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Biblical Social Welfare Legislation: Protected Classes and Provisions for Persons in Need

Published online by Cambridge University Press:  24 April 2015

Richard H. Hiers
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Extract

Objectivists will often hear a question such as: “What will be done about the poor or the handicapped in a free society?” The altruist-collectivist premise, implicit in that question, is that men are “their brother's keepers” and that the misfortune of some is a mortgage on others. The questioner is ignoring or evading the basic premises of Objectivist ethics and is attempting to switch the discussion onto his own collectivist base. Observe that he does not ask: “Should anything be done?” but “What will be done?”—as if the collectivist premise had been tacitly accepted and all that remains is a discussion of the means to implement it.

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Articles
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Journal of Law and Religion , Volume 17 , 2002 , pp. 49 - 96
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Copyright © Center for the Study of Law and Religion at Emory University 2002

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References

1. Rand, Ayn, The Virtue of Selfishness: A New Concept of Egoism 80 (Signet 1961)Google Scholar.

2. See Exod 3:8; Num 13:21-27; Deut 6:3; 11:9. Biblical quotations are from The New Oxford Annotated Bible with the Apocrypha, Revised Standard Version (Oxford U. Press 1977)Google Scholar. translation unless otherwise indicated.

3. See e.g. Num 13:17-26; Deut 6:10-11; 8:7-10; 11:10-12; 26:9, 15.

4. See Sealey, Raphael, The Justice of the Greeks (U. Mich. Press 1994)CrossRefGoogle Scholar; and Watson, Alan, The Spirit of Roman Law (U. Ga. Press 1995)Google Scholar. As to concern for the poor in other Ancient Near Eastern laws, see Weinfeld, Moshe, Social Justice in Israel and the Ancient Near East (Fortress Press 1995)Google Scholar.

5. See Gardner, E. Clinton, Justice. Virtue, and Law, 2 J. L. & Relig. 393, (1984)CrossRefGoogle Scholar discussing distributive justice as opposed to efforts to ground a contemporary understanding of justice on notions of virtue. Gardiner gives an illuminating account of law in the context of covenantal community, drawing especially on insights developed by the late H. Richard Niebuhr.

6. Mayflower Compact, quoted in Bradford, William, Of Plymouth Plantation 69–70 (Wish, Harvey ed., Apricorn Books 1962)Google Scholar.

7. Records of the Colony of New Plymouth vol. 11, 111–112 (White, William ed., AMS Press 1968; reprinted by AMS Press 1968) vol. 11, pp. 111–112 (adapted to modern spelling)Google Scholar. For other instances of such legislation see id. pp. 40–41, 193–194; and vol. 1, p. 22 (provisions for widows and orphans). Such laws gave expression to the Colony's founding ideals. See e.g. Dec. 15, 1617 letter by Robinson, John and Brewster, William to Sandys, Edwin, quoted in Harry Ward, M., Statism in Plymouth Colony 6 (Kennikat Press 1973)Google Scholar: “We are knite togeather as a body in a most stricte and sacred bond and covenante of the Lord, … by vertue whereof we doe hould our selves straitly tied to all care of each others good, and of the whole by every one and so mutually.”

8. Constitution of the United States, Preamble.

9. See e.g. Ellis v. City of Grand Rapids, 257 F. Supp. 564 (W.D. Mich. 1966)Google Scholar (developing hospitals and medical care facilities in conjunction with urban renewal projects accords with the governmental objective of promoting the general welfare).

10. Blaming the victim, of course, functions to relieve those doing the blaming from any sense of obligation to assist. See Harrington, Michael, The New American Poverty 148, 174, 202–203 (Holt, Rinehart & Winston 1984)Google Scholar. Additionally, as Job—one of the great biblical psychologists—observed, blaming the victim for his plight serves to alleviate the blamers' fears that they too might share such fate. See Job 6:14-23, critiquing his “friends’” motives.

11. See God's New Israel: Religious Interpretations of American Destiny 211–270 (Cherry, Conrad ed., Prentice Hall 1971)Google Scholar. As to the history and problematics of individualism as a recurrent source of normative confusion in American culture, see Bellah, Robert N., Habits of the Heart: Individualism and Commitment in American Life, (Updated, ed., U. Cal. Press 1996)Google Scholar. For many years following the New Deal and the Second World War, it was commonly assumed that poverty was no longer a problem in the United States. That illusion was punctured in the early 1960s by both the civil rights movement's spotlight on the actual conditions of minority citizens and by publication of Harrington's, Michael book, The Other America (Macmillan 1962)Google Scholar, which showed that poverty in the United States was not confined to “rural pockets” or non-whites, but rather affected some quarter of the overall population.

12. Hostility toward the poor and opposition to aiding them is not new in Anglo-American law and society. See Handler, Joel F., The Poverty of Welfare Reform 10–31 (Yale U. Press 1995)Google Scholar (reviewing the history of welfare beginning with the 1349 English Statute of Laborers). In the 19 Century, Charles Dickens clearly identified such ideology, attributing it to many of his literary characters, such as Ebenezer Scrooge (prior to his famous supernaturally induced conversion) in The Christmas Carol, or Alderman Cute and Sir Joseph Bowley in The Chimes. Norman C. Amaker has spelled out the impact of social policy grounded in such hostility upon the welfare of persons during the 1980s: Civil Rights and the Reagan Administration (Urban Inst Press 1988)Google Scholar. Responding to the needs of the poor has not, typically, been part of the agenda of the religious right. See Bounds, Elizabeth M., Welfare as a Family Value: Conflicting Notions of Family in Protestant Welfare Responses, in Welfare Policy 157–174 (Bounds, Elizabeth M., et al. ed., Pilgrim Press 1999)Google Scholar. See Olasky, Marvin, Welfare Reform, Texas Style, in Citizen, vol. 13, no. 7, 20–21 (07, 1999)Google Scholar (commending voluntary church-sponsored welfare programs, but expressing concern lest these, like “the government mistakes” might result in “welfare dependency”). See Shriver, Peggy L., The Bible Vote: Religion and the New Right (Pilgrim Press 1981)Google Scholar. See also Teles, Steven M., Whose Welfare? AFDC and Elite Politics 150–152 (U. Press of Kan. 1998)Google Scholar (critiquing conservative Republican contentions that government welfare programs foster “illegitimacy”). For a somewhat pungent account of recent anti-welfare ideologues, see Ivins, Molly, You Got to Dance with Them What Brung You 17–22, 26–28, 132–138, 142–144 (Random House 1998)Google Scholar.

13. Cook, Fay Laney and Barrett, Edith J. offer a more positive review of public attitudes in their book, Support for the American Welfare State: The Views of Congress and the Public (Columbia U. Press 1992)Google Scholar. The book was written before the 1992 Congressional election.

14. “The fundamental moral perspective of the Biblical rules is its concern to protect the most vulnerable members of the community against advantage-taking or exploitation. In a word, the interest is justice.” Rasor, Paul B., Biblical Roots of Modern Consumer Credit Law, 10 J. L. & Relig. 157, 167 (1993–1994)Google Scholar. See deVries, Barend A., Champions of the Poor: The Economic Consequences of Judeo-Christian Values 173–182 (Georgetown U. Press 1998)Google Scholar. And see Ogletree, Thomas W., The Use of the Bible in Christian Ethics 55–57 (Fortress Press 1983)Google Scholar (on the status of vulnerable persons in biblical law).

15. Some laws considered in part II of this article might also be characterized as “civil rights” legislation. Persons within the indicated “protected classes” under these laws, however, are largely the same as the designated beneficiaries of laws calling for affirmative care considered in part HI. Together, these laws concern the well-being or welfare of the more vulnerable members of the community.

16. The divine name most commonly found in biblical texts, translated as “the LORD,” (or transliterated as “Jehovah”) is rendered in this article as “YHWH.” The name may have been pronounced “Yahweh,” but is not spoken at all in traditionalist Judaism. The name “Elohim,” is usually translated as “God.”

17. The biblical text uses several different names in describing the people who are central to its narrative. In early times, they are called “Hebrews,” a name that occurs rarely in later portions of the Bible. Also, in early times, the name “Israel” initially designated Jacob and his descendants, but then later denoted the northern tribal confederation and the still later Northern Kingdom. “Judah” refers to the tribe of that name, and later the Southern Kingdom. The term “Jews,” derived from “Judah,” appears only in relatively late texts. To simplify matters, in this article the terms “Israel” or “Israelites” and “Hebrews” will be used (sometimes anachronistically) to designate biblical people in Old Testament times.

18. Thus Gaffney, Edward McGlynn Jr., Biblical Religion and American Politics: Some Historical and Theological Reflections, 1 J. L. & Relig. 171, 182 (1983)Google Scholar: “In my view, no text from a prior period can fairly be expected to provide direct answers to questions not asked at the time that the text was written.”

19. See Rasor, supra n. 14, at 58: “[M]any of our modern consumer credit laws have direct antecedents in the Biblical legal codes, and modern law contains strong moral underpinnings which reflect the moral and religious norms found in Biblical law.” Biblical laws, of course, substantially inform much of the law of the modern State of Israel. This article does not attempt to trace these connections.

20. Niebuhr, Reinhold, The Children of Light and the Children of Darkness 125 (Scribner's 1946)Google Scholar. See Bellah, Robert N., The Broken Covenant: American Civil Religion in a Time of Trial (Seabury Press 1975)Google Scholar:

It is one of the oldest sociological generalizations that any coherent and viable society rests on a common set of moral understandings about good and bad, right and wrong, in the realm of individual and social action. It is almost as widely held that these common moral understandings must also in turn rest upon a common set of religious understandings that provide a picture of the universe in terms of which the moral understandings make sense. Id. at ix.

21. See Midgley, Mary, Can't We Make Moral Judgments? (Bristol Press 1991)Google Scholar, analyzing and critiquing moral relativist claims.

22. See e.g. Posner, Richard A., The Problems of Jurisprudence (Harv. U. Press 1990)Google Scholar. To speak of a social (or jurisprudential) “problem” is to say that there is something wrong about the situation in question. To speak of a “solution” is to say that there is or should be a better way to re-order the societal interactions or arrangements. Those who are committed to the notion that only objective reality or rational statements can be valid, generally do not acknowledge the basis for their own moral judgments. See nn. 211-217 and accompanying text.

23. See Rawls, John, A Theory of Justice (Clarendon Press 1972)Google Scholar.

24. To espouse self-interest, of course, is to take a normative position, e.g. that it is good or right for me to pursue my self-interest, or that everyone should seek his or her own self-interest. Seeking one's own self-interest does not mean that a person can or should not be concerned with others' welfare; but self-interest does not necessarily prompt concern for others' welfare. Rand's position, belabored throughout many of her writings, argues this point consistently and correctly. See n. 217 and accompanying text.

25. E.g. Dworkin, Ronald M., Taking Rights Seriously xv, 162, 181–182, 273 (Harv. U. Press 1977)Google Scholar.

26. As to the problematics of normative claims in CLS circles, see e.g. Neacsu, E. Dana, CLS Stands for Critical Legal Studies, if Anyone Remembers, 8 J. L. & Policy 415 (2000)Google Scholar. Compare Anthony Cook's proposal that the late Dr. Martin Luther King, Jr.'s vision of “the beloved community” offers a positive model for reconstructing society following the normative vacuum left by various CLS deconstructions. See Cook, Anthony E., Beyond Critical Legal Studies: The Reconstructive Theology of Dr. Martin Luther King, Jr., 103 Harv. L. Rev. 985 (1990)CrossRefGoogle Scholar, and his book, The Least of These: Race, Law, and Religion in American Culture (Routledge 1997)Google Scholar.

27. Religion—at any rate, the “Western” religions, Judaism and Christianity—is often assumed, by the cultured among the despisers, to be irrelevant or worse. See e.g. Weinstein, infra, n. 35, at 412-413, quoted in n. 36. See Stetson, Brad, Comment Human Dignity and Contemporary Liberalism 95 (Praeger Publg. 1998)Google Scholar: “The most apparent consequence of the liberal elites' public disparagement of traditional Teligious conviction and its perspective on public policy and cultural controversies is the marginalization of its contributions to the nation's civic life historically and to our current social exigencies, for example, welfare reform.”

28. See Perry, Michael J., The Idea of Human Rights: Four Inquiries (Oxford U. Press 1998)Google Scholar. Perry argues that an intelligible case for human rights can be made only on religious grounds. This thesis necessarily runs counter to the ideology of secular rationalist and post-modernist pundits. As one commentator has noted recently:

In arguing his case, [Perry] challenges those who wish to [contend] that religion is not helpful or convincing, especially against the argument by secular thinkers such as the neo-Kantian Jurgen Habermas, the neo-Pragmatist Richard Rorty, the neo-Liberal Ronald Dworkin, and the neo-Classicist Martha Nusbaum, all of whom say that they want to support human rights but cannot supply a good reason for doing so.

Stackhouse, Max L., Reflections on “Universal Absolutes,” 14 J. L. & Relig. 97, (1999–2000)CrossRefGoogle Scholar. See Symposium, Perry Symposium, 14 J. L. & Relig. 1–163 (1999–2000)Google Scholar (symposium articles on Perry's book cited above in this note).

29. See Niebuhr, H. Richard, Radical Monotheism and Western Culture (Harper 1960)Google Scholar; infra nn. 217, 223-226, and accompanying text; Stetson, supra n. 27, at 43: “To speak of human dignity as intrinsic is to speak of human dignity in its most traditional, Judeo-Christian sense.” See id. at 33; infra n. 43 and accompanying text. Of course, secular humanists can and do affirm the value of human life, but they do so as a matter of faith and as a moral judgment deriving from that faith. As Niebuhr observes, the proposition that all men (or persons) are created equal can be understood only as an expression of commitment to the value or worthiness of all human beings, notwithstanding obvious differences. Niebuhr, , Radical Monotheism and Western Culture 73–77Google Scholar. See infra, n. 234 (further describing and analyzing the faith and ethics of humanism).

30. See e.g. al-Hibri, Azizah, Islam, Law and Custom: Redefining Muslim Women's Rights, 12 Am. U. J Intl. L. & Policy 1 (1997)Google Scholar.

31. Otherwise excellent biblical studies typically contain no discussion of social welfare laws as such. See e.g. Boecker, Hans Jochen, Law and the Administration of Justice in the Old Testament and Ancient East (Augsburg Press 1988)Google Scholar; Carmichael, Calum, The Spirit of Biblical Law (U. Ga. Press 1996)Google Scholar; Essays in Old Testament Ethics (Crenshaw, James L. & Willis, John T. eds., KTAV 1974)Google Scholar; Levinson, Bernard M., Deuteronomy and the Hermeneutics of Legal Innovation 150 (Oxford U. Press 1997)Google Scholar; Patrick, Dale, Old Testament Law (John Knox Press 1985)Google Scholar; Pilch, John J. & Malina, Bruce J., Biblical Social Values and their Meaning (Hendrickson 1993)Google Scholar; Westbrook, Raymond, Biblical Law, in Hecht, N.S.et al, eds., An Introduction to the History and Sources of Jewish Law 1–17 (Clarendon Press 1996)Google Scholar; and Weinfeld, Moshe, Social Justice in Ancient Israel and in the Ancient Near East (Fortress Press 1995)Google Scholar.

But see Blumberg, Craig L., Neither Poverty Nor Riches: A Biblical Theology of Material Possessions 39–50 (Eerdman's 1999)Google Scholar (on related biblical law but not specifically on welfare); Gowan, Donald E., Wealth and Poverty in the Old Testament: The Case of the Widow, the Orphan, and the Sojourner, 41 Interpretation 341–353 (1987)Google Scholar; Hamilton, Jeffries M., Social Justice and Deuteronomy: The Case of Deuteronomy 15, Society of Biblical Literature Dissertation Series no. 136 (Scholars Press 1992)Google Scholar (addressing many related issues under the rubric of “social justice”); and Limburg, James, The Prophets and the Powerless 28–31 (John Knox Press 1977)Google Scholar.

32. See e.g. Coffin, William Sloane, The Heart is a Little to the Left: Essays on Public Morality ix (U. Press of New England 1999)Google Scholar: “Above all, I believe we need to claim the kinship of all people, to recover the prophetic insight that we belong one to another …”; Maston, T.B., Biblical Ethics 69 (Mercer U. Press 1982)Google Scholar: “There is no portion of the Old Testament that speaks more pointedly to the needs of our day than the prophets.” See Niebuhr's, Reinhold equation of “prophetic Christianity” with social ethics in his early book, An Interpretation of Christian Ethics, 61, 62 (Harper & Row 1986)Google Scholar. Bennett, John C. makes no reference to either biblical law or prophets in Christian Ethics and Social Policy (Scribner's 1950)Google Scholar. Others also typically give little or no attention to biblical law in their reflections on ethics and social ethics: e.g. Brown, Robert McAfee, Gustafson, James M., King, Martin Luther Jr., Lehmann, Paul, Pope, Liston, Ramsey, Paul, Ryan, John A., & Shinn, Roger. Fletcher, Joseph, who professed to be allergic to law of all kinds, unsurprisingly, does not draw on biblical law in his moral reflections: Situation Ethics: The New Morality (Westminster 1966)Google Scholar; Moral Responsibility: Situation Ethics at Work (Westminster 1967)Google Scholar. In Situation Ethics: The New Morality, Fletcher asserts, “The prophetic J tradition gave way to the E-D tradition, with its precepts and laws.” Id. at 18 n. 2. See id. at 71-75 where Fletcher dismisses the moral relevance of the Ten Commandments as “TABLETS OF STONE.”

But see Maguire, Daniel C., The Moral Core of Judaism and Christianity 131–144 (Augsburg Fortress Press 1993) (considering several biblical welfare texts under the heading of “Justice”)Google Scholar; Church, Catholic, Economic Justice for All: Pastoral Letter on Catholic Social Teachings and the United States Economy (Catholic Telegraph 1986)Google Scholar; and Thies, Stanley Carlson, Transforming American Welfare: An Evangelical Perspective on Welfare Reform, in Toward a Just and Caring Society: Christian Responses to Poverty in America 473–498 (Gushee, David D. ed., Baker 1999)Google Scholar.

Several studies of welfare issues have appeared in recent years, but these typically do not consider or even mention biblical welfare legislation. See e.g. Welfare Policy: Feminist Critiques (Bounds, Elizabeth M. ed., Pilgrim Press 1999)Google Scholar; Handler, Joel F., The Poverty of Welfare Reform (Yale U. Press 1995)Google Scholar; Telles, Steven M., Whose Welfare? AFDC and Elite Politics (U. Kan. Press 1998)Google Scholar.

33. See Blenkinsopp, Joseph, Biblical Law and Hermeneutics: A Reply to Professor Gaffney, 4 J. L. & Relig. 97, 100 (1986) (Legal matters in the Hebrew Bible are to be understood as “the inculcation of a societal ideal to which the community is directed through the laws”)Google Scholar.

34. Such classes of persons were vulnerable not only economically, but also because they may not have been permitted to represent themselves in legal proceedings. See Rasor, supra n. 14, at 164 n. 39. But see infra n. 153 and also Gowan, supra n. 31, at 345, reviewing texts indicating that widows had legal standing in some situations. As to biblical emphasis on justice in the courts, see generally Noonan, John T. Jr., Bribes 14–30 (Macmillan 1984)Google Scholar.

35. See Fletcher, George P., In God's Image: the Religious Imperative of Equality under Law, 99 Colum. L. Rev. 1608, 1615 (1999)CrossRefGoogle Scholar:

The text of Genesis [1:26-27] is, in fact, the beginning of the thread favoring equality that binds the earliest legends of creation together with Lincoln's reformulation of the Declaration of Independence. The foundations of equality emerge in the book of Genesis; they are restated in a secular idiom in Kant; and they come into modern political discourse as an unquestioned assumption of the liberal pursuit of justice. My view is that, if we look carefully at the text of Genesis, we will find the roots of those truths that today we hold to be “self-evident.”

Fletcher proposes that U.S. courts eschew “scrutiny and interest balancing in cases that challenge caste-based inequalities,” urging that “the basis of equalitarian jurisprudence should not be the state and its interests but, rather, the intrinsic equality of all persons created in God's image.” Id. at 1628-1629. Fletcher might also have cited a legal text, Num 15:15-16, which derives from the same Priestly or P circles as the first creation story's image of God language. See infra n. 72.

See Weinstein, Jack B., Adjudicative Justice in a Diverse Mass Society, 8 J. L. & Policy 385 (2000) (calling for equalizing the adversary and adjudicatory systems in the interest of the poor or less privileged)Google Scholar. Weinstein mistakenly states that Fletcher's “argument [is] based on language in Gen 2:18-23,” and reject's Fletcher's proposal because: “In view of the divisiveness of religions and the tendency of adherents to want to dominate or proselytize others, the First Amendment rather than the story of creation seems a better guarantor of equality in our civil society.” Id. at 412-413 n. 65 [strangely not mentioning the Equal Protection Clause]. Yet Weinstein declares that the “thesis” of his own article is “rooted in Learned Hand's command, ‘Thou shalt not ration justice,’ and the Bible's, nor shall ‘you distinguish between the rich and poor or prevent the justice due to your poor in his suit’.” (Exod 23:6). Id. at 388. Weinstein cites Deut 16:19 as further authority (id. at 406, n.53), and concludes, quoting the “Golden Rule,” which he attributes jointly to Hillel and Jesus. Id. at 412, n. 65.

36. Israelite law developed over time, and was codified periodically. New codes added or amended, and sometimes omitted older laws. Not all biblical laws were in effect at the same time—and some may never have been put into effect. To keep track of changes in the law, reference is made here to the major codes or collections, as commonly identified by biblical scholars.

The earliest of these was the Covenant Code (CC), found in Exod 20-23, and dated perhaps as early as the 12th Century BCE. Next or “second” comes the Deuteronomic Code (D), including Deut 5:20-27 (and possibly portions of chs.12-19), set down two or three centuries later. See Tigay, Jeffrey H., The JPS Torah Commentary: Deuteronomy xix–xxii (Sarna, Nahum M. ed., Jewish Publication Socy. 5756/1996) (dating the civil laws in Deuteronomy to the 10th or 9th centuries BCE)Google Scholar. Then follows the Holiness Code (H), located in Lev 17 or 18 through 26, dated in the middle of the 7th Century BCE.

Soon afterward came a series of added or revised laws associated with the centralized worship requirement instituted by Deuteronomic Reform of 622 BCE (here designated DR) found in Deut 12-19. Many scholars treat all laws in Deut 5-27 as part of a single Deuteronomic Code, which they date in the 8th or 7th centuries BCE. The question then is how to understand the connection between laws obviously related to those in the CC, and those found in Deut 12-19 and 26 that pertain to the centralization of worship mandated by the Deuteronomic Reform. One commentator urges that the 8th or 7th century authors of chapters 5-27 borrowed early laws from the CC simply in order to give their own work an aura of “prestige” and “authority” from the past. Levinson, Bernard M., Deuteronomy and the Hermeneutics of Legal Innovation 150 (Oxford U. Press 1997)Google Scholar. Another suggests that the centralization laws belong to a “somewhat later stratum of tradition in the book's complicated process of growth.” von Rad, Gerhard, Deuteronomy: A Commentary 89 (Westminster Press 1966)Google Scholar. Von Rad does not date the earlier legal material. This article proceeds on the hypothesis that D (chs. 5, 20-25) represents a collection of laws set down relatively early, at any rate before to the Holiness Code; and that the DR laws relating to the centralization of worship in Deut 12-19 and 26 were added after H had been codified, but before promulgation of the Priestly Code.

The last or most recent codification was the Priestly Code (PC). This term designates the extensive body of laws found elsewhere in Exodus, Leviticus and the book of Numbers. It is generally agreed that these laws were recorded in circles associated with the Jerusalem priests during the 6th or 5th centuries BCE.

37. Deut 27:19. See Deut 10:18: “[YWHW] executes justice for the fatherless and the widow, and loves the sojourner, giving him food and clothing.” These concerns come to expression in the prohibitions at Deut 24:17-19: “You shall not pervert the justice due to the sojourner or to the fatherless, or take a widow's garment in pledge; but you shall remember that you were a slave in Egypt and YHWH your God redeemed you from there; therefore I command you to do this.” As to Deut 24:17-18, see Hamilton, supra n. 31, at 130-133. The prophet Zechariah re-iterated such concerns: “Thus says YHWH of hosts, Render true judgments, show kindness and mercy each to his brother, do not oppress the widow, the fatherless, the sojourner, or the poor…” (Zech 7:9-10). Similarly, Jer 7:5-6. See Mai 3:5: “Then I will draw near to you for judgment; I will be a swift witness against … those who oppress the hireling in his wages, the widow, and the orphan, against those who thrust aside the sojourner, and do not fear me, says YHWH of hosts.” See Psalm 94:1-7 (condemning those who kill the widow, sojourner, and the fatherless), and Psalm 146:5-9 (YHWH gives the oppressed justice, the hungry food, sets prisoners free, opens the eyes of the blind, and cares for the sojourner, widow, and fatherless).

38. Exod 23:6.

39. See Amos 5:12: “For I know how many are your transgressions … you who … turn aside the needy in the gate.” “At the gate” refers to the local court. See Boecker, supra n. 31, at 31.

40. Prov 22:22-23. Some remembered echo of the last part of this verse may have prompted Karl Marx to formulate his famous doctrine that in due course, history, unfolding mechanistically (Marx's surrogate for divine justice) would bring about the “expropriation of the expropriators.”

41. See Prov 29:7 (“A righteous man knows the rights of the poor; a wicked man does not understand such knowledge”); and Prov 31:9 (“Open your mouth, judge righteously, maintain the rights of the poor and needy”). And see Job 29:12, 16-17. As to the concept of rights in biblical law, see Wolfson, Susan A., Modern Liberal Rights Theory and Jewish Law, 9 J. L. & Relig. 399 (1992)CrossRefGoogle Scholar. Wolfson notes that biblical (and Jewish) law emphasize obligations more than rights, but observes that rights concepts are also present, though not in the sense characteristic of 18th Century and modern radical individualism. “Modern liberal theory almost never directly concerns itself with duties, nevertheless, it implicitly takes account of them. The situation in Jewish law may be a similar one, that is that Jewish Law is somehow implicitly concerned with rights … [Jewish] law begins with individuals already placed in their social context; the law itself places them in this context. The picture is not of autonomous individuals standing alone in their ‘moral zone,’ as for example Nozickian citizens do …” Id. at 414 (internal citations omitted). See Colin, Haim Hermann, Human Rights in Jewish Law (KTAV 1984)Google Scholar.

42. Exod 23:3. See Lev 19:15: “You shall do no injustice in judgment; you shall not be partial to the poor or defer to the great, but in righteousness shall you judge your neighbor.” On equal protection in biblical law, see Cohn, supra n. 41, at 189-196. See Brin, Gershon, Studies in Biblical Law: From the Hebrew Bible to the Dead Sea Scrolls 88–89 (JSOT Press 1994) (discussing Exod 23:3)Google Scholar.

43. See Psalm 82:3-4, which may have been addressed to members of the divine or heavenly council, but also implies what human courts should do: “Give justice to the weak and fatherless; maintain the right of the afflicted and the destitute. Rescue the weak and the needy; deliver them from the hand of the wicked.”

44. See nn. 37-43 and accompanying text.

45. See n. 78 and accompanying text.

46. Exod 22:25.

47. Neither of these laws precluded lending at interest to fellow Israelites who were not poor.

48. Amos 5:11. See Ezek 22:12. Compare Deut 23:19-20, which prohibits lending money at interest to “your brother” (fellow Israelite), with no mention of economic status, but permits lending at interest to a foreigner. See Yaron, Reuven, Biblical Law: Prolegomena, in Jewish Law in Legal History, Supplement to The Jewish Law Annual 27, 29 (Jackson, Bernard S. ed., E.J. Brill 1980)Google Scholar: “It is not difficult to see that all these provisions share a common background: they all concern loans granted on compassionate grounds …, intended to help one's fellow who has fallen upon bad times. In circumstances such as these the making of a profit out of one's fellow's predicament is viewed as repugnant.” And see Brin, supra n. 42, at 86.

49. Exod 22:26-27. That such a person is poor can be inferred from the fact that he owns only the one “garment” or coat. Deut 24:12-13 explicitly refers to a poor man's garment held in pledge. See Brin, supra n. 42, at 82-85. On biblical conceptions of compassion, see Pilch & Malina eds., supra n. 31, at 28-30.

50. See Rasor cited in n. 14, at 190: “In modern law, the moral basis is obscured by the prevailing tendency to talk in purely legalistic and economic terms …. The fundamental unifying principle of both the Biblical lending rules and modern consumer credit law is the desire to ensure that the most vulnerable members of society are treated fairly and to protect them from overreaching and oppression …. [T]his unifying principle is to be understood as a moral norm, and not simply as an economic or legal rule.”

51. Amos 2:8.

52. Deut 24:6.

53. See Deut 23:24-25, providing that Israelites who entered their neighbors' vineyards and grain fields might eat what they wished. This arrangement would have been especially beneficial to the poor, but in its terms, applied to all classes of persons. This privilege is illustrated in the New Testament [hereinafter NT]: see Matt 12:1; Mark 2:23; Luke 6:1.

54. Deut 25:13-16; Lev 19:35-36. See Micah 6:11: “Shall I acquit the man with wicked scales and with a bag of deceitful weights?” See Amos 8:4-6. And see Prov 16:11 & 20:23.

55. Lev 5:7-13.

56. Lev 14:21-23. As to these and a few other texts reducing or eliminating obligations of those unable to afford compliance with certain religious or cultic laws, see Brin, supra n. 42, at 74-79. But see Exod 30:11-15: Every Israelite, whether rich or poor, was to pay the same half shekel census tax (or atonement fee), in effect, a flat tax.

57. A wisdom saying in the book of Tobit applies the principle of proportionate giving to aiding the poor: “Give alms from your possessions to all who live uprightly, and do not let your eye begrudge the gift when you make it …. If you have many possessions, make your gift from them in proportion; if few, do not be afraid to give according to the little you have.” Tobit 4:7-8. Here we see that a limiting, moral test has been added: only the righteous poor are to be aided. Compare 1 Cor 16:1-2. As to other “leniencies in the law” as to the poor, see Brin, supra n. 42, at 74-89.

58. But see n. 42 and accompanying text, noting that courts or judges were to be impartial in administering justice to the poor.

59. Amos 2:6-7; 4:1; 5:11; 8:4, 6.

60. Isaiah 3:13-15; 10:1-2; Jer 2:34.

61. Prov 14:31 (“He who oppresses a poor man insults his Maker”); 22:16 (He who oppresses the poor to increase his own wealth, or gives to the rich, will only come to want”). See Prov 22:22-23.

62. Jer 5:28.

63. See Cohn, supra n. 41, at 77: “It is now generally assumed that most of the ‘strangers,’ that is migrants, who, in antiquity, left their own lands and went into foreign parts were refugees in the modern sense—if not from individual persecution and oppression, at any rate from famine (cf. Gen 12:10; Ruth 1:1; 2 Kings 8:1) or some other disaster; and from the biblical prescriptions relating to them it is abundantly clear that they were among the poor and needy who had to be given shelter, food, and raiment (Lev 19:10; 23:22; Deut 10:18, et al.).” Biblical law did not propose to bar economic refugees.

64. Deut 10:18-19.

65. Deut 10:19; Lev 19:34.

66. Lev 19:33.

67. Exod 22:21.

68. Exod 23:9. On such “motive clauses,” see Hamilton, supra n. 31, at 85-91; Nasuti, Harry P., Identity, Identification, and Imitation: the Narrative Hermeneutics of Biblical Law, 4 J. L. & Relig. 9 (1986)CrossRefGoogle Scholar; and Sonsino, Rifat, Motive Clauses in Hebrew Law: Biblical Forms and Near Eastern Parallels, SBL Dissertation Series, no. 45 (Scholars Press 1980)Google Scholar.

69. Deut 23: 15-16.

70. See Hiers, Richard H., Reverence for Life and Environmental Ethics in Biblical Law and Covenant, 13 J. L. & Relig. 127, 160–162 (1996–1998)Google Scholar.

71. Exod 23:12. See Exod 20:8-10; Deut 5:12-14. Sojourners were not to work on the Day of Atonement, either. Lev 16:29-30.

72. Num 15:15-16. See Num 15:29-30. Impartiality in judging between Israelite and alien evidently was also called for in Deut 1:16. Notable exceptions to the principle of equal protection for aliens were the laws allowing Israelites to foreclose and exact interest on loans to aliens. Deut 15:3; 23:20. Other exceptions are indicated at Exod 21:8 (foreigners not to partake of Passover), and Deut 17:15 (foreigner may not become king). See Conn, supra n. 41, at 161: “These explicit exceptions seem to indicate that unless expressly otherwise provided, all laws applying to Israelites apply also to foreigners.”

73. lev 24:22.

74. Seee.g.Gen 1:1-10:32; Psalms 8 & 145; Isaiah 49:6; and Jonah 1-4. See infra n. 226.

75. It has been suggested that in biblical times, a woman whose husband had died would not have been considered a widow if she returned to her parents' house. True “widows” lacked family ties and generally had no share in family property, according to Boecker, supra n. 31, at 19. At all events, biblical widows, like orphans, typically lived on the economic margins of society. There is no evidence, however, that relatives ever (much less “often”) sold widows into slavery, contra Schroer, Silvia, Toward a Feminist Reconstruction of the History of Israel, in Schottroff, Luiseet al., Feminist Interpretation: The Biblein Women's Perspective 123 (Fortress Press 1998)Google Scholar.

76. Exod 22:22-24. According to Prov 15:25, YHWH also looks out for the interests of widows in more positive terms: “YHWH tears down the house of the proud, but maintains the widow's boundaries.” See Sirach 35:14: “He will not ignore the supplication of the fatherless, nor the widow when she pours out her story.”

77. Isaiah 10:1-2; see Jer 7:5-7 and Mal 3:5.

78. Isaiah 1:16-17. See Isaiah 1:23, condemning those who failed to “defend the fatherless” or take up “the widow's cause,” and Jer 5:28: “… they judge not with justice the cause of the fatherless, to make it prosper, and they do not defend the rights of the needy.” See Sirach 4:9-10, where the sage urges readers: “Deliver him who is wronged from the hand of the wrongdoer; and do not be fainthearted in judging a case. Be like a father to orphans, and instead of a husband to their mother ….” Similar obligations are implicit in Job's account of his previous conduct: “I was a father to the poor, and I searched out the cause of him whom I did not know. I broke the fangs of the unrighteous, and made him drop his prey from his teeth.” Job 29:16-17; see 29:11-12. And see Prov 31:9: “Open your mouth, judge righteously, maintain the rights of the poor and needy.”

79. Deut 24:17b.

80. Exod 22:26-27; Deut 24:12-13.

81. Exod 20:10; 23:12; Deut 5:12-15. See especially Exod 23:12 & Deut 5:14-15. On the Sabbath law, see generally Harrelson, Walter, The Ten Commandments and Human Rights 79–92 (Fortress Press 1980)Google Scholar.

82. Lev 19:13. See Deut 24:14-15:

You shall not oppress a hired servant who is poor and needy, whether he is one of your brethren or one of the sojourners who are in your land within your towns; you shall give him his hire on the day he earns it, before the sun goes down (for he is poor, and sets his heart upon it); lest he cry against you to YHWH, and it be sin in you.

Such law may have been the basis for one of Tobit's admonitions to his son: “Do not hold over until the next day the wages of any man who works for you, but pay him at once.” (Tobit 4:14). See Mai 3:5: “Then I [YHWH] will draw near to you for judgment … against those who oppress the hireling in his wages ….” Here the offense may be either underpayment or withholding wages.

83. Sirach 7:20-21 not only cautions against abusing faithful and devoted servants or employees; the writer urges employers to love worthy servants. See Sirach 33:30-31. Job, a model of biblical righteousness, asserts that he never “rejected the cause of [his] manservant or … maidservant when they brought a complaint against [bim].” Job 31:13.

84. Jer 22:13.

85. Deut 27:18.

86. Lev 19:14.

87. Job 29:15. See Prov 31:8: “Open your mouth for the dumb ….” Prophetic texts also show solicitude for the disabled: YHWH himself would care for or heal them. See Micah 4:6-7 (“the lame”); Isaiah 35:5-6 (the blind, deaf and lame). See in the NT, Luke 14:12-14: “[W]hen you give a feast, invite the poor, the maimed, the lame, the blind …”

88. See Burrows, Millar, An Outline of Biblical Theology 302 (Westminster Press 1946)Google Scholar: “The use of land was subject to the welfare of the community, including provision for the poor, for widows, and for resident aliens (who had no allotment in Israel). Their support was secured by the laws of gleaning and the like, also the sabbatical year, and the release of debts.”

89. See e.g. Exod 9:29b; 19:5; Deut 10:14; and Psalms 24:1-2 & 50:10-12.

90. This concern may be especially characteristic of laws found in the Deuteronomic Code (D) and also the Deuteronomic laws set down in connection with the Deuteronomic Reform (DR). See Gaffney, supra n. 18, at 180-181: “[Deuteronomy] … is … a powerful program for social reform including care for disadvantaged classes ….” See Boecker, supra n. 31, at 181-184 on compassionate or humanitarian concerns in Deuteronomic law. And see Falk, Ze'ev W., Religious Law and Ethics 70–72 (Mesharim 1991)Google Scholar (on the interpenetration of law and ethics in Deuteronomy) and most recently, Tigay, supra n. 36, at xviii: “The Torah's humanitarianism is most fully developed in Deuteronomy's legislation and exhortations on behalf of the poor and disadvantaged: debtors, indentured servants, escaped slaves, resident aliens, orphans, widows and Levites, as well as animals and even convicted criminals.” (emphasis added) Strangely, many commentaries on Deuteronomy do not recognize the compassionate character of Deuteronomic legislation.

Such concern can also be found in the other major biblical law codes as well: the Covenant, Holiness, and Priestly Codes. As to the Covenant Code, see Dorff, Elliot N. & Rosett, Arthur, A Living Tree: The Roots and Growth of Jewish Law 28 (SUNY Press 1988)Google Scholar:

Toward the end of [Exodus] 22 the tone shifts again. Now the fair and compassionate treatment of strangers, widows, orphans, and debtors is no longer based solely on the fear of Divine anger. Instead, the major appeal is to the moral quality of compassion, the memory of our own suffering that leads us not to cause others to suffer. See Hanson, Paul D., The People Called: The Growth of Community in the Bible 44–45 (Harper & Row 1981)Google Scholar (on the quality of “compassionate justice” implicit in Exod 20:22-26 & 22:17-23:19).

91. Biblical law does not specifically mandate care for the aged. The commandment to honor father and mother (Exod 20:12; Deut 5:16), of course, includes aging and aged parents. Again, wisdom tradition suggests what may have been common law or accepted practice. See Sirach 3:116, a series of admonitions as to honoring parents. For instance, Sirach 3:12:

O son, help your father in his old age,

and do not grieve him as long as he lives;

even if he is lacking in understanding, show forbearance;

in all your strength do not despise him.

See Prov 23:22-25; Sirach 7:27-28; 8:6.

92. Wisdom writings express similar concern. See e.g. Prov 22:9: “He who has a bountiful eye will be blessed, for he shares his bread with the poor.” See Tobit 1:17; 4:16 (“bread to the hungry” and “clothing to the naked”). Various NT texts likewise call for feeding the hungry. See e.g. Luke 14:13 (“But when you give a feast, invite the poor, the maimed, the lame, the blind …”); Luke 16:19-31 (the Parable of the Rich Man and Lazarus “who desired to be fed with what fell from the rich man's table”); Matt 25:34-45; and 1 John 3:17.

To a lesser extent, biblical prophets affirmed the obligations of those with property as to the hungry. See Isaiah 58:7, 10; Ezek 18:7, 16; see Job 22:7; 31:16-17. Weinfeld discusses these and other texts regarding support for the poor and needy, but strangely neglects relevant biblical law. See Weinfeld supra n. 31, at 215-239.

93. Deut 24:19-22.

94. Since the privilege of gleaning was established by law, it could be considered also a “right” or entitlement. See supra n. 4.

95. Another Deuteronomic law, possibly deriving from the Reform legislation, provides an additional benefit for sojourners: “You shall not eat anything that dies of itself; you may give it to the alien who is within your towns, that he may eat it, or you may sell it to a foreigner; for you are a people holy to YHWH your God.” (Deut 14:21). Primary concern here is to prohibit Israelites from eating such food, and perhaps only incidentally to provide for sojourners.

96. Lev 19:10; 23:22.

97. YHWH is characterized explicitly as “compassionate” in Exod 22:27. See Psalm 145:9 & Sirach 18:13, which emphasize YHWH's compassion for all creation.

98. Ruth may not have been completely destitute. She and Naomi, her mother-in-law, may have inherited property from their husbands. See Ruth 4:5, Hebrew text. But no one would have planted her or Naomi's fields while they were in Moab. Both therefore needed assistance. See Hiers, Richard H., Transfer of Property by Inheritance and Bequest in Biblical Law and Tradition, 10 J. L. & Relig. 121, 130–138 (1993–1994)Google Scholar.

99. Ruth 2:1-23.

100. For appraisals of contemporary “workfare,” see Stulberg, Robert B.et al., Is Workfare Working? A Panel Discussion Sponsored by the Association of the Bar of the City of New York, April 19, 1999, 8 J. L. & Policy 107–177 (1999)Google Scholar.

101. See Deut 26:1-11.

102. See Gaster, Theodor H., Festivals of the Jewish Year: A Modern Interpretation and Guide 59–98 (Sloan 1968)Google Scholar.

103. Deut 16:15.

104. Deut 16:14. See Gaffhey, Edward McGlynn Jr., The Interaction of Biblical Religion with American Constitutional Law, in Johnson, James Turner ed., The Bible in American Law, Politics, and Political Rhetoric 93 (Fortress Press 1985)Google Scholar. Compare Deut 12:10-19, mandating that various other sacrificial offerings presented at the central shrine be shared with sons, daughters, male and female servants, and “the Levite who is within your towns.” Here there is no mention of sojourners, orphans, or widows.

105. We see a late-biblical instance of provision for the poor at the feast of weeks (or Pentecost) in Tobit 2:1-2: “Upon seeing the abundance of food [prepared in observance of this feast] I said to my son, ‘Go and bring whatever poor man of our brethren you may find who is mindful of the Lord …’” Here again we see a religious test applied as to prospective welfare recipients.

106. Deut 16:11, 14-15 (“you and your son and your daughter, your manservant and your maidservant, the Levite, the sojourner, the fatherless, and the widow who are within your towns”). The formula, “the place which YHWH your God will choose, to make his name dwell there,” found throughout Deut 12-19, was intended to designate the temple in Jerusalem. (The temple had not yet been constructed when YHWH was giving Moses “the law” in the wilderness between Egypt and the land of Canaan.) As to the cultic, legal, and political innovations associated with the Deuteronomic Reform, see Levinson, supra n. 36.

107. According to Deut 16:1-9, the Passover also was to be eaten “at the place which YHWH your God will choose.”

108. See Exod 23:14-17; 34:18-24. Prior to the Deuteronomic reform, these festivals probably had been observed at the many local shrines scattered throughout the lands of Israel and Judah. Deuteronomy 16:16-17 evidently embodies vestiges of such earlier law, but without explaining how these festivals were to be observed only by males and at the same time by all the others mentioned in Deut 16:11 & 14. The provisions in H for these three festivals do not indicate whether males only or the whole population were to participate in them. Lev 23:4-21, 37-41. The H law says nothing about either a central shrine, or about including sojourners, orphans, widows, Levites or other needy persons in the celebrations. The Holiness Code probably ante-dates the Deuteronomic Reform. Here as in several other instances, the Deuteronomic law (here, probably DR) expresses a greater measure of compassion for those in need than appears in similar provisions found in other biblical law codes. The PC contains elaborate requirements for conducting these and other festivals. However, PC laws say nothing about including the poor, sojourners, orphans, or widows among those who were to partake of the offerings on these or other occasions. See e.g. Num 29-30. Nor does the Passover law, found mainly in the PC, include any provisions requiring sharing food with the poor.

109. Deut 12:2-14.

110. Deut 18:6-8.

111. In addition to Deut 16:11, 14, see Deut 12:19; 14:29; 18:1; & 26:13.

112. Deut 14:28-29.

113. In biblical times it evidently was possible to store grain for many years. Genesis 41 describes the seven-year grain storage program Joseph established in Egypt. See also Lev 25:2022, discussed in text accompanying n. 94, which contemplates storing a year's crop for two additional years.

114. Deut 26:13-15.

115. See Weinfeld, supra n. 31, at 152-178.

116. Exod 23:10-11.

117. In its terms, Lev 25:1-7 applies only to fields and vineyards. Food produced by the “sabbath of the land” would provide for each immediate family, slaves, hired servants and sojourners (as well as livestock and wildlife), but there is no mention of the poor as such.

118. 25:5.

119. 25:6.

120. The third and seventh years would coincide every twenty-one years.

121. In addition, both wildlife (“the beasts”) and domestic animals (“cattle”) would partake of this bounty. For them, all the land's yield “shall be for food.” Lev 25:7.

122. Lev 25:8-17.

123. Lev 25:11-12.

124. According to Lev 25:8-11, the year of jubilee would follow immediately after the forty-ninth year, which would have been a sabbatical year under the provisions of Lev 25:1-7. Thus there would be no cultivation or sowing during either the forty-ninth or the fiftieth year. It is not clear that the fiftieth-year observance was meant to provide food for the poor. Nor is it certain that the jubilee year's provisions were ever actually carried out. See Westbrook, Raymond, Jubilee Laws, 6 Israel L. Rev. 209 (1971)Google Scholar. Westbrook suggests that the jubilee laws are found only in “a late stratum” of the Holiness Code, and notes that these laws are “not at all mentioned elsewhere in the Bible.” Id. at 225. Numbers 36:4 at most is a vague and passing reference. As to other possible traces of the jubilee year see Fager, Jeffrey A., Land Tenure and the Biblical Jubilee 3336 (Journal for the Study of the Old Testament, Supp. no. 155, Sheffield Academic Press 1993)Google Scholar (finding that such traces fail to show that the jubilee year was ever actually observed). But see Weinfeld, cited in n. 31, at 178.

125. Deut 15:1-6, 9. Deut 15:9 cautions against withholding assistance to a “poor brother” just because the seventh year, when all debts would be forgiven or redeemed, was near. This seventh year release from debt, described in Deut 15:1-2, would have benefited the poor, but was not established solely for their benefit. It applied to all Israelites, but not to foreigners. (Deut 15:3). See Brin, supra n. 42, at 86-87.

126. See e.g. Prov 14:21b ([H]appy is he who is kind to the poor”), and 19:17 (“He who is kind to the poor lends to YHWH, and he will repay him for his deed”). And see Prov 21:13; 28:27; 31:20. See Job 31:16-20, 32, where Job recites his good deeds on behalf of the poor, widows, orphans, and sojourners. See Sirach 3:30; 4:1, 3-5, 8; 7:10, 32; 12:3; 17:22; 29:8-9, 1213; 34:21; 35:2; 40:17, 24; and Tobit 1:16-17; 4:7-11, 16-17; 12:8-9. A few texts likewise point to individual responsibility for sheltering the poor and clothing the naked. See e.g. Isaiah 58:7; and Ezek 18:7, 16.

The author of the epilogue to the story of Job lampoons the practice of giving gifts to the wealthy (or “welfare for the rich”). Only after Job's colossal fortunes had been restored (and then doubled) do his friends and relations—conspicuous by their absence throughout his time of suffering—come to offer him sympathy and comfort, and only then did each of them give Job “a piece of money and a ring of gold.” (Job 42:10-11). See Prov 22:16 (“He who gives to the rich, will only come to want”). See Prov 14:20 & 19:4. Compare Ivins, supra n. 12, at 17-19, and Michael Harrington, Keynesianism for the Rich (ch. 5), in his book, The Next Left (Henry Holt & Co. 1986)Google Scholar.

Several NT texts also call for giving to or otherwise acting for the benefit of the poor. See e.g. Matt 19:21; Mark 10:21; Luke 18:22; Matt 25:31-45 (the hungry, thirsty, strangers, naked, sick, and imprisoned); Luke 6:30a (“Give to every one who begs from you”); 12:33a (“Sell your possessions, and give alms”); Acts 2:44-45; 4:32-35; Heb 13:16; James 2:1-6, 14-17; 1 John 3:17. As to Jesus' sayings in Luke, see Hiers, Richard H., Friends by Unrighteous Mammon: The Eschatological Proletariat, 38 J. Am. Acad. Relig. 30–36 (1970)CrossRefGoogle Scholar.

127. It has been suggested that this law is illustrated in the story of Ruth, where the go 'el (or nearer kinsman) and Boaz are discussing which of them should redeem the property in question. But in that story, “the brother” had not become poor; he had died. Naomi and Ruth were widows, but not necessarily poor. They were planning to sell the property inherited from their husbands, but had not yet sold it. Of course, by purchasing it, the go'el or Boaz would have obviated the need for subsequent redemption.

128. Lev 25:26-27. See Westbrook, Raymond, Redemption of Land, 6 Israel L. Rev. 367 (1971)Google Scholar.

129. Lev 25:28. There is no indication what would happen if the “brother” were to die before the jubilee year. Would the property be returned to his heirs, or would it remain in the hands of the buyer? The fact that such obviously critical questions are not addressed suggests that the jubilee law was more a visionary ideal than an actual practice. See supra n. 124.

130. Lev 25:35-36.

131. lev 25:36-37.

132. See supra nn. 47, 47 and accompanying text.

133. Deut 15:1-3 requires creditors to release all “neighbor's” or “brother's” debts “at the end of every seven years.” The debtors in question would not necessarily be poor; in fact, Deut 15:4 contemplates the absence of poor in the land. This law evidently applied to borrowed money or property, not to those who had sold themselves into service. Modern bankruptcy law could be compared to seventh-year debt forgiveness. Both provisions allow the debtor to make a fresh start, rather than remain forever burdened by obligations to creditors.

134. Lev 25:39-55.

135. See Lev 25:41, 54. The status of the brother's wife is not indicated.

136. Lev 25:39-40, 43.

137. Compare Exod 21:7-8 (redemption of a daughter sold as a slave or servant), discussed in text accompanying notes 195-202.

138. Lev 25:42.

139. Lev 25:31. Under terms of Lev 25:25-28, the “brother's” property would be restored to him, debt-free, in the jubilee year.

140. Lev 25:47-55.

141. Lev 25:48-49. The named relatives who might so redeem him include, in the order listed: a brother, uncle, cousin, or “a near kinsman belonging to his family.”

142. It is unclear whether the understanding was that the brother/servant would be paid wages. That he might somehow grow rich enough to redeem himself (Lev 25:49) suggests either that he would have received wages—as might be expected in the case of a hired servant—or else that he would have had some time free for independent economic pursuits.

143. See supra n. 72 and accompanying text.

144. See supra n. 124.

145. See Westbrook supra n. 124, at 221-224. Patrick speculates that the H legislation (Lev 25:35-43) was later than both the Exodus and Deutemomic laws, that “slave owners were not abiding by this older law and that H was attempting to work out a compromise,” Patrick, supra n. 31, at 184.

146. See text accompanying nn. 179-192.

147. De Vries, supra n. 14, at 174. “Sane” is a crypto-normative expression, that is, a normative judgment in the guise of naturalistic, and in this instance, psychological, language. Here “sane” functions as surrogate for “good.” See infra n. 148.

148. See Hiers, Richard H., Normative and Ostensibly Norm-Neutral Conventions in Contemporary Judicial Discourse 14 Legal Stud. Forum 107 (1990)Google Scholar.

149. Deut 25:5-10.

150. Deut 25:6. See Ruth 4:10.

151. Interpreters have suggested that in the story of Ruth, the nearer kinsman or go'el declined to purchase his deceased relative's property because, if thereby also compelled to marry the Ruth, a son from this marriage would eventually inherit that property and the go'el or his estate would lose the price of its purchase. See Hiers, supra n. 98, at 134-138.

152. See Ruth 4:15. Here it is said of die levirate son: “He shall be to you are restorer of life and a nourisher of your old age.”

153. Here, under biblical law, a woman has legal standing to testify in or before a court. See Deut 21:18-21 (both parents to testify to “the elders … at the gate” against an ungovernable son); and Deut 22:13-21 (both parents of a new bride charged with prior promiscuity to present evidence to “the elders” in “the gate”). See Tobit 7:14 (both Raguel and his wife, Edna, set their seals to a marriage contract). The question of women's legal competence in biblical times is discussed briefly by Silvia Schroer, supra n. 75, at 122-123.

154. Deut 25:9. She also was to pull the sandal from his foot and, after spitting in his face, declare, “[s]o shall it be done to the man who does not build up his brother's house.” Deut 25:9; see Deut 25:10.

155. Gen 38.

156. Disguising herself as a prostitute, Tamar easily seduced Judah, who thereby unwittingly substituted for his sons in the role of levir.

157. Ruth 3:3-13.

158. Ruth 3:3-13.

159. Some scholars urge that the procedures described in Ruth 3-4 are not properly characterized as levirate marriage, since, for one thing, here the decedent's nearest kinsman rather than brother has the duty to marry the widow. The practice described in Ruth probably should be regarded as either an early version or a later extension of the law of levirate marriage set out in Deut 25:5-10. As in the story of Judah and Tamar, in Genesis 38, since no levir was available, the family responsibility fell upon the deceased's nearest male kinsman. In the case of Tamar, the deceased's father (unknowingly) filled that role. In Ruth's case, her late husband's father also was dead, so the duty devolved upon the deceased husband's nearest, surviving, adult kinsman. The plot in the story of Ruth is complicated by the fact that Boaz is not the nearest kinsman. Boaz—who wishes to marry Ruth—undertakes, before the elders at the gate, to induce this nearest kinsman, commonly designated “the go'el to waive his claim by hinting that no one would want to marry “the widow.” See Daube, supra n. 122 and Leggett, Donald A., The Levirate and Goel Institutions in the Old Testament: with Special Attention to the Book of Ruth (Mack Publg. 1974)Google Scholar.

160. See Ruth 1:11-13. Curiously, it is not a question here of Naomi's marrying her brother-in-law or her deceased husband's nearest kinsman. Instead, when Naomi contemplates the unlikely prospect of re-marriage in order to produce sons whom her widowed daughters-in-law might eventually take as husbands, she refers simply to “a husband,” as if the critical matter would be for her daughters-in-law to marry—were it possible—her sons. For the suggestion that Naomi is the widow first expected to marry a levir, kinsman, or go'e. Daube, supra n. 159, at 3743.

161. Ruth 4:14-15 (emphasis added). See Ruth 4:17a: “And the women of the neighborhood gave him a name, saying ‘A son has been born to Na'omi’.” (emphasis added).

162. The law and practice of levirate marriage apparently had been abandoned by the time of early Christianity. (But see Matt 22:23-33; Mark 12:18-23; Luke 20:27-40, which report a question that hypothetically recalls the practice of levirate marriage.) However, children, grandchildren, and other relatives still were expected to care for widows. 1 Tim 5:3-8, 16. The church also would provide assistance (Acts 6:1-6; 1 Tim 5:16), at any rate to righteous and elderly widows. 1 Tim 5:9-10. Younger widows were encouraged to re-marry. 1 Tim 5:11-15.

163. Lev 25:39-43, 47-55.

164. Lev 25:44-46. As an example, see Judith 8:7: Her deceased husband had “left her … men and women slaves.” Possibly non-Israelite slaves might also pass to heiresses under the law of intestate succession in Num 27.

165. Exod 21:21 probably refers to non-Israelite slaves. Hebrew slaves are distinguished in Exod 21:1-6 & 21:7-11, where they clearly are recognized as having certain rights or interests as persons. See text accompanying nn. 163-192. Boecker speculates that the majority of slaves—presumably meaning non-Israelite slaves—“were recruited from the ranks of prisoners of war,” Boecker, supra n. 31, at 157. Burrows, supra n. 883, at 303, nn.39 & 40, lists biblical texts indicating that foreign slaves were acquired both by capture (Deut 20:10-18; Joshua 9:3-27; Judges 1:28, 30, 33, 35) and by purchase (Gen 17:12; Exod 12:44; Lev 25:44-46).

166. Exod 20:8-II; 23:12; Deut 5:12-15.

167. And refreshment, Exod 23:12.

168. Lev 25:6.

169. See Patrick, supra n. 31, at 133.

170. Deut 23:15-16. Under this law, arguably, Paul ought not have returned Onesimus to Philemon. See Philemon w. 10-21. Perhaps Paul felt the law no longer binding. However, it is not certain that Onesimus actually was a “runaway slave,” though commentators often so assert. At any rate, Paul called on Philemon to give Onesimus his freedom.

171. See Hamilton, supra n. 31, at 117-121. Hamilton suggests that the biblical fugitive slave law, which allows a slave, whether Israelite or foreigner, to “escape with impunity … calls into question the legitimacy of slavery everywhere, even within Israel.” Id. at 119-120.

172. Judith 16:23-24.

173. Exod 21:26-27. See Yaron, supra n. 48, at 36: “As further examples of biblical rules as yet without parallel in the ancient Near East, we may point to a series of provisions concerning slaves … [in Exodus and Deuteronomy]. They all display a markedly humane tendency.” Exodus 21:20 imposes “liability upon a master who beats his slave or maid-servant to death.” Another example is “the provision decreeing manumission of a slave or maid-servant, whose eye or tooth has been destroyed by his master.” (Exod 21:26-27).

174. See Boecker, supra n. 31, at 162-163: “There is no prescription in the CH [Code of Hammurabi] comparable with Exod 21:26-27. In fact, no other ancient eastern code discusses an injury to his own slave by the slave's master. They all regard the slave essentially as a possession, damage to which [only] reduces its value for the slave-owner …. There is practically no trace [in the biblical law] of the idea that the slave is property of his owner. He has rights of his own, particularly, the right to bodily integrity.”

175. Lev 25:39-55.

176. See text accompanying nn. 135-148.

177. See Rasor supra n. 14, at 177.

178. Id. See Cohn supra n. 41, at 56: “A ‘Hebrew’ … could become a slave either by order of the court on conviction of theft, if he was unable to make restitution (Exod 22:2), or by giving himself into bondage because of his inability to pay his debts (Lev 25:89) …. It was against the law to acquire a Hebrew slave in any other way (Lev 25:42).” But see Jer 34:13-14 (referring to the sale of Hebrew slaves). Cohn notes related texts at Prov 22:7; Isaiah 50:1; and Amos 2:6 & 8:6 (condemning those who would buy or sell the poor and needy for silver or a pair of shoes or sandals). Id. at 56. Burrows, supra n. 88, at 303 n.38, identifies other texts indicating voluntary or involuntary enslavement for debt: Lev 25:47-55; 2 Kings 4:1; and Neh 5:5-8.

179. Since neither law addresses the question, it apparently made no difference whether the slave's owner was an Israelite or a sojourning foreigner. But see Jer 34:14, which could be read to mean that a Hebrew might be owned by a non-Israelite, and that only Israelite slave owners were obliged to free Hebrew slaves after six years. It could be imagined that slave owners might have tried to evade this law by selling their slaves just short of their six years' service. In that case, would the slave have to serve her new master for six more years before she could be freed? Or would service be limited to a total of six years, regardless of the number of owners during that time? Biblical law is silent as to this issue, but the latter prospect seems more probable. Jeremiah 34:8-17 indicates that Israelites (or Judahites) sometimes abused this law and their slaves by taking back those who had been set free.

180. See Blenkinsopp supra n. 33 at 100-101 (comparing Exod 21:2-11 and Deut 15:12-18). “In general, there is so much overlap between the laws in Exfod] 20-23 and those in Deut 12-26 that it is difficult to avoid the conclusion that the latter were intended to replace the former. In the final stages of the formation of the Pentateuch, however, the decision was made to bring together all traditional legal material, irrespective of overlap or differences.” Id. at 100.

181. Exod 21:2-6.

182. It would be possible, but unlikely, that a slave might be married to a free person. But if the wife was free, there would have been no need for the law to stipulate that when the male slave was freed, “his wife shall go out with him.” Exod 21:2-6.

183. As this law stands, there is no suggestion that a female slave, even if given a male slave as her husband, would be freed after she served her master (or mistress) for six years.

184. Deut 15:12-18.

185. Deut 15:12.

186. Deut 15:16-17.

187. It is clear from the context (Deut 15:12, 17) that references to the “bondservant” as “him” were meant to be gender-inclusive, as the NRSV translation properly indicates.

188. Deut 15:15. See Hamilton, Nasuti, and Sonsino supra n. 68 as to “motive clauses.”

189. Deuteronomy 15:18 picks up from vv. 13-14 where the Hebrew bondperson decides to opt for freedom, and the owner is instructed to provide generously for him or her.

190. Deut 15:18. See Zakovitch, Yair, Some Remnants of Ancient Laws in the Deuteronomic Code, 9 Israel L. Rev. 346, 349–351 (1974)Google Scholar, suggesting that the customary period of hired servitude in early Israel was three years, as may be intimated in Isaiah 16:14 and in the Code of Hammurabi.

191. Deut 15:16. Other differences between the two versions of the law include the fact that in Deuteronomy, the ear-piercing ceremony calls for thrusting an awl through the servant's ear and “into the door.” The Exodus version does not include this last feature. Perhaps the Deuteronomic version only specifies what was implicit or understood in connection with the Exodus ceremony. Or the meaning may have shifted so as to symbolize the relation of bondage between servant and the owner's house. In Deuteronomy, “the door” seems to be that of the householder, and there is no mention that the ceremony was to take place “before God.” Possibly this alteration was one of the several accommodations or institutional adjustments to the closure of the local cult shrines that were incorporated into the laws found in Deut 12-19. Thus Levinson, supra n. 36, at 111-112. On differences between the CC and Deuteronomic laws, see Patrick, supra n. 31, at 111-113 (concluding, “overall, servitude has been reduced to ownership of a person's labor, not of the person”). Id. at 113.

192. Cf. Lev 25:39-43, 47-55. Possibly the Deuteronomic law was intended to over-ride the provision in Lev 25:39-43 concerning Israelites who sold themselves as slaves to other Israelites. Under the H laws, those slaves (and their children) would not be freed until the jubilee year. Alternatively, the Deuteronomic law may have been meant to apply only in cases where Hebrews who already had become slaves were sold to Israelites. As to Jeremiah's report concerning King Zedekiah's mandatory manumission of Hebrew slaves and the Judahites' failure to do so (Jer 34:8-22), see Weinfeld, supra n. 31, at 152-156.

193. Exod 21:7-11.

194. See Patrick, supra n. 31, at 71.

195. But see 2 Kings 4:1, where a creditor comes to take a widow's children as slaves. Compare Ruth 4:5, 10, which refer to “buying” Ruth as wife in order to perpetuate the name of her deceased husband (and/or father-in-law). It is unclear to whom payment would have been made; in fact, there is no indication that any payment was made. Boaz may have been speaking in metaphor, in effect, saying to the go'el, “If you buy the property, you also must marry the widow as part of the deal.” Thus Leggett, supra n. 159, at 216-217. In any event, Ruth was not sold by her father—or by anyone else.

196. Hosea says that he bought (or bought back) a wife or concubine who was already an adulteress, but the text gives no further particulars as to the transaction. Hosea 3:1-3.

197. The Leviticus law, in its terms, however, applies only when a man sells himself as a slave to a stranger or sojourner.

198. If no one redeemed her, the owner might, perhaps, sell her to another Israelite. If the practice embodied as law in Deut 15:12-18 were already in effect, the woman could then gain her freedom after six years of service. In any event, the master may not sell her to a “foreign people.” (Exod 21:8). A sale to a foreigner might result in the woman's being taken from the land of Israel to another land where she would no longer be protected by Israelite law. This provision may also reflect concern to protect the woman from being married to a man who worshiped other gods. Inheritance issues also may be implicated here; see Num 36.

199. Exod 21:9.

200. Anyone who came out of his tent could have been sacrificed as a result of Jephthah's rash and tragic vow. Compare Trible, Phyllis, Texts of Terror 92–116 (Fortress Press 1984)Google Scholar (hinting, perhaps, that the incident is typical of oppression of women in biblical times). Positive attitudes and acts as to daughters are indicated, e.g. in 2 Sam 12:3; Job 42:15; and Prov 13:22. “Daughter” is a term of endearment in Ruth 1:11 -13; 2:8; & 3:10-11.

201. Reference in these circumstances to a purchased wife's rights is noteworthy. “If he takes another wife to himself, he shall not diminish her food, her clothing, or her marital rights.” Exod 21:10. It could be inferred that free married women likewise were understood to enjoy such rights. That a man might have two wives was recognized also in Deut 21:15-17. There it is required that even if he dislikes one of them, he must treat her, or more particularly, her son, fairly.

202. Exod 21:11. This text makes no explicit provision for divorce either in conjunction with any of the three alternative obligations, or as part of the final arrangement if the woman “goes out,” that is, regains her freedom. These requirements are somewhat like those set out in Deut 21:10-14 concerning a man's obligation to a woman taken captive in war. In due course, the captor may make her his wife. But if he has “no delight in her,” he must free her. He must not sell her or treat her as a slave, for he has “humiliated her.” Here, too, there is no specific provision for divorce. In both cases, however, it may have been understood that freeing the woman also included granting her divorce. See Carmichael, supra n. 31, at 135 as to the captive woman law.

203. See e.g. Rauschenbusch, Walter, A Theology for the Social Gospel (Macmillan 1917)Google Scholar; Mathews, Shailer, Jesus on Social Institutions (Macmillan 1928)Google Scholar.

204. See n. 32.

205. Protestant, or perhaps modernist, aversion to law is epitomized in the late Joseph Fletcher's writings on “situation ethics,” supra n. 32. See Rudolf Bultmann's characterization of Jewish and biblical law as relating only to external matters, in contrast to the “radical obedience” preached by Jesus. On Bultmann's position, see Hiers, Richard H., Jesus and Ethics 79–114 (Westminster Press 1968)Google Scholar.

206. See n. 31.

207. See nn. 37, 39, 48, 54, 59-61, 77-78, 82, 87, 92, 178, 179 and accompanying texts. In Jesus' Parable of the Rich Man and Lazarus, the rich man too late realizes his obligation to the poor and needy, but wishes Father Abraham to send someone from the dead to warn his brothers of their like obligation. Abraham denies this request: “If they do not hear Moses and the prophets, neither will they be convinced if some one should rise from the dead.” (Luke 16:31). “Moses,” of course, represents biblical law.

208. See Gaffney, Edward McGlynn Jr., Of Covenants Ancient and New: the Influence of Secular Law on Biblical Religion, 2 J. L. & Relig. 117, 134–137 (1984)Google Scholar. “[I]t can now be concluded that the major function of the later prophets was not to repudiate the law, but to refer back to the covenant tradition and to call the people repeatedly back to the terms of its covenant with YHWH.” See Gardner, E. Clinton, Justice and Ethics 29–44 (Cambridge U. Press 1995)Google Scholar (on relations between biblical law and prophets).

209. See Gaffney, supra n. 208, at 137: “Because the prophetical concerns for social justice clearly influenced the legal tradition, it must be assumed that Israelite law was not antithetical to prophetic religion.

210. See e.g. nn. 39-42, 54, 57, 61, 76, 78, 82, 83, 87, 91, 92, 126, 178 and accompanying texts. See Blenkinsopp, Joseph, Wisdom and Law in the Old Testament: The Ordering of Life in Israel and Early Judaism (Oxford Press 1983)Google Scholar (examining close connections and parallels), and the brief survey of social welfare proverbs by James Limburg. Note, , The Prophets and the Powerless 33–35 (John Knox Press 1977)Google Scholar.

211. See e.g. the writings of Judge Richard Posner. Posner's position is thoughtfully critiqued by Carrier, Laura, Making Moral Theory Work for Law, 99 Colum. L. Rev. 1018 (1999)CrossRefGoogle Scholar.

212. See nn. 23, 24 and accompanying text.

213. Of course self-interested persons can enter into actual agreements, contracts, or covenants in order the better to promote their own as well as their common welfare. See e.g. nn. 7-10 and accompanying text.

214. Wolfson, supra n. 41, at 410-411.

215. See Fromm, Erich, The Heart of Man: Its Genius for Good and Evil 62–77 (Harper & Row 1968)Google Scholar characterizing “benign” and “malignant narcissism.”

216. Proponents of this argument are unable to explain why, conditions permitting, it would not be better simply to let the poor die in misery—the outcome implicit in Ayn Rand's position; or more actively seek to bring about their demise. Unable, that is, without recourse to some further implicit norm, such as the value of human life. Philosophers often define “rational” so as to include this norm, which actually derives from humanistic commitment or faith. See n. 174. Rationality and humanistic faith may be confused in modern (or modernist) thought because both at least indirectly derive from Eighteenth century culture which celebrated not only reason, but human worth and dignity. To what extent Eighteenth century humanistic faith and ethics rested upon Judeo-Christian tradition is not of concern here. No doubt there were also classical antecedents.

217. See Niebuhr, supra n. 290, at 24-31. Niebuhr also characterizes this kind of faith as “social” or “ tribal” faith. Its adherents derive their sense of value from their membership in the group, and are loyal to it as their “center of value.” He cites nationalism as an example.

Nationalism shows its character as a faith whenever national welfare or survival is regarded as the supreme end of life; whenever right and wrong are made dependent on the sovereign will of the nation, however determined; whenever religion and science, education and art, are valued by the measure of their contribution to national existence.

Id. at 27. See also Fromm, cited in n. 215 at 78-94, on the character and perils of “social narcissism.”

218. As to women, see nn. 37, 50, 63-80, 91, 92-106, 113-121, 150-162, 164, 166-174, 187-192, 194-202 and accompanying text.

219. “Certainly the Chinese government is not likely to be persuaded to embrace human rights by references to the Bible.” Blumenson, Eric, Who Counts Morally? 14 J. L. & Relig. 1, 39 (1999–2000)Google ScholarPubMed (reviewing, but in this instance caricaturing and significantly misrepresenting Michael Perry's position in Michael J. Perry, supra n. 28).

220. Hamilton offers a number of constructive comments in this connection, Hamilton, supra n. 31, at 139-158. See Gowan, supra n. 31, at 353; Fager, supra n. 124, at 122 (suggesting potential commonality between biblical and modern “community's moral imperative toward its economically vulnerable members”). Without focusing directly on biblical law or covenant, Eric Mount, Jr., offers an insightful critique of a number of current issues in his recent book, Covenant, Community, and the Common Good: An Interpretation of Christian Ethics (Pilgrim Press 1999)Google Scholar. See especially ch. 4, “Covenants of Work, Family, and Welfare,” id. at 80-106.

221. See Newman, Louis E., Covenant and Contract: A Framework for the Analysis of Jewish Ethics, 9 J. L. & Relig. 89 (1991)CrossRefGoogle Scholar. “Doing God's will, then is a way, perhaps the only adequate way, for the Israelites to demonstrate their gratitude.” Id. at 95. “The moral duty to express gratitude to one's benefactor would appear to be the basis for all legal duties under the covenant.” Id. at 103. Gratitude is certainly one aspect of the biblical understanding of the proper relationship between God or YHWH and his people, as is indicated in several of the “motive clauses.” See n. 60 and accompanying text. Other aspects of that relationship include trust or confidence, loyalty or devotion to him, and caring attitudes and responsive actions-as expressed in particular biblical laws—as to other persons. See Wolfson, supra n. 41, at 417, 421, 423, & 426. See Gardner, supra n. 5, at 409-410.

222. As to rights as a feature of biblical tradition, see nn. 41, 78, 94, 165, 174, 201 and accompanying texts.

223. See Niebuhr, supra n. 29, at 101-126. For persons who place their confidence or trust in humankind and devote themselves to human well-being, humanity constitutes such a transcendent center of value. All humanity, of course, transcends the self. Such humanism functions as religion. Much of classical, modern, and post-modern thought reflects this kind of confidence and devotion, though the religious character of such faith and ethics is generally unacknowledged or denied. Humanism is, obviously, more inclusive than tribal faith/ethics systems, such as racism or nationalism. But humanism is less inclusive than the faith and ethics of reverence-for-life. See Hiers, supra n. 70. The limits of humanistic faith and ethics pose many problems: for instance, do only those now alive count, or those who may be born in future generations? Those just conceived, or still in utero? The comatose? It is also a question whether humanistic faith and ethics can be self-sustaining, that is without a transcendent, theistic grounding. And clearly humanism, like theistic religions, can be corrupted when its avowed adherents seek above all what is good for their particular groups or communities, e.g., their own nation, race, or class. Such issues need not be addressed here. It may be enough to observe that human beings are not, as such, committed humanists. Not everyone cares about their own family or neighbors, let alone human welfare more inclusively. But humanistic faith and ethics is implicated when people of whatever philosophical or jurisprudential school affirm that what is good is what is good for human beings.

224. Id. at 24-63.

225. Thus in the first creation narrative, God is said to have affirmed that all he had made is “very good.” Gen 1:31. As the story is told, YHWH's covenant with Noah—the first and most comprehensive of biblical covenants—was also made not only with humankind, but also with every kind of living creature for all future generations. Gen 9:8-17. See Hiers, supra n. 70, at 134-138. Many of the psalms celebrate YHWH as the creator of all that is, and praise him for his care for all creation. See e.g. Psalms 136, 145, 147 & 148. Such “radical monotheism” also comes to expression in such classical texts as Isaiah 40:12-31; 45:18-23; 46:1-11; and the book of Jonah. See n. 74.

226. Such tendencies also appear in many biblical texts, necessarily in conflict or tension with more inclusive expressions of faith and ethics. See e.g. Deut 20:10-18; Psalm 137:7-9; and Isaiah 13:1-20.