A Reply to Hector Avalos’ “Why Flannagan Fails History”

It seems my recent Philosophia Christi review of  John W. Loftus’ The Christian Delusion: Why Faith Fails has hit something of a nerve. Professor Hector Avalos, who wrote “Yahweh is a Moral Monster” in The Christian Delusion, has written a response entitled “Why Dr. Flannagan Fails History, Dr. Hector Avalos Responds”.

Avalos raises several points which I cannot address in a single post. Here I will simply address his claim that I that I relied “on a very selective and uncritical reading of the sources”, misrepresented the views of Raymond Westbrook and utilised “careless scholarship”.

1. My Sources
In my review I stated,

“On p215, Avalos dismisses Copan’s contention that the lex talionis does not call “for bodily mutilation, but rather just (monetary) compensation” as “mere assertion”. However, only a page later, Avalos criticizes Copan’s comments about the manumission of slaves citing the authority of “Raymond Westbrook, one of the foremost biblical legal specialists”. In fact, Westbrook has defended Copan’s position on the lex talionis [“The Character of Ancient Near Eastern Law” in A History of Ancient Near Eastern Law (Boston: Brill Academic Publishers, 2003) 74].”[1]

Here I state the position that Avalos attributes to Paul Copan, the position that that the lex talionis does not call “for bodily mutilation, but rather just (monetary) compensation”, has been defended by Raymond Westbrook in a particular book that I referenced. Avalos contended I have “misrepresented Westbrook”; he provides four arguments for this conclusion. None of them is sound.

A History of Ancient Near Eastern Law by Raymond WestbrookFirst Avalos stated that I offered “no actual quote to support this allegation so that we can verify whether he is even reading Westbrook correctly.” This is false, I did provide a way of verifying my claim. While, due to word count restrictions, I did not give a direct quote, I did provide a reference; I referred the reader to page 74 of Westbrook’s “The Character of Ancient Near Eastern Law” in A History of Ancient Near Eastern Law (Boston: Brill Academic Publishers, 2003). This is clear from the quotation above, which, oddly, Avalos cited in his criticism.

Moreover, even if I did not provide a citation (which I patently did) Avalos’ conclusion that I misrepresented Westbrook would not follow from this. What would follow would be that he would have no way of checking that I had not misrepresented Westbrook; however, the fact one cannot check that something  is not the does not mean it is, in fact, the case. From my living room in New Zealand tonight I cannot check the whether Loftus has  not robbed a bank, so can I conclude he is a bank robber? Of course not.

It is logical howlers like this in Avalos’s work that has lead me to be so critical of it. If Avalos cannot check whether my citation was accurate then he cannot know I misrepresented it, which raises the question: why then has he claimed that I did?

2. Wrong Book
Avalos’ second argument was to ignore my citation and refer to a different book by Westbrook. He states:

“Westbrook has made himself quite clear in Everyday Law in Biblical Israel: An Introduction[Louisville: Westminster/John Knox Press, 2009], pp. 78-79). Therein he discusses how later Rabbinic literature, and specifically Mekhiltah Neziqin 8 to Exodus 21:24, claimed that “An eye for an eye’ [means] money.”

Westbrook comments: ‘This interpretation seems strained to a modern reader. The introduction to the formula in Leviticus 24:19 is unequivocal: “If anyone maims a fellow, as he had done so shall it be done to him.’” [Emphasis Avalos’]

There are several problems here.

First, this does not refute my claim. I said Westbrook defended a certain position in his article “The Character of Ancient Near Eastern Law” in A History of Ancient Near Eastern Law. Pointing out that Raymond Westbrook argued for a different view in a different book, does not show that my claim was false or a misrepresentation.

Second, the quote Avalos provided from the different book by Westbrook does not contradict my claim. By prefacing the quotation with “Westbrook has made himself quite clear”, “Therein he discusses how … and specifically…” and “Westbrook comments”, Avalos creates the impression that Westbrook claimed that the rabbinic position is “strained” and is “unequivocally” contradicted by the biblical text.  However, the careful reader will note that the citation does not actually say this. In the citation, Westbrook states that the modern reader will find the non-literal rabbinic reading strained and he provided a reason why the modern reader might draw this conclusion. That, by itself, does not show that Westbrook considers it strained. It is Avalos’ preface that creates this impression. To know whether Westbrook agrees with the modern reader, one needs to examine the context of the quote. Here is the citation in context:

“Their interpretation seems strained to a modern reader. The introduction to the formula in Leviticus 24:19 is unequivocal: “If anyone maims a fellow, as he had done so shall it be done to him.” Scholars have therefore tended to see the rabbinic opinion as a disguised reform: the revision of a barbaric ancient law for a more enlightened age. It fit in with a developmental view of history going back to the eighteenth century, which saw humanity progressing in stages from unbridled revenge to controlled revenge to court-ordered compensation. This view was reinforced by the discovery of the Laws of Hammurabi, which revealed the existence of an explicit talionic provision hundreds of years earlier than the Torah (196-97):

If a man destroys a man’s eye, they shall destroy his eye.

If he breaks a man’s bone, they shall break his bone.

The discovery of other and even older cuneiform codes, however, which require payment, not talio, has confused the picture. The old developmental view cannot be maintained, although various attempts have been made to modify it (Diamond 1957).”[2] [Emphasis mine]

When one reads the citation Avalos provided in context it is not at all clear Westbrook was claiming this reading is “strained” or that it is “unequivocally” mistaken. Westbrook states that the modern reader and some scholars have considered this reading strained. However, he thinks these people’s position has been “confused”  by more recent discoveries that mean the position it is based on “cannot be maintained”. So, contrary to the impression Avalos creates with his citation, Westbrook was not clearly stating that  the rabbinic reading is strained; he appears to be citing a view for the purpose of criticising it. Avalos should be more careful before wrongly accusing others of ”very selective and uncritical reading of the sources”.

Westbrook continues:

“The rabbinical view may not be entirely unhistorical. The Roman Twelve Tables, roughly contemporary with the biblical codes, provides (I 13 [VIII 2]):

If he destroys a limb, there shall be talio, unless he compounds with him.

If ransom were a possible alternative to talionic revenge, then the approach of the Priestly source in Leviticus 24:19 is understandable. It is the same opposition to payment of ransom that P manifests in the case of homicide (Num. 35:31).

The three references in the Torah to talio all consist of a list of injuries and maimed body parts, with slight variations in detail. Curiously, in none of the contexts in which they occur do they quite seem to fit. In Exodus, the list follows a case involving the miscarriage of a fetus; in Leviticus, that of a blasphemer, in a sequence that begins with the punishment of homicide and compensation for killing a sheep. In Deuteronomy, it supposedly represents the punishment of a false accuser. The overall impression is of an ancient maxim, applied wherever “measure for measure” is to be the standard of justice, whether or not the case involves any of the physical injuries listed[3][Emphasis mine]

Here, in the book that Avalos chose to cite from, Westbrook offers some evidence for the position that I attributed to him. His stated conclusion is that the “overall impression” created by the evidence  is that the lex tallion is a “legal maxim”, a kind of proverb that asserts “measure for measure”. This is precisely what I said he had claimed in the book I referenced; it seems clear that this is Westbrook’s view.

Interestingly, after offering an out of context quote, which he set up (or perhaps carelessly worded) to give the impression that Westbrook considered the rabbinic view “strained“, Avalos admits this is actually not the case. He adds, “Westbrook does argue that instances of replacing lex talionis with monetary fines in later rabbinic literature may have had some historical precedent” – but that is what I said Westbrook position was. Apparently Avalos believes that stating Westbrook does argue for the position I said he did means I misrepresented Westbrook!?!

Avalos’ admission also undermines his use of this quote. If Westbrook had made his claim clear by stating that “this interpretation seems strained” and that it is “unequivocally” denied by the text then Westbrook would not have immediately argued that this interpretation “may have had historical precedent”.

3. Avalos Misrepresents his own Quotation
Avalos’ third response was to state that:

“In any case Westbrook is not arguing that the biblical laws of lex talionis NEVER were taken literally, which is the claim from Copan that I was addressing (with the exception of life for a life).”

This is another false claim. In “Yahweh is a Moral Monster” Avalos summarised Copan as follows:

“None of the examples illustrating “an eye for an eye” calls for bodily mutilation, but rather just (monetary) compensation.”[4]

Note that this is not the claim that lex talionis was never taken literally; it is the contention that the laws of the lex talionis did not call for bodily mutilation. So all Avalos has done here is misrepresent his own quotation of Copan. Nothing in this argument shows that I was engaging in a “very selective and uncritical reading of the sources.”

4. What Westbrook actually said
Interestingly, in the work I actually cited, Westbrook did defend the claim that none of the examples illustrating the “an eye for an eye” principle called for bodily mutilation. On page 74, Westbrook described how talionic legal formulae such as “an eye for an eye or a tooth for a tooth” are not uncommon in such codes; he describes them as “ironic punishments”.[5]

Elsewhere he highlights the suggestion that such laws “reflect the scribal compilers’ concern for perfect symmetry and delicious irony rather than the pragmatic experience of the law courts” and he contends that the method used in legal texts was “to set out principles by the use of often extreme examples”.[6] He goes on to note, “[s]ome law codes impose physical punishments and others payments for the same offenses, while some codes have a mixture of the two. There is not necessarily a contradiction.”[7] He explains that, “in highlighting one or the other alternative, the codes are making a statement as to their view of the gravity of the offence”.[8] He also states:

“The basic approach (in my view, and in this I differ fundamentally from the evolutionary school) was that these wrongs gave rise to a dual right in the victim or his family, namely to take revenge on the culprit, or to make composition with the culprit and accept payment in lieu of revenge”.[9] [Emphasis original]

Note the phrase “in my view”. In the citation I provided, Westbrook clearly is speaking for himself; he is not, as in Avalos’ quote, mentioning the position of someone else whom he proceeds to disagree with.

Westbrook goes on to state, “[t]his right was a legal right, determined and regulated by the court”, he explains that the courts could “fix the level of composition payment” making “revenge a contingent right, which was only revived if the culprit failed to pay”.[10] So my claim that the position Avalos attributed to Copan’s was, in fact, defended by Raymond Westbrook in the text I actually cited was correct; it was also proved correct by the text Avalos cited.

Avalos asked what evidence there is for the view that the lex talionis was a legal maxim and was not necessarily a reference to literal mutilation. Some evidence was actually mentioned on the page Avalos cited from only a few sentences after the quotation he provided. Joe Sprinkle gives a good summary of the evidence for this position in his article “The Interpretation of Exodus 21:22-25 and Abortion” Westminister Theological Review in 1993.[11] Sprinkle offers several different lines of internal textual and external evidence that has been offered for this view; he cites several studies defending it including another study by Westbrook. Unfortunately, the library I have access to does not have these other studies but Sprinkle’s article does provide a summary of them. So Avalos’ claim that Copan’s position is based on “mere assertion” is false. One can disagree with the evidence if they like but to claim it does not exist is false.

5.  Invalid Inference
Avalos’ last argument was to say that when Westbrook defends a non-literal talion he “is citing as precedents some of the Near Eastern laws that Copan treats as inferior.” This argument is irrelevant. Even if Westbrook’s evidence is incompatible with some other claims Copan makes that does not mean my claim that Westbrook defended this view is false; neither does it mean my claim is a misrepresentation of Westbrook’s views nor  does it mean Copan’s view is based on mere assertion. In fact, if, as Avalos, states, Westbrook cites precedents to support the position I said he held, then he did in fact support that position, and he provided evidence for it. Far from establishing Avalos’ conclusion, this argument contradicts it.

Avalos seems to think that pointing out a different Christian writer said something on another subject that contradicts an argument Westbrook makes for a position I said he held shows that I was wrong to say he held it. Unfortunately this is not a valid inference of any sort.

It is worth recapping this. I claimed that in a particular article Raymond Westbrook defended a particular position. Avalos accused me of misrepresenting Westbrook in doing this. He defended this conclusion by:

(i) Claiming falsely that I provided no way of verifying my claim; apparently insinuating that because he could not verify it (which he could have) I misrepresented it.

(ii) Taking a quote from a different book to the one I mentioned.

(iii) Quoting from this book out of context so it sounds like Westbrook rejects the position I claimed he held.

(iv) Following his out of context quote with an admission that Westbrook does think there is evidence for the position I attributed to him.

(v) Misrepresenting his own quotation of Paul Copan.

(vi) Claiming that Westbrook did argue for the position but that this contradicts Copan’s comments on a different subject I was not addressing.

How (i)-(vi) provide any basis for Avalos’ claim that I misrepresented Westbrook is beyond me. I think these fallacious tactics speak for themselves.

[1] John W. Loftus, ed., The Christian Delusion: Why Faith Fails. Reviewed by Matthew Flannagan, Philosphia ChristiVol. 13, no. 1 – Summer 2011, 232.
[2] Everyday Law in Biblical Israel: An Introduction (Louisville: Westminster/John Knox Press, 2009), 78.
[3] Ibid 78-79.
[4] Hector Avalos “Yahweh is a Moral Monster” in John W. Loftus, ed., The Christian Delusion: Why Faith Fails, (Amherst, NY: Prometheus Books, 2010) 215.
[5] Raymond Westbrook, “The Character of Ancient Near Eastern Law,” in A History of Ancient Near Eastern Law, Vol. 1, ed. Raymond Westbrook (Boston: Brill Academic Publishers, 2003), 74.
[6] Ibid 71
[7] Ibid 78.
[8] Ibid.
[9] Ibid.
[10] Ibid.
[11] Joe M. Sprinkle, “The Interpretation of Exodus 21:22-25 Lex Talionis and Abortion,” Westminister Theological Journal 55.2 (1993) 237-243.

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