1. Students of biblical law have long noted that neither any one collection of laws, nor all of them together (the mišpāṭîm ordinances of Exod. 21: 1-23: 19; the so-called Holiness Code of Lev. 17-26; and the laws of Deut. 12-26), sufficiently cover the numerous areas required for an operative and positive law code. 1 Thus, not only are there substantive lacunae in such vital areas as marriage, death, and contracts, but even in areas where legal interest is articulated, such as the area in private law concerned with damage to property, it is notable that our received biblical materials ignore direct damage to another's property and focus exclusively on damage indirectly caused—like a pregnant woman accidentally struck while others were brawling (Exod. 21: 22), or a field ravaged by roaming cattle (Exod. 22: 4). 2 While such lacunae are apparently surprising from the modern point of view, it is vital to bear in mind, as D. Daube has argued, that the 'conspicuous absence of simple, direct damage is not accidental, nor should it be explained away by postulating rules which have got lost. The answer is that many ancient codes regulate only matters as to which the law is dubious or in need of reform or both.' 3
But that is not all. Anyone approaching the biblical legal materials with an interest in detailed statements concerning legal process or the constitution of the courts will find great gaps and contradictory comments; indeed, sanctions necessary for legal enforcement are often vague and non-juridical. Thus, the apparently precise formula used with regard to capital punishment,'he will be killed [by court order]', often leaves the manner of death unspecified, 4 and, to further complicate matters, may actually be construed in an optional sense, i.e.