LAW AND RELIGION
Deuteronomy 12-26

WITH this section (chapters 12-26) 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 molded 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 (chapter 1., 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. 25. of "The Sacred Books of the East." as are followed, in the critical commentaries on the Old Testament law codes. Pages 67, 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 popularizing 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, moralized, 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. 53.) 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, chapter 20, 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 honorable 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 externalizes 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 denationalizing 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 fulfillment 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 7 he gives us quite another conception of the Mosaic law. 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 fulfillment which it was intended to have. It presses home too the moral ideal upon the man with extraordinary power, and marks and emphasizes 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 sympathized 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 favoring the critical view St. Paul leaves it without any fragment of real support.

Our conclusion is, therefore, that the anti-nomianism, 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.