Torah Before Sinai

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The Law was given at Sinai. But what was the situation before Sinai? Was there no law then? Were the patriarchs free to do what they pleased, free from the constraints of law?

More than 2,000 years ago, perhaps just as the ink used to write the Torah was drying, the first interpreters of biblical texts began to ask these questions. They came up with some intriguing answers.

As the biblical text now stands, Israel received the complete legislative pattern for her existence at Sinai: the Ten Commandments (Exodus 20) and a complete legal code governing nearly every aspect of religious and political life—a blueprint for ideal human existence.

Rashi, perhaps the greatest Jewish biblical commentator of the medieval period, wondered why the Bible didn’t begin with the Ten Commandments.^a If the Sinaitic revelation is so significant, why do we have to wade through nearly 70 chapters of introductory narrative before reaching this momentous episode?

But this is a narrative question. We focus here on a legal question: If the patriarchs were ignorant of the Law, how could they be responsible for following it? The completeness of the Sinai revelation assumes that before that time the patriarchs were ignorant of God’s 040will. The biblical texts don’t provide even a rudimentary code of morals prior to the Sinai revelation.

Both early Jewish and Christian interpreters of the Bible presupposed that God punished only individuals who intentionally violated a known commandment. No one stated this principle more succinctly than Paul, the first-century Jew-turned-Christian: “For where there is no [Sinaitic] law, there is no violation” (Romans 4:15). Likewise, almost all Jewish legal thinkers of this period distinguished between intentional and unintentional sins. Intentional sins were clearly more problematic than unintentional ones and called for more severe and direct forms of punishment.

For example, in the Dead Sea Scroll known as the Community Rule, a document that purports to be a foundational text for the organization of a community, anyone who commits an intentional sin is expelled permanently:

[If] any of those who enter the holy council, who walk in the perfect path as was commanded, should transgress a matter of the Torah of Moses with a high hand or treacherously, then he shall be expelled from the council of the community and he shall never return.

Community Rule 8:21–22

Other sources take a gentler position, but even they are quick to emphasize that forgiveness is most readily available to those who have sinned unintentionally. Consider, for example, the Testament of Levi. This apocryphal text, which goes back at least to the first century B.C.E., tells us that next to God’s personal throne are angels who “make expiation to the Lord for all the sins committed unwittingly by the righteous” (Testament of Levi 3:6). This Jewish teaching is close to Paul’s description of his own situation: “Even though I was formerly a blasphemer, a persecutor, and a man of violence, [yet] I received mercy because I had acted ignorantly in unbelief” (1 Timothy 1:13). Similarly Luke: “Father, forgive them; for they know not what they do” (Luke 23:34; see also Acts 3:17, 17:30).

The most explicit attestation of this idea in the early church is found in Hebrews: “For if we willfully persist in sin after having received the knowledge of the truth, there no longer remains a sacrifice for sins [to expiate the sin], but a fearful prospect of judgment and a fury of fire that will consume the adversaries” (Hebrews 10:26–27). The early church understood this text to refer to a Christian who sinned after taking his initial baptismal vows to walk in the way of Christ. At baptism past sins were forgiven, no matter their gravity. Yet this moment of forgiveness introduced a new life that demanded a far higher level of accountability. Those who sinned in a high-handed fashion after their baptism were “lapsed.” Could they be forgiven again, or did their intentional sins require them to be expelled from the community? Eventually the church decided on the more moderate position, but the matter was debated hotly for the first few centuries of the Common Era.

The rabbis also struggled with these questions as they applied the doctrine of intentionality in their interpretation of Scripture. The belief that without knowledge there is no intention allowed the rabbis to explain, for example, why Moses destroyed the first set of tablets he received from God on Mount Sinai. After all, Moses didn’t drop the heavy tablets accidentally at the shock of seeing his people worshiping the Golden Calf. The text is quite explicit: “He threw the tablets from his hands and broke them” (Exodus 32:19). This he did to tablets written with the finger of God (Exodus 32:16)! What could possibly justify such behavior?

One rabbinic midrash contains this explanation:^b

When he beheld that offense that [Israel] committed in the making of the Golden Calf, he said to himself, “How can I give them the Tablets of the Law? I shall be obligating them to major commandments and condemning them to death at the hands of Heaven; for thus is it written in the Commandments, ‘Thou shalt have no other gods before Me.’”

Only by breaking the tablets could Moses save the people from destruction.

If Moses had given the Israelites the tablets of the Law, they would have had knowledge of the 041Law and would have been guilty of intentional sin—violating the explicit commandment “Thou shall have no other gods beside me!” Such a violation carried the ultimate penalty, death. Moses, thinking quickly on his feet, smashed the tablets so that Israel’s sin would not be conscious and, therefore, her violation would be reckoned a lesser offense.

By taking the concept of intentionality and its close relationship to knowledge of the Law into account, early Bible interpreters could explain why the heinous sins of the patriarchs in Genesis went unpunished: The patriarchs could not be held accountable for violating the Law they did not know.

We will look at three examples:

The first concerns Jacob’s son Reuben, whose offense is told in a single verse: “Reuben went and lay with Bilhah his father’s concubine; and Israel heard of it” (Genesis 35:22). That’s all. No more is said about it in the biblical text. Why wasn’t Reuben punished? And what about Bilhah? Shouldn’t she have been punished too?

The Book of Jubilees, another book of Jewish apocrypha, answers these questions implicitly. Sometimes called the Rewritten Bible, Jubilees retells the biblical stories with midrashic elaborations.^c As told in Jubilees:

When Reuben saw Bilhah, Rachel’s maid—his father’s concubine, bathing in a private place, he loved her. At night he hid. He entered Bilhah’s house at night and found her lying alone in her bed and sleeping in her tent. After he had lain with her, she awakened and saw Reuben was lying with her in the bed. She uncovered the edge of her (clothing), took hold of him, shouted out, and realized that it was Reuben. She was ashamed because of him. Once she had released her grip on him, he ran away. She grieved terribly about this matter and told no one at all. When Jacob came and looked for her, she said to him: “I am not pure for you because I am too contaminated for you, since Reuben defiled me and lay with me at night. I was sleeping and did not realize (it) until he uncovered the edge of my (garment) and lay with me.”…And therefore Jacob did not draw near her since Reuben had defiled her.

Jubilees 33:2–9

Bilhah is unaware that it was Reuben who lay with her because he came to her in the middle of the night. She thinks her lover is none other than her husband, Jacob. Bilhah’s role is quite innocent; she was shamefully violated. (Laban pulled a similar trick on Jacob when he substituted Leah for Rachel on Jacob’s wedding night [Genesis 29:22–25].) Nevertheless, whether she intended to or not, she committed a wrong and had to suffer the consequences. In the Book of Jubilees she is merely separated from her husband—not punished by death.

But if Bilhah is exonerated because of her lack of intentionality, we would expect Reuben to be treated with a heavy hand, for his act was premeditated. Yet he is not punished, because a specific law dealing with this type of behavior is not revealed until Sinai, when Moses informs the children of Israel that the punishment for this act is death. For such defilement there is no forgiveness, Jubilees tells us, quoting the Bible: “Let any man who lies with his father’s wife be cursed” (Deuteronomy 27:20).

Why do we hear nothing of Reuben’s punishment in the Bible? Or, in the context of Jubilees, why wasn’t Reuben punished even in the rewritten account? Jubilees explains:

They are not to say: “Reuben was allowed to live and (have) forgiveness after he had lain with the concubine while she had a husband and her husband—his father Jacob—was alive.” For the statute, the punishment, and the law had not been completely revealed but (only) in your time as a law of its particular time and as an eternal law for the history of eternity.

Jubilees 33:15–16

This raises a complicated query, the kind so typical of keen-minded early Jewish commentators: Why was it necessary to exonerate Bilhah by expanding the story to say that she slept with Reuben unknowingly? After all, if the Law had not yet been given, she could easily be exonerated too. Why isn’t she? Is the writer a misogynist, exonerating Reuben on grounds that he fails to apply to Bilhah?

Jubilees provides a reason why Bilhah could not be exonerated on the same grounds as Reuben. In the biblical story of Judah and Tamar (Genesis 38), Judah refuses to give his third son to Tamar after her two previous husbands, both sons of Judah, had died. Judah fears that his third son will die if he too marries Tamar. Yet Judah’s levirate obligation is to give the brother of the deceased sons to Tamar so that the deceased would have an heir. When Judah refuses to fulfill this obligation, Tamar disguises herself as a prostitute and entices the widower Judah to bed with her; in this way she becomes pregnant with an heir. Judah threatens to burn Tamar for her impropriety until she tells him 043he is the child’s father. Then Judah admits, “She is more right than I” (Genesis 38:24–26).

This is all in the biblical text. The author of Jubilees must have asked himself on what basis Judah proposed that Tamar be burned. To provide an answer, the author of Jubilees placed in Abraham’s mouth an instruction about what to do to a woman caught in adultery: Burn her! (Jubilees 20:4).

The author of Jubilees applies this punishment only to women because he is working within the restraints of the biblical text. The biblical text contains no indication of a punishment for Reuben, but Judah threatens to burn Tamar. Apparently, only women were punished for sexual impropriety before Sinai. After Sinai the same rule applied to the sexual impropriety of both men and women.

That’s why the author of Jubilees had to find some reason to exonerate Bilhah other than the absence of the Law that applied to Reuben. Thus the midrash that Bilhah’s transgression was unknowing and unintentional: In the dark, she didn’t know it was Reuben, rather than her husband, who had slipped into her bed.

Our last examples take us again to the Dead Sea Scrolls, this time to the Damascus Document. Seven copies were found at Qumran; it was clearly very important to the Jewish sectarians. All these copies are fragmentary, however; a more complete copy was found 50 years earlier in a Cairo synagogue.^d

The story of David and Bathsheba provides another problem for the early biblical exegete, who comes up with another ingenious solution. David seems to consciously violate two commands within the Torah. First, he has an adulterous relationship with Bathsheba (2 Samuel 11–12), and, second, he marries multiple times, an act explicitly forbidden in Deuteronomy 17:17. Why wasn’t David put to death for an act he must have known was wrong? The Damascus Document answers that the books of the Law had been sealed in the Ark from the time of Joshua until the time of King Josiah of Judah (seventh century B.C.E.), when they were rediscovered and republished (see 2 Kings 22). The Laws were thus, at some level, “unknown.” David’s violation of Bathsheba could be construed as an inadvertent, and therefore forgivable, sin (Damascus Document 5:5–6).

The Damascus Document also deals with Exodus 1:16, in which Pharaoh orders Hebrew midwives to kill all male children. In the most straightforward reading of the text, Israel’s suffering is unmerited; it results from Pharaoh’s wickedness. But for the author of the Damascus Document, the severe punishment of Israel was deserved; hence, he had to find a sin that would justify this punishment.

He notes that in the Bible Jacob’s sons are treated very differently from his grandsons. Though the sons are guilty of grave sins, they receive light punishment, whereas the grandsons suffer far more severely. Regarding the sons’ light punishment, he writes, “[They inadvertently] strayed from [the commandments] and were punished according to their unintentional errors” (Damascus Document 3:4–5). They did not know about the Law, which had not yet been revealed at Sinai.

But the grandsons also lived before Sinai. What reason within the biblical text warranted their harsher punishment? In Egypt, says the Damascus Document, the grandsons “walked with a stubborn heart taking council against God’s commandments, each doing what was right in his own eyes. They ate blood and so their males were cut off” (Damascus Document 3:8–9).

Even before Sinai the eating of blood was forbidden by a clear and public command given to Noah and his sons after the flood subsided (Genesis 9:4). Indeed, this is one of the so-called Noahide laws, applicable to non-Jews (like Noah and his sons) and to Jews alike. In this way the author of the Damascus Document justifies the punishment Pharaoh meted out to the male children of Israel: The grandsons who had eaten blood were “cut off” because of their willful violation of a known statute.

We have taken a journey into the exegetical world of the early Jews and Christians. We have explored how they made sense of the punishments and non-punishments especially in the time before Sinai. They confronted two types of difficulties: Some who sinned didn’t suffer any punishment. This happened, they explained, because the sins were by definition unintentional, since the laws in question had not yet been revealed. But having said that, how could they explain why some biblical figures were penalized for transgressions before Sinai, before they knew that 044their acts were transgressions? The commands to burn Tamar and to slay all the firstborn in Egypt fall into this second category. The exegetes resolved these cases by either creating a pre-Sinaitic law forbidding the behavior (and putting such a law in the mouth of an early patriarch like Abraham) or having the persons in question violate one of the few prohibitions the Bible itself says were given in the pre-Sinaitic era, such as the prohibition against eating blood.