Bernard Levinson, Extract from: "THE FIRST CONSTITUTION"

(CARDOZO LAW REVIEW, 2006, Vol. 27:4)

It has long been recognized that there are very striking similarities between the distinctive religious and legal requirements of Deuteronomy and the account of the major religious reform carried out by King Josiah in 622 BCE. That reform had been inspired by the discovery in the Temple of a “scroll of the Torah” (2 Kings 22:8). Josiah’s reform restricted all sacrificial worship of God to Jerusalem and removed foreign elements from the system of worship (technically, the “cultus”); it culminated in the celebration of the first nationally centralized Passover at the Temple in Jerusalem (2 Kings 22-23). Because these royal initiatives correspond closely to Deuteronomy’s distinctive requirements, scholars have long identified this “scroll of the Torah” as Deuteronomy and assigned the book a seventh-century date

Levinson, continued

Deuteronomy is associated with a movement of major religious and social reform that took place in the southern kingdom of Judah at the time of neo-Assyrian hegemony in the Near East. As a strategic
response to the neo-Assyrian incursions, Hezekiah all but abandoned the outlying countryside to the invaders. He contracted Judah into a rump state, protected by fortress cities at the borders, in defense of the royal capital, Jerusalem, at the center. In order to urbanize the population, he began to dismantle Judah’s extensive rural cultus and the familiar clan structure that supported it. Josiah’s so-called “reform” of 622 BCE continued this process as he centralized the cultus and established the Jerusalem Temple as the exclusive site for legitimate worship of Yahweh. Cult sites other than those in Jerusalem were
demolished, while the Temple itself was purged of any elements not viewed as Yahwistic.

Even previously legitimate Yahwistic shrines in the countryside were declared illegitimate, despite their legacy of having legendary patriarchal and prophetic figures associated with them.

The legal corpus of Deuteronomy, which is intimately connected with this comprehensive transformation of Judean society and religion, thus had two primary goals:

(1) to stipulate that sacrifice is legitimate only at the central sanctuary (implicitly, the Jerusalem Temple); and (2), conversely, to abolish the multiple local altars and sanctuaries throughout Judah as illegitimate.
The impact of this reform program extended beyond such explicitly cultic matters, however, to include other areas of public life like justice and the political structure of the state.

In fact, while the first section of the legal corpus primarily addresses technical cultic matters
(such as sacrifice, tithes, and the festival calendar, with additional material added by way of association), its second section makes scant direct reference to the cultus. Instead, it lays out a plan for the complete restructuring of the major judicial, political, and religious institutions of ancient Judah. The unit begins with the requirement to establish a system of judicial officials throughout the land: Deut. 16:18-20.

Levinson, continued.

Several cultic regulations follow, which are reused from the first section of the legal corpus...

The new unit then continues, providing a comprehensive blueprint for the institutional structure of the Judean polity:
§The local court system with its procedural rules
§The “High Court” at the Temple in Jerusalem

§The office of the monarch

§The priesthood
§The office of prophet.

The sequence of officials that it names—judge, king, priest, prophet—reflects neither an ascending nor a
descending scale of political, religious, or social status. The logic of that sequence instead reflects the priorities of the authors of the legal corpus itself as they systematically draw the consequences of cultic
centralization for other spheres of public life, including judicial procedure and public administration.

In doing so, the authors subordinate the entire institutional life of ancient Judah to the authority
of Deuteronomic Torah. The program of drawing the consequences of cultic centralization for other spheres of public life begins with the structure of justice in the local sphere. Here Deuteronomy introduces two innovations, corresponding to the two distinct contexts for local justice that existed
prior to centralization.

The first was the system of the “elders,” who were deeply rooted in the clan network of the Judean countryside and thus operated independently of any centralized state authority. They held court at the “village gate,” which provided the conventional site for a public hearing. It was precisely that autonomy of the elders and the clan network—as the bearers of the traditional way of life and with a vested interest in its preservation—that centralization sought to dismantle in order to restructure Judean society.

The authors of Deuteronomy therefore replaced the older system with a new and professionalized judiciary in order to bring local clan justice under centralized authority. Strikingly, the new judges are installed precisely in the seat of honor reserved by tradition for the elders, who are here summarily evicted from office, replaced... without even being mentioned: “Judges and judicial officers shall
you appoint for yourself in each of your village gates.” This new and now professionalized judiciary assumed responsibility for all routine legal cases.
A second context for local justice prior to centralization also required transformation. Certain legal cases required cultic resolution, either by means of a judicial ordeal officiated over by a priest or a judicial oath of innocence sworn at a sanctuary or temple and thus symbolically in the presence of the divinity. The recourse to the cultus was necessary in ambiguous or disputed legal cases where—in the absence of witnesses and evidence—there were insufficient grounds to issue a judicial finding based upon empirical criteria. In such cases, the litigants were remanded to the sanctuary to swear an oath before the deity who, by virtue of his access to suprarational knowledge, presided over the hearing and ruled as omniscient Judge. For that reason, regular access to the local sanctuary was essential to the everyday judicial life of the populace. This held true even in cases that ostensibly fell within the sphere of civil or criminal law, such as contested deposits or accusations of theft. The abolition of local altars threatened, therefore, to deny the community access to an essential context for resolving a wide range of judicial disputes, unless alternative means of resolution were provided. Consequently, just as the legal corpus earlier redirected all sacrificial activity from the local sphere to the central sphere, so does it here stipulate that all disputed or ambiguous cases must similarly be remanded to the Temple as the only site that provided legitimate access to divine resolution.
The two legal paragraphs introducing this double transformation of local justice interlock. By stipulating that a preponderance of witnesses is the necessary condition for conviction in the local sphere, the first paragraph in effect restricts the jurisdiction of the local courts to cases that can be empirically resolved. Within the limits of that operational restriction, however, local judicial authority is maximized, since the local judiciary is empowered to try capital cases and even to adjudicate serious religious transgressions like apostasy, on condition that witnesses are available.

The second paragraph, concerned with judicial procedure at the Temple, is equally dialectical in its legal logic, since it is concerned neither with ritual trespass nor with questions of cultic purity or impurity. Indeed, such cases are not even mentioned here. Instead, the paragraph demarcates the
jurisdiction of the court at the Jerusalem Temple, paradoxically, by employing secular cases of criminal or civil law. If any such case “extends beyond your ken”—that is, should neither witnesses nor evidence be available—then the ambiguous case must be remanded to the central Temple, since it requires divine adjudication.

THE TRANSFORMATION OF THE CENTRAL SANCTUARY
In the process of establishing the central sanctuary as the High Court, Deuteronomy also radically revises the traditional form of cultic justice. The changes involve the locus of cultic justice, access to which
now requires pilgrimage to the central Temple. The changes also affect, more subtly, the form of justice: Deuteronomy 17:8-13.

The procedures for obtaining a verdict at the central sanctuary detailed here make no reference to the conventional priestly manipulation of the lots in order to issue a judicial ruling.

Nor is there reference to the judicial use of the Urim and Thummim, the oracular devices carried by the High Priest and stored within the “breastplate of justice,” which hung from his vestment.

Elsewhere their use serves as the hallmark of the priestly tribe of Levi, charged with responsibility for judicial oracles.

Nor is there any hint of a judicial ordeal officiated over by a priest or of a judicial oath before the

divinity. Instead of employing specific language appropriate to the setting of an oracular ruling at the Temple, as the context demands, the unit substitutes Deuteronomic cliché. No longer is a traditional priestly “ruling” (torah) at issue, one concerned with specific, ad hoc questions of cultic purity or impurity. The reference to the oracular responsum—“according to the instruction [i.e., the
torah] that they shall teach you”—remains cultic only in vestigial terms, so strongly is it colored by the language and thought of Deuteronomy.

The oracle from the Temple bespeaks the distinctive priorities of the authors of the legal corpus, and repeatedly emerges as scribal “word”.

Zion’s sanctuary has here been completely transformed by Sinaitic law.