Part of the 5 Things to Consider When Reading Biblical Law series
5 Things to Consider When Reading Biblical Law, Part III
The biblical laws often return to a primary concern for people who could be exploited: women, children, the poor, and non-Hebrews. The mandate not to exploit the poor or immigrant cannot be upheld by mere individuals. Instead, it requires a society-wide effort (cf. Exod 23:21–27; Lev 19:13–14, 33–36). God has reasoned with Israel through His instruction (torah), and He later warns the whole society through His prophets and then holds them accountable as a nation. So, how does God use law to reason with Israel, and why can’t individuals be ethical all on their own?
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#4 The Torah Is Legal Reasoning
By “legal reasoning,” I mean the biblical authors’ movement between general principles and concrete instances to develop concepts, and not just to state rules. We’ve already considered one straightforward example in Leviticus 18: the prohibition of sexual relations with a “close relative” (Lev 18:6). Any reader of Genesis would probably desire some clarity on what counts as a close relative. Leviticus 18:7–18 goes on to provide many examples without exhaustively listing every possible one; for instance, the list does not include grandmothers. However, if the list is meant to outline a paradigm of “types of close relatives,” then its logic would extend to grandmothers.
Ancient Near Eastern use of lists to construct legal concepts has been studied under the German title Listenwissenschaft (i.e., “list-science”). A modern statutory view of law involves enumerating all possible legal violations and associated penalties. But deriving paradigms from lists requires careful reasoning and not mere rule-following. The audience must consider how the lists direct them to think and act sexually in any relevant context. So, beginning with the abstract principle “no sex with close relatives,” the list explores many but not all instances of what counts as a close relative, generating an evocative paradigm in the process. By extending the logic of the list, we arrive at a paradigm that includes grandmothers.
For a more sophisticated example of this reasoning, let’s return to the statement often mistakenly referred to as lex talionis in Exodus, which appears three times in the Torah (Exod 21:24; Lev 24:20; Deut 19:21).1The variations on the statement in Leviticus and Deuteronomy directly fit into their contexts, which concern equity for murderers and those plotting murder. It has always been difficult or impossible to apply this law as if it were a simple rule to be broken or kept. Aside from the gruesome image it may conjure for a modern audience, ancient Hebrews quickly noticed a problem in the logic of the law.2R. Shimon Bar Yochai reasons in the Mishnah that a blind man would thus be exempt from lex talionis. b.Bava Qamma 84a–b. What if a one-eyed man puts out the eye of a two-eyed man? The principle of “eye for an eye” seemingly aims at parity in retaliation, restraining punishment to only that which was harmed. But if a one-eyed man harms the eye of a two-eyed man and loses his one good eye by the rule of “eye for an eye,” then the rule is kept while the principle is simultaneously violated. Conundrums of a similar kind emerge quickly—sexual assault, causing the loss of limb, etc.—indicating that this law is meant to express a general principle instead of a literal rule.
The literary context of Exodus’s “eye for an eye” law demonstrates this principle, and that this law is not actually commanding retaliatory eye-gouging. The context reveals both (1) what types of harm are to be repaid and (2) that the vulnerable are to be protected against these types of harm. Specifically in Exodus, “eye for an eye” emerges as a principle that protects servants who subsist under their employer’s patronage. In a stretch of teaching on slaves and relations, the text makes several observations about fights that end in murder or extensive harm. One such fight involves two men and a pregnant woman (Exod 21:22–24).3As evidence that the quarrel with a pregnant woman comes perpendicular to the codes on slaves, Bernard S. Jackson observes that following this precise concrete example with “tooth for a tooth” instruction does not make sense, “the foetus . . . can hardly lose a tooth.” Wisdom-Laws: A Study of the Mishpatim of Exodus 21:1–22:16 (New York: Oxford University Press, 2006), 185. Though this fight seems disconnected from the treatment of slaves, it speaks directly to wrongs being repaid according to the harm (Exod 21:22). And then comes the “eye for an eye” statement, but notice the ensuing statements (Exod 21:24–27):
If any harm follows, then you shall give life for life, eye for eye, tooth for tooth, hand for hand, foot for foot, burn for burn, wound for wound, stripe for stripe.
When a slave owner strikes the eye of a male or female slave, destroying it, the owner shall let the slave go, a free person, to compensate for the eye.
If the owner knocks out a tooth of a male or female slave, the slave shall be let go, a free person, to compensate for the tooth.
Does this mean we could strategically beat our servants, avoiding the eyes and teeth, while honoring the legal and ethical principle portrayed here? That suggestion seems foolish considering the whole system of thought developed in Exodus. Equally, the law’s stated consequence for hitting a servant prevents us from taking “eye for an eye” literally. A master who strikes a servant’s eye is not punished with his own eye being struck. Instead, the servant is freed from the master’s tyranny, who loses the servant and his or her labors.
The phrase “eye for an eye” is Exodus’s shorthand way of referring to a principle that it fleshes out in the concrete illustration of striking one’s slave. Though this phrase sounds harsh to modern ears, scholars have noted that lex talionis, a term of retribution borrowed from Roman law, cannot be in view here. The practical instructions of “eye for an eye” are not brutally retaliatory, but instead shield vulnerable servants from physical abuse by restraining those who have power. I do not want to whitewash the regulation of servitude in these texts, but the legal philosophy seemingly worked out in this section entails a principle that warns employers against treating a slave as a beast of burden, to be whipped or hit. What’s more, the Torah’s stories and legal material pre-indicts the maltreatment of other vulnerable things, both plants and animals, for the sake of their protection (cf. Gen 9:8–17; Exod 20:10, 23:12, 24; Deut 5:14, 20:19).
In this context, striking one’s slave in the eye or tooth—and I assume a principle of extension to any part of their body—violates the principle of “eye for an eye.” It also means that the example of two men fighting illustrates the types of harm to be repaid. It is one of several illustrations that aggregate across the Torah to construct its notion of payback for harm. And perhaps surprisingly to us, these examples focus on instructing slave owners not to harm. Indeed, the Torah warns them not to harm their slaves lest they incur financial loss as the natural consequence of this mistreatment.
A note on Exodus 21:21: translations that change “the slave is as silver” to “for the slave is the owner’s property” are, to me, unfortunate. If someone kills a servant, then the slave’s life is to be avenged (Exod 21:20). But if someone wounds a servant so that they take a few days to recover, then the punishment seems to be the loss of the servant’s labor—naturally, for the servant’s labor is his means of survival (i.e., “the slave is as his silver”). Likewise in the preceding verses, if the two men fighting results in death, then the death is to be avenged. But, if it results in lost labor through harm, the one at fault “shall pay for the loss of his time” (Exod 21:19). For the one who has harmed their slave, the equivalent is the lost labor, which technically speaking belongs to the employer. The point is that the slave provides life-sustaining labor to the employer, so, the Torah reasons as it warns: harm the vulnerable to your own detriment. (Soon after, Exodus warns with more vigor: “If you do abuse [the vulnerable], when they cry out to me, I will surely heed their cry; my wrath will burn, and I will kill you [all] with the sword.” Exod 22:23–24.)
The abuse of the vulnerable is foolish. It may sound abrupt or harsh to our ears, but loss of time is loss of work. That’s true in malpractice lawsuits today and is still calculated in wrongful death suits. In an agrarian subsistence economy, loss of work potentially threatens the entire family unit. These families included the third and fourth generations working together with servants to survive. I take the author to mean by this phrase—which literally says that the servant is “as silver to him”—that Hebrews who harmed servants harm themselves. It’s practically foolish, but the legal reasoning goes further to elevate slaves as their equals in matters of harm. The Torah portrays eye-for-an-eye justice uniquely as warning against Hebrews harming slaves and other vulnerable folks, such as pregnant women—not against Hebrews harming Hebrews of equal position.
The law in Exodus on repaying harm ultimately subverts expected power relationships—i.e., it’s the person of privileged position who might be the one required to repay his slave. Again, by using examples situated in the social structures of daily life, the biblical authors avoid many legal traps of strict rule-following. Instead, they contextualize general legal principles by reasoning from principle to instances and back.
Finally, in the larger matrix of instruction spread across the Torah, scholars often note that these legal texts evince a common rather than statutory law tradition. Laws demonstrate instances and precedents. Because laws are instructive in the Hebraic tradition, they can unfold across the Torah as addenda to previous instructions in new circumstances or with greater specificity.
Joshua Berman uses the U.S. Constitution as an analog, since the original text of the Constitution is never changed. Rather, later amendments are added to sharpen the reading of the earlier text in light of the new context or the need for clarification.4Joshua Berman, Inconsistency in the Torah: Ancient Literary Convention and the Limits of Source Criticism (New York: Oxford University Press, 2017), 171–91.
#5 Legal Instruction Shapes Society
Even though many of us read commands in the biblical texts as individuals, the law texts always fuse individual and corporate accountability. Loving one’s neighbor and the foreigner sounds like something one person can do. But we discover in biblical law that loving the foreigner or neighbor required participation from judges, merchants, and the households of Israel. Israel would be judged by God on how well they as a nation had loved the foreigner, cared for the vulnerable, and generally maintained justice in the land. Later, as recorded in the prophets, when Israel—as a whole—failed to keep this justice across the land, the rare individuals who acted rightly were killed along with the guilty or went into exile with the masses.
We cannot remind ourselves enough that this legal reasoning intends to form Israel into a wise and just people, which is impossible for individual Israelites to accomplish. A drop in the river cannot change its course. The ethical principles worked out in concrete legal contexts are often based upon national history. Why must Israel love the neighbor (easier) and foreigner (more difficult) as themselves? Exodus commands against mistreatment: “For you were foreigners in the land of Egypt” (22:21) and “you know the heart of a foreigner for you were foreigners in the land of Egypt” (23:9). Leviticus presses further to demand:
The foreigner who resides with you shall be to you as the citizen among you; you shall love the foreigner as yourself, for you were foreigners in the land of Egypt: I am YHWH your God. (Lev 19:34)
Israel’s national experience of mistreatment should translate to her loving treatment of others, even foreigners. This logic is also extended directly to widows, the fatherless, the elderly, slaves, and even animals and plants (cf. Exod 23:4–5; Deut 20:20).
This insistence on justice toward the classically vulnerable and marginalized folks is unique to the biblical law. It becomes the basis of all future prophetic critiques of Judah and Israel, including those of Jesus and his apostles. And, it eventually becomes the justification for God’s destruction of the majority of Israel’s tribes in the eighth and sixth centuries BC.
One commonly overlooked paradigm of Israel’s unique and non-statutory law is now obvious: the goal was not to keep (as opposed to break) the law, as we understand those metaphors today. Rather, the goal was to become discerning and just for the sake of all the families of the earth.
Finally, we tend to think of ourselves today as individuals who are solely responsible for our own ethical behavior. Since many of our recent views on ethics have been shaped by philosophers such as Aristotle, Immanuel Kant, John Stewart Mill, and John Rawls, we generally conceive of ethics as an individual responsibility.
In biblical law, many of the ethical norms being fostered cannot be fulfilled by individuals, though individuals are held responsible for their own participation. The biblical authors seem to envision an integrated individual-group ethic.
To practice God’s torah means to imbue God’s wisdom into the entire nation because the nation can both sin in institutionalized ways and be held accountable for societal evils that they allowed through negligence or cultivated through oppression (cf. Exod 22:21–27; Amos 4:1; Isa 1:21–23; Neh 9).
Justice in biblical law cannot be reduced to what it often means today: “penalty for violation.” The law acts as instruction, warning, and guidance for Israel to become a wise and discerning people who live out the life-giving principles of justice (Deut 4:6).
This article is part III of III.
1. The variations on the statement in Leviticus and Deuteronomy directly fit into their contexts, which concern equity for murderers and those plotting murder.
2. R. Shimon Bar Yochai reasons in the Mishnah that a blind man would thus be exempt from lex talionis. b.Bava Qamma 84a–b.
3. As evidence that the quarrel with a pregnant woman comes perpendicular to the codes on slaves, Bernard S. Jackson observes that following this precise concrete example with “tooth for a tooth” instruction does not make sense, “the foetus . . . can hardly lose a tooth.” Wisdom-Laws: A Study of the Mishpatim of Exodus 21:1–22:16 (New York: Oxford University Press, 2006), 185.
4. Joshua Berman, Inconsistency in the Torah: Ancient Literary Convention and the Limits of Source Criticism (New York: Oxford University Press, 2017), 171–91.
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Image created by Rubner Durais