Deuteronomy’s Herem Law: Protecting Israel at the Cost of its Humanity

Wars In and Out of the Land of Canaan

Deuteronomy’s law collection (Deut 12:1–26:15) contains the only legislation in the Torah that regulates how Israel was to conduct war.^[1]

Wars Outside of the Land of Canaan

Wars initiated by Israel in distant lands^[2] to expand its rule and territory,^[3] were to begin with a call to surrender:

^{דברים כ:י} כִּי תִקְרַב אֶל עִיר לְהִלָּחֵם עָלֶיהָ וְקָרָאתָ אֵלֶיהָ לְשָׁלוֹם.

^{Deut 20:10} When you approach a city to attack it, you shall offer it terms of peace.

If this overture is turned down and war ensues, Israel is to fight and kill all the men of fighting age:

^{דברים כ:יב} וְאִם לֹא תַשְׁלִים עִמָּךְ וְעָשְׂתָה עִמְּךָ מִלְחָמָה וְצַרְתָּ עָלֶיהָּ. ^כ:יג וּנְתָנָהּ יְ־הוָה אֱלֹהֶיךָ בְּיָדֶךָ וְהִכִּיתָ אֶת כָּל זְכוּרָהּ לְפִי חָרֶב.

^{Deut 20:12} If it does not surrender to you, but would join battle with you, you shall lay siege to it; ^20:13 and when YHWH your God delivers it into your hand, you shall put all its males to the sword.

The remainder of the population, i.e., the civilian non-combatants, were to be spared; they would become part of the spoils Israel took for itself:

^{דברים כ:יד} רַק הַנָּשִׁים וְהַטַּף וְהַבְּהֵמָה וְכֹל אֲשֶׁר יִהְיֶה בָעִיר כָּל שְׁלָלָהּ תָּבֹז לָךְ....

^{Deut 20:14} You may, however, take as your booty the women, the children, the livestock, and everything in the city—all its spoil.

Wars in the Land of Canaan

Wars in Canaan were of an altogether different stripe. They were to be waged against the entire population of Canaan, not only its armies, until all were exterminated in a ḥerem, without distinction of gender or age, and with no option to surrender:

‏^{דברים כ:טז} רַק מֵעָרֵי הָעַמִּים הָאֵלֶּה אֲשֶׁר יְ־הוָה אֱלֹהֶיךָ נֹתֵן לְךָ נַחֲלָה לֹא תְחַיֶּה כָּל נְשָׁמָה. ^כ:יז כִּי הַחֲרֵם תַּחֲרִימֵם הַחִתִּי וְהָאֱמֹרִי הַכְּנַעֲנִי וְהַפְּרִזִּי הַחִוִּי וְהַיְבוּסִי כַּאֲשֶׁר צִוְּךָ יְ־הוָה אֱלֹהֶיךָ.

^{Deut 20:16} In the towns of the latter peoples, however, which YHWH your God is giving to you as a heritage, you shall not let a soul remain alive. ^20:17 No, you must proscribe them—the Hittites and the Amorites, the Canaanites and the Perizzites, the Hivites and the Jebusites—as YHWH your God has commanded you.

The conquest of land that appears in Joshua 1–12 strictly follows the Deuteronomic law.

Implementing the Ḥerem Law during the Conquest of Canaan

The Deuteronomistic author/editor of Joshua envisions the Joshua generation as an ideal group, punctilious in fulfilling the ḥerem. He states this explicitly multiple times, in the conquests of the cities of Jericho (Josh 6:21)^[4] and Ai (8:26),^[5] in the conquests of the southern cities (Josh 10:28–39)^[6] and finally, at the end of the northern campaign, which ends with a general summary:

‏^{יהושׁע יא:יב} וְאֶת כָּל עָרֵי הַמְּלָכִים הָאֵלֶּה וְאֶת כָּל מַלְכֵיהֶם לָכַד יְהוֹשֻׁעַ וַיַּכֵּם לְפִי חֶרֶב הֶחֱרִים אוֹתָם כַּאֲשֶׁר צִוָּה מֹשֶׁה עֶבֶד יְ־הוָה.

^{Josh 11:12} Joshua conquered all those royal cities^[7] and their kings. He put them to the sword; he proscribed them in accordance to the charge of Moses, the servant of YHWH.

The Deuteronomistic conception of ḥerem as the total annihilation of the land’s inhabitants differs from the word’s use elsewhere in the Bible.^[8]

The Meaning of ח.ר.ם and Its Use Outside Deuteronomy

The basic meaning of the root ח.ר.ם in Hebrew and cognate Semitic languages is “separate, set aside, remove something from profane use.”^[9] Items that are declared ḥerem are dedicated to the deity and enter the category of “holy.”^[10] Such an act of sanctification is clearest in the declaration by the individual Israelite of personal items dedicated to YHWH:

^{ויקרא כז:כח} אַךְ כָּל חֵרֶם אֲשֶׁר יַחֲרִם אִישׁ לַי־הוָה מִכָּל אֲשֶׁר לוֹ מֵאָדָם וּבְהֵמָה וּמִשְּׂדֵה אֲחֻזָּתוֹ לֹא יִמָּכֵר וְלֹא יִגָּאֵל כָּל חֵרֶם קֹדֶשׁ קָדָשִׁים הוּא לַי־הוָה.

^{Lev 27:28} But of all that a man owns, be it man or beast or land of his holding, nothing that he proscribed for YHWH may be sold or redeemed; every proscribed thing is totally consecrated to YHWH.^[11]

This sanctification also emerges from the rule that all items declared ḥerem fall in the category of priestly perquisites:

^{במדבר יח:יד} כָּל חֵרֶם בְּיִשְׂרָאֵל לְךָ יִהְיֶה.

^{Num 18:14} Everything that has been proscribed in Israel shall be yours.

While the Priestly texts concentrate on voluntary gifts to the sacred precinct, other biblical texts speak of ḥerem in a martial context, but still with the concept of gift/donation.

Discretionary War Ḥerem

The root ח.ר.מ as applied to war is semantically distant from the cultic usage.

The conceptual link between ḥerem as setting aside for God and ḥerem as total destruction of a city can be seen in the short report of the engagement between Israel and the Canaanite king of Arad (Num 21:1–3).

Ḥerem at Hormah

The story begins with the Canaanite king’s attack on Israel, in which he takes a number of Israelites captive. Israel responds militarily and makes a theurgic ḥerem vow, i.e., an act designed to ensure divine aid:

‏^{במדבר כא:ב} וַיִּדַּר יִשְׂרָאֵל נֶדֶר לַי־הוָה וַיֹּאמַר אִם נָתֹן תִּתֵּן אֶת הָעָם הַזֶּה בְּיָדִי וְהַחֲרַמְתִּי אֶת עָרֵיהֶם.

^{Num 21:2} Then Israel made a vow to YHWH and said: “If You deliver the people into our hand, we will proscribe their towns.”^[12]

In the ensuing battle, Israel overcame the Canaanites of Arad, and followed through with their vow of forfeiting the spoils of war, and renamed the now destroyed site Hormah, “destruction,” a memorial to their vow.^[13]

Ḥerem of Amalek

Commanded ḥerem is not unique to Deuteronomy. It appears in the pre-Deuteronomic story^[14] in which the prophet Samuel conveys to King Saul YHWH’s command to exterminate the Amalekites:

‏^{שׁמואל א טו:ב} כֹּה אָמַר יְ־הוָה צְבָאוֹת פָּקַדְתִּי אֵת אֲשֶׁר עָשָׂה עֲמָלֵק לְיִשְׂרָאֵל אֲשֶׁר שָׂם לוֹ בַּדֶּרֶךְ בַּעֲלֹתוֹ מִמִּצְרָיִם. ^טו:ג עַתָּה לֵךְ וְהִכִּיתָה אֶת עֲמָלֵק וְהַחֲרַמְתֶּם אֶת כָּל אֲשֶׁר לוֹ וְלֹא תַחְמֹל עָלָיו וְהֵמַתָּה מֵאִישׁ עַד אִשָּׁה מֵעֹלֵל וְעַד יוֹנֵק מִשּׁוֹר וְעַד שֶׂה מִגָּמָל וְעַד חֲמוֹר.

^{1 Sam 15:2} Thus said YHWH of Hosts: I am exacting penalty for what Amalek did to Israel, for the assault he made upon them on the road, on their way up from Egypt. ^15:3 Now go, attack Amalek, and proscribe all that belongs to them. Spare no one, but kill alike men and women, infants and sucklings, oxen and sheep, camels and asses.

Saul then attacks the Amalekite city and slaughters all the people except the king, whom he takes as a captive—for which he was castigated by the prophet—clear evidence of the extreme nature of the ḥerem framed as a reprisal for Amalek’s attack on Israel after the exodus from Egypt (cf. Exod 17:8–16). This limited act of blood revenge, applied to Amalek only, is altogether different in scope from slaughtering all the inhabitants of Canaan, with whom Israel has no specific grievances to avenge.

Ben-Hadad: Doomed to Ḥerem by YHWH?

One additional text, deriving from northern prophetic tradition, hints that ḥerem was a military option in the 9th century during Israel’s wars with the Arameans. In one instance, Ben-hadad, king of Damascus, is referred to as אִישׁ חֶרְמִי, best rendered as “the man whom I have doomed to ḥerem” (1 Kgs 20:42).^[15] Though nowhere in the accounts of the Aramean wars is there any reference to the use of ḥerem, this epithet suggests that in it may have been employed in defense of country against the Arameans.

Brutality in Warfare in the Ancient Near East

Extreme behavior on the part of combatants in the humbling of their enemies and taking over their lands was not unique to ancient Israel; it was the known practice of many ancient Near Eastern rulers.^[16]

Arameans

The Bible claims that King Hazael of Aram-Damascus treated Israelite cities savagely during his years-long campaign to dominate the region. The accusation is placed in the mouth of the prophet Elisha, when he designated Hazael as the future king of Aram-Damascus:

‏^{מלכים ב ח:יא} ...וַיֵּבְךְּ אִישׁ הָאֱלֹהִים. ^ח:יב וַיֹּאמֶר חֲזָאֵל מַדּוּעַ אֲדֹנִי בֹכֶה וַיֹּאמֶר כִּי יָדַעְתִּי אֵת אֲשֶׁר תַּעֲשֶׂה לִבְנֵי יִשְׂרָאֵל רָעָה מִבְצְרֵיהֶם תְּשַׁלַּח בָּאֵשׁ וּבַחֻרֵיהֶם בַּחֶרֶב תַּהֲרֹג וְעֹלְלֵיהֶם תְּרַטֵּשׁ וְהָרֹתֵיהֶם תְּבַקֵּעַ.

^{2 Kgs 8:11} …The man of God wept. ^8:12 “Why does my lord weep?” asked Hazael. “Because I know,” he replied, “what harm you will do to the Israelite people: you will set their fortresses on fire, put their young men to the sword, dash their little ones in pieces, and rip open their pregnant women.”

But whether Elisha's grim prophecy came to fruition cannot be checked as Hazael’s depiction of how he treated conquered peoples is not extant.^[17]

Moabites

Another of Israel’s neighbors in Transjordan, the Moabites, are known to have practiced ḥerem. In a stela erected by Mesha, king of Moab, in c. 830 BCE, to commemorate a lifetime of achievement, Mesha boasted of liberating Moab from Israel’s cruel rule that had begun a generation earlier under Omri of Israel. He told how he raided the cities of the tribe of Gad, killing everyone as he went, gathering up spoil. With reference to the city of Nebo, where there was a cult site to YHWH, Mesha claimed:

I proceeded by night and I fought with it from the crack of dawn to midday and I took it and I slew all of them, 7,000 men and boys and women and girls and maidens because I had put it under ḥerem (in Moabite: החרמתה) to Ashtar-Chemosh.^[18]

Assyrians

The Assyrians were, perhaps, the most infamous of the peoples who treated their enemies savagely; at least, that is the impression they wished to convey in their inscriptions and on the wall reliefs of their palaces that are replete with descriptions of mutilating the defeated, many of the slain losing their heads in the count of enemy dead—all in order to put the fear of the god Ashur and the Assyrian king into the hearts of all onlookers.^[19]

An example from the annals of Ashurbanipal describing his actions in Egypt (in the mid- 660s B.C.E.) is typical:

The people of Sais, Piṭiṭi (and) Ṣi’nu and the rest of the cities that had joined them (and) plotted evil, young and old, they struck down with the sword. No one among them was spared.^[20]

Yet the Assyrians do not claim that their god Ashur requires them to slaughter all the inhabitants of the conquered territory.

Deuteronomy’s herem differs from all the preceding accounts in that it sees the total destruction of all the inhabitants of Canaan as a fulfillment of a divine command.^[21] This conception is unique in the ancient world and requires explanation.

Forestalling Idolatry

Deuteronomy’s rationale for this extreme behavior was that leaving Canaanites within the land would lead Israel to adopt their abominable ways, and thus lead to Israel’s destruction:

‏^{דברים כ:יח} לְמַעַן אֲשֶׁר לֹא יְלַמְּדוּ אֶתְכֶם לַעֲשׂוֹת כְּכֹל תּוֹעֲבֹתָם אֲשֶׁר עָשׂוּ לֵאלֹהֵיהֶם וַחֲטָאתֶם לַי־הוָה אֱלֹהֵיכֶם.

^{Deut 20:18} lest they lead you into doing all the abhorrent things that they have done for their gods and you stand guilty before YHWH your God.

The threat that the native population of Canaan would pose to Israel appears earlier in Moses’s opening address, where he speaks of destroying these same peoples,^[22] adding that Israel should not consider intermarrying with them. They and their idolatries were to be completely eliminated (Deut 7:1–5, 25–26).^[23] And yet, such an explanation cannot be taken at face value. While Deuteronomy is set in the period immediately preceding the conquest, and is written as if it records the final commands of Moses to the Israelites before entering the land, it is generally dated to the late 7th-century B.C.E., and thus is a projection of the author’s ideals back into the settlement period.

If such a policy did exist as an ideal in some form in early times, it was not honored, nor could it have been. The book of Joshua’s depiction of a total ḥerem of the local population in chapters 1–12, as per Deuteronomy’s instructions, is devoid of historical reality. This is clear from competing traditions in the Bible that attest to Israel’s inability to contend with the stronger Canaanites, as well as from the archaeological record, which shows clearly that many Canaanite cities and villages were not annihilated and remained throughout the land for generations.^[24]

Why, then, does Deuteronomy include such a command in its law collection? The answer is likely connected to the historical circumstances in which Deuteronomy and the Deuteronomistic history were composed.

The Protective Intent of the Canaanite Ḥerem

Deuteronomy (or at least, its core) is generally understood as having been prepared in support of the Judean cult reform undertaken by King Josiah in the late 7^th century. In addition to the Deuteronomic מִשְׁנֵה הַתּוֹרָה, “copy of the law” (Deut 17:18), the Deuteronomistic History that tells the story of Israel from its conquest-settlement in Canaan under Joshua until the Babylonian exile (i.e., the books of Joshua through Kings) presented the historiographic viewpoint of the Deuteronomistic school that viewed the reign of Josiah as the zenith of Israel’s history.^[25]

The ideal king centralized all worship of YHWH in the God-chosen Temple of Jerusalem, cleansing the Land of Israel of idolatry. In this way, Josiah saved Judah the fate of the kingdom of Israel that was sent into exile a century earlier because it had

^{מלכים ב יז:ח} וַיֵּלְכוּ בְּחֻקּוֹת הַגּוֹיִם אֲשֶׁר הוֹרִישׁ יְ־הוָה מִפְּנֵי בְּנֵי יִשְׂרָאֵל וּמַלְכֵי יִשְׂרָאֵל אֲשֶׁר עָשׂוּ.

^{2 Kgs 17:8} They followed the customs of the nations which YHWH had dispossessed before the Israelites.

While Deuteronomy and the Deuteronomistic History held ḥerem up as an ideal, the kingdom of Judah was in no position to assert itself as a significant player in the affairs of the southern Levant, living as it did under the heavy thumb of Egypt that had taken control when Assyria withdrew from the West. Certainly, no ḥerem against all the foreigners who lived in the Land of Israel in the late 7th century could have been dreamed of,^[26] and its inclusion in Deuteronomy had no practical application in Josiah’s Judah.^[27] Instead, the law was meant to send a clear message: Idolatry was completely and totally foreign to the land of Israel, allotted by YHWH to the nations; Israel’s lot was with solely with YHWH.^[28]

Subverted Israelite Cities: Internal Ḥerem

Deuteronomy underscores the importance of keeping idolatry out of the land in its law of the עיר הנידחת “subverted city,” which legislated that Israelites who followed the ways of Canaan would suffer the same fate as their Canaanite predecessors:

‏^{דברים יג:טז} הַכֵּה תַכֶּה אֶת יֹשְׁבֵי הָעִיר הַהִוא לְפִי חָרֶב הַחֲרֵם אֹתָהּ וְאֶת כָּל אֲשֶׁר בָּהּ וְאֶת בְּהֶמְתָּהּ לְפִי חָרֶב. ^יג:יז וְאֶת כָּל שְׁלָלָהּ תִּקְבֹּץ אֶל תּוֹךְ רְחֹבָהּ וְשָׂרַפְתָּ בָאֵשׁ אֶת הָעִיר וְאֶת כָּל שְׁלָלָהּ כָּלִיל לַי־הוָה אֱלֹהֶיךָ וְהָיְתָה תֵּל עוֹלָם לֹא תִבָּנֶה עוֹד.

^{Deut 13:16} Put the inhabitants of that town to the sword and put its cattle to the sword. Doom (ḥerem) it and all that is in it to destruction: ^13:17 gather all its spoil into the open square, and burn the town and its spoil as a holocaust to YHWH your god. And it shall remain an everlasting ruin, never to be rebuilt.

Here was the Canaanite ḥerem turned inward towards Israel itself. The central theme of Deuteronomic teaching—singular allegiance to YHWH in accordance with the covenant of Sinai—was buttressed by the ḥerem law. Not only was the source of idolatry to be eliminated, but even those persons within Israel who were incapable of maintaining their uniqueness in the face of the constant allure of attractive foreign ways were to be uprooted. It certainly seems that the Deuteronomic lawgiver saw Israel as inherently weak; thus he conceived the ḥerem—a two-edged saw, cutting down Canaanites and Canaanized Israelites alike—in order to protect Israel from itself.

The Contradictory Morals of Deuteronomy

The inclusion of the ḥerem law in the Deuteronomic Code led to an inner contradiction within Deuteronomic teaching, for in many social matters the Deuteronomic laws espoused a near universal humanity. Moshe Weinfeld (1925–2009) offered a succinct summary of Deuteronomy's ethical approach:

Biblical scholars have long recognized the moral and humanistic character of Deuteronomy. The book contains many ethical laws which have no counterpart elsewhere in the Pentateuch, and those which do have Pentateuchal parallels appear in Deuteronomy with divergent and more humanistic overtones.^[29]

But these laudable humanistic values did not pertain to the native population of Canaan.^[30]

Owing to this lack of humanity, later Rabbinic interpreters found the ḥerem offensive, leading them to mitigate its terms by creative midrashic exegesis.^[31] But in the end, they were unable to overcome the unambiguous letter of the law: “You shall not let a soul remain alive” (Deut 20:16). After all, a divine command could not be nullified or modified (Deut 13:1), even when the subject of YHWH’s humanity was on the line.^[32]