CAPITAL PUNISHMENT
by Lloyd Bailey
P A R T T H R E E:
Reflections on Ancient Text and Modern Context
Summary, Conclusion, Queries, and Observations
The stated goal of the present volume, to describe the
biblical practice and mentality as they relate to capital
punishment, has now been completed. For the modern Synagogue and
Church, however, such a descriptive task cannot be the end of the
matter. There remains the even more perplexing issue of what that
practice and mentality imply for the faithful in the present. If
the Bible is acknowledged to be canon (Scripture), then one must
ask not only what it said but also what it says (means for the
present). This necessary task will not lead to uniform results
(conclusions), given multiple post-biblical sources of authority
to which one may also appeal (e.g., the Talmud and the Fathers of
the church). Nonetheless, it may he appropriate, after a summary
and statement of conclusion, to raise some queries about what the
Bible might or might not say.
Summary
1. Capital punishment was practiced both in ancient Israel (as
reflected in the Hebrew Bible) and in Judea in the first century
(as reflected in the New Testament).
2. Execution was given theological justification, explicitly in
the Hebrew Bible and implicitly in the New Testament.
3. The Pentateuchal rationale for the penalty was not basically
in terms of societal order, and thus modern utilitarian values
(e.g., does it deter?) have no bearing on the validity of the
biblical attitude toward the topic.
4. The motive for the penalty was not a human desire for
vengeance (retribution), and thus it cannot justly be criticized
by modern theological abolitionists on that basis. (The common
word "vengeance," in the English Bible, may be a mistranslation
of "sovereignty.")
5. Murder is singled out as among the most serious of capital
crimes. Indeed, it is uniquely regarded as an attack upon God.
6. There are no texts in either Testament which overtly depart
from the Bible's consensus on this topic.
7. There are no theological stances in either Testament (be they
forgiveness of enemies, love, non-vengeance, etc.) which may be
taken as an implicit challenge to the consensus.
8. The Bible distinguishes killing in battle, or in self-defense,
or in an accident, or as execution, from murder and negligent
homicide (which alone merit execution).
Conclusion
For those who desire to bring a theological perspective to
the contemporary debate about capital punishment for murder,
there is a large amount of biblical data (both descriptive and
legislative) to which one may turn for information or guidance.
That evidence uniformly authorizes the penalty of death for
murder in Israel, throughout the period of the Bible, but it is
within the context of the certainty of guilt and of equality
before the law. No evidence to the contrary can be found when the
texts are studied carefully, contrary to much writing by modern
theologians and to proclamations by ecclesiastical structures.
Nonetheless, those who would make a direct transfer from
then to now, from what the Bible said to what it says concerning
this topic, are faced with great difficulties. Among the issues
to be pondered are the following. To suggest resolution is beyond
the scope of the present volume. (On the more general problem of
Bible and modern ethics, see the article by Gustafson.)
Queries and Observations
1. Israel's canonical regulations concerning execution were
formulated within and for a theocratic society. That is, norms
for behavior and sanctions in case of violation were understood
to derive from the divine will, and there was no distinction
between church and state. Every Israelite, as a party to the
covenant by birth, was expected to obey the norms and to
understand the appropriateness of the sanctions. Thus, Moses'
guidelines are specifically and exclusively addressed to "the
people of Israel" (e.g., Exod.20:22). Nonetheless, all residents
within the theocratic state (including resident aliens) were
expected to abide by certain of the guidelines (Exod.12:49) and
were to be treated as one would treat a member of the community
(Lev.19:33-34).
Citizens of the United States, by contrast, live in a
secular society. Although they may recite (in the "Pledge of
Allegiance") a belief in "one nation, under God," it is a
perspective with no legal consequence or definition of "God." Nor
is the proclaimed "liberty and justice for all" defined by
reference to the Bible. Indeed, the Constitution does not even
mention God, and it forbids any "establishment of religion."
Consequently, many of the capital offenses of the Bible are
not crimes in our society and some of them are not even frowned
upon by society at large. So far is our self-image of being a
"religious" nation from reality that (according to a national
survey about a decade ago) scarcely a majority of those who
identified themselves as "born-again Christians" could name the
four Gospels!
In view of the pluralism of our society, guaranteed by the
Constitution, should those who would take the Bible seriously
seek to impose its norms by force upon the whole? In particular,
should they seek biblical sanctions (including execution) against
those who never accepted the Bible's covenant relationship in the
first place? Is the authority of Genesis 9, prior to the Sinai
covenant in the storyline and which singles out murder as the
crime par excellence, of a higher order?
2. Our society, in contrast to that of ancient Israel, makes a
distinction between church and state. Only the latter can legally
execute a murderer, and it does so for non-biblical reasons.
Furthermore, the executioner is an agent of the state and not of
the church. Should the religious community nonetheless support
the state in this matter, with the justification that "the
state's motive and goal may be non-biblical, but the end result
is the same"? If so, could such support also be given for
execution in case of theft or arson, which were once capital
crimes (but are not in the Bible)?
3. Should the modern church abandon the predominant justification
for execution (articulated in the Pentateuch), and yet maintain a
secondary one (evident in Israel's monarchical history, but best
articulated by Paul)? That is, should it make an analogy between
the Roman governance of Judea and that of our own time and
proclaim the modern state "instituted by God ... [it] is God's
servant for your good ... to execute His wrath on the wrong-
doer"? (Rom.13:1-4). This is, in fact, the approach which the
church has usually tried to take.
However, was Paul's perspective on this matter intended to
be an absolute one, so that appeal may be justifiably made to it
in the present? In other words, did Paul believe that, at all
times and places, the followers of Jesus should obey the laws of
their state and subject themselves to its judgments as if they
were the judgments of God? Unfortunately, those who would pursue
this line of thought must reckon with the conflict between the
demands of the gospel and those of tyrannical governments around
the world, for example, those of the Nazis. Recently the Reverend
Billy Graham quoted this text from Paul to a group of Christians
in the Soviet Union, and then realizing the consequences of what
he had said, tried desperately to compromise his advice.
(I guess he saw the context of Paul could not and should not be
applied to governments like Hitler had, and many others down
through the ages - just what I've already been saying - Keith
Hunt)
By contrast with Paul, note that the prophet Samuel ardently
warned the people in ancient Israel concerning the dangers of
unbridled kingship at the very inception of that institution (I
Sam.8:10-18). The prophets thundered against monarchical excesses
and threatened the kings with divine sanction (I Kings 21:17-20;
Amos 7:10-17), even occasionally arranging for succession in a
way that bordered on assassination (I Kings 19:15-17; 2 Kings
8:7-15; 9:1-10). The Wisdom of Solomon (a Deuterocanonical, or
Apocryphal, book) warned rulers who "did not rule rightly" that
God's judgment would come upon them "terribly and swiftly"
(6:4-5).
(Now the writer is seeing the WHOLE context of the Bible, and so
proves Paul and Peter's remarks on respecting and honoring
governments MUST have a CONTEXT, that those remarks CANNOT be
applied in certain situations - Keith Hunt)
It is also important to realize that Romans is a pastoral
letter to Christians there, and thus (unlike legislative sections
of the Hebrew Bible) has no intention of being timeless advice.
(Ah, he's getting the overall truth of the matter indeed - Keith
Hunt)
It was written around 55-57 C.E., early during the reign of
Nero, prior to the great persecutions of the church. There was
thus some reason for optimism and trust in the Romans under
divine sovereignty, in a way that later would be much more
difficult (compare the book of Revelation).
(Yes, indeed, basically what I've been saying about those
passages of Paul and Peter - Keith Hunt)
It may be argued that Paul's concern was not so much the
relationship of Christians in Rome to the state in general as it
was what they should do about a specific issue: payment of taxes.
Note that the section 18:1-7 ends on precisely that note, as if
it were the point toward which the author had been building
(Furnish, pp.117-89). This may have been a troublesome issue (cf.
Matt.22:15-22) which had come to his attention and to which he
addressed a specific answer.
It may be doubted, then, that Paul's advice to the Romans is
"an apostolic decree for all mankind and all ages ... making
absolute obedience to political authorities part of the central
content of his message" (in agreement with Kasemann, p.355;
contrast Ryrie, p.214).
(He's got it! Paul's teaching is NOT apostolic decree for all
mankind and all ages. Just cannot be, as human logic would tell
you. You cannot have respect and honor and even obey a Nazi
government as it was under Hitler - Keith Hunt)
4. Israel's willingness to take a human life presupposed
certainty as to guilt. Thus, in case of murder, testimony of two
eyewitnesses was required for conviction. Building upon this
foundation, and aware of the frailties of human nature and the
power of observation, the rabbis of the Tannaitic period (first
to third centuries C.E.) and of the Talmudic period (fourth to
fifth centuries C.E.) examined witnesses so minutely that
conviction was exceedingly difficult. (For the procedure, with
illustrations, see Goldin, pp.89-130; Mendelsohn, pp.115-32.)
Whereas biblical and rabbinic courts would not allow
circumstantial evidence in the trial of one accused of murder,
modern technology has now made it, in some instances, more
reliable than eyewitness testimony. Fidelity to the ancient
demand for certainty, therefore, might require, for the modern
Christian or Jew, some reversal of the kind of evidence that is
adequate (eyewitnesses being notoriously fallible). Nonetheless,
that fidelity would require certitude, and not merely "guilt
beyond a reasonable doubt," since erroneous execution (well
documented in our society - Bedau, pp.434-52; McNamara, p.187) is
beyond remedy.
Should one sanction execution on biblical grounds, without
concern (indeed, demand) for its attendant safeguards?
5. It is a fundamental assumption of biblical jurisprudence that
the socio-economic status of the accused will have no bearing
upon the verdict. The inequities which had been built into the
codes of their neighbors (advantages for the powerful and
affluent) were well known to those who, under divine inspiration,
formulated and edited Israel's sacred literature, and deliberate
steps were apparently taken to eliminate them.
While inequity is not necessarily built into our modern
judicial codes (tax law being an exception?), it nevertheless
has resulted from a number of factors, among them: discretion by
judges and district attorneys; illogic, prejudice, and sentiment
on the part of jurors; and the setting of attorney fees by free
market standards (i.e., the ablest attorneys may charge the
highest fees and thus justice may be de facto for sale to the
highest bidder). Thus, the inequities of our system, statues of
Blind Justice on courthouse facades to the contrary, are
glaringly evident. One's chances of being convicted, sentenced to
die, and actually executed are apparently related to one's sex,
race, and income J. Greenberg; MacNamara, pp.188-89). Indeed, in
1972 the U.S. Supreme Court ruled that under existing laws
execution was so "harsh, freakish, and arbitrary" that it
constituted "cruel and unusual punishment in violation of the
Eighth and Fourteenth Amendments" (Furman v. Georgia, 408 U.S.
238). (The opinion of justice William O. Douglas in this case
contained the following statement: "One searches our chronicles
in vain for the execution of any member of the affluent strata of
this society.") State legislatures then enacted new statutes that
were designed to meet the Court's objections, and one type
(mandatory execution for specified crimes) has subsequently been
ruled unconstitutional under the same amendments (Woodson v.
North Carolina, 428 U.S.280).
As long as glaring inequities in conviction and sentencing
remain in our modern secular society, should conscientious Jews
and Christians appeal to the jurists of ancient Israel in support
of the death penalty? Should such conscientious persons work for
the abolition of the penalty, or for the elimination. of the
inequity?
In sum:
Although there is no biblical basis for objection to the
death penalty per se (and indeed there is a mandate to carry it
out within an autonomous community whose ultimate authority is
the Bible), the divergencies between Israelite society and our
own raise very serious questions with which Church and Synagogue
must struggle. It is not automatically to be assumed that the
divergencies are sufficient to call for the abolition of the
penalty, however. Prior to that conclusion should come the
strenuous DEMAND that there be CERTAINTY as to guilt (serial
murders present a better case, perhaps) and that there be equity
before the law.
..................
NOTE:
Yes, CERTAINTY must be the case for capital punishment. It was so
in ancient Israel - there was to be two or three WITNESSES before
execution could take place.
The religious leaders of Jesus' day, must have gone to great
lengths to "catch" in the "very act" the adulterous woman, to
bring her before Jesus. They were pretty sure they had Him in
this test. They knew what the law of Moses said, and if, as they
were expecting, Jesus would have said; "Yes, stone her to death;"
they would have happily gone about telling the world that Jesus
was a "cold hearted, hard nosed, merciless individual." They
NEVER EXPECTED or even THOUGHT how Jesus could turn the tables on
them, embarrassing them before all, and have them walking away
with their head down and tail between their legs, like the dogs
they were - Keith Hunt.
To be continued
Entered on this Website November 2007
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