Deuteronomy as Israel's Ancient Constitution:
Some Preliminary Reflections
Daniel J. Elazar
This article has the dual purpose of indicating how contemporary
political science can approach the study of an ancient
constitutional text and the examination of Deuteronomy as such a
constitution. Ancient constitutions are distinguished from
modern ones by devoting as much or more attention to the moral
and socio-economic bases of the polity as to the frame of
government. Deuteronomy is a classical example of that kind of
ancient constitution, designed to adapt the Torah-as-constitution
presented in the first four books of the Pentateuch to the Jewish
polity once the people are established in Eretz Israel. As such
it is both a repetition of what has been presented before and a
modification of earlier constitutional teachings. The article
begins by discussing the character of Deuteronomy and the
structure of the constitutional elements within it. It raises
the question as to whether or not Deuteronomy was actually in
force as a constitution, and why Deuteronomy was necessary to
complete the classic constitution of ancient Israel. The article
includes a schematic presentation of the Deuteronomic
constitution, divided by order, section and topic. It then
procedes to discuss how to read the text in its various parts --
the preamble, the body of the constitution, its enactment and
promulgation through a covenant renewal ceremony involving curses
and blessings, its provisions for future covenant renewal
ceremonies, a final word from Moses describing the constitution,
and an epilogue describing Moses' passing of his authority and
powers to Joshua. Each section of the constitution is discussed
in some detail in light of general principles of
constitution-making and those of the Jewish political tradition.
The whole document is presented as a covenant in the spirit and
format of Israelite constitutions.
Confronting an Ancient Constitution
It is not a new idea to suggest that the book of Deuteronomy,
known in Hebrew as Devarim (words or utterances; here best
translated statements or stated laws), is Israel's ancient
constitution. If it is indeed of Mosaic authorship as it is
presented to be, it is certainly the oldest complete constitution
in our possession, dating from the thirteenth or fourteenth
century BCE. Even if it is younger than that, from as late as the
time of Josiah (seventh century BCE), it still is a most
venerable document. Those theories that claim an even later
origin for it still place it in the period of the classic Greek
constitutions.1 Thus it, along with the Constitution of Athens,
are the two oldest such documents available to students of
government and politics.2
Deuteronomy has another distinction. Like the rest of the Torah,
it is still deemed to be fully in force as a constitution by that
portion of the Jewish people who accept the Torah as
constitution. Granted, it has been so extensively interpreted in
the intervening two and a half or three millennia that some parts
of the text are understood in quite different constitutional
terms today. Nevertheless, even more than some other parts of
the Torah, it has retained its original meaning. In any case, it
remains a vital and living constitutional document over which
there are still arguments and discussions of political
consequence. Like the rest of the Torah, it is read in its
entirety in the synagogue every year and significant sections are
read by Jews in their daily prayers.
Hence the study of Deuteronomy as a political constitution is
generally important for the study of political science,
particularly of constitutionalism and constitutional design,
because of its character as an ancient constitution that is still
in effect. It is further important to study by those for whom it
is a living constitution or potentially so.
The study of the book of Deuteronomy constitutes an introduction
to ancient constitutionalism which is at once more comprehensive
and more limited than modern constitutionalism.3 It is more
comprehensive in that ancient constitutionalism addresses the way
of life of the polity as a whole, including matters no longer
deemed to be of public concern, having to do with the behavior of
individuals and families, as of critical importance to the body
politic. The Torah for example, is concerned with the holiness
of the Israelites as foundation to the holy commonwealth.
Because this holiness is both individual and collective; it is an
important constitutional issue. Deuteronomy, however, focuses
more on the collective constitutional dimension that earlier
parts of the Torah, making it even more constitutional in the
sense that the idea came to be understood.
At the same time this ancient constitution is limited in that it
is more general in matters of government, i.e., it does not
specify institutional structures or arrangements in the way of
modern constitutions, allowing greater leeway for constitutional
interpretation or what Europeans and Latin Americans refer to as
organic laws -- less-than-constitutional arrangements of more
than normal statutory importance. These were later referred to
in the Jewish law derived from this constitution as "ordinances
of the time" (takanot ha'shaah - literally, of the hour), many of
which acquired their own constitutional status as subsidiary
constitutional expressions. In other words, Deuteronomy, like
other ancient constitutions, has to do with the ordering of the
polity, not merely of its government.
Deuteronomy, like the rest of the Torah and, indeed, Scripture in
general, is a very rich book. Its text is relatively spare, yet
every word, sentence, and paragraph is filled with nuances of
meaning. The order of words, sentences, and paragraphs carries
meaning. The apparent repetitions with subtle differences carry
meaning. Thus, a full exploration of the text requires an
intensive effort. Indeed, over the centuries hundreds of
thousands of words have been written to interpret this book of
constitutional statements. Our task here is only to understand
Deuteronomy as Israel's ancient constitution and to begin to
expose its constitutional character, content, and ordering. This
is not an interpretation of Deuteronomy, per se. It is far more
limited than that. The reader should keep this caveat and
limitation in mind.
Like the other four books of the Humash, the Five Books of Moses,
Deuteronomy is presented as being of Divine or Mosaic authorship.
In fact, Deuteronomy is distinct among the Five Books of Moses in
that it is not presented anonymously with the implicit claim of
Divine authorship but is presented as a Mosaic work based upon
the earlier Divine communications to him, the greatest of
Israel's prophets. Deuteronomy is presented as an oration -- a
long and very grand farewell address by Moses summarizing all of
his teaching. Knowing that he is about to die, Moses sets down
his teaching in one final ordered form so that his people will
have that teaching after he is gone. This step can be understood
as parallel to an earlier, similar situation in Exodus. After
Moses' father-in-law, Jethro, priest of Midian, convinces him to
share the burden of judging the Israelites and Moses appoints
judges to do so, Moses feels constrained to write down the basic
laws in the Book of the Covenant Sefar Ha Brit. Here the
reference to Moses' pending demise in -- suggests the reason for
the presentation. The lesson here is a central one: even great
leaders like Moses are human and hence must die; for their
leadership to succeed it must be embodied in a teaching and they
must be teachers. For their teaching to succeed it must be
written -- on the hearts of their followers (and) in a
constitution that will pass the teaching from generation to
generation.
Moses is referred to in the text as eved adonai, a title that
should be understood as God's prime minister, that is to say, the
head of God's government on earth. God was seen by the ancient
Israelites as their king and one who was active in their affairs.
Nevertheless, the daily governance of the edah (the Israelite
republic) was in the hands of His prime minister and the other
federal and republican institutions and officers of the polity.4
The term for constitution in ancient Israel is torah, literally
teaching, in the sense of an important and in this case Divine
teaching. In its most immediate sense, the Torah consists of
those Five Books of Moses, the first five books of the Hebrew
Bible. The first four books together can be seen as a
constitutional document with a long introduction establishing the
historic and conceptual context (Genesis), a preamble, covenant,
and fundamental set of laws (Exodus-Leviticus), and a historical
epilogue (Numbers) that includes additional fundamental laws that
grow out of the desert experience of Adat Bnei Israel (the
Assembly of the Children of Israel/Jacob -- the ancient name of
the Jewish people reflecting both the familial and federal
character of the political organization).
Deuteronomy is the restatement of the teachings of the other four
books in more systematic and properly constitutional form, with
final additions and modifications adapting the constitution to a
settled life in the promised land. The systematic format of the
book, the changes or variants on the original statement of
certain constitutional laws and principles in the other four
books have suggested to many the theory that the book was
actually compiled in the seventh century BCE at the time of
Josiah's reign in Judah, the surviving kingdom of biblical
Israel, and that it is the text referred to in II Kings 22:8.
There it is referred to as the Book of the Covenant (II Kings
23:2) and is the basis for a covenant renewed (v. 3).
Others have suggested the book is somehow connected with the
mishpat hamelukhah (law of the kingdom) promulgated by the
prophet Samuel in God's name in the eleventh century BCE, when
kingship was introduced into Israel against prophetic advice and
it was necessary to provide a constitutional framework for it.5
Still others hold that at least the core of the book
authentically dates back to the Mosaic period.6
From the internal evidence of the book it appears that the
version we have before us has integrated several different texts.
While the result is a coherent whole, there are some potential
contradictions. Biblical scholars properly seek to identify these
segments to understand how and when they were integrated. For
our purposes, however, we can take the final product as a whole,
for as such it was understood by those in subsequent generations
who saw themselves as bound by it.
The Deuteronomic constitution is presented to the people of
Israel as a covenant following the manner and form of biblical
political theory and organization. It is referred to
periodically throughout the text as a covenant, is so structured,
and concludes with a covenant renewal ceremony, a full-fledged
ceremony of covenanting. Moreover, it provides for a renewal of
the covenant every seven years (31:10-13).
Deuteronomy's structure follows the model of ancient covenants,
with 1) a historical prologue that explains the reasons for the
covenant, 2) the covenant stipulations and, where it deems
necessary, justifications for them, 3) provision for mutual
pledging, 4) enforcement clauses and punishments for
noncompliance with its terms, and 5) a statement of blessings and
curses, the former if the terms on constitutional provisions are
hearkened to and the latter if they are not.7
The term "hearken" -- shamoa in Hebrew -- is routinely used to
describe the expected human response to God's commandments,
statutes and ordinances. Hearken is an archaism in English,
featured in the King James translation of the Bible, hence shamoa
is sometimes translated as "obey" in more modern English versions
of Scripture. But they are not the same at all and abandonment
of the older word represents the abandonment of a critical
biblical concept that change the whole meaning of the text and
the whole biblical understanding of how humans act. To hearken is
very different than to obey. Hearkening is an active form of
consent whereby the individual receives an instruction by hearing
it and in the process of hearkening makes a decision to follow
it. The act of hearkening is an act of hearing, considering,
agreeing, and then acting. It is a sign of human freedom -- of
free will -- whereby in order to act humans must consciously
decide to do so, even in response to God.
Was Deuteronomy Actually in Force?
It is hard to know precisely how Deuteronomy served as the
constitution of ancient Israel, how it was interpreted and
applied. The only source of information is the Bible itself,
which discusses the composition and acceptance of the book in a
covenantal ceremony in the Plains of Moab toward the end of the
generation of the Israelites' wandering on the desert and just
before the death of Moses (28:69-30:20). The Bible also
discusses the rediscovery of what seems to have been Deuteronomy
in the days of Josiah and how Josiah, after reading the book,
ordered that its provisions, at least with regard to the Jewish
calendar and Jewish worship, be enforced. There may be some
reference to the Deuteronomic constitution in the discussion of
how King Hezekiah restored the central sanctuary for all Israel
(II Chron. 29), but that is directed more toward the issue of the
reunification of the kingdom of the Judah with the remnants of
Israelites from the shattered northern kingdom that had just been
destroyed. Beyond that, we have no idea how the book was applied
or interpreted, if at all, in biblical times.
We do know more about the fate of that constitution in the time
of the Second Commonwealth, constitutionally known as Mishnaic
times, when it formed the base for reinterpretation by the Anshei
Knesset HaGedolah and the Tanaim, the Sages of the Mishnah, who
laid the foundations for a Judaism along halakhic lines. Their
creation of halakhah, the Torah she be'al peh, or oral law, which
they claimed as being equally Sinaitic in origin as the original
Torah, the written law, was an outstanding achievement of
constitutional reform. It was undertaken in the spirit of
ancient constitutionalism and indeed, at the end of that epoch,
because of the objective conditions of the loss of Jewish
political independence, focused even more on holiness, further
reducing the political dimension of Deuteronomy by projecting its
fulfillment onto Messianic times.8
This in itself was a political act. I would venture to guess
that it was designed to redirect Jewish energy into a concern for
the minutae of holiness on a daily, indeed hourly, basis, and
thus away from futile conspiracies to revolt against Rome which,
after two major revolts and who knows how many smaller ones,
threatened to destroy the Jewish people. In other words, rather
than encourage or even allow the cutting edge of the Jewish
people to pursue politically futile and self-destructive military
efforts, Jews were encouraged, even commanded, to concentrate on
the minutae of everyday life, which took so much psychic energy
that they did not have time or strength for overt political
activities.
The Pharisees who championed this constitutional reinterpretation
succeeded because of the change in objective conditions, whereas
their rivals lost their power bases in the wake of the failed
Jewish revolts, leaving the field open to them. Even so, it took
them generations to secure their victory.9 Formally,
Deuteronomy remained in force as a constitution, but, where
necessary, its provisions were substantially reinterpreted
through the Mishnah and later the Gemarah, which together
comprised the Talmud. Even so, much of the Deuteronomic
constitution remains very close in its application to what it
originally was, even today, for observant Jews.
For the most part, the directly political parts of Deuteronomy
became the basis for discussions of what the ideal Jewish state
should be like. These discussions formed the foundation of
rabbinic and medieval Jewish political thought.10 They continued
to have influence in the modern and postmodern epochs as well.11
Constitutionally, they were important at two moments of Jewish
history after the destruction of the Second Commonwealth. The
first, in the second century of the common era, involved the
constitution of the patriarchate in Eretz Israel and the
exilarchate in Babylonia, as regimes that were organized in the
spirit of the Deuteronomic political constitution.12 The second
came in the high middle ages, between the eleventh and fourteenth
centuries, when a whole new constitutional architecture had to be
erected to provide for the self-governing Jewish kehillot
(communities) of Europe.13 In both cases the constitutional
debates and decisions insofar as we have them (and we have more
for the latter period than we have for the former) involve
frequent recurrence to Deuteronomic first principles dealing with
the relationship of kingship to Torah and people and the tasks
and roles of judges, officers and elders.
At the beginning of the modern epoch there was a further recourse
to the book of Deuteronomy, but here strictly in the realm of
political thought as emancipationist Jewish apologists sought to
present the ideal Jewish polity of the Bible in terms that were
acceptable to the new modern ideas of statehood and
self-government. In the postmodern epoch, the reestablishment
of the State of Israel led certain groups of religious Jewish
thinkers to return to Deuteronomy in an effort to find guidance
for a proper Jewish state, thus generating a new literature based
on Deuteronomy as a political constitution.14 Thus, what we have
before us is a living tradition that, like any living tradition,
has been filtered through different waves of interpretation, in
this case going back perhaps 3,000 years. Here, however, it will
be our task to try to recover the original structure of the
constitution insofar as it is possible to do so.
Deuteronomy had a similar impact on the Christian world.
Whenever Christian theolgians, political philosophers or
reformers sought biblical sources for political ideas, they
turned to Deuteronomy as a major Scriptural source.15 The use
of Deuteronomy reached its apogee during the Protestant
Reformation in the sixteenth and seventeenth centuries when the
founders of the new Swiss, Huguenot, Rhineland, Dutch, Puritan,
and Scottish commonwealths rested their polities on Deuteronomic
foundations.16 The culmination of this trend came at the time
of the American revolutionary polemical literature between 1765
and 1805. As Donald Lutz has pointed out, Deuteronomy was cited
more frequently than all citations of European political
philosophers combined, a major source for the myriad political
sermons of the period.17
Why was Deuteronomy Necessary?
Why is there a need for a restatement of the constitution
previously presented in the first four books of the Pentateuch.
Two reasons are given in Deuteronomy itself: (1) the restatement
of the constitution as applied to the Jews in their land, Eretz
Israel and (2) Moses' impending death, which requires the writing
down of his teachings in clear constitutional form.18 The
original constitution was designed to serve a nomadic people, a
people formed in the desert and moving around without a permanent
abode. Thus it emphasized portability through a political
structure based upon households (batei av) and tribes (shevatim)
assembled around the portable tabernacle (mishkan) and tent of
meeting (ohel moed) where the portable Ark of the Covenant (Aron
HaBrit) containing the portable tablets of the covenant (Lukhot
HaBrit) were kept, rather than on permanent territorial divisions
and a fixed, central shrine.
The critical sections of the Deuteronomic constitutional
restatement begin with some reference to the occupation and
settlement of the land, usually phrased as follows:
4.1 Now, Israel, hearken to the statutes and to the
ordinances which I teach you, to do them that you may live and go
in and possess the land which the Lord, the God of your fathers,
gives you.
6.1 Now this is the commandments, the statutes, and the
ordinances which the Lord your God commanded to teach you, that
you might do them in the land whither you go over to possess it.
7.1 When the Lord thy God shall bring thee into the land whither
thou goest to possess it and shall cast out the many nations
before thee...
8.1 All the commandments which I command thee this day shall be
observed that you may live and multiply and go in and possess the
land which the Lord swore unto your fathers.
By and large Deuteronomy only deals with those constitutional
laws that are extensions or modifications of the constitutional
laws presented in the first four books. It does not seem to
repeat constitutional laws unnecessarily. Thus in Deuteronomy's
discussion of the land and its boundaries, the book does not
repeat the division of the land presented in Numbers and in its
discussion of governance does not repeat the basic structure of
governance presented in Exodus. Rather it makes reference to
both at the very beginning of the book.
The question may be raised as to whether all of the changes
ostensibly needed to serve a settled population were indeed
appropriate. Two examples stand out: the first, the commandment
to centralize sacrifices and public religious ceremonies at one
central place -- the Temple -- built by Solomon (tenth century
BCE) and restored several times, the last time by Josiah (seventh
century BCE). On one hand, it could be argued that, if anything,
it was during nomadic days when presumably everyone was moving
together that sacrifice was more appropriately centralized, while
once people were settled it was reasonable to enable them to
build permanent places of sacrifice and public worship near their
dwellings. On the other hand, Deuteronomy gives as its good
reason that local sacrifices would be likely to be made at the
holy places of the pagan idolators and therefore lead to
religious syncretism. For the Bible that is the same as
idolatry. Indeed there is biblical and archeological evidence
that this happened.19
To complicate matters further there was also the real reason of
the kings of the Davidic house attempting to consolidate their
power by centralizing public worship under their wing in a
central sanctuary. David, the founder of the dynasty, was the
first to try to do this by bringing the Ark of the Covenant to
his city, Jerusalem, and designating a particular family, the
Zadokites, as the high priests, all under his protection.
Apparently, he was not powerful enough to actually build the
Temple in the face of what was no doubt great opposition to this
aspect of royal centralization. It was left to his son Solomon
to do so.20
Even so, it is clear from the sources available to us that local
sacrifice did continue, indeed with some of the negative results
to which Deuteronomy referred, until the very end of the First
Commonwealth in 586 BCE. Subsequently a compromise was reached
whereby the Temple was rebuilt and was given sole jurisdiction
over animal sacrifices while normal public worship was detached
from official and other ritual cults that could be shared by
pagans and turned into prayer that could be performed in local
houses of prayer that became known as synagogues, simultaneously
with the Temple service.21
The institution of the kingship also reflects a shift from the
earlier regime to a new one, presumably the federal monarchy
introduced by Samuel, Saul and David.22 Here there is greater
ambiguity since, as later commentators were forcefully to note,
Deuteronomy does not clearly indicate whether the appointment of
a king is mandatory or optional (17:14-20).23 The rules for
kingship can be read either way. The certain thing is that if a
king is appointed, he is bound by the constitutional laws of
kingship; he must be a constitutional monarch.
Another example of the change is that the judges and officers
originally appointed to serve tribal and familial units are now
to be territorially based at the city gates (16:18) -- the seat
of local government -- to serve non-territorialized tribes.24
The Structure and Contents of Deuteronomy
The Book of Deuteronomy is a restatement of the entire
constitution in a more systematic fashion, cast in the form of
Moses' farewell address to his people camped in the plains of
Moab just before his death. It includes a description of the
recovenanting in the plains of Moab prior to the Israelite
embarkation on the conquest of Canaan. Within the text itself,
the book is referred to as Divrei HaBrit, the Words of the
Covenant (29:8). Indeed, the entire book is presented as a
constitution which embodies and restates the original covenant.
A parallel example of this device is to be found in the
Massachusetts Constitution of 1780 which begins with a
restatement of the covenant/compact which forms the Massachusetts
body politic and continues to present the fundamental law of the
commonwealth. The Deuteronomic constitution is presented as
having been delivered before the assembly of Israel, the edah,
all at one time.
The Constitution can be viewed schematically:
SCHEMATIC OF DEUTERONOMIC CONSTITUTION
| Introduction | 1:1-5 | Presenter, time, place, and context. |
| Preamble | 1:6-3-29 | God recounts the institutional, spatial
and historical basis. |
| | 1:6-8 | Time to take possession of the promised
land. |
| | | List of promised areas west of the Jordan
River. |
| | | Reiteration of historic promise. |
| | 1:9-18 | Description of the establishment of the
institutions of federal governance.
Charge to judges to provide equal
justice. |
| | 1:19-46 | Recounting of Israel's sin when spying
out the land in the initial attempt
to enter it, with due attention to
federal niceties. |
| | 2:1-23 | Specification of the allocation of
central and southern transjordan to the
descendents of Esau and Lot. |
| | 2:23-3:2 | Description of the conquest of Gilead and
Bashan (the Golan) and God's grant of
those territories (from the valley of
Horon to Mt. Hermon) to the tribes of
Reuben, Gad, and half of Manasseh. |
| | 3:21-29 | Moses to die outside of the promised
land; Joshua reconfirmed as his
successor. |
The Body of the Constitution: "Statutes and Ordinances" 4:1-26:15 |
God and
Fundamental Principles | 4:1-40 | Call to Israel to hearken to the statutes
and ordinances as God has commanded them |
| | | The statutes and ordinances are neither
to be increased nor diminished (v. 2) |
| | | Life comes to those who cleave to the
Lord (vv. 3-4). |
| | | They are to be observed in Eretz Israel
(v. 5). |
| | | This is a wise and understanding
constitution that will win the admiration
of all peoples (vv. 6-8). |
| | | It was commanded to the assembled people
through the theophany and covenant at
Horeb (Sinai) with the ten commandments
(vv. 9-14). |
| | | No corporeality of God, hence no images
to devote worship (vv. 15-24) |
| | | Punishments for violation of this
prohibition: conquest and exile (vv.
25-28). |
| | | Possibility of repentence and promise of
restoration -- God's covenant and promise
eternal (vv. 29-31). |
| | | The uniqueness of the theophany and God's
choosing of Israel (vv. 32-39). |
| | | God's oneness, power and favor by virtue
of Israel's forefathers and the
reciprocal necessity for Israel to keep
His statutes and commandments (vv.
35-40). |
| | 4:41-43 | Moses sets aside three cities of refuge
east of the Jordan to provide protection
of persons committing manslaughter from
lynching or a blood feud. |
| | 4:44-49 | Summary. |
| | 5:1-30 | Restatement of the Ten Commandments
(comp. Exodus 20:1-14). |
| | 5:1 | Call to Israel to hearken. |
| | 5:2-5 | Recalling Horeb/Sinai covenant. |
| | 5:6-18 | Ten Commandments. |
| | | God identifies himself (v. 6). |
| | | Monotheism and prohibition of images (vv.
7-10). |
| | | Prohibition of taking the name of the
Lord in vain (v. 11). |
| | | Command to observe the Sabbath (vv.
12-15). |
| | | Command to honor parents (v. 16). |
| | | Prohibition of murder (v. 17). |
| | | Prohibition of adultery (v. 17). |
| | | Prohibition of theft (v. 17). |
| | | Prohibition of false witness (v. 17). |
| | | Prohibition of coveting (v. 18). |
| | 5:19-20 | Reference to assembly of people and their
leaders by tribes at Sinai. |
| | 5:21-30 | Explanation of why other commandments and
teachings come through Moses because
people feared direct contact with God. |
| | 6:1-25 | Restatement of Sh'ma Yisrael (Israel's
confession of faith): Fearing God and
Teaching His Commandments. |
| | | Preamble: These statutes and ordinances
are for Israel to do in the land they are
to possess (v. 1). |
| | | Subject: fearing the Lord and keeping His
commandments (v. 2). |
| | | Reward: long life and fertility in the
land (v. 3). |
| | | The confession - lst part (vv. 4-9). |
| | | Loving God - Teaching Torah to
descendents - Binding signs of loyalty
to God. |
| | 6:10-25 | Elaboration of vv. 4-9. |
| | 7:1-26 | Commandments to eliminate the Canaanites
and their idolatry upon conquering the
land. |
| | | Destruction of the seven Canaanite
nations commanded (vv. 1-2). |
| | | Prohibition of covenants or marriages
with them (vv. 2-4). |
| | | Destruction of all signs of idolatry
commanded (v. 5). |
| | | Israel's chosenness reaffirmed and
explained (vv. 6-8). |
| | | The generational basis of God's rewards
and punishments (vv. 9-10). |
| | | Israel's responsibility to keep the
covenant (v. 11). |
| | | Its reward for doing so (vv. 12-16). |
| | | God will help (vv. 17-24). |
| | | Summary: Israel's responsibility to
eliminate all idolatrous signs and images
(vv. 25-26). |
| | 8:1-20 | All sustenance comes from God and will be
provided only if His covenant is kept. |
| | | The fertility and principal products of
the land listed [important for the
observance of other commandments] and the
commandment to bless God for them (vv.
7-10). |
| | | Remember that prosperity comes from God,
not from human power (vv. 11-18). |
| | | God's punishment if he is forsaken (v.
19). |
| | 9:1-29 | Transfer of land to Israelites is because
of wickedness of Canaanites, despite
Israelite stiff-neckedness (vv. 1-6). |
| | | Recounting examples of Israelite
stiff-neckedness, esp. the Golden Calf
(the other side of the Horeb/Sinai
theophany) (vv. 7-29). |
| | | Moses' successful interventions to save
his people (vv. 18-20, 25-29). |
| | 10:1-11 | The making of the two stone tablets and
the ark to hold them, and the
organization of their care by priests and
Levites. |
| | 10:12-20 | The fundamental principles of the
constitution. |
| | | Loving the Lord and walking in His ways
(vv. 12, 20). |
| | | Keeping His commandments (v. 13). |
| | | Recognizing that heaven and earth belong
to the Lord (v. 14). |
| | | The chosenness of Israel (v. 15). |
| | | Israel should cease to be stiff-necked
(v. 16). |
| | | God does equal justice, nor can he be
bribed (v. 17). |
| | | God's justice includes widows, orphans,
and strangers (aliens); therefore yours
should as well (vv. 18-19). |
| | 10:21-11:7 | Conclusion to this section recounting how
God manifested His power in Egypt, the
Exodus, and the desert. |
| The Land | 11:8-25 | On the promise of the land. |
| | | The promise (vv. 8-9). |
| | | The character and quality of the land
(vv. 10-12). |
| | | The conditional element in the promise
(including the second paragraph of
the Sh'ma (vv. 13-22). |
| | | The extent of the land promised (vv.
23-25). |
| | 11:26-32 | The blessing and the curse set before the
Israelites. |
| | 12:1-32 | Commandment to establish a single place
of sacrifice. |
| | | Local places of sacrifice forbidden (vv.
4, 13-14). |
| | | Central site to be chosen from tribal
territories (v. 5). |
| | | Forms of sacrifice to be regulated (vv.
6-11). |
| | | Emphasis on change from system used in
desert (vv. 8-11). |
| | | Separation of sacrifices and slaughtering
for food (vv. 15-18, 20-28). |
| | | Exhortation to protect Levites who are
disempowered (because they have no
land and are not priests) (v. 19). |
| | | Prohibition of infant sacrifice and other
pagan abominations (vv. 29-32). |
| | 13:1-19 | Rejection of enticements to serve false
gods and punishment for enticers |
| | | By false prophets (vv. 2-6) |
| | | By relatives and friends (vv. 7-12) |
| | | By demagogues or popular movements (vv.
13-19) |
| | 14:1-2 | Mutilation for purposes of mourning
forbidden |
| | 14:3-21 | Laws of kashrut (permitted and prohibited
foods) |
| | 14:22-29 | Commandment to tithe |
| | | Tithe to be eaten at central place of
sacrifice (vv. 23-26) |
| | | Provision for continued support of
Levites-in-residence (vv. 27-29) |
| | | Tithe to be used for the needy (v. 29) |
| | 15:1-18 | Laws of the sabbatical year |
| | | Release of debts (vv. 2-6) |
| | | Commandment to assist needy every year
(vv. 7-11) |
| | | Release of Hebrew slaves (vv. 12-18) |
| | 15:19-23 | Sanctification of the first-born to God |
| | 16:1-17 | Commandments to observe the pilgrimage
festivals |
| | | Pesach (vv. 1-8), including
centralization of pascal sacrifice |
| | | Shavuoth (vv. 9-12) |
| | | Sukkoth (vv. 13-15) |
| | | Summary: requirement for pilgrimage
thrice yearly (vv. 16-17) |
Government and
Domains of
Authority | 16:18-20
16:21-17:13
| Organization of national judiciary |
| | | Rules of judicial procedure |
| | | Prohibition of ritual abominations in
worship (vv. 16:21-17:1) |
| | | Punishment for idolatry (16:2-7) |
| | | Rules of evidence (vv. 4-6) |
| | | Rules of capital punishment (v. 7) |
| | | Appeals (vv. 8-13) |
| Interpretation | | Priests and Levites as appellate court
of Constitution (vv. 9-13) |
| | | Provision for constitutional
interpretation in each generation (vv.
10-11) |
| Malkhut | 17:14-20 | Possible introduction of kingship |
| | | How introduced (v. 14) |
| | | How chosen (v. 15) |
| | | Must be an Israelite (v. 15) |
| | | Restrictions on king (vv. 16-17) |
| | | King must write out and keep with him a
copy of this Torah (vv. 18-20) |
| Kehunah | 18:1-8 | Status and place of priests and Levites |
| | | Neither have territorial allocations (vv.
1-2) |
| | | Both shall be supported by offerings to
the Lord (vv. 1-8) |
| | | Permanent grant of office to priests (v.
5) |
| | | Responsibilities and rights of Levites
(vv. 6-8) |
| Torah | 18:9-22 | On prophets and prophecy |
| | | Repetition of prohibitions on idolatrous
behavior with addition of prohibition
against sorcery and the like (vv. 9-14) |
| | | God will raise up prophets to whom Israel
should hearken (vv. 15-22) |
| | | Prophets came in place of meeting God
face-to-face which the people rejected at
Sinai/Horeb (vv. 15-17) |
| | | Punishment for false prophecy (v. 20) |
| | | Distinguishing true and false prophecy
(vv. 21-22) |
Criminal Procedure
and Bill of Rights:
(a) laws of
manslaughter
and murder | 19:1-13 | Communal need to establish cities of
refuge to solve the problems of the blood
feud: three cities to serve three regions
(vv. 1-3) |
| | | Law of manslaughter (vv. 4-10) |
| | | Law of murder (vv. 11-13) |
Criminal Procedure
and Bill of Rights:
(b) Judicial procedures | 19:14-21 | Prohibition on removing boundary markers
(v. 14) |
| | | Requirement of at least two witnesses in
capital crimes (v. 15) |
| | | Punishment for false witness (vv. 16-20) |
| | | Equal justice as measure for measure (v.
21) |
| | 21:1-9,22
24:7, 16
| Determining responsibility for killing
between local jurisdictions (21:1-9) |
| | | Requirement to bury those executed on the
same day (21:22) |
| | | Laws against kidnapping (24:7) |
| | | Every person punished only for his own
crimes (24:16) |
| | 20:1-19 | Laws of warfare |
| | | Procedures for mobilization (vv. 1-9) |
| | | Rules for conduct of warfare (vv. 10-19) |
| | 21:10-22 | Family law |
| | 25:5-10 | Captured women (21:10-14) |
| | | Inheritance in polygamous situations
(24:15-17) |
| | | Rebellious sons (21:18-21) |
Covenant
Obligations
beyond the letter
of the law | 22:1-4,8 | Commandment to neighborliness |
| | | Restoration of lost property (22:1-3) |
| | | Rendering assistance (22:4) |
| | | Building safety requirements (22:8) |
| | 23:20-21,25-26 | Prohibition of lending at interest to
Israelites; permission to do so with
foreigners (23:20-21) |
| | | Laws regarding enjoying neighbor's farm
produce (23:25-26) |
| | 22:5-11 | Maintenance of distinctions |
| | | Men and women commanded to dress
differently (v. 5) |
| | | Mixed sowing prohibited (v. 9) |
| | | Mixed plowing prohibited (v. 10) |
| | | Mixed weaving prohibited (v. 11) |
| | 22:6-7 | Taking bird and eggs forbidden |
| | 22:13-23 | Marriage laws |
| | 23:1
24:1-5
| Laws regarding virginity and marriage
(22:13-24) |
| | | Prohibition of relations between
stepmother and stepson (23:1) |
| | | Divorce laws (24:1-4) |
| | | Laws regarding new marriages (24:5) |
| | 23:2-9 | Naturalization Laws |
| | | Prohibitions on products of sexual
violations being members of the polity
(vv. 2-7) |
| | | Possibility for third generation Edomites
and Egyptians to join polity (vv. 8-9) |
| | 23:10-15 | Personal hygiene laws |
| | 24:8-9 | Disposal of human waste (23:10-15) |
| | | Leprosy (24:8-9) |
| | 23:16-17 | Prohibition on returning fugitive slaves |
| | 23:18-19 | Prohibition of harlotry and sodomy |
| | 23:22-24 | Vows to the Lord to be paid |
| | 24:6,10-13
17-18
| Laws of pledges: prohibition of taking
necessities for collateral |
| | 24:14-15 | Requirement of prompt payment of wages |
| | 24-19-22 | Leftovers from harvest to be left for
needy |
Local
Government | 25:1-3 | Appointment of judges and officers in
every township (v. 18) |
| | | Basic rules for adjudication (v. 19) |
| | | Goal of adjudication: justice (v. 20) |
| | | Rules of corporal punishment |
| | 25:4 | Kindness to animals: not to muzzle oxen
when treading grain |
| | 25:5-10 | Local responsibility for perpetration of
family lines |
| | 25:11-12 | Sexual modesty and domestic violence |
| | 25:13-16 | Honest weights and measures |
Marking God's
Commandments | 25:17-19
| Amalekites to be utterly destroyed |
| | 26:1-15 | Worship services to be instituted upon
settlement in the land |
| | | Offering of first fruits (vv. 1-11) |
| | | On completion of tithing (vv. 12-15) |
Covenant Curses
and Blessings | 26:16-30:20 | Enactment and promulgation of
constitution |
| | 26:16-28:68 | Conclusion of statutes and ordinances |
| | | Moses and elders of Israel command people
to keep commandments (27:1) |
| | | Commandment to write the whole Torah as a
public monument at Mt. Ebal (27:2-8) |
| | | Moses, priests and Levites consecrate
people to God and require them to hearken
to commandments (27:9-10) |
| | | Ceremony of curses for violating
commandments (27:11-26) |
| | | Blessings for observing them (28:1-14) |
| | | More curses (28:15-68) |
Covenant Renewal
on Plains of Moab | 28:69-30:20 | Moses summarizes God's good works for
Israel (29:1-8) |
| | | Assembly of entire edah for covenanting
(29:9-10) |
| | | Covenant established people (29:11-12) |
| | | God a partner to the covenant (29:13-14) |
| | | People called on to promise (29:15-17) |
| | | God will not forgive those who reject Him
(29:18-19) |
| | | Punishments for covenant violations
(29:20-22) |
| | | Explanation of why the punishments
(29:23-27) |
| | | Final punishment is exile from land
(29:27) |
| | 29:28 | This constitution openly given to
Israelites for them to live by: the
opposite of the secret things that belong
to God |
| | 30:1-10 | Promises of repentance and restoration
The greatness that God will do for Israel
(30:3-10) |
| Final Word | 30:11-20 | Constitution is close, not distant (vv.
11-14) |
| | | People are given choice between good and
evil (vv. 15-18) |
| | | Heaven and earth called upon to witness
covenant (vv. 19-20) |
| Epilogue | 31:1-29 | Moses transfers power to Joshua |
| | | People reassured that God will be with
Joshua (vv. 3-6) |
| | | Public transfer made (vv. 7-8) |
| | | Moses writes out Torah and delivers it to
priests, Levites and elders (v. 9) |
| | | Establishment of covenant renewal
ceremony every seven years (vv. 10-13) |
| | | God appears to ratify all of the above
(vv. 14-23) |
| | | Moses has newly written Torah placed in
the ark of the covenant alongside the
tablets (vv. 24-29) |
| | 32:1-43 | The Song of Moses |
| | 44-47 | And a final exhortation to the people to
place the commandments in their hearts
and keep the constitution |
| | 32:48-52 | God instructs Moses to go up Mt. Nebo to
die because of his transgressions |
| | 33:1-29 | Moses blesses the Bnei Yisrael before his
death, collectively and tribe by tribe |
| | 34 | Moses' death; Joshua assumes power; Moses
evaluated
|
How to Read the Text:
As the foregoing schematic of the form and structure of
Deuteronomy suggests, the book consists of lists of statutes
(hukim) and ordinances (mishpatim) set in historical and
theological (or theo-historical) context. Here we have not
examined the detail and character of most of the constitutional
laws promulgated. That must await another occasion.
Emphasis is placed on the context. Not only does the book begin
with a recital of the significant history of the Bnei Israel, but
segments of that history are repeated on different occasions
where relevant to introduce particular statutes and ordinances.
Moreover, history and theology are mixed.
Some scholars have referred to this as sacred history, but while
that is a partially accurate description, here we have history
designed to support the validity of the commanded legislation
both from the general sense of why God's commands deserve to be
kept or observed (shamor: the other word for human response to
God's commandments -- after hearkening comes observance) by the
people of Israel and the more specific sense, for example, in
relationship to doing social justice because the Israelites were
strangers in Egypt. The theology here is that of an omnipotent
living God who intervenes in history, indeed directs it, who has
chosen Israel to be His people for His reasons, not because of
Israel's merit, and who has covenanted with Israel to require
them to hearken to and keep a certain constitution so as to
achieve a certain way of life, that he will hold them and their
descendents accountable for the fulfillment of their side of that
covenant, that He is a God who loves, seeks and does justice and
expects His covenant partners to do the same.
There is much apparent repetition, especially in the historical-theological materials. Often it is just for emphasis. But in
many cases the material has to be read very carefully to detect
the nuances of difference which point to the different purposes
or new adaptations of the constitutional laws involved. This
takes on added significance in those sections which are
apparently repetitions of basic laws which appeared earlier in
the other four books of the Pentateuch. In those cases, the
difference of a word or two reflects an adaptation of a basic law
established for a nomadic population for use by a settled
population.
A millennium later, in the effort to develop a systematic way of
interpreting the biblical text, especially the Pentateuch, the
sages of the Talmud developed a series of rules of interpretation
which reflect this attention to nuance. They are
- Inference from minor to major, or from major to minor.
- Inference from similarity of phrases in texts.
- A comprehensive principle derived from one text, or from two
related texts.
- A general proposition followed by a specifying particular.
- A particular term followed by a general proposition.
- A general law limited by a specific application, and then
- treated again in general terms, must be interpreted according
to the tenor of the specific limitation.
- A general proposition requiring a particular or specific term
to explain it, and conversely, a particular term requiring a
general one to complement it.
- When a subject included in a general proposition is afterwards
particularly excepted to give information concerning it, the
exception is made not for that one instance alone, but to
apply to the general proposition as a whole.
- Whenever anything is first included in a general proposition
and is then excepted to prove another similar proposition,
this specifying alleviates and does not aggravate the law's
restriction.
- But when anything is first included in a general proposition
and is then excepted to state a case that is not a similar
proposition, such specifying alleviates in some respects, and
in others aggravates, the law's restriction.
- Anything included in a general proposition and afterwards
excepted to determine a new matter, can not be applied to the
general proposition unless this be expressly done in the
text.
- An interpretation deduced from the text or from subsequent
terms of the text.
- In like manner when two texts contradict each other, the
meaning can be determined only when a third text is found
which harmonises them.
The repetition here must be understood in another context as
well. Even if the text we have before us was written down early,
the number of copies would have had to be limited. Therefore, it
was designed to be taught orally to people who did not have texts
before them. Thus the repetition of critical concepts is a
teaching device, a mnemonic, that the Israelite public could
follow. In a sense that style is testimony to the fact that, as
advertised in the text itself (cf., inter alia, 30:11-14), this
is a public constitution. It was designed to be spoken, read and
learned, understood by and interpreted for all Israel. This is
another sign of the constitutional character of the document.
The people and their rulers had to know their constitution, had
to learn and be familiar with its text and contents. One of the
principal words for teaching, in Hebrew, is leshanot, to teach by
repetition, and Deuteronomy was known from the first and is so
referred to in the text (17:18) as mishneh Torah, that is to say,
the repetition or restatement of the Torah for learning purposes.
This ties in to another dimension of Israelite constitutionalism.
The style of the constitution is deliberately that of a teaching,
not simply a code or a set of constitutional laws.
Teaching as leshanot is particularly appropriate to an oral
tradition where repetition is critical to developing recognition
if not memorization of texts. Not only that, but the repetition
is done with formulas, so that the formulas themselves are
mnemonic. Examples of such formulas can be found throughout the
book. A few were presented earlier in connection with the
land-related laws. The formulas are repeated as introductions to
major sections of the constitution.
The Text in its Parts
The first five verses of the book are an introduction indicating
who is presenting the constitution, when and where, and in what
context. In a sense it is outside the constitution proper but,
in the manner of the Torah as teaching is needed to give us the
appropriate framework.
Beginning with Chapter 1, Verse 6, and continuing until the end
of Chapter 3 we have a preamble, a summary of the history of the
Israelites and an indication that it is time to take possession
of the Promised Land. The areas that constitute the land are
listed and God's historic promise of the land to Israel is
reiterated. The preamble also includes a description of the
established institutions of federal governance, the institutions
of the tribal federation, and the requirement that judges provide
equal justice. The preamble concludes with the information that
Moses is to die outside the Promised Land and Joshua is
reconfirmed as his successor who will lead the Israelites across
the Jordan.
The body of the constitution, referred to as the hukim and
mishpatim (statutes and ordinances), is presented in Chapters 4
through 26:15. It is followed by a section describing the
enactment and promulgation of the constitution, at first by
presenting the covenant curses and blessings (21:16 to 28:68),
then through a covenant renewal ceremony (28:69 to 30:20). The
ceremony is concluded with a final word (30:11-20), emphasizing
that the constitution is close to the people and not distant from
them, that through it the people are given the choice between
good and evil, and that heaven and earth are called upon to
witness the covenant just made. The covenant ceremony is
followed by an epilogue (Chapters 31-34) in which Moses transfers
power to Joshua, summarizes his teaching in the Song of Moses,
blesses the Bnei Israel, collectively and tribe by tribe, and
then goes up Mt. Nebo to his death and Joshua assumes power.
The book describes how Moses assembled the people in the plains
of Moab after they had conquered the east bank of the Jordan, to
expound (ba'er 1:5) the Torah as constitution as a prelude to
their occupying the land which God has designated as theirs
(1:6-8). The constitution, then, is to apply to the Israelites
in their land, first and foremost. The land is defined, albeit in
the relatively vague way of the desert world, by listing the
regions which constitute it (the Arava, the Har or hill country,
the Shefela, the Negev, the seashore, the land of the Canaanites,
and Lebanon as far as the Euphrates). The Euphrates is the only
actual boundary mentioned and even it rather vaguely. In an
oasis culture, space perceptions are based upon the
identification of core areas whose outer limits remain somewhat
vague. Along with the geographic description, God's promise of
the land to Israel through Abraham, Isaac and Jacob and their
descendants is reaffirmed (1:8).
The Preamble sets forth (1:9-18) sets forth the governmental
framework of the Israelites under the Mosaic Constitution,
namely, that of a tribal federation:
Get you, from each one of your tribes, wise men, and
understanding, and full of knowledge, and I will make them
heads over you. And ye answered me, and said: "The thing
which thou hast spoken is good for us to do." So I took the
heads of your tribes, wise men, and full of knowledge, and
made them heads over you, captains of thousands, and captains
of hundreds, and captains of fifties, and captains of tens,
and officers, tribe by tribe. And I charged your judges at
that time...the judgment is God's and the cause that is too
hard for you, you shall bring unto Me and I will hear it
(13-17).
Moses reviews the history of Israel in terms of God's direct
intervention on their behalf -- militarily, demographically and
economically. He specifies the structure of government as
originally proposed by Jethro, his father-in-law, but with a
major difference. Whereas Jethro suggests that Moses appoint
subordinate officers (Exodus 18), when Moses writes the
appropriate clauses into Israel's constitution, he provides that
the tribes shall themselves elect their officers (1:13). Moses
only appoints the judges to administer justice through the Torah.
He also reviews the Israelites' failures, all within the context
of the functioning tribal federation. He culminates with the
Israelite acquisition of the territories east of the Jordan and
its allocation among the tribes.
Moses repeats the history of their journey, Israel's sins of
rebellion against God and their punishment, and the first
conquests in the transjordan (1:19-3:29), giving careful
attention to the constitutional niceties. For example, in spying
out the land: "I took twelve men of you, one man from each tribe"
(23). He explains the long wandering and the reason for the
Israelite occupation of the east bank, concluding this section
with God's denial of certain east bank territories to Israel,
having granted them to related nations, and the allocation of
others to the tribes of Reuben, Gad, and half of Menasseh in
return for their promise to participate in the conquest of the
west bank.
In sum, the preamble sets forth the basic principles of the
constitution, themselves paradigmatic of the covenantal polity:
- That God is Israel's sovereign.
- That Israel is to possess its promised land but no more than
its promised land.
- That the Israelite polity is to be a federal constitutional
republic.
- That the Israelite polity is to be committed to equal justice.
The constitution that follows is organized around these four
principles in that order.
Chapters 4 through 11:7 deal with the commandments to love, fear,
worship, and hearken to God. Chapter 11:8 through 16:17 deal
with the land and the commandments, statutes, and ordinances
related to it. Chapters 16:18 through 21 deal with the system of
government and domains of authority in the edah. Chapters 22
through 26:15 deal with the doing of justice. While there are
some verses in these chapters that seem out of place, at this
point in our analysis we cannot conclude whether they are indeed
out of place or whether they require closer reading to understand
why they are placed where they are.
The second section of the constitution, the restatement of the
statutes (hukim) and ordinances (mishpatim), begins at the
beginning of Chapter 4. The traditional formula calling upon
Israel to hearken (Yisrael shema) unto those statutes and
ordinances, is used. The constitution is presented as necessary
to sustain the very life of the Israelites and their claim to the
land that God has given them. The statutes and ordinances are
presented as complete and permanent and the constitution itself
commands the Israelites not to add or diminish them (4:2) since
they are God's commandments (mitzvot). However, this provision
is modified later by another allowing, even commanding,
interpretation by the judges and authorities of each generation
(17:10-11). There is an emphasis on teaching (verses 1 and 5) as
an essential element of the constitutional system, in essence
that a constitution is not merely a written document but
something that is taught to the entire people.
The statutes and ordinances are introduced as being those of a
great nation and a wise and understanding people, that will be
recognized as such by the other peoples of the world (4:6-8).
In Chapter 4, Moses reminds them of the Sinai Covenant
(consistently referring to Sinai by its other name, Horeb) with a
full description of the theophany that took place there (v.
10ff).25 He presents his description in the context of praise for
the genius of the Israelite constitution and appropriate warnings
with regard to the Israelite propensity to violate it. Here
Moses emphasizes that God declared His covenant to them,
commanded them, while at the same time demanding that he (Moses)
"teach you (the Israelites) these statutes and ordinances." There
is no discussion here of the elaborate negotiations and consent
procedures described in the original description of the Sinai
Covenant in Exodus.
This is the second great constitutional climax in the Torah,
repeating as it does the Ten Commandments and the first paragraph
of Sh'ma Yisrael. Let us recall that the commandments are
referred to as dibrot (authoritative statements) and the book as
a whole as Devarim. It is through dibrot that we reach dvarim.
The Israelites are commanded to teach this constitution to their
children. At this point Moses describes once again the covenant
at Horeb/Sinai, the first commandment of which is to reject all
idolatry. This is presented as a teaching for all generations.
It is also presented as one that will be violated, leading to
exile from the land, a further punishment, followed by repentence
and ultimate redemption.
Then, as if to make a point about God's justice, Moses tends to a
prosaic but vital detail of governing. He sets aside three
cities of refuge east of the Jordan (4:41-43).
He then returns to the principal business at hand and restates
the Ten Commandments. In describing the process of covenanting
at Horeb/Sinai and explaining why it was the way it was, he
summarizes the message in what Jews now use as the first
paragraph of their most important confession of faith, the Sh'ma
Yisrael (6:4-9) -- literally, "Hearken Israel." The portion
concludes by reiterating that the Israelites are an am segula
(specially set aside people) who must know that their God is a
faithful God, who maintains His covenant and its hesed (dynamic
covenant love) for those who reciprocate by loving Him and
observing His commandments unto the thousandth generation. Hesed
is a critical covenant concept. It prevents the covenant from
becoming a mere contract, narrowly interpreted by each partner
for his benefit alone, by adding a dynamic dimension requiring
the parties to act toward each other in such a way as to
demonstrate their covenant love, i.e., beyond the letter of the
law.26
Chapters 6-11 deal essentially with remaining faithful to God,
especially after settling in the land, where the temptations will
be great to worship other gods (associated with local sites) and
thereby violate God's commandments. Moses goes into great detail
with regard to the temptations and what would be considered the
violations. The conclusion to this section, verses 10:21 through
11:7, recount how God manifested his power in Egypt in the course
of the Exodus and throughout the forty years in the desert in a
final reiteration of how Israel witnessed God's power to
reinforce the previous statutes and ordinances.
The second section, beginning with Chapter 11:8, deals with the
land. It begins with a discussion of God's promise of the land
to Israel. It describes the character and quality of the land,
emphasizes the conditional element of the promise, and specifies
the extent of the land promised. What follows thereon are the
constitutional laws that are particularly related to the land
including the commandment to establish a single place of
sacrifice (Chapter 12), the commandment to reject local
land-related idolatrous customs (13:1-14:21), the commandment to
tithe from the produce of the land (14:22-29), the laws of the
sabbatical year (Chapter 15:1-18), and the observance of the
pilgrimage festivals (16:1-17). Chapter 14 also sets forth the
dietary laws, combining them with the laws of tithing to insure
that the entire population is not only kosher but is fed.
The third section deals with government and domains of authority.
It begins (16:18-17:13) with the establishment of civil
government whose principal function is adjudication. The
constitution specifies the basic rules of adjudication, its goal
of achieving justice, the rules of judicial procedure, the rules
of evidence, rules for capital punishment, the establishment of
an appellate system, and provisions for interpreting the Torah in
each generation.
The text then turns to the three domains (ketarim) into which the
Torah divides governing authority. The Israelite polity was one
of separated but shared powers. It was so built that power never
could be concentrated in a single human authority. Because the
Jewish polity embraces a complete civilization including its
religious dimension, even prior to the classic separation of
powers into executive, legislative, and judicial, the edah
separated spheres of authority, known classically in Hebrew as
the three ketarim (literally: crowns). The clearest expression
of that separation was to be presented a millennium later in the
Mishnah Pirkei Avot (Sayings of the Fathers), Chjapter 4, which
designates them keter torah (the Crown of Torah), keter kehunah
(the Crown of Priesthood), and keter malkhut (the Crown of
Kingship or civil rule). That verse assumes that Jews in the
time of the Second Commonwealth understood that authority and
power in their polity were divided among these three ketarim.27
While the specific terms are post-biblical, the division was
present from the days of the desert.28 It is the basis of the
discussion of governance in Deuteronomy where it is taken for
granted.
The keter torah is responsible for the communication of God's
will to the edah. In the Bible, Torah was communicated to the
edah first through the Eved Adonai (God's Chief Minister, a title
bestowed only on Moses and Joshua), then through the ro'eh (seer)
and the neviim (prophets -- singular, navi).
Understood from a political perspective, the keter kehunah is
responsible for enabling the edah to communicate with God,
whether through sacrifices, prayer, or whatever. This domain is
explicitly separated from the keter torah by a separate covenant
with Aaron and his sons.
Oldest of the all is the keter malkhut, which deals with the
civil dimension of the edah and which is responsible for the
tasks of normal governance. Its first separately articulated
representatives were the zekenim (elders), an institution that
dates back at least to the Egyptian bondage (Exodus, Chap. 6),
and their principal officers, the nesiei haedah (the magistrates)
and continues through the shofetim (judges), and melakhim
(kings). Each of these offices is recognized in the Bible.
Each of these ketarim is independent of the others, drawing its
authority directly from Divine mandate, though both in theory and
in practice the bearers of each keter must work with the others
in order to govern the edah. The division appears without those
convenient labels in the Torah itself and, in the manner of
Scripture, the constitutional laws applicable to each of the
domains are here presented with no explanation of general
principles.
Malkhut, the domain of civil rule, is the first to be discussed
and since the overall institutions of the keter have been
discussed elsewhere, the discussion is confined to the
possibility of introducing a king into Israel. Chapter 17:14-20
specifies that a king can only be introduced by popular demand
and indeed somewhat tainted demand at that since it would be a
popular demand to be "like all the nations that are around me"
(v. 14). That is always considered a form of backsliding in the
Bible. Nevertheless, permission is given to appoint a king, but
that he must be chosen by God (v. 15) and he must be an
Israelite, never a foreigner (v. 15).
This is followed by a list of restrictions, principally devoted
to limiting the king's ability to accumulate wealth or to take
many wives which has a dual meaning, being both anti-hedonistic
and anti-foreign alliances. As the Bible recounts subsequently
and as we know from other sources, royal marriages were
frequently part of the conclusion of alliances. Indeed, it has
been suggested that Deuteronomic restrictions were introduced by
the prophets in response to the problems of Solomon's kingship.
The king is commanded to write out a copy of "this Mishneh
Torah," presumably the whole Book of Deuteronomy, apparently in
the presence of the priests and Levites, so that he will have no
excuse for not knowing the law. The character of Israelite
constitutionalism is no better illustrated than here:
It shall be when he sitteth on the throne of his kingdom that
he shall write a copy of this law in a book, out of that
which is before the priests and the Levites. And it shall be
with him and he shall read therein all the days of his life
that he may learn to fear the Lord his God, to keep all the
words of His Constitution and statutes to do them. That his
heart be not lifted up above his brethren, that he not turn
aside from the commandments to the right or to the left, so
that he may prolong his days in the kingdom, he and his
children, in the midst of Israel (18-20).
It is clearly assumed that the tribal structure described earlier
will continue to exist even if there is a king. Indeed, the only
change made in it is that referred to in Chapter 16 assigning
judges and officers to territorial settlements rather than
households and nomadic tribes.
The covenant with David and his house is not the first covenant
of the keter malkhut. At the very least, the mishpat hamelekh in
Deuteronomy is the foundation of that keter, though, in fact, the
foundation goes back earlier to the exodus itself. What is
important about mishpat hamelekh is that the covenant of keter
malkhut is not made with the king but is made with the people who
are empowered to appoint a king if they so choose. Indeed, one
can contrast the three covenants behind the three ketarim: the
covenant for keter torah is made with the people through the
mediation of the prophet Moses; the covenant with the priests is
made with Aaron and his family and embraces the tribe of Levi in
a subsidiary fashion; while the keter malkhut is made with the
people without a king or equivalent leader being present. Only
in a later epoch is an actual king introduced.
The issue of kingship is a controversial one in the Jewish
political tradition. Does Deuteronomy mandate the appointment of
a king once the edah is settled in its land or is it a
discretionary matter? Biblical commentators and political
thinkers from the Talmud to the present have divided on the
issue. The text itself is ambiguous and can be read either way.
Aside from the ambiguous statement about placing a king at the
head of the keter malkhut, the rest of the passage concerns
itself with the constitutional restrictions to be imposed upon
any such office should it be established. Later commentators
juxtaposed this passage with I Samuel 8 where the Prophet Samuel
warns the people of the arbitrary powers that a king is likely to
take unto himself, most of which stand in violation of the
Deuteronomic constitution. Some later commentators used I Samuel
8 as the basis for determining the scope of the king's powers,
although the biblical text is plain. It is a warning against
usurpations. Certainly it does not contradict the constitutional
strictures of Deuteronomy 17.29
From the positioning of the verses it is clear that shofetim
(judges, in the sense of magistrates) and shoterim (civil
officers) are more important than kings, or at least more basic.
Indeed, when the sages divided the Torah into weekly portions
they started the portions relating to the institutions of
governance with the verse about shofetim and shoterim. Hence the
portion is named Shofetim. Of course, shofetim and shoterim,
while basic to any regime, represent the classic regime of the
desert. Kingship, even federal kingship, is a step away from
that classic regime to what became a contrasting classic model,
but was not the original one.30
Deuteronomy turns to the keter kehunah in Chapter 18 where in
Verses 1-8 the status, place, and perquisites of priests and
Levites once Israel is settled in its land are adapted to the new
situation and reaffirmed. Here, too, the only matters dealt with
are changes from the basic constitutional laws of the first four
books.
Verses 9-22 of Chapter 18 deal with the keter torah, specifically
prophets and prophecy. In a way this is a new institution and is
presented as such, that God will raise up prophets to whom Israel
should hearken, that prophets were introduced in place of
requiring the people to meet God face to face, since the people
had rejected that possibility at Horeb/Sinai out of discomfort
with that confrontation. Punishment for false prophecy is
indicated, as is a way to distinguish between true and false
prophecy.
Chapters 19-26 contain the body of the constitutional laws
dealing with civil and criminal matters, family relations,
warfare, citizenship and the like. This section begins by
providing what is in effect a "bill of rights" for those accused
of crimes (Chapter 19 plus selections of Chapters 21 and 24) with
appropriate judicial procedures and the laws of warfare (Chapter
20) and family law (25:5-10).
This "bill of rights" offers extensive protections for
individuals, aliens as well as Israelites. It has been properly
celebrated as the founding cornerstone of the Western edifice of
rights. At the same time it is an ancient rather than modern set
of protections directed essentially to the people as a whole as a
way to make them holy, rather than to individuals as a way to
make them free. In other words, God commands the Israelites as a
body and individually to behave with justice and fairness because
that is the way for them to be holy, not because these are
abstract individual or human rights. True, it is implicit that
every human is entitled to such treatment because he or she is
created in the image of God (Genesis 1:26-27). Nevertheless, the
constitutional emphasis is on the holiness of the people obliged
to conduct themselves in this manner. Indeed, for the Torah,
rights are founded in the obligations that people have assumed
through covenant. Clearly, for a holy people those obligations
emphasize a certain standard of behavior toward other humans
created in God's image.31
The discussion of how the edah is to make war (20:1-9) is an
excellent example of the formal procedures required by the
constitution if the Jewish polity is to function in a
constitutional manner. When the people assemble to go out to
war, the priest, apparently the high priest, is to speak to them
to remind them that God is with the people and will fight for
them. Then the civil officers (shoterim) are to speak to the
members of the mobilized force to formally proclaim the
legitimate reasons for leaving the ranks specified in the
constitution. Those who have just completed building a new
house, planting a new vineyard, or taking a new wife and who have
not yet had the opportunity of enjoying the fruits of their acts
are excused from service. Also excused are the fearful and
fainthearted. Each individual must declare himself to take
advantage of these exemptions. Thus the wise exemption of those
distracted or psychologically unfit for a military campaign is
modified by the necessity for each man seeking exemption to do so
publicly before his fellows.
This is done before civil officers. Only after they have offered
the possibility to be exempted from service is the mobilized
force turned over to army commanders who will then be appointed
to command. In other words, most of the preparations are
undertaken by civil authorities. Even where prophet and priests
are not involved, civil officers are. The army is first prepared
for battle psychologically before the army commanders are given
authority, probably on the assumption that once the hierarchy of
army command is established, whatever the nominal rights people
have to leave, in hierarchical systems those rights are far more
difficult to exercise.
The final section deals with the doing of justice, including
commandments for neighborliness (re'ut), that is to say, how to
show hesed (loving covenant obligation, the dynamic dimension of
brit) to one's re'im or neighbors and to other living creatures,
laws of marriage, personal hygiene, immoral sexual practices,
commerce, support for the poor and needy. In two places the laws
of hesed are extended to animals.
Provisions are made for the local administration of justice under
the new territorial organization (25:1-5). With the body of the
constitution before the people, the document concludes with the
formal renewal of the covenant between God and Israel. The act
begins with the presentation before the people by representatives
of all three domains: Moses, the elders, the priests and the
Levites, of the curses and blessings associated with violating
the constitutional covenant (curses) or keeping it (blessings)
(26:16-28:68). Moses and the elders instruct the people to keep
the commandments and to write the whole Torah on a public
monument after entering the land so that it will be visibly
accessible to all Israel. Then Moses, the priests and the
Levites consecrate the people to God and require them to hearken
to the commandments.
All this is in preparation for the covenant renewal ceremony on
the plains of Moab (28:69-30:20). Covenant renewal takes place
before the assembly of the entire edah -- men, women and children
-- and representatives of all three ketarim. The covenant
reestablishes the people, affirms God as a partner to it, and
requires the people to promise to be faithful partners on their
part. The punishments for covenant violations, including exile
from the land, are specified.
The conclusion of the covenant emphasizes that the constitution
was openly given to the Israelites for them to live by. It is
the opposite of those secret things that belong to God (29:28).
At the conclusion of the covenant ceremony there is a final word
reemphasizing that the constitution is close and not distant,
that the people are given a choice between good and evil, and
that heaven and earth witnessed the covenant, seals the matter.
In an appropriate conclusion for a covenant, Chapter 27 provides
for the writing down of the entire constitutional corpus once the
Israelites are in their land and for a ceremony evoking curses on
any violators of its provisions. The blessings and curses
receive greater elaboration in Chapter 28 which concludes (v.
69): "These are the words of the Covenant which the Lord
commanded Moses to make with the Israelites in the land of Moab
beside the Covenant he made with them at Horeb." Moses then
makes a concluding summation of the covenant with its promises
and obligations (Ch. 29-31), concluding with the formal
designation of Joshua as his successor, the writing of the
constitution and its placement in the Ark of the Covenant, and
the provision for a public ceremony to renew the covenant every
seven years at the end of the sabbatical year during Succot (the
Feast of Tabernacles):
And Moses commanded them saying: "At the end of every seven
years, in the set time of the year of release, the feast of
tabernacles, when all of Israel is come to appear before the
Lord thy God in the place which He shall choose, thou shalt
read this law before all Israel in their hearing. Assemble
the people, the men and the women and the little ones, and
thy stranger that is within thy gates, that they may hear,
and that they may learn, and fear the Lord your God, and
observe to do all the words of this law; and that their
children, who have not known, may hear, and learn to fear the
Lord your God, as long as ye live in the land whither ye go
over the Jordan to possess it" (31:10-13).
The Epilogue
What follows in Chapters 31 through 34 is in the way of an
epilogue. Moses transfers power to Joshua quickly; he writes out
the Torah and delivers it to priests, Levites, and elders; he
establishes a covenant renewal ceremony to take place every seven
years; God ratifies all this and the written Torah is placed in
the Ark of the Covenant alongside of the commandments. Moses
then presents his elaborate poem known as the Song of Moses,
along with a final exhortation to the people to keep the
commandments and to be faithful to their constitution (Chapter
32). In Chapter 33 he blesses the Bnei Israel before his death
collectively and tribe by tribe. In Chapter 34 his death is
described, as is Joshua's assumption of power. The book and the
whole Pentateuch is closed with an evaluation of Moses' greatness
and uniqueness as a prophet.
As he approaches death, God gives Moses a glimpse of the future
retrogression of Israel and Moses delivers to them an eloquent
poetic warning followed by his blessing, tribe by tribe, in a
federal spirit, after which he goes up to Mount Nebo, dies, and
is buried "where no man knoweth his sepulchre." In other words,
the founder, prophet, statesman remains to guide his people only
through the covenant he has obtained from God and the
constitution he has written in accordance with it.
The Book of Devarim, in sum, is presented as a covenant. The
term itself is used in one-third (11 of 34) of its chapters and
is implicitly present in virtually all of the others. It follows
the standard formula: a historical prologue, a statement of
responsibilities, specific provisions, blessings and curses with
regard to its maintenance or violation, and a covenant ceremony
accepting it with provisions for similar ceremonies for its
periodic renewal.
Conclusion
The Pentateuch presents us with four paradigmatic covenants: with
Noah, with Abraham, at Sinai, and on the plains of Moab. The
first is a covenant with all mankind, the second a promise to
generate a specific people to be holy and to give them a land,
the third establishes the people prepared to receive a
constitution, and the fourth is a covenant set within the
constitution itself. The general thrust of these covenants was
to bring the existing tribal system with its political structure
into the framework of a national constitution, comprehensive in
character and designed to sanctify all dimensions of human life,
in order to build the holy commonwealth. While, in light of our
knowledge of the role of covenants and covenant ideas in West
Asia at the time, we can assume that the Israelite tribes were
culturally attuned to this turn of events, nevertheless, the
covenantal process brought about a certain redesign of the
political structure itself and created a basis for further
redesign in later epochs of Jewish history, biblical and
post-biblical.
Students of the Bible are all too aware of the problems that have
been raised regarding its textual construction, particularly in
the Pentateuch. Here we have taken the Torah as an integrated
work. However -- and whenever -- it was authored, its integral
character as a teaching is its most important feature from a
political perspective, particularly since, from that perspective,
it makes good sense. The student of politics can leave extensive
textual probings to others; the impact of the biblical teaching
on human civilization comes not from such matters but from the
magisterial and profound character of the work as a whole, of
which the sequence of covenants is one excellent manifestation.
In the last analysis, the Pentateuch constitutes one
comprehensive constitutional document in two parts. The first
four books which include the two sets of basic covenants
establishing Israel as a people, those with Abraham and that at
Sinai, and its auxiliary additions, and the second, the
summarization and restatement of the first under the changed
conditions of permanent settlement in the land of Israel. These
two sections are profoundly the same and profoundly different.
Together they present the foundations of the two classic regimes
of the Jewish polity. The first is the classic Adat Bnei Yisrael
(Assembly of the Children of Israel) instituted in the desert, a
democratic federal republic directly governed by God through his
eved adonai (the Lord's minister or prime minister). The second
is the federal monarchy with a human king, albeit one chosen by
God. In the first, sacrifices can, at least in principle, be
performed in the tribes as well as before the common tabernacle.
In the latter they are to be centralized at a common holy place.
On the other hand, these differences may not be as great as they
seem at first blush. Under the constitution of the classic edah,
was not God king? Was not the introduction of human kingship not
merely a part of the transfer of God's direct rule to human
agency, not only to kings but also to elders, priests and
prophets? Was not there always a central place of sacrifice and
worship, albeit a portable one in the days of the desert, so that
the real change in Deuteronomy is the establishment of a fixed
site now that Israel is in its own land, with certain precautions
against idolatry in a land where every three and rock could
influence the superstitious. Moreover, there is no precise
commandment to build the Temple, only to establish a central
shrine.
Still, the actual consequences of the establishment of kingship
and Temple went far beyond the original intent of the
constitution to transform the simple tribal democracy of ancient
Israel into something else again. Subsequent generations of Jews
have struggled with the problem of synthesizing various
manifestations of these two regimes. The results have been at
times more hierarchical and at others more egalitarian, at times
more oligarchic and at others more democratic, at times more
theocentric (in the original sense) and at others more civil.
These are questions which need to be explored in another context.
This paper has undertaken a far more modest task. It has merely
attempted to point out the constitutional character of one of the
documents involved and how its study should be incorporated into
the corpus of the political scientific study of constitutions.
Notes
1. For the various theories dating Deuteronomy, see: G.R. Berry,
"Date of Deuteronomy," Journal of Biblical Literature and
Exgesis, LIX (1940): 133-139; George Dahl, "The Currently
Accepted Date of Deuteronomy," Journal of Biblical Literature,
XLVII (1928): 358-379; M. Margolis, Hebrew Scriptures in the
Making (1922).
2. On the Constitution of Athens, see Ernest Barker, Greek
Political Theory: Plato and His Predecesors (New York: Barnes and
Noble, 1960); Aristotle, The Athenian Constitution, the Eemian
Ethics, on Virtues and Vices. Translated by Harris Rackman
(Cambridge, Mass.: Harvard University Press, 1981).
3. On ancient versus modern constitutionalism, see Leo Strauss,
Liberalism, Ancient and Modern (Ithaca, N.Y.: Cornell University
Press, 1989); Natural Rights and History (Chicago: University
of Chicago Press, 1953); Charles MacIlwaine, Constitutionalism,
Ancient and Modern (Ithaca, N.Y.: Cornell University Press,
1947).
4. On the government of biblical Israel, see Daniel J. Elazar and
Stuart A. Cohen, The Jewish Polity: Jewish Political Organization
from Biblical Times to the Present (Bloomington: Indiana
University Press, 1985), especially Epoch 3; and Daniel J.
Elazar, "The Polity of Biblical Israel," in Daniel J. Elazar,
ed., Authority, Power and Leadership in the Jewish Polity: Cases
and Issues (Lanham, Md.: Jerusalem Center for Public Affairs and
University Press of America, 1990).
5. On Mishpat HaMelukhah, see Salo W. Baron, A Social and
Religious History of the Jews, 2nd edition, vol. 1 (Philadelphia:
Jewish Publication Society, 1952), pp. 63-101; Simon Federbush,
Mishpat HaMelukhah (Jerusalem: Mossad HaRav Kook, 1973);
Encyclopedia Judaica, 12 (Jerusalem: Keter, 1971), pp. 136-151.
See also Daniel J. Elazar and Stuart A. Cohen, The Jewish Polity,
Part I, Epoch IV; G.E. Mendenhall, "Ancient Oriental and Biblical
Law," The Biblical Archeologist, 17:2 (1954): 26-46.
6. On the authorship of Deuteronomy, see Richard J. Clifford,
Deuteronomy; with an Excursus on Covenant and Law (Wilmington,
Del.: M. Glazier, 1982); G. von Rad, Studies in Deuteronomy
(Eng. tr.; London: SCM Press, 1967).
7. On ancient covenants, see: Delbert Hillers, Covenant: The
History of a Biblical Idea (Baltimore: John Hopkins Press, 1969);
George Mendenhall, Law and Covenant in Israel and in the Near
East (The Biblical Colloqium, 1955) and "Covenant Forms in
Israelite Tradition," Biblical Archeologist, XVII (1959): 50-76.
8. On the halakhic reinterpretation of the Torah, see Elazar and
Cohen, Epoch 6; Salo Baron, A Social and Religious History of the
Jews (Philadelphia: Jewish Publication Society, 1952), vol. VI.
9. On the Pharasaic shift, see Elazar and Cohen, Epochs 7 and 8;
Louis Finkelstein, The Pharisees: Their Origin and Their
Philosophy (Cambridge, Mass.: Harvard University Press, 1929);
George Foote Moore, Judaism in the First Centuries of the
Christian Era, the Age of the Tannaim (Cambridge: Harvard
University Press, 1958); Jacob Neusner, From Politics to Piety;
the Emergence of Pharisaic Judaism (Englewood-Cliffs, N.J.:
Prentice-Hall, 1973).
10. On medieval discussions of the ideal Jewish polity, see
Gerald Blidstein, Political Concept in Maimonidean Halakhah
(Ramat Gan, 1983) (Hebrew); Moses A. Maimonides, Guide of the
Perplexed in Medieval Political Philosophy. Edited by Ralph
Lerner and Muhsin Mahdi (New York: The Free Press, 1963); David
Polish, The Rabbinic Views on Kingship -- A Study of Jewish
Sovereignty (New York: Ktav, 1989); Martin Sicker, The Judaic
State: A Study in Rabbinic Political Theory (New York: Praeger,
1988); Leo Strauss and Joseph Cropsey, History of Political
Philosophy, 2nd ed. (Chicago: Rand McNally, 1963). See especially
the chapters on Maimonides and Joseph Albo.
11. On modern and postmodern uses, see Moshe Hess, Rome and
Jerusalem: A Study in Jewish Nationalism. Trans. and with
introduction by Meyer Waxman (New York: Bloch, 1943); Moses
Mendlessohn, Jerusalem, or, On Religious Power and Judaism.
Trans. by Allen Arkush (Hanover: University Press of New England,
1983); Joseph Salvador, Histoire des institutions de Moise et du
peuple hebreu 3eme (Paris: M. Levy, 1862); Mayer Saltzberger, The
Am ha-Aretz, the Ancient Hebrew Parliament, a Chapter in the
Constitutional History of Ancient Israel (Philadelphia: J.H.
Greenstone, 1910); Baruch Spinoza, Theological-Political Tractate
(1670).
12. Jewish Polity, Epoch 9, pp. 137-145; Moshe Beer, The Amoraim
of Babylonia: Their Economic and Social Structure, 2nd ed. (Ramat
Gan: Bar-Ilan University, 1982).
13. Menachem Elon, Ha-Misphat ha-Ivri: Toldotav, Mekorotav,
Ekronotav (Jewish Law: History, Sources, Principles), vol. 1
(Jerusalem: Magnes Press, 1973); Jewish Polity, Epoch 11, pp.
160-177.
14. Chaim Hershensohn, Eleh Divrei HaBrit (Haboken, N.J.:
1918-1921), 3 vols., and Malkhi BaKodesh (Hoboken, N.J.:
1923-1928), 6 vols.; R. Shaul Yisraeli, Ha-Torah ve-Ha-Medinah
(Rabbinic Council of Ha-Po'el Ha-Mizrachi, 1949, 1962).
15. Johannes Althusius, Politics, trans. Frederick Carney
(Boston: Beacon Press, 1964); Champlain Burrage, The Church
Covenant Idea: Its Origins and Development (Philadelphia, 1904);
E. Brooks Holifield, The Covenant Sealed: The Development of
Puritan Sacramental Theology in Old and New England (New Haven:
Yale University Press, 1974); Jean Calvin, Calvin: Commentaries,
trans. and ed. by Joseph Haroutunian, with Louise Pettibone Smith
(Philadelphia: Westminster Press, 1958); Harro M. Hoepfl, The
Christian Polity of John Calvin (Cambridge: Cambridge University
Press, 1982).
16. John Kincaid and Daniel J. Elazar, eds. The Covenant
Connection (Grenshaw: Carolina Academic Press, 1990).
17. Donald Lutz, "From Covenant to Constitution in American
Political Thought." Paper presented at Seminar on Covenants and
Constitutions of the Center for the Study of Federalism,
Philadelphia, November 8-9, 1979.
18. Compare this recognition of reality with the biblical
description of the writing down of Adat Bnai Israel's first
constitution, Sefer HaBrit (The Book of the Covenant) in Exodus,
Chapters 19-22, the concrete result of the Sinai experience with
its covenant and covenantal constitution. That action comes
after Jethro, the priest of Midian and Moses' father-in-law,
convinces Moses that he cannot judge the whole people himself but
must establish a judicial system with several levels of judges.
Once Moses was no longer fully responsible for interpreting and
applying the law in all cases, in order to have the rule of law
there had to be a written source to which all or at least all
judges could refer. Hence the Book of the Covenant.
19. S.H. Blank, "The Dissident Laity in Early Judaism," Hebrew
Union College Annual, 19 (1945-1946):1-42; J. Muilenberg, "The
'Office' of the Prophet in Ancient Israel," in J.P. Hyatt, ed.,
The Bible in Modern Scholarship (1966), pp. 79-97.
20. Cf. Daniel J. Elazar, "Dealing with Fundamental Regime
Change: The Biblical Paradigm of the Transition from Tribal
Federation to Federal Monarchy Under David," in the Marvin Fox
Festshrift, Jacob Neusner, et al., eds., From Ancient Israel to
Modern Judaism (Atlanta, Georgia: Scholars Press, 1989), pp.
97-132.
On the effects to centralized worship by David and Solomon, see
M.M. Cohen, "the Role of the Shilonite Priesthood in the United
Monarchy of Ancient Israel," Hebrew Union College Annual, 36
(1965), pp. 59-98; G. Widengreen, "King and Covenant," Journal of
Semitic Studies, 2 (i) (1957):1-27.
This whole problem can be used as an aid in dating Deuteronomy
and indeed the Pentateuch. The emphasis in the first four books
on a polity and cult for the desert suggests a very early
authorship for them or at least for the major portions of them.
Most of the constitutional material within them becomes obsolete
once Israel enters Canaan and must be reinterpreted by later
generations to be relevant to, first, a settled people and then a
non-pastoral one. The way in which these issues are put in
Deuteronomy, on the other hand, also suggests a relatively early
authorship for it. For example, the prescription for centralized
worship refers to a place "out of thy tribes" which the Lord
shall select. When the Temple was built, it was built in
separate royal territory, Jerusalem, that had remained in the
hands of the Jebusites after the original conquest and was only
conquered by David as part of his rise to the kingship, and hence
became his and never part of any tribal territory.
21. On the emergence of the synagogue, see Salo W. Baron, The
Jewish Community (Philadelphia: Jewish Publication Society,
1938-1942).
22. Elazar, "Fundamental Regime Change."
23. For a discussion of whether or not kingship is mandatory, see
David Polish, The Rabbinic Views on Kingship -- A Study of Jewish
Sovereignty (New York: Ktav, 1990).
24. On "the city gates" as the seat of local government, see M.
Weinfeld, "Judge and Officer in Ancient Israel and in the Ancient
Near East," Israel Oriental Studies, 7 (1977):65-88.
25. From a historical perspective, the Horeb-Sinai problem cannot
be so easily dismissed. Some have argued that there were two
traditions of theophany later synthesized. For our purposes,
however, we can accept the synthesis as the thrust of the book.
26. Cf. Norman Snaith, "The Covenant-Love of God," in The
Distinctive Ideas of the Old Testament, 2nd ed. (New York:
Schocken Books, 1973), pp. 94-127; Nelson Glueck, Hesed in the
Bible (New York: Ktav, 1975).
27. For a fuller discussion of the ketarim, see Stuart A. Cohen,
The Three Crowns: Structures of Communal Discourse in Early
Rabbinic Society (Cambridge: Cambridge University Press, 1990).
28. Elazar and Cohen, The Jewish Polity, traces the ketarim
through every constitutional epoch in Jewish history.
29. Cf. Polish, op. cit.
30. For a discussion of the existence of two classic models, see
Daniel J. Elazar, "The Polity of Biblical Israel," op. cit.
31. Haim Cohen, Human Rights in Jewish Law (New York: Ktav,
1984); Daniel J. Elazar, "Rights and Obligations in the Jewish
Political Tradition," Jewish Political Studies Review, vol. 3,
nos. 3-4 (Fall 1991).
