Deuteronomy 17:8
If there arise a matter too hard for you in judgment, between blood and blood, between plea and plea, and between stroke and stroke, being matters of controversy within your gates: then shall you arise, and get you up into the place which the LORD your God shall choose;
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(8) If there arise a matter too hard for thee.—Literally, too wonderful.

Between blood and blood, between plea and plea, and between stroke and stroke.—The “blood” and the “plea” seem to indicate criminal and civil cases. The word “stroke” is the common word for “plague” in the Pentateuch and elsewhere. It may possibly refer to cases of ceremonial purity or impurity, especially in reference to disease. There is an evident allusion to this law in the history of King Jehoshaphat (2Chronicles 19:8-10). There the words are “between blood and blood, between law and commandment, statutes and judgments.” The questions are (1) between two contending parties; (2) between the law as a general rule and its application to particular duties, institutions and requirements. Other passages in the same chapter recall Deuteronomy 16:18-20.

Matters of controversy within thy gatesi.e., in the local courts of their several cities. The “gate” was the place of judgment. In 2Chronicles 19:10, the phrase is more clearly expressed, thus, “what cause soever shall come unto you of your brethren that dwell in their cities.”

Into the place which the Lord thy God shall choose.—This implies what was afterwards ordered before Moses’ death, that the standard copy of the Law would be kept beside the Ark of the Covenant, in the sacred place (Deuteronomy 31:26).

(9) Thou shalt come unto the priests the Levitesi.e., “the priests that come of the tribe of Levi” (Rashi). Some modern critics say the writer of Deuteronomy knew no distinction between priests and Levites; but see above on Deuteronomy 11:6, and also the notes on Deuteronomy 31:9; Deuteronomy 31:25.

The priests, the Levites, and . . . the judge.—The order agrees exactly with the constitution which Moses left behind him at his death. This has been already indicated in Numbers 27:15-21. Joshua was to “stand before Eleazar.” Eleazar was to ask counsel from Jehovah, and at his word Joshua and all the people were to go in and out. The order, when the two are mentioned together in the Book of Joshua, is invariably “Eleazar the priest and Joshua the son of Nun,” not vice versâ. The priests are the custodians of the Law; the judge or chief magistrate is the executor of it. (Comp. Malachi 2:7-8.) The principle is not altered by the substitution of a king for the judge, or by the addition of a prophet.

That shall be in those days.—Rashi and the New Testament are curiously agreed in the application of this part of the commandment. Our Lord, in Matthew 23:2-3, says of the Scribes and Pharisees (the judges of His day) that they “sit in Moses’ seat: All therefore whatsoever they bid you observe, that observe and do.” Rashi says here, “Although he is not like the rest of the judges that were before him, thou must hearken to him. There is no judge for thee except the judge that is in thy days.”

(9-11) And they shall shew thee the sentence of judgment . . . According to the sentence of the law . . . thou shalt do.—This passage should be carefully noted. The function of the priest and judge was to show, inform, teach, and tell the applicant the sentence of the law, i.e., of the written law. The four English verbs have only three equivalents in Hebrew, viz., tell, teach and say. It is not sufficiently observed that this defines the relation between the Church and the Bible from the time the Law (which was the germ of the Bible) was delivered to the Church, and that the relation between the Church and the Bible is the same to this day. The only authority wherewith the Church (of Israel, or of Christ) can “bind” or “loose,” is the written Law of God. The binding (or forbidding) and loosing (or permitting) of the Rabbis—the authority which our Lord committed to His Church—was only the application of His written word. The Rabbis acknowledge this from one end of the Talmud to the other by the appeal to Scripture which is made in every page, sometimes in almost every line. The application is often strained or fanciful; but that does not alter the principle. The written word is the chain that binds. Nor does the varying relation between the executive and legislative authority alter the principle. Where the law of Jehovah is the law of the land, death may be the penalty of disobedience. Where it is only the law of the Christian community, exclusion may be the extreme penalty that is possible. But still the relation between the written word and the ministers of the Church is the same. The Church is the “witness and keeper of Holy Writ,” and can only shew from thence the sentence of judgment. The sentence is an application of the law, not a mere invention of the authorities themselves; and it would be easy to show from history how every misapplication of the Divine code brought with it surely, sooner or later, its own refutation, and the overthrow of the unfaithful government. The prophets not seldom took the place of tribunes of the people in cases of oppression. No one lifted up a more distinct protest from the law itself against the misapplication of the law than the Prophet like unto Moses, who formally acknowledged the authority of them that sat in Moses’ seat.[3]

[3] Manifestly, when copies of the Law were scarce, and when a good deal of it, like this Book of Deuteronomy, was general, and even prophetic, a board of authorised interpreters, or appliers, of the law to matters of detail was an absolute necessity. (See Introduction to Deuteronomy for more on this head.)

(12) And the man that will do presumptuously . . . shall die.—This word “presumptuously” occurs for the first time in this place. (See also Deuteronomy 18:22.) It is connected with “pride,” and denotes a proud self-assertion against the law. The penalty of death arises necessarily out of the theocracy. If God is the king of the nation, rebellion against His law is treason, and if it be proud and wilful rebellion, the penalty of death is only what we should expect to see inflicted. As soon as the law of Jehovah is in any way separated from the law of the land, this state of things may be altered. It is remarkable that in Ezra’s commission from Artaxerxes we find permission to identify the law of Jehovah with the law of the Persian empire to the full extent of this precept, “Whosoever will not do the law of thy God, and the law of the king, let judgment be executed speedily upon him, whether it be unto death, banishment, confiscation of goods, or imprisonment” (Ezra 7:25-26.) But such penalties, except in a theocratic government, are obviously out of place in matters connected with religion.

Deuteronomy 17:8. If there arise a matter too hard for thee — These words are to be considered as addressed to the ordinary judges, or inferior magistrates, who were appointed in every city. Between blood and blood — That is, in capital causes, whether a man hath committed wilful or casual murder. Between plea and plea — In civil causes, about words or estates, when the question is, whose cause or plea is the better? Between stroke and stroke — In criminal causes; in the case of wounds or blows inflicted by one man upon another, of which see Exodus 21:20. Being matters of controversy — That is, such things being doubtful, and the magistrates being divided in their opinions about them. Thou shalt get thee unto the place which the Lord shall choose — Namely, to set up his tabernacle or temple there; because there was the abode, both of their sanhedrim, which was constituted of priests and civil magistrates, and of the high-priests, who were to consult God, by Urim, in matters which could not be decided otherwise.17:8-13 Courts of judgment were to be set up in every city. Though their judgment had not the Divine authority of an oracle, it was the judgment of wise, prudent, experienced men, and had the advantage of a Divine promise.The cases in question are such as the inferior judges did not feel able to decide satisfactorily, and which accordingly they remitted to their superiors (compare Exodus 18:23-27).

The Supreme court Deuteronomy 17:9 is referred to in very general terms as sitting at the sanctuary Deuteronomy 17:8. "The judge" would no doubt usually be a layman, and thus the court would contain both an ecclesiastical and a civil element. Jehoshaphat 2 Chronicles 19:4-11 organized his judicial system very closely upon the lines here laid down.

De 17:8-13. The Priests and Judges to Determine Controversies.

8-13. If there arise a matter too hard for thee in judgment—In all civil or criminal cases, where there was any doubt or difficulty in giving a decision, the local magistrates were to submit them by reference to the tribunal of the Sanhedrim—the supreme council, which was composed partly of civil and partly of ecclesiastical persons. "The priests and Levites," should rather be "the priests—the Levites"; that is, the Levitical priests, including the high priest, who were members of the legislative assembly; and who, as forming one body, are called "the judge." Their sittings were held in the neighborhood of the sanctuary because in great emergencies the high priest had to consult God by Urim (Nu 27:21). From their judgment there was no appeal; and if a person were so perverse and refractory as to refuse obedience to their sentences, his conduct, as inconsistent with the maintenance of order and good government, was then to be regarded and punished as a capital crime.

Too hard for thee; he speaks to the inferior magistrates, who were erected in several cities, as appears by the opposition of these to them at Jerusalem. If, saith he, thou hast not skill or confidence to determine so weighty and difficult a cause.

Between blood and blood, i.e. in capital causes in matter of bloodshed, whether it be wilful or casual murder, whether punishable or pardonable by those laws, Exodus 21:13,20,22,28 22:2 Numbers 35:11,16,19 Deu 19:4,10.

Between plea and plea; in civil causes or suits between plaintiffs and defendants about words or estates.

Between stroke and stroke, i.e. either first in ceremonial causes,

between plague and plague, between the true leprosy, which is ofttimes called the plague, and the seeming and counterfeit leprosy, which was oft-times hard to determine. And under this, as the most eminent of the kind, may seem to be contained all ceremonial uncleannesses. But this seems not probable,

1. Because the final determination of the matter of leprosy is manifestly left to any particular priest, Le 13 14.

2. Because the person suspected of leprosy was not to be brought to Jerusalem, to be tried there, but was to be shut up in his own city and house, Leviticus 13:4,5; and the judges at Jerusalem neither could nor would determine his case without once seeing the person.

3. Because the case of leprosy was not hard or difficult, as those causes are said to be, but plain and evident, and so particularly and punctually described, that the priest needed only eyes to decide it. Or rather,

2. In criminal causes, concerning blows or wounds inflicted by one man upon another, and to be requited to him by the sentence of the magistrate according to that law, Exodus 21:23-25, wherein there might be many cases of great difficulty and doubt, about which see the annotations there.

Matters of controversy, i.e. such things or matters of blood and pleas and strokes being doubtful, and the magistrates divided in their opinions about it; for if it was a clear case, this was not to be done. Some make this an additional clause to comprehend these and all other things, thus as if he had said, and in general,

any words or matters of strifes or contentions.

1. Which the Lord shall choose, to wit, to set up his worship and tabernacle or temple there; because there was the abode, both of their sanhedrim, or chief council, which was constituted of priests and civil magistrates, who were most able to determine all controversies, and of the high priests, who were to consult God by Urim, Numbers 27:21, in great matters, which could not be decided otherwise. If there arise a matter too hard for thee in judgment,.... This is spoken to inferior judges in cities in the country, who sometimes might have cases too wonderful and mysterious, as the word signifies, or secret and hidden, such as were out of their reach and beyond their capacity, and so be very difficult for them to determine what should be done:

between blood and blood; that is, whether a man is guilty of shedding innocent blood or not; when such a case is depending between a person charged with it and the relatives of the deceased, or between a man slayer and the avenger of blood, and the question is, whether he may have the benefit of a city of refuge or not, and there are some circumstances attending it which make it difficult how to determine:

between plea and plea; of the plaintiff on one side and of the defendant on the other, and both have so much to say in their own cause, that it is hard to decide which is in the right and which is in the wrong, whether in capital or pecuniary cases; it chiefly if not solely respects civil things in controversy:

and between stroke and stroke; blow or wound which one man received from another, and for which he commences a suit of law upon it, Exodus 21:18 or for assault and battery; and so Aben Ezra interprets it of blows and bruises; but the Jewish writers generally interpret it of the plague, or stroke of leprosy; so the Targums of Jonathan and Jerusalem; but the examination of such a case did not belong to the civil magistrate, but to a priest; nor was such a person had up to Jerusalem to be searched, but was shut up in a house until further evidence could be got; and, besides, the signs of the leprosy are so distinctly given, that at waiting a proper time, there was seldom or ever any difficulty about determining it:

being matter of controversy within thy gates; or what are matters of controversy about anything else; for the phrase is general, as Aben Ezra observes, and takes in everything in which anything difficult might occur; so Jarchi interprets it of things which the wise men of a city are divided about; one pronounces a person or thing unclean, another clean, one condemning and another justifying, and so far rightly; for this respects not controversies between men, that may be brought into courts of judicature, but controversies or divisions arising in these courts upon them, between the judges themselves, they not agreeing in their opinions:

then shalt thou arise and get thee up into the place which the Lord thy God shall choose; to Jerusalem, to the great sanhedrim or court of judicature, to which the inferior judges were to apply themselves, in matters of moment and difficulty, for instruction, information, and direction; it being supposed that in such a court such like cases may have been brought before them, and they were expert and understanding in them.

If there arise a matter too hard for thee in judgment, between blood and blood, between plea and plea, and between stroke and stroke, being matters of controversy within thy gates: then shalt thou arise, and get thee up into the place which the LORD thy God shall choose;
8. If there arise a matter too hard for thee] Heb. if a matter be too wonderful (or extraordinary) for thee; cp. Deuteronomy 22:11. In Deuteronomy 1:17, and Exodus 18:22; Exodus 18:26 (E), hard translates other Heb. words.

between blood and blood] i.e. between accidental manslaughter and wilful murder, Deuteronomy 4:42, Deuteronomy 19:4 f., Deuteronomy 19:11 f.; E, Exodus 21:12-14.

between plea and plea] Probably questions of property, as in Exodus 22:1 ff., etc.

between stroke and stroke] Questions of compensation for bodily injuries, such as are defined in E, Exodus 21:18 ff.

matters of controversy within thy gates] Summary of the previous clauses—all local cases. See on Deuteronomy 12:12, Deuteronomy 16:18.

get thee up] Of resort to the Sanctuary, 1 Samuel 1:3, etc., Psalm 122:4.

the place, etc.] See on Deuteronomy 12:5.

8–13. Of the Judges of Final Appeal

Local cases too hard for the local courts (see Deuteronomy 16:18-20, on which this passage immediately follows) are to be taken before the Priests, the Levites at the Sanctuary, and the Judge of the time (Deuteronomy 17:8 f.), whose decisions must be strictly obeyed (Deuteronomy 17:10 f.); the man who presumptuously refuses to obey shall die (Deuteronomy 17:12 f.).—Sg. address. The association of a lay judge with the priests is remarkable. Because of this and because he regards Deuteronomy 17:8 b and Deuteronomy 17:9 a as doublets and Deuteronomy 17:10 and Deuteronomy 17:11 as another pair of doublets, Steuern. analyses the passage into two originally distinct laws (with editorial additions), one constituting the Priests of the Altar a court of appeal, the other recognising the Judge (i.e. the King) as the final authority. But Deuteronomy 17:8 b and Deuteronomy 17:9 a are not doublets, and although Deuteronomy 17:10 and Deuteronomy 17:11 are redundant it is impossible to discriminate in them two distinct sources. More probably the passage is intended to sanction the double practice prevailing in Israel from the earliest times, and during the monarchy, of the discharge of justice by both the priestly and the civil heads of the people. How the authority was divided is nowhere stated except in 2 Chronicles 19:8-11, which attributes to King Jehoshaphat (873–849) the institution of a double court consisting of Levites, priests, and heads of families. Over this the chief priest was set in all the matters of Jehovah, and a prince was set over it in all the King’s matters. But it is uncertain whether the passage merely reflects the procedure of justice in the Chronicler’s own day or is a genuine memory of that which prevailed under the monarchy. See the present writer’s Jerusalem, i. 379 n., 387 f.Verses 8-13. - So long as Moses was with the people, they had in him one to whom, in the last resort, cases might be brought for decision which were found too difficult for the ordinary judges (Exodus 18:19-26). But, as he was not to be always with them, it was needful to provide a supreme court, to which such cases might be carried when they could no longer be decided by him; and such a court is here appointed to be held at the sanctuary. Verse 8. - A matter too hard for thee; literally, too marvelous; something extraordinary, and which could not be decided by the ordinary rules of the judicature. Between blood and blood, between plea and plea, and between stroke and stroke; i.e. in cases where blood had been shed and death had ensued, either accidentally or from murderous intent (cf. Exodus 21:13, etc.; Numbers 35:9, etc.); in cases of disputed rights and claims (cf. 2 Chronicles 19:10); and in cases where corporeal injury had been suffered, whether in strife or from assault (Exodus 21:18, etc.); and, in general, wherever matters of controversy - disputes as to what was lawful and right, might arise in their towns and villages. In all such cases recourse was to be had to the court at the sanctuary - "to the priests the Levites," i.e. the priests who were of the tribe of Levi, and to the judge presiding there - the lay judge associated with the high priest as president (see Oehler, in Herzog's 'Encyclop.,' vol. 5. p. 58). It is not intended by this that an appeal was to lie from the lower court to the higher, or that the parties in a suit might carry it at once to the supreme judge; the meaning rather is that, when the ordinary judges found a case too difficult for them to deal with, they were themselves to transmit it to the supreme court for decision. If such a case should occur, as that a man or woman transgressed the covenant of the Lord and went after other gods and worshipped them; when it was made known, the facts were to be carefully inquired into; and if the charge were substantiated, the criminal was to be led out to the gate and stoned. On the testimony of two or three witnesses, not of one only, he was to be put to death (see at Numbers 35:30); and the hand of the witnesses was to be against him first to put him to death, i.e., to throw the first stones at him, and all the people were to follow. With regard to the different kinds of idolatry in Deuteronomy 17:3, see Deuteronomy 4:19. (On Deuteronomy 17:4, see Deuteronomy 13:15.) "Bring him out to thy gates," i.e., to one of the gates of the town in which the crime was committed. By the gates we are to understand the open space near the gates, where the judicial proceedings took place (cf. Nehemiah 8:1, Nehemiah 8:3; Job. Deu 29:7), the sentence itself being executed outside the town (cf. Deuteronomy 22:24; Acts 7:58; Hebrews 13:12), just as it had been outside the camp during the journey through the wilderness (Leviticus 24:14; Numbers 15:36), to indicate the exclusion of the criminal from the congregation, and from fellowship with God. The infliction of punishment in Deuteronomy 17:5. is like that prescribed in Deuteronomy 13:10-11, for those who tempted others to idolatry; with this exception, that the testimony of more than one witness was required before the sentence could be executed, and the witnesses were to be the first to lift up their hands against the criminal to stone him, that they might thereby give a practical proof of the truth of their statement, and their own firm conviction that the condemned was deserving of death, - "a rule which would naturally lead to the supposition that no man would come forward as a witness without the fullest certainty or the greatest depravity" (Schnell, das isr. Recht).

(Note: "He assigned this part to the witnesses, chiefly because there are so many whose tongue is so slippery, not to say good for nothing, that they would boldly strangle a man with their words, when they would not dare to touch him with one of their fingers. It was the best remedy, therefore, that could be tried for restraining such levity, to refuse to admit the testimony of any man who was not ready to execute judgment with his own hand" (Calvin).)

המּת (Deuteronomy 17:6), the man exposed to death, who was therefore really ipso facto already dead. "So shalt thou put the evil away," etc.: cf. Deuteronomy 13:6.

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