ISRAELITE LAW: STATE AND JUDICIARY LAW

In ancient Israel, laws were regarded as divinely ordained. The upholding of the laws, therefore, devolved upon the state, the religious establishment, and the people. Although the state could, presumably, impose sanctions for breaches of law, most cases were decided on the local level, and punishment was executed by the people as a whole (as in stoning), by the family of the victim (as in cases of murder), and by God.

Jurisdiction

There were several different strands of jurisdiction and authority in ancient Israelite law. Priests were in charge of religious matters, which included the important determination of secular and profane, pure and defiled (Lv. 10:10, Ez. 44:23; cf. Dt. 33:10). They oversaw the expiation of those misdeeds that could be expiated (Lv. 5:1–13; see below); they were involved in the trial of false witnesses; and they were members of the superior court envisioned in Deuteronomy (Dt. 17:8–13) and in the judicial reform under Jehoshaphat (2 Chr. 19:11). Alongside this priestly jurisdiction was a secular legal system that included the elders of the towns, the king, and judges and their officers.

Trials were usually held in the villages before the local elders. The typical procedure for such trials has been reconstructed by Donald A. McKenzie (1964). The adversaries would come before the elders (normally at the town gate) to lay out their case. The elders would take their seats; the defendant would be given a prominent place (1 Kgs. 21:9) with the plaintiff on his right (Zec. 3:1). The witnesses would be sitting and later would rise to bear testimony; if the case were very important, citizens would be summoned to attend (1 Kgs. 21:9). The plaintiff would state his case; then the defendant would state his, after which the witnesses would rise to bear witness (Dt. 19:16. Ps. 35:11). The elders would discuss the matter and rise to give their verdict (Ps. 3:8, 35:2), declaring the defendant innocent or guilty. In the case of a guilty verdict, they would then oversee an immediate punishment. The informality of such procedures is indicated in chapter 4 of Ruth, in which Boaz waits at the gate for his kinsman and then convenes a court with what seems to be a random ten of the elders of the town.

Alongside this local system was the jurisdiction of the kings. There is a strong tradition, shared by Israel and Mesopotamia, that the kings were responsible for upholding justice. The kings of Israel, however, were not lawgivers, for Israel's laws were held to come directly from God. They were, however, responsible for judging fairly, for seeing that justice was done, and for upholding the cause of the powerless. From the revelation of the Law, biblical narrative depicts Israel's leaders as arbiters of justice: Moses is seen as a judge (Ex. 18:13); the charismatic leaders of the premonarchical period (the "Judges") are said to have judged Israel; Samuel rode a justice circuit (1 Sm. 7:15–16); and both David and Solomon are shown making judicial decisions (2 Sm. 15:2, 1 Kgs. 3:16–28). However, there is no instance in which a case was referred from the elders to the king, nor is there any case in which a king overrode the decision of a local court. The royal system seems to have operated separately and may have been open to any citizen.

The stories of the decisions of the king, moreover, do not show formal trials. In the two phony disputes that David "decided," the parables of Nathan (2 Sm. 12:1–6) and of the wise woman of Tekoa (2 Sm. 14:4–7), only one party is heard—an outsider (Nathan) or a pleader. Similarly, when the woman whose son Elisha had restored to life comes before the king to reclaim her lands, nothing is heard of or from whoever is presently working those lands (2 Kgs. 8:1–6). The impression one gets from these stories is that individuals would come to plead their case before the king in order to convince him—without formal process—and thus have the king become their advocate. It is in this sense that Absalom tells the Israelites coming to David for justice that they will find no "hearer" from the king (2 Sm. 15:2–6), that is, that the king will not grant them a sympathetic audience and act on their requests. Similarly, Josiah is said to have judged the case of the poor (Jer. 22:15–16). The only known case in which the king heard from both litigants is that of the two prostitutes before Solomon (1 Kgs. 3:16–28). The kings do not appear to have instituted trials at which they would preside. Even in the case of Naboth, where the charge was treason (cursing the king), Jezebel and Ahab did not preside: Jezebel went through the regular channels of the elders and nobles of the city in order to have Naboth convicted (by perjured testimony) (1 Kgs. 21:8–14).

At some time during the monarchy, most probably under Jehoshaphat, the system of trial by elders or by king was either augmented or superseded by the appointment of judges and their executives throughout the land and by the establishment of a superior court in Jerusalem to which the local elders and judges could bring cases that they could not decide. In the organization of the judiciary under Jehoshaphat (2 Chr. 19:5–11), the superior court had a dual composition: Matters relating to God were referred to the priest in charge, Amariah; the "king's matters," to Zebadiah. This system of installing royally appointed judges throughout the land, as well as a superior court to which they could refer, is also envisioned in Deuteronomy (Dt. 16:18–9, 17:8–13).

Decision Making

Israelite trials were based on an accusatorial system in which the plaintiff bore testimony against the defendant. In effect, there was no difference between an accuser and a witness. This system is inherently vulnerable to the subverting of justice by false witnesses. Two mechanisms act to minimize this danger: the requirement of two (male, free, Israelite) witnesses for conviction and the institution of retributive punishment for bearing false witness or making a false accusation. Deuteronomy 19:15–21, as the laws of Hammurabi in Mesopotamia, requires the false witness or accuser to receive the punishment that the accused would receive if convicted: payment of equivalent damages if the case was pecuniary, and forfeiture of life if the case was capital. This provision is a change from the Sumerian system, which prescribed a fine for false witnesses, but is similar to the laws of Hammurabi. These precautions were not entirely sufficient; they did not prevent Jezebel from finding two witnesses willing to commit perjury (1 Kgs. 21:10), nor the two elders in Susanna from perjuring themselves; the Pharisaic insistence on intense cross-examination of witnesses in capital cases was meant to increase the safeguards against false conviction by means of witnesses.

In the absence of two witnesses, the courts did not have the authority to decide a case. This is the reason for the indictment of someone who hears the alah (here a judicial curse meant to call out witnesses) but does not speak up (Lv. 5:1). Certain cases could not be left undecided, and recourse would be had to divine intervention, either through divination, an oracle, or an oath procedure. Two types of divination used in Israel were lots and the Urim and Tummim. Lots could be used to determine whether an accused person was guilty, as in the case of finding the culprit who took booty from Jericho (Jos. 7:14–15). They would not be sufficient to convict; for after Achan was selected by the lots, his tent was searched, and even after the goods were found, he was asked to confess (Jos. 7:22–25). The Urim and Tummim were in the hands of the priests and also functioned to determine whether an accused were guilty (1 Sm. 14:38–42). Neither method of divination is heard of after the full establishment of the monarchy. Solomon's willingness to decide the case of the two prostitutes (in which there were no witnesses) may be an indication that the monarchy now considered itself strong enough not to need divine legitimation for its decisions; the recorded feeling of the people was that "the wisdom of God was in him to do judgment" (1 Kgs. 3:28).

Decision by oracle is heard of in such cases as blasphemy (Lv. 24:12) and Sabbath offenses (Nm. 15:34); the accused would be put under guard until a divine decision was heard. Such matters may have continued to be decided by divine oracle even under the monarchy, for 2 Chronicles records that people might come to the superior court for the argument of a case or for God's judgment (2 Chr. 19:8).

God could also be involved in the judicial process by means of an exculpatory oath by the accused, in which the accused placed himself under God's jurisdiction in affirming his innocence (Ex. 22:7–10, Lv. 5:20); the court would believe him under the supposition that he would not risk divine retribution for commiting a falsehood. A particularly solemn form of exculpatory oath is the procedure for the suspected adulteress (Soṭah ): The woman accused by her husband stood "before the Lord" and drank a potion that contained dust from the sanctuary and the dissolved words of the oath in which she affirmed her innocence and her belief that the waters would not harm her if she was innocent but would cause infertility if she was guilty (Nm. 5:11–31). After drinking the potion, the woman was free to go and would "bear her penalty" (that is, she would await divine retribution). If she was guilty, "her belly shall distend and her thigh shall fall," which may indicate a prolapsed uterus and certainly indicates future infertility. If she was innocent, she would ultimately be totally vindicated by becoming pregnant, and her husband would not be penalized for making a false accusation. Although this procedure is sometimes called an ordeal, it differs from true ordeals in two ways: (1) no divine decision is immediately apparent and (2) God himself rather than the human court is expected to punish the woman.

Execution of the Decision

There are several different kinds of penalties. Fines might be exemplary, multiple payments such as the repayment of double, fourfold, or fivefold damages for theft (Ex. 22:1–4). Or, specific penalties could be prescribed, such as the guilt offering (asham ) of a ram imposed for violating a slave woman designated to marry (Lv. 19:20–21) or the payment of the standard bride-price to the father of a deflowered virgin (Ex. 22:16–17). In certain cases the amount of the penalty is determined by the family of the injured party. Thus, after an ox had gored someone to death, its owner was to pay whatever was demanded of him in order to ransom his own life (Ex. 21:30), and after having caused a woman to miscarry, one was to pay whatever the woman's husband and the judge decided (Ex. 21:22).

There is little corporal punishment in the Bible. The most common instance of it is scourging, or flogging, limited by law to forty lashes (Dt. 25:1–3). A woman who touched a man's genitals while protecting her husband in a fight could have her hand cut off (Dt. 25:11–12). This was the only specific mutilation prescribed in the Bible, in contrast to Babylonian and Assyrian law (e.g., Laws of Hammurabi 192, 193, 194, 205, 218, 282; Middle Assyrian Laws 4, 5, 8, 9, 15, 18, 20, 44, 52).

A question is raised by the law of talion (lex talionis ) that requires equal retaliation in cases of assault and battery (Lv. 24:19–21). Given the lack of mutilation practiced in Israel, it has been suggested that talion is a statement of judicial principle rather than a concrete description of practice and that the actual penalty was the payment of compensation money computed by talionic principles. This is almost certainly the case with the other two statements of the talionic principle in the Bible, the accidental injury to a pregnant woman (Ex. 21:23–25) and the penalty for false witnesses (Dt. 19:19–21): If there were no judicial penalties of mutilation, then the mention of talionic mutilations must have been a judicial maxim to express the principles of equivalent retaliation. Equivalent retaliation stopped with the accused. In Mesopotamia the child or wife of a perpetrator could be punished for a misdeed against the child or wife of the injured party. In Israel this was not allowed (Ex. 21:31, Dt. 24:16), although a belief that God would punish and reward the children (Ex. 20:5) was held until the days of Jeremiah and Ezekiel (Jer. 31:30, Ez. 18).

Capital Punishment

Death by burning is prescribed for two sexual offenses (Lv. 20:14, 21:9, cf. Gen. 38:24). Death by the sword is prescribed for an idolatrous city (Dt. 13:15; cf. 1 Kgs. 18:40, 2 Kgs. 23:30). The most common penalty mentioned in capital cases is stoning. The stoning was to be held before the judges; the witnesses cast the first stone, followed by the rest of the people (Dt. 17:7), who were thus collectively acting to rid themselves of the guilt of the misdeed. There is a difference of opinion as to whether stoning was in fact the common mode of execution (Phillips, 1970), or whether it is specifically mentioned only for those cases in which it was used, cases in which there had been a major offense against the hierarchical order of the universe (J. J. Finkelstein, 1981; Tikva Frymer-Kensky, 1983).

In cases of murder, the agent of execution was the "blood redeemer" (goʾel ha-dam ), who was obligated to avenge the murdered party. He was to chase the culprit, who could escape to one of the cities of refuge, set up to be places where a person who had accidentally killed someone could go for a trial. If the person was found to be an intentional murderer, he was handed over to the blood redeemer; if found to be an accidental murderer, he stayed in the city of refuge (a kind of quarantine) until the death of the priest. If he left before that, the blood redeemer was charged with executing him. The reason for this law is explicit: The blood of the slain pollutes the Land of Israel; thus accepting money as restitution for murder or even allowing an accidental murderer to leave the city of refuge would pollute the Land of Israel (Nm. 35:9–34, Dt. 19:1–12). The blood redeemer is normally taken to mean the closest male relative of the slain, whose job it would be to protect the family. Anthony Phillips (1970), however, has argued that the blood redeemer was, on the contrary, the appointed representative of the local court, whose job it was to carry out the court's instructions.

Expiation

Despite the fact that Israel's law had a fundamentally religious base, there was little expiation in the legal system. Someone who ignored the charge for witnesses and did not come forth, who swore a false oath, or who touched impurity might bring a conscience sacrifice, the asham (Lv. 5:1–13, traditionally translated as "guilt offering"). In the case of the discovery of a murdered corpse when the murderer cannot be found, the elders of the city were to perform the ritual of the heifer whose neck is broken, attesting to their lack of culpability, averting the blood pollution of their land, and expiating the failure of the legal system (Dt. 21:1–9).

Bibliography

Falk, Zeʾev. Hebrew Law in Biblical Times: An Introduction. Jerusalem, 1964.

Finkelstein, J. J. The Ox That Gored. Transactions of the American Philosophical Society, vol. 71, pt. 2. Philadelphia, 1981.

Frymer-Kensky, Tikva. "Tit for Tat: The Principle of Equal Retribution in Near Eastern and Biblical Law." Biblical Archeologist 43 (Fall 1980): 230–234.

Frymer-Kensky, Tikva. "Pollution, Purification and Purgation in Biblical Israel." In The Word of the Lord Shall Go Forth, edited by Carol L. Meyers and M. O'Connor. Winona Lake, Ind., 1983.

Frymer-Kensky, Tikva. "The Strange Case of the Suspected Soṭah." Vetus Testamentum 34 (January 1984): 11–26.

Greenberg, Moshe. "Crimes and Punishments." In The Interpreter's Dictionary of the Bible, edited by George A. Buttrick, vol. 1, pp. 733–744. Nashville, 1972.

McKenzie, Donald A. "Judicial Procedure at the Town Gate." Vetus Testamentum 14 (1964): 100–104.

Milgrom, Jacob. Cult and Conscience: The Asham and the Priestly Doctrine of Repentance. Leiden, 1976.

Phillips, Anthony. Ancient Israel's Criminal Law: A New Approach to the Decalogue. Oxford, 1970.

Ploeg, J. P. M. van der. "Les anciens dans l'Ancien Testament." In Lex Tua Veritas: Festschrift für Hubert Junker, edited by Heinrich Gross and Franz Mussner, pp. 175–191. Trier, 1961.

Ploeg, J. P. M. van der. "Les juges en Israel." Populus dei: Studi in honore del card. Alfredo Ottaviani per il cinquantesimo di sacerdozio, vol. 1, pp. 463–507. Rome, 1969.

New Sources

Ball, Milner S. Called by Stories: Biblical Sagas and Their Challenge for Law. Durham, N.C., 2000.

Carmichael, Calum M. "Biblical Laws of Talion." Hebrew Annual Review 9 (1985): 107–126.

Fitzpatrick-McKinley, Anne. The Transformation of Torah from Scribal Advice to Law. Journal for the Study of the Old Testament Supplement Series, no. 287. Sheffield, U.K., 1999.

Friedmann, Daniel. To Kill and Take Possession: Law, Morality, and Society in Biblical Stories. Peabody, Mass., 2002.

Hanks, Gardner C. Capital Punishment and the Bible. Scottdale, Pa., 2002.

Knoppers, Gary N. "The Deuteronomist and the Deuteronomic Law of the King: A Reexamination of a Relationship." ZAW 108 (1996): 329–346.

Rofé, Alexander. "The Laws of Warfare in the Book of Deuteronomy: Their Origins, Intent and Positivity." JSOT 32 (1985): 23–44.

Tikva Frymer-Kensky (1987)

Revised Bibliography