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The Foundations of the Alexandrian Argument against Feticide Part VI

April 16th, 2009 by Matt

This post marks the conclusion in my series on The Alexandrian Argument. Having addressed whether Exodus 21:22-25 deals with a miscarriage or premature birth, whether the harm mentioned in verses 22 and 23 refers to the woman or the fetus and whether the punishments in the relevant clauses are qualitatively different, I will return to the original question which motivated this investigation.

Does the Septuagint Mistranslate the Hebrew?
Harrison claims that the Septuagint is a mistranslation that transforms a text that condemns killing pregnant women into a text condemning feticide. I have already disputed her reading of the MT. However, her third claim raises the question of the relationship between the two texts.

In referring to the LXX as a translation, Harrison’s comments are unobjectionable. The LXX does not render the wording of the MT accurately and introduces a distinction that is not part of the text. However, this does not mean that the LXX misinterpreted the text; translation and interpretation are not the same thing. Mark Scott writes,

It is commonly recognized that, in many passages, the Septuagint presents, in the Greek lingua franca, a gloss or commentary rather than a literal rendering of the Hebrew text, as the translators were attempting to embody — in a widely accessible form — then-current applications of the Scriptures.[1]

If the interpreters of the LXX were trying to render an accurate commentary and faithful application of the law as opposed to a literalistic translation, then the pertinent question is not whether they translated it accurately but whether the LXX faithfully articulated its teachings and correct applications of them. I think that it did.

There are three major differences between the LXX and the MT. First, the MT does not explicitly specify the number of men in the brawl. It opens with, “if men (plural) are fighting and they strike a pregnant woman”. However, the LXX explicitly mentions that there are “two” men fighting. Second, the LXX renders the final clause of v 22 as “according to an assessment”, whereas many English translations of the M.T. interpret this “as the judge determines”. Finally, the MT mentions harm done to the woman and the appropriate punishment. The LXX introduces the distinction between a formed/unformed conceptus.

None of these appears straightforwardly to involve an error in interpretation. The first is of little significance when one realises that

A careful examination of the relevant Hebrew biblical texts reveals that when the verb n.sh is used with the basic meaning “to contend”, or “to strive”, as opposed to “to fall into ruins”, no more than two adversaries are involved.[2]

The difference between the Hebrew for “men strive” and the Greek “two men fight” appears to be merely semantic. I addressed the second difference earlier where I noted that the LXX’s rendition of the final clause as “according to an assessment” is a correct rendition of the Hebrew. This leaves the final two, the omission of harm to the mother and the formed/unformed distinction. These are clearly the most important.

The LXX’s teaching about an assault upon a woman does not contradict the MT’s teaching on this question. While the LXX does not mention harm to the mother in this passage, causing harm to the mother falls readily under the other laws dealing with assault where an assailant is required to compensate his victim for damages suffered. Hence, its teaching on this question is essentially the same as the MT’s even if the presentation of it differs.

Nor does the teaching of the LXX regarding feticide contradict the teaching of the MT. The MT states that if a person kills a fetus he or she must pay a fine based upon an assessment. While the mode of assessment is not specified, evidence suggests that there existed a practice that based it upon the age of the fetus. The LXX does not contradict this. It states that if a person kills a fetus he or she must pay an assessment and it bases the assessment upon the age of the fetus.

The difference between the two is that the LXX specifies exactly how this assessment is to be carried out. It claims that when the conceptus is formed the payment must be a payment for homicide. The Hebrew is silent as to how the assessment is to be carried out so it does not deny that this is the correct way to carry out the assessment. Hence, the LXX is entirely compatible with the Hebrew here. As Scott notes, “This Greek interpretation of the passage reveals how the law had come to be applied over centuries of use, at least in the Alexandrian, Jewish community”.

The distinction made between a formed and unformed conceptus strengthens this conclusion. The distinction appears to be drawn from Greek natural philosophy. Kapparis notes, “Formation was a crucial concept in connection with the human identity of the unborn in Hippocratic medicine”. [3] He adds,

In the understanding of many, [Hippocratic doctors] the acquisition of human identity was not something that happened at birth but well before that, when the foetus was sufficiently formed to be considered a human being.[4]

Kapparis draws attention to numerous examples of the formed/unformed distinction in numerous, ancient, embryological writings. Galen for example noted that two contemporary studies, The Commentaries on the Demonstration and On the views of Hippocrates and Plato, defended the view “That what is in the womb is already a living being when it is formed in all its members”.[5] Similarly, the Hippocratic study On the Nature of the Child, affirms that a conceptus “becomes a child” when it attains form.[6] A similar view appears to be expressed by Socrates in Platonic dialogues.[7]

The formed/unformed distinction appears in numerous other works. Soranus mentions the distinction and suggests that abortions should be performed only when the conceptus is unformed.[8]

Interestingly, authors who mentioned the formed/unformed distinction tended to place its occurrence at roughly the same time, though they differed on the precise details. Diogenes Laertius informs us of the Pythagorean view.

This first creation [the conceptus] is formed in forty days, and then, in accordance with the law of harmony, the baby is perfected and born after seven, or nine, or maximum ten months.[9]

Empedocles similarly argued that formation started on the 39th day and was completed on the 49th.[10] Asclepiades noted the formed/unformed distinction and suggested that for males formation occurred between the 26th and 50th days and females were formed around 60 days.[11] The tract, On the Nature of the Child, states a male fetus is formed after 30 days and female fetuses were formed on the 42nd day.[12] The author of On Seven Months Child, states a male conceptus is formed at 40 days while a female is formed after this.[13]

Perhaps the most influential of Greek biologists was Aristotle. Aristotle developed the Hippocratic views with more sophistication. He argued that the soul was the life principle of the body. A conceptus began with a vegetative soul and then gradually acquired a sensitive soul. It became fully human when it achieved form, which occurred 40 days after conception for a boy or 90 for a girl.[14] Aristotle’s views were based on empirical investigations. Other biologists from the period also based their views on empirical observation either from miscarriages and abortions that had occurred in humans or on analogy with the embryological development with animals.[15]

There appeared then to be an established distinction in ancient Greek embryology between a formed and unformed fetus. The similarity between the Hippocratic/Aristotelian position and the LXX can hardly be a coincidence. It appears Alexandrian Jews utilised the biological information of their day, concluded that a formed conceptus was a human being and hence applied the law accordingly. In many ways this is unsurprising because even with Palestinian Rabbinical Judaism, Aristotelian embryology was often appealed to by Jewish scholars. Several examples bear this out.

The first comes from Nid. 3:2-7. Here the question arises about how the cleanliness laws recorded in Leviticus 12 apply to a woman who has miscarried. The law prescribes that a woman who has given birth to a child is unclean for forty days if the child born is a boy and eighty days if it is a girl. The question raised is when does miscarrying a fetus constitute giving birth to a child?
The answer given is that a miscarriage qualifies as the birth of a child if the conceptus has the form of a human being. It is stated that this happens on the forty-first day after conception. The justification provided for this ruling is precisely the kind of empirical studies that Greek biologists had appealed to.[16]

A second example occurs in Ker. 1:3-5. The law requires that after a woman has undergone her post-birth period of uncleanness she is required to make a sacrifice. The question is asked, does this apply if she miscarries a fetus? The answer is the same as in the previous case, after forty-one days the conceptus has form. At this stage, a miscarriage is considered the birth of a child.

The third example comes from Bek. 8:1. Here the issue is the application of Exodus 13:12 where it states that a woman must redeem her first-born son with an offering. The question arises as to whether a child born to a woman who had miscarried previously is considered the first-born son. The answer is yes but only if the miscarried conceptus had not been formed which occurs at forty-one days after conception.

Four things then are evident. Firstly, in translating the LXX Alexandrian scholars aimed at “a gloss or commentary rather than a literal rendering of the Hebrew text”.[17] They were “attempting to embody — in a widely accessible form — then-current applications of the Scriptures”.[18] Secondly, it was common practice even in Rabbinical Judaism to utilise Greek natural philosophy in applying the Torah to various issues. Thirdly, the dominant, Greek, natural philosophy placed an important stress upon form in determining the human status of a conceptus. Fourthly, the LXX appears to utilise this distinction in applying the Torah to the question of feticide.

The best explanation appears to be that Alexandrian Jews utilised Greek embryology in an effort to apply the Torah to the question of feticide. The law told them that if a person killed a fetus they had to be punished based on an assessment of the maturity of the fetus. The science of the day taught them that a conceptus was human when it attained human form around 40 days post-conception. Hence, they concluded that if a person killed a formed conceptus this was homicide

Consequently, the LXX is perhaps best seen as simply complementing the MT and offering an interpretation as to how to apply the law that it prescribes.[19] The scribes behind the LXX did not so much attempt accurate translation of the text but rather faithful interpretation of it to explain its requirements to others. The Hebrew text taught that if a man killed a fetus one was to base the punishment upon an assessment based upon its level of development. This is precisely what the Alexandrian Jews did. Utilising the empirical information of the day they made such an assessment and concluded that early in the pregnancy it constituted homicide. In order to determine if their conclusion were mistaken or correct, the time of hominisation must be assessed. It is not determined by examining the text. The text simply demands that the assessment be made. The question is whether it was made correctly. Are there good grounds for holding that a formed conceptus is a human being? If there are then the LXX does propose a faithful application of the law.

[1] Mark Scott, “Quickening in the Common Law: The Legal Precedent Roe Attempted and Failed to Use,” Michigan Law and Policy Review 1 (1996) 204.
[2] Nina Collins, “Notes on the Text of Exodus 21:22,” Vetus Testamentum 63: 3 (1993): 299.
[3] Konstantinos Kapparis, Abortion in the Ancient World (London: Gerald Duckworth and Co, 2002), 44.
[4] Ibid.
[5] Galen cited in Kapparis, Abortion in the Ancient World, 46.
[6] Kapparis, Abortion in the Ancient World, 46.
[7] Ibid., 87.
[8] Soranus I, cited in Kapparis, Abortion in the Ancient World, 43.
[9] Kapparis, Abortion in the Ancient World, 39.
[10] Ibid., 45.
[11] Ibid.
[12] Ibid.
[13] Ibid.
[14] Ibid., 17-18.
[15] Galen sums the method up, “[t]his is apparent in abortions and in the dissection of pregnant animals” Galen cited in Kapparis, Abortion in the Ancient World, 44. Similarly, the author of On the Nature of the Child, cited in Kapparis, Abortion in the Ancient World, 45 wrote, “many women aborted a boy shortly before the 30th day and it looked unformed, but those who aborted on the 30th day or afterwards, looked formed. On a girl, after the abortion, the formation of members is accordingly visible after the 42nd day”.
[16] Nid. 30b.
[17] Scott, “Quickening in the Common Law,” 205.
[18] Ibid.
[19] It is worth noting that this conclusion about the LXX being compatible with the MT would follow even if one accepts the variant reading that pllm means “as the judges determine”. On this reading it is still the case that there is a monetary fine based on some objective assessment; one made by the courts. The LXX simply specifies how the assessment is to be made. Moreover, even if, contrary to what has been argued above, one holds to the view that the law does prescribe a harsher penalty for killing the woman than it does for the miscarriage it does not follow that the law considers a fetus to be less than a human.
I noted in previously, that there is an important evidentiary difference between the two cases. In the case of the woman, an ancient Israelite judge could tell that the blow caused the death. In the case of a miscarriage, he could not. Hence, there would be a basis for a difference in punishment even if the fetus and woman were both considered human.

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

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3 responses so far ↓

  • I’m not certain if anyone mentioned this yet, but it seems to me that if a ransom was allowed for anything short of premeditated murder . . . well, then the punishment of a fee for the accidental inducing of a miscarriage would be entirely consistent with that, and would not constitute(not in and of itself, at least) that God or Jewish society considered such any less serious than other types of unintentional and/or negligent killing, which could also be punished by ransom.

    If their point is that this type of unintentional killing doesn’t carry the same unavoidable death penalty as premeditated murder, well, neither does any other type of non-premeditated killing. Therefore, I find such a statement entirely uncontroversial and unhelpful in supporting the case of those who say that God/Jewish society did not value fetuses as actual human beings.

    When you covered the ransom a couple posts back, this is just what immediately jumped into my head.

  • Little Sheperd, Yes that was the point I was trying to make, perhaps in a somewhat convoluted manner, when I argued that the punishments were not qualitatively different.

    Recent blog post: Walter Sinnott-Armstrong, William Lane Craig and the Argument from Harm Part I

  • Oh, okay. I thought that was where you were going when you began discussing the ransom. The moment that thought clicked for me was awesome.

    I’ve actually seen this specific example of punishment for harming the unborn used in conversation by pro-abortionists as an argument as to why Christians and Jews should be pro-abortion and not consider the life of a fetus to have moral importance.

    I’ve even seen skeptics use it in a manner related to the “problem of evil” to show that God does not care for the unborn in the way Christians claim, and by extension probably does not value human life as much as we claim.

    I always thought both of those uses were a stretch, only now I have specific information I can use if such comes up again in the future. Thus the “awesome!”