Chapter 5: The Theory of Law
The concept of the wise men, that there is pervasive throughout the world and immanent in man a mysterious urge toward better things which they called the Wisdom of God, had a long sequel in the history of our thinking. It was taken up by the authors of the Books of Ecclesiasticus and the Wisdom of Solomon. The former identified the divine wisdom with the Torah. In this we are not to see an excess of legalism but, on the contrary, his high appraisal of wisdom: it contained all the best in human life; it was the revelation of God. But, since this latter function was fulfilled by the Torah, then the conclusion was inescapable that the two were one and the same.
The author of the Wisdom of Solomon gave the concept a different turn, not less significant for our purposes, although at first glance one is prone to dismiss him in disappointment, for he adds little to the thought of Proverbs, merely incorporating certain Stoic phraseology into his discussion. Yet the meaning of this will be recognized. The author, and perhaps Jewish thought in general at that time, recognized the intimate relationship of the age-old speculation of the Orient to that of Greece; both had come to express in differing terms but in essential unity the conviction that human life is infused with a pervasive entity which is more than human, finding its ultimate origin and nature in the being of the universe.
But, further, the thought in the Prologue of the Gospel of John is almost in its entirety a recapitulation of the description of wisdom in the Book of Proverbs. True, the latter does not emphasize the life-giving powers of wisdom, though this is not foreign to its thought, and some passages approximate such statement (3:18, 22; 4:-13, 22; 7:2 – 8:35). Likewise, Proverbs does not employ the symbolism of light; but how negligible is this difference becomes apparent in the fact that the writer’s prime concern in the description of wisdom was with human enlightenment. And as the Christian writer advances to his doctrine of the incarnation, he goes beyond Proverbs, but still only in application of the principles contained therein. There is no need to seek in Greek speculation for the origins of the Prologue, for it is practically all contained in the writer’s Jewish heritage, whether or not his thinking was stimulated by the Greek ideas. But Christian indebtedness to the great Jewish philosopher in the Book of Proverbs does not stop here; his thought has penetrated the very center of Christian theology. When Paul speaks of Christ as the power of God and the wisdom of God (I Cor. 1:24), when he presents him as the medium of creation (Col. 1 :16), when he mentions wisdom, understanding, and knowledge as divine gifts to the believers, and when he formulates his doctrine of the preexistent Christ who emptied himself to live among men (Phil. 2:6—8), it is clear that he is carrying over the thought of Proverbs into his concept of the person of Christ. And through him it has permeated subsequent Christology.
It is clear, however, that the idea of Ecclesiasticus confronts us with a new aspect of Hebrew thought. And a moment’s consideration shows that the mood of the Wisdom of Solomon, also, and back of both the notable thought of Proverbs, carry the same implication. A pervasive quality in human life which everywhere sets before all men a standard of better conduct and ideals—here is clearly that concept which has played a very large part in the social and political life of the Western world under the name of natural law. It is commonly attributed to Greek speculation, and beyond a doubt it was given notable discussion by them. Yet the mere formulation of a definition shows that it was well recognized among the Hebrews; the course of our thought already has come upon it but now demands serious study of the matter.
Natural law has been described as “a supreme unifying, controlling power manifesting itself in the universe at large. In so far as men are men they possess common elements; and in their political and social life those elements inevitably emerge and are recognizable in custom and law . . . Such natural law represents the permanent portion of human law in general, and it is prior to and superior to positive legislation, which is only a supplement thereto.” It will be observed that the idea, then, looks in two directions. It comprehends the universal elements in the laws of all peoples, in “positive law” according to the terms of the definition. But beyond and subsuming this is the invisible, unwritten law, the universal sense of right which has reality only in human thought and ideals, but expresses itself in a mood of judgment upon positive law as well as in just and right action that transcends legal requirements. It will be apparent, then, that Ecclesiasticus’ identification of the divine wisdom with the Torah is a statement of the anterior relation of natural law. For him it has absorbed positive law: the social and religious legislation of Israel rests upon, rather is identical with, universal principles, universally recognized wherever men pay heed to the leadings of wisdom. But Proverbs 1—9, Ecciesiasticus, and the Wisdom of Solomon are all late bodies of literature; even the first is certainly well within the period vaguely spoken of as post-Exilic. Yet it is important to keep in mind the situation already emphasized—that the speculation of Proverbs is rooted deep in the Orient: it is thoroughly Hebraic. And although the other two come from a time when Hellenism was admittedly making a profound impression upon Jewish life, marks of which are obvious in the Wisdom of Solomon, yet they likewise are of the Hebrew genius and stream of thought. The concept of natural law here expressed is Israel’s own achievement; its relation to that of Greece must be sought in other directions than one of dependence. And evidence is abundant that Israel recognized and discussed the matter in times when it lies beyond reasonable consideration to postulate influence from the West.
Israel was early impressed with the regularity of nature, as doubtless even primitive man likewise. The personal concept of the world and its phenomena then prevalent would seem to weaken this conviction, introducing an element of volitional caprice. But observed facts could not be evaded even on the grounds of religious presupposition; for whatever reason, nature was notably regular. In Israel’s orthodox thought, this was an evidence of the grace of God: he chose so to order his world for the benefit of man. The promise was of divine grace that,
While the earth remaineth,
seedtime and harvest, cold and heat, summer and winter, and day and night,
shall not cease [Gen. 8:22].
The same thought, qualified only by some doubt of the accuracy of our received text, is expressed in Job 10:22. Some unknown writer, commenting on the gloomy land of the dead, mentioned as one of its most terrifying aspects that it had no order. The implication is clear: by contrast, the regularity and system of the known world, making possible planning and purpose in human life instead of rendering it the bauble of caprice—briefly, the fact that this writer recognized the world to be an ordered cosmos made it for him a land of the living. Somewhat similar was the idea formulated by Jeremiah in his exhortation of his contemporaries:
Let us now fear the Lord
who giveth us the rain
the early and the latter, in its
who preserves for us
the appointed weeks of harvest
Even the animals, it was believed, obey a law immanent in their being:
The ox knoweth its owner
and the ass its master’s crib [Isa. 1:3].
The stork in the heavens
knoweth her appointed times;
the turtledove and the swallow and the crane
observe the time of their coming [Jer.
Yet we do well to apply these utterances cautiously; for the two latter are used in rebuke of the speakers’ contemporaries, who, it is alleged, follow no such immanent principle. And Jeremiah’s exhortation that ascribes the cycle of the seasons to divine activity is prefaced with the flat statement that his contemporaries pay no regard to this view. And, indeed, our knowledge of Israel’s concept of the source of fertility shows that the belief in Yahweh as the giver and guardian of the increase of flock and field was hard won only through the struggle of a succession of prophets. From the time of the entry into the land, the people had accepted somewhat fully the Canaanite theology which credited Baal with this bounty. The theological framework of the Book of Judges would have us believe that prophetic opposition to such infidelity arose contemporaneously—and the claim is plausible—but the earliest actual incident on which we can depend is the conduct of Elijah through the drought and the culminating contest on Mount Carmel (I Kings 17—18). It is apparent that the theme of this story is the power of the Lord to withhold the rains and then to give them when the repentant people recognize the futility of faith in Baal.
However, a hundred years later, as attested by the utterances of Hosea, and still later, by those of Jeremiah, the faith in Baal as the source of fertility was still so prevalent as to amount practically to the popular religion of Israel. And this situation becomes meaningful for our present problem in the light of the well-known cultus of Baal. The annual cycle of rites commemorating the death, and then the resurrection, of the god, it is freely recognized, were magical. This stratum of Israelitish thinking was at the far extreme from the sense of an ordered regularity in nature expressed in passages of which those cited above are typical. For the popular belief was that the magical rites were essential to the alleged resurrection of the god, that is, to the regular cycle of the seasons. Far from believing in a fixed order of nature, the people conceived the only fixity and dependability to consist in a world of magic, for the operation of some part of which they possessed the secret. And, in this sense, they themselves were custodians of nature and its changes. Without their co-operation, neither magic nor the gods nor any other conceivable power would bring back the season of growth and reproduction.
This conclusion seems to carry us still farther from any sense of order in nature. Yet a moment’s consideration dispels the illusion. Results in the form of fertility could and would come only as men voluntarily chose to perform the necessary magical rites, but the fact to be firmly grasped is that the world of magical powers stood constant, whether or not man invoked it. It would always react in one certain way to the performance of the proper rites. In that fact, as it was believed to be, lay the constancy and predictability so notably lacking from the capricious gods. Further, this power was probably thought of primarily in impersonal terms, although there was a steady tendency to identify it with one or another of the gods—in Israel, obviously, with Yahweh. It was greater than the gods, for the distinction of Thoth in Egypt and of Ea in Babylonia was that these each possessed powerful knowledge. The reply of Ea to Marduk’s frequent consultation is familiar to every student of the ancient East:
“What I know, thou knowest also, my son. Go”—. and then there follow specific instructions for magic rituals. These gods knew how to invoke and vitalize this immense world of force that was not of themselves or of the other gods but could be employed by them for chosen purposes.
The prevalence of such concepts in Israel is apparent, then, in the vogue of the fertility rites. But it was by no means confined to the common popular level with which we associate this cult. It pervaded a wide area of Hebrew thought, even making its impress upon what we may call the orthodox religion. A notable illustration of this is the concept that the prophets were magicians. Such is clearly the implication of Elijah’s conduct in the raising of the widow’s son (I Kings 17:21), as of Elisha also in the parallel incident (II Kings 4:31—35). Their procedures were patently magical. Such, too, must have been the understanding of Jeremiah’s famous symbol, where in the presence of dignitaries of the city who had been invited to witness the ceremony, he solemnly broke a pot and declared that in such manner the Lord would break Jerusalem (Jer. 19:10—Il). It is difficult to conceive of action which to his audience would more clearly declare itself as magical: this was no innocent speaker telling of things which he believed would come to pass. He was working in occult powers and, by his own volition through his ritual of smashing, was bringing about that smashing of the city, which he foretold. How far Jeremiah himself shared this view it is difficult to say. Much can be adduced on the negative side; but if he was not at least a little interested in posing as the wonder-worker, then he was notably inept in his choice of symbols.
And what, then, of the prophetic symbolic acts as a whole? A careful examination leads to the conviction that they were not the innocent illustrations they are commonly supposed to have been. Ezekiel’s drama of the captured city (4:1—5:3; 24:1—lI) and his numerous similar performances, although regarded by the populace as merely good entertainment, had, for the prophet, as for several of the ancient commentators on his work (e.g., 4:4—6), some positive worth in accomplishing the ends he predicted. The prevalence of such belief among the populace is attested by the plea of the officer who went to bring in Micaiah ben Imlah at the request of King Ahab. He told how the court prophets had promised a happy outcome of the projected campaign against Ramoth Gilead and continued: “Let thy word, I pray, be like the word of one of them, and speak thou good” (I Kings 22:13). Now it is apparent that he had no thought of Micaiah’s deceiving the king with pleasant assurances which could prove only delusive. On the contrary, he was clearly requesting that the prophet would speak the powerful word which would insure success for the project. For him, Micaiah was no mere predictor; as prophet he was in control of the mighty forces with which man’s life is surrounded and could with a word direct them to chosen ends. In just such a role of wonder-worker Isaiah presented himself in his challenge to King Ahaz to ask a sign in the heavens above or deep as She’ol beneath (Isa. 7:11). The words of the offer indicate that even if the king should demand a repetition of Joshua’s famous miracle at Ajalon (Josh. 10:12—14), Isaiah considered himself possessed of the power to perform it! Such, too, is the view of the later writer who relates the prophet’s dealing with the sick Hezekiah: the shadow of the sundial went back (Isa. 38:8). In all such cases the intimate relation between the prophet and the Lord is apparent in the story, and undoubtedly this was the orthodoxy of thought as it developed. These wonders were the working of the
Lord through his representative. Yet this will not explain all the incidents. The stories of prophets of the ninth century and earlier reveal a basic concept of their office only by later thought reduced to that of spokesmanship for the Lord. In the phraseology of this time the prophet was a “man of God”; and the Hebrew idiom is much richer than this English equivalent. It is harmonious with the significance of these stories that the prophet could in his own right perform wonders; he controlled superhuman forces.
The close relationship of this thinking with the pervasive faith in the power of the blessing and the curse is immediately evident. Once again these powerful formulas were commonly pronounced in the name of the Lord, yet their more remote sanction speaks through many passages. Doubtless it would be of little cogency to point out that in some cases there is no invocation of divine action; this could well have been implied. But equally, if one is to argue along this line, it is possible that such invocation, when employed, is secondary and represents only a later usage. However, blessings such as those of the patriarchs, which it is apparent “fulfilled” themselves in the course of Israel’s history, leave the strong impression upon the reader that here was magic pure and simple. The old dignitary was pronouncing formulas which in and of themselves would work out, even across centuries, the destiny of the nation or of its separate tribes. Now, if this is correct, it is a matter of high importance to our quest, for, in addition to demonstration of the might and prevalence of magic in the being of the world, it shows that it was also to some undetermined extent the ruler of human destiny. This is almost equivalent to a concept of fate, save only that it may have been less inexorable in its control of man’s life.
Intimately related to the blessing and curse in both genius and sanction was the oath of attestation. It too possessed potentialities of results in far distant times. From the wealth of illustration we cite only the dire result of the breach by King Saul of Joshua’s oath to the Gibeonites (II Samuel, chap. 21), and the nation’s faith that its possession of the land was in fulfilment of the oath sworn to the patriarchs centuries before. But this oath was sworn by the Lord! Here is an astonishing situation. Oaths and agreements between men were commonly attested in the name of the Lord—or such became the usage; he was invoked to watch over the spoken word and insure its faithful performance. On the surface, this appears to be a recognition of Yahweh as himself the source of justice and, at the same time, immanent in the pervasive sense of justice. Yet, even so, the act was patently not religious. There was in these cases no supplication, no securing of divine sanction, no waiting upon the will of God. Man spoke and God was obliged to fulfil. It is clear that such was magic, however it may have been cloaked with pious words. But in cases where the Lord himself swears, there is not even a semblance of evasion of the issue. Of course, the devout author of the Epistle to the Hebrews reasons that “since he could swear by no greater, he swore by himself”; but this is decidedly thin as historic exegesis. More convincing would be the claim that the divine oath was but an unthinking carry-over of human practice. Yet even this is not convincing; surely the biblical writers were not so consistently stupid as this would imply! There is no good reason to evade the conclusion that Israel conceived of God’s oath as more binding than his promise, for precisely the same reason as in parallel human agreements: because there was a power watching to compel fulfilment! Obviously such power was not personal; that would be to create a hierarchy of the gods with Yahweh in a menial position. It was force. And Yahweh was subject thereto!
Astonishing as this conclusion may well be, there is related a strange incident which, to say the least, suggests some corroboration of the belief in a supradivine world of power. When the allied armies of Judah and Israel had ravaged the land of Moab, had shut up its king in his capital, and were pressing the siege, the king in despair “took his eldest son who was to reign in place of him, and offered him for a burnt offering on the wall; and great wrath came upon Israel, and they departed from him and returned to their own land” (II Kings 3:27). It is freely admitted that the meaning of the incident is obscure; but a process of elimination indicates an interpretation.
First, the account cannot mean that “there was great wrath in Israel” so that in disgust with the proceeding they went home. Such meaning would have demanded a different Hebrew preposition. Besides, it is inconceivable why they should go home as a result of “great wrath”; this would rather have roused them to vengeance. Then, this wrath that came upon Israel and compelled them to go home could not have emanated from the Moabite god, for he was broken and overwhelmed: he had been doing his best, apparently, in defense of his people, yet the Hebrew warriors continued victorious. Besides, these were operating in the name of Yahweh; he could well be depended upon to deal effectively with any bad temper on the part of defeated Chemosh. And it is out of consideration that it was Yahweh’s wrath that sent his people home. Why should he have been stirred against his own armies by a pagan act of a pagan king? There is no apparent escape from the view that the “wrath” emanated from some source other than the gods concerned. Further, this source was so mighty that the devotees of Yahweh, operating under notable marks of his approval (vss. 9—20), abandoned their success at the moment when final victory was within reach, and went home. The sacrifice of the heir-apparent was a mighty magical rite, against which even Yahweh was impotent.
But, indeed, all this is less heretical from accepted “critical” views than may perhaps appear. For the concept of what we have come to call the taboo is just the thing we have been describing. There, too, a tendency existed to draw its operation into the realm of Yahweh’s authority. The herem upon Jericho was pronounced in his name and was guarded by him (Josh. 6:17, 7:11— 12). The temerity of Uzzah was punished by Yahweh himself (II Sam. 6:6—7). The sin of Nadab and Abihu brought consuming fire from him (Lev. 10:1—2). Yet it is but the orthodoxy of scholarly opinion that the realm of the holy was one of impersonal force that operated automatically and independent of divine volition. And the carry-over of such ideas into the priestly legislation, the natural custodian of concepts of, and dealings with, the occult, is well illustrated by such a ritual as that of the heifer whose neck was broken in an untilled valley where ran a perennial stream, every detail of which declares its magical character (Deut. 21:1—9). But, as is well known, magic persisted to find expressions in the Psalter likewise.
To recapitulate: there are various lines of evidence that Israel believed in the existence of a power supreme above gods and men, which could be employed in some undetermined measure by both, through rituals and formulas of the sort that we call magical. Although not primarily ethical, it possessed qualities that are of some such implication. Its dominant feature was constancy. Over against the uncertainties of capricious deities, it was always the same. Those who knew how to employ it could always depend upon its effectiveness. One aspect of this approximates moral quality: it was guardian of the solemn agreement; this suggests the attribute of truth, but in reality it was probably no more than a manifestation of the constancy already mentioned.
Such as it may have been, then, here was Israel’s simplest concept of natural law. It was a force operative upon gods and men which could enjoin truth and faithfulness to covenant. It did not compel, however; and, presumably, divine freedom was not impaired. One might freely ignore this world of force and shape his conduct indifferent to it. But, like a moral order in the universe, or like law in human society, it imposed inevitably the consequences of defiance, and through their unpleasantness induced conformity. Its remoteness from the orthodox faith and its intimate relation to earlier forms of belief declare themselves. Still it is to be noted that the divine oath, for example, was emphasized by the relatively late and highly developed Book of Deuteronomy. Further, manifestations of these beliefs are found in the prophets and in the ritual literature through various periods down to the close of the Old Testament. Thus it is clear that a certain dualism ran right through Israel’s concept of the world. Side by side with a dominant and growing faith in the universal rule of Yahweh, there existed a belief in a realm of magic that lay outside his power. But, indeed, this is not remarkable, since the same situation persists to the present. Large numbers of more or less devout people, and even certain branches of the church, cling to beliefs and practices which are essentially magical and hence deny the supremacy of God. So while we recognize a contradiction in Israel’s thinking, here we can only trace the expression of the concept of a moral order in the world without trying to resolve the problem of how completely it commanded the best Hebrew thought. But certainly a growing sense of moral government was intimately a part of the faith in the universality of Yahweh’s rule as a God of righteousness.
What Israel’s original concept of government may have been, it is difficult to say. The earliest rule by the elders of the community and the essentially democratic freedom inherited from nomad society would seem to imply a respect for inherited custom and some more or less crude sense of justice. Certainly the traditions that are presented in the Old Testament as the early history of the nation reveal a sense of law beyond and supreme above mere individual whim. But the validity of such representation is precisely our problem. It carries some plausibility. But, on the other hand, the older strata in the Book of Judges, which are among our earliest genuinely historic sources for Hebrew society, provide disturbing considerations. A later writer generalizes about the period that “there was no king in Israel; every man did what was right in his own eyes” (Judg. 21:25; cf. i8:i, 19:1), an explanation which, in its context, means nothing but social anarchy. And certainly the conduct of the Danites at Laish, their treatment of Micah, and the whole incident of the Levite’s concubine and its sequel (Judges, chaps. 18—21) speak eloquently of a complete lack of moral restraint. The standard of conduct was desire, and the means to attain one’s ends was physical, then political, power. The life of the strong was the happy life, since it was one of realized desire. The folk tale of Samson, whatever else it may originally have been intended to teach, certainly expresses an ideal of the time; he was such a one as the writer wished he might have been: able to buffet and toss about his foes, to make sport of their retribution and plots, to take what he would, and to consort with harlots at his desire. Such was a real life for a man! And there clearly we have the “natural law” of the time of the Judges: it was the law of the jungle.
We may not suppose that these heroes themselves critically evaluated and, with ethical self-consciousness, chose such courses. But Israel’s thought on the problem certainly dates far back into an early period, for even in these stories, notably those of Samson and of Abimelech, judgment is passed upon their principals’ conduct. It was in a later age that thinkers set this sort of procedure over against principles of equity and voiced their condemnation. Yet we may with confidence assert that, for the time of the Judges, such law as existed in established usages like blood revenge, and in certain tribal and family customs, was not sufficient to supplant the belief that might constituted the supreme socially valid norm, qualified mainly by the restraining magical powers of the oath and curse. Possibly a more complete understanding of the beginnings of Israel’s religion would compel the postulation of better ideals even through this rough period. But certainly the stories themselves, our one best source for the time, lend potent support to the reiterated statement, already quoted, that every man did what seemed right to himself.
Nor can we trace the causes and the course of evolution a public sense of law, but only point out a few relevantf acts. Israel inherited the law of the Canaanites, and her life among their relatively cultured communities must have exerted a moderating influence upon primitive violence. The kingship, too, in spite of the obloquy it receives from certain biblical writers, clearly entailed a national law that all must recognize. Such is the implication of the comment on the period of the Judges just now quoted; such, too, is the impression we derive from glimpses of David’s judicial administration. It is significant, also, that in this period we find voiced a strong sense of the restraining power of social practice and norms:
“It is not so done in Israel” (II Sam. 13:12).
Yet it must be recognized that the supremacy of positive law was deeply imbedded in Israel’s concept of the monarchy. Since the kingship was historically a projection of the rule of the Judges, it was inevitable that an ideal of the finality of power should carry over into the conduct of the kings. Such is the summary of royal prerogatives attributed to Samuel when the people proposed a monarchy; he warned, “the king . . will take your sons and appoint them to himself for his chariots and to be his horsemen, and they shall run before his chariots.
He will take your daughters to be perfumers and cooks and bakers. He will take your fields and your vineyards and your oliveyards, the best of them, and give them to his servants” (I Sam. 8:11—14).
The passage, it is recognized, is late, but its evidence for the character of the Hebrew monarchy is not less reliable, for this is how we see it actually working itself out. The oriental ideal of the absolute monarch who “could do no wrong” invaded Israel’s court in the days of David, if, indeed, it was not already manifest under Saul; it became supreme through Solomon’s reign; it was the impelling principle in Rehoboam’s folly at Shechem (I Kings 12: 14). And though it suffered a solemn check in the revolt of the northern tribes, yet even these devotees of freedom soon found themselves under a ruling class even more irresponsible than that in Jerusalem. We need here cite only the Naboth incident (I Kings, chap. 21) and recall the social oppression against which the prophets of the eighth century spoke to realize that Israel, north and south alike, gave itself officially to the theory that power is irresponsible, since it is the ultimate source of law. The political aspect of this and the struggle for responsible government we must postpone for a later section; our interest now is to see how completely positive law possessed the ruling classes in the two kingdoms.
Two incidents of the period of the kings are highly significant of thought in the time. They are the Bath-sheba and the Naboth episodes. In their highhanded indifference to human rights and in their bold arrogation of absolute royal authority, they are intimately related. But both are highly important also as steps in the rise of Israel’s sense of a higher law, for in both a prophet intervened to rebuke the monarch in the name of the Lord. More simply, he denied the king’s claim of final authority and announced instead the supremacy of the will of the Lord, a law that bound the reigning monarch not less than his humblest subject.
This is the background of the work of Amos, whose significance for this line of Israel’s thought has already been suggested. We saw that his enlarged concept of the nature and authority of God evidently was rooted in a feeling of common human rights, pervasive beyond the political and religious boundaries of the time. This principle was for him embodied in the person of the God of Israel. But in at least one notable passage he implies the existence of such a force for good existing in and of itself. He says: “Do horses run on the rock, or does one plow the sea, that you should turn justice into gall and the fruit of righteousness into wormwood; you who rejoice in a thing of naught and say, ‘Have we not taken to us horns by our own strength?’” (6:12—13.) A certain propriety of conduct, he says, is freely recognized in common affairs, but in religious matters his contemporaries outrage the common sense of mankind with their moral and religious aberrations. Ordinary human good sense, he implies, ought to lead one to just conduct and right religious attitudes.
Israel’s thought was in general so highly personalized, so fully drawn into the belief in a universal Person who pervaded all and was the moving force in all, that it is important, before we turn to examine the implications of this, to recognize fully the existence of a more humanistic concept of natural law, such as Amos entertained along with his deep faith in divine activity. Even more notable in this regard was the wrestle with the problem of theodicy, which, it is apparent, implies a standard independent of God and in some way beyond him—a standard to which his conduct is amenable just as that of man. It is scarcely necessary to mention that the Old Testament, particularly in its later expressions, was much concerned with this problem of the justice of God’s rule of the world. Obviously it was paramount in the strange theology of Ecclesiastes. His God was judged by human standards of right and was found wanting. He had guarded his privileges in a most selfish way; further, his major concern seemed to be his own enjoyment, while man, striving and seeking, was circumvented at every turn by this cosmic might, and was granted only minor concessions in order to keep him occupied. Man’s chief concern in relations with him should be to guard his steps and be cautious of his words, for rash words may get one into untold trouble. Where Ecclesiastes found basis for his theory of ethics in such a philosophy is not stated, although it becomes apparent by careful study. True to the tradition of the Wisdom Movement, his thought was thoroughly humanistic, rooted in certain convictions as to the nature of the good life and the desirability of specific courses of conduct. He sought to know whether there was any good thing for man; and his conclusion was that the good thing was what would provide abiding satisfaction. So he gave himself to all sorts of conduct without let or hindrance from traditional scruples. Yet it is notable that through this experience, dominated as it seems to have been by a self-interest as crass as that which he ascribed to his God, he paid unconscious tribute to common social ideals of justice and humanity. He was concerned about the rampant injustice of his time, although he put the matter off with the reflection that nothing could be done, for the total of human misery was a constant quantity. He remarked on the selfish hierarchies of officials, each preying on the one below, and, finally, all on the poor peasant. He spoke with apparent censure of the ways of absolute monarchs, before whom subjects could only cringe and watch astutely for opportunity to serve themselves at their expense. By contrast he praised the poor but wise youth, fated to continue to the end in his lowly state, yet better than the powerful monarch whose self-serving would leave at his death not a single person to mourn his going. The wise man who delivered his city by his wisdom when military might had failed: there was something that Ecclesiastes could and did respect. He was a man of deep social feeling, which indeed was a fruitful source of his pessimism by reason of his despair of improving matters. Indeed, at this point he confronts the central problem of a theory of natural law, the existence of conflicting standards of conduct. These selfish rulers acted in accord with universal human impulses. But Ecciesiastes had no thought of commending them on this ground and condoning a return to conditions of the days of the Judges. For over against such norms of life there existed also an instinct for better things, a sense of justice rooted not less deeply in human nature. It would seem, then, that these concepts lie close to the basis of Ecclesiastes’ whole system of thought. His norm was the common human feeling for justice, though only vaguely defined. By it God himself must submit to judgment.
But the treatment of this theme in the Book of Job is notable for its projection of the antithesis of might and right into the conduct of God himself. In varying expression this is found throughout the book. The speeches of Yahweh spend their eloquence in emphasis upon the irresponsible might of God. His power is such and the complexity of his working so far beyond human understanding that mere man may not question his ways. The inquiring spirit can in the end only confess his temerity:
I have uttered that which I understood not,
things too wonderful for me, which I knew not. . .
Wherefore I abhor myself,
and repent in dust and ashes [Job 42:
The Elihu speeches are not far from the same position:
God “giveth not account of any of his matters” (33:13).
Still, these writers are not unconscious of the problem; they undertake to demonstrate that God will not do wickedness (34:10 if.) and are shocked that Job, presumably, claims his righteousness to be greater than God’s (35:2). In this regard, the Elihu speeches reveal the familiarity with the Dialogue for which they are well known. For Job’s moral independence outraged the traditional piety of the friends. He refused to bow in contrition before transcendence; on the contrary, he asked insistently: “Why should God do this ?” For him, it would not suffice that absolute might sat enthroned at the center of the universe; such power must itself answer to common standards of equity, not less than the lowliest man. On this basis Job sought a meeting with his great adversary where he might argue the justice of the issue:
Behold now I have set my cause in order; I know that I am righteous [Job 13:18].
Even more to the point is his querulous taunt of cosmic might, which he implied should be at least as just as man:
Is it good to the that thou shouldst oppress,
that thou shouldst despise the work of
Hast thou eyes of flesh,
or seest thou as man seest?
Are thy days as the days of man,
or thy years as man’s days,
that thou inquirest after mine iniquity and searchest after my sin
although thou knowest that I am not wicked?
But there is none than can deliver out of thy hand [Job 10:3-7].
Such was Job’s constant complaint: he had done no wrong, yet affliction came upon him. Little wonder that his bold spirit went the full length in condemnation of divine irresponsibility before at length he recoiled from his own excesses, realizing that his life was not all recorded in terms of misery:
Thou hast granted me life and loving kindness;
and thy visitation hath preserved my spirit [Job 10:12].
Yet at the depth of his black mood he exceeds even Ecclesiastes in denunciation of an unethical God:
As for strength: he is mighty;
as for lustice: who can call him to account?
I am upright; I do not regard myself; I despise my own life.
It is all one! Therefore I say
upright and wicked alike he consumes [Job 9:19, 21-22].
But the great difference between Job and Ecclesiastes was that the former clung to his faith and worked through to a reasoned position where he could hold that the principles of right, which he honored as a man, rule correspondingly in the conduct of God.
Yet it will be apparent that, however attractive such views may have proved for the philosophic temper of the wise men, the great mass of Israel’s thought, if we may judge by the prominence given it in the literature, was based on the conviction that the source of ethics was in the nature and will of God. And the nexus of the two seemingly contradictory views is revealed by the great thinker to whom we have already frequently turned—the author of chapter 8 of the Book of Proverbs. In his concept of wisdom as the vitalizing power in man’s restless urge toward better things, which yet was with God before creation and by him was implanted in the nature of things, there is, we have noted, the clear implication that in such wisdom man gains his truest insight into the essential nature of God. The Hebrew philosopher would have agreed heartily with Socrates in an answer to the latter’s famous question. Right was not right because God willed it; he willed it because it was right. For his nature was righteousness.
It is, then, along the line of the growing concept of the universality of the rule of Yahweh and the enlarging of ethical thinking within Israel’s religion that we are to trace the advance of a sense of universal standards of right. And the triumph of this concept, apparent in the prophets’ condemnation of injustice within Israel, is nowhere better manifested than in the revulsion they felt toward the irresponsibility of the aggressive empires. Isaiah held up to scorn the boast of the Assyrian:
By the strength of my hands I have done it,
and by my wisdom, for I have understanding.
And I have removed the bounds of peoples
their treasures I have robbed;
and as a mighty one I have brought down those enthroned.
My hand has found, like a nest,
the wealth of the peoples;
and as one gathers eggs hidden away all the earth have I gathered. .
Does an ax boast against the hewer,
or a saw make itself greater than its user? .
Therefore will the Lord send
upon his fat ones leanness [Isa. 10:
Not less effective is the brief note of Habakkuk in his account of the violent aggression of the Chaldean foe, the culmination of whose reprehensibility was that
from himself proceed his standards of right and dignity . .
that reprobate, whose own might is his god! [Hab. 1:7, Ii.]
It is important to realize that in these concepts Israel’s thought of natural law attained its characteristic form.
The notion of a universal directive force, perhaps impersonal, but in any case independent of the power of the Lord, was but incidental. Emphasis upon it has been necessary in order to insure it adequate attention as a genuine phase of the total of Hebrew thought and to show the measure of ultimate attainment; for the conviction that Israel regarded the world and all within it as dependent upon the will and activity of God has become axiomatic in our minds to the exclusion of other possibilities. Nor is this a serious error, for the outstanding aspect of Israel’s thinking about the world was its personalism; and not least in their thought of a universal law valid and operative in the lives of men did the Hebrew thinkers postulate the personal reality and activity of their God. The supremacy of this faith among the prophets is obvious. But likewise it was the view of the wise men. The “Wisdom of God,” of which they made so much, was not a detached, impersonal entity; it had emanated from God: more simply, it was God himself at work among men.
This, indeed, is the distinctive contribution of Israel’s thinkers to the discussion of natural law. For them, it was not an irresponsible force that in some blind way, however benignly, influenced human impulses. It was God in his holiness and righteousness revealing to sinful man his will and their high destiny and only happiness in obedience thereto. From this there resulted all that is characteristic of Hebrew ethics: its white heat of urgency, but also its transcendentalism that set righteousness far beyond human attainment yet held it as a compelling ideal toward which one must strive and aspire.
The moral passion of the prophets has become axiomatic; they were concerned with human well-being, it is true, but no such urgency of appeal could have arisen from human considerations. The compelling force that took possession of them “with strength of hand” was the holiness of a personal God who was very near and who sat in judgment upon the unrighteousness of man. And this, for Israel, was natural law! It was something more than a “supreme unifying, controlling power manifesting itself in the universe at large.” It was God himself in his supremacy and holiness saying, “This is the way; walk ye therein.”
The role of this concept in shaping positive legislation as well as in criticism of existing laws will be immediately apparent. Nonetheless, it is a noteworthy fact that, until comparatively late times, ethical speculation and sanctions had no recourse to codified law. The ultimate source of right and justice reposed in unwritten codes:
more plainly, in the instincts and impulses that stir in the hearts of men. Doubtless the monarchs and other practical folk were ready in citation of the codified legislation of the land, but, for those who gave thought to the matter, the final rule of the hearts of men lay far deeper in a universal norm. The function of this in the legal history of Israel is evident in the work of the prophets. It stirred, too, as an uneasy conscience in the several reforms of the period of the monarchy, even if these were largely cultic. Also, the Book of Deuteronomy is, per se, eloquent testimony to the reality of the movement, for, though it purports to be a “second law,” it was in reality a revision of the ancient social legislation that in considerable part Israel had taken over from the Canaanites. So we may safely conclude that an independent attitude of criticism toward the law of the land was widespread among thoughtful men. But, excellent as this is for our present purpose, a further issue forces itself upon the attention. Natural law can exist at all only if it is universal. The crux of the problem is how far Israel’s thinkers applied their accepted standards to the laws of foreign nations, or believed that among those peoples there was a stirring such as manifested itself in Israel’s own thought.
Investigation of the question is beset with the obvious difficulty that Israel’s writers were primarily concerned with Israelite standards and conduct; to the life and thought of foreigners they gave but minor attention. But at least the first eleven chapters of Genesis promise material for our purpose. The heroes and other characters of this narrative may in some measure have been regarded as remote ancestors, but certainly they were not Israelites; and from the stories certain relevant facts stand out. The authors have not the least doubt that God was known among these non-Hebraic peoples, through revelation of a sort similar to or identical with that later given to Israel. His will was their ultimate law, upholding those standards later established in Hebrew society. Cain should not have killed Abel; the rampant “violence” of the time of the flood cried out to high heaven for retribution; the life and conduct of Noah was a standing rebuke to his contemporaries; the builders of the Tower of Babel were guilty of arrogance; and so forth. Further, the distribution of the peoples of the earth is represented as being in accord with divine purposes; even if not ethically determined, at least it was an expression of that impulse which the writers believed to be the ultimate authority in human life.
Comparable are the results that may be deduced from accounts of Israel’s relations with foreign powers. The Egyptians should not have oppressed the Hebrews; the hard labor of the slaves raised a cry to heaven which in turn brought divine retribution in the plagues and the incidents of the exodus. The lawless oppressions of the Assyrians and Chaldeans were denounced; these peoples outraged all human standards—and made a virtue of it. And, for the smaller nations near Palestine, the threats contained in the first and second chapters of the Book of Amos took their rise in a reaction against unhuman conduct; these peoples had practiced barbarities against helpless neighbors, they had forgotten “the brotherly covenant,” they had enslaved whole peoples, they had been implacable in their hatreds. On the other hand, the implications of the Servant Songs, and of passages that picture a great movement of Gentile peoples to Jerusalem for worship, as well as the claim in the Book of Malachi that from the rising of the sun to its going-down the Lord’s name was great among the Gentiles, all alike indicate recognition of a common human bond among all peoples that rendered foreigners amenable to the same high appeals and impulses as native Hebrews. It will be recognized that we lack formal discussion by Israel’s thinkers of the universality of basic ethical standards; to that extent we are doubtless justified in concluding that the problem was not fully realized. But at least it is clear that they assumed, even if uncritically, the world-wide rule of those standards of right which they themselves honored. The words of Paul again may be quoted as expressive of his people’s traditional thinking: “For the wrath of God is revealed from heaven against all unrighteousness of men . . . because that which is known of God is manifest in them, for God manifested it unto them.”
Yet the problem of natural law looks in still another direction, for within Palestine, through the centuries of Israel’s occupation, there were notably two groups that provide test cases of Hebrew consistency; they were the foreign immigrants and the slaves. The underprivileged condition of both is apparent to every casual reader of the Old Testament. Of the former, however, it can be affirmed that progressive thought refused to leave them to the whims of popular bigotries and suspicions. The concern of the authors of Deuteronomy for the “sojourner” is a notable feature of the book. The prophets likewise urged consideration and fellow-feeling toward this noncitizen populace. But it was the Priestly document that took the final step of legislating equal rights and equal responsibilities for the gerim: “You shall have one law for the home-born and for the stranger who sojourns among you” (Exod. 12:49). The late date commonly ascribed to this legislation and its high authority in postExilic Judaism raise the prescription to a high significance.
The problem of the slave is not so easily handled; for the thinking of today, the widespread and legalized practice of slavery constitutes a very black stain on the social attainments of ancient Israel. And, to make the matter worse, no protest was raised against the institution per se, demanding the equal freedom of all men. Jeremiah, for example, was indignant because recently liberated slaves were illegally repossessed, but he says not a word to the effect that their ever having lost their freedom was a mark of the iniquity of his contemporaries (Jer. 34 8—22). Yet the facts are not so damning as all this may suggest. Slavery in the primitive days of Israel’s history had humane features. The foreign slave, who was generally a captive in war, owed his life to the institution; apart from it he would almost certainly have been slaughtered at the time of his people’s defeat. The enslavement of Hebrews had an economic basis; one accepted slavery when he could no longer win a livelihood. The condition insured at least subsistence, and to this extent it may be considered, like the institution of blood revenge, a progressive social measure for its time.
The ethics of Old Testament slavery thus depended in large measure upon the character of the slave-owner; and there is abundant evidence to show that, in general, the slave enjoyed a status far above what the term suggests to us. Social distinctions are moderated in the simple, immediate relations of rural life. Master and slave, associated together as they were in tasks and adventures in the field, developed some sense of comradeship. A revealing incident, frequently cited in the study of Hebrew slavery, is that of Saul’s consultation with his slave when the two had been for several days searching for lost asses; and it was the slave, not Saul, who had money in his possession to pay a fee to the “man of God.” On the other hand, there were, as always, brutal masters who on occasion beat their slaves even to the point of death.
But the important matter is that Israel’s conscience did not lie supine under these conditions. Legislation was enacted to protect the slave, and in the great legal revision represented by our Book of Deuteronomy these provisions received notable strengthening. But even more indicative of a Hebrew conscience toward this matter is the ground ascribed for such consideration: “You shall remember that you were a slave in the land of Egypt, and the Lord your God brought you out.” “Keep the sabbath day that your male slave and your female slave may rest as well as you.” It is to be observed that provision is not specifically for fellow-Hebrews, but for any slave.
And its raison d’être expresses clearly a sense of common human unity: briefly, a respect for fellow-humans as persons. Beyond this, Hebrew thought on slavery did not go. But it is to be recognized that in this attainment there lay the germ of all future advance. Although Israel’s failure to repudiate slavery is freely admitted, yet three points should be kept in mind: Hebrew slavery was relatively humane; it was regulated and guarded with increasingly humanitarian legislation; and the slave was recognized as possessing certain inalienable rights on the grounds of his being human. The situation was such that we need not hesitate to include it as an aspect of Israel’s thought of natural law.
In course of time that body of literature which we know as the Pentateuch assumed its final shape, and apparently by the fourth century B.C. it was “canonized,” that is, it was accepted as of divine origin and authority. Through the various circumstances that determined its composition there were included certain social codes and much ritual direction, both of which had enjoyed a long history and operation. But now they were endowed with a halo of sanctity. For devout thought, all alike became ipsissima uerba of the will and revelation of God and, as such, of ultimate authority over human conduct. In this fact, then, we are to see the confluence of the two streams of Israel’s law and the termination of the antithesis that marks this line of thinking. Living under foreign rule as they did, subject also to the whims of fallible leaders of their own, the Jews never escaped, in actuality, the problem of positive law; but, for orthodox thought, in the Pentateuch natural law had absorbed and sublimated positive law.
Still, the concept of the unwritten law and its authority continued. It found notable expression in the oral tradition that eventually was codified in the Mishnah. Criticism may smile indulgently at the palpable deception in the claim that this was given to Moses at Sinai along with the Torah, but if we would read the meaning of figurative language, it is apparent that this was but an expression of the sense of a pervasive natural law: the religious impulse and revelation with which the name of Moses was associated was too great to embody itself in written form—not even the Torah was adequate; but it reposed ultimately in the divine impress upon the heart of man. Even in the Old Testament itself, and apparently from a period when the Torah had attained sanctity in Jewish thought, the supremacy of the unwritten law is notably expressed. There are several passages which voice the hope for the future that Israel should then be cleansed of its propensity to sin and transformed into a righteous nation. The following is especially deserving of attention:
Behold the days come, saith the Lord, when I will make a new covenant with the house of Israel, and with the house of Judah, not according to the covenant that I made with their fathers . . . but this is the covenant that I will make with the house of Israel after those days, saith the Lord: I will put my law in their inward parts and in their hearts I will write it; and I will be their God, and they shall be my people. And they shall teach no more every man his neighbor and his brother saying, Know the Lord; for they shall all know me from the least unto the greatest of them [Jer. 31:31—34].
The law written on the heart, not an external law, should rule men’s lives. But it would be a gracious rule: not compulsion, not an infringement of man’s freedom, but its fulfilment. Men would do the right because they most wished so to do. They would recognize the beauty of goodness—would be won by its inherent attractiveness. Here is the culmination of Israel’s thought about natural law: a glorious day should dawn when man’s jungle impulses would atrophy, when right would triumph deep in human nature, and society would pursue its happy course in a state of “anarchy,” of “no law,” because everyone would do the high and noble thing through his love for it, in obedience to the unwritten law inscribed on his heart!
There remains yet one difficult problem of this line of thinking. When the Torah was canonized and the law of God thus became ostensibly the law of the land, there could be no clash between conscience and authority. Yet it is apparent that such a situation never became an actuality of Israel’s life. Even in the period when Jerusalem was under the high priests, the Jews were nonetheless subject to foreign rule; and even if we concede for the sake of argument what notably was not true, that all the officials of the theocracy were high-minded men, still the people were never remote from the problem of what to do in face of a bad law. And even more was this true of earlier ages. A devout answer is immediately at hand. In the words of the apostles faced with some such dilemma, one “ought to obey God rather than man.”
Yet the issue is not quite so simple. Paul formulated the crux of it in his seemingly antithetic saying that “the powers that be are ordained of God.” Apparently the words of Jesus relative to payment of tribute bear a similar interpretation. “Render unto Caesar the things of Caesar.” Both imply recognition that government performs an indispensable function. Without ordered society the bare essentials of civilized life are not possible. Even a bad government provides some measure of security and settled procedure. What then? Are we to weaken the pillars of society by a course of flagrant disobedience of laws that we consider wrong? Or shall we take the opposite course and outrage conscience by supporting a wicked government in the interests of stability? Is there a middle course, and what and where are its bounds?
The revolts instigated by the prophets, notably that of the northern tribes in the time of Rehoboam and of Jehu a century later, were frank acceptance of one horn of the dilemma: direct action for the overthrow of an evil ruler is in harmony with the will of God. But it is notable that subsequent thought repudiated this policy and sought reform within ordered society. The Maccabean revolt, commendable as it seems to us, was likewise given scant honor by the contemporary author of Daniel; it was only “a little help.”
This comment may suggest the answer which Hebrew thought finally accepted. For it is apparent that, in repudiating the prowess of Judas and his outlaws, the writer looks rather for divine deliverance. And certainly this is in harmony with the entire apocalyptic movement and with most of the later political thought as it is expressed in the Old Testament. The Lord stirred up the spirit of Cyrus to deliver his people; he showed mercy by inclining the hearts of the kings of Persia to the needs of the Jews in Judea. On the other hand, Daniel and his companions in the Babylonian court “purposed in their heart that they would not defile themselves”; the three who refused to worship the great image were thrown into the furnace. Daniel himself continued his daily devotions in the face of royal prohibition; and in every case deliverance and advancement came to the faithful by supernatural means.
The conclusion is fairly clear. Jewish thought favored an honest acceptance of government, whatever it might be, and loyal conformity to promulgated law, but only within the limits of Jewish conscience. Where law and religion clashed, then the Jew was to honor his religious duty at whatever cost, encouraged, it may be, by the belief that this course would prove in the end wisest even from the practical point of view. Yet such conformity to the rule of government did not mean indifference to public standards of right. But change of government, in that age when it could be brought about humanly only through violence, was regarded as properly in the hands of God. He set up kings and he removed kings in accord with his eternal purposes. One must endure evil days sustained by the conviction that it was the will of God. And, at the worst, oppression was but a transient affair, for soon the kingdom of the saints would be established.