Penal Sanctions in the Mosaic Law Part II

In Part I I suggested that the capital sanctions found in The Torah in most cases were not intended to be carried out, that instead there operated an implicit assumption that a person who committed a serious crime had forfeited their life and hence was to pay a ransom as decided by the courts as a substitute. One area where this claim seems to make particular sense is in the laws governing adultery that occur in the book of Deuteronomy.

In the article I cited in the previous post, David Brink, addresses Deuteronomy 22: 13-21. Brink claims this teaches “that the community can and should stone to death any women whose husband finds she was not a virgin on her wedding night.”

I’ll start with two minor points. First, Brink assumes that this is addressed to “the community,” by which I assume he means contemporary communities. This is false; it is addressed to ancient Israel’s community as any reading of the opening chapters of Deuteronomy clearly show. How The Mosaic Law relates to contemporary Christians is a detailed and vexed topic of biblical hermenutics yet Brink ignores the issues and simply assumes that it addresses us directly.

Second, this text deals with adultery and not pre-marital sex. As Gordon Wenham notes pre-marital sex is addressed a few lines later in Deuteronomy 22: 28-29.[1] Wenham notes that the case Brink cites (Dt 22:13-21) deals with adultery.[2] In ANE law, betrothal was considered a binding marriage; women were betrothed young and often some time before they consummated the marriage. This case deals with betrothed women who after betrothal and prior to consummation has sex with a third party. As I note in footnote 15, this is a minor point. I am sure Brink is not allayed by the fact that she is to be executed for adultery as opposed to pre-marital sex, his problem is clearly execution related; that said, it is important that one not exaggerate what the text says.

Third, as I argued in Part I, when The Torah prescribes that a person be executed, the implict assumption is that this will not be carried out but some lesser financial penalty will be inflicted as a ransom. This seems to be borne out by an examination of this law.

Brink refers to Deuteronomy 22:13-21, in particular “if … the charge is true and no proof of the girl’s virginity can be found … the men of her town shall stone her to death.” What Brink does not focus on is the sentence if the charges prove to be false; if the husband is simply slandering his bride. In this instance the husband suffers three penalties, first he is subjected to some unspecified punishment which would be at the discretion of the court. It is clear that this is not execution because the text assumes that he will continue to be married to the women in the future. Second the husband shall pay “100 shekels of silver” to the father and lose his right to divorce. Wenham explains the rationale for this price:

The husband claims that by giving him a dud wife (for his 50 shekels) his father in law had in effect stolen the sum from him. Two legal principles are therefore applicable those dealing with theft and false witness. The penalty for theft of deposited property is double restitution according to Ex xii7. But according to Deut xix19 and other ancient near eastern laws false witnesses were punished with the punishment the accused would have suffered if substantiated”[3]

This explains the 100 shekels; the problem is that it raises an issue which Wenham is aware of. “[A]ccording to Deut xix19 false witnesses were punished with the punishment the accused would have suffered if substantiated.” If this law meant that substantiation of the husband’s accusation would actually result in the execution of his wife then the failure to substantiate his claim would mean that the husband would be executed, but he is not. Apart from the fine to the father, his other punishment is an unspecified punishment (which is not execution) and loss of his right to divorce. It appears then that the actual execution of the woman was not envisaged. Wenham suggests then a substitute must have been envisaged in this text if it was to be read as coherent and consistent with the other laws in Deuteronomy.

This conclusion seems to be strengthened by several other passages that deal with the same topic. Two chapters later, Deuteronomy 24:1-5, The Torah deals with a case where a man divorces his wife, “who becomes displeasing to him because he finds something indecent about her.” This same passage is cited by Jesus in the synoptic gospels. David Instone-Brewer has argued, convincingly, that the reference to “something indecent” is interpreted by Christ as referring to adultery.[4] This passage then deals with the same situation as Deuteronomy 24; the text tells us she is divorced and by implication loses her mohar money but is silent on any other punishment. However, the woman is clearly not executed as she marries another man in v 2. This makes sense if the capital sanctions for adultery function as admonitory devices and in practice, a ransom was made as a substitute (possibly alongside a lesser sentence) but it does not make sense if a women who was discovered to have committed adultery by her husband was required to be executed.

A similar picture emerges in a second passage Wenham cites. In the book of proverbs the author warns his son about adultery and refers to the judicial consequences that will ensue if he does not heed this warning.[5] It is clear that a ransom substitute is envisaged, moreover, it suggests that if the husband refuses to accept a ransom payment the adulterer will suffer blows and disgrace, note that execution is not envisaged. In fact, the discussions in Proverbs suggest the consequences will be financial loss and social ostracism. This all makes sense on the hypothesis mentioned in Part I but does not make sense if adultery was in fact punished by death. Wenham notes this point and draws the conclusion that in Deuteronomy 22:13-21 the law envisaged a substitute.

In conclusion, sceptics like David Brink often cite passages like Deuteronomy 22:13-21 in horror to discredit Christianity. However, they erroneously assume superficial literalistic renditions of the passages in question. In this instance, the genre of the passage, in light of the common ANE legal practices and customs suggests that capital sanctions function as a kind of hyperbole and in practice a ransom was paid and the punishment mitigated.

This practice is implicitly assumed in many of the Old Testament laws about homicide. Reading it this way renders the laws in Deuteronomy consistent with each other and with the reference to adultery in the book of Proverbs. Further, it also coheres better with our moral intuitions in the way a literalistic reading does not.

In my final post in this series I will look at Brink’s response to the kind of argument I have advanced in this series and his appeal to dialectical equilibrium.

[1] In “Bethulah: A Girl of Marriageable Age,” Vetus Testamentum 22 (1972) 326-348, Gordon Wenham points out that the same law is also spelled out in Exodus 22:15 and it is treated as a relatively minor offense; the penalty is simply that the man must pay the “mohar” to the bride’s father. A mohar was security money (50 shekels) that the groom paid to the bride’s father. It was held in trust for the woman in case the man later abandoned her or divorced her without just cause. See the discussion in David Instone Brewer Divorce and Remarriage in the Bible: The Social and Literary Context (Grand Rapids: Eerdmans, 2002).
[2] Wenham “Bethulah: A Girl of Marriageable Age.”
[3] Ibid 332.
[4] Brewer Divorce and Remarriage in the Bible.
[5] Proverbs 6.

Cross Posted at MandM

7 replies
  1. Upandatom
    Upandatom says:

    So did the tribe(s) of Israel stone anyone to death because of adultery or pre-marital sex? If so, is this copatible with a god worthy of respect?

  2. Stuart001
    Stuart001 says:

    The burden of proof is on the objector to show that there is an incompatibility with (a) a person who gives commands and then sets punishment and (b) that same person being worthy of respect. I don't see how that can be done for God, since our notions of justice should come from the source of all justice.

  3. Upandatom
    Upandatom says:

    I completely agree Stuart. Christian morality is dogged by Divine Command Theory. Especially when – as you seem to be doing – people feel the need to defend the OT.It seems trivial to me that people were tortured to death under OT Law. Christians simply have to resort to Divine Command Theory. There is no other alternative, considering that (virtually) no present day christian would condone torturing people to death.

  4. Stuart001
    Stuart001 says:

    Hello UpandatomI don’t know what you mean my “Christian Morality” and I don’t know what you mean by “dogged.” Perhaps you mean to say that the preferred meta-ethical theory for Christians has generally been some variant of the Divine Command Theory, and that said Christians inevitably live and think consistently with that. In which case, I would agree and don’t see a problem.Also, my previous comment was neutral with respect to the defense of the Old Testament or any book therein contained, as well as to Divine Command Theory. I was merely pointing out we should begin with a God who is just, and take our notion of what justice is from him.

  5. Upandatom
    Upandatom says:

    Stuart,

    I was merely pointing out we should begin with a God who is just, and take our notion of what justice is from him.

    Yes, I think we are in agreement, Stuart. The above – the starting out with the belief that god is just – is Divine Command Theory: that which is right, is merely that which is Commanded from the Divine.To many people, though, a God who would demand the torturing of people for their sins is – well, not a god worthy of respect.I notice that even though I have directly asked whether the tribe of Israel did stone anyone to death for [sexual] sin, no one has answered – people are still cagey. I think that this is because the article here obfuscates people from having to confront the reality of the matter, which my question cuts straight to. I think a great number of christians would rethink large parts of their beliefs if they were forced to confront the reality of the barbarism of the old testament.

  6. TroyGeri
    TroyGeri says:

    "To many people, though, a God who would demand the torturing of people for their sins is – well, not a god worthy of respect."Jericho – Hell, which is what you are alluding to – was never created for people in the first place, it was created to punish satan. People send themselves to "this place" because they refuse to accept the place Jesus has gone to prepare for all those that love Him.. God is desperate to avoid this for everyone, so desparate He laid down His life for His enemies (you included Upandatom) – it is not His desire that even one should perish, but that all should come to repentance and eternal life.. the choice to come to Him must be freely made though.. Just like on earth when a law is broken, there is a penalty to be paid, so it is whn God's laws are broken, there is a penalty to pay, except in the latter case Jess willingly steps in to pay the penalty for all those that will put their trust in Him. So to say God demands the torturing of people for their sins is a obfuscation of the truth, rather He turns away those who have rejected His offer to bear the price of their iniquity (sins) for them and they must pay the price of breaking God's law themselves, but he joyfully accepts all that turn to Him in repentance..Did the tribe of Israel stone anyone to death for [sexual] sin?From the evidence presented it would seem those who were following the intent of the law as outlined in Deuteronomy, Exodus and elsewhere would not have executed people on the basis of those laws for sexual sin. This does not mean that those who sought to exploit the law for their own means didn't twist the law to mean something it wasn't intended to, in order to justify taking anothers life for their own benefit…

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