Wednesday, 30 June 2010

Justice relating to accidental death and property damage. Part 1

In the next few posts I intend to discuss issues around justice as related to death of people and then property laws. Included are some thoughts I have on some interpretive issues. In my final post I wish to briefly summarise what specifics we can glean from these laws that we may better discern what makes just law.

Exodus 21 and 22 include instructions on livestock for the Israelites. These laws are among the larger construct that was intended for the Israelites as God's chosen people living in an agrarian society. It does not seem that the various laws are necessarily a blueprint for all governments, especially the rules regarding animal sacrifice. Nevertheless the commands the Israelites received at Sinai are a large reservoir of useful teaching that gives us much understanding of the ways of God.

One of the aspects of these livestock laws shows that it is intention that determines justice.

The first passage I wish to look at is human death caused by animals.
“When an ox gores a man or a woman to death, the ox shall be stoned, and its flesh shall not be eaten, but the owner of the ox shall not be liable. But if the ox has been accustomed to gore in the past, and its owner has been warned but has not kept it in, and it kills a man or a woman, the ox shall be stoned, and its owner also shall be put to death. If a ransom is imposed on him, then he shall give for the redemption of his life whatever is imposed on him. If it gores a man's son or daughter, he shall be dealt with according to this same rule. If the ox gores a slave, male or female, the owner shall give to their master thirty shekels of silver, and the ox shall be stoned. (Exodus 21:28-32 ESV)
This does not so much belong to laws about livestock but rather the earlier verses which discuss offences requiring death. But it raises some interesting perspectives that are apparent in the subsequent chapter.

The 2 offences are
  1. Ox causing death unexpectedly
  2. Ox causing death when the owner is aware of this risk but neglects to prevent it
If this is unexpected then the owner bears no responsibility. His ox must be killed in line with passages elsewhere demanding the death of people or animals causing the death of humans. Genesis states
But you shall not eat flesh with its life, that is, its blood. And for your lifeblood I will require a reckoning: from every beast I will require it and from man. From his fellow man I will require a reckoning for the life of man. (Genesis 9:4–5 ESV)
If the death is related to negligence then the owner bears some responsibility. Earlier in the chapter God mandates capital punishment for murder. But a man must not be executed for unexpected death.
Whoever strikes a man so that he dies shall be put to death. But if he did not lie in wait for him, but God let him fall into his hand, then I will appoint for you a place to which he may flee. But if a man willfully attacks another to kill him by cunning, you shall take him from my altar, that he may die. (Exodus 21:12-14 ESV)
Intentional killing of a person leads to death sentence. Accidental death at the hand of another means no death sentence (though other consequences). Death by oxen is a third (middle) category, death by negligence. If someone dies as a result of behaviour that put them at risk of death, but was not a result of malice then the sentence still is death for the negligent party.

However we note that the sentence can be commuted to a fine if so desired by the victims relatives.
If a ransom is imposed on him, then he shall give for the redemption of his life whatever is imposed on him.
Human life is viewed as immensely valuable by God. We must not kill others, but we must not even let our actions be such that they result in the death or others. If we behave in a way that could lead to another man's death but we do not care whether or not that would happen then we ourselves deserve punishment. The substitution of a fine recognises that mercy can be extended when there is no malice; just carelessness, indifference, or negligence.

To qualify for negligence the risk of death must be predictable and the person must be able to reasonably prevent it. In the example of the ox, the ox has gored before therefore further goring is likely, and the owner can keep the ox tied up. It would seem that extremely unlikely events, or events that are not avoidable should be included in accidental death.

The penalties for death of children and slaves are tangential to the above points but need explanation.

The qualification for children means that he cannot escape punishment just because the children are under his care. Children are viewed as the man's property in some sense, but he cannot escape a ransom because of this. He is a steward over his children for God, his negligence still requires punishment.

I am not certain if the qualification for slaves is in the case of an ox known to gore or not known to gore. That is, does the qualification apply offence 1 or offence 2 above? It is less likely to be offence 1 for reasons below. In this situation the ox owner is innocent. If it was situation 2 then the owner bears responsibility and must pay a ransom. The ransom is 30 shekels, the price of a slave. As the slave was the property of another then the situation is similar to the following passage where one ox kills another.
When one man's ox butts another's, so that it dies, then they shall sell the live ox and share its price, and the dead beast also they shall share. Or if it is known that the ox has been accustomed to gore in the past, and its owner has not kept it in, he shall repay ox for ox, and the dead beast shall be his. (Exodus 21:35-36 ESV)
If there is no blame the involved persons share in the loss. If there is a responsible person he repays the price of the ox in full (and gains a dead ox). The ox owner in the case of the gored slave pays the full cost of a slave which suggests that the passage has offence 2 in mind. Obviously one cannot keep a dead person. The difference with a slave compared to a freeman is that a ransom is an enforced stipulation rather than a possible option, and the amount is fixed, not dictated by relatives of the deceased.

Modern examples would be
  • A swimming pool that is reasonably accessible to infants but inadequately secured.
  • Driving while intoxicated or driving excessively dangerously.
  • Accessible cliffs or drops that are not fenced.
It is not that there is to be no risk to human life ever; nor is that if a tragedy occurs then blame needs to be apportioned to someone; rather it is that predictable and likely causes of death that can reasonably be prevented should be attended to, and disregard of these risks resulting in death is a real offence.


  1. I don't know how it is in NZ, but in much of the US, even if you fence in a pool, if a teenager jumps the fence and drowns, you're usually still liable (depends on the state). It's called an "attractive nuisance."

  2. I am not aware of that being an issue. The law about fencing pools I think is only a decade or 2 old.

    But your example illustrates the inability of people to assess situations justly. Tragedy happens and because people deny we live in a fallen world they need someone to blame.

    I am not certain whether there should be a law to fence pools (at risk of fine) or freedom not to with a severe punishment for those who do not. The latter would seem to be more libertarian, but the former makes it clear what is expected. For example should a person on a lake front or beach property fence their yard off from the water?

    More to come on this passage.



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