Do Biblical Laws Reflect a Tribal Society?

The earliest mention of Israel as a people is found in a large poetic stela, commissioned by Pharaoh Merneptah, the fourth Egyptian Pharaoh of the 19^th dynasty, in 1208 B.C.E. Most of the stela describes his wars with Libya, but it ends with the following summary (The Context of Scripture, 2.41; text 2.6):

The (foreign) chieftains lie prostrate, saying “peace” (literally, shalom); No one lifts his head among the Nine Bows.

Libya is captured, while Hatti is pacified.

Canaan is plundered, Ashkelon is carried off, and Gezer is captured. Yenoam is made into non-existence;

Israel is wasted, its seed is not, and Hurru is become a widow because of Egypt.

The identity and location of Ashkelon and Gezer are well known; the former is on the coast and became a Philistine city, while Gezer is on the western edge of the hill country in the Cisjordan, and north of Ashkelon. The location of Yenoam, however, is a matter of debate.^[1]

We know that all three names refer to cities because they are written with the determinative for toponyms. (In certain writing systems, determinatives, which are not read, explain to what class the word they accompany belongs).^[2] The next term, Israel, however, is marked with a determinative in the Hieroglyphics for a people, i.e., an ethnonym (the name of a people) not a toponym (the name of a place).^[3]

Clearly, Merneptah’s claim is hyperbolic. Archaeological excavations have no destruction layers in Ashkelon from this period, and the excavations at Gezer show only minor changes. Similarly, no largescale destruction or abandonment of Israelite settlements in the Cisjordanian highlands date to this period.^[4] In any event, Merneptah’s stela marks the earliest time we know that a group of people called Israelites existed in this area.^[5]

The next time Israel is mentioned in an outside source is in the 9^th century, first in the cuneiform inscription of the Assyrian king, Shalmaneser III (called the Kurkh Monolith), whose description of the battle of Qarqar lists Ahab of Israel third in its catalogue of foes, and second in the Moabite inscription of King Mesha, who mentions how Omri, King of Israel, conquered Moab’s northern land. In these inscriptions, Israel is a state, with a king and an army.

What was Israel between the 13^th and the 9^th centuries? Putting aside the question of the historicity of the Bible’s account of the United Monarchy (Saul, David, and Solomon) in the 10^th century,^[6] let’s look specifically at the 12^th and 11^th centuries. This period, which archaeologists refer to as the Iron I, is described by the Bible as the period of the Judges.

Although we know that in the 12^th century B.C.E., small Israelite villages begin to dot the Cisjordanian highlands,^[7] we do not know what kind of larger social structure, if any, these villages formed. As there were no large central sites in this period, and little material evidence of social complexity, they were certainly not a centralized polity (or polities) as they were to become in the Iron II, but the question remains: Were they just a loosely associated group of independent villages, or did they divide up into larger tribal units covering a swath of territory?

Sociological Models: Escalating Complexity

Some scholars have attempted to answer this question by looking at sociological models, which identify escalating complex societies—from a family, to clan, tribe, chiefdom and finally statehood—and try to correlate this with the biblical narrative. Thus, Israel starts with a family (Jacob and sons), moves to a clan (children of Israel), to the 12 tribes (13 with Levites), to the chiefdom of Saul, and culminates in the Davidic or Solomonic state.^[8] But this model cannot be accepted as history in a simplistic fashion.

The biblical sources describing this period are saturated with fanciful material. In the biblical account, each of the Israelite tribes descends from one of the twelve sons of Jacob, renamed Israel.^[9] During their sojourn in Egypt, this family grew from 70 people (Exod 1:5) into 600,000 males of fighting age (Exod 12:37), meaning something like two million including women, children, and elderly, clearly, an inflated number.^[10]

Moreover, the narratives that describe this period do not contain what anthropologists consider the key features of tribal society. The detailed order of the leaders of the tribes and their encampment and marching in the first two chapters of the Book of Numbers are thoroughly ceremonial, and imply a centralized power in overall control, none of which reflects tribal realities.

Even the book of Judges does not discuss classic tribal leaders, whose main tasks are to arbitrate and settle intratribal conflicts, and lead the people through day-to-day issues, but focuses on battle leaders, which comprise only one small part of a tribal chieftain’s responsibilities.^[11]

Tribal Laws vs. State Laws

Another way some scholars have attempted to peer into Israel’s pre-monarchic period and into their so-called “tribal period” is by looking at the law collections. Although scholars date the Bible’s law collections to the monarchic period, such systems would typically have incorporated elements of earlier tribal legal systems if such systems had been in place in that society’s earlier history. Such an approach, however, suggests that Israel was never a tribal society, since Israel’s laws are decidedly state-like and not tribal.

Max Gluckman (1911–1975), the Jewish founder of the Manchester school of anthropology, published a monumental book on tribal laws in the mid-1960’s,^[12] which initiated a growing amount of research into the nature of tribal laws and how they differ from state laws. One particularly useful framework was published by Ada Pecos Melton, a Native American activist from the Pueblo of Jemez. As President of American Indian Development Associates, Melton worked on the intersection of Native American tribal laws and United States laws, and published a comparative study of their philosophies, aims, and purposes.^[13]

Melton notes that state laws are “based on a retributive philosophy that is hierarchical, adversarial, punitive, and guided by codified laws and written rules, procedures, and guidelines.”^[14] This is in contrast to tribal laws that are holistic, victim based, reparative, restorative, and tailor made to given individuals and situations.^[15] This goes hand in hand with another distinction, namely that state trials are impersonal and look only at the individual whereas tribal trials are personal and take into consideration matters of family.

In short, states are distancing and impersonal, and tend to legislate in a one size fits all manner, while tribes take into account the individuals involved and even their families, and tend to look for solutions that maximize satisfaction to all parties while dealing with the problem fairly. Similar features have been noted in studies on Bedouin tribal laws.^[16]

These distinctions are, admittedly, very broad, and it is not prudent to generalize that “state laws” or “tribal laws” have entirely fixed properties in all cases in all societies. Nevertheless, working with this general framework, biblical laws typify state side and not the tribal side, as we can see from a look at the legislation of punishments:

Lex Talionis—The measure for measure law appears three times in the Torah (Exod 21:23–25; Lev 24:17–20, Deut 19:21). Assuming that we understand the principle literally, i.e., that one cuts off the perpetrators hand and not that one pays the value of the hand to the victim as the rabbis understand it, it is a classic example of retributive as opposed to restorative justice.^[17] Significantly, this law appears in other ANE law collections, such as the Laws of Hammurabi, implying that these laws were adapted for the Israelite system by learned court scribes familiar with ANE law and were not a product of a more ancient tribal legal tradition.^[18]

Execution and Excision—One of the most common punishments in the Bible is execution, which is proscribed for crimes against YHWH as well as crimes against other people. Another common punishment is excision (כרת), i.e., removal from the community.^[19] With the exception of murder (see later), both of these punishments are rare in restorative justice systems common in tribal societies. In Melton’s words:

Reparative principles refer to the process of making things right for oneself and those affected by the offender’s behavior. To repair relationships, it is essential for the offender to make amends through apology, asking forgiveness, making restitution, and engaging in acts that demonstrate a sincerity to make things right.

The communal aspect allows for crime to be viewed as a natural human error that requires corrective intervention by families and elders or tribal leaders. Thus, offenders remain an integral part of the community because of their important role in defining the boundaries of appropriate and inappropriate behavior and the consequences associated with misconduct.

Polemicizing Against Clannish Settlements for Murder

In some cases, biblical law seems to be polemicizing against what might be called “clanish behavior” in which disputes are settled by direct intervention of family members.

Vicarious Punishment—The Torah makes it clear that only the perpetrator is to be punished for the crime:

^{דברים כד:טז} לֹא יוּמְתוּ אָבוֹת עַל בָּנִים וּבָנִים לֹא יוּמְתוּ עַל אָבוֹת אִישׁ בְּחֶטְאוֹ יוּמָתוּ.

^{Deut 24:16} Parents shall not be put to death for children, nor children be put to death for parents: a person shall be put to death only for his own crime.^[20]

Vengeance is common in tribal relationship as a mean to restore harmony and peace in the tribe. In a case of a murder, Bedouin tribal laws prescribe the entire tribe of the offender liable for vengeance regardless if any individual was involved in the crime or not. Bedouin laws permit the killing of one of the five closest kin of the murderer, but does not specify which one.^[21] This, of course, is not allowed in American tribal societies but was and is still, common among Bedouin tribes.

Family Intervention—Numbers 35 rules that a murderer must be executed while a person convicted of manslaughter (unintentional homicide) must live in a city of refuge (עיר מקלט) until the death of the high priest. It then goes on to say:

^{במדבר לה:לא} וְלֹא תִקְחוּ כֹפֶר לְנֶפֶשׁ רֹצֵחַ אֲשֶׁר הוּא רָשָׁע לָמוּת כִּי מוֹת יוּמָת. ^לה:לב וְלֹא תִקְחוּ כֹפֶר לָנוּס אֶל עִיר מִקְלָטוֹ לָשׁוּב לָשֶׁבֶת בָּאָרֶץ עַד מוֹת הַכֹּהֵן.

^{Num 35:31} You may not accept a ransom for the life of a murderer who is guilty of a capital crime; he must be put to death. ^35:32 Nor may you accept ransom in lieu of flight to a city of refuge, enabling one to return to live on his land before the death of the priest.

This law seems to be responding to a practice or at least a notion that the punishment is not coming from the state but from the family as the injured party. Thus, if the family accepts some sort of payment, punishment for the crime can be overlooked. Tribal laws, in contrast, take into account the option of family intervention. In certain Bedouin laws, for example, forty camels can be an acceptable payment for a relative killed, if the family is willing to accept it.^[22]

Sometimes, the family would offer ʿawra, which, in this context, means that a woman from the perpetrators clan should marry, without a dowry, a member of the victim’s family, in order to bear him a child, a substitute for the victim.^[23] Marrying without dowry is considered to be totally disgraceful, which is part of the connotation of the term ʿawra. (The word literally means “part of a body which should not be exposed,” cognate with the biblical Hebrew ʿerwa.) In some cases a pregnant camel is offered as a part of the compensation as well.

The Blood Avenger—The Priestly legislation of Numbers 35 is aware that the victim’s family will attempt to kill the person who killed their loved one, regardless of whether it was murder or manslaughter. Yet, in this case, it doesn’t make the practice illegal entirely, but attempts to work around it. On one hand, it rules that in case of murder, the death penalty should be imposed only after a trial:

^{במדבר לה:כד} וְשָׁפְטוּ הָעֵדָה בֵּין הַמַּכֶּה וּבֵין גֹּאֵל הַדָּם עַל הַמִּשְׁפָּטִים הָאֵלֶּה. ^לה:כד וְהִצִּילוּ הָעֵדָה אֶת הָרֹצֵחַ מִיַּד גֹּאֵל הַדָּם וְהֵשִׁיבוּ אֹתוֹ הָעֵדָה אֶל עִיר מִקְלָטוֹ אֲשֶׁר נָס שָׁמָּה וְיָשַׁב בָּהּ עַד מוֹת הַכֹּהֵן הַגָּדֹל אֲשֶׁר מָשַׁח אֹתוֹ בְּשֶׁמֶן הַקֹּדֶשׁ

^{Num 35:24} And the assembly shall decide between the slayer and the blood-avenger. ^35:25 The assembly shall protect the manslayer from the blood-avenger, and the assembly shall restore him to the city of refuge to which he fled, and there he shall remain until the death of the high priest who was anointed with the sacred oil.

On the other hand, it also allows a member of the family of the victim to execute the criminal who is found guilty of the murder:

^{במדבר לה:יט} גֹּאֵל הַדָּם הוּא יָמִית אֶת הָרֹצֵחַ בְּפִגְעוֹ בוֹ הוּא יְמִיתֶנּוּ. ^לה:כ וְאִם בְּשִׂנְאָה יֶהְדָּפֶנּוּ אוֹ הִשְׁלִיךְ עָלָיו בִּצְדִיָּה וַיָּמֹת. ^לה:כא אוֹ בְאֵיבָה הִכָּהוּ בְיָדוֹ וַיָּמֹת מוֹת יוּמַת הַמַּכֶּה רֹצֵחַ הוּא גֹּאֵל הַדָּם יָמִית אֶת הָרֹצֵחַ בְּפִגְעוֹ בוֹ.

^{Num 35:19} The blood-avenger himself shall put the murderer to death; it is he who shall put him to death upon encounter. ^35:20 So, too, if he pushed him in hate or hurled something at him on purpose and death resulted, ^35:21 or if he struck him with his hand in enmity and death resulted, the assailant shall be put to death; he is a murderer. The blood-avenger shall put the murderer to death upon encounter.

Moreover, the Torah even makes room for simple acts of vengeance even when the person is not found guilty of murder:

^{במדבר לה:כו} וְאִם יָצֹא יֵצֵא הָרֹצֵחַ אֶת גְּבוּל עִיר מִקְלָטוֹ אֲשֶׁר יָנוּס שָׁמָּה. ^לה:כז וּמָצָא אֹתוֹ גֹּאֵל הַדָּם מִחוּץ לִגְבוּל עִיר מִקְלָטוֹ וְרָצַח גֹּאֵל הַדָּם אֶת הָרֹצֵחַ אֵין לוֹ דָּם.

^{Num 35:26} But if the manslayer ever goes outside the limits of the city of refuge to which he has fled, ^35:27 and the blood-avenger comes upon him outside the limits of his city of refuge, and the blood-avenger kills the manslayer, there is no bloodguilt on his account.

Here the Torah is clearly attempting to push through a more standardized state law system of execution only after a trial, while leaving some room for what appears to be a remnant of a more clannish form of pre-state justice of family-based retribution.^[24] This is not tribal, however, since even in pre-tribal societies, families would avenge their relatives on their own. In fact, tribal societies would attempt to mediate such conflicts with ransom payments as noted in the previous example.

That this feature (family retribution) appears specifically the Priestly legislation, which many scholars date quite late, is surprising; perhaps it demonstrates how tenaciously clannish behavior remains rooted in all societies. (Think of mob wars between “families” or the Hatfield-McCoy feud of Kentucky in the late 1800s.)

State Laws… Mostly

In short, murder laws are exceptional in that they seem to be aware of pre-state legislation, actively polemicizing against it (in the first two examples of tribal features), and in one case (in the third example of family or clan based laws), retaining aspects of it while limiting its scope.^[25] Even here, state law dominates, and in other laws, pre-state law is hardly even a factor.

Thus, the most we can say is that Israel’s laws date from the period of the state and we know very little about what came before it. If Israel was once a confederation of tribes—and I suspect it may not have been—it left little if any fingerprints on their system of law.