Shaking the Foundations
When we think of the Law of the Bible, we think of Moses, the lawgiver, coming down from Mt. Sinai with the Ten Commandments carved on stone tablets. The symbolism of God’s Law being “set in stone” is not lost on us. Of course, Moses finds the people worshiping the golden calf, smashes the tablets and has to climb back up the mountain to get a second copy. Nevertheless, we see Moses’ initial descent from Sinai as the very moment when God decreed, once and for always, the basic, unchanging foundation of God’s Law for God’s People. Moses completed the process of proclaiming God’s Law during the Exodus. And, tradition has it, the Law of Moses remained in force long after Israel reached the Promised Land.
We get a very different picture, however, when we read Daniel Friedmann’s recent book, which was a bestseller in Israel: To Kill and Take Possession: Law, Morality, and Society in Biblical Stories. From our initial encounter with Friedmann’s rather off-putting title (it refers to a practice that the Bible condemns, that of killing someone in order to be able to seize control of the person’s property), To Kill and Take Possession prompts a thorough reconsideration of the traditional understanding of God’s laws as “eternal and valid forever.”
Friedmann, former dean of the Tel Aviv University Law School and recipient of the prestigious Israel Prize in Law, demonstrates that the Bible itself paints a very different picture of God’s laws. From the time of the Exodus (about the 13th century B.C.E.) until the mid-seventh century B.C.E., when King Josiah rediscovered a scroll of the Law in the course of rebuilding the Temple, the laws of the Torah were often not observed, and perhaps were not even known. Many biblical stories, according to Friedmann, “indicate clearly that, after the giving of the Torah laws, the Israelites did not consider themselves bound by those laws and in fact followed a completely different set of rules.”
As an example, Friedmann points to the story of Ruth, the Moabite. Ruth was the great-grandmother of King David, yet the Torah prescribes that “no Ammonite or Moabite shall be admitted to the assembly of the Lord. Even to the tenth generation, none of their descendants shall be admitted to the assembly of the Lord” (Deuteronomy 23:3). Additional examples include Michal, the daughter of King Saul, who after being married to David was later given to Palti son of Laish, without ever being divorced from David. “Clearly this runs contrary to biblical law. David’s marriage to Bathsheba also did not conform to Hebrew law,” Friedmann adds.
As to how the Israelites might establish a monarchical system of government, the Torah contains explicit instructions: “You may indeed set over you a king whom the Lord your God will choose. One of your own community you may set as king over you; you are not permitted to put a foreigner over you” (Deuteronomy 17:15). Yet, as Friedmann points out, the elders of Israel relied on the practice of neighboring nations in demanding that Samuel appoint them a king: “Appoint for us, then, a king to govern us, like other nations” (1 Samuel 8:5). Friedmann concludes, “Samuel himself ignored the Deuteronomic precept. So it seems that the law of kingship, as it appears in Deuteronomy, was neither implemented nor even known in Israel in those days.”
Friedmann is left to conclude that, “between the exodus from Egypt and the time of Ezra and Nehemiah, the people of Israel lived by a system of law other than that reflected in the five books of the Torah. This system might have included some of the laws of the Torah, but there were clear deviations on important issues.”
Even after the Torah was rediscovered during the reign of Josiah, Friedmann contends, the law in the Bible continued to evolve through the implementation of innovative approaches that more closely resemble the legal systems of today. The legal change in the Bible is clearly displayed when one examines the transformation in the way trials are conducted in the Bible. The first two trials in the Bible—the trial of Adam and Eve and the trial of Cain for killing Abel—are conducted by God alone, “who serves as the investigator, the prosecutor, and the judge.” Thereafter, humans assume these roles, but for a while the judicial process still involves divine assistance. Decisive questions were submitted to God, and humans would interpret the answers.
To illustrate, Joshua 7 tells the story of the Israelite Achan who stole some of the war booty from Jericho that was supposed to be destroyed as an offering to God. After the Israelites’ next battle, against the Canaanite town of Ai, ends in disaster, God explains that they would continue to be defeated as long as the one who has stolen the offering remains among them. The next morning, the elders follow God’s explicit instructions and conduct a search for the thief. The tribes assemble in front of the Ark, and through some unknown process (perhaps by casting lots) the identity of the transgressor is revealed. Achan confesses, and he, his family and even his cattle are stoned to death. Israel’s army is then able to conquer Ai. Friedmann calls this method of detecting a culprit “divine investigation.”
Friedmann refers to a second type of divine participation in the human judicial process as “divine ordeal,” in which a subject undergoes some test that miraculously reveals his guilt or innocence. Numbers 5, for example, tells of the use of the bitter-water ordeal, in which a woman accused of adultery is made to drink water mixed with dust. If her belly swells, she is considered to be guilty. If not, she is deemed innocent.
A turning point in Israelite judicial process comes in 1 Kings 3, in which King Solomon brilliantly replaces divine ordeal with a psychological test. When two woman approach Solomon, each claiming she is the mother of the same baby, Solomon simply orders the baby cut in two, with half to be given to each. When one of the women says she would rather the baby be given to the other woman than be killed, Solomon declares that the baby is hers. With this act, the right and ability to judge passed from God to man.
The next stage in the development of a wholly human legal process is Daniel’s use of logic to expose contradictions and inconsistencies in witness testimony. In the apocryphal story of Susanna and the Elders, Susanna is accused of adultery by two men whom she had refused to grant sexual favors. Just before she is to be executed, Daniel rises from the crowd and asks permission to question the two witnesses separately. Their independent testimony conflicts, and Daniel declares Susanna innocent. This, too, marks a turning point in Jewish law, for previously, based on Deuteronomy 17:6, which states that “a person must not be put to death on the evidence of only one witness,” the testimony of two witnesses was deemed conclusive. With the introduction of human methods of proof—whether Solomon’s psychological test or Daniel’s employment of logic—the role of the judge shifts from merely presiding over a process of divine ordeal to one of responsibility for qualitatively assessing the evidence.
Another landmark change in biblical law involves not the judge, but the defendant. Our modern appreciation for the principle of “innocent until proven guilty” scarcely permits us to imagine that the law of the Bible initially held entire communities responsible for the sin of just one of its members. For example, the entire town of Nob (“Men and women, children and infants, oxen, donkeys, and sheep” [1 Samuel 22:19]) was killed because Nob’s priest, Ahimelech, (unwittingly) sheltered David when he was fleeing from King Saul. Friedmann labels this practice “collective punishment.”
About two hundred years later, an important step was taken toward moderating the practice of collective responsibility when King Amaziah of Judah chose not to kill the sons of the two men who had murdered his father, King Joash. That the Bible makes a point of saying that Amaziah was righteous not to kill their sons is an indication, according to Friedmann, that Amaziah’s behavior was somewhat unusual; “it was perhaps expected that the entire family would be executed. Here we witness biblical law in the course of its evolution: Collective responsibility is being replaced by personal responsibility.”
Another two hundred years later, in the early sixth century B.C.E., personal responsibility is the norm. The prophet Ezekiel declares: “The person who sins shall die. A child shall not suffer for the iniquity of a parent, nor a parent suffer for the iniquity of a child” (Ezekiel 18:20).
In a 2001 speech to dedicate the installation of a 5,280-pound granite monument bearing the Ten Commandments in the rotunda of the Alabama State Judicial Building, Chief Justice Roy Moore proclaimed that this marked a return to “those absolute standards that serve as the moral foundation of law.”1 Friedmann’s book clearly demonstrates that the Bible provides no such standards.
Friedmann’s emphasis on the changing nature of law in the Bible also prompts important reflections on the nature of biblical authority. For many, the Bible is authoritative because it tells us about the will of God, which as God’s people we should try to follow faithfully. Just as God’s “steadfast love endures forever,” and God’s faithfulness extends “to all generations” (Psalm 100:5), we assume that the legal precepts in the Bible are equally steadfast and should be followed forever. But if what the Bible shows us is an evolving law, moving away from ancient practices that society has long ago rejected, we can no longer insist that the Bible’s legal precepts should be followed simply because they come from the Bible. Likewise, we must reconsider why modern society insists certain precepts be followed to the letter while others are considered obsolete.
The significance of the Law of the Bible becomes less a matter of what a particular precept commands that we must do, and more a matter of what are the patterns, trends and vectors of change that the evolution of law in the Bible displays.
One wonders if this kind of nuanced perspective about the religious significance of law were understood in earlier times, history might have played out differently. When the Reformation burst forth in the 16th century, the Anabaptists sought to replace civil authority with a wholly Mosaic system in their communities. That act of defiance brought bloodshed and suppression by the civil authorities they had attempted to reject. How much conflict could have been avoided if the Law of Moses had not been seized and deployed as the “only” legitimate legal system for Christians to support?
History, of course, cannot be changed, but Friedmann’s insights can now be borne in mind as we face some of the contemporary social issues that the Bible also addressed centuries ago. As we invoke the law of the Bible, we must remember that we are appealing to a vast body of laws, some obsolete, some potentially significant, all from different contexts. This will require a careful reading of all the laws of the Bible—as well as a strong dose of humility.
Shaking the Foundations