Chapter 15 (Court Structures) pages 249-262
North begins this chapter by quoting Lev 19:15 - the same verse as in the previous chapter. Whereas the last chapter dealt with impartiality in judgment and then went on to deal with Socialism and Liberation Theology, this chapter is mainly dealing with the structure of the justice system as it appears within the Scriptural framework of the Mosaic Law, going on to apply what they have to say about present day structures within the legal system.
I was torn between answering North’s points one by one as they occur or compiling a list of Scriptures which demonstrate the legal system as it was and as it was developed during the time of Moses so that it can be compared to his teaching. I eventually decided to do both and I’ve included the judicial structure under Moses here rather than as a separate web page at the end of Part Three.
It appears from the Law books that Moses sat as the supreme judge over all Israel and not only the supreme but the one and only (Ex 18:13). When Moses’ father-in-law saw what was taking place, he proposed a judicial system that would take the burden from off Moses and place it into the Israelite camp, the new established judges taking upon themselves the easier of the decisions but commanded to bring to Moses the harder cases over which they couldn’t come to a satisfactory decision (Ex 18:14-26).
The subsequent appointment of seventy heads over the nation (Num 11:10-30, Deut 1:9-18) appears to be not the institution of another ‘judge’ structure but the setting up of a leadership structure that took part of the authority away from Moses as he’d requested. It’s possible, though, that they somehow sat with judicial responsibility, but it’s difficult to be certain just what that was.
Ex 18:13-26 reads as if each judge sat independently to give justice to the people and that there was no collective decisions made by agreement of two or more judges sitting simultaneously on one case. However, Ex 21:22 speaks of the judged Israelite having to pay what the judges determined was a fitting penalty and other passages also deal with the mention of a plurality of judges (Deut 19:15-21, 21:1-9, 25:1-3). How this actually worked out in practice is not easy to determine seeing as, at the time of the judges prior to the kingdom of Saul, Samuel travelled a ‘round’ seemingly independently to dispense justice to Israel (I Sam 7:15-17).
Whether there was normally a ‘judge’ or ‘judges’ has to be left open, but there are indications within Scripture that show us what the judicial structure was at that time. Nearly all of these references appear within Deuteronomy - after the appointment of the seventy elders of Deut 1:9-18 - so it’s possible that when ‘judges’ are referred to, a body of appointed men are being directly referred to that could even be the part or whole of these seventy.
Taking them strictly in the order in which they appear...
Deut 16:18-20 tells us that judges and officers were to be appointed in all the towns in which they were to take up residence within the land of Canaan. An expansion of Lev 19:15 is included here and the verse tells us nothing about who these ‘officers’ might be - whether they may, perhaps, have been appointed to enforce the decision of the judge or for some other reason isn’t apparent, but later on we’ll see that ‘priests and judges’ are mentioned. It’s possible, therefore, that these ‘officers’ were also Levitical priests.
The structure here is similar to the appointment of judges within the camp - justice must be close at hand for every Israelite.
Deut 17:2-7 doesn’t mention judges but, in the case of a man or woman going after other gods and serving them, there’s a need for the nation to make sure that the accusations that have been levelled at the alleged transgressor are accurate. It appears as if the local community are to decide upon this matter (even though it’s not impossible that the judges within the town are to investigate the matter and pronounce judgment), the witnesses being the first to cast stones at the convicted Israelite before the rest of the community join in. In this way, justice is seen to be meted out corporately and the judge isn’t seen to be an independent agency acting outside the will of the community.
Deut 17:8-13 speaks of priests and judges being the body that decide on matters when the case is too difficult for the judges that are located within the towns. This ‘body’ would eventually be located in Jerusalem, ‘the place which YHWH your God will choose’.
Notice what this passage says. There was no progression of judgment - if the case was too difficult to be decided upon by the town judges it was immediately referred to the central court, there being no ‘regional court’ that it could be brought before first.
The decision of the court was also final and had to be obeyed unswervingly - there was no right of appeal.
Deut 19:15-21 doesn’t speak of the referral of a case to the court in Jerusalem but it still mentions that the case should be heard before the priests and judges, indicating that there was a body of judicial authorities who were to give justice to the nation within the towns. Both priests and judges were to be appointed within all Israel’s towns so it’s quite reasonable to see this legislation as covering the local courts.
The passage lays obligation upon the judges to ‘inquire diligently’ and this will have been the initial work that they were expected to do - though, today, in the UK we have a police force that carry out the investigative procedures before presenting it before a judge and jury, in ancient Israel there was only one body of people, the judges, who did both. This is by far the better of the two systems as it relies upon a judgment being made by someone who has firsthand knowledge of the facts of the case instead of having to rely upon the strengths of arguments and evidence that’s presented before him or her.
This is supposition but it seems logical to assume that the judges’ role was to both investigate and pass sentence, while the priests were present to make sure that the Mosaic Law was upheld (seeing as they were commanded to teach Israel the law - Deut 33:10).
In Deut 21:1-9 we read of the case of a man being found slain in open country. Judges are here mentioned just the once and the elders of the surrounding cities are the group of people who carry out the procedures laid down. The judges may have needed to be present to ‘diligently inquire’ (as 19:18) concerning the matter and to make sure that there was no evidence that the assailant was known - this, again, is supposition but, as no judicial decision needed to be made here, it’s difficult to see why their presence would have been needed.
Deut 25:1-3 speaks of the judges ordering the sentence pronounced to be applied and a restriction is placed upon the severity of the punishment.
Notice that throughout these Scriptures, there’s no mention of a jury system. Neither is there laid out an appeals procedure, the word of the judge being final - even though there’s a ‘high court’ in Jerusalem, appeal can’t be made to it but it sits only to decide upon matters that are too difficult to decide upon within the towns. Neither is there a progression of judgment where a decision is handed ‘upwards’ to have its judgment endorsed. Neither is there a police force who bring charges against individuals or groups of people. Neither is there a specialised body appointed who metes out punishment decided upon - in the case of one of the judgments, it’s the local community who mete it out.
There are two further Scriptures here that need to be considered before we close.
First, Num 35:22-28. This is a unique case concerning ‘death by accident’ and the rights of the ‘avenger of blood’ who was obliged to mete out justice on behalf of his relative. The congregation (that is, the community of Israel) were to have a function in this legislation and the judges never come into the picture.
The congregation are commanded to implement the judicial procedure and it’s they who must decide upon the facts of the case, being obligated to rescue the innocent party from the hand of the avenger of blood if they come to that decision.
The congregation are acting as judges here (and it’s the only instance where they do so) and also as the enforcers of the decision - but they aren’t acting as a jury system in any type of court of law (that is, they’re not making a decision based upon the evidence for the judge to subsequently impute punishment).
Second, I Cor 6:1-8, where we read Paul’s instructions to the Church concerning judging matters instead of using civil court procedures. The simplicity that Paul lays out here is that a man (I do not deny that there may have been more than one who were to decide upon the case, but Paul does talk about ‘a’ man) capable of weighing evidence should be found amongst them and that he should weigh the evidence to reach a just decision.
This structure is virtually identical to that within the Mosaic Law. Of course, the detail that we’d like to be present within Paul’s writings is not there (is it ever?) but what’s said does parallel and mirror the Old Testament legislation. For this reason, there seems to be no reason why the Church shouldn’t still be functioning in the same sort of set up that existed under the Old Covenant and that, when a brother has a disagreement against a brother, a capable Church representative should judge the case (and by ‘capable’ I don’t mean that it must be the Church leader...being capable of sound judgment in earthly disputes is not always a characteristic of leadership - I just wish it was).
So, onto North’s chapter (a lot of what North writes is dealt with above but I’ve picked out a few points that deserve to be highlighted separately).
North writes that Lev 19:15 (page 249)
‘...established the requirement that the citizens of Israel from time to time be required to serve as civil judges in their communities (Ex 18:21-22)’
However, the passage in Exodus that he quotes doesn’t prove this and only lends weight to the set up as previously described - that there was an appointed bench of judges who sat over Israel to give them justice.
The Levitical passage doesn’t indicate that any Israelite could sit as a judge over the people and, even from subsequent Israelite history, it appears that there were ‘judges’ specifically appointed (see the book of Judges, for instance, and the numerous times when men and women were called ‘judges’ who had a job that’s spoken of more than something that was from ‘time to time’).
The point of Lev 19:15 is that the nation must be made to realise that impartiality is necessary when judicial decisions are to be made. Not only must the judge know and apply this but the congregation must know this and be ready to apply it should they be appointed as judges at a future date. The verse doesn’t have to indicate that the congregation in general are expected to hand out decisions as ‘judges’ - comparison with the Mosaic Law passages confirms this (see above). The term and context of the translated word ‘neighbour’ that appears in Lev 19:15 is made much of by North, apparently to denote a local court and is, perhaps, the reason why when the Scripture says
‘...in righteousness shall you judge your neighbour’
that it’s assumed that the entire congregation was expected to ‘serve as civil judges in their communities’. But the word ‘neighbour’ isn’t limited in scope to either the person who lives beside another (as it’s usually in today’s culture) or, even, to the people within the local community in which they lived.
Lev 19:18 parallels the word ‘neighbour’ with the phrase ‘the sons of your own people’ meaning fellow Israelites. Therefore this term ‘neighbour’ should realistically be seen to include the entire nation of Israelites who were to be resident within the land.
In the New Testament, both Jesus and Paul spoke of ‘loving your neighbour as yourself’ (Mtw 22:39-40, Rom 13:9) as being the summation of the Mosaic law. That the legislation had to do with the entire nation of Israel is, therefore, not in doubt and the scope of the ‘neighbour’ should rightly be seen to extend even further beyond the national boundaries to include even the people and nations that were abhorrent to them (Luke 10:25-37).
North jumps to the conclusion (page 250) that
‘...jurors...must be recruited from the local community’
when the office of a juror is never mentioned in the Scriptures nor implied. North will go on to talk about the qualities of jurors but, when he does, he’s seeing a set up within Israelite society that wasn’t there - there was never an independent local body appointed by the State to come to a decision as to the person’s guilt or innocence. That was solely the function of the judge (except for the one possible exception previously noted).
On page 259, therefore, his statement that
‘It is the jury that announces guilt or innocence after having heard the arguments of conflicting parties in the courtroom...The jury system is a necessary outworking of a biblical legal order’
is unfounded. It was the judges who were to investigate the matter and have first hand evidence upon which they were to decide. There’s no provision in the Mosaic law to have a juror system at the local court level (or any other level, for that matter).
Again (on page 252), North brings the subject of an ‘appeals court’ into the argument - a concept that, as shown above, was alien to the set up under the Mosaic law.
Later on, North will state (page 257 - my italics)
‘As the cases grew more difficult, they would work their way up the appeals court system’
but neither does this ‘system’ exist anymore than the appeals court.
It is important that, as the reader moves through this chapter, he’s not taken in by terms and labels that he’s accustomed to hearing and reading, allowing North to christianise them into a Scriptural framework.
We’d love to think that our juror and appeals system is God’s commandment concerning the judicial system (or even a logical extension of it) but the concept of both is sadly lacking from the Mosaic law.
North asks the question (page 251)
‘Who possesses the initial right and responsibility for speaking the law and enforcing it?’
‘Exodus 18 is clear: local magistrates’
‘Speaking the law’ is an obligation of the priesthood (Deut 33:10) and the fact that ‘priests and judges’ are mentioned as forming the local judicial system indicated to us above that, although the judge is responsible for both the investigation and the judicial decision, the place of the priest is to state and uphold the requirements of the Law.
Funnily enough, North will go on to state (page 252-3 - my italics) that
‘The tribe of Levi was the only cross-boundary national tribe...that publicly spoke God’s law’
which would have served as a better answer to his original question.
Certainly, North is correct to see the ‘local magistrate’ (a term which clouds the issue - the Bible simply refers to them as ‘judges’) as being God’s instrument of enforcement but not as having a responsibility necessarily of speaking out the requirements of the Law.
North sees in the set up of Ex 18:13-26 (page 253)
‘...the establishment of a hierarchy of judges...The authority to impose civil and ecclesiastical sanctions moved upward judicially...from the local jurisdiction to a more distant jurisdiction’
He’s here invented a judicial structure whereby difficult cases were being passed ‘up the line’ to better and better judges until, if no decision could be made, it arrived with the ‘High Court’ in Jerusalem where a decision was to be given.
Not only is that against the Scriptures previously discussed, but the (Ex 18:21,25)
‘...rulers of thousands, of hundreds, of fifties, and of tens’
has to be taken to mean that a ruler of a hundred was over two rulers of fifty who, in turn, were over five rulers of ten. But the Scripture needn’t be pressed to yield this formula and, by looking at the other Scriptures (where the absence of any such structure is notably lacking), we see that it more likely means that, should a man have a greater ability in judgment, he was given jurisdiction over a greater number of people. A lesser able judge was given a smaller jurisdiction.
A ‘hierarchy’ needs not to have to be seen here.
When North notes (page 257) that
‘Capital sanctions were carried out by the people, beginning with the witnesses...’
he’s correct, but he goes on to use the Scripture I Sam 14:45 to state that the voice of the people has the authority to overturn the judicial decision of the head of the ‘High Court’ when a decision is made that they disagree with (page 257). He notes concerning this Scriptural event that
‘The people placed a judicial boundary around the king, and they were willing to place a physical boundary around him. He relented. On what basis could they overturn the king’s sentence? Only as authorized jurors who refused to convict Jonathan because the king’s verbal legislation on the battlefield had been foolish and therefore unconstitutional. Their declaration of “not guilty” was final, and Saul accepted it’
But this is supposing that the event was a recognised court hearing which it wasn’t - the king had authority over the High Court in Jerusalem to judge cases that were too difficult for the local judges to decide upon, he had no right to hold a court hearing outside the city where local judges were responsible for judicial decisions.
All that is happening here is that Saul is making a rule for the army that later the people rebel against.
Through this, North is seeing justification for a juror system and, more than this, is seeing the right of the jurors in the present day judicial set up to overturn the judgment of a presiding judge.
He writes (page 259)
‘The jury places limits on the judge’s authority to decide the case...The jury is a Christian institution’
But, though that may be what North would like to see, it’s not a Scriptural teaching - either from the I Samuel passage or from the Mosaic Law (or from the New Testament). North’s teaching under the heading ‘The Biblical Jury’ (pages 260-1) is foundationally wrong, therefore, just as the presupposition of the jury system is accepted as being necessary rather than being an established fact from the Mosaic Law. In the conclusion (page 262), North will note that
‘The jury is the culmination of a long tradition of Christian history’
but I see no reason to transfer the system that’s defined in both the Old and New Testaments for one that has little, if any, Scriptural foundation.
North also concludes (citing Calvin as a reference - page 257)
‘This was the great authority of kingship: exercising the power of speaking in God’s name as the single individual who could declare God’s final earthly judgment, unless the people lawfully revolted under the direction of the lower magistrates’
but this, again, is not provided for under the Mosaic Law.
When North notes in his conclusion (page 262) that
‘A jury is less likely to be arbitrary than a lone judge’
he’s correct - but the latter (in Biblical terms and function) is more likely to arrive at a correct decision seeing as he’s also the investigating officer while the former are only hearing evidence and judging its significance by the way it’s presented to them. The jury does not have a right to investigate the matter but it must rely solely upon the evidence that’s presented to it.
Therefore, when it comes to the accuracy of the judicial decision, the Mosaic set up of local investigative judges is to be preferred.
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