A people, says Grotius, can give itself to a king. According to Grotius, a people is therefore a people before it gives itself to a king. This gift itself is a civil act; it presupposes a public deliberation. Therefore, before examining the act by which a people elects a king, it would be well to examine the act by which a people becomes a people. For this act, being necessarily prior to the other, is the true basis of society.
–Jean-Jacques Rousseau Footnote 1
Introduction
E. P. Sanders famously coined the term “covenantal nomism” to describe what he understood to be the basic conceptualization of Israel’s relationship with God for a very broad swath of Jews in the Second Temple period and the rabbinic era. The noun “nomism” indicates the centrality of the law, dictated by God and carrying the expectation of obedience, along with the threat of punishment for disobedience. The qualifier “covenantal” indicates that the relationship between Israel and God is not exhausted by the law. The law exists, rather, in a covenantal framework, and God is committed to maintaining this covenantal relationship even in the face of transgression of the law, through mechanisms of atonement and an inclination to forgive. Sanders was responding to Christian scholarship that had branded rabbinic theology as marked by a fall from the covenantal grace of the Bible into a rigid legalism. Footnote 2 Not so, said Sanders: the covenant is just as central for the rabbis as for their forbears, and this is the case even though the term “covenant” (ברית) figures relatively rarely in rabbinic theological discourse. “The covenant was presupposed, and the Rabbinic discussions were largely directed toward the question of how to fulfill the covenantal obligations.” Footnote 3
In an overview of the place of covenant in Jewish thought of the Second Temple period, Lester Grabbe takes issue with Sanders’s focus on covenant. It is clear that most of the Jewish groups surveyed by Sanders believed that God cultivates a special relationship with Israel that moderates judgment for violation of the law. But only a few of these groups assigned any particular importance to the notion of covenant in conceptualizing this relationship; other groups gravitated toward different images and metaphors. Grabbe writes: “Sanders could with similar justification have coined the term ‘elective nomism,’ in light of texts that speak of God electing or choosing Israel, or ‘parental nomism,’ given the prevalent characterization of God as father.” Footnote 4
This article revisits the place of covenant in rabbinic literature, with a particular focus on Tannaitic literature in relation to its biblical and especially Second Temple background. My argument runs as follows. The first part, elaborating on Grabbe’s claims, establishes that the Qumran sectarians and their forbears were drawn to the concept of covenant not because this was the default theological framework for Second Temple Judaism broadly, but because it represented, especially through the possibility of covenant renewal, a powerful tool for defining and supporting group identity. I focus in particular on the Qumran sect’s approach to Deut 29, an especially important passage in the reception of biblical covenant theology. In the second part, I pivot to the role of covenant in rabbinic thought through detailed study of rabbinic interpretation of Deut 29 and related passages. I show that the rabbis engage with covenant not to define the relationship between God and Israel, or to distinguish their group from others, but to conceptualize the notion of a corporate Israel bound together as a community of mutual responsibility. Part three identifies an important background aspect to this development. I suggest that the rise of halakah as law in rabbinic circles exerted an individuating force that problematized the notion of corporate responsibility; covenant came to serve as a solution.
Covenant in Biblical, Proto-Sectarian, and Sectarian Literature
I do not attempt here a comprehensive summary of where and how covenant appears in biblical and Second Temple literature. Footnote 5 Rather, this part surfaces an interrelated set of functions that the concept serves for certain parts of these corpora. The biblical book in which covenant looms largest is Deuteronomy. The earliest edition of Deuteronomy may have begun with Deut 4:45, identifying the book as containing עדת “treaty stipulations,” and ended with Deut 28:69, which characterizes it as דברי הברית “the words of the covenant” that God commanded Moses to enact with Israel in Moab, “in addition to the covenant that He had made with them at Horeb.” The “book of the covenant” discovered in the temple and read aloud by Josiah to the people in the ceremony described in 2 Kgs 23 could represent this early edition of Deuteronomy. Footnote 6 The centrality of covenant in the book of Deuteronomy is bound up with covenant renewal in two ways. The book itself enacts a renewal of the Sinai covenant, and it served, in its historical context, as an occasion for covenant renewal under Josiah.
Covenant also figures importantly in the book of Jeremiah, which coalesced in circles connected with the book of Deuteronomy. In Jer 11, God calls upon Israel, through the mouth of Jeremiah, to “hear the words of this covenant.” The words are said to have been commanded to Israel “on the day that I took them out of the land of Egypt,” but the near deictic “this” suggests a contemporaneous manifestation of covenant, perhaps the Josianic covenant renewal. Footnote 7 In Jer 34, Jeremiah condemns the people because, having committed to setting free their Hebrew slaves, they once again enslaved them. Jeremiah characterizes this commitment as a covenant (Jer 34:15) that represented a return to the covenant that God formed with Israel “on the day that I took them out of the land of Egypt” (34:13). Footnote 8 In Jeremiah, as in Deuteronomy and 2 Kings, the invocation of covenant occurs in connection with covenant renewal.
Covenant renewal offers the opportunity to define community in three senses. Footnote 9 First, it surfaces the community’s membership: the members are those who participate in the renewal ceremony. Second, it enables modification of the terms of the covenant because the renewal framework can introduce differences in substance or at least in emphasis from previously accepted practice. Third, it offers a framework for historical review, or the construction of a usable past. These features of covenant renewal become especially visible in postexilic literature. All three of them are present in Neh 9–10, an extended passage that describes a pact (אמנה) entered into by the community of returnees from the exile “under oath and sanction, to follow the teaching of God, given through Moses the servant of God” (Neh 10:30). The ceremony begins with an extended summary of Israelite history that highlights God’s mercies and Israel’s sins (9:6–37). The pact takes the form of a written document that includes the names of the signatories, and thus of the covenantal community (10:1–30). Beyond the general commitment to follow the torah of Moses, it names specific undertakings, for example, forswearing intermarriage and abstaining from commerce on the Sabbath (10:31–40).
Ari Mermelstein has observed that the Nehemiah passage is the first among a number of covenantal texts in the Second Temple period that invoke as chief precedent not the covenant at Sinai but the covenant with Abraham: “You are the Lord God, who chose Abram, who brought him out of Ur of the Chaldeans…. Finding his heart true (נאמן) to you, you made a covenant with him to give him the land of the Canaanites, the Hittites, …” (Neh 9:7–8). Multiple considerations can motivate reliance on the Abrahamic covenant. In the case of Nehemiah, the prominence of inheritance of the land in the Abrahamic covenant offered an important orientation point for a community immediately concerned with the dynamic of exile and return. Footnote 10 Later sectarian and proto-sectarian texts, some of which we will turn to below, hearken back to Abraham because, as God’s only associate, an island of righteousness in a sea of sin, he furnishes a model for the authoring communities’ conception of themselves as a lonely bastion. Footnote 11
For our purposes, a related feature of the Abrahamic covenant stands out as particularly important: Abraham is a single individual. Footnote 12 For the rabbis, as I have intimated, and as we will see below, a central function of covenant is to conceptualize the interrelationships among Israelites as a corporate body. Given that Abraham is not, of course, a corporate body, the fact that the Abrahamic covenant is paradigmatic for the covenanters of Nehemiah and for sectarians in the Second Temple period is evidence that covenant does not do the same theological work for them as for the rabbis. Footnote 13
Covenant plays an organizing role in the book of Jubilees. Jacques van Ruiten counts some twenty-seven instances of the Ethiopic equivalent (kidān) and notes that the book recounts God’s entrance into a covenantal relationship with Noah, Abraham, Isaac, Jacob, and Israel. Footnote 14 The most extended and important reflection on covenant in Jubilees comes in the context of the first covenant, between God and Noah, in Jub. 6:1–38. Here, the speaking angel tells Moses that the covenant that he is to enter into at Sinai follows from God’s covenant with Noah (6:11). The angel reveals, moreover, that the covenant is to be renewed annually: “For this reason it has been ordained on the heavenly tablets that they should celebrate the Festival of Weeks during this month—once a year—to renew the covenant each and every year” (6:17). Footnote 15 It is presumably not a coincidence that Abraham celebrates the Festival of Weeks in connection with the renewal of the Noahide covenant (14:1, 19–20). Footnote 16
The Qumranites, who treasured Jubilees, also situated covenant at the center of their ideological world. The Damascus Document indicates that the sect understood itself as having originated through a moment of covenant renewal. Like Neh 9–10, but with a wider scope, the Damascus Document reviews the history of transgression, from the heavenly Watchers forward, and God’s just punishment in the form of destruction and exile (CD ii 16–iii 12). In the wake of these events, a righteous remnant emerged: Footnote 17 “And with those who remained from among them who held to the commandments of God, God established his covenant (בריתו) with Israel forever, to reveal to them concealed things (נסתרות) in which all Israel had erred.”
This covenantal relationship is not altogether new; it is the very same “covenant with Israel” from the past. But only the sect remains within the covenant, and the renewal of the covenant does involve innovation, in the form of the revelation of “concealed things.”
The progression in the Damascus Document follows, in outline, the sequence in Deut 29:9–28, where Moses, concluding the covenant renewal on the plains of Moab, envisions future transgression of the covenant, followed by exile. The chapter concludes with a declaration in Deut 29:28 that the “concealed things” belong to God and the “revealed things” to “us.” The chart below summarizes the common terminology between the chapter in Deuteronomy and the historical review in the Damascus Document.
The sect evidently took the declaration at the end of the chapter as an indication of a postexilic moment in which God’s “concealed things,” understood as new teachings concerning the religious laws, would be revealed. Footnote 18
As the sect’s origin lay, according to its own self-understanding, in a moment of covenant renewal, so the sect envisions an annual covenant renewal ceremony, which, according to a fragment from a version of the Damascus Document recovered from Qumran (4Q266 11 17), is to take place “in the third month,” presumably during the Feast of Weeks. The ceremony is described in detail in the Community Rule (1QS i 18–ii 19). Like the ceremony in Neh 9–10 and the historical review in the Damascus Document, the sect’s covenant renewal ceremony involves the recitation of Israel’s transgressions and God’s mercies. Footnote 19
The passage in the Community Rule also mirrors the Damascus Document in drawing heavily on Deut 29. To describe entrance into the covenant, it employs the construction עבר ב- (1QS i 18 בעוברם בברית “when they enter into the covenant”). As Martin Abegg notes, this construction otherwise occurs only in Deut 29:11. Footnote 20 More substantially, one of the curses in the covenant renewal ceremony rewrites Deut 29:17–20. The passage from Deuteronomy describes one who, having heard the oaths that seal the covenant, resolves nevertheless to worship other gods. Moses assures Israel that God’s anger will burn against such a person. The Community Rule, incorporating this passage into the imprecations that accompany the renewal of the covenant, has the priests and Levites curse one who enters into the covenant but has “idols of his heart” (גלולי לבו) and “sets his stumbling block of transgression before himself” (1QS ii 11–12). These characterizations are drawn from Ezek 14:2–8, where Ezekiel condemns those who seek the word of the Lord from the prophet but remain attached to foreign gods. The Community Rule’s merger of Deut 29:17–20 and Ezek 14:2–8 occurs elsewhere in the sectarian corpus and depends on a number of verbal overlaps between them. Footnote 21 For our purposes, most importantly, it confirms the centrality of revelation in the sect’s conception of covenant: the covenant renewal ceremony involves seeking the prophetic word.
The above survey of the role of covenant in Second Temple Jewish thought indicates the centrality therein of covenant renewal and, in turn, the perception of substantial continuity between the present covenanting community and the biblical past. The covenantal rites that were performed in the past can be undertaken again in the present; the prophetic word continues to speak, enabling new commitments to be incorporated into the covenantal framework; and the covenanting community can be identified with Israel of the past within a seamless penitential narrative. Footnote 22
Covenant in Rabbinic Literature
How, against this background, can we assess the role of covenant in rabbinic literature? The relative importance of a particular concept within a conceptual network is a difficult thing to measure. In a recent article on the question of the rabbis’ perspective on the land of Israel, Alon Goshen-Gottstein reflects on this methodological problem. It is altogether possible—it is in fact the case, he claims—that “despite the existence of tens or even hundreds of statements in the areas of halakah and haggadah concerning the land of Israel, the land of Israel does not occupy a central place in the economy of the sages’ thought.” Footnote 23 To evaluate the importance of a concept, one must consider not only the number of passages in which it appears. One must also consider, among other things, how the concept’s role in rabbinic literature compares to that in the Bible (or, we may add, in Second Temple literature); the concept’s relationship to other concepts within rabbinic thought; and to what degree rabbis do innovative work with the concept. Footnote 24
Goshen-Gottstein himself suggests in passing that covenant, like the land of Israel, occupies a more marginal place in rabbinic than in biblical thought. Footnote 25 A comprehensive evaluation of the significance and signification of covenant in rabbinic literature is not possible within the confines of an article. Footnote 26 Here, I offer only some framing reflections on the question of significance and one focused argument with respect to signification.
Evidence for the marginality of covenant as an organizing category for the rabbis might be adduced from cases in which Tannaitic literature incorporates origin stories for the rabbis that rework or typologically resemble some of the above biblical and Second Temple period sources, but stripped of the covenantal elements. Thus, many sources allude to the gathering in Neh 9–10, but in rabbinic memory it is “the great assembly” (כנסת הגדולה): a turning point in the canonization and transmission of Torah, and a font of liturgical innovation (or recovery), but with no link to covenant formation or renewal. Footnote 27 Again, a set of interrelated rabbinic texts associates the Yavneh assembly with the problem of forgetting. The rabbis’ work, and the goal of their students after them, was to order and thus enable the memorization and preservation of a jumble of legal traditions. Footnote 28 This account hovers close to the framework of forgetting and recovery that we find in the story of Josiah and in echoes thereof, but the rabbinic framework silences the elements of penitence and covenant renewal and instead focuses on scholastic practices of study and mnemonics.
Support for the impression of the marginality of covenant can come from appreciation for conceptual interrelationships that provisionally explain such marginality. Thus, if, as I have argued above, the importance of covenant in many biblical and Second Temple sources is connected with the notion of covenant renewal and, more fundamentally, with a sense of continuity with the biblical past, then one can perceive the marginality of covenant in rabbinic thought as bound up with a perception of discontinuity, of a break from the biblical past. From this perspective, the displacement of exegesis via rewriting (“rewritten Bible”) by exegesis via commentary (“midrash”) in the transition from Second Temple literature to rabbinic literature bears on the intellectual history of covenant. Rewritten Bible reflects a sense of continuity with the biblical past: it processes the Bible as a transparent text to be compositionally imitated. Rewritten Bible can be associated directly with covenant renewal, as in the case of Deuteronomy, an early instance of rewritten Bible that is set in a moment of covenant renewal (in Moab) and that was performed in the context of covenant renewal (under Josiah). Commentary, instead, processes the Bible as something exotic and opaque, and it is performed, paradigmatically, in a scholastic context, not in a ritual context. One might put this point more pithily: canon consciousness, which is one of the fulcrums between rewritten Bible and commentary, is closely tied to consciousness of the cessation of prophecy and thus, in turn, to the marginalizing of covenant as an organizing category. Footnote 29
To be sure, rabbis do invoke the covenant, as in the Bible, to justify the obligation to observe God’s law. Footnote 30 Various passages use the designation “member (lit., son) of the covenant” (בן ברית), apparently to indicate that the law in question applies only to an Israelite. Footnote 31 Circumcision is said to be the subject of no less than thirteen covenants; it is quintessentially “the covenant of Abraham our father,” and its role as a marker of Israelite identity receives extensive attention among the rabbis. Footnote 32 To the extent, then, that covenant figures less importantly for the rabbis than for the above works from the Bible and the Second Temple period, it is not a matter of the absence of relevant terms, but of the fact that it does not serve to organize rabbinic theology; it is no more than one category, or set of categories, among others.
Leaving aside these tentative suggestions concerning the significance of covenant in rabbinic thought, I turn to the main task of this section, to establish that one important role that covenant does play in rabbinic thought is substantially different from the one that it plays in the texts analyzed above: the rabbis use covenant to think through the notion of Israel as a corporate body composed of individual members. This interest becomes visible in a sustained interpretive approach to Deut 29 among some rabbis. Footnote 33 The following passage, from Mek. R. Ish. ba-ḥodesh 5 (Horovitz-Rabin ed., 219), occurs in a comment on the beginning of the Decalogue in Exod 20. Footnote 34
Rabbi says: It Footnote 35 comes to convey Israel’s praises, that when they all stood together before Mount Sinai to receive the Torah, they made their hearts as one (והשוו) Footnote 36 to receive the kingdom of God with joy. And moreover, they made themselves collateral, one against the other. And moreover (ולא עוד), Footnote 37 the Holiness, blessed be He, revealed himself to covenant with them concerning the concealed things (נסתרות), as it is written (Deut 29:28), “The concealed things are for the Lord our God….” They said to him: Concerning the revealed things we covenant with you, but we do not covenant with you concerning the concealed things, so that it should not be that one person sins in concealment and the congregation should be taken as collateral (מתמסכין). Footnote 38
According to this comment, attributed to Rabbi (R. Judah the Patriarch), Sinai was an occasion for national unity, not only in spirit but as a matter of law: the Israelites pledged themselves as collateral one to the other, allowing God to exact “payment” (punishment) from one Israelite on account of the sin of another. Deuteronomy 29:28 describes a limit to this pledge, perhaps articulated at Sinai, or perhaps in Moab: Israel accepted collective responsibility only for revealed or witnessed sins, not for sins committed in secret. Footnote 39
The thread of Rabbi’s teaching is picked up by the amora Resh Laqish in the Palestinian Talmud, in a comment on the story of Akhan at the beginning of the book of Joshua. Some background is necessary. According to Josh 7, Akhan took from the spoils of Jericho, which were under a ban, and as a result, some thirty-six Israelites fell in the next battle, against the city of Ai. The biblical author is singularly attentive to the implications of this story for the relationship between the individual and the collective. Footnote 40 The chapter begins by shifting back and forth between these two registers: “And the Israelites violated the ban, and Akhan … took from the ban, and the Lord was angry with the Israelites” (Josh 7:1). The opening words, “And the Israelites violated the ban,” assign the sin to Israel as a whole, with all of the authority of the narrator’s voice. Only in the continuation of the verse do we learn that the attribution of the sin to Israel is a constructive legal description, that in fact only a single Israelite took from the ban. When God alerts Joshua to the crime that led to the defeat at Ai, God, like the narrator, attributes the crime to Israel, with mainly plural verbs: “Israel has sinned. They have transgressed the covenant that I commanded them, they have taken from the ban….” (7:11).
The book of Joshua returns to the story of Akhan as a source of reflection on the relationship between the individual and the collective in the story of the altar that the tribes of Reuben, Gad, and Manasseh build in the trans-Jordan (Josh 22). The delegation led by Phineas warns these tribes that their actions will have consequences for all of Israel: “When Akhan son of Zerah violated the ban, was there not anger against all the congregation of Israel? He was not the only one who perished for that transgression” (22:20). Footnote 41
For the purpose of contrast with the rabbinic approach to Deut 29:28 and, as we will see below, to the story of Akhan, let us note how Josh 7 conceptualizes the logic of corporate responsibility. Unlike in Rabbi’s comment above, corporate responsibility in Josh 7 does not rest on a notion of Israelite consent in the formation of the covenant. God does make reference to violation of the covenant in Josh 7:11, but the covenant serves as background only to Akhan’s transgression itself; it does not explain why Akhan’s transgression should be imputed to Israel as a whole. The story makes sense of this imputation only implicitly, and in two ways. The first is through the logic of divine anger, referenced in Josh 7:1 and described, in accordance with the biblical convention, as burning. We are presumably supposed to understand that God’s anger spreads like a fire from the source—Akhan’s transgression—across the body politic. Footnote 42 The second and more distinctive way in which the story implicitly explains Israel’s corporate responsibility occurs in God’s directive to Joshua in 7:12–13: “I will not be with you anymore unless you destroy the ban from your midst (מקרבכם). Rise and purify the people. Order them: Purify yourselves for tomorrow, for thus says the Lord, God of Israel: A ban is in your midst (בקרבכם), O Israel. You will not be able to stand up to your enemies until you remove the ban from your midst (מקרבכם).” The repeated word קרב “midst” constructs Israel as a body with an interior, such that what is inside that interior implicates the entire body that encloses it.
In the rabbis’ treatment of the story of Akhan we find a different calibration of the relationship between the individual and the collective. Before turning to Resh Laqish’s comment in the Palestinian Talmud, I take note of a passage introduced as a Tannaitic teaching in b. Sanh. 43b. Footnote 43 “When the Holy One, blessed be He, said to Joshua, ‘Israel has sinned’ (חטא ישראל) (Josh 7:11), he said before him: Master of the world, who sinned? He said to him: Am I a denouncer? Go and cast lots.” The exegetical narrative here depends on reading the word ישראל in God’s pronouncement, חטא ישראל, not according to the biblical sense, where it indicates a collective (thus: “Israel has sinned”), but according to the rabbinic sense, where it indicates an individual Israelite (thus: “an Israelite has sinned”). As Adi Ophir and Ishay Rosen-Zvi have shown, a landmark transformation of the term גוי occurs between biblical and rabbinic literature, from signifying a nation to signifying an individual gentile. Footnote 44 The same transformation occurs in the term ישראל. Footnote 45 This transformation reflects the rabbis’ reconceptualization of the relationship between the individual and the collective.
We have already seen, in Rabbi’s comment on the Sinai event, that covenant plays an important role in this reconceptualization. Its importance becomes evident further in Resh Laqish’s comment on the Akhan story. The immediate literary context for Resh Laqish’s comment is an exegetical tradition, preserved in t. Soṭah 8, concerning the Israelites’ crossing of the Jordan River in Josh 3. The biblical text (Josh 3:16) tells that when the Jordan stopped flowing to allow the Israelites to cross, the waters flowing downstream toward the crossing point piled up to a great height. The Tosefta (t. Soṭ. 8:3) records a debate between two rabbis about the precise height of the pile. According to the continuation of the Tosefta, Joshua took advantage of this looming mass to confirm the people’s commitment to war.
They were yet on the other side of the Jordan. Joshua said to them: On this condition are you entering the land, that you dispossess its inhabitants, as it is written, “And you shall dispossess [all] the inhabitants of the land; you shall destroy…. But if you do not dispossess … then what I planned to do to them, I will do to you.” (Num 33:52, 55–56) And if you do not accept, the waters will come and flood you. Footnote 46
Resh Laqish, in the Palestinian Talmud (y. Soṭah 7:5 [22a]), shifts the topic of interest for Joshua. “Said R. Shimon b. Laqish: In the Jordan they accepted upon themselves the concealed things (הנסתרות). Said to them Joshua: If you do not accept upon yourselves the concealed things, the waters will come and flood you.” According to Resh Laqish’s revision, Joshua in the Jordan compelled Israel under pain of death to accept that which, according to R. Judah the Patriarch, they refused to accept at Sinai: communal responsibility for concealed transgressions. The Talmud continues with the proof for Resh Laqish’s view from the aforementioned case of Akhan. “Said R. Simon bar Zavda: And it is reasonable. Know that it is so, for behold, Akhan sinned and a majority of the Sanhedrin fell at Ai.” Footnote 47 Thus, if in the first stage of Israel’s covenantal history, at Sinai, the people accept responsibility only for sins committed openly, in the second stage, upon entering the land of Israel, they are made to accept responsibility also for concealed sins. But the continuation of the passage in the Yerushalmi indicates that this new state of affairs does not endure forever. “Said R. Levi: At Yavneh, the strap was unknotted. An echo came forth and said: You should have no truck with concealed things (נסתרות).” The strap is that which inflicts lashes, and for it to be unknotted is for it to be laid aside, so that there is no punishment for the crime in question. Footnote 48 R. Levi asserts on the basis of an “echo”—though the words in fact come from the book of Ben Sira—that, at Yavneh, God frees Israel from responsibility for covert sins. Footnote 49 R. Levi’s claim follows from that of Resh Laqish: if it is as a self-governing people on its land that Israel must assume responsibility for concealed transgressions, then such responsibility comes to an end with the destruction of the temple and the dawn of a new, exilic era at Yavneh.
I note briefly one other Tannaitic text that is unrelated to the above exegetical trajectory but that likewise invokes Deut 29, with other covenantal passages from the Bible, to undergird the notion of collective responsibility. Footnote 50 The Tosefta (t. Soṭah 7:2–6) describes in detail the rite whereby judges impose an oath on a litigant in a civil case who insists on his innocence despite the evidence against him. Footnote 51 According to this description, first the judges attempt to persuade him to concede guilt and only adjure him if he refuses. Footnote 52
1a. One who owes an oath to another party, they (i.e., the judges) say to him: Know that all the world shook on the day on which it was said, “You shall not swear falsely by the name of the Lord your God[, for the Lord will not clear one who swears falsely by His name]” (Exod 20:7).
1b. All transgressions in the Torah, it is written concerning them, “clearing” (Exod 34:7), but this one, it is written concerning it, “He will not clear” (ibid.; Exod 20:7). Footnote 53 All transgressions in the Torah, punishment is exacted from him, but this one, from him and from the whole world, and the transgression of the entire world is suspended on him, as it is said, “Curse and dishonesty,. . . for that, the earth is withered” (Hos 4:2–3). All transgressions in the Torah, punishment is exacted from him, but this one, from him and from his relatives, as it is said, “Don’t let your mouth bring disfavor on your flesh” (Eccl 5:5), and his flesh is none other than his relative, as it is said, “and not to ignore your own flesh” (Isa 58:7). All transgressions in the Torah, there is suspending for him for two or three generations, but this one is immediate, as it is said, “I have sent [the curse] forth, declares the Lord of Hosts” (Zech 5:4); immediately, “and it shall enter the house of the thief” (ibid.), this being the one who adjures falsely, knowing that [the one being adjured] does not have it, and thus he steals the minds of people; “and the house of one who swears falsely by my name” (ibid.), which is just as it means. All transgressions in the Torah, [the punishment is assessed] in his property, and this one, in his property and in his body, as it is said, “and it shall lodge [inside his house and shall utterly consume him, and his wood and his stones]” (ibid.). Come and see that things that the fire does not consume, a false oath utterly consumes. Footnote 54
2. If he says: I will not swear, they dismiss him immediately. If he says: I will swear, they say to each other, “turn aside from the tents of these wicked men [… lest you be swept up in all their sins]” (Num 16:26).
3. They adjure him with the oath that is said in the Torah, as it is said, “And I adjure you by the Lord, the God of the heavens and the God of the earth” (Gen 24:3).
4. They say to him: Know that it is not subject to a condition in your heart that we adjure you, but subject to a condition in our heart. And so we find that when Moses Footnote 55 adjured Israel on the Plains of Moab, he said to them: Know that it is not subject to a condition in your heart that I adjure you, but subject to a condition in my heart, as it is said, “And it is not with you alone [that I make this covenant, with its curses,] but both with him who is here [with us, standing today before the Lord our God, and him who is not here with us today]” (Deut 29:13–14). Footnote 56 I have only the commandments that Israel was commanded at Mount Sinai. Whence to include the reading of the scroll [of Esther]? Hence it says: “[The Jews] undertook and accepted, etc., irrevocably” (Esth 9:27).
The rite features two major sections, both of which begin with “know that”: the initial attempt at dissuading the litigant from taking the oath (section 1) and the qualifications that the court attaches to the oath (section 4). In between comes the crux itself: the litigant is either persuaded and declines to swear, or he persists and takes the oath (sections 2 and 3). Footnote 57
A covenantal framework encloses the entire rite. The judges begin by recalling the pronunciation of the Decalogue at Sinai (section 1) and end by referring to the covenant at the Plains of Moab and its aftermath around the festival of Purim (section 4). Footnote 58 The exegeses in section 1 are linked by the root נק"י, which occurs in Exod 20:7, 34:7, and Zech 5:3, and by the word “curse” (אלה) which occurs in Hos 4:2 and Zech 5:3. Footnote 59 This word evokes the curse that seals the covenantal oath, and it is introduced again in section 4 through the quotation of Deut 29:13. The covenantal framework drives the notion of collective responsibility that is the major (though not the exclusive) theme of section 1. This theme takes center stage again when the litigant insists on swearing, in section 2: the verse that the judges quote, Num 16:26, voices the concern that the punishment of the oath-taker will radiate outward and sweep away those around him. Footnote 60 Thus, as in the exegetical trajectory around Deut 29:28, so this passage makes use of covenant in order to give expression to the notion of collective responsibility. Footnote 61 It is notable that the corporate bodies explicitly identified in section 1 are the family and the world, not Israel. Nevertheless, Israel does occur in section 4.
Law and the Problem of Corporate Identity
The above rabbinic texts enlist covenant in a new role: to undergird the notion of collective responsibility for the transgression of an individual Israelite. In this section, I suggest that this development responds to the rise of halakah in a genuinely legal sense among the rabbis. Because the paradigmatic legal subject is the individual, the emergence of law problematizes collective Israel. Covenant enables the rabbis to make sense of collective Israel as a legal subject.
The insights of legal theory and attentiveness to the rabbis’ Roman context have enabled scholars to appreciate the degree to which rabbinic legalism represents a genuine innovation in relation to the rabbis’ Second Temple period predecessors. Moshe Halbertal writes of a shift from mitzvah in the Second Temple period to halakah among the rabbis. What characterizes the latter, in contrast with the former, is “a dense and thick field of instructions at high levels of resolution.” Footnote 62 Natalie Dohrmann offers “that rabbinic literature represents a break from Jewish precedent precisely in its legality and that this in turn may tell us something about Romanization.” Footnote 63 Dohrmann finds that the machinery, rhetoric, and ideology of Roman law inspired the production of a competing Jewish law, mutatis mutandis, among the rabbis. Prior to this point, in the Second Temple period, references to the law describe not so much injunctions associated with mechanisms of legislation and enforcement as “symbolic markers of Jewish identity.” Footnote 64
The sociologist Ferdinand Tönnies, in his masterwork, Community and Civil Society, links law, in the Roman and modern contexts alike, with the disentanglement of the individual from the community.
Rational, scientific, liberalised law did not become possible until individuals were in fact emancipated from all ties of family, country and home town, of belief and superstition, of inherited tradition, custom and duty…. This process can never be regarded as complete. To some extent it finds its ultimate and crowning expression in the imperial declaration which conferred Roman citizenship on all free men within the empire, granting them access to law-courts and freeing them from taxes. Footnote 65
While the formulation is extreme, Tönnies’s claim conveys a basic truth: law in the modern sense—which here, as for Tönnies, means likewise the Roman sense—reflexively constructs a subject who is an individual. It is the individual who is the paradigmatic bearer of rights and obligations. The community as a corporate body enters into the framework of the law only as the exception. Footnote 66
One example of this predilection of the law comes from the case of the עיר הנדחת, the city turned toward idolatry. The Bible (Deut 13:14–19) demands that, after careful investigation to ascertain the facts, the city should be subjected to the rule of ḥerem, i.e., the killing of all of the city’s inhabitants and the destruction of their property. As scholars have observed, the rule of the turned city merges the institutions of warfare and of justice. Footnote 67 The fact-finding is judicial, but the punishment belongs to the realm of warfare, especially in the rule’s refusal to distinguish between the guilty and the innocent: the collective punishment is grounded in the logic of friend and foe that defines war, rather than in the logic of innocence and guilt that defines justice and law. The main line of rabbinic interpretation advances the judicial or legal element at the expense of the warfare element and insists that inhabitants who did not worship foreign gods are not, in fact, subject to execution. The rabbis preserve the collective element of the law only with respect to property, and even then, only with the support of geography: though innocent inhabitants are spared, property of theirs that is situated inside the city, but not outside the city, is subject to the ḥerem.
The challenge of processing the corporate body in legal terms emerges especially clearly in the context of liturgy. The Tosefta (t. Roš. Haš. 2:18) reports a debate between Rabban Gamaliel and the sages. Rabban Gamaliel takes the view that the Amidah prayer by the emissary of the congregation exempts individuals from their prayer obligation. The Sages disagree and insist that each individual must “exempt himself,” i.e., must pray the Amidah individually. Rabban Gamaliel’s response—“if so, why do we have [the emissary of the congregation] descend before the ark?”—is to the point and supports the supposition, advanced by Gerald Blidstein among others, that the practice for which he advocates is original: the emissary of the congregation served genuinely as emissary, and he alone prayed the Amidah. Footnote 68 Nor, most likely, did he offer this prayer to “exempt” individuals from their obligation to pray (and in this respect, even Rabban Gamaliel’s position departs from the original practice); rather, the prayer was imagined as in the first place the collective work of the congregation, not as an obligation incumbent on each individual member of the congregation. Footnote 69 This latter notion, which finds fullest expression in the sages’ position, represents a secondary development: it came to be understood that each individual is obligated to pray the Amidah and ought ideally to carry out this obligation himself. Blidstein attributes this development to an alleged crisis of confidence about communal institutions following upon the destruction of the temple, and a consequent rise in the individual as the locus of praxis. I think it more likely that the cause lies with the rise of halakah as law, addressed paradigmatically to the individual.
A similar development occurs in the Shema liturgy. The history of this liturgy, which traces to the Second Temple period, is complex and uncertain, and a full account of its development lies far beyond the scope of this article, but the key transformations for our purposes were most likely as follows. In the Second Temple period, a daily morning liturgy at the temple involved the recitation of the Decalogue, followed by the three units of the Shema familiar from contemporary practice (Deut 6:4–9; 11:13–21; Num 15:37–41). This liturgy appears to have been colored by a notion of covenant renewal, evoking the Sinai covenant through the Decalogue, and beginning (Exod 20:2) and ending (Num 15:41) with the declaration of the Lord as Israel’s God and savior. Alongside this rite there is evidence for a practice of individual recitation of the first two paragraphs of the Shema (Deut 6:4–11; 11:13–21), either specifically in the evening, for apotropaic purposes, or perhaps in both the morning and the evening, for apotropaic purposes or as an act of Torah piety. The rabbis, or the circles whose practice they affirm, merge these practices, dropping the Decalogue from the temple rite and surrounding the Shema with blessings. In the Tannaitic period, the liturgy is still in flux: the evening Shema still does not, for some, include the third paragraph (m. Ber. 1:5), and there is a form of communal recitation of the morning Shema that recalls its (partial) origin in a public rite (m. Meg. 4:3). But the development occurs in a way that suppresses the dimension of covenant renewal. The sovereignty of God emerges as an alternative thematic center, and the distinctive communal recitation falls into desuetude. Footnote 70 Among the factors that motivated these developments, we may return to the considerations identified above: a hesitation about covenant renewal, and the emergence of a legalistic framework that processes obligation, including ritual obligation, as inhering first and foremost in the individual. Footnote 71
Conclusion
The emergence and dominance within the rabbinic movement of halakah—law in a recognizably modern sense and in the ancient Roman sense—meant also the rise of the individual within this legal framework and the problematization of collective bodies like the congregation, the city, and the people Israel. I have shown that, unlike their Second Temple predecessors, rabbinic interest in covenant—and, in particular, a key covenantal text, Deut 29—centers not on the relationship between the covenantal partners, God and Israel, and not on defining who counts and who does not count as Israel, but on the problem of Israel as a collective body, bound in mutual responsibility. I suggest that these two developments are connected: the rabbis found the concept of covenant a helpful framework to think through a notion of corporate Israel that had been problematized by the rise of halakah. This conclusion is ironically but only superficially close to E. P. Sanders’s notion of covenantal nomism. In his formulation, too, covenant responds to or qualifies a certain tendency within nomism, but in the view that I have defended, it supplies not grace, but community.
Open access
