Models in Legal History: The Case of Biblical Law

Abstract

You don't have to be a postmodernist—and I am not—to take the view that the reading of ancient texts by legal historians cannot be “innocent.” All meaning is constructed: texts do not “make sense;” we attribute sense to them. And the sense we attribute is in part a function of the resources we bring to that process. Necessarily, we bring culturally contingent assumptions. We may not be able to rid ourselves of such assumptions, and restore ourselves to that state of innocence which traditionally has been identified with “objectivity.” But we can seek to lay bare those assumptions to the maximum possible degree, so that we can subject them to some process of evaluation (a process, no doubt, whose own assumptions should be subjected, equally, to critical examination).If we ask what kind of assumptions the legal historian brings to ancient texts, the most ready answer would, no doubt, be assumptions regarding typical models of legal development. We can certainly identify the operation of assumptions of this kind in the modern literature relating to biblical law. The argument of this paper, however, will be that it is not sufficient to confine ourselves, for this purpose, to “models of legal development.” That very notion encompasses more general issues—what is law? what is development?—which themselves fall for examination.