What kind of law is Biblical law?

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Two types of Biblical law

There are basically two types of "law" in the Bible:

1. Apodictic: law stated in the form of an unconditional command. Example. "You shall not murder," (Exod. 20:16).

1. Casuistic: law stated in the form of a hypothetical set of circumstances which result in a type of "conditional apodictic" command. Example: "If a man strikes his manservant or his maidservant with a rod, and he dies under his hand, the man shall surely be punished." (Exod. 21:20)

Often, you will hear the "casuistic" laws labeled by theologians (and other Christian teachers) as "case laws." There is nothing inherently misleading in this label -- in the context of theology. However, "case law" also happens to be a technical term, with a long-standing definition in the field of legal studies.

case law: n. reported decisions of appeals courts and other courts which make new interpretations of the law and, therefore, can be cited as precedents.

This overlap of terms can be confusing: most of the casuistic laws in scripture are not the "reported decisions of courts." So when theologians use the term "case laws" it can confuse the issue for people who are familiar with the modern legal term. There are actually only four literal "case laws" (by the definition above) in the Pentateuch. Here is one example:

32 While the children of Israel were in the wilderness, they found a man gathering sticks on the Sabbath day. 33 Those who found him gathering sticks brought him to Moses and Aaron, and to all the congregation. 34 They put him in custody, because it had not been declared what should be done to him. 35 YHWH said to Moses, “The man shall surely be put to death. All the congregation shall stone him with stones outside of the camp.” 36 All the congregation brought him outside of the camp, and stoned him to death with stones, as YHWH commanded Moses. Numbers 15:32-36WEB

Each of the four Pentateuchal case laws presents us with new information about the application of YHWH's law. But notice how, in each case, the "judge" revealing this new information is YHWH himself, not the human Moses. Moses did not take it upon himself as a judge to add to God's law. And with good reason. Because one of the commandments forbid it:

2 You shall not add to the word which I command you, neither shall you take away from it, that you may keep the commandments of YHWH your God which I command you. Deuteronomy 4:2WEB

Biblical law versus Common Law

This is an important detail to understand, because the term "case law", in certain Western legal traditions, is also roughly synonymous with something called "common law". "Common law" refers to a "customary" Western legal tradition in which judges are designated as the authoritative "discoverers" of new law:

common law [is] the body of customary law, based upon judicial decisions and embodied in reports of decided cases, that has been administered by the common-law courts of England since the Middle Ages. From it has evolved the type of legal system now found also in the United States and in most of the member states of the Commonwealth (formerly the British Commonwealth of Nations).

Integral to the modern "common law" idea is a commitment to legally-binding "precedent": a previous court's decisions must be considered authoritative for a relevantly similar set of facts:

The primary facet of the common law legal tradition is the employment of custom or, as it is called in modern times, precedent to adjudicate violations of the criminal law. In a common law legal tradition court, such as those found in the United States, where criminal codes have been adopted, although a criminal statute is the basis for the criminal charges against a suspect, the law is applied by reference to legal precedents. Legal precedents are previous court decisions that have interpreted and applied that statute. The reason for the use of legal precedents is that any criminal statute cannot possibly foresee and address all possible ways the crime in question could be committed. Accordingly, courts are allowed to use precedents to aid in the adjudication of violations of the criminal law.

When I say "modern", I mean that this idea of "binding precedent" was never widespread until the seventeenth century.

Unfortunately, some Bible interpreters will (anachronistically) interpret Biblical law in light of this modern "common law" understanding. For example, Joshua Berman writes:

Deuteronomy presents a record of Moses’ common-law application of earlier teachings. God had spoken at Sinai to a people just released from bondage. Now, with the people poised to enter the land of Israel, Moses interprets and reapplies the laws to accord with an array of challenges they will meet there.

Of course, the above statement is anachronistic and misleading. Moses did record a few actual legal cases: there are examples in Leviticus and Numbers. But Deuteronomy contains laws, like Exodus, which are directly given by YHWH, not "discovered" through Moses' activity as a judge. They have nothing to do with "common law."

Biblical law versus Statutory law

Although we still find remnants of the "common law" tradition in a few places today, it has mostly been replaced by "statutory law", which are laws enacted by a legislature. When men want to increase the power of civil government over their fellows, they don't usually want to wait for a judge to "discover" a new authority in the law (although that sometimes still happens). Now, the legislators simply create a new law by fiat. If they find that there is some detail which they missed, they can add it in the next legislative session.

These statutory laws often arise from a motive to extend control of the civil government into areas which were previously realms of individual freedom. But another main idea driving statutory law is that legal statutes must explicitly address every possible area which the legislators want to forbid or regulate. This has a fancy Latin name: Nullum crimen sine lege ("No crime without a law"):

Nullum crimen sine lege is the principle in criminal law and international criminal law that a person cannot or should not face criminal punishment except for an act that was criminalized by law before he/she performed the act. This idea is also manifested in laws that require criminal acts to be publicized in unambiguous statutory text.

The statutory text must be "unambiguous". Otherwise, clever people might find "loopholes" in the law, and a future legislature will find that they must add even more detail to ensure that the law covers every possibility.

We can now see how the statutory law tradition differs philosophically from the common law tradition: the "common law" tradition put a lot of power into the minds of individual judges, with the minimal constraint that they should not overturn legal precedent. Statutory law attempts to remove this power from the judges, constraining them to interpret and apply the law as written in the statute. Judges who create expansive rulings, going beyond the statutory language, are accused of "legislating from the bench."

Given that statutory law is modern idea, it shouldn't surprise us that Biblical law is not like statutory law. Biblical law is a unique legal code, which is intended to be both didactic (teaching legal principles) and abstractly casuistic. It does not attempt to cover every hypothetical detail, even pertaining to the time in which it was written. It depends upon the minds of humans to understand how the general casuistic principles (which some people label as "general equity") in the law apply to relevantly similar cases.

YHWH intended for these general principles to be understood by everyone, not just judges and lawyers. In fact, YHWH commanded that his people teach the law continuously to their children (Deut. 6:6-9, 20-25; Deut. 11:18-21), and every seven years by the Levites to all the people (Deut. 31:9-13). Judges could be selected from any tribe, and any person could serve, not only from the Levites.

And if Biblical law does not identify an act as a crime -- at least in principle -- then it is not (and can never be) a crime (Deut. 4:2), despite what certain humans may want. This is possibly the biggest difference between modern law traditions and Biblical law.

Modern errors

Thus, there are two modern ideas about law which often mislead interpreters when they examine Biblical law:

1. A presupposition that functional legal systems (civil government) ought to regulate every area of human life. This is statism, or the nanny-state mentality, or a belief in the "magistrate" as "nursing father."
2. A presupposition that a functional law code must strive to be comprehensive in its coverage and detail.

Neither of these beliefs correspond to YHWH's "perfect" (Ps. 19:7) law. God's law does not try to criminalize all sins. It does not try to comprehensively anticipate every future contingency, when it teaches us principles of justice. It requires men to elect judges who are both committed to justice (Deut. 16:18, John 7:24) and wise enough to apply legal principles (Prov. 2:1-10) without usurping YHWH's authority by creating new laws (Deut. 4:2).

You will often find people misunderstand Biblical law because of the above two false presuppositions. For example, here is Joshua Berman explaining why Biblical law shouldn't be called a "law code":

Similarly, as in [the Code of Hammurabi], critical aspects of daily life receive no legal attention. The Torah clearly endorses and sanctifies the institution of marriage, for example; yet, if you want to get married, it nowhere says just what you have to do, ritually or contractually. In a work of statutory law, that would be unthinkable.

It is "unthinkable" for a modern scholar like Berman for civil government not to be involved in marriage formation and other "critical aspects of daily life". He doesn't seem to realize how his anachronistic expectation causes his interpretive failure. The non-involvement of Biblical civil government in marriage formation and dissolution is not a bug, it is a feature.

Another example:

For example, despite their importance, there are no laws in the Bible covering adoption or property rental, although these concerns are addressed by other ancient Near Eastern legal collections.

There are many differences between Biblical law and other ancient Near Eastern legal collections, but the above difference is not a deficiency of Biblical law, only a failure of the interpreter to recognize that YHWH left many important tasks within the freedom of family decision-making.

An example from James Jordan (who also used the following claim in an argument against theonomy):

if the case laws are designed as a judicial code, then they are incomplete as to form. As Cassuto again remarks, “Another important distinction between state legislation and the Torah laws is to be seen in the fact that the form of the latter is not always that of a complete statute. They do not always state the penalty to be imposed on the transgressor; sometimes only an absolute command or prohibition is enjoined as an expression of the absolute will of the Lord."19 Under the principle of case law, some judicial penalties are spelled out in the Bible, but not necessarily all. In some cases, only the moral prohibition is given, and we are left to discern for ourselves what an appropriate civil penalty would be, if any.

Here, James Jordan is relying upon the opinion of the Jewish rabbi/commentator Umberto Cassuto, who asserts that "complete statutes" must always state a penalty to be imposed upon the "transgressor". Cassuto's is a common rabbinic understanding: the written Torah is incomplete apart from Jewish oral tradition, which supplies necessary information which is missing from the written scripture. It is apparently inconceivable that YHWH would make a law forbidding an act, and not grant human civil government any authority to enforce that law with a penalty ("You shall not add to the word which I command you..." [Deut. 4:2]).

One more example:

The contrast between the biblical and the Mesopotamian legal corpora is underscored even further by the almost total absence in the former of normative rules, that is, formulations of the proper procedures governing commerce and economic life in general. The legal sections of the Pentateuch betray what amounts to complete indifference to the formalities without which the most elementary social institutions could hardly be said to function.

This quote is from a highly-cited essay in Biblical legal scholarship comparing Biblical law to other ancient Near East laws. Finkelstein believes that "elementary social institutions" cannot "function" without legal statutes specifying "procedures governing commerce and economic life in general." It apparently isn't enough that Biblical law regulates the procedures and penalties for crimes like theft, bailment loss, and property damage. The Biblical "indifference" to detailed economic regulations seems like a problem to him.

Let's examine a few of those Mesopotamian economic regulations, just to see what Biblical law was missing:

If a man has bought silver, gold, a slave, a slave-girl, an ox, a sheep, a donkey or anything else from a man's son or a man's slave without properly witnessed receipts, even if he has accepted them just to look after them, that man is a thief, and shall be killed.

If a tavern-keeper (feminine) does not accept corn according to gross weight in payment of drink, but takes money, and the price of the drink is less than that of the corn, she shall be convicted and thrown into the water.

If a "sister of a god" open a tavern, or enter a tavern to drink, then shall this woman be burned to death.

If a veterinary surgeon perform a serious operation on an ass or an ox, and cure it, the owner shall pay the surgeon one-sixth of a shekel as a fee.

If a shipbuilder build a boat of sixty gur for a man, he shall pay him a fee of two shekels in money.

One major difference that you will find between the "Mesopotamian legal corpora" and Biblical law is a near complete absence of fixed prices in Biblical law. As hinted in the examples above, price fixing is found extensively in the Code of Hammurabi. Anyone with a basic understanding of economics will see how counterproductive and unwise this is. It is a mark of the wisdom inherent in Biblical law that it does not have laws which interfere with market transactions, other than dealing with fraud or theft. That certain scholars see this lack of regulation as a deficiency is a sign that they have been indoctrinated into a modern statist mentality.

Rule of Law versus Rule of Relationships

Before the recent dominance of the modern "rule of law" idea (which actually has its origin in God's law), most people in history have lived under a "rule of relationships." People were governed primarily by:

1. kinship ties
2. tribal affiliation
3. ruler/vassal treaties
4. patronage/client relationships and feudalism
5. commercial customs in which one's participation depended upon maintaining good relations with trading partners

In such an environment of "relationships", the Biblical idea of "rule of law, not men" was revolutionary, and it eventually transformed the West. It turned the injustice of relationship power upside-down. It guaranteed the rights of the weak and powerless in the face of those who used their class status and relationships to oppress others. It ensured that every man (including foreign sojourners) was treated equally before the bar of justice (Exod. 23:3, Lev. 19:15), rather than favoured or disfavoured because of their wealth, tribal affiliation, family, because of "whom they know", or "whom they are friends with".

In its purest expression -- Biblical law -- "rule of law" subordinated the authority of every man to transcendent standards of justice, which applied to everyone in the jurisdiction (Exod. 12:49, Num. 15:30, Num. 35:15). No one -- even the king -- was "above the law" (Deut. 17:15-20). No criminal offender's relative could be killed on their behalf (Exod. 21:31, Deut. 24:16), as was common in ancient Near Eastern law. No father had the right to kill his children at will like ancient Roman fathers did (Deut. 21:18-21). No master had the legal right to kill his slaves on a whim, the way most slaveowners in history have been allowed to do (Exod.21:20). Under Biblical law, no thief was subject to a summary death penalty the way they were under the medieval, feudal infangtheif custom. Under Biblical law, the common practices of "duel" and "trial by battle" are treated as cases of murder.

Unfortunately, modern legality has also been corrupted by power seekers. The idea of substantive (i.e. transcendent) rule of law has given way (particularly since Hobbes and Bentham) to an instrumental, merely "formal" rule of law. The limitations upon civil government encoded in Biblical law have been abandoned, as men sought power over their fellows. Christians in history, following the error of the Israelites, have rejected YHWH as king (1 Sam. 8:7) and have continued seeking "kings like the heathen," to whom they could look as substitute messiahs. Christians have been at the forefront of increasing the power of the state, usurping the authority of YHWH. They have ignored the plain Biblical command, which guarantees that the power of civil government will always be limited, but only if we actually obey it:

2 You shall not add to the word which I command you, neither shall you take away from it, that you may keep the commandments of YHWH your God which I command you. Deuteronomy 4:2WEB