_LAW AND RELIGION_
DEUT. xii.-xxvi.
With this section (chapters xii.-xxvi.) we have at length reached
the legislation to which all that has gone before is, in form at
least, a prelude. But in its general outline this code, if it can
be so called, has a very unexpected character. When we speak of a
code of laws in modern days, what we mean is a series of statutes,
carefully arranged under suitable heads, dealing with the rights
and duties of the people, and providing remedies for all possible
wrongs. Then behind these laws there is the executive power of
the Government, pledged to enforce them, and ready to punish any
breaches of them which may be committed. In most cases, too,
definite penalties are appointed for any disregard or transgression
of them. Each word has been carefully selected, and it is understood
that the very letter of the laws is to be binding. Every one tried
by them knows that the exact terms of the laws are to be pressed
against him, and that the thing aimed at is a rigorous, literal
enforcement of every detail. Tried by such a conception, this
Deuteronomic legislation looks very extraordinary and unintelligible.
In the first place, there is very little of orderly sequence in
it. Some large sections of it have a consecutive character; but
there is no perceptible order in the succession of these sections,
and there has been very little attempt to group the individual
precepts under related heads. Moreover in many sections there is no
mention of a penalty for disobedience, nor is there any machinery
for enforcing the prescriptions of the code. There is, too, much in
it that seems rather to be good advice, or direction for leading
a righteous life, a life becoming an Israelite and a servant of
Yahweh, than law. For instance, such a prescription as this, "If
there be with thee a poor man, one of thy brethren, within any of
thy gates, in thy land which Yahweh thy God giveth thee, thou shalt
not harden thine heart nor shut thine hand from thy poor brother,"
can in no sense be treated as a law, in the hard technical sense of
that word. It stands exactly on a level with the exhortations of the
New Testament, _e.g._ "Be not wise in your own conceits," "Render
to no man evil for evil," and rather sets up an ideal of conduct
which is to be striven after than establishes a law which must be
complied with. There is no punishment prescribed for disobedience.
All that follows if a man do harden his heart against his poor
brother is the sting of conscience, which brings home to him that he
is not living according to the will of God. In almost every respect,
therefore, this Deuteronomic code differs from a modern code, and in
dealing with it we must largely dismiss the ideas which naturally
occur to us when we speak of a code of laws. Our conception of that
is, clearly, not valid for these ancient codes; and we need not be
surprised if we find that they will not bear being pressed home
in all their details, as modern codes must be, and are meant to
be. Great practical difficulties have arisen in India, Sir Henry
Maine assures us, from applying the ideas of Western lawyers to
the ancient and sacred codes of the East. He says that the effect
of a procedure under which all the disputes of a community must
be referred to regular law-courts is to stereotype ascertained
usages, and to treat the oracular precepts of a sacred book as
texts and precedents that must be enforced. The consequence is that
vague and elastic social ordinances, which have hitherto varied
according to the needs of the people, become fixed and immutable,
and an Asiatic society finds itself arrested and, so to speak,
imprisoned unexpectedly within its own formulas. Inconsistencies
and contradictions, which were never perceived when these laws
were worked by Easterns, who had a kind of instinctive perception
of their true nature, became glaring and troublesome under Western
rule, and much unintentional wrong has resulted. May it not be
that the same thing has happened in the domain of literature in
connection with these ancient Hebrew laws? Discrepancies, small and
great, have been the commonplace of Pentateuch criticism for many
years past, and on them very far-reaching theories have been built.
It may easily be that some of these are the result rather of our
failure to take into account the elastic nature of Asiatic law, and
that a less strained application of modern notions would have led to
a more reasonable interpretation.
But granting that ordinary ancient law is not to be taken in our
rigorous modern sense, yet the fact that what we are dealing with
here is Divine law may seem to some to imply that in all its details
it was meant to be fulfilled to the letter. If not, then in what
sense is it inspired, and how can we be justified in regarding it
as Divinely given? The reply to that is, of course, simply this,
that inspiration makes free use of all forms of expression which
are common and permissible at the time and place at which it utters
itself. From all we know of the Divine methods of acting in the
world, we have no right to suppose that in giving inspired laws
God would create entirely new and different forms for Himself. On
the contrary, legislation in ancient Israel, though Divine in its
source, would naturally take the ordinary forms of ancient law.
Moreover in this case it could hardly have been otherwise. As has
already been pointed out, a large part of the Mosaic legislation
must have been adopted from the customs of the various tribes who
were welded into one by Moses. It cannot be conceived that the laws
against stealing, for example, the penalties for murder, or the
prescriptions for sacrifice, can have been first introduced by the
great Lawgiver. He made much ancient customary law to be part and
parcel of the Yahwistic legislation by simply taking it over. If so,
then all that he added would naturally, as to form, be moulded on
what he found pre-existing. Consequently we may apply to this law,
whether Divinely revealed or adopted, the same tests and methods
of interpretation as we should apply to any other body of ancient
Eastern law.
Now of ancient Eastern codes the laws of Manu are the nearest
approach to the Mosaic codes, and their character is thus stated by
themselves (chap. i., ver. 107): "In this work the sacred law has
been fully stated, as well as the good and bad qualities of human
actions and the immemorial rule of conduct to be followed by all."
That means that in the code are to be found ritual laws, general
moral precepts, and a large infusion of immemorial customs. And its
history, as elicited by criticism, has very interesting hints to
give us as to the probable course of legal development in primitive
nations. It is sometimes said that the results of the criticism
of the Old Testament, if true, present us with a literature which
has gone through vicissitudes and editorial processes for which
literary history elsewhere affords absolutely no parallel. However
that may be as regards the historical and prophetical books, it is
not true with regard to the legal portions of the Pentateuch. The
very same processes are followed in Professor Buhler's Introduction
to his translation of the _Laws of Manu_, forming Vol. XXV. of
_The Sacred Books of the East_, as are followed in the critical
commentaries on the Old Testament law codes. Pages lxvii. _seq._ of
Buhler's Introduction read exactly like an extract from Kuenen or
Dillmann; and the analysis of the text, with its resultant list of
interpolations, runs as much into detail as any similar analysis
in the Old Testament can do. Moreover the conjectures as to the
growth of Manu's code are, in many places, parallel to the critical
theories of the growth of the Mosaic codes. The foundation of Manu
is, in the last resort, threefold--the teaching of the Vedas, the
decisions of those acquainted with the law, and the customs of
virtuous Aryas. At a later time the teachers of the Vedic schools
gathered up the more important of these precepts, decisions, and
customs into manuals for the use of their pupils, written at first
in aphoristic prose, and later in verse. These, however, were not
systematic codes at all. As the name given them implies, they were
strings of maxims or aphorisms. Later, these were set forth as
binding upon all, and were revised into the form of which the _Laws
of Manu_ is the finest specimen.
In Israel the process would appear to have been similar, though much
simpler. It was similar; for though there are radical differences
between the Aryan and the Semitic mind which must not be overlooked,
the former being more systematic and fond of logical arrangement
than the latter, a great many of the things which are common to
Moses and Manu are quite independent of race, and are due to the
fact that both legislations were to regulate the lives of men at
the same stage of social advancement. But Manu was much later than
Moses. Indeed, as we now have them, the laws of Manu are as late as
the post-Ezraite Judaic code, and in temper and tone these two codes
very nearly resemble each other. Consequently the earlier codes
of the Pentateuch are simpler than Manu. When Israel left Egypt,
custom must have been almost alone the guide of life. Moses' task
was to promulgate and force home his fundamental truths; in this
view he must adopt and remodel the customary law so as to make it
innocuous to the higher principles he introduced, or even to make it
a vehicle for the popularising of them. So far as he made codes, he
would make them with that end. Consequently he would take up mainly
such prominent points as were most capable of being, or which most
urgently needed to be, moralised, leaving all the rest to custom
where it was harmless. This is the reason, too, most probably,
why the earlier codes are so short and so unsystematic. They are
selections which needed special attention, not complete codes
covering the whole of life. In fact the form and contents of all the
Old Testament codes can be accounted for only on this supposition.
As the codes lengthen, they do so simply by taking up, in a modified
or unmodified form, so much more of the custom; and under the
pressure of Yahwistic ideas these selected codes became more and
more weighted with spiritual significance and power.
That would seem to have been the process by which the inspired
legislators of Israel did their work; and if it be so, some of
the variations which are now taken to be certain indications
of different ages and circumstances may simply represent local
varieties of the same custom. Custom tends always to vary with the
locality within certain narrow limits. It would be quite in accord
with the general character of ancient customary law to believe
that, provided the law was on the whole observed, there would be no
inclination to insist upon excluding small local variations; and
equally so that in a collection like the Pentateuch the custom of
one locality should appear in one place, that of another in another.
In that case, to insist that a certain sacrifice, for example,
shall always consist of the same number of animals, and that any
variation means a new and later legislation on the subject, is
only to make a mistake. The discrepancy is made important only by
applying modern English views of law to ancient law. Professor A. B.
Davidson has shown in the Introduction to his _Ezekiel_ (p. liii.)
that this latter was probably Ezekiel's view. "On any hypothesis
of priority," he says, "the differences in details between him
(_i.e._ Ezekiel) and the law (_i.e._ P) may be easiest explained by
supposing that, while the sacrifices in general and the ideas which
they expressed were fixed and current, the particulars, such as the
kind of victims and the number of them, the precise quantity of
meal, oil, and the like, were held non-essential and alterable when
a change would better express the idea." The same principle would
apply to the differences between Ezekiel and Deuteronomy, _e.g._ the
omission of the feast of weeks and of the law of the offering of the
firstlings of the flock. If so, then obviously Ezekiel must have
thought that the previous ritual law was not meant to be as binding
as we make it.
But, as has already been remarked, this law was elastic in more
important matters; often, even when it seems to legislate, it is
only setting up ideals of conduct. Before we leave this subject an
example should be given, and the law of war may serve, especially if
we compare it with the corresponding section of Manu. The provisions
in Deuteronomy chap. xx. according to which on the eve of a battle
the officers should proclaim to the army that any man who had built
a new house and had not dedicated it, or who had planted a vineyard
and had not yet used the fruit of it, or who had betrothed a wife
and not yet taken her, or who was afraid, should retire from the
danger, as also the provisions that forbid the destruction of
fruit-trees belonging to a besieged city, cannot have been meant
as absolute laws. Yet that is no ground for supposing that they
could have been introduced only after Israel, having ceased to
be a sovereign state, waged no war, and that consequently they
are interpolations in the original Deuteronomy. For the similar
provisions of the laws of Manu were given while kings reigned, and
were addressed to men constantly engaged in war. Yet this is what we
find: "When he (the king) fights with his foes in battle, let him
not strike with weapons concealed (in wood), nor with (such as are)
barbed, poisoned, or the points of which are blowing with fire. Let
him not strike one who (in flight) has climbed on an eminence, nor a
eunuch, nor one who joins the palms of his hands (in supplication),
nor one (who flees) with flying hair, nor one who sits down, nor
one who says 'I am thine,' nor one who sleeps, nor one who has lost
his coat of mail, nor one who is naked, nor one who is disarmed,
nor one who looks on without taking part in the fight, nor one who
is fighting with another foe, nor one whose weapons are broken,
nor one afflicted (with sorrow), nor one who has been grievously
wounded, nor one who is in fear, nor one who has turned to flight;
but in all these cases let him remember the duty (of honourable
warriors)." With an exact and unremitting obligation to observe
these precepts war would be impossible, and we may be sure that in
neither case were they meant in that sense. They simply set forth
the conduct which a chivalrous soldier would desire to follow, and
would on fitting occasions actually follow; but by no means what
he must do, or else break with his religion. Only by hypotheses
like these can the form and the character of such laws be properly
explained, and if we keep them constantly in mind, some at least of
the difficulties which result from a comparison of the law and the
histories may be mitigated.
Such being the character of the Deuteronomic code, the question
has been raised whether its introduction and acceptance by Josiah
was not a falling away from the spirituality of ancient religion.
Many modern writers, supported by St. Paul's _dicta_ concerning
the law, say that it was. Indeed the very mention of law seems to
depress writers on religion in these days, and Deuteronomy appears
to be to them a name of fear. But whatever tendencies of modern
thinking may have brought this about, it is nevertheless true that
experience embodied in custom and law is the kindly nurse, not the
deadly enemy, of moral and spiritual life. Without law a nation
would be absolutely helpless; and it is inconceivable that at any
stage of Israel's history they were without this guide and support.
As we have seen, they never were. First they had customary law; then
along with that short special codes, _e.g._ the Book of the Covenant
and the Deuteronomic code; and even when the whole Pentateuchal
law as we have it had been elaborated, a good deal must still have
been left to custom. Consequently there was nothing so startling
and revolutionary in the introduction of Deuteronomy as many have
combined to represent. Indeed it is difficult to see how it altered
anything in this respect. Of all forms of law, customary law is
perhaps that which demands and receives most unswerving obedience.
Under it, therefore, the pressure of law was heavier than it could
be in any other form. It does not appear how the fact that those
observing it did not think of that which they obeyed as law, but
simply custom, altered the essential nature of their relation to
it. They were guided by ordinances which did not express their own
inward conviction, and were not a product of their own thought.
They obeyed ordinances from without, and these ought therefore
to have had the same effect upon the moral and spiritual life as
written laws. For they cannot be said to have regulated only civil
life. Religious life (even if the Book of the Covenant be Mosaic
or sub-Mosaic, as I believe; much more if it be post-Davidic,
as many say) must have been largely regulated by the customs of
Israel. If law then be in its own nature, as the antinomians tell
us, destructive of spontaneity and progress, if it necessarily
externalises religion, then there would have been as little room for
the religion of the prophets before Deuteronomy as after it.
But, as a matter of fact, no falling off in spirituality took place
after Deuteronomy. Wellhausen says that with law freedom came to
an end, and this was the death of prophecy. But he can support his
thesis only by denying the name of prophet to all the prophets after
Jeremiah. It is difficult to see the basis of such a distinction. It
is judged by this, if by nothing else--that it compels Wellhausen
to deny that the author of Second Isaiah is a prophet. That he
wrote anonymously is held to prove that he felt this himself. Now a
view so extraordinarily superficial has no root, and every reader
of that most touching and sublime of all the Old Testament books
will simply stand amazed at the depth of the critical prejudice
which could dictate such a judgment. If the post-Deuteronomic
prophets are not prophets, then there are no prophets at all, and
the whole discussion becomes a useless logomachy. But even if
Ezekiel and Second Isaiah and the rest are not prophets, they are
at least full of spiritual life and power, so that the decay of
spiritual religion which the adoption of Deuteronomy is supposed
to have brought about must be considered purely imaginary on that
ground also. And this contention is strengthened by the theories
of the critical school themselves. If the bulk of the Psalms, as
all critics incline to believe, or all of them, as some say, are
post-exilic, then the first centuries of the post-exilic period must
have been the most spiritually minded epoch in Israelite history.
The depth of religious feeling exhibited in the Psalms, and the
comprehension of the inwardness of man's true relation to God by
which they are penetrated, are the exact contrary of the externality
and superficiality which the introduction of written law is said to
have produced. So long as the Psalms were being written religious
life must have been vigorous and healthy, and to date the beginnings
of Pharisaic externalism from Josiah's day must consequently be an
error.
After what has been said it is scarcely necessary to discuss Duhm's
views of the opposition between prophecy and Deuteronomy. It will be
sufficient to ask how the latter can have turned against prophecy,
when it is in its essence an embodiment of prophetic principles in
law, and was introduced and supported by prophets. But, it may be
said, after all prophecy did decay, and ultimately die, and that too
during the period after Deuteronomy. Is there not in that admitted
fact a presumption that this law did work against prophecy? If so,
then it is more than met by the fact that the decay of spiritual
religion became noticeable only some centuries after this, and
that the immediate effect of Deuteronomy was rather to deepen and
intensify religion, and to keep it alive amid all the vicissitudes
of the Captivity and Return. Moreover the break-up of the national
life was sufficient to account for the slow decay and final
cessation of prophecy. From the first, prophecy had been concerned
with the building up of a nation which should be faithful to Yahweh.
Its main function had been to interpret and to foretell the great
movements and crises of national life--to read God's purpose in
the great world-movements and to proclaim it. With Israel's death
as a nation the field of prophecy became gradually circumscribed,
and ultimately its voice ceased. Consequently, though in the main
the final cessation of prophecy was connected with the rise of
externalism in religion and with the great decay of spiritual life
in the two or three centuries before Christ, the destruction of the
nation would account for the feebleness of prophecy during a period
when the inner spiritual life was flourishing as it flourished after
Deuteronomy. Moreover, as religion became more inward and personal,
prophecy, in the Old Testament sense, had less place. Though in New
Testament times spiritual life and spiritual originality and power
were more present than at any time in the world's history, prophecy
did not revive. In the whole New Testament there is not one purely
prophetic book save the Revelation, and that is apocalyptic more
than simply prophetic; and though there was an order of prophets in
the early Church, if they had any special function other than that
of preachers their office soon died out. If then the denationalising
of religion and its growth in individualism and inwardness in New
Testament times prevented the revival of prophecy, we may surely
gather that the same things, and not the introduction of written
law, brought it to an end in the Old Testament.
Nor does St. Paul's judgment as to the meaning and use of law,
in Galatians, when rightly understood, contradict this. No doubt
he seems to say that the Mosaic law by its very nature as law is
incompatible with grace, that it necessarily stands out of relation
to faith, and that its principle is a purely external one, so much
wages for so much work. Further, he clearly regards it as having
been interpolated into the history of Israel between the promises
given to Abraham and the fulfilment of them in the redemption by
Christ, and as having served only to increase sin and to drive men
thus to Christ. But when he says this he is replying mainly to the
Pharisaic view of the law which was represented by the Judaizers,
and finds himself all the more at home in refuting it that it was
his own view before he became a Christian. According to that view,
the whole law, both the moral and ceremonial provisions of it, was
necessary to obtain moral righteousness, and the mere doing of the
legally prescribed things gave a claim to the promised reward. So
interpreted, law had all the evil qualities he states, and stood
in absolute hostility to grace and faith, the great Christian
principles. The only difficulty is that St. Paul does not say, as we
should expect him to do, that originally the law was not meant to
be so regarded. He seems to admit by his silence that the Pharisaic
view of the law was the right one. But if he does, he cannot have
meant to include Deuteronomy. For there law is made to have its root
and ground in grace. It is given to Israel as a token of the free
love of God, and it is a law of life which, if kept, would make
them a peculiar people unto God. Further, love to God is to be the
motive from which all obedience springs, so that this law is bound
up with both grace and faith. But the probability is that St. Paul
admits the Pharisaic view only because it is that view with which
alone he has to contend in the case in hand. For in Romans vii. he
gives us quite another conception of the Mosaic law.[70] There he is
thinking of it mainly from an ethical point of view, and he regards
it as full of the Spirit of God, as a norm of moral life which not
only continues to be valid in Christianity, but which finds in the
Christian life the very fulfilment which it was intended to have.
It presses home too the moral ideal upon the man with extraordinary
power, and marks and emphasises the terrible divergence between
his aspirations and his actual performance. This is a much higher
office than that which he assigns to law in Galatians; and hence
one gathers that he is not speaking in Galatians exhaustively and
conclusively, but is condemning rather a way of regarding the Mosaic
law with which he had once sympathised than that law in its own
essential character. In its moral aspects, as represented by the
Decalogue, the law is of eternal obligation. From it comes the light
which brings to the Christian that moral unrest and dissatisfaction
which is one of God's Divinest gifts to His people. In this aspect,
the law is holy and just and good: instead of favouring the critical
view St. Paul leaves it without any fragment of real support.
[70] Ritschl's _Rechtfertigung und Versöhnung_, vol. ii., pp. 311 ff.
Our conclusion is, therefore, that the antinomianism, which makes
the acknowledgment of Deuteronomy by Josiah and his people the
turning-point for the worse in the religious history of Israel,
is unfounded. The nation had always been under law, and previous
to Deuteronomy under even written law. This code was not in any
previously unheard-of way made the law of the kingdom. Its very
contents are conclusive against that view, for it contains much
that could not be enforced by the State. Instead of trying to do by
external means that which the persuasions of the prophets had failed
to do, Josiah and his people did just what they would have had to
do, when they became convinced that the prophetic principles ought
to be carried out. They made an agreement to follow these Divine
commands, these God-given principles, in actual life. But there is
no hint that they regarded Deuteronomy as the sum of the Divine
ordinances for the life of men. Indeed there are many references
to other Divine laws; and the priestly oracle remained, after
Deuteronomy as before it, a source of Divine guidance. Deuteronomy
therefore did not destroy prophecy; the post-exilic Psalms are proof
that it did not destroy spiritual life: and the Pauline view of the
law, in at least one series of passages, coincides entirely with the
view that law stated as it is stated in Deuteronomy may be one of
the mightiest influences to mould, and enrich, and deepen, moral and
spiritual life.