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Published: “Feticide, the Masoretic Text, and the Septuagint” in The Westminster Theological Journal

July 19th, 2012 by Madeleine

Matt’s article “Feticide, the Masoretic Text, and the Septuagint” is now available in Vol 74, No. 1 – Spring 2012 of The Westminster Theological Journal.

The Westminster Theological Journal

An abstract of “Feticide, the Masoretic Text, and the Septuagint” follows:

A long Christian tradition of moral reflection on feticide interprets feticide, the killing of a formed conceptus, as a violation of  God’s law against homicide. In her book, Our Right to Choose, Beverly Harrison attempts to undercut this tradition of interpretation.

Harrison alleges that the Alexandrian argument is based on a mistranslation of the Hebrew text. Harrison’s argument is based on apparent discrepancies between the Septuagint (LXX) and the Masoretic Text (MT) over the rendering of Exod 21:22-25. She makes three claims. Firstly, she suggests that Christian prohibition of feticide is based upon the LXX. Secondly, that the MT, which in her view accurately captures the original law, did not consider feticide a major crime. Thirdly, she argues that the LXX mistranslates this law and incorporates a prohibition of feticide into the text that is not there.

In response I examine whether each of Harrison’s contentions is correct. From the outset I grant Harrison’s assumption that the MT accurately captures the original and that the LXX is the later translation. I also grant her point that the argument has origins in Alexandrian Judaism and the LXX. The discussion then asks whether each of Harrison’s other claims is correct. Does the MT consider feticide a minor crime? And does the LXX misinterpret the original?

I defend a negative answer to both questions.

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11 responses so far ↓

  • Hmm. It’s one thing to deny that feticide (as in a voluntary abortion) is an act of homicide; it’s quite another thing to say that it’s only a minor crime to engage in a violent brawl with a man, so battering the man’s pregnant wife in the process that you also kill the fetus. Your average pro-choicer would undoubtedly view the latter act as a serious crime (along with most other acts that kill a fetus against the mother’s will).

  • Koysta, I agree. However in the article I argue the MT does not deny feticide is homicide. In fact I argue the MT and LXX are not incompatible and the LXX is a legitimate interpretation of the MT.

  • For someone unfamiliar with the relevant languages, what’s a good translation of the Exod 21: 22-3? More particularly, where would you say that the KJV goes wrong?

    “If men strive, and hurt a woman with child, so that her fruit depart from her, and yet no mischief follow: he shall be surely punished, according as the woman’s husband will lay upon him; and he shall pay as the judges determine. And if any mischief follow, then thou shalt give life for life. ”

    As it’s translated here, it strikes me as highly curious verse, especially in a context in which death penalties are so liberally distributed. By modern lights, it even seems to trivialize the death of the fetus–as if it weren’t “mischief” enough!

  • The KJV is actually not bad, the word “mischief” however is misleading because in modern english it suggests a trivial act or one that is kind of humorous. The hebrew in the MT is a word “ason” this word is somewhat rare and is used only in Genesis where it refers to Jacob’s fear that his son has been torn apart by wild animals or may be executed in Egypt. The real issue is the “as the judges determine” I think a better translation is “according to an assessment”.

  • The curiosity remains even if we replace “mischief” with “horror,” or “evil consequence”: as if the death of the woman’s fetus isn’t enough of a horror. On what further evil consequence might/should the additional penalty of death depend? What sorts of additional consequences might the author have in mind?

    As a somewhat related issue, why does the sacred text single out such a peculiar event to address? It’s not as if this sort of scenario is a really common one (i.e., where a pregnant woman has a miscarriage because she happens to get roughed up too much in a brawl between her husband and another man). One wonders why the law doesn’t simply spell out consequences for any person (husband, stranger, or otherwise) who causes a pregnant woman to suffer a miscarriage against her will? I’m sure it is far more common for a woman to suffer a miscarriage because she’s directly assaulted (as opposed to be battered as a bystander to someone else’s fight).

  • btw, please overlook my careless usage of “assault” and “battery.” I’m not trained in law and probably should’ve avoided these terms.

  • Are you going to get permission to post it here?

  • The curiosity remains even if we replace “mischief” with “horror,” or “evil consequence”: as if the death of the woman’s fetus isn’t enough of a horror. On what further evil consequence might/should the additional penalty of death depend? What sorts of additional consequences might the author have in mind?

    Presumably the “mischief” refers to the death or harm to the women, so the picture is this, if you are attacking a particular person and accidentally strike a pregnant women you pay her compensation for the lost fetus. If you kill the women you pay proportionate compensation for causing injury or loss of life.

    As a somewhat related issue, why does the sacred text single out such a peculiar event to address? It’s not as if this sort of scenario is a really common one (i.e., where a pregnant woman has a miscarriage because she happens to get roughed up too much in a brawl between her husband and another man).

    This I think has to do with the context the law is mediated in. The case of a women struck so she miscarries is a standard paradigm case in the legal codes of the day. A similar paradigm occurs in the Hittite laws, code of Hammurabi, Middle Assyrian laws and so on, so it appears to have been a standard example used in such texts.
    Also your response assumes the cases in ANE were supposed to be common every day cases because they were designed to directly guide everyday cases. I am not sure this is true the evidence suggests for example these codes did not function that way, and the cases are not cited or appealed to in court rulings, though the principles one elaborates from reflecting on them might be applied with a degree of flexibility. The purpose of the laws is to illustrate moral principles not proscribe law.
    Perhaps an analogy helps here: in moral philosophy there is a lot of discussion of the Trolley problem, a hypothetical case where a person is on a trolley which is out of control and the break is malfunctioning , there is a fork in the track , if the trolley veers left it will hit 10 people if it veers right it will hit 5, you can pull a lever to determine which fork it goes down, which do you pull? Now I suspect in real life one almost never comes across cases like this, yet in moral philosophy it’s a standard case. Why, because the case is used to illustrate certain moral principles and elucidate careful thinking about morality. Similarly in the literature on abortion there is a case where a person wakes up plugged into a famous violinist, the society of music lovers has kidnapped you and plugged you into the violinist because your blood type matches his. Now again no one claims cases like this happen very often the point is to reflect on the nature of what a right to life entails and the relations underwhich one can let others die and so on. My understanding is that ANE case law functions more like these sorts of cases do than they do modern case law. This was something I did not appreciate enough when I wrote that article.

    One wonders why the law doesn’t simply spell out consequences for any person (husband, stranger, or otherwise) who causes a pregnant woman to suffer a miscarriage against her will? I’m sure it is far more common for a woman to suffer a miscarriage because she’s directly assaulted (as opposed to be battered as a bystander to someone else’s fight).

    See above,
    On this issue interestingly I argue the case law is probably revising the paradigm for a reason. Under the normal paradigm in other ANE codes the case addresses a situation where the women is struck directly by the man, the Hebrew alters it slightly making it a case where the women is a third party the victim of an assault aimed at someone else. I suspect this is to provide a paradigm for situations where a person is struck unintentionally and yet the attacker was intending to harm someone else. Cases like this raise interesting legal questions even today.

  • Matt, these are nice answers. They do raise additional questions though. With the observation that the Exod. 21:22-3 case is functioning like a thought experiment in moral philosophy, what do you think are the features that are supposed to be highlighted by this case. The value of thought experiments in moral philosophy is that they single out specific factors and abstract from all the other variables that threaten to complicate the normative situation.

    Instead of dealing with a fetus, the case could easily have instead featured (as an innocent bystander who gets killed in the brawl) a nursing infant in the mother’s arms, a ten-year old son, or a she-goat. Do you expect that these cases would have altered the sentence? In which ways?

  • Kostya, like I said the reason the law uses this case is that it was a standard case used in legal texts of this style at this time. Its the same reason that if I wrote an article on ethics I would discuss the trolley problem ,not because I think there are not other examples which might illustrate the point, but because that’s the standard example used in the literature and so if I am to write on the topic in current 21st century moral philosophy its the example I use. Its the same reason to why so many articles on abortion discuss famous violinists, because the classic article by Thomson uses that particular case and not another.

    Obviously, the Torah does not occur in a cultural vacum its writing in an already existing legal context where case laws of this sort and legal customs already exist and address the issues within that context. For that reason Deuteronomy uses the standard format for covenants which existed at that time and exodus uses similar legal paradigms in articulating legal principles. Even if the principles articulated often differ from reform and revise the existing customs.

  • Yes, but the interesting question remains: what does the fact that it was a fetus tell us? Presumably the sentence would have been the same if, instead of a fetus, the husband’s horse were killed. However, if instead of a fetus, the husband’s seven-year-old son were killed as an innocent bystander, quite plausibly the judgment might have been different. Maybe it wouldn’t have included the special consideration of whether any “mischief followed.”

    We can give plausible answers for why Thomson used the example of a violinist (as opposed to a horse or a janitor), or why Foot originally constructed a case involving a trolley–as well as why the trolley feature has proven so useful to moral philosophers and psychologists. Likewise, we can reasonably ask why legal scholars of the day originally constructed and found it useful to use a scenario involving a fetus, as opposed to a horse or a seven-year-old son.