Exodus 21 a study

[2]. Some theologians seem to hold the view that on has to accept the text as it stands, others however, believe that the Hebrew text was once disturbed. The former accept the text as an organic whole and interpret it that way[3]. The latter however, have begun an inquiry into what may have happened to the original law. The result is that in the past decades several attempts have been made to reconstuct the original law. These attempts are based on the assumption 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. 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. A plausible cosmetic correction of the text would therefore be the key to the discovery of the original biblical law and its meaning[4]. Although these skillful attempts deserve respect and the results often look convincing, an important question is left unanswered: why should a redactor change a law that makes sense into one that does not?[5]The phenomenon at hand of the redactor and/or his failure seems to have become too much a method as such in today’s studies about the original meaning of Exod.xxi 22-25. This is not to say that the redactor(s) did not change the text or made no mistakes. It simply means that too much atttention was paid to his/her work. Other relevant aspects such as cultural development, ethics and philosophy have been lost sight of[6].

This study aims to reconstruct some stages in the development of the (meaning of this) law by paying particular attention to the cultural, philosophical and ethical influences. It starts with the thesis that the original law of Exod.xxi 22-23 served, at one point, a clear purpose in the social life in biblical times. Whether this law or parts of it already existed in Palistinian codes before it became part of the code of Exodus or not[7]. Consequently, this law made sense. A law that makes sense is first and foremost embedded in ordinary life. This means that the substance of the law is based on a conflict between an accepted moral or religious standard in a society and a general and a specific situation in practical life. Futhermore, a law that is coherent requires a clear formulation about the conflict between the moral standard and its practice. It must also be clear about the consequences of this practise in terms of punishment. A law may not be in contradiction with other laws on the same moral standard.

If it is true that most laws in the context of Exod.xxi 22-25 stand this test, then the law in Exod.22-25 is corrupted in one way or the other. The actual wording of the text does not meet any of the criteria mentioned. The formulation is complicated, the phrasing is difficult, the substance shows inconsistencies and the overall law contradicts the direct context[8]. If this is true, then this text has been seriously corrupted.

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, it is hard to accept that he intended to change a simple and clear law into a difficult one. Moreover, isn’t it possible that he is the very same careful redactor/writer or compiler who left us not only his law but also, for example, Exod.xxi 1-21 and 26- xxii,16? If so, what may then explain the curious phenomenon in the wording of the vss. 22-25? A possible explanation may be that the redactor was confronted with a damaged scroll and disturbed and indecipherable passage. He may only have been able to write down the words he recognized on the parts and pieces that were left. It was his duty to collect these parts and make the best of it. Although it was not his intention, he not only created 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 adoposis.

Does this imply that the meaning of the original law was lost and that it was replaced by a new law with a totally different meaning, as suggested by B.S. Jackson?[9]

This is highly improbable. A law is based on general accepted moral (and/or religious) standards in a society. The law changes when a moral standard changes or when views or knowledge are rendered out of date by recent insights or new developments. However, it is difficult to imagine that a change in the wording of a law will change its moral standard. Thus, it is far more likely that the meaning of the origianl law of Exod.xxi, 22-23 was important in the oral tradition at the time when the scroll was rewritten. This suggests that from the first moment onward, one was aware that the literal phrasing of the Hebrew reading of Exod.xxi 22-25, as it lies before us, was not correct.

Now the question is why the redactor did not make use of the oral tradition and reconstructed the original laws. He may not have been able to because nobody remembered the literal wording of the disturbed passage. Another problem in this respect was that one of the laws had fallen into disuse. (I will explain this thesis later). The only option left to the redactor was to collect the parts and pieces in an attempt to reconstruct the original wording as far as possible.

The next question is whether we can reconstruct the meaning of the original law although the redactor constructed a completely new version. To answer this question we can look for information about the style and substance of the original in the immediate context. Next, we can look for traces of the oral law in extrabiblical sources.

Let us first pay attention to the context of Exod.xxi, 22-25. The laws in the context do not only provide 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. To this V. Wagner convincingly added that the laws in the Book of the Convenant are systematically built up around a theme[10]. This means that the laws in the vss. 22-25, just as the laws in the vvs. 12-36, 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 proceding law (vvs.20-21) and the law following (vss.26-27) does deal with human integrity and slavery.

Another matter that needs to be dealt with is the fact that the laws in the same context of the protases contain clear descriptions of imaginable situations. The protasis in Exod.xxi, 22 is questionable. This protasis tells us about fighting men hurting a pregnant woman. The Hebrew text seems to suggest that more men hit her[11]. Furthermore we can only guess at the relationship between the men and the woman. Is she the wife of one of them? If so why is nothing said about the pregant woman’s intention? 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 realistic? Is it conceivable that a law is needed for a pregant woman involved in a fight between several men? This means that pregnant women are not accasionaly but regularly involved in a struggle between men and are hurt in such a way they have a miscarry or give birth to their child? It is difficult to imagine that Jewish men fought regularly thereby passing pregnant women in their arguments? No doubt fights between men will have taken place regularly, but it is hard to imagine that pregant women were involved. In everyday life such situations are avoided. This is a natural reaction for everyone and especially pregnant women, because they are conscious of their vunerability and will avoid to put their child in a dangerous position. A law of this kind seems unnecessary, or even better: a law of this kind probably never existed, because a non existing incident does not require a law.

S.E. Loewenstamm may well have been right in that the redactor facing this situation combined passages of two laws into one[12]. It seems that the phrasing of the protasis contains elements of two laws. The first words of the protasis of Exod.xxi, 22 are very similar to Exod.xxi, 18. Maybe this protasis was once the beginning of a rule about a quarrel between slaves not hitting a pregnant woman but each other[13]. Possibly, this law eneded with the lex talionis in the verses 24-25[14]. Because slaves could not pay the doctor’s bill in the way free men are required in the law in Exod.xxi, 18-19[15]. This law 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[16]. Among the Jews the slaves got a status similar to free people. This may have resulted in the existence of only one law in case of quarrels between slaves and free men: Exod.xxi:18-19[17]. All this may have caused the redactor to combine the parts and pieces of the disturbed passage together into one law[18].

Now we come to a part of the seond law. This part tells us about a pregant woman who gives birth to “her children”. The first alternative mentions that if there 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[19]. But when she dies, you shall give life for life.

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 this 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 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 did not earn any money.

Gathering from the protasis in the previous law it is not so difficult to imagine the circumstaces in the missing protasis. In the forgoing law the male-slave is the subject. So it is unlikely that in this law the female slave is the subject. This means that the protasis of the original law probably started with the phrase: “And if a man strikes his pregant female slave”. From this it is not so difficult to deduct the intention of ‘our’ law. A genral law to protect the fetus against external injury was not neccessary in biblical times. The fetus was protected by the woman[20]. The pregant female slave, however, was in need of protection. Her master had to act carefully when she was pregnant. If the punishment caused an abortion, he had to pay a fine[21]. But when the punishment resulted in the female slave’s death the master was sentenced to death in the same way as he was sentenced to death when he had killed a male slave (Exod.xxi, 21)[22].

From this passage many have concluded that the life of an unborn was of less value than the life of the mother of the child[23]. Nevertheless, one should keep in mind that the fetus in biblical times had a different moral status than it has nowadays. In early biblical times and in later rabbinical tradition the fetus was regarded as ubar yerekh imo: a part of the woman[24]. This term has a pragmatic and moral background. The pragmatic background simply is that the embryo depends on the woman for his life. Philo gives a beautiful description about this phenomenon[25]. This Alexandrian philosopher also provides us with insight into the moral background of this term. Philo states that there is a principle in biblical law that woman and fetus may not be seperated[26]. Although many have denied that there is such a principle, his reasoning is worth keeping in mind. Philo is quite right that in the laws of Exod.xxi, 4-6 and 22-23 there is a duty not to seperate the mother from her child. Not only because the latter depends on her for his life, but also because the mother protects the fetus against external injury. This protection is based on the principle that none can hurt the fetus without hurting the woman. So every injury of the fetus is an injury to the woman. This turns abortion into a violation of her integrity and is therefore forbidden.

Although the meaning of the term ubar yerekh imo has clearly developed, in early biblical times the fetus was regarded as part of the woman without a life of its own[27]. So, provoking an abortion was not seen as taking a life. Applying the rule that what dies but has a life cannot be killed; abortion was not regarded murder[28]. Of course, pregant women were aware that this theory is false. Nevertheless, this theory is generally accepted until the ideas of Aristotle became known. So the claim that the life of an unborn is of lower value than that of the mother was based on a philosophical theory. Hence it follows, that a change of this philosophy implies a change of the rule. The change of the philosphy becomes clear from the work of the LXX-translator[29].

The Greek translation of Exod.xxi, 22-25 is clearly from the hand of the reviser. He[30] removed several inconsistencies and solved a number of difficulties. In the LXX we read about two men instead of men fighting[31]. Apart from this, the translator changed the plural of  “her children” into the singular “child”[32] . His hand can also be found in the second part. In this he created a readable text. However, keeping our thesis about the oral tradition in mind, he leaves us with a practial problem. The first words of vs.22 are from a different law. If the translator was familiar with the oral tradition why didn’t he follow the original tradition and change the protasis completely as he did with other parts of the text?

The translator was probably acquinted with that original oral tradition. It should be noted however that the oral tradition was due to change. Times changed, the moral standards changed resulting in a different oral tradition. Nevertheless one was aware that the description of the situation of the protasis in the Hebrew version was not practical. So in oral tradition contemporary circumstances were incorporated in the protasis of Exod.xxi, 22. This means that the law protected not only the female slave, but also the pregant woman in general[33]. It seems that the LXX-translator intended to continue this function of the law. Therefore, he closely followed the Hebrew reading. The reason for doing so was that the pregant woman in Hellenistic culture needed to be protected, because in this culture women were often ordered to use “medicine”, in Greek pharmakeia, in Latin veneficium. In both languages the meaning of this tem is “magic” or “drugs”[34]. The drug means a ‘potion of sterility’ used to generate an abortion. This practise of birth control, common in Hellensitic cultures, was forbidden for Jews. It was their mitzvah to increase and multiply.

Generally, the LXX-translator changed the text in order to clear up and explain those inconsistencies[35]. There are two important parts however, where he changed the wording of the text singificantly. Instead of “and there is no fatal injury” (      ) in the first alternative for the consequences the text reads when it is “not formed” (.     ). In the second alternative, it says it is “formed”(    ) instead of “if there is a fatal injury”(   ). This is obviously not a matter of misinterpretation or mistranslation[36] as has been suggested by some[37]. It is far more likely that tte translator followed a new accepted theory about the development of the embryo.

At the time that the translator did his work a new theory was introduced. Aristotle was one of the first philosphers to deny that the fetus was part of a woman, without a life of its own, as others before him believed[38]. 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 limps have their proper qualities and places in the system”[39]. This theory was soon accepted and influenced the idea of the moral status of the embryo. The result of this new theory is present in the LXX version of Exod.xxi 22-23: if one causes an abortion of an embryo that is unformed, a fine is to be paid. If one has caused an abortion of a formed fetus, one is guilty of murder.

Note that this rule is based on the same principle as the Hebrew reading, only the outcome has changed. In the LXX translation, abortion of an unformed fetus, i.e. the fetus that isn’t alive, was not regarded murder. Only abortion of an embryo that is formed and alive was murder[40]. In the original law the difference is the same. Causing the loss of a part of the mother was not regarded killing; only killing of the mother was regarded murder. The old and the new rule were based on the same principle: what is not alive cannot be killed. By means of this law the Jews in the Diaspora were told that the use of pharmakeia was forbidden.

In their commentaries, Philo and Josephus[41] closely followed the LXX-reading. However both were aware that the protasis did not reflect a realistic situation and both freely interpolated an actual situation onto it[42]. Philo interpreted the first two verses as a law against abortion[43] and Josephus followed this example. The lex talionis in the vv. 24-25 was not regarded as part of the law and had no influence on the interpretation of the vv. 22-23. In tannaitic exegesis the last two verses did not have any influence on the interpretation of the law of the pregant woman either. Their interpretation of the first verses is interesting[44]. The tannaim used the law in the discussion to legitimate therapeutic abortion[45]. In the first centuries of our age the commentaries on Exod. Xxi, 22-23 were influenced by a moral discussion about therapeutic abortion. Traces of this discussion can also be found in the works of Philo, Tertulliams De Anima[46] and in the Mekhilta d’rabbi Ishmael.

The technique of abortion was a relief for many women who married at the age of 13 or 14 and became pregant in their early teens. The problems of these early preganancies are obvious. Many women died in labour. Abortion provided a means to save the lives of those women. Abortion was however forbidden by Jews.

Therapeutc abortion, nonetheless, was accepted[47] with the argument that the fetus was regarded a pursuer[48]. Here the principle of the ‘persuer’ or ‘aggressor’. In the sense that a person in pursuit of another in order to kill him may be killed by an onlooker to save the victim, was extended to apply to the case of the early mothers as well”[49]. However, the ‘pursuer-argument’ wasn’t accepted, because an innocent child could not pursue his mother[50]. In the discussion about the function of Exod.xxi, 22 in the Mekhilta d’Ranbbi Ishmael a variant of the ‘pursuer-argument’ was read into the protasis of Exod.xxi, 22, namely, the aberratio ictus. This is a situation in which perion A wanted to hit person B, but missed and struck person C. It could also be a situation in which (A) wanted to hit (B) and not only struck (B), but also (C). It should be noted that this situation wasn’t general or only hypothetical. In tannaitic exegesis the aberration ictus is introduced in a special setting of a pregant woman in need of a therapeutic abortion[51]. 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 danger caused by her pregnancy is the pursuer. The physician (A) saves the woman from her pursuer (B), but he kills the fetus (C) too. The commentary in the Mekhilta d’Rabbi Ishmael reflects this situation. It starts with an anoymous commentary stating that (A) is guity of murder if he kills the innocent person. Rabbi Judah and Rabbi Isaac, however, are convinced that A cannot be blamed for killing C (the fetus) unintentionally if he tries to save the life of the woman. So the aberration ictus freed the physician from punishment. Influenced by socio-, philosphical changes and last but not least by medical developments this law became the locus classicus for the protection of women and the human fetus[52]. The development of this text shows that analysing text from the old testament is not only a metter of an interesting exegesis or a sophisticated linguistic study. It also requires ethical and philosophical descipline. 

Abstract: This study attempts to explain that the original law of Exod. Xxi,22-23 lost its original meaning but never lost is purpose in practical life in biblical and post biblical times. An attempt has been made to demonstrate that there was a clear development in the meaning of the law, because of a change in philosophical ad medical views. The actual situations have been freely interpolated in the protasis, was caused by the fact that the passage comprising this law was seriously disturbed. What was left was the oral tradition. This oral tradition was sensitive to cultural, philosophical and ethical influences. The meaning of the law changed from a law that nce protected the female slave against her master to a law that to the one hand protected the human fetus against criminal abortionabd to the other hand saved the woman in danger of hard labour.

 



[1] R. Westbrook, “Lex talionis and Exodus 21, 22-25”, RB, 93 (1986) 52-69, 53

[2] For a survey of the well-known difficulties see for instance: E.A. Speiser, The Stem of PLL in Hebrew, JBL 82 (1963), 301-306; S.M. Paul, Studies in the Book of the Convenant in the light of Cuneiform and Biblical LawSVT 18, Leiden 1970, 70-77, 108f.; B.S. Jackson, “The Problem of Exod.xxi 22-5”, VT XXIII (1973), 273-304; R. Westbrook, a.l.; S.E. Loewen stamm, “Exodus xxi 22-25”, VT XXVII (19), 352-360. R. Freund, “The Ethics of Abortion in Hellenistic Judaism”, Helios, the journal of the Classical Association of the SouthWest, NS10 (1983), 125-137.

[3] H.W. House, “Miscarriage and Premature Birth: Additional Thoughts on Exodus 21:22-25”, WThJ 41 (1978), 108-23; C. Houtman, Commentaar op het Oude Testament, Exodus 3, Kok, Kampen (1996), 165-171. A notable exception is R. Westbrook, o.c., 55ff.

[4] Nina L. Collins, “Notes on the text of Exodus 22”, VT XLIII (1993), 289-301.

[5] See also: R. Westbrook, o.c., 54: “But what these commentators do not explain is why any ancient compiler would want to reduce two seperate laws to one or turn a previously sensible rule into a less sensible one by additions and corrections. A notable exception is Jackson, who attempts to demonstrate that the original law went though a series of reforms achieved by deliberate interpolation”.

[6] For instance: In the discussion whether the consequences of the blow in the first (and the second) alternative refer to the child or the woman interpreters do not realise that the fetus in early biblical times and in post biblical rabbinic tradition was not regarded as an entity on its own but as a part of the mother. See below for the consequences of this theory.

[7] H.J. Boecker, Recht und Gesetz in Alten Tstament und im Alten Orient, Neukirchen Vluijn, 1984, 116-118

[8] For all the probelms see the studies in note 2.

[9] It is difficult to take B.S. Jacksons thesis for the Urgesetz and the development seriously at all stages. Especially his argument that a newly born cannot lose teeth, once was a reason to change the meaning of the law. B.S. Jackson, o.c., 301: “But the most radical reform was, in this day, the interpolation of Exod.21:24-5. By this device the whole meaning of Exod.21:22-23 was changed. Since the fetus could not have lost a tooth, the word aswn refered to the mother’s death.” It’s hard to image that the fact that a fetus has no tooth once was a reason to change a moral standard and a law. See also the criticism of S.E. Loewenstamm, a.l.

[10] V. Wagner, “Zur Systematiek in dem Codex Ex.21,2-22,1”, ZAW 81 (1969), 176-182; See also: H.J. Boecker, a.l.

[11] Nina L. Collins may be right that the verb nsh has the meaning of a fight between two men (Nina L. Collins, o.c., 299-300). Her thesis implies that the LXX translator understood the original law correctly and did not correct the protasis at this point. The literal text nevertheless implies that at least two men hit the pregnant woman. See also S.E. Loewenstamm, o.c., 356.

[12] S.E. Lowenstamm, o.c., 357

[13] See also Nina L. Collins, o.c., 299. Nina L. Collins states that the use of the verb nsh means “no more than two adversaries are involved”.

[14] Ibid., a.l.: “…Even the provisions of vv.24-25 make sense only when related to damages which men inflicted upon each other in a brawl”.

[15] B.S. Jackson (o.c., 281) is correct in stating that the term talion is rightly applied only where nonfatal bodily injuries are involved, and where the offender is punished by suffering the same injury as the inflicted. Thus, the death penaly for murder is not an example of talion. See also S.E. Loewenstamm, o.c., 359; Contra: Nina L. Collins, o.c., 290

[16] See B.S. Jackson, o.c., 280-284.

[17] A clear evidence for this thesis is found in the commentary of Josephus on this passage. He freely mixed the laws in Ex.21:18-19 and 20-21. Josephus, Ant. Jud. IV, 277.

[18] He possibly changed the original law in one place. Insted of the regular formulation for the death penalty “mut jumat” he used the formulation of the lex talionis in the next versus “life for life” in the second alternative. In doing so he created a natural link with the second part of the law.

[19] The last phrase is a matter of discussion. See for instance: E.A. Speiser, o.c., 303.; B.S. Jackson, o.c., 277; R. Westbrook, o.c., 58-61. I think the specific statements in tannaitic exegesis (Mekhilta d’rabbo Ishmael, a.l.) deserve more respect than many give them. I found no convincing argument why in this phrase       cannot refer to the judges.

[20] The fetus was regarded as a part of the woman. See below for the moral implications.

[21] Its unlikely in the first alternative in the original law law refers to a lifebirth as B.S. Jackson, o.c., 295, 302 suggests. However in later tannitic exegesis this possibility is a consideration. See: Mikhiltha d’rabbi Ishmael, Nezikin 8. For a detailed analysis of the relevant passage: J. te Lindert, Over de status van het menselijk embryo in de joodse en de christelijke ethiek, Slijk-Ewijk, 1998, 68-69.

[22] Note that in this situation the role of the judges also becomes clear. They have to demand the money until the moment the woman is free.

[23] Bruce K. Waltke, “Old Testament text bearing on the issues:”, Birth Control and the Christian, a Protestant symposium on the control of human reproduction, Illionois (1969), 6-21; DM. Feldman, Birth Control and Jewish law, Marital relation, Contraception and Abortion as seth forth in the classic texts of Jewish law, London, 1968, 252-156, l. Jakobovits, Jewish Medical Ethics, New York (1975), 180-185; B.S. Kackson, o.c., 393; Nina L. Collins, o.c., 290.

[24] Hullin 58a; Gittin 231-b; Nazir 51 a; Bava Kamma 78a, Philo, Spec. Leg. III, 117; S. Belkin, Philo and the Oral Law, Massachusetts (1940), 1320133; D.M. Feldman, o.c., 253-255. Thus, killing a fetus was an offence aginst the mother. This fact makes it unlikly that the original law once was a law that protected the fetus as B.S. Jackson ans others have suggested. The law protected the right of the female slave to ahve children. This implies that law protected the fetus [only] indirectly).

[25] Phio, Spec. Leg. III, 1117.

[26] Philo, Quod Deus, 39; De Virtutibus 133-134, 137, 138, 139 Philo refers to Lev.xxiix, 12. See also, Exod.xxiii, 19;xxxiv, 26; Deut. Xiv, 21

[27] The principle that the fetus is regarded as a part of the woman clears up much of the difficulties around the subject/victim in the protasis and the two alternatives. There is only one subject in the law, namely, the woman. Therefore the consequences in the first alternative, “If there is no harm” refers to the woman. She lost a part of the woman (without an identity of his own). The result in the second alternative is that she dies. So there is no need for highly sophisticated theories about the victim in the ‘original’ law as presented by B.S. Jackson, o.c., 293 and Nina L. Collins, o.c., 294.

[28] See the comment of rabbi Izaak on the abertatio ictus in: Mekhilta d’rabbi Ishmael, Nezekin 8. (note that ‘vaible child’ os the opposite of the phase ‘the child born after eight month of pregnancy’. The latter is not regarded a viabe child but as a fetus without any life. See: Mekhilta d’rabbi Ishmael, Nezikin, iv, viii. Nina L. Collins (o.c. 292) in her paper overlooked this fact. For the classic myth around the term ‘the child born after eight month of pregancy’ see: Aristotle, Historia Animalium VII, 4.36; J. Preuss, Biblisch-Talmudisches Medizin (1911), 456; J.H. Waszink, De Anima, 428-429. For more information about this issue, see: J. te Lindert, o.c., 63-67).

[29] S. Belkin (a.l.) correctly states that the fetus is regarded as a part of the mother, nevertheless it had the legal status of a human being. (That is to say after the theory of Aristotle became known and accepted. See below).

[30] E. Tov, The text-critical use of the Septuagint in biblical research, Jerusalem, 1981, 80: “... the reader should realise that the more one knows about the nature of translation, and the more thoroughly innertranslational deviations are analysed, the less one is inclined to ascribe translational deviations to Hebrew variants”...”...the notion of deviations from MT in the LXX is taken in the widest sense, the majority of them derives from translators’ exegesis and techniques and from innertranslational developments”, lbid, o.c.., 81.

[31] See note 11 above.

[32] His hand can also be found in the second part of the vs.22 and vs.23. See: J.G. te Lindert, o.c., 31-33.

[33] In this way, the law is later used by philosophers and rabbis. Moreover it becomes an exigetical rule: the qol wakhomer. Clear examples are the commentaries of Philo and Josephus on this law. Philo changed the protasis in a situation in which one man hurts a pregnant woman. Jospehus is probaly aware of the oral tradition of the original law. Josephus, Ant. Jud. IV 216.

[34] J.T. Noonan, Contraception, a history of its treatment byt he catholic theologians and canonists, London (1986), 25, 44-45.

[35] See also note 10 above.

[36] At other parts where the term     ‘aswn is used (Gen. 42:4,38; 44: 29), the translator used a plausibe term: malakai, ‘fatal injury’,.

[37] See for instance: I. Jakobovits, o.c., 180

[38] Aristotle, Generatione Animalium I.20.728b 34; I.23.731a 1-15; II.6.743b 20-25

[39] Philo, Spec. Leg.III, 108.

[40] Nina I. Collins, o.c., 292

[41] Although Josephus used the Hebrew reading in his commentary on this passage mainly leans on the work of Philo, see: J. te Lindert, o.c., 50-57.

[42] In Cong. Erud. 137 Philo closely follows the reading in the Septuagint. In Spec. Leg.III, 108-109 he interpolates an actual situation in the protasis: “When a man fights with a pregnant woman and gives her a blow on her belly..”.

[43] Philo, Specialibus Legibus iii, 117.

[44] See also S.E. Loewenstamm, o.c., 357: “Tannaitic exegesis reflects the practise of Biblical law with greater fidelity than the actual wording of the law in the Bible does..”

[45] See J. te Lindert, o.c., 58-74; 116-136.

[46] Tertullian, De Anima, 25.5.

[47] The wellknown rule is found in M. Oholoth VII.6. See for an analyses of this passage J. te Lindert, o.c., 122-136. See also: Mishna Nidda III.5; Tosefta Yevamoth IX.4.

[48] M. Sanhedrin 8. 6-7; Sanhedrin 72b.

[49] D.M. Feldman, o.c., 275.

[50] Mekhilta Nezikin IV; Shabbat XIV, 4; Sanhedrin VIII, 9.

[51] See J. te Lindert, o.c., 128-131.

 

[52] Note that today’s (rabbinic) interpretation heavily leans on the interpretation of Josephus and Rashi. Rashi, Yad Ramah and Me’eri on Sanhedrin 72b, See also D.M. Feldman, o.c., 254-255. 

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