Laws in the Bible by Samuel Greengus

This is the text from a paper I gave at the International SBL in Amsterdam:

I take it as my responsibility to deal specifically today with what might be termed the Judaic aspects of Samuel Greengus’ new volume, Laws in the Bible and in Early Rabbinic Collections. First, I will seek to place this volume in the context of modern Jewish biblical studies and then I will discuss specifically its approach to second Temple and rabbinic texts.

From the point of view of modern biblical studies, it has long been recognized that there exists a trend within the field that is generally termed “Jewish biblical studies.” What typifies this approach is that it for the most part was developed at Israeli universities and American Jewish rabbinical schools; it greatly emphasizes comparative ancient Near Eastern data; it minimizes attention to issues of higher biblical criticism; and it makes use of traditional Jewish resources, rabbinic and medieval, which are often woven integrally into an exposition that synthesizes the various materials. The classic examples of this approach may be found in the Jewish Publication Society Bible Commentary series.  But to tell the truth, it seems to many observers that this kind of approach has entered into a period of decline because of new trends in biblical studies, especially regarding tendencies towards later dating and denial of basic historicity and, hence of the history, of that which is described or assumed in the biblical accounts.

This volume and many of the earlier works of Prof. Greengus continue this tradition of Jewish biblical studies and actually point in a direction somewhat opposite to the newer trends, calling on us to reconsider the historical relevance of these studies. Put simply, the absorption of so much of the Mesopotamian legal tradition, both in terms of style and content, and to the biblical legal tradition (we will return below to the rabbinic issue) cannot be successfully explained as simply a result of the cultural milieu. This is because a similar influence does not exist in Canaan as a whole, even taking into consideration the Akkadian legal texts form Ugarit.  This extensive Mesopotamian legal influence seems present only in the biblical law codes. It would seem that the only logical–perhaps possible–explanation for this phenomenon is a historical past in which the proto-Israelites were indeed connected to Mesopotamian culture and civilization. While it is possible, with some of the newer trends in biblical studies, to try to avoid such a conclusion, the preponderance of data assembled in this volume seems to call for the historical conclusions that I have suggested.

But what about the rabbinic material? Does it not perhaps argue the opposite? After all, Greengus shows throughout his book that Mishnaic law preserves much tradition of ancient Mesopotamian origin not found in the Bible.  This material seems to have been available to Jews in the Greco-Roman period in the Land of Israel where no plausible connection to link Israel to cuneiform materials or earlier Mesopotamian legal materials can be suggested. Would this not argue that the cultural milieu can actually be the source of biblical tradition strongly tied to Mesopotamia. We would argue otherwise.

Whereas it seems most likely that ancient Mesopotamian legal traditions, as well as some other religious and cultural traditions, served as a source for certain literary units and ideas found in the Hebrew Bible, we believe that no such material was directly available to the framers of the Mishnah in the way that, for example, neo-Assyrian legal traditions influenced the legal practices of the Jews of Elephantine. Rather, I would maintain, and I think that this is Greengus’ view as well, that various legal traditions preserved in texts of the tannaim, the teachers of the Mishnah, derived from a live oral tradition that was passed on over centuries as part of Israelite (maybe we should better say Judean) legal tradition and practice. Indeed, from a modern historical point of view, as opposed to a traditional Jewish point of view, there can be no question that one of the components of the traditions termed “oral law” by the rabbis constituted pre-existing ancient Near Eastern legal traditions that found their way into the rabbinic tradition.

Our colleague Baruch Levine has long argued for Mesopotamian influence on the rabbinic tradition. In this respect, he has been followed by Mark Geller and by our author, Samuel Greengus.  But if not for their work, we would have expected this influence to have entered rabbinic tradition in Babylonia, either as a result of that cultural milieu or from the late Akkadian literary tradition that still survived into the early centuries of our era. In the area of folk traditions, magic, medicine, agriculture and such things, we do find influence of the contemporary late antique Babylonian environment. Such influences appear in the words of the amoraim, the teachers of the Gemara.  However, when it comes to the legal material, the primary substratum has already been set forth in the Mishnah in tannaitic traditions and a small amount of new material does not shake our basic belief that this material entered Judaism in a much earlier period and constitutes a part of the corpus of oral traditions.

This entire situation should be contrasted with recent studies by our Yeshiva University colleague Yaakov Elman regarding the influence of Sassanian Iranian culture and law on Babylonian amoraic (that is Talmudic) literature.  The Babylonian Talmud did indeed develop in Sassanian ruled Iraq. Elman has found, by investigating classic legal and religious texts in Middle Persian, that numerous features of Babylonian Talmudic law can be explained as resulting from Sassanian practice. In this case, although the texts are from somewhat later, the influence can clearly be identified as having taken place during the period of Sassanian rule.

One final general historical observation is in order: Greengus’ work has another important ramification for the history of rabbinic law.  In some examples, he shows that there is a sort of trajectory that can be traced from ancient Mesopotamian law to that of the Bible and from there to that of the rabbis. To my mind the clearest example is presented right at the beginning of the book where he discusses levirate marriage. Here we see (if I may generalize) a progression from family members in ancient Mesopotamia and biblical narrative, through brothers in biblical law, through further limitation of the conditions in rabbinic literature. The point here is that certain historical developments already in evidence within biblical tradition are simply continued in the post-biblical development of Jewish law.  The area of divorce shows similar development in his view.

Despite our admiration for this work, we must already provide a note of caution. The two major corpora which are discussed in this work are the areas of Mesopotamian and biblical law. While the author is not to have been expected to present an introduction to the various collections of Mesopotamian law, the seamless way in which these codes are brought into historical sequence and assumed to be an essentially uniform system is a position that needs to be explained and argued. Material from Anatolia, Syria and Babylonia, stretching over a long chronological period, cannot simply be treated as a unitary corpus with no explanation. As regards the biblical material, the author does demonstrate a sense of chronological sequencing at various points throughout the volume.  He also shows a keen understanding of the differences, literary and historical, between what we might call “legal narrative” and the law codes. There is discussion of some of the wider issues in the concluding chapter. It would have been interesting to know from the author how his research intersects with higher biblical criticism which is alluded to very rarely. Here, the documentary collections seem to be separated only chronologically, and little attention seems to be given to the overall nature of the collections in which the various laws are found.

In the concluding chapter, entitled “Final Thoughts and Perspectives,” the author sets out four categories of material discussed in his work. The first and the fourth are especially important for the study of post-biblical Jewish law. The first refers to ancient Near Eastern legal material absent from the Bible but preserved in rabbinic texts and the fourth refers to biblical laws later reinterpreted by the rabbis. In discussing the first, the author argues his in-my-view correct conclusion that they are evidence for the existence of an oral law tradition handed down alongside the written law, the Pentateuch. He then refers to the conflicts between the Pharisees and Sadducees. He suggests that their conflict over the binding nature of the oral law may have referred to these ancient laws.

Re: the fourth of his categories, the author says very little, indicating the need for much further study. We would suggest that here one can see the results of the kind of omission for which we really cannot blame the author of a work. Greengus limited himself to his own research are that is fundamentally rooted in the study of the ancient Near East. But actually, this fourth category cannot be investigated without fully making use of Second Temple literature. Greengus himself refers here to Second Temple texts but makes no attempt to deal with them consistently. Again, we raise this topic  not as a criticism but in pointing to the need to use these documents as part of the wider context of scholarship.

As a result of the study of the Jewish legal material from Second Temple times, and the Apocrypha, Pseudepigrapha, and especially the Dead Sea Scrolls, we are now able to understand the rabbinic legal exegesis to which Greengus refers in a much wider context. For example, we seem to have reconstructed much about the exegetical method referred to as Sadducean in rabbinic texts and represented by the halakhic texts in the Dead Sea corpus. What we find here is that many of those traditions for which Greengus finds evidence in tannaitic material were already part of the Pharisaic tradition and may have been vigorously under debate already in the Hasmonean period.  Further, from the study of this material it can often be seen that many of the same specific issues are discussed in rabbinic literature or lie at the core of the earlier traditions.

A good example of this phenomenon can be found regarding the section entitled “5.6.2 Reclaiming Stolen Property” (pp. 218-22 although the section extends further).  This issue is treated in the Zadokite Fragments (Damascus Document) 9:10-12, although certainly from a different angle. This passage deals with the recovery of lost or stolen property for which the owner cannot be determined. From the law immediately before it (9:10-12), regarding use of an oath of adjuration to recover lost or stolen property, it is clear that this is also a case where it is not known who stole the object or money. While rabbinic parallels can be cited (Bava Qamma 9:12) the point here is that these issues were actively being pursued and discussed in Second Temple times. The problem is that our evidence is both physically fragmentary and sporadic. Accordingly, we have to reconstruct the wider legal context in which these laws operated, usually by using the Bible and triangulating with later rabbinic law to determine the overall legal framework as well as the opposing views against which the sectarian literature often polemicized.

Of course, this makes it inappropriate to criticize the author of a work on ancient Mesopotamian laws and their relationship to the Bible and rabbinic materials for not discussing Second Temple material that is not entirely congruent. At the same time, readers have to be aware of the extent to which the overall picture is much more complex and will eventually be enriched by the analysis of second Temple texts.

We now turn to some specific aspects of disagreement:

Greengus states (pp. 20-21) that the rabbis of the Mishnah “effectively eliminated the levirate altogether” based on M. Bekh. 1:7. In fact, levirate marriage continued throughout the Talmudic period as can be seen from amoraic texts. It was indeed eliminated for Ashkenazic Jews as a result of halakhic and later Kabbalistic objections. I myself met a Turkish Jew who performed levirate marriage and, although he has probably passed away in the intervening years, had been married some 50 years when I met him.

The author (p. 27) sees the argument about the permissibility of marrying one’s niece, allowed by rabbinic sources but forbidden by the Dead Sea sectarians and early Christian literature, as being an issue of historical progression in which what he calls “Prohibited Intergenerational Unions” were gradually forbidden in Judaism even though they had earlier been permitted in the Bible and ancient Near Eastern literature. The very sectarian source that he quotes, Zadokite Fragments (Damascus Document) 5:8-10, makes very clear that the sectarians saw this as a matter of biblical interpretation. Our view, based on extensive research into Second Temple texts, is that much of the debate between the Jewish sects was dependent on overall theories of biblical authority and interpretations as they manifested themselves in the interpretation of specific texts. While of course historical factors were part of the overall picture, we feel that it is necessary to take the exegetical side into account when understanding the specific controversies over marriage that one finds in Dead Sea Scrolls documents, especially in the extensive marriage regulations of the Temple Scroll and other texts.

Greengus argues (pp. 37-38) that it was the rabbis who required a written bill of divorce for every divorce, whereas at an earlier date oral declarations were acceptable, such as seems to have been the case in the Elephantine papyri. He is certainly correct that the contract documents used for marriage and divorce according to rabbinic halakhah are structured as court records of oral declarations. In fact, it seems that this is the history of all legal documents and that only later did documents begin to actually effect rather than record legal acts such as marriage, divorce or property acquisition. Despite that fact, attributing the transition to the rabbis ignores the rich collection of marriage and divorce documents found in the so-called Bar Kokhba caves and dating to the first and early second centuries CE. These documents indicate that Jews, as well as others in the Greco-Roman period, used marriage and divorce documents. Key to our point is the existence of documents that do not necessarily correspond to rabbinic practice. Further, scholarship on these documents has concluded that they indicate that the early rabbis basically adopted and naturalized what were the existing practices of Jews who sought to effect marriage and divorce. It seems needlessly simplistic to assume that the rabbis created such practices. It is more likely to assume that ancient traditions continued to develop and that the rabbis record and legislate about these practices as they were being undertaken by Jews with whom they came into contact.

As a footnote to his extremely important analysis of the laws of slavery in ancient Near Eastern, biblical and rabbinic texts, Greengus implies that hholding both Jewish and non-Jewish slaves was common among Jews in Roman times and then only disappeared in the Byzantine period. He further suggests in a footnote (p. 113 n. 1) that this practice continued much longer in Babylonia as evidenced by the 10-11th century Book of Contracts by Rav Hai Gaon. Actually, we have some way of judging this from the texts from the Judean Desert. The Samaria Papyri from Wadi el-Daliyeh contain numerous fourth-century BCE slave conveyance  documents.  On the other hand, the Bar Kokhba documents, dating from the first and early second centuries CE do not include such documents. It would seem, therefore, that slavery was going out by the Roman period already in the Land of Israel. The use of the halakhic works of Hai Gaon (his book of contract forms), or for that matter of the even later Maimonides, as evidence for any religious or legal practice must almost always be avoided. These works codify earlier practices, making a fundamental assumption that the entire halakhic system as defined in rabbinic literature was actually in force. This was not the case when these works were written. So we should avoid making a historical argument based on their codification of the law and legal procedures.

The book includes an extensive study of laws pertaining to injury. Throughout, the author maintains that the lex talionis was applied literally according to biblical law and that is only in rabbinic texts that this reading is reversed. He supports this view with reference to Josephus and Philo, both of whom were living in a society in which capital punishment by Jews had long been rendered inoperative by the simple fact of foreign domination. Both lived under Roman rule, albeit under slightly different applications of Roman law. Hence, to them the issue was theoretical and exegetical. One cannot conclude from their works that the literal application of such laws continued into Second Temple, that is, Greco-Roman times. Our author (p. 132) does agree that talionic punishment could coexist with penalties of compensation. Indeed, study of the material from Mesopotamian law codes that he quotes on the following pages indicates that an approach based on compensation, or a mixed approach, was well-developed already in ancient Mesopotamia. Accordingly, we would suggest caution in coming to the conclusion that biblical law literally intended “an eye for an eye.” We seriously question the assertion that literal, corporal talionic punishment came to an end only as a result of the influence of Roman law.

Perhaps I missed the reference (pages 172-79) to M. Sanh. 1:4 (cf. B. Bava Kam. 44b) that effectively nullifies the biblical command that the owner of a goring ox (Exodus 21:29) be executed if he had been warned and his animal again killed a person. This text, in my view, is the most explicit example of rabbinic exegesis setting aside a regulation found in the Torah.  Greengus does discuss the following verse alluding to compensation, an approach most probably leading to the negation of the literal meaning of the previous verse. He refers also to the interpretation of verse 29 by Targum Pseudo-Jonathan as referring to death at the hands of heaven. Forgive me if this criticism seems picayune but this Mishnah serves as one of my favorite examples of how rabbinic law can set aside biblical prescriptions.

Usually, it is traditional to end presentations such as this with something like:  despite the criticisms or disagreements that I have just presented, this is still an excellent book. I would prefer, if I may, to end a bit more personally. I agonized for some time as to whether to participate in this program for reasons of scheduling. But on the plus side was the opportunity to read this book carefully and discuss it with valued colleagues. Especially attractive for me was his treatment of post-biblical Jewish materials. When I began to read the book, I felt extremely at home, because whether rightly or wrongly, both Samuel Greengus and myself d our work by weaving together diverse but related materials that we (excuse the buzz words) “bring into conversation” with one another. For Greengus, the fundamental texts are ancient Mesopotamian law codes, the Hebrew Bible, and early rabbinic literature. My three corpora are biblical literature, the Dead Sea Scrolls, and rabbinic literature. But our methods of comparison are very similar.  Further, we both use medieval Jewish commentators for both their exegetical value in understanding biblical texts and also for investigating various interpretive strategies. Perhaps most importantly of all, our author pursues the kind of biblical studies in which I was trained. For these reasons I feel very happy to have invested the time I spent reading his work carefully and preparing the presentation.

So I can now return to the conclusion to which I referred above: despite the methodological and other hesitations that I expressed above, the author has written an excellent book which brings together the results of years of study of biblical law in the light of both ancient Near Eastern and Rabbinic tradition. This study has resulted in numerous excellent interpretive suggestions, such as his division of biblical material pertaining to chattel (“Canaanite” in Rabbinic parlance) and debtor (Jewish) slaves.  I learned an enormous amount from reading this book and I know that I will find myself referring to it over and over as I study and teach the biblical and rabbinic texts that Greengus has treated.  For this I am extremely grateful.