Part of the 5 Things to Consider When Reading Biblical Law series
5 Things to Consider When Reading Biblical Law, Part I
How do we know what is legal and what is not today? For example, how do we personally know that ignoring a traffic sign or withholding taxes “breaks the law”? Children aren’t taught each of the federal, state, and local laws and the reasons for them. Most of us learned these kinds of laws through negative examples: we saw cars pulled over by police, or our parents warned us against not paying taxes after we got our first real paycheck. Let’s consider how deeply these encounters with law enforcers have shaped our thinking.
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If we don’t stop at a traffic sign, an officer with a firearm and a commission to use lethal power can force us to the side of the road. Once they’ve pulled us over, the officer begins an investigation that may lead to a court summons to appear before a magistrate—what we call “getting a ticket.” If we ignore that summons (or don’t pay the ticket, in some areas), then a warrant for our arrest is issued, and we will be taken to jail if the police find us—all for not stopping at a sign. The same process goes for robbing a bank, murdering a teacher, or not paying taxes: an investigation, summons, arrest, and possibly prison.
Our encounters with police or reports of them in the news and from friends have formed our concepts of law around the notion of violation and penalty.
Thus, our legal thinking has been conformed to a statutory approach to law; we see the law simply as something to be broken or obeyed. If we obey the law, the government will leave us alone. Breaking the law has financial and physical penalties. Each law is classed—misdemeanors, felonies, larcenies, and so on—with only a few options for punishment, none of which match the violation in any direct way. For instance, we do not require candy bars to be paid back for a stolen candy bar. Instead, penalties include probation, community service, fines, and arrest and detention.
A Biblical Approach to Law
To understand the legal reasoning of Scripture, we have to imagine a community where there were no armed police and no jails, and where every offense had to be reckoned by either capital punishment or reconciliation within the same community where the violation occurred. Moreover, the process of reconciling the breach paralleled the wrongdoing. If a sheep was stolen, four sheep were paid back (Exod 22:1). If someone falsely testified against another in a judicial hearing (which seems to be the main concern of the ninth commandment), then they received the same punishment due for the crime about which they lied.
The primary metaphor is not “breaking” the law, but “tending” or “keeping” the instruction (torah) of God, the same terms used for shepherding or gardening.
In the world of biblical law, legal code is a form of reasoning with Israel to shape her wisdom: “Keep [the statutes] and do them, for that will be your wisdom and your understanding in the sight of the peoples, who, when they hear all these statutes, will say, ‘Surely this great nation is a wise and understanding people’” (Deut 4:6).
The primary metaphor is not “breaking” the law, but “tending” or “keeping” the instruction (torah) of God, the same terms used for shepherding or gardening. The metaphors for disobedience are “not listening” (lo shama), “rejecting” (parar), and “crossing against” (abar). So, the biblical authors portrayed lawfulness neither as “rule-following” nor as “law-breaking,” but rather as formative. Ultimately, Israel must become the kind of people who exhibited principled justice as concrete examples of living together under God’s kingship.
Yet, we struggle to switch over to this view of the law. Popular Christian teaching has not always helped to clarify. For instance, when most people think of an Old Testament law, they often remember laws of retaliation (lex talionis): “An eye for an eye, a tooth for a tooth.” This law in particular stands out to many as an emblem of Old Testament justice. But why don’t most of us equally think of commandments such as “love your neighbor as yourself” or “love [the foreigner] as yourself for you were foreigners in Egypt” (Lev 19:18, 32)? After all, Jesus calls these “love the other” laws the second greatest commandment (Matt 23:39; Mark 12:31; Luke 10:27). It’s worth reflecting upon why “an eye for an eye” rather than “love your neighbor” has stuck so deeply into our social memory today. Though we see law as a series of “thou shalt nots,” biblical law aims at cultivating the character of both individuals and a community.
The case of “an eye for an eye” is also an example of how our framework of law today—i.e., independent statutes applied literally to the cases described—provides an inadequate comparison to the biblical sense of law. Ancient rabbis quickly noticed a problem in applying the logic of “an eye for an eye” as a law. What if a one-eyed man puts out the eye of a two-eyed man? The problem is that the principle of “eye for an eye” aims at equality in retaliation and restraint in punishment only to that which was harmed. But if a one-eyed man loses his one good eye because he broke the law, then his blindness fulfills the rule while simultaneously violating the principle. The quandary does not resolve when considering other wrongs (e.g., sexual assaults, goring oxen, etc.). What is a court to do? (More on this in Part II).
One might think “an eye for an eye” merely encourages a particular kind of retribution, but later in this series, we’ll see that even this understanding likely takes that guidance out of context. It might anachronistically apply our current versions of legal reasoning to ancient systems of law.
We tend to understand our laws today as free-standing rules that we can either keep or break—each independent of the other. But that approach simply will not help us make sense of the legal and ethical innovations found only in Genesis through Deuteronomy. We will need to think more about the ordering of law in and across the Torah, how it is similar to but different from other legal writings, the uniqueness of the Hebraic form of legal reasoning, and how it shapes Israel into a justice-oriented society.
Though we see law as a series of “thou shalt nots,” biblical law aims at cultivating the character of both individuals and a community.
In this series, I will discuss five basic things to bear in mind when reading biblical laws:
- Hebraic Law Is Unique
- Our Legal Assumptions Can Interfere
- Biblical Law Is Narrative-Engaged Reasoning
- Biblical Laws Are a Form of Reasoning
- Legal Instruction Forms Society
Let’s consider the first one here. Part II will discuss 2 and 3, and part III will discuss 4 and 5.
#1 Hebraic Law Is Unique
Biblical texts strategically remap well-known topics in ancient law codes for the sake of a general principle we call “justice” (mishpat). Though we often import too much tit-for-tat thinking into our notions of justice, we find the biblical authors resistant to any such naïve version of quid pro quo. The Hebraic law codes might feature the same topics as others in the ancient Near East, but the biblical authors are teaching something more expansive through their particular brand of justice.
Scholars have long noticed that the Hebrew legal code resembles other more ancient legal texts in the Near East. At this point, we would usually cite the Code of Hammurabi (CH, ca. 1750 BCE) as one such example which sets forth a list of laws in the conditional if/then formulation:
If anyone steals the property of a temple or of the court, [then] he shall be put to death, and also the one who receives the stolen thing from him shall be put to death. (CH, 6)
If a man puts out the eye of another man, [then] his eye shall be put out. (CH, 196)
Hammurabi enshrined 282 laws on a black basalt stele with copies hidden away in the temples and possibly scribal training courts of Mesopotamia, but notably never found in legal courts.1Martha T. Roth, “Mesopotamian Legal Traditions and the Laws of Hammurabi,” Chicago-Kent Law Review 71(Oct. 1995): 13–39; Joshua Berman, “The History of Legal Theory and the Study of Biblical Law,” Catholic Biblical Quarterly 76, no. 1 (2014): 19–39; David Wright, Inventing God’s Law: How the Covenant Code of the Bible Used and Revised the Laws of Hammurabi (Oxford University Press, 2009). The “eye for an eye” rule appears in its earliest known form in Hammurabi’s laws. Superficial similarities were widely regarded as signs of the Hebrews’ borrowing from other legal traditions like Hammurabi. Questions remain about the dissemination of Hammurabi’s law, i.e., whether the Hebrews would have even known of it. And it now appears that, despite its fame in the last two centuries, it was not used in any legal decision-making in Mesopotamia.2This raises the question: Did anyone read Hammurabi’s code? Why did Mesopotamian legal texts seem to disregard Hammurabi’s code? The stone inscriptions of the law seem to have remained in cultic contexts, possibly only being read by priests of temples. Even more perplexing, of the thousands of legal decisions recorded and surviving in Assyrian and Babylonian tablets, none appeal to, cite, or allude to Hammurabi’s code, and many flatly contradict it. This does not mean that the code was irrelevant or unknown, but that it might have played an entirely different role in Mesopotamian culture, quite unlike any of the ways we think of law today. As one scholar put it, Mesopotamia (and elsewhere) might have been missing a concept needed for statutory legislation to work: “The reason for the striking absence of all reference in the ancient Near Eastern sources to citation of the law codes in law courts is not the existence of some oral practice which has not happened to surface in the extant written sources (a perfectly feasible possibility), but a fundamental lack of the necessary conceptual basis: legalism.” Raymond Westbrook, Law from the Tigris to the Tiber: The Writings of Raymond Westbrook, vol. 1 (Winona Lake, IN: Eisenbrauns, 2009), 216.
As we will see, the biblical authors do not merely frame laws in the classic if/then conditional formula. Rather, basic principles such as lex talionis (i.e., “eye for an eye”) are situated in the larger biography of Israel. These instructions sometimes appear to be aimed either at constraining abusive power relationships for the sake of the vulnerable or at restoring persons back to the community.
Given this, we cannot make simple or direct comparisons between the Bible’s laws and today’s law, but neither can we notice its similarities to other ancient law traditions without recognizing its uniqueness. The uniqueness of biblical law in the ancient world doesn’t stop here. For those interested in reading in more detail, see Jeremiah Unterman’s Justice for All: How the Jewish Bible Revolutionized Ethics and Joshua Berman’s Created Equal: How the Bible Broke with Ancient Political Thought.
This article is part I of III.
End Notes
1. Martha T. Roth, “Mesopotamian Legal Traditions and the Laws of Hammurabi,” Chicago-Kent Law Review 71(Oct. 1995): 13–39; Joshua Berman, “The History of Legal Theory and the Study of Biblical Law,” Catholic Biblical Quarterly 76, no. 1 (2014): 19–39; David Wright, Inventing God’s Law: How the Covenant Code of the Bible Used and Revised the Laws of Hammurabi (Oxford University Press, 2009).
2. This raises the question: Did anyone read Hammurabi’s code? Why did Mesopotamian legal texts seem to disregard Hammurabi’s code? The stone inscriptions of the law seem to have remained in cultic contexts, possibly only being read by priests of temples. Even more perplexing, of the thousands of legal decisions recorded and surviving in Assyrian and Babylonian tablets, none appeal to, cite, or allude to Hammurabi’s code, and many flatly contradict it. This does not mean that the code was irrelevant or unknown, but that it might have played an entirely different role in Mesopotamian culture, quite unlike any of the ways we think of law today. As one scholar put it, Mesopotamia (and elsewhere) might have been missing a concept needed for statutory legislation to work: “The reason for the striking absence of all reference in the ancient Near Eastern sources to citation of the law codes in law courts is not the existence of some oral practice which has not happened to surface in the extant written sources (a perfectly feasible possibility), but a fundamental lack of the necessary conceptual basis: legalism.” Raymond Westbrook, Law from the Tigris to the Tiber: The Writings of Raymond Westbrook, vol. 1 (Winona Lake, IN: Eisenbrauns, 2009), 216.
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