The Invention of Judaism: Torah and Jewish Identity from Deuteronomy to Paul

The Invention of Judaism: Torah and Jewish Identity from Deuteronomy to Paul

by John J. Collins

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Most people understand Judaism to be the Torah and the Torah to be Judaism. However, in The Invention of Judaism, John J. Collins persuasively argues this was not always the case. The Torah became the touchstone for most of Judaism’s adherents only in the hands of the rabbis of late antiquity. For 600 years prior, from the Babylonian Exile to the Roman destruction of the Second Temple, there was enormous variation in the way the Torah was understood. Collins provides a comprehensive account of the role of the Torah in ancient Judaism, exploring key moments in its history, beginning with the formation of Deuteronomy and continuing through the Maccabean revolt and the rise of Jewish sectarianism and early Christianity.

Product Details

ISBN-13: 9780520294110
Publisher: University of California Press
Publication date: 02/14/2017
Series: Taubman Lectures in Jewish Studies , #7
Edition description: First Edition
Pages: 336
Product dimensions: 6.00(w) x 9.10(h) x 1.00(d)

About the Author

John J. Collins is Professor of Old Testament Criticism and Interpretation at Yale Divinity School. His books include Introduction to the Hebrew Bible, The Dead Sea Scrolls: A Biography and The Apocalyptic Imagination. He is general editor of the Yale Anchor Bible Series.

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The Invention of Judaism

Torah and Jewish Identity from Deuteronomy to Paul

By John J. Collins


Copyright © 2017 The Regents of the University of California
All rights reserved.
ISBN: 978-0-520-96736-6


Deuteronomy and the Invention of the Torah

The people of Israel and Judah had a distinct ethnic identity long before the Law of Moses was formulated, at least as we have it in the Bible. There is general consensus that that identity took shape in the last centuries of the second millennium B.C.E., but opinions differ widely as to whether anything can be said about it with confidence. The stele of Merneptah is usually accepted as confirming the existence of an entity called "Israel" in the late thirteenth century B.C.E., but it tells us no more than the name, and even the reading of the name is disputed. A certain amount can be said, on the basis of archaeology, about the cultural "stuff" that characterized the central highlands in this period — housing structures, pottery, diet, and so on. Some features of this culture were distinctive, and may have been ethnic markers (e.g., the apparent absence of pig bones suggests an avoidance of pork). The fact that the Philistines were uncircumcised may go some way to explaining the importance of circumcision in later Jewish tradition. But as Ann Killebrew acknowledges, "Attempts to locate Israel's ethnogenesis in the small Iron I villages in the hill-country and marginal regions ultimately go back to the biblical narrative as recounted in the books of Joshua and Judges." These books, however, date from many centuries later.

In the first half of the first millennium B.C.E., Israel and Judah were kingdoms. Their inhabitants were largely defined by their allegiance to these kingdoms and by their distinctive, though by no means exclusive, devotion to the god YHWH. They had their distinctive customs and practices, largely centering on the cult, but these were not codified in the form of a law until late in the monarchic period. If we may judge by the biblical record, Israelite and Judean identity was largely shaped by traditional stories, which we now have in the Pentateuch and in the case of Judah also in the books of Samuel and Kings. Here again we are dependent on sources that attained their final form after the demise of the monarchies. The manner in which these stories took shape is arguably the most complicated and contested topic in all of biblical scholarship. Our present concern, however, is not with the narratives, important though these undoubtedly were, but with the attempt to formulate the Israelite/Judahite way of life as law.


On the canonical biblical account, the Law was first revealed to Moses on Mount Sinai, as recorded in Exodus 19–24. This account includes the theophany in chapter 19, the Decalogue in chapter 20, the Book of the Covenant in 20:22 to 23:33, and an account of the sealing of the covenant in chapter 24. This picture is complicated, however, by several factors.

All scholars agree that the account is composite. (Witness the number of times Moses ascends the mountain.) The older documentary hypothesis, which dominated scholarship from the late nineteenth to the mid-twentieth century, recognized brief framing elements as Priestly (Exod 19:2; 24:15b, 17–18). The account of the theophany was assigned to J or to JE, the Decalogue to E, and Exodus 24 to some combination of J and E. The Book of the Covenant was viewed as an older legal collection. Exodus 34 was thought to contain the Yahwist Decalogue. In the words of S.R. Driver, "In its original form 341-4, 10-28 was J's account of the original establishment of the covenant at Sinai ... and parallel to the narrative of E in 2022-2333 243-8." According to the neo-documentary hypothesis of the early twenty-first century, however, no law is given at Sinai in the J source. The theophany is "simply a display of Yahweh's presence before the Israelite people." The covenantal laws in Exod 34:11–26, which have often been attributed to J, are now widely regarded as "a late revision and redactional adaptation of earlier texts." In this regard it should be noted that in some old poetic texts, such as Deut 33:1–2 or Judges 5:4–5, Sinai appears as a mountain to the south of Israel from which Yahweh marches forth as a divine warrior to aid his people. Sinai appears to have been a place of theophany before it was associated with the giving of the law.

On all versions of the documentary hypothesis, the laws of Exodus 20–23 are firmly entrenched in E, where the mountain is called Horeb, as also in Deuteronomy. Scholars who do not subscribe to the documentary hypothesis also recognize that this material, or most of it, is older than D and P. Erhard Blum concludes that "the synoptic evidence gives preference to some form of Exod 20 as the Vorlage of Deut 5," although he finds indications of later transformations in Exodus 20 as well. Likewise Reinhard Achenbach writes: "If we compare Dtn 5,23–30 with the parallel story in Ex 20,18–21 it is obvious that in the Exodus-Version we have the older tradition of the narrative."


Regardless of whether the laws in Exodus 20–23 were part of the E source or were independent traditions until they were edited into the Pentateuch or Hexateuch, we do not know the context in which they were originally formulated, or what kind of authority they enjoyed. A wide range of settings has been proposed for the Book of the Covenant. Most scholars agree that these laws were reworked in Deuteronomy, and so can hardly be later than the middle of the seventh century B.C.E.

A terminus a quo is more difficult to establish. The laws presuppose a settled society, and obviously do not reflect the life of tribes wandering in the wilderness. David Wright has demonstrated in detail that the Book of the Covenant, which on his view includes the Decalogue, is heavily influenced by the Laws of Hammurabi. Wright argues that such borrowing was most likely to have occurred in the Neo-Assyrian period, "some time between 740 and 640 B.C.E. and perhaps close to 700," a time at which Israel, in extremis, and Judah had of necessity extensive contact with Assyria. David Carr, who accepts the dependence on Hammurabi, argues that since there is little reflection of the monarchy, the laws better fit "the still peripheral character of the monarchy in the tenth and ninth centuries than the more developed monarchy and urban situation of the late eighth to seventh centuries."

Carr is more optimistic than Wright "about the possibility of oral-written transmission of Mesopotamian traditions such as Hammurabi from the Levantine Bronze Age city-states where they are attested in an Iron II context." Yet as Wright remarks, "It is hard to imagine why and how a premonarchic or even incipient monarchic society would produce a collection resembling LH [the Laws of Hammurabi] and other cuneiform collections." Similarly, Jean-Louis Ska remarks that "the first redaction of the code could hardly have occurred before the 7th or 8th century B.C.E. because it requires a sufficiently developed legal and literary culture, which according to recent research could not have existed earlier." Ska also notes that the attention to slaves and foreigners presumes a society with great social disparities, such as is presupposed in the eighth-century prophets.

The most remarkable feature of the laws in Exodus, however, when viewed against the background of ancient Near Eastern law, is that they are not promulgated by the order of a king, but by God. Despite occasional suggestions that the code should be associated with the founding of the Northern Kingdom by Jeroboam or the reform of Hezekiah, it is not in fact attributed to any king. Some scholars, such as Carr, have inferred that these laws must date from a time before the monarchy was firmly established. Yet, as Douglas Knight has argued,

there is not much in the Book of the Covenant that can be traced unequivocally to the villages of ancient Israel. As a whole, this text is a literary artifact and does not necessarily bear resemblance to any actual legal formulations or practices of the period.

A more plausible time might be found after the collapse of the Northern Kingdom. Alternatively, the laws might have been formulated by scribes or priests who were critical of the kingship in the manner of the prophets.

The consensus of contemporary scholarship is that neither the great Mesopotamian law "codes," such as that of Hammurabi, nor the laws of Exodus functioned as statutory law, or were binding on judges. The king, rather than a law code, was the source of legal authority. As Martha Roth has noted, "Whether or not the king was always himself an active participant in the administration of the legal system, he was always its guardian, for the application of justice was the highest trust given by the gods to a legitimate king." Judges relied on their sense of the mores of a community rather than on written law. Written laws are never cited as decisive in trial scenes, and sometimes cases are decided in contradiction of what is written. Law collections were descriptive rather than prescriptive. They may have been "an aid for applying the law, but not a rule." Bernard Jackson has suggested four kinds of use for written laws in the ancient Near East, including Israel: monumental, archival, didactic, and ritual. They might serve as royal propaganda, or serve various uses for scribes or priests. But they did not function as the law of the land in a prescriptive sense. Jackson refers to the laws of Exodus as "wisdom-laws," with the implication that they functioned in a way similar to Proverbs: they helped inform the wise person, but did not determine right conduct automatically.

The earliest forms of judicial dispute resolution rely upon intuitions of justice against a background of custom, rather than analysis of linguistically formulated rules.

Michael Satlow argues that the function of these laws was largely educational: "Whether or not these laws were ever enforced in Israel, they served a role in the education of Israelite scribes — the code was another text to know, copy, and learn to rework."

Konrad Schmid argues that this situation changed when the Book of the Covenant took on the character of divine law. "The theologizing of the law," he writes, "was accompanied by a completely altered conception of law. "The nonprescriptive character, he claims,

changes the moment the Book of the Covenant, especially through the introduction in Exod 20:22 — 21:1 and the insertion of the second person, becomes "divine law" and thus simultaneously the standard for the rest of the further history of law in the Old Testament, which as a consequence necessarily becomes an interpretation of the more ancient divine law.

It remains possible, however, that the Book of the Covenant was originally conceived as divine law. It must have been proposed on some authority, and no other authoritative source of law is known in the biblical tradition. But in any case it is not apparent that these laws suddenly became prescriptive (rather than "wisdom-laws") when they were promulgated as divine law, or that this led to a new concept of law. Rather, the character of these laws remains the same, whether they are thought to have been promulgated at Sinai or not.

The claim of divine revelation with respect to the Book of the Covenant can be seen as directly analogous to the claims of the prophets: an attempt to trump the prevailing social order by appeal to a higher authority. But it is not apparent that the claim that these laws were divinely revealed was universally accepted, any more than the claims of the prophets that their words were "the word of the Lord." Eventually, when these laws are embedded in the Torah they attain official status as part of the Law of Moses, but official recognition of these laws is not clearly attested before the time of Ezra. (Whether the use of the Covenant Code in Deuteronomy constitutes an acknowledgment of its authority, or rather subverts whatever authority it had, is a disputed issue.)We simply do not know what status either the "Book of the Covenant" in isolation or the Elohist document enjoyed (assuming that there was such a document). The mere claim that certain laws were divinely revealed was never enough to establish their authority in Israelite or Judean society, unless that claim was endorsed by an authority with the power of enforcement.

The Book of the Covenant can never have been viewed as a comprehensive statement of the requirements of the covenant in any case. Neither the Decalogue nor the Covenant Code is designed to distinguish Israel from its neighbors, although the Decalogue includes some distinctive provisions, such as aniconism and Sabbath observance. Both documents are too elliptic and random in the topics they discuss to constitute a statement of Israelite identity. They may be viewed as the earliest step toward formulating the ancestral laws of Israel or Judah, but we do not know what status they enjoyed before the compilation of the Pentateuchal Torah.


A much more substantial formulation of the law of Moses is found in Deuteronomy. This is the first book of the Pentateuch to use the word torah in the sense of "law code" (Deut 17:19–20; 28:58; 29:19; 21:11–12). Elsewhere in the Pentateuch the word refers to specific instructions, especially priestly instructions, such as "the torah of the guilt offering." We shall also encounter torah as a term for wisdom instruction in Proverbs. In the book of Joshua we read of "the book of the law of Moses" (seper torat Moshe, Josh 8:21; 23:6), in 1 Kgs 2:3 of "the law of Moses, and "the book of the law" (seper ha-torah) occurs in the account of the reform of Josiah in 2 Kings 22–23. Deuteronomy is the only book of the Pentateuch that is ascribed to Moses (not as author but as the record of the words that he spoke). The word "Torah" is only applied to the whole Pentateuch by extension from Deuteronomy.

For the last two centuries, since the dissertation of W.M.L. de Wette, the nucleus of Deuteronomy has been associated with the cultic reform of King Josiah in 621 B.C.E. The reform is reported in 2 Kings 22–23 and 2 Chronicles 34–35. The account in Chronicles, however, cannot be regarded as a source of independent historical information.

In 2 Kings 22–23, two distinct accounts may be distinguished: one tells of the discovery of "the book of the law," and the other describes the cultic reforms of Josiah in 23:4–20. There is no mention of the book of the law in 23:4–20. 2 Kgs 23:17 notes that what Josiah does at Bethel had been predicted by a "man of God," implying that it was thereby authorized, but without referring to an authoritative book.

The content of the book is only indicated indirectly. Josiah is gravely concerned because his ancestors have not obeyed its words. The prophetess Huldah is more explicit about the cause of divine wrath:

Because they have abandoned me and have made offerings to other gods, so that they have provoked me to anger with the works of their hands, therefore my wrath will be kindled against this place. (2 Kgs 22:17)

In response to this book, however, Josiah

made a covenant before the Lord, to follow the Lord, keeping his commandments, his decrees, and his statutes, with all his heart and all his soul, to perform the words of this covenant that were written in this book. (23:3)

There can be little doubt that the "book" referred to in this passage is supposed to be Deuteronomy, in some form. Also, when the king commands the people to observe the Passover "as prescribed in this book of the covenant" (23:21), it is clear that some form of Deuteronomy is implied, from the perspective of the author of Kings.

Whether Josiah himself was actually inspired by a law book, however, is more controversial. Norbert Lohfink claimed to identify a "short story (Kurzgeschichte) concerning the discovery of the Torah and the sealing of the covenant." He supposed that it was "composed shortly after the events that it relates, perhaps as a memorandum, perhaps as propaganda." In favor of an early date for the finding narrative is the assurance given to Josiah by Huldah that "I will gather you to your ancestors, and you shall be gathered to your grave in peace" (2 Kgs 22:20). Lohfink comments that "it is hardly conceivable that the text would have been composed in this form after the sudden death of Josiah at Megiddo." Conversely, he questioned whether the "reform report" was a preexisting source. He noted that "the schematic presentation of the destruction of cult objects gives indication of relationship to Deut 9:21" (the destruction of the golden calf), and that "many, though not all, cultic matters that are mentioned hearken back to details already provided in the Books of Kings."

Other scholars, however, have been disposed rather to see the reform report as older and the account of the finding of the law as a later, Deuteronomistic elaboration. Lauren Monroe suggests that the reassurance given to Josiah by Huldah relates not to the manner of his death but to his burial. One might argue that the point of the reassurance is that Josiah would not live to see the destruction of Jerusalem, and indeed that the passage presupposes both the destruction and Josiah's premature death. The motif of book-finding is widely attested in ancient Near Eastern literature as a way to legitimate religious and political changes.


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Table of Contents

Introduction: Jews, Judeans, and the Maccabean Crisis
1. Deuteronomy and the Invention of the Torah
2. Torah in the Persian Period
3. The Persistence of Non-Mosaic Judaism
4. Torah as Narrative and Wisdom
5. Torah as Law
6. Torah and Apocalypticism
7. The Law in the Diaspora
8. Paul, Torah, and Jewish Identity

Index of Scripture and Other Ancient Sources
Index of Modern Authors

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