Literary Solutions to Legal Problems: The Contribution of Exodus 2.13–14 to Exodus 21.22

Abstract

This article proposes that Moses' encounter with the fighting Hebrews in Exod. 2.13–14 sheds light on the hypothetical case of the pregnant woman who is struck by men also engaged in a fist fight (Exod. 21.22–23). Specifically, Exod. 2.13–14 explains why singular verbs are used to describe the punishment (‭שנצי‬, ‭ותנ‬) when two or more men were actually responsible for the battery (‭ובּגנ‬). In the earlier episode, Moses rebukes the ‘guilty one’, presumably because he was the instigator of the fight. Likewise, if an integrative reading is called for, the penalty for the battery in 21.22 is placed on the shoulders of the instigator alone, which explains the use of the singular forms ‭שנצי‬ and ‭ותנ‬. Exod. 2.13–14 may indirectly resolve other tensions created by this law as well.

Keywords

Literary foil physical altercation pregnant woman Exod. 2.13–14 Exod. 21.22–23 Deut. 25.11–12

It has long been recognized that the Masoretic text of Exod. 21.22–25, which deals with an assault against a pregnant woman, is beset with a spate of inconsistencies, lacunae, and interpretive conundrums. These difficulties have most often been addressed through diachronic and comparative Semitic approaches, with little effort to integrate the passage within the larger narrative of Exodus or the Pentateuch.¹ Nevertheless, a growing appreciation of the cohesiveness within the Pentateuchal law codes and the interdependence of law and narrative invites the application of a literary approach upon the difficulties posed by legal texts.² Moreover, it is my position that some of the problems encountered in Exod. 21.22–23 are hospitable to synchronic solutions and call for a parallel reading of certain passages in order to disclose more fully their meaning.

One of those difficulties involves what appears to be the unjust imputation of guilt on only one party involved in the scuffle described in 21.22, ‘And when men fight and they strike a pregnant woman so that her children come out, but there is no harm, he shall surely be fined as the woman's husband imposes upon him, and he shall pay through judges’.³ The passage indicates that a plurality of men (probably two) strike the woman and yet for some reason only one of them is fined. This evokes the natural question: Why is the penalty not imposed on all/both of them, since, after all, the woman was hit by more than one man (‭ובּגנ‬)?⁴ This article hopes to address this as well as related tensions by recognizing and exploiting intratextual relationships within the Pentateuch.

Exodus 21.22, ‘They strike a pregnant woman…, he shall surely be fined'

Grammatical Solutions

Apart from literary-critical explanations, the discrepancy between the plural (‘they’) in the protasis and the singular (‘he’) in the apodosis may be accounted for by positing an indefinite (active), plural verb as a surrogate for the passive voice: ‘they strike a pregnant woman’ simply means that a pregnant woman is struck.⁵ Even so, Exod. 21.22 does not match the specimens of the indefinite plural normally adduced (Ezek. 32.25; Ps. 63.11; Job 4.19; 6.2; 18.18; 19.26; 34.20; Prov. 2.22; 9.11).⁶ In each of these instances the subject of the plural active verb requires the indefinite, ‘they’, since it has no proximate antecedent in the text. The plural subject of ‭ובּגנ‬ (Exod. 21.22), however, is more naturally traced to the men who are fighting in the immediately preceding clause (‭וצוי-יכו‬) and therefore resists identification with the indefinite plural.⁷

Alternatively, this could be an example of an indefinite construction unrelated to the passive voice, as in Eccl. 4.10: ‭םיקי‬ ‭דחאח‬ ‭ולףי-םא‬ ‭יכ‬ ‭ודכח-תא‬, ‘For if one of them falls, the other (‭דחאח‬) can lift up his friend’.⁸ If the plural construction in Exod. 21.22 is translated according to this model, it would read: ‘and either one of them strikes a pregnant woman’.⁹

J.M. Sprinkle proposes another, more complicated, grammatical solution: the plural emphasizes ‘the accidental nature of the injury’ by communicating that the men were fighting with each other rather than the woman. The singular in the apodosis is an indefinite singular; ‘someone’ pays, either the most negligent member of the brawl or a representative of the group.¹⁰

A Literary Solution

Whereas appeals to grammatical nuances can be considered plausible, a relatively straightforward reading of the text combined with a literary explanation may prove to be more cogent. That is, the problem can be resolved if we propose a literary foil and compare this situation to an earlier one where men also fought (Exod. 2.13–14):

And he went out the next day and behold, two Hebrews were fighting; and he said to the guilty one, ‘Why do you strike your fellow?’ And he said, ‘Who installed you as prince and judge over us? Do you intend to kill me, as you killed the Egyptian?’ Then Moses was afraid and thought, ‘Surely the matter is known’.

The foil is triggered by four parallels, which in isolation may not be impressive, but when combined prove to be provocative, if not persuasive. First, both situations entail similar participants: Hebrew men fighting (assumed in 21.22) and the involvement of a third party (Moses and the pregnant woman). Second, and more compelling, is the fact that both incidents are immediately preceded by the same two themes, contained within the framework of a brief scene or legal case—masters striking their slaves and penalties/retaliation for their abusive behavior. Compare the following texts, where the parallels speak for themselves:

Exod. 2.11–12:

Now it came about in those days, when Moses had grown up, that he went out to his kinsmen and looked on their burdens. And he saw an Egyptian beating a Hebrew, one of his kinsmen. So he looked here and there, and when he saw that no one was around, he struck down the Egyptian and hid him in the sand.¹¹

Exod. 21.20–21:

When a man strikes his male or female slave with a rod and he dies under his hand, he shall surely be avenged. Nevertheless, if he survives for a day or two, he shall not be avenged; for he is his money.

Third, the foil is invoked by the Leitwort ‭חצנ‬ (niphal), ‘struggle’, which surfaces in both texts and is uncommon otherwise.¹² In fact, the same conspicuous verb has already initiated comparisons between Exod. 21.22 and Deut. 25.11–12, which (Deut. 25.11–12) some consider to be an oblique commentary on Exod. 21.22 (see below). Furthermore, the Leitwort strategy, within literary foil, has been documented elsewhere in Exodus.¹³

The fourth connection between the passages is also linked to the thesis of the present study: responsibility in the respective fights is a singular, rather than plural, affair. That is, Exod. 2.13–14 makes a distinction between the guilty party (‭צאנ‬)—presumably the initiator—and the other who was apparently not guilty, or as guilty:¹⁴ ‘And he went out the next day and behold, two Hebrews were fighting; and he said to the guilty one, ‘Why do you strike your fellow?”’ (2.13). It is in fact the party at fault that—in typical bully fashion—accuses Moses of meddling: ‘Who installed you as prince and judge over us? Do you intend to kill me, as you killed the Egyptian?’ (2.14). According to B.S. Childs, ‘The offending Hebrew rudely rejects the mediation of Moses, and challenges his authority to play this role. The second question referring to the killing of the Egyptian does not arise out of a genuine self fear but is a cynical means of warding off the approach and turning it into a threat.’¹⁵

If we then interpret the later law by the earlier incident, the shift from the plural to the singular makes perfectly good sense;¹⁶ that is, if the proposed analogue and its significance are valid, we are expected to assume that one of the parties in the fight of Exod. 21.22 is more or less innocent and simply defending himself against the instigator.¹⁷ Ergo, the plural ‭וגנ‬, ‘they strike’, would be comprehensive and refer to either one, or both men, striking the woman, while the singulars, ‘he shall surely be fined’ and ‘he shall pay through judges’, point exclusively to the blameworthy individual—the one who initiated the fight.¹⁸ The actual assailant is unimportant and would, in any case, be difficult to identify under these conditions. Even if the innocent man ended up actually striking the woman, he cannot be faulted since he was simply warding off his opponent.¹⁹ Therefore, we can conjecture that the bully who started the altercation is responsible for all of the consequences.

Why Was She There?

Exodus 2.13–14 also answers another question sometimes raised by commentators: How did the woman get into such a situation in the first place?²⁰ For instance, S.E. Loewenstamm complains, ‘At least we might expect some explanation how it came about that a brawl between men ended with an assault on a pregnant woman. Such badly needed clarification, however, is conspicuously absent in the law under discussion…’²¹

Again, an integrated reading yields satisfying results. Perhaps the ancient author takes the position that pious individuals would do exactly as Moses had done—attempt to stop the fight.²² Exodus 2.13–14 emphasizes how dishonorable such fighting is, and another comparable text within the Pentateuch, Lev. 24.10–11, demonstrates how such mischief can result in blasphemy:

There came out among the Israelites one whose mother was Israelite and whose father was Egyptian. And a fight broke out (‭וצניו‬) in the camp between that half-Israelite and a certain Israelite. The son of the Israelite woman pronounced the Name in blasphemy, and he was brought to Moses—now his mother's name was Shelomith daughter of Dibri of the tribe of Dan. (njps)

Therefore, any action to interfere with brawls would be considered laudable, if not heroic.

Deuteronomy 25.11–12 underscores the same need for intervention, but involves an example that takes matters too far: ‘If men are fighting (‭ודהי…וצני‬), a man and his countryman, and the wife of one of them approaches to rescue her husband from the hand of his attacker, and she puts out her hand and grabs his genitals, then you shall cut off her hand; you shall have no pity’.²³

In this situation two men wrestle, and the wife of the losing party seizes the genitals of her husband's opponent, evidently to incapacitate him with excruciating pain.²⁴ Here, the purpose of the interference is to influence the outcome of the fight in favor of one of the combatants; it is not simply to stop the fight. It, moreover, may involve an injury to the opponent's reproductive system—along with other disadvantages (Deut. 23.2)—thus invoking another parallel with Exod. 21.22–23: in both situations reproductive harm can be the result of the culpable actions and decisions of others.

Some, however, imagine a stronger relationship between the two scenes, to the effect that the pregnant woman in Exod. 21.22 is the wife of one of the combatants; the woman, moreover, attempts to assist her husband, but is herself injured.²⁵ Nevertheless, if this was the situation in Exod. 21.22, it is doubtful that the woman would escape judicial reprisal, especially if Deut. 25.11–12 is to be considered our guide.²⁶

An intertextual reading of the Old Testament also supports the position that such clashes need to be arrested immediately. 2 Samuel 14.5–7 records the dilemma of the wise woman of Tekoa who brings her complaint to David:

So the king asked her, ‘What is your problem?’ She replied, ‘I am indeed a widow, for my husband has died. And your maidservant had two sons, and the two of them fought (‭וצנינ‬) in the field, and there was no one to separate them (‭ליצמ‬). So one struck the other (‭וכנינ‬) and killed him. Now behold, the whole family has risen up against your maidservant and said, ‘Hand over the one who struck his brother, that we may put him to death for the life of his brother whom he killed; so we will eliminate the heir as well”. Thus they will extinguish my remaining coal, leaving my husband neither name nor remnant on the face of the earth.’

Fabricated account notwithstanding, the woman realistically concludes that a mediator could have prevented the death of her son and the personal tribulations that followed: ‘there was no one to separate them’. Parallels have been drawn between this story and that of Cain and Abel (Gen. 4.1–16),²⁷ but the Leitwörter ‭חצנ‬ and ‭חכנ‬, and the absence of a deliverer also recall the episode in Exod. 2.13–14. And although interesting literary relationships may exist between 2 Sam. 14.5–7 and the skirmishes recorded in the Pentateuch, what matters for our purposes is that 2 Sam. 14.5–7 reinforces the point that terrible things happen when fights are allowed to continue.

Intention

Presupposing a woman who was attempting to break up the fight can also indirectly explain another difficulty in the text of Exod. 21.22–23. E. van Staalduine-Sulman explains:

The greatest external inconsistency concerning the case of the pregnant woman is the question of intention. The wording of the brawl suggests that the woman was hit unintentionally. According to 21:12–14 the perpetrator was allowed to flee to a place of asylum. Yet the man who hit the pregnant woman was punished, even ‘life for life’.²⁸

D. Daube: Intentional Attack

D. Daube resolved the tension by asserting that the battery was intentional, like the deliberate intervention of the woman in Deut. 25.11–12:²⁹

The situation contemplated seems to be that one of the two men fighting hurts his enemy's wife in a most vicious manner. An analogous situation is dealt with in Deuteronomy xxv. 11 f. There also two men fight, and the wife of one of them interferes, seizing her husband's enemy by his private parts… At all events, there is no doubt that the crime of Deuteronomy xxv. 11 f. is committed intentionally, and I think that of Exodus xxi. 22 ff., too, must be regarded as a deliberate, malicious attack.³⁰

He further insisted that when ‭ךּגנ‬ governs an accusative it always conveys an intentional assault.³¹

As I have maintained, however, Exod. 21.22 strikes a better parallel with Exod. 2.13–14 than with Deut. 25.11–12—a Sitz im Leben that would create additional difficulties were it imposed on Exod. 21.22–23.³² Even if Exod. 21.22–23 is informed by Deut. 25.11–12, there is no pressing reason to connect the intention of the woman in Deut. 25.11–12 with the motive of the men who strike the pregnant woman in Exod. 21.22, as Daube seems to feel is necessary.³³ Furthermore, it is not clear why the assailant in Exod. 21.22 would deliberately attack the woman. Did Daube have in mind a situation where the woman in Exod. 21.22 attempts physically to deter her husband's opponent (as in Deut. 25.11–12), and in defense her husband's opponent strikes her? If so, how could Daube regard the man's actions as a ‘malicious attack’? In any case, a more precise explanation of the analogy would have been helpful.

The scenario is all the more problematic when we recall that the plural of ‭ךּגנ‬ is used, which requires motivations for both men—one of whom is presumably the woman's husband!—if Daube's definition of ‭ךּגנ‬, as intentional battery, is to be consistently applied. Daube, however, does not address this complication, even where he remarks that only ‘one of them hurts the woman with child’.³⁴

Lastly, some question whether Exod. 21.35, the case of the bovicidal ox, supports Daube's understanding of ‭ךּגנ‬, as he claims, or undermines it: ‘And if a man's ox strikes (‭ךּגנ‬) the ox of his neighbor and it dies, they shall sell the living ox and divide both its price and the dead ox equally’. According to Daube, the ox strikes (kicks) the other deliberately, thus maintaining the purity of the ‭ךּגנ‬-plus-accusative construction.³⁵ Jackson, however, concludes that with an ox as its subject ‭ךּגנ‬ must connote a nondeliberate act.³⁶

Here I think Daube has a stronger point, even if it does not ultimately salvage his proposal. Whereas an accidental stab from an ox's horns could easily kill a man, it is unlikely that anything but a deliberate and violent attack would kill another animal the size of an ox. And it is certainly legitimate to attribute the intention to strike, injure, and kill to an animal, without, however, imputing premeditation, calculation, or moral agency to the same.

In the final analysis, however, Daube's remedy to the problem of capital punishment for the offense in Exod. 21.22–23 fails to be persuasive. Whatever sense of intentionality may be manifest in the syntagmatic combination of ‭ךּגנ‬ and the accusative, it is not at all obvious that this nuance is salient or decisive in the type of punishment required in Exod. 21.22–23. Lexical choices can involve a number of factors—often competing—where decisions sometimes require compromise and where nuances can be adjusted (promoted or demoted) by context.³⁷ I think Sprinkle's assessment encapsulates this idea better than any that I have encountered: ‘the men, while intentionally fighting each other, have flown out of control and unintentionally hit the woman as an innocent bystander’.³⁸

Transferred Intent

The preoccupation with intentions has resulted in another solution, this time in the form of a familiar legal principle known as the doctrine of transferred intent: A intends to hit B, but hits C, an innocent bystander, instead (aberratio ictus); A is charged with intentionally hitting C.³⁹ In similar fashion, S.M. Paul asserts that the intent to do harm is all that matters and that ‘the assailant is held directly responsible for all ensuing consequences, including those which might befall an innocent bystander’.⁴⁰

Although this explanation—which dates back to rabbinic literature—is certainly plausible, it runs the risk of being anachronistic and is unnecessary if a comparative analysis, both within and without the Covenant Code, is permitted.⁴¹

We must first suppose that the instigator of the fight was conscious of the woman, as well as her condition.⁴² (It stands to reason that the more advanced the pregnancy, the greater the awareness and the greater the culpability.⁴³) If he then refused to withdraw from the fight and one of the men struck her, with catastrophic results, the instigator would be guilty of something like negligent homicide, which the code considers a capital crime.⁴⁴ In other words, the battery becomes comparable to the negligent homicide of the ox owner, who knew that his ox was prone to goring, but refused to confine it safely (21.29).⁴⁵ His penalty is also capital. Likewise, the initiator of the fight in Exod. 21.22 should have realized that his actions were a threat to the woman and her fetus(es) and withdrawn.

Necessary for the success of this proposal is simply a knowledge of the pregnant woman on the part of the instigator. Although this recognition could occur in a variety of situations,⁴⁶ it is more likely if the overall template of 2.13–14 is presupposed: the woman attempts to speak up and stop the fight, as Moses had. And this in turn would make the attacker more aware and more obligated to cease from his aggression. If this much is accepted, then the capital punishment required for the ‭ןוםא‬ (21.23) is of a piece with the talion against the negligent ox owner in 21.29.⁴⁷

A personal anecdote from Staalduine-Sulman—the author of a recent article on this topic herself—may assist in comprehending the culpability of the agent(s) in such situations, even if the collision was not intentional:

During pregnancy in 1999 I suddenly became involved in a biblical scene. I once walked home and encountered two young students in a brawl. It was not clear whether they were serious or not, but I wanted to be on the safe side and tried to get out of the way. They, however, did not take notice. Fighting and yelling they came closer and hit me in the belly. No harm was done, except for a bruise, but I can still feel the indignation about their behaviour. Although the blow was not premeditated, not even intended, they should have stopped in the direct presence of a pregnant woman who was unable to smoothly avoid them at that moment.⁴⁸

Conclusion

This study has argued that the difficulty encountered by the shift from the plural to the singular verb in Exod. 21.22 can be resolved by applying the circumstances of an earlier conflict (2.13–14) to the hypothetical case law. It was further proposed that co-opting the background of Exod. 2.13–14 answers additional questions posed by scholars, namely, the reason for the woman's presence at the fight, and why capital punishment was required for what was apparently an unintentional battery. In each case it was maintained that reading Exod. 21.22–23 through the lens of 2.13–14 offers attractive solutions, ones which are in harmony with the main thesis of this article: one individual is punished (‭ןחנ‬…‭שנצ‬) rather than two (‭ובּגנ‬) because he is the one who presumably began the fight and is therefore liable for all the damages. (The law is easily adaptable, if in an actual tort both men were equally responsible for starting the fight, or more than two men were involved.) An incidental asset of this proposal is that it offers a measure of hermeneutical flexibility; the solutions above are compatible with both positions on the meaning of ‭חידלדואצי‬ (Exod. 21.22), as either miscarriage, or premature birth.

Footnotes

1.

See B.L. Eichler, ‘Exodus 21:22–25 Revisited: Methodological Considerations’, in C. Cohen et al. (eds.), Birkat Shalom: Studies in the Bible, Ancient Near Eastern Literature, and Postbiblical Judaism Presented to Shalom M. Paul on the Occasion of his Seventieth Birthday (Winona Lake, IN: Eisenbrauns, 2008), pp. 11–29 (12). For a notable exception see E. van Staalduine-Sulman, ‘Between Legislative and Linguistic Parallels: Exodus 21:22–25 in its Context’, in R. Roukema (ed.), The Interpretation of Exodus: Studies in Honor of Cornelis Houtman (CBET, 44; Leuven: Peeters, 2006), pp. 207–24.

2.

See J.P. Burnside, ‘Exodus and Asylum: Uncovering the Relationship between Biblical Law and Narrative’, JSOT 34 (2010), pp. 243–66; Eichler, ‘Exodus 21:22–25 Revisited’, pp. 11–29; A. Bartor, ‘The Representation of Speech in the Casuistic Laws of the Pentateuch: The Phenomenon of Combined Discourse’, JBL 126 (2007), pp. 231–49; J.M. Sprinkle, ‘Law and Narrative in Exodus 19–24’, JETS 47 (2004), pp. 235–52; A. Berlin, ‘Numinous Nomos: On the Relationship between Narrative and Law’, in S.M. Olyan and R.C. Culley (eds.), ‘A Wise and Discerning Mind’: Essays in Honor of Burke O. Long (BJS, 325; Providence: Brown Judaic Studies, 2000), pp. 25–31; R.R. Hutton, ‘Narrative in Leviticus: The Case of the Blaspheming Son (Lev 24, 10–23)’, ZABR 3 (1997), pp. 145–63; J. H. Sailhamer, The Pentateuch as Narrative: A Biblical-Theological Commentary (Grand Rapids: Zondervan, 1992); C.M. Carmichael, ‘Biblical Laws of Talion’, HAR 9 (1985), pp. 107–26.

3.

Unless otherwise indicated, all translations are my own. Although hotly disputed, I have adopted the traditional translation of ‭םיללבּכ‬ as ‘through judges’. The major alternatives are inconsequential for the restricted purposes of this article and are not entirely incompatible with each other in the first place, even as A. Berlin, one of the detractors, admits: ‘In fact, the traditional interpretation, Speiser's, Westbrook's, and my own are not so far apart as they might seem. They share a certain semantic intersection: the (legal) assessment, or assessor, of responsibility’ (‘On the Meaning of pll in the Bible’, RB 96 [1989], pp. 345–51 [347])

4.

See, e.g., B.S. Jackson, Wisdom-Laws: A Study of the Mishpatim of Exodus 21:1–22:16 (Oxford: Oxford University Press, 2006), p. 210; N.L. Collins, ‘Notes on the Text of Exodus XXI 22’, VT 3 (1993), pp. 289–301 (290, 296–99); R. Rothenbusch, Die kasuistische Rechtssammlung im ‘Bundesbuch’ (Ex 21, 2–11. 18–22, 16) und ihr literarischer Kontext in Licht altorientalischer Parallelen (AOAT, 259; Münster: Ugarit-Verlag, 2000), pp. 291–93; J.M. Sprinkle, ‘The Interpretation of Exodus 21:22–25 (Lex Talionis) and Abortion’, WTJ 55 (1993), pp. 233–53 (234–35, 251); L. Schwienhorst-Schönberger, Das Bundesbuch (Ex 20,22–23,33): Studien zu seiner Entstehung und Theologie (BZAW, 188; Berlin: W. de Gruyter, 1990), p. 82; F. Crüsemann, ‘“Auge um Auge…” (Ex 21, 24f). Zum sozialgeschichtlichen Sinn des Talionsgesetzes im Bundesbuch’, ET 47 (1987), pp. 411–26 (413); S.E. Loewenstamm, ‘Exodus XXI 22–25’, VT 27 (1977), pp. 352–60 (353, 357); R. Westbrook, ‘Lex Talionis and Exodus 21, 22–25’, RB 93 (1986), pp. 52–69 (52–53). Westbrook's solution involves defining ‭ןוםא‬ as ‘damage caused by an unknown perpetrator’. For a critique see Sprinkle, ‘Exodus 21:22–25’, pp. 244–45.

5.

So M.G. Kline, ‘Lex Talionis and the Human Fetus’, JETS 20 (1977), pp. 193–201 (198). For literary-critical approaches to this passage see Jackson, Wisdom-Laws, pp. 220–21, 225; Loewenstamm, ‘Exodus XXI 22–25’, p. 357; Collins, ‘Exodus XXI 22’, pp. 296–301; Rothenbusch, Die kasuistische Rechtssammlung, pp. 291–93.

6.

GKC, p. 460.

7.

So Sprinkle, ‘Exodus 21:22–25’, p. 251 n. 51.

8.

T. Longman III, The Book of Ecclesiastes (NICOT; Grand Rapids: Zondervan, 1998), p. 141; R.E. Murphy, Ecclesiastes (WBC, 23A; Waco, TX: Word Books, 1992), p. 40; C.L. Seow, Ecclesiastes: A New Translation with Introduction and Commentary (AB, 18C; New York: Doubleday, 1997), p. 182; J.L. Crenshaw, Ecclesiastes: A Commentary (OTL; Philadelphia: Westminster Press, 1987), p. 111; GKC, p. 400.

9.

So Westbrook, ‘Lex Talionis and Exodus 21’, p. 56; W.H.C. Propp, Exodus 19–40 (AB, 2A; New York: Doubleday, 2006), p. 221.

10.

Sprinkle, ‘Exodus 21:22–25’, p. 251.

11.

Although the two men in 2.11 are called nothing more than a ‘Hebrew’ and an ‘Egyptian’, the presence of ‘he looked on their burdens’ at the beginning of the scene indicates that the incident occurs within the context of a master-slave relationship. So T.B. Dozeman, Commentary on Exodus (The Eerdmans Critical Commentary; Grand Rapids: Eerdmans, 2009), 87; J.H. Hertz (ed.), The Pentateuch and Haftorahs: Hebrew Text, English Translation and Commentary (London: Soncino Press, 1952), p. 211; U. Cassuto, A Commentary on the Book of Exodus (trans. I. Abrahams; Jerusalem: Magnes Press, 1967), p. 22.

12.

‭חצנ‬, niphal: Exod. 2.13; 21.22; Lev. 24.10; Deut. 25.11; 2 Sam. 14.6; hiphil: Num. 26.9 (2x); Ps. 60.2. BDB, p. 663.

13.

See J. Makujina, ‘Additional Considerations for Determining the Meaning of ‭ʿ‬anôt and ‭ʿ‬annôt in Exod. XXXII18’, VT 54 (2005), pp. 39–46 (43–45).

14.

So B.S. Childs, The Book of Exodus (OTL; Philadelphia: Westminster Press, 1974), pp. 30, 45; J.I. Durham, Exodus (WBC, 3; Waco, TX: Word Books, 1987), p. 19; V.P. Hamilton, Exodus: An Exegetical Commentary (Grand Rapids: Baker, 2011), p. 27; W.H.C. Propp, Exodus 1–18 (AB, 2; New York: Doubleday, 1999), pp. 164, 167; C. Houtman, Exodus, I (trans. S. Woudstra and J. Rebel; HCOT; Kampen: KOK, 1993), p. 302.

15.

Childs, Exodus, pp. 30–31. J. I. Durham, however, favors crediting the rebuff to both the men (contra Acts 7.27), on the basis of the phrase ‘over us’. Durham, Exodus, p. 19. But the verb reporting the reply of the combatants is singular (‭דמאיו‬), and the question is addressed directly to the guilty party. Finally, the object of ‘to kill’ is also singular—‘me’ (‭ינגדחל‬). Consequently, there is no need to presume that the response represents the sentiments of both men.

There is also an interesting and illuminating verbal parallel in Lk. 12.13–14, where Jesus questions a man who wants him to intervene in a fraternal dispute, ‘Man, who appointed me as judge or arbitrator over you?’ (12.14). Although the plural, ‘over you’ (ἐϕ’ ὑμᾰζ), is used, to encompass both the man and his brother, Jesus is exclusively addressing the request of the complaining brother.

16.

Presupposing Exod. 2.13–14 also suggests that only two men were involved in the fight in Exod. 21.22. So Collins, ‘Exodus XXI 22’, pp. 299–300.

17.

B. S. Jackson mentions this possibility only to reject it, preferring the option that the assailant could not be identified and was to be chosen by the husband to the best of his ability. B.S. Jackson, ‘The Problem of Exod. XXI 22–5 (Ius Talionis)’, VT 23 (1973), pp. 273–304 (287).

18.

On the comprehensive plural, see M.G. Kline (‘Lex Talionis and the Human Fetus’, p. 198), who entertains this option along with the indefinite, active plural as passive: ‘As for the plural form of the verb, this might be a generic plural to cover either of the brawlers (or perhaps both of them)…’

19.

So Jackson (‘The Problem of Exod. XXI 22–5’), p. 286: ‘The one who struck the first blow did so in hot blood, and the other acted in self-defence, and thus without ‘original intent to cause harm”’.

20.

J.R. Ziskind, ‘When Two Men Fight: Legal Implications of Brawling in the Ancient Near East’, RIDA 44 (1997), pp. 13–42 (28); Loewenstamm, ‘Exodus XXI 22–25’, p. 355; J. Van Seters, ‘Some Observations on the Lex Talionis in Exod 21:23–25’, in S. Beyerle et al. (eds.), Recht und Ethos im Alten Testament—Gestalt und Wirkung: Festschrift für Horst Seebass zum 65. Geburtstag (Neukirchener-Vluyn: Neukirchener Verlag, 1999), pp. 27–37 (30); J. Weingreen, ‘The Concepts of Retaliation and Compensation in Biblical Law’, Proceedings of the Royal Irish Academy 76 (1976), pp. 1–11 (5).

21.

Loewenstamm, ‘Exodus XXI 22–25’, p. 355.

22.

So Keil-Delitzsch and J. H. Hertz, though without recourse to Exod. 2.13–14. C.F. Keil and F. Delitzsch, Biblical Commentary on the Old Testament. II. Pentateuch (trans. J. Martin; Grand Rapids: Eerdmans, 1951), p. 134; Hertz, Pentateuch and Haftorahs, p. 309. C. Houtman also foresees possible intervention but references 2 Sam. 14.6 and Deut. 25.11 instead of Exod. 2.13–14. C. Houtman, Exodus: Chapters 20–40 (trans. S. Woudstra; HCOT; Leuven: Peeters, 2000), p. 161.

23.

Similarly, MAL A §8. Ziskind, ‘When Two Men Fight’, pp. 19–20.

24.

Contra a number of scholars who feel that she merely grabs his genitals, harmlessly, since the text fails to record that an injury was sustained—vis-à-vis MAL A §8, which does specify injury. See M. Weinfeld, Deuteronomy and the Deuteronomic School (Oxford: Clarendon Press, 1972), pp. 292–93; C. Pressler, The View of Women Found in the Deuteronomic Family Laws (BZAW, 216; Berlin: W. de Gruyter, 1993), pp. 74–77; C.M. Carmichael, The Laws of Deuteronomy (Ithaca, NY: Cornell University, 1974), p. 234; Ziskind, ‘When Two Men Fight’, pp. 19–20, 34–35; S.M. Paul, ‘Biblical Analogues to Middle Assyrian Law’, in E.B. Firmage et al. (eds.), Religion and Law: Biblical-Judaic and Islamic Perspectives (Winona Lake, IN: Eisenbrauns, 1990), pp. 335–39; J.T. Walsh, ‘“You shall cut off her…palm”? A Reexamination of Deuteronomy 25:11–12’, JSS 49 (2004), pp. 47–58; R.M. Davidson, Flame of Yahweh: Sexuality in the Old Testament (Peabody, MA: Hendrickson, 2007), pp. 476–80.

It is difficult, however, to picture such a woman wanting to seize the genitalia of her husband's attacker, without intending to injure them. Even if this happened to be her objective, what possibility is there that she could have achieved it? The delicate nature of these organs makes additional comments about incurred injury unnecessary. So L. Eslinger, ‘The Case of the Immodest Lady Wrestler in Deuteronomy XXV 11–12’, VT 31 (1981), pp. 269–81 (271–72).

25.

So Van Seters, ‘Some Observations’, pp. 30–31; Schwienhorst-Schönberger, Das Bundesbuch, pp. 112–13; Weingreen, ‘Retaliation and Compensation’, p. 5; D. Daube, Studies in Biblical Law (New York: KTAV, 1947), p. 108; W.H. Gispen, Exodus (trans. E. van der Maas; Bible Student's Commentary; Grand Rapids: Zondervan, 1982), p. 213. For older commentators holding the same position, see Schwienhorst-Schönberger, Das Bundesbuch, p. 113 n. 169.

26.

So Jackson, ‘The Problem of Exod. XXI 22–5’, p. 288 n. 3; Jackson, Wisdom-Laws, p. 234; Sprinkle, ‘Exodus 21:22–25’, pp. 236–37 n. 10.

27.

J. Blenkinsopp, ‘Theme and Motif in the Succession History (2 Sam. XI 2ff) and the Yahwist Corpus’, in Volume du Congrès, Genève 1965 (VTSup, 15: Leiden: E.J. Brill, 1966), pp. 44–57 (51–52).

28.

Staalduine-Sulman, ‘Exodus 21:22–25’, p. 217. Similarly, Sprinkle, ‘Exodus 21:22–25’, pp. 234, 236–37; S. Isser, ‘Two Traditions: The Law of Exodus 21:22–23 Revisited’, CBQ 52 (1990), pp. 30–45 (31); Ziskind, ‘When Two Men Fight’, p. 29; Cassuto, Exodus, p. 276; Jackson, ‘The Problem of Exod. XXI 22–5’, pp. 283–91; Jackson, Wisdom-Laws, p. 234; Eichler, ‘Exodus 21:22–25 Revisited’, pp. 11, 26–27; Loewenstamm, ‘Exodus XXI 22–25’, pp. 356–57. Although the recipient of the capital punishment for ‭ןוםא‬ in Exod. 21.23 is not specified, it is apparently the same individual (the instigator) who would be fined for the lesser infraction, ‭ןוםא‬ ‭חיוי‬ ‭אל‬ (21.22).

29.

Daube, Studies in Biblical Law, pp. 107–108. Daube's position is echoed by Carmichael, ‘Biblical Laws of Talion’, pp. 117–18 n. 17, and Walsh, “‘You shall cut off her…palm”’, p. 48.

30.

Daube, Studies in Biblical Law, p. 108.

31.

Daube, Studies in Biblical Law, pp. 107–108, 148–49.

32.

So Sprinkle, ‘Exodus 21:22–25’, pp. 236–37 n. 10; Jackson, ‘The Problem of Exod. XXI 22–5’, p. 288; Jackson, Wisdom-Laws, p. 234; S. Layton, ‘An Exegesis of Exodus 21:22–25 in Light of Ancient Near Eastern Law’ (ThM thesis, Dallas Theological Seminary, 1979), pp. 14–16. Earlier I admitted to points of contact between the two passages, which were, nevertheless, more restrained than those proposed by Daube.

33.

So Propp, Exodus 19–40, p. 221.

34.

Daube, Studies in Biblical Law, p. 107.

35.

Daube, Studies in Biblical Law, p. 107. Contra Daube, ‭ךּגנ‬ most likely refers to goring, as clarified by 21.36.

36.

Jackson, ‘The Problem of Exod. XXI 22–5’, p. 288; Jackson, Wisdom-Laws, p. 280 n. 125. So Layton, ‘Exegesis of Exodus 21:22–25’, pp. 14–15. Similarly, Staalduine-Sulman, ‘Exodus 21:22–25’, pp. 217 and n. 42, though without reference to Daube.

37.

See M. Silva, Biblical Words and their Meaning: An Introduction to Lexical Semantics (Grand Rapids: Zondervan, 1983), pp. 161–63.

38.

Sprinkle, ‘Exodus 21:22–25’, p. 237. So Houtman, Exodus 20–40, pp. 165, 169; S. Lafont, ‘Ancient Near Eastern Laws: Continuity and Pluralism’, in B.M. Levinson (ed.), Theory and Method in Biblical and Cuneiform Law: Revision, Interpolation, and Development (Sheffield: Sheffield Academic Press, 1994), pp. 112–13; A. Schenker, ‘Die Analyse der Intentionalität im Bundesbuch (Ex 21–23)’, ZABR 4 (1998), pp. 209–17 (213).

39.

Layton, ‘Exegesis of Exodus 21:22–25’, p. 13; Loewenstamm, ‘Exodus XXI 22–25’, p. 357; Isser, ‘Two Traditions’, p. 34; Jackson, ‘The Problem of Exod. XXI 22–5’, pp. 285–86; Jackson, Wisdom-Laws, pp. 234–35.

40.

S.M. Paul, Studies in the Book of the Covenant in the Light of Cuneiform and Biblical Law (VTSup, 18; Leiden: Brill, 1970), p. 74.

41.

For rabbinic sources, see Mek. on Exod. 21.22; m. B. Qam. 5.4; b. Sanh. 79a; Rashi on Exod. 21.22. Jackson, ‘The Problem of Exod. XXI 22–5’, p. 285 n. 4; S.R. Hirsch, The Pentateuch. II. Exodus (trans. I. Levy; New York: Judaica Press, 1971), pp. 311–12; Isser, ‘Two Traditions’, p. 34.

Ancient Israel's interest in distinguishing between degrees of intentionality is not in question here (see A. Schenker, n. 44), only the doctrine of transferred intent. According to Loewenstamm (‘Exodus XXI 22–25’, p. 357), ‘Ancient oriental legislation formulates simple, typical circumstances and does not concern itself with abstract speculations on general theory of penal law as the divergence between the trespasser's intention and the result of his action’. Likewise, Houtman (Exodus 20–40, p. 165): ‘In my judgment, the question with or without intent is not raised in 21.22–25 and not relevant for evaluating the passage; not because in the given situation it is hard to find out whether intent is involved, but because the focus is solely on the damage that has been done and on how to make amends’.

42.

Contra Schwienhorst-Schönberger, Das Bundesbuch, pp. 97–98.

43.

Ziskind (‘When Two Men Fight’, p. 28) notes: ‘If she was in the early stages of pregnancy, the fighters might not have known that she was with child, and maybe they would have been more careful if her pregnancy was obvious’.

44.

So B.L. Eichler (‘Exodus 21:22–25 Revisited’, pp. 26–27): ‘Therefore, these verses [Exod. 21.13–14] may not be used to infer anything about the applicability of capital punishment or the right of asylum for other acts of homicide in the full gamut of voluntary-manslaughter cases. To be sure, v. 23 clearly addresses this case of voluntary manslaughter and states that it is viewed as a capital crime.’ Likewise, Propp (Exodus 19–40, p. 226) states: ‘In other words, what we reckon as manslaughter, the Bible considers murder. If people wish to brawl, they may, but they risk incurring capital charges if either a participant or a bystander dies’.

In the same vein, Schenker (‘Intentionalität im Bundesbuch’, pp. 213–17) identifies various degrees of intentionality in this section of the code (21.12–32) and claims that the degree of injury is a factor in determining the severity of the punishment, not just the degree of intention. In the case of the pregnant woman in 21.22–23, he considers the intention of the guilty parties to be partial or oblique, which in his assessment involves a level of willfulness just above the acts of reckless endangerment that follow (21.29–32).

45.

Staalduine-Sulman, ‘Exodus 21:22–25’, pp. 218–19; G.R. Driver and J.C. Miles, The Babylonian Laws: Legal Commentary (Ancient Codes and Laws of the Near East, 1; Oxford: Clarendon Press, 1952), pp. 315–16.

46.

For example, awareness of the woman's condition is possible even if she was a mere bystander, not willing to intervene.

47.

I will not debate here whether the capital talion was to be understood literally or whether it could be commuted.

48.

Staalduine-Sulman, ‘Exodus 21:22–25’, p. 207. Inevitably, an accusation will be advanced that I am reading too many particulars into a hypothetical case law. I would point out, however, that any ‘over-reading’ is more perceived than real. In actuality only two details are added by the foil to the ordinary and non-comparative reading of Exod. 21.22: (1) the altercation was initiated by one of the combatants; and (2) the pregnant woman attempts to interfere (verbally) with the fight. More involved reasoning is, of course, required to demonstrate how these two factors resolve certain difficulties; but this should in no way implicate the actual foil with complexity.

Moreover, it should be observed that my formulation adds no more to the meaning of Exod. 21.22 than the already established position that the pregnant woman was the wife of one of the combatants and attempted to assist her husband, as illuminated by Deut. 25.11–12 (see above).

Literary Solutions to Legal Problems: The Contribution of Exodus 2.13–14 to Exodus 21.22–23