At the end of the wilderness period when the generation that had been Egyptian slaves had passed, God replaced Moses with Joshua who was to be a military commander for the invasion of Canaan. The nation was united in purpose and simply needed a strategic head for the conquest.
Once the conquest had run its course and Israel had settled into the tribal land allotments, governance devolved to tribal elders and judges. That would have been a continuation of the system in the wilderness.
During the wilderness years, Moses was initially the only point of contact between the people and God’s law. That was obviously unsustainable – one man cannot personally judge a couple of million people. This came to a head in Exodus 18 when Moses’ father in law came to visit and saw Moses sitting before lines of people the whole day. Jethro suggested that Moses appoint tribal leaders to handle routine matters and only elevate new or very difficult situations to Moses himself.
Now obey my voice; I will give you advice, and God be with you! You shall represent the people before God and bring their cases to God, and you shall warn them about the statutes and the laws, and make them know the way in which they must walk and what they must do. Moreover, look for able men from all the people, men who fear God, who are trustworthy and hate a bribe, and place such men over the people as chiefs of thousands, of hundreds, of fifties, and of tens. And let them judge the people at all times. Every great matter they shall bring to you, but any small matter they shall decide themselves. So it will be easier for you, and they will bear the burden with you. If you do this, God will direct you, you will be able to endure, and all this people also will go to their place in peace.” (Ex 18:19-23)
In the Torah there are specific instructions for judges in handling disputes or criminal behavior. In addition to admonitions not to show favoritism and not to take bribes, there are specific statutes as to witness requirements and restitution for torts. In cases where restitution is appropriate and the amount is not specified the Torah three times (Ex 21:23, Lev 24:19 and Dt 19:21) enjoins proportional recompense.
“When men strive together and hit a pregnant woman, so that her children come out, but there is no harm, the one who hit her shall surely be fined, as the woman’s husband shall impose on him, and he shall pay as the judges determine. But if there is harm, then you shall pay life for life, eye for eye, tooth for tooth, hand for hand, foot for foot, burn for burn, wound for wound, stripe for stripe. (Ex 21:22-25)
Contrary to what some believe, these passages are not intended to blind or maim the wrong doer. Rather they say that the punishment must be proportional to the injury. In other words, if two men fight and one is blinded it would be inappropriate to stone the other to death. Further, according to rabbinic sources the one who blinded the other would not himself be blinded. Rather, he would compensate the injured party for his loss.
After the death of Joshua, judges also served as a central point to rally the tribes against foreign invaders. During the period before Israel asked for a king, judges were often either selected by God (Gideon, Samson) or had a prophetic connection (Debora, Gideon).
Later, in Numbers 18 when the people complained that they were tired of eating manna, Moses’s frustration boiled over and he complained to God that the burden of leadership was too great for him. At that point seventy elders were chosen and God placed His Spirit upon them as well.
Then the Lord said to Moses, “Gather for me seventy men of the elders of Israel, whom you know to be the elders of the people and officers over them, and bring them to the tent of meeting, and let them take their stand there with you. And I will come down and talk with you there. And I will take some of the Spirit that is on you and put it on them, and they shall bear the burden of the people with you, so that you may not bear it yourself alone. (Nu 11:16-17)
Thus, as they settled in the Land, Israel had a functioning administrative and legal system as well as connections to God.
Why is this step in Israel’s history important to liberty? As mentioned earlier, all human societies develop rules and laws as well as ways to enforce them. In this, Israel was only unique in that the framework and model statutes were provided by God instead of being imposed by the powerful. Since God is concerned with liberty and justice as well as with order, many of His laws explicitly impose limits on what the powerful can do.
In several places God cautions that Israel is not to oppress the fatherless, the widow, or the stranger living among them.
“You shall not wrong a sojourner or oppress him, for you were sojourners in the land of Egypt. You shall not mistreat any widow or fatherless child. If you do mistreat them, and they cry out to me, I will surely hear their cry, and my wrath will burn, and I will kill you with the sword, and your wives shall become widows and your children fatherless. (Ex 22:21-24)
In a tribal society these represent the weak. The orphan has no family to protect him. The widow has no husband to do the same. The stranger has no supporting tribal structure. In a wicked society each of these could be taken advantage of or treated unjustly and would have no recourse. Hence, God said that He Himself would hear their cries and would respond. God also enjoins judges to be especially scrupulous with any case involving the fatherless, the widow, or the sojourner.
Setting aside the problem of corrupt or activist judges, a tribal and judicial system of governance provides the highest possible degree of liberty. As long as one can get along with his neighbor, a judge would have no interest in his activities.
The Biblical book of Judges closes with: “In those days there was no king in Israel: every man did that which was right in his own eyes.” Since that book chronicles the spiritual ebb and flow of Israel; descending into idolatry, becoming oppressed by her neighbors, and deliverance by a judge; most commentators view the period negatively. The whole purpose of liberty, however, is to have the freedom to “do what is right in one’s own eyes” and live with the consequences. The giving of the Torah can be viewed as God’s merciful warning that many of the desires of the heart are actually harmful.
As an example, if one has enough money and good health insurance, he can learn to drive a car by trial and error. That method, however, is at best suboptimal and at worst fatal. In today’s society we compel a novice driver to take lessons and drive with an experienced driver for some period of time. At the end of the probation period, the novice is required to take a test to prove his competence. In other words, the novice driver’s liberty is limited for both his safety and that of others on the road.
While the driving example is a benign limitation on liberty, it is not the way God does things. In God’s economy, He simply gives us His laws and His wisdom and lets us go. Thus, the equivalent Torah example would be the case where a man is chopping wood and his ax head flies off and kills someone. (Dt 19:5) God does not prescribe wood cutting classes, nor does He limit axes to licensed lumberjacks. He simply indicates that one has a duty, when doing something potentially dangerous, to ensure that his equipment is in good shape and that it is used responsibly.
He tells us that there are blessings (things will go well) and curses (the opposite) depending on our behavior. Sometimes these are simply the way His world works, but other times, He takes a hand. For example, when Israel followed strange gods, He would let them go for a time and live with the consequences. After a while, however, He would send a judge to clean things up or He would send a foreign invader to take them into exile.
God’s reaction when Israel finally asked for a king is instructive:
And the Lord said to Samuel, “Obey the voice of the people in all that they say to you, for they have not rejected you, but they have rejected me from being king over them. According to all the deeds that they have done, from the day I brought them up out of Egypt even to this day, forsaking me and serving other gods, so they are also doing to you. Now then, obey their voice; only you shall solemnly warn them and show them the ways of the king who shall reign over them.” (1 Sa 8:7-9)
In other words, God regarded the establishment of a monarchy as a step backwards and away from liberty.