According to rabbinic sources, adultery was punished by death, not divorce; see Mish. Sanh. 7.3, 9; B. Sanh. 52b, 55b, 66b. If, in the beginning, God did not permit divorce for adultery, and if in the end, the Mishnah (completed in the early 3rd cent. AD) did not permit divorce for adultery, what proof do we have that it was permitted between these points in time? And if it was permitted, it was done so without any sanction from the written or the oral Torahs.
If we look at the list of capital punishments for sexual sins in Leviticus 20 we see that the method of death is not specified in some of them, and in particular, not in the case of adultery. God leaves the method blank with the statement they “shall surely be put to death.” Only in one case does He specify the method, in Leviticus 20:14. The culprit is to be burnt to death. So whatever method is used it is not uppermost in God’s thoughts, but the end result is. He wants all of these sexual perverts exterminated.
The Pharisees say that Moses commanded that such be stoned. Maybe this was taken from Leviticus 20:4 by extension. However, in Ezekiel 23 Yahweh’s two wives, Aholah and Aholibah, became adulteresses, and He ordered the assembly to stone them and then cut them with their swords (Ezek 23:47). This would support the Pharisees’ demand that she be stoned.
Jesus approved of God’s punishment of stoning for adultery when the woman taken in adultery was brought before Him. He did not offer divorce as a way out of the situation, because it would have been against the Law. The challenge Jesus threw out to them was, “Yes, she should be stoned, but let the executioner be a righteous community of Law-abiding citizens.” So the Law was good in itself, and the punishment (death) just. If the Pharisees had changed the punishment for adultery from death to divorce, then they were guilty of changing God’s Law. It was not an option to commute the death penalty to a permanent divorce punishment.
Philo supported the death penalty for adultery, A betrothed “wife” is regarded by Philo as a wife, because she is his wife in all but deed. Betrothal is the equivalent of marriage, he says, and therefore if she willingly or unwillingly has intercourse with another man it “is a form of adultery” (III.58, 72). “And therefore the law ordains that both should be stoned to death.” Here Philo would have approved of the demand to stone the woman taken in adultery in John 8.
Roger Aus noted, “It is also recorded that at least one daughter of a priest (still in her father’s house) was burnt to death before 66 CE because of committing adultery (in Jerusalem).” And then adds, “If the daughter of a priest was caught while engaging in such behavior, it is very probable that those further down the social scale of priests/ Levites/Israelites did so also, and certainly more frequently.”3
This does not sound to me like a one-off burning for adultery, or mob-rule, but a regular practice. I suspect that the Romans could not care less what the Jews did, provided they did not riot.
If Roger Aus is correct, then I would tend to the view that the woman taken in adultery might well have been stoned to death had they not brought her to Jesus. That is what saved her, in this instance. It then means that the question put to Jesus was not just a technicality, but a real, dangerous situation to negotiate. How then does this square with John 18:31?
I suspect that John 18:31 should be looked at from a political standpoint, and not from a religious one.4 If the Roman authorities had allowed the Sanhedrin to handle all matters connected with the Torah Law, as Pilate permits them to do so, then only political, capital offences were denied them, such as the imprisonment of Barabbas, and other revolutionary leaders.
John 18:30-31 reads, “they answered and said to him, ‘If he were not an evil doer, we had not delivered him to you.’ Pilate, therefore, said to them, ‘Take you him — you — and according to your law judge him;’ the Jews, therefore, said to him, ‘It is not lawful to us to put any one to death [as an evil doer].’” The charge was that Jesus was “an evil doer”—a civil matter. So no religious charge of blasphemy was brought against Jesus.
The religious authorities wanted Jesus dead, but they wanted the Romans to take the blame, hence the charge was shifted from “blasphemy” to “an evil doer” and Jesus’ claim to be ‘king of the Jews’ helped in that direction. So maybe Rodger Aus’ observation can stand alongside the Jewish authorities’ refusal to meddle in political matters that rightly belonged to the Roman authorities.
Pilate clearly acknowledged the right of the religious leaders to control the people in religious matters when he said, “Take him and judge him according to your law.” But Jesus was a hot potato, and they did not want His blood on their hands if at all possible, hence they steered away from their own judgment of blasphemy, and put the focus on Jesus’ claim to be King of the Jews. This clearly put Him in political conflict with Rome. It was a clever ploy, and it worked.
So there is no need to dismiss Aus’ evidence. It can be reconciled with John 18:31 if the latter is seen as a capital punishment for usurping the ‘kingship’ of Rome. In that sense the Jews were right to say that they had no authority to put a man to death for saying he was ‘king of the Jews’. That was a political offence. John 18:31 should not be assumed to mean that all capital punishments were taken away from them in the light of Aus’ evidence that capital punishment was common for adultery (and presumably other religious offences such as blasphemy).
Under Roman occupation, following on from the Hellenisation of Jewish culture, the majority usually bend with the wind, and opt for a quiet life. But there will always be those who remain faithful to what they know to be God’s will. God’s will had been practiced under Jewish autonomy. That some would want to see the full Law kept through hard times is evident in the Zealots’ exploits. So what they did was not illegal in terms of obeying God rather than man (https://lmf12.files.wordpress.com/2012/11/critique_david_instone-brewer.pdf, pages 6-7).
The Jews were prepared to inflict the death penalty on the woman taken in adultery (Jn 8:5) in accordance with the law of Moses (Lev 20:10), therefore we must reject the interpretation that Deut 24:1-3 allowed divorce for adultery. It is assumed that under Roman rule capital punishment was abolished (see D. W. Amran, ‘Adultery,’ The Jewish Encyclopedia [New York, 1925], I.217). This is incorrect, because Pilate gave the Sanhedrin the necessary permission to execute Jesus “according to your law” (Jn 18:31), but the Jews wanted the Romans to do it for them, so the charges were changed to put Jesus in conflict with Roman law (Lk 23:2, 5, 14; Jn 18:30b), but he was found not guilty on those charges (Lk 23:14-15, 22, 23; cf. Mt 27:18, 23). With the dispersal of the Jews after the Second Jewish War in AD 132-35, and lacking nation status to implement the requirements of the Torah, rabbinic law developed to make divorce of an adulterous wife mandatory, see Mishnah Sotah 5:1, Sotah 18b, 27b, Ketubot 9a. This was just one of a number of adjustments that the Jews had to make after AD 135, when God permanently took away their power to enforce His Law (https://lmf12.files.wordpress.com/2013/12/garrett-critique_current.pdf, p. 15, n. 13).
“The excuse that the Jews in Jesus’ day were not able to carry out the death penalty because this was taken away from them by the Romans is not borne out by the facts. First, the Mishnah (completed in the early 3rd cent.) does not permit divorce for adultery, but agrees with the Torah that the death penalty was still in force. Second, evidence from rabbinic literature shows that the death penalty was carried out while under Roman rule” (https://lmf12.files.wordpress.com/2012/11/critique_david_instone-brewer.pdf, p. 67).