International Standard Bible Encyclopedia
LAW IN THE NEW TESTAMENT
The Term "Law"
Austin's Definition of Law
I. LAW IN THE GOSPELS
1. The Law in the Teaching of Christ
(1) Authority of the Law Upheld in the Sermon on the Mount
(a) Christ and Tradition
(b) Sin of Murder
(c) Adultery and Divorce
(f) Love to Neighbors-Love of Enemies
(2) Other References to the Law in the Teaching of Christ
(a) Traditions of the Elders and the 5th Commandment
(b) Christ's Answer to the Young Ruler
(c) Christ's Answer to the Lawyer
(d) References in the Fourth Gospel
2. The Law in Relation to the Life of Christ
(1) In His Infancy
(2) In His Ministry
3. The Law in Relation to the Death of Christ
(1) Christ Charged with Blasphemy under the Jewish Law
(2) Christ Charged with Treason under the Roman Law
4. How Christ Fulfilled the Law in All Its Parts
II. LAW IN THE ACTS OF THE APOSTLES
1. Stephen's Witness
2. Practice of Peter and Paul
3. Allusions to the Roman Law
III. LAW IN THE EPISTLES
1. In Romans
2. In Galatians
3. In the Other Pauline Epistles
4. In the Epistle to the Hebrews
5. In the Epistle of James
6. In the Epistles of Peter and John
The Term "Law":
The Greek word for "law" is nomos, derived from nemo, "to divide," "distribute," "apportion," and generally meant anything established, anything received by usage, a custom, usage, law; in the New Testament a command, law.
Austin's Definition of Law:
It may not be amiss to note the definition of law given by a celebrated authority in jurisprudence, the late Mr. John Austin: "A law, in the most general and comprehensive acceptation in which the term, in its literal meaning, is employed, may be said to be a rule laid down for the guidance of an intelligent being, by an intelligent being having power over him." Under this comprehensive statement, he classifies "laws set by God to His human creatures, and laws set by men to men." After analyzing the three ideas, command as the expression of a particular desire; duty or obligation, signifying that one is bound or obliged by the command to pursue a certain course of conduct, and sanction, indicating the evil likely to be incurred by disobedience, he thus summarizes: "The ideas or notions comprehended by the term command are the following:
(1) a wish or desire conceived by a rational being that another rational being shall do or forbear;
(2) an evil to proceed from the former and to be incurred by the latter in case the latter comply not with the wish;
(3) an expression or intimation of the wish by words or other signs."
This definition makes it clear that the term "laws of nature" can be used only in a metaphorical sense, the metaphorical application being suggested as Austin shows by the fact that uniformity or stability of conduct is one of the ordinary consequences of a law proper, consequently, "Wherever we observe a uniform order of events, or a uniform order of coexisting phenomena, we are prone to impute that order to a law set by its author, though the case presents us with nothing that can be likened to a sanction or a duty." As used in the New Testament it will be found generally that the term "law" bears the sense indicated by Austin, and includes "command," "duty" and "sanction."
I. Law in the Gospels.
Naturally we first turn to the Gospels, where the word "law" always refers to the Mosaic law, although it has different applications. That law was really threefold: the Moral Law, as summed up in the Decalogue, the Ceremonial Law, prescribing the ritual and all the typical enactments, and what might be called the Civil or Political Law, that relating to the people in their national, political life. The distinction is not closely observed, though sometimes the reference emphasizes one aspect, sometimes another, but generally the whole Law without any discrimination is contemplated. Sometimes the Law means the whole Old Testament Scriptures, as in John 10:34; John 12:34; John 15:25. At other times the Law means the Pentateuch, as in Luke 24:44.
1. The Law in the Teaching of Christ:
The Law frequently appears in the teaching of Christ. In the Sermon on the Mount He refers most specifically and fully to it. It is frequently asserted that He there exposes the imperfection of the Law and sets His own authority against its authority. But this seems to be a superficial and an untenable view. Christ indeed affirms very definitely the authority of the Law: "Think not that I came to destroy the law or the prophets" (Matthew 5:17). Here the term would seem to mean the whole of the Pentateuch "I came not to destroy, but to fulfil. For verily I say unto you, Till heaven and earth pass away, one jot or one tittle shall in no wise pass away from the law, till all things be accomplished" (Matthew 5:17, 18). A similar utterance is recorded in Luke 16:17: "It is easier for heaven and earth to pass away, than for one tittle of the law to fall."
(1) Authority of the Law Upheld in the Sermon on the Mount.
The perfection and permanence of the Law as well as its authority are thus indicated, and the following verse in Matthew still further emphasizes the authority, while showing that now the Lord is speaking specifically of the moral law of the Decalogue: "Whosoever therefore shall break one of these least commandments, and shall teach men so, shall be called least in the kingdom of heaven: but whosoever shall do and teach them, he shall be called great in the kingdom of heaven" (5:19). These impressive sentences should be borne in mind in considering, the utterances that follow, in which there seems a contrast between the Law and His own teaching, and from which has been drawn the inference that He condemns and practically abrogates the Law. What Jesus really does is to bring out the fullness of meaning that is in the Law, and to show its spirituality and the wideness of its reach. He declares that the righteousness of His disciples must exceed the righteousness of the scribes and Pharisees (Matthew 5:20). Their righteousness consisted largely in a punctilious observance of the external requirements of the Law; the disciples must yield heart obedience to the inner spirit of the Law, its external and internal requirements.
(a) Christ and Tradition:
Jesus then proceeds to point out the contrast, not so much between His own teaching and that of the Law, as between His interpretation of the Law and the interpretation of other teachers: "Ye have heard that it was said by them of old time" (the King James Version), "to them of old time" the Revised Version (British and American) (Matthew 5:21). Either rendering is grammatically allowable, but in either case it is evidently not the original utterance of Moses, but the traditional interpretation, which He had in view "Ye have heard that it was said"; Christ's usual way of quoting the Old Testament is, "It is written" or some other formula pointing to the written Word; and as He has just referred to the written Law as a whole, it would be strange if He should now use the formula "It was said" in reference to the particular precepts. Evidently He means what was said by the Jewish teachers.
(b) Sin of Murder:
This is further confirmed by the citations: "Thou shalt not kill; and whosoever shall kill shall be in danger of the judgment." The second clause is not found in the Pentateuch as a distinct statement, but it is clearly the generalization of the teachers. Christ does not set Himself in opposition to Moses; rather does He enjoin obedience to the precepts of the scribes when, sitting in Moses' seat, they truly expound the Law (Matthew 23:1-8). But these teachers had so expounded the command as if it only referred to the act of murder; so Christ shows the full and true spiritual meaning of it: "But I say unto you, that every one who is angry with his brother shall be in danger of the judgment" (Matthew 5:22).
(c) Adultery and Divorce:
Again, "Ye have heard that it was said, Thou shalt not commit adultery" (Matthew 5:27). The traditional teaching confined this mainly to the outward act, `But I say unto you,' says Christ, `that adultery pertains even to the lustful thought' (Matthew 5:28). In dealing with this matter He passes to the law of divorce which was one of the civil enactments, and did not stand on the same level with the moral precept against committing adultery, nay, the very carrying out of the civil provision might lead to a real breach of the moral precept, and in the interests of the precept itself, in the very desire to uphold the authority of the moral law, Christ pronounces against divorce on any ground, save that of fornication. Later on, as recorded in Matthew 19:3-9, He was questioned about this same law of divorce, and again He condemns the light way in which divorce was treated by the Jews, and affirms strongly the sanctity of the marriage institution, showing that it was antecedent to the Mosaic code-was from the beginning, and derived its binding force from the Divine pronouncement in Genesis 2:24, rounded upon the nature of things; while as to the Mosaic law of divorce, lie declares that it was permitted on account of the hardness of their hearts, but that no other cause than fornication was sufficient to dissolve the marriage tie. This civil enactment, justified originally on account of the inability of the people to rise to the true moral ideal of the Decalogue, Christ claims authority to transcend, but in doing so He vindicates and upholds the law which said, "Thou shalt not commit adultery."
The next precept Jesus cites is one partly civil and partly ritual, concerning the taking of oaths. The words are not found in the Pentateuch as a definite enactment; they are rather a gathering up of several utterances (Leviticus 19:12 Numbers 30:2 Deuteronomy 23:21), and again the form of the citation suggests that it is the rabbinical interpretation that is in question. But the kind of swearing allowed by the law was the very opposite of ordinary profane swearing. It was intended, indeed, to guard the 3rd commandment against taking the name of Yahweh in vain. Christ in condemning the flippant oaths allowed by the rabbis was really asserting the authority of that 3rd command; lie was enforcing its spirituality and claiming the reverence due to the Divine name. Into the question how far the words of Christ bear upon oath-taking in a court of law we need not enter. His own response to the adjuration of the high priest when practically put upon His oath (Matthew 26:63, 64) and other instances (Romans 1:9 2 Corinthians 1:23 Galatians 1:20 Philippians 1:8 1 Thessalonians 2:5 Hebrews 6:16, 17 Revelation 10:5, 6) would tend to show that such solemn appeals to God are not embraced in Christ's prohibition: "Swear not at all"; but undoubtedly the ideal speech is that of the simple asseveration, the "Yes" or "No" of the man, who, conscious that he speaks in the presence of God, reckons his word inviolable, needing no strengthening epithet, though as between man and man an oath may be necessary for confirmation and an end of strife.
He next touches upon the "law of retaliation": "an eye for an eye" (Matthew 5:38), and consistently with our understanding of the other sayings, we think that here Christ is dealing with the traditional interpretation which admitted of personal revenge, of men taking the law into their own hands and revenging themselves. Such a practice Christ utterly condemns, and inculcates instead gentleness and forbearance, the outcome of love even toward enemies. This law, indeed, finds place among the Mosaic provisions, but it appears there, not as allowing personal spite to gratify itself in its own way, but as a political enactment to be carried out by the magistrates and so to discountenance private revenge. Christ shows that the spirit of His gospel received by His people would supersede the necessity for these. requirements of the civil code; although His words are not to be interpreted quite literally, for He himself when smitten on the one cheek did not turn the other to the smiter (John 18:22, 23), and the principle of the law of retaliation still holds good in the legislative procedure of all civilized nations, and according to the New Testament teaching, will find place even in the Divine procedure in the day of judgment.
See also PUNISHMENT.
(f) Love to Neighbors-Love of Enemies:
The last saying mentioned in the Sermon clearly reveals its rabbinical character: "Thou shalt love thy neighbor, and hate thine enemy" (Matthew 5:43). The first part is indeed the injunction of the Law, the second part is an unwarrantable addition to it. It is only this part that Christ virtually condemns when He says, "But I say unto you, Love your enemies" (Matthew 5:44). That the interpretation of these teachers was unwarrantable may be seen from many passages in the Pentateuch, the Prophets and the Psalms, which set forth the more spiritual aspect of the Law's requirement; and as to this particular precept, we need only refer to Proverbs 25:21, 22, "If thine enemy be hungry, give him bread to eat." Christ while condemning the addition unfolds the spiritual import of the command itself, for the love of neighbor rightly interpreted involves love of enemies; and so on another occasion (Luke 10:25-37) He answers the lawyer's question, "Who is my neighbor?" by the parable of the Good Samaritan, showing that everyone in need is our neighbor.
See also FORGIVENESS; WRATH.
The last reference in the Sermon on the Mount to the Law fully bears out the idea that Christ really upheld the authority while elucidating the spirituality of the Law, for He declares that the principle embodied in the "Golden Rule" is a deduction from, is, indeed, the essence of, "the law and the prophets" (Matthew 7:12).
(2) Other References to the Law in the Teaching of Christ.
We can only glance at the other references to the Law in the teaching of Christ. In Matthew 11:13, "For all the prophets and the law prophesied until John," the Law in its teaching capacity is in view, and perhaps the whole of the Pentateuch is meant. In Matthew 12:1-8, in rebutting the charge brought against His disciples of breaking the Sabbath, He cites the case of David and his men eating the showbread, which it was not lawful for any but the priests to partake of; and of the priests doing work on the Sabbath day which in other men would be a breach of the Law; from which He deduces the conclusion that the ritual laws may be set aside under stress of necessity and for a higher good. In that same chapter (12:10-13) He indicates the lawfulness of healing-doing good-on the Sabbath day.
(a) Traditions of the Elders and the 5th Commandment:
In Matthew 15:1-6 we have the account of the Pharisees complaining that the disciples transgressed the traditions of the elders by eating with unwashed hands. Jesus retorts upon them with the question: "Why do ye also transgress the commandment of God because of your tradition?" citing the specific case of the 5th commandment which was evaded and virtually broken by their ingenious distinction of qorban. This is a very instructive incident in its bearing upon the point which we have sought to enforce-that it was the traditional interpretation and not the Law itself which Jesus condemned or corrected.
(b) Christ's Answer to the Young Ruler:
To the young ruler (Matthew 19:16-42) He presents the commandments as the rule of life, obedience to which is the door to eternal life, especially emphasizing the manward aspect of the Law's claims. The young man, professing to have kept them all, shows that he has not grasped the spirituality of their requirements, and it is further to test him that Christ calls upon him to make the "great renunciation" which, after all, is not in itself an additional command so much as the unfolding of the spiritual and far-reaching character of the command, "Love thy neighbor as thyself."
(c) Christ's Answer to the Lawyer:
To the lawyer who asks Him which is the great commandment in the Law, He answers by giving him the sum of the whole moral law. "Thou shalt love the Lord thy God with all thy heart, and with all thy soul, and with all thy mind. This is the great and first commandment. And a second like unto it is this, Thou shalt love thy neighbor as thyself" (Matthew 22:35-39). In Mark's report (Mark 12:31), He adds, "There is none other commandment greater than these," and in that of Matthew He says, "On these two commandments the whole law hangeth, and the prophets" (Matthew 22:40); both utterances showing the high estimation in which He held the Law.
(d) References in the Fourth Gospel:
In His discussion with the Jews, recorded in John 7, He charges them with failure to keep the Law: "Did not Moses give you the law, and yet none of you doeth the law?" (7:19). And referring to the healing of the impotent man on the Sabbath day, a deed which had roused their ire, He shows how one law may conflict with another. Moses had enjoined circumcision, and sometimes the time for circumcising would fall on the Sabbath day. Yet with all their reverence for the Sabbath day, they would, in order to keep the law of circumcision, perform the rite on the Sabbath day, and so, He argues, it is unreasonable to complain of Him because on the Sabbath day He had fulfilled the higher law of doing good, healing a poor sufferer. In none of all Christ's utterances is there any slight thrown upon the Law itself; it is always held up as the standard of right and its authority vindicated.
2. The Law in Relation to the Life of Christ:
The passages we have considered show the place of the Law in the teaching of Christ, but we also find that He had to sustain a practical relation to that Law. Born under the Law, becoming part of a nation which honored and venerated the Law, every part of whose life was externally regulated by it, the life of Jesus Christ could not fail to be affected by that Law. We note its operation:
(1) In His Infancy.
On the eighth day He was circumcised (Luke 2:21), thus being recognized as a member of the covenant nation, partaking of its privileges, assuming its responsibilities. Then, according to the ritual law of purification, He is presented in the temple to the Lord (Luke 2:22-24), while His mother offers the sacrifice enjoined in the "law of the Lord," the sacrifice she brings pathetically witnessing to her poverty, "a pair of turtle doves, or two young pigeons" being the alternative allowed to those who were not able to provide a lamb (Leviticus 12). The Divine approval is set upon this consecrating act, for it is while it is being done concerning Him after "the custom of the law" (Leviticus 12:27), that the Spirit of God comes upon Simeon and prompts the great prophecy which links all the Messianic hopes with the Baby of Bethlehem.
Again, according to the Law His parents go up to the Passover feast when the wondrous child has reached His 12th year, the age when a youthful Jew assumed legal responsibility, becoming "a son of the Law," and so Jesus participates in the festal observances, and His deep interest in all that concerns the temple-worship and the teaching of the Law is shown by His absorption in the conversation of the doctors, whose questions He answers so intelligently, while questioning them in turn, and filling them with astonishment at His understanding (Luke 2:42-47).
(2) In His Ministry.
In His ministry He ever honors the Law. He reads it in the synagogue. He heals the leper by His sovereign touch and word, but He bids him go and show himself to the priest and offer the gift that Moses commanded (Matthew 8:4). And again, when the lepers appeal to Him, His response which implies the healing is, "Go and show yourselves unto the priests" (Luke 17:14). He drives out of the temple those that defile it (Matthew 21:12, 13 John 2:15-17), because of His zeal for the honor of His Father's house, and so, while showing His authority, emphasizes the sanctity of the temple and its services. So, while claiming to be the Son in the Father's house, and therefore above the injunctions laid upon the servants and strangers, He nevertheless pays the temple-tax exacted from every son of Israel (Matthew 17:24-27). He attends the various feasts during His ministry, and when the shadows of death are gathering round Him, He takes special pains to observe the Passover with His disciples. Thus to the ceremonial law He renders continuous obedience, the motto of His life practically being His great utterance to the Baptist: "Suffer it now: for thus it becometh us to fulfill all righteousness" (Matthew 3:15). If He obeyed the ceremonial law, unquestionably He obeyed the moral law. His keenest-eyed enemies could find no fault in Him in regard to His moral conduct. His absolute sinlesshess attests the translation of the moral law into actual life.
3. The Law in Relation to the Death of Christ:
We enter not upon theological question as to the relation of the death of Christ to the penal inflictions of the Law Divinely enforced on behalf of sinners-that touches the doctrine of the Atonement-we only note the fact that His death was brought about in professed accordance with the Law. The chief priests, in hatred, sent officers to take Him, but overawed by His matchless eloquence, these officers returned empty-handed. In their chagrin, the chief priests can only say that the people who follow Him now not the Law and are cursed (John 7:49). Nicodemus, on this occasion, ventures to remonstrate: "Doth our law judge a man, except it first hear from himself?" (John 7:51). This sound legal principle these men are bent on disregarding; their one desire is to put an end to the life of this man, who has aroused their jealousy and hatred, and at last when they get Him into their hands, they strain the forms of the Law to accomplish their purpose. There is no real charge that can be brought against Him. They dare not bring up the plea that He broke the Sabbath, for again and again He has answered their cavils on that score. He has broken no law; all they can do is to bribe false witnesses to testify something to His discredit. The trumpery charge, founded upon a distorted reminiscence of His utterance about destroying the temple, threatens to break down.
(1) Christ Charged with Blasphemy under the Jewish Law.
Then the high priest adjures Him to say upon oath whether or not He claims to be the Christ, the Son of the Living God. Such a claim would assuredly, if unfounded, be blasphemy, and according to the Law, be punishable by death. On a previous occasion the Jews threatened to stone Him for this-to them-blasphemous claim. Now when Jesus calmly avows that He is the Son of God, the high priest, rending his clothes, declares that no further proof is needed. He has confessed to the blasphemy, and unanimously the council votes Him worthy of death (Matthew 26 Mark 14 Luke 22). If Jesus Christ were not what He claimed to be, then the priests were right in holding Him guilty of blasphemy; it never occurred to them to consider whether the claim after all might not be true.
(2) Christ Charged with Treason under the Roman Law.
Not only is the Jewish law invoked to accomplish His death, but also the Roman law. On one other occasion Christ had come into touch with the law of Rome, namely, when asked the ensnaring question by the Herodians as to the lawfulness of giving tribute to Caesar (Matthew 22:17 Mark 12:14 Luke 20:22). Now the Jews need the Roman governor's authorization for the death penalty, and Jesus must be tried before him. The charge cannot now be blasphemy-the Roman law will have nothing to say to that-and so they trump up a charge of treason against Caesar.
In preferring it, they practically renounce their Messianic hopes. The charge, however, breaks down before the Roman tribunal, and only by playing on the weakness of Pilate do they gain their end, and the Roman law decrees His death, while leaving the Jews to see to the carrying out of the sentence. In this the evangelist sees the fulfillment of Christ's words concerning the manner of His death, for stoning would have been the Jewish form of the death penalty, not crucifixion.
SeeJESUS CHRIST, III, E), ii, 3, 4.
4. How Christ Fulfilled the Law in All Its Parts:
Looking at the whole testimony of the Gospels, we can see how it was that Christ fulfilled the Law. He fulfilled the moral law by obeying, by bringing out its fullness of meaning, by showing its intense spirituality, and He established it on a surer basis than ever as the eternal law of righteousness. He fulfilled the ceremonial and typical law, not only by conforming to its requirements, but by realizing its spiritual significance. He filled up the shadowy outlines of the types, and, thus fulfilled, they pass away, and it is no longer necessary for us to observe the Passover or slay the daily lamb: we have the substance in Christ. He also cleared the Law from the traditional excrescences which had gathered round it under the hands of the rabbis. He showed that the ceremonial distinction between meats clean and unclean was no longer necessary, but showed the importance of true spiritual purity (Matthew 15:11 Mark 7:18-23). He taught His disciples those great principles when, after His resurrection, "beginning from Moses and from all the prophets, he interpreted to them in all the scriptures the things concerning himself" (Luke 24:27). And as He opened their mind that they might understand the Scriptures, He declared, "These are my words which I spake unto you, while I was yet with you, that all things must needs be fulfilled, which are written in the law of Moses, and the prophets, and the psalms, concerning me" (Luke 24:44). John sums this up in his pregnant phrase, "The law was given through Moses; grace and truth came through Jesus Christ" (John 1:17). The grace was in contrast to the condemnation of the moral law, the truth was the antithesis to the shadowy outline of the types and ceremonies.
II. Law in the Acts of the Apostles.
Without considering questions of authenticity and historicity in relation to this book which professes to be the earliest church history, we briefly note the place of the Law therein indicated. In the book we have an account of the transition from Judaism to fully developed Christianity, and the Law comes into view in various ways. The disciples, like other Jews, observe the feast of Pentecost, and even after the descent of the Spirit, they frequent the temple and observe the hours of prayer.
1. Stephen's Witness:
The full-orbed gospel proclaimed by Stephen arouses the suspicion and enmity of the stricter sects of the Jews, who accuse him before the council of speaking blasphemous words against the holy place and the Law. But this was the testimony of suborned witnesses, having doubtless its foundation in the fact that Stephen's teaching emphasized the grace of the gospel. Stephen's own defense honors the Law as given by Moses, "who received living oracles" (Acts 7:38), shows how disloyal the people had been, and closes by charging them not only with rejecting and slaying the Righteous One, but of failing to keep the Law "as it was ordained by angels" (Acts 7:53).
2. Practice of Peter and Paul:
Peter's strict observance of the ceremonial law is shown in connection with his vision which teaches him that the grace of God may pass beyond the Jewish pale (Acts 10). Paul's preaching emphasizes the fulfilling the Scriptures, Law and Prophecy, by Jesus Christ. The gist of his message, as given in his first reported sermon, is, "By him everyone that believeth is justified from all things, from which ye could not be justified by the law of Moses" (Acts 13:38 f). The conversion of the Gentiles brings up the question of their relation to the ceremonial law, specifically to circumcision. The decision of the council at Jerusalem treats circumcision as unnecessary for the Gentiles, and only enjoins, in relation to the Mosaic ritual, abstinence from things strangled and from blood (Acts 15). The after-course of events would show that this provision was for the time of transition.
Read Complete Article...
LAW IN THE OLD TESTAMENT
" I. TERMS USED
1. Torah ("Law")
2. Synonyms of Torah
(1) Mitswah ("Command")
(2) `Edhah ("Witness," "Testimony")
(3) MishpaTim ("Judgments")
(4) Chuqqim ("Statutes")
(5) Piqqudhim ("Precepts")
II. THE WRITTEN RECORD OF THE LAW
1. The Critical Dating of the Laws
2. Groups of Laws in P (the Priestly Code)
3. The Book of the Covenant
(1) Judgments. Compared with Code of Hammurabi
(2) Basis of Law of Covenant. Earlier Customs
4. The Book of the Law of Deuteronomy 31
5. The Law of Holiness
6. The Final Compilation
III. THE GENERAL CHARACTER AND DESIGN OF THE LAW
1. The Civil Law
(1) Servants and the Poor
(4) Sabbaths and Feasts
2. The Ceremonial Law
(1) Origin of Sacrifice
(2) The Levitical Ritual
(3) The Law Truly a Torah
IV. THE PASSING AWAY OF THE LAW
Law, at least as custom, certainly existed among the Hebrews in the times before Moses, as appears from numerous allusions to it, both in matters civil and ceremonial, in the earlier Scriptures. But we have no distinct account of such law, either as to its full contents or its enactment. Law in the Old Testament practically means the Law promulgated by Moses (having its roots no doubt in this earlier law or custom), with sundry later modifications or additions, rules as to which have been inserted in the record of the Mosaic law.
The following are matters of pre-Mosaic law or custom to which allusion is made in Genesis and Exodus: the offering of sacrifice and the use of altars (Genesis, passim); the religious use of pillars (Genesis 28:18); purification for sacrifice (Genesis 35:2); tithes (Genesis 14:20; Genesis 28:22); circumcision (Genesis 17:10 Exodus 4:25 f); inquiry at a sanctuary (Genesis 25:22); sacred feasts (Exodus 5:1, etc.); priests (Exodus 19:22); sacred oaths (Genesis 14:22); marriage customs (Genesis 16; 24; 25:06:00; 29:16-30); birthright (Genesis 25:31-34); elders (Genesis 24:2; Genesis 50:7 Exodus 3:16); homicide (Genesis 9:6), etc. We proceed at once to the Law of Moses.
I. Terms Used.
The Hebrew word rendered "law" in our Bibles is torah. Other synonymous words either denote (as indeed does torah itself) aspects under which the Law may be regarded, or different classes of law.
1. Torah ("Law"):
Torah is from horah, the Hiphil of yarah. The root meaning is "to throw"; hence, in Hiphil the word means "to point out" (as by throwing out the hand), and so "to direct"; and torah is "direction." Torah may be simply "human direction," as the "law of thy mother" in Proverbs 1:8; but most often in the Old Testament it is the Divine law. In the singular it often means a law, the plural being used in the same sense; but more frequently torah in the singular is the general body of Divinely given law. The word tells nothing as to the way in which the Law, or any part of it, was first given; it simply points out the general purpose of the Law, namely, that it was for the guidance of God's people in the various matters to which it relates. This shows that the end of the Law lay beyond the mere obedience to such and such rules, that end being instruction in the knowledge of God and of men's relation to Him, and guidance in living as the children of such a God as He revealed Himself to be. This is dwelt upon in the later Scriptures, notably in Psalm 19 and Psalm 119.
In the completed Canon of the Old Testament, torah technically denotes the Pentateuch (Luke 24:44) as being that division of the Old Testament Scriptures which contains the text of the Law, and its history down to the death of Moses, the great lawgiver.
2. Synonyms of Torah:
(1) Mitswah ("Command")
Mitswah, "command" (or, in the plural, "commands"), is a term applied to the Law as indicating that it is a charge laid upon men as the expression of God's will, and therefore that it must be obeyed.
(2) `Edhah ("Witness," "Testimony")
`Edhah, "witness" or "testimony" (in plural "testimonies"), is a designation of God's law as testifying the principles of His dealings with His people. So the ark of the covenant is called the "ark of the testimony" (Exodus 25:22), as containing "the testimony" (Exodus 25:16), i.e. the tables of the Law upon which the covenant was based. The above terms are general, applying to the torah at large; the two next following are of more restricted application.
(3) MishpaTim ("Judgments")
MishpaTim, "judgments": MishpaT in the singular sometimes means judgment in an abstract sense, as in Genesis 18:19 Deuteronomy 32:4; sometimes the act of judging, as in Deuteronomy 16:18, 19; Deuteronomy 17:9; Deuteronomy 24:17. But "judgments" (in the plural) is a term constantly used in connection with, and distinction from, statutes, to indicate laws of a particular kind, namely, laws which, though forming part of the torah by virtue of Divine sanction, originated in decisions of judges upon cases brought before them for judgment. See further below.
(4) Chuqqim ("Statutes")
Chuqqim, "statutes" (literally, "laws engraven"), are laws immediately enacted by a lawgiver. "Judgments and statutes" together comprise the whole law (Leviticus 18:4 Deuteronomy 4:1, 8 the King James Version). So also we now distinguish between consuetudinary and statute law.
(5) Piqqudhim ("Precepts")
Piqqudhim, "precepts": This term is found only in the Psalms. It seems to mean rules or counsels provided to suit the various circumstances in which men may be placed. The term may perhaps be meant to apply both to the rules of the actual torah, and to others found, e.g. in the writings of prophets and "wise men."
II. The Written Record of the Law.
The enactment of the Law and its committal to writing must be distinguished. With regard to the former, it is distinctly stated (John 1:17) that "the law was given through Moses"; and though this does not necessarily imply that every regulation found in the Pentateuch is his, a large number of the laws are expressly ascribed to him. As regards the latter, we are distinctly told that Moses wrote certain laws or collections of laws (Exodus 17:14; Exodus 24:4, 7 Deuteronomy 31:9). These, however, form only a portion of the whole legislation; and therefore, whether the remaining portions were written by Moses, or-if not by him-when and by whom, is a legitimate matter of inquiry.
It is not necessary here to discuss the large question of the literary history of the Pentateuch, but it must briefly be touched upon. The Pentateuch certainly appears to have reached its present form by the gradual piecing together of diverse materials. Deuteronomy (D) being a separate composition, a distinction would seem to have been clearly established by critical examination between a number of paragraphs in the remaining books which apparently must once have formed a narrative by themselves, and other paragraphs, partly narrative but chiefly legislative and statistical, which appear to have been subsequently added. Without endorsing any of the critical theories as to the relation of these, one to the other, or as to the dates of their composition, we may, in a general way, accept the analysis, and adopt the well-known symbol JE (Jahwist-Elohim) to distinguish the former, and P (Priestly Code) the latter. Confining ourselves to their legislative contents, we find in JE a short but very important body of law, the Law of the Covenant, stated in full in Exodus 20-23, and repeated as to a portion of it in Exodus 34:10-28. All the rest of the legislation is contained in P and Deuteronomy.
1. The Critical Dating of the Laws:
We are distinctly told in Exodus that the law contained in Exodus 20-23 was given through Moses. Rejecting this statement, critics of the school of Wellhausen affirm that its true date must be placed considerably later than the time of Joshua. They maintain that previous to their conquest of Canaan the Israelites were mere nomads, ignorant of agriculture, the practice of which, as well as their culture in general, they first learned from the conquered Canaanites. Therefore (so they argue), as the law of Exodus 20-23 presupposes the practice of agriculture, it cannot have been promulgated until some time in the period of the Judges at the earliest; they place it indeed in the early period of the monarchy. All this, however, is mere assumption, support for which is claimed in some passages in which a shepherd life is spoken of, but with utter disregard of others which show that both in the patriarchal period and in Egypt the Israelites also cultivated land. See B.D. Eerdmans, "Have the Hebrews Been Nomads?" The Expositor, August and October, 1908. It can indeed be shown that this law was throughout in harmony with what must have been the customs and conceptions of the Israelites at the age of the exodus (Rule, Old Testament Institutions). Professor Eerdmans in his Alttestamentliche Studien, Part III (1910), vigorously defends the Mosaic origin of the Book of the Covenant.
The same critics bring down the date of the legislation of Deuteronomy to the time of Josiah, or at most a few years earlier. They affirm (wrongly) that the chief object of Josiah's reformation narrated in 2 Kings 23 was the centralization of worship at the temple in Jerusalem. They rightly attribute the zeal which carried the reform through to the discovery of the "Book of the Law" (22:8). Then arguing that the frequent previous practice of worship at high places implied the non-existence of any law to the contrary, they conclude that the rule of Deuteronomy 12 was a rule recently laid down by the temple priesthood, and written in a book in Moses' name, this new book being what was "found in the house of Yahweh." But this argument is altogether unsound: its grave difficulties are well set out in Moller's Are the Critics Right? And here again careful study vindicates the Mosaic character of the law of Deuteronomy as a whole and of Deuteronomy 12 in particular. M. Edouard Naville in La decouverte de la loi sous le roi Josias propounds a theory which he supports by a most interesting argument: that the book found was a foundation deposit, which must therefore have been built over by masonry at the erection of the temple by Solomon.
Equally unsound, however plausible, are the arguments which would make the framing of the Levitical ritual the work of the age of Ezra. The difficulties created by this theory are far greater than those which it is intended to remove. On this also see Moller, Are the Critics Right?
Rejecting these theories, it will be assumed in the present article that the various laws are of the dates ascribed to them in the Pentateuch; that whatever may be said as to the date of some "of the laws," all which are therein ascribed to Moses are truly so ascribed.
2. Groups of Laws in P (the Priestly Code):
The laws in P are arranged for the most part in groups, with which narrative is sometimes intermingled. These e.g. are some of the groups: Exodus 25-31; Leviticus 1-7; 15-Nov; Numbers 1-4, etc. The structure and probable history of these groups are very interesting. That many of them must have undergone interpolation appears certain from the following considerations. Each of the groups, and often one or more paragraphs within a group, is headed by a recurring formula, "Yahweh spake unto Moses (or unto Aaron, or unto Moses and Aaron), saying." We might at first expect that the contents of each group or paragraph so headed would consist solely of what Yahweh had said unto Moses or Aaron, but this is not always so. Not infrequently some direction is found within such a paragraph which cannot have been spoken to Moses, but must have come into force at some later date. Unless then we reject the statement of the formula, unless we are prepared to say that Yahweh did not speak unto Moses, we can only conclude that these later directions were at some time inserted by an editor into paragraphs which originally contained Mosaic laws only. That this should have been done would be perfectly natural, when we consider that the purpose of such an editor would be not only to preserve (as has been done) the record of the original Law, but to present a manual of law complete for the use of his age, a manual (to use a modern phrase) made complete to date.
That the passages in question were indeed interpolations appears not only from the fact that their removal rids the text of what otherwise would be grave discrepancies, but because the passages in question sometimes disturb the sequence of the context. Moreover, by thus distinguishing between laws promulgated (as stated) by Moses, and laws to which the formula of statement was not intended to apply, we arrive at the following important result. It is that the former laws can all be shown to be in harmony one with another and with the historical data of the Mosaic age; while the introduction of the later rules is also seen to be what would naturally follow by way of adaptation to the circumstances of later times, and the gradual unfolding of Divine purpose.
It would be much too long a task here to work this out in detail: it has been attempted by the writer of this article in Old Testament Institutions, Their Origin and Development. Two instances, however, may be mentioned.
Instances of interpolation-In Exodus 12:43; (English Revised Version) we read, "This is the ordinance of the passover: there shall no alien eat thereof; but every man's servant that is bought for money, when thou hast circumcised him, then shall he eat thereof. A sojourner and a hired servant shall not eat thereof." This was the original Mosaic rule introduced by the formula in 12:43. But in 12:48, 49 it is said that sojourners (when circumcised) may eat of the passover. This was plainly a relaxation of later date, made in accordance with the principle which is enlarged upon in Isaiah 56:3-8.
According to Leviticus 23:34, 39 a, 40-42, the Feast of Tabernacles was a feast of seven days only. This was the Mosaic rule as appears from the formula in 23:33, and in certain other passages. But as a development in the feast's observance, an eighth day was subsequently added, and therefore insertions to that effect were made here at 23:36 and 39b. The introduction of this additional day would be in keeping with that elaboration in the observance of the "set feasts" which we find in Numbers 28 and 29, as compared with the simpler observance of the same days ordered in Leviticus 23. Here again the formula in Numbers 28:1 plainly covered a few verses immediately following, but not the whole content of the two chapters.
Premising then the existence in writing from an early age of numerous groups of Mosaic laws and their subsequent interpolation, the ultimate compilation of these groups together with other matter and their arrangement in the order in which we now find them must have been the work, perhaps indeed of the interpolator, but in any case of some late editor. These numerous groups do not, however, make up the whole legislative contents of the Pentateuch; for a very large portion of these contents consists of three distinct books of law, which we must now examine. These were the "Book of the Covenant," the "Book of the Law" of Deuteronomy 31:26, and the so-called "Law of Holiness."
3. The Book of the Covenant:
This book, expressly so named (Exodus 24:7), is stated to have been written by Moses (24:3, 1). It must have comprised the contents of Exodus 20-23. The making of the covenant at Sinai, led up to by the revealing words of Exodus 3:12-17; Exodus 6:2-8; 19:3-6, was a transaction of the very first importance in the religious history of Israel. God's revelation of Himself to Israel being very largely, indeed chiefly, a revelation of His moral attributes (Exodus 34:6, 7), could only be effectively apprehended by a people who were morally fitted to receive it. Hence, it was that Israel as a nation was now placed by God in a stated relation to Himself by means of a covenant, the condition upon which the covenant was based being, on His people's part, their obedience to a given law. This was the law contained in the "Book of the Covenant."
It consisted of "words of Yahweh" and "Judgments" (Exodus 24:3 the King James Version). The latter are contained in Exodus 21:1-22:17; the former in Exodus 20, in the remaining portion of Exodus 22, and Exodus 23. The "judgments" (the American Standard Revised Version "ordinances") relate entirely to matters of right between man and man; the "words of Yahweh" relate partly to these and partly to duties distinctively religious.
(1) Judgments. Compared with Code of Hammurabi.
The "judgments" appear to be taken from older consuetudinary law; not necessarily comprising the whole of that law, but so much of it as it pleased God now to stamp with His express sanction and to embody in this Covenant Law. They may well be compared with those contained in the so-called Code of Hammurabi, king of Babylon, who is thought to have been the Amraphel of Genesis 14. These are called "the judgments of righteousness which Hammurabi the mighty king confirmed." The resemblances in form and in subject between the two sets of "judgments" are very striking. All alike have the same structure, beginning with a hypothetical clause, "if so and so," and then giving the rule applicable in the third person. All alike relate entirely to civil, as distinguished from religious, matters, to rights and duties between man and man. All seem to have had a similar origin in judgments passed in the first place on causes brought before judges for decision: both sets therefore represent consuetudinary law.
(2) Basis of Law of Covenant. Earlier Customs.
It is remarkable that, alike in matters of right between man and man, and in matters relating directly to the service of God, the Law of the Covenant did little (if anything) more than give a new and Divinely attested sanction to requirements which, being already familiar, appealed to the general conscience of the community. If, indeed, in the "words of Yahweh" there was any tightening of accustomed moral or (more particularly) religious requirements, e.g. in the first and second commandments of the Decalogue, it would seem to have been by way of enforcing convictions which must have been already gaining hold upon the minds of at least the more thoughtful of the people, and that in large measure through the lessons impressed upon them by the events of their recent history. In no other Way could the Law of the Covenant have appealed to their conscience, and so formed a foundation on which the covenant could be securely based.
As in the "judgments" we have a ratification of old consuetudinary law; as again in the second table of the Decalogue we have moral rules in accordance with a standard of moral right-no doubt already acknowledged-very similar indeed to that of the "negative confession" in the Egyptian Book of the Dead; so in the more especially religious rules of the Law of the Covenant we find, not new rules or an establishment of new institutions, but a new sanction of what was already old. These "words of Yahweh" assume the rendering of service to Yahweh: they do not enjoin it as if it were a new thing, but they enjoin that the Israelites shall not add to His service also the service of other gods (Exodus 20:3; Exodus 23:24). They assume the observance of the three "feasts," they enjoin that these shall be kept to Yahweh-"unto me," i.e. "unto me only" (Exodus 23:14, 17). They assume the making of certain offerings to Yahweh, they enjoin that these shall be made liberally-"of the first," i.e. of the best-and without delay (Exodus 22:29 f). They assume the rendering of worship by sacrifice, and the existence of an accustomed ritual, and therefore they do not lay down any scheme of ritual, but they give a few directions designed to guard against idolatry, or any practices tending either to irreverence or to low and false conceptions of God (Exodus 20:4-6, 23-26; Exodus 22:31; Exodus 23:18 f). While insisting upon the observance of the three "feasts," spoken of as already accustomed, it is remarkable that they contain no command to keep the Passover, which as an annual observance was not yet an accustomed thing.
This absence of ritual directions is indeed very noticeable. It was in the counsel of God that He would in the near future establish a reconstituted ritual, based upon what was already traditional, but containing certain new elements, and so framed as more and more to foster spiritual conceptions of God and a higher ideal of holiness. This however was as yet a thing of the future. No mention therefore was made of it in the Law of the Covenant; that law was so restricted as that it should at once appeal to the general conscience of the people, and so be a true test of their desire to do what was right. This would be the firm basis on which to build yet higher things. It is impossible to estimate the true character of the subsequent legislation, i.e. of what in bulk is by far the larger part of the torah-except by first grasping the true character and motive of the Covenant, and the Covenant Law.
See also COVENANT, BOOK OF THE; PENTATEUCH.
4. The Book of the Law of Deuteronomy 31:
Immediately after the making of the Covenant, Moses was called up into the mount, and there received instructions for the erection of the tabernacle, these being followed in due course by the rules of the reconstituted ceremonial of which the tabernacle was to be the home. All these for the present we must pass over.
Having arrived on the East of the Jordan, Moses, now at the close of his career, addressed discourses to the people, in which he earnestly exhorted them to live up to the high calling with which God had called them, in the land of which they were about to take possession. To this end he embodied in his discourse a statement of the Law by which they were to live. And then, as almost his last public act, he wrote "the words of this law in a book," and directed that the book should be placed "by the side of the ark of the covenant" (Deuteronomy 31:24-26). What now was this book? Was it Deuteronomy, in whole or in part? The most reasonable answer to this question is that the book actually written by Moses comprised at least the contents of Deuteronomy 5-26 and 28. Whether the whole or any parts of the remaining contents of Deuteronomy also formed part of this book, or were subsequently added to it, the whole being brought by a process of editing to our present Deuteronomy, is again a legitimate matter of inquiry.
Characteristics of Deuteronomy.
Regarding Deuteronomy 5-26 and 28 (with or without parts of other chapters) as the "book" of Deuteronomy 31:24-26, we find that it is a manual of instruction for the people at large-it is not a priest's manual. It deals with matters of morals, and of religion in its general principles, but only subordinately with matters of ritual: it warns against perils of idolatry and superstitious corruptions, common in the service of other gods, but which might by no means be mixed up with Yahweh's seryice: it insists upon righteous conduct between man and man, and very strongly inculcates humanity toward the poor and the dependent: it enjoins upon those in authority the impartial maintenance of right, as also fairness, moderation and mercy, in the administration of law and the infliction of punishment: it sets forth the fear of God as the guide of His people's actions, and the love of God in response to His mercy toward them. It does not lay down any scheme of ritual, though it gives rules (Deuteronomy 4:3-21) as to things which might not be eaten as unclean; it also gives directions as to the disposal of tithes (Deuteronomy 14:22-29; Deuteronomy 26:12); it enlarges upon the direction in the Law of the Covenant for the observance of the three "feasts," adding to this the observance of the Passover (Deuteronomy 16); it lays down a law (expressed conditionally) restricting to one sanctuary the offering of at least the more solemn sacrifices (Deuteronomy 12); and it frequently inculcates liberality toward the Levites, both on account of the sacred services rendered by them, their dispersal among the tribes, and the precarious character of their livelihood. Like the Law of the Covenant it assumes the existence of an accustomed ceremonial, and it is remarkable that when there is occasion to do so it makes use of phraseology (Deuteronomy 12) similar to that of the ritual laws of Moses in Leviticus and Numbers.
It is quite possible that some interpolations may have been made in the text of Deuteronomy 5-26, but not on any sufficient scale to affect the general character of the original book. This "Book of the Law" then was an expansion of the Law of the Covenant, enforcing its principles, giving directions in greater detail for carrying them out, and setting them in a framework of exhortation, warning and encouragement. Thus, its relation to the covenant is indicated by Deuteronomy 26:16-19; Deuteronomy 29:1. This is that "book of the Law of Moses" of which frequent mention is made in the books of Kings, Chronicles, Ezra and Nehemiah.
5. The Law of Holiness:
In marked contrast to the numerous rules, sometimes intermingled with narrative, which we find in Exodus 25-40; Leviticus 1-16, and throughout Numbers, we have in Leviticus 17-26 a collection of laws which evidently was once a book by itself. This, from its constant insistence upon holiness as a motive of conduct, has been called "the Law of Holiness." Though it contains many laws stated to have been spoken by Yahweh to Moses, we are not told by whom it was written, and therefore its authorship and date are a fair subject of inquiry. In its general design it bears much resemblance to the Law of the Covenant, and the Book of the Law contained in Deuteronomy. As in them, and especially in the latter, the laws are set up in a parenetic framework, the whole closing with promise of reward for obedience and a threat of punishment for disobedience (compare Exodus 23:20-33 Leviticus 26 Deuteronomy 28). Like them it deals much with moral duties: Leviticus 19 and 20 are practically an expansion of the Decalogue; but it deals also more than they do with ceremonial. With regard to both it sets forth as the motive of obedience the rule, "Be ye holy, for I am holy."
A Clue as to Date
A clue to its date is to be found in its conception of cleanness. The idea found in the Prophets and the New Testament that moral wrongdoing renders unclean must be based upon some earlier conception, namely, upon the Old Testament conception of ritual uncleanness. Now ritual uncleanness was originally physical uncleanness only; the idea of moral right or wrong did not enter into it at all: this is perfectly clear from the whole contents of Leviticus 11-15. On the other hand we find the idea of moral cleanness and uncleanness fully formed in the Psalms, Proverbs, and in the Prophets, including the earlier prophets, Amos, Hosea, and Isaiah. In H (the Law of Holiness, Leviticus 17-26) we find an intermediate conception. We find that whereas in Leviticus 11-15 sexual acts which were lawful rendered unclean equally with those which were unlawful, in H, adultery and incest are denounced as rendering specially unclean, the idea being that their technical uncleanness became more intensely unclean through their immorality (Leviticus 18:24-30). Similarly, converse with familiar spirits and wizards, which probably involved physical defilement (perhaps through the ingredients used in charms), is mentioned as specially causing defilement, probably as such technical defilement would be intensified by the unlawfulness of dealing with familiar spirits and wizards at all (Leviticus 19:31). Sins, however, which did not in themselves entail physical uncleanness, such e.g. as injustice, are not mentioned in H as rendering unclean, though they are so regarded in the Prophets.
Read Complete Article...
joo-dish'-al: This was the form of Divine law which, under the dominion of God, as the Supreme Magistrate, directed the policy of the Jewish nation, and hence, was binding only on them, not on other peoples. The position of Yahweh, as the Supreme Ruler, was made legally binding by a formal election on the part of the national assembly (Exodus 19:3-8); and that there might be no question about the matter, after the death of Moses, Joshua, in accordance with instructions received by his great predecessor in the office of federal judge, in the public assembly caused the contract to be renewed in connection with most solemn exercises (Joshua 8:30-35). No legal contract was ever entered into with more formality and with a clearer understanding of the terms by the several parties than was the contract which made it binding on the Hebrews permanently to recognize Yahweh as the Supreme Ruler (Exodus 24:3-8). He was to be acknowledged as the Founder of the nation (Exodus 20:2); Sovereign, Ruler, and Judge (Exodus 20:2-6); and in these capacities was to be the object of love, reverential fear and worship, service, and absolute obedience. Flagrant disregard of their obligations to Him manifested in idolatry or blasphemy was regarded as high treason, and like high treason in all nations and history was punishable by death (Exodus 20:3-5, 7; Exodus 22:20 Leviticus 24:16 Deuteronomy 17:2-5). The will of Yahweh in critical cases was to be ascertained through special means (Numbers 9:8 Judges 1:1, 2; Judges 20:18, 23, 28 1 Samuel 10:22).
The ruling official recognized by the Hebrews as a nation was the chief magistrate, but he stood as Yahweh's vicegerent, and therefore combined various authorities in his person. We must distinguish the functions of the chief magistrate (1) under the republic, (2) under the constitutional monarchy, and (3) under the senatorial oligarchy after the Babylonian captivity. Moses was the first chief magistrate under the republic; after him, Joshua, and the other judges. Under the constitutional monarchy, it was the king whose government was limited, for he was to be elected by the people; must be a native Hebrew; must not keep a large cavalry; must not support a harem; must not multiply riches; must be a defender of the national religion; must be guided by law, not whim; must be gracious and condescending to the people (Deuteronomy 17:15-20). After the Babylonian captivity, the senatorial oligarchy combined ecclesiastical and state authority, later sharing it with the Roman government.
See also SANHEDRIN.
Frank E. Hirsch
" I. ROMAN PRIVATE LAW
1. The Twelve Tables
2. Civil Procedure
3. Jus honorarium
4. The praetor peregrinus
5. Imperial Ordinances
6. Golden Age of Juristic Literature
7. Codification in the Later Empire
II. ROMAN CRIMINAL LAW
1. Jurisdiction in the Royal Period
2. The Right of Appeal
(2) The Porcian Law
3. Popular Jurisdiction Curtailed
5. Disappearance of Criminal Courts
6. Right of Trial at Rome
In the present article we shall treat (I) Roman Private Law and (II) Criminal Law only, reserving a consideration of the development of the principles of constitutional law for the article on ROME, since it is so closely interwoven with the political history of the state.
It will be necessary to confine the discussion of private law to its external history, without attempting to deal with the substance of the law itself. In the treatment of criminal law attention will be directed chiefly to the constitutional guaranties which were intended to protect Roman citizens against arbitrary and unjust punishments, these being one of the most important privileges of Roman citizenship.
Roman law found its original source in the family as a corporation. The proprietary rights of the pater familias as representative of this primitive unit of organization are a fundamental element in private law, and the scope of the criminal jurisdiction of the state was limited by the power of life and death which was exercised by the head of the family over those who were under his authority, by virtue of which their transgressions were tried before the domestic tribunal.
It is likewise of fundamental importance to recall the fact that before the earliest period in the history of Roman law of which we have positive information, there must have been a time when a large number of different classes of crime were punished by the priests as sacrilege, in accordance with divine law (fas), by putting the offender to death as a sacrifice to the offended deity, while restitution for private violence or injustice was left to private initiative to seek. For a law of the Twelve Tables that the person guilty of cutting another's grain by night should be hanged, as an offering to Ceres, is a survival of the older religious character of condemnation to death, and the right to kill the nocturnal thief and the adulterer caught in the act may be cited as survivals of primitive private vengeance The secular conception of crime as an offense against the welfare of the state gradually superseded the older conception, while private law arose when the community did away with the disorder incident to the exercise of self-help in attempting to secure justice, by insisting that the parties to a disagreement should submit their claims to an arbitrator.
I. Roman Private Law.
1. The Twelve Tables:
Roman private law was at first a body of unwritten usages handed down by tradition in the patrician families. The demand of the plebeians for the publication of the law resulted in the adoption of the famous Twelve Tables (449 B.C.), which was looked upon by later authorities as the source of all public and private law (quae nunc quoque in hoc immenso aliarum super alias acervatarum legum cumulo fons omnis publici privdtique est iuris: Livy iii.34, 6), although it was not a scientific or comprehensive code of all the legal institutions of the time. This primitive system of law was made to expand to meet the growing requirements of the republican community chiefly by means of interpretation and the jus honorarium, which corresponds to equity.
2. Civil Procedure:
The function of interpretation may be defined by mentioning the principal elements in civil procedure. The praetor, or magistrate, listened to the claims of the litigants and prepared an outline of the disputed issues, called a formula, which was submitted to the judex, or arbitrator, a jury, as it were, consisting of one man, who decided the questions of fact involved in the case. Neither praetor nor judex had special legal training. The court had recourse, therefore, for legal enlightenment to those who had gained distinction as authorities on the law, and the opinions, or responsa, of these scholars (jurisprudentes) formed a valuable commentary on the legal institutions of the time. In this way a body of rules was amassed by interpretative adaptation which the authors of the Twelve Tables would never have recognized.
3. Jus honorarium:
Jus honorarium derived its name from the circumstance that it rested upon the authority of magistrates (honor = magistracy). In this respect and because it was composed of orders issued for the purpose of affording relief in cases for which the existing law did not make adequate provision, this second agency for legal expansion may be compared with English equity. These orders issued by the praetors had legal force during the tenure of their office only; but those the expediency of which had been established by this period of trial were generally reissued by succeeding magistrates from year to year, so that in time a large, but uniform body of rules, subject to annual renewal, formed the greater part of the edict which was issued by the praetors before entering upon their term of office. By these means Roman law maintained a proper balance between elasticity and rigidity.
4. The praetor peregrinus:
After the institution of the praetor peregrinus (241 B.C.) who heard cases in which one or both of the parties were foreigners, a series of similar edicts proceeded from those who were chosen to this tribunal. The annual edicts of the praetor peregrinus became an important means for broadening Roman law, for the strangers who appeared in the court of this magistrate were mostly Greeks from Southern Italy, so that the principles of law which were gradually formulated as a basis for proceedings were largely an embodiment of the spirit of Greek law.
5. Imperial Ordinances:
Direct legislation superseded the other sources of law under the empire, taking the form, occasionally, of bills ratified by the people (leges), but usually of enactments of the senate (senatus consulta), or imperial ordinances. The latter, which eventually prevailed to the exclusion of all other types, may be classified as edicta, which were issued by the emperor on the analogy of the similar orders of the republican magistrates, decreta, or decisions of the imperial tribunal, which had force as precedents, and rescripta, which were replies by the emperor to requests for the interpretation of the law. All these acts of imperial legislation were known as constitutiones.
6. Golden Age of Juristic Literature:
In the 2nd century Salvius Julianus was commissioned to invest the praetorian edict with definite form. The Institutes of Gaius appearing about the same time became a model for subsequent textbooks on jurisprudence (Gaii institutionum commentarii quattuor, discovered by Niebuhr in 1816 at Verona in a palimpsest). This was the Golden Age of juristic literature. A succession of able thinkers, among whom Papinian, Paulus, Ulpian, Modestinus, and Gaius hold foremost rank (compare Codex Theodosianus 1, 4, 3), applied to the incoherent mass of legal material the methods of scientific investigation, developing a system of Roman law and establishing a science of jurisprudence.
7. Codification in the Later Empire:
The period of the later empire was characterized by various attempts at codification which culminated in the final treatment of the body of Roman law under Justinian. The work of the board of eminent jurists to whom this vast undertaking was entrusted was published in three parts: (1) the Code, which contains a selection of the imperial enactments since Hadrian in twelve books, (2) the Digest or Pandects, which is composed of extracts from the juristic literature in fifty books, and (3) the Institutes, which is a textbook in four books. In this form mainly Roman private law has come down to modern times, and has become, in the words of an eminent authority Bryce, Studies in History and Jurisprudence, Oxford, 1901), next to the Christian religion, the most plentiful source of the rules governing actual conduct throughout Western Europe.
II. Roman Criminal Law.
1. Jurisdiction in the Royal Period:
In the royal period criminal jurisdiction, in so far as it was a function of secular administration, belonged by right to the king. The titles quaestores parricidii and duumviri perduellionis, belonging to officials to whom the royal authority in these matters was occasionally delegated, indicate the nature of the earliest crimes brought under secular jurisdiction. The royal prerogative passed to the republican magistrates, and embraced, besides the right to punish crimes, the power to compel obedience to their own decrees (coercitio) by means of various penalties.
2. The Right of Appeal:
But the right of the people to final jurisdiction in cases involving the life or civil status of citizens was established by an enactment (lex Valeria) which is said to have been proposed by one of the first consuls (509 B.C.), and which granted the right of appeal to the assembly (provocatio) against the execution of a capital or other serious penalty pronounced by a magistrate (Cicero De Re Publica ii.31, 54; Livy ii.8, 2; Dionysius v.19). This right of appeal was reinforced or extended by subsequent enactments (leges Valeriae) in 449 and 299 B.C. It was valid against penalties imposed by virtue of the coercive power of the magistrates as well as those based upon a regular criminal charge. Generally the magistrates made no provisional sentence of their own, but brought their charges directly before the people.
The death penalty was practically abrogated in republican times by allowing the accused the alternative of voluntary exile. The Romans rarely employed imprisonment as a punishment. The imposition of fines above a certain amount was made subject to the right of appeal. At first the dictator possessed absolute power of life and death over the citizens, but this authority was limited, probably about 300 B.C. (Livy xxvii.6, 5), by being made subject to the right of appeal
(2) The Porcian Law.
The right of appeal to the people was valid within the city and as far as the first milestone; and although it was never extended beyond this limit, yet its protection was virtually secured for all Roman citizens, wherever they might be, by the provision of the Porcian law (of unknown date), which established their right to trial at Rome. In consequence of this a distinction of great importance was created in criminal procedure in the provinces, since Roman citizens were sent to Rome for trial in all serious cases, while other persons were subject to the criminal jurisdiction of the municipalities, except when the governor summoned them before his own tribunal.
3. Popular Jurisdiction Curtailed:
The exercise of popular jurisdiction in criminal matters was gradually curtailed by the establishment of permanent courts (quaestiones perpetuae) by virtue of laws by which the people delegated their authority to judge certain classes of cases. The first of these courts was authorized in 149 B.C. for the trial of charges of extortion brought against provincial governors. Compensation was the main purpose of accusers in bringing charges before this and later permanent courts, and for this reason, perhaps, the procedure was similar to that which was employed in civil cases. A praetor presided over the tribunal; a number of judices took the place of the single juror. The laws by which Sulla reorganized the systems of criminal jurisdiction provided for seven courts dealing individually with extortion, treason, peculation, corrupt electioneering practices, murder, fraud, and assault.
The judices, or jurors, were originally chosen from the senate. A law proposed by C. Gracchus transferred membership in all the juries to the equestrian class. Sulla replenished the senate by admitting about 300 members of the equestrian class, and then restored to it the exclusive control of the juries. But a judicial law of 70 B.C. provided for the equal representation of all three classes of the people in the courts. There were then about 1,080 names on the list of available jurors, of whom 75 seem to have been chosen for each trial (Cicero In Pisonem 40). Caesar abolished the plebeian jurors (Suetonius Caesar 41). Augustus restored the representatives of the third class (Suetonius Aug. 32), but confined their action to civil cases of minor importance. He likewise excused the members of the senate from service as jurors.
5. Disappearance of Criminal Courts:
The system of criminal courts (quaestiones perpetuae) diminished in importance under the empire and finally disappeared toward the close of the 2nd century. Their place was taken by the senate under the presidency of a consul, the emperor, and eventually by imperial officials by delegated authority from the emperor. In the first case the senate stood in somewhat the same relation to the presiding consul as the jurors in the permanent courts to the praetor. But the emperor and imperial officials decided without the help of a jury, so that after the 3rd century, when the judicial competence of the senate was gradually lost, trial by jury ceased to exist. An important innovation in the judicial system of the empire was the principle of appeal from the decision of lower courts to higher tribunals. For the emperors and eventually their delegates, chiefly the praefectus urbi and praefectus praetorio, heard appeals from Roman and Italian magistrates and provincial governors.
6. Right of Trial at Rome:
Under the early empire, provincial governors were generally under obligation to grant the demand of Roman citizens for the privilege of trial at Rome (Digest xlviii. 6, 7), although there appear to have been some exceptions to this rule (Pliny, Epist. ii.1l; Digest xlviii.8, 16). Lysias, tribune of the cohort at Jerusalem, sent Paul as prisoner to Caesarea, the capital of the province, so that Felix the procurator might determine what was to be done in his case, inasmuch as he was a Roman citizen (Acts 23:27), and two years later Paul asserted his privilege of being tried at Rome by the emperor for the same reason (Acts 25:11, 21).
Roman citizens who were sent to Rome might be brought either before the senate or emperor, but cognizance of these cases by the imperial tribunal was more usual, and finally supplanted entirely that of the senate, the formula of appeal becoming proverbial: cives Romanus sum, provoco ad Caesarem (Kaisara epikaloumai: Acts 25:11).
As Roman citizenship became more and more widely extended throughout the empire its relative value diminished, and it is obvious that many of the special privileges, such as the right of trial at Rome, which were attached to it in the earlier period must have been gradually lost. It became customary for the emperors to delegate their power of final jurisdiction over the lives of citizens (ius gladii) to the provincial governors, and finally, after Roman citizenship had been conferred upon the inhabitants of the empire generally by Caracalla, the right of appeal to Rome remained the privilege of certain classes only, such as senators, municipal decurions (Digest xlviii.19, 27), officers of equestrian rank in the army, and centurions (Dio Cassius lii.22, 33).
Greenidge, The Legal Procedure of Cicero's Time, Oxford, 1901; Kruger, Geschichte der Quellen u. Litteratur des romischen Rechts, Leipzig, 1888; Mommsen, Romisches Strafrecht, Leipzig, 1899; Roby, Roman Private Law in the Times of Cicero and of the Antonines, Cambridge, 1902; Sohm, The Institutes of Roman Law, translated by J.C. Ledlie, Oxford, 1892.
George H. Allen
See ROMAN LAW.