Peter Leithart on the Death Penalty (Part 2)

Click here to read part 1 of this article.

THE THEOLOGY OF THE DEATH PENALTY

The death penalty is an essential, foundational principle of biblical theology. Adam was told in the Garden, “from the tree of the knowledge of good and evil you shall not eat, for in the day that you eat from it you shall surely die” (Gen. 2:17). Here we see the first example of the commutation of a capital sentence: Instead of putting Adam to death, Yahweh, based on the sacrifice of a substitute, imposed a less severe form of death, namely, exile from the tree of life. But “dying you shall die” was still the fundamental curse against sinful humanity. Israel’s worship was entirely based on the justice of the death penalty, because their entire worship center on the slaughter of representative, substitutionary animals. Ultimately, this was the curse that Jesus accepted on behalf of His people. When we are saved, we are rescued from that threat. Denying the justice of the death penalty undermines the whole structure of biblical redemption.

But the story of Adam raises a theological issue that is essential for understanding the death penalty in the Mosaic system and how the OT capital crimes might apply today. Adam, after all, was threatened with death for eating fruit! Talk about harsh! Even the Mosaic law doesn’t prescribe the death penalty for eating forbidden food; if an Israelite ate unclean meat, he had to wash his clothes and would remain unclean until evening (Lev 11:40). Why would God threaten death for such a minor infraction?

Before trying to answer that question, we should note that we have similar threats in the Mosaic system. When Israel assembled at Sinai, Yahweh said that anyone who touched the “border of the mountain” would be put to death (Ex. 19:12). Once the tabernacle was set up, any non-priest who tried to enter the Holy Place or Most Holy Place was to be executed (Num. 1:51; 3:10, 38). Stepping on the wrong ground could get you killed.

To understand this, we have to consider the holiness structure of ancient Israel. Israel was set up as a system of graded holiness, which applied at several levels. Spatially, the most holy place was the Most Holy Place; the Holy Place was somewhat less holy, and the courtyard of the tabernacle less holy still; the land of Israel was more holy than surrounding lands, but not so holy as the tabernacle. Personally, the High Priest was holier than the other priests, but the priests were holier than the people, and Israelites holier than the Gentiles. The holiness of places, persons, and things was determined by their nearness to God, who is Thrice Holy.

With regard to the death penalty: The pattern is that the nearer one is to Yahweh, and the holier one’s status, the more severe the penalties. Adam was in the garden where Yahweh walked, and so even a “minor” sin received the death penalty; the Priests were near to God, so rearranging the order of the sacrifice was enough to get Hophni and Phineas killed (it was a “great sin”); a priest’s daughter who “played the harlot” was executed and burned (Lev. 21:9; the burning, probably, was done with altar fire), but a layman’s daughter who played the harlot might be executed by stoning; Israelites lived in the holy land, the land Yahweh claimed and the land where He lived, and therefore they were subject to more severe penalties than the nations.

Interestingly, we can even see shifts within the Mosaic revelation in regard to the severity of penalties. As noted above, anyone who touched Mount Sinai was executed. Later, the tabernacle is set up as a kind of “portable Sinai,” a traveling architectural representation of God’s holy mountain. But Israelites are NOT forbidden to touch the tabernacle, and in fact they are free to enter the courtyard to bring sacrifices. How is this possible? The difference is that Yahweh has erected curtain barriers to keep Israel at some distance from His holy presence. Priests can’t go into the “cloud” the way Moses did, because God has erected the tabernacle as a screen between Himself and His people, for their protection. But that protection means that the sentence of death is not carried out with the same severity or intensity as when Israel saw Yahweh “unveiled” at Sinai.

DEATH PENALTY IN THE NEW COVENANT

Given the OT revelation of the importance of the death penalty, and faced with rising crime and stupid laws, some Christian writers in the last few decades have suggested that the OT system of law should be transferred, in toto, to modern nations. This includes the death penalties, which, some have argued, are still “binding” on modern nations. The above analysis raises insurmountable problems for this view: first, because capital punishment was not “binding” in every case even for Israel, and, most importantly, because the death penalty in the Mosaic Law functioned within the system of holiness that no longer exists. We could make this kind of totality transfer only if there were a nation that was in the same “holy” status as Israel. But there is no such nation in the NC (other than the church, see below). As the church has recognized for most of her history, the Mosaic Law is still instructive, and is, together with the rest of Scripture, the basis for Christian political and legal practice

Is the death penalty still a just civil punishment? In principle, it is for murder, particularly since the death penalty for murder was first presented to Noah, and is not specifically Mosaic (Gen 9:5-7). It is a law for all descendants of Noah, not merely for Israel. Beyond that, I do not believe that we have the wisdom to know how far other Mosaic capital punishments should be applied today. I‘m sympathetic to the recent call for a moratorium on the death penalty, though for somewhat different reasons than are usually given. We live in a society where the right to kill one’s unborn baby is guaranteed as a part of the fundamental right to choose one’s own understanding of reality. This is an easy case, and until we can distinguish between helpless victims who require the protection of the law and criminals who deserve execution, we have too little wisdom to exercise any authority in hard cases of life and death. Conservatives who worry that a moratorium on the death penalty would open the floodgates of crime sound a lot like political Judaizers, who believe that righteousness can be established by law.

We lack the wisdom to apply Moses in the civil sphere because we have failed to apply the Mosaic where we should and can. The Mosaic system was a system for the holy community of Yahweh, and that holy community is now the church. And the Mosaic system, because it was fundamentally about Christ, was also fundamentally about the order of the church, the body of Christ. In particular, the death penalties of the Mosaic system apply to those who are “nearest” to God, that is, those who are priests in the temple of the Spirit, who have been brought near. They apply in the church.

This is the way Paul uses the death penalty formula in 1 Cor. 5. He is dealing with a sexual sin that was a capital crime in ancient Israel (1 Cor. 5:1; Lev 20:11), and he uses a phrase from Deuteronomy that refers to “purging” an offender through execution (1 Cor. 5:13; cf. Deut 13:5; 17:7; 21:21; 22:21). Yet, Paul is not referring to execution, but to exclusion from the church. The sinner in Corinth is to be delivered to Satan (1 Cor. 5:5). This doesn’t mean that he is eternally damned, which is not a decision the Corinthians could make. It means he’s turned out of the church, back into the world under the dominion of the accuser. This is a severe penalty, in reality far more severe than the death penalty. But it is also a merciful discipline, which intends to destroy the “flesh” so that the “spirit” can be saved in the end (“flesh” and “spirit” are not two parts of the person, but the two ages of history that the sinner is trying to straddle).

Thus, the death penalty crimes from the Mosaic Law apply in the NC as ground for excommunication. All the qualifications that we made above need to be brought in here: all things must be established by witnesses, the penalty of excommunication is not mandatory, if an offender confesses and repents he will be forgiven, etc. Thus, churches don’t excommunicate “homosexuals,” but do excommunicate those who are proven to have committed acts of sodomy and refuse to repent; churches don’t excommunicate “disobedient children,” but might well excommunicate a juvenile delinquent who makes his parents’ home hell with his addictions and violence; churches don’t excommunicate someone who smiles on the Sabbath, but might well disciple a member who works his employees 24/7 or one who uses some position of authority to abuse the poor.

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One thought on “Peter Leithart on the Death Penalty (Part 2)

  1. Brian, thanks for posting this article and your other articles on the death penalty. I had not considered the connection between excommunication and the death penalty before. Very enlightening! I think Leithart is right that we have lost the wisdom to rule wisely in life and death issues. I’ve had some concerns about the death penalty but haven’t been sure on how to think through it Biblically. This series has been very helpful…

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