LAW AND COVENANT IN ISRAEL
AND THE ANCIENT NEAR EAST
George E. Mendenhall
ANCIENT ORIENTAL AND BIBLICAL LAW
In this article we shall present a study of Israelite law in the light of recent developments in the study of ancient oriental law, especially of the great Mesopotamian cultures. By law we intend to mean the exercise of coercive power by the community or its agents. For every state is or tends to become a monopoly of force which denies to its members the exercise of private force for obtaining redress of wrong. Law rests upon commonly accepted opinion that certain acts are wrong and must be punished or otherwise compensated for; and, if someone has been injured, he has a right to appeal to the coercive power of the community to obtain redress. That common body of what might be called the sense of justice in a community we shall call "policy". What happens in a law court; however, is usually much more directly related to the technical corpus of specialized legal acts and traditions. These are "techniques" whereby the generally vague community concepts of justice are translated into action in the specific cases which come before judges.(1) The writer is convinced that only by drawing some such distinction between policy and technique can the lawcodes of the ancient world and especially the laws of the Bible be at all adequately understood.
Legal and Religious Obligation
Theology and jurisprudence have a great deal in common.(2) Both impose obligations upon the individual and the community; both are now faced with the problem of interpreting written documents as a basis for action, and both have to deal with questions of fact as well as judgments of value. The sanctions by which those statements of obligation are upheld differ. When the coercive force of the community is exercised against a member, the action is law regardless of the source of the policy which directs the action. It goes without saying that in the ancient world there is a very close relationship between religious and legal policy. The maintenance of justice and the protection of the community are the two functions of the king for which he has been chosen by the gods.(3) What that meant in practice is probably that the legal policies were determined by the king and therefore received divine sanction, though it is probably true that even the king could not proclaim as policy something which was contrary to the interests of the most influential body of citizens.(4) At any rate the conclusion would seem justified, that there was no independent religious tradition in the pagan nations of the ancient world which had enough vitality and support to become the basis for a condemnation of royal policy while the king was still alive.(5) Religious and legal obligations were not so closely identified in Israelite religion.
Religious Obligation is Sanctioned by the Deity Himself
This is to say that an act contrary to the will of the deity will be punished directly by the deity in ways which vary, of course, depending upon the concepts of divine action held by the community. Since the punitive acts of a god tend to be natural calamities such as plague, drought, and famine which strike the entire community, religious sanctions tend at least to reinforce, if not to produce, the concept of corporate responsibility which is a characteristic of the early stages of legal thought in the ancient world. Religious obligations tend then to become legal obligations, for the community will feel compelled to punish in order to protect itself from the divine wrath which does not single out the culprit alone for punishment.(6) As legal techniques grow more sophisticated, religious sanctions tend to be much less a source of legal policy. It is of course true that at any given period in a particular community it will be only theoretically possible to distinguish between religious and legal obligation. We believe, however, that it is possible to distinguish between the two so far as their origin is concerned. In order to do so it is necessary to examine ancient conceptions of covenant.
COVENANT AS THE FOUNDATION OF RELIGIOUS OBLIGATION
Israelite traditions regarded the covenant at Sinai as the event which brought into existence Israel as a distinct religious community. That view Israelite origins was rejected by Wellhausen, who regarded the community rather as the product of very gradual growth.(7) On the contrary, we now know that covenant relationships were the foundation of relations between originally separate groups, and the formation of a new legal community, as well as the undertaking of new legal responsibilities, took place most naturally by covenant.(8) The existence of a covenant-bound community of tribes as a religious federation can hardly be doubted on rational grounds so far as the period of the judges is concerned.(9) The major question is whether or not that federation of tribes had a precursor in the nomadic period before the entry into Canaan. The present writer believes that the federation of tribes can be understood and explained only on the assumption that it is a conscious continuation and re-adaptation of an earlier tradition which goes back to the time of Moses. The covenant at Sinai was the formal means by which the semi-nomadic clans, recently emerged from state slavery in Egypt, were bound together in a religious and political community. The text of that covenant is the Decalogue.(10) Since a covenant is essentially a promissory oath, it is only in this way that a social group could be made responsible to new obligations. Furthermore, it is only this way (excluding overwhelming coercive force) that a legal or political community could and did expand, to include other already existing social units. In the ancient world covenants were sanctioned usually by religious means; the breach of covenant was punished directly by the guarantor of the covenant who was a deity or group of deities. Therefore, the Decalogue was simply the stipulation of the obligations to the deity which the community accepted as binding. It is not as such law, for there are no provisions in the Decalogue itself for the action of the community against an offender. The Decalogue is, however, the source of community policy in law, and the latter immediately begins to carry out that policy for the simple reason that the community cannot risk bringing upon itself the wrath of the deity because of breach of covenant committed by a single member. The community cannot protect the member, and must dissociate itself from him. This must be done by action which is essentially law. To sum up, the stipulations of the covenant have to do with the future, while law has to do with a specific action which is in the past. The Decalogue describes the interests of the deity which are protected by the deity, but law protects the interests of the community by averting from itself the punitive on action of God. Finally, the Decalogue becomes community policy -- the definition of right and wrong to which the community is bound, and law consists primarily of those techniques of community action whereby those policies are served and protected.
Types of "Law"
Ever since the publication of a most important monograph on Israelite law by Albrecht Alt, it has become customary to distinguish two types of law in the Pentateuch: apodictic and casuistic law(11). The essential distinction between them is that of form. Apodictic law is best illustrated by the Decalogue itself with its categorical imperatives and prohibitions: "Thou shalt not . . . ." There are other forms as well to which the same term is applied. Among these is the curse form which occurs in a collection in Deuteronomy 27:15-26, and the participle form of Exodus 21:12-17 (e.g., "Whoever curses his father or his mother shall surely be put to death.") Alt concluded in his study that the apodictic law is very ancient in Israelite tradition, and maintained that it is unique in the ancient world. Since that study, the latter conclusion has been challenged(12) with good reason. However, the ancient oriental parallels thus far pointed out are not actually parallel in form. They are not in the second person (thou), but in the third. For the Decalogue form we must again turn to the covenants preserved in extra-biblical sources. To give only one example, the treaty between Mursilis, king of the Hittites, and Kupanta-KAL includes the following stipulation: "Thou shalt not desire any territory of the land of Hatti."(13) The similarity both in form and content to the tenth commandment of the Decalogue is obvious, and far more convincing than any of the parallels thus far pointed out. The stipulations of the Hittite covenants are precisely a mixture of case law and apodictic law, very similar to the mixture found in the so-called "Covenant Code" of Exodus 21-23.
Why is it, then, that the Decalogue consists only of apodictic law, and those mostly prohibitions? If the present hypothesis is correct, the answer to this question is to be found in the social and political conditions which surrounded the establishment of the covenant itself. It is universally admitted that the groups involved were still nomads or semi-nomads with a tradition of independence. Furthermore, they had just emerged, according to the traditions, from state-slavery in Egypt. Under the circumstances, there must have been a fierce rejection of any infringement of their autonomy.(14) For any set of stipulations to be acceptable, they would necessarily have had to be of such a sort that they would correspond to the actual needs of a new community and guarantee to them a maximum of self-determination. It has been pointed out that prohibitions only are universal, since they define only the areas which are not permitted, leaving all other realms of action free. A positive command, on the other hand, immediately excludes all other alternatives. The Decalogue imposes only the obligation to observe the Sabbath and to honor parents.(15) It has consequently been regarded as a classical statement of "natural law" those obligations which have often been thought to be universally accepted by all peoples. Regardless of the accuracy of this belief, the fact that it could arise is an indication of the freedom which it guaranteed to the fugitives from Egypt. The covenant relationship itself may very well be regarded as a guarantee of freedom from every other political suzerainty.(16) As a covenant form, the Decalogue defined the interests of Yahweh which the community bound itself to protect. Since the covenant was upheld and protected by Yahweh Himself, the community had to protect itself from divine punishment for any breach of covenant committed by a member of the community. The early narratives, to be sure, tell of the punishment of individuals by Yahweh,(17) but they can hardly be used for the description of the development of law.
The case law probably grew out of two sources, one literary (or oral) and one judicial. It is universally admitted by modem scholars that there must be some direct or indirect dependence of Israelite case law upon earlier codifications of law in the ancient world. The case law is a form which can now be traced back to the end of the third millennium B.C. This form introduces a specific case, "If a man . . . ," in which the offense is specified. Then in the main clause the disposition of the case is given: "(then) he shall . . . ." Frequently there will be intermediate clauses defining more precisely a particular offense or its circumstances. We now have seven different codes or fragments from various nations of the ancient world, three of which now antedate the famous code of Hammurabi.(18)
In spite of intensive study during the past fifty years, there are very many unanswered problems concerning the nature and purpose of these codes. In the past they had been regarded naturally as "legislation" established as law by the king who was responsible for the codification.(19) The codification of law in various European countries during the nineteenth century was naturally the conscious or unconscious background for the study of the codes. Recently it has been necessary to give up this position. Landsberger has, in the opinion of the writer, demonstrated that not only are the codes not law in the modern sense of the term, but also that the concept of a written binding lawcode was completely lacking in old Mesopotamian law (see note 12). It seems clear that the judges of ancient times had neither the custom nor the techniques for arriving at a decision by means of interpreting and applying an authoritative written lawcode. We shall assume rather than attempt to prove here that this was the case also in Israel, at least before the Exile. The probability of the situation would seem to be very much in favor of this assumption. If it is true, the historical and theological implications are very far-reaching, and the attempt will be made here to work out some of the consequences.
The problem which arises, if the codes are not to be regarded as legislation, is that of the purpose which underlies the promulgation of the code. It would seem likely that no one answer can be given to this question. Koschaker suggested long ago(20) that the Assyrian code is essentially a private work of some jurist rather than a public promulgation. Other codes are definitely issued under the authority of a king. The latter probably had some purpose other than simply propaganda calculated to enhance his reputation for justice, though this possibility cannot be entirely ruled out. The writer prefers to seek some other solution. In recent times, codification of law has frequently been a sequel to a far reaching change in the structure or extent of the political unit.(21) As a result of the changes in government or society, some common standard of legal action is felt necessary, either to stabilize law or to incorporate changes which have actually taken place and give them legal status, particularly after a revolution. Whether or not this is an adequate explanation of ancient codes, it is true that at least three, and perhaps more, do come from such periods. The Ur-Nammu code comes from the founder of a new state -- the Third Dynasty of Ur. Hammurabi's code comes from a period which saw a tremendous expansion of the Babylonian Empire. The Hittite code comes from the transition period between the Old and New Empires.(22) The Assyrian code also cannot be much later than the achieving of independence from the Mitanni and Babylonian states.(23) Of the other codes too little is known to say for certain whether changes of political status, dynasty, or empire preceded them.
The absence of a binding lawcode does not at all mean that legal decisions were based only on the caprice of the judge. For centuries, and perhaps for millennia before our first lawcode, courts had been rendering judgments in various city states of the ancient world. Since the basic political unit was the city state,(24) there must have existed a great number of more or less independent legal traditions. Those traditions consisted perhaps, not so much of collected laws (though this took place before 2000 B.C. as we have seen), as of judicial precedents -- the knowledge of what judges did in specific cases, and of what they did habitually in well known recurring types of case. As one modem school of jurisprudence puts it, law consisted of what courts did, not what they said.(25) In a land where communication between various cities took place continuously and at a lively rate from very early times, such as Mesopotamia,(26) what might be called cross-fertilization of legal traditions no doubt was continuously taking place. Whenever there was felt a necessity for "codification" of law, the form which we call case law was known and used, but there is very little reason to think that the legal tradition of one city was ever identical with that of another, except where there was a long continuing political unity under a central government. The writer believes that the codification of law had as its main function the description of the legal tradition regarded as the standard by the promulgator. The description of law would have been useful and necessary for two reasons. In the first place, the conditions under which at least some of the codes arose imply a change or increase in the administrators of government and law. Many people were probably entering government service who had little experience in law or in the legal traditions which they were to represent.(27) The description of royal law would have been useful as reference to guide them in cases where their own legal experience was inadequate.
In the second place, it was not only the administrators who were involved in law. So long as lawsuits involved only the citizens of the same village or city, there would be no problem. Trade and travel meant, however, legal problems arising between members of different legal communities. Though one or the other legal tradition may have had jurisdiction, there must have been cases which came before the officers and judges of the king, in which the legal tradition of the court was the basis of decision. At any rate, a knowledge of the law of the central government was useful to anyone who had contacts with people in different cities. It is not at all likely that the Code of Hammurabi was intended to displace all other legal traditions within the Empire. At least it is quite certain that it did not do so; it probably did help and may have been intended in part to bring about a unification of legal tradition for the lands under the king. Whatever the purpose of the code, it cannot have been positive law binding all judges in their decisions, but was simply description of a legal tradition resting, it is believed, largely upon earlier collections of laws.
All these problems are even more difficult when we come to the earliest collections of Israelite law and especially the Covenant Code (Exod. 21-23). There is no agreement as to the latter's date among scholars, and no external objective evidence from which a compelling conclusion can be derived. It is agreed that the Covenant Code comes before the Israelite prophets of the eighth century; but, beyond that, the dating of the code will depend upon the views held by the scholar concerning the development of Israelite culture.(28) It is not possible here to discuss in detail the specific problems involved. The resort to hypothesis is absolutely necessary because of the fact that we do not have the tens of thousands of actual legal documents for Israelite law which are the major source for our knowledge of Babylonian and Assyrian law. As pointed out above, the lawcodes were of no great importance in the actual court procedures.(29) If, as we believe, the same was true in Israel, the lack of references to the codified law in the prophets and historical works proves nothing at all concerning the existence of a lawcode.
Law begins with the establishment of a community. The legal community in Israel before the monarchy was not a nation, but a much smaller social unit, the clan, the village, or at most the tribe. The regular legal procedures which existed before the monarchy were in charge of the elders and tribal officials in each region or social unit who carried out judgment at the city gate. It is precisely this situation which is presupposed in the Covenant Code.(30) It is on this level of community life that there arose not one, but a variety of legal traditions. The one factor which held the tribes together at all was the religious bond which imposed upon them common religious obligations, not a common political law enforced by central authority. In the very beginnings of the religious community, those obligations were stipulated in the Decalogue (it is admitted by all that the present form includes later additions). With the rapid expansion of the covenant community following the initial stages of the conquest, a great amount of "borrowing" of legal techniques took place simply because those who entered the community brought with them their earlier customs, traditions, and beliefs. Those traditions may have included historical narratives or epics which are now incorporated into the patriarchal narratives of Genesis.(31) Their customs and traditions must also have included legal materials: customary procedures, norms and techniques for settling by peaceful means conflicts between members of the village or tribe. Even the Patriarchal stories include references to legal customs which are clarified by legal documents from Mesopotamia.(32) In addition, somewhere there existed knowledge of a literary legal form which underlies the Covenant Code.
All of this legal material is usually attributed to the Canaanites in flagrant contradiction of everything which is known. We have not the slightest hint of the normal use of this sort of legal tradition among the Canaanites, though they knew of it. The legal documents from Ugarit in northern Syria show that Babylonian legal forms were there used, probably because the people must have been in almost continuous commercial relationship with Babylonians. Their own law, however, was of a far different sort as illustrated by other documents.(33) Canaanites were emphatically not the ones from whom the biblical traditions were derived.
It is well known that Canaanites were not the only population of Palestine at the time of the Israelite Conquest. Palestine had been invaded or infiltrated by many different groups in the thousand years preceding the coming of Israel. Among them were the Israelite Patriarchs, who were in all likelihood only a small and insignificant group among many others who came down from the North and East. Unlike the Amorites of Mesopotamia, they did not immediately become assimilated to the urban culture of the Canaanites, but retained their ancestral ways which had been formed while they were yet in contact with the cultures of Mesopotamia. It is to some such group that the form of the Covenant Code is to be attributed.
The Laws of the Covenant Code
It is hard to conceive of a lawcode which could be more at variance from what we know of Canaanite culture, than the Covenant Code. The Canaanite cities were predominantly commercial, rigidly stratified in social structure, and at least have the reputation for possessing a very low standard of morality, from which charge we could defend them only by assuming that they did not take their religion seriously. The Covenant Code shows no social stratification, for the slaves mentioned are not members of the community, with the single exception of the daughter who is sold as an "amah" or slave-wife. Since she is strongly protected by the law, the essence of the matter is only the fact that she does not become a legal wife in the usual sense of the term.
The laws of the Covenant Code reflect the customs, morality, and religious obligations of the Israelite community (or perhaps, some specific Israelite community of the North) before the monarchy. It is a description of the legal and religious policies and techniques of society which was "codified" and preserved at a time when changes taking place made that preservation desirable. Since it exhibits just that mixture of case law and apodictic law (technique and policy respectively) which we find in covenants from the Hittite sources, and in Mesopotamian codes as well, any study which assumes that it is a later artificial composite from originally independent literary sources may be assigned rather to rational ingenuity than to historical fact,
The changes in society which might have given rise to codification took place, of course, at the settlement of Israel in Canaan, but this can hardly have been the occasion, for the law which it was intended to preserve is a law of a sedentary people, not of nomads.(34) The next major change was the establishment of the monarchy itself, and this the writer believes to have been the event which brought about the codification.
The kingship of Israel was intended to be a means for the preservation of Israelite religion and culture, not to preside over its dissolution. Israelite religion and law already had a tradition going back for two centuries, during which time the pressures toward centralization of power had fluctuated but finally had become too great any longer to be resisted. The lateness of kingship in Israel is not due to the primitive nature of Israelite culture, but the opposite -- it had succeeded well enough during those years to make any alternative seem foolish.(35) Only after the Philistine threat made the very existence of Israel problematical did the kingship seem desirable. The usual custom of kingship was best known no doubt from its worst examples, and in the hope of avoiding the same fate the old customary law and morality of some group in the Federation was fixed as the norm. I Samuel 10:25 preserves a tradition to this effect, which fits in beautifully with the present theory of the nature and function of lawcodes. It served formal notice upon the king that the people would consent to be ruled by men only if they were to be ruled by their own law -- a principle which is illustrated by event after event throughout the history of the kingship.(36) The repeated prophetic condemnation of the king is not then simply a foolhardy venture of a malcontent, but rather the verdict of a Supreme Court (or rather of His representative) for violation of the Constitution.
Nevertheless, the Covenant Code was not actually the law of the kingship. Though many aspects of this legal tradition probably did survive, it belonged to the simple life of the past, and could not meet the demands of a very rapidly changing society after the reign of Saul. The old ways survived as a local legal and religious tradition, but the legal and moral life of the past was always more important to the tradition than the description preserved in the Covenant Code. Throughout the period of the monarchy, the old and the new were in constant conflict or tension, especially in the Northern Kingdom where conflicts broke out repeatedly.
To leave for a moment the later development of law, let us go back to the traditions of the old Federation to look at the relation between religion and law. We have proposed that the Decalogue is the statement of religious obligation which the law protected. How is that illustrated in the Covenant Code which seems to be entirely secular? In the first place, the secular nature of the Covenant Code is entirely to be expected, for there is no reason to think that religious personnel as such played any important part in judicial procedures other than administering oaths and settling cases by divine oracle.(37) Furthermore, there is certainly little justification for the idea that early Israelite religion consisted primarily of sacrifice or other cultic acts.
The fact is that nearly all the stipulations of the Decalogue are here protected. Omitted are the false use of the name of Yahweh and the prohibition of coveting. The others are much more concrete than the Decalogue, but still primarily in apodictic form.(38) In many, though the form is apodictic, there is provision for punishment, and this indicates that these laws have become legal policy with legal sanctions. As we have seen, the existence of such a rule in a lawcode is no guarantee that it was invariably carried out. Wherever a stipulation of the Decalogue is treated, the penalty with two exceptions is death. Firstly, theft has already been reduced to the status of civil offense, in contrast to the Code of Hammurabi which still demanded the death penalty for theft. (The death penalty is demanded in the Covenant Code only for the theft of persons, Exod. 21:16.) Secondly, the case law has introduced a distinction between accidental and premeditated murder, Exod. 21:12-14, but murder remains a crime, not a civil offense. Compensation is introduced only in a case where the owner of an ox is guilty of negligence (21:30), but is not otherwise provided for.
We conclude that the morality and policy described in the Decalogue is certainly familiar and lies at the basis of the Covenant Code, but there is no slavish copying of the words of the Decalogue. The legal acts of village elders do not seem to have dealt in great detail with crimes -- and it is true of ancient law in general that criminal law is almost everywhere very inadequately represented in legal documents. Much more important in the life of the law were those disputes between citizens concerning property and damages.
The covenant between Yahweh and people was a covenant with each family, if not with each individual. Since protection was an important concern of all covenants, this meant that each Israelite family was thus placed under the direct protection of God, and could be attacked only at the risk of incurring the enmity of God.(39) This placed on the law great responsibilities for the protection of each member of the community regardless of his social or economic status, including the protection of the thief (Exod. 22:3). This I would regard as the source of the perpetual concern for justice which is so characteristic above an in Israelite law. Even more important is the fact that justice is presented not so much as a right, but as a responsibility which attributed rights even to the foreigner and non-citizen. This concern for the protection of all living under the jurisdiction of the village court may have been responsible for the reduction of the Decalogue's stipulation concerning theft from the status of a crime entailing the death penalty to that of a civil offense demanding restitution with additional penalty (Exod. 22:1-2). Israelite society evidently did not agree that execution of a thief was in accordance with justice, and only theft of persons remained punishable by death.
The law of an "eye for an eye, and a tooth for a tooth" was also originally a measure of protection. It contrasted originally to the Song of Lamech (Gen. 4:23-24), and is simply the classical legal policy that legal responsibility is limited to the extent of injury done. The loss of an eye or a tooth does not grant the right to demand or to carry out the execution of the offender. It is impossible to say whether or not the legal principle was carried out literally; it would seem most likely that this depended upon the feelings and attitudes of the person who was granted redress by the court. Since the person who won a case was usually expected to execute the verdict himself, he was probably in a position to choose compensation or "vengeance." Since only one law in the entire Pentateuch provides maiming as a punishment (Deut.. 25:12, specifically prohibiting compensation: "thine eye shall not pity"), such action would likely have been unusual, and public opinion probably operated to prevent it. It is only in the light of this context that the teaching of the New Testament can be understood. What it intends is not the prohibition of private "vengeance," but any recourse to law for redress of wrong (Matt. 5:38-42. Cf. I Cor. 6:1-7).
It is this "eye for an eye" passage which particularly strikes one as being a statement of policy rather than a binding law. In view of the position of lawcodes in general in the ancient world, we conclude that the Covenant Code is actually a description of legal policy -- much more specific than the original foundation of the Decalogue, but showing us the concepts of legal, religious, and moral obligation which were regarded as those norms most in harmony with the nature of the religious community before the time of the monarchy, from whose life and action they came.
Law of the Monarchy
From the very beginnings of kingship the rights and responsibilities of the king came into conflict with the old customs. Saul was rejected by Samuel because he attempted to make himself head of the religious as well as of the political community, which would have implied that it was he, not the covenant community, who should determine legal policy.(40)
In nearly all these conflicts the king won out. As in other countries he probably became the court of appeals and supreme court, so that the tribunals of the village elders could be overruled. Especially when the concerns of the king came into conflict with religious principles, the latter could not prove sufficient urgency and necessity to win out. For example, the prohibition of covenants with foreign nations conflicted with the obvious desirability of establishing peaceful and profitable alliances with Tyre, Egypt and other states. The old religious obligations had a far different situation in life and had successfully carried out the task of welding a heterogeneous group of clans into a self-conscious nation. There seemed no longer to be any need for strict adherence to the old religious taboos.
In civil law as well great changes took place. Especially under Solomon the break with the past was radical. David attempted to preserve as much of the old as possible, though even he on occasion nullified the old legal custom for the sake of equity. When the woman of Tekoa appealed to him for protection of her son who was guilty of fratricide, David granted her plea, but only after she specifically took upon herself and her house the curse, the divine punishment, of a murderer and anyone who protected him (II Sam. 14). Likewise, David protected Joab during his own lifetime, willing himself to incur the risk involved for the sake of the personal relationship; but in order to protect the dynasty he commanded Solomon to carry out the demand of the religious law upon Joab (I Kings 2:5ff.). It is entirely likely and indeed probable that concepts of compensation came into law as a substitute for the older demand of the death penalty for breach of covenant. From law the same conception came into religion, and the popular mind no doubt considered sacrifice as an adequate compensation for breach of religious obligation. Certainly from this point of view the prophetic condemnation of sacrifices makes sense. It is necessary to point out, however, that the sacrificial law nowhere condones this idea, and the prophets are equally insistent that the priests themselves do not know the law (Hos. 4:6; Jer. 2:8; Lev. 6:4-6).
The messages of the prophets are essentially indictments of Israel for breach of covenant. They preserved some memory of the old traditions, but were not so naive as to think that the literal demands of the old law would be adequate in their own times. There is no condemnation of the stratification of society as such, rather a condemnation of the injustice and extortion which was done by the powerful. To take a specific example, the old law knew as security for a loan only the pledge (Exod. 22:26). In a simple economy, loans were evidently of an amount which would usually be adequately secured by giving to the creditor some property to hold until the loan was repaid. In case of default, the debtor's property simply reverted to the creditor. No other form of security is presupposed in the Covenant Code, and it is specifically forbidden that an Israelite be a "creditor" to one of his fellows. Already in the reign of Saul the situation had changed, Those who gathered about David as outlaws included those who had "creditors" (I Sam. 22:2), and who therefore had to flee. Under the old pledge system of security there would be no possible occasion for flight from the community in case of default. A totally different legal doctrine had come into practice whereby the person of the debtor was security for a loan. Upon default the creditor could seize him (or his family) as a slave, possibly without any legal action at all. The only alternative to slavery would have been flight. This doctrine is identical to that of Babylonian law, and no doubt of the Canaanites as well. It is in the law of the monarchy that Canaanite influence is doubtless to be posited, but it is a legal tradition in total contradiction to the customs and morality of early Israel. Amos protested violently against the way the legal doctrine was practiced, as did most of the prophets (Am. 2:6; Hos. 12:8-9; Mic. 2:1-2). The later lawcodes illustrate beautifully the way in which the early traditions, and the needs of business were brought into harmony. The older pledge system was simply inadequate for a commercial economy; and if the person of the debtor was to be protected, so also must the rights of the creditor to some security for his loan to be guaranteed. Therefore, Deuteronomy and the Holiness Code (Lv. 17-26) accept the doctrine of bodily liability, but place restrictions upon the powers of the creditor over the defaulting debtor. In the Holiness Code he is not to be treated as a slave, nor given the legal status of a slave, but rather to be as a hired laborer.(41)
It is only here and there that we get a glimpse of the law of the monarchy. Since we have no legal documents, the new legal customs must be inferred from narratives such as the story of Jeremiah's purchase of land (Jer. 32). Here he receives a deed in duplicate, similar to certain practices of Babylonian law. The whole transition from public, oral or symbolic legal transactions of the earlier period, to the written specialized commercial procedures of the later time can only be surmised from the few hints we have. Of the functions of the king and royal judges which certainly existed we hear next to nothing.(42) That whole system and tradition of law was too much in conflict with the religious tradition to be preserved, and we hear of it only through incidental references and polemic which condemned its policies.(43)
The Reform of the Law
There were, according to biblical traditions, repeated attempts to reform the law.(44) Those reforms were more than purification of ritual, including also no doubt attempts to return to the older legal customs of early Israel, or perhaps rather to reestablish the policies which underlay them. Under Assyrian domination it was no doubt difficult to do so, though again we have no details. Not until the collapse of Assyria in the time of Josiah was thorough reform possible. The book of Deuteronomy has universally been regarded as the lawcode which formed the basis of the reform. Rather than being a "pious forgery" there is now every reason to believe that it does represent a continuity of the old traditions. Whether the continuity is purely one of literary form we do not know, though the writer doubts this position very much. The laws of Deuteronomy probably represent rather a combination of two factors, first the literary tradition of codification, and second the continuity of legal practice in some community which had escaped the changes in law which came in with the monarchy. It was the large cities, the capital and the trading centers which took over the legal techniques and doctrines of commercial law. The smaller villages probably continued the older practices more or less unhindered by the royal officials so long as they paid their taxes and maintained order. It is no accident that several of the prophets came from small villages.
It was toward the end of the history of the state that attempt was made to recapture the letter and the spirit of the ancestral traditions. From Jeremiah on, religious ideas characteristic of the earliest period reemerge with renewed Vigor.(45) By-passing some two centuries of historical development, the prophets led the way to the recovery of Israel's own unique religious heritage. It was this rediscovery which grounded their confidence in the restoration by Yahweh after the Exile. Though the people must be punished in accordance with the prophetic word for several centuries of breach of covenant, yet the covenant was the foundation for their continued existence, and the ground for the reconstruction of a just law after the Exile.
History repeated itself during the period which followed. It is always difficult to make theory and practice accord with one another, and legal procedures are inevitably surrounded with decisions which compromise one ideal or another.(46) The apodictic law stating man's responsibility to God and the actual decisions of judges are not commensurable, but the legal procedures of a community which is a religious society must declare that they are. The New Testament maintained again that the actual customary law, even based as it was on Torah, was not actually identifiable with the will of God. Christianity could maintain this position consistently only by secularizing law, assigning coercive force only to the Roman government, and rejecting legal techniques as a part of religion.(47) Consequently, the entire tradition of case law, both biblical and oral (Halakah), was rejected, and emphasis placed on the policy stipulated in apodictic law by extending it to infinity (Luke 17:7-10). That violation of the law was to be punished was not doubted, but the punishment was not delegated to the religious community; it was deferred to the final judgment (Matt. 18:15-17). The community did not need to protect itself from the corporate responsibility to law because that had already been obviated by the Atonement. If any punishment of violators was to be done, it was God Himself who acted (Acts 5).
Thus the end of biblical history sees the re-establishment of the beginning, in which the community is formed by covenant, in which the obedience to the covenant is upheld by religious sanctions alone, and in which the exercise of legal coercive techniques is extremely rudimentary if at all existent. Whether or not Christianity was and is true to its own principles in developing such techniques is perhaps the perennial and unanswerable question in the religious history of mankind, to which only the Deus Vindex (God the Vindicator) will give a final answer.