Westbrook, Raymond. "What is the Covenant Code?" Pages 15-36 in Theory and Method in Biblical and Cuneiform Law: Revision, Interpolation, and Development. Journal for the Study of the Old Testament Supplement Series 181. Edited by Bernard Levinson. Sheffield: Sheffield, 1994.
Otto, Eckart. "Aspects of Legal Reforms and Reformulations in Ancient Cuneiform and Israelite Law." Pages 160-196 in Theory and Method in Biblical and Cuneiform Law: Revision, Interpolation, and Development. Journal for the Study of the Old Testament Supplement Series 181. Edited by Bernard Levinson. Sheffield: Sheffield, 1994.
In biblical studies, the term Bundesbuch ("Book of the Covenant") refers to the discrete section of Ex 20:22–23:19. The scholarship on the Bundesbuch is vast and complex. To the extent it touches on the nature of the laws contained therein in relationship to extra-biblical and specifically cuneiform law in the ancient Near East, two scholars whose theories are representative of the major, contrasting opinions are Raymond Westbrook and Eckart Otto.
The fundamental difference between Westbrook and Otto is their perception of the formal development of ancient Near Eastern law. Otto, in "Aspects of Legal Reforms and Reformulations in Ancient Cuneiform and Israelite Law," argues that the scholastic backdrop to the creation of cuneiform law collections points to their ongoing redactional development and necessitates a diachronic analysis, which in turn provides a foundation for understanding ancient Near Eastern and Israelite legal history (1994:161-163). In support of these assertions, Otto analyzes the discrete sections devoted to marriage and bodily injury in Codex Ešnunna, Codex Ḫammurāpi, the Middle Assyrian Laws, and the Hittite Laws for signs of redactional development. Naturally, Otto finds the seams of redactional activity, reflected in the formal composition of the laws, developments in the character and complexity of the laws, such as the severity of the liability, and in the scribe's efforts to mediate between private and public law (1994:163-182). He subsequently applies this model of dynamic common law to a reading of the Book of the Covenant in Exodus. Otto asserts that talionic laws are older and, in the structure of the received text, partially mitigated by the non-talionic laws of compensation that circumscribe them (1994:182-186). He also argues for subsequent theological interpretations and redaction in successive frames that privileged certain social and cultic concerns (1994:186-189) and a final redaction of the Book of the Covenant that "arranged the laws according to the deuteronomistic Decalogue" (1994:189-192). Otto concludes by examining the reformulation of the Book of the Covenant in Deuteronomy as further evidence of the dynamic process of legal reform and reformulation (1994:192-195).
In addressing this specific question, Westbrook is less concerned with the theological framework of the Book of the Covenant and primarily concerned with the so-called 'Covenant Code,' that is the discrete section, defined as Ex 21:1–22:19, which contains laws potentially "justiciable in a human (as opposed to divine) court" (1994:15). At the outset, Westbrook targets the historical research in biblical studies on the 'Covenant Code' and specifically the work of Otto. He notes Alt's schema of apodictic and casuistic law, which Otto adopts, and more importantly, the different historical settings or origins assigned to these formal categories by Otto and others. He observes that at the root of the theory is a fundamental claim that Israelite law, and even cuneiform law, "underwent radical development from 'primitive law' to a relatively sophisticated model" and that this development is evident in the text (1994:19-20). Westbrook questions the historical philosophical and ethical foundations underlying such claims (1994:21-22). He also asserts, by contrast, that the Sumerian, Babylonian, Assyrian, and Hittite cuneiform evidence points to the "static nature" of ancient Near Eastern law; notwithstanding minor differences in details, he argues that the forms and content of the legal documents remain essentially constant over hundreds of years (1994:22-28). Interestingly, Westbrook connects the static nature of the law to the lack of ny "major advance in technology" or "radical change in social or political structure" (1994:28). He argues that the ancient Near Eastern social and intellectual environment was simply "hostile to change" and its "intellectual environment ... handicapped by [an] inability to define terms, create general categories, or reason vertically from the general to the particular" (1994:28). From these conclusions, Westbrook moves to situate the Covenant Code firmly in its historical context. He argues that the Covenant Code essentially conforms to its cuneiform counterparts in form and content and concludes that the presumption must be "that the Covenant Code is a coherent text comprising clear and consistent laws, in the same manner as its cuneiform forbears" (1994:28-36).
Obviously, these two perspectives on cuneiform and biblical law are quite distinct and view ancient Near Eastern legal history in mutually exclusive ways. Otto's view presumes a dynamic legal system with active legal reforms and reformulations while Westbrook reconstructs a static system mired in a hostile and stunted social and intellectual environment. Each scholar then takes this view and applies it to the biblical text. Despite the perhaps overly negative characterization of the social and intellectual climate in the ancient Near East, Westbrook seems to have a more solid foundation. He adeptly shows that the distinctions Otto alleges between the usage and historical settings of apodictic and casuistic forms as well as his basis for a development from primitive to 'sophisticated' law are false. The extant evidence reveals all these characteristics in cuneiform law in a way that does not allow for Otto's teleological theories. Furthermore, Westbrook shows that the nature of the differences between laws is really not as substantial as Otto posits. The differences reflect either the degree or type of legal consequences, variations in the circumstances covered in the protasis of casuistic formulations, and miscellaneous omissions (1994:26-27). All of these changes can be explained textually or in light of royal edicts (1994:26-27). At the same time, there is remarkable continuity in the broader categories of the law, such that the same topics are usually covered, sometimes with identical or near-identical formulations (1994:31).
It is important to note, however, that Westbrook only makes an argument for "the presumption that the Covenant Code is a coherent text" (1994:36) and only, I would add, insofar as the Covenant Code conforms to the genre of cuneiform law. As such, while Westbrook exposes Otto's problematic theoretical framework, his conclusion does not absolutely demand the coherence of the text; it only puts the onus on scholars who wish to argue for interpolation. This leaves some room for theories of composition that can defend an interpolation on grounds other than Otto's theories of dynamic law and teleological development. Significantly, the fact that the 'Covenant Code' exists within a narrative framework in contrast to its cuneiform counterparts opens the door considerably for redactional development, though I am inclined to agree with Westbrook that little is likely to be gained from the proposals (1994:35-36). They are primarily speculation and can not really add anything substantial to the nature of the laws themselves.
Biblical and Cuneiform Law
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