Old Testament Civics

Basic Biblical Principles of Justice

Introduction

In all the old statues and paintings, Lady Justice is blind. Often she is blindfolded, sometimes blind in the eyes. This is because justice does not fear the face of man. “Ye shall do no unrighteousness in judgment: thou shalt not respect the person of the poor, nor honor the person of the mighty: but in righteousness shalt thou judge thy neighbor” (Lev. 19:15). “And I charged your judges at that time, saying, Hear the causes between your brethren, and judge righteously between every man and his brother, and the stranger that is with him. Ye shall not respect persons in judgment; but ye shall hear the small as well as the great; ye shall not be afraid of the face of man; for the judgment is God’s: and the cause that is too hard for you, bring it unto me, and I will hear it” (Dt. 1:16-17

This was at least the pretext of the Herodians asking Jesus about paying taxes to Caesar: “Master, we know that thou art true, and teachest the way of God in truth, neither carest thou for any man: for thou regardest not the person of men” (Mt. 22:16ff).

Justice — and therefore civic order — is to be the same for everyone. Lady Justice is blind and holds a set of scales in one hand and a sword in the other. This symbolizes the biblical foundations of civil order. Justice is to establish equal weights and measures and execute punishments equitably for all people regardless of class, sex, race, age, etc. In what follows we consider the basic biblical principles of civil order and justice, as handed down to Israel in the Torah and further established in the rest of the Christian Scriptures.

Lex Talionis

The most basic principle of biblical justice was introduced by the death penalty for murder in the Noahic Covenant: “And surely your blood of your lives will I require; at the hand of every beast will I require it, and at the hand of man; at the hand of every man’s brother will I require the life of man. Whose sheddeth man’s blood, by man shall his blood be shed: for in the image of God made he man” (Gen. 9:5-6). This principle first stated to defend human life would become known as the lex talionis – the law of retribution, or “eye for eye, tooth for tooth” (Ex. 21:24-25, Lev. 24:20). “Then both the men, between whom the controversy is, shall stand before the Lord, before the judges, which shall be in those days; and the judges shall make diligent inquisition… And thine eye shall not pity; but life shall go for life, eye for eye, tooth for tooth, hand for hand, foot for foot” (Dt. 19:21).

While this may sound initially vicious or somewhat barbaric to moderns, it was actually fundamentally a limit on vengeance and blood feuds. The tendency of sinful man is to return evil for evil: if someone takes out your eye, your immediate fleshly instinct is to return the favor by taking off his head. The lex talionis required thoughtfulness, careful inquiry, and was aimed at limiting revenge and wrath. The lex talionis is a maximum penalty, and it was to be administered without pity, without partiality, with complete equity for rich or poor, male or female, slave or free, but in many ancient (and modern) cultures, penalties could be severe, disproportionate to the crime, and administered capriciously (e.g. having your hand cut off for stealing or years in prison for selling drugs). If the standard for punishment is not fixed to this law of nature and reason, the scales of justice quickly become distorted and certain crimes come to be seen as worse than others, not because of worse damage, but because certain people are more offended or angry. But this introduces the blood feud into civil society instead of suppressing it. This is what is happening in modern “hate crime” legislation.

The lex talionis principle was also always intended to be the standard for civil judges not a license for personal animosity or vendettas. This was the abuse that Jesus was addressing in the gospels: “Ye have heard that it hath been said, an eye for an eye, and a tooth for a tooth: but I say unto you, that ye resist not evil: but whosoever shall smite thee on the right cheek, turn to him the other also” (Mt. 5:38-39). The same principle is repeated in Romans: “Dearly beloved, avenge not yourselves, but rather give place unto wrath: for it is written, vengeance is mine; I will repay, saith the Lord. Therefore if thine enemy hunger, feed him; if he thirst, give him drink: for in so doing thou shalt heap coals of fire on his head. Be not overcome of evil, but overcome evil with good” (Rom. 12:19-21). But in the very next verse in Romans, Scripture also commends submission to civil authorities who are ordained by God for administering wrath upon evildoers. Putting all of this together, Jesus is prohibiting all personal animosity, but He is not prohibiting self-defense or calling the cops.

Principles of Restitution

Lady Justice holds a balance because that is what human justice seeks to approximate: balance. We see this in God’s instructions to Noah for the administration of the death penalty for murder: “whose sheddeth man’s blood, by man shall his blood be shed.” The death penalty for murder is one of the basic principles of balance and civil order. When a culture or society begins ordinarily letting murderers live (even if in tax-supported cages), an imbalance in justice is being created. And that imbalance will soon cause imbalance elsewhere in the society. The blood of murder cries out from the ground and curses a land (Dt. 21).

This principle of balance is also clearly illustrated in requirements of restitution. The lex talionis requires that all theft and damage be restored and what a criminal intended to be done to his victim is to be done to him (and no more). The ordinary requirement for accidental damage or loss is simple replacement (Ex. 22:5-6, 14). This restores the balance. But if something is intentionally stolen, and what was stolen is found, the restitution is ordinarily double: returning what was stolen and what was intended to be done to the victim is done to the perpetrator (Ex. 22:4, 7). This underlines the significance of intention and is where we get the difference between murder and manslaughter and the degrees of murder (although the basic biblical distinction is between intentional harm or not).

Occasionally, the Bible requires a four or five-fold restitution (Ex. 22:1). This seems to be when the stolen items cannot be found – they have already been sold for profit, thus compounding the crime. So the double restitution is doubled to restore and punish, and perhaps the five-fold applies when the item stolen is of particular need to survive. If a workman’s work truck is stolen and sold for profit, the thief not only took a man’s possessions but also his very livelihood, the means by which he provides for himself and his family. Zacchaeus honored this principle by restoring fourfold in the gospels (Lk. 19:8). On the other hand, the law provides that if a thief repents, the item is restored plus twenty percent (Lev. 6:1-7). I take the twenty percent to be a tithe on the double restitution. The repentant thief is in effect saying that he knows that justice would require double restitution. And when the victim cannot be found, the Lord allows the restitution to be given as an offering (Num. 5:8).

These principles of restitution, if followed, would make prisons virtually non-existent. In a biblical republic, murder and rape and kidnapping would generally be punished with death penalties, high fines would be imposed for other violence or damages and those that could not pay the fines would be required to work them off in various forms of debt slavery. The fines of course would be paid to the actual victims of the crimes. The whole notion of “debt to society” is thoroughly dehumanizing, both to criminals and victims. But when restitution is required, everything short of the death penalty actually allows a criminal to take responsibility for their actions and make things approximately right with their victims.

The Jethro Principle

In Exodus 18, Jethro counseled Moses to choose good men from the people to be judges over thousands, hundreds, fifties, and tens. Here, we see several principles of civil government beginning to develop in ancient Israel: the principle of representation of the people, localism, as well as the principles of accountability, due process, and appeal. The cases that could not be solved at the lowest and most local level could be appealed to higher levels, and the hardest cases would be appealed all the way up to Moses (Ex. 18:22).

Here we are also impressed with the necessity of good men to fill these offices: “Moreover though shalt provide out of all the people able men, such as fear God, men of truth, hating covetousness” (Ex. 18:21). And “Ye shall not respect person in judgment; but ye shall hear the small as well as the great; ye shall not be afraid of the face of man; for the judgement is God’s” (Dt. 1:17).

Written Law

Another principle established in Old Testament law is the idea of a written constitution. This is famously symbolized in the Ten Commandments, but a written law code establishes a foundational principle of Lex Rex – the law is king, although the phrase itself was not popularized until Samuel Rutherford’s book (1644). But the basic concept goes back to the sordid history of the nation of Israel and the rallying cry, “To the law and to the testimony” (Is. 8:20, cf. Jer. 44:23). A nation may have monarchs or presidents or supreme courts and there may be organizational or administrative customs that vary from culture to culture, but justice is an intrinsic and transcendent and unchanging value. Monarchs or presidents or court justices may not “make up” justice as they go along, rather they are to judge according to God’s justice. True justice cannot change, and therefore the basic contract/covenant should be written down. The Magna Carta in 1215 is a modern example of this instinct, and the Scottish illustrated the same principle in 1320 with the Declaration of Arbroath, as did the American colonists in 1776 and again with our Constitution of 1789.

Two or Three Witnesses

The presumption of innocence is instituted by the requirement of two or three witnesses: “At the mouth of two witnesses, or three witnesses, shall he that is worthy of death be put to death; but at the mouth of one witness he shall not be put to death” (Dt. 17:6). “One witness shall not rise up against a man for any iniquity, or for any sin, in any sin that he sinneth: at the mouth of two witnesses, or at the mouth of three witnesses, shall the matter be established” (Dt. 19:15). This principle establishes the notion of innocent until proven guilty because the burden of proof is on the accusers not on the accused.

The same principle is repeated in the New Testament and required in church discipline (Mt. 18:16, 1 Tim. 5:19). This is also the principle that Jesus is appealing to in the story of the woman caught in adultery. Jesus is not setting aside Torah or biblical justice, rather, He is appealing to it. And when all the potential witnesses of have left the scene, there is no case against the woman (Jn. 8:10-11). More on this in a moment.

This high bar, requiring at least two and sometimes three independent lines of evidence/testimony means that it is better for a society for a true criminal to occasionally go free for lack of evidence or testimony, than for someone to be falsely convicted on the basis of one testimony. It is worth pointing out that the Bible considers material evidence one form of testimony (Dt. 22:15ff, 1 Jn. 5:8). And the practice of trial by jury is based on this principle (as opposed to trial by ordeal or trial by combat). Juries are not witnesses to the crime, but they are witnesses of the judicial proceedings, and a further protection for the accused. The multiple lines of evidence/testimony must be convincing to multiple random citizens.

False Witnesses

The Ninth commandment prohibits false testimony, but “If a false witness rise up against any man to testify against him that which is wrong… the judges shall make diligent inquisition: and, behold, if the witness be a false witness, and hath testified falsely against his brother; then shall ye do unto him, as he had thought to have done unto his brother: so shalt thou put the evil away from among you. And those which remain shall hear, and fear, and shall henceforth commit no more any such evil among you. And thine eye shall not pity; but life shall go for life, eye for eye, tooth for tooth, hand for hand, foot for foot” (Dt. 19:16-21).

So the principle of equity extends to the trial itself. The judges are required to make diligent inquiry, and Proverbs says, “He that is first in his own cause seemeth just; but his neighbor cometh and searcheth him” (Prov. 18:17). These are words to live by, especially in an age of social media.

Diligent inquiry includes cross examining the stories of witnesses and ignoring internet mobs. Anonymous witnesses/testimony are not allowed because they cannot be cross-examined. All of this is why a Christian can serve honorably as a public defender. A godly public defender should not be trying to get criminals off the hook, but he should be fighting for their right to a fair and equitable trial and penalty. A society that ramrods justice (even in cases of true crime) is a society that will soon begin cutting corners on the rights of the innocent.

When Jesus invites those without sin to cast the first stone, He is asking for honest biblical witnesses to step forward. In capital crimes, the witnesses were required to cast the first stones (Dt. 17:6-7). False witnesses were liable to the penalty they would have falsely inflicted (lex talionis), but biblical law also required the death penalty for both the man and the woman caught in adultery. So Jesus is not saying that only the sinless can give testimony, rather, He’s pointing out that a bunch of the witnesses were either false witnesses who had joined a mob or else were true eye witnesses because they had slept with the woman themselves. In either case, they would be liable to the same penalty they were seeking to exact on the woman. And one by one, they all departed, and so Jesus exposed their hypocrisy using the law, upheld the true meaning of the law, and protected a woman, who apparently had sinned.

This is the great gift of blind, biblical justice. And I still don’t know what Jesus wrote on the ground.