Introduction
Why the need for Biblical justice?
America is fast losing its sense of justice. In some jurisdictions, rapists routinely get out on parole only to rape again. The average time that a murderer spends in prison before being released is 8.5 years. In Florida, a forty-eight year old man has served only a few months in prison despite being convicted of raping a thirteen-year-old girl with muscular dystrophy. Ninety percent of all criminal cases do not go to court because the criminal pleads guilty to a lesser charge. John DiIulio, Jr. (professor at Princeton University) says,
The justice system is a revolving door for convicted predatory street criminals, the vast majority of whom enter the system by plea-bargaining, exit it before serving even half of their time in confinement and make a cruel joke out of the terms of their ‘community-based supervision.’ …Within three years of sentencing, while still on probation, nearly half of all probationers are placed behind bars for a new crime or abscond.1
On the other hand, prison itself would be considered grossly unbiblical. Prisons have become places in which criminals mentor each other on their criminal skills. They are also places of unnecessary suffering.2 Clearly our system of corrections is not working. By what standard should it be fixed?
What is the legitimate punishment for a crime? Should it be left to the discretion of the state? What would then stop a tyrannical state from once again imposing the death penalty for petty theft, as was repeatedly practiced in England?3 On the other hand, what would hinder the state from simply fining a murderer $100? Would that not be a gross injustice? Without an objective standard of justice from God, how can we discern justice? Indeed, unless there is a law by which the law of the state can be judged, how can any state be accused of tyranny? It is the contention of this book that the Bible alone can define what punishments are tyrannical, overly permissive, or just.
Was Saudi Arabia unjust in beheading men for smuggling drugs? The Bible would say, yes. Is it unjust to cut off the hand of a thief as is prescribed in the Koran?4 The Bible would say, yes. In America people are placed into jail for years for thefts that could have been paid off by means of Biblical restitution in much less time. With the biblical penalty, the criminal is rehabilitated and the victim is compensated.
It is easy to see how the Biblical penalties designed to be restorative would be a wonderful alternative to present penalties, but some people have questioned whether the Biblical death penalty should be implemented. It is acknowledged that the penalty for murder is not restorative. It is the contention of this book that the (maximum) penalty of death for every other crime was designed to restore sinners to repentance. It is to the issue of the death penalty that this exploratory research book is devoted. A later book will (Lord willing) outline the benefits and wisdom of the other penalties listed in the Bible.
Scripture indicates that murder defiles a land and brings God’s judgment, unless the murderer is executed. This is not merely an academic question. This is a question of great significance. Numbers 35:29-34 says,
Now these things shall be a statute of judgment to you throughout your generations in all your dwellings. Whoever kills a person, the murderer shall be put to death on the testimony of witnesses; but one witness is not sufficient testimony against a person for the death penalty. Moreover you shall take no ransom for the life of a murderer who is guilty of death, but he shall surely be put to death. And you shall take no ransom for him who has fled to his city of refuge, that he may return to dwell in the land before the death of the priest. So you shall not pollute the land where you are; for blood defiles the land, and no atonement can be made for the land, for the blood that is shed on it, except by the blood of him who shed it. Therefore do not defile the land which you inhabit, in the midst of which I dwell; for I the LORD dwell among the children of Israel.
If we want the Lord’s blessing on our nation, we must take the issue of the death penalty seriously. Though the Bible provides some flexibility on the maximum and minimum penalties for other crimes, Numbers 35 insists that there can be no ransom for a murderer: “he shall surely be put to death.” If we ignore the parameters that the Bible gives for civil penalties there will be no objective standard that can protect any of us from tyranny. The Bible alone must determine the parameters for the punishment of crimes. Without an objective and infallible standard we are subject to the whims of a tyrannical state.
The Misuse Of Biblical Civil Law
It is possible to be tyrannical and sub-Christian even if we agree that Biblical criminal law is just. 1 Timothy 1 says about the Old Testament civil law that “the law is good if one uses it lawfully” (v. 8). That statement implies that the civil law would not be good if it was used unlawfully. Indeed, the principles of this book can be used in wrong ways if they are not interpreted within the whole context of the Bible.
Citizens may not use these laws for hateful or vengeful activity
One unlawful way of using Biblical civil law would be to allow it to inform the attitudes and actions of citizens against criminals. Jesus was rebuking this error in Matthew 5:38-42. Just because the state may use a lex talionis principle against a criminal does not give citizens the right to do so. The Pharisees justified revenge based on the verse “an eye for an eye and a tooth for a tooth,” but Jesus rightly pointed out that private citizens may never use that principle to resist evil (v. 39). Instead, we are called to go the extra mile (vv. 39-42) and to love our enemies (vv. 43-48). Jesus was interpreting the Old Testament as it was intended to be understood, and if the Pharisees had read the Old Testament civil laws in context, they would have realized that. For example, Leviticus 18 commands the state to punish crime, but Leviticus 19 commands the average citizen, “You shall not take vengeance, nor bear a grudge against the children of your people, but you shall love your neighbor as yourself” (Lev. 19:18). Vengeance is the mandate of the state jurisdiction and love is the mandate of the individual, family, and church jurisdictions. This is the same contrast that we see between Romans 12 and Romans 13. Romans 12 commands us to “repay no one evil for evil” (v. 17), but to “live peaceably with all men” (v. 18), to feed our enemies (v. 20) and to overcome evil with good deeds (v. 21). In contrast, the state is commanded to “execute wrath on him who practices evil” (v. 4). So the first unlawful use of the civil law is to let it inform our private attitudes and actions towards criminals. We must not hate criminals or act with bitterness, vengeance, or wrath against them.
The state may not use these laws in a non-libertarian way
It is also possible for the state to be unlawful in its use of Biblical law. If these civil powers were trusted to big government, enormous abuse could happen. Instead, Biblical civil law should be interpreted within the philosophy of Biblical libertarianism. R. J. Rushdoony once said,
Few things are more commonly misunderstood than the nature and meaning of theocracy. It is commonly assumed to be a dictatorial rule by self-appointed men who claim to rule for God. In reality, theocracy in Biblical law is the closest thing to a radical libertarianism that can be had.5
To get a perspective of how libertarian Biblical civics really is, consider the following points. First, the Bible did not allow for an income tax, property tax, inheritance tax, sales tax, or business tax. The very lack of massive tax revenues that are necessary to run a big state automatically argues for a libertarian approach to government.6 Second, Biblical law made no provision for a standing army, police, or prisons. Everything about Biblical civics argues against a police state and argues for a Biblical libertarian state. God intended crimes to be punishable only as citizen-victims brought charges7 and provided two or three witness who were willing to bear the cost of false testimony.8 Biblical civics was antithetical to police surveillance, entrapment, sting operations, interrogation of suspects or other forms of coerced testimony. For an ungodly, intrusive state to use civil law as a club would be an unlawful use of the law because it ignores the limits that God has placed upon all civil governmental jurisdiction. The third thing that necessitates a libertarian approach to civics is that the Bible gives a very limited set of sins that are crimes. For example, though polygamy is a sin, it is not treated as a crime in Scripture. I define a crime as a sin that has a Biblical civil penalty explicitly connected to it. With this definition, the state has a very limited role indeed. Fourth, as is argued in this book, with the exception of God’s mandate of death for the crime of murder, the Bible’s intent for all civil penalties was restorative in nature, and capital punishment was rarely applied to any crime other than murder.
The state must not see civil law as inflexible
A third way that the state might use the civil law unlawfully is to misinterpret and over-apply those laws inflexibly. In this book I critique the theonomic interpretation of the ambiguous Hebrew phrase מוֹת יוּמַת (möt yumat). Theonomists have tended to treat it as a mandate for the death penalty. I argue that this is impossible, since God Himself authorized lesser penalties (and even no penalties) of people who had committed such crimes. While I agree with theonomists that it is impossible to be faithful to the Bible and ignore the justness of every penalty that God gave (Heb. 2:2; etc.), I strongly believe that (with the exception of the penalty for murder) God built flexibility into the law in order to make it restorative.
Failing to see civil law as restorative
The fourth way we can misuse the civil law is to fail to use it restoratively. As will be argued in the book, God’s civic laws drove people to the Gospel and to restoration. In a subsequent book I hope to show how restitution and other penalties actually gave a criminal a chance to make something of himself and to learn good habits for success. The same is true of the death penalty for all crimes except for murder. God’s purpose was to turn a criminal from his wicked way that he might live (Ezek. 18:23,32). This book will wrestle with the restorative implications of the civil law.
We must not rob victims of their rights
The last way that we can use the civil law unlawfully is to rob victims of their rights. If victims have no say-so on forgiveness, restitution, or other alternatives to the death penalty, then a major reason for the law (to protect life and property) is misaligned.9 Just as one example, if the state put Hosea’s wife to death for her adultery despite Hosea’s desires to forgive her, then state interests would have trumped Hosea’s individual interests. By giving Hosea victim’s rights to have a say in what happened, God was providing certain libertarian ideas.
When these five caveats (love your neighbour, a libertarian state, flexibility in penology, the restorative nature of the law, and victim’s rights) are kept in mind, it makes sense that capital punishment was rarely imposed in the Old Testament. Thus the capital crime of murder stands out from the others as unusual, though all the penalties are treated as being God-given and just.
The position of this book may ruffle many feathers and garner many objections. It will be controversial with those who do not believe in Biblical civics, and it will also be controversial with traditionalists who believe that the Old Testament mandated the death penalty for all “capital” crimes. In the spirit of love and learning we present the following responses to common objections, always striving to have Scripture be our standard. If we have erred we welcome your correction.