Biblical Theology Bulletin: A Journal of Bible

and Theology
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The Social Context of Law in the Second Temple Period

Victor H. Matthews
Biblical Theology Bulletin: A Journal of Bible and Theology 1998; 28; 7
DOI: 10.1177/014610799802800103

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 The Social Context of Law in the
Second Temple Period

Victor H. Matthews
Abstract

In this study, cultural expectation, situational expedience, and adaptation to new social norms will be the
guide for the examination of legal statements. It will be determined that in the post-exilic period, legal
pronouncement blended with political expediency and religious zeal to shape the social context. Concerns over
defensive posture within disputed regions, maintenance of protocol and recognition of the rights of posted
garrisons in conquered territories (as at Elephantine), and the general sense that people who can be defined as
identifiable groups and set in fixed patterns are easier to control may have separately or together driven Persian
policy. The reforms imposed by Nehemiah and Ezra suggest both imperial meddling as well as cultural incursion
by the advocates of Diasporic Judaism and its more rigid concept of law and ethnic identity.

In approaching the task of sketching the social context of

law in the Second Temple Period, it must be admitted from
the outset that such a task is only partially possible. The
data are by no means complete, and in many cases the ma-
terial remains as well as the textual remains are inconclu-
sive, contradictory, and even unreliable. In addition, our
understanding of the imperial policies of ancient Persia,
within which the Diasporic and Palestinian Jewish commu-
nities existed, is also incomplete (Hoglund 1991: 54-57).
With these limitations in mind, an attempt will be made
here to provide a methodological underpinning for future
research on this subject and point out some fruitful areas to
start in an investigation of the social context of law in the
Second Temple Period may be the artifactual remains of
that culture in Mesopotamia, Egypt, and Palestine. These
data can corroborate the existence of particular ceramic
(Gitin) and architectural styles (Stern 1982, 1992), which
in turn imply the maintenance of trade routes, the borrow-
ing or imposition of cultural artifacts, and the political use
of monumental construction, as well as general settlement
patterns. The degree of syncretism may thus suggest the de-
gree of assimilation to the dominant culture or at least an
aesthetic preference for new styles.
Archaeological investigations, however, provide a

explore. In particular, examples in which legal precedent is rather disjointed picture of any historical period, since they
used and legal pronouncements or statements are made to are dependent on the remains analyzed from sites exca-

deal with a particular social situation will be highlighted.
In this study the difficulties involved with the available
data and the attempt to provide a foundation for the study
of the sociology of law will be sketched out. A brief discus-
sion will then follow with a few examples from biblical and
extra-biblical texts of what I believe to be socio-legal situa-
tions. By this is meant a case in which legal data are supplied
and legal action is implied, but the basis for both the data
and the action is dependent on social context, not long
standing legal precedent. Instead of codified procedure, the
goal will be to look for cultural expectation, situational ex-
pediency, and adaptation to new social norms.
Difficulties of the Data
If Davies is correct in stating that &dquo;social systems
not easily be inferred from texts&dquo; (29), then a better place to
vated and surveyed. There are so many unexplored tells and
settlement sites that inference must always be made from
incomplete data. Given these limitations on the investiga-
tion of the material remains of ancient cultures, many
scholars are now beginning to utilize the methods and data
Victor H. Matthews, Ph.D. (Brandeis University), is Professor of
Old Testament/Hebrew Bible at Southwest Missouri State Univer-
Univer
sity, Springfield, MO 65804 (e-mail: vhm970f@vma.smsu.edu). His
publications include MANNERS AND CUSTOMS IN THE BIBLE
(Hendrickson, 1991; rev. ed.), two works co-authored with Don
C. Benjamin: OLD TESTAMENT PARALLELS: LAWS AND STORIES
IN THE ANCIENT NEAR EAST (2nd ed.; Paulist, 1997) and THE SO-
CIAL WORLD OF ANCIENT ISRAEL (Hendrickson, 1993). His most
recent publication is THE IVP BIBLE BACKGROUND COMMEN-
can- TARY : GENESIS-DEUTERONOMY (co-authored with John Walton;
InterVarsity, 1997).

7
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 of modern and sociologists. This material,
anthropologists
dependent upon field work with living cultures, must of
course be used carefully. It can be assumed with some reser-
vations, however, that similar environmental, political, and
economic forces will produce similar social phenomena. It is
only the introduction of modern technology in the Middle
East after the First World War that has drastically trans-
formed many of the traditional culture groups in that re-
gion.
It issurprising, therefore, that scholars who wish to
not
do than retell the biblical narratives, while depending
more
solely on the theological agenda of the author(s), now must
take a more comprehensive approach-drawing on biblical
and extra-biblical texts, archaeological data, and ethno-
graphic studies of comparative social situations (see
Japhet). I am not prepared to totally accept Davies’ conclu-
sion that all of the pre-Exilic &dquo;history&dquo; described in the Bible
is the result of &dquo;an attempt by scholars to blend a literary
construct with a historical society&dquo; (32). But the social
situation of the Persian Period can be examined in an at-
tempt to better understand why socio-legal situations are
described in the manner in which they are in Chronicles,
Ezra-Nehemiah, and Leviticus.
Sociology of Law
.
One step in the direction of examining the social set-
ting law in the Persian period is to provide a foundational
of
discussion of the sociology of law. Law is a reflection of the
way in which society both views and administers itself. The
study of the law by scholars has generally been divided into
Jurisprudence and the Sociology of Law. The former repre-
sents the study of existing legal systems that have been codi-
fied by a state and have been used in formal court situations
to resolve controversies and regulate the society (Milova-
novic 1994: 2). In contrast, the sociology of law involves the
study of (1) the evolution of social controls and the causes
behind their development, (2) forms of legal reasoning and
discourse, and (3) &dquo;the degree of freedom and coercion ex-
isting in the form of law&dquo;-coupled with the connection be-
tween economics and politics (Milovanovic 1994: 3-4). It is
this latter approach that will be adopted in this paper.
Not all social controls, of course, can be defined as law.
Customary behavior and adherence to rules or social norms
may or may not be dependent upon physical coercion by a
deputized group or be based on a written set of laws (Hoe-
bel ; Malinowski) . Such behavior may, however, be enforced
through peer pressure or psychological coercion. Thus,
Black (3-8) has suggested, law may be recognized in rela-
8
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tion to those acts that &dquo;mobilize&dquo; a society to react to pro-
tect individuals or the state. The more serious the offense,
the more likely it is that society will (1) create a body to en-
force &dquo;correct&dquo; behavior and (2) codify a set of specific legal
restraints to deal with future occurrences (Gibbs).
Legal theorists commonly identify three specific func-
tions of law: repressive, facilitative, and ideological (Mi-
lovanovic 1994: 8-14). The first involves the assumption
that an unregulated society will inevitably lead to anarchy.
Individuals will not automatically work for the common
good and therefore must be controlled through a variety of
coercive strategies. There is also the danger of &dquo;surplus re-
pression&dquo; by governmental bodies and ruling elites (Mar-
cuse : 32-34). Such dangers are implicit in any system when
there is an imbalance in economic prosperity or there are not
sufficient legal checks and balances built into the system.
Law’s facilitative function provides the measure of pre-
dictability to society. Encounters between members of the
society can be expected to occur in a certain, predictable
way based partially on legal restraints and on the mutual un-
derstanding that all persons are benefited by these legal ex-
pectations (Luhmann). This is particularly important to
cultures that have recently undergone social upheaval. A
return to stability means a return to social predictability.
One reflection of this is the expansion of social relationships
beyond the family level (which has its own set of kin ties and
social expectations) to the wider society through the nego-
tiation of contracts (Klare; Weber) . Only in a social atmos-
phere of mutual respect, bolstered by the guarantees of legal
recourse to the state, can true predictability occur.
,,
The ideological function of law is in fact a reflection of
the value and status system of the society that produces the
laws. Treatment of persons based on age, race, gender, na-
tional origin, or social and economic status vary from one
society to another and generally are the basis of both repres-
sive and facilitative aspects of the law (Kerruish). Certain
groups in a society often dominate discussion as well as
power and wealth. They formulate legal pronouncements
and speech to benefit themselves and attempt to convince
or justify to the rest of society why they should also partici-
pate in controlling certain actions or persons who might
lessen the dominant group’s control (Tushnet: 100). When
social struggle occurs (either through legislative debate or
through violent means) in response to this type of repres-
sion, there is also a struggle over legal speech and definition
of basic terms like property and due process. If the struggle is
successful, this generally will lead to a change in the law and
as a new definition of the society’s value-laden terms (Milova-
novic 1987).
 Perhaps the true test of a legal system is how well it
contributes tothe fulfillment of the values of its society
(Trubek: 545-55). Are there sufficiently demonstrable con-
nections between legal pronouncements and institutions
and the social values they are said to uphold? Do they pro-
vide sufficient legal restraint to ensure that basic values are
upheld, commerce is facilitated, and public order is main-
tained ? Plus, are there sufficient means within the system
for change, reflecting the growth in complexity of a society
or its changing political and/or economic fortunes?
Sociology of Law in Ancient Israel
Lawgivers in western cultures like Greece and Rome
began their work by identifying legal principles that people
took for granted. Then they drafted specific laws to apply
these principles to real-life situations (Gluckman: 227,
354). But there is still little evidence that the lawgivers in
eastern cultures like ancient Israel used a system of general
legal principles that they consistently applied to specific
situations in the great codes from the Books of Exodus, Le-
viticus, Numbers, and Deuteronomy. Laws in the world of
the Bible seldom described typical or average or even ideal
behavior in Israel. In fact, average behavior may often have
been at variance with these legal statements (Pospisil: 30).
In other words, the intent of the author(s) of these codes
may have been to provide an ideological basis for an ideal-
ized Israelite society. J. Blenkinsopp (58) therefore identi-
fies apodictic law (Decalogue) as &dquo;moral norms,&dquo; while he
sees the formulation of case laws as a means of defining &dquo;the
legal consequences of specific actions.&dquo; Without sufficient
extra-biblical textual or artifactual evidence, however, it is
impossible to know for certain what the actual legal principles
of ancient Israel were based on.
What seems most likely is that in pre-exilic Israel the
basis of law was not philosophy, but crisis (Matthews &
Benjamin 1993: 227). In traditional societies where the ma-
jority of the population is housed in small, rural villages and
towns, lawgivers (most likely a group of land owners known
as &dquo;elders&dquo;) would have developed specific laws to deal with
households that weakened or threatened the well-being of
that village or region. And households weakened or threat-
ened the well-being of the village when they failed to work
their own land, feed their own children, or contribute to the
cooperative efforts of the community to interact with other
villages. When a central government was established, this
was extended to include those households who failed to con-
tribute to the king’s ability to collect taxes and raise an army.
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Laws in the Bible show how Israel reacted to a particu-
lar situation or crisis: a famine or the invasion of the land by
a foreign army. They also reveal Israel’s basic assumptions
about human nature, how Israel went about collecting evi-
dence and using it to make legal decisions. And finally, laws
outline how Israel as a state and a society distributed power.
The destruction of the kingdom of Judah by the Baby-
lonians and the Exile brought a dissolution of the monarchy
and its independent status. The social context of law in the
post-exilic and Second Temple period was therefore based
on a synthesis of this earlier legal development and the cul-
tural influences of the Persian and Hellenistic tides that en-
gulfed their area. The transformation of the administrative
apparatus and the emergence of a dominant priestly author-
ity in Palestine at the end of the Exile set a new tone for le-
gal interpretation (Exilic Judaism Period 587-333 BCE).
=
The reaction to many aspects of Hellenization evident in
Sirach (Tcherikover: 143-44; Collins: 29-32) suggests,
moreover, that law and its social context require careful analy-
sis (Hellenistic Period =
333 BCE-64 CE).
Social Setting of Post-Exilic Community
The return from exile created a divided Judean com-
munity. Those who chose to remain within the Persian do-
main in Mesopotamia and Egypt continued their
&dquo;instinctive&dquo; struggle to maintain their social and cultural
identity while in close proximity to a dominant cultural
voice (Cerroni-Long: 28). For those who did return to Pal-
estine, their administration continued to come from Persia,
but their identity as a people was reinforced with (1) the es-
tablishment of a separate political entity, Yehud, (2) the re-
stored priestly community, and (3) their response to
overtures by the Samaritans and other neighboring peoples
to cooperate on economic and religious matters.
These separate forces pulled emergent early Judaism in
two directions: (1) in the Diaspora the Judaic Identity
Movement becomes even more rigid in its adherence to en-
dogamy, dietary laws, and the sanctity of the Torah; (2) in
Palestine, where a priestly community had re-emerged, cul-
tic legislation (Holiness Code) was formulated, but social
restraints on cultural interaction were relaxed-except
during those periods when Diasporic administrators inter-
vened (Nehemiah and Ezra). This latter factor, however,
must be understood within the context of Persian imperial
policy, which had as its primary goal the maintenance of
peace and commercial prosperity within the empire. Local
administrators, while given fairly free reign compared to
Babylonian and Assyrian policy, would still be subject to pe-
9
riodic review as well as charges from other administrators
(see Neh 6:6-7).
Socio,Legal Transformation and Adaptation
It is inconceivable that the post-exilic community
would abandon its legal heritage (as represented by both an-
cient Near Eastern legal traditions and codes as well as the
Covenant Code of Exodus 21-23). Certainly, the social
world of the Diaspora and the return brought monumental
changes to the Judean communities. One sign of these
changes is the development of a Judaic Identity Movement,
which solidified adherence to Torah, monotheism, and eth-
nic exclusivism during the exile (Matthews & Moyer:
212-14) .After 540 BCE, the rigidity of this position re-
mained the norm in the Diasporic settlements. But the pe-
culiar social conditions in which the returned exiles found
themselves (long fallow fields, destroyed towns and villages,
and a demographic imbalance that did not consistently pro-
vide &dquo;suitable&dquo; marriage partners) led to greater legal and
cultural flexibility.
What solidified the gradually evolving legal situation in
Yehud was the imposition of Persian imperial policies,
which were designed to better define subject peoples and
territorial holdings, and the opportunistic efforts of Persian
appointees (Ezra and Nehemiah) to use these policies to aid
their attempt to &dquo;purify&dquo; the nation. In this way, legal pro-
nouncement blended with political expediency and relig-
ious zeal to shape the social context.
For such an ideological change to take place, however,
it was necessary to draw upon previously held traditions or
to create authentic-sounding precedents for social custom.
Thus Ezra and Nehemiah’s insistence on endogamy is rein-
forced by the mandate given to the covenantal community
to keep itself separate from the &dquo;peoples of the land&dquo; (Exod
34;12-16; Deut 7:1-11) and by the custom of the Ances-
tors to marry only within their own social group for the first
two generations (Gen 24:3-4; 28: 1-5). The result is an ac-
ceptance of a custom, irrespective of the possibly fictitious
nature of the precedents drawn from saga, because it is
identified as socially and legally valid (see Japhet: 83-84 for
another example of this type of socio-legal rationale).
Marriage Laws in the Light of Persian Policy
One method developed to trace legal transformation
such as that described above is found in Ken Hoglund’s
study of the &dquo;Achaemenid Context&dquo; (1991, 1992). Hoglund
provides an excellent analysis of the ways in which regional
10
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survey can help establish a clearer picture of the settlement
patterns in post-exilic Yehud. He describes the imperial pol-
icy of &dquo;ruralization,&dquo; which created new settlement patterns
in the first generation after the return from exile. These vil-
lages were situated within the Persian &dquo;domain,&dquo; land taken
by conquest, which was granted to returned exiles and
other &dquo;dependent populations&dquo; as part of Persian imperial
policy. With that concept as the basis for established policy,
no claims of prior ownership would be heard, and an eco-
nomic policy that stressed the flow of natural resources from
rural production areas to the bureaucratic centers of each
satrapy would hold sway (Hoglund 1991: 57-60; 1992:
238-39; Briant). Thus, if the Judean community was
granted access to land only in Palestine, the normal land
claims, boundary disputes, and property transactions that
would ordinarily occupy a court system (as they do in the
Elephantine papyri) would have been quickly settled by the
imperial officials in charge, who would have had access to
royal records on the settlement.
I am intrigued by Hoglund’s explanation of circum-
scribed marriage customs in the light of these Persian ad-
ministrative policies and the subsequent actions taken by
Ezra and Nehemiah. He points to the combination of Per-
sian military policy and &dquo;a radically new interpretation of
Mosaic tradition&dquo; (Neh 10:29) as the basis of these en-
dogamic practices. In this way the &dquo;assembly of the Exile,&dquo;
which he describes as a bureaucratically identifiable unit,
would be preserved and the Persian government would be
satisfied with this ethnic-stabilizing solution (Hoglund
1991: 67-68). While this is certainly a factor in the &dquo;mar-
riage policy,&dquo; it seems likely to me that the themes portrayed
in Ezra and Nehemiah are more concerned with their own
Diasporic concept of Judaic Identity (see Fensham: 124),
which may be based on the Mosaic tradition of a chosen peo-
ple, but was not necessarily based on Persian imperial policy.
The fact that the returned exiles had been engaged in
mixed marriages is more reflective of (1) immigrants who
wish to marry into propertied families and thus gain a
greater hold on territories that they otherwise might not
have possessed, or (2) a community whose demographic
factors (lack of females) required them to accept marriage
arrangements out of necessity (see the fairly common evi-
dence of intermarriage in Elephantine; Porten 1968:
249-50). The first argument is based on &dquo;hypergamy the-
ory&dquo;-that is, the immigrants’ desire to &dquo;marry up&dquo; in order
to more quickly make their community viable and welcome
in the area (see the discussion in Smith-Christopher:
249-50; Mayer). Furthermore, it is possible that some of the
&dquo;foreigners&dquo; involved were actually Israelites who had not
gone into the exile. Thus they could be perceived by the
representatives of the exilic community as nothaving un-
dergone the &dquo;purification&dquo; experienced by the exiles.
Smith-Christopher suggests that Ezra’s marriage crisis
actually may reflect a later time period when &dquo;denomina-
tions&dquo; within Judaism may be the issue and the &dquo;foreigners&dquo;
may be non-normative sects (257). Although that is a possi-
bility, I think it is more likely that Ezra’s attitude (which is
most likely a reflection of a post-exilic priestly attitude) is
based on his perception that the Yehud community was
about to lose its Judaic Identity. Thus to establish a means
of social &dquo;boundary maintenance,&dquo; he issued the decree
against mixed marriages.
Eskenazi speaks to the issue of demographics when she
suggests (190-91) that the community as a whole wished to
demonstrate its willingness to be purified of &dquo;foreign&dquo; influ-
ences. The constancy of ritual and adherence to the rule of
&dquo;The Book,&dquo; advocated by Ezra and Nehemiah, would thus
replace the dangers of social evolution and assimilation that
were manifested, in part, by the mixed marriages and the
concern over the ability to speak Hebrew (Neh 13:23-24),
another &dquo;ingredient of national identity&dquo; (Blenkinsopp:
363). It would also lead to the redefining of proper marriage
partners. Those matches which had been deemed accept-
able previously, because of a lack of females among the re-
turnees or some other demographic factor, would, under
this new social order, be forbidden (Eskenazi & Judd:
274-77; Merton: 361-63).
What I suggest, therefore, is a synthesis approach. I
agree with Hoglund ( 1992:223) that Nehemiah (career bu-
reaucrat) especially would not have been able to satisfy his
personal religious concerns at the expense of his
royal du-
ties. Since they were promulgated by representatives of the
Persian government, the reforms of Ezra and Nehemiah
would necessarily reflect the official policies of the empire.
If it was Persian strategy (1) to use Yehud as a military buffer
against Egyptian or Edomite expansion (signaled by the re-
building of Jerusalem’s walls and its revived status as an ur-
ban center), and (2) to reinforce ethnic identity among
those peoples who had been resettled or had been returned
to former homelands, then royal governors, judges, and
magistrates would have been required to set forth procla-
mations and procedures to get this done (Neh 13 and Ezra
9). What is a bit ironic here is that both the enhanced status
of Jerusalem and the policy of endogamy, which may serve
the purpose of empire, also serve the desires of exclusivist
voices among the Judean community. Ezra and Nehemiah,
adherents of what Morton Smith has called the &dquo;Yahweh
alone party&dquo; (127-28), would be able to use the backing of
Downloaded from http://btb.sagepub.com by on March 24, 2009
the empire to engineer their reforms to purify Palestinian
Judaism and restore it to the model of Judaic Identity that
they advocated.
There is also an ideological aspect to the marriage poli-
cies of Ezra and Nehemiah. It is their intention to create an
identifiable people, composed of individuals who adhere to
a particular set of cultural and religious values. They find
that the best way to do this is through a policy of exclu-
sion-which in turn requires a genealogical foundation to
prove who is actually a member of that community. They
will require members to adhere to and publicly advocate
this policy of purification and cultural identity as the only
true means of gaining God’s support and as the manifesta-
tion of their acceptance of the Covenant.
Evidence that they were not entirely successful in uni-
versalizing this social doctrine can be found in the Book of
Ruth. Although the author(s) has to set the story in the
premonarchic period, it would not be lost on the audience
that it concludes with a genealogy clearly pointing to a
mixed origin for King David (Ruth 4:13-22) . What better
argument could the critics of Ezra and Nehemiah make
than one that demonstrates the value rather than the impu-
rity of mixed marriage?
Evidence from Extra,biblical Texts
One body of extra-biblical texts from the Persian peri-
od that may throw further light on the social character of le-
gal process and development during this time is the
Elephantine papyri. These fifth-century documents from
the Judean military colony on the island of Assuan in Upper
Egypt mention a number of common legal matters, many of
which are reflective of the desire to protect and transfer
property. The fact that they do not make reference to a spe-
cific legal precedent in the biblical law codes suggests that
the codes were not used in that manner (Yaron). The codes
may have simply served as the foundation for legal tradition
or customary action-a basis for social expectation, but not
necessarily to be cited to bolster a case in court. If the social
domain is truly to be considered as an important basis for
the analysis of legal context, then it is necessary to shift
away from western concepts of legal process. Instead of
looking for dispute resolution through strict adherence to a
rigid code, therefore, it becomes necessary to examine the
information supplied in the texts and then make assump-
tions about the social forces involved and the likelihood
that there are factors inherent to this particular community
which determine how a case may be settled or what will ulti-
11
mately be taken as the basis of proof of a claim or as justifica-
tion for a reversal (Rosen: 4-6).
The documents from Elephantine generally deal with
civil matters as the transference of property, the sale
such
and manumission slaves, and marriage contracts. Docu-
of
ments such as these would have been used during court pro-
ceedings when a dispute arose or when there was some
question between neighbors over boundaries or the exact
terms of a sale (Hillers: 354-55). In those instances where
domestic religious matters are mentioned, connections can
be drawn to biblical precedents, although there is evidence
of additions to the rituals, especially with regard to purifica-
tion-a factor that takes on greater social and religious im-
portance in the post-exilic period, both in the Diasporic
communities and in Palestine.
Everyday matters of business and social interaction are
ordered by custom and enforced in court, when necessary,
by the use of receipts, titles, and contracts. Certainly, dispu-
tants could have gone to the Persian governor or his ap-
pointees (just as claimants are said to have come for
judgment to David and/or his appointed judges in 2 Sam
15:2-5). Local judges or a body of &dquo;settlement elders,&dquo; such
as those who were appointed by Babylonian regimes, might
have also served to deal with issues of law at lower levels of
administration (Reviv: 156-59). These authority figures
would have been familiar with local conditions and indi-
viduals, and therefore could have drawn on that knowledge
in addition to royal decrees and official rules of administra-
tion, to decide disputes (Reviv: 160). Thus it can be seen
that legal formation and the use of the law were often de-
pendent upon the personality of the legal authority as well
as the social setting of the community.
The repetitious style used in the Elephantine papyri re-
flects a mutual understanding of legal custom and legal pro-
nouncement, as well as an expectation of adherence to and
enforcement of the law. This includes legal formulas found
previously in Mesopotamian and biblical law and now set in
scribal tradition, at least in abbreviated form, to add author-
ity, if not always clarity, to the documents (Porten 1968:
189). Legal expectation and assurance arises, as we have
noted above, as a result of ideological indoctrination and
consistent administrative practice. If there was a question
regarding either of these in the minds of the disputants, it is
unlikely that they would have bothered with formal docu-
mentation, oath taking (see Cowley: #44.1-4) or reference
to judges and courts.
Oath taking is particularly interesting (see Cowley:
#6), since it follows legal procedures described in both the
biblical text (Exod 2:8, 9, 1 l; 2 Chron 6:22) and in several
12
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of the ancient Near Eastern codes: Sumerian Law 8; Laws of
Eshnunna 23, 38; Hammurabi’s Code 20, 120, 131, 249,
266; Middle Assyrian Laws 25, 47. This suggests a social
and legal acceptance of the long held procedure made nec-
essary when there is a lack of physical evidence that can
prove a case (Van der Toorn: 284). Then the accused can
take an oath before God (i.e., in the Temple or before the
image of a god). The force of that oath protects the accused
from further legal action. This could be effective only in cul-
tures that believed that no human would fraudulently bring
the deity into a contract (oath being considered a contract
between the human and the god).
In the case of EP #6: 11-12, a land dispute is settled
when one party takes an oath to support his claim and his
disputant’s only recourse is to accept the boundaries sworn
to in the oath and have them recorded so that no future liti-
gation could be initiated:
You have sworn to me by Ya’u, and have satisfied my
mind about this land. I shall have no power to institute suit or
process against you, I and my son and my daughter, brother and
sister of mine, relative and stranger, concerning this land....
’
Evidence that these rituals, as well as the documents,
were taken seriously is found in #8.9-11, which makes ref
erence to the previously drawn deed of land when it is given
to a daughter of the owner as part of her dowry. The curios-
ity in this document, however, is the fact that she is allowed
to dispose of the land as she sees fit:
This house and land I give to you for my lifetime and after my
death; you have full rights over it from this day forever, and
your children after you. To whom you wish you may give it.
There is no other son or daughter of mine, brother or sister, or
other woman or man who has rights over this land, except
you and your children forever. f -
This is unusual because females are never given such
explicit control over the land which is part of their dowry in
biblical texts (see Num 27:1-11; Judg 1:11-15). Such a
shift in legal practice may signal a desire on the part of a
family to obtain the best possible marriage (thus a larger
dowry), even if it means a sacrifice of land that has been
held by the bride’s family.
This solution is suggested by the amendment to text
#8 found in Cowley #9. Here, in a document written and
witnessed on the same day as #8, the apparently absolute
right to dispose of the property, which had been vested in
the wife, is modified. The restrictions are conditioned on
(1) the husband’s improving the land, and (2) Mibtahiah’s
ceasing to be the wife of Jezaniah. Should she divorce him,
the property would revert to their children. If he divorced
her (an issue not explicit in the text), he would receive
nothing. She would be able to retain only one-half interest
in the house, while the other half of the house went to him
and the rest of the property she had brought as dowry went
to their children (see Porten 1968: 242-44). Such a shift
from absolute control to a conditional agreement provides
the husband with an incentive to make the required im-
provements on the land and no incentive to divorce her.
There is also little advantage for her to leave him. In every
instance, however, the rights of the children are protected.
All of these stipulations are reflective of a community that
valued the maintenance of marriage, the protection and im-
provement of family lands, and the conviction that family
property rights should not be lost.
B. Porten’sanalysis of the Passover Papyrus (P. 13464)
provides another example of legal augmentation in the Per-
sian Period (1979: 90-92). As he notes, there are admoni-
tions in this letter from Hananiah to Jedaniah and the
military garrison at Elephantine regarding the Passover
celebration, which follow legal statements in Exodus2:6,
Leviticus 23:5, Numbers 2:5, and elsewhere. The depend-
ence on legal and traditional precedent is reminiscent of the
Passover festival recorded in Ezra 6:19-22, as is Ezra’s read-
ing of the law (Neh 8:1-12), which was intended to gain
general, ideological control of the people of Yehud. But the
inclusion of additional purification measures (prohibition of
fermented drink and sealing up of all household leaven) is
suggestive of Nehemiah’s reforms (Porten 1979: 92). If
Hananiah is a representative of Nehemiah’s Jerusalem ad-
ministration or is an emissary sent by the Persian govern-
ment to standardize practice in a Judean enclave, as Ezra
appears to be, then this is a further reflection of imperial policy,
as noted above, with regard to social and religious practice.
Legal procedure and legal statement do not always re-
quire expansion. Reform can come also in the form of com-
pression-as long as the disputants and their judges
understand both the basis for such compression and the
means of interpreting what, on paper, appears to be very
stilted. D. Hillers has demonstrated in his examination of
the Elephantine materials what he terms vestigial remains
of ritual legal performance. He cites the Brooklyn Museum
Aramaic Papyri (Kraeling: #7.3-5) to show how com-
pressed a marriage contract has become from the original,
which must have required a number of legal gestures and
movements to make it official:
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I have come to thy house and asked of thee the woman
Yehoyishma (by name), thy sister, for marriage. And thou
didst give her to me. She is my wife and I am her husband
from this day unto forever. And I have given thee as the mo-
har of thy sister Yehoyishma silver [ 1 karsh] . It has gone in to
thee [and thy heart is satisfied there]with.
His comparison of this text with material from Nuzi
and the Neo-Assyrian texts demonstrates a wide use of
&dquo;performance utterance&dquo; (Austin) and suggests a &dquo;short-
hand&dquo; version emerging as the society moved from preliter-
ate to literate (Hillers: 358-61). This provides a closer tie to
the social background of a culture that, prior to the prolif
eration of written documents, depended upon physical ac-
tion and speech to actualize contractual arrangement.
Conclusions on the Sociology of Law
With these extra-biblical texts in mind, it may also be
possible to seek the social context of law during the Second
Temple Period in the biblical text as well. The influences of
social setting that required the creation of these documents
from Elephantine may well have had the same force on the
author(s) who produced the codified statements in Exodus
21:2-11 (on debt slavery), in Leviticus 18:6-23 (regarding
25:13-16
incest taboos), or in Deuteronomy (with respect
to false measures). In these biblical examples, the need to
ensure due process for the weak and restrict persons from
violating standards of proper sexual and business ethics ap-
parently required the making of a legal statement, which in
turn became a legal pronouncement within a set of laws.
These general pronouncements regarding large legal issues
could then serve as models for actual cases without requir-
ing direct reference to the law codes.
If this is the actual manner in which law was used in an-
cient Israel, then it is not a great stretch io assume that it
continued to be the standard of practice in the post-exilic
period, at least in Palestine immediately after the return
from exile. Considering the fluctuating character of life dur-
ing the period from 550 to 150 BCE, it would not be surpris-
ing if that regenerated culture chose to keep its law at a
more relaxed and less structured level. Such a culture, how-
ever, is susceptible to outside forces. The Persian admini-
stration would have had a say in the maintenance of order
and in the smooth running of the courts. Imperial policy,
which may not take into account local and regional opin-
ion, may have also reshaped legal activity to meet its own,
larger needs. Concerns over defensive posture within dis-
puted regions, maintenance of protocol and recognition of
13
the rights of posted garrisons in conquered territories (as at Gitin, S. 1990. GEZER III: A CERAMIC TYPOLOGY OF THE LATE

Elephantine), and the general sense that people who can be IRON II, PERSIAN, AND HELLENISTIC PERIODS AT TELL
fitted into identifiable groups and patterns are easier to con- Jerusalem, Israel: Hebrew Union College.
GEZER.
trol may have separately or together driven Persian policy. Gluckman, M. 1967. THE JUDICIAL PROCESS AMONG THE
The reforms imposed by Nehemiah and Ezra suggest both BAROTSE OF NORTHERN RHODESIA. Manchester, UK:

imperial meddling and cultural incursion by the advocates University of Manchester Press.
of Diasporic Judaism and its more rigid concept of law and Hillers, D. R. 1990. Rite: Ceremonies of Law and Treaty in the An-
ethnic identity. Their citing of precedents and the creation cient Near East. Pp. 351-64 in RELIGION AND LAW;
of new legal policies through the interpretation of canon- BIBLICAL-JUDAIC AND ISLAMIC PERSPECTIVES, edited by
ized law codes will again be taken up in the rabbinic period, E. B. Firmage, et al. Winona Lake, IN: Eisenbrauns.
but that age represents yet another great upheaval when Hoebel, D. R. 1974. THE LAW OF PRIMITIVE MAN. New York, NY:
stability was believed to come only through greater and Athenaeum.
greater social and legal structure. Hoglund, K. 1992. Achaemenid Imperial Administration in Syria-
Palestine and the Missions of Ezra and Nehemiah. SBLDS 125;
Works Cited Atlanta, GA: Scholars Press.
Austin, J. L. 1962. HOW TO DO THINGS WITH WORDS. 2nd ed. 1991. The Achaemenid Context. PP. 54-72 in SECOND TEMPLE
Cambridge, MA: Harvard
University Press. STUDIES, 1: PERSIAN PERIOD, edited by P. Davies. Sheffield,
Black, D. N. 1989. SOCIOLOGICAL JUSTICE. New York, NY: Ox- UK: JSOT Press.
ford University Press. Japhet, S. 1992. The Israelite Legal and Social Reality as Reflected in
Chronicles: A Case Study. Pp. 79-91 in SHA’AREI TALMON,
Blenkinsopp, J. 1997. The Family in First Temple Israel. Pp. 48-103
in FAMILIES IN ANCIENT ISRAEL, edited by L. J. Perdue, et
edited by M. Fishbane, et al. Winona Lake, IN: Eisen-
brauns.
al. Louisville, KY: Westminster/John Knox Press.
1988. EZRA-NEHEMIAH: A COMMENTARY. Philadelphia, PA: Kerruish, V. 1991. JURISPRUDENCE AS IDEOLOGY. New York, NY:
Westminster Press. Routledge.
Klare, K. 1979. Law-Making as Praxis. TELOS 40: 123-35.
Briant, P. 1975. Villages et communautés villageoises d’Asie achemen-
ide et hellenistique. JESHO 18: 165-88. Kraeling, E. G., ed. 1953. THE BROOKLYN MUSEUM ARAMAIC PA-
PYRI : NEW DOCUMENTS OF THE FIFTH CENTURY B.C. FROM
Cerroni-Long, E. L. 1984. Marrying Out: Socio-Cultural and Psy-
THE JEWISH COLONY AT ELEPHANTINE. New Haven, CT:
chological Implications of Intermarriage. JOURNAL OF COM- Yale University Press.
PARATIVE FAMILY STUDIES 15/1: 25-46.
Luhmann, N. 1985. A SOCIOLOGICAL THEORY OF LAW. Boston,
Collins, J. J. 1997. JEWISH WISDOM IN THE HELLENISTIC AGE.
& Paul.
MA: Routledge Kegan
Louisville, KY: Westminster/John Knox Press.
Malinowski, B. 1976. CRIME AND CUSTOM IN SAVAGE SOCIETY.
Cowley, A. 1923. ARAMAIC PAPYRI OF THE FIFTH CENTURY B.C. Totowa, NJ: Littlefield, Adams, & Co.
Oxford, UK: Clarendon Press. Marcuse, H. 1962. EROS AND CIVILIZATION. New York, NY: Vin-
Davies, P. R. 1994. The Society of Biblical Israel. Pp. 22-33 in SEC- tage Books.
OND TEMPLE STUDIES, 2: TEMPLE COMMUNITY IN THE PER- D. C. 1993. THE SOCIAL WORLD
Matthews, V. H., & Benjamin,
SIAN PERIOD, edited by T. C. Eskenaszi & K. H. Richards. OF ANCIENT ISRAEL, 1250-587 BCE. Peabody, MA: Hen-
Sheffield, UK: JSOT Press. drickson Publishers.
Eskenazsi, T. C. 1988. IN AN AGE OF PROSE: A LITERARY AP-
Matthews, V. H. & J. C. Moyer. 1997. THE OLD TESTAMENT:
PROACH TO EZRA-NEHEMIAH. Atlanta, GA: Scholars TEXT AND CONTEXT. Peabody, MA: Hendrickson Publish-
Press. ers.

Eskenaszi, T. C., & E. P. Judd. 1944. Marriage to a Stranger in Ezra Mayer, J. 1961. Jewish-Gentile Intermarriage Patterns: A Hypothesis.
9-10. Pp. 266-85 in SECOND TEMPLE STUDIES, 2: TEMPLE SOCIOLOGY AND SOCIAL RESEARCH 45/2: 188-95.
COMMUNITY IN THE PERSIAN PERIOD, edited by T. C. Merton, R. K. 1941. Intermarriage and the Social Structure. PSY-
Eskenaszi & K. H. Richards. Sheffield, UK: JSOT Press. CHIATRY 4:361-74.
Fensham, F. C. 1982. THE BOOKS OF EZRA AND NEHEMIAH. Milovanovic, D. 1994. A PRIMER IN THE SOCIOLOGY OF LAW, 2nd
Grand Rapids, MI: B. Eerdmans
Publishing Co. ed. New York: Harrow & Heston.
Gibbs, J. 1967. Definitions of Law and Empirical Questions. LAW 1987. The Political Economy of "Liberty" and "Property" Inter-
AND SOCIETY REVIEW 11: 429-46. ests. LEGAL STUDIES FORUM 11:267-93.

14
Downloaded from http://btb.sagepub.com by on March 24, 2009
Porten, B. 1979. Aramaic Papyri and Parchments: A New Look.
42/2: 74-104.
1968. ARCHIVES FROM ELEPHANTINE: THE LIFE OF AN AN-
CIENT JEWISH MILITARY COLONY. Berkeley, CA: Univer-
sity of California Press.
Pospisil, L. 1974. The Anthropology of Law: A Comparative The-
ory. New Haven, CT: HRAF Press.
Reviv, H. 1989. THE ELDERS IN ANCIENT ISRAEL. Jerusalem, Is-
rael : Magnes.
Rosen L., 1989. THE ANTHROPOLOGY OF JUSTICE: LAW AS CUL-
TURE IN ISLAMIC SOCIETY. Cambridge, UK: Cambridge
University Press.
Smith-Christopher, D. L. 1994. The Mixed Marriage Crisis in Ezra
9-10 and Nehemiah 13: A Study of the Sociology of the Post-
Exilic Judean Community. Pp. 243-65 in SECOND TEMPLE
STUDIES, 2, edited by T. C. Eshkenaszi & K. Richards. At-
lanta, GA: Scholars Press.
Smith, M. 1971. PALESTINIAN PARTIES AND POLITICS THAT
SHAPED THE OLD TESTAMENT. New York, NY: Columbia
University Press.
Stern, E. 1992. The Phoenician Architectural Elements in Palestine
during the Iron Age and the Persian Period. Pp. 302-09 in THE
Downloaded from http://btb.sagepub.com by on March 24, 2009
BA ARCHITECTURE OF ANCIENT ISRAEL: FROM THE PREHIS-
TORIC TO THE PERSIAN PERIODS, edited by A. Kempinski
& R. Reich. Jerusalem, Israel: Israel Exploration Society.
1982. MATERIAL CULTURE OF THE LAND OF THE BIBLE IN
THE PERSIAN PERIOD 538-332 BC. Warminster, PA: Aris &
Phillips.
Tcherikover, MATERIAL CULTURE OF THE LAND OF THE BIBLE IN
THE PERSIAN PERIOD 538-332 BC.V. 1959. Hellenistic Civi-
lization and the Jews. New York, NY: Jewish Publication
Society.
Trubek, D. 1977. Complexity and Contradiction in the Legal Order:
Balbus and the Challenge of Critical Social Thought about
Law. LAW AND SOCIETY REVIEW 11:529-69.
Tushnet, M. 1977. Perspectives on the Development of American
Law: A Critical Review of Friedman’s "A History of American
Law." WISCONSIN LAW REVIEW 1:81-109.
Van der Toorn, K. 1986. Herrem-Bethel and Elephantine Oath Pro-
cedure. ZAW 98: 282-85.
Weber, M. 1978. ECONOMY AND SOCIETY. Los Angeles, CA:
University of California Press.
Yaron, R. 1961. INTRODUCTION TO THE LAW OF THE ARAMAIC
PAPYRI. Oxford, UK: Clarendon Press.
15