Are Christians hypocritical to support the death penalty?

In a previous post on abortion on my own blog, a reader named Matthew Lee raised the issue of how many pro-abortion advocates bring up the death penalty. By doing so, they hope to show that Christians are inconsistent in saying we should never take human life.

Now, in one sense I think this is a non-issue. The objection doesn’t really get off the ground for at least two reasons:

  1. Even if Christians are inconsistent here, that doesn’t make them wrong to oppose abortion. Perhaps they are simply wrong to support the death penalty. So that doesn’t defuse the pro-life argument.
  2. The objection relies on a fallacy. Christians are concerned with unjustly taking a human life. But the death penalty is the taking of a human life precisely because justice demands it. So the objection trades on a pretty flagrant category error.

So this objection doesn’t do anything to shift the burden of proof away from the person arguing for abortion. But still, the death penalty is a pretty important topic, so Christians should have an answer to that. Click here to see how I address the question →

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

Penal Sanctions in the Mosaic Law Part I

In my recent debate with Raymond Bradley I questioned Ray’s understanding of the death penalty in the Old Testament. Since then a few people have asked me to explain and elaborate on my position. This three-part series is a response to some issues within secular ethicist and philosopher David Brink’s article “The Autonomy of Ethics” in The Cambridge Companion to Atheism, which I wrote last year. Brink’s position is similar to Ray’s so this series should explain my position further.

In “The Autonomy of Ethics,” David Brink writes that a literal reading of the Old Testament,

[Y]ields problematic moral claims, such as Deuteronomy’s claims that parents can and should stone to death rebellious children (21:18-21) and that the community can and should stone to death any wife whose husband discovers that she was not a virgin when he married her (22:13-21). We have more reason to accept secular scientific and moral claims than we do to accept a literal reading of these particular religious texts.[1]

In a footnote Brink refers to several other references to capital punishment in the Old Testament for various different crimes.[2]

I respect Brink’s stature as an ethicist, however, as an interpreter of scripture his work has left a lot to be desired. That said, I find the kind of hermeneutics he employs common in sceptical literature, so I will address what he says here.

One principle of interpreting literature is to interpret a text according to its genre. One does not read poetry, for example as science or scientific theorems as songs or math texts as romantic fiction. The book of Deuteronomy, in terms of its structure, literary form and language, parallels the structure and language of Ancient Near Eastern (ANE) legal texts. Many of the cases given are similar to the cases and laws in these texts. As such, this raises the issue as to how references to capital punishment function in such texts.

In a study of ANE legal corpus, Raymond Westbrook notes that seemingly harsh penalties are common in such codes. In old Babylonian law, the hand that assaults is severed; a man who kisses another’s wife has his lips cut off; a person who steals bees is to be stung by bees; a person who had thrown his victim into an oven was to be thrown into an oven; a man who raped another’s wife would be sentenced to having his own wife or daughter raped; a negligent builder whose house collapsed and killed another’s son would be sentenced to having his own son killed, and so on.[3] In fact, the Code of Hammurabi states that if a man knocks out the eye of one of the upper classes, his eye must be knocked out.[4]

Not only are these punishments harsh but they both appear inconsistent with the legal practice that occurred in these cultures and also with themselves in some instances. Westbrook notes “[s]ome law codes impose physical punishments and others payments for the same offenses, while some codes have a mixture of the two.”[5] Westbrook notes that the contradiction is only apparent because “in highlighting one or the other alternative, the codes are making a statement as to their view of the gravity of the offence.”[6] The laws “reflect the scribal compilers’ concern for perfect symmetry and delicious irony rather than the pragmatic experience of the law courts.”[7] The method used in legal texts was “to set out principles by the use of often extreme examples.”[8]

Westbrook points to the practice of “ransoming” as providing an explanation of how this worked in application. In ANE legal practice a person who committed a serious crime would be considered to have forfeited their life or limb, this, however, did not mean they were executed or mutilated. Instead they could ransom their life or limb by making a monetary payment and/or agreeing to some lesser penalty, usually decided by the courts. This background was implicitly accepted and understood to apply.

Westbrook is not eccentric in this view. J J Finkelstein makes a similar point reflecting on what appears to be very harsh capital (and sometimes vicarious) sentences in the code of Hammurabi and the absurdity and impossibility of putting them into practice. As Finkelstein notes, one law which states that a physician whose patient dies in surgery or is blinded by surgery is to have his hand cut off. Finkelstein remarks that “it is inconceivable that any sane person in ancient Mesopotamia would have been willing to enter the surgeon’s profession if such a law were literally enforced.”[9] On the other hand, “if a system of ransom were assumed where the life of the builder or his son could be redeemed and the hand of the physician could be redeemed by pecuniary ransom, these laws would not only have an admonitory function (for which the more graphic statement of the penalty–execution or mutilation–is more effective), but would also be practical as law.”[10]

He concludes that Mesopotamian penalty prescriptions,

[W]ere not meant to be complied with literally even when they were first drawn up, [But rather they] serve an admonitory function. If one would be bold enough to restate Hammurabi’s 230 as a direct admonition it might run to this effect: “woe to the contractor who undertakes construction and in his greed cuts corners”.[11]

Interestingly many commentators of The Torah have noted it appears to operate with the same assumption. This is particularly evident with the laws regarding homicide. Ex 21: 29-32 deals with a case where an ox gores another person to death due to negligence on the part of the owner. The penalty stated is that the negligent person shall be put to death. However, immediately preceding this, provision is made for a monetary fine to be paid instead of execution. Joe Sprinkle comments,

[V] 29 applies the principle of [life for life], a man whose negligence has caused the loss of a life forfeits his own life. But v. 30 goes on to show that this operates within a system that permits a payment of money to take the place of the actual execution of the offender.”[12]

Sprinkle goes on to conclude, “In sum, there is good reason to suppose that the death sentence of v. 29 is mostly hyperbole to underscore the seriousness of negligence which threatens the life of another human being.”[13]

A second example cited by Sprinkle occurs in the book of Kings. Here an incident is mentioned where a person has committed a capital crime. The sentence is announced “a life for a life”; however, the immediate context shows what this sentence was. “It will be your life for his life or you must weigh out a talent of silver.” Sprinkle notes that here again “’life for life’ in the sense of capital punishment has an explicit alternative of monetary substitution.”[14]

Perhaps the clearest example is on noted by Walter Kaiser. In Exodus 21:13-14 the law clearly distinguishes between accidental and premeditated homicide. If a man who has struck another and killed that person (an analogous case to a man striking a woman and killing her) seeks sanctuary, he is to be provided it unless he “lay in wait” for his victim. Jackson notes that “lay in wait” referred to premeditated homicide.[15] In Numbers 35 the same law is expounded in more detail; a homicide where a person “lay in wait” is contrasted with a homicide where the assailant “attacked him suddenly without enmity.”[16] This appears to be a reference to an intentional but not premeditated attack such as a ‘crime of passion.’

After laying out clearly and repeatedly that the a person who kills in pre-meditation “shall surely be put to death” the text goes on to state “’Do not accept a ransom for the life of a murderer, who deserves to die. He must surely be put to death… .” Bloodshed pollutes the land, and atonement cannot be made for the land on which blood has been shed, except by the blood of the one who shed it.” Unless there was an assumed practice of “ransoming” the lives of those under a capital sentence, this comment seems superfluous. Sprinkle notes “The availability of ransom seems to have been so prevalent that when biblical law wants to exclude it, as in the case of intentional murder, it must specifically prohibit it”.[17]

In, Towards an Old Testament Ethics, Walter Kaiser draws the same conclusion,

The key text in this discussion is Num 35:31: “Do not accept a ransom [or substitute] for the life of a murderer, who deserves to die. He must surely be put to death.” There were some sixteen crimes that called for the death penalty in the OT…. Only in the case of premeditated murder did the text say that the officials in Israel were forbidden to take a “ransom” or a “substitute”. This has widely been interpreted to imply that in all the other fifteen cases the judges could commute the crimes deserving of capital punishment by designating a “ransom” or “substitute”. In that case the death penalty served to mark the seriousness of the crime.[18]

In Part II I will argue that this understanding of the references to capital punishment in The Torah makes best sense of the laws regarding adultery that Brink cites.

[1] David Brink “The Autonomy of Ethics” The Cambridge Companion to Atheism, ed Michael Martin (Cambridge :Cambridge University Press, 2007) 159.
[2] Ibid, note 17, 164.
[3] See Raymond Westbrook, “The Character of Ancient Near Eastern Law,” in A History of Ancient Near Eastern Law, Vol. 1, ed. Raymond Westbrook (Boston: Brill Academic Publishers, 2003) 74.
[4] Code of Hammurabi, 195-196, also 199.
[5] Westbrook “The Character of Ancient Near Eastern Law,” 71-78.
[6] Ibid.
[7] Ibid.
[8] Ibid.
[9] J. J. Finkelstein The Ox that Gored (Philadelphia: American Philosophical Society, 1981) 34-35.
[10] Joe Sprinkle “The Interpretation of Exodus 21:22-25 (Lex Talonis) and Abortion,” Westminster Theological Journal 55 (1993) 241
[11] Finkelstein The Ox that Gored 35.
[12] Sprinkle “The Interpretation of Exodus” 238.
[13] Ibid.
[14] Ibid, 233-53.
[15] Bernard Jackson. “The Problems of Exodus 21:22-25 (Ius Talionis),” Vetus Testamentum 23 (1973) 288-290.
[16] Num. 35:22.
[17] Jackson “The Problems of Exodus” 239.
[18] Walter Kaiser, “Gods Promise Plan and his Gracious Law,” Journal of the Evangelical Theological Society 35:3 (1992) 293.

Cross Posted at MandM