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Capital Punishment #4

The Old and the New - The Jewish Sanhedrin

CAPITAL PUNISHMENT

What the Bible Says

by Lloyd Bailey

P A R T   T W O:    The New Testament

CHAPTER V

DISCONTINUITY WITH THE PAST?


     Modern Christians who oppose capital punishment on
scriptural grounds center their appeal on the text of the New
Testament. This they do for one or more of the following reasons.

1. The church has traditionally distinguished the tone of the New
Testament from that of the Hebrew Bible: The former is
characterized by "gospel" whereas the latter has a tendency
toward "law." One should expect, therefore, a greater emphasis
upon God's graciousness in its pages and less upon the kind of
"justice" which capital punishment presupposes.

     Such a distinction is questionable, however. "Law" is not a
designation which either Testament applies to the Hebrew Bible as
a whole. Its use to translate the Hebrew word "torah" and the
Greek word "nomos" is linguistically doubtful (Sanders) and
creates a prejudice in the mind of the reader. It is evident, at
a fair reading, that God's graciousness is as evident in the
older part of Scripture as it is in the newer (Holladay). Indeed,
the ancient creedal affirmation of God's nature, often cited in
the Hebrew Bible, is, "The Lord, the Lord, a God merciful and
gracious, slow to anger, and abounding in steadfast love and
faithfulness, keeping steadfast love for thousands, forgiving
iniquity and transgression and sin"
(so the formative theophany at Mount Sinai, Exod.34:6-7). 
     It is instructive to note not only the "limitations and
safeguards" (outlined above in chapter 1) but also the humaneness
which characterized the judicial system of the People of God
(ancient Israel). Only a few examples need be cited here: 

(a) The punishment for an offense cannot exceed the crime. That
is the intention of the famous "lex talionis" (law of reciprocal
punishment): "an eye for an eye." This has been perverted, in
common understanding, into an act of cruelty. Properly
understood, it intends to limit the excesses which codes in the
ancient Near East allowed. Thus one might translate, "[Only]
fracture for fracture, eye for eye, tooth for tooth" (Lev.24:20;
see Renger). 

(And it is still further misunderstood. As the Jews or Israel as
a whole, NEVER at any point in their history chopped off hands,
plucked out eyes, cut off feet, slashed faces or limbs etc. The
whole section of passage that has become some what famous as "an
eye for an eye" was ALWAYS understood by Israel to mean
"just recompense" in OTHER WAYS OTHER than the LITERAL. Israel
was NEVER a nation of people all over the place with only one
hand, arm, feet, one eyed, etc. individuals. Israel understood
that section of the law of Moses as we would today in Britain or
the USA. We do not cut off hands, pluck out eyes etc. if someone
lost a hand or eye because of something another person did -
Keith Hunt)

(b) Corporal punishment is strictly limited, lest its recipients
be degraded (Deut.25:1-3).

     Anyone who is informed concerning the brutality which
characterized the ancient world (from Babylonia to Rome) and
parts of the modern scene (including colonial America) will
applaud the evaluation found at Deuteronomy 4:8, "And what great
nation is there, that has statues and ordinances so righteous as
all this law (torah) which I set before you this day?" It has
always seemed to me to be the perfect illustration of Matthew
7:3-5 ("first take the log out of your own eye") that the modern
followers of Jesus view the New Testament's threats of eternal
tenure in hell as somehow admirably gracious in comparison with
the Hebrew Bible. My point here is not one of criticism of the
New Testament, but of the capricious, self-serving way in which
some interpreters approach it.

2. Jesus' saying, "You have heard that it was said ... But I say"
(Matt.5:21-22, 27-28, 31-32, 33-34, 38-39, 43-44) has been taken
to indicate the obsolescence of the Pentateuchal guidelines.
     However, this overlooks the fact that, in the introduction
to this section (vv.17-20), Jesus states that he has come not "to
abolish the law (namos) and the prophets ... but to fulfil them."
He then takes several traditional guidelines and gives
them an even more demanding interpretation than was spelled out
in the original. Rather than releasing one from prior obligation,
He is a "hard liner" who makes things even tougher.

     However, the situation is clouded a bit by occasions when
Jesus renounced other Pentateuchal restrictions. According to
Mark 7:19, "He declared all foods clean" (see also Matt.
15:11-18). This would seem to be a rejection of the regulations
in Leviticus 11. Conversely, he advised that other Levitical
guidelines be obeyed (so Matt.8:1-4; Luke 17:11-14, concerning
skin irregularities).

WE WILL STOP HERE FOR A MOMENT - Keith Hunt

     It is AMAZING that "scholars" so-called, can take the time
to "dig into" certain passages of the Scriptures and often find
the correct understanding, then fall flat on their face in the
mud with other passages. I guess that is one of the ways often
used by Satan to deceive the whole world (Revelation 12:9).
     In Mark 7:9 and Matthew 15:11-18; Jesus does NOT ABOLISH the
"food laws" of the law of Moses as contained in Lev.11 and
Deut.14.
     You will notice the CONTEXT of Mark from verse 2. Jesus'
disciples were eating bread or food with "unwashed hands" [verses
2-5]. This was actually a very ritualistic washing, up to the
elbow as the margin in the KJV says. But the fact is Jesus'
disciples were eating food without washing their hands. It would
have been like coming in from working out on the farm, or working
in the garden with no gloves on, then coming in and picking up
food and eating WITHOUT washing the hands. That is the scene here
in Mark 7 and Matthew 15. To the Pharisees, this would have been
spiritually defiling. Jesus tells them that eating a little dirt
that may be on the hands when eating without washing, does NOT
DEFILE anyone in the manner the Pharisees were claiming. Verses
18,19 of Mark 7; a little bit of dirt on the hands goes into the
belly and then into the "waste bowl" [Green's Greek/English
Interlinear] - and gets purged. The dirt on the hands goes not go
into the heart and somehow spiritually defiles a person. It goes
through the filtering process of the belly and bowels.
     The word here for "purge" is number 2511 in Strong's
Concordance, and means; to cleanse, clean, purify. 
     The whole CONTEXT of Mark 7 and Matthew 15 HAS NOTHING TO DO
WITH THE CLEAN OR UNCLEAN FOOD LAWS of Lev.11 and Deut.14.
     Some would LIKE Jesus to be ABOLISHING the food laws of the
Old Testament, for SOME people are ruled over by their BELLY -
see Philippians 3:19. They just want to eat WHATEVER they fancy,
when they fancy it! Keith Hunt

We continue with Bailey's book:


     What, then, was his attitude toward Pentateuchal regulation
of murder - the stringent approach of Matthew 5, or the
rebellious approach of Matthew 15 and Mark 7? (There was no
"rebellious" approach in Mat.15 or Mark 7 - Keith Hunt).

     Curiously, the only quotation which touches on the matter
comes from Matthew 15 (vv.1-9). His opponents have accused his
disciples of violating a religious regulation. He replies that it
is merely a "tradition of the elders" which is being waived,
whereas his opponents are ignoring something far more serious:

"For God commanded,'Honor your father and your mother;' and 'He
who speaks evil of father or mother, let him surely die.' But you
say, 'If .... he need not honor his father.' So, for the sake of
your tradition, you have made void the word of God." He thus
refers to the regulation in Exodus 21:17 and Leviticus 20,
concerning honor due ones parents. Does he thereby attest to a
belief in the continuing validity of the death penalty, at least
for the offense stated? (There is a question of interpretation
here: The central issue is the hypocrisy of his opponents. See
the discussion of John 8:9-11 in chapter 9).

3. The entirety of the Mosaic legislation was historically
conditioned and meant for temporary duration: In the absence of
anything better, it would do until the coming of the Messiah,
when a superior (and ultimate) ethical system would be offered.
Thus, it served as a propaedeutic (preparatory instruction) for
the gospel.

     This rather self-serving argument may have had its basis in
a limited argument by Jesus concerning divorce (Matt.19:8-9). He
was asked if divorcing one's wife was lawful, the rumor
apparently being that he had spoken against divorce (whereas
Dent.24:1-4 sanctioned it). He explained the Mosaic
permissiveness in this way: "For your hardness of heart Moses
allowed you to divorce your wives," that is, it was a temporary
concession to the reality of human (male?) weakness.
     What Jesus did on a limited scale, the early church applied
with gusto: The entire torah had served its purpose and was no
longer of ultimate authority. 
     Unfortunately, such scope overlooks the grounds upon which
Jesus had reached His decision concerning divorce: "From the
beginning, it was not so." He thus appeals to Genesis 1-2, where
God "from the beginning made them male and female" and "the two
shall become one," and concludes, "What therefore God has joined
together, let no man put asunder."

     Jesus' appeal to an earlier torah episode, presumably aimed
at humanity rather than at Israel (as was the case with the
Mosaic materials), was precisely the approach taken by the rabbis
in replying to the propaedeutic argument: torah was already known
to the patriarchs, and Moses merely codified it (so "Sifre"
Deut.; see John 7:22, where RSV's "fathers" refers to the
patriarchs).

     If one tries to set aside the regulations concerning capital
punishment which are concentrated in the Mosaic torah and aimed
specifically at Israel, one runs headlong into the reality of
Genesis 9, given (as the text now stands) much earlier and aimed
at the entire human race.
     A radical variation upon the ancient propaedeutic argument
has been advanced in recent days: The biblical approval of
execution reflects the justifiable penology of its times. Perhaps
the following expression is characteristic of this point of view:

     When the legal precedents of the Torah were formulated,
capital punishment was an absolute necessity. The denial of such
a punishment would doubtless have meant not better justice, but a
return to older tribal patterns of revenge. The question we must
ask is, do the reasons for the use of capital punishment during
the biblical period still exist? And further, does this form of
punishment accomplish what it sets out to do? Does it really act
as a deterrent for future crimes? Is it the only recourse by
which a society can be preserved and individuals protected? ...
These are questions which must be answered, in part, by the
sociologists. (Williams, pp.182-88).

     Unfortunately, this approach reflects a number of serious
misunderstandings, among them the following: 

(a) Capital punishment, in Israel, was not instituted as a means
of controlling "older tribal patterns of revenge." Rather, such
tribal activity was itself socially sanctioned execution. True,
the cities of refuge (Num.35) later seek to regulate it, but this
makes it all the clearer that execution in the case of murder (as
opposed to homicide) has social sanction. 

(b) In relation to reasons and accomplishments, only the issue of
deterrence is mentioned here. However, this is nowhere close to
the center of the Bible's concern, as we have seen (chapter 2).
Rather, the issue with respect to murder is God's fundamental
claim as the Lord of Life. What the sentence seeks to accomplish,
therefore, is to obey God who has been wronged by such an attack.
Does that reason still exist? To my knowledge, God has never
given a canonical indication to the contrary.

(God is the giver of LIFE and for man to take life, other than
what God allows [i.e. old Israel under the Old Covenant allowed
to have a "war army" and the allowed person of execution being
allowed to execute a person for capital crimes] is to DISRESPECT
the Lord of LIFE - Keith Hunt).

     From the Bible's point of view, therefore, it is utterly
astonishing for an appeal to be made to sociological research for
insight on the matter (namely, does the specified punishment
deter?) However, as we will see later, this is precisely the kind
of appeal which some modern Christian groups have made (chapter
12). Thereby theology is reduced to a matter of utilitarian
self-interest.

4. There are several passages which have been taken to bear
directly or indirectly upon Jesus' attitude toward capital
punishment (and thereby to indicate the attitude which his
followers should have in the present). Herein lies the heart of
the matter. For example, there seemingly are warnings against
being judgmental (Matt.7:1), and exhortations are given that one
should be forgiving and loving (Matt.5:38-48). In addition, there
is an episode in which Jesus was asked directly about what was to
be done with a person who had been apprehended in a capital
offense (John 8:3-11). Discussion of texts of this type may be
found below, in chapter 9.


JURISDICTION

     An accurate portrait of jurisdiction for capital crimes
during the New Testament period has long been obscured by a
number of factors. Foremost among them is the fact that the
background materials are written in rabbinic Hebrew and Talmudic
Aramaic and are located in a voluminous literature which
Christian interpreters were usually ill-equipped to handle. Thus,
clarification for English-reading Christians has come only in the
last few decades. Compounding the difficulty is the fact that the
Evangelists do not clearly distinguish political and religious
charges, that is, the concerns of Rome from those of the
Synagogue. Confusion is added by the inconsistency with which
translations of the Bible render the designations of the various
jurisdictions. For example, Jesus (and several of His followers)
are examined by a group called (in Greek) a "sunedrion" (which
has come into English as "sanhedrin"). The King James Version
renders the term, in all twenty-two of its occurrences, as
"council." Clear enough! However, it also renders "sumboulion" in
the same way. Are the two really the same institution? Then,
there is a "gerouria" before which investigation took place,
rendered as "senate." The Revised Standard Version renders both
"sunedrion" and "sumboulion" as "council," and then adds to them
"bouletes" (a member of the "boule"), "member of the council"
(KJV: "counselor").

     When clarification of jurisdiction began to be presented in
English (Zeitlin), it was handicapped by the proposal that there
were two "sanhedrins:" a religious one and a political one. The
former was furthermore of two types: 

a Great Sanhedrin of seventy-one judges and several Small
Sanhedrins of twenty-three judges. The "religious" body was known
(in Hebrew) as a bet-din ("court") prior to 70 C.E. but was also
known as a "sanhedrin" thereafter. Little wonder, then, that
there was confusion in the mind of the non-specialist reader
about who crucified whom and for what.
     The development of these jurisdictions was roughly as
follows. 

     When the Judean exiles returned from Babylonia (following
the edict of Cyrus of Persia in 539 B.C.E; 2 Chron.36:22-23; Ezra
1:1-4), monarchy was abolished and Judah became a theocracy as
part of the Persian Empire. That is, leadership was in the hands
of the Aaronide High Priest, guided by the Pentateuch save in
matters pertaining to the interests of Persia. When he needed
advice in religious matters, he might convene a group of scholars
which tradition has come to call "the Great Synagogue." In
matters of civil (Persian) interest, he might assemble
representatives of the aristocracy to meet in council (gerousia).
The Maccabean Revolt (168-165 B.C.E.) ended foreign domination
(by now, from the Greeks), and it also brought the wide-ranging
power of the High Priest to an end. The High Priest retained
control over the functioning of the temple, but not over
religious policy-making or over the administration of justice.
Those duties were given to two levels of courts (bet-din): a
"great" one for policy-making, and "small" ones for
administration (trials). By contrast, violators of the laws of
the state (headed initially by the Maccabees/ Hasmoneans, then by
the Herodians) were tried by a council called a "sunedrion"
(literally: "seated together," perhaps borrowed from Hellenized
Egyptian governance).


     The "great" bet-din, meeting regularly in Jerusalem, gave
interpretations based upon torah that were binding upon Jews
throughout the world and which served to guide the judges of a
"small" bet-din (one of which existed in every city of size). It
was in the latter courts that capital cases would have been tried
(e.g., murder). Both courts were thus independent of civil
authority and conversely had no jurisdiction over political
prisoners.

     A "sunedrion," by contrast, was an "ad hoc" body, called
into session as needed by the ruler to deal with activities that
undermined the welfare of the state.

     Membership of the "bet-din" was Pharisaic (i.e., experts in
the interpretation of torah), headed by a "nasi" (president) and
an "ab bet-din" (vice-president). Membership of a "sunedrion" was
made up of the "leading citizens": those whose social, financial,
and political interests were compatible with the status quo. This
would include the High Priest (a political appointment in the
late pre-Maccabean period and under the Roman procurators),
members of the priestly (Sadducean) family, representatives of
the bureaucracy of monarchy (Herodians), and perhaps a few
Pharisees. This body was not guided by strict procedure or by
statute, but by what it perceived to be necessary for the common
good. Its decisions were often arbitrary, depending upon the whim
of the ruler.

     When the Romans took direct control of Judea (with the
introduction of the system of procurators in 6 C.E..), the
"sunedrion" became an instrument of the Caesar's justice. The
procurators designated the High Priest to preside and to contain
problems (e.g., revolutionaries) so that Roman power would not
need to be used directly. Thus, in this period the "sanhedrin"
was not an autonomous Jewish institution and it in no wise
represented the sentiments of the masses.

     With the destruction of the Temple (and thus the cessation
of the office of High Priest), as a result of the failure of the
(first) Jewish revolt (70 C.E.), the Romans then vested both
political oversight and continuing religious power in the
Pharisaic "bet-din," which now could be (and was) designated a
"sunedrion." Thus began the identification of the religious court
with the term "sanhedrin," and then the projection of that
identification backward into the period before 70 C.E., leading
to the mistaken idea that it was a religious court which tried
Jesus and many of His followers. It is an error that has
contributed much to the long and tragic abuse of Jews at the
hands of the church. (For further reading on this topic, see
Appendix C.)

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

To be continued with "The Practice" in New Testament times.


NOTE:

The main point to be taken from the above about the "courts" of
Israel or the Jews (in specific fact) was that the court that
condemned Jesus to death was NOT a "religious" court. The Jewish
court that condemned Jesus was made up of various people with
various theological views or even none at all - Keith Hunt


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