So, a Donkey and an Ox Wander into a Parallel: Exodus 23:3-6

To the Hebrews context mattered a good deal. Our own struggles to understand the use to which some New Testament writers put certain Old Testament texts may make us doubt that they cared about the Historical Grammatical and Literary context of a passage but we would be wrong.

Let’s consider the Jewish use of Exodus 23:3-6 in terms of determining legitimate and illegitimate testimony in a court of law.

It is common today to imagine that biblical law was barbaric, being little more than a few arbitrary rules set down by the powerful to keep the weak weak and themselves on top. We imagine that they had little concern for justice and would, if asked, claim their trials a farce, kangaroo courts of the first order.

Conducted properly, however, it was quite difficult to get the death penalty in a Hebrew court. You had to be caught red handed by multiple witnesses who could pass inspection as reliable witnesses and who could be separated and grilled on all points of detail without contradiction.

The foundational rules for who was and who wasn’t fit to testify is set down in Exodus 23:1-9. These verses contain a series of commands that seem to have been originally drawn from a Decalogue of laws of court legitimacy. Ten laws set in poetic parallel which show some evidence of being adjusted to context in Exodus. One of these adjustments is the adding of two laws to the once-upon-a-time Decalogue.

It is how they are added and what became of these laws that is important for us today.

Rules 1 & 2: Exodus 23:1 Don’t spread a false witness or join with those spreading malicious witness.

Rules 3 & 4: Exodus 23: 2 On the surface appears to be redundant. Don’t go with the crowd to do evil & don’t go with the crowd to pervert justice, but may be originally intended as a kind of “Don’t go with the crowd for evil, and don’t go against the crowd to pervert justice.”[1]

Rules 7 & 8: Exodus 23:7 as they stand are a rule and a reason. Don’t kill the innocent, for I will not acquit the guilty… i.e. don’t push a difficult case too hard, because I see and I’ll get them in my way and in my time. These are originally drawn from a contrast, however. Something like “Don’t kill the innocent and don’t acquit the guilty.” The LXX reads “Thou shalt abstain from every unjust thing: thou shalt not slay the innocent and just, and thou shalt not justify the wicked for gifts.”

Rules 9 & 10: Exodus 23:8-9 are a pair of story laws. Don’t take bribes & don’t oppress the foreigner.

So… when we find another pairing in Rules 5 & 6: Exodus 23:3 & Exodus 23:6 , we shouldn’t be surprised. Don’t favor a poor man & Don’t oppress the poor man. This is similar to Leviticus 19:15. As these exist here in Exodus, they espouse a principle of fairness; they strike down simultaneously those enamored with power and those immobilized with pity.

Aside from the counter-cultural slap in the face this gives to our own modern tendency to favor certain “victim” people in any argument or dispute, there is another problem. This pair is split by two additional story laws that don’t seem to have anything to do with court. It is as if some scribe somewhere went into a fugue state and started writing randomly. The laws of the wandering ox and the trapped donkey are jammed directly in between the court rules of the poor.  Exodus 23:4-5. I don’t think the interruption is accidental.

These laws are apodictic law… laws that have no circumstance and no punishments attached. They are laws that appeal to the heart before a gracious, but all seeing covenant God. In these, God has chosen the least likely person—your enemy. God has chosen lesser living things:  an ox and a donkey.  This establishes the rule of lesser and greater… that which is true of a lesser thing is all the more true of a greater thing. Knowing man, God seeks to prevent one from leaving his enemy to his trouble. “Serves him right!” is out. God has demanded an act of love toward one’s enemy in his moment of need.[2]

So, what do the ancients do with such laws? They read them in context. They apply them to court.

J. Duncan M. Derrett considers these two laws as they functioned in the Jewish community of Jesus’ day in his chapter on the woman caught in adultery in John 8. The ancients applied the rule of lesser and greater. If, according to Exodus 23:4, one is to save his enemy’s ox from wandering astray, how more much more his enemy when he, as man, wanders away?  If, according to Exodus 23:5, one is to restore an enemy’s donkey caught beneath a load he cannot bear, how much more his enemy when he is caught beneath a load of sin?  One must seek to win an enemy. A man who lies in wait to catch his enemy in his sin so that he can accuse him and judge him, is a law breaker and a malicious witness; no one should join hands with him in their dispute.[3]