Biblical Foundations of Law Series 2: Torts

The Biblical Foundations of Law studies are intended to provide you with accessible Bible studies on topics of interest to law students and professionals who are seeking to understand the law from a biblical perspective.

After reading the brief scriptural passage (perhaps with a couple of different translations available in the group to add nuances of meaning), use the questions as prods for discussion. Please add your own questions, because the concerns and interests of each study group are different. In some cases, leader's notes are provided to help guide the conversation.

Some discussion "Do's":

1. Do resist the temptation to make Bible study a mere intellectual inquiry or to parade your finely tuned analytical skills.
2. Do provoke each other into finding concrete ways to apply and incorporate scriptural insights into your lives.
3. Do commit yourselves to encouraging each other to stick to these commitments through friendship and prayer.

We're grateful to the Christian Legal Society for sharing these studies with us.

Introduction

The purpose of this study is to examine the tort law that God gave to Moses for the Israelite society. We will use the case laws in Exodus to examine our own thinking about the goals of our system of tort law. I recommend spending two weeks on this study if the group finds it interesting.

Even if we conclude that these laws in their particulars should not apply today, we can certainly learn from examining principles and goals in the laws God set out for his people at that time and in that culture. This is also good practice as we attempt to get into the habit of evaluating the substance of the law by biblical principles.

Recall from your Torts class the traditional justifications for having a system of tort law in the first place:

• Corrective Justice and Desert: Is this particular plaintiff entitled to receive compensation from this particular defendant, as a matter of fairness and just desert?
• Victim Compensation: Compensation of injured parties is the purpose of the system; other considerations are secondary or tertiary.
• Economic Theory (including pure Deterrence theories): The Tort law is a system of social control, and the goal of the tort law is to set out incentives and disincentives to minimize the cost (to society) of accidents and prevention.
• Power Politics (Critical Race/Feminist Theory, for example): Tort law is a tool to correct an imbalance of power in society. It is a tool of social control, not to provide overall efficiency and safety, but to restore or remove power from particular groups or interests.

Questions

Read Exodus 21:18-22:6, the clearest set of revealed tort law "cases: in scripture. (Notice that these passages are communicated directly from God to Moses to "set before" the Israelites (21:1)). Don't get bogged down in discussing whether these particular rules would or should apply today.

Consider the cases in light of the traditional justifications for tort law:

1. Men Quarrelling (21:18)
2. The Goring Ox Scenarios (21:28-32)
3. The Uncovered Pit (21:33-34)
4. The Grazing Cattle (22:5)
5. The Spreading Fire (22:6)

With which traditional justification(s) are these cases most consistent? Why would God give such laws to his people? Were there specific problems that these addressed? How do you suppose these laws would be enforced?

Can we draw any broad conclusions about the end or means of tort law from the passages we’ve looked at today?

Leader’s Notes

The idea here is to consider the law of torts from a biblical perspective. We can do that by spending some time thinking and talking about the law that God gave the children of Israel. This law was given directly by God to Moses and is included in the Scriptures. Therefore, we know that it is useful to instruct us.

Don't spend time talking about the continuing applicability of the Old Testament moral, ceremonial, or civil laws (that is worth thinking about, but for another study). The point is to draw general principles. Why does God give this kind of law? What is he trying to accomplish?

I have started with traditional justifications for tort law, because that is the framework by which most law students have learned to examine torts. If it causes your discussion to bog down, just move on to the particular passages.

Remember that there is a context for these laws, too. This was a nomadic agricultural society at the time. But it is never fair to say "Oh, that was just a different culture," without justifying why that might require a departure from a particular approach.

Some things worth noting in the passages if your group doesn’t raise them:

• Men Quarrelling (21:18): He is not "responsible" (for his death? To care for his family?), but he must pay restorative damages. Would this include pain and suffering? ("Loss of time" and...).
• The Goring Ox Scenarios (21:28-32; 35-36): Notice the strict liability versus negligence issues here. There are varying levels of moral culpability with varying degrees of punishment. Also raised is the issue of "damages" for a human life. It appears that there is no payment sufficient for real "damages," yet one can be "redeemed." And the property damage case is treated differently, with damage splitting or damages, depending on level of moral culpability (or that's one possibility).
• The Uncovered Pit (21:33-34): It does not appear to matter whether this is negligent conduct. Or is it always negligent to fail to cover a pit in an agrarian society (with no electricity)? Or is it not about negligence—perhaps this is an example of a different overriding principle: if one causes harm, he pays. This should be a question that you ask throughout the study.
• The Grazing Cattle (22:5): Same issue as the uncovered pit, except the language might allow for a different result in the analysis.
• The Spreading Fire (22:6): Is this activity something that demands a different standard? Or is it the same standard as the other cases? 

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