Was God's law available prior to Sinai?

⮜ Answered Questions

Introduction

God established civil government right after the Flood, as recorded in Genesis: 6 Whoever sheds man’s blood, his blood will be shed by man, for God made man in his own image. Genesis 9:6WEB

Reno comments:

the verse also directs our attention to a fundamentally new aspect of human history. By causing the flood, God has taken justice into his own hands. The wickedness of humanity has been punished. Now, however, God takes the most heinous of crimes and puts justice into human hands. We are to exercise dominion over each other, punishing those who wrongfully take life.

Walton comments:

Exacting punishment for murder is not reserved for deity but is placed under the purview of human judicial systems here, whether they are located in courts or in clans. This verse may well mark the beginning of judicial responsibility that is eventually evidenced in the compilations of sample verdicts (such as those found on the Hammurabi Stele) throughout the ancient Near East.

Sarna comments:

By man It is a human responsibility. The particle bet in Hebrew ba-'adam is here taken to indicate the instrument of punishment.2 Human institutions, a judiciary, must be established for the purpose. This requirement seeks to correct the condition of “lawlessness” that existed prior to the Flood (6:11). The blood feud is eliminated, and murder is no longer a private affair between the killer and the family of the victim;

After this, God revealed a detailed set of statutes (no doubt directly to Noah, the way he revealed the plans for the ark). We can infer this from five lines of evidence:

1. The logical necessity of legal procedure, evidential requirements and other detail
2. Direct scriptural evidence of God's pre-Sinai legal statutes
3. Indirect scriptural evidence of God's pre-Sinai legal statutes
4. Sin is not reckoned where there is no law
5. Parallel language in certain pre-Sinai, ancient Near East law codes.

Let's examine each of these lines of evidence.

The logical necessity of legal procedure, evidential requirements and other detail

The plain "blood for blood" statement in Gen. 9:6 was not sufficient, in itself, to guide this new (at the time) type of civil retributive action which YHWH was commanding. He would have had to provide further instruction (torah) to Noah in order to create a minimum comprehensive system of civil justice. Consider the following questions which Noah might have had, after hearing this simple statement:

1. Any shedding of blood? Or is "blood" merely a metonym for killing?
2. Any killing? Or is killing in self-defense lawful? How about killing in defense of innocent others?
3. What if the "shedding of blood" is accidental (an axe head flies off: Deut. 19:5)? Is there still blood-guilt? Wouldn't God have cared about this element of justice enough to provide this necessary detail (the way he later did in the Sinai law code)?
4. How many witnesses would be necessary to establish legal guilt?
5. Does transcendent justice allow for a judge or victim to pardon the offender entirely, or else accept monetary ransom as a substitute for the retributive bloodshed?

I could multiply questions, but you get the point. It is a momentous decision to put transcendent justice in the hands of sinful humans. God wouldn't just give ambiguous commands to kill in response to killing. He would have supplied additional instruction (torah) to mankind through Noah.

This additional instruction would have covered:

1. Legal procedures
2. Evidential requirements (e.g. two or more witnesses)
3. Enumeration of crimes (as distinguished from sins)
4. Specification of penalties (e.g. restitution for theft, death penalty for kidnapping, etc)

Should we infer that Noah himself was both righteous and intelligent enough to invent all the details of the laws which:

• protect the innocent against injustice,
• limit the scope and power of civil government, and
• punish all criminal offenses with perfect justice?

If not, it is reasonable to infer that Noah sought YHWH's guidance, just as Moses did so on multiple occasions to clarify points in the Sinai law which he had already been given.

Direct scriptural evidence of God's pre-Sinai legal statutes

In the book of Genesis, God praised Abraham: 5 because Abraham obeyed my voice, and kept my requirements, my commandments, my statutes, and my laws.” Genesis 26:5WEB The terms "commandments, statutes, and laws" are used together elsewhere in Scripture (e.g. Deut. 11:1) to denote the whole of God's law. The language of this verse is so explicit that most modern commentators dismiss this phrase as an (anachronistic) addition by a later editor.

This verse directly states that God's laws were given prior to the ones associated with the Sinai Covenant. The idiomatic phrasing implies that these laws were given in comprehensive detail. Lack of an itemized scriptural record of these laws means nothing, evidentially.

We also have direct evidence of YHWH-approved, pre-Sinai legal statutes in Exodus: 4 Then YHWH said to Moses, “Behold, I will rain bread from the sky for you, and the people shall go out and gather a day’s portion every day, that I may test them, whether they will walk in my law or not. Exodus 16:4WEB

Bruckner notes: "The Exod. 16.4 text is consistent with many implications in the Genesis narrative that the patriarchs, though they did not have the formulations of Sinai, nonetheless had some law akin to it."

Furthermore, prior to the establishment of the Sinai Covenant and the giving of the Ten Commandments (Exodus 20), Moses was already judging the Israelite mixed-multitude by a system of YHWH's statutes and commandments: 15 Moses said to his father-in-law, “Because the people come to me to inquire of God. 16 When they have a matter, they come to me, and I judge between a man and his neighbor, and I make them know the statutes of God, and his laws.” Exodus 18:15-16WEB

This system of statutes and commandments must have been extensive and detailed enough to cover the legal issues and procedures of a large multitude with lots of rebellious and sinful people. Hamilton writes:

In Exod. 18:16 Moses answers such requests by "mak[ing] known God's statutes and his teachings." We are not yet at Sinai, where God will reveal his "ḥôq" and his "tôrâ" to his people. Have there been revelations of such matters that are pre-Sinai and anticipatory of Sinai? Apparently so; see Exod. 15:25b.

Indirect scriptural evidence of God's pre-Sinai legal statutes

The book of Genesis contains extensive references and allusions to detailed laws covering a similar scope to the ones we find in the other four books of the Pentateuch. It implies a legal framework that encompasses (at a minimum) contract law, family law (including levirate marriage), criminal law, covenants, treaties, and judicial procedure.<

Bruckner notes that the entire story of the judgment of Sodom and Gomorrah is framed as an example of a formal legal investigation, with YHWH as the presiding judge:

in Genesis 18-19 an indictment is issued, based on a cry to God (18.20). The process of trial is declared (18.21), the terms of the trial are negotiated (18.23-33), evidence is established by eyewitnesses (19.1-9), and verdicts and a sentence are declared and carried out (19.12-29).

In Genesis 20, YHWH makes it clear to Abimelech that death is the just penalty for violating a marriage covenant:

3 But God came to Abimelech in a dream of the night, and said to him, “Behold, you are a dead man, because of the woman whom you have taken; for she is a man’s wife.” Genesis 20:3WEB ... 7 Now therefore, restore the man’s wife. For he is a prophet, and he will pray for you, and you will live. If you don’t restore her, know for sure that you will die, you, and all who are yours.” Genesis 20:7WEBGenesis 20:3,7

In the book of Genesis, there are many references to sacrifices made to YHWH. The dispute between Cain and Abel, for example was triggered by the fact that YHWH found Abel's sacrifice acceptable and Cain's unacceptable (Gen. 4:5-7). By this it is implied that YHWH gave both men instructions on how (and what) to sacrifice. This is evidence of YHWH giving laws about sacrifice to men, even though we do not have the specific text of those laws.

Noah was told to bring seven pairs of "clean" animals (Gen. 7:2). The term "clean" is legally significant and it is clear that Noah used some of these "clean" animals for his initial sacrifice after the Flood:

20 Noah built an altar to YHWH, and took of every clean animal, and of every clean bird, and offered burnt offerings on the altar. Genesis 8:20WEB

Hamilton discusses the relationship of this sacrifice to the later Sinai sacrifices:

It is appropriate that the offerings [Noah] presents to Yahweh are holocausts or "whole burnt offerings" ('ōlōṯ). It is probable that this is the oldest and most frequent of all the OT sacrifices. A continual burnt offering ('ōlaṯ tāmîḏ) was made twice daily, morning and evening (Exod. 29:38-42). Leviticus and Numbers mandate this offering after some kind of crisis, such as after childbirth (Lev. 12:6-8), after bodily discharges (Lev. 15:14-15, 29-30), and after defilement during a Nazirite vow (Num. 6:10-11). The priestly legislation attaches an expiatory function to it (Lev. 1:4; 9:7; 14:20; cf. 1 Sam. 13:12; Job 1:5; 42:8). But whenever the whole burnt offering is presented, the motive is joyful, indicated by the fact that this holocaust is called a freewill offering (Lev. 22:17-25; Num. 15:1-11). It is anything but dour. In addition to expiation, this sacrifice serves at least two other functions. It is connected both with petition (1 Sam. 13:12) and with thanksgiving (Lev. 22:17-25; Num. 15:1-11).

This is evidence of YHWH giving laws about sacrifice to Noah, even though we do not have the specific text of the law. If we follow Paul's metaphor of the law as a "tutor", maybe we could consider these early versions of the sacrificial system to be a "nanny" teaching a child their alphabet. Obviously these sacrifices were treated by YHWH as "acceptable" on many occasions.

Job also lived prior to the giving of the laws at Sinai. The scripture says:

5 It was so, when the days of their feasting had run their course, that Job sent and sanctified them, and rose up early in the morning, and offered burnt offerings according to the number of them all. For Job said, “It may be that my sons have sinned, and renounced God in their hearts.” Job did so continually. Job 1:5WEB

Job was both righteous and conscientious, and must have been following statutes given by YHWH about which burnt offerings were required. Immediately after the above, YHWH refers to Job as "a blameless and an upright man," (v. 8). Although we do not now have the specific commands which describe these offerings, this scripture is indirect evidence that such laws about sacrifice were given before Sinai.

Jethro, Moses' father-in-law was labeled a "priest of Midian" (Exod. 18:1):

12 Jethro, Moses’ father-in-law, took a burnt offering and sacrifices for God. Aaron came with all the elders of Israel, to eat bread with Moses’ father-in-law before God. Exodus 18:12WEB

Here is Hamilton's comment on this verse:

Jethro seems to be the officiating priest. Moses is named twice but only as the son-in-law of Jethro. Aaron is named and is present, but he appears to do nothing priestly. It is Jethro who takes a burnt offering (ʿōlâ) and sacrifices (zĕbāḥîm) and brings them to God. The latter term is not a catchall term for a whole bunch of other sacrifices in addition to the ʿōlâ. Rather, it is a reference to the zebaḥ šĕlāmîm (peace offering/fellowship offering) of Lev. 3. We know this is so because v.12 tells us the party "eat" (part of) the sacrifices, and the zebaḥ šĕlāmîm (or just šĕlāmîm) is the only offering whose meat is consumed by the worshiper/donor.

Jethro, identified as a "priest", sacrifices a "fellowship offering" to God akin to the one prescribed later (after Sinai) in Leviticus 3. Moses and Aaron participate in this event, without questioning or labeling it as "false worship" or idolatry. This is further evidence of sacrificial laws given prior to Sinai.

Sin is not reckoned where there is no law

The Apostle Paul states that "sin is not reckoned when there is no law," (Rom. 5:13). Yet sin was reckoned against many people groups in the pre-Sinai era, including Sodom and Gomorrah and the Amorites. For example, YHWH told Abraham about the sins which he was reckoning against the Amorites four-hundred years before he would judge them for their sin:

16 In the fourth generation they will come here again, for the iniquity of the Amorite is not yet full.” Genesis 15:16WEB

In the process of giving a series of laws, including detailed laws about sexual sins (like incest, bestiality, adultery, and homosexual acts), YHWH explains why he will use the Israelites as a form of warfare judgement against the Canaanites:

Lev. 18:24-28 Could not parse reference. ' . 'Please use the format 'Gen 1:10' or 'Genesis 1:10-15'.

Therefore, the Amorites and all the other peoples in the land of Canaan (Deut. 18:9-14) must have been given a form of God's law (including the very specific regulations itemized in Leviticus 18 and Deuteronomy 18), otherwise their sin would not have been reckoned to them (a reckoning which brought near total destruction to their peoples).

Deut. 18:9-12 Could not parse reference. ' . 'Please use the format 'Gen 1:10' or 'Genesis 1:10-15'.

Wherever we see God's temporal judgment at work, we can be certain that he made his law available to those people groups. Otherwise, we would have to disagree with Paul's statement in Rom. 5:13.

Parallel language in certain pre-Sinai, ancient Near East law codes.

There was a period in Biblical scholarship, after the discovery of the Code of Hammurabi and other cuneiform law codes where scholars claimed a large number of parallels between them. This phenomenon, labelled "parallelomania" by Samuel Sandmel (in a 1961 essay by that title) probably peaked in the first half of the 20th century. Many of these parallels have now fallen to counter-criticism, but there is still a residual of very similar phrasing which represents legitimate parallelism between these law systems. There are many examples, but a few representatives will be sufficient to demonstrate my point.

Consider the following three legal codes, presented in the probable chronological order in which they were written down:

Laws of Eshnunna, circa 1930 B.C

54 If an ox is a gorer, and the ward authorities so notify its owner, but he fails to keep his ox in check, and it gores a man and thus causes his death, the owner of the ox shall weigh and deliver 40 shekels of silver. 55 If it gores a slave and thus causes his death, he shall weigh and deliver 15 shekels of silver.

Code of Hammurabi, circa 1750 B.C

(251) If a man has an ox which tosses and his council have informed him that it tosses and he has not covered its horns and has not tied the ox up and the ox tosses a man's son and causes his death, he shall pay half a shekel of silver. (252) If it was a man's slave he shall give a third of a mana of silver.

Covenant Code in Exodus, written down circa 1450 B.C

28 “If a bull gores a man or a woman to death, the bull shall surely be stoned, and its meat shall not be eaten; but the owner of the bull shall not be held responsible. 29 But if the bull had a habit of goring in the past, and this has been testified to its owner, and he has not kept it in, but it has killed a man or a woman, the bull shall be stoned, and its owner shall also be put to death. 30 If a ransom is imposed on him, then he shall give for the redemption of his life whatever is imposed. Exodus 21:28-30WEB ... 32 If the bull gores a male servant or a female servant, thirty shekels of silver shall be given to their master, and the ox shall be stoned. Exodus 21:32WEBExodus 21:28-30,32

There is enough similarity among these three laws to imply that there is some relationship between them. Some scholars, because of the temporal priority of the Eshnunna and Hammurabi Codes, have suggested that "the author of the Covenant Code" (whoever that might have been) must have had access to a copy of one of these laws and borrowed from it, falsely attributing the law to YHWH. The more likely explanation, given the balance of the evidence, is a set of common legal antecedents given by YHWH to Noah, some of which were preserved by his ancient Near East descendants (see explanation below).

Laws of Eshnunna, circa 1930 B.C

56 If an ox gores another ox and thus causes its death, the two owners shall divide the value of the living ox and the carcass of the dead ox.

Covenant Code in Exodus, written down circa 1450 B.C

35 “If one man’s bull injures another’s, so that it dies, then they shall sell the live bull, and divide its price; and they shall also divide the dead animal. 36 Or if it is known that the bull was in the habit of goring in the past, and its owner has not kept it in, he shall surely pay bull for bull, and the dead animal shall be his own. Exodus 21:35-36WEB

This case proposes a legal solution that solves three problems:

1. The differing relative value of the animals.
2. The uncertainty of fault due to animal behavior.
3. The changing market value for the animals.

It's possible that this clever legal solution was developed independently by a sharp Babylonian jurist. But it is more probable that there was a common legal antecedent, given through Noah.

A couple more examples:

Code of Hammurabi, circa 1750 B.C

196 If a man put out the eye of another man, his eye shall be put out. 197 If he break another man's bone, his bone shall be broken... 200 If a man knock out the teeth of his equal, his teeth shall be knocked out.

Covenant Code in Exodus, written down circa 1450 B.C

23 But if any harm follows, then you must take life for life, 24 eye for eye, tooth for tooth, hand for hand, foot for foot, 25 burning for burning, wound for wound, and bruise for bruise. Exodus 21:23-25WEB

It has been common for Bible commentators to claim that the Israelite "eye for an eye" (talion) legal tradition originated with a prior ancient Near East culture (like the Babylonian one represented in the Code of Hammurabi). But this is just a post hoc fallacy. Many elements of Biblical law are diametrically opposed to certain ANE legal traditions, even in the way that talion is used in the respective systems. Again, antecedent legal principles, common to both systems, make more sense of the relationship, given the complete cultural/historical context and timeline.

Laws of Lipit-Ishtar, circa 1860 B.C.

17 If a man, without grounds, accuses another man of a matter of which he has no knowledge, and that man does not prove it, he shall bear the penalty of the matter for which he made the accusation.

Code of Hammurabi, circa 1750 B.C

1 If a man accuses another man, and charges him with homicide but cannot bring proof against him, his accuser shall be killed. ... 3 If a man comes forward to give false testimony in a case, but cannot bring evidence for his accusation, if that case involves a capital offense, that man shall be killed. 4 If he comes forward to give (false) testimony for (a case whose penalty is) grain or silver, he shall be assessed the penalty for that case.

Deuteronomic Code, written down circa 1450 B.C

16 If an unrighteous witness rises up against any man to testify against him of wrongdoing, 17 then both the men, between whom the controversy is, shall stand before YHWH, before the priests and the judges who shall be in those days; 18 and the judges shall make diligent inquisition; and behold, if the witness is a false witness, and has testified falsely against his brother, 19 then you shall do to him as he had thought to do to his brother. So you shall remove the evil from among you. Deuteronomy 19:16-19WEB

There are notable differences in these codes, but there is substantive correlation on the principle of talion justice for bearing false witness.

There are other parallels, but these are sufficient to establish the important question: what explains the relationship between them?

The following summary describes the typical ways:

[O]ne may generally distinguish four approaches to the relationship between [the Covenant Code (CC)] and [the Law of Hammurabi (LH)].⁶ ) The first holds that, despite a number of apparent parallels, biblical law developed quite independently of other ancient Near Eastern (ANE) legal collections. A second approach favors the concept of “diffusionism,” on the assumption that biblical writers shared a culture of legal reasoning and practice. Parallels between LH and CC can be explained, therefore, by the conjecture that scribes in both Mesopotamia and ancient Israel/Judah underwent some kind of common intellectual formation, but without positing dependence on an identifiable legal text. A third solution opts for a model of indirect literary influence or dependency. There are several varieties of this stance, ranging from the proposal that both LH and CC shared a common source to the widely held belief that the legal patrimony of ancient Mesopotamia was mediated to early Israel through the use of Akkadian as a language of international diplomacy in Canaan during the later Bronze Age. The fourth approach proposes a direct literary dependency between CC and LH. What is of especial interest for this paper is the fact that proposals of direct literary dependency on LH have been rare in previous biblical scholarship.

It should be clear from the above summary that the "relationship" question for many modern commentators can be complicated by their insistence upon certain modern scholarly prejudices, such as later (e.g. post-Exilic) composition, fragmentary authorship, and an unknown amount of late redaction. I do not share these complicating assumptions.

My argument is thus a variation upon the "shared common source" approach mentioned above. It is very similar to the argument about the various Flood accounts (e.g. Epic of Gilgamesh) which are recorded in other sources besides the Hebrew scriptures. If we were to assume mere chronological priority of the existing written Flood accounts as determining originality, then we would have to dismiss the Noah Flood "mytho-history" as a late, secondary development. On this view, parallel details are assumed to indicate dependency of a later account upon a former. Conservative scholars do not fall into this trap, with good reason. They rightly assume that the scriptural version is in all respects an accurate account of the event, evidencing some corrupting influence which has substantially modified other Flood stories.

In a similar way, any parallels which we find in ancient Near East law codes can best be explained by an antecedent legal system given by YHWH to a common ancestor of these people groups: namely, Noah. We do not have to believe that any particular law given to Noah would necessarily be preserved in even substantial amounts through generations of neglect by those who did not continue to worship YHWH. But if a comprehensive set of laws (coextensive with the ones published at Sinai) were given by YHWH to Noah, then we would not be surprised to find a few artifacts of this original law showing up in other ancient Near East law codes. In fact, we could expect to see such parallels and consider them to be good evidence of that prior "Noahic" law system.

The Jewish scholar Philip Biberfeld articulated this position several decades ago:

The Code of Hammurabi, the Hittite Laws, and the Biblical Laws contained in the Book of the Covenant and other parts of the Bible go back to a common source which is best preserved in the Bible where it has retained its original simplicity ... The common source that can be traced in all these codes is identical with the Noahidic Laws which, according to the tradition, were the inheritance of all mankind. In the Book of the Covenant this original divine law was promulgated again with the modifications of Biblical legislation ... All this establishes beyond any doubt the conviction that the simple and lucid formulations of the Bible were not the product of an artificial process of elimination but those of the original version in all their purity and simplicity. This conclusion has implications which extend far beyond the realm of these ancient legislations. It has a decisive bearing on all those instances where the pure and beautiful Biblical traditions are confronted by mythological parallels with all their ugly distortions.

Are these the "Noahide Laws"?

Notice that Rabbi Biberfeld in the quote above says "the Noahidic Laws which, according to the tradition, were the inheritance of all mankind." He is referring to a concept which is also called the "Noahide laws." As with many things which involve Jewish extrabiblical tradition, this is somewhat of a "rabbit hole". The quick answer to the question I posed in the heading is "No." I propose that a set of laws -- coextensive with the judicial laws of the Sinai covenant -- were taught to Noah, but I do not claim that we have any authoritative extrabiblical evidence of these specific laws.

Usually, when you hear or read someone discussing the Noahide Laws, they are referring to seven discrete apodictic commands which were supposed to have been given by YHWH either to Adam or Noah. This has been part of Rabbinic teaching for a while, documented in the Babylonian Talmud as follows:

Sages taught in a baraita: The descendants of Noah, i.e., all of humanity, were commanded to observe seven mitzvot: The mitzva of establishing courts of judgment; and the prohibition against blessing, i.e., cursing, the name of God; and the prohibition of idol worship; and the prohibition against forbidden sexual relations; and the prohibition of bloodshed; and the prohibition of robbery; and the prohibition against eating a limb from a living animal.

Of course, if you keep reading in the Talmud, you find that it isn't just seven laws. Later than Noah, more laws were added to the seven. In fact, the number might go as high as 30, or higher, depending upon which Rabbi's opinion you count. In the middle ages, the influential Rabbinic scholar Maimonides claimed that Gentiles who followed these laws would have a "share in the world to come":

(10) ... Moses was commanded by the Almighty to compel all the inhabitants of the world to accept the commandments given to Noah's descendants. If one does not accept these commands, he should be executed. A person who formally accepts these commands is called a resident alien. This applies in any place. This acceptance must be made in the presence of three Torah scholars. ... (11) Anyone who accepts upon himself the fulfillment of these seven mitzvot and is precise in their observance is considered one of 'the pious among the gentiles' and will merit a share in the world to come.

Of course, there is no scriptural basis for the above teaching. In fact, there are multiple places in Biblical law which claim that the law applies equally to both Jews and resident Gentiles (sojourners):

14 If a stranger lives as a foreigner with you, or whoever may be among you throughout your generations, and will offer an offering made by fire, of a pleasant aroma to YHWH, as you do, so he shall do. 15 For the assembly, there shall be one statute for you and for the stranger who lives as a foreigner, a statute forever throughout your generations. As you are, so the foreigner shall be before YHWH. 16 One law and one ordinance shall be for you and for the stranger who lives as a foreigner with you.’” Numbers 15:14-16WEB 25 The priest shall make atonement for all the congregation of the children of Israel, and they shall be forgiven; for it was an error, and they have brought their offering, an offering made by fire to YHWH, and their sin offering before YHWH, for their error. 26 All the congregation of the children of Israel shall be forgiven, as well as the stranger who lives as a foreigner among them; for with regard to all the people, it was done unwittingly. Numbers 15:25-26WEB 29 You shall have one law for him who does anything unwittingly, for him who is native-born among the children of Israel, and for the stranger who lives as a foreigner among them. 30 “‘But the soul who does anything with a high hand, whether he is native-born or a foreigner, blasphemes YHWH. That soul shall be cut off from among his people. Numbers 15:29-30WEB

In the 20th century, two Jewish scholars -- Philip Biberfeld (quoted above) and Aaron Lichtenstein -- proposed that these Noahide Laws were not simply discrete commands, but represented seven categories of multiple laws. The bottom line is, if someone makes a claim about "Noahide Laws", make sure they define what they mean, and ask them their specific sources for these laws.

Conclusion

Based upon the above five lines of evidence, we can infer that a set of detailed laws, judicial and evidential procedures and punishments -- revealed and approved by YHWH -- must have been available prior to Sinai. Even though we do not now have a written record of them (the way we have a written record of the post-Sinai laws), we can infer that they were substantially similar to, and coextensive with, the post-Sinai laws.