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The "ordinances" were not laws in the usual sense of that word but the rights of those living within Israel. The Book of the Covenant (Exodus 20:22 to Exodus 23:33) was Israel’s "Bill of Rights."
"A selection of ’judgments’ is provided as a sample of the divine judgments which Moses gave the people. A total of forty-two ’judgments’ is given. [The 42 judgments appear in the following passages in Exodus: Exodus 21:2-36; Exodus 22:1-31; Exodus 23:1-7 a, Exodus 23:7 b, Exodus 23:8-12.] The number forty-two apparently stems from the fact that the Hebrew letters in the first word of the section, ’and these’ (w’lh), add up precisely to the number forty-two (7 x 6). (There may also be a desire to have seven laws for each of the six days of work [cf. Exodus 20:11]). This suggests that the laws in Exodus 21:1 to Exodus 23:12 are to be understood merely as a representative selection of the whole Mosaic Law. It is not an attempt at a complete listing of all the laws. The purpose of the selection was to provide a basis for teaching the nature of divine justice. By studying specific cases of the application of God’s will in concrete situations, the reader of the Pentateuch could learn the basic principles undergirding the covenant relationship. Whereas the ’ten words’ provided a general statement of the basic principles of justice which God demanded of his people, the examples selected here further demonstrated how those principles, or ideals, were to be applied to real life situations." [Note: Sailhamer, The Pentateuch . . ., p. 290.]
The fundamental rights of the Israelites 21:1-23:12
It is very important to note that various law codes already existed in the ancient Near East before the giving of the Mosaic Covenant. These included laws in the Akkadian civilization located in Mesopotamia in the twentieth century B.C. (e.g., the Laws of Esnunna). [Note: Pritchard, pp. 161-63.] There were also the laws in the Sumerian civilization in the nineteenth century (e.g., the Code of Lipit-Istar). [Note: Ibid., pp. 159-61.] Moreover laws in the Babylonian civilization that followed in the eighteenth century (e.g., the Code of Hammurabi) [Note: Ibid., pp. 163-80.] existed, as did others. People living in the Near East at the time of the Exodus (fifteenth century) knew these laws and lived by them more or less. The Mosaic Covenant presupposes this body of legal literature. It was not given as a comprehensive legal system to a people living without any laws. Rather it was a series of instructions God gave as Israel’s king for His people to govern their behavior in certain specific matters. This fact explains why the Torah (lit. instruction, i.e., the Law of Moses) does not contain fundamental instruction in many basic areas of law, such as monogamy. The instructions in the Law of Moses confirmed certain existing laws, cancelled other laws, and changed still others for the Israelites as the will of God for them. [Note: For further explanation, see Cassuto, pp. 257-64.]
Moses revealed the laws that follow analogically (i.e., on the basis of the association of ideas). Analogical thinking has been more characteristic of eastern cultures and rational thinking more typical of western cultures throughout history generally speaking.
The ancients practiced slavery widely in the Near East. These laws protected slaves in Israel better than the laws of other nations protected slaves in those countries. [Note: See Robert Gnuse, "Jubilee Legislation in Leviticus: Israel’s Vision of Social Reform," Biblical Theology Bulletin 15:2 (April 1985):44.]
We should read Exodus 21:4 with the following condition added at the end of the verse: unless he pays a ransom for them. This was possible as is clear from the instructions regarding the redemption of people that follow.
Why did God permit slavery at all? Slavery as a social institution becomes evil when others disregard the human rights of slaves. God protected the rights of slaves in Israel. Likewise the apostle Paul did not urge Philemon to set his slave Onesimus free but to treat him as a brother (Philemon 1:15-17). As amended by the Torah, slavery became indentured servitude in Israel for all practical purposes, similar to household servanthood in Victorian England. Mosaic law provided that male slaves in Israel should normally serve as slaves no more than a few years and then go free. In other nations, slaves often remained enslaved for life.
"We can then conclude that Exodus 21:2-4 owes nothing to non-Biblical law. Rather it is a statement of belief about the true nature of Israelite society: it should be made up of free men. Economic necessities may lead an Israelite to renounce his true heritage, but his destiny is not in the end to be subject to purely financial considerations. Exodus 21:2 is no ordinary humanitarian provision, but expresses Israel’s fundamental understanding of its true identity. No matter how far reality failed to match the ideal, that ideal must be reaffirmed in successive legislation. So, in gradually worsening economic conditions both Deuteronomy (Exodus 15:1-18) and the Holiness Code (Leviticus 25:39-43) reiterate it. It is the male Israelite’s right to release (Exodus 21:2-4) which explains why the laws of slavery (Exodus 21:2-11) head that legislation which sought to come to terms with Israel’s new found statehood with all its consequent economic problems under the united monarchy." [Note: Anthony Phillips, "The Laws of Slavery: Exodus 21:2-11," Journal for the Study of the Old Testament 30 (October 1984):62.]
Presumably female as well as male slaves could experience redemption from their condition at any time.
The Code of Hammurabi decreed that the master of a rebellious slave could cut off the ear of that slave. So the ear (Exodus 21:6) evidently marked the status of a slave in the ancient Near East (cf. Psalms 40:6).
Betrothal of a female 21:7-11
Females did not enjoy as much freedom as males in the ancient Near East or in Israel. They were subject to the fathers or husbands in authority over them as well as to God (cf. Ephesians 5:22-24; Colossians 3:18). Exodus 21:7-11 describe a girl whom her father sells as a servant (Heb. ’amah, Exodus 21:7) for marriage, not for slavery. [Note: Kaiser, "Exodus," p. 430.] In such a case the girl would become the servant of the father of her husband-to-be who would than give her to his son as his wife. She would remain in her prospective father-in-law’s household unless someone redeemed her before the consummation of her marriage. If for some reason her prospective father-in-law became displeased with her, he was to allow someone to redeem her (set her free by the payment of a price). Her redeemer could be herself or someone else (cf. Deuteronomy 24:1). Her master was not to sell her to some other person, a "foreign" person in that sense (Exodus 21:8). Such treatment was unfair to her because it violated her legitimate human rights. "Conjugal rights" (Exodus 21:10) here refers to her living quarters and other support provisions, not sexual intercourse. This passage is not discussing marriage as such (after physical consummation) as the NIV and AV imply.
The Torah upheld capital punishment for murder (Exodus 21:12), which God commanded of Noah (Genesis 9:6) and people in the Near East practiced from then on. It did not permit capital punishment in the case of manslaughter (unpremeditated murder, Exodus 21:13), which the Code of Hammurabi allowed. [Note: Code of Hammurabi, section 229, in Pritchard, pp. 163-80.]
In the ancient East whoever sought sanctuary in a sacred place was safe from punishment even if he or she had deliberately murdered someone. The Torah removed that protection in the case of murder. God regarded the sanctity of human life greater than the sanctity of a place (Exodus 21:4).
The Code of Hammurabi specified that the person who struck his father should have his hands cut off. [Note: Ibid., section 195.] The Torah took a stronger position requiring the death of the person who struck either parent. The reason seems to be that by doing so the striker did not honor his parents but revolted against God’s ordained authority over him or her (Exodus 21:15; cf. Exodus 20:12).
"In the first place age is not a factor in the determining of a delinquent in the ancient Near East: age is never mentioned in the [non-biblical] texts. A minor, for all intents and purposes, was one who was living in his or her parent’s house. There he or she has duties and responsibilities which place him directly under the authority of the parent. Responsibility for a minor’s behavior rested solely with the parent. Any anti-social act committed by the minor was considered also an offense against the parent who dealt with it accordingly. When proceedings are initiated against a minor, as we shall see, it is the parent, not the courts, who institutes the proceedings. . . .
"In ancient times no provision was made for a minor committing a criminal act, that is, there was no special protection extended to juveniles convicted in criminal cases: the penalty for both an adult and a minor was the same. This represents a striking difference from our judicial system whereby a minor is not held to be as criminally responsible for his conduct as an adult. In effect he is granted a certain amount of protection by the courts, and his sentence is not as severe as an adult’s would be in a similar case. It is curious that in the few examples we have of felonies committed by minors in the ancient Near East the opposite situation prevails. A minor receives a more severe sentence than an adult would in a comparable case. . . .
"At this point we should not get too exercised over whether or not these punishments were ever carried out. It is considered today most unlikely that these types of punishments, or talionic punishment in general, were ever put into practice in the ancient Near East. [Note: Encyclopaedia Judaica, s.v. "Cuneiform Law," by J. Finkelstein, 16:1505i.] What is important here is the severity accorded these offenses in the light of other offenses listed in the same legal corpus. It is most significant that in both cases the assault is against a parent. Assault against another person would subject the minor to a lesser penalty. In Mesopotamian law a minor striking someone other than his parent would not have his hand cut off; depending on his status he would be fined or flogged. [Note: Code of Hammurabi, sections 202-4.] Likewise, in ancient Israel he would be fined and not subject to the death penalty (Exodus 21:18-19). Thus we have a situation where striking a non-parent makes one subject to regular criminal law, but striking a parent makes one subject to a ’juvenile delinquent’ law which carries a more severe penalty." [Note: David Marcus, "Juvenile Delinquency in the Bible and the Ancient Near East," Journal of the Ancient Near Eastern Society of Columbia University 13 (1981):32-34.]
Kidnapping was also a capital offense (Exodus 21:16; Exodus 20:15; Genesis 37:28) as was cursing (dishonoring) one’s parents (Exodus 21:17; cf. Exodus 20:12). Exodus 21:15 deals with a criminal offense, but Exodus 21:17 describes a civil offense (cf. Leviticus 20:9; Deuteronomy 27:16; Proverbs 20:20; Proverbs 30:11). Marcus went on to distinguish this type of offense as follows.
"Turning now to non-criminal acts, civil or status offenses, we review the salient points of the modern definition of a juvenile delinquent as one who is incorrigible, ungovernable, or habitually disobedient. The operative word in most modern definitions is ’habitual.’ An isolated occurrence does not make a child delinquent. Note that the New York State definition speaks of the child as being ’habitually disobedient,’ and the California one terms the delinquent as one who ’habitually refuses to obey.’ We shall see that a number of ancient Near Eastern legal texts make this distinction as well. This is important because it enables us to distinguish what is clearly delinquency from what is only what we call ’generation gap’ disagreements. The ancients were well aware of this generation gap between parents and children." [Note: Ibid., pp. 35-36. For an evaluation of modern American penological philosophies in the light of the Mosaic Law, see Gary R. Williams, "The Purpose of Penology in the Mosaic Law and Today," Bibliotheca Sacra 133:529 (January-March 1976):42-55.]
All of these crimes worthy of death (in Exodus 21:12-17) were serious in God’s eyes. They either violated a basic right of a human being created in God’s image or were expressions of rebellion against God’s revealed authority in the home, the basic unit of society.
"Life, in essence, is the property of God; the possession of it is leased to human beings for a number of years. This lease can be extended or contracted in accordance with God’s will. (Cf. 1 Kings 21:27-29; 2 Kings 20:1-6; Job 1:12-19.) When a man arrogates to himself the right of ownership in the life of human beings and interferes with the right of enjoyment of life by taking it away-that is, killing it-he has violated one of the essential laws of God and therefore forfeits his own right to the possession of life." [Note: Davis, p. 221.]
The Torah made no distinction in the penalty an aggressor paid because of his intent (Exodus 21:18-28). The inferior Hammurabi Code did by permitting the assailant to pay less damage if he claimed no intent to cause injury. [Note: Code of Hammurabi, section 206.]
Bodily injuries 21:18-32
Moses cited five cases in this section, as was true in the preceding one (Exodus 21:12-17).
As other people, slaves also enjoyed protection from murderers (Exodus 21:20; cf. Exodus 21:12). However the slave owner likewise experienced protection from execution if his punishment of a slave was not the direct cause of the slave’s death. In this case the law regarded the loss of the slave as sufficient punishment of the master (Exodus 21:21).
Manslaughter of an unborn child carried a fine (Exodus 21:22). The reason seems to have rested on two assumptions. First, accidental killing is not as serious a crime as deliberate killing. Second, a fetus, though a human life, does not have the same status as a self-sufficient human being. [Note: See Sandra Lubarsky, "Judaism and the Justification of Abortion for Non-Medical Reasons," Journal of Reform Judaism 31:4 (Fall 1984):1-13, which contains helpful information on the rabbinic teaching on abortion, though the author’s conclusion, ". . . Judaism not only permits abortions for medical reasons, but also supports abortion for non-medical reasons" (p. 12), contradicts the spirit of Old Testament teaching.]
"The most significant thing about abortion legislation in Biblical law is that there was none. It was so unthinkable that an Israelite woman should desire an abortion that there was no need to mention this offense in the criminal code." [Note: Meredith Kline, "Lex Talionis and the Human Fetus," Simon Greenleaf Law Review 5 (1985-86):75. See also Bruce K. Waltke, "Reflections from the Old Testament on Abortion," Journal of the Evangelical Theological Society 19:1 (Winter 1976):3-13; and Robert N. Congdon, "Exodus 21:22-25 and the Abortion Debate," Bibliotheca Sacra 146:582 (April-June 1989):132-47.]
Pro-abortion advocates frequently appeal to Exodus 21:22 to support their claim that a fetus is not a person and, therefore, abortion is not murder.
"In other words, if you cause the death of the fetus, you merely pay a fine; if you cause the death of the woman, you lose your own life. Thus the Bible clearly shows that a fetus is not considered a person. If the fetus were considered to be a person, then the penalty for killing it would be the same as for killing the woman-death. Abortion, then, is not murder." [Note: Graham Spurgeon, "Is Abortion Murder?" in The Religious Case for Abortion, p. 16. For the same view, see also Shalom Paul, Studies in the Book of the Covenant in the Light of Cuneiform and Biblical Law, p. 71; Lloyd Kalland, "Fetal Life," Eternity, February 1971, p. 24; and Dolores E. Dunnett, "Evangelicals and Abortion," Journal of the Evangelical Theological Society 33:2 (June 1990):217.]
However other Scriptures present the fetus as a person, a real human being (Job 10:8-12; Job 15:14; Psalms 51:5; Psalms 58:3; Psalms 139:13-16; Ecclesiastes 11:5; Jeremiah 1:5; Galatians 1:15). This was the prevailing opinion in the ancient Near East as well. [Note: See the excellent discussion by Russell Fuller, "Exodus 21:22-23: The Miscarriage Interpretation and the Personhood of the Fetus," Journal of the Evangelical Theological Society 37:2 (June 1992):169-84. Fuller also evaluated and rejected the popular evangelical view that this verse does not refer to a miscarriage but to a premature birth.]
In contrast to other ancient Near Eastern law codes, the Torah made no differentiation on the basis of the woman’s social class. It treated all equally. Also only the man who caused the injury was liable, not other members of his family who could suffer punishment for his offense and often did in other ancient Near Eastern societies. Principles explained elsewhere in the Torah determined the penalty the guilty party had to pay. [Note: See Stanley Isser, "Two Traditions: The Law of Exodus 21:22-23 Revisited," Catholic Biblical Quarterly 52:1 (January 1990):30-45, for some ancient abortion laws and the views of Jewish rabbis and translators on this passage.]
God intended the "eye for eye" provision to limit punishment rather than giving free reign to it. The law of retaliation (Latin lex talionis) became common in the ancient Near East. It sought to control the tendency of someone who had only suffered a minor injury to take major revenge. For example, a man might kill the person who beat up his brother (cf. Genesis 4:23). God forbade such excessive vengeance among His people and limited them so that they should only exact equal payment for offenses committed against them and no more.
"This law of the talion, for a long time thought to be a more primitive kind of penalty, the reflection of a barbaric law form, has been shown by more recent comparative studies to be a later development, designed to remedy the inevitable abuses made possible by monetary payment for physical injury." [Note: Durham, p. 324.]
"According to Num. xxxv 31 it is only from a willful murderer that it is forbidden to accept ransom [payment in place of punishment]; this implies that in all other instances the taking of a ransom is permitted. . . .
"This being so, the meaning here in our paragraph of the expression life for life [Exodus 21:23] is that the one who hurts the woman accidentally shall be obliged to pay her husband the value of her life if she dies, and of her children if they die." [Note: Cassuto, p. 277.]
In contrast to Exodus 21:27, the Code of Hammurabi prescribed that in such a case the offender had to pay the slave’s master half the price of the slave. [Note: Code of Hammurabi, section 199.] If a master blinded his own slave, this code required no penalty. The Torah shows greater concern for the slave. This law would have discouraged masters from physically abusing their slaves.
The Hammurabi Code specified the death of the son of the owner of the ox if the ox killed the son of another man (Exodus 21:31). [Note: Ibid., section 230.] The Torah required the owner’s life or a ransom (Exodus 21:30). Note, too, that Exodus 21:31-32 value the lives of male and female slaves the same. The value of an adult slave under the Torah was 30 shekels of silver (cf. Matthew 26:15). Under the Code of Hammurabi it was 1/3 of a mina of silver (about 17 shekels). [Note: Ibid., section 252.] The ox also died by stoning. In this way God taught His people that they should view even slaves as created in His image (cf. Genesis 9:5). The goring ox (Exodus 21:28-32) is the typical example of death caused by cattle or domestic animals.
"The fate of the ox gives clear evidence of the theological principle of the subordination of the animal world to human sovereignty. That the fatal goring of one ox by another required only compensation shows the relative insignificance of the animal-to-animal relationship (Exodus 21:35-36)." [Note: Merrill, "A Theology . . .," p. 43.]
Property damage 21:33-22:15
The pit represents a typical case of damage caused by an inanimate object or natural phenomenon. These specific cases doubtless served as precedents for other similar cases.
The law concerning a cattle fight is the same as one in the Laws of Esnunna, a twentieth century B.C. Akkadian law code. [Note: Laws of Esnunna, section 53.] However the Torah differentiated between an ox that gored habitually and one that did not in the case of one ox goring another. Thus the Torah showed higher regard for the rights and responsibilities of individuals.
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Constable, Thomas. DD. "Commentary on Exodus 21". "Dr. Constable's Expository Notes". https://studylight.org/
the Week of Proper 21 / Ordinary 26