CHAPTER XIII

_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.

The Expositor's Bible: The Book of Deuteronomy · 第 13 / 26 章