Principles of the talion

God gave commands to the Israelites through Moses after deliverance from Egypt. One of the most significant principles he taught them was that of talion: the command that punishment is to be measured by the criminal act. As such it was measured: there were limitations as to how bad a punishment could be.

By the time of Jesus the principle was being misapplied. Men were using it is justify their desire for personal revenge and neglecting the matter of mercy. Ever seeking justice for themselves they failed to realise that what they most needed was forgiveness. If they wanted mercy from God they needed to offer mercy to men.

In our own age that has had 2000 years of Christendom teaching mercy we risk neglecting justice for others. It is true that we need to allow vengeance at God's hand and not pursue personal vendettas, even so, victims require justice, and God has given us his principles for justice.

At its most simple the principle of talion is to require the criminal to receive what he has done. This is restricted to permanent personal damage done intentionally, or at least caused by gross criminal negligence. Thus,

• Remove an eye: lose an eye
• Kill a person: be executed

The principle does not apply to non-permanent personal damage or to crimes of property. Thus a judge can request a man be lashed (though this is limited to 40 lashes for the sake of shame), and thieves can be fined more than what they stole to act as a future disincentive.

There are several aspects to the talion. The first is that punishment is limited. Limited to the level at which a crime is performed. If a man is intentionally causing permanent injury to another then the consequence for him can be no greater than the harm caused. If he blinds a man in one eye you cannot blind him in both. If he cuts off a finger you can't cut off an arm. Related to this is the fact that, excepting execution, one cannot be maimed for infractions that do not maim others. A thief is not to have his hand cut off. A voyeur is not to have his eye plucked out.[1]

Certain crimes are still capital offences. Treason, adultery, etc may still require the death penalty but judges are not permitted to maim and mutilate indiscriminately.

A second aspect is that men are to be punished if they give fraudulent evidence that may cause maiming. When a man falsely testifies to something that would lead to damage he is to receive the same,

If a malicious witness arises to accuse a person of wrongdoing, then both parties to the dispute shall appear before the Lord, before the priests and the judges who are in office in those days. The judges shall inquire diligently, and if the witness is a false witness and has accused his brother falsely, then you shall do to him as he had meant to do to his brother. So you shall purge the evil from your midst. 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. (Deu 19:16-21)

The command that your eye shall not pity may mean that the judge is not permitted to give a lesser punishment or substitute a fine; it is a minimum sentence.

The implications of this principle are striking. Essentially a false accusation incurs the guilt of the crime. A man accusing someone of murder bears the guilt of murder. A woman who falsely claims rape is as guilty as a rapist.

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[1] The only exception appears to be if a woman grabs a man by his testicles during a fight. In this case she was to have her hand cut off and a fine could not be substituted (Deu 25:11-12). One possible explanation is that such behaviour could cause injury to the testicles (such as sterility, the context concerns descendants) so she was to receive a punishment that was appropriate. This would be her hand as females do not have testicles and she used her hand to commit the offence.

Justice and mercy

Mercy triumphs over judgment.—James 2:13

In the Law we see the principle of the talion. Sins against men are addressed by doing to the sinner what he did to another. Eye for an eye, tooth for a tooth. This principle applied to the body. A few maiming or capital punishments could be greater against a criminal in certain circumstances (eg. sexual crimes). But permanent destruction of a man or a part of his body was limited to what he had done to others. An example is in King Adonibezek who had cut off the thumbs and great toes of kings and the same was done unto him (Jug 1:7). He saw this as a punishment from God because of what he had done.

The punishment could exceed this in some circumstances, especially property crimes: A thief pays back more than he stole to act as a deterrent. Further, a man could be flogged for a crime because this did not cause permanent physical destruction of an organ.

The talion acted also limited punishments; it prohibited judges from sentencing excessive punishments.

Jesus speaks against the talion in his Sermon on the Mount. It is worth noting that he is teaching not against what is written, but what the people had be taught. When Jesus refutes his opponents he frequently appeals to Scripture saying, "It is written." The rebuke is in not believing Scripture. If his opponents claim to believe Scripture Jesus shows them how they err in their interpretation. In the Sermon on the Mount Jesus refutes not what is written but what they have been taught. Jesus prefaces his teaching by denying that he is abolishing the Law,

Do not think that I have come to abolish the Law or the Prophets; I have not come to abolish them but to fulfill them. For truly, I say to you, until heaven and earth pass away, not an iota, not a dot, will pass from the Law until all is accomplished. Therefore whoever relaxes one of the least of these commandments and teaches others to do the same will be called least in the kingdom of heaven, but whoever does them and teaches them will be called great in the kingdom of heaven. (Mat 5:17-19)

And then he says,

You have heard that it was said to those of old, ‘You shall not murder; and whoever murders will be liable to judgment.’ (Mat 5:21)

And

You have heard that it was said, ‘You shall not commit adultery.’ (Mat 5:27)

And

It was also said, ‘Whoever divorces his wife, let him give her a certificate of divorce.’ (Mat 5:31)

And

Again you have heard that it was said to those of old, ‘You shall not swear falsely, but shall perform to the Lord what you have sworn.’ (Mat 5:33)

These are what they have been taught by the scribes. When Jesus addresses these teachings, which are based in the Torah, Jesus explains what they mean. He explains that murder originates in the heart and that lesser sins  such as hatred also violate the law. He explains that adultery can be in the heart. He corrects the teaching they have received on divorce. But consider this teaching,

You have heard that it was said, ‘You shall love your neighbor and hate your enemy.’ (Mat 5:43)

Hating your enemies is not an Old Testament quote. He tells them to love their enemies.

When it comes to the talion Jesus says,

You have heard that it was said, ‘An eye for an eye and a tooth for a tooth.’ But I say to you, Do not resist the one who is evil. But if anyone slaps you on the right cheek, turn to him the other also. And if anyone would sue you and take your tunic, let him have your cloak as well. And if anyone forces you to go one mile, go with him two miles. Give to the one who begs from you, and do not refuse the one who would borrow from you. (Mat 5:38-42)

Jesus is not abolishing the Law as he has already said, but he is commenting about how they are applying the Law. None of the examples Jesus gives involves actually losing an eye, or a tooth, or one's life. Jesus is speaking against a spirit of retaliation. The talion was given to administer judgment and limit sentences, it was not given to justify our internal desire for revenge. This is what the Pharisees got wrong and why Jesus spoke so sternly to them in other situations. A spirit of revenge works against mercy. It subverts all that God wants to do. It is antagonistic to God's purposes. Punishment is not wrong, and the principle of the talion is not wrong, but if we let revenge take priority in our hearts we oppose what God is doing.

When Adam and Eve sinned in the garden, God pronounced judgment against them. The judgment was severe: they became mortal, they were estranged from God, they had difficulty with children, difficulty between each other, difficulty in their ability to get enough food. And such a judgment was necessary, they now knew good and evil and the depths of depravity the human race was now capable meant that they had to be restrained.

Even so, look at the promise when God curses the serpent.

I will put enmity between you and the woman,
and between your offspring and her offspring;
he shall bruise your head,
and you shall bruise his heel.” (Gen 3:15)

The protevangelium contains the promise of deliverance. Even in the curse God is planning to redeem the problem. God does not intend for men to be alienated from him.

Jesus teaches the same thing.

No one after lighting a lamp puts it in a cellar or under a basket, but on a stand, so that those who enter may see the light. Your eye is the lamp of your body. When your eye is healthy, your whole body is full of light, but when it is bad, your body is full of darkness. Therefore be careful lest the light in you be darkness. If then your whole body is full of light, having no part dark, it will be wholly bright, as when a lamp with its rays gives you light. (Luk 11:33-36)

When our eye is healthy, or generous, we view things rightly. We need to pay careful attention that we have healthy eyes. Luke writes this within the context of people saying Jesus operates by the power of Beelzebub. He warns them against having an unclean spirit, and he rebukes them for their unbelief. Then following this is a condemnation of the scribes and Pharisees.

Some have argued that Jesus opposes the religious but defends sinners by virtue of his kindness towards tax-collectors and prostitutes but frequent condemnation of the religious men of the day. This misreads what Jesus does and is doing. Jesus befriended sinners because they were lost. The sick need a physician. Yet the sinners we encounter in these verses are repentant sinners. Jesus offers mercy to those who repent. Jesus had a generous eye, one that defeats his enemies by making them his friends. It is this what the Pharisees get so wrong. They load up burdens on men's backs but do not help lift a finger (Mat 23:4).

It is not that mercy is right and justice is wrong, it is that people do not care for mercy which is a higher virtue. Love is above all.

And it is not that being a sinner gets one right with Jesus, it is repentance that matters. Jesus called Herod a fox (Luk 13:32), he warned the paralytic to stop sinning else something worse than paralysis would happen (Joh 5:14). And Jesus was gracious towards many righteous who were not sinners, including some who were Pharisees.

God is about redemption. He is about getting people into his kingdom. The pathway is faith demonstrated by repentance. The harsh words of Jesus against the Pharisees was because they opposed God's purposes which was to enable sinful men and women to repent and be accepted into the kingdom of Heaven. It matters not whether you consider yourself religious or not, what matters is that you have a heart inclined towards mercy.

But this is not a condemnation of justice. Justice remains. It is only in the context of justice that we can understand mercy. The men who refuse to call sin for what it is have neither justice nor mercy. They refuse to see that sin is an affront to God. They offer acceptance without repentance which is not mercy because it leaves people in their sin and outside God's family. They condemn religion while justifying the rebellious. Yet it is the very nature of justice which should make us so cautious.

Judgment will come. Heaven cries out,

her sins are heaped high as heaven,
and God has remembered her iniquities.
Pay her back as she herself has paid back others,
and repay her double for her deeds;
mix a double portion for her in the cup she mixed. (Rev 18:5-6)

It is the certainty of judgment which men deserve which makes mercy so imperative. Jesus is against men who would refuse the repentant; such an attitude demonstrates that they themselves have not received mercy, that they remain outside the kingdom.

Jesus said to them, “Truly, I say to you, the tax collectors and the prostitutes go into the kingdom of God before you.” (Mat 21:31).

Judah and Tamar

The story of Judah and Tamar raises questions for some Christians. The story itself seems a little unusual to moderns, and others have wondered why Tamar is called righteous, especially when engaging in prostitution.

The story is in Genesis 38 and is worth a read if you have not read it before or are not particularly familiar with it.

Briefly, Judah marries and has 3 sons. He finds a wife, Tamar, for his eldest son Er who is put to death by God for his wickedness before they have children. Tamar marries the next son who refuses to conceive children as any children through Tamar will be regarded as Er's brothers offspring not his, and God kills him also. Then Tamar is sent back to her father until the youngest son is old enough to marry her. Judah does not give the youngest to Tamar for fear he would die as well. Judah's wife dies. Tamar disguises herself and Judah has sex with her thinking she is a cult prostitute. On learning of Tamar's pregnancy Judah orders her execution, which is stayed because Tamar proves Judah is the father.

The story is more detailed and more dramatic than my brief summary. I wish to draw out some issues that I think helps understand this story. I used to think that Tamar's behaviour was wrong, just less wrong than Judah's; now I am more inclined to defend Tamar's actions.

Dealing with Judah's sons Er and Onan firstly. We are not told of the sin of Er, not that it matters greatly. God put him to death for his wickedness. As God is the ultimate judge; all human judges gaining their authority from him. If Er's actions warranted death in God's sight then he deserved death. And if God enacted that judgment then so be it.

The idea that a man had children for his deceased childless brother thru the widow appears to be an ancient custom. Moses describes the laws surrounding this situation in Deuteronomy 25 though this is over 200 years later. In cultures for much of history, and especially thousands of years ago a woman relied on her father for protection and provision. On marriage this responsibility passed to the husband. Now one's identity was strongly related to his family: posterity for men and raising children for women. A widow is left without protection and support. Childless women carried the shame of their condition, raising children being the focus of her role in society. Children also provided for one in his old age. So a childless woman has the shame of childlessness (though maybe not to the same extent as infertility), no child to help support her as she ages, and no husband to protect or provide for her at the time. This left her particularly vulnerable.

The brother in such society was to marry the widow. This immediately gave the widow provision that she lacked, but also the promise of children. The first child (or children) would be considered as a descendant of the deceased husband so as to preserve his name in future generations. The brother was able to take his own wife and have his own family. Of course some of his income would go to support his brother's widow. Note that Judah describes the marrying of a widow as a duty.

Then Judah said to Onan, "Go in to your brother’s wife and perform the duty of a brother-in-law to her, and raise up offspring for your brother."

While Onan took Tamar as his wife, his refusal to enable her to conceive was both an affront to Tamar as she was unable to be a mother, and an affront to his dead brother as he would be left without posterity. It was a very harsh situation. Essentially there was no other option for Tamar, as long as Onan was alive Tamar was unable to remarry yet she would stay childless and Er may remain without remembrance. I tend to think God was probably more concerned with Onan's mistreatment of Tamar than Er's sin. Onan's sin entailed significant mistreatment of others and for such wickedness God put him to death. We see elsewhere in Scripture God's great concern for the defenceless such as widows and orphans.

After Onan's death Tamar was now free to remarry and the duty now fell to Judah's next son Shelah. Apparently Shelah was too young and Judah sent Tamar back to her father. The real reason is that Judah feared for Shelah's life. A question is raised as to how old was Shelah and was he really too young. More importantly was it right for Judah to send Tamar back to her father. I am uncertain as to whether Judah should have taken responsibility for Tamar and provided for her in his own house. This seems possible based on the comment that Judah feared for Shelah, that is, sending her away alleviated Judah's fears.

Judah failed to give Shelah to Tamar when Shelah was of age. This is mistreatment of Tamar by Judah; she is in the same situation as when she was with Onan: unable to remarry (as pledged to Shelah) and unable to have children. Tamar's solution is to goes up to meet Judah in disguise. It is uncertain whether Tamar intended to appear as a prostitute in order to have sex with Judah, or whether she responded to his request for sex.

When Judah saw her, he thought she was a prostitute, for she had covered her face. He turned to her at the roadside and said, “Come, let me come in to you,” for he did not know that she was his daughter-in-law. She said, “What will you give me, that you may come in to me?”

The text may read that he thought she was a prostitute because of the veil. However it possibly just implies that he thought she was a prostitute because she was sitting at the entrance to Enaim and he did not recognise her because her face was covered with a veil. Judah's friend Hirah calls her a cult prostitute (qedeshah).

Tamar takes a pledge then leaves before Judah can redeem it. Tamar dresses like a widow again. Judah finds out she is pregnant and demands she be burned. Tamar was betrothed to Shelah so getting pregnant is proof of adultery. This was punishable by death. Adultery is a more serious crime than sex outside of marriage or prostitution by a woman who is not betrothed or married. The request for death by burning seems a little excessive by Judah. It is prescribed in Leviticus 21 for daughters of priests who become prostitutes, possibly because priests are to be holy.

Tamar returns the pledge to Judah making him aware the child is his. Then we hear this interesting comment by Judah

She is more righteous than I, since I did not give her to my son Shelah.

This is not necessarily claiming Tamar is righteous, the comparison is with him. Judah is acknowledging that his behaviour is worse than Tamar's. Judah is not claiming that he is indeed righteous, thus he need not be claiming that Tamar is either.

Nevertheless, I think Tamar's choice may be acceptable, and if not the best decision, surely an understandable response of a desperate woman. A key to understanding this episode is that Tamar's behaviour with Judah had nothing to do with sex. It was that from Judah's point of view, but for Tamar it was merely the means for her to gain the status and responsibility that she had failed to obtain; first because of her wicked husband, then because of her wicked brother-in-law, then because of her fearful and unfaithful father-in-law. It was right that Tamar be treated righteously, yet she wasn't. Perhaps she should have let God fight for her as we learn elsewhere in Scripture, but interestingly we have a Canaanite woman who acts honourably in all her dealings yet is mistreated by the people who worship the true God. The fact that Tamar secured her own rights is of less concern.

Judah makes right his failure to give Shelah to Tamar. He takes Tamar into his own house and provides for her and her children (she had twins), though does not lie with her again. Tamar now has both provision and children, she is honoured by her posterity (Rut 4:12), and she becomes an ancestor of the Messiah (Mat 1:3).

Inequality or absolute poverty

I have mixed feelings about the inequality argument. I think the issues are a slightly more complex than often argued, but in general I do not find it a problem. This puts me at odds with many of my fellow Christians, or at least the more vocal ones. Absolute wealth has its temptations, but I don't see inequality per se as a specific problem. We have inequality in many other areas of life: sporting, music, literary, and numeracy capabilities. Not many people argue against this natural inequality and most would just seek to optimise each individual's ability. Money has some differences to this but also some similarities.

Now I don't necessarily have sympathies with the extremely wealthy. I am not sympathetic to the legal protections for bankers or government bailouts. I think money can be made immorally. However I don't object to people having money just because they have a lot of it.

Nevertheless, I am concerned about the poor; especially the oppressed poor. Perhaps I could be more concerned in my actions, but in general I support just laws which I think protect the poor from oppression and, in the long term, rise them out of poverty.

But inequality is not the issue.

The Guardian quotes an Oxfam report.

The share of the world’s wealth owned by the best-off 1% has increased from 44% in 2009 to 48% in 2014, while the least well-off 80% currently own just 5.5%.

But what does this mean and why is it so?

Here is the comparison of rich and poor.

Now there is some difficulty using this timeframe. It is during the time of the global financial crisis which may skew results based on fluctuations of various currencies. And it is probably too short, a longer timeframe would be preferable. Even so, the benefit of this graph is that it shows absolute values.

According to this data: in 2000 the poorest 50% had $400 billion, in 2002 $700 billion, in 2005 $1300 billion and by 2014 $1800 billion. So if we completely ignore the wealthy we note that the wealth of the poor has grown by billions in the last decade. Even taking into account the rising population, the poorest 50% are significantly increasing their wealth. This is a good outcome. Now this seems more preferable to me than the richest 80 people increasing their wealth, but that they did so does not bother me. And it is not obvious based on this graph (alone) that the increased wealth of the rich was detrimental to the poor. Now perhaps it was detrimental, especially when politicians offered to bale out massive companies at the cost to middle class taxpayers, though that probably hits the richest 50% in developed countries. But what if wealth grows like that?

What if, as productivity increases through the use of capital, the labourers and the owners of the capital both increase their wealth? If you had the opportunity to increase the income of the poor from $2 a day to $5 a day by entrepreneurs who also doubled their income from $10 million a year would you be happy? Or would you rather remove income from the wealthy and give the poor an extra $1 a day knowing that the following year their income would be back down to $2 a day?

Now if men make money from fraud or theft then justice demands that this is taken from them and given to their victims. And those with money should help the poor: both direct giving when necessary, or providing work, opportunity, or capital. But the cry of "inequality" without consideration as to the why can just reflect a politics of envy.

Income inequality

Joe Carter has written a useful article about income equality that I think Christians from both sides of the political spectrum it should read.

Carter's points

1. Incomes are measured in money—and money is not wealth.
2. The existence of income inequality is generally a sign of a fair distribution of incomes.
3. Both low and high rates of income inequality can be signs of unfairness.
4. Income inequality is not the same as economic inequality
5. Measures of income inequality are meaningless because incomes are not zero-sum
6. Income inequality and poverty are separate issues.
7. No one in America is really concerned about absolute income inequality.
8. Discussions of income inequality are almost always about redistribution of income.
9. The only real threat caused by income inequality are problems caused by envy
10. The focus on income inequality is at best, useless, and, at worst, immoral.

A few thoughts from myself

1. Note that the essay is about income inequality and not poverty.
2. One can be concerned about poverty but not income inequality.
3. It makes a difference if your money is a result of creating wealth or just taking it, especially if you take it directly from the poor. This may include aspects of the finance industry.

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What Every Christian Should Know About Income Inequality

Here are ten points about income inequality that every Christian should understand:

1. Incomes are measured in money — and money is not wealth.

Income inequality is not in itself an economic problem. The simplest way to illustrate this point is to provide a simple “solution”, for there is a simple method that would lead to perfect income equality.

The first step is to calculate the number of earners and rank their incomes from lowest to highest. For example, let’s say a country has 100 million workers, with the lowest workers paid $10,000 a year and the highest earning an annual salary of $1 million a year.

The second step would be for the government to print enough money to equalize all the incomes. For instance, a worker who was making $10,000 a year would get a check from the government for $990,000 while the person making $1 million would get no check at all. Everyone else would get a check for the difference between their income and $1 million dollars.

The result is that all 100 million workers would then have an income of $1 million – the problem of income inequality would be solved!

If that seems a bit too easy, it’s because (a) income inequality is not in itself an economic problem, and (b) incomes are measured in money, and money is not wealth. A country’s primary economic goal is not to make sure everyone has an equal amount of money, but to improve people’s standards of living.

“The money itself is not wealth,” says Don Boudreaux, “Otherwise the government could make us all rich just by printing more of it. From the standpoint of a society as a whole, money is just an artificial device to give us incentives to produce real things — goods and services.”

The rest here.

Corporatism is not capitalism

In reading comments around the internet that denounce capitalism, examples of its supposed unfairness are frequently given using corporations. Now there are a variety of things about corporations that may be good or bad. But it is important to note that corporatism is not synonymous with capitalism.

In fact many capitalists and free-marketers think little of corporations.

Now I am not against corporations competing within the marketplace. They can use their capital to be productive and offer low priced goods to consumers. I am not against large companies. It is true that larger amounts of capital potentially allow more efficient production; but it does not ensure it. And I don't think that small companies are unable to compete. Price is an important but not sole consideration for consumers, and smaller companies may have other advantages. Small businesses account for significant proportions of Gross Domestic Product in many countries.

But there are some aspects about corporations as they do exist (not as they have to exist) that are unpalatable and frankly anti-free-market.

The idea of a limited liability company seems questionable from a Christian perspective. Individuals can lose all their money. To run a business that allows you to take a greater risk and thus a potential greater gain, but not a greater, or even a complete loss seems unfair. Although in a system that allows unreasonable settlements in litigation I see the limited liability as the lesser evil.

But what is really irksome is special government favours for corporations. Unequal taxes, subsidies, guaranteed monopolies, separate law. This is not in the spirit of capitalism and annoys true capitalists as much as it does socialists. Perhaps more so as some socialists may justify specific corporations they happen to approve of, whereas capitalists may be competing in the marketplace against such an unfair advantage.

Taking money from once group to benefit another is generally a feature of socialism whether the recipient is poor or wealthy.

So if you despise capitalism and identify questionable practices by corporations as your reason, note that it is unlikely it is capitalist practices that make the corporation unjust, rather its anti-capitalist behaviour.

Does God need to send men to hell for his glory?

I do not see why this should be so. I see no diminution of God's glory if all men are ultimately saved (though this will not be the case). For surely God's glory is all the greater if men who were hell-bound now belong to the kingdom of heaven. Is God's glory not demonstrated more in his salvation of sinners than his condemnation of them?

You may argue that God needs to send men to hell to manifest the glory of his justice. That justice is an attribute that is glorified by its execution. But surely laying our sins on Jesus manifests God's justice more than any human cast into the lake of fire. And if this is so, there is no need for any man to be condemned for the sake of God's glorious justice.

Math examiners fail logic

Mathcounts is a US national mathematics competition for grade/ year 6 to 8. ChristianNewsWire reports on a bizarre decision.

Math Counts, a national math competition for teams and individual students in grades 6-8, will not allow homeschoolers to form teams and compete in the 2010-2011 school year.  The Math Counts board unanimously decided to exclude homeschoolers in response to a few situations in which "super teams" were formed by pulling certain gifted students from public schools and labeling them as homeschool teams.

So a group of public schooled students lie by claiming to be homeschooled. Presumably this is to get bright kids from different schools on the same team rather than under the banner of their school? And the decision is not to punish the dishonest public schooled children but the honest homeschooled children.

Clearly the idea of banning every school which has a student claiming to be homeschooled required exceptional intellect and was not considered.

Justice relating to accidental death and property damage. Part 4

Part 1 here. Part 2 here. Part 3 here.

There are several lessons from these verses that pertain to personal property. Essentially if a man is responsible for property damage or loss then he is expected to restore or replace the property. Having responsibility demands making restitution and restitution should be to the level of loss. Criminal damage to property requires restitution above the level of loss; the owner of the property should be no worse off and a disincentive is mandatory for the criminal.

Noticeable in these examples is that intention is taken into account. Did the man know his ox gored? Did the thief sell the livestock? Did the person in possession of the livestock request it be in their care. Intent can alter whether you have to make excess restitution, full restitution, partial restitution, or no restitution.

What is important about this intention is that it is to be judged on the basis of men's actions. One is not required to look into the heart of a man and establish his motives—an assessment that is probably limited to God. Rather one establishes intention by the actions of a man. An owner of a goring ox is not identified by his animals looking menacing or having sharp horns, but having an ox with a history of goring. A thief using or selling stolen goods is identified by him having the goods in his possession, or having sold them.

This is distinct from hate crimes where underlying motive is presumed based on the activities of others, or the presumed intolerances within society. A man is judged based on the crimes of other men. The prejudice of a man is assumed without evidence of the man being prejudiced.

Related to this objective judgment of intent is a prospective approach in assessing criminal activity. An ox has a history of goring prior to the event. Not, the ox gored therefore what can we find in the history to support the likelihood of such an event. Something is bound to happen because it has happened before. Of course we know something went wrong after the event, the question is, Did we know this was likely before the event?

Justice would be well served if many of these principles identified in these passages were observed in law including establishing intention of the parties using objective measures of intent.

Justice relating to accidental death and property damage. Part 3

Part 1 here. Part 2 here.

The third passage concerns establishing responsibility and restitution of property when the persons concerned are not acting dishonestly.

If 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.

If fire breaks out and catches in thorns so that the stacked grain or the standing grain or the field is consumed, he who started the fire shall make full restitution.

If a man gives to his neighbor money or goods to keep safe, and it is stolen from the man's house, then, if the thief is found, he shall pay double. If the thief is not found, the owner of the house shall come near to God to show whether or not he has put his hand to his neighbor's property. For every breach of trust, whether it is for an ox, for a donkey, for a sheep, for a cloak, or for any kind of lost thing, of which one says, ‘This is it,’ the case of both parties shall come before God. The one whom God condemns shall pay double to his neighbor.

If a man gives to his neighbor a donkey or an ox or a sheep or any beast to keep safe, and it dies or is injured or is driven away, without anyone seeing it, an oath by the LORD shall be between them both to see whether or not he has put his hand to his neighbor's property. The owner shall accept the oath, and he shall not make restitution. But if it is stolen from him, he shall make restitution to its owner. If it is torn by beasts, let him bring it as evidence. He shall not make restitution for what has been torn.

If a man borrows anything of his neighbor, and it is injured or dies, the owner not being with it, he shall make full restitution. If the owner was with it, he shall not make restitution; if it was hired, it came for its hiring fee. (Exodus 22:5-15 ESV)

Property damage due to a person's behaviour, accidental or negligent, must be restored completely. The person responsible is expected to restore at least the same level as prior to such damage. Though they may keep the damaged property as seen when an animal kills another. (Exodus 21:35-36)

When property is in the care of a person to whom it does not belong and there is property loss (or damage) responsibility, and therefore restitution, is divided up thus

1. Owner gave goods. Theft of goods, criminal actions of a third party: possessor no obligation
2. Owner gave goods. Theft of animals, criminal actions by third party: possessor obligation
3. Owner gave goods. Death of animals, no criminal actions: possessor no obligation
4. Possessor borrowed goods. Possessor obligation
5. Possessor hired goods. Possessor obligation

The basic structure is that if you have goods in your possession at the request of the owner then you do not bear responsibility. If you have goods at your own request then you are responsible. If you hire them then you are responsible but accidental damage is covered by hiring fees.

The main exception is theft of animals. It is unclear why this should be different from other goods. Looking at the 2 sentences we have

If a man gives to his neighbor money or goods to keep safe (verse 7)

If a man gives to his neighbor a donkey or an ox or a sheep or any beast to keep safe (verse 10)

The word for "keep safe" is "shamar" which implies close guarding, not merely looking after. The NET Bible note for this passage reads

The point is that the man should have taken better care of the animal.

Thus a stolen animal implies careless supervision. If this interpretation is correct then a person is responsible because he accepted care but did not supervise in an adequate manner. The question could be asked, Why was the neighbour's animal stolen and not the carer's own livestock?

In general we have obligation for replacement of property when person requests use of another's goods but no obligation when requested to care for another's goods. With the caveats that one is expected to take good care of property, especially creatures, and that hiring fees take potential loss into consideration.

Justice relating to accidental death and property damage. Part 2

Part 1 here.

The next passage concerns restitution in cases of theft.

If a man steals an ox or a sheep, and kills it or sells it, he shall repay five oxen for an ox, and four sheep for a sheep.  If a thief is found breaking in and is struck so that he dies, there shall be no bloodguilt for him, but if the sun has risen on him, there shall be bloodguilt for him. He shall surely pay. If he has nothing, then he shall be sold for his theft. If the stolen beast is found alive in his possession, whether it is an ox or a donkey or a sheep, he shall pay double. (Exodus 22:1-4 ESV)

Compensation for stolen oxen is 5 fold and stolen sheep is 4 fold in the case of selling or destroying an animal, and 2 fold for keeping an animal. I make this to be

• 1 animal for the stolen animal to restore the situation to the previous state (replace or return)
• 1 animal as punishment for stealing
• 2 further animals as punishment for trading in stolen livestock
• 1 animal as punishment for loss of livelihood

A sheep provides for the farmer in terms of its meat, milk, and fleece. An ox provides in a similar way but is also a beast of burden. It is a farmer's tool, not just provision. The excess compensation reflects a greater offence been committed against the farmer. Not only does he lose provision, he loses the ability to produce.

A second animal as punishment is a deterrent. If a thief paid back solely what he stole then he benefits by gaining the items at times he is not caught. Leaving the thief worse off after stealing means that thievery leads to privation.

Further, to not force the thief to pay excess costs puts him in the same position as the man who inadvertently or negligently destroys the property of another.

If fire breaks out and catches in thorns so that the stacked grain or the standing grain or the field is consumed, he who started the fire shall make full restitution. (Exodus 22:6 ESV)

Clandestine removal of property is not to be equated with unintentional destruction of property.

An interesting situation arises here in that if a thief has sold or killed the animal he is punished more harshly. I am uncertain as to the exact reason here but will offer some speculation. Selling an animal suggests a higher level operation at play. The thief is not just stealing for himself due to laziness, his livelihood consists of trading stolen goods. He is becoming wealthy solely by the means of others' hard work, property, and in a way that leaves the owner with less wealth than he started with.

Concerning the increased punishment when stock are killed the interpretation may relate to whether such an action is meant to reflect hiding of evidence, destruction of property, or eating the animal. If the thief has eaten the animal I am uncertain why the payment is 4 fold. Eating the animal severely limits its use. A sheep provides ongoing milk and wool. A short term feast is short-sighted—the man will need to keep stealing to maintain food—and gluttonous—meat was not the mainstay of the diet, it was expensive and a luxury. In the case of the first 2 options, hiding evidence and destroying property, the man is making no use of the property, his thievery is to no end. I don't want your house but I will burn it down so that you do not have it.

What we establish from these verses is

1. A thief cannot just return property, he must pay in excess of what he stole;
2. It make a difference what people steal, stealing a man's method of income affects a man more than stealing his income, and needs to be punished more harshly; and
3. It makes a difference why a thief steals, or rather what a thief does with stolen goods.

Criminal law can take all these aspects into consideration when punishing a thief.

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.

On the provocation defence

For those outside New Zealand there has recently been a widely publicised trial on the murder of Sophie Elliot by Clayton Weatherston. I did not follow this trial, nor did I follow the high profile murder retrial a few months earlier. However it is of course difficult to avoid knowing about it with frequent items in the newspapers and on television.

Weatherston admitted to killing Elliot but went to court in an attempt to have the murder charge downgraded to manslaughter invoking the defence of provocation. This defence was not successful and Weatherston was found guilty of murder.

According to the New Zealand Herald on the defence of provocation:

The defence is covered under section 169 of the Crimes Act 1961.

The provocation defence allows for a killing that would otherwise be classed as murder to be downgraded to manslaughter if it can be proven that the person who caused the death was provoked.

The provocation must have some relation to a characteristic of the offender.

It must cause the offender to lose the power of self-control of an ordinary person and have induced the offender to kill.

I am not certain whether the defence solely applies to verbal/ written provocation, or also physical provocation. I assume both. Though physical provocation may also lead to self defence.

It is important to note that provocation does not remove all culpability, it merely reduces the blame; and also, perhaps, affects sentencing.

There has been a significant amount of controversy following the verdict because the court case allowed Weatherston to reveal a significant amount of private data concerning Elliot. Complaints along the lines of continuing to persecute the family, insult Elliot from the grave, etc.

2 well written responses have been made by Glenn Peoples and Madeleine Flannagan. I just wish to make a variety of comments.

1. Murder is a horrible situation. It is horrible when it happens, it is horrible being reminded of it, it is horrible going through court, it is horrible on the anniversary of the victim's death. In a broken world we have horror and while we can try and minimise it, it cannot be removed. Decisions about justice must be made on the principles of justice and mercy, not on the basis of preventing bad feelings. Else the law will become unjust and cause more, and even worse horror.

2. The provocation defence was not successful in this instance. Thus the law worked correctly. It is questionable that people consider changing the law based on a wrong case outcome, but to change it after a correct conviction?

3. Evil people do evil. They try and misuse the law to their advantage, they lie, they murder. Law changes do not affect evil men, they disregard them anyway. Removing this defence will not prevent evil people being evil, but it will damage those less evil. It will prevent legitimate provocation from being taken into account. It will also mean that criminals will falsely use other defences such as self defence and insanity to get reduced sentences or acquittal.

4. Culpability is not a dichotomous variable. People have partial blame. To disallow the discussion of events around a crime denies that there are considerations that need to be taken into account and can prevent justice being fully accomplished.

5. Much of this debate would be a non-issue if we did not allow the courts to be treated as entertainment. It is true that open courts have their benefits. Perhaps family court should be more open for example. But allowing anyone to attend a court case is a far cry from broadcasting audio or video. People may have a genuine interest in a case, but most people watching from their living rooms would not put in the effort to attend court daily and listen to the arguments. Allowing media into courts means that the case is effectively served up as entertainment, and it allows the media to sway public opinion by what they show and what they leave out.

I think that the courts should probably be open, but disallow the videoing and recording of cases, save what the courts wish to do for their own purposes. Reporting of cases should be forbidden until after the event. I even wonder whether defendants should be routinely given name suppression, as much as practical, with maintenance of this in cases that are successfully defended.

If this had been in place, then many of the things said by Weatherston about Elliot would have not be known by the public.

That being said, as the situation played out, most of New Zealand hold Weatherston in contempt, and probably more so than had the events not been played out in the media.

The adulterous woman and capital punishment

Blair asks how Jesus' acquittal of the adulterous woman affects the Christian view on capital punishment.

In John 8:3,5 the leaders of the Jewish people (the experts in law and religious authorities) challenge Jesus as to what to do with a woman caught in adultery. They directly refer, Jesus, to the law of Moses which states such a person should receive the death penalty. While she has not committed murder she, according to Mosaic law is deserving none the less of the death penalty.

It is clear from the passage that they are not motivated by any sense of the holiness of God, obedience to the law or justice. Rather, their desire is to trap Jesus over a legal question to discredit him (verse 6).

In response, he does not contradict them on their point of law. Instead he issues a challenge to their understanding and application of the law. A challenge that is intended to expose their hearts: before Christ the only one who can administer the punishment they have called for is one who is without sin. Jesus isn't making this point to a group of individuals who are self appointed but to the Jewish leaders (verse 3): those in authority who could 'legally' stone her. It appears to me that in Christ's mind only those who were without sin could administer such a penalty (verse 7).

If the only ones who could administer such a penalty were those without sin - where then does this leave us if, as Christians, we advocate for the death penalty? Surely in the same position as those that Jesus spoke to in (verse 7).

In my mind it is clear from the passage, that as one who never sinned, Jesus considered himself the only one justifiably (from a legal, moral, ethical & spiritual sense) able to administer the death penalty, but in this situation he chose not to. Instead he asked her where her accusers were (after his challenge to her accusers), forgave her and in doing so 'raised' her from the dead (for without his intervention she was as good as dead) while commanding her to go and sin no more. (He met her as her redeemer for her sin, saving her from the death penalty. In choosing to exercise grace and mercy and not judgment or condemnation (verses 10–11) he set her free and restored her to be able to fully partake in society again as one forgiven and restored). This is evident from his question with regards to her accusers and in his command to go and sin no more.

Understanding Jesus' approach to the Mosaic Law is important as it gives us greater understanding in the ways of God. Jesus frequently exposed the inadequate views of Jews of his day. He gave deeper perspectives on what the Law meant and he corrected inappropriate weighting of the Law, that is he showed them what was most important. As an example of the former Jesus taught that hating people in one's heart contravenes the command not to murder (Matthew 5:21); as an example of the latter Jesus taught that tithing while proper (for the Jews) was less important than justice, mercy, and faithfulness (Matthew 23:23).

Therefore I am interested in Christian apologetics against the death penalty. I must say however that I have not read any that I find convincing.

There are several reasons why I don't think this passage contradicts my perspective on capital punishment.

1. Is this passage really part of John's gospel?
2. I am defending capital punishment for murder
3. Mercy does not negate the permissibility of the death penalty, or even the necessity of it
4. The Jews were not able to administer capital punishment in this situation
5. The question was to give the scribes and Pharisees a charge against Jesus
6. Jesus was a servant during the first advent
7. Jesus did not address the question of capital punishment

I will address each of these in turn and then what I think Jesus words to the accusers and the accused imply.

Is this passage really part of John's gospel?
There is considerable debate over the legitimacy of this passage. It is not found in the oldest manuscripts, it is found in Luke in some manuscripts. The ESV Study Bible states

There is considerable doubt that this story is part of John's original Gospel, for it is absent from all of the oldest manuscripts. But there is nothing in it unworthy of sound doctrine. It seems best to view the story as something that probably happened during Jesus' ministry but that was not originally part of what John wrote in his Gospel. Therefore it should not be considered as part of Scripture and should not be used as the basis for building any point of doctrine unless confirmed in Scripture.

I do not intend to address this debate here. I am prepared to interact with this passage and I am happy that this event is possibly true—it has similarities to the question about paying taxes to Caesar—but I do think the caveat is worth keeping in the back of one's mind.

I am defending capital punishment for murder
In my post I specify that my defence is restricted to murder. I am prepared to extend this to related crimes such as treason and espionage.

I made this restriction as the reason for execution of murderers is not the same as the reason for other crimes. The Israelites were to execute men who drew their neighbours away to worship foreign gods (Deuteronomy 13:5; 18:20). While this is appropriate for the ancient Israelites because of God's redemptive plan, I don't think God intends for Christians to kill every infidel in the current age.

Thus even if Jesus does qualify the punishment for adultery within the Mosaic Law (I am not certain he does), this may not affect the appropriate punishment for murder in Gentile nations.

Mercy does not negate the permissibility of the death penalty, or even the necessity of it
There are 2 related questions concerning this (or any) punishment.

1. Is this punishment acceptable?
2. Is this punishment required?

If a punishment is: acceptable but not required, then not having such a punishment within the justice system is a possible scenario. In the case of theft, one country may prescribe a fine, another a jail term.

But even if a punishment is required, there are times when we may not give a full punishment. Offering mercy is allowed within a legal framework. One should not show favouritism. Note that when a man knows he deserves a punishment he is more receptive to mercy.

The Jews were not able to administer capital punishment in this situation
The Jew's were not legally allowed to execute criminals under Roman occupation. When the Sanhedrin brought Jesus before Pilate he said

"What accusation do you bring against this man?" They answered him, "If this man were not doing evil, we would not have delivered him over to you." Pilate said to them, "Take him yourselves and judge him by your own law." The Jews said to him, "It is not lawful for us to put anyone to death."

This means that no Jews were permitted to carry out the death sentence under Roman occupation (at least without their permission).

The question was to give the scribes and Pharisees a charge against Jesus
Because the Jews were unable to execute people under Roman law the question was to try and catch Jesus. It is similar to the situation when they asked him if it was lawful to pay taxes or not. The Jews were not interested in understanding Jesus' interpretation of the Law, they were trying to place him in a catch-22 position.

Jesus was a servant during the first advent
Jesus is God. He is the judge of the world. And we are fully at his mercy. John the Baptist recognised he greatness as did many others.

Jesus was sent on a mission to earth 2000 years ago. That mission was as a servant to men. That is partially why many did not recognise him as a Messiah as they were looking for a king. Now Jesus is in and of himself a king. He set up a kingdom. And he will return as king and judge. But this was not his role during the first advent. So while he is judge by right, Jesus the man denied his role as (an earthly) judge at that time. He submitted himself to the authority structures when appropriate during his earthly sojourn. Where Jesus did act in "judgment" over situations, it was as an eternal judge, not temporal; e.g. "Your sins are forgiven you."

Jesus did not address the question of capital punishment
Jesus' words in this situation do not specifically say whether or not capital punishment is appropriate for this or any crime. And I am uncertain if he did elsewhere. However he noted that all men must face judgment and we need to be ready when we die, whether justly or unjustly.

So what of Jesus' response to the accusers and the woman?
Jesus response to the accusers did not exactly deal with the issue of the appropriate punishment for adulterers. It dealt with the hearts of the accusers. And this is frequently Jesus' modus operandi. People come to Jesus with a question about justice, or requesting a judgment and Jesus speaks to that person's heart. When the man asked Jesus to intervene so an inheritance was divided fairly Jesus spoke to the man's covetness (Luke 12:13). Jesus was not necessarily saying the other brother had done the right thing, Jesus was using the man's plea to focus him on things eternal. Note also in this example that Jesus refuted that he was an appropriate judge in the specific scenario.

Therefore I am not certain that the statement

Let him who is without sin among you be the first to throw a stone at her.

says anything about the appropriate punishment for adultery. Jesus is speaking to the hearts of the men bringing the accusation.

Jesus response to the woman was clearly redemptive.

Jesus stood up and said to her, "Woman, where are they? Has no one condemned you?" She said, "No one, Lord." And Jesus said, "Neither do I condemn you; go, and from now on sin no more." (John 8)

God does not want people to be condemned, Jesus came to redeem them. John 3 says

For God did not send his Son into the world to condemn the world, but in order that the world might be saved through him.

So Jesus does not condemn this woman yet still exhorts her to leave her life of sin.

Still, the focus on redemption leading to life could hint at the possibility that allows an alternative to the death penalty, compare Ezekiel 18, and note also item 6 above.

Conclusion
The several reasons above show why I think this particular passage does not obliterate capital punishment for murder; and I am not even certain the Jesus is suggesting that capital punishment is inappropriate for adultery (in a Jewish context).

I will add that Paul thought that death remained an appropriate punishment from the state in certain situations. Paul said,

If then I am a wrongdoer and have committed anything for which I deserve to die, I do not seek to escape death. (Acts 25)

Does the death penalty prevent reconciliation with God?

Now on to jc_freak's objections.

Now in the case of the death penalty, rehabilitation clearly does not apply.

I don't see why not in principle. Convince him that he should not murder again.

I think that Christians should no longer support retributive capital punishment. I agree with you that we cannot expect worldly governments to live by Christian principals. Indeed, I agree with you that it may not be wise for Governments to act like churches at all, since, to some degree, governments need to interact with worldly people (war comes to mind as something that Christians should avoid, but governments need to often pursue).

I think God has expectations for governments and that they are best to govern according to God's desires. They will be judged on how they governed. The government is not the church. God has requirements for the church and requirements for government. They need not be the same. The church perhaps should not pursue war, but that doesn't necessarily mean that members of the church cannot fight in war.

But I think that Christians need to avoid supporting the death penalty because of our call to evangelize. We, as Christians, need to remember that when the government kills a convicted murderer, there is a very good chance that that person is going to Hell. This is not something we should pursue, but something that we should be actively avoiding. The longer we can keep those men alive, the more opportunities we have to reach them.... I also understand the principal that the threat of death may cause a criminal to seek salvation, but this also assumes a Christian justice system that actively works to teach criminals the gospel. This we do not have, so the concept doesn't really apply.

But we can still evangelise. The state is required to do her role and the church is required to do hers. I don't think the justice system has to be overtly Christian (though it should be godly) and teach the gospel; I think the church should evangelise within the jails.

But to your main point which is the key to this discussion. Now I agree that we should not pursue men going to hell, but I take issue with your assumption that the longer men are kept alive the more opportunities we have to reach them. This sounds somewhat reasonable but is it true? C.S. Lewis asked the question whether a man condemned to death in 30 days is any less likely to seek God than the man incarcerated for 30 years. And I think Lewis has a valid point. People need to face their own mortality. A murderer who has been caught and knows he is to die in a month is forced to face his mortality. He is forced to look thru to eternity. He is likely to ask if there will be any reckoning for his actions. Whereas the man who gets incarcerated for the rest of his life does not necessarily have these issues placed in such stark contrast. He may adapt to life in prison and continue to live a life avoiding God. I am not convinced that a longer duration of life, even if it gives more potential opportunities to witness, makes a man more likely to respond to the gospel. I wonder if facing a short life may be as or more effective in the path to repentance.

There are a couple of other issues that arose in the discussion. I said

And if a murderer murders in prison, or arranges one from prison, does the state bear some responsibility because they did not execute him. And what of the victims who are hell bound because they died before they heard the gospel

to which jc_freak responded,

Let's take the second one first. If a murderer kills an unbeliever, and that person is hell bound now, then why would that influence the way the now treat the murderer? Should we be less inclined to see that person in heaven? I dont really understand here.

That may be because you separated my comments out.

As far as the criminal killing while in prison, I did say that I support incapacitation as a reason for the death penalty, which is what you are talking about here. If a person is too dangerous to keep alive, then it is understandable to kill him.

Murderers have murdered in prison and they have arranged contract killings from within prison. The point here is that by not executing the murderer after the first crime (so that they may respond to the gospel) we have allowed him to be in a position to murder a second time and the victim of the second murder may not have heard the gospel.

Lastly,

My issue is that not whether the death penalty is present, but why it is present and how it is being used.

Bad laws and misuse of the law—yes those are very real issues, but side issues. We must establish the legitimacy (or not) of the death penalty as a punishment. Is it intrinsically allowable for the state; is it expected of the state? If it is, there may still be reasons to oppose it on pragmatic grounds. Disregard for the law and excessive numbers of innocent people being executed for example.

Reasons for sentencing criminals

In response to my post defending the death penalty a few months ago jc_freak raises some issues and several objections. Firstly he gives some helpful philosophies surrounding reasons for sentencing.

1. Retribution. When someone does something wrong, they are responsible for their actions, and must pay it back.
2. Deterrence. When someone does something wrong, punish them in such a way as to make anyone else who may commit that crime afraid.
3. Rehabilitation.When someone does something wrong, punish them in such a way to convince them the act was wrong so that they would never do it again.
4. Incapacitation. When someone does something wrong, prevent them from ever being able to do it again.

One must remember that sentencing is something done in the course of carrying out justice. Thus while each of these positions may have validity, and in fact more than one can be ascribed to, there is primary philosophy which the others need to accommodate.

Sentencing is about retribution (as defined above). Justice demands that wrongs be righted. A thief must return what he stole, and perhaps cover the costs of the victim being without his property. The object is owned by the victim and not the thief, even while it is in the possession of the thief. One can hardly advocate rehabilitation while the thief retains the stolen property.

Deterrence is also a secondary reason in sentencing. Forms of deterrence can be draconian. Hanging men for stealing food and amputating limbs of thieves are effective deterrents, both for the criminal and citizens. But this is hardly just. The talion limits punishments to the level of the crime, thus justice is primary over deterrence.

Incapacitation is related to retribution, it is the last step for a recalcitrant criminal. The criminal's history is such that his future is predictable. One could say he is being punished for the crimes he is bound to commit.

Thus retribution (and incapacitation) are primary, and deterrence and rehabilitation secondary. That being said, the message of the cross is rehabilitation. Mercy triumphs over judgment. Note Ezekiel's message to the Jews,

But if a wicked person turns away from all his sins that he has committed and keeps all my statutes and does what is just and right, he shall surely live; he shall not die. None of the transgressions that he has committed shall be remembered against him; for the righteousness that he has done he shall live. Have I any pleasure in the death of the wicked, declares the Lord GOD, and not rather that he should turn from his way and live? (Ezekiel 18)

A primary reason need not be the most important reason. Jesus offers us rehabilitation; yet he still deals to the issue of retribution via the crucifixion.

I will deal with the objections in my next post.

Self enacting justice

It would seem that the appropriate punishment has been meted out to a criminal and his associates before the event.

A would-be suicide bomber accidentally blew himself up on Thursday, killing six other militants as he was bidding them farewell to leave for his intended target

In defence of the death penalty

There is disagreement within Christendom over whether the death penalty is compatible with Christian theology. I am not fully certain as to which camp is correct, though I favour the conclusions below.

Here I wish to give a defence in favour of capital punishment. I will restrict my discussion to the case of murder. I will not cover pragmatic opposition such as miscarriage of justice and the fear of innocents being put to death. While these are important issues, they are issues of administration. My concern is whether execution is fundamentally an appropriate punishment.

There is Scripture in support of the death penalty in certain situations. Therefore I do not think the question is whether or not capital punishment is intrinsically wrong, God ordained it several times. The question is whether not putting people to death is preferable for reasons based on Jesus' deeper revelation of the intentions of God.

The first mention of the death penalty follows the Flood.

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.

"Whoever sheds the blood of man,/
by man shall his blood be shed,

for God made man in his own image...." (Genesis 9)

As mentioned previously this verse is significant in its reasoning. Men have the implanted imago Dei. We must not remove this. Only God has the right to destroy life because it is his image that is being erased.

When God gives the Law to Moses we see similar commands. The 6th commandment is, "You shall not murder" (Exodus 20, Deuteronomy 5). Others translate this as, "You shall not kill." Neither "murder" nor "kill" is fully conveys the Hebrew ratsach (רָצַח). "Kill" is too generic. "Murder" implies immoral intention, though the word can be applied to sanctioned and accidental killing. The NET Bible notes state,

The verb רָצַח (ratsakh) refers to the premeditated or accidental taking of the life of another human being; it includes any unauthorized killing (it is used for the punishment of a murderer, but that would not be included in the prohibition).

Compare Deuteronomy 19:

This is the provision for the manslayer (ratsach), who by fleeing there may save his life. If anyone kills (nakah) his neighbor unintentionally without having hated him in the past—

This prohibition clearly does not apply to those carrying out capital punishment for murder. This is seen in the specific commands given to the state and those acting for the state. The above example from Genesis specifies that the offender is to be put to death; that is, there is a command to kill in the pursuit of justice. The Mosaic Law also makes similar provision:

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 (harag) him by cunning, you shall take him from my altar, that he may die. (Exodus 21)

But if anyone hates his neighbor and lies in wait for him and attacks him and strikes him fatally so that he dies, and he flees into one of these cities, then the elders of his city shall send and take him from there, and hand him over to the avenger of blood, so that he may die. Your eye shall not pity him, but you shall purge the guilt of innocent blood from Israel, so that it may be well with you. (Deuteronomy 19)

The command to put someone to death is specific. It holds even if there is a general command not to kill men. Deuteronomy expands this commenting that the murderer killed an innocent man. The prohibition of killing or murdering does not apply to the murderer as he is not innocent.

So we see clear commands both in the time of Noah and of Moses that men are prohibited from killing people and the punishment for such crime is to forfeit one's life. The reason for such is:

• that the victim is innocent;
• that such behaviour offends God's holiness (note the words: "take him from my altar"); and
• that God's image in man is destroyed without God's permission.

I do not see statements from Jesus that would lead us to reconsider the above arguments. Jesus spoke to hatred. He informs us that hatred and murder come from same source within us. We cannot claim to obey the commandment not to murder if we hate. Despising men in our hearts is breaking this law. This does not necessarily imply that the degree to which we sin when hating our brother is the same as if we murdered him. Not all sins are equal. But it does state that before God non-murderers who hate have still offended God. They have still broken the essence of the 6th commandment. They are still in need of judgment by God for this.

Jesus also emphasised the need for us to forgive. Whether we are to forgive those who do not request or desire it is debated by Christians. There are examples of those who forgave unrepentant men including Jesus and Stephen. We are definitely commanded to forgive those who ask us (Matthew 18). I do not seek to resolve this question here. But even assuming the murderer is repentant and requests forgiveness, should this affect punishment?

While forgiveness is important to our own spiritual health, and forgiveness removes any right of redress when extended to a repentant man; I am not certain that this is relevant to government punishment. It would be difficult for them to let such murderer free immediately as although he has acknowledged his wrong, he may struggle to behave righteously. He may hate his anger but his struggle to control it may put the lives of others at risk in the future. So for the safety of the community he, at minimum, probably needs to be in prison.

Further, Jesus' commands seem to be predominantly aimed at the individual. The problem with the world is us and it is us that need to change. Individuals repent and enter the kingdom of God, not governments. Granted, men in government can belong to the kingdom of God and thus govern righteously, but it is still individuals who are redeemed. We are eternal, cultural structures are not. But although the state may be temporary, it still the governing authority in the current dispensation. And I do not see how the teachings for individuals change God's intention for the state.

Paul makes an interesting comment in the era of grace.

For rulers are not a terror to good conduct, but to bad. Would you have no fear of the one who is in authority? Then do what is good, and you will receive his approval, for he is God’s servant for your good. But if you do wrong, be afraid, for he does not bear the sword in vain. For he is the servant of God, an avenger who carries out God’s wrath on the wrongdoer. (Romans 13)

The sword may be representative of the threat of punishment, however if the threat does not go heeded then the punishment occurs. And sword here is a metonymy for execution. Paul affirms the appropriateness of state having the power of execution. If the state is allowed to execute at all then this will apply to the most appropriate crimes. Murder being the most appropriate, save, perhaps, treason.

The earliest teachings tell us that the death penalty is to be enacted. Ezekiel suggests that refusal to execute those deserving of death is unacceptable,

You have profaned me among my people for handfuls of barley and for pieces of bread, putting to death souls who should not die and keeping alive souls who should not live, by your lying to my people, who listen to lies. (Ezekiel 13)

Since Jesus we know that capital punishment for murderers is still at least permissible. However could a judge appropriately override this punishment? Say a righteous judge who was not open to corruption, a murderer who has repented, the victim's next of kin forgiving and not desiring revenge. Perhaps the murderer has accepted Christ and the judge is Christian; both aware that Christ's death had atoned for his heinous sin.

I guess a situation like this could allow for an exemption. And because Christ takes the curse there is no curse on the land from the bloodguilt.

This assumes a (Christian) theocracy, or a general tacit approval by the governed (in a democracy) or the king (in a monarchy) of the truth of Christianity. This may describe the current situation in Rwanda. I do have difficulty applying this to all governments. It also opens up the possibility that men will claim religion to escape punishment and thus, potentially, lead to the perversion of justice.

In conclusion there is strong evidence that the death penalty for murder is an appropriate punishment, it is probably the best punishment and it may even be commanded by God. Therefore governments who disallow it are answerable to God for this. There may be situations in which men may be exempt from this punishment however this should be applied with caution. In situations where exemption is permissible, if exemption is still not granted the state is probably not sinning in its refusal.

The principle of proportionality

Various commentators and news outlets have expressed opinions about the current conflict in Gaza. It is difficult to know all the relevant issues from a secular viewpoint with much misinformation, lies and propaganda.

On the side of the Palestinian cause are arguments about Israel blocking access along the borders of Gaza, specifically Egypt and the Mediterranean, and the involvement of Israel in creating their enemy. Arab support is also along the lines of mutual ancestry, mutual religion and mutual hatred for Israel.

On the side of the Israel cause are arguments about right of defence, right of conquest, larger concessions in negotiations. This on the background of a repeated stated desire of their enemies to completely annihilate them. There is some support from some advocates of democracy because of Israel's political structure. Several Christians are sympathetic to Israel because of their eschatological beliefs.

Without discussing the merits of these arguments nor resolving the various rights of both parties, I wish to comment on the ethics of the warfare and tactics as it relates to this conflict. I will discuss proportionality here and civilian casualties in a later post.

A lot is being made of the proportionate response theory. The idea being that the defence against an aggressor is proportional to the attack. This appears to be analogous to the principle of talion. The difficulty here is that talion limits the punishment for a crime committed by an individual. Under this principle a murderer can be put to death but a assaulter cannot be. You can force a thief to recompense his victim (and fine him) but not cut off his hand.

The number of casualties in a war is the sum of all individual deaths. However the idea that total number of deaths is comparable does not automatically follow. Each individual has died, but the addition of one individual's death to another does not seem to make sense.

Granted, mass death seems more horrible than individual death, and it is. But even with a single death, that person has still died. If a serial murderer is put to death for his crimes, he is only executed once. It doesn't matter whether he killed 3 people or 27 in terms of the degree of his punishment. We don't go and find 26 of his acquaintances to execute to even the numbers.

One could argue that victim proportionality can be applied to warfare even if it cannot be applied to serial murder because an army has a chain of command. But war is also an act of the state, not of individuals; and it is to individuals that talion applies. Suffice to say that totalling deaths to assess "proportionality" lacks any convincing principle and appears simplistic.

I am not even certain that "proportionality" by any metric is a required ethical aim for warfare, as opposed to, say, the combatant/ civilian distinction.

But assuming proportionality, as so many do, a more rational approach to proportionality is to look at intent. If soldiers from 2 countries are fighting each other, the fact that 1 side is more successful in killing the other side just reflects their better ability. Both sides are continuing to fight. Where proportionality potentially comes into play is when 1 side surrenders. Significant ongoing warfare after surrender (and agreed terms of peace) could be argued as disproportionate. So if Hamas continues to fire rockets into Israel, even though Israel has killed more Palestinians than Hamas has killed Israelis, then the response by Israel can hardly be described as disproportionate.

Interestingly Jesus makes this statement,

Or what king, going out to encounter another king in war, will not sit down first and deliberate whether he is able with ten thousand to meet him who comes against him with twenty thousand? And if not, while the other is yet a great way off, he sends a delegation and asks for terms of peace. (Luke 14)

Now it is important to note that Jesus was talking about joining the kingdom of heaven: men should consider all the implications of following Jesus. Jesus is not necessarily justifying some wars, nor is he commenting on the righteousness of the king's cause. But he is making an observation about kings that his hearers would have understood: when rulers know they cannot win they show prudence by negotiating.

The principle of proportionality also allows the aggressor disproportionate positioning. The aggressor can attack at will and the response is dependant on the attacks. This allows the aggressor to optimise his position and fight as munitions become available, knowing they will never be attacked at a greater level than they inflict. If this is disputed then why do those who hold to proportionate response not ask the aggressor to cease fire then the response to cease? Note that with individuals the wrong is with the aggressor (if it is not then they are not punished) and a proportional punishment against him acts as a limit on further activity. With warfare the aggressor may not be in the wrong and even if they are a proportional retaliation does not limit further activity.

None of this states which party is morally right or wrong in the situation. There have been cases when the righteous have won battles and wars and cases when they have been defeated.

A biblical defence of standards

My recent posts on the need for standards and the government enforcement of such came from my thinking about weights and measures. This is a frequent biblical theme and I wish to mention several verses in defence of how important God sees honesty in trading.

The Lord commanded the Israelites that their measures were to be honest.

"You shall do no wrong in judgment, in measures of length or weight or quantity. You shall have just balances, just weights, a just ephah, and a just hin: I am the LORD your God, who brought you out of the land of Egypt. And you shall observe all my statutes and all my rules, and do them: I am the LORD." (Leviticus 19)

"You shall not have in your bag two kinds of weights, a large and a small. You shall not have in your house two kinds of measures, a large and a small. A full and fair weight you shall have, a full and fair measure you shall have, that your days may be long in the land that the LORD your God is giving you. For all who do such things, all who act dishonestly, are an abomination to the LORD your God." (Deuteronomy 25)

An ephah is a volume measure for solids and a hin is a volume measure for liquids. In Leviticus God points to length, weight, and volume as measures that should be standardised. Examples of relevant measures for the Israelites would have included

• Length: land
• Weight: precious metals
• Dry volume: grain
• Liquid volume: oil

Note that the Israelites had to ensure both the scales were accurate as well as the weights used on the scales. God commands them to do so:

• based on the fact that he indeed is God;
• that they may dwell in the land for a long time, either live to an old age or that as a people they may occupy Canaan for many generations; and
• because to not do so is dishonest and thus an abomination to God.

There are also several proverbs that mention the importance of honest weights and measures.

Unequal weights and unequal measures/
are both alike an abomination to the LORD. (Proverbs 20)

Unequal weights are an abomination to the LORD,/
and false scales are not good. (Proverbs 20)

God reminded Judah not only to have just standards but what the standards were,

"You shall have just balances, a just ephah, and a just bath. The ephah and the bath shall be of the same measure, the bath containing 1/10 of a homer, and the ephah 1/10 of a homer; the homer shall be the standard measure. The shekel shall be 20 gerahs; 20 shekels plus 25 shekels plus 15 shekels shall be your mina." (Ezekiel 25)

Hosea (Hos 12:7), Micah (Mic 6:10-11), and Amos spoke against dishonesty in trading. Amos makes some interesting comments on the actions of the people,

Hear this, you who trample on the needy/
and bring the poor of the land to an end,/
saying, "When will the new moon be over,/
that we may sell grain?/
And the Sabbath,/
that we may offer wheat for sale,/
that we may make the ephah small and the shekel great/
and deal deceitfully with false balances,/
that we may buy the poor for silver/
and the needy for a pair of sandals/
and sell the chaff of the wheat?" (Amos 8)

There are several behaviours he condemns besides that which concerns us currently. They are:

• Oppression of the poor or oppressed
• Concern for business over things spiritual
• Disregard for God's law
• Possibly forcing the poor to become bondslaves
• They do so just to get enough food to eat
• They do so because they are cheated out of the money
• The oppressors encourage this because they want their labour without cost
• And the price of bondslavery is unjustly low

Specific transaction sins of the merchant identified here are:

• Labelling merchandise as containing more than it really does
• Charging more than the agreed amount (via deceit)
  
• Including material/ refuse not desired by the purchaser

All these 3 actions the Lord considers abominations. We can conclude that merchants are to trade justly, and this includes:

1. Accurate labelling
2. Clear agreed price
3. Not passing off refuse for merchandise