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Capital Punishment #2

Rationale and Demurs

CHAPTERS TWO and THREE of the book


The Rationale


     Since the Bible's legal sections are a subordinate part of
its larger narrative purpose, they are not intended to be
comprehensive. It is thus not surprising that such sections are
scattered, fragmentary, incomplete, and that they lack a preface
which sets out their justification and goals. In only a few
instances will a motive for the death penalty he stated, and
sometimes it is not necessarily the one that is at the heart of
the matter. Nonetheless, there is an overall theological
perspective at work.

     Let us begin with the issue of deterrence, much under attack
by sociologists and theologians in the present. The Deuteronomic
legislation will categorically state from time to time that
execution in Israelite society will have the following effect:

"And all the people shall hear, and fear, and not act
presumptuously again" (Deut.17:13; see also 18:11; 19:20; 21:21).
Ryrie (p.217) may have had this in mind, although he cites only
New Testament texts (2 Pet.2:13), when he states: "What, after
all, is the purpose of capital punishment? ... ultimately the
biblical purpose seems to be the promotion of justice by civil
government."
     On a recent national news program ("Sixty Minutes"), a
prosecutor was asked about his justification for trying a
juvenile for murder (a particularly vicious instance of it, to be
sure), and his heartfelt response was, "In order to send a
messagg!" Opponents of the death penalty never tire of pointing
out that, in their opinion and according to studies, the
"message" is not clear; the deterrent fails to deter. In the case
of those who subsequently commit the crime, the opponents are
undeniably right. In principle, however, this does not bear upon
the matter of whether it has prevented others from taking human
life. There are those who will testify that it has. And so the
discussion goes.
     Deuteronomy dearly affirms that, for the society of its
time, the punishment was an effective deterrent. It is a claim,
undergirded with canonical authority, for which no
counterevidence is possible. Whether it continues to deter in our
society (which the text does not state) is an issue that need not
detain us here, despite all the passion that it has generated.
And the reason is simply this: Deterrence is at the periphery of
the Deuteronomist's concern (and of the entire Bible, for that
matter). Whatever bonus effect it may have had (or does have), it
does not touch upon the center of the Bible's attitude toward
capital punishment. That center has to do with theology (as we
will soon see), and it is a serious misunderstanding so to
construe it that modem social sciences can pass judgment upon it.
Canon, in such a case, has been reduced to evidence of an
antiquated penology.

     We move toward a more basic concept when we read another
expression of the Deuteronomic legislation. Through the process
of execution, "You shall purge the evil from the midst of you"
(Deut.13:5; 17:7; 19:13; 21:21; 24:7). (RSV's "purge," for the
Hebrew verb b--r, is rendered as "banish" in JB and "rid yourself
of" in NEB.) It would be easy to suppose that the "evil" which is
to be removed is the criminal, or even the repetition of the
crime (i.e., that deterrence is again meant). That this is not
the intention is suggested by Deuteronomy 21:1-9, where the
corpse of a murder victim has been found and there is no way of
knowing who committed the crime. The community must now enact a
complex ritual wherein the Deity is implored to "set not the
guilt of innocent blood in the midst of thy people Israel; but
let the guilt of blood be forgiven them." Thereby "you shall
purge the guilt of innocent blood from your midst."
     The idea seems to be that the grave crimes for which
"purging" is necessary are offenses in the eyes oŁ the Deity,
offenses which have inevitable negative consequences ("evil") for
society. In case of murder, the Deity is offended and imputes
bloodguilt to the group within which the event has taken place.
The Deity then allows for a redeeming response on the part of the
group, and if none is forthcoming, enacts justice in a way that
only a Deity can.
     While society-wide accountability for individual acts of
violence may be alien to our modern Western mentality, with its
emphasis upon individuality and freedom of the will, this basic
conviction of the Bible remains clear and understandable; the
Deity is deeply offended by certain acts and expects Israelites
not only to avoid them but also to take appropriate action when
anyone performs them.
     The Deity's concern that certain actions not be tolerated is
clarified when Israelite law is viewed in its overall theological
context. Its starting-point is not such modern, rational, and
pragmatic principles as "the greatest good for the greatest
number," "enlightened self-interest," "personal freedom," or
"public order." Rather, it is a religious law. As such, it goes
beyond other ancient Near Eastern codes which invoke the gods of
the society as their guarantors. King Hammurabi of Babylon, for
example, in the prologue to his famous code, states that the
great gods appointed him "to promote the welfare of the people
... to cause justice to prevail in the land," and that Marduk had
commissioned him "to guide the people aright, to direct the
land." In the epilogue he continues, "By the order of Shamash,
the great judge of heaven and earth, may my justice prevail in
the land." The biblical perception, by contrast and comparison,
is that God is more than a guarantor of the covenant (of which
legislation is a part): God is a party to the agreement
(covenant) which is articulated, as it were, in divine language.
Israel believed that the Deity (Yahweh; in English versions, "the
Lord") had singled them out for no discernible reasons other than
divine freedom and graciousness (Exod.5:14; 55:19). Consequences
of the selection (election) included: the promise of land,
offspring, and blessing (Gen.12:1-5); deliverance from Egyptian
bondage (Exod.5:6,16-17); guidance through the Sinai wilderness
(Exod.15:21-22); the gift of the land of Canaan (Num.15:1-2); and
revelation of a body of regulations whereby (if the people
responded in gratitude to the divine initiative) Israel would
become "to me a kingdom of priests and a holy nation" (Exod.
19:6).
     Israel's way of expressing this conviction resembles the
treaties (covenants) which ancient Near Eastern monarchs made
with their subordinates. The great king (God) has performed
gracious deeds and now invites the recipient small state (Israel)
to formalize a relationship and to respond in specified ways: (1)
exclusive loyalty to the great king, and (2) consideration for
the right of fellow covenant-members. Thus we read, at Exodus 20:
"I am the Lord your God, who brought you out of the land of
Egypt.... [therefore] You shall have no other gods before me....
Remember ... You shall not."
     From this understanding of the relationship between the
Deity and Israel flowed the central motivation for obedience to
the commandments: gratitude, perhaps best expressed by Jesus'
words, "If you love me, you will keep my commandments" (John
14:15).
     By similar analogy with political treaties, there was an
expectation of blessing or curse upon those who, having freely
accepted God's invitation, then either kept their word or
betrayed it. There was a need to safeguard the covenant
relationship from crimes against the Sovereign One (e.g.,
apostasy, profaning the Sabbath, blasphemy), from attitudes
which destroy the People of God (e.g., sorcery, adultery, false
witness), or from acts which tarnish the holiness which is to
characterize this "realm of priests" (e.g., bestiality, harlotry,
incest).
     Prior to the enactment of the Mosaic covenant, various
reasons may have been given for avoiding this or that activity,
including pragmatic justification for execution, in some cases.
For example, blood revenge against a killer may have been thought
necessary in order to maintain the balance of power between
clans. Similarly, refusal to obey the judicial decisions of the
highest court could not be tolerated if there was to be an
orderly society.
     Under the covenant initiated at Mount Sinai, however, such
older motivations became secondary. It was sufficient to explain
all penalties as the consequence of violation of the covenant
relationship. Thus, here and there in the text (preceding or
following a specific regulation), there will be a quick reminder
of the overall picture: "I am the Lord your Gal," the very words
with which the covenant formultion began at Exodus 20:2 (so
Lev.18:2,80; 19:4,10,12; 28:49). It is interesting to note that
this reminder (justification) is concentrated in the so-called
priestly literature (see Appendix A), which contains many
requirements which, to the modern mind, may seem unduly
restrictive or lacking in compelling logical justification (e.g.,
bestiality, homosexuality). Thus, that which one might most
easily wish to ignore is that which is most dearly subject to
divine authority.
     Therefore, crimes which undermined the existence of the
community, which treated God's manifest graciousness with
indifference, which turned the community's oath of loyalty (Josh.
24) into a lie, could be taken to justify the death penalty. It
was not so much that a specific act was intrinsically wrong, or
that it had negative practical consequences. Rather, certain acts
were evidence of ingratitude, infidelity to one's oath,
rebellion, and (in the last analysis) an attack upon God (if not
atheism).


     The priestly regulations, standing at the culmination of
Pentateuchal development, uniquely stress a new motivation for
obedience: holiness. Why does one follow a certain life-style and
avoid others? Because the Deity invites one to live in imitation
of the divine nature: "You shall be holy, for I the Lord your God
am holy" (Lev.19:2; 20:26, etc.). Basic to the idea of holiness
is separation, distinction: "And you shall not walk in the
customs of the nation which I am casting out before you; for they
did all these [forbidden] things, and therefore I abhorred
them.... I am the Lord your God, who have separated you from the
peoples.... You shall be holy to me" (Lev.20:28-26). Activities,
therefore, which breach that wall of distinction destroy the
people of God and are a renunciation of its Sovereign Lord.
     In the case of murder the biblical materials (and the
priestly regulations in particular) offer the dearest and most
sustained justification of the death penalty, the very issue
around which the modern debate has raged.
     Israel's priestly theologians were much concerned to
regulate human activities in which blood was involved. That there
was a connection between life and blood was obvious: As blood
flowed from the body, the organism grew progressively weaker
until death resulted. It seemed obvious, therefore, that the
life-force resided in the blood: "for the life of the flesh is in
the blood" (Lev.17:11). Not surprisingly, therefore, in some
societies ancient (e.g., Greece) and modern (e.g., New Guinea),
blood was deliberately consumed in order to incorporate the
life-force of the victim (whether animal or human) into that of
the consumer. While persons in Israel may not have sought to
consume blood for that reason, it is clear that it was
nonetheless considered to be an arrogant act. Life originated by
a special act of the Deity (by the powerof the divine breath, as
the ancient story in Gen.2:7 put it). **Consequently, humans were
not free to terminate it, save under conditions specified by
Gad.** Even food animals must be brought to the sanctuary and
slaughtered in a prescribed ritual whereby the blood is removed.
     Failure to do so results in "bloodguilt" (Lev.17:4), a term
which is elsewhere used for the murder of a human being (Exod.
22:2). How much more the offense, therefore, if human life
("created in the image of Cod," Gen.1:26) is taken without proper
sanction! One has acted arrogantly against a life-force that is
an extension of God's own life-giving power. It is, to put it
baldly, "an attack upon God" (Patrick, p.72). Even an animal who
kills a human is to be destroyed (Exod.21:28). A human who does
so all the more forfeits any right to life (Gen.9:1-7). No
alternative is to be allowed (Num.85:91) and the community must
not be swayed by values to the contrary: "Your eye shall not
pity. . ." Such modem rationalizations as, "What good would it do
to take the murderer's life? Does it bring the victim back?" Are
beside the point. Nor would it be accurate to characterize the
Bible's point of view here as the type of retaliation or
vengeance that is unfitting of sensitive religious persons (and
which Christianity supposedly would forbid). The murderer is no
longer to be executed in order to satisfy the demands of family
or clan. It is the Deity who makes the demand as the Lord of
Life. Is compensation due for the loss which the Deity has
suffered? (Phillips, pp.95-99).

(And so it is that the Diety has the right to REMOVE the death
penalty - to show mercy and grace - as in the case with David and
his sins that the law per se carried the death sentance. Also
Jesus showed mercy to the woman brought to Him, found in the act
of adultery - John 8. The people - religious leaders - said that
Moses in the law cammanded such persons as this lady to be stoned
to death, for the sin of adultery. Jesus, as Deity, could
overrule that law and show mercy, if the situation warranted it -
Keith Hunt)


CHAPTER THREE

Some Traditional Demurs

     When Scripture is invoked in a discussion of capital
punishment, advocates usually appeal to the Hebrew Bible, while
opponents concentrate upon the New Testament. We will turn to the
question of the correctness of this supposed contrast in part 2.
In the meanwhile, attention needs to be focused upon a few texts
which might seem to be out of conformity with the overall
approach of the Hebrew Bible.

1. There is the sixth of the Ten Commandments (the fifth
commandment, as Roman Catholics and Lutherans number them), which
seems to state, categorically, "You shall not kill" (Exod.20:18;
Dent.5:17). Does that forbid execution? To this complex issue,
deserving of detailed discussion we shall turn in chapter 4.

2. God said to Noah, "Whoever sheds the blood of man, by man
shall his blood be shed" (Gen.9:6). Is that possibly a predictive
statement (or observation about reality), rather than a
prescriptive (legislative) one? That is, just as Jesus observed
that "all who take the sword will perish by the sword" (Matt.
26:52), without thereby sanctioning execution, so perhaps God is
merely commenting upon the way that the world will work and not
ordering any action on society's part. So argued Charles Spear
amidst a mid-nineteenth-century debate about capital punishment
(Essays on the Punishment of Death, cited in Megivera, p.147).
     While Genesis 9:6, standing in isolation, might be taken in
either of these senses, no such ambiguity remains when it is
considered in context. The passage begins with imperatives (9:1
ff.) and continues with prohibitions (9:4), making it dear that
the Deity is directing, not laconically describing reality. No
doubt remains after the statement, "For your lifeblood I will
surely require a reckoning" (v.5). The King James Version is a
bit more literal: "And surely your blood of your lives will I
require," making it quite dear what the nature of the Revised
Standard Version's "reckoning" is.

3. When the murderer Cain fears that "whoever finds me will slay
me" (Gen.4:14), the Deity places him under special protection,
"lest any who came upon him should kill him" (v.15). It could
thus be argued that, in contrast to the requirements of Moses and
to the practice of the later Israelites, here we have the
ultimate model for response to the situation: The Deity evidences
graciousness in response to the plea of the first murderer. Such
a possible precedent for judicial behavior in the present was
heard by George Cheever, writing only a short time before Spear
(Punishment by Death: Its Authority and Expediency, cited in
Megivern, p.146). This point of view was recently advocated by a
seminary professor of Christian ethics (Milligan, p.176).
     Cheever's reason for rejecting this interpretation is in
keeping with his book's title. It runs as follows: Look what
happened as a consequence of the failure to exterminate the line
of Cain! It led to the corruption of the world at the time of
Noah, and necessitated the flood. It was an inadequate reason for
rejection (touching on God's incompetence), as his critics
(including Spear) were quick to point out. Nonetheless, Cheever's
rejection of the interpretation was entirely merited.
     The purpose of the Cain and Abel story, from the point of
view of modern scholarship within the church and synagogue, will
seem quite alien to the average reader, and there is space here
to sketch it only in broad oudine. 

     The story, standing alone, is apparently a folk-explanation
for the traveling metallurgist of the ancient Near East,
"wandering" (Gen.4:16, RSV footnote) from village to village in
order to ply his trade. Indeed, the word "cain" means something
like "blacksmith" in Hebrew. Members of this guild wore a sign
(tattoo?) on their foreheads to signify their protection by the
gods of the underworld into whose realm they had descended in
order to learn their skills and from which they secured rock with
which to make metal. The story thus explains how, in primeval
time, the first metallurgist ("Cain") received his sign of
protection and why he "wanders" over the earth.
     However, Israel's theologians have placed the story in a
larger context, which stretches from creation to the call of
Abraham, and thereby have given it a new meaning: The status of
human beings after their relationship with God has been strained
to the limit. In no case, therefore, does the story have to do
with what society ought to do with murderers. (Those wishing to
pursue this biblical chapter further should begin by coming to an
understanding of the type of literature that this is: See the
article by Priest. Then, one must learn something of the status
of the metallurgist in the ancient Near East; see, e.g., Gaster,
pp.51-75. Finally, in order to understand the use to which the
ancient story has been put in Israel's sacred literature as it
now stands, see, e.g., von Rad, pp.99-106.)
     The understanding against which Cheever argues illustrates
well a rule of interpretation which will serve us later when we
study the story of Jesus and "the woman taken in adultery" John
8:8-11; see chapter 9). And that rule is this: Beware of
extracting rules for moral behavior from events in a narrative!
For moral guidance, we should turn to materials that are
instructional in form (e.g., the Ten Commandments, or the Sermon
on the Mount).

4. Since most modern advocates of the death penalty for murder
cite the Bible but do not insist upon this penalty for all the
crimes for which Scripture mandates it, is there not a problem of
inconsistency? Thus Dr.Benjamin Rush observed, as part of the
first great debate on the topic in the newly formed United
States: "If the Mosaic law with respect to murder be obligatory
upon Christians, it follows that it is equally obligatory upon
them to punish harlotry, blasphemy, and the other capital crimes
that are mentioned in the Levitical law by death" (Considerations
on the Injustice and Impolicy of Punishing Murder by Death, 1792,
cited in Megivern, p. 144).
     This is a refrain that is almost certain to surface in any
contemporary discussion of the topic. It should be clear,
however, upon a moment's reflection, that the "inconsistency" has
no bearing upon the witness of the Bible. While it may present a
problem for advocates of capital punishment and one which they
need to clarify, it does not arise merely from the preferences or
social conditioning of the advocate, since it has its roots in
the biblical tradition. The Bible itself singles out murder for
special condemnation, and permits no compensation or pity.

(In the written law per se there would seem to be no pity. But
Israel had a "judge" system, who could take into account various
character attitudes. So it was with David who planned murder of
Bathsheba's husband, and certainly adultery with Bathsheba. God,
acting as supreme judge, through his prophet Nathan, had MERCY,
did not demand the death penalty upon David. This one example
alone should show that some of the reasonings/conclusions in this 
study are INCORRECT - Keith Hunt)

     Westermann (p.468), a foremost interpreter of Genesis, is
surely right when he says: "Here in Genesis 9 murder is something
utterly on its own; nothing can be compared with it. Throughout
the whole sweep of human history, the murderer by his action
despoils God." 
     Moreover, while Jesus apparently felt free to set aside
certain traditional regulations pertaining to "clean" and
"unclean" foods, he did not do so for the regulaton concerning
murder. He is no more and no less guilty of "inconsistency" than
are modern advocates of the death penalty. (See the discussion of
John 8:3-11 in chapter 9.).

(Incorrect again. Jesus DID NOT set aside laws regarding "clean"
and "unclean" foods. This is false theology that the Protestants
are eager to teach - they can then disregard the laws in Lev.11
and Deut.14 concerning clean and unclean foods. Studies on this
Website under "Food Laws" will give the truth of the matter  - 
Keith Hunt)

5. The prophet Ezekiel announces to the exiles, "As I live, says
the Lord God, I have no pleasure in the death of the wicked, but
that the wicked turn from his way and live; turn back, turn back
from your evil ways; for why will you die, O house of Israel?"
(33:11) To some readers, that may seem clear enough! God not only
takes no "pleasure" in the death (execution?) of the "wicked"
(criminal?), but prefers that they "turn back" (be
rehabilitated?).

     Such an understanding might indeed be justified if one could
read the Bible atomistically, that is, a verse at a time, with
the understanding that the verse has a self-contained eternal
truth. However, if the prophet is speaking to a specific audience
about a particular problem, and if his response covers several
verses (or even a chapter), then the modern interpreter must hear
him out and look for the central idea. That is, what a verse says
may not be what the context (and thus the prophet) means.

     In contrast to the King James Version, which prints each
verse as if it were a separate paragraph, other translations may
group verses together into larger thought-units (para-graphs).
Thus, the Revised Standard Version divides Ezekiel 33 into the
following units: verses 1-6, 7-9, 10-16, 17-20, 21-22, 23-29, and
30-33. One of the reasons for such division is the Deity's
address to the prophet, "Son of man" (w.2,7,10,23,30). Curiously,
the Revised Standard Version ignores one such address as the
indication of a new speech: verse 12. By contrast, the New
English Bible puts a division there, indicating that verses 10-11
go together (so also NAB, TEV, HIV). It thus becomes clear that
the words are addressed to "the house of Israel" (a wider reading
reveals that these are the Judean exiles in Babylonia),

(Incorrect again as for the technicality of it. The House of
Israel was in the Assyrian Empire, taken away over 100 years
prior to Ezekiel writing this, but the basic truth of the writer
in this section is correct - Keith Hunt) 

in response to their lament that "our transgressions ... are upon
us, and we waste away ... how can we live?" (Ezek.33:10). The
Deity's response, then, is directed to those exiles, who are
despondent about the possibility of ever returning to their
homeland. Word has reached them that the city of Jerusalem, the
center of their hope for return, has fallen into the hands of the
Babylonians (v.21).
     Who are the wicked? The exiles whose betrayal of the
covenant has led to exile. What is meant by their "death"?

    Both their political situation ("we waste away") and their
dwindling faith in the ancient concept of election. Thus they
ask, "How can we live?" (i.e., keep our faith and identity as the
People of God). God takes no "pleasure" in the death of the
wicked (i.e., does not see it as necessary that the exiles have
this attitude and forever remain in Babylonia). The Deity desires
repentance, change of priorities, renewal of ancient values, life
as it was intended by this community, and (at the appropriate
time) return to the "promised land."

     Thus, the text is not concerned with the fate of anyone who
has been sentenced to death by the judiciary (or even per se with
individuals who face death), and it does not therefore suggest
what the religious person's response should be in that case.

(Yes, the CONTEXT is what we have to look at MANY times as we
read the Bible. And even the context of the WHOLE Bible.
Obviously from the whole Old Testament, in the context of the
words of Ezekiel, this passage in Ezekiel has nothing to do with
the subject of "capital punishment." It has to do with people
that God would like to see REPENT and not DIE in a captivity -
Keith Hunt)

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

To be continued

Entered on this Website November 2007

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