Review_Transformation of Torah From Scribal Advice to Law

7/27/2019 Review_Transformation of Torah From Scribal Advice to Law

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T h e T r a n s fo r m a t io n o f T o r a h f r o m S c rib a l A d v ic e t o Law . By AnneFitzpatrick-McKinley. Sheffield: Sheffield Academic Press 1999. Pp. 200.

S57.50. ISBN: 1-850-75953-7.

Originally a 1993 Ph.D. thesis directed by A.D.H. Mayes at TrinityCollege (Dublin, Ireland), this volume combines historical investigation

of the Old Testament (or Hebrew Bible), legal theory and comparativereligious scholarship in order to advance an alternative proposal about

the nature and development of Old Testament law.Rather than viewing the legal portions of the Old Testament as

codes deriving from the ancient practice of jurisprudence, and asintended to provide a body of precedents for legal decision-making inancient Israelite society, Fitzpatrick-McKinley argues that biblical lawarose initially as a creative effort by Israelite scribes to formulatecollections of moral advice, analogous to the phenomenon ofdharma in

ancient Indian religion. Like dharma, Old Testament law did notoriginally function as law in the modem sense of the term, but onlygraduallyand in some tension with its earlier charactercame toexercise a genuinely juristic role within early Judaism by providing legal

precedents and sanctions for a growing body of binding religious rules.Fitzpatrick-McKinley first reviews (ch. 1) several important works

on Old Testament law, paying particular attention to redaction-criticaltreatments of the Book of the Covenant {Exod 20:22-23:33), oftenconsidered by biblical scholars to represent the earliest legal code inthe Bible. Works by F. Crilsemann, J. Halbe, E. Otto, and L.

Schwienhorst-Sch6nberger are closely analyzed. By comparing thevarying results of these works against each other, and then drawing uponcontemporary legal theory (especially the work of A. Watson), she isable to identify (ch. 2) a number of problems with what she terms thestandard legislative model (81) of Old Testament law.

Fitzpatrick-McKinley goes on to describe and evaluate (ch. 3) thediscussion about an alternative model, now with reference not only to

biblical law but also to ancient Near Eastern law in general. Shecharacterizes the basic alternative that has emerged in scholarly debatethus far as the scientific-academic treatise model of law, (88)exemplified in her discussion by J. Botteros interpretation of the Codeof Hammurabi.

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The attractiveness of this alternative exemplary or advisory

model lies in its ability to escape the chief problem that has alwaysconfronted the legislative model of biblical law: namely, the odd

omissions and clear contradictions now found within the legal materialof the Old Testament. If the intention behind these codes was notoriginally to provide the basis for a practicable legal system, but rather

to provide general moral instruction, then the gaps and clashes aresomewhat easier to overlook. However, there currently exist within

biblical scholarship several different ways of reconstructing the precisecontours of this alternative scientific treatise model of Old Testament

law, Fitzpatrick-McKinley maintains. She proceeds to review a numberof particular proposals (especially the work of C.M. Carmichael, B.S.Jackson, J. Goody and R. Westbrook), concluding that no entirely

satisfactory explanation of the function of the codes, understood asscientific treatises, has been found. (113)

In order to provide what she considers to be a more adequate

alternative to the legislative model, Fitzpatrick-McKinley proposes tounderstand Old Testament law, or torah, as comparable to dharma, an

ancient Indian term signifying duty or even religion (ch. 4).Originally suggested by B.S. Jackson, (113) the analogy between OldTestament law and dharma is here extended and developed more fully

by Fitzpatrick-McKinley, who attempts to show (again using the Bookof the Covenant as a primary example) that Old Testament law wasnever intended to legislate; it was rather a series of moral rules backed

up by nothing other than their own moral authority . . . and by extra

legal or non-legal divine threat. (141)This section of her argument relies quite heavilyand

uncriticallyon K. van der Tooms stimulating but too-sweepingcomparative work on ancient Near Eastern and Israelite morality,1 inorder to show how a common conception of cosmic order undergirdedall ancient Near Eastern law including that of Israel, and to trace aconcern for this order to scribal circles standing in the stream of ancienttradition known as wisdom. (128)

Fitzpatrick-McKinleys last full chapter (ch. 5) then attempts to

reconstruct the way in which literary expressions of the wisdom-

morality of the scribes came in time to be viewed as authoritative andbinding legislation. (146) She perceives the initial development in thisprocess as resulting from an early association between the scribes andthe monarchy. She identifies another major factor as the increasing

1. Sin and Sanction in Israel and Mesopotamia (Van Gorcum 1985).


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textualization of written torah, and the way that such textualization lent

greater authority and autonomy to both the scribes and the literarymaterials they produced.In a final brief section (Issues and Proposals) the author appears

to want to head off three potential objections to various aspects of theargument that she has presented. These implied methodological

objections relate to: 1) her insistence that written texts by their verynature become thoroughly autonomous from the original circumstancesin which they were produced (decontextualization); 2) her

ambivalence about the possibility of reconstructing the authorial

intention behind ancient texts; and 3) her restriction of early biblicallaw to elite scribal circles in light of the later widespread adoption ofthis law by the Jewish people generallyhere, Fitzpatrick-McKinley

suggests thinking in terms of an internalization of the law among the

wider population rather than a crude ideological imposition.This last point shows that Fitzpatrick-McKinley concludes her

book without having answered the central question posed by its title:how didearly scribal advice become transformed into the Law of early

Judaism? As it turns out, this historical question is not really the mainfocus of Fitzpatrick-McKinleys investigation. Instead, the central issueappears to be a methodological one: whether the development ofIsraelite law is to be interpreted as resulting primarily from social andeconomic factors or more as a consequence of some other dynamic.Fitzpatrick-McKinley emphasizes the way in which the force oftextualization not only makes contemporary reconstruction of social andeconomic factors difficult, but also would have subverted thedecisiveness of such factors within ancient societies. (15) In her

analysis, inner-scribal exegesis rather than social and economic factorsplayed the determining role in the evolution oftorah. (20)

By contrast, the socio-economic view of causation is typified forthe author in the work of E. Otto on biblical law. A related issueconsists of Ottos reconstruction of a development within Israelite lawfrom a secular to a sacred body of knowledge. (11) In response,however, Fitzpatrick-McKinleys argument seems hobbled byinconsistency. Despite an early and strong affirmation of such a

development (11, Such a view is soundly supported by the texts and byother studies, cf. 20), her sustained effort (especially in ch. 4) to groundtorah in cosmic order and divine sanction (rather than in actual

jurisprudence) suggests the very opposite conclusion, as Fitzpatrick-McKinley herself later concludes (130, Thus, legal procedure inMesopotamia and in Israel was never totally secular, but was always


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permeated by religious concepts.). The religious character of biblical

law is never adequately clarified in her treatment.At the same time, however, the authors skepticism about any

facile correlativity between ancient texts and their social contextsprovides for the readers consideration a number of important challengesto the way in which historical work on biblical law is often, perhapseven usually, done. (19, Law is largely a structurally autonomousorganization; hence the direct link between a society and its law istenuous.) Here the authors critical probing makes a real contribution,discussing methodological issues that still deserve to be more widely

recognized and engaged within the biblical field, particularly inredaction-critical work.

If, in all these ways, the argument as a whole is not quite

successful, it must nevertheless be said that Fitzpatrick-McKinley offersan engaging array of ideas and a series of helpful critical evaluations ofother scholars and their works. Unfortunately, her book is even lesssuccessful than her argument.

The fundamental problem with the book stems from the fact that it

was not published until 1999, at least six years after it had been written.Such a delay immediately raises the possibility that the work will besomewhat out of date, a suspicion confirmed by the apparent lack of anysubstantive revision.

Thus, Fitzpatrick-McKinley treats a 1988 article by Criisemann,but not his much more detailed 1992 volume, translated into English in

1996 as The Torah: Theology and Social History o f Old TestamentLaw} Missing from her discussion as well are major new studies, suchas: P.R. Davies, Scribes and Schools;3 B.M. Levinson, Theory and

Method in Biblical and Cuneiform Law;4 C. Shams, Jewish Scribes inthe Second Temple Period5 and P.G. Schmidt,Probleme der Schreiber,der Schreiber als Problem.6 It should be noted that two of thesevolumes even appear in the same series as Fitzpatrick-McKinleys book.

The absence of adequate revision manifests itself in compositionaldifficulties as well as bibliographical omissions. The volume is repletewith unnecessary cross-references that convey a sense of unclarity onthe part of the author and muddy the readers train of thought. On

2 Frank Criisemann, The Torah: Theology and Social History o f Old Testament Law

(Fortress Press 1996).

3. P.R. Davies, Scribes and Schools (Knox 1998).

4. Theory and Method in Biblical and Cuneiform Law (B.M. Levinson ed., Sheffield

Academic Press 1994).

5. C. Shams,Jewish Scribes in the Second Temple Perio d(Sheffield Academic Press 1998).

6. P.G. Schmidt,Probleme der Schreiber, der Schreiber als Problem (F. Steiner 1994).


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several occasions, cross-references are adduced as proof of a point that

either has already been made or will be made in the future, but it is notalways clear that the section in question actually proves any such thing(e.g. 151 n. 14 cites ch. 3, 1, for a point that appears to be exactlyopposite to the one made in that part of the book).

Better editing would also have eliminated a number of

duplications, especially with regard to quoted material. For example,the same quotation from B. Kovacs appears on three separate occasions.

(29 n. 6, 61 n. 17, & 104) A duplication of some sort also appears in theauthors text in the last paragraph on 130 and the first paragraph on 131.

The Twelve Tables of Roman Law appear to be introduced on 62, butthey have already been referred to by the author on 60. Such problemscertainly do not render the authors argument incoherent, but they domake for repetitive and sometimes frustrating reading. She should havebeen better served by her publisher.

With patience, however, the reader will be engaged and rewardedby this interesting and thoughtful interdisciplinary work. It is to behoped that Fitzpatrick-McKinley will continue to develop her ideas and

elaborate more systematically what is at its core a creative anddistinctive approach to Old Testament law.

Stephen B. Chapman^

t Assistant Professor of Old Testament, Duke Divinity School, Durham, North Carolina.

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Review_Transformation of Torah From Scribal Advice to Law