The Fictions of the Laws of Moses, Hammurabi and the Gospel Jesus

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by Neil Godfrey

The following words were written by a scholar of the Bible.  To what historical scenario of the Bible do you think the words were referring?

The fact that so many scholars work with the “historical” hypothesis does not make it the correct one. 

Bible scholars can get away with saying things like that about books in the Bible as long as they are not talking about the Gospels. Some even question the entire historical basis of David and Solomon. But the Gospels are sacred windows opening out to the historical details of Jesus Christ. Not that critical scholars for a moment think that the narrative details themselves are historically accurate; they apply various methods in efforts to divine traditions, memories and sayings that supposedly lay behind those stories.

The author of the above words also wrote in the same chapter:

This particular thesis [that the text is describing genuine historical events] is protected from critical scrutiny because we lack the means of corroborating the historical reconstruction . . . 

I am skeptical about the conventional approach not only because its results are beyond the reach of examination. The problem is also that the approach too readily assumes that the texts straightforwardly lend themselves to historical . . . analysis. 

That is, the author is expressing disagreement with the practice of merely assuming that the contents of an ancient text are informing us about a genuine historical past. The problem with this assumption is that we have no way of corroborating the supposedly historical account. Is it possible that what we are reading was not written as historical memory at all? How can we tell?

The author does not question the historical appearance of the document. Yes, indeed, the text does in many ways look like genuine history. But our experience of the wider literary world, including the literary world of ancient times, reminds us that surface appearances can be deceiving. Some fictitious compositions have a “sophisticated, pseudo-historical character” that is well recognized anywhere except when it comes to the Bible:

There is little recognition of the problem posed by the exceedingly limited availability of material on which to exercise one’s historical imagination. The material available is mainly biblical, and much of it has a sophisticated, pseudo-historical character, a feature that has been constantly undervalued. 

The academic guild itself is responsible for pressure to read the Biblical narratives as windows into the historical past.

The pressure to automatically relate [a biblical passage] to its historical (in our sense of the term) background is strong. 

The extracts above have been taken from the Introduction to The Origins of Biblical Law: The Decalogues and the Book of the Covenant (1992) by Calum M. Carmichael.

Scholars have long assumed that the many legal precepts set out in the Pentateuch originated as genuine legislation. By studying these laws we have believed we are gaining insight into the daily lives, the customs and practices, of ancient societies.

It has all been assumption. There has been no independent evidence to corroborate this view. The laws look real, they sound real, so we assume they are real.

But notice:

The groundbreaking work of Benno Landsberger, F. R. Krauss, and J. J. Finkelstein has brought to the fore the hypothetical, ideal character of those laws found in the Near Eastern codes in contrast to the day-to-day laws discovered in legal contracts and the like. The contents of the codes suggest an academic school setting. They constitute a “literarisch-schematische-Konstruction,” an example of Babylonian academic literature couched in phraseology typical of hypothetical scribal compositions. . . . .

The construction of laws on the part of jurists as more an intellectual exercise than a wrestling with practical facts is often underestimated in legal systems. . . . .

The pursuit of hypothetical legal problems by a learned elite in Babylonia is paralleled in Babylonian mathematical circles. The problem texts in general “sometimes exhibit only very remote connections, if any, with practical questions. (Origins of Biblical Law, p. 17, my bolding in all quotes)

Carmichael refers us also to G. R. Drive and J. C. Miles, The Babylonian Laws, Vol. 1, and to A. Van Selms, “The Goring Ox in Babylonian and Biblical Law”, an article in Archiv Orientální, and writes:

The view that the explanation has to do with the more advanced social, economic, and political conditions in Mesopotamia, in contrast to those in biblical Israel, is based on the erroneous assumption that the compilations in question are intended for everyday life. Meir Malul rightly points out that a code such as Hammurabi’s, copies of which were made down through the centuries into the first millennium, represents a literary tradition, not one that had practical legal application. . . (p. 18)

That’s a survey of what specialists have begun to learn about the supposed legal codes in other civilizations neighbouring ancient Palestine. Carmichael further suggests Raymond Westbrook’s perceptions in his work, Cuneiform Law, are relevant to biblical laws:

He characterizes the cuneiform codes as follows: 

The basic building blocks were ‘schools problems’ — a case that may have begun life as a cause célèbre but then became the object of a theoretical discussion in which all manner of hypothetical variations to the actual circumstances were considered so as to build up a series of precedents grouped around a single theme. These problems were not rediscovered by each legal system but form a canon that was handed on from one system to another through scientific tradition.

Westbook presses into service all of the cuneiform and biblical codes available to us and assumes that each can be made to illuminate the other because they all are part of a “scientific” tradition. . . [H]e may well be right in assuming a common academic stock of legal problems that exercised the learned minds of the different cultures in question. (p. 19)

Carmichael argues that the comparative literary evidence  strongly indicates that the laws we read in the Pentateuch are literary fictions. They were created by scribes at the same time as the mythical past of Israel was likewise being created (not unlike the way German and Scottish romantic fictions were created as mythical national pasts in the eighteenth and nineteenth centuries). The laws were woven into the narratives of that mythical past and made to sound very ancient. They were attributed to their mythical founder Moses. Where did they come from? As indicated above, they were drawn from what was very probably a venerable and widespread literary tradition; the specific precepts themselves and the order in which they appeared were adapted from the narrative history of Israel.

I am not suggesting Carmichael’s views have become the dominant hypothesis among scholars of ancient Israel. I do believe his method is sound, certainly more sound than the traditional assumption that the law codes reflect historical reality. (To establish that latter point would require a separate post or three.)

Carmichael is working with the evidence we do have at hand. He does not work from assumptions that cannot be tested or verified.

There’s one particular point Carmichael brings out in his same Introduction that immediately struck me for its potential relevance to the Gospels. He notices that the narratives comprising the history of Israel are repetitious. The same types of scenes are acted out over and over. The most obvious instance is the trouble confronting first Abraham, then Isaac, over kings wanting to have their beautiful wives and our heroes saving their own skins by saying there were only their sisters. There are the repeated problems of late child-bearing. We can think of many more. We are reading literary adaptations and variations.

That’s exactly what we read in the Gospels, too. We are reading variations on the OT stories. Israel and Moses and Elijah go into the wilderness 40 years or days; so does Jesus, the representative of Israel . . . . and so on it goes. The Gospels are an extension of the literary compositions and variations of the Jewish Scriptures. Compare Thomas L. Thompson’s The Messiah Myth.

I’ve introduced a raft of potential new posts to stem from this one.


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Neil Godfrey

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