Shechem and Consideration
posted by Nate Oman
I have been thinking about the value of the Bible as a pedagogical tool. I am not much of a fan of the notion that the common law somehow rests on the Judeo-Christian tradition or that the Ten Commandments are the basis of our modern legal system. To be sure, I do think that the Bible has had its influence on our law, but if one is seeking for origins of the common law, I think that feuding norms among the pagan barbarians of northern Europe is a better bet. Still, the Bible is full of law, and I think that this law is useful for its very strangeness. (Also, as a Mormon, I labor under some religious guilt due to the fact that Brigham Young and other early Mormon authorities taught repeatedly that lawyers were the spawn of Satan and essentially on the road to hell. I take comfort in the fact that God is clearly a lawyer.)
For example, a few days ago I gave a brief lecture on the history of contract to my students. One of the points I wanted to make is that contract law is a relatively late development. Early legal systems seem to go to work immediately on issues like ownership of land, inheritance, and crime. Contract comes only later. I illustrated the point by noting that there is an enormous amount of law in the Pentateuch governing everything from ritual purity to what oxen may or may not eat while plowing the fields. There is not much in there, however, on contracts. To be sure there are rules about debt, and covenant, which is a vaguely contract-y idea, figures prominently in Biblical stories. Still, you’ll search Exodus to Deuteronomy in vain for anything like a general theory of contract.
Here is another possible example: Understanding the usefulness of consideration as a formality can be tricky. Fuller argued that forms serve an evidentiary function, but what exactly do we mean by an evidentiary function? Consider the following story from the Book of Joshua. At the end of his life, Joshua gathers the Children of Israel together at Shechem and offers them a choice: Will they promise to serve the God of Israel or not? The Children of Israel insist that they want to covenant to follow Yahweh, and Joshua then leads them through various formalities to make the commitment binding. The text says:
So Joshua made a covenant with the people that day, and made statutes and ordinances for them at Shechem. . . . And he took a great stone, and set it up there under the oak in the sanctuary of the Lord. And Joshua said to all the people, “Behold, this stone shall be a witness against us; for it has heard all the words of the Lord which he spoke to us; therefore it shall be a witness against you, lest you deal falsely with your God.” (Joshua 24:25-27 (RSV))
Why the rock? It is a formality that Joshua goes through to make the promise binding, and its purpose is to provide future evidence of the covenant. Should any Israelite in the future try to serve other gods, then Yahweh can insist that he or she has promised to serve only him. Should the erring Israelite have a convenient lapse of memory, then God can point to the rock. “Look,” he can say, “that rock stands there under the oak tree because you made the promise at Shechem with Joshua.” The formality reduces the problem of proving the contract ex post.
I love this story because of its strangeness. (I always imagine Dell and Microsoft entering into a licensing agreement and setting up a sacred rock someplace in Seattle to memorialize the deal.) Furthermore, it is precisely the strangeness of the story that makes it useful for thinking about the law. Our problem is that we forget how weird our own laws are and therefore can have a hard time seeing clearly what they are doing. In this sense, the Bible is pedagogically useful precisely because it has lost most of its salience in our culture. Most students (even in southern Virginia) are unlike to have the story of the Shechem Covenant at their fingertips. It sounds wierd to them, and that is useful.
Or it may simply be my perverse love of legal anachronism.
January 23, 2007 at 1:17 pm
Posted in: Contract Law & Beyond, Education, Law School (Teaching), Law and Humanities, Religion, Weird
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Responses (6)
Keith Sharfman - January 23, 2007 at 2:46 pm
Nice post, Nate. The formalities associated with covenantal commitments are interesting phenomenon. Cf. the animals and torch utilized in God’s covenant with Abraham.
But is the objective really evidentiary? God will never need to “prove” breach before an impartial tribunal. His remedies for breach are entirely of the self-help variety. Might the rock’s purpose simply be hortatory rather than evidentiary, like the stone tablets associated with the encounter at Sinai?
For what it’s worth, the Pentateuch does contain some non-theological contracts in the book of Genesis that may be of interest–e.g., Abraham’s purchase of a burial plot for Sarah from Ephron the Hittite; Abraham’s agency agreement with his servant Eliezer; Esau’s sale of the birthright to Jacob for a mess of porridge; and Jacob’s employment agreement (and later joint venture) with Laban. For a fascinating modern legal analysis of these and other contracts, see Geoffrey P. Miller, Contracts of Genesis, 22 Journal of Legal Studies 15(1993). There are also various regulations in Deuteronomy (e.g., the prohibitions against lending at intereest, selling ancestral land in perpetuity, and withholding a worker’s wages) that would not make any sense unless one presupposes a background rule in which contracts are basically enforceable.
Nate Oman - January 23, 2007 at 3:34 pm
Keith: Perhaps the stone is simply horotary, but the text says that it is set up to act as a witness, which suggests an evidentiary function.
Incidentally, while I agree that there are regulations of relations in Deut. that we would call contractual, I don’t think that it follows that there was a general law of contracts. There may have simply been rules governing particular status based relationships, e.g. hire, debt, master-servant, etc. There may have been some voluntary element in the relationship, but it doesn’t follow that they were contractual in a modern sense.
In Hebrew Law in Biblical Times, Ze’ev Falk writes:
Obviously, people have always had deals and agreements, but the idea that there is a general set of rules governing all voluntary obligations is a pretty recent phenomena.
Keith Sharfman - January 23, 2007 at 4:34 pm
The Falk passage is interesting. Perhaps he has in mind the oath between Jacob and Laban recorded in Genesis 31:50-52 (”God is a witness between me and you”; “the monument shall be witness”). But as I say in the first comment, it’s simply impossible way to understand a great many of the rules recorded in Deuteronomy (as well as Exodus and Levitcus) without a background principle that the Bible regards contracts as generally enforceable.
Your reading of “witness” in Joshua 24 is supported by Genesis 21:30 (”take these seven ewes from me, that it may serve me as testimony that I dug this well”).
But on the other hand, the word “witness” in Joshua may not be intended to be taken so literally. It may instead by used in the same way as “testify” in Deuteronomy 8:19 (”I testify against you today that you will surely perish”–a non-evidentiary use of the word testify). Rashi’s commentary on Joshua suggests a parallel to the stones at Sinai, which were not evidentiary but rather hortatory. God Himself is referred to elsewhere as a “Rock” (see Deut. 32:4), suggesting that stone may be a reminder of Him.
Here’s a question. How would you read Deueternomy 32:1 (”Give ear, O heavens, and I will speak; and may the earth hear the words of my mouth”) or the similar passage in Isaiah 1:2 (”Hear, O heavens, and give ear, O earth”)? Are heaven and earth literal witnesses in these contexts? Another approach would be to understand the invocation of heaven or earth or a stone as a way to signify that a statement should be understood as eternal–as continuing to apply beyond the mortal lives of those persons present to hear the statement. On this view, the stone isn’t a literal witness but rather a signifier of the statement’s enduring applicability.
In the same way, this comment’s length “gives witness” to how simulating your initial post was!
Bruce Boyden - January 23, 2007 at 5:21 pm
Interesting. The stone is like a paper contract. It’s not the agreement itself. It’s a manifestation of the agreement.
Nate Oman - January 24, 2007 at 1:42 pm
Keith: It is interesting that Rashi associates the Shechem stone with Siani. I would have thought that a more natural association would be with the stone pillars that Joshua sets up at the beginning of the Book of Joshua to commemorate the passing of the River Jordon by the Children of Israel.
Isaiah is speaking poetically as is Deuteronomy, so I am less inclined to take their statements literally. On the other hand, the Shechem passage at the end of Joshua is not written in verse. Furthermore, it describes what purports to be a legal transactions. For example, in the ellipses in the passage above are for the part of the story where Joshua writes the covenant in the book of the law of the lord. Writing down a contract strikes me as the quintessentialy evidentiary act. The rock would then be a sort of repitition of the written record of the contract, a writing for the illiterate if you will.
As for the rock as witness, my inclination is to take it literally as meaning that the rock actually hears the word of the contract and can be made by God to testify of its truth. Of course, this may simply be part of my perverse desire to retain the strangeness of biblical stories.
Keith Sharfman - January 24, 2007 at 5:12 pm
Fair enough, Nate. Your interpretation is certainly plausible.
One additional nuance to consider is that the Hebrew word for witness is “ed” (which is in the masculine form) but the word actually used in Joshua is “l’edah”–which, after stripping away the “l” prefix that means “as,” is a feminine form of “ed” that might be translated as “witness” but can also be translated as “testament” or “monument.”
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