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An Emerging Account of Biblical Law: Common-Law Tradition in the Old and New Testaments

Authors:
  • McMaster Divinity College, Canada, Hamilton

Abstract

This paper will examine recent scholarship on the topic of biblical law in order to demonstrate that biblical law is best understood as a common-law tradition. After outlining long-standing questions in regard to the nature of law in the Hebrew Bible, I will argue for a complementarian rather than supersessionist view of law, following the work of Berman. The complementarian perspective entails a common-law account of the nature of the law tradition as opposed to the ubiquitous and presupposed statutory view. I will then further develop Berman’s argument by appealing to Jackson’s semiotic hermeneutic for interpreting biblical law. As supporting evidence, I will examine several biblical texts where scholars have demonstrated the explanatory power of non-statutory interpretation. To flesh out the implications of the common law approach, I will discuss the pivotal role of judges using distinctions described by Reaume. Finally, I will provide evidence for the claim that this common-law view is applicable not only to the Hebrew Bible but also to the New Testament. These texts and scholarly viewpoints together provide compelling evidence that the biblical law tradition is a common-law tradition that operates not by the force of codified legislation but rather through the agency of judges shaped by the values of the tradition that is maintained in both major corpora of biblical texts.
[MJTM 18 (2016–2017) 160–92]
A
N
E
MERGING
A
CCOUNT OF
B
IBLICAL
L
AW
:
C
OMMON
-L
AW
T
RADITION IN THE
O
LD AND
N
EW
T
ESTAMENTS
Ryder Wishart
McMaster Divinity College, Hamilton, ON, Canada
Introduction
This paper will examine recent scholarship on the topic of bib-
lical law in order to demonstrate that biblical law is best under-
stood as a common-law tradition. After outlining long-standing
questions in regard to the nature of law in the Hebrew Bible, I
will argue for a complementarian rather than supersessionist
view of law, following the work of Berman. The complemen-
tarian perspective entails a common-law account of the nature of
the law tradition as opposed to the ubiquitous and presupposed
statutory view. I will then further develop Berman’s argument by
appealing to Jackson’s semiotic hermeneutic for interpreting bib-
lical law. As supporting evidence, I will examine several biblical
texts where scholars have demonstrated the explanatory power of
non-statutory interpretation. To flesh out the implications of the
common law approach, I will discuss the pivotal role of judges
using distinctions described by Reaume. Finally, I will provide
evidence for the claim that this common-law view is applicable
not only to the Hebrew Bible but also to the New Testament.
These texts and scholarly viewpoints together provide compell-
ing evidence that the biblical law tradition is a common-law tra-
dition that operates not by the force of codified legislation but
rather through the agency of judges shaped by the values of the
tradition that is maintained in both major corpora of biblical
texts.
W
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An Emerging Account of Biblical Law
161
The Nature of Biblical Law
When it comes to biblical law, there are various views, not only
on the nature of the texts involved—that is, what is biblical
law?—but also on the interrelationships among these texts that
compose the Pentateuch. According to Wells,
The term “biblical law” is usually understood to mean the set of rules
found in the texts of the Pentateuch that contain what appear to be
legal provisions. The texts include the Book of the Covenant or
Covenant Code (Exodus 21–23), the Priestly Code (found in parts of
Exodus, 1–16, and in parts of Numbers), the Holiness Code (mainly
in Lev 17–26), and the Deuteronomic Code (Deut 12–26).
1
Wells describes five main views on the nature of the texts: (1)
the codes constituted authoritative law, containing no contradic-
tions and mediated to the Israelites by Moses in the Late Bronze
Age. This view is generally held by religiously conservative
scholars. A variant on this view is that all of the texts were com-
piled during the Persian period, at which time the codes became
authoritative. (2) The codes are “competing sets of more or less
authoritative law.”
2
Later codes reinterpreted or superseded the
earlier ones, and the codes, while not authoritative at first, may
have been written in the hope that they would achieve the status
of normative law among the scribes and priests. (3) The law
codes were a set of theoretical exercises produced by scribes,
“lists, motivated by academic interests and essentially unrelated
to the world of practiced law.”
3
(4) A variant of the previous
view, the legal codes are viewed as descriptions of actual legal
situations that occurred or seemed likely to occur, which the
scribes and/or priests sought to treat consistently with known
law. Or finally, (5) while the codes arose out of a scribal context,
they are “essentially nonlegal in nature.”
4
Some scholars claim
1. Wells, “Biblical Law: Hebrew Bible,” 39. Cf. Berman,
“Supersessionist or Complementary?” 201; Morrow, Introduction to Biblical
Law, 14–32.
2. Wells, “Biblical Law: Hebrew Bible,” 42.
3. Ibid., 42.
4. Ibid., 43.
McMaster Journal of Theology and Ministry 18
162
that these nonlegal codes were intended to provide moral and
religious advice, while others claim the codes were intended to
foster anti-imperial sentiments.
Apart from the fact that all have been collected into the Penta-
teuch, though, the connections between these corpora are uncer-
tain. Regarding the similarity of legal codes in the ancient Near
East, Wells notes three prominent views: (1) all of the codes
underwent similar stages of evolutionary development, and
similarities in content reflect similar stages common to different
codes; (2) similarities are the result of literary dependence; and
(3) similarities are due to a common tradition. On this third view,
the spread of writing throughout the Near East created a path for
the diffusion of an intellectual tradition that led to a “common
legal culture throughout the region.”
5
The problem, in short,
involves questions of continuity and discontinuity: the continuity
between legal corpora consists of citations and references by a
later corpus to a previous corpus, as well as the ultimate combi-
nation of these texts into the canonical Pentateuch; the disconti-
nuity consists of additions and omissions by later corpora.
6
Next, I will argue a particular construal of the nature of the
biblical law tradition in dialogue with two key scholars in the
field of biblical law. First, I review the distinction Joshua
Berman has outlined between supersessionist and complemen-
tarian views of biblical law. Second, I will describe how Bernard
Jackson’s semiotic hermeneutic fits a complementarian view.
Third, I will illustrate the discussion up until this point with two
biblical examples, and then finally I will outline the role of
judges in this complementarian view of biblical law.
Supersessionist and Complementarian Views of Biblical Law
As Berman explains, there are two major views on the evolution
of these biblical law corpora, which he labels the supersessionist
5. Ibid., 48.
6. As well as legal contradictions, different sources are claimed to be
evidenced by anachronism, shifting use of divine names, duplicate narratives,
and shifts in style or vocabulary. See Baker, “Source Criticism,” 801–4.
W
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An Emerging Account of Biblical Law
163
and the complementarian positions.
7
The supersessionist view
assumes that the law codes are mutually exclusive. He argues
that this view has not been able to account for the coexistence of
these divergent traditions both within the Pentateuch and in later
use of these texts. The complementarian view, by contrast,
avoids the problem entirely by setting aside the modern statuto-
ry, legislative conception of law in favour of a common-law
view that more closely corresponds to the ancient Israelite legal
tradition. Berman further claims that there are five interconnect-
ed questions that can be used to evaluate these two camps: (1)
How can we account for both the continuity and the discontinu-
ity between the corpora in one coherent system?; (2) how does
the final redaction of the texts into one collection, the Penta-
teuch, relate to the earlier stage of separate documents?; (3) why
do later texts cite freely from multiple legal corpora?; (4) what is
our model for understanding legal texts, and how does the use of
anachronistic legal models skew our understanding of these
texts?; and finally, (5) how can we explain the inter-referencing
between different corpora?
8
In regard to these five questions, the supersessionist account
falls short. First, the supersessionist account does not coherently
handle both the continuity and the discontinuity between the cor-
pora. This camp, claims Berman, sees the later texts as attempts
to subvert and supersede the earlier texts. This view claims, on
the one hand, that the continuity between legal corpora can be
explained as attempts to commandeer the authority of the pre-
vious, revered texts. Often these new “legislators,” as they are
understood, are said to garb their “subversive innovation in the
mantle of the texts that they abrogate,” explains Berman. They
7. Here I primarily draw on articles published by Berman (i.e. Berman,
“Supersessionist or Complementary?” 201–22; Berman, “Law Code as Plot
Template,” 337–49; Berman, “Legal Blend in Biblical Narrative,” 105–25;
Berman, “History of Legal Theory,” 19–39; Berman, “Histories Twice Told,”
229–50; Berman, “Legal Structure,” 22–38) which have also been incorporated
into Berman, Inconsistency in the Torah.
8. Berman, “Supersessionist or Complementary?” 202–3. Cf. Berman,
Inconsistency in the Torah, 173–74.
McMaster Journal of Theology and Ministry 18
164
“[seek] to benefit from the prestige of the earlier source.”
9
Yet
scholars who make these claims, such as Jeffrey Stackert and
Bernard Levinson, are forced to also assert that the Deuterono-
mic author did not intend for his audience to check his sources.
10
Second, the supersessionist view does not offer the most plau-
sible account of the Pentateuch. There are two attempts to
explain the ultimate redaction that brought these legal corpora
together into one collection, explains Berman. Some view the
Pentateuch as a “compromise document,” where “external pres-
sure compelled competing factions within Israel to come togeth-
er around its varying and competing traditions to produce a sin-
gle document for the whole community.”
11
But how, asks
Berman, does the retention of mutually exclusive traditions con-
stitute a compromise? Others claim the Pentateuch is a literary
collection of systems that were thought to be equally legitimate.
Berman points out, though, that the Pentateuch does not bear the
marks of an anthology. The various corpora, rather, “are worked
into an overall narrative of Israel’s founding and early history.”
12
Such an anthology, I would point out, is something an outsider, a
non-participant collects; it is not the kind of collection factious
rivals would produce.
Third, the supersessionist view cannot explain the use of
these corpora throughout the rest of the Hebrew Bible. “What is
striking,” claims Berman, “is the degree to which these suppos-
edly inimical traditions exist side by side elsewhere in the He-
brew Bible. There is not a single book of the Bible that may be
termed a pure ‘Deuteronomic school’ book, or ‘Holiness school’
book.”
13
Ezekiel draws on the Priestly tradition alongside of the
Deuteronomy; Jeremiah draws mainly on Deuteronomy, but ne-
vertheless references so-called Priestly material. “Many biblical
authors,” Berman explains, “deliberately sought to weave
9. Berman, “Supersessionist or Complementary?” 206.
10. Cf. Stackert, Rewriting the Torah; Levinson, Hermeneutics of Legal
Innovation.
11. Berman, “Supersessionist or Complementary?” 216. Cf. Berman,
Inconsistency in the Torah, 184.
12. Berman, “Supersessionist or Complementary?” 217.
13. Ibid., 212.
W
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An Emerging Account of Biblical Law
165
together supposedly contradictory iterations of the very same law
reiterated and revised in the various Pentateuchal law corpora.”
14
1 Samuel 15:2, as just one example, invokes both Exod 17:14–16
and Deut 25:17–19 in describing Saul’s campaign against
Amalek. The law corpora are attributed to subversive legal
schools, but Berman points out that any signs of a “fight for su-
premacy” among the various legal schools is “utterly absent
from the extensive record of extra-pentateuchal biblical
books.”
15
Contrary, then, to the claims of the supersessionist tra-
dition, Berman explains that “in wholesale fashion biblical
authors felt free to draw from the various legal traditions in the
composition of a text. They did not view the various corpora as
inimical to one another but rather as complementary.”
16
Fourth, the supersessionist position relies on a statutory mod-
el of law, and thus imposes an anachronistic framework upon the
Pentateuch, as if the Pentateuch were an internally inconsistent
modern tax law. I will address this issue further below. However,
fifth and finally, this camp does not offer a plausible explanation
for Deuteronomy’s references to the Covenant Code in Deut
12:21; 18:2; 24:8. These references to the authority of the Cove-
nant Code cannot imply subversion on the part of the Deuterono-
mic author. One possible explanation is that the editor attempts
to bolster the authority of the later text by demonstrating its con-
sistency with the earlier text in a “rhetorical flourish” that brings
both corpora together into one. As Berman puts it, “It is unclear
however, why audiences would find this rhetorical flourish a
compelling reason to discard the earlier text [in favour of the
latter].”
17
By contrast, the complementarian perspective does not find
either the continuity or the discontinuity between legal corpora
problematic. On this view, later legal texts constituted re-appli-
cations of the earlier texts to meet new challenges in a new
context. This view corresponds to a common-law model of
14. Ibid., 213.
15. Ibid., 214.
16. Ibid., 215.
17. Ibid., 221.
McMaster Journal of Theology and Ministry 18
166
law.
18
Berman explains that on this view, “Law organically
changes over time in response to need and circumstance. Thus,
even if a norm is expressed differently in one age than in a
previous one, this is not seen as inconsistent or contradictory.”
19
While a statutory system requires that law be circumscribed by a
written legal code, a common law is coextensive with the ongo-
ing judgements of the judges who decide the hard cases of
application. “Judges,” explains Berman, “address new needs and
circumstances by reworking old laws, old decisions, old ideas.
Texts form a system of reasoning.”
20
Thus, judges play an im-
portant role in engaging and propagating a common-law tradition
through rendering decisions on new cases in light of the tradi-
tion. I will engage more fully with the role of the legal corpora in
forming a system of reasoning below.
This complementarian view, argues Berman, offers a
reasonable account of both the continuity and discontinuity bet-
ween the legal corpora, since new contexts demanded new rea-
soning about the legal tradition. This view also accounts for the
final redaction of these corpora into one collection. The Penta-
teuch is, after all, an anthology, but it is an anthology of judge-
ments and precedents, not legislation.
21
This view finds it un-
problematic when later texts make reference to the numerous
stages in the tradition’s historical development, because the legal
corpora together constitute a system of reasoning. Deutero-
nomy’s references to the authority of the Covenant Code, on this
view, should be expected, just as Jesus’s and Paul’s references to
the authority of the Torah should also be expected. The narrative
18. This model is not anachronistic in the same way as the statutory
model, as Berman (“History of Legal Theory,” 19–39) argues, precisely
because it provides a good fit for the data, while the statutory model does not.
While there are no doubt counterexamples that might be furnished in support of
a statutory view, a common-law model can account for all of the data
coherently, whereas the statutory model can only account for some of the
data—namely places where a later text seems to advocate a direct application
of a former law’s semantic content (itself a complex issue).
19. Berman, “Supersessionist or Complementary?” 222.
20. Ibid., 207. Cf. Berman, “History of Legal Theory,” 22.
21. Berman, “Supersessionist or Complementary?” 208–9.
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An Emerging Account of Biblical Law
167
and non-narrative portions alike constituted “the resources from
which future norms could be worked out . . . the key was not the
unchanging identity of [the text’s] components but a steady con-
tinuity with the past.”
22
Ultimately, Berman envisions a different
kind of evolution within the biblical law tradition:
The laws of the great kings of the ancient world were never con-
sidered immutable statutory law, and the same was true of God’s law.
The prescriptions in the various corpora are data from which to rea-
son. Indeed, as authors revised the collections, they certainly intended
to invalidate former normative practices. But that did not entail a re-
jection of the authority of that text. Rather the earlier prescription was
seen to be fulfilled through its reapplication to meet a new challenge.
This, for complementarians, is the reason that lemmatic citation and
expansion are so ubiquitous throughout this legal literature. A revised
legal text is a new formulation and new application of an old, revered
norm.
23
Statutory law demands a hermeneutic sometimes described as
“strict construction.” That is, “Statutory jurisprudence mandates
that judges adhere to the exact words of the code because the
code by definition is autonomous and exhaustive.”
24
According
to Berman, strict construction as the lens for interpreting biblical
law is the cornerstone of the supersessionist view. However, if
the statutory view constitutes an anachronistic imposition on the
biblical law tradition, the hermeneutic of strict construction is
also suspect. Is there another way to interpret biblical law that
comports well with a common-law model? What is needed, in
some sense, is a hermeneutic that enables us to examine the val-
ues that underlie the specific laws.
Jackson’s Semiotic Hermeneutic for Interpreting Biblical Law
Bernard Jackson develops just such a hermeneutic. In 1990,
Jackson argued for a structuralist view of biblical law. He says,
22. Ibid., 210.
23. Ibid., 211.
24. Ibid., 210.
McMaster Journal of Theology and Ministry 18
168
There are two ways in which one can look at legal systems. One,
which is endorsed by a crude form of legal informatics, would see the
legal system as no more than an accumulation of rules, the statute
book being a reference book like a telephone directory where all one
does is to look at the particular entry in which one is interested, re-
garding that as an isolated and self-sufficient unit. Some forms of
positivism endorse this approach, even if they recognize the systemic
characteristics of the law through rules of priority designed to
eliminate contradictions (like the lex posterior rule). But there is a
second approach, increasingly gaining momentum, inspired in part by
structuralism. Here, one looks at the substantive interrelationships of
rules, not merely at the level of their explicit statement and ration-
alization, but also at a deeper level, of which the authors may not
necessarily be conscious . . . Indeed, the idea that there is more than
one level of meaning to be attached to legal rules—even to the mun-
dane rules of civil code—is a very old one . . . What goes into the
deep structure of legal doctrine is none other than the unstated, im-
plicit, but (by that very reason) basic, social evaluations of a parti-
cular society at a particular time.
25
While the idea of a “deep structure” functioning beneath the
surface of a legal system raises its own set of issues (How is it
identified? In what sense is it universally accessible?), Jackson’s
grammatical perspective on law provides a mode for discussion
of the ongoing significance of the biblical law tradition. At the
heart of his argument lies the idea that biblical law ought to be
viewed as a common law—not, as on a statutory view, a set of
codes that circumscribes the entirety of the legal system. As
Jackson argues, examining “the substantive interrelationships of
rules” amounts to analyzing the grammar of the law, to deter-
mine what sort of system of rationality is inherent in the law.
What Jackson thus describes as the “deep structure of legal
doctrine” is a grammar of values, or as he says, “implicit . . .
social evaluations of a particular society at a particular time.” In
other words, Jackson argues that historically-contingent social
evaluations underlie all legal formulations in the biblical law
tradition.
25. Jackson, “Legalism and Spirituality,” 260–61.
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An Emerging Account of Biblical Law
169
More recently, Jackson has explained further that there are
basically two ways to understand values in biblical law: either as
postulates or semiotic narrative connotations.
26
The first view is
evidenced in Moshe Greenberg’s article, “Some Postulates of
Biblical Criminal Law.”
27
Greenberg argues that underlying bib-
lical criminal law is the following postulate: life and property are
incommensurable. To see the values of biblical law as a set of
postulates underlying the laws, Jackson points out, the sources
must be engaged synchronically. The values themselves are con-
sidered to be universal values inferred from the laws as abstrac-
tions. Jackson argues that this approach does not deal with the
evolution in biblical legal corpora, since Greenberg attempts to
treat his sources synchronically. As a result, Greenberg’s study
does not deal with legal texts that would seem to contradict his
postulate.
28
For analysis of the values of biblical law, Jackson advocates a
semiotic approach.
29
He proposes a diachronic, non-synthetic
interaction with the sources, a view of values not as inferred ab-
stractions but as historically contingent connotations of narrative
images, and identification of the institutional contexts that are
assumed in the texts as opposed to the contexts we are faced with
today. Greenberg’s postulates, in theory, can be directly applied
to any context, since they comprise universal values. Jackson’s
semiotic connotations, by contrast, are historically contingent,
and require recontextualization when being applied to a new
situation.
Jackson’s semiotic approach examines three planes of mean-
ing-making for laws which I will elaborate on:
1. Sense construction (either literal or narratival)
2. Literary arrangement (either motive clauses only or thematic
arrangement as well)
26. Jackson, “Values of Biblical Law,” 602–18.
27. Greenberg, “Postulates,” 5–28.
28. For discussion, see Jackson, “Values of Biblical Law,” 604–6.
29. Cf. Jackson, Semiotics of Biblical Law; Jackson, Semiotics and Legal
Theory; Jackson, “Legalism and Spirituality,” 243–61.
McMaster Journal of Theology and Ministry 18
170
3. Pragmatic context (either modern “legal” or wisdom laws)
For each level of meaning-making, we can note that law can
be understood as a common law or as a statutory law. When it
comes to sense construction, the law can be read either literally
or narratively. “A ‘literal’ approach to interpretation (and cer-
tainly a modern ‘statutory’ approach),” explains Jackson, “would
at least begin with the assumption that general terms bear their
full meaning unless exceptions are specifically stated.”
30
The al-
ternative that Jackson advocates is a narrative reading. “A nar-
rative approach,” he says, “would ask not what range of cases
the language ‘covered,’ but rather what typical images it evoked.
The more distant the situation in hand [is] from that typical im-
age, the less the language would be regarded as applicable to the
situation.”
31
For example, the “eye-for-an-eye” law, when read
literally, becomes nonsensical in the case of a one-eyed assailant.
However, no one would consider this case typical, and thus a
more “plain” or “obvious” meaning was sought in place of the
literal.
Second, the modes of expressing the values of the text can be
sought in motive clauses—explicit language describing the pur-
pose of a law. However, Jackson’s semiotic reading advocates
consideration also of literary devices and thematic arrangement.
The example of Ruth discussed below illustrates this interpretive
strategy.
Third, the legal and institutional pragmatic contexts which are
assumed by these texts must be considered, especially as they
contrast the contexts facing interpreters of those laws today. Fun-
damentally, this means that characterizing biblical law as a codi-
fied collection of laws is a modern imposition. As Berman ex-
plains, “the association of ‘law’ with written, codified law is an
anachronistic imposition of our own culture.”
32
However, this
point is likely to cause some confusion, for no other reason than
that our modern conception of law is so pervasive, and tends to
30. Jackson, “Values of Biblical Law,” 607.
31. Ibid., 607.
32. Berman, “Supersessionist or Complementary?” 208.
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An Emerging Account of Biblical Law
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be imported into every biblical term that we translate as “law”
(such as νόµος or הרות). Jackson’s claim is confirmed by
Berman, who notes the notion of “customary law” (i.e. common
law) more accurately approximates the ancient conception. With-
in the domain of customary law,
A judge would determine the law at the moment of adjudication by
drawing on an extensive reservoir of custom and accepted norms. It
would continually vary from locale to locale. One could not point to
an accepted text of the law . . . as the final word on what the law was
or prescriptively should be.
33
In biblical law, Jackson furthermore claims, the institutional
context actually aimed at minimizing the need for third-party
adjudication. Wherever such adjudication was necessary, it
would have been sought not from a textual expert or lawyer, but
rather from a divinely guided, charismatic authority.
34
Summarizing Jackson’s semiotic view, values should be
understood as semiotic connotations that constitute a grammar of
law. Laws are evocative of typical cases, not propositions that
apply only to those cases explicitly “covered” by the semantic
content of the law. Also, the institutional context of biblical law
is not statutory law, with a codified text, but wisdom law within
particular communities, with an anthology of judgements provid-
ing a resource for reasoning according to the law.
35
Ultimately,
the common-law model, interpreted narratively and literarily as
part of a customary law tradition provides a better fit for biblical
law than the statutory model implicitly anchoring supersessionist
views of biblical law.
33. Ibid., 208.
34. Jackson, “Values of Biblical Law,” 610. Cf. 615 n. 55.
35. Another possible institutional context was mentioned above: the law
codes may comprise “scholarly treatises meant primarily for training scribes in
legal reasoning,” or perhaps they are “forms of royal propaganda intended to
enhance the reputation of a king” (Morrow, Introduction to Biblical Law, 38).
However, Morrow (Introduction to Biblical Law, 39) notes that although “some
biblical law seems to exist more in the area of theory than practicality,” and
“the collections of biblical law have their own propaganda value,” nevertheless
“It would be surprising if there were no connection between the collections of
biblical law and ancient Israelite legal practices.”
McMaster Journal of Theology and Ministry 18
172
Examples of Non-Statutory Interpretation in the Bible
Three biblical examples will serve to illustrate the argument so
far. First, consider Solomon. When challenged to render a just
verdict about whom the living infant belonged to in 1 Kgs 3:16–
28, he did not consult the book of the law, but rather formulated
a wise judgement that addressed the needs of the particular situa-
tion. His pronouncement did not justify itself by referencing
codified law; rather his pronouncement enacted the law. His
notions of wisdom and justice were shaped by the law tradition,
but he was not obligated to fit the current problem within the se-
mantic bounds of previous legislation. The decision went beyond
codified law because the problem and its circumstances fell out-
side the bounds of codified law.
A second example is from the book of Ruth. Berman argues
in a 2007 article that Ruth is a homily unfolding according to the
order of legal materials in Deut 24:16—25:10.
36
Ancient legal
material, unlike modern, argues Berman, was typically not or-
ganized topically, but rather through association of word, theme,
or motif, with a broader, thematic meaning arising from this
literary structuring. The arrangement of laws in this section of
Deuteronomy, he argues further, indicates the laws had a theme,
a larger unit of meaning that is not readily apparent when the
laws are taken in isolation. The author of Ruth reads these laws
associatively. Associative reading corresponds to Jackson’s se-
miotic reading, in that values can be expressed by various modes
of textual meaning, including thematic arrangement. An associ-
ative reading of these laws, Berman argues, allows the broader
theme of dignifying justice for the widow and orphan to become
apparent. He argues that the plotline of Ruth is derived from the
order of laws in this thematic unit of Deuteronomy as follows:
37
36. Berman, “Legal Structure,” 22–38.
37. All biblical quotations are from the New American Standard Bible
(which orthographically represents Old Testament quotations in the New
Testament using small capitals).
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An Emerging Account of Biblical Law
173
Law in Deuteronomy Narrative Sequence in Ruth
16 Fathers shall not be put to
death for their sons, nor shall
sons be put to death for their
fathers; everyone shall be put to
death for his own sin.
Elimelech, Mahlon, and
Chilion all die at the outset of
the story, arguably due to
divine judgement.
38
17 You shall not pervert the
justice due an alien or an orphan,
nor take a widow’s garment in
pledge. 18 But you shall
remember that you were a slave
in Egypt, and that the Lord your
God redeemed you from there;
therefore I am commanding you
to do this thing.
Ruth and Naomi are both
widows, and Ruth is
described like an orphan
when she leaves her father
and mother’s land, to a land
where she is also a stranger.
19 When you reap your harvest
in your field and have forgotten a
sheaf in the field, you shall not
go back to get it; it shall be for
the alien, for the orphan, and for
the widow, in order that the Lord
your God may bless you in all the
work of your hands.
Ruth not only gleans from the
stalks the reapers have gone
over, but she also references
sheaves herself (Ruth 2:7),
and Boaz commands his
reapers to leave some stalks
for her to gather.
20 When you beat your olive
tree, you shall not go over the
boughs again; it shall be for the
alien, for the orphan, and for the
widow.
21 When you gather the grapes
of your vineyard, you shall not
go over it again; it shall be for
the alien, for the orphan, and for
the widow. 22 You shall
remember that you were a slave
in the land of Egypt; therefore I
The field laws at the
beginning of the section in
Deuteronomy 24 point to the
preservation of the dignity of
the poor—who are enabled to
likewise work for their food
in some sense. These laws
have been traced throughout
Ruth so far. Similarly, the
laws about not beating a
deserving man more than
forty times is for the purpose
38. Considering Naomi attributes her distress to Yahweh (Ruth 1:20–21).
Cf. Berman, “Legal Structure,” 28.
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am commanding you to do this
thing.
25:1 If there is a dispute between
men and they go to court, and the
judges decide their case, and they
justify the righteous and
condemn the wicked, 2 then it
shall be if the wicked man
deserves to be beaten, the judge
shall then make him lie down and
be beaten in his presence with the
number of stripes according to
his guilt. 3 He may beat him
forty times but no more, so that
he does not beat him with many
more stripes than these and your
brother is not degraded in your
eyes.
of not degrading him.
Boaz commands his young
men not to degrade or harass
Ruth in the field (Ruth 2:15).
4 You shall not muzzle the ox
while he is threshing.
Ruth is found by Boaz within
intimate distance at night, but
he is nevertheless restrained
from having her, even in
marriage, because of the
kinsman redeemer.
39
5–10 When brothers live together Ruth is redeemed by Boaz
39. Berman admits that this connection is the most tenuous part of his
argument, but goes to great length to demonstrate that it is not an implausible
connection, especially in light of the connection drawn in b. Yebamot 4a
between a widow who is not to be restrained from remarrying and fulfilling her
sexual desire and Deut 25:4 (“do not muzzle the ox”). This connection is justi-
fied on the basis of the next verse, Deut 25:5 (“When brothers dwell together
and one of them dies and leaves no son . . .”). As Berman (“Legal Structure,”
36) explains, “we have before us a source [here he references the connection
between vv. 4 and 5 made in the Talmud] that suggests that perhaps already
from an earlier era the injunction against muzzling an ox had been understood
as bearing sexual connotation, and from an early era the verse had been read to-
gether with the laws of levirate marriage through the exploitation of associative
links and the possible meanings that emerge from them.” It is worth noting that
the remarkable correspondence to each of the other verses in the Deuteronomy
passage is itself evidence in support of his reading.
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and one of them dies and has no
son, the wife of the deceased
shall not be married outside the
family to a strange man. Her
husband’s brother shall go in to
her and take her to himself as
wife and perform the duty of a
husband’s brother to her . . .
according to the laws of
levirate marriage described in
the final section of the
passage in Deuteronomy 25.
In light of this sequential correspondence, Berman therefore
argues that an “associative” reading of the law is undertaken in
the book of Ruth. This interpretation supports Jackson’s claim
that the literary arrangement of laws needs to be considered in
order to recognize the tacit social evaluations—the values—that
motivate the laws.
One final biblical example, food laws in Lev 11:3–23 and
Deut 14:3–20, will serve not only to illustrate Jackson’s semiotic
hermeneutic, but also the “grammar-constructing” function of
law.
40
Burnside advocates Jackson’s narrative approach to bib-
lical law as opposed to a literal one. He demonstrates that bib-
lical food laws serve to establish a paradigm—not simply cate-
gories—of clean and unclean. This paradigm uses typical or
paradigmatic cases to impart a complex body of knowledge in a
practical way, much like wisdom literature. The laws build on
one another so that less and less information is required to under-
stand the application of cleanness and uncleanness to new do-
mains. The land animals, in other words, are described in detail,
with analytic criteria used to set up a positive picture (cleaving
the hoof and chewing the cud), which is then negated in the case
of uncleanness using hard cases such as camels and swine, who
fulfill only one of the two criteria. Aquatic life also is described
with analytic criteria (fins and scales), but no hard cases are ne-
cessary, because the listener/reader knows that both criteria must
be fulfilled. Birds are only described through negative examples.
Burnside argues that this list is meant to establish a typical image
of the unclean bird as one that eats what humans eat (fish and
40. Burnside, “At Wisdom’s Table,” 223–45.
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animals), which implies the opposite is the case with clean birds
—they eat what humans do not eat.
41
Rather than being a closed
list of unclean birds, as is typically assumed, the implicit para-
digm allows one to evaluate birds not mentioned on the basis of
how closely they fit the typical image of an unclean bird. Thus,
the paradigm of clean and unclean birds is more like a rule of
thumb than a casuistic list of arbitrary rules. According to
Burnside, “the list exists because there is a paradigm.”
42
By the
time the author reaches the final case, insects, the positive criter-
ion only is listed (insects that walk on all fours [sixes?] are un-
clean). However, because the implicit paradigm of clean and
unclean has been developed enough, the audience is apparently
able to handle an exception for leaping insects with segmented
legs.
What Burnside demonstrates is that laws can not only evoke
typical cases—in agreement with Jackson—but move beyond
that to constructing paradigms, or means of reasoning about
choices. The textual organization of the food laws offers a clear
example of how less information is required as the paradigm
comes together, because the laws constitute a way of reasoning
about food.
43
Who, then, engaged in this process of reasoning?
For Burnside the paradigm was especially useful for resolution
of dispute between non-judicial agents (the paradigm providing
the means of discerning like a judge would). Because these para-
digms would have been useful for everyone, it is all the more
important to consider the way the law functioned as a system of
reasoning for judges—third party agents in disputes.
41. Ibid., 232–33.
42. Ibid., 233.
43. One doubts whether the goal of these laws, as Burnside claims, is
indeed nutritional education. While this claim no doubt reflects an attempt to
recontextualize the food laws for modern society by outlining their social
utility, why wouldn’t the text have included laws about clean and unclean
plants? I suspect that there are sociological issues at play here regarding the
construction of group identity. Nevertheless, the mechanism of paradigm
construction that Burnside describes is a valuable contribution.
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The Role of Judges
The nature of the legal tradition in the Hebrew Bible offers in-
sight into the way the tradition likely functioned within the com-
munities that preserved and revered the textual witness to that
tradition. If the tradition more closely resembled a common law
than a statutory model, then judgments were not lawful because
they applied the law, but rather, because they enacted the law.
According to Jackson, “the conventional view that judges
exist to apply general rules laid down by higher authority—whe-
ther by the legislature or by superior courts in a system of prece-
dents—is no more than a culturally contingent claim that has
become typical of the Western conception of law.”
44
Jackson
also advocates the more specific historical argument advanced
by Berman that a statutory view of law “was not the dominant
conception of the relationship between legislator and judge in the
Bible and early Judaism.”
45
Judges, he argues, did not have the
role of applying Torah, and certainly not of appealing to an au-
thoritative written code in the pre-exilic period.
46
Judges were
instead to be guided by the “norms of practical wisdom.”
47
Else-
where, he describes how judgement was “for the most part (pro-
bably until the time of Ezra) not based on application of written
texts, but rather on a sense of divinely-guided intuitions of jus-
tice.”
48
Consider the example of Moses in Exod 18:17–27. His father-
in-law Jethro tells him that he is taking on too much by attempt-
ing to adjudicate all disputes personally. Instead, Jethro advises
the following:
44. Jackson, “Legalism and Spirituality,” 244.
45. Ibid., 244.
46. Ibid., 244–45.
47. Ibid., 245. Cf. 2 Chron 19, where Jehoshaphat appoints judges to go
throughout the land, but instructs them only to be impartial and fear Yahweh,
as opposed to 2 Chron 17, where people are sent throughout the land, and they
take the book of the law of the Lord with them. However, in the latter case they
do not judge, but teach. Cf. Fitzpatrick-McKinley, Transformation of Torah,
144, 87. Jackson elsewhere offers a sustained discussion of the concept of
‘wisdom-laws’ (Semiotics of Biblical Law, 70–92).
48. Jackson, “Values of Biblical Law,” 610.
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19 . . . You be the people’s representative before God, and you bring
the disputes to God, 20 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. 21 Furthermore, you shall select out of all the people
able men who fear God, men of truth, those who hate dishonest gain;
and you shall place these over them as leaders of thousands, of
hundreds, of fifties and of tens. 22 Let them judge the people at all
times; and let it be that every major dispute they will bring to you,
but every minor dispute they themselves will judge. So it will be
easier for you, and they will bear the burden with you.
In this example, Moses represents the people to God. His
judgement, in return, represents God’s judgement. However,
Jethro claims that it is not necessary for Moses to judge in each
case; rather, Moses should teach the people the laws, with the
aim that the laws would “make known to [the people] the way in
which they are to walk and the work they are to do.” The func-
tion of the law in this case was to minimize the need for adjudi-
cation. However, Jethro also advised Moses to delegate his
adjudicating task even further. Ideally each person would be able
to determine the right course of action on their own. However, in
case of disputes judges would be sought. These judges, however,
cannot simply be meant to have recourse directly to the laws
since judgement was required when the laws—which were
directed at the entire assembly—failed to address a new chal-
lenge. In such a case, the judges were to be truthful, fearing God
and rejecting bribes. Their qualifications were not their exactness
in applying a written code, but rather their ability to emulate key
values of God’s law.
Not only was this the case with ancient Israelite law, how-
ever, but also with Mesopotamian law.
49
The Code of Ham-
murabi, for example, was meant to be a monument rather than a
widely available legal code, Jackson argues, for “There can be
no widespread dissemination of laws in the medium of large,
engraved stelae. Such stelae have a quite different purpose, they
49. Cf. Taylor, “Form Criticism,” 339. Fitzpatrick-McKinley
(Transformation of Torah, 118–19) argues for a “common Ancient Near
Eastern wisdom-moral tradition.”
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are public monuments.”
50
The Torah’s function, he continues,
was not to provide “statutory rules” for judges to apply (consis-
tent with the entirety of the biblical law tradition, as argued a-
bove).
For example, consider Deut 16:18–20:
18 You shall appoint for yourself judges and officers in all your
towns which the Lord your God is giving you, according to your
tribes, and they shall judge the people with righteous judgment. 19
You shall not distort justice; you shall not be partial, and you shall
not take a bribe, for a bribe blinds the eyes of the wise and perverts
the words of the righteous. 20 Justice, and only justice, you shall
pursue, that you may live and possess the land which the Lord your
God is giving you.
According to this passage in Deuteronomy, judges should be
appointed, but they are not directed to follow the law—though
this is by no means discouraged—but rather to pursue justice.
51
In other words, Jackson envisions ancient Israelite law as a sys-
tem embodying values such as justice; the judges who administer
the law, on this view, ought to embody the values of the law.
52
The spiritual authority by which judges operated was supposedly
a line of unbroken succession through laying on of hands directly
back to Moses, whom God appointed (i.e. Deut 34:9).
53
Thus the
authority of judges was, by derivation, the authority of God.
Denise Reaume makes a theoretical distinction between top-
down and bottom-up legislation that is helpful for describing the
relationship between the biblical law tradition and ongoing judi-
cial pronouncement. There are, she argues, two ends of a spec-
trum of approaches to lawmaking. “The first model operates in a
top-down fashion, and is associated with the legislative approach
50. Jackson, “Legalism and Spirituality,” 249.
51. Ibid., 245. Cf. Fitzpatrick-McKinley, Transformation of Torah, 86.
Debate about this issue also is discussed in depth by Jackson (Semiotics of
Biblical Law, 146–64, esp. 153 and 164)
52. There are obvious overlaps in this discussion with virtue ethics,
though in this case a concrete goal (living in the land) motivates virtue rather
than (or at least more specifically than) an implied abstract notion of the good.
Cf. Porter, “Virtue Ethics,” 87–109; Tousley and Kallenberg, “Virtue Ethics,”
814–19.
53. Jackson, “Legalism and Spirituality,” 254.
McMaster Journal of Theology and Ministry 18
180
to norm creation. The second exemplifies a bottom-up method-
ology, and is based on the common-law process.”
54
Because the
top-down approach begins with a general theory, Reaume ex-
plains, “theorizing is mostly the job of the legislature. If the le-
gislature properly fulfills its function of working out a com-
prehensive moral theory and drafting the specific rules necessary
to deal with all possible fact situations, there should be little need
for adjudicators to engage with the large moral principles under-
lying the rules.”
55
On a bottom-up model of legislation, the process is reversed.
She explains, “This model holds that although we may agree on
and be deeply committed to certain abstract values or principles,
we cannot anticipate all the fact situations in which they may be
implicated, nor can we fully map out a comprehensive view of
the concrete consequences implicated by those values.”
56
The
bottom-up model, she explains, is the legislative process of a
common law legal system. This model seeks to determine what it
means to uphold certain values in particular cases.
The theoretical distinction Berman, Jackson, and Burnside
outline between common-law and statutory models is analogous
to Reaume’s distinction between bottom-up and top-down legis-
lation. Biblical law, because it is a common-law tradition, re-
quires the authoritative pronouncements of judges in order to
function in new circumstances. The law is essentially inoperative
apart from the interpretive application of judges. However, be-
cause the pronouncements of judges have the force of law, the
law tradition is actually extended through judgements. If the bib-
lical law tradition is indeed better described as a common-law
tradition than a statutory system, then by analogy it is accurate to
say that biblical law is not autonomous, but functions through
the agency of judges.
57
Accepting these premises, I would argue
54. Reaume, “Of Pigeonholes and Principles,” 116.
55. Ibid., 119.
56. Ibid., 117.
57. The term judge here may refer to a judge in a court of law, or the
monarch whose word is law, or to an elder respected in a community—what is
critical is that someone holds authority within a community and exercises that
authority in the interpretation of the community’s law tradition, and does so as
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that the biblical law tradition is, therefore, coextensive with the
ongoing interpretation of judges who make pronouncements
about the ongoing significance and enactment of the law.
To summarize the argument thus far, a complementarian ap-
proach offers a more coherent account of both the continuities
and discontinuities between the biblical law corpora. The com-
plementarian approach rejects the statutory model of law in fa-
vour of a common-law model, and accordingly adopts a suitable
“semiotic” hermeneutic as articulated by Jackson and applied by
Burnside in regard to food laws and Berman in regard to the
book of Ruth. This hermeneutic seeks to identify the typical
cases and contexts implied by biblical laws, and also seeks to
propagate this tradition in a way that reflects the similarity or
dissimilarity from those typical cases. Moving forward, we can
ask whether this biblical law tradition is propagated in the New
Testament, and what we would expect to see if it were.
Biblical Law in the New Testament
The preceding discussion has focused on the nature of the legal
tradition evidenced in the Hebrew Bible, and one of the central
ideas that I have pursued is the notion of the law tradition as a
common-law, rather than statutory model. However, it is im-
portant to consider the issue of the New Testament authors’ (and
the historical figures they depict, insofar as a reasonable
historical picture can be inferred from the texts) engagement
with the biblical law tradition. Is the biblical law tradition, un-
derstood as a common-law tradition, propagated in the New
Testament? If it appears to be so, then the common-law construal
of law in the Hebrew Bible is rendered even more plausible. In
this section I will examine some of the evidence and arguments
that this is indeed the case.
Jackson has extended his discussion about the role of law in
ancient Israel into Second Temple Judaism and the New
a third party in a dispute. As examples consider the accounts of Solomon and of
Moses and Jethro above.
McMaster Journal of Theology and Ministry 18
182
Testament.
58
He surmises, “the distinction between the role and
functions of legislation and adjudication assists in understanding
the thorny question of the relationship of Jesus to the law in the
New Testament.”
59
While some consider the Sermon on the
Mount as a sort of “new Torah,” replacing the old,
60
Jackson
argues, “The famous introduction to the Sermon on the Mount
may be taken as an affirmation of the integrity and stability of
divine legislation.”
61
Jackson, then, posits a continuity between
the legal tradition of ancient Israel and that of Second Temple
Judaism. He also describes “the charismatic authority of the
biblical judge” as a feature of the biblical law tradition that was
carried over into rabbinic Judaism, and thus was almost certainly
an operative feature of the intervening era’s legal tradition. As
with the documents of the Pentateuch, New Testament use of the
Old Testament legal tradition generates the same set of dif-
ficulties mentioned above (e.g. why do different texts exhibit ap-
parently different implementations of the legal tradition?).
62
Jesus does expand Old Testament laws in the Sermon on the
Mount.
63
However, it is too simplistic to simply claim that Jesus
rejects or replaces the Old Testament legal tradition.
64
58. Cf. Jackson, Essays on Halakhah, 13–31.
59. Jackson, “Legalism and Spirituality,” 249.
60. E.g. Viljoen, “Jesus’ Teaching on the Torah,” 135.
61. Jackson, “Legalism and Spirituality,” 250.
62. Law in the New Testament is a highly debated topic. Key issues
typically revolve around Jesus and Paul’s use of the law; however, James also
generates discussion. For a summary of issues regarding Paul, see Das, “Paul
and the Law.” Cf. Wishart, “Paul and the Law,” 153–77. The list of relevant
works could easily be expanded but would not serve the purposes of this essay.
63. Sanders, “When Is a Law a Law?” 147.
64. A widely held view claims that Jesus and Paul opposed the law in
some sense, whether aspects of the law or ways of performing the law, and that
one or both of them advocated a “new law” in place of the old (Rosner, Paul
and the Law; as this relates to both Old Testament law and ethics, see Selman,
“Law,” 513). Sanders (“When Is a Law a Law?” 140–41) summarizes this
‘replacement’ position: this view encompasses a number of claims, including
(1) the law demands perfect obedience; (2) the law is not good; and (3) it has
been replaced by something. This view deals with (A) the pro-law statements
by saying they refer either to a new law, or to the demands lying behind the
law, and (B) the anti-law statements by saying they refer to “the supposed
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Jesus, he explains, claims authority to restate the law in the
tradition of the eschatological prophetic role of one who is like
Moses, much like the Teacher of Righteousness of Qumran.
65
The Rabbis, moreover, allowed that such a prophet may suspend
the law in particular circumstances.
66
The Babylonian Talmud,
he points out, also offers about thirty examples of adjudicating
against the Old Testament law’s stipulations, which highlights
the fact that strict conformity to Old Testament law was not
always the norm, even outside of the New Testament.
67
In regard to plucking the heads of grain on the Sabbath, for
example, Jesus does not quote a law, but a precedent.
68
In Matt
12:5–7, Jesus asks,
5 Or have you not read in the Law, that on the Sabbath the priests in
the temple break the Sabbath and are innocent? 6 But I say to you
that something greater than the temple is here. 7 But if you had
known what this means, ‘I desire compassion, and not a sacrifice,’
you would not have condemned the innocent.
While the Pharisees were concerned that Jesus’s disciples had
not followed a rule, Jesus has a twofold response: on the one
hand, he affirms the authority of the legal tradition by referring
to a precedent from the law, and on the other hand, he indicates
that a new circumstance—the arrival of one greater than the tem-
ple—requires that his disciples do otherwise than the literal
meaning of a previous judgement or rule. This non-compliance,
he claims, actually honours the legal tradition better than strictly
“literal” obedience in this case.
Jewish legalistic way of doing the law,” or else to the ritual aspects of the law
(141). Moreover, (C) the further demands that Jesus and Paul make realize
God’s demand for perfect obedience.
65. Jackson, “Legalism and Spirituality,” 250. This Teacher was a
“prophet-like-Moses” who “reformulated many of the rules [of Torah]”
(Jackson, Essays on Halakhah, 19).
66. Jackson, “Legalism and Spirituality,” 250. Cf. Elijah’s sacrificing on
Mt. Carmel—not at the temple—is presented as implicitly justified deviance
from the law’s stipulations, whereas sacrifice at the high places was generally
condemned.
67. Ibid., 251.
68. Ibid., 251.
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184
A common-law tradition, for its part, not only allows for
judgements that do not align with previous judgements, it actu-
ally requires new decisions in new contexts. This legal model,
argues Jackson, explains how Jesus can go beyond codified Old
Testament laws and yet claim his teaching is coextensive with
that very tradition.
69
A source of disagreement, however, is when and why new de-
cisions should differ from old decisions. For example, Jesus’s in-
struction to love God and neighbour is in some sense unam-
biguous as a norm for Christian ethics; people do not necessarily
find it difficult to apply this abstract love rule to concrete situa-
tions. The difficulty, however, is getting everyone to agree on
when and how certain applications, the hard cases, are legiti-
mate. In this sense there is what Reaume calls a “latent legiti-
macy dilemma with the bottom-up method.”
70
In other words,
this kind of model raises the problem of authority—who has the
authority to make judgements? “Adaptation to change keeps the
law supple,” she continues, “yet the more creative a new formu-
lation of an old principle is, the more likely it is to provoke ques-
tions about the nature of the decision maker doing the refor-
mulating.”
71
For this reason, a bottom-up method functions only when
there is an authoritative decision maker, a judge, who can deter-
mine the nature of the new situation, its analogy to past situa-
tions, and the obligations to the law that are entailed by the situa-
tion. If we consider Paul’s instructions, his letters exhibit for us
occasions on which he exercised his authoritative voice as an
apostle to determine the proper behaviour in specific circum-
stances. However, apostles are not always present to make deci-
sions, and elders may disagree among one another about the
obligations of the moment—how best to love God and others in
a concrete situation. This reflection may illuminate for us why it
69. Sanders’s, by contrast, claims that Matt 5:17–19 must be an
interpolation. He tendentiously claims, “Jesus could not have said anything
about the law as explicit as Matthew 5:17–20” (Sanders, “When Is a Law a
Law?” 149).
70. Reaume, “Of Pigeonholes and Principles,” 119.
71. Ibid., 119.
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is that Paul desires so strongly for his readers to develop discern-
ment: he wants them to be able to make these decisions with
faithfulness—to be able to stand before the Lord Jesus on the
judgement day with clear consciences. In Rom 12:2–3, Paul
says,
And do not be conformed to this world, but be transformed by the
renewing of your mind, so that you may prove what the will of God
is, that which is good and acceptable and perfect. For through the
grace given to me I say to everyone among you not to think more
highly of himself than he ought to think; but to think so as to have
sound judgment, as God has allotted to each a measure of faith.
Paul desires for his assemblies to have renewed minds that
engage wisely and with discernment, proving the will of God.
This instruction introduces the letter’s parenetic material, where
Paul turns his focus from problems of humanity and theology to
problems of appropriate behaviour.
72
However, does Paul
consider the behaviour he advocates to be consistent with the
biblical legal tradition? At this point I would like to suggest that
Paul envisions the ethical norms of his communities to be con-
sistent with the values and paradigms of the biblical law tra-
dition. I will mention three points that seem to indicate this is so.
First, whatever his understanding of the biblical law tradition,
Paul does respect the authority of that tradition and the texts that
bear witness to it. While the case may be overstated at times, the
recent Paul within Judaism movement has at least demonstrated
that there is some sense in which Paul does consider the Torah as
a normative legal–ethical tradition.
73
For example, when Paul
exhorts the Romans to “Owe nothing to anyone except to love
one another” in Rom 13:8, his rationale is not explicitly that
Jesus commanded it, or that love is a superior virtue, but rather
that “the one who loves his neighbour has fulfilled the law.” In
fact, all of the commandments, even commandments from the
Decalogue such as “you shall not commit adultery,” “you shall
72. Porter, Letter to the Romans, 229–34.
73. There are varying degrees of Torah-observance attributed to Paul. For
the strongest claim, see Nanos, “Paul’s Non-Jews,” 26–53; Nanos, “Myth of
the ‘Law-Free’ Paul,” 1–21.
McMaster Journal of Theology and Ministry 18
186
not murder,” and “you shall not covet,” Paul claims, are
“summed up” in the law of Lev 19:18, “You shall love your
neighbour as yourself.”
74
Second, Paul appears at least some of the time to interpret
laws in a way similar to Jackson’s semiotic hermeneutic. Con-
sider 1 Cor 9:8–10. Paul claims that evangelists ought to be sup-
ported financially, and justifies this claim by saying,
I am not speaking these things according to human judgment, am I?
Or does not the Law also say these things? For it is written in the
Law of Moses, “Y
OU SHALL NOT MUZZLE THE OX WHILE HE IS
THRESHING
.” God is not concerned about oxen, is He? Or is he
speaking altogether for our sake? Yes, for our sake it was written . . .
Paul explicitly rejects the idea that a literal reading of this law
circumscribes all the ways the law should be applied. We have
already seen one other instance where this law was not taken
“literally,” in terms of how it must be applied, but rather the
literal meaning indicated a larger thematic meaning that arises
from its original context as a whole.
75
The narrative image
evoked by the oxen law is different enough from the context of
the original formulation (though apparently still appropriately
applied to the financial compensation of first-century elders in
the assembly) that Paul was justified in reinterpreting the literal
meaning’s import for a new situation. Paul does not appeal to
this original context, but his interpretation is nevertheless con-
sistent with the broader ideas regarding human dignity and the
right of the widow and orphan to work for a living, as Ruth did.
Third, the legal and institutional context of Paul’s interpre-
tation of the law tradition appears to remain that of wisdom laws.
Recall that wisdom laws are aimed not at lawyers but at the en-
tire community, with the aim that communities would not require
third-party adjudication but would be able to resolve disputes
among themselves. In one sense, there is novelty in what Paul
74. To this point we can add that here Paul does not distinguish between
the Decalogue, appearing in Exodus and Deuteronomy, and the Holiness Code
in Leviticus. However, the Torah was already a single collection by this point,
so the significance of this point is limited.
75. See above, n. 39.
W
ISHART
An Emerging Account of Biblical Law
187
instructs, because he considers the saints (οἱ ἅγιοι) to be qualified
adjudicators of disputes in light of the fact that they shall judge
both the world and the angels in the eschaton. But in another
sense, Paul maintains the tradition of wisdom law outlined
above. In 1 Cor 5:12—6:9 he says,
Do you not judge those who are within the church? But those who are
outside, God judges. R
EMOVE THE WICKED MAN FROM AMONG
YOURSELVES
. Does any one of you, when he has a case against his
neighbor, dare to go to law before the unrighteous and not before the
saints? Or do you not know that the saints will judge the world? If the
world is judged by you, are you not competent to constitute the
smallest law courts? Do you not know that we will judge angels?
How much more matters of this life? So if you have law courts
dealing with matters of this life, do you appoint them as judges who
are of no account in the church? I say this to your shame. Is it so, that
there is not among you one wise man who will be able to decide
between his brothers, but brother goes to law with brother, and that
before unbelievers? Actually, then, it is already a defeat for you, that
you have lawsuits with one another. Why not rather be wronged?
Why not rather be defrauded? On the contrary, you yourselves wrong
and defraud. You do this even to your brothers. Or do you not know
that the unrighteous will not inherit the kingdom of God?
In this passage Paul references a formula found in Deut 17:7;
19:19; 22:21, 24; 24:7 (LXX 24:9). Paul in this passage both
upholds the authority of the legal tradition by citing the paradigm
of excising dangerous members of society, and also calls for the
exercise of judgement on the part of the Corinthians. Interest-
ingly, he claims (perhaps by way of rhetorical question—al-
though it could be a statement) that they are competent to con-
stitute a small legal court. The problem with the courts of the
world is that their judges are of no account within the church. As
Meeks puts it, “he [Paul] expects the Christians to find a
mechanism within the community to settle the even more deplor-
able sin of porneia,” that is, “a panel to arbitrate matters of
everyday life among themselves.”
76
This example, while not
proving Paul conceives of law as wisdom law, nevertheless
76. Meeks, First Urban Christians, 129, 104.
McMaster Journal of Theology and Ministry 18
188
points in the direction of the common-law tradition outlined in
this paper.
This evidence may be circumstantial; there could be other
plausible reasons Paul describes laws or legal situations in these
ways. However, I find it unlikely that Paul invented a new con-
ception of law as a statutory system (or perhaps borrowed the
notion from the Romans).
77
Given that the evidence surveyed
here fits the common-law model of the biblical law tradition, it is
certainly plausible that Paul upheld this tradition. If evidence
from both Paul and Jesus can be straightforwardly explained
within the common-law paradigm in this way, then it is reason-
able to assume as a working hypothesis that the biblical law tra-
dition as evidenced in the Hebrew Bible is propagated in the
New Testament without a substantial shift in the way law was
understood to function.
Conclusion
Biblical law is better understood as a common-law tradition rath-
er than a statutory system. As such, it does not consist of codi-
fied laws but rather a rich tradition of judgements, coextensive
with and subject to ongoing judicial pronouncement. Critically,
this common-law tradition is not restricted to the Hebrew Bible,
but continues to be exploited by New Testament authors as a re-
source for moral and ethical reasoning in order to justify their
decisions about how to resolve the conflicts and dilemmas of
their situations. Not only do Jesus and Paul exploit this tradition,
but in so doing they maintain it, bringing it to bear on new and
challenging circumstances.
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