How Exodus Revises the Laws of Hammurabi

A close look at the laws of assault recorded in Exodus’ Covenant Collection demonstrates that the author knew the Laws of Hammurabi and revised them to fit with Israelite legal and ethical conceptions.

Prof.

David P. Wright

Following the revelation of the Decalogue (20:1–14), Moses alone approaches YHWH on the mountain and receives a collection of laws (20:19–23:19),[1] which scholars refer to as the Covenant Code or Covenant Collection (henceforth CC). Afterward, Moses presents these laws to the people in a covenant ceremony in which they agree to observe its precepts (Exod 24:3–8).

In 1901, archaeologists working in Susa[2] uncovered a 7.5-foot basalt stone stela, upon which the sixth king of Old Babylon, Hammurabi (1792–1750 B.C.E.), had a set of laws carved. The Laws of Hammurabi (henceforth LH) were translated into French by Jean-Vincent Scheil (1858–1940) and published the following year. The similarities between many of these laws to CC in substance and style was so striking that scholars ever since have speculated about the relationship between the two.[3]

Most contemporary scholars have concluded that LH and CC are only indirectly and distantly related. The texts either arose independently out of common parent legal traditions, or Mesopotamian legal traditions became part of scribal and legal traditions in Syria-Canaan and were eventually inherited by biblical scribes.[4]

Nevertheless, CC’s correlations with LH are sufficiently numerous to suggest that the relationship is direct.[5] Moreover, recent scholarship on inner-biblical exegesis and hermeneutical innovation in source-dependent texts[6] shows that even the notable differences between CC and LH may arise out of intentional transformation.[7] When compelling explanations can be provided that differences have come about through such a process, certain differences may actually become evidence for dependence.[8]

The assault laws of Exodus 21:12–14, 18–32, especially the laws about miscarriage, talion (i.e., “an eye for an eye, a tooth for a tooth”) offer a strong demonstration of how intricately CC is dependent upon LH, even while adjusting its content and style.[9]

Aggravated Miscarriage and the Problem of Vicarious Punishment

The Laws of Hammurabi present two cases in which a man strikes a pregnant woman (209–210):

209 If a man strikes a daughter of a man (mārat awīlim) and he causes her to miscarry her fetus, he shall weigh out ten shekels of silver for her fetus.

210 If that woman dies, they shall kill his daughter.

According to this, if the pregnant woman survives the blow, the penalty is purely financial. If she does not, the assailant is punished vicariously, namely his daughter is killed. The CC has the same two cases, but it then moves in a different direction:

Miscarriage law 1 (fine for killing the fetus)

שמות כא:כב וְכִי יִנָּצוּ אֲנָשִׁים וְנָגְפוּ אִשָּׁה הָרָה וְיָצְאוּ יְלָדֶיהָ וְלֹא יִהְיֶה אָסוֹן עָנוֹשׁ יֵעָנֵשׁ כַּאֲשֶׁר יָשִׁית עָלָיו בַּעַל הָאִשָּׁה וְנָתַן בִּפְלִלִים.

Exod 21:22 If men struggle and they knock a pregnant woman and her fetus comes out but (the woman) suffers no misfortune, he shall be fined as the husband of the woman exacts from him and he shall pay bpllm (for the fetus?).[10]

Miscarriage law 2 (bridge to talion)

כא:כג וְאִם אָסוֹן יִהְיֶה וְנָתַתָּה נֶפֶשׁ תַּחַת נָפֶשׁ.

21:23 If (the woman) does suffer misfortune, you shall pay life for life.

Lex Talionis[11]

כא:כדעַיִן תַּחַת עַיִן
שֵׁן תַּחַת שֵׁן
יָד תַּחַת יָד
רֶגֶל תַּחַת רָגֶל.
כא:כה כְּוִיָּה תַּחַת כְּוִיָּה
פֶּצַע תַּחַת פָּצַע
חַבּוּרָה תַּחַת חַבּוּרָה.

21:24 Eye for eye,
tooth for tooth,
arm for arm,
leg for leg,
21:25 burn for burn,
injury for injury,
wound for wound.

CC’s laws deal with the same topics as LH in the same order. The first laws (A) treat miscarriage alone, and the second laws (B) add the death (or injury) of the mother. The chief difference is in the second laws. LH 210 has a penalty of vicarious punishment. Because the victim of the assault was the “daughter of a man,” the daughter of the assailant is to be put to death. CC lacks this punishment and sets down instead a punishment of “life for a life,” followed by the law of talion.

Talion: A Replacement Penalty in the Covenant Code

CC’s talion law reads in this comparative context as a replacement for Hammurabi’s penalty of vicarious punishment. That it is a replacement is partly indicated by the artificial attachment of CC’s talion law. It looks as if it has been imposed in its context, abruptly shifting the topic of legal conversation. It begins with a second person verb (“you shall give”), rather than a third person verb consistent with the context otherwise. Its list of talion dyads (“X for X”) also covers two and a half verses (vv. 23a–25).[12]

The goring ox law a few verses later provide support for this interpretation. This says that if a child is a victim of goring, the case is to be handled like the foregoing case, i.e., the case for an adult (Exod 21:31; see the appendix), explicitly rejecting vicarious punishment through the perpetrator’s child.

Further evidence that CC’s talion law is a replacement is the fact that LH itself has a set of talion laws just a few paragraphs before its miscarriage laws. CC’s talion law has substantial correspondences with these and looks as if it drew from them to craft its replacement penalty.

Hammurabi’s Talion Laws

LH’s talion laws deal with three cases, blinding an eye, breaking a bone, and knocking out a tooth (196–201). These cases are then subdivided depending on the social class of the victim:

196If an awīlum (a free man), blinds the eye of a member of the awīlum class, they shall blind his eye. 197If he breaks the bone of an awīlum, they shall break his bone.

198If he blinds the eye of a muškēnum (one economically obligated to the palace)[13]or breaks the bone of a muškēnum, he shall weigh out one mina (sixty shekels) of silver.

199If he blinds the eye of an awīlum’s slave (wardum; a slave held as property) or breaks the bone of an awīlum’s slave, he shall weigh out half of his value.

200If an awīlum knocks out the tooth of an awīlum of the same rank, they shall knock out his tooth.

201If he knocks out the tooth of a muškēnum, he shall weigh out one third mina (twenty shekels) of silver.

LH’s talion laws differ in several ways from those of CC.

• Long-form/short-form—LH’s laws are fully formulated, with clauses setting up the cases followed by clauses prescribing the penalties, whereas CC’s are merely schematic dyads “eye for eye, tooth for tooth, etc.”

• Social classes—LH has three social categories: awīlum, muškēnum, and wardum, a free person, a person economically obligated to the palace (later a poor person), and a chattel slave. By contrast, CC has two classes in the larger context: free persons in the main law of Exod 21:22–25 and slaves in the following verses dealing with talion as related to slaves (vv. 26–27).

• Number of cases—LH deals with only three bodily parts or injuries (eye, bone tooth), whereas CC has eight (life, eye, tooth, arm, leg, burn, injury, wound).

Nevertheless, the similarities are striking and the differences do not necessarily mean that CC was composed independently of LH. First, some of these differences can be explained exegetically. For instance, while CC’s eye and tooth in verse 24 reflect the same body parts in LH 196 and 200, CC’s arm and leg are interpretations of LH, bifurcating and disambiguating the “bone” in LH 197.[14] (For the burn, injury, wound in CC, see below.) The lack of a three-tiered social class division can be explained by adaptation to the simpler sociological situation conceived of for the earliest history of Israel. Finally, the change from long form to dyad form stems from adapting the talion concept to work syntactically as the new penalty in the second miscarriage law.

Intentional versus Unintentional Assault

Hammurabi’s and CC’s miscarriage and talion laws differ in another way that offers us a further clue as to how the authors of CC worked. The LH miscarriage and talion laws all assume that the assault was intentional. The assaults are direct, without mitigating circumstances, and the penalties are severe. In CC’s law, in contrast, men fight each other and happen to strike the pregnant woman, and this leads to the talion. This characterizes the assault as unintentional.

Here too CC has been influenced by LH, specifically by the LH laws that deal with inadvertent injury and homicide (LH 206–208), which appear between the talion (LH 196–201) and the miscarriage laws (LH 209–210):

206If a man strikes another man in a fight and injures him (lit., puts a wound, simmum, on him), that man shall swear (saying), “I did not strike him with intent,” and he shall pay the physician.

207If he dies from his being struck, he shall also swear. If (the victim) is an awīlum, he shall weigh out one-half mina (= thirty shekels) of silver.

208If a muškēnum, he (the assailant who is an awīlum) shall weigh out one-third mina (= twenty shekels) of silver.

CC has a version of these laws. It appears separately but immediately preceding its miscarriage laws:

שמות כא:יח וְכִי יְרִיבֻן אֲנָשִׁים וְהִכָּה אִישׁ אֶת רֵעֵהוּ בְּאֶבֶן אוֹ בְאֶגְרֹף וְלֹא יָמוּת וְנָפַל לְמִשְׁכָּב. כא:יט אִם יָקוּם וְהִתְהַלֵּךְ בַּחוּץ עַל מִשְׁעַנְתּוֹ וְנִקָּה הַמַּכֶּה רַק שִׁבְתּוֹ יִתֵּן וְרַפֹּא יְרַפֵּא.

18When men fight and one strikes his fellow with a stone or with a fist (?), and he (the latter) does not die but takes to his bed—19if he gets up and walks about outside on his staff, then the striker is absolved, but he must recompense him for his period of inactivity and provide for his cure.[15]

Unlike LH, CC does not discuss in these verses what happens if the man dies as a result of the assault. This is due to CC’s larger systematic formulating of laws on homicide that appears a few verses earlier than this assault law, to which we now turn.

Laws of Homicide

CC’s main homicide legislation appears at the very beginning of CC’s assault laws:

שמות כא:יב מַכֵּה אִישׁ וָמֵת מוֹת יוּמָת. כא:יג וַאֲשֶׁר לֹא צָדָה וְהָאֱלֹהִים אִנָּה לְיָדוֹ וְשַׂמְתִּי לְךָ מָקוֹם אֲשֶׁר יָנוּס שָׁמָּה. כא:יד וְכִי יָזִד אִישׁ עַל רֵעֵהוּ לְהָרְגוֹ בְעָרְמָה מֵעִם מִזְבְּחִי תִּקָּחֶנּוּ לָמוּת.

Exod 21:12 He who strikes a man so that he dies shall be put to death, 21:13 and he who did not plan it, but God directed (the victim) to his hand, I will appoint a place for you to which he may flee. 21:14 But if a person plots against his fellow to kill him by deceit, you shall take him from my altar to be put to death.

This corresponds with LH 207, cited above, and shares its concern about unintentional homicide. The topic was removed from the context of Exod 21:18–19 and placed at the beginning of CC’s assault laws because of its seriousness.[16] Oddly, while CC’s homicide law prescribes a penalty for intentional homicide, no liability for inadvertent homicide is stated. It looks like the killer in the latter case is totally exonerated in contrast to the indemnification required by LH 206–208.

But CC’s talion law, beginning with the case of inadvertently killing the pregnant woman, actually fills this gap and sets out liability for inadvertent homicide and injury. As noted already it deals with unintentional assault whose results include homicide, incorportated in the “life for life,” which mirrors the measure-for-measure capital liability in Hammurabi’s miscarriage law (LH 210). It also is a general law that prescribes payment, i.e., compensation, according to the degree of injury suffered by the victim.

“וְנָתַתָּה”: What Does the Inadvertent Killer/Damager “Give”?

That the talion law requires payment, not literal infliction of death or injury, is indicated in part by the indirect and hence unintentional nature of the assault. Capital punishment or corporal punishment does not fit with the system of CC (e.g., 21:12–14, 18–21, 28–32).

More importantly, the verb נָתַן “give” which heads the talion list (“you shall give life for life…” v. 23b), is found in other contexts of CC to refer to payment (Exod 21:19, 30, 32) and even in the first miscarriage law (v. 22). Thus CC’s law prescribes payment for inadvertent homicide and injury like LH 206–208. The difference is that that CC’s talion allows for variable rather than fixed rates as in LH.[17]

The formulation of this verb and the length and scope of the talion list also indicate that CC’s talion law is a general law covering all cases of inadvertent homicide and injury. In standard case law formulation, verbs describing acts committed and resulting obligations are generally in the third person (“if he/they does/do X, he/they must do Y”). For example, CC’s first miscarriage law has such a style: “If men struggle and they knock a pregnant woman …, he shall be fined as the husband of the woman exacts from him” (Exod 21:22).

The penalty in the second miscarriage law uses, in contrast, an unusual second person verb: “you shall pay (וְנָתַתָּה,) life for life, eye for eye….”). This shift in style seems to point to a legal horizon beyond the immediate context of miscarriage by broadening the audience beyond the specific case of assault. In addition, the length of the talion list with its eight dyads, and the range of injuries listed, also point to application beyond the context of miscarriage.[18]

As such, CC’s talion law fills the gap left in its homicide law and prescribes compensation for inadvertent homicide. It thus follows the basic requirement of LH 206–208. Another smaller but significant point where these laws influence CC was in the mention of inflicting a wound (LH 206). Just as CC bifurcated Hammurabi’s bone in the talion laws of LH 198–199 into an “arm” and “leg” in v. 24, so it seems to have trifurcated Hammurabi’s “wound” in LH 206 into its “burn,” “injury,” and “wound” in verse 25.

The payment of compensation also explains the implicit mechanism for how an inadvertent killer leaves the altar. When this is paid or agreed to, the anger of the victim’s family is assuaged and the killer may return safely home. This negotiation with the family would be similar to the negotiations in the first miscarriage law (v. 22) or the goring ox (v. 30).

Reworking Hammurabi

Thus, CC’s miscarriage and talion list reworks three main sections from LH:

1. Two basic miscarriage laws, in vv. 22 and 23–25 from LH 209–210
2. Talion as a replacement penalty in the second law in vv. 23b–25 from LH 196–201
3. The context of a fight to characterize inadvertence from LH 206–208

The talion list in verses 23b–25 itself draws on these sections of LH:

4. Life in v. 23b from LH 210;
5. The eye, tooth, arm, leg in v. 24 from LH 196–201;
6. Burn, injury, and wound in v. 25 from LH 206.

These all derive from a rather delimited area of Hammurabi’s text—laws 196-210. The movement from miscarriage law to talion is an artificial yet highly creative construction that, as noted above, was primarily motivated by eliminating vicarious punishment from LH 210[19] and secondarily motivated by a desire to complement the homicide law of verses 12–14.

CC’s connections to LH are thus very intricate. They do not seem to result from common broad legal traditions or sources that are reflected independently in LH. Rather, the correlations between the laws of CC and LH and the hermeneutic process proposed in their creation indicate that CC’s homicide and assault laws derive quite directly from a knowledge of LH.

This provides a basis for arguing that other casuistic laws in CC (those formulated as “if such is the case, then such is to be done”; Exod 21:2–22:19) that have correspondences with LH also are reworking similar laws in LH.[20]

These, with their parallels in LH, include the laws on:

• Debt-slavery (Exod 21:2–11; LH 117, 148–149, 154–156, 282),
• Capital crimes (Exod 21:12–17; LH 14, 192–195, 207),
• Animal theft (Exod 21:35–22:3; LH 253–266),
• Animal grazing (Exod 22:4; LH 57–58),
• Stolen deposits (Exod 22:6–8; LH 122–126),
• Animal lost by a borrower (Exod 22:9–12; LH 266–267),
• Animal rental (Exod 22:13–14; LH 244–249, 268–271).[21]

Dating the CC

CC’s use of LH as a source fits best in the chronological window of 740–640 B.C.E., during the height of Neo-Assyrian political and cultural domination. Even though LH was promulgated much earlier, many copies of LH, which was used as part of the training of scribes, are attested in this period.[22] Moreover, we know that the CC must have been composed before the Deuteronomic law collection, generally dated to the second half of the seventh century B.C.E., which builds on it and responds to it.[23] This period corresponds to the final years of the northern kingdom of Israel (destroyed by Assyrian in 722 B.C.E.) and Assyria’s conquest of Judah (701 B.C.E.) and its incorporation into the empire as a vassal state.

Grappling with LH and Assyrian Ideology

This dating provides an indication of CC’s ideological goal. It appears to operate as a response to the politically dominant Assyrian power by adapting Mesopotamian cultural motifs as part of Israelite/Judean heritage. The degree that this response sought to acquiesce to imperial power by emulation or to subvert it is open to debate. But a strong hint that this is an expression of resistance is found in CC’s replacing the royal human lawgiver (Hammurabi) with the national deity (YHWH) and setting this revelation of law at the nation’s birth.[24]

Appendix

Rejection of Vicarious Punishment in Ox Goring Laws

That CC’s penalty in the second miscarriage law (vv. 23–25) is a rejection of the penalty in LH 210, discussed above, is supported by its goring ox laws, which also have close correlations with Hammurabi’s legislation, including covering the same topics in the same order:

	CC	LH
(A) Ad hoc goring—the owner suffers no penalty.	21:8If an ox gores a man or woman and he dies, the ox shall be stoned, its flesh shall not be eaten; the owner of the ox is not liable.	250 If an ox gores anawīlum while passing through the street and kills (him), that case has no claim.
(B) Goring by an ox known to gore—the owner is liable.	21:9 If an ox is a habitual gorer, from previous experience, and its owner has been warned, but he did not restrain it, and it kills a man or woman, the ox shall be stoned and its owner shall be put to death. 21:30 If ransom is laid upon him, he shall pay the redemption price for his life, according to whatever is laid upon him. 21:31Or (if) it gores a son or daughter, it shall be done for him according to this law.	251 If a man’s ox is ahabitual gorer, and his district has informed him that it is a habitual gorer, but he did not file its horns and did not control his ox, and that ox gores the son of anawīlim and kills (him), he shall pay one-half mina (= thirty shekels) of silver.
(C) Goring of a slave—monetary penalty	21:32If the ox gores a male slave or a female slave, he shall pay thirty shekels of silver to his (the slave’s) master and the ox shall be stoned.	252 If it is the slave of an awīlum, he shall pay one-third mina (= twenty shekels) of silver.

CC’s laws display some notable differences, whose rationale cannot be explored here, such as the requirement to stone the goring ox.[25] Here I will only explore how the two collections differ concerning vicarious punishment.

Child Victims as People

CC includes a verse on children as victims in verse 31, not found in LH. But there is still a subtle correlation. The victim of Hammurabi’s first goring ox law is an awīlum, “a (free) man” (LH 250), while the victim in its second is called a mār awīlim, “son of a (free) man.”

This term can have two meanings in Akkadian, literally, “a son of a (free) man” or broadly “one of the awīlum class,” i.e., “a (free) man” (LH 251). CC’s inclusion of children in verse 31 as part of its second law looks like a response to the ambiguity of Hammurabi’s terminology in its second law, especially against LH 250 where the victim is clearly an adult.

CC’s prescribes in its second law that even if the victim is a child (a literal mār awīlim), the case is to be prosecuted as if the victim were an adult. That is, in this case, the owner would be liable to the penalties of vv. 29–30, not his child. This rather explicit rejection of vicarious punishment supports the interpretation that the alternative penalty in vv. 23–25 in the miscarriage law is an calculated revision.[26]

View Footnotes

Published

February 27, 2019

|

Last Updated

February 25, 2020

1. Verse numbering in the article follows that of the NJPS.
2. Susa (Shushan) was not part of Babylon but an important city in ancient Elam (and eventually Persia), and rival of Babylon. The stela had been stolen by the Elamites in a raid against Babylon and never returned.
3. For translations of Hammurabi’s Laws, see Martha T. Roth, Law Collections from Mesopotamia and Asia Minor, 2nd ed., Writings from the Ancient World (Atlanta: Scholars Press, 1997), 76–140; M. E. J. Richardson, Hammurabi’s Laws (London: T&T Clark, 2000).
4. For arguments along this line, see J. J. Finkelstein, The Ox That Gored, Transactions of the American Philosophical Society 71/2 (Philadelphia: American Philosophical Society, 1981); Bernard S. Jackson, Wisdom-Laws: A Study of the Mishpatim of Exodus 21:1–22:16(Oxford: Oxford University Press, 2006); Eckart Otto, “Town and Rural Countryside in Ancient Israelite Law: Reception and Redaction in Cuneiform and Israelite Law,” JSOT 57 (1993): 3–22; repr. in The Pentateuch: A Sheffield Reader, ed. J. W. Rogerson (Sheffield: Sheffield Academic Press, 1996), 203–221; Ralf Rothenbusch, Die kasuistische Rechtssammlung im “Bundesbuch” (Ex 21,2–11.18–22,16), AOATS 259 (Münster: Ugarit-Verlag, 2000); Raymond Westbrook, “The Laws of Biblical Israel,” in The Hebrew Bible: New Insights and Scholarship, ed. Frederick Greenspahn, Jewish Studies in the Twenty-First Century (New York: New York University Press, 2008), 99–119. (See the review of scholarship in Wright, Inventing, 16–24, referenced in the next note.)
5. David P. Wright, Inventing God’s Law: How the Covenant Code of the Bible Used and Revised the Laws of Hammurabi (Oxford: Oxford University Press, 2009); Wright, “The Origin, Development, and Context of the Covenant Code (Exod 20:23–23:19),” in The Book of Exodus: Composition, Reception, and Interpretation, ed. Thomas Dozeman, Craig Evans, and Joel Lohr, VTSup 164 (Leiden: Brill, 2014), 220–244; see p. 224 [n6] for others who follow this view in one way or another; also see the review by Morrow in the next note.
6. In biblical literature broadly, see Michael Fishbane, Biblical Interpretation in Ancient Israel (Oxford: Oxford University Press, 1985). For biblical legal texts, see Bernard M. Levinson, Deuteronomy and the Hermeneutics of Legal Innovation (Oxford: Oxford University Press, 1998); Levinson, Legal Revision and Religious Renewal in Ancient Israel(Cambridge: Cambridge University Press, 2008), 95–181.
7. For a discussion of such differences, see Bruce Wells, “The Covenant Code and Near Eastern Legal Traditions: A Response to David P. Wright,” Maarav 13 (2006): 85–118.
8. Attention to hermeneutical creativity also provides an avenue for assessing and appreciating the significance and meaning of the innovative text.
9. See the review by William Morrow, “Legal Interactions: The Mišpāṭîm and the Laws of Hammurabi,” BO 70 (2013): 309–331. He concludes that the assault laws of Exod 21:18–32 do show dependence on LH and calls for more study of the means and context for this dependence.
10. For בִּפְלִלִים, perhaps read בנפלים “for the fetus.” This plural, as well as יְלָדֶיהָ “her children,” earlier in the verse, would be abstractions referring to the aborted fetus.
11. Some scholars argue that v. 25 is a later expansion.
12. The inconsistency in the conceptual and stylistic flow from the miscarriage laws proper to the talion law has led some scholars to speculate that this was the result of textual development done in redactional stages.
13. In the Old Babylonian period, the muškēnum was probably free but tied by economic obligations to the palace. Later it became a general term for the poor. See Wright, Inventing, 428 [n61]. This Akkadian word is the origin of the Late Biblical (Eccl. 4:13; 9:15-16) and Rabbinic Hebrew מִסְכֵּן, meaning “poor.”
14. The trio of soft-tissue injuries in v. 25, burn, injury, and wound, that complete CC’s talion list, can be explained similarly. Though they do not come from this part of LH, they derive from another group of laws, dealing with unintentional assault that we will look at momentarily, trifurcating LH’s “wound” (simmum) in LH 206.
15. Again, the law does not distinguish between two classes of non-slaves, but it is followed up by a separate law dealing with the striking of slaves:

שמות כא:כ וְכִי יַכֶּה אִישׁ אֶת עַבְדּוֹ אוֹ אֶת אֲמָתוֹ בַּשֵּׁבֶט וּמֵת תַּחַת יָדוֹ נָקֹם יִנָּקֵם. כא:כא אַךְ אִם יוֹם אוֹ יוֹמַיִם יַעֲמֹד לֹא יֻקַּם כִּי כַסְפּוֹ הוּא.

 

Exod 21:20 If a man strikes his male slave or female slave with a rod and he (or she) dies under his hand, he (the victim) is to be avenged, 21:21 but if he lingers for a day or two, he (the assailant) shall not suffer vengeance, since he is his (the master’s) silver (i.e., property).

CC is altering social gradations—from LH’s muškēnum to CC’s slave—consistent with its sociological perspectives and, in particular, to fit its interest in legislating about slaves generally (21:2–11, 20–21, 26–27, 32). A similar adaptation is found in CC’s law about knocking out a slave’s tooth in Exod 21:27, which correlates with LH 201 about knocking out a muškēnum’s tooth.
16. The three legal topics in LH 206–208 (injury of an awīlum, homicide of an awīlum, and homicide of muškēnum) have correlates in Exod 21:18–19, 12–14, 20–21 (injury of a free person, homicide of a free person, homicide of a slave). The homicide law in vv. 12–14 appears to have been extracted from this plotting of cases and placed at the beginning of CC’s assault law because of its gravity and paradigmatic nature. A telltale sign of dependence is that vv. 18–19 deal with injury of a free person and then vv. 20–21 deal with the death of a slave. One expects an intervening case of the death of a free person, to which the death of the slave serves as the socially graded case. On the deviant style of the homicide law, see Wright,Inventing, 154–204.
17. Note the variable rates in Exod 21:22 and 30 versus the fixed rates in the parallel laws of LH 210 and 251.
18. Again, CC follows up its law of unintentional injury of free men with that of slaves:

שמות כא:כו וְכִי יַכֶּה אִישׁ אֶת עֵין עַבְדּוֹ אוֹ אֶת עֵין אֲמָתוֹ וְשִׁחֲתָהּ לַחָפְשִׁי יְשַׁלְּחֶנּוּ תַּחַת עֵינוֹ. כא:כזוְאִם שֵׁן עַבְדּוֹ אוֹ שֵׁן אֲמָתוֹ יַפִּיל לַחָפְשִׁי יְשַׁלְּחֶנּוּ תַּחַת שִׁנּוֹ.

 

Exod 21:26 If a man strikes the eye of his male slave or the eye of his female slave and destroys it, he shall send him away free for his eye. 21:27 And if he knocks out the tooth of his male slave or the tooth of his female slave, he shall send him away free for his tooth.

These laws parallel Hammurabi’s talion-related laws on injuries to those of lower classes (LH 199, 201, cited above). In Near Eastern legislation, laws on those of a lower social class (e.g., commoners and/or slaves) often accompany laws on the same topic dealing with free persons. Hence vv. 26–27 presume a preceding law on similar injuries to free persons. CC’s talion law, when read as a general law referring to all cases of assault, provide this initial case. Thus, CC’s talion law (vv. 23b–25) is Janus-faced. It provides the penalty for the second miscarriage law (v. 23) and, at the same time, is a general law that sets up the slave injury law (vv. 26–27).
19. This artificial character makes sense of other inconsistencies in the context. The slave injury laws in vv. 26–27 are fully formulated, with clauses setting up the cases and clauses prescribing penalties, while the conceptually governing talion laws in vv. 23b–25 is just a list. That is a function of their being crafted to fit the context and syntax of the miscarriage law. In addition, the slave injury laws maintain motifs from the preceding talion law (mention of an eye and tooth, and the prepositional phrase “for his eye/tooth”), even as they have nothing to do with miscarriage. That is a function of the talion law operating as a general law for all cases of homicide and injury, not just miscarriage.
20. This in turn provides a foundation for arguing that the apodictic laws (those formulated as commands, “do X” or “don’t do Y”), which precede and follow the casuistic laws (i.e., 20:19–23 and 22:20–23:19), also have a motivation in LH. These along with CC’s casuistic laws match the A-B-A pattern of Hammurabi’s prologue-casuistic laws-epilogue. CC’s apodictic laws also share the thematic pattern and injunctive style of the first half of Hammurabi’s epilogue. Moreover, the appendix to CC (Exod 23:20–33), which is part of the revelation of CC in its context, has correspondences with Mesopotamian royal inscriptions and fits like a puzzle piece in the thematic correlations with the epilogue of LH. See David P. Wright, “The Covenant Code Appendix (Exod 23:20–33), Neo-Assyrian Sources, and Implications for Pentateuchal Study,” in The Formation of the Pentateuch: Bridging the Academic Cultures of Europe, Israel, and North America, ed. Jan Gertz, Bernard Levinson, Dalit Rom-Shiloni, and Konrad Schmid, FAT 111 (Tübingen: Mohr Siebeck, 2016), 47–85.
21. On this methodological point see David P. Wright, “Method in the Study of Textual Source Dependence: The Covenant Code,” in Subtle Citation, Allusion, and Translation in the Hebrew Bible, ed. Ziony Zevit (London: Equinox Publishing, 2017), 159–181.
22. The correlations of CC’s appendix are mainly with Neo-Assyrian royal inscriptions.
23. See discussion in Levinson, Deuteronomy and the Hermeneutics of Legal Innovation.
24. For the problem of all too simplistic assessments about emulation and subversion in regard to Neo-Assyrian ideas, see Jessie DeGrado, “Authoring Empire: Intellectual Engagement with the Neo-Assyrian Empire in the Bible” (PhD diss., University of Chicago Divinity School, 2018).
25. This may arise from ideological considerations about the value of human life, from native practice, or from systematic contrast with the law on an ox goring an ox in Exod 21:35–36, where the lethal animal is not put to death. See Moshe Greenberg, “Postulates of Biblical Criminal Law,” in Yehezkel Kaufman Jubilee Volume, ed. Menahem Haran (Jerusalem: Magnes, 1960), 5–28. See the discussion in Wright, Inventing, 222–227.
26. LH 116 prescribes vicarious punishment in the case where a creditor beats and kills the son of a debtor who is laboring as a debt slave. LH 115–116 appear to be an influence on Exod 21:20–21 (these verses are cited in another context later in this article). But the penalty for killing a slave in CC’s law is “vengeance” (using the root נקם). This may be a further implicit rejection of vicarious punishment. See Wright, Inventing, 169–176. LH 230 also prescribes vicarious punishment, for the son of a house owner killed by the collapse of a shoddily built house. CC does not have a corresponding law.

Moses’ Commandments: The Secret of R. Nissim of Marseilles

In the 14th century, R. Nissim of Marseilles suggested that God told Moses only the general command for the Mishkan and the laws in the Torah, and Moses himself wrote the details and attributed them to God as a way of glorifying God. A close look at many passages in Deuteronomy suggests that this was an early conception of Moses’ role in commanding the mitzvot.

Dr. Rabbi

David Frankel

God’s Part in Writing the Torah

Introduction: R. Nissim ben Moshe of Marseilles

R.Nissim ben Moshe of Marseilles, a Jewish philosopher from fourteenth century Provence, wrote Ma’asseh Nissim. Recently published and annotated by Howard Kreisel of Ben Gurion University, this work is a philosophical treatise on theological matters and a commentary on the Torah within the Maimonidean tradition.

R. Nissim was unconventional. Whereas Maimonides was often circumspect and ambiguous in his formulations, R. Nissim was more explicit and radical. He denied God’s personal intrusion into the course of events and provided a naturalistic interpretation of creation and biblical miracles. He also had a particularly novel understanding of God’s role in the writing of the Torah, which he explains as part of his interpretation of the Tabernacle account.

Vayikra Rabbah: Moses Writes God’s Name on the Mishkan

‍R. Nissim’s remarks are based on a passage in Leviticus Rabbah to the opening verse of Leviticus, which expounds, “And He [God] called to Moses (וַיִּקְרָא אֶל מֹשֶׁה),” with the following analogy:

מה כת’ למעלה מן העיניין, בפרשת משכן, כאשר צוה י”י את משה

It is written above in the section on the Tabernacle: “As the Lord commanded Moses.”

למה הדבר דומה, למלך שהיה מצוה את עבדו ואמ’ לו בנה לי פלטין. על כל דבר ודבר שהיה בונה היה כותב עליו שמו שלמלך… בכתלים… בעמודים… בקורות… לימים נכנס המלך לתוך פלטין, על כל דבר ודבר שהיה מביט היה מוצא את שמו כתוב עליו. אמ’ כל הכבוד הזה עשה לי עבדי ואני מבפנים והוא מבחוץ, קראו לו שיכנס לפנים.

This is analogous to a king who commanded his servant: “Build me a palace.” On each item the servant built, he would write the name of the king… on the walls… on the pillars… on the ceilings…. When the king finally entered the palace, and everywhere he looked he found his name written, he said, “My servant paid me the highest honor, and I am inside while he is outside?!” [The king] called him to invite him inside.

כך בשעה שאמ’ לו הקדוש ברוך הוא למשה עשה לי משכן על דבר ודבר שהיה עושה היה כותב עליו כאשר צוה י”י את משה. אמ’ הקדוש ברוך הוא כל הכבוד הזה עשה לי משה ואני מבפנים והוא מבחוץ, קראו לו שיכנס לפנים. לכך נאמ’ ויקרא אל משה.

Similarly, when the Lord said to Moses: Build me a tabernacle — on each item that he built he (Moses) would write: As the Lord had commanded Moses. God said: Moses paid me the highest honor and here I am inside and he is on the outside? Call him to enter before Me inside.” For this reason it is said: And He called to Moses (Leviticus Rabbah 1:7, Margolit ed.).

This midrash explains why God glorified Moses in Leviticus 1:1, calling him from within the Mishkan, immediately after it was set up. Moses’ merit was not the he constructed the Mishkan precisely as God prescribed, but that he inscribed the different parts of the Mishkan with the phrase “as the Lord commanded Moses” as a reminder that every part of it was made for the glory of God alone. Since Moses did this extra, unexpected and unsolicited act of glorifying God, God responds in kind and glorifies Moses by calling him from the Mishkan immediately after it was erected.

R. Nissim’s Interpretation of the Midrash:
Moses Attributed the Details to God

R. Nissim sees the Mishkan here as an exemplar of mitzvot in general, and finds within the midrash a radical conception (Maaseh Nissim, Kreisel ed., 177-178):

העירו בזה ז”ל לסוד גדול <נמשך למה שרמזנו אליו> בזה הפרק. וזה כי הצואה בכלל היתה מהשם יתברך לשכל משה. והשמיע לו הדברים דרך כלל – לכל מוסרי התורה וצוויה ואזהרותיה – לחלק השכלי, ליסד החלק הגופני ולהנהיגו, ושיכוון אל הנאות והמועיל תמיד, וירחיק המזיק לגוף ולנפש. ומשה היה כותב על כל פרט ופרט: “כאשר צוה יי את משה” לכבוד השם, ולהגדיל הדברים בעיני ישראל, למען תהיה יראת השם על פניהם לבלתי יחטאו.

The Sages alluded to a great secret that is related to what we hinted in this chapter – namely,
that the command in general was to the intellect of Moses. God communicated the matters in general – namely, all the commands of the Torah – to the rational faculty in order to govern the corporeal part, directing it always to the salutary, and to abolish what is harmful to the body and to the soul. And Moses would write next to each detail: As the Lord commanded Moses in order to honor God, to increase the significance of these matters in the eyes of the Israelites in order that they fear God and refrain from sin.[1]

R. Nissim suggests that God merely stated “Build Me a tabernacle,” the way a king would commission someone to build a palace, without getting involved in the details. God thus trusted Moses to determine all the details of the Mishkan, which he in fact did. Moses’ great merit, however, consisted in modestly attributing all these details to God.

The Mishkan as an Exemplar of Moses’ Role in Torah Legislation

‍More strikingly, R. Nissim understands the Mishkan here as representing “all the commands of the Torah.” In other words, God commissioned Moses, in a general sense, to write for Him a Torah for Israel (=build Me a Tabernacle) and it was Moses’ special merit that he presented all the laws of that Torah as if they were individually commanded by God himself rather than written by himself.

R. Nissim explains that Moses did this not only in order to glorify God, but also “to increase the significance of these matters in the eyes of the Israelites in order that they fear God and refrain from sin.” In other words, Moses performed what may be called a “pious fraud.” If the people would have known that the laws of Kashrut or Yom Kippur, for example, were actually devised by Moses’ own divinely grounded rational faculty, they would have been much less scrupulous in their observance, and this would have ultimately resulted in less God-fearing. The Midrash even teaches us, according to R. Nissim, that God was greatly pleased with Moses’ decision to attribute the details of the mitzvot of the Torah to God.[2]

Although this is a novel medieval perspective, in places the book of Deuteronomy imagines exactly the same model.

Part 2

Who Instructed the Laws: God, Moses, or Some Combination?

Stage 1 – Moses Legislates the Law

In contrast to Exodus-Numbers, several passages in Deuteronomy depict Moses giving the law to Israel absent any indication that this law comes from God. Some verses even explicitly state that Moses legislates the law.

This is the Torah of Moses (Deut. 4:44—45 )

דברים ד:מדוְזֹ֖את הַתּוֹרָ֑ה אֲשֶׁר שָׂ֣ם מֹשֶׁ֔הלִפְנֵ֖י בְּנֵ֥י יִשְׂרָאֵֽל: ד:מהאֵ֚לֶּה הָֽעֵדֹ֔ת וְהַֽחֻקִּ֖ים וְהַמִּשְׁפָּטִ֑ים אֲשֶׁ֨ר דִּבֶּ֤ר מֹשֶׁה֙ אֶל בְּנֵ֣י יִשְׂרָאֵ֔ל בְּצֵאתָ֖ם מִמִּצְרָֽיִם:

Deut 4:44 This is the Teaching that Moses set before the Israelites: 4:45 these are the decrees, laws, and rules that Moses addressed to the people of Israel, after they had left Egypt.

These verses do not call the teaching God’s Torah / law. Today when we cite verse 44 in the synagogue when the Torah is raised after reading from it, we append the words על פי ה’ ביד משה “by the mouth of the Lord by the hand of Moses” (cf. Numbers 9:23 and elsewhere), even though these words come from a different context. The fact that nothing like “by the mouth of the Lord by the hand of Moses” appears in the actual verse in Deuteronomy is telling.

Moses’ Commandments (Deut. 11:13)

דברים יא:יגוְהָיָ֗ה אִם שָׁמֹ֤עַ תִּשְׁמְעוּ֙ אֶל מִצְוֹתַ֔י אֲשֶׁ֧ר אָנֹכִ֛י מְצַוֶּ֥ה אֶתְכֶ֖ם הַיּ֑וֹם לְאַהֲבָ֞ה אֶת יְ-הֹוָ֤ה אֱלֹֽהֵיכֶם֙ וּלְעָבְד֔וֹ בְּכָל לְבַבְכֶ֖ם וּבְכָל נַפְשְׁכֶֽם:

Deut 11:13 If, then, you obey the commandments that I enjoin upon you this day, loving YHWH your God and serving Him with all your heart and soul,

This famous passage from the second paragraph of the Shema, located in the midst of Moses’ recapping of events that happened to Israel in the wilderness, refers to Moses enjoining the Israelites to keep his commandments. Moses seems to be the speaking in this verse, since it speaks of loving “the Lord your God” rather than “Me.”[3]

Verse 18, “You shall therefore impress these words of mine on your heart and on your soul (וְשַׂמְתֶּם֙ אֶת־דְּבָרַ֣י אֵ֔לֶּה עַל־לְבַבְכֶ֖ם וְעַֽל־נַפְשְׁכֶ֑ם)” indicates that Moses’ words (not God’s words) are to be inscribed on the doorposts (verse 20).

The Laws I (Moses) Have Set Before You (Deut. 11:32-12:1)

דברים יא:לבוּשְׁמַרְתֶּ֣ם לַעֲשׂ֔וֹת אֵ֥ת כָּל הַֽחֻקִּ֖ים וְאֶת הַמִּשְׁפָּטִ֑ים אֲשֶׁ֧ר אָנֹכִ֛י נֹתֵ֥ן לִפְנֵיכֶ֖ם הַיּֽוֹם:יב:אאֵ֠לֶּה הַֽחֻקִּ֣ים וְהַמִּשְׁפָּטִים֘ אֲשֶׁ֣ר תִּשְׁמְר֣וּן לַעֲשׂוֹת֒ בָּאָ֕רֶץ אֲשֶׁר֩ נָתַ֨ן יְ-הֹוָ֜ה אֱלֹהֵ֧י אֲבֹתֶ֛יךָ לְךָ֖ לְרִשְׁתָּ֑הּ כָּל הַיָּמִ֔ים אֲשֶׁר אַתֶּ֥ם חַיִּ֖ים עַל הָאֲדָמָֽה:

Deut 11:32 Take care to observe all the laws and rules that I have set before you this day. 12:1 These are the laws and rules that you must carefully observe in the land that YHWH, God of your fathers, is giving you to possess, as long as you live on earth.

This passage, very significantly, refers to God as the giver of the land and Moses as the giver of the law, a distinction that hardly seems arbitrary. [4] This distinction between “my laws” and “God’s gift of the land” appears frequently in Deuteronomy.[5]

The Laws which I (Moses) Charge You This Day (Deut. 27:1-8)

דברים כז:אוַיְצַ֤ו מֹשֶׁה֙ וְזִקְנֵ֣י יִשְׂרָאֵ֔ל אֶת הָעָ֖ם לֵאמֹ֑ר שָׁמֹר֙ אֶת כָּל הַמִּצְוָ֔ה אֲשֶׁ֧ר אָנֹכִ֛י מְצַוֶּ֥ה אֶתְכֶ֖ם הַיּֽוֹם: כז:בוְהָיָ֗ה בַּיּוֹם֘ אֲשֶׁ֣ר תַּעַבְר֣וּ אֶת הַיַּרְדֵּן֒ אֶל הָאָ֕רֶץ אֲשֶׁר יְ-הֹוָ֥ה אֱלֹהֶ֖יךָ נֹתֵ֣ן לָ֑ךְ וַהֲקֵמֹתָ֤ לְךָ֙ אֲבָנִ֣ים גְּדֹל֔וֹת וְשַׂדְתָּ֥ אֹתָ֖ם בַּשִּֽׂיד: כז:גוְכָתַבְתָּ֣ עֲלֵיהֶ֗ן אֶֽת כָּל דִּבְרֵ֛י הַתּוֹרָ֥ה הַזֹּ֖את בְּעָבְרֶ֑ךָ… כז:דוְהָיָה֘ בְּעָבְרְכֶ֣ם אֶת הַיַּרְדֵּן֒ תָּקִ֜ימוּ אֶת הָאֲבָנִ֣ים הָאֵ֗לֶּהאֲשֶׁ֨ר אָנֹכִ֜י מְצַוֶּ֥ה אֶתְכֶ֛ם הַיּ֖וֹם בְּהַ֣ר עֵיבָ֑ל…כז:ה…וּבָנִ֤יתָ שָּׁם֙ מִזְבֵּ֔חַ לַי-הֹוָ֖ה אֱלֹהֶ֑יךָ

Deut 27:1 Moses and the elders of Israel charged the people, saying: Observe all the Instruction that I enjoin upon you this day. 27:2 As soon as you have crossed the Jordan into the land that Yhwh your God is giving you, you shall set up large stones. Coat them with plaster 27:3 and inscribe upon them all the words of this Teaching… 27:4 upon crossing the Jordan, you shall set up these stones, about which I charge you this day, on Mount Ebal… 27:5 There, too, you shall build an altar to Yhwh your God…

The command to build an altar, to set up large stones and to write the law on them, is presented throughout this text as Moses’ command; once again, it contrast with the land which is given to Israel by YHWH. Nowhere does this text suggest that Moses is following divine orders., “[A]ll the Instruction that I enjoin upon you this day” (v.1) and the “words of this teaching” (v.3) that were to be written on the stones, were the words of Moses.

This accords perfectly with the fulfillment of Moses command in Joshua 8:30-35:

יהושע ח:לאָ֣ז יִבְנֶ֤ה יְהוֹשֻׁ֙עַ֙ מִזְבֵּ֔חַ לַֽי-הֹוָ֖ה אֱלֹהֵ֣י יִשְׂרָאֵ֑ל בְּהַ֖ר עֵיבָֽל: ח: לא כַּאֲשֶׁ֣ר צִוָּה֩ מֹשֶׁ֨ה עֶֽבֶד־יְ-הֹוָ֜ה אֶת בְּנֵ֣י יִשְׂרָאֵ֗לכַּכָּתוּב֙ בְּסֵ֙פֶר֙ תּוֹרַ֣ת מֹשֶׁ֔ה מִזְבַּח֙ אֲבָנִ֣ים שְׁלֵמ֔וֹת אֲשֶׁ֛ר לֹֽא הֵנִ֥יף עֲלֵיהֶ֖ן בַּרְזֶ֑ל וַיַּעֲל֨וּ עָלָ֤יו עֹלוֹת֙ לַֽי-הֹוָ֔ה וַֽיִּזְבְּח֖וּ שְׁלָמִֽים: ח:לבוַיִּכְתָּב שָׁ֖ם עַל הָאֲבָנִ֑יםאֵ֗ת מִשְׁנֵה֙ תּוֹרַ֣ת מֹשֶׁ֔ה אֲשֶׁ֣ר כָּתַ֔ב לִפְנֵ֖י בְּנֵ֥י יִשְׂרָאֵֽל… ח:לדוְאַֽחֲרֵי כֵ֗ן קָרָא֙ אֶת כָּל דִּבְרֵ֣י הַתּוֹרָ֔ה הַבְּרָכָ֖ה וְהַקְּלָלָ֑ה כְּכָל הַכָּת֖וּב בְּסֵ֥פֶר הַתּוֹרָֽה: ח:להלֹֽא הָיָ֣ה דָבָ֔רמִכֹּ֖ל אֲשֶׁר צִוָּ֣ה מֹשֶׁ֑ה אֲשֶׁ֨ר לֹֽא קָרָ֜א יְהוֹשֻׁ֗עַ נֶ֣גֶד כָּל קְהַ֤ל יִשְׂרָאֵל֙ וְהַנָּשִׁ֣ים וְהַטַּ֔ף וְהַגֵּ֖ר הַהֹלֵ֥ךְ בְּקִרְבָּֽם:

Josh 8:30 At that time Joshua built an altar to Yhwh, the God of Israel, on Mount Ebal, 8:31 as Moses, the servant of Yhwh, had commanded the Israelites—as is written in the Book of the Teaching of Moses—an altar of unhewn stone upon which no iron had been wielded. They offered on it burnt offerings to Yhwh, and brought sacrifices of well-being. 8:32 And there, on the stones, he inscribed a copy of the Teaching that Moses had written for the Israelites… 8:34 After that, he read all the words of the Teaching, the blessing and the curse, just as is written in the Book of the Teaching. 8:35 There was not a word of all that Moses had commanded that Joshua failed to read in the presence of the entire assembly of Israel…

This text presents the “Teaching/Torah”[6] as Moses’ teaching that includes his laws which he commanded. No mention of God’s involvement appears in this passage.

God Enjoins: Observe the Torah that Moses Commanded (Joshua 1:7-8)

יהושע א:זרַק֩ חֲזַ֨ק וֶֽאֱמַ֜ץ מְאֹ֗ד לִשְׁמֹ֤ר לַעֲשׂוֹת֙ כְּכָל הַתּוֹרָ֗ה אֲשֶׁ֤ר צִוְּךָ֙ מֹשֶׁ֣ה עַבְדִּ֔י אַל תָּס֥וּר מִמֶּ֖נּוּ יָמִ֣ין וּשְׂמֹ֑אול לְמַ֣עַן תַּשְׂכִּ֔יל בְּכֹ֖ל אֲשֶׁ֥ר תֵּלֵֽךְ: א:חלֹֽא יָמ֡וּשׁ סֵפֶר֩ הַתּוֹרָ֨ה הַזֶּ֜ה מִפִּ֗יךָ וְהָגִ֤יתָ בּוֹ֙ יוֹמָ֣ם וָלַ֔יְלָה לְמַ֙עַן֙ תִּשְׁמֹ֣ר לַעֲשׂ֔וֹת כְּכָל הַכָּת֖וּב בּ֑וֹ כִּי אָ֛ז תַּצְלִ֥יחַ אֶת דְּרָכֶ֖ךָ וְאָ֥ז תַּשְׂכִּֽיל:

Josh 1:7 But you must be very strong and resolute to observe faithfully all the Teaching that My servant Moses enjoined upon you. Do not deviate from it to the right or to the left, that you may be successful wherever you go. 1:8 Let not this Book of the Teaching cease from your lips, but recite it day and night, so that you may observe faithfully all that is written in it. Only then will you prosper in your undertakings and only then will you be successful.

God charges Joshua to follow the Teaching that Moses commanded him! He is to carry out all that is written in the book of the law and meditate on it day and night. Nowhere does God imply that the laws of this book are His own commands! Thus, the famous passage of והגית בו יומם ולילה refers to the Torah of Moses; only in the late Psalm 1:2 is it transformed to:

תהלים א:בכִּ֤י אִ֥ם בְּתוֹרַ֥ת יְ-הֹוָ֗ה חֶ֫פְצ֥וֹ וּֽבְתוֹרָת֥וֹ יֶהְגֶּ֗ה יוֹמָ֥ם וָלָֽיְלָה:

Psalm 1:2 rather, the teaching of Yhwh is his delight, and he studies that teaching day and night.[7]

Why I (Moses) Command You

‍In a number of passages in Deuteronomy, Moses refers to himself as the legislator, namely the one who “commands” a law:

• Charity (Deut 15:11)

דברים טו:יאכִּ֛י לֹא יֶחְדַּ֥ל אֶבְי֖וֹן מִקֶּ֣רֶב הָאָ֑רֶץ עַל כֵּ֞ן אָנֹכִ֤י מְצַוְּךָ֙ לֵאמֹ֔ר פָּ֠תֹחַ תִּפְתַּ֨ח אֶת יָדְךָ֜ לְאָחִ֧יךָ לַעֲנִיֶּ֛ךָ וּלְאֶבְיֹנְךָ֖ בְּאַרְצֶֽךָ:

Deut 15:11 For there will never cease to be needy ones in your land, which is why I command you: open your hand to the poor and needy kinsman in your land.

• Hebrew Slave (Deut 15:15)

דברים טו:טווְזָכַרְתָּ֗ כִּ֣י עֶ֤בֶד הָיִ֙יתָ֙ בְּאֶ֣רֶץ מִצְרַ֔יִם וַֽיִּפְדְּךָ֖ יְ-הֹוָ֣ה אֱלֹהֶ֑יךָ עַל־כֵּ֞ן אָנֹכִ֧י מְצַוְּךָ֛ אֶת־הַדָּבָ֥ר הַזֶּ֖ה הַיּֽוֹם:

Deut 15:15 Bear in mind that you were slaves in the land of Egypt and YHWH your God redeemed you; therefore I enjoin this commandment upon you today.

• Refuge Cities (Deut 19:7)

דברים יט:זעַל כֵּ֛ן אָנֹכִ֥י מְצַוְּךָ֖לֵאמֹ֑ר שָׁלֹ֥שׁ עָרִ֖ים תַּבְדִּ֥יל לָֽךְ:

Deut 19:7 That is why I command you: set aside three cities.

• Not to pawn a widow’s garments (Deut 24:18)

דברים כד:יחוְזָכַרְתָּ֗ כִּ֣י עֶ֤בֶד הָיִ֙יתָ֙ בְּמִצְרַ֔יִם וַֽיִּפְדְּךָ֛ יְ-הֹוָ֥ה אֱלֹהֶ֖יךָ מִשָּׁ֑ם עַל כֵּ֞ן אָנֹכִ֤י מְצַוְּךָ֙ לַעֲשׂ֔וֹת אֶת הַדָּבָ֖ר הַזֶּֽה:

Deut 24:18 Remember that you were a slave in Egypt and that Yhwh your God redeemed you from there; therefore do I enjoin you to observe this commandment.

• Leaving grapes for widows and orphans (Deut 24:22)

דברים כד:כבוְזָ֣כַרְתָּ֔ כִּי עֶ֥בֶד הָיִ֖יתָ בְּאֶ֣רֶץ מִצְרָ֑יִם עַל כֵּ֞ן אָנֹכִ֤י מְצַוְּךָ֙ לַעֲשׂ֔וֹת אֶת הַדָּבָ֖ר הַזֶּֽה:

Deut 24:22 Always remember that you were a slave in the land of Egypt; therefore do I enjoin you to observe this commandment.

In the laws concerning the Hebrew slave and the widow’s garment, Moses refers to Yhwh your God, in the third person, as the one who redeemed Israel—but uses the first person when explaining the origin of the command. This implies that Moses, who commands these laws, is also the authority behind them.

Stage 2 – Distinguishing Between Decalogue and Other Commands

When Deuteronomy explains the rationale behind the Sabbath law of the Decalogue, it puts the following words in Moses’ mouth:

דברים ה:טווְזָכַרְתָּ֗֞ כִּ֣י עֶ֥֤בֶד הָיִ֣֨יתָ בְּאֶ֣רֶץ מִצְרַ֗֔יִם וַיֹּצִ֨אֲךָ֬֜ יְ-הֹוָ֤ה אֱלֹהֶ֤֨יךָ֙ מִשָּׁ֔ם֙ בְּיָ֥֤ד חֲזָקָ֖ה֙ וּבִזְרֹ֣עַ נְטוּיָ֑ה עַל כֵּ֗ן צִוְּךָ֙ יְ-הֹוָ֣ה אֱלֹהֶ֔יךָ לַעֲשׂ֖וֹת אֶת י֥וֹם הַשַּׁבָּֽת:

Deut 5:15 Remember that you were a slave in the land of Egypt and Yhwh your God freed you from there with a mighty hand and an outstretched arm; therefore Yhwh your God has commanded you to observe the sabbath day.[8]

This implies that at least one layer of Deuteronomy thought that different laws have different origins: the Decalogue, representing the fundamentals of the covenant, were given by God, while the other laws related to the covenant, were given by Moses.

This idea was introduced when later scribes had a sense that the book of Deuteronomy could not stand on its own, and that it must be supplemented with the Decalogue, which D didn’t originally have.[9] Thus, the Decalogue and many other passages that assume it, were added into Deuteronomy at this stage. This addition allowed Moses’ Teaching/Torah to be based on God’s mandate to Moses to give “additional” laws, i.e., to expand on the Decalogue.

Deuteronomy 4 partakes in this same idea, which is analogous to the conception of R. Nissim discussed above.

The Horeb Covenant: A Decalogue by Design (Deut. 4)

‍Deuteronomy 4:9-14 divides between what God legislated and between what Moses legislated, but it explains the reason for the Mosaic legislation differently:

דברים ד:ט…וְהוֹדַעְתָּ֥ם לְבָנֶ֖יךָ וְלִבְנֵ֥י בָנֶֽיךָ: ד:יי֗וֹם אֲשֶׁ֨ר עָמַ֜דְתָּ לִפְנֵ֨י יְ-הֹוָ֣ה אֱלֹהֶיךָ֘ בְּחֹרֵב֒ בֶּאֱמֹ֨ר יְ-הֹוָ֜ה אֵלַ֗י הַקְהֶל־לִי֙ אֶת הָעָ֔ם וְאַשְׁמִעֵ֖ם אֶת דְּבָרָ֑י… ד:יאוַתִּקְרְב֥וּן וַתַּֽעַמְד֖וּן תַּ֣חַת הָהָ֑ר… ד:יבוַיְדַבֵּ֧ר יְ-הֹוָ֛ה אֲלֵיכֶ֖ם מִתּ֣וֹךְ הָאֵ֑שׁ ק֤וֹל דְּבָרִים֙ אַתֶּ֣ם שֹׁמְעִ֔ים… ד:יגוַיַּגֵּ֨ד לָכֶ֜ם אֶת בְּרִית֗וֹ אֲשֶׁ֨ר צִוָּ֤ה אֶתְכֶם֙ לַעֲשׂ֔וֹת עֲשֶׂ֖רֶת הַדְּבָרִ֑ים וַֽיִּכְתְּבֵ֔ם עַל שְׁנֵ֖י לֻח֥וֹת אֲבָנִֽים: ד:ידוְאֹתִ֞י צִוָּ֤ה יְ-הֹוָה֙ בָּעֵ֣ת הַהִ֔וא לְלַמֵּ֣ד אֶתְכֶ֔ם חֻקִּ֖ים וּמִשְׁפָּטִ֑יםלַעֲשֹׂתְכֶ֣ם אֹתָ֔ם בָּאָ֕רֶץ אֲשֶׁ֥ר אַתֶּ֛ם עֹבְרִ֥ים שָׁ֖מָּה לְרִשְׁתָּֽהּ:

Deut 4:9 …And make them known to your children and to your children’s children: 4:10 The day you stood before Yhwh your God at Horeb, when Yhwh said to Me, “Gather the people to Me that I may let them hear My words… 4:11 You came forward and stood at the foot of the mountain…. 4:12 Yhwh spoke to you out of the fire. You heard the sound of words… 4:13 He declared to you the covenant that He commanded you to observe, the Ten Commandments; and He inscribed them on two tablets of stone. 4:14 At the same time Yhwh commanded me to impart to you laws and rules for you to observe in the land that you are about to cross into and occupy.

The Decalogue here constitutes God’s covenant that the people needed to hear directly. Verse 14, “At the same time Yhwh commanded me to impart to you laws and rules for you to observe…” then means that God commanded Moses to supplement the Decalogue with statutes and ordinances of his own— Moses did not simply decide on his own initiative to command the Israelites his commandments. God told Moses to do this! This is precisely the conception of the Mitzvot suggested by R. Nissim!

God commands Moses to Teach Statutes and Ordinances

‍This limited revision of the Deuteronomic conception, that God gave the Decalogue and Moses came up with the rest of the laws, also appears to be reflected in the verses 5—8 of the same chapter:

דברים ד:הרְאֵ֣ה׀ לִמַּ֣דְתִּי אֶתְכֶ֗ם חֻקִּים֙ וּמִשְׁפָּטִ֔ים כַּאֲשֶׁ֥ר צִוַּ֖נִי יְ-הֹוָ֣ה אֱלֹהָ֑י לַעֲשׂ֣וֹת כֵּ֔ן בְּקֶ֣רֶב הָאָ֔רֶץ אֲשֶׁ֥ר אַתֶּ֛ם בָּאִ֥ים שָׁ֖מָּה לְרִשְׁתָּֽהּ: ד:ווּשְׁמַרְתֶּם֘ וַעֲשִׂיתֶם֒ כִּ֣י הִ֤וא חָכְמַתְכֶם֙ וּבִ֣ינַתְכֶ֔ם לְעֵינֵ֖י הָעַמִּ֑ים אֲשֶׁ֣ר יִשְׁמְע֗וּן אֵ֚ת כָּל הַחֻקִּ֣ים הָאֵ֔לֶּה וְאָמְר֗וּ רַ֚ק עַם חָכָ֣ם וְנָב֔וֹן הַגּ֥וֹי הַגָּד֖וֹל הַזֶּֽה: ד:זכִּ֚י מִי ג֣וֹי גָּד֔וֹל אֲשֶׁר ל֥וֹ אֱלֹהִ֖ים קְרֹבִ֣ים אֵלָ֑יו כַּי-הֹוָ֣ה אֱלֹהֵ֔ינוּ בְּכָל קָרְאֵ֖נוּ אֵלָֽיו: ד:חוּמִי֙ גּ֣וֹי גָּד֔וֹל אֲשֶׁר ל֛וֹ חֻקִּ֥ים וּמִשְׁפָּטִ֖ים צַדִּיקִ֑ם כְּכֹל֙ הַתּוֹרָ֣ה הַזֹּ֔את אֲשֶׁ֧ר אָנֹכִ֛י נֹתֵ֥ן לִפְנֵיכֶ֖ם הַיּֽוֹם:

Deut 4:5 See, I have imparted to you laws and rules, as Yhwh my God has commanded me, for you to abide by in the land that you are about to enter and occupy. 4:6 Observe them faithfully, for that will be proof of your wisdom and discernment to other peoples, who on hearing of all these laws will say, “Surely, that great nation is a wise and discerning people.” 4:7 For what great nation is there that has a god so close at hand as is Yhwh our God whenever we call upon Him? 4:8 Or what great nation has laws and rules as perfect as all this Teaching that I set before you this day?

Verse 5 indicates that God commanded Moses to teach the people statutes and ordinances for them to follow in the land; it does not state that God gave Moses these statutes. The text argues that obedience to these righteous statutes would impress the nations of the world with Israel’s greatness as a wise and understanding nation, but says nothing about the wisdom of Israel’s deity.

In short, according to this stage, God delivered the Decalogue only to the people, and the rest of the laws were Moses’ idea, though the fact that there should be more laws may indeed have been God’s.

Stage 3 – Moses Learns All the
Commandments on Horeb (Deut. 5)

Conflicting Conceptions of God’s Part in Giving the Law

‍Several passages within the book of Deuteronomy imply another conception of the giving of its laws, not just the Decalogue, as may be seen by comparing Deut. 6:17 with 12:28.

• Deut 6:17

שָׁמ֣וֹר תִּשְׁמְר֔וּן אֶת מִצְוֹ֖ת יְ-הֹוָ֣ה אֱלֹהֵיכֶ֑ם וְעֵדֹתָ֥יו וְחֻקָּ֖יו אֲשֶׁ֥ר צִוָּֽךְ:

Be sure to keep the commandments, decrees, and laws that YHWH your God has enjoined upon you.

• Deut 12:28

שְׁמֹ֣ר וְשָׁמַעְתָּ֗ אֵ֚ת כָּל הַדְּבָרִ֣ים הָאֵ֔לֶּה אֲשֶׁ֥ר אָנֹכִ֖י מְצַוֶּ֑ךָּ לְמַעַן֩ יִיטַ֨ב לְךָ֜ וּלְבָנֶ֤יךָ אַחֲרֶ֙יךָ֙ עַד עוֹלָ֔ם כִּ֤י תַעֲשֶׂה֙ הַטּ֣וֹב וְהַיָּשָׁ֔ר בְּעֵינֵ֖י יְ-הֹוָה אֱלֹהֶֽיךָ:

Be sure to heed all these commandments that I (=Moses) enjoin upon you; thus it will go well with you and with your descendants after you forever, for you will be doing what is good and right in the sight of YHWH your God.

The formulations are similar, yet where Deuteronomy 12:28 speaks of the things that Moses enjoins, without intimating that Moses enjoins God’s laws, Deuteronomy 6:17 speaks of God’s laws that God enjoins. The similarities between Deut 6:17 and 12:28 (both beginning with a doubled verb phrase starting with שמר) imply that one is likely a theological reworking of the other. Most probably, a later editor, uncomfortable with the implication that Moses legislated the laws, recasts the giving of the laws as coming directly from God.

An in-between phrasing of this idea appears in Deut. 4:40:

וְשָׁמַרְתָּ֞ אֶת חֻקָּ֣יו וְאֶת מִצְוֹתָ֗יו אֲשֶׁ֨ר אָנֹכִ֤י מְצַוְּךָ֙ הַיּ֔וֹם אֲשֶׁר֙ יִיטַ֣ב לְךָ֔ וּלְבָנֶ֖יךָ אַחֲרֶ֑יךָ…

Observe His laws and commandments, which I enjoin upon you this day, that it may go well with you and your children after you…

This passage also echoes Deut. 12:28 with the words, “that it may go well with you, and your children after you.” It adds, however, that Moses commands the commandments of God, most likely implying that what Moses taught he learned from God on Mount Horeb. Many passages in Deuteronomy make this claim.[10] Yet, as we saw above, other verses in Deuteronomy suggest otherwise and they should not be normalized to agree with the conception found in 4:40 and elsewhere.

God as Lawgiver: Moses as Mouthpiece

‍The main impression left by the book of Deuteronomy as a whole is that of Deuteronomy 4:40, that the commandments of God originated at Horeb (Deuteronomy’s name for Sinai) in a revelation to Moses, and were taught to Israel by Moses. In fact, according to conclusion of Deut. 5, God had originally planned to relate all of the commandments of the Torah to the people at Horeb. However, after hearing the first commandments, the people panicked and asked Moses to receive the remaining commandments from God on their behalf. Thus, we read (5:20-28 [23-31 in some Bibles]):

דברים ה:כ… וַתִּקְרְב֣וּן אֵלַ֔י כָּל רָאשֵׁ֥י שִׁבְטֵיכֶ֖ם וְזִקְנֵיכֶֽם׃ ה:כאוַתֹּאמְר֗וּ הֵ֣ן הֶרְאָ֜נוּ יְ-הוָ֤ה אֱלֹהֵ֙ינוּ֙ אֶת כְּבֹד֣וֹ וְאֶת גָּדְל֔וֹ וְאֶת קֹל֥וֹ שָׁמַ֖עְנוּ מִתּ֣וֹךְ הָאֵ֑שׁ הַיּ֤וֹם הַזֶּה֙ רָאִ֔ינוּ כִּֽי יְדַבֵּ֧ר אֱלֹהִ֛ים אֶת הָֽאָדָ֖ם וָחָֽי׃ ה:כבוְעַתָּה֙ לָ֣מָּה נָמ֔וּת כִּ֣י תֹֽאכְלֵ֔נוּ הָאֵ֥שׁ הַגְּדֹלָ֖ה הַזֹּ֑את אִם יֹסְפִ֣ים׀ אֲנַ֗חְנוּ לִ֠שְׁמֹעַ אֶת־ק֙וֹל יְ-הוָ֧ה אֱלֹהֵ֛ינוּ ע֖וֹד וָמָֽתְנוּ׃ ה:כגכִּ֣י מִ֣י כָל בָּשָׂ֡ר אֲשֶׁ֣ר שָׁמַ֣ע קוֹל֩ אֱלֹהִ֙ים חַיִּ֜ים מְדַבֵּ֧ר מִתּוֹךְ הָאֵ֛שׁ כָּמֹ֖נוּ וַיֶּֽחִי׃ ה:כדקְרַ֤ב אַתָּה֙ וּֽשֲׁמָ֔ע אֵ֛ת כָּל אֲשֶׁ֥ר יֹאמַ֖ר יְהוָ֣ה אֱלֹהֵ֑ינוּ וְאַ֣תְּ׀ תְּדַבֵּ֣ר אֵלֵ֗ינוּ אֵת֩ כָּל אֲשֶׁ֙ר יְדַבֵּ֜ר יְ-הוָ֧ה אֱלֹהֵ֛ינוּ אֵלֶ֖יךָ וְשָׁמַ֥עְנוּ וְעָשִֽׂינוּ׃ ה:כהוַיִּשְׁמַ֤ע יְ-הוָה֙ אֶת ק֣וֹל דִּבְרֵיכֶ֔ם בְּדַבֶּרְכֶ֖ם אֵלָ֑י וַיֹּ֙אמֶר יְהוָ֜ה אֵלַ֗י שָׁ֠מַעְתִּי אֶת ק֙וֹל דִּבְרֵ֜י הָעָ֤ם הַזֶּה֙ אֲשֶׁ֣ר דִּבְּר֣וּ אֵלֶ֔יךָ הֵיטִ֖יבוּ כָּל אֲשֶׁ֥ר דִּבֵּֽרוּ… ה:כזלֵ֖ךְ אֱמֹ֣ר לָהֶ֑ם שׁ֥וּבוּ לָכֶ֖ם לְאָהֳלֵיכֶֽם׃ ה:כחוְאַתָּ֗ה פֹּה֮ עֲמֹ֣ד עִמָּדִי֒ וַאֲדַבְּרָ֣ה אֵלֶ֗יךָ אֵ֧ת כָּל הַמִּצְוָ֛ה וְהַחֻקִּ֥ים וְהַמִּשְׁפָּטִ֖ים אֲשֶׁ֣ר תְּלַמְּדֵ֑ם וְעָשׂ֣וּ בָאָ֔רֶץ אֲשֶׁ֧ר אָנֹכִ֛י נֹתֵ֥ן לָהֶ֖ם לְרִשְׁתָּֽהּ׃

Deut 5:20 …you came up to me, all your tribal heads and elders, 5:21 and said, “YHWH our God has just shown us His majestic Presence, and we have heard His voice out of the fire; we have seen this day that man may live though God has spoken to him. 5:22 Let us not die, then, for this fearsome fire will consume us; if we hear the voice of YHWH our God any longer, we shall die. 5:23 For what mortal ever heard the voice of the living God speak out of the fire, as we did, and lived? 5:24 You go closer and hear all that YHWH our God says, and then you tell us everything that YHWH our God tells you, and we will willingly do it.” 5:25 YHWH heard the plea that you made to me, and YHWH said to me, “I have heard the plea that this people made to you; they did well to speak thus… 5:27 Go, say to them, ‘Return to your tents.’ 5:28 But you remain here with Me, and I will give you the whole Instruction—the laws and the rules—that you shall impart to them, for them to observe in the land that I am giving them to possess.

These verses state that God agreed to Israel’s request not to receive any more of God’s laws from God himself. This third stage of Deuteronomy’s development required presenting the Decalogue in a forced and unnatural way, as an accident, since the editors sought to present everything as from God, but were working with a Deuteronomy text that already contained a distinction between the revelation of the Decalogue and the legislation of the rest of the Deuteronomic legal corpus.

The book of Deuteronomy thus presents Moses as teaching Israel at the Plains of Moab those laws that they had declined to receive from God at Horeb forty years earlier.[11] This is the import of Deut. 6:1, in which Moses moves from his narrative about what happened at Horeb forty years earlier and the present situation:

דברים ו:אוְזֹ֣את הַמִּצְוָ֗ה הַֽחֻקִּים֙ וְהַמִּשְׁפָּטִ֔ים אֲשֶׁ֥ר צִוָּ֛ה יְ-הֹוָ֥ה אֱלֹהֵיכֶ֖ם לְלַמֵּ֣ד אֶתְכֶ֑ם לַעֲשׂ֣וֹת בָּאָ֔רֶץ אֲשֶׁ֥ר אַתֶּ֛ם עֹבְרִ֥ים שָׁ֖מָּה לְרִשְׁתָּֽהּ:

Deut 6:1 And this is the Instruction—the laws and the rules—that Yhwh your God has commanded [me] to impart to you, to be observed in the land that you are about to cross into and occupy.

This formulation echoes Deut. 5:27 [31]:

וַאֲדַבְּרָ֣ה אֵלֶ֗יךָ אֵ֧ת כָּל הַמִּצְוָ֛ה וְהַחֻקִּ֥ים וְהַמִּשְׁפָּטִ֖ים אֲשֶׁ֣ר תְּלַמְּדֵ֑ם.

I will give you (=Moses) the whole Instruction—the laws and the rules—that you shall impart to them.

Together these texts suggest that according to this part of Deuteronomy, the laws given by Moses to the people at the Plains of Moab were given to him by God at Horeb.

Conclusion: R. Nissim, Deuteronomy, and Hammurabi

The conception of the law expressed by R. Nissim and reflected in most of Deut. 4 is also reflected in the code of Hammurabi. I cite the words of Prof. V. A. Hurowitz, z”l:[12]

The laws [of Hammurapi’s Code] were not divinely authored, but since Hammurapi presents them as the means by which he carried out his divine commission to establish justice, they may be considered divinely sanctioned, and since Hammurapi portrays himself as being granted by the gods the ability to do justice, the laws which he attributes to himself are ipso facto divinely inspired.[13]

This sounds much like the conception of R. Nissim and Deuteronomy 4.

1. See מעשה נסים, pp. 177—178 and Kreisel’s discussion in his introduction on pp. 28—29.
2. A more thorough analysis of R. Nissim’s view is needed, specifically to understand why this false attribution should not be considered simple dishonesty, and how R. Nissim squared his view with the explicit statement of the sages that (b. Sanhedrin 99a),

ואפילו אמר: כל התורה כולה מן השמים, חוץ מפסוק זה שלא אמרו הקדוש ברוך הוא אלא משה מפי עצמו – זהו כי דבר ה’ בזה

 

Even if someone says: “The entire Torah is from heaven except for a certain verse which the Holy One did not say but rather Moses said it of his own accord – this counts as (Num 15:31), “for he has insulted the word of God.”

See Kreisel’s discussion (referenced in fn 1) for an approach to this problem. For other medieval perspectives on prophecy and how God communicated with Moses, see Chaim Kreisel’s TABS essay, “What is Prophecy?.”
3. The text is somewhat confusing since it is not clear if the speaker of the passage is God or Moses. The formulations of verses 14-15, “and I shall provide the rain of your land… and I shall provide grass in the field for your animals…” would seem to indicate that God is the speaker. On the whole, however, Deuteronomy presents itself as the speech of Moses, and this is clearly the case in verse 13. It thus seems that we must follow the Septuagint to verses 14-15 and read, “and he shall provide…” The MT reflects the late and partial attempt of editors and copyists to depict God as the speaker of Deuteronomy. The opposite is true of v. 13, however, in which the Septuagint reads, “if ye shall hearken diligently unto His commandments which I command you this day” as opposed to the MT’s “my commandments.” This reading follows the pattern reflected in other passages, wherein it is insisted that Moses commands God’s commandments – a pattern I believe to be later. Either way, verse 17 reverts clearly to Mosaic speech by stating, “the anger of the Lord (not: My anger) will burn against you, and he (not: I) will stop the heavens so that there will be no rain.”
4. The conception of the laws as coming from Moses also seems to undergird the two passages describing the written Torah, namely the law of the King writing a Torah (Deut 17:18-19) and the description of Moses writing the Torah (Deut 31:9-13). Although both passages mention that the laws should bring one to “revere YHWH,” this doesn’t mean that YHWH gave the laws, only that Moses’ intention in crafting the laws was to instill in Israel reverence for God.
5. See, for example, Deut. 4:1; 6:6—10; 11:22—25.
6. When speaking of “the Torah” I do not mean the Pentateuch, but the “Teaching” of which Deuteronomy speaks. The reference is apparently to some form of the book of Deuteronomy itself.
7. This passage, I believe, is a secondary addition to the Psalm. The Psalm praises the man who does not walk in the counsel of the sinners and proclaims that the endeavors of the righteous will succeed while those of the wicked will fail. Many Psalms speak of the contrast between the righteous and the wicked without any reference to intensive involvement with God’s law. Note how verse 3 follows perfectly after verse 1:

א אשרי האיש אשר לא הלך בעצת רשעים ובדרך חטאים לא עמד ובמושב לצים לא ישב.

 

1 Blessed is the man who walks not in the counsel of the wicked, nor stands in the way of sinners, nor sits in the seat of scoffers;

 

ב כי אם בתורת יהוה חפצו ובתורתו יהגה יומם ולילה.

 

2 but his delight is in the law of YHWH, and on his law he meditates day and night.

 

ג והיה כעץ שתול על פלגי מים אשר פריו יתן בעתו ועלהו לא יבול וכל אשר יעשה יצליח.

 

3 He is like a tree planted by streams of water, that yields its fruit in its season, and its leaf does not wither. In all that he does, he prospers.

For the final editor of the Psalm, it is not enough to avoid associating with the wicked to ensure success and prosperity; the righteous man must be continuously involved with the divine Torah.
8. The only case where Deuteronomy uses the phrase כאשר צוך ה’ אלהיך with reference to a non-Decalogue law is in Deut. 20:17 with reference to the command to annihilate the Canaanites of Deut. 7:1-2. The passage is Deut. 20:17 has been recognized by many as late on other grounds. In light of the analysis offered here, it seems likely that the law of Deut. 7 was originally conceived of as Mosaic rather than divine. This observation, I believe, is of considerable theological significance for the attempt to come to terms with this extremely disturbing passage.
9. In my view, the oldest form of Deuteronomy has nothing about Horeb at all. I hope to expand on this point in detail in a future TABS essay.
10. Another good example is Deut 8:11:

דברים ח:יאהִשָּׁ֣מֶר לְךָ֔ פֶּן תִּשְׁכַּ֖ח אֶת יְ-הוָ֣ה אֱלֹהֶ֑יךָ לְבִלְתִּ֨י שְׁמֹ֤ר מִצְוֺתָיו֙ וּמִשְׁפָּטָ֣יו וְחֻקֹּתָ֔יו אֲשֶׁ֛ר אָנֹכִ֥י מְצַוְּךָ֖ הַיּֽוֹם׃

 

Deut 8:11 Take care lest you forget Yhwh your God and fail to keep His commandments, His rules, and His laws, which I enjoin upon you today.

This conception of the Mosaic law is reflected outside of Deuteronomy as well. For instance, 2 Kings 14:6 relates that Amaziah king of Judah killed the assassins of his father,

וְאֶת־בְּנֵ֥י הַמַּכִּ֖ים לֹ֣א הֵמִ֑ית כַּכָּת֣וּב בְּסֵ֣פֶר תּֽוֹרַת־מֹ֠שֶׁה אֲשֶׁר־צִוָּ֨ה יְ-הֹוָ֜ה לֵאמֹ֗ר לֹא־יוּמְת֨וּ אָב֤וֹת עַל־בָּנִים֙ וּבָנִים֙ לֹא־יוּמְת֣וּ עַל־אָב֔וֹת כִּ֛י אִם־אִ֥ישׁ בְּחֶטְא֖וֹ ימות יוּמָֽת:

 

But he did not put to death the children of the assassins, in accordance with what is written in the Book of the Teaching of Moses, where YHWH commanded (cf. Deut 24:16), “Parents shall not be put to death for children, nor children be put to death for parents; a person shall be put to death only for his own crime.”

11. In general, Deuteronomy is pictured as a long speech. Itamar Kislev, however, has argued that it should be pictured as a book. See his TABS essay, “Understanding Deuteronomy on Its Own Terms.”
12. The late Professor Hurowitz (1948-2013) was an Assyriologist who wrote extensively on the Bible and the Ancient Near East. He taught at Ben Gurion University in Beer Sheba.
13. V. A. Hurowitz, “Canon and Canonization in Mesopotamia: Assyriological Models or Ancient Realities?” in Proceedings of the Twelfth World Congress of Jewish Studies, Division A: The Period of the Bible (Jerusalem: WUJS, 1999), 11*.