Tanakh and Literature of the Ancient Near East (1)

a.            Background

Starting in the mid-19^th century, scholars began studying the Ancient Near East – the cultural, social, and religious world within which the personalities of the Tanakh were active. It gradually became apparent that the nations of this region, who lived hundreds of years prior to the giving of the Torah at Sinai, followed well-organized and clearly defined systems of law, and also created literary works expressing their religious world-views. Inter alia, certain similarities were discovered between the laws of the Torah and other legal systems among the nations of the Ancient Near East.[1] In addition, works were discovered with numerous parallels to the stories of Creation in the first part of Sefer Bereishit (chapters 1-11), especially the Enûma Eliš - the Babylonian story of creation, and the Epic of Gilgamesh, which shows striking similarities with the story of the Flood and Noach's Ark.[2]

These discoveries produced two opposite reactions: at first, many people viewed these data as confirmation of the validity of the biblical account, and as a blow to Wellhausen's theory,[3] for it was now clear that the narratives of the Tanakh were written against this real background and were not a later development.[4] Thus, for example, Simon Bernfeld, a well-known German Jewish publicist, asserted in 1907 that the discoveries from Assyria and Babylon had brought about

"the collapse of the biblical criticism that had been adhered to by Jewish and gentile critics alike, all of whom had expressed the same idea – that the narratives of the Torah were written at a much later date, and had been composed for a specific purpose. We now know that the stories of the Torah are altogether genuine historical documents from a very ancient period."[5]

Similar conclusions were expressed by many at the end of the 19^th century.

At the same time, an opposing trend developed. Its most prominent spokesman was Friedrich Delitzsch, a German Assyriologist who argued that the strong similarity between Babylonian culture and the Tanakh proved that a large portion of the biblical narratives were in fact borrowed from Babylonian sources; he also maintained that Babylonian culture occupied a higher spiritual and moral level than the Torah.[6] In a series of lectures that Delitzsche delivered between 1902-1904, he ignited the "Babel and Bible" debate, in the wake of his book Babel und Bibel. He argued that even elements that had seemed unique to the Torah, such as Shabbat, had their source in Babylonian culture. This aroused extensive public debate, which included no small measure of blatant anti-Semitism expressed by Delitzsch himself.

Although the "Babel and Bible" debate receded long ago, the essence of the question continues to occupy contemporary scholars. In this chapter we will address three central perspectives on the relationship between the Tanakh and the literature of the Ancient Near East: first, the relationship between the commandments of the Torah and the laws of the Ancient Near Eastern peoples; second, a comparison of the stories in Bereishit and the parallel narratives; and third, the issue of Shabbat and whether it indeed appeared in Mesopotamian culture before it was set forth in the Torah.

b.            The Torah and legal systems of the Ancient Near East

Among the ancient codes of law, the best known is the Code of Hammurabi, discovered in 1901. It displays many parallels to the laws of the Torah. This legal system, dating to the 18^th century B.C.E. (the period of the forefathers, according to the prevalent view), includes 282 laws pertaining to all areas of life and setting forth social, legal, and punitive procedures. Inter alia, there are laws concerning theft, slaves, pledges, adultery, divorce, damages caused by an ox, and inheritance. The following table shows some of the parallels between the Code of Hammurabi and the commandments of the Torah:

The Laws of Eshnunna likewise feature parallels to the laws of the Torah. For example, concerning an ox that kills another ox belonging to someone else, we find:

"If one ox gores a(nother) ox and causes its death, both ox owners shall divide (between them) the price (realized from the sale) of the live ox and the value of the dead ox." (section 53)

This is strongly reminiscent of the Torah law in this regard:

"If one man's ox hurt his neighbor's ox, and it dies, then they shall sell the live ox, and divide the price of it, and they shall also divide (the value of) the dead (ox)." (Shemot 21:35)

It should be noted that copies of the Code of Hammurabi have been found throughout the Ancient Near East, including in the Land of Israel. The discovery of these and other sets of laws gave rise to the claim that the laws of the Torah were in fact based on these other laws – seemingly offering support for the view that the Torah laws are of human origin, having been influenced by external Babylonian sources.

What are we to make of the connections between these codes of law and the commandments of the Torah?

First, it is important to note that the existence of systems of law that preceded the Torah is a fact that the Torah itself mentions explicitly. In his speech at the beginning of Sefer Devarim, Moshe tells Bnei Yisrael:

"And what nation is there so great, that has statutes and judgments so righteous as all this Torah, which I set before you today?" (Devarim 4:8)

Moshe notes the superiority of the laws of the Torah which are more "righteous" than those of the other nations. This verse would be meaningless if it were not understood that other nations had other sets of laws.[8]

Laws have accompanied mankind since its earliest stages. A reading of Sefer Bereishit reveals an entire infrastructure of laws pertaining to all areas of life. The story of Yehuda and Tamar tells us that the accepted procedure was that a woman whose husband had died, leaving no children, could not marry someone else without conducting some form of 'yibum' (levirate marriage) – a duty falling first and foremost to the brothers of the deceased, and even to their father. What is the source of this custom? Ramban (Bereishit 38:8) asserts:

"The ancient sages, prior to the Torah, knew that there is great benefit in levirate marriage by the brother, and it is proper that he be the first to uphold it, and [only] after him [i.e., if he is unable to marry the widow] then the next closest family member, for any close blood relative from his family who inherits his portion, will bring benefit. So it was customary to marry the widow of the deceased brother to the brother, or the father, or the next closest relative."[9]

What Ramban says accords with what we know from the laws of the Ancient Near East, which set forth explicitly the possibility of yibum, including a situation involving the father of the deceased.[10]  The same applies in many other contexts: from the story of Avraham's purchase of the field containing the Cave of the Patriarchs we learn of the accepted procedures for acquisition of land;[11] the struggle between Yaakov and Esav indicates the existence of the concept of a "birthright" as a legal status entailing more than just the chronological order of birth;[12] and so on. More generally, Ramban writes that the legal system in its entirety is one of the seven Noahide Laws:

"In my view, the dinim (laws) requirement that is incumbent upon the gentiles, as one of their seven commandments, entails more than just the appointment of judges in each and every place. [God] commands them concerning the laws of theft, deception, oppression, and paying wages, and the laws pertaining to guardians, coercion and temptation, and the categories of damages, and injury to others, and the laws of lending and borrowing, and the laws of buying and selling, and the like, in a similar manner to the laws which Israel is commanded to observe…." (Ramban on Bereishit 34:13).

Moreover, the formulation of some of the commandments of the Torah indicates that these laws are based on previous knowledge assumed to be familiar to those receiving the Torah. The Torah is not formulated as a book that builds an entire system of laws and judgments from the very foundations up; rather, it is a book that adds layers onto an existing basis that does not require further elaboration. Thus, for example, the Torah does not describe how the institution of marriage between man and woman comes into being. All that Moshe says in this context, in his lengthy "speech of the commandments" in Sefer Devarim, appears – paradoxically enough – within the framework of the procedure for divorce:

"If a man takes a wife and has relations with her, and it comes to pass that she does not find favor in his eyes, for he has found some unseemliness in her, then he shall write her a bill of divorce, and place it in her hand, and send her out of his house. And when she has left his house, she may go and become [the wife] of another. And if the latter man hates her and writes her a bill of divorce, and places it in her hand, and sends her out of his house – or if the latter husband, who took her to be his wife, dies – then her former husband, who sent her away, cannot take her again to be his wife, after she has been defiled, for that is an abomination before God, and you shall not cause the land which the Lord your God gives you for an inheritance, to be sinful." (Devarim 24:1-4)

It is clear, then, that the Torah assumes its audience is familiar with the concept of a man marrying a woman – since the institution of marriage had existed for hundreds of years prior to the giving of the Torah. In fact, a close look at these verses indicates that the Torah is not even introducing the idea of divorce, since this, too, would appear to have existed previously.[13] All that the Torah comes to introduce here is the prohibition on taking back a wife whom one has divorced, after she has been married to someone else.[14]

Similarly, the Torah does not state directly that a firstborn son receives a double-portion of his father's inheritance. This fact is deduced incidentally from the unit concerning the firstborn, which comes to teach a different law:

"If a man has two wives, one beloved and the other hated, and they have born him children – [both] the beloved and the hated – and the firstborn son is [born] of the hated [wife], then it shall be, when he bequeaths to his sons that which he has, he cannot give preference to the son of the beloved [wife] over the son of the hated [wife], who is the firstborn. Rather, he shall acknowledge the son of the hated [wife], giving him a double portion of all that he has, for he is the beginning of his strength; the birthright is his." (Devarim 21:15-17)

The entire discussion about the inheritance of the firstborn occurs within the framework of a specific reality in which the firstborn son is born to an unfavored wife. The Torah's demand is that even in such a situation, the status of the "birthright" must be reserved for the son of the unfavored wife, since "the birthright is his." This expression shows that the practice in this regard is fixed and well-known; there is no need to spell it out. The only innovation in the Torah law here is that the practice applies even in the unusual situation set forth in the text.[15]

(To be continued)

Translated by Kaeren Fish