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Monday, 3 November 2014

The temptations of Jesus and Roman Law

Four decades ago, David Daube, a scholar whose expertise in ancient law produced a "near revolution in New Testament studies",1 published a book whose rather dull title, Studies in Biblical Law, conceals its fascinating contents. The work illustrates numerous biblical texts whose meaning is illuminated by the background of ancient law. One of the topics treated in the book is law governing the transfer of land from one owner to another. Daube explains the concept as follows:
In Roman law there was a mode of transfer of ownership called traditio. If you wished to make over a thing to me, you 'tradited' the thing to me, that is to say, you put me in possession, in control, of the thing, and the moment you had done this it became mine. As is to be expected, the Roman jurists had a great deal to say about what amounted to control, about what exactly was needed in various circumstances for control, and with it ownership, to pass from one party to the other. Everything would be clear, for example, if in order to pay you I took a coin and handed it over to you. You would now have command of the coin, traditio would manifestly be completed, the coin would therefore belong to you and my debt would be paid...Special problems arose in the case of land and buildings. Evidently, these cannot be delivered as simply as movables; they cannot be physically handed over by the former owner to the new like a horse or a sack of corn. In this dilemma, the Romans appear to have recognized a way of transferring control without a literal 'handing over'. More precisely, there appears to have been an ancient rule concerning land and buildings, to the effect that, provided you took me to the spot and pointed out the property to me, this counted as traditio: I acquired control and the transfer was good. It was not even necessary for me to step on the land or touch it with my hands: I might seize it, it was held, with my eyes.2
Daube reminds the reader of what might seem obvious: a change of ownership only took place when the owner explicitly or implicitly expressed the intention to transfer the property. The particular type of traditio that Daube is referring to is known technically as traditio longa manu (literally, 'delivery with the long hand'), defined as
A form of traditio in which the thing to be transferred to the acquirer was placed with his knowledge and consent in his sight (in conspectu) so that he might take possession thereof whenever he pleased.3 4
Du Plessis similarly explains that traditio longa manu occurred
when the property was indicated or pointed at, providing that it was within sight of the parties and capable of being taken at once into the transferee's control. This type of delivery was of obvious relevance in cases where the thing to be delivered could not easily be handled, e.g. land or heavy movables5
Although this ancient legal concept (which is still in use today in some jurisdictions such as South Africa6) is known to us primarily through Roman law, Daube argues for the possibility that it was also used by the ancient Hebrews. Daube identifies three biblical narratives which he believes reflect this legal principle. Two of these relate to promises of land by God in the Pentateuch: to Abraham (Genesis 13:14-15) and to Moses (Deuteronomy 3:27-28; 34:1-4). The significance of the legal background is that, if Daube is correct, these statements by God concerning land which Abraham and Moses were asked to survey with their eyes constituted legally binding contracts. For instance,
When God led [Moses] to the top of a mountain and from there showed him Palestine, he was not merely granting him a last personal wish, but was performing an act with a definite legal effect. God, the owner, pointed out the land to him, fines demonstrabat, indicated to him the boundaries of the territory, and thereby made him its sovereign.7
Daube adds that the detail given in Deuteronomy 34:7 that Moses' "eye was not dim" may be intended to stress that "Moses saw the land full well, that in spite of his age he was capable of controlling and validly taking it with his eyes."8 Of course, in spite of these transactions with God taking place, both Abraham and Moses died without having physically enjoyed ownership of the land (Acts 7:5; Hebrews 11:13). This could be compared to the 'already/not yet' eschatology found in the New Testament. Just as believers in Christ have the legal sentence of condemnation lifted immediately but do not experience the benefits physically until the resurrection (Romans 8:1, 11), so Abraham and Moses were granted legal title to the land immediately but will not physically possess it until the resurrection.

Another interesting biblical example of the traditio longa manu principle is found in the wilderness temptation narratives of Matthew 4 and Luke 4. One of the devil's temptations (third in Matthew's order and second in Luke's) reads thus:
8 Again, the devil took Him to a very high mountain and showed Him all the kingdoms of the world and their glory; 9 and he said to Him, “All these things I will give You, if You fall down and worship me.” 10 Then Jesus said to him, “Go, Satan! For it is written, ‘You shall worship the Lord your God, and serve Him only.’” (Matthew 4:8-10 NASB)
5 And he led Him up and showed Him all the kingdoms of the world in a moment of time. 6 And the devil said to Him, “I will give You all this domain and its glory; for it has been handed over to me, and I give it to whomever I wish. 7 Therefore if You worship before me, it shall all be Yours.” 8 Jesus answered him, “It is written, ‘You shall worship the Lord your God and serve Him only.’” (Luke 4:5-8 NASB)
Daube comments as follows on this passage:
The other narrative containing the idea of transfer of land by pointing it out and seeing it, many centuries later than that of Abraham, is the narrative of the temptation of Jesus, with Satan's offer of all the kingdoms of the world...I am not suggesting that there is any emphasis on the legal points; all that I mean to say is that the notion of transfer of ownership by one party offering and pointing out the object and the other accepting and seeing it is here noticeable in the background. Indeed, it is no mere coincidence that the property to be transferred is here offered from a high place, as in the case of Moses and in that from the Digest where 'my vendor from my tower points out neighbouring land to me'. It would be easier thus to overlook the land, fines demonstrare. Satan was a good lawyer, and, incidentally, aware how attractive the glory of the world must look when you are so placed that you can take it all in at one glance: the transaction that he contemplated failed only through non-acceptance by the other party.9
What implications does this legal background have for our interpretation of the devil in this narrative? Firstly, there is good reason to believe that the legal principle of traditio longa manu would have been understood by the authors of the Gospels (who, if tradition is correct, were educated men - a tax collector and a physician, respectively). The same is true of the addressee of the Third Gospel, "most excellent Theophilus" (Luke 1:3), a form of address which "seems to indicate a specific person of high social standing."10 Thus, while Daube is correct that the narratives do not emphasize the legal aspect of the temptation, both the Evangelists and educated readers such as Theophilus are likely to have taken the legal connotations into account when forming their understanding of this event.

It is significant that in Luke, the devil claims the authority to be able to transfer ownership of the land to Jesus.11 He then offers to do so, with the legal setting indicating that the transfer could be effected immediately if Jesus agreed to his price. When the temptation is read in this light, there is no escaping the transactional nature of the exchange. A transaction, however, requires two parties. It cannot be interpreted as a struggle within the mind of Jesus. Just as one cannot worship oneself, so one cannot transfer property to oneself. Attempts to read the whole episode figuratively break down decisively at this point because they render both the devil's offer and the devil's demand meaningless.

Daube's comment that "Satan was a good lawyer" is also intriguing inasmuch as Satan is depicted as a heavenly lawyer (more specifically, as God's overzealous prosecutor) in the Old Testament (Job 1-2; Zechariah 3), an idea also found in New Testament texts such as Luke 22:31, Jude 9 and Revelation 12:10.

Finally, although this is a point I have addressed elsewhere, it is worth emphasizing another point of contact between the temptation narratives and Deuteronomy 34 cited above. A figurative, 'psychological' interpretation of the temptation narrative has sometimes been defended on the grounds that there is no mountain on earth from which one can see all the kingdoms of the world (even when one considers that 'the world' here is probably restricted to the Roman Empire and its environs). However, the same problem occurs in Deuteronomy 34:
Here the phrase 'as far as Zoar' refers to the southern end of the Dead Sea, which is not visible from the summit of Mount Nebo, because of the mountain range extending from the viewer's left that blocks the view such that only the northern part of the Dead Sea is visible. Moses was given a vision of the promised land in its entirety that no tourist today can see without ascending into the skies. Perhaps this fact helps to explain the subsequent tradition known as The Assumption of Moses, with its account of Moses being taken directly to heaven rather than dying a natural death. Jude 9 appears to refer to such a tradition, which was apparently well known in early Jewish circles. At any rate, it would require such an airborne experience for Moses to actually see all that the biblical text says he saw in his vision from the summit of Mount Nebo.12
I doubt that anyone would claim that in the narrative of Deuteronomy 34, "Moses went up from the plains of Moab to Mount Nebo, to the top of Pisgah" refers to a figurative event in Moses' mind. It is clear that Moses really did ascend a mountain; and yet the details of the land he was shown indicate that the vision had a supernatural element to it. Why can we not interpret the Gospel temptation narratives in the same way? This would not be the only case of a transcendent experience occurring on a mountaintop in Matthew (cf. 17:1-8; 28:16-20). Thus, the fact that no mountain exists from which the whole Roman Empire may be seen with natural vision no more implies that the whole temptation is figurative than the fact that Zoar cannot be seen from Mount Nebo implies that Deuteronomy 34 is figurative.

Professor Daube's insights contribute to the substantial body of evidence that the devil who tempted Jesus was an external personal being.



1 Davies, W. (2000, April). A Gentle Hawk. Retrieved October 31, 2014, from http://www.law.berkeley.edu/library/daube/davies.html
2 Daube, D. (1969). Studies in Biblical Law. New York: KTAV Publishing, pp. 26-27.
3 Berger, A. (1968). Encyclopedic Dictionary of Roman Law. American Philosophical Society, p. 740.
4 See also Buckland, W.W. (2007). A Text-Book of Roman Law: From Augustus to Justinian. Cambridge University Press, p. 227.
5 Du Plessis, P. (2010). Borkowski's Textbook on Roman Law. Oxford University Press, p. 181.
6 Van der Merwe, C.G. & Du Plessis, J.E. (Eds.). (2004). Introduction to the Law of South Africa. Kluwer Law International, p. 215.
7 Daube, op. cit., p. 28.
8 Daube, op. cit., p. 39.
9 Daube, op. cit., pp. 35-36.
10 Bock, D.L. (1994). Luke 1:1-9:50. Grand Rapids: Baker Academic, p. 63.
11 This need not actually imply that the devil actually had this authority, since the devil is a liar (John 8:44; Revelation 12:9). However, for the offer to be tempting, the devil's claim would need to be at least credible. To this end it is worth noting that Jesus and the New Testament writers regarded the devil as having considerable power, to the point of being referred to as "the ruler of this world" (John 12:31; cf. Acts 26:18; 1 John 5:19; Revelation 2:13).
12 Christensen, D.L. (2002). Deuteronomy 21:10-34:12. Mexico City: Thomas Nelson, p. 871. Emphasis added.

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