THE ORIGIN OF THE APODICTIC LAW
AN OVERLOOKED SOURCE
BY
M. WEINFELD
Jerusalem
It was A. ALT1) who was the first to make the clearcutdistinction
between the apodictic and the casuisticstyle in ancient IsraeliteLaw.
According to his opinion the origin of the casuistic law has to be
sought in the Canaanitemilieu while the apodicticone is the product
of the genuine Israeliteheritage.As it alwayshappenswith a discovery
so also in this case later observations revealed some inaccuraciesin
his theory. Thus investigations of the last decade showed that the
particularityof the IsraeliteLaw is not the commandingstyle as such,
because this is also found in the ancientNear EasternLaw Corpora2)
though one must admit, the casuistic formulation is there the predominant one. What is unique in Israelite law is the formulationof
the commandin secondperson
singularor pluralwhich is not attestedin
any of the ancient Near Eastern law codes 3). Another corrective of
Alt's theory was the one concerning the participialformulation(e.g.
n1r nln .*. nr) which ALT classifiedwithin the apodictic category
whereas later studies rightly stressedits casuistic character4). zDnis
indeed formally overlapping the casuistic Win Vt
Ztt (cf. e.g. Lev.
xxiv 17) and the punishmentappendedto the participialformulation
is also characteristicof the casuisticstyle in contrastto the apodictic
one (sec. person)which generallydoes not have a punitive clause.
The refinementof the definition of apodictic law brought about a
change in the search for the Sitz im Leben of this Law. A. ALTas
1)
2)
"Die Urspriinge des israelitischenRechts", KleineSchriftenI 1959, 278-332.
Cf. R. YARON, "Forms in the Laws of Eshnuna", RIDA 9 (1962), 145 ff.;
R. A. F. MACKENZIE,"The Formal Aspect of Ancient Near Eastern Law", The
Seedof Wisdom:Essays in Honourof T. J. Meek, 1964, 31-44, and cf. too Sh. M.
Studiesin the Book of the Covenantin the Light of CuneiformandBiblicalLaw,
SVT 18 (1970), 112 ff.
PAUL,
3) Cf. especially E. GERSTENBERGER,Wesen und Herkunft des "Apodiktischen
Rechts",1965.
4) This however does not lessen the cultic-national characterof these formula-
tions, see WEINFELD,Deuteronomy, p. 147 n. 7.
Vetus Testamentum,Vol XXIII, fasc. I
64
M. WEINFELD
MOWINCKEL
before him 1) and VON RAD 2) afterwards looked for the
actual circumstancesof the promulgationof this particularlaw. These
scholars saw the birth place of the apodictic law in the cult and viz.
the covenantal festival at Shechem (ALT, VON RAD) or the New
Year Festival in Jerusalem (MOWINCKEL)
respectively. The study of
the Israelitelaw in the last two decades,however, has been concerned
with the nature of the Gattung i.e. the literarytype of the apodictic
law rather than with the real circumstancesof the promulgation of
this law which could only be guessed but hardlyproven. The problem
as posed nowadays is: what is the literary pattern with which the
legal command, formulatedin the second person, can be identified?
Referringto this question, two literarytypes have been pointed at as
the possible origin of the apodictic pattern:the vassal treaty stipulation 3) or the exhortationof the wise 4). Both solutions, however, are
unsatisfactorysince they do not involve legal ordinances as such,
which is what we are concernedwith in dealing with apodictic law.
The vassal treaty stipulationsbelong to the political and not to the
legal milieu while the wisdom exhortationis of homiletic moralizing
natureand is thereforedifferentfrom law, which is coercive.
In order to find the origin of the apodictic style (as definedabove)
we should look for a literarytype, the contents of which is law and
which is also stylisticallyidentical with the Biblical apodictic law.
Such type indeed exists in the literatureof the ancient Near Eastern
peoples,but was unfortunatelyoverlookedby Old Testamentscholars.
I mean the literarytype called "Instructions",known to us from the
Hittite Kingdom which excelledin legal formalism.These instructions
constitute legal ordinances promulgated by the Hittite King and
imposed by oath on his servantsand officials5). Here we find instructions for military personnel6), court officers7), border comman1) S. MOWINCKEL,Le Dicalogue, 1927.
2)
3)
Problemdes Hexateuch,1937.
G. VONRAD, Das formgeschichtliche
Cf. SH. M. PAUL, op. cit., pp. 119 ff. for the various scholars siding with this
opinion, including PAULhimself.
4) Cf. E. GERSTEBERGER,
op. cit.
5) Cf. E. VONSCHULER,Hethitische Dienstanweisungen,AfO, Beiheft 10, 1957 and
the discussion on pp. 1 ff. for the nature of the "instructions". See also, E. VON
SCHULER,
"Staatsvertrageund Dokumente hethitischen Rechts", NeuereHethiterforschung,Historia, Einzelschriften 7 (1964), 34 ff.
6) Cf. Sedat ALP,"Military Instructions of the Hittite King Tudhaliya IV(?)",
Turk TARIHKurumu, Belleten11 (1947), pp. 388 ff.
fur hohereHof- undStaats7) Cf. E. VON SCHULER, HethitischeDienstanweisungen
"Hof- und Haremsbeamte,AfO, Beih. 10 (1957), pp. 8-35, compare E. WEIDNER,
Erlasse assyrischer Konige aus dem 2. Jahrtausend v. Chr.", AfO 17 (1954-56)
THE ORIGIN OF THE APODITIC LAW
65
ders 1), temple officials 2) and even for the whole people 3). These
"instructions"are called ibiul 4), a term designatingtreaty-pactand
corresponding to Akkadian riksu and Hebrew bryt5). The oath
accompanying the pledge of the various officials, is called lingais,
which correspondsto Akkadianmdmituand Hebrew 'hl 6). The most
significantfact for our purpose is that these instructionsare mostly
addressedin second person and accompaniedby a pledge of the officials styled in the firstperson (plural)7). Thus a dialogue relationship
is createdbetween the King who imposes the commandmentsand his
subjectswho pledge the acceptanceandthe fulfillmentof the commandments.
The analogywith Biblicalapodicticlaw is striking.Like the Hittite
instructions Biblical law contains commandments formulated in
second person imposed by covenant and oath and accepted by a
pp. 257 if. which are styled in the third person as usually are the royal edicts in
Mesopotamia see e.g.: F. R. KRAUS,Ein Edikt desKonigsAmmi-SaduqavonBabylon,
1958; compare the Nuzi edict in PFEIFFER-SPEISER,One HundredSelectedNuZi
Texts, 1936, AASOR 16 No. 51. Royal decrees (simdattarrim)in letters, referring
to private transactions,however, are styled in second person.
1) E. VON SCHULER, Hethitische Dienstanweisungen II. Bel Madgalti, pp. 41 ff.
Cf. A. GOETZE,ANET2, pp. 210-211.
2) STURTEVANT-BECHTEL, A Hittite Chrestomathy, 1935, pp. 127-174 (text,
transliteration and translation); A GOETZE,ANET2, pp. 207-210. Compare also
the "Instructions for Palace Personnel" in ANET2 p. 207. For priestly instruc-
tions in Assyria (in the third person), cf. E. EBELING, Stiftungen und Vorschriftenfiur
Assyrische Tempel, Deutsche Akad. d. Wissenschaften zu Berlin, Inst. f. Orientforsch. 23 (1954) pp. 23 ff.
3) Cf. the instruction in connection with the funerary rituals H. OTTEN,
Hethitische Totenrituale, 1958, p. 104, ABot 56. (See line 9 there: SA GIDIM HI.A
is-hi--u-l, "the pact/covenant concerning the ghosts") which ends up with: "Now,
you, people of Hatti have thus sw[orn]". Legal arrangementsin connection with
funerary and burial rites are known to us especially from various cultic associations
of the Hellenistic period (cf. e.g. W. ERICHSEN,
Die SatZungen einer dgyptischen
aus
der
lines
Kultgenossenschrift
Ptolemderzeit, 1959,
23-25). On funerary associations
from
the
14-th
cent.
B.C.
the
down
to
third
(mrzh)
century C.E., compare B. POR179
ff.
TEN, Archivesfrom Elephantine, 1968, pp.
4) Cf. SCHULER,Heth. Dienstanweis.
to Akkadian riksu and Hittite iShiul see
5) For bryt as "bond" corresponding
in
article
36
LeSonenu (1972) p. 86 f.
my
6) For the hendiadys riksu u mdmitu in Akkadian, iosiul lingai-in Hittite and
bryt w'lh, comp. above article.
7) See e.g. the opening clause of the "Instructions for the court officials"
(SCHULER, Dienstanweis, p. 8) and cf. E. VON SCHULER, "Die Wiirdentragereide des
Arnuwanda", Orientalia 25 (1956), pp. 209 ff. Compare also the oath of Ashapala:
H. OTTEN, "Die Eidesleistung des Ashapala", Revue Hittite et Asiatique 67 (1960),
pp. 121 ff. For similar oaths albeit preserved in fragments cf. H. OTTEN, Mitteilun-
gen d. deutsch.Oriental.Gesel.94 (1963), pp. 3 ff.
5
66
M. WEINFELD
pledge of the people (Exod. xix 7-8, xxiv 3-8; Deut. xxvi 17, Jos. xxiv
24). Like the Hittite instructionsthe law in Israel is called bryt1) and
it containslikewiseordinancesfrom differentspheres:cultic, socialand
even military2). It is true, the Hittite sources have separatesets of
instructionsfor each one of these spheres,while Biblicallaw tends to
amalgamatethem 3). It should be realizedhowever, that in the most
ancient Biblical law code i.e. the Covenant Code, one is still able to
discern three differentsections: civil (xxi 1 - xxii 16), social (xxii 17-
xxiii 9) and cultic law (xxiii 10 - 19) 4). The section of civil law re-
1) Cf. Deut. iv 13, xxxiii 9, 1 Kings xi 11, 2 Kings xvii 15, Isa. xxviv 5, Ps. 1 16,
ciii 18, cv 10. The fact that an ancient source like Deut. xxxiii 9-10 mentions in one
breath bryt, 'mrh, mSpt and twrh indicates that the congruence of "law" and
"covenant" is of very old times. This explains such phrasesas swhbryt(Judg. ii 20,
Ps. cxi 9) "to command a covenant" which certainlycannot be applied to a mutual
"Gesetz und Gnade", ZAW 79 (1967), 18-35.
agreement. Cf. E. KUTSCH,
2) Cf. the military laws in Deuteronomy: xx 1-9; xxi 10-14, xxiii 10-15, xxiv 5.
3) It should be said however that in contradistinction to the BabylonianAssyrian law which is purely of civil nature the Hittite law code contains also laws
of the sacred sphere similar to Biblical law cf. ?? 166-170, 173, 187-196, 199-200.
Die HethitischenGesetze1959). ?? 166-67 deal with mixed sowing,
(cf. FRIEDRICH
the prohibition of which is encountered in Lev. xix 19; ? 170 deals with sorcery
which is also prohibited in Biblical law; ? 173 concerns disobedience towards
higher authorities: King, commander and master. The punishment is a very
severe one: destruction of the house (for pupulli-see
FRIEDRICH,op. cit. p. 111)
which apparently means the extermination of the whole family (see below);
decapitation or "going to the pot" (dUg UTIOL = Akkadian diqdru)which means
"burying alive in a pot" (cf. E. NEUFELD, The Hittite laws, 1951, p. 186 and
FRIEDRICH, op. cit. p. 111). This corresponds
to the "Instructions
for Temple
Officials"(cf. ANET2, pp. 207-8, ?? 2-3) which says that when a slave arouses the
anger of his lord or when anyone arouses the anger of a god his whole family is to
be destroyed (cf. also the "Instructions for Palace Personnel", ANET2, p. 207, II;
"The edict of Telepinus", STURTEVANT-BECHTEL,
Hittite Chrestomathy, 183-193).
The punishment of the rebels Korah, Dathan and Abiram in Num. xvi 32-33 is
close in nature to "going to the pot": "and the earth opened its mouth and
swallowed them up with their households... and all their possessions. They went
down alive into Sheol..." On the other hand, the execution of Achan by stoning
"him, his children his oxen... sheep with all that belonged to him" (Jos. vii 24)
reminds us of the punishment described in the "Instructions for Temple officials"
where it says" "Does he (the god) not take revenge on his wife, his children, his
cattle (and) sheep together with his crop" (I, 35 if.). The laws dealing with sexual
aberrations(?? 187 if.) are similar to the laws in Lev. xviii and xx 10 ff (two almost
identical series the one styled in casuistic form and the other in apodictic). Like
the Priestly legislator who defines such acts asIlY1 ,lJl ll (xviii 26,27,29,30;
xx 13) (comp. TOn n)n 'I1T xviii 17, 23; xx 12,14, 15, 17)so the Hittite law definse
the aberrations as burkelwhich is translated by J. FRIEDRICH
(Die Hethitischen
as
"Greuel/Greueltat".
Gesetle, 1959, p. 113)
4)
Cf. B. LANDSBERGER,"Die babylonischen Termini fur Gesetz und Recht",
SymbolaeKoschaker,1939
p. 223 who compares these three types of law to Akkadian
dinu(= civil law), kibsu(= moral law, literally "way" [of behaviour]) and parsu
(= cultic ordinances).
THE ORIGIN OF THE APODICTIC LAW
67
presents the common genre of casuistic law prevalent in the Mesopotamian law corpora, the social and cultic section however which are
formulated in apodictic style overlap formally the "instructions"
especially those promulgated for the court officials (LI3. MES.SAG),
border commanders (bel madgalti) and temple officials. Some of the
laws of the apodictic sections in the Covenant Code are even identical
in contents with the Hittite instructions. Thus for example in a
passage 1) instructing the border commanders to judge honestly the
cases brought before them 2) we read:
"If anyone brings a suit..3) the commander of the border guards
shall judge it properly (SIG5-in)and set him right. If the case is too
large 4) (comprehensive), he shall send it to the King 5). He should
not decide it in favour of a superior, a brother, his wife of his friend.
Nobody should take bribes (masgan)6). He must not makea just case
unjust, he must not make an unjust case just 7). Do whatever is right.
Whenever you arrive at a town8) call all the people of the town
together. For him who has a suit (DI-NAM) judge it and set him right.
1) Cf. E. VON SCHULER,Hethit. Dienstanweisungen,p. 47, Kol. III A, 21-37.
2) On military officers functioning as judges cf. also S. ALP, "Military instructions of the Hittite King Tudhalya IV", Belleten11(1947) p. 392,11. 32 ff. For a
similar procedure in Israel comp. Exod. xviii 21 and Deut. i 15-16. As in the
Hittite instructions (SCHULER,ibid, p. 47, III A, 9-10) so in Israel the official judges
cooperated with the local elders, cf. Deut. xxi 2 f and see M. WEINFELD,"Elder",
vol. 6, col. 578-79.
EncyclopediaJudaica,
3) DI-NU-ma u-da-i, compare hbj' dbr in an identical context (see below) in
Exod. xviii 19, 22.
is related to Suwant-"full, big". This may be learned from a parallel
4) Suwattari
injunction in the edict of Mursilis (FRIEDRICH,Der alte Orient 24, 3 p. 20, KBo III,
3 iii 27-33) where it says that whenever a judicial case occurs, the priest should
investigate it but if the case is "too big" (Sal-li-er-Zi) it should be sent to the king.
11.32 ff.
5) The same injunctions occur in S. ALP, "Military Instructions",
These instructions are to be compared with Exod. xviii 22: "a major case (hdbr
hgdl) they will bring to you, and a minor case they will judge by themselves",
comp. Deut. i 17b.
6) Cf. FRIEDRICH, HWb, p. 138.
7) As translated by GOETZE, ANET2,
p. 211. The literal meaning is: "to
elevate (iaraZgiiabh-) the lower case or to lower (katterahh-) the elevated", compare
S. ALP, "MilitaryInstructions", 11.34-35.J. FRIEDRICH(HethitischesElementarbuch2
II p. 70) compares the phrase to the Greek: T-rv zTTo ,oyov xpesiLo7xOLtiv "to
make the worse appear the better cause" (cf. e.g. PLATO,Apologia 18b). The
phrase in its Greek formulation actually appears in the Bible: "Woe to those who
call evil good and good evil... who justify the wicked for bribery and take away
the righteousness of the righteous" (Isa. v 20-23 and comp. Prov. xxiv 23 ('mr
Ir' .sdjk 'th). For "good and evil" in the judicial sense, see W. MALCOLMCLARK,
JBL 88 (1969) p. 266 f.
8) Compare Samuel who goes round from town to town in order to judge the
people (1 Sam. vii 15-17).
68
M. WEINFELD
If a man's slave or a man's slave girl or a widowed woman has a suit,
judge it for them and set them right... A foreigner who settles (finds
shelter)1) in the land 2) provide him fully 3) with seeds, cattle and
sheep".
Although the passage opens with the third person singular the
continuation formulated in the second person (compare the opening
of the LJ.MES.SAG instructions)shows that the situation is that of a
dialogue characteristic of the apodictic law 4). What strikes us most is
the similarity between this passage and the section about impartiality
and honest dealing with the personae miserabiles of the Covenant
Code, which, like the quoted instructions, seems to be addressed to the
judge and the leader:
"You shall neither side with the mighty 5) to do wrong ... nor shall
you favour a poor man(or a superior)6) in his cause . You shall not
wrest the judgement of your poor in his cause. Keep far from a false
case, do not execute (lit. kill) the innocent and the righteous for I will
not justify the wrongdoer 7). Do not take bribes... You shall not
oppress a stranger (Compare xxii:20-21: "a stranger.. a widow or
orphan")".
The religious and ceremonial commands in the Covenant Code, on
the other hand, find their parallels in the "Hittite instructions for
temple officials" 8). Here we find commands about the observance of
the festivals (?? 4, 9) 9), proper handling of the holy gifts and sacrifices
1) For ar.;anant-(find shelter) cf. FRIEDRICH,HWVb,p. 34.
2) Stylistically close to the priestly phrase: wkjjgwrgr b'rskm.
cf. SCHULER, Heth. Dienstanweis.p. 57 iii a 37.
3) For iShueenit
The
shift
third person to second person is found very often in Biblical
from
4)
law (cf. e.g. Exod. xxi 12-13, 14, 22-23). In view of the fact that a similar phenomenon is attested in a Hittite homogenic legal collection, one should be warned
against reconstructing differentsources on the basis of the change of address. For
the shift in the Hittite instructions see Bel-Madgaltiii a 24 (SCHULER,
ibid., p. 45)
and the commentary there.
5) Following the translationof TheTorahJPS, 1962.
6) gdl could be easily miswritten to wdl, hence the common emendation wgdl1'
thdr which is supported by Lev. xix 15 and may now be corroborated by the
Hittite parallel.
7) LXX reads: "and you shall not justify the wrongdoer" which might be the
original reading, comp. Deut. xxv 1, Isa. v 23, Prov. xvii 15, xxiv 23-24. The
emended text brings us closer to the Hittite parallel.
206 ff.
8) Cf. STURTEVANT-BECHTEL, op. cit. (p. 65, note 2), GOETZE, ANET1,
On the affinities of these instructions to the priestly commandments about the
custody of the Tabernaclesee J. MILGROM,JAOS 90 (1970), pp. 204-209.
9) Within these commandments we find the warning not to postpone the
performance of the festive rites because "of a journey (KASKAL) or some other
business" (? 9) which brings to mind the law in Num. ix 9-14.
THE ORIGIN OF THE APODICTIC LAW
69
(?? 6-8)1), which is to be compared with Ex. xxiii 14-19, but the
most instructive parallel is the injunction about not delaying the
delivery of the holy donations (? 18 comp. ? 5) which also occurs in
the Covenant Code 6nnn xKb
1aTn 'lnan (Ex. xxii 28) 2). It is true,
these instructions are given for the temple officers 3) and not for
the people, typologically however they are of the same character as
the Biblical laws. It seems even possible that similar sets of instructions
were promulgated for the Hittite population though these have not
been preserved 4).
Apodictic Style in the 4ssyrian Milieu
Legal ordinances imposed by the King and formulated in the
second person are also attested in the Assyrian literature. Thus we
find Zakutu, Esarhaddon's mother, imposing obligations upon the
officials and the citizens of Assur (mdremdt Asur) in connection with
the succession of Assurbanipal 5). As in the Hittite instructions for
the officials so also in this case the pledge of the officials to keep the
obligations has been found and there is even a identity in formulation
between the Hittite version of the fealty oath and the Assyrian one 6).
Admittedly these are concerned with legal ordinances of judicialsocial nature like the "Hittite instructions". However some other
Mesopotamian documents reflect the "dialogue" type likewise in the
civil sphere. Thus, for example, a legal document of the Achaemenid
1) Especially instructive from the Biblical point of view are the instructions:
1) about the leftovers of the sacrificialfood (? 6): "if you cannot finish it.... keep
on eating for three days", compare Lev. vii 16-18, xix 5-8. 2) making substitutions
for sacrificial animals (? 7, compare Lev. xxvii 32-33). 3)not to put the sacrificial
animal under yoke (? 7, comp. Deut. xv 19).
in this connection is istantai- which equals
2) The Hittite verb appearing
Akkadian ubturu(cf. FRIEDRICH,HWb, p. 91), a verb identical with Hebrew 'hr.
The law in Deut. xxiii 22 1' t'r lslmw is different since it does not concern the
delay of the holy gift as such but rather the delay in paying the vow.
3) The same kind of materialis actually found in the Biblical Priestly Code.
4) For instructions for the people in connection with funerary rites cf. above
p. 65, n. 3.
6) L. WATERMAN, RoyalCorrespondence
of theAssyrian Empire(= ABL), no. 1239.
From the point of view of contents these are identical with the stipulations in the
Esarhaddon treaties (D. J. WISEMAN, The Vasal Treaties of Esarhaddon, Iraq 20
(1958), pp. 1 ff). The latter, however, were concluded with the Median vassals and
not with the Assyrian citizens and therefore are of internationalnature.
8) Cf. WATERMAN,op. cit. no. 1105. Similarly there has been preserved the
pledge of the vassals of Esarhaddon (WISEMAN, Vassal Treaties 11.494-512)
formulated in the first person plural. The wording of this pledge is very similar
to that of ABL no. 1105, cf. WISEMAN,op. cit. p. 9 and see also SCHULER,Heth.
Dienstanweis. pp. 5 ff.
70
M. WEINFELD
period published recently constitutesa judicial arrangementin the
form of a dialogue between the representativesof the Eanna Temple
in Uruk and the craftsmen1). From the letters of the Neo-Assyrian
period,on the other hand,we learnthat professionalsof various types
hadto takeoaths in a ceremonywhich was subjectto a fixedprocedure,
and performed on auspicious dates 2). In some of these letters we
readabout gatheringthe whole people for the oath: "the people, their
sons and their wives" 3), which reminds us of the gatheringsat the
covenantal ceremonies in the book of Deuteronomy xxix 9-10,
xxxi 12) 4). It is true, some of the Assyrian ceremonies were performed
in connection with political events (succession etc.), but there is no
justificationfor seeing all the ade ceremoniesagainsta political background (sovereign-vasalsrelationship).TheAssyrianslike the Hittites
bound 5) their officials of palace6) and temple 7) by oath, imposing
upon them sets of instructions.
Furthermore,it seems that the Assyriancustom of instructingthe
people in mattersof serving God and King 8) which has its analogies
in the Torah instructionin Israel9) is also to be seen as based on a
formal oath. The officialswho took care of that instruction (sibittu)
were the the (w)akliand the sdpiri,the King's officersand overseers,
who were also known as being in chargeof craftsmenas well as other
administrativeand military units 10). Since their offices were of an
executivecharacter,the "instruction"in questioncannotbe conceived
as a pure academicone but has to be understoodin an authoritative
manner,that is to say, that they had to see to it that the people imple1) Cf. D. B. WEISBERG,Guild StructureandPoliticalAllegiancein Early Achaemenid Mesopotamia,1967. For a thorough revision of text 1, cf. J. RENGER,JAOS91
(1971) pp. 494 ff.
2) ABL 33: 13-14 (cf. collation of S. PARPOLA,Lettersfrom Assyrian Scholars,
AOAT 5/1, 1970, no. 2): tupSarre,bare,maSmafe,ase, ddgilissure,"the scribes, the
haruspices, priests, physicians and augurs".
3) Cf. ABL 202:rev. 10-13: sdbe mdrefunu u asdatiSunuand compare in connection with the treaty ceremonies of Assurbanipal (Vassal Treaties of Esarhaddon 1.5;
M. STRECK,AssurbanipalII, p. 4i: 18.
4) Cf. my book Deuteronomyand the Deuteronomic School, 1972 p. 101.
5) Cf. the term riksa rakdsu in WEIDNER, AfO 17 (1954-56), pp. 257 ff (passim).
6) WEIDNER,
ibid.
Stiftungen (see p. 64, n. 7).
in
the
Cf.
8)
Sargon inscriptions: ana sbuz sibitti palah ili u Sarri akli Sdpiri
uma"irSunfti "in order to teach them (the natives in Assyria) the teaching of
serving God and King, I sent overseers and officers" (for sibittu cf. S. SH. PAUL,
JBL 88 (1969), pp. 73-74.
9) Cf. especially 2 Chr. xvii 7-9 and see WEINFELD, Deuteronomyp. 163.
10) Cf. CAD A I, pp. 278-79.
7)
WEIDNER,
THE ORIGIN
OF THE A'PODICTIC LAW
71
ment the instructions.This, of course could be guaranteedonly by a
pledge or an oath. In a similar manner law in ancient Israel was
imposed upon the people through the elders and judges or in their
presence (Ex. xix 7, Deut. xxix 9, Jos. xxiv 1, 2 Kgs xxiii 1-2). In one
instancewe are even told explicitly,that the King's officialswere made
responsiblefor disseminatingthe law. Jehoshaphatsent out his officers
from the capital to instruct the people of the province (2 Chr. xvii
7 ff) 1). The involvement of royal officialsin 'Torah'instructionmay
be clearlyseen in Lam. ii 9: "Her King and her officersare among the
nations, there is no more Torah". As suggested by us elsewhere2)
the Deuteronomic Code has been most probably promulgated by
scribes and officialsof Hezekian-Josianiccourts, and might actually
representthe instructionsof those Kings. However though the law
was enforcedby royalauthorityit could not be put into effectwithout
a pledge takenby the people which is best exemplifiedby the covenant
of Josiah (2 Kgs. xxiii 1-3) 3).
Law and covenant in Israel are then bound together from the
beginning and the second person address prevailing in the Israelite
law can only be explainedagainst the dialogue relationshipdescribed
above.
Though the Covenant of Moses seems to have given eternal
authorityto Israelitelaw, it neverthelesshad to be renewedfrom time
to time. Joshua is told to have promulgatedlaw at the covenant of
Shechem4)(Jos. xxiv 25), Josiahmakes the peoplecommitthemselves
in covenant "to observe the laws of God" (2 Kgs xxii 1-3),Nehemiah
with his congregationmake a pact ('nnh) which is a pledge "to walk
in God's law given by Moses" (Neh. x 30), and by the same token
the Qumran sect enters the oath "to do.. as was commanded by
Moses" (1 Q S 1 3) which is accompaniedby a ceremonyof Blessings
and Curseslike that in Deut xxvii. It seems that whenever circumstances changed and legal norms had to be reformulated,the people
gathered in order to commit themselves on the basis of the new
1) Verse 8 enumerating the Levites might be a Chronistic addition, while
verses 7 and 9 seem to be authentic, cf. W. RUDOLPH,Chronikbucher,
HAT pp.
250-51.
2) Cf. my book Deuteronomy,
pp. 163 ff.
also
the
3) Compare
pledge described in 2 Chr. xv 10-15 which might reflect a
tradition.
genuine
4) We cannot discuss within the present framework the problem of the
Shechem covenant vs. Sinai covenant (cf. M.J. BIN-GORION (BERDITCHEVSKY),
Sinai undGariZim1928) which is of course basic in the history of law promulgation
in ancient Israel and deserves a separatetreatment.
72
M. WEINFELD
promulgatedlaw 1), although in principleit was still consideredthe
MosaicLaw.
in the Periodof the
and the Way of theirPromulgation
Legal Ordinances
SecondTemple
Though periodical commitments on the observance of the Law
were prevalent-as indicated-during all generations, there is a
significantdifferencebetween the commitmentsin premonarchicand
monarchicIsrael on the one hand and those of the post-exilic time on
the other. The formerwere done by imposition upon the nation as a
whole while the latterwere binding by virtue of a voluntaryact by a
specific group (cf. Neh. x) 2). Religion and cult at the time of the
Second Temple were detachedfrom the state and transformedto the
various sects and associations3). This causeda change in formulating
1) However, it is equally possible that the renewal of the covenant was done
periodically: yearly (MOWINCKEL)or every seven years (Deut. xxxi 9-12, so ALT).
The annual renewal of covenant is already attested in Old-Babylonian times, cf.
e.g. in the letter of king Anam of Uruk to Sinmuballitfrom Babylon: u fa sa-at-ti-su
ni-if ilim u-te-ed-di-fu"and every year the oath is renewed" (A. FALKENSTEIN,
Bagd. Mitteil. 2 (1963), iv 19, p. 54). For the annual renewal of the Greek treaties
xar' vLoCauT6v
8s 6pXOv&voaveoiaOac
cf. THUCYDIDES,
"and the
v, 18, 9: TrOV
oath to be renewed yearly".
One has to admit that these covenants are of political nature and therefore
cannot serve as a complete analogy for our purpose. We find, however, an
annual renewal of the covenant in the "Manual of Discipline" which may reflect
an ancient custom. It is true, the annual renewal of the contract was common in
Die Satgungeneineragyptischen
the Hellenistic corporations (cf. e.g. W. ERICHSEN,
aus
der
1959, 11.4-5, compare H. SOTTAS,Papyrus
PtolomderZeit
Kultgenossenschaft
but
de
no.
an unpublished Egyptian guild contract of
29:4)
Demotiques Lille, 1921,
the Persian period (ca. 390-78 B.C.) also mentions one year in the opening clause
(ROBERTS,SKEAT,NOCK, Harvard Theolog. Review 29 (1936), pp. 84-85). The need
to renew the pact every year does not imply a weakness in its validity, on the
contrary, the people renewing it stress its validity year by year, cf. also E. SEIDL,
PtolomdischeRechtsgeschichte,
1962, p. 154. The constitution of the Qumran sect
and its affinities to contemporaneous laws of guilds and associations will be the
subject of a separatestudy of mine.
2) Cf. expecially Neh. x 29 according to which "everyone who had seperated
himself from the "peoples of the lands" might join the pact. The authorization
given to Ezra (vii 12-26) to implement the law of his God (vv. 14, 25-26) is not to
be seen as an imposition of the Persianking but rather an act of formal recognition
of the rules of the congregation of the bnjhgwlh.Only the members of the congregation were subject to the punishments described in Ezra vii 26, which were
sanctionized by the king. In accordance with this, Ezra is not to be considered as
but as
a secretaryof royal stature as suggested by E. SCHAEDER
(Esra derSchreiber)
the secretary of the jewish congregation empowered by the Persian king. For a
sound critic of SCHAEDER'S position,
Ezra NehemiahIII 1965, pp. 117 ff.
3)
Cf. below.
cf. S. MOWINCKEL,Sttdien gu dem Buche
THE ORIGIN
OF THE APODICTIC
LAW
73
legal ordinances. Whereas previously the imperative style (second
person) was the predominant one, at the time of the Second Temple
the first person plural style prevailed, in other words, a shift occurred
in "the dialogue", the main speaker is now the commanded one and
not the commander. The regulations of the renewed congregation and
especially those concerned with organizing the cultic community (Neh.
x) 1) are indeed styled in the first person plural:
"We will not give our daughters..." (v. 31); "we will not buy from
them on Sabbath" (v. 32); "we will forego the seventh year" (v. 32);
"we establish over us commandments" (v. 33); "we cast the lots with
respect to the wood offering" (v. 35). It is true we also find this kind
of general consent in the ancient covenants as: "we will do and obey"
(Ex. xxiv 3, 7, comp. xix 8), but there the approval is given on the
laws in general, the laws themselves were styled as apodictic commands. Here in the Nehemiah pact the rules themselves are styled in
the form of an approval. The positive obligations occuring in this
document mainly concern the maintenance of the cultic establishment
as: the contribution of money (third of a shekel) 2) for the supply of
sacrifices etc., supplying the wood required for the altar fire, delivering
the various kinds of offerings to the temple etc. What had been
previously the concern of the state viz. the King (cf. e.g. Ezek. xlv 17a,
comp. 2 Chr. xxxi 3) becomes here the concern of the Congregation 3).
This type of congregation ordinance is, in fact, known to us from the
various cult associations in the Hellenistic period4) and as an
instructive parallel we cite some rules of the Egyptian cultic guilds of
1) This document actually constitutes the ordinance of the new congregation
("the big assembly" knsthgdwlh)concentrating itself around the Jerusalemtemple.
The set of rules promulgated here are vital for the life of the new community
from the social as well as the cultic aspects and contain side by side ancient law and
new regulations. For a thorough evaluation of this source cf. S. MOWINCKEL,
StudienIII, 1965, pp. 142 ff.
2) This has nothing to do with the law in Exod. xxx 11-16, cf. especially
J. LIVER, KaufmannJubilee Volume 1960, pp. 54 ff (Hebrew) and HThR 56 (1963),
pp. 173 ff. Cf. also MOWINCKEL,ibid, III, pp. 147 ff.
3) The contributions of the royal court for this purpose were limited (Ezra vii
22) and apparently not on a permanent basis, cf. RUDOLPH,Esra und Nehemia
HAT, ad loc.
4) Cf. E. ZIEBARTH,Das Griechische Vereinswesen, 1896; F. POLAND, Geschichte
des griechischen Vereinswesen, 1909; M. SAN NICOLO, Agyptisches Vereinswesen rur
Zeit der Ptolomder und Rdmer, I 1913, II 1915; idem, "Vereinsgerichtsbarkeit im
hellenistischen Agypten", EPITYMBION, Heinrich Swoboda Dargebracht,
1927, pp. 255-299; A. E. R. BOAK, "The Organization of Guilds in Greco-Roman
Egypt", Transactions of the American Philological Association 68 (1937), pp. 212-220;
E. SEIDL, PtolomaiischeRechtsgeschichte1962, pp. 152-56 and the bibliography there.
74
M. WEINFELD
the Ptolemaic period. Thus we read there 1): "we shall convene 2) in
the temple on the festivals (hb.w) and the processions(h'.w)" 3); "we
shall pay (lit. fill up) our silver (units)...4) beer, wine etc. 5); "we
shall make the burnt offerings (kll.w) and the libations (wdn.w)"6).
In one of these ordinanceswe find, in connection with signing the
contract,htm7) which is identicalwith Hebrew nnnand occurs in the
Nehemiah pact (Neh. x 1).
Though the citations are from cultic guilds of the Hellenistic
period,thereis evidencefor similarordinancesin the Persianperiod 8).
Furthermore,there is evidence about cultic associationsin Babylonia
which was unfortunatelyoverlooked by the scholars dealing with
ancient associations.Thus we often read in the cuneiformsources of
the neo-Babylonianperiodaboutthe kinitu/kinastu9),"the collegium"
of a temple or the puhrum("assembly")of the temple city 10). The
term kinistuwhich is derived from the Aramaic sn=3 ("assembly")
also lies behind the term (n arrn)nlO3 11). In the light of the
Babylonian evidence it becomes now clear that the nt03, which
according to Rabbinic tradition was the representativebody of the
Jews at the time of Ezra-Nehemiah,was like the "collegium of the
Eanna temple" or "the assemblyof the Esagila temple" the assembly
1) The quotations are from SOTTAS, Pap. demot. Lille, no. 29 and from ERICH-
SEN, Pap. demot. Prag (Die SatTungenetc.); idem, "Der Demotische Papyrus
Hamburg I", Acta Orientalia26 (1961), pp. 97-107.
2) Literally: "we shall hold a session" (iw-n (r) hms.t). hms.t is tantamount to
'srh or mqr'qdsin the Bible.
3) Pap. Prag, 1.4; Pap. Hamburg, 1.5.
4) Pap. Prag, 1.7; Pap. Hamburg, 11.8-9;Pap. Lille, 1.3.For salt, ointment and
wine compare the allotment for the temple in Jerusalemin Ezra vii 9.
5) Pap. Prag, 11.7ff; Pap. Hamburg, 11.6-7;Pap. Lille, 1.6.
6) Pap. Lille, 11.5-6;Pap. Prag, 11.5-6; Pap. Hamburg, 1.11. These include
offerings for the King and the Queen as well as for the gods. Compare Ezra vi 10;
Aramaic Papyri, 30:25 f; 1 Maccab. vii 33, xii 11. Sacrifices for the
COWLEY,
benefit of the king were expecially common in the Persian kingdom, cf. HERODOT,
1:132.
7) Pap. Berlin 3115, 2;
8) HThR 29 (1936), pp. 84-85, see p. 72 n. 1
9)
Cf. VON SODEN, AHw, CAD, s.v.
10) Cf. most recently CT 49, no.no. 115, 143, 144, 147, 149 (see the review
article by J. OELSNER, ZA 61 (1971), pp. 159 if.). Mark especially: inapuburmare
Babili.... u kini!ti EutEanna "in the assembly of the Babylonians and... the
collegium of Eanna" (E. W. MOORE,Neo-BabylonianBusinessand Administration
Documents1935, no. 182:16).
11) O. SCHROEDER,(OLZ 19 1916, pp. 268 f) was the first to see the connection
between the Babylonian term kinistuand the Jewish term knst (hgdwlh).
THE ORIGIN OF THE APODICTIC LAW
75
attached to Jerusalem the holy city (Neh. xi 1) 1). The pact in Neh. x
may certainly reflect the cultic ordinance of this body. Very instructive
in this connection is a brief contract of the priestly collegium of
Esagila hl puhru (UKKIN) sa Esaggil) which sounds typologically
similar to that of Neh. x. Here we read that the assembly of Esaggila
takes pledge by declaring "From this day on annually we give from
our materials (hiSihtu)(supplies) 2 minas (worth) food... 2). Furthermore, the wording of this pledge: ultu hisihtinininandinuis very close
to Ezra vii 20 where the Persian King pledges to give from his
treasures: n7*l
ninrn 3).
:n
The change in formulating legal rules in the Persian period was
universal. As long as States were running their own countries (which
persisted even during the Assyrian period, when nations were still
ruled by their own leaders and kings), legal ordinances were proclaimed in the form of authoritative apodictic commands 4), the moment
native government ceased to exist, law and especially cultic law had to
be sponsored by the people themselves on the voluntary basis of
groups and corporation. The new situation is best exemplified by the
various increasing sects at the period of the Second Temple, the
investigation of which deserves a separate study.
1) For a recent discussion of the concept cf. E. E. URBACHI,The Sages, their
conceptsandbeliefs,1969, p. 505 and especially note 70 there (Hebrew).
der Babylonien,
2) Cf. E. UNGER,Babylon,Die heilige Stadt nachder Beschreibung
1931, no. 57, pp. 319, 11.19 ff. For a corrected translation, cf. B. LANDSBERGER,
ZA 41 (1933), pp. 297 f.
3) Compare vi:9: wmh bhsn... lhv mtjhb Ihm. The difference between the
Babylonian and the Biblical text is that in the former the collegiumof the temple
pledges to supply the leader with food from the treasures of the temple, while in
the latter thekingpledges to supply the temple with food from his treasures.
4) In contrast to the apodictic instructions which were meant to be put into
immediate implementation, the casuistic law corpora are mostly of hypothetical
nature, see e.g., F. R. KRAUS,"Ein zentrales Problem des altmesopotamischen
Rechts: Was ist der Codex Hammurabi", Geneva8, (1960), pp. 283-296; J. J.
FINKELSTEIN,JSC15 (1961), pp. 91-104.