Exodus: Unity of Law and Grace

Laws of Liberty

Professor: Dr. R.J. Rushdoony

Subject: Pentateuch

Lesson: Laws of Liberty

Genre: Lessons with Q & A

Track: 074

Dictation Name: RR171AN74

Location/Venue:

Year: Early 70’s

Let us worship God. Our help is in the name of the Lord who made heaven and earth. Seeing that we have a great high priest that has passed into the heavens, Jesus the Son of God, let us therefore come boldly unto the throne of grace that we may obtain mercy and find grace to help in time of need. Let us pray.

We worship thee, O God the Father, God the Son, and God the Holy Ghost, and we praise thee for thy goodness and thy mercy unto us. O Lord, our God make us ever mindful how rich we are in Jesus Christ. Grant that we, day by day, may serve thee with all our heart, mind, and being, might know what our duty is and do it, and might ever be joyful in thy service. Bless us this morning by thy word and by thy spirit, and grant us thy strength, peace, and blessing. In Christ’s name, amen.

Our scripture is from Exodus 21:18-27. The Laws of Liability, the first of the section on this subject. Exodus 21:18-27. “And if men strive together, and one smite another with a stone, or with his fist, and he die not, but keepeth his bed: If he rise again, and walk abroad upon his staff, then shall he that smote him be quit: only he shall pay for the loss of his time, and shall cause him to be thoroughly healed. And if a man smite his servant, or his maid, with a rod, and he die under his hand; he shall be surely punished. Notwithstanding, if he continue a day or two, he shall not be punished: for he is his money. If men strive, and hurt a woman with child, so that her fruit depart from her, and yet no mischief follow: he shall be surely punished, according as the woman's husband will lay upon him; and he shall pay as the judges determine. And if any mischief follow, then thou shalt give life for life, eye for eye, tooth for tooth, hand for hand, foot for foot, burning for burning, wound for wound, stripe for stripe. And if a man smite the eye of his servant, or the eye of his maid, that it perish; he shall let him go free for his eye's sake. And if he smite out his manservant's tooth, or his maidservant's tooth; he shall let him go free for his tooth's sake.”

These are laws of liability. They are case laws. Case laws, in the biblical sense, give us an example which embodies a general premise. For example, the very often used one in the Bible, “Thou shalt not muzzle the ox which tredeth out the corn.” In other words, as both our Lord and St. Paul make clear, it means the laborer is worthy of his hire. So, if an ox who works to mill the corn is worthy of his feed, how much more a human being, and as Paul declares, “They that labor worthily in the ministry of the word are worthy of double honor,” and the word “honor,” in the Greek as I have pointed out before is a very interesting one. It means two things at one and the same time; honor and pay. So, you show your respect, your honor, of a person by the way you pay him, in every sphere of life, beginning with the ox.

In this passage, Exodus 21:18-27, these are mainly unintentional crimes, committed in anger or in a fight, and it establishes the liability with regard to such unintentional crimes. The fact of these penalties was, in itself, a restraint upon rage. It also penalized unfair fighting, and it said that even unintentional crimes had a penalty. We must remember that, until fairly recently, injuries done and even the killing of pedestrians by drunken drivers, was excused on the grounds of mental incapacity. Some versions render verse 18 as referring to striking another man with a stone or with his spade. So, we have a reference here to, in the heat of anger, the use of vicious means to defeat the other man. But, basic to all these laws of liability is the fact of restitution.

Now it is commonplace among scholars to refer to verses 23-25, life for life, eye for an eye, tooth for a tooth, and so on, as the lex taliones, the law of retaliation. But this is wrong. This warps the perspective radically. It falsifies the text. The concern of the law is not retaliation, but restitution, and the difference between them is a very, very serious one. Retaliation means getting even. It’s framework is personal, and it involves, as the original Webster’s dictionary said, “returning evil for evil.” Restitution is radically different. Its purpose is restorative. To further justice, not to inflict harm. In other words, if you have been robbed of $100, $100 plus $100 penalty; $200, must be restored. The word “retaliation” has taliones as its root, it does not belong in this context because we have here restitution, not retaliation or revenge. What restitution means is the punishment must fit the crime. Such as, the death penalty for murder. It means justice, not retaliation, and this is what our text is about when it says “an eye for an eye.” That is, there must be a proportion between the offense and the penalty, so that we cannot slap a criminal on the wrist, or any man who, in a fight, injures another as though it were nothing.

Now the first case deals with two men fighting. Whatever may have been the cause of their fight is not in question here. Neither is there freedom to fight it out. What is forbidden is the use of unfair means to defeat the other person or to mutilate him. The implication is that in such an instance if the man dies, the offender must also die. By resorting to lawless and unfair tactics, the man has forfeited his status as an innocent party. If the victim does not die but is bedridden for a time, the offender must pay for the loss of his time and for his medical expenses.

The second case involves the corporal punishment of servants or hirelings, bond servants, or for slaves. The Bible is here being realistic. First, it knew these things existed. Second it set restraints upon man’s sin. If the angry master or mistress beat such a person to death, then they had to die. If, however, the servant is simply bedridden for a day or two, then no penalty follows. The loss of work to the master is sufficient penalty, for the man has hurt his own interest by his evil anger. The servant’s enforced idleness cost the man a man’s labor. In verse 21, the reference is to a foreign slave, and the implication is if this is true of a foreign slave, how much more so is it true of a fellow covenant member. The expression “for he is his money” has in mind a foreigner.

The third case is involved with involuntary abortion. Now, this is a text that the pro-choice people, as they call themselves, have done a great deal to try to undermine and argue against and they say that no where does it refer to the fetus as a person, but elsewhere in scripture, the unborn child is referred emphatically as a person. This is accidental abortion. Men fighting and in the process of the battle, a bystander, a pregnant woman, is injured. If the child is aborted but lives, and the money is unharmed, the guilty man is still punished. He is fined by the judges who also consult the husband concerning the extent of his claims. If harm follows, either the death of the baby, or of the mother, or both, the death penalty is required. Well, the point, of course, is that if this is true in accidental abortion, how much more true in an intentional one? What is very clear from this and other texts is that a pregnant woman must be treated with great care when even an accidental abortion is punished so severely.

The fourth case gives us two similar instances of injuries. One is the loss of an eye and the other the loss of a tooth by either a manservant or a maidservant. In both cases, the reference is to an angry master’s action in lashing out or punishing a servant, whether the servant deserves it or not. The eye and the tooth are cited to illustrate the consequences of such injuries and any injuries of a permanent sort. The injured party must go free, whether a foreign slave or a Hebrew bond servant, their freedom was mandatory.

The primary reference, of course, in these verses, which does not appear in the English is to foreigners. The law’s protection extends to aliens as well as Hebrews, meaning that no man could treat another how much an enemy alien or a despised foreigner as other than a creature made in God’s image. Now, this kind of law is very relevant to our time. It’s swept under the carpet now but very few people appreciate the fact that, after World War 2, millions, millions of captured soldiers were kept as slave labor by the Soviet Union and worked to death, and we that we assented to this by turning over one to two million Russians to Stalin, even though some of them had been born in western Europe. They were rounded up, shoved into boxcars, and shipped to be worked to death. We assented to it legally which is why, since then, we have had our own prisoners of war kept in South Vietnam, as slave workers. This principle has been reestablished, but it’s swept under the carpet, and there is no biblical, humane principle to restrain this on the part of anyone.

Well, the primary reference as I said in these verses is to foreigners. In most cultures, a man has had full freedom over his servants, and sometimes over his family. This was true is Antiquity and it is still true in much of the world. These laws are a clear divergence from such a perspective. The idea that in verses 23-25, we have a reference to lex taliones, or retaliation, although common to many biblical commentators and others, is ridiculous. In fact, some scholars in various areas of study, whether law, or sociology, or anthropology, have seen retaliation as basic to our justice system, and so they oppose the death penalty. This is the ground of all opposition now, to doing anything to a criminal. There are many who oppose it and, of course, we are seeing a massive release of prisoners who are not even paroled, they’re just turned free, the excuse being, the prisons are too full, which is sometimes true but not always. Behind it is the idea that any kind of punishment is retaliation. It is the lex taliones and therefore, evil.

For example, one British scholar, a very notable one early in this century, G. Armitage Smith, even saw protective tariffs as a form of retaliation, so that if you put up a tariff to bar the influx of any foreign product, you were guilty of retaliation, the lex taliones. It is interesting that although G. Armitage Smith was an anthropologist, the Dictionary of Anthropology in the 1956 edition is almost alone among scholars in distinguishing between retaliation and restitution, although it does wrongly refer to Exodus 21:24 as an example of retaliation. The Dictionary defines and I quote, retaliation as “a type of private vengeance in which the punishment of the offender is like the injury he inflicted, it is the lex taliones, expressed in the typical formulation an ‘eye for an eye, a tooth for a tooth.’” Retribution, not restitution. They don’t have any entry for that. A punishment like the injury the offender inflicted based on what Aristotle called “corrective justice.” It is designed to restore the balance of the social universe which was upset by the crime.

Well, these definitions are wrong on two counts. First, as I said, by citing Exodus as an example of retaliation, and second, by citing Aristotle as the source for restitution. All the same, these definitions are better by far than most. The prison system came in as an opposition to restitution. It was supposed to be a reformatory, as I pointed out, and the places where the inmates were kept were cells, like a monastic cell, that’s where the word comes from, to make them a new creature. We have had the whole of this anti-Christian system a long, long time. The sad fact is this confusion over retaliation and restitution is not a trifling matter. At stake is the matter of justice. Without restitution there can be no justice in a society. If someone steals $10,000 from you and is not required to restore it, where is the justice if they are locked away or put into psychiatric rehabilitation? You pay for it then, so you’re fined further. This is why bond service of criminals was required. They had to work it out. Because western civilization has abandoned restitution, we have seen ineffectual replacements work to destroy society. As I pointed out, the early alternative was the prison system, intended to reform guilty men, and the names reformatory and reform school still survive to witness to the incompetence of these institutions, and the more recent solution has been psychiatric therapy, and of course, releases to their homes from time to time, furloughs. Ostensibly, by going back to their family, they’re going to be a changed person.

Well, in contrast to that, let’s see how people thought some time ago. In 1831, Richard Watson, who was not a great thinker but simply knew what was the accepted thought by Christians in particular in his day. And he wrote this about the subject of restitution, and I quote, “Restitution is that act of justice by which we restore to our neighbor whatever we have unjustly deprived him of. More or less, respecting restitution, first that where it can be made in kind, or the injury can be certainly valued, we are to restore the thing or value. Two, we are bond to restore the thing with a natural increase of it. That is, to satisfy for the loss sustained in the meantime and the gain hindered. Parenthetically, if someone steals $10,000 and he isn’t caught until three years later, he not only makes double restitution on it but he pays interest on it. When the thing cannot be restored and the value is not certain, we are to give reasonable satisfaction according to a liberal estimation. Fourth, we are at least to give, by way of restitution, what the law would give, for that is generally equal, and in most cases, rather favorable than rigorous. Fifth, a man is not only bound to make restitution for the injury that he did, but for all that directly follows upon the injurious act, for the first injury being willful, we are supposed to will all that which follows upon it.”

Now, it is interesting that Watson quoted Exodus and also the gospel of Luke 19:8. Because justice is no longer the restitution, because restitution is no longer the essential part of justice, we see increasingly the decline of justice in society. One very prominent religious figure, who claims to believe the Bible from cover to cover, has expressed recently, in print, his disinterest in justice. His concerns are prophesies about Israel, and secondarily salvation. Basic, however, to the fact of salvation is our Lord’s atonement, an act of restitution for us. Restitution is fundamental to Christianity, and it is the essence to God’s justice. To deny restitution in human affairs is to deny justice and implicitly, finally, our faith. Let us pray.

Our Father, we thank thee for the plain speaking of thy word. O Lord, our God, we beseech thee, recall thy church to thy word, to the wholeness of thy word, and grant that by thy spirit they may believe and obey. Make us again a righteous people. Our Father, we thank thee for thy grace and mercy unto us. Give us a spirit of joy and thanksgiving and of faithfulness. In Christ’s name. Amen.

Are there any questions now about our lesson? Yes?

[Audience] When these laws were implemented, how were they enforced? When these laws were implemented, how they enforced and today, if we used these kind of laws, how would we implement them today, how would we enforce them?

[Rushdoony] These laws were enforced by the civil courts, and at the court, there were two kinds of judges always. One was a civil judge, which is what we would call them, and the other was a lawyer in God’s law. Someone trained with respect to the law of God and how to apply it. Therefore, the first question in the court would be, “What in scripture applies to this particular case?” So that the lawyer in God’s law would not pass on the verdict, guilty or innocent. He would pass on “What in God’s law applied to the particular case?” Then the civil judge would rule on the evidence and on the guilt or innocence. Yes?

[Audience] Did they put people who were mentally ill to death?

[Rushdoony] Yes. There was only one criterion. The act. The act. Now, the interesting thing is that since we have ruled goes back to the McNaughton Rule in the first half of the last century in Britain, that people of an ostensibly impaired mental capacity cannot be convicted in the same way as others, we have had a proliferation of crimes by people of ostensibly diminished capacity. Before that, it was rare, and we have opened the doors to that. In a sense, as some have since argued, anyone who commits a crime has an impaired mental capacity, therefore, who can be held guilty? So, that offense has placed all of us who are not of an impaired capacity in jeopardy. We are helpless against these people. Yes?

[Audience] In returning then to a system of justice where we come back to really following these laws, it would take quite a bit of time and I would assume, to get the machine to really operate, how do we treat those that have already been through the system and there was no justice?

[Rushdoony] Well, there’s not much we can do to undo what is being done. It’s just that here, there, and everywhere we make a new start, and I’m glad to say, under the influence of Chalcedon’s work, in some parts of the country now, restitution is an option for a judge. He can require restitution, in which case the condemned man, or the sentenced man is put into a halfway house. He goes to work but he has to return there at night, and he has to pay off, when he gets his check, he turns it over to make restitution, and this system is effective because it brings home the cost of crime to the criminal. Just think he they feel when they have to work off a few thousand dollars. Then they know that crime does not pay. Yes?

[Audience] I’m puzzled that more Jews in Israel don’t protest because of the treatment of the Palestinians. Palestinians throw rocks and get their houses blown up.

[Rushdoony] Yes. There is not attempt to do anything from a biblical perspective because, first of all, in terms of Israel’s own law, that is not their territory. Many Israelis have moved into that area and seized the land illegally, and now they are the mainstay of those who are demanding an increasing attack on the Palestinians who are resisting the steady takeover. So, every aspect of that situation is wrong. Yes?

[Audience] In verse 22, is there any significance to the fact that it starts in the plural, “men strive,” and then it refers to “he shall pay.” It goes to the singular. Were both men guilty or with, guilt determined….

[Rushdoony] No. Yes, if both were guilty, yes. But it is assuming that, let us say, one of the men in the process injures the pregnant woman. If both do, they are both guilty. Yes. We had a case in Boston a few years ago when a man who had precipitated an abortion by his reckless driving was guilty, and it is interesting that that decision came after abortion had been legalized. It was in terms of older American law and in terms of biblical law. So we did have this premise in our law for a long time. Yes?

[Audience] In the situation where someone is killed by a drunk driver, {?} looked at because the individual who was driving the car consumed alcohol to the point where he was not {?} negligence, it seems to me that that’s negligence, and then he goes out and kills somebody, as far as I’m concerned they’re just as culpable as if they shot him with a gun.

[Rushdoony] Then what, what’s your question?

[Audience] The point is, biblically how is that looked upon? The decision by the individual who drinks and then goes out and drives, is it an accident, or is it an intentional crime?

[Rushdoony] It is regarded as murder, yes. It’s like pointing a gun at someone and saying, “I didn’t know it was loaded,” when you didn’t know whether it was or not. The idea of pointing it at someone when you didn’t know is morally indefensible. So, that to get into a car when you have had too much to drink is, in itself morally wrong, and anything that follows is a result of that moral decision. You have to bear the responsibility, not the victim. In other words, biblical law does not penalize the victim. It penalizes the offending party. Yes?

[Audience] What should we, for advice, give to someone say that’s had an abortion and, yet there’s really no penalty other than what God is dealing with them? How do they go about with restitution?

[Rushdoony] Very good question. There are some things for which no restitution can be made. The early church faced that problem because the two ages in the history of the world when abortion has been most commonplace, has been in New Testament times on to the Fall of Rome, and our era, and the way that was resolved was this. When such a person became a Christian and they were taken into the church, they were told, “You are guilty of murder, and since abortion is legal there is nothing that can be done about it, but in the sight of God it is still murder, and so while we take you in as a fellow believer, and as a sister, we will bar you from the Lord’s table as one who is the living dead.” In some instances, in some parts of the early church for seven years, other areas for ten years, and in some areas they were barred for life. Apart from that, they were fully a member of the church and loved, and treated like anyone else. Now, there was a value in that. It did mean that the person had an absolution. They accepted a death penalty and, in this form of being barred from the Lord’s table because they were not among the living legally, they recognized the ongoing punishment and no one held anything against them. So, they faced it openly, they resolved the matter and it ended there. Well, our time is about up. Let us conclude with prayer.

Our Father, we thank thee for thy word and the sufficiency of thy word. Make us zealous in the knowledge thereof and the application. Use us to recall this land to thy kingdom and to thy word and spirit. And now go in peace. God the Father, God the Son, and God the Holy Ghost bless you and keep you, guide and protect you this day and always. Amen.

End of tape.