In the following pages it is proposed to discuss the place in history of the "law of Moses;" more precisely, the question to be considered is whether that law is the starting-point for the history of ancient Israel, or not rather for that of Judaism, ie., of the religious communion which survived the destruction of the nation by the Assyrians and Chaldaeans.
I. It is an opinion very extensively held that the great mass of the books of the Old Testament not only relate to the pre-exilic period, but date from it. According to this view, they are remnants of the literature of ancient Israel which the Jews rescued as a heritage from the past, and on which they continued to subsist in the decay of independent intellectual life. In dogmatic theology Judaism is a mere empty chasm over which one springs from the Old Testament to the New; and even where this estimate is modified, the belief still prevails in a general way that the Judaism which received the books of Scripture into the canon had, as a rule, nothing to do with their production. But the exceptions to this principle which are conceded as regards the second and third divisions of the Hebrew canon cannot be called so very slight. Of the Hagiograpba, by far the larger portion is demonstrably post-exilic, and no part demonstrably older than the exile. Daniel comes as far down as the Maccabaean wars, and Esther is perhaps even later. Of the prophetical literature a very appreciable fraction is later than the fall of the Hebrew kingdom; and the associated historical books (the "earlier prophets" of the Hebrew canon) date, in the form in which we now possess them, from a period subsequent to the death of Jeconiah, who must have survived the year 560 B.C. for some time. Making all allowance for the older sources utilised, and to a large extent transcribed word for word, in Judges, Samuel, and Kings, we find that apart from the Pentateuch the preexilic portion of the Old Testament amounts in bulk to little more than the half of the entire volume. All the rest belongs to the later period, and it includes not merely the feeble after-growths of a failing vegetation, but also productions of the vigour and originality of Isa. xl.lxvi. and Ps.Ixxiii.
We come then to the Law. Here, as for most parts of the Old Testament, we have no express information as to the author and date of composition, and to get even approximately at the truth we are shut up to the use of such data as can be derived from an analysis of the contents, taken in conjunction with what we may happen to know from other sources as to the course of Israel's history. But the habit has been to assume that the historical period to be considered in this connection ends with the Babylonian exile as certainly as it begins with the exodus from Egypt. At first sight this assumption seems to be justified by the history of the canon; it was the Law that first became canonical through the influence of Ezra and Nehemiah; the Prophets became so considerably later, and the Hagiographa last of all. Now it is not unnatural, from the chronological order in which these writings were received into the canon, to proceed to an inference as to their approximate relative age, and so not only to place the Prophets before the Hagiographa, but also the five books of Moses before the Prophets. If the Prophets are for the most part older than the exile, how much more so the Law! But however trustworthy such a mode of comparison may be when applied to the middle as contrasted with the latest portion of the canon, it is not at all to be relied on when the first part is contrasted with the other two. The very idea of canonicity was originally associated with the Torah, and was only afterwards extended to the other books, which slowly and by a gradual process acquired a certain measure of the validity given to the Torah by a single public and formal act, through which it was introduced at once as the Magna Charta of the Jewish communion (Nehemiah viii.-x.) In their case the canonical— that is, legal—character was not intrinsic, but was only subsequently acquired; there must therefore have been some interval, and there may have been a very long one, between the date of their origin and that of their receiving public sanction. To the Law, on the other hand, the canonical character is much more essential, and serious difficulties beset the assumption that the Law of Moses came into existence at a period long before the exile, aml did not attain the force of law until many centuries afterwards, and in totally different circumstances from those under which it had arisen. At least the fact that a collection claiming public recognition as an ecclesiastical book should have attained such recognition earlier than other writings which make no such claim is no proof of superior antiquity.
We cannot, then, peremptorily refuse to regard it as possible that what was the law of Judaism may also have been its product; and there are urgent reasons for taking the suggestion into very careful consideration. It may not be out of place here to refer to personal experience. In my early student days I was attracted by the stories of Saul and David, Ahab and Elijah; the discourses of Amos and Isaiah laid strong hold on me, and I read myself well into the prophetic and historical books of the Old Testament. Thanks to such aids as were accessible to me, I even considered that I understood them tolerably, but at the same time was troubled with a bad conscience, as if I were beginning with the roof instead of the foundation; for I had no thorough acquaintance with the Law, of which I was accustomed to be told that it was the basis and postulate of the whole literature. At last I took courage and made my way through Exodus, Leviticus, Numbers, and even through Knobel's Commentary to these books. But it was in vain that I looked for the light which was to be shed from this source on the historical and prophetical books. On the contrary, my enjoyment of the latter was marred by the Law; it did not bring them any nearer me, but intruded itself uneasily, like a ghost that makes a noise indeed, but is not visible and really effects nothing. Even where there were points of contact between it and them, differences also made themselves felt, and I found it impossible to give a candid decision in favour of the priority of the Law. Dimly I began to perceive that throughout there was between them all the difference that separates two wholly distinct worlds. Yet, so far from attaining clear conceptions, I only fell into deeper confusion, which was worse confounded by the explanations of Ewald in the second volume of history of Israel. At last, in the course of a casual visit in Gottingen in the summer of 1867, I learned through Ritschl that Karl Heinrich Graf placed the law later than the Prophets, and, almost without knowing his reasons for the hypothesis, I was prepared to accept it; I readily acknowledged to myself thc possibility of understanding Hebrew antiquity without the book of the Torah.
The hypothesis usually associated with Graf's name is really not his, but-that of his teacher, Eduard Reuss. It would be still more correct to call it after Leopold Gcorge and Wiihelm Vatke, who, independent alike of Reuss and of each other, were the first to give it literary currency. All three, again, are disciples of Martin Lebrecht de Wette, the epochmaking pioneer of historical criticism in this field./1/
— Footnote 1. M. W. L. de Wette, Beitraege zur Einleitung in das A. T. (Bd. I. Kritischer Versuch ueber die Glaubwuerdigkeit der Buecher der Chronik; Bd. II. Kritik der Mosaischen Geschichte, Halle, 1806-07); J. F. L. George, Die alterer Juedischen Feste mit einer Kritik der Gesetzgebung des Pentateuch (Berlin, 1835; preface dated 12th October); W. Vatke, Die biblische Theologie wissenschaftlich dargestellt (Berlin, 1835; preface dated 18th October; publication did not get beyond first part of the first volume); K. H. Graf, Die geschichtlicher Buecher des Alten Testaments (Leipsic, 1866). That Graf as well as J. Orth (Nouv. Rev. de Theol., iii. 84 sqq., iv. 350 sqq., Paris, 1859-60) owed the impulse to his critical labours to his Strassburg master was not unknown; but how great must have been the share of Reuss in the hypothesis of Graf has only been revealed in 1879, by the publication of certain theses which he had formulated as early as 1833, but had hesitated to lay in print before the general theological public. These are as follows:— "1. L'element historique du Pentateuque peut et doit etre examine a part et ne pas etre confondu avec l'element legal. 2. L'un et l'autre ont pu exister sans redaction ecrite. La mention, chez d'anciens ecrivains, de certaines traditions patriarcales ou mosaiques, ne prouve pas l'existence du Pentateuque, et une nation peut avoir un droit coutumier sans code ecrit. Les traditions nationales des Israelites remontent plus haut que les lois du Pentateuque et la redaction des premieres est anterieure a celle des secondes. 4. L'interet principal de l'historien doit porter sur la date des lois, parce que sur ce terrain il a plus de chance d'arriver a des resultats certains. II faut en consequence proceder a l'interrogatoire des temoins. 5. L'histoire racontee, dans les livres des Juges et de Samuel, et meme en partie celle comprise dans les livres des Rois, est en contradiction avec des lois dites mosaiques; donc celles-ci etaient inconnues a l'epoque de la redaction de ces livres, a plus forte raison elles n'ont pas existe dans les temps qui y vent decrits. 6. Les prophetes du 8e et du 7e siecle ne savent rien du code mosaique. 7. Jeremie est le premier prophete qui connaisse une loi ecrite et ses citations rapportent au Deuteronome. 8. Le Deuteronome (iv.45-xxviii.68) est le livre que les pretres pretendaient avoir trouve dans le temple du temps du roi Josias. Ce code est la partie la plus ancienne de la legislation (redigee) comprise dans le Pentateuque. 9. L'histoire des Israelites, en tant qu'il s'agit du developpement national determine par des lois ecrites, se divisera en deux periodes, avant et apres Josias. 10. Ezechiel est anterieur a la redaction du code rituel et des lois qui ont definitivement organise la hierarchie. 11. Le livre du Josue n'est pas, tant s'en faut, la partie la plus recente de l'ouvrage entier. 12. Le redacteur du Pentateuque se distingue clairement de l'ancien prophete Moyse." —L'Histoire Sainte et la Loi, Paris, 1879, pp. 23, 24. — Footnote
He indeed did not himself succeed in reaching a sure position, but he was the first clearly to perceive and point out how disconnected are the alleged starting-point of Israel's history and that history itself. The religious community set up on so broad a basis in the wilderness, with its sacred centre and uniform organisation, disappears and leaves no trace as soon as Israel settles in a land of its own, and becomes, in any proper sense, a nation. The period of the Judges presents itself to us as a confused chaos, out of which order and coherence are gradually evolved under the pressure of external circumstances, but perfectly naturally and without the faintest reminiscence of a sacred unifying constitution that had formerly existed. Hebrew antiquity shows absolutely no tendencies towards a hierocracy; power is wielded solely by the heads of families and of tribes, and by the kings, who exercise control over religious worship also, and appoint and depose its priests. The influence possessed by the latter is purely moral; the Torah of God is not a document in their hands which guarantees their own position, but merely an instruction for others in their mouths; like the word of the prophets, it has divine authority but not political sanction, and has validity only in so far as it is voluntarily accepted. And as for the literature which has come down to us from the period of the Kings, it would puzzle the very best intentions to beat up so many as two or three unambiguous allusions to the Law, and these cannot be held to prove anything when one considers, by way of contrast, what Homer was to the Greeks.
To complete the marvel, in post-exile Judaism the Mosaism which until then had been only latent suddenly emerges into prominence everywhere. We now find the Book regarded as the foundation of all higher life, and the Jews, to borrow the phrase of the Koran, are "the people of the Book;" we have the sanctuary with its priests and Levites occupying the central position, and the people as a congregation encamped around it; the cultus, with its burnt-offerings and sin-offerings, its purifications and its abstinences, its feasts and Sabbaths, strictly observed as prescribed by the Law, is now the principal business of life. When we take the community of the second temple and compare it with the ancient people of Israel, we are at once able to realise how far removed was thc latter from so-called Mosaism. The Jews themselves were thoroughly conscious of the distance. The revision of the books of Judges, Samuel, and Kings, undertaken towards the end of the Babylonian exile, a revision much more thorough than is commonly assumed, condemns as heretical the whole age of the Kings. At a later date, as the past became more invested with a certain nimbus of sanctity, men preferred to clothe it with the characters of legitimacy rather than sit in judgment upon it. The Book of Chronicles shows in what manner it was necessary to deal with the history of bygone times when it was assumed that the Mosaic hierocracy was their fundamental institution.
2. The foregoing remarks are designed merely to make it plain that the problem we have set before us is not an imaginary one, but actual and urgent. They are intended to introduce it; but to solve it is by no means so easy. The question what is the historical place of the Law does not even admit of being put in these simple terms. For the Law, If by that word we understand the entire Pentateuch, is no literary unity, and no simple historical quantity./1/
— Footnote 1. Compare the article "Pentateuch" in the Ninth edition of the Encyclopaedia Britannica, vol. xviii. — Footnote