UUnniivveerrssiittyy ooff PPeennnnssyyllvvaanniiaa CCaarreeyy LLaaww SScchhooooll PPeennnn CCaarreeyy LLaaww:: LLeeggaall SScchhoollaarrsshhiipp RReeppoossiittoorryy Faculty Scholarship at Penn Carey Law 6-30-2011 TThhee MMoossaaiicc LLaaww iinn CChhrriissttiiaann PPeerrssppeeccttiivvee David A. Skeel Jr. University of Pennsylvania Carey Law School Tremper Longman Westmont College Follow this and additional works at: https://scholarship.law.upenn.edu/faculty_scholarship Part of the Biblical Studies Commons, Christianity Commons, Commercial Law Commons, Criminal Law Commons, Family Law Commons, and the Religion Law Commons RReeppoossiittoorryy CCiittaattiioonn Skeel, David A. Jr. and Longman, Tremper, "The Mosaic Law in Christian Perspective" (2011). Faculty Scholarship at Penn Carey Law. 367. https://scholarship.law.upenn.edu/faculty_scholarship/367 This Book Chapter is brought to you for free and open access by Penn Carey Law: Legal Scholarship Repository. It has been accepted for inclusion in Faculty Scholarship at Penn Carey Law by an authorized administrator of Penn Carey Law: Legal Scholarship Repository. For more information, please contact [email protected]. The Mosaic Law in Christian Perspective David Skeel & Tremper Longman Introduction Scholars who wish to trace the implications of scripture for contemporary law frequently must look for lessons and hints in passages that lack any explicit legal content. Not so with the final four books of the Pentateuch: Exodus, Leviticus, Numbers, and Deuteronomy. These books are full of law. When Jesus speaks of the law and the prophets, the “law” he has in mind is these books, which contain nearly all of the Mosaic law. Christians and Christian churches come to the regulations in these books at several removes. God gave the law to a particular community—Israel-- for a particular place. Its regulations included not only criminal and civil law, but also requirements for their worship. For Christians, many of the laws no longer apply, and others do not apply in the same way, as a result of the new covenant inaugurated by Christ’s life, death and resurrection. As we explore the implications of the Mosaic law for contemporary secular law, we therefore must proceed gingerly. The issues we will be considering have vexed theologians and the church for centuries. We cannot claim to resolve them definitively, much less offer a simple blueprint of the implications of the Mosaic law for particular issues, controversial or otherwise. But we believe that serious attention to these four books would force many Christians to radically rethink their understanding of the role and emphasis of secular law. In the discussion that follows, we first place the Mosaic law in covenantal and New Testament perspective. We then briefly summarize the regulation in each of the four books under consideration.. After noting some of the distinctive characteristics of the laws, we explore their implications for contemporary criminal law; economic and commercial law; and marriage, divorce and sexuality. 1 The Law in its Context Old Testament Context In the Old Testament, the law is situated in a literary and theological context. In the first place, law is covenantal. The covenant is a metaphor for God’s relationship with Israel that itself is legal. In the past half century, due to comparisons with ancient Near Eastern texts, it has become increasingly clear that covenant (in Hebrew berit) is more specifically described as a treaty. God, the great king, enters into a treaty with his subject people. In ancient Near Eastern treaties and in biblical covenants, law follows historical prologue. The historical prologue rehearses the beneficial actions that the great king has performed on behalf of the vassal. After the historical review, the great king presents the law that he expects the vassal to obey. In other words, law does not create the relationship, but rather is in response to the previous actions of the sovereign. The law is then followed by sanctions or blessings and curses that follow obedience or disobedience. The book of Deuteronomy presents Moses’ final sermon to the Israelites before he dies and they enter into the Promised Land. The form of this sermon roughly follows that of a covenant/treaty document since he is exhorting them to reaffirm that relationship established at Sinai (Exodus 19-24), which has become known as the Sinaitic or Mosaic covenant. Here we see the law (Deuteronomy 4-26) following the historical prologue (Deut. 1:9-3:27) and preceding the blessings and the curses (Deuteronomy 27-28).i Noting the placement of law after the historical review is of important theological significance, reminding Israel that law does not establish relationship with God. On the contrary, God’s gracious redemption precedes law and law is a way of expressing gratitude to God. That grace precedes law is concisely illustrated by the fact that the Ten Commandments themselves are preceded by a short historical prologue (“I am the Lord your God, who brought you out of the land of Egypt, out of the house of slavery…,” Exod. 20:1). However, the fact that the law is followed by blessings and curses also indicates that obedience maintains the divine-human relationship. If Israel disobeys the law, then the curses of the law come into effect. 2 The second important matter of context to bear in mind to begin a study of the Old Testament law has to do with the relationship between the Ten Commandments and the case law. The Ten Commandments articulate general ethical principles, while the case law applies those principles to specific cases according to the sociological and redemptive historical situation of Israel. An example would be the case law that states, “When you build a new house, you shall make a parapet for your roof; otherwise you might have bloodguilt on your house, if anyone should fall from it” (Deut. 22:8). This case law applies the principle enunciated by the sixth commandment: “You shall not murder” (Deut. 5:17, see also Exod. 20:13) and applies it to Israelite residential architecture. After all, in ancient Israel the roof was living space and an unprotected roof meant that people could easily fall and get injured or die. A third important feature of Old Testament law, especially when later considered from the perspective of the New Testament church, is that it is addressed to Israel, which is a nation. That is, the people of God have the form of a nation (in contrast to the present time when the people of God are drawn from many different nations). This transition from the Old to the New Testament will affect how the Old Testament law is appropriated today. New Testament Context The frame for Christian consideration of the Mosaic law comes from Jesus’s familiar admonition in the Sermon on the Mount. “Do not think that I have come to abolish the Law or the Prophets,” Jesus said. “I have not come to abolish them but to fulfill them. For truly, I say to you, until heaven and earth pass away, not an iota, not a dot, will pass from the Law until all is accomplished.”ii The terms of Jesus’s embrace of the law—he will “not abolish” and he will “fulfill”-- rule out two stances toward the Mosaic law that have sometimes proven tempting for Christians.iii Christians cannot ignore the law, but neither can they simply assume its direct, unfiltered relevance to contemporary concerns. In its most egregious form, the first error is known as Marcionism, after a heretical second century theologian who insisted that the Old Testament was altogether superseded by Christ and has no further relevance.iv The second, less common error colored theonomy, a small but much discussed theological eruption whose advocates called for the direct application of Old Testament law in a Biblical American polity.v 3 Christ’s words not only warn us against either ignoring Old Testament law or applying it in unfiltered fashion. They also characterize the fulfillment of the law as ongoing, a process that Christ has begun but which will continue until “all is accomplished.” To understand what this may mean for contemporary secular law, we begin by identifying some of the focal points, the foundational principles, of the Mosaic law. While others may characterize (and have characterized) the principles that underlie the Mosaic law differently, we focus here on three general themes that run through these books, and provide the foundation for the law.vi First is the nature of God himself. God is the creator of all things and is completely holy. Although God stands apart from the creation, he is not aloof from it. He has chosen a people for himself, and is in relationship with them. “I the Lord am holy and have separated you from the peoples, that you should be mine,” he says in Leviticus.vii Elsewhere in the Old Testament, Israel is frequently described as God’s bride,viii or as God’s child. The books that comprise the Mosaic law admonish Israel to imitate God, as when Israel is instructed to care for the sojourner. “Love the sojourner, Israel is told, “for you were sojourners in the land of Egypt” until God rescued you.ix Second is the unique nature of the community for whom the Mosaic law was given. The Israel of the Mosaic law is God’s chosen people, a nation set apart for himself. They are called to be holy both in their purity and in their separateness from other nations. Their distinctiveness is reflected in God’s command that they eschew the practices of the nations around them and that they eat only those foods that are designated as “clean.” God promises to reward Israel’s obedience by showering them with blessings. If Israel disobeys, on the other hand, they will be cursed. The community is responsible for the behavior of its members, and will itself be punished for tolerating lawlessness in its midst. In Leviticus, for instance, God threatens, as the culmination of a stream of horrific punishments for disobedience, to “scatter you among the nations,” and “unsheathe the sword after you,” so that “your land shall be a desolation, and your cities shall be a waste.”x The third theme is the land. The Mosaic law is framed in anticipation of Israel’s entrance into the promised land, and the land is a central concern of the legal framework. Of particular importance are the facts that Israel did not obtain the land through its own prowess or strength; and that its ownership of the land is not absolute. Borrowing from modern property concepts, we 4 might call Israel’s interest in the land an “obedience-estate.” Much as a person who holds a life estate in property owns the property for as long as she lives, after which it reverts to the original owner, Israel was entitled to live peacefully on the land and to enjoy its fruits for as long as she remained faithful to God. But disobedience would terminate Israel’s estate. The double nature of Israel’s ownership—the land was a gift from God, but God remained its ultimate owner—is woven deeply into the Mosaic law. It underscores Israel’s dependence on God, and underwrites the law’s concerns that the people imitate the holiness of their holy God and that they show the kind of care for sojourners and the vulnerable in their midst that God showed for Israel when they were oppressed in Israel.xi We subsume in these three themes several major concerns of the Mosaic law that could easily be treated as additional themes. We have not yet mentioned, for instance, the detailed instruction on the dimensions of the tabernacle, the sacrifices, and the responsibilities of the priests in overseeing the sacrifices. The tabernacle and sacrifices lie at the heart of Israel’s relationship with God, testifying to God’s holiness and defining the community that Israel was called to be. We will consider them in that context-- as the sinews that hold the community together and link it to God. The Mosaic Law: A Brief Overview With the larger themes as a backdrop, we turn now to the law itself. We will begin with a brief survey of the four books under consideration before analyzing the overall structure of the Mosaic law in more detail. Chapter 20 of Exodus opens with the majestic statement: “And God spoke all these words.” Starting with the Ten Commandments, later described as the “ten words,” the second half of Exodus is devoted almost entirely to legal regulation. Chapter 20 concludes with an admonition against making gold or silver idols. Chapter 21 begins with a series of regulations about the treatment of slaves, punishments or payments for injuries in a fight or for striking a slave, and restitutionary payments for injuries to someone else’s animals. In contemporary terms, the laws just mentioned might be characterized as civil regulation, a mixture of criminal 5 law and tort, and tort regulation respectively. The regulation continues (in chapter 22) with a series of tort laws involving damage to a neighbor’s property or animals (some of which sound like hypotheticals in contemporary tort scholarship, as with the responsibility of a person who starts a fire for consequent damage to “the stacked grain or the standing grain or the field.”xii). These are followed by more criminal laws (including the death penalty for a “sorceress” or anyone who “lies with an animal”), admonitions (to be enforced not by Israel but by God) not to mistreat sojourners, widows, or orphans; not to charge interest in loans to the poor, and not to neglect the obligation to offer their first fruits (whether it be children, animals or crops) to God. Chapter 23 instructs Israel to let the land lie fallow every seventh year, commands rest for all on the Sabbath, and calls for three annual feasts. Chapters 25-31of Exodus provides detailed instructions for the ark of the covenant and other elements of the tabernacle which was to be the focal point of Israel’s camp, their worship, and God’s presence during the years in the wilderness; as well as instructions for the construction of the tabernacle itself, for the priests’ garments, and for the consecration of the priests. While Moses is on Mount Sinai receiving these instructions, Aaron responds (in chapter 32) to the people’s insistence that they be given idols “who shall go before us” by making a golden calf for them to worship. Infuriated when he returns to an orgy of dancing before the gold calf, Moses destroys the two tablets on which God has engraved the Ten Commandments. Moses subsequently persuades God to lift the plague he has inflicted on Israel in punishment, and at God’s command makes two new tablets to replace the two he had destroyed (chapter 34). After the startling disobedience of the golden calf, which threatened Israel’s very relationship with God, Chapters 35-40 recount in tender detail the construction of the tabernacle, and the making of the elements of the tabernacle and the priestly garments. After this faithful fulfillment of God’s instructions, the glory of God fills the tabernacle at the conclusion of Exodus. Leviticus picks up where Exodus had left off, with the tabernacle newly constructed and filled with the glory of God. Chapters 1-7 outline the sacrifices that Israel is to offer to God, including burnt offerings, grain offerings, peace offerings, sin offerings, and guilt offerings. Moses’ brother Aaron and his sons are consecrated as priests to conduct the offerings (chapter 8), and God accepts Aaron’s inaugural offering (chapter 9). Once again, disobedience mars Israel’s response: Aaron’s sons Nadab and Abihu misuse their incense censors, and are consumed by fire 6 in punishment (chapter 10). Holiness, a central concern of the sacrificial system, is the dominant theme of the regulations that follow. Chapter 11 details the dietary laws that distinguish Israel from other nations, listing the “clean” animals that Israel is permitted to eat, and the “unclean” ones that are off limits. Chapter 12 prescribes a process of purification for a woman who has just given birth. Chapters 13 and 14 set forth the procedures for determining whether a person (or a house) has a skin disease (or mildew in the case of a house) and thus is unclean, and for purification if the skin disease recedes. Chapter 16 defines the discharges of menstrual blood and semen that make a person unclean, and the procedures for purification. Chapter 18 prohibits Israel from eating blood, or from sexual relations with close relatives. Chapter 19 opens with the instruction that “You shall be holy, for I the Lord your God am holy,” and outlines an eclectic series of obligations—to leave the edges of their fields unreaped, for the benefit of the poor or sojourner; not to lie or steal; not to do injustice in court; not to eat blood or sell a daughter as a prostitute; to honor the elderly; and to use just weights. Chapter 20 is primarily concerned with the punishments for violating these obligations—prescribing death for those who sacrifice a child or commit adultery with a neighbor’s wife, and instructing that those who turn to wizards or have sex with a sister be cut off from the people. Chapters 21-23 prescribe the holiness obligations of priests and establish the appointed feasts in the priestly calendar, starting with the weekly Sabbath and Passover. The case of a woman (whose mother was an Israelite and father an Egyptian) who blasphemed God is recounted in Chapter 24, along with God’s instruction to Moses that the blasphemer be stoned by the entire congregation. This is followed by the instruction that anyone who takes a human life must be put to death, and the “eye for an eye” principle of punishment known as lex talionis. The regulations that follow (in Chapter 25) are devoted to the release of those bound by debt and the restoration to its original owner. Every seventh year is to be a Sabbath year of rest for the land; the fiftieth year is to be the year of jubilee. The jubilee regulations instruct God’s people once again to rest the land; provide for redemption of any property that has been sold by an Israelite who becomes poor; call for support of a poor fellow Israelite; and invite redemption of an Israelite who has been sold into servitude. “And if he is not redeemed by these means,” the regulations conclude, “then he and his children with him shall be released in the jubilee. For it is 7 to me that the people of Israel are servants.”xiii Leviticus concludes with the promise of blessings for obedience and punishment for disobedience (Chapter 26), and detailed regulation of vows of gifts to the Lord (Chapter 27). In Numbers, which recounts Israel’s subsequent wanderings in the wilderness, the additions to the Mosaic law are more scattered. Among the notable additions are the establishment of a ritual that allows for the consecration of non-Levites (Num. 6) and an elaborate test to determine whether a jealous husband’s wife has committed adultery.xiv God also instructs Moses to appoint seventy elders to help bear the burden of overseeing the people. Another section prescribes sacrifices to atone for unintentional sins, and recounts Moses’ ruling that a man who gathered sticks in violation of the Sabbath must be stoned by the congregation.xv Numbers distinguishes between murder and unintentional killing, establishing six cities of refuge to provide safety unintentional manslayers from vengeance seeking family members. Murderers must be put to death, and they cannot be ransomed.xvi (In the view of some scholars, this prohibition of ransom for murder implies, by negative inference, that other punishments could be and were substituted for the death penalty with crimes other than murder). xvii Framed as Moses’ final sermon as he nears death and Israel prepares to enter the promised land, Deuteronomy retells the events of the three previous books, including God’s giving of the Ten Commandments. As in Leviticus, legal regulations run through much of the book (chapters 4-26), often elaborated or articulated differently than in the earlier books. Unlike with the emphasis on holiness in Leviticus, Deuteronomy does not explicitly announce a prevailing theme or themes. But its heart, even more than in Exodus, is the Ten Commandments. The extensive regulatory instructions that come after the Ten Commandments may in fact entail a working out of some of the implications of each of the commandments,xviii a fact true of all the case law (see above). Deuteronomy devotes particular attention to the mechanisms of administering justice. Moses instructs the people to appoint judges and officers in each town, which suggests that judging was largely local. If the case was particularly difficult, however, the local officials are instructed to take it to the Levitical priests and central judge. In addition, each of the kings that Israel will later insist on must read the law every day and keep it, so that “his heart may not be lifted up above his brothers.”xix 8 Chapters 20-25 set forth a long sequence of regulations, many of which are given in narrative form, apparently as case studies, and few of which are accompanied by explicit punishments. Chapter 20 excuses men who have built a new house, have recently planted a vineyard, are betrothed, or are fearful from battle. Many of the laws concern cleanness and uncleanness, marriage, sexual morality, and protection of the poor and needy from economic oppression. One intriguing regulation involves a mother bird found sitting on her eggs or young. The people are permitted to take the eggs or young for themselves, but must let the mother go.xx Moses concludes his address with an assurance of blessings if Israel obeys the laws, warnings of the curses for disobedience, a public reading of the law, his farewell song, and a final blessing on the tribes of Israel. A Few Attributes of the Mosaic Law For a contemporary lawyer, the centrality of the Ten Commandments is perhaps the most striking feature of these four books of the Mosaic law. Indeed, as explained above, all the case law is derivative from them. Literally given on a mountain, the commandments seem to rise above the rest of the regulatory landscape, providing the framework for God’s covenantal relationship with his people. It is tempting to compare the Ten Commandments to a constitution, and the remaining regulations to the laws that are enacted after a constitution is in place. The analogy must be used carefully. Old Testament ethics courses, particularly in theologically conservative seminaries, sometimes foreground the Ten Commandments so heavily that other dimensions of the Mosaic law disappear. But the Ten Commandments clearly are the touchstone for the regulations as a whole. Another striking, and similarly well-known, attribute of the Mosaic laws is their mixture of religious and civil regulations. In modern Western legal traditions, religion and civil obligations occupy separate domains, except in the few fraught areas where they overlap. The Mosaic laws govern both domains—regulating worship as well as criminal law, family law, and torts—although the particular regulations are generally kept separate. 9