Ancient law & economics: Sabbath-breaking edition

Ancient law often seems especially cruel to us moderns. Not only do ancient laws often condone and systematize things we find repellent—a topic for another day—but the punishments seem especially harsh. One famous example from the Torah*:

Exodus 31:12-17 Revised Standard Version (RSV)

The Sabbath Law

12 And the Lord said to Moses, 13 “Say to the people of Israel, ‘You shall keep my sabbaths, for this is a sign between me and you throughout your generations, that you may know that I, the Lord, sanctify you. 14 You shall keep the sabbath, because it is holy for you; every one who profanes it shall be put to death; whoever does any work on it, that soul shall be cut off from among his people. 15 Six days shall work be done, but the seventh day is a sabbath of solemn rest, holy to the Lord; whoever does any work on the sabbath day shall be put to death. 16 Therefore the people of Israel shall keep the sabbath, observing the sabbath throughout their generations, as a perpetual covenant. 17 It is a sign for ever between me and the people of Israel that in six days the Lord made heaven and earth, and on the seventh day he rested, and was refreshed.’” [emphasis mine]

One way to deal with this passage is to say that God said it, and God’s wisdom is greater than ours, so we don’t have to understand it, we just have to do it however harsh it seems. (As long as we’re in the population to whom the law applies, Jews in this case.) There are various other apologetic ways to look at it. I’m not inclined or qualified to discuss all of them, but they’re similar.

If one interprets this example as coming from a human document the analysis is very different. There must be some other justification intelligible to humans. A little law & economics can help here. The Torah law is incredibly thorough in its proscriptions. Some of them govern the minutest details of daily household life. The probability of detection for many of these infractions is very low. If a person is seen to commit an easily detectable infraction, it’s likely he is also committing and getting away with smaller infractions.

The logic of punishing things that are easier to detect because of an assumed correlation to things that are harder to detect (or prove) is apparent even today. Al Capone went to prison for income tax violations even though it was known by everybody that he was involved in many more serious matters. Structuring laws punish how people deposit and withdraw cash because this is much easier to detect than the illegal things they might do with the cash.

There was no science of forensics in the ancient world, no dedicated police force, and rarely any paper trails. In order to deter people from breaking the law when the chances of getting caught were slim, the magnitude of the punishments had to be ramped up. While we have no way of knowing it’s fair to assume violations occurred all the time without anybody else ever finding out about them.

The worthiness of the goals of these ancient laws, and indeed of parallel modern laws, is a separate topic. The goals of the Torah law may have been order and social cohesion among the people of Israel, or they may have been fabrications to shore up the power of the powerful at that time, or a combination. Readers of this blog know that I think the War on Drugs is a fantastically awful institution, for example, and it is one of the major justifications for structuring laws. But you can see how, given the ends, there is a logic to the legal means.

As a final note, though I don’t intend this as an apologia for any particular religious law, I suppose one could explain the passage by saying that God had the law & econ reasoning in mind when declaring the penalty for breaking the sabbath.

* I use the RSV here since the relevant passage in the Orthodox Jewish Bible is harder to follow for those not versed in it.


Author: rfmcelroyiii

Student and instructor of economics.

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