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The Foundations of the Alexandrian Argument against Feticide Part IV

April 13th, 2009 by Matt

See the previous posts beginning here for the context that this post falls in. In this post I will address whether the punishments outlined in Exodus 21:22-25 are qualitatively different beginning with whether the death of the woman is a capital offence. In my next post I will ask if the text considers feticide a minor offence.

Are the Punishments Qualitatively Different?
Crucial to the arguments of Rachels, Harrison and Spurgeon is their claim that the punishments for killing the woman and killing the fetus are qualitatively different. Harrison states that the Masoretic text,

[D]emonstrates that causing the death of a fetus did not constitute a major crime at that time; payment of a fine to a prospective father was considered adequate compensation for the miscarriage. Hurting or maiming a pregnant woman, on the other hand, was a serious penal offence equivalent to other life denying crimes.[1]

Harrison affirms that because killing the fetus is only punished with a fine it follows that killing a fetus is not a serious crime. On the other hand, the law allegedly states that hurting a pregnant woman was equivalent to “life denying crimes”. Exactly what Harrison’s basis for this claim is, is unclear. Others who make the same line of argument are more explicit. Spurgeon is a paradigm. He writes,

[I]f you cause the death of the fetus, you merely pay a fine; if you cause the death of the woman, you lose your own life. Thus the Bible clearly shows that a fetus is not considered a person. If the fetus were considered to be a person, then the penalty for killing it would be the same as for killing the woman–death.[2]

Crucial to this line of argument then is the claim that while killing a fetus is punishable by fine, killing a woman is punished by death. This appears to rest on a literalistic[3] reading of v 23 where the phrase “life for a life” is understood as the killing of the assailant for the death of a woman.

This reading of v 23 is disputed. The phrase “life for life” is the first part of an extended phrase which states, “you shall pay life for life, eye for an eye, tooth for tooth, hand for hand, foot for foot, branding for branding, wound for wound, stripe for stripe”, a phrase which has become known in the literature as the lex talionis.

Is the Death of the Woman a Capital Offence?
One influential interpretation argues that this phrase merely expresses a legal formula which is expounded in proverbial form. The principle is that whatever punishment is imposed (and in this immediate case the punishment is a fine) must be proportionate to the harm inflicted on the victim. Sarna notes “[r]abbinic tradition understood the biblical formulation to mean monetary payment and not physical retaliation”[4] and he defends this interpretation. Drazin notes that the Halacah in b. B.K 84a and Sanhedrin 79a and Mek each understand the phrase to refer to a principle of commensurate compensation.[5] Plaut states that “few passages in the Torah have been so thoroughly misunderstood” and suggests the text is best understood as requiring “the value of an eye for the loss of an eye”, “the value of a limb for its loss and so on”.[6] Rachels, Harrison, et al. do not engage with this tradition of exegesis. They appear merely to assume a literalistic reading without argument.

There are, I think, good reasons for accepting the traditional, rabbinic exegesis on this point. Here I will provide six. While none of them may be decisive in themselves, jointly, I believe, they provide a strong case for reading v 23 in the traditional fashion.

The first reason is how phraseology such as that found in v 23 functions in such a genre as Exodus is written in. As noted above, this section of the book of Exodus in terms of its structure, literary form and language parallels the structure and language of Ancient Near Eastern (A.N.E.) legal texts. Interestingly enough, the legal formulas such as ‘an eye for an eye or a tooth for a tooth’ are not uncommon 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.[7] 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.[8]

Westbrook notes that such 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”. He goes on to note “[s]ome law codes impose physical punishments and others payments for the same offenses, while some codes have a mixture of the two. There is not necessarily a contradiction.” He explains that “in highlighting one or the other alternative, the codes are making a statement as to their view of the gravity of the offence”.[9] Westbrook argues that serious wrongs “gave rise to a dual right in the victim or his family, namely to take revenge on the culprit, or to make composition with the culprit and accept payment in lieu of revenge”.[10] He goes on to note, “[t]his right was a legal right, determined and regulated by the court”. The courts could “fix the level of composition payment” making “revenge a contingent right, which was only revived if the culprit failed to pay”.[11] When talionic legal formulae occur in A.N.E. legal texts they merely express that the punishment be proportional to the crime. This could involve punishment in kind (which would be proportional to the crime) but in most cases it would probably involve monetary compensation. The phraseology is compatible with either.

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. He states 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”.[12]

There is evidence then to suggest that when talionic formulae occur in A.N.E. legal texts they do not necessarily function as commandments to inflict literal mutilation in kind. They rather function as a kind of hyperbolic, ironical way of denouncing the crime and expressing a principle of proportionality.

The second reason for understanding the lex talionis in this fashion follows on from the first. A careful reading of the Hebrew Bible suggests that something like what Westbrook and Finkelstein argue is true of the Torah. Verses 29-32 deal with a case where an ox gores another person to death due to negligence on the part of the owner. This is a case of negligent homicide as opposed to premeditated killing; the penalty rendered is that the negligent person shall be put to death. However, immediately proceeding this, provision is made for a monetary fine to be paid instead of execution. This suggests that the command to execute was not considered incompatible with payment of monetary compensation proportional to the offence. The phrase “he shall be put to death” is not always to be taken literally.

In fact, this practice of substituting a monetary fine for a capital offence was common. Deuteronomy 22:22 states “If a man is found sleeping with another man’s wife” then “the woman and the man who slept with her must die”. Similarly, Leviticus 20:10 prescribes death for the crime of adultery yet in the book of Proverbs it is made clear that this penalty could be substituted for monetary compensation.[13] This again suggests that the phrase does not command or require execution but merely proportional punishment.

Another example occurs in the book of Kings. Here an incident is mentioned where a person has committed a capital crime. The sentence is announced in terms of the lex talionis as “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 “life for life” in the sense of capital punishment has an explicit alternative of monetary substitution”.[14]

A final example occurs regarding the case of homicide. 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 where 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] which appears to be a reference to an intentional but not premeditated attack such as a ‘crime of passion’. The text goes on to prohibit accepting monetary compensation instead of executing the criminal only in cases of premeditated homicide. Walter Kaiser notes,

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.[17]

Sprinkle makes the same point, “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”.[18]

It appears then that in both A.N.E. legal texts in general and in the Torah in particular, phrases such as “a life for a life” do not necessarily entail capital punishment. In cases where pre-meditated homicide is not involved and in cases where the homicide was unintentional but negligent, the Torah prescribes only that proportionate damages be imposed. This is significant because in the case under discussion, Exodus 21:22-25, we are not dealing with a case of premeditated homicide. The text deals with an accidental act caused through negligence. This is evident from the way the case is presented in v22. It starts by affirming that men (plural) are fighting and strike a pregnant woman. The woman is a third party and not one of the group fighting. This observation is further strengthened by the fact that most A.N.E. law codes that record the case deal with a single man striking a woman. Moses appears to depart from this paradigm in order to emphasise that the woman was a third party. The case, then, is of two people who are fighting each other and unintentionally strike a bystander causing a miscarriage. The case is not one of premeditated murder that by law required capital punishment but is of an unintentional killing brought about through negligence.

Some commentators attempt to escape this conclusion arguing that the case is not one of unintentional homicide. Two reasons are usually provided. First, that Deuteronomy 25:11-13 records a case where a woman gets involved in a brawl between a man and her husband and it is argued that the same situation is envisaged here.[19] Second, it is argued that the verb ‘to strike’ nagaf in v 21 refers to an intentional attack upon someone and hence, when the passage asserts that the men strike nagaf a pregnant woman, they do so intentionally.

Neither of these arguments is sound. The first is a non-sequitur. The fact that another law dealing with another case in Deuteronomy mentions a woman getting involved in a fight does not entail that this passage deals with such a case. The second is rendered problematic when one notes that just six verses later the verb nagaf is applied to a goring ox: “the notion that a goring ox is punished for its deliberate offence is quite absent from the mind of the Biblical legislator”.[20] Moreover, even if the woman did intervene in the fight and was struck deliberately this would still not be a case of premeditated homicide.[21]

A third line of evidence favouring a non-literalistic interpretation of the lex talionis makes sense of the way the phrase is used elsewhere in the scriptures. In Leviticus 24, for example, it states “If anyone injures his neighbor, whatever he has done must be done to him: fracture for fracture, eye for eye, tooth for tooth. As he has injured the other, so he is to be injured”. This sounds like it enjoins literal punishment in kind. However, immediately it goes on to elaborate, “Whoever kills an animal must make restitution, but whoever kills a man must be put to death”. Here we see that while in cases of intentional homicide the punishment is literally life for life, it does not rule out monetary restitution for damage done to another’s property. It must also be noted that interpreted literalistically this passage in fact contradicts the laws regarding assault.

The punishment laid down in the Torah for assault is to pay monetary damages, not to inflict injury for injury upon the perpetrator. Hence, to make sense of this rule in its context the lex talionis must be understood as enjoining proportional punishment, whether that be capital punishment in the case of murder or proportionate compensation in cases of damage to person or property.

The same conclusion applies to Christ’s citation of the lex talionis in the Sermon on the Mount. Here the phrase “eye for eye” is contrasted with the rule “Do not resist an evil person” and Christ illustrates this latter rule with a case where a person turns the other cheek to a slap. Daube notes “Supposing for a moment the maxim ‘Eye for Eye’ had then meant actual talion for mutilation and Jesus had intended to attack this principle, would the case of a slap in the face not have been an excessively weak illustration of his new position?”. Would it not have been necessary “to give a far more serious example”?[22] Similarly, Daube notes that none of the other cases Christ mentions, such as being sued for one’s cloak or being forced to walk a mile, fit a literal talionis either.[23] On the other hand, Daube notes that Christ’s statements do make sense when the talionis is understood as enjoining proportionate damages. In rabbinic law of the period, a slap on the cheek was viewed as a paradigm case of an insult where there was no actual harm or damage to the victim. Moreover, the rabbinic exegesis of the period ruled that one could sue a person who insulted him or her in this fashion for damages proportionate to the shame or damage done to their pride. Christ then appeared to understand the talionis in a non-literalistic fashion and stressed to his hearers not to be petty and prideful in its application.[24]

The above three lines of argument suggest that a non-literalistic interpretation of the lex talionis is supported by the genre of the text and the way the phrase is understood in the text itself and used elsewhere in the canon. This evidence by itself is insufficient. However, I think it is far more compelling when conjoined with three other facts about the immediate context of v 23.

In the first place, the verse begins with the statement “you shall pay life for life”. As Sprinkle[25] notes the word translated ‘pay’, in the context of the surrounding passages, is best rendered as “to pay” as in “pay money”. In the previous verse, the verb appears as, “he who is responsible shall pay whatever is laid upon him”. Verse 19 states that the assailant will “pay” an injured man’s medical bills and expenses. Verse 30 states he “will pay a ransom for his life”. Verse 32 “he will pay thirty shekels of silver to his master”. When the word occurs again in the next chapter, it refers to paying bail. Sprinkle notes that, in addition, the context supports rendering the word “for” as it occurs in the phrase “life for life” in v 25 as to having the nuance “in compensation for”. In v 36, it is used for compensation provided for the loss of an ox. In v 37, it refers to the restitution paid in compensation for a victim’s loss. The context then supports reading v 23 as referring to a kind of monetary or compensatory payment.[26]

The next thing to note is that a literalistic interpretation of v 23 does not fit the context and renders the passage internally inconsistent whereas the traditional, rabbinic exegesis coheres with the context perfectly. If one takes “life for life” to mean that a person is killed if they kill someone, then “wound for wound” or “an eye for an eye” would mean that assault is punished by assaulting the assailant and injuring the perpetrator in precisely the manner the victim was injured in. However, the text manifestly contradicts this. Only a few verses earlier in v 18 the law deals with a case where a person strikes another causing injury and the punishment is that he pays compensation commensurate with the injury. It would seem odd that a deliberate attack on a man is punishable by compensation but an accidental blow to a woman warrants mutilation.

Compare this with the rabbinic interpretation. Verse 18 prescribes that a person who harms another by assaulting him or her must compensate him or her for his or her injuries. Verse 23 states the same thing. Assaulting a woman requires that one pay commensurate compensation. The rabbinic reading therefore coheres with the context while the literalistic reading does not.

The final and perhaps the most compelling reason for the rabbinic interpretation is the text itself. Immediately after the lex talionis is proposed, the text seeks to apply it.

But if there is serious injury, you are to take life for life, eye for eye, tooth for tooth, hand for hand, foot for foot, burn for burn, wound for wound, bruise for bruise. If a man hits a manservant or maidservant in the eye and destroys it, he must let the servant go free to compensate for the eye. And if he knocks out the tooth of a manservant or maidservant, he must let the servant go free to compensate for the tooth.[27]

Verses 26-27 applies the principle expounded in vs 23-25. If a person is struck in the eye and her or his eye is destroyed then the assailant is required to compensate her or him for the value of an eye. Similarly, if a person knocks out her or his servants tooth he or she must compensate her or him for the tooth. This demonstrates that by stating “eye for eye” or “tooth for tooth” compensation is in mind. In this case, because the victim is a servant and indentured servitude in Israel was the result of debt, the assailant is required to write off all financial debts his victim owes him. The context clearly understands the lex talionis as the payment of commensurate monetary compensation.[28]

Taken together these last three lines of evidence suggests that the phrase “eye for eye” is not intended to be taken literalistically. Taken literalistically the law contradicts itself. It uses language differently to the way the same phrases are used in the context, contradicts the surrounding laws and applies itself in a manner contrary to its meaning. On the other hand, the rabbinical exegesis accords with the phraseology of the immediate context, coheres with the surrounding laws affirming the same basic principle with regards to assault and also fits the immediate application of the principle in the very next verse. In light of these facts it is best to understand the phrase “eye for eye, tooth for tooth, hand for hand, foot for foot, burn for burn, wound for wound, bruise for bruise” as a proverbial formula expressing the principle that (in this case) damages awarded be proportional to the harm inflicted.

In my next post I will look at whether the punishment for destroying a fetus is, as Harrison suggests, considered a minor offence.

[1] Harrison, Our Right to Choose, 68.
[2] Spurgeon, The Religious Case for Abortion, 16.
[3] I use the word literalistic here in distinction to the word literal. Interpreting a passage in accord with the literal sense of the text in historical, Biblical exegesis did not preclude such things as metaphor or idiom. Literalistic interpretation does. This distinction is noted by Bruce Vawter, “the literal sense of a writer or speaker [is] the meaning he wished to convey by the words he used- not what the words themselves might mean independently of his use of them. The literal meaning of a metaphor is not what its component words signify by dictionary definition but what their combination means in a context that challenges the imagination. A metaphor metaphorises, that is, it transfers the surface sense of its words to apply to another area of existence, an analogue. When I say it was “raining cats and dogs,” surely no one would suspect I was affirming that the streets had been littered with the corpses of Pekes, Dalmatians and Tabbies after a recent downpour. Literalistically I had said that, literally I had not.” Bruce Vawter, “Creationism: Creative Misuse of the Bible,” in Is God a Creationist? The Religious Case against Creation Science, ed. Roland M. Fyre (New York: Scribners, 1983), 72-73.
[4] Nahum Sarna, J P S Commentary: Exodus (New York: Jewish Publication Society, 1991), 126.
[5] Israel Drazin, Targum Onkelos to Exodus (New York: KTAV Publishing House, 1990), 215.
[6] W. Plaut, The Torah: A Modern Commentary (New York: URJ Press, 1981), 571.
[7] 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.
[8] Code of Hammurabi, 195-196, also 199.
[9] Westbrook, “The Character of Ancient Near Eastern Law,” 71-78.
[10] Ibid., 78.
[11] Ibid.,
[12] Finkelstein, “The Ox that Gored,” 35.
[13] Prov. 6:34-35.
[14] Sprinkle, “The Interpretation of Exodus,” 233-53.
[15] Jackson, “The Problems of Exodus,” 288-290.
[16] Num. 35:22.
[17] Walter Kaiser, “Gods Promise Plan and his Gracious Law,” Journal of the Evangelical Theological Society 35:3 (1992): 293.
[18] Jackson, “The Problems of Exodus,” 239.
[19] David Daube, Studies in Biblical Law (Cambridge: Cambridge UN.I.Versity Press, 1947), 108.
[20] Jackson, “The Problems of Exodus,” 288.
[21] A further point; given the medical technology of the day, it would be difficult to prove that a given miscarriage was in fact caused by a given blow. In light of this, it would be unreasonable to prosecute a person for premeditated homicide who struck a woman in a situation where a miscarriage occurred. Hence prosecuting them for a lesser offence of negligence would make more sense.
[22] David Daube, The New Testament and Rabbinic Judaism (London: Athlone Press, 1956), 256.
[23] Ibid., 257-258.
[24] Ibid., 254-265.
[25] Sprinkle, “The Interpretation of Exodus,” 233-53.
[26] Ibid.
[27] Ex. 21: 23-26, N.I.V.
[28] One response to this is to suggest that this law refers to indentured servants and not to free people. Hence, with a woman, who is not a servant, a literalistic talion applies. One could perhaps bolster this with an appeal to the fact that A.N.E. laws often prescribed different punishments for offences against different social classes. The problem here is that one of the major differences between the Torah and A.N.E. laws is precisely this point. Unlike the other laws, the Torah does not typically have a class stratified system of punishment for various crimes. Moreover, the laws in the preceding passages have told us that assaulting a free man is punished by a fine to compensate for injuries (see v 18). So the suggestion that compensatory damages for the assault are limited to the lower classes is false. In light of this it is difficult to believe that an accidental assault upon a woman would be treated differently. One could not plausibly suggest, based on A.N.E. legal precedents, that servants and free men have the same punishments but assaulting a woman is considered more serious. If anything, women are given a lower, not higher, status in A.N.E. legal precedents.

The Foundations of the Alexandrian Argument against Feticide Part I
The Foundations of the Alexandrian Argument against Feticide Part II
The Foundations of the Alexandrian Argument against Feticide Part III
The Foundations of the Alexandrian Argument against Feticide Part V
The Foundations of the Alexandrian Argument against Feticide Part VI
An Eye for an Eye and Turning the Other Cheek
Capital Punishment in the Old Testament: 1
Capital Punishment in the Old Testament: 2

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