Points of view about the text. Let’s see what is going on. We open with a brief look at the reading het Hebrew text.  If one does this, and does it again there may be a first reaction similar to that of Westbrook  that the formulation of this law is "remarkably clumsy". It is beyond doubt that the Hebrew text as it stands now contains several inconsistencies and difficulties. Some seem to hold the view that we have to accept the text as it stands, others however, believe that once the Hebrew text was disturbed. The former accepts the text as an organic whole and interprets it that way. The latter has begun an inquiry into what may have happened to the original law, and more importantly: what was that original text or Urgesetz? 

Solving the problem In past decades several attempts have been made to reconstruct the original law. Scholars depart form the idea that the ancient redactor - or several redactors in succession - at one time or the other made (minor) mistakes, added passages and changed the meaning of the law. Therefore, a plausible cosmetic correction of the text is the key to find the original biblical law and its meaning. This way of reasoning suggests that the original law used more or less the same words as the version in the MT that the redactor left us. But why should the redactor make changes? One thing is claer, if he did, then the result is still rather “clumpsy”. (J. te Lindert, 13-14)

Although these skillful attempts to reconstruct an original law deserve respect and the results often look convincing, an important question is left unanswered: why should a redactor change a law that makes sense to one that fails to? But to the present writers mind, the phenomenon of the hand of the redactor and/or his failure(s) became too much a method on its own in today's studies to resolve the problem about the original wording of Exod.xxi 22-25. This does not mean that changes in the law are denied or a redactor or more redactors may have changed the text or made mistakes. What is asked is, that much attention has been paid to the linguistic work of the redactor but that the Sitz im Leben, ACBR such as social and cultural development, ethics and philosophy have been lost sight of.  In addition to S.E. Loewenstamm statement, it might be probable that the redactor or compiler was aware of the social and cultural developments of his time.  This means that the law refers to a moral or social problem in a society. Because we don’t think that ever a law is made or copied from another culture (as the Book van the Convenant is) without any reference to a significant fenomenon in society. (J.te Lindert, 19). To the present authors mind, a redactor if he changed the text, had a certain social, cultural or religious practice in mind.

 The aim of this study: what may have happened? So this study aims to reconstruct some stages in the development of the (meaning of this) law by paying special attention to the social, cultural, philosophical and ethical influences. But before we go on, first this: The influence of the redactor:  Of course it is highly speculative to look in another one’s mind. Specially in the mind of someone we don’t know, a person we have never seen and lived many many centuries ago. Moreover we know nothing specific about him, the way he lived, the way he worked. Even more we don’t know if he ever existed and in what time. Nevertheless one can hardly imagine - as R. Westbrook already made clear - why a redactor should have changed a simple and clear law that had a Sitz  im Leben to one that did not make sense in practical life?  In other words, isn't it hard to imagine that he intended to change a simple and clear law into a difficult one? Moreover, isn’t he –or are they-  the careful redactor/writer/translater or compiler who left us not only this law but also, let's say, (parts of) the Book of the Convenant? If so, what then may have happened? ACBR A law that makes sense Let’s start from the thesis that the original law of Exod.xxi, 22ff once served a clear purpose in the social life in early biblical times, whether this law or parts of it already existed in Sumerian or Palestinian codes before it became part of the code of Exodus or not. This does not mean that the law in early biblical times had the same meaning as it had in Sumerian or Palestinan culture. A redactor can have copied/translated a text that got a meaning on his own in the culture of Semitic tribes. What condition must comply with a law that makes sense. First the law is embedded in ordinary life. This means there is a society of people that is organised and accepts rules. In one way or the other there is an administration, ruled by a pater familias, a clerical or spiritual leader. The ruler (and his comminity) has a way of live in his mind for his tribe or community and propagates values en rules to convince the other members to be able to live together.

 This means that the substance of a law is based on a conflict between accepted moral or religious values in a society in the one hand and a general or a specific practice in everyday  life on the other. Furthermore, a law that makes sense requires a clear formulation about the conflict between the values and the forbidden practice, so everyone can understand the meaning of the law and can accept the consequences.  The law may be easier accepted if everyone sees the benefit of the law  (one should hold in mind that there also is the possibility of a totalitarian despot who makes rules only for his own sake). A law may not be in contradiction with other laws based on the same moral standard. If it is true that most laws in the context of Exod.xxi, 22-25 stand these social conditions, and one agrees that the law in Exod.xxi 22-25 is a part of an organic whole  (J.te Lindert, 20) than we may suppose that the orginal law made sense in early biblical times. The actual wording of the text does not meet any of these criteria mentioned. The formulation is complicated, the wording is difficult, the substance contains inconsistencies and the overall law is contradicts the direct context. The question now is how can the conflict be solved between the (hypothetical) society that is assumed  and the actual wording of the law in Exod. Xxi 22-25.an oral tradition and the original wording of a text A possible solution may be that the redactor got a tablet, papyrus or scroll and was confronted with a disturbed and unreadable passage. He may only have been able to write down the words he recognized on the parts and pieces that were left. ACBR  Moreover: It was his duty to collect only the parts and pieces that were left, and he made the best of it, without any addition, because this was forbidden. There also was no reason to reconstruct the wording of the orginal law or Urgesetz because one knew in oral law the meaning of the original law. So although it was not his intention, he not only created a text of a law with a highly hypothetical situation in the protasis, but also with some contradictions and a strange range of punishments in the second alternative of the apodosis. This doesn’t imply that the meaning of the original law was lost and a new law with a totally different meaning came instead, at least not immediatly. (J. te Lindert 16-19) One should hold in mind that the oral law still existed, although the text had lost his specific wording. The oral tradition continued to exist, at least for the time the social practice existed. But the society developed further and social practice changed as did the oral law.  The text however offered the opportunity in next generations to give new interpretations to the text, because one knew that the wording of text was corrupted. In the meantime, however, one lost sight of the original wording and meaning of the legislative text.  As already been stated: A law is based on specific practice and general accepted moral (and/or religious) standard in a society. The meaning of a law changes when a moral standard changes or when views or knowledge is rendered out of date by recent new insights or developments. Now the question is why the redactor did not make use of the oral tradition and reconstructed the original laws. The first possibility – as already suggested- is that it was simply forbidden to change the text. A second possibillity, he could not, because oral tradition around the text was changed and grown. So the new law would only reflect one part of the new oral tradition. Or he had to insert several new laws, but a serious infringement of the text was not permissible. In the present authors mind, the redactor has intentionally not changed the wording of the law, not only because it was forbidden, but also to give scope to the oral tradition.  So lets go on with our inquiry. What is left? 

Context of Exod xxi: 22-25 Let us pay attention to the context of Exod.xxi, 22-25. From the laws in the context we not only get information about the phrasing but also about the contents. It may be expected - as stated above - that the phrasing had much in common with the other laws in the context of the same code. Furthermore V.Wagner (J.te Lindert, 18-20) convincingly explained that the laws in the Book of the Convenant are systematically built up around a theme. This means that the laws in the vv. 22-25, just as the laws in the vv12-36, are related to the protection of human integrity. If Wagner's thesis is also true for the smaller context, then the passage in Exod.xxi, 22-25 perhaps deals with the human integrity of slaves, because the preceding law (vss.20-21) and the law following it (vss26-27) deal with human integrity and slavery.

The text of Exod 21: 22-25 contains two laws: Another point that has to be taken into account is the fact that in the laws in the same context the protases contain clear descriptions of imaginable situations. The protasis in Exod.xxi, 22 however is highly questionable. The protasis tells us about fighting men that hurt a pregnant woman. The text seems to suggest that more men hit her. Further on we can only guess about the relationship between the men and the woman. Is she the wife of one of them? If so, why is nothing said about the pregnant woman's intention. ACBR Does she for instance share her man, father or brother, or is she a trespasser? If so, why did not she take care of herself? All this leads to a more general question: Is the description of the situation in the protasis probable? Is it presumable that a law is needed for a woman pregnant of twins involved in a brawl between several men? This means that women pregnant of twins are not occasionally but regularly involved in a struggle between men and are hurt in such a way that they miscarry or give birth to their children? ACBR To the present writer's mind, it is difficult to imagine that Jewish men fought regularly and involved a passing pregnant woman in their brawl. A brawl between men will have taken place regularly, no doubt about that, but it is hard to imagine that women of twins were regarualy involved. In everyday life such situations are avoided. This is a natural reaction for everyone and especially for pregnant women, because they are conscious of their vulnerability and do not want to put their child to danger. So a law of this kind was not necessary, or better: a law of this kind probably never existed, because a non existing incident does not require a law. {/AC} {AC} S.E. Loewenstamm may well be right that the redactor in that situation combined passages of two laws into one. It seems that the phrasing of the protasis is a mixture of two laws. The first words of the protasis of Exod.xxi,22 are very similar to Exod.xxi,18. May be this protasis was once the beginning of a rule about a quarrel between slaves that didn't hit a pregnant woman but each other. ACBR Possibly, this law ended with the lex talionis in the verses 24-25. Because slaves could not pay the doctor's bill in the way that free men are required in the law in Exod.xxi, 18-19. This law may be known in oral law (or may already have been in disuse and forgotten) by the time the compiler rewrote the Exodus scroll because the lex talionis was no longer interpreted literally in Jewish society. 

The orginal law, das Urgesetz Now we come to a part of the second law. This part tells us about a pregnant woman who gives birth to her children. The first alternative in the apodosis mentions that if it is not a fatal injury, the perpetrator has to pay whatever the woman's husband lays upon him and he (the actor) shall give it to the judges. But when she dies, you shall give life for life.  To start with. However the protasis is not complete, it discribes is a clear situation, at least one can imagine a situation like this. From the apodosis one can conclude that something must have happened with the woman, although it is not mentioned in the protasis. This is the part that is disturbed –and missing-  in the tablet, papyrus or scroll.  Which particular social situations or circumstances did this law refer to? Who is the man that hurts a pregnant woman, what are his intentions? From the text, it becomes clear that only one man is punished. He has to pay a fine. This phrase implies that there is only one perpetrator that gave the woman a blow, and not two or more as is suggested in the first part of the protasis. The fact that had to pay a fine, implies that he wasn’t a slave. Slaves earned no money.

Gathering from the protasis in the previous law it is not so difficult to imagine the situation in the missing protasis. In the forgoing law the male-slave is the subject. So it seems likely that in this law the female slave is the subject. This means that the protasis of the original law started with a phrase something like: "And if a man strikes his pregnant female slave". If this is true, it is not so difficult to to find out the intention of 'our' law. ACBR A general law to protect the fetus against external injury was not necessary in biblical times.  The woman protected the fetus. The pregnant female slave, however, needed protection. This law gave her protection against her master (or maybe more important: it gave her protection against het mistress). Her master had to act carefully when the female slave was pregnant. If his punishments or whatever sanctions caused a premature birth, he had to pay a fine. But when the punishment resulted in the female slave's death the master was sentenced to death ACBR in the same way as he was sentenced to death when he had killed a male slave (Exod.xxi, 21). This seems a reasonable solution for the wording of the text. But is there a Sitz im Leben, is there a social or cultural basis for such a law?  It may be, from biblical stories, rules and laws one knows about the treatment of slaves in the house. Also of the right of get and have offspring. In this way it is possible that there was a Sitz im Leben. But in early times there was also an other oral tradition that takes  attention: birth regulation.

A Greek translation A veil of this tradition ons finds in the LXX translation of the law. In the Greek translation of Exod.xxi, 22-25 the hand of the translator is clearly visible. He removes several inconsistencies and solves a number of difficulties. In the LXX we read about two men instead of men that are fighting. Further, the translator changed the plural children into the singular child etc. In this way he created a readable text. Keeping our thesis about the oral tradition in mind, he leaves us with a practical problem. ACBR The first words of vs.22 are changed in a strange protasis. If the translator was familair with that oral tradition why didn't he follow that oral tradition and changed the protasis completely as he did with other parts of the text. It seems that the LXX-translator intended to continue this vagueness in the protasis – and so give the opportunity to read in much different situations- to protect not only the pregnant female slave, but also the pregnant woman in general. Therefore, he closely followed the Hebrew reading. ACBR The pregnant woman in Hellenistic culture needed to be protectioned, because in this culture women were often ordered to use "medicine", in Greek pharmakeia, in Latin veneficium. In both languages the meaning of this term is "magic" or "drugs". The drug that is meant here is a 'potion of sterility' used to generate an abortion. This practice of birth control, common in the Hellenistic cultures, was forbidden for Jews. Their mitzvah was increase and multiply. {/AC}

The chances in the protasis and the apodosis in the LXX reading  It is in some way or the other remarkable that the LXX-translator changed the wording of the text significantly. Instead of "no fatal injury" in the first alternative for the consequences the text reads "and when it is not formed". In the second alternative, it says "And if it is formed" instead of "And if it is fatal injury". This is obviously not a matter of misinterpretation or mistranslation as is suggested by some scholars. It is far more likely that the translator makes an existing oral law specific and by doing so he followed a new accepted theory about the development of the embryo. At the time that the translator did his work a new theory about the development of the fetus in the womb was introduced. Aristotle was one of the first philosophers to deny that the fetus was a part of the woman, without a life of his own, as others before him had believed. 

Aristotle was convinced that the embryo was formed by the 'matter' of the female and the 'form' of the male. The 'form' creates a complete embryo out of the 'matter'. He also learned that the fetus was alive as soon as it was completely formed, or as Philo later put it: "already shaped and all the limbs have their proper qualities and places in the system". This theory was soon accepted and influenced the idea of the moral status of the embryo. The result of this new theory is presented in the LXX version of Exod.xxi 22-23: if one causes an abortion of an embryo that is unformed, a fine has to be paid. But If one has caused an abortion of a formed fetus, one is guilty of murder. ACBR Later commentaries: In their commentaries, Philo and Josephus closely follow the LXX-reading. However both are aware that the protasis does not reflect a realistic situation and both freely interpolate an actual situation into it. Philo interprets the first two verses as a law against abortion and Josephus does the same. The lex talionis in the vv. 24-25 is not regarded as a part of the law and has no influence on the interpretation of the vv. 22-23 by Philo. The aberatio ictus, the missing blow In tannaitic exegesis the Hebrew reading is used. The last two verses (vss. 24-25) have no influence on the interpretation of the law of the pregnant woman either. Their interpretation of the first verses is interesting. The tannaim used the wording of the existing law in the discussion to legitimate therapeutic abortion. In the discussion about the function of Exod.xxi, 22 in the Mekhilta d'Rabbi Ishmael a variant of the 'pursuer-argument' was read into the protasis of Exod. xxi, 22, the aberratio ictus. This is a situation in which person A wanted to hit B, but missed and struck C. It could also be a situation in which A wanted to hit B and not only struck B, but also C.  In tannaitic exegesis the aberratio ictus is introduced in a special setting of a pregnant woman in need of a therapeutic abortion. The woman is not in danger of fighting men, but of her premature pregnancy. So, in this situation, the physician is the onlooker and the illness caused by her pregnancy is the pursuer. The physician (A) saves the woman (B) from her pursuer (C), but he kills the fetus (D) too. 

Conclusion: Whatever the exact wording and meaning of the original law of Exod. xxi, 22-23 once was is not complete clear. The original wording of the law is lost and the meaning of the law was preserved in an oral tradition. One realized that the text was corrupted en the original law protected pregnant women (slaves) in general. Nevertheles the law had a meaning in social life because of a great oral tradition that is connected with it. Moreover, it has been demonstrated that translations and commentaries show a clear development in the meaning of the law. Actual situations are freely interpolated in the protasis. Later on this text was an instrument for law-givers to protect the pregnant woman in several cultures and in different situations. ACBR Does this imply that searching for the original meaning is a waste of time? No, to the present writers mind this makes sense. Searching for the original law implies studying the origins of a development that in its turn brings to light the methods and principles that were used. This study shows that the law was regarded as a changeable law, a law that could make sense in actual everyday life. The ‘clumsy’ wording of the law may be the reason hat this law in different times and different situation was influenced by cultural developments. Gradually the meaning of the law changed from a law that protected pregnant female slaves to a law that protected pregnant women in general, specially in the diaspora. Influenced by socio-, philosophical changes and last but not least by medical development this law became the locus classicus for the protection of the pregnant woman and her unborn child. 

 

Dr. J.G. te Lindert, august 2015