Imperfect Justice
Moreover thou shalt provide out of all the people able men, such as fear God, men of truth, hating covetousness; and place such over them, to be rulers of thousands, and rulers of hundreds, rulers of fifties, and rulers of tens: And let them judge the people at all seasons: and it shall be, that every great matter they shall bring unto thee, but every small matter they shall judge: so shall it be easier for thyself, and they shall bear the burden with thee (Ex. 18:21-22).
The Bible is not a perfectionist document. While it lays down a standard of perfection -- a standard met only by Jesus Christ -- it nonetheless acknowledges in its very law code that men's institutions and laws must be understood as fallible, limited, and tainted with sin. As this passage amply demonstrates, the Bible is hostile to the humanist's quest for perfect justice on earth.
Under Moses' direct rule, God's revelation was instantly available in any given case. Yet there was insufficient time for Moses to hear every case of legal dispute in the land. Perfect justice was limited by time and space; men had to come to Moses' tent and stand in (presumably) long lines. The quest for perfect justice was eating up countless man-hours of potential human labor.
Jethro warned Moses that the people, as well as Moses himself, were wearing away (vs. 18). He recommended the establishment of a legal hierarchy, thereby taking advantage of the principle of the division of labor. He could reserve time to hear the cases that were too difficult for his subordinates -- "every great matter" (22) - and in doing so would redeem his allotted time more wisely by exercising leadership in other areas of Hebrew life besides the courtroom. Furthermore, this system would permit more rapid resolutions of disputes.
There was no express revelation from God to Moses concerning the establishment of such a legal bureaucracy. It was an ad hoc decision based on informed common sense. Acknowledging the principle of scarcity in the realm of time, Jethro came to an obvious conclusion. Yet this conclusion involved the acceptance of a fundamental principle: even in the historically unique circumstance of men's access to perfect justice, it is preferable in the vast majority of cases to obtain speedy justice rather than perfect justice.
The criteria for admission into this legal hierarchy were moral rather than technical. Uncovetous men (bribe-resistant), fearful of God, with reputations for truthfulness, were the preferred judges. Ability was also important, but moral qualities were emphasized (21). These men had been slaves; the whole generation, except Joshua and Caleb, possessed the slave's mentality, yet their rule in most cases was preferable to a system of perfect justice. Conclusion: regular and predictable justice provided by responsible amateurs is better than perfect justice provided on a sporadic or "first in line" basis. The burden of dispensing justice must be shared (22). This was required to permit the people to endure, going their way in peace (23).
The right of appeal was limited to great matters. Issues involving fundamental principle, and those that would be likely to have important repercussions throughout the society, were the ones which were to be sent up the bureaucratic chain of command. At every level, it was the right of the appeal court to refuse to consider a case; it was mandatory that these courts limit the number of cases going upward. Access to the supreme court was to be restricted to great cases, and this required screening by the lower courts. Endless litigation would paralyze the justice system. (Such litigation was understood as an indication of moral paralysis by St. Paul [I. Cor. 6:1-8] and extremely dangerous; New England Puritans unsuccessfully tried to reduce litigation by making it illegal to practice courtroom law for a fee.)
Substantive issues were to determine appeals, not issues of formal (technical) law. The supreme court would decide in terms of permanent standards of justice as applied to each individual case. Technicalities were not the primary consideration in the verdict, except insofar as formal procedures were involved that were a part of the revealed legal code. Formal law was primarily a means of restricting the state and church from making arbitrary decisions, and as such, procedural matters were important, but the content of the law was far more important. An excessive concern for technical law over substantive law is characteristic of modern jurisprudence, and decisions in terms of technicalities have proliferated to such an extent that legal predictability and the restraint on arbitrary judicial acts have been swamped in a morass of conflicting precedents--precisely the condition that the modern theory of legal formalism was developed to prohibit! Modernism's emphasis on method over meaning in a supposedly relativistic world (except for method, of course) has led to the breakdown of law.
The legal hierarchy of the Bible assumed perfect standards, but it compelled men's acceptance of their own limitations. Applications would be perfect only in a few selected cases during a brief historical period. Nevertheless, men could be confident that in His sovereignty, God provides an ultimately gapless law of perfect retribution for every specific case. The concept of a final judgment relieved men of the psychological burden of the quest for perfect earthly justice.
The idea that a hundred guilty men should go free rather than to punish one innocent man is strictly pagan in origin and application. It would turn loose criminals to plunder a thousand innocents. The quest for perfect justice leads inevitably to massive lawlessness. Joseph in Pharaoh's jail, Daniel in the lions' den, and Jesus on the cross are examples of imperfect justice, yet godly men can live with imperfect justice because they know that perfect justice does exist and will be made manifest on the final day. Life is too short to expect perfect earthly justice, even if it were still available. Better to have speedy justice by godly amateurs than the clogged courts of messianic humanism. And if church courts are as clogged as Satan's, where will godly men seek justice!
Biblical Economics Today Vol. 2, No. 5 (October/November 1979)
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