2019.3.4 | Joshua A. Berman. Inconsistency in the Torah: Ancient Literary Convention and the Limits of Source Criticism. Oxford: Oxford University Press, 2017. ISBN 9780190658809.

Review by Lindsey A. Askin, University of Bristol.

Why do modern biblical scholars problematize disparity and dissonance in ancient law and narrative? Joshua A. Berman’s Inconsistency in the Torah explores this question in Pentateuchal criticism, critically approaching the methodological fallacies and analytical shortcomings that come as a result of becoming nobly but ideologically entrenched in detecting redactional layers diachronically in biblical and cognate texts (p.203).

The book is in three sections: Part I explores narrative, Part II covers law, and Part III is a critique of empirical models and a way forward. The problem outset in the Introduction is that Pentateuchal scholars build axiomatic theories based on “their own intuition of what constitutes literary unity” (p.3) and must be more attentive to the compositional realities of ancient Near Eastern texts. Stacking up internal and even intertextual evidence produces circular results, particularly for dating and positing sources.

Part I (ch.1-4) explores the inconsistencies of biblical narrative such as shifting tenses, style, contradiction, repetition, and overlap. Such untidy features have generated redactional theories in scholarship. However, Berman shows how Rameses II’s Battle of Kadesh poem and bulletin of 1274 BCE poses similar incongruities yet is a clear example of unredacted singular authorship (p.27-34). Comparing Ex 13:17-15:19, Berman demonstrates that it is better to see incongruities in biblical narrative as exhortative rather than the product of intertwined sources (p.35-60), and reminds us that poetry is not always older than prose (p.60). Exhortative stress adjusts according to moral needs of the hour, permitting ancient texts to be literally incongruous yet remaining rhetorically sound (p.53-54).

Berman next discusses Hittite treaties and Amarna letters (p.63-80). These rather Orwellian-doublespeak exchanges between vassal and ruler sometimes flout the historical record and would be a typical cause for concern in biblical studies. However, Berman explains that the continual negotiation and re-negotiation of vassal-ruler relationships is careful “diplomatic signalling” and hitting the “reset button” (p.71-72). Here Berman is arguing for a widespread political and literary practice common throughout the ancient Mediterranean and Near East (p.91).

Part II (ch.5-10) turns to the idea of exploring biblical law as non-statutory, i.e. common law, or the system of legal precedent. He argues that despite Deuteronomy’s self-referentiality (Dt 4:2, 13:1; p.190-91), and categorical claims of corporeal punishment (Berman reads these as common rhetoric in the Ancient Near East) the central theme of Deuteronomy’s “repetition of the law” is to refresh exhortatively the vassal-ruler covenantal relationship with a timely renewal upon entry into the Promise Land (p.81-103). Therefore, interpreting biblical law as all-encompassing statutes creates the false problem of legal contradictions across the Pentateuch and the rest of the Hebrew canon.

It is noted that biblical law was not interpreted as statutory until late nineteenth century German scholarship (e.g. de Wette with Exodus 12 and Deuteronomy 16, p.108). This trend reflected the West’s increasing adoption of fixed statutory legislation over common law, even though, as Berman notes, there is no direct Semitic equivalent for nomos (p.113) or lex for that matter. If Deuteronomy is a repetitious supplanting of prior statutory law, then it is not thorough (p.101). Hence, if Deuteronomy is exhortative renewal of the Israel-Divine vassal-ruler context, then old and new law iterations may indeed vary according to both rhetorical stress and historical development (new situations). There are implications here for rewritten scripture and midrash, such as incongruities in the Book of Jubilees noticed by James Kugel and Michael Segal. Those acquainted with repetition and stylistic variation in biblical narrative should not be surprised at the same tendencies in biblical law.

Berman argues that the narrative “breaks” interspersed throughout Pentateuchal law (from Exodus 20 to Deuteronomy 34) are not really narrative interruptions but embedded precedence cases contributing to judgments (p.116). Two excellent examples, I would think, are Lev 10:1-20 and Numbers 16. The absence of copies of Hammurabi’s Code and later incarnations from local courts is similarly the result of a common-law system in action (p.112-13).

Diachronic approaches have led Pentateuchal scholars to imagine the briefest form of law is earlier (e.g. Ex 21:12-14; p.133ff.). However, Berman argues that common-law qualifications (as per special situations) do not follow a predictable direction of growth, since qualifications appended to a law may or may not be recorded at the same time, owing to rhetorical relevance. This means that shorter laws can be contemporary with longer equivalents across the Pentateuch.

Building upon previous research (ZAW 2007), Berman suggests in Chapter 7 that Ruth in its final-form systematically clarifies Deuteronomy 25-26 successively in its plot structure with a series of legal precedents relevant to the widow, orphan, and stranger, not just that of levirate marriage or the status of Moabite converts (p.146). Therefore, Ruth does not necessarily reflect subversiveness (p.147). Such work also weakens theories that Ruth is redacted from separate Naomi and Ruth traditions, or that the book must either predate or ignore Dt 25:5-6.

Restated laws that contradict or seem discordant with Pentateuchal ones have been interpreted as reoriented exegetical agendas (p.168). Berman considers examples of legal blends or conflations of two previous laws into a new one (Ex 12:9 and Dt 16:7 in 2Chr 35:13; Ex 23:11 and Dt 15:1 in Neh 10:32; p.149). Going further, Berman finds that such legal blends make it difficult to triangulate dating (p.154-160), or to argue that legal blends can legitimately be seen as supersessionist or complementary. Berman argues that such contradictory laws are neither subversive nor whitewashing but instead “lemmatic invocations” that expand, contract, and stress according to exhortatory need (p.172, 190). Drawing upon the cautions of Bernard Jackson, Berman argues that the dichotomy between subversive and supersessionist reflects an anachronistic understanding of biblical law as statutory (p.177-79). By contrast, understanding all biblical law as common-law both removes anachronism and resolves apparent discord. Hence Berman’s theory resolves tensions that remain bothersome even after positing scribal flexibility and acceptance of error and multivalence (p.182). Thinking of scribes as glib mistake-makers based on data collected about their scribal errors and variants overall is perhaps unfair. Rather, if we watch for where scribes seem most confident that they are error-free (iterations of divinely-sanctioned law, or in household accounts), then we may discern scribal attitudes towards accuracy and exactitude as being more coherent and serious than previously thought.

In Part III (ch.11-13), Berman digs his heels into Pentateuchal source-criticism (summarized well in p.264-68), arguing that from the nineteenth century onwards, biblicists relied on “intuition and the canons of coherence,” producing a circular approach based on internal evidence (p.223). Yet organizing internal evidence into categorised parts by “noting irregularities” and assembling like-for-like creates biased results (p.209). Moreover, the frequently cited dating yardstick of pre- and post-Exile may well be unsound given equally traumatic collective exilic memory of Hebrew slavery in Egypt (p.274). Losing your home is always painful, regardless of whether it is the result of a famine, the Babylonians, or the bank.

Berman argues that we have a baggage of terms to cope with (p.187), and a problematic framework derived from a contemporary definition of law as rigidly statutory in contrast to the rabbinic sense of cumulative conversation. The Mishnah and Talmud, of course, preserve the entire juristic record for due consideration and future appeal (m.Eduyot 1:5-6; p.197). Berman points out that text is perhaps even more sacred and inviolable if it can’t be written over and thus smoothed out, as in the case of the US Constitution (p.193-95). Common-law is still formal and obeyed, but it forms the tip of a floating iceberg: below water we have the law in practice. By contrast, statutory law, in which nothing can be outside the letter of the law, stays entirely above sea-level.

Berman considers methodological fallacies in dating, discussing Ex 2:1-10 compared to the Sargon legend (p.228-35), arguing theoretically that if there are many multiple hypothetical factors affecting likelihood of contact, then the factors compound into a lesser, not greater, chance of direct dependence. The picture here is slightly different from other parts of the book where Ancient Near Eastern parallels are shown as highly likely parallel. Berman points to three types of dating abuses in Pentateuchal scholarship: negation (throw out evidence as being of no value), bisection (positing stages), and suppression (ignoring evidence). The last offence may at times be the side result of narrow reading.

Lastly, Berman considers dating fallacy and “suppression” with relation to the Flood (Genesis 6-9), even though scholars are loyal to data driving the axiom (p.240). The segregation of P and non-P into ideological camps quickly becomes circular (p.241), and the “needs of the theory create the text” (p.242) despite what the resulting separate sources look like afterwards: non-P and P are aggressively split, while any internal complexity or coherence are problematized into false dichotomies (p.244). That “unseemly repetition” (p.246) which offends modern tastes for neatness and minimalism is the culprit. Bad data is censored from good data (p.248), and a work-around axiom is employed requesting that Genesis 6-9 is simultaneously altered yet not so altered that P and non-P are indistinguishable (p.250), meaning that every posited redactor is bad at the art of redacting (John Barton’s “disappearing redactor”).

Berman detects that when Genesis 6-9 is segregated into P and non-P, the compelling comparisons with Near Eastern cognate antecedents disappear (Ch.13). Moreover, a clear chiasmic structure and resonances with re-creation and Genesis 1 are irrevocably lost (p.260-1). Genesis 6-9 cannot simultaneously be the work of a sloppy redactor and a subtle poetic genius.

Both scholars and students would find this book useful as a methodological safeguard against the temptation of data-mining for inconsistency, error, and incoherence as default yardsticks for dating and compositional development within source- and redaction-criticism. Berman’s study is a significant contribution capable of inspiring methodological progress in biblical and cognate studies. We probably teach the source-criticism story in classrooms because it is still simple to understand and, perhaps, because it both generates an aura of respectability for post-religious students and remains easy to critique for religious conservatives. However, Berman rightly reminds us of Spinoza’s humility (p.206) as a check for scientific positivism, and cites Gersonides’ suggestion that repetitiousness might have simply been the literary style of the times (p.276). At the same time, it would be amiss to advocate an ideological framework of agnosticism wholesale when today there are larger reservoirs of external evidence than in the days of Spinoza or Wellhausen. Biblical repetition as the result of common-law, is a strong argument in this book that affects source criticism, but the implication that the Pentateuch resists all forms of dating does not necessarily follow.

This reviewer is reminded of Jacques the Fatalist’s extremely reticent father, who was inclined some days not to believe the Bible “[b]ecause it repeated itself. He thought that was a form of loose talk unworthy of the Holy Spirit. He used to say that people who repeat themselves were fools who took people who listened to them for fools” (Denis Diderot, Jacques the Fatalist, 1780). We have always known the Pentateuch repeats itself but historically we have been less certain about why it does so. Berman’s Inconsistency in the Torah demonstrates that the repetition of incongruous laws and “unnecessary” repetitions have their own setting and context in the ancient traditions of common-law, an insight that should have reverberations in Pentateuchal criticism.

Lindsey A. Askin
University of Bristol
l.askin [ at ] bristol.ac.uk