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The Oxford Bible Commentary Line-by-line commentary for the New Revised Standard Version Bible.

Law.

1.

Within the domain of Bible interpretation law constitutes a special case and deserves separate treatment. The canon of Scripture which emerged as authoritative in Second Temple Judaism had at its heart a body of law, the Torah of Moses, which had become universally regarded as the foundation of the Jewish polity. Zealots and other renewal movements and sects exerted unrelenting pressure to maximize the application of this law to everyday Jewish life.

2.

One obvious way of applying the law was through the Jewish courts. The legal system in Palestine throughout the Second Temple period was complicated and is not well understood. The Jews there found themselves living under different political regimes. Sometimes they were ruled directly by foreign powers—Persians, Greeks, and Romans. Sometimes they enjoyed independence, or quasi-independence, under their own native rulers—the Hasmoneans, and Herod and his sons. The change in the overall political authority, however, probably did not fundamentally affect the administration of Jewish law or the functioning of the Jewish courts. No state authority had either the political will, the bureaucracy, or the police force to impose a unified legal system throughout its domains. Most seem to have been willing to allow the separate ethnic groups to dispense their own law in their own courts—while reserving for state adjudication the most serious cases, e.g. those involving state security or capital offences. Under Roman rule (and almost certainly earlier), in addition to the Roman tribunals, there existed parallel networks of overlapping ethnic courts administering various systems of ethnic law—Jewish, Nabatean, Greek, and Samaritan.

3.

On the face of it the legal system was somewhat chaotic, but, in fact, it probably functioned fairly efficiently. The ethnic courts were basically courts of conciliation which attempted to promote agreement between litigating parties. Any skilled conciliator could play this role, provided both parties to the dispute agreed to submit their case to him and to abide by his decision. There is evidence to suggest that within a given region the various ethnic courts may have influenced each other's practice and, perhaps, even inclined towards the creation of a local common law, so that the justice anyone received in the courts of one ethnic group might not have differed much from what one would have received in the courts of another ethnic group. However, the existence of parallel courts may have tempted people to ‘shop around’ for justice, and to present their cases in the court which they felt would be most favourable to them. This practice was frowned upon in later rabbinic law, and probably earlier as well. Though the rabbis acknowledged that ‘the law of the state is the law’, they encouraged Jews to keep their legal disputes within the Jewish community and to submit them to Jewish courts. The Talmud stipulates that ‘any place wherein you find court sessions in the market-place, even though their laws are like the laws of Israel, you are not permitted to rely on them’ (b. Git. 78b). Thus by exercising communal self-discipline the Jews had the possibility of running a largely autonomous Jewish legal system, whoever was in overall political control.

4.

By late Second Temple times there were probably three levels of court within the Jewish legal system in Palestine. The highest court was the Great Sanhedrin. It convened in Jerusalem in the Chamber of Hewn Stone (Lishkat ha-Gazit), which was located somewhere on or near the Temple Mount (ANTH B.I). Functioning both as the supreme court and the supreme legislative assembly of the Jews, it would have reserved to itself cases which were politically sensitive, such as the trial of Jesus. The country was divided, according to Josephus, into eleven regions (J.W. 3.54–5), and the regional capitals probably contained regional courts. Finally, scattered throughout the major rural settlements were local courts which met on Mondays and Thursdays, the two market-days in the week. Much remains deeply obscure about even the most basic features of these arrangements. How the courts functioned, what their respective jurisdictions were, who appointed the judges, what qualifications and training judges were required to have, how the courts were financed, how (if at all) cases were referred to the higher courts, and what system of enforcement backed the decisions of the courts, are all fundamental questions to which we have few answers. The Mishnah provides some information. It suggests that local sessions required a bench of three judges, regional sessions a bench of twenty-three, and sessions of the Great Sanhedrin a bench of seventy-one, and it attempts to differentiate the jurisdictions of the different courts, but it leaves many points obscure, and it is probably to some extent prescriptive rather than descriptive of actual practice.

5.

In principle the Jewish courts would have claimed that they applied the Torah of Moses, but in practice they cannot have done so in any very direct way. For a number of compelling reasons it is highly unlikely that judges in a court would have unrolled a scroll of the Torah, consulted the relevant section and passed their judgement. In the first place the form in which the Torah is cast makes it very inconvenient for everyday legal purposes. It combines strictly legal material (halakah) with large quantities of legally irrelevant narrative (aggadah). It mixes together commandments that fell within the jurisdiction of the courts and were enforceable through them, with commandments that belonged more to the domain of one's conscience and personal relationship with God, and whose enforcement was left ‘in the hands of heaven’. Important rulings on the same subject are scattered in different parts of the text, and, when they are compared, they do not always tally. Though, as modern literary analysis has shown, the Pentateuch embodies earlier law-codes, it is not a law-code itself, and its direct usefulness in a court of law would have been severely limited.

6.

A second problem with using the Pentateuch as a body of practical law to be applied in the courts is that it is incomplete. Important areas of law—laws of contract, marriage and divorce, and inheritance—are either touched upon only sketchily or not at all. It is thin on evidence and procedure. All this is the very stuff of the law, and the courts, if they functioned at all, must have formulated ways of dealing with these matters. The Torah of Moses, if it constituted the law of the community, must have been heavily supplemented in practice. These supplements would have come from a variety of sources. One source was probably the decisions of the courts themselves, which would have created precedent. Another would have been the custom of the community. Custom (minḥag) was recognized by later rabbinic jurisprudence as an important source of law, and there is no reason to think that the same would not have been true in Second Temple times. Indeed, it is possible that there was considerable variation in the detailed application of the law across the country, owing to the force of local custom.

7.

All law in practice requires interpretation. This would have been as true of the Pentateuch as of any other legal text, even of those parts which are reasonably full and clear. With the passage of time much of this interpretation would have become traditional: lawyers and judges would have reached a consensus as to how certain terms and clauses were to be understood, though, as we shall see, there was always room for disagreement. Ancient law tended to be conservative: innovation was not encouraged, at least in the practice of the law. There must have been a body of traditional interpretation which stood side by side with the Pentateuch, without which it could not have been applied. This too, like custom and case law, would have supplemented the Torah and created law.

8.

The process of clarifying and extending the law of Moses is well attested in the Second Temple Jewish legal literature that has survived. The texts from Wadi Murabba῾at near the Dead Sea illustrate legal documentary forms, such as marriage contracts (kĕtûbbôt) and bills of divorce (gittîn), which though not given in the Torah itself, would have been necessary for the implementation of the law. We find similar documents embedded in the Mishnah. A case in point is the famous Prosbul of Hillel, which, arguably, was not so much intended to implement the biblical law of the sabbatical year as to ameliorate it (or at least one aspect of it) to the point of circumventing it (ANTH B.3). The bill of divorce from Wadi Murabba῾at (ANTH B.2; text with Fr. tr.: Benoit, Milik, and de Vaux (1961: 104–9)) is in Aramaic and dates to the early second century CE, but there is every reason to think that its legal forms are much older. And although the Mishnah was not edited till around 200 CE (see MAJ GEN B.11), there are no solid grounds for denying that the legal instrument of the Prosbul is accurately attributed to Hillel, the great Pharisaic scholar of the early first century CE.

9.

The surviving legal literature also demonstrates a clear tendency towards codification, that is to say, the rearrangement of the biblical laws in a more systematic, user-friendly way. Significantly all the surviving ‘codes’ combine, to greater or lesser extent, biblical material with interpretation of the Bible, and with custom, in a more or less seamless whole. The move towards codification is seen most clearly in the great Temple Scroll from Qumran (text: García Martínez and Tigchelaar (1997: ii. 1228–307); tr.: Vermes (1997: 190–219); commentaries: Yadin (1983 ); Maier (1985 )). Several copies of this Hebrew text seem to have been preserved. The main copy palaeographically dates to the Herodian period, but the text itself was probably composed somewhat earlier, possibly towards the end of the second century BCE. The code, as its name suggests, has largely to do with temple matters, but it also includes sections on procedure, on laws regarding the king (ANTH B.4) and on family law. The text, unlike Deuteronomy, is put in God's mouth and some have suggested, probably wrongly, that it was meant to replace the Torah. The Temple Scroll was produced by the Dead Sea sect and represents their view of how the temple and the state should be run. It presents an idealized plan of the temple and its courts that differs fundamentally from the layout of the temple which stood in Jerusalem in the sect's day. It is a plan of the temple that would be erected at the end of history, when the present polluted sanctuary would be destroyed, and its illegitimate priesthood and sacrifices replaced. The Temple Scroll has, therefore, an eschatological orientation. It is, none the less, indicative of interest in codification of the law. The Torah of Moses as stated in the Pentateuch needed clarification and supplementation before it could be applied in the messianic age.

10.

There is abundant evidence, both from Jewish and non-Jewish sources, that the observance of sabbath was one of the defining practices of Second Temple Judaism. Sabbath is clearly enjoined in the Torah, but the exact laws of sabbath observance are remarkably unclear. The Damascus Document from Qumran illustrates one attempt to codify sabbath law (ANTH B.5). Its sabbath code is found in the section of laws which forms the second, major part of this work, and it integrates both Torah and sectarian law. (On the Damascus Document see MAJ GEN F.3.)

11.

Historically the most important of the early Jewish law codes is the Mishnah. Tradition ascribes the editing of this massive Hebrew work, probably correctly, to Rabbi Judah the Prince, around 200 CE (ANTH B.3, 6; text: Albeck (1952–8 ); tr.: Danby (1933 ); introduction: Stemberger (1996: 108–48)). It contains a digest of the debates and discussions on the law which took place within the rabbinic and Pharisaic schools over the previous 150 years. Though it is fuller and more systematic than the Torah, it is not, in fact, a code of decided law. On many issues it gives a range of opinions from competent authorities, together with the arguments deployed to support them. It was cast in this form because it was intended not simply as a cut-and-dried code to be applied in court, but as a manual for training lawyers to think jurisprudentially. The Mishnah became the basic text for study within the rabbinic schools after 200, in Babylonia as well as in Palestine, and two great Aramaic commentaries on it were created—the Jerusalem Talmud (edited c.400 CE) and the Babylonian Talmud (edited c.500 CE). (The standard edns. of the Jerusalem Talmud (often reprinted) are Krotoshin (1866) and Romm (1922); tr. Neusner (1982–94 ); the standard edn. of the Babylonian Talmud (often reprinted) is Romm (1880–6); tr. Epstein (1935–52 ); introduction: Stemberger (1996: 164–224).)

12.

The Torah of Moses was applied with greater or lesser rigour in the Jewish courts, and thereby was clarified, modified, and extended. But it was much more than a system of practical law, and was an object of interest to more than the judges and professional lawyers. It was the constitution of Israel and the central religious authority in Judaism. All sects and parties in Judaism cited its support, and claimed to have exclusive insight into its meaning. The Torah formed the battleground in inter-sectarian debates. This function is well illustrated by the so-called Halakic Letter (4QMMT) from Qumran. (Text: Qimron and Strugnell (1994); García Martínez and Tigchelaar (1997: ii. 790–805); tr.: Vermes (1997: 220–8); see further Kampen and Bernstein (1996 ).) Several copies of this intriguing Hebrew document, all dating from the late Hasmonean or Herodian periods, have been identified among the Dead Sea scrolls. Even when all the extant copies are pieced together, the document still remains fragmentary and enigmatic, and, crucially, its opening is missing. However, it has been plausibly suggested that it is the remnants of a letter which was sent by the Teacher of Righteousness, the founder of the Dead Sea sect, to the high priest in Jerusalem, urging him to accept the Essene interpretation of certain moot points of law, rather than the interpretation of the Pharisees (ANTH B.7). The Halakic Letter clearly shows that what was at stake in these inter-sectarian disputes was not simply the truth but political power. Whichever party or sect persuaded the powers that be to adopt its view of the meaning of Torah in effect became part of the government, and could claim to be the real rulers of the state.

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