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: 77

Dictation Name: RR171AQ77

Location/Venue:

Year: Early 70’s

Wherewithal shall I come before the Lord and bow myself before the high God. He hath shown thee, O man what is good, and what doth the Lord require of thee but to do justly, and to love mercy, and to walk humbly with thy God. The sacrifices of God are a broken spirit, a broken and a contrite heart, O God, thou wilt not despise. Let us pray.

Almighty God, our heavenly Father, we thank thee that thou art he who dost love justice. That all thy ways are righteous and true altogether. It is thy will that shall be done, and not the will of men. Give us grace therefore, to come always into thy presence, casting all our cares upon thee knowing thou carest for us. Rejoicing in thy ways and in thy justice, and knowing that it exceeds ours and is more thorough. Bless us in our service. Enlighten us by thy word and by thy spirit, and make us ever faithful in Christ. In His name, amen.

Our scripture is from Exodus 22:7-13. Our subject again, for the second time: Laws of Liability and Restitution. Exodus 22:7-13. “If a man shall deliver unto his neighbour money or stuff to keep, and it be stolen out of the man's house; if the thief be found, let him pay double. If the thief be not found, then the master of the house shall be brought unto the judges, to see whether he have put his hand unto his neighbour's goods. For all manner of trespass, whether it be for ox, for ass, for sheep, for raiment, or for any manner of lost thing which another challengeth to be his, the cause of both parties shall come before the judges; and whom the judges shall condemn, he shall pay double unto his neighbour. If a man deliver unto his neighbour an ass, or an ox, or a sheep, or any beast, to keep; and it die, or be hurt, or driven away, no man seeing it: Then shall an oath of the LORD be between them both, that he hath not put his hand unto his neighbour's goods; and the owner of it shall accept thereof, and he shall not make it good. And if it be stolen from him, he shall make restitution unto the owner thereof. If it be torn in pieces, then let him bring it for witness, and he shall not make good that which was torn.”

We continue with the laws of liability and restitution with some very interesting cases, but before we go to these cases, in verses 8- 9, we have reference to the judges. The word in the Hebrew is “elohim,” a word which is used both to refer usually, in most instances, to God, and at times to judges, who are God’s agents in the administration of justice. In ancient Israel, according to Umberto Kasuto, the expression remained a stereotyped term signifying the place of the court. Various commentators have disagreed as to whether of not to render the text here as “God,” or “judges.” Thus, the important point is this: So thoroughly is the province of God and the court as no less a meeting place with God than the temple. From the biblical perspective, the idea of a non-theistic law is no law at all, or anti-law, because God alone is the valid source of law.

In terms of this, the secularization of law and the courts is injustice. Thus, the text however it is read, means that when cases are brought before the judges in a godly society, they are brought before God. The implication is that when temple and court, or churches and the courts of law go astray, then society is robbed of the presence of God. It is denied His administration.

In the first case, in verse 7, a man who is perhaps traveling gives his valuable, money and various items, to a neighbor for safekeeping. A theft takes place and the thief is caught. Double restitution is required of the thief. This is a simple, straight-forward case of obvious theft, and a thief caught and convicted.

The second case is a bit more complex, verse 7, “If the thief be not found, then the master of the house shall be brought unto the judges, to see whether he have put his hand unto his neighbour's goods.” In this instance, there is no sure evidence of a theft, a thief has not been caught. Theft is a possibility, but so too is embezzlement, or theft. A court hearing is therefore required to investigate the evidence, to see whether or not the trustee is to be charged and whether a trial is required.

The third case, verse 9, “For all manner of trespass, whether it be for ox, for ass, for sheep, for raiment, or for any manner of lost thing which another challengeth to be his, the cause of both parties shall come before the judges; and whom the judges shall condemn, he shall pay double unto his neighbour.” In this instance, a man suspects that another man, whether an actual thief or a receiver of stolen goods, has something which rightfully belongs to him. In the court case which follows, the man who is condemned by the judges must make double restitution. The penalty falls on the complainant if his charges are shown to be false. Because of such laws, false charges and nuisance suits could not be filed lightly. This penalty applies for every manner or matter of trespass.

The fourth case takes up the remainder of this passage, verses 10-13. These are laws of custodial care. If a man place any animal in the care of another man, certain rules governed that relationship. The normal examples of such caretaking would be shepherds and herdsmen, but it could be a neighbor providing pasture for an animal. Several possible problems are cited. Animals could be unintentionally maimed, driven away, frightened by lightening and thunder, hurting themselves, or becoming lost, or killed through no fault of their keeper. If the caretaker took an oath to his innocence, then he went free. The oath then and until fairly recently has been an important aspect of trials. Where the fear of God has prevailed, oath-taking has been a reliable recourse. Cases were routinely settled by an oath, however, if an animal were stolen, the keeper was liable because an important part of his keep and work is to prevent theft. As a result, the man who had custodial care incurs always a liability if he fails to prevent theft.

Then there’s another kind of case. If a wild animal killed the sheep, cow, or whatever other animal was in the keeper’s charge, evidence was required in the form of the remains of the dead animal which would clearly manifest that it was a wild animal. No restitution was required in all such cases, because this was an unforeseen hazard. It was assumed that no negligence was involved. Now, this is a very important point in law and it prevailed in American courts until fairly recently as a result of the fact that biblical law was once the law of our courts. An unforeseen, uncontrollable hazard did not make a man liable for what happened. At present, all such things are now seen as grounds for suits.

How these laws were applied is important for us to understand, because they’ve had a long history in western law. Thomas Scott, about 170 years ago, referred to these laws as laws concerning breaches of trust. A few years later after Thomas Scott, an American, George Bush, titled them Laws Respecting Deposits, both men got the point. Both terms are important in describing the scope of these laws. Historically, they have been used to judge cases of borrowing as well as deposits.

While it was possible that at times a friend took care of one’s property, normally someone was paid to do so. In any case, a liability was potentially incurred and hence, payment was common for this reason. In other words, to assume a responsibility meant to incur a possible liability, but it did not mean total liability.

There is a troublesome area of interpretation with respect to these laws, one which we have very much with us, and one with deep roots in Medieval, Rabbinic, as well as church decisions. It has reference to an area very much with us today, gambling debts. Unhappily, both the Medieval, Rabbis, many churchmen then and later, said that gambling debts are like theft, and cannot be collected. This is an radical departure from the whole spirit of biblical law. The reasoning for this kind of attitude has varied. Sometimes gambling debts are declared to be non-collectable by courts, because gambling is illegal in that jurisdiction. At other times, as with the rabbis and some churchmen, gambling was and is regarded as a form of robbery and therefore, outside the jurisdiction of the court. In other instances, money lost gambling has been held recoverable by legal action. There is a case in the East now along these lines. The fallacy in such thinking is that the man who gambles does so voluntarily. No one twisted his arm, no one compelled him. He did it voluntarily. If we agree that gambling is robbery, and illegal, then we must say that the man who gambles loses and refuses to pay his theft is simply a failed thief. He, too, has been involved in the offense. Short of demonstrable fraud in the gambling, all parties involved must be held to be on a common level, good or bad. To penalize only the winner is hardly sound morality. Restitution in such cases is the real act of theft, and it has been a kind of theft practiced all too often. To use courts of law to avoid gambling debts is to trivialize both the courts and the law.

However, in the courts of our time, every absurd case has been and is being heard. We have cases as to whether or not schools can govern the dress or hairstyles of children, and other such notions. Just recently when the fall term for public school started, one county in Georgia passed a dress code for school children, and the ACLU up north began to cry out against this tyranny. When the courts depart from God’s law, they begin to play God to govern all things, including every triviality. They seek a total government which, unlike God’s, cannot be providential, but is rather total prescriptive and regulative. But today, people reject anything that infringes on their freedom to be irresponsible. But in the past ten years, some of the angry complaints I have heard as I have traveled, from parents who claim to be Christian, as to why they could not put their child in a Christian school, have been amazing. They have a dress code. “Why that’s training my child for totalitarianism.” They discipline children. “Why, that’s brutalizing my child,” and on and on. Absurdities that they have picked up from the community. It is a good thing that they do not have their children in the Christian schools.

Where God’s law prevails, restitution is to the person offended. In statist law, it is the state which is offended and exacts a penalty in the form of fines and imprisonment. The result is not a restoration of order but an increase of statist power and control over all. Biblical restitution restores the balance by penalizing the offender to effect restoration to the offended. This is justice.

But justice is gone out of our world today. A very prominent churchman has written that he is not interested in justice, only in the rapture, and justice in any biblical sense no longer exists in the eyes of lawmakers and the courts. The whole purpose is to bring about equality somehow, which means that those who have are to be penalized; corporations and well-to-do people, and those who are moral are to be penalized in favor of those who are immoral, those who are provident in favor of the improvident, and so on. Injustice is a matter of law today, and it will continue to be as long as God’s law is neglected and slighted. This should not surprise us. We are told in scripture that, “Except the Lord build the house, they labor in vain that build it,” and today, the foundation is man and man’s will, the state’s will, not the law of God. Let us pray.

Our Lord and our God, we give thanks unto thee that although men do legislate, their laws are suicidal. Their ways bring about their own destruction, but thy kingdom shall stand, thy will shall be done, and all the ends of the earth shall praise thee. O Lord our God, make us ever mindful how great thou art, how assured is thy victory, and how true thy word. Make us faithful. In Christ’s name, amen.

Are there any questions now concerning our lesson? Yes?

[Audience] When the courts and the church drifted apart in Britain, in the 17th century, it led to a civil war.

[Rushdoony] Yes, yes. And the sad fact is that too many failed to understand the basic issue in that day. If I might digress a bit, I read a life of Sir William Penn, the father of William Penn of Pennsylvania. The territory was given to Penn, who had been twice sentenced to prison for his Quaker faith, in order for Charles to discharge his debt to Sir William Penn, who had worked for years without pay and had a vast sum worth several fortunes due to him for various things. The interesting thing is that, as the author points out, not fully appreciating the implications, Penn is one of the forgotten heroes of British history. It was he, not Peeps, who was a thief and regularly robbed the naval treasury of money that seamen and shipbuilders had due to them. The strategies developed by Sir William Penn made the English navy great under Cromwell. They were used by one man subsequently in a magnificent way; Horatio Nelson. It was the enemies of Britain who remarked on the greatness of Penn. France, especially, where a book was written, virtually forgotten now, on the greatness of his strategy, and Holland. But Penn was a traditionalist, this is why he broke with his son when his son was converted. He was a Parliamentarian, he favored parliament, but he wanted both parliament and king to maintain the forms, and although he served under Cromwell, his sympathies left Cromwell when Cromwell dissolved Parliament, which was totally incompetent. The forms were what counted for him, and so he welcomed the restoration, but with the restoration, again you had a corrupt temple or a church, and corrupt courts. The theft from naval funds continued under Rupert, Prince Rupert, a totally vicious character, a man who delighted in torturing helpless people, and Peeps. And to prevent him from winning because if Penn commanded the fleet as he should, it was his position, they would have defeated the Dutch and the French, but since Charles was in the pay of the French government, Louis XIV, they had to get Penn out of the way. So, William Penn, Sir William Penn was held on charges of treason, subjected to the most disgraceful hearings, and after the navy was safely at sea to be wiped out, then everything was dropped, but the older remained. They did not dare proceed further because he was a national hero. Penn dimly began to see it and when he was being taken, he saw the king and he said, “Am I to be your martyr?” But he didn’t break with either court or church, although his son, who was only a teenager, saw these things, and went to the other extreme and became a Quaker.

Now, it was Sir William Penn’s failure to see that you don’t follow the court and the temple just because tradition requires it, but they can be so corrupt that you have to stand against them. His unwillingness to take that step left him helpless in the face of his enemies, and I think that’s true today, if I may continue my digression. I think there are too many who are going to maintain a traditional loyalty and who are going to believe that the courts represent justice and their church after all, is alright, even though their church today is the enemy of God. That these two areas, men have to see their importance and they have to see when they depart from righteousness. Any other questions? Yes?

[Audience] Well, I wonder if the founding fathers, in creating the supreme court, didn’t set us on this road because they had elevated nine men to demigod status, they’ve built them a building that looks like it’s right off of Mount Olympus in Greece, and clothed them in robes, and made gods out of them, and people have come to accept that these guys have the receptacles {?} We’ve all seen that the {?}

[Rushdoony] Yes. Well, Jefferson said that they did not intend that the court do that. It was John Marshall who took that, but then he didn’t try to restrain them, and you are right. They have elevated the Supreme Court to a kind of Mount Olympus status, with a Greek temple as the model for the court. Yes?

[Audience] When the court ruled to step back a bit on the pro-abortion stand, then the state began to crack very quickly.

[Rushdoony] Yes. However, they only want to exchange one set of false gods for another. They will not turn to God until they’re broken. Any other questions or comments? Yes?

[Audience] Is a release from liability by contract which is so common now, is legitimate?

[Rushdoony] What?

[Audience] Is a release from liability by contract legitimate?

[Rushdoony] That’s a very good question. Yes, if you enter into the contract, you’re responsible. Just as if you were to walk out on a bridge that is in a bad state with a warning sign and it collapses, you can’t claim liability. You waive liability. You’re not forced to do that. Any other questions or comments? Well, if not, let us conclude with prayer.

Our Lord and our God, recall us to thy word and to thy ways. Make us faithful to thy son, our savior, Jesus Christ. We thank thee that He is king over all kings, Lord over all lords, and it is His rule alone that shall prevail, that thy judgment shall cleanse the earth, and thy word shall stand. 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.