Difference between revisions of "Don't the actions of certain Israelite kings show that death was only a maximum civil penalty?"

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== Legal expulsion of ''qadeshim'' implicit in the law ==
 
== Legal expulsion of ''qadeshim'' implicit in the law ==
  
The word ''qadeshim'' is actually used in one place in the law. Here it is:
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The ''qadeshim'' are actually mentioned in one place in the law. Here it is:
  
 
{{:Scriptblockformat|There shall be no ''qadesha'' [female cult prostitute] of the daughters of Israel, neither shall there be a ''qadesh'' [male cult prostitute] of the sons of Israel.|scriptref=Deut. 23:17}}
 
{{:Scriptblockformat|There shall be no ''qadesha'' [female cult prostitute] of the daughters of Israel, neither shall there be a ''qadesh'' [male cult prostitute] of the sons of Israel.|scriptref=Deut. 23:17}}

Revision as of 23:24, 19 May 2021

Answered Questions

Introduction

In addition to the argument from Numbers 35:31 (which I have dealt with elsewhere), commentators sometimes point to the actions of certain Israelite kings as evidence that the Biblical death penalties were merely "maximum" penalties. For example, Douglas Wilson argues (with respect to the death penalty in Leviticus for male homosexual acts):

The objection to the law in Leviticus is that we are inconsistent to keep the prohibition and not to keep the penalty. Why opposition to homosexual intercourse on the part of modern Christians, but no one is urging the death penalty for it? This objection misunderstands the nature of the Old Testament case law system. The death penalty in this instance was not a minimum penalty, but rather one of the options, depending on the circumstances. Centuries later, three righteous kings (Asa, Jehoshaphat and Josiah) banned the sodomites who had set up operations near the Temple, and they are praised in the text, even though they executed no one.[1]

Wilson then quotes three passages from the books of 1 and 2 Kings (listed below) and concludes: "So then, execution of homosexuals was not mandatory, not even in the Old Testament."

When Doug Wilson says "one of the options," he is probably counting on most of his readers to be ignorant of what Biblical law says about the civil death penalties. Our modern legal systems (usually) give broad discretion to judges in sentencing. This is one of the ways that our justice system becomes an "injustice system": judges show partiality based upon various "circumstances," and treat people how they want. Or the prosecutor (with the agreement of the judge) threatens a defendant with the "stick" of greater punishment, holding out the "carrot" of a lesser punishment if the defendant will only confess to the crime and forego his right to a trial.

Wilson's use of the word "options" implies that Biblical law gives the judge a lot of discretion about what a penalty could be in the case of witnessed, legally-proven homosexual acts. In fact, no such "options" are given, anywhere in the law:

13 If a man lies with a male, as with a woman, both of them have committed an abomination: they shall surely be put to death [mot yumat]; their blood shall be upon them.Lev. 20:13

"Ye shall not surely die"

The phrase which Douglas Wilson is calling into question (indirectly) is the Hebrew pleonasm "mot yumat", which is often translated: "shall surely be put to death". In fact, the entry on "mut" (Hophal imperfect) in the Theological Dictionary of the Old Testament gives an example English rendering: "shall be put to death unconditionally."[2] There are good reasons to understand mot yumat as a command for an "unconditional" death penalty. These are discussed in more depth in How do we know whether a Biblical law death penalty is mandatory?

Returning to the original question: should we conclude that king Asa, his son king Jehoshaphat, and later king Josiah failed to follow Biblical law on this issue of homosexual acts? Or do their scripturally recorded actions somehow require implicitly that the Biblical mot yumat death penalties were merely "maximum" penalties?

Examining the narrative

First, let's look at the passages in question:

11 And Asa did that which was right in the eyes of the Lord, as did David his father. 12 And he took away the sodomites(qadeshim) out of the land, and removed all the idols that his fathers had made.1 Kings 15:11–12

46 The remnant of the sodomites(qadeshim), that remained in the days of his father Asa, [Jehoshaphat] put out of the land.1 Kings 22:46

7 And [Josiah] brake down the houses of the sodomites(qadeshim), that were by the house of the Lord, where the women wove hangings for the grove”2 Kings 23:7

We should note that the word referring to the people committing homosexual acts is the Hebrew word qadeshim, a plural form of "קָדֵ֖שׁ" (qadesh). Literally translated, the word qadeshim means "holy persons". But the context clarifies that these are people associated with pagan cultic prostitution. Modern English translations render the word variously as "perverted persons" (NKJV), "male cultic prostitutes" (NET), "cult prostitutes" (NASB), "male cult prostitutes" (ESV), and "male shrine prostitutes" (NIV).

When the scriptures use the Hebrew term qadeshim, it isn't clear that they are focusing solely on the homosexual aspect of the behavior. It is even probable that the sexual acts involved were not done in a publicly witnessable way. The commentator Michael Grisanti explains this word:

The individuals designated by these names were dedicated to temple duty (at pagan worship sites). These cultic prostitutes would engage in various immoral activities with pagan worshipers (for pay that funded the pagan temple) in an effort to stimulate the pagan gods to bring fertility to the worshipers’ land, herds, flocks, and families. This practice seems to have occurred in different parts of the ancient Near East (though the evidence is sketchy; cf. E. Yamauchi, “Cultic Prostitution: A Case Study in Cultural Diffusion,” in Occident and Orient: Essays Presented to Cyrus H. Gordon on the Occasion of his Sixty-Fifth Birthday [ed. Harry A. Hoffner Jr.;AOAT; Neukirchen-Vluyn: Neukirchener, 1973], 213–22). More recently, several scholars have questioned or denied the identification of these terms with sacred prostitution (Goodfriend, ABD, 5:507–8; van der Toorn, ABD, 5:509–12; Ringgren, TDOT, 12:523–27, 542–43; Tigay, Deuteronomy, 480–81; Westenholz, “Tamar, Qedēšā, Qadištu, and Sacred Prostitution in Mesopotamia,” HTR 82 [1989]: 245–65, esp. 248–49). They suggest that these terms envision individuals involved with pagan worship (priests or priestesses), but without any sexual connotation. While it should be recognized that ancient Near Eastern evidence is not abundant, the biblical evidence seems to make that association clear.[3]

From this point on, I am going to refer to the offenders in the above verses either as qadeshim or "cult prostitutes".

Things we are not told

It is notable that these three narrative texts cited actually do not claim that the qadeshim were witnessed in actual homosexual acts. Just as modern day prostitutes can often be recognized by how (and where) they present themselves, it seems that the qadeshim could be recognized as such without observing their specific criminal acts.

The narratives also do not say exactly how, for example, those kings "put away" or "took out" the qadeshim from the land. Wilson claims (in the quote above) that the kings "executed no one". But the scripture doesn't say this. Wilson is just speculating, based upon a scriptural report which is written in a very general way.

A thought experiment

Consider the following thought experiment: you are a king in Judah, and find that for decades the country has been lax in enforcing the law about cult prostitutes (Deut. 23:17) or the law about homosexual acts (Lev. 20:13). You repent and decide that you will start enforcing the law.

You announce publicly: "OK, we're going to start implementing the mandatory death penalty against witnessed homosexual behaviour, starting now."

What do you think will happen?

It seems likely that the cult prostitutes will figure out that their services are no longer wanted in that jurisdiction. They will hastily pack up their things and move out of the country. You will ask some people to "break down" the houses of prostitution which they used to live in. Congratulations, king! You have just "put away" all the qadeshim from the land!

The above may be exactly what Asa and Jehoshaphat did. Or, they might have had to put a few qadeshim to death (after a proper trial, with witnesses) before the rest got the hint and left. These possibilities explain the scriptural report perfectly, without putting the kings' actions in opposition to the mandatory death penalty for homosexual acts in Lev. 20:13.

But there are still other explanations which might better explain the text.

Legal expulsion of qadeshim implicit in the law

The qadeshim are actually mentioned in one place in the law. Here it is:

There shall be no qadesha [female cult prostitute] of the daughters of Israel, neither shall there be a qadesh [male cult prostitute] of the sons of Israel.Deut. 23:17

We could read the above law as implying the ability for the citizenry of the nation to "put away" from the land anyone who has either explicitly identified themselves before witnesses as a qadesha or qadesh, or who satisfies certain criteria of identifiability (e.g. dressing a certain way and loitering outside a temple, perhaps?). This legal authority might be akin to a property owner's right to evict a trespasser. Consider, for example, the right of a shop owner to expel a prostitute from the bounds of his property.

If this type of authority were implicit in this Deut. 23 law, it would not require witnessing any actual idolatrous sex acts (acts which would require the death penalty); it would give any property owner in the jurisdiction the authority either to expel (using proportionate force) or to deny entry to these prostitutes merely by identifying them in some legally-specified way (e.g. their marks of affiliation with those cultic practices, or witnessed acts of solicitation).

"Put out" or "burned out"/"exterminated"?

Let's look at a different translation of one of those passages which we quoted above:

46 And from the land [Jehoshaphat] exterminated [ba'ar] the remnant of the male cult prostitutes [qadeshim] who remained in the days of his father Asa1 Kings 22:46, ESV, emphasis added

The reason the ESV uses the word "exterminated" here is that the Hebrew verb is the Piel form of ba'ar (בָּעַר). This is the same verb form used in Deut. 17:7, the law which prescribes death by stoning for someone (like the qadeshim) who worships other gods:

7 The hands of the witnesses shall be first against him to put him to death, and afterward the hands of all the people. So you shall eliminate [ba'ar] the evil from your midst.Deut. 17:7, NASB

On this verse, the commentator Craigie says that the Piel form of ba'ar: "has the sense of 'burning out, purging out by fire.'" It is likely that the "extermination" mentioned in 1 Kings 22:46 actually did involve using the death penalty against these qadeshim. And we have further suggestive evidence from the reign of Josiah:

20 And [Josiah] sacrificed all the priests of the high places who were there, on the altars, and burned human bones on them.... Moreover, Josiah put away[ba'ar] the mediums and the necromancers and the household gods and the idols and all the abominations that were seen in the land of Judah and in Jerusalem, that he might establish the words of the law that were written in the book that Hilkiah the priest found in the house of the LORD.2 Kings 23:20, 24, ESV, emphasis added

Notice that Josiah's intent was to "establish the words of the law that were written in the book that Hilkiah the priest found". There is very little question among conservative commentators that this book was a copy of Deuteronomy.Deut 28:61, 29:21, 30:10, 31:26 So when we find Josiah eliminating/exterminating (ba'ar, Deut. 17:7) various forms of evil from the midst of the people, just like the book of Deuteronomy required (Deut. 13:5, Deut. 17:7, Deut. 19:19, Deut. 21:21, Deut. 22:21,22,24, Deut. 24:7), it is a safe assumption that he was either:

  1. bringing the civil death penalty to bear upon witnessed acts of the qadeshim, just like he did upon the priests of the high places (2 Kings 23:20), or
  2. using an implicit authority found in Deut. 23:17 to expel those who identified themselves as qadeshim.

Conclusion

We've examined the narratives and found multiple ways that the action of the kings can be reconciled with Biblical law. In no case can these narrative passages be used to implicitly contradict the unconditional nature of the mot yumat ("surely die") death penalties.

  1. https://dougwils.com/books-and-culture/s7-engaging-the-culture/death-penalty-hope.html
  2. Botterweck, Theological Dictionary of the Old Testament, vol. 8, 201-202
  3. Grisanti, Deuteronomy, "23:17"