January 23, 2007

posted by Nate Oman

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.

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:

Ancient Hebrew society did not have much use for agreements and contracts. A person willing to make a binding promise would give it a religious basis by attaching an oath to it. God himself was thus involved in the agreement, both as a witness to the undertaking and as a judge in case of its violation. The greater part of rights and duties was founded upon rules of kinship, while obligations between members of different clans were mainly the result of wrongful acts.

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!

Interesting. The stone is like a paper contract. It's not the agreement itself. It's a manifestation of the agreement.

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.

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."