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Response to Roger Tomes: Home-Grown or Imported?

Pages 525 - 531



1 Wisdom-Laws: A Study of the Mishpatim of Exodus 21:1-22:16 (Oxford: Oxford University Press, 2006), hereafter cited by para. or page number alone.

2 And certainly not the versions of the homicide laws in Deut. 19 and Num. 35, though elements of self-help, in the role of the go'el hadam, survive.

3 Tomes overstates my “concession” when he writes: “While he maintains that these rules are capable of application without the intervention of third parties, Jackson concedes that the expectation of voluntary compliance would not always be fulfilled and that there might have to be institutional involvement as a last resort (p.184). The next of kin might not be content with payment for loss of earnings and nursing care but want vengeance; the person who struck the blow might not be willing to pay up.” In these latter cases I assume that vengeance and enforcement would be in the hands of the aggrieved parties. See further pp.181f., 184. He asks of the thief unwilling or incapable of paying the fourfold or fivefold damages: “And if he had to be sold (Exod. 22:2), who would do the selling?” I pointed out at p.82 that the language of Exod. 21:2 (tikneh) covers involuntary distraint (here, by the owner). Of course, such a system has its limitations: the victim may have to make judgments on matters of fact which might very well be better taken by a more objective third party. Tomes refers, for example, to the problem of identifying the person responsible where a fight is not limited to two people: Exod. 21:22. But this is no different, in principle, to the decision of the go'el hadam who catches up with the suspected murderer before the latter reaches a city of refuge. A system of self-execution can make mistakes; the remedy for such mistakes is also a matter for self-execution.

4 It is not, of course, claimed that this system was universally effective (any more than institutional enforcement is today), or even, in some cases, effective at all (Tomes's argument regarding the slavery laws). Nothing in my argument excludes the common view that many of the laws are stated as ideals, and did not reflect actual practice.

5 Thus the fact that “some of the concerns of the mishpatim are passed over very lightly or not contemplated at all in Proverbs” is hardly a counter-argument.

6 My emphasis. Nor can I agree that “[T]his conclusion is reinforced by the certainty that each of them was influenced by, respectively, the law codes and wisdom literature of the ancient near east” (even to the extent that I accept such a “certainty”).

7 On Exod. 23:1-3, 6-8, see pp. 403–06; on Exod. 18:13-26 (on which Tomes writes: “Although the first part of this description may suggest that Moses and the judges he appointed relied on divine inspiration or intuitions of justice, the second part clearly points to a code of some kind, whether written or learned by heart and passed on by word of mouth”), see pp. 414, 420–25; on 2 Chron. 19, see pp. 418–19 (where the view that the central court in Jerusalem had a code is contested; Tomes here additionally conflates the descriptions of the sources to be used by the local and central courts. On this, see more recently my “Law in the 9th century?: The Jehoshaphat Tradition in Context”, Proceedings of the British Academy 143 (2007), pp. 369–97). Tomes makes a good point in relation to the oath in the mishpatim: it is not necessarily reflective of later, priestly institutions (“The reference to it in Solomon's prayer (1 Kgs 8:31-32) suggests a widespread faith in the oath as an instrument of divine justice”). However, the fact that Solomon refers to a Temple oath does not exclude the use of oaths administered by the parties themselves (as is still reflected in rabbinic literature: mashbiakha ani, cf. my Theft in Early Jewish Law (Oxford: The Clarendon Press, 1972), pp. 247–49); comparison with Old Babylonia, whose state institutions were considerably more advanced than those of ancient Israel, does not appear to me to advance the argument. The same goes for the argument regarding the source (private or official) of the warning of the owner of the goring ox.

8 As in Num. 27, the case of the daughters of Zelophehad – where, however, that form is used not in the judgment but rather in the divinely commanded proclamation for the future.

9 Whose approach I address at pp. 45–54 and elsewhere (see Index).

10 Tomes cites Lev. 24 and Num.15; for my discussion, see pp. 425–30.

11 “Revolution in Biblical Law: Some Reflections on the Role of Theory in Methodology”, Journal of Semitic Studies L/1 (2005), pp. 91f.

12 See pp. 35–39.

13 Tomes notes that I do not offer any examples of the oral form particular mishpatim could have taken, and takes this as indicating not only the difficulty of getting behind them in their present form but also as encouraging the conclusion that they were formulated for the first time when they were written down. I do not think the latter conclusion logically follows. In any event, I did seek to indicate something of the range of forms likely to have been used, as Tomes acknowledges. That there may not have been a single oral form is suggested by the range of forms encountered for oral proclamations: see pp. 437, 444f.

14 See literature (Finkelstein, etc.) cited at p. 71 n.188.

15 A document predominantly declaratory does not exclude occasional reformatory provisions (or records of such): see, e.g., Hittite Laws §7 etc., Laws of Eshnunna §58.

16 F. Crüsemann, The Torah. Theology and Social History of Old Testament Law, trans. Allan W. Mahnke (Edinburgh: T&T Clark, 1996), p. 84.

17 See further my “Law in the 9th century? … supra n.7.

18 185-208; see also the final chapter of my Studies in the Semiotics of Biblical Law (Sheffield: Sheffield Academic Press, 2000), pp. 271–97.

19 Judg. 1:7 (Adoni-Bezek) and 15:11 (Samson) for the ka'asher formula; 1 Kings 20: 39–43, 2 Kings 10:24 for the tahat formula: see further pp. 196–98.


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