Sermon on the Mount, part 3

Jesus mocks the civil litigation system

Jesus now turns to his real target: the Jewish legal system as the representation of the principle and the practice of using the force of law to ‘right’ wrongs and enforce debts. He does this by comparing and contrasting two different cases:  a capital cases and a case for money damages.

 ‘You have heard that it was said to the people long ago, “You shall not murder, and anyone who murders will be subject to judgment.” But I tell you that anyone who is angry with a brother or sister will be subject to judgment. Again, anyone who says to a brother or sister, “Raca,” is answerable to the court. And anyone who says, “You fool!” will be in danger of the fire of hell.

‘Therefore, if you are offering your gift at the altar and there remember that your brother or sister has something against you, leave your gift there in front of the altar. First go and be reconciled to them; then come and offer your gift.‘Settle matters quickly with your adversary who is taking you to court. Do it while you are still together on the way, or your adversary may hand you over to the judge, and the judge may hand you over to the officer, and you may be thrown into prison. Truly I tell you, you will not get out until you have paid the last penny. (Mat 5:21-26)

Before examining the text in detail, we shall introduce a parallel text from Luke’s gospel to indicate the purpose of including the details about the civil litigation and civil debt enforcement procedures:

 He said to the crowd: ‘When you see a cloud rising in the west, immediately you say, “It’s going to rain,” and it does.  And when the south wind blows, you say, “It’s going to be hot,” and it is. Hypocrites! You know how to interpret the appearance of the earth and the sky. How is it that you don’t know how to interpret this present time?
‘Why don’t you judge for yourselves what is right? As you are going with your adversary to the magistrate, try hard to be reconciled on the way, or your adversary may drag you off to the judge, and the judge turn you over to the officer, and the officer throw you into prison. I tell you, you will not get out until you have paid the last penny.’ (Luke 12:54-59)

So the intention of Jesus in including these civil litigation and debt enforcement procedures is to tell them what is wrong with the society in which they live – by simply recounting these procedures he intends to prick the consciences of compassionate souls.

Jesus also includes such details elsewhere, for the same reason:

Therefore, the kingdom of heaven is like a king who wanted to settle accounts with his servants. As he began the settlement, a man who owed him ten thousand bags of gold was brought to him. Since he was not able to pay, the master ordered that he and his wife and his children and all that he had be sold to repay the debt. …
He grabbed him and began to choke him. “Pay back what you owe me!” he demanded.
‘His fellow servant fell to his knees and begged him, “Be patient with me, and I will pay it back.”‘But he refused. Instead, he went off and had the man thrown into prison until he could pay the debt. (Mat 18:24-25,28-30)

We now proceed to analyse the text itself in detail: what is Jesus’s problem with civil litigation and debt enforcement? How does he make his point?

The first case Jesus uses in his message is the capital case of murder. The law of Moses prohibits murder, and Jesus is not abolishing that prohibition. Although the “You shall not murder” is a direct quote from the law of Moses, the “anyone who murders will be subject to judgement” is not. The liability to judgement for murder being referred to by Jesus is the human legal judgement and sentence under the system of judges established by Moses on the advice of Jethro (Ex 18). The procedures for avenging the life of the person murdered are detailed in Numbers 35:16-34. The procedure is to take the life of the murderer, with substantial procedural protections afforded the accused.

In Jewish legal thought and practice things were not as simple as it would appear from Numbers 35:16-34. Although they could not deny the legal principle of ‘a life for a life,’ – the principle is expressly stated in the law of Moses – actually taking the life of the one accused of murder (or any other capital offense) was opposed in practice. By imposing impossible burdens of evidence they de facto abolished the death penalty around the same time Jesus taught. Rather than have the law approve the killing of a man, they would exclude it on evidential grounds. They then described the law as merciful in respect of it sparing the lives of murderers.

Did Jesus call them back to the law of Moses on this practice? Did he disapprove of them adding traditions of men to make the law of Moses of no effect in this regard? Did he introduce arguments about the effectiveness of capital punishment in deterring murders?

The second case Jesus uses in his message is the civil case of insult. Note the progression from ‘subject to judgement’ referring to the local court of general jurisdiction, then to ‘answerable to the court’ referring specifically to the Sanhedrin, finally to ‘in danger of the fire of hell’ which is referring to execution by the Romans, who held the sole power of the death penalty and could, after crucifixion, dispose on one’s body without burial dishonourably in Gehenna, the burning rubbish dump outside Jerusalem. The rhetorical point of the final level is show that the Romans would indeed impose capital punishment on those who, like Jesus, caused political trouble even though only by their words and not by murder. Throughout the gospels, the teachers of the law are shown to be in favour of killing to protect their economic privileges and political power from Jesus’s teaching, while pleading for the life of a murderer:

You handed him over to be killed, and you disowned him before Pilate, though he had decided to let him go. You disowned the Holy and Righteous One and asked that a murderer be released to you. (Acts 3:13-14)

The law of Moses provides no express entitlement to money damages or any other legal remedy for insult. However, by the time Jesus taught, the teachers of the law discussed the following heads of liability for injuries: damage, pain, healing, loss of time from work, and insult. Although the law of Moses expressly provides for bodily damage (Ex 21:23-27), healing and loss of time from work (Ex 21:18-19), and implicitly for pain (Ex 21:22), the recoverability of insult was at least questionable and debatable at the time Jesus taught, although at a later time it was confirmed and upheld. The Sermon on the Mount contains three references to insult: 5:11, here and in verse 39. Yet Jesus presents such a case as being litigated all the way to the supreme court (Sanhedrin), and resulting in a judgement liability so great as to financially ruin the judgement debtor and subject him to debtors’ prison till he paid the last penny of the judgement debt.

The case of a civil suit solely for insult is therefore a parody of the law of civil claims: here is a man whose only injury is to his honour, and yet here he is, threatening suit, filing suit, proving his case (on the lower civil standard of proof), obtaining his judgement, and enforcing it against the judgement debtor by putting him in debtors’ prison until he had paid the last penny. Is this the course of a man of honour?

Although addressed as prudent advice to the man seeking to avoid being dragged to court, underneath it is a barb against the teachers of the law and the judges who are merciful to murderers while justifying and measuring out money judgments against men in civil litigation. If they can see and effectively avoid the sin of killing murderers to ‘right’ their wrongs why not the sin of oppressing civil defendants to ‘right’ their (lesser) wrongs?