RELIGIOUS ENCYCLOPEDIA
Law, Hebrew
the representatives of the community (Deut. xvii. 7). It must accordingly be assumed that though the Book of the Covenant does not state it. its " judges " were the elders. The priests retained their judicial power at all times. In the Book of the Covenant (Ex. xxii. 9, R.V.) the decision of God is sought at the sanctuary in cases of unusual difficulty, while in Deuteronomy the Levites constitute an ecclesiastical court which decides also secular matters. The tendency of Deuteronomy is to enlarge their jurisdiction, and to leave the elders the right of punishment only in those derelictions which directly concern the family (Deut. xxi. 1 sqq., 18 sqq., xxii. 13 sqq., xxv. 7 sqq.). At that period the king was the chief judge (II Sam. xiv. 4 sqq.), although his ruling might be sought at the very first, especially in difficult cases (II Sam. xv. 2 sqq.; I Kings iii. 16 sqq.; II Kings xv. 5). This right of the king was then transferred to his officials, who judged in the king's name. Unfortunately it is not known whether or how the authority of the royal officials was conditioned by the elders and priests. The Chronicler ascribes to Jehoshaphat the creation of a supreme court in Jerusalem and the appointment of judges in the individual cities (II Chron. xix. 4-11), but it is impossible to assume that the high priest and the " prince of Judah " were the spiritual and secular presidents of this court, although it would agree with the statement of the Chronicler that David had given 6,000 Levites the office of judge (I Chron. xxiii. 4, xxvi. 29). The local judges in the time of Ezra were chosen from among the elders of the city (Ezra vii. 25, x. 14). In the Greek and Roman period such judges were found everywhere (Judith vi. 16; Josephus, Wars, II., xiv. 1; cf. Matt. v. 22, x. 17; Mark xiii. 9). In small towns the council of elders exercised judicial functions (Luke vii. 3), while larger places seem to have contained special courts. In later times local courts usually had seven members, and twenty in larger cities.
Judicial procedure was oral, although the later period seems to have known written complaints (Job xxxi. 35 sqq.). The judges sat at the citygate (Deut. xxi. 19, xxii. 15; Amos v. 2. The 12, 15), while Solomon built a " porch Procedure, of judgment " at Jerusalem (I Kings vii. 7) . The plaintiff lodged his own complaint; if he failed to do so, no one else brought the matter to the attention of the court, for there was no prosecuting attorney. Proof was by witnesses, the "aw requiring the concordant testimony of two witnesses, especially in cases involving capital punishment (Deut. xvii. 6, xix. 15; Num. xxxv. 30; for an exception cf. Deut. xxi. 18 sqq.). According to the Talmud (cf. Josephus, Ant. IV., viii. 15) adult freemen alone were eligible as witnesses, slaves and women being excluded; according to Lev. v. 1, compulsory testimony was common. False witness was punished by the lex talionis (Deut. xix. 18 sqq.). In cases where witnesses could not be found, an oath was required (Ex. xxii. 6-11), and in the older period the Ordeal (q.v.) was frequently invoked as a means of proof (Ex. xxii. 8; I Sam. xiv. 41; Joshua vii. 14), although later this was re-
stricted to the single case of the charge of adultery (Num. v.). Torture was first employed as a means of obtaining testimony during the Herodian rule (Josephus, Wars, I., xxx. 2-5).
III. Criminal Law: In the Code of Hammurabi criminal law is under the absolute control of the State, while in the Old Testament it is still in process of development from private to public law.
Private law belongs primarily to the
i. Develop- lex talionis (" Eye for eye, tooth for
ment from tooth, wound for wound," Ex.
the Lex xxi. 24-25). This principle dom-
Talionis. inated even public law, as is shown by
the Code of Hammurabi, although it was originally the norm for private revenge. The man who had been injured had the right to do to his injurer the same harm as had been done him; among savage peoples revenge is regarded as a righteous and holy sentiment. This appears most clearly in the case of murder, where revenge was not merely justified but sanctified, and was a kinsman's duty. Absolute lex talionis, as is clear from Blood Revenge (q.v.), makes all controversies eternal, and it therefore marks a long step in advance when the Israelites at an early period substituted in certain cases the wergild for blood-revenge. Such compensation could not escape regulation by general custom, and ancient Israelitic usage required such settlement in personal injuries (Ex. xxi. 18), but paralleled it with blood-revenge, except in the case of manslaughter (Ex. xxi. 30). A third stage is pubic criminal law, in which society deprives the individual of the right of punishment, which is then executed by the authorities. Revenge thus becomes punishment, which is regulated by the interests of the whole community. Punishment has, moreover, a religious end. Sin, especially murder, brought on the land a defilement which was purged by punishment (cf. II Sam. xxi., xxiv.; Num. xxxv. 33; Deut.- xix. 19). This assumption of guilt by the State involved a family in the punishment of its members, and in aggravated cases children suffered with their fathers (Joshua vii. 24; II Kings ix. 26; cf. also the general principle that Yahweh visits the iniquity of the fathers upon the children). The concept of blood-revenge is still retained, and if the avengers are unable to seize the murderer, his family is slain instead (cf. II Sam. xxi. 6 sqq.), a principle found both in the Code of Hammurabi and in modern custom among the Bedouins, which was not abrogated among the Israelites before Deuteronomy (Deut. xxiv. 16). Punishment by retaliation occurs only in case of bodily injury, and substitutional punishment, frequent in the Code of Hammurabi, is mentioned but once (Deut. xxv. 12). The death-penalty was by stoning (Lev. xxiv. 14; Deut. xvii. 5), since such cases as those described in II Sam. i. 15 and II Kings x. 7, 25 were not the execution of a punishment ordered by the court. In certain instances the penalty was increased by burning or hanging the corpse, thus depriving the criminal of the benefit of burial (Lev. xx. 14, xxi. 9), although Deuteronomy (xxi. 22) mitigated this portion of the punishment. Crucifixion and strangulation (the latter, according to the Talmud, the usual
Law, Hebrew Law, William