Parashat Devarim starts with an introduction:
א אלה הדברים אשר דבר משה אל כל ישראל בעבר הירדן; במדבר בערבה מול סוף בין פארן ובין תפל ולבן וחצרת ודי זהב׃
ב אחד עשר יום מחרב דרך הר שעיר עד קדש ברנע׃
ג ויהי בארבעים שנה בעשתי עשר חדש באחד לחדש; דבר משה אל בני ישראל ככל אשר צוה ה׳ אתו אלהם׃ דברים פרק א
What does the word דברים refer to? The pasuk later implies that it the the laws that follow, that make up the bulk of ספר דברים:
בעבר הירדן בארץ מואב הואיל משה באר את התורה הזאת לאמר׃
But before we get to those laws in פרק ה, there’s a parasha and a half of historical introduction. Why?
Yaakov Tzvi Mecklenburg brings the most obvious explanation, that אלה הדברים refers to the entire book, which is composed of three broad parts:
אלה הדברים: דע כי חמשת פסוקים הראשונים הם הקדמה של כל הספר. ויש בהם שלשה פעמים לשון דבורו של משה, אשר דבר משה, דבר משה אל בנ״י, הואיל משה באר, כי יש בספר זה ג׳ חלקים. חלק הא׳ מתחלת הספר עד ויקרא שקודם עשרת הדברות והוא מדבר בעניני מוסר. חלק הב׳ מן ויקרא עד הברכות והקללות שבכי תבא והוא מדבר מהמצות, לכן אמר שם תחלה אלה העדות והחקים וגו׳ שהוא ענין אחד עם מ״ש אחריו ויקרא משה. חלק הג׳ מן הברכות והקללות עד סוף התורה . הכתב והקבלה, דברים א:א
The historical part ends with Moshe actually doing a מצוה (setting up the ערי מקלט) then listing the actual מצות:
אלה העדת והחקים והמשפטים אשר דבר משה אל בני ישראל בצאתם ממצרים׃
ויקרא משה אל כל ישראל ויאמר אלהם שמע ישראל את החקים ואת המשפטים אשר אנכי דבר באזניכם היום; ולמדתם אתם ושמרתם לעשתם׃
And the third part is the ceremonies surrounding the curses and blessings (including the very long תוכחה in כי תבוא).
ויצו משה את העם ביום ההוא לאמר׃
However, Rashi, based on the targumim, say אלה הדברים refers only to the historical introduction. It’s Moshe’s deathbed rebuke of Israel, when he retells their history highlighting everything that went wrong:
אִלֵּין פִּתְגָמֵי אוֹכָחוּתָא דִי מַלֵּיל משֶׁה עִם כָּל יִשְׂרָאֵל…
תרגום יונתן, דברים א:א
אִלֵין פִּתְגָמַיָא דִי מַלֵּיל משֶׁה עִם כָּל יִשְׂרָאֵל הוֹכַח יַתְהוֹן עַד דְּהִינוּן יָתְבִין בְּעִיבְרָא דְיוֹרְדְּנָא…
תרגום ירושלמי, דברים א:א
אלה הדברים : לפי ש הן דברי תוכחות ומנה כאן כל המקומות שהכעיסו לפני המקום בהן, לפיכך סתם את הדברים והזכירם ברמז מפני כבודן של ישראל. רש״י, דברים א:א
And the list of laws is a completely separate thing:
אלה העדות וגו׳ אשר דבר: הם הם אשר דבר בצאתם ממצרים חזר ושנאה להם בערבות מואב. רש״י,דברים ד:מה
Ibn Ezra and Ramban take the opposite approach. אלה הדברים refers to the laws, as is says, הואיל משה באר את התורה.
והישר בעיני, שפירושו ”אלה הדברים“, שהם דברי המצות הכתובים בפרשת ראה אנכי, ושופטים, וכי תצא, והיה כי תבוא.
אבן עזרא, דברים א:א
אלה הדברים אשר דבר משה אל כל ישראל: על המצות אשר יזכיר בכל הספר מתחלת עשרת הדברות בפרשת ואתחנן, כמו שאמר (פסוק ה) הואיל משה באר את התורה הזאת לאמר, כי על התורה ידבר. רמב״ן, דברים א:א
Then why include the introduction? Ramban says they need the rebuke to emphasize the importance of obeying the laws going forward:
אמר להם בתחלת דבריו, ”ה׳ אלקינו דבר אלינו בחורב“ אחרי שנתן לנו עשרת הדברים שנכבוש הארץ מיד ונעבור את הירדן, וחטאתיכם גרמו לכם זה וזה. ונמשכו דברי הפתיחה הזאת, עד שהשלים בהם בפסוק ”ושמרת את חקיו ואת מצותיו אשר אנכי מצוך היום אשר ייטב לך ולבניך אחריך ולמען תאריך ימים על האדמה אשר ה׳ אלקיך נותן לך כל הימים“ (להלן ד:מ). אז קרא משה אל כל ישראל אשר היו לפניו ואמר (להלן ה:א) שמע ישראל את החקים ואת המשפטים אשר אנכי דובר באזניכם היום.
רמב״ן, דברים א:א
קודם שיפתח להם בביאור התורה כלל, הוכיח אותם בעונות אשר גרמו להם רעה ולא נמחלו.
רמב״ן, דברים ט:ח
Having said that he will explain the Torah, Moses wanted the people to understand the importance of heeding his words and not relying on their righteousness to guarantee their future success. He began, therefore, by chastising them for the sins that had caused harm and had not yet been forgiven [at least, not completely]…
Artscroll Chumash, Devarim 1:5
Even though the people had survived disobeying ה׳, they already had two strikes against them (the Golden Calf and the Spies). In both cases, ה׳ had said that He would remember that sin when responding to future sins; תשעה באב is the echo of the latter through history.
Rabbi Joshua Berman of Bar-Ilan has a fascinating understanding of אלה הדברים: it refers to the entire book, through the end of כי תבוא:
אלה דברי הברית אשר צוה ה׳ את משה לכרת את בני ישראל בארץ מואב; מלבד הברית אשר כרת אתם בחרב׃
is דברי הברית. The covenantal document starts with a historical introduction because that’s the way these things are done. Everyone expected it. He bases this on Hittite documents from the fourteeenth century ( over 30,000 clay tablets have been discovered in the Hittite capital of Hattusa).
It is commonplace that the Torah speaks of a
brit that was formed between God and Israel at Sinai. But just what is a brit? Translating brit into English, “covenant” is of little help, and merely begs the question then, of what is a “covenant’? More to the point, we should note the unusual dynamics present in this relationship. Brit seems to be a compact, contract, or pact between two parties. Yet, in modern times both sides to a contract freely enter the agreement and each side has the right to decline entering the agreement, if it wishes. While Israel at Sinai expresses its agreement—na’aseh ve-nishma—it is also plain that she had little choice but to do so. Put differently, what we have at Sinai is a form of agreement where the parties are unequal, and where the lesser side (Israel) is expected to agree to the terms dictated by the stronger side (G-d). On the other hand, it seems that the stronger side is not tyrannical or cruel, but seeks a genuine relationship with the lesser side, but on His terms. There is no modern counterpart to this type of relationship.
However, we do see precisely this type of relationship in political treaties of the late second millennium BCE, the proposed period of the bondage, Exodus and settlement of the Land. This type of relationship—bi-lateral but fundamentally between unequals; dictated, yet while establishing a positive relationship between the parties—is found in what are known as the vassal treaties of the period, between stronger and lesser kings. The Torah articulates the relationship between God and Israel as one between a great king and a lesser king engaged in just such a treaty.
Joshua Berman, Rethinking Orthodoxy and Biblical Criticism III
He points out the elements of a Hittite vassal treaty were:
The Historical Prologue
Deposit of the Treaty in the Temple
Witnesses to the Treaty
Blessings and Curses
The similarity to the structure of ספר דברים is striking.
The vassal treaty was essentially a contract between sovereign and vassal, and many of the basic elements of our contracts are found in these treaties. Just as they listed stipulations that obligated each side, so do the contracts that we draw up today. They imposed penalties for breach of contract—through the form of curses—and so do we, through fines. They sought outside authority to back up the clauses—through divine witnesses—and so do we, through a notary.
However, there is one element of the ancient treaty form that finds no parallel in the contracts that we write: the historical prologue which described the events that led to the establishment of the treaty…Our contacts today are “strictly business.” Why do these ancient contracts go to length to tell of the events leading up to the treaty?
More background is necessary to understand the function of these compositions. The world in which these treaties arose—the eastern Mediterranean rim of the fourteenth and thirteenth centuries BCE is the first in which we find an international order…[It is] the first time that city-states in this region were acutely aware that they would be much better off establishing alliances with even distant neighbors than merely trying to go it alone. During this period, there were two regional powers: the Hittite empire, based in modern day Turkey, to the north and Egypt, a perennial powerhouse, to the south. At this time, the Hittite empire and Egypt played the roles of the sovereign. A large assortment of small city-states throughout the Levant—modern day Israel, Lebanon and Syria—would sign on as vassals to these larger states.
This brings us to the historical prologue of the Hittite Empire vassal treaties. When court scribes of the Hittite kings wrote these brief histories, they certainly weren’t doing so for the sake of historians who would live 3200 years later. They did so for the purpose of diplomatic signaling, of setting a tone for the relationship with the vassal. Leaders today do it as well. When a leader visits another country, there may well be contracts signed and deals done. But part of what goes on in such a visit is to establish a tone for the relationship.
In the fourteenth and thirteenth centuries BCE, this type of diplomatic signaling between states was a critical component of statecraft. If I am a Hittite king, I am looking to establish a relationship with a potential vassal on the best terms possible. I find a vassal who is willing to sign with me, and we conclude a treaty with one another. Now the question becomes: what messages do I want to convey to the vassal about our relationship. It’s always a delicate balance of carrot and stick. They are always written from the first-person perspective of the Hittite king as a direct address to the vassal king. Sometimes I will feel that I will be able to best cement the relationship and get what I want from my vassal by being highly complementary to him and by addressing him in a fashion that instills confidence that I am there for him. And indeed, we find that some of these historical prologues are highly laudatory. Other times though, I, as Hittite king, might feel that I can get the most out of this vassal by intimidating him. In fact, in some of the prologues we find statements like, “you were a dead dog until I came and revived you and gave you land over which to rule.” The historical prologue, then, was the “speech” through which the Hittite king set the tone for the relationship that was now being established.
Joshua Berman, Rethinking Orthodoxy and Biblical Criticism IV
[W]hen a vassal king died, the Hittite king would establish a renewal treaty with his successor. The idea was to stress continuity…When a Hittite king would pen such a renewal treaty, he would, of course, begin the text of the treaty with an historical prologue of how the parties got to where they were. And if he was penning a renewal treaty, then he would rewind the historical review back to the beginning: how the present vassal’s father or grandfather had originally come to accept vassalage to the Hittite throne.
…[W]hen we look across all of the Hittite treaties with their vassals we see the same phenomenon: when we find an original treaty and then a renewal treaty between the Hittite king and a given vassal, the story of how the original vassal king came to submit to the Hittite thrown is never told the same way twice.
In most cases, the various versions are incompatible [DHW: emphasis mine]…The explanation is rooted in the identity we stressed earlier, in which the historical prologues are seen as diplomatic signaling, as a way of indicating to the vassal how the sovereign views him. At all times, the Hittite kings composed their versions of the history of the relationship with the vassal with one aim in mind: to project a message, an impression for the present. At all times the past was a resource that the Hittite king could use to shape the present.
So too, we are to read the differing historical accounts in the earlier books of the Torah and in Sefer Devarim. We, as the audience of the Torah, are descendants of the earliest vassal, the generation of the wilderness. We are meant to discern the unilaterally more critical depiction afforded Israel in the accounts of Sefer Deavrim. This reproachful thread is a signal that as the rebellious vassal Israel renewed her covenant on the plains of Moab, she was now on different terms with her sovereign Lord, Hashem. At Sinai, there had been hope that all would go well. After forty years, Israel had strained that relationship severely. The retold history of the period with its alterations and emphases communicates that idea emphatically.
…[T]he choice of stories in Sefer Devarim is clear. This is not a general history. It is strictly a history of the relationship between sovereign and vassal—God and Israel after Sinai, and hence covers the period of the wandering only…Although most history in the Tanakh is reported through the voice of the authoritative, omniscient scribe, history in Sefer Devarim is reported as an exhortation to recall what had happened “at that time”…The vassal treaty approach well explains this. The narratological tone is highly similar to that which we encounter in the vassal treaties: the sovereign essentially mandates the vassal to recall events that putatively are known to both sides and to draw the appropriate lessons.
Joshua Berman, Rethinking Orthodoxy and Biblical Criticism IV
The history of ספר דברים contradicts in many details the stories earlier in the Torah, but is so incomplete that it is incomprehensible without knowing the earlier text. According to Rabbi Berman, the retelling is to set the tone for the terms of the treaty. As Ramban said, this is a much sterner, harsher ברית than the one 40 years ago, because so much had gone wrong.
It’s a nice idea, but as even Rabbi Berman admits, it’s very risky to try to understand texts in terms of what we think we know about the society of the time. We just don’t really know as much as we pretend to. So this is a nice story, but is it right?
I should like to conclude with a note about biblical scholarship and plain luck. There is much that we know today about the ancient world. There is also much that we don’t know. How much we don’t know is hard to say. The argument that I have made in these essays highlights for me how far removed we are from ancient ways of thinking and writing, and how much luck played into developing these ideas.
Much of the material that forms the basis for this theory was recovered from the archives of the great palace at Hatti. Unlike most other major capitals of the ancient world, Hatti was never ransacked. The empire crumbled and was abandoned in the early 12th century BCE amid drought and famine. That meant the archives were left largely intact, revealing a treasure trove for archaeologists and scholars 3200 years later. That’s good luck.
Most of the kingdoms of old that were situated in modern day Syria have never been excavated. But in 1929, a farmer set his plow into the plateau at Ras Shamra overlooking the Syrian coast and accidentally discovered the ancient kingdom of Ugarit. Much of the supporting material for this approach (which I did not bring here, but is available in my broader academic study) stems from those excavations. That’s good luck.
Late Bronze Age Hittite vassal treaties are an arcane field of study in which only a handful of scholars have major competence. But in 2004, the Israeli historian Amnon Altman composed his magnum opus, a study of all of the historical prologues of these treaties, in comprehensive fashion. That allowed me to engage these materials in a way that would not have been possible otherwise. That was my good luck.
Without the confluence of all three of these strokes of luck, the approach presented here would be hidden today. There is no way that a modern mind could possibly adduce such a theory without them. Scholarship aims to offer the best answers it can with what we know. When the answers provided seem strong and unimpeachable, that is a sound way to proceed. When the answers, however, are problematic, perhaps that is because there is so much that we still don’t know. Methodological modesty mandates us to always keep that in mind.
Joshua Berman, Rethinking Orthodoxy and Biblical Criticism IV
At the end of my first installment (link), where I discussed contradictions in narrative between Devarim and the other books of the Torah, I underscored the limits of our grasp of the ancient world in which the Torah was written and first read. I drew attention to how our knowledge of that world is often a function of the luck of the spade. We get lucky and find the remnants of documents that shed great light on our Scripture. Those inscriptions, representing a tiny and random fraction of the full literary output of the ancient world suggest to us the enormity of just how much we don’t know. The finds from the ancient world lie before us as but several random and scattered pieces of what we can see was a huge and intricate puzzle.
Joshua Berman, Rethinking Orthodoxy and Biblical Criticism VIII
I am always leery when reading about the culture of the “Ancient Near East”. We’re talking about a period of millenia, over an area of several million square miles. Interpreting the Torah in terms of Hittite vassal treaties is like interpreting the Magna Carta in light of the National Enquirer coverage of the 2016 US elections. There certainly are commonalities, but we have no idea what they are.
However, the fact that a “treaty” starts with a historical introduction is more universal than that. The US constitution has a sort of history:
We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America.
Preamble to the Constitution of the United States
And even that phrase “the People of the United States” assumes the history inherent in the Declaration of Independence.
Similarly, the NATO charter:
The Parties to this Treaty reaffirm their faith in the purposes and principles of the Charter of the United Nations and their desire to live in peace with all peoples and all governments.
They are determined to safeguard the freedom, common heritage and civilisation of their peoples, founded on the principles of democracy, individual liberty and the rule of law. They seek to promote stability and well-being in the North Atlantic area.
They are resolved to unite their efforts for collective defence and for the preservation of peace and security. They therefore agree to this North Atlantic Treaty.
Preamble to the North Altantic Treaty
All law assumes the existence of a society with a specific history. As Professor Robert Clover put it, there is no
nomos without a narrative:
We inhabit a
nomos—a normative universe. We constantly create
and maintain a world of right and wrong, of lawful and unlawful, of
valid and void…No set of legal institutions or
prescriptions exists apart from the narratives that locate it and give
it meaning. For every constitution there is an epic, for each decalogue
a scripture. Once understood in the context of the narratives
that give it meaning, law becomes not merely a system of rules to be
observed, but a world in which we live.
In this normative world, law and narrative are inseparably related.
Every prescription is insistent in its demand to be located in discourse—to be supplied with history and destiny, beginning and end, explanation
and purpose. And every narrative is insistent in its demand
for its prescriptive point, its moral. History and literature cannot
escape their location in a normative universe, nor can prescription,
even when embodied in a legal text, escape its origin and its end in
experience, in the narratives that are the trajectories plotted upon
material reality by our imaginations.
Robert M. Cover (1983), The Supreme Court, 1982 Term—Foreword: Nomos and Narrative
And the Torah (and תנ״ך as a whole) epitomizes the constant interconnectedness of history and law, of
nomos and narrative. אלה הדברים must include both or it means neither.