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Review of Greengus, Laws in the Bible and in Early Rabbinic Collections: The Legal Legacy of the Ancient Near East

September 20th, 2012

By Shalom Holtz (Associate Professor of Hebrew Bible, Yeshiva University)

On July 23, 2012, the “Assyriology and the Hebrew Bible” consultation of the Society of Biblical Literature’s international meeting devoted a session to reviewing Samuel Greengus’s Laws in the Bible and in Early Rabbinic Collections: The Legal Legacy of the Ancient Near East (Cascade, 2011).  Below is a lightly edited version of my remarks.

The book under review provides a comprehensive and detailed statement of what its subtitle aptly calls “the legal legacy of the Ancient Near East.”  This book is arguably the most detailed description of this legacy ever published.  Each of the book’s sixty-four case studies, by my count, organized into eight main chapters, guides the reader through a chronologically broad, but at the same time legally focused, manifestation of this legacy.  In each, we encounter all of the ancient sources on the topic, from the overtly legislative law collections to relevant narratives based, in some way, on the law.  Simply because of the span of sources it addresses, but for other reasons, too, this book has much to offer any student of cuneiform law, the Hebrew Bible, rabbinic literature, and, more broadly, legal and cultural history.  It is a book that defies the specialist, since, in reading a given section, the Talmudist will have to contend with the latest conclusions of Assyriology, while the seasoned Assyriologist will discover the biblical commentaries of medieval Jewish authorities like Hazzequni and Bekhor Shor.  I especially welcome Greengus’s reliance on these and other medieval works, which are too often neglected in modern biblical scholarship.

In terms of its application of the comparative method, this book is, in my mind, a legally-focused analogue to my colleague Hayyim Tawil’s An Akkadian Lexical Companion for Biblical Hebrew (Ktav, 2009).  What Tawil has done for words and phrases, Greengus has done for law.  Anyone seeking an Akkadian equivalent to aid in the interpretation of the biblical text can begin, at the very least, by turning to Tawil’s Lexical Companion. Similarly, anyone who wishes to understand or further explore a good portion of biblical law in its ancient Near Eastern context now has a first address.  Moreover, Greengus’s book provides the solid foundation for even deeper exploration of any number of topics on the scholarly agenda. Staying within the realm of biblical law, for the moment, these topics might include: the similarities and differences between ritual and civil law, the nature of the Pentateuchal law collections, the relationships between these collections, the differences between these legislative sources and the law as practiced in ancient Israel, the relevance and usefulness of non-legislative texts for the study of law, or the use (and abuse) of legal institutions as a tool for historical dating of the texts.

We could, of course, choose to address any of these questions and consider the contributions and limitations of this book in answering them.  Our session, however, is held under the aegis of Assyriology and the Hebrew Bible. Given the scope of Greengus’s work, we ought to consider the book as an expression of the vitality of cross-textual, cross-cultural, and cross-legal comparisons.  This is, in fact, Greengus’s own goal, which he states in the first sentence of his introduction. He hopes “to focus attention on the historical relationship that exists between biblical, rabbinic, and ancient Near Eastern law collections.”  In calling our attention to the relationship between the laws, Greengus points, if you will, towards the “AND” in “Assyriology AND the Hebrew Bible.”   How does the study of law explain that “AND”? The book provides a solid basis for answering this question, so it is to this topic that I will devote my remarks today. With Greengus, however, I will also widen our session’s scope a bit by considering not only “Assyriology and the Hebrew Bible,” but also post-biblical Jewish law.

Greengus, in his statement of purpose, asks us to move beyond one field of specialization– biblical studies, Assyriology, or rabbinics– to consider the broader phenomenon that has been called “the shared tradition” of Near Eastern law. In this respect, the book brings to mind the writings of the late Raymond Westbrook, who was among the chief exponents of the idea of a common Near Eastern legal tradition. This idea emerges directly from comparison between biblical law and pre-biblical cuneiform law, and is mainly associated with biblical studies. But Greengus, like Westbrook, extends the boundaries to include cases that, for whatever reason, do not occur in the Hebrew Bible.   In his summation, Greengus identifies a category of laws that specifically do not appear in the Hebrew Bible, “laws attested in the ancient Near Eastern collections . . . still preserved and ‘re-emerging’ in the later, rabbinic collections” (p. 282).  Thus, reference to the cuneiform legal tradition provides the precedents for rabbinic rulings that allow divorce in the case of illness, assign penalties for assaults on dignity, and regulate assessments for negligence in agricultural leases, to name just three of Greengus’s nine examples. All of the laws in this category prove that rabbinic law partakes of a heritage that was, by the time of the Talmud, no longer available in its first Sumero-Akkadian manifestations, but was certainly still very much alive in Hebrew and Aramaic.

Greengus has certainly convinced me that this category of similar laws– laws that occur first in cuneiform and again much later in Talmudic literature– are, in fact, actual survivals.  A more skeptical reviewer might contend, perhaps based on the chronological and cultural gaps in attestation, that similarities could be random, independent developments, rather than survivals.  Indeed, given that all of these laws come from basically the same place in the world, one would expect to find similar responses to the environment.  People living in Babylon– whether they were Sassanian Jews or their predecessors from earlier in history– would have to govern the navigation of exactly the same waterways and the irrigation of exactly the same soil.  I agree with Greengus, however, that we should not attribute the similarities he has identified to independent developments. We must still think of these survivals as survivals, as evidence for a remarkably long-lived legal tradition.

How, then, can we explain this legal tradition’s long life? What is the mechanism by which these laws might have survived the demise of cuneiform to their later attestation in Talmudic sources?  In his discussion of this set of cases, Greengus attributes this continuity, correctly in my view, to continuity of practice within the biblical and post-biblical Jewish communities.  In other words, the gap in attestation does not imply that these laws were somehow unknown to pre-exilic and early post-exilic Israel.  Rather, Greengus suggests that these laws resemble what the rabbis describe as “the oral Torah:” the body of legal traditions that would have been known “from Sinai,” as it were, even though they are not part of the written record of the laws Moses received there.

The advantage of Greengus’s position is that it accounts not only for similarities, but also for differences, between the various manifestations of the law. The idea that rabbinic laws might reflect common practices within a much older legal tradition affords a measure of flexibility when we encounter the available evidence that Greengus presents. Let’s consider the example of regulations concerning assaults on dignity (pp. 136-139).  Greengus relates the rabbinic regulations to antecedents in the Laws of Eshnunna and the Laws of Hammurabi and even shows how they were put into practice in an Old Babylonian trial record.  If we were looking for an exact correspondence in all of the examples, however, we’d come up short; none of the sources states exactly the same thing. I should add that in this particular case–in contrast, say, to the more famous cases of “goring oxen”– even the examples of assaults are different: hitting cheeks in the Akkadian legal sources, and a wider range of behaviors in the Hebrew texts.  Nevertheless, following Greengus, all of these cases belong within the same tradition of legal practice, one that specifically stipulates penalties for inflicting shame.

The kind of evidence Greengus brings together in this case– the basic legal idea of assessing damages for humiliation manifest differently in a variety of laws– is precisely the kind of evidence that underlies the “idea of a shared tradition.”  Most significantly, as Bruce Wells and Rachel Magdalene have pointed out, Westbrook’s “idea of a shared tradition” explains both “macro” similarities and “micro” differences between the various manifestations of the tradition.[i]   If I may borrow their formulation, it is an effective way of coming to terms with both the quantity and the quality of data that reveal striking similarities at the level of fundamental law while, at the same time, exhibiting differences in the finer details.[ii]

Appeal to a shared tradition is especially important when we consider the set of legal practices that appear in cuneiform and reappear in rabbinic sources but “skip” the Bible, so to speak.  This gap in attestation means that, from the rabbinic perspective, there is no basic textual anchor for the practices.  Therefore, when the laws “re-emerge” in rabbinic literature, it is difficult to attribute this development only to rabbinic interpretation of the Hebrew Bible.  Here, we might cite the example of penalties for negligence in agricultural leases, which are stipulated in Akkadian law collections and documents of practice, and are recorded in the Mishna and Tosefta, but are not regulated in the Pentateuch (pp. 240- 245).  Now, of course, the lack of an explicit biblical prooftext is hardly an obstacle for rabbinic midrash.  Thus, it is all the more striking that rabbinic literature and even later codifiers do not attempt, as far as I know, to provide a specific source, even midrashically, for these practices. In fact, as Greengus shows, there are various traditions, even within rabbinic law, about how to assess the penalties.  The only source the Mishna cites is the very language of written leases themselves. Here, I think, we see the law explicitly recognizing legal practice as its source while practically ignoring the Bible as a source of law.  I hasten to add that even if we did have a rabbinic teaching that pointed to one prooftext or another, we would still have to give traditional practice priority over exegesis as the source of law.

The Mishna’s direct citation of the wording of the lease points to another important body of evidence in support of the idea of a shared tradition: legal formulations.   Here, I am referring to the language used mainly in documents that record individual legal transactions.  The very same legal tradition that gave birth to the basic similarities in legal practice also had a tradition of legal writing.  Sales, marriages, lawsuits and debts were all recorded according to conventions that, like the law itself, are remarkably stable over time.  In fact, I would consider the formulary of rabbinic legal documents, and Aramaic legal documents, in general, as a significant, even the most significant, survival from the cuneiform legal tradition.  And, like the laws governing renters’ negligence or penalties for assaults on dignity, the formulations of rabbinic legal documents are not drawn from biblical precedents. They are in Aramaic, not Hebrew; the rabbis themselves, in their discussion of the Mishna’s citation of the lease (b. BM 104a), describe it and other similar formulations as leshon hedyot, or “common language.”

Here, we would do well to invoke the work of Yochanan Muffs, of blessed memory, whose Studies in the Aramaic Legal Papyri from Elephantine (Brill, 1969) is missing from Greengus’s bibliography.  Muffs has shown that legal phrases in Aramaic– from Elephantine and also in later, rabbinic texts– preserve earlier Akkadian formulations through inter-linguistic translations, or calques.  The Aramaic and Akkadian legal records share phrases that have identical semantic meanings functioning in legally identical contexts.  Thus, according to Muffs, “the Aramaic legal formulary is the recipient of millennia of cuneiform legal experience” (p. 14).

We can observe this kind of linguistic continuity in one of the examples that Greengus himself presents, namely, the range of guarantees that a seller assumes in the sale of chattel slaves (pp. 113-116). These guarantees govern two main areas: clear title to the slave and the slave’s health. As Greengus correctly points out, all of these guarantees—from the regulations found in Hammurabi’s Code, through the Old Babylonian and Neo-Assyrian slave sale documents, and beyond them to R. Judah’s ruling in the Talmud—all properly belong to the wider set of defension clauses, attested in legal documents in both cuneiform and Aramaic.  Let us follow Greengus’s lead and consider the rabbinic formulation together with a Neo-Babylonian defension clause:

  1. R. Judah’s defension clauses (b. Git 86a)

R. Judah ruled (the following provisions be included) in slave sales: “This slave is

rightfully his property

and he is free and clear of claims of liberation or legal challenges and from claims of

            king and government [ופטיר ועטיר מן חרורי ומן עלולי ומן ערורי מלכא ומלכ(ו)תא];

and that no slave mark of another owner is upon his body;

and that he is free of all physical defect;

and from skin disease that may have erupted, whether recently or formerly.

 

Neo-Babylonian guaranty clause (cited from CAD S, p. 210)

B, C and D assume guaranty against (suits brought by) a person acting unlawfully (or)

             a person bring claims, (against suits claiming) the status of royal slave or of free

            person (arad-šarrūtu u mār-banûtu) which arise over A (the slave sold)

 

Comparing the two, we find continuity extending beyond the general legal concerns to the very language of the stipulations.  Specifically, R. Judah, like the Neo-Babylonian slave sale records, requires the seller to guarantee that the slave has no “claims of liberation or legal challenges,” nor “claims from the king or government.”   Here, we have not only common concerns, but common language expressing those concerns specifically in terms of lawsuits claiming freedom or obligations to the crown.

We can find similar Akkadian-Aramaic terminological commonalities in almost every rabbinic legal document.  My teacher, Professor Barry Eichler, during the course of a seminar on legal texts from Alalakh, observed the following parallel between land sale formulations:

 

  1. R. Dimi of Nehardea (b. B. Bat 63b–Variants cited from www.lieberman-institute.com)

One who sells a house to his fellow, even though he stipulates “depth (below) and height

(above)” [עומקא ורומא], must also write: “it is sold to you from the interior of the

           earth to the height of the firmament” [קני לך מתהום ארעא/מארעית תהומא ועד רום רקיעא].

 

Wiseman, Alalakh 55:5 (cited from CAD, E, p. 309)

A has bought (the villages) X and Y to their fullest limit, (including) the sky (lit. their

          sun) above them, and the (lit. their) earth below them (elēnu šamassunsu šaplānu

          erṣessunu).

The Alalakh text and the Amora R. Dimi’s formulation of land sale documents both stipulate that the sale includes infinite air rights above and ground rights below.  Now, it is true that the Akkadian and the Aramaic are actually mirror images of each other, and use somewhat different terminology.  But both texts share the same basic concern, and both express this legal concern through the striking, almost poetic, use of cosmic endpoints to define the limits of the sale: sun or sky above and earth below.  It is this idiosyncratic “legal poetry” that suggests that we have continuity here, rather than coincidence.[iii]

Examples like these could be multiplied, and would include, most prominently, parts of the ketubba-document governing marriage and the rabbinic get that effects divorce: two Aramaic documents of legal practice that are still in use to this very day.  Overall, then, when we compare the Akkadian and the Aramaic documents, we have another, written facet of the shared legal tradition.  Moreover, I would say that in making the case for this legal tradition, and this case ought to be made, the written documents have one advantage over the laws.  When it comes to comparing laws, such as those of goring oxen or those governing renters’ negligence, we resort, correctly, to imagining continuity of practice.  Regarding the legal documents, we see the continuity of practice in the writing itself; no need for imagination.

In a similar vein, the continued conventions of writing also point directly to the writers as those who continue the legal practice.  In other words, at least based on this set of data, we can identify the agents who ensured the legal tradition’s survival: the scribes.  The scribes’ debt to cuneiform is evident not only in complex legal formulations but also in the most basic vocabulary of their trade (item III on the handout). Two of their words for “documents”– get and shetar– the very products of their craft– came into Aramaic and then Hebrew under the influence of Akkadian.  Similarly, the Talmud (b. BB 32b) records an expression for invalidating a written document as “merely clay” (haspa be’alma). This seems to recall a time when legal writing was inscribed on clay, rather than written on vellum, as seems more likely during the times of the Talmud.

Thus, in addition to the writings themselves, the language that describes writing allows us to give the scribes credit for their part in preserving the legal legacy of the ancient Near East.  I would hesitate to give them all the credit; Greengus is certainly right when he assumes that “knowledge and transmission of all ancient laws was not dependent upon writing” (p. 7).  Surely, without a broader community engaged in legal practice, orally or in writing, there would be no tradition to speak of.  Nevertheless, as Greengus himself continues, “professional scribes and their writing may have played an important role both in preservation and dissemination of legal formulations and content” (p. 7).  Based on the commonalities in legal formulation, I would modify this only by saying that the scribes certainly did play this important role.

By way of conclusion, then, let us return to interpreting the “AND” in “Assyriology and the Bible.”  The book under review is crucial reading for anyone who wishes to understand the implications of that “AND” for the study of law.  By assembling a considerable body of evidence, Professor Greengus has given us an argument for the deep connection hiding behind that conjunction.   Assyriology’s laws and the Bible’s laws– and we have to add Rabbinic laws, too– all belong to one legal tradition, and must, therefore, be studied together.  The scholarly community must be grateful to Professor Greengus for advancing this argument by undertaking this study.  His book will, no doubt, launch new, further explorations of “the legal legacy of the ancient Near East.”

 

 

 

 

 


[i] Bruce Wells, “The Idea of a Shared Tradition,” in Law from the Tigris to the Tiber, pp. xii-xiii (citing Magdalene in n. 3).

 

[ii] Wells, xiii.

 

[iii] I have in mind Jakob Grimm’s observations regarding die Poesie im Rechts. On this, see Calvert W. Watkins, How to Kill a Dragon (Innsbruck, 1994), p. 718.

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