Posted by Brad Littlejohn at 12:28 PM
Since daring to post that taxation and theft essay on Facebook, I’ve been snowed under responding to comments and objections there, so instead of posting a bit on Just War theory, as I was hoping to, I will just offer instead one of the more substantive clarifications I posted in the taxation and theft discussion:
One thing worth dealing with properly here and now is the issue of the OT laws. For the sake of conciseness, I offered in my initial post a rather brief appeal to the matter of the OT laws, a matter which I’ve been studying for a long time (largely in order to get a handle on these very issues). Two main lines of objection have been raised. The first is that the Old Testament laws never authorize a centralized government authority to tax money from one group of people, pool it, and then hand it out to another group of people. I substantially agree with this objection (though I shall offer something of an exception in a moment). My point was not to say that the OT laws authorized this.
Indeed, I made a point of saying this: “Of course, we cannot make simple one-to-one applications from the OT laws to welfare laws today; far from it.” Many pertinent facts are quite different--for one, we're now living in the New Covenant! My appeal to the Old Testament laws is to establish a more basic point--that it can be just for law to “require that resources be taken from those who have surplus to help supply the needs of those who, for whatever reason, do not have enough,” as I put it in the initial post. They generally do not accomplish this goal by taxation (again, with it seems to me, one exception), but indeed, it seems they are more radical, more “intrusive” upon property owners than mere taxation. Let me spell out the most relevant laws to make sure this is clear. Dt. 15:1-18 requires that in the Sabbath year, debts be released. This means that if I’ve loaned you money, money that is “rightfully” mine, that you ought to pay back, I am required by law to let you keep it after a certain amount of time (worse, the law goes on to say that I’d better not hesitate to lend to you on that account!). This is, it seems to my mind, at least as intrusive as taxation. In the Jubilee year, all property was to be returned to the original owner (Lev. 25:8-22); this is to prevent any Israelites from becoming permanently landless and thus chronically impoverished. Now, this is not a straightforward rich/poor redistribution; in fact, it is something rather more radical. It’s a mechanism for preventing, as much as possible, such a distinction from arising, in any long-term form. No matter how bad things got for someone, he could always be assured that he’d be alright, because he could get his property back, and his debts cancelled, at the expense of those who had amassed a lot of property and wealth. Such legally-mandated equitable (not egalitarian) distribution seems to be a much more radical imposition than mere taxation. Now we move on to the more directly relevant laws: we have laws like the gleaning laws (Lev. 19:9-10; Dt. 24:19-22) and the requirement that all the produce of the land in Sabbath year be shared (Lev. 25:1-7). In other words, a portion of what you produced, on your property, was, by legal mandate, to be free for the taking of anyone who required it (though they, in their turn, weren’t to abuse this right--Dt. 23:24-25). Not a terribly huge portion, because, on account of the debt release and Jubilee laws, poverty should not have been a terribly big problem. Now, these laws are still different in form from redistributive taxation--which would be leaving the corners of the field for the local magistrate to come reap (or handing over a share of your reapings), and for him to then distribute to the local needy--but they are essentially the same in effect, and in the underlying principles. Indeed, one could say that the OT law is in some ways more instrusive than taxation, because although a lot of us resent paying taxes, I think we would resent it rather more if the law gave the poor to come into our field, or our store, or our office, and take enough for their sustenance that day. That said, I prefer the minimum of gov’t involvement that the gleaning approach offers.
Finally, we have one law, the triennial tithe, that seems like straightforwardly redistributive taxation (this is the one exception I mentioned). Deuteronomy 14:28-29: “At the end of every three years you shall bring out all the tithe of your produce in the same year and lay it up within your towns. And the Levite, because he has no portion or inheritance with you, and the sojourner, the fatherless, and the widow, who are within your towns, shall come and eat and be filled.” Again, it is a very modest tax by our standards, because, on account of the laws to prevent poverty in the first place, it didn’t need to be very large. But it was a tax all the same.
Now, all this with regard to the first objection. The second objection claims that, while all these laws are in the Torah, they are not really laws...not in the sense we are discussing, anyway, because no one would’ve enforced them. They are, we are supposed to believe, more like “Thou shalt not covet,” moral principles that God lays down. Now, so far as I have been able to determine--at least, so far as it has ever been explained to me--this interpretation relies on a single, simple criterion for determining this sweeping and remarkable judgment: it never says how they might have been enforced, ergo, they obviously weren’t to be enforced--that means you couldn’t make someone give land back at the Jubilee, or stop someone from trying to wring debt payments out of someone after the Sabbath year, or stop someone from charging their brother interest, etc. Now, to be frank, this sort of hermeneutic seems an awful lot like those people who insist that, in order to take the Bible seriously, they have to read every prophecy “literally,” so that they insist, for instance, that clearly Isaiah’s prophecies against Babylon haven’t been fulfilled, because the moon hasn’t yet turned to blood; obviously, Babylon is going to be rebuilt, and then destroyed once again, complete with celestial fireworks, in fulfillment of the prophecy. Now, when someone gets a hermeneutical principle that enshrined in their head, to the exclusion of all other considerations, it’s hard to argue. But let me make a stab at it in this case.
First of all, that objection seems to display an ignorance of how legal science works. I am not a law expert, and I hope someone who is can help clear this up for us, but my understanding is that even modern law codes, which are extremely systematic, thorough, and all-pervading, do not prescribe precisely what the punishments are to be for every offense, particularly for civil, rather than criminal prosecutions (and almost all OT prosecutions were of the former kind). That’s why you sometimes get these judges handing down these absurd rulings, like the old lady who gets $5 million for burning herself on a McDonald’s coffee--the law leaves the determination of the penalty up to the court. Now, how much more should this be the case for a law code in the ancient world, when law codes were never as systematic, precise, and all-pervading! Particularly when, as was especially the case in ancient Israel, the structures for enforcing justice were highly localized and decentralized. The Torah was to be for the whole nation, but there wasn’t a Supreme Court responsible for enforcing it; rather, the Torah states what should and shouldn’t be done, and, though in quite a number of cases it spells out precisely what ought to be done to those who violate its commands, in other cases, it leaves this underdetermined, or entirely undetermined, since no doubt in many cases, the local court would want to be able to exercise its discretion in resolving the problem as seemed to suit the particular circumstances.
As it is, it seems clear, from the form in which the Torah law-codes have come to us, that they were never intended to be exhaustive, but rather, a large number of representative examples of what was and wasn’t to be done in various situations, and what sorts of punishments were to be imposed on offenders. It never presents itself as trying to give all of the relevant facts.
Now, I know the die-hards aren’t buying it yet. So I will attempt to show a) that many laws that it would seem would have been enforced do not have an enforcement mentioned; and that b) some laws that don’t have an enforcement mention were, indisputably, enforced.
So then, let’s look at the first set of laws in Ex. 21-23. We begin with a long series of laws in what’s called the casuistic form, which is basically, “If anyone does this, this shall happen to him.” This form generally tells us the penalty as part of telling us the law. Not always, though. For example, 21:2: “When you buy a Hebrew slave, he shall serve six years, and in the seventh he shall go out free, for nothing.” Ok, but what if I don’t want to let him? What if I refuse to let him go free? It doesn’t say. Does that mean there could have been no enforcement? What about the law in the same form, near the end of this section, “If you lend money to any of my people with you who is poor, you shall not be like a moneylender to him, and you shall not exact interest from him?” Is this drastic imposition upon the “free market” to be enforced? The laws then turn to the apodeictic form--”You shall, you shall not”--this form often does not include any word as to enforcement. “You shall not revile God, nor curse a ruler of your people” (22:28); “You shall not spread a false report, or bear false witness in a lawsuit” (23:1-2); “You shall not oppress a sojourner” (23:9)--none of these would have been enforced?
How ‘bout Leviticus? Right after the gleaning laws, which we are told would not have been enforced, because no enforcement is mentioned, we have “You shall not steal; you shall not deal falsely; you shall not lie to one another....You shall not oppress your neighbor or rob him....You shall do no injustice in court....You shall not go around as a slanderer among your people.” (Lev. 19:11-16) None of these would’ve been enforced? What about Dt. 19:14: “You shall not move your neighbor’s landmark, which the men of old have set, in the inheritance that you will hold in the land that the Lord your God is giving you to possess”? I could go on, but I’ll stop.
What about b)? Do we have proof that laws for which no enforcement was mentioned were in fact enforced. Sure we do. We know that by the time of Christ, laws regarding the Sabbath day were being quite rigorously enforced, for instance, even though the Torah, so far as I know, never says what you’re supposed to do with someone if they do not keep the Sabbath holy. Ah, but these were Pharisees. Ok, what about Nehemiah? I quote from Nehemiah chapter 5 (thanks to my Dad, who suggested peeking around in Nehemiah for some guidance):
“Now there arose a great outcry of the people and of their wives against their Jewish brothers. For there were those who said, "With our sons and our daughters, we are many. So let us get grain, that we may eat and keep alive." There were also those who said, "We are mortgaging our fields, our vineyards, and our houses to get grain because of the famine." And there were those who said, "We have borrowed money for the king’s tax on our fields and our vineyards. Now our flesh is as the flesh of our brothers, our children are as their children. Yet we are forcing our sons and our daughters to be slaves, and some of our daughters have already been enslaved, but it is not in our power to help it, for other men have our fields and our vineyards." I was very angry when I heard their outcry and these words. I took counsel with myself, and I brought charges against the nobles and the officials. I said to them, "You are exacting interest, each from his brother." And I held a great assembly against them and said to them, "We, as far as we are able, have bought back our Jewish brothers who have been sold to the nations, but you even sell your brothers that they may be sold to us!" They were silent and could not find a word to say. So I said, "The thing that you are doing is not good. Ought you not to walk in the fear of our God to prevent the taunts of the nations our enemies? Moreover, I and my brothers and my servants are lending them money and grain. Let us abandon this exacting of interest. Return to them this very day their fields, their vineyards, their olive orchards, and their houses, and the percentage of money, grain, wine, and oil that you have been exacting from them." Then they said, "We will restore these and require nothing from them. We will do as you say." And I called the priests and made them swear to do as they had promised. I also shook out the fold of my garment and said, "So may God shake out every man from his house and from his labor who does not keep this promise. So may he be shaken out and emptied."
Here we have a clear account of Nehemiah bringing charges against wealthy men for violations of the usury laws and, it appears, debt-slavery laws, even though, in the Torah, we have no mention of anyone enforcing these.
All of this does not prove that the gleaning laws or the triennial tithe, for instance, would have also been enforceable in court, but it means that there is no prima facie reason to suppose that they weren’t, and, once we look at the context and the larger goals of the law, it seems to me fairly convincing that they were.
However, I wonder if the whole question about whether the gleaning law would've been "enforced," for instance, is not a bit beside the point. The key question, as I have tried to insist, is whether "theft" is strictly speaking, the proper accusation, and if so, why. That all seems to depend on the question: "who has a right to the property?" Now, suppose that I have been entrusted with a number of gifts, that I am supposed to hand out to my siblings. I keep them for myself instead. So my siblings go into my room and take them. Now, this was perhaps a breach of some kind of charity or etiquette, but was it “stealing”? It doesn’t seem like it. What if my parents ordered me to hand over the gifts to them, and then distributed them to my siblings? Would that be stealing? Or, to try an analogy more alien to our experience--suppose my father goes away, and leaves me with orders to care for my younger brother, who is sick and unable to earn his keep, and therefore will depend on my income for sustenance. If I refuse to give him any money for food, is it “stealing” for him to take some from me? Is it stealing if he appeals to a friend who has been appointed mediator between us, who then requires me to supply him what he needs? Both the brother or the mediator could do all kinds of things wrong in the way they take the money, but I don’t know if they would be “stealing” by taking it. All this then comes back to a question, raised in a discussion on here last fall, as to whether the requirements to share these resources with those in need of them are duties of charity or duties of justice. I’m contending, as seems to me clear from the OT and from historic Christian teaching, that they are duties of justice. Which means that, if the law is requiring me to fulfill these duties via taxation, it might be doing a lot of things wrong, but it’s not “stealing.” So the OT laws, in this discussion, serve to show that I really do legally owe it to my poor brother to make sufficient provision for his needs, and thus these are duties of justice, however they may have been enforced in the OT. Of course, a tension for me is that I have unanswered questions about the nature of the distinction between charity and justice. So any contributions on that front would be most welcome.