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Capital Punishment in the Old Testament: 2

January 27th, 2009 by Matt

In Capital Punishment in the Old Testament: 1 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 1 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. Further, reading it this way renders the laws in Deuteronomy consistent with each other and with the reference to adultery in the book of Proverbs. I will add finally, that it also coheres better with our moral intuitions in the way a literalistic reading does not.

[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.


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Capital Punishment in the Old Testament: 1

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  • I agree that at times the death penalty could be exchanged for a fine, but that the death penalty was given as the “documented punishment” suggests that it was an appropriate punishment for the crime. Talion gives appropriate but also maximum penalties. Exchange for a fine may allow the offended to offer mercy but the offender still receives some punishment.

    The comment about murderers not being able to trade execution for a fine would then be saying that mercy is not able to be given for murder (Deut 19).

    And we see in the pentateuch that people were put to death for blaspheming Yahweh and collecting wood on the Sabbath (an issue of rebellion).

    While I agree that this is written for the Israelites (though it is still instructive for us), the argument against capital punishment is because men see punishment as immoral yet they view sin very lightly. Adultery for example is extremely destructive for individuals and society. I don’t see execution as necessarily an excessive punishment.

    I am not certain the false witness condition applies to a deflowered bride. False witnesses experience the punishment because the do so knowingly, ie they know they are lying and that the accused will get such punishment. A husband doesn’t know, he suspects. If his suspicions are correct the punishment happens, if he is incorrect he suffers, but not to the same degree because of the absence of intentional deceit.

  • It seems to me like there are two ideas in tension here:
    1 penal or punative ethics, and
    2 restitution

    The idea that we need to ‘punish’ those who do ‘wrongs’ leads to a system of offences and punishments, and enforcement to catch wrongdoers, courts to try them and punishers to inflict the punishment.

    The idea of restitution is that right and wrong, in itself, does not justify any penalty or remedy: something must not only be wrong, it must cause someone else a loss as well. The remedy for the wrong is for the wrongdoer to pay restitution to the damaged party in the amount of the loss, or, in exceptional cases, additional damages. The outworking of this ethic does not require police (the damaged parties seek any remedies they believe they have that are worth chasing) or jails, but does require access to judicial services and to debt collection services.

    To me it seems like the Hewbrew legal system was primarily functioned as a restitutionary system: without loss resulting, most wrongs were without penalty, either through lack of enforcement (no police force and no victim mean no case to answer), or lack of any institutionalised system of punishment (no jails), and as Matt points out, no significant use of capital punishment either.

  • FFoB 15: The dangers of female wrestling…

    Studies have revealed that most of the physical punishments of the OT laws can be mitigated using monetary compensation. You can check out a common and well detailed understanding I found online here and here….

  • Numbers 15.35 tell us a story that God commanded execution by stoning for a man gathering sticks! This passage clearly contradicts your apologetics.

    Apparently, God is not satisfied to condemn someone to death for gathering sticks. It should be death by stoning, a very cruel method of death execution.

    If someone doubts that stoning is cruel, I suggest to watch this video of an actual execution by stoning accomplished by muslins: http://www.apostatesofislam.com/media/stoning.htm

    I think this passage clearly teaches a morally evil lesson. This is one of the passages that made me abandon the doctrine of infability of scriptures.

  • Wagner, Numbers 15 does not clearly contradict my apologetics, and the position I put forward is not apologetics its actually defended by several leading OT scholars and scholars of ANE legal texts as I pointed out.

    First, Exodus 21:27-29 and Numbers 35:30-31 quite clearly assume that a practice of substituting capital sentences for a monetary fine. They make no sense unless this is the case. ANE scholars tell us this was the general practice in ANE legal proceedings, and the laws did not function the way athiest critics assume, these are facts. I see you have not disputed or addressed these points.

    Turning to the text you cite Numbers 15, this is actually compatible with what I said, the text in Numbers states.
    “32 While the Israelites were in the desert, a man was found gathering wood on the Sabbath day. 33 Those who found him gathering wood brought him to Moses and Aaron and the whole assembly, 34 and they kept him in custody, because it was not clear what should be done to him. 35 Then the LORD said to Moses, “The man must die. The whole assembly must stone him outside the camp.” 36 So the assembly took him outside the camp and stoned him to death, as the LORD commanded Moses.”

    This text does not deny that a general practise of ransoming occurs, in fact it seems to support it. In Exodus the Torah had already stated that a person who works on the Sabbath must be put to death, yet despite this it was unclear what to do with him. This suggests that they did not think the previous command to execute had to be literally carried out. TheyHebrews need an explicit command in this instance to justify the punishment. Only when God explicitly authorizes it for this case do they carry it out. This what I said in the text “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.”

    Its also worth noting the context of this command, the text has been talking about unintentional sins, it then states

    ”But the person who does anything defiantly, whether he is native or an alien, that one is blaspheming the LORD; and that person shall be cut off from among his people. 31′Because he has despised the word of the LORD and has broken His commandment, that person shall be completely cut off; his guilt will be on him. 32Now while the sons of Israel were in the wilderness, they found a man gathering wood on the sabbath day.”

    So the Isrealites had just been warned to not defiantly disobey God and immediately afterward a person broke the known law, and gathered wood on the sabbath. So what this text states is that in a particular instance of out right defiant law breaking God required the death penalty to be literally carried out.

    Three other points, Contrary to what you seem to imply gathering sticks for a fire in a camp is not a minor job if you have tried to build a fire to last all night in the freezing cold you’d know this. Moreover the context suggests deliberate defiance.

    Second, you state stoning is cruel because its cruel as practiced today by some Islamic countries, but that assumes that the ancient Isreal practice was the same as modern Islamic one. I understand that Rabbinical sources contests this, they state that when a stoning occurred the person was usually thrown of a cliff first, they died and then were covered in stones.

    Finally, I’ll note your method here, you state the text is not infallible because it goes against a moral judgment you make, which is apparently that deliberately defying God and violating his law is never serious enough to warrant the death penalty. But why assume that you judgment here is correct and the text is wrong, human moral judgments are fallible and its quite likely that if God issued commands they would conflict with some moral judgments humans make. Is not possible that deliberate defiance of God is more serious than you think?

    If the objection is that God would never command something I believe is wrong, therefore this is not Gods word, then I suggest you have assumed apriori that you are such a wise person that God would never disagree with you. That seems to me to be mere hubris.

  • @ Wagner
    I suggest you read the whole context.
    The man was not stoned for picking up sticks on the sabbath, he was stoned for willfully and blatantly disregarding Gods commandments regarding the Sabbath [which had just been given so should have been fresh in his mind]. The question is not one of sticks but of obedience and of taking God seriously.

    Regarding stoning, yes brutal by todays standards.
    But what alternative would you offer that was any less brutal. Decapitation with a flint sickle?

    Stoning had one big positive, no one person was responsible for the persons death as community participation was required This in turn emphasized the seriouness of Gods intent and the cost of taking a human life.
    Normal practise was redemption by way of fine but in this case it was the seriousness of the mans disregard for God that precluded redemption. Notice that the death penalty was not automatically assumed.

  • Thank you for your thoughtful response Matt! I was raising this problem in reasonable faith forum and nobody had an answer…

    But I am still troubled with the problem of slavery and racial discrimination in old testament. Can you recommend some “essential reads” about old testament ethics?

  • Wagner, Christopher Wrights books on OT ethics are excellent, so are Walter Kaiser’s and Paul Copans latest book is quite good as well. You can also peruse what I have written on some of these topics on this blog.

  • Thank you for the recommendations, Matt. I have books from these authors, but I don’t find their answers satisfactory anymore.

    You stated that “when a stoning occurred the person was usually thrown of a cliff first, they died and then were covered in stones.”

    But Numbers 15.36 doesn’t seem to give support to your thesis. Furthermore John 8 seems to contradict your thesis too.

  • I think Matt is speaking of Copan’s forthcoming work “Is God a Moral Monster?” We have a copy.

  • Wagner, my source was rabbincal discussions of how stoning was carried out. I flted with a Jewish scholar who also told me this, i’ll try and look it up.

    As to your claims, Numbers 15 just says they took him outside the city and stoned him, it says nothing of how this was done.

    John 8 is not really a good source, first if its historically accurate it was not a legally constituted case. The Jews were not allowed to carry out executions under Roman rule hence the appeal to Ceaser to crucify Christ, moreover I understand Judaism of the time did not carry them out anyway. Second, its widely recognised by pretty much all scholars liberal and conservative that the “women caught in adultery story”, that John 8 is a late interpolation, it does not occur in any of the early manuscripts, or early commentaries, and appears to have been added centuries latter, so I would not draw anything from it.

    I was not saying I agree with all Kaiser says or everything Wright says however I think they do answer many issues. Wright’s discussion of the role of women for example is good. Madeliene is correct that Copans book is not out yet.

  • Matt, I think you are referring to “Is God a moral monster?”. I’ve already read the article he published in EPS.

    Dr. Copan argues that OT law was not an ideal ethics. But God would develop it through the years. His thesis is not plausible by following arguments:

    1) According to Dr. Copan, sometimes God thinks it is acceptable to change his precepts to avoid people to turn away.

    If God is so prone to change his precepts to avoid loose people, then why he didn’t change his precepts to avoid command genocide against the cananites? After all, God commanded genocide against the cananites because they were wicked. If God had lowered his standards as He presumably had done with the Israelites, God would not have to command genocide against them.

    2) The book of genesis tell us that God chose Abraham to make him into a great nation. If God knew he would have trouble to make Israel accept his law in the future, God could have prepared this emerging nation to accept his ethics since the time he have chosen Abraham. Hence, it doesn’t make sense to argue that Israel was not prepared to a developed ethic. Why God could not have prepared Israel for a better ethics since the nation’s inception?

    In other words: Why God could not create a world where his chosen people would be prepared for a better ethics?

    It doesn’t make sense appeal to Israel’s hardness of heart. Most civilizations today have a far better ethics than ancient Israel. Therefore hardness of heart is not a reason for the impossibility to create a nation prepared for a better ethics.

    3) There is not a hint in Old Testament that the God’s commands had to be developed. On the contrary, OT says God’s law are eternal.

    “And the statutes, and the ordinances, and the law, and the commandment, which he wrote for you, ye shall observe to do for evermore; and ye shall not fear other gods.” (2Ki 17:37)

    “All His precepts are trustworthy. They are established forever and ever, to be performed with faithfulness and uprightness” (Ps. 111:7-8).

    “Ye shall not add unto the word which I command you, neither shall ye diminish ought from it, that ye may keep the commandments of the LORD your God which I command you.” (Deu 4:2)

    If one does not add or subtract from these commandments, then they remain immutable.

    4) According to the Bible, Jesus is God. But Jesus doesn’t seems to care about loosing people because of his message (see John 6.66). So, it is not plausible that God would change his law to avoid loose people.

  • @ Wagner
    You are ignoring human freedom and cosequence. God made various covenants with Israel but they invariably failed to keep their side of the bargain. The whole point is that God wants communion/friendship with humanity but if that is forced/programmed/created rather than voluntary then it is not real. True friends are friends because they want to be, never because they are forced to be.

  • “If one does not add or subtract from these commandments, then they remain immutable.”

    Technically true but there is a third option–you fulfill the requirements of the law and since this was impossible for man God did it Himself in the person of Jesus Christ

    Yet to all who received him, to those who believed in his name, he gave the right to become children of God— John 1: 12 NIV

    That is the point of the NT we are given a choice between God’s justice [ immutable law ] and His mercy [ grace and forgiveness found in Jesus Christ ].

    Shalom

  • Jeremy, I don’t think human freedom would be an obstacle for God to build a nation with better ethics.

    After all, presumably God knows how to choose the best persons to build a nation. If mere men were capable of leading the people to build nations with a far better ethics than Israel than I think it is utterly implausible that a omnipotent God could not do the same.

  • “Technically true but there is a third option–you fulfill the requirements of the law and since this was impossible for man God did it Himself in the person of Jesus Christ”

    Jeremy, Paul Copan argues that old testament ethics were not ideal. But if this is true, then it does not make sense to make this ethics eternal.

  • @ Wagner
    I see a number of problems wth your response–
    1, how do we know that Israel did not have the best ethics in the ancient world, can anyone offer examples from the period that were better? and buy what standard?
    2, you are assuming there was actually something wrong with thier ethics–says who and again by what standard?
    3, you seem to be missing the point that Israel were not chosen because they were better but they were chosen to be better.This is important or there would be no hope for anyone. Israel seems to have consistantly failed to understand this and in their pride failed to be what they were called to be time and again. Also it points forward to Christ and His sacrifice being available to everyone irrespective of race, sex, social status, works.
    4, Christ pointed out in the Sermon on the Mount that there is a big difference between mechanical adherence to the Law and “heart” level application.
    And any comments Paul Copen has to make are made within the paradigm of 2000 years of Christian history, I am always suspicious of retrospectively judging the past by the present. I also have a great deal of trouble with the rather arrogant assumption that we [as in modern/now/21C] are in fact any better than other older cultures. I am absolutely sure that previous cultures would look in disgust at some of the things were do eg the way we treat elders, factory farming of animals, poisoned our environment, seem to treat the criminal with more respect than the victim.

  • Wagner, I am referring to Copan monograph Is Yahweh a Moral Monster which is forthcoming but not yet out. Now I am not committed to the view that Copan is correct in everything he says. But in response to your comments.

    1. First, I don’t think Copan says its acceptable to change ones precepts to ensure people don’t turn away. I understand him to be saying that when one applies these moral precepts to concrete situations of civil legislation one needs to take into account the character of the people in question and what can be realistically expected. Take for example the precept that its wrong to lie, I accept this precept is correct ( at least for normal situations) but if I was drafting legislation for a country I would not make it illegal to lie, this is because most people do lie and do so fairly regularly such a legislation would result in criminalising the majority of the population. Instead, I would legally tolerate lying and outlaw certain pernicious forms such as fraud, perjury and defamation. I don’t think this is terribly controversial legislatures make calls like this all the time.

    Second, Copan does not believe that God commanded Genocide, but that the passages in question reflect ANE war rhetoric and hyperbole not literal commands to engage in Genocide, he and I are actually co-writing an article to this effect at the moment which will be published in an anthology late this year.

    2. Here your claim is simply that God could have done it differently. Not sure how that’s an objection. If its that God could have done a better job then I think there are two problems (a) how do you know this, to do so one would need to know all the relative alternative histories God could have created with the Isrealites, which ones he could coherently bring about and also what the values and disvalues of each one is relative to each other. i am skeptical people really know this. (b) even if God could have done better its not clear this carries much weight. After all it plausible to think that no matter what action God did a better one was available. For example if God made a world with 1000 happy people he could have made one with 1001 and if he did this he could have made one with 1002 and so on.

    You write It doesn’t make sense appeal to Israel’s hardness of heart. Most civilizations today have a far better ethics than ancient Israel. this however is an unfair comparison ( assuming its true) after all you are comparing nations today many of them which have been influenced by the development do to 2000+ years of reflection on the laws Isreal laid down. The real question is how did this code fare compared to other nations in the same time and place, which is one of Copan’s main points.

    3. I think your wrong about the OT, as I read it the OT at best tolerates polygamy. Similarly I think a careful reading of the passages on “slavery” suggests that at best a certain form of indentured servitude is tolerated. Moreover, like any legal code, the Mosaic law does not outlaw every immoral action, despite the OT condemning lying and drunkenness these are not outlawed. Moreover, the whole code appears to be geared towards fallen humans for example the claim “if a person steals then you must pay restitution” if a person kills he must be executed and so on, are accommodations to human conditions. if there were no thefts or murders such laws would be unnecessary

    4. John 6:66 does not claim God does not care about those who do not follow him. But your point seems to raise a separate issue which is the question of how God can create people foreknowing or allowing them to be lost this is an interesting question, but its a separate objection to whether the issues of OT ethics raised in this thread.

  • Matt, thank you for our lively conversation. I live in Brazil and I think I would never have the chance to discuss this problem with a biblical scholar if blogs like yours didn’t exist. Nonetheless, I’m still not convinced.

    Here your claim is simply that God could have done it differently. Not sure how that’s an objection. If its that God could have done a better job then I think there are two problems (a) how do you know this

    I know that I cannot prove my assertion. However, I think it is implausible that God could not have done a better job.

    After all, presumably God knows how to choose the best persons to build a nation. If mere men were capable of leading the people to build nations with a far better ethics than Israel than I think it is utterly implausible that a omnipotent God could not do the same.

    even if God could have done better its not clear this carries much weight.

    I think it is evident that a law which abolish slavery is much better than a law which states that strangers can be bought as slaves and that they can be hebrew’s bondman FOR EVER (Lev 25.46).

    And why a loving God would establish stoning as capital punishment?

    You write that “when a stoning occurred the person was usually thrown of a cliff first, they died and then were covered in stones.”

    Nonetheless, it doesn’t make sense to state that stones were used only for cover the dead person. After all, stoning is a reference to the method which capital punishment was executed and not to the method of burying corpses.

    You write It doesn’t make sense appeal to Israel’s hardness of heart. Most civilizations today have a far better ethics than ancient Israel. this however is an unfair comparison ( assuming its true) after all you are comparing nations today many of them which have been influenced by the development do to 2000+ years of reflection on the laws Isreal laid down.

    Ok, but presumably it was God who established the law. He doesn’t need 2000 years of reflection to make better laws.

    I think your wrong about the OT, as I read it the OT at best tolerates polygamy.

    But how do you deal with texts that state that God established his law for ever?

    John 6:66 does not claim God does not care about those who do not follow him.

    Yeah, but it seems that Jesus would not mitigate his message to avoid loose people.

    Like Jesus, Yahweh could have introduced a better ethics. If people were to turn away, God could have choosed only those who remained to make them a great nation.