by Mark Snoeberger

A while back Bob Jones University made the news by apologizing for statements made a generation ago suggesting that homosexuals should be subjected, like they were during the Mosaic economy, to capital punishment. This mea culpa was a welcome one insofar as the offending statement was insensitive, vindictive, even hateful. But among the tweets and chatter that ensued, it was surprising to see how many bloggers (critics and defenders of BJU alike) made no apparent differentiation between the words spoken in 1980 and the words written in the 15th century BC. Moses is apparently guilty of hate speech, too!

This is a troubling sentiment, I think, and one that seriously erodes Old Testament credibility and authority. Surely as inerrantists we must conclude that Moses was right to write what he did! It is in view of this fact that I ask today, What should we do with Moses and his copious assignment of capital punishment for seemingly trivial crimes (or in some cases, perhaps, for no crime at all)? Shall we defend him? Blush for him? Distance ourselves from him by denouncing the Law as inherently evil and, too our great relief, dead and gone?

It is true that the Mosaic Law has been set aside, and its temporal sanctions suspended in Christ. And with the dissolution of the Jewish kingdom, there is no longer a theocratic representative living on earth with the authority to enforce God’s expectations in the civil sphere. Still, we must surely also say, “The Law was holy, and its commandment holy, righteous and good” (Rom 7:12ff). Further, we must affirm that the God who established that Law is immutably pure in his ethic. So how should we deal today with actions that Moses regarded as capital offenses?

As I see it, there are four categories of capital offense detailed in the Law of Moses, and each requires its own nuanced response. Note the following:

  • Offenses violating the sanctity of human life. Moses requires that “first-degree” murder be punished by the forfeiture of life (Exod 21:12, 14; also Lev 24:17, 21), with special emphasis on those who sacrificed their children to the gods (Lev 20:1–5). Negligence resulting in death could also be a capital crime (Exod 21:28–29), especially in the case of unborn children (Exod 21:22–25), though this was not true in every case (Exod 21:13). Perjury in capital cases was also a capital offense (Deut 19:16–19), ostensibly because it might result in the unjust loss of life. The fact that God persistently commands human governments to guard human life with capital force, not only in the Mosaic economy but beyond (Gen 9:6), seems to leave no room for debate—God expects collective mankind, being ever in his image, to exercise due process and execute murderers.

In modern society some oppose capital punishment uniformly, even in the case of murder, but this is not a universal sentiment. Indeed, of all the categories of capital punishment found in the Mosaic Law, this category receives the smallest amount of cultural resistance.

  • Offenses savaging the humanity, purity, and dignity of “innocents.” Included in this category are offenses such as unequivocal, non-consenting, sexual assault (Deut 22:25–27) and kidnaping for the purpose of human trafficking (Exod 21:16). Since the command to execute criminals of this type is restricted to the Mosaic economy, I do not find capital punishment a mandate in the modern era; still, the fact that God found such crimes ethically worthy of death in one era seems to suggest that modern governments that conclude similarly are well within their rights to do so.

As with the previous category, many non-Christians are of a similar mind in this matter (after all, it was not Christians that made Taken a blockbuster movie).

  • Offenses of a religious nature. As a theocratic state, there was no separation of church/state, God/Caesar, or saeculum/sacrum in the Mosaic economy. As a result, the selfsame Israelite system prosecuted both civil and religious This is why, during this window of history, God required capital punishment for the crimes of sorcery (Exod 22:18; Lev 20:27; Deut 13:5), blasphemy (Lev 24:14, 16, 23), false prophecy (Deut 18:20), and egregious Sabbath violations (Exod 31:14; 35:2).

I have already tipped my hand in revealing that I believe this category of capital punishment to be restricted to the unique circumstances of the Jewish theocracy. By contrast, NT revelation sharply distinguishes the jurisdiction of church and state: the state has no jurisdiction in the church and as such should not prosecute religious crimes; and the church, while free to exclude someone from its membership, has no power to take away his life. And to the degree that religious organizations (Christian, Muslim, or otherwise) transgress (or have transgressed) this distinction, I believe they are wrong.

  • Offenses against divinely instituted civil institutions. These offenses represent the most broadly disputed category of capital crimes in the OT, and have three distinct sub-categories: (a) crimes against divinely prescribed authority within the institution of the family (Exod 21:15, 17; Lev 20:9), (b) persistent refusal to submit to divinely instituted civil authorities in otherwise non-capital crimes (Deut 17:12), and (c) a range of offenses against the divine institution of marriage, including adultery (Lev 20:10; Deut 22:22), bestiality (Exod 22:19; Lev 20:15­–16), homosexuality (Lev 20:13), special instances of fornication (Deut 22:23–24), special instances of incest (Lev 20:11–21), special instances of prostitution (Lev 21:9), and lying about one’s virginity (Deut 22:13–21).

It is these “crimes” that earn the greatest attention among Bible-haters. None of these offenses seem capitally egregious, it is argued, and many of them offend no one at all—they’re mutually consensual! How can these be capital crimes? The answer is simple: Our Creator God found these activities to be of such an egregious nature as to threaten the viability of his creative design for humanity. And as is his prerogative, he assigned them capital import. And since he is the Creator and we are creatures, we really have no recourse but to acknowledge his right to do so.

Now, I would hasten to add that the capital response to such activities was apparently not immediate in every case. Mercy was often granted (see Lev 18:29 within its context), with capital force apparently reserved for repeated offenses coupled with recalcitrance or violence. Further, as was the case with the offenses in category 2 (above), the mandate to punish such activities capitally ceases after the Mosaic economy. Still, it seems hazardous to say that what God declared to be capitally odious and deleterious to the human race in 1400 BC must now be regarded as ethically benign, much less respectable.

There is no doubt that the Mosaic Law offers challenges to the contemporary church that are exceedingly complex, and the above should not be regarded as the final word on the topic. However, whatever answers emerge to the tensions at hand, we surely cannot give in to the contemporary opinion that Moses (and by extension, Yahweh) was once a moral monster perpetrating a primitive and reckless law code from which our enlightened modern society has escaped. Perhaps its is fair to say (using contemporary legal language) that Christ has ushered in an age in which “mandatory minimum sentencing” has been withdrawn with respect to many of these offenses perpetrated against God. However, since God is absolutely immutable in his ethical character, moral culpability for sins against God and his created order has by no means relaxed with the coming of Christ.