278. Judicial Precepts and the Order of Society

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Lecture Notes

Main Topics #

• Witness Testimony and Probable Certainty: The requirement of two or three witnesses does not demand infallible proof (probatio demonstrativa), but rather probable conjecture (conjectura) sufficient for human judgment. Though it is possible for multiple witnesses to lie together, it is not probable or easy.
• Proportionality of Punishment: Punishment is not determined solely by the gravity of guilt, but by multiple factors including the customary nature of sin, the degree of concupiscence involved, and the ease with which the sin can be committed and hidden.
• Grades of Culpability: Four grades of sinfulness are distinguished: (1) wholly involuntary acts (excusing from punishment); (2) sins from weakness or passion (diminishing punishment); (3) sins from ignorance (requiring expiation through sacrifice, not judicial punishment); (4) sins from pride and choice (punished according to crime); (5) sins from stubbornness and pertinacity (deserving death).
• Punishment of Animals: Brute animals commanded to be killed are not punished for guilt (which they cannot have), but rather as punishment of their negligent owners and as a form of detesting certain sins.
• Restitution in Theft: Different punishments are inflicted for theft of different animals based on the difficulty of guarding them and their multiple uses. Sheep require fourfold restitution; cattle require fivefold restitution.
• The Heifer Ceremony: The ritual killing of a heifer in an uncultivated place (Deuteronomy 21) serves multiple purposes: the elders’ oath affirming proper guardianship of roads, deterrence of future murders, and mystical signification of Christ’s lowly death.
• Definition and Purpose of a People: A people is defined as a multitude brought together by the consensus of law and common usefulness. The law orders society through three main functions: (1) establishing judges and judicial procedures; (2) regulating property through division, restraint of alienation, and rules of succession; (3) establishing common use of goods through care, fruits, and charitable communication.
• Property Regulation: The law divides possessions by lot, prevents perpetual alienation of land (restoring property in certain times), establishes rules of succession (son, daughter, brothers, uncles, nephews), and requires heiresses to marry within their tribe to prevent confusion of tribal lots.
• Common Use of Goods: The law permits common use through three means: care for neighbors’ animals, permission to eat from neighbors’ vineyards (without carrying away), and special provisions for the poor (gleanings, fruits in the seventh year, and tithes).

Key Arguments #

On the Sufficiency of Two Witnesses #

• Objection: It is possible for two or three witnesses to lie together, so why does the law require only two or three witnesses?
• Response: Human matters do not admit of demonstrative proof (probatio demonstrativa) but only of probable conjecture (conjectura). Though it is possible for multiple witnesses to conjure together in falsehood, it is neither easy nor probable. The law deters perjury through grave punishment.

On Proportional Punishment #

• Objection: Punishment should be proportional to guilt (Deuteronomy 25), yet the law establishes unequal punishments for equally grave sins (e.g., gathering wood on the Sabbath and eating with revelry both warrant death).
• Response: Punishment is determined not only by gravity of guilt but by four additional causes:
  1. The customary nature of the sin (customary sins require graver punishment to withdraw men from them)
  2. The great concupiscence or pleasure in the sin (sins of strong desire require graver punishment)
  3. The easiness of committing and hiding the sin (easily hidden sins require graver punishment when manifested, as a terror to others)
  4. The degree of voluntariness (involuntary acts are wholly excused; sins from weakness diminish punishment; sins from ignorance require expiation; sins from pride are punished by crime; sins from stubbornness warrant death)

On Punishment of Brute Animals #

• Objection: Moral punishment is owed only to guilt, but brute animals cannot have guilt; therefore, it is unsuitable to punish them.
• Response: Animals are not punished for their own guilt but as punishment of their negligent owners and as a form of detesting the sin they caused. If an animal has caused harm despite the owner’s care, it may be kept alive if discovered; otherwise, restitution is made.

On Disproportion in Restitution for Theft #

• Objection: Why does theft of sheep require fourfold restitution while theft of cattle requires fivefold?
• Response: The law considers the difficulty of guarding different animals. Sheep in fields are difficult to guard and frequently stolen, hence fourfold restitution. Cattle are even more difficult to guard (not kept together) and have five uses (sacrifice, meat, milk, hide, labor), hence fivefold restitution. This restitution may be commuted to twofold if the stolen animal is found alive.

On the Heifer Ceremony #

• Objection: Why command the killing of a heifer in an uncultivated place when a man is found murdered and the killer is unknown (Deuteronomy 21)?
• Response: The ceremony serves three literal purposes: (1) the elders swear they did not overlook guarding the ways, affirming their care; (2) the killing of a useful animal deters future murders, signifying that the murderer, though useful and strong, will be killed; (3) the uncultivated place remaining uncultivated is a sign. Mystically, the heifer signifies Christ’s flesh, which does not draw corruption and was killed in lowliness, through which all sins are purged.

On the Order of Property and Society #

• Objection: How does the law sufficiently order the behavior of the people regarding possessions and relations?
• Response: The law establishes three essential functions:
  1. Judges and Judgment: Establishing judges and magistrates (Deuteronomy 16:18), institutes just procedures (no respect of persons), forbids judges from accepting gifts, institutes two or three witnesses, and establishes proportional punishments.
  2. Property Division and Succession: Divides possessions by lot (Numbers 26), prevents perpetual alienation (restoring property in certain times), establishes succession by proximity (son, daughter, brothers, uncles, nephews), and requires heiresses to marry within their tribe (Numbers 36) to preserve tribal distinction.
  3. Common Use: Permits common use through care (returning lost animals), permitted eating from neighbors’ vineyards, leaving gleanings for the poor, and allowing free enjoyment of fruits in the seventh year.

Important Definitions #

• Probatio demonstrativa: Demonstrative proof; infallible certainty, not achievable in human affairs.
• Conjectura: Probable conjecture or guess; sufficient for human judgment and persuasion (used by rhetoricians).
• Culpabilitas: Degree of guilt or blameworthiness, determined by the voluntariness of the act.
• Modus peccati: The manner or mode of sin; the qualitative character that determines the appropriate punishment.
• Talionum (lex talionis): The law of retaliation; equal punishment (“eye for an eye, tooth for a tooth”).
• Ignominia: Disgrace or public shame; a form of punishment involving loss of honor.
• Vincula: Bonds or chains; imprisonment.
• Verbera: Blows or stripes; beating or flogging.
• Damnum: Harm or loss; pecuniary punishment requiring restoration.
• Contumax: Stubborn, rebellious, pertinacious; describing one who deliberately defies law and order.

Examples & Illustrations #

Witnesses and Testimony #

• Two or three witnesses suffice for testimony in law, not because three witnesses cannot lie, but because it is neither easy nor probable that they conjure together, and they are deterred by grave punishment for perjury.

Customary Example: Woman on Airplane #

• Berquist recounts a woman who feared eating meat on an airplane on Friday, fearing the plane would crash. He notes that ignorance of the fact (not knowing the law applied) differs from ignorance of the precept (not knowing the law itself), and that in those times, served meals could be eaten on an airplane without violation.

Punishment Proportional to Guardianship #

• Theft of sheep requires fourfold restitution because sheep are difficult to guard in fields. Theft of cattle requires fivefold because cattle are even more difficult to guard (not kept together) and have multiple uses (sacrifice, meat, milk, hide, labor). Restitution may be halved if the animal is found alive.

Heifer Ceremony #

• When a murdered man is found and the killer is unknown, the elders of the nearest city take a heifer, never yoked, to an uncultivated, stony valley, break its neck, and swear they did not overlook guarding the ways. This signifies: (1) the elders’ care in guardianship; (2) the murderer’s destruction despite his usefulness; (3) the uncultivated place as a perpetual sign. Mystically, the heifer is Christ’s flesh, killed in lowliness, through which sins are purged.

Personal Anecdote: Cat and Chicken #

• Berquist’s family had a cat that chased birds. When given a raw chicken to eat, the cat took it into the bushes, fearing punishment for eating birds, showing learned avoidance of what he had been trained to avoid.

Skeleton Preparation #

• Berquist boiled a bird skeleton for a pre-med biology class. When his mother’s visitor came to the kitchen and asked what was cooking, he feared severe trouble, illustrating the cultural sensitivity around harming creatures.

Questions Addressed #

Objection Eight: On the Requirement of Two or Three Witnesses #

• Question: If it is possible for two or three witnesses to lie, why does Deuteronomy 19 establish two or three witnesses as sufficient?
• Resolution: In human affairs, demonstrative proof is impossible; probable conjecture suffices. Though possible for multiple witnesses to conjure in falsehood, it is not easy or probable. False witnesses are gravely punished to deter perjury.

Objection Nine: On Proportionality of Punishment #

• Question: If punishment should be proportional to guilt (Deuteronomy 25), why does the law inflict grave punishment for relatively minor sins (e.g., gathering wood on the Sabbath, disobedient son)?
• Resolution: Punishment is determined not solely by gravity of guilt but by the customary nature of the sin, the concupiscence involved, the ease of committing and hiding it, and the voluntariness of the act.

Objection Eleven: On Punishment of Brute Animals #

• Question: Moral punishment is owed only to guilt, but brute animals cannot have guilt; therefore, how can the law command killing animals that harm humans (Exodus 21, Leviticus 20)?
• Resolution: Animals are not punished for their own guilt but as punishment of their negligent owners and as a form of detesting the sin. If the animal is found alive, it may be preserved if the owner kept it alive, suggesting an intention to restore it.

Objection Twelve: On the Heifer Ceremony #

• Question: When a man is found murdered and the killer is unknown, why command the killing of a heifer (Deuteronomy 21) rather than some other form of restitution or oath?
• Resolution: The ceremony serves three literal purposes (elders’ oath, deterrence through killing a useful animal, perpetual sign in an uncultivated place) and a mystical purpose (signifying Christ’s flesh, which does not draw corruption and was killed in lowliness).

Final Question: On the Order of Society #

• Question: Does the law sufficiently order the behavior of the people regarding the governance of society, property, and relations?
• Resolution: The law establishes three essential orders: (1) judges and judicial procedures; (2) property division, succession, and restraint of alienation; (3) common use of goods through care, permitted eating, and charitable provisions.