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COPYRIGHT 1996 University of Pennsylvania, Law School
INTRODUCTION
The Song of Deborah in the Book of Judges records a stunning victory won by a coalition of Israelite tribes under Deborah and Barak over a powerful army led by the Cansanite Sisera.(1) The Song is widely viewed by biblical scholars as among the most ancient of all the biblical material;(2) by its own terms, it describes a period very early in the history of the Israelite occupation of the Promised Land, a time when, there being "no king in Israel,"(3) the common life of the tribes was organized in a loose confederacy under the guidance of "judges"--inspired leaders who would rise up to rescue the Israelites when they faced aggression from other peoples.(4) Deborah was one of these judges-and unusually, a woman as well.
This Article applies tools of legal-economic analysis to understand the function of the Song of Deborah in the life of Ancient Israel.(5) I argue that the text served a number of important norm-creating and norm-enforcing functions in the society. In its original form, the Song of Deborah was most probably an oral recordation, in a kind of intertribal account book, of how different groups complied with a norm of mutual support during a time of military exigency. The Song, along with other texts now lost, filled the important social functions of cataloging and keeping straight the obligations of the parties to a loose military alliance. The Song itself is couched in a poetic form suitable for easy memorization in an oral culture. Thus, the Song facilitated the continuation of a socially useful organization when no military force was needed.
Over time, the importance of the specific historical information recorded in the Song of Deborah became attenuated, and the Song--modified by its extended passage within an oral tradition--may well have assumed a broader role, a role that assured its preservation in the culture even while other texts with similar functions were lost. It came to epitomize the nature of the norms applicable to all the Israelite tribes within the framework of a tribal confederacy. The Song of Deborah stood, as it were, as a type of constitution or foundational text of the political system in which it arose.
Eventually, the various groups living in the hill country of Canaan coalesced into a nation-state, and the constitutional function of the Song was superseded.(6) A version of the Song was recorded, however, by the author (or authors) of the great national epic of the Israelite people.(7) By recording the Song of Deborah as part of the national epic, the author in a sense authenticated the epic itself. The author, moreover, may have seen the Song as serving a polemical purpose within the framework of an established nation-state. The political function of the Song was no longer that of enforcing a tribal confederacy, but rather that of illustrating the defects of the confederacy form of government when contrasted with its more powerful and stable successor, the monarchy.
Thus, I will suggest that the Song of Deborah served three separate functions in the life of the people by the time a version of the song was recorded in the Bible:
I. Originally, the Song of Deborah, along with similar texts,
served as a ledger in an oral culture for the recordation of inter-tribal
military obligations.
II. Later, it came to epitomize--and therefore to embody in
some constitutional sense--the overall structure of obligation and
cooperation that constituted the tribal confederacy.
III. Finally, the Song was recorded in writing in the national
epic of the Israelite people because it was a central part of the
cultural background, and because, within the social conditions of
the monarchy, it carried an implicit message about the superiority
of the monarchy as a form of government as compared with its
predecessor, the tribal confederacy.
This Article is structured as follows. I introduce the idea of confederacy as a form of social organization and discuss the fundamental problem of defection and cooperation that, in a sense, defines the confederate form. I then present the setting of the tribal confederacy as described in the Book of Judges, evaluated in light of archaeological discoveries in the Canaanite highlands. I examine the Song of Deborah itself and consider the extent to which it bears out the predictions of the theoretical model. Finally, I discuss the possible evolution of the Song within the overall biblical corpus. The Article argues that the Song of Deborah was a device by which norms of mutual cooperation were established, promulgated, and enforced in the society in which the text developed.
I. LEGAL-ECONOMIC ANALYSIS OF CONFEDERACIES
Many social organizations take the form of affiliations of autonomous entities in which different groups are required to perform their obligations at different times and which are not enforced by any state claiming a monopoly in the use of coercive force. I will call these loose organizations, for want of a better word, "confederacies" or "alliances."
Consider, for example, a political coalition or umbrella organization. Such organizations are typically made up of separate, autonomous groups, each with its own membership and objectives; the coalition works because the constituent groups share certain common interests that can be furthered by mutual support. Because support for the umbrella organization is purely voluntary, and because different issues are likely to impact constituent groups in different ways, there is always the possibility that one of the groups whose interests are not affected, or adversely affected, in a particular case will defect rather than bear the costs of contributing to the common effort. If that group defects, however, it cannot reasonably expect cooperation from others in the future when an issue arises that affects the defector more than other groups. What maintains this type of organization is the anticipation by all groups that, regardless of whether their interests are directly implicated by any particular issue, they can expect to need the cooperation of others. Therefore, they fulfill their obligations to the group even in situations where the short term costs of complying outweigh whatever benefits the constituents obtain.(8)
It is not difficult to identify other voluntary coalitions in which cooperation is ensured by the long-term, repeated nature of the enterprise. Consider, for example, the norms of the labor movement, under which union members do not cross picket lines set up by other unions. There is no legal requirement to respect picket lines, and the members of the nonstriking union may suffer some reduction in pay if they adhere to the norm. Yet they do adhere to the norm, in part for the obvious reason that they expect that, if they were to go on strike, they could count on members of other unions to respect their picket lines.
Another type of confederacy is a group of states joined in a loose association for economic or military advantage. One of the most famous of these systems is the American States under the Articles of Confederation. The Federalist Papers, indeed, contain a classic account of the difficulties faced by a confederate form of government as compared with the advantages of the proposed union.(9)
Similar norms can be found in international relations. Countries may commit themselves to providing mutual support and may embody their commitments in treaties that have the ostensible form of law. Yet treaties can be, and are, broken, and there is no international court that can force a country to adhere to its treaty obligations. Despite the fact that international treaties are largely unenforceable, they command a fairly high degree of compliance. The norms of international cooperation cause countries to come to the aid of other countries, in large measure because they want to be able to count on other countries helping them, should the need arise.
Norms of mutual support and help underlie less public modalities of cooperation as well. Consider marriage. The promise to love and honor in the traditional marriage vow is made "for better or for worse," "in sickness and in health." A marriage is a cooperative enterprise for mutual support, and it is rare that both partners in a marriage need help at the same time. Spouses give support to one another in the expectation that they can count on help themselves in the future. Many of the features of the unraveling of marriage in divorce can be understood as consequences of the breakdown of the norm of mutual support and of the deleterious effect on cooperation that occurs when the expectation of repeated interactions is replaced by the anticipation of a final and permanent separation.
While marriage is the most obvious interpersonal arrangement in which norms of cooperation play a fundamental role, all forms of friendship display similar features. Indeed, the importance of mutual cooperation is stressed in folk sayings on the subject of friendship--the derision accorded to the fair-weather friend is explicitly due to the fact that the person fails to come through in a pinch, whereas the adage "a friend in need is a friend indeed" can be understood as emphasizing the fact that those who provide help to a friend can expect true friendship (or at least a reliable return of the favor) in the future.
A feature that pervades all of these arrangements is the fact that they have duration. They persist over time--often long periods of time. It is, indeed, this temporal dimension that gives rise to the arrangements in the first place. If an exchange of favors could take place simultaneously, each party could monitor the other's performance and refuse to perform if he or she observed the other party's default. The need for an ongoing relationship arises only when one party has to perform based on trust that the other party will carry through his or her obligations at a later date. Moreover, other things being equal, the longer the duration of a relationship, the greater benefits it offers. We may assume that in many cases the parties to a relationship will tend to find themselves in need of support on a random basis; they anticipate that they will require help at some point in the future but they cannot predict when. In such cases, a relationship that has the promise...
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