Abolition or mitigation of the death penalty A perspective on the laws of Israel

The issue concern ing the topic o f ihe death pen a lly fo r capita l o ffences is still w idely discussed. Those supporting the retention o f the dea th pen a lty m ostly quote the O ld Testam ent as their source o f authority. The question, however, is w hether confirm ation has not been fo u n d too easily in the O ld Testament, without fu lly taking into account ihe conditions o f the period. O r sh o u ld the dea th pen a lty not be app lied f o r iraivigressions o ther than m anslaughter as well? In this p a p er specia l a ttention w ill he g iven to the d em and f o r the dea th p en a lty fo r m anslaughter a n d o ther crimes. The question w hether the im plem entation o f the death p en a lty in the h istory o f o ld Israel im plies ihe retention or m itigation thereof, w ill a lso have to he answered.


Introductory
In most ancient laws of Israel the death penalty is compulsory for vanous crimes.The question, however, remains whether the death penalty for manslaughter should not be reconsidered when the conditions of the period in which the laws of old Israel were fonnulated, are taken into consideration.Can the death penalty for religious, ceremonial and moral transgressions be so easily disregarded?Pleas for abolition because of a possible rehabilitation of the criminal, as well as calls for a greater compliance with the laws of the Old Testament are heard today (Geisler, 1990:193-199;NGK, 1986:98-100).The question thus remains whether the death penalty should be abolished, extended or maintained for murder only?
In this article the following point of departure is used: The Old Testament is accepted as an authoritative book of faith -a book based on the fact that the Lord, the God of Israel is one.The relationship between God and man is clarified in the Old Testament.As authoritative Word the Old Testament also contains fundamental truths which hold good for all people.From this point of view the Old Testament data will be exainined, evaluated and placed in a historicalrevelationary perspective.

The death penalty in various books o f law
The old books of law are taken as point of departure for the research of clearly defined decrees.Although many Old (and New) Testament laws are given in the course of the narration of historical events (c f Gen. 2: [16][17]24; (Brongers, 1960:175), the Mosaic laws given at Sinai can be regarded as the beginning of the fonnulation of the judicial principle.In the course of history law books have gradually been com piled and handed on to the next generation.During this process the usual practical applications and editing took place until we have the present completed form (Boecher, 1980:53-56).

T he B ook o f the C ovenant
The Book of the Covenant is one of the oldest law collections.Usually the his tory of development is taken into account when considering these laws (cf Bron gers, 1960:181 e.g.;Fensham, 1977:23;Childs, 1974:452).These laws fonn, to a great extent, the nucleus on which the other law books are built (Fohrer, 1968: 181-183;Noth, 1965: 147;Klopper, 1988:153).In the following discussion, the 21 capital crimes (Geisler, 1990:200) are divided into sections for the sake of convenience.
In ancient Eastern legal codes, such as the Codex Hammurabi, a cultic judicial system is not directly mentioned -the laws were purely social.The administra tion of justice was the responsibility, not of the priests, but of appointed officials (Brongers, 1960:38).30:20-21 and 31:14-15 (Noth, 1962:241).

• M anslaughter crim es
In Exodus 21:12-17 a series of casuistic or semi-casuistic laws, concluded by a nlD-fonnula is found.These laws apply to a murderer, one who curses his parents, a kidnapper or one who trades in human beings (slave-trader).This at tests to the high value placed on the sanctity of hiunaii life (cf Fensham, 1977:40).
In Exodus 21:13 and 14, two casuistic decrees have been inserted (Fohrer, 1968: 69-70) -laws concerning the intention of the deed.According to Exodus 21:13 and 14 one who unintentionally kills another, must flee to a place appointed by God.The culprit could also flee to the altar to obtain a fair trial, an ancient Eastern practice (Gray, 1964:94, Noth, 1962:180).From earliest antiquity no practice of inexorable legal revenge existed in Israel.
In Exodus 21:22-25 we find the lalionis: this was the criterion for the judges to apply if a pregnant woman had received a blow causing an injury (c f Fensham, 1970:155-156, Kaiser, 1983:174).It is possible that the original fonnula contained only a life-for-a-life principle, and that the extensions were later additions (Daube, 1969:115).The / !« la lio n is was also an ancient Eastern custom (c f the Codex Hammurabi.The /«.v lalionis is also implicit in a more mo dem custom in Northern Africa -see Alt, 1934:303-304).
Tiie supposition that the intention of casuistic laws was that the punishment should fit the crime should be rejected.In the ancient East ordinary citizens (awelum) sometimes received disproportionate punishments or were executed for minor misdeeds.The ju s lalionis was thus not a justification for revenge, but an attempt to limit irresponsible vengeance (c f Fensham, 1977:34;Pritchard, 1971: 161-162).Although this repulsive formula was later superseded, it did not disap pear suddenly, but did so as the authoritarian structure itself became more clearly defined.In Israel standard legal procedures became customary in the monarchi cal period (Childs, 1974:470;Thompson, 1974:216).From the beginning the equivalent punishments were placed next to the ju s lalionis in the old legal codes.
Murder and manslaughter and the ensuing revenge were part of the old Eastern way of life.In the old codes noticeably few casuistic laws existed -laws which merited the death penalty.In the Codex Hammurabi the death penalty was re quired for perjury, kidnapping, perverted sexual practices and blows leading to fatal miscarriages (1-2, 14, 130, 210 -c f Pritchard, 1971).No example of mur der, as defined in Exodus 21;12 is mentioned.It thus seems as if the concept of the value of human life was completely lacking in the ancient East.
The basis for the death penalty for manslaughter must be sought in Genesis 9:6.This text is usually included in the Priestly Codex, which is considered as a late priestly collection of old traditions and laws.The editor(s), however, dated the formation, however ancient it might be, after the Flood and before the history of Abraham.Thereby they made the revelationary truth, however it might have been handed down in tradition, applicable to mankind.The principle was therefore probably familiar to most of the compilers of the law books (from the Book of the Covenant and later manuscripts) (c f Gispen, 1974:296).
The origin and the value of the fonnulation of the principle have been the cause of much deliberation and argument, but it need not necessarily imply a mechanical inspiration theory (cf Henry, 1986:230-234;Reid, 1986:231-246;Klopper, 1988: 160;Van Seims, 1967:123).
The principle of the death penalty has been handed down as an old fomiula with a neat poetic structure:

W hoever sh e d s the b lo o d o f man, by mart his b lo o d sh a ll be shed.
In this formula the emphasis is on blood, which has a close connection with hu man life.Blood plays an important role in the provisions for capital punishment (cf Lev. 20:11,12,13,16).Capital punishment begins with the blood of Abel, which calls for vengeance (Gen.4:10).More important, however, is the moti vation for punishment fo r in the image o f God God has made man.In Genesis 9:6 we find a revelation of the true faith which is found nowhere else.The statement in Genesis 9:6 relates to Genesis 1:26 and 27 where the relationship of man to God and God to his creation is described (c f Vriezen, 1966;186-190).Man is never seen as an absolute being separate from God or in opposition to Him; he finds his existence and dignity in his commitment to God.Basically the high esteem of man implies his being the image or representative of God (Heyns, 1989:159).Nobody can kill God and nobody may kill his representative.He who lifts his hand against man, lifts it against God.This pre-Israelitic motivation holds good for all mankind.This point of departure is in sharp contrast to the view of the ancient East -a view according to which human beings were created by the gods, but out of clay, to be their slaves (c f Henry, 1986:239).Human life was regarded as insignificant and fleeting.

T he tradition o f the priests in L eviticus and N um bers
Leviticus and Numbers, as part of the so-called Priestly Codex, are usually seen as a priestly collection of earlier traditions and texts containing a wide variety of genres and origin.Various developmental stages can be identified in the codex, of which certain subcollections can be recognized, e.g. the "Holiness Code" (cf Fohrer, 1968:181;Rendtorff, 1985:145, 147).The laws originated in the Sinai-Moses-period and late r(c f Childs, 1979:184;Noth, 1965:179).
The usurpers in the priesthood had to die as the priesthood was assigned exclu sively to Aaron and his descendants.

• M anslaughter crimes
Capital punishment for a murderer is repeatedly mentioned in Leviticus 24:17 and 21.The condition for the execution of the death penalty and the role of the avenger of blood are not clearly defined in the Old Testament.The places of asylum, namely the free cities, are however, clearly stated in Numbers.Free ci ties were possibly known outside Israel (Von Rad, 1966:128;Tliompson, 1974:216).
The free cities gave one who had unintentionally killed another or even a mur derer the opportunity of having a fair trail (Childs, 1974:470).
The accused had to be tried by a legal tribunal.This meeting (iT iy ) was pro bably the gathering o f spiritual leaders of the city (c f Lev.1:16; 10:2).They had to try the case on the grounds o f sufficient evidence.The grounds for judging wiiether it was a case of murder punishable by death, are mentioned (cf Maarsingh, 1987:119).Circumstantial evidence, such as the weapons used and what could have caused death was regarded as of vital importance.The motive, how ever, was more important.It was reasoned that the deed must either have been committed intentionally or out of hate or enmity.Manslaughter, committed un intentionally or on the spur of the moment could be regarded as having mitigating circumstances.

• Moral misdeeds
A special contribution in the "Holiness Code" (Childs, 1979:182-183) for the people of Israel, is the emphasis on sexual transgressors.In most instances sexual transgressors "had surely to be put to death" (Lev.20:10-21).God would also punish them with childlessness (Lev.20:20).
Leviticus 20:1-27 stresses the holiness of the LORD and demands the holiness of the people.Holiness (and purity) in marriage and in human relationships are highly esteemed.Although a typical HDI"' nlQ-fonnula is not used (a participle and short description), a transgression is nonetheless punishable by a n'lQ.

D euteronom y
Many researchers accept that the book Deuteronomy is a collection of traditional material, especially laws, written by various authors or editors of one school of thought -authors/editors who worked on it for a long time.The final form is ascribed to the reformation in the days of Josiah.Various stages in finalizing these laws are recognized and the existence of a Proto Deuteronomy is accepted (Rendtorff, 1985:155).In the book Deuteronomy the collection is presented as speeches of Moses delivered before the Israelites entered the promised land.When thus considered, the legal principles held sway from the beginning of Israel's sojourn in Palestine.
Many laws show a great similarity to those of the Book of the Covenant, but some are abridged, while most are worked out in greater detail.

• Religious decrees
In Deuteronomy various transgressions concerning the relationship with God are noted, of which the most important is the worship of other gods as a merited cause for the death penalty (c f 13:1-18).Special attention was paid to the man ner in which legal matters were judged.This was true for all crimes.There had to be a thorough investigation (17:4), justice had to be done after sufficient eviden ce had been gathered (c f 19:5; 17:6); a false witness could be executed (19:16, 18).In Deuteronomy 17:8 and the following verses the trial in the city gates is Abolition or mitigation o f the death penalty a perspective on the la»s o f Israel mentioned: if the case could not be resolved there, it had to be brought to a place chosen by God (cf. Llewellyn, 1975:10, 11).

• Manslaughter crimes/misdeeds
In Deuteronomy 19:1-13 a number of casuistic laws for fair trails in free cities is emphasized.The laws contained guidelines like the following: the elders were involved in the course of justice, the attitude of the accused had to be taken into account, the evidence had to be tested, a false witness was not to be excused.In Deuteronomy 19 the J u s ta lto n is is partly repealed: A life fo r a life (19:21).Al though the riDT' nlQ-formula is not used here, the death penalty is mentioned, as also the stipulation that no mercy should be shown to the murderer (Craigie, 1976:268).

• Moral transgressions
According to Deuteronomy 21:18-21 a son who is disobedient, out of control, a drunkard and a wastrel, is to be stoned after a proper trial.The body of someone who deserved the death penalty and was executed, could be hung on a gibbet as he was accursed of God (21:22-23).This 'crucifixion' was not an execution of the death penalty, but a way to deter the people from breaking certain stipulations of the covenant (Craigie, 1976:285).Women guilty of illegal pre-marital sex (22:13-21) and other sexual transgressions (22:22-26) were to be stoned.

*
The old Testament teaching emphasizes the fact that God is one, and stresses the relationship between Him and man (Deut.6:4-5).Nobody can destroy God, but words and deeds could bring about God's contempt.Therefore the laws of Israel (Ex.22:27(28)) included the following words: You shall not blaspheme (curse) God.The blaspheming o f God was punish able with a specific kind of death (Lev.24:16).The death penally was com pulsory for false prophets and the transgressors o f certain ceremonial insti tutions where the holy presence of God was visibly revealed.
In Exodus 21:22-25 (c f Deut.19:21; Lev.24:20) the ju s taUonis is quoted.Ethical motives cause scholars to attempt a mitigation of the law by a figurative interpretation.This would mean that the punishment had to fit the crime.In the ancient East the ju s talionis was an attempt to counteract excessive revenge.This must not be seen as a right to vengeance, but as a way to limit uncontrolled revenge.From the beginning the equivalent punishments were also placed next to the ju s talionis.
Murder and manslaugliter and the ensuing revenge were part of tlie ancient East ern way of life.Regarding these aspects it seems as if the concept o f the value of human life lacked entirely.Man was seen as a slave of gods made out of clay.
On the other hand, the value of human life is clearly revealed in the history of the revelation in the Old Testament and it can be regarded as a foundation for later legislation.
The death penalty is founded on the pre-lsraelitic law as it is found in Genesis 9:6.The motivation for this law is that man is made in the image of God.There in is contained a truth in God's revelation which demands the recognition of all people of all times.Man has a inviolable dignity as image and representative of God.This immunity could only be violated at the expense of the death penalty.
* With regard to moral transgressions the death penalty sometimes sounds excessive.Moral transgressions are addressed in the so-called holiness laws: sexual transgressions had to be punished by death .These decrees demand the acknowledgement of the holiness of God in the life of the people of Israel (Lev. 19:2,20:7).

*
In the law codes the requirement of a fair trial is well defined.However, the instructions regarding the execution of the death penalty and the role of the avenger of blood are not clear.Clarity came in part with the stipulation of free cities .The free cities offered a suspect the opportunity of having a fair trial.The criteria for judgement leading to the death penalty were clearly defined and the possibilities for mitigating the death sentence were emphasized.

E xam ples o f the application o f death penalty stip ulation s
The historical narratives in the Pentateuch and the so-called Deuteronomistic narratives supply examples of the application of the laws.

* Religious and ceremonial stipulations
According to Genesis 3 man disobeyed God's commandment by eating of the tree of knowledge of good and evil and thus had to pay with his life (Gen.2:17).God punished man and woman, but not with immediate deatii -man would die but later (Gen. 3:19).The validity of the death penalty was therefore not prejudiced, but was merely postponed.
In 2 Samuel 6 the story of Uzzah, who held to the ark and was struck down by God, is related.According to Numbers 4:15 it was the task of the sons o f Kohath to carry the ark.As in Leviticus 10 the LORD Himself executed the death penalty.• M anslaughter crim cs In Genesis 4:1-16 the story of Cain who killed Abel is related.This act was regarded as murder (cf.Ex. 21:12), a deed committed out of jealousy and unbelief (c f Heb.11:4).The LORD Himself tried the case and passed judgement.Cain did not undergo the death penalty, but he, however, was cursed.Calvin (1847: 210-211) asks whether this curse was an appropriate punishment for murder and points out the awfulness of Cain's exile and the perpetual unrest in his soul.The fact, however, remains that Cain was not condemned to death.
God's actions need not be questioned or criticized, but it is meaningful trying to understand God's intention.Cain had to pay with his life, but God first gave him the opportunity to live for a while under severe trials.Was it a concession giving Cain time to refonn (become converted)?Was it because there were so few people?Was it to give an example of how, under certain circumstances, mercy could be shown?Was it the abolition of the death penalty?In similar vein we can continue speculating.What, however, remains certain is the fact that the vali dity o f the death penalty was not in question.In later laws it was clearly sti pulated that a murderer had to be executed.God wanted it thus.
Moses was a witness of how an Egyptian killed a Hebrew (Exodus 2:1 l-14Xcf Noth, 1962:35-36) and thereupon he killed the Egyptian.Israelite laws stipulated that, in order to punish a murderer, it was essential that eye witnesses should give evidence.M oses' revenge on the Egyptian was a kind of judicial execution.
Moses thought that God would bring salvation through his deed (c f Acts 7:24-25 and 35).Moses committed this deed on the spur of the moment -nonetheless it became known at tiie court of the Pharaoh and he intended to execute Moses.
Moses thus had to flee for his life.In his later life as 'lawgiver', this incident was never referred to and his eventual death was not regarded as punishment for murder.
David was an adulterer and a murderer (2 Samuel 11-12) and there was probably sufficient evidence of his misdeeds (Geisler, 1990:197).The LORD'S punish ment for the murder and adultery was the curse that David's house would never again rest from the sword and his wives would be dishonoured.Bathsheba's child would also die.David however, was excused (c f Hertzberg, 1964:314).It should have been a double death penalty for a sexual crime and murder.Many questions arise, but it is clear that God did not abolish the death penalty.He did not punish David with death, but an odour of death clung to David.
According to 2 Samuel 13:14 Amnon dishonoured his sister, Tamar, and had to be put to death.Without a fair trial Absalom had Amnon killed (2 Sam.13:32).Absalom fled from the wrath of David, but was later allowed to return (14:24).This history highlights disorderly government and court intrigues, but not the abo lition of the death penalty (Hertzberg, 1964:330).

• Moral transgressions
Shimei cursed the king (2 Sam.16:10).Cursing the king was considered as a crime and could result in the application of the death penalty (Ex. 22:27).In the mentioned instance the death penalty was later carried out (1 Kings 2:8, 9, 37, 46).Another instance o f a moral transgression is the incident where Adonijah plotted to become king after David's death (1 Kings 1:5, 25).He, however, feared the wrath of Solomon and later fled to the altar, clinging to the horns of the altar (1:50).By touching the altar, he was entitled to a fair trial.He was re prieved, but later executed (1 Kings 2:24-25).Abiathar, who conspired with Adonijah against David (1:7) was exempted from the death penalty but was ba nished to Anatot.

Sum m ary • Religious and ceremonial stipulations
According to Genesis 3 man sinned by transgressing God's commandment, which he gave as a special stipulation to Adam and Eve.God, however, reprieved them by not executing an immediate physical death sentence.Leviticus 10 (Nadab and Abihu) and 2 Samuel 6 (Uzzah) relate incidents where religious transgressions are punished according to prescriptions in the Israelitic laws.

• Murder
Examples of murderers who deserved the death penalty, as laid down in principle (Gen.9:6) and in the Israelitic laws ), but who were repriev ed, occur in the revelationary history.Cain was reprieved, the life o f Moses was spared and the death penalty for the adultery and murder by David was not exe cuted by God or the authorities.The reprieve was neither arbitrary nor incon sistent (in contrast to Shelley's view -1984:16), because there were reasons, al though they were not always clear to us.In these stories, however, no legal or judicial stipulations concerning the abolition of the death sentence or the scrap ping of the principle followed.
In 2 Samuel 13 and 14; 2 Samuel 3:22-27, 39; 1 Kings 1 and 2 the deaths of murderers are related.Many aspects reveal only badly managed government and court intrigues, but the abolition of the death penalty is not the issue at stake.

* Moral transgressions
Regarding moral transgressions we can refer to Shimei, wlio cursed the king (2 Sam.16:7), to Adonijali who plotted against Solomon and Abiathar (1 Kings 2;26), who conspired with him (1:7).These incidents do not illustrate the aboli tion of the death penalty; at best they only serve as examples of a temporary reprieve.

C onclusion
In conclusion it can be stated that the various laws and stipulations regarding the death penalty for religious, life-protecting, ceremonial and moral transgressions should in first instance be positioned in their narrow Israelite and in their broader human context.Following upon this, the application of these laws can be tested in the course of revelationary history.
The few examples illustrating breaches of the law, which were punishable by death, clearly emphasize that in general no deduction can be made regarding the validity of the retention or abolition of the death penalty as such.The following, however, must be taken into consideration: * Israelitic laws bound to a specific time and historical context, cannot easily be applied as timeless principles.In the light of the New Testament, in which the ceremonial and religious laws were abolished to a great extent (cf Acts 15:28-29), the stipulations of the Old Testament laws should be re evaluated.This re-evaluation will also affect the punishment regarding the breach of moral laws.

*
Regarding the death penalty for fatal crimes (manslaughter), there is, however, a sound foundation in the principle which is flnnly rooted in the Old Testament.The relationship between God and man is emphasized in an exceptional way.Man is the image of God and therefore the value o f human life is held in high esteem.Man's immunity to murder could only be violated at the cost of incurring the death penalty.To argue against the death penalty for intentional murder is difficult.The death penalty is God's inviolable institution (c f Engelbrecht, 1992:8).
Regarding the conviction or reprieve of criminals guilty of taking a human life, the guideline was that reprieve could only be granted on strength of a thorough and sincere investigation.According to Old Testament guidelines fair and compassionate trial is always demanded and revenge is not per mitted -thus the Old Testament makes ample provision for mitigating cir cumstances.

♦
One principle remains clear and uncompromising: the individual human being, no matter how insignificant, is important in the eyes of God, as he is the only crea ture made in God's image.To kill him is to offend against God's own institution.
With due regard for motivation and mitigating circumstances, the death penalty can therefore still be justified in modem society.The death penalty is one of the means by which man is protected from mindless violence by his own fellow-man, a law first formulated by a just and merciful God Himself Abolition or mitigation o f the death penalty -a perspective on the laws o f Israel____________ 90 In die Skriflig 2H(!) 199-1:89-101 F.N. Lioii-('achel • C erem onial trespasses No laws requiring the death penalty are stated in the Book of the Covenant hi Exodus 19:12, however, approaching the mountain of legislation (law giving) is prohibited by a HQT' nln-decree.He who transgresses, must die -see Exodus Abolition or miligation o f the death penalty -a perspective on the laws o f Israel____________ 92 In die Skriflig 28(1) 1994:89-101 F.N. I.ioii-Cachel • M oral misdeeds Sexual transgressions are not extensively treated in the Book of the Covenant.A few other rules appear in Exodus 21:17 and 22:19.