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The filet mignon of the word, part 21, Case law and Principle

Other than the Ten Commandments, most of the law of Moses is written in terms of case law. In other words, the law is written in terms of specific cases rather than in terms of principles. It is left to us to understand the principles behind case law. So when the law speaks of sheep or donkeys or oxen (Exodus 22:4), the unstated principle is not limited to those animals but applies more broadly to property in general.

A legalist will interpret the law narrowly and limit the scope of the law to that which is specified. This type of thinking, when it is established in the minds of the judges, creates traditions of men that become ingrained in the culture itself. Such traditions are men’s uninspired understanding of the law and are presumed to be the correct views of the law.

We must always acknowledge the distinction between the law and our understanding of the law. Otherwise, as Isaiah states, we may end up violating the law by our traditions (Matthew 15:8, 9).

An example of case law is seen in Exodus 22:6,

⁶ If a fire breaks out and spreads to thorn bushes, so that stacked grain or the standing grain or the field itself is consumed, he who started the fire shall surely make restitution.

A legalist who is accused of starting a destructive fire may argue that the fire did not spread to “thorn bushes” but rather ignited nearby trees, and that, therefore, the law does not apply in his case. Someone else may insist that this has nothing to do with the way in which our tongue may start a gossip fire. Yet James 3:5 tells us,

⁵ So also the tongue is a small part of the body, and yet it boasts of great things. See how great a forest is set aflame by such a small fire.

James was able to see beyond the case law and apply the principle to the tongue. The law itself places liability and accountability upon the one who lit the fire. It is the principle of ownership by right of creation through one’s labor.

Again, Exodus 21:33, 34 says,

³³ If a man opens a pit or digs a pit and does not cover it over, and an ox or a donkey falls into it, ³⁴ the owner of the pit shall make restitution; he shall give money to its owner, and the dead animal shall become his.

A man does not have to push the ox or donkey into the open pit in order to be liable. He is liable simply because he owns the open pit. The same principle holds true if a man’s ox gores a neighbor (Exodus 21:35, 36). The ox is not the only one that is liable; the owner is liable as well, because he is its owner. The owner does not have to instruct the ox to gore the neighbor in order to incur liability. Ownership is the underlying issue.

Deuteronomy 22:8 adds more case law to this principle,

⁸ When you build a new house, you shall make a parapet for your roof, so that you will not bring bloodguilt on your house if anyone falls from it.

This is a principle that takes us back to the garden of Eden. When God put the tree of the knowledge of good and evil in the garden and did not fence it off, He made Himself liable for Adam’s fall. It was the equivalent of failing to build a railing on the roof. In this way, God obligated Himself to pay for all damages caused by Adam’s fall off the roof or into the pit. This law of liability makes the restoration of all things mandatory.

The Law is Prophetic

When I began to study the law of God many years ago, it soon struck me that the law is prophetic. It is not merely a moral document that defined sin and righteousness. It is prophetic because it tells us how God runs the universe and how He judges humanity according to the standard of His own nature.

So also we read in Leviticus 19:32,

³² You shall rise up before the grayheaded and honor the aged, and you shall revere your God; I am the Lord.

Daniel 7:9, 10 applies this prophetically to the Ancient of Days (that is, the Old Man), who comes to judge the world. He is pictured as having “the hair of His head like pure wool,” to qualify as “the aged.” When He walks into the courtroom, all rise. The dead are raised and are summoned to the court and are adjured to speak the truth, the whole truth, and nothing but the truth. That is where every tongue confesses Christ as Lord (Philippians 2:11) and every knee bows.

The point is that the law in Leviticus 19:32 applies prophetically to the great White Throne judgment and not merely to men who are “grayheaded” and “aged.” To know the law is to know the principles behind each law, so that these may be applied in other situations.

In the same way, Old Covenant types and shadows have different applications under the New Covenant. Whereas the law specifies lambs, bulls, goats, and birds as lawful sacrifices, John the Baptist called Jesus “the Lamb of God” (John 1:29). Those who have an Old Covenant mindset cannot think beyond literal animals. Yet we who are under the New Covenant understand that the blood of bulls and goats can never remove sin (Hebrews 10:4). A greater Sacrifice was needed.

Male and Female

Biblical case law is usually stated in terms of men only, but the principle applies to both men and women. Paul understood this as well, stating in Galatians 3:28,

²⁸ There is neither Jew nor Greek, there is neither slave nor free man, there is neither male nor female; for you are all one in Christ Jesus.

This was not a new law, nor did it contradict the law of Moses. It only contradicted the traditions of men which had excluded women and gentiles from entering the inner part of the courtyard in the temple. The dividing wall separating the two parts of the courtyard was never commanded in Scripture. Jesus corrected this by abolishing that dividing wall (Ephesians 2:14).

Occasionally, the law itself mentions both male and female, men and women, especially when it establishes a principle without resorting to case law. Lepers were separated from the camp and excluded from the temple, whether they were male or female (Numbers 5:2, 3). Again, we read in Numbers 5:6, 7,

⁶ Speak to the sons of Israel, “When a man or woman commits any of the sins of mankind, acting unfaithfully against the Lord, and that person is guilty, ⁷ then he shall confess his sins which he has had committed, and he [or she] shall make restitution in full for his [or her] wrong and add to it one-fifth of it and give it to him whom he has wronged.”

In Exodus 22:2-4, the principle of restitution speaks only in terms of a male thief, but in Numbers 5:6 it is extended to females as well.

This broader application to both male and female applies to the law of jealousy as well in Numbers 5:11-31. The wording of the law itself shows that it is an example of case law, where it is not deemed necessary to give separate examples of adultery for men or women. Obviously, adultery is something that either may commit.

For this reason, I believe that if a woman believes (without proof) that her husband has committed adultery against her, she has the right to go to the priest (judge) and ask him to administer an oath of innocence from her husband. It would be unjust to deny her that right just because the case law only gives one side of the issue.

The same is true for the laws of divorce in Deuteronomy 24:1-5. Here again, the case law is stated in terms of a man finding his wife defiled. It gives him the right to divorce her. But does this not hold true of her rights as well? Such equal rights are hinted at in Mark 10:11, 12,

¹¹ And He said to them, “Whoever divorces [apoluo] his wife and marries another woman commits adultery against her, ¹² and if she herself divorces [apoloo-o] her husband and marries another man, she is committing adultery.”

There is no statement in the law permitting a woman to divorce her husband, but the underlying principle of equal justice demands equal rights.

For the sake of clarity, let it be understood that the law distinguishes between divorce (apostasion) and “putting away” (apoluo). The law states that if a man intends to put away his wife, he must first give her a bill of divorce. Obviously, these two things were supposed to go together but are actually two different things, even though many translators fail to understand this. This is clearly seen in Matthew 5:31, 32

³¹ It hath been said, Whosoever shall put away (apoluo) his wife, let him give her a writing of divorcement (apostasion). ³²But I say unto you, that whosoever shall put away (apoluo) his wife, saving for the cause of fornication, causeth her to commit adultery; and whosoever shall marry her that is divorced (apoluo, lit. "put away") committeth adultery.

The problem that Jesus was addressing was that some men were sending their wives out of the house without giving them proper divorce papers. This created an injustice, because these wives could not exercise their right of remarriage (Deuteronomy 24:2 KJV). Jesus was not condemning remarriage after a divorce, for He never contradicted the divine law. For a fuller study on divorce and remarriage, see my book, The Bible Says, Divorce and Remarriage is NOT Adultery.

Our present purpose is to show that under the right circumstances a woman may divorce her husband (Mark 10:12), even as a husband has the right to divorce his wife. There must be a lawful cause, of course, and not for frivolous reasons. Deuteronomy 24 does not include a list of valid reasons, nor does it attempt to reconcile domestic disputes. But in a case of divorce, we must acknowledge that a wife has the same rights as a husband.