Doctrine of Capital Punishment, II; Gen. 9:1-17
Something that is crucial for this study is that the Mosaic covenant is viewed as a legal document. It is an integrated whole, you can't separate it, you can't go into it and take out certain provisions and apply them and not others. It is a whole document. Either the whole thing is in effect or it is not in effect. It was a legal constitution for the theocracy of Israel, a form of government where God functions as the executive branch. In the Mosaic law God serves as the King, and there is a bureaucracy which was the priests and the Levites who carried out the various functions of collecting taxes which were called tithes. Tithes were ten per cent taxes, and there were three different kinds of incomes taxes that were levied for the nation to provide for widows and orphans and various other facets such taking care of the livelihood for logistical needs of the priests and Levites. In the Mosaic law there were three different elements in the law code. Part of it was civil and criminal law. The other part of the law code had to do with ritual. They were all part of the same document. In the criminal law there were various crimes that demanded capital punishment—murder, Sabbath violation, cursing of parents, adultery, incest, sodomy, false prophecy, idolatry, incorrigible juvenile rebellion, rape, animals that killed humans, kidnapping, aliens of foreigners who intruded into a sacred place. All of these required the death penalty under the Mosaic law.
Who wrote the Mosaic law? God wrote the Mosaic law. Therefore what we must say is that as a law code it is perfect; it is not imperfect. It defines from God's perspective what freedom is. We don't define what freedom is by going out and looking at cultural institutions. We don't start from the bottom up, we start from divine revelation and then deduct our ideas of freedom from our study of the Word of God. So the Mosaic law is a perfect law code, but that doesn't mean that every nation needs to take the Mosaic law and make it their constitution. There are elements of the Mosaic law that are specifically oriented to Israel because Israel is God's firstborn son in the Old Testament, God's chosen nation. No other nation has the same relationship to God as the Jews had because they are God's chosen people, so you can't take the Mosaic law and then take that over as a constitution or governing document for some other country. But it does provide a model and a basis and shows where there is a legitimacy in crime and punishment. One of the fascinating aspects of the Mosaic law is that there was no incarceration for criminal activity. Criminal incarceration comes out of paganism, it didn't come out of the Bible. Furthermore, there is not the dismemberment penalties such as there is in Islam. These are the barbarities from paganism. There was a system where there was forfeiture of life or of becoming a slave to pay off and give remuneration for a crime, one way or the other.
What we see here is that the death penalty applied to a number of different categories that we certainly in our "enlightened" society we would not use. We are so "enlightened," but this is God's light, and God's light is superior to our light and in His light capital punishment applies to numerous areas that we would not apply it to. Probably part of this, involving cursing of parents, incest, sodomy, adultery, has to do with protecting the nation from losing the divine institutions of marriage and family. Once they are gone the nation is going to fragment and implode—which is what is happening in our nation today.
The Old Testament model was called lex talionis, the law of retaliation. This is a Latin term that was used in Roman law, but the concept of a law of retaliation goes back as far as the laws of Lipit Ishtar around 1850 B. C. and the code of Hammurabi around 1750 B. C. In the law of retaliation the idea was that the penalty should not exceed the crime, and it was designed to protect the guilty from the excessive vengeance of the innocent so that they would not be over penalized for the crime. The other aspect that is important to understand in the law of lex talionis is that it doesn't necessarily mandate the harshest penalty allowed by law. It would leave it up to the judge because there may be ameliorating circumstances, some factors involved that would mean a lessening of the penalty. We see this in one example in the Old Testament when David commits adultery (a capital crime) with Bathsheba, and then conspires with Joab to have her husband Uriah the Hittite put in a position in battle so that he would be killed. So David is guilty of two capital crimes, yet God commutes the sentence. God can do that because He is the ultimate Judge and has the right to do that. But the implication is that there are circumstances where a human judge can do that as well under certain circumstances, but it should be used sparingly. God did commute the death penalty for David, but David had to go through a four-fold penalty of divine discipline: the baby born to Bathsheba died, then he had two of his children commit incest, Absalom then murdered his brother who committed incest with his sister, and then Absalom later led the nation in revolt against his father David. So the whole family implodes and it brought not only heartache to David because of what he saw take place in his own family but it also brought heartache to the nation because of the Absalom revolt. So the Old Testament model for lex talionis established the principle that the penalty must not exceed the crime.
There are three passages in the Old Testament that explain the principle of lex talionis. The first is in Exodus 21:24, 25. The context of this passage deals with the two men who are involved in a fight in the midst of which a woman is hurt so that she gives birth prematurely, yet, as the passage says, no harm follows. What this is saying is that as a result of the fight the child is born prematurely and then doesn't die. The question is whether the woman suffers physical harm afterwards or physical harm to the child after it was born, in which case there would be punishment as well. Then the principle is laid down, "Eye for eye, tooth for tooth, hand for hand, foot for foot, burning for burning, wound for wound, bruise for bruise." This was never taken literally. It was taken literally in Islam so that there is this dismemberment factor in their laws, but this is not how Israel practiced or ever understood this. It is simply a metaphor for saying that remuneration would be made in kind. In the Mosaic law there are various financial figures that are assigned to different crimes. There was to be financial restitution for what was lost. It was never understood in a literal fashion other than the phrase life for life. The way that is interpreted is from clear passages that tell us that if someone committed a specific crime they were to die. That explains that one phrase in a literal way, but the other phrases were understood as simply a metaphor for a payment in kind and to the same degree.
The second passage that emphasizes lex talionis is Leviticus 24:20, "Fracture for fracture, eye for eye, tooth for tooth: as he hath caused a blemish in a man, so shall it be done to him again." This is not talking about the fact that if you cause an accident and it is your fault, and somebody breaks their leg, that they get to come over and break your leg. It means that if you cause a certain damage to them there would be a financial cost assigned to that and there would be financial remuneration. There is the same terminology in Deuteronomy 19:19, "Then shall ye do unto him, as he had thought to have done unto his brother: so shalt thou put the evil away from among you. And those which remain shall hear, and fear, and shall henceforth commit no more any such evil among you. And thine eye shall not pity; but life shall go for life, eye for eye, tooth for tooth, hand for hand, foot for foot." So life for life was the only one that was taken literally and understood to be applied literally.
1) So the law of lex talionis was designed to prevent excessive retaliation or vengeance from the offended party. The penalty must not exceed the crime.
2) Life for life was the only part of the phrase that was ever taken or understood in a literal fashion. The other was just a metaphor to indicate that punishment must be to the same degree as the crime.
3) In the Mosaic law some form of financial remuneration was set for all other injuries and criminal acts. There was no dismemberment or anything like that, it was never understood as such. The main idea was that repayment would be in terms of equal value.
What happens by the time we get into the New Testament period is the Pharisees had distorted the law. During the period of the Babylonian captivity the Jews realized that it was such a painful period in the nation's history because had removed them from the land that when they came back to the land they sort of scratched their heads and said, "What can we do to prevent this kind of divine discipline again?" They had broken God's law and that was the reason for them to be taken out of the land so they had to be sure they never broke God's law. They said the way to do that was to look at the 613 commandments in the Mosaic law, and around each one of those commandments they created a series of commandments to build a fence around that commandment to make sure that if we break one of the other commandments then we certainly won't break the main commandment. So they created these traditions and secondary laws. Then they came along after that and said they needed to make sure they didn't break any of those laws and they built a fence around each one of those laws. What they had was a whole array of traditions and laws that were set up and ultimately designed to prevent people from breaking the Mosaic law. But they took on a legalistic, superficial aspect to them and they lost the spirit of the law and any concept or understanding of grace. So that when it comes to the law of retaliation the Pharisees had distorted that law to the idea that it required a corresponding punishment and that they were to seek the highest form of retaliation. This bred in the Pharisaic interpretation an atmosphere of personal vengeance and retaliation. By the time that Jesus came on the scene the Pharisees were using the Mosaic law as a justification for personal vengeance. As has been pointed out, capital punishment is not a matter of vengeance, it is a matter of justice.
Lex talionis represents the maximum punishment. This allows for grace on the part of the judiciary to lower the penalty. That grace should be used sparingly but it recognizes the validity of extenuating circumstances. That concept had been lost by the Pharisees.
Jesus did not change the standards in the sermon on the mount. There are those who believe that Matthew chapter five is a new ethic, a new standard for the Christian life; that the purpose of Matthew five is to replace the Mosaic with a new standard. However, we have to realize that in Matthew 5:17 Jesus said, "Do not think that I came to abolish the law or the prophets: I did not come to abolish, but to fulfill." He is not changing what the law says. We have to understand that whatever Jesus is saying it is not in contrast to the Mosaic law. If the Mosaic law teaches capital punishment then Jesus is not coming along and providing an ethic in the sermon on the mount that would do away with it. What He is dealing with in Matthew 5 & 6 is an interpretation of the law—His interpretation in contrast to the interpretation of the scribes and Pharisees. This is seen in Matthew 5:20 where Jesus says, "For I say unto you, That except your righteousness shall exceed the righteousness of the scribes and Pharisees, ye shall in no case enter into the kingdom of heaven."
What Jesus is doing in the sermon on the mount is answering the question: What kind of righteousness is required to enter the kingdom? The Pharisees through their system of laws that they had established through the Mishna and later the Talmud—the fences they had set up around the 613 commandments of the Torah—they were establishing their interpretation of righteousness in the Mosaic law. This was what was required to have salvation, what was required to get into the kingdom. But Jesus interprets the Mosaic law from God's divine viewpoint in contrast to what the Pharisees have been saying all along. The Pharisees had perverted the law of Moses into a system of righteousness based on works and thus they had destroyed a system of freedom and substituted a system of slavery to a works oriented righteousness.
We have to remember that Jesus did not come to abolish the law, He came to fulfill the law; so whatever He is saying it is not a contrast to the law. Matthew 5:21, "Ye have heard that it was said by them of old time, Thou shalt not murder; and whosoever shall murder shall be in danger of the judgment." That is what the Pharisees taught. Jesus gives His interpretation and He says that the righteousness isn't just an external righteousness and don't commit murder, it goes deeper than that and has to do with the underlying mental attitude. If you have a mental attitude sin of arrogance and hostility to somebody else, that is violating the law of loving your neighbor as yourself. It is a sin and you are just as guilty of violating the law. Matthew 5:38, "Ye have heard that it hath been said, An eye for an eye, and a tooth for a tooth." That is what the Old Testament taught; now Jesus is going to apply it. Verse 39, "But I say unto you, That ye resist not an evil person: but whosoever shall smite thee on thy right cheek, turn to him the other also." A lot of people quote that out of context. They use it to support pacifism, as an argument against capital punishment, and if they followed the argument out to its logical conclusion there wouldn't be a judicial system. But look carefully at this verse. If someone is going to hit you on your right cheek he is going to have to back-hand you to hit you on your right cheek (most people are right-handed). They are not going to be hitting you with a left hook. The idiom for this indicates that this is a personal insult. When you slap somebody with the back of your hand it is an insult, an affront. So this is not talking about literally slapping somebody. It is an idiom for being offended, being insulted by somebody. What Jesus is saying here is that if someone insults you don't take offence, don't make an issue out of it; deal with them in grace and generosity. Just because they have done something wrong doesn't justify you in prosecuting them to the fullest extent of the law.
Then in verse 43, "Ye have heard that it hath been said, Thou shalt love thy neighbour, and hate thine enemy. But I say unto you, Love your enemies, bless them that curse you, do good to them that hate you, and pray for them which despitefully use you, and persecute you; that ye may be the children of your Father which is in heaven: for he maketh his sun to rise on the evil and on the good, and sendeth rain on the just and on the unjust." This is talking about personal relationships, it is not talking about what takes place at a national level, what takes place in terms of judicial penalties for criminal activity. It is dealing with how you exercise love for your neighbor.
Jesus did not negate capital punishment for the woman taken in adultery. The principle there is that the Pharisees are trying to trap Jesus, they are not going through the principle of correct legal action. They don't have two witnesses, they have set the whole situation up, and the purpose is not to try to execute the law in a fair and judicious manner but they are attempting to trap Jesus and in the process they are going to trap this particular woman and they really have no concern for her whatsoever.
Romans 13:3, 4 establishes the legitimacy of capital punishment as well as the military in its establishment of judicial authority. "For rulers are not a terror to good works, but to the evil. Wilt thou then not be afraid of the power? do that which is good, and thou shalt have praise of the same: for he is the minister of God to thee for good. But if thou do that which is evil, be afraid; for he beareth not the sword in vain [for nothing]: for he is the minister of God, a revenger [word based on dikh, for righteousness; it executes justice, not revenge] to execute wrath upon him that doeth evil." Paul is writing in the context of the worst emperor ever to rule in Rome. Nero is abusing authority left and right. Yet Paul establishes the principle that there is no authority except from God. Even bad authorities are appointed by God. Even if the person in office is not worthy of respect, even if they abuse respect, the office is established by God and is due respect because of the office. That has application in marriage. A husband may be a loser but he is in the office of being in authority over the family. Even if he is a failure the wife has to treat him with respect because of the office he holds in the family.
Exodus 20:13, "Thou shalt not murder." This is the Hebrew word for premeditated murder, not the word for killing in self-defense, not the word for protecting one's country or home, and it is not the word for killing in military service or in a judicial manner. So there is no basis in Scripture to argue against capital punishment. Capital punishment was established by God as a means of controlling criminality and protecting society from people who can no longer control their sin natures. And when they reach a certain level of instability and lack of control they forfeit their right to life.