Is anyone buying this? I mean, clearly what I should do is leave with the rest of the class and talk to my lecturer later. [Doh!]

Illustrations of this sort are often used in conflict of laws or legal interpretation classes to show that what prima facie appears to be a contradiction between two pieces of legislation actually is not. This is because imperatives occur in contexts where commonly accepted qualifications, riders, priorities, idioms, etc are assumed to be understood; implicit background beliefs are in play.

We can see this clearly in the example above. I know it is unlikely my lecturer wants his students to obey his instructions to the extent that they burn to death. I know this because I know something of his purposes and of his character. I know him to be fairly decent, humane and not one to issue arbitrary, irrational commands. I know also something of the weights involved in the issues. For example, I know the fire policy is university policy and it concerns the issue of safety – both the physical safety of students as well as its own, it does not want to be sued or prosecuted or subject to critical public scrutiny. I know that the lecturer’s authority is derived from university authority and so his instructions cannot contradict or override it. I also know that the reason he gave the instruction for me to stay behind in class was because he wanted to work with me in the future to ensure the sales of his book make the top 10 list. So from all of this I can safely conclude that he did not mean for me to follow his instructions on pain of death today.

Of course if I already believed my lecturer to be a petty, arbitrary, narcissistic, cruel bully, capable of anything who routinely issued commands with the purpose of harming, maiming and destroying students (and if I suspected he wanted to take my essay and publish it as his own so as to keep all the book royalties for himself) I might take a different approach as to how I read his instructions together. But it would be uncharitable of me in excelsis to adopt this assumption of his character as the default one to reason from.

Taking these contextual factors together, along with a basic grasp of the English language, its idioms and a dose of common sense it is not that hard to navigate apparently conflicting instructions.

I raise this because a site ironically called “Common Sense Atheism” recently put up a short post entitled 6 Questions with which to Stump Conservative Christians. I was extremely underwhelmed by the questions and was left wondering if the author had actually read any Christian works above Sunday School level on Christian ethics, biblical interpretation and so on (and clearly had not read very far into this blog) but I found one of the questions stood out en stupidus maximus (that’s a legal latin maxim meaning it was so stupid it had to be taken out). Question 4 asks,

“The Bible says to worship God (obviously) and to obey your mother and father, but what do you do if your parents tell you to worship other gods?”

Here, the atheist is trying to establish a contradiction in the commands God issues and from this contradiction we are presumably supposed to concede that Christians are irrational or that God does not exist or some such thing (and, of course, any Christian reading it is supposed to be “stumped”).

No Christian I know would be even momentarily stumped by this because the answer is obvious: in such a case you should disobey your parents and worship God; end of. I find it no more paralysing than the issue of whether I should leave class when the fire alarm sounds or stay to talk to my lecturer. In both cases, I understand that the command cannot sensibly be understood as an absolutely unqualified imperative. I doubt very much that God, out of allegiance to Him, wants us to give up allegiance to Him.

Of course if one wanted to make God look silly and arbitrary one could interpret it this way, just as you could attribute silly interpretations of what my lecturer meant such as intepreting his instructions as a command to wait for him even if I get burned alive in a fire or that my lecturer does not exist, but why would you?

If you think I am just picking on one unfortunate atheist’s example I beg to differ. When Matt was an undergrad at the University of Waikato a leader of the campus rationalist society confronted him with Isaiah 30:26,

The moon will shine like the sun, and the sunlight will be seven times brighter, like the light of seven full days, when the LORD binds up the bruises of his people and heals the wounds he inflicted.

The rationalist then informed Matt as to what the temperature of the sun was. He multiplied that number by seven and then noted that if it were to become that hot then world would burn to a crisp. He concluded that the Bible taught that heaven was hotter than hell. Matt’s initial inclination was to laugh and asked the guy if the exchange had “brightened up his day and warmed his heart.” It turned out that the example came from a highly regarded book by a scientist critiquing creationism, ironically entitled “Telling Lies for God: Reason vs Creationism” [scientists really really shouldn't pontificate on theology]. The book had recieved endorsements from leading Australian Clergy. [I am reminded of Rob Muldoon's position on Australians]

Then there was a discussion I had on Debunking Christianity’s “Madeleine Flannagan is Happy to be Treated as Women Were in the Bible!“ where John Loftus pointed to Deuteronomy,

“Deuteronomy 22:23 If a man happens to meet in a town a virgin pledged to be married and he sleeps with her, 24 you shall take both of them to the gate of that town and stone them to death—the girl because she was in a town and did not scream for help, and the man because he violated another man’s wife. You must purge the evil from among you.

Deuteronomy 22:28 If a man happens to meet a virgin who is not pledged to be married and rapes her and they are discovered, 29 he shall pay the girl’s father fifty shekels of silver. [c] He must marry the girl, for he has violated her. He can never divorce her as long as he lives.”

Now Matt had written several posts on this atheist chestnut which saw me get embroiled in an exchange with both Loftus and Stephen Carr. Carr surmised that,

“If a woman is threatened with a knife, told she will be killed if she screams out, and does not scream out, there will always be a Christian to say , and I quote ‘isn’t she a part of the problem’?”

Apparently the non-offensive-to-God way to rape a woman is to simply render her incapable of screaming because God’s issue is with the screaming and not the raping…

Apparently when the bible lays down case laws, it cannot simply lay down a paradigm. It must spell out every possible nuance, qualification, exception, situation, application to analogous situations and so on.

Apparently if it does not do this then it is denying opposition to the act – now even modern case law precedents do not function like this and legislation is never drafted this way but apparently this is the way to read Biblical law.

Seriously.

Perhaps Carr is a too easy a target. Atheist philosopher Michael Martin makes a similar interpretation of Deuteronomy,

“it is assumed that in all cases that a rape victim could cry for help and if she did, she would be heard and rescued. Both of these assumptions are very dubious and sensitive to the contextual aspects of rape.”

I am at a loss to understand why atheists insist on reading these texts like a lawyer with Aspergers Syndrome in search of a convincing technicality by way to circumvent the spirit and intendment of the law? I mean why? We can all handle instructions that conflict with fire alarms going off, we don’t interpret modern laws like this, so why do atheists (and some Christians) switch to such silly anachronistic readings when the instructions are attributed to God?

I suspect the issue is the background factors I mention above. Many atheists believe God is a petty, arbitrary, narcissistic, cruel bully, capable of anything who routinely issues commands with the purpose of harming, maiming and destroying people. They believe that the bible is obviously silly, irrational, oppressive and supports contradictory absolutism in the family, is anti-women (and so obviously supports rape) is full of scientific absurdities (and so Isaiah was talking about cosmology) and so on.

When you have a pre-conceived notion as to what you want the text to mean – be it an uncharitable reading or what you think or have heard that the text teaches – I suppose the silly reading is congenial. What this tells us is that the reading of the text is not what leads atheists (and some Christians) to their conclusions, rather it is their conclusions lead them to read the text this way.

Here the victim of rape is as treated the property of the father. Since the rapist has despoiled the father’s property he must pay a bridal fee. The woman apparently has no say in the matter and is forced to marry the person who raped her. Notice also if they are not discovered, no negative judgment is forthcoming. The implicit message seems to be that if you rape an unbetrothed virgin, be sure not to get caught.[1]

In the post I noted that the word translated rape is tapas which simply means “to grab” or “hold;” the term itself is neutral as to whether this involves force. It can be used in a context where it is clear that force is involved but it also can be used in a context where no force is involved. All the text states then is that a virgin is grabbed by a man. I went on to argue that the context provided reasons for thinking that what was envisaged was actually a seduction.

In discussing this I noted that a few verses prior to this one the text does envisage a rape. In the immediately preceding passage in Deuteronomy 22:23-27, the word chazak is used instead of tapas in reference to a bethrothed woman who screamed for help when a man attempted to have sex with her; chazak suggests a violent seizure.

In regards to this text, Martin contends that “when rape is condemned in the Old Testament the woman’s rights and her psychological welfare are ignored.”[2] Martin argues

In the case of the rape of a betrothed virgin in a city, the Bible says that both the rapist and victim should be stoned to death: the rapist because he violated his neighbor’s wife and the victim because she did not cry for help (Deut. 22: 23-25). Again the assumption is that the rapist despoiled the property of another man and so must pay with his life. Concern for the welfare of the victim does not seem to matter. Moreover, it is assumed that in all cases that a rape victim could cry for help and if she did, she would be heard and rescued. Both of these assumptions are very dubious and sensitive to the contextual aspects of rape.

On the other hand, according to the Bible, the situation is completely different if the rape occurs in “open country.” Here the rapist should be killed, not the victim. The reason given is that if a woman cried for help in open country, she would not be heard. Consequently, she could not be blamed for allowing the rape to occur. No mention is made about the psychological harm to victim. No condemnation is made of a rapist in open country, let alone in a city, who does not get caught.[3]

There are several points packed in here. First Martin contends that these passages teach that rape is an offence against a man’s property and do not condemn it out of concern for the woman’s welfare. Second, Martin suggests that the text does not condemn rapists who do not get caught. Third and perhaps most significantly, Martin suggests that the passage makes “dubious” assumptions about rape; it assumes, for example, “that in all cases that a rape victim could cry for help and if she did, she would be heard and rescued.” [Emphasis added] Martin states that this is something that fails to be sensitive to contextual factors of rape.

This last point in particular is often emphasised by sceptics. To take a common example, suppose a rapist puts a knife to a woman’s throat and commands her not to scream. If this happens in the city she will not cry out and the passage, so the sceptics allege, will hold the woman unjustly responsible for her own rape.

I think each of these points are mistaken.

Turning to the first point, Martin contends that the passage teaches that rape is merely a property offence against the husband and is not concerned with the welfare of the woman. To asses the claim it is worth looking at the passage he refers to,

If a man happens to meet in a town a virgin pledged to be married and he sleeps with her,24  you shall take both of them to the gate of that town and stone them to death–the girl because she was in a town and did not scream for help, and the man because he violated another man’s wife. You must purge the evil from among you.25  But if out in the country a man happens to meet a girl pledged to be married and rapes her, only the man who has done this shall die.26  Do nothing to the girl; she has committed no sin deserving death. This case is like that of someone who attacks and murders his neighbour, for the man found the girl out in the country, and though the betrothed girl screamed, there was no one to rescue her. (Deuteronomy 22:24-27 NIV)

Two points need to be noted here. First, the text states that people who rape should be executed (I have argued that capital sanctions like this were not always intended to be taken literally in Capital Punishment in the Old Testament). Martin suggests that the fact that adultery is a capital crime means that this is merely a property offence. He states the “assumption is that the rapist despoiled the property of another man and so must pay with this life.” Actually the converse is true; Christopher Wright notes this point,

The fact that the legal penalty for the wife who commits adultery is execution weighs strongly against the idea that wives in OT Israel are legally no more than the property of their husbands. If adultery is merely an offence against another man’s “property” why destroy the property as well as punishing the guilty man? Furthermore, it would be quite exceptional, in as much as no other property offence in the OT is punishable by death.[4]

The second point to note is that Martin’s contention seems to be explicitly contradicted by the text in v 26. In this passage it states that rape is, “This case is like that of someone who attacks and murders his neighbour.” The text compares rape to a violent assault, a murder, not theft.

Martin’s second point fares no better. Martin seems to argue that the text ignores the “woman’s rights and her psychological welfare” because “no condemnation is made of a rapist in open country, let alone in a city, who does not get caught.” It is hard, however, to see the force of this; all legal codes will only punish people who commit crimes once they are caught. Current New Zealand law on rape, for example, does not punish or condemn people who are not caught, tried and proven guilty of rape. No one thinks that this practice of observing due process is contrary to the rights of rape victims and correctly so, the fact that a woman is the victim of a heinous crime does not automatically cancel out the due process rights of anyone accused of a crime. The same is true here, the law punishes only those caught; if a person has not been caught committing a crime then the state does not know who committed the crime. To call the failure to punish the perpetrator of an unsolved crime a violation of a woman’s rights is hard to take seriously.

Moreover even if one were to take this line of argument seriously, it proves too much. In Deuteronomy, for example, The Torah refers to a situation where a man has been murdered and the authorities, after careful investigation, cannot determine who committed the crime. The result is that the unknown perpetrator is not punished. Are we to infer from this that The Torah victimises men and treats them as property and expresses a sexist anti-male sentiment?

This brings us to the final and perhaps most significant point. Martin notes that the law assumes “that in all cases that a rape victim could cry for help and if she did, she would be heard and rescued. Both of these assumptions are very dubious and sensitive to the contextual aspects of rape.” A rhetorical question will more vividly express this point; what if a women could not cry out, what if the rapist in a city put a knife to a woman’s throat and ordered her not to scream, what if a woman was set upon suddenly and was unable to scream? In these situations the rape occurs in a city and the woman does not scream for help. The above law then seems to teach that she is should be treated as guilty of a serious crime. If this is the case then surely this is insensitive to the rape victim? To have a law that condemns a woman in this situation is to have a law that ignores the specifics of the situation; it, in Martin’s words, ignores the “contextual aspects of rape.”

I am inclined to agree that if the law condemned a woman in these kinds of contexts it would indeed be unjust. The question needs to be asked, however, is does it? Is it plausible to assume that the law is intended to be applied in such a rigid, a-contextual, fashion?  I think the answer is no.

Deuteronomy is an Ancient Near Eastern Legal text; it therefore is part of a literary genre from that period of time. We are aware of other texts from the same genre such as the ancient Hittite Laws, Middle Assyrian Laws and Code of Hammurabi, and its important to note that legal codes written in this Genre differ significantly from modern legal codes.  Hiller notes,

[T]here is no evidence that any collection of Near Eastern laws functioned as a written code that was applied by a strict method of exegesis to individual cases. As far as we can tell, these bodies of laws served educational purposes and gave expression to what was regarded as just in typical cases, but they left considerable latitude to local courts for determining the right in individual suits. They aided local courts without controlling them.[5]

The same point is made by Raymond Westbrook in his comparative study of Ancient Near Eastern Legal Codes. He notes that such laws “reflect the scribal compilers’ concern for perfect symmetry and delicious irony rather than the pragmatic experience of the law courts.”[6] The method used in legal texts was “to set out principles by the use of often extreme examples.” Christopher Wright calls this “paradigmatic law,” which he explains as “the detailing of specific circumstances with the view to giving judges basic principles and precedents on which to evaluate the great variety of individual cases that may come before them.”[7]

Once the genre is understood it is not hard to see the flaw in Martin’s argument. Martin assumes that the law is a rigidly literal rule that inflexibly applies to all cases. In fact, the law probably did not function this way nor was it intended to. Instead it functioned as kind of paradigm illustrating a principle. The principle was this; women who have sex with a man are not to be considered adulterers or immoral if they do not consent. If it cannot be established whether a woman consented to a sexual act then she should be presumed innocent. Rape is not adultery, it is rather a serious assault or an attempted murder. At a more general level the case law vividly illustrates the principle that culpability entails consent.

[1] Michael Martin “Atheism, Christian Theism, and Rape” accessed 27 September 2009.
[2] Ibid.
[3] Ibid.
[4] Christopher Wright International Biblical Commentary: Deuteronomy, (Massachusetts: Hendrickson Publishers, 1996 ) 254.
[5] Delbert R Hillers Covenant: the History of a Biblical Idea (Baltimore: The John Hopkins Press, 1969).
[6] Raymond Westbrook “The Character of Ancient Near Eastern Law” in The History of Ancient Near Eastern Law Vol 1 ed Raymond Westbrook (Boston: Brill Academic Publishers, 2003) 74.
[7] Christopher Wright Deuteronomy 244.

Loftus is not alone in contending that the Bible teaches that rape victims had to marry their rapists. Michael Martin states that,

when rape is condemned in the Old Testament the woman’s rights and her psychological welfare are ignored.[15] For example: “If a man meets a virgin who is not betrothed, and seizes her and lies with her, and they are found, then the man who lay with her shall give to the father fifty skelels of silver, and she shall be his wife, and he may not put her away all of his days (Deut:22; 28-29).” Here the victim of rape is as treated the property of the father. Since the rapist has despoiled the father’s property he must pay a bridal fee. The women apparently has no say in the matter and is forced to marry the person who raped her. Notice also if they are not discovered, no negative judgment is forthcoming. The implicit message seems to be that if you rape an unbetrothed virgin, be sure not to get caught.[1] [sic]

Meredith Kline: “The seducer of an unbetrothed virgin was obliged to take her as wife, paying the customary bride price and forfeiting the right of divorce” (Treaty of the Great King: The Covenant Structure of Deuteronomy, p. 111).

Matthew Henry: “. . . if he and the damsel did consent, he should be bound to marry her, and never to divorce her, how much soever she was below him and how unpleasing soever she might afterwards be to him” (Commentary on the Whole Bible, ad loc.).

J. A. Thompson: “Seduction of a young girl. Where the girl was not betrothed and no legal obligations had been entered into, the man was forced to pay the normal bride-price and marry the girl. He was not allowed, subsequently, to send her away (Deuteronomy: Introduction and Commentary, Tyndale Series, p. 237).
In Israel’s Laws and legal Precedents (1907), Charles Foster Kent (professor of Biblical Literature at Yale University) clearly distinguished between the law pertaining to rape in Dt. 22:25-27 and the law pertaining to seduction in Dt. 22:28-29 (pp. 117-118).

Keil and Delitzsch classify Deuteronomy 22:28-29 under the category of “Seduction of a virgin,” comment that the crime involved was ‘their deed” – implying consent of the part of both parties – and liken this law to that found in Exodus 22:16-17 (Biblical Commentary on the Old Testament, vol. 3, p. 412).

John Calvin: “The remedy is, that he who has corrupted the girl should be compelled to marry her, and also to give her a dowry from his own property, lest, if he should afterwards cast her off, she should go away from her bed penniless” (Commentaries on the Four Last Books of Moses Arranged in the Form of a Harmony, vol. 3, pp. 83-84.

J. C. Connell: “Although she consented, it was still his responsibility to protect her from lifelong shame resulting from the sin of the moment by marrying her, not without payment of the regular dowry” (“Exodus,” New bible Commentary, ed. F. Davidson, p. 122).

Adam Clarke: “This was an exceedingly wise and humane law, and must have operated powerfully against seduction and fornication; because the person who might feel inclined to take advantage of a young woman knew that he must marry her, and give her a dowry, if her parents consented” (The Holy Bible . . . with a Commentary and Critical Notes, vol. 1, p. 414).

Alan Cole: “If a man seduces a virgin: . . . he must acknowledge her as his wife, unless her father refuses” (Exodus: An Introduction and Commentary, Tyndale Series, p. 173).

James Jordan: “the punishment for the seducer is that he must marry the girl, unless her father objects, and that he may never divorce her (according to Dt. 22:29)” (The Law of the Covenant, p. 148).

Walter C. Kaiser, Jr.: “Exodus 22:16-17 takes up the problem of the seduction of a maiden who was not engaged . . .. Here the seducer must pay the ‘bride-price’ and agree to marry her” (Toward Old Testament Ethics, p. 107).[16]

They [rape and seduction] coincide when a man employs force in order unlawfully to violate a virgin. This force is employed sometimes both towards the virgin and towards her father; and sometimes towards the father and not to the virgin, for instance if she allows herself to be taken away by force from her father’s house. Again, the force employed in rape differs in another way, because sometimes a maid is taken away by force from her parents’ house, and is forcibly violated: while sometimes, though taken away by force, she is not forcibly violated, but of her own consent, whether by act of fornication or by the act of marriage: for the conditions of rape remain no matter how force is employed.[18]