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Wednesday, 15 April 2009

The Foundations of the Alexandrian Argument against Feticide Part V

Having previously addressed whether causing the death of a woman is a capital offence, I will now examine how Exodus 21:22-25 views feticide.

Is Feticide Condemned as a Minor Offence
Harrison argues that the reference to a fine in v 22 suggests that the law considers feticide did “not constitute a major crime at that time”.[1] The text of v 22 provides no justification for this observation.

The word translated as fine in the N.R.S.V. has a broader meaning than our understanding of fine. Rather it means punishment in general.[2] It is used in this text with an emphatic infinitive absolute, hence it is rendered, ‘the one responsible shall be strictly punished.’ This is not the language of a trivial offence.[3]

Further, the text goes on to refer to the punishment. The offender must pay whatever the husband “demands”. This phrase certainly does not suggest compensation for a trivial offence. The very same phrase is used only nine verses later in the case of a goring ox. If the owner has been warned of the bull’s habit for goring and he does not keep it penned up, the punishment if the ox gores someone is “that the owner shall also be put to death, however, if payment is demanded of him, he may redeem his life by paying whatever is demanded”.[4] The reference to paying a fine “demanded of him” in this verse is to money paid in compensation for homicide.

A final point to be noted is that this text punishes the destruction of a fetus. It explicitly states that a person who kills a fetus should be punished strictly. Punishment was only warranted if the action was a crime. Hence, under Jewish law killing a fetus was a crime. There is little justification for any inference from this passage to the conclusion that feticide was lawful.

Moreover, it appears that it is considered unlawful because of the moral status of the embryo/fetus. There are several reasons for thinking this is the case. Perhaps the most significant one is seen by examining the phrase “and he shall pay as the judges determine”.[5] This rendition of the Hebrew phrase by the N.R.S.V. is widely conceded to be problematic.

Firstly, the word rendered as judges by the N.R.S.V. is pllm. Whilst the verb of this root does refer to judging, the lexical meaning of judge for pllm is not very well established from its other occurrences in Scripture. Moreover, Speiser notes that even if pllm did mean ‘judges’ it could not carry the whole force of “as the judges determine”. He suggests that rendering pllm as ‘judges’ is an error analogous to interpreting the English word judicious as having the same meaning as judicial or interpreting justice as judgement.[6]

Secondly, not only is the meaning of judges not well established for pllm, rendering it as judges in v 22 does not fit the context. The phrase as “the judges determine” introduces a tension into the text. It affirms that the offender shall pay what the husband determines and then immediately states he shall pay what the judges determine. This problem is exacerbated by Sprinkle’s observations that as a stylistic matter the case law in Exodus 21:20-23 does not directly mention judges.[7]

A third reason for doubting the meaning of judges for pllm is that it contradicts other translations such as the LXX. The LXX rendition of the clause is not “as the judges determine” but rather “according to assessment”. In and of itself this is not decisive. I noted earlier that the LXX does at times differ from the MT. This fact alone does not automatically make such interpretations of the MT suspect. However, it does appear decisive when combined with the other reasons already cited. It is one thing to translate the MT in a way that contradicts the LXX when the meaning one is translating is well attested but when one is using a meaning that is not well attested, which does not fit the context and in a way that contradicts other ancient translations, it is problematic, especially because, as I will discuss shortly, pllm does have an attested meaning that does fit the context that agrees with the LXX.

Loewenstamm suggests that pllm may be translated as “an objective assessment”. Citing a study by Yalon, he notes that in Talmudic Hebrew the word pllm has the idea of ‘investigate or assess.’[8] Speiser, who suggests the word means “estimate, assessment, calculation”, makes a fuller argument for this conclusion.[9] Applying this idea, the text would read, “the one who is responsible shall be strictly punished, he shall pay whatever the husband lays upon him according to an assessment”. This interpretation is preferable to the RSV for several reasons.

Firstly, as the studies of Speiser and those mentioned by Loewenstamm make clear, this meaning is well attested. Examining the several occurrences of this phrase and its various derivatives in scripture, Speiser notes, “every single reflex of the base form of pll finds its natural and at times the only possible and hitherto absent, explanation in the same underlying concept of ‘assess’.”[10]

Secondly, this meaning fits the context. I noted that “as the judges determine” renders the text contradictory, whereas the phrase “the one who is responsible shall be strictly punished, he shall pay whatever the husband demands according to an assessment” does not. This interpretation also fits the context well when one considers its overall structure.

The text begins with a case that has two protases; one where there is no harm and another where there is harm. Each protasis is followed by a subsequent apodasis rendering a judgement. The second apodasis renders a judgement and then spells out a method for assessing the penalty, the lex talionis. It makes sense then that the first apodasis would mention an assessment.

Thirdly, this translation makes sense of the LXX in two ways. First, it explains adequately why the LXX renders v 22 as “according to an assessment”. Second, as I will argue in my next post, the phrase “according to an assessment” also provides a plausible explanation as to why the LXX translators introduced the distinction between a formed and unformed conceptus into the text.

Verse 22 then is rendered, “the one who is responsible shall be strictly punished, he shall pay whatever the husband demands according to an assessment”. The text denotes that the person shall be punished by an assessment. The evidence we have suggests that this assessment was not based upon the value of the fetus to the woman but upon the age and level of development of the fetus.

Two lines of evidence suggest this. First, this was how contemporary legal codes of the time punished feticide. The ancient Hittite Law stated,

16. If anyone causes a free women to miscarry- if (it is) the 10th month, he shall give 10 shekels of silver, if it is the fifth month he shall give 5 shekels of silver and pledge his estate as security. 17. If anyone causes a slave-women to miscarry, if (it is) the 10th month, he shall give 5 shekels of silver.[11]

The Hittite Law has a close geographical, temporal and literary relation to the Mosaic Law. The Hittites lived in the same area as the Hebrews and Scriptural texts showed they mingled with the Hebrews. This Hittite legal code was in place at the same time and in roughly the same area.

This shows that at around the same time and place as the Mosaic Law was drafted the legal practice determined the gravity of feticide by assessing the developmental level of the fetus. It is in this social and legal context that the Mosaic Law noted that the one responsible shall pay by an assessment. The most natural way of understanding this phrase is to understand it as referring to this type of method, one that Moses’ hearers would be familiar with.

The second line of evidence comes from the LXX. The LXX interprets the law in a manner very similar to that of the Hittite code except it draws the line at the time of formation as opposed to 5 months gestation. As I will argue in my next post, the reference to formation displays Hellenistic influence. Nevertheless, a mode of assessment based upon fetal age would explain why the interpreters drew the conclusion they did. If the law prescribed that the penalty is based on the age of the fetus and contemporary Hellenistic biology teaches that formation is a crucial stage in development where the conceptus is hominised, then one would interpret the law in the way the LXX does.

The above exegesis is reinforced when one notices how the law is presented in the Torah. The key contrast between v 22 and vs. 23-25 is over who the victim is and how the damages will be assessed. Verse 22 deals with a case where it is explicitly stated that there is no harm to the woman. It is mentioned that the fetus is killed and the damages are assessed, not based on harm to the woman but on an objective judgement about the status of the fetus. In contrast, vs. 23-25 specify that if the woman is harmed damages are to be based upon the amount of damage to her. Therefore, the law does not appear to view the induced miscarriage as merely an offence against the woman. The law bases the seriousness of the offence not on how much anguish the woman has suffered but on objective judgements about the moral status of the embryo or fetus. This status is based on the level of development the conceptus has undergone, a feature it possesses independently of its mother. This means that it was wrong to induce a miscarriage because the embryo/fetus has moral status.

In my final post I will revisit Harrison's claim that the Septuagint mistranslates the Hebrew in light of my series.

[1] Harrison, Our Right to Choose, 68.
[2] Kline, “Lex Talionis and the Human Fetus,” 196.
[3] Ibid.
[4] Ex. 21:31, N.I.V.
[5] Ex. 21:22, N.I.V.
[6] Speiser, “The Stem Pll in Hebrew,” 301-306.
[7] Sprinkle, “The Interpretation of Exodus,” 9.
[8] Samuel E. Loewenstamm, “Exodus XXI: 22-25,” Vetus Testamentum XXVII (1970), 359.
[9] Speiser, “The Stem Pll in Hebrew,” 303.
[10] Ibid., 304.
[11] Hoffmeier, “Abortion and the Old Testament Law,” 44-45.

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 VI


  1. OK the text is clear that if a woman is harmed by losing her fetus as the result of the actions of another, the person who caused her to lose her fetus is to be punished. But it is still not clear what happens if a woman wanted to miscarry, and arranged someone to cause her to miscarry. She would not in that case be harmed as wanted what happened to her and she would not therefore require to be compensated. The requirement for compensation and/or punishment is initiated by the woman or her husband. It is not clear that there is any provision in Mosaic law for the prosecution of persons who cause women to miscarry (i.e. perform abortions) at the woman's request and with her consent.

  2. Matt, I am guessing some of this and related posts about twinning etc. come from your thesis?

    Much of what you have written is arguing what and why these verses should be translated. I would find it helpful if after your final post you do a post with how you think Exodus 21:23-25 would be best translated into English. Followed by the same passage in an extended translation detailing what the passage means, eg. a little like the amplified Bible.

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  3. The connection with the Hittites is tenuous. This was written in the Sinai, any connection with the Hittites would date to Jacob ~200 years earlier, or even earlier.

    More importantly, the link from the biblical Hittites to the Anatolian Hittites is suspect. The names are not identical and the biblical Hittites clearly lived in the area of Canaan during the times of the patriarchs, not much further north. (An argument could possibly be made for the biblical Hittites of a much later period, I am not certain but remain agnostic about this supposition).

    Not that this particularly affects your argument, I just don't think it is supportive.

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  4. Bethyada, I will have to look up the journal I got the information from it suggested the Hittite code was roughly contemporaneous with the torah.

    Part of the whole question of course hinges on when you date the Exodus and I think we might disagree on that. I lean towards Kenneth Kitchen’s assessment of this question.

    Recent blog post: The Foundations of the Alexandrian Argument against Feticide Part V

  5. Hi Mark

    I think the issue relates to the fact that the penalty assesment is based on the status of the fetus not on the damage to the women. This suggests its the status of the fetus that is at issue not the loss to the women.

    I will however in my next post address this a bit more when I tie the whole thing back in with the LXX.

    Recent blog post: The Foundations of the Alexandrian Argument against Feticide Part V

  6. Your phrase "an emphatic infinite absolute" should read "an emphatic infinitive absolute". The Hebrew text uses 'nš with an infinitive absolute.

    The substantial point about emphasis is correct, however.

  7. Thanks for that Deane, Matt concurs and says it must have been a typo that his editor [read: me] missed.

    I have amended it accordingly and I know Matt is keen to read your other comments.

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