Forschungen zum Alten Testament 2.Reihe Edited by Bernd Janowski (Tübingen) · Mark S.Smith (New York) Hermann Spieckermann (Göttingen) 54 Law and Narrative in the Bible and in Neighbouring Ancient Cultures Edited by Klaus-Peter Adam Friedrich Avemarie Nili Wazana co-edited by Dorit Felsch Mohr Siebeck Klaus-Peter Adam,born 1965;studied Protestant Theology in Berlin,Tübingen,Mün- chen;1999 PhD;2005 Habilitation;Professor of Old Testament at the Lutheran School of Theology at Chicago. Friedrich Avemarie,born 1960;studied Protestant Theology and Ancient Judaism;1995 PhD;2000 Habilitation;since 2002 Professor of New Testament at Philipps-University in Marburg. Nili Wazana, born 1962; Senior Lecturer in the Departments of Bible and History of the Jewish People and Contemporary Judaism at the Hebrew University,Jerusalem, Israel. Dorit Felsch, born 1979; studied Protestant theology in Tübingen and Leipzig; 2007–10 assistant at the Department of New Testament,Philipps-University,Marburg; 2011 PhD;research on the Gospel of John and early rabbinic literature. e-ISBN 978-3-16-152123-2 ISBN 978-3-16-150843-1 ISSN 1611-4914 (Forschungen zum Alten Testament,2.Reihe) Die Deutsche Nationalbibliothek lists this publication in the Deutsche Nationalbiblio- graphie;detailed bibliographic data are available in the Internet at http://dnb.dnb.de. © 2012 by Mohr Siebeck,Tübingen,Germany. This book may not be reproduced,in whole or in part,in any form (beyond that permitted by copyright law) without the publisher’s written permission.This applies particularly to reproductions,translations,microfilms and storage and processing in electronic systems. The book was printed by Laupp & Göbel in Nehren on non-aging paper and bound by Buchbinderei Nädele in Nehren. Printed in Germany. Preface The articles in the present volume originate from a conference on “Ab- stract Law and Case Narrative in the Bible and in Neighbouring Ancient Cultures”,1 which was held, with the support of the Deutsche Forschungs- gemeinschaft, at Marburg in September 2009. The focus of the conference was set on the manifold ways in which nar- rative texts—the fundamental difference in genre notwithstanding—can relate to the laws and legal traditions that are formative in their cultural background. Fictional narrative can be critical of a legal reality or ideal; echo attempts to change it; serve exhortatory purposes; or simply reflect current legal practice. Moreover, narratives are indispensible elements in a law suit,2 where litigants, in defending their respective versions of past events, explicitly or implicitly draw on legal norms considered to be applicable to their case. Conversely, casuistic law includes the hypothetic narration which anticipates possible real cases; and legal corpora, such as the vast body of talmudic literature, can contain shorter narrative forms such as exempla and precedents. These considerations lead to a number of questions by which the inves- tigations presented and discussed at the conference3 and published here are governed: To what extent does a story owe its narrative features to the par- ticular legal problem to which it relates? What differences emerge between a case narrative and the corresponding legal norm? Is a narrative entirely fictitious, or is it based on historical or traditional material that is adapted to the purposes of a case study? Is a narrative determined by a particular legal context, such as the forensic setting of a lawsuit? Does a story merely serve as an illustration or does it seek the authentication of a particular law? Or, conversely, does it reveal the inherent problems of a particular legal reality and call for change? And can it be ascertained whether a given narrative actually influenced subsequent legislative developments or legal decisions? 1 German parallel title: Abstrakter Rechtssatz und Fallerzählung in der Bibel und in antiken Nachbarkulturen. 2 On narratio as one of the core elements of classical forensic speech see Quintilian, Inst. or. 3.9.1 and 4.2. 3 Except for the article of D. A. Hume, which was added later. VI Preface One of the very general impressions conveyed by the present array of contributions seems to be that references to legal norms in literary texts are most tangible when in the background of a narrative an institutional legal system is operative by which the demeanour and concerns of the acting persons are directly shaped. This obviously holds for a number of fictional narratives in the Hebrew Bible (cf. the articles of Oswald, Rüterswörden, Wazana, Adam), but also for Greek drama (Gödde) and rabbinic literature (Ilan, Hezser). However, Jewish writings from the Hellenistic period, as well as early Christian literature, presuppose legal systems that are main- tained by institutions far removed from the narrative worlds of these texts. This explains why they mainly focus on religious subgroup issues such as ritual observances, matrimonial ethics, kinship solidarity and rules of com- munitarian life (Werman, Doering, Ego; Avemarie, Hume, Regev), while in matters, e.g., of homicide, blood vengeance, the death penalty, kidnap- ping and the overall legal order (as treated by Adam, Wazana, Rüterswör- den, Oswald and Gödde), the existence of viable legal norms seems to be tacitly presupposed, and accepted without challenge. An intermediate posi- tion is adopted by the gospel of Luke, which, driven by a sombre concern for the political shape of Jesus’ Judaean motherland, nevertheless does not question the political system as such but exhorts its representatives to comply with its laws (Bormann). Finally, as regards forensic narratives, references to established legal principles may of course markedly stand out (Magdalene), but at times can also be surprisingly weak (Wunsch). The latter does not necessarily imply the self-evidence of pertinent rules or a poor knowledge on the part of the litigant, but may also be due to a doubtful legal foundation of the case itself (Krauter). In chronological order, the collection starts with the ancient Near East. Proceeding from an overview of case narratives in Neo-Babylonian trial records, Cornelia Wunsch points to the need to reconstruct the stories be- hind the text, which can be done on the basis of the restoration of the clay tablets and a clarification of the subject matter and stages of the lawsuits, including the identification of the social status of the parties involved. The two examples discussed by Wunsch offer insights into actual trial practice. The first is a tablet that describes a lawsuit from the time of Nebuchad- nezzar II concerning an inheritance shared between an uncle and his three nephews. It records the prehistory of the case, the parties’ appearance in court, the nephews’ accusation against their uncle of embezzlement from jointly-held property of his (i.e. the uncle’s) father, a twofold answer of the defendant, four counter-statements against his nephews and, after a textual gap of uncertain length, one further statement and an answer to the counter- claims with references to earlier lawsuits. The second, a tablet that belongs to short depositions preserved from private and institutional archives from Law and Narrative VII 540 B.C.E. Uruk, lists a dispute over the death of a dog. A slave, enraged by a dog snatching his bread, picked up a stick to deal it a blow but missed it and hit its puppy, which caused the puppy’s death. While the tablet men- tions seventeen witnesses, the scribe, place and date, a plaintiff is lacking and, as a consequence, various contexts of the dispute may be assumed. Wolfgang Oswald reads the Exodus-and-Mountain-of-God narrative un- derlying the first half of the book of Exodus as the foundational legitimi- sation story of the Judaean citizenry. The theophany provides the narrative frame for the institution of the Covenant Code (20:24–23:19) and the Deca- logue (20:1–17). Source-critically, it forms part of a legitimisation narrative that was intrinsically related to the following laws. Their core, the Mish- patim in 21:12–22:16, was a collection intended to foster competence in legal decision-making on the basis of inference by analogy (E. Otto). Addi- tional literary layers concern the altar, slavery, resident aliens, the socially deprived (widows, orphans, debtors, pledgers), the legal procedure, the relation to the deity, Sabbath year rules, the festival calendar, cult partici- pation; in sum, a legislation that exceeds by far what was usually dealt with in trials “in the gate”. The three actors of the narrative—YHWH, who reveals the law; Moses, who acts as mediator; and the people, who ratifies the law and thus turns out to be the very sovereign—can be set into per- spective with what has been reconstructed concerning constitutional law in early city states such as Athens, Sparta and Lokroi. The hiatus between “codified” law and legal practice is the starting point for Udo Rüterswörden. Three types of relation between a case narra- tive and codified law can be distinguished in the Hebrew Bible: Either the narrative relates to a norm attested in biblical law, or it refers to a ruling not recorded in the Bible, or the narrative and the written law are in a complex relationship of congruence and adaptation. As an example of the first type, Rüterswörden discusses the sale of Joseph by his brothers (Gen 37:28), which infringes the biblical prohibition of kidnapping (Exod 21:16; Deut 24:7). The chronological placement of the story before the law’s pro- mulgation reflects the conviction that even in pre-Sinaitic days humankind had its legal principles. An example for the second type is Judah standing surety for the return of Benjamin from Egypt (43:9; 44:32). The practice of standing surety, known in particular from Proverbs, is modified in Genesis as Judah assures the presence of a person rather than guaranteeing a fiscal transfer. The Judah and Tamar narrative, which exemplifies the third type, raises the issue of levirate marriage (Gen 38:8–9), an option which Onan, unwilling to share his inheritance with his brother’s offspring, rejects. While the function of levirate marriage within ancient Israel’s legal system is far from clear, the aim of the legislation of Deut 25:1–9 may in fact be the rite of halitzah, and hence the suspension of levirate marriage. Tamar, VIII Preface contrary to the reproach of licentiousness raised by Judah, is portrayed as a highly honourable woman who upholds the Israelite ethos. Nili Wazana juxtaposes the law on impalement in Deut 21:23, which puts a firm restraint on the practice of this type of punishment, with the treatment of the king of Ai and the five kings of the southern coalition in Josh 8:29 and 10:16-27. Similarities between Deut 21:23 and the narratives in Joshua 8 and 10 include the practice of impalement itself, the concern about the corpses’ exposure to the open air overnight, and consequently, their removal and burial before nightfall. Presupposing the Deuteronomic law, the stories are nevertheless not set in the context of the Israelite legal system but in a political and military framework. While the law is accompanied by a motive clause, the treatment of these kings is given no reason other than Joshua’s order. The emphasis on the burial of the impaled in all three texts can be explained as a reaction to Neo-Assyrian impalement practice as attested in sources from the time of Tiglath-Pileser III and Sennacherib, such as the relief of the conquest of Lachish. The narratives counter Assyrian practice by a more humane vision of what an Israelite leader in a conquest campaign would do, and the Deuteronomic law casts this into a general legal norm. Klaus-Peter Adam interprets the episode 1 Sam 26 as a case narrative that reflects homicide law. The ongoing motif of Saul pursuing David is an essential aspect of the case’s circumstances and functions as an indication of the intention to kill. While methodological limits restrict the case nar- rative’s source-critical relation to codified homicide law (it alludes to the Covenant Code, Deuteronomy and to priestly law), the storyline’s concep- tual centre of a contrasting pair of protagonists is driven by a paedagogical agenda: David, impeccable in his non-violent response, is contrasted to Saul who constantly attempts to attack David, and exactly this contrast and the ethical judgment concerning it is presented as the outcome of a litiga- tion between both parties. Besides these contents of homicide law, the narra- tive teaches the rhetorical conflict-settlement as such with its salient form of direct speech in the second part of 1 Sam 26. With David’s exemplary behaviour, it showcases an ideal-typical procedure of conflict settlement through a trial rather than through a physical assault in the case of homi- cide between private enemies. Teaching law by means of a case narrative in 1Sam 26 implies both legal content and procedural aspects. Rachel Magdalene interprets the book of Job against the backdrop of legal records of Neo-Babylonian origin. The legal metaphors of the book are part of a literary trial of Job before the divine council, a literary trial which nevertheless shows all features characteristic of real trial records: a conflict over a matter of substantive law (in the present case, blasphemy), the dialogue format that enables the litigants to express their different per- Law and Narrative IX spectives in varying narratives aimed at persuading the tribunal, and pro- cedural rules by which the moves of the parties are controlled. This is the setting in which Job’s suffering can be related to retributive divine justice. Satan, in a reversal of the constellation of Ps 82, accuses God of not upholding retributive justice. Job at first passively accepts the complex in- vestigation, but at his wife’s instigation starts to reject it and then counter- sues God for abusing his judicial authority. From a procedural perspective, Job predominantly engages in settlement negotiations, most explicitly so in 9:14–15 and 23:3–7. As is typical of such negotiations, his statements dis- close his trial strategy, assess the strengths and weaknesses of the positions involved, and attempt to resolve the conflict. Joachim Hengstl views the topic of the conference from the—decidedly non-theological—perspective of a jurist and historian of law, and expresses a certain scepticism regarding too close a junction of case narrative and abstract legal norm. While admitting that literature in general can be an important source for the reconstruction of legal history, and according paramount importance to the Pentateuch as the primary source for the legal history of Judaism, he argues that biblical narratives usually neither are built around legal norms nor aim at influencing extant laws but only reflect the prevailing legal system as part of their cultural background. Manifest efforts to influence the legal system can be discerned only in prophetic writings, which however constitute a genre quite other than narrative. Susanne Gödde illuminates the emergence in ancient Greece of the idea of a divine authorisation of the judicial procedure as reflected in archaic epic and classical drama. In the Iliad, jurisdiction is safeguarded as part of the political order by the authority of Zeus, who however at the same time exercises an arbitrary and despotic rule among the gods. In Hesiod’s Theo- gony and Works and Days, jurisdiction appears as a duty of kings and is supervised and safeguarded, again, by Zeus, whom Hesiod credits with a somewhat higher measure of justice than the Iliad. If in Homer and Hesiod justice is attained not on the basis of positive laws but through legal pro- cedure, the same holds also for Aeschylus’s Oresteia. However, through the initiative of Athena the legal procedure is here institutionalised by the establishment of a jury court, in obvious correspondence to the process of democratisation that had taken place at Athens during the fifth century B.C.E. Orestes’ acquittal by the jury does not so much imply that matricide was considered less heinous than mariticide as it provides a precedent for the principle that a stalemate vote cannot lead to a conviction. Stefan Krauter investigates the interplay of case narration and allusions to legal norms in Cicero’s De domo sua ad pontifices, a speech held in an attempt to regain the estate of his former villa in Rome. In the previous year, this villa had been confiscated and demolished, and on parts of the