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Justice and Compassion

in Biblical Law
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Justice and Compassion
in Biblical Law

Richard H. Hiers
2009

The Continuum International Publishing Group Inc


80 Maiden Lane, New York, NY 10038

The Continuum International Publishing Group Ltd


The Tower Building, 11 York Road, London SE1 7NX

www.continuumbooks.com

Copyright © 2009 by Richard H. Hiers

All rights reserved. No part of this book may be reproduced,


stored in a retrieval system, or transmitted, in any form or by
any means, electronic, mechanical, photocopying, recording, or
otherwise, without the written permission of the publishers.

Scripture quotations marked ‘RSV’ are from the Revised


Standard Version of the Bible, copyright © 1946, 1952, and 1971
by the National Council of the Churches of Christ in the USA.

Unless otherwise noted, the Scripture quotations contained


herein are from the New Revised Standard Version Bible,
copyright © 1989 by the Division of Christian Education of the
National Council of Churches of Christ in the U.S.A. Used by
permission. All rights reserved.

Library of Congress Cataloging-in-Publication Data


A catalog record for this book is available from the Library of Congress

ISBN 9780567297891 (hardcover)


ISBN 9780567269096 (paperback)

Typeset by Newgen Imaging Systems Pvt Ltd, Chennai, India


Printed in the United States of America
And what does the Lord require of you
but to do justice,
and to love kindness
and to walk humbly with your God?
Micah 6.8
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Contents

Acknowledgments ix
Abbreviations x

Introduction 1

Part I Civil Law: Contracts, Torts, Inheritance, and Bequests 7


Chapter 1 Biblical Contract Law and Biblical Tort Law 9
A. Biblical Contract Laws 10
B. Biblical Tort Laws and Remedies 14
C. Biblical Contract and Tort Law, and Modern Counterparts 21

Chapter 2 Transfer of Property by Inheritance and Bequest 25


A. Property Subject to Transfer by Inheritance or Bequest 27
B. Inheritance: Descent of Property through Intestate
Succession 28
C. Wills or Bequests and Inter-vivos Gifts 51
D. Conclusions 57

Part II Criminal Law 61


Chapter 3 Biblical Trial Scenes 63
A. Genesis 38:24-26: Tamar’s Evidence 64
B. 2 Samuel 12:1-15: David as Judge and Nathan’s Parable 65
C. 2 Samuel 14:1-11: A Hypothetical Case Prompts
Mitigation and Alternative Sentencing 66
D. 1 Kings 3:16-28: A Maternity Suit 67
E. 1 Kings 21:1-16: A Case of Malicious Prosecution 67
F. Jeremiah 26:7-24: Defendant Testimony and Argument
from Precedent 68
G. Leviticus 24:10-23: A Case of Blasphemy 69
H. Numbers 15:32-36: A Case of Possible Sabbath Violation 70
I. Susanna vv. 28-62: Cross Examination Catches
the Culprits in the Courtroom 70
viii Contents

Chapter 4 Impartial Judgment and Equal Protection of the Laws 73


A. Impartial Judgment 73
B. Equal Protection: Protected Classes 75

Chapter 5 Capital Offenses 80


A. Against Capital Punishment 82
B. Capital Offenses and Rationales for Executing Offenders 86

Chapter 6 Due Process Protections 127


A. Places or Cities of Refuge: Interim Protection for
Offenders Awaiting Trial 129
B. “Diligent Inquiry”: Investigation, Hearings, Evidence,
and Cross Examination 134
C. Witnesses 139
D. The Punishment Phase: Sentencing Guidelines 144

Chapter 7 Criminal Law in the Bible and Contemporary


Application 153
A. Modern Interpretation of Biblical Texts 154
B. The Basic Value of Human Life 157
C. The Critical Importance of Not Executing
Innocent Persons 159

Part III Social Legislation 165


Chapter 8 Biblical Social Welfare Legislation 173
A. Protections against Injustice and Mistreatment 175
B. Laws Calling for Affirmative Actions by Private Persons 185

Chapter 9 Biblical Social Welfare Laws and Modern Social


Welfare Policy 212

Concluding Observations 219

Index of Biblical Quotations and Citations 223


Index of Names 231
Index of Subjects 236
Acknowledgments

I wish to thank the editors of the Journal of Law and Religion, University of
Detroit-Mercy Law Review, and Convergences for permission to draw on
articles previously published in these journals.1 And I am grateful to the
editors and publishers of The New Oxford Annotated Bible with the Apocry-
pha, Revised Standard Version,2 and The New Oxford Annotated Bible,
New Revised Standard Version with the Apocrypha,3 for permission to
quote from these texts. I also wish to express my gratitude to the Univer-
sity of Florida and the University of Oregon for providing me the use of
comfortable and even elegant facilities while I was engaged in the prepa-
ration of this book.
Many former teachers, colleagues and students in the fields of biblical
studies, social ethics, and law have contributed to my understanding of
and reflections on the matters considered here. In particular, Melissa
Aubin, Martin J. Buss, Marie A. Failinger, Duncan Ferguson, Douglas
Sturm, Howard J. Vogel, and Raymond Westbrook. Some of these and
others are named as authors in footnotes. I thank them all, named and
un-named alike, for their guidance and encouragement.
Richard H. Hiers

1
Those represented in the present book include: “Transfer of Property by Inheritance
and Bequest in Biblical Law and Tradition,” 10 Journal of Law and Religion 121 (1993–94)
(hereafter J. of L. Relig.); “Biblical Social Welfare Legislation,” 17 J. of L. and Relig. 49
(2002); and “The Death Penalty and Due Process in Biblical Law,” 81 University of Detroit
Mercy Law Review 781 (2004). “Justice and Compassion in Biblical Law,” 1 Convergence:
Compassion: The Quest for a More Just and Loving World (Eckerd College, 2006), pp. 75–95.
2
Revised Standard Version of the Bible, copyright 1952 [2nd edn., 1971] by the Division
of Christian Education of the National Council of the Churches of Christ in the United
States of America. Citations here are to the edition, Herbert G. May and Bruce M.
Metzger, ed., New York: Oxford University Press (1977), hereafter cited as NOAB-RSV.
Quotations from the Revised Standard Version are indicated by the initials “RSV” follow-
ing the corresponding biblical citations.
3
New Revised Standard Version of the Bible, copyright 1989, Division of Christian
Education of the National Council of the Churches of Christ in the United States of
America. Citations here are to the 3rd edn., Michael D. Coogan, ed., New York: Oxford
University Press (2001), hereafter cited as NOAB-NRSV. Unless otherwise indicated, quo-
tations are from the New Revised Standard Version (NRSV).
Abbreviations

ABD Anchor Bible Dictionary


ANE James B. Pritchard, The Ancient Near East
(Princeton Univ. Press,1969)
ANE Ancient Near East(ern)
ANET James B. Pritchard, ed. Ancient Near Eastern
Texts (Princeton Univ. Press, 1950)
BASOR Bulletin of the American Schools of Oriental
Research
BCE Before Common Era
CC Covenant Code
CE Common Era
CH Code of Hammurabi
D Deuteronomic Code
DH Deuteronomic Historian
H Holiness Code
HBD Harper’s Bible Dictionary (Harper & Row,
1985)
IDB Interpreter’s Dictionary of the Bible (Abingdon,
1962)
JAAR Journal of the American Academy of Religion
JANES Journal of Ancient Near Eastern Studies
JBL Journal of Biblical Literature
J. Crim.L. & Criminology Journal of Criminal Law and Criminology
J. L. & Pol’y Journal of Law and Policy
J. of L. & Relig. Journal of Law and Religion
JNES Journal of Near Eastern Studies
JSCE Journal of the Society of Christian Ethics
JSOT Journal for the Study of the Old Testament
NEB New English Bible with the Apocrypha (Oxford
Univ. Press, 1976)
NOAB-RSV The New Oxford Annotated Bible with the
Apocrypha, Revised Standard Version (Oxford
Univ. Press, 1977, 1997)
Abbreviations xi

NOAB-NRSV The New Oxford Annotated Bible, New Revised


Standard Version with the Apocrypha 3rd edn.
(Oxford Univ. Press, 2001)
N. Il. U. L. Rev. Northern Illinois University Law Review
NRSV New Revised Standard Version
NT New Testament
NWDB The New Westminster Dictionary of the Bible
(Westminster Press, 1976)
P Priestly tradition
PC Priestly Code
RD Ritual Decalogue
RDC Revised Deuteronomic Code
RSV Revised Standard Version
SBL Society of Biblical Literature
U. Mich. L. Quad. Notes University of Michigan Law Quadrangle Notes
VT Vetus Testamentum
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Introduction

The Bible has long been a major force in the development of Western
culture.1 Yet few modern legal or biblical scholars have given more than
passing attention to biblical law. In part, this lack of attention may result
from the fact that much of biblical law deals with animal sacrifices,
a subject commonly regarded as distasteful, misguided, irrelevant, and
outmoded. Such scholars may assume that the rest of biblical law offers
little worthy of their interest, either.
Proponents of Christian ethics and social ethics usually seem to be
unaware of the substance of biblical law, preferring instead—if drawing
on biblical insights at all—to consider only “the prophets” or the “teach-
ings of Jesus,” and possibly other New Testament sources. Modern Jewish
ethicists generally view biblical law through somewhat thick Talmudic
lenses and subsequent emerging tradition. Biblical laws relating to
justice and compassion are rarely noticed even by Christian and Jewish
interpreters and expositors. This book does not argue that Christian
ethics should abandon these other biblical sources, or that Jewish ethics
should ignore or bypass later interpretive authorities. Nevertheless those
“doing” both Christian and Jewish ethics might well benefit from greater
familiarity with the norms or standards of justice and compassion found
in biblical laws relating to the interactions of persons in society. That
biblical laws often express or call for compassion may be particularly
surprising and significant. Likewise, secular humanists may be startled to
discover how often the concerns and values implicit in biblical laws are
congruent with their own convictions and social policy agendas.
This book undertakes to examine biblical laws in order to describe and
consider their substance along with the concerns and values implicit in
them. It is not proposed that biblical laws, without more, can be applied

1
This book does not attempt to trace the influence of the Bible in the development of
Anglo-American law, but does occasionally cite sources relevant to that topic.
2 Justice and Compassion in Biblical Law

directly to contemporary interpersonal and societal issues. It is suggested,


however, that biblical laws may sometimes provide a useful frame of
reference for evaluating contemporary values and practices. Biblical
norms have long influenced Western civilization, and may be especially
important as providing an alternative model to contemporary postmod-
ernism’s moral relativism and anomie.
This study assumes that biblical tradition—including biblical laws—
developed or evolved over many centuries. The relative sequence and
dating of the biblical “sources” or components considered here for the
most part follows the general consensus of current biblical scholarship.
Thus, the so-called Ritual Decalogue (Exod. 34.17-28) is regarded as the
earliest segment of biblical law, dating possibly from the 13th century
BCE. The Covenant Code (Exod. chapters 20–23) is thought to have
been set down or “codified” a century or so later. The Deuteronomic
Code, (here identified as Deuteronomy chapters 5 and 20–25), followed,
perhaps as early as 1000 BCE. The Holiness Code (Leviticus chapters
17– or 18–26) is dated around the middle of the 7th century BCE, and
was supplemented or succeeded a few decades later by what is desig-
nated here the Revised Deuteronomic Code (Deuteronomy chapters
12–19, and 26). Priestly or P tradition generally, including the so-called
Priestly Code, is thought to have been formulated in the 6th or 5th
centuries BCE. The Priestly Code is the term used to describe the large
body of laws found in Exodus, Leviticus, and Numbers that are not attrib-
utable to earlier codes.2
According to biblical tradition, all laws set out in the books of Exodus,
Leviticus, Numbers, and Deuteronomy were given to, and for, the people
of Israel. There, “Israel” is generally understood broadly, as referring not
only to the descendants of Jacob and the subsequent tribal confedera-
tion prior to the establishment of the monarchy, c. 1000 BCE, but also to
both the Northern and Southern Kingdoms (Israel and Judah, respec-
tively) during the divided monarchy, as well as to the Jewish people
during and after the time of the Exile, and down to the close of the
biblical period in the 2nd or 1st century BCE. As presented in the Bible
itself, these laws were understood to have been intended for the instruc-
tion or direction of the people of Israel, not as laws for other peoples
either during the biblical period or in later times. Nevertheless, these

2
For more detailed discussion of biblical literature, history, and religion, see the author’s
book, Trinity Guide to the Bible with the Apocrypha (Trinity Press Int’l, 2001).
Introduction 3

laws may contain significant insights into the human condition, under-
stood in terms of the kinds of relationships among persons that are
mutually beneficial, and that therefore constitute the community of
God’s people intended by its ultimate Lawgiver.
This book examines biblical law from the perspectives of both modern
biblical scholarship and current jurisprudential analysis. Modern legal
concepts and terminology often serve conveniently to describe much of
the character and substance of biblical law.
Part I examines a number of biblical laws that could be characterized
as “civil laws.” For instance, as will be seen in Chapter One, several laws
and narrative traditions concern or represent what we might now under-
stand as legal contracts. Likewise, many of the laws found in Exodus
chapters 21–22, would be now classified as “tort” laws. Moreover, within
these chapters, most of these laws, which are often regarded as a random
assortment of unrelated laws, turn out to have been organized rather
carefully, almost as if under modern tort law rubrics.
Chapter Two identifies the significant distinction between “inheri-
tance” and “bequest,” a distinction familiar in modern law, but not
generally used by biblical commentators. This distinction enables greater
precision in describing the ways in which biblical tradition provided for
transferring property from one person to another, subsequent to, or in
anticipation of the transferor’s death.
Part II considers what in modern times would be classified as “criminal
laws.” Chapter Three describes a series of trial scenes that are part of
biblical tradition—though often not recognized as such. These scenes
illustrate several features of biblical law that are analyzed in subsequent
chapters.
Chapter Four focuses on biblical laws and traditions calling for impar-
tial judgment. The term “equal protection of the laws” is not found in
the Bible; nevertheless it serves as a useful category for describing
a considerable number of biblical legal provisions that are examined in
this same chapter. Several classes of protected persons are also identified
in these texts.
Chapter Five presents a detailed account of biblical laws relating to
capital offenses, that is, laws, which if violated, called for applying the
death penalty. Here we see some interesting parallels to modern criminal
law. Translators have long, and correctly, used the term “manslaughter”
to describe biblical laws in regard to negligent or unintentional homi-
cide. Other laws can be seen as instances of culpable, reckless, or inten-
tional homicide. Most of the capital offenses involve, either explicitly or
4 Justice and Compassion in Biblical Law

implicitly, the perpetrator’s intent to commit the prohibited act. Intent is


a basic element in nearly all types of modern criminal law.
Chapter Six identifies and describes a variety of biblical laws which
clearly served to provide what now would be designated as “due process”
protections for the accused. As will be seen, most of these provisions
evidently were intended to reduce, if not eliminate, the possibility that
innocent persons might be punished. These laws established procedures
calculated to assure that only those who had actually committed capital
crimes were to be executed, and that punishments should not exceed
the seriousness of offenses committed. Chapter Seven then suggests
some comparisons between biblical and modern criminal law.
Part III examines what, in modern law school curricula, would be
identified as “social legislation” or “social welfare legislation.” These terms
may be of relatively recent origin, but rather accurately characterize the
substance of such laws. Chapters Eight and Nine analyze and classify a
wide range of biblical laws that may be aptly so characterized. The con-
cluding chapter highlights certain recurrent themes and conclusions.
In this book, the principal names used to designate the deity are “God”
and “YHWH.” Typically, “God” translates the Hebrew name, Elohim, while
YHWH represents a transliteration of the tetragrammaton, the Hebrew
letters often found in other biblical texts as the divine name. In tradi-
tional Judaism, this name is not to be spoken. English translations
usually render it as “the Lord.”
One final introductory comment. Justice and compassion are some-
times regarded as antithetical or opposites. Justice may be seen as rigid,
imposing certain standards or punishments without mercy or care for
the well-being of those affected; and compassion can be seen as
soft-hearted, if not soft-headed, sentimental, without regard for fairness
or equity. In this book it is suggested that biblical concepts of justice and
compassion often may be seen as different sides of the same coin. That
is, a law concerned with justice, fairness, or equity may also take account
of the special needs or interests of persons affected by the situation or by
application of the law. For instance, as will be seen, biblical tort laws
provide that wrong-doers compensate persons they have injured unin-
tentionally. The compensation may be not only fair or just, but also com-
passionate, in that those injured are to be “made whole,” while those
who have done the injury are then free to go about their affairs without
being punished or stigmatized as bad persons. Arrangements providing
for the transfer of property from deceased husbands to surviving wives,
sons, or daughters protect both the interest of the deceased in caring for
Introduction 5

survivors, and the interests of beneficiaries in continuing support. Crimi-


nal justice laws providing due process for the accused show compassion
for those who, though innocent, might otherwise be punished for
offenses committed by others, while at the same time, tend to increase
the likelihood that the real perpetrators would be brought to justice.
The community thereby would be spared the guilt of having shed
innocent blood. Various social welfare laws clearly served to meet basic
needs of persons in the community who, because they were unable to
provide themselves with life’s necessities, otherwise would experience
serious hardship. These laws also assured that those who could afford to
contribute did so fairly, and without undue hardship to themselves. All
these laws functioned, and likely were intended to promote what was
understood to be the well-being of the community of God’s people.
Readers may well conclude that some of these arrangements were far
from perfect. Yet nearly all represent some balance between justice and
compassion. It will be suggested that occasionally biblical provisions may
even compare favorably with certain contemporary laws and judicial
practices.
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Part I

Civil Law: Contracts, Torts,


Inheritance, and Bequests

Once when Jacob was cooking a stew, Esau came in from the field, and he was
famished. Esau said to Jacob, “Let me eat some of that red stuff, for I am fam-
ished.” . . . Jacob said, “First sell me your birthright.” Esau said, “I am about to
die; of what use is a birthright to me?” Jacob said to him, “Swear to me first.” So
he swore to him, and sold his birthright to Jacob.
Genesis 25:29-34

When men quarrel and one strikes the other with a stone or with his fist and the
man does not die but keeps his bed, then if the man rises again and walks
abroad with his staff, he that struck him shall be clear; only he shall pay for the
loss of his time, and shall have him thoroughly healed.
Exodus 21:18-19 (RSV)

At the time when you end the days of your life, in the hour of death, distribute
your inheritance.
Sirach 33:24

Modern Western jurisprudence distinguishes between criminal and civil


law. The former category relates to actions or activities which are deemed
harmful to the community (or as in states like California) to “the people”
generally. Criminal offenses are usually punishable by fine, imprison-
ment, or—if a capital offense—by execution under the authority of
public officials.1 Major civil law categories include contracts and torts.

1
As to biblical criminal law, see Part II of this book.
8 Justice and Compassion in Biblical Law

Laws regarding transfer of property also may be classed as civil law.


Chapter One examines biblical laws and narratives that represent what
in modern jurisprudence, would be classified as contract laws and then
turns to biblical laws governing what now would be designated as torts.
Chapter Two then turns to biblical texts relating to the transfer of prop-
erty by inheritance, and by making wills or bequests.
Chapter 1

Biblical Contract Law and


Biblical Tort Law

“But tell me, what wages am I to pay you—a drachma a day, and expenses for
yourself as for my son? And besides, I will add to your wages if you both return
safe and sound.” So they agreed to these terms.
Tobit 5:14-15 (RSV)

When a man causes a field or vineyard to be grazed over, or lets his beast loose
and it feeds in another man’s field, he shall make restitution from the best in his
own field and in his own vineyard.
Exodus 22:5 (RSV)

Contract law concerns arrangements between persons or “parties” who


seek to gain something from each other through an exchange of goods,
services, or other valuables.1 A basic feature of modern contract law is
“offer” and “acceptance.” To be binding, there must be a “meeting of the
minds,” that is, the parties must agree to the contract’s terms. When one
party to such an agreement fails to perform what she has agreed to do,
the other party typically seeks monetary damages or some other remedy.
Tort offenses, on the other hand, are those that harm individual persons
or their property, whether intentionally, recklessly, or as the result of
simple negligence.2 Such harm then may be remedied by restitution or
payment of damages to the persons injured or to those whose property
has been damaged.

1
See generally Amy Hilsman Kastely et al., Contracting Law, 2nd edn. (Carolina Academic
Press, 2000); and the classic “hornbook,” Arthur Linton Corbin, Corbin on Contracts, one
vol. edn. (West Pub. Co., 1952), and multi-volume revised editions.
2
See generally, W. Page Keeton, gen. ed., Prosser and Keeton on the Law of Torts (West Pub.
Co., 1984).
10 Justice and Compassion in Biblical Law

A. Biblical Contract Laws

Only a few biblical laws relate directly to contracts. All of these laws
evidently were intended to protect the interests of persons likely to be
affected adversely by contractual agreements. In some instances, affected
persons would include parties to the agreements who were in relatively
weak bargaining positions.3 In others, the parties affected would be third
persons whose interests the contracting parties might not otherwise care
about.
The first 11 verses of Exodus chapter 21 relate to purchase or sales
contracts. Exodus 21:1-6 sets out “the ordinances” that were to govern
when someone bought a Hebrew slave. These specify that such slaves
were to be freed after 6 years of service, and define the circumstances
under which a slave’s wife and children might, themselves, either be or
become slaves, or else be freed.4 Chapter 21:7-11 sets out those condi-
tions or requirements that were to go into effect when a man sold his
daughter as a slave. The purchaser must treat her well, and if he does not
do so, she is to go free.5
One law that clearly has to do with debtor–creditor relations of an
implicitly contractual nature emphasizes God’s compassion as its basis.
This is Exodus 22:25-27, which concludes:

If ever you take your neighbor’s garment in pledge, you shall restore it
to him before the sun goes down; for that is his only covering, it is his
mantle for his body; in what else shall he sleep? And if he cries to me,
I will hear, for I am compassionate. (RSV)

The version of this law set out at Deuteronomy 24:10-13, adds a further
restriction on a lender’s conduct: “[Y]ou shall not go into his house to
fetch his pledge” (RSV). Similarly, creditors were not to take in pledge
(or as collateral) equipment that served as the basis for a debtor’s
livelihood:

3
Modern law also generally disapproves as “unconscionable” and may not enforce “adhe-
sion contracts,” that is, contracts drafted by relatively powerful parties in circumstances
that leave those in relatively weak bargaining position little choice but to “agree”
to adverse terms. See Kastely et al., pp. 632–33; and Arthur Linton Corbin, Corbin on
Contracts, multi-volume edition, revised edn., vol. 1, edited by Joseph M. Perillo (West
Pub. Co., 1993), pp. 13–15.
4
See Chapter Eight, Section B.3.b.i.
5
See Chapter Eight, Section B.3.b.ii.
Biblical Contract Law and Biblical Tort Law 11

No one shall take a mill or an upper millstone in pledge, for that would
be taking a life in pledge. (Deut. 24:6)

Both justice and compassion are implicit in Leviticus 19:13 and Deuter-
onomy 24:14-15, which require employers to pay hired servants or work-
ers the same day they earn it.6 This requirement may be illustrated in
Jesus’ Parable of the Laborers in the Vineyard (Mt. 20:1-16). In the para-
ble, the owner of the field has his foreman pay all laborers their wages on
the evening of the same day they worked (Mt. 20:8).
Compassion for needy borrowers clearly comes to expression in the
law barring lenders from exacting interest from “any of my people with
you who is poor” (Exod. 22:25 RSV). Another law grounded on compas-
sion bars lending money at interest, or making a profit from selling
food to a “brother [who] becomes poor, and cannot maintain himself ”
(Lev. 25:35-37 RSV).
Several biblical narratives describe contractual agreements. In each
case, there is some “consideration,” that is, something of value that one
party proposes to exchange for the other’s.7 Sometimes complications
arise because one party or the other engages in deceptive practices or
fraud. Also one party or the other may fail to carry out contractual terms.
Or the parties may have failed to agree as to specific terms. Some exam-
ples of such situations are considered in the following paragraphs.8
Jacob figures prominently in three of these accounts. The first is the
story in Genesis 25:29-34, where Esau, faint with hunger, asks Jacob for
some of the stew (“pottage”) he had been boiling. Not one to miss a
good business opportunity, Jacob offers to let Esau have some, but only
if Esau first sells him his birthright.9 Here the “consideration” on one
side is the stew or porridge; on the other, it is the birthright. Esau agrees
with an oral acceptance (“So he swore to him, and sold his birthright to
Jacob.”). The narrator, whose sympathies obviously are with Jacob,10 was
not troubled by the fact that Jacob obtained Esau’s agreement under

6
See generally, Paul Rasor, “Biblical Roots of Modern Consumer Credit Law,” 10 J. of L. &
Relig. 157 (1993–94); and Louis E. Newman, “Covenants and Contract: A Framework for
the Analysis of Jewish Ethics,” 9 J. of L. & Relig. 89 (1991).
7
See Kastely et al., Contract Law, pp. 263–370; and Corbin, Corbin on Contracts,
pp. 160–336.
8
See also 1 Kgs 5:1-11; 2 Chron. 2:3-16; and 1 Kgs 9:10-14, describing contractual agree-
ments between Solomon and Hiram (or Huram), King of Tyre.
9
As to the meaning of “birthright” see Chapter Two, Section B.4.
10
See the biblical narrator’s editorial comment: “Thus Esau despised his birthright” (Gen.
25:34).
12 Justice and Compassion in Biblical Law

conditions that might now be considered to have involved duress.11 On


two occasions, Jacob negotiated employment contracts with his kinsman,
Laban (Gen. 29:15-20; 30:25-34). Each time, however, Laban engaged in
deceptive or fraudulent practices, to his own advantage (Gen. 29:21-27;
30:25-36). Apparently in those times, there was no provision for voiding
contracts on the basis of fraud or misrepresentation.12
Another famous biblical scene also involved an oral contract. This is the
story in Numbers chapters 22–24 about Balak, king of Moab, hiring Balaam,
a professional prophet or execrator, to come and curse the menacing
horde of Israelites who seemed about to encroach on the land of Moab.13
Exact terms are not specified, but it is clear that Balak offered to pay Balaam
a substantial fee or “honorarium” if he would undertake this task: “Let
nothing hinder you from coming to me; for I will surely do you great honor,
. . . and come curse this people for me” (Num. 22:17 RSV). After Balaam
repeatedly blesses Israel instead of cursing them, the exasperated Balak
charges Balaam, in effect, with breach of contract and refuses to pay the
promised “honor” or, “honorarium” (Num. 24:10-11). Balaam replies that
he never had agreed to curse Israel in the first place, so there could be no
contract to breach.14 There had been no “meeting of the minds.”
Two contractual arrangements are mentioned in the Apocryphal Book
of Tobit. The first of these has to do with Tobit’s undertaking to hire a
man to accompany his son Tobias on a journey (Tob. 5:3-15). In this
instance, the parties agree to fairly specific terms. Here Tobit addresses a
man named Azarias:15

“But tell me, what wages am I to pay you—a drachma a day, and
expenses for yourself as for my son? And besides, I will add to your
wages if you both return safe and sound.” So they agreed to these
terms. (Tob. 5:14-15 RSV)

Later in the story, when Tobias spends the night with Raguel, another
relative, it is arranged that Tobias will marry Raguel’s daughter, Sarah.

11
See Kastely et al. Contract Law, p. 552; Corbin, Corbin on Contracts, p. 320.
12
See Kastely et al., Contract Law, pp. 571–608; Corbin, Corbin on Contracts, pp. 10–11, 320.
13
For fuller discussion of this remarkable story, see the author’s Trinity Guide to the Bible,
pp. 50–51, and 293.
14
See Num. 24:12-13: “And Balaam said to Balak, ‘Did I not tell your messengers whom
you sent to me, “If Balak should give me his house full of silver and gold, I would not be
able to go beyond the word of YHWH, to do either good or bad of my own will; what
YHWH says, that is what I will say”?’”
15
As the story is told, Azarias is actually the angel, Raphael, in disguise.
Biblical Contract Law and Biblical Tort Law 13

This story has many points of interest, but the one noted here is that as
part of the wedding formalities, Raguel proceeds to write a contract, to
which both he and his wife, Edna, set their seals (Tob. 7:12-14 RSV).
Whether this contract related directly to the wedding, or to possible
dowry, or perhaps to arrangements for inheritance16 is not indicated.
It is noteworthy that both Raguel and Edna “set their seals” to the con-
tract, indicating that not only the father, but also the mother of the bride
had legal status to enter into such contractual agreements.17 Seals are
still sometimes, though rarely, applied to contracts in modern times.18
At least one contract is described in the New Testament. This is in
Jesus’ “Parable of the Laborers in the Vineyard” (Mt. 20:1-16). The para-
ble begins:

For the kingdom of heaven is like a landowner who went out early in
the morning to hire laborers for his vineyard. After agreeing with the
laborers for a denarius, he sent them into his vineyard. (Mt. 20:1-2)

As the day goes on, the owner hires more workers, but at the end of the
day, pays each—including those who had worked only the last hour—a
full denarius. The workers who had “borne the burden of the day and
the scorching heat” complain that the others received the same pay. The
owner then points out that they had agreed to these terms, and so have
no grounds to complain: “Friends, I am doing you no wrong; did you not
agree with me for a denarius?” (Mt. 20:13).
From these several accounts it seems likely that contractual arrange-
ments were commonplace in the biblical period, even though biblical
commentators rarely refer to these arrangements as instances of
contract law.
Some of the offenses described in biblical tradition could be character-
ized in modern legal terms either as breach of contract violations or as
“torts.” Modern legal scholars, noting occasional overlap between con-
tract and tort law, sometimes refer, humorously, to “con-torts.”19 Exodus

16
See Tobit 14:12-13.
17
See also 1 Samuel 25:14-35, describing Abigail’s negotiating an agreement with David to
spare the male members of her household. Here there was no formal contract, but there
was a “meeting of the minds,” and at the end, David granted Abigail’s “petition” (1 Sam.
25:35).
18
See Corbin, Corbin on Contracts, pp. 337–44.
19
For careful discussion of the complex relation between these two categories of modern
civil law, see W. Page Keeton, ed., Prosser and Keeton on the Law of Torts (West Pub. Co.,
1984), pp. 655–76.
14 Justice and Compassion in Biblical Law

22:7-11 includes various instances of “breach of trust” or violation of a


bailee’s responsibility to care adequately for property entrusted to him
by another. Some of these laws also refer to activities that in modern law
would be called embezzlement or conversion. Although these laws
involve elements of contract, for instance, implicit prior agreements of
one kind and another, in this chapter, these laws are considered under
the rubric of tort law.

B. Biblical Tort Laws and Remedies

Biblical texts do not use the term “tort,” nor do most biblical commenta-
tors.20 Nevertheless, the term may aptly describe the substance of several
biblical laws. The term “tort” probably derives from the French word,
tort, meaning “wrong.” In law, the term refers to injury to persons or
damage to property. Remedies usually are in the form of restitution of
that which has been taken, or compensation paid to the injured party.21
In Anglo American statutory and common law, torts are classified as
either negligent or intentional. Intentional torts (and those resulting from
reckless endangerment to others) are considered more serious than
harms resulting from mere negligence.22 Intentional tort-feasors (and
those found to have committed acts of reckless endangerment) some-
times are subjected to substantial damages, typically in the form of multi-
ple or “punitive” or “exemplary” damages, payable to the victim or, if the
victim is deceased, to the victim’s estate.23 The implicit rationale for puni-
tive damages is to discourage those who might otherwise engage in simi-
lar conduct in the future from doing so, lest others in the community be
harmed. Punitive damages are sometimes considered “quasi-criminal”
in that they combine both compensation for the victim and punishment
for the offending tort-feasor. Modern tort law also distinguishes between
tortuous conduct harmful to persons, and conduct that damages
property.

20
Bible dictionaries typically do not list or describe “tort” laws. Commentators sometimes
refer to civil laws. See Dale Patrick, Old Testament Law (John Knox Press, 1985), pp. 76
and 79, identifying instances of “civil tort”; and Christopher J. H. Wright, Old Testament
Ethics for the People of God (InterVarsity Press, 2004), pp. 283–94.
21
See Black’s Law Dictionary, 8th edn. (St. Paul: West Pub. Co., 2004), p. 1526, defining
“tort” as “A civil wrong, other than breach of contract, for which a remedy may be
obtained, usually in the form of damages.” For fuller discussion, see Keeton, ed., Prosser
and Keeton, pp. 1–7.
22
See Keeton, ed., Prosser and Keeton, pp. 33–107.
23
See id., pp. 7–15.
Biblical Contract Law and Biblical Tort Law 15

One of the earliest biblical law codes was the Covenant Code, found in
Exodus 20:1–23:33. This collection of laws contains an extended listing
of criminal acts and penalties along with civil offenses and remedies
(Exod. 21:12–22:27). Commentators often describe these laws as a hodge-
podge, or at best as an only loosely organized assortment of miscella-
neous provisions.24 However, when modern jurisprudential concepts are
applied, those laws found in Exodus 21:12 through 22:15 turn out to be
clearly organized along lines that closely correspond to such concepts.
The laws set out in Exodus 21:12-32 all relate to injuries to persons,
while those found in Exodus 21:33–22:15 concern injuries or damages to
property. These laws can be seen to have been organized as follows:

1. Criminal law: offenses against persons. Exodus 21:12-17.


2. Civil law: tort offenses. Exodus 21:18–22:15.
a. Injuries to persons. Exodus 21:18-32.
i. Intentional infliction of injuries. Exodus 21:18-21, 26-27.
ii. Negligent and reckless infliction of harm. Exodus 21:22,
28-32.
b. Injuries to animals belonging to others through negligent or
reckless conduct. Exodus 21:33-36.
i. Leaving an open pit. Exodus 21:33-34.
ii. One man’s ox fatally injures another’s. Exodus 21:35-36.
c. Intentional and negligent conduct affecting property. Exodus
22:1-15.
i. Theft of cattle (farm animals). Exodus 22:1, 4.25
ii. Allowing animals to graze over neighbors’ fields or crops.
Exodus 22:5.
iii. Allowing fire to spread and damage neighbors’ crops. Exodus
22:6.
iv. Failing to care for property in trust or bailment. Exodus
22:7-13.
v. Property damaged or lost while borrowed. Exodus 22:14-15.

24
See, for example, The New Interpreters’ Bible, vol. I (Nashville: Abingdon Press, 1994),
p. 860, commenting on the Covenant Code (Exod. 20:24–23:19): “It is a miscellaneous
collection. . . . It is not possible to identify a coherent structure, pattern, or order for the
material.” Nevertheless, the article goes on to identify several categories of laws, though
without mentioning either civil law or tort law. The New Interpreters’ Bible, pp. 863–66.
25
Exodus 22:2-3 concerns liability, if any, for killing someone who “broke in” to steal,
possibly to steal cattle. These verses do not quite fit the context, and may have been
added after the tort laws in Exodus 21:18–22:15 had already been in place. See below,
note 40.
16 Justice and Compassion in Biblical Law

It is clear that these laws were not put down in random order, but on the
basis of organizing principles that, to some extent, correspond to
modern legal categories.26
The first set, Exodus 21:12-32, begins with a series of criminal laws, all
but one27 involving capital offenses.28 These include intentional homicide
(Exod. 21:12, 14), fatally striking one’s father or mother (Exod. 21:15);
kidnapping (Exod. 21:16); and cursing either parent (Exod. 21:17). The
following verses then set out a number of tort laws, interspersed with
occasional, somewhat related, criminal provisions.
Exodus 21:18-19 provides that if two men fight and one seriously
injures the other who, afterwards survives, the man who caused the injury
“shall pay for the loss of [the victim’s] time, and shall have him thor-
oughly healed” (RSV).29 These provisions evidently required payment
for earnings lost while the injured man was unable to work, and for his
medical expenses. The element of compassion is implicit in the fact
that there is no mention of considerations such as which man started the
fight, the justice of their respective arguments, or whether one acted in
self-defense. This law also could have served to deter brawling, since
those so involved would be on notice that they could be liable for the
damages indicated if they caused serious injury to others.
The law found in Exodus 21:20-21 falls more into the category of crimi-
nal law, since it calls for punishing the offender rather than for his paying
damages or making restitution. This law provides that a man is to be pun-
ished if he strikes his slave (whether male or female) and the slave dies
soon afterwards. However, if the slave “survives a day or two” before dying,

26
See NOAB-RSV, Old Testament sect., pp. 94 and 95, where the annotator correctly
observes that the laws in Exod. 21:12-32 relate to “protecting human beings,” while those
in Exod. 21:33–22:17 deal with property. See also P. Kyle McCarter, “Exodus,” in James
L. Mays, Gen. ed., Harper’s Bible Commentary (San Francisco: Harper & Row, 1988), p.
149, regarding the organizational pattern in Exodus 21:1–22:17: “The laws are grouped
roughly as follows: (1) laws pertaining to slavery, requiring a seventh-year manumission
of Hebrew slaves and restricting the sale of daughters (21:1-11); (2) laws of capital crimes
(21:12-17), excepting unintentional homicide but including murder (21:12-14), kidnap-
ping (21:16), and crimes against parents (21:15, 17); (3) laws pertaining to personal
injuries, including injuries to slaves, inflicted by other human beings (21:18-27) and by
livestock (21:28-32); (4) laws pertaining to damages to property (21:33–22:16), includ-
ing livestock (21:33-36, 22:3) and real estate (22:5-6); (5) laws involving contracts
(22:7-15); and (6) laws regarding the payment of the bride-price (22:16-17).
27
The exception, Exodus 21:13, might well be categorized in modern law as relating to
second degree murder. See Chapter Five, Section B.1.b.i.
28
See Chapter Five, Section B.1.b.ii & ii.
29
“Time and cure” are common remedies in modern admiralty or maritime law for
injuries to seamen.
Biblical Contract Law and Biblical Tort Law 17

the man who struck him is not to be punished, the rationale being that
the slave is “his money” (Exod. 21:21 RSV). This law probably was included
here because it, like others in Exodus 21:18-32, concerns injuries to per-
sons. Here there is no provision for compensating the victim’s relatives.
Exodus 21:22-25 describes what is to be done in a then perhaps not-
too-unusual circumstance. If rowdy men are brawling, and while doing
so, injure a pregnant married woman thereby causing a miscarriage but
without otherwise injuring the woman, “the man” (RSV) who caused the
injury was to be fined an amount set by the woman’s husband, as then
determined by “the judges.” Apparently these damages would be paid
for the loss of the fetus or child.30 This provision can be considered an
example of tort law. But if the woman is injured or dies as a result of such
injury, the criminal law, known as the “lex talionis” is to be applied, and
the perpetrator punished accordingly.31
Exodus 21:26-27 governs situations where a man strikes his male or
female slave, causing the loss of either an eye or a tooth. In that event,
he must let the slave go free as compensation for the injury. Such com-
pensation is in the nature of a tort remedy. Even though slaves were
regarded as property (Exod. 21:20-21), slave owners or masters were
not entirely free to abuse them.32
Laws applicable to another special situation are set out in Exodus
21:28-32. These say what is to be done when an ox fatally gores a person
other than its owner. In cases where the owner of the ox was culpably
negligent, guilty, in effect, of reckless endangerment, he was subject to
the death penalty.33 But there were two exceptions. Both refer to what
now would be called tort actions. One exception was that the victim’s
family could choose to accept compensation (“ransom”) instead (Exod.
21:30). Such ransom might be very substantial, possibly including
punitive damages, or damages for pain and suffering of the deceased.
In modern law, this provision would be seen as allowing for a civil

30
This is one of two biblical texts that relate, albeit indirectly, to abortion. The only other
text, which also relates only indirectly, is Ecclesiastes 6:3-5, commenting favorably on the
fate of the “stillborn child.”
31
Exodus 21:23-25 is sometimes cited by proponents of capital punishment in support of
more general application of the death penalty, as if its context, set out explicitly in Exod.
21:21-23, made no difference. The other two instances of the lex talionis found in biblical
law likewise were to apply only in delimited contexts: Leviticus 24:19-30 (mayhem, or
permanently disfiguring another), and Deuteronomy 19:16-21 (intentional, false, mali-
cious testimony). See Chapter Five, Section B.1.b.ii.(a), and Chapter Six, Section D.2.
32
See Exodus 21:1-11, discussed above and in Chapter Eight, Section B.3.
33
See Chapter Five, Section B.1.b.ii.(b).
18 Justice and Compassion in Biblical Law

“wrongful death action” in tort.34 The other exception was that if the
victim was a slave, the offending ox’s owner was to pay the slave’s owner
30 silver shekels, evidently as compensatory damages for loss of his
property (Exod. 21:32).
Exodus 21:33–22:15 lists a series of tort offenses affecting property,
along with the remedial damages appropriate in each case.35 Offenses
that involve simple negligence are enumerated in Exodus 21:33-35.
These laws call only for restitution or compensation in kind equivalent
to the value of what was lost or destroyed. Such compensation is required
if a farm animal is killed by falling into someone’s open pit (Exod. 21:
33-34). In this case, the pit owner keeps the dead animal. In effect, this is
a sale: the pit owner buys the dead animal for the value it had when alive.
In this situation, it would be foreseeable that an animal that fell into such
a pit would be killed. Foreseeable risk of harm is a basic element in mod-
ern tort law. Quid pro quo or equal compensation is also required if a
man’s cattle grazed over another’s field or vineyard;36 if a man sets a fire
that accidentally spreads to a neighbor’s grain field;37 and if a farm
animal is stolen or injured or dies while in the borrower’s (or bailee’s)
possession (Exod. 22:5-6, 12, 14).
A somewhat different situation arises when one man’s ox fatally injures
another’s ox (Exod. 21:35). Here the live ox is sold and the two men
divide the proceeds of the sale, and also divide the dead animal. Argu-
ably, this is less than full compensation for the man whose ox was killed.
One could speculate that this arrangement may be in the nature of a “no
fault” settlement, given the difficulty of determining which or whose ox
“started it.” If, however, the owner of the goring ox knew of its goring
propensities, and failed to fence it in, he was to pay “ox for ox,” but could
keep the dead animal (Exod. 21:36). This settlement also is in the nature
of a sale: the tort-feasor in effect buys the dead animal for the price of a
live one. As in the case of the pit owner, there is some element of culpable
negligence, because here also, it should have been foreseeable that harm
would result, for an ox “that had been accustomed to gore” was likely to
do so again, given opportunity.38

34
See Keeton, ed., Prosser and Keeton, pp. 940–61.
35
Excepting 22:2-3. which relates to another matter. See below, note 40.
36
See Keeton, ed., Prosser and Keeton, pp. 539–41, discussing liability and “strict liability” for
damage done by trespassing livestock.
37
See id., pp. 543–45.
38
So also in modern tort law. See id., pp. 542–43.
Biblical Contract Law and Biblical Tort Law 19

As in some types of modern tort law, where the offense (or tort) is clearly
intentional, biblical tort law required the tort-feasor to pay multiple
damages. Such offenses include theft, breach of trust, and embezzlement
or conversion.39 Instances of intentional torts calling for multiple dam-
ages included the following: if someone steals another’s ox or sheep
(Exod. 22:1, 4),40 or if a thief allegedly steals property in a neighbor’s
possession (Exod. 22:7), or in cases involving “breach of trust” or property
found in possession of another (Exod. 22:9). The idea of multiple dam-
ages for intentional wrong-doing is illustrated in the prophet Nathan’s
encounter with King David as told in 2 Samuel 12:1-6. Nathan tells David
a story41 about a rich man who had taken a poor man’s pet lamb and then
killed and served it up for dinner. David, as King, was also Chief Judge.
Outraged, David declares that the rich man “shall restore the lamb four-
fold because he did this thing and showed no pity” (2 Sam. 12:6 RSV).42
Fourfold restitution also is exemplified in the New Testament where it is
said that a man named Zacchaeus voluntarily declared: “If I have defrauded
anyone of anything, I restore it fourfold” (Lk. 19:8 RSV).
Exodus 22:8-15 relates to possible or suspected embezzlement or
“conversion” of property held in trust or “bailment” for another. If goods
or money are stolen while entrusted to a neighbor and the thief is not
found, the neighbor or bailee shall “come near before God” (RSV) in
order to determine whether he has taken it (Exod. 22:8). Similarly, “If a
man delivers to his neighbor an ass or an ox or a sheep or any beast to
keep, and it . . . is driven away, without anyone seeing it . . .” the accused
may be absolved by taking “an oath by YHWH” in order to determine
“whether he has not put his hand to his neighbor’s property” (RSV).
A man entrusted with such farm animals must take a similar oath in
order to establish his innocence if the animal died, or was injured while
in his possession. The animal’s owner was to “accept the oath,” thereby

39
On the development of modern Western tort law regarding “conversion,” see id.,
pp. 88–107.
40
Exodus 22:2-3 says what is to be done if someone strikes, and then kills a thief “found
breaking in.” These verses indicate whether the person who so kills a thief is liable for
homicide, a criminal offense. This law evidently was inserted between verses 1 and 4, which
relate to theft, because they also refer to theft. See Chapter Five, Section B.1.b.iii. “Break-
ing in” here may refer entering either a house or a barn, or even possibly a farmyard, or
pasture for the purpose of stealing animals of the sort referred to in verses 1 and 4.
41
Nathan tells the story, or parable, to catch the conscience of the king: the story is really
about David’s murder of Uriah, and taking the murdered man’s wife, Bathsheba, as his
own new wife (2 Sam. 12:7-9).
42
The Hebrew word, rechem, here translated as “pity” can equally well be translated as
“compassion.”
20 Justice and Compassion in Biblical Law

settling the matter (Exod. 22:10-11). But restitution was required if an


animal was stolen while in the neighbor’s possession (Exod. 22:12).
Implicitly, the animal would not have been stolen but for the neighbor’s
negligence. However, if there was evidence that the farm animal had
been “torn by beasts” (RSV) there was to be no need for restitution
(Exod. 22:13). Also, if a borrowed or hired farm animal was injured or
died while its owner was with it, restitution was not required (Exod. 22:14-
15). In these cases where no restitution or compensation was called for,
the reason seems to be that the person in possession of the animals at the
time was presumed not to have been at fault. Interestingly, however, none
of these occurrences is described in biblical tradition as “an act of God,”
an expression sometimes used in supposedly secular Anglo-American law
with reference to unforeseeable harmful happenings or accidents.
A few tort laws are included in later biblical codes. One of these is
found in the Holiness Code, and repeated twice: “He who kills a beast shall
make it good” (Lev. 24:18 and 21a RSV). Here, as in several laws found in
the Covenant Code, the prescribed remedy is equal compensation,
whether in kind or by payment of equivalent value. This law does not dis-
tinguish between intentional and negligent killing of another’s “beast.”
Deuteronomy 25:1 sets out another law that may apply to civil litigation,
and also, as suggested by the verses that follow (25:2-3), to criminal
activity:

Suppose two persons have a dispute and enter into litigation, and the
judges decide between them, declaring one to be in the right and the
other to be in the wrong.

Here, what follows is punishment, rather than restitution or some other


form of compensation. This text, unlike many others relating to civil
actions, refers specifically to the role of “the judges.”
Anglo-American law does not provide that a person in position to do so
has a duty to rescue another person from imminent harm or another
person’s property from likely damage. Biblical law does impose such a
duty with respect to animals and other property. Deuteronomy requires
a person to take affirmative action to return neighbor’s stray farm ani-
mals to him, and to restore lost garments, or, inclusively, “any lost thing
of your brother’s which he loses and you find” (Deut. 22:1-3 RSV).
Deuteronomic law also requires a person to help one’s neighbor lift up
his fallen ass or ox. The earlier version of this law in the Covenant Code
even imposed a duty to restore an enemy’s stray ox or ass, and to help
Biblical Contract Law and Biblical Tort Law 21

him get his ass up and on its feet if the ass had foundered under its bur-
den (Exod. 23:4-5).
Deuteronomic law also includes a safety requirement for the purpose of
preventing or reducing the likelihood of foreseeable harm to persons:
“When you build a new house, you shall make a parapet for your roof,
that you may not bring the guilt of blood upon your house, if any one fall
from it” (Deut. 22:8 RSV). It is unclear whether the parapet or railing
referred here to was meant to be a temporary safeguard to prevent work-
men falling during construction, or a permanent architectural safety
feature.
A somewhat later law collection, known as the Priestly Code, lists various
intentional torts involving inanimate property, such as “deceiving [a] neigh-
bor in a matter of deposit or security, or through robbery” (RSV). Here the
remedy is full restitution of the property in question, plus an added one-
fifth (or 20 per cent) in punitive damages (Lev. 6:1-5). In addition, the
perpetrator must bring a “guilt offering” to “the priest” (Lev. 6:6-7).
A slightly later addition apparently was meant to provide for restitution
when the person to whom the wrong had been done was no longer alive. In
that case, restitution could be made to the victim’s kinsman, and if there
was no kinsman, to “YHWH for the priest” (Num. 5:5-10).
All of these “tort” laws and remedies evidently were meant to allocate
fairly the burdens of liability. The interests of both parties enter into the
equation: those who did the wrong, and those to whom it had been done.
The emphasis here is upon justice. But compassion may be implicit as
well, for once damages—including punitive damages—were paid, the
parties could again get on with their lives. There was no provision for
humiliating, ostracizing, or exiling wrong-doers who had compensated
those they had injured.

C. Biblical Contract and Tort Law, and


Modern Counterparts

Biblical scholars for the most part are unfamiliar with modern Anglo-
American legal concepts and categories. It is not surprising, therefore,
that such concepts and categories are rarely mentioned in biblical com-
mentaries. But it is surprising to find how closely many biblical laws
approximate certain basic features of modern jurisprudence.
Biblical laws and narratives clearly indicate that in order to form a con-
tract, both parties must agree to its terms. Typically one party (or person)
22 Justice and Compassion in Biblical Law

will propose terms; it is then up to the other either to agree to these


terms or reject them. This pattern of offer and acceptance, constituting
agreement is a standard feature of modern contract law. It is illustrated
in a number of biblical narratives, most notably: Jacob’s offer to sell
his brother, Esau, a bowl of stew in exchange for the other’s birthright
(Gen. 25:29-34); Jacob’s and Laban’s coming to terms as to labor contracts
(Gen. 29:21-30; 30:25-43); Balak’s hiring Balaam to curse Israel (Num.
22–24); and Tobit’s hiring a companion to accompany his son Tobias on a
journey (Tob. 5:14-16). Laws governing contractual arrangements
evidently were intended to prevent exploitation or mistreatment of affected
persons who might not otherwise be able to defend their own interests
because they lacked equal bargaining position or power. Such laws related
to the rights or interests of slaves (Exod. 21:1-11); debtors (Exod. 22:25-27;
Deut. 24:10-13) and day laborers (Lev. 19:13; Deut. 24:14-15).
Biblical tort laws also parallel modern counterparts, both with respect
to underlying concerns, values or purposes, and certain related distinc-
tions and “elements.” Such elements include a duty to care, or to avoid
harming others or their property; some breach of that duty (whether
intentional or negligent); and “proximate cause,” that is, foreseeable
harm to persons or damage to their property resulting from such breach.
These elements are all present, explicitly or implicitly, in the biblical tort
laws considered above. In addition, as has been seen, biblical laws set out
an affirmative duty to assist others under certain circumstances. Like
modern tort law, many biblical laws were intended to provide relief or
compensation to persons who were injured, or whose property was
damaged or destroyed as a result of other persons’ conduct.
The underlying value implicit in these laws seems to have been that
members of the community were entitled to bodily integrity, that is, to be
free from being harmed by others; and also to be free from actions by
others that resulted in loss of or damage to property. Implicitly, each
member of the community had a duty of care43 with respect to others
and their property: to avoid acting in ways that foreseeably could injure
others or damage their property. The dignity, worth, or value of each
member of society was taken as given, even, though with significant
qualifications, in the case of slaves.
Foreseeability is a basic element or feature of both biblical and modern
tort law. That is, to be liable for wrongdoing, the person whose conduct
resulted in harm should have been “reasonably” aware that his or her

43
On “duty” in modern tort law, see Keeton, ed., Prosser and Keeton, pp. 356–59.
Biblical Contract Law and Biblical Tort Law 23

conduct could have harmful consequences of the sort that resulted.44


Several laws relate to cases of simple negligence, where the consequences
were not intended, but nevertheless could be foreseen: for instance,
when someone leaves an open pit and a neighbor’s ox or ass falls into it
(Exod. 21:33-34), or when someone starts a fire that spreads into a neigh-
bor’s grain field (Exod. 22:6). In such cases, the law called for relief in
the form of restitution or equivalent compensation. One distinctive bib-
lical law requires those responsible for new construction to provide safety
railings, in order to prevent or reduce the risk of foreseeable harm to
others (Deut. 22:8).
Like modern tort law, biblical law treats reckless conduct and
intentional wrongdoing more severely. Some instances of reckless
endangerment can also be seen as criminal offenses.45 Purposeful
wrongdoing or intentional torts, such as theft, embezzlement, or
breach of trust,46 called for multiple or punitive damages, a common
remedy for intentional torts in modern law.
Biblical scholars generally maintain that the laws found in the Cove-
nant Code (Exod. 20:1–23:33) were set down at random, rather than in
accordance with any recognizable pattern or structure based on content.
However, when contemporary legal categories are used to describe the
laws found in Exodus 21:12 through Exodus 22:15, it turns out that these
laws appear to have been organized in a coherent structure after all.
The first block, Exodus 21:12-32, concerns injuries inflicted upon per-
sons.47 Some of these laws describe circumstances under which the
wrongdoer would be subject to capital, or some other punishment, or
might, instead, either be exonerated or required to pay damages, nota-
bly, the laws set out in Exodus 21:12-14 (homicide), and intentional or
reckless conduct resulting in injuries to persons along with appropriate
remedies (Exod. 21:18-25, 29-32). Two laws included here concern
reckless endangerment (Exod. 21:22-25 and 21:29-31), and call for inde-
terminate compensation as well as possible criminal penalties. Other laws
in this block call for capital punishment without mention of obviating or
mitigating circumstances (Exod. 21:15-17).48 Another set of laws requires
slave owners to free slaves they have injured in certain ways.49

44
See generally id., pp. 263–321.
45
Also see Chapter Five, Section B.1.b.ii.
46
See Exodus 22:1, 4, 9; Lev. 6:1–5.
47
As noted above, Exodus 21:1-11 relate to sales contracts.
48
As to these and other laws calling for the death penalty, see Part II of this book.
49
See Chapter Eight, Section B.3.
24 Justice and Compassion in Biblical Law

The second block, Exodus 21:33 through 22:1, 4-15, consists of laws con-
cerning theft of or damage to property. Chapter 22 verses 5 and 6 cover
negligent damage to another’s agricultural interests; verses 7 through 13
govern property held in “trust” or bailment; and verses 14 and 15 concern
borrowed property. These laws provide for various remedies, typically in
the form of restitution or cash. Persons who committed intentional torts
were liable for multiple, that is, punitive damages (Exod. 22:1, 4, 7, and 9).
As with the laws relating to injuries to persons, where circumstances indi-
cated that the apparent wrongdoer was without fault, no restitution or
damages payment was required (Exod. 22:8, 10-11, 13, and 15).50
The fact that nearly all biblical tort laws are grouped together in
Exodus 21:18 through 22:15 can be regarded as a further indication that
the biblical legislators or editors themselves distinguished such laws
from other legal categories. In any event, recognizing these laws as tort
laws should be helpful to biblical scholars when describing the substance
of biblical law, and to legal scholars when undertaking to trace similari-
ties and possible connections between ancient Near Eastern law and con-
temporary jurisprudence.
This series of tort laws is followed by a set of three criminal laws describ-
ing capital offenses (Exod. 22:18-20). These, along with the other crimi-
nal offenses against persons referred to in the first block (Exod. 21:12,
14-17, as well as laws involving reckless endangerment, Exod. 21:23,
29-31) are considered in Part II of this book. Those laws in the remain-
ing portions of the Covenant Code that can be classified as social legisla-
tion (Exod. 22:21-28; 23:1-12) are examined in Part III.51
Before turning to these topics, attention is directed in the following
chapter to another type of biblical civil law. This is the matter of transfer-
ring property by inheritance, and also doing so by testation, that is by
making wills or bequests to named beneficiaries. The latter form of trans-
fer has generally been ignored by both biblical and legal scholars.

50
Exodus 22:16-17, concerning what was to be done when “a man seduces a virgin who is
not betrothed” (RSV), could be read, if seen in the context of this second block, to imply
that virgin daughters were regarded as property. Alternatively, this text might be seen as
a displaced segment of the series of laws about injuries to persons set out in Exod.
21:12-32.
51
The other remaining laws define various religious obligations or prohibitions: Thus
Exod. 22:28-31; and 23:14-33.
Chapter 2

Transfer of Property by Inheritance


and Bequest

And you shall say to the people of Israel, “If a man dies, and has no son, then
you shall cause his inheritance to pass to his daughter. And if he has no daugh-
ter, then you shall give his inheritance to his brothers. And if he has no brothers,
then you shall give his inheritance to his father’s brothers. And if his father has
no brothers, then you shall give his inheritance to his kinsman that is next to
him of his family, and he shall possess it. And it shall be to the people of Israel
a statute and ordinance, as YHWH commanded Moses.”
Numbers 27:8-11 (RSV)

Before she died she distributed her property to all those who were next of kin to
her husband Manasseh, and to her own nearest kindred.
Judith 16:24 (RSV)

This topic involves questions that are more complicated than one might
suspect from reading typical annotations and bible dictionary articles.
Commentators and annotators often have attempted to resolve such
questions by making assertions grounded upon highly problematic
evidence. Although many remain open, it is possible to draw some likely
conclusions. This chapter does not consider texts pertaining exclusively
to the “inheritance” of the land of promise by the various tribes of Israel
such as Joshua 11:23; 13:1–19:51; and Ezekiel 47:13–48:29.1 Concern

1
On God’s choice of certain biblical persons and their “seed” to be heirs to the land or his
favor, see H. Z. Szubin and Bezalel Porten, “Testamentary Succession at Elephantine,”
Bulletin of the American Schools of Oriental Research (hereinafter BASOR) 252 (1983) 37. The
pseudepigraphic “testaments”—The Testament of the Twelve Patriarchs, The Testament
of Moses, and The Testament of Job—are not considered as testamentary documents.
Other than in T. Job (see below, text accompanying note 117), there is no reference to
property bequests in these “testaments.” See generally, J. J. Collins, “Testaments,” in
26 Justice and Compassion in Biblical Law

with preserving tribal inheritances is in the background of some texts


that are considered; but here attention is limited to laws and traditions
concerning transfer of property from persons in one generation to those
of another, or, in a few instances, to other persons within the same
generation in accordance with what, in modern legal terms, would be
called the laws of intestate succession and bequest.2
This chapter begins by reviewing the kinds of property subject to
transfer by inheritance or bequest. Attention then turns to texts pertain-
ing to intestate succession—that is, the transfer of property by operation
of law upon the death of the property holder without explicit provision
by will or bequest as to who will inherit or take afterwards. Such transac-
tions are referred to here as “inheritance.” Certain provisions regarding
levirate marriage and the Year of Jubilee are considered in this connec-
tion. The problematic nature of the so-called “birthright” is then dis-
cussed. Finally, this chapter examines a series of texts that appear to refer
to bequests or deathbed wills, and also to inter-vivos gifts made by donors
in anticipation of their eventual demise. Both of these latter types of
transfers are characterized here as “bequests,” a modern estate law term.
A concluding section summarizes probable findings, and reviews a
number of remaining open questions.
Three conclusions stand out in particular. The first is that biblical law
and custom make a distinction between transfer of property by inheritance
on the one hand, and transfer by bequest, legacy, or will on the other. This
distinction is strangely absent in most scholarly discussions of relevant texts.
The second conclusion is that, although relatively few scholars so recog-
nize, there is persuasive evidence that in biblical times widows commonly
inherited property upon the death of their husbands. Whether their inher-
ited property interest was equivalent to what, in Anglo-American law
would be characterized as “fee simple absolute,” or some lesser posses-
sory interest, such as usufruct or a life estate, is not so certain. The third
conclusion has to do with the “birthright.” That institution seems to have

Michael E. Stone, ed., Jewish Writings of the Second Temple Period (Philadelphia: Fortress
Press, 1984), pp. 325–55. In such NT texts as Mt. 19:29; 25:34; Mk 10:17; Eph. 1:13-14;
Col. 3:24; and 1 Pet. 1:4, “inheriting” or “inheritance” refers to receiving or entering the
coming Kingdom of God or messianic age, not to inheriting property. As to such usages,
see C. E. B. Cranfield, “Inherit,” in Alan Richardson, ed., A Theological Word Book of the
Bible (New York: Macmillan, 1978), pp. 112–14.
2
This chapter does not consider biblical traditions regarding sons succeeding their
fathers’ office or status. On that topic, see David Daube, Sons and Strangers (Boston: Inst.
of Jewish Law, Boston Univ. School of Law, 1984).
Transfer of Property by Inheritance and Bequest 27

been a precursor or adjunct to the law or practice of intestate succession.


Biblical scholars generally assume that under terms of “birthright,” all
first-born sons were to receive a double portion of their fathers’ inherit-
ance. The difficulty is that no biblical text so specifies. Moreover, there is
little, if any, evidence that this practice was actually observed during the
biblical period. It may be concluded that less is known about “birthright”
than is commonly supposed.

A. Property Subject to Transfer by Inheritance


or Bequest

Virtually all kinds of property appear to have been subject to transfer by


inheritance or bequest. Provision for transferring real property (land,
fields, and houses) was centrally important in biblical law and tradition.3
Wealth, generally, and certain particular forms of the same could be
inherited or bequeathed, e.g., houses, fields, slaves, silver, gold, and
cattle.4 Genesis traditions tell that Abraham gave all that he had to his
son, Isaac.5 It has even been proposed that in the earliest form of levirate
marriage, “the wife, being her husband’s property, was passed on, like the
rest of his estate, to his heir.”6 No biblical texts indicate that wives, daugh-
ters, or sisters were regarded as property subject to inheritance or bequest.
However, 1 Kings 2:13-25 could be read to mean that Solomon regarded
Abishag — his late father’s female companion and bed-warmer, though
at most, only nominally a concubine (l Kgs 1:1-4)—as royal property
reserved for the heir to the throne. It may be that in the early monarchy
the king’s harem was inherited by his successor.7

3
See, e.g., Gen. 48:21-22; Lev. 25:10-34; 27:16-25; Prov. 19:14; 23:10. Raymond Westbrook
has demonstrated convincingly that in biblical times, in order to acquire an inheritable
estate in real property, it was necessary to pay the “full price.” “Purchase of the Cave of
Machpelah,” 6 Israel L. Rev. 29–38 (1971); “The Price Factor in the Redemption of
Land,” Revue International des Droits de l’Antiquite, 3rd Ser. 32 (1985) 115–16. Westbrook
cites such texts as Gen. 23:1-20 (cf. 25:9-10); 33:19; 49:29-31; and 50:13.
4
See, e.g., Lev. 25:44-46; 2 Chron. 21:3; Prov. 19:14; Jdt. 8:7.
5
Gen. 24:36; 25:5-6.
6
Cyrus H. Gordon, “Fratriarchy in the Old Testament,” Journal of Biblical Literature (here-
inafter, JBL) 54 (1935) 230; F. Charles Fensham, “Widow, Orphan and Poor in Ancient
Near Eastern Legal and Wisdom Literature,” Journal of Near Eastern Studies (hereinafter,
JNES) 21 (1961) 136. But see Millar Burrows, The Basis of Israelite Marriage (New Haven:
American Oriental Society, 1939), p. 45.
7
Roland de Vaux, Ancient Israel: Its Life and Institutions (New York: McGraw-Hill, 1961),
pp. 115–17. Thus also the annotator, The New Oxford Annotated Bible New Revised Standard
28 Justice and Compassion in Biblical Law

B. Inheritance: Descent of Property through


Intestate Succession

The first part of this section focuses on biblical laws and traditions relat-
ing to intestate succession: that is, provisions or customs whereby on a
man’s death, his property would pass to other persons. As will be seen,
biblical laws and traditions provided for inheritance not only by sons, but
also by daughters and widows. The second part then turns to inheritance
arrangements implicit in biblical law and tradition concerning “levirate
marriage.”

1. The Law of Intestate Succession


Laws may be either written or unwritten. Several written texts set out
substantive provisions. Unwritten laws can be inferred by observing
customs and practices as recorded in narratives and other traditions.
The basic biblical law of inheritance (or “intestate succession” in mod-
ern law) is found in Numbers chapter 27. But this written law probably
was supplemented by traditional practices long understood to have the
force of law.8 See, for example, Proverbs 19:14: “House and wealth are
inherited from fathers, but a prudent wife is from YHWH” (RSV).
As will be seen, many other texts assume that property passes by inheri-
tance from one generation to the next.

a. Sons
It appears that from early times it was expected that sons would inherit
their fathers’ property upon the latter’s demise.9 The brief account in
Joshua 17:3-6 concerning the daughters of Zelophehad clearly presumes

Version with the Apocrypha (hereinafter, NOAB-NRSV) (New York: Oxford Univ. Press,
1991) 427. Also, see below, note 101.
8
Other ancient near eastern laws, known in the aggregate as “the cuneiform laws,” may
well have been familiar to legal/political leaders throughout the biblical period and so
served as the unwritten or customary law of the land. See generally, Raymond West-
brook, “The Law of the Biblical Levirate,” Revue Internationale des Droits de l’Antiquite, 3d
Ser., 24 (1977) 85–86. It is unlikely that all cuneiform law was considered authoritative
in Israel; but where such known laws are apparently presupposed, they may well have
been applied as customary law. While the substance of Israelite law is not necessarily
unique, much of it may be distinctive. See John Van Seters, “The Problem of Childless-
ness in Near Eastern Law and the Patriarchs of Israel,” JBL 87 (1968) 401–08.
9
This pattern appears in instances where the sons’ mothers are already deceased or are
unmentioned. In cases where widows with sons are mentioned, the widows evidently
Transfer of Property by Inheritance and Bequest 29

that a father’s property would normally pass to his sons.10 Zelophehad


had no sons; so, apparently after his death, his five daughters contended
that they should be given their father’s inheritance, and it was so ordered.
The anecdote seems to presuppose the narrator’s acquaintance with the
episode described at Numbers 27:1-11, where the five daughters pre-
sented their claim to Moses,11 who brought it to YHWH. As the story is
told, YHWH then not only ruled in the daughters’ favor, but also set out
the following law of intestate succession for all Israel:

And you shall say to the people of Israel, “If a man dies, and has no son,
then you shall cause his inheritance to pass to his daughter. And if he
has no daughter, then you shall give his inheritance to his brothers. And
if he has no brothers, then you shall give his inheritance to his father’s
brothers. And if his father has no brothers, then you shall give his inher-
itance to his kinsman that is next to him of his family, and he shall
possess it. And it shall be to the people of Israel a statute and ordinance,
as YHWH commanded Moses.” (Num. 27:8-11 RSV)12

That sons, if any, normally were the sole heirs (absent a surviving widow)
is implied in numerous other biblical texts, for instance, Judges 11:1-2;
2 Chronicles 21:1-3; Proverbs 17:2; and Luke 12:13. But who is to be
counted as “sons” for purposes of inheritance? Biblical traditions refer to
sons by their fathers’ concubines, their wives’ maids, by slaves, and by
harlots. It seems that any such sons might inherit, absent steps being
taken to prevent their doing so.

inherited the property. See 2 Kings 4:1-7 and 8:1-6, discussed below, text preceding and
accompanying notes 44 and 45.
10
See generally, J. Weingreen, “The Case of the Daughters of Zelophehad,” Vetus Testamen-
tum (hereinafter, VT) 16 (1966) 518–22.
11
One annotator comments, “The request of the daughters of Zelophehad was unusual in
that, according to ancient law, normally women did not inherit property.” The New Oxford
Annotated Bible with the Apocrypha (hereinafter, NOAB) (New York: Oxford Univ. Press,
1977), pp. 200–201; NOAB-NRSV, p. 204. The annotator does not say what that “ancient
law” was or where it is to be found. Biblical tradition contains no such law..
12
Islamic law as set out in the Kur’an contained even more specific provisions. Under this
law, each person or class of persons would receive a pre-determined fractional share of
the estate (fara’id). See esp. Suras 4:11-14, 176; 2:180, 240; and 5:106. Such provisions
assumed and limited the power of testation. See generally, David S. Powers, “On Bequests
in Early Islam,” JNES 48 (1989) 185–200. Post-biblical Judaism introduced numerous sup-
plements to the provisions of Num. 27. See, e.g., Arnold Block and Hyman Klein, trans.
& eds., Maimonides Law of Inheritance (London: Shapiro, Valentine & Co., 1950); Dayan I.
Grunfeld, The Jewish Law of Inheritances (Oak Park, Mich.: Targum Press, 1987); Joseph
Nissim, Rudiments of the Jewish Law of Inheritance Upon Intestacy and Bequests, Publications of
the Society for Jewish Jurisprudence (London: Kelly & Sons, 1931); Reuven Yaron, Gifts
in Contemplation of Death in Jewish and Roman Law (Oxford: Clarendon Press, 1960).
30 Justice and Compassion in Biblical Law

Genesis 30 reports that Jacob had several sons by the maids of his wives,
Rachel and Leah, respectively, Billah and Zilpah. Rachel evidently
regarded the arrangement with Billah as equivalent to what we might call
surrogate motherhood. Thus she said to Jacob, “Here is my maid, Billah;
go into her, that she may bear upon my knees, and even I may have
children through her” (Gen. 30:3 RSV). Rachel regarded the sons subse-
quently born to Billah as her own, and she, Rachel, named them: Dan and
Naphthali (Gen. 30:6, 8). Likewise, Leah named the sons Jacob had by her
maid, Zilpah: Gad and Asher (Gen. 30:11-13). Rachel and Leah each gave
these maids to Jacob “as a wife” (Gen. 30:4, 9). It would appear, however,
that the wifely status of Billah and Zilpah was only nominal, and their
status as maid-servants primary. Thus in Genesis 35:23-26, Billah and
Zilpah are described simply as the maids of Rachel and Leah.13 No tradi-
tion explicitly states that Dan, Naphthali, Gad, or Asher received an
inheritance from Jacob. But these four are included among the “sons”
whom Jacob “blessed” or “charged” shortly before his death (Gen. 49:
1-33). It may be inferred that they were to receive their “inheritances”
along with the other brothers.14 Genesis 48:5-6 seems to say that all of
Joseph’s brothers were to inherit from Jacob. Nothing here suggests that
Dan, Naphthali, Gad and Asher were to be excluded. Subsequent
biblical tradition reports that their descendants received “inheritances”
in the form of tribal allotments ( Josh. 13:24-28; 19:24-31).
The story about Sarai, Abram, Hagar, and Ishmael likewise suggests
that a childless wife could “obtain children” by giving her maid to her
husband “as a wife” (Gen. 16:1-3).15 The problem for Sarai was that Hagar
was not content to serve merely as a surrogate mother, but acted rather

13
In Gen. 35:22, Billah is characterized merely as Jacob’s “concubine.”
14
Thus Van Seters, “Problem of Childlessness,” p. 405. Compare Code of Hammurabi,
sect. 170, translated in D. Winton Thomas, Documents from Old Testament Times
(New York: Harper & Row, 1961), p. 33, which reads:
If a citizen, whose wife has borne him children and (also) his bondmaid has borne
him children, (and) the father during his lifetime has said to the bondmaid’s chil-
dren, which she has borne him, ‘My children’; he has added them to the children of
the wife. After the father goes to his fate, the children of the wife shall divide the
property of the father’s house equally with the sons of the bondmaid; the son and
heir, the son of the wife, shall chose a share (first) and take it.
See also Code of Hammurabi, sects. 145 and 146, which apply only when a man
(“citizen”) has taken a priestess as wife. Thomas, Documents, p. 32.
15
Van Seters urges that unlike most other ancient Near Eastern law and custom, the
biblical practice here attested was “clearly for the sake of the wife and not the husband.”
“Problem of Childlessness,” p. 403. See also Gerhard von Rad, Genesis, A Commentary
(Philadelphia: Westminster, 1961), p. 186. Von Rad suggests that under this arrange-
ment the wife adopts the children borne by her maid. Id. at p. 289.
Transfer of Property by Inheritance and Bequest 31

as a wife and mother in her own right (Gen. 16:4-6). It was Hagar, not
Sarai, who would name her son Ishmael (Gen. 16:11). Ishmael is expressly
described as Hagar’s son (Gen. 21:9, 10, 13) as well as Abram’s (Gen.
16:15-16; 21:11). As such, it seemed that he would inherit from Abraham.
But Sarai (now renamed Sarah) objects and tells Abraham to send Hagar
and Ishmael away, “for the son of this slave woman shall not be heir with
my son Isaac” (Gen. 21:10 RSV). Abraham reluctantly obliges, and sends
Hagar and Ishmael away into the wilderness (Gen. 21:11-14). We see
here that if a man agreed, his wife could cause him to disinherit his son
by her maid.16
Likewise, in Judges 11:1-2, we see that legitimate sons might, if they so
desired and were able, drive off their father’s son by a harlot and so cause
him to be disinherited. Implicitly, Jephthah would have inherited from
his father if these half-brothers had not succeeded in forcing him out.17
Interestingly, whatever birthright may have meant,18 it does not seem to
have been a factor in the stories of either Ishmael or Jephthah, even
though Ishmael was the first of Abraham’s sons and Jephthah may have
been the first of his father’s.

16
A Harper’s Bible Dictionary commentator takes Gen. 21:10 as evidence that in biblical
times “the sons of a concubine did not inherit.” Harper’s Bible Dictionary (hereinafter,
HBD) (San Francisco: Harper & Row, 1985), p. 422. Likewise, The New Westminster Diction-
ary of the Bible (hereinafter, NWDB) (Philadelphia: Westminster, 1976), pp. 375–76.
The point, however, is that Ishmael would have inherited had not Sarah insisted on,
and Abraham agreed to, his banishment. Thus Van Seters, “Problem of Childlessness,”
p. 403, and Otto J. Baab, “Inheritance,” in The Interpreter’s Dictionary of the Bible, (hereinaf-
ter, IDB), vol. 2 (New York: Abingdon, 1962) p. 701. See also Gen. 25:5-6, which says that
Abraham gave all he had to Isaac, but also gave gifts to the sons of his concubines, which
sons, “while he was still living . . . he sent . . . away from his son Isaac, eastward to the east
country.” The probable implication is that Abraham sent these sons away so that they
would not be around to claim a share of the inheritance he had given or bequeathed to
Isaac. The New English Bible annotator, commenting on Gen. 21:8-21, asserts that
“[a]ncient Near Eastern law stipulated that the offspring of a slave wife could either
inherit with the children of the free woman or be set free.” The New English Bible with the
Apocrypha, Oxford Study Edition (hereinafter, NEB) (New York: Oxford Univ. Press,
1976), p. 20. The annotator does not mention which ancient Near Eastern law so
provided. Possibly the annotator was thinking of the Lipit-Ishtar Law Code, sect. 25,
which reads:
If a man married a wife and she bore him children and these children are living, and
a slave also bore children to her master but the father granted freedom to the slave
and her children, the children of the slave shall not divide the estate with their
former master.
James B. Pritchard, ed., Ancient Near Eastern Texts (hereinafter, ANET) (Princeton Univ.
Press, 1950), p. 160.
17
See Lipit-Ishtar Law Code, sect. 27, which provided that if a man’s wife had not borne
him children, any children borne to him by a harlot would be his heirs. ANET, p. 160.
18
See Section A.4. of this Chapter.
32 Justice and Compassion in Biblical Law

One text, 1 Chronicles 2:34-35, suggests that a slave might serve as a


surrogate father for purposes of perpetuating the family line. Having no
son but only daughters, a certain Sheshan married one of them to his
Egyptian slave. The son of this marriage then fathered a continuing
succession of male descendants who, presumably, inherited whatever
property Sheshan had to pass down to his heirs (1 Chron. 2:36-41).19
A few texts suggest that in the absence of other offspring, a slave might
inherit, possibly as a “constructive” son, that is, a son by operation of
law.20 Thus early in the Abraham cycle, Abram complains that God has
given him no offspring, with the result that a slave born in his house
would be his heir (Gen. 15:3).21 The phrasing implies that a slave born in
the house of an otherwise childless father would be counted as a son.
YHWH therefore assures Abram that the slave born in his house would
not be his heir; instead, Abram’s own son would be his heir (Gen. 15:4).
The NOAB-RSV annotator suggests that this text may presuppose the
practice attested in Nuzi, whereby “a slave could be adopted as the heir
in case of childlessness.”22 Nothing is said in Genesis 15:2-4, however,

19
So also Thomas and Dorothy Thompson, “Some Legal Problems in the Book of Ruth,”
VT 18 (1968) 87: “Through this marriage Sheshan himself obtained sons and heirs.”
20
Perhaps the underlying consideration in Genesis 15:3-4 was that a slave born in his mas-
ter’s house could be presumed to have been fathered by the master—an early version of
the doctrine, res ipsa loquitur (The situation speaks for itself”). But see William
Blackstone, Commentaries on the Laws of England, 9th edn. (London: W. Strahan, 1783),
vol. 2, p. 12. Commenting on Genesis 15:3-4, Blackstone conjectured that the practice
there attested had derived as follows:
A man’s children or nearest relations are usually about him on his death-bed, and are
the earliest witnesses of his decease. They became therefore generally the next imme-
diate occupants, till at length in process of time this frequent usage ripened into
general law. And therefore also in the earliest ages, on failure of children, a man’s ser-
vants born under his roof were allowed to be his heirs, being immediately on the spot
when he died.
Compare Proverbs 17:2 and 29:21 which also may refer to slaves inheriting from their
masters.
21
It is not entirely clear from the context whether this slave was Eliezer of Damascus who
was characterized in the preceding verse as the heir of Abram’s “house.” It is possible
that Eliezer was an otherwise unidentified kinsman of Abram’s who would have inher-
ited under the kind of custom institutionalized in Num. 27:11. There is no mention of
Eliezer in Abraham’s family tree in Gen. 11:24-28; but possibly the two slaves were the
same person.
22
NOAB-RSV, Old Testament sect., p. 17; Von Rad suggests that Abraham may have been
cognizant of such practice, noting that Nuzi texts included “several contracts, accord-
ing to which in the event of childlessness slaves were adopted; their duty then was to
give the testator proper burial.” Genesis, pp. 178–79. See also Cyrus H. Gordon, “Biblical
Customs and the Nuzi Tablets,” in Edward F. Campbell, Jr. and David Noel Freedman,
eds., The Biblical Archaeologist Reader, vol. 2 (Garden City: Anchor-Doubleday, 1964),
Transfer of Property by Inheritance and Bequest 33

about adoption.23 Here it seems to be enough for the slave to have been
born in Abram’s “house.”

b. Daughters
The law of intestate succession in Numbers 27:8 provides that if a man
has no son, “his inheritance shall pass to his daughter” (RSV). Reference
to “his daughter” might be read to mean that only one daughter, perhaps
the older or oldest, would inherit. However, the accompanying narrative,
Numbers 27:1-7, and also Joshua 17:3-6 and Numbers chapter 36, all
make it clear that all five of the daughters of Zelophehad were to, and
did inherit their father’s property. Read in this context, Numbers 27:8
therefore probably should be understood to refer to daughter or daugh-
ters, if there were more than one.
According to Genesis 31:14-16, Rachel and Leah evidently expected to
receive an inheritance from their “father’s house” even though he also had
sons (Gen. 31:1). Possibly daughters did inherit under Syrian law, at least
if they were older than their brothers. Cyrus Gordon suggests that, pursu-
ant to practices attested at Nuzi, Laban had adopted Jacob, and that this
relationship is in the background of their property transactions and other
dealings.24 The women’s complaint that their father, Laban, had been
“using up the money given for us” (Gen. 31:15 RSV), could refer to their
dowry,25 which may have been in addition to their expected inheritance.26
Apart from these instances, there seem to be no other biblical texts
reporting daughters’ inheriting or expecting to inherit from their
parents.27 A few gender neutral expressions could be read to mean, in

pp. 22–23. Compare Code of Hammurabi, sect. 170, which provides that a man may
adopt sons borne him by a bondmaid or maid servant. See above note 14.
23
Daube suggests that traditions regarding adoption were deleted from biblical materials
as part of Nehemiah’s and Ezra’s program of restoring family purity. Daube, Sons,
p. 48.
24
Gordon, “Biblical Customs,” pp. 24–27. It has also been suggested that Jacob’s relations
with Laban and his family evidence a pattern of matrilineal descent. Nancy Jay,
“Sacrifice, Descent, and the Patriarchs,” VT 38 (1988) 59–64.
25
See generally, Burrows, Basis, pp. 41–46.
26
See A. M. Brown, The Concept of Inheritance in the Old Testament, unpublished Ph.D. disser-
tation, Columbia University, 1965, pp. 10–11, cited in Donald A. Leggett, The Levirate
and Goel institutions in the Old Testament: with Special Attention to the Book of Ruth (Cherry
Hill, NJ: Mack Publ. Co., 1974), p. 215 n. 21.
27
Job 42:15 says that Job gave his daughters “inheritances along with their brothers.” The
likely meaning here is that he gave them property by bequest, not that they received
these “inheritances” by intestate succession. See Section C.2. of this Chapter. It cannot
be determined whether Sheshan’s daughters would have inherited his property if
34 Justice and Compassion in Biblical Law

effect, inheritance by sons and/or daughters, but none necessarily bears


that meaning.28
In the story of Tobit, apparently contrary to the law of intestate succes-
sion set out in Numbers 27, when Tobias’ mother-in-law and father-in-law
died, their daughter, Sarah, who evidently was their only child,29 did not
inherit their property. Instead, Tobias, Sarah’s husband, inherited it (Tob.
14:13-14). Perhaps only unmarried daughters of sonless fathers inherited
from their fathers. This conclusion accords with the further legislation
concerning the daughters of Zelophehad set out in Numbers chapter 36.
Numbers 36 is concerned, in the first instance, to make sure that each
of the tribes of Israel would preserve its own original inheritance as
allotted in the days of Joshua. Lest inheritances be transferred from one
tribe to another (Num. 36:9), the following provision was added con-
cerning heiresses:

[E]very daughter who possesses an inheritance in any tribe of the


people of Israel shall be wife to one of the family of the tribe of her
father, so that every one of the people of Israel may possess the inher-
itance of his fathers. (Num. 36:8 RSV)

The clear implication is that when a woman who had inherited her
father’s property married, the inherited property then became her
husband’s. Tobias’s inheriting from his in-laws is only a corollary to this

none of them had married and had children. 1 Chron. 2:34-41. Their father saw to it
that one of them did marry; the resulting line of male progeny presumably inherited.
On daughters’ status as heirs in other ancient Near Eastern cultures, see Zafrira
Ben-Barak, “Inheritance by Daughters in the Ancient Near East,” Journal of Semitic
Studies 25 (1980) 22–33.
28
Baab points out that the Septuagint version of the law of levirate marriage in Deuteron-
omy 25:6 reads “child” (to paidion) rather than “first son,” IDB, vol. 2, p. 702. This change
may suggest that the editor intended the text to be read so that a first-born daughter
could be the deceased’s heir under terms of levirate marriage, at least if there were no
later-born sons. On the basis of Septuagint evidence (Deut. 25:5, 6), Westbrook con-
cludes that “the most likely hypothesis is that until late biblical times at least, the
existence of a daughter did not affect the imposition of the levirate, nor was the birth of
a daughter considered fulfilment of the duty.” “Law of the Biblical Levirate,” p. 79. See
also: Ps. 25:13 (the “children” of the righteous man shall “possess the land”); Prov. 19:14
(“House and wealth are inherited from fathers” RSV); and Prov. 23:10 (“Do not remove
an ancient landmark or enter the fields of the fatherless” RSV).
29
According to Tobit 6:10-11, Sarah was her parents’ only daughter and heir.
If she had had brothers, they, presumably, would have inherited under the provisions of
Num. 27:8-12 and Sarah would have taken nothing.
Transfer of Property by Inheritance and Bequest 35

provision, showing that if a married woman inherited from her parents,


the inheritance would pass through her to her husband.30
The writer of Tobit evidently had some acquaintance with the provi-
sions of Numbers chapter 36, but greatly exaggerated the latter’s scope
and penalties. As Tobias and the angel Raphael came near to Ecbatana,
the angel, also known as “Brother Azarias,” tells Tobias that as Sarah’s
“only eligible kinsman,” he is entitled to marry her and to receive her
inheritance (Tob. 6:11). It is just barely possible that there were no other
men left in the whole tribe of Naphtali to which Tobias belonged,31 but
extremely unlikely, even allowing for the untimely demise of Sarah’s
previous seven would-be husbands who all, presumably, also had been
eligible kinsmen and Naphtalites.32 According to Numbers 36:6, the
daughters of Zelophehad could marry whomever they thought best,
provided the husbands came from their tribe.33 Heiresses were not
required to marry their nearest kinsman. Thus it is probably an over-
statement to say that Tobias alone was entitled to marry Sarah and receive
her inheritance.34 Likewise, the angel’s claim that, under the law, Sarah’s
father would incur the death penalty if he gave Sarah to any other man
(Tob. 6:12) must be regarded as literary or dramatic hyperbole.

c. Widows
Widows were not provided for in the law of intestate succession in Num-
bers chapter 27. As we shall see, a widow could receive her husband’s
property by bequest (Jdt. 8:7). But absent such bequest, might she inherit
his property by operation of law? Several texts suggest that she could
inherit his real property.

30
Tobit 14:13. See below, note 46 and accompanying text.
31
Tobit 1:1, 4, 5; 7:3.
32
Possibly the narrator was thinking of levirate marriage tradition, under which the near-
est surviving male kinsman had the right (or duty) to marry the sonless deceased’s
widow. See Section B.2. of this Chapter.
33
More precisely, such heiresses were to marry within “the family” of their father’s tribe.
Westbrook suggests that this concept meant that heiresses were likely to marry relatives
no more remote than cousins. See Westbrook, Property and the Family, pp. 22, 163–64.
34
According to Tobit 8:20-21, Raguel, Tobias’ father-in-law, promised to give Tobias half
his property at the end of the wedding feast, and the rest when he (Raguel) and his wife
died. This promise, under oath, could be viewed either as a will or as part of the mar-
riage contract. See reference to a contract in Tob. 7:14. But if, under customary law,
Tobias was entitled to receive his in-laws’ property upon their death anyway by virtue of
having been married to their only daughter, the promise merely confirmed that right.
36 Justice and Compassion in Biblical Law

One such text is Ruth 4:3. Here Boaz tells the late Elimelech’s nearest
(though nameless) kinsman that the widow, Naomi, “is selling the parcel
of land which belonged to our kinsman Elimelech.”35 It is reasonable to
infer that if she was selling it, title must have passed to her by operation
of the law upon her husband’s, Elimelech’s, death,36 unless, of course, he
had bequeathed it to her.37 Other features of the Book of Ruth likewise
support the conclusion that Naomi had inherited some or all of her
deceased husband’s property.38
In cases (to be considered shortly) where a widow with a son (or sons)
appears to inherit the decedent’s property, it might be argued that the
property was hers only as trustee, pending her son’s reaching the age of
majority. In Ruth, however, Naomi has no living sons and no one expects
her to have any. There can be no question of Naomi’s holding property as

35
See also Ruth 4:5, the Hebrew text of which, translated literally, reads, “What day you
buy the field from the hand of Naomi and from Ruth the Moabitess, you have bought
the wife of the dead to raise up the name of the dead upon his inheritance.” Translation
by David Daube, Ancient Jewish Law (Leiden: Brill, 1981), p. 39. Cf. the King James
Version. From this, it could be inferred that Ruth had inherited a portion of her father’s
or late husband’s estate. See, however, Ruth 4:9 where Boaz says he has bought the land
“from the hand of Naomi,” with no mention of Ruth’s ownership.
36
Raymond Westbrook has urged that Ruth 4:3 should be understood to mean that the
land had already been sold to a third party. “Redemption of Land,” Israel L. Rev. 6 (1971)
373–75; “Price Factor,” p. 126. He suggests that Elimelech or Naomi had sold the land at
discount before leaving for Moab, and that in Ruth 4, it is a matter of redeeming this
land from the third party. But Ruth 4:5 and 9 clearly say that the present purchase is
from the hand of Naomi. Leggett argues persuasively against the theory that the land had
already been sold. Levirate and Goel, pp. 218–22. So also Millar Burrows, “The Marriage
of Boaz and Ruth,” JBL 59 (1940) 446–47; de Vaux, Ancient Israel, pp. 166–67; and Jack
S. Sasson, Ruth: A New Translation with Philological Commentary and A Formalist-Folklorist
Interpretation (Baltimore: The Johns Hopkins Univ. Press, 1979), pp. 108–115. It appears
more likely that Naomi’s land was subject to redemption because her husband and their
sons had died, leaving her without other means of support, than because of some possi-
ble (but unmentioned) previous sale to a third party.
37
See Leggett, Levirate and Goel, p. 217; Edward F. Campbell, Jr., Ruth: A New Translation
with Introduction, Notes, and Commentary, Anchor Bible vol. 7 (Garden City: Doubleday,
1975), p. 158. Several legal issues arise in Ruth 4:1-12. See Campbell, Ruth, p. 154, refer-
ring to “the ocean of ink which has been spilled over . . . unanswered questions” there.
We do not attempt to solve those questions, but only to note those relating to inheri-
tance, and to suggest some possible conclusions.
38
So also Leggett, Levirate and Goel, pp. 211–18. “The announcement, made in the pres-
ence of the carefully assembled body, that Naomi was selling the property, went
unchallenged; thus there can be little doubt that she was lawfully in possession of the
property.” Id. at p. 218. See also Burrows, “Marriage,” p. 448: “[W]e must admit that the
book of Ruth assumes the practice of inheritance by widows . . . At any rate our author
assumes that his readers will not regard it as strange.” Compare Sasson, Ruth, pp. 108–15,
117–20, 139–40. Sasson urges that although Naomi was in possession of the land and was
selling it, she had not inherited it, but was holding it as Elimelech’s land pending sale.
When it was sold, however, she would be entitled to the proceeds.
Transfer of Property by Inheritance and Bequest 37

trustee for any sons.39 Therefore, she appears as owner of her late hus-
band’s property in her own right. She has had two sons, but they both pre-
deceased her. Since the sons were grown and had survived their father,
Elimelech, it is possible that at his death the sons had inherited from him.40
Then, when her sons died, Naomi would have inherited from them,41 or at
least from Chilion, since Ruth might have inherited from Mahlon. This
pattern of succession is intimated in Ruth 4:9, where Boaz announces that
“this day . . . I have bought from the hand of Naomi all that belonged to
Elimelech and all that belonged to Chilion and Mahlon.” This sequence could
also explain why in the Hebrew text of Ruth 4:5, Boaz tells the nearer kins-
man that the field belongs to both Naomi and Ruth. Ruth would have
inherited the portion that belonged to her late husband, and Naomi
would have inherited the rest. Alternatively, Naomi may have inherited the
whole parcel from Elimelech. The evidence could lead to either conclu-
sion. As a convenience, we shall refer to the parcel or field as Naomi’s.
It has been countered that, because Ruth “gleaned” in Boaz’s field
rather than Naomi’s, we should conclude that Naomi no longer owned
the field she was selling. Ruth 1:22, however, suggests another explana-
tion: After many years of absence, Naomi and Ruth returned “at the
beginning of the barley harvest.” Very likely Naomi’s field provided no
harvest because no one had planted it at the beginning of the growing
season.42 Moreover, three distinct texts (Ruth 4:3, 5, and 9) make clear
that Naomi (if not also Ruth) owned the field that had belonged to the
late Elimelech. The field was not the only property Naomi may have
inherited from Elimelech. She also evidently had inherited the house in

39
De Vaux urges that Naomi was merely acting as the guardian of her deceased son’s
rights. Ancient Israel, p. 54. But see Westbrook, “Redemption of Land,” pp. 372–73.
40
Compare Westbrook, “Law of the Biblical Levirate.” Here he seems to say that Boaz
redeemed Mahlon’s land (p. 66), but later concludes that neither Mahlon nor Chilion
ever inherited the family property (p. 77). Westbrook’s theory is that either Elimelech
(or Naomi, as his agent) had sold the land before moving to Moab. See also Westbrook,
“The Price Factor,” pp. 109–110, 126, where he suggests that the right of redemption
arose only when the seller had been compelled to sell at discount because he had become
poor. While Elimelech might have become poor and sold his land to a third party before
moving to Moab, the text does not so indicate. Rather, it appears that it was the levirate
law that prompted the transactions reported in Ruth ch. 4. Westbrook has carefully
described the connection between levirate and redemption law. “The levirate therefore
works alongside redemption. Just as the right of redemption restores to the family prop-
erty that is lost (or threatened to be lost) by alienation, so the duty of the levirate restores
a family to its property from which it is separated by extinction of the male line.”
“Redemption of Land,” p. 372. The latter conditions evidently obtain in Ruth 4.
41
Thus D. R. G. Beattie, “The Book of Ruth as Evidence for Israelite Legal Practice,” VT 24
(1974) 254–55.
42
So also Leggett, Levirate and Goel, pp. 219–20. Compare Campbell, Ruth, p. 157.
38 Justice and Compassion in Biblical Law

Bethlehem where she had lived with her husband and sons before they
all went to sojourn in Moab. To be sure, no text specifically refers to
Naomi’s “house.” But several texts suggest that after returning to Judah,
Naomi resided in Bethlehem; Ruth 2:23, for instance, states that Ruth
“lived with her mother-in-law” there.43
That widows inherited their deceased husbands’ property is likewise
evidenced in two different stories from the Elisha cycle. The first is 2 Kings
4:1-7, where Elisha helps a widow by causing her “cruse” or jar of oil to
keep flowing until it produced enough to pay off her debts. We cannot tell
whether the widow inherited her husband’s debts, but she did evidently
inherit and continue to live in the family house with her sons. The story in
2 Kings 8:1-6 also apparently concerns a widow with a son; her husband,
who was said to be old in 2 Kings 4:8-37, is not mentioned at all in 8:1-6,
which refers to her house and land.44 It is reasonable to infer that her
husband had died and that she had inherited his property.45 That a widow
might inherit her husband’s property is also suggested in the story of
Tobit. Raguel promises his son-in-law, Tobias, that he would receive the
balance of his (Raguel’s) property “when my wife and I die” (Tob. 8:20-21).
The implication seems to be that if Raguel died first, his wife would
inherit a life interest in the estate, which would then pass to Tobias only
after her death.46 Proverbs 15:25 suggests that widows inherited their
deceased husbands’ fields or land: “The Lord tears down the house of

43
See also Ruth 1:22; 2:18; 3:1-3, 15-16. None of these texts suggests that Naomi and
Ruth lacked a dwelling place or had to live “on the street,” or that they were guests in
anyone else’s home. Burrows concludes that Naomi and Ruth lived in their own (or
Naomi’s) house. “Marriage,” p. 447. Sasson assumes that they lived in Naomi’s “house.”
Ruth, p. 124.
44
2 Kings 8:3, 5, 6.
45
It has been suggested that Naomi and the Shunammite widow of 2 Kings 4 and 8 might
have held their deceased husbands’ properties as trustees or executors rather than as
owners. Millar Burrows, An Outline of Biblical Theology (Philadelphia: Westminster Press,
1948), p. 302. There is no evidence of trusteeship or estate administration anywhere in
biblical tradition, however, and it seems likely that these institutions had not yet
emerged. Cuneiform laws, however, do provide for something like such trusteeship
arrangements. Whether a biblical widow with a son (or sons) “inherited” property from
her husband or served as “trustee” after his death by operation of law may be largely a
semantic question. In either event, she apparently held many of the “sticks” of owner-
ship, including possession and control of the property at least during her son’s (or
sons’) minority. It is completely unclear however, when such sons attained “majority” or
ownership themselves.
46
It could be inferred instead that Raguel and his wife owned their property jointly; but
such joint property ownership arrangements are otherwise unknown in biblical, and are
rare in ancient Near Eastern tradition. But see Yochanan Muffs, Studies in the Aramaic
Legal Papyri from Elephantine (Leiden: Brill, 1969), p. 33, n. 3.
Transfer of Property by Inheritance and Bequest 39

the proud, but maintains the widow’s boundaries” (Prov. 15:25).47


Evidently a widow’s property might be subjected to seizure or encroach-
ment by predatory relatives or neighbors.48 Micah 2:9 refers to women’s
houses. Read in the light of Micah 2:1-2 (condemning those who “covet
fields, and seize them; and houses, and take them away”), the implication
is that wicked persons sometimes preyed upon women (whether widows
or daughters), unlawfully expropriating their fields and houses. It appears
that Jewish women continued to inherit houses in New Testament times,
and such houses continued to be preyed upon by the unscrupulous.
Reportedly Jesus warned his hearers: “Beware of the scribes, who . . .
devour widow’s houses” (Mk 12:38-40; Lk. 20:46-47). Thus it appears that
God’s compassion, which called for just and compassionate treatment of
the poor, orphans, and widows (Exod. 22:21-27), also came to expression
in customary law or practice, whereby widows inherited their husband’s
property. These biblical texts, which indicate that widows inherited their
husbands’ real property, accord with a number of ancient Near Eastern
laws and reported decisions.49
For example, the Code of Hammurabi, sections 171–174, provided
that the bridegroom’s gift to his bride would be used to support her and
their children if the husband predeceased her, and that if he had not so
provided for her, she was to be assigned a son’s share in the deceased’s
estate.50 There are no explicit biblical counterparts to these arrange-
ments. However, it is entirely conceivable that common or “uncodified
civil law” provided that a widow would inherit from her husband. Such
law need not have been contrary to the law of intestate succession in
Numbers chapter 27. That law may well have been meant to apply
only if—as may generally have been the case—the son’s mother had

47
See also The Teaching of Amenope, 6:1-6, translated in Thomas, Documents, p. 179.
The Talmud later assumes that a husband inherits land from his wife. Shmuel Safrai,
“Sabbatical Law and Jubilee,” Encyclopedia Judaica 14 ( Jerusalem: Keter Publ. House,
1972), p. 581. Judges 17:1-4 indicates that the mother of a certain Micah, who may have
been a widow, was a person of some wealth, which she may have inherited from her
husband. It is not clear whether she lived in her own house, or in her son’s house.
48
Other texts also warn against moving landmarks or property markers: Deut. 19:14;
Prov. 22:28, and 23:10.
49
See, e.g., James B. Pritchard, The Ancient Near East (hereinafter, ANE) (Princeton Univ.
Press, 1969), pp. 545–46; Muffs, Studies, pp. 33–34, n. 3; Eryl W. Davies, “Inheritance
Rights and the Hebrew Levirate Marriage,” VT 31 (1981) 138. Widows did not fare so
well in post-biblical Jewish law. See Grunfeld, Jewish Law, pp. 10–16.
50
Burrows, Basis, pp. 44–48; de Vaux, Ancient Israel, p. 54. As to Egyptian law c. 1100 B.C.E.,
see Fensham, “Widow, Orphan and the Poor,” pp. 131–33; Van Seters, “Problem of
Childlessness,” pp. 405–06.
40 Justice and Compassion in Biblical Law

predeceased her husband.51 At all events, the biblical widow’s interests


were at least indirectly protected under the law or practice of levirate
marriage.52

2. Inheritance and Levirate Marriage


The law of levirate marriage in Deuteronomy 25:5-10 focuses attention
on perpetuating a sonless deceased “brother’s name in Israel,” that is,
building up a deceased “brother’s house” by providing him a “son” (Deut.
25:7, 9). This law does not refer explicitly to property or inheritance;
however, it is generally agreed that one of its functions was to assure
retention of ancestral property within the family or clan.53 The story of
Judah and Tamar emphasizes the surviving brother’s responsibility to
“raise up offspring” for the deceased (Gen. 38:8), but likewise is silent on
the subject of property and inheritance.54 Westbrook argues persuasively
that both Genesis 38 and Deuteronomy 25:5 nevertheless do relate to the
inheritance of property.55 He also observes that in both texts, the broth-
ers to whom the law applied had lived together in an as yet undivided
household.56 Likewise, in the story of Ruth, the family property may have
been, as yet, an undivided inheritance.
In the story of Ruth the property of the deceased Elimelech becomes
a central topic in the negotiations between Boaz and the nearest
kinsman. Scholarship is divided as to whether levirate marriage is a

51
See Leggett, Levirate and Goel, pp. 216–17 and nn. 24 & 25. It may be more than merely
coincidental that no biblical traditions report that sons or daughters inherited their
father’s property while his widow was still alive.
52
Thus also Davies, “Inheritance Rights,” pp. 257–68.
53
Baruch A. Levine, Leviticus, JPS Torch Commentary (Philadelphia: Jewish Publication
Soc., 1989), p. 254; de Vaux, Ancient Israel, p. 38. See particularly the Thompsons’ study
of “the name,” in “Legal Problems,” pp. 84–88.
54
The story of Judah and Tamar does not say whether one of the twins inherited (as under
the law of primogeniture) or whether both were eligible to do so. Nor is birthright men-
tioned here. The account of the twins’ birth implies that which was born first may have
been of some consequence: the midwife carefully ties a scarlet thread around the first
hand to present. Deuteronomy 25:6 seems to say that only the “first son” born under
levirate marriage would succeed to the name of the deceased. But it is unclear which
twin was actually counted as first-born. Both sons were counted as sons of Judah (Num.
26:19-22). There are no other instances where more than one son was born under
levirate marriage.
55
He urges, for example, that Onan hoped to gain his later brother’s inheritance by
“marrying” Tamar, but avoiding effective intercourse with her, thus leaving no heirs to
inherit in his brother’s name. “Redemption of Land,” pp. 374–75, n. 36; “Law of the
Biblical Levirate,” p. 73.
56
Westbrook, Property and the Family, pp. 138, 140–41.
Transfer of Property by Inheritance and Bequest 41

factor in this book; we shall assume that it is, without presuming to


resolve the issue.
Naomi evidently had inherited Elimelech’s land (Ruth 4:3). She had
no surviving sons and was now proposing to sell the property. Elimelech’s
nearest kinsman (also known as the go’el) evidently had the opportunity,
if not also obligation, to “redeem” the land “in order to restore the name
of the dead to his inheritance” (Ruth 4:4-6, 10 RSV). According to Boaz,
the widow of the deceased and the land were a package deal: in order to
buy the land, the kinsman would have to marry the widow57—but Boaz
did not specify which widow (Ruth 4:5). The next of kin seems to have
acknowledged that redeeming the land and marrying “the widow” went
together, but declined to exercise his option lest doing so “damage” or
“impair” his own inheritance (Ruth 4:6).
Evidently the son (or sons) born to the widow of the deceased under
levirate marriage would inherit the property “redeemed” by the kins-
man’s purchase.58 It is unclear, however, how the nearer kinsman would
have damaged or impaired his inheritance by marrying Ruth.59 The
kinsman-redeemer would have had to pay a fair price for the property;
and he would have had to maintain a wife and perhaps a son. It is not
clear whether he also would have been obliged to leave to the son by
levirate marriage a portion of his own estate that otherwise would have
passed to any other progeny he may have had. Professor David Daube
insisted that any son by the prospective levirate marriage would have
obtained Elimelech’s patrimony, but nothing “from his physical beget-
ter.”60 The NOAB-RSV annotator explains that the go’el backed out “because
to raise up a son in the name of another would confuse the whole ques-
tion of the inheritance of the estate.”61 Commenting on Deuteronomy
25:5-10, Dale Patrick suggests, “One reason the brother might not be
willing to impregnate his brother’s wife is that he and his children are in
line for inheriting the deceased man’s estate (according to Num. 27:9)”.62
But in the story of Ruth there is no suggestion that either the go’el or Boaz

57
See generally, Leggett, Levirate and Goel, pp. 228–45. But see D. R. G. Beattie, “Kethibh
and Qere in Ruth IV 5,” VT 21 (1971) 490–94.
58
See von Rad, Genesis, p. 353: “The son begotten by the brother is then considered the
son and heir of the deceased man, ‘that his name may not be blotted out of Israel’
(Deut. 25:6).” See also Leggett, Levirate and Goel, pp. 247–48.
59
“No passage in this work has produced more headaches.” Daube, Ancient Law, pp. 40–41.
60
Id., p. 40. But see the Thompsons, “Legal Problems,” p. 98; and Davies, “Kethibh,”
pp. 231, 234.
61
NOAB-RSV, Old Testament sect., p. 328; cf. NOAB-NRSV, Hebrew Scriptures sect.,
p. 396.
62
Dale Patrick, Old Testament Law (Atlanta: John Knox Press, 1985), p. 138.
42 Justice and Compassion in Biblical Law

stood to inherit the property.63 Rather, title evidently had passed to Naomi,
if not also to Ruth.64 Daube’s bold and ingenious proposal is that Boaz
intentionally misled the nearer kinsman into believing that if he bought
the property he would also be obliged to marry the widow Naomi!65 Daube
urged that both Boaz and the go’el knew Naomi was too old to have
children; if the nearer kinsman married her he risked dying without
having heirs, thereby destroying his inheritance.66
Levirate marriage, if that is what we find in Ruth, entailed not only
the kinsman’s duty to perpetuate the name of the deceased, but also
the duty to keep the deceased’s property within the ancestral, patriarchal
family by redeeming it, i.e., purchasing it from the widow. Otherwise,
apparently, this land would remain the widow’s, at least temporarily,
or, if she remarried outside the family, would pass to some other

63
Thus also Burrows, “Marriage,” p. 446. Under terms of Numbers 27, the kinsman might
be expected to have inherited the property. But the text of Ruth insists that Naomi owned
the parcel of land. What would have happened to it if she married again? In fact, the
kinsman did not inherit it because Boaz redeemed it (by purchase from Naomi) in con-
nection with his marriage to Ruth, and, presumably, Obed eventually inherited it. Thus
the kinsman was not in a position simply to assume that he and his children
(if any—none are mentioned in Ruth) would inherit from Elimelech. Clearly Naomi’s
property interest in the parcel had priority over the kinsman’s—notwithstanding the
provisions of Num. 27. Exactly what the nature of her interest was, and how she had
acquired it, are not, unfortunately, so certain.
64
See above, text accompanying notes 35–43.
65
Daube, Ancient Law, pp. 40–41. Compare Eryl W. Davies, “Ruth IV 5 and the Duties of
the go’el,” VT 33 (1983) 231–34. Davies suggests that the kinsman understood that he
was to marry Naomi and, because she was past child-bearing, expected to acquire her
property as his own; but then backed out on learning that the widow in question was
Ruth, since she might bear a son who would claim not only the redeemed property but
also a share of the go’el’s inheritance.
66
Daube, Ancient Law, pp. 37–43. But how would those circumstances destroy the go’el’s
inheritance? Daube’s proposal assumes both that the nearer kinsman had no wife or
children at the time, and that monogamy was then the standard societal norm. But it
seems unlikely that the go’el would have had no other heirs. Compare Campbell, Ruth,
p. 156: “[S]urely [the kinsman] is already married and has a family of his own.”
Westbrook notes that since Naomi was beyond the age of child-bearing, “the land
purchased would pass to the redeemer’s sons as part of his inheritance.” “Redemption
of Land,” p. 374. But that would be a reason for the kinsman to welcome marriage with
Naomi! Westbrook reads “widow of the dead” to mean Ruth, and concludes that the
kinsman backed out simply because he would have had to pay money for land that
would not become part of his patrimony. Id., at pp. 374–75. That is, the kinsman’s
offspring by levirate marriage to Ruth would have inherited the property he had
purchased from Naomi. This suggestion is persuasive. But that outcome would not have
“destroyed” the kinsman’s inheritance (4:6). For another ingenious theory, see Sasson,
Ruth, pp. 136–40. Sasson suggests that as redeemer, the kinsman could have become
liable to support the impoverished Naomi and Ruth’s son (if any) who would ultimately
inherit the parcel; moreover, under the laws of redemption in Lev. 25, the kinsman
could have had to repurchase the parcel of land as often as these poor relations had
occasion to sell it! Sasson denies that levirate marriage is a factor in the story of Ruth.
Transfer of Property by Inheritance and Bequest 43

family.67 Concern here is analogous to that expressed in Numbers 36


with respect to heiresses marrying outside the tribe. According to the
story of Ruth, the nearest kinsman had first refusal or option both as to
marrying the widow and redeeming the property. Under these circum-
stances, we may see another way the nearest kinsman could have
“impaired” his inheritance by marrying Naomi. She was past the age of
childbearing (Ruth 1:12-13); if he had no children and predeceased her,
as his widow she could have inherited his entire property, or at least a life
estate in it.
Another feature of levirate marriage may be seen in the Book of Ruth.
The story, as told, not only evidences or legitimates extending both the
duty of levirate marriage and the duty of redeeming the decedent’s
property to the nearest kinsman.68 The story also, and perhaps more sig-
nificantly, attests to and legitimates the practice of substituting for a
widow who is beyond child-bearing years, her fertile, widowed daughter-
in-law when the older widow’s sons are now deceased and without heirs.69
As Daube rightly pointed out, the first widow in line for levirate marriage
in Ruth is Naomi.70 It was, after all, Naomi who programmed Ruth’s
marriage to Boaz (ch. 3). As the story unfolds, Ruth is the biological
mother of Obed, the son by levirate marriage, but Obed is hailed as
Naomi’s go’el (Ruth 4:15), and is presented, in effect, as the surrogate
son of Naomi (4:17) and, therefore, implicitly, of Elimelech.71

67
Thus also Beattie, “Ruth as Evidence,”, pp. 251–67. Beattie concludes that widows could
and did inherit their husbands’ property. However, he does not see Ruth ch. 4 as instanc-
ing levirate marriage. Instead, he sees the scene as “a simple case of the second marriage
to a childless widow who has inherited her husband’s estate and whose children, by her
second marriage, will therefore be heirs, through her, to her first husband.” Id., at
p. 265, emphasis added. The kinsman backed off, Beattie suggests, because Boaz had
announced his intent to marry Ruth: under these circumstances, if the kinsman
redeemed the property, he would be doing so solely for the benefit of any son(s) born
to Boaz and Ruth. Id. at p. 266.
68
Thus Leggett, Levirate and Goel, p. 245. It is possible, however, that Deuteronomy
25:5-10 was meant to limit the obligation to the brother-in-law. Thus de Vaux, Ancient
Israel, p. 22.
69
Thus also E. Lipinski, “Le Mariage de Ruth,” VT 26 (1976) 127. It should not be over-
looked that the narrative also implies that the duty of the levirate includes marrying a
foreign (or at least a Moabitess) widow.
70
Daube, Ancient Law, p. 39. See Ruth 1:12, where Naomi speaks, albeit hypothetically, of
having a husband, presumably a kinsman of Elimelech, and having sons whom the
younger widows could marry if they waited long enough.
71
Compare Westbrook, “Law of the Biblical Levirate,” p. 77, n. 43. Here he asserts that
Boaz “does not raise up Elimelech’s name . . . only Mahlon’s.” It is not clear, however,
that “the dead man” (Ruth 4:5, 10) alludes to Mahlon rather than Elimelech.
44 Justice and Compassion in Biblical Law

3. Redemption, Jubilee Laws, and Inheritance


The idea that kinsmen have an obligation to “redeem” property in order
to keep the inheritance in the family also appears prominently along
with the laws pertaining to the Jubilee year.72 The main legal provisions
are set out in Leviticus chapter 25. Here the underlying concern is not
preserving tribal inheritances, but rather preserving the land inheri-
tances of each Israelite family or clan. To implement this policy, the
Jubilee laws provided that farmland might not be sold “in perpetuity,”
or rather, “not beyond reclaim.”73 The theological premise is the under-
standing that the land ultimately belonged to YHWH, and that his
people were only “strangers and guests” (Lev. 25:23).74 Thus land, at any
rate farmland, was not a commodity to be bought and sold.75
Under the Jubilees laws, Israelites might, in effect, lease or rent their
farmland to others.76 But they not only could, they were obliged to retake
possession of it every fiftieth year: “In this year of jubilee each of your
shall return to his property.”77 Implicitly, if the person who owned the
land earlier had died, his heir or heirs would retake possession on his
behalf. (It seems unlikely that the drafters of the Jubilee year law expected
all property owners to live another 50 years, let alone, forever.). Although
deeds for land sales were signed and witnessed, so far as we know, there
was no provision for recording property transactions (compare Jer.
32:11-14); returning to the land evidently had the effect of reasserting
the property owner’s title to it. After so returning, presumably, the owner
could “sell” or lease it again, either to the same lessee or to someone else
for the next 49 years. Land “sales” or leases could be entered into at any
time within the 49-year cycle, but the “price” or rent was to take into
account the number of years—specifically, the number of annual crops—
since the last Jubilee year (Lev. 25:15-16).

72
See generally, David Daube, Studies in Biblical Law (New York: KTAV, 1969), pp. 43–45;
Westbrook, “Jubilee Laws.”
73
See Levine, Leviticus, pp. 270–74. Houses within a walled city, however, could be sold
in perpetuity (Lev. 25:29) unless the cities in question were “cities of the Levites” (25:
32-33). But houses within unwalled villages, like farmland, could not be sold in perpetu-
ity (Lev. 25:21). Property not subject to sale in perpetuity supposedly would revert to its
original owner in the Jubilee year.
74
See generally, John Hart, The Spirit of the Earth, A Theology of the Land (Paulist Press,
1984), pp. 69–71 (translation suggested by Hart). Cf. the NRSV translation: “aliens and
tenants.”
75
Westbrook, “Redemption of Land,” pp. 367–68.
76
Westbrook, “Jubilee Laws,” p. 221; Levine, Leviticus, pp. 173, 273.
77
Leviticus 25:13 (RSV); see also Lev. 25:10.
Transfer of Property by Inheritance and Bequest 45

If a man became poor and had to “sell” (or lease) part of his property,
his brother or next-of-kin was obliged to “redeem” what had been sold,
evidently lest it pass out of the family in the interval before the next
Jubilee year.78 But if there was no one to redeem it, and the owner him-
self could not afford to buy it back in the meantime, the land would,
nevertheless, revert to the owner (or, presumably, his heirs) in the year
of Jubilee (Lev. 25:25-28).
Curiously, none of the redemption or Jubilee laws in Leviticus 25 refers
expressly to the inheritance of land. It has often been pointed out that
there is no evidence that the Jubilee year law provisions were ever carried
out as such. Unlike levirate marriage, Jubilee laws do not even appear in
the background of any biblical narrative except, perhaps, Ruth. But some
other texts do take cognizance of the Jubilee year, and some of these
explicitly relate it to the matter of inheritance.
Various laws in Leviticus 27:16-25, 28 distinguish between land
a person possessed by inheritance and land one has “bought which is not
a part of his possession by inheritance” (Lev. 27:22 RSV). A man may
“redeem” (or repurchase) inherited land which he has vowed or pledged
to Yahweh any time up to the year of Jubilee.79 But if he failed to redeem
it by the year of Jubilee, it would not revert to him, but instead would
become “holy to Yahweh”80 and “the priest”81 would take possession of it.
But if a man dedicated a field which he had bought (or leased) which
was not his by inheritance, such land would not become “holy to
Yahweh” in the Jubilee year. Instead, “[i]n the year of Jubilee the field
shall return to him from whom it was bought, to whom the land belongs
as a possession by inheritance” (Lev. 27:24 RSV). In other words, a man
could not dedicate to Yahweh land that was not his by inheritance but

78
Westbrook urges that the right of redemption arose only when the seller had
become impoverished and sold to a third party at less than normal price. See generally,
“Redemption of Land,” p. 368, and “Price Factor,” p. 97.
79
A man who redeemed such land was to add a fifth of its value to the redemption price
(Lev. 27:19).
80
Leviticus 27:20 also provides that inherited land which a man has “sold” or leased to
someone else, if not redeemed in the meantime, likewise would become holy to Yahweh
in the Jubilee year. The Lessee’s (or lease-holder’s) interest would not be affected how-
ever, since the lessor (or original owner) otherwise would have retaken possession in the
Jubilee year, thereby extinguishing the lessee’s interest anyway.
81
Presumably “the priest” referred to throughout Leviticus ch. 27 is the priest who
happened to handle the particular case on behalf of the Jerusalem hierarchy. Similarly,
modern lawyers refer, e.g., to “the magistrate” or “the judge,” meaning the one who
happens to hear a particular case.
46 Justice and Compassion in Biblical Law

belonged to someone else. Only the owner of inherited land could


dedicate it to Yahweh.82
Numbers 36:1-4 provides another footnote to the situation of the
famous daughters of Zelophehad, this time in connection with the year
of Jubilee. Here we see what could have happened if Moses (or YHWH)
had not provided that heiresses might marry only within their ancestral
tribe. Absent such provision, the text implies, if these heiresses had
married husbands from other tribes, their land would have been trans-
ferred permanently to their husbands’ tribes in the year of Jubilee
(Num. 36:3-4). It is unclear, however, how or why the Jubilee law as we
know it from Leviticus 25 would have required that result or even been
relevant to the situation.83
A final series of laws of inheritance relating to the Jubilee year appears
in Ezekiel 46:16-18, in the somewhat curious context of “ordinances” or
“laws” of the Temple revealed not to Moses, but to Ezekiel (Ezek. 44:
5–46:18). These laws concern the power of “the prince” to distribute
property from inheritances—a subject strangely unrelated to Temple
ordinances or laws. “The prince” may represent the King who was
expected to rule Israel righteously in the ideal world after the exile or in
the messianic age,84 or may, perhaps, stand for post-exilic officials who
might have been tempted to exploit their subjects.85 These laws contain
two main provisions. The first allows “the prince” to make gifts or bequests
out of his own inheritance to his sons, since the sons would eventually
take by inheritance anyway. But any gifts the prince gives to his servants
from his inheritance are to revert to the prince (or, presumably, his heirs)
in “the year of liberty” (Ezek. 46:16-17). “Gifts” here may include not only
real property, but any kind of property subject to inheritance. The second
provision bars the prince from taking the inheritances of others:

82
Leviticus 27:28 provides that when a man has “devoted” an inherited field to Yahweh, it
shall neither be sold nor be redeemed. Perhaps “devoted” property is that which has
already been given to YHWH. Presumably a field so “devoted” would not be destroyed,
unlike the fate of man and beast “devoted” under the old h.erem tradition. See Joshua
6:17, 21; Lev. 27:29. Perhaps “the priest” would take possession of the devoted field as in
the case of dedicated land released in the Jubilee year (Lev. 27:16-21).
83
If husbands were entitled to heiresses’ inheritances as suggested in the book of Tobit
(Tob. 6:11 and 14:13), such inheritances would pass out of the tribe if the husbands
belonged to other tribes apart from the operation of the law of the Jubilee year.
See Numbers 36:3. Westbrook suggests that Num. 36:4 may have been a “mistaken gloss.”
Westbrook, “Jubilee Laws,” p. 210. Compare Norman H. Snaith, “The Daughters of
Zelophehad,” VT 16 (1966) 127.
84
See Ezekiel 45:7-9; cf. Isa. 11:1-9.
85
For example, the “officials and nobles” against whom Nehemiah contended and some
of the earlier post-exilic governors characterized in Nehemiah 5:1-15.
Transfer of Property by Inheritance and Bequest 47

The prince shall not take any of the inheritance of the people, thrust-
ing them out of their property; he shall give his sons their inheritance
out of his own property, so that none of my people shall be dispossessed
of his property. (Ezek. 46:18 RSV)

Here the peoples’ inheritance appears to designate their land or real


property—from which they might otherwise be “thrust out” by an unduly
acquisitive prince or king. Perhaps this law was added in Ezekiel precisely
because the Mosaic law contained no provision forbidding such conduct.86
Earlier kings and others in positions of power had not always respected
the inheritances of their subjects.87 Ezekiel (or a later editor) evidently
wished to make sure that subsequent rulers, including, perhaps, early
post-exilic functionaries, would know that they were not permitted to
expropriate their subjects’ inheritances.

4. The Birthright
The elusive biblical “birthright” tradition resembles intestate succession
in that it seems to have affected inheritance from one generation to
another by operation of law. Less is known about the biblical birthright
than annotators and commentators sometimes claim. Harper’s Bible
Dictionary, for example, states flatly: “Biblical legislation . . . established
the right of the firstborn to inherit a double portion of his father’s pos-
sessions, i.e., twice as much as that received by each of his brothers.”88

86
See, however, the prohibition against coveting one’s neighbor’s house in Exod. 20:17 and
Deut. 5:21, and that against coveting his field in the latter text. Westbrook notes that
because of dating problems, we do not know “whether Ezekiel was inspired by Leviticus,
or Leviticus by Ezekiel,” or both by a common ideal. Westbrook, “Jubilee Laws,” p. 226.
87
1 Kgs 21:1-16; Isa. 5:8; Mic. 2:1-2. See generally, B. Davie Napier, “Inheritance and the
Problem of Adjacency: An Essay on 1 Kings 21,” Interpretation: A Journal of Bible and
Theology 30 (1976) 3–11. Weingreen argues persuasively that the Naboth story in
1 Kings 21, and also Num. 27:3-4, evidence the existence and operation of a law whereby
property that otherwise would pass to heirs was confiscated by the sovereign if the owner
had committed treason. “Case of the Daughters,” pp. 321–22. Compare the Parable of
the Wicked Tenants, Mt. 21:33-39 = Mk 12:1-8 = Lk. 20:9-15, where the tenants try to
obtain the heir’s “inheritance” by killing the heir.
88
HBD, p. 422. Strangely, many commentators assume that Deuteronomy 21:15-17 requires
that the older or oldest son receive a double share of the inheritance in circumstances
where there is no question as to a loved and unloved wife. See, e.g., James Kent,
Commentaries on American Law, 14th edn., John M. Gould, ed., (Boston: Little, Brown &
Co. 1896), pp. 376–77; James G. Frazer, Folklore in the Old Testament (New York: Macmillan
& Co., 1919), p. 430, n. 1; C. J. Mullo Weir, “Nuzi,” in D. Winton Thomas, ed., Archeology
and Old Testament Study (Oxford: Clarendon, 1967) p. 76; Richardson, ed., Theological
Word Book, p. 83; NWDB, p. 376; IDB, vol. 2, p. 702.
48 Justice and Compassion in Biblical Law

The commentator cites as authority the locus classicus, Deuteronomy


21:15-17. But this text refers only to what must be done in the following
special situation:

If a man has two wives, the one loved and the other disliked, and they
have borne him children, both the loved and the disliked, and if the
first-born son is hers that is disliked, then on the day when he assigns
his possessions as an inheritance to his sons, he may not treat the son of
the loved as the first-born in preference to the son of the disliked, who
is the first-born, but he shall acknowledge the first-born, the son of the
disliked, by giving him a double portion of all that he has, for he is the
first issue of his strength; and the right of the first-born is his. (RSV)

There is no biblical legislation establishing the rights of the first-born.89


The law of intestate succession in Numbers chapter 27 is entirely silent as
to any special entitlements on the part of first-born sons or daughters. To
be sure, it may plausibly be inferred from Deuteronomy 21:15-17 that as a
matter of unwritten custom or tradition at one time or another, the first-
born son ordinarily received a double portion.90 It is odd that there are
no other biblical texts that illustrate or follow such a tradition.
Deuteronomy 21:16 refers to the day on which a man “assigns his
possessions as an inheritance to his sons.” This suggests a process very
much like testation, the making of a will. What Deuteronomy 21:15-17
says, in effect, is that a man may not ignore his obligation to provide his
first-born son with a double portion just because he dislikes that son’s
mother. Thus this law is somewhat similar in purpose to modern statutes
that prevent one spouse from “writing” the other “out of” his or her will

89
Nuzi evidence is ambiguous. Nashwi’s will (or “tablet of adoption”) provided that his
adopted son, Wullu, would share his estate equally with any of Nashwi’s own sons. Zike’s
will (or tablet of adoption) provided that a certain Shuriha-ilu would take a double share
if he (Shuriha-ilu) had a son of his own. ANET, pp. 219–20. These texts illustrate ancient
wills, but do not appear relevant as to inheritance or birthright.
The only ancient Near Eastern texts apparently providing that the oldest son take two
portions of inherited land are Middle Assyrian Laws, tablet B, ANET, p. 185, and an old
Babylonian (Mari) judicial decision, ANE, p. 545.
90
Thus also Patrick, Old Testament Law, p. 129: “The ruling assumes the principle of primo-
geniture—that a man’s first-born male child receives a double portion of his inheritance.”
But see below, note 97 and accompanying text. See generally, Eryl W. Davies, “The Mean-
ing of pi senayim in Deuteronomy XX 17,” VT 36 (1986) 341–45. Calum M. Carmichael
suggests that the double portion provision in Deut. 21:15-17 may represent merely
“the lawgiver’s interpretation of what Jacob had done for Joseph in settling the prime
inheritance upon him” in Genesis 48 and 49. “Uncovering a Major Source of Mosaic
Law: the Evidence of Deuteronomy 21:15–22:5,” JBL 101 (1984) 506–508.
Transfer of Property by Inheritance and Bequest 49

by providing that the survivor may elect a “spousal share” in lieu of


taking under terms of the will.91
The idea that the first-born son is entitled to a larger share of his
father’s inheritance is supported by the ancient Hittite story of Appu and
his twin sons.92 After Appu and his wife die, the twins set out to divide up
the family property. The older justifies helping himself to the “sleekest
cow” by arguing, “Am I not the elder? And what says the law? ‘The larger
portion to the eldest, the smaller to the others.’”93 The extant portions of
Hittite law codes, however, do not refer to inheritance,94 but it may well
be that the biblical birthright tradition was influenced by earlier Hittite
or other ancient Near Eastern law or custom.95
It is remarkable, however, that no other biblical traditions indicate that
the first-born son had the right to a double or even enlarged portion of
the inheritance.96 The law of intestate succession in Numbers chapter 27
makes no reference to double portions. Nevertheless, annotators typi-
cally assume or assert that the birthright Jacob purchased (or extorted)
from his brother, Esau, consisted of “a double share of the inheritance.”97
The biblical account of that transaction, Genesis 25:29-34, however, gives

91
Similarly, under Islamic law, a man could not disinherit his wife—or anyone else. All was
spelled out. See above, note 12.
92
Theodor H. Gaster, The Oldest Stories in the WorId (Boston: Beacon Press, 1958),
pp. 159–171.
93
Id. at p. 163; see also id. at p. 164: “The law says clearly that the eldest is to have the
most.”
94
Id. at p. 169.
95
The HBD reports that several other ancient Near Eastern cultures provided for “prefer-
ential treatment of the eldest son,” but that the codes of Lipit-Ishtar and Hammurabi
required that all male heirs inherit equal shares. HBD, pp. 134–35. See Lipit-Ishtar Law
Code, sect. 24, ANET, p. 160; Code of Hammurabi, sect. 170, in Thomas, Documents,
p. 33, quoted above, note 14. The Babylonian Theodicy, vv. 245–264, however, suggests
that the first-born may have enjoyed special favor or status. Thomas, Documents, p. 101.
See generally, Isaac Mendelsohn, “On the Preferential Status of the Eldest Son,” BASOR
156 (1959) 38–40.
96
Arguably, Jacob gave Joseph a double share by adopting or otherwise designating
the latter’s two sons as recipients of equal shares with Joseph’s brothers (Gen. 48:1-6).
Nothing is said here, however, about birthright or transfer of birthright. The arrange-
ment is more in the nature of a bequest. See below, text accompanying notes 112 & 113.
It may well be, however, that this scene was meant to explain how it came about that
Ephraim and Manasseh enjoyed full tribal status, and provides no information as to
transfer of property by inheritance or bequest. Though Joseph was Rachel’s oldest son,
he was not Jacob’s oldest son.
97
E.g., NOAB-RSV, Old Testament sect., p. 31; NOAB-NRSV, Hebrew Bible Sect., p. 46.
Other than in the situation of Levirate marriage (Deut. 25:6), no biblical text suggests
that the first-born son alone inherited when there were other sons. Frazer makes a
plausible case for the idea that traces of ultimogeniture, or inheritance by the youngest
son, can be found in biblical tradition. Folk-Lore, pp. 429–33. Aside from Gen. 25:29-31,
however, none of the texts he discusses involve inheritance of property. In Genesis
50 Justice and Compassion in Biblical Law

no clue at all as to the substantive content of a birthright.98 The story


does demonstrate that whatever benefits the birthright afforded, it was
considered alienable, that is, could be sold, at least between sons prior
to the father’s demise.99 If we may credit the Chronicler on this point,
Reuben forfeited his birthright because he had engaged in sexual rela-
tions with his father’s concubine or wife, Billah.100 Forfeiture of Reuben’s
birthright is not reported in Genesis traditions, however.101 In Chronicles,
the chief consequence of this forfeiture was that Reuben was “not enrolled
in the genealogy according to his birthright” (l Chron. 5:1). So we find
no further evidence here as to whether birthright meant a double or
enlarged inheritance.102
Conceivably, birthright tradition forms part of the background for the
incident described in Luke 12:13: “One of the multitude said to [Jesus],
‘Teacher, bid my brother divide the inheritance with me’” (RSV). The
diligent NOAB annotator could not refrain from adding a footnote citing
Deuteronomy 21:17 for the proposition that “the elder received double
the younger’s share.”103 There is no hint in the text, however, that the
older brother was claiming a double portion. Nor is there any reference
to birthright here, so we cannot be certain that it was an issue in the
dispute between the brothers. Again, the birthright tradition may be
implicated in the Parable of the Prodigal Son (Lk. 15:11-32). The younger
son asked his father to give him “the share of the property” he would
otherwise eventually inherit. The parable then says that the father
“divided his property between them” (Lk. 15:12). Here, too, it is not

25:29-31, it is clearly implied that the older son normally would have enjoyed the
birthright.
98
So also von Rad, Genesis, p. 262, “[W]hat is to be understood by the birthright is not suf-
ficiently clear from the narrative.”
99
Thus also HBD, p. 135. See generally, Reuben Ahroni, “Why Did Esau Spurn the
Birthright?,” Judaism 29 (1980) 323–31. The NOAB annotator inexplicably cites
Gen. 25:29-34 as authority for the proposition, “In antiquity it was believed that the right
of the first-born was inalienable.” NOAB, p. 242; NOAB-NRSV, p. 245.
100
1 Chron. 5:1.
101
See Gen. 35:22 and 49:3. The latter text reports that Jacob declared that Reuben would
lose his “pre-eminence.” Westbrook suggests that such pre-eminence included “the right
to administer the paternal estate while still undivided, which would normally have been
assigned to the first-born.” Westbrook, Property and the Family, p. 136. Pre-eminence is
also associated with birthright or the status of the first-born in Gen. 27:36-37 and 43:33.
On the significance of Reuben’s offense, see Judah Goldin, “The Youngest Son,” JBL 96
(1977) 37–38. Goldin concludes that Reuben thereby intended to proclaim that he had
succeeded his father, just as Absalom later did when he publicly took over his father’s
concubines (See 2 Sam. 16:20-22).
102
See generally, Stanley Gervitz, “The Reprimand of Reuben,” JNES 30 (1971) 87–98.
103
NOAB-RSV, pp. 1263–64; See also NOAB-NRSV, New Testament sect., p. 121.
Transfer of Property by Inheritance and Bequest 51

clear that the birthright tradition is involved, and there is no indication


that the older brother claimed or was entitled to a double portion. The
parable does suggest that a son might ask for an advance on his eventual
anticipated inheritance, but whether this reflects actual practice or
custom within the biblical period we cannot say; it may only be a fictive
element within the parable.
In summary, the notion that the biblical birthright meant that the
older or oldest son was entitled to a double portion of his father’s inher-
itance depends entirely upon Deuteronomy 21:15-17. That text does not
use the expression “birthright,” nor does it require that the older son
receive a double portion of the inheritance under circumstances other
than the peculiar one where the father loves one wife and dislikes the
other.104 No other biblical text intimates that the first-born son was
entitled to a double share of his father’s inheritance.105 Nor is there any
indication that primogeniture was practiced in biblical times.106

C. Wills or Bequests, and Inter-vivos Gifts

What distinguishes bequests or gifts from inheritance through intestate


succession is that the former require some affirmative act by the testator
or donor in order to make the gift effective. Necessarily, such act can be
taken only during the lifetime of the testator or donor.
No biblical text indicates that anyone in the biblical community ever
drafted and signed a will or authorized an executor to transfer property
to beneficiaries upon the testator’s demise. In his classic study of ancient

104
Here again, it may be that biblical customary law derived from other Near Eastern cune-
iform law. To what extent the latter required that the first-born son receive a double
portion, however, is uncertain. See Section B.4 of this Chapter.
105
Another aspect of birthright tradition or custom may be better attested, namely, the
oldest brother’s seniority and leadership status within the family. See, e.g., Gen. 43:33,
1 Chron. 26:10, 2 Chron. 21:3, and discussion of these and several other texts in
Gordon, “Fratriarchy,” pp. 223–31. Because we are concerned only with inheritance of
property, this aspect of biblical birthright tradition is not examined further here.
106
But see above, note 97, as to Deuteronomy 25:6. Henry Sumner Maine insisted,
properly, that birthright should not be confused with primogeniture. He defined the
latter as “the exclusive succession of a single son” to his father’s property. Lectures on the
Early History of Institutions, 7th edn. (1914, Port Washington, NY: Kennikat Press reprint,
1966), p. 198. Nevertheless, interpreters occasionally use the terms “primogeniture”
and “birthright” interchangeably. E.g., Ahroni, “Why Did Esau Spurn,” pp. 323–25.
Without citing supporting evidence, de Vaux asserts, “It is probable that when land was
inherited it was not shared like other property but passed to the eldest son or remained
undivided.” Ancient Israel, p. 166.
52 Justice and Compassion in Biblical Law

law, Henry Sumner Maine asserted that biblical Israelites or Jews had not
developed the institution of testation.107 There are no laws governing testa-
mentary succession in the Bible.108 Nevertheless, several texts do suggest
that people in the biblical period occasionally did make some kind of
testamentary disposition of their property. Sometimes this disposition was
made shortly before the testator’s death, apparently in the form of an oral
deathbed will. In other instances, such gifts appear to have been made
prior to the donor’s imminent expectation of death. Some of these gifts,
though arguably testamentary in character, could also be described as
inter-vivos gifts, that is, as gratuitous transfers of property between living
persons.

1. Gifts or Bequests in Prospect of the Testator’s or


Donor’s Death
Deuteronomy 21:15-16 refers to “the day when [a man] assigns his
possessions as an inheritance to his sons” (RSV). We may infer that this
assignment was equivalent to a person’s “putting his affairs in order,” and
more specifically, determining what property would go to which son.109
This assignment need not necessarily have taken place in anticipation of
imminent demise. It is likely that Genesis 24:36 and 25:5-6 reflect this
kind of testamentary practice. In both texts it is said that Abraham gave
Isaac all that he had.110 The latter adds that Abraham also had given gifts
to the sons of his concubines. Here what might be called the “bequest” is
referred to as if it already had been conveyed to the beneficiaries.111

107
Henry Sumner Maine, Ancient Law, 10th edn. (1920, Buffalo: Wm. S. Hein & Co. reprint,
1983), p. 209. Thus also Emanuel Rackman, “A Jewish Philosophy of Property: Rabbinic
Insights on Intestate Succession,” Jewish Quarterly Review 67 (1976) 65–89. But see Isaac
Herzog, The Main Institutions of Jewish Law, vol. 1 (London: Socino Press, 1965),
pp. 296–98. Maine, of course, would not have known the vast body of recently
recovered, ancient Near Eastern materials which show that the institution of testation
was well established in many of these cultures. See generally, Szubin and Porten,
“Testamentary Succession,” pp. 35–46.
108
Solomon Zeitlin, “Testamentary Succession: A Study in Tannaitic Jurisprudence,” in
Abraham A. Neuman and Solomon Zeitlin, eds., Seventy-Fifth Anniversary Volume
(Philadelphia: Jewish Quarterly Review, 1967), p. 574. See also the translation of
Deut. 21:16 in the NOAB-NRSV, Hebrew Bible Sect., p. 279: “. . . on the day when he wills
his possessions to his sons . . .”
109
De Vaux suggests that 2 Samuel 17:23 and 2 Kings 20:1 refer to situations where “a father
. . . gave verbal instructions about the distribution of his property.” Ancient Israel, p. 53.
110
Presumably this estate included, inter al., the cave of Machpelah. See Westbrook,
“Cave of Machpelah,” cited above, note 3.
111
See Thomas E. Atkinson, The Law of Wills (St. Paul: West Publishing Co., 1953), p. 7,
n. 11. Atkinson observes that Sennacherib’s will, executed c. 681 B.C., 1ikewise used the
Transfer of Property by Inheritance and Bequest 53

Technically, most if not all of the biblical “bequests” were inter-vivos gifts.
But since most of these conveyances occurred while the donor was in
advanced years and were made for the purpose of passing his property to
heirs, these gifts can accordingly be said to have functioned as bequests.
We see something very like a deathbed will in Genesis 48:21-22. Here,
after stating that he is about to die, Jacob tells Joseph, “I have given to
you rather than to your brothers one mountain slope which I took from
the hand of the Amorites with my sword and with my bow” (RSV).112
Jacob’s gift to Joseph of a double portion of his inheritance (Gen. 48:5-6)
likewise appears to be a bequest made in anticipation of the testator’s
death.113 Similarly, 2 Chronicles 21:2-3 reports that King Jehoshaphat
gave his sons “great gifts of silver, gold, and valuable possessions, together
with fortified cities in Judah,” evidently just before his death.114 Sirach
33:24 specifically commends the practice of deathbed distribution:
“At the time when you end the days of your life, in the hour of death, dis-
tribute your inheritance.”115 Nearby texts caution against making earlier
inter vivos gifts: e.g., “[D]o not give your property to another, in case you
change your mind and must ask for it [back]” (Sir. 33:20).
A number of testamentary gifts or bequests are described in the
pseudepigraphic literature.116 Jubilees 45:14-15 says that Jacob (Israel)
“gave to Joseph a double portion upon the land” (cf. Gen. 48:5-6), and
gave all his books and his father’s books to his son Levi, to pass on, in
turn, to their sons. In the Testament of Job, that ancient worthy tells his
children that he is dying, and proceeds to distribute his estate or “goods”
to his seven sons, except for three magical “sashes” or phylacteries, which
he gives, one each, to his three daughters (T. Job 45:1–50:3). Respond-
ing to the daughters’ complaint that these were of little value,
Job characterizes the sashes as “an inheritance better than that of your
seven brothers” (T. Job 46:4).117

formula, “I have given” rather than “I give.” Id.


112
Weir quotes a Nuzi text deathbed will whereby a dying father gives a female slave to one
of his sons as his wife. “Nuzi,” p. 76.
113
See Szubin and Porten, “Testamentary Succession,” p. 37. But see above, note 96.
114
Because the Chronicler reports Jehoshaphat’s death and burial before stating that he
gave his sons these gifts, it might be supposed that the sons received these gifts through
a testamentary instrument or will (1 Chron. 21:1-3). But it is equally likely that the
Chronicler merely meant to say that Jehoshaphat had given his sons these gifts prior to
his death.
115
De Vaux reads Sirach 14:13 similarly. Ancient Israel, p. 53.
116
The following citations in the text are all drawn from James H. Charlesworth, ed., The
Old Testament Pseudepigrapha, 2 vols. (New York: Doubleday, 1983, 1985).
117
See also Joseph and Aseneth 29:9 (11), which tells that after reigning as king in Egypt for
48 years, Joseph “gave the diadem” to Pharoah’s young son.
54 Justice and Compassion in Biblical Law

2. Inter-vivos Gifts to Eventual Heirs


Although as the biblical story is told, Job was an Edomite, not
an Israelite or Jew, it is arguable that the beliefs and practices
attributed to him and others in the book are more representative of bib-
lical than of Edomite tradition.118 Job 42:15-16 tells that Job gave inheri-
tances to both his sons and daughters, and then lived 140 more years.
It is unclear whether the story-teller meant to say that Job transferred all
his property to his children 140 years before his death, or that he gave
some property to them, retaining what he would need for his own
purposes, or that he made a testamentary disposition to the effect that
they would receive their inheritances after his death. The last possibility
is the least likely, since it is unreasonable to suppose that the reader
would expect Job’s children to have survived him.119 The former possibili-
ties are paralleled to some extent in the Parable of the Prodigal Son
(Lk. 15:11-32). There, the father gives the younger son in advance the
share of the inheritance he otherwise would receive at the father’s death.
After this son returns from his fling at riotous living, the older brother
points out that his profligate brother had “devoured” their father’s
property.120 That, of course, is no problem to the prodigal’s father, who
eagerly welcomes him back. Yet unless at the time he advanced the prodi-
gal his inheritance the father retained a portion of his estate for his own
use, the father (and also the prodigal) would now have to live on the
estate previously earmarked as the older brother’s inheritance (Compare
Sirach 33:20-22). Whether Job transferred all his property to his children

118
See, e.g., the orthodox wisdom theology represented by Job’s friends, the creation faith
represented in Job 38-39, and Job’s exemplification of the covenant ethic in Job 29:
11-17; 31:1-40. Dating and authorship of Job are uncertain, but its congruence with both
certain biblical and cuneiform traditions is beyond doubt. See Marvin Pope, Job, Anchor
Bible (Garden City: Doubleday, 1973), pp. XXXII–XLII.
119
If Job had arranged to leave his property to his children upon his death, and then lived
another 140 years, his children would have taken nothing unless they managed to out-
live him. Job was the only biblical person since the days of the “patriarchs” (Gen. 25:7;
35:28) said to have 1ived as long as 140 years, let alone longer. Pope notes that the
Septuagint credits Job with a total of 240 years. Job, pp. 353–54.
120
“[T]his son of yours . . . has devoured your property with prostitutes.” Lk. 15:30. See also
Luke 15:13. Earlier wisdom traditions had warmed against such conduct. See Sirach 9:6:
“Do not give yourself to harlots or you may lose your inheritance.” For particularly
insightful reflections on the Parable of the Prodigal Son that point to the biblical norms
of justice and compassion, see Christopher D. Marshall, “Offending, Restoration, and
the Law-Abiding Community: Restorative Justice in the New Testament and in the
New Zealand Experience,” JSCE 27 (2007) 3–30.
Transfer of Property by Inheritance and Bequest 55

and then was supported by them, or retained some to provide for his own
support, we cannot tell. That detail was not of interest to the narrator.
Testamentary arrangements are also noted in the story of Judith.
Though her husband died unexpectedly (Jdt. 8:2-3), he “had left her
gold and silver, and men and women slaves, and cattle, and fields”
(Jdt. 8:7). It appears that Judith’s husband had made some provision
transferring his estate to her either before he was taken ill or in the inter-
val before he died. He had other relatives (Jdt. 16:24) who otherwise,
perhaps, would have inherited under the law of intestate succession (Num.
27:8-11).121 Then, at the end of the story, before she died, she distributed
her property to various relatives (Jdt. 16:24). Clearly her intent was to
bequeath the estate to certain devisees or beneficiaries. We see here that
not only men, but also women could devise property by will or bequest.

3. Eligible Devisees or Beneficiaries


To whom might property be willed or bequeathed? Were there any
eligibility requirements? What we have called the law of intestate succes-
sion in Numbers chapter 27 evidently did not limit testators who wished
to dispose of their property otherwise.122 To be sure, sons were likely to
be the sole devisees or beneficiaries. Gifts might also be given to the sons
of concubines (Gen. 25:5-6). Job gave or bequeathed an inheritance not
only to each of his seven sons, but also to each of his three daughters.123
Presumably the daughters were given shares equal to those given to their
brothers.124 Proverbs 13:22 says, “A good man leaves an inheritance to his
children’s children” (RSV). This could have meant leaving a bequest for

121
There are other instances, however, where biblical widows apparently inherited their
husbands’ real property notwithstanding the written law of intestate succession in
Numbers chapter 27. See Section B.1.c. of this Chapter. The bequest to Judith parallels
a Ugaritic oral will in which a certain Yarimanu bequeathed his entire estate—including
cattle, slaves, bronze bowls, kettle and jugs, baskets, and a field—to his wife. That will,
however, went on to provide that the couple’s sons would be penalized if they sued their
mother for the estate, but that she was to bequeath the estate to whichever son paid her
respect. ANE, p. 546.
122
Thus H. H. Rowley, Job, New Century Bible (Greenwood, S.C.: Attic Press, 1985), p. 268.
123
An Old Babylonian text records that a woman bequeathed real property to her adopted
daughter. ANE, pp. 543–44. Several instances of bequests to daughters are found among
the 5th century B.C.E. Aramaic legal documents from Elephantine. See Szubin and
Porten, “Testamentary Succession,” pp. 41–44. Daughters were beneficiaries of bequests
in ancient Elam, also. See Ben-Barak, “Inheritance by Daughters,” pp. 31–32.
124
So A. van Selms, Job (Grand Rapids: Eerdmans, 1985), p. 158. But see Zafrira
Ben-Barak, “Job’s Daughters and the Question of Inheritance in Israel and the Ancient
Near East,” SBL 1990 International. Meeting Abstracts 7–8: “The daughters are given
56 Justice and Compassion in Biblical Law

granddaughters as well as grandsons.125 Numbers chapter 27, it will be


recalled, made no provision for grandchildren. Nor did it provide for
wives, but that did not prevent Judith’s husband from leaving her his
estate (Jdt. 8:7; 16:21). That a man might bequeath property to his widow
was well-established in Ugaritic law,126 at Nuzi,127 and in the Code of
Hammurabi (CH, sect. 150). It is not necessary to suppose that Israelites
or Jews adopted such practices only in the late biblical period. The Judith
story also introduces another variation on Numbers chapter 27. Before
Judith died, in anticipation of her death, she distributed her estate not
only to her husband’s next of kin, but also to her own ( Jdt. 16:24).
Neither of these types of distribution was provided for in Numbers 27,
which, in the first place, only governed transfer of property by intestate
succession, and, second, said nothing about a widow’s distributing inher-
ited property either to her husband’s relatives or to her own.128
Finally, one text suggests that a man might bequeath property both to
a slave and to his own natural sons:

A slave who deals wisely will rule over a son who acts shamefully, and
will share the inheritance as one of the brothers. (Prov. 17:2 RSV)129

This is not the same situation as in Genesis 15:3-4 which suggests that a
slave born in the house of a childless father might inherit his property.130
Here, it is a matter of a good slave131 sharing an inheritance along with his
master’s sons. It is likely that he would do so only if the master had so
arranged by making a special bequest.

part of the inheritance, albeit in an inferior way.” This issue evidently troubled an earlier
interpreter. See above, text accompanying note 117.
125
Grandchildren were also named as beneficiaries at Elephantine. Szubin and Porten,
“Testamentary Succession,” pp. 41–44. However, Proverbs 13:22 could mean only that a
righteous man’s wealth would be enjoyed by his intestate heirs to the third generation.
Compare Ps. 37:18.
126
See L. M. Muntingh, “The Social and Legal Status of a Free Ugaritic Female,” JNES 26
(1967) 111, and see above, note 121.
127
See the Thompsons, “Legal Problems,” pp. 97–98.
128
Compare the NOAB-RSV annotator’s comment, “She distributed her property
according to the Mosaic law (Num. 27:11).” NOAB-RSV, Apocrypha sect., p. 95; NOAB-
NRSV, Apocrypha sect., p. 52.
129
Compare Proverbs 29:21. There, however, the text is too uncertain to permit drawing
any conclusions.
130
See above, text accompanying notes 20–23.
131
Proverbs 17:2 speaks of a “slave who deals wisely.” In biblical wisdom writings, wisdom
and goodness are closely related if not synonymous attributes.
Transfer of Property by Inheritance and Bequest 57

D. Conclusions

Previous accounts of inheritance in biblical law and tradition generally


have not distinguished between inheritance by operation of law (or
intestate succession) and transfer of property by bequest. The latter topic
has either been ignored or subsumed under the former. Yet the distinc-
tion, common in modern law, appears valid in describing biblical law
and practice.
The law of intestate succession in Numbers 27:8-11 evidently was meant
to apply when the deceased had not bequeathed his property to anyone.
The order of succession or descent was as follows: first the decedent’s
son(s), then his daughter(s), then his brothers, then his uncles, and
finally, in the absence of all of the above, his family’s nearest kinsman.132
All the property would pass to the person or persons in each category;
those next in order would take nothing if there was a surviving heir in
the higher category. Thus, for example, a surviving daughter with no
brothers would inherit everything, while the decedent’s brothers would
receive nothing. Various biblical texts, however, alter or supplement this
pattern. As we have seen, one text suggests that a slave born in his mas-
ter’s house might inherit his property.133 If the parents had no sons but
an only daughter who later marries, their son-in-law might inherit every-
thing.134 More surprisingly, is the evidence that widows—who are not
mentioned in Numbers chapter 27—might inherit their husbands’ prop-
erty.135 Naomi’s late husband had male relatives; yet it was she who
evidently inherited his field. The widows of 2 Kings chapters 4 and 8
apparently inherited their deceased husbands’ houses, even though
each had a surviving son or sons. Perhaps the understanding was that the
widow had a life-interest in her husband’s estate, but that on her demise
it would pass to their sons or others in the order of intestate succession
set out in Numbers chapter 27.136

132
It may be noted that this law makes no mention of the decedent’s sisters, aunts, or
nearest kinswomen.
133
See above, text accompanying note 21.
134
See above, text accompanying notes 29–32. It is unclear what would happen if parents
had no sons, but more than one daughter and one daughter married while the others
remained single.
135
See Section B.1.c. of this Chapter.
136
In Naomi’s case, levirate marriage custom evidently provided that she might sell the
inherited property to her deceased husband’s nearest kinsman if that kinsman also mar-
ried her—or by extension, the widow of one of her sons—in order “to restore the name
of the dead to his inheritance” (Ruth 4:5 RSV). Presumably, the son born of this
58 Justice and Compassion in Biblical Law

Clearly bequests could be made to persons other than those identified


in this law of intestate succession. That law, apparently, was not regarded
as controlling with regard to bequests. Bequests could be left to widows,
daughters along with sons, slaves, and possibly grandchildren. Moreover,
a widow might bequeath property not only to her husband’s relatives,
but also to her own.137
Bequests were not, however, in the form of modern wills, that is,
testamentary instruments or documents signed or formally “executed”
by the testator, witnessed by others, and intended to become effective
upon the testator’s death. Instead, typically, the biblical testator, without
any discernible formalities, simply gave property to the donees or
devisees or stated that he had already done so. In most instances, such
gifts were made when the testator or donor expected that he or she
would die in the somewhat near (though not necessarily immediate)
future.138
Though these conclusions may be reasonably likely, a number of issues
remain unsettled. Possibly research into laws and customs of other
ancient Near Eastern cultures may shed further light on these questions.
Definitive answers may not be found, however, because the evidence is
insufficient to justify final conclusions.
Instances have been seen where widows with sons apparently inherited
their husbands’ property.139 At what point would such sons inherit their
father’s property? Was there some age of majority? Or would the wid-
owed mother continue to hold or control the property until she died or
remarried? If she remarried, would the sons then take their father’s
property, or would it pass to the second husband?
A somewhat similar set of questions arises with respect to sons by
levirate marriage. Would such sons “inherit,” that is, take possession of
their nominal father’s property when they reached some age of majority,
or would their biological (or “surrogate”) father hold it for them until
his demise? When the biological father died, would the first-born son by
levirate marriage inherit some of his property, thus taking away from
what the father’s “own” sons, if any, would have inherited; or would the
first-born son by levirate marriage inherit only the redeemed property

marriage would not immediately inherit, i.e., take possession of the redeemed property,
the day he was born. Perhaps he would do so only upon the death of his biological or
surrogate father.
137
Jdt. 16:24.
138
See Section C.1. of this Chapter.
139
2 Kgs 4:1-7; 8:1-6.
Transfer of Property by Inheritance and Bequest 59

that had belonged to their nominal father? If there should be more than
one son by levirate marriage, would the older (or oldest) take all, or only
a double portion; or would such sons share the inheritance equally?140
What would happen if the deceased’s property was redeemed and the
levirate marriage was blessed with daughters, but no son?141 Would such
daughters inherit the redeemed property? Would only the first-born
daughter inherit, or would all such daughters be considered heiresses, as
under the laws of inheritance set out in Numbers chapters 27 and 36?
In the case of the Jubilee year laws, was it expected that the original
owner himself would return to the property after 49 years, or was it
understood that his heir or heirs would do so if he had died in the mean-
time? In case of multiple heirs, would the original property be parti-
tioned among them, or would it be kept intact? (Or had the planners for
the Jubilee year neglected to contemplate this problem?) Was it expected
that the Jubilee year would be repeated every 50 years, or was it meant to
be observed only once?142 In either event, what was to be the base year
from which the fiftieth would be reckoned?
Finally, as to the birthright: it is reasonable to infer from Deuteronomy
21:15-17 that at some point in the biblical period, the first-born son was
entitled to receive a double portion of his father’s estate, whether by
inheritance or bequest, as a matter of custom. Yet a double portion
entitlement is not attested by any other biblical text. The question
remains, then, to what extent such a birthright tradition or practice actu-
ally was observed during the biblical period.

140
Westbrook speculates that “all sons of the levirate union shared in the inheritance of
the deceased.” “Law of the Biblical Levirate,” pp. 79–80. See also C. J. H. Wright, Family,
in 2 Anchor Bible Dictionary 763 (Doubleday, 1992) (suggesting that other sons would
be heirs to the levir’s property).
141
See above, note 28.
142
The Jubilee year laws do not specify that the Jubilee year was to be repeated every
50 years, but refer instead to the year of Jubilee. Yet a cycle seems implicit in the provi-
sions synchronizing the Jubilee year with the series of Sabbatical years in Leviticus
25:1-10, and scholars generally assume that the law intended that the cycle be repeated
throughout history. Later Judaism understood that the cycles were to have been
repeated. 14 Encyclopedia Judaica (Keter Pub., 1972), pp. 581–82.
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Part II

Criminal Law

It is not right to be partial to the guilty,


or to subvert the innocent in judgment.
Proverbs 18:5

To no man will we refuse justice.


Magna Carta

Necessarily, biblical texts themselves do not distinguish between the


relatively modern categories of civil and criminal law. Nevertheless, this
distinction not only is useful; it is also implicit in biblical laws. Part I
examined certain biblical laws that in modern times could well be con-
sidered under the civil heading, particularly, laws regarding what would
now be called contracts, torts, and transfer of property by inheritance
and bequest. These laws typically involve agreements between persons,
requiring those who have harmed others to make compensation, and
arrangements for transferring property from one person to another.
Criminal laws typically define offenses against the community: actions
which harm or put at risk the community or its members in ways that
cannot be remedied by compensation in the form of money or replace-
ment property. Criminal conduct generally involves the offender’s intent
to cause harm. The Bible includes a great many criminal laws.
Most biblical criminal laws relate to capital offenses. Accordingly, the
main focus here in Part II is on capital crimes. These, and other aspects
of biblical criminal law, will be considered in the five following chapters,
namely, chapters Three, Four, Five, Six, and Seven.1

1
Portions of these chapters derive from the present writer’s article, “The Death Penalty and
Due Process in Biblical Law,” published in 81 Univ. of Detroit Mercy L. Rev. 781 (2004).
62 Justice and Compassion in Biblical Law

Chapter Three reviews a series of biblical trial scenes, most of which


involve the possible application of the death penalty. These scenes also
illustrate some of the due process provisions which will be examined
later in Chapter Six. Chapter Four considers a number of biblical laws
that call for impartial justice and, in effect, the equal protection of the
laws, in the prosecution and administration of both criminal and civil
matters. Chapter Five identifies the several kinds of conduct that are
regarded as capital offenses in biblical law, and considers the various
rationales given for applying the death penalty in cases where these
offenses have been committed. Chapter Six examines the rather large
number of laws that provided for certain due process protections,
particularly for those accused of capital crimes. The Seventh Chapter
then reflects upon on the possible relevance of some of these biblical
laws in analyzing contemporary American criminal justice proceedings.
Chapter 3

Biblical Trial Scenes

About three months later Judah was told, “Your daughter-in-law, Tamar, has
played the whore; moreover she is pregnant as a result of whoredom.” And Judah
said, “Bring her out, and let her be burned.” As she was being brought out, she
sent word to her father-in-law, “It was the owner of these who made me pregnant.”
And she said, “Take note, please, whose these are, the signet and the cord and
the staff.”
Genesis 38:24-25

The elders said, “As we were walking in the garden alone, this woman came in
with two maids, shut the garden doors, and dismissed the maids. Then a young
man, who had been hidden, came to her and lay with her. We were in a corner
of the garden, and when we saw this wickedness we ran to them. We saw them
embracing, but we could not hold the man, for he was too strong for us, and he
opened the doors and dashed out. So we seized this woman and asked her who
the young man was, but she would not tell us. These things we testify.”
Susanna, vv. 36-40 (RSV)

Arguably, much of biblical law derives from case law decided by kings,
courts or individual priests, judges, or elders.1 A few narrative texts
provide glimpses into actual cases or trials. Some of these indicate proce-
dural features that will be considered later. Two of these scenes relate
more to civil than criminal proceedings. The others involve capital
offenses. Laws relating to such offenses will be examined in Chapters
Five, Six, and Seven.
Nine trial scenes are reviewed in this chapter, beginning with those
probably most ancient, coming down to those composed more recently.

1
See generally, Hans Jochen Boecker, Laws and the Administration of Justice in the Old
Testament and the Ancient East (Augsburg Press, 1988) (1976).
64 Justice and Compassion in Biblical Law

The first five trial scenes considered may date back to the 8th century
BCE, if not earlier. The next two scenes found in Leviticus 24 (H) and
Numbers 15 (PC) probably were set down between the 7th and the 5th
centuries BCE. The story of Susanna and the Elders, which concludes this
section, may have been written as late as the 2nd or 1st century BCE.

A. Genesis 38:24-26: Tamar’s Evidence

The aging patriarch Judah, on being informed that his daughter-in-law,


Tamar, was pregnant long after her husband’s demise, issued orders for
her to be brought out and burned. In Judah’s mind, evidently, Tamar’s
pregnancy under these circumstances presented an equivalent to what
in traditional tort law might be considered another case where res ipsa
loquitur (“the thing speaks for itself”).2
Judah evidently assumed that Tamar had “played the harlot,” that is,
become a prostitute, and consequently became pregnant (Gen. 38:28
RSV). Possibly prostitution was a common law crime. There was as yet no
statutory (Mosaic) law,3 and no subsequent biblical law made prostitution
as such a capital offense. In fact, Judah himself had gotten Tamar preg-
nant, supposing her to be a prostitute, and not recognizing her as his
widowed daughter-in-law. At that time, she had prudently secured from
him certain items of personal property which could serve to identify their
owner: his signet, cord, and staff. Acting in her own defense, she produced
these as evidence. To his credit, Judah immediately recognized and
acknowledged them as his. Moreover, he commended her for undertaking
to become pregnant, and admitted his own failure to provide his third son
as her husband, as seems to have been expected under the customary law
of levirate marriage.4
Here there is no mention of a formal trial before “the people” or some
other form of a jury; but obviously Tamar had opportunity to speak and
produce this critical evidence in a timely manner.5 In consequence,

2
See W. Page Keeton, ed., Prosser and Keeton on the Law of Torts, Sect. 39, 5th edn.
(St. Paul: West Pub. Co., 1984).
3
According to biblical tradition, it would be at least another generation before Moses was
born. See Exodus chapter one.
4
See generally, Donald A. Leggett, The Levirate and the Goel Institutions in the Old
Testament; with Special Attention to the Book of Ruth (Mack Pub. Co., 1974). Also see
Chapter Two, Section B.2, and Chapter Eight, Section B.2.c.
5
Another early biblical scene (though not involving a trial) also focused on physical
evidence: Genesis 44:1-17. Here Joseph had his assistant “plant” his own silver cup in his
Biblical Trial Scenes 65

Tamar was completely exonerated. This episode could be considered the


first biblical instance of items being entered into physical evidence,
though they were not, of course, labeled exhibits “A, B, and C.”

B. 2 Samuel 12:1-15: David as Judge and


Nathan’s Parable

As king of Israel and Judah, David was also chief judicial officer.6 Having
committed adultery with Bathsheba, and after attempting unsuccess-
fully to induce her husband, Uriah, to sleep with her in order to cover
up the affair, David arranged for Uriah to die in battle. Subsequently,
the prophet Nathan approached David in the latter’s judicial capacity,
and told him a story about a rich man and a poor man. Although the
former had numerous flocks and herds, he took the poor man’s one
little pet lamb, killed and cooked it, and served it to a guest for dinner
(2 Sam. 12:1-4).

Then David’s anger was greatly kindled against the man; and he said to
Nathan, “As YHWH lives, the man who has done this deserves to die; and
he shall restore the lamb fourfold, because he did this thing, and because
he had no pity.” Nathan said to David, “You are the man.” (2 Sam. 12:
5-7 RSV)

King David thought that Nathan was presenting him with an actual case
at law. In fact, Nathan was doing just that, but the case was that of YHWH
v. David. In pronouncing judgment against “the man,” David pronounced
it against himself. Although the purported offense was stealing and
killing a man’s pet lamb, David nevertheless declared that “the man . . .

brother Benjamin’s sack, so that he might later accuse the latter of theft. Two earlier
portions of the Joseph story also involve production of fabricated or misleading physical
evidence: Gen. 37:29-33, where Joseph’s brothers dip his robe in animal blood in order to
make their father think he had been killed; and Gen. 39:11-18, where Potiphar’s wife
seizes, preserves, and later produces Joseph’s “garment” as evidence that he had attempted
to assault her sexually. Deuteronomy 22:13-21 describes a later biblical law providing for
introduction of physical evidence at trial. See Chapter Six, Section B.2.
6
See also 2 Samuel 15:1-6, where Absalom attempts to gain supporters by proclaiming that
if he were king (instead of David, his father), he would decide justly Israelites’ suits
brought before him for judgment. There was no “separation of powers” in those times.
66 Justice and Compassion in Biblical Law

deserves to die.”7 The actual sentence David pronounced called for four-
fold restitution, as provided by the CC in Exodus 22:1.8

C. 2 Samuel 14:1-11: A Hypothetical Case Prompts


Mitigation and Alternative Sentencing

Absalom, David’s ambitious, and now oldest surviving son, had arranged
the murder of his older brother (2 Sam. 13:23-29), and for the past
three years had taken refuge in a nearby foreign land (2 Sam. 13:34-38).
David wanted to restore Absalom, but felt unable to do so. In this
setting, Joab, David’s army commander and friend, staged a mock trial
in order to induce him to allow Absalom to return. David, however, was
led to believe that this was a real case at law that called for his decision
as chief judge.
An unnamed woman selected by Joab, came before David reciting
the story Joab had put in her mouth: She was a widow with two sons
who had quarreled, one had killed the other, and now her family
demanded the death of the surviving son. She had come to the King
for help, since if this other son were put to death, she and her husband
would have no heir. That situation, as she put it, would both “quench”
her “one remaining ember,” and leave her husband “neither name nor
remnant on the face of the earth” (2 Sam. 14:1-7). Specifically, she
begged the King to “invoke YHWH [his] God, that the avenger of
blood slay no more and [her] son not be destroyed.” David then
declared that her son would indeed be spared, and that “not one hair”
of her son would “fall to the ground” (2 Sam. 14:11).
David soon began to suspect and then discovered that the entire
proceeding had been arranged by Joab, but nevertheless decided to
permit Absalom to come back to Jerusalem and live, in effect, under
house arrest (2 Sam. 14:12-24). After two years, David and Absalom
were, temporarily, reconciled (2 Sam. 14:28-33). We see here that the
King, in his role as chief judge, might spare the life of a known mur-
derer under certain circumstances. In the woman’s case, the circum-
stance was the fact that—as her story was told—to kill (or allow the
“avenger of blood” to kill) the offender would leave his parents with no

7
Nathan implies that David had committed a capital offense; but that while YHWH would
spare him, he would cause the death of David’s (and Bathsheba’s) new-born son.
8
Exodus 21:37, in the Hebrew text. See Chapter One, Section B.
Biblical Trial Scenes 67

heir. At least in this instance, the king, as chief judge, might mitigate
the death penalty otherwise prescribed in several biblical laws9 and, in
the case of Absalom, impose an alternative sentence.

D. 1 Kings 3:16-28: A Maternity Suit

This is the famous story—whether legend or history—about the two


prostitutes who each claimed to be the mother of a sole surviving infant.
They came before Solomon in his judicial capacity, each testifying that
the child was hers. Solomon proceeded to solve the case in the court-
room by proposing to carve the living child in two, giving half to each
claimant. This horrible prospect prompted the true mother to renounce
her claim in order to spare the child, thereby demonstrating that she was
its mother. Solomon’s proposal could be seen as an ancient instance of
cross examination, albeit on the inquisitorial rather than adversarial trial
model. In effect, he was asking each claimant, do you really care about
this child’s welfare, or do you have some other agenda? Here also we see
another case where, obviously, women’s testimony was admissible in
court.10 In this trial scene, which is more of a civil than criminal proceed-
ing, there was no death penalty issue.

E. 1 Kings 21:1-16: A Case of Malicious Prosecution

King Ahab of Israel wanted to acquire Naboth’s vineyard which adjoined


the royal premises, but Naboth, a good Israelite, declined to part with his
ancestral inheritance. Ahab’s Phoenician wife, Jezebel, then arranged to
have two “base fellows” charge Naboth falsely with having cursed both
God and the king. Cursing God may have been a capital offense under
the law.11 Cursing a ruler of Israel was prohibited (Exod. 22:28), but not
necessarily a capital crime.12 Under ANE common law,13 however, treason

9
See Chapter Five, Section B.1.
10
See also Deut. 21:18-21, and 2 Sam. 14:1-11.
11
See Exod. 22:28 and Lev. 24:15 (neither of which, however, includes a penalty clause).
Leviticus 24:16 specifies the death penalty for those who “blaspheme the name” of
YHWH. In Leviticus 24:10-16 and 23, the verbs translated as “blaspheming” and “curs-
ing” are used interchangeably.
12
Cf. 2 Samuel 16:9-14; 1 Kings 2:8-9.
13
Similar versions of many ancient Near Eastern laws appear in more than one nation’s
legal tradition. Some such laws, though not part of biblical law as recorded, may underlie
68 Justice and Compassion in Biblical Law

was a capital offense, and if anyone was found guilty of treason, his
property would go to the state instead of passing to family heirs by way of
inheritance or bequest.14 Thus, by having Naboth “framed” and executed
under a charge of treason, Jezebel was able to obtain title to the property
for her husband, the king, as head of state. The trial (or “kangaroo-court”)
took place in Jezreel, Naboth’s home city, “in the presence of the people”
who believed the false charges, and stoned him to death. Two witnesses
testified falsely, evidently the requisite minimum number under common
law to sustain a capital charge.15

F. Jeremiah 26:7-24: Defendant Testimony


and Argument from Precedent

In Jeremiah’s famous “Temple sermon” ( Jer. ch. 7) this prophet declared


that his contemporary countrymen who violated YHWH’s requirements
of justice and mercy would not be spared divine judgment even were
they to take refuge in YHWH’s “house,” that is, the Jerusalem Temple.
Jeremiah declared that YHWH had destroyed his “place” at Shiloh cen-
turies earlier; and that YHWH would now “pour out” his anger and wrath
on “this place”—the Jerusalem Temple. Chapter 26 reports an abbrevi-
ated version of this same episode, and then describes the reactions of vari-
ous priests and other prophets: “This man deserves the sentence of death
because he has prophesied against this city . . .” ( Jer. 26:11). In effect,
Jeremiah was charged with sedition or treason.16
A trial of some sort then was held before “all the princes and all the
people.” Speaking in his own defense, Jeremiah—like a later Socrates—

certain narratives. On ANE common law, see generally, Raymond Westbrook, Studies in
Biblical and Cuneiform Law, Cahiers de la Revue Biblique no. 26 (Paris: J. Gabalda, 1988).
For comparison of relevant biblical and ANE laws in convenient, modern translation,
see Edwin M. Good, “Capital Punishment and Its Alternatives in Ancient Near Eastern
Law,” 19 Stanford Law Rev. 947 (1967), pp. 947–77, and Victor H. Matthews & Don C.
Benjamin, Old Testament Parallels: Laws and Stories from the Ancient Near East (New York/
Mahwah, NJ: Paulist Press, 1997), pp. 83–123.
14
See J. Weingreen, “The Case of the Daughters of Zelophehad,” 16 VT 521–22 (1966),
and Raymond Westbrook, Property and the Family in Biblical Law, JSOT Supp. Series no.
11 (JSOT Press, Sheffield, 1990), pp. 123–24.
15
Biblical laws specifying a minimum of two witnesses probably were written later than the
time of Ahab. See Deut. 17:6; 19:15; Num. 35:30. See Chapter Six, Section C.1.
16
See Baruch A. Levine, “Capital Punishment,” in Morton Smith and R. Joseph Hoffmann,
eds., What the Bible Really Says (Buffalo: Prometheus Books, 1989), pp. 23–24. Levine
concludes that during the period of the monarchy, sedition was a capital offense. Id. at
p. 24. See also Good, “Capital Punishment” (cited above in note 13), pp. 966–67, citing
other possible biblical instances of execution for treason.
Biblical Trial Scenes 69

urged the court, “Do with me as seems good and right to you;” but
reminded them that it was YHWH who had sent him “to prophesy against
this house and this city” ( Jer. 26:12-15). The “princes and all the people”
reportedly found this argument persuasive, and declared, “This man
does not deserve the sentence of death for he has spoken to us in the
name of YHWH our God” (Jer. 26:16). In addition, “some elders of the
land” then cited precedent in the prior case when the prophet, Micah,
had declared that YHWH would destroy his “house” at Shiloh for similar
reasons, but was not put to death.17 Jeremiah’s life was then spared. Here
we can see a “court” swayed by persuasive argument based on policy
considerations—in effect, that prophets speaking on YHWH’s behalf
should be accorded “free speech.” In addition, we see clearly the impor-
tance of precedent or prior case law—a basic feature of modern-day
jurisprudence which values precedent, among other reasons, so that
persons may govern their conduct to accord with established law, and so
that courts will not have to rework their policy analyses each time they
confront a new case.

G. Leviticus 24:10-23: A Case of Blasphemy

A man of mixed (Egyptian-Israelite) parentage, while arguing (if not


fighting) with another man, “blasphemed the Name in a curse” (Lev. 24:
10-11).18 Because there was no specific precedent or statutory law on
point, the offender was placed in custody pending further authoritative
instructions. In this story, custody was intended to secure the prisoner
pending further legal procedures (Lev. 24:12). YHWH then instructed
Moses to order the death penalty. A new procedure is indicted here: all
who had heard the man cursing or blaspheming were called on to “lay
their hands upon his head,” thereby in effect testifying against him.19
Again, as the case is reported, multiple witnesses so testified as was
then required by statutory law in capital cases.20 The law of the case is

17
Jeremiah 26:17-19, 24. Another prior case also is cited in the account: that of a prophet
named Uriah who was put to death for making a similar proclamation. Jer. 26:20-23.
Possibly the “court” was confronted with two conflicting lines of precedent and chose to
go with that of the Micah case. Alternatively, some interpreters suggest that the reported
Uriah case may have been merely a fictitious addition to the story later intended to dra-
matize the perilous nature of Jeremiah’s prophetic career.
18
See Chapter Five, Section B.1.d.i.(c).
19
Lev. 24:14. See also Susanna v. 34.
20
See Chapter Six, Section C.1.
70 Justice and Compassion in Biblical Law

articulated in terms clearly intended to be binding precedent in the


future:

He who blasphemes the Name of YHWH shall be put to death; all the
congregation shall stone him; the sojourner as well as the native, when
he blasphemes the Name, shall be put to death. (Lev. 24:16 RSV)

Here, clearly, case law was understood to supplement statutory authority.21


The story concludes in v. 23, reporting that “the people of Israel” stoned
the blasphemer to death.

H. Numbers 15:32-36: A Case of Possible


Sabbath Violation

Here another episode or story contributes to the growth of the law.


A man was found gathering sticks on the sabbath day. According to
Exodus 35:2, which, like Numbers 15, probably represents the PC or
P tradition, anyone who “worked” on the sabbath was to be put to death.
But what sort of activity on the sabbath constituted “work”? As in the pre-
vious instance, absent statutory law or decisional precedent on point, the
accused was “put . . . in custody, because it was not clear what should be
done to him” (Num. 15:34). Again, as the story is told, YHWH then
informed Moses that the offense in question was capital and that the
offender should be executed. In both instances, the accused might have
objected that new law was being applied against them ex post facto, or ret-
roactively. Here the accused had no expressed notice that the act of gath-
ering sticks would constitute a capital offense. Although the law or rule
of the case is not spelled out, those similarly situated afterwards would,
presumably, know better than to gather sticks on the sabbath.

I. Susanna vv. 28-62: Cross Examination Catches


the Culprits in the Courtroom

Court was held regularly at Joakim’s house, he being a wealthy and


honored member of the Jewish community.22 Two elders, recently

21
Although the incident is reported as part of the Holiness Code, it may reflect Priestly
editing.
22
The story of Susanna may belong more in the category of fiction than history. Neverthe-
less, it probably portrays accurately various late-biblical legal traditions and practices.
Biblical Trial Scenes 71

appointed as judges, frequently presided over trials at Joakim’s house.


These two elders/judges independently became infatuated with Joakim’s
beautiful wife, Susanna. Discovering their common lust, they conspired
to coerce her into having sexual intercourse with them: “[G]ive your
consent, and lie with us. If you refuse, we will testify against you that a
young man was with you” (vv. 20-21). Susanna refused, though knowing
that these judges’ false testimony could lead to her death.23 They then
charged her with adultery. Trial took place at Joakim’s house before “the
people.” Susanna was summoned to appear, and with her came her
parents, children, and other family members. The two elders/judges
stood up, laid their hands on Susanna’s head,24 and recited their false
testimony. It is not clear whether she was not allowed to speak on her own
behalf, or whether she chose not to do so. The “assembly,” acting as jury,
believed the elders’ testimony, and “condemned her to death” (v. 41).
Young Daniel, inspired by God, now appeared as Susanna’s advocate or
defense counsel, and called for further proceedings:

Taking his stand in the midst of them, he said, “Are you such fools, you
sons of Israel? Have you condemned a daughter of Israel without exami-
nation and without learning the facts? Return to the place of judgment.
For these men have borne false witness against her.” (vv. 48-49 RSV)

Earlier laws provided, in some instances, for examination or inquiry


into “the facts,” but what follows is the first explicit instance of cross-
examination by counsel in courtroom proceedings.25 First, Daniel orders
the two adverse witnesses (the two elders/judges) separated or seques-
tered during examination. After preliminary “badgering,” Daniel elicits
conflicting testimony from each as to the exact site of the alleged adul-
terous affair. Daniel then charges them both with bearing false witness,
after which the assembly found them guilty and put them to death
“in accordance with the law of Moses”26 (vv. 60-62). The story illustrates

23
See Lev. 20:10; Deut. 22:22.
24
Cf. Lev. 24:14.
25
The court evidently consisted of both “all the people” and other “elders” (Susanna
v. 50). It is unclear who these other “elders” were. No “elders” other than the two
malicious judges are mentioned in the first phase of the trial. Whether there was a pre-
siding judge at either phase of the trial is not indicated. Daniel’s appearance here as
defense counsel evidently was pro bono, not for fee.
26
It might be asked how Daniel and the assembly knew that both were lying, since, on the
record evidence, either one of them might have been telling the truth, while the other
had lied.
72 Justice and Compassion in Biblical Law

application of the law governing penalties for false malicious witnesses


(Deut. 19:16-21). It also, again, illustrates the law requiring a minimum
of two adverse witnesses to sustain a charge alleging capital crimes.27
Implicitly, in both the story and the related witness laws, the accused is
presumed innocent until proven guilty. As the story is told, “the whole
assembly” found in Susanna’s favor (v. 60), in effect, reaching a unani-
mous verdict. The concluding clause in v. 62 underscores the result of
the proceedings: “Thus innocent blood was spared that day.”28

27
See Six, Section C.1.
28
As will be seen in Chapter Six, much of biblical law functioned, and no doubt was
intended to prevent the execution of innocent persons. Lest innocent persons be put to
death was a core biblical concern.
Chapter 4

Impartial Judgment and Equal


Protection of the Laws

I charged your judges at that time: “Give the members of your community a fair
hearing, and judge rightly between one person and another, whether citizen or
resident alien. You must not be partial in judging: hear out small and the great
alike; you shall not be intimidated by anyone, for the judgment is God’s.”
Deuteronomy 1:16-17

No State shall . . . deny to any person within its jurisdiction the equal protection
of the laws.
U.S. CONST. AMEND. XIV Sect. 1

The concepts “impartial judgment” and “equal protection of the laws”


are closely related. Presumably, an impartial judge would not be influ-
enced by the status of persons coming before her.1 Perhaps it is a matter
of emphasis. At any rate, a number of biblical texts call on judges to be
impartial in their judgment; while several other texts identify particular
classes of persons who are to be treated equally. Some of these laws might
also have been meant to apply in civil cases; but generally they appear
to have referred to criminal proceedings. Laws calling for impartial
judgment are considered first.

A. Impartial Judgment

A variety of biblical laws and other biblical texts emphasize that judges
(or others who decide cases) must do so impartially: that judges should
be no respecters of persons; i.e., that the law should apply regardless of

1
In passing, it may be noted that the first judge said actually to sit judging cases in
a judicial capacity in the Book of Judges was Deborah. See Judges 4:4-5. She was also the
only woman reported to have so served.
74 Justice and Compassion in Biblical Law

the status of the parties before the court.2 Perhaps the broadest state-
ment is in the RDC’s admonition at the investiture of new (secular)
judges:

You shall not pervert justice; you shall not show partiality; and you shall
not take a bribe . . . Justice and only justice shall you follow . . . (Deut.
16:18-20 RSV)3

Several wisdom texts likewise emphasize the importance of judging


impartially the righteous or innocent, on one hand, and the wicked on
the other.4 In this connection, the CC warns particularly against putting to
death innocent and righteous persons: “Keep far from a false charge, and
do not kill the innocent and those in the right, for I will not acquit the
guilty” (Exod. 23:7).5 The implication seems to be that if there was any
serious question as to the truth of adverse evidence in a capital case, the
accused should be spared execution; moreover, that YHWH himself
would attend to the just fate of the real offender, whether the accused
or some other person. At any rate, here, and elsewhere thematically in

2
See Dale S. Recinella, The Biblical Truth about America’s Death Penalty (Boston: Northeast-
ern Univ. Press, 2004), pp. 228–305, contrasting biblical laws against preferential
treatment of privileged classes with patterns and instances in various U.S. jurisdictions.
3
See also Deut. 1:16-17, quoted at the beginning of this chapter. Deuteronomy 16:18-20
may have been part of the RDC, or it may have been added subsequently. With the clos-
ing of rural cult shrines pursuant to the requirement that YHWH might be worshiped
only at the Jerusalem Temple, local priests who had, it seems likely, functioned as judges,
evidently were replaced by local, secular judges.
4
See, e.g., Prov. 18:5 (RSV): “It is not good to be partial to a wicked man, or to deprive a
righteous man of justice.” See also Prov. 17:15; 24:23-25, and Sir. 4:9 and 42:1-2. See
generally, T. B. Maston, Biblical Ethics (Mercer Univ. Press, 1982), pp. 94–95.
5
On this same point, see Gen. 18:22-33. Here is told the ancient story of Abraham’s
bargaining with YHWH over the fate of Sodom.
Because of that city’s reported wickedness, YHWH is thinking about destroying it and all
its people, but first consults with Abraham. Abraham then raises the crucial question,
whether it is right for YHWH to “destroy the righteous with the wicked.” (Gen. 18:23
RSV). “Far be it from [God] to do such a thing, to slay the righteous with the wicked, so
that the righteous fare as the wicked . . . Shall not the Judge of all the earth do right?,”
Abraham asks (Gen. 18:25 RSV). At first YHWH agrees to spare the city if fifty righteous
persons can be found; and at the end, following negotiations with Abraham, YHWH
agrees to spare the city if even ten such persons could be found. Gen. 18:32 (Compare
Jer. 5:1 and Ezek. 22:30, where just one righteous person would be enough to cause God
to spare the people of Jerusalem and the land of Judah). The story does not condemn
capital punishment as such; but it does expressly challenge the propriety of punishing the
innocent along with the guilty. As will be seen, many biblical laws were intended to assure
that only those who had actually committed capital crimes would be subjected to the
death penalty. See Chapter Six.
Impartial Judgment and Equal Protection of the Laws 75

Biblical law, it is critically important to protect the lives of the innocent


accused.
This broadly phrased mandate is applied in many other laws to partic-
ular categories of persons. In effect, persons in these categories or classes
were to be entitled to what in modern jurisprudence is called the equal
protection of the laws. Such protection was to be accorded not simply
because YHWH/God so demanded, but, more fundamentally, because
YHWH/God, himself, “executes justice” in this manner:

For YHWH your God is God of gods and Lord of lords, the great,
the mighty, and the terrible God who is not partial and takes no bribe.
He executes justice for the fatherless and the widow, and loves the
sojourner, giving him food and clothing. (Deut. 10:17-18 RSV)

B. Equal Protection: Protected Classes

The principle of impartial judgment is most consistently articulated in


connection with cases involving the poor and sojourners or resident
aliens. Implicitly, the principle was that the laws should apply equally to
all distinguishable classes of persons. Thus it seems appropriate to desig-
nate this principle as according “the equal protection of the laws.” Impar-
tial judgment or equal protection, however, seems to have been applied
less consistently in regard to gender-based discrimination, and only to a
limited extent with respect to slaves.6

1. The Poor
The Covenant Code cautions those who judge suits—who may be either
elders or officials of some sort—to be impartial in judging the poor,
neither favoring nor disfavoring their cause, and to decide on the facts,
rather than with respect to persons or corrupt influence:

6
As to the principle of equality in biblical and Jewish law, see generally Ze’ev
W. Falk, Law and Religion: The Jewish Experience (Jerusalem: Mesharim, 1981),
pp. 90–103, and Ze’ev W. Falk, Religious Law and Ethics: Studies in Biblical and Rabbinical
Theonomy ( Jerusalem: Mesharim, 1991), pp. 32–35. See also Pamela Barmash, Homicide
in the Biblical World (Cambridge Univ. Press, 2005), p. 175, as to the lex talionis or
principle of equivalent punishment: “Lex talionis makes rich and poor equal in biblical
law. More than that, status, with the exception of the slave is simply not a factor in
biblical law.” The lex talionis is considered in Chapter Six, Section D.2.
76 Justice and Compassion in Biblical Law

[N]or shall you be partial to a poor man in his suit.


[. . .]
You shall not pervert the justice due to your poor in his suit. Keep far
from a false charge, and do not slay the innocent and righteous, for
I will not acquit the wicked. And you shall take no bribe, for a bribe
blinds the officials, and subverts the cause of those who are in the
right. (Exod. 23:3, 6-8 RSV)

The Holiness Code likewise admonishes those who will decide such
cases:

You shall do no injustice in judgment; you shall not be partial to the


poor or defer to the great, but in righteousness shall you judge your
neighbor. (Lev. 19:15 RSV)

Some of the classical prophets emphasized this concern, pronouncing


YHWH’s judgment against the wealthy and powerful who had oppressed
or failed to protect the rights or interests of the poor.7

2. Sojourners or Resident Aliens


The principle of equal or impartial justice is applied broadly to gerim,
that is, sojourners or persons of foreign origin living in Israel. Several
such texts appear in H. Thus, for instance, Leviticus 19:33-34 (RSV):

When a stranger sojourns with you in your land, you shall not do him
wrong. The stranger who sojourns with you shall be to you as the native
among you, and you shall love him as yourself; for you were strangers
in the land of Egypt: I am YHWH your God.

Likewise, in Leviticus 24:22 (RSV): “You shall have one law for the
sojourner and one for the native; for I am YHWH your God.”8

7
See, e.g., Amos 2:6-7; 4:1; 5:11-12; 8:4-6; Isa. 1:16-17, 23; 3:14-15; Jer. 5:28-29. See also
Prov. 29:7 (RSV): “A righteous man knows the rights of the poor; a wicked man does not
understand such knowledge”; and Prov. 29:14 (RSV): “If a king judges the poor with
equity, his throne will be established for ever.” Cf. Jer. 22:16 (commending King Josiah
for having “judged the cause of the poor and needy”).
8
It is not clear from the context whether this equal treatment requirement was
intended as a general principle applicable in connection with all laws, or whether it was
Impartial Judgment and Equal Protection of the Laws 77

Equal protection also meant equal liability under the law. Aliens who
sacrificed their children to Molech would have been subject to the same
death penalty that applied to Israelites who did so (Lev. 20:2). Likewise,
resident aliens who “blaspheme the name” would be just as accountable
as native-born Israelites (Lev. 24:16).9 Implicitly the lex talionis was
grounded in and gave expression to the idea of equality or impartial
justice: any person who injured another, or took another’s life, was to
experience the same kind of deprivation in return.10
Two provisions of the PC also apply specifically to both sojourners and
native-born. As read in its immediate context, the equal protection provi-
sion of Numbers 15:14 seems to have applied only to the matter of pre-
senting offerings by fire or burnt offerings:

All who are native shall do these things in this way, in offering an
offering by fire, a pleasing odor to YHWH. And if a stranger is sojourn-
ing with you, or any one is among you throughout your generations,
and he wishes to offer an offering by fire, a pleasing odor to YHWH, he
shall do as you do.11

However, as the text continues, this principle evidently was generalized


so as to apply to all types of laws:

For the assembly, there shall be one statute for you and for the stranger
who sojourns with you, a perpetual statute throughout your genera-
tions; as you are, so shall the sojourner be before YHWH. One law and
one ordinance shall be for you and for the stranger who sojourns with
you. (Num. 15:15-16 RSV)12

Unlike earlier provisions as to cities of refuge13 which are silent on this


point, the PC explicitly provides that strangers and sojourners, as well as
Israelites, might seek protection in such cities (Num. 35:15).

meant to apply only to those laws set out in the verses immediately preceding
(Lev. 24:10-21).
9
See Chapter Five, Section B.1.d.i.(c). See also Lev. 18:26-30, calling for both natives and
sojourning strangers to keep YHWH’s “ordinances and statutes” and to keep from doing
any of the enumerated “abominations.”
10
See Falk, Law and Religion (cited above in note 6), p. 96. As to the lex talionis, see
Chapter Six, Section D.2.
11
Num. 15:13-14 (RSV).
12
Compare Exodus 12:43-49, which says in effect that only circumcised alien sojourners
might partake of the Passover meal. See Falk, Law and Religion (cited above in note 6),
pp. 23–24.
13
See Chapter Six, Section A.
78 Justice and Compassion in Biblical Law

3. Women
Equal protection provisions are somewhat ambiguous with respect to
gender. As has been seen in Chapter Two, it appears that widows could
inherit property from their pre-deceased husbands; however daughters
could inherit only in special circumstances. Some laws clearly applied
equally. Striking or cursing either father or mother was a capital crime
(Exod. 21:15, 17; Lev. 20:9), as was failing to obey “the voice” of either
parent (Deut. 21:18-19). Male and female slaves were both covered under
the law against fatal battery by their owners (Exod. 21:20-21). A man
who, in certain circumstances, negligently caused the death of a mar-
ried, pregnant woman was to be put to death according to what seems to
be the earliest version of the lex talionis (Exod. 21:22-25). Men and
women, as well as sons and daughters, were protected under the
Covenant Code’s provisions regarding oxen that gored people to death
(Exod. 21:28-31).
A few laws specified that men and women were equally liable for
certain offenses. Both men and women were subject to capital punish-
ment for “buggery” (Lev. 20:15-16), and also for allotheism, or the wor-
ship of other gods (Deut. 17:2-5). Likewise both men and women
incurred the death penalty for adultery (Deut. 22:22-27; Lev. 20:10).
And, although the Covenant Code applied the death penalty only to sor-
ceresses (Exod. 22:18), the Holiness Code extended that form of punish-
ment to both male and female mediums and wizards (Lev. 20:27).
On the other hand, while a new bride might be executed if her parents
failed to produce adequate evidence of her virginity, her accusing hus-
band would only be subject to whipping and fine if his suspicions were
proven false (Deut. 22:13-21).14 Perhaps the accusing husband would
have been subject to the death penalty if it was shown that he had
maliciously offered false testimony against his bride (Deut. 19:16-21),
another version of the lex talionis.15 There are no laws providing for pun-
ishment, let alone capital punishment, in the case of new husbands who
are later found to have “sown their wild oats” before marriage.

14
See Chapter Five, Section B.1.c.ii.(b). Compare the absence of any penalty or punish-
ment for the suspicious husband whose wife might be vindicated after undergoing trial
by ordeal in the form of the “cereal offering of jealousy” (Num. 5:11-31).
15
See Chapter VI.D.2. However, the “tokens of virginity” law of Deuteronomy 22:13-21
seems to presume good faith suspicion on the part of the accusing husband.
Impartial Judgment and Equal Protection of the Laws 79

4. Slaves
Clearly the concept of equal protection did not extend to the status of
slaves vis a vis free persons. Exodus 21:20 provided that a man who fatally
struck his male or female slave with a rod would be punished, but not, it
seems, subjected to the death penalty.16 Moreover, if the slave survived a
day or two, the owner would not be punished at all, “for the slave” was
“his money” (Exod. 21:21). None of the other homicide laws exempted
perpetrators from penalties if their victims did not die immediately.
Similarly, the CC’s law providing the death penalty for owners of oxen
that gored persons to death did not apply if the goring victim was a slave.
In that case, the ox’s owner would only be required to pay the slave’s
owner 30 shekels of silver, evidently the going market price for a slave
(Exod. 21:32). It may or may not be significant that these laws providing
unequal protection for slaves, all found in the CC, were not repeated in
the later law codes. Perhaps these laws were still considered to be in
effect. Or perhaps it may have been understood that they had been
abandoned or repealed sub silentio.

16
Compare Exodus 21:12-14, regarding free persons. But see Levine, “Capital Punishment”
(cited in Chapter Three, note 16), pp. 13–14. Westbrook, Studies (cited in Chapter Three,
note 13), pp. 89–100, on the basis of other ANE laws, proposes that the death penalty was
meant to apply in this circumstance.
Chapter 5

Capital Offenses

You shall not kill.


Exodus 20:13; Deuteronomy 5:17 (RSV)

You shall not murder.


Exodus 20:13; Deuteronomy 5:17 (NRSV)

Modern opponents and proponents of capital punishment, alike, often


turn to “the Bible” in order to support their respective viewpoints. Those
with either secular or religious “liberal” (or humane) concerns tend to
emphasize certain biblical texts that can be read to oppose the death
penalty, while “conservatives,” especially religious conservatives, often
advocate capital punishment, citing other biblical texts as authority.1
Biblical texts occasionally are even cited as authority in judicial opinions.2
This chapter does not undertake to resolve ongoing debates as to the
propriety or effectiveness of capital punishment.3 The purpose here,
rather, is to achieve a more complete and accurate understanding of

1
See, e.g., Glen H. Stassen, “Biblical Teaching on Capital Punishment,” and Jacob
J. Vellenga, “Is Capital Punishment Wrong?,” in Glen H. Stassen, ed., Capital Punishment:
A Reader (Cleveland: Pilgrim Press, 1998), pp. 119–136. Both articles are republished in
Daniel K. Judd, Taking Sides: Clashing Views on Controversial Issues in Religion (Guilford, CT:
McGraw-Hill/Dushkin, 2003), pp. 186–201. Citations below are to the 1998 publication.
See generally James J. Megivern, The Death Penalty: An Historical and Theological Survey
(New York/Mahwah, NJ: Paulist Press, 1997), pp. 9–19, noting certain problematic
aspects of biblical interpretation, and critiquing several contemporary treatments of
biblical passages as proof-texts favoring capital punishment. The fact that states such as
Texas and Florida which carry out the greatest number of executions are located in what
once was designated “the Bible Belt,” or Southern United States, may not be entirely
coincidental. See Chapter Seven, notes 33 and 74. And see Recinella, The Biblical Truth
(cited in Chapter Four, note 2), pp. 6–16.
2
See a collection of such citations by Michael Medina, “The Bible Annotated: Use of the
Bible in Reported American Decisions,” 12 N. Il. U. L. Rev. 187, 189–91, 195, 198–99,
202, 214, 216–18, 221, 226, 247 (1991).
3
Several law journal symposia on death penalty issues have been published in recent years.
See, e.g., 53 DePaul L. Rev. No. 4 (2004); 33 U. New Mex. L. Rev. No. 2 (2003); 86 Judicature
Capital Offenses 81

biblical perspectives and concerns in regard to the death penalty, in


contrast to understandings that rely primarily upon a few selected proof-
texts or slanted interpretations.
When relevant biblical laws and texts are understood both for what
they actually say and in their respective historical contexts, it can be seen
that biblical perspectives are more complicated than either modern
proponents or opponents of the death penalty usually recognize. More-
over, it will become evident that biblical laws provided a rather remarka-
ble array of due process protections for persons accused of capital
offenses. These due process provisions appear especially in some of the
later biblical law codes. Biblical texts relating to due process protection
have largely been ignored by both biblical and legal scholars.4 This topic
will be considered in Chapter Six.
The first part of this chapter reviews those biblical texts that have been
(or could plausibly be) read as repudiating or opposing capital punish-
ment. The next, and more extensive part discusses the many legal texts
that explicitly call for, or illustrate application of the death penalty.
Various rationales for capital punishment indicated in several texts set-
ting out capital offenses also are considered here.

No. 2 (2002); 81 Oregon L. Rev. No. 1 (2002); 29 Hofstra L. Rev. No. 4 (2001); and 33 Conn.
L. Rev. No. 3 (2001).
See also Jonathan Alter, “The Death Penalty on Trial,” Newsweek, June 12, 2000,
pp. 24–34; Hugo Adam Bedau and Michael L. Radelet, “Miscarriages of Justice in Poten-
tially Capital Cases,” 40 Stan. L. Rev. 21 (1987); Donald A. Cabana, Death at Midnight: The
Confession of an Executioner (Boston: Northeastern Univ. Press, 1996); Frank O.
Carrington, Neither Cruel Nor Unusual: The Case for Capital Punishment (New Rochelle, NY:
Arlington House, 1978); Thomas Draper, ed., Capital Punishment (New York: H. W. Wilson
Co., 1985); Samuel R. Gross, “Lost Lives: Miscarriages of Justice in Capital Cases,” 42
U. Mich L. Quad. Notes 82–94 (1999); Ernest van den Haag & John P. Conrad, The Death
Penalty A Debate (New York/London: Plenum Press, 1983); Kenneth C. Haas & James A.
Inciard, eds., Challenging Capital Punishment: Legal and Social Science Approaches (Newbury
Park: Sage, 1988); Michael L. Radelet, ed., Facing the Death Penalty: Essays on a Cruel and
Unusual Punishment (Philadelphia: Temple Univ. Press, 1989); Michael L. Radelet, Hugo
Adam Bedau, and Constance E. Putnam, In Spite of Innocence (Boston: Northeastern Univ.
Press, 1992); Gregory D. Russell, The Death Penalty and Racial Bias: Overcoming Supreme Court
Assumptions (Westport, CT: Greenwood Press, 1994); Glen H. Stassen, ed., Capital Punish-
ment: A Reader (Cleveland: Pilgrim Press, 1998); Lloyd Steffen, Executing Justice: The Moral
Meaning of the Death Penalty (Cleveland: Pilgrim Press, 1998); and articles in Phi Kappa Phi
Forum 82, 1 (Winter, 2002), 19–27. Many such studies, of course, evaluate the effectiveness
or propriety of capital punishment without reference to biblical texts or norms.
4
But see Steven A. West, “Scripture Can Advocate Capital Punishment,” 12 Christian Legal
Soc. Quarterly 9, 11-12 (no. 3, 1991), describing certain biblical provisions as “due pro-
cess” protections. See also Good, “Capital Punishment” (cited in Chapter Three, note
13), pp. 972–74 (1967). Good discusses certain “procedural requirements in capital
cases” found in Ancient Near Eastern (ANE), including biblical, law, though not in terms
of “due process” procedures or protections.
82 Justice and Compassion in Biblical Law

Narrative traditions and other biblical writings often presuppose or


apply various laws relating to the death penalty. Such writings also are
examined here with a view to their likely dating and historical setting.
Proceeding in this manner makes it possible to trace certain develop-
ments or changes in law within the biblical period. It will be seen that
some laws appear to have been modified or qualified in the course of
time, and that new laws evidently were added while others, if not repealed
or abandoned, were no longer included in later codes or instanced in
later narrative traditions.

A. Against Capital Punishment

Several texts have been interpreted to mean that people—at any rate,
the people of Israel—should never kill other people under any circum-
stances. Those who harm others should be forgiven, and even murderers
should be permitted to live, whether banished or as fugitives in exile.
At any rate, retribution, if called for, should be left to the Almighty.
At the outset, it is to be observed that reading or translating biblical
language necessarily often involves some degree of interpretation. The
old Episcopal Book of Common Prayer, for instance, rendered the
Decalogue’s Sixth Commandment narrowly: “Thou shalt do no mur-
der.”5 On the other hand, the more literal, modern Revised Standard
Version translates the same text without qualification, “You shall not
kill.” Some interpreters have urged that this “commandment” was
intended or understood to prohibit capital punishment.6 Perhaps it was;

5
The Book of Common Prayer, p. 69 (New York: Harper & Bros, 1944) (1928). See also the
New Revised Standard Version, Exod. 20:13 and Deut. 5:17: “You shall not murder”; the
New English Bible (same verses): “You shall not commit murder”; and the Revised Eng-
lish Bible (same verses): “Do not commit murder.”
6
See, e.g., Ramsey Clark, Crime in America: Observations on Its Nature, Causes, Prevention, and
Control (New York: Pocket Books, 1970), pp. 314–15, and Millard Lind, The Sound of Sheer
Silence and the Killing State (Telford, PA: Cascadia Publishing House, 2004), pp. 52–53,
implying that the Sixth Commandment can be so read; See also Gerald J. Blidstein,
“Capital Punishment: The Classic Jewish Discussion” in Stassen, ed., Capital Punishment
(cited above in note 3), pp. 107–17, observing that in Hebrew and in Rabbinic inter-
pretation, the verb “to kill” (razach) used in the Sixth Commandment does not distinguish
between justifiable homicide and murder. Compare Walter Harrelson, The Ten Com-
mandments and Human Rights (Philadelphia: Fortress Press, 1980), p. 108: “There can be
no question . . . of our Sixth Commandment’s having the initial meaning that human
life is never, under any circumstances, to be taken by another human being or by the
appointed authorities in Israel.” And see extensive discussion by Lloyd R. Bailey, Capital
Punishment: What the Bible Says (Nashville: Abingdon Press, 1987), pp. 44–48, proposing
Capital Offenses 83

however, it is not certain which translation more closely represents the


original “legislative intent.”
Various texts suggest that it was understood that offenders might or
should be spared alive. Cain, the first murderer, was not sentenced to
death. Rather, he was condemned to be “a fugitive and a wanderer on the
earth” (Gen. 4:14).7 Moreover, as the story is told, YHWH “marked” Cain8
in some visible manner to protect him from any would-be, self-help aveng-
ers (Gen. 4:15).9 The author of Proverbs 28:17 advised that anyone who
was “burdened with the blood of another” should be allowed (or con-
demned) to “be a fugitive until death.” In effect, these texts suggest that
murderers were to receive a life sentence as fugitives or exiles.10 As his
story continues, Cain had a wife and children, and “built a city” (Gen.
4:17). It may be inferred from his descendant Lamech’s braggadocio, that
afterwards someone did kill Cain, and that YHWH then made good on his
warning of seven-fold vengeance against Cain’s killer.11 A story found in 2
Samuel 14:1-11 shows that during the time of the monarchy, a king might
spare the life of a murderer if, as a mitigating factor, his execution would
leave his parents without any heir, and a sequel to this scene shows that a
murderer might be allowed to live indefinitely under house arrest.12
Frequently biblical prophets called on their contemporaries to turn
from their transgressions in order that God might spare, rather than
destroy them. Thus for example, Amos 5:14-15:

that the Sixth Commandment “forbids premeditated, malicious violence,” but does not
bar execution for capital offenses.
7
See discussion by Recinella, Biblical Truth (cited in Chapter Four, note 2), pp. 41–46. As
to various critical issues presented in the story of Can and Abel, see Barmash, Homicide
(cited in Chapter Four, note 6), pp. 12–19.
8
The nature of this “mark” is not indicated; but clearly it was intended to protect Cain, and
was not part of his punishment. Compare Nathaniel Hawthorne’s The Scarlet Letter.
9
See Julian H. Wright, Jr., “Pardon in the Hebrew Bible and Modern Law,” 3 Regents U. L.
Rev. 1, 16 (1993): “The first act of ‘executive clemency’ in the Hebrew Bible occurs in
Genesis when God commutes the sentence given to the first murderer, Cain.” In the
story as told, however, there was no death sentence to “commute.” Likewise, Stassen
overstates his point when he comments that the Torah (or Biblical law) “forbids the death
penalty for the prototype of all murderers, Cain who killed his brother Abel . . .” Stassen,
“Biblical Teaching” (cited above in note 1), p. 120. Stassen correctly points out that Cain
as well as Moses and David were not subjected to the death penalty for murders they
committed. Id. Other biblical figures likewise spared could be mentioned as well, such
as Absalom and Solomon.
10
Thus, e.g., Gardner C. Hanks, Against the Death Penalty: Christian and Secular Arguments
Against Capital Punishment (Scottdale, PA: Herald Press, 1997), p. 26.
11
Gen. 4:23-24; cf. Gen. 4:15.
12
See Chapter Three, Section C.
84 Justice and Compassion in Biblical Law

Seek good, and not evil, that you may live; and so YHWH, the God of
hosts, will be with you, just as you have said, Hate evil, and love good,
and establish justice in the gate; it may be that YHWH, the God of
hosts, will be gracious to the remnant of Joseph.13

Several biblical texts urge that people were not to seek or execute
vengeance against others. The Apostle Paul construed earlier biblical
tradition in his classic admonition:

Beloved, never avenge yourselves, but leave room for the wrath of God;
for it is written, “Vengeance is mine, I will repay, says the Lord.” (Rom.
12:19)14

This text does not authorize humans to act as avenging agents of the
Almighty; on the contrary, any and all vengeance is to be left to God.
The biblical text Paul apparently had in mind was Deuteronomy 32:35:
“Vengeance is mine and recompense . . .”15 Other biblical texts likewise
characterize vengeance as a proper basis for God’s or YHWH’s actions
against the unrighteous or ungodly,16 implying, arguably, that humans—at
any rate, God’s people—should refrain from taking vengeance themselves.
More typically, biblical texts refer to God or YHWH as the Judge who,
in times past, justly punished the wicked for their depravity, and could be
expected to do so again in or at the end of history. Classic stories of such
past actions include the flood saga (Genesis 6–9);17 the Sodom and
Gomorrah narrative (Gen. 18:16–19:25); and the Deuteronomic Histori-
an’s commentary on the demise of the kingdom of Israel.18 It was also
believed that YHWH or God judged and would judge nations and
individuals in the future as well.19

13
See also, e.g., Jer. 4:1-4; Ezek. 18:21-32 and Amos 5:6-7.
14
See also Heb. 10:30.
15
See also Prov. 20:22: “Do not say, ‘I will repay evil’; wait for YHWH and he will help you.”
And see Sir. 28:1 (RSV), “He that takes vengeance will suffer vengeance from the Lord.”
Also see Lev. 19:18: “You shall not take vengeance . . . against any of your people.”
16
See, e.g., Lev. 26:25; Mic. 5:15; Sir. 39:28-31.
17
See esp. Gen. 6:5 (RSV): “YHWH saw that the wickedness of man was great in the earth,
and that every imagination of the thoughts of his heart was only evil continually.”
18
2 Kgs 17:1-20.
19
See, e.g., Exod. 22:21-24 (individuals); Exod.. 34:6-7 (individuals); 2 Sam. 12:7-12
(Nathan’s pronouncement against King David); Mic. 4:1-4 (nations); Jer. 2:33-35
(unrighteous individuals); Ezek. 7:1-27 (the nation Judah). See also Pss. 9:7-8; 10:15-18;
96:10-13; Prov. 22:22-23; Sir. 16:6-14; 35:12-20.
Capital Offenses 85

Some biblical texts imply that divine justice is self-executing without


explicit reference to God as Judge. Such texts declare that in this life the
righteous are rewarded, typically with longevity and wealth, while the
wicked either are cut off in the midst of their sinning, or otherwise come
to grief.20 Somewhat later, perhaps, the author of Wisdom of Solomon
urged that the righteous would be vindicated and the wicked punished in
the next life if not this one.21 Texts which maintain that God judges or will
judge those who do wrong could be read to mean that his people should
refrain from condemning others—how much more from administering
the death penalty—and should leave it to God to execute vengeance or
retribution upon those so deserving. Moreover, according to Ezekiel,
God preferred that offenders change their ways rather than perish:

But if a wicked man turns away from all his sins which he has commit-
ted and keeps all my statutes and does what is lawful and right, he shall
surely live; he shall not die. None of the transgressions which he has
committed shall be remembered against him, for the righteousness
which he has done he shall live. Have I any pleasure in the death of the
wicked, . . . and not rather that he should turn from his way and live?
(Ezek. 18:21-23 RSV)22

In this vein, Sirach 27:30–28:7 commended forgiveness and mercy, and


renunciation of enmity, anger and wrath. In the New Testament, Jesus
called on his hearers to refrain from judging others (Mt. 7:1-2; Lk. 6:37),
and to forgive others’ offenses (Mt. 6:14-15; 18:35; Mk 11:25-26). He
warned that it was not enough to keep the Sixth Commandment, “You
shall not kill.” People should also refrain from being angry with or insult-
ing others (Mt. 5:21-22). In the story of the woman who had been

20
See, e.g., Ps. 37; Prov. 2:20-22; 10:3-4, 7, 30; 11:17-19; 12:7, 21.
21
Wisdom of Solomon 1:16–5:23; See also Dan. 12:1-3. Similar hopes and expectations are
expressed in 2 Esdras and many New Testament writings.
22
See also Ezek. 18:27-28, 31-32; and 33:11-16, where Ezekiel says much the same as in the
quotation above in the text. Stassen urges that in practice, even during biblical times, the
death penalty was gradually if not progressively abandoned: “One almost never hears of
it in the Prophets and the Writings . . .,” Stassen, “Biblical Teaching” (cited above in note
1), p. 127. On the other hand, Vellenga insists that the prophets “were opposed to laws
being flouted and criminals not being punished.” Vellenga, “Is Capital Punishment
Wrong?” (cited above in note 1), p. 133. To substantiate this claim, Vellenga quotes
Isaiah 59:14-18. Id. This text accords with others, affirming that vengeance is YHWH’s.
See above, notes 14–16 and accompanying text. But the Isaiah text does not, in its terms,
refer to, much less, endorse capital punishment by human agency.
86 Justice and Compassion in Biblical Law

“caught” in adultery,23 Jesus seems to countermand or over-rule the “law


of Moses.”24 Under that law, adultery was a capital offense; both the
adulterer and adulteress were to be executed. According to John 8:5,
Mosaic law required that the woman be stoned to death.25 But Jesus’
response was, “Let him who is without sin among you be the first to throw
a stone at her” ( Jn 8:7 RSV). Jesus did not pronounce the woman for-
given, but stated that he did not condemn her, admonishing her not to
“sin again.”26 Would Jesus have said the same to a person convicted of
murder? There is no New Testament case on point.27
From these texts, it certainly can be argued that at least some biblical
figures or writers opposed capital punishment. Judgment should be left
to God, who preferred that offenders be permitted to live, so that they
might turn around or repent; or at any rate live out their lives as exiles or
fugitives. On the other hand, a great many texts rather clearly authorized
and ordained capital punishment for a wide range of offenses.

B. Capital Offenses and Rationales for


Executing Offenders

Although many biblical texts and traditions commonly cited by death pen-
alty proponents do not, in fact, advocate or illustrate capital punishment,28

23
Jn 8:1-11, according to some manuscripts. See also Mt. 1:18-19, discussed below in note 153
24
Probable reference is to Lev. 20:10 and Deut. 22:22.
25
Stoning is specified in Deut. 22:23-24 in a somewhat different context, but not in Lev.
20:10 or Deut. 22:22. In the Johannine story, nothing is said about punishing the
adulterer.
26
See generally, Hanks (cited above in note 10), p. 41; Levine, “Capital Punishment”
(cited in Chapter Three, note 16), p. 29.
27
Barabbas, who, according to two gospel accounts had committed murder, was spared
execution under Roman law: Mk 15:6-15; Lk. 23:18-25. See generally Edward McG. Gaff-
ney, Jr., “Scripture Does Not Advocate Capital Punishment,” 12 Christian Legal Soc.
Quarterly 9 (n. 3, Fall 1991) (arguing in effect that New Testament texts qualify if not
overrule Old Testament capital laws). But see Bailey, Capital Punishment (cited above in
note 6), pp. 47–83, urging that the New Testament in no way repudiates or delimits bibli-
cal laws requiring capital punishment. Some Christian commentators also oppose the
death penalty as applied in the United States on the basis of their understandings of
faith and ethics, without direct reference to biblical texts. See, e.g., Timothy W. Floyd,
“What’s Going On?: Christian Ethics and the Modern American Death Penalty,” 32 Texas
Tech. L. Rev. 931 (2001).
28
See, e.g., comments by death penalty advocates quoted in Irene Merker Rosenberg and
Yale L. Rosenberg, “Lone Star Liberal Musings on ‘Eye for Eye’ and the Death Penalty,”
1998 Utah L. Rev. 505, 539 (1998); Vellenga (cited above in note 22); and Megivern on
use of Gen. 9:5-6, quoted below in note 129. For further discussion of uses and misuses
of biblical texts in capital trials in the United States, see Gary T. Simson & Stephen
P. Garvey, “Knockin’ on Heaven’s Door: Rethinking the Role of Religion in Death
Penalty Cases,” 86 Cornell L. Rev. 1090, 1091, 1109–25 (2001).
Capital Offenses 87

a great many biblical laws do enumerate capital offenses.29 Additionally,


various narratives, including a few trial scenes, report executions with
evident approval. The types of offenses subject to the death penalty will be
described first. Explicit biblical theories or rationales for capital punish-
ment will then be considered. As will be seen, many biblical laws calling for
capital punishment are grounded upon conviction that all human lives are
of great value.

1. Capital Offenses in Biblical Laws and Narratives


Modern scholars generally agree that biblical law was codified in several
stages during the long history of Israel, Judah, and the Jewish people,
between c. 1200 and 400 BCE. Capital offenses found in each code will
be identified and described beginning with the earliest and coming
down to more recent codes.30 This procedure makes it possible to trace
several developments in the law.31 Generally capital laws set out in a given

29
See Elie Spitz, “The Jewish Tradition and Capital Punishment” in Elliot N. Dorff and
Louis E. Newman, eds., Contemporary Jewish Ethics and Morality: A Reader (New York:
Oxford Univ. Press, 1995), p. 344: “Capital punishment was not an ethical problem in
the Bible. Indeed, it was a commanded punishment for a whole range of offenses, from
witchcraft to striking a parent to murder.” And see Gardner C. Hanks, Capital Punishment
and the Bible (Scottsdale, PA: Herald Press, 2002), pp. 53–54, listing numerous biblical
capital offenses. On the other hand, early and subsequent rabbinic tradition interpreted
such texts so as to make it difficult if not impossible to justify capital punishment. See,
e.g., Haim Heymann Cohn, Human Rights in Jewish Law (New York: KTAV, 1984), p. 217;
Aaron Kirschenbaum, “The Role of Punishment in Jewish Criminal Law: A Chapter in
Rabbinic Penological Thought,” in Martin P. Golding, ed., Jewish Law and Legal Theory
(New York: New York Univ. Press, 1993), pp. 451–474; and Irene Merkel Rosenberg and
Yale L. Rosenberg, “The Legacy of the Stubborn and Rebellious Son,” 74 Mich. L. Rev.,
1163–65 (1976). For an alternative perspective on rabbinic death penalty jurisprudence,
see Beth A. Berkowitz, Execution and Invention: Death Penalty Discourse in early Rabbinic
and Christian Cultures (Oxford Univ. Press, 2006), proposing that the rabbis’ concern was
to advance their own status and authority by depicting an imaginary world where they
could impose the death penalty on those who failed to accept their interpretations of
the Torah.
30
See generally Roland de Vaux, Ancient Israel: Its Life and Institutions (New York: McGraw
Hill, 1961), p. 158 (listing categories of capital offenses).
31
See in this connection, Raymond Westbrook’s observation at the conclusion of his
magisterial study of Biblical and Ancient Near Eastern law:
[B]iblical law is neither a mass of internal contradictions nor a monolith, but reflects
a single, coherent common law, upon which different opinions were expressed.
These opinions coincide, not surprisingly, with the major sources identified by mod-
ern biblical criticism.
Raymond Westbrook, Studies in Biblical and Cuneiform Law, Cahiers de la Revue Biblique
no. 26 (Paris: J. Gabalda, 1988), p. 135. As to connections between biblical and other
ANE capital laws, see Raymond Westbrook, “A Matter of Life and Death,” JANES 25
(1997), 61–70. Compare studies that simply describe or list capital laws without
88 Justice and Compassion in Biblical Law

code share significant features or concerns. For this reason, each code’s
capital laws will be considered together. Similar laws, modifications, and
new laws found in subsequent codes will then be examined. For purposes
of this study, biblical law codes are understood to have been set down in
the following sequence: first the Ritual Decalogue (RD), then the Covenant
Code (CC), followed by the Deuteronomic Code (D), the Holiness Code
(H), the Revised Deuteronomic Code (RDC), and finally, the Priestly
Code or laws (PC).32 New offenses are added in each of the later codes,
while most of those promulgated earlier are omitted (though never
formally repealed) or modified.33 Other biblical writings, particularly
narratives, occasionally illustrate codified laws.34 In some instances,
statutory penalties may have been mitigated in practice.

a. The “Ritual Decalogue”: Exodus 34:17-28


The earliest identified code, the “Ritual Decalogue” (RD), found in
Exodus 34:17-28,35 may date from as early as the 13th century BCE.

attempting to note connections or developments. See, e.g., Robert M. Bohm, Deathquest:


An Introduction to the Theory and Practice of Capital punishment in the United States
(Cincinnati: Anderson, 1999), pp. 177–80; Mark Costanzo, Just Revenge: Costs & Conse-
quences of the Death Penalty (New York: St. Martin’s Press, 1997), p. 130; Hanks, cited above
in note 29; and Vernon W. Redekop, A Life for Life? The Death Penalty on Trial (Scottdale,
PA: Herald Press, 1990), pp. 25–27.
32
See above, Introduction to this book. As to various law codes, see generally, David Daube,
Studies in Biblical Law (New York: KTAV, 1969), pp. 74–101; and the classic, Julius
Wellhausen, Prolegomena to the History of Ancient Israel [1878] (New York: Meridian, 1957).
Modern scholars diverge as to the dating, characteristics, and even the existence of
biblical law codes. The system of codes identified in this book provides a convenient
framework for classifying and analyzing biblical law, but must be considered tentative.
33
Albrecht Alt, some decades ago, proposed that “apodictic” laws (typically beginning
“Thou shalt . . .” or “Thou shalt not . . .”) should be distinguished from “casuistic” laws
(formulated, e.g., “When a man . . .” or “Whoever . . .”). See Albrecht Alt, “The Origins
of Israelite Law” [1934], reprinted in Albrecht Alt, Essays on Old Testament History and
Religion (Garden City: Doubleday/Anchor, 1968), pp. 101–71. Alt urged that only laws
set out in the apodictic format should be considered genuinely Israelite, and that the
casuistic laws were borrowed or adapted from Canaanite or other Ancient Near Eastern
sources. Alt’s thesis has been accepted by many, but criticized by other scholars. See, e.g.,
Theophile James Meek, Hebrew Origins (Harper & Row, 1960), pp. 72–81. For purposes
of this study, all biblical laws, whatever their possible or putative ANE parallels or origins,
are assumed to represent concerns of the Israelite communities that drafted or selected,
and then perhaps modified them for inclusion in their collections of statutory law.
34
One modern scholar has suggested that, conversely, most or all biblical laws were devel-
oped relatively late in the biblical period, in response to situations described in earlier
biblical narratives. See Calum M. Carmichael, Laws and Narratives in the Bible (Ithaca:
Cornell Univ. Press, 1985) pp. 210–24, and Biblical Laws of Talion (Oxford Centre for
Postgraduate Hebrew Studies, 1986) pp. 21–39.
35
See generally, Klaus Koch, The Growth of the Biblical Tradition: The Form-Critical Method
(New York: Scribner’s, 1969), pp. 48–51.
Capital Offenses 89

This code enumerates a series of prohibitions, several of which are


repeated in later codes which in some instances provide that violators
are to be executed. The RD itself, however, includes no mention of
capital punishment or any other penalties. It may have been understood
that those who committed these offenses would be subject either to
divine retribution or to retaliation at the hands of victims’ relatives.

b. The Covenant Code: Exodus chapters 20–23


Nearly as early, perhaps, was the Covenant Code or Book of the
Covenant, an extensive codification of Israelite law, found in Exodus
20–23.36 It begins with the Decalogue or “Ten Commandments,” Exo-
dus 20:2-17, which may have been recorded earlier.37 Like the Ritual
Decalogue, the Decalogue itself includes no penalty provisions. Several
capital offenses are set out elsewhere in the CC, however, notably in
Exodus chapters 21 and 22.

i. Exodus 21:12-14: homicide, premeditated and otherwise


The first capital offense mentioned in the CC is homicide (Exod. 21:
12-14): “Whoever strikes a man so that he dies shall be put to death.” This
law goes on, however, to distinguish between premeditated murder, when
“a man willfully attacks another to kill him treacherously,”38 and unpre-
meditated, though apparently intentional homicide, when the offender
“did not lie in wait for [the victim], but God let him fall into his hands.”
Some interpreters read this language to mean negligent or accidental
homicide.39 That category appears later in Deuteronomy 19:4-10 and

36
See generally, Anthony Phillips, Ancient Israel’s Criminal Law (New York: Schocken,
1970), pp. 158–61.
37
Another version of the Decalogue is to be found in Deut. 5:6-21. It need not be deter-
mined here whether the Decalogue was codified prior to or apart from the larger codes
with which it is now associated. On the Decalogue, see generally, Ben-Zion Segal &
Gershon Levi, eds., The Ten Commandments in History and Tradition ( Jerusalem: The
Magnes Press, Hebrew Univ., 1990); Walter Harrelson, The Ten Commandments and
Human Rights (Philadelphia: Fortress Press, 1980); and Koch, Growth (cited above in
note 35), pp. 44–51.
38
We see here the equivalent of “malice aforethought,” an element of first degree murder
in modern criminal law. See Wayne R. LaFave, Criminal Law, 3rd edn. (St. Paul: West
Group, 2000), pp. 653–55, 692–98. As to counterparts in Ancient Near Eastern (ANE)
or cuneiform law, see Good, “Capital Punishment” (cited in Chapter Three, note 13),
pp. 951–53, and Westbrook, Studies (cited above in note 31), pp. 47–49.
39
See, e.g., George E. Mendenhall, Law and Covenant in Israel and the Ancient Near East
(Pittsburgh: Biblical Colloquium, 1955), p. 16. In modern criminal jurisprudence, this
90 Justice and Compassion in Biblical Law

Numbers 35:9-15, but is not indicated here.40 This language seems to


refer to a chance encounter with an enemy, rather than to a fatal attack
prompted by sudden “heat of passion.”41 The opportunistic or chance
homicide perpetrator is seen as a less serious offender; he may flee to a
designated sanctuary, presumably to escape self-help revenge at the
hands of the victim’s friends and relatives, and there await further pro-
ceedings.42 The willful or premeditated murderer, on the other hand,
was to suffer the death penalty (Exod. 21:14).

ii. Negligent homicide


Conduct or inaction unintentionally resulting in loss of human life was
subject to the death penalty in two particular circumstances. Arguably
both situations involve culpable negligence. At any rate, both call in
effect for strict liability when the offender’s conduct violates the terms of
the respective statutes. These situations have already been considered in
Chapter One as illustrations of biblical tort law. They also can be seen as
involving aspects of criminal law.

(a) Exodus 21:22-25: a married, pregnant woman harmed by


brawling males
One kind of situation would arise if a married, pregnant woman suffered
miscarriage and died after being struck by one of two (or more) brawling
males. The man responsible for the fatal injury was to be put to death:
“[Y]ou shall give life for life . . . ” (Exod. 21:22-23).43 This provision is the

offense could be regarded as second degree murder. See LaFave, Criminal Law (cited
above in note 38), pp. 698–99.
40
Carmichael, following Daube, attributes to the Exodus law what he calls a “more
profound religious view of accidental homicide”: “[T]he visible agents of a killing—
hand, axe, stone—are equally directed by the ultimate mover, and the matter is
fundamentally equated with accident in which no human cause is discerned at all.”
Calum M. Carmichael, The Laws of Deuteronomy (Ithaca: Cornell Univ. Press, 1974),
p. 113. See also Falk, Religious Law (cited in Chapter Four, note 6), p. 58: “The responsi-
bility for killing another human being could not extend to cases which were actually acts
of God, i.e., where God had ‘let the victim fall into the hand of the person who caused
the death.’” Modern jurisprudence characterizes as “acts of God” only those
accidents that involve no human agency, or at any rate no foreseeability or duty of care.
It is not at all clear that Exod. 21:12-14 refers to accidental homicide. See Sections B.1.e.i.
and B.1.f.ii. of this chapter.
41
In modern criminal jurisprudence, such homicide is generally classified as voluntary
manslaughter. See LaFave, Criminal Law (cited above in note 38), pp. 703–17.
42
Exod. 21:13. See Chapter Six, Section A.
43
In the Code of Hammurabi, HC 209, 210, under these circumstances, the daughter of the
person who caused the fatal injury was to be put to death. In the biblical law, there is no
Capital Offenses 91

earliest instance of the commonly so-called biblical “lex talionis,” or law of


retribution in kind.44 If the woman died, even though the responsible
male did not intend her death, he is held strictly liable for the conse-
quences of his conduct. This law implies an irrebuttable presumption
that such conduct was reckless or otherwise culpable.45 Under its terms,
if the pregnant woman is permanently injured, but does not die, the
man responsible for the injury is to have the same kind of injury inflicted
upon him: “eye for eye, tooth for tooth . . . ” In such cases, the death
penalty is not to apply. If the woman survives and is not permanently
impaired, the brawling male responsible for the miscarriage is subject to
civil liability in the form of a fine, rather than to the lex talionis. In its
terms, this law does not apply if the victim was pregnant but unmarried,
or married but not pregnant.

(b) Exodus 21:28-32: Failure to confine a goring ox with a bad history


The other circumstance involves death at the horns of another’s goring
ox (Exod. 21:28-32). An ox that gores a man, woman, or child to death
is to be killed.46 Moreover, the ox’s owner must be put to death “if the ox
has been accustomed to gore in the past, and [the] owner has been
warned, but has not kept it in” (Exod. 21:29 RSV). Here the death pen-
alty is applied because the owner knowingly failed to take appropriate
measures to prevent foreseeable risk of fatal harm. Evidently the owner
would not be subject to the death penalty if he knew of the ox’s goring
proclivity, unless he also had been warned.47 However, this law allows two
exceptions. One is that, at the option of the victim’s relatives or repre-
sentatives, the culpable owner may be required to pay compensation
instead of being put to death.48 In that case, however, he must pay

mention of the offender’s daughter, and it may be assumed—though it is not specifically


stated—that the offender himself was the person subject to the death penalty.
44
See Chapter Six, Section D.2. For other ANE parallels, see Good, “Capital Punishment”
(cited in Chapter Three, note 13), pp. 953–54.
45
The implicit rationale is that risk of harm was foreseeable: the man should have known
better than to take part in brawling in the vicinity of a pregnant woman. See Levine,
“Capital Punishment,” (cited in Chapter Three, note 16), pp. 14 (referring to “the gross
negligence and indifference to human life exhibited by the fighting men”).
46
The ox is to be stoned to death, but its flesh is not to be eaten. As to various rationales
for these procedures see Westbrook, Studies (cited above in note 31), pp. 83–88, and
Theodor H. Gaster, Myth, Legend and Custom in the Old Testament (Glouster, MA: Peter
Smith, 1981), vol. 1, pp. 243–50.
47
The text does not indicate whether such warning was to have been given officially, e.g.
by one of the local elders, or by any person in the community.
48
Exod. 21:30-31. As to Canaanite and Babylonian parallels and influence, see Meek,
Hebrew Origins (cited above in note 33), pp. 70–71, and Westbrook, Studies (cited above
92 Justice and Compassion in Biblical Law

“whatever is laid upon him” for the “redemption of his life” (Exod.
21:30). In modern terms, the victim’s relatives may seek damages in tort
rather than the offender’s death at the hands of the criminal justice
system.49 The other exception obtained only if the gore victim is a slave
(whether male or female). In that case, the ox’s owner is to pay the slave’s
master 30 silver shekels in damages.50

iii. Exodus 22:2-3: killing the night-time intruder


Homicide or killing a man in one other special circumstance also may
have been considered a capital crime. When a property owner strikes a
burglar (understood, as at common law, to mean a thief or robber who
enters the premises at night)51 and the burglar dies, “there shall be no
blood guilt” (Exod. 22:2 RSV). The fact that it was night-time excuses the
killing.52 However, “if the sun has risen upon” the intruder, “there shall be
blood guilt for him” (Exod. 22:3 RSV). Here even the life of the burglar is
understood to be valued. Whether the property owner who killed the day-
light intruder would then be subject to the death penalty is not explicitly
stated. Perhaps a fine or compensatory damages could be paid, or a sacri-
ficial offering presented instead. The fact that no specific penalty was pre-
scribed could mean that the judges or court might exercise discretion.53

in note 31), pp. 57–61.


49
It could have been presumed that negligent tort-feasors generally would rather pay
substantial damages than be executed. See Prov. 13:8a (RSV): “The ransom of a man’s
life is his wealth.” As to ransom as an option to killing the murderer in cuneiform law,
see Westbrook, Studies (cited above in note 31), pp. 49–55.
50
Exod. 21:32. Compare Exod. 21:20: If a man strikes his slave (male or female) with a rod,
and the slave dies subsequently as a result, the slave owner is to be “punished,” but
evidently not subjected to the death penalty. But see Levine, “Capital Punishment”
(cited in Chapter Three, note 16), pp. 13–14, contending that Exod. 21:20 meant that
the slave’s master would be subject to the death penalty if the slave died immediately.
51
See Wayne R. LaFave and Austin W. Scott, Jr., Handbook on Criminal Law (St. Paul:
West Publishing Co., 1972), pp. 713–14. For ANE parallels, see Westbrook, “Matter”
(cited above in note 31), p. 62.
52
The rationale may have been either that the nocturnal robber’s crime was more serious,
since the sleeping householder would be vulnerable to assault; or that the property
owner, unable to see clearly whether the intruder was armed, would be entitled to act in
self-defense. See Falk, Law and Religion (cited in Chapter Four, note 6), pp. 124–25; also
his Religious Law (cited in Chapter Four, note 6), p. 60: “The justification for killing a
thief who was caught while breaking in at night is based on the right of self-defense, but
also on the probability of violence against the owner of the home.” Surprisingly,
perhaps, no biblical law explicitly provides for the “self-defense defense” in cases of
homicide or other violent offenses. The availability of this legal defense may or may not
have been presumed in ancient Israelite or Near Eastern common law.
53
Cf. Deut. 25:1-3; Ezra 7:25-26. Compare Levine, “Capital Punishment” (cited in
Chapter Three, note 16), p. 15: “It is doubtful whether this law actually mandates the
Capital Offenses 93

iv. Exodus 21:15, 17: striking and cursing parents


Two laws make offenses against parents capital crimes: either striking or
cursing one’s father or one’s mother (Exod. 21:15, 17).54 Both implicitly
involve violations of the Fifth Commandment, “Honor your father and
your mother” (Exod. 20:12). Such violation may have been thought so
extreme as to imperil Israelite society.55 The prohibition against striking
parents would, of course, function to protect them from physical harm.
Cursing parents would show disrespect and could have been thought
likely to cause them both emotional and physical harm. The verb trans-
lated to “curse” might also mean to “degrade” or “shame.”56 Neither law
mentions any age limitation that might excuse a youthful offender.

v. Exodus 21:16: kidnapping


This law includes certain particular elements: “Whoever steals a man,
whether he sells him or is found in possession of him, shall be put to
death” (RSV). Here “man” (Heb. ’ish) could have been understood to
include any person, whether man, woman, or child, and may therefore
better be translated as “person” instead.57 Implicitly, kidnapping was a
way of obtaining slaves who could then be sold or kept as such.58 This law
makes no distinction between kidnapping Israelites or foreigners, or
between selling them to other Israelites or to foreign buyers outside the
community.59 In its terms, the death penalty would not apply if the
person stolen had later been given away or set free.

vi. Exodus 22:18-20: other capital offenses


Exodus 22:18-20 lists three additional capital crimes. It is unclear why
these three are separated from the other capital offenses found earlier in

death penalty. More likely, the case could be disposed of in less severe ways.”
54
As to cursing parents, see also Lev. 20:9, considered in Section B.1.d.ii(a) of this
chapter.
55
Exodus 20:12 implies that failure to observe the Fifth Commandment could shorten
Israel’s tenure in the promised land.
56
See Levine, “Capital Punishment” (cited in Chapter Three, note 16), p. 13. As to possi-
ble tangible harm resulting from cursing, see below, note 93.
57
The New Revised Standard Version so translates this text. Compare Good, “Capital Pun-
ishment” (cited in Chapter Three, note 13), p. 953 (“. . . ‘ish . . . can only mean male”).
58
Cf. Deuteronomy 24:7 (making it a capital offense to steal a fellow Israelite and either
treat him as a slave or sell him).
59
Compare Phillips, Criminal Law (cited above in note 36), pp. 130–31. Phillips finds these
distinctions implicit in the text.
94 Justice and Compassion in Biblical Law

the Covenant Code. Possibly the several laws providing for restitution
(damages, including multiple damages) in cases of stolen or damaged
property found in Exodus 22:1, 4, 5-17 were inserted into an earlier
compilation of capital offenses. Textual problems at the beginning of
Exodus chapter 22 suggest that some material may have been added or
interpolated here. The three are as follows.

(a) Exodus 22:18: sorcery


The first of these laws states, without further elaboration, “You shall not
permit a sorceress to live” (Exod. 22:18 RSV). According to the account
in 1 Samuel 28:3-25, King Saul had attempted to deport all mediums and
wizards, and any who remained did so at peril of his or her life (1 Sam.
28:3, 9). This story, which seems to reflect favorably on the female
medium (or “witch”) at Endor, suggests that at least in Saul’s time,
a sorceress might nevertheless live—provided she either left the country
or discontinued publicly practicing her art. At any rate, the story instances
an occasion when the severity of the Exodus 22:18 provision was
mitigated in practice.

(b) Exodus 22:19: “buggery” or “bestiality”


Exodus 22:19 makes what was known in earlier Anglo-American law as
one form of “buggery” a capital crime: “Whoever lies with an animal
shall be put to death.” The term “whoever” appears to mean either male
or female.60 Here there is no provision for the death of the “beast.”
Sodomy is not mentioned in the CC. No reports of either buggery or its
punishment are to be found anywhere in biblical tradition.

(c) Exodus 22:20: sacrificing to other gods


Several later biblical laws make allotheism, or the worship of other gods,
a capital offense. Possibly the last capital crime listed in the CC is that of
sacrificing to any god other than YHWH. Those who do so “shall be utterly
destroyed” (Exod. 22:20 RSV). This may mean, as in Exodus 22:21-24,
that YHWH himself would destroy such persons;61 but more likely, as in

60
Cf. Lev. 20:15-16, considered in Section B.1.d.ii.(a) of this chapter. Good, “Capital
Punishment” (cited in Chapter Three, note 13), pp. 960–61, identifies provisions in the
Hittite Code that make male intercourse with certain beasts a capital offense.
61
According to Exodus 22:21-24, which follow, YHWH or God says that he will kill any
Israelite who afflicts widows or orphans, and also, perhaps, any who wrong or oppress
strangers. It is not said, explicitly, that Israelites or their agents should execute such
allotheists.
Capital Offenses 95

Exodus 22:18 and 19, the meaning is that the Israelite community or its
representatives were to apply the death penalty.62

c. The Deuteronomic Code: Deuteronomy 5, 20–25


This collection of laws was early recognized as (and thus named) the
“second” law code. It includes a few laws found in the CC and adds many
more. Initially, it may have been written down between 1100 and 1000
BCE.63 Several provisions, particularly those calling for sacrificial wor-
ship in only one place (viz., Jerusalem) and various accommodations to
that requirement probably were added more recently, perhaps in the lat-
ter part of the 7th century BCE. In this book, the symbol “D” is used to
designate what may have been the earlier, if not original version of the
Deuteronomic Code. Laws found in Deuteronomy chapters 12–19, and
26 generally relate to centralization of sacrificial worship in Jerusalem.
In this study, these chapters are referred to as the Revised Deuteronomic
Code or “RDC.” Capital laws found in the RDC will be considered below
in Section B.1.e. of this chapter.

i. Held-over capital legislation: kidnapping, abduction or


“man-stealing”: Deuteronomy 24:7
Surprisingly, perhaps, only one of the several capital offenses defined in
the CC is repeated in D: that concerned with kidnapping. All the other
capital offenses found in D appear there for the first time.64 It may well be
asked whether the other capital offenses set out in the CC but omitted
from D were still thought to apply, or whether their absence from D meant
that they had been forgotten, abandoned, or at least tacitly repealed.
Deuteronomy 24:7, the Deuteronomic law making kidnapping a
capital offense, is drafted more narrowly and precisely than its early

62
That understanding is implicit in certain early biblical narrative traditions. See, e.g.,
Exod. 32:25-28 (pursuant to the “golden calf” episode); Num. 25:1-17 (the somewhat
incoherent story of Israelite sacrifice to Moabite gods and/or the “Baal of Peor”); and
1 Kgs 18:40 (following Elijah’s contest at Mt. Carmel).
63
Absence of any allusion to the monarchy suggests dating prior to the time of Saul
and David. Some interpreters suggest a more recent date, for instance in the 8th or 7th
century BCE. This question need not be decided for present purposes.
64
Deuteronomy 19:4-13 (in regard to manslaughter, murder and cities of refuge) will be
considered in Section B.1.e.i. of this chapter in connection with laws set out in the RDC.
See also Chapter Six, Section A.3.
96 Justice and Compassion in Biblical Law

counterpart in the CC, Exodus 21:16. Under the Deuteronomic version,


the death penalty applies only if the person kidnapped (or stolen) is a
fellow-Israelite. Moreover, it is not enough if the person kidnapped is
found in the kidnaper’s possession, as in Exodus 21:16. In order to
warrant execution, the kidnaper must have treated his victim as a slave or
as merchandise.65 Both versions of the law make it a capital offense if the
kidnaper sells the abducted person. In that case, implicitly, the person
would have been sold as a slave.

ii. New capital offenses in the Deuteronomic Code


The four new capital laws found in D all relate to the horizontal dimen-
sion of the covenant: that is, to interactions between or among persons
who were members of the Israelite community. One concerns parent–
child relations. The other three have to do with adultery.

(a) Ungovernable sons: Deuteronomy 21:18-21


This law reads as follows:

If a man has a stubborn and rebellious son, who will not obey the voice
of his father or the voice of his mother, and, though they chastise him,
will not give heed to them, then his father and his mother shall take
hold of him and bring him out to the elders of his city at the gate of the
place where he lives. (RSV)66

According to Deuteronomy 21:20, the parents then were to recite the


following allegations: “This, our son is stubborn and rebellious; he will
not obey our voice; he is a glutton and a drunkard” (RSV).67 Perhaps it
was expected that the elders would inquire further before proceeding to

65
See Phillips, Criminal Law (cited above in note 36), pp. 131–32. Phillips refers to some-
what similar laws in the Code of Hammurabi and the Hittite Law Code. Id., p. 132.
66
Deuteronomy 21:18-19. Elders function as judges in other biblical cases at trial. See, e.g.,
Deut. 22:13-21; Josh. 20:4; Jer. 26:7-19; and Susanna, v. 50.
67
Gluttony and dipsomania may have been considered typical behavioral characteristics of
“stubborn and rebellious sons.” However, these conditions, without more, were not
prohibited in any biblical law, much less criminalized as capital offenses. Compare Judd,
Taking Sides (cited above in note 1), p. 185 (erroneously asserting that “gluttony and
excessive drinking” were capital offenses as such). Note that both the mother and father
were to bring their son before the elders and both were to prefer charges. See generally,
Carolyn Pressler, The View of Women Found in the Deuteronomic Family Laws (Berlin: Walter
de Gruyter, 1993), pp. 17–20.
Capital Offenses 97

carry out the death penalty; but there is no mention of such inquiry in
this context. Possibly the offender would be put to death only if the elders
believed the parents’ testimony.68 This law could be seen as an extension
of, or at least related to, the provisions in the CC making it a capital
offense to strike or curse one’s parents (Exod. 21:15, 17). It might be
noted that in its terms, this law applies only to sons, not to daughters.
Possibly Israelite daughters were expected to be more amenable to the
exercise of parental authority.69 Falk suggests that the harsh nature of the
punishment provided here was intended to prevent such a son “from
attacking his parents” and to deter others from engaging in stubborn and
rebellious conduct.70 Again there are no reported cases when this law was
carried out. Perhaps its being “on the books” had some deterrent effect.

(b) Adultery: Deuteronomy 22:13-27


A series of three new capital laws relate to sexual offenses or allegations
of such offenses involving women who were either married or betrothed.
These are grouped together in Deuteronomy 22:13-27. Adultery was
prohibited under the “Seventh Commandment” of the Decalogue (Exod.
20:14; Deut. 5:18). But neither adultery nor any other sexual activity—
aside from buggery—had been criminalized, much less subject to capital
punishment in the CC. Both D and the later Holiness Code (H) treat
adultery as a capital offense.71
Deuteronomy 22:13-21: alleged prenuptial promiscuity. This law sets out
procedures to be followed when a newly married husband charges his
bride with having engaged in sexual intercourse prior to their marriage.

68
Some sort of proceeding is implicit here. See Falk, Law and Religion (cited in Chapter
Four, note 6), p. 80: “The [father of a rebellious son] is asked to submit his grievance to
a judicial tribunal rather than to exercise his ius vitae necisque and the patria potestas.”
Compare Levine, “Capital Punishment” (cited in Chapter Three, note 16), p. 18: “If all
efforts at disciplining him fail, the elders are to condemn such a son to death.” However,
there is no indication in the biblical text that mediation or discipline were contemplated
as alternative or preliminary measures.
69
See Sir. 7:23-25; 22:3-5; 26:10-12; and 42:9-11 (noting parental problems with daughters,
but not indicating recourse to capital punishment).
70
Falk, Religious Law (cited in Chapter Four, note 6), p. 60.
71
Phillips states that prior to “the Deuteronomic legislation” an adulterous wife was not
subject to punishment, but her adulterous lover could be “tried, convicted, and
executed for the crime of adultery.” Criminal Law (cited above in note 36), p. 110. That
may have been the case, but it is not clear that the evidence cited (Deut. 7:3-4) warrants
so concluding. Phillips suggests that the Deuteronomic Reform made women “equal
members of the covenant community” and thus equally liable under the law. Id. See
Chapter Four, Section B.3. As to adultery in the Holiness Code, see below, text accompa-
nying notes 94 and 95. Good, “Capital Punishment” (cited in Chapter Three, note 13),
pp. 957–58, discusses ANE parallels.
98 Justice and Compassion in Biblical Law

If, after evidentiary examination, the woman is found guilty as charged,


she is to be put to death. However, if the evidence does not support the
allegation, the husband who has falsely charged her is to be punished
both by whipping and a 100-shekel fine.72
Deuteronomy 22:22: adultery with a married woman. Here adultery is made
a capital offense when “a man is caught lying with the wife of another
man.” Adultery was not identified as a capital offense under the CC.
In this D law, both “the man who lay with the woman” and the woman are
to be put to death.73 In its terms, this law applies whether the male
adulterer was married or single. The law is silent as to what must be done
if a married man is found lying with a single woman. No other biblical
law addresses the latter situation either.
Deuteronomy 22:23-27: intercourse with a betrothed virgin. This law
applies when a man “meets” a virgin who is betrothed (presumably to
another man) and lies with her. No due process procedures are speci-
fied. However, certain presumptions were to apply. If the meeting (or
assignation) occurred in town, both the man and the woman were to
be put to death: the woman “because she did not cry for help” (Deut.
22:24). It appears to have been presumed both that if the woman had
been sexually assaulted or raped in a town or city, she would have
been able to cry for help, and that someone would have heard her cry
and either then came to rescue her or later appeared to testify.
Perhaps, if someone did hear the cry and render assistance or later
testify on her behalf, it would be a different case and the woman would
be spared. But absent such third-person rescue or testimony, the irre-
buttable presumption appears to be that she had consented to the
liaison.
A different presumption operated if a man meets, seizes, and lies with a
betrothed young woman “in the open country” (Deut. 22:25). In that
circumstance, the man is to be executed, but nothing shall be done to the
young woman for she “has not committed an offense punishable by death”

72
See generally, Pressler, View of Women (cited above in note 67), pp. 22–31. Pressler
suggests that the text also indicates that a slandered woman’s parents could bring
charges against the husband for defamation and receive monetary damages. As to
evidentiary procedures, see Chapter Six, Section B.
73
This law, obviously, was not applied in the case of King David. David was condemned for
marrying Bathsheba after murdering her husband, but not for his previous adultery with
her. 2 Sam. 12:9. Nor was he condemned for earlier taking Paltiel’s wife, Michal, Saul’s
daughter. 2 Sam. 3:12-16. In regard to the complex character of biblical and ANE law
and practice as to punishment for adultery, see Raymond Westbrook, “Adultery in
Ancient Near Eastern Law,” Revue Biblique 97 (1990) 542–580.
Capital Offenses 99

(Deut. 22:26a-b).74 This law is based by analogy on the “case of a man


attacking and murdering his neighbor” (Deut. 22:26c RSV).75 Here the
irrebuttable presumption is that if the encounter occurred in open coun-
try, the woman had not consented, had cried out for help, but no one was
there to hear, and so she was to be deemed innocent. How it was to be
determined whether the man had “seized” her, that is, taken her by force is
not specified.76 Evidently the woman’s own testimony would be credited.

d. The Holiness Code: Leviticus chapters 18–26


Biblical scholars do not agree entirely as to the exact scope of the Holi-
ness Code or “H.”77 For present purposes, it is considered to comprise
Leviticus chapters 18–26.78 The Holiness Code appears to have been set
down after the original portion of the Deuteronomic Code, but prior to
the Deuteronomic Reform and the composition of the chapters in
Deuteronomy that reflect the innovations introduced by it.79 Several of
the capital laws found in H repeat, extend, modify, or qualify earlier legis-
lation, while others define new capital offenses. As in the case of the ear-
lier codes, a few H laws refer primarily to the “vertical” relationship of
Israel or individual Israelites with YHWH. Most, however, concern relations
between or among persons (or in a few instances, persons and animals).

i. Laws relating to God or religious practices: the vertical dimension


The Holiness Code contains no provisions applying the death penalty to
the worship of other gods. This absence could mean that, at the time
H was codified such worship was no longer considered a capital offense.

74
T. J. Meek points to somewhat similar presumptions in the Hittite Code, sect. 191:
“If a man seizes a woman in the mountains, since it is the man’s wrong, he shall be put
to death. But if he seizes her in the house, since it is the woman’s fault, the woman shall
be put to death. If the husband finds them and then kills them, he is not to be pun-
ished.” Hebrew Origins (cited above in note 33), p. 62.
75
In such a case where there are no witnesses, and one person was dead, the other—
evidently according to otherwise unreported biblical or ancient near eastern common
law—would be presumed to have murdered the deceased.
76
Deut. 22:25; cf. Deut. 22:23, where there is no mention of the man’s seizing the woman.
77
As to H, see generally Gerhard von Rad, Studies in Deuteronomy (London: SCM Press,
1953), pp. 25–36.
78
Scholars sometimes include Leviticus chapter 17 as well. As to the present topic, how-
ever, the question is moot, since chapter 17 includes no laws sanctioned by capital
punishment.
79
See Section B.1.e. of this chapter. The Holiness Code does not call for or presuppose
sacrificial worship in only one place. See favorable references to plural “sanctuaries” in
Lev. 21:23 and 26:31. However, H includes some expressions that suggest possible later
editing under Priestly auspices.
100 Justice and Compassion in Biblical Law

Possibly the several new capital laws against allotheism subsequently set
out in Deuteronomy chapters 13, 17, and 18 reflect renewed concern on
the part of the Deuteronomic reformers about such worship.80 Alterna-
tively, the earlier capital law against sacrificing to other gods (Exod. 22:20)
may have been considered still in effect. Three H laws concern religious
practices: one extends and modifies prior law; two others are new.

(a) Leviticus 20:6, 27: mediums or wizards


The Covenant Code had called for the death of any sorceress (Exod.
22:18). The Holiness Code extends the death penalty to male as well as
female practitioners of the occult arts: “A man or a woman who is a
medium or a wizard shall be put to death” (Lev. 20:27).81 Moreover,
H makes it unlawful to “turn to” or consult mediums or wizards, but does
not prescribe the death penalty for such consultation (Lev. 19:31; 20:6).
The latter text warns that YHWH would set his face against any who
consulted mediums or wizards, and “cut them off from among” their
people. In other words, the administration of any penalty for these
offenses would be left to YHWH.

(b) Leviticus 20:1-5: offering children to Molech


This new law prohibited Israelites from offering or giving their children
to Molech. Molech, according to 1 Kings 11:7, was the god worshiped by
Ammonites, a neighboring people. Leviticus 18:21 prohibits the practice
of offering or devoting children by fire to Molech; and Leviticus 20:1-5
apparently makes doing so a capital crime. Such offerings would consti-
tute apostasy and allotheism, by acknowledging and honoring Molech as
a god. They also would violate the covenant’s horizontal dimension, by
causing the death of Israelite children.82 Leviticus 20:1-5, however, seems
to acknowledge or recognize the possibility of noncompliance with its
capital penalty requirement:

80
In this book, the term “Deuteronomic reformers” designates those supposed to have
been responsible for much if not all of the legislation found in Deuteronomy, chapters
12–19 and 26. See Section B.1.e.ii.(a) of this chapter.
81
But see Lev. 19:26b, which, though banning augury or witchcraft, provides no penalty.
See also Deut. 18:10-14, which seems to call for banishment, though not execution, of
“any one who practices divination, a soothsayer, or an augur, or a sorcerer, or a charmer,
or a medium, or a wizard, or a necromancer” (RSV). These practitioners were not neces-
sarily allotheists. Perhaps the Deuteronomic reformers were more tolerant of such
practices than those who had established the death penalty for sorcerers, mediums, and
wizards in the CC and H.
82
Deuteronomy 12:29-31 and 18:10, both part of the RDC, also warn against such practices.
Capital Offenses 101

But if the people of the land do at all hide their eyes from that man,
when he gives one of his children to Molech, and do not put him to
death, then I will set my face against that man and against his family,
and will cut them off from among their people, him and all who follow
him in playing the harlot after Molech. (RSV)

This “but if” provision evidently meant that if Israelites failed to put such
Molech worshipers to death, YHWH himself would banish them.83 Alter-
nately, “cut them off from among their people” could have meant that
YHWH himself would cause them to die. Either way, the provision suggests
that the drafters recognized their contemporaries’ hesitancy to apply the
death penalty in such cases.

(c) Leviticus 24:10-16: blaspheming “the Name”


This new law criminalizes blasphemy or blaspheming “the Name” of
YHWH.84 Unlike most of the laws traditionally attributed to Moses, this
one derives from a reported “case” rather than from YHWH’s purported
pronouncements upon Mts. Sinai or Horeb. A man, whose mother was
Israelite and father Egyptian, while quarreling with an Israelite, had
“blasphemed the Name, and cursed” (Lev. 24:10-11 RSV). The substance
of the “blasphemy” is not indicated; but probably involved some inap-
propriate, possibly derogatory use of the divine name. The blasphemer
was then brought before Moses, who, however, did not yet know what
should be done since there was no previous statute on point. “So they
put him in custody, till the will of YHWH should be declared to them”
(Lev. 24:12 RSV).85 Subsequently, as the story is told, YHWH instructs
Moses to order the blasphemer executed.86 The resulting rule or law of
the case is stated in Leviticus 24:16:

He who blasphemes the name of YHWH shall be put to death; all the
congregation shall stone him; the sojourner as well as the native, when
he blasphemes the Name, shall be put to death. (RSV)

83
Cf. Gen. 4:12. Deuteronomy 18:10 also may have meant that Molech worshipers (“anyone
who makes a son or daughter pass through fire”) were to be banished or exiled.
84
Cf. Exod. 22:28a: “You shall not revile God.” No penalty for doing so is indicated in
the CC.
85
This text and Numbers 15:34 are the only explicit references in the Old Testament or
Hebrew Scriptures to arrest and custody pending trial or sentencing. As to cities of
refuge where offenders might seek refuge pending trial, see Chapter Six, Section A.
86
It is not said whether this instruction was derived from or conveyed through the ephod
or “lot” or received through some other medium.
102 Justice and Compassion in Biblical Law

Although blasphemy is not mentioned as a capital offense in earlier law


codes, it may have been so treated in previous Israelite common or case
law. If so, the point of this episode might have been to make clear that
the law applied to resident aliens as well as to native-born Israelites, or as
in the reported case, to persons of mixed nationality who blasphemed.

ii. Laws affecting the community: the horizontal dimension


Several earlier laws concerning relations within the community are
repeated in H, generally with some variations or modifications. Also, a
number of new laws with this focus appear for the first time in H. Several
of the laws concern illicit or improper sexual activity.

(a) Modifications or variations on earlier laws


Over time, older laws become modified, whether by new case law or
interpretive “construction” as to their meaning and scope, or through
new “legislative” enactments. The H laws described in this subsection
present relatively slight variations on earlier “statutes.”
Leviticus 24:17, 21b: homicide. Here as in the CC (Exod. 21:12), a person
who commits homicide is subject to the death penalty: “He who kills a
man shall be put to death” (RSV). Unlike the CC, however, these H texts
do not distinguish between accidental or negligent, and intentional
homicide.87 Moreover, H contains no provision for cities of refuge where
those who have killed other persons may seek sanctuary pending further
proceedings.88 If H is properly dated prior to the Deuteronomic Reform,
this omission may be accounted for on the theory that, prior to this
reform, persons seeking refuge as “manslayers” could find sanctuary at
any of the numerous local religious shrines then scattered throughout
Israel. Closing or destroying those shrines was a core feature of the
Deuteronomic Reform.
The fact that the homicide law is repeated twice (as is the law regarding
killing “an animal” or “a beast,” Leviticus 24:17, 21a), suggests possible
scribal error in copying. Or it may be that one version was originally part
of the lex talionis at Leviticus 24:19-20. These verses, for the first time,
extend that lex from its narrow context in Exodus 21:22-25 so as to apply
to mayhem or permanent disfigurement generally.89 In addition, as in

87
Cf. Exod. 21:13-14 and Deut. 19:4-13.
88
See Chapter Six, Section A.
89
At common law, mayhem originally referred to the kinds of disfigurement or disable-
ment that would adversely affect the victim’s ability to fight. In American statutory law,
Capital Offenses 103

Exodus 21:23, the laws set out in Leviticus 24:17 and 21b require taking
“life for life,” that is, execution of the one who has killed another
person.90
Leviticus 20:9: cursing father or mother. Like D, H does not include any
laws making it a capital offense for a person to strike his parents.91
Leviticus 20:9, however, like Exodus 21:17, makes it a capital crime to
curse one’s father or mother, another offense not included in D. The only
addition to the earlier provision is in Leviticus 20:9b (RSV): “[H]e has
cursed his father or his mother, [therefore] his blood is upon him[self].”
Thus it is said that those who have cursed a parent are responsible for
their own death.92 Perhaps this added statement was intended to ease the
conscience of those who might otherwise feel hesitant to apply the death
penalty in this setting.93
Leviticus 20:10: adultery. The version of the Decalogue found in the
Covenant Code (Exod. 20:14) prohibits adultery, but does not provide
any penalty for its commission.94 But here, H, like D,95 treats adultery as
a capital offense. Neither the D nor the H version of the law defines or
penalizes adultery in a case where a married man has sexual intercourse
with an unmarried woman.
Leviticus 20:15-16: buggery with an animal or a beast. The CC had provided
that anyone who lay sexually with a beast would be put to death (Exod.
22:19). The H version specifies that the anti-buggery law is gender inclu-
sive: it applies both to men and to women. The provision as to women,
however, contains an additional element: “If a woman approaches any beast
and lies with it . . . ” (Lev. 20:16 RSV). Conceivably, this provision was
intended to excuse a woman in the unlikely event that she was approached
by a beast, that is, victimized by the animal.96 At least she could have so
contended as a defense under this H revision.

mayhem generally means any kind of dismemberment or permanent disfigurement.


See LaFave, Criminal Law (cited above in note 38), pp. 749–50.
90
As to the three biblical versions of the lex talionis, see Chapter Six, Section D.2.
91
Cf. Exod. 21:15.
92
The expression, “his blood is upon him,” places responsibility for adverse consequences
on those who have committed capital offenses. See, e.g., Lev. 20:11, 12, 13, 16, & 27.
93
Several biblical texts suggest that cursing was expected to operate ex opere operato (or
automatically) with tangible, deleterious consequences. See, e.g., the Balaam–Balak
story in Num. 22–24 and the recitation of curses in Deut. 27:13-26. Cf. Ps. 109:17-19.
Thus cursing parents could have been understood to cause them tangible or physical
harm. See Good, “Capital Punishment” (cited in Chapter Three, note 13), p. 956.
94
So likewise the version in Deut. 5:18.
95
See Deut. 22:22.
96
Such circumstances may have been imagined in ancient folklore; but there are no
biblical examples.
104 Justice and Compassion in Biblical Law

Leviticus 19:20-22: sexual intercourse with a betrothed female slave. This law
modifies or limits the scope of the D provisions that made it a capital offense
for a man to have sexual intercourse with another man’s betrothed, virgin
“wife” inside city limits (Deut. 22:23-24). This H law carves out an exception
when the betrothed woman is a slave who has not yet been ransomed or
given her freedom. In this situation, neither is to be put to death. The
woman is excused “because she was not free” (RSV), a rationale somewhat
similar to the D presumption of innocence on the part of a betrothed
virgin when the sexual encounter occurred in the countryside (Deut. 22:25-
27).97 The H provision does not excuse the male; he is guilty of sin (Lev.
19:22). However, he can absolve himself of that sin by offering a prescribed
guilt offering, administered by “the priest,” in order that his sin will be for-
given (Lev. 19:21-22).98

(b) New capital laws


The new capital laws regarding community interactions first articulated in
H all define illicit sexual conduct. One series condemns various types of
incest. Homosexual intercourse is prohibited for the first (and only) time.
And another new law provides for the execution of priests’ daughters who
engage in prostitution.
Leviticus 20:11-12, 14: incest. Twelve different categories of incestuous
sexual liaisons are prohibited in Leviticus 18:6-18.99 Generally, it seems,
these prohibitions were meant to apply in regard to both marriage and
extra-marital sexual intercourse. Some, but not all of Leviticus Eighteen’s
proscribed categories were made subject to capital punishment under
the provisions of Leviticus chapter 20.100
Only three categories are subject to the death penalty under Leviticus
20. First, sexual relations between a son and his father’s wife (Lev. 20:11).
This apparently would include intercourse with either the son’s own

97
Leviticus 19:20-22 does not distinguish between urban and rural settings.
98
For alternative interpretations of this law, see Westbrook, Studies (cited above in note
31), pp. 101–09.
99
None of the offenses proscribed in Leviticus 18 includes punishment directives or
sentencing guidelines. There it may have been understood that YHWH himself would
punish the offenders.
100
On biblical incest laws, see generally David Daube, Studies in Biblical Law (cited above in
note 32), pp. 77–82. Categories prohibited in Leviticus 18 but not subject to the death
penalty under chapter 20 include the following relationships: brother–sister (18:9, 11;
see also 20:17; cf. 2 Sam. 13:1-14); grandfather–granddaughter (18:10); nephew–aunt
(18:13-14; see also 20:19); brother–brother’s wife (18:16; see also 20:21); husband–wife’s
granddaughter (18:17); and husband–wife’s sister (18:18).
Capital Offenses 105

mother, or with his father’s other wife or wives.101 Second, intercourse


between a man and his daughter-in-law (Lev. 20:12). And third, a man’s
“taking” both a woman and her mother (Lev. 20:14).102 All sexual
partners in these incest categories were to be put to death.103
Leviticus 20:13: homosexual intercourse. Such intercourse was not men-
tioned in any other law code. Here it is characterized as an “abomina-
tion” or morally repugnant, and listed with other capital sexual offenses:104
“If a man lies with a male as with a woman, both of them have commit-
ted an abomination; they shall be put to death.”105 No biblical traditions
explain why homosexual conduct was disapproved or sanctioned by the
death penalty for the first time in H. Such conduct may, of course, have
been criminalized in earlier Israelite or ANE common law. Homosexual
conduct is neither condemned nor even mentioned again in the later
RDC or PC. Homosexual assault or rape was clearly disapproved in the
old story of the angels’ visit to Sodom (Gen. 19:4-11).106 Neither this,
nor any other biblical law or narrative, concerns lesbian or female
homosexual relations.
Leviticus 21:9: a priest’s daughter who “plays the harlot.” Chapters 21 and 22
detail numerous directions as to the conduct and responsibilities of
priests. Priestly purity and ritual procedures are emphasized for the first

101
See also Amos 2:7b. According to Gen. 35:22 and 49:3-4, Jacob’s son, Reuben, lay with
Bilhah, Jacob’s concubine (described also as Jacob’s wife in Gen. 30:4), but was not
punished for so doing. At that time, Mosaic law would not yet have been in effect. But
see also 2 Sam. 16:21-22 (David’s son, Absalom so acts with impunity). Neither Leviticus
18 nor 20 prohibit sexual intercourse between a man and his daughter or between a
man and his niece.
102
A man’s having sexual intercourse with his mother-in-law is not specifically forbidden in
chapter 18, but this meaning is implicit in Leviticus 20:14. See also Deut. 27:23.
103
Leviticus 20:17, and 19-21 address four types of incest noted also in Leviticus 18, but
mandate or anticipate noncapital forms of punishment: brother–sister; nephew–aunt,
nephew–uncle’s wife; and brother–brother’s wife liaisons. Those engaged in the latter
two modes of incest, it is said, will be (or will die) childless (Lev. 20:20-21). Curiously,
one late tradition purports to require certain classes of relatives to marry. See Tob. 6:12,
according to which a father must give his daughter to her only eligible kinsman-suitor
on pain of death. Reference to the death penalty here is probably only a literary fiction
intended to heighten the drama. There is no such biblical law or ANE legal equivalent
to this requirement. As to incest in other ANE laws, see Good, “Capital Punishment”
(cited in Chapter Three, note 13), pp. 959–60.
104
Leviticus 20:1-16 lists a series of capital offenses; those enumerated in vv. 10-16 all
pertain to sexual activities.
105
A number of early texts could be read to suggest that David and Jonathan enjoyed with
impunity a relationship that extended beyond conventional male bonding: 1 Sam. 18:1,
3; 19:1; 20:17, 30, 41; 2 Sam. 1:26. But see Good, “Capital Punishment” (cited in Chapter
Three, note 13), p. 960 and id. n. 62 (concluding otherwise).
106
See also Judges 19:22-30. In the New Testament, Paul comments unfavorably on both
lesbian and male homosexual passion and acts (Rom. 1:26-27).
106 Justice and Compassion in Biblical Law

time in H, though not to the same extent as in the later PC. Here, as in
the PC, it is understood that priests must be descendants of Aaron,107 and
must remain “holy” (qadosh or qadash [Lev. 21:6, 7]) or separate from
“unclean” persons or things. Thus, priests might not marry harlots or
divorced women (Lev. 21:7).108 A priest’s daughter who “plays the harlot”
(probably meaning, having consensual sexual intercourse with anyone
other than her husband) “profanes” both herself and her father, and is,
therefore, to be put to death.

e. The Revised Deuteronomic Code (RDC): Deuteronomy chapters 12–19


and 26
At some period in the late 8th or 7th centuries BCE, possibly during the
long, corrupt, and apostate reign of King Manasseh, a major reform move-
ment became active in Judah. The reformers were no doubt aware of the
fate of the Northern Kingdom, Israel, which had been over-run by Assyria
in 722 BCE. Various prophets had interpreted that catastrophe prospec-
tively or contemporaneously as YHWH’s judgment against Israel for its
chronic pattern of turning away from YHWH to the worship of other gods,
and the numerous injustices consequent upon its failure to keep his com-
mandments.109 The Deuteronomic historians so understood such matters
in retrospect.110 The Deuteronomic reformers, understandably, were
concerned that the peoples’ persistent pattern of apostasy—turning from
YHWH and to the worship of other gods—would likely bring divinely
ordained catastrophic judgment upon the Southern Kingdom, Judah,
as well. The major literary or statutory product of—if not inspiration
for—the Deuteronomic Reform was the new collection of laws found in
Deuteronomy chapters 12–19 and 26, characterized in this book as the
Revised Deuteronomic Code (RDC).
The key feature of the Deuteronomic reform was the requirement that
now YHWH might be worshiped with sacrifices, tithes, and other offer-
ings only in the one place [implicitly, Jerusalem], and that the many cult
shrines where in previous years, decades and centuries, YHWH had been
worshiped—along with indigenous Canaanite deities—must be closed

107
Unlike the PC, however, H does not distinguish between priests and Levites.
108
It may have been assumed, but is not explicitly stated that priests themselves were to
refrain from having sexual intercourse with harlots.
109
See, e.g., Hos. 4:1–10:15; Amos 2:6–9:8b.
110
See 2 Kgs 17:1-18.
Capital Offenses 107

down and destroyed. The reformers’ intent, evidently, was to discourage


the continuing love affair of the people of Judah with such deities, lest
YHWH bring disaster upon that nation in the same way that he had done
to Israel nearly a century earlier. These provisions, along with a series of
related accommodations to the closing of the cult shrines, are set out in
Deuteronomy 12–19. These chapters may also include other or earlier
laws, some deriving, perhaps, from D, the earlier or original Deutero-
nomic Code. For purposes of this study, Deuteronomy 12–19 is consid-
ered as a separate Code, labeled, as a convenience, the Revised
Deuteronomic Code, or RDC.

i. An old law amended: Deuteronomy 19:4-13—homicide


The RDC includes only one capital law somewhat similar to an earlier
provision: this is a law distinguishing between separate categories of
homicide and adding certain arrangements for the protection of the
accused.
This Code contains an extensive section governing arrangements for
dealing first with “the manslayer” and then with intentional murder
(Deut. 19:4-13). The CC did not refer to manslaughter or accidental
homicide.111 Instead, it provided that a man who fatally struck another,
but without plotting to do so in advance might flee to a “place” or sanctu-
ary of some sort (Exod. 21:13), perhaps one of the many old rural and
urban cult shrines functioning prior to the Deuteronomic Reform.
In some modern jurisdictions, this kind of offense might be classified as
second degree murder.112 The RDC specifically defines manslaughter,
namely, as an offense when “any one kills his neighbor unintentionally
without having been at enmity with him in the past” (Deut. 19:4 RSV).
This definition is followed immediately by the example:
. . . as when a man goes into the forest with his neighbor to cut wood,
and his hand swings the axe to cut down a tree, and the head slips from
the handle and strikes his neighbor so that he dies. (Deut. 19:5 RSV)

111
The CC did address two narrowly defined instances of culpable or recklessly negligent
homicide: (a) where a married pregnant woman dies from injury caused by brawling
males that resulted in a miscarriage (Exodus 21:22-23), and (b) where an ox fatally
gores someone after its owner had notice of its proclivity to gore but failed to provide
adequate fencing (Exod. 21:28-32). See Section B.1.b.ii of this chapter. The CC also dis-
tinguished between premeditated murder and cases where “God let [the victim] fall
into [the offender’s] hands.” See Section B.1.b.i of this chapter.
112
See LaFave, Criminal Law (cited above in note 38), p. 698.
108 Justice and Compassion in Biblical Law

The accidental or negligent manslayer may flee to one of several cities of


refuge and there obtain protection,

. . . lest the avenger of blood in hot anger pursue [him] and overtake him
. . . and wound him mortally, though the man did not deserve to die,
since he was not at enmity with his neighbor in time past. (Deut. 19:6)113

The manslayer was to be protected not only for his own benefit, but also
to prevent “the guilt of bloodshed” from coming upon the community as
a whole. Such guilt would result if “innocent blood” was “shed”—i.e., by
the execution of a merely negligent manslayer (Deut. 19:10).
The Deuteronomic definition of intentional homicide likewise is more
exact than its earlier counterpart, particularly with regard to the elements
of subjective intent and planning: “But if any man hates his neighbor,
and lies in wait for him,114 and attacks him, and wounds him mortally so
that he dies . . .” (Deut. 19:11 RSV), the murderer was to be executed. As
read, Exodus 21:14 could include attempted murder. The Deuteronomic
version specifies that in order for the offender to be liable, the intended
victim must have died as a result of the premeditated assault.

ii. New capital laws


Several new capital laws found in the RDC are directed against worship-
ing or inciting others to worship alien deities. Two other new laws crimi-
nalize as capital offenses certain types of conduct that would disrupt
important structural aspects of community existence. Both of these
community laws relate directly to the judicial system.

(a) False prophecy, apostasy, and inciting to allotheism


Five of the seven new capital laws found in the RDC are directed against
worship of other gods (allotheism) and/or false prophecy. These are all
found between chapters 12 and 18, and may well reflect the Deutero-
nomic Reform’s concern with the persistent tendency of Judahites (if
not also earlier Israelites) to “go after,” that is, turn to and serve such

113
As to cities of refuge, see Chapter Six, Section A.
114
Cf. Exod. 21:13-14, where lying in wait is only by implication an element in the defini-
tion of premeditated murder.
Capital Offenses 109

other deities.115 At any rate, these new laws, unlike Exodus 22:20, make
clear that the community is responsible for the punishment of such
offenders. Moreover, while Exodus 22:20 provided only that any who
sacrificed to other gods would be destroyed, these new laws apply to any
kind of worship or incitement to worship or serve such deities. Neverthe-
less, each of the new provisions is somewhat narrowly tailored.
Deuteronomy 13:1-5: incitement to allotheism—prophets and dreamers of
dreams. This law focuses on “prophets” or “dreamers of dreams”116 who
attempt to authenticate their credibility by performing or foretelling
certain “signs” or “wonders.” If the signs or wonders “come to pass,” that
is, occur, and if such prophets or dreamers call on others to “go after”
and serve other gods, those prophets or dreamers are to be put to death.
Nothing is said as to prophets or dreamers of dreams who give signs or
wonders that do not come to pass. Perhaps such persons would have been
considered thereby sufficiently discredited and therefore less danger-
ous, and possibly tolerated as mere eccentrics.117
Deuteronomy 13:6-11: secret incitement to allotheism—family and friends.
Secret incitement by immediate family members or dear friends to wor-
ship other gods was evidently considered a very serious threat to the
community’s relationship with YHWH:

If your brother, the son of your mother, or your own son, or your
daughter, or the wife of your bosom, or your friend who is as your own
soul, entices you secretly, saying, “Let us go and serve other gods,” . . .
you shall not yield to him or listen to him, nor shall your eye pity him,
nor shall you spare him, nor shall you conceal him; but you shall kill
him . . . (Deut. 13:6-9a RSV)

In the biblical perspective generally, and especially in the view of


Deuteronomic tradition, constant fidelity to YHWH was a matter of life
and death for the whole community. YHWH had brought Israel “out of
the land of Egypt, out of the house of bondage” (Deut. 13:10 RSV). So
long as his people remained faithful to him, YHWH would continue to
shower his blessings upon them (Deut. 28:1-14); but the consequences

115
See generally, Calum M. Carmichael, The Laws of Deuteronomy (Ithaca: Cornell Univ.
Press, 1974), pp. 70–77.
116
These categories could have included primitive fortune tellers or astrologers.
117
Compare 1 Sam. 21:10-15.
110 Justice and Compassion in Biblical Law

of apostasy—turning from YHWH and his law—would be utterly cata-


strophic (Deut. 28:15-68). There are no recorded biblical instances
where this deadly serious law was carried out.
In its terms, this law does not provide for punishing persons outside the
circle of intimate family members or friends who promote allotheism.
Perhaps such outsiders were thought less dangerous because they were
less likely to succeed with their enticements. Or it may already have been
understood that such other persons were to be executed; in that case, the
purpose of Deuteronomy 13:6-11 would have been to ensure that no one,
not even family members or dearest friends, would be exempt from its
penalties. Interestingly, this law does not provide for punishing any such
persons who might publicly incite or encourage friends or relations to
idolatry or allotheism. Possibly open encouragement was considered
tolerable because it could be corrected or countered by others.
Deuteronomy 13:12-18: inciting cities to allotheism. Here it is said that if
“certain base fellows” from among the Israelites succeed in “drawing away”
(RSV) the inhabitants of an Israelite (or Judahite) city from YHWH and
in enticing them to “go and serve other gods” (RSV), all the inhabitants
of that city are to be destroyed, along with their cattle.118 Again, this law
may reflect the ideology of the Deuteronomic Reformers, which is
expressed also in the herem tradition.119 The explicit rationale for this
drastic action was to assuage the ferocity of YHWH’s anger, which other-
wise would be inflicted upon all Israel, and thereby to induce him to show
them mercy and compassion (Deut. 13:17). The law is somewhat narrowly
crafted in that it applies only if those who incited Israelite towns to

118
Perhaps it was understood that the apostates had ritually contaminated their cattle by
offering some to alien deities. Because the laws included in the RDC are all attributed
to Moses (or YHWH’s giving the laws to him in the era of Israel’s sojourn in the wilder-
ness) they are phrased as if intended for all Israel, not just for Judah in the period
following the Assyrian conquest of Israel. After the demise of Israel, the Northern
Kingdom, Judah, the surviving Southern Kingdom is often identified in biblical terms as
“Israel” and its people as “Israelites.”
119
The herem was the practice of destroying (or otherwise consecrating to YHWH) persons
defeated in war, and sometimes their livestock and other property. See de Vaux (cited
above in note 30), pp. 260–63. In Deuteronomic editing of early tradition following the
Deuteronomic Reform, this archaic practice apparently was reemphasized in order to
underscore the critical importance of remaining faithful to YHWH and avoiding wor-
ship of other gods. Because the herem supposedly was practiced against enemies defeated
in battles during the conquest of Canaan, it is not considered as a form of capital
punishment in this book. But see Good, “Capital Punishment” (cited in Chapter Three,
note 13), pp. 971–72, noting texts where the h.erem may have been applied against
Israelites who failed to observe the practice.
Capital Offenses 111

commit apostasy were themselves Israelites.120 Moreover, it may be that the


herem was supposed to apply only if all “the inhabitants of the city” had
turned to other gods (Deut. 13:13).
Deuteronomy 17:2-7: allotheism generally. This law made it a capital
offense for a man or woman in any Israelite town to go, serve, and
worship other gods or celestial beings.121 Implicitly, this law against
allotheism would apply to Israelites and foreigners alike; but not, in its
terms, to persons living in rural areas. As will be noted, certain due proc-
ess protections for the accused are provided in Deuteronomy 17:4-6:
diligent inquiry as to the facts122 and corroborating testimony by one or
two additional witnesses.123
Deuteronomy 18:20: allotheistic and presumptive, false prophets. Two types
of prophets are made subject to the death penalty under this law. Any
prophet who “speaks in the name of other gods . . . shall die.” The law
also assigns the same fate to any prophet “who presumes to speak . . . a
word” in the name of YHWH which YHWH had “not commanded him to
speak.” Whether or not such a prophet had been so commanded was to
be determined by observing whether the “word” that had been spoken
came to pass, i.e., came true (Deut. 18:21-22). Thus even a prophet who
thought he was speaking on YHWH’s behalf might be put to death.124 This
provision does not appear to take into consideration the possibility that
YHWH might change his mind, as is suggested in Amos chapter 5 or
illustrated in the Jonah story ( Jon. 3:10). There is no evidence that this
law was ever enforced.

(b) Offenses against the community: protecting the innocent and


upholding judicial integrity
Two of the new Deuteronomic laws refer to judicial proceedings. One
provides penalties for malicious false testimony. The other sanctions
refusal or failure to abide by the court’s decision. Both may have been
part of the RDC; or they may have been laws originally included in D, but

120
Such appears to be the meaning of the expression, persons “who have come out among
you.”
121
Compare Exod. 22:20; see Section B.1.b.vi(c) of this chapter. The Deuteronomic law
specifically prohibited worshiping “the sun or the moon or any of the host of heaven.”
(Deut. 17:3 RSV).
122
See Chapter Six, Section B.
123
See Chapter Six, Section C.1.
124
This law does not conflict with Deuteronomy 13:1-5. In that law, a prophet whose signs
or wonders came to pass would be put to death only if he called upon people to worship
and serve other gods.
112 Justice and Compassion in Biblical Law

now relocated in Deuteronomy chapters 12–19 among the laws emanat-


ing from the Deuteronomic Reform.
Deuteronomy 19:16-21: malicious, false witnesses. This law, based on, or
further applying the lex talionis, calls for the death penalty when a mali-
cious witness is found to have accused his brother (or fellow citizen)
falsely of a capital offense: “[Y]ou shall do to him as he had meant to do
to his brother” (Deut. 19:19). The language here may have been under-
stood to be gender inclusive. This law is illustrated in the story of Susanna
and the Elders, where two elders are put to death after they were found to
have accused Susanna maliciously and falsely of adultery.125 The appar-
ent purpose of this law was to uphold the integrity of the judicial process
and also to protect innocent persons from harm. This law evidently pre-
sumes that the innocent were understood to have a right to be free from
abuse of judicial process by malicious persons.
Deuteronomy 17:8-12: refusal to accept the court’s ruling. Under this law, it
was a capital offense to refuse to accept a court’s verdict—at any rate in
difficult cases that have been decided by the presiding Levitical priest
and/or “the judge who is in office” at the Jerusalem Temple:

The man who acts presumptuously, by not obeying the priest who
stands to minister there before YHWH your God, or the judge, that
man shall die. (Deut. 17:12)

As here written, this law clearly reflects the Deuteronomic Reform, which
centralized worship in the Jerusalem Temple. The priest or judge in
Jerusalem functioned, in effect, as supreme court. To ignore or disobey
its orders would constitute anarchy, if not also apostasy and treason. Here
we see a severe penalty for what would be equivalent in modern jurispru-
dence to contempt of court.

f. The Priestly Code or Priestly Legislation


This is the latest of the biblical law codes. Priestly laws may or may not have
been promulgated in a single code. Perhaps it would be more accurate to

125
Susanna vv. 52-62. The situation set out in Deuteronomy 22:13-21 may be distinguish-
able. There the husband whose allegation against his new bride is found false evidently
is presumed to have made “the shameful charges against her” (Deut. 22:17 RSV) mistak-
enly, but without malice. For further analysis of the lex talionis in Deut. 19:16-21,
see Chapter Six, Section D.2. As to ANE parallels to the biblical law against perjury,
see Good, “Capital Punishment” (cited in Chapter Three, note 13), p. 968.
Capital Offenses 113

refer to priestly legislation.126 Priestly laws are found in portions of Exodus,


Leviticus, and Numbers, and are generally thought to have been written
down between 450 and 400 BCE. By then, the kingdoms of Israel and
Judah both had been over-run by other nations, and the Jewish people
along with their former homelands were now encompassed within the Per-
sian empire. The Jerusalem Temple, the sabbath, and various other holy
days or festivals127 were Judaism’s main religious institutions. After the
Deuteronomic Reform, sacrifices could be offered to God or YHWH only
at the Jerusalem temple. Such sacrifices were now presented by priests,
rather than by lay individuals.
The PC is thought to have been composed and promulgated under
the auspices of the Jerusalem priesthood, and probably embodies earlier
as well as more recent laws. Most of these laws had to do with sacrificial
offerings, how they were to be presented, and the duties and preroga-
tives of priests. Priests were now differentiated from Levites. The latter—
notwithstanding provisions of the Deuteronomic Reform guaranteeing
them equal standing with the Jerusalem priesthood128—were now
relegated to the status of lower ranking Temple functionaries or assist-
ants to the priests. Some of the new capital laws found in the PC were
intended to legitimate the superior status of priests and keep Levites and
others in their place. Others dealt with sabbath violations. Case law nar-
ratives purporting to date from early times were recorded in P traditions
to illustrate such laws.
In contrast to D, the PC, as such, contains no provisions calling for the
execution of those who worshiped other gods. Moreover, the PC includes
only one law or set of capital laws pertaining to offenses proscribed by
earlier laws.129

126
See generally, Phillips, Criminal Law (cited above in note 36), pp. 183–89.
127
See Theodor H. Gaster, Festivals of the Jewish Year (New York: Morrow Quill, 1978).
128
See Deut. 18:1-8.
129
See the law or laws regarding manslaughter and murder, Numbers 35:6-34, discussed in
Section B.1.f.ii. of this chapter. But see the P account of God’s warning to Noah, the
forefather of all later humankind: “For your lifeblood I will surely require a reckoning;
of every beast I will require it and of man; of every man’s brother I will require the life
of man. Whoever sheds the blood of man, by man shall his blood be shed; for God made
man in his own image” (Gen. 9:5-6). This sometimes so-called “natural” or “divine” law
evidently was thought to apply to all humankind, not only to Israel.
On Genesis 9:5-6, see generally Megivern, Death Penalty (cited above in note 1),
pp. 14–16. Megivern writes, “In the history of Christian theological legitimization of the
death penalty, Genesis 9:6 has probably been cited more frequently than any other text as
basic proof of the propriety of humans executing fellow human malefactors.” He points
out several problems with taking this text as justification for latter-day application of the
death penalty, including its failure to distinguish between negligent and intentional homi-
cide. He further observes: “Those who appeal to [Genesis 9] as their authority for blanket
114 Justice and Compassion in Biblical Law

i. Religious practices
Most of the new capital laws found in the PC relate to religious institu-
tions. Two or three had to do with protecting or preserving the exclusive
pre-eminence of the Jerusalem priests and their proto-typical predeces-
sors who, according to Priestly tradition, enjoyed similar status when offi-
ciating at the tabernacle or tent of meeting in ancient times.

(a) Protecting priestly prerogatives


Although the text of Numbers 3:38 is phrased as narrative rather than
law, its import is unmistakable:

And those to encamp before the tabernacle on the east, before the
tent of meeting toward the sunrise, were Moses and Aaron and his
sons, having charge of the rites within the sanctuary, whatever had to
be done for the people of Israel; and anyone else who came near was
to be put to death. (RSV)

According to P law, only priests (“Aaron” and his male descendants)


were to enjoy the privileges and perquisites associated with performing
the sacred ceremonies in the central sanctuary. Others who ventured to
“come near” were to be put to death.130
The Priestly story as to the fates of the Levites, Korah, Abiram, and On,
along with their supporters, found in Numbers, chapter 16, illustrates the
point that Levites were supposed to be content with their subordinate
status in the priestly hierarchy. According to Numbers 18:1-7, YHWH told
Aaron—the forefather of all priests, according to P tradition—that the
tribe of Levi, that is, all Levites, should minister to him and his sons, but
must keep their distance from the “vessels of the sanctuary,” “the altar and
all that is within the veil.” Levites or any others besides priests who ven-
tured to “come near” were to be put to death.131

approval of the death penalty invariably narrow its application without further ado to
the single [category] of first-degree murder. This kind of arbitrary restriction, devoid of
any textual basis, is a good example of why such proof-texting has been thoroughly
discredited.” Id., p. 15. Another commentator urges that Genesis 9:6 should be read
merely as a descriptive “proverb,” rather than as a law authorizing capital punishment.
Lind, Killing State (cited above in note 6), p. 44.
130
See also Num. 1:51; 3:10; 18:7, and other texts relating to priestly practices discussed by
Good, “Capital Punishment,” (cited in Chapter Three, note 13, pp. 968–69.
131
See also Num. 18:21-22 which warns that any Israelites other than priests or Levites who
came near the tent of meeting must die. In P tradition, the tent of meeting or tabernacle
was understood as the ancient prototype for the later Jerusalem Temple where priests
officiated after it was rebuilt in 515 BCE.
Capital Offenses 115

(b) Sabbath violations


That Israelites and their farm animals should do no work on the sabbath
had been specified in three earlier codes,132 but none of these codes had
made noncompliance a criminal offense. Under the PC, however, work-
ing on the sabbath became not only criminal, but a capital offense.133
What kinds of activities constituted work still remained to be defined.134
A story in Numbers 15:32-36, probably part of the P narrative, addresses
that matter. A man had been caught “gathering sticks on the sabbath
day.” “Because it had not been made plain what should be done to him”
(RSV),135 the man was put “in custody,” pending further disclosure of
divine intent (Num. 15:34). Whereupon, as the story goes, YHWH told
Moses that the man was to be put to death by stoning at the hands of “the
whole congregation” or community, which, accordingly, proceeded to
“stone him to death with stones” as directed in Numbers 15:35-36.

ii. Community inter-relations: manslaughter and murder


The only capital law in the PC concerned with relations between or
among members of the community is that dealing with manslaughter (or
unintentional homicide) and murder, found in Numbers 35:6-34. The
earlier version of this law in the RDC, Deuteronomy 19:4-13, has been
considered previously.136 Several aspects of this law will be examined
later, for instance, due process arrangements and, particularly, cities of
refuge. Three points stand out with respect to the definition of capital
offenses in Numbers 35.
In the first place, this PC law provides a much more detailed inventory
of indicia for intentional homicide or murder. The type of weapon used
was considered dispositive: if one person fatally struck another “with an
instrument of iron,” or with a stone or wooden weapon of lethal weight
or proportions (“by which a man may die” RSV), the crime was murder,

132
RD: Exod. 34:21; CC: Exod. 20:8-11; 23:12; D: Deut. 5:12-15.
133
Exod. 31:12-17; 35:2-3.
134
That issue is considered later both in the New Testament and Talmud, especially the lat-
ter’s tractate Shabbath. See, e.g., Mk 2:23–3:6; Lk. 6:1-11; and The Talmud, Shabbath
I & II, tr. H. Freedman (London: Soncino Press, 1938). See, e.g, Shabbath 11a-b
(I: 41-45); 12a-b (I: 45-50); 365-37a (I: 169-73).
135
According to Exodus 35:3, a PC provision, kindling a fire on the sabbath was prohibited;
but there was no specific prohibition against gathering sticks preliminary to doing so.
136
See Section B.1.e.i. of this chapter.
116 Justice and Compassion in Biblical Law

and the killer was to be put to death (Num. 35:16-18). Use of such weap-
ons raised an irrebuttable presumption of intent to kill.137
Intent as well as modus operandi were critical in other circumstances:

If [one person] stabbed [another] from hatred, or hurled [something]


at him, lying in wait, so that he died, or in enmity struck him with his
hand, so that he died, then he who struck the blow shall be put to
death; he is a murderer. (Num. 35:20-21 RSV)

Additionally, this law gives a somewhat different set of illustrations as to


actions deemed to constitute manslaughter or unintentional homicide:

But if he stabbed him suddenly without enmity, or hurled anything on


him without lying in wait, or used a stone, by which a man may die, and
without seeing him cast it upon him, so that he died, though he was not
his enemy, and did not seek his harm . . .[the offense may be deemed
manslaughter] (Num. 35:22-23 RSV)138

This text does not make clear under what circumstances one person
might stab another “suddenly without enmity.”139 Here, as in Exodus
21:12-13, an impromptu, rather than premeditated act is considered less
serious than a fatal, willful or intentional attack. Perhaps the act might
have been provoked by a sudden argument or insult, and carried out on
the spur of the moment or in “heat of passion.”140 The hurled stone
example clearly illustrates accidental (if reckless) conduct.141 Such types
of homicide evidently were considered less serious (or more excusable),
and therefore not subject to the death penalty.

137
See Falk, Law and Religion (cited in Chapter Four, note 6), p. 124. In effect, a person who
struck another with such weapons would be strictly liable and subject to execution if the
battery victim subsequently died. It is not clear whether such weapons might
constitute sufficient circumstantial evidence to convict, or whether, in addition, it would
have been necessary for two or more witnesses to have observed the fatal attack. See
Chapter Six, Section C.1. In modern American jurisprudence, use of deadly weapons
such as iron bars, baseball bats, bricks, or stones is considered evidence of intent to kill.
See Lafave, Criminal Law (cited above in note 38), pp. 661–63.
138
Compare Deut. 19:5.
139
Under Exodus 21:12-13, a man who fatally struck another might avoid the death penalty
“if he did not lie in wait for [the victim], but God let him fall into his hand.”
140
See LaFave on common law manslaughter and second degree murder, Criminal Law
(cited above in note 38), pp. 698–99, 703–17.
141
Compare the flying axe head example in Deut. 19:4-5.
Capital Offenses 117

Finally, the Numbers law adds a new, though somewhat odd, provision.
If a “manslayer” who has found sanctuary in a city of refuge and has been
judged innocent as to intentional homicide subsequently ventures
beyond that city’s boundaries any time before the death of the high
priest then in office,142 he may be killed by the victim’s “avenger of blood”
(Num. 35:26-28).143 But if the manslayer remains in the city of refuge
until the high priest’s death, he is then free to return to his home fully
protected by law (Num. 35:28).144 The text does not explain why a per-
son found innocent of murder must nevertheless be compelled to live
confined in a city of refuge afterwards, and risk execution by his victim’s
“avenger” if he leaves that city; nor is it explained why the death of the
high priest triggers his release from such constraint. Possibly this arrange-
ment was intended to appease victims’ friends or relatives who might
still harbor desire for vigilante or self-help justice notwithstanding the
verdict of innocence, while keeping adjudged manslayers safe from such
would-be avengers through protective detention. By the time of the
high priests’ death, perhaps avengers’ rage would have abated. Or the
high priest’s death might have been regarded as a divine signal that
the manslayer had served enough time.145

g. Capital laws continuing in effect, repealed, or abandoned?


As has been seen, capital offenses are to be found in each of the main law
codes. But how were these codes understood in relation to one another?
Was each code intended to include only those capital laws thought to be
in effect at the time it was promulgated? In that case, capital offenses
articulated in earlier codes, but not included in the new ones would have

142
Presumably the high priest would be in office in Jerusalem.
143
As to the Numbers text regarding cities of refuge, see Chapter Six, Section A.5.
144
Implicitly, if “the avenger of blood” were to kill him in these circumstances, the avenger
would be “guilty of blood” (Num. 35:27), and therefore subject to punishment, presum-
ably the death penalty. It is not clear whether Numbers 35:32 means that the manslayer
must pay ransom after the death of the high priest in order to be free to leave, or simply
that he could not obtain his freedom by paying ransom until the high priest had died.
The latter meaning may be more likely.
145
Westbrook suggests another possibility: that here the term “high priest” referred to the
priest or chief priest in whichever cities the homicide occurred, and that such priest
would have been ritually polluted if the manslayer returned during his lifetime. West-
brook, Studies (cited above in note 31), p. 81. It is not apparent, however, what priests
would be doing in cities other than Jerusalem a century or more after the Deutero-
nomic Reform, why such priests would be designated as “the high priest,” or why the
manslayer’s return would not ritually pollute any successor local priest.
118 Justice and Compassion in Biblical Law

been effectively repealed or considered no longer operative. Or were


provisions in the later codes meant to supplement those set down in
earlier codes? Since all the first four, and possibly the first five books of
the Bible were preserved and edited under priestly auspices, it would not
be surprising if the P editors understood that capital laws contained in
the earlier codes remained in effect, along with those added in the PC.
On the other hand, the P editors evidently were interested in preserving
old traditions, and might have included earlier laws simply out of respect
for their antiquity, without intending them to remain binding in actual
practice. Likewise, we cannot be certain regarding the extent to which
the later codes were meant to replace, or only to supplement laws and
codes promulgated or operative in still earlier times. Some laws may
indeed have fallen into disuse, or otherwise been effectively repealed. At
all events, it may be instructive to conclude this discussion of capital
offenses by tracking particular laws as they appear in, or were omitted
from, subsequent codes.
Comparison of the capital laws found in each of the codes indicates
that in many instances the new laws were intended to amend or replace
earlier provisions. Surprisingly few capital laws detailed in one code are
repeated in later codes. Arguably, such laws could, in effect, have been
considered abandoned. On the other hand, each code includes some
number of new capital laws. Consequently, it cannot accurately be said
that the concept of capital punishment as such was abandoned in
biblical times. Several newer laws, however, do appear to mitigate the
severity of earlier provisions.
Of all the capital offenses, only one, murder, appears in as many as three
codes: the CC (Exod. 21:12-14); the RDC (Deut. 19:4-13); and the PC
(Num. 35:6-34). In each instance, these laws undertake to distinguish
between murder and some less serious type of homicide.146 Each of the
later versions modifies or adds to the earlier formulation(s). For instance,
both Deuteronomy 19:4-13 and Numbers 35:6-34 distinguish between
intentional murder and manslaughter, and make clear that the latter is not
a capital offense.147 It appears likely that these later versions were intended
to amend or supersede earlier laws that did not make this distinction.
Only five other capital laws are found in as many as two codes.
One is the provision against kidnapping in CC (Exod. 21:16) and

146
Compare Lev. 24:17, 21 in H, which does not distinguish murder from manslaughter,
but simply makes it a capital offense if a person “kills a man.”
147
See Sections B.1.b.i., and B.1.f.ii. of this chapter.
Capital Offenses 119

D (Deut. 24:7). The later, Deuteronomic law provides for capital punish-
ment only if the kidnapped victim was an Israelite, and if the kidnaper
has treated his victim as a slave or sold him. Here again, the later version
evidently qualifies the earlier.148 Another is the offense of cursing either
parent, found in the CC (Exod. 21:17) and H (Lev. 20:9), both stated in
similar terms.149 The third is the prohibition against “buggery” or sexual
intercourse with an animal. This is stated tersely in the CC (Exod. 22:19)
and then restated in H, in somewhat qualified terms (Lev. 20:15-16).150
The fourth is adultery with a married woman, found in both D (Deut.
22:22) and H (Lev. 20:10). Finally, both the CC (Exod. 22:20) and the
RDC (Deut. 17:2-7) include provisions making, respectively, offering sac-
rifices to, and worship and serving other gods capital offenses. Kidnap-
ping is not mentioned in H, RDC, or PC; and neither the laws against
cursing parents nor those against buggery with beasts are repeated in D,
RDC, or the PC. Adultery is not included in the two latest codes, RDC
and PC. However, the relatively late stories of Susanna151 and “the woman
caught in adultery” (Jn 8:3-11) suggest that adultery may have continued
to be regarded as a capital offense in the late biblical period.
Three other laws found in early codes appear to have been comple-
mented or qualified in later codes. The Covenant Code condemns
sorceresses to death (Exod. 22:18). Later, H provides for the execution
of mediums or wizards, whether male or female (Lev. 20:27). Evidently
these laws were not always enforced in practice.152 Nothing is said about
sorceresses, mediums, or wizards in D, or in the later RDC, or the PC.
The Covenant Code made it a capital offense to offer sacrifice to other
gods (Exod. 22:20). Similarly, but more broadly, the RDC prescribed the
death penalty for individuals who worshiped or served other gods (Deut.
17:2-7); this law would apply whether or not such worshipers offered
sacrifices. Such laws are not to be found in D or H, and were not repeated
in the PC. Finally, D made it a capital offense for a man to have sexual
intercourse with a woman betrothed to another man within city limits

148
See Sections B.1.b.v. and B.1.c.i. of this chapter.
149
Compare Prov. 20:20, which may or may not imply that the offender will be subject to
capital punishment: “If one curses his father or his mother his lamp will be put out in
utter darkness.” This text could be read to mean that those who curse their parents need
not be put to death, but would instead experience some form of divine retribution.
150
See Sections B.1.vii.(b) and B.1.d.ii.(a) of this chapter.
151
See Susanna, v. 41, and Chapter Three, Section I.
152
See 1 Sam. 28:3-25 (Saul had deported other wizards and mediums and consulted the
medium at Endor). See also Ezek. 13:17-23, which seems to say that YHWH would
punish female occult practitioners.
120 Justice and Compassion in Biblical Law

(Deut. 22:23-27). Here both the man and the woman were to be put to
death.153 The Holiness Code subsequently added an exception in the
case of a betrothed woman who was a slave. In that circumstance, neither
the woman nor the man would be subject to the death penalty
(Lev. 19:20-22). This H law evidently presupposes that the provisions of
Deuteronomy 22:23-27 were otherwise still operative.
All other capital offenses are found only once: in one code or another.
This fact, as such, does not tell us whether such laws were still considered
to apply in later times. Some appear to have been abandoned or
mitigated. Others may have remained in effect.
The following capital offenses articulated in CC are not repeated in
any later codes: children striking either parent (Exod. 21:15); wrestling
males inadvertently causing the death of a pregnant woman (Exod.
21:22-25); and failure to restrain an ox previously known to gore that
then kills someone (Exod. 21:28-32).154 From Proverbs 19:26, it appears
that a son who struck (or “did violence”) to his father in later times,
though causing “shame and reproach,” would not be put to death.
Possibly these laws, unique to the CC, fell into abeyance or were other-
wise mitigated in practice.
The Deuteronomic Code mandates the death penalty for two catego-
ries of offenders not mentioned in any other code: the ungovernable son
(Deut. 21:18-21); and the new bride whose husband accuses her of
lacking “tokens of virginity” when such “tokens” are not subsequently
produced (Deut. 22:13-21).155 Proverbs 19:26 suggests that ungovernable
sons may not have been executed in later times. The laws and underlying
presumptions of guilt concerning tokens of virginity (Deut. 22:13-21)
and adultery with betrothed virgins in cities (Deut. 22:23-24) readily
could have proven impractical as well as morally objectionable. From the
facts that no biblical narratives report instances when these laws were
enforced, and the absence of such laws in the later codes, it might be
concluded that these laws had been abandoned or tacitly repealed.
Five new and unique types of capital offenses appear only in H. One
concerns the practice of giving (or sacrificing) children to Molech

153
See Section B.1.c.ii.(b) of this chapter, describing different presumptions depending on
whether the encounter occurs in urban or rural areas. The Gospel of Matthew’s account
of Joseph’s reaction upon discovering that Mary, his betrothed, was pregnant, could
suggest that by late biblical times, this kind of offense was no longer considered capital:
“. . . Joseph, being a just man and unwilling to put her to shame, resolved to divorce her
quietly” (Mt. 1:18-19 (RSV), emphasis supplied).
154
See Sections B.1.b.ii, and B.1.b.iv of this chapter.
155
See Sections B.1.c.ii.(a) and (b) of this chapter, and Chapter Six, Section B.2.
Capital Offenses 121

(Lev. 20:1-5). Several types of incestuous relationships are condemned


(Lev. 20:11-12, 14). Males who engage in homosexual intercourse are to
be put to death (Lev. 20:13). A priest’s daughter who practices harlotry
is to be executed (Lev. 21:9).156 Finally, blaspheming “the Name” is made
punishable by death (Lev. 24:10-23). Again, there are no subsequent
biblical cases of execution for these offenses. The fact such laws are not
found in the RDC or the PC may or may not mean that they were
abandoned in later times.
The Revised Deuteronomic Code promulgates six unique capital laws.
Three of these laws concern enticing Israelites to worship other gods
(Deut. 13:1-5, 6-11, and 12-18). Another concerns false prophets and
prophets who prophesy in the name of other gods (Deut. 18:20-22). The
fifth makes “presumptuous” refusal to obey a court order a capital offense
(Deut. 17:12). And the sixth prescribes the death penalty for any mali-
cious witness who offers false testimony in a capital case (Deut. 19:16-21).
Enticing others to commit apostasy and allotheism can be seen as
extensions of the capital offense of sacrificing to other gods (Exod. 22:20;
Deut. 17:2-7). Concern about false prophets also was expressed by
Jeremiah and Ezekiel157 whose early careers may have been contempo-
rary with the Deuteronomic Reform. Earlier biblical tradition also
reported favorably the execution of prophets (and priests) who served
and advocated worship of other gods.158 On the other hand, there was no
biblical precedent for killing YHWH prophets who prophesied falsely.
Their fate was to be left to YHWH’s judgment.159 The provision governing
prophets prophesying on behalf of other gods may have put prior com-
mon law into statutory form. The law regarding failure to obey court
orders also may have derived from earlier practice or case law. If the late
biblical story of Susanna is taken as evidence, the provision as to
malicious, false witnesses remained in effect throughout the remainder

156
It is not certain whether this provision was meant to apply only if the woman became a
professional prostitute; or whether it might also apply if, while unmarried, she had sexual
intercourse with a male. Compare Genesis 38:24 where, in an early tradition, a widow
who became pregnant after her husband’s death was accused of harlotry, here assumed
to have been a capital offense. But see Westbrook, “Adultery” (cited above in note 73),
p. 572, suggesting that the widow’s father-in-law, Judah, representing his minor son to
whom she was tacitly betrothed under the law or practice of levirate marriage, accused
her of adultery. As to levirate marriage, see Chapter Eight, Section B.2.c.
157
See, e.g., Jer. 23:9-40; Ezek. 13:1-16.
158
1 Kgs 18:40. See also the fate of the priests of the bogus god, Bel, in the late biblical
story of Bel and the Dragon. Here, however, the Persian monarch executes the priests
in accordance with his own authority (vv. 8, 21-22), not under Israelite law.
159
See, e.g., Mic. 3:5-8; Jer. 28:12-17.
122 Justice and Compassion in Biblical Law

of the biblical period.160 None of these six new RDC laws is repeated in
the PC.
As noted, homicide is the only earlier capital offense included in the
PC.161 The new capital laws found in the PC concerned working on the
sabbath (Exod. 35:2-3; Num. 15:32-36); Levites encroaching on the pre-
rogatives of priests (Num. 3:38; 16:1-49); and all other persons except
priests coming too close to the tabernacle’s (or Jerusalem Temple’s) sacred
precincts (Num. 18:7, 22).
So it remains unclear whether earlier capital laws omitted from later
codes were thought no longer in effect, or whether, from the standpoint
of later biblical jurisprudence, all capital laws were thought to remain
operative. In several instances, the later laws seem to have been meant to
modify or qualify earlier ones. But in other instances, the later laws seem
to presuppose that earlier ones remained in effect. If at any particular
time only the capital offenses contained in the latest code were applicable,
less than a dozen such offenses then would have been “on the books.”
But if the capital offenses contained in the codes were cumulative, that
is, retained and added to by the promulgation of each new code, the
total such offenses would have come to nearly 50 as of the final compila-
tion of the laws found in Exodus through Deuteronomy.

2. Rationales: Why Capital Punishment?


Most of the texts that offer a rationale or justification for capital punish-
ment are to be found in D and the RDC. The CC provides no rationale
or explanation whatsoever. The Holiness Code does so only once; and
the PC likewise presents such justification in only one instance. Taken
together, the laws embodied in these codes articulate three distinct ratio-
nales or purposes: (1) vindicating the image of God inherent in human
life; (2) purifying the community or the land by disabling or removing
offenders; and (3) deterring others from committing like offenses.

a. Vindicating the image of God


The epilogue to the flood narrative suggests a distinctive rationale for
the death penalty in homicide cases. After the flood was over, God tells
Noah:

160
See Susanna vv. 61-62.
161
See Section B.1.f.ii. of this chapter.
Capital Offenses 123

For your lifeblood I will surely require a reckoning; of every beast I will
require it and of man; of every man’s brother I will require the life of
man. Whoever sheds the blood of man, by man shall his blood be shed;
for God made man in his own image. (Gen. 9:5-6 RSV)

Here the rationale is, in effect, that because a human being is in some
sense in God’s image, as well as made by God, to kill a human is an act of
sacrilege, an act so heinous that any one (even a beast) who fails to
respect that image deserves to die.162 Implicitly, also, this rationale sug-
gests that every man is a “brother” of every other man and should there-
fore respect the other’s life.163 Genesis 9:5-6 does not specifically
distinguish between manslaughter and murder.164 It would be tempting
to read “intentionally” before “sheds” or “innocent” before “blood of
man,” so as to reconcile this text with the distinction elaborated in
Numbers 35:9-34. Such distinction may have been intended in Genesis 9,
which quite possibly, like Numbers 35, represents P narrative. On the
other hand, if Genesis 9 represents more ancient tradition,165 it could be
that the distinction between manslaughter and murder made in Deuter-
onomy 19:4-13 and Numbers 35:9-34 was meant to delimit the broad
scope of Genesis 9:5-6 (and also, perhaps that of Lev. 24:17, 21b) in the
same way that a similar distinction set out in Exodus 21:13-14 qualifies
Exodus 21:12 which reads “Whoever strikes a man so that he dies shall be
put to death.”

b. Purging the land and Israel of guilt and evil


The Priestly Code provides a somewhat different justification for the
death penalty. Numbers 35:31-32 declares that neither a murderer nor a

162
Thus Igor Primovatz, Justifying Legal Punishment (Atlantic Highlands, NJ: Humanities Press
Int’l, 1989), p. 158. See Norman P. Dake, “Who Deserves to Live? Who Deserves to Die?
Reflections on Capital Punishment,” in Stassen, ed., Capital Punishment (cited above in
note 3), p. 162. See also above, note 129.
163
Compare the Cain/Abel story in Genesis 4:1-16. And see generally, Megivern, The Death
Penalty (cited above in note 1), pp. 14–16. Conversely, both the “image of God” and
“every man a brother” rationales could equally justify refusal to execute persons who
have committed homicide. See Aaron M. Schreiber, Jewish Law and Decision-Making:
A Study Through Time (Temple Univ. Press, 1979), p. 42: “Does this supply the reason for
the extremely severe punishment provided for murder? Could it, on the other hand, be
utilized to protect the accused, who was also created in God’s image?” See also Blidstein,
“Capital Punishment” (cited above in note 6), p. 113.
164
So also Lev. 24:17, 21b.
165
Thus Joseph Blenkinsopp, Wisdom and Law in the Old Testament: The Ordering of Life in
Israel and Early Judaism, rev. edn. (Oxford Univ. Press, 1995), pp. 92–93.
124 Justice and Compassion in Biblical Law

manslayer sheltered in a city of refuge may be ransomed. Prior to this


law, perhaps, ransom was allowed: by paying ransom, murderers might
spare their lives, and manslayers (those who have fled to a city of refuge)
might “return to dwell in the land before the death of the high priest.”166
Such ransom no longer would be allowed:

You shall not thus pollute the land in which you live; for blood pollutes
the land, and no expiation can be made for the land, for the blood that
is shed in it, except by the blood of him who shed it. You shall not defile
the land in which you live, in the midst of which I dwell; for I YHWH
dwell in the midst of the people of Israel. (Num. 35:33-34 RSV)

Here the ultimate rationale for executing (or allowing the avenger of
blood to execute) a murderer is to prevent pollution of the land, which
in turn would be an affront to YHWH.167 Since the only expiation for
shedding (innocent) blood is the blood of the murderer, the murderer’s
blood must be shed. It is unclear how this rationale relates to the require-
ment that the manslayer remain confined within his city of refuge until
the death of the high priest.168
A somewhat similar theory for applying the death penalty in a murder
case is indicated in Deuteronomy 19:13 (RSV): “You shall purge the guilt
of innocent blood169 from Israel so that it may be well with you.” Again
we see here, implicitly, the idea that shedding innocent blood pollutes
the land, which can then be purified only by shedding the blood of the
murderer. The one, so to speak, counter-acts the other. Deuteronomy
21:1-9 casts some additional light on this matter. This text sets out what
is to be done if a person has been murdered in open country, but the
murderer cannot be identified.170 The elders of the nearest city are to

166
Num. 35:31-32.
167
Compare Deut. 23:12-14, discussed in Section B.1.f.ii of this chapter.
168
See Num. 35:31-32. Possibly this requirement reflects an underlying belief that manslay-
ers must make expiation for the blood they have shed, even though they did not intend
to kill their victims. In such cases, somehow, keeping manslayers in custody would be
enough to prevent pollution of the land. We see here a mitigation of the unqualified
requirement of Gen. 9:6, “Whoever sheds the blood of man, by man shall his blood be
shed; for God made man in his own image.” There, no distinction is made between
manslayer and murderer; both were to be put to death. As to Gen. 9:5-6, see Megivern’s
comment, quoted above in note 129.
169
Alternate translation: “the blood of the innocent.” See generally, Barmash, Homicide,
above Chapter Four, n.6, pp. 84–115, examining biblical and ancient Near Eastern tradi-
tions indicating that blood, particularly when shed in a homicide, polluted the land.
170
Strangely, there is no corresponding provision in case the murder took place within a
city. Perhaps it was assumed that in cities, murderers always would be found out.
Capital Offenses 125

perform a ceremony involving breaking the neck of a young heifer in a


particular kind of setting, and then reciting a statement asking YHWH to
forgive “the guilt of innocent blood” that otherwise would be imputed
to the people of Israel (Deut. 21:7-8). This ceremony would thereby
“purge the guilt of innocent blood” from Israel’s midst (Deut. 21:9).
One way or the other, Israel would be absolved from “the guilt of inno-
cent blood,” and thereby, it was to be hoped, spared any future tangible
expression of YHWH’s disfavor.
A similar rationale for the death penalty is repeated in both D and
RDC laws with respect to a number of capital offenses: “So shall you
purge the evil from your midst” or “from Israel.”171 This rationale appears
in explanation for the death penalty in the following instances: prophets
or “dreamers” who urge Israelites to go and serve other gods (Deut. 13:5
RSV); urban persons who have gone, served, and worshiped other gods
(Deut. 17:7); persons who fail to obey judicial verdicts (Deut. 17:12);
malicious witnesses who falsely charge others with capital offenses (Deut.
19:19); ungovernable sons (Deut. 21:21); adulterers (Deut. 22:22);
betrothed virgins found lying with another man inside city limits (Deut.
22:24); and certain kinds of kidnapers (Deut. 24:7). Here the evident
intent is to remove persons who have committed serious offenses from
the community. In effect, capital punishment would permanently disable
the offenders, who would thus never recommit these offenses. It also
seems to have been understood that doing so would somehow remove or
cancel out the evil deeds they had done as well.172 Implicitly, of course,
executing such offenders could have a deterrent effect on others con-
templating similar illicit activities.

c. Deterrence
Several laws in D and the RDC explicitly include a statement of intent to
deter others from committing similar offenses in future. Thus with respect
to executing (by stoning) close family members or friends who promote
allotheism it is said: “And all Israel shall hear, and fear, and never again
do any such wickedness as this among you” (Deut. 13:11 RSV). So also in

171
Compare Lev. 20:14, which justifies application of the death penalty in the case of a man
who “takes a wife and her mother also” as a way of purifying the community: “That there
may be no wickedness among you” (RSV).
172
On “purging evil” as a biblical rationale for capital punishment, see also Bailey, Capital
Punishment (cited above in note 6), pp. 32–35.
126 Justice and Compassion in Biblical Law

the case of persons executed for acting “presumptuously” by disobeying


court orders: “And all the people shall hear, and fear, and not act
presumptuously again” (Deut. 17:13 RSV). And again in the case of those
punished under the lex talionis for maliciously offering false, incriminat-
ing testimony: “And the rest shall hear, and fear, and shall never again
commit any such evil among you” (Deut. 19:20 RSV). Finally, as to the
execution of an ungovernable son: “And all Israel shall hear, and fear”
(Deut. 21:21 RSV).173 Deuteronomy 21:22-23 refers to the practice of
hanging on a tree a person who has been put to death for committing a
capital crime. Given its context, following immediately after a statement
regarding deterrence in Deuteronomy 21:21, it may be inferred that
executed criminals were sometimes hung on trees in order to deter
others from committing capital offenses.174
Clearly, biblical laws provided for the execution of persons who had
committed a number of what were deemed serious offenses against other
persons or against YHWH. What is striking is the extent to which persons
accused of capital crimes were accorded what, in modern jurisprudential
terms, could be characterized as due process protections.
Such protections are described in the following chapter.

173
On deterrence as a biblical rationale, see also Bailey, Capital Punishment (cited above in
note 6), pp. 31–32.
174
Thus Spitz, “Jewish Tradition” (cited above in note 29), p. 345.
Chapter 6

Due Process Protections

Then Moses and the elders of Israel charged all the people as follows: Keep the
entire commandment that I am commanding you today. On the day that you
cross over the Jordan into the land that YHWH your God is giving you, you
shall set up large stones and cover them with plaster. You shall write on them all
the words of this law when you have crossed over, to enter the land that YHWH
your God is giving you, a land flowing with milk and honey . . . You shall write
on the stones all the words of this law very clearly.
Deuteronomy 27:1-3, 8

Keep far from a false charge, and do not kill the innocent and those in the right,
for I will not acquit the guilty.
Exodus 23:7

Biblical law contains no due process clause as such. And, of course, the
precise meaning of due process is ever subject to interpretation. Never-
theless, the relatively modern concept “due process” serves as an apt
characterization of a number of biblical laws that served to protect the
innocent accused, and thus also the larger society from miscarriage of
justice. These laws are considered here.
One basic aspect of modern due process is the requirement that in
order for a person to be convicted of a crime, that person should have
been “on notice” that the conduct in question was a punishable offense
prior to engaging in such conduct. To satisfy this requirement, the per-
son charged should either have known, because “the law” had already
announced or “published,” or because he or she had been personally
warned that such conduct was unlawful and subject to penalty. To the
extent that biblical law was periodically read or recited in public, written
down, or otherwise made known to those subject to its terms,1 the

1
Several other biblical texts describe periodic occasions when arrangements were made to
read or otherwise bring the substance of the law formally to the attention of all Israelites
128 Justice and Compassion in Biblical Law

notice element of due process would have been satisfied.2 For example,
Deuteronomy 31:9-13:

Then Moses wrote down this law, and gave it to the priests, the sons of
Levi, who carried the ark of the covenant of YHWH, and to all the elders
of Israel. Moses commanded them: “Every seventh year, in the scheduled
year of remission, during the festival of booths, when all Israel comes to
appear before YHWH your God at the place that he will choose, you shall
read this law before all Israel in their hearing. Assemble the people—
men, women, and children, as well as the aliens residing in your towns—
so that they may hear and learn to fear YHWH your God and to observe
diligently all the words of this law, and so that their children, who have
not known it, may hear and learn to fear YHWH your God, as long as you
live in the land that your are crossing over the Jordan to possess.”

Thus there should have been little room for doubt as to the kinds of
unlawful conduct that would be subject to the death penalty or other
forms of punishment. Biblical laws also provide several other features of
due process protection.
Many biblical “due process” provisions give implicit expression to the
fundamental concerns that only those who actually committed capital
offenses with the requisite elements of malicious intent or willful and
harmful conduct should be executed, and that those who were innocent
should be spared.
A number of laws provide, in effect, for equal protection, or perhaps
more aptly, the equal standing of certain classes of persons before the law.
In effect, these laws call for impartiality in judgment, a basic due process
concern, lest the accused be convicted or punished because of who they
are, rather than what they had done.3
Several other laws provide that persons who had committed homicide
might seek protection from self-help justice by finding refuge in certain

or Jews. See, e.g., Exod. 24:3-4; 34:27-32; Deut. 4:1-40; 6:1-25; 27:1-3; Josh. 8:30-35; 24:
1-28; Neh. 8:1-8. See Cohn, Human Rights (cited in Chapter Five, note 29), p. 225.
See generally, Martin Noth, The History of Israel (New York: Harper & Bros., 1958),
pp. 100–101. Exodus 21:29 presents another instance of notice: the goring ex’s owner
must have been warned. See Chapter Five, Section B.1.b.ii.(b).
2
In some instances, however, the terms of certain biblical laws appear overbroad. Those
prosecuted under such laws might well have complained that they did not receive
adequate notice, or were being prosecuted under laws promulgated ex post facto. See most
notably the case of the man charged with picking up sticks on the sabbath. See Chapter Five,
Section B.1.f.i.(b). See also the case of the blasphemer, Chapter Five, Section B.1.d.i.(c).
3
See Chapter Four.
Due Process Protections 129

sanctuaries or “cities of refuge,” pending further inquiry or trial. Here,


concern was to protect the innocent from the fate deserved only by the
guilty. Biblical tradition records a few trial scenes that illustrate various
features of criminal procedure, including some that might aptly be
described as due process protections.4
Many biblical laws could be read as expressing what has come to be
known in modern law as concern for “fundamental fairness.” In this
connection, it is noteworthy that many laws (and some reported cases)
emphasize the importance of investigating the facts or examining
evidence. Some provisions evidently were intended to assure truthful
testimony by witnesses in order to protect the rights or interests of the
innocent accused. It is uncertain whether unanimous verdicts were
required in order to convict the accused of capital or other criminal
charges. In the sentencing phase, several laws mandate that punish-
ments, including the death penalty, be narrowly tailored, applied impar-
tially, and only to those persons found guilty of the offense charged.
Moreover, punishments or penalties must not exceed what was deemed
proportionate to the offense.

A. Places or Cities of Refuge: Interim Protection


for Offenders Awaiting Trial

Laws distinguishing between manslaughter and murder already have


been considered.5 These laws regularly provided protection against
“avengers of blood” or others seeking self-help justice, by calling for the
establishment of sanctuaries where persons who had committed homi-
cide might seek refuge pending some sort of judicial proceedings.
Though the nature of such proceedings is not spelled out, some of the
laws provide clues.

1. Exodus 21:12-14: A “Place” of Asylum


The earliest such law is found in the CC, Exodus 21:12-14. Both the
willful murderer and the man who fatally injures another but without
“lying in wait” (RSV) in order to do so may escape to “a place” which
YHWH would “appoint” (Exod. 21:13-14). The willful murderer must

4
See Chapter Three.
5
See Chapter Five, Sections B.1.e.i. and B.1.f.ii.
130 Justice and Compassion in Biblical Law

be taken from YHWH’s altar and put to death. No fact-finding proce-


dures are indicated, but some kind of evidentiary hearing may be
implicit.6 Or it may have been presumed that everyone involved would
know whether or not the attack had been premeditated.
This law refers to “a place” to which homicide perpetrators might flee,
but does not specifically mention Jerusalem, Shechem, or any other par-
ticular location. Reference to God’s “altar” (Exod. 21:14) suggests that
the place of refuge was a religious sanctuary or cult shrine. Prior to the
Deuteronomic Reform, there probably had been many such sanctuaries
throughout the land of Judah.7 Perhaps all such sanctuaries could have
served as places of refuge.8

2. 1 Kings 1:49-53; 2:28-29: “The Horns of the Altar”


Two instances when a religious altar functioned or was sought as a place
of refuge are found early in 1 Kings. Both may be part of the “J” or Yahwist
“court history” dating back to the 10th century BCE.9 The first, 1 Kings
1:49-53, describes how Adonijah, David’s oldest surviving son, whose
expectation to succeed him as king was thwarted by his much younger
brother, Solomon’s sudden enthronement, “went and caught hold of the
horns of the altar” (RSV) presumably a sanctuary in Jerusalem.10 By doing
so, Adonijah hoped to be spared Solomon’s purge of possible rivals to
the throne.11 Soon afterwards, Joab, David’s faithful head officer and
friend, also fled to “the tent of YHWH and caught hold of the horns of
the altar” (1 Kings 2:28-29 RSV), hoping to escape Solomon’s purge of
Adonijah’s erstwhile supporters.12 Nevertheless, Solomon ordered Joab’s

6
See Phillips, Criminal Law (cited in Chapter Five, note 36), p. 100: “[I]f the elders judged
that the killing was premeditated, they were to take the murderer from the altar and
execute him” (Exod. 21:14). See also id., pp. 100–101 (reconstructing “the procedures
which would have been adopted following an alleged accidental killing”).
7
See Chapter Five, Section B.1.e.
8
See de Vaux (cited in Chapter Five, note 30), p. 160: “The ‘place’ thus denoted . . . a
sanctuary, where there is an altar, apparently any lawful sanctuary of Yahweh . . .” But see
Barmash, Homicide (cited in Chapter Four, note 6), pp. 71–93.
9
See B. Davie Napier, The Song of the Vineyard: A Guide Through the Old Testament, rev. edn.
(Philadelphia: Fortress Press, 1981), pp. 128–37.
10
Solomon had not yet had the Temple built in Jerusalem. Previously, David had an altar
erected there. According to 2 Sam. 7:2, the ark of the covenant was placed in a tent.
Earlier, the ark had been located in the Temple at Shiloh (1 Sam. 3:2-3, 21).
11
Solomon later had Adonijah put to death on a minor pretext. See below note 13.
12
Joab had supported Adonijah prior to the palace revolution that placed Solomon on the
throne.
Due Process Protections 131

execution, on the ground that he ( Joab) had previously shed blood


“without cause” (1 Kgs 2:28-34).13 Even though in these circumstances
this rationale probably was pretextual, Solomon’s order could have been
permissible under Exodus 21:14, since Joab had willfully murdered
others.14

3. Deuteronomy 19:1-13: Cities of Refuge—“lest innocent blood be


shed in your land”
No biblical texts explicitly state that other ancient cult shrines ever served
as places of refuge for persons who had committed homicide. However,
certain provisions that were part of the Deuteronomic Reform program
prompt the inference that prior to that Reform, such shrines had so func-
tioned. Once all shrines other than the Jerusalem Temple were closed
down pursuant to the Deuteronomic Reform, it would have been a long
way to Jerusalem for any manslayer seeking to escape would-be avengers.
Consequently, the Revised Deuteronomic Code provided for the establish-
ment of six cities15 to which a manslayer might “flee . . . and save his life; lest
the avenger of blood in hot anger pursue . . . and overtake him, because the
way is long, and wound him mortally, though the man did not deserve
to die” (Deut. 19:5-6 RSV).
It may reasonably be inferred that these six cities of refuge were meant
to replace some (or possibly all) of the cult shrines that, prior to the
Deuteronomic Reform, had served a similar function. The RDC provided
initially for three cities of refuge, one it seems, in each of three regions
(Deut. 19:1-3); but then goes on to call for the establishment of three
additional such cities when the territory of Israel expanded (Deut. 19:
8-10). Experience may have shown that three such cities were not enough
to replace the numerous cult shrines that had so served in earlier times.
The provision in Deuteronomy 19:6 calling for the establishment of
three additional cities of refuge emphatically underscores the funda-

13
Another text (possibly added later in order to present Solomon’s actions in a more
favorable light) states that on his deathbed, David had instructed Solomon to kill Joab
and Shimei. 1 Kings 2:5-6. Solomon also sent an assassin to kill Adonijah, his own
brother, on the pretext that Adonijah had dared to ask to have Abishag, David’s former
nurse (if not also concubine) as his wife. 1 Kgs 2:13:25. First Kings 1:1-31 can be read to
mean that Solomon had usurped the throne which rightfully should have passed to
Adonijah, as David’s oldest surviving son.
14
See 2 Sam. 3:26-30; 18:9-15; 20:8-13.
15
Deut. 19:1-10.
132 Justice and Compassion in Biblical Law

mental principle implicit in many other biblical laws: Innocent persons


must not be put to death. The innocent accused might seek protection
in such additional sanctuaries “lest innocent blood be shed in your land . . . ,
and so the guilt of bloodshed be upon you.”16 Applying the death penalty to an
innocent person not only wrongs that person, but also brings “the guilt
of bloodshed” upon the entire community that allowed the execution to
go forward.
The Jerusalem Temple also may have continued to function as a place
of refuge.17 If so, by the late 7th century BCE, there would have been
seven such places. The Revised Deuteronomic Code does not identify
the six cities. Somewhat later biblical texts provide for and name several
such cities of refuge or sanctuaries.

4. Deuteronomy 4:41-43; Joshua 20–21—More Such Provisions


A text attributable to the Deuteronomic Historian (DH) names three such
cities, all “in the east beyond the Jordan”: “Bezer . . . for the Reubenites, . . .
Ramoth . . . for the Gadites, and Golan . . . for the Manassites” (Deut.
4:41-43 RSV). Possibly DH thought of these as three more cities of refuge,
bringing the total to nine, apart from Jerusalem. Or DH may have
assumed that each “tribe” of Israel, like these three in the trans-Jordan,
had its own city of refuge, in which case there would have been twelve or
thirteen. The Deuteronomic Historian probably was writing and editing
earlier traditions c. 550 BCE, well after the closing of the numerous local
altars, sanctuaries or cult shrines mandated by the Deuteronomic Reform
nearly a century earlier.
Another tradition, also, perhaps, attributable to DH, names a total of six
cities of refuge: the same three in Trans-Jordan, Bezer, Ramoth, and Golan,
together with “Kedesh in Galilee in the hill country of Naphtali,” “Shechem
in the hill country of Ephraim,” and “Kiriath-arba (that is, Hebron) in the
hill country of Judah” ( Josh. 20:1-9 RSV). The text in Joshua includes

16
Deut. 19:10 (RSV). As will be seen, numerous other biblical due process laws likewise
were intended to protect innocent persons from wrongful or mistaken execution for
capital offenses. See Sections B, C, and D of this chapter. See Craig A. Stern, “Torah and
Murder: The Cities of Refuge and Anglo American Law,” 35 Valparaiso Univ. L. Rev.
461 (2001), suggesting ways Anglo-American law may have been influenced by biblical
laws regarding cities of refuge.
17
Compare Jeremiah chapters 7 and 26, where the prophet warns his contemporaries
that they will not be spared YHWH’s judgment by seeking sanctuary or safety in the
Jerusalem Temple, for it too would be destroyed. See Chapter Three, Section F.
Due Process Protections 133

specific procedures for hearing cases involving manslayers who killed


people “without intent or by mistake.”18 Five of these cities are identified
generically in Joshua 21 as “the city of refuge for the slayer”: Hebron,
Shechem, Golan, Kedesh, and Ramoth.19 Here Hebron is said to have
been given to the descendents of Aaron, and the other cities of refuge to
various “families of the Levites,” the Kohathites, Gershonites, and
Merarites. These texts may contain vestiges of tradition or recollection
that priests or Levites once officiated at shrines in those cities that later
became secular cities of refuge following the Deuteronomic Reform.20

5. Numbers 35; 1 Chronicles 6—More Such Cities


Numbers chapter 35, which is part of the PC, provides the most extended
description of provisions concerning cities of refuge. The cities are not
named, but there were said to be six of them, all given to “the Levites”:21
“three . . . beyond the Jordan, and three . . . in the land of Canaan”
(Num. 35:13). Here explicit mention is made of a trial or hearing “before
the congregation.”22 On the other hand, 1 Chronicles reports that “the
sons of Aaron” were given eleven “cities of refuge”: Hebron, Libnah,
Jaffir, Eshtemoa, Hilen, Debir, Ashan, Beth-shemesh, Geba, Alemeth,
and Anathoth (1 Chron. 6:57-60), while the sons of Kohath (one of the
Levitical families according to 1 Chron. 6:1, 16)23 were given eight cities
of refuge: Shechem, Gezer, Jokmeam, Beth-horon, Aijalon, Gath-
rimmon, Aner, and Bileam (1 Chron. 6:66-70). On this count, there
would have been nineteen cities of refuge, apart from Jerusalem. Possibly
the Chronicler should not be considered a reliable historian,24 but here

18
See Section B.2., of this chapter.
19
Josh. 21:13, 21, 27, 32, and 38. Bezer is mentioned, but not characterized here as a city
of refuge (Josh. 21:36). Chapter 21 distinguishes between priests (descendents of Aaron)
and Levites; the latter are divided into various Levitical families. These distinctions are
characteristic of P tradition, and suggest that Joshua 21 may have been edited under
Priestly auspices. Much of chapter 21 substantively resembles P provisions in Numbers
chapter 35.
20
On cities of refuge, see generally de Vaux (cited in Chapter Five, note 30), pp. 160–62.
21
Num. 35:6. Compare Josh. 21:13, according to which one of the six cities, Hebron, was
to be given to the sons of Aaron.
22
Num. 35:12, 24-25. All “the people” were said to have taken part in judging Jeremiah and
Susanna. See Chapter Three, Sections F and I.
23
The Chronicler, writing possibly as late as 350 BCE, like the PC and P, distinguishes
between priests (“the sons of Aaron”) and Levites.
24
See Wellhausen (cited in Chapter Five, note 32), p. 215: “One might as well try to hear
the grass growing as to derive from such a source as this a historical knowledge of the
conditions of ancient Israel.”
134 Justice and Compassion in Biblical Law

again we may see hints of recollection or acknowledgment that priests or


Levites had once officiated at locations that later became secular cities of
refuge. We may also see that at least in theory, if not also practice, increas-
ing numbers of such cities were required in the course of time, from the
days of the Deuternomic Reform and the RDC, through those of DH, to
those of the Chronicler in the early or mid-4th Century BCE.

B. “Diligent Inquiry”: Investigation, Hearings, Evidence,


and Cross Examination

Some of the trial scenes reviewed earlier in Chapter Three mention


certain instances of “courtroom” inquiry or fact-finding.25 However,
relatively few biblical laws, capital or otherwise, explicitly indicate what
sort of investigation or fact-finding procedures are to be followed prior
to or at trial. Yet some such determination is implicit in connection with
many if not all of the statutory capital offenses. Implicit procedures are
considered here first.

1. Implicit Procedures
Biblical legislation often indicates that inquiry as to relevant facts is
necessary. Such inquiry varies with the nature of the offense. For instance,
in the CC, the law applying the lex talionis when a pregnant woman suffers
miscarriage and injury resulting from contact with brawling males (Exod.
21:22-25), some procedure would have been needed in order to ascertain
whether all elements of the offense had been met: (a) that the woman
had been injured, and in what way (b) by brawling males, and (c) which
male was responsible for the injury. Or in a case where an ox gores some-
one to death, certain elements must be determined: (a) whether the ox
had “been accustomed to gore in the past,” (b) whether its owner had
“been warned,” and (c) whether its owner, notwithstanding such warning,
had failed to keep the animal penned in; or whether, for example, some-
one else had let the ox out of its pen (Exod. 21:28-32). Likewise some sort
of evidentiary hearing is implicit in the laws set out in Numbers 35:16-18,
where the critical issue is what type of weapon was used in commission of

25
See, e.g., Chapter Three, regarding the case of Tamar, her presentation of evidence
identifying Judah; witness testimony in several of the other cases; and representation
and cross-examination by counsel in the case of Susanna.
Due Process Protections 135

the homicide. In this kind of case, it is likely that physical evidence,


namely, the alleged weapon itself, would have been introduced for
examination. In later biblical codes, if not in earlier common law, convic-
tion on a capital offense required testimony of at least two witnesses.26
Thus some sort of hearing would have had to take place at which such wit-
nesses could submit their testimony to persons having judicial authority.
A number of laws and other traditions insist that persons responsible
for holding trials distinguish between the guilty and the innocent.27 The
provisions set out in Deuteronomy 25:1-2 clearly states that judges were
to determine which party is “in the right” and which one “in the wrong,”
and whether the one found guilty “deserves to be flogged.” In order to
so determine, it is implicit that some kind of fact-finding procedure
would have to be carried out. Exodus 23:7a (RSV) cautions against
executing “the innocent and righteous . . .”28 If in doubt, it seems that
innocence was to be presumed, leaving it to YHWH to deal with any who
were acquitted though guilty.29 Determining guilt or innocence necessar-
ily required careful fact-finding procedures. Several capital laws expressly
call for some kind of fact-finding inquiry.

2. Explicit Requirements
Certain capital laws mandate inquiry or investigation as to relevant facts.
Such inquiry is called for in two versions of the law establishing secular
cities of refuge for “the manslayer.” The version in Joshua chapter 20
provides that the manslayer would be given some sort of hearing where
he could “explain his case” to the elders of the city of refuge “at the
entrance to the gate of the city.” Assuming his explanation is found ade-
quate, the manslayer then would be granted protection from any aveng-
ing kinsman of the deceased “until he has stood before the congregation
for judgment” (RSV).30 The term ’edah, here translated as “congrega-
tion,” may also be rendered as “people” or “assembly”: in effect, the jury.
Presumably the manslayer would then have opportunity to repeat his
explanation or defense before this assembly which would also hear any

26
See Deut. 17:6; Num. 35:30. See Section C.1., of this chapter.
27
See Chapter Four, Chapter Five, Section B.1.f.ii, and Section A.3. of this chapter.
28
See Chapter Four, Section A. See also Jer. 22:3 and 17, where Jeremiah warns the king of
Judah and his officials not to “shed innocent blood” in their judicial capacities.
29
Exod. 23:7b: “. . . for I will not acquit the guilty.”
30
Josh. 20:6; see also Josh. 20:9.
136 Justice and Compassion in Biblical Law

charges brought against him. The version in Numbers 35 lists a series of


fact questions that function as indicia of intent, evidently for the purpose
of determining whether the accused had committed manslaughter or
murder.31 Likewise, the Numbers law, in language virtually identical to
that of Joshua 20, provides that the manslayer will be protected from any
avenger “until he stands before the ’edah for judgment” (Num. 35:12).
Additionally, Numbers 35:24 indicates that there would be an adversarial
proceeding at which “the ’edah” was to “judge between the manslayer
and the avenger of blood.” The implication is that any avenging kinsman
would also have opportunity to state his case. Though the context is not
entirely clear, it seems likely that the issue to be decided is whether the
homicide was intentional, performed without malicious intent, or only
accidental.32 Presumably, in order to make his case for capital punish-
ment, the avenger would also have to produce relevant evidence includ-
ing adverse testimony from at least two witnesses (Num. 35:30).
Possibly the earliest law incorporating specific provisions for an
evidentiary hearing is that concerning “tokens of virginity” (RSV) found
only in D (Deut. 22:13-21).33 This law details procedures to be followed
when a man charges his new bride with having had previous sexual expe-
rience. Both the man and the woman’s father are to offer evidence
before “the elders at the gate” (Deuteronomy 22:15),34 functioning as a
trial court, and her father then speaks in her defense. The main focus of
the proceeding is presentation of “the tokens of virginity” in evidence.
The garment in question (presumably bed clothing) is to be “spread
before the elders of the city” for their examination. Evidently the elders
had discretion to decide what would constitute sufficient “tokens” or
evidence. If “the tokens” were not found, the men (or people) of the city
were to stone the woman to death. Although the husband was to initiate
the charge by claiming not to have found his new bride’s “tokens of
virginity,” the woman’s father and mother are assigned the task of produ-
cing these “tokens” in or on “the garment” that was to be presented in

31
Num. 35:16-18, 20-23: the type of weapon used, the accused’s motive, whether the
accused had lain in wait, whether the fatal act was done suddenly or whether the act was
merely negligent.
32
See Chapter Five, Section B.1.b.i.
33
A few other biblical narratives also describe procedures where physical evidence was
produced or introduced as evidence. See Chapter Three, Sections A and I.
34
It is not clear whether the statements by the parties set out in Deuteronomy. 22:14 and
16-17 were to be recited as written (“boiler-plate” language) or whether they were meant
to illustrate the kinds of testimony appropriate in such cases.
Due Process Protections 137

evidence before the elders. These procedures suggest that the newly-
weds were expected to spend their first wedding night together in the
bride’s parents’ home.35 The bride’s parents thus would have opportu-
nity to discover or produce exculpatory evidence.36
The RDC provides for some sort of inquiry (if not also hearing) in
connection with several other alleged capital offenses. Most of these pro-
visions relate to themes associated with the Deuteronomic Reform, and
may have been new law rather than part of the original Deuteronomic
Code. Four such texts are summarized as follows.
Deuteronomy 13:12-17 calls for the destruction of any city whose inhab-
itants have been induced by “scoundrels” from among the Israelites to
go and serve other gods. First, however, the law stipulates: “[Y]ou shall
inquire and make search and ask diligently” in order to determine “if it
be true and certain that such an abominable thing has been done among
you” (Deut. 13:14 RSV). Exact investigative procedures are not indicated,
but the importance of diligent inquiry as to the facts is certainly empha-
sized. Presumably—as required by Deuteronomy 17:6—the testimony of
at least two witnesses would be required as part of such a proceeding.
Deuteronomy 17:2-7 makes it a capital offense for a man or woman in
any Israelite town to go, serve, and worship other gods, the sun, the
moon, “or any of the host of heaven.” Before condemning anyone to
death under this law on mere hearsay, however, diligent fact-finding
inquiry must likewise be undertaken.

If . . . it is told you and you hear of it; then you shall inquire diligently,
and [ascertain] if it is true and certain that such an abominable thing
has been done in Israel. (Deut. 17:4 RSV)

This law specifically requires corroborating testimony of at least two or


three witnesses if the alleged offender is to be put to death (Deut. 17:6
RSV). Moreover, it requires that “the hand of [these] witnesses shall be first
against [the accused] to put him to death” (Deut. 17:7). Thus the accusing

35
See Tobit chapters 7–8.
36
Absent modern methods for analyzing blood, blood-like stains could derive from many
sources. The familiar story of Joseph and his brothers (Gen. 37:29-33) might have
suggested to anxious parents the possibility of substituting animal blood for human.
Modern gynecologists might well question the presumption that intercourse with
a virgin inevitably produces such “tokens.” Requiring “tokens of virginity” the morning
after the wedding night also could have had a chilling effect on a woman’s willingness to
engage in premarital intercourse even with her affianced, in the event he might later
wish to “spurn” her for other reasons.
138 Justice and Compassion in Biblical Law

witnesses must throw the first stone—a sobering consideration if the


witnesses were persons of conscience and at all in doubt as to the facts.
Deuteronomy 17:8-9 assigns the task of deciding difficult cases to the
“Levitical priests” and “the judge who is in office” in Jerusalem.

If any case arises requiring decision between one kind of homicide


and another, one kind of legal right and another, or one kind of assault
and another, any case within your towns which is too difficult for you,
then you shall arise and go up to the place which YHWH your God will
choose, and coming to the Levitical priests, and to the judge who is in
office in those days, you shall consult them, and they shall declare to
you the decision. (RSV)

The text does not indicate what sort of testimony or other evidence
would be considered by the panel of priests and the judge. Presumably
they would attempt to determine material facts as well as apply appropri-
ate law. Possibly these “difficult” cases could involve adversarial proceed-
ings and/or cross examination, as intimated in Proverbs 18:17 (RSV):
“He who states his case first seems right, until the other comes and exam-
ines him.” Perhaps when conflicting evidence and testimony left the
court in doubt, difficult cases may have been decided by “lot” or the
sacred ephod.37
Deuteronomy 19:16-21, the law regarding malicious witnesses, pro-
vides specifically for a hearing and diligent inquiry as to the facts:

If a malicious witness rises against any man to accuse him of wrongdo-


ing, then both parties to the dispute shall appear before YHWH, before
the priests and the judges who are in office in those days; the judges
shall inquire diligently [whether] the witness is a false witness and has
accused his brother falsely . . . (Deut. 19:16-18 RSV)

Nothing is said here as to testimony by witnesses for the defense, but,


presumably, hearing their testimony, as well as considering any tangible
evidence, would be part of the judges’ diligent inquiry.38

37
See Prov. 18:18 (RSV): “The lot puts an end to disputes and decides between powerful
contenders.” Here we see an early counterpart to the purported value of “finality” if not
also that of “judicial economy.” Presumably, it was believed that, through divine provi-
dence, casting the lot (possibly Urim and Thummim) would reveal the truth and result in
a just outcome. See Prov. 16:33.
38
See Jer. 26:12-19 where Jeremiah himself, and then others speak in his defense.
See Chapter Three, Section F.
Due Process Protections 139

One law in H also provides for “an inquiry.” This is the law concerning
what is to be done if or when a man has sexual intercourse with a woman
who is a slave and betrothed to another man (Lev. 19:20-22). In such
circumstances, “an inquiry shall be held” (19:20), evidently in order to
ascertain relevant facts, such as whether the woman actually was a slave, or
whether she had been freed. In the latter event, evidently, she would be
considered responsible for her role in the affair, and, therefore, possibly
culpable under Deuteronomy 22:22-27, if that was still considered good
law when H was codified.
The most developed depiction of fact-finding at trial, of course, is
in the story of Susanna.39 There we see witness testimony, albeit false
(Sus. vv. 34-40), a defense attorney’s demand for examination and deter-
mination of “the facts” (Sus. v. 48), separation and sequestration of the
witnesses (Sus. vv. 51-52), and their subsequent cross-examination by
counsel as to the alleged offenders’ exact location at the time of the
alleged offense (Sus. vv. 52-58).

C. Witnesses

Although some capital laws as formulated suggest that circumstantial


evidence might suffice for conviction,40 most, at least by implication,
require the testimony of witnesses. The critical question in such cases
would be the veracity of the testimony. At least one of the “Ten Command-
ments” is concerned with such veracity: “You shall not bear false witness
against your neighbor” (Exod. 20:16; Deut. 5:20). This “commandment”
may pertain to defamation41 as well as testimony in court. The command-
ment against taking the name of YHWH in vain (Exod. 20:7; Deut. 5:11)
also probably referred to perjury or false testimony under oath in court.42
Earlier, the CC had warned against testifying falsely or maliciously,
whether suborned on behalf of conspiracy with another, or to please
some crowd or popular majority:

You shall not utter a false report. You shall not join hands with a wicked
man, to be a malicious witness. You shall not follow a multitude to do

39
See Chapter Three, Section I.
40
See, e.g., Deut. 22:25-27.
41
See also Lev. 19:16.
42
See Lev. 19:12 (RSV): “And you shall not swear by my name falsely, and so profane the
name of our God: I am YHWH.” See also Jer. 7:9 and Zech. 5:3, condemning those who
swear falsely.
140 Justice and Compassion in Biblical Law

evil; nor shall you bear witness in a suit, turning aside after a multitude,
so as to pervert justice. (Exod. 23:1-2 RSV)43

1. Minimum of Two Adverse Witnesses


Possibly early common law, and at any rate, later statutory law required
testimony of at least two witnesses in order to convict a person of a
capital crime. The earliest narrative instance is the account of Jezebel’s
arranging to have Naboth accused of a capital offense by two perjuring
witnesses.44 The earliest statutory provision requiring two (or three)
witnesses is found in the Revised Deuteronomic Code. Deuteronomy 17:6
required testimony of at least two witnesses to sustain capital punishment
in cases of alleged allotheism. As broadly phrased, this requirement may
have been meant to be applicable in all kinds of death penalty cases:

On the evidence of two witnesses or of three witnesses he that is to die


shall be put to death; a person shall not be put to death on the evidence
of [only] one witness. (Deut. 17:6 RSV)45

43
As to witnesses in biblical and talmudic tradition, see David Daube, Witnesses in Bible and
Talmud (Oxford Centre for Postgraduate Hebrew Studies, 1986), pp. 2–20. Daube
collected and discussed a large number of relevant texts from these and also from
extra-biblical sources. This study has been republished in Calum M. Carmichael, ed.,
Collected works of David Daube (Berkeley: Univ. of Calif. Press, 1992), vol. 1, pp. 401–23.
Subsequent citations in this chapter are to the earlier (1986) publication. See also Dale
S. Recinella, The Biblical Truth About America’s Death Penalty (Boston: Northeastern Univ.
Press, 2004), pp. 119–59, contrasting biblical laws with instances of current practice in
America.
44
1 Kgs 21:8-13. See Chapter Three, Section E. Schreiber, Jewish Law (cited in Chapter
Five, note 163), points out that the U.S. Constitution, Art. III, sect. 3, provides:
“No person shall be convicted of treason unless on the testimony of two witnesses to the
same overt act.”
45
According to Deuteronomy 19:15, also perhaps part of the RDC, the multiple witness
requirement was extended to any crime or offense, not only those punishable by
death:
A single witness shall not prevail against a man for any crime or for any wrong in
connection with any offense that he has committed; only on the evidence of two wit-
nesses, or of three witnesses, shall a charge be sustained. (RSV)
In the New Testament, Paul applied the multiple witness requirement to alleged wrong-
doing by church members: “Any charge must be sustained by the evidence of two or
three witnesses” (2 Cor. 13:1). Reference here, evidently, is to noncapital offenses.
See also Mt. 18:16 (two or three witnesses to be present for attempted dispute resolu-
tion). In reversing a lower court’s decision in a treason case, the U.S. Supreme Court
quoted both Mt. 18:16 and Deut. 19:15. Cramer v. United States, 325 U.S. 24, nn. 36
& 37 (1945).
Due Process Protections 141

A century or two later, Numbers 35:30, part of the Priestly Code, evidently
required two or more witnesses not only in trials for murder, but for
conviction on any capital charge:

If anyone kills a person, the murderer shall be put to death on the


evidence of witnesses; but no person shall be put to death on the testi-
mony of [ just] one witness. (RSV)

The requirement of two adverse witnesses may have been implicit in the
D law regulating ungovernable sons: there both parents were required to
bring charges and testify (Deut. 21:18-20).46 This sort of requirement was
still operative as late as the story of Susanna, where two false witnesses
testify against her. Here, as a further precaution in the interest of truth-
ful fact-finding, the witnesses are sequestered and subjected to cross-
examination separately (Sus. vv. 51-59).47
Requiring more than one witness no doubt was meant to assure factu-
ally accurate as well as honest testimony. Such requirement, of course,
could not guarantee the truth, since witnesses might, nevertheless,
testify falsely and maliciously, as in the Naboth and Susanna stories.
However, testimony by two or more witnesses could reasonably be
considered more reliable than that of only one witness.48 The basic
underlying concern here, obviously, is to try to prevent the execution of
innocent persons.

46
In this instance, clearly, a woman’s testimony was to be credited. Compare Falk, Law and
Religion 80 (quoted in Chapter Five, note 68), referring only to the father’s testimony.
47
Later rabbinic law required witnesses to recall detailed particulars in identifying
offenders, and barred admission of confessions by the accused. See Spitz (cited in
Chapter Five, note 29), at p. 346. See generally Daube, Witnesses (cited above in note 43),
pp. 16–17. In particular, see Irene Merker Rosenberg and Yale L. Rosenberg,
“In the Beginning: The Talmudic Rule against Self-Incrimination,” 63 New York L. Rev.
955, 980, 1028 (1988).
48
See West, “Scripture” (cited in Chapter Five, note 4), p. 11, suggesting that the biblical
two-witness rule “required a high degree of certainty, more than, perhaps, the [beyond]
reasonable doubt standard” of contemporary American criminal jurisprudence. For
contemporary discussions of concerns about eyewitness testimony, see, e.g., Nicholas A.
Kahn-Fogel, “Beyond Manson and Lukelongo: A critique of American and Zambian Eye-
witness Law with Recommendations for Reform in the Developing World,” 20 Fla.
J. of Internat’l Law 278–327 (2008); and Monika Jain, Comment, “Mitigating the
Dangers of Capital Convictions Based on Eyewitness Testimony Through Treason’s Two-
Witness Rule,” 91 J. Crim. L. & Criminology 761 (2001).
142 Justice and Compassion in Biblical Law

2. Promoting True Testimony


Truthful testimony was mandated by the Ninth of the Ten Command-
ments: “You shall not bear false witness against your neighbor.”49 It may
also be implicit in the Third Commandment: “You shall not take the
name of YHWH your God in vain” (RSV).50 Neither of these command-
ments, however, provided sanctions.
The Revised Deuteronomic Code adds a potent legal provision aimed
at deterring malicious false testimony. If a person is found to have so
testified:

[T]hen you shall do to him as he had meant to do to his brother; so


shall you purge the evil from the midst of you. And the rest shall hear,
and fear, and shall never again commit any such evil among you. Your
eye shall not pity; it shall be life for life, eye for eye, tooth for tooth,
hand for hand, foot for foot. (Deut. 19:19-21 RSV)

The denouement of the story of Susanna instances an application of this


law: “And they did to [the two elders] as they had wickedly planned to do
to their neighbor; acting in accordance with the law of Moses, they put
them to death” (RSV).51 The Book of Proverbs offers a series of sayings
commending true, and condemning false witnesses, appealing, in effect
to the conscience or moral judgment of readers. For example:

He who speaks the truth gives honest evidence,


but a false witness utters deceit. (Prov. 12:17 RSV)

A truthful witness saves lives,


but one who utters lies is a betrayer. (Prov. 14:25 RSV)52

Moreover, Proverbs also invokes the further sanction of self-interest


against those who would offer false testimony:

49
Exod. 20:16; Deut. 5:20. This commandment may also have applied more broadly to
slander or defamation.
50
Exod. 20:7; Deut. 5:11, which may have referred to testimony given under oath. See also
Exod. 23:7 (RSV): “Keep away from a false charge, and do not slay the innocent and
righteous . . .”
51
Susanna v. 62. Here Deuteronomy 19:19-21 is construed to apply gender-inclusively
against men who maliciously accuse a woman of wrong-doing.
52
See also Prov. 14:5; 19:28; 25:18. On false witnessing or testimony in biblical tradition,
see generally, Phillips, Criminal Law (cited in Chapter Five, note 36), pp. 142–48.
Due Process Protections 143

A false witness will not go unpunished,


and he who utters lies will not escape. (Prov. 19:5 RSV)

Indeed, testifying falsely could prove fatal: “A false witness will perish”
(Prov. 21:28 RSV).53 These sayings clearly imply that even if false wit-
nesses might get away with perjury in the courtroom, they would none-
theless come to grief at the hand of divine providence or justice.54
Another new law found in the RDC requires witnesses to throw the first
stones when the persons against whom they testified are condemned to
die: “The hand of the witness shall be first against him to put him to
death, and afterward the hand of all the people” (Deut. 17:7 RSV). This
provision may have been intended to apply only in connection with the
law condemning Israelites who practiced allotheism for which the penalty
was death by stoning.55 Or it may have been intended to apply in all cases
where the penalty was capital punishment.56 This law, too, seems to have
been intended to encourage true testimony. If one was going to testify
that a person had committed a capital offense, one would, presumably,
wish to be certain that what one said was true since one might later have
to play a leading role in the actual execution.57

3. The Duty to Testify


Another type of law has to do with encouraging reluctant witnesses to
come forward:

If any one sins in that he hears a public adjuration to testify and though
he is a witness, whether he has seen or come to know the matter, yet
does not speak, he shall bear his iniquity. (Lev. 5:1 RSV)

53
See also Prov. 19:9 (RSV): “A false witness will not go unpunished, and he who utters lies
will perish.”
54
This meaning probably is expressed also in the Third Commandment: “. . . for YHWH will
not hold him guiltless who takes his name in vain” (RSV) (Exod. 20:7 and Deut. 5:11, refer-
ring to the consequences of swearing falsely under oath). Possibly that prospect remains
implicit in the continuing Western court room practice of “swearing in” witnesses. Modern
witnesses who testify falsely, whether in criminal or civil trials, may be subject to heavy sanc-
tions. See Donald A. Blackwell, “The Big Lie—Contrary to What You May Have Heard on
the Evening News, False and Misleading Testimony by a Civil Litigant Can and Does Have
Serious Consequences,” 73 Florida Bar Journal, no. 7 (July/August 1999), pp. 20–26.
55
See also Deut. 13:6-11, which requires witnesses to throw the first stones when their dear-
est family members or friends have committed allotheism.
56
The preceding verse, Deut. 17:6, appears to apply in this broader sense.
57
Cohn, Human Rights (cited in Chapter Five, note 29), p. 39: “[T]his provision [was]
probably intended to impress potential witnesses with the gravity of the responsibility
they are taking upon themselves.”
144 Justice and Compassion in Biblical Law

This provision, like Numbers 35:30, probably was part of the Priestly
Code. No explicit penalty is attached to this law; however, the idea seems
to be that those who failed to testify when they should have done so
would know who they were. To clear their iniquity—which otherwise
could result in indeterminate deleterious consequences—such persons
were to confess their sins—probably to a priest—and bring their guilt or
sin offerings to YHWH.58

D. The Punishment Phase: Sentencing Guidelines

Punishments, particularly in earlier portions of biblical tradition, were


not always narrowly tailored. Not only the offender, but also others,
including the offender’s whole family, might be put to death. And pun-
ishments may have been excessive or inordinate compared to the offense.
One type of biblical law evidently was intended to limit punishments to
guilty parties. Another was meant to limit punishments according to the
nature of the offense, that is, to let the punishment more nearly fit the
crime.

1. Fathers, Sons, and Families; or Only the Offender?


In early biblical times, it was not uncommon for both the perpetrator of
an offense and some or all of his family to be punished, whether officially
or by avenging kinsmen. In some traditions, God or YHWH himself was
expected to wreak such vengeance. Both later biblical law and prophetic
pronouncements on behalf of YHWH limited punishment to the offender
alone.
The principle or practice of extended (if not completely unlimited)
vengeance is indicated in Lamech’s boast to his wives (Gen. 4:23-24).
YHWH had “marked” Cain “lest any who came upon him should kill him”
(RSV). The mark was to signify that if any one killed Cain, “vengeance”
would “be taken upon him sevenfold” (Gen. 4:15). If Lamech, a descen-
dent of Cain, can be believed, someone nevertheless had killed Cain,
and “sevenfold” vengeance had been inflicted on his killer—meaning,
probably, that seven, or at least several, members of the killer’s family
had been killed in retaliation (Gen. 4:24). Later, when a male Israelite

58
Lev. 5:5-6, 7-13.
Due Process Protections 145

stole property that had been “devoted” to YHWH,59 not only he, but also
his sons, daughters, and cattle were put to death ( Josh. 7:1-25).60
Early tradition in the Ritual Decalogue endorsed the idea that YHWH,
himself, would punish both the wicked and their descendants. YHWH
was “merciful and gracious, slow to anger, and abounding in steadfast
love and faithfulness,” but would visit “the iniquity of the parents upon
the children and the children’s children, to the third and the fourth
generation” (Exod. 34:6-7). This principle also appears in identical
language in both versions of the Decalogue, specifically in the case of
those who also worshiped other gods before or besides YHWH:

You shall not make for yourself a graven image, or any likeness of
anything that is in heaven above, or that is in the earth beneath, or that
is in the water under the earth; you shall not bow down to them or
serve them; for I, YHWH your God, am a jealous God, visiting the iniq-
uity of the fathers upon the children to the third and fourth genera-
tion of those who hate me . . . (Exod. 20:4-5; Deut. 5:8-9 RSV)

The Deuteronomic Code, however, established a new guideline for


punishment of capital offenders:

The fathers shall not be put to death for the children, nor shall the
children be put to death for the fathers; every man shall be put to
death for his own sin. (Deut. 24:16 RSV)

So far as official proceedings were concerned, subsequent to promulgation


of the Deuteronomic Code, only the offender might be executed. An
instance of this law’s application is reported in an account of events in the
tumultuous days of the divided kingdoms:

And as soon as the royal power was firmly in his hand, [Amaziah] killed
his servants who had slain the king his father. But he did not put to
death the children of the murderers; according to what is written in
the book of the law of Moses, where YHWH commanded, “The fathers
shall not be put to death for the children, or the children be put to

59
The property evidently consisted of items plundered from Jericho that had been set
apart for use in the future as religious implements or fixtures.
60
See also 2 Sam. 12:13-14, where the prophet, Nathan, declared that David’s son would
die in punishment for David’s having murdered Uriah and marrying Uriah’s widow.
146 Justice and Compassion in Biblical Law

death for the fathers; but every man shall die for his own sin.” (2 Kgs
14:5-6 RSV)

This text is repeated, nearly verbatim, in 2 Chronicles 25:3-4.


Moreover, according to the prophets Jeremiah and Ezekiel, YHWH
changed his own way of dealing with offenders. Now, or at any rate, once
YHWH restored the fortunes of his people after the exile, “every one
shall die for his own sin” (RSV).61 This new theology (or theodicy) corre-
lated with and undergirded the sentencing guideline set out in Deuter-
onomy 24:16 and the practice remembered in 2 Kings 14:5-6.

2. The lex talionis


A number of biblical laws, particularly in the CC, required that a wrong-
doer provide restitution, compensation or damages when his actions
(whether intentional or negligent) caused another person’s property
loss.62 But what if one person permanently injures or kills another? Bibli-
cal law generally does not require (or allow) monetary compensation for
such injuries or death. Instead, under certain circumstances, pursuant to
the so-called lex talionis, if a permanent injury resulted, the same injury
was to be inflicted on the person responsible for it.63 Similar provisions
are found elsewhere in ANE law.64 Biblical law codes include three dis-
tinct versions of the lex talionis: Exodus 21:23-25; Leviticus 24:19-20; and
Deuteronomy 19:16-21. One modern scholar proposes that all three bib-
lical versions of the lex were inserted by a late “Pentateuchal editor,” and
urges that this editor intended to “stress the principle of compensation”

61
Jer. 31:29-30. See also Ezek. 18:1-20, 30. An early narrative tradition also implicitly repu-
diated the principle of collective guilt or guilt by association: the story of Abraham’s
reminding YHWH that it was not right to punish the guilty with the innocent. See
Chapter Four, note 5.
62
See Exod. 21:33-36; 22:1, 4, 5-15. See also Num. 5:5-10, and Lev. 6:1-5; 24:18, 21a.
See Chapter One, Section B.
63
The Latin noun, talio, means “retaliation.” The genitive singular form is talionis. Thus
lex talionis means, literally “law of retaliation” or “law of retribution in kind.” The expres-
sion is a term of art used by interpreters of biblical and other laws. The term is not found
in the biblical text. As to the biblical lex talionis, see generally, Daube, Studies (cited in
Chapter Five, note 32), pp. 102–53; Westbrook, Studies (cited in Chapter Five, note 31),
pp. 39–88; Rosenberg & Rosenberg, “Lone Star Musings” (cited in Chapter Five, note
28), pp. 505–41; and Barmash, Homicide (cited in Chapter Four, note 6), pp. 154–77
(examining biblical and ancient Near Eastern law, and arguing that in biblical law, the lex
talionis is understood as a principle expressing “equivalence” (id., p. 175).
64
See, e.g. the Code of Hammurabi, CH 196, 197 and 200. See generally Westbrook,
Studies (cited in Chapter Five, note 31), pp. 47–49.
Due Process Protections 147

rather than “a retaliatory theory of punishment.”65 Modern jurispruden-


tial sensibilities might prefer that such was the intent, but indications to
that effect are largely absent from the biblical texts in question.66
The earliest version of the lex talionis is found in the CC and there, in
its terms, refers only to the narrowly defined circumstance where a mar-
ried, pregnant woman is injured by brawling males, has a miscarriage,
and sustains some permanent, disfiguring or debilitating injury, or dies
as a result:

If any harm follows, then you shall give life for life, eye for eye, tooth
for tooth, hand for hand, foot for foot, burn for burn, wound for
wound, stripe for stripe. (Exod. 21:23-25)67

Conceivably a pregnant woman could suffer a burn injury, for instance,


if pushed against an oven or into a fire, or even “stripes,” if one of the

65
Phillips, Criminal Law (cited in Chapter Five, note 36), pp. 96–99. So also Edward McG.
Gaffney, Jr., “Biblical Law and the First Year Curriculum of American Legal Education,”
4 J. of L. & Religion 63, 85–86 (1986); Bernard S. Jackson, “Models in Legal History: The
Case of Biblical Law,” 18 J. of L. & Religion 1, 6–55 (2002–03); and Rosenberg &
Rosenberg, “Lone Star Musings” (cited in Chapter Five, note 28), pp. 525–28. Later
rabbinic law did construe the lex talionis to provide for compensatory damages rather
than retaliation in kind, though retaining the death penalty for certain types of cases, at
least in theory. See Spitz (cited in Chapter Five, note 29), p. 345. See also Louis E.
Newman, “Covenant and Contract: A Framework for the Analysis of Jewish Ethics,”
9 J. of L. & Religion 89, 106 (1991): “The rabbis effectively eliminated capital punishment
(though, of course, the Bible mandates it) by introducing extraordinarily stringent con-
ditions which had to be met before a person could be convicted of a capital offense.”
66
The only laws expressly providing for ransom or monetary compensation for homicide
are found in Exodus 21:28-32 (when an ox gores a person). See Chapter Five, Section
B.1.b.ii.(b). Exodus 21:22 provides for a fine (arguably compensation payable to the
husband) when his wife has a miscarriage resulting from injury inflicted by brawling
males, but there is no provision for ransom or monetary compensation in the event of
her death. See Chapter Five, Section B.1.b.ii(a). Second Samuel 21:1-9 can be read to
imply that ransom may have been an alternative to capital punishment when a former
King had wrongfully ordered the execution or murder of persons contrary to treaty.
See Westbrook, Studies (cited in Chapter Five, note 31), p. 51. Neither Exod. 21:28-32
nor 2 Sam. 21:1-9 refers to the lex talionis. Westbrook possibly overgeneralizes when, on
the basis of the Samuel text, he concludes that in “the biblical system,” “premeditated
murder gives the right to revenge by the victim’s relatives, with the choice of accepting
ransom.” Id., p. 77. Westbrook urges that provisions for ransom in other ANE laws are
implicit in various biblical texts that specifically call for the death penalty, on the theory
that absent explicit statement to the contrary, it would have been assumed that ransom
was available. See id., pp. 78–83.
67
See Chapter Five, Section B.1.b.ii.(a). From the context in Exod. 21:22, it appears that
“harm” here refers to an injury to the woman, rather than to the fetus. Perhaps it was
understood that a pregnant woman would be especially vulnerable to harm under these
circumstances. Compare Dale Patrick, Old Testament Law (John Knox Press, 1985), p. 76:
“Although this commandment, known as the lex talionis, is attached to this one case, it
really applies to all cases of death and injury.” There is no textual basis for so assuming.
148 Justice and Compassion in Biblical Law

brawling males was wielding a whip or stick. Alternatively, the list of


possible harms and punishments may have been added to the text to
reconcile it with later versions of the lex talionis. In any case, if the woman
dies, the man who caused the fatal injury is to be put to death.
Unlike many of the other laws found in Deuteronomy 12–19, the law
providing punishment for malicious, false witnesses (Deut. 19:16-21) is not
directly associated with themes or institutional changes characteristic of
the Deuteronomic Reform. This law may, therefore, date back to an earlier
if not the original version of D. In any case, we see here another limited
context in which the lex talionis was to apply. If it was determined (pursuant
to diligent inquiry) that a person had maliciously and falsely accused some-
one of a crime, the accuser was to suffer the same penalty that would have
been imposed on the accused had the latter been found guilty:

[T]hen you shall do to him as he had meant to do to his brother. . .


Your eye shall not pity; it shall be life for life, eye for eye, tooth for
tooth, hand for hand, foot for foot. (Deut. 19:19-21 RSV)68

It has been said that Deuteronomy 19:21 is the “most popular” biblical text
quoted by prosecutors to jurors in modern capital murder trials.69 If so,
such prosecutors (or others arguing from this text) should also point out
that as read in context, it refers explicitly and solely to the punishment of
malicious, false witnesses.70
The lex talionis is applied in another limited context, in Leviticus 24:
19-20, the only other biblical text where it is found. Here it relates speci-
fically to those who commit mayhem,71 that is, cause another person
some permanent, disfiguring injury:

68
Reference to eye, tooth, hand, and foot, among the provisions for punishing malicious,
false witnesses, might suggest that under biblical common law, punishment for some
offenses may have included dismemberment. Interpreters sometimes cite Deut. 25:11-12
as an additional instance of the lex talionis. That text requires cutting off a wife’s hand if
she assists her husband while he is fighting, by seizing his opponent’s “private parts.”
The text, however, does not call for retaliation in kind, since the antagonists’s hand
would not have been injured. See below, note 81. There are no reported instances of this
law’s application, and it is not repeated in the later law codes.
69
Mark Costanzo, Just Revenge: Costs and Consequences of the Death Penalty (New York: St.
Martin’s Press, 1997), p. 130.
70
See Recinella, The Biblical Truth (cited above in note 43), pp. 185–209, contrasting the
standard set out in this text with instances of prosecutorial misconduct in various U.S.
jurisdictions.
71
As to mayhem, see Chapter Five, note 89 and accompanying text.
Due Process Protections 149

When a man causes a disfigurement in his neighbor, as he has done it


shall be done to him, fracture for fracture, eye for eye, tooth for tooth;
as he has disfigured a man, he shall be disfigured. (RSV)72

This text adds, “fracture for fracture,” but unlike Exodus 21:23-25, makes
no mention of “hand for hand” or “foot for foot.” Here, as in Exodus
21:22-25, it seems to make no difference whether the harm or here,
disfigurement, resulted from intentional, reckless, or merely negligent
conduct by the offending party. As stated, this version of the lex talionis
does not call for capital punishment, “life for life.” Homicide, of course,
goes beyond mayhem or disfigurement. However, Leviticus 24:17 and
21b add, “He who kills a man shall be put to death” (RSV).73 It is not
clear whether these verses were intended to be part of the lex talionis, or
to constitute a separate requirement.74 As in the case of Genesis 9:5-6,
Leviticus 24:17 and 21b make no special provision for negligent or
accidental homicide.
How and when the provisions distinguishing murderers from man-
slaughterers and establishing certain due process protections for the
latter would have interfaced with the life-for-life element of the lex talio-
nis is unclear. Perhaps the earlier version of that lex at Exodus 21:22-25
would have been subsumed into or superseded by the more general
mayhem law in Leviticus 24, part of the Holiness Code. The Holiness
Code makes no provision for cities of refuge where a negligent man-
slayer might find sanctuary pending further proceedings.75 It may be

72
An implicit exception to this version of the lex talionis appears in Exodus 21:26-27,
where it does not apply in the case of permanently disfiguring injuries to slaves. On the
other hand, slaves are not here treated as mere “property.” Instead, slaves who are disfig-
ured are to be compensated by being given their freedom: “for the eye’s” or “for the
tooth’s sake.”
73
See Michael Davis, Justice in the Shadow of Death: Rethinking Capital and Lesser Punishments
(New York/London: Rowman & Littlefield, 1996), p. 234: “The general principle of the
lex talionis (as traditionally understood) is equivalence between harm done and punish-
ment imposed. The punishment is not for an act as such, for what was intended or
risked, but for what was done (‘an eye for an eye,’ as the Bible says). So, for example, to
kill someone, even ‘by accident,’ would justify the same penalty . . . as would killing
deliberately.” But see Chapter Five, Section B.1.b.ii and iii., discussing texts where pun-
ishment clearly does vary according to the perpetrator’s intent and other factors.
74
Both verses are separated from the language of the lex talionis (Lev. 24:19-20) by the
quite different tort law requirement, “He who kills a beast should make it good”
(Lev. 24:18, 21a). The entire block of laws found in Lev. 24:17-21 (if not also v. 22)
appears to have been inserted somewhat carelessly into the story about the man of
mixed ancestry who blasphemed the Name (Lev. 24:10-16, 23).
75
See Section A.1., of this chapter. Special cities of refuge would have been unnecessary if
H is correctly dated prior to the Deuteronomic Reform, since prior to that Reform, local
150 Justice and Compassion in Biblical Law

that the detailed procedures set out still later in Deuteronomy 19 and
Numbers 35 were intended to qualify the overbroad language of
Leviticus 24:17 and 21b.
As has been seen, the laws set out in Deuteronomy 19 and Numbers 35
distinguish between manslaughter and other degrees of homicide, pro-
vide cities of refuge where perpetrators may be safe while awaiting trial,
require two or more witnesses, call for both parties to appear at trial, and
for judges to “inquire diligently,” and apply the lex talionis to any who
offer false, malicious testimony. Read in this context, the lex talionis was
not a general rule of life for life in any and all circumstances. Instead, in
its terms, it was to apply only in cases where brawling males injured or
caused the death of a married, pregnant woman; where someone gave
false and malicious testimony in court; or in a case where someone had
committed mayhem. Even if Leviticus 24:17 and 21b are read as exten-
sions of, or additions to the lex talionis as stated in Leviticus 24:19 and 20,
the requirement “He who kills a man shall be put to death,” is substan-
tially narrowed and qualified by due process provisions set out in the
later codes RDC (as in Deuteronomy chapter 19) and the Priestly Code
(as in Numbers chapter 35).76
In any event, the lex talionis set limits to retribution: the perpetrator’s
punishment was to equal but not exceed the injury inflicted on the vic-
tim.77 It is not clear whether the victim or her representative was expected
to execute such punishment himself, or whether such punishment would
be carried out by a judge or other representative of the community.78

religious shrines would have been available as places of refuge.


76
See also earlier and other due process protections for the accused described above in
Sections A, B, and C of this chapter.
77
See Mendenhall, Law and Covenant (cited in Chapter Five, note 39), pp. 16–17. See also
Howard Zehr, “Restoring Justice,” in Stassen, ed., Capital Punishment (cited in Chapter
Five, note 3), p. 29: “‘An eye for an eye’ is not what it seems. In a society unused to the
rule of law, it was intended as a limit on, rather than a command to do, violence. It estab-
lished a rule of proportion which laid the basis for retribution.” And see Hans Jochen
Boecker, Law and the Administration of Justice in the Old Testament and the Ancient East
(Minneapolis: Augsburg, 1980), pp. 174–75. Compare, e.g., the pattern of unlimited
retribution illustrated in the ancient story of seven-fold revenge in the case of Cain
(Gen. 4:15, 24); the legendary feud between the Hatfields and McCoys, or ongoing retal-
iatory killings by modern Israelis and Palestinians.
78
None of the biblical lex talionis texts identifies “the government” or the Israelite or
Jewish state—let alone any modern state—as the agency divinely authorized to punish
malefactors. Compare Millar Burrows, “Old Testament Ethics and the Ethics of Jesus,” in
James L. Crenshaw and John T. Wilson, eds., Essays in Old Testament Ethics, J. Philip Hyatt,
In Memoriam (New York: KTAV, 1974), p. 235: “Against a primitive background of blood
revenge and unlimited retaliation (Gen. 4:5, 24), Hebrew law had sought to regulate the
Due Process Protections 151

Conceivably, as in Exodus 21:30, the victim could choose to receive


compensation rather than insist on the offender’s corporal or capital
punishment.79 But no biblical texts relating to the lex contain any indica-
tion of that alternative.
Biblical tradition reports only one case when the lex talionis was carried
out in the form of capital punishment.80 And there are no reported
instances of mutilation as punishment for loss of or injury to a victim’s
bodily member.81 It may be, of course, that there were unreported
instances. In practice, the lex talionis provisions may have been mitigated.
Two texts suggest that victims’ relatives might exact ransom (damages or
compensation in tort) rather than require the offender’s execution:
Exodus 21:30 and Numbers 35:31-32. The Exodus law applies only when
the offender’s ox has a known propensity for goring, and, after the owner
has received due warning and failed to pen the animal in. The Numbers
text, which bars ransom for the life of a murderer, could be read to imply
that ransom or compensation might be acceptable for other categories
of capital offenders. However, the late Ze’ev Falk probably overstated the
case for such compensation in stating: “[I]n practice the principle [of the
lex talionis] was not realized as such, but was commuted by the payment
of ransom.”82

age-old customs, . . . restricting the execution of the lex talionis to the established civil
authorities (Exod. 21:23ff.; Lev. 24:19f.; Deut. 19:15-21).” It is not clear, however, that
the “you” referred to in these texts stands for either local or national “established
authorities.”
79
Thus Mendenhall, Law and Covenant (cited in Chapter Five, note 39), p. 17. See also
above, note 66 and Chapter Five, Section B.1.b.ii(b).
80
Susanna vv. 61-62, referring to Deut. 19:16-21 (malicious false witnesses). See Chapter
Three, Section I. There are a few other narrative instances when murderers were
executed, e.g., 2 Sam. 4:5-12; and 1 Kgs 2:31-35, but there is no reference to the
lex talionis in those accounts.
81
Deuteronomy 25:11-12 requires that if a woman rescues her husband from a brawl by
seizing his opponent’s “private parts,” her hand is to be cut off. This is not, obviously, a
case of a “hand for a hand,” and is the only biblical law, other than what may be implicit in
the lex talionis, calling for mutilation. Calum Carmichael, on the other hand, insists that
both Exod. 21:22-25 and Deut. 19:16-21 call for capital punishment “to be followed by
the systematic mutilation of the offender’s corpse.” Calum M. Carmichael, The Spirit of
Biblical Law (Athens, GA: 1996), p. 107. But biblical evidence supporting this conclusion
is lacking. Judges 1:6-7 refers to treatment of prisoners of war. The execution and subse-
quent mutilation of assassins described in 2 Sam. 4:12, while possibly illustrating
Carmichael’s theory, is not a case of “hand for hand.”
82
Falk, Religious Law (cited in Chapter Four, note 6), p. 48. Westbrook, Studies (cited in
Chapter Five, note 31), pp. 122–23, discusses Middle Assyrian laws that allow the
deceased’s avenger either to kill the offender or to accept ransom—and also the offend-
er’s inheritance.
152 Justice and Compassion in Biblical Law

3. Punishment Proportional to the Offense


The lex talionis clearly was intended to limit the extent to which offenders
might be punished—in effect, to establish the principle of equivalency.
The punishment was not to be excessive; instead, it should “fit the crime.”
This principle is illuminated in a law that may have applied to certain
types of tortuous, as well as to criminal wrong-doing:83

Suppose two persons have a dispute and enter into litigation, and the
judges decide between them, declaring one to be in the right and the
other to be in the wrong. If the one in the wrong deserves to be flogged,
the judge shall make that person lie down and be beaten in his pres-
ence with the number of lashes proportionate to the offense. (Deuter-
onomy 25:1-2)

This law explicitly requires that the number of lashes must be “propor-
tionate to the offense.” There is, moreover, a further limitation, this time
reflecting a measure of compassionate concern for the well-being of the
offender:

Forty lashes may be given but not more; if more lashes than these are
given, your neighbor will be degraded in your sight. (Deuteronomy
25:3)

More than 40 lashes were considered excessive. Implicitly, they would


have caused greater pain and injury. Explicitly, any additional lashes
would have been degrading. Even though subject to such punishment,
when deemed appropriate to the offense, the guilty offender was never-
theless still regarded as “your neighbor.”

83
Compare the situation described in Exod. 21:22-25, which calls for civil damages (fine)
and, in certain circumstances, criminal penalties as well. See above, note 67 and accom-
panying text.
Chapter 7

Criminal Law in the Bible and


Contemporary Application

Then Abraham came near and said, “Wilt thou indeed destroy the righteous
with the wicked? Suppose there are fifty righteous within the city . . .”
Genesis 18:23 (RSV)

But as for me, here I am in your hands. Do with me as seems good and right to
you. Only know for certain that if you put me to death, you will be bringing
innocent blood upon yourselves, and upon this city and its inhabitants, for in
truth YHWH sent me to you to speak all these words in your ears.
Jeremiah 26:14-15

Although the point may be obvious, it should not be overlooked that


according to biblical tradition, biblical law was given to, and intended
for, the guidance or direction of Israel, Judah, and the Jewish people.
It was not regarded as the law of the land for other nations, peoples, or
jurisdictions. There is, therefore, no biblical warrant for supposing—or
proposing—that biblical laws pertaining to the death penalty—or to any
other matters of importance in biblical times—were meant to apply to
criminal justice proceedings in the United States of America. Neverthe-
less, it is suggested here that much of biblical tradition highlights certain
fundamental concerns which may be extremely important and relevant
in the present era.
First, however, it should be pointed out that, when read in their con-
texts, several biblical laws (and other biblical texts) do not clearly stand
for the propositions for which they are often cited, whether by modern
proponents or by opponents of capital punishment.
154 Justice and Compassion in Biblical Law

A. Modern Interpretation of Biblical Texts

For one thing, most texts purportedly opposing the death penalty do not
so state clearly or categorically. For instance, the account of YHWH’s
marking Cain (Gen. 4:15) does not forbid capital punishment.1 It is
unlikely that the Sixth Commandment, “Thou shall not kill,” was
intended to prohibit use of the death penalty.2 Nor is it apparent that the
lex talionis was understood to allow capital offenders to pay damages or
ransom in lieu of being put to death.3 Nor is there any evidence that
elders might undertake to reform or rehabilitate ungovernable sons
before, or instead of, inflicting the death penalty.4
Conversely, many biblical texts commonly said to justify applying the
death penalty in modern times do not say what those citing them
contend. For instance, Genesis 9:5-6 (probably part of P narrative tradi-
tion) says that God told Noah, “Whoever sheds the blood of man, by man
shall his blood be shed; for God made man in his own image” (RSV). Yet
the broad (if not overbroad) scope of this instruction is significantly
qualified by specific Mosaic laws that distinguish various types of homi-
cide depending on circumstances and the perpetrators’ intent.5 James
Megivern points out that latter-day death penalty advocates generally
read Genesis 9:5-6 through the lenses of these qualifying laws, as if this
Genesis text referred only to first degree murder.6 Read literally, how-
ever, the text is not so narrowly tailored or focused. Many other texts
cited by modern death penalty proponents do not, in fact, say what such
proponents claim, either.7
The most notable example is the often-cited lex talionis or “law of retali-
ation.” This law sometimes is said to authorize use of the death penalty

1
See Stassen, “Biblical Teaching” (quoted in Chapter Five, note 9). The same commenta-
tor also may exaggerate when proposing that capital punishment was gradually
abandoned in biblical times, quoted in Chapter Five, note 22.
2
See Chapter Five, notes 5 and 6 and accompanying text.
3
See Phillips, Gaffney, Westbrook, Rosenberg and Rosenberg, and Falk, cited in Chapter
Six, note 65, 66, 82 and accompanying texts.
4
See Levine, “Capital Punishment,” cited in Chapter Five, note 68.
5
See Chapter Five, Sections B.1.b.ii and iii; B.1.e.i.; and B.1.f.ii. But see Lev. 24:17, 21b,
discussed in Chapter Five, Section B.1.d.ii(a) and Chapter Six, Section D.2. These
Leviticus texts, like Gen. 9:5-6, do not distinguish among different categories of
homicide.
6
See Megivern, Death Penalty, cited in Chapter Five, note 129. The “image of God” ratio-
nale is somewhat problematic, since it could be applied to the life of the accused offender.
See Schreiber, Jewish Law, cited in Chapter Five, note 163. To be sure, Gen. 9:5-6, as read,
does not suggest such application.
7
See, e.g., Vellenga, “Capital Punishment” (cited in Chapter Five, note 22).
Criminal Law in the Bible and Contemporary Application 155

in all homicide cases—at least in all cases of first degree murder.8 As has
been seen, however, the biblical lex talionis was not set out as a broad or
general rule, but rather as providing sentencing guidelines in three quite
specific circumstances: (1) when a married, pregnant woman is injured
by brawling men (Exod. 21:22-25);9 (2) in mayhem cases (Lev. 24:
19-20);10 and (3) as punishment for malicious, false witnesses (Deut.
19:16-21).11 It has been said that prosecutors often quote the Deutero-
nomic version to jurors in capital murder trials.12 So doing would consti-
tute prosecutorial misconduct unless such prosecutors also point out
that this text refers specifically and solely to the punishment of malicious
false witnesses.13 Likewise, those who quote the Exodus version as author-
ity for capital punishment, if truthful, should add that it applies only to
fatal injuries inflicted on pregnant married women by brawling males.14
It appears to be the case that neither death penalty proponents nor
opponents read or propose to apply all biblical death penalty texts literally.
For example, death penalty opponents are not known to advocate allow-
ing estates of negligent homicide victims to demand and receive unlim-
ited compensatory damages when (or only when) the victim was gored
by an ox.15 Nor do such opponents propose establishing cities of refuge
in Israel where persons found to have committed manslaughter may find
shelter pending the death of a high priest.16 Modern death penalty pro-
ponents do not generally call for capital punishment for such offenses as
sorcery (Exod. 22:18; Lev. 20:6, 27),17 kidnapping (Exod. 21:16;

8
As with Gen. 9:5-6 and Lev. 24:17, 21b, modern death penalty advocates generally read
some qualifying language such as “only in cases of first degree murder” into these texts.
See Megivern, Death Penalty (cited in Chapter Five, note 129).
9
See Chapter Five, Section B.1.b.ii.(a).
10
See Chapter Six, text accompanying notes 71–74.
11
See Chapter Five, Section B.1.e.ii.(b) and Chapter Six, Section C.2.
12
See Chapter Six, note 69 and accompanying text.
13
Arguably, prosecutors who quote this version of the lex talionis without such qualification
thereby, themselves, act as malicious, false witnesses. See generally, Recinella, Biblical
Truth (cited in Chapter Six, note 43), pp. 185–209; Welsh White, “Curbing Prosecutorial
Misconduct in Capital Cases: Imposing Prohibitions on Improper Penalty Trial
Argument,” 39 Am. Crim. L. Rev. 1147, 1177–79 (2002); Elizabeth A. Brooks, Note, “Thou
Shalt Not Quote the Bible: Determining the Propriety of Attorney Use of Religious
Philosophy and Themes in Oral Arguments,” 33 Ga. L. Rev. 1113, 1119–39 (1999); and
Brian C. Duffy, Note, “Barring Foul Blows: An Argument for a Per Se Reversible Error
Rule for Prosecutors’ Use of Religious Arguments in the Sentencing Phase of Capital
Cases,” 50 Vand. L. Rev. 1335 (1997).
14
The Leviticus version, applies only to mayhem, which was not a capital offense.
15
Exodus 21:28-32. See Chapter Five, Section B.1.b.ii.(b).
16
Deut. 19:4-13; Num. 35:6-34. See Chapter Six, Sections A.3. and A.5.
17
See Chapter Five, Sections B.1.b.vi.(a) and B.1.d.i.(a).
156 Justice and Compassion in Biblical Law

Deut. 24:7),18 worship of other gods or inciting other persons to so do


(Exod. 22:20; Deut. 13:1-18; 17:2-7),19 incest (Lev. 20:11-12, 14, 17),20
striking or cursing parents (Exod. 21:15, 17, Lev. 20:9),21 adultery (Deut.
22:13-27; Lev. 20:10,22 ungovernable sons (Deut. 21:18-21),23 violating the
sabbath (Exod. 31:12-17; 35:2-3)24, blaspheming the Name (Lev. 24:10-
16),25 buggery or bestiality (Exod. 22:19; Lev. 20:15-16),26 false prophecy
(Deut. 18:20),27 male homosexual intercourse (Lev. 20:13),28 refusal to
accept court rulings,29 or malicious, false testimony (Deut. 19:16-21).30
Nor do biblically oriented death penalty proponents generally
advocate adherence to the methods of execution commonly mandated
in biblical law, notably stoning or burning the offender to death.31
Neither do purportedly biblical literalists insist upon execution by the
entire local populace or by a private individual acting in the role of “the
avenger of blood.”32 Nor do those who cite with approval the lex talionis
often (or ever) commend punishing offenders by dismemberment or
otherwise inflicting injuries in kind (eyes, teeth, hands, feet, burns,
wounds, stripes or fractures). For that matter, few if any so-called biblical
literalists propose enslaving grandsons whose fathers happen to see their
grandfather naked in the course of a drunken stupor (Gen. 9:20-25), or
selling daughters into slavery (Exod. 21:7-11). Nor do they propose to
prohibit daughters from inheriting property if they have brothers (Num.
27:1-8), or to require men to marry their deceased brothers’ childless
widows (Deut. 25:5-10), or require owners of fields, orchards, and vine-
yards to allow the poor, widows, orphans or aliens to enter their lands in
order to glean or pick fruit and produce (Deut. 24:19-22; Lev. 19:9-10;
23:22). Nor do modern biblical “literalists” mandate tithing all crops

18
See Chapter Five, Sections B.1.b.v. and B.1.c.i.
19
See Chapter Five, Sections B.1.b.vi(c) and B.1.e.ii.(a).
20
See Chapter Five, Section B.1.d.ii.(b).
21
See Chapter Five, Sections B.1.b.iv, and B.1.d.ii.(a).
22
See Chapter Five, Sections B.1.c.ii.(b) and B.1.d.ii.(a).
23
See Chapter Five, Section B.1.c.ii.(a).
24
See Chapter Five, Section B. 1.f.i.(b).
25
See Chapter Five, Section B.1.d.i.(c).
26
See Chapter Five, Sections B.1.b.vi.(b) and B.1.d.ii.(a).
27
See Chapter Five, Section B.1.e.ii.(a).
28
See Chapter Five, Section B.1.d.ii.(b).
29
See Chapter Five, Section B.1.e.ii.(b).
30
Id.
31
Methods of execution described in biblical tradition are discussed in the present author’s
article, “The Death Penalty and Due Process in Biblical Law,” 81 Univ. of Detroit Mercy Law
Review 791–93 (2004).
32
Texts identifying executioners are examined in the same article, pp. 793–97.
Criminal Law in the Bible and Contemporary Application 157

every third year and the establishment of a national system of food banks
to provide for the needs of orphans, widows, aliens and Levites (Deut.
14:28-29).33
As has been suggested, biblical death penalty laws do not appear to have
been written in order to function as the basis for statutory enactments or
judicial decisions in these United States. Nor do many, if any, modern
biblically-oriented moralists, social philosophers or jurisprudes actually
propose to apply biblical laws literally in our time. Nevertheless, many
people in our time do quite plausibly consider biblical law—and other
biblical texts—instructive and important, even in regard to such prob-
lematic matters as capital punishment.

B. The Basic Value of Human Life

Certain underlying concerns, values or objectives have been identified in


Part II of this book. First and foundational, is consistently high regard
for human life. This value comes to expression both in the creation story,
which affirms that God created human beings, both male and female,
“in his own image” (Gen. 1:26-27 RSV),34 and also in the P account of
God’s instructions to Noah following the flood: “Whoever sheds the

33
It has been suggested that biblical “literalists,” sometimes characterized as “fundamen-
talists,” often are unfamiliar with the contents of the Bible or the findings of biblical
scholarship, but instead attribute biblical authority to secular beliefs and values shared
by others in their cultural settings. See generally, Charles Hudson, “The Structure of a
Fundamentalist Christian Belief-System,” in Samuel S. Hill, Jr. et al., eds., Religion and the
Solid South (Nashville: Abingdon Press, 1972), pp. 122–142. See also Recinella, Biblical
Truth (cited in Chapter Six, note 43), pp. 6–16. This pattern has been examined in con-
nection with white Southern Protestant attitudes toward racial segregation. See, e.g.,
Everett Tilson, Segregation and the Bible (Nashville: Abingdon Press, 1958). Christian
beliefs and values frequently have been merged or confused with secular ideologies in
many other cultural settings as well. See generally, H. Richard Niebuhr, Christ and Culture
(New York: Harper & Bros, 1951), pp. 83–115. As to white fundamentalist and biblical
literalist views regarding the death penalty, see Robert L. Young, “Religious Orientation,
Race, and Support for the Death Penalty,” in Stassen (cited in Chapter Five, note 3).
Proclivity toward violence as a means for resolving perceived concerns has been long
recognized as an aspect of American society, particularly in the “old” or “deep” South.
See Sheldon Hackney, “Southern Violence,” in Hugh Davis Graham & Ted Robert Gurr,
The History of Violence in America: A Report to the National Commission on the Causes and
Prevention of Violence (New York: Bantam Books, 1969), pp. 505–527; and W. J. Cash’s
classic volume, The Mind of the South (New York: Vintage, 1969).
34
Biblical Hebrew expresses emphasis by repetition of key terms. That God made human
beings in his own “image” is stated three times in these two verses. Whether that “image”
was conceived in terms of physical appearance or otherwise need not be determined for
present purposes.
158 Justice and Compassion in Biblical Law

blood of man, by man shall his blood be shed; for God made man in his
own image” (Gen. 9:6 RSV).35 The basic value of human life36 is also
implicit in all other laws that make homicide a capital offense, both those
laws expressed in general terms (notably Lev. 24:17, 21b)37 and those
referring to particular circumstances, such as premeditated murder
(Exod. 21:12-14),38 the death of a pregnant woman (Exod. 21:22-24),39
death caused by a goring ox (Exod.21:28-32),40 sacrificing children to a
foreign god (Lev. 20:1-5),41 and giving malicious and false testimony which
could result in the execution of an innocent person (Deut. 19:16-21).42
Laws making the worship of other gods a capital offense correlate with
the recurrent biblical affirmation of God (or YHWH) as the Source and
Valuer of all that is,43 and in particular, as the one and only God to whom
Israel owed its existence and allegiance. With this, also, is the under-
standing, expressed both in numerous biblical laws and by many of the
prophets, that this God, YHWH, would bring judgment upon his people
in the form of catastrophe if not total destruction, should they turn away
from him and instead worship other deities.44 Thus, biblical laws making
worship of other gods a capital offense also are grounded in concern to
preserve the well-being, indeed, the lives of YHWH’s people.45
Several other capital laws, though not concerned with homicide,
likewise express concern for the bodily or moral integrity of persons.

35
See Chapter Five, note 129.
36
Notwithstanding assumptions and claims by many proponents and opponents of envi-
ronmental exploitation, a great deal of biblical tradition underscores the positive
value of all kinds of living beings. See generally Richard Hiers, “Reverence for Life and
Environmental Ethics in Biblical Law and Covenant,” Forum on Religion and Ecology,
revised version available online at http://fore.research.yale.edu/religion/christianity/
essays/chris_hiers_index.html Click on “PDF of Full Article” for text and endnotes.
37
See Chapter Five, Section B.1.d.ii.(a).
38
See Chapter Five, Section B.1.b.i.
39
See Chapter Five, Section B.1.b.ii.(a).
40
See Chapter Five, Section B.1.b.ii.(b).
41
See Chapter Five, Section B.1.d.i.(b).
42
See Chapter Five, Section B.1.e.ii.(b) and Chapter Six, Section C.2.
43
See generally, H. Richard Niebuhr, Radical Monotheism and Western Culture (Louisville:
Westminster/John Knox Press, 1993).
44
See, e.g., Deut. 6:14-15; 8:11-20; 11:16-17; Jer. 7:1-15, 30-34; 11:9-17; Hos. 11:1-7 &
13:1-16.
45
See, e.g., Exod. 22:20, considered in Chapter Five, Section B.1.b.vi.(c), and Deut. 13;
1-18; 17:2-7; & 18:20, Chapter Five, Section B.1.e.ii.(a). So, likewise, laws calling for the
death of sorceresses, mediums and wizards (Exod. 22:18; Lev. 20:27), Chapter Five,
Sections B.1.b.vi.(a) and B.1.d.i.(a), and the law against blaspheming the Name
(Lev. 24:10-16, 23), Chapter Five, B.1.d.i.(c). The law prohibiting work on the sabbath
may also have been prompted by such concern, to the extent that sabbath observance
was intended to honor YHWH. See especially Exod. 20:8-11 (indicating this purpose).
Criminal Law in the Bible and Contemporary Application 159

For instance, laws penalizing kidnapping (Exod. 21:16; Deut. 24:7),46


“buggery” (Exod. 22:19; Lev. 20:15-16),47 adultery (Deut. 22:22-27;
Lev. 20:10),48 and incest (Lev. 20:2-21).49 Some of these laws also evidently
were intended to preserve family and community social structures, nota-
bly those prohibiting various types of extra-familial sexual activity. So
also, laws against cursing or striking parents (Exod. 21:15, 17; Lev. 20:9),50
and the ungovernable (or delinquent) son law (Deut. 21:18-21).51 The
law penalizing refusal to obey court rulings (Deut. 17:8-12)52 obviously
was intended to promote a just social order. Such concern likewise is
implicit in the many biblical laws establishing due process protections
for the accused.

C. The Critical Importance of Not Executing


Innocent Persons

Closely related to concern for the value of human life, biblical laws
implicitly, and often explicitly, insist that only those persons who deserve
to die should be put to death.53 In this connection, attention is often
directed to the alleged offender’s intent. Moreover, several laws are
designed to assure that only those who actually committed a capital
offense are executed. And some of these laws caution in particular
against biased or preferential treatment of the accused on the basis of
their economic and social or ethnic status.
The alleged offender’s intent is the focal inquiry mandated in most of
the homicide statutes.54 What may have been the earliest biblical capital
law clearly articulates such inquiry: “Whoever strikes a man so that he
dies shall be put to death,” but only in those cases when “a man willfully

46
See Chapter Five, Sections B.1.b.v. and B.1.c.i.
47
See Chapter Five, Sections B.1.b.vi.(b), and B.1.d.ii.(a).
48
See Chapter Five, Sections B.1.c.ii.(b) and B.1.d.ii.(a).
49
See Chapter Five, Section B.1.d.ii.(b).
50
See Chapter Five, Sections B.1b.iv., and B.1.d.ii.(a).
51
See Chapter Five, Section B.1.c.ii(a). See also Good, “Capital Punishment” (cited in
Chapter Three, note 13), p. 976: “It would seem . . . that the solidarity and integrity of
the family was a quite central value for the Hebrews . . . . Further, the authority of and
the honor and respect owed to parents are especially noticeable, and the mother in this
regard stands equal to the father.”
52
See Chapter Six, Section C.2.
53
See generally, Recinella, The Biblical Truth (cited in Chapter Six, note 43), contrasting
biblical concerns with current American practices.
54
As noted elsewhere, Lev. 24:17, 21b, are apparent exceptions. See Chapter Five, Section
B.1.d.ii.(a).
160 Justice and Compassion in Biblical Law

attacks another to kill him treacherously” (Exod. 21:12-14 RSV).55


The owner of an ox that fatally gores someone is to be executed only if
his conduct constitutes gross negligence or reckless endangerment and
then, only after he has been warned to take corrective action (Exod.
21:28-32).56 Laws in the RDC (Deut. 19:4-13) and the PC (Num. 35:6-34)
specifically distinguish between capital murder and manslaughter on the
basis of the offender’s intent or lack of same.57 The Deuteronomic law
explicitly observes that the accidental or merely negligent manslayer
does “not deserve to die” and cautions against allowing “innocent blood”
to be shed by those carrying out executions. Cities of refuge—places
where those who had committed homicide could find sanctuary pending
trial—were to be established specifically “lest innocent blood be shed . . .
and so the guilt of bloodshed be upon you” (Deut. 19:4-10). Intent to
commit the prohibited act is an implicit element in virtually all other
capital offenses, for example, striking or cursing parents (Exod. 21:15,
17; Lev. 20:9), buggery or bestiality (Exod. 22:19; Lev. 20:15-16), kidnap-
ping (Exod. 21:16; Deut. 24:7), adultery (Deut. 22:13-27; Lev. 20:10),
incest (Lev. 20:11-21); and inciting to allotheism or the worship of other
gods (Deut. 13:1-18; 17:2-7).58
In biblical jurisprudence, it was critically important that only those
found guilty of a capital offense should be punished accordingly. This
concern is stated explicitly in the CC: “Keep far from false charges, and
do not slay the innocent and righteous . . .” (Exod. 23:7 RSV). The
Deuteronomic Code applies this principle to intergenerational punish-
ment: “The fathers shall not be put to death for the children, nor shall

55
See Chapter Five, Section B.1.b.i. Biblical law does not, however, address the questions
whether minors, mentally retarded persons, or persons with mental illnesses were to be
deemed capable of acting with culpable intent. As to these questions, see generally,
“Beyond Atkins: A Symposium on the Implications of Atkins v. Virginia. 33 U New Mexico L.
Rev. no. 2 (Spring, 2003), and Jeffrey A. Fager and Valerie West, “The Decline of the
Juvenile Death Penalty: Scientific Evidence of Evolving Norms,” in Criminal Law Working
Papers, Nellco Legal Scholarship Repository, http://lsr.nellco.org/columbia/pllt/
papers/0476 (2004). See Recinella, Biblical Truth (cited in Chapter Six, note 43), pp. 220–27,
on “levels of capacity and diminished capacity: age, mental illness, and mental retarda-
tion” as factors in determining guilt and appropriateness of the death penalty.
56
See Chapter Five, Section B.1.b.ii.(b). Gross negligence or reckless endangerment also
may have been imputed when the lex talionis applied if pregnant wives were harmed by
brawling males. See Chapter Five, Section B.1.b.ii.(b).
57
See Chapter Five, Sections B.1.e.i., and B.1.f.ii.
58
Notable exceptions are the cases of the man who blasphemed the Name (Lev. 24:10-16,
23) and the man who gathered sticks on the sabbath (Num. 15:32-36), both P traditions,
where the offenders had no previous specific notice as to the offenses, both being cases
of first impression where capital sentences were applied ex post facto.
Criminal Law in the Bible and Contemporary Application 161

the children be put to death for the fathers; every man shall be put to
death for his own sin” (Deut. 24:16 RSV).59 This fundamental principle
comes to expression also in the early narrative account of Abraham’s
negotiation with YHWH over the fate of Sodom (Gen. 18:16-33).60
The core issue there is whether it would be right for YHWH to kill any
innocent persons along with the wicked. At the outset, Abraham addresses
YHWH in the following strong language:

Will you indeed sweep away the righteous with the wicked? Suppose
there are fifty righteous within the city; will you then sweep away the
place and not forgive it for the fifty righteous who are in it? Far be it
from you to do such a thing, to slay the righteous with the wicked, so
that the righteous fare as the wicked! Far be that from you! Shall not
the Judge of all the earth do what is just? (Gen. 18:23b-25)

Eventually, as the story is told, YHWH agrees to spare the city if as few as
ten innocent persons could be found there. That the innocent might
wrongly be put to death was clearly a matter of great concern. Executing
persons who were innocent or did “not deserve to die” would bring “the
guilt of bloodshed” upon the entire community.61 It might be suggested
that the same would be particularly true in a democratic society, where
the criminal justice system has been established by its citizens.62

59
See Chapter Six, Section D.1.
60
See Chapter Four, note 5. The story probably is part of the J narrative that may be dated
c. 950 BCE. See generally, Timothy D. Lytton, “‘Shall Not the Judge of the Earth Deal
Justly?’: Accountability, Compassion, and Judicial Authority in the Biblical Story of
Sodom and Gomorrah,” 18 J. of L. & Relig. 31 (2002–03). Lytton suggests that the story
illustrates God’s “accountability and compassion” in judging, norms which human
judges would do well to emulate. Id. at p. 51.
61
Deut. 19:4-10.
62
As to execution of innocent persons in U.S. jurisdictions, see, Ursula Bentele, “Does the
Death Penalty, by Risking Execution of the Innocent, Violate Substantive Due Process?,”
40 Houston L. Rev. 1359 (2004); Hugo Adam Bedau, Michael L. Radelet, and Constance
E. Putnam, “Convicting the Innocent in Capital Cases: Criteria, Evidence, and Infer-
ence,” 32 Drake L. Rev. 587 (2004); R Bedau and Radelet, “Miscarriages of Justice,” and
Radelet, Bedau & Putnam, In Spite of Innocence (cited in Chapter Five, note 3); Samuel R.
Gross, “Lost Lives: Miscarriages of Justice in Capital Cases,” 42 U Mich. L. Quad. Notes 82
Spring, 1999; and frequently appearing newspaper items, e.g.: “High Court Shuns
Death-row Appeal,” (Knight-Ridder), The Tampa Tribune, Dec. 3, 1991, p. 5; “Execution
and Inconsistency,” (editorial), The Washington Post, Jan. 4, 1995, p. A14; Susan
Greenbaum, “Mistakes Land Too Many on Death Row,” The Tampa Tribune, Feb. 28,
2000, p. 6; William Raspberry, “Bush Needs to Stop Texas Executions,” The Register Guard
(Eugene, Oregon), June 26, 2000, p. 9A; Toni Lacy, “Push to Reform Death Penalty
Growing,” in USA Today, Feb. 20, 2001, page 5A; and “Study Finds Flaws in Death
Penalty” (AP), Gainesville Sun, Feb. 12, 2002, p. 2B. See also Elizabeth Mannion,
162 Justice and Compassion in Biblical Law

Several biblical “due process” laws apparently were intended to assure


that only those who had committed capital offenses would be put to
death.63 These laws evidently were meant both to identify the actual
offenders, and also to make certain that all the elements of the charged
offense had been met. Thus various laws call for evidentiary hearings or
diligent inquiry as to relevant facts.64 Several biblical trial scenes illus-
trate both explicit and implicit due process procedures intended to
determine relevant facts in capital cases.65
Perhaps the most significant such due process law was the two- (or
more-) witness requirement first found in the RDC (Deut. 17:6), and
later extended in the PC (Num. 35:30). As stated broadly in both
versions, this law apparently was intended or understood to apply in all
capital cases.66 Thus circumstantial evidence would no longer suffice for
conviction as it may have done in earlier times.67 In modern United States
jurisprudence, convictions may be, and often are based solely on circum-
stantial evidence,68 so long as the trier of fact is persuaded of the accused’
guilt “beyond reasonable doubt.” This book does not advocate adoption
of a two-witness requirement for capital convictions in contemporary law.
However, the biblical rule clearly was intended to assure that convictions
in capital cases were based upon the best evidence available. Those who
find biblical norms instructive for later social policy might wish to imple-
ment standards and practices that offer similar assurance.69

“Death Penalty Moritorium,” The Florida Voter: News and Views from the League of Women
Voters (Winter, 1994), p. 1.
63
Lloyd R. Bailey concludes his study, Capital Punishment: What the Bible Says (Nashville:
Abingdon Press, 1987), p. 91, urging that in modern times there should be a “strenuous
demand” for “certainty as to guilt.” Bailey’s book does not, however, discuss biblical due
process laws intended to enhance such certainty.
64
See Chapter Six, Section B.2. Other laws implicitly require evidence or testimony in
order to identify offenders or establish the elements of the offenses in question.
See Chapter Six, Section B.1. Laws providing for cities of refuge were intended to
provide sanctuary for offenders pending subsequent hearings or trials in homicide
cases. See Chapter Six, Section A.
65
See Chapter Three.
66
See Chapter Six, Section C.1.
67
See, e.g., the case of Tamar, discussed in Chapter Three, Section I.; the adultery laws in
D and H, Chapter Five, Sections B.1.c.ii.(b) and B.1.d.ii.(a); and the homicide laws in the
CC and H, Chapter Five, Sections B.1.b. and B.1.d.
68
See Chapter Six, note 48 and accompanying text.
69
In modern times, such evidence likely would include fingerprint, hair, blood type, and
DNA analysis. See Jain, “Mitigating” (cited in Chapter Six, note 48), p. 783. Jain notes
that Connecticut law provides: “No person shall be convicted of any crime punishable by
death without the testimony of at least two witnesses, or that which is equivalent there
to.” Conn. Gen. Stat., sects. 54–83 (1960, Id., note 119). See also, Joshua Hillel Hubner,
Note, “Blinded by Science: Does the General Acceptance of Forensic DNA Evidence
Criminal Law in the Bible and Contemporary Application 163

The two-witness rule was buttressed in P tradition by a new law, requir-


ing eye- or otherwise knowledgeable witnesses to testify (Lev. 5:1).70 The
RDC also set out one other new, though related law evidently intended
to promote truthful testimony: the lex talionis provision for punishing
false, malicious witnesses (Deut. 19:16-21).71 In addition, still another
new RDC law required witnesses in capital cases to throw the first stone
if the accused was found guilty (Deut. 17:7).72 All these provisions clearly
were intended to enhance the likelihood that no innocent person would
be put to death on a capital charge.
A related matter of great concern in biblical law was fair and equal
treatment of persons without regard to their social-economic or alien
status. Laws specifically admonish persons judging suits involving the
poor to be impartial are found both in the CC (Exod. 23:3, 6) and H
(Lev. 19:15).73 Biblical law was especially solicitous as to the rights or
interests of sojourners, foreigners or aliens residing in Israel—as if
Mosaic law included an Equal Protection clause. Thus laws were to be
applied equally to aliens as to natives of Israel.74 Such sojourners would
have constituted what now might be called “ethnic minorities.” In the

Warrant a More Straightforward Approach to Admissibility,” 18 U. of Fla. J. of L. and


Public Policy 93 (2007); “DNA tests help free men after 12 years” (AP), The Gainesville Sun,
Apr. 16, 1999, p. 3A; and Jonathan Alter et al., “The Death Penalty on Trial,” Newsweek,
June 12, 2000, pp. 24–34. And see Recinella, Biblical Truth (cited in Chapter Six, note
43), pp. 149, 169–72, and 331–33.
70
See Chapter Six, Section C.3.
71
See Chapter Six, Sections C.2. and D.2.
72
See Chapter Six, Section C.2.
73
See Chapter Four, Sections A, and B.1. Economic or class-based discrimination in
application of capital punishment remains an issue in U.S. jurisprudence. See Steffen,
Executing Justice (cited in Chapter Five, note 3), pp. 100–01 and 125, and Hanks, Against
(cited in Chapter Five, note 10), pp. 107–10.
74
See, e.g., Lev. 19:33-34; 24:22; Num. 15:14-16; 35:15; see also Deut. 1:16-17. See Chapter
Four, Section B.2. In the United States, the category of resident aliens could be under-
stood to include persons who themselves, or whose ancestors, came from other nations,
in brief, ethnic, and racial minorities. Racial discrimination in application of the death
penalty continues to be a matter of concern. See, e.g., Recinella, Biblical Truth (cited in
Chapter Six, note 43), pp. 247–273; Charles J. Ogletree, Jr., “Black Man’s Burden: Race
and the Death Penalty in America,” 81 Oregon L. Rev. 14 (2002); Megivern, Death Penalty
(cited in Chapter Five, note 1), pp. 399 and 402; Hanks, Against (cited in Chapter Five,
note 10), pp. 95–100; and Friends Committee on National Legislation and FCNL Educa-
tion Fund, “The Death Penalty, Information Packet,” pp. 4–5 (no date). Reports regarding
such discrimination appear commonly in newspapers: see, e.g., Tom Wicker, “Court
Ignores Death Penalty Bias,” Gainesville Sun, Apr. 28, 1987, p. 8A; Robin Lowenthal,
“Study Says Death Given More to Killers of Whites,” The Florida Times-Union, Nov. 14,
1991, p. 1; Elizabeth Olson, “U.N. Report Criticizes U.S. for ‘Racist’ Use of Death
Penalty,” The New York Times, Apr. 7, 1998, p. A15; and “Study Shows Race a Factor in
Death Penalty Decisions” (AP), The Florida Alligator, Jan. 8, 2003.
164 Justice and Compassion in Biblical Law

context of capital trials, these laws were meant to ensure that guilt or
innocence would be determined on the basis of relevant facts, not the
economic or social status, or the race or national origin of the accused.
These important considerations have not yet been factored into modern
equal protection jurisprudence as applied to capital cases in the United
States.
In summary, biblical law gave expression to a highly positive evaluation
of human life, and affirmed the bodily and moral integrity of persons
individually, in families, and as essential for sustaining an ordered and
just society. Those whose conduct violated laws intended to implement
these values might, therefore, be subject to the death penalty.75 Biblical
law was particularly concerned lest innocent persons be wrongly
executed. Moreover, only those who had recklessly or intentionally com-
mitted capital offenses were to be put to death. Numerous due process
procedures were designed to effectuate these concerns. And those who
sat in judgment were strongly admonished to consider the evidence
impartially, according equal protection of the laws, whether the accused
were rich or poor, native born or foreigners.
All these laws clearly were intended to protect and promote the inter-
ests of both the larger community and its individual members. Biblical
law was concerned with the well-being of the community and its mem-
bers in other ways as well. Such concern is apparent in a series of laws
which can be classified, again using modern terminology, as “biblical
social legislation.” These laws are examined in Part III, which immedi-
ately follows.

75
Although cities of refuge and custodial arrangements provided for temporary confine-
ment pending trial or judicial decision, see Lev. 24:12, quoted in Chapter Five, text
accompanying note 85, the biblical criminal justice system did not contemplate use of
prison sentences or possibilities for rehabilitation or restorative justice; nor were such
conditions as insanity, mental retardation, a history of abuse, or other mitigating factors
considered in making sentencing decisions. See above, note 55. Biblical law likewise,
and necessarily, did not address the question whether someone who had committed
homicide, been incarcerated and had been genuinely rehabilitated, so as to become, in
effect, a different person, might or should on that account be spared execution. But see
Ezek. 18:21-23, quoted in Chapter Five, text accompanying note 22.
Part III

Social Legislation

Objectivists will often hear a question such as: “What will be done about the
poor or the handicapped in a free society?” The altruist-collectivist premise,
implicit in that question, is that men are “their brother’s keepers” and that the
misfortune of some is a mortgage on others. The questioner is ignoring or evad-
ing the basic premises of Objectivist ethics and is attempting to switch the discus-
sion onto his own collectivist base. Observe that he does not ask: “Should
anything be done?” but “What will be done?”—as if the collectivist premise had
been tacitly accepted and all that remains is a discussion of the means to imple-
ment it.1
If there is among you a poor man, one of your brethren, in any of your towns
within the land which YHWH your God gives you, you shall not harden your
heart or shut your hand against your poor brother, but you shall open your hand
to him, and lend him sufficient for his need, whatever it may be. . . . You shall
give to him freely, and your heart shall not be grudging when you give to him;
because for this YHWH your God will bless you in all your work and in all that
you undertake. For the poor will never cease out of the land; therefore, I com-
mand you, You shall open wide your hand to your brother, to the needy and to
the poor, in the land.
Deuteronomy 15:7-11(RSV)

The land of Israel, in more idyllic biblical descriptions, was said to flow
“with milk and honey,”2 and otherwise abound with nature’s (or YHWH’s)
plenty.3 But not all Israelites owned land or otherwise had access to its
benefits. Biblical texts frequently mention the poor. Certain classes of

1
Ayn Rand, The Virtue of Selfishness (Signet, 1961), p. 80.
2
See Exod. 3:7-8; Num. 13:21-27; Deut. 6:3; 11:9; 26:9, 15.
3
See e.g., Deut. 6:10-11; 8:7-10; 11:10-12.
166 Justice and Compassion in Biblical Law

persons were especially vulnerable because they lacked independent


means of support: resident aliens or sojourners, widows, orphans, slaves,
and hired servants. A few texts also mention handicapped or disabled
persons. At some point in biblical history, Levites came to need assis-
tance, and were, in effect, added to the welfare rolls.
By contrast, concern for the welfare of the poor is not characteristic of
other ancient cultures, including those of Greece and Rome.4 In West-
ern social policy and jurisprudence, “distributive justice” is a relatively
recent concept.5 However, there has been a long tradition of concern for
the poor in this country. To some extent, that concern derives from
Christian and Jewish commitment to the biblical faith and the norms
implicit in biblical law.
Many of the laws of Plymouth Colony (1620–1691) mandated arrange-
ments for the relief or maintenance of poor persons. For example,
a 1642 law reads:

It is enacted by the court that every township within this Government


shall make competent provision for the maintenance of their poor
according as they shall find most convenient and suitable for them-
selves by an order and general agreement in a public town meeting.6

Those signing on to the Mayflower Compact committed themselves at


the outset to seek “the general good of the Colony”:

We whose names are underwriten . . . doe by these presents solemnly &


mutually in the presence of God, and one another, covenant and combine

4
See generally, Raphael Sealey, The Justice of the Greeks (U Mich Press, 1994); and Alan Wat-
son, The Spirit of Roman Law (U Ga Press, 1995). As to concern for the poor in other
Ancient Near Eastern laws, see Moshe Weinfeld, Social Justice in Israel and the Ancient Near
East (Magnes Press/Fortress Press, 1995).
5
See E. Clinton Gardner, “Justice, Virtue, and Law,” 2 J. of L. & Relig. 393 (1983), discussing
distributive justice as opposed to efforts to ground a contemporary understanding of jus-
tice on notions of virtue. Gardner gives an illuminating account of law in the context of
covenantal community, drawing especially on insights developed by H. Richard Niebuhr.
6
Records of the Colony of New Plymouth (William White, 1861; reprinted by AMS Press, 1968)
vol. 11, pp. 111–12 (adapted to modern spelling). For other instances of such legislation
see id., pp. 40–41, 193–94; and vol. 1, p. 22 (provisions for widows and orphans). Such
laws gave expression to the Colony’s founding ideals. See, e.g., Dec. 15, 1617 letter by
John Robinson and William Brewster to Edwin Sandys, quoted in Harry M. Ward, Statism
in Plymouth Colony (Kennikat Press, 1973), p. 6:
We are knite togeather as a body in a most stricte and sacred bond and covenante of
the Lord, . . . by vertue whereof we doe hould our selves straitly tied to all care of each
others good, and of the whole by every one and so mutually.
Introduction to Social Legislation 167

our selves togeather into a civil body politick . . .; and by vertue hereof to
enacte, constitute and frame such just & equall lawes, ordinances, acts,
constitutions, & offices, from time to time, as shall be thought most meete
and convenient for the generall good of the Colony . . .7

Many early American communities, appropriately, designated themselves


“commonwealths,” thereby indicating commitment to an ethos or ethics of
concern for the common or general welfare of their respective populaces.
Such concern is expressly articulated in the General Welfare Clause of the
Constitution8 which has been held indicative as to the Framers’ Constitu-
tional intent.9
By the 19th century, however, both religious and secular leaders, influ-
enced by, as well as giving expression to the unbiblical creeds of laissez-
faire individualism and social Darwinism, commonly blamed the poor
for their poverty,10 and extolled the putative virtues of the wealthy.11
Today many otherwise pious (or self-righteous) persons proudly pro-
claim their hostility to the poor, and consider “welfare” programs on their
behalf anathema.12 From the lamentable “McCarthy” era of the 1950s to

7
Mayflower Compact, quoted in William Bradford, Of Plymouth Plantation, Harvey Wish,
ed. (Capricorn Books, 1962), pp. 69–70.
8
Constitution of the United States, Preamble. Quoted at the beginning of Chapter Nine.
9
Ellis v. City of Grand Rapids, 257 F. Supp. 564 (D. Mich., 1966) (Developing hospitals
and medical care facilities in conjunction with urban renewal projects accords with the
governmental objective of promoting the general welfare).
10
Blaming the victim, of course, functions to relieve those doing the blaming from any
sense of obligation to assist. See Michael Harrington, The New American Poverty (Holt,
Rinehart & Winston, 1984), pp. 148, 174, 202–03. Additionally, as Job—one of the great
biblical psychologists—observed, blaming the victim for his plight serves to alleviate the
blamers’ fears that they too might sometimes share such fate. See Job 6:14-23, critiquing
motives of his “friends.”
11
See generally Conrad Cherry, ed., God’s New Israel: Religious Interpretations of American
Destiny (Prentice Hall, 1971), pp. 211–270. As to the history and problematics of individ-
ualism as a recurrent source of normative confusion in American culture, see Robert N.
Bellah, Habits of the Heart: Individualism and Commitment in American Life, updated ed.
with a new introduction (HarperSanFrancisco, 1996). For many years following the
New Deal and the Second World War, it was commonly assumed that poverty was no lon-
ger a problem in the United States. That illusion was punctured in the early 1960s by both
the civil rights movement’s spotlight on the actual conditions of minority citizens and by
publication of Michael Harrington’s book, The Other America (Macmillan, 1962), which
showed that poverty in the United States was not confined to “rural pockets” or non-
whites, but rather affected some quarter of the overall population.
12
Hostility toward the poor and opposition to aiding them is not new in Anglo-American
law and society. See generally Joel F. Handler, The Poverty of Welfare Reform (Yale Univ.
Press), pp. 10–31 (reviewing the history of welfare beginning with the 1349 English
Statute of Laborers). In the 19th Century, Charles Dickens clearly identified such
ideology, attributing it to many of his literary characters, such as Ebenezer Scrooge
(prior to his famous supernaturally induced conversion) in The Christmas Carol, or
168 Justice and Compassion in Biblical Law

the present, politicians pandering to popular prejudice have often


equated social welfare with socialism, and socialism with communism,
denouncing all alike.13 Promoting such ideology, of course, provides a
convenient rationalization for ignoring others’ needs, while pursuing
one’s own interests without restraint.
In contrast, biblical law is distinctive in its consistent regard for the
welfare of “the poor” and otherwise vulnerable or needy members of
society.14 Several biblical laws were intended to protect such persons
from abusive treatment, whether by courts or by private action. Other
biblical laws called for positive or affirmative actions by individuals and
the community as a whole. In what follows, both kinds of laws are consid-
ered part of the broad category of biblical social welfare legislation.15
This book does not propose that biblical law is directly applicable to
modern legal or social policy issues. In its terms, biblical law was intended
to govern the conduct of YHWH’s people in ancient Israel, not that of a
modern, pluralistic, democratic society. Moreover, modern circumstances

Alderman Cute and Sir Joseph Bowley in The Chimes. Norman C. Amaker has spelled
out the impact of social policy grounded in such hostility upon the welfare of persons
during the 1980s: Civil Rights and the Reagan Administration (Urban Inst Press, 1988).
Responding to the needs of the poor has not, typically, been part of the agenda of the
religious right. See Elizabeth M. Bounds, Welfare as a Family Value: Conflicting Notions, in
Elizabeth M. Bounds, ed., Welfare Policy (Pilgrim Press, 1999), pp. 157–74. See also,
Marvin Olasky, “Welfare Reform, Texas Style,” in Citizen, vol. 13, no. 7, 20–21 ( July, 1999)
(commending voluntary church-sponsored welfare programs, but expressing concern
lest these, like “the government mistakes” might result in “welfare dependency”). See
generally Peggy L. Shriver, The Bible Vote: Religion and the New Right (Pilgrim Press, 1981).
See also Steven M. Teles, Whose Welfare? AFDC and Elite Politics (U Kans Press, 1998),
pp. 150–52 (critiquing conservative Republican contentions that government welfare
programs foster “illegitimacy”). For a somewhat pungent account of antiwelfare ideo-
logues, see Molly Ivins, You Got to Dance with Them What Brung You (Vintage, 1998), pp.
17–22, 26–28, 132–38, 142–44.
13
Fay Laney Cook and Edith J. Barrett offer a more positive review of public attitudes in
their book, Support for the American Welfare State: The Views of Congress and the Public (Colum
Univ. Press, 1992). The book was written before the 1992 Congressional election.
14
“The fundamental moral perspective of the biblical rules is its concern to protect the
most vulnerable members of the community against advantage-taking or exploitation.
In a word, the interest is in justice.” Paul B. Rasor, “Biblical Roots of Modern Consumer
Credit Law,” 10 J. of L. & Relig. 157, 167 (1992). See also Barend A. de Vries, Champions
of the Poor: The Economic Consequences of Judeo-Christian Values (Georgetown Univ. Press,
1998), pp. 173–82. And see Thomas W. Ogletree, The Use of the Bible in Christian Ethics
(Fortress Press, 1983), pp. 55–57 (on the status of vulnerable persons in biblical law).
15
Some laws considered in this book might also be characterized as “civil rights” legisla-
tion. Persons within the indicated “protected classes” under these laws, however, are
largely the same as the designated beneficiaries of laws calling for affirmative care
considered in Section B of Chapter Eight. Together, these laws concern the well-being
or welfare of the more vulnerable members of the community.
Introduction to Social Legislation 169

are considerably different from those in biblical times.16 For instance,


contemporary society, especially in the United States, enjoys a level of
prosperity that makes possible a standard of living for all that could not
have been imagined in ancient times. Such prosperity raises new ethical
and special policy questions as to how such wealth should be distributed.
In modern democratic societies, such questions necessarily become
political issues. On the other hand, the human condition has not changed
to the extent that contemporary interpersonal and social concerns are
completely different from those of persons living in the biblical period
which ended barely a hundred generations ago. There are still poor,
resident aliens or refugees, widows, orphans, hired workers (and, in
some parts of the world, slaves) who are especially vulnerable to oppres-
sion and often lack the basic necessities for life. It may prove instructive
to see how concerns about such persons were addressed in biblical times
and in biblical law. In some cases, it may even turn out that modern law
depends somewhat directly on biblical law.17 This book does not under-
take to identify such possible direct connections. However, to the degree
that values embedded in modern Western law and public policy derive
from biblical sources, it may be important to recognize how such values
come to expression in biblical tradition, particularly, in biblical law.
As Reinhold Niebuhr observed long ago:

Religious ideas and traditions may not be directly involved in the orga-
nization of a community. But they are the ultimate sources of the moral
standards from which political principles are derived.18

This observation may be especially pertinent given the difficulty modern


and postmodernist moralists and legal philosophers experience in find-
ing any basis for making normative judgments. Partly this difficulty
results from contemporary culture’s credulity as to the claims of moral

16
Thus Edward McGlynn Gaffney, Jr., “Biblical Religion and American Politics,” 1 J. of
L. & Relig. 171, 182 (1983): “In my view, no text from a prior period can fairly be expected
to provide direct answers to questions not asked at the time that the text was written.”
17
See Rasor, “Biblical Roots” (cited in note 14), p. 58: “[M]any of our modern consumer
credit laws have direct antecedents in the Biblical legal codes, and modern law contains
strong moral underpinnings which reflect the moral and religious norms found in
Biblical law.” Biblical laws, of course, substantially inform much of the law of the modern
State of Israel.
18
Reinhold Niebuhr, The Children of Light and the Children of Darkness (Scribner’s, 1944),
p. 125. See also Robert N. Bellah, The Broken Covenant: American Civil Religion in a Time of
Trial (Seabury Press, 1975), p. ix, quoted at the beginning of the discussion at the end
of this book captioned “Concluding Observations.”
170 Justice and Compassion in Biblical Law

relativism19 and radical empiricism. Proponents of the latter, including


various pragmatic schools, often propose “solutions” to social “prob-
lems,” but are unable—without recourse to normative considerations—
to explain what a social problem is, why anyone should try to “solve” it, or
what a solution might look like.20 Social contractarians attempt to move
from self-interest—the position so consistently and passionately articu-
lated by the late Ayn Rand—to concern for others by imagining hypo-
thetical and presumably self-enforcing agreements made by entirely
“rational” people in hazy antiquity (or behind “the veil”),21 agreements
that presumably somehow remain binding in the world of actual personal
and social interactions.22 Ronald Dworkin has recommended deriving
political and legal rights, principles, or norms by stipulating, postulating,
or simply assuming their existence and authoritative force, which some-
how others should recognize as controlling.23 Coherent normative
discourse has been virtually abandoned in Critical Legal Studies circles,
where normative concerns of one sort and another nevertheless under-
lie and drive critical analysis.24
Not surprisingly, perhaps, some legal philosophers recently have taken
another look at the religious traditions which—whether secularist folk

19
See Mary Midgley, Can’t We Make Moral Judgments? (Bristol Press, 1991), analyzing and
critiquing moral relativist claims.
20
See, e.g., Richard A. Posner, The Problems of Jurisprudence (Harvard Univ. Press, 1990). To
speak of a social (or jurisprudential) “problem” is to say that there is something wrong
about the situation in question. To speak of a “solution” is to say that there is or should
be a better way to reorder the societal interactions or arrangements. Those who are com-
mitted to the notion that only objective reality or rational statements can be valid,
generally do not acknowledge the basis for their own moral judgments.
21
See John Rawls, A Theory of Justice (Oxford: Clarendon Press, 1972).
22
To espouse self-interest, of course, is to take a normative position, e.g., that it is good or
right for me to pursue my self-interest, or that everyone should seek his or her own self-
interest. Seeking one’s own self-interest does not mean that a person cannot or should
not be concerned with others’ welfare; but self-interest does not necessarily prompt con-
cern for others’ welfare. Rand’s position, belabored throughout many of her writings,
argues this point consistently and correctly.
23
Ronald M. Dworkin, Taking Rights Seriously (Harvard Univ. Press, 1977), e.g., pp. xv, 162,
181–82, 273.
24
As to the problematics of normative claims in once popular “Critical Legal Studies”
(CLS) circles, see, e.g., E. Dana Neacsu, “CLS Stands for Critical Legal Studies, if
Anyone Remembers,” 8 J L & Pol’y 415 (2000). Compare Anthony Cook’s proposal that
the late Dr. Martin Luther King, Jr.’s vision of “the beloved community” offers a positive
model for reconstructing society following the normative vacuum left by various CLS
deconstructions. See Anthony E. Cook, “Beyond Critical Legal Studies: The Reconstruc-
tive Theology of Dr. Martin Luther King, Jr.,” 103 Harv. L. Rev. 985 (1990), and his book,
The Least of These: Race, Law, and Religion in American Culture (Routledge, 1997).
Introduction to Social Legislation 171

like it or not—undergird much of Western normative reflection.25


The recent work of Michael J. Perry is especially significant in this
connection, focusing on the quest for warrants for human rights claims.26
Human rights issues are closely related to the topic of social welfare
legislation, and rights language occasionally occurs in biblical tradition.
For present purposes, however, it may suffice to suggest that Perry very
probably is correct in concluding that human rights claims are necessar-
ily religious in character, inasmuch as all normative judgments inevitably
are based upon trust in and loyalty or commitment to some source or
locus of meaning and value which is perceived and affirmed as good.27
The same appears to be the case with respect to concern for human

25
Religion—at any rate, the “Western” religions, Judaism and Christianity—is often
assumed, by the cultured among the despisers, to be irrelevant or worse. See, e.g.,
Weinstein, “Adjudicative Justice” (cited in Chapter Eight, note 5), pp. 412–13. See
comment by Brad Stetson, Human Dignity and Contemporary Liberalism (Praeger Pub.,
1998), p. 95:
The most apparent consequence of the liberal elites’ public disparagement of tradi-
tional religious conviction and its perspective on public policy and cultural
controversies is the marginalization of its contributions to the nation’s civic life
historically and to our current social exigencies, for example, welfare reform.
26
See especially, Michael J. Perry, The Idea of Human Rights: Four Inquiries (Oxford Univ.
Press, 1998). Perry argues that an intelligible case for human rights can be made only on
religious grounds. This thesis necessarily runs counter to the ideology of secular ratio-
nalist and postmodernist pundits. As one commentator has noted recently:
In arguing his case, [Perry] challenges those who wish to [contend] that religion is
not helpful or convincing, especially against the argument by secular thinkers such
as the neo-Kantian Jurgen Habermas, the neo-Pragmatist Richard Rorty, the neo-
Liberal Ronald Dworkin, and the neo-Classicist Martha Nusbaum, all of whom say that
they want to support human rights, but cannot supply a good reason for doing so.
Max L. Stackhouse, “Reflections on ‘Universal Absolutes,’” 14 J. of L. & Relig. 97,
98–99 (1999–2000). See generally 14 J. of L. & Relig. 1–163 (1999–2000), symposium
articles on Perry’s book cited above in this note.
27
See generally, H. Richard Niebuhr, Radical Monotheism and Western Culture (Harper,
1960), and below, Chapter Nine, notes 15, 21–23, and accompanying text. And see Stet-
son, cited above in note 25, p. 43: “To speak of human dignity as intrinsic is to speak of
human dignity in its most traditional, Judeo-Christian sense.” See also id. at p. 33,
n. 43 and accompanying text. Of course, secular humanists can and do affirm the value
of human life, but they do so as a matter of faith and as a moral judgment deriving from
that faith. As Richard Niebuhr observes, the proposition that all men (or persons) are
created equal can be understood only as an expression of commitment to the value
or worthiness of all human beings, notwithstanding obvious differences. Radical Mono-
theism at pp. 73–77. See below Chapter Nine, note 21 (further describing and analyzing
the faith and ethics of humanism).
For further discussion of the implication of H. Richard Niebuhr’s insights for social or
public policy, see Richard H. Hiers, “Normative Analysis in Judicial Determinations of
Public Policy,” 3 J. of L. & Relig. 77–115 (1985) and “Normative and Ostensibly
172 Justice and Compassion in Biblical Law

welfare. It does not follow, however, that Judaism and Christianity are the
only historical religions that support an ethics of human rights or
welfare.28 In biblical tradition, human rights—and all other normative
dimensions of life—are understood to be grounded in God’s or YHWH’s
concern for human welfare (and the well-being of all creation). That
concern comes to expression particularly in biblical laws governing
human conduct.

Norm-Neutral Conventions in Contemporary Judicial Discourse,” 14 Legal Studies Forum


107–39 (1990).
28
See, e.g., Azizah al-Hibri, “Islam, Law and Custom: Redefining Muslim Women’s Rights,”
12 Am U J Int’l L & Pol’y 1 (1997).
Chapter 8

Biblical Social Welfare Legislation

At the end of every three years you shall bring forth all the tithe of your produce
in the same year, and lay it up within your towns; and the Levite, because he
has no portion or inheritance with you, and the sojourner, the fatherless, and
the widow, who are within your towns, shall come and eat and be filled, that
YHWH your God may bless you in all the work of your hands that you do.
Deuteronomy 14:28-29 (RSV)

If a member of your community, whether a Hebrew man or a Hebrew woman, is


sold to you and works for you six years, in the seventh year you shall set that
person free. And when you send a male slave out from you a free person, you shall
not send him out empty-handed. Provide liberally out of your flock, your thresh-
ing floor, and your wine press, thus giving to him some of the bounty with which
YHWH your God has blessed you. Remember that you were a slave in the land of
Egypt, and YHWH your God redeemed you; for this reason I lay this command
upon you. . . . You shall do the same with regard to your female slave.
Deuteronomy 15:12-15, 17b

Strangely little attention has been given to the subject of biblical social
welfare laws.1 Modern ethicists and social ethicists have proposed turning

1
Otherwise excellent biblical studies typically contain no discussion of social welfare laws
as such. See, e.g., Hans Jochen Boecker, Law and the Administration of Justice in the Old Tes-
tament and Ancient East (Augsburg Press, 1988); Calum Carmichael, The Spirit of Biblical
Law (U Ga Press, 1996); James L. Crenshaw and John T. Willis, eds., Essays in Old Testa-
ment Ethics (KTAV, 1974); Dale Patrick, Old Testament Law ( John Knox Press, 1985); John
J. Pilch and Bruce J. Malina, Biblical Social Values and their Meaning (Hendrickson, 1993);
Raymond Westbrook, “Biblical Law,” in N. S. Hecht et al., eds., An Introduction to the History
and Sources of Jewish Law (Oxford: Clarendon Press, 1996), pp. 1–17; and Moshe Weinfeld,
Social Justice in Ancient Israel and in the Ancient Near East (Magnes Press/Fortress Press,
1995).
But see Craig L. Blumberg, Neither Poverty Nor Riches: A Biblical Theology of Material
Possessions (Eerdman’s, 1999), pp. 39–50 (on related biblical law but not specifically on
welfare); Donald E. Gowan, “Wealth and Poverty in the Old Testament: The Case of the
Widow, the Orphan, and the Sojourner,” 41 Interpretation 341–53 (1987); Jeffries
174 Justice and Compassion in Biblical Law

primarily to prophetic rather than to legal biblical texts.2 And studies


examining connections between biblical and Jewish law generally give
little attention to this topic. It may, therefore, be somewhat surprising to
discover that biblical legal texts mandated a series of provisions which,
taken together, can reasonably be said to constitute a well-developed
social welfare system.

M. Hamilton, Social Justice and Deuteronomy: The Case of Deuteronomy 15, Society of Biblical
Literature Dissertation Series no. 136 (Scholars Press, 1992) (addressing many related
issues under the rubric of “social justice”); James Limburg, The Prophets and the Powerless
(John Knox Press, 1977), pp. 28–31; Bruce V. Malchow, Social Justice in the Hebrew Bible
(Collegeville, MN: The Liturgical Press, 1996), pp. 20–30 (interpreting law codes as
expressing concern for social justice), and Christopher J. H. Wright, Old Testament Ethics
for the People of God (InterVarsity Press, 2004), pp. 300–01 (briefly summarizing “compas-
sionate laws),” and pp. 312–14 (noting biblical laws prioritizing “needs” of the vulnerable
over “rights” of those in relatively powerful positions within the community).
2
See, e.g., William Sloane Coffin, The Heart is a Little to the Left: Essays on Public Morality ix
(U Press of New England, 1999): “Above all, I believe we need to claim the kinship of all
people, to recover the prophetic insight that we belong to one another . . .”; T. B. Maston,
Biblical Ethics 69 (Mercer Univ. Press, 1982): “There is no portion of the Old Testament
that speaks more pointedly to the needs of our own day than the prophets.” See also,
Reinhold Niebuhr’s equation of “prophetic Christianity” with social ethics in his early
book, An Interpretation of Christian Ethics (Harper & Row, 1987), e.g., pp. 61 & 62. Robert
N. Bellah’s small book, Prophetic Religion in a Democratic Society (Kalamazoo: Fetzer
Institute, 2006), devotes brief space to certain OT prophets and sayings of Jesus in the
Synoptic Gospels, but none to biblical law, other than the first of the Ten Command-
ments, “You shall have no other gods . . .” (pp. 3–4). John C. Bennett makes no reference
to either biblical law or prophets in Christian Ethics and Social Policy (Scribner’s, 1950).
Others also typically give little or no attention to biblical law in their reflections on ethics
and social ethics: e.g., Robert McAfee Brown, James M. Gustafson, Martin Luther King,
Jr., Paul Lehmann, Liston Pope, Paul Ramsey, John A. Ryan, and Roger Shinn. Joseph
Fletcher, who professed to be allergic to law of all kinds, unsurprisingly, does not draw on
biblical law in his moral reflections: Situation Ethics: The New Morality (Westminster, 1966);
Moral Responsibility: Situation Ethics at Work (Westminster, 1967). In Situation Ethics,
Fletcher asserts, “The prophetic J tradition gave way to the E-D tradition, with its precepts
and laws.” See also, id., pp. 71–75, where Fletcher dismisses the moral relevance of the
Ten Commandments as “TABLETS OF STONE.”
But see Daniel C. Maguire, The Moral Core of Judaism and Christianity (Augsburg
Fortress Press, 1993), pp. 131–44 (considering several biblical welfare texts under the
heading of “Justice”); same author, A Moral Creed for All Christians (Augsburg Fortress,
1995), especially chapter 4, “Justice Bible-Style”); National Conference of Catholic
Bishops, Economic Justice to All: Pastoral Letter on Catholic Social Teachings and the United
States Economy (United States Catholic Conference, 1986); and Stanley Carlson Thies,
Transforming American Welfare: An Evangelical Perspective on Welfare Reform, in David D.
Gushee, ed., Toward a Just and Caring Society: Christian Responses to Poverty in America
(Baker, 1999), pp. 473–98.
Several studies of welfare issues have appeared in recent years, but these typically
do not consider or even mention biblical welfare legislation. See, e.g., Elizabeth M.
Bounds, ed., Welfare Policy: Feminist Critiques (Pilgrim Press, 1999); Joel F. Handler,
The Poverty of Welfare Reform (Yale Univ. Press, 1995); David K. Shipler, The Working Poor:
Invisible in America (Vintage Books, 2004, 2005); Steven M. Teles, Whose Welfare? AFDC
and Elite Politics (U Kans Press, 1998).
Biblical Social Welfare Legislation 175

Arguably, much of biblical law represents legislative visions of condi-


tions that would constitute a good society.3 Particular laws set forth spe-
cific ways such society was to be actualized. In biblical times, of course,
there was no Social Security Administration, and there were no provisions
for food stamps, Aid for Families with Dependent Children, or other com-
monplace, modern public assistance programs. However, many biblical
laws prohibited discrimination against disadvantaged persons. And
various affirmative social welfare arrangements were established by law.
Laws prohibiting unjust, invidious, or oppressive treatment of certain
groups will be considered first. The balance of this chapter will describe
the affirmative assistance provisions or programs set out in biblical laws.

A. Protections against Injustice and Mistreatment

Several biblical laws require that officials and others involved in legal
proceedings provide for the fair and equal protection of persons within
the community. Related laws caution against perverting justice due to
certain groups. Some specifically condemn certain types of oppressive or
invidious treatment of disadvantaged and disabled persons.

1. Full, Fair, and Equal Justice in the Courts


Many biblical laws insist that those responsible for the administration of
justice see to it that the relatively powerless or vulnerable groups within
the community be accorded the same rights and protections as others.4
Such concerns continue to surface in contemporary jurisprudence for
instance, in a recent article by George Fletcher.5

3
See Joseph Blenkinsopp, “Biblical Law and Hermeneutics: A Reply to Professor Gaffney,”
4 J. of L. & Relig. 97, 100 (1986) (Legal matters in the Hebrew Bible are to be understood
as “the inculcation of a societal ideal to which the community is directed through
the laws”).
4
Such classes of persons were vulnerable not only economically, but also because they may
not have been permitted to represent themselves in legal proceedings. See Rasor, “Biblical
Roots” (cited in Introduction to Part III, note 14), p. 164, n. 39. But see below note 86 and
also Gowan, “Wealth and Poverty” (cited in note 1 above), p. 345, reviewing texts indicating
that widows had legal standing in some situations. As to biblical emphasis on justice in the
courts, see generally, John T. Noonan, Jr., Bribes (Macmillan, 1984), pp. 14–30.
5
See George P. Fletcher, “In God’s Image: the Religious Imperative of Equality under
Law,” 99 Colum L. Rev 1608, 1615 (1999):
The text of Genesis [1:26-27] is, in fact, the beginning of the thread favoring equality
that binds the earliest legends of creation together with Lincoln’s reformulation of
176 Justice and Compassion in Biblical Law

Categories of persons identified in biblical laws as protected classes


include the poor, sojourners, orphans and widows. Lacking indepen-
dent means of support, sojourners, orphans and widows necessarily
would often be poor. The ceremonial invocation of blessings and curses
immediately following the Deuteronomic Code names these three
particular categories of persons.

Cursed be he who perverts the justice due to the sojourner, the father-
less, and the widow.” And all the people shall say “Amen. (Deut. 27:19)6

the Declaration of Independence. The foundations of equality emerge in the book of


Genesis; they are restated in a secular idiom in Kant; and they come into modern
political discourse as an unquestioned assumption of the liberal pursuit of justice. My
view is that, if we look carefully at the text of Genesis, we will find the roots of those
truths that today we hold to be “self-evident.”
Fletcher proposes that U.S. courts eschew “scrutiny and interest balancing in cases
that challenge caste-based inequalities,” urging that “the basis of equalitarian jurispru-
dence should not be the state and its interests but, rather, the intrinsic equality of all
persons created in God’s image.” Id., pp. 1628–29. Fletcher might also have cited a legal
text, Num. 15:15-16, which derives from the same Priestly or P circles as the first creation
story’s image of God language. Numbers 15:15-16 is quoted below, text accompanying
note 30.
See also Jack B. Weinstein, “Adjudicative Justice in a Diverse Mass Society,” 8 J L & Pol’y
385 (2000) (calling for equalizing the adversary and adjudicatory systems in the interest
of the poor or less privileged). Weinstein mistakenly states that Fletcher’s “argument [is]
based on language in Genesis 2:18-23,” and reject’s Fletcher’s proposal because: “In view
of the divisiveness of religions and the tendency of adherents to want to dominate or
proselytize others, the First Amendment rather than the story of creation seems a better
guarantor of equality in our civil society.” Id., pp. 412–13, n. 65. Yet Weinstein declares
that the “thesis” of his own article is “rooted in Learned Hand’s command, ‘Thou shalt
not ration justice,’ and in the Bible’s, nor shall ‘you distinguish between the rich and
poor or pervert the justice due to your poor in his suit.’” (Exod. 23:6). Id., p. 388. Wein-
stein cites Deut. 16:19 as further authority (id., p. 406, n. 53), and concludes, quoting the
“Golden Rule,” which he attributes jointly to Hillel and Jesus.
6
See also Deut. 10:18 (RSV): “[YWHW] executes justice for the fatherless and the widow,
and loves the sojourner, giving him food and clothing.” These concerns come to expres-
sion in the prohibitions at Deut. 24:17-19 (RSV): “You shall not pervert the justice due to
the sojourner or to the fatherless, or take a widows garment in pledge; but you shall
remember that you were a slave in Egypt and YHWH your God redeemed you from
there; therefore I command you to do this.” As to Deut. 24:17-18, see generally,
Hamilton, Social Justice (cited in note 1), pp. 130–33. The prophet Zechariah reiterated
such concerns: “Thus says YHWH of hosts, Render true judgments, show kindness and
mercy each to his brother, do not oppress the widow, the fatherless, the sojourner, or the
poor . . .” (Zech. 7:9-10 RSV). Similarly, Jer. 7:5-6. See also Mal. 3:5 (RSV): “Then I will
draw near to you for judgment; I will be a swift witness against . . . those who oppress the
hireling in his wages, the widow and the orphan, against those who thrust aside the
sojourner, and do not fear me, says YHWH of hosts.” And see also Ps. 94:1-7 (condemn-
ing those who kill the widow, sojourner, and the fatherless), and Ps. 146:5-9 (YHWH gives
the oppressed justice, the hungry food, sets prisoners free, opens the eyes of the blind,
and cares for the sojourner, widow, and fatherless).
Biblical Social Welfare Legislation 177

Clearly the interests of such persons were considered important to


YHWH and to the community as a matter of justice, not only of charity.
The Covenant Code warns against the failure to treat the poor fairly or
accord them full justice: “You shall not pervert the justice due to your
poor in his suit” (Exod. 23:6 RSV). Similar concern is to be found in
Proverbs:

Do not rob the poor because he is poor,


Or crush the afflicted at the gate;7
For YHWH will plead their cause,
And despoil of life those who despoil them. (Prov. 22:22-23
RSV)8

Such texts imply that the poor were entitled to fair treatment as a matter
of law, and that the poor therefore were entitled to certain rights.9 Equal
justice for the poor, however, precludes partiality or preferential treat-
ment by courts or judges: “Nor shall you be partial to a poor man in his
suit” (Exod. 23:3 RSV).10

7
See also Amos 5:12: “For I know how many are your transgressions . . . you who . . . push
aside the needy in the gate.” “At the gate” refers to the local court. See Boecker,
Administration of Justice (cited in note 1), p. 31.
8
Some remembered echo of the last part of this verse may have prompted Karl Marx to
formulate his famous doctrine that in due course, history, unfolding mechanistically
(Marx’s surrogate for divine justice) would bring about the “expropriation of the
expropriators.”
9
See Prov. 29:7 (RSV) (“A righteous man knows the rights of the poor; a wicked man does
not understand such knowledge”); and Prov. 31:9 (RSV) (“Open your mouth, judge
righteously, maintain the rights of the poor and needy”). And see Job 29:12, 16-17. As to
the concept of rights in biblical law, see Susan A. Wolfson, “Modern Liberal Rights The-
ory and Jewish Law,” 9 J. of L. & Relig. 399 (1992). Wolfson notes that biblical (and
Jewish) law emphasize obligations more than rights, but observes that rights concepts
are also present, though not in the sense characteristic of 18th century and modern
radical individualism. “Modern liberal theory almost never concerns itself with duties;
nevertheless, it implicitly takes account of them. The situation in Jewish law may be a
similar one. That is, that Jewish law is somehow implicitly concerned with rights. . . .
[ Jewish] law begins with individuals already placed in their social context; the law itself
places them in this context. The picture is not of autonomous individuals standing alone
in their ‘moral zone,’ as for example Nozickian citizens do . . .” Id., p. 414. And see
generally Haim Hermann Cohn, Human Rights in Jewish Law (KTAV, 1984).
10
See also Lev. 19:15: “You shall do no injustice in judgment; you shall not be partial to the
poor or defer to the great, but in righteousness shall you judge your neighbor.” Sirach
35:12-13 characterizes “the Most High” as an impartial judge: “He will not show partiality
in the case of a poor man, and he will listen to the prayer of one who is wronged” (RSV).
The implication is that Israelite or Jewish judges should do likewise. On equal protec-
tion in biblical law, see generally Cohn, Human Rights (cited above in note 9),
pp. 189–96. See also Gershon Brin, Studies in Biblical Law: From the Hebrew Bible to the Dead
178 Justice and Compassion in Biblical Law

These laws apply to the treatment of protected classes of persons at


trial or before the courts.11 Several other laws condemn oppression of
such persons by private actors. A number of these laws provide special
privileges or immunities for those who are poor or in special need.

2. Laws against Oppression or Mistreatment of


Protected Classes
As has been seen, biblical law required that courts protect the rights or
interests of all persons equally. The underlying normative foundation for
such equal treatment is the faith-understanding that all persons are val-
ued positively and equally by YHWH.12 In addition, private persons were
not to take advantage of certain protected classes. These classes included
the poor, aliens or sojourners, widows and orphans, servants, and also
the disabled or handicapped, notably, those who are blind or deaf. Vari-
ous other biblical texts additionally urged that private persons were obli-
gated to undertake the defense of such persons in court.13 Here, too, the
equal and positive value of persons before YHWH is the basis for such laws.

a. The poor
Persons who lend to the poor should refrain from charging them inter-
est (Exod. 22:25). Leviticus 25:35-38 adds that Israelites must sell food to
the poor at cost, rather than seek to profit from such sales.14 Such laws
may have been the basis for Amos’ strictures against those who “trample
upon the poor and take from them exactions of wheat” (Amos 5:
11 RSV).15 Similarly, if a poor man’s garment is taken in pledge (or as

Sea Scrolls, Journal for the Study of the Old Testament, Supp. no. 176, 88–89 ( JSOT Press,
1994) (discussing Exod. 23:3 and 23:6). And see also Chapter Four of this book.
11
See also Ps. 82:3-4, which may have been addressed to members of the divine or heavenly
council, but also implies what human courts should do: “Give justice to the weak and the
fatherless; maintain the right of the afflicted and the destitute. Rescue the weak and the
needy; deliver them from the hand of the wicked” (RSV).
12
See Section A.1 of this chapter.
13
See below, note 35 and accompanying text.
14
Neither of these laws precluded lending at interest to fellow Israelites who were not
poor.
15
See also Ezek. 22:12. Compare Deut. 23:19-20 (RSV), which prohibits lending money at
interest to “your brother” (fellow Israelite), with no mention of economic status, but
permits lending at interest to a foreigner. See Reuven Yaron, “Biblical Law: Prolegom-
ena,” in Bernard S. Jackson, ed., Jewish Law in Legal History, Supplement to The Jewish Law
Annual 27, 29 (E. J. Brill, 1980): “It is not difficult to see that all these provisions share a
common background: they all concern loans granted on compassionate grounds . . .,
Biblical Social Welfare Legislation 179

collateral) it should be returned to him before sundown, “for that is his


only covering, it is his mantle for his body; in what else is he to sleep?
And if he cries to me, I will hear, for I am compassionate” (Exod. 22:
26-27 RSV).16 The same rationale is implicit in Deut. 24:17: “You shall not
take a widow’s garment in pledge.”17 Again we learn from Amos that not
all Israelites complied with the law. Contending against those who were
practicing bogus piety, Amos charged, “They lay themselves down beside
every altar on garments taken in pledge” (Amos 2:8).
Debt collection that would result in poverty is also prohibited: “No man
shall take a mill or an upper millstone in pledge, for he would be
taking a life in pledge” (Deut. 24:6 RSV). Loss of income or employment
(“livelihood”) can put a person’s life at risk. Here again, the well-being of
persons is considered more important than any putative “property
rights.”18 Concern for the welfare of persons—not simply for abstract
fairness—likewise undoubtedly informs biblical laws intended to limit
corrupt commercial practices, notably use of false weights and measures.19
We might call these consumer protection laws. Such laws would have
been especially important for those living on the economic margins who
would be most vulnerable to fraudulent transactions.
The poor also were to enjoy another type of exemption or privilege.
Certain provisions in the Priestly Code allowed the poor to offer
less expensive sacrifices in order to obtain divine favor: Leviticus 5:7-13

intended to help one’s fellow who has fallen upon bad times. In circumstances such as
these the making of a profit out of one’s fellow’s predicament is viewed as repugnant.”
And see Brin, Studies (cited in note 10), p. 86.
16
That such a person is poor can be inferred from the fact that he owns only the one
“garment” or coat. Deuteronomy 24:12-13 (RSV) explicitly refers to a poor man’s
garment held in pledge. See generally, Brin, Studies (cited in note 10), pp. 82–85.
On biblical conceptions of compassion, see generally, Pilch and Malina, Biblical Social
Values (cited in note 1), pp. 28–30.
17
See Rasor, “Biblical Roots” (cited in Introduction to Part III, note 14), p. 190: “In modern
law, the moral basis is obscured by the prevailing tendency to talk in purely legalistic and
economic terms. . . . The fundamental unifying principle of both the Biblical lending
rules and modern consumer credit law is the desire to ensure that the most vulnerable
members of society are treated fairly and to protect them from overreaching and oppres-
sion. . . . [T]his unifying principle is to be understood as a moral norm, and not simply
as an economic or legal rule.”
18
See also Deut. 23:24-25, providing that Israelites who entered their neighbors’ vineyards
and grain fields might eat what they wished. This arrangement would have been
especially beneficial to the poor, but in its terms, applied to all classes of persons. This
privilege is illustrated in the NT: see Mt. 12:1 = Mk 2:23 = Lk. 6:1.
19
Deut. 25:13-16; Lev. 19:35-36. See Mic. 6:11 (RSV): “Shall I acquit the man with wicked
scales and with a bag of deceitful weights?” See also Amos 8:4-6. And see Prov. 16:11
and 20:23.
180 Justice and Compassion in Biblical Law

(guilt offerings), and Leviticus 14:21-32 (offerings for curing leprosy).20


These arrangements could be seen as precedent for later graduated
income taxes or Medicare fees.21 Such texts also could be seen as an
arguable biblical basis for modern liberation theology’s concept of a
“preferential option for the poor.”22
Many of these laws obviously were intended to protect the welfare of
those who were poor. The prophet Amos repeatedly proclaimed YHWH’s
impending judgment against those who, instead of according such
protection, oppressed or exploited the poor.23 Isaiah and Jeremiah like-
wise condemned those who abused the poor.24 And several proverbs
anticipate that it will not go well for those who oppress the poor.25 Instead
of oppressing them, YHWH’s people should be defending the rights of
the needy ( Jer. 5:28).

b. Sojourners or resident aliens


Biblical laws are especially solicitous as to sojourners or resident aliens.
Some may have come as refugees, others as migrant workers or as perma-
nent immigrants.26 Evidently Israel was open to such aliens in biblical

20
As to these and a few other texts reducing or eliminating obligations of those unable to
afford compliance with certain religious or cultic laws, see Brin, Studies (cited in note
10), pp. 74–79. But see Exod. 30:11-15: Every Israelite, whether rich or poor, was to pay
the same half shekel census tax (or atonement fee), in effect, a flat tax.
21
A wisdom saying in the book of Tobit applies the principle of proportionate giving to
aiding the poor: “Give alms from your possessions to all who live uprightly, and do not
let your eye begrudge the gift when you make it. . . . If you have many possessions, make
your gift from them in proportion; if few, do not be afraid to give according to the little
you have.” Tob. 4:7-8 (RSV). Here we see that a limiting, moral test has been added: only
the righteous poor are to be aided. Compare 1 Cor. 16:1-2. As to other “leniencies in the
law” as to the poor, see Brin, Studies (cited in note 10), pp. 74–89. As to contemporary
discussion of biblical texts and concepts relating to allocation of tax burdens, see Adam
S. Chodorow, “Biblical Tax Systems and the Case for Progressive Taxation,” 23 J. of L. &
Relig. 51–96 (2007–2008).
22
But see biblical texts cited above, note 10 and accompanying text, mandating that courts
or judges were to be impartial in administering justice to the poor.
23
Amos 2:6-7; 4:1; 5:11; 8:4, 6.
24
Isa. 3:13-15; 10:1-2; Jer. 2:34.
25
Prov. 14:31 (RSV) (“He who insults a poor man insults his Maker”); 22:16 (RSV) (“He
who oppresses the poor to increase his own wealth, or gives to the rich, will only come
to want”). See also Prov. 22:22-23.
26
See Cohn, Human Rights (cited above in note 9), p. 77: “It is now generally assumed that
most of the ‘strangers,’ that is migrants, who, in antiquity, left their own lands and went
into foreign parts were refugees in the modern sense—if not from individual persecution
and oppression, at any rate from famine (cf. Gen. 12:10; Ruth 1:1; 2 Kgs 8:1) or some
other disaster; and from the biblical prescriptions relating to them it is abundantly clear
Biblical Social Welfare Legislation 181

times. These persons were foreigners who were living either permanently
or temporarily in Israel. Not only men, but also women and children
were included in this class of persons. YHWH, himself, “loves the
sojourner” (Deut. 10:18); therefore Israelites should do so as well
(Deut. 10:19; Lev. 19:34). The Israelites, themselves, had been sojourn-
ers in Egypt. Therefore they should have compassion on sojourners or
aliens dwelling in their own midst. When strangers sojourn with them,
Israelites should do them no wrong (Lev. 19:33). Likewise, the Deutero-
nomic Code cautions: “You shall not deprive a resident alien . . . of jus-
tice” (Deut. 24:17). The Covenant Code earlier had also warned against
wronging or oppressing strangers: “You shall not wrong a stranger or
oppress him, for you were strangers in the land of Egypt” (Exod. 22:21
RSV). “You shall not oppress a stranger; you know the heart of a stranger,
for you were strangers in the land of Egypt” (Exod. 23:9 RSV).27 Perhaps
for the same kind of reason, a Deuteronomic law forbids oppressing
escaped slaves (Deut. 23:15-16). The Israelites had escaped from slavery
in Egypt: therefore they should have compassion on others who had won
their freedom. Sojourners must not be required to work on the sabbath.
Rather, they were to rest, so that they (along with others, including the
farm animals28) might “be refreshed” (Exod. 23:12).29

For the assembly, there shall be one statute for you and for the stranger
who sojourns with you, a perpetual statute throughout your genera-
tions; as you are, so shall the sojourner be before YHWH. One law and
one ordinance shall be for you and for the stranger who sojourns with
you. (Num. 15:15-16 RSV)30

that they were among the poor and needy who had to be given shelter, food, and raiment
(Lev. 19:10; 23:22; Deut. 10:18, etc.).” Biblical law did not bar economic refugees.
27
On such “motive clauses,” see generally Hamilton, Social Justice (cited above in note 1),
pp. 85–91; Harry P. Nasuti, “Identity, Identification, and Imitation: the Narrative Herme-
neutics of Biblical Law,” 4 J. of L. & Relig. 9 (1986); and Rifat Sonsino, Motive Clauses in
Hebrew Law: Biblical Forms and Near Eastern Parallels, SBL Dissertation Series, no. 45
(Scholars Press, 1980).
28
See Richard H. Hiers, “Reverence for Life and Environmental Ethics in Biblical Law and
Covenant,” 13 J. of L. & Relig. 127, 160–62 (1996–98).
29
See also Exod. 20:8-10; Deut. 5:12-14. Sojourners were not to work on the Day of
Atonement, either. Lev. 16:29-30.
30
See also Num. 15:29-30. Impartiality in judging between Israelite and alien evidently was
also called for in Deut. 1:16. Notable exceptions to the principle of equal protection for
aliens were the laws allowing Israelites to foreclose and exact interest on loans to aliens.
Deut. 15:3; 23:20. Other exceptions are indicated at Exod. 21:8 (foreigners not to
partake of Passover), and Deut. 17:15 (foreigner may not become king). See Cohn,
Human Rights (cited in note 9), p. 161: “These explicit exceptions seem to indicate that
182 Justice and Compassion in Biblical Law

Earlier, the Holiness Code had put the point even more succinctly: “You
shall have one law for the sojourner and for the native; for I am YHWH
your God” (Lev. 24:22 RSV). This insistence on “one law” for both Israelites
and foreigners or aliens accords with the larger biblical theme that YHWH
created, cares for and generally intends the welfare of all humankind.31

c. Widows and orphans


Biblical law also condemned oppressing widows32 and orphans:

You shall not afflict any widow or orphan. If you do afflict them, and
they cry to me, I will surely hear their cry; and my wrath will burn,
and I will kill you with the sword, and your wives shall become widows
and your children fatherless. (Exod. 22:22-24 RSV)33

Here YHWH, himself, would enforce this law. Deuteronomy 24:17 adds:
“You shall not deprive . . . an orphan of justice.” Such laws also would
have provided guidance to individual Israelites concerning right or righ-
teous conduct, and to judges or courts in resolving disputes. The prophet
Isaiah, condemned those who preyed upon widows and orphans,34 and
called on fellow Israelites to correct such oppression:

Cease to do evil, learn to do good;


Seek justice, correct oppression;
defend the fatherless, plead for the widow. (Isa. 1:16-17 RSV)35

unless expressly otherwise provided, all laws applying to Israelites apply also to
foreigners.”
31
See, e.g., Gen. 1:1–10:32; Ps. 8 & 145; Isa. 49:6; and Jon. chs. 1–4.
32
It has been suggested that in biblical times, a woman whose husband had died would
not have been considered a widow if she returned to her parents’ house. True “widows”
lacked family ties and generally had no share in family property, according to Boecker,
Administration of Justice (cited in note 1), p. 19. But see above, Chapter Two, section B.1.c.
At all events, biblical widows, like orphans, typically lived on the economic margins of
society. There is no evidence, however, that relatives ever (much less “often”) sold widows
into slavery, contra Silvia Schroer, “Toward a Feminist Reconstruction of the History of
Israel,” in Luise Schottroff et al., Feminist Interpretation: The Bible in Women’s Perspective
(Fortress Press, 1998), p. 123.
33
According to Proverbs 15:25, YHWH also looks out for the interests of widows in more
positive terms: “YHWH tears down the house of the proud, but maintains the widow’s
boundaries.” See also Sir. 35:14 (RSV): “He will not ignore the supplication of the father-
less, nor the widow when she pours out her story.”
34
Isa. 10:1-2; see also Jer. 7:5-7 and Mal. 3:5.
35
See also Isa. 1:23 (RSV), condemning those who failed to “defend the fatherless” or take
up “the widow’s cause,” and Jer. 5:28 (RSV): “. . . they judge not with justice the cause of
the fatherless, to make it prosper, and they do not defend the rights of the needy.”
Biblical Social Welfare Legislation 183

Widows’ clothing, like that of the poor, was not to be taken “in pledge”
or as security (Deut. 24:17b). Perhaps, as in the case of the poor, such
garments were to be returned by sundown;36 or perhaps it was under-
stood that widow’s garments were not to be taken in pledge at all.
Orphans’ inherited property also would have been subject to exploita-
tion by the unscrupulous. Thus a Proverbs sage cautions:

Do not remove an ancient landmark


or enter the fields of the fatherless;
for their redeemer is strong;
he will plead their cause against you. (Prov. 23:10-11)

Here, “their redeemer” probably refers to their go’el, a near or nearest


kinsman, who would take matters to court if necessary, to defend the
orphan’s title to the property.

d. Labor relations: hired servants


Servants or hired workers also were to be protected from exploitation.
Here we have a glimpse into biblical labor relations law. One law per-
tained to the work-week; the other to wages. The sabbath was to be a day
of rest not only for a family, but also for its servants.37 Householders or
others who hired servants or laborers were not to hold back their wages,
but were to pay them each day for their day’s work:

You shall not withhold the wages of poor and needy laborers, whether
other Israelites or aliens who reside in your land in one of your towns.
You shall pay them their wages daily before sunset, because they are
poor and their livelihood depends on them; otherwise they might cry
to YHWH against you, and you would incur guilt. (Deut. 24:14-15)

See also Sir. 4:9-10 (RSV), where the sage urges readers: “Deliver him who is wronged
from the hand of the wrongdoer; and do not be fainthearted in judging a case. Be like a
father to orphans, and instead of a husband to their mother . . .” Similar obligations are
implicit in Job’s account of his previous conduct: “I was a father to the poor, and
I searched out the cause of him whom I did not know. I broke the fangs of the unrigh-
teous, and made him drop his prey from his teeth.” Job 29:16-17 (RSV); see also 29:11-12
(RSV). And see Prov. 31:9 (RSV): “Open your mouth, judge righteously, maintain the
rights of the poor and needy.”
36
Exod. 22:26-27; Deut. 24:12-13.
37
Exod. 20:10; 23:12; Deut. 5:12-15. See especially Exod. 23:12 and Deut. 5:14-15. On the
sabbath law, see generally Walter Harrelson, The Ten Commandments and Human Rights
(Fortress Press, 1980), pp. 79–92.
184 Justice and Compassion in Biblical Law

You shall not oppress your neighbor or rob him. The wages of a
hired servant shall not remain with you all night until morning. (Lev.
19:13 RSV)38

Here, hired servants are regarded as neighbors and withholding their


pay was considered not only oppression, but tantamount to robbery.
Sirach 34:22 expresses similar concerns:

To take away a neighbor’s living is to commit murder;


to deprive an employee of his wages is to shed blood.39

Jeremiah even condemned a king who had failed to pay his employees or
workers: “Woe to him . . . who makes his neighbor serve him for nothing,
and does not give him his wages” (Jer. 22:13 RSV).

e. Persons with disabilities


Disabled or handicapped persons were to be treated with respect. The
execration formula in Deuteronomy 27 includes the imprecation:
“‘Cursed be anyone who misleads a blind man on the road,’ and the
people shall say, ‘Amen!’” (Deut. 27:18). The Holiness Code adds two
other prohibitions against teasing or tormenting the disabled: “You shall
not curse the deaf or put a stumbling block before the blind, but you shall
fear your God: I am YHWH” (Lev. 19:14 RSV). Job provides an example
of such affirmative conduct with respect to disabled persons: “I was eyes
to the blind, and feet to the lame” (Job 29:15).40 In modern terms, not
putting a stumbling block before the blind, or providing feet for the
lame, might be construed to include providing handicap access and elim-
inating artificial barriers to employment for persons with disabilities. Bib-
lical laws not only prohibit mistreating various classes or categories of
vulnerable groups of persons. Several laws also require Israelites and their
descendants to act affirmatively on behalf of such persons.

38
Such laws may have been the basis for one of Tobit’s admonitions to his son: “Do not
hold over until the next day the wages of any man who works for you, but pay him at
once.” (Tob. 4:14 RSV). See also Mal. 3:5: “Then I [YHWH] will draw near to you for
judgment . . . against those who oppress hired workers in their wages . . .” Here the
offense may be either underpayment or withholding wages.
39
Sirach 7:20-21 not only cautions against abusing faithful and devoted servants or employ-
ees; the writer urges employers to love worthy servants. See also Sir. 33:30-31. Job, a model
of biblical righteousness, asserts that he never “rejected the cause of [his] manservant or
. . . maidservant when they brought a complaint against [him].” Job 31:13 (RSV).
40
See also Prov. 31:8 (RSV): “Open your mouth for the dumb . . .” Prophetic texts also show
solicitude for the disabled: YHWH himself would care for or heal them. See Micah 4:6-7
(“the lame”); Isa. 35:5-6 (the blind, deaf and lame). See also in the NT, Lk. 14:12-14:
“[W]hen you give a banquet, invite the poor, the crippled, the lame, and the blind . . .”
Biblical Social Welfare Legislation 185

B. Laws Calling for Affirmative Actions by


Private Persons

Social ethics or responsible life in community involves not only refraining


from harmful conduct, but also acting affirmatively on behalf of others.
Those who had property or other forms of wealth in biblical times were
obliged to consider the needs of other persons in their communities, not
just their own welfare. “Property rights,” is an expression nowhere to be
found in the Bible.41 Ultimately, the land and everything else in the world
belonged to YHWH, not to Israel or any person or group of persons.42
Thus property was to be used in accordance with YHWH’s concerns and
purposes, which were understood to have been set out in the law.
Biblical laws call for several types of affirmative conduct on behalf of
various classes or persons.43 Parents are to be honored;44 numerous

41
See Millar Burrows, An Outline of Biblical Theology (Westminster Press, 1946), p. 302: “The
use of land was subject to the welfare of the community, including provision for the
poor, for widows, and for resident aliens (who had no allotment in Israel). Their support
was to be secured by the laws of gleaning and the like, also the sabbatical year, and the
release of debts.”
42
See e.g., Exod. 9:29b; 19:5; Deut. 10:14; and Pss. 24:1-2 and 50:10-12.
43
This concern may be especially characteristic of laws found in the Deuteronomic Code
(D) and also the Deuteronomic laws set down in connection with the Deuteronomic
Reform (RDC). See Gaffney, “Biblical Religion” (cited in Introduction to Part III, note
16), pp. 180–81: “[Deuteronomy] . . . is . . . a powerful program for social reform includ-
ing care for disadvantaged classes . . .” See also Boecker, Administration of Justice (cited in
note 1), pp. 181–84 on compassionate or humanitarian concerns in Deuteronomic law.
And see Ze’ev W. Falk, Religious Law and Ethics 70–72 (Mesharim, 1991) (on the inter-
penetration of law and ethics in Deuteronomy). And also see Jeffrey H. Tigay, xviii,
The JPS Commentary: Deuteronomy XIX-XXII (Jewish Publication Society, 5756/1996):
The Torah’s humanitarianism is most fully developed in Deuteronomy’s legislation
and exhortations on behalf of the poor and disadvantaged: debtors, indentured
servants, escaped slaves, resident aliens, orphans, widows and Levites, as well as
animals and even convicted criminals.
Strangely, many commentaries on Deuteronomy do not recognize the compassionate
character of Deuteronomic legislation.
Such concern can also be found in the other major biblical law codes as well: the
Covenant, Holiness, and Priestly Codes. As to the Covenant Code, see Elliot N. Dorff
and Arthur Rosett, A Living Tree: The Roots and Growth of Jewish Law 28 (SUNY Press,
1988): “Toward the end of [Exodus] 22 the tone shifts again. Now the fair and compas-
sionate treatment of strangers, widows, orphans, and debtors is no longer based solely
on the fear of Divine anger. Instead, the major appeal is to the moral quality of compas-
sion, the memory of our own suffering that leads us not to cause others to suffer.” See
also Paul D. Hanson, The People Called: The Growth of Community in the Bible (Harper &
Row, 1981), pp. 44–45 (on the quality of “compassionate justice” implicit in Exod. 20:
22-26 and 22:17–23:19).
44
Biblical law does not specifically mandate care for the aged. The commandment to
honor father and mother (Exod. 20:12; Deut. 5:16), of course, includes aging and aged
parents. Again, wisdom tradition suggests what may have been common law or accepted
186 Justice and Compassion in Biblical Law

mandated arrangements provided food for those in need of assistance;


various laws called for other ways to assist the poor; and a number of laws
concerned humane or compassionate treatment of slaves and inden-
tured servants.

1. Food for the Poor


Several types of biblical laws call on members of the community to
provide food for those who need it.45 To begin with, landowners must
allow the poor to glean or gather food for themselves and their families
in privately owned fields, vineyards, and orchards. Such persons also
were to be invited to join in various festivals or celebrations and partake
of the food prepared for these occasions. Certain other laws also called
for making food available to those who needed it. In modern times, these
laws could be categorized aptly as expressions of and vehicles for distrib-
utive justice or as social welfare legislation.

a. Gleaning rights or privileges


Laws requiring property owners to set aside portions of their harvests for
persons in need are included in both the Deuteronomic and Holiness
Codes. The Deuteronomic law specifically names sojourners, orphans,
and widows as the intended beneficiaries or welfare recipients.

practice. See Sir. 3:1-16, a series of admonitions as to honoring parents. For instance,
Sir. 3:12 (RSV):
O son, help your father in his old age
and do not grieve him as long as he lives;
even if he is lacking in understanding, show forbearance;
in all your strength do not despise him.
See also Prov. 23:22-25; Sir. 7:27-28; 8:6.
45
Wisdom writings express similar concern. See, e.g., Prov. 22:9 (RSV): “He who has a
bountiful eye will be blessed, for he shares his bread with the poor.” And see Tob. 1:17;
4:16 (RSV) (“bread to the hungry” and “clothing to the naked”). Various NT texts like-
wise call for feeding the hungry. See, e.g., Lk. 14:13 (RSV) (“But when you give a feast,
invite the poor, the maimed, the lame, the blind . . .”); Lk. 16:19-31 (RSV) (the Parable
of the Rich Man and Lazarus “who desired to be fed with what fell from the rich man’s
table”); Mt. 25:34-45; and 1 Jn 3:17.
Likewise, biblical prophets affirmed the obligations of those with property as to the
hungry. See Isa. 58:7, 10; Ezek. 18:7, 16; see also Job 22:7; 31:16-17. Weinfeld discusses
these and other texts regarding support for the poor and needy, but strangely neglects
relevant biblical law. See Weinfeld, Social Justice (cited above, note 1), pp. 215–39.
Biblical Social Welfare Legislation 187

When you reap your harvest in your field, and have forgotten a sheaf
. . . you shall not go back to get it; it shall be for the sojourner, the
fatherless, and the widow; that YHWH your God may bless you in all
the work of your hands. When you beat your olive trees, you shall not
go over the boughs again; it shall be for the sojourner, the fatherless,
and the widow. When you gather the grapes of your vineyard, you shall
not glean it afterward; it shall be for the sojourner, the fatherless, and
the widow. You shall remember that you were a slave in the land of
Egypt; therefore I command you to do this. (Deut. 24:19-22 RSV)

Here, again, the Israelites’ experience of slavery in Egypt is invoked as a


basis for their having compassion on others who later suffered privation.
Persons granted gleaning rights could thereby obtain certain basic necess-
ities during harvest times: grain, olives, and grapes.46
Somewhat abbreviated versions of the gleaning law appear in Lev. 19:
9-10 and 23:22. In both of these H texts, the named welfare recipients
are “the poor” and “the sojourner” or “stranger.” The category “poor”
probably was intended to encompass not only needy orphans and
widows, but also all others who lacked the necessary means of support.
Neither of the H laws mentions olive orchards. Leviticus 19:10, like Deut.
24:19-22, also applies to grape harvests. Leviticus 23:22 refers broadly to
“the harvest of your land,” and therefore may have been meant to include
all kinds of harvests: from fields, orchards, and vineyards alike. The
Deuteronomic version suggests, but does not expressly say that the desig-
nated crops were to be left in the fields, orchards, and vineyards, in order
to be gathered by “the sojourner,47 the fatherless, and the widow” (RSV).
However, the H versions explicitly state: “You shall leave them for the poor
and for the stranger” (RSV). As with many of the requirements set out in
the Holiness Code, the reason given for doing what is called for is
YHWH’s identity and, implicitly, his character and concerns: “I am
YHWH your God” (Lev. 19:10; 23:22). This expression not only invoked

46
Since the privilege of gleaning was established by law, it could be considered also a
“right” or entitlement. See above, note 9.
47
Another Deuteronomic law, possibly deriving from the Reform legislation, provides an
additional benefit for sojourners: “You shall not eat anything that dies of itself; you may
give it to the alien who is within your towns, that he may eat it, or you may sell it to a for-
eigner; for you are a people holy to YHWH your God” (Deut. 14:21 RSV). Primary
concern here is to prohibit Israelites from eating such food, and perhaps only inciden-
tally to provide for sojourners.
188 Justice and Compassion in Biblical Law

divine authority for so acting, but also implies that YHWH’s people
should be righteous and compassionate, like YHWH himself.48
The story of Ruth illustrates the operation of such laws. Ruth, herself,
was a stranger or sojourner from the land of Moab. Moreover, she was a
widow.49 She gleans in Boaz’s fields during the barley and wheat harvests
(Ruth 2:1-23). Apparently she brought home what she had gleaned, as well
as what Boaz gave her, for her mother-in-law’s use as well as her own. None
of the gleaning laws limits the quantities that gleaners might harvest.
Presumably some of the food people gleaned during harvest seasons could
be set aside and stored for use throughout the rest of the year.
Gleaning, alone, however, probably would not have met all food needs
of the poor. Gleaning arrangements, in a way, were like modern “work-
fare.”50 But not all would have been able to “work” by gleaning fields,
orchards, and vineyards, for instance, young children, the aged, and
infirm. Other biblical laws required property owners to take additional
actions in order to assure that the needy would have enough food,
whether or not they were able to work.

b. Festivals, the third-year tithe, and the seventh and fi ftieth years
Biblical law provided that persons in need were to be given food from
what had been set aside or gathered for two major annual festivals. The
poor also were to benefit from at least two other periodic observances,
one of which was expressly designed to assure their continuing support.

i. The “feast of weeks” and the “feast of booths”


Deuteronomy 16:9-15 calls for observance of both the “feast of weeks,”
seven weeks following the first of the year’s grain harvest,51 and the seven-
day “feast of booths” or “ingathering” in the fall when grain was threshed

48
YHWH is characterized explicitly as “compassionate” in Exodus 22:27. See also Ps. 145:9
and Sir. 18:13, which emphasize YHWH’s compassion for all creation. See Chapter Two,
Sections B.1.c. and B.2.
49
Ruth may not have been completely destitute. She and Naomi, her mother-in-law, may
have inherited property from their husbands. But no one would have planted her or
Naomi’s fields while they were in Moab. Both therefore needed assistance. See above
Chapter Two, sections A.1.b, and A.2.
50
For appraisals of contemporary “workfare,” see Robert B. Stulberg et al., “Is Workfare
Working?” A Panel Discussion Sponsored by the Association of the Bar of the City of
New York, April 19, 1999, published in 8 J L & Pol’y 107–77 (1999).
51
See also Deut. 26:1-11.
Biblical Social Welfare Legislation 189

and wine pressed.52 The latter celebration evidently was a time for giving
thanks and invoking YHWH’s blessing on the whole year’s agricultural
produce and activity (Deut. 16:15). Both festivals were to be celebrated
“before YHWH,” not only by the immediate family, but also by “your
manservant and your maidservant, the Levite . . ., the sojourner, the
fatherless and the widow” (Deut. 16:14 RSV).53 The three latter classes, in
effect, constituted “the poor.”54 Providing them food at the annual fall
feast of ingathering could be seen as prototype for the latter-day “thanks-
giving basket” for the poor or for modern institutional equivalents, such
as the Salvation Army’s thanksgiving dinner. In contrast to these latter-
day, voluntary charitable arrangements, however, sharing food with the
poor at these biblical festivals was mandated by law: all were to “rejoice”
before YHWH.
These provisions reflect certain innovations introduced in connection
with the Deuteronomic Reform. Under its terms, all classes of persons
now were to celebrate these festivals at the central shrine in Jerusalem.55 It
is difficult to imagine the entire population of Israel actually packing up
and traveling to Jerusalem (or any other one place) three times a year,56
even in times of peace. Earlier versions of the law governing these festivals
required only that Israelite males appear before YHWH, and said nothing

52
See generally, Theodor H. Gaster, Festivals of the Jewish Year: A Modern Interpretation and
Guide (Sloan, 1968), pp. 59–98.
53
See generally, Edward McGlynn Gaffney, Jr., “The Interaction of Biblical
Religion with American Constitutional Law,” in James Turner Johnson, ed., The Bible in
American Law, Politics, and Political Rhetoric (Fortress Press/Scholars Press, 1985), p. 93.
Compare Deut. 12:10-19, mandating that various other sacrificial offerings presented at
the central shrine be shared with sons, daughters, male and female servants, and “the
Levite that is within your towns” (RSV). Here there is no mention of sojourners, orphans,
or widows.
54
We see a late-biblical instance of provision for the poor at the feast of weeks (or Pentecost)
in Tobit 2:1-2 (RSV): “Upon seeing the abundance of food [prepared in observance of
this feast] I said to my son, ‘Go and bring whatever poor man of our brethren you may
find who is mindful of the Lord . . .’” Here a religious test is applied as to prospective
welfare recipients.
55
Deut. 16:11, 14-15 (RSV) (“you and your son and your daughter, your manservant and
your maidservant, the Levite, the sojourner, the fatherless, and the widow who are within
your towns”). The formula, “the place which YHWH your God will choose, to make his
name dwell there” (RSV), found throughout Deuteronomy 12–19, was intended to
designate the Temple in Jerusalem. (The Temple had not yet been constructed when
YHWH was giving Moses “the law” in the wilderness between Egypt and the land of
Canaan.) As to the cultic, legal, and political innovations associated with the Deutero-
nomic Reform, see generally, Bernard M. Levinson, Deuteronomy and the Hermeneutics of
Legal Innovation (Oxford Univ. Press, 1997).
56
According to Deut. 16:1-9, the Passover, also, now was to be eaten “at the place that
YHWH your God will choose.”
190 Justice and Compassion in Biblical Law

about their doing so only at a central shrine.57 Those Levites who previously
served as priests at the numerous cult-shrines that had been closed as a
result of the Deuteronomic Reform were now deprived of their former
livelihood (Deut. 12:2-14). Such Levites, under terms of the RDC law,
were free to move to the central shrine at Jerusalem and to continue
serving as priests there (Deut. 18:6-8). But those Levites who remained
in towns and rural areas where they had lived prior to the Reform were
now at least temporarily unemployed, and consequently, often found
themselves among the ranks of the needy. Thus under the new Deutero-
nomic laws, Levites were to be provided for along with “the sojourner,
the fatherless, and the widow.” Other RDC laws make explicit provisions
for the needs of Levites.58
The feast of weeks and the feast of booths were annual festivals. In
addition there was a triennial tithe which was intended specifically for
the benefit of persons in need. The seventh and possibly the fiftieth year
celebrations also were meant to provide food for various classes of
persons in need of assistance.

ii. The third-year tithe


The third-year, or triennial tithing law is found twice in the Revised
Deuteronomic Code, but not elsewhere. Both versions indicate that the
recipients of this tithe were to enjoy its benefits at their respective local
towns without having to go so far as Jerusalem. These recipients included
Levites, sojourners, orphans, and widows:

57
See Exod. 23:14-17; 34:18-24. Prior to the Deuteronomic reform, these festivals probably
had been observed at the many local shrines scattered throughout the lands of Israel and
Judah. Deuteronomy 16:16-17 evidently embodies vestiges of such earlier law, but with-
out explaining how these festivals were to be observed only by males and at the same
time by all the others mentioned in Deut. 16:11 and 14. The provisions in H for these
three festivals do not indicate whether males only or the whole population were to par-
ticipate in them. Lev. 23:4-21, 37-41. The H law says nothing about either a central shrine,
or about including sojourners, orphans, widows, Levites or other needy persons in the
celebrations. The Holiness Code probably antedates the Deuteronomic Reform. Here as
in several other instances, the Deuteronomic law (here, probably RDC) expresses a
greater measure of compassion for those in need than appears in similar provisions
found in other biblical law codes. The PC contains elaborate requirements for conduct-
ing these and other festivals. However, PC laws say nothing about including the poor,
sojourners, orphans, or widows among those who were to partake of the offerings on
these or other occasions. See, e.g., Num. 29–30. Nor does the Passover law, found mainly
in the PC, include any provisions requiring sharing food with the poor.
58
In addition to Deut. 16:11 and 14, see also Deut. 12:12-19; 14:27, 29; and 26:11-13.
Biblical Social Welfare Legislation 191

At the end of every three years you shall bring forth all the tithe of your
produce in the same year, and lay it up within your towns; and the
Levite, because he has no portion or inheritance with you, and the
sojourner, the fatherless, and the widow, who are within your towns,
shall come and eat and be filled, that YHWH your God may bless you
in all the work of your hands that you do. (Deut. 14:28-29)

This triennial tithe would be “laid up” in each town, thereby establishing
a kind of food bank for the needy. Very likely arrangements were made
to store those types of produce that could be preserved and to distribute
them over an extended time frame, perhaps even stretching over the
entire 3-year period until the next triennial tithing.59 Thus the poor
would not be dependent wholly upon what they could glean or receive at
the two annual festivals.
The third-year tithing law, is repeated in similar terms in Deuteronomy
26:12. Here the purpose is clearly stated: produce tithed every third year
is to be given to “the Levite, the sojourner, the fatherless and the widow,
[so] that they may eat within your towns and be filled.” The following
three verses required that, as a part of the triennial observance, each
householder was to recite a ritual oath, or oral affidavit averring that he
had in fact given the full tithe as prescribed by law. The oath concludes
by invoking continued divine favor:

I have removed the sacred portion out of my house, and moreover


I have given it to the Levite, the sojourner, the fatherless, and the
widow, according to all thy commandment which thou has commanded
me; I have not transgressed any of thy commandments, neither have
I forgotten them; I have not eaten of the tithe while I was mourning,
or removed any of it while I was unclean, or offered any of it to the
dead; I have obeyed the voice of YHWH my God, I have done accord-
ing to all that thou hast commanded me. Look down from thy holy
habitation, from heaven, and bless thy people Israel and the ground
which thou hast given us, as thou didst swear to our fathers, a land
flowing with milk and honey. (Deut. 26:13-15 RSV)

59
In biblical times it evidently was possible to store grain for many years. Genesis 41
describes the 7-year grain storage program Joseph established in Egypt. See also Lev.
25:20-22, which contemplates storing one year’s crop for two additional years.
192 Justice and Compassion in Biblical Law

Here, as elsewhere in Deuteronomic tradition, it was understood that


YHWH’s future blessings were contingent upon his people’s remaining
faithful to him and keeping his commandments.

iii. The Sabbatical Year


Laws regarding a special seventh-year celebration are found in Exodus
23:10-11 and Leviticus 25:1-7.60 The Exodus law establishes a sabbatical
year of rest not only for the land, but also and particularly for the benefit
of the poor:

For six years you shall sow your land and gather in its yield; but the
seventh year you shall let it rest and lie fallow, that the poor of your
people may eat; and what they leave the wild beasts may eat. You shall
do likewise with your vineyard, and with your olive orchard. (Exod.
23:10-11 RSV)

Neither landowners, nor, it seems, their families or servants, were to


plant, reap, or gather crops this seventh year. Not only the poor, but also
wildlife were to enjoy this year’s produce. Unsown fields would not be
likely to yield the usual harvests; but some crops, especially grains, evi-
dently were expected to reseed themselves, at least to some extent. Vine-
yards and olive orchards might yield in near normal abundance. The
version of this law in Leviticus 25 is similar in substance, though it does
not mention olive orchards.61 Possibly this H law was intended to amend
the Exodus version, so that those who owned olive trees might be exempt
and thus free to harvest and keep their precious yield for themselves
every year.
The Leviticus version explicitly bars Israelites from reaping “what
grows of itself,” and from gathering grapes from their “undressed vines”
during the sabbatical year (Lev. 25:5 RSV); yet it also assures readers that
“the sabbath of the land shall provide food” for them (Lev. 25:6 RSV).
How such food would be gathered is not said. Leviticus 25:20-22 appears
to be a somewhat later attempt to address this problem. Here it is pro-
posed (or predicted) that the sixth year would yield enough produce for
3 years: the sixth, seventh, and eighth. Thus the sixth year would afford
a triple harvest, so that it would be unnecessary to sow, reap, or gather

60
See generally, Weinfeld, Social Justice (cited in note 1), pp. 152–78.
61
In its terms, Leviticus 25:1-7 applies only to fields and vineyards.
Biblical Social Welfare Legislation 193

during the seventh year. Any reduction in eighth-year yields resulting


from the fallow seventh would be offset by the remaining sixth-year’s
surplus. It is not said how this arrangement was expected to affect glean-
ing provisions and celebrations of the annual harvest festivals, or how it
would be integrated with the third-year tithe requirement.62 The Holiness
Code version does not mention “the poor” as such. But it does name as
other recipients of the seventh-year bounty the land-owner’s “male and
female slaves,” “hired servant,” and also “the sojourner.”63
It may be conjectured that the Deuteronomic Reform law of
Deuteronomy 14:28-29 introduced the third-year tithe as a substitute for
the sabbatical year. Seven years would have been a long time for the poor
to wait for the next supply of essentials. Moreover, unlike the sabbatical
year, the third-year tithe was to be “laid up” or stored for the benefit of
the needy. It may be significant that earlier CC and H laws provide for the
sabbatical year but not for the third-year tithe; while the later RDC law
makes no mention of the sabbatical year, but does establish the third-year
tithe program expressly for the benefit of those in need of assistance.
The problematics of integrating the sabbatical year with the third-year
tithe also suggests that these two institutions were not observed contem-
poraneously, but rather that the one was meant to replace the other.

iv. The year of jubilee


The Holiness Code alone provides for a fiftieth year celebration: the
“year of jubilee.” (Lev. 25:8-17). Like the seventh-year observance,
the year of jubilee, too, was to be a time of rest for those who worked the
land:

A jubilee shall that fiftieth year be to you; in it you shall neither sow, nor
reap what grows of itself, nor gather the grapes from the undressed
vines. For it is a jubilee; it shall be holy to you; you shall eat what it yields
out of the field. (Lev. 25:11-12 RSV)

Again, it is unclear how the people were to eat what was produced if they
were not first permitted to reap or gather it. Perhaps it was understood
that during the fiftieth year, slaves, servants, and sojourners also were to

62
The third and seventh years would coincide every 21 years.
63
In addition, both wildlife (“the beasts”) and domestic animals (“cattle”) would partake
of this bounty. For them, all the land’s yield “shall be for food” (Lev. 25:7).
194 Justice and Compassion in Biblical Law

enjoy the land’s yield, as was provided explicitly in the Sabbatical year law
at Leviticus 25:6-7. Or it may have been thought sufficient for such
persons to enjoy that privilege on the forty-ninth year without doing again
on the fiftieth.64

2. Assisting the Poor in Other Ways: Promoting the General Welfare


As has been seen, biblical laws establish a number of arrangements
whereby the community and its members were instructed to provide
food for the poor. A few other laws speak more generally of aiding or
supporting the poor. Typically these laws set out affirmative duties on the
part of all Israelites. Again, the “poor” would have included those unable
to work because of age or disability, and, typically, widows, orphans, and
sojourners who did not own property or were unemployed.

a. Opening your hand to the poor


One of these laws is found in Deuteronomy 15:7-11. The fact that its
content is unrelated to the Deuteronomic Reform suggests that this
provision may derive from older Deuteronomic law, possibly the original
Deuteronomic Code. It also appears to antedate the Deuteronomic
Historian’s editing of the text. Traces of such editing appear in
Deuteronomy 15:4-5, which promises that there would be no poor among
the people of Israel if only they would keep the commandments.
Deuteronomy 15:7-11, on the other hand, presumes that there are, and
always will be, poor and needy among them:

If there is among you a poor man, one of your brethren, in any of your
towns within the land which YHWH your God gives you, you shall not

64
According to Leviticus 25:8-11, the year of jubilee would follow immediately after the
forty-ninth year, which would have been a sabbatical year under the provisions of Lev.
25:1-7. Thus there would be no cultivation or sowing during either the forty-ninth or the
fiftieth year. It is not clear that the fiftieth-year observance was meant to provide food for
the poor. Nor is it certain that the Jubilee year’s provisions were ever actually carried out.
See generally Raymond Westbrook, “Jubilee Laws,” 6 Israel L Rev. 209 (1971). Westbrook
suggests that the jubilee laws are found only in “a late stratum” of the Holiness Code,
and notes that these laws are “not at all mentioned elsewhere in the Bible.” Id.,
p. 225. Numbers 36:4 at most is a vague and passing reference. As to other possible
traces of the Jubilee year see Jeffrey A. Fager, Land Tenure and the Biblical Jubilee,
Journal for the Study of the Old Testament, Supp. no. 155, pp. 33–36 (Sheffield
Academic Press, 1993) (finding that such traces fail to show that the Jubilee year was
ever actually observed). But see Weinfeld, Social Justice (cited in note 1), p. 178.
Biblical Social Welfare Legislation 195

harden your heart or shut your hand against your poor brother, but
you shall open your hand to him, and lend him sufficient for his need,
whatever it may be. . . . You shall give to him freely, and your heart shall
not be grudging when you give to him; because for this YHWH your
God will bless you in all your work and in all that you undertake. For
the poor will never cease out of the land; therefore, I command you,
You shall open wide your hand to your brother, to the needy and to the
poor, in the land. (Deut. 15:7-11 RSV)

This law requires that Israelites assist those among them to full the extent
of their need, “whatever it may be” (v. 8). Whether such assistance was to
have been in the form of a loan or a gift is not indicated. If loans were not
repaid by the seventh year, they were to be forgiven (Deut. 15:1-6, 9).65
The law here presumes that there will always be poor Israelites (or
Judahites) in the land. But that prospect is no excuse for failing to
respond generously. Instead, it is a further reason Israelites should be
ready to “open wide [their] hand to [their] brother.” Such concern is
echoed in the wisdom writings.66

65
Deuteronomy 15:9 cautions against withholding assistance to a “poor brother” just
because the seventh year, when all debts would be forgiven or redeemed, was near. This
seventh year release from debt, described in Deut. 15:1-2, would have benefited the
poor, but was not established solely for their benefit. It applied to all Israelites, but not
to foreigners (Deut. 12:3). See generally, Brin, Studies (cited in note 10), pp. 86–87.
66
See, e.g., Prov. 14:21b (RSV) (“[H]appy is he who is kind to the poor”), and 19:17 (RSV)
(“He who is kind to the poor lends to YHWH, and he will repay him for his deed”). And
see Prov. 21:13; 28:27; 31:20. See also Job 31:16-20, where Job recites his good deeds on
behalf of the poor, widows, orphans, and sojourners. See also Sir. 3:30; 4:1, 3-5, 8; 7:10,
32; 12:3; 17:22; 29:8-9, 12-13; 34:21; 35:2; 40:17, 24; and Tob. 1:16-17; 4:7-11, 16-17; 12:
8-9. A few prophetic texts likewise point to individual responsibility for sheltering the
poor and clothing the naked. See, e.g., Isa. 58:7; and Ezek. 18:7, 16.
The author of the epilogue to the story of Job lampoons the practice of giving gifts to
the wealthy (or “welfare for the rich”). Only after Job’s colossal fortunes had been restored
(and then doubled) do his friends and relations—all of whom had been conspicuous by
their absence throughout his time of suffering—come to offer him sympathy and
comfort, and only then did each of them give Job “a piece of money and a ring of gold”
( Job 42:10-11). See also Prov. 22:16 (“He who . . . gives to the rich, will only come to
want”). See also Prov. 14:20 and 19:4. Compare Ivins (cited in Introduction to Part III,
note 12), pp. 17–19, and Michael Harrington, “Keynesianism for the Rich” (ch. 5), in his
book, The Next Left (Henry Holt & Co., 1986).
Several NT texts also call for giving to or otherwise acting for the benefit of the poor.
See, e.g., Mt. 19:21 = Mk 10:21 = Lk. 18:22; Mt. 25:31-45 (the hungry, thirsty, strangers,
naked, sick, and imprisoned); Luke 6:30a (“Give to everyone who begs from you”);
12:33a (“Sell your possessions, and give alms”); Acts 2:44-45; 4:32-35; Heb. 13:16; James
2:1-6, 14-17; 1 Jn 3:17. As to Jesus’ sayings in Luke, see Richard H. Hiers, “Friends by
Unrighteous Mammon: The Eschatological Proletariat,” 38 JAAR 30–36 (1970).
196 Justice and Compassion in Biblical Law

b. When a “brother” becomes poor


The obligation to provide food for the impoverished “brother” has already
been considered. In addition, Leviticus 25 groups four sets of require-
ments as to what must be done if or when “a brother” becomes poor, in
order to provide for his other needs or interests. All these laws are part
of the Holiness Code’s Jubilee year legislation. In this context, “brother”
seems to refer to a fellow, male Israelite, not only a genetic sibling.
The “brother” who becomes poor is to be assisted, but he also has his
own responsibilities and options.
The first of these laws, Leviticus 25:25-28, says what is to be done if a
“brother becomes poor and sells his property.” In this case, his “next of
kin” (or go’el) “shall come and redeem what his brother has sold” (RSV).67
But what is to be done if there is no one to “redeem,” that is, buy back
the property? Two possibilities are presented. If the poor brother later
becomes prosperous, he, himself, may buy it back, the price being
adjusted in some way (Lev. 25:26-27).68 But even if he lacks the where-
withal to repurchase the property, it will be returned to him anyway in
the year of jubilee (Lev. 25:28).69
What happens if the “brother” becomes poor but has neither property
to sell nor other adequate source of income? In that case, supporting
one’s brother was not a “mitzvah,” in the modern, popular sense of an
optional good deed. It was an obligation under the law. In these circum-
stances, the law addressed the “brother’s” relatives as follows:

And if your brother becomes poor, and cannot maintain himself with
you, you shall maintain him; as a stranger and a sojourner he shall live
with you. Take no interest from him or increase, but fear your God;
that your brother may live beside you. (Lev. 25:35-36 RSV)

67
It has been suggested that this law is illustrated in the story of Ruth, where the go’el
(or nearer kinsman) and Boaz are discussing which of them should redeem the property
in question. But in that story, “the brother” had not become poor; he had died. Naomi
and Ruth were widows, but not necessarily poor. They were planning to sell the property
inherited from their husbands, but had not yet sold it. Of course, by purchasing it, the
go’el or Boaz would have obviated the need for subsequent redemption.
68
See generally, Raymond Westbrook, “Redemption of Land,” 6 Israel L Rev 367 (1971).
69
There is no indication what would happen if the “brother” were to die before the Jubilee
year. Would the property be returned to his heirs, or would it remain in the hands of the
buyer? The fact that such obviously critical questions are not addressed suggests that the
jubilee law was more a visionary ideal than an actual practice. See above, note 64.
Biblical Social Welfare Legislation 197

Here “brother” probably means fellow-Israelite, perhaps female as well


as male. Other Israelites may sell food to such a “brother,” but they may
not make a profit from such sales (Lev. 25:36-37). Rather, such sales must
be at cost. To that extent, the “brother” would be spared going into
deeper debt.70 It may be noted that this law does not distinguish any
circumstances leading to poverty under which the “brother’s” fault might
relieve relatives of responsibility for assisting him. Moreover, there is no
set limit to the period of time during which an indigent “brother” might
continue to receive assistance. Evidently what was called for here was
basic support or maintenance, which presumably would include food,
clothing and shelter.71 The implicit rationale for this law is that the
well-being of the impoverished “brother” is more important than making
money; thus it would be wrong to seek to gain from the brother’s misfor-
tune. Modern laws prohibiting profiteering from sales to disaster victims
are based on a similar rationale. Leviticus 25:38 adds an explicit “motive
clause”: “I am YHWH your God, who brought you forth out of the land
of Egypt to give you the land of Canaan, and to be your God” (RSV).
Since YHWH had given his people the entire land of Canaan—thus
everything they have—they should not begrudge giving something to
those who were poor among them.
A “brother” who “becomes poor” might also choose to sell himself as a
slave or servant (Lev. 25:39-55). Apparently in such case, the “brother’s”
children also would become the buyer’s slaves or servants.72 What is to be
done next depends on whether “the brother” had sold himself to a fellow-
Israelite, or to a “stranger” or sojourner. If the sale was to a fellow-
Israelite, the buyer “shall not make him serve as a slave”; rather, he must
treat the “brother” as “a hired servant and as a sojourner. . . . [The buyer]
shall not rule over him with harshness, but shall fear [his] God” (Lev. 25:
39-40, 43 RSV). It is unclear whether the “brother” would receive wages
for his services in addition to maintenance. Curiously, there are no provi-
sions for redemption by kinsmen when a “brother” sells himself to another

70
See above, notes 14 and 15 and accompanying text.
71
Deuteronomy 15:1-3 requires creditors to release all “neighbor’s” or “brother’s” debts “at
the end of seven years.” The debtors in question would not necessarily be poor; in fact,
Deut. 15:4 contemplates the absence of poor in the land. This law evidently applied to
borrowed money or property, not to those who had sold themselves into service. Modern
bankruptcy law could be compared to seventh-year debt forgiveness. Both provisions
allow the debtor to make a fresh start, rather than remain forever burdened by obliga-
tions to creditors.
72
See Lev. 25:41, 54. The status of the brother’s wife is not indicated.
198 Justice and Compassion in Biblical Law

Israelite.73 Moreover, there is no indication that such a “brother” might


later repurchase himself or his own freedom. However, such “servants”
might not be sold as slaves (Lev. 25:42). And when the Jubilee year comes,
the brother/servant is to be freed to “return to the possession of his
fathers” (Lev. 25:41 RSV).74
Somewhat different rules apply if the “brother” who has become poor
sells himself to a stranger or sojourner (Lev. 25:47-55). In that case, the
poor “brother” can be redeemed by one of his relatives; or if he “grows
rich, he may redeem himself” (Lev. 25:48-49 RSV).75 The redemption
price varies with the number of years remaining until the year of jubilee.
If the poor “brother” who has sold himself to a stranger is not redeemed
before the Jubilee year, he shall then be released, as in the case of the
“brother” sold to a fellow-Israelite. The sojourner/owner, in the mean-
time, must “not rule with harshness over him,” but rather, must treat him
“as a servant hired year by year.”76 To that extent, this law accords with
the principle embedded in several biblical codes: the law for the sojourner
shall be the same as that for the native.77 However, the “brother” sold to
a sojourner might be redeemed or might redeem himself prior to the
Jubilee year. It is not said that the “brother” sold to a fellow-Israelite
might do so. Consequently, if keeping such a servant until the Jubilee
year was advantageous to his master, an Israelite master would be in a
more favorable position than an alien or sojourner master.
Whether the jubilee laws were ever put into effect is in doubt.78 Up to
49 years would have been a long time to wait for freedom, especially
given presumably shorter life expectancies in biblical times. How did the
Leviticus 25 provisions for release in the Jubilee year relate to provisions
in Exodus 21:1-6 and Deuteronomy 15:12-18 that called for release of a
Hebrew slave after 6 years of service? If the Leviticus 25 provisions were
written after the Deuteronomic law, the shift would have been in the

73
Compare Exod. 21:7-8 (redemption of a daughter sold as a slave or servant), discussed
in text accompanying notes 115–122.
74
Under terms of Lev. 25:25-28, the “brother’s” property would be restored to him,
debt-free, in the Jubilee year.
75
The named relatives who might so redeem him include, in the order listed: a brother,
uncle, cousin, or “a near kinsman belonging to his family.”
76
Lev. 25:53 (RSV). It is unclear whether the understanding was that the brother/servant
would be paid wages. That he might somehow grow rich enough to redeem himself
(Lev. 25:49) suggests either that he would have received wages—as might be expected in
the case of a hired servant—or else that he would have had some time free for indepen-
dent economic pursuits.
77
See above, note 30 and accompanying text.
78
See above, note 64.
Biblical Social Welfare Legislation 199

direction of replacing these earlier, more liberal or humane provisions.79


But if—as seems more likely—Deuteronomy 15:12-18 was part of the law
codified in connection with the Deuteronomic Reform, its more com-
passionate mandates would have been meant to supersede the H jubilee
law on this point.80 Even if the Jubilee year legislation was never effectu-
ated in biblical times, it represents an important underlying principle or
ideal. As one commentator observed:

The message is that indebtedness or ownership structures should be


changed when they become an obstacle to achieving or maintaining a
sane society, which must be made up of free people.81

In normative and relational terms,82 the Jubilee year legislation depicted


a society whose members were under obligation to respect the interests
or welfare of others in the community who were relatively impoverished
or otherwise disadvantaged. This obligation is grounded theocentrically,
on the faith-understanding that YHWH (or God) intends the well-being
of his community, regardless of the economic condition or class and
national origin of its members.

c. Levirate marriage: caring for widows


The law of levirate marriage (Deut. 25:5-10) was expressly intended to
preserve the name of a man who died without having a son. The widow’s
brother-in-law (levir, Latin) was to marry her, and their first son would
“succeed to the name” of the deceased in order “that his name may not
be blotted out of Israel” (Deut. 25:6).83 This son probably would eventu-
ally inherit the deceased’s property, though this arrangement is

79
See Westbrook, “Jubilee Law” (cited in note 64), pp. 221–24. Patrick speculates that the
H legislation (Lev. 25:35-43) was later than both the Exodus and Deuteronomic laws,
that “slave owners were not abiding by this older law and that H was attempting to work
out a compromise,” Patrick, Old Testament Law (cited in note 1), p. 184.
80
See Section B.3.b.i. of this chapter.
81
de Vries, Champions (cited in Introduction to Part III, note 14), p. 174. “Sane” is a crypto-
normative expression, that is, a normative judgment in the guise of naturalistic, and in
this instance, psychological, language. Here “sane” functions as surrogate for “good.”
See generally, article cited below in note 82.
82
See Richard H. Hiers, “Normative and Ostensibly Norm-Neutral Conventions in
Contemporary Judicial Discourse,” 14 Legal Stud. Forum 107 (1990).
83
See also Ruth 4:10. And see above, Chapter Two, Sections B.1.c. and B.2.
200 Justice and Compassion in Biblical Law

not specified in the law or clearly indicated in relevant narrative


traditions.84
Additionally, levirate marriage functioned, and may well have been
intended to provide for the widow’s welfare. Not only would she again
have a husband to look after her needs; she would also have a son, who in
time would assist her should she survive the levir-husband.85 Several indi-
cations of this purpose or function appear in the law and the narratives.
The legal text refers to the duty which the decedent’s brother owes the
widow. The provision is clearly for the widow’s benefit: the levir is obliged
to “take her as his wife.” As such, she would regain her status as a married
person. The new husband presumably would care for all her needs in
addition to fathering a son for her who would, among other things, carry
on the family name. Moreover, if the levir fails to make her his wife, the
widow may bring the matter before the “elders at the gate,” and testify as
to his refusal.86 The elders must then undertake to persuade the levir to
perform his duty. If they fail to do so, the widow herself is permitted—if
not required—to humiliate the recalcitrant levir by spitting in his face “in
the presence of the elders” (Deut. 25:9).87 These provisions suggest that
levirate marriage was intended to benefit not only the deceased by
perpetuating his name, but also the widow, who was hereby authorized to
apply such extraordinary social pressure in order to protect her own
interest in being once more married. In the story of Judah and Tamar
(Genesis 38), the widow, Tamar, acting in her own interests, initiates a dif-
ferent course of action in order to obtain a husband and offspring after
Judah, her father-in-law, failed to give her his surviving son in marriage.88

84
Some interpreters have suggested that in the story of Ruth, the nearer kinsman or go’el
declined to purchase his deceased relative’s property because, if thereby also compelled
to marry the Ruth, a son from this marriage would eventually inherit that property and
the go’el or his estate would lose the price of its purchase. See above, Chapter Two.
85
See Ruth 4:15. Here it is said of the levirate son: “He shall be to you a restorer of life and
a nourisher of your old age.”
86
Here, under biblical law, a woman has legal standing to testify in or before a court.
See also Deut. 21:18-21 (both parents to testify to “the elders . . . at the gate” against an
ungovernable son); and Deut. 22:13-21 (both parents of a new bride charged with prior
promiscuity to present evidence to “the elders” in “the gate”). See also Tob. 7:14 (both
Raguel and his wife, Edna, set their seals to a marriage contract). The question of wom-
en’s legal competence in biblical times is discussed briefly by Silvia Schroer, “Feminist
Reconstruction,” cited above in note 32, pp. 122–23.
87
She also was to pull the sandal from his foot and, after spitting in his face, declare,
“so shall it be done to the man who does not build up his brother’s house.” Deut. 25:
9 (RSV); see also Deut. 25:10.
88
Disguising herself as a prostitute, Tamar easily seduced Judah, who thereby unwittingly
substituted for his sons in the role of levir.
Biblical Social Welfare Legislation 201

Judah’s acknowledgment that Tamar had acted properly, given his own
failure to do so, likewise suggests that levirate marriage was meant to
provide for the widow’s welfare.
The story of Ruth provides further clues suggesting that the purpose,
as well as the function, of levirate marriage was to provide for the
widow. For some time, Ruth had been gleaning in the fields of Boaz, a
kinsman of Naomi’s deceased husband, Elimelech. Ruth had married
one of Elimelech’s and Naomi’s two sons, and had been widowed sub-
sequently by that son’s death. The other son also had died, so there was
no surviving brother-in-law to marry her. Naomi, concerned for Ruth’s
welfare, now advises her how to proceed in order to prompt Boaz to
“do the part of the next of kin” (Ruth 3:3-4, 13 RSV). She begins her
advice as follows: “My daughter, should I not seek a home for you, that
it may be well with you?” (Ruth 3.1 RSV). Clearly Naomi understood
that the levirate arrangement—here in the form of marriage to a near
kinsman—would benefit Ruth. Among other things, it would provide
her “a home.”89
In Ruth, the law of levirate marriage may be combined or blended with
an instance of surrogate parenthood. Naomi, the older of the widowed
women in the story, possibly is too old to have children, yet, arguably, she
is the first in line for levirate marriage.90 As the story unfolds, however,
Boaz marries Ruth, the younger widow, who is definitely of child-bearing

89
Some scholars urge that the procedures described in Ruth 3–4 are not properly charac-
terized as levirate marriage, since, for one thing, here the decedent’s nearest kinsman
rather than brother has the duty to marry the widow. The practice described in Ruth
probably should be regarded as either an early version or a later extension of the law of
levirate marriage set out in Deut. 25:5-10. As in the story of Judah and Tamar, in Genesis
38, since no levir was available, the family responsibility fell upon the deceased’s nearest
male kinsman. In the case of Tamar, the deceased’s father (unknowingly) filled that role.
In Ruth’s case, her late husband’s father also was dead, so the duty devolved upon the
deceased husband’s nearest, surviving, adult kinsman. The plot in the story of Ruth is
complicated by the fact that Boaz is not the nearest kinsman. Boaz—who wishes to marry
Ruth—undertakes, before the elders at the gate, to induce this nearest kinsman, com-
monly designated “the go’el ” to waive his claim by hinting that no one would want to
marry “the widow.” See generally, Daube (cited below in note 90), and Donald A. Leggett,
The Levirate and Goel Institutions in the Old Testament: With Special Attention to the Book
of Ruth (Mack Pub, 1974). See Chapter Two, Section B.2.
90
See Ruth 1:11-13. Curiously, it is not a question here of Naomi’s marrying her brother-
in-law or her deceased husband’s nearest kinsman. Instead, when Naomi contemplates
the unlikely prospect of remarriage in order to produce sons whom her widowed daugh-
ters-in-law might eventually take as husbands, she refers simply to “a husband,” as if the
critical matter would be for her daughters-in-law to marry—were it possible—her sons.
For the suggestion that in the story, the widow first expected to marry a levir, kinsman,
or go’el was Naomi, see David Daube, Ancient Jewish Law (Brill: 1981), pp. 37–43.
202 Justice and Compassion in Biblical Law

age. Later, Naomi’s friends, on learning that Ruth has borne a son, say to
Naomi:

Blessed be YHWH, who has not left you this day without next of kin;
and may his name be renowned in Israel! He shall be to you a restorer
of life and a nourisher of your old age; for your daughter-in-law who
loves you, who is more to you than seven sons, has borne him. (Ruth
4:14-15)91

Here it is not Boaz who is Naomi’s go’el (redeeming kinsman), but Ruth’s
and Boaz’s son. Levirate marriage thus provided Ruth with a husband
and a home; it also provided Naomi with a “next of kin,” a “restorer of
life” and a “nourisher” of her “old age.” It reasonably may be inferred
that under the law and practice of levirate marriage, the levirate son was
expected to look after the welfare of his mother, should she again be
widowed, and also for any widowed grandmother.92

3. Provisions for Slaves


The Holiness Code stipulates that when a “brother” sells himself either
to a fellow Israelite or to a sojourner, he is to be treated as a hired servant
or sojourner, not as a slave. Moreover, he must be released in the year of
jubilee, if not earlier.93 On the other hand, non-Israelite slaves along with
any of their children born on the slave-owner’s land, are treated as prop-
erty, and may be bequeathed as such to heirs (Lev. 25:44-46).94 Non-
Israelite slaves are the only persons characterized as “property” in biblical
law.95 Even so, non-Israelite slaves enjoyed some consideration as persons

91
Emphasis supplied. See also Ruth 4:17a: “And the women of the neighborhood gave him
a name, saying ‘A son has been born to Naomi’” (Emphasis added).
92
The law and practice of levirate marriage apparently had been abandoned by the time
of early Christianity. (But see Mt. 22:23-33 = Mk 12:18-23 = Lk. 20:27-40, which report a
question that hypothetically recalls the practice of levirate marriage.) However, chil-
dren, grandchildren, and other relatives still were expected to care for widows. See 1
Tim. 5:3-8, 16. The church also would provide assistance (Acts 6:1-6; 1 Tim. 5:16), at any
rate to righteous and elderly widows. 1 Tim. 5:9-10. Younger widows were encouraged to
remarry. 1 Tim. 5:11-15.
93
Lev. 25:39-43, 47-55. See Section B.2.b. of this chapter.
94
As an example, see Jdt. 8:7: Her deceased husband had “left her . . . men and women
slaves.” Possibly non-Israelite slaves might also pass to heiresses under the law of intestate
succession in Numbers 27. See Chapter Two, Sections A and B.
95
Exodus 21:21 probably refers to non-Israelite slaves. Hebrew slaves are distinguished in
Exod. 21:1-6 and 21:7-1l, where they clearly are recognized as having certain rights or
Biblical Social Welfare Legislation 203

with interests or rights. Most of the legislation mandating special protec-


tions for slaves, however, concerned Hebrew slaves. General provisions
with respect to slaves are considered first.

a. Humane treatment of slaves generally


Sabbath day observance was ordained not only to honor YHWH, but also
to provide rest for the human (and animal) members of the community.
This community evidently included servants or slaves.96 The term trans-
lated sometimes as “servant” (Heb.’ebed) can also mean bondman or
slave. It is likely, though not certain, that slaves, like hired servants and
sojourners, were meant to enjoy the weekly sabbath day of rest (and
refreshment, Exod. 23:12), along with others.
Slaves, both male and female, were among those who were to have the
benefit of the land’s yield during the sabbatical year (Lev. 25:6). Here,
slaves are mentioned along with hired servants. Nothing in this text
suggests that the provision was meant to apply only to Hebrew slaves.
One other law in its terms applied to all slaves.97 This was the biblical
fugitive slave law:

You shall not give up to his master a slave who has escaped from his
master to you; he shall dwell with you, in your midst, in the place which
he shall choose within one of your towns, where it pleases him best;
you shall not oppress him. (Deut. 23:15-16 RSV)98

As the Exodus story is told, the Israelites themselves were descended


from escaped slaves—a story so familiar, perhaps, that there was no need
to include a “motive clause” by way of reminder or rationale for allowing
escaped slaves to remain free. This provision differs significantly from its
counterpart in the Code of Hammurabi, under which sheltering

interests as persons. Boecker speculates that the majority of slaves—presumably mean-


ing non-Israelite slaves—“were recruited from the ranks of prisoners of war,” Boecker,
Administration of Justice (cited in note 1), p. 157. Burrows, Outline (cited in note 41), p.
303, nn. 39 and 40, lists biblical texts indicating that foreign slaves were acquired
both by capture (Deut. 20:10-18; Josh. 9:3-27; Judg. 1:28, 30, 33, 35) and by purchase
(Gen. 17:12; Exod. 12:44; Lev. 25:44-46).
96
Exod. 20:8-11; 23:12; Deut. 5:12-15.
97
So also Patrick, Old Testament Law (cited in note 1), p. 133.
98
Under this law, arguably, Paul ought not have returned Onesimus to Philemon. See
Phm. vv. 10-21. Perhaps Paul felt the law no longer binding. However, there is no clear
evidence that Onesimus actually was a “runaway slave,” though commentators often so
assert. At any rate, Paul called on Philemon to give Onesimus his freedom.
204 Justice and Compassion in Biblical Law

runaway slaves was a serious and possibly capital offense (CH 15, 16, 19).
Under the biblical law, the escaped slave is entitled not only to freedom;
he also may live “in your midst,” wherever he wishes.99 There was to be no
segregated ghetto for ex-slaves. Deuteronomy 23:16 expressly mandates
open housing: the former slave may live “wherever it pleases him best.”
If originally from another country, such a former slave would, in effect,
become a sojourner. Additionally, like other sojourners, he is to be free
from “oppression,” which, without further qualification, probably meant
any kind of harassment or invidious treatment.
Slaves, of course, might be set free if their owner chose to release them.
Judith freed her maid-slave shortly before her own death—an action
clearly regarded as further evidence of her high character (Jdt. 16:23).
Whether her slave was an Israelite or a foreigner is not indicated. There
are no other biblical instances of voluntary manumission. However, man-
umission was mandatory if masters abused their slaves in certain ways.
As a matter of law, a slave—male or female—must be set free if his or her
master strikes the slave thereby causing loss of an eye or a tooth (Exod.
21:26-27).100 Thus even non-Israelite slaves were considered more than
mere physical “property.” Provision for freeing a slave under such
circumstances is unique, in the ancient Near East, to biblical law.101
Additionally, as will be seen, Hebrew (or Israelite) slaves were entitled to
release after specified periods of service.

b. Special protections for “Hebrew” slaves


Laws governing the rights of Israelites who become poor and sell
themselves as slaves or servants (Lev. 25:39-55) already have been

99
See generally, Hamilton, Social Justice (cited in note 1), pp. 117–21. Hamilton suggests
that the biblical fugitive slave law, which allows a slave, whether Israelite or foreigner, to
“escape with impunity . . . calls into question the legitimacy of slavery everywhere, even
within Israel.” Id., pp. 119–20.
100
See Yaron, “Biblical Law” (cited in note 15), p. 36: “As further examples of biblical rules
as yet without parallel in the ancient Near East, we may point to a series of provisions
concerning slaves . . . [in Exodus and Deuteronomy]. They all display a markedly
humane tendency.” Exodus 21:20 imposes “liability upon a master who beats his slave or
maid-servant to death.” Another instance Yaron cites is Exod. 21:26-27.
101
See Boecker, Administration of Justice (cited in note 1), pp. 162–63: “There is no
prescription in the CH corresponding with Exod. 21:26-27. In fact, no other ancient east-
ern code discusses an injury to his own slave by the slave’s master. They all regard the slave
essentially as a possession, damage to which [only] reduces its value for the slave owner . . .
There is practically no trace [in the biblical law] of the idea that the slave is property of
his owner. He has rights of his own, particularly, the right to bodily integrity.”
Biblical Social Welfare Legislation 205

considered.102 Two other laws also were intended to protect the interests
of Hebrew slaves. The first of these evidently was meant to apply when
Hebrew slaves were sold involuntarily, though under their terms these
laws could also apply when persons sold themselves as slaves. The second,
found only in the CC, provides certain protections for Israelite women
sold as slaves by their fathers.

i. Six years of service, then free


In his illuminating article on biblical consumer credit law, Paul Rasor
notes that biblical law “does not expressly authorize or establish debt slav-
ery,” but rather assumes the existence of that custom or practice.103 Biblical
law then proceeds to provide certain protections for those affected. It is
likely that many if not most Hebrew slaves were debt slaves.104
According to Exodus 21:1-6, and also Deuteronomy 15:12-18, Hebrew
slaves were entitled to their freedom after they had served 6 years.105
These two versions of the law contain several important differences, and
it may well be that provisions in the later Deuteronomic Code were
meant to replace those in Exodus.106 The earlier, Covenant Code, version

102
See Section B.2.b. of this chapter.
103
See Rasor, “Biblical Roots” (cited in Introduction to Part III, note 14), p. 177.
104
Id. See also Cohn, Human Rights (cited in note 9), p. 56: “A ‘Hebrew’ . . . could become
a slave either by order of the court on conviction of theft, if he was unable to make resti-
tution (Exod. 22:2), or by giving himself into bondage because of his inability to pay his
debts (Lev. 25:39) . . . . It was against the law to acquire a Hebrew slave in any other way
(Lev. 25:42).” But see Jer. 34:13-14 (referring to the sale of Hebrew slaves). Cohn notes
related texts at Prov. 22:7; Isa. 50:1; and Amos 2:6 and 8:6 (condemning those who
would buy or sell the poor and needy for silver or a pair of shoes or sandals). Burrows,
Outline (cited in note 41), p. 303, n. 38, identifies other texts indicating voluntary or
involuntary enslavement for debt: Lev. 25:47-55; 2 Kgs 4:1; and Neh. 5:5-8.
105
Since neither law addresses the question, it apparently made no difference whether the
slave’s owner was an Israelite or a sojourning foreigner. But see Jer. 34:14, which could
be read to mean that a Hebrew might be owned by a non-Israelite, and that only Israelite
slave owners were obliged to free Hebrew slaves after 6 years. It could be imagined that
slave owners might have tried to evade this law by selling their slaves just short of their
6 years’ service. In that case, would the slave have to serve her new master for 6 more years
before she could be freed? Or would service be limited to a total of 6 years, regardless of
the number of owners during that time? Biblical law is silent as to this issue, but the latter
prospect seems more probable. Jeremiah 34:8-17 indicates that Israelites (or Judahites)
sometimes abused this law and their slaves by taking back those who had been set free.
106
See Blenkinsopp, “Biblical Laws” (cited in note 3), pp. 100–01 (comparing Exod. 21:
2-11 and Deut. 15:12-18). “In general, there is so much overlap between the laws in
Exod. 20–23 and those in Deut. 12–26 that it is difficult to avoid the conclusion that the
latter were intended to replace the former. In the final stages of the formation of the
Pentateuch, however, the decision was made to bring together all traditional legal
material, irrespective of overlap or differences.” Id., p. 100.
206 Justice and Compassion in Biblical Law

deals directly with questions relating to a slave’s family, notably, his wife
and children:

When you buy a Hebrew slave, he shall serve six years, and in the
seventh he shall go out free, for nothing. If he comes in single, he shall
go out single; if he comes in married, then his wife shall go out with
him. If his master gives him a wife and she bears him sons or daugh-
ters, the wife and her children shall be her master’s and he shall go out
alone. But if the slave plainly says, “I love my master, my wife, and my
children; I will not go out free,” then his master shall bring him to
God, and he shall bring him to the door or the doorpost; and his mas-
ter shall bore his ear through with an awl; and he shall serve him for
life. (Exod. 21:2-6 RSV)

Several alternative scenarios are covered explicitly or by implication.


An unmarried male Hebrew slave, who remains unmarried, is to be set
free at the end of 6 years’ service. If he was already married before being
bought, his wife would also be free to go with him after 6 years, as would
any children born of that marriage. Presumably, the wife also would
have been a slave during that time.107 If the male slave enters servitude
unmarried, but his master or lord (Heb. ’adon) provides him with a
wife—almost certainly meaning a woman who was already a slave—and
she bears him children during the 6 years of servitude, the wife and
children would continue to be slaves after his 6 years had been com-
pleted.108 In that case, the male Hebrew slave then must make a “Hob-
son’s choice” between taking his freedom but leaving his family, or
remaining with his family but as a slave for the rest of his life. The recita-
tion and ceremony described in Exodus 21:5-6 institutionalize proce-
dures to be observed if he makes the latter choice. Significantly, the
slave’s statement is to be made “plainly.” It is unclear whether the ear-
piercing ceremony was to take place at a religious shrine or at the mas-
ter’s house. In effect, God is witness to the transaction. Possibly the
pierced ear would serve as a reminder, and, should later controversy

107
It would be possible, but unlikely, that a slave might be married to a free person. But if
the wife was free, there would have been no need for the law to stipulate that when the
male slave was freed, “his wife shall go out with him.”
108
As this law stands, there is no suggestion that a female slave, even if given a male slave as
her husband, would be freed after she served her master (or mistress) for 6 years.
Biblical Social Welfare Legislation 207

arise, as legal evidence showing that the slave had knowingly waived his
right to freedom and so remained bound to his master.
Under terms of the Exodus (CC) law, the slave’s wife and children
belonged to the master only if he had given this wife to the slave, and if
the children subsequently were born by her. If the slave was already
married to another woman, her children apparently would not belong to
the master, even if born during the 6-year period of servitude. The same,
presumably, would be the case if the slave married someone other than
a woman given to him during his servitude. There is no indication
whether a male slave might choose a wife for himself during his time of
servitude, or whether, if he did so, she would also become a slave for the
duration. As the law reads, it also is unclear what would happen if the
master gave the slave a wife who did not then bear him children. In such
a case, perhaps, the wife also would go free at the end of the 6 years.
The Deuteronomic version (Deut. 15:12-18) introduces a number of
changes, several of which manifest a greater degree of compassion for
the affected persons.
First of all, the newer law is gender-inclusive: a female Hebrew slave or
servant (Heb. ’amah) who has been purchased shall also be free to go
after 6 years of service, just like a male Hebrew slave [’ebed] (Deut. 15:12).
Under the earlier law, a female Hebrew slave apparently could have been
required to continue in servitude all her life. The newer law was also
more liberal in that it provided explicitly that if she chooses to remain
with her master at the end of that time, a female Hebrew slave, too,
might do so, after waiving her right to freedom by going through
a similar ceremony (Deut. 15:16-17).
A second major difference here is that the man’s or woman’s employer
is never described as his or her “master” (’adon). Instead, the law simply
addresses the purchaser in the second person (“you”) without further
characterization. Here, rather more clearly than in Exodus 21:1-6, the
arrangement parallels the early American institution of indentured
servitude. The change in nomenclature suggests greater sensitivity to the
dignity and integrity of those experiencing a time of such service.
Another significant difference in the newer law is that, when the owner
frees his slave or “bondservant,” he is admonished to contribute gener-
ous provisions for the former servant’s new life of freedom:

And when you let him go free from you, you shall not let him go empty-
handed; you shall furnish him liberally out of your flock, out of your
208 Justice and Compassion in Biblical Law

threshing floor, and out of your wine press; as YHWH your God has
blessed you, you shall give to him. (Deut. 15:13-14 RSV)109

Here the basis and perhaps also the measure of giving is gratitude for
what YHWH has provided the former owner. As often elsewhere in
Deuteronomic law, such generosity or compassion also is grounded in
the Israelites’ remembered experience of servitude in Egypt and of their
redemption from it: “You shall remember that you were a slave in the
land of Egypt, and YHWH your God redeemed you; therefore I com-
mand you this today” (Deut. 15:15 RSV).110 Moreover, the Deuteronomic
law offers certain pragmatic consolations to owners for the loss of their
bondspersons, and also, perhaps, for the cost of furnishing them liber-
ally when they go:111

It shall not seem hard to you, when you let him go free from you; for
at half the cost of a hired servant he has served you six years. So YHWH
your God will bless you in all that you do. (Deut. 15:18 RSV)112

The bondsperson’s services were obtained at bargain rate; and YHWH,


himself, will see to it that obedient owners continue to prosper.
The most notable difference between this Deuteronomic and the earlier
Covenant Code provision is that here nothing at all is said about the Hebrew
bondsperson’s spouse or children. Implicitly, they would remain free
throughout the term of servitude, and be free to go with the “bondman” or
“bondwoman” when his or her term of service was completed. Silence on
this point suggests that any spouses married or children born during the
period of servitude would not themselves thereby become slaves or
servants. Thus, at the end of the 6 years, the “bond” or indentured servant
would not have to face the Hobson’s choice between freedom and family.
Here, the only reasons mentioned why he or she might choose to remain

109
It is clear from the context (Deut. 15:12, 17) that references to the “bondservant” as
“him” were meant to be gender-inclusive.
110
See Hamilton, Social Justice, Nasuti, “Identity,” and Sonsino, “Motive Clauses,” cited in
note 27 as to “motive clauses.”
111
Deuteronomy 15:18 picks up from vv. 13-14 where the Hebrew bondsperson decides to
opt for freedom, and the owner is instructed to provide generously for him or her.
112
See Yair Zakovitch, “Some Remnants of Ancient Laws in the Deuteronomic Code,”
9 Israel L Rev 346, 349–51 (1974), suggesting that the customary period of hired
servitude in early Israel was 3 years, as may be intimated in Isaiah 16:14 and in the Code
of Hammurabi.
Biblical Social Welfare Legislation 209

as bondservant are love for the owner and the owner’s household, and the
prospect of continuing a good life under servitude (Deut. 15:16).113
The ultimate effect of the Deuteronomic revision of the law was to
provide freedom for all Hebrew slaves, both male and female—at least
those who had been sold to other Hebrews—who wished to be free, by
eliminating their need to choose between freedom and family.114 After
6 years of service, they were free to go unless they really preferred to stay
and continue to serve their erstwhile owner and his household. Evidently
their wives or husbands and any children born during the time of
servitude remained free both then and afterward.

ii. When a father sells his daughter as a slave


One other law provides certain protections and benefits for Hebrew
slaves. This is an old law found only in the Covenant Code (Exod. 21:
7-11). It sets out limitations on a master’s conduct with respect to a female
slave sold to him by her father.115 Presumably both seller and buyer were
understood to be Hebrews or Israelites. Neither text nor context indicates
under what circumstances a man might decide to sell his daughter as a
slave or maidservant (Heb. ’amah). There are no narrative instances of
men selling daughters,116 nor is the existence of such practice intimated

113
Other differences between the two versions of the law include the fact that in Deuteron-
omy, the ear-piercing ceremony calls for thrusting an awl through the servant’s ear and
“into the door.” The Exodus version does not include this last feature. Perhaps the
Deuteronomic version only specifies what was implicit or understood in connection with
the Exodus ceremony. Or the meaning may have shifted so as to symbolize the relation
of bondage between servant and the owner’s house. In Deuteronomy, “the door” seems
to be that of the householder, and there is no mention that the ceremony was to take
place “before God.” Possibly this alteration was one of the several accommodations or
institutional adjustments to the closure of the local cult shrines that were incorporated
into the laws found in Deut. chs. 12–19. Thus Levinson, Deuteronomy (cited in note 55),
pp. 111–12. On differences between the CC and Deuteronomic laws, see generally,
Patrick, Old Testament Law (cited in note 1), pp. 111–13 (concluding, “overall, servitude
has been reduced to ownership of a person’s labor, not of the person”). Id., p. 113.
114
Cf. Lev. 25:39-43, 47-55. Possibly the Deuteronomic law was intended to override the
provision in Lev. 25:39-43 concerning Israelites who sold themselves as slaves to other
Israelites. Under the H laws, those slaves (and their children) would not be freed until
the Jubilee year. Alternatively, the Deuteronomic law may have been meant to apply only
in cases where Hebrews who already had become slaves were sold to Israelites. As to
Jeremiah’s report concerning King Zedekiah’s mandatory manumission of Hebrew
slaves and the Judahites’ failure to do so (Jer. 34:8-22), see Weinfeld, Social Justice (cited
in note 1), pp. 152–56.
115
See generally, Patrick, Old Testament Law (cited in note 1), p. 71.
116
But see 2 Kgs 4:1, where a creditor comes to take a widow’s children as slaves. Compare
Ruth 4:5, 10, which refer to “buying” Ruth as wife in order to perpetuate the name of
210 Justice and Compassion in Biblical Law

in prophetic or wisdom literature.117 Leviticus 25:39-43 and 47-55 concern


the situation when a man becomes poor and sells himself into slavery.
The text of Exodus 21:7-11 suggests rather clearly that if a man sold his
daughter, she would have the status of a concubine or wife, rather than
that of a menial servant. Moreover, the buyer was obliged, under the law,
to treat the woman with respect. His options were limited in three ways.
The apparent sense of Exodus 21:8 is that if the buyer is displeased with
her as wife, he must let her “be redeemed.” Possibly the procedure for
redemption in this case would be like that spelled out later in the
Holiness Code at Leviticus 25:47-55.118 The redeemer or go’el, presum-
ably, would be one of her kinsmen.119
Alternatively, the buyer might “designate” the woman as a wife (or con-
cubine) for his son. But in that case, the buyer must also treat her as he
would treat his own daughter (Exod. 21:9). Such treatment, presumably,
would be marked by affection and kindness. Biblical tradition has little to
say about men’s attitudes toward their daughters, but it need not be sup-
posed that Judges 11:34-40 represented standard or common practice.120
Finally, if the buyer keeps the woman as his wife, but then marries some-
one else, he still must continue to support her at the same standard of
living and must continue to honor her “marital” or conjugal rights.121

her deceased husband (and/or father-in-law). It is unclear to whom payment would


have been made; in fact, there is no indication that any payment was made. Boaz may
have been speaking in metaphor, in effect, saying to the go’el, “If you buy the property,
you also must marry the widow as part of the deal.” Thus Leggett, Levirate and Goel
(cited in note 89), pp. 216–17. In any event, Ruth was not sold by her father—or by
anyone else.
117
Hosea says that he bought (or bought back) a wife or concubine who was already an
adulteress, but the text gives no further particulars as to the transaction. Hos. 3:1-3.
118
The Leviticus law, in its terms, however, applies only when a man sells himself as a slave
to a stranger or sojourner.
119
If no one redeemed her, the owner might, perhaps, sell her to another Israelite. If the
practice embodied as law in Deut. 15:12-18 were already in effect, the woman could then
gain her freedom after 6 years of service. In any event, the master may not sell her to a
“foreign people.” (Exod. 21:8). A sale to a foreigner might result in the woman being
taken from the land of Israel to another land where she would no longer be protected
by Israelite law. This provision may also reflect concern to protect the woman from
being married to a man who worshiped other gods. Inheritance issues also may be
implicated here; see Num. 36, and Chapter Two, Section B.1.b.
120
In that story, anyone who came out of Jephthah’s tent could have been sacrificed as a
result of his rash and tragic vow. Compare Phyllis Trible, Texts of Terror, pp. 92–116.
Positive attitudes and acts as to daughters are indicated elsewhere, e.g., in Gen. 31:43-50;
2 Sam. 12:3; and Job 42:15. “Daughter” is clearly a term of endearment in Ruth 1:11-13;
2:8; and 3:10-11. See also Mt. 9:22; Mk. 5:34; and Lk. 8:48.
121
Reference in these circumstances to a purchased wife’s rights is noteworthy. “If he takes
another wife to himself, he shall not diminish her food, her clothing, or her marital
rights.” Exod. 21:10 (RSV). It could be inferred that free married women likewise were
Biblical Social Welfare Legislation 211

In summary, the buyer’s three alternative duties were: (1) to allow the
woman to be redeemed if he does not wish to marry her himself; or (2) if
he does not marry her, he may designate her as wife for one of his sons but
then must treat her as a daughter (or daughter-in-law); (3) if he does marry
her, and then also marries some other woman, he is to continue her sup-
port undiminished. If he fails to meet these obligations, the woman “shall
go out for nothing, without payment of money” (Exod. 21:11 RSV).122
The Exodus 21 law about a man’s selling his daughter as a slave is not
repeated or alluded to in later biblical law or other tradition. It may
represent an attempt before or at the time the Covenant Code was com-
pleted to mitigate earlier if not ancient ways of treating women who had
been sold as slaves by their fathers. It is significant that Exod. 21:7 does
not authorize or mandate, but rather presumes the existence of such
practice. The biblical law then proceeds to establish safeguards for the
benefit of the woman so sold. The fact that this law is not repeated in the
more recent codes may mean that in later times men no longer sold
their daughters as slaves. Once such practice had been abandoned, these
protective laws no longer would have been needed.

understood to enjoy such rights. That a man might have two wives was recognized also
in Deut. 21:15-17. There it is required that even if he dislikes one of them, he must treat
her, or more particularly, her son, fairly.
122
This text makes no explicit provision for divorce either in conjunction with any of the
three alternative obligations, or as part of the final arrangement if the woman “goes
out,” that is, regains her freedom. These requirements are somewhat like those set out
in Deut. 21:10-14 concerning a man’s obligation to a woman taken captive in war. In due
course, the captor may make her his wife. But if he has “no delight in her,” he must free
her. He must not sell her or treat her as a slave, for he has “humiliated her.” Here, too,
there is no specific provision for divorce. In both cases, however, it may have been
understood that freeing the woman also included granting her divorce. So also Carmi-
chael, Spirit (cited in note 1), p. 135 as to the captive woman law.
Chapter 9

Biblical Social Welfare Laws and


Modern Social Welfare Policy

[Y]ou shall love your neighbor as yourself. I am YHWH.


Leviticus 19:18b

WE THE PEOPLE of the United States, in Order to form a more perfect Union,
establish Justice, insure domestic Tranquility, provide for the common defense,
promote the general Welfare, and secure the Blessings of Liberty to ourselves and
our Posterity, do ordain and establish this CONSTITUTION for the United
States of America.
Constitution of the United States, Preamble

Biblical law has been of little or no interest to most proponents of


Western religious social ethics. Jewish tradition has, for the most part,
grounded ethics on the Talmud and subsequent interpretation, giving
relatively slight attention to substantive biblical law as such. Early 20th
century Social Gospel advocates focused mainly on the “teachings of
Jesus,” especially those found in the first three gospels.1 More recently,
proponents of Christian social ethics occasionally refer to Old Testament
prophets, but hardly ever to biblical law.2 Particularly in Protestant—and
not only in Lutheran or dispensationalist—circles, the whole notion of
“law” has been suspect, and many have come to believe as a matter of
theological principle that biblical law has been superseded by “gospel.”3

1
See, e.g., Walter Rauschenbusch, A Theology for the Social Gospel (Macmillan, 1917); Shailer
Mathews, Jesus on Social Institutions (Macmillan, 1928).
2
See Chapter Eight, note 2.
3
Protestant, or perhaps modernist, aversion to law is epitomized in the late Joseph
Fletcher’s writings on “situation ethics” (cited in Chapter Eight, note 2). See also Rudolf
Bultmann’s characterization of Jewish and biblical law as relating only to external
matters, in contrast to the “radical obedience” preached by Jesus. On Bultmann’s
position, see Richard H. Hiers, Jesus and Ethics (Westminster Press, 1968), pp. 79–114.
Modern Social Welfare Policy 213

Yet as been seen in this study, biblical law related to a great many social
issues, in particular, to situations involving people’s welfare. Numerous
biblical laws were intended to insure that particularly vulnerable persons
would not be subjected to oppression or discrimination. Other biblical
laws called for establishing a variety of institutions or programs to assure
that persons living on the socio-economic margins would enjoy at least
some measure of freedom from hunger, as well as other types of support
or care. Strangely, studies of biblical law hardly ever focus on its social
welfare provisions.4
It may be significant that many of the specific humane or compassionate
“welfare” laws reviewed here have close counterparts in texts attributed to
one or more of the classical prophets.5 Since both the Covenant Code
(CC) and the original Deuteronomic Code (D) probably antedate the
classical prophets, it appears likely that these prophets based their con-
demnations of contemporary practice on the standards of just and com-
passionate conduct articulated in these laws.6 In turn, the classical
prophetic tradition may have influenced the development of later law,
such as that embodied in the Holiness Code (H) and the Deuteronomic
Reform (RDC) laws.7 At any rate, it appears that biblical law may provide
an important resource or point of reference for those in our time who
have similar concerns as to societal conditions and their effects on the
well-being of persons. To the extent that such concerns also surface in
wisdom writings, these much neglected sources of insight as to the
human situation may also prove worth reexamination. There may be

4
See Chapter Eight, note 1.
5
See Chapter Eight, notes 6, 7, 15, 19, 23, 24, 34–35, 38, 40, 45, 104 and 105 and accompa-
nying texts. In Jesus’ Parable of the Rich Man and Lazarus, the rich man too late realizes
his obligation to the poor and needy, but wishes Father Abraham to send someone from
the dead to warn his brothers of their like obligation. Abraham denies this request:
“If they do not hear Moses and the prophets, neither will they be convinced if some one
should rise from the dead.” (Lk. 16:11 RSV). “Moses,” of course, represents biblical law.
6
See generally, Edward McGlynn Gaffney, Jr. “Of Covenants Ancient and New: the
Influence of Secular Law on Biblical Religion,” 2 J. of L. & Relig. 117, 134–37 (1984).
“[I]t can now be concluded that the major function of the later prophets was not to
repudiate the law, but to refer back to the covenant tradition and to call the people
repeatedly back to the terms of its covenant with YHWH.” See also E. Clinton Gardner,
Justice and Ethics (Cambridge Univ. Press, 1995), pp. 29–44 (on relations between
biblical law and prophets). Various classic biblical texts derived both justice and compas-
sion from YHWH’s own nature or demands. Thus, e.g., Ps. 33:5; Isa. 30:18; and Micah 6:8.
See generally, Christopher J. H. Wright, Old Testament Ethics for the People of God
(InterVarsity Press, 2004), pp. 253–80.
7
See Gaffney, “Covenants” (cited in note 6 above), at p. 137: “Because the prophetical
concerns for social justice clearly influenced the legal tradition, it must be assumed that
Israelite law was not antithetical to prophetic religion.”
214 Justice and Compassion in Biblical Law

greater congruence between biblical law and biblical wisdom than has
commonly been supposed by either legal or biblical scholars.8
It may be noted here only briefly that contemporary secular theorists
typically try to evade normative questions by grounding their proposi-
tions upon purportedly norm-neutral “objective” considerations. Thus
law and economics theorists profess to believe that the supposedly free
market—the latter-day counterpart of Adam Smith’s “invisible hand of
Providence”—will resolve all important legal or policy questions.9 This
happy outcome is expected to take place without benefit of normative
reflection on the part of those involved; such reflection on the part of
the public’s constitutionally and democratically elected representatives,
also known as “the government,” is particularly unwelcome in such
circles.
Still others undertake the problematic task of trying to extrapolate
societal norms from individual self-interest, as if the latter were simply
objective reality and could somehow justify concern for others.10 Among
these attempts, of course, are Locke’s and Hobbes’s social contract theo-
ries, utilitarian philosophy, and Rawls’s theory of justice. That such theo-
ries typically rely on imagined fictive scenarios is one clue to their
proponents’ desperation.11 Whatever else may be said of the sharp pen
wielded by the late Ayn Rand, she made it rather clear that those who
pursue self-interest “rationally,” that is, without importing (or smug-
gling) normative criteria into their analysis, will have no basis for being
concerned about the welfare of other persons, especially those on the
margins. Implicit in all of Rand’s thought is the notion that what persons
on the margins should do is to perish, preferably quietly and off-stage, so
as not to disturb the equanimity of the propertied classes. Susan
Wolfson’s comments on the problematics of rights theory based on

8
See, e.g., Chapter Eight, notes 7–10, 19, 21, 25, 33, 35, 38–40, 44, 45, 54, 66, and 104 and
accompanying texts. See Joseph Blenkinsopp, Wisdom and Law in the Old Testament: The
Ordering of Life in Israel and Early Judaism (Oxford Press, 1983) (examining close connec-
tions and parallels), and the brief survey of social welfare proverbs by James Limburg,
The Prophets and the Powerless (John Knox Press, 1977), pp. 33–35.
9
See, e.g., the writings of Judge Richard Posner. Posner’s position is thoughtfully
critiqued by Laura Carrier, “Making Moral Theory Work for Law,” 99 Colum L Rev 1018
(1999).
10
See Introduction to Part III, notes 21 and 22 and accompanying text.
11
Of course self-interested persons can enter into actual agreements, contracts, or cove-
nants in order the better to promote their own as well as their common welfare. See e.g.,
Introduction to Part III, notes 6–9 and accompanying text.
Modern Social Welfare Policy 215

individualism could be applied to all jurisprudential systems founded on


individual self-interest:

[B]y having the exclusive focus of the model on the individual and his
autonomous initiative in exercising his rights, a blindly inaccurate and
immoral egocentricity of the individual is actually a central compo-
nent of the model itself. . . . Each individual’s autonomy becomes
a virtual law unto itself unaccountable to anyone else, except in so far
as in or out of court with the other individual’s conduct.12

The self may, of course, be regarded as the center of value, and a person
may be committed to the advancement of his or her own interests.
In that case, however, one is concerned for others only incidentally or
instrumentally, to the extent that what is good for the other is also good
for oneself.13 Some utilitarians, for instance, have urged that the poor
should be provided a safety net lest they revolt and overthrow the privi-
leged classes.14 Or a group of persons may regard their collective self-
interest as a matter of ultimate concern or importance. From this
standpoint, what is good is what is good for the group; what is bad is what
affects the group adversely. H. Richard Niebuhr characterizes this kind of
faith-grounded ethics as the ethics of “henotheism.”15 Biblical social
welfare law turns out to be rather more inclusive. As has been seen, biblical

12
Wolfson, “Liberal Rights Theory” (cited in Chapter Eight, note 9), pp. 410–11. See also
Douglas Sturm, Community and Alienation: Essays on Process Thought and Public Life
(Univ. of Notre Dame Press, 1988), critiquing individualism in American culture. Robert
N. Bellah, et al., Habits of the Heart: Individualism and Commitment in American Life
(Univ. of Notre Dame Press, 1985) report the peculiar difficulties that Americans who
are committed—in theory—to self-interest experience when attempting to articulate
reasons for their undertaking to promote the well-being of others.
13
See Erich Fromm, The Heart of Man: Its Genius for Good and Evil (Harper & Row, 1968),
pp. 62–77 characterizing “benign” and “malignant narcissism.”
14
Proponents of this argument are unable to explain why, conditions permitting, it would
not be better simply to let the poor die in misery—the outcome implicit in Ayn Rand’s
position—or more actively seek to bring about their demise. Unable, that is, without
recourse to some further implicit norm, such as the value of human life. Philosophers
often define “rational” so as to include this norm, which actually derives from humanis-
tic commitment or faith. See below, note 21. Rationality and humanistic faith may be
confused in modern (or modernist) thought because both at least indirectly derive from
18th century culture which celebrated not only reason, but human worth and dignity.
To what extent 18th century humanistic faith and ethics rested upon Judeo-Christian
tradition is not of concern here. No doubt there were also classical antecedents.
15
See H. R. Niebuhr, Radical Monotheism (cited in Introduction to Part III, note 27),
pp. 24–31. Niebuhr also characterizes this kind of faith as “social” or “tribal” faith. Its
adherents derive their sense of value from their membership in the group, and are loyal
to it as their “center of value.” He cites nationalism as an example.
216 Justice and Compassion in Biblical Law

laws insist on equitable and compassionate regard for and treatment of


aliens, servants, slaves, and the poor, and, perhaps more often than might
be expected, women.16
This book does not propose that going “back to the Bible” is the answer
to the quandaries of contemporary jurisprudence or public policy.17
Biblical law was part of a covenantal relationship between Israel and
YHWH, its officially acknowledged God. Nevertheless, the biblical under-
standing of covenant may be relevant to contemporary reflections on the
relations between law and ethics.18
Biblical law had as its normative center or Grundnorm the belief that
YHWH, who had brought all being into existence, affirmed that all exis-
tence was good and intended that his people, Israel, for whom he cared
especially, should order their interpersonal and societal relationships on
his own pattern of justice and mercy in dealing with them and others.
Rights and duties enacted and implicit in biblical law all derive from this
faith-understanding.19 Biblical tradition remembers and celebrates this

Nationalism shows its character as a faith whenever national welfare or survival is


regarded as the supreme end of life; whenever right and wrong are made dependent on
the sovereign will of the nation, however determined; whenever religion and science,
education and art, are valued by the measure of their contribution to national existence.
Id., p. 27.
See also Fromm, Heart of Man (cited in note 13 above), pp. 78–94, on the character and
perils of “social narcissism.”
16
As to women, see Chapter Eight, notes 6, 17, 26–36, 44, 45–55, 59–63, 83–92, 96–101,
109–114, 115–122 and accompanying text.
17
“Certainly the Chinese government is not likely to be persuaded to embrace human
rights by references to the Bible.” Eric Blumenson, “Who Counts Morally?,” 14 J. of L. &
Relig. 1, 39 (1999–2000), reviewing, but in this instance caricaturing and significantly
misrepresenting Michael Perry’s position as set out in Perry, Idea of Human Rights, cited
in Introduction to Part III, note 26.
18
Hamilton offers a number of constructive comments in this connection, Hamilton
(cited in Chapter Eight, note 1), pp. 139–58. See also Gowan, “Wealth and Poverty”
(cited in Chapter Eight, note 1), p. 353, and Fager, Land Tenure (cited in Chapter Eight,
note 64), p. 122 (suggesting potential commonality between biblical and modern “com-
munity’s moral and imperative toward its economically vulnerable members”). Without
focusing directly on biblical law or covenant, Eric Mount, Jr., offers an insightful critique
of a number of current issues in his recent book, Covenant, Community, and the Common
Good: An Interpretation of Christian Ethics (Pilgrim Press, 1999). See esp. ch. 4, “Covenants
of Work, Family, and Welfare,” id., pp. 80–106.
19
See generally, Louis E. Newman, “Covenant and Contract: A Framework for the Analysis
of Jewish Ethics,” 9 J. of L. & Relig. 89 (1991). “Doing God’s will, then is a way, perhaps
the only adequate way, for Israelites to demonstrate their gratitude.” Id., p. 95. “The
moral duty to express gratitude to one’s benefactor would appear to be the basis for all
legal duties under the covenant.” Gratitude is certainly one aspect of the biblical under-
standing of the proper relationship between God or YHWH and his people, as is
indicated in several of the “motive clauses.” See Chapter Eight, note 27 and accompany-
ing text. Other aspects of that relationship include trust or confidence, loyalty or
devotion to him, and caring attitudes and responsive actions—as expressed in particular
Modern Social Welfare Policy 217

care as it was embodied historically in YHWH’s delivering his people


from bondage in Egypt and afterwards making his covenant with them.
Rights20 do not evidently inhere in humanity as such, nor has it been
shown that duties derive from thought experiments, however ingenious.
H. Richard Niebuhr has observed that people make moral judgments
and act accordingly on the basis of their trust or confidence in, and
loyalty or devotion to some more or less inclusive and transcendent
center of meaning and value.21 Biblical faith, and also Judaism, Christi-
anity, and some other world religions are committed to the “One beyond
the many” who is affirmed as source and valuer of all being. Such faith
Niebuhr characterized as “radical monotheism.”22 To a remarkable
degree, biblical social welfare legislation accords with this faith which is
fundamental to the worldview expressed in nonlegal biblical texts.23

biblical laws—as to other persons. See also Wolfson, “Liberal Rights Theory” (cited in
Chapter Eight, note 9), at pp. 417, 421, 423, and 426. See also Gardner, “Justice” (cited
in Introduction to Part III, note 5), pp. 409–10.
20
As to rights as a feature of biblical tradition, see Chapter Eight, notes 9, 35, 46, 95, 101,
121, and accompanying texts.
21
See generally, H. R. Niebuhr, Radical Monotheism (cited in Introduction to Part III, note
27), pp. 101–26. For persons who place their confidence or trust in humankind and
devote themselves to human well-being, humanity constitutes such a transcendent cen-
ter of value. All humanity, of course, transcends the self. Such humanism—even when
labeled “secular”—functions as religion. Much of classical, modern, and postmodern
thought reflects this kind of confidence and devotion, though the religious character of
such faith and ethics is generally unacknowledged or denied. Humanism is, obviously,
more inclusive than tribal faith/ethics systems, such as racism or nationalism. But
humanism is less inclusive than the faith and ethics of reverence-for-life. See generally,
Hiers, “Reverence for Life,” cited in Chapter Eight, note 28. The limits of humanistic
faith and ethics pose many problems: for instance, do only those now alive count, or
those who may be born in future generations? Those just conceived, or still in utero?
The comatose? It is also a question whether humanistic faith and ethics can be self-sus-
taining, that is without a transcendent, theistic grounding. And clearly humanism, like
theistic religions, can be corrupted when its avowed adherents seek above all what is
good for their particular groups or communities, e.g., their own nation, race, or class.
Such issues need not be addressed here. It may be enough to observe that human
beings are not, as such, committed humanists. Not everyone cares about their own
family or neighbors, let alone human welfare more inclusively. But humanistic faith and
ethics is implicated when people of whatever philosophical or jurisprudential school
affirm that what is good is what is good for human beings.
22
Id., pp. 24–63.
23
Thus in the first creation narrative, God is said to have affirmed that all he had made is
“very good” (Gen. 1:31). As the story is told, YHWH’s covenant with Noah—the first and
most comprehensive of biblical covenants—was also made not only with humankind,
but also with every kind of living creature for all future generations. Gen. 9:8-17. See
Hiers, “Reverence for Life” (cited in Chapter Eight, note 28), pp. 134–138. Many of the
psalms celebrate YHWH as the creator of all that is, and praise him for his care for all
creation. See, e.g., Pss. 136, 145, 147 & 148. Such “radical monotheism” also comes to
expression in such classical texts as Isa. 40:12-31; 45:18-23; and 46:1-11; and the book of
Jonah. See also Chapter Eight, note 31 and accompanying text.
218 Justice and Compassion in Biblical Law

To be sure, historical adherents to these faiths also are in constant


conflict with devotions to lesser “gods” or value centers: the perennial
“gods” of race, nation, caste, and class, among others.24 This book was
not written as a call for conversion to radical monotheism. The underly-
ing thesis, rather, is that all law necessarily involves making value judg-
ments; and that all value judgments derive from commitment to some
center and sometimes overlapping or conflicting multiple centers of
value.
Contemporary religious communities that share the underlying faith
and ethics of radical monotheism can and do evaluate societal condi-
tions and existing laws accordingly. Are the legitimate interests of all
adequately protected or provided for under existing social arrange-
ments? To what extent does our society provide a genuine “safety net” for
those who are vulnerable or at risk? Are some left out of the benefits
enjoyed by others, or unfairly disadvantaged by bearing more than their
share of societal burdens? Adherents of inclusive, secular humanistic
faith and ethics ask similar questions.
Biblical law, of course, does not tell us how to resolve modern social
problems. But biblical law may have contemporary relevance in at least
two ways. It can provide some basis for evaluating the kinds of arrange-
ments and programs for aiding the poor and other disadvantaged indi-
viduals and classes of persons that obtain in contemporary society. And,
even though particular biblical laws may have little or no direct applica-
tion in the modern world, the ideal or model community toward which
they point can inspire contemporary efforts to achieve a society—if not
a world—in which the basic welfare interests of all, even those of low
degree, are protected and affirmed through appropriate public policies
and legislation.

24
Such tendencies also appear in many biblical texts, necessarily in conflict or tension with
more inclusive expressions of faith and ethics. See, e.g., Deut. 20:10-18; Ps. 137:7-9; and
Isa. 13:1-20.
Concluding Observations

Now this is the commandment— the statutes and the ordinances— that YHWH
your God charged me to teach you to observe in the land that you are about to
cross into and occupy, so that you and your children and your children’s children
may fear YHWH your God all the days of your life, and keep all his decrees and
his commandments that I am commanding you, so that your days may be long.
Hear, therefore, O Israel, and observe them diligently, so that it may go well with
you, and so that you may multiply greatly in a land flowing with milk and
honey, as YHWH the God of your ancestors, has promised you. Hear, O Israel:
YHWH is our God, YHWH alone. You shall love YHWH your God with all
your heart, and with all your soul, and with all your might. Keep these words
that I am commanding you today in your heart.
Deuteronomy 6:1-6

It is one of the oldest sociological generalizations that any coherent and viable
society rests on a common set of moral understandings about good and bad,
right and wrong, in the realm of individual and social action. It is almost as
widely held that these common moral understandings must also in turn rest
upon a common set of religious understandings that provide a picture of the
universe in terms of which the moral understandings make sense.1

This chapter does not attempt to summarize the particular, substantive


finding reported in the preceding chapters. Chapters One and Two
already include such summaries,2 and Parts II and III both conclude with
chapters reflecting upon the possible relevance of biblical laws for con-

1
Robert N. Bellah, The Broken Covenant: American Civil Religion in a Time of Trial (Seabury
Press, 1975), p. ix.
2
See Chapter One, Section C and Chapter Two, Section D.
220 Justice and Compassion in Biblical Law

temporary law and social policy.3 Readers, of course, will draw their own
conclusions as to the meaning and relevance of biblical law. A few
concluding observations, however, may be appropriate.
It is surprising how many biblical laws can aptly be described by terms
familiar in contemporary Anglo-American jurisprudence. Several of
these laws fall within the framework of what now would be called civil
law. Thus we find biblical laws relating to contracts, torts and remedies,
and the disposition of property, both by inheritance and by bequest.
Many other laws fit more into the category of criminal laws. Most, though
not all of these laws, define what would now be designated as capital
crimes or offenses. And a great many laws can best be characterized as
social legislation.
A number of laws and narratives refer to contractual agreements
between persons (or “parties”) in biblical times. These agreements
include several features similar to those familiar in modern contract
jurisprudence, such as “consideration” and offer and acceptance or
“meeting of the minds.” Many more biblical texts describe or set out
a variety of “tort” laws. The collection of tort laws found in the
Covenant Code in the Book of Exodus turns out to have been orga-
nized largely along lines quite similar to modern legal concepts, such
as injuries to persons, damages to property, and negligent as well as
reckless or intentional torts. As in modern tort theory, intentionally
tortuous conduct was subject to multiple or punitive or damages.
Although no biblical laws provide for making wills with the kinds of
formalities required in modern jurisdictions, such as written documents,
signed by testators and certain numbers of witnesses in their presence
and in the presence of each other, certain biblical narratives describe
procedures that clearly are in the nature of bequests or testamentary
disposition of property. And several laws provide specifically for what
now is called intestate succession.
The Bible contains many criminal laws. Some of these are illustrated in
a series of what may be called trial scenes. Concern for both justice and
compassion are implicit in numerous laws and admonitions calling for
judges to exercise impartial judgment, and assure the equal protection
of the laws, without regard to the standing or status of the persons before
their courts. Although modern opponents and proponents of capital
punishment both often invoke the authority of certain biblical texts,

3
See Chapters Seven and Nine.
Concluding Observations 221

these texts seldom stand for the exact propositions they are cited to
prove. Clearly many biblical texts do call for the execution of persons
who have committed certain types of offenses. However, a significant
number of biblical laws provide what can aptly be described as due
process protections for the accused. These laws implicitly, and often
explicitly, affirm the value of human life, and reflect very serious con-
cern to prevent the execution of innocent persons.
Biblical laws often have to do with providing for the well-being of both
the larger community and those individuals who in one way or another
may be at risk or vulnerable. Such laws can appropriately be character-
ized as social or social welfare legislation. Many of these laws have to do
with protecting such persons from oppression or mistreatment by those
with wealth or other forms of power. Several protected classes can be
identified. Many other laws call for affirmative actions: that is, persons in
the larger community who could do so, were required to assist others
who were unable to provide for their own needs, such as the poor, resi-
dent aliens, orphans, widows, and slaves.
Biblical scholars are generally unfamiliar with such modern legal
concepts and categories as contracts, torts, wills, intestate succession,
equal protection, due process, affirmative action, and social legislation.
These categories are not identified by such terms in the biblical texts;
however, they appear to be useful and accurate ways of describing what
is to be found in much of biblical law. That this is the case suggests that
those involved in developing the law in biblical times did so with under-
standings and concerns that often resembled those of legislators and
judges in later and modern times.
As has been suggested throughout this book, it is not feasible (nor
would it likely be desirable) to invoke or apply biblical laws directly in
modern contexts or cases. Yet biblical law may be more relevant for con-
temporary reflections on law and social policy than has been generally
assumed.
Three distinguishable types of biblical law have been examined here:
civil law, criminal law, and social legislation. Each type of law, implicitly,
and often explicitly, affirms the value of individual interests as well as the
well-being of the larger community. Particular laws attempt to adjust
competing or conflicting interests in ways that are both fair and also com-
passionate: for instance, by remedying the consequences of wrong-doing,
deterring would-be offenders, protecting the innocent accused, and pro-
viding for the basic needs of those unable to do so for themselves. These
laws— with certain notable exceptions— assume or assert the equal and
222 Justice and Compassion in Biblical Law

valued status of persons before God and, therefore, also their value and
equality before the law. In biblical times, as in our own time, these stan-
dards and goals were never fully achieved. Yet they can and should con-
tinue to serve as guidelines for both legislatures and courts.
Such guidelines are much needed in our time, given the normative
confusion which characterizes contemporary Western culture. Currently
prevailing ideologies of moral relativism (whether modern or “post-
modern”) and self-interest (whether individualistic or some genre of
collectivist)4 underscore the absence of understandings of, and commit-
ments to, more transcendent and inclusive beliefs and values.5 Biblical
law may offer important insights as to such matters in our time.

4
See present author’s articles: “Normative and Ostensibly Norm-Neutral Conventions in
Contemporary Judicial Discourse,” 14 Legal Studies Forum 107–39 (1990), and “Normative
Analysis in Judicial Determination of Public Policy,” 3 J. of L. & Relig. 77–115 (1985).
5
See Introduction to Part III, and Chapter Nine.
Index of Biblical Quotations and Citations

Only those quoted or discussed in the main text or in footnotes are included in
this index.

Old Testament or 30:25-36 12


Hebrew Scriptures 30:25-43 22
31:14-16 33
Genesis 35:23-26 30
37:29-33 65 n.5, 137 n.56
1:26-27 157 Chapter 38 40, 200
4:14 83 38:8 40
4:15 83, 144, 154 38:24-25 63
4:17 83 38:24-26 64–5
4:23-24 144 38:28 64
Chapters 6–9 84 39:11-18 65 n.5
6:5 84 n.17, 149, 154 48:5-6 30
9:5-6 113–14 & n.129, 48:21-22 53
122–3, 124 n.168, 49:1-33 30
158
9:8-17 219 n.23 Exodus
15:2-4 32 & n.20, 56
16:1-3 30 20:1–23:33 2, 15, 23, 89-95
16:4-6 31 20:4-5 145
16:11 31 20:7 139
16:15-16 31 20:12 93
18:16-33 161 20:14 97, 103
18:16–19:25 84 20:16 139
18:23 153 20:24–23:19 15 n.24
18:23-25 74 n.5, 161 Chapters 21–22 3
18:32 74 n.5 21:1-6 10, 198, 206–7
19:4-11 105 21:1-11 10, 22
21:9-14 31 21:7 211
24:36 52 21:7-11 10, 209–10
25:5-6 52, 55 21:8-9 210
25:29-34 7, 11, 22, 49 21:10 210 n.121
29:15-30 12 21:11 211
29:21-30 22 21:12–22:15 15, 23
30:3-13 30 21:12 16, 24, 102, 123
224 Index of Biblical Quotations and Citations

21:12-13 116, 129 22:7-11 13–14


21:12-14 23, 89–90, 118, 22:7-13 15, 24
129, 158, 160 22:8 19, 24
21:12-32 15-16, 23 22:8-15 19
21:12–22:27 15 22:9 19, 24
21:13 107 22:10-11 20, 24
21:13-14 108, 123 22:12 18, 20
21:14 16, 108, 130–1 22:13 20, 24
21:14-17 24 22:14 18
21:15 16, 120, 160 22:14-15 15, 20, 24
21:15-17 23, 78, 93 22: 15 24
21:16 16, 93. 96, 118, 22:16-17 24 n.30
155. 160 22:18 78, 94–5, 100,
21:17 16, 103, 119 119, 155
21:18–22:15 15, 24 22:18-20 24
21:18-19 7, 16 22:19 94–5, 103, 119,
21:18-20 93–4 160
21:18-25 15 n.25, 23 22:20 94, 109, 119, 121
21:18-32 15, 17 22:21 181
21:20 79 22:21-24 94
21:20-21 16-17, 78–9 22:21-28 39
21:22 15 22:22-24 182
21:22-24 158 22:25 11, 178
21:22-25 17, 23, 78, 90–1, 22:25-27 10, 22
102, 120, 134, 149, 22:26-27 179
155 22:28 101 n.84
21:23 24, 103 23:1-2 140
21:23-25 17 n.31, 146–9 23:3 76, 163, 177
21:26-27 15, 17, 204 23:4-5 21
21:28-32 14, 17, 78, 91–2, 23:6 163, 177
120, 134, 158, 160 23:6-8 76
21:29 91 23:7 74, 127, 135 n.29,
21:29-32 23–4 160
21:30 17, 92, 151 23:9 181
21:32 18, 79 23:10-11 192
21:33–22:15 15, 18, 24 23:12 181, 203
21:33-34 15, 18, 23 34:6-7 145
21:33-36 15, 18 34:17-25 2
22:1-15 15 34:17-28 88–9
22:1 15, 19, 24, 66, 94 35:2 70
22:2-3 15 n.25, 19 n.40, 92 35:2-3 122
22:4 15, 19, 24, 94 35:3 115 n.135
22:5 9, 15
22:5-6 18, 24
Leviticus
22:5-17 94
22:6 15-23 5:1 143, 163
22:7 19, 24, 135 5:7-13 179–80
Index of Biblical Quotations and Citations 225

6:1-7 21 24:22 76, 182


14:21-32 180 Chapter 25 42 n.66, 44–5, 192,
Chapters 18–26 2, 99–106 196, 198
18:6-18 104 25:1-7 192
18:21 100 25:5 192
18:26-30 77 n.9 25:6 192, 203
19:9-10 187 25:6-7 194
19:12 139 n.42 25:8-11 194 n.64
19:13 11, 22, 184 25:8-17 193
19:14 184 25:11-12 193
19:15 76, 163 25:15-16 44
19:18 84 n.15, 212 25:20-22 192
19:20 139 25:23 44
19:20-22 104, 120, 139 25:25-28 45, 196
19:31 100–1 25:35-37 11, 178, 196–7
19:33 181 25:38 178, 197
19:33-34 76 25:39-40 197
19:34 181 25:39-43 210
Chapter 20 104 25:39-55 197, 204
20:1-5 100–1, 120-1, 25:41-42 198
158 25:43 197
20:2 77 25:44-46 202
20:6 100 25:47-55 198, 210
20:9-10 78, 103, 119, 160 27:16-25 45
20:10-12 104 27:20 45 n.80
20:11-12 121, 160 27:28 45, 46 n.82
20:12 105
20:13 105, 121
Numbers
20:14 104–5, 121, 125
n.171 3:38 114, 122
20:15-16 78, 103, 119, 160 5:5-10 21
20:27 78, 100, 119 5:11-31 78 n.14
21:6-7 106 15:14 77
21:9 105, 121 15:15-16 77, 181
23:22 187 15:32-36 70, 122
24:10-11 69, 101 15:34 70, 115
24:10-16 101–2 15:35-36 115
24:10-23 69–70, 121 Chapter 16 114
24:12 69, 100 16:1-49 122
24:16 70, 77, 101 18:1-7 114
24:17 102–3, 123, 18:7 122
149–50 18:21-22 114 n.131
24:18 20, 149 n.74 18:22 122
24:19-20 102, 146, 148–9, Chapters 22–24 12, 22
155 22:17 12
24:21 20, 102–3, 123, 24:10-11 12
149–50 24:12-13 12 n.14
226 Index of Biblical Quotations and Citations

Chapter 27 28, 34–5, 39, 13:6-11 109–10, 121


55–7, 59 13:11 125
27:1-7 33 13:12-17 137
27:1-11 29 13:12-18 110–11, 121
27:8 33 13:13 111
27:8-11 25, 29, 34 n.29, 13:14 137
55, 57 13:17 110
27:9 41 14:21 187 n.47
Chapter 35 115, 123, 133–4, 14:28-29 173, 191, 193
136, 150 15:1-6 195
35:6-34 115, 118, 160 15:4-5 194
35:9-34 123 15:7-11 165, 194–5
35:12 136 15:8-9 195
35:13 133 15:12 207
35:15 77 15:12-15 173
35:16-18 115–16, 134 15:12-18 198–9, 207
35:20-23 116 15:13-14 207–8
35:24 136 15:15 208
35:26-28 117 15:16 209
35:30 136, 141, 144, 162 15:16-17 207
35:31-32 123, 124 n.168, 15:17 173
151 15:18 208
35:33-34 124 16:9-15 188–90
Chapter 36 33–5, 59 16:14-5 189
36:1-4 46 16:18-20 74
36:6 35 17:2-5 78
36:8-9 34 17:2-7 111, 119, 121,
137, 160
17:4 137
Deuteronomy
17:4-6 111
1:16-17 73 17:6 137, 140, 162
4:41-43 132–3 17:7 125, 137, 143, 163
Chapter 5 2, 95–9 17:8-9 138
5:8-9 145 17:8-12 112
5:11 139 17:12 112, 121, 125
5:17 80, 82–3 17:13 126
5:18 97 18:6-8 190
5:20 139, 142 18:20-22 111, 121
6:1-6 219 Chapter 19 150
10:17-18 75 19:1-3 131
10:18-19 181 19:1-13 131–2
Chapters 12–19 2, 95, 106–12 19:4 107
12:2-24 190 19:4-10 160
13:1-5 109, 111 n.124, 19:4-13 107–8, 115, 118,
121 160
13:1-18 160 19:5 107
13:5 125 19:5-6 131
Index of Biblical Quotations and Citations 227

19:6 108, 131 25:1-2 135, 152


19:10-11 108 25:2-3 20
19:13 124 25:3 152
19:15 140 n.45 25:5 40
19:16-18 138 25:5-10 40, 199, 201 n.89
19:16-21 72, 78, 112, 121, 25:6 34 n.28, 40 n.54,
138, 146, 148, 155, 41 n.58, 199
158, 163 25:7-9 40
19:19 112 25:9 210
19:19-21 142, 148 25:11-12 151 n.81
19:20 126 25:12-18 205
Chapters 20-25 2, 95–9 Chapter 26 2, 106–12
21:1-9 124 26:12 191
21:7-9 125 26:13-15 191
21:15-16 52 27:1-3 127
21:15-17 47–51, 59, 97 27:8 127
21:18-19 78 27:18 184
21:18-20 141 27:19 176
21:18-21 96–7, 120 28:1-14 109
21:21 125–6 28:15-68 110
22:1-3 20 31:9-13 128
22:8 21, 23 32:35 84
22:13-21 78, 97–8, 112
n.125, 120, 136
Joshua
22:13-27 97–9, 160
22:15 136 7:1-25 145
22:22 98, 119, 125 11:23 25
22:22-23 126 13:1–19:51 25
22:22-27 78, 139 13:24-28 30
22:23-24 104, 120 17:3-6 28, 33
22:23-27 98–9, 119–20 19:24-31 30
22:24 125 Chapter 20 132, 135–6
22:25 98 20:1-9 132
22:25-27 104 20:6 & 9 135 n.30
22:26 99 Chapters 21 132–3
23:15-16 181, 203
23:16 204
Judges
23:24-25 179 n.18
24:6 11, 179 4:4-5 73
24:7 95–6, 118–9, 125, 11:1-2 29, 31
160, 181 11:34-40 210
24:10-13 10, 22 17:1-4 39 n.47
24:14-15 11, 22, 183
24:16 145, 160–1
Ruth
24:17 179, 182, 185
24:19-22 187 1:12-13 43
25:1 20 1:22 37
228 Index of Biblical Quotations and Citations

2:1-23 188 8:1-6 38


2:23 38 14:5-6 145–6
Chapter 3 43
3:1, 3-4 201 1 Chronicles
3:13 201
4:3 36–7, 41 2:34-41 32
4:4-6 41 5:1 50
4:5 36 nn.35 & 36, 37 6:1 133
4:9 36 nn. 35 & 36, 37 6:16 133
4:14-15 202 6:57-60 133
4:15 43, 200 n.85 6:66-70 133
4:17 43
2 Chronicles
1 Samuel 21:1-3 29
21:2-3 53
25:14-35 13
25:3-4 146
28:3 94
28:9 94
28:3-25 94, 119 n.152 Nehemiah
5:1-15 46 n.85
2 Samuel
Job
12:1-6 19
12:1-15 65–6 29:15 184
12:7-9 19 n.41 29:16-17 183 n.35
12:13-14 145 n.60 31:13 184 n.39
13:23-29 66 42:10-11 195 n.66
13:34-38 66 42:15-16 54
14:1-11 66–7, 83
14:12-24 66 Psalms
14:28-33 66
25:13 34 n.28
1 Kings
Proverbs
1:1-4 27
1:1-31 131 n.13 12:17 142
1:49-53 130–1 13:8 92 n.49
2:5-6 131 n.13 13:22 55
2:13-25 27, 131 n.13 14:21 195 n.66
2:28-29 130–1 14:25 142
2:28-34 131 14:31 180 n.25
3:16-28 67 15:25 38–9, 182 n.33
11:7 100 17:2 29, 32 n.20, 56
21:1-16 67–8 18:5 61, 74 n.4
18:17 138
18:18 138 n.57
2 Kings
19:5 143
Chapter 4 57 19:9 143 n.53
4:1-37 38 19:14 28, 34 n.28
Chapter 8 57 19:17 195 n.66
Index of Biblical Quotations and Citations 229

19:26 120 Amos


20:20 119 n.149 2:8 179
20:22 84 n.15 Chapter 5 111
21:28 143 5:11 178
22:9 186 n.45 5:14-15 83–4
22:16 180 n.25, 195
n.66
Jonah
22:22-23 177
23:10 34 n.28 3:10 111
23:10-11 183
28:17 83 Micah
29:7 76 n.7, 177 n.6 2:1-2 39
29:14 76 n.7 2:9 39
29:21 32 n.20 6:8 v
31:9 177 n.6, 183 6:11: 179 n.19
n.35
Malachi
Ecclesiastes
3:5 184 n.38
6:3-5 17 n.30
Old Testament Apocrypha or
Isaiah Deutero-Canonical
1:16-17 182 Tobit
1:23 182 n.35
4:7-8 180 n.21
4:14 184 n.38
Jeremiah 5:3-15 12
5:1 74 n.5 5:14-15 9, 12
5:28 180, 182 n.35 5:14-16 22
Chapter 7 68 6:10-11 34–5
22:13 184 6:11 46 n.83
22:16 76 n.7 6:12 35
Chapter 26 68 7:12-14 13
26:7-24 68–9 7:14 35 n.34
26:11 68 8:20-21 35 n.34, 38
26:12-15 69 14:13 46 n.83
26:14-15 153 14:13-14 34
26:16-19 69
26:20-24 69 Judith
32:11-14 44 8:2-3 55
8:7 35, 55–6
Ezekiel 16:21 56
16:23 204
18:21-23 85 16:24 25, 55–6
22:30 74 n.5
44:5–46:18 46 Wisdom of Solomon
46:16-18 46–7
47:13–48:29 25 1:16–5:23 85 n.21
230 Index of Biblical Quotations and Citations

Sirach (Ecclesiasticus) 20:8 11


20:13 13
3:12 186 n.44
4:9-10 185 n.35
27:30-28:7 85 Mark
28:1 84 n.15
11:25-26 85
33:20 53
12:38-40 39
33:24 7, 153
34:22 184
35:14 182 n.33 Luke
6:30 195 n.66
Susanna 6:37 85
12:13 29, 50
20-21 71
12:33 195 n.66
28-62 70–2
14:12-14 184 n.40
34-40 63, 139
14:13 186 n.45
41 71
15:11-32 50, 54
48 139
15:12 50
48-50 71
16:11 213 n.5
51-52 139
16:19-31 186 n.45
51-59 141
19:8 19
52-58 139
20:46-47 39
52-62 112 n.125
60-62 71–2
62 142 John
8:3-11 119
Bel and the Dragon 8:5 86
8:7 86
8 & 21-22 121 n.158

Romans
New Testament
1:26-27 105 n.106
Matthew 12:19 84

1:18-19 120 n.153


2 Corinthians
5:21-22 85
6:14 85 13:1 140 n.45
7:1-2 85
18:35 85
Philemon
20:1-16 11, 13
20:1-2 13 10-21 203 n.98
Index of Names

Names listed here include those found in footnotes on the pages


indicated.
Names of Biblical persons are in italics.

Aaron 106, 114 Bennett, John C. 174


Abel 83, 123 Bentele, Ursula 161
Abigail 13 Berkowitz, Beth A. 87
Abishag 27, 131 Billah 30, 50, 105
Abraham, Abram 27, 31–2, 52, 74, 161, Blackstone, William 32
213 Blackwell, Donald A. 143
Absalom 65–7, 83, 105 Blenkinsopp, Joseph 123, 175, 205,
Adonijah 130–1 214
Ahab 61 Blidstein, Gerald J. 82, 123
Ahroni, Reuben 50–1 Block, Arnold 29
al-Hibri, Azizah 172 Blumberg, Craig L. 173
Alt, Albrecht 88 Blumenson, Eric 216
Alter, Jonathan 81, 163 Boaz 36–7, 41–3, 201–2, 210–11
Amaker, Norman C. 168 Boecker, Hans Jochen 63, 150, 177,
Amos 178–80 185, 203–4
Appu 49 Bohm, Robert M. 88
Atkinson, Thomas E. 52 Bounds, Elizabeth M. 168
Azarias 12, 35 Bradford, William 167
Brewster, William 166
Baab, Otto J. 31, 34 Brin, Gershon 177–8, 180
Bailey, Lloyd R. 82–3, 86, 125–6, 162 Brooks, Elizabeth A. 155
Balaam 12, 22 Brown, A.M. 33
Balak 12, 22 Bultmann, Rudolf 212
Barabbas 86 Burrows, Millar 27, 33, 36, 38–9, 185,
Barmash, Pamela 75, 124, 130, 146 203, 205
Barrett, Edith J. 168
Bathsheba 19, 65, 98 Cabana, Donald A. 81
Beattie, D. R. G. 37, 41, 43 Cain 83, 123, 144, 154
Bedau, Hugo Adam 81, 161 Campbell, Edward F., Jr. 32, 36–7, 42
Bellah, Robert N. 167, 169, 174, 215, Carmichael, Calum M. 48, 88, 90,
219 109, 140, 151, 211
Ben-Barak, Zafrira 34, 55 Carrier, Laura 214
Benjamin, Don C. 68 Carrington, Frank O. 81
232 Index of Names

Cash, W. J. 157 Fletcher, George P. 175–6


Charlesworth, James H. 53 Fletcher, Joseph 174, 212
Cherry, Conrad 167 Floyd, Timothy W. 86
Chodorow, Adam S. 180 Frazer, James G. 47, 49
Clark, Ramsey 82 Freedman, David Noel 32
Coffin, William Sloane 174 Freedman, H. 115
Cohn, Haim Heymann 87, 128, 143, Fromm, Erich 215–16
177, 180–2, 205
Collins, J. J. 25 Gaffney, Edward McG. 86, 147, 169,
Conrad, John P. 81 185, 189, 213
Coogan, Michael D. ix Gardner, E. Clinton 166, 213, 217
Cook, Anthony E. 170 Garvey, Stephen P. 86
Cook, Fay Laney 168 Gaster, Theodor H. 49, 91, 113, 189
Corbin, Arthur Linton 9–13 Gervitz, Stanley 50
Costanzo, Mark 88, 148 Goldin, Judah 50
Cranfield, C. E. B. 26 Golding, Martin P. 87
Crenshaw, James L. 150 Good, Edwin M. 68, 81, 89, 91,
93–4, 97, 103, 105, 110, 112,
Dake, Norman P. 123 114, 159
Daniel 71 Gordon, Cyrus H. 27, 32–3, 51
Daube, David 26, 33, 36, 41–4, 88, Gould, John M. 47
104, 140–1, 146, 201 Gowan, Donald E. 173, 175, 216
David 13, 19, 65–7, 83, 98, 105, 131, Graham, Hugh Davis 159
145 Greenbaum, Susan 161
Davies, Eryl W. 39–42, 48 Gross, Samuel R. 81, 161
Davis, Michael 149 Grunfeld, Dayan I. 29, 39
Deborah 73 Gurr, Ted Robert 157
de Vaux, Roland 27, 37, 51–3, 87, Gushee, David D. 174
110, 130, 133
de Vries, Barend A. 168, 199 Haas, Kenneth C. 81
Dickens, Charles 167 Hackney, Sheldon 157
Dorff, Elliot N. 87, 185 Hagar 30–1
Draper, Thomas 81 Hamilton, Jeffries M. 173–4, 176, 181,
Duffy, Brian C. 155 204, 216
Dworkin, Ronald M. 170 Handler, Joel F. 167
Hanks, Gardner C. 83, 86–8, 163
Edna 13 Hanson, Paul D. 185
Eliezer 21 Harrelson, Walter 82, 89, 183
Elimelech 36–7, 41, 43 Harrington, Michael 167, 195
Elisha 38 Hart, John 44
Esau 11, 22, 49 Hawthorne, Nathaniel 83
Ezekiel 46–7, 85, 121, 146 Hecht, N. S. 173
Herzog, Isaac 52
Fager, Jeffrey A. 160, 194, 216 Hill, Samuel S., Jr. 157
Falk, Ze’ev W. 75, 77, 90, 92, 97, 116, Hillel 176
141, 151, 185 Hiram 11
Fensham, F. Charles 27, 39 Hoffman, R. Joseph 68
Index of Names 233

Hosea 210 Levine, Baruch A. 40, 44, 68, 79, 86,


Hubner, Joshua Hillel 162–3 91–3, 97
Hudson, Charles 157 Levinson, Barnard M. 189
Limburg, James 174, 214
Inciard, James A. 81 Lind, Millard 82, 114
Isaiah 180 Lipinski, E. 43
Ishamael 30–1 Lowenthal, Robin 163
Ivins, Molly 168, 195 Lytton, Timothy D. 161

Jackson, Bernard S. 147, 178 Maguire, Daniel C. 174


Jacob 11, 22, 33, 49, 53 Mahlon 37, 43
Jain, Monika 141, 162 Maine, Henry Sumner 51–2
Jehoshaphat 53 Malchow, Bruce V. 174
Jephthah 31, 210 Malina, Bruce J. 173, 179
Jeremiah 68–9, 121, 135, 138, 146, Manasseh 106
180 Mannion, Elizabeth 161–2
Jesus 11, 13, 39, 50, 85–6, 176, 212–13 Marshall, Christopher D. 54
Jezebel 67–8, 140 Marx, Karl 177
Joab 66, 130–1 Maston, T. B. 74, 174
Joakim 70–1 Mathews, Shailer 212
Job 53–5, 167, 184, 195 Matthews, Victor H. 68
Johnson, James Turner 189 May, G. Herbert ix
Jonathan 105 Mays, James L. 16
Joseph (OT) 49, 53, 64–5, 191 McCarter, P. Kyle 16
Joseph (NT) 120 Medina, Michael 80
Judah 40, 64, 200 Meek, Theophile James 88, 91, 99
Judd, Daniel K. 80, 96 Megivern, James J. 80, 86, 113,
Judith 55–6, 204 154–5
Mendelsohn, Isaac 49
Kahn-Fogel, Nicholas A. 141 Mendenhall, George E. 89, 150–1
Kastely, Amy Hilsman 9–12 Metzger, Bruce M. ix
Keeton, W. Page 9, 13–14, 18, 22, 64 Micah 69
Kent, James 47 Michal 98
King, Martin Luther, Jr. 170 Midgley, Mary 170
Kirschenbaum, Aaron 87 Molech 100–1, 120
Klein, Hyman 29 Moses 29, 46, 69–70, 83, 101, 128, 213
Koch, Klaus 88–9 Mount, Eric, J. 216
Muffs, Yochanan 38–9
Laban 12, 22, 33 Muntingh, L. M. 56
Lacy, Toni 161
LaFave, Wayne R. 89–90, 92, 103, 107, Naboth 67–8, 140
116 Naomi 36–8, 42–3, 57, 196, 201–2
Lamech 83, 144 Napier, B. Davie 47
Leah 30, 33 Nasuti, Harry P. 181
Leggett, Donald A. 33, 36–7, 40–1, Nathan 19, 65–6, 145
43, 64, 201, 210 Neascu, E. Dana 170
Levi, Gershon 89 Neuman, Abraham A. 52
234 Index of Names

Newman, Louis E. 11, 87, 147, 216 Reuben 50, 105


Niebuhr, H. Richard 157–8, 171, 215, Richardson, Alan 26, 47
217 Robinson, John 166
Niebuhr, Reinhold 169, 174 Rosenberg, Merker 86–7, 141, 146–7
Nissim, Joseph 29 Rosenberg, Yale L. 86–7, 141, 146–7
Noah 122–3, 154, 157 Rosett, Arthur 185
Noonan, John T. Jr. 175 Rowley, H. H. 55
Noth, Martin 128 Russell, Gregory D. 81
Ruth 36–8, 41–3, 196, 201–2, 210–11
Obed 42–3
Ogletree, Charles J. 163 Safrai, Shmuel 39
Ogletree, Thomas W. 168 Sarah, Sarai 31
Olasky, Marvin 168 Sarah (Apoc.) 12, 34–5
Olson, Elizabeth 163 Sasson, Jack S. 36, 38, 42
Onan 40 Saul 94, 119
Onesimus 203 Schottroff, Luise 182
Schreiber, Aaron M. 123, 140
Patrick, Dale 14, 41, 48, 199, 209 Schroer, Silvia 182, 200
Paul 84, 105, 140, 203 Scott, Austin W. 92
Perillo, Joseph M. 10 Sealey, Raphael 166
Perry, Michael J. 171, 216 Segal, Ben-Zion 89
Philemon 203 Sheshan 32–3
Phillips, Anthony 89, 93, 96–7, 113, Shipler, David K. 174
142, 147 Shriver, Peggy L. 168
Pilch, John P. 173, 179 Simson, Gary T. 86
Pope, Marvin 54 Smith, Adam 214
Porten, Bezalel 25, 52–3, 55–6 Smith, Morton 68
Posner, Richard A. 170, 214 Snaith, Norman H. 46
Powers, David S. 29 Solomon 11, 27, 67, 83, 130–1
Pressler, Carolyn 96, 98 Sonsino, Rifat 181
Primovatz, Igor 123 Spitz, Elie 87, 126, 141, 147
Pritchard, James B. 31, 39 Stackhouse, Max L. 171
Putnam, Constance E. 81, 161 Stassen, Glen H. 80–1, 83, 85, 154
Steffen, Lloyd 81, 163
Rachel 30, 33 Stern, Craig A. 132
Rackman, Emanuel 52 Stetson, Brad 171
Radelet, Michael L. 81, 161 Stone, Michael E. 26
Raguel 12–13, 35, 38 Stulberg, Robert B. 188
Rand, Ayn 165, 170, 214–15 Sturm, Douglas 215
Raphael 12, 35 Susanna 70, 72, 112
Rasor, Paul 11, 168–9, 175, 179, 205 Szubin, H.Z. 25, 52–3, 55–6
Raspberry, William 161
Rauschenbusch, Walter 212 Tamar 40, 64–5, 200–1
Rawls, John 170 Teles, Steven M. 168, 174
Recinella, Dale S. 74, 80, 83, 140, 148, Thies, Stanley Carlson 174
155, 159–60, 163 Thomas, D. Winton 30, 47, 49
Redekop, Vernon W. 88 Thompson, Dorothy 32, 40–1, 56
Index of Names 235

Thompson, Thomas 32, 40–1, 56 Westbrook, Raymond 27–8, 34–7,


Tigay, Jeffrey H. 105 40, 42, 44–7, 50, 52, 59, 68, 79,
Tilson, Everett 157 87, 89, 91–2, 98, 104, 117, 121,
Tobias 12, 22, 34–5, 38 146–7, 151, 194, 199
Tobit 22, 34–5, 38 White, Welsh 155
Trible, Phyllis 210 White, William 166
Wicker, Tom 163
Uriah 19, 65, 145 Willis, John T. 173
Wilson, John T. 150
Van den Haag, Ernest 81 Wolfson, Susan A. 177, 215, 217
Van Selms, A. 55 Wright, Christopher J. H. 14, 59, 174
Van Seters, John 28, 30–1, 39 Wright, Julian H., Jr. 83
Vellenga. Jacob J. 80, 85–6
von Rad, Gerhard 30, 32, 41, 99 Yaron, Reuven 29, 178, 204
Young, Robert L. 157
Ward, Harry M. 166
Watson, Alan 166 Zachaeus 19
Weinfeld, Moshe 166, 186, 209 Zakovitch, Yair 208
Weingreen, J. 29, 47, 68 Zechariah 176
Weinstein, Jack B. 171, 176, 194 Zedekiah 209
Weir, C. J. Mullo 47, 53 Zehr, Howard 150
Wellhausen, Julius 88, 133 Zeitlin, Solomon 52
West, Steven A. 81, 141 Zelophehad, daughters 29, 33–5, 46
West, Valerie 160 Zilpah 30
Index of Subjects

adultery 65, 78, 86, 97–9, 103, 121 apostasy 108–9, 121
n.156, 125, 159 see also allotheism and sacrificial
betrothed slave 104, 120, 139 offerings
betrothed virgin 98–9, 120, 125 asylum, place of 129–30
married woman 71, 98, 119 see also cities of refuge and horns of
pre-nuptual 97–8 the altar
affidavit see oaths avenger of blood 66, 108, 117 &
affirmative actions and duties n.144, 124, 129, 131
185–218 avenging kinsman 117, 136
care, duty of or to see under see also avenger of blood and
tort laws kinsman/redeemer
Levites see Levites
orphans see orphans bankruptcy 197 n.71
persons with disabilities see persons banishment see under criminal
with disabilities penalties
poor see poor bequests see wills
rescue, duty to see under tort laws bestiality see buggery
sojourners see sojourners biblical law codes 2, 87–8
allotheism 78, 94, 99–100, 107–11, birthright 26–7, 47–51, 59
119, 121, 125, 137, 158 blaming the victim 167 & n.10
see also under sacrificial offerings blasphemy 67 n.11, 69–70, 77, 101–2,
alternative sentencing 66–7 121
Ancient Near Eastern laws blood guilt 117 n.144
Code of Hammurabi 30 n.14, 39, see also guilt offering and innocent
49 n.95, 56, 90 n.43, 96 n.65, blood
146 n.64, 203–4, 208 n.112 bribes 74, 76
common law 28 n.8, 67–8 & n.13, buggery 78, 94, 103, 119
87 n.31, 105 burglary 19 n.40, 92
Hittite 49, 94 n.60, 96 n.65, 99 n.74
Lipit-Ishtar law code 31 nn.16 &17, CC see Covenant Code
49 n.95 capital offenses 80–126
Nuzi 32, 48 n.89, 53 n.112, 56 adultery see adultery
Ugaritic 55–6 allotheism see allotheism
Anglo-American law 14, 20–1, 26, 116 blasphemy see blasphemy
n.137, 132 n.16, 141 n.48 buggery see buggery
Index of Subjects 237

contempt of court see under courts contempt of court see under courts
cursing parents see under parents contract law 9–14, 21–2
defenses 92 n.54 agreement 9, 12, 13, 21–2
excuses 92 bailment 14, 19
homicide see homicide and murder breach 12–14, 19
homosexual intercourse 104–5, 121 consideration 11
incest see incest creditors 10–11
intent element see intent damages 9
kidnapping see kidnapping duress 12
malicious false testimony see under fraud 11–12
testimony and witnesses labor 11–13, 22
mediums see mediums marriage 13
murder see murder misrepresentation 12
sorcery see sorcery offer and acceptance 12
striking parents see under parents pledges 10
wizardry see wizards seals 13
working on the sabbath 76 unconscionable 10 n.3, 22
worship of other gods see allotheism courts 70–2
and sacrificial offerings contempt of see court orders
capital punishment see death penalty court orders, refusal to obey 112,
case law see precedent 125, 159
children 10, 100–1, 158 the “gate” 96, 135, 200
as slaves 209–11 see also judges
see also daughters, parents, and sons covenant
Christian ethics 1, 212 horizontal dimension 96, 102–6
cities of refuge 108, 117, 128–33, 135, vertical dimension 99–102
149–50, 160 with Noah 217 n.23
civil law 3, 7–59 Covenant Code (CC) 2, 74, 89–95
see contract law organization of laws 15–20
see inheritance and wills criminal law 61–4
see tort law criminal offenses 61–2
civil rights 168 n.15 criminal penalties
collateral 10–11, 178–9, 183 banishment 83, 100 n.81,
commercial practices 179 119 n.152
commonwealth 167 fine 98, 143 n.66
community 102–6, 111–12, 199, 216 flogging 152
n.18 lex talionis 146–51
compassion 4–5, 10–11, 16, 21, 110, intentional false testimony 148,
179, 181, 185 n.43, 186, 208, 158
216 mayhem 148–9
compensation see under tort law pregnant married women, injury
concubines 30 n.13, 50, 55, 105 to 147–8, 158
n.101, 210 mitigation of 66–7, 83, 94
conspiracy 139–40 offender only 144–6
Constitution, U.S. 73, 140 n.44, 212 proportionate to offense 149 n.78,
General Welfare Clause 167 152
consumer protection 179 whipping 78, 98
238 Index of Subjects

criminal penalties (Cont’d) notice 127–8


see also alternative sentencing, death witnesses see witnesses
penalty, and sentencing see also protecting innocent accused
guidelines
Critical Legal Studies 170 & n.24 elders see under judges
cross examination 67, 70–1 n.139, Elohim 4
138–9 ephod see lot
cult shrines 102, 106–7, 112, 130 equal justice 175–84
custody 69–70, 101, 115 see also equal protection
equal protection 73–9, 159, 163
D see Deuteronomic Code equal liability 77
daughters 54–5, 97, 105–6, 209–11 lex talionis see lex talionis
see also inheritance by protected classes 75–9, 168 n.15
priest’s daughters 105–6, 121 the poor 75–6, 163, 176–80
death penalty 69, 80–126 resident aliens or sojourners
see also capital offenses 76–8, 163–4, 176, 180–2
biblical rationales for 122–6 servants 183–4
opponents 86, 153–7 slaves 79
proponents 80–2, 86–7, 153–7 widows and orphans 176, 182–3
debtors 10, 22, 197 n.71 women 78
Decalogue see Ten Commandments see also women, legal status of
defamation 139, 142 n.49 see also affirmative actions/duties
deterrence 125–6 evidence
Deuteronomic Code 2, 95–9, 194 circumstantial 139, 162
Deuteronomic Historian 84, 106, physical 64–5 & n.5, 115–16, 134–7,
132, 194 206–7
Deuteronomic Reform 99, 100 n.80, presentation at trial 64–5n.5, 134–5
102, 106–7, 110, 113, 121, 131, virginity, tokens of 78 n.15, 120,
189–90, 194 136–7
development of laws 87, 88 n.34, execution
207–9 innocent persons 159–64
see also modification of laws methods of 68, 70, 86, 115, 125,
discrimination see impartial judgment 156 n.31
distributive justice see under justice only the guilty 159–64
divorce 120 n.153, 211 n.122 exile 66
due process 127–52 see also banishment and fugitive
cities of refuge see cities of refuge, exploitation 11, 178–9, 196
asylum, and horns of the altar see also profiteering
diligent inquiry as to facts 134–9, ex post facto 70, 160 n.58
159–60, 162
explicit procedures 135–9 false charges 74, 160
implicit procedures 134–5 see also under testimony and
equal protection see equal witnesses
protection false prophecy see under prophecy
evidence see evidence feast of booths 188–90
fundamental fairness 129 feast of weeks 188–90
hearing 129–30, 134–9 Fifth Commandment 93
Index of Subjects 239

Fiftieth Year see Jubilee year individualism 167


finality see lot inheritance 26–51, 57
food banks 193 birthright see birthright
foreseeable harm. see under tort laws by daughters 33–5, 59
forgiveness 82, 85, 197 n.71 daughters of Zelophehad 28, 33,
fraud see under contract law 35
freedom of speech 69, 110 by slaves 32–3, 56
fugitive 82–3 by sons 28–33
fugitive slave law 203–4 by sons-in-law 34–5, 38, 57
by widows 26–9, 35–40, 57–8
general welfare 167, 194, 202 disinheritance 31 & n.16
gleaning 186–8, 201 distribution by “the prince” 46–7
ger, gerim see sojourners houses and land 37–9
go’el see kinsman/redeemer inheritable property 27–8, 35–9
goring ox 91–2, 120, 147 n.66, 158 and levirate marriage see levirate
guilt of bloodshed 108 marriage
innocent blood 72, 108, 131–2,
H see Holiness Code 135 n.28, 160
handicap access 184 guilt of 124–5, 132
harlotry see prostitution innocent until proven guilty 72
henotheism 215 intent 116, 128, 159–60, 164
herem 46 n.82, 110–11 inter-vivos gifts 51–6, 58
hired workers see servants intestate succession 29, 33–4
Holiness Code 2, 99–106 see also inheritance
holy 106 Islamic law 29 n.12, 49 n.91, 172 n.28
homicide 89–90, 102–3, 107–8 Israel see Northern Kingdom
culpable negligence 91, 107 n.111
intentional 89, 108 Jerusalem Temple 68–9, 106–7,
negligent 90–2 see also 113–14, 131–2, 189–90
manslaughter see also Deuteronomic Reform
premeditated 89, 158 Jewish ethics 1, 87 n.29, 212
reckless 90–2, 107–8, 160 Jewish law 29 n.12, 52 nn. 107 &
self-defense defense 92 n.52 108, 75 n.6, 87 n.29, 115 n.134,
see also murder 141 n.47, 174, 177 n.9,
homosexual intercourse 104–5, 185 n.43
121 Jubilee year 44–7, 59, 193–4, 196,
horns of the altar 130–1 198–9
see also asylum and cities of refuge Judah see Southern Kingdom
human life, value of 157–9, 164 Judah and Tamar, trial scene 64–5
image of God 122–3, 154, 157–8 judges 138
David as judge 65–7
idolatry see allotheism and sacrificial Deborah as 73 n.1
offerings discretion of 92
impartial judgment 73–9 elders as judges 69–72, 96 n.66,
see also equal protection 136, 200
incest 104–5, 121, 159 priests as judges 45 n.81, 138
indentured servitude 207–8 Solomon as judge 67
240 Index of Subjects

judges (Cont’d) mediums 78, 94, 100, 119


YHWH or God as judge 74–5, 84–5, see also sorceresses and wizards
94 n.61, 100–1, 121, 143, 158, mercy 85, 110
161, 182 see also compassion
juries 68–9, 71, 133 n.22, 135–6 migrant workers see sojourners
jurisprudence miscarriage 17, 91, 147 n.66
biblical 160–1 modification of laws 102–4, 117–22
modern 69, 116 n.137, 214–16 see also development of laws
justice 4, 21, 74, 175–8 Moloch 77, 100
distributive 166 see also sacrificial offerings
divine 74–5 see also under judges moral relativism 169–70
impartial see impartial judgment mothers 67, 96, 136
and equal protection surrogate motherhood 30–1, 43
motive clauses 181, 187 & n.27, 197
kidnapping 93, 95–6, 118–19, 125, as to slaves 187
159 as to sojourners 181–2
kinsman/redeemer 40–4, 183, 196–8, supporting indigent “brother” 197
201–2, 210 murder 108, 118, 156
attempted 108
laissez-faire 167 first degree 89 n.38, 154–5
law and economics theory 214 second degree 89–90 & n,39, 116
levir see levirate marriage n.140
levirate marriage 40–3, 57 n.136, 58, see also homicide
64, 199–202
Levites 113–14, 122, 133, 166, 189–91 Ninth Commandment 142
Levitical priests 138 normative language 199
llex talionis 17, 77–8, 90–1, 112, 135, Northern Kingdom (Israel) 2, 106
154–5 110 n.118, 113
loans 11
interest on 11, 178 n.15 oaths 19–20, 139, 143 n.54, 191
Lord, the 4 open housing 204
lot 101 n.86, 138 n.37 oppression, laws against 178–84, 204
see also exploitation
malicious false testimony see under orphans 182–3, 186–7, 189–92
testimony
malicious false witnesses see under P see priestly tradition
witnesses PC ee Priestly Code
malicious prosecution 67–8 parables 11, 13, 19 n.41, 47 n.87, 50,
manslaughter 107–8, 115–18, 160 54
manslayer 102, 124 n.168 parents
marriage 42 n.63 authority of 96–7
contracts 13 cursing 78, 93, 103, 119, 159
daughters of Zelophehad 46 honor due to 93, 185
inheritance 42–3 striking 78, 93, 120, 159
levirate see levirate marriage surrogate 30–2, 58, 201–2
Mayflower Compact 166–7 testimony by 96–7, 136, 141
mayhem 102 n.89 perjury 112 n.125, 139–40, 143
Index of Subjects 241

Persian Empire 113 prostitution 64–5, 105–6, 121


persons with disabilities 184 protected classes see under equal
Plymouth Colony 166–7 protection
poor 166–79, 186–99 protecting innocent accused 72, 75,
exemptions or privileges 179–80 128, 135
hostility to 167–8 n.12 see also due process
impartial judgment for see equal punishment
protection entire families 144–5
provisions for needs of 166–8 limited to offending persons 145–6
food 186–94 subsequent generations 145–6
other 194–9 see also criminal penalties, death
precedent 68–70 penalty, execution, lex talionis,
presumptions 20, 98–9, 120, 137 n.36 sentencing guidelines, and
innocence of accused 72, 104, 135 vengeance
irrebuttable 91, 98–9, 115–16 purging or purifying the land 123–5
Priestly Code (PC) 2, 77, 112–17,
133 RD see Ritual Decalogue
Priestly tradition (P) 2 RDC see Revised Deuteronomic
priests 113 Code
Aaron as father of 114 radical empiricism 170
High Priest, death of 117, 124 radical monotheism 217–18
as judges see judges ransom 17, 91–2 & n.49, 117 n.144,
prerogatives of 114, 122 123–4, 117 n.144, 147 n.66, 151
primogeniture 51 rape 64–5 n.5, 71, 98, 105
profiteering 197 rechem 19 n.12
see also exploitation see also compassion and mercy
progressive taxes or fees 180 refugees see sojourners
property relational value theory 199
see contracts religious shrines see cult shrines
damage to (see tort law) repentance 85
Jubilee laws 44–7 resident aliens see Sojourners
see also Jubilee Year restitution see under tort laws
kinsman or redeemer of revenge see vengeance
see kinsman/redeemer Revised Deuteronomic
land or “real” property 44 Code (RDC) 2, 100–12, 131
not sold in perpetuity 44 rights
slaves as 79, 149 n.72, 202 conjugal 210–11 & n.121
transfer of 25–59 gleaning see gleaning
see also inheritance and wills human 171–2
women as owners of 37–40 of the poor 76 n.7, 177
see also women, legal status property 179, 185
prophecy of slaves 204–5
false 108–9, 111, 121 Ritual Decalogue (RD) 2, 88–9
in name of other gods 111, 121
prophets 1, 69, 76, 83, 109, 180, 213 sabbath
prosecutorial misconduct 148 n.70, observance of 70
155 rest for sojourners 181, 203
242 Index of Subjects

sabbath (Cont’d) see also social welfare laws and


rest for workers or servants 183, 203 welfare legislation
violations of 70, 115 social welfare laws 173–211
Sabbatical year 59 n.142, 192–3, 203 sojourners 76–8, 163, 180–2, 186–92
sacrificial offerings sons
to other gods 94, 95 n.62, 119, 121, inheritance by see under inheritance
158 ungovernable 96–7, 120, 125, 159
guilt offerings 21, 104 sorceresses 78
Canaanite 106–7 sorcery 94
Moloch 100–1, 120–1 Southern Kingdom ( Judah) 2, 13,
to YHWH 95, 106–7 106, 110 n.118
see also allotheism strangers see sojourners
safety laws 21, 23 Susanna, trial scene 70–2
“safety net” 215, 218
sanctuaries 102, 130 tabernacle see tent of meeting
see also asylum, cities of refuge, cult Talmud 39 n.37, 115 n.134, 140 n.43,
shrines and horns of the altar 141 n.47, 212
self-defense 92 n.152 Temple see Jerusalem Temple
self-interest as basis for ethics 142, Ten Commandments 82, 89, 103, 139
170, 214–15 tent of meeting 114 n.131
sentencing guidelines 144, 160–1 testation see wills
servants 183–4 testimony
indentured see indentured servants by parents 136, 141
wages 183–4 defendant 68, 136
see also under protected classes malicious false 111, 142
Seventh Commandment 97 see also under witnesses
see also adultery see also oaths
sexual assault see rape Third Commandment 142, 143 n.54
Shiloh 69 Third Year tithe 190–3
Sixth Commandment 82–3, 154 tort laws 14–21, 22–4
slaves 79, 104, 139, 149 n.72 bailees 24
“brother” sells self as 197, 202 Book of Exodus 15–21, 23
daughters sold as 209–11 breach of trust 19, 23
debt slaves 205 burglary 92
escaped slaves 181, 203–4 conversion 19, 23
fugitive see escaped slaves damage to property 14–15, 18–21, 24
Hebrew 202–11 damages see under Remedies
humane treatment of 203–4 duty of care 22
manumission 204, 209 n.114 duty to rescue 20–1
as property 79, 202 embezzlement see conversion
providing for when freed 208 foreseeable harm 18, 20–3, 91
time or term of servitude 205, 210 injuries to animals 18–20
wives and children 202, 206–8 injuries to persons 14–18, 21, 23
social contract theory 170, 214 intentional torts 14, 19, 23
social Darwinism 167 negligence 18, 20, 23
social ethics 1, 173–4, 185, 211–13 culpable 18
social legislation 164, 165–218 proximate cause 22
Index of Subjects 243

reckless endangerment 14, 17, first-born sons 49


23–4, 116 Jacob’s 49, 53
remedies 14, 17, 23 Jehoshaphat’s 53
compensation 14, 16–18, 20, Job’s 53–5
22–3, 91–2, 146, 147 n.65 Judith’s 55–6
multiple damages 14, 19, 23 son of the disliked wife 48–9
no fault 18, 24 wisdom writings 85
punitive 14, 21, 23–4 see also Proverbs and Sirach in biblical
restitution 14, 18–21, 23–4 citations index
theft 19, 23 witnesses 139–44
treason 47 n.87, 67–8, 140 n.45 cross examination 71
trials 63–72 duty to testify 143–4
first to throw stones 86, 137, 143,
ungovernable sons see under sons 163
utilitarian theory 215 malicious false 67–8, 71–2, 111–12,
121–2, 125, 138–9, 142, 155,
vengeance 83–4, 144 163
violence 157 n.33 minimum number required 68–9,
vulnerable persons 92 n.52, 165–6, 71–2, 140–1, 162–3
168–9, 175-84, 199, 216 n.18, sequestration 71, 139, 141
218 wizards 78, 100, 119
penalty for consulting 100
wages 12, 183–4 women, legal status of 55, 64–5,
welfare for the wealthy 195 n.66 67, 71, 78, 96 & n.67, 99,
welfare legislation 165–218 136, 141, 200 & n.86, 207,
widows 35–40, 182–3, 186–92 210–11 & n.121
inheritance by see under “workfare” 180
inheritance worship of other gods see allotheism
levirate marriage see levirate and sacrificial offerings
marriage
wildlife 192 Yahwist court history 130
wills 25–6, 51–9 YHWH 4
Abraham’s 52
devisees or beneficiaries 55–6 Zelophehad, daughters see under
double portions 48–51, 53 inheritance and marriage

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