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.
In a footnote Brink refers to several other references to capital punishment in the Old Testament for various different crimes.
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. 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.
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.” 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.” The laws “reflect the scribal compilers’ concern for perfect symmetry and delicious irony rather than the pragmatic experience of the law courts.” The method used in legal texts was “to set out principles by the use of often extreme examples.”
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.” 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.”
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”.
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.”
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.”
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.”
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. 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.” 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”.
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.
In my next post 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 (also recently raised by Mark V in the comments section).
 David O Brink “The Autonomy of Ethics” The Cambridge Companion to Atheism, ed Michael Martin (Cambridge :Cambridge University Press, 2007) 159.
 Ibid, note 17, 164.
 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.
 Code of Hammurabi, 195-196, also 199.
 Westbrook “The Character of Ancient Near Eastern Law,” 71-78.
 J. J. Finkelstein The Ox that Gored (Philadelphia: American Philosophical Society, 1981) 34-35.
 Joe M Sprinkle “The Interpretation of Exodus 21:22-25 (Lex Talonis) and Abortion,” Westminster Theological Journal 55 (1993) 241
 Finkelstein The Ox that Gored 35.
 Sprinkle “The Interpretation of Exodus” 238.
 Ibid, 233-53.
 Bernard Jackson. “The Problems of Exodus 21:22-25 (Ius Talionis),” Vetus Testamentum 23 (1973) 288-290.
 Num. 35:22.
 Jackson “The Problems of Exodus” 239.
 Walter Kaiser, “Gods Promise Plan and his Gracious Law,” Journal of the Evangelical Theological Society 35:3 (1992) 293.
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