Back in 2005 there was a minor furore when Labour MP Ashraf Choudhary stated he agreed with the Koran’s teaching that people who engaged in homosexual conduct or who committed adultery should be stoned to death. In the media spiral that followed, some commentators pointed out that it was not just Islam that held this view; Christians are committed to the same conclusion. Consider Deuteronomy 22:22 “If a man is found sleeping with another man’s wife, both the man who slept with her and the woman must die. You must purge the evil from Israel” or Leviticus 20:10 “If a man commits adultery with another man’s wife—with the wife of his neighbour—both the adulterer and the adulteress are to be put to death. Often passages like this motivate a rhetorical question “why don’t Christians today stone to death women who commit adultery? After all, this is what the Bible commands isn’t it?”
I’ll make two points in response to this. First, those who press this line of argument assume that these commands are addressed to contemporary Christians. This is a dubious assumption; the laws occur as part of a covenant or vassal treaty between the tribes of Israel and God. While some of the laws expounded in this treaty reflect rules of justice and equity applicable to all people, Gentiles were not parties to this treaty nor were gentile Christians required to be – something the New Testament spends a lot of time elaborating on.
Second, and this will be my main focus, this line of argument assumes that these apparent laws function like modern statute law; the assumption is that they are literal and binding commands to kill people who had committed certain crimes. It is also assumed that the author of these laws expected them to be carried out. Interestingly, it is precisely this assumption which many scholars of these laws have questioned. Here I will spell out some reasons why they do so.
Comparisons between Leviticus and Deuteronomy and other ancient Near Eastern (“ANE”) law codes suggest they are the same genre. One feature of such codes is seemingly harsh penalties. In old Babylonian law, the hand that assaults was severed; a man who kissed another’s wife was to have his lips cut off; a person who stole bees was to be stung by bees; a man who raped another’s wife would be sentenced to having his own wife or daughter raped; a negligent builder whose house collapsed and killed another’s son would be sentenced to having his own son killed, and so on.
ANE expert Raymond Westbrook notes that these prescribed punishments are both inconsistent with the actual legal practice known to have occurred in these cultures and are often inconsistent with themselves. He notes, “some law codes impose physical punishments and others payments for the same offenses, while some codes have a mixture of the two.” The contradiction is only apparent because, “in highlighting one or the other alternative, the codes are making a statement as to their view of the gravity of the offence.” He argues that the laws “reflect the scribal compilers’ concern for perfect symmetry and delicious irony rather than the pragmatic experience of the law courts.” Westbrook concludes that the method used in ANE legal texts was “to set out principles by the use of often extreme examples.”
A similar point is made by Old Testament scholar John Goldingay who suggests that many of these laws “were not intended to be enforced” but rather were “promulgated to indicate the moral and social priorities of the law giver.” They functioned to express certain ideals of behaviour, to denounce actions like adultery as really bad and intolerable rather than to define precise penalties for these actions.
Westbrook points to the practice of “ransoming” an explanation of how this worked in application. In ANE legal practice a person who committed a serious crime would be considered to have forfeited their life or limb but this did not mean they were executed or mutilated. Instead, they could “ransom” their life or limb by making a monetary payment and/or agreeing to some lesser penalty usually set by the courts. These texts were written and read with the background assumption that penalties would often be ransomed and not literally carried out.
Westbrook is not alone in this view. In a study of ANE laws JJ Finkelstein notes the absurdity and impossibility of putting many of these laws into practice. One Babylonian law, for example, stated that a physician whose patient died in surgery or was blinded by treatment was to have his hand cut off. Finkelstein remarks that “it is inconceivable that any sane person in ancient Mesopotamia would have been willing to enter the surgeon’s profession if such a law were literally enforced.” On the other hand,
“if a system of ransom were assumed where the life of the builder or his son could be redeemed and the hand of the physician could be redeemed by pecuniary ransom, these laws would not only have an admonitory function (for which the more graphic statement of the penalty–execution or mutilation–is more effective), but would also be practical as law.”
He concludes that the laws,
“were not meant to be complied with literally even when they were first drawn up, [but rather they] serve an admonitory function. If one would be bold enough to restate Hammurabi’s 230 as a direct admonition it might run to this effect: “woe to the contractor who undertakes construction and in his greed cuts corners.”
Right back to early rabbinical times, commentators of The Torah have noted it appears to operate with the same assumption. For example, Exodus 21: 29-32 deals with a case where if an ox gored another person to death due to negligence on the part of the owner “the owner also must be put to death” but the very next verse states “if payment is demanded of him, he may ransom his life by paying whatever is demanded.” The text literally demanded a person be put to death but assumed the punishment would be substituted for a fine set by the courts.
This is borne out with other examples. Not only is ransoming implicitly assumed in many of the Old Testament laws about homicide but reading the text this way explains many features of the text which otherwise appear inexplicable.
Gordon Wenham notes that “according to Deut xix19 false witnesses were punished with the punishment the accused would have suffered if substantiated”. However, the penalty for falsely accusing a woman of adultery was not execution but an unspecified punishment alongside a monetary fine. Wenham concludes that a monetary substitution must have been envisaged in this text if it was to be read as coherent and consistent.
This conclusion seems to be strengthened by the fact that only a few chapters later Deuteronomy 24:1-5 deals with a case where a woman was divorced for committing adultery; the woman was clearly not executed as she married another man in verse 2. This makes sense if the capital sanctions for adultery functioned as admonitory devices and in practice a ransom was made as a substitute, but it does not make sense if the woman was required to be executed.
A further example occurs in the book of Kings where a person had committed a capital crime. The sentence was announced as “a life for a life”; however, the immediate context shows what this sentence was: “It will be your life for his life or you must weigh out a talent of silver.” Old Testament scholar Joe Sprinkle notes that “‘life for life,’ in the sense of capital punishment, has an explicit alternative of monetary substitution.”
Perhaps the clearest example is in Numbers 35. At least seven times in close succession the text states, “the murderer shall be put to death”; however, the text proceeds to state ”‘Do not accept a ransom for the life of a murderer, who deserves to die. He must surely be put to death.” Here the text assumes the existence of a practice of substituting capital punishment for a fine exists that there is a risk it might be applied in this instance and so it explicitly forbids it in this circumstance. Sprinkle contends “The availability of ransom seems to have been so prevalent that when biblical law wants to exclude it, as in the case of intentional murder, it must specifically prohibit it”. Old Testament scholar Walter Kaiser draws the same conclusion,
“The key text in this discussion is Num 35:31: “Do not accept a ransom [or substitute] for the life of a murderer, who deserves to die. He must surely be put to death.” There were some sixteen crimes that called for the death penalty in the OT. … Only in the case of premeditated murder did the text say that the officials in Israel were forbidden to take a “ransom” or a “substitute”. This has widely been interpreted to imply that in all the other fifteen cases the judges could commute the crimes deserving of capital punishment by designating a “ransom” or “substitute”. In that case the death penalty served to mark the seriousness of the crime.”
So, it is not at all clear that the Old Testament ever commanded Christians to stone to death women who commit adultery. As useful a rhetorical club for contemporary secularists as this claim might be, it involves transposing modern assumptions about law back onto an ancient literary genre and practice. The genre of the passages, in light of the common ANE legal practices and customs, suggests that most capital sanctions functioned as a kind of rhetorical denunciation which expressed, in vivid form, a moral ideal. Further, in practice, a ransom was paid and the punishment was not literally carried out; it was not statute law demanding the killing of adulterers.
I write a monthly column for Investigate Magazine entitled “Contra Mundum.” This blog post was published in the May 2011 issue and is reproduced here with permission. Contra Mundum is Latin for ‘against the world;’ the phrase is usually attributed to Athanasius who was exiled for defending Christian orthodoxy.
Letters to the editor should be sent to:
Contra Mundum: Why Does God Allow Suffering?
Contra Mundum: “Till Death do us Part” Christ’s Teachings on Abuse, Divorce and Remarriage
Contra Mundum: Is God a 21st Century Western Liberal?
Contra Mundum: In Defence of Santa
Contra Mundum: The Number of the Beast
Contra Mundum: Pluralism and Being Right
Contra Mundum: Abraham and Isaac and the Killing of Innocents
Contra Mundum: Selling Atheism
Contra Mundum: Did God Command Genocide in the Old Testament?
Contra Mundum: Fairies, Leprechauns, Golden Tea Cups & Spaghetti Monsters
Contra Mundum: Secularism and Public Life
Contra Mundum: Richard Dawkins and Open Mindedness
Contra Mundum: Slavery and the Old Testament
Contra Mundum: Secular Smoke Screens and Plato’s Euthyphro
Contra Mundum: What’s Wrong with Imposing your Beliefs onto Others?
Contra Mundum: God, Proof and Faith
Contra Mundum: “Bigoted Fundamentalist” as Orwellian Double-Speak
Contra Mundum: The Flat-Earth Myth
Contra Mundum: Confessions of an Anti-Choice Fanatic
Contra Mundum: The Judgmental Jesus