To Kill and Take Possession, Part 1: Divine Investigations and Divine Ordeals

I've just finished reading an interesting book, To Kill and Take Possession: Law, Morality, and Society in Biblical Stories by Daniel Friedmann. In To Kill, Friedmann, a Jewish legal scholar, goes through a variety of Old Testament stories trying to discern the legal and moral codes operative within those stories. This is an interesting study in that the moral and legal reasoning on display in various biblical stories can be opaque. Worse, the disjoint between contemporary and biblical legal and moral codes can create befuddlement in the modern reader, a befuddlement that leads to the conclusion that the bible is, at best, morally confused or, at worst, barbaric.

The thing that struck me in reading To Kill was how the legal and moral codes in the bible actually change over time. The bible displays moral development. The legal and moral sensibilities of the bible are dynamic and changing over time. For example, the moral and legal ideas operative in early stories are shown to be problematic in later stories. I'd like to devote a few posts to various chapters of To Kill to highlight how the moral and legal notions of the bible are not consistent but change over time.

1.
In Chapter 1 of To Kill Friedmann deals with the ancient conceptions of divine investigation and divine ordeal. The common notion in each is that God is involved in legal proceedings. In divine investigations God aids in identifying guilty persons. This is often done by relying upon a binary device like the Urim and Thummim. The classic biblical example of a divine investigation is the case of Achan and the city of Ai. If you recall, after the victory at Jericho the tribes of Israel fail to take the small city of Ai. The reason was that Achan disobeyed God and took some booty for himself from Jericho. To identify the culprit responsible for the defeat at Ai a divine investigation is used:

Joshua 7.14-20a
"'In the morning, present yourselves tribe by tribe. The tribe that the LORD takes shall come forward clan by clan; the clan that the LORD takes shall come forward family by family; and the family that the LORD takes shall come forward man by man. He who is caught with the devoted things shall be destroyed by fire, along with all that belongs to him. He has violated the covenant of the LORD and has done a disgraceful thing in Israel!' "

Early the next morning Joshua had Israel come forward by tribes, and Judah was taken. The clans of Judah came forward, and he took the Zerahites. He had the clan of the Zerahites come forward by families, and Zimri was taken. Joshua had his family come forward man by man, and Achan son of Carmi, the son of Zimri, the son of Zerah, of the tribe of Judah, was taken.

Then Joshua said to Achan, "My son, give glory to the LORD, the God of Israel, and give him the praise. Tell me what you have done; do not hide it from me."

Achan replied, "It is true! I have sinned against the LORD, the God of Israel."

As Friedmann notes, divine investigations, seen in the case of Achan, are used to identify suspects. By contrast, in a divine ordeal a suspect has already been identified. The divine ordeal is used to determine the guilt or innocence of the suspect. In the divine ordeal the suspect is asked to do something that creates a binary outcome with each outcome predetermined to signal guity versus innocent. The classic divine ordeal is the water ordeal, where the suspected person is thrown into deep water. If the person floats she is guilty. If she sinks, then innocent. The irony of this test appears to have been lost on the ancients.

The only divine ordeal found in the bible is the bitter water ordeal from Numbers 5.11-28:

Then the LORD said to Moses, "Speak to the Israelites and say to them: 'If a man's wife goes astray and is unfaithful to him by sleeping with another man, and this is hidden from her husband and her impurity is undetected (since there is no witness against her and she has not been caught in the act), and if feelings of jealousy come over her husband and he suspects his wife and she is impure--or if he is jealous and suspects her even though she is not impure--then he is to take his wife to the priest...

The priest shall bring her and have her stand before the LORD. Then he shall take some holy water in a clay jar and put some dust from the tabernacle floor into the water. After the priest has had the woman stand before the LORD, he shall loosen her hair and place in her hands the reminder offering, the grain offering for jealousy, while he himself holds the bitter water that brings a curse. Then the priest shall put the woman under oath and say to her, "If no other man has slept with you and you have not gone astray and become impure while married to your husband, may this bitter water that brings a curse not harm you. But if you have gone astray while married to your husband and you have defiled yourself by sleeping with a man other than your husband"--there the priest is to put the woman under this curse of the oath--"may the LORD cause your people to curse and denounce you when he causes your thigh to waste away and your abdomen to swell. May this water that brings a curse enter your body so that your abdomen swells and your thigh wastes away." Then the woman is to say, "Amen. So be it."

The priest is to write these curses on a scroll and then wash them off into the bitter water. He shall have the woman drink the bitter water that brings a curse...If she has defiled herself and been unfaithful to her husband, then when she is made to drink the water that brings a curse, it will go into her and cause bitter suffering; her abdomen will swell and her thigh waste away, and she will become accursed among her people. If, however, the woman has not defiled herself and is free from impurity, she will be cleared of guilt and will be able to have children..."

The bitter water ordeal, like other divine ordeals, uses supernatural forces to identify the guilty from the innocent.

2.
How can divine investigations and divine ordeals illustrate evolving moral and legal sensibilities in the bible? Well, as Friedmann observes, the use of divine investigations and divine ordeals faded over time. Most likely because they were found to be unreliable methods of identifying suspects or separating the guilty from the innocent. Interestingly, Friedmann highlights two moments in the biblical tradition where legal and moral adjudication shifts from the Divine to the human. That is, rather than leaning upon divine powers to investigate or interrogate, these cases show humans using psychological and logical tactics to determine truth from falsehood, guilt from innocence.

The most famous case is Solomon's verdict regarding a child custody case:

1 Kings 3.16-27
Now two prostitutes came to the king and stood before him. One of them said, "My lord, this woman and I live in the same house. I had a baby while she was there with me. The third day after my child was born, this woman also had a baby. We were alone; there was no one in the house but the two of us. During the night this woman's son died because she lay on him. So she got up in the middle of the night and took my son from my side while I your servant was asleep. She put him by her breast and put her dead son by my breast. The next morning, I got up to nurse my son—and he was dead! But when I looked at him closely in the morning light, I saw that it wasn't the son I had borne."

The other woman said, "No! The living one is my son; the dead one is yours." But the first one insisted, "No! The dead one is yours; the living one is mine." And so they argued before the king.

The king said, "This one says, 'My son is alive and your son is dead,' while that one says, 'No! Your son is dead and mine is alive.'" Then the king said, "Bring me a sword." So they brought a sword for the king. He then gave an order: "Cut the living child in two and give half to one and half to the other."

The woman whose son was alive was filled with compassion for her son and said to the king, "Please, my lord, give her the living baby! Don't kill him!" But the other said, "Neither I nor you shall have him. Cut him in two!"

Then the king gave his ruling: "Give the living baby to the first woman. Do not kill him; she is his mother."

Friedmann finds this case noteworthy as Solomon's method here is psychological in nature. That is, Solomon doesn't rely on divine methods, either investigative or interrogative. Solomon's method relies upon human intelligence and psychological acumen.

This movement away from divine to human adjudication is particularly noteworthy in the story of Susanna, an apocryphal chapter of the book of Daniel. The story is told to highlight the wisdom of Daniel. It goes like this.

Susanna is a beautiful maiden. Two tribal elders lust after her and conspire to force her to have sexual relations with them. They do this by confronting Susanna in a garden where she was bathing. They demand that she have sex with them. If she refuses the elders threaten to testify that they caught Susanna naked in the garden having sex with a young man. Susanna, trapped, refuses them and hands her fate over to the tribal jury.

According to Old Testament law only two witnesses were required to prove guilt. In short, with two men plotting against her, Susanna is doomed. With two witnesses she will be found guilty of sexual sin and stoned to death. Just as Susanna is being led to her death, Daniel steps in.

Daniel, like Solomon, doesn't make an appeal to or call for a divine investigation or divine ordeal. He doesn't, thankfully, make Susanna submit to the bitter water ordeal or the sink or swim ordeal. Daniel, rather, does something very curious for the bible: He interrogates the witnesses separately looking for inconsistencies in their stories.

Having separated the two elders Daniel asks each a simple question: "Under what tree did you see the two lovers?" The first elder says, "Under a mastic tree." The second says, "Under an evergreen oak." Susanna is saved by Daniel exposing the lie via this contradiction in testimony. The two elders are then stoned rather than Susanna.

Friedmann points out what is so shocking in this story. Namely, a legal criterion assumed to be absolute (i.e., two witnesses) is found to be in error and inferior to a different kind and wholly new from of legal technique: Logic. According to Friedmann, the rise of human legal techniques in the biblical witness--psychological and logical--show how the bible was slowly extracting itself from more primitive moral and legal notions.