Exodus: Unity of Law and Grace

Laws of Liability and Restitution

Professor: Dr. R.J. Rushdoony

Subject: Pentateuch

Lesson: Laws of Liability and Restitution

Genre: Lessons with Q & A

Track: 76

Dictation Name: RR171AP76

Location/Venue:

Year: Early 70’s

Let us worship God. Our help is in the name of the Lord who made heaven and earth. O come let us worship and bow down, let us kneel before the Lord our maker. Let the words of our mouth and the meditation of our heart be acceptable in thy sight, O Lord, our strength and our redeemer. Let us pray.

Holy, holy, holy art thou, O Lord, and we worship thee. We gather together to rejoice in all the multitude of thy blessings and thy providential care. Open our eyes, O Lord, that we may see how great thou art and how good thou art to us, who so often cannot be good to ourselves. Give us gladness of heart and humility of spirit. Teach us day by day to commit all our ways unto thee, and prayerfully to serve thee and to glorify thee. Bless us now by thy word and by thy spirit, and grant that we may behold wondrous things out of thy law. In Christ’s name, amen.

Our scripture this morning is from the book of Exodus 22:1-6. Our subject, the first of several on this subject: Laws of Liability and Restitution. Laws of Liability and Restitution. Exodus 22:1-6. “If a man shall steal an ox, or a sheep, and kill it, or sell it; he shall restore five oxen for an ox, and four sheep for a sheep. If a thief be found breaking up, and be smitten that he die, there shall no blood be shed for him. If the sun be risen upon him, there shall be blood shed for him; for he should make full restitution; if he have nothing, then he shall be sold for his theft. If the theft be certainly found in his hand alive, whether it be ox, or ass, or sheep; he shall restore double. If a man shall cause a field or vineyard to be eaten, and shall put in his beast, and shall feed in another man's field; of the best of his own field, and of the best of his own vineyard, shall he make restitution. If fire break out, and catch in thorns, so that the stacks of corn, or the standing corn, or the field, be consumed therewith; he that kindled the fire shall surely make restitution.

The word restitution is the key to these verses and, of course, to this whole chapter. These verses continue the laws of liability with a more specific emphasis on restitution, and we are told of the character of restitution.

In the past two centuries, restitution has steadily receded from the laws of Christendom and in fact, there has been hostility to it. The last area in which restitution remained in the United States was where theft was involved with a federal employee. Anything taken from the federal government had to be restored. I recall some years ago on the Indian reservation, one Indian service official did gamble away some federal funds, I believe $10,000, and he was not put in prison. In fact, he was given every incentive to work for promotions because he had to make full restitution plus interest. As a result, the man, before long, did get a promotion. He was transferred to another reservation and a sum was deducted from every check. Well, restitution is important to God’s law and here we have six cases involving restitution.

In the first case, verse 1, “If a man shall steal an ox, or a sheep, and kill it, or sell it; he shall restore five oxen for an ox, and four sheep for a sheep.” Here we have the theft of farm animals cited to illustrate the premise of the law. Restitution is to be governed by the value of the thing stolen. An ox had particularly great value in Antiquity and in our country, up to a century ago because of several factors. Much training went into making him a beast of burden, that is, an animal pulling a plough or handling freight. Oxen were exceptionally good at pulling freight, they had a capacity for carrying enormous weight. As a matter of fact, for freight hauling, oxen were preferred, especially if it were short distances. The ability of oxen to pull heavy loads far, far surpassed that of horses. It is interesting that of late, there have been efforts in New England to revive the breeding and training of oxen, and there are various shows and contests to test the pulling ability of oxen. The oxen were used by some who came west on the wagon trains, but it took a separate wagon train if it were oxen because they ere capable of twelve miles a day. However, if you were coming west with a great deal in the way of seeds, provisions, furniture, you used a team of oxen. They could haul great weight. Oxen were also valuable for their hide and for their meat. It was a very obvious fact that in Antiquity and well over the centuries, oxen were very commonly the most important single farm animal. Restitution for the theft of an ox therefore, was five-fold.

For sheep it was four-fold. Sheep provided wool and meat, and were next in importance to oxen. They also reproduced. There is a reference to such restitution in 2 Samuel 12:6. The premise in such restitution is the present and future value of the thing stolen. So, the reproductive capacity of the animal is taken into consideration in such cases.

Now, the second case is verse 2. “If a thief be found breaking up, and be smitten that he die, there shall no blood be shed for him. If the sun be risen upon him, there shall be blood shed for him.” This refers to a thief breaking in during the night, whether into the house, into the barn, or into the sheep pen. In the dark, it is not possible to see if a thief is armed or unarmed. If he be killed, therefore, no guilt is incurred by the property owner or any member of his household. You were simply defending your home and property against a night robber. In this verse, “if a thief be found breaking up,” the words by breaking in or by breaking up are literally “by digging through,” digging through a wall. Since in Antiquity and well into modern times, many houses, sheds, and barns were made of adobe. It was possible to break through the walls of a simple adobe. This fact in itself indicated evil intent, and the householder was not held liable for killing the thief. Now, notice I said that this involved any kind of breaking and entering. It could be that it was no more than a pan. What we do not realize is that very, very many walls outside walls, around a yard, around a sheep-fold, were made of adobe. Then, the top structure at the very top of the wall, there was a peak, an adobe peak, so the rain would fall off. Now, in time, after a few years, there would be erosion, but it was a simple matter to go by and repair that, once every few years, and this was very commonly done.

In the third case, verse 3, “If the sun be risen upon him, there shall be blood shed for him; for he should make full restitution; if he have nothing, then he shall be sold for his theft.” This case concerns a daylight theft. In such a case, the man breaking in might have assumed that no one was at home, and no man was around to see him. To kill such a thief, except in self-defense, was not permitted, and it would result in a murder charge if the thief were killed, unless the thief resisted. Such stealing, of course, was common in Antiquity, as it is now. Cattle rustlers today often kill the cow or steer in the field and then load the carcass into their truck. This makes the meat anonymous. The hide is left behind. In verse 3, in this case, full restitution is required of all such thieves, even when caught in the act. No restitution meant, that is, if the man could not make restitution, he was sold as a slave. It had to be worked off.

It is interesting that, today, rustling is at an all-time high. In California there is more rustling than has ever been reported in California history, and laws today are less capable of coping with it, plus the fact that trucks enable people to kill a cow and get onto a highway and off on a freeway and disappear very often before they are found out.

In the fourth case, in verse 4, we read “If the theft be certainly found in his hand alive, whether it be ox, or ass, or sheep; he shall restore double.” This refers to a thief caught with a stolen animal still alive. In such an instance, restitution was double, not four-fold or five-fold. This was true whether the thief was caught in the day or surrendered in the night before being killed.

Now, by this time, it should be apparent what the meaning of these laws is. Crime was not to be profitable. The old proverb, “Crime does not pay,” had reference to biblical law. Under modern, statist, laws, humanistic laws, it definitely pays. God’s law intends to penalize the sinner and protect the just by the law of restitution. Today if a man steals something from you, there is no restitution. If he goes to jail, you pay for his keep in jail, which can be up to $45,000 a year, more than you make probably. Well, this is the modern system, which is unjust. The taxpayer is penalized. Now, God’s law wants always to penalize the sinner, and the purpose of restitution is the protection of the just.

Now, the fifth case, in verse 5, reads, “If a man shall cause a field or vineyard to be eaten, and shall put in his beast, and shall feed in another man's field; of the best of his own field, and of the best of his own vineyard, shall he make restitution.” In this instance, nothing is said as to whether the offense is intentional or not. It carries the same penalty. A man’s animal might break loose and enter another man’s field or a vineyard, and do considerable damage in the course of one night. It’s still his fault. It is his duty to keep his fences in such repair that the animals will not escape. On the other hand, the owner might put his animal in another’s field, in the neighbor’s field. Then and now, more than a few lawless men have placed an animal in a neighbor’s field and then removed it before dawn so that there would be no way of knowing how so much of the field, the grain, or the vines, their leaves, the crop disappeared.

In Ecclesiastes 10:8, we have a very telling reference to such acts. “Whoso breaketh an hedge, a serpent shall bite him.” The hedge in this sentence means a hedge fence. Hedge fences were common in Antiquity, they were common in Europe and in England until very recently. They are now gone in most places. There was a reason for hedge fences. A hedge fences was made up of hedges, usually thorny shrubs, of trees and various other such bushes. A hedge fence would be two or three feet thick, at least, sometimes more. It would therefore be a natural habitat for birds and small animals. Because of that fact, it would also attract snakes. Therefore, to break through a hedge fence was to risk a snake bite. Solomon’s point therefore, in saying “whoso breaketh an hedge, a serpent shall bite him,” is this: It’s a natural fact that he calls attention to. If you try to go through a hedge fence, you’re not going to see too well and especially if you’re trying to break it at night to let your animals through. It is dangerous, and Solomon’s point is even as breaking through an hedge fence is to invite a snake bite, so to break God’s law is to invite and ensure judgment. Whoso breaketh an hedge, God’s law, a serpent shall bite him. Judgment will come out of that very act.

In this instance, restitution is very specific. The guilty man, whether the offense were intentional or not, had to make restitution in kind from his own farm. If he had the equivalent grain, vines, or whatever else were destroyed. If not, restitution was to be made in other ways, through gold or silver. This law made necessary the maintenance of good fences and gates to prevent one’s animals from breaking out. Today, when there is no penalty in most cases and the courts are not interested in little cases like this, there is no incentive to have good fences. A man was responsible in terms of God’s law, for what his animals did and hence, the necessity of careful fencing. A book could be written about the history of fencing and of what people have done, both to destroy fences and to establish fences. Perhaps someone has written such a book, I’ve never heard of it, but it would be an exceptionally good study. It would mean, of course, a lot of research on a great many miscellaneous documents because these sources here would be very, very difficult to locate.

Now the sixth case, verse 6, reads, “If fire break out, and catch in thorns, so that the stacks of corn, or the standing corn, or the field, be consumed therewith; he that kindled the fire shall surely make restitution.” In this case we are told a man is responsible for the consequences of his actions, whether or not they are intentional. If a fire gets out of control that a man has lighted to burn up weeds, or trash, or anything else, that man is responsible for the consequences of the fire. Arson may not have been intended but destruction resulted as a result of something he did. As a result, his neighbor’s standing grain, whether in shocks or in the field, is destroyed, and possibly his home. Restitution must, thus, be made.

Now this type of incident occurs very often in our time and nothing happens. I was told, recently, that in the north end of the county one man poured kerosene into a gopher hole intending to kill the gopher who was doing a great deal of damage in his yard. Well, it flared up, caught fire in some dry grass nearby, and got out of hand. Now, according to God’s law, we are responsible whether or not we intended the damage that ensues. This case cites, in particular, destroyed grain. It cites it because grain, in particular in Antiquity, was especially important. It’s still very important but more so then. Grain provided the mainstay of life. The expression the “bread of life,” is a very good one, because bread, as man had it over the centuries and still has it in some places where bread is solid and nutritious, and not the flyweight and tawdry stuff we have. Bread provided life, it was the mainstay of one’s diet. As Joseph Parker wrote over a century ago, and I quote, “Destroyed bread is destroyed life.” In this case, we are told, “He that kindled the fire shall surely make restitution.” We are not given a specific number for the restitution, whether double, or three-fold, four-fold, or five-fold. There is a very good reason for this. The value of the grain varied from year to year, and in a year of food shortages, a field of grain would have far more value than in times of plenty, and the damages were assessed in terms of the current value of the grain.

Now the subject of restitution has been largely ignored in our century and of course, even earlier. Biblical scholars ignore the subject, and you rarely, if ever, hear any preaching about it. Or, if biblical scholars comment on it, their statements sometimes make no sense. Let me quote you one, one that came from the early years of this century from a distinguished scholar. I quote, “In New Testament laws, it was taught that the guilt of theft could not be compounded by restitution.” That does not make sense. Well, in restitution as in all offenses, and punishments, innocent family members could not be penalized for a father’s sins, according to Deuteronomy 24:16. One form of restitution that the Bible gives us applies to false witness. In such cases, the penalty which would have fallen on the innocent person is applied to the false witness. This can mean restitution in kind or sometimes the death penalty, as in Deuteronomy 19:15-21. We are also told in that particular passage in verse 21 of Deuteronomy 19, that in cases of false witness there was to be no pity for the guilty witness.

Now God’s law differs from statist law in its objective. Man’s law often seeks the reformation of the criminal, whereas God’s law has justice in mind. It has, as its goal, the restoration of God’s order. Where the focus becomes reformation, then justice is replaced by a concern of the potential welfare of the criminal. The result is a serious warping of society and of justice. This is why Deuteronomy 19:21 is so emphatic, “And thine eye shall not pity; but life shall go for life, eye for eye, tooth for tooth, hand for hand, foot for foot.” The important thing is God’s justice, not man, so that God says, “You’re not to pity the criminal, nor are you as the person who has been robbed, are you to have the option of saying ‘let’s forget about it,’ because it’s God’s justice that must be enforced. Just as it is in other cases, God’s mercy and God’s pity, and not your anger.” The criterion is never how we feel in a situation, but what God requires. So, it cannot be our pity, nor our mercy, nor our anger, nor our desire for vengeance, but God’s law which must prevail. The focus of the law must be God’s order, God’s justice. It cannot be even the welfare of the godly.

What we are seeing in modern society is an undue concern for the rights of criminals, of animals, and of much else, resulting in what Cornelius Van Til has so tellingly described as integration downward into the void. We are told to bleed for the criminal, and now of course, pity for animals, laws against killing a rattlesnake, laws to protect all kinds of animals. We are not told, for example, that bears are vicious and that they kill people wantonly. No, what we get is something about how the victim who is killed must have enraged the bear somehow. It’s the victim’s fault, a man’s fault, and we’re getting more and more strange causes. Just today, Dorothy told me of the fact that there is a demand now for the protection of bats, of bats are not in short supply. In our own vicinity, they are emphatically very, very numerous. But everything is going to be protected except the innocent man. When man’s order prevails, we do indeed have an integration downward into the void. Let us pray.

Our Lord and our God, all around us men are busily committing suicide as individuals and as cultures. They are establishing their own evil as social justice. They are glorifying things that are absurd, and establishing causes that are ungodly, and they are busily tearing down our civilization. We thank thee, our Father, that it is not their folly that should prevail, but thy justice, for though hast said that if the wicked prosper it is that they be destroyed. Teach us, our Father, to wait on thee, to serve thee, to obey thee, and to know that thy will shall be done on earth as it is in heaven, that the kingdoms of this world shall become the kingdoms of our Lord, and of His Christ, that thy purposes, O Lord, are altogether righteous and holy and they shall prevail. Teach us to work in the confidence of thy victory. Give us a holy boldness and confidence in thy service. Make us ever mindful that it is the blessed meek, those whom thou hast tamed by thy spirit and by thy word through Jesus Christ our Lord, who alone shall inherit the earth. How great and marvelous thou art, O Lord, and we praise thee. 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