|COURT SYSTEMS |
The court systems of ancient Israel are not fully described in the Old Testament or in any extra-biblical source. Laws governing the conduct of judges and witnesses, reports about leaders who were consulted for legal decisions, and narratives of judicial proceedings supplement the accounts of Moses' appointment of assistant judges (Exodus 18:1) and Jehoshaphat's judicial reform (2 Chronicles 19:1). Archaeological investigation has not yet discovered court documents from ancient Israel.
Legal disputes could be settled at the level of society in which they arose. The head of a family had authority to decide cases within his household without bringing the matter before a professional judge (Genesis 31:1;
Genesis 38:1). The law codes limit his authority in some cases (Numbers 5:11-31;
Deuteronomy 22:13-21). When persons from more than one family were involved, the case was taken before the elders of the town, who were the heads of the extended families living together in that place and represented the community as a whole. The elders would serve as witnesses to a transaction (Deuteronomy 25:5-10;
Ruth 4:1-12), decide guilt or innocence (Deuteronomy 19:1;
Joshua 20:1-6), or execute the punishment due the guilty party (Deuteronomy 22:13-21;
Deuteronomy 25:1-3). The elders helped to preserve the community by seeing that disputes were settled in a manner that everyone would recognize as just.
Disputes between tribes were more difficult to resolve. When a Judahite woman who was the concubine of a Levite living in the territory of Ephraim was raped and murdered in Gibeah of Benjamin, several tribes were involved (Judges 19-21). The Levite, therefore, appealed to all the tribes of Israel for justice. The initial attempts at negotiation were rebuffed when the men of Benjamin refused to hand over the guilty persons for punishment. Israel then went to war against the whole tribe of Benjamin, defeated them, and vowed not to let them intermarry with the rest of the tribes. The biblical historian comments regretfully that this sort of thing happened when there was no king to execute the law (Judges 21:25).
During the period of Israelite history covered by the book of Judges, special judicial authority was possessed by several individuals appointed by God. The so-called “minor judges” (Judges 10:1-5;
Judges 12:8-15) are not credited with delivering Israel from oppression by military means, so their function may have been purely judicial or political. Some scholars have identified their office as “judge of all Israel” in the tribal league, but others have argued that their jurisdiction was over a smaller area. Deborah, and later Samuel, also decided cases. Their judicial activities took place in a limited area (Judges 4:4-5;
1 Samuel 7:15-17). We do not know whether they only heard cases on appeal. The Bible does not say how any of these individuals came to possess their authority as judges. Both Deborah and Samuel were prophets. The other deliverer judges were called by God and possessed by God's Spirit, so judicial authority was probably also a divine gift.
A hierarchical system of courts and judges could exist when political authority was centralized. In
Exodus 18:13-26 Moses appointed assistant judges to decide the smaller cases so that his own energy could be preserved for the difficult ones. A system in which local courts referred complex cases to the supreme judges is described in
Deuteronomy 19:16-19. This was not an appeals court to which dissatisfied parties could bring their cases for reconsideration; it was a court of experts who could pass judgment in cases too complicated for the local judges to decide themselves. The court system instituted by Jehoshaphat also followed this pattern (2 Chronicles 19:4-11). Although appointed by the king, the judges were responsible directly to God (2 Chronicles 19:6). It is not clear whether the residents of Jerusalem went directly to the central court. We only know that Jeremiah was tried in Jerusalem by “the princes of Judah” after being charged by the priests and prophets with a crime worthy of death. The system described in
2 Chronicles 19:1 has both priests and secular officials as judges in the central court in Jerusalem.
The king possessed limited judicial authority. Despite his supreme political power, he was not personally above the law. Saul's death sentences on Jonathan (1 Samuel 14:39) and the priests at Nob (1 Samuel 22:6-23) were not accepted by the people. Jonathan was not punished, and the priests were finally killed by a non-Israelite. David was led to convict himself of his crimes against Uriah and his mistreatment of Absalom (2 Samuel 12:1-6;
2 Samuel 14:1-24). Unlike Saul, David and Solomon were able to exercise authority to execute or spare persons who represented a threat to their reigns (2 Samuel 1:1-16;
2 Samuel 4:1-12;
2 Samuel 19:16-23;
2 Samuel 21:1-14;
1 Kings 2:19-46). Jezebel used the existing town court to dispose of Naboth and confiscate his vineyard. She and Ahab, however, were punished by God for having Naboth executed on trumped-up charges even though Ahab was king (1 Kings 21-22).
Deuteronomy 17:18-20 places the king at the same level as his subjects with respect to the requirements of God's law. In Israel the king did not have the authority to enact new laws or to make arbitrary legal rulings contrary to the prevailing understanding of justice.
The ideal of the just king who oversees the dispensing of justice for all his subjects was known in Israel. In this role the king himself was the leading example of a just and honest judge and was personally involved in hearing cases as well as appointing other judges. Absalom was able to take advantage of David's failure to live up to this ideal (2 Samuel 15:1-6). Solomon is the supreme example of the just king, having been granted discernment and wisdom by God (1 Kings 3:1).
The relationship of the king's court to the rest of the judicial system is uncertain. The wise woman from Tekoah appealed to David, a decision which had been made within her extended family (2 Samuel 14:1). The Shunammite widow successfully appealed to the king of Israel for the restoration of her house and land, which she had abandoned during a time of famine (2 Kings 8:1-6). The famous case of the two prostitutes and their infant sons was brought directly to Solomon without any previous judgment (1 Kings 3:16-28). All of these cases seem to be exceptional. Powerful third parties were involved in the first two cases; Joab set up the audience with David, and the Shunammite had an advocate present in the person of Gehazi, Elisha's servant. The two prostitutes had no families to settle their dispute. We are not certain, therefore, what these accounts can tell us about how cases usually came to be heard by the king. There are no Old Testament laws which define the process of judicial appeal to the king.
Priests also possessed judicial authority. The passages about the high court in Jerusalem mention priests alongside the secular judge (Deuteronomy 17:9;
2 Chronicles 19:8,2 Chronicles 19:11). Some scholars believe that this division between religious and civil courts reflects the post-exilic period, in which the secular authority was that of the Persian king and Jewish priests administered the law of God (Ezra 7:25-26). Israelite priests, however, possessed a body of knowledge from which they ruled on matters pertaining to the worship of God and the purity of the community. The cult and the judicial system were both concerned with removing blood-guilt from the community (Deuteronomy 21:1-9). We cannot determine how the priestly judges were related to the other court systems or how cases were assigned to the various judges.
Actual court procedures may be partially reconstructed as follows. There were no prosecutors or defense attorneys; accuser and accused argued their own cases. The burden of proof lay with the defendant. Physical evidence was presented when necessary (Deuteronomy 22:13-21), but proving one's case depended primarily on testimony and persuasive argument. The word of at least two witnesses was required to convict (Deuteronomy 19:15). The system depended on the honesty of witnesses and the integrity of judges (Exodus 18:21;
Exodus 23:1-3,Exodus 23:6-9;
2 Chronicles 19:6-7). The prophets condemned corrupt judges (Isaiah 1:21-26;
Amos 5:12,Amos 5:15;
Micah 7:3) and those who supported them (Amos 5:10). Cases brought by a malicious witness giving false testimony were referred to the central court (Deuteronomy 19:16-21). In some circumstances the accused could submit to an ordeal or an oath to prove his or her innocence (Exodus 22:6-10;
Deuteronomy 21:1-8). If guilty, he or she would be punished directly by God. Casting lots to discover the guilty party was another extraordinary procedure. In both cases reported in the Bible the person identified also confessed his guilt (Joshua 7:1;
1 Samuel 14:24-46). The judges were responsible to administer punishment, often with the whole community participating (Deuteronomy 21:21). The court systems could only function well when the community agreed with their decisions and cooperated to enforce them. By judging justly, the courts taught God's law and the principles of divine justice. The courts worked together with the people to restore the community to peace and wholeness under God whenever they recognized the one in the right and imposed an appropriate penalty on the guilty one.
Pamela J. Scalise