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Prof. Rev. Jean Louis SKA, S.J.

Conference for the inauguration of the chair Fernando Bustos Barrena
(Pontifical Biblical Institute - October 21, 2004)

1. Introduction

The topic of this short essay, as the title indicates, is juridical in nature. My intention, however, in trying to explain the importance of the distinction between ‘rights’ and ‘laws’ is also to answer one of the main questions visitors coming to this Biblical Institute may have in mind, namely “What is the use of such an Institution where people dedicate so much time and energy to studying ancient texts, written two thousand years ago at least and in dead languages? Is there any connection between these studies and the world of today? What use is there for the great human family in studying the Bible?”

My contention is that this study can be useful, and even essential, because the Bible, Old and New Testament alike, remind us of some basic values on which the future of our culture and civilization depends, and of some fundamental distinctions that help guide our reflection and behaviour in private and public life.

2. The distinction between ‘rights’ and ‘laws’ in general

The distinction between ‘rights’ and ‘laws’ is, in my opinion, one of those essential elements of our culture that can be nurtured by a careful reading of the Bible. The starting point of my reflection is an article published some time ago by the former president of the Italian Constitutional Court, Gustavo Zagrebelsky (cf. La Repubblica, June, 25th 2003). The example he chooses to illustrate his theory is not biblical, however, but stems from Greek literature, namely from Sophocles’s tragedy Antigone. A short summary of this work is surely useful to understand the point G. Zagrebelsky endeavours to drive home. After Oedipus, king of Thebes, left the city, driven away by his two sons Polyneices and Eteocles, power is exercised by Creon, Jocasta’s brother. Jocasta was Oedipus’s wife and she committed suicide when she realised that she had married her own son (Oedipus had unknowingly killed his father Laius and married his own mother Jocasta). But Eteocles and Polyneices are both ambitious and hanker after the throne of Thebes. Eteocles, however, sides with Creon whereas Polyneices chooses to rebel against his uncle. A battle between the two parties takes place in which both brothers are killed. After his victory, Creon forbids that Polyneices, the rebellious son, be buried. But Antigone, Polyneices’s brother, rejects her uncle’s decision in the name of the unwritten law of her conscience and affirms that both her brothers, Eteocles and Polyneices, have a right to be buried. Polyneices, she says, is her brother and remains her brother even though he died as a rebel and a traitor (‘It was a brother, not a slave, who died’ – Antigone, 516). For this reason, she buries him. Creon hears this and Antigone is condemned to death. She dies, but Creon’s wife who tried to dissuade him, commits suicide, and his son Haemon, Antigone’s fiancé, does the same. Creon himself, covered with shame and dishonour, has to leave the city eventually. Antigone dies, but Sophocles’s play wants to show, in the eyes of many critics, that she is the moral winner in this long battle between the unwritten law of her conscience and Creon’s decision.

In this moral conflict, Antigone clearly embodies what G. Zagrebelsky identifies with ‘rights’ while Creon represents the public ‘law’. To put it in very simple words, for Antigone, the ‘rights’ of a brother are much more important than the ‘law’ decreed by her uncle, the king of Thebes, Creon. Let us now try to see with more precision which are the main differences between these two juridical concepts which correspond to the two Latin words ius (‘right’) and lex (‘law’). I will speak of ‘rights’ before I list the characteristics of ‘laws.’

  1. Rights are unwritten principles, they are not promulgated and do not need to be promulgated; they have a value in themselves because they are rooted in human conscience. For Antigone, ‘rights’ are the ‘the gods’ unwritten and unfailing laws’ (Antigone, 455).
  2. Rights are unchangeable and inalienable. They are not subject to changes and modifications, and can never be abrogated. They are universal in nature and exist therefore in every human society, at all times and in all cultures.
  3. Rights are anchored in the basic structures of a society, especially the family. They mainly concern the dignity, the integrity, and the freedom of the person and the family, and are for the most part related to the basic events of personal and family life such as birth, marriage, and death.
  4. Rights are above all laws, because they are more ancient and more fundamental.
  5. In any society women are the first and natural defenders and custodians of rights. Antigone, in Sophocles’s tragedy, is one of the best examples of this role of women in society.

‘Laws’ can be easily defined in opposition to ‘rights.’

  1. Laws are always proclaimed, promulgated in an official way and, most of the time, in a written form.
  2. Laws are changeable and modifiable, they can even be abrogated. They begin to exist when they are introduced by human authority and disappear when abrogated by the same authority.
  3. Laws belong to societies and nations. They are the creations of public authorities and powers. They are therefore limited in scope; they are always anchored in a specific place, a particular nation or a particular culture. They never have a universal application.
  4. Laws are inferior to rights and to be ‘just’ laws, they have to be in harmony with rights. There can be ‘unjust laws’ whereas there cannot be ‘unjust’ rights. Laws are unjust precisely when they are in contradiction with the basic and universal rights of humankind.
  5. Laws are in general the work of men, especially in Antiquity because power was exercised mostly by men. As Antigone embodies the basic ‘rights’ of the family, Creon represents the ‘laws’ of a society.

     Let us add that ‘rights’ and ‘laws’ coexist in every society. Laws are of course indispensable, and they are not to be rejected as a ‘necessary evil.’ But by their nature, they are perfectible and have to take other principles into account. Their value and authority depend on the legitimacy of the lawgiver and, more important, on their conformity to the basic and unwritten rights of humankind. In the case of Antigone and Creon, there is conflict between a law proclaimed by a king and the unwritten law of Antigone’s conscience. As we will see, there are examples of similar conflicts in the Bible.

3. ‘Rights’ and ‘laws’ in the Bible

3.1. The distinction in two prophetic texts

     First of all, a couple of biblical texts confirm the existence of a difference, and in some cases of a conflict, between basic rights and written laws. Our first text witnessing to this conflict is Isaiah 10:1-2 which recites (I quote the New Revised Standard Version, Oxford: University Press, 1989):

Ah, you who make iniquitous decrees, who write oppressive statutes, to turn aside the needy from justice and to rob the poor of my people of their right, that widows may be your spoil, and that you may make the orphans your prey!

The prophet Isaiah (around 740-680 B.C.E.), who is an official at the royal court, defends the ‘rights’ of the poor and the needy of his people over against the ‘laws’ introduced by the ruling class. The needy, the poor, the widows, and the orphans are, traditionally in the Bible, members of the lowest classes of society and those more easily oppressed and exploited. What is interesting, however, is that Isaiah goes so far as to say that ‘decrees’ and ‘statutes’ can be iniquitous and oppressive, which means that he introduces a criterion of judgment, a standard to which ‘laws’ must conform. In simple words ‘laws’ can never justify oppression and injustice.

The prophet Jeremiah (around 625-585 B.C.E.) has a similar attitude to written laws when he says (Jer 8:8): How can you say, “We are wise, and the law of the Lord is with us,” when, in fact, the false pen of the scribes has made it into a lie?

The prophet draws a sharp distinction between ‘the law of the Lord’ on the one hand and the ‘laws’ written by the ‘false pen of the scribes’ on the other. Several elements in this text are unclear, but it clear that the prophet undoubtedly contrasts the laws written by the scribes with the unwritten laws of God, which are valid in themselves. The unwritten laws of God are surely, in the eyes of the prophet, superior to the written laws, and salvation comes from the observance of the unwritten laws of God, not from the laws falsified by the scribes.

3.2. The distinction in some biblical narratives

The same opposition between rights and laws can be illustrated by a series of biblical narratives. It comes as no surprise that the first examples come from the book of Exodus which describes a fierce conflict between Pharaoh, who represents the ‘law,’ and Israel whose rights are defended by God in person. The first example is to be found at the beginning of the book, in Exod 1:15-21. The context is well-known. Pharaoh is frightened by the people of Israel because they are numerous and ‘fill the land’ (cf. Exod 1:7, 12). He then decides to oppress them. First, he imposes forced labour on them and makes them build military cities (Exod 1:11). Second, he orders the midwives of the Hebrews to kill all the male children at birth (Exod 1:15-16). But the midwives do not obey Pharaoh because ‘they fear God,’ as the text puts it (Exod 1:17), and they let all the new-born children live. The decisive element in this particular case is the ‘fear of God,’ an expression that can mean, in certain contexts, ‘respect of basic principles of social life’ or ‘respect of basic values of human life’ (cf. Genesis 20:11; 42:18; Exodus 18:21; Deuteronomy 25:18; Psalm 55:19). In the case of Exod 1:15-21, the midwives consider that Pharaoh cannot decide whether a new-born child can live or not. It is not in his power to decide about matters of life and death. Pharaoh’s law contradicts a basic ‘right,’ the right to live that belongs to every child coming to the world. Not even Pharaoh, the king of Egypt , can deny this ‘right.’ We may notice that in this case, women defend a basic right in the face of the political authority represented by a man, Pharaoh of Egypt.

The second example is the next story in the book of Exodus which recounts Moses’ birth (Exod 2:1-10). The Hebrew child, as the reader of the story knows, is condemned to death because of Pharaoh’s decree (cf. Exod 1:22) and he will be saved by three women who disobey the king of Egypt. As in the first example, women defend the basic ‘right’ of the child to live over against the king’s ‘law.’ And the narrative’s purpose is to show that the sovereign’s authority has to yield when it is in clear conflict with what is perceived as a basic right of every living being. The story is told in a masterly way. The first woman on the scene is the mother and nobody is surprised when she tries to hide her child for three months. Maternal instinct adequately explains her behaviour and nobody, of course, can object that her reaction is unlikely. But after a while, it becomes impossible to hide the child and she has to invent a stratagem. The story describes how she makes of a basket and she makes it waterproof with pitch and bitumen. She puts the basket in the reeds along the river’s bank and asks her daughter to keep watch (Exod 2:3-4). And who comes to bathe in the river? None other than Pharaoh’s daughter! The dilemma is clear because on the one hand she is a woman, and as a woman she can react as a guardian of the basic right to live, and on the other hand she is the sovereign’s daughter who, by her position, should be one of the first persons to apply the law. The narrative does not leave the reader in suspense for long. Pharaoh’s daughter discovers the child in the basket, the child happens to cry right at that moment, the young lady has pity on him and decides to save him. The main point of the narrative, in my opinion, is to show that every woman, faced with a the small child, would react as the mother did at the beginning of the story. Even Pharaoh’s daughter cannot help but save the child when she discovers it. The maternal instinct in Pharaoh’s daughter speaks more loudly that her position as Pharaoh’s offspring. In other words, Pharaoh’s order is contra naturam, it goes against what nature dictates to every sensible and sensitive person in this world, even to a person belonging to the ruling class. For this reason Moses is adopted by Pharaoh’s daughter and is raised at the court, at the expense of the royal palace. There is of course much irony in this narrative besides its main message about the need to defend certain basic rights, even for those who belong to the legislator’s family.

Our third example also comes from the book of Exodus. After several incidents, Moses follows the way inaugurated by the women who saved him and fights for the basic rights of his people against a Pharaoh more interested in economic than in human problems. Chapter 5 of the book of Exodus vividly epitomises this conflict. The disagreement between Moses and Aaron on the one hand and Pharaoh on the other has very modern aspects. Pharaoh has levels of production in mind and he knows the psychology of the work-force very well. In dealing with Moses and Aaron, one also feels that what matters for him is first of all economic growth and profitability. When Moses and Aaron ask him to give Israel three days off to celebrate a feast in the desert, he immediately reacts like somebody who is utterly conscious of the economic and financial loss that these three days represent. Moses and Aaron, on the other hand, plead for the consideration of other, essential, values. The human person is more that what he or she produces. The time given to the celebration of a feast can surely be considered as ‘wasted time’ from a merely economic point of view. But human freedom and human dignity are more important than economic production. This is what Moses and Aaron defend, without much success at the beginning, but they triumph in the end because these values cannot be trampled on with impunity. It is also the reason why the right to rest one day in the week is recognised as fundamental in Israel and is part of the Decalogue, namely the Ten Commandments proclaimed by God himself on Mount Sinai (Exod 20:8-11). Work is certainly something of value, but nobody on earth has the power to deprive even a servant or maid from the right of resting on the Sabbath day (cf. Exod 20:10).

Our fourth example is slightly different because, prima facie, the narrative seems to present a case of clear injustice and not a conflict between a law or a human decision and some basic rights. Nonetheless, it seems to me that the real problem is actually the same as the one treated in the three examples I just presented. The narrative is that of Naboth’s vineyard in 1Kings 21. The very beginning of the story is instructive in this respect. King Ahab proposes to Naboth – apparently – an honest deal. The king wants to acquire Naboth’s vineyard and offers the proprietor another, better, vineyard, or its value in money (1Kings 21:2). Naboth, however, refuses for very particular reasons. He says: “The Lord forbid that I should give you my ancestral inheritance.” Two elements deserve special attention in this sentence. First, “The Lord forbid” is an usual oath in Hebrew which means that the affair is very serious for Naboth. It touches some sacred values and may become a matter of life and death. Second, Naboth speaks of his vineyard as his “ancestral inheritance.” This means that he received it from his ancestors and especially his parents, but also that he has to hand it over intact to his descendants. This plot of land is given by God himself and represents the basic means of survival for his family, from age to age. If Naboth sells this property, he deprives his descendants for ever of their chances of survival as free citizens in their own land. The land give by the king is a manifestation of his generosity. Naboth prefers to depend on God than on the king. And money, as one knows, can easily lose its value. Or, once it is spent, it is lost for ever.

King Ahab and Queen Jezebel have a different view of the situation. First of all, when Ahab repeats Naboth’s words in the following verses, he removes one by one the essential elements of what his partner has just said. First, “Ahab went home resentful and sullen because of what Naboth the Jezreelite had said to him; for he had said, ‘I will not give you my ancestral inheritance’” (1Kgs 21:4). In this sentence, Naboth’s oath in the name of the Lord, the God of Israel, has disappeared. Second, when Ahab explains to his wife Jezebel the reason of his disappointment, he also removes the reference to the ancestral inheritance. The vineyard is just Naboth’s vineyard: “I spoke to Naboth the Jezreelite and said to him, ‘Give me your vineyard for money; or else, if you prefer, I will give you another vineyard for it’; but he answered, ‘I will not give you my vineyard.’”

For the king, Naboth is the sole proprietor of the vineyard, and this plot of land is alienable as is any other economic commodity. It can be bought and can be sold after an agreement between the two parties on an equitable basis. For Naboth, on the contrary, the vineyard is an inalienable commodity, because it is the means of subsistence of his family, received from his ancestors and that he has to hand on to his descendants. He is not the proprietor of it, the family is. He has no right to sell what does belong to his family as such, and not to himself. The text underlines in this way a basic right of every family in Israel, namely the right to possess a piece of land which is the necessary basis for a decent existence. The piece of land is inalienable because the family’s survival depends on it. Even a king cannot modify this state of affairs. Of course, King Ahab and Queen Jezebel succeed by crooked ways to take possession of Ahab’s land. But immediately afterwards, the prophet Elijah comes on the scene, accuses Ahab of murder and pronounces his condemnation in the name of the Lord (1Kings 21:17-26).

These examples will suffice, I think, to convince us that the Bible has a very clear view of the differences between ‘rights’ and ‘laws’, and that the distinction is a valid and useful one in our world as well. And the Bible tells us, eventually, that there are everywhere midwives who fear God, daughters of rulers who have pity on new-born children, personalities such as Moses and Aaron who stand up to defend human dignity and human freedom, and prophets like Elijah who side with all the Naboths of this world threatened by some unscrupulous Ahab and Jezebel.