Westbrook, Raymond. "What is the Covenant Code?" Pages 15-36 in Theory and Method in Biblical and Cuneiform Law: Revision, Interpolation, and Development. Journal for the Study of the Old Testament Supplement Series 181. Edited by Bernard Levinson. Sheffield: Sheffield, 1994.
Otto, Eckart. "Aspects of Legal Reforms and Reformulations in Ancient Cuneiform and Israelite Law." Pages 160-196 in Theory and Method in Biblical and Cuneiform Law: Revision, Interpolation, and Development. Journal for the Study of the Old Testament Supplement Series 181. Edited by Bernard Levinson. Sheffield: Sheffield, 1994.
In biblical studies, the term Bundesbuch ("Book of the Covenant") refers to the discrete section of Ex 20:22–23:19. The scholarship on the Bundesbuch is vast and complex. To the extent it touches on the nature of the laws contained therein in relationship to extra-biblical and specifically cuneiform law in the ancient Near East, two scholars whose theories are representative of the major, contrasting opinions are Raymond Westbrook and Eckart Otto.
The fundamental difference between Westbrook and Otto is their perception of the formal development of ancient Near Eastern law. Otto, in "Aspects of Legal Reforms and Reformulations in Ancient Cuneiform and Israelite Law," argues that the scholastic backdrop to the creation of cuneiform law collections points to their ongoing redactional development and necessitates a diachronic analysis, which in turn provides a foundation for understanding ancient Near Eastern and Israelite legal history (1994:161-163). In support of these assertions, Otto analyzes the discrete sections devoted to marriage and bodily injury in Codex Ešnunna, Codex Ḫammurāpi, the Middle Assyrian Laws, and the Hittite Laws for signs of redactional development. Naturally, Otto finds the seams of redactional activity, reflected in the formal composition of the laws, developments in the character and complexity of the laws, such as the severity of the liability, and in the scribe's efforts to mediate between private and public law (1994:163-182). He subsequently applies this model of dynamic common law to a reading of the Book of the Covenant in Exodus. Otto asserts that talionic laws are older and, in the structure of the received text, partially mitigated by the non-talionic laws of compensation that circumscribe them (1994:182-186). He also argues for subsequent theological interpretations and redaction in successive frames that privileged certain social and cultic concerns (1994:186-189) and a final redaction of the Book of the Covenant that "arranged the laws according to the deuteronomistic Decalogue" (1994:189-192). Otto concludes by examining the reformulation of the Book of the Covenant in Deuteronomy as further evidence of the dynamic process of legal reform and reformulation (1994:192-195).
In addressing this specific question, Westbrook is less concerned with the theological framework of the Book of the Covenant and primarily concerned with the so-called 'Covenant Code,' that is the discrete section, defined as Ex 21:1–22:19, which contains laws potentially "justiciable in a human (as opposed to divine) court" (1994:15). At the outset, Westbrook targets the historical research in biblical studies on the 'Covenant Code' and specifically the work of Otto. He notes Alt's schema of apodictic and casuistic law, which Otto adopts, and more importantly, the different historical settings or origins assigned to these formal categories by Otto and others. He observes that at the root of the theory is a fundamental claim that Israelite law, and even cuneiform law, "underwent radical development from 'primitive law' to a relatively sophisticated model" and that this development is evident in the text (1994:19-20). Westbrook questions the historical philosophical and ethical foundations underlying such claims (1994:21-22). He also asserts, by contrast, that the Sumerian, Babylonian, Assyrian, and Hittite cuneiform evidence points to the "static nature" of ancient Near Eastern law; notwithstanding minor differences in details, he argues that the forms and content of the legal documents remain essentially constant over hundreds of years (1994:22-28). Interestingly, Westbrook connects the static nature of the law to the lack of any "major advance in technology" or "radical change in social or political structure" (1994:28). He argues that the ancient Near Eastern social and intellectual environment was simply "hostile to change" and its "intellectual environment ... handicapped by [an] inability to define terms, create general categories, or reason vertically from the general to the particular" (1994:28). From these conclusions, Westbrook moves to situate the Covenant Code firmly in its historical context. He argues that the Covenant Code essentially conforms to its cuneiform counterparts in form and content and concludes that the presumption must be "that the Covenant Code is a coherent text comprising clear and consistent laws, in the same manner as its cuneiform forbears" (1994:28-36).
Obviously, these two perspectives on cuneiform and biblical law are quite distinct and view ancient Near Eastern legal history in mutually exclusive ways. Otto's view presumes a dynamic legal system with active legal reforms and reformulations while Westbrook reconstructs a static system mired in a hostile and stunted social and intellectual environment. Each scholar then takes this view and applies it to the biblical text. Despite the perhaps overly negative characterization of the social and intellectual climate in the ancient Near East, Westbrook seems to have a more solid foundation. He adeptly shows that the distinctions Otto alleges between the usage and historical settings of apodictic and casuistic forms as well as his basis for a development from primitive to 'sophisticated' law are false. The extant evidence reveals all these characteristics in cuneiform law in a way that does not allow for Otto's teleological theories. Furthermore, Westbrook shows that the nature of the differences between laws is really not as substantial as Otto posits. The differences reflect either the degree or type of legal consequences, variations in the circumstances covered in the protasis of casuistic formulations, and miscellaneous omissions (1994:26-27). All of these changes can be explained textually or in light of royal edicts (1994:26-27). At the same time, there is remarkable continuity in the broader categories of the law, such that the same topics are usually covered, sometimes with identical or near-identical formulations (1994:31).
It is important to note, however, that Westbrook only makes an argument for "the presumption that the Covenant Code is a coherent text" (1994:36) and only, I would add, insofar as the Covenant Code conforms to the genre of cuneiform law. As such, while Westbrook exposes Otto's problematic theoretical framework, his conclusion does not absolutely demand the coherence of the text; it only puts the onus on scholars who wish to argue for interpolation. This leaves some room for theories of composition that can defend an interpolation on grounds other than Otto's theories of dynamic law and teleological development. Significantly, the fact that the 'Covenant Code' exists within a narrative framework in contrast to its cuneiform counterparts opens the door considerably for redactional development, though I am inclined to agree with Westbrook that little is likely to be gained from the proposals (1994:35-36). They are primarily speculation and can not really add anything substantial to the nature of the laws themselves.
In ancient Mesopotamia, people, not unlike today, took out loans to provide for immediate subsistence, pay taxes, rents, or other debts, and/or raise capital for business and trade activities. The terms and conditions of loans and other credit transactions vary from region to region, era to era, and based on the function of the loan, the parties involved, or prevailing economic conditions. Lending occurred primarily in the household agricultural sector and the mercantile sector (Westbrook 2001:330; Van De Mieroop 2002:83-84). Naturally, the contemporary analysis of ancient loans, debts, and loan security is limited by the nature and provenance of the extant documents.
In the household agricultural sector, lenders or creditors issued loans or credit, in the form of commodities (silver, barley, dates), as a part of the management, collection, and/or exchange of agricultural goods and/or in order to obtain labor, assist family, friends, neighbors, and/or tenants, and/or make profit from interest. Depending on the function and term of the loan, they were issued with or without interest. Interest-free loans were usually short-term and granted to alleviate economic distress. Alternatively, as Garfinkle notes with respect to the Ur III period, many interest-free loans might be "fictitious arrangements in which goods were 'loaned' to a craftsman for production" (2004:3). Interest-bearing loans are more common in the textual record. Interest could be paid either in kind, usually at the end of the term, or by an antichretic pledge of land or labor. In the Ur III period, interest rates (if paid in kind) were customary, set at 33% for barley loans and 20% for silver, though the term of the loan could vary and so affect the annualized rate (Garfinkle 2004:9-16). In the Old Babylonian period and afterwards, interest rates were subject to more variation (Garfinkle 2004:12 but see Van De Mieroop 2002:84-85). Usually in lieu of in kind interest payments, an antichretic pledge gave the creditor usufruct of the debtor's property, in whole or in part, or usufruct of a member of the debtor’s household. The latter human pledge provided institutional or private landowners a means to obtain labor for their own lands and so offset chronic labor shortages (especially in the Ur III period).
The primary forms of security were antichretic or hypothec pledges, surety, and, when applicable, "joint liability of co-debtors" (Westbrook 2001:328). In the event the debtor defaulted, interest penalties might be imposed, the creditor could confiscate the pledge, and/or, in the absence of a pledge, seize and confine members of the debtor's household until the debt was paid (Westbrook 2001:331-336). Significantly, mechanisms existed to allow debtors to recover lost pledges through redemption or release. Customs and laws are attested allowing debtors to redeem at full price ancestral land or members of a household, even after forfeiture, or obtain their own release or the release of a household member after a specified period (Westbrook 2001:72-74, 75-76). Additionally, kings occasionally issued edicts to cancel debts and release or restore pledges (Westbrook 2001:74-76).
In the mercantile sector, lenders or creditors issued loans to finance new or ongoing businesses or trade ventures. The activity in this particular sector is most evident in the extant documents relating to the Old Assyrian trade network but it is attested in most periods (Westbrook 2001:330; see also Van De Mieroop 2002: passim). In contrast to loans and credit in the agricultural sector, for which lenders might derive any number of advantages, such as labor, profit, or simply goodwill, the primary purpose of commercial loans was profit. In the case of the Old Assyrian trade network, wealthy investors, including private individuals or temples, would contribute to a merchant's naruqqu ("investment purse"). The merchant could use this naruqqu to manage trade and business and, upon the conclusion of the operation or at the end of a term, profits were divided between the investors and the merchant (Van De Mieroop 2002:76). Given this emphasis on profit, antichresis and the pledge of land or labor in general are not as prevalent but rather the primary forms of security were surety, "a floating charge on business assets or the right ... to borrow from a third party on the debtor’s behalf" (Westbrook 2001:330). In order to promote a more stable credit system, interest penalties to deter non-payment were much more common and, as Westbrook observes, loans in the mercantile sector were "expressly excluded" from royal edicts abolishing debt (2001:74).
In the study of economy in ancient Egypt, many Egyptologists, perhaps influenced as much by Polanyi's model of redistribution and reciprocity as by the limited, extant evidence, argue for a considerably different and not nearly so complex system of credit. According to Bleiberg, the credit system in ancient Egypt was ideologically centered on the concept of ma'at or "right order," which obligated people of higher status to aid the poor and hungry (2002:257). Thus, the dominant loan type in ancient Egypt was a grain loan extended to those in need under terms of reciprocity if the parties were equal or related in social status, or redistribution if the parties differed in social status (2002:258-259). Before the New Kingdom period, loans and credit were simple agreements to delay payment within the barter exchange system; one party traded certain commodities to another party and agreed to accept payment, in commodities, often different than those issued, at a future date (Bleiberg 2002:260-261). In the New Kingdom period, from records at Deir el-Medinah, Bleiberg identifies two types of credit or loans: (1) an open-term system in which debtors received goods from a third party to assist in completing a barter exchange, and (2) a fixed-term system in which debtors delayed payment for goods and swore an oath to repay the debt by a fixed date (2002:263-269). In the first system, debtors put themselves under an obligation to lend to those from whom they previously borrowed, ensuring a productive system (Bleiberg 2002:263-266). Also, parties in this open system, usually people with a slight inequality of social status but having regular social contact, were constrained to lend and deal fairly with one another by social custom and the threat of ostracism. In the second system, probably contracted among people not in close social contact or of unequal status, debtors could incur severe penalties for non-payment, including doubling of the debt (Bleiberg 2002:266-269). In the first millennium, Egypt adopted lending and credit practices akin to the systems attested in ancient Mesopotamia as described above (Bleiberg 2002:257-277).
Due to the nature of Egypt's lending practices before the first millennium, Goelet argues that "debts had not yet become a disturbing factor in the conduct of government" (2002:284). Goelet observes that though certain royal decrees from the Old Kingdom and New Kingdom period have a superficial resemblance to Mesopotamian debt release edicts, they are meant to protect institutions not individuals (2002:283). The decrees differ from Mesopotamian counterparts because they do not provide comprehensive debt release but rather grant certain individuals belonging to royal or cultic institutions exemptions from rents, fees, or obligations (Goelet 2002:283). These exemptions ensure that these individuals are able to devote themselves more completely to their public service and/or cultic duties (Goelet 2002:283).
Despite the differences, credit in both Egypt and Mesopotamia served to bind smaller households to larger households or temple estates. Of course, the relationship, while more often than not beneficial to both parties, also must have served as a method of exploitation. Still, it was an essential means to acquire goods and services in the ancient world, provide for daily needs, and also enter into productive business and trade. The system in Egypt probably contributed to the overall stability of the kingdom by promoting social and community cohesion and minimizing competing private interests. The system in Mesopotamia must have provided greater opportunity for individual wealth creation and, therefore, some possibility of upward social mobility.
One of the fundamental cornerstones of any economy is land ownership. In past scholarship of this issue in ancient Mesopotamia, the model of the temple-state gained considerable currency. Arguing from the administrative archives of Girsu, initially Deimel and then more comprehensively Schneider and Falkenstein describe a system in which temples occupied the predominant, central role in the socio-political and economic shape of the early Mesopotamian civilizations. The temple-state paradigm rests on the presumption that the administrative archives attested to the large-scale ownership and management of lands by temples. Schneider and Falkenstein argue that the temples also controlled labour and that exchange operated along redistributive systems.
Although this collectivist ideal persists in the ideas of Renger, key elements of the theory have been undermined by Gelb and Foster. Chiefly Gelb's analysis of the ancient kudurrus strongly suggests that land was privately owned. Whether the kudurrus, however, demand this is open to some debate as the real estate transactions may in some cases simply reflect rental agreements, transactions among institutional households rather than "private" interests, or some sort of prebendary/manorial transfer or reallocation. Notably, most of the transactions involve small plots suitable only for the subsistence of one or two families. Renger observes that in many cases the transactions involve multiple sellers and a single buyer, which he thinks reflects an institutional purchase and a process of collectivization (1995:276).
Steinkeller adopts some of Gelb's insights but via a theory of regional variation. He argues that in southern Mesopotamia temple estates did, in fact, control "virtually all the economic resources available in a given city-state, in particular, its holdings in arable land, were considered the outright property of the local pantheon" (Steinkeller 1999:290). Under this system, the gods owned the lands, the temples managed them, subsistence fields were assigned to the members of the community commensurate with their status, and the necessities of life were distributed through allocation (Steinkeller 1999:290, 294-295). In essence, Steinkeller accepts the views of Deimel, Schneider, and Falkenstein as it pertains to southern Mesopotamia.
In Steinkeller's theory of regional variation, however, the situation is different in northern Mesopotamia, though he is, by his own admission, only following Falkenstein in this as well (1999:299). He argues that in northern Mesopotamia the king and the elites controlled most arable land but that there is also some individual land ownership (Steinkeller 1999:299). More importantly, the system of land ownership in the north permitted the alienation of the land (Steinkeller 1999:299). Furthermore, according to the Steinkeller, the temples are not significant players in the land tenure system of the north (1999:300). Steinkeller argues that the differences are the result of economic, ecological, socio-political, cultural, and religious determinants (1999:301-308).
Renger largely follows a similar course in his interpretation and highlights many of the same differences between north and south. He places particular emphasis on the religious and cultural difference between the Sumerian south and its theologies of city-gods over against the Semitic north and its nomadic past and astral deities (1995:283). While this seems highly dubious to me, Renger's greater contribution is the temporal variation that he posits. Renger argues that an interest in irrigation led to state control of previously local communal properties and the development of institutional households, particularly the temple estates (1995:272-280). Renger further suggests that the Sargonic rulers divested many of the traditional institutions of their lands and placed them under direct state control (1995:280-284) but that in the Ur III period, the land was returned to the temples (1995:284-288). Through all periods though, Renger generally posits strong institutional structures and only very limited individual ownership. He, like Steinkeller, essentially accepts Falkenstein’s theory (1995:288).
The theory, however, stands in contrast to the interpretation of Diakonoff. Studying a list of land tracts in the vicinity of Girsu, Diakonoff determined that "the total land area of Early Dynastic Girsu was as much as ten times the area Deimel had calculated as having belonged to the temples" (Robertson 1995:450). Consequently, a significant portion of the land must have existed, and so a significant number of the population of Girsu must have operated, outside the control of the temples (Robertson 1995:451). Diakonoff, not surprisingly then, held that royal and private estates existed alongside the temple estates in the south just as in the north. Indeed, the distribution, type, and quantity of the available evidence ought to caution against presumptuous conclusions that posit such a radical difference between the south and the north. The available evidence from the south is from temple archives while the north has yielded primarily royal and private archives. There is also a relative dearth of records from the south compared to the finds in the north. Perhaps most significant to the ultimate weakness of the temple-state hypothesis, however, is Foster’s reading of the "Reforms of Uru-inimgina," which has led him to conclude that the assignment of lands to the temples of Ningirsu and Bau is an ideological/theological device and an administrative fiction (Robertson 1995:451).
So, while there is considerable reason to appreciate the significant role temples played in the land tenure system, there are also ample reasons to suspect that sacred, royal, and private land ownership were present throughout Mesopotamia and already from the early Dynastic period onwards. Indeed, Lamberg-Karlovsky observes, "As a generalization, still adhered to by many that should know better, [the temple-state paradigm] offers a wholly distorted perspective on the social order of the ancient Near East" (1999:169). Robertson therefore claims "the 'temple-state' paradigm is no longer viable" (1995:451).
In Egypt though, the great land-owners were undeniably the temples and the Pharaoh and virtually all arable lands were owned communally by either the local, cultic, or Pharaonic institutions. Starting in the Old Kingdom period, the Pharaohs would claim land that appeared as a result of shifts in the course of the Nile. The Pharaohs also started to make regular donations of land to the temples, a practice that continued through the New Kingdom period. The Harris papyrus from the reign of Ramesses II testifies that by that time the temples possessed at least one-eighth of all the arable land and such control likely only increased as temple power grew in the subsequent generations (Römer 2001:257).
Ideologically, Egyptians undoubtedly believed that all land belonged to the Pharaoh but on a more practical/pragmatic level, the management and use of the land clearly fell to individuals. Under the prerogative of the Pharaoh or the temples, the usufruct of plots were assigned to priests, soldiers, officials, and others (Römer 2001:257). While the "tenant farmer," at least in some instances, did possess considerable discretionary rights with respect to the land as the Heqanakht Papyri attest, there is no certain evidence of individual ownership of the land. All of the rights potentially fall within the rights of usufructum. Nevertheless, perhaps individual ownership is hidden behind the administrative fictions of transfers from individuals to the temple/state and the temple/state back to individuals. The problem, so far as the available evidence is concerned, is that there is only limited evidence for the alienation of land, which is a key element of individual ownership. Römer observes, however, that near the end of the New Kingdom period there are frequent sales of "smallholdings" or "fields of the commons" (2001:257). The documents even suggest that land prices declined sharply in the period perhaps under pressure from the large number of land sales (Römer 2001:257), which implies something of a land market. Still, it seems likely a communal, institutional system of land tenure dominated in ancient Egypt through most periods in contrast to the greater levels of individual ownership realized in Mesopotamia.
Biblical and Cuneiform Law
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