Liberty, Prudence, Imperfection, and Law

“Politics, Law, and the Hebrew Bible,” By Steven Grosby

“The Prophet Jeremiah” by Michelangelo, Sistine Chapel ceiling.

The understanding and practice of law and politics in the Hebrew Bible: How long a shadow did God cast?

In the introduction to In God’s Shadow: The Politics of the Hebrew Bible, Michael Walzer rightly observes that the Hebrew Bible is about “a people who have leaders and laws, who experience bitter internal conflicts and wars with other nations, who disagree about authority and policy, who listen to public criticism of their government and society” (xi). He continues by alerting the reader of his intention to investigate “a set of questions [that] arise: How much room for politics can there be when God is the ultimate ruler? How much room is there for prudential decision-making in a nation that lives under divine command and divine protection? Does religious absolutism make for zealotry and holy war or for accommodation and peace?” These are good and proper questions, and they are pursued by Walzer as he examines “the biblical writings, more or less chronologically, as they deal with different covenants (Chapter One), the legal codes (Exodus 20-23, Leviticus, and the Deuteronomic code, Chapter Two), the successive regimes and wars of Israelite judges and kings (Chapters Three and Four), the experience of imperial conquest . . . and the arguments . . . that the writers make about legitimacy, hierarchy, and social justice (Chapters Five through Nine on prophecy, exile, wisdom, and messianism)” (xiii).

The reader hopes that, in the hands of Walzer, the answers to these difficult questions will be as good as the questions. The underlying problem of all of these questions, according to Walzer, is that the conflicts of the ancient Israelites, as described in the Hebrew Bible, “take place in the shadow of an omnipotent God” (xi). But is this so? Is the God of the Hebrew Bible portrayed as perfect, omniscient, and omnipotent? To reformulate these latter questions in the idiom of Walzer’s book, does the God of the Hebrew Bible cast a long or short shadow? And what relevance, if any, is there for politics to how long the shadow is? Is it the case, as Walzer claims, that “if we think of politics as a form of human coping with the problems of individual and group experience, then Israel’s politics had been preempted, as it were, by God himself” (66)? Is it the case that “insofar as a prophetic doctrine emerges from the [biblical] texts, it is a doctrine enjoining an entirely passive reliance on God” (206)?

Might it be that, in the Hebrew Bible, God is often described as casting a short shadow; and, if so, might there be space necessary for individual initiative, civil intercourse, and political activity? Clearly, human action is generally, but not always, evaluated in the Hebrew Bible within a conceptual framework that right behavior in relation both to God and to one’s fellow Israelites results in worldly success, thereby subjecting an understanding of the always messy, unpredictable world of politics (and nature, too) to great strain, and all the more so with ancient Israel buffeted, except for the brief but historiographically important period of the united monarchy of David and Solomon, among the Egyptian, Assyrian, and Babylonian empires. This strain is impossible to avoid, given the relative rationality of monotheism (the recognition or assertion, as the case may be, of meaning to existence) in the face of the unpredictability of human affairs. Nevertheless, responses to what Walzer asserts as “the classical political question—‘What ought to be done?’” (85)—are easily and repeatedly found within the Bible, indicating the need for a carefully calibrated, subtle understanding of the so-called Kingdom of God; for the course of action described and prescribed in the Hebrew Bible is not one of fatalistic passivity.

This qualification to how one understands the length of God’s shadow is clear even in the so-called universal history of the opening chapters of Genesis, where recognition of the sanctity of life, in light of Cain’s (humanity’s) propensity to transgress that sanctity, finally achieves, as it must in the Hebrew Bible, legal formulation binding upon all, even God (see Genesis 9: 14–15). What is portrayed in these opening chapters and subsequently is that the on-going completion of creation requires a developing human participation (often entailing questioning and disagreement; consider, for example, the questions—or are they admonishing laments, as one finds about the “sleeping God” in Psalm 44:24 and Isaiah 51:9?—of Abraham in Genesis 18 or Moses in Exodus 33, not withstanding the obedience of Abraham in the binding of Isaac in Genesis 22).

This seems to be both the implication of Genesis 9, when creation begins again with the new Adam, Noah, but this time with law, and the conceptual potential of the covenant in general, as the rabbis saw, where the development of law through its adaptive application is recognized such that we are partners in creation (see Babylonian Talmud Zevachim 115b and Shabbat 10a) but which is also clear in the Hebrew Bible. This recognition of a developing human participation, and the choices it involves, in creation is what accounts for the Hebrew Bible’s absence of a doctrine of original sin, in contrast to Paul’s letters. In this regard, note should be made that in the descriptions of the important covenantal ceremonies, portrayed as being no less than national assemblies of consent, in Joshua 24 and 2 Kings 23, God is not present; rather, the focus of those covenanting assemblies is the “book of the law,” which, as it is to be known to all, conveys, as Walzer (199–201, see also 23) and many others have rightly noted (see especially Joshua Berman’s Created Equal: How the Bible Broke with Ancient Political Thought), both a democratizing potential and interpretative disagreement, hence, the many examples of intrabiblical commentary and both differences among and revisions of the law codes.

In fact, further qualifying the length of God’s shadow, actions in many of the narratives in the Torah are often described as arising entirely out of individual initiative, for example, Sarah’s and Abraham’s treatment of Hagar (Genesis 16 and 21), Rebekah’s deception of her blind husband (Genesis 27), Jacob’s (Israel’s) relation both to Esau (Edom) and Laban (Genesis 25, 27, 29-31), Simeon’s and Levi’s revenge of their sister’s defilement (Genesis 34), Tamar’s deception of Judah (Genesis 38), the entire episode of Joseph, the disobedience of the Hebrew midwives (Exodus 1), Moses’s murder of an Egyptian (Exodus 2), almost all of the Book of Judges, Mordecai in the Book of Esther, Ruth’s fidelity to Naomi, obviously both the sword-wielding Judith and the Maccabees (the latter two outside the Hebrew Bible but in the Catholic Old Testament), and on and on, even the establishment of a national state (1 Samuel 8). In many of these and other examples, one observes disagreement over what should be the course of action.

Even with these many examples of individual initiative and the (occasionally contested) evaluations concerning them found within the Bible, Walzer is correct when he observes that “the biblical writers never attach great value to politics as a way of life” (125). After all, the Hebrew Bible is no political treatise. Thus, there is some merit to Walzer’s evaluation that “the biblical texts provide no doctrinal defense of—they hardly seem to take an interest in—political participation . . . Certainly the decision-making process was political (and moral) as well as legal. But it was never understood in political terms” (32). But I think that Walzer draws the wrong conclusion when he characterizes time and time again that the refusal to attach great value to politics as a way of life as antipolitical, engendered by a passive reliance on, or obedience and faithfulness to, an omnipotent God (11). An antipolitical anarchy (when “there was no king [state] in Israel; all the people did what was right in their own eyes,” Judges 17:6, 21:25; see also 18:1, 19:1) is rejected in the Hebrew Bible, as it led to the existence of what any reader of the Bible is clearly meant to understand as the Israelite Sodom, the horrific Benjaminite Gibeah of Judges 19.

It is more accurate to understand the Hebrew Bible’s evaluation of politics as one of skepticism toward the state and its coercive power, given the limitations placed upon the king in Deuteronomy 17, Samuel’s warnings in 1 Samuel 8, and those descriptions of what kings do, such as the episode of Ahab and Naboth’s vineyard (1 Kings 21). In light of this skepticism, it is not so remarkable that the descriptions of even David and Solomon are fraught with criticism. Even the authority of the prophesied son born to the house of David (1 Kings 13:1-2), the great king Josiah (2 Kings 22-23), is qualified not only by the book of the law (2 Kings 22:11, 23:3) but also by the prophetess Huldah (2 Kings 22:13-20). Political philosophy ought to have a great deal to say about this criticism and qualification. Assuredly, it is to go too far to suggest that the relentless criticism of the kings and the qualifications of their authority represent a constitutional separation of powers, although evidently there are different loci of authority likely expressive of the recognized priority of law in contrast to the rule of the king. Nonetheless, we would like to know more about who Huldah was. Was she in some way involved with the evidently on-going Israelite legal deliberation and revision? These questions aside, the criticisms of the kings and the qualifications of their authority suggest a skepticism, characteristic of the axial-age religions but which is also expressed in the Epic of Gilgamesh, about the significance of politics, that is, politics is never supreme as it is answerable to (God’s) law and the well-being of the nation. Political philosophy ought to have a great deal to say about this skepticism.

The complication of the Hebrew Bible for politics is that this skepticism and its persistent, quite practical recognition of the evidently unavoidable abuse of political power are combined with a continual emphasis on the existence and survival of the nation of Israel (and the land “from Dan to Beersheva” as its land). One consequence of this combination (most certainly found in the law and throughout the prophetic corpus) is, as Walzer observes, “the central question of Jewish political thought: just how important is sovereignty, independence, and authoritative direction? How important is it to have, like the other nations, kings of one’s own, who appoint judges and fight wars?” (124).

The answer of the biblical narrative to Walzer’s question, “Is Israel best conceived as a political nation or as a community of faith” (205) is clear: it is as a sovereign nation that does not idolize politics. The answer is clearly conveyed by the freedom of the repeated refrain of Exodus, “Let my people (‘am) go,” and the freedom implied by the historiographical emphasis of the Hebrew Bible on the sovereign kingdoms of David, Solomon, and Josiah, when Israel had become an independent national state (gôy). As has long been recognized, the shifting usage of the biblical ‘am and gôy, respectively translated as “people” and “nation” (often better rendered as “national state”) is instructive for ascertaining the politics of the Hebrew Bible. Even though the subsequent history of the Jews complicates this answer, it is very difficult to imagine Judaism without that emphasis on the nation and its land. If it is imagined in this way, Judaism dissolves into some variant of an ethical standpoint. What I think is clear from the biblical narrative is a recognized distinction between sovereign Israel and the king—a distinction crucial for the relation between liberty, law, and politics, as Bracton, Hotman, Selden, and many others have realized.

To misunderstand a skepticism about what politics can accomplish as an antipolitical passivity—where there is “not much room for independent decision-making” (125; whatever that is supposed to mean) because “Israel’s destiny was firmly in God’s hands, as it had always been, ever since God himself overthrew the Egyptians” (203–204) and because “in principle, God doesn’t need help” (my emphasis, 206)—seems to me to indicate that Walzer is operating with assumptions and preferences that are at variance with the covenantal framework of the Hebrew Bible and its implications. Put bluntly, skepticism about politics isn’t the same as indifference to politics. After all, it is certainly possible to recognize both the necessity for politics and that politics is but one among several, likely more important activities. The obvious problem is to ascertain precisely what, in the Hebrew Bible, it means to be “firmly in God’s hands.” Thus, one would like to know what principles are assumed in Walzer’s use of “in principle,” given the teacher of the Hebrew Bible: human experience as known through the history of Israel.

These are, of course, difficult, complicated matters about which there is legitimate dispute. Much of Walzer’s treatment of these questions and problems is worthwhile and richly textured. The book has the merit of dealing directly with the Hebrew Bible while engaging some of the better biblical scholarship, in contrast to the occasionally insightful but too often intellectually jejune exercises of those who, for example, read Genesis and wonder if it were written by a Rousseau or who wish to know if Moses was Machiavellian. Whatever the shortcomings of this book, Walzer takes the Hebrew Bible too seriously to waste the time of the reader with those kinds of distractions from a careful investigation of the Hebrew Bible. Nonetheless, as we shall see, Walzer’s treatment sometimes lacks the subtlety required for a proper understanding of politics in the Hebrew Bible.

What conclusions to draw about politics from the biblical narrative is a notoriously difficult problem for numerous reasons. Sometimes the narrative is metaphor-laden with punning, an obvious example of which is the polemic directed against the rapacious, imperial Babylon, with the clumsy pun Babel, putatively from balal (to confound), to refer to both the confusion of language and Babylon (Genesis 11). Less obvious is the obscured, pun-filled description in Genesis 25 and 27 of part of the eastern boundary of the nation of Israel (Jacob) separating it from the nation of Edom (Genesis 25:23-25, with the pun ’adom, red, Esau to indicate Edom, see Genesis 36:1). As we learn subsequently, Esau (Edom) is hairy (se’ar, a pun to indicate Mt. Seir, the toponym for Edom, Genesis 32:3) while Jacob (Israel) is smooth-skinned, halak.

While there is much going on in this episode of the familial relation between Jacob, Esau, and the strong-willed Rebekah, it is certainly more than just a domestic episode, subsequently understood by interpreters of the Bible to indicate the providence of God; for it is likely that the depiction of the distinguishing physical characteristics of the two brothers is being driven by the intention to describe the boundary separating the two nations, as described in Joshua 11:17 and 12:7, “that runs from Mount Halak up to Mount Seir.” Thus, only on a superficial level is the story of Esau and Jacob a familial drama of “domestic politics” (50); for on a deeper level, it indicates that the biblical authors were preoccupied with the description of the delimited, bounded land of the nation of Israel—a territorial preoccupation that represents a layer of shared, Israelite self-conception distinct from politics but which cannot avoid implications for politics. It is obviously the case that these political implications are conveyed through a domestic narrative, as is often the case in the Hebrew Bible, and, thus, may be obscured by it, in contrast to a work like Aristotle’s Politics; however, the author of this narrative makes it perfectly clear in Genesis 25:23, “Two nations are in your womb,” that this familial conflict is a metaphor for the relation between two nations.

Also contributing to this difficulty of ascertaining the politics of the Hebrew Bible are those various accounts that, if they do not exist in outright conflict, are in tension with one another, for example, despite the many criticisms of kingship, the well known promise of the perpetual Davidic throne (2 Samuel 7:12–16). Thus, one should not be overly critical of this book’s hesitations, moving back and forth between, for example, repeatedly emphasizing God’s absolute authority, on the one hand, and many good observations about the initiative implied by the revisions of the legal codes (Chapter 2) or apparently conflicting laws of warfare (Chapter 3), on the other, as Walzer probes one tendency and then the other. Nonetheless, what has to be done is to discipline one’s analysis by turning to material that may be more revealing for understanding the politics of ancient Israel, the law.

In the following brief discussion about what an analysis of the law can reveal for our understanding of the politics of the Hebrew Bible, I shall restrict myself to two examples not taken up by Walzer. The first deals with a noun that appears sixteen times in the Hebrew Bible, seven of which are in the legal code of Leviticus, ’ezrach, literally “native,” as in “native of the land” (the noun is several times modified by “land”). This noun ought to be of special interest to the political philosopher because its use, as a synonym for “Israelite,” makes clear the jurisdiction of the law, so, “You shall have one mishpat (standard, civil law) for the ger (the alien who resides permanently in the land of Israel) and the ’ezrach (Israelite = native of the land)” (Leviticus 24:22, see also 18:26). Thus, the noun indicates both a (developing) territorial kinship—Israelites are those born in the land—and a juristic conception of a “law of the land” that, as such, acknowledges a territorially bounded legal equality, in contrast to “personal law”: a civil (but not religious) equality that encompasses the non-Israelite permanent resident but not the transient foreigner. Now, while Walzer does not discuss this noun, he often acknowledges the significance of a “legal culture” in the Hebrew Bible, curiously contrasting it with politics. But surely legal anthropology is pressingly relevant for politics; and all the more so when most recent English translations of the Bible render, rightly or wrongly, ’ezrach as “citizen”! It surely is a reasonable expectation for a political philosopher to analyze the use of this noun, as doing so would entail how one should understand the category of citizen.

The second legal example also richly deserving the attention of the political philosopher is the judicial principle, ignored by Walzer, conveyed by Leviticus 19:15, “You shall not render an unfair decision: do not favor the poor or show deference to the rich; judge your people fairly.” One might restrict one’s understanding of this verse as being a plea against judicial corruption, as in Deuteronomy 16:19, “You shall not judge unfairly; your shall show no partiality; you shall not take bribes, for bribes blind the eyes of the discerning and upset the plea of the just.” But Leviticus 19:15 conveys more, namely: an impartial legal equality that stands in contrast to a preferential treatment that, in the name of usually a shifting, hence arbitrary, conception of social justice, favors some individuals at the expense of others, for example, when Luther argued that the “law of love” compels the creditor to forgo restitution if the debtor is poor (see Luther’s conclusion to On Secular Authority).

To be sure, one can hardly ignore, nor should one ignore, what Walzer calls the “social ethic” or “social justice” of the law codes, for example, Exodus 22:26–27, Leviticus 19:9–10, Deuteronomy 24:10–13, and the prophets of the Hebrew Bible (47, 107–108, 209–210). Nevertheless, “this retail program [of] the social ethic of a covenantal community [to] do justice, protect the weak, feed the poor, free the (Israelite) slave, love the (resident) stranger” (209) is clearly legally qualified by an insistence on evidently the civil equality before the law. This qualification to the social ethic of the Hebrew Bible ought to be acknowledged.

The hesitations of this book’s arguments are understandable given the conceptual tensions of the Hebrew Bible—tensions that may very well correspond to the complications of human existence—but they also, when not developed with the subtlety they deserve, leave a reader wondering just what Walzer’s argument is. That this is so is nowhere more obvious than in the analysis of prophecy (Chapters 5 and 6), specifically, the so-called trial of Jeremiah as recounted in Jeremiah 26 (84–87). The overall impression one has from the arguments of this book about the politics of the Hebrew Bible is—as expressed in, and evidently confirmed by the discussion of prophecy—that “the culture which the prophets drew, whose resources they deployed, was a religious (and legal) culture rather than a political one” (87). And so, as I noted earlier, the religious question of whether or not a prophet speaks in God’s name is, according to Walzer, what is at stake, and not “the classic political question: what ought to be done” (85). Thus, “no prophet, once prophecy had emerged from the court into the streets, showed any real interest in the actual politics of reform or any readiness for the compromises this might require . . . [their way] was a fiercely antipolitical radicalism. Prophecy was a kind of public speech that militated against deliberation. God’s message overrode the wisdom of men” (88). How accurate is this conclusion?

That prophecy in the Bible is often radical is a commonplace. But at crucial times it could also convey a calculated prudence and deliberation, as, in fact, one finds in the very example of Jeremiah. The existential question facing Judah at the beginning of the sixth century BCE was whether to resist militarily Nebuchadnezzar’s Babylon. Except for those brief periods of unmolested independence of the Kingdoms of David and Solomon, and, until the military conflict with the Egyptian Necho (following 2 Chronicles 35:20–24 over the ambiguous 2 Kings 23:29), the regime of Josiah, hence, their elevated, political stature in biblical history and prophecy, the alternatives confronting the Israelites at this time were those often posed during the history of Israel: to resist or to succumb by paying tribute. We are occasionally given indications of what must have been intense political debates at that time over whether to form an alliance with the dreaded Egypt as a hoped-for ally against Babylon (see, for example, Jeremiah 37:5–8 for the hope of the pro-Egyptian party).

A great deal of the Book of Jeremiah has to be understood within this context, even though—and here, Walzer is correct—much of Jeremiah’s prophecy takes place in what we understand today as religious discourse. But not all! Occasionally, Jeremiah’s prudent, political deliberation in the crucial arguments over the survival of Israel can be seen, as in 27:17, where Jeremiah, addressing the priests and people, says, “Do not listen to them; serve the king of Babylon and live; otherwise, this city shall become a ruin;” and in 38:17, where Jeremiah, offering politically dangerous advice, in, as a consequence, an enforced privacy (38:24–29) with King Zedekiah, says “If you surrender to the officers of the king of Babylon, your life will be spared and this city will not be burned down; You and your household will live.” The stakes could not have been higher, as can be seen from Jeremiah’s position being viewed by those supporting resistance to Babylon as treasonous, hence his imprisonment (Jeremiah 38).

Irrespective of how one judges Jeremiah’s political position here, it is a misunderstanding to evaluate it as a passive, antipolitical radicalism. Furthermore, there is no good reason not to view the conflict with the (false) prophet Hananiah (Jeremiah 28), given its context, as having aspects of a political debate. Thus, an interpretation of Jeremiah’s advice different from one of “escaping political responsibility” (106) is plausible. That this is so and the reason why the reader of In God’s Shadow is left wondering what to conclude from Walzer’s argument about prophecy and its relation to politics is that, while in Chapter 5 he characterizes Jeremiah’s (moral) radicalism has having very little or actually nothing to do with politics, in Chapter 6 he describes Jeremiah’s advice to capitulate to Babylon as “a prudent and intelligent policy” (105).

Prophecy and its relation to prudential decision-making is an appropriate place to conclude these comments, as the determination of the truthfulness of prophecy has much to do with the length of God’s shadow cast over the ancient Israelites. We know from how Deuteronomy 18:21 is formulated that the evaluation of prophecy must have been a pressing problem for the ancient Israelites, “You may ask yourself, ‘How can one know that the word was not spoken by the LORD?’” The answer to this question is, “If the prophet speaks in the name of the LORD but the thing does not come true, it is a word that the LORD has not spoken.” Now, this solution to the problem does not provide clear instruction on how, for example, to decide between Jeremiah and Hananiah on whether or not to revolt against Babylon as its army is approaching; nonetheless, the criterion is one of straightforward empirical verification. And, in fact, this practical, evaluative criterion is also conveyed by the covenantal framework of the Hebrew Bible, even though, as a result, its consequences, in the light of historical experience, can open the door to challenges to the God of ancient Israel, as can been seen from the arresting Jeremiah 44:16–19.

One can speculate with good reason about a practical, prudential habit of ancient Israelite thought as conveyed in the Hebrew Bible if one draws a conceptual connection between the empirical verification of prophecy and the rationalization of the law as typified in the rules of evidence (for example, Deuteronomy 19:15) and a legal code that must be legibly written down and publicly promulgated. To be sure, there is more to biblical thought, not least of which is a vision of a better future; but the recognition of the latter should not obscure the existence of that habit of thought.

Be that as it may, to conclude that God’s shadow is so long that the Israelites could only walk in the darkness of political quietude seems to me to be a caricature of the biblical narrative. There appears to me to be overt political teachings in the Hebrew Bible: the rule of law, skepticism about both what politics can accomplish and certainly political power, a recognized distinction between the nation of Israel and the king, and hostility to empire. How could it be otherwise given the Hebrew Bible’s preoccupation with life in this world: its transmission, its freedom, and its order. Even so, I think that by and large what we find there are implications for politics. If one reads In God’s Shadow as an investigation into those implications, then the book should be viewed as a contribution worthy of one’s attention.

 

Steven Grosby is Professor of Religion at Clemson University. His recent works include Nationalism: A Very Short Introduction (2005), Biblical Ideas of Nationality: Ancient and Modern (2002), and the edition and translation of Hans Freyer, Theory of Objective Mind: An Introduction to the Philosophy of Culture. This essay was originally published in August 2012 at Liberty Fund’s Library of Law and Liberty, and it is republished here with gracious permission from that web-magazine.

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