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Published online by Cambridge University Press: 24 April 2015
Aviam Soifer said that Robert Cover's death left many of us with the feeling that a vital conversation had been interrupted in mid-sentence. What follows are notes for an unfinished conversation on the metaphor of law as bridge and the prophetic function of the judge. They are only preparatory background material. Their focus is upon some tough biblical texts, the kind that leave the mark of their infectious truculence upon those whom they irresistibly engage.
And he said,
“Go and say to this people:
‘Hear and hear, but do not understand;
See and see, but do not perceive.’
Make the heart of this people fat,
and their ears heavy,
and shut their eyes;
lest they see with their eyes,
and hear with their ears,
and understand with their hearts,
and turn and be healed.
1. Soifer, , Reviewing Legal Fictions, 20 GA. L. Rev. 871, 872 (1986)Google Scholar.
2. This material is drawn from a larger body of notes for the Robert M. Cover Study Group sponsored by the Society of American Law Teachers. The larger corpus has been read and commented upon by Bernard Dauenhauer, Ted Lewis, Pat Miller, Tim Polk, and Rob Williams. Their criticism—the gift of those willing to give the manuscript attention and therefore the gift of real friends—has proved invaluable. They disagreed, at points fundamentally, with certain of my arguments, some of which have been radically revised and some of which have not. In the face of my lingering resistance to instruction, they are to be relieved of all responsibility for what appears hereinafter. I had my chance. It will not pass without notice that my recalcitrance in this respect recapitulates a little a phenomenon in the texts under consideration.
3. See Cover, , Foreword: Nomos and Narrative, 97 Harv. L. Rev. 4, 9, 44–45, 47 (1983)Google Scholar.
4. See Cover, , The Folktales of Justice: Tales of Jurisdiction, 14 Cap. U. L. Rev. 179, 189–90 (1985)Google Scholar.
5. Kermode, F., The Genesis of Secrecy 30 (1979)Google Scholar.
6. What is heard through Isaiah's lips is Yahweh's dabar, and for him this is without doubt the most relevant active force in the metahistorical process. By giving expression to Yahweh's dabar, Isaiah moves history. … Other talk is mere lip-dabar, as it is contemptuously called in 36: 5.
Koch, I K., The Prophets 151 (Kohl, trans. 1983)Google Scholar.
7. It seems clear to me that dabar as power is pre-Deuteronomic. But see Weinfeld, M., Deuteronomy and the Deuteronomic School 15 (1972)Google Scholar.
8. See, e.g., 29:9-10; 2 G. von Rad, , Theology of the Old Testament 151–55 (Stalker, trans. 1965)Google Scholar. The prophets “concern was not the faith, not even the ‘kerygma’: it was to deliver the message from Jahweh to particular men and women who, without themselves being aware of it, stood in a special situation before God.” Id. at 129.
9. On the heavenly assembly and the divine lawsuit see: Nielsen, K., Yahweh as Prosecutor and Judge (1978)Google Scholar and sources cited therein; Cross, F., Canaanite Myth and Hebrew Epic 186–90 (1973)Google Scholar; Westermann, C., Basic Forms of Prophetic Speech (White, trans. 1967)Google Scholar; Robinson, H., Inspiration and Revelation in the Old Testament 167ff (1946)Google Scholar; Wright, , The Lawsuit of God: A Form-Critical Study of Deuteronomy 32, in Israel's Prophetic Heritage 26 (Anderson, & Harrelson, eds 1962)Google Scholar.
It is not coincidental that the language of theophany and the imagery of revelation derived from the mythology of the storm god largely fell out of use … in prophetic Yahwism. The prophets chose another language, other imagery with which to describe their intercourse with Yahweh, drawn … from the concept of the messenger of the Council of ‘El. So far as we are able to tell, the prophets did not attempt to suppress in systematic fashion the old hymns and traditions which used the uncouth language of the storm theophany. The attack was on Ba'al and not on the notion that Yahweh controlled the elements of nature. Nevertheless, they used a refined or purged language of revelation, because Yahweh, so to say, no longer used the storm as a mode of self-manifestation.
F. Cross, supra, at 191.
10. On covenant, see Mendenhall, G., Law and Covenant in Israel and the Ancient Near East (1955)Google Scholar; Bright, J., A History of Israel 128–51 (1959)Google Scholar. On curses, maledictions and prophecy, see M. Weinfeld, Deuteronomy and the Deuteronomic School, supra note 7, at 129-38.
11. Koch cautions that the celebrated commissioning is not placed at the beginning of Isaiah and therefore should not be overemphasized; if the redactor did not think it primary, neither should we. 1 K. Koch, The Prophets, supra note 6, at 113.
12. 2 G. von Rad, Theology of the Old Testament, supra note 8, at 145.
13. Id. at 152-53.
14. Von Rad said that Isaiah was a failure in the sense that Israel did not repent in response to his prophecy. Id. at 167. So also John Bright. Bright, Isaiah - I, in Peake's Commentary on the Bible 489, 495 (1961)Google Scholar. I think von Rad and Bright are wrong in this respect. Isaiah—or, rather, the word he proclaimed—was a success. What was said was done. Hearts were hardened. The dabar would only have failed if hearts were not hardened, if Israel had understood and repented. The tale of Jonah is both later and a deliberate counter-example. Jonah prophesied destruction, but Nineveh repented and was spared. Jonah viewed himself as having been duped by God for this reason, i.e. he resented his failure. What he said did not happen. Michael Walzer falsely generalizes that “[p]rophecy aims to arouse remembrance, recognition, indignation, repentance,” and implies “a previously accepted and commonly understood morality.” Walzer, M., Interpretation and Social Criticism 73 (1987)Google Scholar. See id. 73-89. This is a subtle way of attempting to place humans at the controlling center as the occasion and measure of the dabar of God.
15. Hunter, A., “Seek the Lord: A Study of the Meaning and Function of the Exhortations in Amos, Hosea, Isaiah, Micah, and Zephaniah,” Doctoral Dissertation, University of Basel 277 (St. Mary's Seminary & University, Baltimore, 1982)Google Scholar.
16. See K. Nielsen, Jahweh as Prosecutor and Judge, supra note 9, at 1-26.
17. See von Rad, G., Deuteronomy 25–28 (Barton, trans. 1966)Google Scholar; Wright, , Deuteronomy, in 2 Interpreter's Bible, 311, 320–23Google Scholar Weinfeld, Deuteronomy and the Deutero-Nomic School, supra note 7, at 158-64.
18. Other biblical books of law, i.e. the other legal corpora, are the Book of the Covenant (Exodus 20:23–23:19)Google Scholar, the Holiness Code (Lev. 17-26), and the priestly laws for sacrifice and purity (Lev. 1-7; 11-15). There are other smaller sections. Much ancient law underlay some of the extant sources of Deuteronomy, for example. There was possibly multiple or polycentric law in the “anarchic period of the judges.” Weinfeld, Deuteronomy and the Deutero-Nomistic School, supra note 7, at 171. (See also Toroth, id. at 338.) Cover pointed out that Torah “is amenable to a range of meanings that serve both to enrich the terms and to obscure analysis of it.” Cover, Nomos and Narrative, supra note 3, at 11, n.31. From the various meanings it attracted in early biblical sources, “law” became associated with the singular, canonized sense of Deuteronomy, and then with life itself in later rabbincs. Israel was “a society founded on law from the beginning.” Bright, A History of Israel, supra note 10, at 151. See also id. at 130, 149-51; Albright, W., The Biblical Period 11–12 (reprint from Finkelstein, ed. The JewsGoogle Scholar; Their History, Culture and Religion (1949)). “Deuteronomy rather looks like a last stand against the beginning of legislation.” I von Rad, Theology of The Old Testament, supra note 10, at 201.
19. There was before the exile no change in attitude toward or sense of law equivalent to the fundamental change that occurred after the exile. See Bright, A History of Israel, supra note 10, at 418-28; Cover, Nomos and Narrative, supra note 3, at 11-12. Deuteronomy, especially given the range of materials included within it, is not atypical, even though the Deuteronomistic editing was post-exilic.
20. The law is to be obeyed with all one's heart and, in this sense, in spirit. See the exhortations on justice for the poor, e.g. 15:7.
21. 2 Koch, The Prophets, supra note 6, at 11.
22. [T]he commandments had been of service to the people of Israel as they made their way through history and through the confusion occasioned by heathen forms of worship.” 1 von Rad, Theology of the Old Testament, supra note 8, at 91.
23. And for this reason it may appear aligned with reward (so Weinfeld and the association of Deuteronomy with wisdom literature).
24. But see 5:8, 11:26. There are, of course, numerous positive relationships between law and prophecy. For example: Deuteronomy 32 is probably an ancient example of the divine lawsuit employed in classic prophecy; there is close association between Deuteronomy and the contemporaneous prophecy of Jeremiah; when the Book of the Law was presented to Josiah, he immediately sought out the word of the prophetess Huldah; the entire book of Deuteronomy is cast as an oration of Moses, who is described as a prophet. Moreover, later in Israel's history, after the exile, beyond the period upon which I am focusing, prophecy took a turn toward promise and hope and could even be said, in some ways, to have been replaced by law.
Curse flows from breach of the covenant/treaty. Weinfeld, Deuteronomy and the Deuteronomic School, supra note 7 at 156-57; Deut. 28:15ffGoogle Scholar. Weinfeld sees curse and punishment as teaching devices, part of the sapiential approach. Curse and punishment are thereby tamed.
25. See, e.g., Noth, M., The Deuteronomistic history (various trans. 1981)Google Scholar.
26. G. Wright, The Book of Deuteronomy, in 2 Interpreter's Bible, supra note 17 at 317: “an older form of the book exists in chs. 5-26; 28 with introduction in 4:44-49. Chs. 27; 29-30 contain old material, but the exact date of their present written form and of their attach ment to chs. 5-26; 28 is unknown. It is not improbable that they were already attached to the edition of Deuteronomy which was available to the Deuteronomistic historian when in chs. 1-4 he appended an introduction to his history of Israel in Palestine (Deuteronomy through II Kings).”
27. F. Cross, Canaanite Myth and Hebrew Epic, supra note 9, at 278-85.
28. “Thus says the Lord, Behold I will bring evil upon this place and upon its inhabitants, all the words of the book which the king of Judah has read. Because they have forsaken me and have burned incense to other gods, that they might provoke me to anger with all the work of their hands, therefore my wrath is kindled against this place, and it will not be quenched. But as to the king of Judah. … Regarding the words which you have heard, because your heart was penitent … I will gather you to your fathers, and you shall be gathered to your grave in peace, and your eyes shall not see all the evil which I will bring upon this place.” 22:16-20.
On the “negative prophetic cycle” in the Deuteronomic history, see Weinfeld, Deuteronomy and the Deuteronomistic School, supra note 7, at 21-26. On the specific text here in issue, see id. at 25-26. 2 Kings 22-23 do seem to present a principal challenge to his conclusion about the Deuteronomic literature and national reward that leads him to connect Deuteronomy with the sapiential tradition. Compare the Josiah episode with Weinfeld at 307-19.
29. Another reason for placing Deuteronomy in the mouth of Moses is to make the point that law was clear and accessible all along. The Deuteronomist thereby assumes that the law had been known. See 2 Kings 14:6Google Scholar.
30. The years of Josiah may have in fact and directly been pivotal for the Deuteronomist historian. See Noth, the Deuteronomistic History, supra note 25, at 73: “Inevitably this reign was of particular significance to Dtr. because in it that law which he has placed at the beginning of his history as the authentic exposition of the Sinai decalogue was found in the temple and put into practice by the king.”
31. “Dtr. elevates the events of Josiah's time to a general norm ….” Id. at 82.
The history ends on a more or less hopeful note. But the purpose of the history is to explain the calamity that befell Israel.
32. Koch maintains: “Since sin builds an inner-worldly sphere of power, it cannot be set aside just because God decides to let ‘two and two make five.’” 1 Koch, The Prophets, supra note 6, at 98. I am not so sure. Is God bound by arithmetic? Is sin more powerful than God?
33. See Miller, P., Sin and Judgment in the Prophets (1982)Google Scholar. Miller points out that punishment follows sin but not as the necessary working out of an impartial fate. The matter is one of correspondence (and not Koch's Tun-Ergeben). The correspondence is a function of appropriate justice. Punishment is the consequence of God's power.
34. I should add that, unlike the U.S. judicial system, there is here no institutional separation of the judge from the violence of law, no mechanism separating the judge's responsibility from the violent act of his judgment. See Cover, , Violence and the Word, 95 Yale L.J. 1601, 1613–16 (1986)CrossRefGoogle Scholar. See also Martha Minow on the terrorism of King Solomon. Minow, , The Judgment of Solomon and the Experience of Justice, in Cover & Fiss, The Structure of Procedure 447 (1979)Google Scholar.
35. “The events … under King Josiah … are an especially important part of the historical presuppositions to Dtr. 's work. … [T]hese events determined his own view of the history of Israel and of what should have been the case but was not.” Noth, The Deuteronomistic History, supra note 30, at 80. Josiah's reign showed “how things should have been done all along.…” Id. at 73-74.
36. Law is a gift and is good. Paul, e.g., is not anti-nomian.
Much has been written about the relation of law and prophets. Protestant Christians from the time of Luther to the middle of the last century thought of the prophets as exponents of Mosaic law. Julius Wellhausen showed that prophecy was not preceded by law. Wellhausen, , Prolegomena to the History of Israel (Black, & Menzies, trans. 1885)Google Scholar. Subsequent scholarship demonstrated that ancient types of law were early taken up by the Israelites, well before the prophets. See, e.g., Alt, The Origins of Israelite Law, in Essays in Old Testament History and Religion 79 (1966)Google Scholar. B. Gemser maintains that the prophetic context was a frame of mind or general Israelite fascination with law. Gemser, , The Rib-or Controversy-Pattern in Hebrew Mentality, in Wisdom in Israel and the Ancient Near East, Supplements to 3 Vetus Testamentum (Noth, & Thomas, eds. 1955)Google Scholar. Even so, Koch suggests that the appropriate historical sequence is “first the prophets, then the law.” 2 K. Koch, The Prophets, supra note 6, at 3. On the general conversaion about the relation of law and prophets as well as the theological and historical misunderstanding that has attended that conversation in the Christian tradition, see, e.g., 2 von Rad, Theology of the Old Testament, supra note 8, at 3-4, 390-409. My own immediate point about law in the prophets is limited and formal.
37. When God showed himself to Moses, what he disclosed was his backside. Ex. 33:23. This was in part, I assume, because God has a sense of humor but mainly because God's revelation of himself is a revelation of his hiddenness.
“According to … Martin Buber, the perpetual enemy of faith in the true God is not atheism (the claim that there is no God), but rather gnosticism (the claim that God is known).” Lee, P., Against the Protestant Gnostics 15 (1987)Google Scholar (quoting Buber, , The Eclipse of God 175 (Goodman, trans 1952)Google Scholar. A claim to knowledge of God is a false claim because God reveals himself as hidden. All knowledge of God begins and ends in his hiddenness. See 2 Barth, K., Dogmatics, pt. 1, 183 (1957)Google Scholar.
38. There can be no question of who is the acting party. Is this not a moment from which the possibility of interpretation is absent?
39. What, then, is to be said of my interpreting this text on the incapacitation of interpretation?
[W]e humans cannot overcome the dilemma that we are in fact dealing with ourselves every time we talk of God. This dilemma is overcome only when it is none other than God who makes God known to us. And no matter how we humans say “God,” it is only when God is revealed to us through God that we are not dealing with ourselves. Who God is becomes known only in God's own self-definition.
Busch, , God is God: The Meaning of a Controversial Formula and the Problem of Speaking About God, The Princeton Seminary Bulletin 101, 110 (1986)Google Scholar.
40. Lawsuits were also instituted against nations other than Israel. The distinction between insiders and outsiders in these matters did not count.
41. See P. Lee, Against the Protestant Gnostics, supra note 37, at 19-23.
42. It is to be noted that neither test for the authenticity of prophecy was contemporaneously determinative. In the event, the choice had to be made unaided by rules of thumb. It was a matter of faith.
43. Cover, The Folktales of Justice, supra note 4, at 189.
44. Id. at 202.
45. Id. at 202-03.