Biblical Commentary on the Old Testament, by Carl Friedrich Keil and Franz Delitzsh, [1857-78], at sacred-texts.com
Deuteronomy Chapter 17
Not only did the inclination to nature-worship, such as the setting up of the idols of Ashera and Baal, belong to the crimes which merited punishment, but also a manifest transgression of the laws concerning the worship of Jehovah, such as the offering of an ox or sheep that had some fault, which was an abomination in the sight of Jehovah (see at Lev 22:20.). "Any evil thing," i.e., any of the faults enumerated in Lev 22:22-24.
If such a case should occur, as that a man or woman transgressed the covenant of the Lord and went after other gods and worshipped them; when it was made known, the facts were to be carefully inquired into; and if the charge were substantiated, the criminal was to be led out to the gate and stoned. On the testimony of two or three witnesses, not of one only, he was to be put to death (see at Num 35:30); and the hand of the witnesses was to be against him first to put him to death, i.e., to throw the first stones at him, and all the people were to follow. With regard to the different kinds of idolatry in Deu 17:3, see Deu 4:19. (On Deu 17:4, see Deu 13:15.) "Bring him out to thy gates," i.e., to one of the gates of the town in which the crime was committed. By the gates we are to understand the open space near the gates, where the judicial proceedings took place (cf. Neh 8:1, Neh 8:3; Job. Deu 29:7), the sentence itself being executed outside the town (cf. Deu 22:24; Act 7:58; Heb 13:12), just as it had been outside the camp during the journey through the wilderness (Lev 24:14; Num 15:36), to indicate the exclusion of the criminal from the congregation, and from fellowship with God. The infliction of punishment in Deu 17:5. is like that prescribed in Deu 13:10-11, for those who tempted others to idolatry; with this exception, that the testimony of more than one witness was required before the sentence could be executed, and the witnesses were to be the first to lift up their hands against the criminal to stone him, that they might thereby give a practical proof of the truth of their statement, and their own firm conviction that the condemned was deserving of death, - "a rule which would naturally lead to the supposition that no man would come forward as a witness without the fullest certainty or the greatest depravity" (Schnell, das isr. Recht).
(Note: "He assigned this part to the witnesses, chiefly because there are so many whose tongue is so slippery, not to say good for nothing, that they would boldly strangle a man with their words, when they would not dare to touch him with one of their fingers. It was the best remedy, therefore, that could be tried for restraining such levity, to refuse to admit the testimony of any man who was not ready to execute judgment with his own hand" (Calvin).)
המּת (Deu 17:6), the man exposed to death, who was therefore really ipso facto already dead. "So shalt thou put the evil away," etc.: cf. Deu 13:6.
The Higher Judicial Court at the Place of the Sanctuary. - Just as the judges appointed at Sinai were to bring to Moses whatever cases were too difficult for them to decide, that he might judge them according to the decision of God (Exo 18:26 and Exo 18:19); so in the future the judges of the different towns were to bring all difficult cases, which they were unable to decide, before the Levitical priests and judges at the place of the sanctuary, that a final decision might be given there.
"If there is to thee a matter too marvellous for judgment (נפלא with מן, too wonderful, incomprehensible, or beyond carrying out, Gen 18:14, i.e., too difficult to give a judicial decision upon), between blood and blood, plea and plea, stroke and stroke (i.e., too hard for you to decide according to what legal provisions a fatal blow, or dispute on some civil matter, or a bodily injury, is to be settled), disputes in thy gates (a loosely arranged apposition in this sense, dispute of different kinds, such as shall arise in thy towns); arise, and get thee to the place which Jehovah thy God shall choose; and go to the Levitical priest and the judge that shall be in those days, and inquire." Israel is addressed here as a nation, but the words are not to be supposed to be directed "first of all to the local courts (Deu 16:18), and lastly to the contending parties" (Knobel), nor "directly to the parties to the suit" (Schultz), but simply to the persons whose duty it was to administer justice in the nation, i.e., to the regular judges in the different towns and districts of the land. This is evident from the general fact, that the Mosaic law never recognises any appeal to higher courts by the different parties to a lawsuit, and that in this case also it is not assumed, since all that is enjoined is, that if the matter should be too difficult for the local judges to decide, they themselves were to carry it to the superior court. As Oehler has quite correctly observed in Herzog's Cyclopaedia, "this superior court was not a court of appeal; for it did not adjudicate after the local court had already given a verdict, but in cases in which the latter would not trust itself to give a verdict at all." And this is more especially evident from what is stated in Deu 17:10, with regard to the decisions of the superior court, namely, that they were to do whatever the superior judges taught, without deviating to the right hand or to the left. This is unquestionably far more applicable to the judges of the different towns, who were to carry out exactly the sentence of the higher tribunal, than to the parties to the suit, inasmuch as the latter, at all events those who were condemned for blood (i.e., for murder), could not possibly be in a position to alter the decision of the court at pleasure, since it did not rest with them, but with the authorities of their town, to carry out the sentence.
Moses did not directly institute a superior tribunal at the place of the sanctuary on this occasion, but rather assumed its existence; not however its existence at that time (as Riehm and other modern critics suppose), but its establishment and existence in the future. Just as he gives no minute directions concerning the organization of the different local courts, but leaves this to the natural development of the judicial institutions already in existence, so he also restricts himself, so far as the higher court is concerned, to general allusions, which might serve as a guide to the national rulers of a future day, to organize it according to the existing models. He had no disorganized mob before him, but a well-ordered nation, already in possession of civil institutions, with fruitful germs for further expansion and organization. In addition to its civil classification into tribes, families, fathers' houses, and family groups, which possessed at once their rulers in their own heads, the nation had received in the priesthood, with the high priest at the head, and the Levites as their assistants, a spiritual class, which mediated between the congregation and the Lord, and not only kept up the knowledge of right in the people as the guardian of the law, but by virtue of the high priest's office was able to lay the rights of the people before God, and in difficult cases could ask for His decision. Moreover, a leader had already been appointed for the nation, for the time immediately succeeding Moses' death; and in this nomination of Joshua, a pledge had been given that the Lord would never leave it without a supreme ruler of its civil affairs, but, along with the high priest, would also appoint a judge at the place of the central sanctuary, who would administer justice in the highest court in association with the priests. On the ground of these facts, sit was enough for the future to mention the Levitical priests and the judge who would be at the place of the sanctuary, as constituting the court by which the difficult questions were to be decided.
(Note: The simple fact, that the judicial court at the place of the national sanctuary is described in such general terms, furnishes a convincing proof that we have here the words of Moses, and not those of some later prophetic writer who had copied the superior court at Jerusalem of the times of the kings, as Riehm and the critics assume.)
For instance, the words themselves show distinctly enough, that by "the judge" we are not to understand the high priest, but the temporal judge or president of the superior court; and it is evident from the singular, "the priest that standeth to minister there before the Lord" (Deu 17:12), that the high priest is included among the priests. The expression "the priests the Levites" (Levitical priests), which also occurs in Deu 17:18; Deu 18:1; Deu 21:5; Deu 24:8; Deu 27:9; Deu 31:9, instead of "sons of Aaron," which we find in the middle books, is quite in harmony with the time and character of the book before us. As long as Aaron was living with his sons, the priesthood consisted only of himself and his sons, that is to say, of one family. Hence all the instructions in the middle books are addressed to them, and for the most part to Aaron personally (vid., Ex 28 and 29; Lev 8-10; Num 18:1, etc.). This as all changed when Aaron died; henceforth the priesthood consisted simply of the descendants of Aaron and his sons, who were no longer one family, but formed a distinct class in the nation, the legitimacy of which arose from its connection with the tribe of Levi, to which Aaron himself had belonged. It was evidently more appropriate, therefore, to describe them as sons of Levi than as sons of Aaron, which had been the title formerly given to the priests, with the exception of the high priest, viz., Aaron himself. - In connection with the superior court, however, the priests are introduced rather as knowing and teaching the law (Lev 10:11), than as actual judges. For this reason appeal was to be made not only to them, but also to the judge, whose duty it was in any case to make the judicial inquiry and pronounce the sentence. - The object of the verb "inquire" (Deu 17:9) follows after "they shall show thee," viz., "the word of right," the judicial sentence which is sought (Ch2 19:6).
They shall do "according to the sound of the word which they utter" (follow their decision exactly), and that "according to the sound of the law which they teach," and "according to the right which they shall speak." The sentence was to be founded upon the Thorah, upon the law which the priests had to teach.
No one was to resist in pride, to refuse to listen to the priest or to the judge. Resistance to the priest took place when any one was dissatisfied with his interpretation of the law; to the judge, when any one was discontented with the sentence that was passed on the basis of the law. Such refractory conduct was to be punished with death, as rebellion against God, in whose name the right had been spoken (Deu 1:17). (On Deu 17:13, see Deu 13:12.)
Choice and Right of the King. - Deu 17:14, Deu 17:15. If Israel, when dwelling in the land which was given it by the Lord for a possession, should wish to appoint a king, like all the nations round about, it was to appoint the man whom Jehovah its God should choose, and that from among its brethren, i.e., from its own people, not a foreigner or non-Israelite. The earthly kingdom in Israel was not opposed to the theocracy, i.e., to the rule of Jehovah as king over the people of His possession, provided no one was made king but the person whom Jehovah should choose. The appointment of a king is not commanded, like the institution of judges (Deu 16:18), because Israel could exist under the government of Jehovah, even without an earthly king; it is simply permitted, in case the need should arise for a regal government. There was no necessity to describe more minutely the course to be adopted, as the people possessed the natural provision for the administration of their national affairs in their well-organized tribes, by whom this point could be decided. Moses also omits to state more particularly in what way Jehovah would make known the choice of the king to be appointed. The congregation, no doubt, possessed one means of asking the will of the Lord in the Urim and Thummim of the high priest, provided the Lord did not reveal His will in a different manner, namely through a prophet, as He did in the election of Saul and David (1 Sam 8-9, and 16). The commandment not to choose a foreigner, acknowledged the right of the nation to choose. Consequently the choice on the part of the Lord may have consisted simply in His pointing out to the people, in a very evident manner, the person they were to elect, or in His confirming the choice by word and act, as in accordance with His will.
Three rules are laid down for the king himself in Deu 17:16-20. In the first place, he was not to keep many horses, or lead back the people to Egypt, to multiply horses, because Jehovah had forbidden the people to return thither by that way. The notion of modern critics, that there is an allusion in this prohibition to the constitution of the kingdom under Solomon, is so far from having any foundation, that the reason assigned - namely, the fear lest the king should lead back the people to Egypt from his love of horses, "to the end that he should multiply horses" - really precludes the time of Solomon, inasmuch as the time had then long gone by when any thought could have been entertained of leading back the people to Egypt. But such a reason would be quite in its place in Moses' time, and only then, "when it would not seem impossible to reunite the broken band, and when the people were ready to express their longing, and even their intention, to return to Egypt on the very slightest occasion; whereas the reason assigned for the prohibition might have furnished Solomon with an excuse for regarding the prohibition itself as merely a temporary one, which was no longer binding" (Oehler in Herzog's Cyclopaedia: vid., Hengstenberg's Dissertations).
(Note: When Riehm objects to this, that if such a prohibition had been unnecessary in a future age, in which the people had reached the full consciousness of its national independence, and every thought of the possibility of a reunion with the Egyptians had disappeared, Moses would never have issued it, since he must have foreseen the national independence of the people; the force of this objection rests simply upon his confounding foreseeing with assuming, and upon a thoroughly mistaken view of the prophet's vision of the future. Even if Moses, as "a great prophet," did foresee the future national independence of Israel, he had also had such experience of the fickle character of the people, that he could not regard the thought of returning to Egypt as absolutely an impossible one, even after the conquest of Canaan, or reject it as inconceivable. Moreover, the prophetic foresight of Moses was not, as Riehm imagines it, a foreknowledge of all the separate points in the historical development of the nation, much less a foreknowledge of the thoughts and desires of the heart, which might arise in the course of time amidst the changes that would take place in the nation. A foresight of the development of Israel into national independence, so far as we may attribute it to Moses as a prophet, was founded not upon the character of the people, but upon the divine choice and destination of Israel, which by no means precluded the possibility of their desiring to return to Egypt, even at some future time, since God Himself had threatened the people with dispersion among the heathen as the punishment for continued transgression of His covenant, and yet, notwithstanding this dispersion, had predicted the ultimate realization of His covenant of grace. And when Riehm still further observes, that the taste for horses, which lay at the foundation of this fear, evidently points to a later time, when the old repugnance to cavalry which existed in the nation in the days of the judges, and even under David, had disappeared; this supposed repugnance to cavalry is a fiction of the critic himself, without any historical foundation. For nothing more is related in the history, than that before the time of Solomon the Israelites had not cultivated the rearing of horses, and that David only kept 100 of the war-horses taken from the Syrians for himself, and had the others put to death (Sa2 8:4). And so long as horses were neither reared nor possessed by the Israelites, there can be no ground for speaking of the old repugnance to cavalry. On the other hand, the impossibility of tracing this prohibition to the historical circumstances of the time of Solomon, or even a later age, is manifest in the desperate subterfuge to which Riehm has recourse, when he connects this passage with the threat in Deu 28:68, that if all the punishments suspended over them should be ineffectual, God would carry them back in ships to Egypt, and that they should there be sold to their enemies as men-servants and maid-servants, and then discovers a proof in this, that the Egyptian king Psammetichus, who sought out foreign soldiers and employed them, had left king Manasseh some horses, solely on the condition that he sent him some Israelitish infantry, and placed them at his disposal. But this is not expounding Scripture; it is putting hypotheses into it. As Oehler has already observed, this hypothesis has no foundation whatever in the Old Testament, nor (we may add) in the accounts of Herodotus and Diodorus Siculus concerning Psammetichus. According to Diod. (i. 66), Psammetichus hired soldiers from Arabia, Caria, and Ionia; and according to Herodotus (i. 152), he hired Ionians and Carians armed with brass, that he might conquer his rival kings with their assistance. But neither of these historians says anything at all about Israelitish infantry. And even if it were conceivable that any king of Israel or Judah could carry on such traffic in men, as to sell his own subjects to the Egyptians for horses, it is very certain that the prophets, who condemned every alliance with foreign kings, and were not silent with regard to Manasseh's idolatry, would not have passed over such an abomination as this without remark or without reproof.)
The second admonition also, that the king was not to take to himself many wives, and turn away his heart (sc., from the Lord), nor greatly multiply to himself silver and gold, can be explained without the hypothesis that there is an allusion to Solomon's reign, although this king did transgress both commands (Kg1 10:14. Deu 11:1.). A richly furnished harem, and the accumulation of silver and gold, were inseparably connected with the luxury of Oriental monarchs generally; so that the fear was a very natural one, that the future king of Israel might follow the general customs of the heathen in these respects.
And thirdly, instead of hanging his heart upon these earthly things, when he at upon his royal throne he was to have a copy of the law written out by the Levitical priests, that he might keep the law by him, and read therein all the days of his life. כּתב does not involve writing with his own hand (Philo), but simply having it written. הזּאת התּורה משׁנה does not mean τὸ δευτερονόμιον τοῦτο (lxx), "this repetition of the law," as הזּאת cannot stand for הזּה; but a copy of this law, as most of the Rabbins correctly explain it in accordance with the Chaldee version, though they make mishneh to signify duplum, two copies (see Hvernick, Introduction). - Every copy of a book is really a repetition of it. "From before the priests," i.e., of the law which lies before the priests or is kept by them. The object of the daily reading in the law (Deu 17:19 and Deu 17:20) was "to learn the fear of the Lord, and to keep His commandments" (cf. Deu 5:25; Deu 6:2; Deu 14:23), that his heart might not be lifted up above his brethren, that he might not become proud (Deu 8:14), and might not turn aside from the commandments to the right hand or to the left, that he and his descendants might live long upon the throne.