A. From the outset of this Part it was observed that gaps and obscurities in the ancient Israelite legal traditum were conducive to the rise of exegetical solutions of a legal traditio. The observable fact that the biblical legal corpus is neither comprehensive in scope, nor altogether detailed with respect to the rules which do appear, meant that supplementation, amendment, and clarification were required if the legal traditum was to function in some way as a body of living jurisprudence. To be sure, the biblical legal corpora, like their ancient Near Eastern counterparts, are—formally speaking—literary achievements embodying cases exemplary of the wisdom and authority of the lawgiver (human in ancient Mesopotamia; divine in ancient Israel). 1 Moreover, as with the ancient Near Eastern legal materials, there is virtually no explicit evidence in ancient Israel that jurists used the rules preserved in its legal corpora as precedents or guides in the handling of specific cases. 2 Nevertheless, the concrete historical existence of these great legal collections, and their diverse inner- and cross-cultural connections in ancient Mesopotamia and Israel, attest to a shared legal Tradentenkreis of remarkable scope; 3 so that if only certain cases are singled out in the Covenant Code or the Laws of Hammurapi, for example, it can be safely assumed that an oral legal tradition supplemented the gaps and obscurities in various ways. Indeed, the preservation in ancient Israel of a complex and diverse exegetical traditio fully attests to an intense preoccupation with the legal traditum by legists and schoolmen, and suggests how its rules were handled in concrete circumstances. The incorporation of comments into the corpora in relation to specific formulations thus shows that such formulations were considered unclear by the legistic and scholarly tradition which studied and applied them.
Further perspective on this matter can be had by recalling in this context the legal proverb in claris non fit interpretatio, which may be rendered 'where the text is clear there is no room for interpretation'. 4 Indeed, the ambiguity latent in this very pithy phrase is sufficient to 'clarify' the problem raised by legal formulations which are variously
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Publication information: Book title: Biblical Interpretation in Ancient Israel. Contributors: Michael Fishbane - Author. Publisher: Clarendon Press. Place of publication: Oxford. Publication year: 1988. Page number: 231.
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