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Moses at Moab, Lincoln at Gettysburg? On the Genre of Deuteronomy, Again


Seiten 153 - 210

DOI https://doi.org/10.13173/zeitaltobiblrech.24.2018.0153




Atlanta GA, USA

1 S. Dean McBride, “Polity of the Covenant People: The Book of Deuteronomy,” in A Song of Power and the Power of Song: Essays on the Book of Deuteronomy (ed. Duane L. Christensen; SBTS 3; Winona Lake: Eisenbrauns, 1993), 62–77 (70). This essay was originally published in Int 41 (1987): 229–44.

2 Dennis T. Olson, Deuteronomy and the Death of Moses: A Theological Reading (OBT; Minneapolis: Fortress, 1994). תורה occurs 22x: Deut 1:5; 4:8, 44; 17:11, 18–19; 27:3, 8, 26; 28:58, 61; 29:20, 28; 30:10; 31:9, 11–12, 24, 26; 32:46; 33:4, 10. Of particular importance is the phrase “book of the torah” in Deut 28:61; 29:20; 30:10; 31:26 (the two words are also found together in 17:18; 28:58; and 31:24). Several instances of תורה or ספר (ה)תורה elsewhere in the Hebrew Bible may also refer to Deuteronomy: see esp. Josh 1:7, 8; 8:31, 32, 34; 22:5; 23:6; 1 Kgs 2:3; 2 Kgs 14:6 [cf. 2 Chr 25:4]; 22:8, 11; 23:24, 25; Neh 8:1, 3, 8, 18; 9:3; Mal 3:22 [ET 4:4]). For yet others, see McBride, “Polity of the Covenant People,” 54–55 n. 7.

3 One is reminded of Gerhard von Rad's rejoinder to Henning Graf Reventlow, when the latter said that Yhwh was the center of Old Testament Theology: “Of course, it can be said that Jahweh is the focal point of the Old Testament. This is, however, simply the beginning of the whole question: what kind of a Jahweh is he?” (Old Testament Theology [2 vols.; trans. D. M. G. Stalker; San Francisco: Harper and Row, 1962–1965], 2:415).

4 Olson, Deuteronomy and the Death of Moses, 6–14.

5 tyrb occurs 27x: Deut 4:13, 23, 31; 5:2–3; 7:2, 9, 12; 8:18; 9:9, 11, 15; 10:8; 17:2; 28:69 (2x); 29:8, 11, 13, 20, 24; 31:9, 16, 20, 25–26; 33:9.

6 Ratified with the approval of nine states (as per Article VII) on June 21, 1788 (New Hampshire).

7 McBride, “Polity of the Covenant People.”

8 Bernard M. Levinson, Deuteronomy and the Hermeneutics of Legal Innovation (New York: Oxford University Press, 1997).

9 See, e.g., J. G. McConville and J. G. Millar, Time and Place in Deuteronomy (JSOTSup 179; Sheffield: Sheffield Academic Press, 1994).

10 See esp. Levinson, Deuteronomy and the Hermeneutics of Legal Innovation; and also idem, Legal Revision and Religious Renewal in Ancient Israel (Cambridge: Cambridge University Press, 2008); idem, “The Right Chorale”: Studies in Biblical Law and Interpretation (Winona Lake: Eisenbrauns, 2011); and idem, A More Perfect Torah: At the Intersection of Philology and Hermeneutics in Deuteronomy and the Temple Scroll (CSHB 1; Winona Lake: Eisenbrauns, 2013). With reference to later, rabbinic material, see also Oren Gross, “Venerate, Amend…and Violate,” Arizona State Law Journal 46 (2014): 1151–1210.

11 For a brief history of scholarship (up to 1979), see Brevard S. Childs, Introduction to the Old Testament as Scripture (Philadelphia: Fortress, 1979), 202–25. Older treatments that remain useful include Otto Eissfeldt, The Old Testament: An Introduction (trans. P. R. Ackroyd; New York: Harper & Row, 1965), 219–33; and S. R. Driver, An Introduction to the Literature of the Old Testament (New York: Meridian, 1960), 69–103. More recently, see Olson, Deuteronomy and the Death of Moses, 7–11. Extensive coverage on the history of interpretation, including matters of genre, are found in Horst Dietrich Preuss, Deuteronomium (Erträ ge der Forschung 164; Darmstadt: Wissenschaftliche Buchgesellschaft, 1982); and, most recently, Eckart Otto, Deuteronomium 1, 1–4, 43 (HThKAT; Freiburg: Herder, 2012), 62–230. Note also Karin Finsterbusch, Deuteronomium: Eine Einführung (Göttingen: Vandenhoeck & Ruprecht, 2012).

12 I do not, for example, include the idea that Deuteronomy is a sermon, famously associated with Gerhard von Rad in his Deuteronomy: A Commentary (trans. Dorothea Barton; OTL; Philadelphia: Westminster, 1966 [orig: 1964]); and idem, Studies in Deuteronomy (trans. David Stalker; SBT 9; London: SCM, 1953 [orig: 1948]), but also found elsewhere, as, for example, in Martin Noth, “The Laws in the Pentateuch: Their Assumptions and Meaning,” in The Laws in the Pentateuch and Other Essays (Edinburgh: Oliver and Boyd, 1965), 1–107; and Patrick D. Miller, Deuteronomy (Interpretation; Louisville: John Knox, 1990), 12. As Miller has observed in another publication, one of the results of von Rad's interpretation was to shift the understanding of Deuteronomy away from it being “in any way a legal or socio-political code” (“Constitution or Instruction? The Purpose of Deuteronomy,” in The Way of the Lord: Essays in Old Testament Theology [FAT 39; Tübingen: Mohr Siebeck, 2004], 253–68 [254]). Bernard M. Levinson and Douglas Dance, “The Metamorphosis of Law into Gospel: Gerhard von Rad's Attempt to Reclaim the Old Testament for the Church,” in Recht und Ethik im Alten Testament (eds. Bernard M. Levinson and Eckart Otto; Münster: LIT Verlag, 2004), 83–110, discuss the significant (and negative) consequences of such a contrast between preaching and law, which, if nothing else, reflects von Rad's Protestantism more than Deuteronomy itself. See also in this regard von Rad's “Ancient Word and Living Word – Deuteronomy,” in idem, From Genesis to Chronicles: Explorations in Old Testament Theology (ed. K. C. Hanson; Minneapolis: Fortress, 2005), 89–98; and idem, Old Testament Theology, 1:195–203, 219–31. Von Rad is not the only (Protestant) interpreter to make such a move, of course, and neither is it always a simplistic or simple-minded one (cf., e.g., G. Ernest Wright, “Deuteronomy,” in IB 2:312–13). See already McBride, “Polity of the Covenant People,” 66 n. 10 for a critique of von Rad's law/gospel dichotomy. For still more genre categories (cult libretto, lawbook, and history), see William W. Hallo, “Deuteronomy,” in idem, The Book of the People (BJS 225; Atlanta: Scholars Press, 1991), 89–102. Note also the study by A. D. H. Mayes, “On Describing the Purpose of Deuteronomy,” JSOT 58 (1993): 13–33.

13 E.g., in many commentaries where the question of genre is often treated quickly or superficially with a general remark that the book is a generic compound (of law, narrative, poetry, etc.). A notable exception is found in Otto's work, which argues that, in its final form, Deuteronomy is a prophetic testament: See Deuteronomum 1,1–4,43, 274–80; and idem, “Vom Gesetzbuch zum Buch der Prophetie des Mose als Schlusstein der Tora: Das Deuteronomium,” in Aspekte der Bibel: Themen, Figuren, Motive (ed. Hans-Joachim Simm; Freiburg: Herder, 2017), 124–37. Far more briefly, cf. also Robert Polzin, “Reporting Speech in the Book of Deuteronomy: Toward a Compositional Analysis of the Deuteronomic History,” in Traditions in Transformation: Turning Points in Biblical Faith (eds. Baruch Halpern and Jon D. Levenson; Winona Lake: Eisenbrauns, 1981), 194–95.

14 This is a debatable point, on which see Olson, Deuteronomy and the Death of Moses, 129 and n. 1 (with literature). Cf. Eckart Otto, Deuteronomium 23,16–34,12 (HThKAT; Freiburg: Herder, 2017), 1983–84, who thinks the verse is neither a colophon or a title but serves as a transition. See further below.

15 Another debated point, but see, e.g., Norbert Lohfink, Das Hauptgebot: Eine Untersuchung literarischer Einleitungsfragen zu Dtn 5–11 (AnBib 20; Rome: Pontifical Biblical Institute, 1963); Olson, Deuteronomy and the Death of Moses, 62–125, esp. 63–64 n. 3 for literature; Stephen A. Kaufman, “The Structure of the Deuteronomic Law,” Maarav 1 (1978–1979): 105–58; Georg Braulik, “The Sequence of the Laws in Deuteronomy 12–26 and in the Decalogue,” in A Song of Power and the Power of Song: Essays on the Book of Deuteronomy (ed. Duane L. Christensen; SBTS 3; Winona Lake: Eisenbrauns, 1993), 313–35; Mark E. Biddle, Deuteronomy (Smyth and Helwys Bible Commentary; Macon: Smyth and Helwys, 2003), esp. 197–390; John H. Walton, “The Decalogue Structure of the Deuteronomic Law,” in Interpreting Deuteronomy: Issues and Approaches (eds. David G. Firth and Philip S. Johnston; Downers Grove: IVP Academic, 2012), 93–117; and Kilchör, Mosetora und Jahwetora, 41–70 (more extensively, 71–307). For a review of several of these works and the idea of a “dekalogischen Struktur,” see Otto, Deuteronomium 1, 1–4, 43, esp. 179–83.

16 George Mendenhall, “Ancient Oriental and Biblical Law,” BA 17/2 (1954): 25–46; idem, “Covenant Forms in Israelite Tradition,” BA 17/3 (1954): 49–76; idem, Law and Covenant in Israel and the Ancient Near East (Pittsburgh: Biblical Colloquium, 1955); Dennis J. McCarthy, Treaty and Covenant: A Study in Form in the Ancient Oriental Documents and in the Old Testament (new ed.; AnBib 21a; Rome: Pontifical Biblical Institute, 1981), esp. 155–205; and Meredith G. Kline, Treaty of the Great King: The Covenant Structure of Deuteronomy: Studies and Commentary (Grand Rapids: Eerdmans, 1963). Cf. K. A. Kitchen, Ancient Orient and Old Testament (Downers Grove: InterVarsity, 1966), 90–102; idem, On the Reliability of the Old Testament (Grand Rapids: Eerdmans, 2003), 283–312; and Kenneth A. Kitchen and Paul J. N. Lawrence, Treaty, Law and Covenant in the Ancient Near East (3 vols.; Wiesbaden: Harrassowitz, 2012), 1:775–898, 2:78–84, 3:117–213. Note also Moshe Weinfeld, Deuteronomy 1–11: A New Translation with Introduction and Commentary (AB 5; New York: Doubleday, 1991), 4–9; and, more extensively, idem, Deuteronomy and the Deuteronomic School (repr. ed.; Winona Lake: Eisenbrauns, 1992 [orig: 1972]), 59–157; also Peter C. Craigie, The Book of Deuteronomy (NICOT; Grand Rapids: Eerdmans, 1976), esp. 20–32, 79–83; J. G. McConville, Law and Theology in Deuteronomy (JSOTSup 33; Sheffield: JSOT Press, 1984), 3–7, 159; and, more generally, Delbert R. Hillers, Covenant: The History of a Biblical Idea (Baltimore: Johns Hopkins University Press, 1969), esp. 143–58; and Ernest W. Nicholson, God and His People: Covenant and Theology in the Old Testament (Oxford: Clarendon, 1986).

17 Particularly Esarhaddon's Succession Treaty (EST). See D. J. Wiseman, “The Vassal-Treaties of Esarhaddon,” Iraq 20 (1958): 1–99; Simo Parpola and Kazuko Watanabe, Neo-Assyrian Treaties and Loyalty Oaths (SAA 2; Helsinki: Helsinki University Press, 1988), 28–59; and Kitchen and Lawrence, Treaty, Law and Covenant, 1:953–1004, esp. 963–1002; cf. also 1:769–74, 3:117–213. The Sefire inscriptions are also noteworthy (see ibid., 1:911–34). For studies of the issues, see Christoph Koch, Vertrag, Treueid und Bund: Studien zur Rezeption des altorientalischen Vertragsrechts im Deuteronomium und zur Ausbildung der Bundestheologie im Alten Testament (BZAW 383; Berlin: Walter de Gruyter, 2008); and, most recently, Laura Quick, Deuteronomy 28 and the Aramaic Curse Tradition (OTRM; Oxford: Oxford University Press, 2018), who favors West Semitic influences over cuneiform traditions. For recent reattention to Hittite material, see Joshua Berman, “CTH 133 and the Hittite Provenance of Deuteronomy 13,” JBL 130 (2011): 25–44. Note the subsequent exchanges in Bernard M. Levinson and Jeffrey Stackert, “Between the Covenant Code and Esarhaddon's Succession Treaty: Deuteronomy 13 and the Composition of Deuteronomy,” JAJ 3 (2012): 123–40; Joshua Berman, “Historicism and Its Limits: A Response to Bernard M. Levinson and Jeffrey Stackert,” JAJ 4 (2013): 297–309; Bernard M. Levinson and Jeffery Stackert, “The Limitations of ‘Resonance’: A Response to Joshua Berman on Historical and Comparative Method,” JAJ 4 (2013): 310–33.

18 As just one example, see McBride, “Polity of the Covenant People,” 68, who thinks “the Mosaic memoirs of 1:6–4:40” do not correspond to the “historical prologue” section of a treaty/covenant document.

19 I leave unmentioned here the large discussion of Deuteronomy as a subversive reworking of EST. For a recent overview, see Quick, Deuteronomy 28, 12–40.

20 Miller, Deuteronomy, 12.

21 Partial matching and non-matching could be the result of diachronic development and the composite nature of the final form of the book of Deuteronomy, but the full details of such a position, debated in the secondary literature, is not my primary concern here.

22 Olson, Deuteronomy and the Death of Moses, 7.

23 McBride, “Polity of the Covenant People,” passim, but esp. 62–63, 65; for Josephus's remark, see Jewish Antiquities, 4.176–331. Modern scholars who anticipated some of McBride's ideas include S. R. Driver, A Critical and Exegetical Commentary on Deuteronomy (3rd ed.; ICC; Edinburgh: T. & T. Clark, 1902), xxvi, who refers to Deuteronomy as “a manual, addressed to the people, and intended for popular use, which…would instruct the Israelite in the ordinary duties of life.” See also the explicit use of constitutional language in Weinfeld, Deuteronomy and the Deuteronomic School, 168: “Deuteronomy appears indeed to have the character of an ideal national constitution representing all the official institutions of the state” (see further 164, 168–71); cf. also Jacob Milgrom, Leviticus 17–22 (AB 3A; New York: Doubleday, 2000), 1356. For the connection to Josephus, see also Yehoshua Amir, “Josephus on the Mosaic ‘Constitution,’” in Politics and Theopolitics in the Bible and Postbiblical Literature (eds. Henning Graf Reventlow, Yair Hoffman, and Benjamin Uffenheimer; JSOTSup 171; Sheffield: JSOT Press, 1994), 13–27. Most recently, see Baruch Halpern, “Between Elective Autocracy and Democracy: Formalizing Biblical Constitutional Theory,” in Literature as Politics, Politics as Literature: Essays on the Ancient Near East in Honor of Peter Machnist (eds. David S. Vanderhooft and Abraham Winitzer; Winona Lake: Eisenbrauns, 2013), 165–83: Deuteronomy “is indeed constitutional” (176).

24 McBride, “Polity of the Covenant People,” 64.

25 Ibid., 77.

26 Ibid., 66.

27 Ibid.

28 Ibid., 67. McBride deems החקים והמשפטים hendiatic: “the statutory rulings” (ibid., 66). Cf. NRSV: “the statues and ordinances”; CEB: “the regulations and the case laws.”

29 Ibid., 67.

30 Ibid., 67–68.

31 Ibid., 70; cf. 71: “it is something else and genuinely new, the charter of a constitutional theocracy.”

32 Ibid., 70; cf. 69 where McBride begins his discussion of “the design and chief concerns of the polity itself” with a citation from Carl Joachim Friedrich, Transcendent Justice: The Religious Dimension of Constitutionalism (Durham: Duke University Press, 1964), 16–17, on “[t]he true nature of a constitution and of constitutionalism,” which Friedrich defines as revealed by a constitution's “political function,” by which it realizes “specific political objectives.” Among the latter, “the core objective is that of safeguarding each member of the political community as a political person, possessing a sphere of genuine autonomy. The constitution is meant to protect the self in its dignity and worth.”

33 McBride, “Polity of the Covenant People,” 70. Hence, the 2ms and 2mp switch (Numeruswechsel), on which see recently Bill T. Arnold, “Number Switching in Deuteronomy 12–26 and the Quest for Urdeuteronomium,” ZAR 23 (2017): 163–80 (with literature).

34 McBride, “Polity of the Covenant People,” 75.

35 Ibid., 76; cf. 72.

36 See, among others, Carolyn Pressler, The View of Women Found in the Deuteronomic Family Laws (BZAW 216; Berlin: Walter de Gruyter, 1993).

37 See, e.g., Tikva Frymer-Kensky, “Deuteronomy,” in Women's Bible Commentary (rev. ed.; eds. Carol A. Newsom and Sharon H. Ringe; Louisville: Westminster John Knox, 1998), 57–68.

38 For discussion on these texts and the various issues they raise, see, inter alia, Norbert Lohfink, “Recent Discussion on 2 Kings 22–23: The State of the Question,” in Christensen, ed., A Song of Power and the Power of Song, 36–61; Weinfeld, Deuteronomy 1–11, 65–84; and Jack R. Lundbom, Deuteronomy: A Commentary (Grand Rapids: Eerdmans, 2013), 6–20.

39 Cf. Olson, Deuteronomy and the Death of Moses, 9, who believes this applies not only to McBride's work, but also to similar arguments in Uto Rüterswörden, Von der politischen Gemeinschaft zur Gemeinde: Studien zu Dt. 17,18–18,22 (BBB 65; Frankfurt am Main: Athenaeum, 1987). Note Mays, “On Describing the Purpose of Deuteronomy,” 30 who asserts that Deuteronomy is “not in itself a constitution or piece of state legislation, but rather a resource to give objective grounding to such a constitution or legislation.”

40 Cf., e.g., Juha Pakkala, “The Date of the Oldest Edition of Deuteronomy,” ZAW 121 (2009): 388–401, for a very late dating of even the earliest parts of the book (post-586). Note the response by Nathan MacDonald, “Issues and Questions in the Dating of Deuteronomy: A Response to Juha Pakkala,” ZAW 122 (2010): 431–35; and Pakkala's reply: “The Dating of Deuteronomy: A Response to Nathan MacDonald,” ZAW 123 (2011): 431–36.

41 Olson, Deuteronomy and the Death of Moses, 10.

42 Ibid., 11.

43 Ibid. For more on תורה, see Gunnar Östborn, Tōrā in the Old Testament: A Semantic Study (Lund: Hakan Ohlssons, 1945); Barnabas Lindars, “Torah in Deuteronomy,” in Words and Meanings: Essays Presented to David Winton Thomas (eds. P. R. Ackroyd and B. Lindars; Cambridge: Cambridge University Press, 1968), 117–36; and the standard lexica and theological dictionaries. Note also James W. Watts, Reading Law: The Rhetorical Shaping of the Pentateuch (BS 59; Sheffield: Sheffield Academic Press, 1999), 157–61, who concludes “[t]he English word that best expresses the idea of an independently normative Torah is ‘Bible’” (160). For his part, McBride believes that understanding תורה as teaching or instruction “has promoted a much too facile understanding of Deuteronomy…as essentially a didactic, moralizing, or homiletical work” (“Polity of the Covenant People,” 65). For a book-length treatment, see Peter T. Vogt, Deuteronomic Theology and the Significance of Torah (Winona Lake: Eisenbrauns, 2006).

44 Olson, Deuteronomy and the Death of Moses, 11. At this point Olson nods toward those theorists who have posited wisdom influence to account for Deuteronomy's emphasis on teaching and learning, above all Weinfeld, Deuteronomy and the Deuteronomic School, 244–319; and idem, Deuteronomy 1–11, 62–65. See also C. Brekelmans, “Wisdom Influence in Deuteronomy,” in A Song of Power and the Power of Song: Essays on the Book of Deuteronomy (ed. Duane L. Christensen; SBTS 3; Winona Lake: Eisenbrauns, 1993), 123–134; and, more recently, Karin Finsterbusch, Weisung für Israel (FAT 44; Tübingen: Mohr Siebeck, 2005). For more on didacticism in Deuteronomy, see Johannes Taschner, Die Mosereden im Deuteronomium: Eine kanonorientierte Untersuchung (FAT 59; Tübingen: Mohr Siebeck, 2008).

45 Olson, Deuteronomy and the Death of Moses, 10–11 (his emphasis).

46 Ibid., 11.

47 Ibid. and n. 10, which highlights 17 instances of the word “teach” (למד). Miller (“Constitution or Instruction?” 262) observes that למד does not appear elsewhere in the Pentateuch. For a full study, see Finsterbusch, Weisung für Israel.

48 Olson, Deuteronomy and the Death of Moses, 11.

49 Ibid., 11–14.

50 Ibid., 12–13.

51 See, provisionally, Berard L. Marthaler, The Catechism Yesterday and Today: The Evolution of a Genre (Collegeville: Liturgical, 1995). For the Old Testament proper, cf. Albert de Pury and Thomas Römer, “Mémoire et Catéchisme dans l'Ancien Testament,” in Histoire et Conscience Historique dans les Civilizations du Proche-Orient Ancien: Actes du Colloque de Cartigny 1986 (Leuven: Peeters, 1989), 81–92.

52 Among other things, these well known catechisms are often dominated by the question and answer format. But see Marthaler, who writes: “The popular image presents the catechism as a series of questions and answers compiled for the purpose of religious instruction. A history of the genre…paints a different picture….The genre came to include a variety of works of different lengths, styles, and purposes” (The Catechism Yesterday and Today, 5). Insofar as this remark is primarily about different works that are called “catechisms” and not different works within one and the same catechism, however, the judgment made above can stand. Even so, Marthaler's work demonstrates the many different functions and “complex mission” that “even simple catechisms often had”; moreover, what he deems the “latest stage in the development of the genre,” the Catechism of the Catholic Church, promulgated by John Paul II in 1992, is clearly a complicated text that “shattered the popular image of the catechism as a series of questions and answers whose principal, even sole purpose was the religious instruction of children” (ibid., 6; see further 143–62).

53 See, e.g., Patrick D. Miller, “That the Children May Know: Children in Deuteronomy,” in The Child in the Bible (eds. Marcia J. Bunge, Beverly Roberts Gaventa, and Terence E. Fretheim; Grand Rapids: Eerdmans, 2008), 45–62; also idem, “Constitution or Instruction?” 265–66; and David G. Firth, “Passing on the Faith in Deuteronomy,” in Firth and Johnston, eds., Interpreting Deuteronomy, 157–76.

54 Or with regard to catechetical form (cf. above). Of course one might imagine that the statutes and ordinances are the catechetical content within the exhortation of the parenetic material (see further below on McBride's understanding of the book's frame), or one might appeal to the Decalogical structure of chapters 12–26 for support here, though not all would agree with such an analysis of those chapters (see above). But note Jean Louis Ska, “Biblical Law and the Origins of Democracy,” in The Ten Commandments: The Reciprocity of Faithfulness (ed. William P. Brown; Louisville: Westminster John Knox, 2004), 158, who states, with reference to the importance of the Decalogue to Deuteronomy: “it could be said that the Decalogue ‘served as a sort of Israelite catechism’” (“Biblical Law and the Origins of Democracy,” 158). Shin Wook Hur has argued that the central legislation in Deuteronomy is highly rhetorical in terms of persuasive appeal and memorable artistry though he demurs on the question of decalogical structure (“The Rhetoric of the Deuteronomic Code: Structure and Devices,” Ph.D. diss., Emory University, 2013).

55 Miller, “Constitution or Instruction?” 260.

56 Ibid.

57 Ibid., 262. See further ibid., 262–63 for a listing of several of the most important rhetorical features.

58 Ibid., 263 (emphasis added). Miller depends, in part, on Georg Braulik's essay, “‘Conservative Reform’: Deuteronomy from the Perspective of the Sociology of Knowledge,” OTE 12 (1999): 13–32, for this combination.

59 Miller, “Constitution or Instruction?” 264.

60 See ibid., 264 and nn. 43–44, relying on David Weiss Halivni, Midrash, Mishnah, and Gemara: The Jewish Predilection for Justified Law (Cambridge: Harvard University Press, 1986), 5. Posidonius is quoted by Seneca in Letter 94.38, which is translated by Halivni as follows: “I censor Plato, because he added justifications to the laws. Let the law be like the voice that reaches us from heaven. Command and do not argue. Tell me what I have to do. I do not want to learn. I want to obey.” Halivni then observes wryly: “Plato's argument for persuasion in law was apparently not very persuasive” (ibid.). For Plato's remarks, see Laws IV:722d–723b, translated by A. E. Taylor, “Laws,” in The Collected Dialogues of Plato (eds. Edith Hamilton and Huntington Cairns; Bollinger Series 71; Princeton: Princeton University Press, 1989), 1312–13; see also the next note.

61 Miller, “Constitution or Instruction?” 264. See further 264–65 and n. 45 with reference to Plato's Laws IV:718b. See Taylor, “Laws,” 1308–1309 for a translation, and, more generally on Greek law and Deuteronomy, see Anselm C. Hagedorn, Between Moses and Plato: Individual and Society in Deuteronomy and Ancient Greek Law (FRLANT 204; Göttingen: Vandenhoeck & Ruprecht, 2004). For motivation clauses in biblical law, esp. Deuteronomy, see Rifat Sonsino, Motive Clauses in Hebrew Law (SBLDS 45; Chico: Scholars Press, 1980).

62 Miller, “Constitution or Instruction?” 267.

63 Ibid., 263 (emphasis added).

64 Ibid., 265.

65 Ibid.

66 See Brent A. Strawn, “Keep/Observe/Do – Carefully – Today! The Rhetoric of Repetition in Deuteronomy,” in A God So Near: Essays on Old Testament Theology in Honor of Patrick D. Miller (eds. Brent A. Strawn and Nancy R. Bowen; Winona Lake: Eisenbrauns, 2003), 215–40 for the rhetorical function (focusing) of heavily repeated elements in Deuteronomy. Note also idem, “Slaves and Rebels: Inscription, Identity, and Time in the Rhetoric of Deuteronomy,” in Sepher Torath Mosheh: Studies in the Composition and Interpretation of Deuteronomy (eds. Daniel I. Block and Richard M. Schultz; Peabody, MA: Hendrickson, 2017), 161–91.

67 The status of 32:44(45)–47 and 32:48–52 are often queried as redactional additions or deemed to stem from a different source(s). See, inter alia, Martin Noth, A History of Pentateuchal Traditions (trans. Bernard W. Anderson; Atlanta: Scholars Press, 1981), 275–76; Anthony F. Campbell and Mark A. O'Brien, Unfolding the Deuteronomistic History: Origins, Upgrades, Present Text (Minneapolis: Fortress, 2000), 96.

68 See also Polzin, “Reporting Speech”; Kilchör, Mosetora und Jahwetora; Taschner, Die Mosereden im Deuteronomium; etc. Miller (“Constitution or Instruction?” 257) observes that the identification of “the historical locus” for the book, whatever that may be, is left unaddressed by McBride. Note, e.g., how McBride speaks of “the whole Book of Deuteronomy” in “its received form” (“Polity of the Covenant People,” 66), and his remark that “whatever earlier or independent function the book's outer frame may once have had, it now serves admirably to highlight the character of the central document as a constitution” (ibid., 68).

69 Olson, Deuteronomy and the Death of Moses, 7.

70 The diachronic issues will probably never be finally resolved – not to every scholars' satisfaction, at any rate – and so one cannot indefinitely await their final (non)resolution to move forward with larger, equally important and more synchronic interpretive matters, even if these latter are to some degree interdependent with the diachronic ones. Cf. Polzin's reflections in a similar vein in “Reporting Speech,” 198–99.

71 See now Miller, “Constitution or Instruction?” 261: “if Deuteronomy is to be understood as the polity for the people of Israel, specifically as that centers in the Decalogue and the Deuteronomic Code, in a sense one can argue that the constitution per se is the Decalogue. The Deuteronomic Code specifies and illustrates the force and meaning of these constitutional guidelines in all spheres of Israel's life, much as contemporary law in the United States is developed out of the guidelines in the U.S. Constitution.”

72 Brent A. Strawn, “Deuteronomy,” in Theological Bible Commentary (eds. Gail R. O'Day and David L. Petersen; Louisville: Westminster John Knox, 2009), 65 (emphasis added), with clear and intentional allusions to Garry Wills, Lincoln at Gettysburg: The Words That Remade America (New York: Simon & Schuster, 1992), 37–38 (cited in §4 below). I first learned of Wills' work from a public lecture by Richard B. Hays (sometime in 2000) who related it to the Apostle Paul. For Hays' use of Wills in a Gospel context, see Richard B. Hays, “The Liberation of Israel in Luke-Acts: Intertextual Narration as Countercultural Practice,” in Reading the Bible Intertextually (eds. Richard B. Hays, Stefan Alkier, and Leroy Huizenga; Waco, TX: Baylor University Press, 2009), 101–17.

73 See, e.g., Kilchör's analysis (Mosetora und Jahwetora, 333–35) which admits that a decent percentage of the shared material in Deuteronomy and other portions of the Pentateuch could be reversed according to direction of dependence: 50 verses out of 340 (14.7%) of the book of Deuteronomy, or, minus the Deuteronomic Sondergut, 50 verses out of 160 (31.25%).

74 E.g., that chaps. 12–18 seem old, that the framework is later than the central code, that chaps. 1–3 are later than 5–11, etc. Even these are not universally accepted, however!

75 Richard D. Nelson, Deuteronomy: A Commentary (OTL; Louisville: Westminster John Knox, 2002), 8.

76 A classic treatment is Alastair Fowler, Kinds of Literature: An Introduction to the Theory of Genres and Modes (Oxford: Clarendon, 1982); see also Brian Paltridge, Genre, Frames and Writing in Research Settings (Amsterdam: John Benjamins, 1997). Within biblical studies, see Carol A. Newsom, “Spying out the Land: A Report from Genology,” in Seeking Out the Wisdom of the Ancients: Essays Offered to Honor Michael V. Fox on the Occasion of His Sixty-Fifth Birthday (eds. Ronald L. Troxel, Kelvin G. Friebel, and Dennis R. Magary; Winona Lake: Eisenbrauns, 2005), 437–50; eadem, “Pairing Research Questions and Theories of Genre: A Case Study of the Hodayot,” DSD 17 (2010): 270–88; and Harry P. Nasuti, Defining the Sacred Songs: Genre, Tradition and the Post-Critical Interpretation of the Psalms (JSOTSup 218; Sheffield: Sheffield Academic Press, 1999).

77 See, e.g., Eissfeldt, The Old Testament, 220–23; and von Rad's brief rejoinder (Deuteronomy, 13).

78 Jeffrey Stackert, Rewriting the Torah: Literary Revision in Deuteronomy and the Holiness Legislation (FAT 52; Tübingen: Mohr Siebeck, 2007), esp. 209–25. See also idem, “The Holiness Legislation and Its Pentateuchal Sources: Revision, Supplementation, and Replacement,” in The Strata of the Priestly Writings: Contemporary Debate and Future Discussions (eds. Sarah Shectman and Joel S. Baden; AThANT 95; Zürich: Theologischer Verlag Zürich, 2009), 187–204. Note also the joint essay by Levinson and Stackert, “Between the Covenant Code and Esarhaddon's Succession Treaty: Deuteronomy 13 and the Composition of Deuteronomy,” JAJ 3 (2013): 123–40.

79 Levinson, Deuteronomy and the Hermeneutics of Legal Innovation, 3.

80 Ibid., 4; cf. 20–21.

81 Ibid., 3–4.

82 Ibid., 5–6. Cf. Polzin, “Reporting Speech,” esp. 209–10, who traces a not unrelated dynamic with reference to voicing in Deuteronomy.

83 Levinson, Deuteronomy and the Hermeneutics of Legal Innovation, 15 (emphases added).

84 Ibid.

85 Ibid., 20.

86 Ibid.

87 Ibid., 22.

88 Ibid., 16.

89 Ibid., 6–8, 11–12.

90 See ibid., 9–10.

91 Above all, perhaps, in Kilchör, Mosetora und Jahwetora, passim, but esp. 14–17. See also §3.2 below.

92 Levinson, Deuteronomy and the Hermeneutics of Legal Innovation, 145. Note there: “Deuteronomic Torah as exclusive arbiter”; “Deuteronomy silenced competing – and prior – claims to cultural and religious authority.”

93 Polzin, “Reporting Speech,” 202 n. 13.

94 Levinson, Deuteronomy and the Hermeneutics of Legal Innovation, 150.

95 Ibid., 152.

96 Ibid., 16.

97 Ibid., 150.

98 Eckart Otto, “The Pre-exilic Deuteronomy as a Revision of the Covenant Code,” in Kontinuum und Proprium: Studien zur Sozial- und Rechtsgeschichte des Alten Orients und des Alten Testaments (OBC 8; Wiesbaden: Harrassowitz, 1996), 112–22 (115). In this context he specifically cites Deut 19:2–13's revision of Exod 21:12–14.

99 Ibid., 116. Note also Eckart Otto, “The History of the Legal-Religious Hermeneutics of the Book of Deuteronomy from the Assyrian to the Hellenistic Period,” in Law and Religion in the Eastern Medi terranean: From Antiquity to Early Islam (eds. Anselm C. Hagedorn and Reinhard G. Kratz; Oxford: Oxford University Press, 2013), 211–50.

100 Nelson, Deuteronomy, 5.

101 E.g., Joshua Berman, “Supersessionist or Complementary? Reassessing the Nature of Legal Revision in the Pentateuchal Law Collections,” JBL 135 (2016): 201–22; idem, Inconsistency in the Torah, 171–91. See also, inter alia, von Rad, Deuteronomy, 13; Terence E. Fretheim, “Law in the Service of Life: A Dynamic Understanding of Law in Deuteronomy,” in A God So Near: Essays on Old Testament Theology in Honor of Patrick D. Miller (eds. Brent A. Strawn and Nancy R. Bowen; Winona Lake: Eisenbrauns, 2003), 183–200, esp. 194–96; and Bill T. Arnold, “Deuteronomy as the Ipsissima Vox of Moses,” JTI 4 (2010): 53–74, esp. 71: “Rather than considering the deuteronomic reformer as subversively transforming or usurping the older text, this approach puts into proper perspective the great value of the past, the prized tradition of the older text, which is acknowledged as authoritative and unassailable. The goal is not to refute and replace but to supplement and update.” By “this approach,” Arnold is referring to the phenomenon of literary imitation and how imitation maintains and perpetuates continuity with the past and how it is also “a sign of erudition…the author's way of leaving his mark on the tradition for future generations” (ibid.). For more on literary imitation, see John Van Seters, “Creative Imitation in the Hebrew Bible,” SR 29 (2000): 395–409; and Gary N. Knoppers, “The Synoptic Problem? An Old Testament Perspective,” BBR 19 (2009): 11–34.

102 This is a major thrust of Kilchör's argument in Mosetora und Jahwetora. Note also, far more briefly, Fretheim, “Law in the Service of Life,” 196 n. 22 who states that Levinson's “judgments on the prior tradition seem unlikely and, in any case, the final form of the canon declares otherwise.”

103 Levinson, Deuteronomy and the Hermeneutics of Legal Innovation, 153.

104 The issues in this case, and others in the framework of Deuteronomy, are complex with regard to literary priority. For discussion, see Nathan MacDonald, “Edom and Seir in the Narratives and Itineraries of Numbers 20–21 and Deuteronomy 1–3,” in Deuteronomium–Tora für eine neue Generation (eds. Georg Fischer, Dominik Markl, and Simone Paganini; BZAR 17; Wiesbaden: Harrasowitz, 2011), 83–103; Eckart Otto, “The Books of Deuteronomy and Numbers in One Torah: The Book of Numbers Read in the Horizon of the Postexilic Fortschreibung in the Book of Deuteronomy: New Horizons in the Interpretation of the Pentateuch,” in Torah and the Book of Numbers (eds. Christian Frevel, Thomas Pola, and Aaron Schart; FAT 2/62; Tübingen: Mohr Siebeck, 2013), 393–98; and Taschner, Die Mosereden im Deuteronomium.

105 Newsom, “Pairing Research Questions and Theories of Genre,” 273. This is but one of six common ways to think about genre that she delineates.

106 Ibid., 275–76.

107 Wills, Lincoln at Gettysburg, 19–20. For a brief discussion of the events immediately leading up to and including the GA, see Doris Kearns Goodwin, Team of Rivals: The Political Genius of Abraham Lincoln (New York: Simon and Schuster, 2005), 583–87, 853–54.

108 Wills, Lincoln at Gettysburg, 27.

109 This is the so-called Bliss text, the last from Lincoln's own hand and the one usually printed and cited – see ibid., 263 and 304 n. 70. For the text history of the GA, see ibid., 191–203, 261.

110 Ibid., 38. Wills' understanding of what is taking place in the GA bears some affinity with Harold Bloom's notion of “misprision” or “strong misreading,” which has to do, in no small way, with revisionism. See his A Map of Misreading (new ed.; Oxford: Oxford University Press, 2003), esp. 3–6.

111 Wills, Lincoln at Gettysburg, 38 and 39, respectively.

112 Willmoore Kendall, Willmoore Kendall Contra Mundum (ed. Nellie D. Kendall; New Rochelle, NY: Arlington House, 1971), 69 (emphases added), cited in Wills, Lincoln at Gettysburg, 39. Cf. also Kendall, Willmoore Kendall, 260, 580–81, and note the comments by Jeffrey Hart in his introduction (ibid., 17–20).

113 Wills, Lincoln at Gettysburg, 39.

114 Ibid., 37–38 (his emphases). Cf. Goodwin, Team of Rivals, 587: “Lincoln had translated the story of his country and the meaning of the war into words and ideas accessible to every American. The child [i.e., Lincoln himself] who would sleeplessly rework his father's yarns into tales comprehensible to any boy had forged for his country an ideal of its past, present, and future that would be recited and memorized by students forever.”

115 Wills, Lincoln at Gettysburg, 20.

116 Ibid., 120.

117 Ibid., 120: “Lincoln was able to achieve the loftiness, ideality, and brevity of the Gettysburg Address because he had spent a good part of the 1850s repeatedly relating all the most sensitive issues of the day to the Declaration's supreme principle. If all men are created equal, they cannot be property. They cannot be ruled by owner-monarchs. They must be self-governing in the minimal sense of self-possession. Their equality cannot be denied if the nation is to live by its creed, and voice it, and test it, and die for it. All these matters are now contained in the pregnant formulae of the Address. Nothing more specific needs to be mentioned, because a nation free to proclaim its ideal is freed, again, to approximate that ideal over the years, in ways that run far beyond any specific or limited reforms, even one so important as emancipation. A return to the ideal is an escape from distracting particulars, a recovery of the long-term tasks of equality and self-government” (first emphasis original, second added). Cf. Goodwin, Team of Rivals, 585: “Though he had had but a brief time to prepare the address, he had devoted intense thought to his chosen theme for nearly a decade … During his debates with Stephen Douglas, Lincoln had frequently reminded his audiences of the far-reaching promises contained in the Declaration of Independence. Someday, he said, ‘all this quibbling about … this race and that race and the other race being inferior’ would be eliminated, giving truth to the phrase ‘all men are created equal.’”

118 See Brent A. Strawn (unsigned), “Gary Wills' Lincoln at Gettysburg,” in Teaching the Bible Through Popular Culture and the Arts (eds. Mark Roncace and Patrick Gray; SBLRBS 53; Atlanta: Society of Biblical Literature, 2007), 320–21 (321); cf. Strawn, “Deuteronomy,” 65 (cited in §2.5 above).

119 Fretheim, “Law in the Service of Life,” 197 - a change facilitated, perhaps, by the Deuteronomic wording itself.

120 See Olson, Deuteronomy and the Death of Moses, 126–58. In part on the basis of מלבד (28:69 [29:1]), Olson explicitly states: “The Moab covenant does not replace the commandments, statutes, and ordinances of Horeb but supplements them and places them in a broader and deeper understanding of the relationship between God and the people of God.”

121 See Strawn, “Deuteronomy,” 73; Olson, Deuteronomy and the Death of Moses, 119–23. Consider Wills, Lincoln at Gettysburg, 37, too, with reference to Deuteronomy 28–29: “The tragedy of macerated bodies, the many bloody and ignoble aspects of this inconclusive encounter, are transfigured in Lincoln's rhetoric, where the physical residue of battle is volatilized as the product of an experiment testing whether a government can maintain the proposition of equality” (his emphases).

122 As J. G. McConville, Deuteronomy (Apollos Old Testament Commentary 5; Downers Grove: InterVarsity, 2002), 10, has put it, wherever one goes in the Old Testament, “Deuteronomy is always somehow there.” This is especially true for 2 Kings 22–23 and the DtrH writ large (see, inter alia, Polzin, “Reporting Speech”). Other texts could be added but many are debated as to their relationship with Deuteronomy. See, e.g., the essays in Linda S. Schearing and Steven L. McKenzie, Those Elusive Deuteronomists: The Phenomenon of Pan-Deuteronomism (JSOTSup 268; Sheffield: Sheffield Academic Press, 1999).

123 See Olson, Deuteronomy and the Death of Moses, esp. 126–58.

124 CUSA, Article V: “The Congress…shall propose Amendments to this Constitution, or…the several States, shall call a Convention for proposing Amendments, which, in either Case, shall be valid to all Intents and Purposes, as Part of this Constitution, when ratified …” The first Ten Amendments (the Bill of Rights) were ratified very soon after the CUSA itself, on December 15, 1791.

125 See Patrick D. Miller, “The Most Important Word: The Yoke of the Kingdom,” Iliff Review 41 (1984): 17–29.

126 McBride, “Polity of the Covenant People,” 64, 77. See ibid., 63 n. 4 for Deuteronomy's political import in the “formative era of American constitutionalism” as revealed in election sermons collected in Conrad Cherry, God's New Israel: Religious Interpretations of American Destiny (Englewood Cliffs: Prentice-Hall, 1971), 67–105. See also George E. Connor, “Covenants and Criticism: Deuteronomy and the American Founding,” BTB 32 (2002): 4–10, with literature. Connor notes that in America during the period of 1765–1805, judging on the basis of citations in published political writings (he depends on a prior work by Donald Lutz), Deuteronomy was the most cited book (4); he goes on to remark that “[a]t the core of American constitutionalism lies the First-Testament concept of covenant” (8). See further, and more generally, Geoffrey P. Miller, The Ways of a King: Legal and Political Ideas in the Bible (JAJSup 7; Göttingen: Vandenhoeck & Ruprecht, 2011); Bruce Feiler, America's Prophet: Moses and the American Story (New York: William Morrow, 2009), esp. 92–93; The Judeo-Christian Tradition and the U.S. Constitution: Proceedings of a Conference at the Annenberg Research Institute, November 16–17, 1987 (JQRSup; Winona Lake: Eisenbrauns, 1989); and Jaroslav Pelikan, Interpreting the Bible and the Constitution (New Haven: Yale University Press, 2004); note also H. Richard Niebuhr, The Kingdom of God in America (New York: Harper & Row, 1937). For other studies focused on the biblical and ancient Near Eastern material, see Ska, “Biblical Law and the Origins of Democracy,” 146–58; Robert Gordis, “Primitive Democracy in Ancient Israel,” in idem, Poets, Prophets, and Sages: Essays in Biblical Interpretation (Bloomington: Indiana University Press, 1971), 45–60; Norbert Lohfink, “Distribution of the Functions of Power: The Laws in Deuteronomy That Governed Ministries, a Constitution in Terms of Power Distribution, and Catholic Canon Law,” in idem, Great Themes from the Old Testament (trans. Ronald Walls; Edinburgh: T & T Clark, 1982), 55–75; Levinson, “The Right Chorale”, 52–86; Reinhard Müller, “Israel's King as Primus Inter Pares: The ‘Democratic’ Re-conceptualization of Monarchy in Deut 17:14-20,” in Leadership, Social Memory, and Judean Discourse in the Fifth–Second Centuries BCE (eds. Diana V. Edelman and Ehud Ben Zvi; Sheffield: Equinox, 2016), 57–76; and Daniel E. Fleming, Democracy's Ancient Ancestors: Mari and Early Collective Governance (Cambridge: Cambridge University Press, 2004), esp. 235–41. It was only after my own arguments about the CUSA were developed and presented did I come across the comments by Berman, Inconsistency in the Torah, 193–96; and R. W. L. Moberly, Old Testament Theology: Reading the Hebrew Bible as Christian Scripture (Grand Rapids: Baker Academic, 2013), 161–62, both of which also make instructive comparative appeals to the CUSA.

127 McBride, “Polity of the Covenant People,” 63–64; the essay was first published in 1987.

128 Cf. Mehrdad Payandeh, “Constitutional Aesthetics: Appending Amendments to the United States Constitution,” Brigham Young University Journal of Public Law 25 (2011): 87–130. See there and Berman, Inconsistency in the Torah, 193–94, for how such an approach (championed by Robert Sherman) differs from an approach (championed by James Madison) that would have amended the CUSA by directly changing the original text.

129 Cf. Akhil Reed Amar, “The Bill of Rights as a Constitution,” Yale Law Journal 100 (1991): 1131–1210.

130 An obvious example of the latter would be the preservation of the Eighteenth Amendment, ratified January 16, 1919, which prohibited “the manufacture, sale, or transportation of intoxicating liquors within, the importation thereof into, or the exportation thereof from the United States and all territory subject to the jurisdiction thereof for beverage purposes,” even though (and after) it was repealed by the Twenty-First Amendment, ratified December 5, 1933. Note, furthermore, that the Eighteenth Amendment could be re-enforced if the Twenty-First was ever to be repealed. Berman, Inconsistency in the Torah, 193, also mentions the Eighteenth and Twentieth-First (which he erroneously refers to as the Twentieth) Amendments.

131 In addition to what follows, see also Akhil Reed Amar, America's Constitution: A Biography (New York: Random House, 2005); and idem, America's Unwritten Constitution: The Precedents and Principles We Live By (New York: Basic Books, 2012).

132 Akhil Reed Amar, “Intratextualism,” Harvard Law Review 112 (1989–1999): 747–827 (748).

133 Ibid., 748.

134 Ibid., 749; see further 749–88.

135 Ibid., 787–88.

136 Ibid., 788.

137 See esp. ibid., 791–95, on intratextualism as philology (using the CUSA as a dictionary), pattern recognition (using the CUSA as a concordance), and principle-interpolation (using the CUSA as a rulebook).

138 Ibid., 789.

139 Ibid. (his emphasis).

140 Ibid., 794.

141 Ibid., 789.

142 Ibid. (his emphasis).

143 Ibid., 790.

144 Ibid., 793; further 794.

145 Ibid., 795 (his emphasis).

146 Ibid. (his emphasis).

147 Cf. Berman, Inconsistency in the Torah, 194–95.

148 Amar, “Intratextualism,” 795 (his emphasis).

149 Ibid., 795–96.

150 See ibid., 799–802: is intratextualism too clever, cute, mystical? Does it deal only with possible readings? Is it too self-referential, “even autistic,” and not sufficiently intertextual (see next note)?

151 See ibid., 795 n. 186 for Amar's distinction betwen intratextualism and intertextualism. The latter involves comparisons between the CUSA and other documents.

152 Berman, Inconsistency in the Torah, 193.

153 Reva B. Siegel, “She the People: The Nineteenth Amendment, Sex Equality, Federalism, and the Family,” Harvard Law Review 115 (2001–2002): 947–1046.

154 The multi-volume work of Bruce Ackerman, We the People, Vol. 1: Foundations (Cambridge: Belknap, 1991), Vol. 2: Transformations (Cambridge: Belknap, 2000), and Vol. 3: The Civil Rights Revolution (Cambridge: Belknap, 2014), which pays attention to socio-historical realities and how these have (unofficially) amended the constitution is not unrelated at this point. A similar argument is found in David A. Strauss, “The Irrelevance of Constitutional Amendments,” Harvard Law Review 114 (2001): 1457–1505. Note the response to Ackerman's work offered by Randy E. Barnett, “We the People: Each and Every One,” Yale Law Journal 123 (2014): 2576–2614, which stresses that amendment can only be done, officially, in formally legal ways.

155 Siegel calls her argument “a synthetic reading of the Fourteenth and Nineteenth Amendments that would bring to the interpretation of the Equal Protection Clause a knowledge of the family-based status order through which women were disfranchised for most of this nation's history and from which they were emancipated after over a half century of struggle” (“She the People,” 952; cf. 1024, 1039). Like Amar, Siegel also uses the language of linking and notes how that produces newer, and better, interpretation: “grounding sex discrimination doctrine in the developments that link the Fourteenth and Nineteenth Amendments orients doctrine to our constitutional and common law history in different ways than does the race/gender analogy on which sex discrimination doctrine presently rests” (ibid., 952; cf. 1024, 1039, 1041).

156 See, e.g., ibid., 1040, 1045–46.

157 See ibid., 950 and n. 2s, 953, 1006–22.

158 Ibid., 1042.

159 Ibid.

160 Cf., e.g., Shemaryahu Talmon, “The ‘Comparative Method’ in Biblical Interpretation -Principles and Problems,” in Essential Papers on Israel and the Ancient Near East (ed. Frederick E. Greenspahn; New York: New York University, 1991), 381–419, for the importance of geographical proximity and historical propinquity in comparative method.

161 See Newsom, “Pairing Research Questions and Theories of Genre,” 275.

162 Amar, “Intratextualism,” 792.

163 As one further example of their relatability, however, perhaps one should note readings of the CUSA that treat it as a kind of “Bible.” See Thomas C. Grey, “The Constitution as Scripture,” Stanford Law Review 37 (1984): 1–25; and Sanford Levinson, Constitutional Faith (rev. ed.; Princeton: Princeton University Press, 2011).

164 For Levinson and Stackert, see above. For David P. Wright, see his extensive treatment in Inventing God's Law: How the Covenant Code of the Bible Used and Revised the Laws of Hammurabi (Oxford: Oxford University Press, 2009). A response to an earlier iteration of Wright's argument may be found in Bruce Wells, “The Covenant Code and Near Eastern Legal Traditions: A Response to David P. Wright,” Maarav 13 (2006): 85–118.

165 See Jeffrey H. Tigay, The Evolution of the Gilgamesh Epic (Philadelphia: University of Pennsylvania Press, 1982); idem, “The Evolution of the Pentateuchal Narratives in the Light of the Evolution of the Gilgamesh Epic,” in Empirical Models for Biblical Criticism (ed. Jeffrey H. Tigay; repr. ed.; Eugene: Wipf and Stock, 2005 [orig: 1985]), 21–52. Cf. also Juha Pakkala, God's Word Omitted: Omissions in the Transmission of the Hebrew Bible (FRLANT 251; Göttingen: Vandnhoeck & Ruprecht, 2013), 54–58, on Gilgamesh, and 58–63 which interacts with Hans Jürgen Tertel, Text and Transmission: An Empirical Model for the Literary Development of Old Testament Narratives (BZAW 221; Berlin: de Gruyter, 1994) and Sara Milstein's dissertation, now published as Tracking the Master Scribe. For an intriguing alternative, see Seth L. Sanders, “What if There Aren't Any Empirical Models for Pentateuchal Criticism?” in Contextualizing Israel's Sacred Writings: Ancient Literacy, Orality, and Literary Production (ed. Brian B. Schmidt; AIL 22; Atlanta: SBL, 2015), 281–304.

166 Cf. the cautions in Tigay, “The Evolution of the Pentateuchal Narratives,” 51. Even so, the place of Gilgamesh in the scribal curriculum is not unrelated to Olson's interest in catechesis.

167 Kitchen and Lawrence, Treaty, Law and Covenant, 3:261 state only: “such dependence on one isolated text (and text-history) is fallacious. The more recent near-definitive edition of the Babylonian Gilgamesh epic by George shows a more continuous transmissional tradition (with offshoots in Assyria and elsewhere in the ancient Near East) than in Tigay's view. In particular there is no evidence to be found here for laying rival MSS side by side, then weaving them into each other into one conflate text.” Note that at this point Kitchen and Lawrence cite A. R. George, The Babylonian Gilgamesh Epic: Introduction, Critical Edition and Cuneiform Texts (2 vols.; Oxford: Oxford University Press, 2003), 1:17–33, but see ibid., 29 n. 77 and 39 n. 106 where George cites Tigay's work approvingly.

168 In this case, the commentary literature might be more useful to study. See Eckart Frahm, Babylonian and Assyrian Text Commentaries: Origins of Interpretation (GMTR 5; Münster: Ugarit-Verlag, 2011).

169 Tigay, “The Evolution of the Pentateuchal Narratives,” 43.

170 Ibid.; see further Tigay, The Evolution of the Gilgamesh Epic, 127, 130–38.

171 Tigay, “The Evolution of the Pentateuchal Narratives,” 44.

172 Ibid. (emphasis added); see further Tigay, The Evolution of the Gilgamesh Epic, 108–109.

173 Tigay, “The Evolution of the Pentateuchal Narratives,” 44–45. Tigay quotes Moshe Greenberg, “The Redaction of the Plague Narrative in Exodus,” in Near Eastern Studies in Honor of William Foxwell Albright (ed. Hans Goedicke; Baltimore: Johns Hopkins University Press, 1971), 243–52 (245) for the same process in the Pentateuch: “plasticity and integrative capability are characteristic of early stages of transmission; rigidity and unassimilability, characteristic of the quasi-canonical statue of the material in the time of the redaction.”

174 See Tigay, “The Evolution of the Pentateuchal Narratives,” 45–46. Note, however, his further remark: “The differences that remain [between the rest of the epic and Gilgamesh XI] are themselves not serious and may not even have been noticed by the editor or his readers. Still, their presence in the epic is due not simply to their unobtrusiveness but to the fact that at the time when the flood story was added to the epic its text was no longer being revised very much. That even blatant contradictions would also have been tolerated at this stage seems indicated by the presence in the epic of Tablet XII, which opens with Enkidu still alive, though in Tablet VII he had died. However, since we cannot presently document the lateness of this tablet in the epic, it remains theoretically possible that this contradiction was introduced into the epic much earlier. If so, the fact that it was introduced without being harmonized with the rest of the epic would make it an exception to the pattern being discussed [viz., that the inconsistencies are due to late integration of this material into Gilgamesh]” (46).

175 Ibid., 51.

176 See Victor Avigdor Hurowitz, “Hammurabi in Mesopotamian Tradition,” in “An Experienced Scribe Who Neglects Nothing”: Ancient Near Eastern Studies in Honor of Jacob Klein (eds. Yitschak Sefati et al.; Bethesda: CDL Press, 2005), 497–532, esp. 501–506.

177 Ibid., 505.

178 Ibid., 503. See also the literature cited there in nn. 11–12.

179 For brief comments on this issue, see, e.g., Raymond Westbrook and Bruce Wells, Everyday Law in Biblical Israel: An Introduction (Louisville: Westminster John Knox, 2009), 3; Bruce Wells, “Law and Practice,” in A Companion to the Ancient Near East (ed. Daniel C. Snell; Oxford: Blackwell, 2005), 199–211, esp. 202; and Raymond Westbrook, “The Character of Ancient Near Eastern Law,” in A History of Ancient Near Eastern Law (2 vols.; ed. Raymond Westbrook; HdO 1/72; Leiden: Brill, 2003), 1:1–90 (71). For modern jurisprudence, cf. the curious essay by Paul R. Baier, Constitution as Code (Lake Mary, FL: Vandeplos Publishing, 2015) which makes similar arguments about the CUSA – namely that it is not binding within itself so much as via juridical decision and implementation (“by the constitution but beyond the constitution,” is his repeated motif) – though Baier continues to retain the language of “code.” His use suggests that “code” could perhaps be rehabilitated for biblical and ancient Near Eastern law as well. Note also Martha T. Roth, “The Law Collection of King Hammurabi: Toward an Understanding of Codification and Text,” in La codification des lois dans l'Antiquité: Acts du Colloque de Strasbourg 27–29 novembre 1997 (ed. Edmond Lévy; Paris: De Boccard, 2000), 9–31.

180 Hurowitz, “Hammurabi in Mesopotamian Tradition,” 503–504. See also Martha T. Roth, Law Collections from Mesopotamia and Asia Minor (2nd ed.; SBLWAW 6; Atlanta: Scholars, 1997), 5–6 for an Old Babylonian letter which mentions a stela (narû) on which a wage table of sorts was inscribed, which might be compared to LH §§273–74. She concludes that “it is entirely possible that the writer referred to the Laws of Hammurabi,” or another legal collection, and so this letter “confirms the publicity and publication value of the law collection in its contemporary context” (6). Cf. further Klaas R. Veenhof, “‘In Accordance with the Words of the Stele’: Evidence for Old Assyrian Legislation,” Chicago-Kent Law Review 70 (1995): 1717–44.

181 Hurowitz, “Hammurabi in Mesopotamian Tradition,” 504.

182 Ibid.

183 For a brief overview, see Eckart Otto, “Laws of Hammurapi,” in The Oxford Encyclopedia of the Bible and Law (2 vols.; ed. Brent A. Strawn; Oxford: Oxford University Press, 2015), 1:500–508. Note that LH's possible relationship to earlier texts may well be germane to the topic at hand. For two studies, see Joseph Fleishman, “Continuity and Change in Some Provisions of the Code of Hammurabi's Family Law,” in Yitschak Sefati et al., eds., “An Experienced Scribe Who Neglects Nothing”, 480–96; and Barry L. Eichler, “Examples of Restatement in the Laws of Hammurabi,” in Mishneh Torah: Studies in Deuteronomy and Its Cultural Environment in Honor of Jeffrey H. Tigay (eds. Nili Sacher Fox, David A. Glatt-Gilad, and Michael J. Williams; Winona Lake: Eisenbrauns, 2009), 365–400. Eichler examines the relationship between LH and the Laws of Eshnunna (LE). On the basis of a number of parallels between LH and LE, Eichler states that “it is certain that the compiles of the Laws of Hammurabi had direct access either to the Laws of Eshnunna or to a common scholastic tradition reflected in both compositions” (366). His preferred term for LH's treatment of LE's antecedent material is “restatement,” which he defines as “‘the act of stating again or in a new way,’ thus referring to the repetition or rewording of legal statements that have been stated in earlier legal compilations” (365 n. 1; see also Roth, “The Law Collection of King Hammurabi, esp. 12–13 for the notion of “restatement” in light of contemporary jurisprudence: statements that “lack the force of law although they are still considered to have persuasive authority”). Eichler's typology of restatement in LH vis-à-vis LE includes simple rewording, reformulation that exists to clarify or explicate earlier formulations (esp. when ambiguous), amplification in light of “the incomplete nature of Eshnunna's legal prescriptions” by filling out legal lacunae, and, lastly, restatements that “introduce new elements…in order to create discontinuity with earlier formulations in the Mesopotamian legal tradition” (399). The latter is found, in Eichler's work, by comparing LE §42 and LH §§196–205 (see ibid., 396–98), though in this specific instance “there is no evidence that the formulation in the Laws of Hammurabi is directly related to the formulation of the cases of bodily injury in LE 42” (398). Hence, this last example, a possible instance of legal replacement, is not quite as clear as would otherwise seem.

184 Pamela Barmash, “Scribal Initiative in the Clarification and Interpretation of Mesopotamian Law Collections,” in Birkat Shalom: Studies in the Bible, Ancient Near Eastern Literature, and Postbiblical Judaism Presented to Shalom M. Paul on the Occasion of His Seventieth Birthday (2 vols.; eds. Chaim Cohen et al.; Winona Lake: Eisenbrauns, 2008), 2:551–63 (553).

185 Though of course it is equally unclear if Pentateuchal legislation – Deuteronomic or otherwise – was practiced or practice-able. Cf. Hayes, What's Divine about Divine Law, 314–18 for how the Talmud's interpretation of Deut 21:18–21 makes the law impossible to implement.

186 Hurowitz, “Hammurabi in Mesopotamian Tradition,” 506. For the initial publication see W. G. Lambert, “The Laws of Hammurabi in the First Millennium,” in Reflets des deux Fleuves, Volume de mélanges offert à André Finet (eds. M. Lebeau and P. Talon; Akkadica Supplementum 6; Leiden: Peeters, 1989), 95–98.

187 Hurowitz, “Hammurabi in Mesopotamian Tradition,” 506.

188 Ibid.

189 W. G. Lambert, “Nebuchadnezzar King of Justice,” Iraq 27 (1965): 1–11.

190 Hurowitz, “Hammurabi in Mesopotamian Tradition,” 507; more extensively, 507–16. Berman, Inconsistency in the Torah, 137–47, also discusses this text and Hurowitz's essay.

191 Hurowitz, “Hammurabi in Mesopotamian Tradition,” 503.

192 Ibid., 532.

193 Ibid., 512.

194 Ibid., 514.

195 Ibid. See Berman, Inconsistency in the Torah, 144–45, who disputes the appropriateness of this term in this instance.

196 Hurowitz, “Hammurabi in Mesopotamian Tradition,” 516. He leaves open the question of whether LH was known “to the public-at-large or only to an educated elite of scribes and courtiers” (531).

197 Berman would no doubt relate such legal attention to his understanding of common-law tradition, especially in contrast to statutory law (see, e.g., Inconsistency in the Torah, 145–46).

198 In this way, KJ bears some notable similarities to the GA, especially on the matters of rhetorical appeal and persuasive intent.

199 So also, more recently, Berman, Inconsistency in the Torah, 146.

200 See, inter alia, Eugene Ulrich, The Dead Sea Scrolls and the Origins of the Bible (SDSSRL; Grand Rapids: Eerdmans, 1999); idem, The Dead Sea Scrolls and the Developmental Composition of the Bible (VTSup 169; Leiden: Brill, 2015); and Sidnie White Crawford, Rewriting Scripture in Second Temple Times (Grand Rapids: Eerdmans, 2008) on these issues.

201 See John F. Quant, “Rewriting Scripture Inside and Out: A Typology of Rewriting in Variant Editions and Rewritten Scripture” (Ph.D. diss, Emory University, 2014), who discusses such questions with reference to the larger problem of the composition of the Hebrew Bible. A key factor in identifying new compositions as opposed to copies, according to Quant, is the new framework the former provide which the latter lack. See further on this point, Milstein, Tracking the Master Scribe. For Jubilees as non-replacement, see, e.g., Pakkala, God's Word Omitted, 155–66.

202 See, e.g., Michael Segal, “4QReworked Pentateuch or 4QPentateuch?” in The Dead Sea Scrolls Fifty Years After Their Discovery: Proceedings of the Jerusalem Congress, July 20–25, 1997 (eds. Lawrence H. Schiffman, Emanuel Tov, and James C. VanderKam; Jerusalem: Israel Exploration Society, 2000), 391–99; and, most extensively, Molly M. Zahn, Rethinking Rewritten Scripture: Composition and Exegesis in the 4QReworked Pentateuch Manuscripts (STDJ 95; Leiden: Brill, 2011).

203 For more on 11QT, see Levinson, A More Perfect Torah; F. García Martínez, “Multiple Literary Editions of the Temple Scroll?” in Schiffman, Tov, and VanderKam, eds., The Dead Sea Scrolls Fifty Years After Their Discovery, 364–71; Sidnie White Crawford, The Temple Scroll and Related Texts (Sheffield: Sheffield Academic Press, 2000); eadem, Rewriting Scripture in Second Temple Times, 84–104.

204 Cf. similarly White Crawford, The Temple Scroll and Related Texts, 18–19; eadem, Rewriting Scripture in Second Temple Times, 102.

205 See, e.g., James C. VanderKam, The Dead Sea Scrolls Today (2nd ed.; Grand Rapids: Eerdmans, 2010), 78: “One may fairly call the Rule a constitution for the community”; and 101: “Since it functions as a kind of constitution for the community, one can understand that it would be the primary source for identifying the members of the group”; also idem, The Dead Sea Scrolls and the Bible (Grand Rapids: Eerdmans, 2012), 123: “As the composition in which it [the messianic passage in 1QS 9] occurs is a kind of constitution for the community that it describes and for which it prescribes, it is an official statement of sorts, a formulation of belief from a group and not one expressing the thought of just an individual.”

206 Another comparable text would be the Damascus Document, a legal composition that also exists in multiple and diverging manuscripts. See Joseph M. Baumgarten, Qumran Cave 4.13: The Damascus Document (4Q266–73) (DJD 18; Oxford: Clarendon, 1996); Charlotte Hempel, The Damascus Texts (Sheffield: Sheffield Academic Press, 2000), esp. 44–53, 87–88; and eadem, The Qumran Rule Texts in Context: Collected Studies (TSAJ 154; Tübingen: Mohr Siebeck, 2013). Yet another text that might be considered would be the War Scroll, for which see Esther Eshel and Hanan Eshel, “Recensions of the War Scroll,” in Schiffman, Tov, and VanderKam, eds., The Dead Sea Scrolls Fifty Years After Their Discovery, 351–63.

207 What follows is indebted to Brent A. Strawn, “Excerpted ‘Non-Biblical’ Scrolls at Qumran? Background, Analogies, Function,” in Qumran Studies: New Approaches, New Questions (eds. Michael Thomas Davis and Brent A. Strawn; Grand Rapids: Eerdmans, 2007), 65–123, esp. 87–115.

208 Uncertainty surrounds some fragments of 4QSh and 4QSb frg. 1, which may belong to scrolls unrelated to the Serekh and thus not copies of the Rule of the Community. See Strawn, “Excerpted ‘Non-Biblical’ Scrolls,” 112 n. 206. For 11Q29, see Florentino García Martínez, Eilbert J. C. Tigchelaar, and Adam S. van der Woulde, “29. 11QFragment Related to Serekh ha-Yaḥad,” in eidem, Qumran Cave 11.2: 11Q2–18, 11Q20–31 (DJD 23; Oxford: Clarendon, 1998), 433–34; and Eibert J. C. Tigchelaar, “A Newly Identified 11QSerekh ha-Yaḥad Fragment (11Q29)?” in Lawrence, Tov, and VanderKam, eds., The Dead Sea Scrolls Fifty Years After Their Discovery, 285–92.

209 There are in fact, more than just the two options described here. See most recently Alison Schofield, From Qumran to the Yaḥad: A New Paradigm of Textual Development for The Community Rule (STDJ 77; Leiden: Brill, 2009); and eadem, “Rereading S: A New Model of Textual Development in Light of the Cave 4 Serekh Copies,” DSD 15 (2008): 96–120. See further below.

210 Among her many works, see (chronologically) Sarianna Metso, “The Primary Results of the Reconstruction of 4QSe,” JJS 44 (1993): 303–8; eadem, The Textual Development of the Qumran Community Rule (STDJ 21; Leiden: Brill, 1997); eadem, “The Textual Traditions of the Qumran Community Rule,” in Legal Texts and Legal Issues: Proceedings of the Second Meeting of the International Organization for Qumran Studies, Cambridge, 1995: Published in Honour of Joseph M. Baumgarten [eds. Moshe Bernstein, Florentino García Martínez, and John Kampen; STDJ 23; Leiden: Brill, 1997), 141–47; eadem, “Constitutional Rules at Qumran,” in The Dead Sea Scrolls After Fifty Years (eds. Peter W. Flint and James C. VanderKam; Leiden: Brill, 1998), 186–210; eadem, “The Use of Old Testament Quotations in the Qumran Community Rule,” in Qumran between the Old and New Testaments (eds. Frederick H. Cryer and Thomas L. Thompson; JSOTSup 290; Sheffield: Sheffield Academic Press, 1998), 217–31; eadem, “In Search of the Sitz im Leben of the Community Rule,” in The Provo International Conference on the Dead Sea Scrolls: Technological Innovations, New Texts, and Reformulated Issues (eds. Donald W. Parry and Eugene Ulrich; STDJ 30; Leiden: Brill, 1999), 306–15; eadem, “The Redaction of the Community Rule,” in Schiffman, Tov, and VanderKam, eds., The Dead Sea Scrolls Fifty Years After Their Discovery, 377–84; eadem, “Biblical Quotations in the Community Rule,” in The Bible as Book: The Hebrew Bible and the Judaean Desert Discoveries (eds. Edward D. Herbert and Emanuel Tov; London: The British Library and Oak Knoll Press, 2002), 81–92; eadem, “Qumran Community Structure and Terminology as Theological Statement,” RevQ 20 (2002): 429–44; and eadem, The Serekh Texts (CQS 9; LSTS 62; London: T & T Clark, 2007), esp. 15–20 (on textual growth) and 63–71 (on the function of rule texts).

211 Metso, The Textual Development of the Qumran Community Rule, 4–5, 154–55; eadem, The Serekh Texts, 18.

212 Metso, “The Textual Traditions,” 142; eadem, The Serekh Texts, 18.

213 Metso, The Textual Development of the Qumran Community Rule, 144; cf. eadem, “Biblical Quotations,” 87; cf. eadem, “The Use of Old Testament Quotations,” 226; eadem, “In Search of the Sitz im Leben,” 307.

214 Metso, The Textual Development of the Qumran Community Rule, 105, 153; eadem, “In Search of the Sitz im Leben,” 307; eadem, The Serekh Texts, 18 (but contrast 69, cited below).

215 Metso offers brief comments on these matters here and there, as, e.g., in The Serekh Texs, 18, where she notes “the parallel of the biblical manuscripts, most clearly for Exodus and Jeremiah, where the same phenomenon [continued copying of older forms even after new, expanded versions became available] is documented.” See also eadem, “The Redaction of the Community Rule,” 381–83.

216 Metso, The Textual Development of the Qumran Community Rule, 148, similarly 154; eadem, The Serekh Texts, 18.

217 Cf. her remark in The Textual Development of the Qumran Community Rule, 154: “The manuscripts 1QS, 4QSa-j and 5Q11 were transmitted over a period of more than one hundred years. Remarkably, however, the major changes in the process of redaction had already taken place in c. 100 B.C.”

218 Philip S. Alexander, “The Redaction-History of Serekh Ha-Yaḥad: A Proposal,” RevQ 17 (1996): 437–56 (434).

219 Ibid., 447. For Cross's analysis see Frank Moore Cross, “Appendix: Paleographical Dates of the Manuscripts,” in The Dead Sea Scrolls: Hebrew, Aramaic, and Greek Texts with English Translations, Vol. 1: Rule of the Community and Related Documents (eds. James H. Charlesworth et al.; PTSDSSP 1; Tübingen: J. C. B. Mohr [Paul Siebeck] and Louisville: Westminster John Knox, 1994), 57.

220 Paul Garnet, “Cave 4 MS Parallels to 1QS 5.1–7: Towards a Serek Text History,” JSP 15 (1997): 67–78. In this view, what Metso reads as a spiritual laxity is interpreted by Garnet as a sign of robustness because the readers of the later versions already knew the proof-texts and self-designations – further proof that textual mechanics can be read very differently with regard to their motivations.

221 Alexander, “The Redaction-History of Serekh Ha-Yaḥad,” 447.

222 See Strawn, “Excerpted ‘Non-Biblical’ Scrolls,” 98.

223 For my own assessment, which posits at least some of the 4QS manuscripts as excerpts, see ibid., 100–115, esp. 100–109.

224 Metso, The Textual Development of the Qumran Community Rule, 154 (emphasis added). Cf. eadem, The Serekh Texts, 69: “The texts were ‘cumulative’ rather than ‘up-to-date.’”

225 Note, however, that a case for replacement could be made with the elimination of a calendrical section, 4QOtot (4Q319), from an early text-form of the Serekh. Metso, among others, believes such a section once concluded 4QSe (see, e.g., The Textual Development of the Qumran Community Rule, 144). This section was replaced in the later recension, according to Metso, by the psalm in 1QS 9:26b–11.22, which includes a calendrical aspect. Metso believes 4QOtot was eliminated because “it was no longer relevant in a community which had rejected the temple as defiled” (ibid., 153). But here again the major problem is that, despite some unfortunate and lingering confusion over the dating of 4QSe, it appears to postdate 1QS. Another problem is that there is no material join extant between 4QSe and 4QOtot. For discussion, see Strawn, “Excerpted ‘Non-Biblical’ Scrolls,” 102–103 and n. 139. In brief, it remains uncertain that, even if 4QOtot once followed 4QSe on the same manuscript, that this has any direct bearing on recensional development of the Serekh.

226 See, e.g., Metso, “The Redaction of the Community Rule,” 382 and n. 89, which mentions, inter alia, various procedures for admission into membership in 1QS 5.7b–20a; 5.20b–6.1a; and 6.13b–23.

227 Metso, The Textual Development of the Qumran Community Rule, 155; cf. eadem, The Serekh Texs, 69–70.

228 Metso, The Textual Development of the Qumran Community Rule, 148–49. Cf. eadem, “The Textual History of the Serekh,” 2, 5; eadem, “The Use of Old Testament Quotations,” 228–29; idem, “In Search of the Sitz im Leben,” passim.

229 Philip R. Davies, “Redaction and Sectarianism in the Qumran Scrolls,” in Sects and Scrolls: Essays on Qumran and Related Topics (SFSHJ 134; Atlanta: Scholars Press, 1996), 156–58, 160; cf. also Markus Bockmuehl, “Redaction and Ideology in the Rule of the Community (1QS/4QS),” RevQ 18 (1998): 541–60 (544).

230 See Ulrich, The Dead Sea Scrolls and the Origins of the Bible; idem, The Dead Sea Scrolls and the Developmental Composition of the Bible. Of course the point is true also for the Serekh – even if one only considers Cave 4! More generally, note the insightful remark from Carol A. Newsom: “the Hodayot and the Serek ha–Yaḥad were both part of the discourse of Qumran sectarian life. That such different moral languages should exist side by side is not so surprising. Our own lives are intersected by a multiplicity of divergent discourses” (“Kenneth Burke Meets the Teacher of Righteousness,” in Of Scribes and Scrolls: Studies on the Hebrew Bible, Intertestamental Judaism, and Christian Origins Presented to John Strugnell on the Occasion of His Sixtieth Birthday [eds. Harold W. Attridge, John J. Collins, and Thomas H. Tobin; Lanham: University Press of America, 1990], 121–31 [131]).

231 See Metso, “Constitutional Rules at Qumran,” 208 for options that include: document replacement, different texts addressed to different groups/audiences, or the fictive or utopian understanding of the text. She puts Harmut Stegemann in the first category, E. P. Sanders and J. M. Baumgarten in the second, and P. R. Davies in the last. Schofield's work (From Qumran to the Yaḥad; “Rereading S”) belongs to the second category as well; cf. also John J. Collins, Beyond the Qumran Community: The Sectarian Movement of the Dead Sea Scrolls (Grand Rapids: Eerdmans, 2010). Note also Hempel, The Qumran Rule Texts in Context, 337, who thinks that the Rule texts “need not necessarily have been practised or shared with the membership at large. There is no need to assume that various copies of the Serekh reflect distinctive practises and geographical provenances rather than a fluid textual tradition not unlike the textual fluidity of the emerging scriptures.” Such fluidity is manifest in the textual record but would have been resolved, at least temporarily, whenever the text(s) in question were put into practice. See further below and note Jon D. Levenson, “The Eighth Principle of Judaism and the Literary Simultaneity of Scripture,” in idem, The Hebrew Bible, the Old Testament, and Historical Criticism: Jews and Christians in Biblical Studies (Louisville: Westminster/John Knox Press, 1993), 74–75: “in rabbinic theology (and law), the norms that are presently out of force are still treasured and revered. They are to be read liturgically, studied and taught daily, and refined dialectically. They are, in short, still authoritative – their divine origin unimpugned –and the Jew is to expect and pray for their eschatological reinstitution. In practice, the course of history countermanded the law, but in theory, the law is eternal and not a mere handmaiden of history.”

232 Berman, Inconsistency in the Torah, esp. 107–17; and idem, “The History of Legal Theory and the Study of Biblical Law,” CBQ 76 (2014): 19–39. Cf. also the discussion of these matters in Paul D. Hanson, “The Theological Significance of Contradiction within the Book of the Covenant,” in Canon and Authority: Essays in Old Testament Religion and Theology (eds. George W. Coats and Burke O. Long; Philadelphia: Fortress, 1977), 110–32; and Watts, Reading Law, esp. 61–88, 102–107.

233 Metso, The Serekh Texs, 68.

234 Ibid., 70. Cf. eadem, “In Search of the Sitz im Leben,” 314.

235 Berman, Inconsistency in the Torah, 146. See further ibid., 196–98, for Berman's own discussion of the retention of outdated/rejected law in the Mishnah.

236 Cf. Hayes, What's Divine about Divine Law, 3, 53 on the “messy multidimensionality of biblical divine law.”

237 Contra Davies, “Redaction and Sectarianism,” 157: 1QS is “a rather muddled archive, a receptacle of bits and pieces from different times and authors.”

238 But see §6.1 for some evidence that they might have been practiced to some degree, at least as a locus for legal attention or reasoning – for precedent, if not legislation, to use Berman's phrasing (Inconsistency in the Torah, 146).

239 Metso, The Serekh Texs, 68 (emphasis added).

240 Metso, “The Redaction of the Community Rule,” 382.

241 Amar, America's Constitution, 459–61. Cf. Berman, Inconsistency in the Torah, 192 on how legal texts can perform other functions “[b]eyond providing instruction concerning normative practice.”

242 See Brent A. Strawn, “Biblical Understandings of Private Law,” in Christianity and Private Law: An Introduction (eds. Robert Cochrane and Michael Moreland; Cambridge: Cambridge University Press, forthcoming).

243 For phronesis in Greco-Roman and Rabbinic understandings of ancient law, see Hayes, What's Divine about Divine Law, 67–70 and 324–27, respectively.

244 Davies, “Redaction and Sectarianism,” 157. Cf. Metso, “The Redaction of the Community Rule,” 384: “The idea of a single legitimate version of the Community Rule on which the Qumran community based its judicial decisions at a particular period of time is also not plausible in light of the number and variety of the rule texts found at Qumran.” In a more pragmatic or common-law perspective, the version that was used as a basis for judicial decision was the version that was being used at that particular moment for the specific matter at hand. The idea that there be only one legitimate version, seems, on the basis of the manuscript tradition, peculiarly modern and decidedly anachronistic. Cf. Knoppers, “The Synoptic Problem?”; and Hempel's reflections in The Qumran Rule Texts in Context, 283–84, also 337; cf. idem, “The Context of 4QMMT and Comfortable Theories,” in The Dead Sea Scrolls: Texts and Contexts (ed. Charlotte Hempel; STDJ 90; Leiden: Brill, 2010), 275–92; also Milstein, Tracking the Master Scribe, 208–11. See, more fully, Hayes, What's Divine about Divine Law; and, more generally, John Van Seters, The Edited Bible: The Curious History of the “Editor” in Biblical Criticism (Winona Lake: Eisenbrauns, 2006). I also find the comments by David Andrew Teeter, Scribal Laws: Exegetical Variation in the Textual Transmission of Biblical Law in the Late Second Temple Period (FAT 92; Tübingen: Mohr Siebeck, 2014), esp. 205–67, helpful at this point. Note Teeter's remark that textual plurality “quite apparently was not understood as standing in opposition to a rigid conservativism in text handling, but, at least so it appears, in complementarity with it” (267; his emphasis). He immediately adds that “[t]his notion of complementarity between different textual expressions of the same composition might best be understood as another reflex of the same conceptual mindset of supplementation (as opposed to replacement, with an implied rejection of what is reworked) characteristic of the redactional formation of the literature of the Hebrew Bible on the whole, and especially within the production of ‘rewritten Scripture’ compositions such as Chronicles. Textual variation is, in this respect, closely linked to the fundamental impulses at work in the broader history of scriptural formation and reception, both internal and external to its compositions” (ibid.). See also Hindy Najman, Seconding Sinai: The Development of Mosaic Discourse in Second Temple Judaism (JSJSup 77; Leiden: Brill, 2003), esp. 5–7, 22–26 with explicit reference to Levinson and against replacement notions.

245 In addition to Levinson's work, the ground-breaking study of Michael Fishbane, should be mentioned: Biblical Interpretation in Ancient Israel (2nd ed.; Oxford: Clarendon, 1988), esp. 163–277. Note also Levinson's helpful and thorough bibliographic essay on inner-biblical exegesis in Legal Reivison and Religious Renewal in Ancient Israel, 95–181. Most recently, see the robust typology of early perspectives on divine law in Hayes, What's Divine about Divine Law. It is important to stress, with Hayes, that the seeds of quite different and distinctive understandings of law in Early Judaism and in the later rabbinic period are already present within the Torah itself.

246 E.g., with 1QS functioning as a kind of “maximum recension”; or with certain 4QS manuscripts functioning as excerpts for didactic or devotional use (see Strawn, “Excerpted ‘Non-Biblical’ Scrolls,” 100–109).

247 Newsom, “Pairing Research Questions,” 272.

248 Ibid., 276.

249 Ibid., 273.

250 Ibid., 273–74; cf. 282, which cites Frow, Genre, 19: “Genre…works at a level of semiosis – that is, of meaning making – which is deeper and more forceful than that of the explicit ‘content’ of a text.”

251 Newsom, “Pairing Research Questions,” 274–75.

252 Ibid., 275.

253 For a brief, pedagogical illustration, see Brent A. Strawn, “Genre: Interpretation, Recognition, Creation,” in Teaching the Bible: Practical Strategies for Classroom Instruction (eds. Mark Roncace and Patrick Gray; SBLRBS 49; Atlanta: Society of Biblical Literature, 2005), 19–20.

254 Levinson, “The Case for Revision and Interpolation within the Biblical Legal Corpora,” in “The Right Chorale”, 222–23.

255 See Hayes, What's Divine about Divine Law, passim, esp. 14–53 and 287–327; the citation is from 7. Note also 326–27: “the divine law's perfection is not diminished but constituted by the fact that it is particular, flexible, responsible, and on occasion multiform rather than universal, static, and uniform….for the most part rabbinic sources represent divine law as responsible to the shifting conditions of human existence, and humans as active participants in its ongoing evolution….[T]he very mark of its divine and perfect nature it its ability to respond to the shifting circumstances of human experience, and to evolve in response to moral criticism and rhetorical suasion” (her emphasis).

256 Siegel, “She the People,” 1046 (her emphasis).

257 Amar, “Intratextualism,” 794; citing Jed Rubenfeld, “Reading the Constitution as Spoken,” Yale Law Journal 104 (1995): 1119–73.

258 See further, and more extensively, Berman, Inconsistency in the Torah; Kilchör, Mosetora und Jahwetora. Note ibid. 326: “Die Rechtshermeneutik des Deuteronomiums lä sst sich somit auf die Formel bringen: Das hermeneutische Prinzip der Rechtsinnovation im Deuteronomium ist Tradition, nicht Subversion.”

259 Levinson explicitly mentions “extensive repertoire of sleights of scribal hand” in Legal Revision and Religious Renewal in Ancient Israel, 90. For her part, Hayes admits of “a rhetoric of concealment” in some of what the rabbis do vis-à-vis divine law, though in other cases she characterizes what they do as “a rhetoric of disclosure” (What's Divine about Divine Law, 287–327).

260 E.g., beyond the revision of the Book of the Covenant in chaps. 12–26 note: chaps. 1–11 revise narrative material from elsewhere in the Torah; chaps. 12–26 might also be seen as a more general type of updating revision in light of changed circumstances “in the land” (12:1); and the Moab covenant can be interpreted as a revision of the Horeb covenant. Polzin, “Reporting Speech,” thinks that the narrator ultimately revises Moses. Cf. Miller, “Constitution or Instruction?” 262: “Even the issue of amending the constitution is taken up. The requirement that nothing be added to or taken away from the Mosaic teaching (4:2; 12:32 [MT 13:1]) may be seen as a canonical formula, but before that it is a constitutional formula” (his emphasis). In any event, all of the above is but the beginning according to Najman and her understanding of “Mosaic Discourse” (Seconding Sinai, 39–40). Cf. also Herbert N. Schneidau, Sacred Discontent: The Bible and the Western Tradition (Berkeley, CA: University of California Press, 1976), for an argument that the tradition of the Bible introduced a principle of endless revision.

261 See Stackert, Rewriting the Torah, 209–25, esp. 218. Contrast John A. Miles, “Radical Editing: Redaktionsgeschichte and the Aesthetic of Willed Confusion,” in Halpern and Levenson, eds., Traditions in Transformation, 31: “Science is most often a matter of solving the puzzle, but literature, like religious faith, is a matter of being drawn into the game.”

262 See further the intriguing, if meandering, essay by Miles, “Radical Editing,” 9–31, including 19: “Both [Judaism and Christianity] have endured revision, all right; but only in rationalism is revision made something like a sacred principle in its own right.” In Miles' essay, revision is often a cipher for replacement.

263 Cf. Najman, Seconding Sinai, 24: replacement theories presuppose “that the text of the Covenant Code was already fixed in the seventh century B.C.E., and indeed that we can now reconstruct that text accurately. But there is simply no evidence to support these presuppositions.”

264 Cf. ibid., 23: “If the intention to replace the Covenant Code were not ascribed to the Deuteronomists, then the tension [between the goal of replacement and the rewriting strategy employed] would disappear.”

265 Cf. Moberly, Old Testament Theology, 161–62 for discussion of how development with reference to an authoritative document “is characteristically expressed in terms of realizing the implications of the original, or of determining what is compatible with it. All of this requires the continuing interpretive activity on the part of the community as a whole, and of its recognized representatives, to explore, via both argument and practice, what does and does not constitute a good implication or an appropriate compatibility. The community must both attend to and be constrained by the original meaning, and also not be restricted by original meaning and be able to move beyond it” (161; emphasis added). To put this in the terms of my own argument: the original document must be revised but such revision, in terms of actual communal practice, is never totalizing replacement but, again, an intergenerational project that is the co-work of writers and readers.

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