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The Foundations of the Alexandrian Argument against Feticide Part II

April 9th, 2009 by Matt

In my previous post I gave a brief introduction to The Alexandrian Argument against feticide and noted Harrison’s claim that this argument is based on a mistranslation of the Hebrew by the LXX. In this post I will look at whether the passage refers to a miscarriage.

Does the Case Deal with a Miscarriage?
The RSV interprets the passage as involving a miscarriage. Verse 22 is rendered; “When men strive together and hurt a woman with child, so that there is a miscarriage”. This reading has been challenged. Calvin argued that it refers not to a miscarriage but to a premature birth.[1] Cassuto, who held the same view, summarises this reading as,

The statute commences, And when men strive together, etc., in order to give an example of accidental injury to a pregnant woman and . . . the law presents the case realistically. Details follow: and they hurt unintentionally a woman with child—the sense is, that one of the combatants, whichever of them it be (for this reason the verb translated “and they hurt” is in the plural) is responsible—and her children come forth (i.e., there is a miscarriage) on account of the hurt she suffers (irrespective of the nature of the fetus, be it male or female, one or two; hence here, too, there is a generic plural as in the case of the verb ‘they hurt), but no mischief happens—that is, the woman and the children do not die—the one who hurt her shall surely be punished by a fine, according as the woman’s husband shall lay—impost—upon him, having regard to the extent of the injuries and the special circumstances of the accident; and he who caused the hurt shall pay the amount of the fine to the woman’s husband with judges . . . But if any mischief happens, that is, if the woman dies or the children die, then you shall give life for life, eye for eye, etc.[2] [Emphasis original]

Before examining the arguments in favour of this reading it is important to note that many critics have dismissed this reading in far too cavalier a manner. Paul Simmons refers to an influential defence of this reading by Jack Cottrell[3] and responds by noting, “he stands virtually alone among scholarly translators and interpreters of this text. The novelty of his interpretation seems to be dictated more by necessity than by the text.”[4] Harrison expresses similar sentiments; “a fairly solid consensus” supports this NRSV interpretation.[5]

This response is erroneous for two reasons. The claim itself is simply false. It is untrue that Cottrell is “virtually alone” amongst interpreters in reading the text this way; nor is his interpretation novel. Numerous, significant commentators, in fact, defended this interpretation. Calvin adopted it and scholars such as Keil,[6] Geiger and Dillman followed it. In the 20th Century exegetes as diverse as Wayne House,[7] Bernard Jackson,[8] Meredith Kline,[9] Walter Kaiser,[10] J Ellington,[11] J Weingreen,[12] Cassuto,[13] Gleason Archer,[14] K Hoffmeier[15] and Norman Geisler[16] have defended it. The New International Version (N.I.V) adopts this interpretation. In light of these facts, it is plausible to contend that the “solid consensus” Harrison refers to does not exist. Secondly, one does not ascertain the correct meaning of a text by counting heads. One does so by examining arguments in favour of the interpretation and establishing whether they are sound or not.

Simmons offers several other criticisms of Cottrell, all of which fail for similar reasons. He notes that some “fundamentalist” scholars disagree with Cottrell. This response hardly constitutes a rebuttal, as numerous scholars do not agree with Simmons, including many whom Simmons would call fundamentalists, yet that alone does not entail that Simmons is mistaken. Moreover, the specific scholar Simmons mentions is Bruce Waltke. Interestingly, it was Waltke whom Cottrell was criticising in the article cited and Waltke promptly changed his opinion after reflecting upon Cottrell’s critique.

Simmons goes on to note that the Talmud interprets this passage as a miscarriage and then states, “Although tradition does not establish truth, one would think that ancient interpretations would be helpful in dealing with awkward textual materials”.[17]

In making this last point, Simmons undercuts his own argument. After all, is not the Septuagint itself an ancient interpretation? Parity of reasoning would lead us to conclude it was correct. Moreover, the Talmud argues that feticide violates the Noahic law against homicide, a position Simmons is specifically criticising. In addition, the dominant, Christian interpretation of the text in question has been to understand it as prohibiting feticide, again the appeal to traditional interpretation undercuts itself.

Whatever can be said of Cottrell’s interpretation, it cannot be dismissed by appeals to a false consensus or by noting that not everyone shares his position. The arguments in favour of it need to be examined.

Arguments for the Premature Birth Interpretation
Those who argue that the text deals with a premature birth as opposed to a miscarriage base their conclusions on three, lexicographical concerns. Firstly, they note that the Hebrew word that the RSV translates as miscarriage is not the normal Hebrew word for miscarriage, which is shakol. Shakol does not occur in the MT rendition of this text; instead, yatsa is used. Yatsa is a far more general verb that means ‘to come out.’

Secondly, defenders of the premature-birth view point out that the normal Hebrew noun for a miscarried fetus, nefel, is not present either. Instead, what is said to come out is yeledium, a term that means children.

Thirdly, defenders of this interpretation note that when yatsa modifies children in utero in the context of pregnancy the phrase nearly always refers to giving birth. This is evident from other passages in the Pentateuch.

When the time came for her to give birth, there were twin boys in her womb. The first to come out (yatsa) was red, and his whole body was like a hairy garment; so they named him Esau. After this, his brother came out (yatsa), with his hand grasping Esau’s heel; so he was named Jacob. Isaac was sixty years old when Rebekah gave birth to them.[18]

When the time came for her to give birth, there were twin boys in her womb. As she was giving birth, one of them put out his hand; so the midwife took a scarlet thread and tied it on his wrist and said, “This one came out (yatsa) first”. But when he drew back his hand, his brother came out, (yatsa) and she said, “So this is how you have broken out!” And he was named Perez. Then his brother, who had the scarlet thread on his wrist, came out and he was given the name Zerah.[19]

The same use of yatsa referring to a birth occurs in later Hebrew writings,

Cursed be the day I was born! May the day my mother bore me not be blessed! Cursed be the man who brought my father the news, who made him very glad, saying, “A child is born to you-a son!” May that man be like the towns the LORD overthrew without pity. May he hear wailing in the morning, a battle cry at noon. For he did not kill me in the womb, with my mother as my grave, her womb enlarged forever. Why did I ever come out (yatsa) of the womb to see trouble and sorrow and to end my days in shame?[20]

Based on these facts it is claimed that the text deals with a case where the woman is struck so that she gives birth prematurely; nothing about the text suggests that the fetus dies. The phrase “and no harm follows …” quite naturally in this context refers to the fetus. The text then, according to this argument, states that if the fetus is born unharmed and survives then there is a fine but if the fetus is harmed the lex talionis applies.

Initially this argument appears compelling and it is repeated many times in the literature. However, Russell Fuller has refuted it in a 1994 article.[21] Fuller examines various Ancient Near Eastern (A.N.E.) legal codes from roughly the same period as the Pentateuch and notes three important facts.

Firstly, he notes that these codes enacted laws to deal with a case where a pregnant woman was struck by a man and miscarried as a result. The Code of Hammurabi, the Middle Assyrian Laws, the Hittite Laws and the Persian Laws all deal with this contingency. It appears to be a standard case in A.N.E. jurisprudence. Secondly, no legal literature of the period ever referred to or dealt with a case where a woman gave birth prematurely. Finally, those laws that do deal with an induced miscarriage use equivalent phraseology to the phraseology in the book of Exodus. A miscarriage is described as “her child drops out” instead of the standard technical terms for miscarriage. In some cases, the laws dealing with miscarriage use phraseology that is almost word for word identical with the text of Exodus 21:22 if they were transliterated into Hebrew. Fuller notes the implications of this.

[I]n all Biblical and ancient Near Eastern legal literature and in almost all the general literature, there are no references to premature births. It simply was not directly addressed. Therefore if Moses were introducing a new, unique law, previously unknown (at least from the sources we now possess) to the general society and culture, concerning a premature birth, he would have avoided ambiguity and misunderstanding by using precise language, especially if similar laws from the broader society, such as laws concerning miscarriage, might have confused the issue. Moses, on the contrary, by using general language in Ex 21:22, most likely intended his readers to understand this law according to the broader context of society. Therefore he considered it unnecessary to insert lah after ason (or to write nepel instead of yeled) since that society and culture understood to whom ason applied[22]

Fuller’s point is that if Moses were describing a premature birth it is highly unlikely that he would do so using language and terms that were almost identical to the language normally used in A.N.E. jurisprudence to designate miscarriage, especially if he were departing from the standard paradigm and introducing a new case. If Moses were departing from the paradigm then one would expect the author to depart from the normal phraseology rather than simply repeat it. Far from being evidence against the miscarriage interpretation, the use of yatsa yeledium in the context of A.N.E. legal code is evidence in favour of this reading. If one is drafting law on miscarriage, it is not surprising that one adopts language normally used in such laws.[23]

The Premature-Birth Interpretation Refuted
The arguments in favour of the premature birth interpretation fail. Further, the interpretation itself is very unlikely for several reasons.

Firstly, the absence of contemporary, medical technology in the period when the A.N.E. texts were written would mean that the fetus surviving a premature, live birth would almost never happen. R N Congdon notes that only in the last six weeks of pregnancy would an infant’s lungs be sufficient to live outside the womb. He notes further that only a severe blow could cause a miscarriage at this stage. Such a blow would, in the majority of cases, cause injuries such as a fractured skull, uterine rupture or damage to the oxygen supply that would result in death. In a typical case, a child born prematurely because of such a blow would die within 48 hours.[24] In a non-technological era it is highly improbable that a situation would arise where a woman is struck so she goes into labour, gives birth and there is no harm to the child.

Secondly, the law in Exodus in terms of its structure, literary form and language, parallels A.N.E. laws dealing with miscarriage. The Code of Hammurabi and the Middle Assyrian Laws all deal with cases where a man strikes a woman and she miscarries, but is not hurt herself, and a case where she is hurt. All use the same language and phraseology as Exodus does.[25] In fact, the description of an induced miscarriage in the protasis of a contemporary Hittite Law parallels the Exodus “down to the minute details of phraseology”.[26]

Thirdly, in the Exodus law, the word yeledium (children) is plural; this makes sense if the text refers to a miscarriage. Sprinkle notes that a miscarriage would probably be described with a plural of abstraction so that yeled (child) was rendered “fruit” or “product of her womb”.[27] A similar way of referring to miscarried infants occurs in A.N.E. law. Conversely, if the word yeledium is simply a normal reference to children then the case law must envisage multiple births, a rare phenomenon. Surviving a premature birth in such a society would be extremely rare and the rarity of a premature, multiple birth compounds these improbabilities. A case where a woman was struck and had surviving, premature twins or triplets would be so improbable that it would hardly require specific legislation.

Taken together; these factors provide a compelling case that Exodus 21:22 does not refer to a premature birth. If the text did refer to a premature birth, then one must conclude that the law introduces a case nowhere discussed before, which is almost never going to happen and the occurrence of which would be practically impossible, all the while utilising the same literary form that was normally used to refer to a miscarriage in the legal texts and case law of the period.

Therefore, miscarriage makes significantly better sense in the context. If the text deals with a miscarriage it is not surprising that it uses the same language as other miscarriage cases in other A.N.E. legal codes or that it is set out in similar form to such laws. A miscarriage was a likely event and the plural language is readily explicable. The first of Harrison’s interpretive judgements is therefore defensible.

In my next post I will address the question, is the harm to the woman or the fetus?

[1] See the quote from Calvin that I reference in Part I.
[2] Umberto Cassuto, Commentary on the Book of Exodus, trans. by Israel Abrahams (Jerusalem: Magnes Press, 1974), 275.
[3] Jack Cottrell, “Abortion and the Mosaic Law” Christianity Today (March 16): 1973.
[4] Paul Simmons, “Personhood, The Bible, and The Abortion Debate” (1990).
[5] Harrison, Our Right to Choose, 68.
[6] C Keil & Franz Delitzsch, Commentary on the Old Testament: The Pentateuch (Grand Rapids, MI: Eerdmans, 1976), 1.135.
[7] Wayne House, “Miscarriage or Premature Birth: Additional thoughts on Exodus 21:22-25,” Westminster Theological Journal 41 (1978): 108-123.
[8] Bernard Jackson. “The Problems of Exodus 21:22-25 (Ius Talionis),” Vetus Testamentum 23 (1973): 271-303.
[9] Meredith Kline, “Lex Talionis and the Human Fetus,” Journal of the Evangelical Theological Society 20 (1977): 193-201.
[10] Walter Kaiser, Towards Old Testament Ethics (Grand Rapids, MI: Zondervan Publishing, 1983), 102-104 and 168-172.
[11] John Ellington, “Miscarriage or Premature Birth,” Bible Translator 37:3 (1986): 334-337.
[12] J. Weingreen, “The Concepts of Retaliation and Compensation in Biblical law,” Proceedings of the Royal Irish Academy 76 (1976): 1-11.
[13] Cassuto, Commentary on the Book of Exodus, 275.
[14] Gleason Archer, An Encyclopaedia of Bible Difficulties (Grand Rapids MI: Zondervan, 1982), 247-249.
[15] James K Hoffmeier, “Abortion and the Old Testament Law,” in Abortion, ed. James K. Hoffmeier (Grand Rapids, MI: Baker Books, 1987), 57.
[16] Norman Geisler, Christian Ethics: Issues and Options (Grand Rapids, MI: Baker Books, 1989), 145.
[17] Simmons, “Personhood, The Bible, and The Abortion Debate.”
[18] Gen. 25:24-26, N.I.V.
[19] Gen. 38:28-30, N.I.V.
[20] Job 20: 14-18, N.I.V.
[21] Russell Fuller, “Exodus 21:22-23: The Miscarriage Interpretation And the Personhood of the Fetus.” Journal of the Evangelical Theological Society 37: 2 (1994): 169-184.
[22] Ibid., 183.
[23] Madeleine Flannagan and Glenn Peoples suggest that the fact that the A.N.E. law uses similar phraseology to the Mosaic Law could be seen as evidence that all these laws referred to a premature birth and none referred to a miscarriage. I doubt this; first, no commentator of the laws in question, that I know of, has suggested such an interpretation. Second, a common paradigm in some of these laws is between a blow that causes a miscarriage and a blow that kills or harms a woman. In light of this, I suggest that the miscarriage interpretation is more likely.
[24] Robert N. Congdon, “Exodus 21:22-25 and the Abortion Debate,” Biblio Sacra 146 (1989): 140-142.
[25] Fuller, “Exodus 21:22-23:,” 182.
[26] E.A. Speiser, “The Stem Pll in Hebrew,” Journal of Biblical Literature LXXXII (1963): 303. [27] Joe M. Sprinkle, “The Interpretation of Exodus 21:22-25 Lex Talionis and Abortion,” Westminister Theological Journal 55.2 (1993): 7-8.

RELATED POSTS:
The Foundations of the Alexandrian Argument against Feticide Part I
The Foundations of the Alexandrian Argument against Feticide Part III
The Foundations of the Alexandrian Argument against Feticide Part IV
The Foundations of the Alexandrian Argument against Feticide Part V
The Foundations of the Alexandrian Argument against Feticide Part VI

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9 responses so far ↓

  • I assume that these essays have been presented to provide an argument against abortion, but I don’t believe they do.

    Certainly if a woman, who wants to be pregnant, is struck by another person so that she loses her fetus at whatever stage of development it may be, she has suffered a loss, an injury and is entitled to compensation and the person responsible should be punished.

    However what if a pregnant woman wanted to lose her fetus and arranged for someone to strike her in such a way that she miscarried. She would in that situation not have suffered a loss or injury so she would not be compensated and the person who carried out the act would not be punished because he complied with her request.

    The text relates to the injury to the woman, to her person or to the fetus she wanted to keep, it makes no mention to the death or injury to the fetus separately.

  • My position for years (and still now) has been that the RSV commits the same type of error as those who insists that this verse refers directly to a premature birth: They attempt to be more specific than the text will allow.

    Let me put it this way: If, in ancient Israel, there was a fight and one of the men involved harmed a woman, causing her to go into premature labour and her child did, as a result, come out and also survive, I think – and perhaps you’ll agree, Matt, that this law in Exodus could correctly be invoked. Likewise, if the force caused a miscarriage, this law could also be invoked. While it may be true that in many or most cases such force would cause the child to die, this only means that in most cases it would result in a miscarriage (or death soon after birth), it doesn’t mean the text is correctly translated as “miscarriage.”

    Recent blog post: Dear John

  • Hi Mark

    While I consider abortion in most circumstances to constitute homicide without justification, this specific series does not defend this claim, it mere rebuts a particular argument made by Beverly Harrison (and numerous others) against the traditional casuistry.

    As to your argument about the text you make I actually address that point in a latter post.

    Recent blog post: JP Moreland on Faith and Reason

  • I am not certain which way I go with this verse, but my previous comment remains, using transliterations helps the discussion. In this case one should just say child comes out. The problem with “miscarriage” is that it implies death, whereas come out does not. Then the discussion is around whether the harm is to the mother or the child. The ESV states

    When men strive together and hit a pregnant woman, so that her children come out, but there is no harm

    I am not certain how much can be made of the plural for child.

    Recent blog post: A prayer and a pledge for real change

  • The other issue is one of chronology (aside from the fact I would not call Job a later example than Genesis 🙂 ).

    The common dating places Hammurabi prior to Moses, but a good argument can be made for Egyptian chronology being a complete mess, and hence other Near Eastern chronologies that depend so heavily on Egypt. I am working on a post that suggests, following biblical chronological priority, that Hammurabi can be dated to the time of Moses at the earliest, not several centuries beforehand. Thus Moses cannot be dependant on Hammurabi. They could refer to earlier laws and Genesis suggests that aspects of the Mosaic law were known before Sinai.

    Recent blog post: A prayer and a pledge for real change

  • I think the interpretation of Exod 21:22 as a delivery/birth – without any further indication of miscarriage – has rather more going for it than you conclude.

    The three reasons concerning language are good reasons in themselves. The description in Exod 21:22 of what happens to the pregnant woman as the result of being hit is literally “and her children go out” (weyaṣe’u yeladeha). So, all that is being described is that there is a series of events: men fighting, men striking a pregnant woman, child or children being delivered. There is nothing in the text (leaving other contextual considerations aside for the moment) that indicates this is a dead baby or a live baby being delivered.

    But one further reason for concluding that the baby is unharmed (which Russell Fuller did not observe in his article) lies in the very next statement in Exod 21:22:
    welo yeyeh ‘ason. The statement is simple and unqualified: “…and there is no harm.” The verse does not qualify this as “no harm” to the mother or “no harm to the baby. It is unqualified and absolute: “no harm”. The result of the men striking the pregnant woman, in this casuistic law is that there is no harm. Period.

    So what of the comparable aNE laws which do in fact refer to miscarriage? Do they in fact alter this interpretation? No: there is a significant difference between those laws and this law. The aNE laws refer to incidents occuring between a man and a pregnant woman, when the man deliberately strikes the woman. By contrast, the biblical law in Exod 21:22 refers to an incident between two men, in which a pregnant woman is accidentally struck. Whereas intent is assumed in the aNE laws discussed by Russell Fuller, the biblical law is only dealing with negligence. Exod 21:22 has deliberately changed the scenario which governs in the aNE laws. So the aNE reader would be on the lookout for the law to differ in other respects as well. The distinction in the biblical law between wilful and unintentional acts has just been made in a previous law: Exod 21.12-14. So, there is a very good reason why Exod 21.22 should not be forced to be read as simply a reproduction of those earlier aNE laws. Fuller’s argument is, I think, quite weak.

    So Exod 21:22 sets out a law for a premature birth where no harm has resulted (to mother or baby). Exod 21:23-25 then sets out the law for a premature birth where harm does in fact result (to mother or baby). There is no good ground for reading ‘miscarriage’ into Exod 21:22.

  • Glenn:“…those who insists that this verse refers directly to a premature birth: They attempt to be more specific than the text will allow… While it may be true that in many or most cases such force would cause the child to die, this only means that in most cases it would result in a miscarriage (or death soon after birth), it doesn’t mean the text is correctly translated as “miscarriage.””Deane:I think you’re quite right, Glenn.

    Furthermore, as verse 22 refers to the scenario in which there is “no harm” and verses 23-25 refer to the scenario in which “harm” does result, miscarriage can only occur in vv. 23-25.

  • I am not convinced by your argument. You wrote
    “literally “and her children go out” (weyaṣe’u yeladeha). So, all that is being described is that there is a series of events: men fighting, men striking a pregnant woman, child or children being delivered. There is nothing in the text (leaving other contextual considerations aside for the moment) that indicates this is a dead baby or a live baby being delivered.”Thats correct, the problem is that while the phraseology literally only means “baby comes out” this phraseology is exactly the type of phraseology used in ANE laws to describe a miscarriage. Other laws also simply state that the “baby comes out” in the same context to refer to a miscarriage and never to refer to a premature birth. Hence in a legal context this phraseology refers to a miscarriage.

    An analogy might help here, suppose I told you that in New Zealand the drinking age is 18, you told me that in another jurstiction it was 21. Our language literally says “drinking age” alcohol is not mentioned. Yet we both know that the phrase refers to the age one is allowed to drink alcohol because that is how the phrase “drinking age” is used in discussions on this topic.

    The statement is simple and unqualified: “…and there is no harm.” The verse does not qualify this as “no harm” to the mother or “no harm to the baby. It is unqualified and absolute: “no harm”. The result of the men striking the pregnant woman, in this casuistic law is that there is no harm. Period.I was well aware of this point, but again I don’t think its conclusive. The fact it is unspecified means it could refer to either the women or the child or both. The language then is ambigious hence we need to look elsewhere for clarity as to who and here the cultural context suggests its the mother. First, In every other law from the period where this distinction is drawn it is between harm to mother causes by an induced miscarriage and no harm caused to the mother. Second, as stated above the phraseoloy used in the previous sentence is the phraseology used in legal texts to designate miscarriage and third, it is extremely unlikely if possible at all that any legislator would envisage a live birth, this is not modern neo-natal wards, in that culture if a child is born as the result of such a blow they die. To suggest that the legislator decided to depart from the normal practise, did so using the same language used to describe the normal, in order to accommodate a contigency which would never occur seems to me far fetched. Its far more plausible to suggest they were simply following the paradigm.

    So what of the comparable aNE laws which do in fact refer to miscarriage? Do they in fact alter this interpretation? No: there is a significant difference between those laws and this law.Ok here there is a misrepresentation of my argument. My argument is not that the ANE laws refer to a miscarriage so the torah must. My argument is that the ANE laws used the same phraseology as the torah to refer to a miscarriage. That is significant, to determine what a phrase means one needs to do more than simply transliterate it, one needs to look at how the phrase in that culture in similar contexts.

    The aNE laws refer to incidents occuring between a man and a pregnant woman, when the man deliberately strikes the woman. By contrast, the biblical law in Exod 21:22 refers to an incident between two men, in which a pregnant woman is accidentally struck. Whereas intent is assumed in the aNE laws discussed by Russell Fuller, the biblical law is only dealing with negligence. Exod 21:22 has deliberately changed the scenario which governs in the aNE laws. So the aNE reader would be on the lookout for the law to differ in other respects as well.I agree these differences exist, I noted it in the text, this point however reinforces my case, we know this because the author has clearly used language which differs from the standard cases.

    To return to my “drinking age case” if there was a law in the surrounding culture that put the drinking age at 21 and I come across a new law that states “the drinking age is 18”. Then we would assume that the new law meant that the legal age to drink alcohol was 18. We would not employ the logic you use and argue that because there is a difference in age“ the reader would be on the lookout for other differences as well” and then intepret the phrase “drinking age” to refer to drinking orange juice. We would on the contrary assume that the phrases meant the same thing in the two laws unless the law explictly stated otherwise.

    Recent blog post: The Foundations of the Alexandrian Argument against Feticide Part VI

  • You’re right that the statement that there is “no harm” is ambiguous. But I can’t accept your all-too-easy recourse to comparable aNE laws – because there are no easily comparable laws.

    This is not a case of changing a single word in legal phrases which always refer to a man intentionally striking a pregnant woman. This is a case in which a quite different scenario is being discussed – a woman is accidentally struck during a fight between two or more men. This is not a case of intentional homicide at all (as in the aNE laws mentioned), but at most of negligent homicide (if “harm” results). It is more in line with the distinction made between intentional and unintentional homicide in Exod 21.12-14 in this respect. The immediate context of Exodus 21 is much more relevant that broadly similar aNE laws.

    So, to utilise your analogy, the aNE cases aren’t like a simple change in drinking age from 21 to 18. They are more like the difference between laws against drinking under 18 and laws against offering alcohol to a minor for the purposes of seduction. The entire situation being presupposed – the facts of the striking of the pregnant woman – are fundamentally different. So, while comparable laws would be great – if they existed – to explain the ambiguity, unforunately they don’t exist. And we are stuck with an ambiguous text. Was the law intended to apply both to harm of the pregnant woman only? Or to harm of the pregnant woman and baby? The answer is uncertain, but importantly the text does not explicitly restrict itself to the pregnant woman only. It just speaks about there being “no harm”.

    The ‘lack of harm’ in verse 22 is of course hypothetical. The two protases (“if there is no harm…” / “if there is harm…”) decide whether the man who strikes the pregnant woman is to be fined, or is liable to the more significant punishments set out in verses 23-25. Whatever the precise nature of the two sets of punishment, the punishment for there being “harm” resulting is most likely to be the more severe punishment. So, verse 22 is only hypothetical – if there is no harm, a fine should surely (emphatic, as a result of the absolute infinitive) be paid, but only if there is harm resulting should one of the severe penalties be applied. As this is the case, your (somewhat speculative, but probably correct) argument that most babies wouldn’t have survived an early labour in the ancient world has little or no cogency. So what if a hypothetical doesn’t often come to pass? It’s a hypothetical! The more serious consequences of the law lie in verses 23-25, which is where the focus of the law is. If harm results from the negligent strike, that is when the man receives the more serious penalties.

    The aNE laws don’t help us with the problem of ambiguity, due to the significantly different nature of the law in Exod 21:22-25. As a newborn baby and woman are both in view when the verse comes to say “if there is no harm”, it would be very unusual that the presence of a dead baby could be described simply as “no harm”. Can an unborn baby not be “harmed”? So, I conclude that the Exod 21:22 applies to harm caused to both mother and baby.