1 E.g. Julius Wellhausen, Prolegomena to the History of Israel, preface by W. Robertson Smith, foreward by Douglas A. Knight, Atlanta 1994 (1885), 33; Roland de Vaux, Ancient Israel, New York 1961, 1.10–12, 21–22, 33–40, 51–55, 80–90, 150–158; W.F. Albright, The Judicial Reform of Jehoshaphat, in Alexander Marx Jubilee Volume, New York 1950, 61–82; Daniel Friedmann, To Kill and Take Possession, Peabody 2002.

2 William Ian Miller, Bloodtaking and Peacemaking: Feud, Law, and Society in Saga Iceland, Chicago 1990, 44–76.

3 Perhaps another way of expressing the phenomenon is this: How law is supposed to operate is one thing; what actually occurs is another, and what is perceived to occur is yet another. One hiccup in procedure can be seen in the book of Ruth where Boaz has to be coerced into championing Ruth's cause and the anonymous redeemer forced into, and then out of, action. The book of Ruth is a favorite subject for legal interpreters, and for an analysis of the law in Ruth, see for example Thomas and Dorothy Thompson, Some Legal Problems in the Book of Ruth, Vetus Testamentum 18, 1968, 79–99, and Jack M. Sasson, Ruth, 2d edition, Biblical Seminar, Sheffield 1989.

4 E.g. Geoffrey P. Miller (Contracts of Genesis, Journal of Legal Studies 22, 1993, 15–45) who argues that some of the Genesis narratives are traditional stories transmitted for the purpose of teaching customary law. He emphasizes that these narratives deal with hard cases and that the reason the texts convey hard cases is to convey “the maximum possible information in a highly compressed form” (G. Miller, 30). Now in some sense, both G. Miller's approach and my approach are similar in that they address cases at the margins, but G. Miller posits that the texts convey information about what the law is and ought to be, while I argue that the genre of narrative shapes law: it does not proclaim what the law is and ought to be but the gaps between what the law ought to be and what the law actually is. It portrays the flaws in the actual operation of law. Furthermore, G. Miller's claim that these stories were a way of teaching customary law begs the question of why there weren't more tales like these — only a fragment of customary law is transmitted in the Genesis stories.

5 E.g. Thomas L. Thompson, The Historicity of the Patriarchal Narratives: The Quest for the Historical Abraham, Berlin 1974; William G. Dever and W. Malcolm Clark, The Patriarchal Traditions, in John H. Hayes and J. Maxwell Miller, eds., Israelite and Judaean History, London 1977, 70–148.

6 For an in-depth analysis of alternate approaches to law in narrative, see my article, The Narrative Quandary: Cases of Law in Literature, Vetus Testamentum 54, 2004, 1–16. The present article is an extension of my methodology in two directions: 1) to apply it to more texts from Genesis with an explicit consideration of how their setting in patriarchal times might mislead an interpreter to use them as a reflection of earlier law; and 2) to make an explicit comparison of cases for which we have both legal and narrative texts versus those cases for which we have only narrative texts.

7 See Pamela Barmash, Homicide in the Biblical World, Cambridge 2005, 120–125.

8 For another example of the disjunction between law and reality, see the discussion of how Jacob is forced to acknowledge formally that Joseph is dead when he believes that Joseph is still alive in David Daube, Studies in Biblical Law, Cambridge 1947, 3–13.

9 There are no biblical legal texts about contracts.

10 It is not a food that is consumed on festive occasions.

11 G. Miller applies economic analysis of law to this episode (G. Miller 1993, n. 4 above, 24).

12 A heated debate has arisen over the economic structure of ancient Israel. For a discussion integrating theology and biblical texts, see Todd G. Buchholz, Biblical Laws and the Economic Growth of Ancient Israel, Journal of Law and Religion 6, 1988, 389–427. For a socio-economic analysis arising from archaeological finds, see Lawrence E. Stager, The Family in Ancient Israel, Bulletin of the American Schools of Oriental Research 260, 1985, 1–35; Avraham Faust, The Rural Community in Ancient Israel during Iron Age II, Bulletin of the American Schools of Oriental Research 317, 2000, 17–39.

13 The assumption of the story is that contracts are enforceable. G. Miller argues that contracts are notoriously difficult to enforce where there was no central authority to enforce them or widespread literacy by which the provisions of a contract could be remembered (Miller 1993, n. 4 above, 16). While the spread of literacy in ancient Israel is a topic of hot debate (see André Lemaire, Les écoles et la formation de la Bible dans l'ancient Israël, Fribourg and Göttingen 1981; James L. Crenshaw, Education in Ancient Israel: Across the Deadening Silence, ABRL, New York 1998; and David W. Jamieson-Drake, Scribes and Schools in Monarchic Israel: A Socio-archeological Approach, Sheffield 1991), Miller's claim that central authority is need to enforce contracts is hollow, especially when he singles out the pre-monarchic period as a time of special difficulty in the enforcement of contracts. Even during the period of the monarchy, royal officials are not portrayed as involving themselves in local justice, except in hard situations. Even Deuteronomy, a product of the late monarchy, prescribes local enforcement of justice. Only in cases where the law to be applied was uncertain was an appeal made to a central judiciary, which clarified the law, and the determination of the facts of the case was remanded to the local court (Deut 17:8–13). Furthermore, even a society without a central authority can be a web of interlocking social relationships that enforce agreements.

14 Daube 1947, n. 8 above, 192.

15 Jacob and Laban appear to have concluded three contracts altogether. The initial contract was for Jacob to work seven years for Rachel, then the second was agreed upon after Laban substituted Leah for Rachel at the wedding, and the affair of the speckled, spotted or dark-colored animals was the third.

16 While the older child was the primary heir, this could be undone. Most of the patriarchal stories in Genesis demonstrate the preferential treatment of a younger son. Isaac is preferred over Ishmael (Gen 21:10–12), Joseph over his older brothers (Gen 48:21–22), Judah over his older brothers (Gen 49:3–10), and Ephraim, Joseph's younger son, over Menasseh, Joseph's older son (Gen 48:1–6). Rules might be rules, but they can be manipulated.

17 See the blessing in Deut 28:1–6.

18 See Gen 15:18–31; 17:16.

19 See Gen 12:3.

20 Richard H. Hiers, Transfer of Property by Inheritance and Bequest in Biblical Law and Tradition, Journal of Law and Religion 10, 1993, (121–155), 147.

21 Raymond Westbrook, Property and the Family in Biblical Law, JSOTSS 113, Sheffield 1991, 149–150, 157–158. Although Numb 27:8 indicate that inheritance passes to a daughter only in the absence of a son and Laban did have sons (Gen 31:1), this might apply only to patrimonial estates, as evidenced by the issue of the alienation of tribal property that is the controversy in Numb 27.

22 See 2 Kgs 11:14, 18, 19, 20; Jer 37:2. The meaning of the phrase am ha-aretz changed during the Babylonian Exile, when according to 2 Kgs 25:12 only the poorest people of the land of Israel were left behind and not forcibly deported into exile.

23 See Meir Malul, Touching the Sexual Organs as an Oath Ceremony in an Akkadian Letter, Vetus Testamentum 37, 1987, 491–92.

24 Meir Malul, More on Pahad Yitsāq (Genesis XXXI 42,53) and the Oath by the Thigh, Vetus Testamentum 35, 1985, (192–200), 196–98 and Malul, Society, Law and Custom in the Land of Israel in Biblical Times and in the Ancient Near Eastern Cultures (Hebrew), Ramat-Gan 2006, 207–214.

25 It should be noted that Isaac prefaces his command to Esau to bring back game so that Isaac can eat it before blessing Esau with the phrase “I know not the day of my death” (Gen 27:2). This utterance might be a legal formula that formalizes the situation as a testamentary occasion. See E. A. Speiser, ‘I Know Not the Day of my Death,’ Journal of Biblical Literature 74, 1955, 252–256.

26 The situation of Sarah and Hagar differs significantly from the circumstances of the maids of Leah and Rachel, Bilhah and Zilpah. Leah and Rachel are competing in a contest of who could provide the most sons for Jacob (Gen 30). They name the sons born to their maidservants (Gen 30:6, 8, 12–13), a prerogative of a child's mother or adoptive mother (e.g. Gen 4:1; Exod 2:10; Jdg 13:24; 1 Sam 1:20). When the narrative makes later reference to Bilhah and Zilpah, they are still denoted as the maidservants of Rachel and Leah (Gen 35:23–26), not as the wives of Jacob or the mothers of their sons.

27 The closest biblical statute is Deut 21:15–17, which deals with two wives of equal social status (both are free, not slave) who are not loved equally by their husband. The statutes prescribes that the first-born child is entitled without any reservation or qualification to the first-born's right of a double portion in inheritance, whether the first-born is the son of the loved wife or the disliked wife.

28 For a one volume edition of the law collections of the ancient Near East, see Martha T. Roth, Law Collections from Mesopotamia and Asia Minor (2d edition), SBLWAW, Atlanta 1997.

29 There are a number of places in the Bible where an explicit contrast is made between a practice of the past and a contemporary one (whether contemporary to the time of the author or to the setting of the text is unclear). Besides name changes (Josh 14:15; 15:15; Jdg 1:10, 11, 23; 1 Sam 9:9) and demographic or political shifts (Deut 2:20; Josh 11:10), there is only one example of a change in legal practice. In Ruth 4:7, it is explained that in the past a man would take off his sandal and pass it to another man in order to validate a transaction of exchange or redemption. There is no explicit mention in the narratives of Genesis that the authors recognized that the legal system differed in the past or that the narratives of Genesis reflected an earlier legal system. Are there any implicit clues that the period of the patriarchal narratives reflected a different time? Although the length of the lives of the patriarchs and a number of the names of the deity are distinct in Genesis, I do not see any inkling of the concept that the legal system was different.