A Man's Will, Diatheke (Gal 3:15-17)

An illustration from the ordinary facts of society, as it existed in the Galatian cities, is here stated: “I speak after the manner of men”. The will (διαθήκη) of a human being is irrevocable when once duly executed: hence the Will of God, formally pledged to Abraham, that all nations should be blessed in his seed, i.e., in Christ, cannot be affected by the subsequent act of God executed centuries later, vis., the giving of the Law. The inheritance of blessing comes from the original Will, and cannot be affected by the subsequent Law.

The sense of Diatheke in this passage has been much debated; and many excellent scholars declare that it does not mean Will or Testament (as we have rendered it), but either denotes a Covenant, Bund in German (so Calvin, Beza, Flatt, Hilgenfeld, Meyer, Lightfoot), or has the more vague and general sense of Determination, Willensverfügung or Bestimmung (so Zöckler, Philippi, Lipsius, Hofmann, Schott, Winer).1

The question as to the sense of the Greek word Diatheke in this passage must be carefully distinguished from the far more important question as to its general Biblical meaning. Here the word is used in allusion to every-day life among ordinary men. The Biblical usage is a different topic, and will be treated in the following sections. The commentators have not been sufficiently careful to keep those two questions separate from one another. That the word must in this passage be taken in the technical sense of Will is shown by the following reasons.

In the first place the Diatheke is proved to indicate a Will by the fact that an inheritance, κληρονομία, is determined by it, Gal 3:18.

Secondly, Paul says that he is speaking “after the manner of men,” Gal 3:15. He therefore is employing the word in the sense in which it was commonly used as part of the ordinary life of the cities of the East. What this sense was there can be no doubt. The word is often found in the inscriptions, and always in the same sense which it bears in the classical Greek writers, Will or Testament.

But, if Paul is speaking about a Will, how can he say that, after it is once made, it is irrevocable? It is this difficulty that has made the commentators on this passage reject almost unanimously the sense of Will. They do not try to determine what was the nature of a Will among the Galatians, but assume that an ancient Will was pretty much of the same nature as a modern Will. Our procedure must be very different. We have to take the word Diatheke in its ordinary sense “after the manner of men”: then we observe what is the character attributed by Paul to the Galatian Will: finally we investigate what relation the Galatian Will bears to the known classes of Will in other ancient nations, and so determine its origin.

In Hellenised Asia Minor, at the time when Paul was writing, the Diatheke or Will was a provision to maintain the continuity of the family with its religious obligations; and, though it included bequests of money to the State or to individuals, these bequests seem to be always regarded in the light of provisions for the honour and privileges of the testator and his family.

It is here plainly stated that when the Will has been properly executed with all legal formalities, no person can make it ineffective or add any further clause or conditions. It is not a correct explanation to say that “no person” means “no other,” for the argument is that a subsequent document executed by the same person does not invalidate the former. We are confronted with a legal idea that the duly executed Will cannot be revoked by a subsequent act of the testator.

Such irrevocability was a characteristic feature of Greek law, according to which an heir outside the family must be adopted into the family; and the adoption was the Will-making. Galatian procedure, evidently, was similar. The appointment of an heir was the adoption of a son, and was final and irrevocable. The testator, after adopting his heir, could not subsequently take away from him his share in the inheritance or impose new conditions on his succession.

That is a totally different conception of a Will from our modern ideas. We think of a Will as secret and inoperative during the life-time of the testator, as revocable by him at pleasure, and as executed by him only with a view to his own death. A Will of that kind could have no application to God, and no such analogy could have been used by Paul. But the Galatian Will, like God’s Word, is irrevocable and unalterable; it comes into operation as soon as the conditions are performed by the heir; it is public and open.

Such also was the original Roman Will;2 but that kind of Will had become obsolete in Roman law. It could have been familiar to no one except a legal antiquary; and neither Paul nor any other Provincial is likely to have known anything about that ancient Roman idea. In Rome a highly developed and simple form of Will, called the Praetorian Testament, had become usual; and it was secret and revocable, and took effect only after the testator’s death. But Greek law retained that ancient character much longer, and in regard to Wills, Galatian law was evidently of kindred spirit to Greek law and unlike Roman, just as we found to be the case in regard to adoption and heirship, § XXXI.

The exact sense of Gal 3:15 must be observed. Paul does not say that a supplementary Will (ἐπιδιαθήκη) cannot be made; but that the new Will cannot interfere with or invalidate the old Will. Nature may necessitate changes in the details of the first Will: new children and heirs may be born, and so on. A man can even adopt a second son and heir by a subsequent Will. Then the two adopted sons jointly carry on the family in its religious and social aspect. Inheritance was not simply a claim to property, as we now regard it. Inheritance was the right to take the father’s place in all his relations to the gods and the State; and two or more sons can take the father’s place jointly, each being heir. But in essence the second Will must confirm the original Will, and cannot revoke or add essentially novel conditions. One example of such a supplementary Greek Will (ἐπιδιαθήκη) is known:3 it confirms and repeats the original Will.

The Roman-Syrian Law-Book — which we have already quoted as an authority for the kind of legal ideas and customs that obtained in an Eastern Province, where a formerly prevalent Greek law had persisted under the Roman Empire — well illustrates this passage of the Epistle.4 It actually lays down the principle that a man can never put away an adopted son, and that he cannot put away a real son without good ground. It is remarkable that the adopted son should have a stronger position than the son by birth; yet it was so. Mitteis illustrates this by a passage of Lucian,5 where a son, who had been put away by his father, then restored to favour, and then put away a second time, complains that this second rejection is illegal, inasmuch as his restoration to favour put him on a level with an adopted son, who cannot be turned away in that fashion.

In the Gortynian procedure, this principle of the Greek law was relaxed, and the adoptive father could put away his adoptive son by a public act, declared from the stone in the market-place before the assembled citizens, but he must give him two staters as a guest-gift. Evidently the gift is a sort of substitute for the inheritance; the adopted son had an indefeasible claim to share the property, and by a legal fiction, the testator gives him his inheritance and sends him away.

The adopted son and heir was adopted by the will and authority of the whole community, to keep up the existence of one of the families constituting the community. The father, therefore, had less power over the adopted son than over the born son; the latter was subject to his solitary will, the former had the will of the whole community on his side.

When διαθήκη is understood thus, the paragraph becomes full of meaning; but this sense could hardly have existed except in a country where Greek law had been established for some considerable time. In Asia Minor or Syria the Will could only be of the Greek or the Roman type; there was no third type, for in no other land had a legal doctrine of Wills been elaborated. As the Galatian Will is unlike the Roman and like the Greek, it is clear that Greek law must have been established among the people to whom Paul was writing.

To make this subject clear, we must look at the use of διαθήκη in Epistles addressed to readers among whom Greek law had never exercised much, if any, influence, and to whom the Will of the Roman type, as current in the first century, alone was likely to be known. This requires a special chapter, and some account of the Biblical use of the term Diatheke.

The expression6 in Gal 3:15, “when it hath been confirmed,” must also be observed. Every Will had to be passed through the Record Office of the city. It was not regarded in the Greek law as a purely private document, which might be kept anywhere and produced when the testator died. It must be deposited, either in original or in a properly certified copy, in the Record Office; and the officials there were bound to satisfy themselves that it was a properly valid document before they accepted it. If there was an earlier will, the later must not be accepted, unless it was found not to interfere with the preceding one.

That is a Greek, not a Roman custom. There was no such provision needed in Roman law, for the developed Roman Will7 might be revoked and changed as often as the testator chose; and the latest Will cancelled all others.

The passing through the Record Office took the place of the primitive custom that the Will and Adoption must be made before the whole people in the public assembly.8 “In the Record Office were preserved public documents of all kinds, as well as copies of important private documents, title-deeds, wills, records of the sale of real property, mortgages, loans, etc. Before a copy of any such deed was accepted in the office, its legality and validity were verified; and thus the official in charge of the office played an important part in the business of the city. The existence of a certified copy of a deed in the Record Office was accepted as proof of legal right; and this simple guarantee facilitated the borrowing of money on the security of property, besides making the transfer of property and the verification of titles very simple.”9

In Gal 3:16 Christ is called “the seed,” i.e., the true seed in contrast to other seed, and we note that the preference of the “true seed,” and the superior right of the “true seed” to inherit, is characteristic both of Greek thought and philosophy in general, and in particular of the late Syrian law (which we take to be a survival of Seleucid law analogous to that which prevailed in South Galatia)10. The late Roman-Syrian Law-Book, which has already been so often quoted in these pages, justifies the preference of the male descendents over the female11 in the same degree on the ground that the former are “sought after by the laws as the true seed”.12 It is not to be supposed that Paul refers to that precise doctrine; but, when he distinguishes between seed, and distinguishes one seed as the seed, more fully entitled to possession of the inheritance than other seed in the same line and degree of descent, he is using a kind of distinction which was customary in Greek thought centuries before and centuries after the time when he wrote.13

[1] Zöckler’s statistics.

[2] Maine, Ancient Law, ch. VI.

[3] Grenfell, Alexandrian Erotic Papyrus, No. 21.

[4] The following remarks are taken from Mitteis’ Reichsrecht und Volksrechi, p. 213 ff., who does not notice the confirmation by Paul’s words of the view which he states.

[5] Lucian, Abdic., 12.

[6] κεκυρωμένην διαθήκην.

[7] See p. 366.

[8] Compare also the statements in Greek Egyptian Wills that the Will was executed ἐν ἀγυιᾶι or ἐπὶ ἀγορανόμου: see next Section.

[9] Cities and Bish. of Phrygia, II, p. 368 f., and authorities there quoted.

[10] See p. 374 f, 393.

[11] See p. 367.

[12] Die Gesetze suchen den reinen Santen heraus: Rüm-Syrisches Rechtsbuch, German translation p. 4.

[13] Mitteis, Reichsrecht, p. 326.