Law and Narrative

The paper relates the redaction history of Josh 9 with the development of legal concepts in Deuteronomy and beyond. It shows that the earliest version of the text provided an impartial portrayal of a peace treaty between Gibeon and Israel, which prepared for the events recounted in Josh 10. After the emergence of the law of ḥērem (Deut 20,15–18), this original version of Josh 9 implied an open contradiction to Deuteronomy's warfare legislation. As a result, a first Deuteronomistic editor (D 1) introduced the idea that the Gibeonites had tricked the Israelites into making a covenant and thus saved their lives with deceit. At this stage of the literary development, the prohibition of making a covenant with the inhabitants of the land (e.g. Deut 7,2) was not in view yet. Compared to the ḥērem, the respective prohibition represents a later stage in the development of the legal material (perhaps triggered by the D 1 version of Josh 9). It is only reflected in a second Deuteronomistic layer (D 2) of the chapter, which should afterwards receive one more major editorial reworking by a priestly hand.

This paper compares the genre of legal code across four different ancient cultures with an eye towards identifying both the inherent poetics of a code and the processes through which readers narrativize codes in order to give them context and meaning.

זוהי עבודת דוקטור שבוחנת את יחסי החוק והסיפור במקרא בעיני חז"ל. העבודה מציגה שלשה מודלים של יחסי חוק וסיפור - א. אין קשר בין אחד לשני. אי אפשר לפרש את הסיפור לפי החוק וממילא גם אי אפשר ללמוד חוקים מסיפורים. ב. יש התאמה בין החוק לסיפור, ולכן אפשר לפעמים ללמוד את החוק מתוך הסיפור. ג. יש זהות מוחלטת בין החוק לסיפור ולכן יש לפרש כל מרכיב בסיפור כחוקי וממילא אפשר ללמוד חוקים חדשים מהסיפורי.

Theoretical considerations about law and narrative and their combination in biblical literature lead to a brief overview of biblical texts, prophetic and historiographical, advancing law (broadly construed), then to an analysis of four Priestly stories about the generation of new law, Lev 24:10-23 (about cursing the deity), Num 9:1-14 (about the secondary date for performing the Pesah), Num 15:32-36 (about Sabbath observance), and Num 27:1-11 (about inheritance by women), with implications for understanding the Priestly history.

Although phrased in semi-legal apodictic style, the Decalogue is not a legal code per se but more of a covenant document, which defines the borders of affiliation between the Israelite people and their God. The following discussion highlights the significance and uniqueness of the Decalogue, surveys the different methodological approaches to its study, and focuses on but two major angles within the broad study of the Decalogue, the theological and ideological scope of the first five commandments, and the place the Decalogue captures within the biblical corpus from the very first stages of the history of its reception.

This monograph demonstrates that the book of Genesis is a result of highly creative, hypertextual reworking of the book of Deuteronomy. This detailed reworking consists of around 1,000 strictly sequentially organized conceptual, and at times also linguistic correspondences between Genesis and Deuteronomy. The strictly sequential, hypertextual dependence on Deuteronomy explains numerous surprising features of Genesis. The critical analysis of Genesis as a coherently composed hypertextual work disproves hypotheses of the existence in this writing of Priestly and non-Priestly materials or multiple literary layers.

Lecture at the Harvard Law School Mishnah conference Jan. 11, 2021.
My talk begins at 10:35.
https://harvard.zoom.us/rec/play/saCsYw5Ror9jL9x9hxLGFU9JGHFQ8_oaJ4DotNCRPEgcJVN5m5X_VaXJjtRX4XDpsfBeCoFoY-PRUcvC.TD6QqaCRFZfa1Z8l?startTime=1610381987000&_x_zm_rtaid=OD_uQO_7RqOmmvQVmsnp-A.1617213630693.42c3460e6f9c7ea78fc76a831a7a28f5&_x_zm_rhtaid=584

Si bien el diálogo entre el derecho y la literatura puede parecer una pareja por lo menos extraña dentro de la explosión de estudios interdisciplinarios que tuvo lugar avanzada la segunda mitad del siglo xx, ambas disciplinas parecieron encontrarse en un marco institucional rastreable hacia la década de 1970 en la academia jurídica angloamericana. Ese marco institucional llevó el nombre de “movimiento derecho y literatura” y tuvo como objeto reflexionar sobre las relaciones entre ambos términos. Este trabajo presenta un repaso de la trayectoria del movimiento “derecho y literatura”, sus distintas variantes, autores e instituciones clave. Ofrece una periodización del trabajo realizado a lo largo de los últimos casi cuarenta años hasta desembocar en el campo incipiente de la “literatura y los derechos humanos”, y revisa la expansión del movimiento a través de las fronteras nacionales.

This paper deals with both methodological and literary aspects in investigating the relationship between law and narrative. Characterization of the categories of legal paradigm, illustrative narrative and legal midrash inform and control the discussion of the relationship between the complex narrative in Josh 7:1-8:29 and the Deuteromic/istic legal material, such as Deut 7:25:26, 13:16-18, 20:10-18, 21:22-23.

This monograph demonstrates that the books of Exodus–Numbers, taken together, are the result of one, highly creative, hypertextual reworking of the book of Deuteronomy. This detailed reworking consists of around 1,200 strictly sequentially organized conceptual, and at times also linguistic correspondences between Exodus–Numbers and Deuteronomy. The strictly sequential, hypertextual dependence on Deuteronomy explains numerous surprising features of Exodus–Numbers. The critical analysis of Exodus–Numbers as a coherently composed hypertextual work disproves hypotheses of the existence in these writings of Priestly and non-Priestly materials or multiple literary layers.

In its overall literary construction, Deuteronomy has turned a syntactic form—the “if/when . . .” form of casuistic laws and vassal treaties—into its main narrative dynamics. It has combined the mini-plots of the case-laws (“if a man . . .” / “when you . . .”) with the overarching plot of the people’s loyalty (“if you listen to the commandments . . .”) and with the macro-plot of the divine promise (“when Yhwh your God brings you into the land . . .”) in order to create a general suspenseful momentum that leads to the memorable dénouement of Deut 34:9: “The sons of Israel listened . . . and did just as Yhwh had commanded Moses”.

This monograph demonstrates that the book of Deuteronomy is a result of highly creative, hypertextual reworking of the book of Ezekiel. Likewise, it shows that the books of Joshua–Judges, taken together, are a result of one, highly creative, hypertextual reworking of the book of Deuteronomy. In both cases, the detailed reworking consists of almost 700 strictly sequentially organized conceptual, and at times also linguistic correspondences. The strictly sequential, hypertextual dependence on the earlier works explains numerous surprising features of Deuteronomy and Joshua–Judges. This critical analysis of Deuteronomy and Joshua–Judges sheds entirely new light on the question of the origin of the Pentateuch and the whole Israelite Heptateuch Genesis–Judges.

"Few of the countless real-life stories of workplace discrimination suffered by men and women every day are ever told publicly. This book boldly and eloquently rights that wrong, going where no plaintiff testimony could ever dare because these stories are often too raw, honest, ambiguous, and nuanced to be told in court or reported in a newspaper." from the Foreword Telling Stories out of Court reaches readers on both an intellectual and an emotional level, helping them to think about, feel, and share the experiences of women who have faced sexism and discrimination at work. It focuses on how the federal courts interpreted Title VII of the Civil Rights Act of 1964. Offering insights that law texts alone cannot, the short stories collected here all but two written for this volume help readers concentrate on the emotional content of the experience with less emphasis on the particulars of the law. Grouped into thematic parts titled "In Their Proper Place," "Unfair Treatment," "Sexual Harassment," and "Hidden Obstacles," the narratives are combined with interpretive commentary and legal analysis that anchor the book by revealing the impact this revolutionary law had on women in the workplace.At the same time, the stories succeed on their own terms as compelling works of fiction, from "LaKeesha's Job Interview," in which a woman's ambition to move from welfare to work faces an ironic obstacle, to "Plato, Again," in which a woman undergoing treatment for cancer finds her career crumble under her, to "Vacation Days," which takes the reader inside the daily routine of a nanny who works at the whim of her employer."

Drawing off of the writings of Rabbi Jonathan Sacks and Professor Martha C. Nussbaum, I discuss in short the humanistic and religious benefits of cultivating a literary imagination, and the need for developing empathy to help meet the ongoing leadership challenges of our time.

This is a work in the rhetoric of law. As such, it has affinities with both history and literary criticism. L. H. LaRue, a professor of law at Washington and Lee University, assumes that "judicial opinions contain fictions and that these fictions make the opinions persuasive"

One of the more enduring legacies of 1Maccabees within the study of the book itself, the Hasmoneans, and more broadly in studies of Halakah, is the apparent claim that Mattathias, patriarch of the Maccabees, initiated the interpretation of the Sabbath ordinance allowing for defensive war on the seventh day.  This claim has been investigated by numerous scholars, some trying to prove the impracticability of the ostensible status quo ante,  while others try to confirm the traditional reading of the text as historically reliable.  This discussion is seemingly interminable, and fraught with difficulties. Discussions of the history of Judean interpretation of this custom necessitate knowledge of availability and status of the texts through which it is transmitted to us that is simply unavailable in sufficient  breadth and diversity to make solid conclusions. While it may be possible to prove that a specific text, or more broadly, a given community betrays a willingness to fight on the sabbath, it is often difficult to know whether this decision is based on texts at all, let alone which texts, and whether they were authoritative.  Further, even in the cases where this is a possibility, as many would argue for 1Maccabees, we have little way of showing how much diversity of opinion existed on the issue of interpretation among contemporary Judeans.  It would seem very likely, that even based only on interpretation of the general place of sabbath among Judeans in various literary texts and papyri, multiple attitudes existed.  Because of these difficulties, and others stemming from them, this paper will largely ignore the interesting question of the historicity of Mattathias' decision. Instead, our focus will be on the more narrowly focus issue of whether and how 1Maccabees, and later Josephus, present this as a lasting legal innovation. More succinctly: Why is it that this narrative in 1Maccabees 2 becomes law for at least one reader?

This paper deals with uses of exemplars and exempla to transmit religious law in rabbinic literature. After a general survey of the place of narrative in rabbinic legal literature, I explore the interpretive difficulties involved in deriving law from accounts of the deeds of great rabbis. The main section of the paper presents a reading of what we might call a meta-exemplum, a Talmudic narrative that not only records the opposing behaviors of two rabbis but also illustrates the difficulties involved in the transmission of law through exemplary actions. This text demonstrates that the rabbis were self-conscious about the ambiguity of this mode of transmission and of the potential for misinterpretation on the part of students. This very rabbinic self-consciousness is recommended by the text as the best way to ensure that one's deeds are properly understood. In the final section I discuss another set of Talmudic narratives that illustrate how this institution of self-conscious exemplar, if taken to an extreme, can have Orwellian implications for rabbis, placing them under constant and dehumanizing scrutiny from their students. Classical rabbinic literature is one of the few major Western legal corpora in which exempla, narratives about the day-today practices and deeds of great legal scholars, are given the force of precedent. This inclusion of exempla raises the status of these sages from mere interpreters and adju-dicators of the law to actual embodiments of the law, individuals whose very actions inevitably bear witness to the proper course of behavior as defined by the halakhah (the system of rabbinic law). In this article I will 4 4 6

Homicide in the Biblical World analyzes the treatment of homicide in the Hebrew Bible and demonstrates that it is directly linked to the unique social structure and religion
of ancient Israel. Close parallels between biblical law and ancient Near Eastern law are evident in the laws of the ox that gored and the pregnant woman who was assaulted, but when the total picture of the process by which homicide was adjudicated comes into view, what is most noticeable is how little of it is similar to ancient Near Eastern law. This book reconstructs biblical law from both legal and narrative
texts and analyzes both law collections and documents from actual legal cases from the ancient Near East.

I argue the Covenant Collection's apodictic laws reflect influence from both the Laws of Hammurabi as well a concern to assert indigenous Syro-Palestinian legal norms, a process Homi Bhabha calls “hybridity.” Since laws about debt-slavery and protection of the poor frame the Covenant Collection, poverty functions as its primary theme. Moreover, this stresses the Covenant Collection's political theology, where Yahweh replaces the human sovereign, in this case Hammurabi. Insuring justice and protection of the poor are no longer the purview of the monarch, but now the collective responsibility of free Israelite men who act on behalf of Yahweh. Although the Covenant Collection mimics Mesopotamian political theology by using Laws of Hammurabi, the Covenant Collection subverts the norms of the Laws of Hammurabi through fealty to a divine sovereign and emphasizes collective responsibility, norms absent in the Laws of Hammurabi. As a reimagining of Israel’s past, the Elohistic Strand uses law and narrative to critique the 8th century B.C.E. present through the use of law as an alternative vision.

To download, please go to  https://ssrn.com/abstract=3302988
This short talk focuses on three aspects of Robert Cover's brand of legal pluralism: First, Cover’s account of legal pluralism went beyond the simple recognition of non-state legal orders; just as important for him was the claim that non-state communities could generate and defend distinct readings of the state’s own legal order. Second, Cover's jurisprudence assigned a central role to state violence and non-state communities' resistance. Violence and resistance were vital to his account not only because they are the way of the world but because they help render legal pluralism real. Third, Cover's well-known focus on the narrative dimension of the law was intertwined with his famous image of the law as a bridge between the present world and the ideal. Both the real and the ideal are narratives – stories – and that law is, in a sense, the feat of engineering that connects these two separated narratives.

This article grounds contemporary contestations over the International Criminal Court (ICC) in the constitutive moment of the 1990s, when the Court was a global idea that took shape around a set of key concepts and related understandings of world order. It studies the positions communicated by 129 states during the negotiations of ICC establishment, applying Robert Cover’s narrative law and its pluralist notion of legal meaning to a systematic content analysis. Contrary to the founding ‘epic’ of ICC creation, which centres on the Like-Minded Group and its Others, the analysis identifies two competing and fairly coherent visions for the ICC: A compulsory and a consensual vision. Both aim to build an effective and independent Court, but understand these terms differently and consequently envisage different ICC regimes. The consensual vision has rarely been analysed, but is typically portrayed as the scattered ideas of an undecided majority. Given the Court’s profound lack of universality, however, it is useful to revisit the ideas that animated a large share of international society.

Excerpt] Few of the countless real-life stories of workplace discrimination suffered by men and women everyday are ever told publicly. This book boldly and eloquently rights that wrong, going where no plaintiff testimony could ever dare because these stories are often too raw, honest, ambiguous, and nuanced to be told in court or reported in a newspaper. Consider a high school girl's genuine passion for her much older boss, for example, or a middle-class black woman's ambivalence about hiring a younger black woman coming off of welfare—just a couple of the riveting situations portrayed in this book. Most real-life stories, of course, are also too complex to be fully rendered in a court case or human resource department memo. Fiction is less instrumental than nonfiction. Sometimes, because it does not have to persuade, outrage, or inspire a remedy—though it can do any of those things—fiction can afford to be more truthful. In the past, authors such as David Mamet, purportedly...

This article examines the dynamics between the halakhic and aggadic components of a sugya, in the Babylonian Talmud, in which the halakhic discussion of the Yom Kippur afflictions, listed in the mYoma 8:1 is, followed by a seemingly unrelated aggadic passage that focuses primarily on the manna in the wilderness. However, a close reading of the aggadic passage reveals that it contains substantive links to the preceding halakhic discussion. Moreover, when the aggadic passage is read in the context of the preceding halakhic discussion, it provides an alternative understanding of the Yom Kippur afflictions, which challenges the understanding that arises from the halakhic discussion. Nevertheless, a close look at the redaction of the sugya  shows that the alternative understanding that arises from the aggadic part remains on either the conceptual plane or the supererogatory one, and does not cross over to the normative plane.

The Deuteronomic laws of war (Deut 20) are proclaimed—though ostensibly as a repetition—after Israel fought its first wars in the eastern parts of its future land. After short reflections on Deut 20 in its Hexateuchal context, this paper tries to illuminate the complex and multifaceted interplay between these legislations and their narrative counterparts in the so-called “Deuteronomistic History”. The results will shed light on the formation of DtrH and, more importantly, its relationship to the likewise developing book of Deuteronomy.

(Published as Deuteronomic War Prescriptions and Deuteronomistic Wars. In: The Reception of Biblical War Legislation in Narrative Contexts, ed. by Christoph Berner; Harald Samuel. BZAW 460. Berlin; Boston 2015, pp. 139–154.)