Nehemiah 10 as an Example of Early Jewish Biblical Exegesis

Published in
On the Way to the Postmodern: Old Testament Essays 1967-1998, Volume 1
(JSOTSup, 292; Sheffield: Sheffield Academic Press, 1998), pp. 88-94

open footnotes

Nehemiah 10, despite its forbidding portal of 27 verses of proper names, is in reality a small treasure house of postexilic interpretations of earlier Israelite law./1./
As far as I know, it has not previously been looked at closely from the perspective of its interpretations of older texts;/2./ if in this respect the present paper has something novel about it, in respect of its Gattung it is a conventional study of 'inner-biblical exegesis' not unfamiliar in current scholarship. However, compared with many such studies, for example of reinterpretation of older material within the texts of Isaiah or Jeremiah, the present text offers us a peculiar advantage: it is an entity independent of the texts it is commenting on, and does not need to be Þrst peeled off as a younger layer from an apparently unitary text.


1. Character of the Document

The document contained in this chapter consists of the following: heading (10.1),/3./ list of signatories (10.2-28), pledge to keep 'God's law' in general (10.29-30), followed by a pledge to keep a set of particular laws (10.31-40). The document does not record a bi-lateral bërªt (it is not a 'covenant', as rsv of 10.1 [evv 9.38] has it), nor is it a collection of priestly tôrôt. It is, ostensibly, a unilateral pledge by the whole community, priests, Levites and people (as represented by family heads). Less obviously, it is a set of halakot probably devised by priestly or levitical lawyers and thereafter assented to by the populace. After the general agreement to 'walk in God's law' (v. 30), particular halakot follow. Every halakah here has something novel about it, I would argue, but at the same time it represents the result of exegetical work upon previously existing laws.


2. Historical Setting

As for the historical setting of this document, three factors are presupposed in the interpretation here set out, though they cannot be argued in detail at this time:

(a) That before the time of Nehemiah 10 Ezra had appointed magistrates and judges, as he had been required to do by the Þrman of Artaxerxes (Ezra 7.25), and that such a bêt midrå¡ as is depicted in Neh. 8.13-15 was in existence.
(b) That the activity of Nehemiah's so-called second governorship (Neh. 13) preceded the making of the pledge of Nehemiah 10.
(c) That, on the subjects dealt with in this chapter, laws identical with the Pentateuch as we now have it were known in Judaea (or, if one prefers to think so, the Pentateuch itself was already in existence).

These assumptions seem to me to make the best sense of the origin, contents and detail of this pledge document of Nehemiah 10, but only the third is necessary to the argument of this paper: namely that Pentateuchal laws form the basis of the exegesis that is developed in this chapter.


3. Types of Legal Development

Five different types of legal development may be traced in the stipulations of this pledge document:

(a) Creation of facilitating law, i.e. establishment of machinery for carrying out a prescription; thus 10.35, with arrangements for the collection and transport of wood, enables the law of Lev. 6.1-6, that the Þre should burn continually on the altar, to be carried out.
(b) Revision of facilitating law, i.e. machinery for carrying out a prescription. One such example may be seen in 10.39 ('it is the Levites who collect'); if authentic, this phrase makes it easier for the tithe law to be carried out by substituting the collection of tithes by Levites at depots in rural towns for the earlier responsibility of citizens to bring their tithes to the temple themselves (cf. 13.5; Deut. 14.23-26; Mal. 3.10). The presence of a priest at the receipt of the levitical tithe (10.39) is a similar revision.
(c) Creation of a new prescription from a precedent in Pentateuchal law: thus what had been in Exod. 30.11-16 an occasional levy for the sanctuary becomes here an annual temple tax (10.33).
(d) RedeÞnition of categories, always in the direction of greater comprehensiveness: thus Þrst-fruits is deÞned for the Þrst time as including the fruit of trees (v. 36; Deut. 26.2 speaks only of the Þrst of the produce of all the ground); work prohibited on the sabbath includes for the Þrst time the business of buying (v. 32); and foreigners prohibited from marriage with Israelites include for the Þrst time all Palestinians ('ammê hå'åreß, v. 31).
(e) Integration of distinct and therefore potentially competing prescriptions: thus, while it could have been argued that the various taxes in the Pentateuch were to be viewed as alternative methods of raising revenue, 10.36-30 speciÞes that all the Pentateuchal taxes are cumulative: Þrst-fruits, prime produce (r'¡ªt), and tithes are taxes that must be added together; and the function of the present pledge is not only to ensure that taxes will be paid, but also to guarantee that the laws about taxes will be interpreted in this way. Similarly, the fallow-year law of Exod. 23.10-11 is not to be replaced by the remission-year law of Deut. 15.1-8-which was a theoretically possible way of handling the two 'seven-year' laws-but it is to be observed in conjunction with it. In both cases it is likely that the law had only been partially observed prior to this time.


4. Exegetical Principles

The exegetical principles guiding (or, permitting) these developments are capable of various types of analyses. The following are some of the more obvious:

(a) The Pentateuchal (or if one prefers to say simply, the existing) law is a relatively closed system; nothing in Nehemiah 10 is radically new; every halakah has some connection with a Pentateuchal prescription.

(b) On the other hand, Pentateuchal (or, existing) law is partially open: extension or reapplication is possible, even to the extent, for example, of bypassing the letter of the law for the sake of its spirit.
(c) Pentateuchal law requires ancillary law in order to be effectual.
(d) Pentateuchal law is regarded as essentially harmonious; apparent tensions tend to be solved by a principle of addition rather than by mediation or compromise.


5. Observations on the Exegetical Principles

Three observations upon these exegetical principles may be made:

(a) The principle of addition as an exegetical method to deal with tensions tends, in the realm of law, to greater rigour. This is illustrated by the tax laws, which by this pledge were probably made more onerous than ever before.
(b) The principle of the necessity of ancillary or facilitating law may or may not create greater rigour. For such law may be only the regularization of what is already customary or the speciÞcation of what is already assumed. Thus, on the one hand, the speciÞcation of the fruit of trees among Þrst-fruits probably prescribes no change from existing custom; whereas, on the other hand, the inclusion of buying in the deÞnition of work prohibited on the sabbath seems to be a new extension of the law generated by the events described in Nehemiah 13.
(c) The exegetical work lying behind this pledge is unsystematic both in coverage and in method. There can be little doubt, despite Jepsen and Kellermann,/4./ that these halakot are ad hoc responses to problems encountered by Nehemiah in his so-called second governorship; for all the items except the sabbatical and remission year correspond to elements of Nehemiah 13-and the seventh year issue had no doubt come under scrutiny because of the crisis portrayed in Neh. 5.1-13. The halakot here may therefore be properly described as devised to meet contemporary exigencies, and the exegetical activity they presuppose is therefore quite different from a systematic consideration of and commentary on the Pentateuchal law.

6. Nehemiah 10 and Earlier Law: Two Examples

Lastly, in several cases the halakot of Nehemiah 10 form the Þnal link in a chain of legal development, throughout the biblical period (a development that of course continued in post-biblical times). Two examples only fall to be considered here:

(a) In the case of sabbath laws, what appears to be the oldest Pentateuchal law (Exod. 34.21) prohibits only male occupational work, ploughing and harvesting being mentioned as two examples or limiting cases. Later legal collections extend the law into the domestic sphere (Exod. 35.3 [P] 'you shall kindle no Þre in all your dwellings') and broaden its application to include all members of the community (Exod. 20.10). The scope of the term 'work' is further extended in Jer. 17.21 where carrying burdens, no doubt produce for market, is declared contrary to the sabbath law. Against this background, Neh. 10.32 yet further extends the deÞnition of work to include buying. For while it was already clear that selling was prohibited (cf. Amos 8.5), since that was occupational work, a new situation had arisen in Nehemiah's time with the setting up of sabbath markets outside Jerusalem. The traders were non-Jews, but the purchasers were Jews. The question was this: was non-occupational, occasional buying to be reckoned as 'work' and thus to be considered contrary to the law? (In England today, by way of parallel, certain Sunday traders risk prosecution, but those who buy from them do not.) Following Nehemiah's vigorous denunciation of buying as a 'profanation' of the sabbath, the halakah of Neh. 10.32 prohibits this particular activity. It is particularly interesting that the other, and more serious, breaches of sabbath law witnessed by Nehemiah (Neh. 13.15) are not so much as mentioned in this pledge; the reason can only be that it was clear in those cases what the law was, whereas in the case of buying the question of its inclusion within the category of 'work' had not been previously resolved.

(b) In the case of the laws on intermarriage, the oldest law is most probably Exod. 34.11-16. Though this passage has often been thought to be largely a Deuteronomistic expansion of v. 11a, Brekelmans has argued convincingly that it contains pre- or proto-Deuteronomic material./5./ The law here speciÞes the traditional group of Canaanite nations (Amorites, Girgashites, et al.), and forbids marriage with their 'daughters'. In the next phase, Deut. 7.1-3, the same list of prohibited nations appears, but the law is extended by the prohibition of the marriage of Israelite women to 'sons' of these nations. In Neh. 10.31, marriage both of Israelite 'daughters' and of Israelite 'sons' is again the subject of the law, but here the traditional list of the Canaanite nations is abandoned, and the prohibited nations are subsumed under the category 'peoples of the land'-which clearly means contemporary Palestinians and includes the Ashdodites, Ammonites and Moabites with whom, as Nehemiah had seen (13.23), mixed marriages had been contracted.
Revision, or rather updating, of the law was long overdue. In Ezra's time, concerned citizens had been obliged to complain to Ezra (9.1-2) that Jews had intermarried with Canaanites, Hittites, Perizzites and Jebusites, among others-something that it had in fact been impossible for anyone to do for several centuries, since most of these races had long died out or in some way wholly lost their identity. But in order to bring marriages with contemporary non-Jewish races within the scope of the law, appeal had to be made, rather anachronistically, to a law that did not explicitly mention the nations with which marriages had been contracted by Jews of Ezra's time. The new category employed in the pledge of Nehemiah 10 to describe aliens with whom marriage was forbidden, viz. 'peoples of the land', was less time-conditioned, even if less speciÞc than the Pentateuchal laws had been. Nehemiah himself had, characteristically, not beaten about the bush when confronted with marriages with Ashdodites, Ammonites and Moabites (10.23-24); but Nehemiah's impulsive response of cursing, beating, and pulling out the hair of those who had not accepted his interpretation of the law as including these races within the forbidden category obviously had to be followed up by the more permanent step of re-wording the law in order to avoid further dispute.
It is a curious fact that the spirit of the law can be more rigorous than the letter. A more literalistic interpretation of the Pentateuchal law would have allowed marriages with Ashdodites, Ammonites and Moabites-for they are not explicitly mentioned among the prohibited nations. Ezra, Nehemiah, and the scholars of the Nehemian age adopted an interpretation according to the spirit (as we might say), since plainly the intention of the Pentateuchal laws was to forbid marriage with nearby foreigners (Canaanites, Palestinians). But if the letter of the law is not always unambiguous, the spirit of the law may be even more open to debate. Deuteronomy 7 itself in fact probably advanced a quite different interpretation of the older law, on the principle of 'according to the spirit'. In Deuteronomy the law against intermarriage is set in the context of the holy war, which can hardly have been of contemporary validity at whatever reasonable date we put upon Deuteronomy. Both the command to exterminate the inhabitants of the land and the command not to intermarry with them function as rhetorical support for the call to purity of worship, which is the basic purpose of the holy war material in Deuteronomy. Deuteronomy's intermarriage law is more an appeal for the rejection of foreign cults than a regulation about marriage, since the only nations speciÞed were most probably no longer in existence by the time the Deuteronomic law was set forth. But in using the older law with its conventional list of the seven Canaanite nations as a vehicle for a purely religious appeal, the Deuteronomic law left itself open to the less 'spiritual' and more literalistic interpretation of the Nehemian community. In this case, the spirit 'killed', so to speak, while the letter would have 'given life'.
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