Law and theology in the Covenant Code

The paper considers the relationship between law and theology within the Covenant Code. The first part o f the discussion reviews the influence o f the “divine law * hypotheses o f Alt and Noth, on contemporary scholarship. Particular reference is made to the consequences which Weinfeld draws from this hypothesis, fo r his view of the secularisation process in the Deuteronomic code. Subsequently, Halbe’s theory concerning the develop­ ment of Israelite law from a body o f divine Privilegrecht in Exodus 34:1126, is discussed. Despite the methodological rigour o f Halbe's redactional analysis, the theory that the divine will serve as the primary catalyst fo r the development o f ancient Israelite law is rejected. In accord with the recent redactional analyses o f the Covenant Code by Osumi, CrQsemann, Schwienhorst-SchOnberger and Otto, it is accepted that the integration of law and theology represents a secondary stage of the code’s compositional development. The major part o f the paper investigates the quite distinct reconstructions o f the theological validation of law by these recent studies. 1 INTRODUCTORY COMMENTS Towards the end of his analysis of the redactional shaping of the Covenant Code, Otto makes the crucial observation that “Die Rechtsgeschichte Israels ist als Geschichte der Integration des Rechts in den Gotteswillen zu schreiben”1. These remarks seem fairly self-evident. There is, after all, hardly any question that ancient Israelite law derived its ultimate authority from Yahweh. In fact, many scholars have worked from what may be referred to as a “divine law” hypothesis, which posits an originary and fundamental connection between Yahweh and the development of biblical law. The significance of Otto’s study is that it exemplifies a growing realisation that the connection between law and theology is by no means as direct or obvious as has generally been assumed. Thus Crusemann asserts that early Israelite law was in no sense divine law (Gottesrecht), and his view is shared and explicitly motivated by a number of significant recent German works which all deal with the problem of the redactional formation of the Covenant Code i.e. Otto, Schwienhorst-Schonberger and Osumi2. The purpose of the present paper is to explore the implications of these recent redactional studies for understanding the relationship between 160 LAW AND THEOLOGY law and theology within the Covenant Code. In particular, it will be asked how if at all the diverse redactional constructions which they propose, can illuminate socio-religious processes which may have led to the increasing integration of law within the will of Yahweh. While the discus­ sion is specifically concerned with the Covenant Code, it is clear that a fresh assessment of the social and theological forces which were at work in its formation, has wider ramifications for the analysis of biblical law. To name only one, but salient, point. It is well known that Weinfeld, whose opinion will be dealt with in more detail in the next section, has proposed that the Deuteronomic Code represents the increasing desacralisation ad secularisation of Israelite law over against the earlier Covenant and (sic!) Holiness Codes. In contrast, this paper at least suggests that the Deuteronomic Code stands in the continuum of the process of theological legitimisation which was at work in the Covenant Code. It is thus quite fallacious to argue that Israelite law is characterised by a process of growing secularisation. The analyses of Otto, Schwienhorst-Schonberger, Osumi and CrQsemann, must be placed against the relief of earlier and current research trends. Accordingly, the first part of the paper will refer to Alt and Noth’s appraisal of apodictic law, as a basis for a critique of various attempts to advocate a “divine law” approach. Subsequently, the work of Halbe, which has laid the basis for all further redactional analysis of the Covenant Code, will briefly be reviewed3. The more recent German studies all adopt a more or less critical stance towards his thesis that the redactional formation of the Covenant Code can be traced to an original layer of divine Privilegrecht. A final introductory comment on the paper’s primary engagement with German studies is in order. Various recent works on the Covenant Code adopt methodological positions, or engage a line of enquiry, which afford no perspective on the problem of law and theology. Thus, Westbrook’s option to view biblical law as merely a part of the Ancient Near Eastern law, and to eschew questions of internal redactional develop­ ment, eliminates the possibility of delineating specific theological characteristics within the Covenant Code. If biblical law codes do not represent autarchic systems, but are solely components of a coherent and largely static body of Ancient Near Eastern material, then it is methodo­ logical impossible to assume that the contents of the Covenant Code could be influenced by distinctive developments within Israelite religion4. Carmichael relates the Mishpatim (Ex 20:23-23:19) to the literary activity of Deuteronomic scribal circles, who created the laws on the basis of the ISSN 0257-8891 = SKRIF EN KERK Jrg 17(1) 1996 161 Jacob-Joseph and Exodus narratives, following models from Ancient Near Eastern codes. His view deliberately rejects an investigation of historical processes which could have facilitated the integration of legal material under Yahweh’s patronage3. Finally, Marshall pursues an anthropological approach which, while highly suggestive, does not address the question of the relationship between law and religious ideology6. 2 THE DEVELOPMENT OF A “DIVINE LAW” HYPOTHESIS UNDER THE INFLUENCE OF ALT AND NOTH Alt consolidated Jepsen’s distinction between four bodies of legal corpora within the Covenant Code7, into the two formal categories of apodictic and casuistic law. As is well-known, he identified three series of ten or twelve apodictic stipulations in the Decalogue (Ex 20), the list of curses in Deute­ ronomy 27:15-26, and a third list consisting of various prohibitions from the Covenant and Holiness codes1. Typifying these injunctions as unique to Israel, he could claim that they were rooted in the covenant relationship with Yahweh, and that their seven-yearly proclamation at the Feast of Tabernacles formed the basis for the covenant renewal9. In distinction from the casuistic laws, therefore, the apodictic commands point to the incor­ poration of ius, fa s and ethos within the divine will, as a fundamental and pristine aspect of Israelite religion. The clash between the apodictic and casuistic law, which is reflected in various passages in the Covenant Code, provided the impetus for the gradual absorption of various areas of civil or “secular” law within the sphere of Yahweh’s sovereignty10. Subsequently, Noth’s identification of the amphictyony as the institu­ tional sphere in which the apodictic laws were applied and preserved by the minor judges (cf. Judges 10:1-5; 12:7-15), significantly reinforced Alt’s theory11. While casuistic law belongs to the normal judicial activity at the gate12, the divine law was reserved for special cultic centres and ceremonies (specifically the Feast of Tabernacles) where Israel was confronted with the covenant demands of Yahweh13. Weiser could even claim that the reference to Samuel’s judicial activity in 1 Samuel 7:15-17 does not present Deuteronomistic redaction, but rather preserves a histori­ cal tradition concerning his application of the divine law, in continuity with the minor judges14. The special status of apodictic law assumed a farther dimension which was never intended by Alt, when it was interpreted in a Barthian sense as the product of divine revelation1*. The theses which were developed by Alt and Noth have of course been submitted to substantial critique. There is general consensus that 162 LAW AND THEOLOGY apodictic law is not specifically Israelite16. Within the Gattung of “apodictic law”, Gerstenberger has convincingly distinguished between apodictic prohibitions and commands which express normative stipulations, and those which belong with the casuistic laws to the sphere of justice in the gate17. The dismissal of Noth’s amphictyony hypothesis has also refuted the supposed institutional setting of apodictic law18. While the issue of the type of judicial activity if any which can be associated with the minor judges and a figure such as Samuel is disputed19, it is at least clear that they could not have fulfilled any special role in the administration of the so-called divine law. Finally, recent studies have substantially modified the rather simplistic thesis concerning “justice at the gate” , in favour of a more intricate appreciation of the social spheres in which the casuistic law developed in especially the premonarchic period20. More pertinent to the specific interest of the present discussion, however, is that such modifications of Alt and Noth’s views have not necessarily engendered any greater clarity concerning the relation between law and theology. It is notable that Gerstenberger could already argue that within the body of apodictic normative stipulations, only the sacral provisions (fas) enjoy a primary link with the covenant. The connection between the larger group of social normative stipulations {ethos) and the covenant renewal ceremonies at the Feast of Tabernacles is a secondary development, which followed their primary association with the Israelite clan ethos21. Gerstenberger’s analysis suggests that the process which led to the incorporation of ius, fas and ethos within the divine will is far more complex than Alt assumed. Nevertheless, various scholars have continued to posit an originary and germinal link between the Deity and biblical law. In some cases the argument for such an incipient connection seems to rest on sheer assump­ tion for example in assertions concerning God as the “fountainhead of the law”22, or as the “source and formulator of the law”23. In Paul’s case, the theocentric frame sections of the Sinai periscope (Ex 19:3-6, 23:20-33) provide a theological motivation which reinforces the status of the Decalogue (Ex 20:1-17) and the Book of the Covenant (Ex 20:22-23:19) as divine law24. These scholars display little interest in internal textual indicators within a corpus such as the Covenant Code, as to the historical processes which led to the incorporation of ius, fas and ethos under the patronage of Yahweh25. What is clear, is that such divine law theses provide a springboard for various claims concerning characteristic values and features which are attributed to the legal corpora of the Bible26. The clarificatory perspective which is afforded by some other scholars who ISSN 0257-8891 = SKRIF EN KERK Jrg 17(1) 1996 163 work with a keener historical awareness, is hardly more illuminating. Both Donner and Boecker refer to the gradual process through which the diverse material which is contained in collections such as the Covenant Code was subsumed under the divine will. Yet, both of them are content to merely affirm the fundamental conviction that all law stems from Yahweh, as the catalyst which provided the integrative force for the collation of the laws from the time of the pre-monarchic period27. Because of the widespread influence of his views on the Deutero­ nomic laws, one final example of a fundamental divine law hypothesis deserves more extensive comment. I refer to Weinfeld’s theory concerning the seminal role of the original short form of the Decalogue in Exodus 20, which he regards as the foundation document of the Israelite community, on the development of Israelite law28. According to him, the decalogical stipulations, which established the primary covenant relationship with Yahweh, provided the impetus for the further elaboration of the judicial tradition which is reflected in various collections within the Hebrew Bible. Despite his postulation of a different institutional setting (the Shebuot Festival) for the yearly proclamation of the Decalogue29, Weinfeld’s theory presents a logical continuation of the views of Alt, and other scholars who accept the intrinsic nature of Israelite law as rooted in the will of Yahweh. The decisive aspect of Weinfeld’s thesis becomes clear when he turns to the description of the “secularisation” process in the Deuteronomic Code30. Various statements in his discussion suggest that he understands the development of biblical law along the lines of the evolutionary scheme which the influential jurist Maine proposed during the nineteenth century31. Now, it is well known that legal scholars and anthropologists have refuted Maine’s notion that primitive law necessarily emerged as a mixture of religious, moral and legal precepts which had a divine origin, while later stages of mental progress were supposedly characterised by the progressive severance of law from the authenticating sphere of religion32. Purely in terms of legal anthropology, therefore, Weinfeld’s hypothesis enjoys no indisputable support. His attempt to support the “secularisation” theory by means of conceptual arguments from the contents of the Deuteronomic Code, is equally questionable. In a recent review of Weinfeld’s opinion, Lohfink cogently maintains that the Deuteronomic code is not in the least concerned with a circumscription of the cultic sphere in favour of a more abstract expression of religion. Quite the contrary, the code develops a new notion of sacrality in which the whole community of Israel, which is especially constituted through festal participation at the central sanctuary, establishes a new sacrum. Lohfink supports his thesis by delineating 164 LAW AND THEOLOGY common elements of a “pilgrimage pattern” in various texts of the Deuteronomic Code33. In summary, the preceding critique of “divine law” hypotheses whatever their differences can be recapitulated as follows. It is not disputed that biblical law codes acquired the distinctive characteristic that they laid claim to divine legitimation. By this means they seem to have appealed to a different authoritative basis than other ancient Near Eastern codes34. What is at issue is the recognition of the complex redactional and historical processes which led to the invocation of divine authority. Specifically with reference to the Covenant Code, the naive assumption of divine legitimation whether it is based on a special form of law, and/or on the primary influence of a body of material such as the Decalogue places the analysis of biblical law on an erroneous basis. The impression is created that Yahweh’s (covenant) sovereignty served as an impetus for the integration of the diverse material which is contained in the code. It is easy to understand that such a view can accord a primary status to the collection of largely apodictic material which is found from Exodus 22:17fP5. Such a view overestimates the integrative power of the Yahweh faith in at least pre-monarchic Israel, and impedes the search for the social contexts in which early Israelite law developed. What is more, Weinfeld’s theory illus­ trates how a “divine law” approach can lead to fundamental methodologi­ cal difficulties in the analysis of the development of biblical law. The “divine law” approach has, however, received far more substantial methodological support in Halbe’s detailed redactional analysis of the formation of the Covenant Code. An appraisal of his view forms an indispensable basis for a review of various recent studies which suggest that the redactional growth of the Covenant Code points to a more gradual connection between law and theology. 3 THE PRIMACY OF THE DIVINE PR1V1LEGRECUT IN HALBE’S REDACTIONAL ANALYSIS Halbe draws on Weber’s use of the term Privileg to refer to a premodern stage of legal development, in which special rights and duties are exclusively enforced within the framework of membership in a particular group. Any person would thus have been involved in a network of personal unions, which constituted “legal communities” within which specific rights and duties were upheld36. Halbe transposes the notion of Privileg to the description of the exclusive covenant between Yahweh and Israel. He contends that the redactional development of the Covenant Code, should be ISSN 0257-8891 = SKRIF EN KERK Jrg 17(1) 1996 165 understood in terms of the progressive incorporation of social and civil stipulations within a body of primary cultic material, or Privilegrecht, which defined the parameters of the basic relationship between Yahweh and Israel. In support of his thesis, Halbe takes his cue from an old corpus of Privilegrecht which he finds in the text of Exodus 34:10-26*. The original body of material (Ex 34:10a/2b-15a, 18a£*7b, 19*,20-21,25* and 26b) together with a first amplification in a “Pilgrimage” layer (Ex 34:18aa, a£*,22-23,24b,26a), can probably be traced back to a distinctive depiction of the Sinai festival at Gilgal in the time of the Judges. Cast in the form of a divine address, the Privilegrecht consisted of an introductory reference to Yahweh’s manifestation of his majesty (10aj3-lla)37, which served as the basis for the main commandment in verses 12-15a3S, and various individual stipulations in 18-26*39. With its polemic against the indigenous cults and the call to recognise Yahweh by means of festival times and cultic practices, the purpose of the Privilegrecht was to provide a basis for the consolidation of the loose association of tribal groups into a larger communal entity, which could successfully address the challenges of the Canaanite cultural context40. The existence of this older body of Privilegrecht provided the basis for the composition of the Covenant Code from an original layer of material, and two subsequent redactional expansions. The original layer of the code (the “A-SchichC Ex 23:23-24,31b-33*; 20:24aa,26a; 22:27-29; 23:10-12a, 14-19), consists of the introductory warning against the worship of the Canaanite gods, and various sections of purely sacral law41. A subsequent first expansion, (“Ausbaustufe 1” or the “ Grundzusammenhang” Ex 20:24-26, 22:20aa,22b,24-30, 23:1-7, 10-12a,13-19) integrated two units of material with a social nature dealing with the protection of marginal groups (Ex 22:20:20aa,22b,24-26) and the safeguarding of the judicial system (Ex 23:1-7) with the sacral laws. The main body of the Grundzusammenhang thus consists of two parallel sequences of social (22:20aoi,22b,24-26/23:1-7) and religious stipulations (22:27-29/23:1012a), which each end with a stylistically similar closing verse (22:30/23:13)42. The conscious redactional modelling of Ausbaustufe 1 as Privilegrecht is evident from two characteristics. Firstly, both units of social law end with divine self-predications in 22:26b7 (’3X ]13n*’3 ’njpDBn) and 23:7b/9 (yEH p’ïïSX'xV ’3), which emphasise that provisions for the safeguarding of the community fabric present the direct and personal will of Yahweh43. Secondly, both verses 20:30 and 23:13, which present the climax of each parallel sequence within this redactional layer, emphasise 166 LAW AND THEOLOGY Israel’s obligation to honour the exclusive claims of Yahweh44. The oral proclamation of the Grundzusammenhang within the cultic realm thus confronted Israel with the concrete demands of the divine Privilegrecht*5. In the last redactional phase (Ausbaustufe II), the decisive point was reached at which an old Privilegrecht of Yahweh was transformed into a law book46. By means of the incorporation of the whole block of Exodus 21:1-22:19, consisting of a selection of case law precedents which derived mainly from the period of Samuel, the extended Privilegrecht was ampli­ fied to include a collection of so-called “Private law”47. This substantial modification was necessitated by the fact that while pre-monarchic Israel was already forming itself as a “legal community” under Yahweh, the practical organisation of its life was still characterised by the clashes between the judicial norms of various clan groups. The formation of the Mishpatim is an attempt to develop a common set of legal principles, and to accord them authority by grounding them in the “privilege” relationship between Yahweh and Israel48. The resultant, qualitatively new composition of the Covenant Code, represents the response of conservative groups to the crisis of the united monarchy. In their view, the basis of Israel’s life is to be found in the bond with Yahweh, rather than in the kingship and its institutions49. By virtue of his rigorous redactional analysis, Halbe advances a far more compelling methodological motivation for the argument that the theological nature of Old Testament law is its characteristic and essential quality. His assessment of the relationship between Exodus 34:10-26* and the original layer of the Covenant Code is admittedly somewhat equivocal. Nevertheless, even though he argues against direct literary dependence, he accepts that the “ Grundschicht” of the Covenant Code was shaped in the sphere of influence of the Privilegrecht material50. Thereby he identifies the conception of the religious relationship between Yahweh and Israel which is found in Exodus 34, as the distinctive basis for the development of the legal and ethical stipulations which are contained in the Covenant Code. The plausibility of Halbe’s thesis is of course dependent on the literary-critical status which is allocated to the material in Exodus 34:1026* a matter which will be dealt with in the discussion of the views of Osumi and Criisemann. Quite apart from the question of Exodus 34:10-26*, Halbe’s study again raises the problem of legal sanction. Thus he argues that while the corpus of Mishpatim in Exodus 21:1-22:19 had antecedents in existing case laws, it never existed in a form which was separate from the frame of the Privilegrecht51. Consequently, the Mishpatim were only able to present a ISSN 0257-8891 = SKRIF EN KERK Jrg 17(1) 1996 167 common set of judicial norms for the collective life of Israel, by virtue of their incorporation within the divine Privilegrecht. In similar vein, he concedes that the natural authority of community groups stood behind the basic material that is now contained in the social laws (Ex 22:20aa,22b,2426/23:1-7)52. Yet is was only through their incorporation within the redactional framework of the Privilegrecht, that such laws began to enjoy collective legitimacy within “Israel”. The significance of Halbe’s categori­ cal correlation between broader societal recognition and theological authorisation, is that it clearly articulates assumptions which seem to be more implicit in the “divine law” hypotheses which were reviewed in the preceding section. The validatory role which theological considerations exercise in the development of the Covenant Code, is assessed quite differently in the recent studies of Osumi, Crusemann, SchwienhorstSchónberger and Otto. 4 THE THEOLOGISATION OF LAW IN RECENT ANALYSES OF THE COVENANT CODE 4.1 Osumi and Crusemann The methodological assumptions which characterise the works of Crúsemann and the revised doctoral dissertation of his student Osumi, are sufficiently similar to warrant concurrent assessment. The following remarks will focus on the more extensive analysis of Osumi. His redactio­ nal construction, which is closely followed by Crusemann, defines itself as a conscious engagement with the views of Halbe53. Osumi understands the formation of the Covenant Code as a two stage process which consisted of successive second person singular and plural redactions. The basic structure of the code was shaped by a second person singular redactional layer, which was authored between the late eighth and early seventh century BCE as a product of the so-called Jerusalem high court. This redaction, which stretches from Exodus 20:24-23:33, consists of a Mishpatim (21:2-22:19) and “Wisdom” (22:20-23:33) section54. The Covenant code assumes a quite different texture at the hands of a subsequent second person plural redaction, which was responsible for the final shape of a main unit which extends from Exodus 21:1 to 23:1355. The discussion will focus on the factors which facilitated the integration of law within the divine will in the formative second person singular redaction. It may merely be noted that Osumi finds quite distinct theological impulses, which he traces to the influence of the Jerusalem 168 LAW AND THEOLOGY holiness tradition, at work in the final, proto-Deuteronomistic redaction56. His analysis of this last compositional phase, raises the important question of the influence of the Jerusalem holiness tradition on the shaping of the Covenant Code. While this matter will not be pursued here, it will receive further attention in the review of Otto’s work. A number of themes which are dealt with in both the “Wisdom” and Mishpatim sections of the code, point to the catalyst which brought about its basic configuration at the hands of the second person singular redaction. Thus, both Criisemann and Osumi relate the problem of the “resident alien” (13), which is mentioned in Exodus 22:20,22 and 23:9, to the refugees who fled to Judah, and especially Jerusalem, after the fall of the northern kingdom57. Within the “Wisdom” section, the importance of the “alien” theme is clear from the pivotal role which Exodus 22:20a and 23:9a* play as frame verses around the body of social laws in the unit of Exodus 22:20a-23:9a*58. Osumi also makes a detailed comparison between the sections which deal with pledges (Ex 22:24a,25-26) and judicial procedure (Ex 23:1-8), and Amos 2:6-8 and 5:10-1259. His attempt to demonstrate the code’s literary dependence upon the Amos units may be contentious. Nevertheless, the correspondences between the material create a plausible social context, within which at least the protection laws of Exodus 22:20-26* could have arisen. The promulgation of such measures during the late eighth century BCE, reflects growing concern at the injustices which were occasioned by the system of rent capitalism, and the process of latifundialization against which the eighth century prophets inveighed so forcefully60. According to Osumi, such concern also led to the insertion of the slavery laws of Exodus 21:2-11 and 24-27 within the Mishpatim material by the second person singular redaction61. Criisemann’s assessment of the slavery sections marks his most significant difference from Osumi. Both Exodus 21:2-11 and 26-27 form part of the original body of Mishpatim, and reflect its concern for a balance between the rights of two parties62 in this case that of slaves and slave owners. However, the effect of the promulgation of the Mishpatim within the increasingly disparate monarchic society of the ninth century BCE, was to entrench the exploitative capabili­ ties of slave owners. The secondary insertion of the talion laws (Ex 21:2425) within the second person singular redaction, served as a substantial critique against such exploitative practices63. This difference of opinion in no way invalidates Criisemann and Osumi’s basic contention that the literary creation of the Covenant Code is a corollary of societal develop­ ments in late eighth century BCE Judah. ISSN 0257-8891 = SKRIF EN KERK Jrg 17(1) 1996 169 As has already been mentioned, Osumi’s delineation of the constitu­ tive second person singular redaction involves itself in an extensive debate with Halbe’s analysis. In terms of the specific interests of the present discussion, it is particularly significant to note how Osumi departs from Halbe’s thesis in his assessment of the Mishpatim section (21:2-22:19). In his view, this part of the code contains a basic layer of material (Ex 21:1,12,15-17,18-23,28-36; 21:37-22:16; 22:17-19), which had an inde­ pendent existence before its incorporation into the Covenant Code64. In their attempts to reconstruct the contents of this earlier body of legal material, Osumi and Crusemann appeal to the judicial authority which 2 Chronicles 19:8-11 purportedly attributes to the Jerusalem court65. According to Osumi, the areas of competence of this alleged court reveal an original corpus within the Mishpatim which consisted of two units, dealing with capital delicts and bodily injuries (Ex 21:12-36*)66, and property delicts (21:37-22:16). Given the problems that adhere to the historicity of the Chronicles text67, its use in the determination of the primary stratum of the Mishpatim section is extremely questionable. Despite such methodological difficulties, Crusemann and Osumi’s analyses constitute a significant break with the assumptions of the “divine law” hypothesis. Their demarcation of a body of precepts which owed its broader, societal validity to the exigencies of ordinary judicial life, asserts that the authorisation of such civil laws within ancient Israel was in no sense dependent on an association with an originary body of divine law. However, once Crusemann and Osumi turn to the processes which occasioned the theological motivation of law within the second person singular redaction, the influence of the older “divine law” hypothesis, and specifically Halbe’s thesis concerning the body of divine Privilegrecht in Exodus 34:11-26*, is immediately apparent. The basic configuration of the Covenant code presents the reworking and elaboration of the older section of casuistic law in the Mishpatim section, as well as the creation of the “Wisdom” section (20:24-26; 22:20a,22,24a,25-29; 23:1-8,9a,1012,13b*,14-21a,b/3, 22-23a,24,32,33b/3) through the reformulation of the cultic stipulations of Exodus 34:ll-2668. The preceding discussion has already indicated how problems such as the presence of resident aliens and the impact of rent capitalism, would have necessitated the amplification of the basic cultic prescriptions which were incorporated within the “Wisdom” section by social measures. Thereby the conviction was expressed that without protection of the weak and without social justice, Israel would loose its identity as the people of God69. Despite differences in date, the literary processes which Osumi and Crusemann trace in the 170 LAW AND THEOLOGY compilation of the “Wisdom” section i.e dependence on Exodus 34, and amplification of cultic regulations by social stipulations show remarkable analogies to Halbe’s analysis. Halbe’s influence is further evident in Osumi’s assertion that the “Wisdom” section formed the basis for the redactional incorporation and expansion of the Mishpatim section within the newly created code70. At the level of the second person singular redaction, therefore, “law” consisting of ius, fa s and ethos receives an explicit theological motivation through a redactional process which adapted and augmented the old divine Privilegrecht so that it could include the realms of ethical and legal practice. Osumi and Criisemann’s recourse to the divine Privilegrecht as embodied in Exodus 34:11-26, as the major clarificatory principle for understanding the process of the theological legitimation of law in the Covenant Code, is contentious. Despite their departure from a “divine law” hypothesis, they still assume that cultic and sacral laws provided the basis for the integration of civil law and ethical stipulations under the will of Yahweh. It may be asked to what extent their studies have broken with discredited methodological assumptions concerning the primary validation and subsequent development of Israelite law, by means of its association with the cultic sphere. Furthermore, their theories hinge on the redactional status which is assigned to Exodus 34:11-26. Reference has already been made to Halbe’s intricate literary-critical defence of an old corpus of Privilegrecht within this text. Crusemann argues for the recognition of an original body of cultic principles in Exodus 34:11-26 (34:12abB,14,15abB,16,18a*,2123,24b,26a), which reflect the social and religious challenges which the Yahweh faith encountered during the ninth century BCE (particularly from the Omride period onwards)71. Such a thesis contrasts sharply with the views of scholars such as Aurelius, Blum and Schreiner who view the material in Exodus 34:11-26, as Deuteronomistic (Dtr), and Nicholson who basically accepts Perlitt’s view on the Deuteronomic (Dtn) classification of the material in Exodus 34:10-2772. In my opinion, it is possible to maintain with Crusemann that Exodus 34:11-26 contains older, pre-Dtn/Dtr material. One may refer to Zenger’s extensive redactional analysis of the Sinai materia] in Exodus 19-34, in which he allocates the short “legal corpus” in Exodus 34:10-27’" to the Jehowistic configuration of the preceding tradition during the late eighth century BCE73. More recently Dohmen has argued that it is possible to go behind the Dtr redaction of Exodus 34 to establish the presence of a Jehowistic layer of Privilege law in Exodus 34:6-7,12-14*, 18-26*, which served as an impetus for the ISSN 0257-8891 = SKRIF EN KERK Jrg 17(1) 1996 171 formation of the primary version of the Decalogue in Deuteronomy 574. Zenger, Criisemann and Dohmen all establish different textual profiles of the pre-Dtr material in Exodus 34:11-26. Yet their studies at least support the identification of a pre-Dtr body of Privilege law within this textual unit. It is quite another issue, however, for Halbe, Criisemann and Osumi to contend that the second half of the Covenant Code (Ex 22:20ff the “Wisdom” section) was composed in conscious literary dependence on Exodus 34. Such an opinion raises complex literary and ideological questions, which it is impossible to review within the confines of the present paper. A few remarks must suffice. Firstly, the festival order which is found in Exodus 34:18-23* clearly predates that of Exodus 23:1419, especially in terms of the original relation of the rest-day to the time between the Mazzot festival and the festival of Weeks75. However, the presence of analogies between the two sections does not necessarily demonstrate literary influence on the Covenant Code in the decisive stage of its pre-Dtr redactional formation. Rather, the passage of Exodus 23:1419 may be classified as a Dtr insertion, for the purpose of emphasising the correspondence between the legal material in the Covenant Code and Exodus 3476. As far as the relationship between Exodus 23:20-33 and Exodus 34:11-16 is concerned, reference can be made to Blum’s discussion of these texts in conjunction with the related units of Judges 2:1-5 and Deuteronomy 7. Following Blum this paper accepts that Exodus 23:20-33 presents part of the Dtr epilogue to the Covenant Code, in which the theme of the separation of Israel from the foreign nations is used to stress the importance of the main commandment77. The allocation of both the units of Exodus 23:14-19, and 23:20-33 to the level of Dtr redaction, decisively undercuts the thesis of Halbe, Criisemann and Osumi. The material in these units plays a critical role in their delineation of the constitutive redactional formation of the Covenant Code. If such material is viewed as Dtr, then a quite different picture of the pre-Dtr compositional formation of the Covenant Code is necessitated. Put differently, the formation of the so-called “Wisdom” section cannot have taken place in the way which Criisemann and Osumi suggest. Logi­ cally, the entire redactional process which shaped the code has to be understood differently. In sum, the argument that the theological motivation of law presents a secondary development which took place in the late monarchic period as a response to social problems, is a valid and important insight. However, the thesis that this process took place on the basis of a body of divine Privilegrecht in Exodus 34:11-26* is untenable. A different reconstruction of the integration of law and theology in the Covenant Code is required. 172 LAW AND THEOLOGY 4.2 Schwienhorst-Schonberger Schwienhorst-Schonberger’s analysis shares various common assumptions with the works of Osumi and Crusemann. He also opts for a literary model, in terms of which the Covenant Code was formed through the reworking of a basic series of casuistic stipulations by two successive redactions. The basic structure of the Covenant Code (Ex 20:24-23:19) derives from a massive pronto-Deuteronomistic Gottesrecht redaction from the late eighth century BCE, which is characterised by a second person singular form of address. This redaction extensively reworked the material of a casuistic law book, found in Exodus 21:12-22:16*, whilst also incor­ porating the bulk of the material which is contained in the second half of the Covenant Code, namely Exodus 22:17-23:197*. The process of the theological integration of law was continued in a subsequent Deuteronomistic (DtrN) redaction, which is mainly characterised by a second person plural form of address79. Without changing the structural arrangement of the Covenant Code, this revision merged the existing material into the comprehensive framework of the Deuteronomistic History (DtrN). The present discussion will focus on the Gottesrecht redaction, and the compositional processes which led to its formation. Schwienhorst-Schonberger concurs with Osumi and Crusemann that the theological legitimation of law within the Covenant Code presents a secondary stage of its redactional development. However, he furnishes a more convincing explanation of the societal and judicial processes which accompanied the formation of the basic casuistic law book. The major part of his work indicates how the casuistic law book developed as a body of profane law before its inclusion in the Gottesrecht redaction80. He convincingly relates the primary layer of Exodus 21:12-22:16 to an egalitarily structured agricultural and pastoral culture based on kinship ties and living in open towns or settlements a situation which can be understood against the background of the newly founded town culture in Palestine during the Iron Age 1 period (1200-1000 BCE)81. The book owes its origin and first editorial expansions to the interplay between legal praxis the shaping of common law through the judicial activity of the clan elders at the gate, and Israelite scribal schools the locale where the common law was collected, modified and codified82. Until the eighth century, the developing collection of casuistic law served as a basis for conflict resolution, enjoying a normative character that was not appreciably greater than that of common law. It is was through the decisive Gottesrecht ISSN 0257-8891 = SKRIF EN KERK Jrg 17(1) 1996 173 redaction, that the casuistic law received a new validatory basis in the will of Yahweh83. The evolution of the Covenant Code is thus understood in terms of the development from profane to divine law. The continued activity of the scribal schools led to the literary formation of the Covenant Code, as a response to societal developments in the eighth century BCE. For a clear example of the modification o f the old casuistic law book by the Gottesrecht redaction, Schwienhorst-Schonberger points to the laws of asylum in Exodus 21:13-1484. These laws present a secondary qualification of the participially formulated prohibition of homicide in Exodus 21:12, which immediately preceded the provisions concerning non-fatal bodily injuries from Exodus 21:18ff as the introduc­ tion to the earlier law book85. Both the stylisation of the asylum laws as a divine address which is directed to a second person singular audience, as well as the concern of these laws to limit the operation of blood vengeance, serve as important indications of the literary and ideological characteristics of the Gottesrecht redaction. Through verses 13-14, the whole section of Exodus 21:12-17 in which verses 15-17 are also regarded as the product of the Gottesrecht redaction86 assume the quality of a divine address which now provide an introduction to the first main part of the Covenant Code in Exodus 21:18-22:1687. Within the contours of Exodus 21:1822:16, further indications of the redaction’s concerns are found in insertions which deal with debt-slavery (Ex 21:20-21,26-27) and additional provisions for the limitation of blood vengeance (Ex 21:23-24 [the talion law]; Ex 21:30 and 22:1-2)88. Finally the reference to the use of an oath to Yahweh in Exodus 22:10, reflects a development in procedural law with respect to the resolution of unsolved property disputes89. The interests of the Gottesrecht redaction are far clearer in the second main part of the code (Ex 22:17-23:9), as well as in the corres­ ponding units of Exodus 21:1-11 and 23:10-1290, and 20:24-26 and 23:141991, which provide the code with two outer frames. The redaction created part of this material de novo, and shaped the rest on the basis of a variety of extant material. At this compositional level, Exodus 22:17-23:9 displays a concentric structure in which social laws (22:20-26*/23:l-7) encompass a unit of religious provisions92. The divine self-predications in Exodus 22:26b7 and 23:7b/3, reinforce the humanitarian concern which links the sections concerning the protection of marginal groups (22:20-26*)93 and the safeguarding of judicial procedure (23:l-7)94. Such charitable concern is of course also apparent in the corresponding frame sections which deal with debt slavery (21:1-11), and the fallow year and rest day (23:10-12). As has already been stated, the programme of the Gottesrecht redaction correlates with the societal situation in the eighth century BCE. 174 LAW AND THEOLOGY Similarly to Osumi, the debt slavery laws are understood against the background of the prophetic activity of Amos9S. The prophetic critique of Hosea against the monarchy, is manifested in the reference to the ruler as a X’frJ in Exodus 22:2796, while traces of Hosea’s censure of non-Yahwistic cultic practices may also be displayed in the form of the altar law in the Gottesrecht redaction (Ex 20:24aa/3*b, 25-26)97. The upshot of Schwienhorst-Schonberger’s analysis is a redaction with a strong humanitarian concern (especially Ex 21:2-11, 15-17, 20-21, 26-27; Ex 22:20aa, 21b, 24a*, 25-26; 23:10-12), intent on the equitable dispensation of justice (22:10, 23:1-8) which would include the balancing of the rights of both parties in legal disputes (Ex 21:20-21; 22:1-2) as well as the limitation of the principle of blood vengeance (Ex 21:13-14, 23-24, 30; 22:1-2). Emphasis was placed on respect for societal authority structures in both religious and political dimensions, and on the recognition of Yahweh in cultic practice. A useful aspect of Schwienhorst-Schonberger’s analysis, is his recognition that the Gottesrecht redaction had to accommodate itself to the contours of the older casuistic law book in its literary activity. The resultant dominance of ius in the first part, and fa s and ethos in the second part of the code, presents a proto-Deuteronomic stage, which is still en route to the thorough interrelation of ius, fas and ethos in the Deuteronomic laws98. The influence of the older law book is apparent from a further interesting detail, to which Schwienhorst-Schonberger draws attention in his delineation of the code’s structure99. The preceding discussion has already pointed to the concentric structure which characte­ rises the second main part of the code (Ex 22:20-23:7(9)). In the first main part (Ex 21:18-22:16), however, the extant textual material precluded the creation of a similar concentric structure. As a result, the redaction was forced to follow other structuring principles. This structural detail reinforces Schwienhorst-Schonberger’s argument concerning the priority of the casuistic law book in the development of the Covenant Code. Schwienhorst-Schonberger’s study presents a compelling reconstruc­ tion of the processes which, in his view, occasioned the creation of the basic form of the Covenant Code as a book of divine law. His basic thesis concerning the development from profane to divine law is convincing, while he also substantially clarifies the societal developments and concerns which informed the production of the code as an expression of Yahweh’s will. In addition, the fact that he does not appeal to Exodus 34 as the cardinal literary impulse for the formation of the Gottesrecht redaction, must certainly be welcomed. The important methodological question of ISSN 0257-8891 = SKRIF EN KERK Jrg 17(1) 1996 175 whether a consistently literary approach represents an adequate basis for assessing the redactional growth of the code, cannot be addressed in the present discussion. More pertinent to the problem under consideration, is that Schwienhorst-Schonberger hardly addresses the question of the theological concepts which motivated the Gottesrecht redaction. There is a difference between describing the concerns of the redaction, which he does extensively, and explaining the decisive theological considerations by which they were motivated. In other words, if the clarificatory principle of an older divine Privilegrecht is refuted, which theological tendencies are at work in the contention that Yahweh is finally the author of Israelite law? For all its positive aspects, it is intriguing that Schwienhorst-Schonberger’s analysis never addresses this issue. Does he imply that it is not possible to understand the basis upon which law was subjected to a process of theological legitimation, or did he deliberately leave the matter open pending further investigation?