Romans
13 and Genesis 9 are the lynchpin verses to many pro-capital punishment
arguments in American evangelical Christianity. Indeed, these are the key passages
to John and Paul Feinberg’s case for the death penalty in their book, Ethics for a Brave New World.[1] These verses are important
for their argument because they believe any Old Testament laws that are not
ruled out in the New Testament are binding on Christians today—this is what
they call a moderate discontinuity
position.[2] It turns out they believe
a lot of the OT has been ruled out, either implicitly or explicitly, by the NT.
For example, they believe that the OT ceremonial laws, as well as the civil laws,
are all nullified by the law of Christ and are no longer operative today (which
gets them out of some difficult capital crimes such as adultery and dishonoring
one’s parents).[3]
They also argue that, because several of the other Genesis 9 commands—such as
not eating raw meat—are not explicitly upheld in the NT, they are no longer
operative today.[4]
However, and here is the lynchpin, they
believe that Romans 13, part of the law of Christ, does demand capital
punishment, thus pulling Genesis 9 out of the rubble of inoperative OT laws.
Thus, it is essential for them to prove that the teachings of Jesus and Paul support
capital punishment so that they can resurrect Genesis 9.
In
what follows I will show that one should reject the interpretation of Genesis 9
as prescribing capital punishment because it is very likely that Jesus rejected
it. However, even if one ceded that Genesis 9 should be read as prescriptive, I
will show that Romans 13 still fails to reinforce the death penalty, thus
unraveling the argument that the Feinbergs have set up in favor of capital
punishment. But before all of this, it is necessary to give a brief sketch of
first-century views within Judaism on capital punishment.
Historical
Context: Appealing to Judaism does not help the Pro-Capital Punishment Position
Within
Judaism, in the two centuries before and after Jesus, there was much discussion
among the rabbis concerning capital punishment.[5] Most rabbis at the time
were absolutely committed to the scriptures—calling it fundamentalism might be
understating it. Thus, they took seriously the twenty-some commands to
carry-out the death penalty in the Mosaic Law. [6] Yet,
most of the rabbis in the Mishnah clearly set out to do one thing—make these
commands impossible to execute.[7] The Mishnah summarizes the
teaching of authoritative rabbis as teaching that execution of one man in seven
years is “ruinous”.[8]
It continues, "Rabbi Eliezar ben Azariah says: Or one in even seventy
years. Rabbi Tarfon and Rabbi Akiba say:
Had we been in the Sanhedrin none would ever have been put to death. Rabbi
Simeon ben Gamaliel says: [for the Sanhedrin to put someone to death] would
have multiplied the shedders of blood in Israel.”[9] The Encyclopedia Judaica affirms that “the whole tendency of
the rabbis was toward the complete abolition of the death penalty.”[10]
This
is important because when the Feinbergs make the assumption that, because Jesus
and Paul were Jews, they must have accepted capital punishment, they are
overlooking essential historical context. Rather, given the relevant statements
from Paul and Jesus that will be discussed below, it would seem that these Jews
clearly continue the tradition of frowning upon capital punishment and seeking
ways to make it obsolete. For Jesus, this was easy because he could
authoritatively reject capital punishment. Paul, and the rest of the early
church, simply had to follow his lead.
Genesis
9: Jesus’ Authoritative Interpretation Matters Most
It
is possible that Genesis 9 was read prescriptively by various rabbis throughout
history. But it is better to read the OT through the lens of Jesus. If Jesus
did not read it as prescriptive, then followers of Jesus ought not either. For
the Feinbergs, if Genesis 9 is not interpreted as a prescriptive command, then
they have no substance behind their interpretation of Romans 13.
As
commentator Donald Hagner points out, Jesus alludes to Genesis 9 with the
“chiastically formed proverbial saying” in Matthew 26:52, “For all who
take the sword will perish by the sword.”[11] Likewise, Claus Westermann,
in his commentary on Genesis, makes this same connection to Jesus’ words—he
views Jesus’ proverb as deriving from this saying in Genesis 9.[12] The Feinbergs reject the
argument that this is a predictive proverb even though the Hebrew allows for
this possibility.[13] While the Feinbergs find the
context to suggest it is a command, they admit that other commentators believe
the evidence is not sufficient to make it foundational in the case for capital
punishment.[14]
Regardless of how the Feinbergs, or any other commentator for that matter, read
the Hebrew text, what seems to be more important is that Jesus’ use of this
proverb gives a glimpse of how he would interpret this passage. That is, Jesus
uses this chiastic proverb as a reason to reject the use of violence—telling
his disciple to put his sword away. As the Feinbergs acknowledge, Jesus has the
authority to reinterpret OT laws with the new Law of Christ (hence, the reason
they can reject all the other uncomfortable instances of capital crimes). If
there is a connection between the proverb Jesus quotes in Matthew 26 and the
Genesis 9 passage, then it strongly suggests that Jesus interprets this passage
as a prediction that taking life is a vicious cycle. He is then taking the OT
passage and authoritatively reinterpreting it to better fulfill God’s will—something
that is not wholly unknown for Jesus. Frankly, this would align more clearly
with the other words spoken by Jesus.
For
example, Jesus takes the “eye for eye, life for life” teaching in Leviticus 24:17-22,
which was itself a limitation on punishment, and limits it even further.[15] In Matthew 5, Jesus
quotes this passage and instructs that one should not resist the evil doer. As
Stassen puts it, “If ‘life for life’ is understood as a limiting of revenge by
killing only the killer and not also the killer's family, then Jesus is here
taking a further leap in the same direction, limiting it all the way down to
zero. If ‘life for life’ is understood as justifying or requiring the death
penalty, then Jesus directly opposes it.”[16] The Feinbergs reject this
interpretation for two main reasons. First, they say that if Jesus wanted to
rule out capital punishment, he would have done so when he addressed murder in
vv. 21-22.[17]
There are some obvious problems with this logic. For one, it is an argument from
silence and it could be flipped to make just as strong of argument, perhaps
stronger, against the Feinbergs. That is, according to this logic, one could
just as easily argue that because Jesus did not explicitly uphold the death
penalty in vv. 21-22, he is likely against it. While I reject his logic, I find
this latter formulation much more compelling. After all, if Jesus did have
upholding capital punishment in mind when he said this, then he has actually
expanded the harshness of the law—now one ought to be put to death for being
angry. It is unlikely that Jesus was undoing the “limitations” that Mosaic Law
had put on the harsh ancient cultures, reinterpreting the laws to go further
than “life for life” or “eye for an eye”. The Feinbergs, at this point, have
not offered a serious objection to the interpretation of Matthew 5 as a
rejection of capital punishment.
The
second reason the Feinbergs reject that Jesus is limiting the “life for life”
principle is because it would logically lead to a break down in the social
order. That is, they believe if the teaching to “turn the other cheek” or “love
one’s enemies” were applied to criminal justice, the logical outcome would be
to rule out all punishment for crimes. Instead, they argue this passage should only
apply to Christians in their interpersonal relationships—the commands are not universal
rules and should not be adopted into societal penal codes.[18] If one were to read this
as the Feinbergs suggest, not only does one have to accept that there are moral
imperatives that only apply to Christians, but they also must conclude that
Christians should not seek justice in their interpersonal relationships. However,
this is not necessary because the Feinbergs fail to understand the heart of
what Jesus is teaching here. Jesus is not instructing that people simply let
evil run over them, he is offering a powerful alternative to resisting evil
that does not use evil itself.[19] Walter Wink gives an
excellent, and now famous, account of Jesus’ teaching here: “Jesus is not
telling us to submit to evil, but to refuse to oppose it on its own terms….
Jesus is not advocating nonviolence merely as a technique for outwitting the
enemy, but as a just means of opposing the enemy in a way that holds open the
possibility of the enemy’s becoming just also…. He articulates…a way evil can
be opposed without it being mirrored…and the enemy being neutralized without
being destroyed.”[20] As is clear later in
Matthew 5 (v.45), Jesus’ logic is that God himself loves both the just and the
unjust—he gives his gracious gift of life to both—and those who wish to be
perfect must seek to imitate the Father. Under this reading, the Feinbergs have
no need to worry about Jesus’ teachings causing the collapse of social order.
Rather, Jesus is offering a better social order. The Kingdom that Jesus is
announcing is one where evil and injustice are confronted with radical,
transforming love. Turn the other cheek does not teach a society to passively
watch evil happen; turn the other cheek instructs societies to confront evil
with transforming, constructive, and creative efforts. It teaches a redemptive
justice system that values even the lives of the unjust, not a destructive one
that seeks to answer bloodshed with bloodshed. In the end, a justice system
that heeds the words of Christ is far from a chaotic break down in order as the
Feinbergs suggest; it is God’s Kingdom come, His will being done on earth as it
is in heaven.[21]
After
considering Jesus’ teachings, against the backdrop of the first-century Jewish traditions,
there is overwhelming evidence that Jesus himself does not view Genesis 9 as a
mandate for capital punishment. Rather, Jesus is seen as continuing the Jewish
tradition of moving away from the death penalty, but going even further—as he
does—and speaking authoritatively on these scriptures. He teaches that “life
for life” is not the way God will restore His creation; he predicts that
bloodshed will mean more bloodshed. Instead, it is God’s will to redeem and
transform the broken people all around. Jesus teaches that the Kingdom of God,
which is the proper order of society, finds creative, loving ways to confront
evil and restore those who violate justice because their life is as valuable as
anybody else’s.
Romans
13: A Pharisee of Pharisees Pursues Peace
The Apostle Paul, in Romans 12:14-21, explicitly upholds
these words of Jesus: “Bless those who persecute you; bless
and do not curse them…. Repay no one evil for evil…. Beloved, never avenge
yourselves, but leave it to the wrath of God, for it is
written, ‘Vengeance is mine, I will repay, says the Lord.’ To the
contrary, ‘if your enemy is hungry, feed him; if he is thirsty, give him
something to drink; for by so doing you will heap burning coals on his head.’ Do
not be overcome by evil, but overcome evil with good.” These are the words that
precede the Feinbergs’ lynchpin passage in Romans 13. Of course, they would reject
the relevance of these words on the same terms as they did the Sermon on the
Mount—that these are words for interpersonal relationships among Christians,
not rules for an ordered society. Though there is not space to fully unpack it,
there is a serious problem here with the way the Feinbergs conceive of what is
normative for Christians and what is normative for society in general. While
there is certainly a specific role for a secular government, it cannot be the
case that once this social institution began to look more like the Kingdom of
God, all hell would break loose. The way Jesus has ordered his people on earth
is exactly how all of society should be ordered—and governments of all shapes
and sizes will do well to model themselves after God’s Kingdom. However, it is
not the goal here to answer this problem. Rather, it will suffice to show that
the Apostle Paul had no intention of upholding the death penalty, or violence
at all for that matter, in the Feinberg’s lynchpin passage, Romans 13:1-7.
Again, historical context is essential in understanding
the nature of this passage in Romans. At first glance, this passage seems to be
out of place, so much so that some have even gone so far as to suggest that it
was added by a later writer. While this suggestion is unacceptable to those who
hold to the inerrancy of scripture, it certainly highlights the significance of
offering a careful interpretation of this passage. One must be fully aware of
the oddity of Paul upholding the authority of a government that has unjustly
executed Jesus, which oppressed his people for generations and is already
beginning to wreak havoc on the Church. Indeed, reading these words with the
Emperor Nero in mind must certainly cause one to pause and ask if Paul has lost
his mind for a moment. But there is harmony to Paul’s message—he is making a
specific point that is consistent with verses that lead up to Romans 13.
Paul
is in fact addressing a specific historical problem that the church at Rome is
facing—Nero’s taxes.[22] Those living in the city
had to pay two types of taxes—direct and indirect. Nero had promised to cancel
all indirect taxes, but of course did not follow through with his promise. The
Christians, who had already given their allegiance to the true King, were
tempted to use their commitment to Jesus as an excuse to join the
trouble-makers that were resisting paying taxes.[23] Stassen points out that an
insurrection against taxes had already occurred and gotten many Christians
kicked out of Rome.[24] They cannot represent the
gospel if they are getting tossed out of the cities for unnecessary rebellions.
In fact, Paul is trying to give his words in Romans 12 a specific
application—do not repay these evil taxes with a rebellion, live at peace so as
far as it is possible. This is further reinforced when one considers that the Greek
word for “sword” in Romans 13:4 names the weapon carried by the police who
accompanied tax collectors.[25] As Stassen puts it, “Paul
was urging Christians to make peace, pay Nero's new tax, and not rebel. He was
not arguing for capital punishment. He was arguing against violence.”[26]
The Feinbergs, instead of making a coherent argument,
insist that commentators “uniformly agree” that the sword, here mentioned, represents
death and thus must support the death penalty.[27] In the research for this
paper, it immediately became clear that the Feinberg’s claim to “uniform
agreement” deceitfully overstates the case. And despite making this claim
twice, they offer no footnotes with even a few commentators for the reader to
follow up with. Undoubtedly, there are commentators who take the position that
the Feinbergs espouse, but there are also several theologians and scholars who
reject it. For example, the position argued above, that focuses the passage on
tax collection, was upheld by over thirty members of the Society of Christian
Ethics, twelve of which, such as John Howard Yoder, were presidents of the
society.[28]
Even more significantly, N.T. Wright not only rejects the biblical support of
capital punishment, but he also points out that this was the view of the early
Church: “Almost all the early Christian Fathers were opposed to the death
penalty, even though it was of course standard practice across the ancient
world. As far as they were concerned, their stance went along with the
traditional ancient Jewish and Christian belief in life as a gift from God.”[29]
Thus,
the Feinberg’s assumptions about Paul—that he was a Jew and therefore obviously
applied Genesis 9 to his understanding of justice, and that his use of “sword”
implied the death penalty—sounds shallow against the evidence. Instead, when a
fair reading of Romans 13 is given, it in no way compels one to accept that
Paul, a first-century Jew, intended to uphold the Roman practice of execution.
Rather, he was trying to offer a radical, peaceful, and redemptive alternative
to the Roman Empire—an alternative that Jesus called the Kingdom of God.
[1] John
and Paul Feinberg, Ethics for a Brave New
World, 2nd ed. (Wheaton: Crossway, 2010), 254.
[2] Ibid.,
44-45.
[3] Ibid.,
257
[4] Ibid.,
254. John Howard Yoder’s criticism that pro-capital punishment arguments use an
inconsistent hermeneutic appears to be upheld at this point. The Feinbergs have
clearly articulated their discontinuity position as one that requires an explicit
or implicit negation of OT laws.
However, in dealing with Genesis 9 they choose to argue that, since these other
commands are not reinforced in the
NT, they are no longer operative. This is precisely the opposite of the
position they take on page 44. See John C. Nugent, ed., The End of Sacrifice: The Capital Punishment Writings of John Howard
Yoder (Harrisonburg: Herald Press, 2011), 33.
[5] Lawrence
Marshall and Scotty McLennan, Religious
Perspectives on Capital Punishment, podcast audio, Religious Perspectives,
Stanford, iTunes University, October 24, 2012.
[6]
Ibid.
[7] Glen
Stassen, “Biblical Teaching on Capital Punishment,” Review and Expositor, 93 (1996): 486-487.
[8]
Ibid.
[9] Herbert
Danby, trans., The Mishnah (London: Oxford University Press, 1933), 403;
Makkoth, 1.10. As quoted in Stassen.
[10] “Capital
Punishment,” Encyclopedia Judaica
(2007), http://www.encyclopedia.com/article-1G2-2587503929/capital-punishment.html
(accessed February 23, 2013).
[11] Donald Hagner, “Matthew 14-28,” World Biblical Commentary, vol. 33b, (Columbia: Thomas Nelson,
1995), 789.
[12]
Claus Westermann, Genesis 1-11: A
Continental Commentary (Minneapolis: Fortress Press, 1994), 466-469. Glen
Stassen uses the commentaries by Hagner and Westermann to make the argument
that this passage is a predictive proverb. I am not interested in making that
argument here directly. Rather, I am trying to show that the Feinbergs’
argument ignores the possibility that Jesus might have authoritatively reinterpreted
this Genesis 9 passage. See David P. Gushee, Richard Land, and Glen Stassen,
“How Biblical is it to Support the Death Penalty and be Pro-Life?” Christianity Today, February 2012, 43.
[13] Feinberg,
258.
[14] Ibid.,
253.
[15]
Stassen, 488.
[16]
Ibid.
[17] Feinberg,
254.
[18] Ibid.,
255.
[19]
See Romans 12:14-21. This passage is
almost certainly Paul’s reiteration of Jesus’ teaching.
[20] Walter
Wink, The Powers that Be: Theology for a
New Millennium (New York: Galilee Doubleday, 1998), 100-111.
[21]
Space does not permit a response to the Feinbergs treatment of John 8. However,
this passage also serves to illustrate the significance of transformative, not destructive,
justice. The Feinbergs raise similar complaints about a break down in social
order, but these are equally misled. Jesus is consistently offering a more
merciful and redemptive version of justice than that of the OT. It is not
permissive of evil, but seeks to confront it and transform it with love and a
profound respect for the dignity of human life—even for the unjust, the evil,
or one’s enemies.
[22] N.T.
Wright, Paul for Everyone, Romans: Part
Two (Louisville: Westminster John Knox Press, 2004) 89.
[23] Ibid.
[24]
Stassen, 491.
[25]
Stassen, 491.
[26] Ibid.
[27] Feinberg,
259.
[28] Stassen,
493-494.
[29] N.T.
Wright, “American Christians and the Death Penalty,” Washington Post, September 15, 2011, On Faith section, Online
edition, http://www.washingtonpost.com/blogs/on-faith/post/american-christians-and-the-death-penalty/2011/09/15/gIQAb8yaUK_blog.html
(accessed February 21, 2013).
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