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Punishments in the Torah and Their Rationale

Pages 245 - 267



1 This paper originally focused on penalties for violations of family law and was entitled “Penalties and Sanctions in Ancient Israelite Family Law.” It was presented on 20 February 2014 at the conference, “Zwischen Abschreckung, Vergeltung und Wiedergutmachung – Strafen und Strafandrohungen in Kulturen des Altertums.” For this article, I have expanded the investigation to include other areas of law as well. I want to thank Birgit Christiansen for inviting me to participate in the conference and the Center for Advanced Studies at the Ludwig-Maximilians-Universität in Munich for hosting it.

2 For more on current debates, see Tonry 2011; and Brooks 2013. For evidence of these debates in the ancient world, see the comments below on ancient Greece.

3 For the sake of convenience, I use the terms “penalty” and “punishment” interchangeably throughout the article.

4 For an overview of the issues and a cogent argument for this chronological ordering, see Levinson 2006. The main debate has to do with the relative dating of the Deuteronomic and Holiness Codes. For an extensive argument that the Deuteronomic Code is earlier, see Stackert 2007; for the opposite view, see Weinfeld 2004.

5 On the Priestly Code, see n. 19 below.

6 See the discussion in Duff 2013. Immanuel Kant is usually considered one of the foremost proponents of the retributivist view, although he does see some value in deterrence (see Rauscher 2012: section 7; see also Kant 1887[1796]: 194–204; see also Pfeifer 2015: 16). Jeremy Bentham is the classical consequentialist (Duff 2013: section 3; he cites Bentham 1907[1789]: chapter XIII.2).

7 Duff 2013: last paragraph in section 4.

8 It is important to distinguish what I am calling revenge from what I am calling retribution. Revenge, as I see it, is action that is taken for the purpose of bringing emotional satisfaction to the victim or the victim's family. This could – but does not have to – entail allowing them to inflict the punishment themselves. Retribution, on the other hand, is action that is taken because the wrongdoer deserves to suffer something negative; the focus is on the wrongdoer. If the wrongdoer has gained an advantage over the victim by breaking the law, then the wrongdoer must now be put at a disadvantage in order, at the very least, to balance out the earlier advantage. Often, an action that would count as revenge and one that would count as retribution might look similar or even identical. Still, the motivation behind each action would differ. In his work on ancient Near Eastern law, R. Westbrook distinguished, in the case of serious harms against an individual, between revenge (the physical punishment of the perpetrator) and ransom (payment by the perpetrator in lieu of physical punishment); see Westbrook 2003: 77–79. His use of the term “revenge” is somewhat different from how I am using it in this article. I generally accept the distinction he makes, although I prefer the labels of “full measures” and “partial measures” (see Wells 2005: 63–64).

9 Duff 2013: section 3.

10 Some modern approaches seek to combine aspects of multiple rationales. See the comments on this in Pfeifer 2015: 17–18.

11 See, e.g., Stulman 1992: 49, 52–53; and Barmash 2005: 97–104.

12 Cohen 2005: 173.

13 Cohen 2005: 176.

14 Cohen 2005: 177.

15 Cohen 2005: 187. In Protagoras, the conclusion is reached that those individuals who appear incapable of being rehabilitated should be exiled or put to death.

16 Cohen 2005: 178–180. According to Thucydides, another orator, Diodotus, responds to Cleon with a speech of his own in which he discredits deterrence as not only being weak but actually being impossible. He points out that people and states are often threatened with death if they engage in certain activities, but they regularly continue to carry out these activities. For deterrence to work, he claims, one must find something that people are more afraid of than death (Cohen 2005: 180–182).

17 See the evidence cited in Cohen 2005: 175 n. 11.

18 I also use the terms “code” and “collection” interchangeably. For more on the problem of terminology for these sections of the Hebrew Bible, see Claassens 2010; and Knight 2011: 12–15.

19 The Covenant Code is usually identified as Exod 20:22–23:33. The Holiness Code comes in Leviticus 17–26, though other parts of Leviticus and Numbers may reflect literary activity by the authors of the Holiness Code. The Deuteronomic Code comes in Deuteronomy 12–26. I will not be discussing the so-called Priestly Code in this article because it is not a distinct literary pericope as the other codes are. For an overview of these codes and the issues they raise, see Wells 2015a.

20 Koch (1955) argues that there is no standard principle of retribution (Vergeltung) in the Hebrew Bible, even though many have claimed to see one. He examines Proverbs, Psalms, the prophetic books, and the so-called historical books, but he does not deal with the pentateuchal laws. His main point is that most biblical authors believed that Yahweh had built into the fabric of the world, as it were, a principle of act-consequence. According to Koch, what dominates biblical thinking is “eine Auffassung einer schicksalwirkenden Tat” (1955: 22); that is, each deed innately contains its own consequence, whether good or bad. For Koch, it is not as if Yahweh or someone else decides after each act whether to reward or punish the actor. He also points out that there is no word for “punishment” (Strafe) in the Hebrew Bible (1955: 29); the reason, in his view, is that no need exists to refer to punishment (or reward) as a separate entity because it is built into each act that requires a punishment (or reward). He adds that “das profane Rechtsdenken” also accepted this principle. I suspect that Koch would take exception to the emphasis that I am placing on the role of retribution in the legal collections. The laws, however, are different from proverbial sayings, poetic prayers, and prophetic utterances. In law, one has a choice of what penalty to attach to a given infraction, and behind every choice lies a rationale. Because retribution (giving wrongdoers what society believes are their just deserts) is a well-established rationale in the ancient world, as well as the modern, it remains a viable category for this discussion.

21 See, e.g., the description of what Levinson calls the “rhetoric of concealment” in biblical law (Levinson 2008: xviii, 48, 92).

22 Patrick 1973. See also his discussion in Patrick 1995: 425–426.

23 Patrick 1973: 181; for support, he cites Lloyd 1964: 312–313.

24 It should be noted that Patrick (1995: 428–432), specifically for the laws in Deuteronomy, has other categories, as well, such as “court rules” and “militia regulations.”

25 Patrick 1973: 181.

26 Patrick 1973: 181.

27 Vroom 2012: 39.

28 For a brief legal-historical overview of these laws, see Otto 2012: 236–238. On the possibility that these laws should be considered casuistic laws, even though they do not begin with the conditional particle kî, see Weinfeld 1973.

29 Accidental homicide is dealt with in the following verse (Exod 21:13).

30 The victim in question is a “man” (‘îš). This term refers to a male head-of-household. The punishment for kidnapping someone of a lower status (e.g., a woman, a slave) could well have been less harsh.

31 For a discussion of the issues in this text, see Barmash 2005: 76–80.

32 See the literature cited in Kumpmann 2016: 266–267.

33 In all probability, the slaves mentioned in the Mishpatim should be understood as debt-slaves rather than chattel-slaves; see Greengus 2011: 123–126. One possible implication of this view is that, if the slave had been a chattel-slave, then the master could have beaten the slave to death without any legal repercussions.

34 For an overview of the issues, see Jackson 2006: 208–214. Jackson claims that the pregnant mother mentioned in the text gives birth to a live child. I (and many others; see Wright 2009: 176–179) believe that the text describes a miscarriage.

35 The expression in v. 22, wĕnātan biplilîm, is a crux but can be interpreted as meaning that “he (the perpetrator) will pay by (the determination of) judges or mediators” (see the overview in Wright 2009: 180; for an alternative view, which translates the phrase as “before witnesses,” see Otto 1991: 119–121). This would put a limit on what the father of the dead child can demand.

36 I take the term ‘āsôn to mean harm to the mother; see Knight 2011: 135. Other scholars disagree; see, e.g., Propp 2006: 222–223.

37 For a recent overview of the lex talionis in biblical texts, see Otto 2016: 1546–1548; see also the extensive discussion in Jacobs 2014: chapter 3. There are various understandings of the talionic principle. It could, for example, simply express the need for proportionality in punishment and did not automatically mean that the exact same injury inflicted on the victim must be inflicted on the perpetrator. See the comments on this point in Christiansen 2015: 39, 44 n. 50, passim; and Schilling 2015: 162–163.

38 As mentioned, Jackson (2006: 208–214) has the fetus in mind, but his argument about the nature of the expression is still valid.

39 See Jackson 2006: 231–233. See also Jacobs 2014: 94–102.

40 See, e.g., Schwienhorst-Schönberger 1990: 127; and Nihan 2013: 136–139.

41 See, e.g., Lafont 1994: 116–117.

42 Again, the slaves in the Covenant Code should be understood as debt-slaves (see n. 33 above).

43 On this passage and the features of it that I have highlighted, see Jackson 2006: 249–253.

44 Scholars disagree as to why the ox must be stoned; for an overview of the issues, see Westbrook 1988: 83–88.

45 Guilt seems to be assumed for the oxen put to death in §166 of the Hittite Laws.

46 I omitted mention of Exod 21:31. This verse describes in rather obscure terms what to do if a son or a daughter is gored to death. It refers to the implementation of “this rule,” but exactly which rule the authors are referring to here is, in my view, unclear. Propp (2006: 236) assumes it means the package of rules regarding oxen that gore adults. For other literature, see Westbrook 1988: 60–61 and Wright 2009: 450 n. 27.

47 This text likely has a complex compositional history; see Otto 1988 and 1996.

48 In the Deuteronomic Code, some of the rhetoric may well have been added later. See, e.g., the comments in Otto 2016: 1228 on the so-called bi- artā-formula (“you shall purge the evil from your midst”).

49 On the connection of this expression to a so-called “purity theology” (Reinheitstheologie), which I see as compatible with my comments below on the function of this expression, see Otto 2016: 1256–1257.

50 Both Knierim (1999) and Kumpmann (2016: 261) claim that there is a difference between the legal act of punishing (strafen) and the act of retribution (Vergeltung). The former is imposed by a judicial authority, while the latter is carried out by a private party. Previously (see n. 8), I distinguished between revenge (Rache) and retribution (Vergeltung), but I do not accept the specific distinction made by Knierim and Kumpmann, unless, by Vergeltung, they mean essentially the same thing as Rache. The difference of opinion on this matter may stem from a different understanding regarding the role of the victim or the victim's family in the judicial process. I follow the view outlined in Westbrook 2003: 77–79. Allowing a wronged party to retaliate against a perpetrator could be part of the legal process and sanctioned by judges. Such retaliation would count as retribution as opposed to revenge in my view. The purpose was to give the perpetrator what he or she deserved and thereby offset or balance out the wrong that had been committed.

51 The language used here in Deuteronomy 13 is reminiscent of language found in a variety of treaties from the ancient Near East; see Koch 2008: 108–170. For the most recent argument (contra Koch) that much of Deuteronomy 13 (as well as Deuteronomy 28) is drawn directly from the vassal treaties of the Assyrian king Esarhaddon, see Otto 2016: 1238–1256, passim.

52 On the role of the term -rm (“to ban, devote, exterminate”) in this text, see Otto 2016: 1264–1265.

53 Otto 2016: 1262–1263.

54 Stulman (1992: 49) claims that the punishments in Deuteronomy 13 have three aims: “(1) to avert the communication of their guilt to the state …, (2) to propitiate the deity, and (3) to deter others from engaging in such acts.” I would place his first two items under the category of appeasement; the third, of course, is deterrence. He does not include retribution as I do.

55 On the question of whether this law originally belonged with the material in chapter 13 or that of chapter 17, see Levinson 1997: 98–137.

56 Patrick 1985: 118–119.

57 For a legal-historical analysis of these texts, see Wells 2004: 85–103.

58 Barmash 2005: 95. For a discussion of the legal issues at stake in this text, including who decides whether the homicide was intentional or not, see Barmash 2005: 22–36. Cf. Gertz 1994: 117–140.

59 See Jacobs 2014: 121–127.

60 Otto (2016: 1544–1545) also sees these two rationales in this text.

61 Knight 2011: 195; Benjamin 2015: 136–137.

62 For an overview of some of the difficulties in this text and the scholarly attempts to solve them, see Rothstein 2015.

63 The text addresses the issue of a woman who appears not to consent in vv. 25–27. Her life is spared, but the man who has sex with her is put to death. For a discussion of the issues related to sexual relations and the role of a woman's consent, see Kawashima 2011.

64 Exod 22:15 begins: “If a man seduces a virgin who is not betrothed and lies with her.” The beginning of Deut 22:28 contains only a few additions: “If a man finds a virgin young woman who is not betrothed and seizes her and lies with her.” For rules from ancient Greece that bear similarities to these biblical laws, see Hagedorn 2004: 255–267.

65 See the discussion, with other literature, in Pressler 1993: 37–39.

66 The consent of the daughter is immaterial for the authors of the Covenant Code; the injury is to the father and, thus, the compensation goes to him as well. See Anderson 2004: 40–41.

67 Weinfeld (1972: 285) argues that, for D's authors, the rights of the daughter have been violated and that the financial interests of the father are irrelevant in D. In contrast, Pressler (1993: 36–40) claims that D describes a violation of the father's rights. I find Pressler's arguments more convincing but would stress the emphasis in D on retribution rather than reparation.

68 Jacobs (2014: 164–178) discusses this text at length and refers to its punishment as “instrumental talion”; the instrument used to commit the infraction (the woman's hand) is the object of the punishment.

69 Macchi (2012) suggests that D's authors may have known of punishments that continued even after a criminal had been put to death. These would include beating and otherwise mutilating the corpse of the deceased. He argues that the law in Deut 21:22–23 was meant to stop this; it put “une limite à la logique vindicative qui voudrait faire payer le prix des fautes et des souffrances par delà la frontière de la mort” (2012: 84).

70 Some scholars refer to this as “moral defilement”; see Klawans 2001: 152–153.

71 See Strawn 2012. On the priority in H of the holiness of the land, see Joosten 1996: 176–180; and Milgrom 2000: 2185.

72 Hundley 2011: 178–179.

73 For discussion of this phrase, see Milgrom 2004: 65–67; and Lang 2015: 132–134.

74 Wells 2012.

75 The indication in the text that she has not yet been redeemed (lω’ nipdātâ) confirms her status as a debt-slave. A chattel-slave could not be the object of redemption.

76 Westbrook 1990: 565–566.

77 See the overview of this offering in Milgrom 1976; see also Hundley 2011: 145.

78 The term mωlek probably refers to a type of sacrifice rather than to a deity; see Dewrell 2012: 80–84.

79 Leviticus 18 lists most of the same sexual infractions contained in Leviticus 20, but it does not provide any penalties for them. On the relationship between these two chapters and the sexual behavior they sanction, see Greengus 2011: 11–34.

80 On the nature of this law as part of a priestly novella, see Chavel 2014: 67–80.

81 The literary structure of the text is manifestly chiastic; see Milgrom 2000: 2129.

82 For further explanation, see Wells 2015b: 261–263.

83 The blessings for obeying Yahweh and the punishments for disobeying him that come in Leviticus 26 are not legal consequences as such and are, therefore, not examined in this article.


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