Making a Case: The Practical Roots of Biblical Law by Sara J. Milstein

Abstract

Reviewed by: Making a Case: The Practical Roots of Biblical Law by Sara J. Milstein Jessie DeGrado Sara J. Milstein. Making a Case: The Practical Roots of Biblical Law. Oxford: Oxford University Press, 2021. 216 pp. Sara Milstein’s new book provides a stimulating challenge to the hypothesis that the non-Priestly laws of Exodus and Deuteronomy were directly inspired by Mesopotamian law collections such as the Laws of Hammurabi (LH). Milstein argues instead that the laws preserved in Exodus 21–22 and Deuteronomy 12–23 reflect a complex process of adapting and expanding materials produced for scribal education in Israel and Judah during the Iron II–III periods (roughly 850–586 BCE). The introduction surveys Mesopotamian law collections and legal pedagogical texts from the third and second millennia BCE. Over the past fifty years, scholars have increasingly recognized that law collections, once referred to as law codes, neither record specific verdicts nor provide binding precedent. Rather, they both express an idealized form of justice that might indirectly inform decisions and, equally significant, function as political propaganda for the king who promulgated them. In addition to the scholarship cited by Milstein (6–12), interested readers can consult Pamela Barmash’s recently released monograph, The Laws of Hammurabi: At the Confluence of Royal and Scribal Traditions (Oxford: OUP, 2020). Chapter 1 further sketches the contents of the Mesopotamian scribal curriculum in the Old Babylonian period. This includes legal phrasebooks containing lists of contractual clauses, which students copied to gain facility with common legal phraseology, and model contracts. Also included in school curricula were fictional court cases (sometimes called model cases), which Milstein argues were used to teach legal formulations and phraseology in a livelier and more playful form. Finally, scribes in training often copied lists of casuistic laws, which were often excerpted from longer law collections but could also be innovated around a specific topic, such as rented oxen. The bulk of the work is devoted to identifying pentateuchal texts that embed pedagogical genres like those found in the Old Babylonian scribal curriculum. In chapter 2, Milstein identifies several clusters of laws in Exodus and Deuteronomy that exhibit features like the Mesopotamian fictional cases. Special attention is given to what Milstein terms the “slandered bride cluster” (Deut 22:13–19), the “manslaughter cluster” (Deut 19:4–13), and the “illicit intercourse cluster” (Deut 22:23–29). Each example embeds a longer base case featuring an innocent party, followed by several more laconic casuistic laws that cover guilty verdicts. Milstein terms the base cases Hebrew legal fictions (HLFs), which she considers an “analogous group to the Mesopotamian fictional cases” (72). These longer laws would have been independently drawn from scribal exercises and supplemented with short laws exploring guilty outcomes. Milstein identifies several potential indicators of an original pedagogical function for the base cases, including the use of dialogue, [End Page 176] colorful scenarios, and contract language. The latter point is fleshed out in more detail in chapter 3, which compares language from the HLFs to phrases attested in contracts from the Late Bronze Age city of Emar. Chapter 4 presents an ambitious reappraisal of the relationship (or lack thereof) between the legal material in Exodus 21:18–22:16 and Mesopotamian law collections. Milstein advances two separate lines of argument in this chapter. First, she observes that the compilation of laws in Exodus is both shorter than Mesopotamian law collections and covers a more restricted set of topics. In this respect, Exodus 21:18–22:16 resembles the extracts or lists of laws used in Mesopotamian scribal training more than the lengthier compositions we refer to as law collections. This leads Milstein to a second argument, which is that discontinuities and errors constitute further evidence of dependence on scribal pedagogical texts. These include a case concerning self-defense and home burglary that interrupts a law concerning stolen animals (Exod 21:37–22:3) and the placement of general talionic principles immediately after the law of accidental miscarriage (Exod 21:22–25). Overall, Milstein’s book provides an important critique of atomistic comparison between Exodus 21:1–23:5 and the Laws of Hammurabi. Namely, even if one postulates that Judean scribes accessed...