Covenant and Constitution

We have seen that Israel became a covenant community through the Mosaic Covenant, that is, a nation bound by a covenant that obligated them to love one another. Since the Mosaic Covenant is an application of the Creation Mandate, this means Israel was called to be a covenant community as a model for all nations.

A covenant is a morally binding commitment between two or more parties to fulfill an obligation to achieve defined goals. It differs from a compact in that it involves God as the morally binding force, even when He is not a direct covenanting party. In other words, a covenant has divine sanction; a compact is entirely secular. How then can Israel be a model for “secular nations” today?

The most basic characteristic of a covenant community is that it is formed with the consent of the people. For it was with the consent of the Israelites that the Mosaic Covenant was first made and later ratified at Mount Sinai (Exodus 19:8; 24:3). And when the covenant was renewed at Shittim with the second generation, their consent was also involved (Deuteronomy 26:17).

It is significant that even God Himself did not obligate Israel to keep the Mosaic Covenant without their consent (cf. Elazar 1995a: 168-72). This implies that no human government can obligate its people to recognize its rule without their consent. This is the basic premise of what we now call “democracy.” This similarity between ancient Israel and a modern nation may surprise us. And this is not the only similarity.

The Mosaic Law is summed up in two commandments: love God and love one’s neighbor. But when the apostle Paul summed up the Mosaic Law to just one commandment, it is not “love God with all your heart,” but “love your neighbor as yourself” (Rom 13:8-10; Gal 5:13-14). This makes sense, as in Biblical thinking one cannot truly love God without loving one’s neighbor as well (1 John 4:20). Hence Paul could affirm that the Mosaic Law is fulfilled when there is love for one another.

Recall that Jesus also summed up the Mosaic Law to loving one’s neighbor as oneself, but rephrased it as the Golden Rule: “Do to others as you want others do to you” (Matthew 7:12). This rule, especially the negative version, “Do not do to others what you do not want others do to you,” is taught in virtually every religion (Neusner and Chilton 2008), and is acknowledged by even atheists (Epstein 2009). This is not surprising as “the work of the Law [is] written in their hearts” (Romans 2:14-16). Hence the Golden Rule has divine origin and sanction.

Therefore as far as God’s will for a covenant community (as a political entity) is concerned, upholding the Golden Rule fulfills the Mosaic Law. And since the Golden Rule is another way of saying, “Do justice and love mercy” (Micah 6:8), when a group of people have consented, however this may be accomplished, to obligate themselves to love one another by doing justice and loving mercy, a covenant community has been formed. Hence it is possible for even secular nations to become covenant communities. And since the Noahic Covenant requires all humanity to do justice and love mercy, it is necessary for all nations to become covenant communities.

What then should a nation look like when it becomes a covenant community?

Deuteronomy 16:18-18:22 is an elaboration and application of the Fifth Commandment—“Honor your father and your mother.” This section discusses the calling of the judges, the king, the priests and the prophets. In other words this commandment is about honoring not just the parents, but also the other authorities in a nation. Since the Mosaic Covenant bound individual Israelites and the nation as a whole, each of these authorities was subjected directly to the Ten Commandments (Figure 1).

This is the Biblical model for a nation. What is exceptionally significant is that even the king was subjected to the Mosaic Law (Deuteronomy 17:18-20). This was revelational in its time. For “this was in marked contrast to virtually all other Mediterranean, Middle Eastern, or African societies—which to the ancient Hebrews was the entire known world—in which kings were above the law or were the law; or even worse, were gods, as the Pharaohs considered themselves in Egypt” (Grossman 2007). By subjecting even the king to the Mosaic Law, God introduced into Israel what is now known as the “rule of law” in politics. The book of Deuteronomy was thus intended to serve as what we now call the “constitution” of the nation of Israel. A newly installed king was to make his own copy of this book, so that he would have read through it at least once.

This development is not surprising. For given fallen human nature, a government that is subject to a constitution and ruling accordingly is central to upholding the Golden Rule in a nation. Since the Golden Rule sums up the Mosaic Law, a secular nation can be considered a covenant community if the nation is bound by a constitution that adequately embodies the Golden Rule. And since the Mosaic Covenant is an application of the Creation Mandate, which is about building a civilization, we re-present the model in light of seven influential spheres of a modern civilization (Figure 2):

If even the king was not above the Mosaic Law, the judges must surely judge the people according to the Mosaic Law, and not the dictates or wishes of the king. In our modern context, the counterpart to the king in Israel is the executive branch of the government, and the counterpart to the judges is then the judicial branch. Since both the king and the judges submit independently to the Mosaic Law, the two branches are to be independent.

Is there then an Israelite counterpart to the legislative branch of the government? Strictly speaking, only the Ten Commandments and the elaborations of these commandments formed the constitution of Israel. The case laws of Israel then are the counterparts to the regular bills passed in the legislative branch of the government. And since even the case laws were given by God through Moses, they were also independent of the king and the judges. Hence with this clear separation of powers, all three independent branches of a democratic government today are reflected in the Mosaic Law.

This uncanny similarity is not coincidental. In an article published in a law journal, Jewish Biblical scholar Bernard Levinson (2006) argues that Deuteronomy is “the first constitution” in the world and thus contributes to “rethinking the origins of rule of law and separation of powers in light of Deuteronomy.” This is the abstract of the article:

This Article demonstrates the overlooked contribution of the ancient Near East to the development of constitutional law. The legal corpus of Deuteronomy provides a utopian model for the organization of the state, one that enshrines separation of powers and their systematic subordination to a public legal text—the “Torah”—that delineates their jurisdiction while also ensuring their autonomy. This legislation establishes an independent judiciary while bringing even the monarch under the full authority of the law. Deuteronomy’s implicit model for a political constitution is unprecedented in legal history. Two of its cornerstones are fundamental to the modern idea of constitutional government: (1) the clear division of political powers into separate spheres of authority; and (2) the subordination of each branch to the authority of the law. This legislation was so utopian in its own time that it seems never to have been implemented; instead, idealism rapidly yielded to political pragmatism. Nonetheless, Deuteronomy’s draft constitution provides an important corrective to standard accounts of constitutional legal history.

Levinson has overstated his case by claiming that the constitutional model in Deuteronomy “seems never to have been implemented.” If we take the Biblical record of the history of Israel seriously, the model did shape politics in ancient Israel to a recognizable extent (see for instance, Ahab’s recognition of the limits of his powers versus the view of his foreign wife in 1 Kings 21:1-10). Even if its impact on ancient Israel was limited, the same cannot be said of its influence on the modern world. For Levinson’s own article implies that the Mosaic Law undoubtedly played a crucial role in the development of modern constitutionalism.

And this has indeed been confirmed to be the case. Jewish political science professor Daniel Elazar (1995a, 1995b, 1997, 1998) has shown in a quartet of meticulously researched books that through Biblical influence, in tandem with the growth of Christianity, the covenant tradition in politics that originated in ancient Israel developed in premodern Europe and blossomed (most richly) during the Reformation. Even Thomas Hobbes, John Locke and Baruch Spinoza, considered fathers of modern political thought, inherited it but secularized the concept of covenant to compact. Out of this Biblical tradition, modern constitutionalism emerged in the British colonies that later became the United States of America, and spread throughout the world, even to places without a prior covenant tradition.

We noted earlier that when a group of people have consented, however this may be accomplished, to obligate themselves to uphold the Golden Rule, a covenant community has been formed. In the modern world this is usually accomplished through adopting a constitution that adequately embodies the Golden Rule. For by consenting to be bound by such a constitution, the people are consenting to obligate themselves to uphold the Golden Rule. However, when this happens in a place without a prior covenant tradition, it may have only the form but not the substance of a covenant community. It may thus lack the culture needed to uphold the constitution by interpreting and implementing it in the spirit of the Golden Rule. In such a case the work of nation-building includes developing such a culture.

Turning now to the parents, they obviously represent, then and now, the sphere of the family. In the ancient world, the economy was home-based and education was basically the responsibility of the parents. Hence the parents also represent the sphere of education as well as that of economy and business. And in ancient Israel the practice of the arts was centered in the Tabernacle or the Temple. Hence the priests not only represent the sphere of religion but also that of the arts and entertainment. As for the prophets, who played the role of holding even the king accountable to the Mosaic Law, they represent the sphere of the media, which plays the role of holding the government accountable to the constitution.

We can now present the Biblical model for a nation in terms of the seven influential spheres of a modern civilization (Figure 3):

Inasmuch as the parents, priests and the prophets were subject directly to the Mosaic Law, each of the seven spheres is subject directly to the constitution. If the constitution embodies adequately the Golden Rule and is correctly interpreted and implemented by the government, justice is ensured for every sphere of the nation. This model shows that in a covenant community, justice—the good that human beings made in the image of God deserve—must be built into the political structure of the nation. For without justice at the structural level, justice at the personal level is only a far-fetched dream. We will have a better understanding of how it works when we consider God’s will for each of the spheres.

For now, to clarify what this model means, we need to spell out what it does not mean. Most importantly, the government holds the nation accountable to the constitution, not to itself. In other words the Biblical model is not like this (Figure 4):

This is the model of a totalitarian state like that of the communists. Many nations today adopt, at least in name, the constitutional model in Figure 3. But due to fallen human nature, none practices it perfectly. In practice, they are somewhere between the constitutional model and the totalitarian model in Figure 4. The reason may be that the government misinterprets, or even violates, the constitution. It may be that the constitution itself is defective.

And the Biblical model is certainly not like this (Figure 5):

This is the model of a religious state like that of the Taliban. Even in ancient Israel, the priests were independent of the king, answerable only to the Mosaic Law. This means God’s will is that the practice of religion is to be independent of the government. Hence freedom of religion is considered a basic human right. Religion answers only to a constitution that embodies the Golden Rule. In fact in essence, religion is to fear God and keep His commandments, which are summed up by the Golden Rule.

It is easy to miss this teaching because there seems to be no freedom of religion in ancient Israel. We have already explained in our exposition on Israelite Religion that this is not the case. In any case, the apparent lack of religious freedom is due to the Mosaic Law itself and not a religious decree of the king. In fact "the relation between the Hebrew monarch and his people was as nearly secular as is possible in a society wherein religion is a living force" (Frankfort 1978: 341). And the Mosaic Law as it stands was applicable only to ancient Israel as a holy nation occupying the Holy Land.

The constitutional model has far-reaching implications. Some implications are more obvious than others. To illustrate, we consider its (less obvious) implication for the criminal justice system of a nation. Currently the dominant criminal justice system, even in nations with a constitutional government, is that a crime is primarily an offense against the state, and not the victim. As such the usual penalty for a crime is a fine or imprisonment or both; the material loss of the victim is generally not taken care of. For even the fine imposed on the offender goes entirely to the state. Where then is justice for the victim?

This system is more in line with the totalitarian model than with the constitutional model. For under this system, which is a legacy of premodern Europe,

the king became the paramount crime victim, sustaining legally acknowledged (although symbolic) injuries. The actual victim was ousted from any meaningful place in the justice process, illustrated by the redirection of reparation from the victim in the form of restitution to the king in the form of fines. With the new political structure, a new model of crime emerged, one in which the government and the offender were the sole parties. This model brought with it a new purpose as well: rather than making the victim whole, the system focused on upholding the authority of the state. (Van Ness and Strong 2010: 9-10)

In our exposition of the Ten Commandments we mentioned that under the Mosaic Law the usual penalty for a crime was restitution (to the victim). We also noted that this practice is in line with the alternative criminal justice system known as Restorative Justice, which is gaining popularity worldwide. This system treats a crime primarily as an offence against the victim and prioritises reconciliation between victim and offender, which brings emotional healing to both parties. It “aims to restore the well-being of victims, offenders and communities damaged by crime, and to prevent further offending” (Liebmann 2007: 25).

Under this system, the preference of restitution over imprisonment allows the victim to be compensated for his material loss. In most cases there is actually no need for an offender to be imprisoned, which is usually cruel, inhuman and degrading (cf. United Nations 2007). Hence this system embodies love and upholds justice, for the victim as well as the offender. It is thus more in line with the idea of a covenant community. And since it treats a crime primarily as an offence against the victim and not the state, it is also more in line with the idea of a constitutional government.