‘What Now?’: Genre of the Deuteronomic Code as a Model for Contemporary Theological Ethics

Introduction

Much contemporary Old Testament ethical scholarship assumes a long-neglected prophetically critical posture: the academy is, and has been, attending to the vital work of dismantling popular norms, exposing deep-rooted ethical anemia, and productively disturbing paltry beliefs. Examples of such prophetic readings include Sandie Gravett's problematization of metaphors depicting divine sexual violence, Phyllis Bird's re-united reading of the creation narratives for the sake of re-considered sexuality, and Casey Strine's assertion that the Jacob narratives destabilize norms that remain ‘bound up with imperial structures that contribute to oppression’. ¹ Such scholarship importantly generates a sense of normative desolation, where many readers are left grappling with the text without the assuaging benefit of previous ethical presumptions. While that wilderness is a crucial stage of moral inquiry and formation, it is, however, a singular stage. ² The academy, in corporately producing faithful scholarship, should also lead readers toward a (metaphorical) promised land of ethical traction, if not moral clarity.

Deuteronomy narratively presents its legal material (chapters 12–26) as just such leadership: at the edge of the wilderness, Moses gives a series of farewell speeches about how to live faithfully in the promised land, including a second iteration of the law given at Horeb/Sinai. The legal collection in Moses’s second discourse, the Deuteronomic Code (DC), with its clear emphasis on how to respond to God's character and desires, represents a genre underrepresented in contemporary biblical scholarship. Yet the canonical presence of the DC's kerygmatic pragmatism invites the production of similar scholarly contributions: concrete propositions that empower readers to ‘to attend more fully to the concrete elements entering into the situation in which they have to act’. ³ Following a brief note on scope, I will examine the importance and nature of the DC's genre, particularly its inspiring, empowering, and unifying capacities. Having considered its dynamism, I will also address its contingency and liabilities, concluding with the genre's potential implications for the practice of contemporary theological ethics.

Scope

In considering the Deuteronomic Code, there are countless relevant considerations and concerns that simply do not fit within the scope of this article. The redactional history of the code, its narrative surroundings, ⁴ and its relationship to ancient Near Eastern legal material are not explored here with any sustained depth: while all of those considerations have greatly affected the shape of the DC's genre, this article focuses on the rhetorical effect of the code's final form and its potential for ongoing ethical reflection. Finally, given the sheer size of the code, this article cannot attend to all relevant texts and thus pays particular attention to Deuteronomy 15 as a paradigmatic pericope for textual grounding.

The Importance of Genre in the Deuteronomic Code

Typical hermeneutical approaches to the DC, and to scriptural legal codes more generally, attend to genre either for the sake of historical-critical concerns or as a gateway to the ‘spirit of the law’. ⁵ As Emily Ardnt explains, the Hebrew Bible is often ‘examined (albeit sometimes in a sophisticated manner) for the sake of discovering or supporting a theological or ethical proposition or set of propositions’, ⁶ a temptation which proves to be particularly strong for the inherently propositional nature of Scripture's legal material. This content-focused approach, while well-intentioned, is problematic not only because it imposes an obedience model of ethics onto a text that is expressly imitative, ⁷ but it treats genre as a mere container for meaning, rather than an inseparable facet of meaning. As Marshall McLuhan observed, any combination of media—here, the speech content of the DC and the written code itself—change both the form and use of each medium. ⁸ The effect of this interaction is so powerful that ‘any message, in the ordinary sense of “content” or “information”, is far less important than the medium itself’. ⁹ Scholarship has already applied this principle to other biblical genres, articulating the impossibility of distilling abstract norms from stories and poetry: as examples, Hauerwas’s theology posits that, in interpreting narrative, ‘one cannot derive principles and rules from the story, only to leave behind the story itself, without at the same time distorting the story’, ¹⁰ and Traci West cautions that ‘proscriptive messages derived from the prophets can carry implications that stymie the conceptualization of justice in Christian ethics’. ¹¹ Likewise, the resilient modern impulse to move beyond legal genres in pursuit of principles denies that ‘the legal records extant deal with determining facts of a case, and the formal statutes articulate abstract legal principles very rarely’. ¹² In other words, the authors of the DC intentionally chose not to deal in abstractions, suggesting that torah-shaped, illustrative particularities have a particular communicative capacity.

While the DC is typically referenced as biblical law, its resistance to neat genre categorization is evidenced by the various descriptors employed by commentators. With its pragmatism in view, the DC has been labeled generally as a ‘list’ ¹³ and more specifically as a communal charter or theocratic constitution that borrows heavily from ancient Near Eastern (ANE) treaties. ¹⁴ Due to its kerygma, it has also been described as a ‘communal catechism’, ¹⁵ ‘covenantal interpretation’, ¹⁶ ‘paraenesis’, ¹⁷ and ‘pastoral exhortation’, ¹⁸ with a mood that is ‘homiletical and didactic’, ¹⁹ marked by ‘prophetic urgency’. ²⁰ The complexity of the genre is further complicated by the variety of material contained therein: Gerhard von Rad, for example, distinguishes between conditional and apodictic laws, ²¹ while Gordon Wenham acknowledges the existence of ‘both enforceable law and expressions of ethical ideals’. ²²

Law, as understood from a modern, Western legal perspective, is then largely a misnomer: a substantive concept of law ²³ cannot account for the complexity (and the many notable omissions) of the code. While the DC was likely indirectly connected to practiced jurisprudence in Israel/Judah, ²⁴ its genesis as ‘underground reform theology’ ²⁵ suggests that the code represents law as ‘the distinction between things just and unjust’ ²⁶ in light of the sovereignty of God. As John Barton succinctly describes it, ‘torah is not exactly “law”—directives sent down from on high—but “teaching”, advice on how to follow the path that will take the hearer or reader to the goal God has in mind’. ²⁷

In light of the DC's varied identifications and functions, I would argue its genre takes the particular form of imaginative, pragmatic propositions based on communal hope. Merging utilitarianism and idealism, the DC ‘promulgates its vision and laws as an exhortation with conviction that such a model society which appears to be difficult to achieve can be a lived reality if Israel adopts appropriate behavior’. ²⁸ The DC, aware of present, concrete realities, both imagines a particular society and proposes concrete, practical measures to advance those ends. ²⁹ Where narrative prose integrates experiences to address what happened and poetry reckons with why it happened, ³⁰ the genre of the DC, then, is a both a reactive and proactive resource for ethical articulation as it proposes answers to the communal question of ‘what now?’ The code's core ‘if-then’ formulation imaginatively ‘reaches deep into the “hard stuff of the world of physical and social experience” and seizes upon possible new relations for thought and action’. ³¹ The communicative genius of this particular expression of torah is that it (1) imagines a specific, viable future, (2) empowers moral agency, (3) forges communal identity, and (4) addresses specific historical situations.

Imagines a Viable Future

The forward-thinking, consciously imaginative nature of the DC is perhaps its most defining and foundational feature. The authors and redactors of the text presumably ‘experienced an unsatisfactory reality and visualized a better one’, ³² crafting a vision, to borrow Peter Vogt's language, of:

the people of Yahweh living in harmony with one another and in dedication to their God. This vision is remarkably egalitarian: Deuteronomy provides for just and righteous treatment for all people, including slaves. Deuteronomy, and the Torah at its heart, envisions a society in which the whole of the people of God are considered ‘brothers’ to one another. Slaves, the marginalized, women, and even the king are considered brothers, and all members of the society strive to live out loyalty to Yahweh. ³³

Empowers Moral Agency

Imaginative, pragmatic propositions, like those offered by the DC, create scaffolding for moral agency, empowering ethical decision-making in service of desired ends. While it is a long-standing critique that prescriptions produce thoughtless obedience, Scripture operates from the countervailing assumption ‘that human beings are responsible agents, not the playthings of God … [that] the choices human beings make really matter’. ⁴³ In describing the experience of Sundanese ‘Lost Boys’ who were admitted to the United States, Jan Holton illustrates the import of pragmatic instruction for moral action:

The boys were given a practical and moral instruction that always ended with the mandate that God had given them a job … one of these young men … was given an audiotape of the elders offering their instructions. He kept this tape over the last ten years and listened to it often. ⁴⁴

Forges Communal Identity

The moral agency imbued by the DC's pragmatism undergirds its call to communal ethical cooperation based on shared imagination of a ‘remad[e] social world and ethos’. ⁵⁰ At a very basic level, all legal genres are fundamentally corporate, as ‘law and legal culture borrow from, appropriate and move around cultural expectation’. ⁵¹ But the DC's forward-thinking propositions expect and inspire more than mere ideological proximity: a ‘thoroughgoing revision’ ⁵² of society requires communal consensus of values, a deep-seated, thematic unity. Attention to the DC's emphasis on solidarity is typically interpreted in light of cultic centralization or, more recently, as a traumatized exilic/post-exilic ‘defensive strategy [that] involves shoring up a sense of self by making the boundaries between self and other more rigid’. ⁵³ While valid and important interpretations, the DC doesn’t only envision community as over-and-against the other, but also as permeable kinship. This familial community welcomes the otherness of vulnerability, as the social laws afford protection from ‘economic practices that prioritize wealth accumulation over the wellbeing of the poor’. ⁵⁴ The stress on national solidarity, then, is primarily a function of faithfulness, proposing ‘civic, social regulations that will keep covenantal life viable’. ⁵⁵ Deuteronomy 15, as an illustration, repeatedly refers to ‘members’ of the community (15:2, 3, 7, 12), language that, in the context of pragmatic care, evokes corporeal connectedness more than exclusivity. Deuteronomic law, then, functions ‘at the level of community-formation, not primarily at that of rules or principles’. ⁵⁶ While the DC affords individuals great moral agency, the ‘reward for individual adherence to the commandments is a national prosperity in which the individual shares as a citizen of the nation’. ⁵⁷

Historical Contingency

Consciously, then, the genre of the DC sought ‘to form communities of moral agency within which individuals are brought into relationship with the character, activity, and will of God and can then act in particular ways, both individually and corporately, as moral agents in the world’. ⁵⁸ The contexts that generated, formed, and codified the text were marked by ‘deep-seated changes in politics, in social and intellectual and religious matters’, ⁵⁹ and the code responds to these material and social conditions even as it seeks to shape them.

However, its contingency is vehemently denied by its authors/redactors and is only brought into relief historically and canonically. As James Watts identifies, the Pentateuch:

commands its own ritualization in iconic (tables, ark, scroll) and performative (read aloud) dimensions, and its exhortations presuppose semantic study of at least its laws … the [covenantal, legal and instructional] terms indicate that its writers intended the legal and, especially, ritual material to generate the Pentateuch's dominant, what we might call ‘scriptural’, effect. ⁶⁰

Thus canonical and reception history have proven that, contrary to the desires of the authors/redactors, much of the DC's content—like the assumption of slavery in Deut. 15:12-18—is inherently contingent on particular historical contexts, due to the concreteness of its ethical proposals. Indeed, content aside, the structure of the code draws deeply from the larger ancient Near Eastern legal and scribal culture, appropriating forms without modern analogue.

While not always a conscious or welcome element of the genre, historical contingency is, however, vital to ethical traction, for ‘all principles are groundless “formal abstractions” with “no content of their own” and so must stoop to take both content and energy from politics, that is, “from the very realm of messy partisan disputes about substantive good of which they claim to be independent”’. ⁶⁴ The imaginative energy and the rhetorical impact of the DC is rooted in, rather than undermined by, its attachment to history: the rhetoric of ‘how we got here, what we have to do now, and what will happen if we do and if we don't’ was as persuasive in the ancient Near East as it is today, ⁶⁵ largely because of its contextuality.

Modern Use of the DC's Genre (or a Lack Thereof)

Before promoting modern appropriation of the DC's genre, it is important to note that it (like all human expression) has inherent limitations and liabilities, which perhaps contribute to modern unease in offering similarly imaginative, concrete propositions. The ancient fear of reversion to ‘primordial chaos’ ⁶⁶ persists in the modern psyche, and that fear can blur the fine line between justice and order, between ethical agency and control. Order-motivated ‘ethical’ propositions often serve ‘the interests of the people in charge, presiding over and benefitting from the order’. ⁶⁷ Indeed, both the church and the academy have a history of offering exclusionary and ‘paternalizing moral claims’. ⁶⁸ Any attempt, however well-intentioned, to direct communal behavior risks hegemony; as Cheryl Anderson articulates in Women, Ideology and Violence, ⁶⁹ the Deuteronomic laws, flavored by patriarchy, overwhelming privilege maleness. Even the most imaginative ethical propositions are not created ex nihilo, so ‘systematizing in morals risks myopia’. ⁷⁰

However, to borrow again from McLuhan, it is worth not only determining what a particular medium obscures and obsolesces, but also what it retrieves and enhances. ⁷¹ Thus considered, the imaginative, communal, contingent propositions of the DC present as an essential genre for modern theological ethics, as a tool for scholars to bravely propose creative, tractive norms without fear of infallibility or universality. In other words, while the DC itself ‘does not provide us with a blueprint for ordering industrial society’, ⁷² its existence in the canon suggests that imaginative ‘blueprints’ have a place in theological ethics. Appropriating genre, rather than content, means that modern propositions can not only be similarly teleological without seeking analogous circumstances, but can also imaginatively address issues untouched by the DC's authors and redactors.

The use of this genre expects ethical articulations that are not merely critical but also constructive, proposing clear avenues to specific hopes. These proposed ‘rules’ should be articulated as ‘guiding hypotheses that help open situations to inquiry. They are properly conceived experimentally, as “intellectual instruments to be tested and confirmed—and altered—through consequences effected by acting upon them”’. ⁷³ Emulating the DC, modern ethical propositions should thus be anchored to a community, for the sake of ongoing corporate revision and cooperative implementation, empowering participatory ethical behavior and not mere submission to norms.

There is significant freedom in this genre's historical contingency and scope: ethical pragmatism is not eternal, but rather ‘partisan theology, always for the moment, always for the concrete community, satisfied to see only a piece of it all and to speak out of that at the risk of contradicting the rest of it’. ⁷⁴ Propositions thus need not be universal, absolute, or infallible to be faithful nor do they need to do the work of other ethical genres, like narrative. As Barton notes, ‘only through the richness of storytelling [do] we come to understand what it is to be human and to make informed choices in a world which is only partly predictable’. ⁷⁵ Narrative, poetry, liturgy, prophecy, and any number of other genres can complement, correct, and color ‘legal’ genres without invalidating the particular contribution of hope-filled pragmatism.

It is worth noting that employing this genre requires not only great creativity, but also remarkable courage: in venturing concrete propositions, one risks not only eventual irrelevance, but also misunderstanding, misappropriation, or public ridicule. Despite these demands, there are scholars who have undertaken the task, like the editors/redactors of the DC, ‘to make the will of God, set before them in the traditions of a distant past, become a matter of urgent importance at a time which had experienced deep-seated changes in politics, in social and intellectual and religious matters’. ⁷⁶ For example, the third section of John Rogerson's Theory and Practice in Old Testament Ethics reflects the genre of the DC, as it is both oriented toward the future and rooted deeply in modern ethical concerns. More recently, the volume God and Guns: The Bible against American Gun Culture ⁷⁷ represents an interpretative collaboration threaded with both the kerygma and the pragmatism of the DC. As relentless societal change continues to prompt the people of God to continue to ask ‘What now?’, perhaps these examples will embolden other scholars to offer faithfully concrete ethical propositions. For if theological ethicists do not answer that question with imaginative hope, empowerment, and communal vision, who will?