Of the Reason for the Judicial Precepts

Of the Reason for the Judicial Precepts — St. Thomas Aquinas asks: Whether the Old Law enjoined fitting precepts concerning rulers?; Whether the judicial precepts were suitably framed as to the relations of one man with another?; Whether the judicial precepts regarding foreigners were framed in a suitable manner?; Whether the Old Law set forth suitable precepts about the members of the household?.

We must now consider the reason for the judicial precepts: under which head there are four points of inquiry:

Article 1: Whether the Old Law enjoined fitting precepts concerning rulers?

The people of Israel is commended for the beauty of its order (Num. 24:5): "How beautiful are thy tabernacles, O Jacob, and thy tents." But the beautiful ordering of a people depends on the right establishment of its rulers. Therefore the Law made right provision for the people with regard to its rulers.

Two points are to be observed concerning the right ordering of rulers in a state or nation. One is that all should take some share in the government: for this form of constitution ensures peace among the people, commends itself to all, and is most enduring, as stated in Polit. ii, 6. The other point is to be observed in respect of the kinds of government, or the different ways in which the constitutions are established. For whereas these differ in kind, as the Philosopher states (Polit. iii, 5), nevertheless the first place is held by the "kingdom," where the power of government is vested in one; and "aristocracy," which signifies government by the best, where the power of government is vested in a few. Accordingly, the best form of government is in a state or kingdom, where one is given the power to preside over all; while under him are others having governing powers: and yet a government of this kind is shared by all, both because all are eligible to govern, and because the rules are chosen by all. For this is the best form of polity, being partly kingdom, since there is one at the head of all; partly aristocracy, in so far as a number of persons are set in authority; partly democracy, i.e. government by the people, in so far as the rulers can be chosen from the people, and the people have the right to choose their rulers.

Such was the form of government established by the Divine Law. For Moses and his successors governed the people in such a way that each of them was ruler over all; so that there was a kind of kingdom. Moreover, seventy-two men were chosen, who were elders in virtue: for it is written (Dt. 1:15): "I took out of your tribes wise and honorable, and appointed them rulers": so that there was an element of aristocracy. But it was a democratical government in so far as the rulers were chosen from all the people; for it is written (Ex. 18:21): "Provide out of all the people wise [Vulg.: 'able'] men," etc.; and, again, in so far as they were chosen by the people; wherefore it is written (Dt. 1:13): "Let me have from among you wise [Vulg.: 'able'] men," etc. Consequently it is evident that the ordering of the rulers was well provided for by the Law.

Article 2: Whether the judicial precepts were suitably framed as to the relations of one man with another?

It is recalled as a special blessing (Ps. 147:20) that "He hath not done in like manner to every nation; and His judgments He hath not made manifest to them."

As Augustine says (De Civ. Dei ii, 21), quoting Tully, "a nation is a body of men united together by consent to the law and by community of welfare." Consequently it is of the essence of a nation that the mutual relations of the citizens be ordered by just laws. Now the relations of one man with another are twofold: some are effected under the guidance of those in authority: others are effected by the will of private individuals. And since whatever is subject to the power of an individual can be disposed of according to his will, hence it is that the decision of matters between one man and another, and the punishment of evildoers, depend on the direction of those in authority, to whom men are subject. On the other hand, the power of private persons is exercised over the things they possess: and consequently their dealings with one another, as regards such things, depend on their own will, for instance in buying, selling, giving, and so forth. Now the Law provided sufficiently in respect of each of these relations between one man and another. For it established judges, as is clearly indicated in Dt. 16:18: "Thou shalt appoint judges and magistrates in all its [Vulg.: 'thy'] gates . . . that they may judge the people with just judgment." It is also directed the manner of pronouncing just judgments, according to Dt. 1:16,17: "Judge that which is just, whether he be one of your own country or a stranger: there shall be no difference of persons." It also removed an occasion of pronouncing unjust judgment, by forbidding judges to accept bribes (Ex. 23:8; Dt. 16:19). It prescribed the number of witnesses, viz. two or three: and it appointed certain punishments to certain crimes, as we shall state farther on ().

But with regard to possessions, it is a very good thing, says the Philosopher (Polit. ii, 2) that the things possessed should be distinct, and the use thereof should be partly common, and partly granted to others by the will of the possessors. These three points were provided for by the Law. Because, in the first place, the possessions themselves were divided among individuals: for it is written (Num. 33:53,54): "I have given you" the land "for a possession: and you shall divide it among you by lot." And since many states have been ruined through want of regulations in the matter of possessions, as the Philosopher observes (Polit. ii, 6); therefore the Law provided a threefold remedy against the regularity of possessions. The first was that they should be divided equally, wherefore it is written (Num. 33:54): "To the more you shall give a larger part, and to the fewer, a lesser." A second remedy was that possessions could not be alienated for ever, but after a certain lapse of time should return to their former owner, so as to avoid confusion of possessions (cf. ad 3). The third remedy aimed at the removal of this confusion, and provided that the dead should be succeeded by their next of kin: in the first place, the son; secondly, the daughter; thirdly, the brother; fourthly, the father's brother; fifthly, any other next of kin. Furthermore, in order to preserve the distinction of property, the Law enacted that heiresses should marry within their own tribe, as recorded in Num. 36:6.

Secondly, the Law commanded that, in some respects, the use of things should belong to all in common. Firstly, as regards the care of them; for it was prescribed (Dt. 22:1-4): "Thou shalt not pass by, if thou seest thy brother's ox or his sheep go astray; but thou shalt bring them back to thy brother," and in like manner as to other things. Secondly, as regards fruits. For all alike were allowed on entering a friend's vineyard to eat of the fruit, but not to take any away. And, specially, with respect to the poor, it was prescribed that the forgotten sheaves, and the bunches of grapes and fruit, should be left behind for them (Lev. 19:9; Dt. 24:19). Moreover, whatever grew in the seventh year was common property, as stated in Ex. 23:11 and Lev. 25:4.

Thirdly, the law recognized the transference of goods by the owner. There was a purely gratuitous transfer: thus it is written (Dt. 14:28,29): "The third day thou shalt separate another tithe . . . and the Levite . . . and the stranger, and the fatherless, and the widow . . . shall come and shall eat and be filled." And there was a transfer for a consideration, for instance, by selling and buying, by letting out and hiring, by loan and also by deposit, concerning all of which we find that the Law made ample provision. Consequently it is clear that the Old Law provided sufficiently concerning the mutual relations of one man with another.

Article 3: Whether the judicial precepts regarding foreigners were framed in a suitable manner?

Divine Wisdom declares (Prov. 8:8): "All my words are just, there is nothing wicked nor perverse in them."

Man's relations with foreigners are twofold: peaceful, and hostile: and in directing both kinds of relation the Law contained suitable precepts. For the Jews were offered three opportunities of peaceful relations with foreigners. First, when foreigners passed through their land as travelers. Secondly, when they came to dwell in their land as newcomers. And in both these respects the Law made kind provision in its precepts: for it is written (Ex. 22:21): "Thou shalt not molest a stranger [advenam]"; and again (Ex. 22:9): "Thou shalt not molest a stranger [peregrino]." Thirdly, when any foreigners wished to be admitted entirely to their fellowship and mode of worship. With regard to these a certain order was observed. For they were not at once admitted to citizenship: just as it was law with some nations that no one was deemed a citizen except after two or three generations, as the Philosopher says (Polit. iii, 1). The reason for this was that if foreigners were allowed to meddle with the affairs of a nation as soon as they settled down in its midst, many dangers might occur, since the foreigners not yet having the common good firmly at heart might attempt something hurtful to the people. Hence it was that the Law prescribed in respect of certain nations that had close relations with the Jews (viz., the Egyptians among whom they were born and educated, and the Idumeans, the children of Esau, Jacob's brother), that they should be admitted to the fellowship of the people after the third generation; whereas others (with whom their relations had been hostile, such as the Ammonites and Moabites) were never to be admitted to citizenship; while the Amalekites, who were yet more hostile to them, and had no fellowship of kindred with them, were to be held as foes in perpetuity: for it is written (Ex. 17:16): "The war of the Lord shall be against Amalec from generation to generation."

In like manner with regard to hostile relations with foreigners, the Law contained suitable precepts. For, in the first place, it commanded that war should be declared for a just cause: thus it is commanded (Dt. 20:10) that when they advanced to besiege a city, they should at first make an offer of peace. Secondly, it enjoined that when once they had entered on a war they should undauntedly persevere in it, putting their trust in God. And in order that they might be the more heedful of this command, it ordered that on the approach of battle the priest should hearten them by promising them God's aid. Thirdly, it prescribed the removal of whatever might prove an obstacle to the fight, and that certain men, who might be in the way, should be sent home. Fourthly, it enjoined that they should use moderation in pursuing the advantage of victory, by sparing women and children, and by not cutting down fruit-trees of that country.

Article 4: Whether the Old Law set forth suitable precepts about the members of the household?

It is written (Ps. 18:10): "The judgments of the Lord are true, justified in themselves."

The mutual relations of the members of a household regard everyday actions directed to the necessities of life, as the Philosopher states (Polit. i, 1). Now the preservation of man's life may be considered from two points of view. First, from the point of view of the individual, i.e. in so far as man preserves his individuality: and for the purpose of the preservation of life, considered from this standpoint, man has at his service external goods, by means of which he provides himself with food and clothing and other such necessaries of life: in the handling of which he has need of servants. Secondly man's life is preserved from the point of view of the species, by means of generation, for which purpose man needs a wife, that she may bear him children. Accordingly the mutual relations of the members of a household admit of a threefold combination: viz. those of master and servant, those of husband and wife, and those of father and son: and in respect of all these relationships the Old Law contained fitting precepts. Thus, with regard to servants, it commanded them to be treated with moderation---both as to their work, lest, to wit, they should be burdened with excessive labor, wherefore the Lord commanded (Dt. 5:14) that on the Sabbath day "thy manservant and thy maidservant" should "rest even as thyself"---and also as to the infliction of punishment, for it ordered those who maimed their servants, to set them free (Ex. 21:26,27). Similar provision was made in favor of a maidservant when married to anyone (Ex. 21:7, seqq.). Moreover, with regard to those servants in particular who were taken from among the people, the Law prescribed that they should go out free in the seventh year taking whatever they brought with them, even their clothes (Ex. 21:2, seqq.): and furthermore it was commanded (Dt. 15:13) that they should be given provision for the journey.

With regard to wives the Law made certain prescriptions as to those who were to be taken in marriage: for instance, that they should marry a wife from their own tribe (Num. 36:6): and this lest confusion should ensue in the property of various tribes. Also that a man should marry the wife of his deceased brother when the latter died without issue, as prescribed in Dt. 25:5,6: and this in order that he who could not have successors according to carnal origin, might at least have them by a kind of adoption, and that thus the deceased might not be entirely forgotten. It also forbade them to marry certain women; to wit, women of strange nations, through fear of their losing their faith; and those of their near kindred, on account of the natural respect due to them. Furthermore it prescribed in what way wives were to be treated after marriage. To wit, that they should not be slandered without grave reason: wherefore it ordered punishment to be inflicted on the man who falsely accused his wife of a crime (Dt. 22:13, seqq.). Also that a man's hatred of his wife should not be detrimental to his son (Dt. 21:15, seqq.). Again, that a man should not ill-use his wife through hatred of her, but rather that he should write a bill of divorce and send her away (Dt. 24:1). Furthermore, in order to foster conjugal love from the very outset, it was prescribed that no public duties should be laid on a recently married man, so that he might be free to rejoice with his wife.

With regard to children, the Law commanded parents to educate them by instructing them in the faith: hence it is written (Ex. 12:26, seqq.): "When your children shall say to you: What is the meaning of this service? You shall say to them: It is the victim of the passage of the Lord." Moreover, they are commanded to teach them the rules of right conduct: wherefore it is written (Dt. 21:20) that the parents had to say: "He slighteth hearing our admonitions, he giveth himself to revelling and to debauchery."