Does Joseph's intent to divorce Mary show that the death penalty for adultery was not mandatory?/pt

⮜ Perguntas respondidas

Isto pode parecer uma pergunta estranha para alguns, mas esta é uma proposta séria para alguns estudantes de direito bíblico. Aqui está um exemplo do argumento, do livro de Philip Kayser Is the Death Penalty Just?:

No entanto, talvez a ilustração mais significativa desta margem de manobra na lei seja o caso de adultério. Leviticus 20:10 é uma das várias passagens que apelam à pena de morte sobre adultério usando essa frase, möt yumat. Diz, “O homem que comete adultério com outro homem’a mulher, aquele que comete adultério com o seu vizinho’a mulher, o adúltero e a adúltera, será certamente condenado à morte.”

A frase möt yumat está claramente ligada ao adultério, no entanto as Escrituras deixam claro que a vítima do adultério não é obrigada a processar, e se ele ou ela processar, ele ou ela não é obrigado a pedir a pena máxima. Mateus 1:19 chama a atenção para a retidão de Joseph’s quando ele opta por não processar em toda a extensão da lei - “Then Joseph seu marido, sendo um homem justo, e não querendo fazer dela um exemplo público, estava disposto a prendê-la secretamente. ” Ele optou por não lhe impor a pena de morte (tornando-a um “ exemplo público”), mas o texto deixa claro que este divórcio silencioso era consistente com a justiça bíblica. Diz, “sendo um homem justo” ele fez isto.

A intenção de Kayser, no exemplo acima, é mostrar que a frase möt yumat (muitas vezes traduzida por "certamente morrerá") nem sempre significa que a morte é a pena justa por adultério testemunhado em todos os casos, mas meramente mostra uma pena "máxima" para este crime. E se tomarmos o seu exemplo "José e Maria" pelo seu valor facial, então parece que ele sugeriria mesmo nenhuma pena governamental civil poderia ser considerado um possível resultado "justo" da perspectiva bíblica (porque a intenção de José de se divorciar veio sem pena civil). Ele está a seguir a teologia dos "direitos da vítima" de Gary North, segundo a qual a "vítima" do crime (neste caso, o marido) é suposto ter o poder de negar uma pena legal. Gary North confia mesmo no mesmo exemplo "José e Maria" como um linch-pino para o seu argumento no seu livro Victim's Rights:

Neste capítulo, estou a argumentar que o Estado não possui autoridade independente para processar se a vítima decidir voluntariamente não processar um argumento baseado fortemente na decisão de José’ a decisão do Estado, como homem justo, de prender Maria em privado.

De facto, a tese primária do livro do Norte desmorona se ele não puder usar o caso de José e Maria para o apoiar. A aplicação desta tese por parte de Kayser é:

As Escrituras deixam claro que a vítima do adultério não é obrigada a processar, e se o fizer, não é obrigada a pedir a pena máxima.

Vamos separar a reivindicação de Kayser em duas declarações:

1. A vítima de adultério não é obrigada a processar judicialmente.
2. Uma vítima de adultério que processa pode pedir uma pena menor do que a pena de morte.

Nenhuma destas afirmações é "clara" das Escrituras, muito menos o exemplo de "José e Maria". Por uma questão de argumentação, vamos assumir que a afirmação número 1 é verdadeira, e que José poderia ser considerado um "homem justo" ao recusar-se a processar Maria por adultério. Afirmo com a escritura, claro, que José era um "homem justo". Discutiremos a situação de José em pormenor mais tarde e descobriremos algumas razões óbvias pelas quais ele não processaria Maria. Mas Kayser está a tentar confundir as duas questões acima, quando afirma que José "opta por não processar judicialmente até ao limite máximo da lei". De facto, José optou por não "processar" em tudo. Pretendia "prender" (divórcio) Maria privadamente. Segundo a lei bíblica, não havia tribunais "privados" ou "secretos": os casos eram tratados nas portas da cidade, da forma mais pública, para que todos pudessem ver que estava a ser feita justiça, e qualquer pessoa podia falar se quisesse contradizer uma falsa testemunha.

This may surprise some people, but under Biblical law, men were not required to get permission from the civil government to divorce their wives (Deut. 24:1). I'll discuss this in greater detail below, because this is another point which Kayser gets wrong. Men were required by Biblical law to issue a "writ of divorcement," but this was not "supervised" or "authorized" by any judge, and did not require any public (or even private) "prosecution." Under Biblical law, a judge would only be sought out (by Mary, presumably) if Joseph refused to give her the writ, as he was required to by law.

So, if statement number 1 is true in the case of Joseph, then statement number 2 cannot logically follow from the Joseph and Mary case. If Joseph refused to prosecute (as the scripture in Matthew implies), then we don't know what penalty he would have asked for, because he was never in a position to ask for a penalty from a judge. For all we know, if he had decided to prosecute (we'll see why he didn't in a moment), he might very well have supported the death penalty. Of course, in the real world, the angel intervened, even before the divorce. But would anyone suggest that Joseph would have been "unjust" to support the death penalty for adultery? Even Philip Kayser believes that the death penalty for adultery is "just."

Let's look closer at Joseph's (difficult) situation, and why he would choose not to prosecute. Here are some things we know for sure:

1. Mary and Joseph were betrothed.
2. Adultery against a betrothal covenant is a death penalty offense (if there are at least two witnesses willing to step forward): Deut. 22:23-24.
3. Joseph thought that Mary had committed adultery (otherwise he would not have intended to divorce her; he was a "just man," and a just man would only divorce for some kind of adultery/fornication: Matt. 19:4).
4. Joseph had no witnesses to the adultery to present to a judge. How would he have proved that he wasn't the father, unless two witnesses were prepared to testify? Of course, he could testify to his own behavior, but that is only one witness. (see below about whether Mary was allowed to testify)
5. Mary had (surely) told Joseph the good news that the angel had announced to her. Joseph, understandably, didn't believe her, but he could not know for sure that she was lying. What if she were telling the truth?
6. If Joseph were a "just man" (and he certainly was), then he would be committed to upholding just Biblical legal procedure, which would have allowed the defendant to testify in defense of herself in court, before the judges. However, Mary would not, in first century Judea, have been allowed to testify in her own defense (relaying what the angel had told her), because women were not allowed to testify in the unjust Jewish courts of that time. Joseph would be placing her at the mercy of an inherently unjust legal procedure, because they were not following Biblical law.
7. In fact, to bring a death penalty charge, (even if Joseph had witnesses, which he did not) Joseph would have had to take Mary all the way down to Jerusalem, to stand before the highest court in Judea -- the Sanhedrin -- which was (at this time) the only court authorized by the Roman government to convict people on death penalty offenses like adultery. Furthermore, at the time of Jesus birth, the Sanhedrin had been packed with Herod the Great's chosen lackeys (because he had killed off most of the previous members, according to the Jewish historian Josephus). No "righteous man" in Judea would have expected true justice from Herod's Sanhedrin.
8. Consider what might have happened if Joseph had gone before the Sanhedrin and had been asked (under oath) what Mary's explanation was (because she herself couldn't testify)? To testify truthfully, Joseph would have to have said: "She claims that she was visited by an angel, and that God had created the child she is carrying, and that 'The Lord God will give him the throne of his father, David, and he will reign over the house of Jacob forever. There will be no end to his kingdom.' [Luke 1:32-33]" Herod's lackeys would have promptly reported this to Herod, and we know how long the innocent child would have lasted from that point (see Matt. 2:16-18). Joseph, being a righteous (and wise) man, would not have wanted to put an innocent child at risk in this way.

Given all of the above facts, is it any wonder that Joseph could not have gotten a "just" outcome from any court he had access to? Can his choice not to go before unjust judges be used to imply anything about Biblical law?

The answer is clearly no. There is no evidence of an alleged "victim's right" to dismiss a mandatory death penalty crime from the case of Joseph and Mary.

On the other hand, Joseph had a Biblical right to divorce Mary privately without having to prove adultery (Deut. 24), and that's what he was planning to do. This is yet another point which Kayser gets wrong:

Indeed, if this interpretation of the crime of adultery is not taken, then it is impossible to understand the many passages that allow sexual sins as grounds for divorce. (How can there be a divorce if the penalty of death always had to be applied?!) ... Christ made clear that adultery was grounds for divorce in Matt. 5:31-32. If you could prove adultery in court to sue for divorce, you could certainly use the same grounds for capital punishment. You couldn’t just divorce people because you thought they had committed adultery. Deuteronomy 22:17-19 makes that clear. The case had to be proven beyond a shadow of a doubt in court. In Ezra 10, Ezra tried each case of improper marriage on its own merit. He didn’t make everyone with a non-Israelite wife divorce her. That would be unlawful according to Deuteronomy 21 and other passages. Paul is applying the Old Testament when he tells believers not to leave unbelievers who are willing to dwell with them. And if you read the chapter carefully you will see that Ezra didn’t do it. Each couple had a court case examination, and Ezra said, “Let it be done according to the law.”

Kayser brings up two scriptural cases which -- he asserts -- show that men were required to get civil government permission before divorce. Let's look at each of them.

1. Deuteronomy 22:13-19 is a case of a husband publicly slandering his wife about premarital unfaithfulness (discussed here). It doesn't state that he was seeking a divorce, or even that he had actually divorced her by putting her away. It doesn't state that he had brought witnesses before a judge to prove a case of adultery. It doesn't state that he is required to go before the judge before getting a divorce. Verse 14 simply states that the man is slandering his wife publicly (and, by implication, bringing dishonor upon her parents). The judges -- far from already knowing any facts of the case -- actually have to be told by the girl's father what the man has been saying (see verses 16-17). The case in verses 13 through 19 is not dealing with a man who accuses his wife in court either of adultery or lying about her virginity (these death penalty offenses would require at least two actual witnesses, according to the explicit law in Deut. 19:15).

This case is describing a legal action brought by the parents of the girl against the man's public slander. The parents are able to prove the husband's slander by the use of the "evidences of virginity" (possibly a blood-soaked garment). The lack of such evidence does not prove the girl's guilt -- it's lack would simply prevent the parents from challenging the husband's slander, in the first case. The separate case cited in verses 20-21 would require the husband to bring at least two witnesses against the girl (in accordance with Deut. 19:15) and would result in a mandatory death penalty (v. 21), not simply divorce.

2. The action by Ezra described in Ezra 9-10 dealt with Israelites who had returned after the Babylonian captivity, and had married foreign wives, in violation of the law in Deuteronomy 7.

As reivindicações de Kayser: "Ezra julgou cada caso de casamento impróprio pelo seu próprio mérito" Esta é uma alegação falsa, com a qual lido na seguinte resposta:

Does the divorce of the foreign women in Ezra 9-10 show that civil government has authority to dissolve marriages or preside over "divorce trials"?

Kayser claims: "Paul is applying the Old Testament when he tells believers not to leave unbelievers who are willing to dwell with them." This claim actually has nothing to do with "proven" adultery as a valid ground for divorce, or with the alleged Biblical requirement to get civil government permission before issuing a divorce certificate. Paul is simply telling Christians who converted after they were married not to separate from their spouses (divorce), merely because their spouses were still non-Christians. This is not comparable to the case in Ezra, where the men willingly entered into Biblically-illegal "marriages."