Gordon Wenham

(PART II)

 

Principles of Punishment in the Pentateuch

An outstanding feature of biblical law is the pre-eminence it accords to human values, as opposed to the economic considerations of much cuneiform law. This emerges particularly clearly in its penal law.1 In Israel, religious offences and offences against life and the structure of the family tended to be punished more severely than elsewhere; whereas cuneiform law tended to rate financial loss as more serious than loss of life, or at least see loss of life in economic terms. For instance, Babylonian law punished by death, breaking and entering, looting at a fire and theft.2 But in Israel no offences against ordinary property attracted the death penalty.3 By contrast, in Israel the death penalty was mandatory for murder, because man is made in the image of God (Gen. 9:5f.), whereas other legal systems permitted monetary compensation.4

The humanitarian outlook of the biblical law is also illustrated by its abolition of substitutionary punishment. Substitution was often allowed in cuneiform law, e.g. if through faulty construction a house collapses killing the householder’s son, the son of the builder who built the house must be put to death (LH 230). But Deuteronomy explicitly forbids this kind of substitutionary punishment: ‘The fathers shall not be put to death for the children, nor shall the children be put to death for the fathers; every man shall be put to death for his own sin’ (24:16). It is only in specifically religious matters that the principle of corporate guilt comes into play. Though Deuteronomy insists that sons shall not be put to death for the fathers, it also insists that a village should be wiped out, if some of its inhabitants commit idolatry (Deut. 13:12ff.), while the Decalogue mentions that God will visit the sins of the fathers upon the children (Ex. 20: Deut. 5:9).

The Purpose of Punishment

The principles underlying the biblical laws on punishment are summarized in Deuteronomy 19:19f., a passage dealing with the punishment of a false witness: ‘You shall do to him as he had meant to do to his brother; so you shall purge the evil from the midst of you. And the rest shall hear, and fear, and never again commit any such evil among you.’ Five principles are alluded to in this passage and may be illustrated from other parts of the Pentateuch.5

(1) The offender must receive his legal desert, which is not simply to be equated with revenge. The penalty must correspond with the crime. This is perhaps most clearly seen in Genesis 9:6: ‘Whoever sheds the blood of man, by man shall his blood be shed’, and in the general principle of talion enunciated in various places: ‘Life for life, eye for eye, tooth for tooth’ (Deut. 19:21; Ex. 21:23f.; Lev. 24:18ff.). This talion formula is just a formula however; it is not to be taken literally except in the case of premeditated murder (Num. 35:31). Where the formula occurs, it is usually evident that the lawgiver is not demanding its literal fulfilment, but some payment to compensate for the offence (see Ex. 21: 22ff.).6

(2) Punishment is designed to ‘purge the evil from the midst of you’. What does this mean? ‘The evil’ cannot refer to the offence itself, for it cannot be undone. Nor can it refer to the possible repetition of the offence. Rather it refers to the guilt that rests upon the land and its inhabitants. This concept, though foreign to our secular way of thinking, occupies an important place in the Bible. In Genesis 4:1 of. the blood of Abel cries out to God from the ground, and the ground is accursed for his sake. In Leviticus 18:24-28 it is said that the offences of the heathen cause them to be expelled from Canaan. Still dearer is Deuteronomy 21:1-9 where a rite is prescribed to atone for the crime of an unknown murderer. The attempt to discover the murderer has proved futile, and therefore a calf is killed by a stream and various rites are performed. This series of actions does not undo the murder, nor does it ensure that no murders are committed in future, but it does atone for the blood guilt which rests upon those whose responsibility it is to execute punishment, and the whole people. The elders say: ‘Forgive, O Lord, thy people Israel, whom thou hast redeemed, and set not the guilt of innocent blood in the midst of thy people Israel’ (verse 8).

(3) Punishment should deter others from committing the offence: ‘The rest shall hear, and fear, and shall never again commit any such evil among you’ (Deut. 19:20; cf. 13:11; 17:13; 21:21).

(4) Punishment allows the offender to make atonement and be reconciled with society. After he has paid the penalty the offender suffers no loss of his civil rights. Degradation of the offender as a motive for punishment is specifically excluded by Deuteronomy 25:3, where the number of strokes is limited to forty, ‘lest, if one should go on to beat him with more stripes than these, your brother be degraded in your sight.’ The degrading brutality of many punishments under Assyrian law is in marked contrast to the Hebrew outlook. Mutilation is only demanded once in the Pentateuch, in an extreme case (Deut. 25:1 ff.), and there the penalty is mild compared with some of those in the Assyrian laws (e.g. MAL A4-5, 8-9, 40).

(5) Punishment allows the offender to recompense the injured party. Hebrew, like Mesopotamian law, had no system of fines. Instead it imposes damages so that the one who suffered, and not the state, benefits from the punishment (e.g. Ex. 22; Lev. 6 :1ff.; cf. H 5:20ff.).

Civil and Criminal Law

The use of damages rather than fines highlights an aspect of the biblical legal system of which the layman is not usually conscious; it is basically a system of civil law on to which various criminal law features have been grafted. This means that many offences are regarded as torts, wrongs against individual private citizens for which the injured party has to seek redress on his own initiative through the courts.

The number of offences which can properly be called crimes, actions which the state itself forbids and seeks to stamp out, is very limited in Near Eastern law, though it is considerably augmented in the Old Testament by the large number of religious crimes. It is somewhat artificial to attempt to distinguish civil and criminal law in the Old Testament, since the whole of life is viewed as being lived under God and therefore all wrongdoing is sin. No sin can be viewed with equanimity by the community, since it is likely to provoke God’s wrath. Nevertheless if one wishes to distinguish the criminal and civil law elements, the type of penalty imposed may provide a criterion. Monetary compensation suggests that the offence should be regarded as falling within the realm of civil law, while the death penalty or corporal punishment suggests that the offence should be viewed as a crime. The prosecution of murderers, however, shows how foreign the civil/criminal law distinction is in biblical thinking. Though murder is viewed as a crime, in that the payment of damages to the victim’s family is prohibited, the state does not take a hand in prosecuting the criminal. It is left to a relative, the avenger of blood, to kill the murderer if he can, or if he cannot, to chase him to the city of refuge and there convince the city authorities that the homicide is a murderer. The avenger of blood must then execute him (Ex. 21:12-14; Num. 35:10ff.; Deut. 19).

Types of Punishment

The Pentateuch lays down three main types of punishment: the death penalty for the gravest public sins against life, religion and the family, ‘cutting-off’ for grave private sins, and restitution for property offences.

(a) The death penalty. The death penalty is prescribed for a wide range of crimes: premeditated murder (Ex. 21:1 2ff.; Num. 35; Deut. 19); man-stealing (Ex. 21:16; Deut. 24:7); persistent disobedience to authorities and parents (Deut. 17:12; 21:18ff.); adultery (Lev. 20:10; Deut. 22:22); homosexuality (Lev. 20:13); the worst forms of incest (Lev. 20:1ff.); false prophecy (Deut. 13:1f.); profanation of the sabbath (Num. 15:32ff.); blasphemy (Lev. 24:13ff.); idolatry (Lev. 20:2ff.); magic and divination (Ex. 22:18; cf. H17). Some of these crimes were also punishable by death under Babylonian law.7

It is not clear in how many cases the death penalty was actually exacted and how often composition was permitted. Composition is explicitly prohibited in the case of murder (Num. 35:31), and this seems to be the force of the phrase, ‘your eye shall not pity’ in Deuteronomy 19:13, and by analogy in 13:8 (idolatry), 19:21 (false witness) and 25:12. It would seem to me unlikely that composition was permissible in those cases where the mode of execution is prescribed (Deut. 21:21; 22:21). In the case of blasphemy and profanation of the sabbath, it evidently depended on the gravity of the particular offence whether the ultimate penalty was exacted (Ex. 31:13-17; Num. 15:32-36; Lev. 24:11f.). It was only profaning the sabbath by actual work, or blaspheming the name of Yahweh as opposed to God, that merited death. This shows that the penalties prescribed in the law were the maximum penalties. Where there were mitigating circumstances, lesser penalties would have been enforced. These were cases in which the evidence was clear. The demand for at least two witnesses (Deut. 19:15) would have in practice limited the application of these penalties to flagrant violations of the law. Many secret offences would inevitably have escaped punishment.

(b) ‘Cutting-off’. The law refers a number of times to God cutting off an offender, or the guilty person being cut off from among his people (e.g. Ex. 12:15, 19; Lev. 7:20f., 25, 27; 17:4, 9, 14; 18:29; 19:8; 20:3, 5f., 17f.; Num. 15:30f.). It is a punishment generally reserved for religious and sexual offences. Since some of these offences may also attract the death penalty, ‘cutting-off’ might be an alternative way of describing capital punishment (e.g. Lev. 20:6 and 27). However, since cutting-off is contrasted with judicial execution in Leviticus 20:2ff. (the man who escapes stoning must still face the possibility of being cut off), something different must be meant. For one case of incest Babylonian law demands expulsion from the community, whereas biblical law speaks of the guilty man being ‘cut-off’ (LH 154, cf. Lev. 20:17f.). It could be argued that ‘cutting-off’ means excommunication from the covenant community. But this treatment is reserved for the unclean rather than criminals (Lev. 13:45f.; Num. 5:1-4). It therefore seems best to retain the traditional interpretation of ‘cutting-off’: it is a threat of direct punishment by God usually in the form of premature death. In so far as many of the offences punishable by ‘cutting-off’ would easily escape human detection, a threat of divine judgment would have been the main deterrent to committing them.8

(c) Restitution. In cases of theft or misappropriation of property, restitution of the stolen property was demanded. Additional penalties vary with the degree of penitence shown by the thief. If he is penitent, he restores what he has stolen plus a fifth (Lev. 6:5, cf. H5:24).9 If he is caught with the goods on him, he restores double. If he has already disposed of the goods by sale or other means, he must restore four or fivefold. The penalty may have been increased in the latter case because of the greater difficulty of proving his guilt, and because the thief had made a deliberate attempt to cover his traces (Ex. 22).10 If a thief cannot pay, he may be taken as a slave by the injured party until he has worked off the debt (22:3; cf. H2). His slavery would usually be for a maximum of six years (Ex. 21:1f.; Deut. 15:12ff.) or until the year of jubilee (Lev. 25:39ff.). Slavery in the ancient Orient was not nearly as ghastly as it was in more modern times. There was little difference between a slave and a hired labourer (Lev. 25:39-55 ). Indeed it could be argued that Hebrew slavery was more humane than its modern equivalent — imprisonment. Neither in the laws of Hammurabi nor in the Pentateuch is imprisonment laid down as a punishment, though it was known in Egypt and under the later monarchy. To quote Driver and Miles: ‘This last punishment, which is expensive to the community, generally corrupting to the prisoner and often bringing unmerited hardship to his dependants, is the invention of a later age.’11 Twice it is mentioned in the Pentateuch that someone was kept in custody while awaiting trial (Lev. 24:12; Num. 15:34). The nearest thing to primitive imprisonment was the restriction imposed on a manslaughterer, who is bound to live in a city of refuge until the death of the high priest (Num. 35:26ff.).

Law Enforcement in Israel

If ancient Israel had a most searching ethical code in the Ten Commandments and an elaborate penal system, did it also have means of enforcing the law? Did it just depend on public goodwill, or was there a recognized organization to maintain law and order? These are not easy questions to answer, for it is in those periods when law was not being enforced that the problem emerges in the Old Testament. It was when the country lacked strong central government that injustice was most evident, and most is said about the lack of good government. ‘In those days there was no king in Israel; every man did what was right in his own eyes’ (Jdg. 17:6; cf. 18:1; 19:1). Hence we are better informed about the failures of government than about its successes.

However, a good deal can be pieced together from the Old Testament and neighbouring cultures about how government worked.12 But certain things must be borne in mind. First, the village culture of ancient Israel was very different from Western urban society, and the problems of law enforcement were trivial compared with ours. They lived in small, closely-knit communities in which everyone knew everyone else, and it would therefore have been extremely difficult for any local person to commit an offence without its becoming common knowledge. In the mass anonymity of modern society it is very much easier for criminals to remain undetected. Secondly, it was a conservative and authoritarian society, and therefore less likely to lead to social deviancy. Finally, because society was so much more compact, there was inevitably less specialization. One man could easily play the role of city councillor, judge and policeman in his spare time, and be a farmer the rest of the week. So we should not necessarily expect to find a professional police force. This was only introduced into imperial Rome by Augustus.

But though this means that the problem of law enforcement was much smaller than in our society, it does not mean it was non-existent. We can distinguish various devices for encouraging observance of the law. First, knowledge of the law was promoted by a seven-yearly festival at which the law was read (Deut. 31:9ff.) and by the Levites who were sent out to instruct people in the law (2 Ch. 17:8f.). By these means a public opinion was created that at least knew what the law demanded. In other words the Levites played a role equivalent to the mass media in modern society. Secondly, in the early period there was a system of tribal democracy. It seems likely that each tribe or village elected elders to govern its affairs and act as judges in legal disputes. In the monarchy period there was added to this older system a central court of appeal in Jerusalem to decide disputed cases (2 Ch. 19:8ff.).

Within this system specific remedies were available against law-breakers. When an offence was committed, it was up to the injured party or his family to bring the culprit before the court and prove his guilt. A man who suspected his wife of infidelity had to bring her before the court and prove it (Deut. 22:13ff.). Parents who had a stubborn and rebellious son had to report the case to the elders (Dr. 21:18ff.). In the case of murder it was up to a relative, the avenger of blood, to execute the murderer (Num. 35). Essentially, then, the system was one of self-help regulated by the courts. Witnesses were publicly summoned to report crimes (Lev. 5:1; Jdg. 17:2). Thus for most offences the initiative for the prosecution rested in private hands.

In the majority of cases it seems as if the plaintiff was also responsible for enforcing the court’s decision. But there is evidence that the plaintiff was sometimes aided by ‘officials’ (soterêm). The word literally means ‘scribe’, so one of their functions may have been to record court decisions. They also had the job of mustering the army and are mentioned alongside the judges in one or two cases (Deut. 16:18; 20:5; I Ch. 23:4), so they may have had the job of bailiffs or constables deputed to ensure that the judgment was carried out, but this is not too clear. As has already been explained, it is likely that an individual had several functions in society.

For the most part, then, law enforcement was a private matter for which the injured person was responsible. Religious offences, however, were more serious and public prosecutions could be instituted (e.g. Deut. 13:12ff.). Furthermore when the injured party was too weak to secure his legal rights by himself he could appeal to the king (e.g. I Kg. 3:16ff.). One of the fundamental duties of the king was to promote justice in the land, to ‘defend the cause of the poor of the people, give deliverance to the needy, and crush the oppressor’ (Ps. 72:4). David’s failure to fulfil his duties in this regard gave Absalom an excuse for fomenting rebellion (2 Sa. 15).

Political Authority in the Old Testament

The monarchy was one of several systems of government that Israel experienced. It may well be wondered whether in the bewildering array of political systems and attitudes to those systems there can be discerned any unifying principles. Abraham appears as a father of a wandering clan. Moses is chief, lawgiver, priest and prophet of a group of tribes. The judges exert an ad hoc authority in times of national emergency. Saul is the first king, but he looks more like a glorified judge than the later dynastic monarchs descended from David. For a time national leadership seems to have been eclipsed after the fall of Jerusalem. The last episode in the Old Testament shows Nehemiah, a patriotic Jew, governing Judah as a province of the Persian empire. There is thus great diversity in the systems under which the men of the old covenant were ruled, let alone how their contemporaries were governed. Nevertheless in spite of the differences in the form that political authority took and in the way it was exercised, there are a number of features common to all the systems under which Israel lived at various times.

First, political leaders and other authorities to enforce law were always found to be necessary in Israel. Moses, overwhelmed with the task of judging the people alone, had to appoint rulers over thousands, hundreds, fifties and tens to take over the work, so that he was left only with the hard cases (Ex. 18:13ff.). The leaders of Israel recognized that they needed someone to take over from Samuel and they asked him to find a king (I Sa. 8:4f.). The book of Judges several times points out that the chaos it describes was caused by the lack of a national leader.

Secondly, these authorities were not only necessary but seen as God-given. Just as prophets and priests were anointed with oil as a mark of their divine calling, so were the kings of Israel and Judah. Sometimes other signs of their call are mentioned. The Spirit of God makes Saul prophesy on one occasion (I Sa. 10:10ff.). The part played by the prophets in making God’s choice of a leader known to the man himself is constantly emphasized in the Old Testament. On one occasion God’s choice of a whole dynasty was announced through the prophet Nathan. Speaking to David he said: ‘the Lord declares . . . I will raise up your offspring after you . . . and I will establish the throne of his kingdom for ever’ (2 Sa. 7:11ff.). Rulers of other nations too are recognized as being appointed by God for their job. Cyrus, king of Persia, is called ‘his messiah’ (anointed one) (Is. 45:1). Even Pharaoh is said to have been raised up expressly by God to demonstrate his power (Ex. 9:16; Rom. 9:17). Because political leaders were called by God, they were regarded as sacrosanct: ‘You shall not revile God, nor curse a ruler of your people’ (Ex. 22:28). Similarly David refused to lay hands on Saul, because he was the Lord’s anointed. Prophets with their special access to God’s hidden purposes could initiate revolution, but ordinary mortals whose knowledge was limited were expected to submit to God’s chosen king and wait and pray for God’s deliverance.13

But although political authorities, and in particular kings, were necessary and divinely ordained, this did not mean that they were above criticism. The prophets often told kings when they were going wrong or failing in their duties. These duties were clearly spelt out in the law and it was the leader’s responsibility to teach and enforce that law. In Israel leadership, law and covenant were closely connected. When Moses was first called to lead his people out of slavery, he was told that the sign that God had sent him was that Israel would serve God upon this mountain, i.e. Mount Sinai (Ex. 3:12). Joshua, on taking over the leadership from Moses, was told to meditate on the law day and night (Josh. 1:8). Under the monarchy it was customary to mark the accession of a new king with a service in the temple to renew the covenant. In this service the law was read out.

Upholding the principles of the covenant law was a large assignment. On the one hand the king was supposed to encourage the true worship of God throughout his kingdom. The books of Kings lay the blame for the calamities that befell the Northern and Southern kingdoms largely on the kings who permitted and even encouraged Canaanite worship at the high places and in the temple. Furthermore the king had to maintain justice and peace throughout the land. This meant more than giving fair and equitable decisions in court, it meant actively helping the poor and weak and not leaving them to the mercies of the rich and strong.

‘He delivers the needy when he calls,
the poor and him who has no helper.
He has pity on the weak and the needy,
and saves the lives of the needy’

(Ps. 72:12f).

 

Nehemiah’s tough measures against the nobles and officials who were enslaving their poverty-stricken neighbours are a fine example of the sort of behaviour looked for in political leaders (Ne. 5).

In spite of the necessity and value of human authorities, the Old Testament also recognizes their danger. Though one of the promises to the patriarchs was that their descendants should be kings, though Saul was chosen at God’s instruction to be king, there is a persistent strain in the Old Testament disapproving of kingship, alliances and other political devices. It is not that kingship is bad in itself. Rather it is what people may do with divinely established authority. On the one hand the king may not live up to the expected standards and may abuse his powers (I Sa. 8:7). The elders’ demand that Samuel should make them a king was not wrong in itself, but the reason that inspired it was. They wished to eliminate the risk involved in waiting for God to raise up a leader or judge to save them in a crisis, and to have instead a strong human authority ever to hand, on which they could rely. They had more faith in the institution than in the power of God. Similarly misplaced trust in a God-given institution prompts occasional prophetic polemic against sacrifice, prayer and the temple. But this does not mean the prophets regarded these things as bad in themselves, only that men were misusing them.

So far we have concentrated on kings and other national leaders to the neglect of lesser officials. The latter certainly existed, both in Mosaic times and in the monarchy period. But we know very little of how they were appointed or how they functioned. Deuteronomy 1:13 and 15 no doubt correctly underline the two most important qualifications looked for in such officials: wisdom and experience. It is interesting that in this passage the people are asked to choose men with these characteristics. Whether this means that there was some sort of popular election is conjectural.

In conclusion, the Old Testament presupposes a well-developed system of political authorities within the state, but with the exception of the top man it tells us little about their powers and duties. Throughout the biblical period there generally appears to be one leader at the head of the nation, except in times of chaos or defeat. His title varies: Moses and Joshua are not given one; Nehemiah was a Persian provincial governor; others were kings. But though his title changed, his authority and duties remained much the same. He was regarded as a necessity and endowed with divine authority. For his part, he was responsible for the spiritual and moral health of the nation. He had to enforce the covenant law and protect the interests of the weak.

Summary

Law and authority occupy a very prominent place in the Old Testament. This brief summary cannot hope to have done justice to the very wide variety of material the Old Testament contains. Brevity requires selection, and selection involves subjectivity. Even so, a rough sketch is better than a blank page. Nevertheless I believe certain abiding principles of ethics, of punishment and political authority can be seen to run through very large sections of the Old Testament. In the Old Testament we see these principles applied in a particular situation and culture. The particular laws and institutions we find there are the result of applying these general principles in one particular society. In the New Testament, however, we meet different situations. First-century Palestinian society had changed somewhat from that prevailing a millennium earlier. The wider Graeco-Roman world was even less like ancient Israel. Therefore even if the New Testament endorsed all the theological and ethical principles of the Old, we would not necessarily expect an identical set of laws and institutions to be the result. The changed situation would demand, at some points at least, different applications of the old principles.


Notes

  1. M. Greenberg, ‘Some Postulates of Biblical Criminal Law’, in M. Haran (ed.), Yehezkel Kaufmann Jubilee Volume (Magnes Press, Jerusalem, 1960), pp. 5-28; E. M. Good, ‘Capital Punishment and its Alternatives in Ancient Near Eastern Law’, Stanford Law Review 19, 1967, pp. 947-977; S. M. Paul, Studies in the Book of the Covenant in the Light of Cuneiform and Biblical Law (Brill, Leiden, 1970); J. J. Finkelstein, ‘The Goring Ox’, Temple Law Quarterly 46, 1973, pp. 169-290 and B. S. Jackson, op. cit., pp. 25-63.
  2. LH 6-11, 21-22, 25.
  3. Theft of booty dedicated to God in holy war was punishable by death (Josh. 7).
  4. Cf. HL 1-6.
  5. See J. L. Saalschutz, Das Mosaisthe Recht (Heymann, Berlin, 1853 reprinted 1974), pp. 439ff. for fuller exposition.
  6. For a modern discussion see B. S. Jackson, op. cit., pp. 75-107.
  7. E.g. Murder LH1, sorcery LH2, adultery LH129, incest LH157.
  8. See further discussion in my commentary on Lev. 17.
  9. This is the traditional view, and is to be preferred to B. S. Jackson’s suggestion in Theft in Early Jewish Law (Clarendon Press, 1972), pp. 172ff., that what Leviticus intends for secular offences is restitution of two and a fifth times the amount stolen.
  10. For other explanations see Jackson, Theft in Early Jewish Law, pp. 154ff.
  11. G. R. Driver and J. C. Miles, The Babylonian Laws, I (Clarendon Press, 1952), p. 501.
  12. R. de Vaux, Ancient Israel: Its Life and Institutions (Darton, Longman and Todd, 1973), pp. 150ff.; D. J. Wiseman, ‘Law and Order in Old Testament Times’, Vox Evangelica 8, 1973, pp. 5-21.
  13. I Sa. 24, 26.

Author

Gordon Wenham served as Lecturer in Semitic Studies at The Queen's University, Belfast. This article can be found in Law, Morality and the Bible, edited by Bruce Kaye and Gordon Wenham with a preface by J.I. Packer (InterVarsity Press: Downers Grove, Ill., 1978.



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