounts of the resurrection, are incompetent (i.e. inadmissible as witnesses); one male witness (as here), though competent, is legally insuf cient (i.e. the law forbids reliance upon him: Deut. 17:6, 19:15, etc.); two or more male witnesses (though both competent and legally suf cient) may yet lack the requisite weight, i.e. they may not be believed. But whether the cause is incompetency, insuf ciency, or lack of weight, the result is always that proof fails. Thus, there is no real difference between the second and third witnesses in CD, who are, individually, legally insuf cient, and the evidence of the second and third appearances of Jesus according to 1 Cor., which, though legally suf cient, were not taken to possess suf cient weight. 79 Matt. 18:20, “For where two or three are gathered in my name, there am I in the midst of them”, in which the “two or three” is again an allusion to Deuteronomy (cf. Matt. 18:16), is related. The presence of two or three disciples is taken to prove the presence of Jesus.
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Jesus would appear to them. The account given of the ensuing events describes two Galilean appearances, one in ful lment of Jesus’ prom- ise, the second in response to doubts (vv. 16–20)—a total, therefore, of three visits. The same pattern, but more clearly and artfully expressed, occurs in the present conclusion to Mark’s gospel. Jesus appeared rst to Mary Magdalene, who informed the disciples, “but when they were told that he was alive and that she had seen him they did not believe it” (16:9–11). Next, he appeared to two of the disciples. They informed the rest “but again no one believed them” (16:12–13). It was only when Jesus appeared a third time to the eleven disciples at table, and reproached them for their disbelief, that he was believed (16:14–18). Jesus then ascended, and took his place at the right hand of God (16:19), thereby implying that no further appearances were made, and the disciples, now convinced, set out to proclaim their belief (16:20). There could hardly be a clearer statement of the process by which Paul sought to convince the Corinthians of his mission. And the parallel to our CD text is crystal clear on one point: Jesus was not believed on the basis of the rst two visits. The evidence was not regarded as suf cient, and this despite the fact that, though the rst visit was attested by only a single, legally disquali ed witness,80 the second was attested by two of the disciples themselves. The account in Luke is very much more elaborate, and differs from that in Matthew and Mark in several respects. Jesus does not appear personally to anyone but the disciples. Rather, two angel-like gures appear to Mary Magdalene, Joanna, Mary the mother of James, and the other women with them, who inform the disciples. Their account is disbelieved (24:11), but it is not a visit by Jesus that they have wit- nessed. On the same day, however, Jesus does appear to two disciples, who do ultimately recognise and believe (24:13–35). They hasten to tell the eleven, and, while telling them, Jesus appears a second time. They
80 Cf. Capitula selecta ex antiqua canonum collectione (8th cent.?) lib. 16, c. 3: Synodus Hibernensis: . . . Testimonium feminae non accipitur, sicut apostoli testimonium feminarum non acceperunt de resurrectione Christi (Migne PL 96, 1286). Vermes 1973:40–41 argues from manuscript and literary evidence that this originally concluded Mark’s account, and that it was later Christian tradition which added the Appendix to Mark, and the accounts of the further appearances. The theory here proposed is consistent with that view, as long as the original conclusion to Mark is regarded as preceding even the primitive form of the tradition in 1 Cor. 13:5–8. This latter proposition gains support from the conclusion of Schmittals 1971:156–285, that Paul’s proclamation of the resurrection of the dead in 1 Cor. 15 is the climax to an anti-gnostic polemic.
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are startled, and disbelieve “for joy” ( N ( ? v. 41), but their disbelief is only temporary. As soon as Jesus has nished speaking they are convinced, and return to Jerusalem to offer praise in the temple (24:36–53). This tradition is clearly independent of Matthew and Mark. The evidentiary problems are played down. The disciples are convinced as soon as they have received a visit. There is no reiteration of doubt. Yet the tradition of three-fold testimony is preserved in the fact that here, alone among the Gospels, the events immediately following the visit to the tomb are witnessed by three named women (24:10). John con ates the principal characteristics of these two traditions. From Matthew and Mark he takes the stress upon three visits. This is to be seen in chapter 20, in which Jesus (in addition to the two angel-like gures) appears rst to Mary (alone, as in Mark), then to the disciples that same day, and then, eight days later, again to the disciples, in reaction to the doubt expressed by Thomas. Verses 30–31 indicate that this, at one stage in the growth of the tradition, concluded the account. Chapter 21 continues, however, to relate a further visit. An attempt is made to reconcile this addition with the tradition of three, already satis ed in the preceding chapter. In 21:14 the story is interrupted to point out that “this was now the third time that Jesus was revealed to the disciples after he was raised from the dead”. So, indeed, was it the third time he was revealed to the disciples. The rst visit had been to Mary Magdalene alone. Whatever the reason for the supplementary account in chapter 21, there is no doubt that both chapters preserve the tradition of three visits. But in other respects, the Lukan tradition prevails. The account is elaborate, and includes the appearance of the two angel-like gures. Most important, the doubt of the disciples is played down. We are not told that they doubted the account of Mary Magdalene, but only that Thomas (who is said not to have been present with the disciples when Jesus visited them for the rst time) doubted. The tradition of doubt must be the earlier. In the face of their divergence from Jewish belief, the authors of Matthew and Mark sought to persuade by showing that the disciples, too, were as sceptical as the likely audience. But they had been convinced on the basis of evidence which, we now know, was regarded by some contemporary Jewish circles as suf cient in the context of criminal law. Later, when belief had assumed the status of an established dogma, the relating of the disciples’ doubts appeared incongruous, and the emphasis upon it was much reduced.
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It is not for me to pursue in detail the implications of this inter- pretation for New Testament theology. Suf ce it to state the three principal conclusions. Paul and the author of the appendix to Mark were concerned to prove their claims on the basis of legal criteria. In so doing, they made no attempt to hide the doubt with which their messages were received, and they tailored their evidence accordingly. The evidence they produced was of a kind admitted in the criminal law context by one known Jewish group.81 The three testes singulares of CD became three separate witness-bearing visitations.82 Whether Paul or the author of Mark 16 had direct access to CD is, however, a ques- tion which cannot be answered. The gospel writers themselves came to be regarded by the Church as witnesses to the events they described. Yet even when they differed one from another in important particulars, they were to be believed. Torquemada, in the fteenth century, derives the following conclusion:83
81 In the case of Paul one might have expected his source to be Pharisaic. But we have no evidence of the Pharisaic attitude to testes singulares. All we have is a rabbinic source rejecting one example of the institution, supra, 69f. 82 After this study was completed, I found that my association of 2 Cor. 13:1–4 with CD 9:16–23 had been anticipated by two scholars. Delcor 1968:76 writes: “The Second Epistle to the Corinthians clearly implies that Paul himself will personally judge the serious disputes of the community on the testimony of two or three witnesses according to the prescription of Deuteronomy 19:15. Now this passage is very well illustrated by a complete section in the Damascus Document, which is formally concerned with how the statements of witnesses should be made before the mebaqqer (CD 9:16–23).” Forkman 1972:133f. states his conception of the relationship far more fully: “CD IX 16–23, with reference to Deut. 19:15 (and 17:6) gives instruction as to how reproving witnesses from different occasions can be united so that sentence can be passed. In 2 Cor. 13:1 Paul in the same way speaks about the repeated occasions on which he had reproved the Corinthians and describes these occasions as witnesses which can be united to make judgement possible. The parallels are striking. Both Paul and CD interpret Deut. 19:15 so as to make testimonies from different occasions able to be united in order to make judgement possible, even though there is only one witness from each occasion of offence. Of course the situation in 2 Cor. 13 differs from that of CD IX. With Paul it is a question of general admonitions to the community, or to a group within the community, while in CD the rule applies to the transgression of a single individual. But even if Paul does not see his admonitions as juridically necessary prerequisites for expulsion, it is—according to my mind—clear, that he refers to the rule about repetition of reprovings (cf. also Gal. 1:9) . . .” This particular conception of the factum probandum suffers, inter alia, from the resulting dif culty in identifying the factum probans: Is it Paul himself (a single witness repeating his own words) or the visits? v. 1 clearly indicates the latter, and v. 3 what really is the factum probandum. Nevertheless, Forkman makes an interesting point in stressing the elements of reproof. But the status of the reproof itself depends upon establishment of Paul’s own status, and it is towards the establishment of the latter that Paul’s reiteration of the visits is directed. 83 Commentaria in Decretum Gratiani, p. II, lib. III, qu. IX, c. 16.
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. . . Nam diversitas temporis et loci non videtur vitiare testimonium. Primo evangeliste diversis temporibus testantur de cruci xione Christi. Nam Marcus dicit tertia hora. Lucus vero sexta, tamen eorum testimonium valet. We know, he says, that diversitas temporis et loci (by then a technical legal expression) does not (necessarily) vitiate the evidence of two witnesses. In other words, they may be contestes, rather than testes singulares, even though they differ as to time or place. For Mark says the cruci xion occurred at the third hour, while Luke says it was at the sixth; and, despite this, their evidence (that Christ was cruci ed) is valid. Torque- mada does not, however, intend to suggest that evidence is always valid despite diversitas temporis. He goes on to describe the cruci xion as factum continuum vel durabile, a continuing fact, evidence for which, according to both legists and canonists, could be provided by witnesses to different parts of the continuing whole. From the Summa Decretorum of Ru nus, in the middle of the twelfth century, testes singulares had made a startling reappearance in the learned law.84 New Testament exegesis appears to have been one of the channels through which the institution of testes singulares was transmitted from CD to the mediaeval sources, whence it was to in uence both English and Scottish law.85
84 See further, ch. 5, infra. 85 A version of this paper was presented to the Jewish History seminar at Oxford, Hilary term 1974. I am indebted to Professors Baruch Levine, Jacob Neusner and Chaim Rabin, Dr. Geza Vermes, and my Edinburgh colleagues Drs. Peter Hayman and David Mealand, for their comments on it.
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JACKSON_F6_88-110.indd 88 9/27/2007 7:50:32 PM CHAPTER FIVE
SUSANNA AND THE SINGULAR HISTORY OF SINGULAR WITNESSES
Susanna had all the attributes—beauty, status, wealth. Her husband was a leader of Babylonian Jewry; their home was the focal point of the community, and it was there that the two appointed elders sat in judgment. Susanna was also devout and modest. She waited until the people departed at midday before walking in her garden. But the sight of her entering the garden at noon each day was too much for the elders; they became infatuated and obsessed with lust for her. On discovering that their af iction was common, they entered into a conspiracy. One day they observed Susanna dismiss her maids, in order to bathe in an enclosed section of the garden. Thereupon they entered the enclosure, demanded that she yield to them, and threatened that unless she did so they would testify that it was in order to meet her lover that she had sent her maids away. But Susanna remained steadfast; she chose to risk the accusation of the elders rather than commit the sin of adultery. Immediately the elders acted upon their threat. They shouted her down, summoned the household to observe the compromised state of the wife found naked and alone and claimed that they had surprised her with her lover, who had then ed. The servants were deeply shocked. The next day the elders placed their own accusation at the head of the list. They summoned Susanna as if she were a common criminal, not the mistress of the house which played host to the court. She attended, veiled in modesty and supported by the presence of her family—parents, children and all her relatives. The elders ordered her to unveil, in order to feast their eyes and compound her humiliation. Placing their hands on her head, they pronounced their accusation: they had observed her in agrante delicto with her lover; they had attempted to detain the young man, but he had been too strong for them and had escaped. In deference to their position, the assembly believed them and condemned Susanna to death.1
1 In accordance with biblical law: Deut. 22:22.
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Susanna cried out in protest—the omniscient God must know of the falsity of the charge. And as she was being led to her execution, God inspired a devout youth named Daniel to intervene on her behalf. “Fools”, he proclaimed, “You are condemning a woman of Israel without careful inquiry. Reopen the trial. The elders’ evidence is false.” The other elders recognized the special authority conferred by God upon Daniel,2 and he was admitted to the forum. Before cross-exam- ining the accusers, he required them to be separated. Thereupon he berated the rst elder for his past sins, and asked under what tree the offence was committed. “Under a mastick tree,” the rst responded. Daniel promptly denounced him as a liar and told him to stand aside. Having similarly berated the second elder, he asked him the same ques- tion. “Under a holm tree,” came the reply. The whole assembly then turned on the two elders and put them to death in accordance with Mosaic law against malicious testimony.3 “And so an innocent life was saved that day . . . And from that day forward Daniel was a great man amongst his people.” The story was written c. 100 b.c., and is preserved in two Greek versions.4 It did not nd its way into the Hebrew Bible—for reasons which will soon appear—but was preserved by the Church in the Old Testament Apocrypha. Before turning to the legal issues presented by the tale, we may note some points of literary interest. The climax rests upon the different trees advanced by the two elders as the locus delicti. The point is reinforced by a skilful double pun. When the rst elder replies “under a mastick tree” ( ) Daniel retorts that the angel of God has already received instructions to cut him in two ( ) for the lie; when the second testi es that it was a holm ( ),5 Daniel replies that the angel of God is waiting, scimitar in hand, to saw him in half ( ). Patristic sources debate already whether the existence of this double pun is evidence that Greek was the original language of the story; Origen asked his
2 “God has given you the status of an elder.” 3 Deut. 19:16–19. 4 Those of the Septuagint, where it appears as an appendix to the Book of Daniel, and of Theodotion (c. A.D. 150), where it is placed at the beginning. For the texts, see Charles 1913:I.638–651 (by D.M. Kay). In one or two details, Theodotion is here followed rather than the LXX (cf. NEB, following Jerome and the tradition of the Church). For literature, see Derrett 1963:11 n. 5; idem, 1970:168. 5 A type of oak.
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Jewish associates whether they could reproduce it in Hebrew, but they could not.6 In fact, their failure to do so is hardly conclusive evidence. Jerome partially succeeded in transferring the double pun to Latin in the Vulgate: scino/scindet, prino/secet, and a modern commentator has suggested an Aramaic reconstruction from which the Greek might have been derived.7 Most recently, the New English Bible translators have, with modest arboreal licence, reproduced the pun in English: “Under a clove-tree . . . he will cleave you in two; under a yew-tree . . . to hew you down”. The identity of the tree was of concern also to the author of a medieval Jewish version of the story,8 who makes one of the trees into a g-tree, in an apparent attempt to associate the apocryphal Daniel with the historical gure of Rabbi Yo4anan ben Zakkai (c. 100 c.e.), who recommended that witnesses be examined even “as to the length of g-stalks”.9 The story has a pronounced anti-judicial avour. All the details point to the arrogance of the elders, and the humiliation heaped by them upon Susanna—even before her condemnation. But the tensions do not re ect class con ict. The victim is a highly placed member of the ruling élite—no oppressed woman of whom advantage may easily be taken. And the hero, though young, shows no signs of belonging to a different social milieu. The criticism intended by the author is thus directed at a particular type of judge and a particular form of court proceeding, and not the social composition of the bench. The point is given particular force, in terms of Jewish culture, by the theological dimension: the insuf ciency of the court’s evidentiary safeguards is dramatically demonstrated by the fact that God himself is forced to intervene. The particular defect in court procedure with which the author is concerned is, as Daube has shown,10 the collective taking of testimony;
6 See Reichardt 1909:79–80 and Origen’s commentary Stromata 10 (Migne Patrologia Graeca XI 104f; and in Jerome, Patrologia Latina XXV 582f.). 7 Marshall 1902:iv.632. See further Zimmermann 1957–58:236–41, arguing for a Hebrew original. 8 Yosippon MS 24 of the Edward de Rothschild Library, published by Levy 1933. 9 M. Sanh. 5:2; Sanh. 9b. 10 1949:200f.; 1961:12–14. See also Derrett 1970:185f., arguing for the relevance of the story of Susanna to Jesus’ (in effect) shaming away the accusers of the woman taken in adultery in John 7:53–8:11, and arguing for the relevance of Exod. 23:7 to both stories.
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in rabbinic procedure, a little later,11 we do indeed nd the separate examination of witnesses required. The Mishnah also requires that wit- nesses be questioned as to the locus delicti, and rules that contradictory evidence on this point renders the testimony invalid. But the Mishnaic text fails to specify the degree of accuracy required of the witnesses in this regard, and it is far from clear that the kind of diversitas locorum revealed by the cross-examination of the elders would necessarily have vitiated the testimony according to rabbinic law.12 Indeed, some exam- ples preserved in the Talmud suggest by analogy that the evidence would have remained admissible. We are told that if in a murder charge one witness testi ed that the accused used a sword, while the other testi ed to the use of a dagger, the evidence is inadmissible; but if one testi ed that the accused’s clothes were black, while the other testi ed that they were white, the evidence remains admissible.13 Striking con rmation of the view that the difference between a mastick and a holm tree was not necessarily a fatal aw is provided by a recently published Falasha version of the story. In it there are three elders, and they testify that the locus delicti was, respectively, under a g-tree, in the palace, and in the women’s apartment.14 Indeed, the nature of the contradiction in the evidence may well have been of little concern to the author of the original version of Susanna. In a Samaritan version which has claims to represent a stage in the literary development of the story earlier than the Greek texts, stress is laid upon the separation of the elders, but no mention at all is made of the nature of the contradiction in their testimony.15 The introduction of the account of the cross-examination may thus be secondary; its prime purpose may have been literary rather than legal—as a vehicle for the celebrated double pun. But the nature of the defect was crucial as regards the condemna- tion of the elders. Whereas Susanna was entitled to be saved once any irregularity in the trial procedure was proved (even if it did not
11 M. Sanh. 3:6, 5:4. It may be noted that this was particularly necessary in a system which had no notion of perjury. Witnesses in Jewish law are not sworn, and the rabbis made it particularly dif cult to succeed against them on a charge of edim zomemim: see further below at n. 18. 12 The Mishnah tells us only that the witnesses must be asked “in what place?”; the practice of Ben Zakkai in examining “as to the length of g-stalks” is recorded as an example of praiseworthy exactitude going beyond the requirements of the law. 13 Sanh. 41a (R. bisda). 14 Wurmbrand 1963:29–43. 15 Gaster 1925–28:i.199–210.
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necessarily indicate her innocence—since the burden of proof on the prosecution, in Jewish as in modern systems of law, is heavy) one might balk at the summary execution of the elders on the strength only of an horticultural inconsistency. No use saying that this was a judgment of God, or that the guilt of the elders is a datum provided by the author. From early rabbinic times, direct divine intervention in the legal process was rejected. Proof was required to satisfy human cognitive capacities.16 From this perspective, the execution of the elders as “malicious wit- nesses” appeared to Jewish tradition both arbitrary and contrary to law. How could the bystanders have excluded the possibility that one or other of the elders had simply got his tree wrong, by error either of vision or of classi cation? The point is made in two medieval Jewish versions, in both of which it is found that neither of the trees alleged by the elders to have been the locus delicti existed in the garden at all.17 But even this adaptation, though serving to strengthen the impression of the bystander that the elders had deliberately given false testimony, fails to make the story conform to rabbinic law. For the latter required evidence that the false witnesses were at some other place entirely at the time of the alleged incident;18 no contradiction, however extreme, could itself suf ce to convict. Indeed, one of the later versions of the story takes account of this legal requirement: it omits all mention of the execution of the elders.19 It is very probable that the dif culty in reconciling the story with rabbinic law was one reason for the Jewish exclusion of Susanna from the Biblical canon. But there was also a second factor. Susanna proved extremely popular in the early Church, as is attested by catacomb fres- coes from the early second century.20 Indeed the commentary on Daniel 21 by Hippolytus (c. 204 c.e.) is the earliest extant exegetical treatise of the Christian Church,22 and Origen’s interest has been noted already.23 The early fathers exhibit a variety of theological and moralizing concerns
16 M. Sot. 9:9, B.M. 59b. See also Falk 1972:I.113–14. 17 MS. Rothschild 24 in Levy 1933:157–71; Gaster 1899:204f. 18 M. Makk. 1:4. 19 The Falasha version; n. 14 supra. 20 McNamara 1967:xiii.826. 21 To which Susanna became attached, identifying Susanna’s saviour with his Hebrew Bible namesake. 22 Quasten 1953:ii.171; McGuire 1967:vi.1140. It is preserved in an Old Slavonic version only, apart from a number of Greek fragments. 23 Supra, at n. 6.
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in their approach to the story. Novatian,24 Cyprian,25 and Zeno26 see in it proof of the merit of chastity. Augustine commends Susanna for her silence in reply to the charge.27 More dif cult, from the Jewish viewpoint, are the interpretations of Ambrose,28 who cites the tale for Daniel’s pos- session of the holy spirit,29 and those who took Susanna as an allegory of the Church, falsely accused by the Jews.30 Indeed, the compilers of the Hebrew Bible can hardly have missed the potential of the story as a symbol of Jesus, falsely accused by the Jewish authorities. If the interest of the early Church in Susanna was predominantly theological, there were still some who appreciated the legal issues involved. The legal training of Sulpicius Severus (c. 363–420) is re ected in his account:31 . . . Igitur separari accusatores jubet: unumque ex eis interrogat, sub cujus generis arbore adulteram deprehendisset. Ex varietate responsi falsitas deprehensa: Susanna absoluta: presbyteri, qui innocenti periculum creav- erant, capite damnati. In Roman law we nd rules concerning the speci city of time and place in an accusation of adultery,32 and it is possible that the Justini- anic formulation of the rule, though differing from that suggested by Susanna, is in uenced by knowledge of the story. By the thirteenth century Susanna had become the standard authority in romano-canoni- cal procedure for both the separate examination of witnesses and the exclusion of evidence vitiated by diversitas locorum. Tancred writes in his Ordo Iudiciarius (1214–16 c.e.): Et haec separatio testium per Danielem introducta est, sicut legitur in historia de Susanna et nequissimis sacerdotibus:33 . . . primo invenit Daniel testes contra Susannam discordantes de loco.34
24 De bono pudicitiae ch. 9 in Corpus Scriptorum Ecclesiasticorum Latinorum 3/3 pp. 13–25. 25 De Disciplina et bono pudicitiae PL IV 857 (if rightly attributed). 26 Tractatus 1.4.6, 2.16 (PL XI 299–300). 27 Enarratio in Psalmos 137.2 (PL XXXVII 1775). 28 De spiritu sancto 3.6.39–40 (PL XVI 785). 29 Whose functioning in such contexts had been rejected by rabbinic opinion by this time; supra, n. 16. 30 Isidore, Allegoriae 126 (PL LXXXIII 116); Rabanus Maurus, De universo 3.1 (PL CXI 66) the origins of which must go back to the early period of the separation from Judaism. 31 Historia Sacra 2.1 (PL XX 128f.). 32 Digesta 48.2.3 pr. 33 3.9.2, followed by Gratia Aretinus, Summa de iudiciario ordine (c. 1243 C.E.) 2.6.1. 34 3.9.2, followed by Gratia Aretinus 2.6.2, who advises the advocate to ask what
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Bernard of Pavia incorporates Susanna within a concise summary of contemporary learning on the matter:35 Item illud in summa notandum, quod V diversitates dem testium dero- gantes, scil. rerum, personarum, graduum, temporum et locorum, unde versus: Res, persona, gradus, locus, haec sint consona, tempus.36 Diversitas . . . locorum, ut in Daniele unus dixit “sub pino”, alter “sub cino” . . . Nor was the use of this authority con ned to the canonists. It occurs also in Azo’s Summa super codicem (ad 4.20), the Accursian gloss (ad Dig. 22.5.21:3), and the De reprobatione testium (61–63) formerly attributed to Bartolus.37 But the story of Susanna was to play a more signi cant role than this in the development of the law of evidence. Re ection upon the story, from the viewpoint of the observer without inside information, prompted yet another possible objection to the summary execution of the elders. We have seen how some medieval Jewish versions sought to remove the possibility that the inconsistency in the testimony resulted from error. Some canonists went one step further. Perhaps, they rea- soned, both elders were telling the truth. After all, it was not inconceiv- able that the couple made love under both the mastick and the holm tree. To this there was, however, a reply. The elders had claimed that they witnessed the act together:38 thus only one act of love can have been in issue, and the evidence was indeed contradictory. Nonetheless, such an analysis produced an important negative conclusion. Diversitas temporum aut locorum did not necessarily indicate false testimony; there were cir- cumstances in which both witnesses might be telling the truth. The argument rst appears in the Summa Decretorum of the leading Bolognese decretist Ru nus, written between 1157 and 1159.39 It forms there an objection, and the rebuttal of the objection, to the view (to which the author does not commit himself ) of those who argue that there is a distinction between facts quae semel et subito facta iterari non contingit, as in a charge of murdering the bishop, and facts which vel
trees were in the eld—surely an echo of Susanna. On both issues the rule occurs earlier than the citation of Susanna as authority. 35 Summa Decretalium 2.13.9. 36 The full version concludes Si variantur ista, nil sua dicta valent: Dinus Mugellanus, Ordo Iudiciorum, in Wahrmund 1905–31:II/1 p. 5. 37 But now to Jacobus Aegidius. See Caselli, Corpus Glossatorum Iuris Civilis 1970:V, p. viii. 38 This point is, indeed, clear from the ancient Greek versions, esp. LXX v. 38. 39 c.III, qu.IX; see Singer 1902:271.
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iterari habent vel longa temporis continuatione produci, such as adultery com- mitted on different days, or treason where evidence is given of differ- ent aspects of the plot. In the former class, testes singulares may not be admitted; in the latter, they may. The doctrine proved controversial at rst. The glossed Decretum accepts it only for proof of continuing acts, not for acts liable to be repeated: testes singulares may thus be admitted to prove a single act of fornication observed by the witnesses successively through a peep-hole, or to prove the celebration of mass by an excom- municated priest, where the witnesses testify to having heard different parts of the mass,40 but not to prove repeated acts of adultery (even when committed with the same lover). The argument appears too in one of the earliest Anglo-Norman ordines judiciarii, the Ordo Bambergensis (c. 1182–85),41 where the author again doubts the doctrine. But by the end of the twelfth century it receives unquali ed support from the Ordo formerly attributed to Pillius, but now to Bencivenne.42 Diversitas locorum vel temporum, says the author, is not fatal unless the act does not admit of repetition (like killing), or, where it does permit of repetition, where the witnesses testify that they saw the act together, as did the priests43 who accused Susanna. A few years later, Damasus, in his Summa de ordine iudiciario (1210–15), is still hesitant.44 What guaranteed the survival of the doctrine was its acceptance by Durantus in his Speculum Judiciale (1276).45 In the fourteenth and fteenth centuries the doctrine was further discussed and re ned by, amongst others, Johannes Andreae in his Additiones to the Speculum (1346) and by Torquemada (1388–1468) in his commentary on the Decretum.46 By the sixteenth century we nd an elaborate body of learning de ning the circumstances and effects of admitting such evidence.47 A threefold classi cation of singularitas (obstativa, adminiculativa, diversi cativa) was developed.48 Singularitas was
40 Gloss ad. c.III qu.IX c.16 (“Nihilominus”). 41 T.xv. See Von Schulte 1872:311. The language here closely follows Ru nus. 42 Pars III tit,13, in Bermann 1842:73f.; Wahrmund 1905–31:V/1,116f. On the attribution, see Kantorowicz 1929:73–80; Wahrmund 1905–31:V/1:xix–xx. 43 The transformation from elders to priests is not con ned to Christian sources. It occurs also in M.S. Rothschild 24. 44 T.LXV in Wahrmund 1905–31:IV/4, p. 47. As the text stands, Damasus rejects the doctrine with quali cations. 45 Lib. I Partic IHI 6 nus. 16–17. 46 Commentaria in Decretum Gratiani p.II lib.II qu.IX c.16. 47 Amongst the most signi cant contributors are Cravetta, Julius Clarus, Prosper Farinatius, Giuseppe Mascardi, Bartholemaeus Bertazzolius, and Simanca. 48 Farinatius, De testibus Lib.III tit.VII qu.64 nus.3–4 (1592).
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obstativa where the issue was factum non reiterabile or where, though itera- bile, it was alleged not to have been repeated. In such cases a thousand contradictory witnesses were worth less than a single uncontradicted witness, since the contrarietas was likely to have resulted from dolus.49 The example given is the elders’ testimony against Susanna. Our story thus remains part of the canonist tradition throughout an enormous process of elaboration; indeed, when Sir George Mackenzie adopts the threefold classi cation in his Institutions of the Law of Scotland (1684), he takes Susanna along with it.50 Whether it was indeed re ec- tion on the story of Susanna that provoked the canonists into partial acceptance of testes singulares is dif cult to judge. The institution was not completely unknown in the ancient world, and channels of transmis- sion were available.51 On the other hand, the argument from Susanna occurs in the earliest canonist discussion of the rule. We shall leave the issue open.
English canonists were, of course, aware of the continental writings. Even the reformed code of English canon law, which Henry VIII attempted to promote in 1552, approved the use of testes singulares provided that their evidence tendat ad unum et eundem nem.52 A century later, the common-law judges,53 followed by Parliament,54 were more successful; testes singulares became admissible for proof of treason, the one case which all the sixteenth-century canonists accepted as an exception to the general rule in crime.55 The trial of Christopher Love for his part in the so-called Presby- terian plot (in favour of Charles II) provides the earliest extant discus- sion of testes singulares in England. Love objected to the evidence on the grounds that several of the acts alleged to have been committed,
49 Farinatius, op. cit., nu.36. 50 Pars.II tit.26 nu.14. 51 The institution is attested in the Damascus Rule of the Dead Sea Sect, and is re ected in the New Testament. For the ancient sources, see ch. IV, supra. 52 c.40. 53 In addition to Love’s case, discussed below, see Lord Keble in Lilbourne’s case (1649) St. Tr. 1269, 1401; the resolution of the judges in the Case of the Regicides (1660) 5 St. Tr. 947, 977; Kelyng 9 (84 E.R. 1057); L.C.J. North in Viscount Stafford’s case (1680) 7 St. Tr. 193, 1527, and the case of Stephen Colledge (1681) 8 St. Tr. 549, 620. 54 7 & 8 Will III c. 3 ss.2, 4. 55 E.g. Mascardi, De Probationibus lib.I concl.462 nus.16–17; Farinatius, De Testibus lib.III tit.VII qu.64 nus.220–2.
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between 1648 and 1651, had been spoken to by one witness only.56 To this, the Attorney-General made only a preliminary reply:57 My Lord, he knows there are shrewd pieces against him that he hath acknowledged, but he would take them off one by one; but when they are put together, they will not be single evidence, nor single testimony, but a continued reiteration and repetition of treason. “Continued reiteration” bears more than a passing resemblance to the canonist terminology. Love’s objection was, however, met at greater length by Sir Thomas Witherington, second counsel for the Commonwealth:58 . . . In a case that consists of a complicated fact, that is, the reiteration of many actions, my Lord, I conceive none of those laws (requiring two witnesses) are to be intended, that for every of the particular facts there should be two witnesses: that cannot be the intention of any of these laws, that in every particular fact, that is to say, whether Mr. Love was present, at the reading of the letters; if you have one witness to that, another for the writing of them, another to the sending of them; though these three witnesses speak to several parts of the business, yet they are a concurrent testimony, for all agree to the fact.59 I well remember, my Lord, a case in the Star Chamber, against B. of Leicestershire; I think there was an information against him for bribery and extorting of fees. The matter came in the conclusion, that one man proved a bribe of 40l. and another a bribe of 40l.; but there were several witnesses to several bribes. The question now was, whether he took bribes, or no? And these tending to the same general charge, it was the opinion of all the judges, that he did extort and take bribes. The one witness spake to one bribe, and another to another; and in that case, as two witnesses made good a charge against an offender, yet in that case it was taken, that where witnesses, though they speak not in every particular, yet, all tending to the same general charge of bribery, these were taken for plural witnesses, and that was a good conviction. That was the opinion of the judges then. I mention this case only for an instance to express myself in this; for Mr. Love cannot expect, that to every particular thing laid to his charge two witnesses should be produced. But, my Lord, when one witness proves, this thing he hath done, this letter hath he written, and
56 (1651) 5 St. Tr. 43, 138–44. 57 At 167. 58 At 178–9. Foster “Discourse of High Treason” ch. 3 s.8 in his Reports of Crown Cases 3 ed. (London 1792) 235, quoted in 5 St. Tr. 239–240, gives Witherington the credit for being the rst to suggest the use of testes singulares in treason. 59 The example here is somewhat ingenuous. The acts which Love complained were attested by only one witness ranged beyond the issue of the letter.
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another, that another thing he hath done, which all tend to the treason; now these are more witnesses, and two or three witnesses of the same thing, though not to the same individual thing, it is—So that upon the matter they are concurrent witnesses in this complicated fact, though not concurrent in this or that circumstance: for that is impossible in almost any action to be done. The af nity to canonist conceptions is undeniable. Treason is here the subject of a general charge, being conceived as a single whole, the various parts of which may each be evidenced by a single witness. Farinatius had expressed a similar view,60 and had provided an explicit statement of the underlying conception when he wrote that the regula against singularitas did not apply: Quando agitur de probando unum totum, nam tunc testes singulares deponentes de diversis partibus, bene probant illud totum.61 Hale’s attempt, later in the proceedings, to show that the indictment charged a series of distinct treasons against Love,62 was directed, in part, to destroy the unity which alone justi ed joining the particular acts together. In Scotland, the reception of testes singulares is clearly evidenced. The Speculum of Durantus was available by 1382,63 but the earliest evidence of application occurs in the Milntoun divorce case, appealed to the Court of Session in 1667.64 Lady Milntoun had obtained a divorce in the Edinburgh Commis- sary Court on the grounds of her husband, John Maxwel’s adultery.65 Maxwel appears to have been quite satis ed with this outcome, but Sir John Whitefoord, to whom Maxwel had assigned his liferent-right
60 Supra, n. 55. 61 De testibus III.VII.64.160. 62 At 224ff. 63 Smith 1936:187. For fteenth-century catalogues, see Smith, loc. cit.; Stein 1968:39. 64 Lady Milntoun contra Laird of Milntoun, Stair’s Decisions of the Lords of Council and Session (Edinburgh 1683) i.453; reproduced almost verbatim, in what concerns us, in Morison’s Dictionary 27–28 M 12101 (no. 215), and see 29–30 M 12636 (no. 540). Earlier in the seventeenth century, both Skene and Bisset explicitly exclude testes singulares (without quali cation) in their statements of the two witness rule. See Sir J. Skene, Ane Short Forme of Proces (1609) c. 22:3, in 1774:18, quoted by Walker 1958:309; Bisset, Rolment of Courtis (1622) t.26 c. 8, in Hamilton-Grierson 1920:i.200. 65 Divorce a vinculo for adultery had been available in Scotland for more than a century. See Ireland 1958:94f.
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(which was forfeited as a result of the divorce)66 was not. To protect his interest he sought reduction of the decreet in the Court of Session, on grounds which included the insuf ciency of the evidence of adultery: Paterson in his rst examination before the Commissars, Depones that he knew John Maxwel and his Lady, and that he saw John Maxwel in naked bed with Margaret Davidson lying above her, and that he upbraided John Maxwel for it, who answered he carried not alwise his Wife about with him. Clerk Deponed that in another Moneth, at Edinburgh he saw John Maxwel in naked Bed with Margaret Davidson, and that the said John was very displeas’d at his coming into the Room. The Goodman of that House being another Witnesse, deponed that John Maxwel and another Man, and two Women lay altogether at one time in one Bed in his House, and that he saw John Maxwel very familiar with one of the Women, Embrac- ing and Kissing her, and keeping her upon his knee, whereupon he put them out of his House. Another Witnesse Deponed, that seeing Margaret Davidson with Child, she acknowledged to him that it was to John Maxwel, and that it was commonly reported that she called the Child Maxwel after John Maxwel. The Lords ordered a debate on the question of suf ciency. For White- foord it was contended that: Albeit more Witnesses being singular, but not agreeing to the same Fact, or some times one Witness may be receiveable to infer Tortour, or that the several Witnesses agree not as to all the same points, and circum- stances, as if the Witnesses look through a rift or hole, albeit they cannot see all at the same instant, yet all of them see the same individual Fact, or if one Witness Depone in the case of Murder, that he saw the Party accused with a bended Pistol, or drawn Sword go in to a Room, but going out saw no further, and another hear the Shot and the Stroaks, and saw the accused coming out alone, or with a bloody Sword, and a third saw the slain lying Dead in a Room, and no more than these, although they agree not as to the same points and minutes of Time, yet all agree in one Fact, but the Witnesses not agreeing to one Fact, are all single Wit- nesses, and are not Contestes, and so cannot be Confronted, Con rm’d, or Redargued each by other, which is the great ground of Faithfulness, and Truth of Testimonies . . . Whitefoord thus conceded three points: that testes singulares were suf- cient to infer torture; that witnesses successively viewing the same (continuing) offence were (impliedly) contestes; and that so were witnesses to distinct circumstances of the same offence. On all three there was
66 Cf. Justice v. Murray (1761) 1–2 M 334 (no. 11).
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good authority.67 He denied, however, the suf ciency of witnesses sever- ally attesting distinct facts. In terms of the canonist classi cation, he accepted singularitas adminiculativa (cumulativa), but not singularitas diversi - cativa. In reply, the canonist doctrine of reiterable acts was adduced, and authority cited: As to the second point, it was alleged, that albeit the common rule be that in matters Criminal, the witnesses must be Contestes, both being wit- nesses at once to the same individual Act, yet it had these limitations. 1. That though this hold in Criminals speci co, yet not in crimine generico, which may be perpetrate by reiterable Acts when the pursute is not Capital, but either for Tortour, Canonical Purgations, or to any Civil Effect, as in Adultery it is crimen genericum, by reiterable Acts, and therefore being pursued civiliter to separate the Marriage, or restore the Joynture, it might be proven by two witnesses, though not concurring in the same individual time and place, and therefore singular, albeit not single witnesses. And the Lawyers do generally give the instance in Adultery, which is a secret and transient Fact. And if such proof were not suf cient it would be impos- sible to prove it; but if Adultery were pursued Criminally in these Cases where it is Capital, Probation were required more exact, and agreeing in time and place. Or if the Case were in Murder, which is not reiter- able, witnesses not agreeing in time and place could not prove, but in Adultery, hearesie simonie, and such reiterable Crimes, witnesses to diverse Facts being in the same Crime are suf cient; for which Clarus, Farnatius and Covaruvias were cited.
67 On suf ciency for torture, see Clarus, Receptarum Sententiarum Opus 5.53.18–19. The matter, however, was disputed: Cravetta, Consiliorum sive responsorum 73.34; Farinatius, De testibus III.VIII.54.107. On successive witnesses to the same continuing act, the canonists had been agreed since the glossed Decretum (supra, n. 40), and still were (e.g. Farinatius, De testibus III.VI.64.90–61), and it was for this proposition that Mackenzie 1678:p.I tit.17 no. 7 regarded the Milntoun case as authority. On suf ciency for circumstances of the same crime, see infra n. 89. Whitefoord’s example combines the problems of circum- stantial evidence and evidence of different types (unus ex visu, unus ex auditu etc.). On proof of homicide see also Mascardi, De Probationibus vol.II concl. 865 nus.24–5. The example reads suspiciously like that given in several Jewish sources, where the view that such evidence (even attested by contestes) was insuf cient came to prevail. See e.g. Mekhilta ad Exod. 23:7 (Lauterbach III. 169–70): “Suppose they see him pursuing his fellow-man to kill him with a sword in his hand . . . The witnesses then lose sight of him. After a while, however, they nd the one who had been pursued slain but still writhing, and blood dripping from the sword in the hand of the pursuer. I might understand that he should be declared guilty. But it says: and the innocent and righteous slay thou not.” On the development of the tradition, see Neusner 1973:205ff. The peep-hole problem (cf. the glossed Decretum above, at n. 40; Baldus C.4.20.18 nu.41; Farinatius, De Testibus III.VI.64.91) was also relevant to Jewish law, where it was debated whether successive witnesses were “disjoined”: Ket. 26b, B.B. 32a, Sanh. 30a.
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Even without the citations,68 the canonical pedigree of the passage would be undeniable. Not only are reiterable acts made an exception to the general rule, but also the classical examples, adultery and homi- cide, are used, and the fact that adultery is the common example of a reiterable act is recognized. The use of singulares in heresy, simony, and proceedings leading to canonical purgations is accepted by Farinatius.69 The distinction between civil and criminal effects was well accepted amongst the sixteenth-century writers, and the forfeiture of rights in a dowry as a civil effect of adultery is, indeed, explicitly accepted by Clarus and Farinatius.70 In two respects, however, the argument for Lady Milntoun departs from canonist conceptions. The issue here was not merely one of prop- erty; the decreet had pronounced divorce a vinculo. The same situation could not arise in canon law, where the effect of adultery could only be separation a mensa et thoro. But in those circumstances in which dissolu- tion of a marriage was possible in canon law, the criminal standard of evidence was required.71 A parallel question, debated in Scotland about this time, was whether women were admissible to prove adultery in divorce proceedings.72 To the argument that some canonists did regard them as admissible, Dirleton replied that that was because the effect of divorce was separatio mensae et thori, not vinculi.73 Equally signi cant is the departure from canonist conceptions revealed by the terminology. The argument for Lady Milntoun turns the canonist proof in genere (which Clarus, rightly, identi ed with proof ad civilem effectum)74 into proof of a crimen genericum. In the present argument, the only possible effects of such proof are said to be torture (designed
68 Neither the report nor the pleadings, preserved in the Scottish Record Of ce, give the exact citations. Covarruvias discusses testes singulares only in the context of usury. 69 De testibus III.VII.64.202, 218 (heresy, adverting to procedure before the Inquisi- tion); 274 (simony); 219 (canonical purgations). 70 Clarus, Receptarum Sententiarum Opus 5.53.19; Farinatius, De testibus III.VII.64. 229. 71 Bertazzolius, Decisivarum Consultationum 273:5; Farinatius, De testibus III.VII.64. 119. 72 Monteith v. Monteith (1683) 37–38 M 16684 (no. 94), in which the Court of Session held that they were admissible ad civilem effectum (including, in its view, divorce). 73 1698:224f. Conversely, but to similar effect, it had been argued for Lady Monteith that if the canon lawyers rejected women witnesses even for separatio, Scots law ought all the more to reject them for divorce a vinculo, 37–38 M 16688. 74 Infra, 107f.
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to extract a confession), canonical purgations, or any civil effect.75 Later, this crimen genericum was to become the “general charge”, which could be proved by testes singulares with criminal effect. The Lords of Session refused reduction of the decreet, nding the adultery suf ciently proven by the witnesses. But their view on the point of law cannot be satisfactorily ascertained. There were, as we have seen, four witnesses. The evidence of Paterson and Clerk was acceptable eyewitness testimony of adultery,76 that of Paterson, indeed, being as unambiguous as could be imagined. That of the third witness was not quite so reliable. The account in the report suggests that the witness may himself have forestalled immediate implementation of a clearly adulterous intent. The fourth witness testi ed, ex auditu, to Maxwel’s paternity. Only if the evidence of this last witness (about which no exception seems to have been taken)77 is discounted is that of the testes singulares unsupported. Nevertheless, the case became a precedent for the suf ciency of testes singulares in divorce proceedings,78 and its reper- cussions were to extend also to the criminal law.79 For the modern version of the rule, it is another attempted perversion of the course of justice that was to prove crucial. The (unreported) case of the Reverend James Hogg and Thomas Soutar (1738), preserved in a MS Book of Adjournal in the Scottish Record Of ce,80 provides the basis from which Scotland has developed the “Moorov doctrine”,81 which Lord Hailsham in 1973 eagerly sought to incorporate into English law in DDP v. Kilbourne.82
75 Scots law, like Roman law and canon law, had long regarded the adulterer as an inhabile witness. See Fragmenta Collecta cc.18, 19 in The Acts of the Parliaments of Scotland (1844) i.744. 76 In theory, even eyewitness testimony that the parties were together naked in bed was not direct evidence of adultery. But it created, as Mackenzie t.XVII s.7 (citing Farinatius) puts it, a “strong and violent presumption”, which the law here accepted as suf cient. 77 Exception was, however taken to the fact that both Clerk and Paterson’s knowledge of the identity of the woman they saw in bed with Maxwel (though they both knew she was not Maxwel’s wife) was ex auditu. 78 Mackenzie p.II t.6 no.14; Hogg and Soutar (1738) infra; Dickson 1864:II.1184, cf. Hamilton Grierson’s 1887 edition, vol. II, pp. 987–88. 79 Already Mackenzie, p.I tit.17 no.8, though disapproving such an extension, did not completely rule it out. His equivocation was later to lead to his being cited by both sides in Hogg and Soutar. 80 Book of Adjournal for Feb. 27, 1738 June 11, 1739, 136ff. The extracts that follow are published with the approval of the Keeper of the Records of Scotland, for which I am duly grateful. For the full memorial, see Jackson 1984. 81 Moorov v. HM Advocate 1930 JC 68. 82 [1973] A.C. 729.
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The case of Hogg and Soutar represented the culmination of a long feud in the parish of Caputh between the laird, David Haggart of Cairnmuir, and the minister, James Hogg, in the course of which the latter’s accounts had come under suspicion, his manse had been burned down, and proceedings for scandal had been initiated against him in the Commissary Court. The minister was determined to have his revenge. He caused an information to be laid against the laird, charging him with responsibility for the burning of the manse, incest, and perjury in the scandal proceedings. Haggart was imprisoned fol- lowing the charge, but at the hearing Hogg’s own witnesses claimed to have been suborned, and the prosecution was abandoned. Haggart was not content to have his name cleared. He initiated criminal pro- ceedings against Hogg for subornation of testimony. A procession of witnesses testi ed to the approaches made to them by Hogg and his accomplice, Soutar. But the jury encountered a dif culty. Scots law had received the ancient rule requiring corroboration.83 In this case, each act of subornation was evidenced only by the witness concerned. Yet the majority of the jury clearly considered the accused guilty. They returned a verdict in the following form: Found, that the crime of Subornation or Endeavouring to Suborne People to be witnesses, as Lybelled against the Pannell, Mr. James Hogg, Proven in Sundry Facts, Each Fact only by one single Witness. The court was taken by surprise: the verdict was potentially contradic- tory—on the one hand a nding of “guilty”, on the other a statement which threw doubt on the legal suf ciency of the evidence. The court adjourned and sought memorials from the parties on the legal position. For Haggart it was argued that the jury’s statement on the evidence could not detract from the general verdict of guilty; but that in any case the evidence found proved by the jury was legally suf cient. The issue was thus joined on whether testes singulares could be admitted to prove a criminal charge. From Hume’s short account of the case,84 one might suppose that the question was determined without reference to foreign authority or established concepts. The memorials reveal an entirely different picture.
83 Bisset i.200; Balfour 373; and Stair IV.xliii.1.2, quoted by Walker 1958:309. Balfour and Stair quote the Biblical text; Bisset alludes to it in the phrase “ ve at the leist”. 84 Commentaries 1800:ii.236–37.
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They show that Hogg and Soutar represents a crucial bridge between the medieval and modern doctrines. Counsel for Haggart posed the issue in standard canonist termi- nology. In part, they built upon the argument in Milntoun, that testes singulares could be used for proof of a general charge. But they went a signi cant step further. They claimed that such proof was suf cient even for criminal conviction. Moreover, they showed little concern to circumscribe the type of general charge that admitted of such proof. They submitted: Where a Crime is Charged of a General Nature, Capable of Reiterated Acts, every Act laid as tending to the same End, is a Quali cation and Circumstance of the General Charge; and, therefore, the particular cir- cumstances may well be conjoined to make out the general Charge, as well as in the Case of other Circumstantiate Evidence . . . First and foremost of the authorities cited is the English treason doctrine, where, they observe, the charge, such as compassing and imagining the death of the king, is of a general nature, the overt acts tending towards it being charged as circumstances. Yet each overt act need be proved by only one witness.85 The analogy is not entirely arbitrary. In treason, the overt acts are part of a single plot, directed to a single, speci c purpose; in subornation, the approaches to different witnesses are likewise part of a single plot, directed to a single purpose, the conviction of the victim in a single proceeding (if not, necessarily, on a single charge). The memorial then proceeds to adduce continental authorities. The Codex Fabrianus86 of Savoy is quoted for the rule that furtum in genere may be proved by testes singulares even though the witnesses are to different thefts; the anomalous result being that the accused may be punished tanquam fur, but no order for restitution of the stolen property may be made since no single theft has been proved. The next authority is Gaill’s Observationes Practicae (1663)87 where it is said that testes singulares are regularly regarded as suf cient quando aliquod in genere probandum est, puta Titium esse insanium aut furiosum. The context of Gaill’s discus- sion, not mentioned in the memorial, is proof of a hunting servitude.
85 The memorial cites Lord Chief Justice Holt in Parkyns (1696) (13 St. Tr. 63, 131–32) and 7 & 8 Will III c. 3. 86 Lib.6 tit.2 de n.5. 87 Lib.III Obs.66 nus.11–12.
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Carpzovius’ Processus Juris in foro Saxonico (1708)88 is then quoted for the general proposition that the witnesses may be singulares when time and place are not de substantia. “And then he goes on to give some instances.” It is hardly surprising that counsel omitted to quote the examples: they are of proof of possessio, iurisdictio and aditio haereditatis. Nevertheless, the memorial proceeds to argue that: . . . in the present Case, it could not be said, That Time or place is of the Essence of the Crime; for it was the same thing, and made no alteration, at what Time or place the Pannels might have suborned the Witnesses . . . The next recourse is to reasoned argument: the fact that singulares can- not be challenged as contradictory, since they testify to different facts, cannot be fatal, since such is the effect of “Singular, Adminiculative Witnesses”, who each testify to different circumstances surrounding the same alleged fact.89 Counsel then turned to Scottish authority, citing Sir George Mack- enzie’s reference to Milntoun, but suggesting that his explicit reservation as to the application of the principle to criminal cases was inconsistent with his acceptance of singulares testifying to different items of circum- stantial evidence. Reference was also made to two criminal trials of 1705, neither of which, however, clearly supported the proposition for which they were adduced, that there was authority for conviction on the evidence of a single witness, without cumulative circumstances.90 The memorial concludes with a policy argument, that unless the witnesses could be conjoined, there could never be proof of “an occult Crime of this Nature, capable of Reiterated Acts”. After a number of preliminaries, the memorial for Hogg set about demolishing Haggart’s authorities. Mackenzie’s view was that evidence by singular witnesses of two different acts of adultery, even though committed with the same woman, was not probative in a criminal prosecution. Indeed, counsel ventured to doubt the authority of Milntoun as a precedent for proof suf cient to support a divorce.91 The Books
88 Tit.XIII art.III nu.85. 89 Whether such testimony should be classi ed as exhibiting singularitas adminiculativa is doubtful. That term denotes evidence deriving from different types of proof (unus ex visu unus ex auditu etc.) and the effect was only semiplena probatio: Cravetta, Tractatus de antiquitatibus temporum 4.4.3; Farinatius. De Testibus III.VII.64.52, 113. As for eyewitnesses to different circumstances, see Farinatius, De testibus III.VII.65.16–20. 90 Trials of Gabriel Clark and William Bisset. The opposing memorial counters with the corroborative evidence in these cases. 91 The memorial states that the Court of Session had held in a recent (unreported)
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of Adjournal showed that a verdict of not proven was the common outcome where different acts of the same crime had been proved by single witnesses, and no instance could be found of a conviction on such a basis. Haggart’s case was founded upon a distinction between speci c and generic crimes, and, in particular, upon the view that subornation in general could be proved by testes singulares. Both the distinction, and its application, were strongly denied: It was answered, rst, That the Subornation of Witnesses is in no other Sense a Generick Crime, than Murder, Adultery, or Theft; Suborning of one Witness was equally different from the Subornation of another, as Committing Adultery with one Woman was different from committing Adultery with another, or as the Theft of one Cow from one Man was different from the Theft of another Cow from another . . . But, Secundo, Mr. Hogg was advised, that a Criminall Prosecution could not be Car- ried on for a Crime in Generall, that a Special Fact must be Lybelled and proved, and unless each Fact is proved by two Concurring Witnesses, it is not proved at all; That a Proof of one Crime can be no Proof of another Distinct Criminall Fact of the same kind. If conviction on a similar charge (on the evidence of two witnesses) could not be conjoined with the evidence of a single witness, how could the evidence of a single witness to a similar allegation be conjoined? A general charge, was, moreover, contrary to the Natural Rights of Mankind, since it denied any real possibility of defence. The distinction between proof in genere and in specie had, in fact, been misunderstood: And in this Mr. Hogg was supported by the General Opinion of the Doc- tors, who though they speak and treat of proving a Crime in General, and a Crime in Special, with great Indistinctness; Yet when they are rightly understood, they don’t differ, but agree with what we now plead; particularly Julius Clarus, in his Receptis Sententiis, Lib. 5. n Quaestio 53 no. 18 et seq. The passage then quoted92 explicitly identi es proof in specie with penal and proof in genere with civil effects, such as forfeiture of dowry for
divorce case, of Ederline, that “single witnesses Deponing to different Facts, could not be Conjoined, even so as to infer a divorce”. See, however, Dun v. Bryce (1746) in Walton 1940:130f. 92 “Where, after having observed, That Single Witnesses don’t prove, he adds: et haec conclusio de plano procedit, quando agitur de probando aliquo Delicto in Specie, nam eo Casu debent Testes esse contestes ut suf ciant ad Condemnationem; Sed quid si agatur de probando Delicto in Genere, puta aliquem esse Hereticum, Adulteram, Usurarium, Blasphematorem, vel huiusmodi, numquid Testes Singulares, qui Deponunt
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adultery, and reduction of the suspect’s testimonial credibility. It is this passage which must lie behind the general citation of Clarus in the report of Milntoun,93 and the analysis it contained had gained its author much credit in his own and the immediately succeeding generation.94 The memorial goes on to cite Farinatius to the same effect.95 It seems very likely that counsel found his way to these authorities by way of Stair’s report of Milntoun. But all credit must be given. The Milntoun report cited Clarus and Farinatius only in a very general manner. Coun- sel for Hogg indenti ed the vital element in the doctors’ analysis. Nor was there any evidence, the memorial continues, of any Scottish case where a crime in general had been libelled, much less sustained. The nearest approach had been in another charge of attempted sub- ornation of witnesses, brought against Barrisdale in 1735,96 where the general article had charged that the pannel “did at several different times and places, betwixt the rst of April 1734 and the rst of December 1735, endeavour by Rewards, Threatenings, and other undue Methods, to Induce several Persons to give Evidence against the Complainers . . .”, after which the libel proceeded to particularize the attempts, giving persons, times, and places. The general article had been dismissed by the court, and the decision was authority for the view that subornation in general could not be libelled. Though the court had, in Hogg’s case, already found the whole libel relevant, the evidence of the witnesses
unusquisque eorum de diversis Actibus, Suf cient ad concludentem probationem. And after having observed a Number of the Doctors who were for the af rmative, he adds, Ego aliquando cogitabam, quis esset Sensus Doctorum ita loquentium de probando Delicto in Specie, vel de probando Delicto in Genere, et credo quod Secundum eos tunc dicatur agi de probando Delicto in Specie, quando tractatur de puniendo aliquid Criminaliter, Et hoc Casu verior est Secunda Opinio, quod Scilicet Testes Singulares non probant aliquem esse Adulterum, vel Hereticum, vel Usurarium, et ita Semper vidi servari; And after quoting Authoritys, he adds, Tunc vero agi dicunt de probando Delicto in Genere, quando agitur non de poena instigenda, sed ad alium nem, puta excipiendo de Adulterio ad privationem Dotis, vel de alio Crimine ad Diminuendam dem Testis. Here ’tis apparent, that this learned Author had no Notion of a Crimi- nal Accusation for a Crime in General, or of proving a Crime by Single Witnesses to different Acts.” 93 Supra, 101. 94 Bertazzolius, Decisivarus Consultationum 20:19; Farinatius, De Testibus III.VII.64. 229. 95 De testibus III.VII.64 nus. 200, 217, 218, 228 and 232. 96 Book of Adjournal for Feb. 5, 1734–Feb. 9, 1736 898ff. For the argument in support of the general charge, see 927–30; for the argument against, 972–73; for the interlocutor of relevancy rejecting the general article, 999–1001.
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ought to be taken only on the particular subornations alleged, so that two witnesses were required for proof of any one particular charge. This last argument was hazardous, since counsel was, in effect, asking the court to deprive its earlier decision on the relevancy of the libel of practical effect. Counsel therefore proceeded to plead in the alternative. If subornation in general was relevantly libelled, the jury’s verdict still did not disclose a nding of evidence suf cient to support the charge. Hogg was charged with attempts to suborn witnesses on three different charges, re-raising, incest, and perjury in scandal proceedings which Haggart had brought against Hogg in the Commissary court. These were very different subornations, and even if the evidence of testes singulares on any one would sustain a general charge of subornation to prove a particular offence, the jury’s verdict did not disclose which single witnesses had been believed. It was not, therefore, clear that more than one attempted subornation to prove any one of the three accusations had been found. The limited extent of the concession made in this alternative plea is noteworthy. Counsel did not accept that attempted subornation was, per se, relevant as a general charge. At the very least, attempted suborna- tion for proof of a particular charge was required. The link between the charges had to be more than the mere desire to convict the accused of attempted subornation; the testimony sought had to be directed to proof of the same charge. Next, counsel turned to those foreign authorities which most appeared to support Haggart’s case, foremost amongst which was the English treason doctrine. No objection was taken to the comparability of the speci c rule. But with sound comparative method, the memorial set the English rule against its background: in England an accused did not come to trial unless committed by a grand jury’s indictment, and even when brought to trial could not be convicted unless the trial jury was unanimous. The dangers of wrongful conviction were therefore mitigated by safeguards which did not exist in Scotland; and, indeed, had Hogg been tried in England he would have been acquitted, for the Scottish verdict against him had not been unanimous. Secondly, there were a number of decisions cited by Huber which, counsel conceded, did seem to show that single witnesses to different facts had been found suf cient to prove a crime.97 But these rulings were the
97 Ibid., 421–22, citing Praelectionum juris Romani, ad Dig. 22.5 tit. De Testibus nu. 18,
JACKSON_F6_88-110.indd 109 9/27/2007 7:50:37 PM 110 CHAPTER FIVE local law of Friesland, and, on Huber's own view, were contrary to the general rules of law, and thus ought not to be followed as a precedent in Scotland. Finally, Hippolitus Rimaldus had been cited to show the use of slncplaresfor proof of heresy before the Inquisition. The effect, it was suggested for Hogg, was only to oblige the suspect to recant, "But indeed, when the Pursuer argued from the Rules Observed in the Pop- ish Inquisitions, to the Rules of the Law of Scotland, he show'd how much he was Straitned; And as even those won't Serve his turn, 'twas plain that what he plead was not agreeable to the Law of Scotland." The memorial concludes by rejecting the policy argument advanced for Haggart, that ~ubornationwas especially difiult to prove. There geems no doubt that, on the authorities, Hogg and Soutar had the better case. Nevertheless, the court adjudged them infamous, decerned them to pay Haggart £250 damages, and banished them from Scotland, on pain of transportation should they return. On the reasoning accepted by the bench, we are not informed. At any rate, the scope for proof of crime by testes szngulareshas expanded consider- ably since Hogg's case; the very specific types of nexus required by the canonists and implicit in cases such as treason and adultery with the same partner (to the spirit of which the decision in Hogg's case could 1,e understood to conform) were replaced 1,y far wider criteria.qD This, in brief, has been the story of the reception in Scotland of the doctrine prompted in part by canonist interpretation of a Jewish legal legend. But that canonist interpretation may we1 have theological roots, in the ui;e of testes szngularesin the New Testament itself. "
fix the cases of Antonius de By (1645) and Christianus Siamhurg (1681). Cf. Hubrr's HeedensdmgseRerhtfpelrd/~yt Bk.5 ch. 27 s.42, translated Gane 193Y:ii.295-6. 'This, the most telling foreign authority adducrd for Haggart (as the opposing nlenltrrial implies), is omitted from the memorial on his behalf, as recorded in the Book of Adjournal. ""ee \'andore 1974. qVC:h.4, .nlbm. CJL4lTER SIX
THE JEWISH BACKGROUND TO THE PRODIGAL SON: AIV UNRESOLVED PROBLEM*
Luke 15 And he said, There was a nlan who had two sons; and the younger of them said to his father, 'Father, give me the share of property that fds to me.' And he divided his living between them. Not many days later, the younger son gathered all he had and took his journey into a far country, and there he squandered his property in loose living. And when he had spent everything, a great farnine arose in that country, and he began to be in want. So he went and joined himself to one of the citizens of that countq; who sent him into his fields to feed swine. And he would gladly have fed on the pods that the swine ate; and no one gave him anything. But when he came to himself he said, 'How many of my father's hired servants have bread enough and to spare, but I perish here with hunger! I will arise and go to my father, and I will say to him, Father, I have sinned against heaven and before you; I am no longer worthy to be called your son; treat me as one of your hired servants.' And he arose and came to his father. But while he was yet at a distance, his father saw him and had compassion, and ran and embraced him and kissed him. And the son said to him, 'Father, I have sinned against heaven and before you; I am no longer worthy to be called your son.'
* I am most grateful to three audiences for their reactions to earlier versions of ths paper: the Ehrhardt seminar, University of Manchester (December 2003); thr XIIIth Biennial Confrrence of the Jewish Law Association, Boston (Au,pst 2004); and the Colloquium on The New Testament and Rabbinic Idterature, Katholieke Universitet Leuven and Institutum Iudaicum, January 2006. I have benefited particularly from valuable comments and bibliographicat suggestions in furthrr correspondence with Gerald Downing of Manchester and Leib Moscovitz of the Talmud Departmerlt of Bar-Ilan University. 112 chapter six
22 But the father said to his servants, ‘Bring quickly the best robe, and put it on him; and put a ring on his hand, and shoes on his feet; 23 and bring the fatted calf and kill it, and let us eat and make merry; 24 for this my son was dead, and is alive again; he was lost, and is found.’ And they began to make merry. 25 Now his elder son was in the eld; and as he came and drew near to the house, he heard music and dancing. 26 And he called one of the servants and asked what this meant. 27 And he said to him, ‘Your brother has come, and your father has killed the fatted calf, because he has received him safe and sound.’ 28 But he was angry and refused to go in. His father came out and entreated him, 29 but he answered his father, ‘Lo, these many years I have served you, and I never disobeyed your command; yet you never gave me a kid, that I might make merry with my friends. 30 But when this son of yours came, who has devoured your living with harlots, you killed for him the fatted calf!’ 31 And he said to him, ‘Son, you are always with me, and all that is mine is yours. 32 It was tting to make merry and be glad, for this your brother was dead, and is alive; he was lost, and is found.’ (RSV) Reading the parable without presuppositions leaves many issues open. What was the nature of the original division of the estate? What did each of the sons get and what did the father retain, if anything (so as to be able to organise a feast on the fatted calf on the prodigal’s return)? When the prodigal “came to himself ”, does this indicate “repentance” or just economic realism? When he decided to confess to his father, was he sincere, or was he calculating that he would be able to manipulate his father’s natural emotions? Is the father interested in the genuine- ness of his son’s apparent repentance? Is his use of the language of dead/alive, lost/found to be taken literally or metaphorically? When the prodigal returns, and the older son complains “Lo, these many years I have served you, and I never disobeyed your command; yet you never gave me a kid, that I might make merry with my friends”, did he not have his own share of the original division? Is he just jealous of the feast, or does he have other, material fears regarding the return of the prodigal? When the father responds: “Son, you are always with me, and all that is mine is yours”?, what kind of reassurance is he giving, and ought the older brother to be satis ed with it? When the father justi es the feast by saying: “It was tting to make merry and be glad, for this your brother was dead, and is alive; he was lost, and is found”, is the
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older son being rebuked, and what are the implications regarding the jiture relations between both father and older son and the two brothers? Does the prodigal take the place of the older brother in his father's affections? And who do the older and younger sons represent? We have here a veritable mklange of legal, Literary, theological and historical problems, all of which, E shall arcgue, benefit from the light whch can be cast from their Jewish background.' However, simply to proceed to an intopretutioHebraka begs a number of methodological problems, which must at least be acknowledged, even if they do not admit of easy answers. What is the relationship between the socio-legal content of the parable (concerning property relations within the family), its overt theological meaning (concerning forgiveness) and its figurative theological message (the referents of the figures of the father and his sons, and the message concerning their inter-relations)? In particular, which (if any) should we privilege in interpreting the meaning of the parable? My instinct is to proceed from the narrative itself to its overt theological meaning, and thence to its figurative theolopcal message. A parable, one may argue, has to be tran~parent,~in the sense that its narrative meal-ling must be unproblematic, since, if this were not the case, the audience would be distracted from its theological simcance.
' Pace Holgate 1999, who seeks to reduce the parable to the general categories of (an avowedly eclectic) Greco-Roman moral philosophy This, in my view, fails to do justice to many of the details of the parable. Even if Goulder 1989:11.612 is correct in claiming that it is a feature of Lukan parables that much of the detail does not count towards its "paraholir religious meaning" ("where his predecessors have on average three points out of four consistent with the allegory, Luke here has perhaps one out of four"), we still need to make sense of it in narrative terms. Holgate claims (at 250): "Two exegetical cruxes are decisively addressed by this moral reading, the unity of the parable and the nature of the younger sort's repentance", hut this is far from the only, or most persuasive, response to either of these problems; as the argument below indicates. Holgate claims dso that "the moral resonances of many other terms become evident and we are enabled to identi$ accurately the particular types of vice and \irtue being addressed." Yet such readings do not exclude, nor does Hoigate claim that they exclude, more culturally "local" account?. Even if we concede that thc parable could be read in terms of Greco-Koman morality (the range and understanding of which is so wide that one wonders what could not be so read), this proves nothing about its original author or audience. Howmr, the most ~i~gnificantcriticism of Holgate's account is that it vastly exaggerates the older brother's "meartness" (based in part on a misconception a? to his rights following the original division) and thr father's reaction to it. On this, see further inza, s.11. I do not mean by this that its the~lo~palmeaning must be transparent: on thr contrary, if it were. it would not succeed in initially "taking in" its addressee, as in some uses of parables in the Hebrew Bible, such as Nathan's parable, in criticising Dalid for the death of Uriah and the taking of Bathsheba: 2 Sam. 12: 1-7; see further *Jackson 1972a: 145-48. 114 chapter six
Thus, when we consider the details of the story of the prodigal son, we have to assume that the behaviour of the participants in this story (including, even, the ambiguities generated by their behaviour) would have been transparent to the audience of the parable, in terms of the social/legal institutions of the time.3 But whose time and institutions are we talking about? Is it (to simplify the matter) Jesus’ Jewish audience, to whom we may attribute knowledge of at least basic halakhic institutions, or is it Luke’s gentile audience, to whom we may attribute (apart from somewhat different social insti- tutions) a greater concern with the theological issues? New Testament scholarship has, indeed, agonised over this question, and diachronic answers—distinguishing between an original parable attributed to Jesus and Lukan (indeed, also sometimes post-Lukan) additions—are not lacking.4 Such a diachronic dif culty is paralleled on the Jewish side. Any interpretation of New Testament texts in terms of the halakhah has to be careful about the dating of the halakhic texts it uses: the rules found in Mishnaic texts are not necessarily to be read back to the time of Jesus; indeed, New Testament texts may sometimes contribute to our understanding of the history of the halakhic institutions themselves. The interaction of these issues—the choice of the controlling genre on the one hand, the diachronic analysis of both the halakhic and New Testament sources on the other—may be illustrated at the outset by highlighting one of the central interpretive issues: did the gift to the younger son exclude him from all future interest in his father’s estate, and did the father (despite his attempted reassurance to the older son at the end of the parable) either restore the younger son to his original position in the family or at least reintegrate him into the family as a (dependent) member with a claim for support? Any such view suggests a “strong” understanding of the overt theological meaning, in terms of sin, repentance and forgiveness, and may indicate a supersessionist gurative message. However, the classical halakhic sources, as we shall see, provide a quite different account of the effect of an “advance” to a son. But are these sources to be read back to the time of (even) Luke? There are, in fact, other Jewish sources which have been taken to indicate just such a disinheritance of a son, as a result of making
3 Derrett 1970:101 observes: “The Jewish public knew the law relating to the family intimately and no more familiar topic could have been chosen.” 4 E.g. infra, nn. 100, 132, 155.
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an advance. If we take the theological messages to control our reading, then we may indeed argue that the parable assists in our reconstruction of early halakhic history. But should we allow the theological message to control our reading of the socio-legal situation depicted in the narrative, or should we, rather, proceed in the opposite direction? To a degree, my “instinct . . . to proceed from the narrative itself to its overt theological meaning, and thence to its gurative theological message” may be justi ed as proceeding per notum ad ignotum—at least in the sense that the narrative is accorded the most explicit statement (even if its interpretation is not unproblematic) while the gurative theological message is left entirely to implication. Yet such a procedure cannot be applied rigidly. Ultimately, we must seek a reading which is coherent at all three levels, and if this demands revision of our initial understanding of the socio-legal implications of the narrative, so be it.
II
I commence my interpretatio hebraica of the narrative by emphasising an important point apparently unnoticed in the modern literature: the distinction between the property which the father had at the time of dividing his living before the departure of the prodigal, and later- acquired property. Jewish law does not, in principle, recognise a “will” in the modern sense: dispositions of one’s estate during one’s lifetime have to be made in the form of a gift,5 and applied to property in the possession of the donor at that time.6 Indeed, the Tosefta is quite explicit about this:
5 See Yaron 1960:32f., on M. B.B. 8:6, where a diathiki found on the body of a deceased person is held of no effect, not having been delivered to the donee. There is an exception for death-bed declarations (shekhiv mera): see Yaron, ibid., 61–88; Shilo 1973; Edrei 1997 and further literature there, at 2 n. 5. 6 Shilo 1973:519, 521f. notes the survival of the rule that “it is not possible for the legator to bequeath by way of mattenat bari any property except that which is then in his possession” into the classical commentary in the Shul4an Arukh (Rema, HM 257:7), together with a device, attested already in Resp. Rashba 3:118, which circumvents this restriction by creating a ctitious debt (for a huge sum well in excess of the total value of the estate, not payable until one hour before death), acknowledged (odita) by the testator. In the modern version drafted by Grunfeld 1987, the debt is secured by the following clause: “All the property that I have beneath heaven, that which I now possess or may hereafter acquire, . . . shall be mortgaged to secure the payment of these debts during my lifetime and after my death from the present day and forever.” See further
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Whoever assigns his goods to his son and then acquires other goods—any- thing not included in the ( rst) gift belongs to the heirs.7 It is, therefore, possible that the father acquired further property after the departure of the prodigal, and it is this which included the “fatted calf ”. However, we are not told how long the prodigal had been away; clearly, he had already spent his inheritance by the time the famine commenced,8 so that events from that point will have been quite rapid. It may not, then, be justi able to assume any signi cant acquisition of property while the prodigal was away. On the other hand, the prodigal is impliedly a young man at the time he departs for the “ esh pots”; his father may therefore not yet be elderly.9 There is thus a substantial chance of the acquisition of further property before his death, despite the assumption in some sources that it is common for one who disposes in his lifetime to be left impoverished.10 The Mishnah knows of two types of voluntary dispositions of prop- erty by a person in advance of his death.11 One is a deathbed gift,
Judah Dick, “Halacha and the Conventional Last Will and Testament”, http://jlaw. com/Articles/last_will_and_testament1.html. 7 T. Ket. 8:5. Zuckermandel does not read rishonah but attests the variant; Lieberman adopts it; see also Yaron 1960:55. Lieberman 1967:319 doubts that this can be quali ed by a deikne clause (to include after-acquired property). On deikne in other contexts, see Assis 1982:151f., to which Leib Moscovitz has kindly drawn my attention. 8 Bailey 1992:120 observes that “great famines do not happen over night.” 9 Cf. Bailey 1992:118. 10 Sir. 31:19, 23: “. . . give not power over thee while thou livest; and give not thy goods to another, lest thou repent and make supplication for them . . . in the time of thy death distribute thine inheritance” (quoted by Derrett 1970:105). See further Scott 1989:109–11, comparing (at 110) B.M. 75b: “Three cry out and are not answered . . . he who transfers his property to his children in his lifetime.” 11 Jewish sources give no support to a major plank in Bailey’s interpretation of the parable, that the prodigal, in seeking the advance, wishes his father dead: see Bailey 1983:161; idem, 1992:109, 112, 177 (attributing this motive also to the older son on the prodigal’s return); idem, 2003:95; see also Rohrbaugh 1997:150. Here and elsewhere, Bailey works from a methodologically questionable premise: that one should inter- pret both the parable and near contemporary Jewish sources against a construct of “Middle Eastern” custom heavily informed by medieval Arab Christian interpretation and contemporary Arab custom. His argument, 1992:112–114, that the younger son’s request was so socially unacceptable as to evoke absolute horror (based on Sir. 33:19–23 (see n. 10, supra) and B.M. 75b) takes no account of the Mishnah’s regulation of such advances, M. B.B. 8:7(b), quoted infra, at 120. At 127f., he accepts that “the evil set forth in the story is primarily in terms of broken relationships, not broken laws. There is no speci c legislation against a son requesting his inheritance from a relatively young healthy father.” Yet the degree of disparity Bailey’s argument implies between social acceptability and legal permissibility must prompt hesitation.
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a shekhiv mera, which does indeed take effect on death,12 and may be made only by a person who is genuinely on his deathbed (though later extended to other situations involving mortal peril).13 We may note that this is precisely the context in which the biblical narratives portray two of the three patriarchs as disposing of their property,14 though they do not concern themselves with the details of the institution as developed by the Rabbis, such as what happens if the “testator” recovers15 or if he fails to dispose of his entire estate.16 On the other hand, the Mishnah also knows of a gift made by a person not on his deathbed, where it is assumed that the donor is likely to live for a substantial period, and maintain an interest in his prop- erty, which will become that of his heir, in absolute terms, only on the donor’s death. This was called the matanat bari, the “gift of a healthy man”. It customarily used the formula that the gift is given “from today and after my death”. A similar formula is found in the Aramaic papyri from Elephantine,17 a fact which allows us to be reasonably con dent that we are dealing here with an institution which already existed in the time of the New Testament, and was not invented late in the tan- naitic period.18 The Mishnah describes the division of interests which such a gift generated in Baba Bathra 8:7(a):
12 M. B.B. 9:7; see further Yaron, supra n. 5. 13 See Yaron 1960:29–31. Maimonides, Laws of Gifts 8:2, de nes the required state of health of the testator thus: “a sick man whose entire body has been weakened and whose strength waned because of his sickness, so that he cannot walk outside and is con ned to bed, is called one critically ill.” Implicit in many of the rules is the assump- tion that the donor makes the gift on the assumption that he is not going to recover. See also Shilo 1973:XVI.519f. 14 Gen. 25:5–6 (Abraham); Jacob’s dispositions, discussed infra, 139, are preceded by the observation: “And when the time drew near that Israel must die . . .” (Gen. 47:29). Isaac’s blessing of Jacob and Esau does not fall within this pattern; Isaac is still alive when Jacob returns after 20 years in the household of Laban. On Bailey’s attempted identi cation of Jacob as the model for the prodigal, see infra, n. 112. 15 See further Yaron 1960:81–84. 16 See further Yaron 1960:67f., 85–89, arguing that this rule is not of tannaitic origin; Maimonides, Laws of Gifts 8:14–15. 17 See, e.g., Cowley 8, line 3: “Mahseiah son of Jedaniah . . . said to lady Mibta4iah his daughter: I gave you in my lifetime and at my death 1 house, land, of mine . . .”, in Cowley 1923:22. 18 Yaron 1961:78 maintains that “in my lifetime and at my death” here “has nothing to do with dispositions in contemplation of death”, and argues, at 1960:120–22, that it is quite distinct from the formula in a matanat bari, in that it is designed to protect the donee (of an immediate gift) from any possible claim from the family of the donor after the latter’s death. In technical terms, this may well be correct, but functionally the two expressions address a similar issue: whether the terms of a gift are altered by the death
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If a man assigned his goods to his sons he must write, ‘From today and after my death’. So R. Judah. R. Jose says: He need not do so. If a man assigned his goods to his son to be his after his death, the father cannot sell them since they are assigned to his son, and the son cannot sell them since they are in the father’s possession. If his father sold them, they are sold [only] until he dies; if the son sold them, the buyer has no claim on them until the father dies. The father may pluck up [the crop of a eld which he has assigned ] and give to eat to whom he will, and if he left anything already plucked up, it belongs to [all ] his heirs. (Danby) Put in contemporary terms, the father retains a life interest19 in the property, and the son has a future (vested)20 interest. In principle, the father cannot interfere with the future interest of the son, by making some use of the property which would prejudice that future interest; conversely, the son, though he can immediately dispose of his future interest, cannot do so to the prejudice of the life interest of the father. Of course, if the father and son agree to the complete disposal of property subject to this kind of gift, they can do so. The father can dispose outright of property in which he has only a life interest, if he makes an arrangement with the son to do so, perhaps on the basis of some material compensation. Equally, the son could dispose outright and immediately of his future interest, provided that he has the agree- ment of his father to release his life interest, again no doubt on the basis of some alternative arrangement. This is the nature of the interest given to the older son, when the father divided his estate before the prodigal’s departure: a classical matanat bari, in which the father retains a usufruct.21 Here, then, we have a clue to the concern of the older son regarding the fatted calf. If this forms part of the property which the father had
of the donor: in the matanat bari, they are (to the donee’s advantage); in the ordinary gift, they are not (again, to the donee’s advantage, though for different reasons). 19 Daube 1955, reprinted in Daube 2000:811, uses the equivalent Roman law terminology: a usufruct. 20 Since the grant cannot, in this period, be revoked: T. B.B. 8:10; Yaron 1960:51–55. Later, it could (as in a modern will). See further Grunfeld 1987:103, and his recom- mended text at 109. 21 Cf. Daube 2000:811; Derrett 1970:108f. Scott 1989:110f. recognises that this does not apply to the prodigal, but fails to apply it to the older son. This misunderstand- ing continues where, at 120, he argues that the older son’s response veri es that the younger son received a right of possession and disposition while the elder has only the right of possession.
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given to the older son as a matanat bari (rather than retained himself )22 the father was entitled to the income from such animals, but not to dispose of them to the prejudice of his son’s future interest.23 He has acted, as regards the fatted calf, as if he is still absolute owner, rather than simply having a life interest. The converse of this is the complaint of the older son that the father “never gave me a kid, that I might make merry with my friends”: this recognises that he could not unilaterally dispose of farm animals, to the prejudice of his father’s life interest.24 If this were all, however, we might indeed consider the older son to be rather mean-spirited, in common with much Christian interpretation.25 Is the older son not pleased to see that his brother is, after all, still alive? Does he too not wish to extend any welcome home? What is he afraid of ? Clearly, he regards the fatted calf as potentially (if I may so describe it) the thin end of the wedge. He fears that it is a harbinger of more to come, that the prodigal will indeed ingratiate himself with the father, to his own further detriment. This detriment does not, I think, consist primarily in prejudice to the future interest which the father has already given to the older son by the matanat bari or in the reduction of the father’s ultimate estate through the support accorded the prodigal after his return. Rather, the older brother fears that the prodigal will
22 Aliter, Derrett 1970:107f., who argues that “our father will by no means have prejudiced his own position, as the parable clearly hints. The way the servants run around him tells its own tale . . .” and therefore assumes that at the initial distribution, the father retained a third, and that the other two thirds were distributed in a pro- portion of two-thirds to the elder, one third to the younger son, following the law of primogeniture, so that the latter in fact got two-ninths. Daube 2000:814 also inclines to the view that the father had not in fact given away the rest of his property to the older son. But the text says that the father divided . Of course, it is also possible that the fatted calf was after-acquired property, in which event the older son has different reasons to resent this disposal of part of his expectation. 23 Aliter, Derrett 1970:114f., who regards the calf not as an independent item of property, but rather as part of the pro ts (in Roman law terms, the fructus) of the estate. He quotes in support the latter part of the Mishnah regarding the right of the father to pluck up and feed the produce to whomsoever he pleases. A crop would certainly be regarded as fructus, as indeed would be milk and farm animals produced by breeding on the farm. Whether the fatted calf fell into this latter category appears doubtful. Bailey 1992:116f. also cites this Mishnah in support for the view that the father was fully entitled to slaughter the calf (without recourse to the older son). 24 Holgate 1999:229 is thus wrong in arguing that the older brother shows himself to be even more (mean and) covetous than his younger brother when he failed to use what he has been given, not even offering hospitality to his friends. 25 See, e.g. Holgate 1999:229 (infra, n. 126).
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indeed share, as an heir, in any future property which the father may acquire between now and his death. Was such a fear well founded? The answer must reside in the nature of the original grant made by the father to the younger son. We are told that in reaction to the original request of the prodigal: “Father, give me the share of property that falls to me”, the latter “divided his living between them”. This cannot in this context mean that the father divided everything he then had, and gave a matanat bari in half to each of the two sons. This would have defeated the object of the prodigal, which was clearly to go away with his expectation, in a form in which he could dispose of it immediately (as, indeed, he did),26 and without the encumbrance of any life interest on the part of the father.27 The original gift to the prodigal, then, was not a matanat bari, but rather an absolute and unconditional gift. It was, in one sense, an “advance”, in that it anticipated the interest which the father no doubt intended to pass to his younger son on his death. But such an advance, according to the Mishnah, was not taken into account in any nal dis- tribution. The Mishnah already quoted continues in the following way (M. Baba Bathra 8:7(b)): If he left older sons and younger sons, the older sons may not care for themselves [out of the common inheritance] at the cost of the younger sons, nor may the younger sons claim maintenance at the cost of the older sons, but they all share alike. If the older sons married [and drew upon the common inheritance] the younger sons may marry [and draw in like manner]. If the younger sons said, ‘We will marry [on the same scale] as ye married [when our father was yet alive]’, they do not listen to them; for what their father had given them, he has given. A clear distinction is made here between marriage expenses incurred before the death of a father, and after. If a man leaves sons both above and below the age of majority, the older sons are, in effect, trustees for the interest of the younger sons. If the older sons draw on the assets of the estate in order to get married, they must allow the younger sons,
26 The common interpretation of “gathered it in” (v. 13) is that he sold off his portion of the land: see Scott 1989:113 n. 4; Rohrbaugh 1997:152; Bailey 2003:101; Holgate 1999:140, stressing the moral connotations of the expression. 27 Aliter, Derrett 1970:107, who maintains that the father did not give the prodigal his share with permission to alienate it or dispose of it absolutely, citing Jerusalem Talmud Ket. IV:8. But this makes little narrative sense, unless we assume that the prodigal was intended to invest the money and live off the income.
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in their turn, to draw on the estate to the same extent. However, if the older sons had married before the death of the father, and the latter had made advances to them in relation to their marriages, then “what their father had given them, he has given”. These are immediate and absolute inter vivos gifts, which are not taken into account in the nal distribution.28 Despite those advances, the older sons are entitled to share with the younger sons the assets which the father leaves on his death. Yaron takes the view that it was possible to insert within an advance a clause excluding from the ultimate inheritance, thus modifying the rule of M. B.B. 8:7. He writes: “In the absence of a duty of collation it would be important to know whether a certain gift was meant to be in addition to the son’s legal share or as compensation. In each case the wording of the disposition would have to be investigated, and if, as might happen, the wording was not clear, this would give rise to doubts and litigation.”29 But the text of the parable provides no clue (other than the subsequent behaviour of the participants in the story) as to whether this was assumed to have been done; indeed, there is no suggestion in the text that the “advance” was incorporated in a written document.30 In fact, the prodigal’s language on greeting his father (encouraged, no doubt, by the father’s affectionate embrace) may perhaps imply that he does retain a legal entitlement, which he is prepared to renounce on moral grounds: “I am no longer worthy ( ) to be called your son”, v. 21. On the other hand, the father’s response to the older son, “all that is mine is yours”,31 appears (unless we take it as a
28 Or, as Yaron 1960:42–44 puts it, there is no duty of collation of this gift with the ultimate inheritance. 29 Yaron 1960:45. 30 Yaron also maintains that disinheritance through an advance (which he terms “dismission”) is mentioned in a discussion of the law of usucaption: a son cannot take possession of the goods of his father by this institution (4azaqa), impliedly because he would become owner of them by inheritance anyway (M. B.B. 3:3), except in a case of “a son who has shared”: see Yaron 1960:43f., on T. B.B. 2:5 and B.B. 52a. Rengstorf 1967:25f. takes these sources out of context, as relating to ketsatsah. However, these texts, using the verb 4alaq, might well be taken to refer not to dismission but rather to the matanat bari. Indeed, Yaron himself argues against interpreting the verb (as does Maimonides, Laws of Pleading 13:9), as indicating leaving the household; rather, he points out, it “means both ‘take a share’ and ‘give a share’ (retention of part by the giver being a necessary implication).” 31 The view (supra n. 22) that despite the original division the father retained a large part for himself, and that it is to inheritance rights in this that the prodigal is ultimately restored, overlooks the fact that neither the matanat bari nor the advance to the prodigal encompassed after-acquired property.
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disingenuous reassurance) to presuppose just such a disinheritance of the prodigal. Some New Testament scholars, seeking to emphasise the prodigal’s (immediate) restoration32 are suf ciently embarrassed by this to seek to delete it as secondary, or impose on it some metaphorical meaning. Daube, too, maintains: “The words must be used in a loose sense, of the strong community of interests between the father and his elder son.”33 Such an interpretation must surely be a last resort. It does indeed sound as if the father is af rming the original disinheritance, contrary to the mishnaic law on advances. It is this issue of the ultimate distribution of the estate, taking account of after-acquired property, which the older son appears to be worried about. But is he justi ed in that concern? Whether or not the original advance to the younger son entailed a disinheritance, the older son has a grievance. In effect, he has been a partner with his father in the estate—a working farm—since the departure of the prodigal. The prodigal, indeed, had taken away a substantial part of the assets, and thus will have reduced signi cantly the income of both father and older son. Moreover, the older son has remained at home, helping the father further to develop the farm, and quite reasonably does not see himself as in effect working for the future bene t of his younger brother—or, at the very least, to support him.34 His expectation was surely that the younger brother would never return, having, in effect, been “seen off” by the advance. If, in fact, the prodigal will in future be supported by his own labour, as a “hired servant”, and he will not share in the distribution of his father’s residual estate, then the older brother may indeed be judged somewhat mean-spirited. His reaction suggests rather that he does fear that the prodigal will ultimately take such a share. Should we, then, take the reassurance attempted by his father as indicating that the prodigal has no such expectation, i.e. that the advance operated in effect as a disinheritance? Two arguments have been advanced by Daube in favour of such a view: the rst, based on the rabbinic interpretation of the succession to Abraham, the second (advanced only tentatively, though taken up more
32 And its gurative—supersessionist—meaning: see further infra, s.IV. 33 Daube 2000:814—despite arguing that the parable supports an early stage in Jew- ish law when advances did entail disinheritance. Apparently, Daube took the father’s remark to refer to the property subject to the matanat bari, rather than after-acquired property subject to the ultimate distribution. 34 Cf. Bailey 1992:125; Rohrbaugh 1997:159.
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substantially by some New Testament scholars) based on the institution of ketsatsah. I shall argue that the former is a far more solid basis for the argument than the latter. The Bible gives the following account of the succession to Abraham (Gen. 25:5–6): Abraham gave all he had to Isaac. But to the sons of his concubines35 Abraham gave gifts, and while he was still living he sent them away from his son Isaac, eastward to the east country. Clearly, these sons to whom Abraham gave advances were not expected to return and claim a share in the ultimate inheritance. The rabbinic commentary on this passage in Genesis Rabbah is cited by Daube36 in support of the view that the initial grant to the prodigal did (contrary to the Mishnaic law of advances)37 exclude the prodigal from any further interest in his father’s estate:38 In the days of Alexander of Macedon the Ishmaelites came to dispute the birthright with Israel . . . Said Alexander of Macedon to them: ‘Who is the plaintiff, and who the defendant?’ Said the Ishmaelites: ‘We are the claimants, and we base our claim on their own laws. It is written, But he shall acknowledge the rstborn, the son of the hated, etc. (Deut. XXI, 17), and Ishmael was the rstborn.’ Said Gebiah, the son of Kosem: ‘Your Majesty! Cannot a man do as he wishes to his sons?’ ‘Yes,’ replied he. ‘Then,’ pursued he, ‘surely it is written, And Abraham gave all that he had unto Isaac’ (Gen. XXV, 5).’ ‘But where is the deed of gift [to his other sons]?’39 He replied: ‘BUT UNTO THE SONS OF THE CONCUBINES, THAT ABRAHAM HAD, ABRAHAM GAVE GIFTS.’ Thereupon they departed in shame. According to this version of the Midrash, Alexander40 does indeed inquire about a wynb ˆyb qlyjç jwlyç rfç, a “document of sending
35 Mention having just been made of Keturah and her offspring by Abraham: Gen. 25:1–4. 36 Daube 2000:812f. 37 Daube 2000:811 acknowledges this, but suggests, at 814, as a means of disinheri- tance consistent with the Mishnah, precisely our combination of advance to the prodigal linked to a matanat bari to the older brother—the latter being designed to disinherit the younger not as a matter of law but rather of practice: “The elder also was given a share—so that on the father’s death there would be nothing left for the younger to inherit.” However, this analysis does not function as a disinheritance as fully as Daube maintains; he fails to take into account the possibility of after-acquired property. 38 Midrash Rabbah (LXI:7) on Gen. 25:6. Translation of Freedman 1939:II.545f. 39 Freedman 1939:II.546 n. 4 is in dif culties here, and accepts that this rendering is conjectural. See further n. 42, infra. 40 Daube 2000:812 attributes this to the Ishmaelites, sed quaere. Cf. Neusner 1985: II.337.
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away which divided the estate between his sons” (Daube), and infers that such a jwlyç rfç41 excluded the donee from any future interest in the inheritance. Yet at rst sight the Jewish response is inadequate. It merely cites Gen. 25:6, but the latter makes no mention of a rfç. Clearly, however, this version of the midrash—whose textual basis is doubted42—takes it as self-evident that Abraham’s gifts were indeed accompanied by such a rfç, despite the fact that it is not mentioned in the biblical text. How so? In rabbinic law, a gift required kinyan, a recognised form of acquisition, and the form of kinyan depended upon the nature of the property. A shtar was a form of kinyan for immovable property. The Midrash thus appears to imply that Abraham in fact gave other land, outside Canaan, to the Ishmaelites (an appropriate response in the context of the claim being made before Alexander) and used a kinyan shtar to do so. Even so, how do we justify the inference that there was in fact a shtar? There are two possible answers, which may indeed prove relevant to the dating of the story. One is that the midrash inferred shtar by a process of elimination: there are three possible modes of kinyan of land: kesef, shtar and 4azakah. Kesef is clearly inappropriate to a gift, and if the children of Keturah are being sent away to land elsewhere, there is (at least as yet) no 4azakah on their part. So there must have been a kinyan by shtar. A second possibility is rather stronger. The Amoraim debate whether money is a suf cient kinyan for land, or whether a deed is necessary; Rav (Kidd. 26a) adopts the latter view, at least where there is a custom of writing deeds. If the argument in the midrash presup- poses that view, then this points to a dating of the argument no earlier
41 Mirkin 1971:323 justi es the equation of jwlyç rfç with hntm rfç on the basis of the use of shillu4im (in the context of dowry) in 1 Kings 9:16. 42 The reading in t (the Yemenite MS) and d (the Venice edition)—the former, as Leib Moscovitz reminds me, based on the latter, which itself is frequently “hypercor- rected” to resolve dif culties. Theodor and Albeck 1965:666 adopt rwfqwl, on the basis of rwfq wl in [ (Kohut) and the k (München) and j (Epstein: Wien) MSS; cf. Sperber 1984:105, rejecting jwlyç rfç as an “internal gloss, with original word lost?” and noting rwfqzl in MS Vat. 60. Cf. Jastrow’s reading of ˆyfgl in Sanh. 91a, infra at n. 46). The meaning of Alexander’s question then becomes: if Isaac got a gift during his lifetime, who is the legatee (a question which is posed less evidently from the viewpoint of Jewish law), and the answer is that the children of Keturah also received (different) gifts before Abraham’s death (such unequal gifts during lifetime being permitted by the traditional halakhah: see commentary ad loc.). The version at Yalkut Shimoni 110 gives Alexander’s question as hrwfq ynbl ˆtwn awh ˆkyhw.
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than the Amoraic period, which is clearly too late to justify using it to interpret the parable.43 A stronger argument for the antiquity of disinheritance by making an advance may, however, be derived from a different, and probably earlier, version of this same debate44 before Alexander, found in the Babylonian Talmud, Sanh. 91a. This version is more explicit in taking the gifts to the children of Keturah as excluding them from any further inheritance, and at the same time provides a clue to the origins of the reading jwlyç rfç in the Genesis Rabbah version: On another occasion the Ishmaelites and the Ketureans came for a law- suit against the Jews before Alexander of Macedon. They pleaded thus: “Canaan belongs jointly to all of us, for it is written, Now these are the generations of Ishmael, Abraham’s son; and it is [further] written, And these are the generations of Isaac, Abraham’s son.” Thereupon Gebiha b. Pesisa . . . pleaded against them. “Whence do ye adduce your proof ?” asked he. “From the Torah,” they replied. “Then I too,” said he, “will bring you proof only from the Torah, for it is written, And Abraham gave all that he had unto Isaac. But unto the sons of the concubines which Abraham had, Abraham gave gifts: if a father made a bequest to his children in his lifetime and sent them away from each other, has one any claim upon the other? [Obviously not.]” hrba ˆtn hrbal rça yçglyph ynblw qjxyl wl rça lk ta hrba ˆtyw .tntm ? wlk hz l[ hzl çy (45 wlk) hz l[m hz rgyçw wyyjb wynbl ˆyfga ˆtnç ba ˆyfga (no doubt a corruption of ˆyfyg) is a hapax; Jastrow prefers to read ˆwfgl,46 a loan word for legatum. However, there are reasons to support the lectio dif cilior. A clear connection, both substantive and terminological,
43 Daube 2000:813 also adduces in this context P.Oxy I.131 (6th or 7th cent. C.E.). 44 Noted but not discussed by Yaron 1960:44 n. 1. 45 Omitted in version at Yalkut Shimoni Gen. 110. 46 Jastrow 1950, s.v. ˆyfga and ˆwfgl, citing Yalkut Shimoni Gen. 110 (ˆyyfygl) and Tanh. Noah 14 (erratum for 20): see Buber 1885; Townsend 1989:50f., where Abraham is said to be the rst mentioned in the Bible for old age, a wayfarer’s inn, (hntm whz) afgylbw afgylbw . . . ˆynm (then citing Gen. 25:6); see also Sperber 1984:104, adopting ˆwfgl, albeit viewing hntm whz in Tanh. Noah as an internal gloss (thereby attesting to the unfamiliarity of afgyl). The reading is not supported by Dikdukei Soferim IX.253 ad Sanh. 91a, where ˆyfga or ˆyfyga (cf. MS. Munich: ˆyfyg) is strongly supported. I am informed by Leib Moscovitz that ˆyfyga occurs also in MS Florence II 1 9–7, according to a computerised collation of Babylonian Talmud MSS made by Prof. Shamma Friedman. He notes also that the Yemenite MS of BT Sanhedrin in Yad Harav Herzog, considered the best MS of this tractate, has: [ˆyfg] twnt?m? ´tkç ba.
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between divorce and disinheritance, is evident already in the Hebrew Bible. In a polygamous society, that is hardly surprising. If a man divorces one of his wives, he may wish, and if not will certainly be under pressure from any co-wives, to disinherit the children of the divorcee, as the story of Hagar and Ishmael clearly shows.47 The story of Jepthah shows the terminological link: Judges 11 1 Now Jephthah the Gileadite was a mighty warrior, but he was the son of a harlot (hnwz hça ˆb). Gilead was the father of Jephthah. 2 And Gilead’s wife also bore him sons; and when his wife’s sons grew up, they thrust Jephthah out (wçrgyw), 2 and said to him, “You shall not inherit (ljnt al) in our father’s house; for you are the son of another woman.” 3 Then Jephthah ed from his brothers, and dwelt in the land of Tob; and worthless fellows collected round Jephthah, and went raiding with him. 4 After a time the Ammonites made war against Israel. 5 And when the Ammonites made war against Israel, the elders of Gilead went to bring Jephthah from the land of Tob; 6 and they said to Jephthah, “Come and be our leader, that we may ght with the Ammonites.” 7 But Jephthah said to the elders of Gilead, “Did you not hate ( tanç) me, and drive me out (ynwçrgtw) of my father’s house? Why have you come to me now when you are in trouble?” Here, the terminology of tanç and ynwçrgtw, both characteristic of divorce, is used in the context of disinheritance of a son. Both divorce and disinheritance, in the biblical period, were informal social institu- tions, based on the practice of expulsion.48 In the more institutionalised context of rabbinic thought, the link between them survived, and since divorce entailed a get, so too was disinheritance thought to entail use of a document. The lectio dif cilior ˆyfga in Sanh. 91a may thus explain
47 Thus, Sarah says to Abraham (Gen 21:10): “Cast out this slave and her son; for the son of this slave shall not be heir with my son, with Isaac.” No gifts are given by Abraham to Ishmael, but God promises in Gen 21:13: “And also of the son of the slave will I make a nation, because he is your seed.” Sperber 1984:104, in af rming ˆwfgl, viewed as a loan word (comparing in particular the form ˆwyfygl, found in the textual tradition of the Yalkut version, with , though conceding that the lat- ter is not found in Greek lexica), notes that readings such as ˆyfyg are “determined by the context which speeks (sic) of sending them away from one another.” But Judg. 11 (below) gives a clear biblical basis for the use of common terminology in divorce and disinheritance. 48 On the development of institutionalisation in this area, see Jackson 2007.
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the jwlyç rfç (also, apparently, a hapax) in the Midrash Rabbah version. And if this argument is correct, the fact that the connection between divorce and disinheritance goes back to the Hebrew Bible—along with the attribution of the rabbinic midrash to the period of Alexan- der—may well strengthen the argument that disinheritance by means of an advance represents a pre-mishnaic stage in the development of the halakhah. On the other hand, this is an aggadic source, carrying a highly signi cant ideological message, and neither the ˆyfga nor the rfç jwlyç appear elsewhere in contemporary (or, so far as I can see, later) sources—whether aggadic or halakhic. Daube mentions further institutions whereby “in certain periods and regions at least, contrary to orthodox Talmudic law, a Jewish father could transfer a portion of his goods to a son, thereby ending any further claims of the latter”.49 Of particular interest (though our ulti- mate judgment is sceptical) is the institution of qetsatsah, “severance”, whose “precise import”, Daube remarked in 1955, “has never been investigated”. Thus, we read in the Palestinian Talmud: When a man sold his ancestral estate (wtzwja hdç ta rkwm da hyhç h[çb), the members of his family brought casks, lled them with parched grain and nuts, and broke them before the children; and the children collected them and said: ‘X has been cut off from his estate (wtzwjam ynwlp xqn).’ When he reacquired his estate, they did the same, and said: ‘X has returned to his estate.’ R. Jose be R. Bun said: Also he who married a woman unworthy of him,—his relatives brought casks, lled them with parched grain and nuts, and broke them before the children; and the children collected them and said: ‘X has been cut off from his family.’ When he divorced her, they did the same, and said: ‘X has returned to his family.’50 Daube’s hint was taken up by H.K. Rengstorf and Kenneth Bailey, both of whom argue (in different ways) for its relevance to the parable. Rengstorf saw qetsatsah as a public ceremony of severance of personal and material relations with the clan (Sippe) with whom the individual had come into “incurable con ict”,51 and accepted that it was designed
49 Daube 2000:813. His other suggestion is a vow interdicting the son from the use of the property (qonam)—but there is no suggestion of any such vow in the parable. 50 Y. Kidd. 1.5 (translation of Yaron 1960:42); cf. Y. Ket. 2:10, Ket. 28b. 51 Rengstorf 1967:21–27, 70. See also Derrett 1970:115f., reviewing Rengstorf ’s argument but nding it inapplicable to the parable, on the grounds that there is no suggestion in the latter that the prodigal was originally penalised or ostracised by his family.
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particularly for its deterrent52 and pedagogic53 effect in relation to behaviour which was permitted but socially disapproved.54 He was particularly impressed by the reversibility of the institution, which he saw as re ected in the “re-investiture” of the prodigal son,55 and his “complete restitution . . . to his former position of heir, including all rights and duties connected therewith.”56 However, as Yaron argues,57 there is no statement that ketsatsah entails disinheritance; indeed, reacquisition of the estate is regarded as the normal/desirable sequel. Moreover, there is no parallel in the ketsatsah ceremony to the restoration to the son of his former garment58 and the giving of the ring59 and shoes, all of
52 Rengstorf 1967:23. 53 Rengstorf 1967:24, referring to the role of children in the ceremony. 54 Alienation of family property or taking an unsuitable wife: see further the rabbinic texts quoted in the text, below. The most recent study of ketsatsah (without reference to the parable), is that of Katz 2004:I.122–149, focussing on the Yerushalmi tradition, discussed infra at nn. 59–60. Katz too concludes (see esp. 130f., and cf. on Gulak at 123f.) that it was an early social custom, with no halakhic signi cance for property relations: see further infra, nn. 66, 68. I am indebted to Leib Moscovitz for drawing my attention to Katz’s thesis, and making this section of it available to me. 55 Rengstorf 1967:71: “This restitution is—just like the 3 eh whose consequences it cancels out—an authentic legal act . . .” (Engl. Summary), 27–51. However, at 23 n. 46 he (correctly) stresses the informal (“pre-institutional”) nature of the institution, and at 26 characterises it as a usage with legal consequences, rather than a Rechtsakt in the strict sense. 56 Rengstorf 1967:71; cf. 50f. 57 Yaron 1960:42. In B.T. Ket. 28b, in the context of a disapproved marriage, the “cutting off” is explained as a taboo against intermarriage with the offspring of such a marriage (cf. Rengstorf 1967:23 n. 49, on T. Kidd. 1.4): the members of the family declare: “Our brother So-and-so has married a woman who is not worthy of him, and we are afraid lest his descendants will be united with our descendants. Come and take for yourselves a sign for future generations, that his descendants shall not be united with our descendants.” 58 Rengstorf 1967:40–44, taking the in (Luke 15:22) to be temporal rather than qualitative: the cloth/robe which he formerly wore (denoting his status in the household); moreover, he takes the , like the ring, to be a symbol of authority, with royal associations (at 43 n. 103, comparing 1 Macc. 6:14f.). On the association with Joseph’s “coat of many colours”, see infra, 141. 59 Rengstorf 1967:29–39, viewed as a symbol of authority. Cf. Derrett’s view of the ring’s signi cance, infra n. 81. However, this only indicates a tension in Rengstorf ’s argu- ment. His basic position appears to be that the reversal of ketsatsah restores the heir to his former position (as heir): see, e.g., at 50f. That former position, in the parable, was not however originally one of pre-eminence. Yet Rengstorf seems to agree with Derrett that the giving of the ring does signify the creation of a status of pre-eminence. The same tension does not affect Derrett’s argument, since he does not seek to connect the ring in the parable with a reversal of ketsatsah.
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which are stressed by Rengstorf as indicating the prodigal’s complete (and immediate) restoration to his position as heir.60 A somewhat different argument is advanced by Bailey, who is impressed by the fact that the version of the tradition at Midrash Rab- bah on Ruth 4:7 (vii.11) relates the institution to the particular offence of selling land to gentiles: [A] Formerly they used to acquire the title to a purchase by means of a shoe or sandal, as it is said, A MAN DREW OFF HIS SHOE, but later they acquired the title by means of kezazah. [B] What is kezazah? R. Jose b. Abin answered: If a man sold his eld to a Gentile, his relatives used to bring barrels full of parched corn and nuts and break them open in the presence of children, and the children would gather them and proclaim, ‘So-and-so is cut off from his inheritance.’ If it was returned to him, they used to say, ‘So-and-so has returned to his inheritance.’ [C] And likewise if a man married a woman who was not tting for him, his relatives used to bring barrels full of parched corn and nuts and break them open in the presence of children, and the children would gather them and proclaim ‘So-and-so is lost to his family.’ When he divorced her, they used to say, ‘So-and-so has returned to his family.’ [D]At a still later period they again acquired a title with a shoe or a sandal, A MAN DREW OFF HIS SHOE AND GAVE IT TO HIS NEIGHBOUR, and at a still later period they acquired title by payment of money, by a deed or by 4azakah. twyhl wrzj wl[n çya lç rmanç ldnsbw l[nmb ˆynwq wyh hnwçarb [A] hxxqb ˆynwq wyh ywgl whdç rkwm awhç ym lk ˆyba rb yswy rùùa hxxq ˆyd whmw [B] twqwnyth ynpb ˆyrbçmw yzwgaw twylq twalm twybj ˆyaybm wybwrq rzj yrmwa wyh hryzjh wtzwjam ynwlp xqn ˆyrmwaw ˆyfqlm twqwnythw wtzwjal ynwlp twybj ˆyaybm ybwrqh wyh wl tngwh hnyaç hça açwnç ym lk k [C] ˆyrmwaw ˆyfqlm twqwnythw twqwnyth ynpl ˆyrbwçw yzwgaw twylq twalm wtjpçml ynwlp rzj ˆyrmwa wyh hçrg wtjpçmm ynwlp dwba wh[rl ˆtnw wl[n çya lç ldnsbw l[nmb ˆynwq twyhl wrzj [D] hqzjbw rfçbw skb ynwq twyhl wrzj
Nevertheless, Bailey argues that the prodigal was certainly not “cut off” when he left, since at that stage he had not disposed of any ancestral
60 In particular, Rengstorf 1967:71 (cf. 28f., 45–50) argues that the shoes were “a legal symbol . . . connected with the right of tenure”. But this is based only on the reference to a shoe ceremony in Midrash Ruth (below), which (a) is presented as form of acquisi- tion historically distinct from ketsatsah, and (b) refers to immediate purchase, which is remote from the supposed restoration (by gift) of rights in future property.
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land; rather, this form of social disapproval is relevant to the anticipated reaction to his return,61 when it becomes known that this is what he has done. However, if the prodigal was originally given his share in the land, but then “gathered it in”62 before he went on his travels, he impliedly sold it before his departure—to local people.63 The passage, moreover, presents substantial problems. It is internally inconsistent in the account it gives of the temporal place of ketsatsah, whether preceding or succeeding the ceremony involving a shoe.64 Moreover, the answer given by R. Jose b. Abin to the question what is ketsatsah hardly presents it as a mode of kinyan,65 which the context requires, but rather as a humiliation ceremony after the disapproved act (of sale or marriage) has been performed (by the normal means). If it was once a form of kinyan, its character is obscure,66 nor is it related in the Jerusalem Talmud to alienation to a gentile.67
61 Bailey 1983:167f. This reaction, for Bailey, is not simply that of the older son, but of the village, whose feelings the father seeks later to placate by the feast: see 169, 186f. At 1992:122 he is more ambivalent as to whether ketsatsah takes place before the prodigal’s departure or is anticipated on his return, re ecting his acknowledgement of the priority of the Yerushalmi ketsatsah traditions (infra, n. 65). On the parallel Yerushalmi and Ruth Rabbah traditions regarding the repentant disinheritor/marryer, see Katz 2004:145. 62 Luke 15:13; see n. 26, supra. 63 As indeed Bailey accepts elsewhere: 1992:121. 64 Derived from Ruth 4:7: “Now this was the custom in former times in Israel concern- ing redeeming and concerning exchanging; to con rm a transaction a man took off his shoe, and gave it to his neighbor; and this was the manner of attesting in Israel.” 65 The sequence of modes in Midrash Ruth (supra) is found also in Y. Kidd. 1:5: skb twyhl wrzj . . . hxxqb ynwq twyhl wrzj . . . l[nmh tpylçb ynwq wyh hnwçarb hqzjbw rfçbw See further Gulak 1929:41f., dating this to the Second Commonwealth period. See also Albeck 1973:II.219: “The Jerusalem Talmud (Kid. 1:5) indicates other modes of kinyan with regard to immovables, one based on the removal of a shoe as mentioned in Ruth 4:7, and the other being kezazah, without any indication of the period when those modes were practiced.” See further infra, n. 66. 66 The nearest we get is an observation of R. Judah at the bottom of Y. Kidd. 5.1 (16a), immediately before the passage here quoted, that the goel in Ruth 4 surrenders his rights to Boaz by ketsatsah. The meaning is far from clear, despite the explanation that follows. Though the root is not itself found in Ruth, the theme of “cutting off” is present in 4:10, where Boaz rejoices that, as a result of the redemption, trky alw wyja [m tmh ç. Katz 2004:124–128, 130, 132, now argues strongly against the historicity of any connection with kinyan (and particularly against the views of Alon and Lifshitz that it originally referred to a form of kinyan by oral agreement). For his view of its original function, see infra, n. 68. 67 Acknowledged by Bailey 1992:121f., who accepts the Jerusalem Talmud’s version (citing here Y. Ket. 2:10) as earlier, though he argues that disposal of the proceeds of sale of the land to gentiles “adds insult to injury”.
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One might in any event be particularly hesitant to rely on Midrash Rabbah to interpret the parable, on grounds of dating. There is, indeed, an obscure reference to the institution in a tannaitic text: T. Ket. 3:3 says that one accepts the evidence of a man who says: “We ate at the ketsatsah of so-and-so.”68 But Bailey now adduces a text found at Qumran, the Testament of Kahat, dating from the late 2nd cent. b.c.e.69 As he quotes it: And now, my sons, be watchful of your inheritance (attwryb)70 that has been bequeathed to you, which your fathers gave you. Do not give your inheritance ( ˆwkttwry) to gentiles ( ˆyarknl), nor your heritage ( ˆwktwnsja) to violent men ( ˆyalykl), lest you be regarded as humiliated in their eyes, and foolish, and they trample upon you, for they will come to dwell among you and become your masters.71 Bailey takes this out of context and seeks to relate it directly to ketsatsah. But the continuation (“Therefore, hold fast to the word of Jacob, your father, and be strong in the Judgements of Abraham, and in the Right- eousness of Levi and myself ”) indicates that “inheritance” is here being used metaphorically,72 rather than in Midrash Ruth’s literal sense of “If a
68 For the text and discussion, see Lieberman 1967a:63; idem, 1967:220f. The text is traditionally regarded as concerning the reliability of such a claim made by a minor. It is noteworthy that no other source suggests that ketsatsah involves some ceremonial eating: at most, the children may eat the nuts they collected. Rengstorf, 1967:23 n. 46, comments that even the Tosefta may re ect a long-forgotten memory, and in arguing that the institution may go back to the time of Jesus, he observes (23 n. 47) that the Gospel of Luke retains many memories of Palestinian practices. Katz 2004:125, 128–30, now plausibly reconstructs the origins of the institution, on the basis of T. Ket. 3:3 and Ket. 28b, as concerning the eligibility of a family in the Second Commonwealth period (citing also Sperber 1978:152 n. 32 and 174) to eat terumah: they were barred from so doing if they practiced disinheritance and disapproved marriages, and social disapproval was made manifest by the ketsatsah ceremony—of which an adult could give evidence even if he had participated in it as a child or if his father had told him of it. He notes also at 148f. a variant in the Leningrad Firkovitz MS of Ket. 28b, where children are not involved in the ritual shouting of the formula, but rather the barrel is broken in the public road: thus what in the Yerushalmi is an internal family status is transmuted in the Babli into a public status. 69 See the discussion in Puech 2001:257–82. 70 attwry is described by Puech 2001:273, and earlier, in his preliminary edition, 1991–92:39, as “décalqué de l’hébreu hç(w)ry.” The Aramaic text is generally viewed as based on a Hebrew original. 71 Fragment 1, Col. 1, ll. 4–7. Translation of Eisenman and Wise 1992:150, quoted by Bailey 2003:102 (though omitting the clause “nor your heritage to violent men”). See also Puech’s edition and French translation. 72 The clause omitted by Bailey is rendered “or your heritage to assimilation” by Cook 1993:206.
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man sold his eld to a Gentile”, with which Bailey seeks to associate it. Indeed, Puech takes ˆwkttwry to refer to the priesthood—which should not be alienated to ( Jewish) “strangers”.73 The same view is taken by Cook, who takes the text as a whole as dealing with “the importance of keeping the priesthood and its duties and prerogatives pure”.74 But though these considerations undermine any argument that we can read the interpretation of Midrash Ruth back to the Second Commonwealth period, the metaphor does support the view that alienation of one’s inheritance outside the family, to ( Jewish) “strangers”, was regarded as entailing disgrace—the message of the ketsatsah passages in the Palestin- ian Talmud. Bailey may indeed be correct in interpreting the feast as an attempt by the father to placate his fellow-villagers, in the light of such disgrace.75 But this takes us no further on the principal issue: whether the original grant to the prodigal involved his disinheritance. In short, there is a possible argument, based primarily on the midrash in Sanh. 91a, for an earlier stage of the halakhah in which an advance to a son involved his disinheritance from any nal distribution.76 The parable may, on this view, provide supporting evidence of such an earlier stage in the development of the halakhah77—provided, at least, that such an interpretation is coherent with its theological meaning and gurative message. I do not, of course, seek to suggest that Luke or his audience were familiar with the (later) halakhic texts or the law in any technical sense, any more than a modern non-legal audience would be. But certain aspects of the law are so basic to social life that familiarity with them may be assumed. One is the difference between property subject to a gift (matanat bari ) and after-acquired property. In the absence of the modern conception of a will,78 this will have been taken for granted. Moreover, it will have been clear to the audience, not least from the
73 Puech 2001:273. 74 Cook 1993:207, rendering the clause “do not give your inheritance to strangers”. 75 Supra n. 61, followed by Rohrbaugh 1997:157f., 161. 76 Such an disinheritance could be effected by other means—konam, or, on Yaron’s argument (supra, 121) an explicit term in the advance—but there is no hint in the parable that any such means were used. 77 Nor can we exclude the possibility that the social knowledge presupposed by the parable is that of a form of Jewish society which followed a divergent set of norms. 78 Often described as “ambulatory”, in that it covers all property in the estate at the time of death, and thus property acquired after the date of the will itself.
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