The Old Testament Covenant as a Form of Treaty

Submitted by Dave Lowe

For Professor Greg Watson

Old Testament Introduction I

        In the past 125 years there has been much discussion regarding the origin and form of the Old Testament Covenants. In the 1950’s George Mendenhall proposed a theory of the source and form of the Old Testament Covenant based on Ancient Near Eastern Hittite treaties in existence around the time of the exodus. This paper will examine the evidence for the covenant-treaty perspective as it relates to an early dating of the Mosaic covenant and also highlight the arguments used against this perspective by scholars today.

The Basis for Studying the Idea of Covenant

          The question one might ask is, “What is the purpose of studying the origin and form of the covenant?”  In other words, “Why is this important?” The study of the form and origin of the covenant idea is important because it helps to establish the timeframe of the beginning of the nation of Israel and the nature of their relationship to Yahweh.

        In 1878, Julius Wellhausen published his Prolegomena zur Geschichte Israels, in which his “reconstruction of the history of Israelite religion led him to the conclusion that the presentation of Israel’s relation to Yahweh in terms of a covenant was a late development and came about as a result of the preaching of the great prophets.”[1] Based primarily on his Documentary Hypothesis views of the Old Testament, Wellhausen rejected the traditional views of the covenant and of the historical Moses. Wellhausen believed that “Moses the law-giver at Sinai, through whom God gave to Israel the extensive and minute legislation of the theocratic community, is but the fictitious creation of much later periods, beginning in the writings of J and E, developing through the work of the redactor who combined these two documents (the Jehovist) and the book of Deuteronomy, and finding its culmination in the Priestly presentation of the Sinai events.”[2]

        To Wellhausen, the nature of the bond between the Israelites was not based upon the giving of the Law and the formation of the covenant as a treaty between Yahweh and the people, but rather it was based on blood ties that existed between the descendents of Abraham, Isaac and Jacob. Wellhausen’s views were widely accepted until Mendenhall offered his alternate views in his 1955 work Law and Covenant in Israel and the Ancient Near East.

        In his book, Mendenhall promoted his view that the covenant was not merely a stage in the history of Israelite religion, but instead “was an event which had a definite historical setting and the most surprising historical consequences.”[3] His reasoning was simple:

    It is…becoming increasingly difficult to maintain that there were blood-ties close enough to bind Israel together to produce the feeling of solidarity, which has since Wellhausen been described as the pre-eminent effect of the work of Moses. If those blood-ties, kinship, as the basis of Israelite solidarity be given up, it is inconceivable, at least to the present writer, that there could have been, at that time, any other basis of solidarity than a covenant relationship.[4]

 

        Mendenhall argued that the covenant with Israel at Sinai was based on the Hittite treaty form that was in effect from around 1400-1100 B.C. His view was based on an article by E. Bickerman. According to Ralph Smith in his Old Testament Theology, “Bickerman seems to have been the first scholar to notice a possible analogy between the treaties of the Hittite kings and their vassals and the covenant relationship between Yahweh and Israel.”[5]

        Mendenhall analyzed Hittite treaty documents that had previously been published by V. Korosec in 1931. He found that the Sinai covenant tradition had amazing similarities to the Hittite suzerainty treaty texts dating from around 1400 to 1100 B.C.[6] Nicholson notes that the suzerainty treaty was one “whereby a great king bound his vassals to faithfulness and obedience to himself and at the same time ordered relationships between the vassals themselves as subjects of the one overlord.”[7] The suzerainty treaty is significant because as Mendenhall points out:

    This covenant type is even more important as a starting point for the study of Israelite traditions because of the fact that it cannot be proven to have survived the downfall of the great Empires of the late second millennium B.C. When empires again arose, notably Assyria, the structure of the covenant by which they bound their vassals is entirely different.[8]

 

        If the Israelite covenant is based on the Hittite suzerainty treaty form, which was only known during the late Bronze Age (c. 1400-1200 B.C.) then there is strong evidence to support Mendenhall’s suggestion that the Sinai covenant was an actual historical event and not a fictitious revision of some later redactor, as Wellhausen has asserted.

The Form of the Treaty

        Mendenhall identified six different elements to the treaty formula, though he was careful to point out that “there is considerable variation in the order of the elements as well as in the wording. Occasionally, one or another of the elements may be lacking…”[9] 

        The first element of the treaty form is the Preamble, which “identifies the author of the covenant, giving his titles and attributes, as well as his genealogy. The emphasis is upon the majesty and power of the king, the Sun, who confers a relationship by covenant upon his vassal.”[10]

        The second element of the treaty was The historical prologue. Mendenhall explains that:

    This part of the treaty describes in detail the previous relations between the two. In the suzerainty treaties great emphasis is placed upon the benevolent deeds which the Hittite king has performed for the benefit of the vassal, and such a narrative is never lacking in texts which have been completely preserved.[11]

 

        The third part to the treaty was the Stipulations. Mendenhall outlines the many stipulations that were typically included:

a.    The prohibition of other foreign relationship outside the Hittite empire.

b.    Prohibition of any enmity against anything under sovereignty of the great king.

c.     The vassal himself must answer any call to arms sent him by the King. To fail to respond is breach of covenant.

d.    The vassal must hold lasting and unlimited trust in the King…

e.    The vassal must not give asylum to refugees from any source

f.      The vassal must appear before the Hittite king once a year, probably on the occasion of annual tribute.

g.    Controversies between vassals are unconditionally to be submitted to the king for judgment.[12]

 

The fourth element of the treaty was the Provision for deposit in the temple and periodic public reading. Public reading served two purposes according to Mendenhall: “first, to familiarize the entire populace with the obligations to the great king; and second, to increase the respect for the vassal king by describing the close and warm relationship with the might and majestic Emperor which he enjoyed.”[13] The treaty was deposited in a sacred sanctuary perhaps as an indication “that the local deity or deities would not and could not aid in breach of covenant.”[14]

The fifth element of the treaty that Mendenhall observed was The list of gods as witnesses. Mendenhall comments that the gods of both the Hittite state and the vassal himself were witnesses to the covenant. Another interesting characteristic is that many of the witnesses are deified aspects of nature, such as “mountains, rivers, springs, sea, heaven and earth…”[15]

The sixth element of the treaty form is The curses and blessings. The curses outlined what would happen to the vassal in the event of infidelity to the covenant while the blessings outlined the benefits of faithfully adhering to the covenant.

The Application of the Form to Exodus 19-24

In their Old Testament Survey, Lasor, Hubbard and Bush provide an excellent example of the parallels of the suzerainty treaty formula with the Sinai covenant text Exodus 20:1-17.

The preamble can be seen in verse 2a: “'I am Yahweh, your God’. God needs no further titles, after the recent dramatic revelation of his name.”[16]

The historical prologue can be seen in verse 2b: “‘ who brought you out of the land of Egypt, out of the house of slavery.’”[17] Lasor, Hubbard and Bush conclude that the prologue is brief here because the Israelites would have a fresh and recent memory of all that God had accomplished and done for them. Hence, there was no need to elaborate on all of God’s “benevolent deeds.” However, “in the covenant renewal ceremony at Shechem (Joshua 24), the historical prologue is long and detailed (vv. 2-13).”[18]

Stipulations to the treaty can be seen in verses 3-17. Here we see Yahweh demanding complete allegiance to Him with the command “you shall have no other gods before me”. The Ten Commandments follow in verses 4-17, followed by its application and explication in chapters 21-23.

While the text in Exodus 20:1-17 did not make specific provision for the deposition of the text and the periodic public reading, the tablets that contained verses 1-17 were placed in the ark of the covenant according to the command of Exodus 25:14. In addition, Deuteronomy 31:10-13 gives a clear provision for the periodic public reading of Scripture.[19]

Conspicuously missing from the treaty formula are the lists of gods as witnesses. However, this is not surprising given Israel’s monotheism and the fact that the nature of the covenant was to set Israel apart from the polytheism and paganism that surrounded her from other nations. Davidson affirms this when he states that “a list of divine witnesses to the covenant would obviously have been wholly out of place in the non-polytheistic setting of the Decalogue.[20] Yet this does not mean that there were no witnesses to the covenant. John Bright, in his book Covenant and Promises states,

    The invoking of various gods as witnesses to the treaty could, of course, have no place in the Biblical covenant (but see Josh. 24:22, 27, where first the people themselves, then the sacred stone, are called to witness). Yet reminiscences even of this feature may be seen in certain “covenant lawsuits” in the prophetic books and elsewhere (e.g., Isa. 1:2 f.; Micah 6:1 f.; also Deut. 32:1), where heaven and earth, mountains and hills, are called upon to bear witness to the people’s derelictions.[21]

 

        Finally, though the curses and blessings are not explicitly spelled out in the Decalogue, it is argued that they also are found elsewhere in the Pentateuch. Davidson states that,

    It is Deuteronomy which develops the theme of the curses and the blessings falling upon the entire community as the result of its obeying, or failing to obey, the divine stipulations, though it is argued that this is already hinted at in the emphasis in the Decalogue upon Yahweh as a ‘jealous God’ punishing, yet holding out rewards for obedience (Exod. 20.5-6).[22]

 

Common Objections to the Treaty Form

        Mendenhall’s views gained such widespread acceptance that, as Davidson stated, “It was widely assumed that the final nail had been driven into the coffin of the Wellhausen view that the Old Testament concept of covenant was a late post-prophetic, post-exilic theological idea replacing the earlier natural bond model of Yahweh’s relationship with Israel.”[23]

        As convincing as Mendenhall’s views may be, there have, in recent years, been scholars who are not convinced. One of the reasons often cited as an argument against Mendenhall’s views is the idea that the Hittite treaty form did not disappear with the fall of the Hittite empire. Dennis J. McCarthy, who is one of the leading opponents of Mendenhall’s views, spends the first six chapters in his book Treaty and Covenant analyzing various ancient treaties from the Hittite empire, the Syrian empire and the Assyrian empire. In chapter seven, he concludes:

    It is said that the Assyrian and other treaties of the first millennium B.C. are entirely different in structure from the Hittite from in the second millennium. It seems to me that the analysis just completed fails to bear this out. In spite of variations in different times and places, variations even of some importance, there is a fundamental unity in the treaties. And this unity goes back beyond the Hittite examples into the third millennium. Everywhere the basic elements are the same…[24]

 

McCarthy does not deny that the covenant follows the treaty form. In fact, in his book Old Testament Covenant, he states, “the evidence that Israel uses the treaty-form in some, at least, of its religious literature, and uses it to describe its special relationship with Yahweh, is irrefragable. There is not another literary form from among those of the ancient Near East which is more certainly evident in the Old Testament.”[25] Instead, McCarthy argues against the notion that the form of the Hittite treaty was confined to the Late Bronze Age. By demonstrating that the treaty form maintained a basic unity as late as the Assyrian empire, he is able to hold onto the Wellhausen view that the Mosaic covenant was a result of the prophets in the post-exile period. John Bright summarizes McCarthy’s position when he states,

    Is it not possible – indeed more likely – that Israel learned of this form, and adapted it for her purposes, late in the days of the divided monarchy, rather than at the beginning of her history? To this must be added the fact that in the Bible the covenant receives by far its clearest formal expression in the book of Deuteronomy (which critics customarily date to the seventh century) – much clearer than in those portions of Exodus that tell of the events at Sinai, where covenant form has to be pieced together from isolated fragments.[26]

 

        A second argument often used against Mendenhall’s views relates to the amphictyony concept. Webster’s defines an amphictyony as “a confederation of states established around a religious center.”[27] Mendenhall believed that an early dating of the covenant idea was necessary to unite Israel because there were no natural blood ties that would keep them together. He states,

    the clans who left Egypt under the leadership of Moses were of diverse background with perhaps a nucleus who traced their origin back to Jacob. Others are called in Numbers a “mixed multitude.” In the desert, as also in Egypt the entire group had no status in any social community large enough to ensure their survival. Therefore, they were formed into a new community by a covenant whose text we have in the Decalogue.[28]

 

        McCarthy denies that such a confederation existed, as he plainly states, “The amphictyony concept, for example plays a considerable role in Mendenhall’s historical reconstruction. In his view the tribes were originally united only by their covenanted relation to Yahweh, that is, through a form of amphictyony. The position becomes difficult if the amphictyony analogy becomes doubtful, and, as we have seen, recent studies have raised doubts about it.”[29]

        A third argument that is used to dispel the early dating of the covenant treaty formula relates to the infrequency in Scripture of the Hebrew word for covenant (b^erīt). Concerning this topic, Bright comments, “it is also the fact that the word “covenant” (b^erīt) occurs with relative rarity in literature that is uncontestably to be dated before the seventh century.”[30]

Responses to Objections

        There is no doubt that the Hittite treaties of the second millennium are similar in form to the later Syrian and Assyrian treaties of the first millennium. At the same time, however, there were important differences that should not be overlooked. Chief among them, according to John Bright, is “the fact that the historical prologue outlining past relationships between the suzerain and his vassal, which is a standard feature both in the Hittite treaties and in all of the classical covenant formulations of the Bible, is lacking in the first-millennium treaties known to us…”[31]

        Another important difference in the first-millennium treaties, according to Bright, is that the curses become much more elaborate and the blessings tend to disappear. Bright argues that the later suzerain-vassal treaties are much different in that they are “based on threats and naked force rather than on conciliation and persuasion.”[32] As such they are completely different from the Biblical covenants. Bright concludes that “it is difficult to believe that Israel’s conception of covenant could have been drawn from treaties like these.”[33]

        McCarthy’s second objection, the denial of the amphictyony, is not convincing. There is no doubt that the Israelites existed for many centuries prior to the monarchy. John Bright gets to the heart of the matter by asking these pointed questions, “How are we to understand earliest Israel? … what sort of entity was this? What created it? What was it that imparted to these Israelite tribesmen a feeling of self-conscious unity that held them together as a definable entity through the first two hundred years of their history without a king or any machinery of state to impose it?[34] McCarthy offers no alternate explanation of the phenomenon that he denies. 

        McCarthy’s argument regarding the infrequency of the word for “covenant” is also not convincing. The fact that the word does not occur does not mean that the concept was not there. Bright argues this point from the example of election:

    The standard terminology for expressing the concept of election seems likewise to have become firmly fixed in the seventh century and after; yet few would wish to argue that Israel began to understand herself as a chosen people, singled out by Yahweh for especial favor, only at that relatively late date. On the contrary, as far as we can tell, she so thought of herself from the beginning, although she used no fixed set of words to express that conviction.[35]

 

Conclusion

          Based on the work and research of George Mendenhall, and others who have followed, there is a general agreement that the early Mosaic covenants in Exodus and Deuteronomy followed the form of treaty found in the ancient Near East. Whether or not the form it followed was the Hittite suzerain-vassal treaty of the late Bronze Age (cir. 1400-1100 B.C.) or some later treaty form is really the only debate. The evidence is clear enough to suggest a probable connection with the Hittite forms and not those of the first millennium. Of course, there are some who disagree, most notably D.J. McCarthy and Ernest Nicholson.

        It seems to me that one’s interpretation of the evidence hinges mostly on their critical presuppositions. If one believes, as McCarthy and Nicholson do, that the key passages concerning the covenant are the result of a Deuteronomic revisionist, then the Mosaic covenant passages will be viewed as having been influenced by the later Syrian and Assyrian treaties. If, however, one regards the Mosaic passages as not being the result of a Deuteronomic revisionist, as I do, then it will seem that the covenant is influenced by the earlier Hittite treaties.