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BRIA 16 4 a The Hebrews and the Foundation of Western Law

CONSTITUTIONAL RIGHTS FOUNDATION
Bill of Right in Action
Fall 2000 (16:4)

Innovations in Law

BRIA 16:4 Home | The Hebrews and the Foundations of Democracy | The Declaration of Independence and Natural Rights | Animal Rights  

The Hebrews and the Foundation of Western Law

The Ten Commandments and many other elements of Hebrew law provided a major source for the development of western legal systems and democracy.

Three thousand years ago, the ancient Hebrew people lived in the Near East in an area called Canaan. This ancient people developed the idea of monotheism, the belief in one god. They believed that their god gave them laws to regulate their society, their religious practices, and their relationships with other people.

Conquered by the neo-Babylonians and later by the Romans, the Hebrews eventually became a scattered people, living in many countries under different legal systems. But they continued to develop their own law and tried to follow it even in foreign lands. Their law was based on the Ten Commandments and other sacred writings, which today we find in the Hebrew Bible. In developing their law, they sometimes borrowed legal concepts from other civilizations as well as passing on their own ideas. The Jewish law that developed influenced Roman law, English law, and our own Declaration of Independence and Constitution.

Development of Jewish Law

According to Hebrew teachings, a man named Moses led the Jews out of slavery in Egypt around 1250 B.C. and received the Ten Commandments f rom God. The Hebrews began writing down the commandments and other legal principles. By the sixth century B.C., they were contained in the Torah and eventually became the first five books of the Bible. The written Torah (“teaching”) provided the ancient Hebrew people with a code of religious and moral laws.

In A.D. 70, after the Romans crushed a Hebrew revolt and destroyed the holy temple in Jerusalem. Faced with religious persecution, many Jews began to leave their homeland, called Palestine by the Romans. Known as Jews, for one region of their homeland called Judea, these people migrated throughout the Middle East, Europe, and other parts of the world.

Some Jewish religious scholars stayed in Palestine while another group of scholars resided in Babylon (in present-day Iraq). For several centuries, scholars in these two centers of Jewish thought debated and interpreted Jewish law. The vast literature that resulted from this effort is called the Talmud. The Talmud mainly focused on how Jewish laws should be applied to everyday life.

Starting as early as the second century A.D., Jewish scholars attempted to compile a code of laws from the Torah and other sources, which would assemble all Jewish law in one place. One famous Jewish legal scholar, Moses Maimonides, sought to integrate all Jewish scholarship into one code, which he completed in 1187. Several centuries later in 1563, Joseph Caro incorporated the work of Maimonides and other great Jewish scholars into his own code. This has become the main authority on Jewish law up to this day.

Over time, Jewish scholars have disagreed about nearly every point of the law. Today, three main divisions exist within Judaism. Orthodox Jews believe that the laws of the Torah and Talmud written centuries ago must still be strictly observed. Conservative Jews follow the old laws, but also see them as open to interpretation. Reform Jews view the traditional Jewish religious and moral laws as guides to life, but not binding in every detail.

Equality

The Torah teaches that God created Adam, the first human, as the father of all peoples. Thus, all humans are born equal and should be treated equally by the law. This is today recognized as a major principle of law.

Although the idea of equality before the law begins with the Torah, the Hebrews did not at first recognize the full meaning of this principle. Like other Middle Eastern peoples in ancient times, the Hebrews did not treat women as the legal equals of men. For example, women were usually not permitted to appear as witnesses in court. Nevertheless, Jewish law still identified many women’s rights and protections.

Like other peoples of the time, the Hebrews also permitted slavery. In many cases, persons bound themselves into slavery to pay debts. Others were thieves ordered by the court into slavery if they could not otherwise pay restitution to their victims. But masters had to release their slaves after six years. They also had to give them a gift to help them start a new life. Jewish law placed so many restrictions on slavery that it had nearly disappeared by the Middle Ages.

The Rule of Law

The Torah does not recognize the idea of kings ruling by divine right. According to tradition, the Hebrew people made Saul their first king in 1030 B.C., when enemy nations threatened their survival. But Saul and the other Hebrew kings that followed him were never considered to be gods or high priests with the power to interpret God’s will.

Hebrew kings, like everyone else, had to obey the Ten Commandments and the other laws of the Torah. The written Torah, not the whims of kings, was considered the law of the land.

Majority Rule and Democracy

The Hebrew concept of majority rule comes from the Torah’s command to “follow the multitude.” The majority decided disputes among scholars on the meaning of God’s laws, the court decisions of judges, and the local acts of Jewish communities.

Since Jews lived under the rule of foreign nations after A.D. 70, they practiced only limited forms of self-government. By the 12th century, however, many countries permitted Jewish communities to elect local town councils, the “Seven Good Men of the City.” These councils, chosen by the majority of adult males, supervised religious, economic, educational, and charity activities. The entire community often decided important questions at a town meeting.

Freedom of Religion and Speech

Being born a Jew makes one obligated to follow the Torah. But Jews must do this freely. Non-Jews have the freedom to practice their own religions. Moreover, unlike most other religions, Judaism does not actively seek converts.

A tradition of free speech existed among the Hebrews. Hebrew prophets openly spoke out against their kings and the people for failing to follow the Torah. During the long history of disputes over the meaning of the Torah, no one was tried for heresy (going against religious doctrine). Also, while the majority decided matters of law, the minority had a chance to be heard and their opinions were often recorded.

Fair Trial

In Judea, the court system had three levels. The highest court was the Great Sanhedrin, which had 71 judges. Lesser courts with 23 judges dealt with death penalty cases. Lower courts with three judges handled most civil and criminal matters. Most of these courts stopped functioning after the Romans destroyed the temple in Jerusalem. In countries where they were permitted to operate, however, three-judge courts continued to hand out justice in Jewish communities.

Many parts of the Torah, Talmud, and the codes of law that followed described due process procedures to ensure fair trials. Anyone accused of a crime had the right of bail except in death-penalty cases. Traditional Jewish courts had no trained lawyers arguing cases. The prosecutor was either the victim himself or, if he had been killed, a relative (“blood-avenger”) or someone appointed by the court. The accused could defend himself or ask another to plead for him. Evidence included documents and the testimony of witnesses. The consistent testimony of two male witnesses to the crime was necessary to convict the accused. The judges closely cross-examined witnesses in the presence of the accused. Circumstantial evidence alone was never enough to find someone guilty. Witnesses who broke the commandment forbidding one to “bear false witness” faced the same penalty that the accused would have suffered. The accused had an absolute right against self-incrimination and was not permitted to make statements harmful to himself. Likewise, confessions were not admissible evidence in court. There was no jury. The judges deliberated with the accused looking on. The youngest judge spoke his opinion first in order to avoid being influenced by the senior judges. The judges then decided the verdict by majority vote.


Punishment

The Torah clearly states the punishment for violating the commandment against killing: “Whoso sheddeth man’s blood by man shall his blood be shed; for in the image of God made He man.” Other capital crimes included adultery, idolatry, kidnaping, and burglary. Methods of execution in the Old Testament included burning, slaying with a sword, and stoning by the people. Because of the strict requirement of due process demanded by Jewish law to convict a murderer, some scholars believe the death penalty was rarely carried out.

Over the centuries, Jewish scholars agonized about the death penalty. Since the Torah says that a person’s body is holy and should not be mutilated, scholars devised execution methods to avoid this desecration. For example, they argued that “stoning” meant pushing a criminal off a high place into stones below to bring about a quick death with a minimum of mutilation.

The community courts that were allowed to operate in Europe and elsewhere used a variety of punishments to discipline violators of Jewish law. The most common punishment was flogging (no more than 39 lashes). Judges often reduced the number of lashes after taking account of the offender’s physical condition. The courts also used the “ban,” which placed great restrictions on the lives of lawbreakers or expelled them from the community.


* * * * *

In 1948, the Jewish people regained a homeland when they established the modern state of Israel. Today, this democratic nation is not strictly governed by the old Hebrew laws of the Torah. Israel has adopted modern procedures and individual rights from English and other Western legal systems. Many of these procedures and rights, however, had been developed from ancient principles of Jewish law.

For Discussion and Writing

1. In what ways did ancient Hebrew law differ from that of other Middle East civilizations?

2. What made the development of Jewish law after A.D. 70 different from that of other peoples?

3. What elements of Jewish law can you find in the U.S. Bill of Rights?

 

The Ten Commandments

1.         I am the Lord your God, who brought you out of the land of Egypt, out of the house of bondage. You shall have no other gods before me.

2.         You shall not make for yourself a graven image. You shall not bow down to them or serve them.

3.         You shall not take the name of the Lord your God in vain.

4.         Remember the sabbath day, to keep it holy.

5.         Honor your father and your mother.

6.         You shall not kill.

7.         You shall not commit adultery.

8.         You shall not steal.

9.         You shall not bear false witness against your neighbor.

10.       You shall not covet.


This is an abridged text from Exodus 20:1–17. Different versions alter the numbering of the commandments.

 

A C T I V I T Y


Should the Ten Commandments Be Posted in Public School Classrooms?

Today, some people are urging that the Ten Commandments be posted in every public school classroom. This proposal is not new. In 1978, the Kentucky state legislature passed a law requiring it. The stated purpose of this law was to honor a fundamental legal code of Western Civilization. The law was challenged in court as violating the First Amendment of the U.S. Constitution, which states that no law can be made “respecting an establishment of religion.”

The challengers argued that the Ten Commandments are held sacred by the Jewish and Christian religions. They pointed out that although some of the commandments concern secular matters such as murder, adultery, and stealing, other commandments relate to religious matters such as worshiping no other god, shunning idolatry, not using the Lord's name in vain, and observing the Sabbath. They argued that the law was an attempt by the state government to officially favor these religious beliefs.


Supporters of the law argued that the stated purpose of the law was not religious. They pointed out that our system of laws are based on these commandments and that it is important for students to learn about them. They argued that the law neither advances nor curbs any religion or religious group.


In this activity, the class will discuss whether the Ten Commandments should be posted in public school classrooms.

1.         Each student should review the article, the Ten Commandments, and the First Amendment, and then prepare a tentative written position.

2.         Ask half the class members to sit in a circle to share thoughts on the activity question. The rest of the class will observe. The teacher may ask the group clarifying questions as the discussion proceeds.

3.         After 10 minutes of discussion, ask the other half of the class to sit in the circle to share opinions while the first group observes.

4.         After 10 minutes, anyone in the class may offer final thoughts or arguments.

5.         The class then may take a vote on the activity question.


The U.S. Supreme Court decided a case on this question in 1980: Stone v. Graham.