Text: Exodus 18
Although I am no advocate of breaking down the separation of church and state, I am also comfortable with using the Bible as a source for understanding legal and social concepts. Thus, Exodus 18 provides an excellent source from which to understand certain crucial legal concepts.
A. The text itself
In Exodus 18:13, we find Moses acting in the role of the judiciary, “sitting to judge the people…from morning until evening.” In Exodus 18:16, Moses explains that “whenever they have problem, [namely the citizenry] they come to me and I judge between man and his neighbor. I impart to them God’s statutes and laws.”
From this last line, we are thrust with the impression that the people for whom Moses is judging are unaware of “God’s statutes and laws.” In Exodus 18:18, Yitro, Moses’ father-in-law, expresses concern about Moses’ wearing himself out by endeavoring to be the sole decision-maker. Thus, he advocates, the following: (1) enlighten the people as to the statutes and laws; (2) seek out capable, honest, incorruptible people to serve as judges, so that Moses would charged only with the “major” problems.
Yitro concludes his recommendation with a line that warrants interpretation, and probably deserves multiple interpretations. He says: “If you do this, and God commands you to do this, you will be able to survive, and also this entire people will come to their place in peace.” Moses complies with this suggestion.
B. The concepts therein This story is an excellent illustration of several legal and constitutional concepts, along with ideas central to this blog.
A government of law, not men
Yitro advises Moses to educate the citizenry about the laws that govern their social conduct. Educating the citizenry as to laws that govern conduct is not required merely to maintain the power of a government. In fact, many regimes throughout history have maintained control over society by exercising power randomly and maintaining a state of confusion and fear as to what actions might be lawful or unlawful. Often in those societies, the people are uneducated as to rules under which they live, so they are often unable to truly decipher when the governing powers are abusing their authority.
However, when the citizens know the law, they are more likely to disdain abuses by government or government officials. It also strikes me that citizenries with knowledge of the law in which they live are more inclined to be fair and egalitarian. For one, when citizens are equally aware of their rights, it is harder for one to take advantage of another and easier for individuals and groups to exercise their rights.
Additionally, when the law is publicly available, there is a general sense in society that they live under the rule of law, making an example of John Adams’ expression “a government of law, not men.” The term, “a government of law, not men” is essential to understanding the American legal system. In the American judicial system, judges are required to rule based on the application of the relevant law.
Although every judge is influenced by his or her own morality, ethics, and personal desires, his or her judicial decisions are required to be limited to applicability of the law at hand. As a lawyer, I often find myself telling potential clients, “as much as I think you have been morally and ethically wronged or mistreated, I do not think the law provides a remedy.”
2. A layered judiciary with distinct appellate courts
Yitro instructs Moses in 18:21 “You must seek out from among the people, capable, God-fearing me, men of truth, who despise gain. You must then appoint them over the people as offices… Let them judge the people at all times. Every major problem they will bring to you, and every minor problem, they shall judge by themselves.” The text itself provides for a layered judiciary where minor problems are handled by the lower court and major problems are handled by Moses himself. In American law, all trials are handled by lower courts and higher courts are assigned to address legal questions the lower court may have gotten wrong or not properly thought through. Thus, litigants who believe that the trial court has ruled incorrectly may appeal to the appeals court and obtain a ruling requiring the trial court to apply the law differently. I have reason to believe that Yitro has a similar notion in mind.
In Numbers 36, the brothers of Zelophehad, a man who died without sons, appealed to Moses to assign his land to them rather than to Zelophehad’s daughters, as if they married men of another tribe, the land would be cut off from their tribe. Presumably, the brothers of Zelophehad sought the assistance of Moses after not obtaining a satisfactory result from the trial court.
3. Caselaw
Moses rules that the land should be passed to the daughters, but that the daughters should marry within their own tribe, but avoiding any cross-tribe land transfer. The text indicates that Moses ruled according to God’s instruction, but it is unclear if Moses sought God’s instruction in this particular case, or if this is a reference to the notion that courts of appeals are regularly asked to interpret the law—and once they do so, their rulings have the legal affect of being treated as if they were literally the text of the law. In other words, Moses, as an appellate judge, considered a factual scenario that the law did not explicitly address, and interpreted the law in a manner so that it could apply to the situation at hand. The Torah concludes the text by indicating Moses ruled according to God’s instruction. Similarly, appellate court seek to rule according to the written law they are applying—and once they rule, principles of the rule of law require that everyone treat the court’s decision as if it were the law itself.
Conclusion
American law did not form in a vacuum. Many legal principles we employ have precedent in numerous other contexts. The Bible can serve as an attractive reference point because the text is treated with so much importance by so many people. I personally find it so very fascinating that in only a few pages of Bible text I can explain so many legal principles applicable to our present legal framework. In fact, I would not be surprised if further examination of the texts I discuss here would yield even more legal concepts. It is just so fascinating.
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