 |
|||
|
|
|||
|
Women's Rights by Signature Books; Salt Lake City
|
|||
|
Before discussing ancient Near Eastern laws about women specifically, it may be helpful to examine family organization and the legal support system built into the nomadic lifestyle in general. This chapter describes the legal environment governing shepherds' actions and relationships and the economic and legal environment in which they lived. Jacob's Herding Contracts It is not difficult to deduce from Genesis that Jacob was a novice at negotiating contracts and that his uncle Laban was crafty enough to take advantage of him. Their contracts became a source of contention between them and a major issue in their confrontation in the wilderness as Jacob was fleeing back to Canaan. The whole story of Jacob's involvement with Laban, including his marriages to Rachel and Leah, is linked to his contracts with Laban. A review of herding contracts illuminates the story of Jacob and his family in Padanaram. Old Babylonian herding contracts were drawn up once a year at shearing time, when shepherds returned the animals to their owners.1 After shearing time a new agreement remained in force until shearing time the following year. It was not unusual for a shepherd to subcontract with shepherd boys, but he would bear responsibility to the owner for the flocks.2 The owner was interested in getting his flock back with the most substantial increase possible, and the shepherd was interested in keeping the reasonable expectations of the owner as low as possible and retaining part of the surplus. Two aspects of herding were critical in negotiations: the expected attrition rate and the expected birth rate. (For simplicity I have left goats and other animals out of the calculations.) The contracts reviewed are mostly Old Babylonian contracts dating from the nineteenth to sixteenth centuries B.C. and Nuzi contracts dating from the sixteenth to the fourteenth centuries B.C. According to the consensus of scholars, the terms of these contracts applied almost universally in the ancient Near East, including Canaan, during the time of the Old Testament. The contracts anticipated a 15 percent annual death rate in the herd. This would include animals dying from old age and disease.3 To account for this natural loss, shepherds had to produce the skins complete with wool.4 Martha A. Morrison in her analysis of twenty-six Nuzi contracts, found the actual loss to be 17.1 percent,5 so a rate of 15 percent would have favored the owners. Nuzi owners expected about 80 births per 100 ewes.6 Morrison determined the actual birthrate to be 78 percent, again a little in favor of the owners. J. J. Finkelstein analyzed a number of Old Babylonian contracts and determined that an average contract would require the shepherd to guarantee the owner an increase of 66.6 sheep per 100, but the shepherd was allowed to keep anything more than that.7 Thus if nature cooperated, both parties could be satisfied, even though the owner was the best protected. If the shepherd did not return the minimum number of animals called for in the contract, he had to replace them or obtain contractual relief to free him of the duty to replace them. Other terms of the contract were negotiated or provided by statute. For instance the owner was expected to provide the shepherd with grain for food8 and adequate clothing.9 According to Morrison, shepherds were also entitled to milk and wool as part of their wages and could eat rams for meat, though of course they would account for them at the end of the contract year.10 Sheep could be lost through theft, attacks by wild animals, death by natural causes, acts of God, or simply by wandering off. The shepherd had to guard especially against loss from neglect. According to the Laws of Eshnunna dating from about 1900 B.C. and the Code of Hammurabi dating from about 1750 B.C., if a bailee for hire was careless or negligent, he would have to replace all missing or lost property.11 As David Daube has pointed out, however, the Bible more leniently contains “no express provision . . . making him [the shepherd] liable in case he simply loses an animal.”12 The cities of the Old Babylonian era were situated in the broad Tigris-Euphrates Valley. Sophisticated irrigation systems utilized the water from these great rivers to produce year-round crops. Interspersed with these productive lands were marginal lands in patchwork across the whole valley. Contract shepherds would guide their animals to these marginal areas by day and return to the sheepfolds provided by the owners by night. Therefore, the shepherds were responsible for the loss of any animals during the day, but the responsibility shifted to the owner and his sheepfold by night.13 In this instance the fold was a fenced enclosure with a gate and sometimes a watchtower provided by the owner or his agent.14 Attacks by wild beasts were a major concern for shepherds. The general rule was that the shepherd had a reasonable responsibility to safeguard the flock but not at the risk of his own life. If the attacking beast was one that could threaten his life—a bear or a lion—he was only required to attempt to recover pieces of the slain animal as evidence that it had been consumed by a predator.15 Similarly if the animals were killed by lightning, floods, or accidents which a man could not reasonably defend against, the shepherd would not have to replace them.16 What if a sheep or lamb wandered off? There is no provision in the Old Testament that would make a shepherd liable for replacing a sheep lost in this way.17 We can assume that if a shepherd could show a reasonable standard of care, he would not have to replace lost sheep. If he was proved negligent, he would have to replace them.18 How does all this apply to the narrative of Jacob? Jacob's first contract with Laban was to care for his flock for seven years to pay the bride-price for Rachel's hand in marriage. We know nothing more about this contract. Similarly the second contract for another seven years' service for Rachel's hand—the first seven years having arbitrarily become the bride-price for Leah—did not contain any other terms of which we are aware. Any blanks in these two simple oral agreements would be filled in by the laws and customs discussed above. Jacob and Laban negotiated a third contract when Jacob told Laban that he wanted to return to Canaan. Laban was anxious to dissuade Jacob from leaving and said, “For I have learned by experience that the Lord hath blessed me for thy sake” (Gen. 30:27). However, after fourteen years under Laban's domination, Jacob was no longer a novice negotiator. Jacob had learned how to produce a multi-colored flock—a rarity among Near Eastern flocks today and from the context of the narrative also a rarity in Laban's day. So Jacob contracted with Laban to keep the flocks in exchange for “the speckled and spotted cattle, and all the brown . . . sheep, and the spotted and speckled among the goats” (Gen. 31:32). Further Jacob stated that any solid-colored animals in his possession should be considered stolen and therefore subject to a replacement penalty of at least twofold (v. 33). Laban readily agreed to this contract, for in a normal situation this contract would cost him no more than a couple of animals per hundred and not the 10-20 per hundred that most contracts called for. Jacob removed his little flock of colored, spotted, speckled, and ringstraked sheep and goats three days' distance from Laban's flocks so there could be no chance of intermingling. Then Jacob did a curious thing. He took poles of green poplar, hazel, and chestnut and hacked, slashed, and partially stripped them until they looked multicolored. He planted these all around the troughs or watering holes with the intention that the animals would see them while breeding and impart these attributes to their offspring. Ancient Near East folklore held that thoughts during conjugal relations or experiences during pregnancy affected the nature and characteristics of the child. Even the Shulhan Arukh, a sixteenth-century A.D. Jewish codification, recommended that a couple think on the Torah during sexual intercourse so that the child conceived would love the Torah.19 Whatever the scientific merits of Jacob's theory, “the flocks conceived before the rods, and brought forth cattle ringstraked, speckled, and spotted” (Gen. 30:39). For at least six years Jacob served Laban under their third recorded contract, making at least twenty years of service in all (Gen. 31:38, 41).20 Jacob became wealthy under their new arrangement, and Laban saw his flocks and herds dwindle. “And Jacob beheld the countenance of Laban, and behold, it was not toward him as before” (v. 2). The Lord visited Jacob and told him to return to the land of his fathers and that he would protect him (v. 3). Jacob's contract was fulfilled at the time of shearing, so he did not violate his contract by leaving.21 When Laban was away shearing his own flocks, Jacob left for Canaan. Angry at this surprise departure, Laban tracked down Jacob for a confrontation. Jacob defended himself with equal vigor:
Jacob further complained that Laban had changed his wages ten times (contracts were renewed after every shearing season), and Laban did not refute the charge (Gen. 31:41). So it seems that Laban unilaterally changed whatever percentage of animals was to belong to Jacob, and the quantity of food, raiment, or other compensation, the details of which are not given. Laban did not challenge any of Jacob's charges, indicating that he had in fact violated every known custom or law governing shepherds for hire. Laban recommended that they enter into one last contract: that they would never again come against each other in anger and that Jacob would not add to nor mistreat his wives (Gen. 31:44-53). It appears that in all their contractual relationships, Jacob exceeded his obligations and was more faithful than a shepherd was reasonably expected to be. In contrast Laban's demands and expectations exuded greed. The Sale of Joseph into Egypt It was no secret that Joseph's brothers despised him. He was Jacob's favorite son. His troubles may have begun when he informed on some of his brothers (Gen. 37:2). Later he had two dreams, in which his brothers and parents bowed down to him (vv. 5-10). Even his father was upset by the dreams. Jacob gave Joseph an expensive “coat,” which further alienated his brothers, for it seems to have symbolized a position of superior rank. (One scholar, Emanuel Feldman, claims that it represented priesthood authority over his brothers and was similar to the special cloaks provided the high priests in the future temple in Israel.22) One day when the family was living near Hebron, Jacob called Joseph to him. His brothers were tending the flocks, working their way north with the receding spring rains. Jacob thought that they would be near Shechem by now and asked Joseph to check on them. Joseph complied, but arriving near Shechem, he could not find his brothers and the flocks. From a field worker, Joseph learned that his brothers were farther north. He found them in a field near Dothan about twelve miles away. Recognizing his coat from a distance, his brothers conspired to kill him. “Come now therefore, and let us slay him, and cast him into some pit, and we will say, Some evil beast hath devoured him: and we shall see what will become of his dreams” (Gen. 37:20). Reuben, the firstborn, persuaded them to modify this plan: “And Reuben . . . said unto them, Shed no blood, but cast him into this pit that is in the wilderness, and lay no hand upon him; [saying this] that he might rid him out of their hands, to deliver him to his father again” (Gen. 37:21-22). What were Reuben's motives? David Daube argues that the responsibilities of the firstborn son toward his siblings included the same duties and responsibilities as those of a shepherd or bailee for hire.23 Certainly it is well established that the firstborn had serious familial responsibilities. While his father was alive, and under his direction, the firstborn was responsible for the flocks and herds of the family. After his father's death the firstborn son was responsible for the support of his mother and sisters. He had to provide his sisters with a dowry and arrange for their marriages. If one of his brothers or sisters was murdered, he was responsible for finding the perpetrator and avenging his sibling's death. In support of Daube's argument, it seems that Jacob's firstborn son did recognize a responsibility to protect his siblings. For example, many years later when Reuben was trying to convince Jacob to let him take Benjamin to Egypt to prove that he and his brothers were not spies, Reuben said to his father: “Slay my two sons, if I bring him [Benjamin] not to thee: deliver him into my hand, and I will bring him to thee again” (Gen. 42:30, 37). In Dothan the brothers spied a merchant caravan of Ishmaelites. Judah suggested they sell Joseph to them as a slave. Kidnapping and selling your brother was a capital offense under Old Babylonian law.24 Reuben faltered as a leader here and appeared to go along with the plan, though he had planned to release Joseph. The Bible records that “his brethren were content {with Judah's suggestion}” (Gen. 37:27). Meanwhile Joseph was probably not aware that his brothers had intended to kill him. Indignant at his treatment, he must have made a lot of noise, for a band of Midianite merchantmen heard him, got to the pit first, “rescued” him, and sold him for twenty pieces of silver to Ishmaelite traders on their way to Egypt (Gen. 37:28). When Reuben approached the pit alone intending to release Joseph before the rest carried out their design to sell him, he found it empty. Shocked and afraid, Reuben “rent his clothes” (Gen. 37:29) and then raced back to his brethren, crying, “The child is not; and I, whither shall I go?” (v. 30, italics added). This phrasing suggests that his concern for Joseph was not founded in love for the boy but in the firstborn's responsibility. He was concerned for himself and his future as family leader. Joseph had joined the world of slavery, and his brothers were about to enact a cover-up drawn from the laws and customs of the keeper or shepherd. As shepherds the brothers decided upon a solution that would exonerate Reuben. They took Joseph's coat and tore it as if it had been ripped by wild beasts. According to the Code of Hammurabi, when a wild beast destroyed an animal from the flock, the owner was entitled to the remnants that could be recovered.25 The brothers killed a kid, dipped the shredded coat in its blood, and took it back to Jacob as evidence that Joseph had been slain by wild beasts. They pressed him for a judgment: “This have we found: know now whether it be thy son's coat or no” (Gen. 37:32). This question supports the contention that Reuben and his brothers were attempting to avoid legal obligation.26 Jacob had to accept the irrefutable evidence. He acknowledged: “It is my son's coat; an evil beast hath devoured him; Joseph is without doubt rent in pieces” (Gen. 37:32-33). Reuben and his brothers were free of any further responsibility for Joseph. Daube suggests that Jacob despite his acknowledgement either had or developed doubts about Joseph's death.27 Many years later when Judah explains the family history to the Egyptian official who is in reality his younger brother, he quotes his father as saying, “And the one [Joseph] went out from me, and I said, surely he is torn in pieces; and I saw him not since.” Why would Jacob say “and I said”? Daube claims he had to say it as a legal requirement, having been formally asked to “discern” the evidence of the torn and bloody robe. Daube also reads Jacob's statement, “and I saw him not since,” as Jacob's opinion that his son was absent, not dead. Thus Jacob made these statements when the evidence was presented to him because it was formally required—not necessarily because he believed it. He refused to let his sons take Benjamin to Egypt with them because he still neither trusted nor believed them. He would not even accept Reuben's death oath regarding his sons as sufficient surety to let Benjamin go (Gen. 42:37). It was not until they were again starving and Judah asserted his leadership and also agreed to stand as surety for Benjamin that Jacob finally relented and let them go. When Judah and his brothers presented themselves before Joseph, Benjamin was with them. Joseph, who had not seen Benjamin, his only full brother, in about twenty-two years,28 was overcome with emotion and had to leave the audience chamber to regain his control (Gen. 43:30). Upon returning he hosted a meal with his brothers, arranging them at their table in order of their family seniority. The brothers wondered at this and also at the fact that he had five times as much food presented to Benjamin than to any of the other brothers. After he had completed a sale of grain, Joseph instructed his servants to return their money to his brother's sacks and to hide his special silver divining cup in Benjamin's sack (Gen. 44:2, 5).29 When they had traveled but a short distance from the city, Joseph sent his servants after them to accuse them of stealing his divining cup. Of course the brothers protested their innocence and said, “With whomsoever of thy servants it be found, both let him die, and we also will be my lord's bondmen” (Gen. 44:9). This was nothing more than a statement of the Code of Hammurabi regarding the theft of sacred things.30 When the chalice was found, the men were devastated. When presented to Joseph, they all prostrated themselves at his feet. “What deed is this that ye have done? wot ye not that such a man as I can certainly divine?” (Gen. 44:15), Joseph asked. He then said he would keep Benjamin and the others could go. Judah took the lead at this moment, offering himself in exchange for Benjamin (vv. 16-34). Judah, unquestionably a villain in the first part of the story, thus becomes the hero in the second part. According to Maimonides, a twelfth-century A.D. Jewish scholar, one cannot know if he has overcome temptation until he finds himself in the same circumstances as when he first sinned. If he resists the second time, his repentance is complete.31 David Chinitz hypothesizes that this belief motivated Joseph to create the complicated charade he played on his brothers.32 Whatever his motivation his charade allowed all his brethren to show that they had considerable remorse for their involvement in his demise. Perhaps as a result of Judah's honorable conduct, he later received the firstborn blessing of Jacob giving him leadership over Israel (Gen. 49:10; 1 Chr. 5:1-2). David the Shepherd David was the most famous shepherd of the western world. During his legendary confrontation with Goliath, David had been tending the family flocks. The prophet Samuel had already anointed him next king of Israel (1 Sam. 16:13). David arrived at Saul's camp with food for his brothers, who were serving as soldiers. Goliath took his customary position in the valley and issued his usual challenge. David was incensed at this “uncircumcised Philistine” (1 Sam. 17:26) and was talking with some soldiers when his brother Eliab spotted him. Fearing that David had left the flocks at home unguarded—a responsibility that Eliab as firstborn had assigned David—Eliab became angry. He said, “And with whom hast thou left those few sheep in the wilderness?” (v. 28). David gave a classic younger brother response: “What have I now done?” (v. 29). Eliab had every right to be concerned, for the flock was his responsibility as the firstborn. As a matter of fact, David had left them with a keeper (v. 20). Incensed by Goliath's challenge, David went to Saul offering to challenge the giant. Saul was swayed when David told him, “Thy servant kept his father's sheep, and there came a lion, and a bear, and took a lamb out of the flock; And I went out after him and smote him, and delivered it out of his mouth: and when he arose against me, I caught him by his beard, and smote him, and slew him” (1 Sam. 17:34-35). It is not clear whether David was talking about one occasion or two, since bears and lions do not act in concert. In any event Saul knew that it was remarkable for a shepherd to stand against such odds when there was no legal or moral obligation, and that it required skill as well as courage. The rest of the story is well known: David slew the Philistine. Cain and Abel In Genesis 4 appears an account of the first recorded murder, which also illuminates aspects of the law of the keeper. Cain was a tiller of the soil while Abel made his living keeping flocks. On a certain day both brought offerings to the altar. According to the narrative, Cain “brought of the fruit of the ground an offering unto the Lord,” while Abel “brought of the firstlings of his flock and of the fat thereof” (Gen. 4:3-4). Abel's offering is described as acceptable by the terms “firstlings” and “fat,” while no qualifiers modify Cain's offering, which God rejected. Incensed and vengeful, Cain sought his brother and his flocks, killed Abel, and then buried him to hide the evidence. A short while later, the Lord God asked Cain, “Where is Abel thy brother?” Cain answered, “I know not: Am I my brother's keeper?” (Gen. 4:9). Acccording to Middle Eastern law, Cain, as the elder son, possibly the firstborn, was his brother's keeper. Although this story, by its metaphor, may reveal more about the time when it was written than anything else, we see the pervasiveness of law in biblical narrative and its importance in family relationships.
|
|
1. J. N. Postgate, “Some Old Babylonian Shepherds and Their Flocks,” Journal of Semitic Studies 20 (1975): 2. 2. J. J. Finkelstein, “An Old Babylonian Herding Contract and Gen. 31:38f,” Journal of Ancient Oriental Studies 88 (1968): 31. 3. Postgate, “Babylonian Shepherds and Their Flocks,” 6. 5. Martha A. Morrison, “Evidence for Herdsmen and Animal Husbandry in Nuzi Documents,” in Studies on the Civilization and Culture of Nuzi and the Hurrians, in Honor of Ernest R. Lacheman, eds. M. A. Morrison and D. I. Owen (Winona Lake, IN: Eisenbrauns, 1981), 282. 6. Martha A. Morrison, “The Jacob and Laban Narrative in Light of Near Eastern Sources,” The Biblical Archeologist 46 (Summer 1983): 156. 7. Finkelstein, “Old Babylonian Herding Contract,” 34. 8. Postgate, “Babylonian Shepherds and Their Flocks,” 9. 9. Finkelstein, “Old Babylonian Herding Contract,” 36. 10. Morrison, “The Jacob and Laban Narrative,” 156-57. 11. Law of Eshnunna 5, in Reuven Yaron, The Laws of Eshnunna (Jerusalem: The Magnes Press, 1969), 23; Code of Hammurabi 125, in G. R. Driver and J. C. Miles, The Babylonian Laws, 2 vols. (Oxford: Oxford University Press, 1968), 2:51. 12. David Daube, “Negligence in the Early Talmudic Law of Contract,” in Festschrift Fritz Schulz (Weimar: Hermann Bohlaus Nachfolger, 1951), 145. 13. Driver and Miles, The Babylonian Laws, 1:460. 15. “If a visitation of god has occurred in a sheepfold or a lion has made a kill, the shepherd shall prove himself innocent in the presence of god, but the owner or the sheepfold shall receive from him the animal stricken in the fold.” Code of Hammurabi 266, in James B. Pritchard, ed., Ancient Near Eastern Texts (Princeton, NJ: Princeton University Press, including Supplement, 1969), 177; Sumerian Law 9, in ibid., 526; Ex. 22:13; Amos 3:12. 16. Baba Mezia 93b, in Soncino. I. Epstein, ed. and trans., The Babylonian Talmud (London: The Soncino Press, 1948), 540-41. 17. Daube, “Negligence in Early Talmudic Law,” 145. 18. Finkelstein, “Old Babylonian Herding Contract,” 31. 19. Rabbi Solomon Ganzfried, Code of Jewish Law: Kitzen Shulhan Arukh, trans. Hyman E. Goldin (New York: Hebrew Publishing Company, 1963), 4.14 [150:2]. This tradition endures even today. When I was living in the village of Abu Dis on the West Bank and visiting the home of an Arab family in 1977, I was introduced to all the sons, six handsome dark-haired young men. Then a girl of about twelve with flaming red hair came into the room. She was their sister. How did she come to have such beautiful red hair when everyone else in the family had dark hair? I was told that while her mother was pregnant, she rode the bus into Jerusalem and while disembarking saw a European woman with flaming red hair—and that was why the daughter was born with the same beautiful hair. 20. Clarke speculates that it might have been closer to forty based on a consideration of the ages of the children upon their arrival at Shechem. Adam Clarke, The Holy Bible Containing the Old and New Testaments with a Commentary and Critical Notes (1830; rprt., Nashville, TN: Abingdon Press, n.d.), 1:197-99. 21. Morrison, “Jacob and Laban Narrative,” 158. 22. Emanuel Feldman, “Joseph and the Biblical Echo,” Dor le Dor 13 (1985): 162. 23. David Daube, Studies in Biblical Law (New York: KTAV Publishing House, 1969), 4. 24. Code of Hammurabi 14, in Driver and Miles, The Babylonian Laws, 2:19. 25. Code of Hammurabi 266, in Pritchard, Ancient Near Eastern Texts, 177. 26. See Daube, Studies in Biblical Law, 6. 28. Stuart A. West, “Judah and Tamar—A Scriptural Enigma,” Dor le Dor 12 (1984): 246n2. 29. R. L. Harris, G. L. Archer Jr., and B. K. Waltke, eds., Theological Wordbook of the Old Testament (Chicago: Moody Press, 1980), 2:572. 30. “If a man has stolen property belonging to a god or a palace, that man shall be put to death, and he who has received the stolen property from his hand shall be put to death.” Code of Hammurabi 6, in Driver and Miles, The Babylonian Laws, 2:15; see also Gen. 31:32, the tale of Rachel's stealing Laban's household images. 31. David Chinitz, “Joseph and His Brothers,” Dor le Dor 14 (1986): 183. |
|Joseph Smith | Book of Mormon | Mormon Temples | Mormon Polygamy | contact us |
| Copyright © Signature Books, LLC. All rights reserved. No part of this text or graphics may be reproduced in any form or by any means without written permission from Signature Books, LLC |