1 E.g., Schwienhorst-Schönberger, L., Das Bundesbuch (Ex. 20, 22–23, 33). Studien zu seiner Entstehung und Theologie (Berlin, de Gruyter, 1990, BZAW, 188) 53Google Scholar; see further infra, n. 20.

2 For the view that this paragraph refers (impliedly, only) to temporary incapacities, see Alt, A., “The Origins of Israelite Law”, in Essays on Old Testament History and Religion (Oxford, Blackwell, 1966; reprinted Sheffield, JSOT Press, 1989) 104Google Scholar; Sarna, N.M., The JPS Torah Commentary. Exodus (Philadelphia and New York, The Jewish Publication Society, 1991) 123Google Scholar: “This text is curiously silent on the law governing the infliction of permanent injury”; Schenker, A., “Die Analyse der Intentionalität im Bundesbuch (Ex. 21–23)”, Zeitschrift für Altorientalische und Biblische Rechtsgeschichte IV (1998) 214 n. 13.Google Scholar For earlier literature see Jackson, B.S., Essays in Jewish and Comparative Legal History (Leiden, E.J. Brill, 1975) 93 n. 109.Google Scholar

3 Cf. Houtman, C., Das Bundesbuch. Ein Kommentar (Leiden, E.J. Brill, 1997) 148Google Scholar, who rightly takes it to be implied that the assailant remains permanently liable for idleness and healing in these circumstances.

4 This is the position taken by Schwienhorst-Schönberger, supra n. 1, at 55f., and Houtman, supra n. 3, at 146f. Schwienhorst-Schönberger cites Deut. 24:5 and 1 Kings 15:22 for naki as referring to other liabilities: once the victim goes out on his staff there is no liability either for any subsequent death (ifit happens) or any further “civil” liability for idleness or healing. The remedies in the latter part of v. 19 are thus restricted to the time before the victim arises from his sick bed. But this is very unlikely. The victim may well be unable to work, even though he can stagger round on a stick. There is no reason to limit liability in this way. The reasons for the temporal limitation on causation for homicide hardly apply here: if the assailant was responsible for the original “idleness”, there is no reason why he should not continue to be responsible until such time as the victim can actually resume work. Cf. Hittite Laws § 10 (in Roth, M., Law Collections from Mesopotamia and Asia Minor (Atlanta, Scholars Press, 1995) 218)Google Scholar: “If anyone injures a person and temporarily incapacitates him, he shall provide medical care for him. In his place he shall provide a person to work on his estate until he recovers…”.

5 A question which, as we might expect, exercised the Rabbis: clear of the death penalty, not of the payments for shevet and ripui (to which is added compensation also for any lost limb: the Rabbis combine the remedies here with their understanding of the talionic provisions in Exod. 21:24f., in order to produce a unified system of damages for personal injury: see Mishnah B.K. 8:1; Mekhilta ad Exod. 21:18, vekhi yeriyvun).

6 Cf. 2 Sam. 3:28–29: “Afterward, when David heard of it, he said, “I and my kingdom are for ever guiltless (naki) before the LORD from the blood of Abner the son of Ner”.

7 Mekhilta ad loc.; further sources in Houtman, supra n. 3, at 146f.

8 E.g., Cazelles, H., Etudes sur le Code de l'Alliance (Paris, Letouzey et Ané, 1946) 53Google Scholar; Liedke, G., Gestalt und Bezeichnung alttestamentlicher Rechtssätze: Eine formgeschichtlich terminologische Studie (Neukirchen-Vluyn, Neukirchener Verlag, 1971; WMANT, 39) 48Google Scholar; Jackson, supra n. 2, at 92f.; Schwienhorst-Schönberger, supra n. 1, at 55.

9 As is understood by scholars who interpret uenikah as a causation test restricting bloodguilt: see infra n. 44.

10 To do so would entail the view that there was sufficient causation for a “civil” (compensatory) remedy but insufficient causation for a “criminal” remedy. On this reading, moreover, there is no remedy at all for the idleness and illness, if there is no subsequent fatality. See also Houtman, supra n. 3, at 148.

11 De Specialibus Legibus, III. 104–107, Translation of F.H. Colson, Philo, with an English Translation (London and Cambridge, Heinemann and Harvard University Press, 1937) VII.541–543 (Loeb Classical Library).

12 Following the LXX interpretation, as noted by Colson, supra n. 11, at VII. 543 n.b.

13 Infra, n. 44.

14 The converse of the later rabbinic principle that one who is liable to the death penalty is absolved from any monetary payment for which he would otherwise be liable in respect of the same (death-causing) act. See, as applied to Exod. 21:22–23, Mekhilta deRabbi Shimon b. Yohai, Epstein, J.N. and Melamed, E.Z., eds. (Jerusalem, Mekize Nirdamim, 1955), 176Google Scholar; Mechilta d'Rabbi Ishmael, Horowitz, H.S. and Rabin, I.A., eds. (Jerusalem, Bamberger & Wahrman, 1960), 276Google Scholar (kol hamehayyev mitah patur min hatashlumin); Ket. 35a; more generally, Ket. 37a-b; and Loewenstamm, S.E., “Exodus 21:22–25”, Vetus Testamentum 27 (1977), 359CrossRefGoogle Scholar, reprinted in his Comparative Studies in Biblical and Ancient Oriental Literatures (Neukirchen-Vluyn, Neukirchener Verlag, 1980) 524; Cohn, H.H., “The Penology of the Talmud” (1970) 5 Is. L.R. 53, at 68CrossRefGoogle Scholar, reprinted in Jewish Law in Ancient and Modern Israel (New York, Ktav Publishing House, 1971) 76f.

15 That function is normally performed by vav consecutivum, occasionally ow.

16 Indeed, the ki…im relationship is very often oppositional, with the im clause introducing a variant upon at least one element in the previous protasis of the ki clause. This is put in terms of Fall und Gegenfall by Schwienhorst-Schönberger, supra n. 1, at 63; Osumi, Y., Die Kompositionsgeschichte des Bundesbuches Exodus 20, 22b-23, 33 (Göttingen, Vandenhoeck & Ruprecht, 1991) 112.Google Scholar

17 The Laws of Eshnunna (Jerusalem, Magnes Press, 1969) 63 (2nd ed., 1988) 101f.

18 Yaron requires that the initial summa be deferred. However, even where it is deferred, the opening clause is still conditional in sense. More important is the fact that this initial conditional proposition (whether the conjunction summa is used or not) is not followed immediately by a consequence, but rather is interrupted by a (further) conditional sub-clause. Yaron accepts that this form (he cites LH 163/164: Eshnunna, 2nd ed., 102 n.47) is “somewhat similar”. See further Jackson, B.S., “Legal Drafting in the Ancient Near East in the Light of Modern Theories of Cognitive Development”, Mélanges á la mémoire de Marcel-Henri Prévost (Paris, PUF, 1982) 58f.Google Scholar

19 Thus, on my account, the more relevant comparison is with provisions like LH 8, which commences with a general protasis, introduced by summa awilum, but does not proceed to an apodosis; rather, it then introduces two complete norms (each with a protasis introduced by summa, followed by an apodosis), the function of the initial summa awilum (“split”) protasis being to supply information relevant to both the subsequent norms. Thus: “If a man (summa awilum) has stolen an ox or a sheep or an ass or a swine or a boat, if (summa) (it is the property) of a god (or) if (summa) (it is the property) of a palace, he shall pay 30-fold; if (summa) (it is the property) of a villein, he shall replace it 10-fold”. Exod. 21:18f., as we presently find it, begins as if it has such a structure in mind, but provides only one complete norm after the initial “split” protasis. To parallel LH 8, we would require something like: “When men quarrel and one strikes the other with a stone or with his fist and the man does not die but keeps his bed, then if the man rises again and walks abroad with his staff, the striker shall be clear; only he shall pay for the loss of his time, and shall have him thoroughly healed; if the man does not rise again, then…”. The problem faced by the draftsman is that logically he is dealing with two variants: (a) whether or not the victim ever recovers from his sick bed; (b) whether he dies, and if so when. Not all the permutations are addressed; some (such as death while still on his sick bed) may have been regarded as self-evident (whether from custom or some other formulation, such as Exod. 21:12). For the applicability of Exod. 21:12–14 in such circumstances, see Sarna, supra n. 1, at 123.

20 The very splitting of the protasis anticipates the introduction of variant cases within what is stated in the initial clause, as in Exodus 22:6–7, the one genuine example in the Mishpatim. See also Schwienhorst-Schònberger, supra n. 1, at 52, who therefore regards the im clause as a temporal sub-clause within a single (complex) protasis (at 53). But the latter construction would be equally unique, as argued in the text above. The uniqueness of the drafting according to the present text makes it all the more strange that this norm should have been chosen to exemplify the supposed derivation of casuistic laws from court records: see infra, text at nn. 57–62.

21 Alt, supra n. 2, at 105 n. 56, appears to have suspected something of this kind. He wrote of the “…lacuna after xxi. 19 (or more correctly after xxi. 18, since xxi. 19 is probably the beginning of the second subdivision of this section)….” Cf. Houtman, supra n. 3, at 147, who supplies what he thinks would have been the implied apodosis to V.18: “then he does not have to be put to death”. Transpositions of the kind here suggested have also been suspected elsewhere. See, e.g., Driver, S.R., Exodus (Cambridge, Cambridge University Press, 1911) 224Google Scholar, on Exod. 22:2b MT, shallem yeshallem, im eyn lo vemmkhar bigeneyvato.

22 In one respect, I concede, my reconstruction does go beyond these parallels. In both Exod. 21:20–21 and 22:1–2, the victim dies in the first norm, and this is carried over into the second. On my reconstruction of Exod. 21:18–19, the death of the victim is mentioned but negated in the first norm, then carried forward as affirmed in the second. It is the same narrative element which is carried forward, but accompanied by a different modality.

23 Jackson, supra n.2, at 150–52.

24 This is the standard interpretation of egrof, adopted already by Philo (quoted above), though perhaps derived by him from the LXX. Driver, supra n. 22, at 217, while favouring “fist”, notes that “spade” or “hoe” would be possible etymologically, but would not fit Isa. 58:4. He doubts also the Targumic “club” or “cudgel”, as lacking philological justification. In the Mekhilta (ad loc), R. Nahman offers a hekesh with even, to argue that the egrof must be capable of producing death (sheyesh bo kedei lehamit). If it does refer to the hand rather than an implement, it indicates a clenched fist rather than an open palm which can deliver a slap rather than a wound: Schenker, supra n. 2, at 212 n.7; see also Sprinkle, J.M., The Book of the Covenant — A Literary Approach (Sheffield, JSOT Press, 1994) 90Google Scholar; Houtman, supra n. 3, at 143f.

25 E.g., Schenker, supra n. 2, at 211f.

26 Cf. Sprinkle, supra n. 24, at 90; Houtman, supra n. 3, at 144. Mekhilta ad loc. also makes this connection, though not for this purpose.

27 The LXX and Syriac specify two participants; Cazelles, supra n. 8, at 53, argues that the Hebrew itself presupposes this (ish et re'ehu) but cannot state it precisely, since ish does not exist in the dual form. Houtman, supra n. 3, at 143, is not convinced.

28 Cf. Houtman, supra n. 3, at 144. A quarrel is found elsewhere as a paradigm of intentional but unpremeditated (spur-of-the-moment) action. See Dig. 48.8.1.3, Leniendam poenam eius, qui in rixa casu magis quam voluntate homicidium admisit, where rixa (cf. Vulg. Exod. 21:18, 22: si rixati fuerint viri) is viewed as more akin to casus [Dig. 48.19.11.2: delinquuntur autem aut proposito aut impetu aut casu, with examples: Jackson, supra n. 2, at 91f. n. 100] than to voluntas: Jackson, supra n. 2, at 87 and n. 83, citing also LH 206 and U-N 16. Aliter, Schenker, supra n. 2, at 214–216, who argues that a brawl is the one case where intention in relation to consequences (i.e., how severely the offender intended to injure, rather than his intention to strike the blow at all) cannot be determined externally, but only subjectively. Modern criminal law (in England too) does indeed distinguish intention in relation to the act from intention in relation to the consequences, but there is no warrant for applying such a sophisticated modern distinction to the biblical texts without some (even concrete) indication of it in the text. Schenker takes support from the exculpatory oath in LH 206, but there the oath is best viewed as a denial of premeditation. That the phrase ina idu has no stable, technical meaning may be seen from LH 227, the case of the misinformed barber, where Roth, supra n. 4, renders it “knowingly” (as against “intentionally” in LH 206). More generally, Schenker, ibid., argues that intention in the context of a brawl has to be determined in accordance with the circumstances, and uses this to distinguish Exod. 21:18 (where a weapon is used against its intended victim) from Exod. 21:22 (where no weapon is mentioned, and the pregnant woman is not the intended victim at all). He presents Exod. 21:18–32 as structured around a descending hierarchy of intentionality (“Intentionalität”, 216f.), from “…hochsten Grad der Absichtlichkeit, nämlich der direkten Vorsätzlichkeit” in Exod. 21:18 to “Fahrlässigkeit” in Exod. 21:28–32 — though this hierarchy is not determinative of legal consequences, the latter taking account also the gravity of the injury. But quite apart from the methodological problems in attributing such a structure of abstractions to our text (Schenker himself recognises the typically concrete formulation of ancient Near Eastern law: 211), the proposed hierarchy ignores Exod, 21:26f. (which disturbs it), and there are inconsistencies in Schenker's terminology regarding intention in Exod. 21:18, variously described as “Absichtlichkeit” (214); “Absichtlichkeit (nicht die Vorsätzlichkeit!)” (142 n. 13), “Vorsätzlichkeit” (216, 217), and “Absichtlichkeit im Affekt” (214 n.13, 215, 217).

29 Cf. Houtman, supra n. 3, at 144. Paul, S.M., Studies in the Book of the Covenant in the Light of Cuneiform and Biblical Law (Leiden, E.J. Brill, 1970) 67fGoogle Scholar, sees this as the point of distinction between this paragraph and the talionic provisions, but this view has attracted little support: see, e.g., Sprinkle, J.M., “The Interpretation of Exodus 21:22–25 (Lex Talionis) and Abortion” (1993) 55 Westminster Theological Journal 237 n. 13.Google Scholar

30 On the sufficiency of “momentary” intention in modern (by contrast to medieval) English criminal law, see my “On the Atemporality of Legal Time”, in Ost, F. and Hoecke, M. van, eds., Temps et Droit. Le droit a-t-il pour vocation de durer (Brussels, Bruylant, 1998) 225–246, at 235.Google Scholar Biblical scholars tend to recognise that the blow here is intentional, though not premeditated, though the terminology used does not always reflect that distinction. Thus Schwienhorst-Schönberger, supra n. 1, at 116, speaks here of “vorsätzlicher” Körperverletzung.

31 Cf. Paul, supra n. 29, at 67. Houtman, supra n. 3, at 144, argues (against Schenker, A., Versöhnung und Widerstand (Stuttgart, Verlag Katholisches Bibelwerk, 1990) 35f.)Google Scholar that there is not even an intent to injure the other: an enraged person does not know what he is doing. But whether this situation should be classified as intention or not is too abstract a question for the biblical sources: for them, it suffices to distinguish what are sensed as experientially different situations, and apply different legal consequences to them. There is no logical necessity for the application of abstract legal concepts (an argument famously advanced in legal philosophy by Ross, Alf, “Tû-Tû”, (1957) 70 Harv. L.R. 812–825CrossRefGoogle Scholar; see further my Making Sense in Jurisprudence (Liverpool, Deborah Charles Publications, 1996) 141–143); and where there is neither textual support for them nor parallels indicating the attainment of that level of discursive/cognitive advance needed to sustain them (see Jackson, supra n. 18, at 60f.; Making Sense in Law. Linguistic, Psychological and Semiotic Perspectives (Liverpool, Deborah Charles Publications, 1995) 268f.), there is little historical warrant for the debate.

32 Deut. 4:42; 19:4, 6, 11; Josh. 20:5; Num. 35:20.

33 We may recall the Roman rule under the lex Aquilia under which an action on the statute was limited to cases of injury and damage caused corpore suo. The Rabbis show sensitivity to the same issue: see Jackson, supra n. 2, at 262f.

34 Alt, supra n, 2, at 89–91:

“Here we have the use of the objective conditional clause carried to its fullest extent: there are no less than six conditional clauses, four for the main case and two for the subsidiary case, and then three main clauses, all in the third person. For the Israelite the co-ordination of sentences was the more natural usage, and he would be put to some difficulty to construct such a lengthy period, with its complicated degrees of subordination. But we can understand at once the intention which led to such a forced use of the language. In the conditional clauses the case envisaged by the law had to be exactly described and distinguished from similar cases, before the negative and positive consequences laid down by the law could be set out. In our chosen example it was not a case of a premeditated attack of one man upon another ‘with a high hand’ but only of such an attack as might have arisen without any considered intention from the momentary excitement of a quarrel; it is not a question of an attack with a weapon brought specially for this purpose, but with an object lying within sight and reach of the attacker at the psychological moment; not an attack leading to death, but only such as to confine the victim to his bed. All this, however, merely defines the general features of the case in question. Next, therefore, the conditions of the subsidiary case, for which alone the prescriptions of the main clause are valid, must be set out in two further subordinate clauses: on the one hand the patient must not be confined to his bed permanently, but on the other hand he does not have to regain his previous capacity for work, particularly in the fields, but has only to be sufficiently restored to health to take his full part in the life of the community in the street (and in the gate). Only by the provisions of the two subsidiary clauses is the case given the precise limits intended by the lawgiver: cases that lie on one side or the other outside the lines drawn by him would obviously be judged and dealt with differently by the law.

“Once this is done, the necessary details of the penalties to be imposed in this particular case can be summarized in the main clauses. These are also set out with great precision — there is first the negative provision, that the use of capital punishment is expressly excluded, and then the positive provision, that the accused is required to compensate his victim. He must in fact pay a double compensation — first for the time when the injured man could not take part in public life, and secondly for the cost of his restoration to health. This means that each of the nine clauses plays an indispensable part in the structure of the whole law, and that there is not one redundant word in any of them. The apparently pleonastic diction is not so in reality, and the overloaded subordination of conditional clauses to one another is unavoidable. It follows as a necessary result of the complicated nature of the matter that is being dealt with, and especially of the need to make clear distinctions in the application of basic principles. These principles are not stated in the law, but are none the less rigidly applied to the case in question”.

Cf. Prévost, M., “A Propos du Talion”, in Mélanges dédiés á la mémoire de Jacques Teneur (Lille, Université du droit et de la santé, 1977) II.624, 629Google Scholar, on the drafting of Exod. 21:22–25.

35 See, for the moment, Jackson, B.S., “Practical Wisdom and Literary Artifice in the Covenant Code”, in Jackson, B.S. and Passamaneck, S.M., eds., The Jerusalem 1990 Conference Volume (Atlanta, Scholars Press, 1992) 65–92Google Scholar (Jewish Law Association Studies, VI); “Modelling Biblical Law: The Covenant Code”, (1995) 70:4 Chicago-Kent L.R. 1745–1827, esp. 1760–1771.

36 A concept used in modern legal philosophy in discussing legal reasoning in “hard cases”: see Dworkin, R.M., Taking Rights Seriously (London, Duckworth, 177), 112f.Google Scholar; Jackson, Making Sense in Jurisprudence, supra n. 31, at 268f.

37 Cf. Chirichigno, G.C., Debt-Slavery in Israel and the Ancient Near East (Sheffield, JSOT Press, 1993) 173Google Scholar: “the assailant is required to take care of the injured person until he is completely healed…”.

38 Arguing in part from HL 10 (see n. 39, infra), Schwienhorst-Schönberger, supra n. 1, at 58, suggests material costs (ointments and oils), payment of a physician and possibly also transport and other liturgically-related costs. Cf. Paul, supra n. 29, at 67.

39 HL 10 appears to require both provision of “medical care” (nursing?) and (when he recovers) payment of the physician. Since in this same provision, the Hittite Laws explicitly contemplate payment in kind rather than money in respect of “idleness” (“In his place he shall provide a person to work on his estate until he recovers”: Roth, supra n. 4), we may well interpret the required “medical care” (as distinct from the payment of the physician) in the same sense. See also LH 206: “he shall satisfy the physician (i.e., pay his fees)” (Roth); cf. Houtman, supra n. 3, at 148.

40 Schwienhorst-Schònberger, supra n. 1, at 57, prefers a derivation from yashav rather than shabat, partly because it fits better with the opposition to yakum and halakh. The choice hardly affects the substance of the meaning.

41 Indicated by the use of the verb shillem in Exod. 21:36, 37, 22:3, 4, 5, 6, 8, 11, 13; see Daube, D., Studies in Biblical Law (Cambridge, Cambridge University Press, 1947, repr. New York, Arno, 1969) 134–138, esp. 135Google Scholar; arg. also Exod. 21:23, 34 (on which see Daube, Studies, 138–141). Daube, however, rejected this solution (without reference to the Hittite parallel) in Exod. 21:19, partly on the grounds that the verb there used is natan rather than shillem: Studies, 137.

42 Cf. Fensham, F.C., “Exodus XXI 18–19 in the light of Hittite Law §10”, Vetus Testamentum 10 (1960), 333–335Google Scholar (arguing against the view of Cazelles, supra n. 8, at 53f., that shivto means “residence”, i.e., accommodation); Schwienhorst-Schönberger, supra n. 1, at 57; Houtman, supra n. 3, at 145, 148. Aliter, Phillips, A., Ancient Israel's Criminal Law (Oxford, Blackwell, 1970) 87.Google Scholar

43 Alt, supra n. 2, at 90; Schwienhorst-Schönberger, supra n. 1, at 56.

44 Cf. Driver, supra n. 22, at 217: “…if he died after he had taken his first walk, he might himself have met with some further accident, or imprudently ventured out too soon”; Daube, D., “Direct and Indirect Causation in Biblical Law”, Vetus Testamentum 11 (1961), 248f.Google Scholar; Phillips, supra n. 42, at 87; Liedke, supra n. 8, at 48 n. 2; Schmitt, G., “Ex. 21, 18f. und das rabbinische Recht”, in Dietrich, W. et al. , Theokratia. Festschrift K.H. Rengstorf (Leiden, E.J. Brill, 1973) 13f.Google Scholar; Schwienhorst-Schönberger, supra n. 1, at 54f; Chirichigno, supra n. 37, at 173; see also Osumi, supra n. 16, at 111 n. 115 (end), though the reasoning here is somewhat obscure.

45 Romanists may recall the argument of Daube about the original significance of the 30-day rule in the Lex Aquilia: Daube, D., “On the Third Chapter of the Lex Aquilia” (1936) 52 Law Q.R. 253–268.Google Scholar A similar view is taken of the medieval rule of English law, that in the crime of murder, death had to take place within a year and a day (cf. Williams, G., Textbook of Criminal Law (London, Stevens, 1978) 325f.)Google Scholar. Affirmed in modern times in Dyson [1908] 2 K.B. 454, this was repealed only in 1996: Law Reform (Year and a Day Rule) Act, 1996. Even now, however, the Attorney-General's consent to the prosecution is required if death occurs more than three years later, or if the defendant has already been convicted of another (i.e. non-fatal) offence in connection with the incident.

46 Cf. Daube, supra n. 44, at 248: “the person who receives a bump, lives happily for twenty years, then develops migraine — and claims. Of course, the migraine might be due to the bump”.

47 The argument derives from the content of the norms, not the use here of yeriyvun — which refers to the context of the offence, rather than the means to resolve it. We cannot therefore invoke the distinction between riv and mishpat advanced by Bovati, P., Re-Establishing Justice (Sheffield, Sheffield Academic Press, 1994)Google Scholar in order to determine here the procedure used to resolue the dispute. In fact, Bovati, 37 n. 1, 42, appears to take yeriyvun here as a “degraded form” of dispute resolution, where the debate designed to resolve (a different) dispute turns into a brawl. Against the view that yeriyvun in Exod. 21:18 implies a legal process, see also Cazelles, supra n. 8, at 53 (arguing from Gen. 26:22, 31:36); Schwienhorst-Schönberger, supra n. 1, at 110.

48 See further Jackson, “Practical Wisdom”, supra n. 35, at 65–78.

49 The same argument may he applied to the other two cases which R. Ishmael is said to have interpreted as a mashal: (1) the determination of whether the killing of an intruder is justified or not (im zarha hashemesh alav, Exod. 22:2, MT, being interpreted not as an objective test, whether the killing occurs by day or night, but whether “it is known that he (the intruder) would have left in peace” (Mekhilta; Targum Yonatan and Sanh. 72a are more explicit in interpreting zarha hashemesh as “as clear as the sun”: see further Jackson, B.S., Theft in Early Jewish Law (Oxford, Clarendon Press, 1972), 208–11Google Scholar, on these and parallel sources); (2) the sheet of the suspected bride in Deut. 22:17 (“They should make the matter as clear as a white sheet”).

50 I continue to maintain, against Greenberg, M., “Some Postulates of Biblical Criminal Law”, in Haran, M., ed., Yehezkel Kaufman Jubilee Volume (Jerusalem, Magnes Press, 1960) 13–17Google Scholar, and others, the view that kofer was originally a normal institution, quite generally available at the discretion of the kin, but banned at a late stage in the development of biblical literature (represented by Num. 35): Jackson, supra n. 2, at 42–46 — a view shared by Loewenstamm, Comparative Studies, supra n. 14, at 146–153; McKeating, H., “The Development of the Law of Homicide in Ancient Israel” (1975) 25 Vetus Testamentum 55f.CrossRefGoogle Scholar; Rofé, A., “The History of the Cities of Refuge in Biblical Law”, in Japhet, S., ed., Studies in Bible (Jerusalem, Magnes Press, 1986; Scripta Hierosolymitana, XXXI) 206, 235Google Scholar; Westbrook, R., Studies in Biblical and Cuneiform Law (Paris, Gabalda, 1988) 77–83Google Scholar; Welch, J.W., “Reflections on Postulates: Power and Ancient Laws — A Response to Moshe Greenberg”, in Firmage, E.B., Weiss, B.G. and Welch, J.W., eds., Religion and Law, Biblical-Judaic and Islamic Perspectives (Winona Lake: Eisenbrauns, 1990) 116.Google Scholar

51 Supra n. 24, at 102f.

52 Contrary to the approach of Alt, quoted in n. 34, supra.

53 Deut. 16:18–20, 2 Chron. 19:5–7, on which see Jackson, B.S., “Ideas of Law and Legal Administration: a Semiotic Approach”, in Clements, R.E., ed., The World of Ancient Israel: Sociological, Anthropological and Political Perspectives (Cambridge University Press, 1989) 186–188Google Scholar; see also Jackson, “Modelling Biblical Law”, supra n. 35, at 1749 n. 15, 1818–1823.

54 The present text, though its content is suggestive of oral, customary rules requiring no institutional involvement, already reflects literary reformulation. The carrying forward of sense from one norm to another is suggestive of a simple written discourse structure: v. 19 could not have circulated on its own; it makes no sense (even without my reconstruction) without v. 18.

55 This might appear to manifest the theory of Sir Henry Maine, on the priority of themistes to customary law. See, however, Jackson, Making Sense in Jurisprudence, supra n. 31, at 64f.

56 Supra n. 2, at 92.

57 Supra n. 8, at 39ff., esp. 54–56. For such trial records, see now those from Nippur, discussed by Locher, C., Die Ehre einer Frau in Israel (Freiburg, Schweiz, Universitätsverlag, 1986) 93–109.Google Scholar

58 Boecker, H.J., Law and the Administration of Justice in the Old Testament and Ancient East, trld. Moiser, J. (London, SPCK, 1980) 153.Google Scholar He quotes Liedke, supra n. 8, at 55f.: “the development of the casuistic principle began … as the attempt to preserve and hand on, in written or oral form, a judicial sentence”. Note the indeterminacy regarding the form of transmission. Goody, J., The Interface Between the Written and the Oral (Cambridge, Cambridge University Press, 1987) 74Google Scholar, sees the process as associated specifically with literacy: in discussing Bottéro's account of the place of Hammurabi's Code in Ancient Near Eastern Listenwissenschaft, he comments: “…the stripping away of the individual and the casual, as well as the process of selection this involves, is part of the process of recording a court case or any other set of events. Moreover the very fact of writing them down means that one can make, record, and hence compare repeated observations in a precise away”.

59 Otto, E., “Town and Rural Countryside in Ancient Israelite Law: Reception and Redaction in Cuneiform and Israelite Law”, (1993) 57 Journal for the Study of the Old Testament 4, 18, 22.Google Scholar

60 Crüsemann, F., The Torah. Theology and Social History of Old Testament Law, trans. Mahnke, Allan W. (Edinburgh, T&T Clark, 1996) 160.Google Scholar

61 We do, by contrast, have reflections of orally delivered verdicts: tsadik ata (Prov. 24:24; cf. Boecker, supra n. 58, at 38); even perhaps naki in Exod. 21:18.

62 For the theoretical foundations for this claim, see Jackson, , Making Sense in Law, supra n. 31, at 144–48, 203–205, 218f., 228–234.Google Scholar On the use of the casuistic form in other legal cultures, see Jackson, , “Evolution and Foreign Influence in Ancient Law” (1968) 16 Am. J. Comp. L. 381 and n. 48CrossRefGoogle Scholar; Segert, S., “Form and Function of Ancient Israelite, Greek and Roman Legal Sentences”, in Hoffner, H.A., ed., Orient and Occident, Essays Presented to C.H. Gordon (Neukirchen-Vluyn, Neukirchener Verlag, 1973) 164f.Google Scholar

63 Examined earlier by Westbrook, R., “Biblical and Cuneiform Law Codes” (1985) 92 Revue Biblique 261–264.Google Scholar See also Fitzpatrick-McKinley, A., The Transformation of Torah from Scribal Advice to Law (Sheffield, Sheffield Academic Press, 1999) 109–112.Google Scholar

64 In addition to the narratives discussed in this paragraph, Westbrook includes Num. 15:32–37 (the case of the Sabbath stick-gatherer), while recognising that it provides (expressly) only a decision and not a precedent for the future. See further Jackson, “Modelling Biblical Law”, supra n. 35, at 1824–1826, on the jurisdictional claims advanced in these sources.

65 Though not precisely in the form of the Mishpatim: the first (Num. 27:8) commences with ish ki, commonly found in the priestly source, followed by three ve'im clauses.

66 Num. 27:7: ken benot tselophehad dobrot, naton titen lahem ahuzat nahalah ….

67 Crüsemann, supra n. 60, at 84, has plausibly suggested that these narratives are designed to provide authority to propound new, divinely-authorised rules, which are not claimed to have been given on Sinai.

68 Cf. Jackson, B.S., “Some Semiotic Questions for Biblical Law”, Fuss, A.M., ed., The Oxford Conference Volume (Atlanta, Scholars Press, 1987; Jewish Law Association Studies III) 6–9.Google Scholar An argument to similar effect has been advanced by Knierim, R., “The Problem of Ancient Israel's Prescriptive Legal Traditions”, in Patrick, D., ed., Thinking Biblical Law (1989) 45 Semeia 16f.Google Scholar, against Liedke's account of the casuistic laws. The latter, Knierim argues, fails conceptually to distinguish between a case decision and the use of prescriptive language in formulating a binding (legislative) rule for the future. “In these formulations, Liedke actually misses the point in his own awareness of the differences between a judgment and a law. It is the question as to what constitutes a law as law once it is transformed from the formulation of a decision into a prescriptive statement. Liedke does not explain why such transformations happened, who made them, how the persons who made them functioned, and what the function of these new formulations was meant to be”.

69 On the relationship between the two cases, and the narrative function of their separation in the text, see Ulrich, D.R., “The Framing Function of the Narratives about Zelophehad's Daughters”, (1998) 41 J. Evangelical Theological Society 529–538.Google Scholar

70 Num. 36:5: ken mateh bnei yosef dobrim.

71 Lev. 24:15–21; see further Jackson, B.S., “Talion and Purity: Some Glosses on Mary Douglas”, in Sawyer, J.F.A., ed., Reading Leviticus, A Conversation with Mary Douglas (Sheffield, Sheffield Academic Press, 1996), 119–121.Google Scholar

72 lo ta'asu ken …, v. 23. See further on this narrative Jackson, “Modelling Biblical Law”, supra n. 35, at 1774f. n. 89.

73 kehelek hayored bamilhamah ukehelek hayoshev al hakelim yahdav yahaloku, v.24. Falk, “Addenda to ‘Hebrew Law in Biblical Times’” (1978) VIII Din Israel 36, rejected the view that this can be regarded as an example of royal legislation; David was not yet king, he acted only as military commander. On this, see further Jackson, B.S., Studies in the Semiotics of Biblical Law (Sheffield, Sheffield Academic Press, 2000)Google Scholar §6.2 (forthcoming).

74 Pace, Alt, supra n. 2, at 91, “…as far as I can see there is not a single one of the laws given in casuistic form, either within or without the Book of the Covenant, which could not be used as it stands in the work of the ordinary courts; they were presumably composed, then, to fulfil the needs of these courts”. In fact, Alt's “agenda” was theological rather than legal historical: he portrayed the casuistic law as “rigid” (see end of quotation in n. 34, supra) and the apodictic (supra n. 2, at 132), as displaying an “unrestrained power of aggression which seeks to subject every aspect of life without exception to the unconditional domination of the will of Yahweh”. Houten, C. van, The Alien in Israelite Law (Sheffield, Sheffield Academic Press, 1991) 11Google Scholar, comments on the approach to the study of Old Testament law which has “bequeathed to us a tradition which denigrates a law-centered religion”.

75 See further Jackson, B.S., “Significato letterale. Semantica e narrativa nel diritto biblico e nella teoria contemporanea del diritto” (1999) 12 Ragion Pratica 153–177Google Scholar; idem, “The Original ‘Oral Law”’, in Brooke, G.W., ed., Jewish Ways of Reading the Bible (Oxford, Oxford University Press, 2000; Journal of Semitic Studies Supplement X, forthcoming).Google Scholar