Review of R. Achenbach, R. Albertz, and J. Wöhrle, eds., The Foreigner and the Law

Journal of Hebrew Scriptures - Volume 13 (2013) - Review

Achenbach, Reinhard, Rainer Albertz, and Jakob Wöhrle, eds., The Foreigner and the Law: Perspectives from the Hebrew Bible and the Ancient Near East (BZABR, 16; Wiesbaden: Harrassowitz, 2011). Pp. viii, 180. Hardcover. €54.00 ISBN 978-3-447-06470-5.

This anthology concerns itself with the status of foreigners in law according to biblical and ancient Near Eastern texts. First presented in 2009 at the Biblical Law session of the SBL International Meeting in Rome, the essays deal with the difference between foreign workers, refugees coming to the land because of economic distress, and foreigners hoping to stay permanently. Also treated are foreigners' rights with respect to their welfare, and the possibilities of their social and cultic participation and integration. Biblical terms appearing frequently include gēr “resident alien”; tôshāb “alien,” “sojourner,” (occasionally identical with gēr); (ben) nokrî “foreigner”; zār “foreigner,” “unauthorized trespasser,” “outsider”; ʾezrāḥ “native”; and (Grk.) prosēlytos. The volume contains contributions by the three editors and Volker Haarmann, Thomas Naumann, Christophe Nihan, Saul Olyan, Susanne Paulus, and Bruce Wells. The contributions belong in the sphere biblical studies save one, Paulus' treatment of Kassite Babylonia. The book contains an editorial preface, bibliography following each essay, scripture (including early Jewish sources) and author indices at the book's end. The review treats the essays in the order of appearance.

Paulus opens with “Foreigners under Foreign Rulers: The Case of Kassite Babylonia (2nd Half of the 2nd Millennium BC).” A people of unknown origin often viewed as hostile, the Kassites came to Mesopotamia as foreigners that rose to power in the Second Millennium, ruling Babylonia for nearly 500 years. Identifying foreigners is a complex task that is ameliorated in cases when an ethnic appellation, foreign name, or another marker of identity is present.

A midpoint between foreignness and integration meets us in the éren-workers or work-troops, who serve in civil and military capacities. Some were Babylonians, many were foreigners, and all belonged to a lower stratum of society; nonetheless, opportunities existed for integration into more mainstream society. It was difficult to reverse a reputation for belonging to dangerous groups. Fugitives, messengers, and merchants were viewed as problematic in Babylonian society, the latter “always viewed suspiciously” (8). Because foreigners lacked legal status in the treaties, their treatment “depended on whether they still were subjects of a foreign king (merchants, messengers) or whether they tried to become subjects of another king (fugitives)” (10). In legal texts, foreigners enjoyed no separate status, a situation that could lead to being grouped with mentally disabled persons and those unfamiliar with societal mores.

Some texts show that foreignness was a social status. Outcasts—which included Babylonians fallen from grace—were treated as enemies. Their land and family could become foreign to them. Whereas Kassite status in the Late OB period varied from stranger to enemy, their status improved in later times, when they could become full citizens claiming traditional Babylonian roots.

Olyan discusses “Stigmatizing Associations: The Alien, Things Alien, and Practices Associated with Aliens in Biblical Classification Schemas.” He examines the rhetoric-laden portrayals of foreigners in legal texts and considers eight “classificatory operations.” Notable is the debate regarding whether an alien's presence can ritually pollute. Against Klawans and C. E. Hayes, O. believes it does (e.g. Neh 13:4–9; Isa 52:1; cf. Num 5:13–14; discussion on pp. 21–22 and n. 16), but this is a later development of the earlier notion that alien lands defile. O. advocates the judicious use of both diachronic and source-critical analysis of biblical texts (25). The latter method enjoys the agreement of “many if not most” scholars in the existence of sources P and D. Olyan's general affirmation of diachrony and attenuated source criticism sets the methodological stage for the studies that follow, seven of eight penned by Europeans.

Achenbach examines the legal and sacral distinctions regarding foreigners in the Pentateuch, treating four key terms and the specific eras in which they are used: gēr, nokrî, tôshāb, and zār. The gēr is defined as a “person who, in order to protect his life and family, looks for a new home. Gērîm may have their origin among related or non-related ethnic groups” (29). The reasons for seeking protection outside of one's group are many. The explanation for the inhabitants of Judah adding the gēr to the traditional list of personae miserae (aliens, widows, orphans and the poor; Exod 22:20a, 21; 23: 1–9) is linked with the dramatic societal changes that occurred in Judah following the Assyrian campaign of 701 b.c.e., which greatly increased the number of poor and landless persons. Figure II (31) displays the development of early CC (Covenant Code: Exod 20:23–23:33) to later DC (Deuteronomic Code: Deut 12–26), and then still later HC (Holiness Code: Lev 17–26) of the law(s) protecting the gēr. Though scholars may scruple over the degree of diachronic specificity and complexity of the outlines (figs. III–V), A.'s literary-historical schema has been set forth in numerous previous studies treating numerous topics and themes, and the footnotes in this piece are fairly comprehensive.

Albertz's essay, “From Aliens to Proselytes: Non-Priestly and Priestly Legislation Concerning Strangers” differentiates between non-priestly and Priestly laws concerning non-Israelites. The study opens with a potent section “Unsolved Problems,” in which A. summarizes the views of A. Bertholet (1896; shift in the meaning of Heb. gēr to Grk. prosēlytos in LXX legal texts) and Chr. Bultmann (1992: two distinct meanings of gēr: Israelite members of the lower class, as in non-priestly DC; strangers outside the postexilic Judean community desiring integration, as in Priestly legislation).

A. assumes non-priestly authorship of CC (8th–7th centuries) and DC (late 7th–6th centuries), Priestly authorship of HC and “later additions similar to HC in Numbers.” In CC and DC the gērîm only rise to an object of social protection and charity, while in the Priestly HC they “become subjects of ritual and religious obligations valid for all Israelites.”

The occasion for legislating protection of the gēr in DC was their deteriorating plight during the late Judean monarchy. Day-laborer (śākîr; Deut 24:14) status afforded minimal security, landing them in a worse situation than during the time of CC. DC distinguishes between the gēr and the non-permanent (ben) nokrî. The latter fares worse because (a) they are excluded from the solidarity of Israelite society, (b) interest could be charged to them (23:21), and (c) claims could be exacted of them even in the seventh year (15:3).

After brief treatments of the gēr in CC and DC, there follow 6 pages treating the topic in HC (the product of a Holiness School; HS) and 4 in “late Priestly layers.” HS was responsible for the HC and the composition from Genesis to Leviticus. Both assemblages come from the same priestly milieu and similar time, which A. calls “P2” (56–57). The “P4” layer had a special interest in the gēr, imposing additional regulations, some of which contrast with HC. The “P4” legislator widened the circle of possible aliens, though not wide enough to include the nokrî. Yahwists from the Diaspora and foreigners such as Persian officials could offer sacrifices in Jerusalem provided they followed protocol (65).

“P5,” the latest redactor, concerns himself more with the correct occupation and distribution of land than the gēr. The “P5” legislator of Num 19 presupposes the “P4” innovation that gērîm be circumcised (vv. 9, 13, 20) in order to prevent defilement of the temple (vv. 13, 20). With recourse to HC's notion that the deity dwells within the community, “P5” forbids all inhabitants from shedding innocent blood (Num 35:33–34). All share the same duties—and also the same rights. “P5” goes beyond HC in integrating strangers “socially, legally and religiously” (66). The gulf between this and the Ezra-Nehemiah policy of exclusivity is deep and wide. On balance, “social care for the aliens who lived within Israel became a feature of Israel's religious identity” (55).

In his contribution, “The Integrative Function of the Law of Circumcision,” Wöhrle challenges the traditional notion of the function of circumcision. In conversation with A. Ruwe,[1] he considers whether it as an intercultural practice. Does it function as an “interethnic symbol of peace” (Ruwe, cited 71, n. 3)? (W. later concludes it does not, p. 84). W. structures his essay in three main sections, in which he overviews circumcision in Israel and its environment, describes the formation of P's account of God's covenant with Abraham in Gen 17, and defines the intention of the law of circumcision.

(1) Whereas in preexilic times circumcision was a rite shared by Israel and its neighbors, Israel alone practices the rite in Hellenistic times.

(2) Whereas circumcision has been presumed a secondary addition to Gen 17:9–14, the alleged addition does not in fact make the establishment of the covenant conditional. Neither does uncircumcision “lead to the termination of the covenant as a whole, but only to the exclusion of the uncircumcised from this covenant” (76). It does not confirm the covenant as does the rainbow in Gen 9. The fact that the slaves in Abraham's household were circumcised (17:12) suggests their integration into the covenant; therefore, circumcision does not apply to Abraham and his progeny alone. Nonetheless, W. concludes circumcision to be a secondary addition (vv. 9–14) to the original layer in Gen 17 (vv. 1–8, 15–22).

(3) The intention of the law depends upon the group to whom it applies. Recent scholarship proposes a wider application, which would include Ishmael, whom Gen 17 portrays as an exemplary alien (see 79 n. 23; 80). The primary layer of Gen 17 does not support this view, but only the late pentateuchal postexilic redactional layer of vv. 9–14, which broadens the scope of the covenant. This redactional layer was added at a time in the Persian period when Israel's neighbors had stopped practicing circumcision. “The circumcision of Ishmael … shows that the secondary passages of Gen 17 … target the integration of alien people into the covenant” (80). Included in this same late layer is the provision in the Passover text of Exod 12:43–49, namely, that purchased slaves and gērîm who submit to circumcision may participate. Circumcision, therefore, is not only a ritual that disassociates from foreigners but also a practice that integrates members of the household. W. emphasizes that these provisions do not add up to proselytizing, which occurs later.

Naumann looks into “The Common Basis of the Covenant and the Distinction between Isaac and Ishmael in Gen 17.” P views Yhwh in universal dimensions “as the god of creation and of the world” (89). The Priestly theological agenda is exemplified through its covenants and theory of revelation (Exod 6:2–3). P emphasizes the revelation to the generations of the patriarchs and later to Moses and the Israelites. Both Gen 9 and 17 “contain assertions of permanent salvation for the entire world and for all of Abraham's progeny, and each covenant is associated with a corresponding sign” (89). Israel's participation in these covenants does not take place apart from, “but only within a circle that includes other nations …. With the category of covenant, the priestly source appears to want to capture worldwide events” (89–90). In revelations specific to Israel such as Sinai, P does not use the language of covenant. P operates according to a three-tiered revelatory theology in which not only the world (Gen 9) and the nation of Israel (Exod 6) function as entities, but also an “Abrahamic realm of nations” (Gen 17; 25; 36) figures as “an independent entity dwelling in-between” (90).

The promises of countless descendants are “substantiated in the genealogy of the Ishmaelite nations … The Abrahamic covenant forms the mutual theological basis for both lines of progeny” (106). The two sons are not treated equally, however. It may be that the interpretation of Gen 17 in the book of Jubilees (ch. 20) correctly understood the Priestly conception of the Abrahamic covenant in Gen 17.

Nihan resumes the discussion of legal material with “Resident Aliens and Natives in the Holiness Legislation.” H (holiness legislation in Lev 17–26 that does not presuppose an originally separate collection of laws) presupposes material in both DC and in the framing chapters, Deut 1–11; 27–34. (N. does not think that Deuteronomic material is necessarily non-priestly.) It presupposes not only Pg but also Ps, which dates to the Persian era. H belongs to the 5th century and responds to the challenges of increasing ethnic diversity. A comprehensive understanding of H requires familiarity with its relationship to earlier Torah laws.

The gēr appears often in Deuteronomy and H. Occurrences of the term in other Priestly legislation have been explained as interpolations of a holiness redactor that supplement earlier Priestly laws with recourse to H, or, as late Priestly insertions (also with recourse to H). H's preoccupation with the place of the gēr is thus presumed: “Only in H and H-related passages do we find an attempt to define a comprehensive set of laws for the gēr” (112).

Prior to its expansion by H, P did not contain a law regarding non-Israelites residing in the land of Israel, “and this development is entirely connected with the introduction of H” (112; original emphasis). Most scholars see this as a late development in the formation of the Pentateuch, at a stage when earlier legislation underwent significant revision.

N. treats the identity and legal status of the gēr in H (113–24; the relationship between gēr and tôshāb on 118).

The following points are made in the treatment of the gēr's sacral status in HC (124–29), in which N. sets forth the distinction between gērîm and Israelites. The gēr may slaughter domestic animals away from the sanctuary but only ritually sacrifice at the sanctuary (Lev 17:8–9). H, however, abolishes profane slaughter by Israelites à la Deut 12. That the gēr may continue to do so reveals the sacral distinction between Israelites and gērîm. The latter is thus “only indirectly included in that covenantal and sacral bond” (125). A fortiori, “the main implication of the restricted inclusion of the resident alien within the sacral community is that the גר is consistently omitted from the exhortation to achieve holiness” (cf. Lev 19:2; 20:7–8, 22–26; and 22:31–33). N.'s continuation of earlier work discerning distinctions between resident aliens and Israelites[2] is incisive and does not overstretch the evidence produced by the dates he proposes and methods he employs, respectively. The distinction is rather sophisticated, and the question presents itself as to whether a program emphasizing the achievement of holiness through observance of the law, which proposes distinction between Israelite and resident aliens, is designed as a subtle counter or balancing mechanism to another perspective set forth in Lev 22:32b–33 (cf. 11:44–45). Here Yhwh sovereignly sanctifies the Israel that came out of Egypt and calls them to show forth that holiness.[3] This latter proposal tilts toward quasi-legal elements in the unilateral covenant with Abraham in Gen 12.

The gēr “in holiness legislation” is not necessarily poor and needy. He may head a household (Exod 12:48–49) and even own Israelite slaves (Lev 25:47–54), but land ownership is prohibited (Lev 25).

In “The Quasi-Alien in Leviticus 25,” Wells suspects the beneficiary of the legislation in vv. 35–37 may not be the gēr and tôshāb. Often in conversation with J. Milgrom,[4] W. offers a detailed socio-juridical analysis from which he concludes the provision of vv. 35–37 is an “antichretic pledge,” in which one may exploit another's labor. The provision promises less help to impoverished debtors than previously thought (136). W. describes the impoverished householder's sale of a plot of land as “sale under duress” (vv. 25–34). The sale price is based on the number of years leading up to the Jubilee, more precisely, the number of expected crops within that time. The premise that the land-seller is acting of his own free will is a “legal fiction” (140), known already in the laws of Emar. The reality on the ground is debt-slavery of a kind that even a paid debt does not necessarily extricate one from obligation to the creditor. The lack of a provision for redemption of the property in the debtor-friendly law of vv. 39–40, moreover, is glaringly absent.

The concept “quasi-alien” is known in legal texts from the Ancient Near East in which the “antichretic pledge” changes the identity of impoverished full citizen into a resident alien, whose status may dip to that of chattel. With this eventuality in mind, creditors stand to gain from provisions that tacitly promise future redemption from a current financial crisis. “By reducing the needy Israelite to the status of a quasi-alien, the text allows for holding an Israelite who has not yet defaulted on a loan right at the edge of slavery. This is the very situation in which antichretic pledges found themselves” (151). W. rejects the traditional interpretation of the provision of Lev 25:35–37 as a general ban on interest-bearing loans in pentateuchal law. Alas, the munificence that seems to suffuse Lev 25 is a façade.

Haarmann hopes to contribute to conversations about the construction of a biblical “particularlism” in the essay “‘Their Burnt Offerings and Their Sacrifices Will Be Accepted on My Altar’ (Isa 56:7): Gentile Yhwh-Worshipers and Their Participation in the Cult of Israel.” Gentile Yhwh-worshippers (JHWH-Verehrer der Völker)[5] are not to be confused with the gēr because the former do not integrate into Israel. H. focuses on Gentile Yhwh-worshippers that do not “attach themselves (Niphal lwh) to the people of Israel” as in Isa 56:6. Ezekiel 44:6–9—as well as later Second Temple sources—dispute with Isa 56:1–8 regarding the question of Gentile access to the Temple. Contrary to earlier readings, H. sees no proselytism in these two postexilic texts. By Hellenistic times, Gentiles had been clearly restricted from entering the temple—though not from every aspect of Yhwh worship, e.g., offering sacrifices in places other than the Jerusalem temple. Several postexilic narratives describe Gentile Yhwh-worshippers (Exod 18:1–12; Josh 2; 2 Kgs 5; Jon 1).These and other texts make known the category of Gentile Yhwh-worshippers that worship Yhwh without fully integrating into the Israelite community. H. maintains they are the precursors to גרי תושב or “righteous Gentiles.”

The stated theme of the volume is well covered with valuable continuity and tolerable repetitiveness. Some grammatical errors and inconsistency in transliteration (e.g., gêr and gēr, gērîm and gerîm) were noted; “בני צדוק” was inadvertently left untranslated in the Hebrew text on p. 163.[6] The comprehensive tracking of terms and themes across major law codes of the Tanakh requires both rigor and imagination, a combination abundantly present in this anthology. A study exploring comparable terms and/or themes in Greek laws and their impact on Israelite law would enrich the discussion on a number of fronts.[7]

Questions regarding the reliability of diachronic methods and reconstructions used notwithstanding, a growing number of scholars from both sides of the Atlantic agree that the interdependence and “conversation” between the major law codes requires the continuation of those methods. Establishing their relative chronology has become a sina qua non of biblical law research. In addition to the volume's treatment of the varying status and treatment of foreigners, several essays tackle sensitive issues pertaining to the universalism of Yahwism and reconsiderations of the inclusivity/exclusivity of its covenants. The lack of editorial synthesis is regrettable, as the socio-religious weight of the issues raised and discussions extended in this book is considerable. Are the biblical laws that promote social (and in some instances religious) integration with non-Israelites primarily a postexilic phenomenon? Do texts that promote Israelite exclusivity exhibit a central or peripheral belief? Do prophetic-legal texts such as Isa 56:1–8 (alien access to the temple) and Ezek 44:6–15 (against alien access to the temple) hint at a major debate between postexilic pentateuchal lawmakers? Do late Priestly redactions of the Pentateuch dating to the early Hellenistic period adumbrate a universal Yahwism not far removed from that espoused in “authoritative traditions” from the early Pseudepigrapha (e.g., Jub. 20's take on the Ishmael of Gen 17). The conceptual and diachronic distance between “Pentateuchal studies” on the one hand, and the corpus propheticum, early Pseudepigrapha and Apocrypha, and Dead Sea Scrolls on the other, seems destined to continue growing smaller.

Mark A. Christian, Belmont University

[1] A. Ruwe, “Beschneidung als interkultureller Brauch und Friedenszeichen Israels: Religionsgeschichtliche Überlegungen zu Genesis 17, Genesis 34, Exodus 4 und Josua 5,” ThZ 64 (2008), 309–42. reference

[2] E.g., “Ethnicity and Identity in Isaiah 56–66,” in O. Lipschits, G. N. Knoppers, and M. Oeming (eds.) Judah and the Judeans in the Achaemenid Period: Negotiating Identity in an International Context (Winona Lake, Eisenbrauns, 2011), 67–104. reference

[3] Cf. K. Grünwaldt, “Amt und Gemeinde im Heiligkeitsgesetz,” in K. Kiesow and T. Meurer (eds.) Textarbeit: Studien zu Texten und ihrer Rezeption aus dem Alten Testament und der Umwelt Israels (AOAT, 294; Münster: Ugarit-Verlag 2003), 227–44; M. A. Christian, “Middle-Tier Levites and the Plenary Reception of Revelation,” in M. Leuchter and J. Hutton (eds.) Levites and Priests in Biblical History and Tradition (Ancient Israel and Its Literature, 9; Atlanta: SBL, 2011), 171–95. reference

[4] J. Milgrom, Leviticus 23–27: A New Translation with Commentary (AB, 3B; New York: Doubleday, 2000). reference

[5]0 See Haarmann's published dissertation, JHWH-Verehrer der Völker: die Hinwendung von Nichtisraeliten zum Gott Israels in alttestamentlichen Überlieferungen; (AThANT, 91; Zürich: TVZ, 2008). reference

[6] The text from p. 163 is replicated here: “Only the ‘levitical priests” (הכהנים הלוים בני צדוק) shall come near to Yhwh to minister to Him in His sanctuary (Ezek 44:15).” reference

[7] A. Hagedorn has argued for the presence of (a class of?) Greek migrant workers living in Palestine in “‘Who Would Invite a Stranger from Abroad?’ The Presence of Greeks in Palestine in Old Testament Times,” in: R. Gordon and J. C. de Moor (eds.), The Old Testament in its World (OTS, 52; Leiden: Brill 2005), 68–93; see more generally S. Alkier and M. Witte (eds.), Die Griechen und das antike Israel: Interdisziplinäre Studien zur Religions- und Kulturgeschichte des Heiligen Landes (OBO, 201; Fribourg: Academic; Göttingen: Vandenhoeck & Ruprecht, 2004). reference