By Nate Labadorf
Part 1—Start with America
April 19th, 1775
[SFX: Cannon fire]
This day in history marked the beginning of the American Revolutionary war. At Lexington and Concord, the American militia fought of the well-trained British Army. The British made a number of tactical errors which forced them to retreat. And so started the American Revolution.
[SFX: Fife and Drum]
A little over a year later, July 4th, 1776, the Continental Congress met together and drafted a document by the hand of Thomas Jefferson in which they declared their independence from Brittan.
[Music: Scott Holmes / Humanity]
This was the Unanimous Declaration of the Thirteen United States of America. And it started a long history of literature which, which you could say defines American—which makes America what it is.
[SFX: American Montage]
Now there are many more words, speeches, and documents which could be added to this list. These are some of the things which identify America as America. But there is an older nation—a deeper, richer, much more beautiful nation. A heritage of people surpassing current international borders. A Christian nation: The Kingdom of God.
Part 2—Shift to Kingdom of God
[Music: Scott Holmes / Together We Stand]
[SFX: Christian Montage]
This book, the Bible, encapsulates for us Christians not just our religious history but national history as well. From the Garden of Eden, where God blessed Adam and Eve with dominion, through the establishment of the nation of Israel, God has been shaping a people to be his “treasured possession out of all the peoples . . . a priestly kingdom and a holy nation.” But the nation of Israel could not keep the foundational covenant the Mosaic Covenant. They needed a covenant that would revolutionize their hearts.
Suddenly, the revolution began. “When the fullness of time had come, God sent his Son, born of a woman, born under the law, in order to redeem those who were under the law” (Gal 4:4). He became the priest after Melchizedek so that he could “become the guarantee of a better covenant” (Heb 7:22).
“For if that first covenant had been faultless, there would have been no need to look for a second one. 8 God finds fault with them when he says: “The days are surely coming, says the Lord, when I will establish a new covenant with the house of Israel and with the house of Judah; 9 not like the covenant that I made with their ancestors, on the day when I took them by the hand to lead them out of the land of Egypt; for they did not continue in my covenant, and so I had no concern for them, says the Lord. 10 This is the covenant that I will make with the house of Israel after those days, says the Lord: I will put my laws in their minds, and write them on their hearts, and I will be their God, and they shall be my people. (Heb 8)
Jesus did this so that he might create “a chosen race, a royal priesthood, a holy nation, God’s own people, in order that [we Christians] may proclaim the mighty acts of him who called [us] out of darkness into his marvelous light. Once [we] were not a people, but now [we] are God’s people; once [we] had not received mercy, but now [we] have received mercy” (1 Pet 2:9-10).
This is not a kingdom without laws. Indeed, it is the opposite. We have laws—but unlike the old covenant laws written on stone, these laws are written on our hearts. In some way, they reflect the old covenant laws because they will rest on two foundational laws: love the Lord your God and love your neighbor as yourself.
But the question is, how do we interpret the laws? Because Paul makes it clear that we are not subject to them. The answer is found on the lips of our King. Jesus gives us the right method for interpreting and using the OT laws.
Part 3—Common-law Verses Statutory Law
Before we get to the words of Jesus, we need to talk some legal theory. Hey, I’ll que up some Beethoven and light a fire in my library. And then, let’s sit in plush armchairs feeling sophisticated and smart.
[SFX: Fire Sounds]
[SFX: Start Record]
[Music: Borromeo String Quartet / BEETHOVEN – String Quartet No. 3 in D Major, Op. 18, No. 3 / Selections, Summer 2012]
[SFX: Chair Squeak]
Ah, that’s more like it. So now, where were we?
Do remember in the last episode where we talked about German law? How Jacob Grimm built German law based in part on ancient legends? And how this was a classic move for common-law theorists? Now, every nation state has its own way of doing law. But in general, there are two basic approaches to how the law is understood and applied. There is the common-law system and the statutory law system. Let me read to you P. Devlin’s distinction between common-law and statutory law. I know I read it before, but it bears repeating.
The [statutory] code articulates in chapters, sections, and paragraphs the rules in accordance with which judgments are given. The common-law on the other hand is inarticulate until it is expressed in a judgment. Where the code governs, it is the judge’s duty to ascertain the law from the words which the code uses. Where the common-law governs, the judge, in what is now the forgotten past, decided the case in accordance with morality and custom and later judges followed his decision. They did not do so by construing the words of his judgment. They looked for the reason which had made him decide the case the way he did, the ratio decidendi as it came to be called. Thus it was the principle of the case, not the words, which went into the common-law.
When It came to Israel’s laws, another scholar William Morrow says this:
In common-law, the application of law by judges and other legal decision makers is guided by a knowledge of legal precedents and broad principles rather than strictly by legislation. The legal principles relevant to ancient Israel were probably not embodied exclusively in collections of instructions. They were also contained in stories and conveyed through oral tradition.
The purpose of this series is to see which system God wants us to use as an interpretive framework for Old Testament law. How do these observations apply to our question? Our understanding of the OT law hinges on whether they were meant to be strictly enforced according to the letter or if they were meant to serve as guides for judicial decisions.
If they were strict absolutes as in the statutory system, then we run into the moral problems. For example, why did God not kill David when he both slept with Bathsheba and killed Uriah? Under the statutory system, David should have died twice, because that was the punishment. But God forgave him. But other times God carried out the full penalty of the law and more like in the case of Achin. If God follows the statutory system, then it seems that he plays favorites and God’s buddies get off the hook.
But in the common-law system, we also have problems. Deuteronomy clearly states: “You must neither add anything to what I command you nor take away anything from it, but keep the commandments of the LORD your God with which I am charging you” (Dt 4:2; cf. 12:32). If God then expects you to reason beyond the commands of Scripture, how then is this not adding to God’s words?
The system of law, then, is important to understand from a Christian theological perspective. Here is my proposal: in order for us to decide which law system was used, we need to look at how Jesus interpreted the law. How will we do this? We will look at Jesus’s sayings regarding the law through the matrix of the attributes of the common-law system. In other words, we will find four points which identify a system as common-law and read Jesus’s words from that perspective.
When it comes to common-law, there are four aspects of this system which stand out. First, the judges make legal decisions based on the spirit of the community (volkgeist). The reference point for the judges was not a written set of laws but the gradual “distillation and continual restatement of legal doctrine through the decision of the courts.”  Second, the role of previous legal decisions were records of non-binding precedent. The written record of these decisions “formed a system of reasoning” but not an absolute code. Third, the legal codes changed with changing circumstances. Law codes were filtered through the courts and refined in order to meet the change in times. Fourth, since volkgeist was important, judges could draw from various folk elements (parables, stories, etc. ) to make their decisions.
So, did Jesus use these for methods of interpretation? Let’s take four scenarios from the life of Jesus to determine what he thought of the law.
Jesus on Divorce
We are going to start with an easy test case first. Moses wrote a command in Deuteronomy 24:1-4:
Suppose a man enters into marriage with a woman, but she does not please him because he finds something objectionable about her, and so he writes her a certificate of divorce, puts it in her hand, and sends her out of his house; she then leaves his house 2 and goes off to become another man’s wife. 3 Then suppose the second man dislikes her, writes her a bill of divorce, puts it in her hand, and sends her out of his house (or the second man who married her dies); 4 her first husband, who sent her away, is not permitted to take her again to be his wife after she has been defiled; for that would be abhorrent to the LORD, and you shall not bring guilt on the land that the LORD your God is giving you as a possession.
Interestingly, we have a certificate of divorce roughly from that time. It is from the city of Ugarit and it certifies that the King was divorcing his Hittite wife. The most interesting part, just because it is so human, is the reason for the divorce. He divorces her because, I quote, “muruts qaqadi” or in English: “she gives me a headache.” Check the show notes for the link to that document.
Fast forward some 1200 years to when the Pharisees came up to Jesus.
3 Some Pharisees came to him, and to test him they asked, “Is it lawful for a man to divorce his wife for any cause?” 4 He answered, “Have you not read that the one who made them at the beginning ‘made them male and female,’ 5 and said, ‘For this reason a man shall leave his father and mother and be joined to his wife, and the two shall become one flesh’? 6 So they are no longer two, but one flesh. Therefore what God has joined together, let no one separate.” 7 They said to him, “Why then did Moses command us to give a certificate of dismissal and to divorce her?” 8 He said to them, “It was because you were so hard-hearted that Moses allowed you to divorce your wives, but from the beginning it was not so. 9 And I say to you, whoever divorces his wife, except for unchastity, and marries another commits adultery.”
So how does Jesus argue here? How does he make his point? First, notice, he directs their attention back, not to the law in Deuteronomy 24:1-4, but to the creation story in Genesis 1. He says that divorce is simply not an option based on the story of Adam and Eve. So, back to our main question. What system of reasoning does this follow? Well, if it were a statutory system, we should see a detailed explanation and understanding of the exact legal code itself. But we get none of that. Instead, we get reference to a story as the authority. This reference to a story meets the fourth criterion of a common-law system. Namely, to make a valid legal point, the judge (in this case Jesus) does not need to cite only legal code, but he can cite stories from the nation’s history as well. This methodology creates from the ideal of Genesis 1 a methodology or system of reasoning by which one can evaluate other laws. The divorce law, because it allows for the non-ideal, must have some other foundation other than it being sanctioned by God. Jesus gives this reason saying that it was because the hardness of people’s hearts that this law was made. This argument follows the second criterion of common law: the record sets up a system of reasoning rather than strict legislation. Jesus, then, viewed at least parts of the Mosaic Law from a common law viewpoint. Jesus translates and fulfills the Mosaic law into the Law of Christ in the Kingdom of God through the method of the common law. It is not the statutory nature of the law that comes through. It is the system of reasoning with the use of the stories that constitute legal reasoning for Jesus’s new Nation.
The Sermon on the Mount
But how much and which parts of the Law did Jesus view this way? His words near the beginning the of the Sermon on the Mount certainly seem extremely strict.
Matthew 5:17-20 “Do not think that I came to abolish the Law or the Prophets; I did not come to abolish but to fulfill. For truly I say to you, until heaven and earth pass away, not the smallest letter or stroke shall pass from the Law until all is accomplished. Whoever then annuls one of the least of these commandments, and teaches others to do the same, shall be called least in the kingdom of heaven; but whoever keeps and teaches them, he shall be called great in the kingdom of heaven. For I say to you that unless your righteousness surpasses that of the scribes and Pharisees, you will not enter the kingdom of heaven.”
But notice what he does. He pushes his audience to think beyond what the Pharisees were able to achieve. Now, we know that if there was anything the Pharisees were about, it was about the exact letter of the law. But Jesus wanted his followers to exceed even that. How? Well, he tells you how in the next several verses. Mat 5:21 “You have heard that the ancients were told, ‘YOU SHALL NOT COMMIT MURDER’ and ‘Whoever commits murder shall be liable to the court.’ “But I say to you that everyone who is angry with his brother shall be guilty before the court” etc. Then he talks about adultery, divorce, vows, and revenge.
Jesus moves beyond the written law very quickly and gets to the intention of the command. He doesn’t want people to simply think of words on the page, but the reason that the law was given. Hatred is illiegal because it is the root of murder. Lust is illegal because it is the beginning of adultery. When Jesus moves beyond the written code and drives to the intention behind the code, he is using the first criterion of common law.
There are also a few things where it appears that Jesus reverses the commands given in the Pentateuch. In reference to vows, he says, “Again, you have heard that the ancients were told, ‘YOU SHALL NOT MAKE FALSE VOWS, BUT SHALL FULFILL YOUR VOWS TO THE LORD.’ “But I say to you, make no oath at all, either by heaven, for it is the throne of God.” Also, in reference to the lex talons he says, “You have heard that it was said, ‘AN EYE FOR AN EYE, AND A TOOTH FOR A TOOTH.’ But I say to you, do not resist an evil person.” If we adopt Jesus’s sayings as strict statutory-law, then we would have to say that Jesus contradicted the earlier command and that he directly annulled the earlier law. In this interpretation, then, Jesus was not speaking the truth when he claimed that he did not come to annul the Law. Now, we have serious problems with this as Christians because it makes Jesus out to be a liar. But, if we look at it from a common law position, Jesus could amend the earlier code while also keeping it established. In common law, the third principle that laws change to meet changing circumstances fits right in here. The circumstances of the advent of Grace was here. Therefore, the laws strict though they were, were no longer relevant to Jesus’s audience.
Jesus Lord of the Sabbath
My favorite and I think the clearest example of Jesus using the common law system comes from when Jesus’s disciples picked and ate grain on the sabbath. Here is how the narrative unfolds.
At that time Jesus went through the grainfields on the Sabbath, and His disciples became hungry and began to pick the heads of grain and eat. But when the Pharisees saw this, they said to Him, “Look, Your disciples do what is not lawful to do on a Sabbath.” But He said to them, “Have you not read what David did when he became hungry, he and his companions, how he entered the house of God, and they ate the consecrated bread, which was not lawful for him to eat nor for those with him, but for the priests alone? “Or have you not read in the Law, that on the Sabbath the priests in the temple break the Sabbath and are innocent? “But I say to you that something greater than the temple is here. “But if you had known what this means, ‘I DESIRE COMPASSION, AND NOT A SACRIFICE,’ you would not have condemned the innocent. “For the Son of Man is Lord of the Sabbath.”
Departing from there, He went into their synagogue. And a man was there whose hand was withered. And they questioned Jesus, asking, “Is it lawful to heal on the Sabbath?”—so that they might accuse Him. And He said to them, “What man is there among you who has a sheep, and if it falls into a pit on the Sabbath, will he not take hold of it and lift it out? “How much more valuable then is a man than a sheep! So then, it is lawful to do good on the Sabbath.” Then He *said to the man, “Stretch out your hand!” He stretched it out, and it was restored to normal, like the other. But the Pharisees went out and conspired against Him, as to how they might destroy Him. But Jesus, aware of this, withdrew from there. Many followed Him, and He healed them all, and warned them not to tell who He was.
Jesus mired the Pharisees in the shallowness of their own thinking. Using the story of David, he showed how one man could violate a clear Biblical command in order to sustain life. This fits the fourth element of common law systems—the use of folk elements.
Correcting Abuses of the Common-Law
Yet, in every system, there are abuses. On the one hand, it does seem that Jesus expects us to use the common law system of reasoning and look at the laws through that means. Laws are not strictly absolutes, but points to reason from and make decisions. He wants us to get to the heart of the laws and find out the reason behind the law. Reasoning beyond the law is not a problem. But on the other hand, it becomes a problem when you set aside other laws which are more important. For example, take another run-in that Jesus had with the Pharisees.
7 Now when the Pharisees and some of the scribes who had come from Jerusalem gathered around him, 2 they noticed that some of his disciples were eating with defiled hands, that is, without washing them. 3 (For the Pharisees, and all the Jews, do not eat unless they thoroughly wash their hands, thus observing the tradition of the elders; 4 and they do not eat anything from the market unless they wash it; and there are also many other traditions that they observe, the washing of cups, pots, and bronze kettles.) 5 So the Pharisees and the scribes asked him, “Why do your disciples not live according to the tradition of the elders, but eat with defiled hands?” 6 He said to them, “Isaiah prophesied rightly about you hypocrites, as it is written, ‘This people honors me with their lips, but their hearts are far from me; 7 in vain do they worship me, teaching human precepts as doctrines.’ You abandon the commandment of God and hold to human tradition.”
9 Then he said to them, “You have a fine way of rejecting the commandment of God in order to keep your tradition! 10 For Moses said, ‘Honor your father and your mother’; and, ‘Whoever speaks evil of father or mother must surely die.’ 11 But you say that if anyone tells father or mother, ‘Whatever support you might have had from me is Corban’ (that is, an offering to God)— 12 then you no longer permit doing anything for a father or mother, 13 thus making void the word of God through your tradition that you have handed on. And you do many things like this.”
You see, while there is constant flux within a common-law system, it is not without direction or control. There are some commands that are greater than others. The gift that was set aside as Corban (that is, an offering to God) was a proper thing to do. But these people did worship at the expense of taking care of their family.
The question is, what is the controlling interest of God? What does he desire more than anything else? I think the answer is so simple it has eluded our understanding. What God wants is what he commands us to do more than anything else: to love him and to love people. This is the control which gives direction to the constant flux of a common law system.
[Music: Podington Bear / Blur And Coalesce / The Hump (Box Set D)]
So far, we’ve talked about the Bible being our national literature, the different types of legal systems, and Jesus’s interpretation of the Mosaic Law. Here is where all these ideas tie together to answer our question. How do we interpret the Mosaic Law? The answer, deceptively simple, is that we interpret it the same way Jesus interpreted it.
First, Jesus viewed the law as national literature. It wasn’t just a religion for Jesus. You see, the ideal kingdom that God wanted to set up through the Mosaic Law was that it would be a complete union between church and state. While there might have been some pre-Enlightenment thinkers during Jesus’s day, I think I can safely claim that most people saw the union of religion and state as absolutely essential. When Jesus claimed to affirm all aspects of the Mosaic Law in Matthew 5, we can assume that he thought the same way. To him, the laws of the Scriptures were his national identity.
Second, after the resurrection, Jesus claimed all authority over the Kingdom and indeed over all the earth as indicated in passages like Matthew 28:27, Philippians 2:5ff, and Daniel 7. The church which he started after he left the earth is part of that Kingdom. The early church, I believe, viewed itself as a political/legal authority. In brief defense, I note how Paul indicates this in 1 Corinthians 6 were he gives legal authority to church. Not to mention how we are reminded many times how we will rule with Jesus someday. Therefore, in keeping with this view of the Kingdom, it seems best to assume that we should approach the Mosaic Law in much the same way Jesus approached it as a Jew. We should claim it as our national literature and we should interpret the laws in the same way we would interpret the laws of our nation, state, or county.
We should view it as legal material, not only spiritual or religious material. Let me add some emotive proof to this concept. Have you ever gotten board reading through the Pentateuch? Have you felt guilty at not being interested in the reading material? Can I suggest to you that this is natural? You’re reading a legal text, not a love letter or a story. It is valuable to read it. But at the end of the day, you’ll probably get the same amount of pleasure out of reading it as you would reading the National Electric Code or Tax Laws.
Third point, and most relevant: You should interpret the legal text as common law legal literature. Jesus, it seems by all indications, interpreted the Law as a set of common-law rulings. So, when you interpret it for yourself or your church, you should make your interpretations according to the volkgeist of Scripture. This means, you should understand how the church and then Jews before that interpreted that text. You should make interpretational decisions in keeping with the general morals and principles of our nation.
Also, when you make your interpretations, you should interpret the laws as records of earlier legal decisions, but not as binding precedent. Your goal is not to understand the exact wording of the law and then stop. You need to understand the wording and then get to the reason behind the decision. Once you understand that, you need to look at how other members of our nation have interpreted those laws. When all this is collected, then you need to think of you situation and see how much if any of it applies.
Further, when you make interpretations, you need to be ready to adapt the code to changing circumstances. As David felt justified in taking the loaves from the tabernacle, so you too should make use of your reason and not be afraid to make decisions that may contradict other commands. You must, however, be very careful to insure that you have your reasoning right. Otherwise you will end up like the Pharisees who put aside the important commands for lesser ones. We’ll talk more about this later.
Finally, when you make interpretations, you need to make full use of all the corpus of the Old Testament. Since all of it is our national literature and embodies our national volkgeist, it all bears legal weight, not just the laws. The stories, especially the ones that are presented as God’s ideals, should take precedent alongside the actual legal material. This gives you liberty to interpret stories in a way that provides norms for moral living today.
When all is said and done, God expects us not to blindly follow a ridged code. We no longer follow a code that is cut in stone but a code that in imprinted on our hearts and minds.
[Music: Scott Holmes / Driven to Success]
 Patrick Devlin, The Judge (New York: Oxford University Press, 1979), 177.
 William S. Morrow, An Introduction to Biblical Law (Grand Rapids: Eerdmans, 2017), 35.
 Berman, “The History of Legal Theory,” 21.
 Ibid., 22.
 Berman, “The History of Legal Theory,” 31.
 Ibid., 26–7; Joshua Berman, “The Legal Blend in Biblical Narrative (Joshua 20:1–9, Judges 6:25–31, 1 Samuel 15:2, 28:3–25, 2 Kings 4:1–7, Jeremiah 34:12–17, Nehemiah 5:1–12),” Journal of Biblical Literature 134, no. 1 (2015): 105–125.