By Anne Fitzpatrick-McKinley. Sheffield: Sheffield Academic Press 1999. Pp. 200. S57.50. ISBN: 1-850-75953-7.

T h e T r a n s fo r m a tio n o f T o r a h f r o m S c r ib a l A d v ic e t o Law .

Originally a 1993 Ph.D. thesis directed by A.D.H. Mayes at Trinity College (Dublin, Ireland), this volume combines historical investigation of the Old Testament (or Hebrew Bible), legal theory and comparative religious scholarship in order to advance an alternative proposal about the nature and development of Old Testament law. Rather than viewing the legal portions of the Old Testament as codes deriving from the ancient practice of jurisprudence, and as intended to provide a body of precedents for legal decision-making in ancient Israelite society, Fitzpatrick-McKinley argues that biblical law arose initially as a creative effort by Israelite scribes to formulate collections of moral advice, analogous to the phenomenon of dharma in ancient Indian religion. Like dharma, Old Testament law did not originally function as law in the modem sense of the term, but only graduallyand in some tension with its earlier charactercame to exercise a genuinely juristic role within early Judaism by providing legal precedents and sanctions for a growing body of binding religious rules. Fitzpatrick-McKinley first reviews (ch. 1) several important works on Old Testament law, paying particular attention to redaction-critical treatments of the Book of the Covenant {Exod 20:22-23:33), often considered by biblical scholars to represent the earliest legal code in the Bible. Works by F. Crilsemann, J. Halbe, E. Otto, and L. Schwienhorst-Sch6nberger are closely analyzed. By comparing the varying results of these works against each other, and then drawing upon contemporary legal theory (especially the work of A. Watson), she is able to identify (ch. 2) a number of problems with what she terms the standard legislative model (81) of Old Testament law. Fitzpatrick-McKinley goes on to describe and evaluate (ch. 3) the discussion about an alternative model, now with reference not only to biblical law but also to ancient Near Eastern law in general. She characterizes the basic alternative that has emerged in scholarly debate thus far as the scientific-academic treatise model of law, (88) exemplified in her discussion by J. Botteros interpretation of the Code of Hammurabi.

339

340

JOURNAL OF LAW & RELIGION

[Vol. XVII

The attractiveness of this alternative exemplary or advisory model lies in its ability to escape the chief problem that has always confronted the legislative model of biblical law: namely, the odd omissions and clear contradictions now found within the legal material of the Old Testament. If the intention behind these codes was not originally to provide the basis for a practicable legal system, but rather to provide general moral instruction, then the gaps and clashes are somewhat easier to overlook. However, there currently exist within biblical scholarship several different ways of reconstructing the precise contours of this alternative scientific treatise model of Old Testament law, Fitzpatrick-McKinley maintains. She proceeds to review a number of particular proposals (especially the work of C.M. Carmichael, B.S. Jackson, J. Goody and R. Westbrook), concluding that no entirely satisfactory explanation of the function of the codes, understood as scientific treatises, has been found. (113) In order to provide what she considers to be a more adequate alternative to the legislative model, Fitzpatrick-McKinley proposes to understand Old Testament law, or torah, as comparable to dharma, an ancient Indian term signifying duty or even religion (ch. 4). Originally suggested by B.S. Jackson, (113) the analogy between Old Testament law and dharma is here extended and developed more fully by Fitzpatrick-McKinley, who attempts to show (again using the Book of the Covenant as a primary example) that Old Testament law was never intended to legislate; it was rather a series of moral rules backed up by nothing other than their own moral authority . . . and by extra legal or non-legal divine threat. (141) This section of her argument relies quite heavilyand uncriticallyon K. van der Tooms stimulating but too-sweeping comparative work on ancient Near Eastern and Israelite morality,1 in order to show how a common conception of cosmic order undergirded all ancient Near Eastern law including that of Israel, and to trace a concern for this order to scribal circles standing in the stream of ancient tradition known as wisdom. (128) Fitzpatrick-McKinleys last full chapter (ch. 5) then attempts to reconstruct the way in which literary expressions of the wisdommorality of the scribes came in time to be viewed as authoritative and binding legislation. (146) She perceives the initial development in this process as resulting from an early association between the scribes and the monarchy. She identifies another major factor as the increasing
1. Sin and Sanction in Israel and Mesopotamia (Van Gorcum 1985).

339]

BOOK REVIEW

341

textualization of written torah, and the way that such textualization lent greater authority and autonomy to both the scribes and the literary materials they produced. In a final brief section (Issues and Proposals) the author appears to want to head off three potential objections to various aspects of the argument that she has presented. These implied methodological objections relate to: 1) her insistence that written texts by their very nature become thoroughly autonomous from the original circumstances in which they were produced (decontextualization); 2) her ambivalence about the possibility of reconstructing the authorial intention behind ancient texts; and 3) her restriction of early biblical law to elite scribal circles in light of the later widespread adoption of this law by the Jewish people generallyhere, Fitzpatrick-McKinley suggests thinking in terms of an internalization of the law among the wider population rather than a crude ideological imposition. This last point shows that Fitzpatrick-McKinley concludes her book without having answered the central question posed by its title: how did early scribal advice become transformed into the Law of early Judaism? As it turns out, this historical question is not really the main focus of Fitzpatrick-McKinleys investigation. Instead, the central issue appears to be a methodological one: whether the development of Israelite law is to be interpreted as resulting primarily from social and economic factors or more as a consequence of some other dynamic. Fitzpatrick-McKinley emphasizes the way in which the force of textualization not only makes contemporary reconstruction of social and economic factors difficult, but also would have subverted the decisiveness of such factors within ancient societies. (15) In her analysis, inner-scribal exegesis rather than social and economic factors played the determining role in the evolution of torah. (20) By contrast, the socio-economic view of causation is typified for the author in the work of E. Otto on biblical law. A related issue consists of Ottos reconstruction of a development within Israelite law from a secular to a sacred body of knowledge. (11) In response, however, Fitzpatrick-McKinleys argument seems hobbled by inconsistency. Despite an early and strong affirmation of such a development (11, Such a view is soundly supported by the texts and by other studies, cf. 20), her sustained effort (especially in ch. 4) to ground torah in cosmic order and divine sanction (rather than in actual jurisprudence) suggests the very opposite conclusion, as FitzpatrickMcKinley herself later concludes (130, Thus, legal procedure in Mesopotamia and in Israel was never totally secular, but was always

342

JOURNAL OF LAW & RELIGION

[Vol. XVII

permeated by religious concepts.). The religious character of biblical law is never adequately clarified in her treatment. At the same time, however, the authors skepticism about any facile correlativity between ancient texts and their social contexts provides for the readers consideration a number of important challenges to the way in which historical work on biblical law is often, perhaps even usually, done. (19, Law is largely a structurally autonomous organization; hence the direct link between a society and its law is tenuous.) Here the authors critical probing makes a real contribution, discussing methodological issues that still deserve to be more widely recognized and engaged within the biblical field, particularly in redaction-critical work. If, in all these ways, the argument as a whole is not quite successful, it must nevertheless be said that Fitzpatrick-McKinley offers an engaging array of ideas and a series of helpful critical evaluations of other scholars and their works. Unfortunately, her book is even less successful than her argument. The fundamental problem with the book stems from the fact that it was not published until 1999, at least six years after it had been written. Such a delay immediately raises the possibility that the work will be somewhat out of date, a suspicion confirmed by the apparent lack of any substantive revision. Thus, Fitzpatrick-McKinley treats a 1988 article by Criisemann, but not his much more detailed 1992 volume, translated into English in 1996 as The Torah: Theology and Social History o f Old Testament Law} Missing from her discussion as well are major new studies, such as: P.R. Davies, Scribes and Schools;3 B.M. Levinson, Theory and Method in Biblical and Cuneiform Law;4 C. Shams, Jewish Scribes in the Second Temple Period5 and P.G. Schmidt, Probleme der Schreiber, der Schreiber als Problem.6 It should be noted that two of these volumes even appear in the same series as Fitzpatrick-McKinleys book. The absence of adequate revision manifests itself in compositional difficulties as well as bibliographical omissions. The volume is replete with unnecessary cross-references that convey a sense of unclarity on the part of the author and muddy the readers train of thought. On
2 Frank Criisemann, The Torah: Theology and Social History o f Old Testament Law (Fortress Press 1996). 3. P.R. Davies, Scribes and Schools (Knox 1998). 4. Theory and Method in Biblical and Cuneiform Law (B.M. Levinson ed., Sheffield Academic Press 1994). 5. C. Shams, Jewish Scribes in the Second Temple Period (Sheffield Academic Press 1998). 6. P.G. Schmidt, Probleme der Schreiber, der Schreiber als Problem (F. Steiner 1994).

339]

BOOK REVIEW

343

several occasions, cross-references are adduced as proof of a point that either has already been made or will be made in the future, but it is not always clear that the section in question actually proves any such thing (e.g. 151 n. 14 cites ch. 3, 1, for a point that appears to be exactly opposite to the one made in that part of the book). Better editing would also have eliminated a number of duplications, especially with regard to quoted material. For example, the same quotation from B. Kovacs appears on three separate occasions. (29 n. 6, 61 n. 17, & 104) A duplication of some sort also appears in the authors text in the last paragraph on 130 and the first paragraph on 131. The Twelve Tables of Roman Law appear to be introduced on 62, but they have already been referred to by the author on 60. Such problems certainly do not render the authors argument incoherent, but they do make for repetitive and sometimes frustrating reading. She should have been better served by her publisher. With patience, however, the reader will be engaged and rewarded by this interesting and thoughtful interdisciplinary work. It is to be hoped that Fitzpatrick-McKinley will continue to develop her ideas and elaborate more systematically what is at its core a creative and distinctive approach to Old Testament law. Stephen B. Chapman^

Assistant Professor of Old Testament, Duke Divinity School, Durham, North Carolina.