Before we get started today, I have a bit of a disclaimer and apology. In this show, I analyze an American Supreme Court case. But in doing so, I want to say that I am not a lawyer nor do I have any formal legal training. So I make these comments to the best of my understanding but they may be inaccurate. Also, nothing I say counts as legal advice. Besides, if you’re coming to a podcast looking for legal advice… I’m not sure that you’ve chosen the wisest course of action.
My apology is not so much for the content produced in this show. It’s about the sensitive nature of the court case I am going to analyze. It’s not graphic, sexual, or anything like that. It’s just super embarrassing for Christianity especially since there are many people still alive who were part of this case. My intention is not to embarrass you. Really, I chose this case because it is one of the few court cases I know well and because it precisely fits the point of this episode. After you have listened to this show, feel free to contact me through my website at https://freshgroundtheology.com/contact/.
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So far, I’ve given you some general ideas about common-law and the Pentateuch. In the first episode, I made a general case for why we should consider the Pentateuch in common-law terms. Much of my analysis is based on and draw from Joshua Berman and his research. In the second episode, I made the case from a Christian theological perspective. Jesus seems to take a common-law approach to the Pentateuch and the Hebrew legal literature.
Now, in this episode, I want to make the case from a historical scholarship perspective. We are going to leave behind, if we can, the Christian religious presuppositions and look at the evidence from a non-religious point of view. The point of this effort is to understand how the writers of the Hebrew Bible understood and used Pentateuch and other writings. This effort is, if you would, an attempt to get authorial intent. How did the authors of the Hebrew Bible see their own legal system? How did they use it? Can we understand from their use of legal literature how they practiced law in ancient Israel? To understand this, we’re going to start not in 8th century Israel, but in 20th century America.
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The Battle for School Desegregation
[Reenacted by David Lompe] To separate them from others of similar age and qualifications solely because of their race generates a feeling of inferiority as to their status in the community that may affect their hearts and minds in a way unlikely ever to be undone. The effect of this separation on their educational opportunities was well stated by a finding in the Kansas case by a court- which nevertheless felt compelled to rule against the Negro plaintiffs.
This is a reenactment of the opinion delivered by Justice Warren in Brown v Board of Education of Topeka.
[Reenacted by David Lompe]We conclude that, in the field of public education, the doctrine of “separate but equal” has no place. Separate educational facilities are inherently unequal. Therefore, we hold that the plaintiffs and others similarly situated for whom the actions have been brought are, by reason of the segregation complained of, deprived of the equal protection of the laws guaranteed by the Fourteenth Amendment. This disposition makes unnecessary any discussion whether such segregation also violates the Due Process Clause of the Fourteenth Amendment.
Because these are class actions, because of the wide applicability of this decision, and because of the great variety of local conditions, the formulation of decrees in these cases presents problems of considerable complexity. 
Brown v Board of Education is the landmark where public school were forced to desegregate in order to provide equal education to ethnic minorities. But far from being the last decisive case on the subject, it merely opened to floodgates for many, many questions. The Court realized that this one opinion could not cover the complexity of the situation that would need to be addressed.
[Transition Music: Kai Engel – Dark Alleys – Satin]
[First Paragraph of Almond’s speech / Auto-Duck behind my words] To those whose purpose and design is to blend and amalgamate the white and negro and destroy the integrate of both races.
The conservative reaction was stiff. For example, J. Lindsay Almond, governor of Virginia, took the route of “massive resistance” to avoid integrating schools. Rather than seeing schools integrated, Almond decided to close them and did so in Charlottesville, Front Royal, and Norfolk. You can find a speech he gave against school integration on the Library of Virginia’s website. It’s worth the listen. I’ll post a link in the show notes: https://edu.lva.virginia.gov/dbva/items/show/202.
The reaction of the political conservative right was bad enough. Unfortunately, conservative Christians were swept up in and indeed led the charge to maintain segregation. Rather than see their children attend school with other races, many Christians pulled out of the so-called “morally corrupt” public schools and started the Christian School Movement. This is not to say that the sole reason for the Christian School Movement was purely racism. But it is well documented that one of the primary initial reasons was because of forced desegregation from the Federal Government. You can find a link in the show notes for further information: https://lccn.loc.gov/83601112.
[Bob Jones Jr., Sermon: God Looks at a Nation, 1969; sermonaudio.com/sermon/711131836423] Don’t you be deceived! The Civil Rights Movement in America is a communistic inspired movement to destroy law and order, and to breakdown the situation that exists in America, and to bring racial strife and con[fusion] and discord. Don’t you feel sorry for these poor civil rights [people.] They are a lawless, evil group. I know there’s some good people taken in by it. But I’m speaking of its leadership.
Christian schools remained segregated and, because they were private, thought that they were untouchable by the Federal Government. What they didn’t see was that they depended upon the government for a substantial donation in the form of their 501(C)3 tax-exempt status. In the aftermath of Brown v Board of Education of 1954 and the Civil Rights Act of 1964, the Internal Review service said that it (quote) could “no longer legally justify allowing tax-exempt status to private schools which practice racial discrimination nor [could] it treat gifts to such schools as charitable deductions for income tax purposes.” In response, Goldsboro Christian School in North Carolina and Bob Jones University in South Carolina filed suits against the IRS claiming that this move violated their religious rights. Goldsboro believed that the Scriptures taught that races should be segregated including in their schooling. Bob Jones believed that races should not intermarry and so created policy accordingly. These suits became landmark cases in their own right in the racial and education history of America. The cases were consolidated and brought before the on October 12, 1982.
The end of the story was not very good for either school. Both schools lost the case being voted down 8-1. Goldsboro Christian School closed four years later for reasons that I am unable to find. BJU continued with its segregationist policy until the year 2000 when it took a media frenzy, pressure from the Republican Party, and a bipartisan, condemnatory resolution from both houses of congress to make BJU drop its policy. After eight years and a new president, BJU quietly wrote an apology for its racist past and posted it on their website (https://www.bju.edu/about/what-we-believe/race-statement.php). Under the direction of the current president Steve Pettit, BJU has made modest effort to reconcile with African Americans including celebrating MLK Day and Black History Month.
Why bring up these cases? In this podcast, we are not interested in what they argued for. Everyone now agrees that these two schools were morally wrong in their suit. We are not interested in the what of their argument. We are extremely interested in how they argued their case. Did they use arguments that fit a common-law system? Or did they use arguments that fit a statutory law system?
The full audio recording can be found here: https://www.oyez.org/cases/1982/81-3.
[Court Case Recording: Transcript] We’ll hear arguments first this morning in Goldsboro Christian Schools against the united states in the consolidated case. Mr. Ball you may proceed whenever you’re ready.
[Auto duck] This is the actual recording of the oral arguments presented to the supreme court.
[Court Case Recording: Transcript] Mr. Chief Justice and may it please the court; I speak for the petitioner Bob Jones University. The University in coming before this court today find itself in a remarkable position. It suffers the severe injury of loss of its tax exempt status, but there exists nowhere a party, any 1981 proceeding, or in any judicial or administrative proceeding anywhere including this very proceeding claiming to be aggrieved by any action or policy of the University including its marriage policy. Furthermore, the University is not said to be in violation of any law or ever to have been in violation of any law. But if it were it would be subject to the penalties provided in that law which likely would be far less injurious to the university than deprivation to its entire operation by revocation opens tax exempt status.
[Auto Duck] Something very interesting happens here in this opening argument. Mr. Ball, the lawyer for BJU, presents an argument from silence. There is no law or precedent for the IRS’s actions. Now, if you’ve been trained in logic, you should remember one thing about this type of argument: it is inherently weak. But why would he start his argument with this type? From my understanding, this is actually the precise argument he should use if the case is presented in a statutory system. Because, according to the statutory theory, the law goes only as far as it is stated. If there is no law, then no wrong has been done. Thus, when Mr. Ball argued that they did not break any laws, it is a strong argument in the court. In a common-law system, this wouldn’t work. The common-law system looks for the principle behind the law, not just the law itself. Thus, saying that a law doesn’t exist has no effect because the plaintiff could be in violation of the principle and could incur guilt.
[Court Case Recording: Transcript] Now, if this court accepts the Green 4th Amendment thesis, it at the same time brings the board problems of immense magnitude the problem already indicated of selecting and defining a federal public policy, or of choosing which among federal public policies must be conformed with as the price of tax exempt status and who the definers will be and the interesting question of what the effective date of that policy will be with all the consequences that entails. And inherent in all of that the notion that taxation which is so intimately related to the lives and liberties of citizens will not necessarily be determined by any act of Congress or by the constitution but instead why a boroque super law—the super law federal public policy invoked by administrators or judges and not the deliberate and finite act of the elected representatives of the people. As judge Leventhal said in his opinion in Green that very elaborate opinion he said, “The ultimate criteria is federal public policy.”
Notice this too: he makes his appeal to the ruling body and to a definitive text: the congress and the constitution. This also is a statutory argument. He wants the court to realize that the law must be encoded in a definitive work and not left to the dictates of a bureaucracy. Within a common-law system however, the law is not defined by statutes, but through the gradual distillation of the decisions and ideals in the courts.
[Court Case Recording: Transcript] Mr. McNarry.
McNarry represents Goldsboro Christian Schools.
[Court Case Recording: Transcript] Mr. Chief Justice and may it please the court: The issue that I will address is whether under the current provisions of section 501.(C).3 a private church related school can be denied tax exempt status because it maintains a racially discriminatory admissions policy as a matter of its religious conviction.
Let’s skip down to the important part.
[Court Case Recording: Transcript] Section 501(C)3 now describes 8 distinct categories of organizations which shall be exempt from taxation each of which are connected by the disjunctive or. By use of the word or, all available legislative history indicates that Congress intended for each term in section 501(C)3 to have a separate and distinct meaning.
Ok, so here is another example of how the lawyer focuses on the statute located in the code. Here he develops his argument paying to the exact meaning of the code. This, again, points to the statutory system where the exact meaning of what was written determines what the law is. The focus is not on the intension behind the law, at least in this argument. Thus, we see again how the American system is built and argued based upon a statutory, not common-law, system.
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Now, lets leave behind the 20th century CE and fly back in time to the 8th century BCE. Here we will find a court case that was presented in the court of Hezekiah. Just like this court case in the American supreme court, we’re going to dig through this ancient court case to see how they argued their points.
Isaiah’s Lawsuit Against Israel
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Times were finally looking up for Hezekiah. The Assyrian invasion was in the past, the economy was ramping up, and some emissaries from Babylon just showed up to pay honor to him. Then one day, a prophet pushes past the guards, thumping his staff on the palace stone, making his way to the throne. The buzz of the court silenced as all eyes turned to Isaiah.
[Reenacted by James Labadorf, Isaiah 1:2ff, LEB] Hear, heavens,
and listen, earth,
for Yahweh has spoken:
“I reared children
and I brought them up,
but they rebelled against me.
3 An ox knows its owner
and a donkey the manger of its master.
Israel does not know;
my people do not understand.
4 Ah, sinful nation,
a people heavy with iniquity,
offspring of evildoers,
children who deal corruptly.
They have forsaken Yahweh;
they have despised the holy one of Israel.
They are estranged and gone backward.
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Isaiah the prophet spoke to the court using the form of a lawsuit. He uses this form several times in fact. We are going to skip to his third use of this form in chapter 5. Remember, we are looking for how Isaiah makes his arguments.
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The lawsuits remarkably do not contain direct citations of legal material. Yet they may have been forming legal arguments even though they did not directly cite legislative material. This argument style will be explored using the criteria developed from Berman’s observations.
The Juridical Parabolic Indictment (5:1–7)
Let me sing for my beloved
a song of my love concerning his vineyard:
⌊My beloved had a vineyard⌋ on ⌊a fertile hill⌋.
2 And he dug it and cleared it of stones,
and he planted it with choice vines,
and he built a watchtower in the middle of it,
and he even hewed out a wine vat in it,
and he waited for it to yield grapes—
but it yielded wild grapes.
3 And now, inhabitants of Jerusalem
and men of Judah, judge between me and my vineyard.
4 What more was there to do for my vineyard that I have not done in it?
Why did I hope for it to yield grapes, and it yielded wild grapes?
5 And now let me tell you what I myself am about to do to my vineyard.
I will remove its hedge, and it shall become a devastation.
I will break down its wall, and it shall become a trampling.
6 And I will make it a wasteland;
it shall not be pruned and hoed,
and it shall be overgrown with briers and thornbushes.
And concerning the clouds, I will command ⌊them not to send⌋ rain down upon it.
7 For the vineyard of Yahweh of hosts is the house of Israel,
and the man of Judah is the plantation of his delight.
And he waited for justice,
but look! Bloodshed!
but look! A cry of distress!
This is what is known as the Parable of the Vineyard. The use of the parable aligns with the fourth criterion of a common-law system: the use of folk elements. The parable begins defining its genre as a song (שִׁירָה). In general a song expresses joy or happiness (Am 8:3). A song can be used to express joy after deliverance. But it also can encapsulate the language of a legal witness (Dt 31:19). The Song of Moses is one such song that was written to condemn Israel (Dt 31:19–32:44). In every case the song is to be repeated in a communal atmosphere. Numbers 21:17 speaks of the whole nation singing a song together: אָ֚ז יָשִׁ֣יר יִשְׂרָאֵ֔ל אֶת־הַשִּׁירָ֖ה הַזֹּ֑את “then Israel sang this song.” Moses also wrote his song for the people to learn and repeat: וַיִּכְתֹּב מֹשֶׁה אֶת־הַשִּׁירָה הַזֹּאת בַּיּוֹם הַהוּא וַיְלַמְּדָהּ אֶת־בְּנֵי יִשְׂרָאֵל “So Moses wrote this song the same day, and taught it to the sons of Israel” (Dt 31:22). The שִׁירָה, then, was a folk element used by the community.
The imagery used in the parable also indicates that Isaiah was making a legal point using folk elements. He sings of vineyard (כֶּרֶם) which sat atop a fruitful hill. In his description of the vineyard, he drops into a story-like format switching verb forms from cohortative to waw-consecutive (5:2). He describes the typical activities of a farmer. These exact activities are not a metaphor for what Yahweh did for Israel. Instead, the parallel is that as the farmer did all he could for the vineyard, so Yahweh did all he could for Israel. This story was intended to draw the listeners into the parable in order to maximize the effectiveness of the ending. From these two elements (the song and the story/parable), Isaiah formed his opening argument based on folk elements.
Accusation against Excess Land Acquisition (Is 5:8–10)
8 Ah! Those who ⌊join⌋ house with house,
they join field together with field
until ⌊there is no place⌋
and you are caused to dwell alone in the midst of the land.
9 Yahweh of hosts said in my ears:
⌊Surely⌋ many houses shall become a desolation,
large and beautiful ones without inhabitant.
10 For ten acres of vineyard shall yield one bath,
and the seed of a homer will yield an ephah.
The first accusation in the woe-oracles is against those who buy up all the land (vv. 8–10). These unjust people bought up and held on to this land so that the poor could not sustain themselves. In response, Yahweh swore an oath in the ears of Isaiah to destroy their houses.
Many commentators see this as a violation of the law of Jubilee in Leviticus 25:8–17.
You shall thus consecrate the fiftieth year and proclaim a release through the land to all its inhabitants. It shall be a jubilee for you, and each of you shall return to his own property, and each of you shall return to his family. . . . On this year of jubilee each of you shall return to his own property.
The texts parallel each other in two ways. First, the Law of Jubilee reverts the land back to the owners whereas the people in Isaiah 5:8–10 do not seem to be giving the land back. Second, Isaiah 5:10 focuses the discussion on the agriculture. Because of their sin, Yahweh will reduce their crops severely. The Law of Jubilee likewise focuses on crops (Lev 25:11–12, 15). But in Leviticus , if the people had kept the Jubilee law, Yahweh promised: “I will so order My blessing for you in the sixth year that it will bring forth the crop for three years” (Lev 25:21). Thus, there is a tight affiliation between the woe-oracle in Isaiah 5:8–10 and the law of Jubilee in Leviticus 25:8–17.
The law of Jubilee is an excellent example of a law that was distilled and developed over time within the law code (the first and third criterion of common-law). First, the Jubilee law was based on the Sabbatical Year Law. In the Covenant Code (Ex 21–23), the Sabbatical Year is presented as a measure of debt relief from the poor: “on the seventh year you shall let it rest and lie fallow, so that the needy of your people may eat” (Ex 23:11). This law developed later in the Holiness Code. Whereas the focus of the Covenant Code was on the people, Leviticus 25:2–7 emphasizes the land itself: “In the seventh year there shall be a sabbath of complete rest for the land” (Lev 25:4, cf. 25:2, 5). There are also a number of lexical similarities that suggest literary dependence between the texts. Built on the Sabbatical year is the idea of the Jubilee year. Now a seven-times-seven (49) year cycle should ideally drive Israel. Further, the reason for the return of the land was that it belonged to Yahweh (Lev 25:23).
Second, the Jubilee law was developed in explicit legal settings. In Numbers 27:1–11, the daughters of Zelophehad approach Moses to sue for inheritance rights. After a brief discussion and Moses’s conversation with Yahweh, the ruling was that women could inherit in the place of men when their father had no sons. While this ruling did not directly bring up the Jubilee law, it directly affected it. The next court case concerning the daughters of Zelophehad was brought up by their uncles (Nm 36:1–13). They were concerned that if the daughters of Zelophehad married outside of the tribe, the land would revert to the other tribe in the Jubilee (v. 4). Moses restricted the law so that the women had to marry within the tribe (v. 6).
Third, Isaiah developed the Jubilee law in respect to its humanitarian intention. The original law was given in context of debt relief (Lev 25:23–34). Debts were incurred in order “to sustain [your countryman] . . . that he may live with you” (v. 35). Thus, the debt and the selling of land to pay the debt was for humanitarian purposes. However, nowhere in the Pentateuchal passages does it restrict the amount of land bought by the elite. Under a strict interpretation, the law placed no limit on how much land a person could buy from debtors. These people took advantage of this loophole and began to buy massive amounts of land. While this practice met the exact letter of the law, it missed the entire humanitarian intent of the law. Isaiah’s argument develops this law more, restricting the monopolization of the land so that the poor had something on which to live.
Accusation against Excess Revelry (Is 5:11–13)
11 Ah! Those who rise early in the morning,
they pursue strong drink.
Those who linger in the evening,
wine inflames them.
12 And there will be lyre and harp,
tambourine and flute,
and wine at their feasts,
but they do not look at the deeds of Yahweh,
and they do not see the work of his hands.
While specific legislation exists behind the previous accusation, this accusation lacks legal backing. The woe-oracle is often thought to be directed against drunkenness. To be more precise, it is directed against people who get drunk (v. 11) at parties (v. 12a) in place of understanding Yahweh’s ways (12b-c).
Alcohol was not banned from Israel’s society. Yahweh gave wine (יַיִן) and strong drink (שֵׁכָר) for Israel’s enjoyment (Dt 14:26; Ps 104:15). Yahweh mandated the sacrifice of wine and strong drink to him. The law restricted only two classes of people from drinking: the priests and the Nazirites. Groups could take on vows of abstinence like the Rechabites. But this action was rare (Jer 35:1ff). Yet Israel had plenty of warnings against the abuses of alcohol. The story of Nabal should have stood as a warning about drunken revelry (1 Sm 25:37). The Hebrew Bible also has plenty of proverbs against drunkenness. These warnings did not come from the legal sections of the law. They arose out of various folk traditions in Israel.
The second part of the woe-oracle is equally interesting (v. 12b-c). They were so busy entertaining themselves that they did not remember the deeds (פֹּעַל) or works (מַעֲשֶׂה) of Yahweh. When this terminology is used of Yahweh, there are four events for which it is used: the formation and miracles around the covenant, deliverance especially from Egypt, creation (Ps 8:4; 107:24; Ecc 8:17), and the judgment of Yahweh (Ps 9:17; Hab 1:5). Since this passage falls in the middle of a covenant lawsuit, it is talking about the deliverance from Egypt and the forming of the covenant (cf. 5:1–2).
The closest command to Israel concerning remembering the works of Yahweh come from the Deuteronomic Code. Yahweh commands them to “remember [זכר] that you were slaves in Egypt” (Dt 5:15; cf. 16:12; 24:18, 22). He also commands them to remember his work when bringing them out of Egypt. They were not to forget (שׁכח) Yahweh’s works in bringing them out (Dt 6:12; 8:14), covenanting with them (Dt 4:9, 23, 31; 8:11), and leading them (Dt 9:7).
In sum, Israel was charged on two grounds. First, they violated the system of reasoning held by the Deuteronomic community. It is hard to quantify obedience to the commands remember and do not forget. The commands were intended to instill into the community thought process by which they were to live. Israel neglected to do this command. They left the intended volkgeist behind violating the intent of the law. Thus, Isaiah was arguing based on the first criterion of common-law. Second, while the law did not state a direct command against drunkenness, the national spirit as embodied in the stories and proverbs should have led these people to forgo their excesses. Thus, Isaiah was arguing based on the fourth criterion of common-law.
Accusation against Those Who Challenge Yahweh (Is 5:18–19)
18 Ah! Those who drag iniquity along with the cords of falsehood
and sin as with rope of the cart,
19 those who say,
“Let him make haste;
let him hurry his work
so that we may see it
and let it draw near
and let the plan of the holy one of Israel come
so that we may know it!”
The essence of this condemnation comes for the volkgeist. In this oracle, the people were calling Yahweh to act quickly. Surrounded by injustice, they wanted Yahweh to come and rectify society. But they themselves were unjust. Their desire for Yahweh to enact his plan would mean that he should judge them.
Isaiah is not expressing a stand-alone sentiment. Jeremiah dealt with a similar situation. The people practiced wickedness but then came to Yahweh to be delivered (Jer 7:3–10). Amos also pronounced a woe against those who desired the Day of Yahweh (Am 5:18–20).
18 Alas, you who are longing for the day of the LORD, / For what purpose will the day of the LORD be to you? / It will be darkness and not light; / 19 As when a man flees from a lion / And a bear meets him, / Or goes home, leans his hand against the wall / And a snake bites him. / 20 Will not the day of the LORD be darkness instead of light, / Even gloom with no brightness in it?
The Song of Moses likewise records a similar theme. Yahweh proclaimed that “Vengeance is Mine, and retribution, / In due time [Israel’s enemies’] foot will slip; / For the day of their calamity is near, / And the impending things are hastening upon them” (Dt 32:35). Yet the nation of Israel could not tap into this promise because “they are a nation lacking in counsel, / And there is no understanding in them” (Dt 32:28). Their lack of understand came from pursuing false gods (Dt 32:21). Thus, Yahweh’s vengeance was acted out against them and not their enemies (Dt 32:23–27).
This idea, then, about not daring Yahweh to act was a part of Israelite society. While it was not encapsulated into a command, these Israelite’s should have known that they needed to repent of their sins before asking Yahweh for justice.
Accusation against the Ethically Twisted (Is 5:20)
20 Ah! Those who call evil good and good evil,
those who put darkness for light and light for darkness,
those who put bitter for sweet and sweet for bitter!
Isaiah pronounced the fourth oracle against those who violated the foundational volkgeist of the community. These people “call evil good, and good evil; / [they] substitute darkness for light and light for darkness; / [they] substitute bitter for sweet and sweet for bitter!” Williamson summarizes the issue well:
The life of any close-knit society depends in large measure upon the adoption of common standards and norms in matters large and small, so that those condemned here will have been perceived as posing a significant threat.
This idea of replacing good with evil does not appear at all in the law codes. The only matter that comes close is the charge to the priest to distinguish between good and bad animals (Lev 27:10–14, 33). Yet the ability to discern between good and evil filled every part of Israel’s society. In several narratives it played a key role in the climax of the story. For example, Joseph accused his brothers of “repaying evil for good” (Gn 44:4). Likewise, Saul repented of his pursuit of David saying, “you have dealt well [טוֹב] with me, while I have dealt wickedly [רַע] with you” (1 Sm 24:17). The wisdom literature of Israel also proclaimed this as a key part of life (Ps 34:14; 37:27; Pro 14:19; 17:13). Further, it is the complaint of the Psalmist that his enemies replace good for evil (Ps 38:21; 52:5; 109:5). The prophets likewise took up this theme. Micah preached against the rulers of Israel because they “hate[d] good and love[d] evil” (Mic 3:2). These evil men were quick to strip the society of necessities to fill their stomachs (Mic 3:1–4 cf. Is 5:8–10). Malachi also preached against this sin which pervaded the post-exilic community (Mal 2:17).
Deciding between good and bad sometimes takes on a judicial nuance. Solomon asked for the ability “to discern between good and evil” so that he could “judge this great people” (1 Kgs 3:9). The eight-century prophets took interest this judicial aspect. Amos called the people to “Seek good and not evil, that you may live. . . . 15 Hate evil, love good, / And establish justice in the gate!” (Am 5:14–15). Micah likewise asked the heads of Judah “Is it not for you to know justice? / 2 “You who hate good and love evil” (Mic 3:1–2). In Isaiah, the judicial theme appears three verses later when he chastises men who pervert justice (Is 5:23).
The issue of discerning between good and evil pervaded every part of society from the narratives, to the songs, proverbs, and prophets. Its pervasive influence means that it was a part of the volkgeist even though the elite constantly violated it. Isaiah’s argument, therefore, rests upon the spirit of the community rather than any explicit command in the law codes.
Accusation against Those Who Are Wise in Their Own Eyes (Is 5:21)
21 Ah! Those who are wise in their own eyes
and have understanding ⌊in their view⌋!
The category of argument which this falls under is folk elements. Many folk sayings and proverbs discuss this idea in the woe-oracle. The father advises his son: “Do not be wise in your own eyes; / Fear the LORD and turn away from evil.” Those who are wise in their own eyes do not fear Yahweh. By implication, then, the people whom Isaiah was accusing did not fear Yahweh. This accusation probably was more than just against hubristic wisdom. It was against the subtle rejection of Yahweh.
Accusation against the Misguided Heroes (Is 5:22–23)
22 Ah! Heroes at drinking wine,
and men of capability at mixing strong drink!
23 Those who acquit the guilty because of a bribe
and remove the justice of the innocent from him.
This accusation is close to a direct legal citation in this passage. Isaiah uses the same word for bribery (שֹׁחַד) as four passages from the Pentateuch. Exodus 23:8 states “You shall not take a bribe [שֹׁחַד], for a bribe [שֹׁחַד] blinds the clear-sighted and subverts the cause of the just.” Deuteronomy 16:19 also speaks on the same subject: “You shall not distort justice; you shall not be partial, and you shall not take a bribe [שֹׁחַד], for a bribe [שֹׁחַד] blinds the eyes of the wise and perverts the words of the righteous.” This drive for justice was based on Yahweh’s sense of justice (Dt 10:17). And those who violated this command were cursed (Dt 27:25).
Some commentators, such as H. Wildberger, take this comment about bribery as a direct citation of the Covenant Code (Ex 23:8) and the Deuteronomic Code (Dt 16:19). Source-critical scholarship, however, has criticized the citation of the Deuteronomic Code in Isaiah 5:23. S. R. Driver, for example, argued that Isaiah was not citing Deuteronomy because it had not been written in Isaiah’s time. The apparent citations were either based on Isaiah’s “own moral enlightenment” or on “the older law of Ex 20–23.”
Whether or not Isaiah was directly citing Deuteronomy, he was citing a strongly Deuteronomistic concept. Deuteronomy develops the concept of bribery (שֹׁחַד)more than the Covenant Code. And it is not mentioned in the Holiness Code at all. Also, שֹׁחַד appears more times throughout the Deuteronomistic history than in non-Deuteronomic literature.
The significance of this citation comes into focus when compared with two other woe-oracles. The second woe-oracle against excess revelry (Is 5:11–13) draws its inspiration from the Deuteronomic tradition like this final oracle. It accuses its people of forgetting Yahweh, which is a Deuteronomic emphasis. These two oracles contrast with the first oracle which draws its inspiration from the Holiness Code.
In the statutory approach, the expectation is that Isaiah would have used one law tradition. Instead, Isaiah moves between law traditions that scholars view as mutually exclusive. The use of multiple law code traditions is not compatible with a statutory-law system. In this system, law codes succeed each other and are mutually exclusive. B. Levinson argues that each new law code covertly subverts the previous law codes. Also, Blum finds many striking differences between the Priestly and the Deuteronomic sources. To him, the discontinuities between these sources are striking and serious. And these contradictions within the text cannot simply be overlooked. The two groups did not come together until the Persians sought to authorize a law for the Jews. At that point, the Priestly and the Deuteronomic traditions were brought together into a compromise document. By this viewpoint, Isaiah in his original writings could not have made equally authoritative references to mutually exclusive law traditions. Instead, some later editor must have added his viewpoint to the authoritative text.
However, if the juxtaposed traditions (Is 5:8–23; cf, Jer 34:12–17) are interpreted through a common-law viewpoint, they are compatible with each other. In the common-law system, the later codes were viewed as “complements of the earlier ones.” In a complementary system, the new code “did not reject the authority and standing of the earlier collection.” A new law code represents a continuous process of interpretation. The older codes were still used as “a system of reasoning.” The judges would use this system “to reconstruct the general thrust of the law in consultation with the previous judicial formulations.” In the end, Isaiah’s use of multiple law codes indicates that he was using the common-law system.
[Transition Music: Jason Shaw – Solo Acoustic Guitar]
Isaiah’s argument in his lawsuit against the nation of Judah fits better with a common-law approach to Hebrew legal material. The study shows that throughout the lawsuit in Isaiah 5, Isaiah constantly used principles derived from common-law theory. First, he made ample use of the volkgeist principle in the second through the fifth oracle. Second, he utilized a system of reasoning that went beyond the exact statement of the law in the second and sixth oracles. Third, he distilled the meaning of the Jubilee law (first oracle) to emphasize its humanitarian portion. Fourth, he used various folk elements to make his case like the juridical parable and proverbial wisdom.
For Pentateuchal criticism, this study has at least one key implication. Since Isaiah was using a common-law approach to his argument, it is reasonable to assume this was the legal approach to Israel. Thus, when Israel looked at its law codes, it did not see competing political factions. It saw instead a unity even though the commands were different from code to code. For the modern researcher, it stands that s/he should also be biased toward unity rather then division.
For Christian theology, this study has at least one key implication. Christians have for a long time struggled with how to adapt and apply the Old Testament. Most Christians recognize that the purpose studying the law is to find the principle behind it before applying it to today. Also, many Christians will read stories from the Old Testament and attempt to apply them as well. They struggle, though, finding what legitimizes this approach. Common-law theory provides a system which undergirds this approach. The Law is not an absolute. It is a system of reasoning which Christians can utilize in their lives. Likewise, common-law theory legitimizes the use of stories and other folk materials as the bases for decision making.
Whew! This podcast is pretty dense! I’m glad you made it through to the end. A lot of this material from Isaiah is from a paper that I wrote. If you would like to read the paper, go to my contact page at Freshgroundtheology.com. Just fill out the contact form as ask for the Isaiah paper. In return, I ask that you give me your honest feed back after you read it. I’m thinking on doing more research on this subject and would love to have your input.
- Today’s show was written and produced by me, Nate Labadorf.
- Special thanks to David Lompe and James Labadorf for providing some reenactments on today’s show.
- The music used in the show can be found linked in the show notes.
- Links to the speeches used in the show can also be found in the show notes.
- But thank you most of all for listening to the show! Without you, this show wouldn’t exist. Thanks for liking, sharing, and subscribing to the podcast.
- Till next time, God bless.
 United States Commission on Civil Rights. Discriminatory religious schools and tax exempt status. Washington, D.C. : United States Commission on Civil Rights, 
 Regardless of the prehistory of the Pentateuch, most scholars agree that there was some form of it around the eight century (E.g., Rainer Albertz, “The Recent Discussion on the Formation of the Pentateuch/Hexateuch,” Hebrew Studies 59 (2018): 65–92; David M. Carr, The Formation of the Hebrew Bible: A New Reconstruction (New York: Oxford University Press, 2011), 187 ff.). If the prophetic lawsuits were grounded in a statutory-law system, one should expect legal citations. But if the arguments follow a common-law approach, then this lack of citations is not a problem. First, in secular ANE lawsuits, scholarship has not found an example of a single citation of any law code. This indicates that “the bulk of law in Mesopotamia was customary law” (Berman, Inconsistency in the Torah: Ancient Literary Convention and the Limits of Source Criticism, 113; Westbrook, “The Character of Ancient Near Eastern Law,” 21.). Second, in the few records of trials in the Hebrew Bible, there is not one citation of written sources of law (e.g., Solomon in 1 Kgs 3; Berman, Inconsistency in the Torah: Ancient Literary Convention and the Limits of Source Criticism, 114–5.).
 Isaiah Hoogendyk, ed., “שִׁירָה,” The Lexham Analytical Lexicon of the Hebrew Bible (Bellingham, WA: Lexham, 2017); cf. Ludwig Koehler and Walter Baumgartner, “שִׁירָה,” The Hebrew and Aramaic Lexicon of the Old Testament (New York: Brill, 2000). The opening words also indicate the intense passion of the singer. נָא + the cohortative אָשִׁירָה is an expression of self-encouragement: “Let me encourage myself to sing, please.” Kautzsch and Cowley, Gesenius’ Hebrew Grammar, sec. §108.b. Later in verse 2, the author uses the piel stem וַיְקַו in order to indicate a hope toward a specific goal—that it would produce grapes. All this indicates the strong desire, even yearning, that the farmer had to see his grapes produce. But when the grapes came as sour or wild grapes, the disappointment was incredible. Waltke and O’Connor, An Introduction to Biblical Hebrew Syntax, sec. 24.5.b.
 Exodus 15:1; Numbers 21:17; and 2 Samuel 22:1. Compare these with Psalm 18:1.
 The Song of Moses is considered to be a ryb against the nation of Israel. It has many similarities to Isaiah 5:1–7. Yee, “A Form-Critical Study of Isaiah 5:1-7 as a Song and a Juridical Parable.”
 בֶּן־שָׁמֶן : “a son of oil.” This is an idiomatic paraphrasis which expresses an attributive idea. This idiom means fruitful or fertile Kautzsch and Cowley, Gesenius’ Hebrew Grammar, sec. §128.v.
 Motyer, Isaiah: An Introduction and Commentary, 20:106.
 This parable is similar to Nathan’s parable which he employed against David (2 Sm 12:1-15). He drew from the common experience in Israel of animal husbandry. The parable follows falls into an expression of folklore: Chaya Halberstam, “The Art of Biblical Law,” Prooftexts 27, no. 2 (2007): 349.
 Edward Neufeld, “The Emergence of a Royal-Urban Society in Ancient Israel,” Hebrew Union College Annual 31 (1960): 51.
 Verse 9: אִם־לאֹ :אִם־לאֹ בָּתִּים רַבִּים are particles of asseverations. Kautzsch and Cowley, Gesenius’ Hebrew Grammar, sec. §149.e. This oath was not the original intention of Yahweh (cf. Dt 8:11-20). But because of their sin, they earned this punishment. מֵאֵין is a double negative. It does not equal a positive, like in English. But an emphatic negative as in Greek. Ibid., sec. §152.x. Because of their lusts for the houses, Yahweh will move against their lusts. And their beautiful houses would become “a ghost town.” Edward J. Young, The Book of Isaiah: Chapters 1-18, vol. 1 (Grand Rapids: Eerdmans, 1992), 207.
Verse 10: כִּי עֲשֶׂרֶת : It is best to take the כִּי as a particle of asservation. First, since the sins of joining houses and joining fields are mentioned on the same level, it makes sense that their condemnation should be on the same level. Second, the destruction of the people was to be by a foreign army (5:13, 26ff). If the כִּי is causal (that the crop failure causes the destruction of the houses), then it does not fit well with the rest of the context. Third, it parallels אִם־לאֹ in the earlier sentence. Therefore, since the use of the asseverative כִּי is well attested in both Hebrew and cognate languages, it is a reasonable option for use here. Robert Gordis, “The Asseverative Kaph in Ugaritic and Hebrew,” Journal of the American Oriental Society 63, no. 2 (1943): 176.
 E.g., John N. Oswalt, The Book of Isaiah: Chapters 1-39, New International Critical Commentary on the Old Testament (Grand Rapids: Eerdmans, 1986), 240; Motyer, Isaiah: An Introduction and Commentary, 20:150; John Walton, Mark W. Chavalas, and Victor Harold. Matthews, The IVP Bible Background Commentary: Old Testament (Leicester: InterVarsity, 2000), 1749.
 The beginning of Leviticus 25 starts with “The LORD then spoke to Moses at Mount Sinai.” This indicates that this law was still given and developed early on in Israel’s history. It is a separate development outside of the Covenant Code both by the setting of the law and by the content. Yet, it speaks to the same uniform nature.
 Exodus 23:10 states: “וְשֵׁשׁ שָׁנִים תִּזְרַע אֶת־אַרְצֶךָ וְאָסַפְתָּ אֶת־תְּבוּאָתָהּ.” Similarly, Leviticus 25:3 states: “שֵׁשׁ שָׁנִים תִּזְרַע שָׂדֶךָ וְשֵׁשׁ שָׁנִים תִּזְמֹר כַּרְמֶךָ וְאָסַפְתָּ אֶת־תְּבוּאָתָהּ.” For further discussion, see John Sietze Bergsma, “The Jubilee from Leviticus to Qumran: Its Origin, Development, and Interpretation in the Hebrew Scriptures, Second Temple Literature, and Qumran Texts” (PhD diss., University of Notre Dame, 2004), 58.
 Robert S. Kawashima, “The Jubilee Year and the Return of Cosmic Purity,” The Catholic Biblical Quarterly 65, no. 3 (2003): 386; Bergsma, “The Jubilee from Leviticus to Qumran: Its Origin, Development, and Interpretation in the Hebrew Scriptures, Second Temple Literature, and Qumran Texts.”
 This was a unique feature of Hebrew law. As W. Hallo states, “The Mesopotamian jubilee was based on the royal succession and (at least ideally) ordained by God in inviolate successions of sabbatical cycles. Here, then, two of the great contrasts between biblical Israel and its Near Eastern matrix meet: sabbatical cycles versus lunar calendars, and divine versus royal authority.” William W. Hallo, “New Moons and Sabbaths: A Case-Study in the Contrastive Approach,” Hebrew Union College Annual 48 (1977): 16–7.
 The issues with this passage are much more complicated than is portrayed here. See, David H. Aaron, “The Ruse of Zelophehad’s Daughters,” Hebrew Union College Annual 80 (2009): 1–38; Henry C. Clark, “And Zelophehad Had Daughters,” American Bar Association Journal 10, no. 2 (1924): 133–4; Enid Dame, “The Daughters of Zelophehad,” Bridges 9, no. 2 (2002): 82–4; N. H. Snaith, “The Daughters of Zelophehad,” Vetus Testamentum 16, no. 1 (1966): 124–7; J. Weingreen, “The Case of the Daughters of Zelophchad,” Vetus Testamentum 16, no. 4 (1966): 518–22; Daniel Sperber, “A Note on Leviticus XXVII 28,” Vetus Testamentum 16, no. 4 (1966): 515–8.
 Jeffrey A. Fager, Land Tenure and the Biblical Jubilee: Uncovering Hebrew Ethics through the Sociology of Knowledge, Journal for the Study of the Old Testament Supplemental Series 155 (Sheffield, England: Sheffield Academic, 1993), 88–9.
 The last commandment in the Decalogue is indirect legislation against this practice as well: לֹא תַחְמֹד בֵּית רֵעֶךָ לֹא־תַחְמֹד אֵשֶׁת רֵעֶךָ וְעַבְדּוֹ וַאֲמָתוֹ וְשׁוֹרוֹ וַחֲמֹרוֹ וְכֹל אֲשֶׁר לְרֵעֶךָ. These people were lusting after their neighbor’s houses and essentially stealing from them. While this might have been in view, two observations point to Jubilee as the law after which Isaiah is modeling his woe-oracle. First, the specific nature of this woe-oracle implies something more than just general lust after other people’s houses. Second, Yahweh pronounces judgment on them in terms of agriculture. This is the exact opposite of what Yahweh promised to do if they had followed the law.
 Thomas puts this violation clearly: “The critique against the kind of land development here is designed to condemn this activity as profoundly unjust and unrighteous before God and abusive to his neighbor. The critique holds even if the use of land was not technically illegal per se. Isa 5:8–10 then reveals that the wealthy few cannot develop the land to their own ends or to build their own “kingdom.” God’s requirement for justice and righteousness through land-allotment law indicates an ideal that, in this case, is not met.” Thomas, “Building House to House (Isaiah 5:8): Theological Reflection on Land Development and Creation Care,” 195.
 Motyer, Isaiah: An Introduction and Commentary, 20:152.
 Oswalt, The Book of Isaiah: Chapters 1-39, 239. As for the integrity of the passage, many commentators, such as Williamson, see literary growth in this passage. This growth, however, is from the sentencing found in verses 14–17. The core of the woe-oracle is verses 11–13. Williamson, A Critical and Exegetical Commentary on Isaiah 1-27, 1:366–7.
 Leviticus 23:13, Numbers 15:5, 7, 10; 28:14, and Deuteronomy 32:38. Compare with Hosea 9:4.
 Priests: Leviticus 10:9. Compare with Isaiah 28:7 and Ezekiel 44:21. Nazirites: Nazirites: Numbers 6:3–4. Compare with Judges 13:4, 7, 14 and Amos 2:12.
 Proverbs 20:1, 23:20, 30, 31, and 31:4.
 Exodus 34:10, Deuteronomy 3:24, 11:7, Judges 2:7, and Psalm 111:3.
 Psalms 44:2, 64:10, 77:13, 90:16, 95:9, and 145:5.
 Deuteronomy 7:18, 8:2, 9:7, 16:3, and 24:9.
 This phraseology is common throughout Isaiah. For an excellent discussion, see Williamson, A Critical and Exegetical Commentary on Isaiah 1-27, 1:371; W. A. M. Beuken, Jesaja 1-12 (Freiburg: Herders Theologischer Kommentar zum Alten Testament, 2003).
 Williamson, A Critical and Exegetical Commentary on Isaiah 1-27, 1:365.
 By their speech, the people where accusing Yahweh of not being just or holy because he was not carrying out justice. This contrasts with the view of Yahweh as he really is developed in the next chapter (Is 6). Peter J. Gentry, “The Meaning of ‘Holy’ in the Old Testament,” Bibliotheca Sacra 170, no. 677–680 (2013): 211–2.
 This verse connects to Isaiah 5:19 with the word חושׁ. Deuteronomy 32:35 states, “כִּי קָרוֹב יוֹם אֵידָם וְחָשׁ עֲתִדֹת לָמוֹ” and Isaiah 5:19 states, “יְמַהֵר יָחִישָׁה מַעֲשֵׂהוּ.” In a way, it would have been appropriate for Israel to ask for Yahweh to work vengeance on their enemies. But they were wrong in doing so because they asked for vengeance while they “dragged iniquity along with ropes.” They should have repented first. Then, they could have asked for Yahweh to deliver them.
 The word evil (רע) does not necessarily denote evil but can also note bad. It is up to the context to decide whether there is a moral component to it or not. For example, the priests had to decide between good and bad animals (Lv 27:10-14, 33). In the Isaiahnic literature, the child Immanuel would learn the differences between good and bad (Is 7:15-16). But in Isaiah 5:20, it appears that there is a moral component to this word. Thus, the translation of the word as evil is appropriate. C. Dohmen and D. Rick, “רעע,” ed. Johannes G. Botterweck, Helmer Ringgren, and Heinz-Josef Fabry, Theological Dictionary of the Old Testament (Grand Rapids: Eerdmans, 2004).
 Williamson, A Critical and Exegetical Commentary on Isaiah 1-27, 1:385.
 Proverbs 3:7, 9:12, 12:15, and 26:5, 12, 16.
 “Auch in 5:23 tadelt Jesaja die Unsitte der Bestechung und steht darin mit Micha (3:11) in einer Front. Das Gesetz verbietet ausdrücklich die Annahme eines שחד (Ex 23:8; Dt 16:19, s. auch 10:17).” Hans Wildberger, Jesaja, vol. 10, Biblischer Kommentar: Altes Testament Jesaja (Neukirchen-Vluyn: Neukirchener Verlag des Erziehungsvereins, 1972), 61.
 S. R. Driver, A Critical and Exegetical Commentary on Deuteronomy, 3rd ed., International Critical Commentary (Edinburgh: T&T Clark, 1902), lxii.
 S. R. Driver, “Deuteronomy,” ed. James Hastings et al., A Dictionary of the Bible: Dealing with Its Language, Literature, and Contents Including the Biblical Theology (Edinburgh: T&T Clark, 1912), 603. Another type of this argument comes from E. Davies: “Since it is likely that the recipients of the bribe in this instance were the court officials themselves rather than the witnesses (cf. the reference to the śārîm Is. 1:23), it is questionable whether Isaiah was here appealing to any specific legal tradition. Appeal to the law would have served but little purpose, for in those cases where the judges were themselves guilty of judicial misconduct, the laws designed to prevent such abuses would simply not have been discharged.” Davies, Prophecy and Ethics, 94. Davies’s argument overlooks the person to whom Isaiah is appealing. He is not appealing to a strictly human court but to Yahweh’s court (Is 5:1-7). Since the laws were at least encoded in the Covenant Code, if not also the Deuteronomic, then Isaiah would have cited that law to make his case before Yahweh.
 1 Samuel 8:3; 1Kings 15:19; 16:8; cf. Ezekiel 22:12
 Isaiah is not the only text in the Hebrew Bible that juxtaposes two opposing law codes. In the context of manumission arguments, Jeremiah reminded King Zedekiah about what the law said (Jer 34:12–17). He cited Deuteronomy 15:12, which states: “If your kinsman, a Hebrew man or woman, is sold to you, then he shall serve you six years, but in the seventh year you shall set him free.” This citation is approximate. Jeremiah’s quote reads, “Every seventh year each of you must set free any Hebrews who have been sold to you and have served you six years; you must set them free from your service” (Jer 34:14). Then in the next verse, Jeremiah cites part of the law of Jubilee: “You shall thus consecrate the fiftieth year and proclaim a release through the land to all its inhabitants” (Lev 25:10). Views on this passage vary considerably. For an overview of the issues, see Mark Leuchter, “The Manumission Laws in Leviticus and Deuteronomy: The Jeremiah Connection,” Journal of Biblical Literature 127, no. 4 (2008): 635–653. Some, like S. Chavel, explain the insertion of the Holiness Code as the hand of a later editor. Simeon Chavel, “‘Let My People Go!’ Emancipation, Revelation, and Scribal Activity in Jeremiah 34.8-14,” JSOT 76 (1997): 92. Berman critiques this viewpoint, noting that the critics assume a mutually exclusive law code without adequate attention to the type of law presented in the Pentateuch. Berman, “The History of Legal Theory,” 36. D. Carr’s research argues against the editorial view. He studied the editorial work of different ANE documents. He found that if someone edited a document ideologically, they changed the whole document. They did not simply insert one line into the text and then leave it unchanged. Carr, The Formation of the Hebrew Bible: A New Reconstruction, 42–47, 50–56, 67, 71. The point here is that Isaiah is not the only place where multiple citations appear in an argument with the same amount of authority. Isaiah and Jeremiah both use this tactic in their writings.
 Bernard M. Levinson, “You Must Not Add Anything to What I Command You: Paradoxes of Canon and Authorship in Ancient Israel,” Numen 50, no. 1 (2003): 12.
 Erhard Blum, Studien Zur Komposition Des Pentateuch (New York: Walter de Gruyter, 1990), 334; For similar view, see Levinson, “You Must Not Add Anything to What I Command You: Paradoxes of Canon and Authorship in Ancient Israel.”
 Blum, Studien Zur Komposition Des Pentateuch, 358.
 Joshua Berman, “Supersessionist or Complementary? Reassessing the Nature of Legal Revision in the Pentateuchal Law Collections,” Journal of Biblical Literature 135, no. 2 (2016): 202. Otto, “Ersetzen Oder Ergänzen,” 256. Berman identified the underpinnings of Otto’s approach as a type of common-law. Berman, “The History of Legal Theory,” 38.
 Berman, “Supersessionist or Complementary? Reassessing the Nature of Legal Revision in the Pentateuchal Law Collections,” 202.
 Eckart Otto, “Gesetzesfortschreibung Und Pentateuchredaktion,” Zeitschrift für die alttestamentliche Wissenschaft 107, no. 3 (1995): 376. For example, he argues that the upheaval during Josiah’s reign forced the Israel to stop updating the Covenant Code and to create a completely new code (the Deuteronomistic Code) which interpreted and supplemented the Covenant Code. Ibid., 380.
 Berman, “The History of Legal Theory,” 22.
 Berman, “Supersessionist or Complementary? Reassessing the Nature of Legal Revision in the Pentateuchal Law Collections,” 207.