Penalties of the Mosaic Law

Penalties Of The Mosaic Law.

In this the controlling principle was the simple and natural, and therefore in early times general, one of recompense or revenge (Wachsmuth, Hellen. Altersth. 2:118), the lex talionis (see Rothmaier, Jus Talionis, Jen. 1700; comp. Polyb. v. 9, 6), which was directed even against beasts (Ex 21:23 sq., 28; Le 24:17 sq.; De 19:16 sq.; comp. Ge 9:5; 1Ki 21:19), and the kindred notion of compensation for private trespasses (Ex 21:36; Ex 22:1,3; 2Sa 12:6). The design of deterring men from wrong by terror was held in view (De 17:13; De 19:20; De 21:21); but this should not (with Michaelis, Mos. Recht, v. 6 sq.; and Kleinschrod, Peinl. Recht, 2:138) be pressed too far, although it cannot be (with Welker, Letzte Griinde, p. 292) wholly denied. This principle of revenge is found also in the ancient legislation of the Greeks, Romans, and Egyptians (on the last, see esp. Diod. Sic. 1:75). The particular penalties among the Israelites consisted in death, stripes, imprisonment, and in the payment of sums of money, which were either fixed by the law (De 22:19,29), or left to the determination of the injured party (Ex 21:22), or took the place of certain personal penalties (ver. 29 sq.), for the redemption of which in this way provision had been made. The penalty of banishment does not appear in the Mosaic law; for the phrase "cut off from among his people" cannot be thus understood, SEE EXECUTION; nor is such a punishment at all in the spirit of the theocratic law. The accidental killing of a man led to temporary exile, but within a free city of the Holy Land itself. All these penalties bear an unmistakable air of mildness, in view of the crimes against which they are denounced and the character of the people, and especially when compared with those inflicted by other ancient nations (e.g. the Egyptians, Diod. Sic. 1:77). Nor did they bring infamy upon the criminal, for punishments involving social and civil degradation were unknown to the Mosaic law. They were also free from torture; nor was this admitted even in the case of an inquisition until the time of the Herods (Josephus, Ant. 16:8, 4; 10, 3; 17:4, 1). Josephus, indeed (Apion, 2:30), speaks of the Mosaic penalties as more severe than those inflicted among other nations. But this is merely comparative. The freedom of the Mosaic laws from torture will appear the more to its honor if we remember that the most civilized nations have only begun to refrain from it, and to punish the worst criminals with simple death, in very recent time (Abegg, Lehrb. d. Straffrechstwissensch. p. 187). The pardoning power, with which the administration of justice is associated in modern states, accords with this character of punishment; but prescription, in the criminal law (praescriptio criminis), corresponds merely to the ancient right of blood-revenge. Of a gradation of penalties, increasing with each repetition of the offense, the Mosaic law knows nothing (comp. Abegg, Op. cit. p. 230), but it appears in the criminal jurisprudence of the later Jews (Mishna, Sanhedr. 9:5). The expiation by children of the offenses of their parents is nowhere ordered in the law, although it was usual among other ancient nations (Cicero, Ad Brnut. 15). On the contrary, De 24:16 directly opposes this practice (comp. 2Ki 14:6; 2Ch 25:4). But in Jos 7:24 some understand that the whole family were sharers in the guilt. (But SEE ACHAN. Keil's remarks on the passage are childish.) It may be seen from 2Ki 9:26 that lawless tvranny sometimes punished children with the father; bunt the children in the case of Naboth were heirs, and Ahab's main design could not be fulfilled while they remained alive (1 Kings 21). 'The punishment of whole nations at the will of an individual (see Es 3:6) is a work of Oriental despotism, of which examples have been witnessed even in modern times (Arvieux, 1:391 sq.). The only exception was the case of the children of insolvent debtors, who were made bondmen by hard-hearted creditors (2Ki 4:1; Mt 18:25). The threat in Ex 20:5 has nothing to do with civil jurisprudence (see Wegner's Interpretatio of the passage, Viteb. 1790).

There remains for examination the vexed question, which has an important bearing on the determination of the date of the crucifixion, whether the criminal trials and executions of the Jewish authorities could take place on the Sabbath and high feast-days. There can be no doubt, in the nature of the case, that offenders could be arrested on these days, and that it was done appears from Joh 7:32; Ac 12:3. But it cannot be shown from the Mishna (Sanhedr. 88. 1) that sessions of the Sanhedrim were held on such days. SEE PASSOVER. They certainly were not then usual (Mishna, Join Tob, v. 2); and even on the preceding day they were avoided, if possible, lest in any way they should be held over into the Sabbath. It appears also from Ac 12:4 that condemnation, where possible, was postponed until after the festivals. But that executions were held during the feast cannot be doubted (Mishna, Sanhedr. 11:4; comp. De 17:12-13). Yet we cannot suppose that the Sabbath, or a feast-day which was regarded as a Sabbath, could be chosen for such a purpose (see esp. Bleek, Beitr. zur Evangelienkritik, p. 140 sq.). SEE PUNISHMENT.