God, Justice and Society – an extended review

GJSBy David Instone Brewer

Review of Jonathan Burnside, God, Justice, and Society: Aspects of Law and Legality in the Bible (OUP 2010)

This brick-sized book of 540 closely argued pages seeks to discover links between modern western law and the legislation of the Old Testament. It succeeds in comparing these ancient and modern legal systems and shows many similarities, though it doesn’t often demonstrate that one is built on the other.

After some introductory chapters on the nature of law in the Old Testament and the Ancient Near East, the book investigates various areas of law: the judiciary, environment, land and inheritance, social welfare, homicide, theft, marriage & rape, and other sexual offences. It ends with a couple of chapters on the New Testament on the divorce teaching and the trial of Jesus. Each topic concentrate on the Biblical text in relation to its historical and cultural background, and then presents a comparison with modern legal principles.

The work is surprisingly accessible considering its technical nature. Although he is familiar with Hebrew and the jargon of ancient and modern law, he avoids unnecessary use of it and always gives definitions where needed. An alert reader without knowledge of the subject should be able to follow this and benefit from it. It can be regarded as a popular presentation of the views of Bernard Jackson, on whom he relies heavily and rarely disagrees with, with additional material on modern-day law.

His aim isn’t apologetic, so he rarely seeks to explain problems in the Old Testament law or show how it was better than laws of surrounding nations. He seeks to accurately portray the law as it was, in the context of that time.

The wide-ranging nature of this work is surprisingly detailed, covering each subject in depth. For example, when looking at the land laws it refers to the “famous” ancient Egyptian case of Mose who sued for his family land in the time of Ramasees II (p.209) – a fascinating case I didn’t know of. As well as summarising the consensus and sometimes the opinions of other relevant scholars, he is not shy to offer his own theories, such as his explanation of the strange words “man is the tree of the field” (Deut.20.19) – he says the command that an army may cut down all trees except fruit trees mirrors the command that they may kill the men but not children and women (p.173-5) – which I find unconvincing, though I don’t have a better explanation.

The Introduction and first chapter presents a very useful comparison of Mosaic law and Ancient Near Eastern law codes. He doesn’t fall into the trap of just showing their similarities, though he does this sufficiently to show that the other ancient legal systems can help to explain aspects of the Biblical law. He points out that the Mosaic law was different to all other laws of the time in that it was presented as a treaty (ie an agreement between God and the nation), it regards God as the author, and it records many laws in the second person (“you shall…”) which implies individual responsibility.

He refers to a “narrative” interpretation of law – borrowing Bernard Jackson’s term which can be misleading. This term means both that stories can become the basis of law, but also that, as Burnside says, laws should not be interpreted ‘literally’. What he means by this is that specific laws are examples which can then be applied to similar situations. He illustrates this with the “eye for eye” command, saying that if a one-eyed man was being punished in this way, a literal interpretation would be inappropriate because the situation which is envisioned is one where someone’s sight is impaired, not removed completely. Laws in the OT are therefore stated as the start of negotiations rather than as specific punishments.

On the concept of ‘covenant’ in chapter 2 he points out that the Old Testament envisions a single covenant with God – that of Abraham – which encompasses preceding promises to Adam and Noah and continues to be central to Judaism up to the time of Nehemiah (Neh.9.8). He regards the New Covenant as a continuation in a different kind of presentation – an internalisation of the covenant rather than a replacement.

His attempt in chapter 3 to find Natural Law in the Old Testament is largely a failure. He easily demonstrates the basis of Natural Law in Pauline and church theology, but then tries to find the seeds of it in the creation narratives and other pre-Moses stories which imply the presupposition of a law. For example he says that the Sodom narrative assumes punishment is warranted because they have offended the general ancient Near Eastern laws of hospitality, in contrast to Abraham who showed perfect hospitality for the same guests (p.73-74). This suggests that the Sodom was punished for the same lame reason that Baucis and Philemon’s neighbours were punished by the gods who were snubbed in the story retold by Ovid; whereas the Genesis telling of this story shows that God had far more justification for this extreme judgement. In post-Moses stories he says that Amos condemns the nations on the basis of internationally recognised laws – and then casts doubt on this himself (p.80). Even in the New Testament he looks for the Noahide laws in the Jerusalem Council of Acts 15 (p.95-97) though admits that these originate no earlier than Jubilees and that the three unbreakable commands of rabbinic law form a more plausible basis.

On the basis of his data we have to conclude that Paul refers to Aristotle’s concept of Natural Law, but there is nothing really like it in the Old Testament and that Natural Law is not properly developed in Christianity till after the New Testament.

Chapter 4 on the judiciary is a topic which I did not expect and which has a very pertinent message for today. He points out that justice in the Old Testament world was many-layered, with a sophisticated hierarchy of judges, from parents, to local elders, right up to the king, and when that went wrong the prophets stepped in. The final call for justice, when everything else went wrong, was in prayer to God – but he doesn’t mention that this was always true, as we see in the opening of the Gilgamesh epic. He points out the importance of local justice in the city gate, and the fact that justice and punishment were visible whenever possible. He contrasts this with the modern world where court cases and prison are out of sight to most people.

The subject of the environment in chapter 5 appears to have been inserted because of the importance of subject in the modern world rather than coming from the agenda of the Old Testament itself, which has little to say on the subject. He rightly points to the command to “rule” or “care for” in the creation narratives, though wonders why this is missing when God gives Noah similar instructions after the flood. He also highlights the commands to give farm animals a rest on Sabbaths and to spare fruit trees (though he squanders this argument, as I pointed out above). He leaves the Sabbath Year till his chapter on land.

The picture by Chagall on the front cover reminds me of a visit to my workplace, Tyndale House in Cambridge, by Prince Philip, when he presented a print of this same picture. His parting message to us was a request that scholars should work on the environmental issues in the Bible. I don’t suppose that Burnside’s chapter resulted from a similar royal command, but it does mean that I am glad he has included it.

The subject of land in chapter 6 covers mainly inheritance law, the Jubilee command and the laws of Sabbath rest. He doubts whether Jubilee was actually practiced, but points out that it forms a good basis for land law. It means that every family retained land, and extremes of wealth and poverty were less likely to develop. Other ancient Near Eastern countries did occasionally practice something similar, though this occurred at random times, such as on the accession of a new king. The regular policy in Israel’s law would encourage investment in property and financial planning. Unlike Egypt, where land was lent to the people by Pharaoh who continued to own it all, the Israelite tribes were given ownership, though their covenant made clear that this was contingent on their faithfulness to God, who would evict them by force if necessary.

The Sabbath year is explored more fully in chapter 7 on welfare. This too was neglected by Israel – 2Chron.36.21 implies that it wasn’t practiced since they started having kings. It was reinstated some time after the exile and he refers to Josephus to show this (War 1.60 on p.206). What he doesn’t mention is the hardships this brought, and the practical problems of cancelling debts – no-one could get a loan near to the Sabbath year, and long-term mortgages were impossible so the rabbis had to introduce the non-Biblical law of Prosbul to cope with the impracticalities of a law which was designed for pre-monetary society. He points out that giving individuals access to land ownership can re-invigorate an economy, but he does not advocate a return to cancelling debts every 7 years or redistributing land every 50 years. However he does point out that forgiveness of debts is an Old Testament message (Deut.15.7-10) and that this is at the heart of Jesus’ message – something which inspired Gordon Brown during the Drop the Debt and Jubilee 2000 campaigns.

Murder in chapter 8 is never plain murder – the discussion of motive and circumstances in the Old Testament is surprisingly extensive. The concept of retribution by relatives is not criticised, but provisions are made to keep an accidental killer safe. The apparent death penalty for accidentally killing a foetus (Ex.21.22) seems out of step, but the Middle Assyrian Law #50 has a very similar command where “life for life” appears to mean the replacement of the lost child with another child which may explain this biblical law (p.278).

Chapter 9 opens with a discussion of the high frequency of theft in modern society. Although there are as many different motives for theft as for murder, these are not discussed at length in the Old Testament nor considered much in modern law. The greatest difference between Old Testament and ancient Near Eastern laws is the degree of punishment which was much greater outside Israel. Although ANE punishments reduced with later reforms (for the Hittite laws we have two sets of punishment) even the more lenient are extremely strict, such as 10 oxen to replace one which was stolen (p.306).

Summarising the laws of marriage and divorce in chapter 10 is a complex task which is undertaken well, especially when speaking about the different types of marriage, including the yabham (levirate marriage with the brother of a deceased husband), chataph or forced marriage and hoshibh which may indicate living together before marriage (p.325-26). There is a fine discussion of Dinah whose marriage by chataph is rejected (though the text doesn’t state that Dinah was forced) because the suitor is a non-Jew – in the end endogamy is more important than any legal consideration. The apparent allowance for only men to divorce (in Deut.24.1) could be interpreted in a narrative way (see above) to include women, because this was normal in ancient Near Eastern law and is found in the 5th C BC Jewish community at Elephantine (p.339). It is a pity that he neglects to mention ancient Near Eastern concubines who (unlike a wife) have no vow-making ceremony before witnesses and few legal rights – the parallels between concubines and modern unmarried ‘partners’ are enlightening.

His treatment of Sexual Offences in chapter 11 is probably the most original and insightful section of the book. He has some fascinating ideas about the structure of Lev.20 which help with its interpretation. He shows, for example, that the list of sexual prohibitions in vv. 10-16 are an escalating series of aberrations from the norm, all encapsulated under the heading of “adultery” (p.361-4). This implies that these are regarded as crimes against other third parties such as the marriage partner and wider family (p.358-9). He points out that modern law regards sexual offence and consent as something decided by an individual or a pair, but Biblical law demands the consent of the wider family or society (p.381f).

He also has a convincing explanation of the virginity test in Deut.22.13-21, which is problematic because not all virgins have intact hymens and because a bloody cloth can’t prove virginity at a specific time in the past. He suggests that the cloth is her betrothal clothing (which was worn only during her betrothal) and the bloodstains prove she menstruated during that time – proving that she was not pregnant and that she was fertile (pp.370-3). This is not entirely convincing (the passage does imply a test for virginity, and normally nidda cloths would stop blood staining from a dress) but it is a useful contribution.

His summary of modern laws of sexual offences are at the same time clarifying and concerning. He illustrates the modern legal principles of equality, individual responsibility and consent and argues that the nuclear family has become the unclear family, because laws of incest now have to include a variety of step-relations. His intimations about the future are sobering: three-fold civil partnerships have been legal in Holland since 2005 – they involve a man and two women but it could theoretically involve a man, his son and his father. And there are groups arguing that modern legal principles mean that bestiality should be permissible. However, he points out that despite these new legal principles, necrophilia and voyeurism are still illegal, which implies that the law continues to be based on morality rather than just individual freedom (p.383).

When turning to the New Testament in chapter 12, Burnside deals almost solely with the issue of Jesus on divorce and remarriage. His summary of Qumran teaching is very good but when interpreting Jesus’ difficult sayings, he relies too much on Heth & Wenham – whereas Heth has changed his mind in the light of new evidence. He concludes that Jesus taught divorce as legally permissible but morally wrong which is “consistent with the kind of thing Jesus would say: it is clear, radical and revolutionary” (p.410). Then he spoils this by saying that Jesus’ stated exception for adultery shows that divorce was not always morally wrong and Paul’s later addition of an exception for abandonment shows that Jesus hadn’t considered the ramifications fully (p.418f).

The trial of Jesus in chapter 12 shows how the legal system could be misused. The charges are confusingly numerous, but Burnside thinks the real motive is unstated: he is suspected of leading a revolution, as marked out by the riot in the Temple and a Slavonic variant reading in Jospephus Wars saying that the priests thought it better to tell Pilate than to let him find out (p.439). The public charge is nicely summed up in John 19.7: “he made himself the Son of God” – this convicts him of blasphemy in the Jewish court and challenging the divinity of Emperors (laesa maiestas) which was punishable by crucifixion in any Roman court for a non-citizen.

This book is a wonderful achievement in both summarising Biblical law and parallel aspects of modern law. These two worlds are presented mostly in terms of contrast, though the development of the new from the old is often implicit. I would have liked to see a chapter on slavery – debt slavery is dealt but modern people-trafficking has many parallels with Old Testament have not been explored even though, as he says, slavery was central to OT law (p.15). Also a chapter on the rules of engagement in warfare and modern arguments about a ‘just war’ would have been welcome. But these are minor quibbles, because such a huge range of subjects were already included.

It will be interesting to see if this provides new impetus for basing modern legal philosophy on morality and religious foundations rather than on utilitarianism. One biblical principle which shone through each chapter was a concern for society as a whole rather than on just individuals, so that the law is an instrument for restricting the rights of individuals in order to protect society. The modern trend to protect individualism has resulted in breakdown of marriage, community structures and respect for law enforcers and leaders even when they are democratically elected. Perhaps the historical perspective of this work will help re-evaluate this trend.

David Instone-Brewer 2011

Tyndale House, Cambridge

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Category: News and Reviews

October, 2015

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