Heh!

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.

RELATED POSTS:
Capital Punishment in the Old Testament: 1

An acquaintance of mine sent me a copy of this article at Gaynz.com by Craig Young. Craig and I have a kind of knack at studying the very same topics at the same time. He wrote a PhD thesis criticising conservative Christian views on abortion around the same time I started writing my PhD thesis defending such views. With this article the timing is somewhat uncanny. One of the main burdens of Craig’s article is to argue for the conclusion that it is not inconsistent to both oppose capital punishment and support abortion "rights". Craig bases this conclusion on the contention that fetuses are not human because they lack sentience. Intriguingly I have just submitted an article for publication rebutting the claim that fetuses are not human until sentient and I have just had word that another article, where I discuss the relationship between feticide and capital punishment, has been accepted for publication. Since Craig has put his thoughts on these issues before the public, I will respond to them here.

Before getting to the nitty gritty is worth noting the deceptive slips in Craig’s post. Craig writes:

Amnesty International opposes torture, harassment organised homophobic violence and the death penalty when performed on the basis of homosexuality. Saudi Arabia demonstrates the complexity of the issue, with formal sharia law but co-existing cruising grounds and private indulgence of what is legally forbidden. However, Nigeria, Sudan, Iran, and Iraq's Mahdi Army all penalise male homosexuality, while Iran also mandates capital punishment for persistent lesbianism, Hezbollah and Hamas also believe that their version of fundamentalist Islamism, whether Shia or Sunni, has no place for homosexuality. They base this on their arguable interpretation of the Qu'ran and particular traditions of interpretation of attributed sayings of the Prophet Muhammed, although the Hanafi school of interpretation is more liberal than others….

Surely no-one could object to the above, especially given that the Christian Heritage Party, which alone supported reintroduction of the death penalty in New Zealand, died after Capillgate in 2005.

Now a couple of things to note here. Craig states that Amnesty opposes capital punishment when "performed on the basis of homosexuality." He then insinuates that only the Christian Heritage Party opposed Amnesty's stance because it supported the reintroduction of capital punishment.

This is deceptive. As Craig knows, Amnesty does not just oppose capital punishment for homosexuality, it opposes it for any crime including murder. It is this aspect of Amnesty that the Christian Heritage Party opposed. As Craig knows, the Christian Heritage Party did not support the death penalty for homosexuality, it supported it only for pre-meditated murder when there were multiple eyewitnesses. Craig is trying to conflate support for Capital Punishment per se with support for executing Gays.

Craig also seems to think that because some countries execute homosexuals it follows that people should support the abolition of the death penalty for any crime. This is a very weak argument. After all,many countries imprison homosexuals so an analogous line of argument would suggest that Craig should oppose imprisonment for any crime yet strangely he advocates imprisonment for murder later on in his article. This demonstrates Craig is quite capable of drawing distinctions between the morality of a practice and the morality of a specific application of the practice.

It is also a weak argument to suggest that because an organisation like Amnesty supports some worthy causes, such as opposition to torture, it follows it should not be subject to criticism for other causes it supports, such as abortion rights. If abortion is homicide then for every person saved by Amnesty thousands, if not millions, are killed with its tacit support.

However, what I really want to comment on is Craig’s argument for the consistency of a pro-abortion stance with an anti-death penalty stance. Craig writes:

However, the Christian Right has piped up with references to embryos and fetuses. There's a vast difference between pre-sentient potential humans and actual, flesh and blood biographical human subjects, not that that troubled Right to Life New Zealand throughout the nineties when it had Graham Capill as one of its patrons, or when Voice for Life Vice-Presidnet Annetta Moran stood on the same Christian Coalition party list as Capill in 1996. And as Amnesty International is a pluralist organisation, why should it support an essentially religious campaign against women's reproductive freedom, in any case?

Now several things are worth noting here; Craig’s key claim is that, unlike capital punishment, abortion does not kill an actual human being. This is because fetuses (up till around 28 weeks) are not sentient and hence not "biographical subjects." There is a serious problem with this argument. It presupposes that a being must be a "biographical subject" to be a human being.

Now while it is true that prior to sentience fetuses are not such subjects, neither are they such subjects for some time after sentience. In fact, for some time after birth infants are not "biographical subjects" either. This point was vigorously demonstrated by Michael Tooley in his monograph Abortion and Infanticide. Sentience is a necessary condition for being a "biographical subject" but it is not a sufficient condition.

To be a biographical subject one needs more than just sentience. One needs to have a concept of an enduring self and to have this, a certain level of cognitive development is necessary. As Tooley demonstrates, the requisite development does not take place until after birth. Hence, if Craig were consistent he would support not just abortion but also infanticide. Craig can maintain a consistent stance on the ethics of killing only if he maintains that serial killers have a right to life and newborn infants do not.

Craig’s appeal to sentience is similarly problematic. In A Defense of Abortion, David Boonin notes that those who attempt to ground humanity in the psychological development of an organism face a dilemma, "Any appeal to what a brain can do at various stages of development would seem to have to appeal to what the brain can already do. Or to what the brain has the potential to do in the future."

Either option leads to problems for a defender of the permissibility of feticide who does not also want to endorse infanticide. This is because "by any plausible measure dogs, and cats, cows and pigs, chickens and ducks or more intellectually developed than a new born infant." Suppose, then, one takes the first horn of the dilemma and appeals to what the brain can already do. However, unless one wishes to affirm that cats, dogs and chickens are human beings, "appeals to what the brain can already do" will "be unable to account for the presumed wrongness of killing toddlers or infants."

Suppose then, one takes up the second horn of the dilemma and appeals to "what the brain has the potential to do in the future". This will entail that feticide is homicide. "If [such an account] allows appeals to what the brain has the potential to do in the future, then it will have to include fetuses as soon as their brains begin to emerge, during the first few weeks of gestation." Again, Craig is forced to either grant the humanity of a fetus or deny the humanity of an infant.

Finally it is worth noting how Craig attempts to pass of his contradictory stance with some really silly inferences. He dismisses support for Capital Punishment on the grounds that the Christian Heritage Party "died after Capillgate." Similarly, in the citation above he notes that some anti-abortion groups were either associated with Capill or had people associated with Capill in them.

One wonders what this has to do with anything?

Both groups had the associations in question before it was known Capill was a criminal. There is no evidence they supported his actions or that they were complicit in his crimes. Given these facts, how is Capill remotely relevant? The only purpose reference to him serves is to encourage people to jump to unwarranted conclusions that certain people support abusing children when they do not.

However, let us suppose, contrary to fact, that these people had been complicit in Capill’s crimes. This would still tell us nothing about the permissibility of capital punishment or abortion. It would merely tell us that some people who oppose abortion are criminals. In the absence of a compelling reason for thinking that no just policy is ever supported by criminals and remember Criminals tend to vote left of centre, the correct response to Craig’s assertion is to ask "and?"

Let me illustrate the problems with Craig’s inferences by turning the tables here. Craig writes for Gaynz.com, a few years ago it was discovered that one of Gaynz’s regular writers, Jim Peron, had been an apologist for the views of NAMBLA. Jim Peron had published paedophile erotica written by convicted child molesters, written articles agressively labelling critics of "man boy love" as "hysterics" for viewing paedophilia as abuse, sold NAMBLA material and had NAMBLA meetings in his store. His visa to NZ was denied on the basis of these facts about his character.

Now, would it be fair of me to insinuate from this association that Craig is a NAMBLA supporter or that everyone who agrees with him on abortion and capital punishment is morally suspect because Craig is associated with a group that was once associated with this man Jim Peron? Could I logically dismiss Craig’s position on abortion and capital punishment merely by pointing this fact out? Of course not!

What I need to do and have done above, is provide an argument against these positions. Similarly, if Craig is to provide a rebuttal of the stances I and others have taken on capital punishment and abortion he needs to provide arguments against those stances but as usual, Craig and the team at Gaynz have none.

This morning I recieved word that my article Abortion and Capital Punishment : No Contradiction, will be published in one of the next 3-4 issues of Think.

The article was originally part of my PhD thesis.

I would like to thank Perfect Man whose comments motivated me to submit this section of my thesis for publication.

Texas is about to perform it’s 400th execution since capital punishment was reinstated in 1982. Stuff has an interesting article on this entitled “Religion, Culture Behind, Texas Execution Tally”

The article suggests that outsiders find it puzzling that evangelical Christians support capital punishment. This surprise, I suggest, reflects the theological and historical ignorance of these outsiders. Historically most Christian Theologians supported capital punishment as does mainstream historical Christian tradition. I suspect the reported puzzlement often comes from facile “if you oppose abortion you must oppose capital punishment” arguments which I have critiqued previously.

Like many media accounts of religion and morality the article resorts to caricature

Like his predecessor, Governor Perry is a devout Christian, highlighting one key
factor in Texas' enthusiasm for the death penalty that many outsiders find
puzzling – the support it gets from conservative evangelical churches.
This
is in line with their emphasis on individuals taking responsibility for their
own salvation, and they also find justification in sripture.
"A lot of
evangelical Protestants not only believe that capital punishment is permissible
but that it is demanded by God. And they see sanction for that in the Old
Testament especially," said Matthew Wilson, a political scientist at Southern
Methodist University in Dallas

A lot could be said here. First there is a subtle reductio ad bushium hinited at in the first line. Second, note that when the journalist wants to gain an understanding of the scriptural and theological justification evangelicals rely on to defend capital punishment he turns not to an evangelical ethicist who supports the death penalty but to a political scientist.

Third, what is said is questionable at best. In North America many evangelicals are Dispensationalists and hence do not consider Old Testament moral norms to be binding on believers and so would not appeal to the Old Testament. Their scriptural justification is drawn from the New Testament particularly Romans 13.

Third, contrary to what the article confidently asserts evangelicals do not believe people are responsible for their own salvation. Whether they are Arminians or a Calvinists evangelicals believe that salvation is given by grace. One cannot earn it through works and hence one is not responsible for it God is. What some Christian writers ( Kant and CS Lewis) have argued is that respect for human dignity requires that punishment be retributive as opposed to therapeutic or deterrent One is justified in depriving a criminal of his right to life or liberty by punishment only if he deserves it, he has by his own voluntary actions and done something he as a rational agent knows is wrong. To subject people to treatment without their consent or to punish one person for the future crimes of others is degrading. This argument may be mistaken. But the first step to refuting it is to actually understand it, not to attribute to evangelicals views they in fact reject.

Not content with stereotyping and caricature. The article goes on to repeats the objection that that capital punishment is applied in a racist manner the article states.

blacks more likely than whites to be condemned –…Over 41 per cent of the
inmates currently on death row in Texas are black, but they account for only
about 12 per cent of the state's population.

Now there are several problems here:

First, the while its true that blacks make up only 12 of the states population its also true that in the United states around 52% of all homicides are committed by Blacks. Hence the statistic provided is misleading at best and outright deceptive at worst. To asses wether capital punishment is applied in a discriminatory manner or not the issue is not the percentage of blacks executed relative to the number of blacks in society the issue is the percentage of blacks executed relative to the number who commit homicide.

Second, this whole argument has been exploded by Ernest Van Der Haag in the Harvard Law Review Association ( 1983)

Maldistribution of any punishment among those who deserves it is irrelevant to
its justice or morality. Even if poor or black convicts guilty of capital
offenses suffer capital punishment, and other convicts equally guilty of the
same crimes do not, a more equal distribution, however desirable, would merely
be more equal. It would not be more just to the convicts under sentence of
death.

Van Der Haag’s point is this: If capital punishment is just and those executed deserve to be executed then the fact that a disproportionate number of blacks are executed can not change this. To say otherwise is essentially to argue that because some people escape justice every one should.

On the other hand if capital punishment is unjust and those executed do not deserve to die then applying capital punishment equally would not be an improvement. This is like arguing that all people should be treated unfairly because some are. The appeal to unequal distribution then is a red herring; the question is whether capital punishment is just.

Of course none of this is surprising, to expect the media to accurately report the views of religious conservatives or actually give a competent treatment of a moral or ethical issue is asking to much. That might require getting people to actually hear reasoned theological dissent to the current liberal left orthodoxy.

[1] Beverly Wildung Harrison, Our Right to Choose: Toward a New Ethic of Abortion (Boston: Beacon Press, 1983), 35.
[2] Harrison, Our Right to Choose, 35.
[3] In this discussion of formal and implicit contradictions I am influenced by Alvin Plantinga, God, Freedom and Evil (Grand Rapids, MI: Eerdmans Publishing Co, 1974) 14-16.
[4] This argument was suggested to me in private correspondence.

RELATED POSTS:
Is Abortion Liberal? Part 1
Is Abortion Liberal? Part 2
Sentience Part 1
Sentience Part 2
Viability
Abortion and Brain Death: A Response to Farrar
Abortion and Child Abuse: Another Response to Farrar
Imposing You Beliefs Onto Others: A Defence
Published: Boonin's Defense of the Sentience Criteria - A Critique
Published: Abortion and Capital Punishment - No Contradiction

At 4pm Saddam Hussein, the Butcher of Baghdad, was executed.

Saddam deserved to die. I do not think anybody believes he was innocent of serious crimes. This dictator murdered and tortured thousands of innocent people including women and children. I have had the misfortune of reading some of the accounts of Saddam's atrocities from firsthand witnesses. Few things have disgusted and sickened me more.

No doubt some groups like Amnesty International will denounce his hanging as unjust. They would prefer a world where innocent unborn children are slaughtered for any reason but where bloody brutal murderers and dictators do not get their just desserts. I do not share their sentiments.

It is true that there are questions about the process of Saddam's trial and legitimate criticisms may be raised. However, Saddam was not an innocent man framed for crimes he did not commit or some innocent third party in the wrong place at the wrong time victimised by a corrupt system. Saddam did commit these crimes and many more and he deserved to die.

Saddam will be executed 25 Jan 2007.

While I will not celebrate his execution I am pleased that it is happening.