How ANE Laws Work
We are considering John Walton’s book, The Lost World of the Torah: Law as Covenant and Wisdom in Ancient Context
The Torah was intended to give the king wisdom for doing his job. The Torah (like the legal lists in the ANE) embodies wisdom; it does not establish legislation. (pp. 38-39)
John Walton devotes several chapters and propositions to helping us understand the nature of law codes in the Ancient Near East. The ancient Israelites shared the “cultural river” of their time, and Walton suggests that they way they viewed “laws” was different than the way we do today. He begins by comparing one of the most famous of the ancient law codes.
The most well-known, most extensive, and the first to be found, in 1901 in excavations at Susa, is the stele that preserves 282 legal sayings embedded in a royal inscription of Hammurabi (ca. 1750 BC), hundreds of years prior to Moses. Hammurabi was a Babylonian king contemporary with Israel’s patriarchs. (p. 26)
When first found, scholars thought Hammurabi’s stele was a “law code” — a body of prescriptive legislation to be enforced within Babylonian society. But one thing soon became clear. The “laws” included were not comprehensive. There were major gaps in the content of the law, areas of legislation that would have been expected in a body of laws.
The collection of legal sayings was then reinterpreted as Hammurabi’s demonstration that he was executing justice in his kingdom—a role that the gods had appointed him to carry out and for which they held him accountable.
Given this interpretation, it became less fitting to interpret the document as codified, prescriptive legislation, but adjustments in thinking continued to occur. Scholars began to suspect that these collections were the result of the scholarly creativity of the scribes rather than solely the work of legislators ruling on cases brought before them. (p. 28)
It appears that “law codes” like that of Hammurabi were designed to provide examples of the king’s wisdom, “not to define law but to offer guidance for discerning wise justice so that order might be maintained in society” (p. 33) by those responsible for executing justice. These laws were pedagogical models, not legal statutes.
The list is not comprehensive because it is intended to circumscribe, not legislate. It provides illustrations of justice and order. As judges and magistrates absorb what it communicates, they will be better able to recognize wrongness and rightness and make decisions appropriately. Since the list is not intended to regulate or legislate, there is no need for it to be comprehensive. The items in the list provide descriptive instruction, not prescriptive legislation. (pp. 35-36)
Those who study the legal sections in the Torah come to a similar conclusion. The sections of laws therein are in no way comprehensive. My professor of Old Testament in seminary, John Sailhamer, used to remind us that the Torah is primarily a narrative, and “bags of laws” have been dropped in at certain places in service to that narrative. In other words, they are not legislation for the reader to obey, rather they are examples of the laws God gave to Israel to help readers understand the story of Israel and God’s dealings with them better.
Walton puts it this way:
[T]he legal lists in the Pentateuch are…couched literarily in narrative or in speeches (such as Moses’ sermons in Deuteronomy), as well as in what eventually became canonical books, each using the Torah to accomplish its own individual literary objectives. That means that none of these are in a literary context of legislation; they have been adopted for secondary (or even tertiary) use. (p. 39)
Furthermore, he notes that the Torah could not be used to legislate Israel’s life, otherwise they would not have needed to extrapolate from it in so much detail in additional works like the Mishnah. Furthermore, even in the Bible itself, Walton notes occasions when people and leaders made decisions and cited “laws” or known rules that are nowhere found in the text of the “Law.” And so, he concludes,
The Torah was intended to give the king wisdom for doing his job. The Torah (like the legal lists in the ANE) embodies wisdom; it does not establish legislation.” (pp. 38-39)
Israel’s judiciary system, like that throughout the ANE, was based on the wisdom of the judges, not on legislation. It involved a dynamic integration of custom, divine revelation (including oracles), and intuition, rather than static codes. The legal collections found in the Torah and other legal collections embody that wisdom by providing an aspective mosaic of sayings that manifested the sponsor’s wisdom, instructed the judges, and helped the people to understand order in society. The people are to “heed” this wisdom and “preserve” it. In this view, the expected response to the Torah is far different from a response to legislation. Legislation carries a sense of “you ought”; instruction carries a sense of “you will know.”
Consequently, we will propose that Torah in biblical usage is an expression of wisdom, not of legislation. It refers to a collection of examples that combine to form a description of the desired established order. We will be using the term to refer to the corpus of legal sayings found throughout the Pentateuch and will seek to demonstrate that these sayings embody standards of wisdom for the ordering of society within the covenant relationship that Yahweh had with Israel. (pp. 44-45)
The Internet Monk Archives 
You can be just as certain that it wouldn’t be the codified nature of a system that would make things bad.
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I’m fairly certain that it is not the uncodified nature of the system that makes things bad…
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That is almost the textbook definition of an Ad Terrorem law. The theoretical legal penalty shows the gravity of the offense, and looms in the background if the defendant goes back on his pseudo-plea bargian.
And one Jewish source back in my gaming days said that in olden times they could fix the monetary amount of “losing an eye” by comparing the difference in price between a two-eyed slave and a one-eyed slave, and that “nowadays we’d use insurance actuarial tables.”
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It’s right to assume that the Jewish sources you refer to are better placed to understand it — but how much better?
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Absolutely no idea. I wonder that myself. This is a system that probably ceased to function about 2,500 years ago, so much of what we think we understand about it is pure guesswork.
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What if the defendant was poor, and couldn’t pay?
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Jewish sources that I have seen insist that the physical punishments were never in fact intended to be carried out. There are apparently Biblical references to this: the courts practice was apparently to pronounce the sentence of death or losing an eye or what-have-you, and then set a compensation payment / fine / ransom instead that the defendant should pay the plaintiff. Presumably the theoretical legal penalty could be imposed if the defendant refused to pay.
My understanding is that the courts were only forbidden to permit the defendant to pay compensation / a ransom in cases of premeditated murder.
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The modern nation of Saudi Arabia does not have a codified legal system; it has an uncodified Sharia system. The judge is the arbiter and has broad freedom, and does not adhere to precedents or codified formalities. Things don’t turn out too well with regard to justice in Saudi Arabia.
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Of course, by the time of Jesus, the Pharisees were big on all the nitty gritty details of the Law, but neglected the reason the Law was created. This was Christ’s comment on that:
“Woe to you, scribes and Pharisees, hypocrites! For you tithe mint and dill and cummin, and have neglected the weightier provisions of the law: justice and mercy and faithfulness; but these are the things you should have done without neglecting the others.” Matthew 23:23.
Give 10% of each of the spices on your spice to fulfill the tithe explicitly, but neglect the wisdom and reasoning behind it.
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As an aside, if one looks at Jewish legal procedures in the time of Christ, one can see that the trial of Christ complete mockery and kangaroo court. The trial being done at night was example of many that was a no-no.
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Apparently we are on the same thread.
Your close Rick Ro.. One of us is the other’s evil twin Skippy, which one of course is a mystery…..
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Didn’t the God of the OT get mad at them for that?
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I’ll stay tuned.
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One thing I’ve noticed reading the Old Testament is that they don’t seem to have applied the punishments of some of these laws, at leas not consistently.
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Note: has anyone actually seen CM and Chap Mike in the same room?
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Another thing that just came to mind was a scene in Chronicles of Narnia: Voyage of the Dawn Treader between Aslan and “The Magician” running and caretaking Duffers’ Island; a dialog exchange about “governing with Wisdom instead of having to use this rough Magic”.
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I remember reading once how the Puritans of Massachusetts Bay once enforced that one Chapter-and-Verse Word-for-Word. But then, quoting Chapter-and-Verse Word-for-Word is so much easier than actually thinking what to do based on Wisdom.
Though it could just as easily be read as an “Ad Terrorem” Law, i.e. a harsh law that would not actually be carried out literally (formal sentencing, then commutation to a lesser penalty), but served to show just how serious the offense was.
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Unfortunately, quoting Chapter-and-Verse and capping it with “God Saith! So There!” is a lot simpler and easier than actually having to make decisions guided by examples of Wisdom.
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Chaplain Mike,
Found this interesting link to Kline’s stuff:
https://meredithkline.com/
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Not sure I’ve seen an answer to that question yet, Jon. I’ll watch for it as I continue reading.
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Yes, I remember Kline from seminary studies, but haven’t looked at him in awhile.
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What does he do with the commandments that have a penalty attached to them? Such as Exodus 21:17 “Whoever curses his father or his mother shall be put to death.”
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One interesting thing is how classist the Code of Hammurabi is. It simply assumes that the upper classes are held to a different (not necessarily higher) standard than the lower.
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That does fit with the emphasis on Wisdom you find in the culture and source documents. (As opposed to today’s definition of “Righteousness”.) Wisdom vs Foolishness — i.e. “Don’t Be Stupid!” — is the moral emphasis in Jewish tradition and culture.
A Jewish contact once told me Torah is full of what he called “Subversive Wisdom”. Its way of discouraging such cultural pillars as Honor Killings and Slavery and Harem Polygyny was not to flat-out forbid them (that would have gotten Torah blown off as “Crazy Talk”) but to regulate them in such a way as to make them impractical. Such as Honor Killings, which had to be Okayed in public by “the elders at the gate”, i.e. permission had to be given in public by the Authorities. Since the purpose of Honor Killings was to hush up a scandal in secret (“If no man knows of my sin, I Am Not Shamed. And Dead Men Tell No Tales.”), having to go to the Authorities for permission defeated the whole point of the exercise.
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P.S. Glad to see ha-Torah had some respect for and allowed some freedom of action to the judges who had to apply it on a case-by-case basis. Like English Common Law instead of French/German Statute Law.
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So all the 607 other Commandments were actually general Wisdom guidelines and “case law” legal precedents which were to be adapted to specific situations and cases instead of a blanket “Thus Saith The LORD (QUOTE! QUOTE! QUOTE!)”?
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Chaplin Mike,
Please comment so people don’t think you (or I) are talking to ourselves. Thanks.
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Chaplin Mike,
Didn’t Meredith Kline do quite a bit of scholarship in this regard back in the day? More specifically his work on Suzerain-Vassal treaties of the ANE?
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After reading this, it’s no wonder why lawyers exist…lol.
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And today it’s all FEAR and OBEY word-for-word (Or Else!)
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https://outorah.org/p/27096/
small steps, small steps . . . so as not to frighten or overwhelm, but to guide us towards what God wants from us WILLINGLY to help us find ‘the good way’ forward
” Stand at the crossroads and look; ask for the ancient paths, ask where the good way is, and walk in it, and you will find rest for your souls. — Jeremiah 6:16
Stand.
Look.
Ask.
Walk.
Rest.
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‘examples of wisdom’
I like that phrase.
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I am not sure how Walton handles the 10 Commandments. It is my own opinion that they stand separate from the legal texts that we are talking about. They certainly are different in character from most of the laws that are grouped together in sections later in the Torah, which seem to be examples of “case law” — decisions that priests or leaders made in the basis of more general legal principles.
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It seems to me that many of the laws function more like legal precedents than laws in modern terms. I am dubious, though, about understanding *all* such laws in that way – the decalogue, for example, functions much more as a set of general rules than “examples of wisdom”. That the laws included are intended as example laws to fit the narrative, or particular rules set down for a particular purpose within it rather than as a comprehensive law code seems to me indisputable, though.
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