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The Ten Commandments Are Not Part of Our Secular Legal Heritage

Controversies over the display of the Ten Commandments on public property generally do not focus on religious issues. Religion advocates know well enough that display of a religious text on public property for purely religious reasons would be held to violate the principle of separation of church and state. More often, the justification is based on the supposed role of the Ten Commandments in the secular development of Western, and specifically American, legal principles. But did the Ten Commandments really play any role in the founding principles of our legal system?

If the Ten Commandments do in fact form part of our legal heritage, we should expect to find traces of them in the legal principles on which the United States was founded. This is fairly easy to test, by simply comparing the commandments to the founding principles set forth in the U.S. Constitution. When we do that, we find that there is no parallel whatsoever. No sign of the Ten Commandments can be found anywhere in the Constitution or its amendments. The obvious conclusion, then, is that the Ten Commandments do not form any part whatsoever of our legal heritage, and the secular argument for their display on public property is invalid.

The most commonly cited version of the Ten Commandments is found in Exodus chapter 20. Here is a summary of them, slightly paraphrased:

  1. You shall have no other gods before me.
  2. You shall not make for yourself a graven image, or any likeness of anything that is in heaven above or that is in the earth beneath, or that is in the water under the earth.
  3. You shall not take the name of the LORD your God in vain.
  4. Remember the sabbath day, to keep it holy. On the sabbath day you shall not do any work.
  5. Honor your father and your mother.
  6. You shall not kill.
  7. You shall not commit adultery.
  8. You shall not steal.
  9. You shall not bear false witness against your neighbor.
  10. You shall not covet your neighbor’s house, wife, manservant, maidservant, ox, donkey, or anything else belonging to your neighbor. (“Covet” means to desire or wish for.)

The first four commandments deal with religious requirements. Nowhere in the U.S. Constitution is there any requirement as to how many gods to worship, or how to worship them. In fact, the first amendment specifically prohibits any such law. There’s also nothing in the Constitution about working on the sabbath, although in the past there were state laws that restricted some forms of work and commercial activity on Sundays. These have, however, by and large disappeared in recent times. So these first four commandments, at least, are purely religious commandments, and do not have anything in common with the legal foundation of the United States, which is, and always has been, a secular state. The Constitution even specifies that “no religious Test shall ever be required as a Qualification to any Office or public Trust under the United States.” (Article VI)

Commandments 5 and 10 are perhaps good advice, but again they do not form the basis of any part of U.S. law. There is no legal requirement to honor one’s father and mother, nor is there any law against “coveting” anything that another person has. Indeed, the modern U.S. economy encourages and depends on excessive coveting of consumer goods. So here we have two more commandments that have no connection with the legal foundations of the United States.

At first glance the commandment against adultery appears to be an exception to this finding. After all, many states continue to have anti-adultery statutes on their books, although the criminal enforcement of these laws has become quite rare. However, a closer look shows us that the Old Testament basis for this offense differs markedly from the legal principles that underlie the modern version. In the Ten Commandments, adultery is not defined, but we find an elaboration in Leviticus 18:20 and 20:10. There we learn that adultery occurs when one man has sexual intercourse with another man’s wife. The punishment is death for both the adulterer and the adulteress. The legal principle involved is protection against the corruption of bloodlines, and the aggrieved husband is viewed as the victim. The adulterer’s wife was not considered to have any rights or interest in the matter. This was indeed the principle underlying adultery in early modern times as well, but it has given way to a different view in which adultery is now seen as a breach of the marriage vows between husband and wife, and either party may be the victim or perpetrator. “The law of husband and wife, borrowed virtually wholesale from English common law, has always included a duty of fidelity for both parties to a marriage.” (Grossman, Joanna. “Punishing Adultery in Virginia,” December 16, 2003 at writ.corporate.findlaw.com/grossman/20031216.html, emphasis added.) It is this kernel of equality before the law, present in the English common law, which has allowed the concept of adultery to morph from a gender-based offense protecting a husband’s property interest in his offspring, to an offense based on equal protection of both husband and wife under the terms of the marriage contract. And this equality of all individuals before the law, regardless of gender, class, or social status, is indeed one of the supreme principles on which our system of justice is based–in sharp contrast to the gender and class-based legal codes of the ancient middle east.

That leaves us with three remaining commandments to examine. The prohibitions against murder, theft, and false witness–being found almost universally throughout human society–are more accurately viewed as essential conditions for any society to survive and function than they are an inheritance from a specific culture such as ancient Israel. As the Roman emperor Julian phrased it over 1600 years ago, apart from the religious commandments, “what nation is there … which does not think that it ought to keep the other commandments? So much so that penalties have been ordained against those who transgress them, sometimes more severe, and sometimes similar to those enacted by Moses.” (Julian, “Against the Galileans” in The Works of the Emperor Julian, vol. 3, Harvard University Press, 1961, page 361)

Thus, six of the Ten Commandments have no connection at all to the foundations of U.S. law. One of the remaining four–the prohibition against adultery–is now based on very different legal grounds than the Old Testament version, and is rarely enforced in modern times. The remaining three are seen as universal norms of human society, no more traceable to the ancient Hebrews than to any other ancient society with prohibitions against murder, theft, and false accusations.

Other ancient legal codes, some of them older than the Old Testament, contain similar provisions. For example, the Code of Hammurabi, which predates by several centuries the writings of the Old Testament, contains prohibitions and penalties for false accusations, theft, adultery, and murder. Hammurabi’s code is broader than the Ten Commandments and Old Testament law, and contains additional provisions that are closer to our modern legal thinking than anything found in the Old Testament. For example, Hammurabi’s code contains provisions for protection of women’s property in cases of divorce, and also requires that business deals be supported by witnesses and contracts. Both of these concepts get no consideration from the Old Testament writers. Based on similarities to our modern system of justice, it would make more sense to post a copy of Hammurabi’s code in the courthouse square than to display the Ten Commandments. A good source for examining the relationship between Old Testament law and the code of Hammurabi, as well as other ancient eastern legal codes, is Hans Jochen Boecker, Law and the Administration of Justice in the Old Testament and Ancient East (Minneapolis: Augsburg Publishing House, 1980).

Not only are the Ten Commandments nowhere to be found in the founding legal principles of the United States, if we look beyond the Ten Commandments themselves, we find many examples of Old Testament laws that blatantly contradict modern notions of justice and decency. It is hardly credible to claim that the guiding principles of our modern societies are based on these cruel and primitive legal practices. For example, those who have served other gods shall be stoned to death, and the witnesses who have testified against the guilty party are expected to throw the first stone (Deuteronomy 17:2-7). If a man rapes a virgin who is betrothed to another man, and this occurs in a city, and if the woman does not cry for help, then both the man and the woman shall be stoned to death (Deuteronomy 22:23-24). The assumption is that the woman was a willing participant, since she did not cry out for help. If she had cried out, then someone would have come to her aid and prevented the rape. Happily, our own society has rejected this notion of blaming the victim for her own misfortune. Physical mutilation has long since been viewed as cruel and unusual punishment, which is expressly prohibited by our Constitution. But mutilation in the form of cutting off the hand is specifically decreed as a punishment in Deuteronomy 25:11. Mutilation still survives in some Muslim societies, who can much more plausibly be seen as the modern heirs to these ancient middle eastern legal practices.

The obvious conclusion is that the Ten Commandments of the Hebrew Bible do not form any part of our Western legal heritage. Four of the commandments deal with religious matters. Two are simply good advice. One–the prohibition against adultery–is based on entirely different legal principles than the modern version of the offense, and the remaining three–against murder, theft, and false accusations–are common to all societies. The argument that the Ten Commandments should be publicly displayed as a tribute to their role in the development of western legal principles is false and misleading, and is merely a stratagem for obtaining public support for the propagation of religious ideas.

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