Deuteronomy and Hittite treatiesA recent exchange of essays in the Journal of Ancient Judaism has highlighted an issue that has long festered in biblical studies, and which has recently been the subject of articles in the most prestigious journals in the field. Professor Joshua Berman has argued, in two papers in the Journal of Biblical Literature as well as in other writings, that comparative evidence supports a date for Deuteronomy in the second millennium BCE rather than in Neo-Assyrian times. This elicited a sharp response from Professor Bernard Levinson and Professor Jeffrey Stackert, to which Berman responded; Levinson and Stackert have now written a detailed response to the response.[footnoteRef:1] [1: Joshua A. Berman, CTH 133 and the Hittite provenance of Deuteronomy 13, JBL 130 (2011), 25-44; Joshua A. Berman, Histories Twice Told: Deuteronomy 1-3 and the Hittite Treaty Prologue Tradition, JBL 132 (2013), 229-250; Bernard M. Levinson and Jeffrey Stackert, Between the Covenant Code and Esarhaddons Succession Treaty: Deuteronomy 13 and the Composition of Deuteronomy, JAJ 3 (2012), 123-140; Joshua A. Berman, Historicism and Its Limits: A Response to Bernard M. Levinson and Jeffrey Stackert, JAJ 4 (2013), 297-309; Bernard M. Levinson and Jeffrey Stackert, The Limitations of Resonance, JAJ 4 (2014), 310-333. Professors Berman, Levinson, and Stackert were all gracious enough to respond to my questions and suggestions, and this piece, though it does justice to none of their individual contributions, has been enriched by them all.]

What makes this exchange especially interesting is that the dating of Deuteronomy has long been the linchpin on which much of the rest of the dates assigned to biblical literature hangs.A word of background is important for understanding the significance of Bermans claim and the responses. Biblical scholars have long been very interested in dating the alleged sources found within the Torah. There are two types of dating: relative dating, meaning sequencing the sources in order from earliest to latest, and absolute dating, meaning given a specific date for example, the thirteenth century for one or more of the sources. In order to arrive at any real historical scheme, both types of datings are needed.Let us take an example from a different realm. Based on internal Egyptian sources, we can reconstruct the list of pharaohs from the various dynasties. This gives us only a relative dating, however: we may know that there was a king Amenemhat who ruled for 30 years, followed by Senwosret who ruled for 45, and so on, but we would have no way of situating these kings on a time line with actual dates. We need some other way of pinning this all on a time line, some data point that will enable absolute dating: we need something to enable us to say that Amenemhat came to the throne in 1991 BCE. Theoretically, only one data point is needed for this. With that linchpin in place, all the relative information can be used to situate everything else in an absolute scheme.Scholars have often concluded that the Torah is comprised of originally disparate sources. They have often disagreed about sequencing those sources on a timeline, however. What they have usually agreed on is the linchpin: the book of Deuteronomy is regularly dated to the seventh century BCE. If other sources are judged to be earlier than Deuteronomy, they are perforce earlier than the seventh century; if they are later than Deuteronomy, they are no earlier than the sixth century namely, the period of the Babylonian Exile.The view that Deuteronomy dates to the seventh century has been the prevalent one since at least Wilhelm M. L. de Wette, in the very beginning of the nineteenth century. De Wettes argument was based primarily on a two-park argument: (1) Deuteronomy was the book found in Josiahs eighteenth year (622 BCE), which provoked Josiahs reforms; (2) the book was new at that time.The first part of this argument goes back to long before De Wette,[footnoteRef:2] and he himself was apparently only reflecting what he took to be the conventional view. The early Church Fathers Jerome, among others held this view,[footnoteRef:3] as did the commentator printed as Rashi on Chronicles,[footnoteRef:4] as well as Hobbes in the late medieval period.[footnoteRef:5] The primary justification for this conclusion is the number of parallels between the narrative of Josiahs reforms (2 Kings 22-23) and the book of Deuteronomy.[footnoteRef:6] [2: See E. W. Nicholson, Deuteronomy and Tradition (Oxford: Oxford University Press, 1967), 1-7; M. J. Paul, Hilkiah and the Law (2 Kings 22) in the 17th and 18th Centuries: Some Influences on W.M.L. De Wette, in Das Deuteronomium: Entstehung, Gestalt und Botschaft (ed. N. Lohfink; Leuven: University Press, 1985), 1-10; Lowell K. Handy, Historical Probability and the Narrative of Josiahs Reform in 2 Kings, in The Pitcher is Broken: Memorial Essays for Gsta W Ahlstrm (ed. Steven W. Holloway and Lowell K. Handy; JSOTSS 190; Sheffield: Sheffield Academic Press, 1995), 252-275, at 254-255.] [3: The Rabbis never, to my knowledge, indicate what the book was, although see the claim in b. Yoma 52b that the book was opened to Deuteronomy 28:36.] [4: Pseudo-Rashi ad 2 Chronicles 34:14.] [5: Thomas Hobbes, Leviathan (reprint in London: Dent, 1973), 204. The passage is in chapter 33: But though Moses did not compile those Books entirely, and in the form we have them; yet he wrote all that which hee is there said to have written: as, for example, the Volume of the Law, which is contained, as it seemeth, in the 11 of Deuteronomie, and the following Chapters to the 27. And this is that Law whichhaving been lost, was long time after found again by Hilkiah, and sent to King Josias, who causing it to be read to the people, renewed the covenant between God and them.] [6: S. R. Driver, A Critical and Exegetical Commentary on Deuteronomy (ICC 5; New York: Charles Scribners Sons, 1916), xlv. Driver makes the provocative observation that the passages which principally influenced Josiah were 6:4-5, 14-15; 12:2-7; 16:21-22; 18:9-15; and 28. He does not do anything with this observation, however.]

Scholars have repeatedly returned to this point, to fortify it against opposing views. In the 1920s there was a push to down-date Deuteronomy to the period after the Exile. In 1927, the Journal of Biblical Literature held a symposium on the date of Deuteronomy, in the face of a strong push to date it post-exilically. Lewis Bayles-Paton wrote a thorough article there entitled The Case For the Post-Exilic Origin of Deuteronomy, whose point was to destroy that case. Bayles-Paton listed 27 features of the Kings narrative that were explicable only by assuming that the book found was Deuteronomy.[footnoteRef:7] Other scholars pointed out that the same later author who wrote Deuteronomy could have rewritten the account of Josiahs reforms to make it correspond to the laws he was legislating.[footnoteRef:8] [7: Lewis Bayles-Paton, The Case For the Post-Exilic Origin of Deuteronomy, JBL 47 (1928), 322-357, at 325-326.] [8: See the account of the history of scholarship in Nicholson, Deuteronomy and Tradition, 1-7.]

The great Biblicist S. R. Driver fought hard against the opposite view: that Deuteronomy was composed before the seventh century. He was willing to allow a date as early Manasseh or the early years of Josiah, but no earlier, and for this he lists ten reasons.[footnoteRef:9] These reasons basically boiled down to the fact that Josiah is the first king who is said ot have fulfilled the precepts of Deuteronomy, thus making an earlier existence for the book doubtful. [9: Driver, Deuteronomy, xlvi-xlviii.]

The standard view was defended again in the 1960s by H. H. Rowley.[footnoteRef:10] There have been some modifications and alternatives propounded, which remain within the same fundamental perspective. Thus, Moshe Weinfeld argued that the book developed from the late eighth century through the later seventh,[footnoteRef:11] and others have argued for an early seventh-century date. Broadly, this approach remains the mainstream position, notwithstanding minimalistic attacks on the view that Deuteronomy or any part of the Bible was textualized before the Exile. Norbert Lohfink has commented rather recently, Hardly any new perspective seems to have appeared. The consensus continues to identify Deuteronomy [as the found book of 2 Kings 22] in some form or another.[footnoteRef:12] [10: H. H. Rowley, The Prophet Jeremiah and the Book of Deuteronomy, in From Moses to Qumran: Studies in the Old Testament (New York: Association Press, 1963), 187-208.] [11: Moshe Weinfeld, The Emergence of the Deuteronomic Movement: The Historical Antecedents, in Das Deuteronomium, 76-98.] [12: Norbert Lohfink, Zur neuren Diskussion ber 2 Kn 22-23, in Das Deuteronomium, 24-48, at 31 n. 35.]

There has long been one very good reason to consider dating Deuteronomy far earlier than the seventh century, and in to the second millennium BCE: certain core elements of the book seem to be based on treaty forms most similar to the Hittite treaties known from the fourteenth and thirteenth centuries BCE. That Deuteronomy relies on the the form of a treaty is another well-established consensus position in biblical scholarship. The book has seven parts:Preamble: 1:1-5Historical prologue: 1:6-4:40Basic stipulation of allegiance: 5-11Covenantal clauses: 12-26Invocation of witnesses: 4:26; 30:19; 31:28Blessings and curses: 28Oath-imprecation: 29:9-28These seven parts find their parallels in the second millennium Hittite treaties.[footnoteRef:13] There are also treaties known from the seventh century; these are Neo-Assyrian treaties, and they are somewhat different in form from the Hittite examples. In particular, there is no historical prologue, and the blessings for loyalty, if they exist at all, are much shorter than the curses for disloyalty.[footnoteRef:14] [13: See also Kenneth A. Kitchen, Ancient Orient and Old Testament (Chicago: Inter-Varsity Press, 1966), 96-97.] [14: See especially Moshe Weinfeld (Covenant Making in Anatolia and Mesopotamia, JANES 22 (1993), 135-139.]

Because of this, conservative scholars such as Kenneth Kitchen have long argued that Deuteronomy most naturally finds its home in the second millennium, rather than the first millennium. As mentioned above, this has regularly been rejected. The strongest argument for the later date is in the details.In both Deuteronomy 13 and 28, scholars have pointed to specific passages that are supposed to show direct dependence on the Vassal Treaties of Esarhaddon, composed in the early seventh century BCE. Obviously, if such dependence can be shown, Deuteronomy in its current form cannot antedate that time. The most compelling argument regarding Deuteronomy 28 is in the comparison of Deuteronomy 28:26-33 and lines 419-430 of the Vassal Treaty of Esarhaddon (VTE).[footnoteRef:15] Weinfeld outlined the following chart: [15: Moshe Weinfeld, Traces of Assyrian Treaty Formulae in Deuteronomy, Biblica 46 (1965), 417-427.]

DeuteronomyCurseVTECurse

27boils and scurvy419-420leprosy (Sin)

28-29darkness robbery422-424darkness (ama)

26animals eat flesh425-427animals eat flesh (Ninurta)

30awife sleeps with428-429wife sleeps with the enemy another (Venus)

30b;32house taken by other;sons and daughters to other people429-430asons not masters of the house

33other nations eat fruit430bforeign enemy takes goods

There is no obvious connection between the boils and scurvy of v. 27 and the darkness and unlawfulness in v. 28 within the the Bible. In the Mesopotamian text, on the other hand, where the same conjunction exists, it is easily explainable: it is based on the hierarchy of the Assyrian pantheon.[footnoteRef:16] The plague of leprosy is always associated with Sin, and the curse of darkness, symbolizing unlawfulnes, is of course associated with ama, whose inheritance is kittum. This shows, then, that the borrowing can only be one way: these verses in Deuteronomy seem to have been incorporated as an independent literary unit, which in substance was borrowed from Assyrian treaty forms.[footnoteRef:17] [16: Weinfeld, Traces, at 420-423.] [17: Weinfeld, Traces, at 123. See also Hans Ulrich Steymans, Eine assyriche Vorlage fr Deuteronomium 28, 20-44, in Bundesdokument und Gesetz: Studien zum Deuteronomium (ed. Georg Braulik; Freiburg: Herber, 1995), 119-141.]

Regarding Deuteronomy 13, Professor Berman published an article in the Journal of Biblical Literature arguing that although there are similarities between Deuteronomy and the Vassal Treaties of Esarhaddon, there are closer parallels to Hittite treaties of the second millennium BCE.[footnoteRef:18] This article focused on the so-called sedition clause. In VTE, the text mandates that any individual who hears seditious thoughts from a close friend or family member turn that person in to the Assyrian authorities. In Deuteronomy, the same principle is applied to one whose friend or family member encourages the worship of gods other than the God of Israel. The political has been translated into the religious, or, to put it differently, religion has been conceptualized politically. This feature of Deuteronomy has been studied often, including a series of penetrating studies by Professor Bernard Levinson.[footnoteRef:19] Berman claims, however, that there are equally relevant parallels in Hittite treaties, which establish very similar rules. [18: Berman, CTH 133 and the Hittite provenance of Deuteronomy 13. Prof. Berman later argued in another JBL article (Histories Twice Told: Deuteronomy 1-3 and the Hittite Treaty Prologue Tradition) that the Hittite treaties obviate the need for a source-critical approach to the contradictions between the narratives at the very beginning of Deuteronomy and other texts within the Torah.] [19: See Dion, Paul, Deuteronomy 13: The Suppression of Alien Religious Propaganda in Israel During the Monarchic Period, in Law and Ideology in Moarchic Israel (ed. Baruch Halpern and Deborah Hobson; JSOTSS 124; Sheffield: Sheffield Academic Press, 1991), 147-216; Bernard Levinson, But You Shall Surely Kill Him! The Text-Critical and Neo-Assyrian Evidence for MT Deuteronomy 13:10, in Bundesdokument und Gesetz: Studien zum Deuteronomium (ed. Georg Braulik; Freiburg: Herber, 1995), 37-63; Levinson, Textual criticism, Assyriology, and the History of Interpretation: Deuteronomy 13:7a as a Test Case in Method, JBL 120 (2001), 211-243; Levinson, Recovering the lost original meaning of (Deuteronomy 13:9), JBL (1996), 601-620; Levinson, The Neo-Assyrian Origins of the Canon Formula in Deuteronomy 13:1, in Scriptural Exegesis the Shapes of Culture and the Religious Imagination: Essays in Honour of Michael Fishbane (ed. Deborah A. Green and Laura S. Lieber; Oxford: Oxford University Press, 2009) 25-45; Levinson, Esarhaddons Succession Treaty as the Source for the Canon Formula in Deuteronomy 13:1, JAOS 130 (2010), 337-347.]

Bermans article received a a thoroughly critical response from Prof. Bernard Levinson and Prof. Jeffrey Stackert.[footnoteRef:20] Levinson and Stackert argue that Bermans argument cannot carry the weight assigned to it: the parallels between Deuteronomy and VTE are too strong to be dismissed; the parallels between Deuteronomy and the Hittite treaties are weak enough that they can be dismissed; there is no known historical way that the Hittite treaties could have made their way into Israelite consciousness, so although these are two ancient Near Eastern cultures, no dependence is possible. [20: Bernard M. Levinson and Jeffrey Stackert, Between the Covenant Code and Esarhaddons succession treaty: Deuteronomy 13 and the composition of Deuteronomy, Journal of Ancient Judaism 3 (2012), 123-140.]

I am less persuaded by many of Levinsons and Stackerts arguments, although that third one raises weighty questions. It is worth noting that until 2009 it was not known that copies of the VTE were brought to the west, either, and yet scholars were prepared to accept that the Neo-Assyrian treates had influenced Deuteronomy. The difference is that here there is massive evidence for the diffusion of Assyrian influence on the Levant already in the eighth century.[footnoteRef:21] More to the point is that there are clear examples where we just don't know how texts and ideas were transmitted, but there is no real doubt that they were. Within biblical studies, one of the most striking examples is the book of Lamentations, which is modeled on city laments known from Sumerian exemplars nearly a millennium and a half earlier (and 500 miles away).[footnoteRef:22] To my mind, then, the real question is whether the parallels are judged to be compelling. If they are, then the how of the transmission can be left as a question, rather than a necessary pre-condition for analysis. [21: For discussion, see Shawn Zelig Aster, Transmission of Neo-Assyrian Claims of Empire to Judah in the Late Eighth Century B.C.E., Hebrew Union College Annual 78 (2007), 1-44.] [22: See also my comments on this issue, regarding other examples, in History of Religions 51 (2012), 289. Stackert and Levinson do grant that this is true; the example they cite is the parallel between Laws of Eshnunna 53 and Exodus 21:35. This example has actually never impressed me as much, but the details need not detain us now.]

It should also be recalled that the basic structure of Deuteronomy is more similar to Hittite treaties than to the Neo-Assyrian treaties. It is true that there is a Neo-Assyrian treaty with the king of Qedar which apparently had a historical prologue.[footnoteRef:23] This actually strengthens Bermans position in another way, though: somehow the form of the Hittite treaty was transmitted down to Neo-Assyrian times, although we have no idea what the mode of transmission was. [23: See Simo Parpola and Kazuko Watanabe, Neo-Assyrian Treaties and Loyalty Oaths (SAA 2; Helsinki: Helsinki University Press, 1988), 68, discussed by Noel Weeks, Admonition and Curse: The Ancient Near Eastern Treaty/Covenant Form as a Problem in Inter-Cultural Relationships (JSOT Sup 407; Edinburgh: T & T Clark, 2004), 47, to which my attention was drawn by Yitzhaq Feder, The Significance of Hittite Treaties for Biblical Studies and Orthodox Judaism (http://thetorah.com/significance-of-hittite-treaties-for-torah-judaism/).]

The central question issue, of course, is whether there is in fact sufficient evidence to have confidence in the traditional 7th-century date of Deuteronomy. I am not convinced. Like everyone else, I am acutely aware of the inability I have to fully free myself of my own biases, and my religious position in life, and teaching at Yeshiva University, certainly encourage certain biases. On the other hand, and more positively, such a position forces me to think carefully even about consensus positions, which I personally do not adopt simply because they represent the scholarly consensus. The evidence has to be examined carefully, since the stakes are quite high. To this point, I have not seen very strong evidence that Deuteronomy as a whole is 7th-century. On the contrary, whether or not the Hittite parallels are the closest ones, the point is that there are parallels to many of the features in Deuteronomy from literature from Old Babylonian through Neo-Babylonian times. These parallels are not helpful for dating purposes, therefore.[footnoteRef:24] As mentioned earlier, there are certain details, especially in Deuteronomy 28, that suggest more strongly a connection to the Vassal Treaty of Esarhaddon. To accommodate those, a compromise position seems to be readily available: there was a frame of Deuteronomy in the second millennium already, but that some of the specific passages were added, or updated, later in the first millennium. [24: Markus Zehnder, Building on Stone? Deuteronomy and Esarhaddons Loyalty Oaths, Bulletin for Biblical Research 19 (2009) 341-374 and 511-535.]

To me it appears that the debate reflects the high stakes involved in this issue. If Berman is correct, and there are closer or just as close, or even just more-or-less-equally-close parallels between Deuteronomy and second-millennium Mesopotamian literature, then the single linchpin for absolute dating of all of the Torah falls apart. That Deuteronomy, at least in some form, dates back to the second millennium BCE appears to be a more tenable position than it did earlier. We can look forward to the joint volume by Levinson and Stackert on the book of Deuteronomy, which will no doubt deepen our understanding of this pivotal book, and further high-quality work by scholars such as the three whose work was discussed here will enlighten us all.