Apart from addendums to the law of Moses covered above, there are many outright differences in the way the law of Moses is or isn’t applied throughout the history of Israel. In fact, there are so many that we’ll focus on only a few. These are intended as practice for readers to find more scattered all throughout the Bible.
Were the Priests the Only Ones Who Could Perform Sacrifice?
About four centuries after the ostensible time of Moses,[1] one of King Saul’s greatest sins and reasons for being removed from office was that he took on himself a duty that was reserved for the descendants of Aaron, that of offering sacrifice. Yet we see David, the king after YHVH’s own heart, not only offering sacrifices, but letting his sons do so just like Samuel’s sons had done.[2] And all this in the same period as the great prophet Samuel who condemned Saul. Samuel also anointed David. David may have also flagrantly violated another command of the Torah: that no descendent of a Moabite could “enter the assembly of YHVH”, even to the tenth generation,[3] yet David’s great-grandmother was a Moabitess. I say “may” because maybe the ancients had a way of interpreting this law in which it would not have applied to David, such as that descendance was established through the male line. There is actually much evidence to support this. One case in point is one possible understanding of Acts 16:3, that Timothy didn’t have to be circumcised (though he was) because his father was a Greek, though his mother was Jewish. This of course is at odds with the matrilineal descent established by the Mishnah around the 2nd century CE, so we’re not sure when this shift happened.[4] But the late 1st century gospels also traced Jesus’ line through male ancestors, although a few females from prominent biblical stories were mentioned.
When Israel Forgot the Law
It’s glaringly obvious that the people at various times ignored the Torah’s law, for there were even major periods during which the Temple was profaned with pagan worship, without the priests of YHVH officiating or offering those all-important sacrifices of the Torah. However, there are actually instances of the prophetic voices of the Tanakh ignoring, in a way, the Torah’s law. For instance, we see in Nehemiah’s reforms a different application of the Sabbath law than in the Torah. It is hard enough to imagine the people surrounding Jerusalem so estranged from the Law that they as a society were flagrantly violating the Sabbath, but what is perhaps more surprising is the way he dealt with it. Nehemiah did not arrest them, but threatened them with arrest. His only preventative measure against their violating the Sabbath was to shut the gates so that the market could not be set up. This is in stark contrast to what we are told happened when the Sabbath law was given by Moses: a man was found picking up sticks, so Moses commanded that they stone him to death. One might argue that Nehemiah, as governor subject to the Persian empire, did not have authority to have these merchants stoned, much as the Jews would later not have the power to execute Jesus, but would need to appeal to the Romans to do it. But we read that Ezra (ostensibly a priest concurrent with Nehemiah’s governorship) had been given authority to appoint judges who did have the power to exercise the death penalty.[5] A more convincing argument would be that Nehemiah was unable to execute so many people because there would simply be too much resistance from the people. And even in the Torah, when sin was rampant among the people, there might be a purging, but all of the sinners were not always killed according to the law, or Israel would have in fact been totally wiped out. All this and more sound like great reasons that Nehemiah couldn’t or wouldn’t execute these violators of the Sabbath, but I just want to focus on one point here: the fact that he didn’t was itself a “passing over” of the Law, a theme we will come back to many times. Some would call it a violation, but I believe the biblical writers are up to something with this motif, as we’ll see.
We should make one more comment about the incident of Jeremiah “enforcing” the Sabbath. It is the first time we get any sort of definition regarding what “work” means, besides picking up sticks, since the Torah; in Jeremiah we get the added detail of “bearing burden”. Later rabbinic writers will really run with this, and add all sorts of rules around this concept.
New Marriage Laws?
There is one major difference between the Torah and later Prophetic messages that is particularly worthwhile to exam, so we will consider it at a little more length. This topic regards the commandments against the Israelites mixing with other peoples. There were in fact very strict prohibitions against mixing with the nations of Canaan in the law of Moses, because doing so would lead to idolatry. In fact, seven nations are explicitly named.[6] However, if one were to “harmonize” the Torah, one would find that this was not a command to avoid all foreign intermarriage, and certainly not living among other peoples. By Exodus’ own account, in addition to Israel, there was a mixed multitude that went up with Israel at the very birth of the nation under the guidance of Moses.[7] Many of the laws of the Torah both applied to as well as protected the sojourners who would be found among them, so foreigners were to be respected, not shunned.[8] And Moses himself was married to a Cushite, an African people; when Miriam and Aaron speak against this union, Miriam is struck by YHVH with leprosy.[9] I’ve seen this passage interpreted by moderns so many times as YHVH speaking against racism, but it would appear that the original author of this passage had a quite different main point. Aaron and Miriam’s challenge appears to be to Moses’ exclusive authority (vv. 2, 6, 7, and they were not entirely wrong, for they were indeed portrayed as prophets). Besides, it would be odd to interpret this passage’s point to be anti-racism, couched as it is in documents that so clearly show YHVH’s support for the utter annihilation of these listed people groups, and the option of enslavement for all others.[10] (We’ll save further discussion on genocide and slavery for later). As we’ve seen, Israelite men were allowed to take virgins in battle from nations not on the “restricted” list, and procreate with them. Therefore, intermarriage with the nations not on the list was not only tolerated, but explicitly permitted.
Yes, the Torah as a whole is very much not against mixing with the non-Canaanite peoples, and against mixing with the Canaanites, but is idolatry the main reason as stated? The earlier stories of Genesis, which are indisputably often etiological[11] in nature, show two of the fathers of Israel, Isaac and Jacob, receiving wives from Abraham’s relations in Haran. What was the reasons for importing them? Did they just like marrying cousins? Was it because their folks back in Haran weren’t idolators? No, for they were idolators. And Jacob is only said to have purged the idols from his family and servants after leaving Haran.[12] Isaac and Rebekah were displeased when Esau married Canaanite women because they were Canaanite![13] There is no such displeasure mentioned over Joseph, the chosen redeemer of all the world,[14] marrying an Egyptian woman. Such lessons couched in the stories of their founding fathers would become central to the legal fabric of Israel. The story of Ruth (which isn’t in the Torah) is key to the narrative of the divine establishment of the eternal Davidic dynasty and its very nature, yet she was a Moabitess. Rahab herself was in one of the first cities devoted to destruction, and yet she too was inserted into the Davidic line, despite being a whore! I plan to explain later the significance of these stories for the nation of Israel hundreds of years later. Yes, the idolatry of the Canaanite nations was one of their evils for which YHVH wanted them destroyed, but it was not their only sin any more than it was for the bringing of Noah’s Flood. For all the other nations were also all idolatrous! It was perhaps said best (implicitly) in the account of Abraham: the later genocide of the Canaanites was because their iniquity had reached its fill.[15] And since we’re on the topic of the law not being applied as given, it should be noted that the Canaanites were never fully wiped out as required, not by a longshot. Were the Canaanites more idolatrous than the other nations? Is that even a thing, like being more pregnant? Maybe it is, for the Israelites themselves were quite idolatrous, for which they were explicitly punished on multiple occasions. And yet there is no explicit prohibition against faithful Israelites giving their children in marriage to unfaithful Israelites, interestingly enough.
Yet by the time of the second Exodus from foreign bondage (6th century BCE), this time from Babylon and nearly a millennium after Moses, things had greatly changed. How was one even to identify some of the people groups on the original lists after so much time had passed? To draw a relatable modern analogy, imagine if a modern prophet arose in England who prohibited intermarriage with Norsemen, Jutes, or Picts; or from the kingdoms of Northumbria or Strathclyde; this obviously would not be workable because these are no longer distinct people groups or kingdoms. When Israel returned from Babylon, this is exactly what we see. The peoples they found occupying the land are an amalgam of a remnant of Israel and of both native peoples and those who were imported as far back as the Assyrian conquests of the 8th century.[16] Fast forward another few hundred years to the New Testament writers and there is just one main non-Jewish people group focused on living in the general area that was Israel, the Samaritans, who actually have much in common with the Jews, including building their own copy of the Temple for their very own YHVH worship. Yet they are perhaps even more despised than the idolatrous Canaanites had been a millennium and a half before.
Nor was the Mosaic law’s prohibition against marrying these peoples the only law affected by time. When they were released from Babylon, they were no longer entering the land to conquer it, for they were not even free from a pagan empire. What happened to God’s command to kill all the inhabitants without exception? It was apparently no longer in effect. Nor were they to conquer the land. What happened to the promise? What did the prophets say? “Let’s focus on building Jerusalem and the Temple.” There was of course a tremendous new prophetic movement that came out of this period, called apocalypticism, which would find its way into much of the New Testament. But for now, just note how much had changed in both the prophetic message and law.
So what did prophets like Ezra do in this crucial second Temple period, when they were desperate to reestablish their national and religious identity as distinct from the nations, an identity which, as we’ll see, went on to shape the whole world? How were they to bring an entire nation back to following Torah-based Temple worship that had been impossible to follow for an entire generation while they were in captivity? As we’ll see in later chapters, some scholars argue that this is actually when much of the arranging of the Torah was first done, a process begun by king Hezekiah/Josiah over a century before. But let’s just focus on what the Bible writers tell us for the moment. One of the ways they “interpreted” Moses in the 6th and 5th centuries BCE was to forbid intermarriage with foreign women. The original list of people groups from the Torah is given, yet more are added to it, including the Egyptians![17] And, they don’t just forbid such marriage. They also demand that all men who have foreign wives divorce them. But they didn’t even stop there. I’ve seen modern preachers use this incident to argue that people cannot stay in an “unscriptural” marriage (e.g., a second marriage, without the first divorce being for “the right reason”), but never have I seen them argue that a man should put away not only his wife, but his children! Yet that is exactly what the prophets of Ezra’s day commanded the people to do. And just to emphasize, yet again, the difference between the letter of the Mosaic law and this incident so many centuries later, under the Mosaic law they were not commanded to separate from a Canaanite spouse or child: they were commanded to kill them.[18]
Interestingly, the command to separate from the nations would take another particular twist by the time of Christ. We see the apostle Peter stating that it was unlawful for a Jew to even go into the home of a Gentile.[19] Ephesians 2:14 even speaks of a dividing wall of hostility between Jew and Gentile. Nowhere is such a command explicitly stated in the law of Moses, or even the more radically separatist prophetic books of Ezra or Nehemiah. On the contrary, Jesus had brazenly ignored such practices (e.g., Luke 7:2). Was Peter inferring an implied command? It would not be the only inference, as we we’ll see when we get to ancient methods of biblical interpretation. Was he referencing the interpretative writings that would become the Talmud? This was certainly not the only time that New Testament writers appeared to be citing sources as authoritative which are not found in modern Hebrew Bibles, as we covered in previous chapters. I’ve seen the argument that Peter was merely saying that such a practice was a well-known taboo among the Jews, not “unlawful” in the sense of God’s own law; Strong’s (111) does in fact define the Greek word used as “not acceptable based on the prevailing custom or ordinary practice.” However, I would make the argument that it sure does seem that Peter is in agreement with the practice by the way he phrases it: “you yourselves know how taboo/unlawful it is….” I’ve seen it argued that Peter was himself mistaken about the nature of the law, which therefore “provoked” Luke’s account (i.e., the book of Acts) to pass the mantle from Peter to Paul.[20] However, Luke’s very narrative regarding the vision Peter received is an obvious reference to a change in the law: Peter saw animals that were in fact unclean, yet God revealed to him that he was changing that. Not eating with Gentiles was one way Jews kept themselves ritually clean, and this was therefore part of the change as well.
Fasting
Fasting appears to be a major part of the religious practice of Israel, even as early as Judges 20, and is still so by the time Jesus came along; Jesus even explains how to do it correctly.[21] Yet interestingly, there is only one feast day in the Torah that is traditionally held to require fasting, that of the Day of Atonement in Leviticus 23. However, the word “fast” is not actually used: rather there’s a reference to afflicting oneself. Affliction, like sacrifice, was something that God was hoped to heed, whether self-inflicted or not.[22] To afflict oneself, while it seems it could include fasting, is less specific. In fact, it is used for the weekly Sabbath as well,[23] a time when they were explicitly allowed to eat,[24] so it didn’t necessarily always include fasting! In other words, something so fundamental to Israel’s religious practices, fasting, is not commanded by the law of Moses at all.
Other Law Systems?
One question that arises when we look at the Mosaic law is how God dealt with the nations before and after Sinai.
Before Moses, there’s what appears to be a universal law given after the Flood, but which is very short.[25] And Genesis also mentions Melchizedek, a priest of Yahweh, at Salem in the time of Abraham, which is surely no accident of the narrator, as this would later be called Jerusalem, and become God’s dwelling place. Did YHVH have other priesthoods besides this one, at other sites? What about Moses’ father-in-law, priest of Midian? God also spoke directly to people in Genesis, even people who were idolaters. When did that cease? Or did it continue into the time of Moses? Had God been speaking to other nations all during the time of the Mosaic law until the end of the first century BCE, when we see the star-gazing magi show up in Judea to see the king of the Jews born? And what in the world did Jonah preach when he went to the Gentile city of Nineveh? He told them to repent, but to what law? We’re told that the Mosaic law was not for the other nations. Many other prophets such as Isaiah and Jeremiah had oracles specifically for the nations. Typically, their sin was injustice, without lengthy elaboration as in the law of Moses. Did the Platonists, Paul, and the trials of Nuremberg[26] have a point, that there was unwritten law that people could be held accountable for? Or did YHVH provide written laws to other nations? These are questions that the Bible does not attempt to answer. And when you compare the laws of the ancient nations to those of the Bible, sometimes you think “it doesn’t seem like those laws came from YHVH”, but then you read other laws and actions of YHVH in the Hebrew Bible, and you think “okay, that could have been the same God….”
In fact, the wording of some of the ancient laws suggest that some of the biblical authors at the very least sometimes shared the same source as earlier law codes, as in the case of the laws regarding goring oxen in Exodus 21,[27] or the famous eye-for-an-eye law. Recall that the earliest date for Moses, if the Bible’s chronology is to be taken at face value, is the 15th century BCE.
| Exodus 21:28-32; 35-36 “When an ox gores a man or a woman to death, the ox shall be stoned, and its flesh shall not be eaten, but the owner of the ox shall not be punished. But if the ox has been in the habit of goring in the past, and its owner has been warned but has not guarded it, and it kills a man or a woman, the ox shall be stoned, and its owner also shall be put to death. If a ransom is laid on him, then he shall give for the redemption of his life whatever is imposed on him. If it gores a male or female minor, he shall be dealt with according to this same rule. If the ox gores a slave, male or female, the owner shall give to their master thirty shekels of silver, and the ox shall be stoned…. “When one man’s ox injures another’s, so that it dies, then they shall sell the live ox and divide its price, and the dead animal also they shall share. Or if it is known that the ox has been accustomed to gore in the past, and its owner has not guarded it, he shall restore ox for ox, and the dead animal shall be his. | Laws of Eshnunna (ca. 1930 BCE) §53-54 If an ox gored and killed an ox, the price of the live ox and the carcass of the dead ox both ox owners shall divide. If an ox was a gorer and the authorities have had it made known to its owner, but he did not set his ox straight, and the ox gored a man and killed him, the owner of the ox shall weigh and pay 2/3 mina of silver.[28] Laws of Hammurabi (ca. 1750) §250-252 If a bull passing through the street gored a man and caused his death, there can be no suit against the owner. If an ox be a goring ox, and they informed him that it is a gorer, yet he did not blunt its horns nor shut up the ox, and that bull gored a free-born man and caused his death, the owner shall pay half a mina of silver. If it be a man’s slave, he must pay a third of a mina. |
| Leviticus 24:19-21 Anyone who injures their neighbor is to be injured in the same manner: fracture for fracture, eye for eye, tooth for tooth. The one who has inflicted the injury must suffer the same penalty. | Laws of Hammurabi (ca. 1750) §196 If a man destroy the eye of another man, they shall destroy his eye. |
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[1] In a later book I hope to cover why this is actually a minority view of Moses’ place in the Bible timeline. Popular belief today is that Moses lived in the 13th century, not the 15th.
[2] 2 Samuel 8:18
[3] Deuteronomy 23:3
[4] Today, Orthodox Judaism, Conservative Judaism, and Reformed Judaism all use matrilinear descent, and reject patrilinear. There are only a few groups who use patrilinear, such as Karait Judaism.
[5] Ezra 7:25, 26
[6] Deuteronomy 7; 20:17-18
[7] Exodus 12:38
[8] Exodus 22:21; 23:9; Leviticus 19:33; Deuteronomy 10:18-19. There was however the distinction of the requirement to freeing of Hebrew slaves, and not to charge a fellow Hebrew interest, but not the foreigner (Deuteronomy 15:3, 12), but this is a preference to the Israelites, not against the foreigner per se.
[9] Numbers 12
[10] Deuteronomy 20:14-18
[11] Serving to explain the origin of something. For example, we’re told the story of the birth of Amon and Moab in Genesis 19, thus explaining the source of the nations that lived near Israel, but with a much less auspicious start than Israel. The story of Adam and Eve gives us the origin of menstruation, painful child birth, and possibly agriculture.
[12] Genesis 31:19-35; 35:2-4
[13] Genesis 28:1-8
[14] Genesis 41:57; we’ll save for later the discussion of how this was a central motif of the Torah.
[15] Genesis 15:16
[16] 2 Kings 17:24; Ezra 4:2, 10; Nehemiah 4:7
[17] Ezra 9:1-2
[18] This is a great place to throw incendiaries into the homosexuality debate, where some have accused believers of hating gays. Like the Canaanites, God also commanded homosexuals to be executed. If you don’t think that affects modern society, I used to work in a law library, where I noted that the death penalty was still on the Georgia law books for “homosexual-style” sex till around the year 2005, when it was finally removed. Of course, it was not being enforced, as I believe it had been declared as unconstitutional, but it was still there! Before it was removed, what legislator wanted to make the motion to repeal that one, and risk being criticized for being “pro-gay”? And ironically, we are so wrapped up with having to spell out every essential letter of a law that the law could have been broken by a heterosexual couple, as it was defined by sexual acts, not the gender of those performing them.
[19] Acts 10:28; In Galatians 2, Paul rebukes Peter for not eating with Gentiles, even those who were his brothers in Christ.
[20] “Unlawful for a Jew? Acts 10:28 and the Lukan View of Jewish-Gentile Relations”, Nicholas J. Schaser, Biblical Theology Bulletin, Volume 48, (4).
[21] E.g., Matthew 6:16
[22] E.g., Genesis 16:11
[23] Leviticus 16:29
[24] Exodus 16:23, 25
[25] Genesis 9:1-17
[26] Held from 1945 to 1946 after the end of World War II, at which people were even executed for crimes that would not have been crimes under their own government’s orders to commit them.
[27] “Reading Biblical Law”, The Jewish Study Bible, p. 2206.
[28] The Laws of Eshnunna, by Reuven Yaron, ch. 2.