Exodus 22:9 contains this puzzling command:
"In any case of disputed ownership involving ox, donkey, sheep, clothing,
or any other loss, of which one party says, 'This is mine,' the case of
both parties shall come before God ['elohim']; the one whom God ['elohim'] condemns shall pay double
to the other." (Exodus 2:9).
What does it mean for the disputants to come "before God"? Since
God is omnipresent, everyplace you can go is "before God": "Neither
is there any creature that is not manifest in his sight: but all things
are naked and opened unto the eyes of him with whom we have to do."
"Where can I go from Your Spirit?
Or where can I flee from Your presence?
If I ascend into heaven, You are there;
If I make my bed in hell, behold, You are there.
If I take the wings of the morning,
And dwell in the uttermost parts of the sea,
Even there Your hand shall lead me,
And Your right hand shall hold me." (Psalm 139:7-10).
U.S. constitutional law demands a law be comprehensible in order to be
a law at all. The vagrancy laws once common in U.S. cities fell to the
ground on this point: no one could specify just what the bum seated on
the park bench had to do to avoid prosecution under laws which could not objectively distinguish
between him and the travelling salesman seated next to him. In this law
and several others, disputants are commanded to go before God ['elohim']:
"But if the slave declares, 'I love my master, my wife, and my children;
I will not go out a free person,' then his master shall bring him before
God ['elohim']. He shall be brought to the door or the doorpost; and his master shall
pierce his ear with an awl; and he shall serve him for life."
"If the thief is not caught, the owner of the house shall be brought
before God ['elohim'], to determine whether or not the owner had laid hands on the neighbor’s
goods." (Exodus 22:8).
Similar instructions are common in the laws of pagan peoples:
"If a seignior deposited his grain in another seignior's house for
storage and a loss has then occurred at the granary...the owner of the
grain shall set forth the particulars regarding his grain in the presence
of god and the owner of the house shall give to the owner of the grain
double the grain that he took." (120, The Code of Hamurabi, p. 151,
The Ancient Near East, Volume I, James B. Pritchard).
It is easy enough to come into the presence of a pagan idol, and all the
gods of the nations are idols: "For all the gods of the peoples are
idols, but the LORD made the heavens." (Psalm 96:5). But no idol can
lawfully be made of the living God: "Take careful heed to yourselves,
for you saw no form when the LORD spoke to you at Horeb out of the midst
of the fire, lest you act corruptly and make for yourselves a carved image
in the form of any figure: the likeness of male or female, the likeness
of any animal that is on the earth or the likeness of any winged bird that
flies in the air, the likeness of anything that creeps on the ground or
the likeness of any fish that is in the water beneath the earth."
(Deuteronomy 4:15-18). So this cannot be the meaning.
Might it mean that such cases would have to come before the Sanhedrin which
met in the temple precincts, where God made His name to dwell? Theologians
understood the idea of God dwelling in one particular locale was
problematical; God cannot be contained: "But
will God indeed dwell on the earth? Behold, heaven and the heaven of heavens
cannot contain You. How much less this temple which I have built! Yet regard
the prayer of Your servant and his supplication, O LORD my God, and listen
to the cry and the prayer which Your servant is praying before You today:
that Your eyes may be open toward this temple night and day, toward the
place of which You said, ‘My name shall be there,’ that You may hear the
prayer which Your servant makes toward this place."
(1 Kings 8:27-29).
But nevertheless, the LORD was understood to have graciously made
His glorious presence to dwell particularly in the tabernacle and
temple, and thus Nadab and Abihu died "before the LORD," before His
face or presence: "And there went out fire from the LORD, and
devoured them, and they died before the LORD." (Leviticus 10:2).
We do not have a record of case law for the Mosaic code, as we do
for our own humbler productions. Surely this issue was adjudicated
more than once. What exactly does it mean to appear before the face
of God, as is mandated, for example, in Exodus 23:17?: "Three times
in the year all your males shall appear before [paniym, the 'face'
of] the Lord GOD." The
fantasists who studied the Bible in nineteenth century Germany used
to say that the law of Moses was an ideal, imaginary law invented
after the exile, which had never been in force. Yet it certainly
must have been in force, and it must have been possible for a man to
prove that he had done this as required. There is no 'law' if no one can
understand what is to be done, and if in dispute, prove that it was
or was not done. In this case, it likely
means to have gone to the temple or tabernacle, where the face of
God could be encountered by His gracious extension, as shown for instance in David's lament in Psalm 42
when he has lost the privilege: "When shall I come and appear before
[paniym, the 'face' of] God?" (Psalm 42:2). While the
temple or tabernacle is a perfectly adequate solution, this is not
the procedure laid down; with our index case of Exodus 22:9, the
disputants are not in fact expected to go there, because if "before God" means to bring the disputants to the temple,
every party to a 'Who owns the sheep?' quarrel would have to trek to Jerusalem.
Since the journeying cost could well exceed the value of the disputed
"clothing" or "sheep", one cannot imagine the whole
house of Israel trekking to Jerusalem to adjudicate a 'Who owns the sheep'-style
dispute, nor that the Sanhedrin could be expected to exhaust all available
court-time with Judge Wapner-scale small claims cases.
For Exodus 22:9 to be a workable law, we must figure out where the
disputants should go and what procedure they should follow once they get
there: "In any case of disputed ownership involving ox, donkey, sheep,
clothing, or any other loss, of which one party says, 'This is mine,' the
case of both parties shall come before ['elohim']; the one whom ['elohim'] condemns shall pay double
to the other." Where to go? What to do? Should these cases, to be adjudicated by the judgment by God, be decided
by divine oracle or lot? But Moses' law lays out standards of due process
requiring an evidentiary hearing before judges: "Nicodemus (he who
came to Jesus by night, being one of them) said to them, 'Does our law
judge a man before it hears him and knows what he is doing?'" (John
7:50-51). This is an established principle of Moses' law:
"One witness shall not rise against a man concerning any iniquity
or any sin that he commits; by the mouth of two or three witnesses the
matter shall be established." (Deuteronomy 19:15).
"Then I commanded your judges at that time, saying, 'Hear the cases
between your brethren, and judge righteously between a man and his brother
or the stranger who is with him. You shall not show partiality in judgment;
you shall hear the small as well as the great; you shall not be afraid
in any man’s presence, for the judgment is God's.'"
So compliance with Moses' own standards of due process requires an evidentiary
hearing. As a matter of rational legal procedure, one must suppose the
local judges would handle such disputes. Judges were available locally:
"And let them judge the people at all seasons: and it shall be, that
every great matter they shall bring unto thee, but every small matter they
shall judge: so shall it be easier for thyself, and they shall bear the
burden with thee." (Exodus 18:22);
"Judges and officers shalt thou make thee in all thy gates, which
the LORD thy God giveth thee, throughout thy tribes: and they shall judge
the people with just judgment." (Deuteronomy 16:18).
These 'Who owns the sheep' disputes are the bread and butter of Judge Wapner
and colleagues. The normal way to decide them would be through local judicial
inquiry into who is presently in possession of the property. And so it
was: "The elders administering justice in the gate of Bethlehem,
though their town be little among the thousands of Judah, sit in
God’s seat as truly as King Solomon on his ivory throne in the porch
of judgment at Jerusalem." (Spurgeon, Charles. The Treasury of David
(Kindle Locations 42808-42809). GLH Publishing.) But
how does the judgment of the Judge Wapners of ancient Israel equate to the
judgment of God?
One way to clarify legal puzzles is to examine precedent, and this is decisive
here. What did the children of Israel do in Moses' day to bring a case "before God"? This:
"And so it was, on the next day, that Moses sat to judge the people;
and the people stood before Moses from morning until evening. So when Moses'
father-in-law saw all that he did for the people, he said, 'What is this
thing that you are doing for the people? Why do you alone sit, and all
the people stand before you from morning until evening?' And Moses said
to his father-in-law, 'Because the people come to me to inquire of God. When they have
a difficulty, they come to me, and I judge between one
and another; and I make known the statutes of God and His laws.' So Moses’
father-in-law said to him, 'The thing that you do is not good. Both you
and these people who are with you will surely wear yourselves out. For
this thing is too much for you; you are not able to perform it by yourself.
Listen now to my voice; I will give you counsel, and God will be with you:
Stand before God for the people, so that you may bring the difficulties
to God. And you shall teach them the statutes and the laws, and show them
the way in which they must walk and the work they must do. Moreover you
shall select from all the people able men, such as fear God, men of truth,
hating covetousness; and place such over them to be rulers of thousands,
rulers of hundreds, rulers of fifties, and rulers of tens. And let them
judge the people at all times. Then it will be that every great matter
they shall bring to you, but every small matter they themselves shall judge.
So it will be easier for you, for they will bear the burden with you. If
you do this thing, and God so commands you, then you will be able to endure,
and all this people will also go to their place in peace.' So Moses heeded
the voice of his father-in-law and did all that he had said."
At first they went to Moses the prophet to hear the judgment of God, then
they went before the judges. Thus, one realizes with a start that
the 'elohim' who condemn the guilty are, constructively, the judges God ordained to
judge Israel; in these passages, God has shared His title with men. He
promised that His spirit would rest upon the seventy elders of the Sanhedrin,
and that He would be with them, and with the local judges, in the judgment;
"So the LORD said to Moses: 'Gather to Me seventy men of the elders
of Israel, whom you know to be the elders of the people and officers over
them; bring them to the tabernacle of meeting, that they may stand there
with you. Then I will come down and talk with you there. I will take of the Spirit that is upon you and will put
the same upon them; and they shall bear the burden of the people with you, that you may not
bear it yourself alone.'" (Numbers 11:16-17).
"Then he [Jehoshaphat] set judges in the land throughout all the fortified
cities of Judah, city by city, and said to the judges, 'Take heed to what
you are doing, for you do not judge for man but for the LORD, who is with you in the judgment. Now therefore, let
the fear of the LORD be upon you; take care and do
it, for there is no iniquity with the LORD our God, no partiality, nor
taking of bribes.' Moreover in Jerusalem, for the judgment of the LORD
and for controversies, Jehoshaphat appointed some of the Levites and priests,
and some of the chief fathers of Israel, when they returned to Jerusalem.
And he commanded them, saying, 'Thus you shall act in the fear of the LORD,
faithfully and with a loyal heart: Whatever case comes to you from your
brethren who dwell in their cities, whether of bloodshed or offenses against
law or commandment, against statutes or ordinances, you shall warn them,
lest they trespass against the LORD and wrath come upon you and your brethren.
Do this, and you will not be guilty... Behave courageously, and the LORD
will be with the good.'" (2 Chronicles 19:5-11).
Thus we get to the traditional interpretation of Psalm 82: "With respect
to the passage in #Nu 15:16 they [the Rabbis] say, "There is no judgment
less than three"; and that three persons sitting in judgment, the
divine Majesty is with them, they conclude from #Ps 82:1 "he judgeth
among the gods", 'elohim.' Hence they further observe, that "no sanhedrin, or court of judicature,
is called 'elohim' unless it consists of three"." (John Gill, Body
of Divinity, Book 1, 27). Psalm 82 was understood to apply to synagogue
worship and to the sitting of a court:
"Rabin b. R. Adda says in the name of R. Isaac: How do you know
that the Holy One, blessed be He, is to be found in the Synagogue?
For it is said: God standeth in the congregation of God. And how
do you know that if ten people pray together the Divine presence is
with them? For it is said: 'God standeth in the congregation of
God'. And how do you know that if three are sitting as a court of
judges the Divine Presence is with them? For it is said: In the
midst of the judges He judgeth." (Babylonian Talmud,
Tractate Berakoth, Folio 6a).
"R. Halaphtha of the village of Hananiah said: 'When ten
sit and are occupied in words of Law the Shekhina is among them, as
it is written [Ps. lxxxii. 1]: "God standeth in the Congregation of
God.". . .And whence even three? It is written [Ps. lxxxii. 1]: "In
the midst of judges doth he judge' (and the number of judges is
generally three)."'" (The Babylonian Talmud, edited by Michael L. Rodkinson, Volume 9, Tract Aboth, Chapter III, Kindle location
"Judges should also know whom it is they
are judging, before whom they are judging, and who will call them to
account [if they pervert justice], as it is written: God standeth in
the Congregation of God [in the midst of judges doth He judge]. And
thus it is said, concerning Jehoshaphat, He said to the judges,
Consider what ye do, for ye judge not for man, but for the Lord. And
lest the judge should say: Why have all this trouble and
responsibility? It is further said: He is with you in giving
judgment." (Babylonian Talmud, Sanhedrin 6b).
Whether this represents a distant reminiscence of actual case law
cannot now be known. Of course the vagaries of Talmudic interpretation are by no means
binding upon Christians, but when the interpretation makes sense, why
not hop on board? Going before 'elohim' is thus understood under some circumstances to mean,
in practice, going before the 'judges:'
"Because it states [Ex. xxii. 8]: 'Before the judges,' etc.,
and in Babylon the majority of the judges are not ordained, is it
not the same with damages caused by one ox to another, etc.—
for they are all mentioned together in the Scripture, where the word
'Eloim' is written, which means ordained judges?"
(The Babylonian Talmud, edited by Michael L. Rodkinson,
Volume 10, Trace Baba Kama, The First Gate, Chapter VIII, Kindle location
The promise of visitation by the divine
presence in judging was not unconditional however:
"'When three establish a court, the Shechinah is with
them,' and God says to the judges, 'Think not that you are alone, I
am sitting with you,' but when they are about to corrupt judgment,
that is, to give a false verdict, God removes his Shechinah from
among them, as it is said, 'For the oppression of the poor, for the
sighing of the needy (caused by injustice), now I will rise (to
leave the Court), saith the Lord.' The same thought is expressed
elsewhere as follows: 'When the judge sitteth and delivereth just
judgment, the Holy One, blessed be he, leaves — if it were possible
to say so — the heaven of heavens and makes his Shechinah dwell on
his side, as it is said, "And when the Lord was with the judge"
(Judg. 2. 18), but when he sees that the judge is a respecter of
persons, he removes his Shechinah, and returns to heaven. And the
angels say unto him, "Master of the world, what hast thou done?"
(what is the reason for this removal), and he answers, "I have found
that the judge is a respecter of persons, and I rose from there."'"
(Aspects of Rabbinic Theology, Solomon Schechter, pp. 229-230).
A bungled judgment causes the Shechinah, God's presence, to depart:
"R. Nahman said, reporting R. Jonathan: A judge who delivers a judgment in
perfect truth causes the Shechinah to dwell in Israel, for it is
written: God standeth in the Congregation of God; in the midst of
the judges He judgeth. And he who does not deliver judgments in
perfect truth causes the Shechinah to depart from the midst of
Israel, for it is written: Because of the oppression of the poor,
because of the sighing of the needy, now will I arise, saith the
Lord." (Babylonian Talmud, Sanhedrin 7a).
Thus the Rabbis understood the "assembly" of 'elohim' described
in Psalm 82 to be convened every time a court of law met. God judged in
the midst of the human judges; they were judges, but they had a Judge above
them. This is an early version of Matthew 18:20, "For where two or
three are gathered together in My name, I am there in the midst of them."
It is this usage which sets up the double-entendre of Psalm 82. The church
inherited this interpretation from the synagogue: “For He did not
make that law concerning deities of wood and of stone, which are
abominable, because they are falsely called gods, but concerning the
priests and the judges, to whom He also said, 'Ye are gods, and
children of the Most High.'” (Apostolic Constitutions, Book 2,
Section 4, Chapter XXXI., p. 816, ECF_0_07). There is more to this
rationally defensible interpretation than just tradition, as I have
tried to show.
A different interpretation was offered by Jerome, the translators of the
Peshitta, and Donald Grey Barnhouse among others: that Psalm 82 describes
an assembly of angels: "God stands in the congregation of angels;
he judges among the angels." (Psalm 82:1, Peshitta, George M. Lamsa).
The practical jurist might wonder how to schedule a hearing before
such judges, as the law does require. Moreover angels do not die: "But those who are counted worthy to attain
that age, and the resurrection from the dead, neither marry nor are given
in marriage; nor can they die anymore, for they are equal to the angels
and are sons of God, being sons of the resurrection."
Nor is it known to the Bible that fallen angels have taken on man's mortality:
"And the angels who did not keep their proper domain, but left their
own abode, He has reserved in everlasting chains under darkness for the
judgment of the great day;..." (Jude 1:6). So if the 'elohim' of Psalm 82 are angels, why do they die?: "Nevertheless you will
die like men, and fall like any one of the princes." (82:7).
Much more so if they were pagan sky-gods, as some readers imagine. After
all, even the pagans realized the gods, if they are gods, are immortal.
Thus arose the proverb that the Cretans are liars (Titus) 1:12 -- because
they claimed to have on their territory the tomb of Zeus!: "Cretans
ever do lie; for a tomb, O Prince, did they fashion Even for thee; but
thou art not dead, for thy life is unending." (Callimachus, quoted
p. 79, Clement of Alexandria, Loeb Edition). The pagan theologians realized
this unique tourist attraction presented difficulties; how can Zeus, their
chief god, be lying in a tomb?
Some readers hear the doom pronounced: "you will die like men,"
to be a new thing, rather than a reminder that these 'elohim' share in God's work, not in His immortal nature. But those whom God condemns
to death, in scripture, are not presumed immortal to begin with: the followers
of Jezebel were not immortal to begin with before they were told, "And
I will kill her children with death." (Revelation 2:23). The king
of Tyre was not immortal to begin with, because God told him, "And
you shall die the death of the slain in the midst of the seas." (Ezekiel
28:8). So the fact that these 'elohim' die like flies should clue us that they haven't the nature of gods, nor
of angels; these mortality-prone 'elohim' are human judges. Uneasy lies the head that wears the crown, they say,
and human rulers are prone to fall "like one of the princes."
They are in the same line of work as is the living God, however: (Deuteronomy
1:17). They judge -- not with God's justice, but with human injustice:
"How long will you judge unjustly?" (82:2). In this life, we
do not yet see God face to face; He is greater than our ability to conceive:
"...for God is greater than our heart, and knows all things."
(1 John 3:20). So we have to raise our sights perhaps to glimpse Him, painfully
and slowly, winching our hearts and minds upward by analogy. God is a Shepherd:
"The LORD is my shepherd, I shall not want" (Psalm 23:1), because
like a Shepherd, He leads His flock. He is a King: "The LORD is King
forever and ever; nations have perished form His land."
And He is a Judge: "Shall not the Judge of all the earth deal justly?"
God revealed to mankind, as clearly as could be wished, that He is alone
God: "Know therefore today, and take it to your heart, that the LORD,
He is God in heaven above and on the earth below; there is no other."
(Deuteronomy 4:39). But some aren't willing to take His word on it. We
cannot in this life see Him as He is; we approach Him from afar through
analogy with human experience, or even negation. At this, a light glimmers
in the eyes of Joseph Smith, who thinks he sees an avenue to unravel God's
own revelation of monotheism. God is a Shepherd -- but there are many shepherds.
God is a King -- but there are many kings. God is a Judge -- but there
are many judges: "Then his master shall bring him unto the judges
['elohim']; he shall also bring him to the door, or unto the door post; and his
master shall bore his ear through with an aul; and he shall serve him for
ever." (Exodus 21:6 KJV).