Durham E-Theses Codes as Constitution: The Development of the Biblical Law-Codes from Monarchy to Theocracy HU, HUIPING How to cite: HU, HUIPING (2009) Codes as Constitution: The Development of the Biblical Law-Codes from Monarchy to Theocracy , Durham theses, Durham University. Available at Durham E-Theses Online: http://etheses.dur.ac.uk/133/ Use policy The full-text may be used and/or reproduced, and given to third parties in any format or medium, without prior permission or charge, for personal research or study, educational, or not-for-prot purposes provided that: • a full bibliographic reference is made to the original source • a link is made to the metadata record in Durham E-Theses • the full-text is not changed in any way The full-text must not be sold in any format or medium without the formal permission of the copyright holders. Please consult the full Durham E-Theses policy for further details. Academic Support Oce, Durham University, University Oce, Old Elvet, Durham DH1 3HP e-mail: [email protected] Tel: +44 0191 334 6107 http://etheses.dur.ac.uk 2 Abstract As a result of influence from assyriology and the sociology of law, the Hebrew legal texts have commonly been categorised in recent study as ancient law- codes analogous to the cuneiform codes recovered from the ancient Near East. This has not led, however, to a more constructive and decisive stage in the study of biblical law, and conceptual and methodological problems have been imported from each field. The current interpretative models of the texts, in terms either of legislative, or of non-legislative functions, fail to provide a coherent explanation for their formation. This thesis is to contrive a fair and neutral approach that can embrace different types of law on the one hand, and make allowance for legal development on the other. Abandoning more casual modern presuppositions about the character of law and of legal systems, the analysis takes as its starting-point the basic concept of law universally accepted by scholars of jurisprudence, and shifts the debate from the old question of whether these ancient codes were “law” or “not law” to questions about why and how these ancient law-codes could have been formulated and functioned in their contemporary societies. The analysis also looks beyond the cuneiform law-codes and concepts of kingship in the ancient Near East, to other early laws developed in different cultures, such as Athens and imperial China. Against such a historical and conceptual background, the conceptual leap reflected in the Torah from common monarchical law to the constitution of theocracy is examined within the changing socio-historical contexts of Israel itself, from the period of the monarchy through to the Exile. While the initial development of the Hebrew law is thus reconstructed in accord with the general position of monarchical law in ancient empires, the legal breakthrough made in the Torah will be associated with exilic Israel, which transformed the concept of law and the socio-political system for the purpose of reconstituting the nation. i Acknowledgements For someone from East Asia, doing a PhD in Classical Hebrew Law in Britain has been a culture-cross adventure and a journey of self-rediscovery and reconstruction. Without all kinds of support that I received over years, this thesis could not have been so well-developed and completed. I would like to express my great gratitude to those known and unknown donors, who, via the organisation of Asia Opportunity, provided me with all the financial means for my overseas studies, first for my M.Th in biblical translation and exegesis in Singapore (Trinity Theological College) and then a PhD in Durham University. I am always in their debt and wish that the completion of this thesis would bring them some joy and satisfaction. My unreserved gratitude also undoubtedly goes to my supervisor, Dr. Stuart Weeks, for his constant encouraging and challenging throughout my PhD studies. His broad knowledge of the Hebrew literature and his familiarity with the ancient Near Eastern literature enabled him to point out the direction of my studies in the first place. His insightful suggestions and constructive critics were indispensable in the shaping of my thesis over the years. His tireless emphasis on conceptual coherence and literary precision forced me to constantly refine my thesis, and whereby its potentials were realised. As a foreign student, I especially appreciate his openness and tolerance when we disagreed with each other, which allowed and inspired me to build a thesis in present form. I would also like to say thanks to my Akkadian instructor, Dr Johannes Haubold, who commented on those chapters regarding the cuneiform law-codes in Mesopotamia, and impressed me with his instant responses and detailed notes. Thanks also to Prof. Robert Hayward, for kindly discussing with me certain issues I raised and for advising me how to accommodate different points of view in my thesis. Thanks also to Dr Carol Harrison and Prof. Loren Stuckenbruck, for their understanding and guidance in the time when I needed special support from the Department. ii My thanks cannot end without mentioning those legal friends, for enriching my understanding of modern western power structures and legal systems. My special thanks are particularly reserved for Robert Ricks, who clarified certain legal concepts for me as an expert in early English law and inspired me to a sophisticated appreciation of the ancient laws. Thanks also to my friends, Keith, John, David, Joan and Alison, for kindly commenting on my English. Finally, a dearest thank to my parents and my extended family for their tolerance of my absence and for always being there for me. I am grateful that they never worried me with their problems, but tried their best to support me all the way through. To them, my work is dedicated. Hui-Ping Hu 2009, Durham iii Table of Contents Abstract……………………………………………………………………………….i Acknowledgements…………………………………………………………………..ii Table of Contents…………………………………………………………………….iv Abbreviations……………………………………………………………………….viii Main Text………………………………………………………………………..1-241 Introduction……………………………………………………………………….…1 A. The Imposition of Modern Concept of Law ………………………….….2 B. The Trouble with Oversimplified Generalisations ………………………9 C. Shifting the Agenda……………………………………………………..10 Chapter One: The Hebrew Law-Codes in Recent Scholarship………………13 A. Source Criticism and Historical Reading………………………………..14 B. Form Criticism and Comparative Study ………………………………..16 1. Form versus Function…………………………………………………17 2. Genre versus Content…………………………………………………20 3. Text in Context…………………………………………………….….21 C. The Legislative Approach……………………………………………….23 1. The Priority of Religious Rules………………………………………24 2. Theological Transformation of the Hebrew Codes…………………..25 3. Religious Elements Complementing State Law………………………27 D. The Non-Legislative Approach………………………………………….30 1. Law-Codes as a Second Source of Law……………………………….31 2. From Wisdom to Law–the Formation of the CC……………………...34 3. Law-Codes–Mistaking Scribal Advice for Law………………………38 E. Legal Breakthrough–from Monarchy to Theocracy……………………..42 1. The Concept of Law…………………………………………………...42 2. Law-Codes in their Contexts………………………………………….43 3. From Monarchical Code to Constitutional Law………………………44 iv Chapter Two: The Character of the Cuneiform Codes………………………..45 A. The Literary Characteristics of the Cuneiform Codes…………………..46 1. Resemblances between the Codes and Omens………………………..47 2. The Criteria of Law……………………………………………………49 3. Definition, Source and Function of the Codes………………………...51 4. The Literary Formula of the Rules…………………………………….53 B. Legislative Interpretations……………………………………………….58 1. Royal Enactment of the Codes………………………………………..58 2. Law and State Reorganisation………………...……………………...61 3. The Imposition of Sanctions in the Codes…………………………….64 4. The Development of Law and the Legal System……………………...67 5. Cuneiform Rules in Context…………………………………………..72 C. Conclusion……………………………………………………………...74 Chapter Three: King, Law and Society in the ancient East………………..…75 A. Conceptual Relations between King and Gods…………………………75 1. The Concept of Kingship in Mesopotamia…………………………..76 2. Kingship Reflected in the Law-Codes……………………………….79 3. The King’s Role as a Legislator and Judge…………………………..82 B. From Individual Rules to Codified Laws……………………………….85 1. The Designation of the Codes………………………………………...85 2. The Source of the Codification……………………………………….86 3. The Process of Codification…………………………………………..92 C. The Position of Law in a Monarchical System………………………….94 1. The Position of Law in Relation to Kingship………………………...94 2. The Function of Monarchical Law…………………………………...96 3. The Judge’s Manner and Court Record……………………………..100 4. The Validity of the Monarchical Law……………………………….102 Conclusion……………………………………………………………105 Chapter Four: The Codification of Hebrew Law………………………………106 A. Contact between Mesopotamia and Palestine………………………….107 B. Internal Legal Development in Israel…………………………………..113 C. Judean Locus of the Formation………………………………………...116 D. The Codification of the CL (Exod 20:1 – 23:33)………………………118 1. The mishpatim (21.1-23.19)…………………………………………118 v 2. The Altar Laws (20:22-26)………………………………………….121 3. The Decalogue (Exod 20:2-17)……………………………………..123 4. The Promulgation of the CL………………………………………...126 E. Legal Leap from Monarchical to Constitutional Law………………….129 1. King, Law and Reform………………………………………………130 2. DL in the Book of Deuteronomy…………………………………….133 3. Legal Breakthrough in the Torah…………………………………….136