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<ul><li><p>NELLCONELLCO Legal Scholarship RepositoryNew York University Public Law and Legal TheoryWorking Papers New York University School of Law</p><p>8-1-2010</p><p>Nationhood and Law in the Hebrew BibleGeoffrey P. MillerNew York University, geoffrey.miller@nyu.edu</p><p>Follow this and additional works at: http://lsr.nellco.org/nyu_plltwpPart of the Arts and Entertainment Commons, Constitutional Law Commons, Jurisprudence</p><p>Commons, Legal History, Theory and Process Commons, and the Religion Law Commons</p><p>This Article is brought to you for free and open access by the New York University School of Law at NELLCO Legal Scholarship Repository. It has beenaccepted for inclusion in New York University Public Law and Legal Theory Working Papers by an authorized administrator of NELLCO LegalScholarship Repository. For more information, please contact tracy.thompson@nellco.org.</p><p>Recommended CitationMiller, Geoffrey P., "Nationhood and Law in the Hebrew Bible" (2010). New York University Public Law and Legal Theory WorkingPapers. Paper 220.http://lsr.nellco.org/nyu_plltwp/220</p><p>http://lsr.nellco.org?utm_source=lsr.nellco.org%2Fnyu_plltwp%2F220&amp;utm_medium=PDF&amp;utm_campaign=PDFCoverPageshttp://lsr.nellco.org/nyu_plltwp?utm_source=lsr.nellco.org%2Fnyu_plltwp%2F220&amp;utm_medium=PDF&amp;utm_campaign=PDFCoverPageshttp://lsr.nellco.org/nyu_plltwp?utm_source=lsr.nellco.org%2Fnyu_plltwp%2F220&amp;utm_medium=PDF&amp;utm_campaign=PDFCoverPageshttp://lsr.nellco.org/nyu_law?utm_source=lsr.nellco.org%2Fnyu_plltwp%2F220&amp;utm_medium=PDF&amp;utm_campaign=PDFCoverPageshttp://lsr.nellco.org/nyu_plltwp?utm_source=lsr.nellco.org%2Fnyu_plltwp%2F220&amp;utm_medium=PDF&amp;utm_campaign=PDFCoverPageshttp://network.bepress.com/hgg/discipline/832?utm_source=lsr.nellco.org%2Fnyu_plltwp%2F220&amp;utm_medium=PDF&amp;utm_campaign=PDFCoverPageshttp://network.bepress.com/hgg/discipline/589?utm_source=lsr.nellco.org%2Fnyu_plltwp%2F220&amp;utm_medium=PDF&amp;utm_campaign=PDFCoverPageshttp://network.bepress.com/hgg/discipline/610?utm_source=lsr.nellco.org%2Fnyu_plltwp%2F220&amp;utm_medium=PDF&amp;utm_campaign=PDFCoverPageshttp://network.bepress.com/hgg/discipline/610?utm_source=lsr.nellco.org%2Fnyu_plltwp%2F220&amp;utm_medium=PDF&amp;utm_campaign=PDFCoverPageshttp://network.bepress.com/hgg/discipline/904?utm_source=lsr.nellco.org%2Fnyu_plltwp%2F220&amp;utm_medium=PDF&amp;utm_campaign=PDFCoverPageshttp://network.bepress.com/hgg/discipline/872?utm_source=lsr.nellco.org%2Fnyu_plltwp%2F220&amp;utm_medium=PDF&amp;utm_campaign=PDFCoverPageshttp://lsr.nellco.org/nyu_plltwp/220?utm_source=lsr.nellco.org%2Fnyu_plltwp%2F220&amp;utm_medium=PDF&amp;utm_campaign=PDFCoverPagesmailto:tracy.thompson@nellco.org</p></li><li><p> 1</p><p>Nationhood and Law in the Hebrew Bible </p><p>Geoffrey P. Miller New York University (NYU) - School of Law </p><p>Abstract: This paper continues the analysis of political theory in the Hebrew </p><p>Bible. The Book of Exodus identifies nationhood as the best form of political </p><p>organization. Nationhood, in turn, requires self-government, centralized institutions, and </p><p>control over territory. The narrative of Mount Sinai addresses the topic of centralized </p><p>institutions. The author here distinguishes and insightfully analyzes four types of legal </p><p>institution: the fundamental commitment, the rule of recognition, fundamental law, </p><p>ordinary law, and rules pertaining to the organization of government. </p><p>* * * </p><p>This article analyzes the Bibles account of Israels reception of the law on Mount </p><p>Sinai and other wilderness locations. I argue that these narratives form part of an </p><p>extended analysis of political ideas a political philosophy which rivals in </p><p>sophistication, and probably predates, the theories developed by Plato and Aristotle in the </p><p>Greek world. </p><p>As outlined in prior work, the Garden of Eden story serves as a prolegomenon to </p><p>the Bibles political theory and also offers an impressive analysis of the question of </p><p>political obligation why people are required to obey their political rulers. The stories of </p><p>the Dark Age after the expulsion of Adam and Eve address the question of anarchy: </p><p>whether it is possible for human beings to lead a good and decent life in the absence of </p></li><li><p> 2</p><p>government and law (the authors answer is no).1 The history of the patriarchs and </p><p>matriarchs from the book of Genesis address the nature, source and legitimacy of power </p><p>in families. In the first fourteen chapters of the book of Exodus, the author demonstrates </p><p>that political organization is the only feasible means for governing groups of substantial </p><p>size; argues that nationhood is preferable to nomadism, dependency, and slavery as a </p><p>form of political organization; and identifies self-governance, law, and control over </p><p>territory as the essential attributes of nationhood. The Israelites achieve self-governance </p><p>in the struggle with Pharaoh and the escape at the Sea of Reeds. The narrative of Mount </p><p>Sinai provides the author with a frame within which to examine the second fundamental </p><p>attribute of nationhood, namely the establishment of legal institutions. </p><p>The Importance of Sinai </p><p>Few would dispute that the revelation on Sinai is a central event in the biblical </p><p>narrative. It is here that the author explores in greatest detail the concepts of revelation </p><p>and consent as justifications for political authority. And it is here that God establishes the </p><p>law that will govern the people of Israelnot only the written law as recorded in the </p><p>Bible but also, in Jewish tradition, the unwritten law that God gave to Moses orally and </p><p>that the sages developed in the Talmud. </p><p>The author signals the centrality of Sinai by its location in the structure of </p><p>tradition extending from the beginning of the book of Exodus to the end of book of </p><p>Joshua.2 This body of narrative takes the form of a chiasmus (a figure of speech, common </p><p>1 I use the term author as a conventional way of denoting the creator of the biblical narratives without implying anything in particular about the identity of this source. 2 See Noth, Exodus, 12 (If we look at the Pentateuch as a whole, it forms a frame round the Sinai theme and in its turn is framed by the two matching themes of the Exodus from Egypt and the Entry into the Promised Land. Thus, although there is at first sight a bewildering abundance of such different individual </p></li><li><p> 3</p><p>in biblical and other ancient literature, in which a point is developed through parallel </p><p>elements on either side of a central motif).3 The Israelites begin in slavery, engage in </p><p>conflict with the people of the land, pass over a body of water that miraculously parts for </p><p>them, wander in the wilderness, receive the law on a sacred mountain, wander in the </p><p>wilderness, pass over a body of water that miraculously parts for them, engage in conflict </p><p>with the people of the land, and wind up in freedom. The chiasmus takes the following </p><p>form: </p><p> A. Enslavement B . Conflict with the people of the land C. Departure from the land D. Miraculous passage over a body of water E. Wandering in the wilderness F. Receipt of the law E. Wandering in the wilderness D. Miraculous passage over a body of water C. Entry into the land B. Conflict with the people of the land A. Freedom </p><p>The central element of this chiasmusand therefore the matter that the author most </p><p>wishes to emphasizeis the giving of the law to the Israelites on Mount Sinai. The </p><p>author, accordingly, has structured his account in such a way as to highlight and </p><p>emphasize the Sinai episode as the defining moment of the history recounted in these </p><p>texts. </p><p>Recent scholarship has recognized yet another way in which the author stresses </p><p>the centrality of the events at Sinai. In the course of the narrative of the flight from Egypt </p><p>and the theophany at Sinai, the author frequently interposes imagery associated with </p><p>narratives, the Pentateuchal traditions have been arranged under a clear pattern which holds this unusual work together and makes it clear that the individual booksand among them Exodusare just members of a greater whole). 3 See Adele Berlin, The Dynamics of Biblical Parallelism (Bloomington: Indiana University Press, 1985). </p></li><li><p> 4</p><p>cultic observances. The book of Exodus is explicit on this point: Moses demands that the </p><p>Israelites be allowed to depart so that they can perform sacrifices in the desert (Exod </p><p>3:18; 5:3; 8:27). The time period Moses requests for the voyage to the sacrificial place</p><p>three daysis a conventional time for pilgrimage journeys (cf. Gen 22:4). As Mark S. </p><p>Smith and Elizabeth Bloch-Smith observe, the literary pattern of the book of Exodus is </p><p>that of pilgrimagethe sacred journey to the temple and the prayers and sacrifices that </p><p>ensuegiving the entire book a cultic sensibility.4 The chiastic structure noted above </p><p>suggests an extension of this pilgrimage pattern. The institution of pilgrimage involves </p><p>not only a voyage to a shrine or sacred spot; it also requires a return from the destination. </p><p>The same families and groups who mustered in the outlands to travel to the shrine would </p><p>travel home afterward, usually together. Chaucers Canterbury Tales provides an </p><p>analogy: it contemplates that each pilgrim would tell two tales on the way to Canterbury </p><p>and also two tales on the way back. The fellowship was not going to disperse after the </p><p>visit to the shrine. Likewise the Israelites in the book of Exodus do not disperse after the </p><p>theophany at Sinai; they continue on their wanderings and separate only after their </p><p>(partial) conquest of the promised land. The chiastic structure of the books of Exodus </p><p>through Joshua suggests that the back end of the storythe Israelites journey from Sinai </p><p>to the promised landis also part of the pilgrimage pattern in these books. In the biblical </p><p>story, of course, unlike the Canterbury Tales, the travelers do not return home to their </p><p>starting place but rather continue on to a new home. But symbolically the cases are </p><p>parallel. The condition of the Israelites in Egypt can be characterized as one of living in a </p><p>spiritually (and physically) oppressed condition; the giving of the law at Sinai represents </p><p>4 Smith and Bloch-Smith, The Pilgrimage Pattern in Exodus, 16. Smith and Bloch-Smith focus on the Priestly redaction of the book. </p></li><li><p> 5</p><p>the liberation of the spirit that is achieved at the pilgrimage shrine; and the journey to the </p><p>promised land equates with the return voyage of the pilgrims relieved of spiritual </p><p>burdens. Egypt and the promised land, in this pattern, are two versions of the same place: </p><p>the difference is that at the beginning the subjects are oppressed and at the end they are </p><p>liberated. </p><p>The author achieves multiple purposes by associating the exodus story with </p><p>pilgrimage. He enhances the impact of his narrative by comparing the exodus events with </p><p>an institution important to his readers. He provides a narrative grounding for later </p><p>pilgrimage institutions by referring to a fundamental event in the history of the Israelite </p><p>people. He saves Moses request to Pharaoh from the criticism that it was a lie, even if a </p><p>justified one: if the exodus was in fact a form of a pilgrimage, then Moses request that </p><p>the Israelites be allowed to leave to perform a sacrifice in the desert was substantially </p><p>true, at least on a metaphorical level. Finally, allusions to pilgrimage in Exodus and other </p><p>biblical books may have tended to validate the authenticity of the text by associating it </p><p>with a genre of pilgrimage literature, now lost, that was extant in the society of ancient </p><p>Israel.5 </p><p>Why does the author make the Sinai narrative the watershed of this mass of </p><p>tradition? From the standpoint of political theory, the implication is that the work done at </p><p>Sinaithe reception of lawis more significant than the other fundamental attributes of </p><p>nationhood. The reason for this priority may have to do with the fact that even though all </p><p>three attributes are fundamental, the legal institutions of government tend to be more </p><p>salient once a nation has been established. In the absence of a crisis, both self-governance </p><p>5 Similar traditions of storytelling may be instanced in the Islamic pilgrimage of the Hajj. See Inea Bushnaq, trans. and ed., Arab Folktales (New York: Pantheon, 1986). </p></li><li><p> 6</p><p>and territory tend to be taken for granted; but the operation of governmentthe day-to-</p><p>day administration of the laws and the ebb and flow of political power through which </p><p>tose laws are exercisedare of continuing and immediate relevance to the people. For </p><p>this reason, the analysis of the institutions of government and law is at the forefront of the </p><p>authors attention. </p><p>The Rule of Law </p><p>The author uses the Sinai narrative to make several observations about the </p><p>legitimacy of law in general. These considerations are today discussed under the rubric of </p><p>the rule of lawa term of uncertain scope that refers generally to the regular and </p><p>impartial administration of public rules.6 Any just political system, it is said, should </p><p>administer its laws according to the requirements of the rule of law. The Sinai narrative </p><p>codes certain elements that can be understood from a modern perspective as </p><p>implementing rule-of-law values. </p><p>1. The rule of law suggests that unless there is a good reason to make exceptions, </p><p>laws should apply equally to all persons similarly situated.7 The author codes this </p><p>principle with the fact that God announces the law from the top of a mountaina detail </p><p>6 Rawls, A Theory of Justice, 235. See also Jeremy Waldron, The Concept and the Rule of Law, GLR 43 (2008): 161, here 6 (describing the rule of law as a multi-faceted ideal centrally concerned with a requirement that people in positions of authority should exercise their power within a constraining framework of public norms, rather than on the basis of their own preferences, their own ideology, or their own individual sense of right and wrong); Lon Fuller, The Morality of Law (New Haven: Yale University Press 1964); Rawls, A Theory of Justice, 5460, 23543; Richard H. Fallon, Jr., The Rule of Law as a Concept in Constitutional Discourse, CLR 97 (1997): 156; John Hasnas, The Myth of the Rule of Law, WLR (1995): 199233; Andrei Marmor, The Rule of Law and Its Limits, LP 23 (2004): 143; Margaret Jane Radin, Reconsidering the Rule of Law, BULR 69 (1989): 781819; Raz, The Rule of Law and Its Virtue, in The Authority of Law, 210, 224; Rolf Sartorius, The Rule of Law as a Law of Rules, UCLR 56 (1989): 117588; Robert S. Summers, The Principles of the Rule of Law, NDLR 74 (1999): 1691712; Brian Z. Tamanaha, On the Rule of Law: History, Politics, Theory (Cambridge: Cambridge University Press, 2004); Jeremy Waldron, The Rule of Law in Contemporary Legal Theory, Ratio Juris 2 (1989): 7996. 7 See Herbert Wechsler, Toward Neutral Principles of Constitutional Law, HLR 73 (1959): 1-35. </p></li><li><p> 7</p><p>that symbolizes generality through its line-of-sight attributes. Because the mountaintop is </p><p>elevated, it is in the line of sight of the foot of the moun...</p></li></ul>