What Rights Get Wrong about Justice for Orphans: An Old Testament Challenge to a Modern Ideology

The Father’s House and a Place for Orphans

Yatom, ‘orphan’, is just as easily translated ‘fatherless’, and in an ancient context more accurately so. Consider, for example, its clarity in Lam. 5:3: ‘We have become orphans, fatherless; our mothers are like widows.’ Thus the ‘the quartet of the vulnerable’ to which Wolterstorff assigns the orphan is better understood as a ‘trio’, where the child and the mother are considered a unit of concern with the alien and the poor. ¹⁰ This is not only attested by the proximity of and causal dependence between orphan and widow language in biblical passages concerning justice, ¹¹ but it is also a motif widely attested in the ancient Near East. The Babylonian Laws of Hammurabi, for instance, list in the epilogue that one of its purposes is ‘to provide just ways for the waif and the widow’. ¹² In the Ugaritic Epic of Aqhat, the cultural hero Danel judges the cases of the widows and the orphans, whilst King Krt is chastised for having failed such an important duty. ¹³ Finally, many Egyptian pharaohs, such as Amenemhet, Rameses III and Mentuhotep, are depicted as protectors of widows and orphans. ¹⁴

Wolterstorff holds that the orphan and the widow, regardless of being a unit or not, are the subject of the prophets’ and psalmists’ concern because they are more often victims of injustice than others in society. The reason Wolterstorff offers for why the prophets and psalmists ‘see’ this injustice is that such awareness originates in Israel’s collective memory of once being in a vulnerable position in Egypt, a reality from which Yahweh delivered them. Israel’s writers are therefore calling for justice ‘as a public memorial of her deliverance’. ¹⁵ This assessment, though, is only half right. The prophets and psalmists do draw upon memory to plead for the orphan’s cause, but the memory is much more specific to orphans than simply the Exodus.

Uncovering such a memory, however, requires illuminating the orphan’s precarious position in ancient Israel and Judah, which is admittedly a complicated historical task. Suffice it to say, the biblical orphan is more dimensional than a socio-economic description, leaning closer to Dickens and Eliot rather than the UN Universal Declaration of Human Rights. ¹⁶ Such a task therefore requires the work of a few whose research into the complex social organism surrounding the ancient orphan has proven resilient.

Drawing from the archaeological work of A. Faust, S. Bunimovitz and S. Bendor, ¹⁷ W. J. Houston has insightfully argued that the injustices pressed upon ‘the fatherless’ in Israel began with the shift from villages to the urban conditions of the city. ¹⁸ In the village it appears ‘the fatherless’ would evade a precarious position for a few reasons. These villages were each occupied by one mishpachah, a word translated ‘family’ in the Bible but more properly understood as the larger ‘clan’. ¹⁹ The family as we would understand it was rather the beyt ʾav—‘father’s house’. ²⁰ In these families the generations did not leave, instead remaining part of a single extended unit in the large houses of villages and farmsteads. The beyt ʾav, then, was one among others within the mishpachah. ²¹ Significantly, certain elements characterising this form of family signal an egalitarian ethos. Consider, for example, the equal size, material quality, and placement of what Bunimovitz and Faust call ‘the four-room houses’. ²² This kind of house is what we might understand as both the location for and physical manifestation of the beyt ʾav. In Bunimovitz and Faust’s words, the house ‘conveyed a message to the outside community about the economic and social status of the household, sending signals about matters of social difference like affluence and taste. At the same time, it also seems to bear a message essential to supporting the egalitarian ideals of Israelite society as a whole’. ²³ Faust points to the equal division of land along with evidence that resources were shared as indicators that there was ‘a great deal of cooperation and equality’ among these families. ²⁴

As Bendor’s work has demonstrated, though, this egalitarian ethos should be understood as one among paternal heads of families within the clan. There was of course a deep hierarchical structure among the sons within the beyt ʾav, the eldest holding primacy. ²⁵ But in these large extended families, ‘the fatherless’ were still the grandchildren of the patriarch. Thus, as Houston rightly clarifies, their position may have been low in terms of internal familial structure, but they still remained within and part of that family. ²⁶ The reason why is best explained by the term ‘kinsman-redeemer’. Though some reduce this term to the Levirate marriage law of Deut. 25:5-6, it is better understood as a guiding ethic for life in the beyt ʾav. To redeem was a responsibility that extended to anyone in the father’s house. It was not just exclusive to caring for orphans and widows, but also meant redeeming land, daughters sold into slavery, and even avenging ‘the blood’ lost by the beyt ʾav. ²⁷ In this sense, then, it was its own justice system running on the primacy of family. It is what Houston calls, ‘the benevolent hierarchy’. ²⁸ Thus the beyt ʾav and its redemption ethos, enduring throughout the monarchy, provided the answer for orphans with kinship.

When urban conditions began to take hold as part of the wave of invasions that would form so much of Israel’s history, the beyt ʾav began to weaken under the pressures of change. The large farmsteads of Israelite villages gave way to smaller living units of the city with only room for the smaller, nuclear family. The nuclear families of orphans and their widow mothers, then, removed from the setting where the laws of kinship ruled, could arguably find themselves in a dangerous position. ²⁹ Though this change has a tendency to captivate some scholars as the single downfall of a ‘benevolent’ Israelite ethos, ³⁰ I do not agree that it happened that quickly.

The Patronage Economy and the Trouble with chesed

In addition to the Old Testament’s kinsman language, we also find language that reflects patronage as an economic system, and therein the idealisation of chesed, a troublesome term for rights-based justice. This is why, I believe, Wolterstorff manages to produce an entire chapter on justice in the Old Testament, but only engages the term chesed in a later chapter as it is used by Ramsey, who employs it too narrowly in the terms of neighbourly obligation. ³¹ Chesed’s relation to justice is far more complex than Ramsey and thereby Wolterstorff assume; and in being so it is a pebble in the shoe of any rights-based ideology. The reason for this is two-fold. First, chesed describes the benevolence intended in the decidedly hierarchical structure of a patronage economy, something almost sacrilegious to an understanding of justice as equality. ³² The patron–client relationship, as cultural anthropologists of the Mediterranean world outline, is one between persons of unequal ‘status’ in the economy; yet it is personal—built upon face-to-face contact and trust—and expressed in terms such as ‘love’, ‘faithfulness’, ‘goodness’ and ‘mercy’. ³³ In short, the patron–client relationship is described in the same manner as that of a parent and child. It is also the most often used term in the Old Testament to describe the relationship between God and God’s people. Second, chesed captures the ideal of charity and sympathy as part of an economic institution, something entirely contradictory to the rights-based dichotomy of an institution separate from personal motivation. Consider as a prime example of that dichotomy, Wolterstorff’s words:

It seems safe to infer that [the prophets] did not have to deal with the contention, common in present-day America, that it is the fault of the poor themselves that they are poor and that, accordingly, they have no right to aid. Apparently, they did not have to deal with the contention that such aid that comes their way is charity, not justice, for which the poor ought to be grateful. Israel’s writers sometimes describe help for the lowly as mercy; but the idea was not abroad that it is only a matter of mercy, not a matter of justice. ³⁴

But for a patronage economy using chesed to capture its ideal, justice is inseparable from charity or sympathy because the goods in exchange between patron and client are not the same as those envisioned in the society Wolterstorff presupposes. The patron gives grain and money, sustenance and protection, whilst the client offers in return a path to honour for the patron by thriving in shalom because of his charity. ³⁵ In this light, we may consider Job as an example of the idealised patron given his defence for a righteous life: ‘I delivered the poor who cried, and the orphan who had no helper. The blessing of the wretched came upon me, and I caused the widow’s heart to sing for joy’ (Job 29:12-13). The blessing of the wretched, to be sure, is not just a poetic turn of phrase within a patronage economy. When charity and sympathy are part of an economic institution, the ‘wretched’ are empowered with a blessing to give.

This was the ideal pictured for the patronage economy in an ancient Near Eastern city. The previous hierarchical relationship of redeemer and kin had begun to dissipate along with the beyt ʾav, so the orphans and widows who still needed support turned to these patron–client relationships. It is in this urban climate of unrelated people brought together to live outside of the web of their clans, that the prophets plead justice for orphans and the Deuteronomic laws are assembled on the orphans’ behalf. One can surmise from both the prophets’ cause and the laws written that the patronage economy did not always prove a good substitute for the wider web of the beyt ʾav.

A Failing Judicial System?

It is at this point that Wolterstorff’s argument takes issue with what appears to be a failing judicial system in the Old Testament, ³⁶ a view that finds credence in Isa. 10:1-2:

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!

By Wolterstorff’s account, this phrase tells us that ‘the orphans are preyed on by iniquitous decrees and oppressive statues’. ³⁷ But Wannenwetsch correctly draws this exegesis into question by pointing out that, in an accurate reading of this text, the prophet does not blame oppressive statutes, rather ‘those who make such oppressive statues’. ³⁸ Wannenwetsch argues that Wolterstorff’s interpretive misstep is a result of ‘how the idea of rights tends to obstruct personal agency and responsibility’. ³⁹ Though I agree with this in part, I would suggest that there are also a few highly questionable historical and theological assumptions at play which need to be addressed.

It might help here to start with the fact that nowhere in the Old Testament do we see language about legal guardianship among the texts concerning orphans. Actually, ‘guardianship’ does not appear as a term until 200 ce in the Mishnah, where the word is not even Hebrew but rather epitropos. ⁴⁰ What one can infer from this is that ancient Jewish society had no need for that word in an environment where the ties of family and communal organisation were so strong that there was not yet need for legal terms of obligation. We might consider as a good example the case of Tobit, who had become fatherless but was cared for by his father’s mother (Tob. 1:6-9). The formal laws of guardianship seem to only have been settled after the conquests of Alexander, where the erosion of the clans made it necessary to define the responsibility for orphans.

It should also be aired that, though at times the orphan’s position in society would be more precarious, it is not the case that the single motivating factor behind God’s favour for orphans was that they were the ‘lowest’ on an economic scale. Consider the practices assisting orphans in 2 Maccabees, or historically in Hellenistic times. Orphans and widows were allowed to store their movable wealth in the Temple for safekeeping. We have in 2 Maccabees a story of Heliodorus sent to inventory the treasury in the Temple and once realising its wealth, he orders its surrender to Seleucus. The response of the Jews is to funnel their outrage to God in prayer, after which the wealth of these orphans and widows is divinely protected by virtue of Heliodorus being struck with immanent disease. Thus we have an account of orphans and widows not only having wealth, but being defended by their community (2 Macc. 3:1-36).

The point here is that the setting of Isaiah before the court is not a setting before the state in the sense that this is an institution that is to provide legal guardianship for orphans. But Wolterstorff’s presentation of orphans as rights victims must interpret the court this way for the most effective case. As Wolterstorff insists, those who plead for orphans in the Old Testament ‘have in their view the collapse or perversion of the judicial system’: ‘upright judges … interpreting corrupt laws’. ⁴¹ His is a critique of the state—a system of laws that violate orphans’ rights.

Fundamental to that critique, though, is the need for the judicial decrees to be corrupt rather than for people to be refusing to carry out good laws. This is because Wolterstorff needs the laws to be wrong in order for rights to be inherent; and to claim that inherency as theistically grounded, he also needs those rights to be present before the Law is given to Israel in the Old Testament. Here is what I mean by that: Wolterstorff explains that the natural inherent rights to which he makes his appeal for justice are not conferred upon us by ‘some human agreement, some piece of human legislation’, or ‘some piece of divine legislation’. ⁴² Human beings have natural inherent rights, ‘on account of the worth of beings of their sort’. ⁴³ Thus, ‘there doesn’t have to be something else that confers those rights’. ⁴⁴ The idea informs his search through the Old Testament for a ‘primary justice’ that is without law. Canonically speaking, then, he seems to be pointing to inherent rights before the Law is conferred upon the people. Wolterstorff’s evidence for those rights having at least a pre-iterate presence in the Old Testament is what he calls the ‘deep structure’ underlying the prohibition against murder in Gen. 9:6: ‘Whoever sheds the blood of a human, by a human shall that person’s blood be shed; for in his own image God made humankind.’ This verse, he contends, is not based in the Law but ‘in the worth of the human being. All who bear God’s image possess an inherent right not to be murdered.’ ⁴⁵

As poetic as this is, it is misguided. One problem here, as O’Donovan has brought to light with respect to other parts of Scripture, is that English translations of the Bible have a way of forcing a ‘language of rights’ onto Hebrew words that cannot and should not hold that connotation. The result is an English Bible that seems to convey the kind of primary justice to which Wolterstorff refers. O’Donovan identifies, for instance, the use of ‘rights’ in Prov. 31:8-9 and Jer. 5:28, where the Hebrew noun is clearly singular. ⁴⁶ In fact he is correct to include Hebrew in the statement that ‘antiquity did not standardly use the noun “right” in the plural’. ⁴⁷ When it was the case, those ‘rights’, which O’Donovan identifies as mishpatim, were ‘not possessed by individual persons’. ⁴⁸ Wannenwetsch adds an important point with regard to mishpat specifically, which is that in Hebrew this word for justice ‘is used in an almost stubborn way in the form of an active or verbal noun … justice is something that is present only in the mode of being performed’. ⁴⁹ English translations, however, tend to change the active/verbal noun into an adjective (act justly, just laws), or a thing (bring justice, produce justice). I would add to these observations that assuming a ‘language of rights’ when reading the Old Testament tends to distort otherwise specific and contextual Hebrew concepts into universalised, abstract things. The ‘image of God’ is no exception. This is how best to explain Wolterstorff’s interpretation of ‘the image of God’ as the author’s universal indicator of every human being’s worth. That interpretation is only possible by reading the phrase within a rights vacuum given that, in Hebrew, ‘bearing the image’ only occurs elsewhere in the Old Testament as a language describing the relation of a child to a parent. ⁵⁰ Bearing the image of God, as it is conveyed in Hebrew, is thus a specific indicator of the right order of divine parentage. ⁵¹ As a parent speaking to a child, then, God’s statement in Gen. 9:6 is based in the familial terms of law and certainly right order.

One is in fact hard pressed to find a prohibition or an act of God in the Old Testament that is not harmonious with a law system assuming right order. ⁵² A relevant example is a story to which rights theorists so often appeal: the Exodus. It cannot be a coincidence that, if the appeal to justice is rights-based, interpreters will assume the height of justice in the story is expressed in the phrase ‘Let my people go’ (Exod. 5:1; 7:16; 8:1, 20; 9:1, 13; 10:3). In fact, many treat the verses to which this phrase belongs as consisting only of those four words. Once again, poetic but misguided. That verse continues on. The people of God are not let go because it is their right to live freely in the wilderness. They are let go because it will be the undoing of an ordered creation—as demonstrated with the plagues—for them to serve anyone other than Yahweh. The justice in their release is their return to right order: ‘Let my people go, so they can serve me’ (Exod. 7:16; 8:1, 20; 9:1, 13; 10:3). ⁵³ As Bernstein has argued, this story becomes very difficult to reconcile with a rights-as-justice reading when we take into account the many Egyptians who are killed, given that they too are human beings. ⁵⁴ Surely it is only in the terms of right order that we can recognise the chaos illustrated by deep waters swallowing an army and the dead bodies of every firstborn (Exod. 14:26-29; 12:29-30).

Bodies, for that matter—the most staunchly defended possessors of rights—are also described within the terms of right order in the Old Testament. ⁵⁵ Take as an example the language of left and right-handedness that pervades the biblical texts. The reason why the right is favoured—as it is in Ps. 110:1—and the left is held suspect—as it is in Judg. 3:15—is very difficult to explain in the terms of rights. These sides of the body are ‘realms’ that are not only referred to by the biblical prophets to convey their rhetoric of justice, but are still in many ways acknowledged today. ⁵⁶

The Torah’s Right-Order Laws

Granted, Wolterstorff concedes that there is not an explicit language of ‘rights’ in the Old Testament, but his reason for this is that the prophets and psalmists ‘assume it’. ⁵⁷ His major point of contention with the laws is that if they were effective then there would not be the ‘pervasive presence of social victims in Israel’s writings’. ⁵⁸ That presence, he contends, is not

typical right order talk. Social victims do not have the significance in right order thinking that Israel’s writers appear to give them. In right order thinking, victims point away from themselves and their plight to the fact that someone is not living up to his or her obligations. ⁵⁹

I will address this point in two parts. In the first I will review the Old Testament laws that specifically address the welfare of the orphan. In the second part, and to conclude this paper, I will offer my suggestion as to how the prophetic plea for orphans is indeed still ‘right-order talk’ and what we might draw from that today.

The Prophet’s Right-Order Pleas

So if the laws themselves appear to be good, why is the prophet addressing the court on behalf of the orphan? According to Houston, a reasonable theory might be found in Isa. 3:13-14, which condemns both the ziqne (elders) and the sarayw (chiefs or princes) ⁶⁷ :

The Lord rises to argue his case;

He stands to judge the peoples

The Lord enters into judgment

With the elders and princes of his people

It is you who have devoured the vineyard

The spoil of the poor is in your houses.

If we follow the hierarchical logic of a society in the ancient world, then those men who were once the paternal heads of families, elders of clans and leaders of village societies are now here in the court as the prophet’s audience. ⁶⁸ This could be what happened to these men who were once surrogate fathers to the fatherless and providers to the widows; this could be what they became in urban conditions without their extended families to look after. As Houston points out, some may well have abused the new setting to run from ties, and the mention of ‘nobles and officials’ in Nehemiah 5 seems to support the idea. ⁶⁹ Thus the audience is comprised of patrons and fathers who have forgotten their brothers’ children and their sons’ children under the burgeoning pressures of urban life and occupying sovereignties.

Against such a backdrop, the provisions of Deuteronomy were a necessary response to the loss of cohesion within Israel’s communal life. The reason why the prophetic call for justice for ‘the fatherless’ is so often directed at perversions among judges, officials and nobles has to do with those particular figures once being—by the nature of their fatherhood—the personal providers of the solidarity and charity now generally represented in laws. The demand of the prophets, then, is not for rights but for the right order in their society—when those elders are fathers again.

Conclusion: The Old Testament’s Right-Order Challenge

The purpose of this article was to challenge Wolterstorff’s rights-based reading of biblical orphans by suggesting that the biblical plea for orphans is one for solidarity steeped in the language of right order. The study on the beyt ʾav structure revealed that for a considerable period of time, the orphan was an issue solved by kinship. This solution proved so ingrained in Israelite society that strains of it remained in the entire history of the Old Testament. A turn to the patronage economy demonstrated that the hierarchical benevolence of chesed became an envisioned solution to the care of orphans. As it was made clear, their once set place in the clan became precarious in emerging urban conditions. A consideration of laws that Wolterstorff blames for the orphan’s plight revealed that their intent was more likely for the right-ordered recreation of familial bonds among urban citizens. Finally, an alternative suggestion was made for the court setting as a likely spot for an audience of patrons, elders and patriarchs who were once personally the answer for orphans.

For Christian ethicists, especially those grounded in a rights-based vision of justice, the Old Testament laws are so very often put on the receiving end of our criticism. But my point in producing this article is to show that, in the case of orphans, we are in a position of owing an explanation to the biblical past for what we’ve assumed defines their justice.

The question that the Old Testament raises to us is: To what family or parent will your orphans belong? The language of belonging in this way is not used with rights because rights are, in O’Neill’s words, ‘too closely linked to individualism in a more basic metaphysical sense: they are the rights of individual right-holders (subjective rights, rights of a subject), which they can press against others, or which can be pressed on their behalves’. ⁷⁰ Thus, the World Wide Orphan Foundation states their mission is ‘to transform the lives of orphaned children and help them to become healthy, independent, productive members of their communities and the world’. ⁷¹ Their cause in the current climate is commendable, but not in any of their literature is the language of belonging to a family. Orphans are rather ‘integrated’ into communities. Actually, in a rights paradigm, the justice envisioned for orphans has very little to do with them ever belonging. Rather their educated, productive lives can be achieved to the exclusion of ever having a family again.

This kind of rights utopia, though, seems to fall down in front of what would otherwise be a simple question in the right-order climate of the Old Testament. I would suggest the reason why is that the rights-based model fails to offer the only thing that defines an orphan’s justice: a parent. In a rights paradigm, one cannot say the orphan has a right to a parent because that person is also an individual right-holder. Thus the rights-based portrait of orphans receiving justice is of adults who received the goods they presumably would have had if parented. Consequently, we are presented with a portrait that bypasses what it cannot offer. Compare this to the laws and language from the Old Testament that I have surveyed above. If anything is present, it is the underlying insistence that justice for ‘the fatherless’ is in the form of a father and that every law and prophetic demand was made in that awareness.

Wolterstorff has, in response to his commentators, explored various implications that flow from an assertion of justice as inherent natural rights, especially in cases that challenge our current climate as much if not more than orphans. Given the purpose of this article has been to critique such an assertion on behalf of the right-order vision in the Old Testament, I am inclined to conclude with some implications of my own. One compelling case Wolterstorff has raised in his responses is that of a person with Alzheimer’s. As Wolterstorff explains, though such a person ‘no longer has the worth that accrues to those human beings who are capable of functioning as persons, she still has the worth of being loved by God’. ⁷² That worth is what grounds her justice, and in Wolterstorff’s words, ‘that justice consists of how we treat each other. Let me say it yet again: a right is a legitimate claim to the good of being treated a certain way by one’s fellows.’ ⁷³

If we move from the biblical vision of justice for the orphan that I have outlined, though, it exposes how a rights paradigm fails the Alzheimer’s patient. After all, it is not difficult to see how the Alzheimer’s patient is also an orphan: her parents have long died away, she digresses towards the most fragile moments of childhood, her home is often an institution, and her care a question of the state. In a rights paradigm, justice is the goods that honour the dignity of this person who has lived for decades. But the Old Testament would ask again: To what family will this orphan belong? And once again the language of rights cannot say that this semblance of an orphan has a right to a family because the people comprising it are right-holders as well.

For those who have sat with an Alzheimer’s patient in the last stages, though, and have witnessed her desire for intimacy and affection that rivals the needs of a small child, the language of belonging strikes at a kind of justice that rights are not capable of naming: Justice for this orphan is a family to hold her as she quietly fades away.