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Tuesday, 27 January 2009

Capital Punishment in the Old Testament: 2

In my last post I suggested that the capital sanctions found in The Torah in most cases were not intended to be carried out, that instead there operated an implicit assumption that a person who committed a serious crime had forfeited their life and hence was to pay a ransom as decided by the courts as a substitute. One area where this claim seems to make particular sense is in the laws governing adultery that occur in the book of Deuteronomy.

In the article I cited in the previous post, David Brink, addresses Deuteronomy 22: 13-21. Brink claims this teaches “that the community can and should stone to death any women whose husband finds she was not a virgin on her wedding night.”

I’ll start with two minor points. First, Brink assumes that this is addressed to “the community,” by which I assume he means contemporary communities. This is false; it is addressed to ancient Israel’s community as any reading of the opening chapters of Deuteronomy clearly show. How The Mosaic Law relates to contemporary Christians is a detailed and vexed topic of biblical hermenutics yet Brink ignores the issues and simply assumes that it addresses us directly.

Second, this text deals with adultery and not pre-marital sex. As Gordon Wenham notes pre-marital sex is addressed a few lines later in Deuteronomy 22: 28-29.[1] Wenham notes that the case Brink cites (Dt 22:13-21) deals with adultery.[2] In ANE law, betrothal was considered a binding marriage; women were betrothed young and often some time before they consummated the marriage. This case deals with betrothed women who after betrothal and prior to consummation has sex with a third party. As I note in footnote 15, this is a minor point. I am sure Brink is not allayed by the fact that she is to be executed for adultery as opposed to pre-marital sex, his problem is clearly execution related; that said, it is important that one not exaggerate what the text says.

Third, as I argued in Capital Punishment in the Old Testament: 1, when The Torah prescribes that a person be executed, the implict assumption is that this will not be carried out but some lesser finacial penalty will be inflicted as a ransom. This seems to be borne out by an examination of this law.

Brink refers to Deuteronomy 22:13-21, in particular “if … the charge is true and no proof of the girl's virginity can be found … the men of her town shall stone her to death.” What Brink doess not focus on is the sentence if the charges prove to be false; if the husband is simply slandering his bride. In this instance the husband suffers three penalties, first he is subjected to some unspecified punishment which would be at the discretion of the court. It is clear that this is not execution because the text assumes that he will continue to be married to the women in the future. Second the husband shall pay “100 shekels of silver” to the father and lose his right to divorce. Wenham explains the rationale for this price:
The husband claims that by giving him a dud wife (for his 50 shekels) his father in law had in effect stolen the sum from him. Two legal principles are therefore applicable those dealing with theft and false witness. The penalty for theft of deposited property is double restitution according to Ex xii7. But according to Deut xix19 and other ancient near eastern laws false witnesses were punished with the punishment the accused would have suffered if substantiated”[3]
This explains the 100 shekels; the problem is that it raises an issue which Wenham is aware of. “[A]ccording to Deut xix19 false witnesses were punished with the punishment the accused would have suffered if substantiated.” If this law meant that substantiation of the husband's accusation would actually result in the execution of his wife then the failure to substantiate his claim would mean that the husband would be executed, but he is not. Apart from the fine to the father, his other punishment is an unspecified punishment (which is not execution) and loss of his right to divorce. It appears then that the actual execution of the woman was not envisaged. Wenham suggests then a substitute must have been envisaged in this text if it was to be read as coherent and consistent with the other laws in Deuteronomy.

This conclusion seems to be strengthened by several other passages that deal with the same topic. Two chapters later, Deuteronomy 24:1-5, The Torah deals with a case where a man divorces his wife, “who becomes displeasing to him because he finds something indecent about her.” This same passage is cited by Jesus in the synoptic gospels. David Instone-Brewer has argued, convincingly, that the reference to “something indecent” is interpreted by Christ as referring to adultery.[4] This passage then deals with the same situation as Deuteronomy 24; the text tells us she is divorced and by implication loses her mohar money but is silent on any other punishment. However, the woman is clearly not executed as she marries another man in v 2. This makes sense if the capital sanctions for adultery function as admonitory devices and in practice, a ransom was made as a substitute (possibly alongside a lesser sentence) but it does not make sense if a women who was discovered to have committed adultery by her husband was required to be executed.

A similar picture emerges in a second passage Wenham cites. In the book of proverbs the author warns his son about adultery and refers to the judicial consequences that will ensue if he does not heed this warning.[5] It is clear that a ransom substitute is envisaged, moreover, it suggests that if the husband refuses to accept a ransom payment the adulterer will suffer blows and disgrace, note that execution is not envisaged. In fact, the discussions in Proverbs suggest the consequences will be financial loss and social ostracism. This all makes sense on the hypothesis mentioned in my last post, but does not make sense if adultery was in fact punished by death. Wenham notes this point and draws the conclusion that in Deuteronomy 22:13-21 the law envisaged a substitute.

In conclusion, sceptics like David Brink often cite passages like Deuteronomy 22:13-21 in horror to discredit Christianity. However, they erroneously assume superficial literalistic renditions of the passages in question. In this instance, the genre of the passage, in light of the common ANE legal practices and customs suggests that capital sanctions function as a kind of hyperbole and in practice a ransom was paid and the punishment mitigated.

This practice is implicitly assumed in many of the Old Testament laws about homicide. Further, reading it this way renders the laws in Deuteronomy consistent with each other and with the reference to adultery in the book of Proverbs. I will add finally, that it also coheres better with our moral intuitions in the way a literalistic reading does not.

[1] Wenham points out that the same law is also spelled out in Exodus 22:15 and it is treated as a relatively minor offense; the penalty is simply that the man must pay the “mohar” to the bride's father. A mohar was security money (50 shekels) that the groom paid to the bride's father. It was held in trust for the woman in case the man later abandoned her or divorced her without just cause. See the discussion in David Instone Brewer Divorce and Remarriage in the Bible: The Social and Literary Context (Grand Rapids: Eerdmans, 2002).
[2] Gordon Wenham “Bethulah: A Girl of Marriageable Age” Vetus Testamentum 22 (1972) 326-348.
[3] Wenham “Bethulah: A Girl of Marriageable Age” 332.
[4] Brewer Divorce and Remarriage in the Bible.
[5] Proverbs 6.

Capital Punishment in the Old Testament: 1


  1. I agree that at times the death penalty could be exchanged for a fine, but that the death penalty was given as the "documented punishment" suggests that it was an appropriate punishment for the crime. Talion gives appropriate but also maximum penalties. Exchange for a fine may allow the offended to offer mercy but the offender still receives some punishment.

    The comment about murderers not being able to trade execution for a fine would then be saying that mercy is not able to be given for murder (Deut 19).

    And we see in the pentateuch that people were put to death for blaspheming Yahweh and collecting wood on the Sabbath (an issue of rebellion).

    While I agree that this is written for the Israelites (though it is still instructive for us), the argument against capital punishment is because men see punishment as immoral yet they view sin very lightly. Adultery for example is extremely destructive for individuals and society. I don't see execution as necessarily an excessive punishment.

    I am not certain the false witness condition applies to a deflowered bride. False witnesses experience the punishment because the do so knowingly, ie they know they are lying and that the accused will get such punishment. A husband doesn't know, he suspects. If his suspicions are correct the punishment happens, if he is incorrect he suffers, but not to the same degree because of the absence of intentional deceit.

  2. It seems to me like there are two ideas in tension here:
    1 penal or punative ethics, and
    2 restitution

    The idea that we need to 'punish' those who do 'wrongs' leads to a system of offences and punishments, and enforcement to catch wrongdoers, courts to try them and punishers to inflict the punishment.

    The idea of restitution is that right and wrong, in itself, does not justify any penalty or remedy: something must not only be wrong, it must cause someone else a loss as well. The remedy for the wrong is for the wrongdoer to pay restitution to the damaged party in the amount of the loss, or, in exceptional cases, additional damages. The outworking of this ethic does not require police (the damaged parties seek any remedies they believe they have that are worth chasing) or jails, but does require access to judicial services and to debt collection services.

    To me it seems like the Hewbrew legal system was primarily functioned as a restitutionary system: without loss resulting, most wrongs were without penalty, either through lack of enforcement (no police force and no victim mean no case to answer), or lack of any institutionalised system of punishment (no jails), and as Matt points out, no significant use of capital punishment either.


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