Peter Leithart on the Death Penalty (Part 1)

The article which follows was written by Dr. Peter Leithart, fellow of literature and theology and New St. Andrews College at head of their graduate studies department.  Dr. Leithart is also the author of numerous books.  This article is reprinted with his permission.

The Mosaic Law establishes the death penalty for a number of crimes. Not every violation of the 10 commandments was a capital crime (theft, for instance, required restitution), but the death penalty is given for some form of nearly all the 10 commandments (like much of what follows, this chart is drawn, with modifications, from an essay by James Jordan):

Command – Sin – Capital form of sin – Reference
1st –  Idolatry – Enticement to idolatry – Deut 13:1-10; 17:2-5
3rd Blasphemy Blasphemy Lev 24:11-16
4th Sabbath Sabbath violation Ex 31:14-15; 35:2
5th Dissing parents Rebellion son Deut 21:18-21; Ex 21:17
6th Murder Premeditated murder Ex 21:12-14
7th Adultery Various sexual crimes Lev 20
8th Theft Manstealing Ex 21:16
9th False witness Perjury in capital case Deut 19:15-21

This is not an exhaustive list, but gives some idea of the range of capital crimes in the OT law. To us in the modern West, this appears to be a large number of capital crimes, but historically it is actually a fairly short list. During certain periods of English history, for instance, hundreds of crimes were punished by death (for a darkly humorous description of 18th-century capital crimes in England, see Dickens, A Tale of Two Cities, Book 2, chapter 1).

Several preliminary points must be made about this. First, we have to remember that this is the Word of God. Christians cannot pretend that these passages do not exist, or simply ignore them, nor can we let modern sentimentality determine our evaluation of these texts. If they seem harsh to us, the problem may well be ours. Second, this is specifically the Word of our Creator and Redeemer, the same God who sent His Son to take the capital crime in our place, the same God who sends rain on the just and the unjust, the same God who says “turn the other cheek.” So, we cannot say that these laws are “unreasonably harsh” without saying God is unreasonably harsh, which is a lie. Third, the basic purpose and meaning of the Mosaic law is not to provide blueprints for a civil order, but to provide foreshadowings of Jesus Christ. Our main framework for understanding the Mosaic system and applying it in our day is typological. The Mosaic system provides both types and shadows of Jesus (He is the Priest, the Sacrifice, the Tabernacle, etc.) and typological patterns for the life of the church, the totus Christus (cf. 1 Cor. 9:9, 13). Fourth, the common ordering of the Mosaic law into “moral, civil, ceremonial,” while valid in a broad sense, does not give must assistance in dealing with specific passages. In the law, moral, civil, and ceremonial features are all mixed up together.

Examining the significance of the death penalty in ancient Israel involves two aspects: first, we want to examine some details about how the death penalty actually was carried out in ancient Israel. Second, we want to ask, what is the rationale for the death penalty in the Mosaic Law?

How did the death penalty function? First, the death penalty was the penalty on the books for various crimes, but it was not a mandatory penalty for most crimes. Numbers 35 is about the institution of cities of refuge for those who committed manslaughter. Verses 30-31 read, “If anyone kills a person, the murderer shall be put to death at the evidence of witnesses, but no person shall be put to death on the testimony of one witness. Moreover, you shall not take ransom for the life of a murderer who is guilty of death, but he shall surely be put to death.”  This makes it clear that convicted murderers had to be executed, but also implies that the penalty in other crimes might be commuted through a ransom, probably some monetary compensation (see Prov. 6:32-35; Matt 1:19). Just as God accepted the blood of a sacrificed animal in place of the blood of the sinner, so also the victim of a crime other than murder might accept a lesser penalty than death. Also, when someone confessed to a high-handed sin, God mercifully treated the sin as an inadvertent sin that could be atoned for by sacrifice (Num 5:5-8); so also, God’s representatives, the human “gods” who governed Israel, might commute a sentence for a penitent criminal (other than a murderer).

Second, the death penalty was carried out only after a trial, only through due process. Stoning was not a mob action (but it could be, cf. Acts 7). When a man-slayer came to a city of refuge, for instance,”the congregation judged between the slayer and the blood avenger” to determine whether or not the man-slayer was a murderer (Num 35:22-28). No one could be convicted except by the testimony of two or three witnesses (Deut 17:6; 19:15-21). This means that the commandment to execute a “man who lies with a man” (Lev. 20:13) cannot be interpreted as “you shall stone homosexuals.” Rather, it meant that someone convicted by the testimony of witnesses of committing sodomy might be executed (though it was not mandatory that he should be).

To be continued…


One thought on “Peter Leithart on the Death Penalty (Part 1)

  1. Pingback: Peter Leithart on the Death Penalty (Part 2) « Truth & Culture

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