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Courts and Testimony, Lawrence H. Schiffman, Reclaiming the Dead Sea Scrolls, Jewish Publication Society, Philadelphia 1994.

The Dead Sea Scrolls
The Zadokite Fragments contains also a full set of legislation regarding civil law, dealing with the same topics that are treated in the mishnaic order of Nezikin (Damages), although the topics are not discussed in as much detail. Even though the sectarian court system, laws of witnesses, and testimony are derived from biblical interpretation, we will find in the case of civil law much greater divergence from early rabbinic approaches than we saw in the case of Sabbath law. Further, in this area of law we will also encounter a greater nexus between the halakhic issues under discussion and the way the sect was organized. These laws clearly address the sectarian community, albeit one with private ownership, marriage, and family.

Because the foundation of any system of law is the judiciary, it is not surprising that the sect had very specific laws regarding courts and judges-

And this is the rule for the judges of the congregation, according to the time, four of the tribe of Levi and Aaron, and from Israel six, learned in the Book of Hagu and in the teachings of the covenant, from twenty-five years old to sixty years old. (ZADOKITE FRAGMENTS 10-4–8)

This text describes a court of ten, certainly not the norm in any other Jewish source we know. This court was to be composed of four members of the tribe of Levi, one a priest descended from Aaron the brother of Moses, and the other three to represent each of the other Levitical clans of Gershon, Kohath, and Merari.

The judges were to have studied the Book of Hagu (perhaps read “Hagi”), which was either the Torah or some particular sectarian book of laws. Various theories have tried to link this book with known compositions from the Qumran library. There is, however, no basis for identifying that text as the Temple Scroll. Nor should it be identified with one of the recently published Sapiential Works, as has also been suggested.

In addition to the laws of the Torah, these judges also had to know sectarian law. They were limited in age from twenty-five to sixty. In the Torah, twenty-five was the minimum age for Levitical service. Probably because the sect regarded itself as a substitute Temple, sectarians selected this number as the starting age for judicial service. The retirement age of sixty could have been derived only from the maximum age of valuation stated in Leviticus 27-3. This age was considered applicable, for as the text explains, it supposedly marked the onset of senility.

These judicial laws contrast markedly with later rabbinic usage. Although some early sources refer to groups of ten that performed certain legal functions, the Rabbis make no mention of a court of ten. The most prominent group of ten in Jewish tradition, of course, is the minyan, the group of ten Jewish adult males that makes up the quorum for public worship. Rabbinic law does not specify ages for judicial service. Although some rabbinic sources require that priests and Levites be part of the Great Sanhedrin, the high court of seventy-one members, this passage goes much further, assigning a greater judicial role to priests and Levites. Of course, this requirement is understandable coming from a group founded by dissident Zadokite priests.

Witnesses must also meet specific requirements-

Let no witness be accepted by the judges to put someone to death by his testimony whose days are not sufficient to pass among the mustered (and who is not) God-fearing. Let no man be trusted as a witness against his neighbor who violates any commandment intentionally, until (his deeds) have been purified (sufficiently for him) to return. (ZADOKITE FRAGMENTS 9-23–10-3)

Here we learn that witnesses were to be at least twenty, the age of majority in the sect, when young men were mustered and took an oath of adjuration to abide by the sectarian way of life. They were to be God-fearing—meaning, members of the sect. Finally, if they were not totally observant of the commandments, they could not be trusted as witnesses unless they had undergone a process of repentance. Although some have attempted to claim that the sectarians accepted women as witnesses, a view we considered in the chapter on women, that view must be rejected because it is based on a corrupt text and does not accord with the role of women described in other Qumran documents.

Even though other Jewish sources do not specify twenty as the minimum age for witnesses in capital cases, we have some indications that twenty might have been a general age of majority in Second Temple times. The age of thirteen, commonly termed Bar Mitzvah, meaning “obligated to observe the commandments,” was considered the minimum age for physical maturity, bringing with it ritual obligation and, hence, religious majority. By twenty, maturity could be confidently ensured, and, therefore, testimony could be accepted. This way of thinking, however, was at odds with that of the Pharisaic-rabbinic tradition.

This text accepts as witnesses only members of the sect, those who are “God-fearing.” Here we see the connection between legal requirements and the sectarian life. For if righteousness were attainable only through the sect’s way of life, then only those who observed that way of life were qualified to serve as witnesses. Others, obviously untrustworthy, had to be excluded. The law of witnesses, then, in its present form, was applicable only to the sectarian community.

An issue of considerable controversy among scholars is the number of witnesses required in legal cases. The section of text discussing this issue (Zadokite Fragments 9-16–23) is so difficult that its translation and analysis would take us far afield. Suffice it to say that in my view, the sect required two witnesses for financial matters and three for capital matters. Further, witnesses were permitted to testify before the examiner about independent occurrences of the same transgression, provided that the violator had been informed of the gravity of the transgression prior to committing the offense and that the offense had been duly recorded by the sectarian official. This is the process termed “reproof” that we examined in the chapter on halakhic midrash.

These laws are peculiar to the Zadokite Fragments and disagree with rabbinic halakhah. Although the requirement of three witnesses has some Second Temple parallels, it is not known as a legal requirement anywhere else but in our text. Furthermore, later talmudic law considered and rejected the notion of cumulative testimony to separate repeated occurrences of the same offense.
An exceedingly illuminating feature of the sectarian legal system was its method of attempting to recover lost or stolen property. In this regard, the Zadokite Fragments provides-

But anything which is missing and it is not known who stole it from the property of the camp in which it was stolen, its owner shall swear an oath of adjuration. Whoever hears, if he knows and does not tell, is guilty. (ZADOKITE FRAGMENTS 9-10–12)

This law states explicitly that it applies to a situation in which a sect member steals property within the “camp,” a term in the Zadokite Fragments for the sectarian settlements located throughout the country. The law thus addresses the case of theft specifically among sectarian group members. Further, this text, as well as for that matter the entire civil law code, assumes that sectarians have private property. Because of these features, many scholars claim that the law in this document applies only to those in the “camps” who did in fact own their own property. Consequently, they would claim that these laws did not apply in the Qumran center. However, we have shown that even in the Qumran center the system of property ownership provided for private ownership and communal use. So this restricted view of the law cannot be justified.

If property were missing, the sect employed an oath of adjuration to effect its recovery. Sectarians derived this procedure from the command found in Leviticus 5-1, “If anyone sins in that he has heard a public adjuration, and he is able to testify … , if he does not speak, then he shall be subject to (punishment for) his offense.” According to the sectarian interpretation of this passage, a person who heard such an adjuration was obliged to come forward and reveal the location of the lost or stolen property.

Therefore, anyone who knew the whereabouts of the missing property would, upon hearing this oath pronounced in public, feel compelled to reveal it. Although there is no similar law in rabbinic sources, we encounter such a procedure in medieval Jewish law. Unfortunately, we have no way of knowing whether the medieval parallel is simply coincidental or whether it is a survival into the Middle Ages of an ancient sectarian practice documented in the Qumran scrolls. We should note that rabbinic sources do describe an oath employed to cause recalcitrant witnesses to testify, but that procedure functions only to compel testimony, not to recover stolen or lost property.

Since “oath of adjuration” is a term used specifically in the Bible to describe the oath administered to the woman suspected of adultery, it is most probable that this biblical legal procedure (Numbers 5-11–31) enabled sectarian legal scholars to fill in various missing details not even hinted at in Leviticus 5-1. From the law of the suspected adulteress we learn that suspicion alone was enough to require the oath. The sectarian oath was probably formulated as follows- Those adjured swore not only that they did not know the location of the stolen property but also that they accepted upon themselves a dire curse should they be hiding the truth. Probably the hearers of the oath were compelled to recite “Amen, Amen,” indicating that they too were bound by the oath, since such a requirement applied to the adjuration of the suspected adulteress.

The last of these civil laws that we shall examine discusses the restoration of property to an owner who cannot be located or determined. Here again, we may observe the priestly orientation of the law and the community it assumes-

(Regarding) every amount to be repaid which does not have an owner, the one making restitution shall confess to the priest and everything shall be his (the priest’s) except for the ram of the guilt-offering. And likewise, any lost object which has been found and has no owner shall go to the priests, for its finder does not know the regulation pertaining to it. If no owner is found for it, they (the priests) shall guard it. (ZADOKITE FRAGMENTS 9-13–16)

This passage first deals with how to make restitution in a case in which the rightful owner cannot be located or identified. This law is based on the Torah’s legislation dealing with the restitution of property kept by means of illegal and dishonest legal claims, most probably by means of false oaths (Numbers 5-6–8 and Leviticus 5-21–26). In such a case, the sect ruled that the restitution be made to the priest who received the money and the added penalty of one-fifth prescribed by the Torah. In addition, the sacrifice of a ram as a guilt-offering was to be made by the person making restitution.
The Rabbis understood these verses completely differently, taking them to refer to the property of a proselyte, a convert to Judaism. They believed that the words “If the man has no kinsman to whom restitution can be made” (Numbers 5-8) referred to a proselyte, because there could be no other Jew who could possibly have no relatives as heirs. Accordingly, for the Rabbis this biblical passage did not offer a general rule about the disposition of lost property.

In a case in which the owner was unknown, the sect required that the object be given to the priests for safekeeping, a practice probably adopted due to the complex questions, also discussed in the Mishnah, of how to care for the property and what to do if the property had a maintenance cost that could consume its value, as in the case of feeding a lost animal. It was assumed that the average person, no matter how well-meaning and upright, simply could not adjudicate these difficult matters.

But this entire procedure is difficult to understand in light of the requirement of Deuteronomy 22-2 that such property be kept by the finder until the owner can be located. Indeed, the mishnaic approach, whereby the finder keeps the property until the owner or his heir is located, seems much more consistent with the biblical prescription.

Then how did the sect come to this conclusion? Probably it understood the requirement—to take it to “your house” (bayit; Deuteronomy 22-2)—to refer not to the finder’s home but to the Temple, often designated as bayit, the house of God. Based on this understanding, the sect mandated that the lost property be given to the priests. In their own community, in which they did not participate in the rituals of the Temple, this ruling would make even more sense.
These examples have shown that the sectarians developed an extensive and detailed system of civil law to deal with the affairs of their members. Although their system varied in many ways from the later rabbinic one, it agreed in many matters as well.

Before we leave this topic, it will be worthwhile to summarize this system as a whole- The basic court had ten members. Judges were to be trained both in Scripture and in sectarian legal teachings. Specific age requirements ensured the competence of judges. Witnesses had to be members of the sect and, in capital matters, had to be older than twenty. Whereas two witnesses were sufficient for financial matters, three were required for capital cases. The testimony of fewer witnesses sufficed for the imposition of sectarian sanctions even when the testimony was insufficient for conviction. It was possible to make use of the cumulative testimony of single witnesses to successive commissions of the same crime, provided that the offense was duly recorded. All trials had to be preceded by the required formal reproof in the presence of witnesses before conviction was possible. In cases of lost or stolen property, laws provided for the use of oaths of adjuration that aided in the return of missing items. When illegally gained property was to be returned but the owner was absent, the property could be returned to the priests. If no one claimed lost property, it was entrusted to the priests for safekeeping.

This set of laws has been examined in order to show how in matters concerning Sabbath law, civil law, and even in some cases the conduct of sectarian affairs, the sect derived its laws differently from the ways other groups of Second Temple Jews and the later Rabbis did. In many cases, the differences resulted from differing interpretations of relevant biblical laws. Early Christianity, we noted, tended to be on the opposite side of the spectrum from the Qumran sect, representing a more lenient group than the Pharisees, whereas the sect tended to be still stricter. And we found that, in many aspects of the law, the sect’s views were either the same as or very similar to those of the rabbinic tradition. Even where they differ, they indicate a common agenda and even some common conclusions, alongside their many differences.

The next chapter examines the religious way of life of the Dead Sea Scrolls community and allied groups. Here we will observe the life of the sectarian not from the abstract point of view of legal codes, but from the evidence of actual practice.

Pages 282-287

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