The genre of the Mosaic law

Looks like a commenter over at Green Baggins is going to wimp out of a challenge he initiated. So I'll post my response over here:

steve hays said,
October 30, 2008 at 8:06 am

I agree with Michael L. that there’s a difference between the Mosaic law code and modern law codes. But I disagree with him on the nature of the difference. Douglas Stuart, in his magisterial commentary on Exodus, has delineated the real difference:

“What the chapter [Exod 20] contains—in particular, the Ten “words” (debarim)—is more like the content of a national constitution than merely the content of one section of codified law or another. If the American legal corpus is used as an analogy, it could be said that the ten ‘words’ of Exod 20 are somewhat like the Constitution of the United States (legally binding in a most basic, foundational way but more than a mere set of individual laws) and the laws that follow (cf. 21:1, ‘These are the laws you are two set before them’) somewhat analogous to the various sections of federal law dealing with all sorts of particular matters that have been enacted legislatively over time. The one group is absolutely ‘constitutional’ or ‘foundational;’ the other is specifically regulatory, following from the principles articulated in the more basic ‘constitution’,” Exodus (B&H 2006), 440-41.

“The biblical commandments occur in three levels of specificity. At the most comprehensive level are the ‘two great commandments’ of Deut 6:5 (‘Love the Lord your God with all your heart…’) and Lev 19:18b (‘love your neighbor as yourself’). The first of these commands requires in broad terms a loyal, covenantal obedience to God, who is put first above all other relationships. The second requires loving (loyal) treatment of other human beings,” ibid. 441.

“The first four of the Ten Commandments hang on the command to love God since they describe ways to show covenant loyalty directly to him. The final six hang on the command to love neighbor as self…Thus the first four ‘vertical’ commandments are balanced by the final six ‘horizontal commandments.’ Then, in order of hierarchy, follow all the others. The order is, then, the two, the ten, and the six hundred and one,” ibid. 442.

“Modern societies generally have opted for exhaustive law codes. That is, every action modern society wishes to regular or prohibit must be specifically mentioned in a separate law. Under the expectations of this exhaustive law system, state and/or federal law codes run to thousands of pages and address thousands of individual actions by way of a requirement or restriction or control or outright banning of those actions. By this approach, all actions are permitted that are not expressly forbidden or regulated. Thus it is not uncommon that criminals in modern Western societies evade prosecution because of a ‘technicality’ or a ‘loophole’ in the law—their undesirable actions are not *exactly* prohibited or regulated by a written law, so they cannot be convicted even though an objective observer may be convinced that what they did surely deserved punishment,” ibid. 442.

“Ancient laws did not work this way. They were paradigmatic, giving models of behaviors and models of prohibitions/punishments relative to those behaviors, but they made no attempt to be exhaustive. Ancient laws gave guiding principles, or samples, rather than complete descriptions of all things regulated. Ancient people were expected to be able to extrapolate from what the sampling of laws did say to the *general* behavior the laws in their totality pointed toward. Ancient judges were expected to extrapolate from the wording provided in the laws that did exist to *all other* circumstances and not to be foiled in their jurisprudence by any such concepts as ‘technicalities’ or ‘loopholes.’ When common sense told judges that a crime had been committed, they reasoned their way from whatever the most nearly applicable law specified to a decision as to how to administer proper justice in the case before them,” 442-43.

“The way paradigmatic law works: through a somewhat randomly presented admixture of rather specific examples of more general behaviors and very general regulations of broad categories of behavior, the reader/listener comes to understand that all sorts of situations not exactly specified (either because a law is to broad or so narrow) are also implicitly covered,” 444.

steve hays said,
October 30, 2008 at 10:55 am

Michael,

Since Stuart is writing for a popular commentary series, you wouldn’t expect him to give the kind of documentation he’d give in an article for a peer-reviewed journal. But why don’t you contact him?

steve hays said,
October 30, 2008 at 11:05 am

Michael,

You’ve told us what you don’t think was the function of the Mosaic Law. But, on your view, what was the function of the Mosaic Law? Specifically, what was the practical purpose of all those civil and criminal injunctions and penalties?

steve hays said,
October 31, 2008 at 11:04 am

Hi Michael,

Thanks for the reply. Unfortunately, I don’t see how your explanation is all that responsive to my original question: “on your view, what was the function of the Mosaic Law? Specifically, what was the practical purpose of all those civil and criminal injunctions and penalties?”

Let’s run through your examples and arguments:

“(1) as a monument to God’s rule (e.g., the Mount Ebal inscription, in Josh 8:32).”

How would inscribing some portion of the law be, in and of itself, a monument to God’s rule unless the Mosaic law code was, as a matter of fact, the rule of law in ancient Israel?

A legal inscription is not, all by itself, a substitute for the practical function of a law code. Rather, it presupposes the functionality of the law. You have a public inscription of the law so that people will know their legal rights and responsibilities.

If, on the other hand, you deny that the Mosaic law code was actually the rule of law in ancient Israel, then what’s the point of a public inscription?

“(2) for deposit in the sanctuary (e.g., the law-book kept with Aaron’s staff, etc., in the tabernacle; Deut 31:26).”

Same problem as (1). This action is not an alternative explanation for the practical function of the law. Rather, it presupposes the functionality of the law. Unless the Mosaic law code was actually implemented, there would be no particular value in preserving it for posterity.

“(3) for reading in worship assemblies (e.g., Deut 31:9-13; Exod 24:3-8; Josh 8:34; 2Kgs 23:1-3; Neh 8).”

Same problem as before: why bother reading the law aloud in public settings unless the life of the audience was actually regulated by this law code?

“(4) for use in education (e.g., 2Chr 17:7-9; Deut 17:18-20; Josh 1:8).”

Same problem as before: why educate the general public in the content of the law unless their lives were actually regulated by this law code?

“(5) religious reform…Josiah and Ezra-Nehemiah as prime examples of major religious reforms taking place using the Mosaic law-writings.”

What does that mean unless Josiah and Ezra-Nehemiah were now enforcing a hitherto neglected law code?

So, unless I’m missing your point, I fail to see how these 5 explanations supply an alternative interpretation regarding the practical purpose of the law. To the contrary, it seems to me that all 5 actually presume and confirm the common sense interpretation, according to which the Mosaic law code, including the case laws, were actually in use.

“We might say that (and this is a bit simplistic, but perhaps it gets at the point) the uses of the law-writings in ancient Israel were not that different from the uses which the church has learned from Jesus and the Apostle Paul (surprise, surprise!). The laws are divinely given paradigms of holiness that teach us (the people of God are its audience, not lawyers and judicial specialists) what it looks like, through use of practical, concrete examples, to love God and to love our neighbor. So we study (or should study!) the laws in worship, and in private and public education.”

I still don’t follow your intended contrast between a functional law code and your own position. So these inspired paradigms teach us how to love God and our fellow man.

Then what? What do we do with that teaching? Do we live by that teaching? Isn’t the function of NT household codes to govern the individual and corporate life of Christians, in church and society at large?

If we accept your analogy, how does that prove that the Mosaic law code wasn’t actually applied to real life cases? Wouldn’t it underscore the opposite interpretation?

“In regard to the latter, Jackson (whom I earlier referenced) has even gone so far as to suggest that the law-writings were used in Israel to help train the people to resolve their conflicts without going to court…”

Isn’t that a trite way of saying that laws have a deterrent value? The liable party has an incentive to settle out of court, since he would likely lose if his case comes before a judge? So how does this explanation evidence your apparent claim (unless I’ve misunderstood you) that OT judges didn’t use the OT case laws?

“The cases which went to court would be the ones for which there was no clear custom (known to a law-educated public) by which the parties could handle matters themselves. So, Jackson suggests that the courtroom is the one place where the law-book would not be in typical use (the exact opposite of modern legislation, which is not reading material at home but used in the courtroom)!”

i) I’m sorry, but isn’t that explanation pretty silly on the face of it? To begin with, isn’t the primary incentive for an out-of-court settlement the fear of legal repercussions if the case ever comes before a judge? The leverage for an out-of-court settlement is the implicit or explicit threat of ratcheting up a private dispute to the next level if the liable party refuses to settle out of court. So this explanation actually presupposes the very thing it denies.

ii) On a related note, if the parties are unable or unwilling to settle out of court, then judicial proceedings would be the only legal enforcement mechanism. It’s a necessary back up system.

iii) And the grounds for judicial action would be the law. The judiciary is established by law. The rules of evidence are established by law. The actionable offenses are established by law. And the penalties are established by law.

iv) If a plaintiff went to court, his only argument would be to accuse the defendant of breaking the law. And the judge would try the defendant for violation of the law. What law, if not the law of Moses?

So I don’t see how Jackson’s scenario avoids the functionality of the Mosaic law as the rule of law for ancient Israel. To the contrary, it seems to me that his scenario logically assumes the functionality of the Mosaic law every step of the way. Am I missing something?

“In fact, even the Deut 17:18-20 passage, where the king is called on to read from the law-book, gives that charge as part of a list of charges designed to humble the king and make him ‘like his brethren.’ He is not being charged to read the law-book as a kingly activity (i.e., as a ‘constitutional monarch’); rather, it is one of the charges which makes him ‘like his brethren.’ In other words, law-book reading was something done for the edification and instruction of the people; and, unlike in neighboring kingdoms, Israel’s king must be ‘like his brethren’ and he also reads and studies the law-writings (with Levite assistance, the passage implies) like the public.”

I don’t see how your conclusion follows from your example. Just the opposite: this is a paradigm case of constitutional monarchy. The Israelite king is to study the law, in part, because the law applies to him as well as to a private citizen. He is not above the law. Rather, he himself is subject to the law. In that respect, he’s on the same footing as every other member of the covenant community. His authority derives from the law and, by implication, he can be deposed in case he’s a covenant-breaker.

“Certainly, all this would mean that kings and judges are also educated in the righteousness of God through the paradigms collected by Moses, and this, we might expect, would have important authority in their judicial thinking. But to be educated by the law-book (as a law-collection/didactic text) is quite different from the modern notion of judges implementing pre-defined penalties for pre-defined categories of cases (as a law-code/legislative text).”

But the Mosaic paradigms are paradigms of predefined penalties for predefined offenses. If kings and judges are educated in the law, that’s the content of the law they studied. So how do you drive a wedge between the content of the law they studied and their legal duties?

“While such analogies and comparisons might all be helpful heuristics, we ultimately have to draw our conclusions from what Scripture itself portrays. And the Scriptures show us, on the one hand, that the law-writings were used to educate God’s people in loving him and loving one another; and, on the other hand, Scripture shows us judges and kings handling cases out of a love for God and his ways, but never through application of a ‘here’s what the regulations say’ method. Indeed, over and over in biblical court examples (like that of David and the Woman of Tekoa, and numerous others), we often find biblical judges coming to rulings that are at variance with the specific provisions described in the law-book (though, I would argue, always within ‘the general equity thereof’ — if I can use that phrase, anachronistically). But that kind of detail I’ll leave to those who want to do more reading on the subject…”

i) This claim is too vague to respond to. We’d have to work through a specific list of examples to evaluate your argument.

ii) Also, you seem to be assuming that if OT judges actually made use of Mosaic case laws, they would have no judicial discretion in how they applied the case laws to real life situations. I don’t know the basis of your assumption.

There is always an element of judicial discretion since a judge must analogize from a case law to a real life situation.

iii) Moreover, you also seem to be assuming that the penalty structure would be rigid (if OT judges were using Mosaic case laws). Once again, I don’t know the basis of your assumption. Depending on the offense, the sentence could be commuted.

Going back to your initial comment (#57):

“For one example, #51 above quoted Exod 21:12-14 and offered an elaborate system of thought to try to distill how to apply it. But look at the court example in 2Sam 14, where David hears a murder case (the case of the Woman of Tekoa) and does NOT apply the death penalty like we might assume he should based on Exod 21 (and Num 35:30-34; Lev 24:17; Deut 19:13; 21:9). Yet David is called ‘like the angel of the LORD’ in the judgment he renders. Actually, the case is one which is conjured up by Joab, so that it is a sham case in the end. But it is a carefully crafted case, cooked up by Joab, to deliberately put David in a hard spot, because the case sets a number of principles of justice in conflict: (1) Israelite inheritance laws (e.g., Num 27.8–11); (2) Israelite bloodguilt laws (already noted, above); (3) Israelite kinsman-redeemer laws (e.g., Num 35.27); and, (4) the right of widows to call down divine vengeance (e.g., Ex 22.22–24). But this is the way in which ancient Near Eastern courts understood law to function in the real world: cases are never simple and it would never be imagined that a written-prescription of legal formulas could ever dictate how a judge should rule in cases.”

How do you think that stands in contrast to either theonomy or general equity?

In real world situations, an OT judge might have to balance or counterbalance different legal obligations. Take mitigating circumstances into account. So what? How is that in tension with the idea that OT jurisprudence was guided by the Mosaic case laws? What, exactly, is your position opposed to? What’s your target?

“Jesus promoted a kingdom where the King is truly sovereign, and who rules according to righteousness idealized in the law-writings (but does not suppose that those law-writings were ever intended to be implemented in a mechanistic, legislative manner).”

You like to use the word “mechanistic,” as if the position you oppose is guilty of applying OT ethics or NT ethics “mechanistically.” What do you mean by that, exactly?

For example, what do you think we should do with Jesus’ statements about fornication, adultery, divorce, and remarriage? How should they function in the church or society at large? Should the church discipline adulterers, or would that be too “mechanistic”?

“But are the Mosaic law-writings really adequate to provide righteousness for a society by themselves? Paul argues that the law-writings were never designed to accomplish righteousness, they always pointed to and expected a King to accomplish what they idealized. In making those arguments, I believe that Paul is reflecting good, ANE (aka, ‘barbarian’) thought, and the way Moses himself would have understood the law-writings to function…”

i) This is simplistic. A basic function of law is not to make people good, but to deter evil.

ii) Paul himself has a list of moral prohibitions which Christians are supposed to abide by.

steve hays said,
November 4, 2008 at 11:41 am

Michael L. said,

“Try not to throw my arguments away too hastily, and certainly do not suppose that granting serious thought to my arguments in any way undermines the authority of the Mosaic law-writings.”

You’ve given us no sustained argument for your position. So there’s nothing to throw away, whether hastily or with all due deliberation. For the most part, all you’ve done in this reply is to repetitiously assert some programmatic claims about the true genre of the Mosaic law code. You keep assuming what you need to prove.

The only thing I can identify by way of argument are two very rudimentary arguments: one argument from analogy, along with a vague appeal to discrepancies between the Mosaic law and Ezra-Nehemiah. Let’s take your argument from analogy:

“By way of analogy: when Jesus came, he came as a king. He came as the promised Messiah whom the prophets announced would bring victory and justice to his people. But how would he do so? What kind of king was he and how does he function in that office? Sadly, period Judaism — influenced by the Greco-Roman examples of kingship set by Alexander and Caesar, and already adapted in Judaism by the Hasmoneans — anticipated a king who would save after the manner of those militant rulers. But Paul labored, with detailed exegesis from the OT law and prophets, to explain to his fellow Hebrews that the Scriptures called for a king who would conquer, not by shedding the blood of others, but by shedding his own blood. It was a different model of kingship, though every bit as much a true king and exactly what the OT texts actually described (though read through period presuppositions, many Jews missed it).”

This strikes me as simplistic. Doesn’t it amount to a half-truth?

The obvious response is to distinguish between the first advent of Christ and the second advent. In the first advent, he comes as a Savior—but in the second, he comes as a judge.

So political messianism is half right and half wrong. It’s wrong on the timing, but it’s correct insofar as the Messiah is, indeed, a warrior-king who will conquer his remaining foes by force. But this occurs on the Day of Judgment.

If you disagree with that explanation, why?

“I hope all that is some help.”

How would that be of any help? I asked you a number of questions to clarify the implications of your position. You duck my questions and simply reiterate what you said all along. That does nothing whatsoever to advance the argument.

Let’s take a concrete example at random. The Mosaic law has a provision for war brides. In your opinion, what is the purpose of that provision?

What would be the function of a provision for war brides unless that was addressing a real world situation, viz. Israel wins a battle, captures some eligible women. What’s to be done with them?

If you reject that common sense interpretation, then what is your alternative explanation for the existence of this provision?

“In the meantime, don’t dismiss my position too quickly, but keep trying to make sense of it as you study the biblical examples themselves…”

What Biblical examples? The only example you gave in your latest reply was a vague appeal to the alleged discrepancy between the Mosaic code and the jurisprudence of Ezra-Nehemiah. But you furnish no specifics.

What, exactly, are the discrepancies between the Mosaic law and Ezra/Nehemiah? And why do you think evangelical commentaries fail to adequately explain these (alleged) discrepancies?

I’m left to suspect that you play your cards close to your vest because your position entails a lenient view of personal social ethics, and you wont lay your cards on the table because, as soon as we see where your position leads to, we will pounce.

Maybe I’m mistaken about that. Can you prove me wrong? What’s the cash-value of your position? How would you apply your position to a church discipline, viz. divorce and remarriage?