Biblical Law

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The Torah—the five books of Moses—has rightly been called a book of Law. It is, however, idealized Law—what should be, or, more precisely, what God intended. In the second section of the Hebrew Bible—the Prophets—we learn about the reality.

In Jewish tradition, the second section of the Bible, is composed of Former Prophets and Latter Prophets. Former Prophets includes the books of Joshua, Judges, Samuel and Kings, which narrate the history of Israel from its settlement of the land of Canaan until the destruction of the First Temple. This corpus views some six centuries of Israelite history as a disastrous failure: Israel failed to fulfill the conditions of its covenant with God, on which its well-being depended.

The corpus of the Latter Prophets comprises the oracles of named prophets. These oracles were proclaimed from the middle of the monarchic period (mid-eighth century B.C.E.)^a to the restoration after the Babylonian Exile (end of the sixth century B.C.E.). They expound a consistent interpretation of the events that befell Israel from the viewpoint of God, with warnings and consolations related to this interpretation.

The Torah is mainly legislating literature, in a way constitutional literature, that lays down in God’s name rules and standards of individual and corporate behavior aimed at fashioning Israel into a holy people. The laws of the Torah are formulated in a variety of styles: rulings for hypothetical cases, positive and negative commandments and rhetorical elements designed to move the recipients to obedience.

The establishment of an idealized legal order in the Torah follows what can be described as a failed divine experiment that culminated in the Flood, in which God destroys all but one human family.

In the biblical view, all power belongs to God. He uses his power for two purposes: (1) the creation and sustenance of the world, and (2) the maintenance of a moral order. After creating the world and everything in it, in order to promote a moral order God advises Adam and Eve of the conditions of their happiness in the form of a few prohibitions. In exchange for accepting some limitations on the exercise of their power (thus acknowledging God’s sovereignty), they will attain happiness. From the beginning God has trouble obtaining human acquiescence to his supremacy and human acceptance of the order he would impose. By the generation of the Flood, rebellion against God’s order is rife and inflicts great harm: “The earth was filled with violence” (Genesis 6:11). The human, race has become monstrous and is wiped out in the Flood.

God then seeks an alternative means to establish a moral order on earth; out of all the families of the earth he chooses that of Abraham, Isaac and Jacob as the human arena of his self-revelation. Among them he will reign: their descendants he will draw near to him, consecrating them as his kingdom of priests, his holy nation. By his deeds in this modest arena, his Godhood will be manifest and all people will come to see the blessings he confers on those who acknowledge him.

In Israel, God embodies his moral order in a legal program.

Even in the earlier failed divine experiment, we notice a tension between God and humanity over the issue of power. This tension will persist. While God has dominion in heaven and earth, he has made man in his image and given him dominion over the earth and its resources. Competition between the two dominions pervades the opening stories of the Book of Genesis. Adam and Eve transgress God’s ban in the hope that they may become “like divine beings” (Genesis 3:5). A later generation plans to build a tower whose top would reach heaven (Genesis 11:4). Humans are in a quandary: They must exercise power to fulfil their commission of dominating the earth, yet the exercise of power induces delusions of grandeur that lead to destruction.

The second time around God establishes an elaborate legal framework in order to achieve a moral order. These are the collections of laws comprising the bulk of the Torah.

A number of features distinguishes the laws of the Torah from all other treaties and 043law collections of the ancient Near East. We will examine some of these features individually, but overall we will notice an aversion to the concentration of power. Conversely, we will notice a tendency to equalize resources among the citizenry. In these respects, the system of biblical law resembles democracy. It resembles it, too, in the aspiration to create a society voluntarily united around shared values, in the achievement of which all are called on to participate and share responsibility, Finally, the system of biblical law resembles democracy in its regard for the individual, whose freedom, person and property it protects with a solicitude unparalleled in ancient societies.

On the other hand, sovereignty and the authority to legislate belong only to God; thus, the biblical person is ideally heteronomous, subject to external controls, not autonomous. Moreover, the collective responsibility that members of the covenant community share invites mutual surveillance and pressure to conform to divine norms, as oppressive to the individual as any tyranny.

Let us look separately at some of the aspects of the aspects of biblical law.

One of the features that distinguishes biblical law from other ancient Near Eastern legal collections is the profusion of motive clauses. A motive clause is appended to the law itself, not to add further requirements, but to give the motive or the rationale behind the law.

Professor John Welch has suggested several kinds of motive clauses.¹ Some are etiological, underlining the cause or origin of the law; for example, the law requiring Sabbath observance: “for six days the Lord made heaven and earth” (Exodus 20:11). This is a motive clause.

Other motive clauses are promissory, for example, “that your days may be long upon the land” (Exodus 20:12).

Still other motive clauses are explanatory, as in the prohibition against walking up to an altar on steps, “that your nakedness be not discovered thereon” (Exodus 20:23 in Hebrew; 20:26 in English). Some motive clauses evoke sympathy (“for you know the heart of a stranger” [Exodus 23:9]); others hold out threats (“for I will not justify the wicked” [Exodus 23:7]). Many motive clauses, however, resist easy classification.

As a whole, motive clauses reflect a teaching function. In this way, they shape national character.

Here are two other examples of motive clauses, taken, as the examples above, from the so-called Covenant Code of Exodus 20–23 (the motive clauses are italicized):

“You must not wrong the alien or oppress him, for you were aliens in the land of Egypt” (Exodus 22:21).

“If you take the garment of your fellow as a pledge, by sunset you must return it to him; for it is his only clothing, the sole cover of his skin; wherein shall he lie down?” (Exodus 22:25).

Here is an example from the priestly laws of Leviticus:

“Do not make yourselves detestable by eating any swarming creature. Do not defile yourselves with them so as to become unclean, for I an Yahweh your God; so sanctify yourselves and be holy, for I am holy” (Leviticus 11:43–44).

The rhetorical element—frequently embodied in motive clauses—is so prominent in the Book of Deuteronomy that one scholar has said of its legal corpus, “It is law preached.”² One example will suffice to convey an impression:

“[Three cities of refuge must be appointed for the accidental slayer] lest the redeemer of blood pursue the slayer, for his mind will be inflamed, and, catching up with him, he will kill him though he is not liable to the death penalty for he was not previously his [victim’s] enemy” (Deuteronomy 19:6).

In Near Eastern law codes generally, approximately 5 percent of the laws contain motive clauses; in biblical laws, it is about 50 percent.³

Motive clauses seek to persuade. This goes hand in hand with the public character of biblical legislation. It is promulgated by being proclaimed. It is accessible to all. The dissemination of the laws is of their essence. Unlike other ancient systems of law (or modern ones for that matter), biblical law is designed to educate the public. Having undertaken to become a holy nation, Israel must be trained to a holy life. The laws of the Torah constitute the regimen and rule of the people conceived as a priestly order. Since the success of God’s venture depends on each individual Israelite both knowing the rule and willingly obeying it, it is not only published but suffused with rhetoric calculated to move the individual to assent to its exacting demands.⁴

To further publicize the law, every seven years the people of Israel were to participate in a covenant renewal ceremony that included a public recitation of the Torah—a reenactment of the lawgiving at Mt. Sinai (Deuteronomy 31:10–13). Parents even have a duty to teach the divine commandments to their children (Deuteronomy 6:7, 11:19).

Another distinctive feature of the ideal polity created by biblical law is the dispersal of power. Numerous devices are designed to prevent undue accumulation and concentration of power.

Let us begin by considering economic power. Accumulation of economic power is severely impeded by biblical law. The foundation of ancient economy was land ownership; God grants the Israelites a land for their possession, but conditions their continued tenancy on obedience to his laws. The Israelite must share the wealth gained from the land with unfortunate fellow citizens. The farmer is obliged to let the land lie fallow once in seven years, “so that the needy of your people may eat [its crop]” (Exodus 23:11). The fullest realization of the idea that God owns the land—and a serious curb on economic initiative—is the jubilee, every 50th year, in which all sales of land (occasioned in ancient Israel by bankruptcy) are annulled and all real estate reverts to its owner (who originally received it in accord with the divine allocation of the land of Canaan among the tribes of Israel at the time of the conquest): “The land shall not be sold permanently, for the land is mine and you are aliens resident with me” (Leviticus 25:23). Who would want to buy land when all he actually gets from the purchase is crop years to the next jubilee? Who will invest in a plot of purchased ground when any improvement will in the end redound to its original owner? Such a constraint prevents the accumulation of real property (the basis of economic power); its effect is to keep the economic strength of all families roughly equal (or at least static).

Similar dampening of economic enterprise and growth must result from the ban on interest, by which all loans are converted into charity; that is, money cannot be used to make money (Exodus 22:25; Leviticus 25:35–37.).

The rule that slaves must be emancipated after seven years or at the jubilee year (Exodus 21:2–6; Leviticus 25:25–28; Deuteronomy 15:12–18) prevents the accumulation of human capital, “for the Israelites are my slaves,” says God, “mine, whom I liberated from the land of Egypt” (Leviticus 25:55).

Add to these such provisions as the poor tithe (Deuteronomy 14:28–29), the septennial cancellation of debts (Deuteronomy 15:1–6) and the injunction to lend money generously to the needy at no interest (Deuteronomy 15:7–11) and it becomes clear that the sometimes explicit purpose of the laws to assert God’s sovereignty and their implicit reflection of his 044attributes result in measures that distribute material resources among the people with a clear tendency toward equalization. A focus of human power to rival that of God is precluded.⁵

Political power is also limited. Each town was to have Its tribunal of elders, authorized to judge and punish (Deuteronomy 16:18; 22:15ff.). Except for an isolated paragraph in Deuteronomy that treats the monarchy in the laws, no central government is recognized. Pointedly, this paragraph dealing with the king curbs his appetite for power and prestige:

“He must not have many horses, so as not to return the people to Egypt in order to add to his horses; he must not have many wives so that his mind not be diverted; nor may he have much silver and gold. When he ascends his royal throne he must have a copy of this teaching written for him under the aegis of the Levite priests; it shall be with him and he must read it all his life in order that he may learn to fear the Lord his God…that his heart not grow haughty toward his brothers and that he not deviate from the commandments to the right or to the left” (Deuteronomy 17:16–20).

Such a conception of a humble king seems paradoxical, if not quixotic. It is unparalleled in antiquity.

In short, the king himself is subject to God’s Torah. The opprobrium that attaches to his accumulating symbols of prestige and power cannot help but undercut his absolute sway over the people.

As John Welch has observed, “The limited powers of the monarchs of Israel, especially the requirement that they be ‘one from among the brethren’ (Deuteronomy 17:15), surely stands in sharp contrast to other ancient kingship concepts in which the king was viewed as the near-divine provider of all to his people, including life itself.”⁶

Many items of biblical law and religion are paralleled in other cultures of the ancient Near East. But the accumulation of factors and rulings tending so markedly to whittle down the power of central authority is without analogy.

Even priestly perquisites are circumscribed (for example, Deuteronomy 18:1–5) and priests can be disqualified from divine service (Leviticus 21:16–23). The publication of these laws set practical limits to priestly authority and prestige in the eyes of the populace.

Because Israel is to be a kingdom of priests, it provides for the common responsibility of each for all (as in the collective punishment imposed on the community that failed, for example, to prosecute a notorious idolator [Leviticus 20:4–5]). On the other hand, this common responsibility implicitly heightens the worth of the individual: by imparting information to her or him, both individual accountability and individual power are increased. Duties toward others are matched by the rights one may claim from others.

The program described in the Torah is, however, an idealized construction. The reality is described in the Prophets.

The prophets whose books are incorporated in the Bible lived, for the most part, during the Israelite monarchy. The monarchy began with Saul, David and Solomon in the tenth century B.C.E. and continued thereafter as the Divided Monarchy—Israel in the north and Judah in the south. The United Monarchy arose in an effort to free Israel from the control of the well-organized league of Philistine cities. “Give us a king,” the people demand of the prophet Samuel, “who will judge us and lead us forth and fight our battles” (1 Samuel 8:19–20).

The attempt to reconcile the kingship of God, of whom the prophet was the spokesman, with the kingship of a human produced intolerable tension. Where did the royal freedom to initiate and decide end, and where did royal obligation to obey God’s word as conveyed through the prophet begin?

The monarchy could attain its goals only by becoming a national focus of power. That entailed mobilization of public resources, including confiscation of private property and levies on workers for the army and public works. A class of royal officials developed, entitled to make exactions from the people and use them as they saw fit. Some confused the public good with their personal gain. The concentration of resources led to social inequality, and as the prestige of the court and of the officialdom grew, so did their insolence and insouciance toward the mass of the people.

The policy of the monarchy subordinated the ideal of becoming a holy nation to the achievement of national prestige and security. The monarchy was concerned with building up the military and establishing alliances with powerful neighbors. In the end it subverted the institutions of religion into instruments of royal policy.

Beginning with Amos in the mid-eighth century B.C.E., the classical prophets directed their critique against the social, political and spiritual abuses of the monarchy. The prophets saw themselves as the spokesmen for Israel’s ancient values. They were not interested in adjusting those values to changed circumstances. They denounced the insolent, exploitative, tyrannical use of royal power and prerogative. They denounced the enlisting of God and religion to serve state ends.

As Yehezkel Kaufmann has noted, Hosea was “the first man in history to condemn militarism as a religious-moral sin” (Hosea 8:14; 10:13–14; 14:3).⁷

Isaiah put power politics on the same footing as idolatry; he denounced reliance on arms, fortress and alliances with great powers. He urged trust in God and a quietism that waits on God’s salvation.

Jeremiah and Ezekiel gave voice to God’s terrible decision that the present Israel was so degenerate that God could realize his original purpose for the people only by wiping the slate clean and starting over again with renovated survivors.

Israel was torn between ideal and reality. Israel’s prophets mercilessly exposed the gap between the ideal and the reality. The conflict could be reconciled only by a creative interpretation of the legislation, applying the old ideal to changed circumstances, but the prophets did not offer such a reconciliation of that power and bridge the gap between the ideal and the reality.

As John Welch has observed, modern society has much to learn from the value postulates of the biblical legal system—for example, its attitude toward limiting the concentration of political power, its broad commitment to the equality of mankind, its attitude toward law not as something in which to find loopholes but as the essential fabric without which life and society could not survive, the responsibility of all members of society to know and teach and participate in the enforcement of the law, and its concern for protecting the weak, the poor, the widow and the orphan. As Welch has put it “All these are lessons that need to be learned and relearned.”⁸

Students of the Bible in its setting find 045many of its legal and ethical ideas paralleled in the writings of Israel’s neighbors. The basic similarity of all members of the human race is a concept congenial to biblical authors. After all, in the biblical view, all people are descended from Adam and, like their ancestor, all are created in “the image of God.” The radical shift that resulted from Israel’s covenant with its God is not due to any new elements in the society envisioned by the Torah. The same building blocks, however, are arranged in new configurations, forming an unprecedented hierarchy of values—and this was indeed a revolutionary change!

With the permission and approval of Professor Moshe Greenberg of Hebrew University, we have adapted this article from his paper “Biblical Attitudes Toward Power: Ideal and Reality in Law and Prophets,” in Religion and Law: Biblical-Judaic and Islamic Perspectives, edited by Edwin B. Firmage, Bernard G. Weiss and John W. Welch (Winona Lake, IN: Eisenbrauns, 1990) and from the exchange that ensued between Greeberg and Welch in the same volume.

The Torah—the five books of Moses—has rightly been called a book of Law. It is, however, idealized Law—what should be, or, more precisely, what God intended. In the second section of the Hebrew Bible—the Prophets—we learn about the reality.