Introduction (2)

The legislation of Moses, viewed from a historical standpoint, is one of those systems through which history, by means of particularly gifted individuals, periodically expressed the entire sum of the historically developed and recognized fruits of religious, moral, and intellectual development—the whole circle of the ideal worldview of a given epoch. From this standpoint it is closely connected with the ordinary course of historical development, expresses one moment of that development, and therefore constitutes one member in the whole organism of world history, occupying within it a single definite place.

Scholars differ in their assessments of the place of Mosaic legislation in the history of humanity’s cultural development. Some—such as Bluntschli, Ahrens, and others—assign it a place within Eastern culture, pointing to a general feature of the Eastern cultural type: the predominance of the religious element over all other forces of human development, and a generally weak development of individual self-consciousness, which remains under the complete dominion of the religious principle, and hence a weak differentiation between law and morality. Others—such as our native jurist Kapustin—assign it a place on the boundary between East and West, pointing to the comparatively higher development of human personal self-consciousness in this system of law than in other Eastern legal codes. The latter view is more well-founded: it finds more confirmation both in the general spirit of Mosaic legislation and in its individual provisions. By its very idea, Mosaic legislation is the expression of a free covenant between God and the people (Exod. 19:8 and elsewhere), concluded as between independent and equal parties on terms freely accepted by the people—and this alone already shows the difference between this legislation and other Eastern legal codes, which represent not the expression of a free covenant but the direct command of a deity. True, it bears the general theocratic character that distinguishes Eastern legal codes, and draws a weak line between the domains of law and morality—but this is explained by the stage of development at which the legislation found the people. It found them at that stage of development when a people does not yet ordinarily work out for itself an independent worldview tested by a critically thinking mind, does not yet fully realize its own personal independence, places that independence in complete dependence on general higher principles, and in those principles finds the explanation of its entire life and existence. Such a general principle is usually the religious principle, as the most accessible to understanding. The people place this principle at the foundation of their entire life, even in those relations where, for a more developed self-consciousness, the foundation is usually an ordinary principle worked out by human beings themselves. Thus the sphere of law in its private relations is without question a result of natural social conditions, worked out by society itself in the interests of both society as a whole and each individual person—and yet at lower stages of development it is attributed exclusively to the deity. This explains the weak differentiation of law from morality. Undoubtedly, the sphere of law is in its essence simultaneously the sphere of morality; at their foundation they are identical. Their difference consists only in the scope of the circle of spiritual life subject to their governance. While morality embraces the whole life of the human spirit down to its most subtle movements that cannot be externally verified, law embraces only that aspect of spiritual life which manifests itself outwardly and can be subject to external verification, evaluation, and limitation. But such differentiation is possible only at that stage of development when a clear distinction is drawn between what constitutes the unconditional foundation of moral life (not subject to temporal change) and what is the product of human beings themselves (subject to change and limitation). At that stage of development where the entire domain of moral life, down to its smallest manifestations, is attributed to the deity, such differentiation naturally cannot exist—nor is there any need for it, since the deity, as the principal director of all life, has access to all its hidden movements and can extend its punishing hand even to those evil phenomena concealed in the recesses of the soul and entirely inaccessible to ordinary external law. Hence there, thanks to the special vitality of the religious principle, purely moral rules can carry the full force of legal statutes. This is why the Decalogue, for example, places alongside purely legal provisions—“you shall not kill,” “you shall not steal”—purely moral rules: “you shall not covet your neighbor’s wife,” and so forth; and for the people these had equally binding force. In this advantageous aspect, Mosaic legislation belongs to the general type of Eastern culture. But in its fundamental idea and in many particular expressions of it, it belongs to European culture—or better yet, to the type of humanity’s truly cultural development. Such it is in its origin, essence, and purpose, to the clarification of which we now turn.

In its origin, Mosaic legislation belongs to the extraordinary phenomena of history: in its main principles it was given to the people by Jehovah Himself at one of the most majestic moments in history, when God entered into the closest communion with humanity. “In the third month after the children of Israel had gone out of the land of Egypt, they came to the wilderness of Sinai,” and there, on one of the heights of Sinai, they made their encampment. Then Moses began to prepare the people for the extraordinary manifestation that was to open itself to their sight and hearing. Through consecration and strict abstinence the Israelites were to make themselves worthy and capable of receiving the exalted words of Jehovah and of accepting from Him their great calling. With strained attention and trembling hearts the people waited for the third day. A boundary drawn around the nearest rock was to separate the people from the holy place. In the morning of the third day a dense cloud covered the mountain summit; lightning flashed, piercing the mountain and turning it into a furnace wrapped in flame; peals of thunder rolled, reverberating from crag to crag and echoing many times over.

It seemed as if all of nature had departed from its ordinary course and was awaiting something great. “And all the people trembled,” and with failing hearts gazed upon the majestically terrifying spectacle. But however elevated this outward manifestation was, incomparably more elevated were the words that Moses heard and conveyed to the people. These words—the Decalogue—lay at the foundation of all the legislation.

But the legislation of Moses is miraculous and extraordinary less in the outward manner of its communication than in its very historical purpose and essence. Its purpose perfectly corresponds to the special position of the people of Israel in history. This people was chosen by God among all peoples to be the bearer of the great historical principles that were later to spread to all humanity. After the fall of man, sinfulness and corruption gained predominance over all humanity, became the fundamental driving principle of its entire life, penetrated all its institutions and relations, so that the healthy seeds of true development—placed at the creation as the foundation of humanity’s life and activity—were almost entirely choked off. A development of humanity that had taken a false direction naturally could not lead it to the goal of true development, but instead gradually drew it ever further away from that goal, constantly diminishing the sum of good and justice and, conversely, constantly increasing the sum of evil and injustice. Under such a state of affairs, the goal of world history would never have been realized. People of this orientation—in whom, by virtue of the corruption of natural powers and faculties, physical capacities had gained predominance over spiritual ones—gave themselves ever more fully to the current of the naturally sinful order, finding in it the best satisfaction of their corrupted strivings. The result of such development would have been the complete suppression of the noblest and most elevated powers of the human spirit, the unbounded dominion of brute force and merciless egoism, the complete perversion of human relations—in which, in place of justice, there would appear arbitrariness and the oppression of the weak by the strong—until at last humanity would have arrived at the extreme degree of depravity and the trampling of all human dignity, as was indeed partly the case among the ancient peoples, where, amid the complete perversion of religious, moral, and social concepts, even the laws contributed to further corruption and to the increase of injustice, serving as an instrument for the oppression of the weak and the poor. And yet the ultimate goal of world-historical development—reconciliation with God and the gradual restoration of the primordial state—had to be realized, if humanity was not to perish morally in the end. For the realization of this great goal, the people of Israel was chosen—a people who, even in their founding ancestors, were distinguished by the greatest capacity for preserving true concepts, the healthy seeds of true development, and the greatest moral energy, which gave them the ability to struggle against the universally prevailing evil, as can be seen from the history of Abraham, Isaac, Jacob, and the other founding fathers of the Hebrew people. Already with Abraham a covenant had been concluded (Gen. 17:7 and elsewhere) for the preservation of the true religion and of the foundations of true development in general, but there such a purpose had not yet found its full expression. That covenant received its full consecration and confirmation at the moment of the legislation. Here the solemn election of the people of Israel as the bearer of the great truths of world-historical development took place. “You shall be,” Jehovah said to the people of Israel, “my own possession among all peoples; you shall be to me a kingdom of priests and a holy people” (Exod. 19:5–6). This is the juridical definition of the position of the people of Israel in history. From this their calling becomes clear. They were to embody, in defiance of the universally prevailing principle of sinful, abnormal development, the norm of true development; to preserve within themselves the seeds of that development, to cultivate them, and to spread them as widely as possible in the surrounding world—to be, in the words of the prophet, “a light to the nations” (Isa. 42:6). Therefore all that was holy, just, and humane—which had no place in the pagan world—was to find in Israel its calling and realization. In defiance of the crude principles of the pagan world, which consisted in the predominance of physical over spiritual forces, the spiritual principle was here to prevail; unbounded egoism was to be limited by the recognition of the equal rights of the other person; injustice was to yield to the higher law of righteousness—and thus the entire structure of public and private life was to be given a direction in which the principles lying at its foundation could find the most unimpeded expression. The history of the people of Israel presents the dominion of such principles. But these principles were not created by the people themselves—they were given to the people in the legislation. Consequently, the people could fulfill their calling described above only by accepting and fulfilling the law, and by incarnating its principles in all forms of their life. This is the essence of the covenant—the union between God and the people of Israel.

In keeping with such a purpose of the covenant, the legislation, as the principal instrument of the covenant, presents a corresponding essence and content. In its inner character, the legislation is fully theocratic—and this not so much by reason of its origin as by reason of its purpose and essence. Biblical theocracy presents two aspects that must be distinguished in the course of investigation. One aspect—which scholars ordinarily take for the full expression of theocracy—consists in the fact that Jehovah stands in a special relationship with the people of Israel, is their king, and in accordance with this position “combines in himself all state functions,” acting directly or indirectly through his organs—specially chosen individuals—as lawgiver, judge, commander, and so forth. But this is only one aspect of theocracy—and, one might say, its external aspect. In this sense, theocracy is a general phenomenon for a certain period in the historical development of peoples (differing only in its degree of truth or falsehood), and therefore presents nothing special or particular to the chosen people. In relation to this people, the other aspect of theocracy is of particular significance—the internal and, one might say, philosophical aspect. It is defined by the already-noted special position of the people of Israel in world history. Jehovah chose them in order to make them the guardians of the principles of true and normal development that had found no place in the rest of humanity, which had wholly given itself over to the principles of naturally sinful development. These principles, having penetrated the consciousness and life of the chosen people, were according to the idea of theocracy to prepare the historical ground on which the great truths that were to bring humanity to the fulfillment of its calling could best develop and be preserved. Therefore Jehovah, through his covenant with the chosen people, withdrew them from the cycle of naturally sinful development, freed them from the influence of dark historical forces, and gave them the law of holiness—by fulfilling which the people could truly accomplish the world-historical mission laid upon them. This law of holiness in its foundation presents all the data confirming the understanding of the inner sense of biblical theocracy set forth above. Mosaic legislation in its general principles truly presents the norm of genuinely human development—the kind of development that alone could bring humanity to the realization of its calling—a norm to which the legislative wisdom of none of the sages of the ancient world ever rose. This thought is most clearly demonstrated by the remarkable phenomenon that even in the most recent times, legislative wisdom and political-legal science, in their forward development carried out on the independent ground of scholarly investigation, present in their finest results nothing other than an approximation to the principles of Mosaic legislation. The striking progressiveness of these sciences—which, by outward appearances, have developed truths previously unknown that illuminate the essence and consequently the norm of state and social relations—is in substance only the clarification and application to new given conditions of the ancient, Old Testament principles of Mosaic legislation. Here one is inevitably reminded of a parallel phenomenon in the natural sciences. However far these sciences may appear to have advanced in their development from the ancient, only just emerging and therefore naturally weak, infant natural science, however brilliant the discoveries they have made in the domain of nature—and yet all these discoveries are nothing other than the clarification and confirmation of Mosaic cosmogony, which in compressed, simple form presents the highest truth of natural-scientific knowledge. This fact is recognized and requires no proof. The same remarkable phenomenon obtains in relation to political and social knowledge, which likewise finds its highest truth in the principles of social-political organization according to the laws of Moses. All that is best, toward which the most recent sociological sciences aspire and which they consider their finest fruit in defining the norm of social relations—all of this was contained in the principles of Mosaic legislation and in the majority of cases was realized in practice in the political-social life of the Mosaic state. This view finds full confirmation in an assessment of the relationship of Mosaic law to the state of public and political life at the present time. “In Mosaic law,” says its profound student Saalschütz, “we encounter with astonishment many of the most important questions that agitate our time, threaten to shake the entire long-established structure of our political-social life, before which the most recent scholarship stands perplexed, and which yet in Mosaic law found their satisfactory resolution by the peaceful path of legislative wisdom. In this law there is much that is instructive for our own time as well, and we would long since have availed ourselves of its guidance, had we not, alongside Roman law—with its admittedly wonderfully majestic aims and structural elegance, but at the same time with its constraining formalism and its harsh family laws bearing the indelible mark of slavery that recognizes and tramples all dignity of the human person—had we not, alongside Roman law, studied with equal care the noble, simple characteristics of Mosaic legislation, which, as all who have penetrated more deeply into its content unanimously acknowledge, is distinguished by a truly elevated and free spirit.”

This spirit permeates and animates all forms of public life in the Mosaic state, from the form of the state itself down to the form of family relations. The same scholar groups and characterizes the fundamental principles of political-social life under Mosaic law as follows, with an eye to their relationship to the principles of this life at the present time:

In antiquity, among most peoples, the individual was absorbed by the state. Even the representatives of the highest development of the human spirit—the philosophers, such as Plato, for instance—could not rise to the point of valuing the individual in their own dignity, independently of their relation to the state, and therefore in their ideal societies they sacrificed the individual and the family to the state. In the Middle Ages, by contrast, the individual gained unlawful predominance over the state: each person, relying solely on their own arms, walked their own road with a knightly bold and independent spirit. Such a state of affairs is, from the standpoint of true sociology, abnormal: both the one and the other are unjustifiable extremes. True sociology finds the norm in such a combination of these extremes in which each individual belongs equally to themselves and to society; enjoying freedom, they harmonize it at the same time with the law and with the freedom of all; constituting a part of the whole, they are not absorbed by it but remain independent, and moreover find themselves in such conditions of life and activity which, while providing all the means for achieving personal goals, at the same time bring these personal goals into accord with the goals of the whole society, so that the satisfaction of the former is at the same time the satisfaction of the latter. The present age labors over the resolution of such a social problem, but the happy solution of it remains to this day only a pious wish (pia desideria) of the political and social sciences. And yet such a solution stands already ready-made in the political-social structure of the Mosaic state—though of course under the form proper to it in time, that of ancient patriarchal relations. Here the fundamental cell of social forms is the “community,” through which the entire people, by means of their leaders, found full expression of all their needs and requirements; each member of the community found within it full protection and security for their rights and freedom. With its firm, organic cohesion, the community did not absorb or suppress the personal independence of its individual members, as was the case in all ancient states; on the contrary, it served as a guarantee of that independence against the unlawful claims of certain individuals, thereby realizing the principal aim of Mosaic legislation—the greatest possible development of the sense of freedom among the people. Hence there arises that remarkable phenomenon, observed in the history of the people of Israel, that unknown individuals would suddenly appear at the head of the nation and become heroes of historical events. Here the prophets—those great actors in the history of the people of Israel—found protection for freedom of speech, and freely castigated the vices and crimes not only of ordinary people but even of kings. Here a capable person—whatever position they had previously held—could at a moment’s notice acquire historical significance; a simple farmer became the leader of a militia and freed the people from foreign oppression. These facts would be completely incomprehensible to us—it would be incomprehensible how a single person, even a woman, would suddenly stand at the head of the nation and receive universal recognition among the people—were we not acquainted with the structure of that living social organism in which all members stood in an organically normal relationship both to the whole and to one another. Of course, such patriarchal popular representation was more convenient in a small people than in large nations; but for our purposes, it is the idea of such representation that is of primary importance, not its application in modern states. In close connection with such a fundamental idea of the social order stand other institutions of the Mosaic state that constitute, even at the present time, an object of aspiration for political and social sciences. These include: universal military service, as an expression of the equal participation of all members of the state in its most important affairs; the absence of class distinctions and privileges, as an expression of the equality of all before the law and the state. The idea of equal rights in the Mosaic state found such broad application that even foreigners were not excluded from enjoying them on a par with members of the state. This political equality of rights found firm support in economic equality—in the equal distribution of material goods. The latter, together with other institutions aimed at preserving economic equality and preventing its disruption, is the most remarkable phenomenon in the general history of human societies; and in view of the fact that many legislators have striven in vain to establish it, it is of profound interest even when considered merely as an experiment in legislative wisdom. On the soil of this institution there was no place for the abnormal phenomenon of our time—the extremes of wealth and destitution; and the terrible question of our time—the elimination of the growth of pauperism, which threatens to shake and overthrow the entire social order—found there a happy resolution. In the social-family relations of the Mosaic state, too, the principle of the most recent sociology was realized—the equality of the sexes and the normalization of the relations between parents and children. The legal definition of the position of women deserves particular attention. Here she was not the rightless slave of a despotic husband, was not confined to harems, but was considered the fully entitled mistress of the house on a par with her husband, and was therefore as independent as he; she openly participated in the solemn assemblies of the people and even in political events—in general, she enjoyed a freedom unparalleled in the East, almost the kind that modern sociology considers normal for contemporary states. And a series of remarkable facts from Hebrew history shows how nobly and to what benefit to the state women exercised this freedom. Finally, Mosaic legislation is the only one in the East that does not know slavery in the proper sense—ancient and modern—of the word: slavery that degraded human dignity, denied the natural equality of persons, created out of human beings entire masses of some intermediate creatures between people and animals, and generally represented a glaring injustice, a complete trampling of the dignity and rights of the human person. The divine genius of the legislator was able to elevate this shameful phenomenon of slavery to the level of the normal, necessary service relations of public life, almost to the degree in which they exist today. All these—remarkable for their time—rights of individuals and classes of the people found firm support in universal legal education, which was achieved by the simplest of means, such as the public reading of the law at popular assemblies. Such broad legal education—by the standards of the time—made all members of the people not only capable of defending their rights, but also made possible the formation and existence of a purely popular court, a jury court in its simplest form. Mosaic legislation is therefore also, in the judicial sphere, the representative of truly humane justice. From deep antiquity until the last century, it presents the unique example of a court that knew neither torture nor generally cruel and degrading punishments. Complete impartiality and the strictest incorruptibility were the highest duty and distinction of this court—and here too, therefore, Mosaic legislation serves as the representative of a norm of eternal significance, one that has accordingly been adopted by modern sociology. In a word, all the principles of this legislation, in their general ideal expressions, are the principles of the normal development of social relations, and as such they have invariably preserved—and will preserve—their significance for the most recent sociology as well.

From the outline of the fundamental forms of Mosaic legislation presented above (a detailed examination of them will be given below), it clearly follows that the principles of Mosaic legislation—inasmuch as they coincide with the principles of the most recent sociology—truly represent the norm of genuinely human development, the kind of development humanity must follow if it is to realize its calling, and in this sense they are universal. These principles are still alive today and lie at the foundation of the most recent civilization, although the latter does not always make conscious use of them. The essence of the most recent cultural development consists precisely in its having absorbed the principles laid at the foundation of development by Mosaic legislation, in the form in which they were spiritualized by Christianity—a form that led them out of the narrow, one-sided application in the life of a single, closed people. Properly European (Greco-Roman) culture has significance only as a supplementary force, laying merely the material foundation for the most recent civilization; whereas everything above the material—everything in which the dominion of the spirit is expressed, as the principal driving force of true development—was all borrowed from the principles of Mosaic law, as is indicated, among other things, by the binding force of the Decalogue, recognized by all moral-legal codes of Europe. Such universality of the principles of Mosaic legislation—which proved to be in full harmony with the highest stage of religious worldview, Christianity, which definitively restored for all humanity the principles of true development—is most clearly demonstrated by the role those principles played, as noted above, in world history: the role of a norm amid a universally erring humanity, a norm that alone could lead humanity to the realization of its goal—the restoration of the lost primordial state. This constitutes also the philosophical side of the biblical theocracy that animates the legislation of Moses.

Such is Mosaic legislation in its ideal principles. In this respect it is universal. But these ideal principles were intended to be realized in the life of a single people which, in world history, beyond its general significance, has its own distinctive character setting it apart from all other peoples—a people with a unique history, unique local customs and manners, a people bearing the indelible stamp of temporal, local, and tribal conditions and peculiarities. It is therefore natural that even the ideal principles, as they were realized in the life of this one people, underwent modification in their application corresponding to the peculiarities of that people: remaining universal in idea, they took in practice the form of temporary, local, and exceptional laws. Hence Mosaic legislation, beyond the universal human aspect already considered, has another aspect in which it appears as a particular legislation having a conditional, local, and national significance.

Viewed from this latter aspect, it stands first of all in close relation to the condition of the Hebrew people at that moment in history when it found them. It was the moment of Israel’s transition from the state of a tribe to the state of a nation—when they definitively stepped onto the stage of world history, assumed definite tasks, and occupied a definite position. In the life of a people, as in the life of an individual, several stages of moral and physical maturation and development succeed one another. For Israel, the patriarchal period was the period of childhood, when the people were governed primarily by feelings and the force of natural kinship, supplemented by a few simple and fragmentary laws. The national period was the period of youth, in which the laws of kinship feeling yield to definite provisions of law—a system of precise statutes, necessary to control the vigorous and impulsive activity of youth. Fifty days of wandering through the silent wilderness alone with God could serve as a sufficient means of awakening in the people an awareness of the importance of the moment of life into which they were entering, so that they might consciously enter the period of national existence. Legislation with its strict legal forms is thus the sign and seal of the transition of the people of Israel to the state of national existence.

At the same time, the legislation of Moses stands in close relation to the entire past life of the people of Israel. Divided into periods though it is, the history of any people is nonetheless a single indivisible organism; for it, the various periods are only various states of one and the same organism. Therefore the preceding states necessarily condition the subsequent ones and serve as the foundation on which, and under the influence of which, the next moment of development is worked out. Hence no discontinuity in development is conceivable in the history of a people—nothing entirely new can appear that has no support or point of contact in the old and the past. Mosaic legislation presents no exception in this regard. Though new in its principles and form, it is not entirely new in its content, which it often borrows from the earlier, customary law that had been worked out in previous history. However simple the history of the people of Israel before the Sinaitic legislation may have been, it had nonetheless its own law—its own code worked out and confirmed by custom. History offers clear indications of this. Thus, long before Mosaic legislation, there appear in history references to definite punishments for murder, for adultery, to the existence of the law of levirate marriage, to the distinction between clean and unclean animals, and apparently to the observance of the Sabbath (Gen. 9:6; 38:8, 24; 8:20; Exod. 16:23; 27–29). All these are facts of customary law that later entered wholesale into Mosaic legislation, forming the historical soil on which the new legislation could more easily take root. The wise legislator could not overlook this ancient customary law, for only that legislative or state institution is durable which is laid on a firm historical foundation. The distinguishing feature of legislative genius consists precisely in carrying out transformative work on material that is already available but raw and unprocessed—in working out for it the foundational principles and animating it with a new and higher spirit. This is precisely the relationship in which Mosaic legislation stands to customary law. The legislator makes use of the long-established material of customary law, places it at the foundation of his legislative work, and on this foundation builds a wonderful new legislative edifice. In the course of our further study we shall frequently encounter legislative provisions that were either borrowed wholesale from customary law without modification, or with certain changes and limitations corresponding to the new higher principles of the legislation. Facts of customary law are often in such close connection with the new legislation that without them the latter would be completely incomprehensible, since it often serves merely as a clarification or supplement to those facts, and is expressed in a corresponding form that presupposes as known the fact of customary law which it serves to clarify or supplement.

In close connection with this relationship to ancient customary law and to the past historical life of the people of Israel in general—and in large measure as a consequence of that relationship in antiquity—Mosaic legislation is necessarily in close dependence on the ethnographic, historical, and other peculiarities of the people. This dependence is expressed in the adaptation of the legislation to these peculiarities, often at the expense of the purity and elevation of the law. Such dependence and adaptation to the peculiarities of the people is indicated by the well-known words of Jesus Christ concerning the Mosaic law of divorce (Matt. 19:7–8), which in the form given in Mosaic legislation does not correspond to the purpose and holiness of the marital union and to the fundamental principles of Mosaic legislation, but constitutes a direct concession to the character of the people, to the low level of their moral development—in a word, to their “hardness of heart.” The influence of these conditions on the legislation is so significant that in many cases it adapts itself to ancient customs rather than introducing new laws; and in general these conditions so determine the tone and character of the legislation itself that without reference to them the true sense and significance of one law or another would often remain incomprehensible. Thus the punishment for a son’s disobedience to his parents seems harsh (Deut. 21:18–21); but if we take into account the general force of parental authority in the period of the patriarchal state of the people, or in general during the early periods of national existence (as, for example, in Rome), then the Mosaic law represents an already significant step forward in the domain of humanity and justice, since it limits the arbitrariness of parental authority by transferring the matter to public court. The law of levirate marriage similarly appears to have existed in earlier times on a broader scale among Asian peoples, and in Mosaic legislation was more limited than sanctioned. The law of blood vengeance likewise represents an example of the reasonable limitation and weakening of an ancient barbaric custom, which had taken such deep root in the customs and manners of the people that the possibility of its complete abolition was not admitted. Equally remarkable is the phenomenon that the degree of elaboration and completeness of the legislative system in each of its parts corresponds to the period in which the people found themselves. Thus, the ceremonial part is distinguished by the greatest clarity, fullness, and completeness; the moral and judicial laws are precise and definite; even the civil laws, insofar as they relate to individual persons, are systematic and complete—all these laws have firm support in the past history of the people, and at this point required only ordering and more complete development and foundation. The state laws, by contrast, lack such fullness and consist only of general principles without their application to actual life. This too is understandable: these laws were entirely new for a people that had only just for the first time entered the period of national-state existence, and moreover were given at a time when the people did not yet constitute a state in which the laws could find practical application, but were only preparing to form a state. Therefore Mosaic constitutional law, defining the general principles of the future political life of the people, establishes and defines only the various organs of state power, almost without touching on their activities. But even here it partly recognizes already-existing authorities—such as the heads of tribes and families—and partly establishes new ones—judges, king, and prophet. Upon these lay the obligation to work out a political system for the people, making use of the guidance and direction provided by the general principles given by the legislator. From the clarification of such dependence and adaptation of the legislation to the historical development and character of the people—as well as to the physical conditions of the land—depends the true understanding of the essence of the legislation and the precise demarcation within it of what is temporary and local and what is universal, that is, what has significance for all times and all peoples.

Finally, Mosaic legislation, viewed from its ordinary historical standpoint, was not given all at once in the form in which it now appears in the Pentateuch. It took shape gradually and therefore has its own history of development. At Sinai, not the entire legislation was given, with all its detailed applications to practical life, but only the foundational principles of the legislation. These principles of the Sinaitic legislation are set out in the book of Exodus, chapters 20–31 (Exod. 20–31). The further development of the laws was carried out on the basis of these principles, in response to circumstances that emerged from historical events. Such are the provisions concerning the punishment of those who blaspheme the name of the Lord, given to the people on account of a specific incident (Lev. 24:10–16); the provisions concerning uncleanness from contact with corpses (Num. 9:6–12); the laws of inheritance, given on account of the specific case of the daughters of Zelophehad (Num. 27:1–11); and others. Hence the very order of the presentation of the laws in Moses is not systematic but historical: the laws are not arranged in strict order according to their internal content, but—with the exception of a few chapters—are scattered throughout the Pentateuch, ordinarily being attached to specific incidents that gave rise to the need for one law or another. Something resembling a systematic arrangement first appears in the book of Deuteronomy. This book, by its very purpose, was to serve as a full and systematic reproduction of the historically accumulated laws, abstracting them from specific incidents and combining them into a general code of law.

Such are the characteristic features of Mosaic legislation in its content and form.

As can be seen from the foregoing, Mosaic legislation in its foundation and by its purpose carries within it a deep theological-philosophical meaning—or rather, has a deeply theocratic character. It is the representative of the world idea of true human development, which was entrusted to the people of Israel for preservation and dissemination to all humanity, with the aim of leading humanity back to the calling it had forgotten. This is its general, principled aspect. From this aspect, Mosaic legislation is eternal and universal—it still lives in our concepts, acts in our life, and, as indicated above, still serves the same purpose it served in the ancient pre-Christian era: as the norm of true development, albeit in the form of that norm as illumined and purified by Christianity. From another aspect—viewed in its application to the life of a single people, as particular and local legislation—it was bound to time and place and now appears to us as an archaeological dead phenomenon. These two aspects of the legislation, together with the form of its presentation in the Pentateuch, determine the character of its investigation. The scholar must systematize the laws of a given section that are found in various places, bring them under the general theocratic principle of the legislation, and indicate the correspondence or lack of correspondence of each particular provision with the general principle. Such an order of investigation is called for by the interest of coherent presentation and by the most complete and clear possible understanding of each individual law.

The primary source for the investigation of Mosaic legislation is, of course, first and foremost those books of the Pentateuch that contain the exposition of the laws in a special sense—namely, the book of Exodus from chapter 20 onward, and the three remaining books of Moses. But these books alone would be insufficient for a complete exposition and clear understanding of the laws. We noted above that Mosaic legislation in many cases refers to ancient customary law, often presupposing it as known, and gives its own provisions only as a clarification or supplement to the provisions of ancient customary law. Therefore, for the clear understanding of such laws, it is necessary to know the meaning of the customary law that lies at their foundation. Hence the source for the investigation of the Mosaic laws can and must necessarily include the history preceding the legislation—which has preserved the facts expressing the spirit of ancient customary law—that is, the entire book of Genesis and the first half of the book of Exodus. Customary law in those matters for which Mosaic legislation provided no specific definitions naturally retained its force after the publication of the legislation, and made itself known in the subsequent historical life of the people. Therefore, for determining the legal status of such relations (and as we shall see below, they are sometimes very important—and their determination is often necessary for the precise understanding of one written law or another), one may draw on the books of later periods—that is, all the other books of biblical literature. Among these, the poetic and prophetic books hold special significance for this purpose. In the absence of a positive law regarding certain relations, one may find in them a portrayal of the ideal state of those relations, fully corresponding to the spirit of the legislation. In other cases too, for determining a given legal relation, not all the facts presented by history are important, but only those that bear the stamp of the ideal—because life is always below the law, and only those facts of life are closer to the law that express the ideal state. In this regard legal investigation differs from archaeological investigation: while for the latter all facts presented by history have significance, for the former only those that express the law—the ideal—are significant. Archaeological investigation depicts facts and states as they appear in history and in life; legal investigation, by contrast, depicts them as they ought to be. Such a distinction is of great importance in our subject, as it can keep the investigation within proper bounds appropriate to the subject.

An important aid in the study of the laws of Moses can be provided by Talmudic definitions on various legal questions. True, their definitions cannot always be trusted unconditionally, and cannot always be regarded as standing firmly on the ground of ancient Mosaic law, since it is certain that they reflect the influence of the various conditions of different times, places, and peoples under which they were compiled into a code. Nevertheless, the dismissive and entirely distrustful attitude toward them—as found, for example, in Michaelis—cannot be called well-founded. The Jewish nation is so attached to ancient tradition, so stubbornly preserves its national distinctiveness to this day, that there are no grounds for thinking that it ever departed significantly from the ancient legislation. Jews to this day consider the Talmud the summit of legislative wisdom and prefer it to all more recent and more refined and developed legal codes; there is therefore no reason to suppose that the compilers of the Talmud, living in comparatively ancient times, would have related differently to Mosaic legislation. They might have interpreted the law differently, might have failed to understand its elevated purpose and reduced it to the level of unthinking formalism (as the Pharisees did)—yet they might all the more firmly have preserved particular individual provisions bearing the stamp of ancient tradition. And it is in this respect that Talmudic law can serve as an aid in elucidating Mosaic law on the basis of tradition. Not having at hand the rabbinic legal compilations (Halakhot, Mishnah, Gemara, and Talmud), we will draw on their provisions at second hand, primarily from the works of Pastoret (Moyse considéré comme Législateur et Moraliste, 1788) and Saalschütz (Mosaisches Recht, 1846).

The scholarly treatment of Mosaic law began primarily in the last century. In 1788, Moses Mendelssohn published a translation of the Talmud into German, and thereby awakened interest in the study of Hebrew law in general. Around the same time, two attempts at scholarly treatment of Hebrew law appeared one after another, by Michaelis and Pastoret. The work of Michaelis, published in 1777 under the title “Mosaisches Recht,” represents the first chronological attempt at a scholarly, systematic treatment of Mosaic law. In his work the author brought together all his previous individual studies on various sections of Mosaic law (written primarily in Latin) and supplemented them with many new investigations, which together formed two large volumes divided into 6 parts and 307 paragraphs. The work is distinguished by lively, vigorous exposition, comprehensiveness of content, and in general by what one might call a philosophical character bearing the traces of Montesquieu’s philosophical-legal school. As regards the strictly scholarly aspect of the work, it of course no longer holds great significance for the present day—all the more so since the author rarely, or almost never, indicates the sources and aids that guided him in his investigations, and everywhere impresses upon his research the vivid stamp of personal reflections, which, given the then-weak development of Oriental philology and the generally insufficient elaboration of archaeological and historical data for the subject of investigation, could naturally often fail to coincide with the actual data of the law under study. Making use—often with excessive trust—of data from comparative jurisprudence to elucidate many aspects of Mosaic law, the author treats with unwarranted contempt one of the most important aids in the study of this law—namely, the rabbinic legal compilations—whereas these could often have kept the impulses of the author’s rationalizing thought within proper limits. A different character distinguishes the academic work of Pastoret, entitled “Moyse, considéré comme législateur et comme moraliste,” Paris, 1788, p. 599. This work is composed on the basis of exclusively ancient sources and aids, among which the first place is occupied by rabbinic legal compilations and studies. In this respect it stands in contrast to the work of Michaelis. As the latter often treated these aids with unwarranted contempt, so on the contrary Pastoret often treats them with unwarranted trust. Hence the work itself acquires a peculiar character: in it, Mosaic law is frequently overshadowed and suppressed by rabbinic law; Pastoret apparently does not distinguish the former from the latter and constantly conflates them, thereby failing to provide a clear picture of Mosaic law as such. But it holds great significance for the researcher through its rich citations, learned notes, and frequently cited documents of rabbinic law. In the present century, several works have appeared on the subject of Mosaic law. The most notable among them is the work of Saalschütz, “Mosaisches Recht mit Berücksichtigung des spätern Jüdischen,” Berlin, 1846. Distinguished by a deeply scholarly character, the work of Saalschütz is free from the defects and extremes of both the works noted above. Keeping constantly to the ground of the data of Mosaic law itself, the author elucidates them with data from history, comparative jurisprudence, and most of all with data from Talmudic law—which in his treatment, however, is not conflated with Mosaic law (as in Pastoret) but occupies a subordinate position, serving as a means to its elucidation, which is why the space for such data is allotted in the richly substantive scholarly notes. The work is distinguished by fullness, strict systematicity, and depth of thought and viewpoint. True, the author occasionally, unsatisfied with the accepted explanations of certain laws or expressions of Mosaic law, ventures in the interest of truth and scholarship into subtle, often clever and sometimes far-fetched explanations of his own—but this defect is not of great importance, and in any case is redeemed by the many important merits of the work. Among other works on the subject of Mosaic and in general Hebrew law, we may mention: Fassel, “Das Mosaisch-rabbinische Civilrecht,” Vienna, 1852; Mayer, “Die Rechte der Israeliten, Athener und Römer,” 2 vols., Leipzig, 1862–1864—in which the author presents in parallel the juridical institutions, civil and constitutional, of the Hebrews, Greeks, and Romans. Of studies on specific sections of Mosaic law, we may note the works of Hüllmann, “Staatsverfassung der Israeliten”; Mielziner, “Die Verhältnisse der Sclaven bei den alten Hebräern,” Copenhagen, 1859; and others. An important aid in the investigation of Mosaic law can also be provided by various biblical-archaeological studies, such as the archaeologies of Josephus, de Wette, Ewald, Keil, Horne, and others; many articles in the dictionaries of Winer (“Biblisches Realwörterbuch,” 1883), Herzog (“Realencyclopädie”), Smith (“A Dictionary of the Bible,” 1863), and others; and various commentaries on the biblical books, such as Knobel, “Kurzgefasstes exegetisches Handbuch zum Alten Testament,” Leipzig, 1857, and Keil and Delitzsch, “Biblischer Commentar über die Bücher Mose’s,” Leipzig, 1866. For elucidating the general biblical view of one or another subject of law, important significance attaches to the work of Oehler, “Theologie des Alten Testaments,” Tübingen, 1873; and for textual comparison, Walton’s “Biblia Polyglotta,” MDCLVII. Specific citations will be made in footnotes at the appropriate places. We should now also indicate the native works on the subject under investigation, but these are very few in number—and those that exist are partly translations and partly compilations, and with very few exceptions are entirely devoid of scholarly merit. On the specific subject of Mosaic law, native literature has no works whatsoever, with the exception of insignificant pamphlets of the type of Lebedev’s “On the Moral Merit of the Civil Laws of Moses,” Moscow, 1858. We will therefore not dwell on it, but will proceed to the examination of the individual laws, which by their subject matter fall into several groups. These groups are presented in the following order:

1) Laws on family relations.

2) Laws on social-economic relations.

3) Constitutional laws.

Judicial laws hold very important significance in Mosaic legislation; unfortunately, however, their exposition could not be included in this study. As a partial substitute for that exposition and to fill the gap, we offer a separate treatise under the following title:

This treatise, examining the judicial trial of Jesus Christ from a legal standpoint, not only gives a clear picture of the character of Jewish and Roman judicial procedure, thus filling the gap in our study, but also has its own intrinsic high interest—both in terms of its subject matter and its method of investigation.