Notes on the Law

 Intro

Our lessons this evening bid us to consider the nature of the Law. When the Bible speaks about “the Law” what kind of thing is it referring to? When Jesus goes atop the Mountain to interpret the Law of Moses, what is that thing that he is interpreting and what is the status of the interpretation that he gives?

Bridge - Problematic

The 17th century theologian, Richard Hooker identifies the Law of Moses with “the divine law” itself, given by God near the dawn of the world to holy men, written at God’s instruction by Moses himself (Book I, XIII). For Hooker, this divine status of the Law laid down in Holy Scripture is the primary rule and authority which is sufficient for the making known of all “duties supernatural,” that is, those things pertaining to salvation. This authority and sufficiency of the divine Law contained within the Scriptures is, for Hooker, a check against any excessive demands that may be made upon believers by the canons of the Church, and of course, here he has in mind particularly the Roman Catholic magisterium. It is not that these canons are not pragmatic or useful, but they are not, for Hooker, equal in authority to the divine law laid out in Holy Writ. This identification of the scriptures with divine law, and further, as being in some ways disclosive of natural law, is not particularly unique to Hooker, but is the way that most medieval and early modern theology tends to understand this relationship.

Well, with apologies to Hooker and his predecessors, I want to question this identification of the Law as laid down in Scripture with the divine law. And this challenge comes from two directions, one internal to scripture and one external. 

Internal Critique - Torah as Teaching

First, the internal challenge from the Bible itself. OT scholar, Dan Block points out that when we read torah as “law” we tend to think primarily in juridical terms, inheritors as we are of both the Greek translation of torah as nomos and the Latin translation as lex, which both evoke a sense that what we are dealing with here are rules, regulations, or laws. Indeed, one can compare the texts of the Torah to the law codes of contemporary Ancient Near Eastern legal texts like, for example, the law code of Hammurabi, and there is significant overlap in the particulars between that code and many of the specific legal commands found in our Scriptures. But it’s helpful to remember that when we’re talking about the Torah, primarily what is being talked about is the pentateuch, the first five books of the Bible. And within this collection of books we find a wide array of genres, from sections in Exodus, Deuteronomy, and Leviticus that look more familiarly like “law” to us and in comparison with other Ancient Near Eastern law, but we must remember that the vast majority of the Torah is not actually in this form, it contains lots of narrative and poetry, types of literature that we don’t typically associate with legal codes.

Keeping in mind this textual diversity within what we call “Torah,” Block argues that understanding all this material simply as “The Law” really doesn’t capture the Hebrew sensibility around Torah at all. Why, for example, would the longest psalm in the entire psalter, Psalm 119, consist of a hundred and seventy-six verses that go on, and on, about how lovely the law is and how happy are those who follow it? Furthermore, why would the Deuteronomist lay down a series of blessings for those who obey and follow the law and curses for those who do not? For as Qoheleth notes in Ecclesiastes, the wicked seem to do just fine in this world and curses fall just as often on the righteous as they do on the wicked. If we are assuming that the torah is a series of laws from which consequences flow mechanistically, our own bitter experience and the words of Qoheleth show that this is simply not true.The psalmist might think that it is a happy thing to follow the law but scripture is filled with stories of the righteous, like Job, who follow the law and receive only bitterness. So clearly something about how we’re thinking about the torah and its status as “law” is not quite adding up with how obedience to the law plays out in Scripture itself!

Well, Block says, that’s because the torah is not primarily a legal code, it is primarily “teaching”. Block points to an ancient prayer known as the prayer to an unknown god, in which the ancient author agonizes over the fact that because they do not know this God they do not how to please him, if indeed this God even is a him! There is no way to rightly worship this God because this God is unknown, what this God likes or dislikes is unknown, and therefore this worshipper lives in intense anxiety about accidentally offending this God, because there is no way to know this God and therefore, both the worship and neglect of this God is intensely fraught. Knowing the gods and more importantly, knowing how to rightly worship the gods is one of the most important aspects of life in the Ancient Near East, because it is the relationship between a God or a pantheon of Gods and a people that constitutes that people and guarantees that people a future. So knowing who God is and how to worship God is really a deeply existential concern!

This general feature of levantine religion in this period is highlighted remarkably clearly in the book of Leviticus - which is, I’m sure, the favourite book of all of you here this evening…

I assure you, I felt the same way until I noticed something. Try this with a bible you don’t mind marking up - go through the book of Leviticus with a highlighter and highlight every instance of “I am the Lord your God who brought you up from the Land of Egypt” or the shorter formulae “I am the Lord Your God” and “I am the Lord”. What you’ll begin to see is that each ‘rule’ or ‘law’ in this book, at least, follows from this central confession, that the God they worship and serve is the same God who first rescued them out of the land of Egypt and established them in the land of promise. God is identified by God’s good and saving work for them, and so the Israelites have 1) assurance of which God they are worshipping and 2) more importantly, a way to rightly and reliably worship this God. I know that sounds weird to our modern ears, but that really was “good news” for the people of Israel. Knowing how to rightly worship and live in such a way that marked out for the world that they were the people of the LORD was a big deal as an existential-political reality.

Returning to our OT lesson from Deuteronomy, our lesson promises blessings for the obedient and curses for the disobedient, and I’ve already flagged up a problem with understanding this a strict kind of mechanistically cause and effect legal reality, but if we understand this within the context of the entire book of Deuteronomy, it is still strange, but not prima facie incoherent. For the Book of Deuteronomy is in fact a long sermon given by Moses at the end of his life. He is rehashing the “law” received at Sinai, but setting that law within the context of a long story about the God who brought them up out of the land of Egypt and is just about to lead them into the Promised Land. If we had nothing but time, we could do a long in depth look at the ways various discrete “laws” or rules laid out in Deuteronomy are different than what was written in Exodus during the Sinai situation, and in fact, are different than what gets cited by Joshua in the very next book as he leads the Israelites into the Land. But the salient point of such an exercise would be to show that what’s going on in this grand retelling of the history of Israel and its “laws” is similar in dynamic to what is going on in the book of Leviticus. The text is primarily pedagogical, it wants to teach Israel about the history of the God who made them a people and tell them what it means to live as that people. This of course involves the setting of some rules, but careful readers will already know that the details of these ‘rules’ change across the canon of scripture, yet they are able to change precisely because they have a higher purpose, which is instructing the people to live in such a way that Israel becomes living proof that their God really is the God who acts in history to cast down the mighty from their thrones and lift up the lowly.

External Critique - Antigone and the Divine Law

So far I have suggested that there is good reason from within Scripture itself to not identify the Torah with “law” in a way that simply discloses the unchanging legal codes or rules of the divine law in any kind of universal or timeless way. But there is also a good philosophical reason for this. The Greek philosopher Sophocles, writing in the 5th century BCE, wrote a short tragedy called Antigone, about the fate of the children of the doomed King Oedipus. After the death of Oedipus, his two sons slew each other in battle and the new King, King Creon, issued a decree that while the son who was defending the city could be buried with all proper ceremony, the son who had raised a foreign army to invade was to be left out on the field of battle to be eaten by carrion. Antigone, the daughter of the former King Oedipus, could not bear to see her brother’s body treated this way, and so, in full defiance of Creon’s decree, snuck out of the city and performed some minimal burial rights for her brother, covering his corpse with a thin layer of dust to at least take the minimum steps toward rightly honouring his death before the gods. It is not long before King Creon discovers what Antigone has done and summons her to confront her for disobeying his law:

CREON:

And yet you dared defy the law.

ANTIGONE:

I dared.

It was not God’s proclamation. That final Justice

That rules the world below makes no such laws.

Your edict, King, was strong,

But all your strength is weakness itself against

The immortal unrecorded laws of God.

They are not merely now: they were, and shall be,

Operative for ever, beyond man utterly.

Antigone’s argument here is often pointed to as one of the very first instances of a self-conscious appeal to divine or natural law as an act of resistance to the injustice of a given human law. King Creon believes he is secure in his authority to issue an unjust law, for after all, it is given to kings to make laws, and there may well be civil precedent for treating the dead a certain way, but surely this does not need to apply to the enemies of the state, particularly treacherous enemies?! And so, by a way of a certain kind of casuistry, Creon reassures himself and his critics that he is right, or at least legally justified, in making this monstrous decree. Yet Antigone cuts through this juridical reasoning to draw attention back to the nature and limit of the law itself. Law is only legitimate, it is only just, if it corresponds to the universal natural or divine law of justice that infuses the universe. It may very well be that Creon is legally justified in his action, but Antigone challenges whether he is morally justified, and if he is not justified according to the “immortal unrecorded laws of God” is his legal justification really all that sound? Or has the law, in Creon’s hands, ceased to serve the very purpose of law and instead become a cruel tool of injustice and a mockery of the gods?

It is important that the law that Antigone appeals to here is the “immortal” and “unrecorded” law of God, for this is a transcendental law, and appeal to it is a radical act of courage, not an act of casuistic interpretation in the way any given recorded law necessarily is. As I already highlighted in my high level synopsis of the OT law, even though Moses receives the law from God upon the Mountain, indeed, even has it written in stone, nevertheless, as soon as Moses descends from the mountaintop, that divine law enters into the very human dimension of written and interpretable law, and we see it being so re-interpreted, first by Moses himself, then by Joshua, then through the leadership of the Judges and finally in the oracles of the Prophets. Making an appeal to a written law, divinely inspired or otherwise, does not have the same transcendental effect of interruption that Antigone’s appeal has.  

The force of Antigone’s appeal is precisely in its interruption to the normal way in which the practice of law proceeds. There is no precedent, there are no arguments, there is simply an appeal to what must be truly just in the world if God himself is just. It is a sacred move, and one not undertaken lightly. Indeed, while Creon is eventually converted to the truth of her appeal, he does so too late, Antigone takes her own life and sets off a series of events by which Creon loses his entire family to his hubristic folly. Antigone is vindicated by the outpouring of divine justice upon Creon, but she is doomed in the process. 

The appeal to a natural or divine law as a challenge to the injustices of human law has a long tradition in Western civilization, and it is often used as a tool of resistance to unjust laws, but, precisely because it is such a powerful gesture, it can and has been used to claim divine sanction for laws and actions that would not otherwise pass the careful discernment of ordinary legal casuistry. It is not for us this evening to figure out out how and when to make use of such an extraordinary tool, but the reason I have spent so much time on it is because I think it provides us an important reminder about the nature of divine law as something transcendental and, crucially, not written down, and what that means for how we come to scripture confessing that what we find therein is something akin to “divine law.” As Christians, we take it on faith that the Scripture contains divine law, but it comes to us as something written down and thus subject to the normal processes of interpretation, and indeed, even within Scripture itself, this “divine law” is constantly being renegotiated and reinterpreted. It is not something that can be appealed to to settle debate in the way Antigone appeals to the unrecorded law of God, rather, it is always appealed to as that which, for Christians, starts the interpretive process. 

Synthesis - Bracton’s Priests of the Law and the Sermon on the Mount

The true origins of our modern conception of common law, as practiced today in courts and by lawyers across the English speaking world, seems to come from a period of impressive legal innovation in the mid-thirteenth century. From about 1220-1260, a massive legal treatise was written in England called “On the Laws and Customs of England” or, as it’s otherwise known Bracton that is pointed to as the origins of what we today know as the common law. As the earliest versions of the modern state begin to emerge in the 13th century, there is a need to come up with a way of navigating the plural jurisdictions of Roman law, canon law, and local law and custom. What Bracton primarily seeks to accomplish is to claim that there is an underlying universality to law and that rather than being in conflict, all these various legal jurisdictions actually are in fundamental agreement with each other at a deep metaphysical level, insofar as they participate in the natural law. Of course, this was not strictly speaking true, and conflicts between the King’s court and canonical courts would continue to rage for centuries, nevertheless, the legal experts who wrote this document believed that there was a coherence to these plural legal regimes and they expressed this by way of a short definition of the purpose of law: “Law is called the art of what is fair and just, of which we are deservedly called the priests, for we worship justice and administer sacred rights.”

These early lawyers understood two fundamental things about the nature of the law. First the law is an art of what is fair and just, and second that those who administer the law are engaged in a sacred act. The first of these premises is significant because by admitting that the law is an ‘art’ it is understood that “fairness” and “justice” are principles at which the actual laying down and and interpreting of laws are aimed. This is an ongoing affair and is an art that is normed by its goal or telos, these transcendental principles of fairness and justice. Law is not law at all if it is not oriented towards these two principles. Because this is the nature of law, those who interpret and administer it have a sacred duty, because while they are engaged in a very human act of interpretation, their efforts are always judged and accountable to the transcendental divine law that is perfectly fair and perfectly just in all things.

Conclusion

With all this in mind, we might, at last, come to the Sermon on the Mount. There is a common interpretation of this passage tonight that says that when Jesus goes up on the Mount to teach, he authoritatively interprets the law, AND does so in such a way that both intensifies the law and consistently comes down on the more conservative side of the contemporary rabbinic debates that he is weighing in on. On this account, anger is equivalent to murder, lust is adultery, divorce is even more strictly regulated, oaths are done away with, etc. Following on in this account, Christians are confronted with a choice, either attempt to live to this elevated standard, which has been the typical Anabaptist interpretation, or conclude that this ethic is an idealized and unrealizable as a social ethic, this has been the liberal protestant reading. I think neither are quite right. Bearing in mind all I have said about the nature of the Torah as teaching and the nature of any recorded law as an interpretive tradition normed by, but always some distance away from the divine law, I think what we see here in Jesus’ sermon is an attempt to once again draw us back to the pedagogical nature of law in the Hebrew tradition.This re-proclamation of the law from Jesus is fundamentally about God’s nature and God’s saving activity to and for us, a saving work that establishes us as a people. But it is also a check on, and a reminder that law, in our ongoing interpretation and application can become unjust. In the case of divorce, to take the most fraught example, Jesus is weighing in on a rabbinic debate about how easy it is for men to divorce their wives, perhaps replacing them with somebody younger or more pleasing to them. In this patriarchal context, this permissive approach in the interpretation of the Mosaic provision for divorce created ripe conditions for injustice. Jesus intervenes by pointing out that this patriarchal system that favoured the whims of men only compounded their own injustice by piling on stigma and economic hardship for women. In other words, the relationship between the interpretation of the law and the transcendent principles of ‘fairness’ and ‘justice’ had been severed and Jesus is making a contextual intervention to point to this rupture. This does not and cannot settle the issue of divorce, or any of the other issues in this text for all time, and that is not its purpose, for the written law is not the same thing as the eternal unrecorded law of justice. Instead we are thrust back into the job of interpretation. As Christians, we might still confess with Hooker and the mainstream tradition of Christian history, that the scripture represents the divine law, but it is a written and therefore interpretable law and it must be interpreted, wrestled with, and ultimately our interpretations and wrestling must always remain subject to the transcendental critique of God’s perfect justice.