CHAPTER XXI: JUSTICE IN ISRAEL

JUSTICE IN ISRAEL

Among the nations of the modern world one of the most vital distinctions is the degree in which just judgment is estimated and provided for. Indeed, according to modern ideas, life is tolerable only where all men are equal before the law; where all are judged by statutes which are known, or at least may be known, by all; where corruption or animus in a judge is as rare as it is held to be dishonourable. But we cannot forget that in the majority of even the more advanced countries of the world these three conditions are not yet found, and that where they do exist they are only recent acquirements. In the latest born, and in many respects the most advanced of the great commonwealths, in the United States of America, the corruption of a number of the inferior courts is undeniable, and is tolerated with a most disappointing patience by the people. In England Judge Jeffries is no very remote memory, and Lord Bacon's acceptance of presents from litigants in his court has only been made more certain by recent investigations. An absolutely honest intention to give even-handed justice to all is, therefore, even in England, only a recent attainment, and in no country is the honest intention always successful in realising itself. But if this be so among the civilised nations of the West, we may say that in Oriental countries there has been little of systematic and continuous effort to give even-handed justice at all. Yet nowhere has the sinfulness and the destructiveness of corruption in judgment been more impassionedly and more frequently set forth by the highest authorities in religion and morals, than in the East. Tupper, our most recent authority, in writing of Our Indian Protectorate, p. 289, describes the Indian attitude to law thus: "There was not that reverence for law which in Europe is in all probability very largely due to the influence of the Roman law, and to the teaching of the Roman Catholic and other Christian Churches. So far as there was a germ out of which the respect for law ought to have grown, it was to be found in dislike to actions plainly opposed to custom and tradition. There was a deeply rooted and widespread conviction that there could be no rule to which exceptions could not be made, if agreeable to the discretion of the chief or any of his delegates. The chief was set above the law; it did not limit his authority by any constitution. There was no legislation for the improvement of law. The administration of justice was extremely imperfect." The same writer describes the result of such a state of mind in his picture of Mahratta rule (p. 247). "There was," he says, "no prescribed form of trial. Men were seized on slight suspicions. Presumptions of guilt were freely made. Torture was employed to compel confession. Prisoners for theft were often whipped at intervals to make them discover where the stolen property was hidden. Ordinarily no law was referred to except in cases affecting religion." That there were both Hindu codes and Mohammedan codes in existence which claimed and were believed to have Divine authority made no difference in India. Nor does it make any in Persia to-day. [107]

Now, in coming to the consideration of the views of justice embodied in Old Testament law, and the quality of the judiciary in ancient Israel, we must take not Western but Eastern ideas as our standard. Judging from that point of view, it should create no prejudice in our minds if we find on the first glance that all men were not equal before the ancient law of Israel; that for a considerable period, if not during the whole political existence of Israel, there was no very extensive written law; and that arbitrary and corrupt judgment was only too common at all times. For none of these defects would indicate in ancient Israel the same evils as similar defects in nations of our time would indicate. They are rather defects in the process of being overcome, than defects arising from feeble or vitiated life. If there was a constant movement towards the highest state of things, that is all we can demand or expect to find.

Now there does seem to have been that. As has been well pointed out by Dr. Oort, [108] in the tribes which became Israel justice must have been administered by the heads of the various bodies which went to make these up. The household was ruled even in matters of life and death solely by the father; the family, in the wider sense, was judged by its own heads; the tribes by the elders of the tribes, and there probably was no appeal from one tribunal to another. Each tribunal was final in its own domain. It may be, also, that the judicial function was in all these bodies exercised in the lax and timid fashion common among Bedouin tribes to-day. [109] In all cases, too, it is probable that in the pre-Mosaic time the standard of judgment was customary law. Only with this very great modification can Oort's epigrammatic description of the situation--"There was no law, but there were givers of legal decisions"--be accepted. So far as can be ascertained, the customs according to which men were expected to live were perfectly well known, and within certain narrow limits of variation were extraordinarily stable. How stable customary law may be made, even in the midst of a society governed in the main according to written law in its strictest sense, may be seen in the execration which any breach of the Ulster custom of tenant right met with, before that custom was embodied in any statutes. And in antiquity the stringency of custom can hardly be exaggerated. Under it, when thoroughly established, there was, in all the cases covered by it, only this one way of acting for all, both men and women, who were fit for society at all. Any alternative course was probably inconceivable in the tribal stage of the Israelites' existence.

But a change would doubtless be wrought whenever the appointment of a king took place. Then national law would appear, in embryo at least; and at first, until custom had grown up in this region also, it would largely be an expression of the will of the king, and of the royal officers instructed and trained by the king. But it would have free and unchallenged course only when it claimed authority in matters lying outside of the family and tribal jurisdictions. Wherever it attempted to interfere with tribal or family rights, danger to the kingship of the most acute kind would be sure to arise. In all probability, it was disregard of this axiomatic truth which made Solomon's reign so burdensome to the people and tore the kingdom asunder under Rehoboam. Ahab too fell a victim to his disregard of it. Lastly, the introduction of elaborate written codes of law would, if it came as the crown of such a development, depose custom from its supremacy, though it would not abolish it; and would substitute for it as the main element in all judicial matters the written prescription, which is the necessary presupposition of a fully organised judiciary of the modern type, with a regulated and definite power of appeal.

But in the case of ancient Israel there is a distinguishing element which has to be fitted into this ordinary scheme of progression, and that is the Divine revelation to Moses. Taken up at the tribal stage by the Mosaic revelation, the Israelite tribes were touched and welded into coherence, if not quite as a nation, at least as the people of Yahweh, so that during all the distracting days of the Judges they kept up in essentials their social and religious unity. [110] And with the religious union there must have come administrative uniformity to some considerable extent. The jurisdiction of the heads of households, of heads of families, and of the tribal elders would be as little interfered with as possible; but, as we have seen, all customs and rights had to be reviewed from the point of view of the new religion, and appeal to Moses as the prophet of it must have often been unavoidable. Just as his first followers were continually coming to Mohammed, to ask whether this or that ancient custom could be followed by professors of Islam, so there must have been constant appeals to Moses. So long as he lived, therefore, he, and after him Joshua and Moses' fellow-tribesmen the sons of Levi, as being specially zealous for the religion of Yahweh, must have been constantly called in to assist the customary judges; and so the habit of appeal must have grown in Israel long before there was any king. Thus also a common standard of judgment would be established. That standard must necessarily have been the law of Yahweh, i.e. the new Yahwistic principles and all that might prima facie be deduced from them, together with so much of custom and tradition as had been accepted as compatible with these principles. We have stated the reasons for holding that the Decalogue was Mosaic, and the Book of the Covenant may be taken also to represent what the current law in Mosaic or sub-Mosaic time was held to be. As Oort well says (loc. cit.), when we know that the Hittites about the middle of the fourteenth century B.C. concluded a treaty with Rameses II. of Egypt the terms of which were written upon a silver plate, "why may there not also have been written statements regarding the mutual rights and duties of the people of a town, engraved upon stone or metal, and set forth openly for inspection?" What he confines to mere town business and refers to the time of the Judges, we may without risk extend to a general fundamental law like the Decalogue, or even to the Book of the Covenant, and date it in the time of Moses. Writing was so common an accomplishment in Canaan before the Exodus, that such a supposition is not in the least improbable. These written laws formed the crown of the law of Yahweh, and by them all the rest was raised to a higher level and transformed.

As new men, new times, and new difficulties arose, the priest became the special organ of Divine direction. It may be that the priestly Torah was largely the result of the sacred lot; but the questions that were put, and the manner in which they were put, would be decided ultimately by the conception the priest had of the truth about God. The teaching of the Decalogue would therefore be the dominant and formative power in all that was spoken by the priest and for Yahweh. In the disorganised state into which Israel fell during the time of the Judges, when, as Deuteronomy takes for granted, and as 1 Kings iii. 2 and 3 asserts, the legitimate worship of Yahweh was carried on at many centres, the substantial sameness of the tradition as to the history of Israel, in all the varied forms in which we encounter it, is proof sufficient that at each of the great sanctuaries (which were certainly in the hands of Levitical priests) the treasure of ancient knowledge, both in law and history, was carefully and accurately preserved. [111] New decisions would be given, but they came through men penetrated with the high thoughts of God, and of His people's destiny, which Moses had so fruitfully set forth. This was the element in the life of the people which all the higher minds strove to perpetuate, and, being spiritual, it spiritualised and raised all accessory things. Consequently there was, long before the kingship, what was equivalent to a national feeling of the highest kind, and the conception of justice and its administration corresponded to that.

In the Book of the Covenant, which in this matter represents so early a period that there is no mention of "judges," only of Pelilim, [112] i.e. arbitrators (Exod. xxi. 22), so that the tribal and family heads can alone have exercised judicial functions, we find the most solemn warnings against any legal perversion of right to gain popularity, against yielding to the vulgar temptation to oppress the poor, or to the subtler and, for generous minds, more insidious temptation, to give an unjust judgment out of pity for the poor. Israel was, moreover, to keep far from bribery, "which blindeth them that have sight, and perverteth righteous causes." In no way was the law to be used for criminal or oppressive purposes. From the very first, therefore, in Israel the higher principles of faith and life set themselves to combat à outrance the tendency to unjust judgment, which seems now, at least, quite ineradicable in the East, save among the Bedouin. [113]

A still higher note is struck in the repetition of the law in the Book of Deuteronomy. In chap. i., originally part of a historic introduction to the book proper, we read: "Hear the causes between your brethren, and judge righteously between a man and his brother, and the stranger that is with him. Ye shall not respect persons in judgment; ye shall hear the small and the great alike; ye shall not be afraid of the face of man; for the judgment (i.e. the whole judicial process and function) is God's; and the cause that is too hard for you ye shall bring unto me (Moses), and I will hear it." Yes, the judgment is God's. Just as the whole of moral duty towards man was raised by the Decalogue to a new and more intimate relation with God, so here justice, the fundamental necessity of a sound and stable political state, is lifted out of the conflict of mean and selfish motives, in which it must eventually go down, and is set on high as a matter in which the righteous God is supremely concerned. In this, as in all things, Israel was called to a lonely eminence of ideal perfection by the character of the God whom they were bound to serve. Therefore it strikes us with no surprise that justice is insisted upon almost with passion in Deut. xvii. 20: "Justice, justice shalt thou pursue after, that thou mayest live and possess the land which Yahweh thy God giveth thee"; or that it is made one of the conditions of Israel's permanence as a nation. In chap. xxiv. 17 we read, "Thou shalt not wrest the judgment of the stranger, nor of the fatherless; nor take the widow's raiment to pledge"; in xxv. 1 and 2, "If there be a plea between men, ... then they (i.e. the judges) shall justify the righteous and condemn the wicked." For any other course of conduct would bring guilt upon the nation in the sight of Yahweh; and how jealously that was guarded against is seen in the sacrifice and ritual imposed for the purification of the people from the guilt of a murder the perpetrator of which was unknown (Deut. xxi. 1-9). Unatoned for and disregarded, such a crime brought disturbance into those relations between Israel and their God upon which their very existence as a nation depended; and the disregard of justice, where wrongs were committed by known persons and were left unpunished, was of course more deadly. So the author of Deuteronomy looked upon it; and the prophets, from the first of them to the last, brand unjust judgment, the perverting the course of legal justice, as the most alarming sign of national decay. The righteous God, with whom there was no respect of persons, could not permanently favour a people whose judges and rulers disregarded righteousness; and when destruction actually came upon this people, it was proclaimed to be God's doing, "because there was no truth nor justice nor knowledge of God in the land."

Nowhere in the world, therefore, has the demand for justice been made more central than here, and nowhere has injustice been more passionately fought against. Nor have the sanctions binding to a pursuit of justice been at any period more nobly or more vividly conceived. In this main point, therefore, Israel's law stands irreproachable--marvellously so, considering its great antiquity. But we have still to inquire whether any really adequate provision was made for the general and inexpensive administration of justice. To take the latter first, law was in old Israel probably as cheap as it would be in the primitive East to-day, if bribery were to be stopped. To advise as to the sacred law, to plead for justice according to it, did not then, and does not now in similar circumstances, belong to any special professional class who live by it. The priest could be appealed to freely by all; and the heads of fathers' houses, as well as the tribal heads, were, by the very fact that they were such, bound to give judgment among their people, and to appear for and take responsibility for them when they had a cause with persons beyond the limits of the particular families and tribes. Justice, consequently, was in ordinary circumstances perfectly free to all.

And from a very early time earnest efforts were made to make it equally accessible. At first, when the people were in one army or train, before they came to Sinai, an overwhelming burden was laid upon Moses. As the prophet of the new dispensation all difficulties were brought to him. But at Jethro's suggestion, as JE tells us in Exod. xviii. 13 ff., and as Deuteronomy repeats in chap. i. 16, he chose men of each tribe, or took the heads of each tribe, and set them as captains of thousands and hundreds and fifties and tens. Not improbably this was primarily a military organisation, but to these captains was committed also jurisdiction over those under them. In all ordinary cases they judged them and their families in the spirit of Yahwism, as well as commanded them; and in this way, as has already been pointed out, the customary law was revised in accordance with Yahwistic principles. Justice too was brought to every man's door. The only question that suggests itself is, whether these captain-judges were the ordinary family and tribal heads, organised for this purpose by Moses. On the whole this would seem to have been so, and it may well be that Jethro's suggestion had in view the danger of ignoring them, as well as the burden which Moses' sole judgeship laid upon him. But with the advance to the conquest of Canaan a new situation emerged, and the probability is that more and more, as the tribes fell into entire or semi-isolation, the tribal organisation in its natural shape would come to the front again. Deuteronomy, however, tells us little if anything of this. In the main passage regarding this matter (xvii. 8-13), where provision is made for an appeal to a central court, the legislation is entirely for a period much later than Moses. Like the law regarding sacrifice at one altar, the judicial provisions of Deuteronomy seem all to be bound up with the place which Yahweh shall choose, viz. the Solomonic Temple in Jerusalem. We may consequently conclude that the judicial arrangements to which Deuteronomy alludes existed only after the Israelite kingship had been for some time established at Jerusalem. We have no distinct evidence for the existence of a central high court in David's days; and from the story of Absalom's rebellion we should gather that the old, simple Oriental method still prevailed, according to which the king, like the heads of tribes, families, etc., judged every one who came to him, personally, at the gate of the royal city. But Samuel is said in 1 Sam. vii. 16 to have annually gone on circuit to Bethel, Gilgal, and Mizpah. According to the school of Wellhausen, nearly the whole of this