The Original Function of Torah Law

[1] J.J. Finkelstein, The Ox That Gored, Transactions of the American Philosophical Society 71, part 2 (Philadelphia: The American Philosophical Society, 1981), 42-43, observes that even when everyday matters such as inheritance or marriage are touched upon by the biblical laws, it is the unusual subcases rather than the normative that is dealt with. For example, Num 27:1-11 addresses the case of the daughters of Zelophehad, who petition Moses for inheritance rights in the absence of male heirs to their father’s estate. Editor’s note: See Nehama Aschkenasy, “Zelophehad’s Daughters Challenge the Law and Moses is Speechless,” TheTorah (2014).

[2] The term מבשים (mevushim) is a hapax legomenon likely derived from the stem ב.ו.ש (to feel shame, be ashamed), thus denoting “shameful things/parts” or “that which brings shame,” here used as a euphemism for the male genitalia. The woman is trying to stop the man from hurting her husband by squeezing his testicles.

[3] Biblical translations follow NJPS with modifications. Editor’s note: For a discussion of this text and the questions it raises regarding the nature of the woman’s offence and the relationship between the punishment and the crime, see Hilary Lipka, “A Woman Who Seizes a Man’s Testicles During a Fight, Her Hand is Cut Off,” TheTorah (2020).

[4] The Middle Assyrian Laws, from Aššur (in Mesopotamia), tablet A, Pp 8, lines 78-87. The translation is from Martha T. Roth, ed., Law Collections from Mesopotamia and Asia Minor, SBLWAW  6, 2^nd ed. (Atlanta: Scholars Press, 1997), 156-57, with slight adjustments. The question marks indicate restored parts of the text that are not entirely certain, and the ellipses indicate a missing part of the text. 

[5] The following verses address what should happen if other harm results:

^כא:כג וְאִם־אָסוֹן יִהְיֶה וְנָתַתָּה נֶפֶשׁ תַּחַת נָפֶשׁ. ^כא:כד עַיִן תַּחַת עַיִן שֵׁן תַּחַת שֵׁן יָד תַּחַת יָד רֶגֶל תַּחַת רָגֶל. ^כא:כה כְּוִיָּה תַּחַת כְּוִיָּה פֶּצַע תַּחַת פָּצַע חַבּוּרָה תַּחַת חַבּוּרָה. וְכִי־יַכֶּה אִישׁ אֶת־עֵין עַבְדּוֹ אוֹ־אֶת־עֵין אֲמָתוֹ וְשִׁחֲתָהּ לַחׇפְשִׁי יְשַׁלְּחֶנּוּ תַּחַת עֵינוֹ.

^21:23 But if other damage ensues, the penalty shall be life for life, ^21:24 eye for eye, tooth for tooth, hand for hand, foot for foot, ^21:25 burn for burn, wound for wound, bruise for bruise.

Editor’s note: For a detailed discussion of this law with a focus on who the principle of lex talionis (an eye for an eye) is utilized within it, see Sandra Jacobs, “Deathblows to a Pregnant Woman – What Restitution was Required?” TheTorah (2020).

[6] The Laws of Hammurabi, from Babylon (in Mesopotamia), Pp 209-214, include different punishments depending on the harm done to the woman (miscarriage vs death) and the woman’s status (elite landowning [awīlu] class, commoner class [marat mushkenim], or slave [amtum]). For a translation, see Roth, Law Collections from Mesopotamia and Asia Minor, 122-123.

[7] The Middle Assyrian Laws tablet A, Pp 21 and 50-52. see Roth, Law Collections from Mesopotamia and Asia Minor, p.160, 173-174.

[8] The Laws of Lipit-Ishtar, from Isin (in Mesopotamia), Pp d-f also include different punishments depending on the harm done to the woman and her status. See Roth, Law Collections from Mesopotamia and Asia Minor, p.26-27.

[9] The Hittite Laws from ancient Anatolia (present day Turkey) Pp 17-18 similarly address what the punishment should be if one harms a pregnant woman causing her to miscarry. For translations of these texts, see Roth, Law Collections from Mesopotamia and Asia Minor, 219-220.

[10] There is even a scribal exercise tablet from ancient Sumer (circa 1800 B.C.E.) that addresses such a case (See Roth, Law Collections from Mesopotamia and Asia Minor, p.43). Editor’s note: For a discussion of all of these texts within the larger context of texts related to miscarriage and abortion in the ancient Near Eastern and Mediterranean world, see Kristine Henriksen Garroway, “Abortion in the Ancient Near East and Greco-Roman World,” TheTorah (2023).

[11] These are known collectively as the “goring ox” laws:

^{שמות כא:כח} וְכִי־יִגַּח שׁוֹר אֶת־אִישׁ אוֹ אֶת־אִשָּׁה וָמֵת סָקוֹל יִסָּקֵל הַשּׁוֹר וְלֹא יֵאָכֵל אֶת־בְּשָׂרוֹ וּבַעַל הַשּׁוֹר נָקִי. ^כא:כט וְאִם שׁוֹר נַגָּח הוּא מִתְּמֹל שִׁלְשֹׁם וְהוּעַד בִּבְעָלָיו וְלֹא יִשְׁמְרֶנּוּ וְהֵמִית אִישׁ אוֹ אִשָּׁה הַשּׁוֹר יִסָּקֵל וְגַם־בְּעָלָיו יוּמָת.^כא:ל אִם־כֹּפֶר יוּשַׁת עָלָיו וְנָתַן פִּדְיֹן נַפְשׁוֹ כְּכֹל אֲשֶׁר־יוּשַׁת עָלָיו. ^{שמות כא:לא} אוֹ־בֵן יִגָּח אוֹ־בַת יִגָּח כַּמִּשְׁפָּט הַזֶּה יֵעָשֶׂה לּוֹ. ^כא:לב אִם־עֶבֶד יִגַּח הַשּׁוֹר אוֹ אָמָה כֶּסֶף  שְׁלֹשִׁים שְׁקָלִים יִתֵּן לַאדֹנָיו וְהַשּׁוֹר יִסָּקֵל. 

^{Exod 21:28} When an ox gores a man or a woman to death, the ox shall be stoned and its flesh shall not be eaten, but the owner of the ox is not to be punished. ^21:29 If, however, that ox has been in the habit of goring, and its owner, though warned, has failed to guard it, and it kills a man or a woman—the ox shall be stoned and its owner, too, shall be put to death. ^21:30 If ransom is laid upon him, he must pay whatever is laid upon him to redeem his life. ^21:31 So, too, if it gores a minor, male or female, [the owner] shall be dealt with according to the same rule. ^21:32 But if the ox gores a slave, male or female, he shall pay thirty shekels of silver to the master, and the ox shall be stoned.

[12] For example, the Laws of Eshnunna (ca. 1770 B.C.E.), from Eshnunna (in Mesopotamia), section 53-55:

^{Pp 53} If an ox gores another ox and thus causes its death, the two ox-owners shall divide the value of the living ox and the carcass of the dead ox. ^Pp54 If an ox is a gorer and the ward authorities so notify its owner, but he fails to keep his ox in check and it gores a man and thus causes his death, the owner of the ox shall weigh and deliver 40 shekels of silver. ^{Pp 55} If it gores a slave and thus causes his death, he shall weigh out and deliver 15 shekels of silver.

The translation is from Roth, Law Collections from Mesopotamia and Asia Minor, 67. The Laws of Hammurabi (Pp 250-252) have a similar law about goring oxen (for a translation, see Roth, Law Collections from Mesopotamia and Asia Minor, 128). For a discussion of what kind of relationship may have existed between the goring ox laws in these legal collections, see Reuven Yaron, The Laws of Eshnunna, second revised edition, Magnes Press: Hebrew University, 1988. (https://mc.dlib.nyu.edu/files/books/brill_awdl000033/brill_awdl000033_lo.pdf), 293-299.

[13] Editor’s note: Elaine Goodfriend, “The Law of the Goring Ox: Is it Neutered?” TheTorah (2017), considers the possibility that the term in this שור case may refer to a bull (that is, an uncastrated male bovine).

[14] For more on the similarities between the content of Torah law and that of Israel’s neighbors, see Bruce Wells, “What is Biblical Law? A Look at Pentateuchal Rules and Near Eastern Practice.” CBQ 70 (2008): 223–43. It should be mentioned that the focus here is on the non-ritual biblical legal corpora. The ritual legal corpora are another matter. Editor’s note: See William Morrow, “Are Torah Rituals Just Literary Compositions? A Comparison with Namburbis,” TheTorah (2024).

[15] There are some legal cases described in biblical texts (more on this later), but that is not the same as having actual legal records. One epigraphic piece of evidence that has been found is a judicial plea from Metsad Hashavyahu (Yavneh-Yam) dating from the 7^th century B.C.E. It is worth noting that the writer does not appeal to the provisions in Torah law (Exod 22:25 ff., Deut 24:10-13) that would be relevant to this case, which concerns the confiscation of a garment. See K.A.D. Smelik, “The Literary Structure of the Yavneh-Yam Ostracon,” IEJ 42 (1992): 55-61 (58-61, especially 61, note 27).

[16] Out of the thousands of legal decisions that we have preserved from southern Mesopotamia, not one decision cites the Laws of Hammurabi, which one might expect if it were used as a guideline for judges. In fact, some of the legal decisions that we have preserved contradict what one would expect from the cuneiform laws if they had served as actual legal guidelines. See Finkelstein, The Ox That Gored, 34-35; Michael Fishbane, Biblical Interpretation in Ancient Israel (Oxford: Clarendon Press, 1985), 95-96; James W. Watts, Reading Law: The Rhetorical Shaping of the Pentateuch (Sheffield: Sheffield Academic Press, 1999), 135; and Bernard S. Jackson, “Reflections on Biblical Criminal Law,” JJS 24 (1973): 8-38 (9-11), and Studies in the Semiotics of Biblical Law, JSOTSup, 314 (Sheffield: Sheffield Academic Press, 2000), 115-116.

[17] Raymond Westbrook, Law from the Tigris to the Tiber: The Writings of Raymond Westbrook, Ed. by Bruce Wells and F. Rachel Magdalene, 2 vols (Winona Lake: Eisenbrauns, 2009), i:3–20; i:21–71; i:119–32. For a history of the research, see Jonathan Vroom, The Authority of Law in the Hebrew Bible and Early Judaism: Tracing the Origins of Legal Obligation from Ezra to Qumran, JSJSup 187 (Leiden: Brill, 2018), 49-75. As discussed in Thomas Kazen, “The Changing Character of Torah Law,” Journal of Ancient Judaism 16 (2025) 73–100 (76-77), these law collections have been understood by scholars in a variety of ways: as ideological statements, as literary exercises dealing with hypothetical problems, as royal apologia intended to promote new rulers, and as attempts to impress upon the gods that a particular king is a just ruler (see, e.g., the prologues to the Laws Lipit-Ishtar and the Laws of Hammurabi, Roth, Law Collections from Mesopotamia and Asia Minor, 24-26 and 76-81, respectively). The scholar Raymond Westbrook has suggested that they resemble ancient Near Eastern scientific lists, which presented both hypothetical and real cases in casuistic form and served as references for judicial decision-making by providing precedents. Cf. Anne Fitzpatrick-McKinley, The Transformation of Torah from Scribal Advice to Law, JSOTSup 287 (Sheffield: Sheffield Academic Press, 1999), 96-100, 107-112, who discusses and problematizes Westbrook’s model further.

[18] Meir Malul, The Comparative Method in Ancient Near Eastern and Biblical Legal Studies. AOAT, Veröffentlichungen zur Kultur und Geschicte des Alten Orients und des Alten Testaments 227 (Kevelaer: Butzon & Butzon; Neukirchen–Vluyn: Neukirchener Verlag, 1990), 127–29; Finkelstein, “The Ox that Gored,” 17–20. Cf. Michael Lefebvre, Collections, Codes, and Torah: The Re-characterization of Israel’s Written Law, LHB/OTS 451 (New York: T&T Clark International, 2006), 10–11; Westbrook, Law from the Tigris to the Tiber, i:7–9.

[19] For an overview, summarizing the various positions and arguments in the debate over the character of Biblical law in relation to other Near Eastern legal collections, and to what extent these instructions were (meant to be) applied in actual practice, see Wells, “What is Biblical Law?” 223–43.

[20] As Fishbane, Biblical Interpretation in Ancient Israel, 91-92, notes, the sanctions proscribed are often vague and non-juridical. Moreover, in the parts of the Hebrew Bible where judges are given instructions, such as Deut 16:18-20 and 2 Chr 19:5-7, nowhere are the judges instructed to consult or comply with a written corpus of rules. Rather, the judges are given very general instructions: to do justice and avoid corruption. On this see Fitzpatrick-McKinley, The Transformation of Torah from Scribal Advice to Law, 118-121.

[21] In fact several cases in which the way legal situations are handled in narrative texts show no awareness of the Torah laws. It is also not uncommon to find acts that are proscribed in one or more of the biblical legal collections not even presented as problematic in narrative texts. For example, see Athalya Brenner, The Intercourse of Knowledge: On Gendering Desire and ‘Sexuality’ in the Hebrew Bible, Biblical Interpretation Series, 26 (Leiden: E.J. Brill, 1997), 92-107, on the discrepancy between the notion of incest laid out in the legal collections and the presumably acceptable sexual unions found in the narrative texts. David P. Wright, “The Laws of Hammurabi as a Source for the Covenant Collection (Exodus 20:23-23:19),” Maarav 10 (2003): 11-87, makes a compelling argument that the Covenant Collection is directly dependent upon the Laws of Hammurabi. Considering the derivative nature of the Covenant Collection, it is highly unlikely that it was originally used for legislation in ancient Israel. Editor’s note: For a discussion of how the Covenant Collection utilizes, adapts and revises the Laws of Hammurabi, including those involving the cases of the pregnant woman injured during a fight and the goring ox laws, to reflect an Israelite sensibility in relation to justice and ethics, see David P. Wrigth, “How Exodus Revises the Laws of Hammurabi,” TheTorah (2019).

[22] Consequently, the Deuteronomist describes the wise king as one who internalizes the Torah, and this makes him capable to rule:

^{דברים יז:יח} וְהָיָה כְשִׁבְתּוֹ עַל כִּסֵּא מַמְלַכְתּוֹ וְכָתַב לוֹ אֶת־מִשְׁנֵה הַתּוֹרָה הַזֹּאת עַל־סֵפֶר מִלִּפְנֵי הַכֹּהֲנִים הַלְוִיִּם. ^יז:יט וְהָיְתָה עִמּוֹ וְקָרָא בוֹ כׇּל־יְמֵי חַיָּיו לְמַעַן יִלְמַד לְיִרְאָה אֶת־יְ־הֹוָה אֱלֹהָיו לִשְׁמֹר אֶת־כׇּל־דִּבְרֵי הַתּוֹרָה הַזֹּאת וְאֶת־הַחֻקִּים הָאֵלֶּה לַעֲשֹׂתָם. ^יז:כ לְבִלְתִּי רוּם־לְבָבוֹ מֵאֶחָיו וּלְבִלְתִּי סוּר מִן־הַמִּצְוָה יָמִין וּשְׂמֹאול לְמַעַן יַאֲרִיךְ יָמִים עַל־מַמְלַכְתּוֹ הוּא וּבָנָיו בְּקֶרֶב יִשְׂרָאֵל.

^{Deut 17:18} When he is seated on his royal throne, he shall have a copy of this Teaching written for him on a scroll by the Levitical priests. ^17:19 Let it remain with him and let him read in it all his life, so that he may learn to revere YHWH his God, to observe faithfully every word of this Teaching as well as these laws. ^17:20 Thus he will not act haughtily toward his fellows or deviate from the Instruction to the right or to the left, to the end that he and his descendants may reign long in the midst of Israel.

While he is supposed to “observe faithfully every word of this Teaching as well as these laws” and “not act haughtily toward his fellows or deviate from the Instruction to the right or to the left,” it is quite clear that the law does not provide all the details necessary for judging. The Torah rather provides the wisdom necessary for the ability to rule justly: “Let it remain with him and let him read in it all his life, so that he may learn to revere YHWH his God.” Actual law is equated with justice more in the sense of an abstract concept that the magistrate seeks to discern, and in that process, he may be informed by those written legal collections that his elite education has exposed him to and that may provide examples, guidance and precedence.

[23] Lefebvre, Collections, Codes, and Torah; Raymond Westbrook, “The Nature and Origins of the Twelve Tables.” ZSRG 105 (1988): 74–121; cf. Vroom, The Authority of Law in the Hebrew Bible and Early Judaism, 19–26.

[24] This need not mean that these legal collections must be shaped by social circumstances, since inner-scribal exegesis and interpretation also influence legal development. Borrowing from neighboring cultures and systems within an elite educational context is another important factor, as Fitzpatrick-McKinley, The Transformation of Torah, has shown. On the other hand, such processes are not isolated from the social and political context. See Kazen, “The Changing Character of Torah Law,” 78.

[25] Editor’s note: For a discussion of the similarities and differences between the slave laws in each of these collections and what they might reflect in terms of the relationship between and relative dating of each, see Zev Farber, “The Hebrew Slave: Exodus, Leviticus, and Deuteronomy,” TheTorah (2015).

[26] Editor’s note: See Hacham Isaac S.D. Sasoon, “The Priestly Repudiation of Yibbum,” TheTorah (2016) for a discussion and explanation of the differences between the Deuteronomic and priestly laws regarding Yibbum (the practice of  marrying a childless widow to her husband’s brother).

[27] Editor’s note: For a comparison of these laws and a discussion of how the differences are explained, see Zev Farber, “Making Ma’aser Work for the Times,” TheTorah (2015).

[28] Editor’s note: See the discussion in Eve Levavi Feinstein, “Sex During Menstruation: From Impurity to Pollution,” TheTorah (2016).

[29] Kazen, “The Changing Character of Torah Law,” 79.

[30] Peter Frei and Klaus Koch, Reichsidee und Reichsorganisation im Perserreich, OBO 55 (Freiburg: Universitätsverlag; Göttingen: Vandenhoeck & Ruprecht, 1984); Peter Frei, “Persian Imperial Authorization: A Summary,” in Persia and Torah: The Theory of Imperial Authorization of the Pentateuch, ed. Peter Frei and Klaus Koch, SBLSymS 17 (Atlanta: SBL Press, 2001), 5–40. Cf. Frank Crüsemann, The Torah: Theology and Social History of Old Testament Law, trans. Allen W. Mahnke (Edinburgh: T. & T. Clark, 1996); Fitzpatrick-McKinley, The Transformation of Torah from Scribal Advice to Law ; Erhard Blum, Studien zur Komposition des Pentateuch, BZAW 189 (Berlin: De Gruyter, 1990); Kyong-Jin Lee, The Authority and Authorization of Torah in the Persian Period, CBET 64 (Leuven: Peeters, 2011); and somewhat differently Raymond Westbrook, “Biblical Law” in An Introduction to the History and Sources of Jewish Law, ed. N. S. Hecht, B. S. Jackson, S. M. Passamaneck, Daniella Piatteli, and Alfredo Rabello (Oxford: Oxford University Press, 1996), 1–17; idem, “Cuneiform Law Codes and the Origins of Legislation.” ZA 79 (1989): 201–22.

[31] E.g., Ezra 7:12–14, 25–26. Cf. Ezra 10:3; Neh 8–10. See authors in James W. Watts, ed., Persia and Torah: The Theory of Imperial Authorization of the Pentateuch, SBLSymS 17 (Atlanta: SBL Press, 2001). For a slightly different nuance, see Konrad Schmid, “The Persian Imperial Authorization as an Historical Problem and as a Biblical Construct: A Plea for Distinctions in the Current Debate,” in The Pentateuch as Torah: New Models for Understanding Its Promulgation and Acceptance, ed. Gary N. Knoppers and Bernard M. Levinson (Winona Lake: Eisenbrauns, 2007), 23–38. Editor’s note: See also the discussion of Yonatan Adler, “When Did Jews Start Observing Torah?” TheTorah (2022).

[32] As noted in Kazen, “The Changing Character of Torah Law,” 80 (n. 25), a compromise approach acknowledges some degree of Persian influence while questioning the existence of a consistent policy. Even if the likely fictional decree of Artaxerxes in Ezra 7 is placed in the Hellenistic period, it may still reflect awareness of Persian tolerance for local traditions and cultic practices. At the same time, the Torah, in both character and genre, does not by any standards correspond to a constitution.

[33] LeFebvre, Collections, Codes, and Torah, 146–82. Cf. Arie van der Kooij, “The Septuagint and Scribal Culture,” in XIV Congress of the IOSCS, Helsinki, 2010, ed. Melvin K. H. Peters (Atlanta: SBL Press, 2013), 33–39.

[34] But note that Sirach still treats the Torah mainly as a source of wisdom. It is common to date major parts of Ezra-Nehemiah to the Hellenistic period (cf. Jacob L. Wright, Rebuilding Identity: The Nehemiah-Memoir and Its Earliest Readers, BZAW 348 (Berlin: De Gruyter, 2004).

[35] These were often rooted in Greek and Roman literary and rhetorical methods of interpretation. See for example Philip S. Alexander, “Quid Athenis et Hierosolymis? Rabbinic Midrash and Hermeneutics in the Graeco-Roman World,” in A Tribute to Geza Vermes: Essays on Jewish and Christian Literature and History, ed. Philip R. Davies and Richard T. White, JSOTSup 100 (Sheffield: Sheffield Academic Press, 1990), 101–124; David T. Runia, Philo of Alexandria and the Timaeus of Plato (Leiden: Brill, 1986), 476–515; Richard Hidary, Rabbis and Classical Rhetoric: Sophistic Education and Oratory in the Talmud and Midrash (Cambridge: Cambridge University Press, 2018), 174–215.

[36] Thomas Kazen, “The Role of Law in the Formation of the Pentateuch and the Canon,” in The Oxford Handbook of Biblical Law, ed. Pamela Barmash (New York: Oxford University Press, 2019), 257-274 (269), who also notes that the earlier perspective appears to have persisted. The tensions that arose as a result are reflected in the conflicts and negotiations over legal interpretation and practice between various groups in Second Temple and Early Judaism.