Israelite Law: Criminal Law

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ISRAELITE LAW: CRIMINAL LAW

Criminal law is a modern legal concept that relates to punitive actions taken by society when confronted by conduct that is considered socially harmful, morally offensive, or a threat to fundamental values or norms. Crimes are public offenses because the community, often acting through its authoritative representation, punishes the offender. The claims of any injured individual are submerged into the public actions of the community; society as a whole reacts as if it were the injured party. The punishment imposed on the criminal offender is often corporal: death, mutilation, or beating. Punishment might also be exile, imprisonment, or public humiliation. Sometimes monetary fines are imposed as well, but these go to the state, not to an injured individual.

In modern times, crimes are to be distinguished from torts, which belong to the category of civil law. Torts are offenses that society is satisfied to leave private. To redress a tort, the injured individual either acts alone or seeks the aid of kinfolk or powerful allies (self-help). In more developed societies, the king or government might help the individual enforce his claims. But the injured individual acting privately in civil law can exact only indemnity or monetary compensation from the offending party.

Biblical Concepts

The literary books that constitute the Hebrew Bible only partially reveal the legal practices of ancient Israelite society. One can, however, discern elements of criminal law among the stated commandments or prohibitions and casuistic legal formulations as well as in the details of narrative elements. All of this ancient evidence must be considered, although, to be sure, one does not know the extent to which it reflects the ancient realities or actual practices.

One cannot tell whether the ancient Israelites articulated a conscious distinction between criminal and civil law. Clearly, the lines between private and public offenses were drawn differently from those of modern, Western societies. Some offenses like battery (Ex. 21:18–19 [verse citations unless otherwise specified are to the Eng. version]) and theft (Masoretic text Ex. 21:37, 22:3), which today are criminal or public, were still considered to be private torts in the Bible. Conversely, offenses such as witchcraft (Ex. 22:18, Lv. 20:27, 1 Sm. 28:3), adultery (Lv. 20:10; Dt. 22:20–24; Ez. 16:38–41, 23:45–49), and violation of the Sabbath (Ex. 31:14–15, 35:2; Nm. 15:32–36), which in modern secular societies are either private torts or nonactionable, were in the Bible considered serious public offenses or crimes.

There are no special Hebrew terms for crime and criminal; the same words, sin, transgress, and so forth, are used to describe both human offenses against other people and those against God. Religious and secular concerns are commingled, and most of the extant criminal laws are presented as God's own pronouncements. In this sense, all crimes are offenses against God. But one cannot assert that all sins are crimes. God may punish all sins, but the term crime is here reserved to describe only those public offenses that were punished by Israelite (i.e., human) society.

Crimes against King, Parents, and Civil Authorities

The biblical narratives relate that the death penalty was meted out by the king for treason (1 Sm. 22:13–19; 1 Kgs. 1:50–53, 2:23–24), regicide (2 Sm. 1:14–16, 4:9–12; 2 Kgs. 14:5–6), cursing God or king (2 Sm. 19:21–23; 1 Kgs. 2:46, 21:9–16; cf. Ex. 22:28, Lv. 24:10–16), "treasonous" prophecy against the state (Jer. 26:8–24, 2 Chr. 24:19–21), and witchcraft (1 Sm. 28:9–10). These executions were carried out by the king's men; at other times, by mass actions such as stoning, preceded by a public trial. "Treasonous" prophecy was sometimes treated as a minor crime, punished by imprisonment, beating, or exile (1 Kgs. 22:13–27; Jer. 20:2, 32:2–3; Am. 7:9–13).

There was a stated duty to obey both parental and civil authority. The death penalty was prescribed for those who rebelled against the courts (Dt. 17:8–13) as well as against the ruler (Jos. 1:18). There are similar provisions for striking a parent (Ex. 21:15), cursing a parent (Ex. 21:17, Lv. 20:9), or rebelling against parental commands (Dt. 21:18–21).

Sexual Offenses

The death penalty was also prescribed for a variety of sexual offenses: adultery (in addition to the references cited above, see Gn. 20:3, 38:24; Dt. 22:22–24), sexual relations of a man with his father's or son's wife (Lv. 20:11–12) or with his mother or daughter (Lv. 20:14), rape of a married or even a betrothed woman (Dt. 22:25–27), bestiality (Ex. 22:19, Lv. 20:15–16), male homosexuality (Lv. 20:13), and prostitution engaged in by the daughter of a priest (Lv. 21:9).

Idolatry

The biblical laws reflect the long conflict with idolatry and polytheism that came to a climax at the end of the monarchy. The death penalty is prescribed for a variety of idolatrous acts (Lv. 20:2–5, Dt. 17:2–7) as well as for promoting idolatry to others (Dt. 13:1–5, 13:6–11, 18:20–22; cf. the general slaughter of idolaters in Exodus 32:27). Deuteronomy 13:12–18 assigns the death penalty to an entire city and its livestock; all other possessions and goods were considered ḥerem, that is, to be dedicated to God and burned by fire (cf. Ex. 22:20).

Homicide and Manslaughter

The biblical response to homicide hovers between the spheres of private and public law. The relatives and allies of the victim retained the right to take action; society allowed them to slay the offender or to accept monetary compensation for the death of kin. Their choice of action, however, depended upon whether death was due to negligent homicide, involuntary manslaughter, or murder; the free or unfree status of the victim was also a factor to be considered. The negligent owner of the ox that fatally gored a person (Ex. 21:28–32) only owed compensation for a dead slave but was subject to the death penalty if the victim was a free man. The owner, however, was allowed to negotiate compensation in that case, too; but the ox was put to death in either case. A man who committed involuntary manslaughter could rightfully be slain by the relatives of the victim; but the civil authorities could intervene to grant the manslayer asylum (a form of exile) in a "city of refuge" (Ex. 21:12–13, Nm. 35:1–34, Dt. 19:1–13). The normal penalty for murder was death (Gn. 9:6, Ex. 21:14). In most cases, vengeance was taken by kin or allies of the victim (Gn. 4:11–15, 2 Sm. 14:4–11; cf. the case of wrongful vengeance, 2 Sm. 3:26–30, 1 Kgs. 2:5–6). Public outrage could sometimes boil over into community action against the slayer (Ex. 21:14; Dt. 19:11–12; Jgs. 20:12–13; Ez. 16:38–41, 23:45–49).

The giving of compensation in cases of murder is strongly condemned in Leviticus 24:21 and Numbers 35:31–34 (cf. Lv. 24:18), because biblical law generally considers murder a public, not private, offense. Glimpses of that practice, however, may be seen in 2 Samuel 21:1–4 and 1 Kings 20:39. There is evidence that compensation was given for a number of other offenses where the death penalty was prescribed. Compensation for adultery is suggested in Proverbs 6:30–35 (in Leviticus 19:20–22 the slave status of the female obviates punishment). Compensation replaces the death penalty for breaking a solemn oath in 1 Samuel 14:24–46 but not in Judges 11:30–40. One may also note the institution of ʿerekh ("monetary equivalents"), which could be offered in place of a dedicated object, including persons (Lv. 27:1–33), except in the case of ḥerem (Lv. 27:29). ʿErekh is offered in order to redeem potential victims of exile or death in 2 Kings 23:35.

Theft

Even more than the response to homicide, the responses to theft hover between public and private law. Kidnapping and sale of a person was punished by death (Ex. 21:16, Dt. 24:7), but the theft of animals was settled by compensation (MT Ex. 21:37, 22:3). There are, nevertheless, hints of capital punishment in the outbursts of King David in 2 Samuel 12:5–6 (cf. 1 Sm. 26:16) and of Jacob in Genesis 31:32. A thief caught stealing during the day was not to be killed, but a thief caught in the night could be slain without penalty (Ex. 22:2). This same distinction, between daytime and nocturnal theft, also appears in the Babylonian laws from Eshnunna (modern-day Tell Asmar, Iraq; sections 12–13). The taking of property belonging to God (ḥerem ) was punished by death (Jos. 7:1, 7:18–26).

Multiple Penalties

One encounters the actual commingling of private and public concerns in cases where a criminal penalty was imposed in addition to the payment of compensation. The man who brought a false charge of adultery against his betrothed wife was punished on two levels: The father of the woman received monetary compensation, and the man was beaten (Dt. 22:13–19). Beating could apparently also be added, as a criminal penalty, to the settlements reached in civil or private disputes (Dt. 25:1–3).

Talion

Battery, as noted above, was normally a private offense. But battery became a criminal or public matter if it caused serious, permanent injury or death (Ex. 21:20–23). The criminal penalties varied according to the injuries sustained; one finds repeated expression of this principle of lex talionis (Ex. 21:23–25, Lv. 24:19–20; for false accusation, see Dt. 19:15–21). The harshness of the talionic rules has led some interpreters, both ancient and modern, to question their literal application, especially in noncapital cases. One could compare the offering of compensation in place of the death penalty for homicide, discussed above. Yet there are instances where talion was literally imposed: the cutting off of thumbs and toes in Judges 1:6 and mutilation for battery leading to serious injury in Deuteronomy 25:11 (there is no exact talionic parity between male and female in this case).

There is some textual evidence that the harsher practices of earlier times were gradually modified or eased in later times. This is reflected, for example, in the discontinuation of the practice of assigning collective guilt for crimes committed by one individual (Dt. 24:16, 2 Kgs. 14:5–6; cf. 2 Sm. 21:1–9, 2 Kgs. 9:24–26). Similarly, for the change in the treatment of the corpses of the executed, one may contrast 2 Samuel 21:9–14 with Deuteronomy 21:22–23.

Criminal Law and Sacred Law

Divine as well as human punishment was expected for some criminal offenses, such as cursing a parent (Dt. 27:16), bestiality (Dt. 27:21), sexual relations of a man with his son's or father's wife (Dt. 27:20, 27:23), Sabbath violation (Ex. 31:14). These mark points of overlap between criminal and sacred law. Sacred law involved God and human, and it transcended the human agencies of court, judge, and so forth. It has been noted that the Decalogue (Ex. 20:2–17, Dt. 5:6–21) addresses areas of concern that are also treated in the criminal laws; similarly, Leviticus 18:8–23 promises divine punishment for offenses that are given societal penalties in Leviticus 20:10–21. (Jewish commentators of late antiquity came to consider offenses lacking societal penalty to be a category of lesser crime, punishable by beating; see Mishnah Makkot 3.1–10 and Maimonides' Mishneh Torah, Sanhedrin 18–19.)

Bibliography

Diamond, A. S. Primitive Law, Past and Present. London, 1971. A good general historical introduction to ancient law.

Greenberg, Moshe. "Some Postulates of Biblical Criminal Law." In Yehezkel Kaufmann Jubilee Volume, edited by Menahem Haran, pp. 5–28. Jerusalem, 1960.

Haase, Richard. "Körperliche Strafen in den altorientalischen Rechtssammlungen." Revue internationale des droits de l'antiquité 10 (1963): 55–75. A comparative study of corporal punishments in ancient Near Eastern law collections. This work adds useful perspective to the consideration of biblical materials.

Jackson, Bernard S. "Reflections on Biblical Criminal Law." In his Essays in Jewish and Comparative Legal History, pp. 25–63. Leiden, 1975. Contains a thoughtful critique of earlier studies.

Phillips, Anthony. Ancient Israel's Criminal Law. Oxford, 1970. Useful for its bibliography and scope; Phillips approaches the subject from a viewpoint different from Diamond's.