Joshua Berman

Joshua Berman is a senior lecturer in Bible at Bar-Ilan University and an associate fellow at the Shalem Center.  He is the author of Narrative Analogy in the Hebrew Bible (Brill, 2004) and Created Equal: How the Bible Broke with Ancient Political Thought (Oxford, 2008).

Knowing the Law: Statutory vs. Common-law Jurisprudence in the Biblical Concept of Law

How shall we know what the law is? For the Bible, the answer would seemto be simple: God's law is written, and is contained within the law codes of thePentateuch. Biblical law, within this intuitive paradigm, is a paragon of a statutorysystem of jurisprudence. A sovereign (God) lays down codified law in a written text.The words of the text are taken to be a closed system: only what is written in the codeis the law and no other sources of authority have validity other than the code itself.Yet, in the last twenty five years, scholars have backed away from this view. TheBible nowhere instructs judges to consult written sources. Narratives of adjudication,such as the trial of Solomon (1 Kgs 3), likewise lack references to written sourcesof law. No one collection of laws, nor even all of the corpora taken together displaya striving to provide a comprehensive set of rules to be applied in judicial cases.Biblical laws often bear motive clauses that do not address judges, but address theIsraelite nation as a moral agent.

Yet even as most scholars acknowledge that biblical law cannot be equatedwith legislation, there are many ways in which modern—and hence, anachronistic—notions about law continue to permeate discussions of biblical law. It is difficult toclear away intuitive assumptions without an alternate set of coordinates to assess theissue at hand in a new and different way. The situated character of our assumptionscomes into view only when we attain a well-developed alternative interpretativeframework. To move beyond a view of biblical law as legislation we need to identifya well-grounded empirical model that answers the fundamental questions: What islaw? How is law determined? What is the role of sanctioned texts in determining thatlaw?

In this study, I explore a great debate about the nature of law that sweptWestern Europe in the nineteenth century and propose that such an empirical model isat hand. One approach, a statutory approach to law, ultimately won out. Thisapproach to law has been intuitive for citizens of modern nation states for the pastcentury and a half. Yet in the earlier half of the nineteenth century it was the common-law approach to jurisprudence that predominated. This approach went largely out offavor at around mid-century and we have lost touch with its basic assumptions. Re-engaging the common-law tradition will enable us to see how modern assumptionsabout law permeate discussions of biblical law and how these assumptions are afunction of time and place. In the first part of this study, I lay out the basic parametersof this debate, tracing its historical evolution through the nineteenth century. In thesecond part of the study, I propose that the framework of the common-law traditionallows us to re-examine how law grew and evolved in biblical Israel. I speak here notonly of what may have happened historically. Rather, I maintain that a properreading of Scripture suggests that God's word was always meant to be re-interpretedand reapplied anew as circumstances changed.