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Models in Legal History: The Case of Biblical Law

Published online by Cambridge University Press:  24 April 2015

Bernard S. Jackson
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You don't have to be a postmodernist—and I am not—to take the view that the reading of ancient texts by legal historians cannot be “innocent.” All meaning is constructed: texts do not “make sense;” we attribute sense to them. And the sense we attribute is in part a function of the resources we bring to that process. Necessarily, we bring culturally contingent assumptions. We may not be able to rid ourselves of such assumptions, and restore ourselves to that state of innocence which traditionally has been identified with “objectivity.” But we can seek to lay bare those assumptions to the maximum possible degree, so that we can subject them to some process of evaluation (a process, no doubt, whose own assumptions should be subjected, equally, to critical examination).

If we ask what kind of assumptions the legal historian brings to ancient texts, the most ready answer would, no doubt, be assumptions regarding typical models of legal development. We can certainly identify the operation of assumptions of this kind in the modern literature relating to biblical law. The argument of this paper, however, will be that it is not sufficient to confine ourselves, for this purpose, to “models of legal development.” That very notion encompasses more general issues—what is law? what is development?—which themselves fall for examination.

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Journal of Law and Religion , Volume 18 , Issue 1 , 2002 , pp. 1 - 30
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Copyright © Center for the Study of Law and Religion at Emory University 2002

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References

1. On Maine, see Jackson, Bernard S., Law and Language: A Metaphor for Maine, A Model for His Successors?, in The Victorian Achievement of Sir Henry Maine 256 (Diamond, Alan ed., Cambridge U. Press 1991)CrossRefGoogle Scholar and, in the context of the views of Westbrook, Raymond, What is the Covenant Code?, in Theory and Method in Biblical and Cuneiform Law 15 (Levinson, Bernard M. ed., Sheffield Academic Press 1994)Google Scholar; see Jackson, Bernard S., Modelling Biblical Law: The Covenant Code, 70 Chi.-Kent L. Rev. 1745, 1750–1754 (1995)Google Scholar.

2. See Jackson, Bernard S., Essays in Jewish and Comparative Legal History 8–12 (E.J. Brill 1975)Google Scholar; for my developed view, see Jackson, Bernard S., Making Sense in Law: Linguistic, Psychological and Semiotic Perspectives chs. 7–8 (Deborah Charles Publications 1995)Google Scholar; Jackson, Bernard S., Making Sense in Jurisprudence ch. 3 (Deborah Charles Publications 1996)Google Scholar.

3. SirMaine, Henry Sumner, Ancient Law: Its Connection With the Early History of Society and its Relation to Modern Ideas 17–18 (10th ed., SirPollock, Frederick ed., Henry Holt & Co. 1906)Google Scholar.

4. Greenberg, Moshe, Some Postulates of Biblical Criminal Law, in Yehezkel Kaufmann Jubilee Volume: Studies in Bible and Jewish Religion Dedicated to Yehezkel Kaufmann on the Occasion of His Seventieth Birthday 5 (Haran, Menahem ed., Magnes Press 1960)Google Scholar, repr. in his Studies in the Bible and Jewish Thought 25 (Jewish Publication Socy. 1995)Google Scholar.

5. See Jackson, Bernard S., Studies in the Semiotics of Biblical Law 177–180 (Sheffield Academic Press 2000)Google Scholar, where I note the tension within Hoebel's own work between “postulates felt” at an unconscious level (the conception of the German Historical School) and the rational articulation of postulates (more akin, I suggest, to Dworkinian “principles”).

6. Commencing with his Legal Transplants: An Approach to Comparative Law (Scottish Academic Press 1974)Google Scholar.

7. Fitzpatrick-McKinley, Anne, The Transformation of Torahfrom Scribal Advice to Law 20 (Sheffield Academic Press 1999)Google Scholar. Cf. id. at 112. See Bernard S. Jackson, Review in J. Semitic Stud, (forthcoming).

8. Maine, supra n. 3, at 15 (emphasis supplied).

9. SirMaine, Henry Sumner, Dissertations on Early Law and Custom: Chiefly Selected from Lectures Delivered at Oxford 5 (Henry Holt & Co. 1886)Google Scholar.

10. Id.

11. Diamond, Arthur Sigismund, Primitive Law: Past and Present 47–48 (Methuen & Co. Ltd. 1971)Google Scholar; Sawer, Geoffrey, Law in Society 62 (Clarendon Press 1965)Google Scholar.

12. L.U. (Laws of Ur-Namma) §§18-22, commencing: “If [a man] cuts off the foot of [another man with …], he shall weigh and deliver 10 shekels of silver” (§18); similar provisions follow in respect of the “bone” (§19), “nose” (§20), “??” (text damaged) (§21), and “tooth” (§22). See Roth, Martha T., Law Collections from Mesopotamia and Asia Minor 19 (Scholars Press 1995)Google Scholar.

13. L.E. (Laws of Eshnunna) §42: “If a man bit and severed the nose of a man,—1 mina of silver he shall weigh out. An eye—1 mina; a tooth—1/2 mina; an ear—1/2 mina. A slap in the face—10 shekels silver he shall weigh out” (cf. L.E. 43-46). See Yaron, Reuven, The Laws of Eshnunna 69 (2d ed., Magnes Press 1988)Google Scholar.

14. Diamond, Arthur Sigismund, An Eye for an Eye, 19 Iraq 151 (1957)CrossRefGoogle Scholar; Diamond, Primitive Law, supra n. 11, at 98-101, 398-399. Cf. Marshall, Jay W., Israel and the Book of the Covenant: An Anthropological Approach to Biblical Law 133 (Scholars Press 1993)Google Scholar.

15. Diamond, we may note, was a Master of the Supreme Court.

16. Diamond was a proponent of Liberal Judaism; he did not feel bound by the rabbinic interpretation of biblical texts. Yet with this data he was able to avoid the apparently “primitivising” approach of the secularists.

17. Compare e.g. the provisions on goring oxen in Laws of Eshnunna §§53–55 (see Yaron, supra n. 13, at 77), Laws of Hammurabi §§250–252 (see Roth, supra n. 12, at 128), and Exod. 21:28-32, 35-36 [Biblical quotes are from the R.S.V., but citations are to M.T. where that differs].

18. For debate within linguistics and the philosophy of language on “literal meaning,” see Jackson, Making Sense in Law, supra n. 2, at 42-45.

19. The title of ch. 4 of Ong, Walter J., Orality and Literacy: The Technologizing of the Word (Methuen & Co. Ltd. 1982)CrossRefGoogle Scholar; see also Goody, Jack, The Domestication of the Savage Mind (Cambridge U. Press 1977)Google Scholar; Jackson, Making Sense in Law, supra n. 2, at 79-83.

20. Bernstein, Basil, Class, Codes and Control (Volume 1): Theoretical Studies Towards a Sociology of Language chs. 5-7, especially 108–109, 123–137 (Routledge & Kegan Paul 1971)CrossRefGoogle Scholar.

21. For the interdisciplinary narrative theory, deriving from Greimassian semiotics, psychology (Bartlett, Bruner) and the later Wittgensteinian philosophy of language, which provides the theoretical foundations of this conception of meaning, see Jackson, Making Sense in Law, supra n. 2, at ch. 5 and §§6.4, 10.2-3; Jackson, Making Sense in Jurisprudence, supra n. 2, at §§7.5, 9.2, 4. For applications to biblical law, see further Jackson, Bernard S., The Original Oral Law, in Jewish Ways of Reading the Bible 3 (Brooke, G.W. ed., Oxford U. Press 2000)Google Scholar; Jackson, Studies, supra n. 5, at 75-82.

22. The example is discussed in greater detail in Jackson, The Original Oral Law, supra n. 21, at 6-8, and Jackson, Studies, supra n. 5, at 75-77.

23. Discussed and rejected in Jackson, Bernard S., Theft in Early Jewish Law 204–206 (Clarendon Press 1972)Google Scholar.

24. Ong, supra n. 19, at 115. Narrative images still underlie much of our case law and jurisprudential theorising about it: see Jackson, Bernard S., Law, Fact and Narrative Coherence especially chs. 3-5 (Deborah Charles Publications 1988)Google Scholar.

25. For example, the history of legal drafting: see Jackson, Bernard S., Legal Drafting in the Ancient Near East in the Light of Modern Theories of Cognitive Development, in Mélanges à la mémoire de Marcel-Henri Prévost: Droit Biblique, Interprètation Rabbinique, Communautés et Société 49 (Presses U. France 1982)Google Scholar; Jackson, Studies, supra n. 5, at ch. 4 (discussing progressions from concrete to more abstract terminology; the movement towards consistency; increasing combination of variables within a single clause; increasing grammatical complexity (as in the number of clauses within a single paragraph); the tendency towards greater rule elaboration and systematisation; and the giving of reasons for rules). On the contribution which cognitive developmental psychology may make to our understanding of legal development more generally, see Jackson, Making Sense in Law, supra n.2, at chs. 7-8; Jackson, Making Sense in Jurisprudence, supra n. 2, ch. 3.

26. Hallpike, Christopher Robert, Foundations of Primitive Thought 39–40 (The Clarendon Press 1979)Google Scholar. Support for such an approach is also to be found in the work of Morris Ginsberg, Talcott Parsons, and a number of legal scholars. See Jackson, Bernard S., Historical Aspects of Legal Drafting in the Light of Modern Theories of Cognitive Development, 3 Intl. J. L. & Psych. 349, 349–350 (1980)CrossRefGoogle ScholarPubMed.

27. See Jackson, Bernard S., Exodus 21:18-19 and the Origins of the Casuistic Form, 33 Israel L. Rev. 798 (1999) (Falk memorial issue)CrossRefGoogle Scholar.

28. Daube, David, On the Third Chapter of the “Lex Aquilia”, 52 L. Q. Rev. 253 (1936)Google Scholar.

29. This medieval rule, affirmed in modern times in Rex v. Dyson, 2 K.B. 454 (1908) (Crim. App.) was repealed only in 1996: Law Reform (Year and a Day Rule) Act, 1996, ch. 19 (Eng.). However, the Attorney-General's consent to the prosecution is still required if death occurs more than three years later, or if the defendant has already been convicted of another (i.e. non-fatal) offence in connection with the incident.

30. Daube rightly stressed that we ought not to interpret such rules as “primitive,” exhibiting a state of legal evolution where causation could be conceived only in “direct” terms. See Daube, David, Direct and Indirect Causation in Biblical Law, 11 Vetus Testamentum 246 (1961)Google Scholar. He noted, for example, that within the Bible itself, direct forms of causation are required where death occurs, and the life of the defendant may be at stake; on the other hand, in cases of damage to property, leading only to payment of damages, causation can be far less direct: witness the law of the pit (Exod. 21:33-34), damage by depasturation (Exod. 22:4, MT), and damage by fire (Exod. 22:5, MT).

31. The Bible does recognise that expert determination of such matters may take a different course from determination by the man in the street. But the expert, for the biblical writers, is God himself. Even in cases of homicide, indirect causation is recognised, but judgments as to its existence are left to God. The classical case is that of the liability of David for the dead: of Uriah the Hittite (2 Sam 12:9). David had ordered his military commander to have Uriah placed in the front line, with a view to his falling in the battle with the Ammonites. It takes the prophet Nathan, conveying the judgment of God, to charge David on this basis: “Why have you despised the word of the LORD, to do what is evil in his sight? You have smitten Uri'ah the Hittite with the sword, and have taken his wife to be your wife, and have slain him with the sword of the Ammonites.”

32. See Jackson, Bernard S., Practical Wisdom and Literary Artifice in the Covenant Code, in The Jerusalem 1990 Conference Volume 65, 67–78 (Jackson, B.S. & Passamaneck, S.M. eds., Jewish Law Association Studies VI, Scholars Press 1992)Google Scholar; Jackson, Studies, supra n. 5, at 82-87.

33. Exod. 21:35 provides: “When one man's ox hurts another's, so that it dies, then they shall sell the live ox and divide the price of it; and the dead beast also they shall divide.” The law is designed so that there is no need to ask which ox “started it.” There is a live ox and a dead one. The farmers need not even argue about how much the dead ox had been worth when alive. They simply divide the carcass of the dead ox and take the live one to the market. In the typical case evoked by a narrative reading of the text, that of at least approximate equality of the values of the oxen, some inequity, or arbitrariness, may result. (For example: Value of dead ox when alive: 200; value of carcass: 50; value of goring ox when sold: 250. Each party gets the equivalent of 150; the owner of the dead ox has thus lost 50, the owner of the gorer has lost 100.) But this is the price to be paid for the ability to settle the matter immediately, without recourse to third party adjudication.

34. Exod. 21:2 provides: “When you buy a Hebrew slave, he shall serve six years, and in the seventh he shall go out free, for nothing.” The debt-slave has a fixed period of service. Once six years have been served, there can be no quibbling over whether the debt has been fully paid or not by the slave's labour. We should not necessarily assume that earlier release could be enforced on the grounds that the debt has been paid-off, though certainly an earlier release was always possible by agreement (and thus without requiring the intervention of third party adjudication). Most likely—though this is speculation—such debt-slavery would only be contemplated when the debt was substantial, and when it was anticipated in advance that six years of labour—though an arbitrary period—was more or less fair in the circumstances. In exchange for not demanding release before six years, the debt-slave knew, from this rule, that the master could not claim to detain him for more than that period. Moreover, release in the seventh year is automatic, and, according to our text, is marked by no formality whatsoever. It is, by implication, simply a reversion to the man's normal status. On the other hand, if the debt-slave wished to convert his status into that of permanent slavery, a ceremony was required (Exod. 21:5-6). What is exceptional, and therefore requires due signification to the community, is the choice to remain in bondage.

35. Exod. 22:2 (MT) is normally translated: “if he has nothing, then he shall be sold for his theft.” However, the language of this seemingly straightforward apodosis, venimkar bigeneyvato, is ambiguous. Falk, Z.W., Hebrew Legal Terms: II, 12 J. of Semitic Stud. 241, 242–243 (1967)CrossRefGoogle Scholar, pointed out that the verb makhar is not restricted to the concept of sale, but may refer more generally to delivery. Moreover, the noun genevah can mean either “the thing stolen” (the stolen property) or “theft.” It is clear, however, that the noun is used in the former sense in the very next verse, where the genevah is said to be found in the hand of the accused. This provides a very strong case for understanding the slavery provision in the same sense. The prefix b' is found elsewhere, in conjunction with the verb makhar, to mean “in exchange for:” for example, Deut. 21:14 forbids a warrior from selling his captive woman bakesef—in exchange for silver. In Jackson, Theft, supra n. 23, at 140-141, I suggested that the apodosis of Exod. 22:2 (MT) be rendered “he shall be handed over in exchange for the stolen animal,” and compared the Roman institution of addictio. It is unlikely, however, that the value of the thief, or of his labour for the period involved, would happen to coincide with the value of the stolen animal (or of the multiple restitution, if we view that as included). In its way, the remedy is very comparable to that of Exod. 21:35 (supra n. 33). The thief has nothing. The economic value of the animal has disappeared, whether the animal has been slaughtered or sold (for thieves, then as now, are likely to spend the proceeds pretty quickly). The remaining economic value, in this case, is that of the thief himself. Indeed, there is one more element of arbitrariness, if, in accordance with the rabbinic view (and cf. Gen. 44:10), one views this sale as creating a form of debt-slavery which is subject to the six-year rule of Exod. 21:2. The enslaved thief will therefore go free after six years. What is being exchanged is not the value of the thief on the slave-market, but the value of his labour for six years. If that does not reach the value of the animal he has stolen (or the multiple, if we take that view: see Jackson, Theft, supra n. 23, at 142-144), then that is the price that is to be paid for the ability to resolve the matter without requiring institutional assistance.

36. See Jackson, Bernard S., Judaism as a Religious Legal System, in Religion, Law and Language: Comparative Studies in Religious Law §3 (Huxley, Andrew ed., Curzon Press 2002)Google Scholar.

37. There is a tendency to marginalise the texts that indicate resort to forms of divine adjudication. The claim that justice “is” divine, or “belongs” to God—ki hamishpat lelohim hu (Deut. 1:17)—has often been watered down in modern scholarship, into what I have described as a “functional” model of divine adjudication, one which maintains that special divine procedures of adjudication (we think of cases of oracular consultation, oaths, the ordeal by bitter waters, etc.) are used only when the human rationality of the judge runs out, i.e. in cases of special evidentiary difficulty. This functional view, to which I myself once subscribed, now seems to me to reflect our modern perspectives, rather than what the Bible tells us. Recall the vivid picture in Exodus 18 of Moses as the overloaded first instance judge. 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 refers to oracular consultation). 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. According to Exod. 18, the newly appointed judges adjudicate on the basis of the “ordinances and laws” which Moses teaches them. But that reflects, as the narrative itself indicates in its own way, a later stage. See Jackson, Modelling Biblical Law, supra n. 1, at 1807-1816.

38. The dating of this change in the form of judicial adjudication is debatable. Perhaps the earliest evidence of a change in this conception occurs in Ezek. 44:24, where the Levitical priests are given jurisdiction to judge disputes, and are charged to determine them “according to my judgments;” certainly, by the time of Ezra, some form of the “Rule of (divine) Law” has been established—though some scholars have recently argued that this was in order to conform to Persian Imperial policy, rather than internal religious norms. See Crüsemann, Frank, The Torah: Theology and Social History of Old Testament Law 336–337 (Mahnke, Allan W. trans., Fortress Press 1996)Google Scholar; Watts, James W., Reading Law: The Rhetorical Shaping of the Pentateuch 138–143 (Sheffield Academic Press 1999)Google Scholar; Jackson, Studies, supra n. 5, at 142.

39. In cognitive terms, it cannot be entirely primitive, insofar as it involves a recognition of reciprocity, the establishment of a relationship between two situations judged to be comparable. In the paired narratives noted in §6.0 it is almost by definition an expression of thematic reiteration: two separate incidents related to each other by a form of reciprocity.

40. For fuller discussions of talion in biblical law, see Jackson, Bernard S., The Problem of Exod. XXI 22-25 (Ius Talionis), 23 Vetus Testamentum 273 (1973)CrossRefGoogle Scholar, repr. in Jackson, Essays, supra n. 2, at 75; Jackson, Studies, supra n. 5, at ch. 10; and “Lex Talionis:” Revisiting Daube's Classic (2001) (available at <www.law2.byu.edu/Biblical_Law/annual_meeting.htm>) (print version forthcoming). The present account, however, goes beyond the above in some respects, especially in §5.3, infra.

41. I have myself previously referred to “you shall do to him (the perjurer) as he had meant to do to his brother” as “the talionic principle”, by contrast with “the concrete formula.” See An Aye for an I?: The Semiotics of “Lex Talionis” in the Bible, in New Approaches to Semiotics and the Human Sciences: Essays in Honor of Roberta Kevelson 127, 134–135 (Pencak, William & Lindgren, J. Ralph eds., Peter Lang 1998)Google Scholar.

42. (Emphases supplied).

43. In the parable of the guardsman (1 Kings 20:39-43), used to reproach Ahab for not carrying out his obligation to execute the defeated Ben-Hadad, a disguised prophet pretends to be a soldier who has been commanded to guard a prisoner, in the following terms: “Keep this man; If by any means he be missing, your life shall be for his life [vehayta nafshekha tahat nafsho] or else you shall pay a talent of silver.” The prisoner, however, escapes. Ahab pronounces judgment against the soldier. The prophet thereupon reveals himself, and turns the judgment, using precisely the same words, against Ahab: vehayta nafshekha tahat nafsho. In the second narrative (2 Kings 10:24), Jehu, having enticed the Baal worshippers into the temple of Baal, tells the guards whom he places outside: “‘The man who allows any of those whom I give into your hands to escape shall forfeit his life (nafsho tahat nafsho).”’ Daube, David, Studies in Biblical Law 117–121 (Cambridge University Press 1947)Google Scholar, has argued that in both these cases the guard's liability to lose his life is expressed in terms of his liability personally to replace the escaped prisoner. The latter was doomed to execution, so the guard, now standing in his stead, is equally doomed to execution. However, the parable told to Ahab is slightly different. We would not know, from it alone, that the prisoner was “destined to destruction” (Daube's phrase), rather than slavery. Id. at 119. If it were the latter, then vehayta nafshekha tahat nafsho could mean (as I have argued for nefesh tahat nefesh in Exod. 21:23: Jackson, Essays, supra n. 2, at 96-98, and see Jackson, Studies, supra n. 5, at 288-289) that the guard must take the escapee's place as a slave.

44. Samson explains his actions against the Philistines with the words: “‘As they did to me, so have I done to them,”’ ka'asher asu li, ken asiyti lahem (Judges 15:11). Samson's father-in-law had given his wife to his companion (Judges 14:20), after Samson had gone back to his own father's house (Judges 14:19), thus seemingly deserting/divorcing her (cf. Judges 14:2). Samson takes revenge through the blazing foxes (Judges 15:4-6), a purely property-oriented response. The Philistines clearly recognise that this act is in response to the loss of his bride (Judges 15:6). They then burn the bride and her father (Judges 15:6). Samson swears further revenge for this: “‘If this is what you do, I swear I will be avenged upon you, and after that I will quit.’ And he smote them hip and thigh with great slaughter.” (Judges 15:7-8). The Philistines then attack Lehi, claiming that they want to take Samson prisoner and “to do to him as he did to us,” (la'asot lo ka'asher asah lanu) (Judges 15:10). The Judaites send 3000 men to Samson, to ask him to explain his actions. Samson does so by using the same ka'asher formula that the Philistines had used in justifying their own actions (Judges 15:11): “And he said to them, ‘As they did to me, so have I done to them’” (ka'asher asu li, ken asiyti lahem). The reference, in context, is surely to Samson's “great slaughter” in response (explicitly: “If this is what you do” (Judges 15:7)) to the killing of his wife and father-in-law, rather than to his destruction of their fields by the foxes (or, if it is that as well, the latter is in response to the deprivation of his bride—and her “fruits”). Clearly, that explanation does not satisfy the Judaites—or, if it does, they fear that it will not satisfy the Philistines—and they carry out their mission to take Samson prisoner and hand him over to the Philistines (Judges 15:12-13).

45. It would appear that the ka'asher formula implies qualitatively equivalent retribution, but without any concern for quantitative equivalence. It is this opposition between the qualitative and the quantitative which makes the boast of Lamech—“‘I have slain a man for [merely] wounding me, a young man for [merely] striking me. If Cain is avenged sevenfold, truly Lamech seventy-sevenfold”’ (Gen. 4:23-24)—so outrageous: he sees in purely quantitative terms what is in fact a qualitative difference—between non-fatal and fatal injuries. A requirement of quantitative equivalence, however, is added in the tahat formula: (only one) eye for an eye, etc. See Jackson, Studies, supra n. 5, at 271-280.

46. See Jackson, Bernard S., Law, Wisdom and Narrative, in Narrativity in Biblical and Related Texts/La Narrativité dans la Bible el les textes apparantés 31, 45–49 (Bibliotheca Ephemeridum Theologicarum Lovaniensium 149 (Brooke, G.W. & Kaestli, J.D. eds., Leuven U. Press 2000)Google Scholar.

47. I leave aside for present purposes the complications of the two situations regulated in verses 22-23, discussed in detail in Jackson, The Problem of Exod. XXI 22-25 (Ius Talionis), supra n. 40. Even if the conclusion there reached, that the talionic formula is here a late addition—indeed, it is possible that the entire paragraph is not original to the Covenant Code—is accepted, there is still a strong argument, given the evidence of the narratives, that the formula itself, even when added to the literary context, should be interpreted in terms of oral residue.

48. Daube, David, The New Testament and Rabbinic Judaism 255–259 (Athlone Press 1956)Google Scholar, argues from the antithetical examples Jesus provides that he is arguing not against mutilation for bodily injury but rather against suing for damages for insult.

49. The immediate context of this occurrence of the formula is indeed accidental injury (Exod. 21:22-23). But it is probable that this context is not original: on the interpolation of these verses, see my Essays, supra n. 2, at 96-107.

50. Finkelstein, J.J., The Ox That Gored, 71 Transactions of the Am. Phil. Socy. pt. 2, 34–35 (1981)Google Scholar, wrote that talio should be regarded as a “paradigm”.

51. Cf. Philo's rendition: De Specialibus Legibus bk. III, §195, in Philo: With an English Translation by F.H. Colson vol., 7, 597 (Loeb Classical Lib., Harv. U. Press 1958)Google Scholar: “If, then, anyone has maliciously (epibebouleukws) injured another in the best and lordliest of senses, sight, and is proved to have struck out his eye, he must in his turn suffer the same.”

52. Babylonian Talmud, Baba Kamma 84a, , p. 477 (Soncino, ed., 1978)Google Scholar. See Aristotle, , The Nicomachean Ethics: With an English Translation by H. Rackham bk. V, ch. 5, 279 (Loeb Classical Lib., Harv. U. Press 1962)Google Scholar; Cohn, Haim Hermann, Talion, 15 Ency. Judaica 741 (Keter Publg. House 1973)Google Scholar.

53. Unless we take the “one law” principle to refer to equivalence between offender and victim. But this does not appear to be its function in the talmudic argument.

54. That is clear in Deut. 19:21 and Lev. 24:20, in the light of which any argument that the formula in Exod. 21:24-25 was originally governed by the verb in the previous verse (venatatah nefesh tahat nefesh) is much weakened.

55. In fact, even where (as normal) verbs are present, Biblical Hebrew grammar does not have any clear or regular way of distinguishing these modalities. The attribution of the correct modality is a matter of “restricted” rather than “elaborated” code.

56. David offered kofer to the Gibeonites (2 Sam. 21:3); indeed, in the case of murder such “ransom” appears to have been banned only at a late stage in the history of biblical law (Num. 35:31-32), and in the case of adultery it does not appear to have been banned in biblical times at all (Prov. 6:32-35). These are all, however, matters of some controversy. See Jackson, Essays, supra n. 2, at 41-50, 59-62.

57. Cf. Paul, S.M., Studies in the Book of the Covenant in the Light of Cuneiform and Biblical Law 76 (E.J. Brill 1970)Google Scholar (at least as regards Exod. 21:24-25); aliter, Boecker, Hans Jochen, Law and the Administration of Justice in the Old Testament and Ancient East 175 (Moiser, Jeremy trans., SPCK 1980)Google Scholar: “[talion] was valid only as the official sentence of a properly constituted court.” Otto also associates the introduction of talion with the work of the local courts: Otto, Eckart, Wandel der Rechtsbegründungen in der Gesellschaftsgeschichte des antiken Israel. Eine Rechtsgeschichte des “Bundesbuches” Ex XX 22—XXIII:13 30–31 (E.J. Brill 1988)Google Scholar; Otto, Eckart, Körperverletzungen in den Keilschriftrechten und im Alten Testament: Studien zum Rechtstransfer im Alten Testament 183 (Neukirchener Verlag 1991)Google Scholar; cf. Nel, Philip J., The Talion Principle in Old Testament Narratives, 20 J. N.W. Semitic Languages 21, 21–22 (1994)Google Scholar. We may note that Deut. 19 can hardly be used to argue for court enforcement for talion in general, since the very context of the offence is the judicial process: cf. Jackson, Bernard S., Talion and Purity: Some Glosses on Mary Douglas, in Reading Leviticus: A Conversation with Mary Douglas 107, 110 (Sawyer, J.F.A. ed., Sheffield Academic Press 1996)Google Scholar. Westbrook, in my view, seeks too uniform a picture of the ancient Near Eastern (including the biblical) position insofar as he presents the “dual right—to revenge or ransom” as “a legal right—that is to say, it was enforceable with the aid of the machinery of the legal system” (Westbrook, Raymond, Studies in Biblical and Cuneiform Law 45 (J. Gabalda 1988)Google Scholar). According to the biblical sources, even homicide appears to have remained largely a private matter long after the establishment of the monarchy.

58. VIII:2, Si membrum rup(s)it, ni cum eopacit, talio esto, reflecting a similarly early stage in Roman institutional history. Fontes Iuris Romani Anteiustiniani pt. I, 53–54 (Riccobono, S. ed., S.A.G. Barbéra 1941)Google Scholar. We need not go as far as Westbrook (Studies, supra n. 57, at 71; cf. The Nature and Origins of the Twelve Tables, 105 Zeitschrift der Savigny-Stiftung für Rechtsgeschichte (Rom. Abt.) 74, 103 (1988)Google Scholar), on VIII:4, in claiming that the Roman provision actually reflects ancient Near Eastern influence, though the possibility is not excluded.

59. Josephus, Flavius, Jewish Antiquities: Books I-IV bk. IV, §280, in Josephus: With an English Translation by H. St. J. Thackeray vol. 4, 611 (Loeb Classical Lib., Harv. U. Press 1961)Google Scholar; Daube, New Testament, supra n. 48, at 256; Jackson, Talion and Purity, supra n. 57, at 109-110. The explanation offered by Josephus presupposes that the dispute is settled privately, rather than before a court (unlike his understanding of Exod. 21:22, which he presents quite separately: Ant. IV, 278).

60. Cassuto, Umberto, A Commentary on the Book of Exodus 276–277 (Abrahams, Israel trans., Magnes Press 1967)Google Scholar; Jackson, Essays, supra n. 2, at 85-86; Sprinkle, Joe W., The Interpretation of Exodus 21:22-25 (Lex Talionis) and Abortion, 55 Westminster Theological J. 233, 238–243 (1993)Google Scholar; Sprinkle, Joe W., ‘The Book of the Covenant:’ A Literary Approach 94 (Sheffield Academic Press 1994)Google Scholar; Westbrook, Studies, supra n. 57, at 45-47, 71-77, 80-81. Also in support of the availability of kofer in respect of talion, Houtman, C., Das Bundesbuch. Ein Kommentar (E.J. Brill 1997), 166Google Scholar, cites 1 Kings 20:39: that is a case of compounding a (supposed) capital liability by payment of money. However, the capital liability is expressed in terms of the formula of Exod. 21:23: nafsheha tahat nafsho o kikar kesef tishkol.

61. Pace Sprinkle, supra n. 60, at 242, who suggests that “it may be more ‘poetic justice’ than an application of the original, intended meaning of this law”. But though the story does not use the formula as it appears in Exod. 21:24, there is (see infra n. 62) a close terminological connection with the “ka'asher formula” in Deut. 19 and Lev. 24, both of which reflect also the formula as it appears in Exod. 21:24.

62. The language attributed to the king is comparable to the general, ka'asher + asah l', form found in both Deut. 19:19 (va‘asiytem lo ka'asher zamam la'asot le'ahiv) and Lev. 24:19 (ka'asher asah, ken ye'aseh lo).

63. Chiasmus does not appear to have been confined, however, to the purely “literary” sphere: there is a remarkable example of its use in one of the legal practice documents from Elephantine: Cowley 13, in Cowley, A., Aramaic Papyri from the Fifth Century B.C. 37–41 (Clarendon Press 1923)Google Scholar. See Porten, Bezalel, Structure and Chiasm in Aramaic Contracts and Letters, in Chiasmus in Antiquity: Structures, Analyses, Exegesis 169, 172 (Welch, John ed., Gerstenberg 1981)Google Scholar; Jackson, Practical Wisdom, supra n. 32, at 90.

64. On the relationship between dispute resolution and laws proclaimed in that context, see Jackson, Studies, supra n. 5, at 58-63.

65. Cf. Welch, John W., Chiasmus in Biblical Law: An Approach to the Structure of Legal Texts in the Bible, in Jewish Law Association Studies VI: The Boston Conference Volume 5, 7–9 (Jackson, Bernard S. ed., Scholars Press 1990)Google Scholar (citing Thomas Boys, 1825, as having first identified the major part of this structure).

66. Weinfeld, Moshe, The Uniqueness of the Decalogue and its Place in Jewish Tradition, in The Ten Commandments in History and Tradition 1, 12 (Segal, Ben-Zion & Levi, Gershon eds., Magnes Press 1990)Google Scholar, citing Zeidel, Moshe, Hikre Miqra 1–97 (Mosad ha-Rav Kook 1978)Google Scholar; I have not had access to the latter.

67. Cf. the tendency towards greater rule elaboration and systematisation noted in the works cited supra n. 25.

68. For Piaget, reversibility is the very essence of what he understands as even a “concrete mental operation”, and is a prerequisite for the development of logical thinking. Before this stage, a child given 2 buttons and then 3 more may be able to add them up to obtain 5, but will not realise, in the absence of the buttons, that the three can be subtracted from the 5 in order to produce the original 2. Similarly, a brother may know he has a sister, but may not realise that his sister has a brother (himself) until he acquires the capacity to perform reversible mental operations. Concrete mental operations are also accompanied, for Piaget, by an awareness of the techniques being used, and not merely a prediction of their success. See Jackson, Making Sense in Law, supra n. 2, at 247-248.

69. The Rabbis in Baba Kamma 84a, supra n. 52, do the reverse. They take the “one law” principle out of its own narrative context and apply it to that of talion.

70. See Maine, supra n. 9.

71. Cf. the works cited supra n. 25. Indeed, there is a philosophical tradition that regards rules themselves as reasons for action. See Raz, Joseph, Practical Reason and Norms (Hutchinson 1975)Google Scholar.

72. This is not to say that the narrative framework is itself entirely coherent, or to exempt it from literary-historical investigation. Nor does it preclude us from investigating what might have been the original use of the components that make up the final documents. But we must always remember that we have no direct access to the texts of “Biblical law”—whether we conceive of the latter as legal collections promoted by various religious circles as the law of God, or, a fortiori, as the positive law operative in ancient Israelite society.

73. Jackson, Studies, supra n. 5, at 236-241.

74. Gen. 37:22, 28, 29.

75. Gen. 42:16, though ultimately only Shimon suffers this fate: Gen. 42:19, 24; the Egyptian dungeon where Joseph was himself imprisoned is itself described as a bor: Gen. 41:14.

76. A.C.J. Phillips, Book Review, Socy. for Old Testament Study Book List 48, 49 (1973). At the time, I did not know that Anthony Phillips had trained as a Solicitor before turning to the Ministry!