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The Bible and Capital Punishment #1

For what and How

THE BIBLE AND CAPITAL PUNISHMENT

I reproduce the entire book (published in 1987) by Lloyd R.
Bailey - Keith Hunt



EDITOR'S PREFACE


There are literally thousands of persons in this country and over
the world languishing in prison cells awaiting execution for
crimes for which they have been convicted. In the United States,
whenever one of these persons is actually scheduled to he put to
death there is a renewal of the debate concerning the death
penalty. Is it just? Is it fair? Does it deter? Is it "cruel and
unusual punishment"? In these heated and emotional discussions,
curiously enough, the Bible is quoted by defenders of each side
of the debate.
Since the purpose of this series is to examine what the Bible
actually does and does not say about contemporary concerns, it
seemed appropriate to solicit a volume on the Bible and capital
punishment. To this end I asked my distinguished colleague, Dr.
Lloyd R. Bailey, Sr., to undertake this investigative task. This
book is the result of his labor. Since the primary assignment of
the writers for this series is to find out and present "what the
Bible says," the volumes thus far have stimulated some lively
exchanges. This volume will evoke the same response, perhaps more
so.
Regarding highly emotional issues such as this, divine sanction
is considered desirable for support for a particular position.
Frequently, defenders of both positions will use biblical texts
incorrectly in the attempt to enlist support for their views. It
is one thing to be honest with a text and admit that one does not
agree with it. It is altogether different to read one's
preconceived ideas into the text so that one can then agree with
it. The purpose of this series and this volume is to guard
against imposing on the biblical texts ideas which they do not
teach. Dr. Bailey has sought to present the biblical teachings
about capital punishment against the backdrop of their own time
and place and to present the rationale of the biblical writers
and thinkers for their positions. I think that this volume can
serve as a lively stimulus for further discussion of this issue,
since the author has attempted to be perfectly honest about the
biblical teaching.
That is what this series is about, and we are indebted to Dr.
Bailey for this provocative volume.

James M. Efird


INTRODUCTION

     My awareness of the problem to which the present volume is
addressed came to me at an early age. A young man was being tried
for murder in my home town during a summer of my grade school
days. In the rural surroundings of this small town (Burnsville,
North Carolina), court week provided the best entertainment
available, and my father took me along to become acquainted with
the proceedings
     The solicitor began by seeking to demonstrate that the
accused had in fact committed the crime with which he was
charged: murder, in violation of the criminal code of the state.
Then, seeking to bolster the chances of conviction, he began to
appeal to the religious faith of the jurors. He turned to the Ten
Commandments and reminded them that "thou shalt not kill" (Exod.
20:18 KJV). Thus, he said, the defendant had broken not only the
laws of man but also the laws of God, and so all the more he
deserved to be put m death.
     The defense attorney, aware of the power of this two-pronged
attack upon his client's life, sought to reverse the thrust of
the biblical injunction. He pointed out that, after all,
execution was itself a form of killing. The commandment, then,
should prevent the jurors (if they have religious sensitivity)
from convicting the defendant of murder in the first degree. To
do so would be a violation of the Bible! What the solicitor was
doing, he suggested, was baldly asking the jurors to defy the
Word of God!
     Whether this reasonable argument, this seeming ambiguity of
the biblical injunction, puzzled the jurors, I do not know. I do
know that it puzzled me, and I have observed that it continues to
confuse readers of the Bible to the present day. Thus, when North
Carolina (and other states) resumed execution after a break of a
decade or more (having awaited clarification of its legality by
the U.S. Supreme Court), the Bible was invoked on both sides of
the issue. The debate raged in letters to the editors of
newspapers (both secular and ecclesiastical) and also in
conversation between the students at my educational institution.
     Unfortunately, when the students asked me for assistance in
clarifying the issue, there was little written material to which
I could direct them, at least not much that was competent,
clearly written, and readily available. Perhaps, then, the
present volume will find some justification.
     It may be useful, at the outset, to state what the goal of
the present volume is and is not. It is not to state and defend,
on biblical grounds, the author's personal opinion about whether
modem governments should or should not authorite execution. It is
not to argue, on pragmatic grounds based upon sociological
findings, whether or not execution serves as a deterrent. It is
not to determine whether execution is, as commonly stated, cruel
and unusual punishment. It is not even to suggest to this or that
religious group (denomination) what its stance should be on this
particular issue. After all, there are a great variety of sources
to which religious groups turn for ethical direction: not merely
the Bible (Hebrew Bible, New Testament, Deuterocanonical books,
i.e., Apocrypha), but also subsequent tradition (Talmud, Fathers
of the church, the Protestant reformers), reason, experience,
cultural values, and personal feelings. I realize, at the same
time, that many theologians have suggested, rightly or wrongly,
that Christian ethics need not be (or even cannot be) "biblical."

     Rather, my goal is in keeping with the general title of the
series to which this volume belongs: to investigate and present
what the Bible says. I shall describe biblical mentality and
practice as they relate to capital punishment during the period
when the Bible was taking shape. I will seek to emphasize that
which is central to the Bibles own agenda, and not pick and
choose texts (as is often done) in order to support a
preconceived notion. This will necessitate pointing out that
certain passages in the Bible will not bear the weight that
persons or groups have tried to place upon them. My overarching
concern will be that the Bible be heard properly; that it not be
abused in the service of other agendas when it is called upon to
testify in the contemporary debate. (This is hardly a surprising
goal for a professor of biblical studies, but it is one made
necessary by such constant abuse of biblical texts.)
     Anyone who undertakes a study of this topic will quickly be
struck by its complexities. The issue becomes even more difficult
when one goes beyond the descriptive task (what the text said to
its own generation) to the issue of contemporary usage (what the
text would mean now, were its authors with us). To the latter
task I will turn but briefly toward the end, raising more
questions than supplying answers. The issue is much more complex
than many of those who discuss it would like to admit. As my
colleague Stuart Henry is wont to say, "To fools, all things are
simple!"

(That that statement is to me somewhat foolish also. Paul did say
once "the simplicity that is in Christ." We take all the verses
on a Bible subject, and we take all the Bible, and the answer
should be then clear and obvious. The problem arises when we do
not seek all the verses on a topic and we do not read all the
Bible for even more light - Keith Hunt)
 
     As this volume neared completion, an article appeared in the
local newspaper (Durham Morning Herald, Aug.29, 1986, p.10-A)
which indicates that the Bible and the courtroom still "mix." A
defense attorney for a woman convicted of first-degree murder
(for having burned her infant alive) had argued against that
potential verdict by citing Matthew 25:40: "As you did it to ...
the least of these my brethren, you did it to me." (To be
precise, his argument was not against the death penalty per se,
but that his client, a diagnosed schizophrenic, was one of "the
least of us.")
     Gratitude is hereby expressed to my M.Div. student Timothy
J. Rogers for the paper entitled "Biblical Perspectives on
Capital Punishment," which he prepared under my direction during
the fall semester of 1984.


P A R T   O N E:    The Hebrew Bible

CHAPTER I

The Practice

     That capital punishment was sanctioned by the society out of
which the Hebrew Bible ("Old Testament") grew, indeed that it's
mentioned with some frequency in the text, even the most casual
reader should know. Such readers are likely to be less clear,
however, about details of the practice. For what offenses was it
mandated? By what methods was it applied? What groups or
officials were authorized to pass sentence and carry it out?
Such factual data will be our point of departure. In chapter 2,
we will turn to the deeper issue of the rationale (justification,
goals) of the practice.

Capital Offenses

     At first glance, the number of crimes for which the death
penalty was considered justified by ancient Israel's canonical
thinkers may seem quite large to some modern Western readers.
This is because, in the present century, the number of such
offenses has been drastically reduced. In eighteenth century
England, by contrast, there were 160 separate offenses for which
one might be put to death.
     The nature of certain of the offenses may also be surprising
to the modern reader and in some cases seem frivolous. Murder and
kidnapping perhaps we can understand: They threaten the security
of the reader, and it is in our "enlightened self-interest" to
oppose them as strenuously as possible. So goes the modem
rationale. But cursing one's parents, sorcery, and sacrifice to
foreign gods? These may strike the modern reader sequentially as
petty, superstitious, and religiously narrow.
     To explain the danger which was seen in each of the capital
offenses would take a volume within itself, and this is not the
task of the present one. It is sufficient for our purposes to
realize that this punishment was proposed within a theological
framework. That is, it was handed down and accepted as the will
of God, revealed under the most sacred and explicit of
circumstances.

     The attached list of seventeen offenses is limited to those
stated in the Pentateuch (the torah of Moses--the books of
Genesis, Exodus, Leviticus, Numbers, and Deuteronomy), and is not
necessarily complete. These offenses are prohibited by God
through the agency of Moses. Still other offenses were punishable
by death during the monarchical period (which began several
centuries after Moses and extended to the exile of the Judeans to
Babylonia, i.e., 1020-587 B.C.E.). King Solomon, for example,
orders the execution of his older half-brother Adonijah for an
act which he considers treasonable (I Kings 2:15-25). Such an act
may have found theological justification (rather than raw power
and the survival of the fittest) in the biblical claim of an
eternal covenant with David and his descendants (2 Sam.7).
     However, since the role of the king in the administration of
justice has been much debated (Boecker, chapter 1), since the
date (and earliest form) of the Davidic Covenant is uncertain,
since it is difficult to disentangle personal and theological
motives in royal decrees and policies, and since only the
Pentateuch has been accepted as Scripture by the totality of
Israel, I have listed only those offenses which have traditional
Mosaic authority. (The Sadducees and Samaritans, for example,
rejected even the rest of the Hebrew Bible as Scripture.)

Capital Offenses

     The list is not necessarily complete, nor, has every
relevant citation been given for a particular offense. It is
important to note that the verb generally used (a form of m-w-t,
"to die") is not the same as that used in the sixth of the Ten
Commandments, traditionally translated as "Thou shalt not kill."
Each quotation is from the first source cited.


1. Murder (Exod.21:12; Lev.24:17):
"Whoever strikes a man so that he die, shall be put to death"
(mot yumat).


2. Contempt for parents (Exod.21:15, 17; Lev.20:9): "Whoever
strikes his father or his mother shall be put to death" (mot
yumat).
"Whoever curses his father or his mother shall be put to death"
(mot yumat).

3. Trespass upon sacred areas or things (Exod.19:1213; Num.1:51;
18:7): "Whoever touches the mountain shall be put to death" (mot
yumat).

4. Kidnapping for ransom (Exod.21:16; Dem.24:7): "Whoever steals
a man, whether he sells him or is found in possession of
him, shall be put to death" (mot yumat).     

5. Sorcery (Exod.22:18; Lev.20:27):     
"You shall not permit a sorceress to live." 
(Lev. uses mot yumat.)   

6. Bestiality (Exod.22:19; Lev.20:15-16):    
"Whoever lies with a beast shall be put to death." 
(Lev. uses mot yumat.)   

7. Sacrifice to foreign gods  
(Exod. 22:20; 20:1-5; Deut.15:1-19):    
"Whoever sacrifices to any god, save to the Lord only, 
shall be utterly destroyed"   
(yochoram).    

8. Profaning the Sabbath (Exod.31:14):  
"Everyone who profanes it mshall be put to death" (mot yumat).   


9. Adultery (Lev.20:10;  Deut.22:22-24):     
"If a man commits adultery with the wife of his neighbor,   
both.. . shall be put to death"    
(mot yumat).   

10. Incest (Lev.20:11-19):    
"The man who lies with (various relatives specified)   
. . they shall be put to death" (mot yumetu).

11. Homosexuality (Lev.20:13):
"If a man lies with a male... they shall be put to death" 
(mot yumetu).

12. Blaspheming the Holy Name (Lev.24:16):   
"He who blasphemes the name of the Lord shall be put a death"
(mot yumat).

13. Contempt for certain judicial decisions (Deut.17:8-13):
"The man who acts presumptuously, by not obeying . . . shall die
[met); so you shall purge the evil."

14. False witness in court against someone charged with murder
(Deut.19:16-21): "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
... life for life."

15. Harlotry under specified conditions (Lev.21:9;
Deut.22:18-21):
"The daughter of any priest; if she profanes herself by playing
the harlot ... she shall be burned with fire."
"They ... shall stone her to death ... [for) playing the harlot
in her father's house."

16. Negligence that results in a death (Exod.21:28-29;
Deut. 22:8):
"When an oz gores a man ... to death ... and its owner has been
[previously] warned ... its owner ... shall be put to death"
(yumat).

17. False prophecy (Deut.18:20):
"The prophet who presumes to speak a word in my name which I have
not commanded him to speak ... shall die" (met). (The verb will
allow death by divine decree, but compare no.I3.)


Trial or Punishment

     Few instances are to be found in the so-called "historical
books" (Joshua-Esther in the RSV), because their focus is upon
national destiny and monarchical leadership rather than upon
activity in the local courts.

Gen.38:24


Lev.24:10-16; 1 Kings 21:10; Acts 6:11; 7:58; 26:9-11

Num.15:32-36

Num.25:1-9; 2 Kings 10:18-27

1 Sam.28:3,9

2 Sam.3:27; 4:5-12; 14:6-7; 21:1-9

John 8:3-11

Acts 21:27-31

Jer.26:1-9 This may be a case of sedition under royal law; note,
however, that he is acquitted because he "spoke in the name of
the Lord" (v.16).


     The careful reader of Israel's legal materials will be
struck by their diversity in form, language, and content, as well
as by the fact that some of the Bible's major characters violate
its prohibitions seemingly with impunity. Those who wish to
understand the reasons for these curiosities may pursue the
matter with the aid of Appendix A.

Methods of Execution

     Although there is no systematic discussion of the topic in
the Bible, a survey of the accounts of execution reveals that the
accepted methods were stoning, burning, and the use of various
weapons of war (sword, arrow, etc.).

     The most common means apparently was stoning; the reason for
this will appear below. It is specified for the following
offenses: contempt for parents (Deut.21:21), trespass upon sacred
areas (Exod.19:19), sorcery (Lev.20:27), worship of foreign gods
(Deut.17:5), profaning the Sabbath (Num.15:85), adultery (Deut.
22:22), blasphemy (Lev.24:14), and harlotry (Deut.22:21). In
addition, stoning is attested in cases of violation of "herein"
(a pronouncement by which objects obtained through a "holy war"
are to be destroyed - to kJosh.7:25). It also seems to have been
popular with mobs, comparable to a modern "lynch mob," who
rebelled against authority or who were enraged at some violation
(Exod.17:4; Num.14:10). In one case (trepass upon sacred areas),
shooting with arrows is an allowable alternative to stoning
(Exod.19:13).

     Death by burning is specified in case of certain sexual
offenses: marriage to one's mother-in-law (Lev.20:14) and
harlotry by a priest's daughter (Lev.21:9). In another case, it
is mentioned in connection with harlotry (Gen.38:24) but the
issue is a special one, complicated by the levitate regulation.


     In cases where very large groups were to be put to death,
usually for apostasy (worship of other gads), it seemed expedient
to use the sword (Exod.32:15-29). This was even mandated in the
case of an entire city (Deut.13:12-15). Indeed, apostat2 Kings
23:20). Execution at the command of the king seems to have taken
the form of beheading (2 Kings 6:31; see also 2 Sam.16:9).

     As for murderers, they are to be struck down by the"avenger
of blood" (Num.35), presumably by whatever weapon is at hand,
usually the sword. In that fashion, the ancient requirementof
Genesis 9:6 would be satisfied: "Whoever sheds the blood of man,
by man shall his blood be shed."

     In contrast to the New Testament and the rabbinic period
(where stoning was specified as the most severe of the options
for execution), death by bloodshed seems to have been the
ultimate horror in ancient Israel. It was, by then, possibly an
irrational fear, grounded in previous (pre-Yahwistic) demonology:
The demons lurking beneath the ground would be able to consume
the blood (life-force) of the slain. Thus, Abel's blood "cries
out from the ground" (Gen.4:10). In Israel's canonical, Yahwistic
thought, demons do not exist. Nonetheless, a fear of bloodshed,
originally connected with demon worship, lingers after Israel's
concept of the Deity has denied the power of demons and called
their very being into question.

Specification of the Executioner

     By what institution (institutions) were guilt and innocence
decided, and at whose hand was a sentence of death to be carried
out? Since the period of the Hebrew Bible covers some two
thousand years, it is hardly surprising to find that new
regulations and institutions sometimes arose without necessarily
replacing the old ones. Thus, we need not expect comprehensive
codes and absolute uniformity of legal practice. At the same
time, it must be realized that the texts that have come down to
us are not concerned to convey a systematic picture of legal
procedure. The concern, rather, is to describe God's activity and
Israel's response. Consequently, any modem description of the
legal system must he gathered from scattered remarks made in
passing in the texts.
     Since one component of Israel's history involved a
sentinomadic way of life (e.g., the period of the patriarchs),
where the head of the family (paterfamilias) had unrestricted
authority over its members, we need not be surprised to find a
story such as is related in Genesis 38: The patriarch Judah is
able to pronounce a death sentence on his daughter-in-law without
consultation of anyone. Another illustration may be found in
Genesis 16: Abraham, as head of the family, is petitioned by
Sarah that justice be done. It is an issue over which he has
absolute jurisdiction. With the passage of time, however,
restrictions were placed upon this so-called "father law."
     In addition to the father, judicial authority is invested in
the elders. The institution of the elders seems to have arisen
from tribal law: Disputes between blood-related families were
decided by an assembly of heads of families. This then gave rise
to a formal legal assembly within settled village life.

     The elders met in the public area of the city gate, and in
some cases the paterfamilias' rights were surrendered to them.
Thus, by the time of the Deuteronomic legislation, parents of
contemptuous offspring were required to bring the rebel before
the elders of the town. Nonetheless, the parents' testimony alone
was sufficient to convict them, and "all the men of the town"
were required to carry out the death sentence, which almost
necessitated that it be by stoning (Deut.21:18-21; see also
22:21).

     Community-wide participation in execution is recorded in the
case of the Sabbath violater (Num.15:85-86), a blasphemer of the
Holy Name (Lev.24:14), trespass upon sacred areas (Acts
21:50-91), and adultery (John 8:9-11). Thus, it seems to have
been the norm for the capital offenses which the Pentateuch
specifies. Eyewitnesses to such crimes, who testified to what
they had seen, were compelled to participate in, and indeed to
initiate, the process of execution (Deut.17:7), thereby
impressing upon them the consequences of false witness. In
certain other punishments, however, it is the elders themselves
who carry out the sentence (Deut.22:18-19).
     That priests played a role in some judicial events is well
attested. For example, when a case could not be decided on the
basis of proof, the accused could seek to clear himself by means
of oath or ordeal. The former consisted of a self-curse in case
of false witness ("May God do so-and-so to me, if . . . "), and
is alluded to in Exodus 22:8, 11. It was assumed that the fear of
God was sufficient to ensure the integrity of the procedure, and
thus the oath settled the matter (22:11). That the oath was to be
taken in the presence of the priest ("near to God") is explicitly
stated. In the ordeal the accused was subjected to a physical
test administered by a priest, a procedure well attested
throughout the ancient world. Since Numbers 5:11-81 contains a
detailed and dear illustration, the reader is referred to it for
clarification. (For further discussion, see Frymer.)
 
     In matters of proper ritual ("the clean and the unclean"),
the priests were the sole authority (Lev.10:10), and by the time
of Deuteronomy it is stated that they might play a role in "every
dispute and every assault" (21:5) and in a process of appeal
(17:8-13). We have no concrete example of how appeal took place,
however. What is stated is that anyone who rejects the decision
of the priest in matters of appeal is to be put to death (17:12).
Rejection, at that stage, was apparently regarded as an
uncompromising rejection of the covenant and of the Deity who
undergirded it.

     A separate judicial system arose under the monarchy. (The
jurisdiction of such courts has been variously interpreted by
modern scholars; see Boecker, pp.4049.) It is clear that soldiers
and members of the royal bureaucracy were answerable to the king
and could be executed at his command for violation of certain
regulations (see 2 Sam.19:16-23). It has been argued that
ordinary citizens of the royal capitals (Samaria and Jerusalem)
were subject to the jurisdiction of the king (as paterfamilias of
the city?) in a way that citizens of other locations were not
(see especially I Kings 3:16-27). It is also recorded that a king
might appoint judges in the various cities of his realm (2 Chron.
19:5). However, any attempt to infringe upon the jurisdiction of
the local courts (elders) or of the "Judge" (who interpreted
Israel's covenant with God; see I Sam.7:15-17) was strenuously
resisted. For example, see I Samuel 15, where King Saul's
departure from Samuel's directive leads to a scathing
denunciation. Nonetheless, the right of the king to set certain
regulations for his subjects, and to execute those who violated
them, was ordinarily not challenged. Indeed, the office was
underwritten by Mosaic authority (Deut.17:14-20), and one was
instructed "not (to] revile God, nor curse a ruler of your
people" (Exod.22:28). It is a theological perspective on
government that will be reiterated in the New Testament, as we
shall see.
     When it was necessary for one of the king's subjects to be
executed, it was done by professional soldiers. The sword seems
to have been the weapon of choice (2 Sam.4:12; I Kings 2:25).

     What was the procedure in case of murder? In much Near
Eastern thought, ancient and modern, the killing of a member of
one's family or clan (extended family) by an outsider
necessitated blood revenge. The blood of the kinsman must be
avenged by the death of the killer. The apparent reason for this
was that the clan had suffered a loss of its collective power as
well as dishonor to its members. The prior balance between two
groups had been upset and thus the killer's clan must suffer
equal damage through blood vengeance (Boecker, pp.96-98).
     Although modern Western persons, steeped in individualism,
no longer share such deep-rooted feelings of solidarity, they may
nonetheless be able to understand the pragmatic value of the
custom. At a time when there was no central, wide-ranging
administration of justice, it helped to ensure the safety of the
individual and thereby to maintain the stability of the clan.
     This ancient custom is apparently attested in the song of
Lamech: I have slain a man for wounding me, a young man for
striking me. If Cain is avenged sevenfold, truly Lamech
seventy-sevenfold. (Gen. 4:29-24)

     An illustrative incident may be found in 2 Samuel 21:1-9,
where the Gibeonites are granted the lives of seven of Saul's
sons because of blood guilt resulting from his previous acts.
     Israel sought to modify this ancient custom in at least the
following three significant ways:

1. Killing was placed within a theological (rather than
sociological and political) framework. Life belongs to God and
thus cannot be taken merely to suit such human values as balance
of power or pride of group (chapter 2). Therefore, punishment
must also be applied to the members of one's own group in case of
murder (2 Sam.14:1-11).

2. Inability to apprehend the killer does not justify extending
the blood vengeance to relatives: "Every man shall be put to
death for his own sin" (Deut.24:16).

3. A distinction must be made between justifiable killing and
murder. Hence when Asahel was killed by the butt of Abner's spear
after Abner had sought to avoid injuring him (2 Sam. 2:18-28) and
brother Joab avenged his death by killing Abner (9:26-27), it was
nonetheless reckoned as an act of murder on Joab's part (I Kings
2:28-84). Similarly, "cities of refuge" were established
throughout the country to which "manslayers" could flee from
"avengers" (Num.95:9-28). Should they be able to reach the city
before the "avenger" overtook them, then they were immune until
the elders of the city had reached a decision about whether they
had acted intentionally. If the elders' decision was that they
had so acted, then "the avenger of blood shall himself put the
murderer to death." If not, then they were granted sanctuary in
the city of refuge. However, should they stray outside the city,
then their "avengers" could strike them down with impunity.

     Whose obligation was it to assume the role of the "avenger"
(go el)? In other legal situations, the term is used for a near
relative (hence RSV at Lev.25:25, "next of kin"). Hence Boaz is
the "go el" for Naoml and Ruth (Ruth 2:20; 9:12), who acts to
preserve the property of Ruth's husband (4:1-6). It is plausibly
and generally assumed, therefore, that the "avenger" is a male
relative of the slain. However, a few interpreters have suggested
that he was a public officer sent out by the elders of the
killer's city (Phillips, pp.101-9).

Limitations and Safeguards

     Unlike the.. codes of its neighbors (and unlike those of
modern societies, for that matter), ancient Israel's Pentateuchal
laws allowed capital punishment only for crimes against God and
against persons. Its ultimate concerns were the sanctity of life
(chapter 2) and the purity of God's people and their worship.
     This conspicuously excludes, for example, execution for
crimes against property (e.g., theft, burglary, arson). A burglar
may not be killed during daylight hours (under the assumption
that his agenda is theft?), but at night may be killed with
impunity ("there shall be no blood-guilt for him," Exod.22:2, the
assumption being that the homeowner may justifiably expect
violence?). It is a different matter, of course, with theft of
God's property (e.g., items placed under "herem" in "holy wars,"
as in Josh.7). That results in execution.
     No exception is to be assumed in the case of David's
reaction to the reported theft of a poor man's lamb (2 Sam.
12:1-6): "The man who has done this deserves to die." That is
impassioned rhetoric, with the thief's legal accountability then
outlined: "He shall restore the lamb fourfold," in keeping with
Exodus 22:1.

     The capital crimes are often circumscribed with precise
definitions and limiting circumstances. For example, it must be
premeditated murder, and not accidental or out of necessity
(Deut.19:1-13). Contemptuous offspring most be dearly
intransigent rather than occasionally annoying, and both parents
must so affirm (Deut.21:18-21). (It is doubtful that this meant a
child, as opposed to grown offspring.) Sabbath-breaking is given
an illustrative definition (Num.15:32-36). The punishment for
false witness is only in accordance with the damage it might have
done (Deut.19:19). Harlotry merits death only in cases of a woman
yet in her father's house or the daughter of a priest (Deut.
22:21; Lev.21:9).Judges must be aware that witnesses may be
malicious or self-serving, and thus two witnesses are necessary
for conviction. This is specifically stated for the charges of
worship of foreign gods (Deut17:6) and murder (Num.35:30), and
possibly was the rule for the other capital cases as well. In
order to prevent false witness, such persons must actually
initiate the process of execution (Deut.17:7).

     There is evident concern that the death penalty be applied
equitably. Whereas in other legal systems in the ancient Near
East, monetary compensation was allowed in case of murder (Middle
Assyrian Code, A.10; Hittite Laws, 1-5), in Israel it was
strictly forbidden (Num.35:91). Whereas such systems allowed a
sliding scale of compensation according to the social status of
the parties involved in a personal injury case (Hammurabi Code),
the Bible arguably imposes the death penalty for killing even a
slave ("he shall be punished," Exod.21:20, according to the
Samaritan Pentateuch, Talmud, and traditional Jewish
interpreters). Thus, the well-to-do are forbidden legal advantage
over their fellow citizens, in contrast to modern American
society, where such advantage is easily available to the
affluent.

     It has been argued that, in some cases, the death penalty
was the maximum of several options available in judicial decision
(Wenham, p.285). However, while there are a few cases that
perhaps evidence uncertainty as to the gravity of the offense
(blasphemy, Lev.24:10-16; Sabbath violation, Num.15:32-36), this
is a slender basis for suggesting that "the penalties prescribed
in the law were the maximum penalties."

     A few scholars have argued, on grammatical grounds, that the
sentence "shall be put to death" (mot yumat) may indicate
permission rather than demand, that is, it could mean, "may be
put to death" (Buss, pp.55-56). However, while such a translation
of the phrase is grammatically possible, the contexts in which it
occurs make it extremely unlikely (see Appendix B).

     (But the example of David's adultery and planned killing of
Bathsheba's husband, shows clearly that "mercy" could be
extended. David was not put to death, by Israel's law system or
by God. Other punishment was employed upon David - Keith Hunt).

                            ...................

To be continued

Entered on this Website October 2007

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