In seeking to discern a Biblical model for economics, one quickly encounters a vexing question, a parting of the ways: are Biblical economic commands “laws” in the traditional sense--that is, regulations for how men should live in society together, which will be enforced by the appropriate social bodies? Or are they merely “moral injunctions”--commands that tell us God’s will, that tell us what the “right thing to do” is, which he expects us to obey, but which no social body has the right to enforce. That is to say, are violations of these commands “crimes” or “sins”? To clarify the distinction, observe the difference between the sixth and tenth commandments: “Do not kill” is not merely a moral principle that each individual ought to observe before God, but a law that society must enforce. “Do not covet,” on the other hand, simply cannot, and therefore should not, be socially enforced; it is a command that each individual is called upon before God to obey, but God only is judge over it. To kill is to commit a crime as well as a sin, to covet is only to commit a sin.
However, it is not obvious that this distinction will apply in the public sphere of economics--coveting, after all, is a private, internal action, whereas economic actions, as we would usually define them, are relational actions, between man and man. So while one may covet money, this wouldn’t be an economic action as such. Now, stealing is an obvious example of a economic crime. And all of the laws which are clearly elaborations of the command not to steal are therefore also examples of genuine laws forbidding crimes. But here’s the rub. It’s a crime to steal...is it a crime not to give? If greed takes the form of taking what isn’t mine, it’s a crime, but if it takes the form of withholding what is mine when I shouldn’t, is it? We modern conservatives would like to say “No! It may be a sin, but certainly not a crime...not anything that laws should regulate and enforce.” (Note that one way of attempting to formulate this distinction would be to say that an economic sin of commission is a crime, while a sin of omission is only a sin; such an attempt, I think, breaks down fairly readily on contact with the text.) I have always turned to the fact that there are in fact quite a few laws in the Old Covenant which regulate not only stealing, but stinginess. But here my opponent has always said that these laws are not in fact laws, but moral injunctions--they forbid sins that God will punish, not crimes that society will punish.
Before, I have always had to admit that, while this seems like a very wrong interpretation to me, importing distinctions that aren’t envisioned by the text, I don’t know the Torah well enough to justify my view in detail. Well, in discussing this problem, my friend Brad B. and I decided that ignorance on a matter this important could no longer be tolerated, and we challenged each other to study the social laws in Exodus through Deuteronomy thoroughly before discussing the issue any further.
Before turning to the text itself, I would like to offer what may provide some further clarification of the problem before us. I’ve been reading Aquinas on law this week, and he makes a striking point about the purpose of law that we have almost altogether lost in modern society. Aquinas argues--or rather, pretty much just assumes--that laws are made not merely to prevent sins/crimes but also to encourage virtue. This is of course the point at which modern liberal politics departed dramatically from the central Aristotelian and Christian political tradition, insisting that the purpose of law is not to make men good but simply to restrain evil--it has a purely negative, rather than positive focus. Indeed, the modern liberal tradition further argued that it didn’t make sense for the law to promote a positive good because the state was not united around a conception of the common good, but simply existed to make possible individual pursuits of goods; and therefore, evils had to be restrained. Aquinas, of course, will have none of this: “The aim of legislation, according to Aristotle, is the fostering of virtue....The good of individuals is not an ultimate goal, but serves the general good; and the good of families serves the good of the self-contained political community.”
Now, Aquinas qualifies this later, saying “Laws must fit the human condition and be possible according to nature and the customs of the land....Since the majority of men to whom human laws apply are not very virtuous, human law forbids only the more serious wrongdoing.” In other words, although law is supposed to promote virtue, it shouldn’t be overly ambitious about this, but should generally focus on restraining the more serious vices. But it is important to note that the modern theory, in which law has nothing to do with fostering virtue, is not even imagined by Aquinas.
Now, what about the Torah? I don’t think there’s any question that it follows Aquinas’s thinking, not modern liberal thinking. These laws are laid down so that Israel might be “a kingdom of priests and a holy nation” (19:6). Elsewhere, God says that they are to be holy even as he is holy. The Torah is given to help form them into a holy people, to foster righteousness, not merely to restrain sin (as you can see, I’m certainly not a Lutheran here).
So here is the digest of my first foray (Exodus 18 through 24). (I'm afraid I haven't had the time to go through this and re-organize this to be as clear and streamlined as I would like, but I'm not going to have the time anytime soon, and I've got other projects to push forward with, so here it is, as it is.)
It is fascinating that the section in which the Law is given and elaborated is preceded by a chapter on the ways of judgment--on how law is enforced, and what kind of social institutions are to oversee justice among God’s people. The Law cannot simply be given in a vacuum--it cannot simply be a set of moral injunctions. It is the law for the people of God, and is not meant to operate in a social vacuum, but within the community of Israel, so before it can even be discussed, the social matrix (it would be perhaps inaccurate to say “institution”) in which these laws are regulated and enforced must be set up. Political order, in this account, precedes legal order. Of course, this may seem that I am trying to prejudge the whole discussion in my favor--social enforcement is presumed from the beginning, therefore all the laws which follow are in fact laws, and not merely moral injunctions. But, this would be much too hasty. Certainly there are laws in the following chapters that are not socially enforced, like coveting just mentioned. However, it is certainly significant that this social matrix, this mechanism of enforcement, is put front and center, a kind of preface to all the lawgiving that follows.
Or, another way of stating the same general point--this chapter, I think, confirms the need for mediation. God’s commands (or most of them, at any rate) do not simply come to the sinner as an individual, a law that the individual must obey before God or risk God’s anger. No, they come to him through the mediation of the community and the community’s leaders, and the individual is responsible to obey them in community, before the community, under the judgement of the community and its leaders. Before we can even hear of the Law, we hear of Moses sitting in a judgment seat, to “judge between a man and his neighbor and make known the statutes of God and His laws.” This principle of mediation is made clear when Jethro tells Moses, “You be the people’s representative before God, and you bring the disputes to God, and then teach them the statutes and the laws, and make known to them the way in which they are to walk and the work they are to do.”
So how does this work? What, according to this chapter, are the ways of judgment? Well, at the outset, we have a single chief justice, so to speak, who is also the chief legislator and the chief executive--quite a concentration of power and responsibility in one man’s hands. Jethro realizes this is not good, and urges Moses toward a more decentralized form of judicial authority, one that, we are to infer, is to characterize Israel from here on. This system of authority, at least on my interpretation, is not an authority structure, an apparatus of government that is plunked down on top of the community; it is not, as I have often put it, a substitute for community, but the outgrowth of community. Judgment is exercised within the context of existing social units--tribes and families. It is not completely clear here that this is what is meant by “thousands, hundreds, fifties, and tens” which could sound like an artificial mathematically-based bureaucracy, but I think that plenty of indications within the broader context and the Pentateuch as a whole suggest that these leaders were to be chosen, where possible, from the existing tribe and clan structure, to exercise judgment within their particular families and sub-communities. If this is correct, then judgment in the community is to be exercised by the community, through its representative leaders. Authority is very personal, very decentralized, and all based on the principle of representation.
Also note that judgment is rendered on a common law basis. That is to say, the laws and statutes grow as a living tradition of case laws, emerging and being continually clarified and elaborated through the course of disputes. This is not particularly relevant to the current question, but it is certainly worth noting as a principle of Biblical law.
Finally, it would not be entirely accurate to say that in this system laws are “enforced,” in the sense we normally think of it. There is no public prosecutor, only what we would call civil suits. The judge does not arrest a man for stealing and try him; instead, he hears a case in which one person brings another to court for stealing. This is clearly the model upon which Moses is hearing cases: “When they have a dispute, it comes to me, and I judge between a man and his neighbor, and make known the statutes of God and His laws,” and I believe this is the model that continues to be presupposed throughout the Torah and on into Joshua, Judges, and Ruth. (If I learn otherwise in the course of my investigations, I shall certainly let you know.)
This characteristic of the social and judicial structure, I think, is quite significant. For one thing, it keeps the power of the “government” to quite a minimum, and reinforces the principle that government is simply an expression of the community, not an apparatus sitting on top of it. If the community is not policing itself, the judicial authority can’t police it for them. The power to enforce the Law is only as strong as the community’s will to enforce it. In other words, if the Law says that debts must be forgiven in the seventh year, and the people as a whole decide they don’t want to be canceling debts in the seventh year, then an infraction of this law will never be tried as a case. Only if an individual says, “This man did not release me from my debts when he was required to” can the dispute be judged and “enforced.” Of course, we feel there must be exceptions to this principle--won’t there be cases in which the victim of a crime is not in a position to bring a suit? I think the Law does address cases like this to some extent (see discussion of ch. 22 below), but this is certainly a question to keep in mind as we go along. In any case, the general principle is clear, and it suggests that we may already be starting off on the wrong road if we are approaching the text with a rigid distinction between “enforced” laws and “unenforced” laws, since “enforcement” in our usual sense was not normally operative.
As we move into chapter 19, we have the preamble, as it were, for the giving of the Law on Sinai. Here, it is simply worth noting again briefly the principle of mediation and of the covenantal, communal context of the giving of the law. The Law is given upon the basis of the Exodus--God has delivered them from Egypt, and therefore expects them to live in light of this as His holy people (vv. 4-6)
In chapter 20, we have the giving of the Ten Commandments, in which we have, as it were, laws relating to all three kinds of justice, as identified by Aquinas--justice toward God (1st-4th), justice toward fellow men (5th-9th), and justice within oneself (10th), though of course these are ultimately inseparable. The 10th commandment, as mentioned above, really keeps things interesting because it is clearly a moral injunction, not a law for society--it tells men how they should live before God, not how they should live before society, since society cannot tell whether or not they are coveting (unless they’re being really obvious about it). The 10th commandment reminds us that these are not simply social laws for a community, but more than that--a standard of righteousness before God. The 10th commandment shows that God is trying to prevent sins, and not merely crimes. But we should beware applying it too broadly--after all, it is distinct from the other commandments in that it is invisible--it cannot be seen by society, and therefore cannot be enforced. Can we treat laws that deal with visible, enforceable offenses as following the model of the 10th commandment? This is, of course, the central question before us.
Chapter 20 ends with God commanding Moses to build an altar--worth noting in the way that it establishes worship as the context of lawgiving, and then in ch. 21, He launches into more specific ordinances, case-applications of the general commands in the Decalogue.
So, as we look at the specific ordinances in 21-24, questions such as these are before us: Do these laws merely prevent crimes, or do they promote virtue? Do these laws govern merely sins of commission, or sins of omission as well? Are penalties prescribed for these laws or not? Are these laws put into effect by some kind of authority, punishment, or social constraint, or are they simply the responsibility of individuals to obey before God?
All of these will contribute to the central question: Can economic regulations in the Torah be separated into one group, restraining serious vices, that must be put socially into effect, and another group, addressing less serious vices, or encouraging virtues, that are commended to Israelites as good morality that they really ought to follow.
Now, in the ordinances in chapter 21, we will notice that there are at least two different ways of couching laws here--type 1 is “If a man does such and such an action, which is a crime, he shall be punished in such-and-such a way.” Clearly a straightforward law with a punishment. There are other laws (I’ll call them type 2) that are phrased “In such and such a circumstances, a man should do such and such.” Now, in these cases, a penalty is not listed, but this does not mean this law was not to be enforced. If a man does something he’s not supposed to, well then, something clearly has to be done about it; it has to be redressed in some way, hence a penalty. But if a man doesn’t do something he should, well then, he needs to do it. It doesn’t need to be reversed, because it hasn’t happened--it just needs to happen. To prescribe a penalty is to make it sound as if a choice is being offered: “You shall do such-and-such...or else pay 50 talents.” Presumably, in the cases where a certain course of action is enjoined, the response, in case of a failure to obey, would not be, “Oh well, he ignored the Law. Bummer,” but a response by the community and its authorities requiring the person to take action or else taking action against him.
The first few ordinances are of this kind (type 2), having to do with how slavery should be regulated. “If you buy a Hebrew slave, he shall serve for six years; but on the seventh he shall go out as a free man without payment.” Now, there’s no “enforcement” listed here. We thus have to reason and use our imaginations a bit here. Suppose that a master did not in fact release his slave. Well, what would happen? Presumably that slave would bring an appeal to the judges, and they would rule that he was in fact free, regardless of what the master said; the master would be required to act accordingly, and if he refused to, no doubt the community would act to defend the slave’s freedom against any attempts by the master to continue to deprive him of it. It is hard to imagine that these ordinances would be unenforced moral injunctions; rather, they are quite clearly enforceable social laws. I make this obvious point simply to note that you cannot just argue from silence (“No penalty is given!”) that the law is not intended to be enforced by human authorities.
The next few ordinances follow type 1--they suppose a criminal action has been taken, and they prescribe how it should be responded to. These ordinances begin with the really serious ones, meriting the death penalty, and then move on to more qualified cases, where there might be some extenuating circumstances. The eye for eye, tooth for tooth law is mentioned here, an application of the same principle as the death penalty for murder. But an interesting twist comes in in 21:28, where the case of an ox goring someone to death is mentioned. Here it is not a murder resulting from a sin of commission, but a sin of omission, that is to be punished: “If, however, the ox was previously in the habit of goring and its owner has been warned, yet he does not confine it and it kills a man or a woman, the ox shall be stoned and its owner also shall be put to death.” (21:29) In other words, if you go and actively take someone’s life, you are guilty of murder. But if you also neglect their safety in a matter that is directly under your responsibility; if you were called upon to take action to prevent the danger of their death, and you fail, then you are still guilty of their life.
Now, I will go ahead and admit my ulterior motive in focusing attention on this case. This seems to me to provide an analogy for why failure to give to the needy, when it is your responsibility so to give, can be equated in certain ways with theft. Taking something that someone needs versus failing to take action when called upon to supply their need--are these totally different sins, one of which is a crime, and one of which is not? The ox analogy might suggest not. But it is only an analogy, and inconclusive.
Moving on to chapter 22 then....Of course there are no chapter divisions in the original, so the laws about stealing here follow directly from those about murder before; the transition is supplied by the ordinance about one ox killing another, which is functionally a form of theft. The laws in the first part of 22 obviously presuppose some concept of private property, though we shall find elsewhere in the Torah that this is attenuated in various ways, so that it is by no means as robust a concept as that which underlies modern economics. The principle here is fairly straightforward, and is really an application of the Golden Rule...if you ruin or take something that is in someone else’s possession, make restitution for it. These laws are of course type 1 cases--something wrongful has been done, and must be redressed.
After verse 15, the commands move on to what my Bible heading calls merely “sundry laws,” since they seem to be all over the board. Here the clear patterns we saw earlier get all jumbled up. We have four laws to start with which clearly follow type 1: “If you do X crime, you will receive penalty Y”--these are seducing a virgin (pay a dowry), sorcery (death), bestiality (death), and idolatry (“utter destruction”). Then, we come to a string of commands couched in Decalogue-esque “Thou shalt not” language: “You shall not wrong a stranger or oppress him, for you were strangers in the land of Egypt. You shall not afflict any widow or orphan. If you afflict him at all, and if he does cry out to Me, I will surely hear his cry; and My anger will be kindled, and I will kill you with the sword, and your wives shall become widows and your children fatherless.” This is quite interesting, because here we have commands that do not really follow either of the two types above. Like the type 1 commands, they are about what not to do, but they do not prescribe a penalty directly; rather, they give a threat--God will punish. And it is phrased in the much more categorical “Thou shalt not,” rather than, “If anyone...” A simplistic way of reading these commands would be to say that these are mere moral injunctions, not laws in the way that all of the preceding are, because the preceding supply human penalties, while these say that only God will punish. Aha! These are sins, not crimes! These are between God and the sinner, they are not society’s business! Well, hang on a minute. Do we really want to go that route? Do we want to say that oppressing strangers, and afflicting widows and orphans, is none of society’s business, that it should not be restrained by laws? I hardly think the most libertarian will want to go in that direction.
Instead, I think there is a rather simple explanation for what we see here--we must remember that these laws that are being given were enforced in the context of civil suits, not public prosecutions. In other words, the idea is that if your ox gores someone, that they or their relative will take you to court, and you will be judged according to the law given here. But what about people who might not be in a position to take you to court, people who would be easily exploited, people whom the courts might be tempted to ignore, whose suits might be liable to be silenced? What about widows, orphans, foreigners? God, recognizing this temptation, offers as a deterrent the warning that even if no human court hears their cause, He will hear it, He will punish. This is not of course to imply that no human court ought to hear their cause, or ought to defend them against depredation, only that God will also defend them.
The “thou shalt not”s continue with an odd mixture of laws--don’t charge interest, return your neighbor’s cloak that is being used as a pledge (here again, the potential sinner is warned that God himself will take the part of the wronged neighbor), don’t curse God, or a ruler of your people, don’t delay the offering, don’t eat any food torn to pieces. I will merely note here that the absence in a listed penalty in each of these cases could scarcely be taken as implying that these laws were not to be enforced in any way. Minimally, we know from elsewhere that cursing God and cursing a leader of your people were both eminently punishable offenses, and we would probably assume that the others listed here were likewise subject to some kind of enforcement.
Chapters 23 and 24
This pattern continues into the beginning of chapter 23, where most of the laws seem to be elaborations of the 9th commandment. Most of these also follow the categorical “thou shalt not” pattern, ending with a reiteration of the command (and its rationale) that we saw in 22:21: “You shall not oppress a stranger, since you yourselves know the feelings of a stranger, for you also were strangers in the land of Egypt.” This command is obviously a big deal (and has a lot to say, if I may briefly venture off-topic, about the conservative Christian antipathy to “illegal immigrants”).
The next set of commands (10-13) pertain to the sabbath day and the sabbath year, and interestingly, part of the rationale for the sabbath year law is that “the needy of your people may eat” (although there are also interesting ecological overtones here). After these come some commands about observing the national liturgical feasts, and the series of commands concludes with that oddest of injunctions, “you are not to boil a young goat in the milk of its mother.” (19) Now, aside from this last one, it is almost impossible to read any of these commands in chapter 23 as moral injunctions that are between God and the individual. These are all completely embedded in the social matrix; they are to be obeyed by the people as a community, and failure to obey them by members of the community is clearly the business of the community. These laws do not envision some people choosing to observe the Sabbath year and others not, some observing the Sabbath day and others not--no, these commands only make sense if they are observed by the community.
I would then suggest that, as I read the whole of the commands in 20-23, it is hard to see how any of them could be moral injunctions forbidding “sins,” and others real laws forbidding “crimes,”--they all seem to be part and parcel of the same kind of regulation of community life. This is emphasized further in the way that the community responds to these laws by renewing covenant in chapter 24: “Then Moses came and recounted to the people all the words of the Lord and all the ordinances; and all the people answered with one voice and said, ‘All the words which the Lord has spoken we will do.” (v. 3)
I would thus suggest that, among all the fascinating things we can discern about law in these first chapters, we cannot discern here at least a disjunction between “sins” and “crimes,” between “moral injunctions” and “laws,” at least when it comes to external actions. But this is only part 1 of a long study. We shall see where the rest of the Torah leads us.