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On Deuteronomic Legislation — Sparing the Mother Bird
Published online by Cambridge University Press: 28 October 2011
Extract
Who but David Daube is able to look at matters seemingly trivial and insignificant and show how astonishingly revealing they are of some of the deepest longings of the human spirit? How interesting that with his impeccable academic record, his belonging over the years to the most august and élite institutions of learning, in a word, his connection with the Establishment, that his instinct for how things look to the lowly and the oppressed has come more and more to the fore. Consider the fables of antiquity. They seem to be no more than moderately imaginative stories that possess some entertainment value, demand little of the listener's time and attention, ostensibly tell about the world of animals and plants but really about the human world. The genre was despised by the educated snobs of antiquity. Intellectuals in our culture, somewhere defined as people who are educated beyond their intelligence—actually this reflects Aesop's view of them in his time—would also overlook the genre if someone of Daube's stature were not around to remove the scales from their eyes.
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References
1. Daube, David, Ancient Hebrew Fables (Oxford, 1973)Google Scholar.
2. Livy 2.32.8.9. See Daube, David, Civil Disobedience in Antiquity (Edinburgh, 1972) 130–31Google Scholar.
3. As emerges in his relationship with the philosopher Xanthus and his circle.
4. Perry, B. E., Babrius and Phaedrus, Loeb Classical Library (London, 1965) 218Google Scholar. and discussed by Daube, in ‘Three Footnotes on Civil Disobedience in Antiquity,’ Humanities in Society 2 (1979) 69–74Google Scholar.
5. He That Cometh (London, 1966) 6–14Google Scholar.
6. von Rad, G., Das Fünfte Buch Mose, Deuteronomium (Göttingen, 1964) 101Google Scholar: the law is to be attributed only to humane motives and hardly to considerations of utility.
7. Phillips, A., Deuteronomy (Cambridge, Eng., 1973) 146Google Scholar, speaks of its being an environmental law: it is based upon a notion of utility — the mother has to produce again.
8. The lawgiver is not thinking of conditions in a famine. In fact he is legislating for a time when there will be an abundance of food (Deut 6: 10, 11; 7: 12- 14, etc.).
9. See Nursery Rhymes and History: Humpty Dumpty, The Oxford Magazine, February, 1956, 272, 274. Daube's solution inspired the opera, All the King's Men, premiere, 1969, by Beverly Cross and Richard Rodney Bennett.
10. Humpty Dumpty, in fact, is not an egg. A plain reading of the text runs counter to this popular view.
11. The law's (Hebrew) formulation is so symmetrical that one can refer to its rhythmical quality.
12. It was Daube who drew attention to the fact that an examination of this verb's occurrence in the Old Testament revealed a definite preponderance of adverse meetings or happenings: ‘The casual tends to be casus, obstruction, frustration.’ See Suddenness and Awe in Scripture (Robert Waley Cohen Memorial Lecture, London, 1963) 6–10Google Scholar.
13. Cp. also 2 Kings 8: 12 (Elisha to Hazael), ‘I know the evil that thou wilt do unto the children of Israel: their strongholds wilt thou set on fire, and their young men wilt thou slay with the sword, and wilt dash their children, and rip up their women with child.’ Also 2 Kings 15: 16: Menahem sacked Tappuah (Tiphsah) and ripped up all the women in it who were with child.
Milton in 1655 responded to the Duke of Savoy's persecution of the protestant Waldenses with his On the Late Massacre in Piedmont, ‘Avenge, O Lord, Thy slaughter'd saints, whose bones/ Lie scattered on the Alpine mountains cold; …/ Forget not: in Thy book record their groans/ Who were Thy sheep, and in their ancient fold/ Slain by the bloody Piemontese that roll'd/ Mother with infant down the rocks.’
The duration of the Trojan war for nine years was predicted by the seer Calchas after he observed a serpent consume eight young birds and then their mother, Apollodorus, Epitome 3.15; Homer, Iliad 2.299 330.
14. Compare how in medieval Canon law an important position on the admissibility of evidence by testes singulares was derived, it would appear, from reflection upon the story of Susanna in the Old Testament Apocrypha. See Jackson, B. S., ‘Susanna and the Singular History of Singular Witnesses,’ Acta Juridica (Cape Town, 1977) 37–54Google Scholar.
15. This vast topic—interference with the past—has been commented on at length by Daube, David in, ‘Greek and Roman Reflections on Impossible Laws,’ Natural Law Forum (American Journal of Jurisprudence) 12 (1967) 50–84Google Scholar. The sinister interference that Orwell writes about in 1984 (see Daube 52), ‘reality-control,’ reflects a phenomenon, sometimes nasty, sometimes idealistic and reverential, that is found in almost every area of human activity.
16. Anything he does is aggressive. On his way to put down Sheba's rebellion he foully murdered Amasa, the commander David had deputed to marshal his forces.
17. Cp. Medea's comment,‘A woman is weak for warfare, she must use cunning. Men boast their battles: I tell you this, and we know it: It is easier to stand in battle three times, in the front line, in the stabbing fury, than to bear one child. And a woman, they say, can do no good but in childbirth.’ Euripides, Medea Act 1 lines 248 52, a free translation by Robinson Jeffers (New York, 1946).
For a biblical parallel to the wise woman whose name is not recorded, cp. Eccles 9:13 16: ‘This wisdom have I seen also under the sun, and it seemed great unto me: There was a little city, and few men within it; and there came a great king against it. and besieged it, and built great bulwarks against it. Now there was found in it a poor wise man. and he by his wisdom delivered the city: yet no man remembered that same poor man. Then said I, wisdom is better than strength: nevertheless, the poor man's wisdom is despised, and his words are not heard.’
18. See Koehler-Baumgartner's, Lexicon (Leiden, 1958) 59, 159Google Scholar.
19. Observe how in the tradition behind the fruit-trees law the king of Moab caused hostilities to cease by sacrificing his eldest son (2 Kings 3:27).
Socrates, under sentence of death, but considering a request to escape, pictures the city and the laws pleading with him: ‘Are you intending, as far as in you lies, to destroy us and with us the whole city? You must know that the city cannot continue if the decisions of its courts are to be set at nought by any private individual.’ He goes on to point out that the city and its laws are the author of his being. Through them his father married his mother and gave birth to him. See Crito, 50, and Jones, J. W., Law and Legal Theory of the Greeks (Oxford, 1956) 1Google Scholar.
20. Note too the linguistic link between the law and the tradition. Both open by employing the niphal form of qara' ‘happen to be,’ ostensibly neutral in each instance, but a little probing (the reference to Sheba as a son of Belial, the suggestion of human warfare in attacking the birds) indicates the potential for adverse happenings.
21. Until Tiglath-pileser captured it and carried its people captive to Assyria (2 Kings 15:29).
22. See my ‘On Separating Life and Death: An Explanation of Some Biblical Laws,’ Harvard Theological Review 69 (1976) 1–7CrossRefGoogle Scholar; ‘A Common Element in Five Supposedly Disparate Laws,’ Vetus Testamentum 29 (1979) 129–142CrossRefGoogle Scholar. Cp. what takes place in Orwellian society: ‘It struck him as curious that you could create dead men, but not living ones,’ George Orwell 1984, ch. 4.
23. The child eventually dies and its death is viewed as a punishment for the adultery. It follows that a child died so that a mother could go free.
24. And not just by way of a ruse as in Malcolm and MacDuff's attack upon Dunsinane Castle, William Shakespeare, MacBeth, Act 5, Scenes 4 6.
25. If Daube accepted this line of reasoning he would view the punishment in terms of individual responsibility, in particular, that category wherein a ruler is punished by striking at one of his subjects. See his Studies in Biblical Law (Cambridge, Eng., 1947) 154–86Google Scholar.