Biblical Law and Contemporary Law: Some Thoughts on Copyright Law, Facts, and History

I spent a chunk of time at work last week reading about copyright and fair use laws. Unsurprisingly, the laws surrounding copyright and fair use are quite complex and situational. Particularly interesting to me was the conversation about public domain, “creative materials that are not protected by intellectual property laws such as copy right, trademark, or patent laws. The public owns these works, not an individual author or artist. Anyone can use a public domain work without obtaining permission, but no one can ever own it” [1]. Simply put, people can use public domain material in their content because the material itself belongs to the public.

Laws, for example, are considered public domain. In a 2002 case [2], a court ruled that an entity cannot sue for copyright infringement regarding laws, such as building codes. The court justified this ruling by noting that “when a model code is enacted into law, it becomes a fact—the law of a particular local government” [3]. The fact in this context, though, is somewhat ambiguous. Indeed, the Supreme Court doesn’t explicitly call laws fact; however, laws parallel census data, scientific facts, historical data, and biographical data inasmuch as “they may not be copyrighted and are part of the public domain available to ever person” [4].

This framework—namely, the modern US legal conceptions of law in relation to data and facts—raise interesting issues regarding biblical and ancient Near Eastern law: To what extent have modern US legal conceptions of law and copyright impacts how we approach and think about the function and creation of law (broadly construed) in the ancient Near East? More specifically, how does contemporary copyright law impact studies regarding things like innerbiblical exegesis, Pentateuch studies, law in the Hebrew Bible, redaction criticism (et. al), and in light of Milstein’s recent work, ancient law more broadly? (Literary studies undoubtedly play a huge role, as well as other methodologies. Still, identifying how this particular issues impacts conclusions and studies, if at all, might be a worthwhile endeavor.)

While I can’t answer these questions here, these questions are part of the reason why I appreciated Sara Milstein’s book Making A Case. Rather than framing biblical texts through a distinctly modern legal framework, her work takes into greater consideration how the Hebrew Bible fits with broader historical trends. In doing so, her approach to biblical law moves beyond other approaches that contemporary law impacts to a great extent.

The problem of copyright and public domain in US law likewise raises another question: To what extent did facts exist in ancient Near Eastern law? And how did different ancient communities draw the line between fact and opinion, if at all? Again, I have no answer to this question, but the issue is worth thinking about. (At least I think the issue is worth considering.)

[1] https://fairuse.stanford.edu/overview/public-domain/welcome/#are_local_laws_in_the_public_domain

[2] Veeck v. Southern Building Code Congress International, Inc., 293 F. 3d 791 (5th Cir. 2002).

[3] https://fairuse.stanford.edu/overview/public-domain/welcome/#are_local_laws_in_the_public_domain

[4] https://law.justia.com/cases/federal/appellate-courts/F3/293/791/521953/

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Review: “Making a Case: The Practical Roots of Biblical Law” by Sara J. Milstein

Sarah Milstein’s goal in Making a Case: The Practical Roots of Biblical Law is straightforward: to show why a range of biblical texts in the Pentateuch likely originated as pedagogical texts written by scribes. As such, Milstein’s discussion provides a fresh, well-reasoned alternative to more traditional historical-, form-, and redaction-critical approaches to the Pentateuch. Within this review, I will summarize Milstein’s work, highlight my criticisms, and identify places where she could push the ideas further.

In the Introduction, Milstein provides a broad overview of law collections in the ancient Near East, the genre typically used to explain the Pentateuch’s laws. Rather than using Mesopotamian law collections as an analogue for explaining texts like the Covenant Code or Deuteronomy 19-25, she instead proposes these biblical texts “are closer in form and function to the Mesopotamian corpus of legal-pedagogical texts” (15), a relatively difficult-to-access corpus due to resources “scattered in various journals and volumes” (16). As such, biblical scholarship using such material is relatively rare.

In Chapter 1, Milstein provides a broad overview of the role of legal texts in Mesopotamian scribal education. To accomplish this task, she walks through the centrality of model contracts, which overlap and parallel “in content, format, and terminology with functional contracts, legal phrasebooks, and precepts from the law collections” (26). Additionally, Milstein highlights fictional cases. Like model contracts, fictional cases overlap with some Mesopotamian laws. Equally important were legal-pedagogical texts in which scribes copied short series of laws. Notably, Milstein draws upon Canaanite parallels from the Middle Bronze Age, indicative that legal-pedagogical textual reproduction has a precedent in the Levant. (Notably, Milstein does not adequately address the problem of these Canaanite legal-pedagogical scribal texts being in the Middle Bronze Age as opposed to Israelite and Judean texts being from the Iron Age.) Finally, Milstein identifies legal phrasebooks and sequences of contractual clauses as important because these texts reflect combinations of contractual phrases and model contracts. Ultimately, Milstein effectively shows that legal-pedagogical texts, as opposed to solely Mesopotamian law collections, provide a more helpful explanatory model for explaining the roots of biblical law.

NB: This has implications attesting to the practical value of redaction. That is, redaction of biblical texts may have been far more than simply “religion” but rather was associated with everyday scribal education. We see this even in my work with Quanta Technology, where I have edited SOPs as a new employee. Indeed, these are perhaps my own “scribal exercises,” but then my manager reviews them to create a final version. As such, we can start to think beyond even a simple model of a single scribe and instead expand our thinking to account for different hands redacting and editing legal-pedagogical texts in their Sitz im Lebens.

In Chapter 2, Milstein uses the framework of legal-pedagogical texts to explain Deuteronomy’s development as a Hebrew Legal Fiction (HLF). After identifying problems with viewing Deuteronomy 12-26 as a “family law collection,” she highlights two particular case collections (Deut 22:13-21 and 22:23-29) reflecting law clusters. Rather than being real law clusters, though, she argues that these groupings in light of their redaction additions give the “illusion of a cluster of law,” a repurposed “old ‘private’ case concerning false accusations for use in a cluster of law that recast adultery as a public offense, consisting of a case and a counter-case.” She highlights similar texts: Deut 19:3-14 and Deut 22:23-29. The root for each of these cases, Milstein contends, exemplify characteristics similar the Mesopotamian legal fictions: colorful features and unusual legal situations; resonance with contracts; overlapping terminology; abundant social roles; variations on roots; and exchanges of money and pecuniary penalties. Because such themes overlap with Mesopotamian fictional cases, terms with phrasebooks, and root variation with legal-pedagogical texts, Milstein suggests that we should view such texts as being rooted in legal-scribal education. Only after these HLFs were incorporated into Deuteronomy and later scribes addended these texts did they begin to look like law collections, hence Milstein’s claim that “we have instead [. . .] the illusion of a law collection, facilitated by the later scribes’ employment of the same methods of composition and format that are present in the collections” (88).

Milstein’s line of thought is well thought out and provides a helpful alternative to thinking of biblical law solely as law collection, instead suggesting a more historically grounded origin through Mesopotamian legal fictions as an analogue. Her argument, though, may have implications beyond the Pentateuch. In particular, her argument and reframing of some biblical laws’ roots as Hebrew legal fictions may be applicable to the book of Ruth. After all, recent scholarship has explored the legal aspects of Ruth (e.g., Simeon Chavel’s recent article, as well as Brad Embry’s work). Moreover, Ruth is often used for Hebrew reading courses due to its seeming simplicity (based on my experience). Perhaps this is in part because Ruth was written as an amalgam multiple genres as a sort of scribal exercise: historiography, novella, and Hebrew legal fiction.

In Chapter 3, Milstein identifies how certain HLFs in the Hebrew Bible don’t reflect the illusion of law collections, as identified in Chapter 2, but rather reflect HLFs modeled after contracts. After providing an overview of ancient Near Eastern contracts, Milstein analyzes Deuteronomy 25:5-10 to show how the text “echoes the format of contracts” (109) and may use general terminology because the text is meant to form a fictional case. Exodus 21:7-11 and Deut 21:15-17, Milstein contends, equally function as Hebrew legal fictions in contract forms based on ancient Near Eastern parallels. As such, she suggests these texts are “rooted in knowledge of a comparable body of Israelite/Judahite contracts and/or lists of standard contractual clauses” (115).

Throughout Chapter 3, Milstein draws from Nuzi, OB, and Emar contracts to justify her approach. While utilizing such sources is by no means problematic and is methodologically justifiable, her argument would be strengthened by drawing on more Neo-Babylonian, Assyrian, and Neo-Assyrian contracts. And in light of the greater Mediterranean connections with the Sea Peoples in the eleventh century, Phoenicians, and even Philistines, greater evidence could perhaps be found with an eye to Greek and Macedonian contracts, as well as others that I may be missing.

In Chapter 4, Milstein argues that the casuistic provisions in Exodus 21:18-22:16 were initially scribal exercises. Although this textual corpus indeed appears most frequently in discussions exploring the extent to which ancient Israelite/Judahite scribes reused other ancient Near Eastern law codes, Milstein instead highlights that the nature of ancient Near Eastern law codes was that they were used for law-oriented scribal training. Turning to Exodus 21:18-22:16, she shows how the biblical text is limited in nature, similar to how other law-training scribal texts are limited in nature. Additionally, the disjointed incoherence of the text, a well-established idea among scholars, indicates this text as a possible law-training scribal text. Finally, various other ambiguities may indicate scribal errors, which themselves indicate this text was possibly a school exercise.

In Chapter 5, Milstein brings the threads of Chapters 1-4 together and reflects more broadly on the benefits of approaching biblical law in terms of legal-pedagogical material. In particular, approaching biblical law through the lens of legal-pedagogical texts not only gives “us a sense as to how law functioned in a Near Eastern educational context, but the text-types themselves illuminate aspects of ‘biblical law’ that would otherwise not be visible” (154). Thus, the purported distinctiveness of biblical law in the early 1900s remains true, not because it reflected an old law collection or an Israelite/Judahite genre but “because its building blocks are rooted in legal-pedagogical exercises that originated in the sphere of scribal education” (157). Biblical law framed through legal-pedagogical exercises, as a result, no longer fits neatly into the stream of law collections but rather has “practical roots” so that “we can begin to reconstruct both the impetus for its emergence and the uniqueness of its trajectory” (157).

Overall, Milstein’s thesis is innovative and deserve further attention. Indeed, her approach challenges deeply traditional approaches to biblical scholarship. Even so, tradition does not mean something is correct, especially as she brings imperative textual data to the fore that biblical scholars often were not aware of. I highly recommend this book for any studies on biblical law. Ignoring such an engaging and innovative work (and one that is so well written!) would be a disservice to Milstein’s contribution to the field.