We are in the midst of examining the body of covenantal stipulations that follow the Ten Commandments, which we said serve as a summary or epitome of the covenant. The stipulations are mostly in the form of case laws and we considered the body of personal injury case laws last Lord’s Day evening.
Before moving on to laws governing crimes against property, let me say a word about the importance and relevance of this material. There is a strong predisposition among Christians nowadays to privatize their faith and to think of it almost exclusively in terms of the help and benefit it supplies to them personally and individually. It is a temptation particularly acute in times when the public influence of our faith is on the wane. Far too many Christians in our time are not really interested in the public, the cultural, and the political implications of the Christian faith. Larger issues are only selectively interesting to them. They may be radicalized by certain ethical issues as abortion or gay marriage, but they are not interested in larger questions as a rule. I don’t mean, of course, that there are not many exceptions. But I think this is a largely fair characterization and one that is confirmed by hard facts, such as the inventory on Christian bookstore shelves.
A friend of mine, only slightly older than myself, points out in a recent essay, that there is a great deal of difference in what is published even by Reformed and Calvinistic publishers today than what they published 30 years ago. Many of the books of that time engaged large questions, studied matters of great interest to the political and cultural life of the world. “They were books about the kingdom of Jesus the Christ, who claims all of life and culture?” [Jim Jordan, “The Closing of the Calvinistic Mind,” Biblical Horizons 177 (August 2005)] But few such books are published today. There has been a shrinking, my friend says “a closing” of the Calvinistic Mind. It is difficult to argue with that assessment in large part because it is confirmed by such hard facts as books on bookstore shelves and the offerings of publishers. Those who sell books even to Calvinistic Christians obviously do not think there is much of a market for serious reflection on public issues.
It is worth our remembering, on this Reformation Sunday, that the Reformation, though at bottom a revival and a movement of theological discovery occasioned by a fresh reading of Holy Scripture, became almost immediately a force for profound cultural and political change. The Reformation changed schooling, it changed art, it changed business and commerce, it changed law and justice, and it changed government. And, what is more, it effected these mighty changes on purpose and in the name of and for the sake of the kingdom of Jesus Christ. The Reformers never imagined that the Bible was primarily a book for private use, concerned with only the issues of the individual believer’s life or, at most, the life and order of the church. They saw immediately the implications of biblical truth for the world, for human society, and for the institutions of civilization.
That is as it should have been! The Bible is not simply truth for you. It is truth for everyone. It is for the world and it engages all the issues of human life, from the individual up to the civilization. If we are genuinely loyal to the Lord, we will be interested not only in how the Word of God directs our own steps, but what truth it offers and what light it shines on all the questions and the problems of human life and how it answers the truest aspirations of every human heart with a comprehensive view of and order for reality. Individuals are influenced profoundly for good or evil by social structures, by cultural and political systems of thought and action. And human beings who, in Christ’s name, care about the lives of other human beings, cannot be indifferent to these larger structures and systems or to the guidance the Bible gives us both for evaluating them and for changing them. No one ought to have a greater public interest than a Christian, a follower of the King of Kings, whose goal it is to save this world and meantime to demonstrate his glory in it. In the long run, the effect of biblical truth on the culture as a whole will have more to do with how most individual Christians live their lives than will their own private reading of the Word or even their hearing it preached in church. Those social and cultural influences are pervasive and profound and, like it or not, we are all shaped by them. That is why they cannot be a matter of indifference to us and why they too must be the object of our Christian concern.
So, while the laws of the covenant may have some very personal implications for us, they have very clearly public and social implications. Those should not make them less interesting to us, but more. In the case of these laws we are considering tonight and those we considered last time, they provide us with principles of justice and jurisprudence by which human life and society should be judged. It is precisely our departure from these principles as a civilization that is so radically reshaping our public understanding of what it means to be a human being, what justice is, how it ought to be served, and so on. And the proof that our departure is a capital mistake is found on every hand. We must have the confidence to restate our position from the Word of God until the culture realizes what it has lost and wants to get it back again.
As we said, the next section concerns not crimes against persons but against property.
v.34 What is contemplated is a simple act of carelessness – the pit was likely for the storage of either grain or water – and the loss of another man’s animal as a result.
v.35 You see again, as last time, the law’s concern for fair dealing. There is an important difference between an accident and a crime, but even in the case of an accident there is a requirement to make the injury good. Remember, the difference between having that ox and losing it could be the difference between prosperity or poverty for an Israelite farmer and, finally, between freedom and slavery. The loss of the goring ox would have been a considerable loss to its owner.
v.36 Once again care is taken to distinguish an accident from criminal negligence or depraved indifference. In cases of a crime, the interest of the law continues to be to make good the loss, to restore what the victim has lost.
v.1 As the crime becomes more deliberate and more malicious the penalties become steeper. The ox is more valuable than the sheep in any case and a trained ox harder to replace. The ox was to the Israelite farm what the family water buffalo is to a Southeast Asian family, almost a member of the family, and took years to train.
v.3 In the dark, the homeowner doesn’t know what the intruder intends and may kill him unintentionally in the fight that ensues. But a thief who is only a thief can be seen for what he is in the daylight and can be identified for capture and prosecution later. Even the thief has rights, for he too was made in the image of God. But, of course, it is but one brief description of possible circumstances. If the thief is armed and attempts to kill the homeowner, even in the daylight, the homeowner has a right to defend himself and his family and if the thief is harmless and was visibly so the homeowner can’t kill him, even at night. [Cassuto, 282-283]
Again, the thief must restore what the homeowner lost. But what if he can’t? Many thieves are poor investors of their ill-gotten gains. They spend, they do not save. Well, in such a case we have no option but to put the man in prison. In Israel, they sold him into slavery (with all of its regulations protecting the man’s right to start again no more than seven years later) and, in that way, ensured that the victim was compensated.
v.4 That is, he must give back the animal he stole and another as well. He must be punished for what he did and it is no punishment simply to make him give back what he stole. He must suffer some positive loss. The victim gains another animal for his trouble. In the Code of Hammurabi, a thief under such circumstances was to be executed.
v.5 A better translation than the NIV’s is provided in the ESV: “If a man causes a field or vineyard to be grazed over, or lets his beast loose and it feeds in another man’s field, he shall made restitution…” As in the Rogers and Hammerstein musical Oklahoma, the cowman and the farmer are not always friends. Nor were they in the ancient Near East. And for the same reason: the fields taken up by grain are or were grazing land for the animals. Restitution must come from a man’s best, not his worst. Let him feel the loss he caused his neighbor.
v.6 The thorns in question probably formed a hedge that divided one field from another. We know very well today how easily fires set to burn stubble can get out of control and do serious damage. Such an example is given precisely because brushfires were dreaded in the ANE because of the hot dry summers and the Mediterranean type of vegetation. Even if the fire were an accident, the one who started the fire is responsible for the damage done.
v.7 “Neighbor” should not be understood in our contemporary sense. Here it refers to a fellow Israelite. The thief could come from any group, but it is understood in what follows, that the two men – the owner of the property and his neighbor – are fellow Israelites and mutually obligated to Yahweh’s covenant. [Durham, 325]
v.8 What the text literally says is that the owner of the house must “come near to God.” No doubt “come to the sanctuary” is what is meant, where the judges will hear the case and where the man would take a solemn vow of innocence before the Lord and invoking his name (as in v. 11). If the man swears falsely, well God will see to it that he answers for that. The covenantal bond between the two Israelite men is what makes all of this so serious and so effective. In any case, as the other cases make clear, if the loss was due to the negligence of the homeowner, he would be responsible to make restitution.
v.9 An object has been lost; the owner later sees a similar object in the possession of another man and claims that it is the very object that he lost and, thus, that it was stolen from him. The assumption is, of course, that the judges will weigh evidence, take testimony, and so on until they come to a verdict.
v.10 Then as now the doing of a good deed, extending kindness to a neighbor, can lead to difficulties. We have good Samaritan laws to deal with precisely this problem.
v.11 Donkeys, oxen, and sheep were the most common domestic animals in Iron Age Palestine and the most common form of wealth. No wonder many of these property cases concern the loss of these animals. Not only is there no proof of complicity on the part of the homeowner in the loss of the other man’s property, but a solemn oath of innocence is required. There the matter must be left. The oath amounts to be most solemn protestation of innocence of which anyone is capable and there is no evidence to affirm or contradict. In this world no one can expect perfect justice in every case. The law is willing to tell a man who has lost some of his property that there is nothing to be done and he must simply bear his misfortune. In our modern jurisprudence, too many efforts to circumvent this biblical realism have resulted in innocent people being made to pay for a victim’s losses. God’s law does not permit the innocent to be held accountable when a guilty man cannot be found or cannot be made to make restitution.
v.13 Little remarks like these remind us that the Israelites were fully aware of the need for evidence in order to prove guilt and of the power of evidence to exculpate the accused. In this case the carcass would prove that the man had not stolen the animal and sold it or eaten it. The carcass stands for all manner of evidence, from eyewitness testimony to fingerprints to DNA.
v.14 “Naturally more responsibility lies with the man who takes the initiative in borrowing an animal from his neighbor. Then in the case of accidental injury, he must make good, the exception being if the owner himself were present to look out for his property. The latter stipulation implies that the injury was not from neglect and lay beyond the control of the borrower.” [Childs, 476] The last sentence indicates that if the animal had been rented for a fee the owner had already calculated the risk he was incurring and had provided for compensation in the fees he charged. He can’t ask for more. He can’t make a profit out of someone else’s misfortune (for the one who hired the animal has not got full value for the fees he paid, having lost the animal). Once again, additional penalties beyond the loss itself are not imposed when there is no fault and no responsibility.
We can ask and answer many questions about our contemporary legal system from these case laws. Is it right or wise to organize a system of punishment around imprisonment instead of restitution? Indeed, given the dehumanizing effects of time served in America’s prisons, it is worth asking again whether some form of slavery – such slavery as provided for in v. 3 and regulated in chapter 21 – wouldn’t provide more dignity and be more effective in dealing with crime. In our system restitution is largely made by insurance companies rather than the criminals themselves. Has this produced a more humane or a more just system of punishment for offenses and has it provided more fairly for the victims of crime? To ask these questions is to answer them.
Is it right for punishments to be imposed that vastly exceed any degree of restitution such as provided for in biblical law? Is it wise or right for people to hit the jackpot when they are the victim of some misdeed or crime, all the more when the money paid out to the victim ordinarily does not come from the people who actually committed the misdeed? Is it proof that we have become a more just society when the first thought that occurs to anyone after someone has been victimized is the likely size of the damages they will seek to recover? And has the legal profession become more ethical and more useful to society when its most successful members are those most skillful at cashing in on the huge awards awarded by juries? It is perfectly obvious that crime and punishment was never contemplated in Holy Scripture as a system by which opportunists might get very rich. The lex talionis works both ways and was always intended to work both ways: punishment must be adequate to the crime and must not exceed what is appropriate: eye for eye, hand for hand, tooth for tooth.
The legal and jurisprudential demoralization that is overtaking Western culture in our time – both in criminal law and civil law – certainly is a direct consequence of its being cut loose from the firm principles of justice set down in Holy Scripture and from its now being adrift on a sea of selfishness and jealousy and a sense of victimization. And when men are regularly destroyed by their punishment rather than reformed by it. Our system more and more acts as little more than a referee between competing interests, no longer as a dispenser of justice. Does anyone think that we are a more just society, that citizens live in greater safety, or that criminals are treated with proper firmness and respect under this new system?
But, of course, the question is not first or finally what we think about our criminal or civil justice system. The question is: what does God think about it? Not only is all of this case law a part of Yahweh’s covenant with his people, but as we are reminded in verses 8 and 11 of the paragraph we read tonight, all of this jurisprudence is conducted coram Deo. If the principles of justice that God has established are flaunted by human beings, what are we to expect will result from that?
Well, we are given a dramatic illustration of that in Holy Scripture itself. We are, of course, given many indications that God’s wrath will befall those who act unjustly and will befall nations who systematically do so. The prophets, as we pointed out last time, promise God’s wrath to nations that violate some of these very laws that we have been reading in Exodus 21 and 22. In Amos 1:6-10 and Joel 3:6, for example, we read of impending judgment upon the nations for the sin of kidnapping people and selling them into slavery, an act forbidden in 21:16. These are not laws for Israel only; they are a system of true justice to which all mankind is obliged. When these laws are violated – when the guilty are not punished, when the innocent are, when criminals are punished too severely or not severely enough, the Lord takes note of the wrongs done and, in his time, they must be answered for.
As I said, we are furnished a powerful reminder of this fact in the Bible. You remember how David committed adultery with Bathsheba and then arranged the murder of her husband to cover his original crime (adultery is a crime, not simply a sin in the Bible!). And you remember how the Lord’s prophet Nathan came to David and told him a story. All of this is recounted in 2 Samuel 12.
“There were two men in a certain town, one rich and the other poor. The rich man had a very large number of sheep and cattle, but the poor man had nothing except one little ewe lamb he had bought. He raised it, and it grew up with him and his children. It shared his food, drank from his cup and even slept in his arms. It was like a daughter to him. Now a traveler came to the rich man, but the rich man refrained from taking one of his own sheep or cattle to prepare a meal for the traveler who had come to him. Instead, he took the ewe lamb that belonged to the poor man and prepared it for the one who had come to him.” David burned with anger against the man and said to Nathan, “As surely as the Lord lives, the man who did this deserves to die. He must pay for that lamb four times over, because he did such a thing and had no pity.” Then Nathan said to David, “You are the man!”
Now what is significant about the particular details of Nathan’s story is the way it links up with the case law here in Exodus 22. Nathan used a story about a lamb on purpose in order to argue by analogy. David had stolen Uriah’s lamb, his wife Bathsheba. David, who had many wives, stole the wife of a man who had but one. According to the law, if a lamb was entrusted to a man and, through his negligence, the animal strayed and was lost, that man would have to restore a lamb to the owner. But, if a man stole a lamb and was caught with it alive in his possession – as we read in v.4 – he must pay back double. As he intended to defraud, he must himself be defrauded. He must not only restore, he must restore double and so suffer loss himself as punishment for his crime. Perfect justice is the idea in all these laws; a perfect balancing of the scales. If, however, the man who stole the lamb slaughters and eats it or sells it and so cannot return it, he must restore four lambs to the owner of the animal that was stolen to be sure both that the original owner is adequately compensated – there is, after all, no lamb to which to compare the animals provided for restitution – and that the man has been adequately punished for his crime. He took the crime beyond the original theft to the absolute loss of the animal and that crime requires a greater punishment. Again, perfect justice: both in terms of compensation and in terms of punishment.
David stole another man’s lamb and, in this case, the lamb could not be returned. Adultery had been committed, a pregnancy ensued, and murder followed to cover up the crime. The law now required of him the four-fold restoration or restitution of the wrong he did to Uriah in stealing first his wife and then his life. And pay the four-fold David would. He would lose violently four sons. He lost first the baby conceived in his adultery with Bathsheba. He then lost Amnon as his family began to come apart. He then lost Absalom, Amnon’s murderer, in the civil war as his kingdom began to come apart. And finally, he lost Adonijah, who having no respect for his father, sought to claim the kingdom for himself when he father became old and weak. It is no accident that David lost four sons in paying for his crime. It was the point that Nathan was making: David had broken the law and now would have to submit to the demands of perfect justice. Even for a believing man, even for a repentant man, as David was eventually, justice had to be served. And it was served. Sin pays a wage and God ensures the payment is demanded and met.
The great question in American jurisprudence, though it is debated nowadays only on the fringes of the legal system, is whether there is existing already some omnipresent and overarching law or whether the law is only what legislators and judges say it is. Do judges discover the law or do they make it. The reigning legal theory is the latter: the law is whatever we say it is and judges make it, they don’t discover what is already there. The old theory, the Christian theory of law is that there is always what has been called “the brooding omnipresence in the sky” of an absolute law that men do not make and cannot unmake; they can only discover it. [Antonin Scalia, review of Steven Smith, Law’s Quandry, in First Things, 157 (Nov. 2005) 37ff] But in defiance of the fact that so many theorists nowadays argue that law is sociology or simply the exercise of power, most people all of the time and all people some of the time accept that there is, in fact, an absolute standard of justice that men cannot change. They can meet it or fail to meet it, but they cannot change it into something else. People may be very selective in their application of this conviction, but that it exists and exists pervasively no one can deny.
Christians and other philosophers have never had any doubt where that “brooding omnipresent law” comes from. It is God’s law and it is implanted in human hearts and defy it as they may, they cannot escape its influence on their thinking and they most surely cannot escape its judgments. The Philistines learned that; Tyre and Sidon too. And America and Americans will all learn it in due time. Criminals will learn it; lawyers will learn it; corporations will learn it; and our culture and our society will learn it. We can no more escape the demands of these laws, this brooding omnipresent Law, than we can escape the law of gravity.
We are, therefore, not talking about just lambs and oxen when we read Exodus 22. We are being given a window upon that world of justice that God creates and into which he will finally bring every human being. The world may pursue other systems of crime and punishment, but it will, at last, be judged according to this system. Individuals will and nations will. That is a fact of immeasurable importance. It should be a foundation of our social theory, and to the extent that it is not, that social theory will lead our nation and our society ever deeper into a rebellion against God and a betrayal of true justice for which punishment must come, punishment such as is illustrated in David’s doleful and miserable later life.
Now we have an initiative before us at this next election that concerns issues of irresponsibility, accountability, punishment and restitution. I am speaking of Initiatives 330 and 336. I will not tell you how I think you ought to vote. But I will say this. Here you have proposed laws that bear on the very principles of justice that are enunciated in Exodus chapter 21 and 22. There stands above and behind whatever is enacted by the electorate the brooding and omnipresent Law of God which it is ours to discover and to replicate as much as possible in our enactments and our judicial decisions. You may be an American but will not be a faithful Christian when you vote on those initiatives if you do not vote with the intention of upholding these ultimate principles of divine law and divine justice. It is as surely a Christian act to vote these principles as it is to read your Bible and pray. For what purpose did God reveal the standards of his justice to his people if he did not want them first to live by them themselves and then to represent them to the world as those eternal and unchanging principles of justice by which God will hold all men to account.