Asham of False Oaths: Why Does the Offender Confess?

For an alternative translation of asham as “reparation offering” see Jacob Milgrom, Leviticus 1-16: A New Translation with Introduction and Commentary, AB 3 (New York: Doubleday, 1991), 342. For a discussion of this section, see James W. Watts, “Leviticus' Rhetorical Presentation of the Sin and Guilt Offerings,” TheTorah (2019).

How prevalent such oaths may have been and how exactly they would have been phrased is difficult to know since the perishable writing materials that Israelite and Judahite scribes favored unfortunately prevented the survival of trial records from the biblical world. Thus, we are left only with the testimony of law collections, which could reflect idealized law as opposed to practiced law.

The law continues with what happens in cases of the animal being stolen or eaten by a predator:

^כב:יא וְאִם גָּנֹב יִגָּנֵב מֵעִמּוֹ יְשַׁלֵּם לִבְעָלָיו ^כב:יב אִם טָרֹף יִטָּרֵף יְבִאֵהוּ עֵד הַטְּרֵפָה לֹא יְשַׁלֵּם

^22:11 But if [the animal] was stolen from him, he shall make restitution to its owner. ^22:12 If it was torn by beasts, he shall bring it as evidence; he need not replace what has been torn by beasts.

In the latter case, the ability to produce the dead animal’s remains as proof of predation (i.e., mauling to death by a beast of prey), functions the same as having witnesses, and allows the shepherd to escape liability.

Other possible examples of exculpatory oaths include Exod 22:7-8; Deut 21:1-9; 1 Kgs 8:31-32. Biblical poetry and wisdom also use “oath language” toward various literary ends; see, e.g., Ps 7:5-6; 137:6; Job 31.

Milgrom, Leviticus 1-16, 338.

Like a number of “sin” words, ashem has a consequential valence; that is, it may refer not only to the sin but also to its consequence. Milgrom, Leviticus 1-16, 340-43. For the observation of a consequential meaning to the “sin” word avon see Ibn Ezra’s commentary to Gen 4:13.

Milgrom, Leviticus 1-16, 343.

Baruch J. Schwartz, “The Bearing of Sin in the Priestly Literature,” in Pomegranates and Golden Bells: Studies in Biblical, Jewish, and Near Eastern Ritual, Law, and Literature in Honor of Jacob Milgrom, ed. D. P. Wright, D. N. Freedman, and A. Hurvitz (Winona Lake: Eisenbrauns, 1995), 5-21 [p. 14].

See Bruce Wells, The Law of Testimony in the Pentateuchal Codes (BZAR 4; Wiesbaden: Harrassowitz, 2004), 67-68; David Lambert, How Repentance Became Biblical: Judaism, Christianity, and the Interpretation of Scripture (Oxford: Oxford University Press, 2016), 59-61.

Bruce Wells, The Law of Testimony in the Pentateuchal Codes, 67–68.

Although Milgrom (Leviticus 1-16, 342-343) has argued that biblical and ancient Near Eastern texts blur the distinction between emotional and physical suffering, the precise characterization of the wrongdoer’s experience of guilt as physical is critical to understanding the misfortune they undergo, as well as the consequences they face upon confessing.

Another example from the book of Psalms is:

^{תהלים ז:ד} יְ־הוָה אֱלֹהַי אִם עָשִׂיתִי זֹאת אִם יֶשׁ עָוֶל בְּכַפָּי. ^ז:ה אִם גָּמַלְתִּי שׁוֹלְמִי רָע וָאֲחַלְּצָה צוֹרְרִי רֵיקָם. ^ז:ו יִרַדֹּף אוֹיֵב נַפְשִׁי וְיַשֵּׂג וְיִרְמֹס לָאָרֶץ חַיָּי וּכְבוֹדִי לֶעָפָר יַשְׁכֵּן סֶלָה.

^{Ps 7:4} O YHWH , my God, if I have done such things, if my hands bear the guilt of wrongdoing, ^7:5 if I have dealt evil to my ally—I who rescued my foe without reward—^7:6 then let the enemy pursue and overtake me; let him trample my life to the ground, and lay my body in the dust. Selah.

Małgorzata Sandowicz, “’Fear the Oath!’ Stepping Back from Oath Taking in First Millennium B.C. Babylonia.” Palamedes 6 (2011): 17-36 [p. 18].

Examples of such oaths may be found in BIN (=Babylonian Inscriptions in the Collection of James B. Nies) 6 39:18-19; BIN 6 97:20-22; M. 5719 IV:11-15; EA (=Die El-Amarna Tafeln) 209, ll. 13-16; UET (=Ur Excavations, Texts) 4 171; UET 6 402. Also see, Małgorzata Sandowicz, “‘Fear the Oath!’,” 18; eadem, Oaths and Curses: A Study in Neo- and Late Babylonian Legal Formulary (Münster: Ugarit-Verlag, 2012), 400–401; Blane Conklin, Oath Formulas in Biblical Hebrew (Winona Lake: Eisenbrauns, 2011), 87.

Other verses which use this formula are: 1 Sam 3:17; 14:44; 20:13; 25:22; 2 Sam 3:9, 35; 19:14; 2 Kgs 6:31.

We see something similar in the rabbinic principle קללת חכם אפילו בחנם היא באה “the curse of a sage happens even for no reason,” i.e., that even if the condition under which the curse is supposed to come about isn’t fulfilled, the curse will happen anyway, since a sage uttered it. See b. Berakhot 56a, Sanhedrin 90b, Makkot 11a.

A similar interpretation was offered by David Lambert, a Bible scholar from the University of North Carolina, who writes:

To be ashem is to be condemned; sacrifices are brought in anticipation of the affliction that is thought to follow from a state of guilt.

In Lambert’s view, the offender believes that they are condemned, and admit their wrongdoing, in order to curb the effects of the false oath and prevent any further affliction. In my view, ve-ashem means that the perpetrator has already begun to experience affliction.

^{שמות כב:ו} כִּי יִתֵּן אִישׁ אֶל רֵעֵהוּ כֶּסֶף אוֹ כֵלִים לִשְׁמֹר וְגֻנַּב מִבֵּית הָאִישׁ אִם יִמָּצֵא הַגַּנָּב יְשַׁלֵּם שְׁנָיִם. ^כב:ז אִם לֹא יִמָּצֵא הַגַּנָּב וְנִקְרַב בַּעַל הַבַּיִת אֶל הָאֱלֹהִים אִם לֹא שָׁלַח יָדוֹ בִּמְלֶאכֶת רֵעֵהוּ. ^כב:ח עַל כָּל דְּבַר פֶּשַׁע עַל שׁוֹר עַל חֲמוֹר עַל שֶׂה עַל שַׂלְמָה עַל כָּל אֲבֵדָה אֲשֶׁר יֹאמַר כִּי הוּא זֶה עַד הָאֱלֹהִים יָבֹא דְּבַר שְׁנֵיהֶם אֲשֶׁר יַרְשִׁיעֻן אֱלֹהִים יְשַׁלֵּם שְׁנַיִם לְרֵעֵהוּ.

^{Exod 22:6} When a man gives money or goods to another for safekeeping, and they are stolen from the man's house -- if the thief is caught, he shall pay double; ^22:7 if the thief is not caught, the owner of the house shall depose before God that he has not laid hands on the other's property. ^22:8 In all charges of misappropriation—pertaining to an ox, an ass, a sheep, a garment, or any other loss, whereof one party alleges, “This is it”—the case of both parties shall come before God: he whom God declares guilty shall pay double to the other.

While it is possible to simply explain the difference by noting that these laws are from different law collections, many source critical scholars have offered meaningful reasons beyond just differing legal traditions, and I find these approaches more compelling in this case.

A similar principle exists in rabbinic halakha, namely מודה בקנס פטור “one who confesses about a [crime which brings with it a] penalty payment is exempt [from paying it].” See e.g., b. Ketubot 43a.

This would not be beneficial to the victim of the original property offense, of course, who would certainly prefer to receive double compensation. But the victim’s experience is not the perspective that interests the Priestly text here. Instead, Lev 5:20-26 considers what constitutes a fair consequence that primarily takes into account the experience of the partly punished offender.

This is parallel what one finds in Mesopotamian legal texts. See discussion in, Milgrom, Leviticus 1-16, 365-378; Eckart Otto, “Die rechtshistorische Entwicklung des Depositenrechts in altorientalischen und altisraelitischen Rechtskorpora,” in Kontinuum und Proprium. Studien zur Sozial- und Rechtsgeschichte des Alten Orients und des Alten Testaments (Wiesbaden: Harrassowitz, 1996), 139-63 [161-163]; Wells, Law of Testimony, 140.