Posted by: mattcolvin | February 21, 2012

Law in the Joseph Narrative 1: Custodia

Diego Velazquez, "Joseph's Brothers Presenting His Bloody Coat to Jacob", 1630.

Monday of Quinquagesima: Genesis 37.

It’s been a busy two weeks, and I haven’t been able to keep up my blogging of the lectionary. I’ve still done the reading all along, however, and have especially enjoyed the Joseph narrative, one of the Bible’s masterpieces of storytelling. It is also a story that comes alive more vividly when one knows some of the legal background given by David Daube. One of Marcus Bockmuehl’s desiderata in his Jewish Law in Gentile Churches is that there should be more scholarship on the New Testament from a legal-historical perspective. This is an area I would very much like to pursue if God ever sees fit to put me in a position to do research again. For now, here are some of the things that are going on in the story from a legal point of view:

– The brothers of Joseph in chapter 37 operate with an almost superstitious view of murder: “Let us sell him to the Ishmaelites, and let not our hand be upon him, for he is our brother and our flesh.” Like Creon shutting up Antigone in a cave, they suppose at some level that their act will not be counted against them because they have not killed him by wielding weapons with their own hands. The declaration, “He is our flesh” is a formal recognition of kinship, uttered by Laban to Jacob, and most famously by Adam to Eve. This formal declaration exacerbates the brothers’ crime of betrayal (prompted by Judah = Judas).

– The brothers also avail themselves of the law of custodia. Daube explains that a shepherd would have been obliged to present to his master the sheep committed to his charge, and would be legally responsible for any that were missing. The exception would be those that had been attacked or devoured by predators — in which case, the shepherd had to present the remains of the carcass to the owner of the sheep, and the owner would give his legal acknowledgement that indeed, the animal had been attacked by a predator, and release the shepherd from legal responsibility. We see this law at work in the case of Jacob and Laban: “That which was torn I did not bring you; I bore the loss of it. You required it from my hand, whether stolen by day or stolen by night.” (Gen. 31:39) Jacob is complaining that Laban’s treatment of him has been more exacting and strict than the usual rules for shepherds.

Joseph’s brothers avail themselves of this exception by presenting Joseph’s tunic of many colors to Jacob:

We have found this. Recognize, pray (haker-na) whether it is your son’s tunic or not? (37:32)

This is a request for a legal admission. The next verse uses the technical term:

And he recognized (wayyakiyrah) it and said, ‘It is my son’s sunic. A wild beast has devoured him.’

A similar request for legal recognition of tokens appears in Genesis 38:25 when Tamar asks Judah in a formal court setting to “recognize (haker-na again!) whose these are — the signet and cord and staff.” Chaya Halberstam in Law and Truth in Biblical Literature (p. 149), adds, “Tamar, in fact, is said to ‘send’ the signet, cord, and staff to Judah — she has relinquished control of these objects, staking her life on the effect this evidence will have on Judah’s conscience.” Jacob’s sons also “sent” the tunic and “had it brought” (37:32). Alter comments: “The brothers operated indirectly, through the agency of a messenger, letting the doctored evidence of the blood-soaked tunic speak for itself.” In both cases, the physical evidence — however fraudulent — is more powerful than any verbal pleading could be.

Jacob’s sons are in a different situation from Tamar, shepherds presenting the evidence of the violent death of, not a sheep, but their brother. They use the law as an instrument of fraud. Abominable, but we should remember that it is a poetic justice on Jacob, who as Alter notes, “had used both a slaughtered kid and a garment in the deception he perpetrated on his own father.”



  1. […] wish that Joseph should not hold their sin against them. There is a pleasing symmetry here. (See Law in the Joseph Narrative 1: Custodia and Where was Reuben?, from earlier years of this […]

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