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Wednesday, 8 April 2009

The Foundations of the Alexandrian Argument against Feticide Part I

Implicit, if not overtly explicit, in much historic Christian moral reflection on feticide is a simple three-premise position. Firstly, that there is a divine law prohibiting homicide, the killing of a human being without adequate justification; secondly, a formed conceptus, a fetus, is a human being; and thirdly, that in all or most cases of feticide, justification for homicide is not forthcoming. In this study, I will refer to this line of argument as the Alexandrian argument, naming it after the Alexandrian Jews from whom it originated.

The Alexandrian argument receives one of its clearest expositions by Philo. In his commentary on the Decalogue, The Special Laws, Philo argues that the law of God considered the killing of a formed conceptus to be homicide and hence a violation of the sixth commandment. [1] With this conclusion established, Philo offered an a fortiori argument against the widespread practice of infanticide in his day. If killing a fetus before birth were homicide, then killing children after birth would be as well. Therefore, the law condemned infanticide, like feticide.

Like Philo, numerous, early-Christian writers appealed to feticide in a fortiori arguments against infanticide and appropriate the argument Philo expounds, examples include Athenagoras,[2] Tertullian[3] and Minucius Felix.[4] This argument against infanticide is also found in the Second-Century catechism The Apostolic Constitutions.[5] And is formulated by Pope Stephen wrote in 887 A.D.[6] Allusions to the Alexandrian argument also appear in the writings of Jerome,[7] Lactantius,[8] Gregory of Nyssa,[9] Cyril of Alexandria,[10] Theodoret,[11] Ambrosiaster[12] and Augustine of Hippo.[13]

In the early Middle Ages the Alexandrian argument found its way into penitential literature, particularly the collections, The Canones Hibernenses (675 A.D), Bigotian Penitential,[14] Anglo-Saxon Penitentials (668-690 A.D), Capitula Deacheriana, Canoes Gregorii and Penitentiale Discupulus Umbrensium. Later through Ivo of Chartres, it was incorporated into official canon law in the The Concordia of Gratian (1160), the Compilationes of Bernard of Pavia and the official Decretals of Raymond of Pennaforte. The position also found its way into civil law; Bracton and Fleta appropriated the argument into English common law and on the continent, Canon lawyers: Ionnaes, Teutonicus, Henricus de Sequsio and the thirteenth-century jurists reinterpreted Roman law in light of Canon law.

The claim that feticide was homicide was also defended by medieval theologians such as Peter Lombard (1095-1160), Albert the Great (1206-1280),[15] Thomas Aquinas.[16] [17] It was assumed in the causitical discussions of John of Naples and Antoninus. This led to a debate about the licitness of therapeutic abortion amongst his contemporaries and later theologians.

The argument is also ecumenical. It is alluded to by Luther,[18] defended by Calvin,[19] Melanchthon[20] and Puritan writers Gullimeau in Child Birth[21] and William Gouge.[22]

What is important for this study is that this debate demonstrates that casuistry of this sort was engaged in with a background acceptance of the Alexandrian argument. In her book Our Right to Choose, Beverly Wildung Harrison attempts to undercut this traditional of interpretation. Harrision alleges that the Alexandrian argument is based on a mistranslation of the Hebrew text. Harrison states,

[W]hen the Pentateuch was translated into Greek by Alexandrian Jews in the second century, this Septuagint translation of Exodus 21:22 introduced a distinction between an unformed and a formed fetus uncharacteristic of the original Hebrew text. As a result, the original proscription against causing the death of a pregnant woman was transformed by translation into a command to exact the same penalty if a “formed” fetus died. Roman Catholic historian John Connery acknowledges that it was this mistranslation that motivated the Jewish thinker Philo Judaeus’s rigorous tract Two Ways that was adapted by the Christian writer of the Didache. The result, which Connery also grants, was that the mistranslation of the Septuagint influenced Christians far more than Jews. As Connery observes “Rabbinical Judaism, after the destruction of the temple, reverted to its own traditional interpretations of life in the womb as … part of the mother’s body”.[23]

Harrison claims to be citing conservative, Catholic theologian, John Connery; however, an examination of the text suggests that the person she refers to is George Williams.[24] Numerous commentators have made the claim of mistranslation though they do not press it as an argument against the tradition as Harrison does. Harrison’s argument is based on apparent discrepancies between The Septuagint (LXX) and The Masoretic Text (MT) over the rendering of Exodus 21:22-25. The LXX translation of Exodus 21:22-25 reads,

22 If two men fight and strike a pregnant woman, and her unformed embryo departs, he shall be fined; according as the woman’s husband lays upon (him) he shall give according to what is thought fit. 23 But if it be formed, he shall give a life for a life.[25]

This differs from the MT,

22When people who are fighting injure a pregnant woman so that there is a miscarriage, and yet no further harm follows, the one responsible shall be fined what the woman's husband demands, paying as much as the judges determine.23 If any harm follows, then you shall give life for life, 24eye for eye, tooth for tooth, hand for hand, foot for foot, 25 burn for burn, wound for wound, stripe for stripe.[26]

Harrison’s argument regarding this discrepancy consists of three claims. Firstly, she suggests that Christian prohibition of feticide is based upon the LXX, that early Christian writers aquired the LXX translation via the Didache. Secondly, she suggests that the MT, which in her view accurately captures the original law, did not consider feticide a major crime. Commenting upon the RSV translation of the MT, she states,

[It] demonstrates 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.[27]

Thirdly, she argues that the LXX mistranslates this law and incorporates a prohibition of feticide into the text that is not there.

If these three contentions are correct then the Alexandrian argument simply rests upon a mistranslation of scripture. Moreover, Harrison contends that if this mistranslation were corrected and the correct interpretation followed, the Torah should lead those who wish to be faithful to scripture to support feticide as licit.

In response I will examine whether each of Harrison’s contentions are correct. From the outset I will grant Harrison’s assumption that the MT accurately captures the original and that the LXX is the later translation. I will also grant her point that the argument has origins in Alexandrian Judaism and the LXX. (I have already defended this claim elsewhere so I cannot consistently reject it here). The discussion will then ask whether each of Harrison’s other claims are correct.

Does the Masoretic Text Consider Feticide a Major Crime?
Harrison claims that the law “demonstrates that causing the death of a fetus did not constitute a major crime at that time; payment of a fine to the prospective father was considered adequate compensation”.[28] She is not alone in making this argument. In an influential textbook James Rachels argues,

The scriptural passage that comes closest to making a specific judgment about the moral status of fetuses occurs in the 21st chapter of Exodus. The chapter here is part of a detailed description of the law of the ancient Israelites. Here the penalty for murder is said to be death; however, it is also said that if a pregnant woman is caused to have a miscarriage, the penalty is only a fine, to be paid to her husband. Murder was not a category that included fetuses. Clearly, the Israelites regarded fetuses as something less than full human being.[29]

Similarly, Graham Spurgeon argues,

[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.[30] [Emphasis original]

These arguments all rely on three interpretative judgements some of which are reflected in the N.R.S.V. translation cited above.

(a) That the case under discussion is that of a pregnant woman being struck and then miscarrying as a result.

(b) That vv 22 and 23 distinguish between whether there is or is not, harm to the woman.

(c) That the punishments rendered in each case are qualitatively different. If the fetus is killed, the punishment is “only a fine”, indicating it is not a serious offence. On the other hand, if the woman is killed the penalty is more serious. It is death.

I think that (a) and (b) are defensible but that (c) is not.

In my coming posts I will address each in turn starting with my next post where I will address whether the passage refers to a miscarriage.

[1] Judaeus Philo, “The Special Laws III,” in The Contemporary of Josephus, Translated from the Greek, trans. by Charles Duke Yonge (1993) (108)(109).
[2] Athenagoras, A Plea for the Christians, 35.
[3] Tertullian, Apology, 9.8.
[4] Minucius Felix, Octavius, 30.
[5] Apostolic Constitutions, 7.3 and Teaching of the Twelve Apostles, 5.
[6] Epistle to Archbishop of Mainz.
[7] Jerome, Letters, 121.4.
[8] Lactantius, De Opifico Dei, 12, 17.
[9] Gregory of Nyssa, On the Holy Spirit Against Macedonius.
[10] Cyril of Alexandria, De Adoratione in Spirtu et Veritate, 8.
[11] Theodoret, Questions on Exodus, 48.
[12] Ambrosiaster, QQ Veteris et Novi Testamenti, 23.
[13] Augustine, Commentary on the Heptateuch, 2. 80.
[14] Penitentiale Bigotianum, 4.2, 2-4.
[15] Bonaventure, Commentarium in Librum IV Sententiarium, d 31 dub 4.
[16] Thomas Aquinas, Commentarium in Librum IV Sententiarium, d 31.
[17] Thomas Aquinas, Summa Theologiae II II Q64 Article 8.
[18] Ewald M Plass, What Luther Says: An Anthology, (St Louis, MO: Concordia Publishing House, 1959) 509, cited in G. Willams, “Religious Residues and Presuppositions in the American Debate on Abortion,” Theological Studies 31:1
[19] John Calvin, Harmony of the Law, Vol. 3
[20] Melanchthon, “Definitio Animae Usitata in Eccesia,” Corpus Reformatorum 13, cited in G. Willams, “Religious Residues and Presuppositions in the American Debate on Abortion,” Theological Studies 31:1 (1970).
[21] J. Guillmeneau Child Birth 70-73, cited in G Willams “Religious Residues and Presuppositions in the American Debate on Abortion,” Theological Studies 31:1 (1970).
[22] W Gouge, Of Domesticall Duties, Eight Treatises 506, cited in G. Willams “Religious Residues and Presuppositions in the American Debate on Abortion,” Theological Studies 31:1 (1970).
[23] Harrison, Our Right to Choose, 136.
[24] George H. Willams, “Religious Residues and Presuppositions in the American Debate on Abortion,” Theological Studies 31:1 (1970): 20. Connery, in fact, suspends judgement on the question of whether the LXX is a mistranslation and he says nothing about Philo being behind the Didache.
[25] Isser, “Two Traditions:,” 30.
[26] Exodus 21:22-25 N.R.S.V.
[27] Harrison, Our Right to Choose, 68.
[28] Ibid.
[29] Rachels, Elements of Moral Philosophy, 50.
[30] Graham Spurgeon, The Religious Case for Abortion (Asheville, NC: Madison and Polk, 1983), 16.

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
The Foundations of the Alexandrian Argument against Feticide Part VI


  1. I probably shouldn't pre-empt you next post, but suffice it to say that Harrison is relying on English translations of Hebrew and Greek, but the English translators themselves are interpreting in their translation.

    I haven't read Harrison, but these sorts of arguments get less mileage when transliterations are provided; one can't hide behind the version that most fits one's argument.

    Recent blog post: A prayer and a pledge for real change

  2. "I haven't read Harrison"

    You are not missing much. Like Dawkins and Hitchens she is seriously overrated but, like the aforementioned zoologist and journalist, she gets a over-hyped in her field so she is worth exposing.

    Matt is about to put the next installment up and set it to auto-post in the morning so you can always use your admin access to sneak a peek ;-)

    Recent blog post: How to become a Famous Blogger


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