THE  ILIFF  SCHOOL  OF  THEOLOGY  

 

 

 

PURGING  THE  EVIL:  CAPITAL  CRIMES  IN  DEUTERONOMY  

 

 

 

 

SUBMITTED  TO  MARK  GEORGE  

IN  PARTIAL  FULFILLMENT  OF  

BS  3092  H.B.  LITERATURE:  DEUTERONOMY  

 

 

 

 

BY  

NICK  ELDER  

MARCH  9,  2012

 

   

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INTRODUCTION  

The understanding of idolatry in Deuteronomy has played an essential role in formulating

an identity of the Deuteronomic community and its individuals. Kenton Sparks represents the

mainstream view of identity formation with regards to the book, stating, “in Deuteronomy, the

most important criterion for community membership was one’s status with respect to Yahweh,

the national deity of Judah (and Israel).”1 Within this framework, nothing is more instructive to

identity formation than the individual’s relationship to YHVH and the covenant. For Sparks, this

relationship transcends any ethnic, racial, or cultural boundary. While this approach is not

inherently wrong, it misses an important aspect of law in Deuteronomy; namely, the individual’s

relationship to both the nation as a whole and to other individuals. By focusing on the

relationship to the divine in terms of the covenant, a focus on the individual’s relationship to the

rest of the community is sacrificed. The commands to capital punishment in Deuteronomy betray

the proposition that identity in Deuteronomy is solely, or even primarily, concerned with the

individual’s relationship to the Deity.

In this paper I will look to the capital punishment commands in Deuteronomy, which are

explicitly intended to “purge the evil from your midst” (ובערת הרע מקרבך).2 I will argue that these

commands to capital punishment and the resultant purge are all concerned with an individual’s

action against the social fiber of Israel, whether the action is against the group as a whole, or

1 Kenton L. Sparks, Ethnicity and Identity in Ancient Israel (Winona Lake, IN: Eisenbrauns, 1998), 264. 2 This is the most common wording of the phrase occurring in Deut. 13.5; 17.7, 12; 19.19; 21.21; 22.21, 24. In Deut. 17.12 and 22.22 מקרבך is replaced by מישראל. Deut. 19.13 stands as the lone 2 This is the most common wording of the phrase occurring in Deut. 13.5; 17.7, 12; 19.19; 21.21; 22.21, 24. In Deut. 17.12 and 22.22 מקרבך is replaced by מישראל. Deut. 19.13 stands as the lone example of the occurrence of the phrase as ובערת דם–הנקי מישראל. There is little significance in the variance between the two nouns to which the מן of source is attached. The absence of the הרע may be hold more significance, and thus, 19.13 will not be used in any substantial way in the body of this paper.

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against another individual member of the community. What this indicates is that the most serious

offenses in the law book3 of Deuteronomy are not reserved to offenses against YHVH, but

against the nation and its constituent individuals. This is not to say that Deuteronomy is not

concerned with idolatry, but rather, that the concern in Deuteronomic scholarship with idolatry

and its effects on formulating identity have eclipsed the attention due to those laws concerned

with actions that disrupt the social integrity of Israel.

Space constraints will not allow me to explore each of these texts individually, which

would be a somewhat dull and monotonous task anyway. For this reason I will focus on the three

laws that I understand not only to be the most informative in regard to the thesis presented, but

also the most interesting. These are the case of the rebellious son (21.18-21), the case of the

delinquent daughter4 (22.13-21), and the case of the kidnapper (24.7). These texts are

characteristic of the capital punishment laws that have the ‘purge formula’ appended to them in

that they each deal with offenses against other individuals, but also the social fabric of the

community as a whole.

DRIVING PRESUPOSITION

The driving presupposition behind this paper is that a nation’s laws will be a strong

indication of its values and agendas. As Moshe Greenberg states, “it is not possible to

comprehend the law of any culture without an awareness of its key concepts, its value

judgments.”5 The reverse is also true; it is not possible to comprehend a nation’s key value

judgments without being aware of its laws. As interpreters situated in a modern context, we may

3 All of the capital crimes naturally fall into the law book, chapters 12-26. 4 This clever title was coined by Joseph Fleishman in “The Delinquent Daughter and Legal Innovation in Deuteronomy xxii 20-21,” in VT 58 (2008): 191-210. 5 Moshe Greenberg, “Some Postulates of Biblical Criminal Law,” in The Song of Power and The Power of Song: Essays on the Book of Deuteronomy (ed. Gary N. Knoppers and Kenneth A. Ristau; Winona Lake, IN: Eisenbrauns, 2009), 285.

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not be able to exegete every law in the HB, or in Deuteronomy in particular, and determine

corresponding social phenomena. However, detecting trends within bodies of literature, or in this

case a body of literature, can be an indicator of what these trends imply.

Capital punishment is arguably the ultimate punishment that any law could affix as its

penalty. Looking to the history of law(s) it would seem to follow that those laws whose

transgression resulted in death in various societies and various times would be the laws that

reveal most clearly the underlying values of that culture. In this way “capital crimes seem to be

an appropriate index to the social world and most profound fears in Deuteronomy…moreover,

crimes carrying the death penalty indicate those acts which are perceived as most dangerous and

detrimental to society and its existing order.”6 Accordingly, a study of the capital crimes in

Deuteronomy will reveal a significant aspect of its value judgment, namely that actions against a

member, or members, of the community are the highest offenses that can be committed. Idolatry,

then, is not the most detrimental transgression to society or the existing order, nor can it be seen

as the highest offense. Rather, based on the analysis of capital crimes, group cohesion is of

highest concern in the law book. Actions that threaten this cohesion are most detrimental to the

social fabric of the society.

THE CAPITAL CRIMES

There are eleven commands to capital punishment in Deuteronomy, eight of which are

for the explicit purpose of “purging the evil from your midst.” Each one of these eleven capital

crimes are primarily concerned with action against another member of the community. Because I

will only exegete three passages in this paper it is beneficial to list all of the capital crimes in

6 Louis Stulman, “Encroachment in Deuteronomy: An Analysis of the Social World of the D Code,” JBL 109 (1990): 615-616.

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Deuteronomy. In doing so I hope to, first, reveal an exegetical backdrop for the capital crimes I

will explore and, second, reveal the nature of the offense in each of the laws that call for capital

punishment in Deuteronomy.

The Capital Crimes in Deuteronomy Deut 13.2-6:7 a prophet or diviner who instigates idolatry Deut 13.7-12: a family member or intimate friend who instigates idolatry Deut 13.13-19: A region or city that has committed apostasy and incites their apostasy Deut 17.2-7: A breach of covenant by a man or woman who serves other gods Deut 17.8-13: Disobedience of an appointed priest of Israel Deut 19.4-13: Premeditated murder against a member of the community (לרעהו) Deut 21.18-21: An unruly son Deut 22.13-21: The delinquent daughter Deut 22.23-24: A man and an engaged woman who are caught in the act of adultery Deut 22.25-27: A Rapist in a field Deut 24.7: Someone who kidnaps or attempts to sell a son of Israel (בני ישראל)

THE REBELLIOUS SON (21.18-21)

“If a man has a stubborn and rebellious son who will not obey his father or his mother and they rebuke him and he still does not obey, then his father and his mother shall seize him and bring him to the Elders of his city, to the gate of that place. They will say to the Elders of his city, ‘this is my stubborn and rebellious son who does not obey us; he is a glutton and a drunkard.’ Then all the men of his town will stone him to death. You will purge the evil from your midst and all Israel will hear and fear.”8

7 To some the capital offenses in 13.2-10 and 17.2-7 may seem to have idolatry at their root. However, the concern in all of these texts is that the offender’s idolatry will lead other individuals or the nation as a whole to follow in their idolatrous footsteps. The curses prescribed if the nation commits idolatry are intense. Deut 4.26-29; 5.9; 6.15; 29.16-29 all indicate the nation will be severely punished for idolatry; among these punishments are removal from the land, removal of YHVH’s blessing, lack of acquittal, complete destruction, among others. All this will come upon the nation as a whole (the 2nd person plural is consistently used throughout these curses), not only the individual. It is imperative, then, for the nation to protect itself from idolatrous individuals, because their idolatry can bring destruction upon all the people. The concern of idolatry throughout Deuteronomy, the capital punishments not withstanding, is primarily concerned with keeping the people as a whole from destruction and curses. Therefore, the capital crimes in 13.2-10 and 17.2-7 are simultaneously crimes against YHVH and crimes against the nation, with the scale tipping towards the latter. 8 All translations are my own based on BHS-4.

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The case of the juvenile delinquent betrays our modern sensibilities of what kind of

actions and behaviors deserve severe punishment, especially among children or teenagers.9

David Marcus has contrasted modern laws concerning juvenile delinquents with laws from the

ANE.10 His exploration is informative not only in regard to the divide between ancient and

modern sensibilities, but also the divide between other ANE sources and Deuteronomy 21.

Deuteronomy 2111 is in stark contrast to parallel ANE sources concerned with rebellious

children. In other cases, such as the Code of Hammurabi, punishment is restricted to humiliation,

chastisement, or mutilation, but never death.12 This demonstrates Israelite culture’s deep concern

with patriarchal honor.

The Ancient Mediterranean societal phenomenon of honor-shame is at the heart of this

law.13 The two participles סורר and מורה form a hendiadys and indicate that the son is both

“repeatedly insubordinate”14 and that his repetitive behaviors are not capable of being modified

by his parents.15 He has strayed from the societal norm of patriarchal honor and demonstrated

himself to be a continued threat to the honor of his entire family. The repeat offender cannot

simply be chastised, humiliated, or even banished for his transgression; he is to be stoned to

death. Deuteronomy is unique in this regard, and the inference to be drawn is that the text is

9 The text does not give us any direct indication of the age of the son (בן) of the parents. We may presume that the hypothetical boy is an adolescent based on that he is still under his parents’ supervision and is old enough to have developed a drinking habit (סבא). 10 David Marcus, “Juvenile Delinquency in the Bible and the Ancient Near East,” JANESCU 13 (1981): 31-52. 11 Along with the parallel law in Exodus 21.17. 12 Marcus, “Juvenile Delinquency,” 35. 13 For a full social-scientific interpretation of this law with regards to honor-shame see Anselm C. Hagedorn, “Guarding the Parent’s Honour—Deuteronomy 21.18-21” JSOT 88 (2000): 101-121. 14 Jeffrey H. Tigay, Deuteronomy (JPS Torah Commentary; Philadelphia: Jewish Publication Society, 1996), 196. 15 Joseph Fleishman, “Legal Innovation in Deuteronomy XXI 18-20,” VT 53 (2003): 312-13.

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attempting to create a kind of group cohesion that is not reflected in texts outside of the HB.

Stoning one’s child represents that the solidity of the people takes precedence even over familial

bonds.

The punishment of stoning reflects the nature of the offense. If the transgression were not

as serious, as in other cultures, both modern and antique, then the punishment would not be

capital. That this is not the case for Deuteronomy indicates two societal values that Deuteronomy

aims to protect. The first is that patriarchal and familial honor are highly valued. In a modern

context it would be absurd to physically punish a child for stubborn and disobedient behavior, let

alone stone them. Even in other ANE contexts the threat of death would likely seem outrageous

for these kinds of behaviors. This indicates “filial insubordination is a grave offense because

respect and obedience towards parents is regarded as the cornerstone of all order and

authority.”16

The second value Deuteronomy is protecting in this law, and in each of the capital

crimes, is the importance of group identity. The family was the basic unit of Israelite culture and

the relationship to the rest of society was modeled on familial bonds. If individuals could not act

properly in relation to their parents, they certainly would not be able to act properly in relation to

the people as a whole. This is the reason the son is brought to the Elders and stoned at the city

gate. His offense is not only a direct affront to his parents honor, but it also has the potential to

inspire others to think and act in ways that do not hold the group in highest esteem. Thus, the son

is publicly executed at the city gate to demonstrate that actions and mindsets detrimental to the

community will not be tolerated.

16 Tigay, Deuteronomy, 196.

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THE DELINQUENT DAUGHTER (22.20-21)

“If the charge is true and they do not find (evidence) of the girl’s virginity, then the men of the city will take the girl out to the doorway of her father’s house and will stone her to death because she did a disgraceful thing in Israel by being a harlot in the house of her father. You will purge the evil from your midst.”

Determining the offense of the delinquent daughter in 22.13-21 is an exegetical problem

that has received much scholarly attention.17 A number of proposals have been made: that the

daughter offended her parents, that the daughter offended her new husband, that the parents

offended her new husband, or that the whole law functions as a metaphor for Israelite fidelity to

YHVH. In what follows, I will review scholarship on the law and attempt to demonstrate that

whatever option the interpreter choses, the nature of the offense is the same: negative action

against another member of the community has been taken. This is what is at the heart of the law

and its resulting punishment.

The preceding law found in 22.13-19 necessarily introduces the account of the delinquent

daughter in vv. 20-21. It states that if a man takes a wife and determines, post-matrimony, that he

hates her and subsequently slanders her by making claims to her lack of virginity, the parents of

the girl must produce the evidence of her pre-marital chastity. Upon this production of evidence

the man must pay a fee to the virgin’s father for slandering both his good name and his parental

abilities. The case of the delinquent daughter follows, raising a number of issues: Why is the

daughter stoned in the doorway of her father’s house? Who is the daughter’s offense against?

What is meant by the statement ‘she played the harlot in her father’s house’?

Sexual fidelity does not begin at the time of marriage or even betrothal in Israelite

culture. Rather, this fidelity is a lifelong pursuit. Virginity is held in high esteem; it is not simply

17 For a good overview of two majority approaches see Fleishman, “The Deliquent Daughter and Legal Innovation” and Meir Malul, “What is the Nature of the Crime of the Delinquent Daughter in Deuteronomy 22:13-21? A Rejoinder to J. Fleishman’s Suggestion,” VT 59 (2009): 446-459.

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a commodity, but the sexual norm. To be married to a woman who is not a virgin is a shameful

act. Therefore, it is of paramount importance for a woman to guard her virginity zealously.18 This

would seem to indicate that the offense of the delinquent daughter is in her lack of zeal for her

own virginity. One conclusion that scholars then draw is that the delinquent daughter knowingly

deceived her father, whose responsibility it was to “limit the sexual freedom of [his] girl and to

guard her virginity.”19 By knowingly deceiving her father, the daughter has directly affronted his

patriarchal honor and “damage[d] seriously the community within which [she] lives.”20 In being

found to have had sexual relations before her marriage, and even her betrothal, the girl has

brought shame upon her father who was ignorant of her infidelity.

An opposite conclusion that might be drawn is that the girl’s offense is primarily against

her new husband. If virginity is the expected pre-marriage sexual norm, lack of virginity should

not be hidden. The daughter in attempting “to dupe her husband into believing that he was the

first man to put his marks in her and thus to achieve, by fraud, a social status and standing which

law and custom denied from her is defined by law as an act of 21”.נבלה The daughter hoped to

gain the honored, and expected, social status of virgin-wife. She “challenge[d] the time-honored

customs of her community and turne[d] the laws of society upside-down.”22 The crime is then

18 Accordingly, the betrothed virgin who is raped and does not call out for help in Deut. 22.23-24 is to be put to death. A number of interpreters suggest the death penalty is called for because the virgin, by not calling for help, is consenting to the rape. (See Tigay, Deuteronomy, 207) However this reasoning does not make sense of the contrastive stipulation in v. 25 that states if the rape happens in a field, where the virgin presumably cannot be heard, only the rapist is to be punished, because the virgin could have called for help but not been heard. The issue in vv.23-24 is the virgin’s silence, an indication she was not zealously concerned for her virginity. 19 Fleishman, “The Delinquent Daughter,” 196. 20 Fleishman, “The Delinquent Daughter,” 198. 21 Malul, “Nature of the Crime,” 456. 22 Malul, “The nature of the Crime,” 456.

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punishable not only as an act of commission on the part of the daughter against her husband, but

also as a crime against the community as a whole.

The third and final option, and the conclusion preferred here, is that both the daughter’s

father and the daughter herself were guilty of offending another member of the community. This

approach takes seriously the notion that, “the woman’s family may have known and acted

deceitfully in marrying her off, when her value as a bride would have been reduced.”23 It has

been established that it was the responsibility of the patriarch to keep his daughter from sexual

promiscuity. A failure to do so, knowledgably or not, was an offense against the man who took

the daughter under the presumption of her virginity. This interpretation makes most sense of the

place of the stoning: the doorway of the father’s house. As Tigay states, “executing the daughter

at this location also expresses communal disapproval of the father who failed to raise a chaste

daughter.”24 The public stoning, which was to be done by “the men of her city” would not only

purge the evil by taking the daughter’s life but also by heaping shame onto the irresponsible

father who was unable to preserve his daughter’s prized virginity.

The punishment comes off as overly harsh to the modern mind. Only in understanding

the sacral nature of virginity in ancient Israel can we understand what an offense this was to the

honor of both the daughter’s family, and further, to the daughter’s husband. It is not absolutely

essential to determine who was transgressed against in this law because it is abundantly clear that,

whether it was the patriarch or the woman’s husband, another member of the community was

offended. The deep offense against another member of Israel deserves the supreme punishment:

death by stoning. The stoning demonstrates that this individual does not deserve to be a part of

the community; the evil is purged.

23 Ronald E. Clements, NIB 2:455. 24 Tigay, Deuteronomy, 206.

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THE KIDNAPPER (24.7)

“If a man is found stealing a person from his brotherhood, one from the sons of Israel, binding him and selling him, then that thief shall die. You will purge the evil from your midst.”

Many interpreters are perplexed by the variation between this law as it exists in Deut 24.7

and its source text, which is Ex 21.16.25 Tigay states, “this is a puzzling variation, since

Deuteronomy devotes more attention to the welfare of resident aliens than any other biblical

book.”26 It is problematic for some that the law in Deuteronomy, which is almost certainly a

revision of Exod 21.16, would specify the nationality of the victim when it is public scholarly

wisdom that Deuteronomy is highly concerned with the resident alien and other marginalized

individuals. However, this specification is not at all vexing when we recognize that

Deuteronomy is just as much concerned with group cohesion and identity as it is with the well

being of the resident alien.

The author of the law in Deuteronomy goes to lengths to ensure that the reader

understands whom exactly this crime should not be committed against. The offended party in the

Exodus law could not be any more generalized: איש (a man). In Deuteronomy, however, there are

four nouns explicitly naming who should not be kidnapped. First, the generic איש of Exodus is

changed to נפש (a person, soul). Rather than being simply “a man,” there is an added personal

thrust applied to the kidnapper’s victim, he or she is a life/soul.27 Next Deuteronomy adds that

this נפש is מאחיו (from his brothers), giving the law an extra polemical thrust. This kidnapper has

25 “One who steals a man, if he is found in his possession or if he sells him, shall surely be put to death.” 26 Tigay, Deuteronomy, 224. 27 It may be argued that this merely reflects the uses of a synonymous lexeme. This is betrayed by the fact that נפש is used only 35 times in Deut, whereas איש is used nearly three times more at 90. Further many linguistic scholars are now convinced that there is no such thing as a pure synonym.

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the audacity to take someone from his own brotherhood. Finally, if the law had not already

driven home the nationality of the offended party, it is done so by the words מבני ישראל (from the

sons of Israel). There can be no doubt that the law is stressing the fact that kidnapping a member

of the Israelite community is a grave offense.

This variation, far from being puzzling, makes perfect sense in light of the offenses that

typically call for capital punishment in Deuteronomy. In fact, it would seem somewhat odd if the

crime was not explicitly against a member of the community. If that were the case, this law

would be the only example of a capital crime that is applied to actions perpetuated against

individuals outside of Israel. It is fitting that this is the last capital crime found in the law book. It

effectively closes out the capital offenses in Deuteronomy by being explicit in regard to whom

perpetrators should not act against: נפש מאחיו מבני ישראל (a soul of one of the brotherhood, from

the children of Israel).

CONCLUSION

In this paper I have attempted to argue that actions against fellow Israelites are of the

highest concern in the law book of Deuteronomy. Based on the premise that the underlying

values of any culture or society are often disclosed in the laws that are most heavily punished I

attempted to demonstrate that the capital crimes in Deuteronomy were first and foremost

concerned with actions taken against the community. The rebellious son in chapter 21 has deeply

offended his parents’ honor, the delinquent daughter and her parents have slighted her new

husband, and the kidnapper is put to death not because he has stolen, but because he has stolen

one of his brothers, one of the children of Israel. The exegesis of these three laws briefly

represents the underlying values found in Deuteronomy’s capital crimes. This demonstrates that

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one of the law code’s primary intentions is to establish concern for the community on the

individual and group level.

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BIBLIOGRAPHY

Barrett, Rob. Disloyalty and Destruction: Religion and Politics in Deuteronomy and the Modern World. New York: T&T Clark, 2009.

Clements, Ronald E. “The Book of Deuteronomy: Introduction, Commentary, and Reflections.”

Pages 271–583 in The Book of Numbers, The Book of Deuteronomy, Introduction to Narrative Literature, The Book of Joshua, The Book of Judges, The Book of Ruth, The First and Second Books of Samuel. Vol. 6 of The New Interpreter’s Bible. Edited by Leander E. Keck. Nashville: Abingdon, 1998.

Edenburg, Cynthia. “Ideology and Social Context of the Deuteronomic Women’s Sex Laws

(Deuteronomy 22:13-29).” Journal of Biblical Literature 128 (2009): 43-60. Fleishman, Joseph. “The Delinquent Daughter and Legal Innovation in Deuteronomy xxii 20-

21.” Vetus Testamentum 58 (2008): 191-210. ---------“Legal Innovation in Deuteronomy XXI 18-20.” Vetus Testamentum 53 (2003): 311-27. Greenberg, Moshe. “Some Postulates of Biblical Criminal Law.” Pages 283-300 in The Song of

Power and the Power of Song: Essays on the Book of Deuteronomy. Edited by Duane L. Christensen. Winona Lake, IN: Eisenbrauns, 2009.

Hagedorn, Anselm C. “Guarding the Parent’s Honour—Deuteronomy 21.18-21.” Journal for

the Study of the Old Testament 88 (2000): 101-21. Knoppers, Gary N. and Kenneth A. Ristau. ‘Introduction’ to Community Identity in Judean

Historiography. Edited by Gary N. Knoppers and Kenneth A. Ristau. Winona Lake, IN: Eisenbrauns, 2009.

Malul, Meir. “What is the Nature of the Crime of the Delinquent Daughter in Deuteronomy

22:13-21? A Rejoinder to J. Fleishman’s Suggestion,” Vetus Testamentum 59 (2009): 446-59.

Marcus, David. “Juvenile Delinquency in The Bible and the Ancient Near East.” Journal of

Ancient Near Eastern Society of Columbia University 13 (1981): 31-52. McBride Jr., S. Dean. “Polity of the Covenant People: The Book of Deuteronomy.” Pages 62-77

in The Song of Power and the Power of Song: Essays on the Book of Deuteronomy. Edited by Duane L. Christensen. Winona Lake, IN: Eisenbrauns, 2009.

Pakkala, Juha. Intolerant Monolatry in the Deuteronomistic History. Publications of the Finnish

Exegetical Society 76. Göttingen: The Finnish Society in Hellsinki, Vandenhoeck and Rupre, 1999.

Sparks, Kenton L. Ethnicity and Identity in Ancient Israel. Winona Lake, IN: Eisenbrauns, 1998.

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Stulman, Louis. “Encroachment in Deuteronomy: An Analysis of the Social World of the D

Code.” Journal of Biblical Literature 109 (1990): 613-32. Tigay, Jeffrey H. Deuteronomy. JPS Torah Commentary. Philadelphia: Jewish Publication

Society, 1996. Weinfeld, Moshe. “Deuteronomy: The Present State of Inquiry.” Pages 21-35 in The Song of

Power and the Power of Song: Essays on the Book of Deuteronomy. Edited by Duane L. Christensen. Winona Lake, IN: Eisenbrauns, 2009.

Word Count: 3,958 (Not Including Bibliography or Title Page)