Weiter zum Inhalt

Instrumental Talion in Deuteronomic Law


Seiten 263 - 278

DOI https://doi.org/10.13173/zeitaltobiblrech.16.2010.0263




Manchester

1 English translations of the Hebrew Bible are provided from the JPS Hebrew-English Tanakh: The Traditional Hebrew Text and the New JPS Translation, 2nd Edition. Philadelphia, 1999, unless stated otherwise. Citations of the Aramaic Targumim are from The Comprehensive Aramaic Lexicon, edited by S.A. Kaufman and J.A. Fitzmyer, together with M. Sokoloff, http://call.cn.huc.edu/ (28. September 2010).

2 In accordance with Alexander Rofé's recommendation that: “Biblical law should in the first place be studied per se, on its own, without bending its interpretation to any other legal system” in A. Rofé, Deuteronomy. Issues and Interpretation. London — New York 2002, 219.

3 As witnessed in Exod 21:22–25, Lev 24:17–21 and Deut 19:21.

4 Although Moshe Weinfeld's view that Deuteronomy was composed by sages or scribes at the royal court of Judah during the 8th and 7th centuries B.C.E. is accepted, as is his thesis that both its form and content reflects Neo-Assyrian treaty conventions. See M. Weinfeld, Deuteronomy and the Deuteronomic School, Oxford 1972.

5 An approach to the dating of biblical sources (which is more appropriate here) has been suggested by Hugh Williamson: “In terms of historical method, the important question is not the date of the latest possible element in a given text, but rather the antiquity, extent and historical value of any earlier material, which may have been included within it”, in H.G.M. Williamson, Review of: Did Moses Speak Attic? Jewish Historiography and Scripture in the Hellenistic Period, Biblical Interpretation 12/3, 2004, 336.

6 R. Alter, The Five Books of Moses. A Translation with Commentary, London — New York, 2004, xvi–xvii: “It is an old and somewhat unfair cliché to say that translation is always a betrayal, but modern English versions of the Bible provide unfortunately persuasive evidence for that uncompromising generalization”.

7 Nor is the NRSV translation, which similarly states: “If men get into a fight with one another, and the wife of one intervenes to rescue her husband from the grip of his opponent by reaching out and seizing his genitals, you shall cut off her hand, show no pity” in The Holy Bible: New Revised Standard Version Containing the Old and New Testaments with the Apocryphal and Deuterocanonical Books — Anglicized Edition. London, 2007, 164.

8 Furthermore, Deut 25:11 does not specify that it is “two” men who are fighting with one another, as recognised in the NRSV translation (reference provided in the previous footnote) which states, “if men get into a fight with one another”, rather than “if two men get into a fight with each other”.

9 This is highly significant because the removal of just a palm, could have resulted in the woman potentially retaining her thumb, rather than having her whole hand amputated to the wrist.

10 Both Calum M. Carmichael and Paul Eddy Wilson explain the crime primarily in terms of its shaming potential, basing themselves on David Daube's observations in D. Daube, The Culture of Deuteronomy, ORITA: Ibadan Journal of Religious Studies, 3, 1969, 27–52. See C.M. Carmichael, The Laws of Deuteronomy, Ithaca (N.Y.), Cornell University Press, 1974 and P.E. Wilson, Deuteronomy XXV 11–12. One For The Books, VT 47/2, 1997, 220–253.

11 Marc Cortez summarizes the varied explanations of the wife's actions as follows: “As An Act to Save a Life” (433), “As An Act of Unwomanly Assertion” (434), „As An Act of Improper Intervention“ (436), “An Act of Shame or Violent Taboo” (438), “An Act of Damage or Threat To Progeny” (439) in: M. Cortez, The Law on Violent Intervention. Deut 25:11–2 Revisited, JSOT 30/3, 2006, 431–447.

12 J.H. Tigay, The JPS Torah Commentary. דברים Deuteronomy, Philadelphia (Pa.) 1996, 234.

13 J.H. Tigay, Deuteronomy (cf. n. 11), 484.

14 R. Solomon ben Isaac, 1040–1105, Troyes, France, in: .תורת חיים (תטניו) חמטה חמטי תורה ,םפר דברים ירוטלים: רטז־רטו. Y. al-Qirqisani, Kitab al-Anwar wa-al-Maraquib (ed. L. Nemoy), New York, 1941, 710–711. Jeffrey Tigay provides a translation of this exegete's views in J.H. Tigay, Deuteronomy (cf. n. 11), 484–485.

17 That Rashi's teachings circulated among contemporary Christian clergy is evidenced in the writings of Nicholas de Lyre.

18 Similarly Ibn Ezra (Abraham Ibn Ezra 1089–1164, Tudela, Spain) provides the same rationale in his interpretation: “You shall sever her hand: in the same manner that (the compensation for) an eye for an eye (Exod 21:24) is applied. You are not to redeem the price of the severed hand; have no compassion even if the accused is an impoverished woman”, as translated from: תורת חיים (תטניו) חמטה חמטי תורה ,םפר דברים ,ירוטלים: רטז.

20 L. Eslinger, The Case of the Immodest Lady Wrestler in Deuteronomy XXV 11–12, VT 31/ 3, 1981, 269–281.

21 Where the euphemism במבטיו literally “in his shames” occurs in Deut 25:11. This is a hapax legomenon from the root בוט meaning “shame”. This meaning is reflected in the modern Hertz edition of the Pentateuch which renders this expression as “by his secrets” (J.H. Hertz (ed.), The Pentateuch and Haftorahs, London, Soncino Press, 2001, 856), while the LXX hinting a little more suggestively at the male testicles, prefers “his twins”.

22 Unlike the more prevalent euphemisms used to denote male genitalia, i.e. בשׂד (flesh) in Gen 17:11–14, 23–25, Exod 28:42, Lev 15:2–18, Ez 16:26, 23:20, 44:7; עורה (nakedness) in Gen 9:22–23, Exod 28:42, Lev 18:6–17, 20:17, Ez 16:8, 36, 23:18; מתנים / חלצים (loins) in Gen 35:11, Jdg 8:30, 1 Kgs, 8:19, 12:10, Job 40:16, 2 Chr 6:9, 10:10; רגלים (legs or feet) in Exod 4:25, Ruth 3:4, 2 Sam 11:8, Prv 19:2, Isa 6:2.

23 Where the construct forms בכף־ירכ “on his hip socket” and כף־ירך “hip” are witnessed. Likewise in Gen 32:32: “Therefore to this day the Israelites do not eat the thigh muscle that is on the hip socket, because he struck Jacob on the hip socket at the thigh muscle”, where על־כף הירך “on the hip socket” appears.

24 ירך used alone to denote the male reproductive organ, occurs also in Gen 46:26, where “all the persons belonging to Jacob who came to Egypt — יצאי ירכו his own issue, aside from the wives of Jacob's sons — all these persons numbered 66”. Whereas ירך used alone to indicate the female genitals is witnessed only in Numb 5:21, in the curse of the suspected adulteress: “May the Lord make you a curse and an imprecation among your people, as the Lord causes your thigh to sag and your belly to distend, may this water that induces the spell to enter your body, cause the belly to distend and the thigh to sag”.

25 J.H. Elliott, Deuteronomy — Shameful Encroachment on Shameful Parts. Deut 25:11–12 and Biblical Euphemism in Ancient Israel, in: Ph. Esler (ed.), The Old Testament in Its Social Context, Minneapolis 2005 (161–176), 173.

26 If not also because ירך to indicate female genitalia does not occur in Deut 25:11–12.

27 J.H. Elliott, Deuteronomy — Shameful Encroachment on Shameful Parts, 173.

28 No “underhand action” is apparent in Gen 32:23–26, since Jacob does not appear to be the perpetrator of the attack: “That same night he arose, and taking his two wives, his two maidservants, and his eleven children, he crossed the ford of the Jabbok. After taking them across the stream, he sent across all his possessions. Jacob was left alone. And a man wrestled with him until the break of dawn. When he saw that he had not prevailed against him, he wrenched Jacob's hip at the socket”.

29 L. Eslinger, The Case of the Immodest Lady Wrestler, 280.

30 S. Paul, Biblical Analogues to Middle Assyrian Law in Religion and Law, in: E.B. Firmage/B.G. Weiss/J.W. Welch (eds.), Religion and Law: Biblical-Judaic and Islamic Perspectives, Winona Lake, Indiana, 1990, (333–350) 336.

31 J. Walsh, You Shall Cut Off Her … Palm? A Re-Examination of Deuteronomy 25:11–12, JSS 49/1, 2004, (47–58), 47.

32 Where the euphemism כפות המנעול “the handles of the bolt” occurred.

33 For example, Jer 9:24–25 states: “Lo, the days are coming — declares the Lord — when I will take note of everyone circumcised in the foreskin: of Egypt, Judah, Edom, the Ammonites, Moab and all the desert dwellers who have the hair of their temples clipped. For all these nations are uncircumcised, but all the House of Israel are uncircumcised of heart”.

34 J. Walsh, You Shall Cut Off Her … Palm? (cf. n. 28), 56.

35 J.H. Elliott, Deuteronomy — Shameful Encroachment on Shameful Parts, 174.

36 Otherwise the shaving of a woman's head is attested only in Deut 21:12–13 prescribed only for the אשת יפת תאר “beautiful captive woman”. No exegete, to my knowledge, has suggested that this indicated shaving her pubic hair.

37 Where את־הראט ושער הרגלים is provided for “the hair of the head and the hair of the legs”.

38 See also M. Pope, Euphemism and Dysphemism in the Bible, ABD I, 1992, (720–725) 721.

39 The comparative evidence of LH 127 does not further Walsh's argument, because this law does not clarify whether the guilty man's head or genitals were shaved: “If a man causes a finger to be pointed in accusation against an ugbabtu or against a man's wife but cannot bring proof, they shall flog that man before the judges and they shall shave off half his hair”. This translation of Hammurabi's Law provision in LH 127 is provided by M.T. Roth, Law Collections from Mesopotamia and Asia Minor, Atlanta 1997, 105.

40 The examples provided by J. Walsh, You Shall Cut Off Her … Palm? (cf. n. 28), 57, do not demonstrate this: Isa 3:17 (for example) states “My Lord will bare the pates of the daughters of Zion; the Lord will uncover their hair”, where only uncovering the head of hair was specified as a humiliation (as understood in the Mishnah Bava Qama 8:6). Neither does the nakedness of Isaiah in 20:4, nor the nakedness of the harlot in Ez 16:3, demonstrate that genital shaving was a recognised shaming convention for women. This was also the case with 2 Sam 10:4–5 where the beard was a euphemism for male pubic hair.

41 J. Walsh, You Shall Cut Off Her … Palm? (cf. n. 28), 57–58.

42 Within biblical tradition, lex talionis is defined by Haim Cohn as: “A concept of punishment whereby the prescribed penalty is identical with, or equivalent to, the offense. Identical or ‘true’’ talions are death for homicide (‘Whosoever sheddeth a man's blood by man shall his blood be shed’: Gen. 9:6), wounding for wounding (‘an eye for an eye’: Exod 21:23–25; Lev 24:19–20), and doing to the false witness ‘as he purported to do unto his fellow’ (Deut 19:19)”, in H. Cohn, Talion, EJ 19, 2007, 463.

43 M. Cortez, The Law on Violent Intervention (cf. n. 10), 431–447.

44 The “instrumental talion” was suggested by Professor Bernard Jackson during supervision of my doctoral research at the University of Manchester.

45 It is particularly exemplified in Proverbs 30:17, where “the eye that mocks a father and disdains the homage due to a mother; the ravens of the brook shall gouge it out; young eagles will devour it”. Such proverbial wisdom evokes also Babylonian law, where failure to recognize one's adoptive parents is punishable by plucking out the child's eye, as in LH 193: “If the child of (i.e. reared by) a courtier (mar girseqîm) or the child of (i.e. reared) by a sekretu identifies with his father's house and rejects the father who raised him or the mother who raised him and departs for his father's house, they shall pluck out his eye” in M.T. Roth, Law Collections (cf. n. 36), 120.

46 A. Rofé, Deuteronomy, 187. Likewise, Yael Shemesh defines such measures as a “punishment of the offending organ” in Y. Shemesh, Punishment of the Offending Organ in Biblical Literature, VT 55/3, 2005, (343–365), 343, although her study is based largely upon post-biblical and second Temple sources.

47 “Let the uplifted arm be broken” is a citation from Job 38:15.

48 Exod 21:22–25 states: “When men fight, and one of them pushes a pregnant woman and a miscarriage results, but no other damage ensues, the one responsible shall be fined according as the woman's husband may exact from him, the payment to be based on reckoning. But if other damage ensues, the penalty shall be life for life, eye for eye, tooth for tooth, hand for hand, foot for foot, burn for burn, wound for wound, bruise for bruise”.

49 Cf. n. 13.

50 Deut 13:8.

51 Ezekiel 7:4: ולא אחמול ולא תחוס עינך.

52 Ezekiel 9:10 states: וגם־אני לא תחום עיני ולא אתמל דרכם בראטם נתתי, where “I will give them their deserts” דרכם בראטם נתתי is literally “I will give them their ways on their heads”. Thus the NRSV (2007:805) provides: “I will bring down their deeds on their heads”. See also Ezekiel 8:18 and 11Q19 LXI, 12: לוא/תחום עיניכה עליו.

53 Published in O. Schroeder, Keilschrifttexte aus Assur verschiedenen Inhalts, Leipzig 1922, 12. This parallel was identified particularly by E. Otto, Das Deuteronomium. Politische Theologie und Rechtsreform in Juda und Assyrien, BZAW 284, Berlin — New York 1999, 274.

54 G.R. Driver/J.C. Miles, The Assyrian Laws, Oxford 1935, 385.

55 See R. Labat/F. Malbran-Labat, Manuel d'Epigraphie Akkadienne. Signes, Syllabaire, Ideogrammes, Paris 1999, 229.

56 D.D. Luckenbill, The Assyrian Code, in: The Origin and History of Hebrew Law, ed. by J.M. Powis-Smith, Toronto 1931, (223–245) 224.

57 T.J. Meek, The Middle Assyrian Laws, in: J.B. Pritchard (ed.) Ancient Near East Texts Relating to the Old Testament, New Jersey 1965, (180–188) 181.

58 T.J. Meek, The Middle Assyrian Laws (cf. n. 53), 181.

59 M.T. Roth, Law Collections (cf. n. 36), 192, footnote 10.

60 V. Scheil, Recueil de Lois Assyriennes, Paris 1921, 10.

61 G.R. Driver/J.C. Miles, The Assyrian Laws (cf. n. 50), 385.

62 G. Cardascia, Les Lois assyrienne, Paris 1969, 108.

63 S. Paul, Biblical Analogues to Middle Assyrian Law (cf. n. 27), 337.

64 K. Tallqvist, Old Assyrian Laws, Helsingfors 1921, 13–14.

65 M. Jastrow, An Assyrian Law Code, JAOS 41, 1921, (1–59) 15–16.

66 As (for example) witnessed in 1 Sam 11:1–2. A definition and account of military talionic convention has been provided in my doctoral thesis: The Body As Object: Physical Disfigurement in Biblical Law, which was awarded by the University of Manchester on 29 April 2010.

67 As Judges 16:2 is interpreted in M. Sotah 1:8.

68 As in the examples of MAL A4 which designates the removal of the wife's ears, MAL A5, cutting the wife's nose and MAL A9, cutting the nose and lacerating the wife's face.

69 M.T. Roth, Law Collections (cf. n. 36), 120.

70 S. Paul, Biblical Analogues to Middle Assyrian Law (cf. n. 27), 337.

71 M. Jastrow, An Assyrian Law Code (cf. n. 61), 7–8. The translation of MAL A9 is not entirely clear, as Driver and Miles provide: “[If] a man has laid a hand upon a married woman and has treated her as a young child (?) (and) charge (and) proof have been brought against him, [one] of his fingers shall be cut off. If he has kissed (?) her, the edge of the blade (?) of an axe shall be drawn along his lower lip (and) it shall b cut off”, in id., The Assyrian Laws (cf. n. 50), 385. Whereas Martha Roth prefers: “If a man lays a hand upon a woman, attacking her like a rutting bull (?), and they prove the charges against him and find him guilty, they shall cut off one of his fingers. If he should kiss her, they shall draw his lower lip across the blade(?) of an ax and cut it off”, in M.T. Roth, Law Collections (cf. n. 36), 157. Both, however, concur that the finger of the offending hand is removed, as is the lower lip of the mouth that has kissed the married woman.

72 That more than one finger is indicated, is evidenced by the plural marker MEš, which follows immediately after the broken sign.

73 C. Gordon, A New Akkadian Parallel to Deut 25:11–12, JPOS 15, 1935, (19–34), 32. Here there is no indication that any permanent injury was sustained, and nor was the intervention of a physician recorded.

74 C. Gordon, A New Akkadian Parallel (cf. n. 69), 33. Although Imshenaya is clearly the wife of a slave, who also belongs to Haishteshup, it is not certain if she was married to Arihaya, the man she was defending.

75 C. Gordon, A New Akkadian Parallel (cf. n. 69), 33.

76 Deut 23:1–3: “No man shall marry his father's former wife, so as to remove his father's garment. No one whose testes are crushed or whose member is cut off shall be admitted into the congregation of the Lord. No one misbegotten shall be admitted into the congregation of the Lord, none of his descendants, even in the tenth generation, shall be admitted into the congregation of the Lord”.

77 “No man of your offspring throughout the ages who has a defect shall be qualified to offer the food of his God. No one at all who has a defect shall be qualified: no man who is blind or lame, or has a limb too short or too long, no man who has a broken leg or a broken arm; or who is hunchback, or a dwarf, or has a growth in his eye, or who has a boil-scar or scurvy, or crushed testes”.

78 This reasoning was already suggested by the Italian commentator, R. Ovadia ben Jacob Sforno (1475–1550) in תורת חיים (תטנ׳ן) ,רטז and is supported more recently also by Robert Alter, who concludes: “If an impairment of reproductive function is involved, this would be grave, and would link this law to the concern for the continuation of the man's name in the levirate marriage” in R. Alter, The Five Books of Moses, 1002.

79 M.T. Roth, Mesopotamian Legal Traditions and the Laws of the Hammurabi, Chicago Kent Law Review 71, 1995, (13–39), 15.

80 M.T. Roth, Mesopotamian Legal Traditions (cf. n. 75),35.

81 As indicated in Exod 21:19: ונקח המכה רק טבתו יתן ורפא ירפא, where the assailant was required to pay the victim “for his idleness and his cure”.

82 As Alice Laffey demonstrates: “When men's possessions are enumerated, their wives are included in the list (e.g. Josh 1:14; 1 Sam 30:22; 2 Sam 19:5; 1 Kgs 20:3, 5:7). Women are included among the spoils of war (e.g. Jdg 5:30; 21:14; 1 Sam 30:2–3, 2 Kgs 25:4, 19)” in A.L. Laffey, Wives, Harlots and Concubines. The Old Testament in Feminist Perspective, London 1990, 80.

83 M.T. Roth, Mesopotamian Legal Traditions (cf. n. 75), 15.

84 Unless she was otherwise betrothed to (and paid for by) another man.

85 In a further discussion in BT Bava Qama 83b–85b a case brought before R. Papa ben Samuel is recorded, where the father objected to his injured child receiving the same valuation as a slave, which he personally considered to be degrading (84a).

86 M.T. Roth, Mesopotamian Legal Traditions (cf. n. 75), 15.

Empfehlen


Export Citation