2017-01-28

Similarities between Biblical and Greek Judicial Systems

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by Neil Godfrey

This post covers just one small set of details addressed by Russell Gmirkin in Plato and the Creation of the Hebrew Bible, legal proceedings. I am keen to get to the next chapter where laws themselves are compared, but to take the question of “Biblical” links with the Greek world as distinct from the Near Eastern culture in its entirety I need to pause and grasp the particulars of each argument. I try to present as much information as necessary for each of us to come to our own conclusions — or questions.

This second chapter of Gmirkin’s book, “Athenian and Pentateuchal Legal Institutions”, is not for light recreational reading. It is a serious text packed with detail. Gmirkin’s approach is to set out paragraphs detailing various Greek practices and institutions, each within its historical context, followed by packed paragraphs of comparable data found the Bible. Without some graphic aids like multiple numbered subheadings or tables it is not always easy to connect the details of Greek practices (sometimes Athenian, sometimes non-Athenian) with those in different parts of the Bible (sometimes, but not always, the Pentateuch, and if the Pentateuch then sometimes with differences found in Deuteronomy.) And then there are the copious end-notes that frequently clarify and support the main text.

As a result I find myself having to take out pen and paper and set out the details in a table form to appreciate the strengths and weaknesses of the case being made. And having gone to that trouble it seems only natural that I should tidy up those tables and share them here.

We are talking here about “the judiciary”. Judges, juries, court hearings.

Relatively little direct comparison and contrast is made with Near Eastern legal processes and institutions. My conclusion is that while some aspects in the biblical judicial systems no doubt overlap with Near Eastern ways, Gmirkin’s point is to show that the biblical processes strongly match Greek ones as well, or perhaps even more completely.

Here is the table setting out some (not all) of Gmirkin’s comparisons, stripped of many details for sake of simplicity:

Pentateuch / Biblical writings

Athens / Greek world

Venues for trials:

  • villages (Num 35.24-25l Dt 16.18-20; 21.5, 18-21; 25.5-10)
  • tribal courts (Dt 1.13, 16)
  • high court at place bearing Yahweh’s name

Hardest cases went to the levitical priests and judges of the day in God’s appointed place.

Difference from Athens: homicide and other capital cases according to the Pentateuch could be heard at the local level.

Multiple courts:

  • Small claims courts at local villages;
  • Appealed cases went to tribal courts;
  • second appeals went to Athens.

In Attica, village courts, tribal courts, military courts and the various courts found at Athens all coexisted with distinct jurisdictions, similar to the multiplicity of courts found in the Pentateuch.” (p. 57)

More on the above:

Three different origin myths are presented to explain the existence of the hierarchy of courts by kinship (tribal) and geography (villages):

  • Ex. 18.13-18 – Jethro’s advice to Moses before Mount Sinai;
  • Dt. 1.9-15 – Instituted by Moses (without Jethro’s counsel) after Mount Sinai;
  • Num. 11.16-17 – the tribal officers’ role was taken over by the “seventy elders of Israel” who assisted Moses.

Wilderness period: cases brought by the people were heard by tribal officers over 1000s, 100s, 50s, 10s. These lesser courts appear to have been standing courts – in all seasons (like Athens).

Hardest/Greatest cases to Moses. These “may be understood” to distinguish between small claims and higher claims/damages. – Or the difference may be between less and more serious (ie criminal) cases; or “more likely” estimation of the legal difficulties.

Deuteronomy: courts distributed geographically – judges appointed in all the tribes and towns.

Deut recorded trials by elders and city gates (i.e. standing court available at all times) and by city assemblies.

Sometimes – Dt. 13.14; 17.2-4; 19.18 – there appears to have been some form of preliminary inquiry before referring a case to trial before the full assembly. – Neo-Babylonian parallels. Certain major cases were referred to authorities for investigation in a separate preliminary hearing. After preliminary investigation magistrates assigned the case to appropriate court for “full trial with public prosecutors appointed by the Assembly.” (p. 30)

Political cases required trial before full Assembly.

In 1 Samuel we read of a roving circuit judge Roving panels of judges were also a feature of Attica under Peisistratus, Pericles and later. These were tribal judges, either 30 or 40, with equal numbers from each of the ten tribes.
Pentateuch: Judicial procedures and rules of evidence compatible with Athenian practices – as follows:
Judges were appointed from the citizens (Deut. 16.18-19); served limited time. Athens had no professional judges or lawyers or police force.
Private citizens had powers of arrest (Num. 13,24);

acted as prosecutors or spoke in their own defence.

Private citizens could arrest a perpetrator of crime and hand over for trial;

and act the role of prosecutor.

Sometimes it was permissible for a person to kill a wrongdoer caught in the act – Num. 25.6-11. Citizens had the right to kill an adulterer, traitor, highwayman, night-thief or temple robber caught in the act. 
Litigants brought defendants to trial and summoned witnesses. – Lev. 5.1; Dt. 25.8; 1 Sam. 22.11. Litigants on both sides were expected to provide their own witnesses. Witnesses would be named at a preliminary hearing and summons issued” (p. 29)
Sometimes offenders were put in custody while awaiting trial. – Lev. 24.12; Num. 15.34 – as in Athens.
Kin brought homicide cases to court;

blood money payment was forbidden.

Cases of murder were presented by relatives of the victim; failure of relatives to prosecute was itself considered a crime” (p. 29)

Compulsory prosecution in the Classical era replaced the option of paying blood money.

Evidence was primarily testimonial – Num. 35:30; Dt. 17.6; 19.15;

hearsay was not permitted – Num. 35.20-21, 30; Deut. 17.6; 19.15.

Uncorroborated testimony bolstered by oaths – cf Greek and Near East.

Evidence was mainly testimonial (written documents acquired an increasingly important place over time);

hearsay was not allowed unless witness was deceased or unavailable.

Uncorroborated testimony bolstered by oaths.

(Plato forbade oaths in his writings because of abuses of the practice. Compare New Testament’s Sermon on the Mount.)

Trial by ordeal: in both Pentateuch and Near East; rare in Athens but not unknown. (Num. 5.12-31)
Pentateuch: required 2 or 3 witnesses in capital cases – as in non-Athenian Greek world. The Gortyn Law Code required 2 or 3 witnesses in certain cases; at Cumae more than one witness was required for homicide conviction.
Perjury was a serious matter in both Athenian and Near Eastern courts. – Ex. 20.16; 22.6-8; 23.1-3; Lev. 5.20-26; Deut. 5.20; 19.16-21. Plato, Laws 11.937d-b
Biblical jurors were forbidden to receive payments or gifts Deut 16.19 Athenian jurors were sworn in with oath containing language “closely comparable” to Deut.

Also Plato, Laws 12.955c.

Judicial procedure not to be perverted by rich minority and powerful few (Isa. 1.23; Job 6.22) NOR by poor majority (Ex. 23.2-3; Lev. 19.15) cf Athenian concerns about corruption after juries were selected from the less wealthy citizenry, leading to first recorded instances of judicial bribery.
Range of penalties similar under biblical and Greek law:

  • execution (stoning)
  • exile (Num 35.25; Dt. 19.3; Josh. 20.4; Ezra 7.26; 10.8)
  • disenfranchisement (Lev. 20.3-6; Ezra 7.26; 10.18; cf Ex. 12.15; Lev. 17.10; Num 9.13)
  • fines (Ex. 22.1, 9, 22, 30, 32; 22.7, 9; Lev. 5.16; 6.5)
  • corporal punishment (Ex. 22.24-25; Lev. 24.20; Deut. 25.103).

Ezra 7.25-26 and 10.8 point to penalties very similar to those in Greek world.

Range of penalties:

  • execution
  • disenfranchisement
  • exile
  • prison
  • stripes (for slaves)
  • fines
Rationale for penalties also the same:

  • retaliation for criminal acts (Ex. 21.12, 14-17; Num. 35.21, 31; Deut 19.19; 24.7)
  • and removal of pollution from land (Num. 35.33; Deut 13.5; 17.12; 19.10, 13, 19; 24.7)
  • and crime prevention (Deut. 13.11; 17.13; 19.20; 21.21).
Purpose of punishment:

  • vengeance
  • purify land of pollution
  • example to others
Private citizens could act as informers to denounce offenders and bring public cases to attention of magistrates for investigation of serious state crimes.

Pentateuchal political crimes included

  • conspiracy to introduce foreign cults,
  • cursing the rulers,
  • misleading the people,
  • overturning decision of a higher court.

Impiety, treason, homicide – tried by full town assembly or by national assembly. – Deut. 13.9, 11, 14-16; 16:19.

Under procedure called eisangelia a private citizen could raise an accusation of threat to democratic state (informers would be granted immunity to testify against their accomplices) – i.e.

  • impiety,
  • treason,
  • conspiracy,
  • bribery,
  • misleading the Assembly.

Political cases generally were heard before the full Assembly (quorum of 6000 citizen jurors).

8 Comments

  • Matt Cavanaugh
    2017-01-30 01:14:06 UTC - 01:14 | Permalink

    For this to be in any way persuasive, it must be shown that these elements are unique to the Greek and biblical systems, and not merely ubiquitous elements of ancient legal systems.

    • James T.
      2017-01-30 21:07:04 UTC - 21:07 | Permalink

      Ancient legal systems like these were rather rare. Most of Africa and North and South America believed in voodoo-like magical codes. CHina believed in Confuscianism.

      So their resemblance is in fact quite significant.

      • Matt Cavanaugh
        2017-01-31 02:23:12 UTC - 02:23 | Permalink

        A meaningful survey would include cultures a little closer to home.

        • James T.
          2017-01-31 20:39:38 UTC - 20:39 | Permalink

          The closer together they are geographically, the higher the likelihood that they were borrowing from each other.

          • Matt Cavanaugh
            2017-02-01 16:19:33 UTC - 16:19 | Permalink

            Neil explains below. The proposition is not that the Hebrews either patterned their legal system after the Greeks’, or both systems arose from a common cultural heritage. The proposition is: the legal system described in the OT never existed, but rather is a fiction patterned on the Greek system.

            My reservation was that merely showing a similarity, without ruling out the former possibility, is not in itself persuasive for the fictional argument. (Though, for all I know Gmirkin or others may address this.)

            • Neil Godfrey
              2017-02-02 00:51:03 UTC - 00:51 | Permalink

              This was first in the series I did not preface with references to the previous posts. I’ll try to be less lazy in future and make sure I introduce each one appropriately.

  • Neil Godfrey
    2017-02-01 09:54:36 UTC - 09:54 | Permalink

    Gmirkin’s argument is not that the authors of the Pentateuch were depicting customs that were borrowed by the population from their neighbours. It is not about normal cultural borrowing.

    The primary argument is that the literary themes and details of the Pentateuch were mediated to the author/s through Greek philosophical and political writings housed in the Library of Alexandria.

    The Pentateuch was a portrayal of an ideal system (in the eyes of its ancient authors) and the model for the ideals was the Greek writings discussing such ideal political and legal systems (Plato) and comparing them with historical examples (Aristotle).

    • James T.
      2017-02-02 09:46:08 UTC - 09:46 | Permalink

      OK. But this would still be just a more complicated form of borrowing, or cross-cultural interchange? Some Jews read Greeks, and this modified their perceptions of their own Jewish tradition.

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