Hebrew Death Penalty for Adultery: Moses to Christ by Leslie McFall (Part 2)

According to some the Romans took away the traditional right of the Sanhedrin to apply the death penalty for adultery, among other capital offences, so that this left the Jews unable, and disabled, to enforce the death penalty for any sin that God required the death penalty for.234 [Note 234: John Ignatius Döllinger, The First Age of Christianity and the Church, translated from the German by Henry Nutcombe Oxenham (1st ed; London: Allen, 1866), see Appendix II. “The Right of the Sanhedrim over Life and Death” (pp. 304-09). It is thought by many that Jn 18:31 implies that the Roman government had deprived the Sanhedrin of the power of life and death. Josephus says that the Sanhedrin could not hold a court without the Roman Procurator’s consent (Jos. Arch. xx. 9, 1). The Talmud notes that forty years before the destruction of Jerusalem (in AD 70), Israel lost the power of life and death. Against this, it would be strange if Pilate, in telling the Jews to judge Christ themselves, publicly insulted the rulers, if they knew that they could not do what he told them to do. Döllinger points to the Romans allowing subjected people to live by their own laws (p. 305), and Josephus makes the high priest, Ananus, and Titus himself declare that the Romans had confirmed and secured to the Jews the free use of their laws; even after war broke out Titus offered to the Jews autonomy, if they would submit, which, they, therefore, clearly had not lost (Jos. Arch. xvi. 9, 4; Cf. 13, 1. Bell. Jud. vi. 6, 2; 3,5). Döllinger claims that all Jewish writing of that date speak of ‘autonomy’ as the thing to strive for and retain.] This was to fulfil Jesus’ own prophecy of the manner of His death, which was decreed to be by crucifixion. To be deprived of the ability to obey God’s commands was surely an indictment of the ruling class—the high priesthood—by God Himself.

Jesus was well aware that God had not granted the Jews the option to divorce their wives for adultery/fornication, so that sexual offences by females (married and unmarried) could never be commuted to divorce without direct authority from God, and no such right was ever granted to the Jews by God. So, to commute the death penalty to divorce was unlawful in the eyes of God. Consequently when Jesus referred to the upper limits of the causes the Jews were traditionally using to divorce their wives, from the time they came out of Egypt to the day Jesus spoke, these limits embraced every possible cause, from the most trivial cause, going right up the most heinous crime of fornication (which embraced adultery), but not including that offence, which had to be punished by death, Jesus’ statement in effect covered every conceivable cause that a Jew might nominate to be a ‘cause’ for divorce, and He condemned all divorces based on any cause that they traditionally used to get rid of their wives.

Up until the time that the Romans took away the Jews’ right to live according to the laws of God, they were under a strict obligation not to divorce for fornication. That particular sin, and the judgment God imposed on it, was not up for discussion. Divorce for fornication was never an option. So, when Jesus said, ‘not over fornication,’ He used it as the limit up to which the Jews had been traditionally able to get a divorce for non-fornication causes. And it was the current practice, without explicitly breaking any law of God (for divorce per se was not outlawed by God), that Jesus now condemned and abolished it in His new kingdom, the Church.

Jesus, in effect was saying, that any man who got a divorce for any cause up to the most heinous of all deserving causes, namely, fornication, which was to be punished by death, did so unlawfully. So the practice of the Hebrews/Jews from the time they multiplied in Egypt until Jesus’ day was tolerated by God as an evil manifestation of unregenerated men. God did not forcibly prevent the evil of divorce from being part and parcel of the evil condition that Adam’s sin had brought into being in the lives of all men toward their wives.

So Jesus’ use of ‘not over fornication’ (or, ‘not over fornication’) meant that He had in mind all the other causes that the Jews had been traditionally employing to get a divorce right up to the crime of fornication, and He condemned all these other causes. It was as comprehensive a way of referring to all causes as He could encompass in the minimum of words. It was lawful for the Jews to apply the death penalty for all capital offences, including all sins of fornication and adultery (Deut 22:22; Lev 20:10). It was not lawful for them to divorce their wives for capital offences, such as fornication, and the Pharisees who questioned Jesus knew the law. So when they asked Jesus, “Is it lawful . . . ?” Jesus replied in the language of the lawyer, “Anyone who divorces his wife for a noncapital offence and marries another commits adultery.” The phrase ‘for a non-capital offence’ is the same thing as ‘not over fornication.’ Jesus used the legal negative to point to whatever is left over.

The Jews knew that it was unlawful to get a divorce on the grounds of fornication, because God had specifically laid down the death penalty for that particular ‘cause’ (Deut 22:22; Lev 20:10). So, while Jesus used a negative statement, ‘not over fornication,’ He was, in effect, using it in a positive manner to define the upper limit of what constituted a ‘cause’ for divorce (which was the way the question had been framed by the Pharisees). He defined the upper limit as well as the lower limit, when He used the phrase ‘not over fornication,’ and it was within these boundaries that the Jews had traditionally obtained their grounds to divorce their wives.

In a head-to-head confrontation if you can corner your opponent to end up on the wrong side of the law, then he is broken. Jesus knew that no Jewish lawyer could change the law of God over the capital punishment for the sin of fornication/adultery. Everyone knew that the lawful penalty was death, not divorce, and no lawyer had ever tried to rewrite the law. So both Jesus and the Pharisees were on the right side of the law in not permitting divorce for fornication. To the question, ‘Is it lawful to divorce for fornication?’ the Jews would be forced to reply, ‘It is unlawful to divorce for fornication,’ but under their breath they would mutter, ‘If we can’t divorce her for fornication, we will get rid of her using our traditional ‘ervat dãbãr excuse.’ So the metaphorical use of ‘ervat dãbãr in Deuteronomy 24:1 could not refer to fornication (so rabbi Shammai was wrong). It could only refer to a non-capital offence in the description that God gives of the evil man who divorces his wife in Deuteronomy 24:1-4.

The revolution that Jesus brought about was that He declared that all divorces obtained for non-capital offences (such as through an ‘ervat dãbãr or hatred) were now a sin against His Father’s new dispensation of Grace into which Jew and non-Jew were invited to enter by faith, and by faith to appropriate the life and work of His Son, the Lord Jesus Christ, for the ‘righteousness of God’ is obtained only through the Lord Jesus Christ (https://lmf12.files.wordpress.com/2014/08/divorce_aug_2014.pdf, pages 176-178).

The Romans did not interfere with the right of the Sanhedrin to impose the death penalty if that was the law of their religion, but they took away the Sanhedrin’s right to inflict the death penalty for civil matters. Note the difference. The Jews brought a civil charge against Jesus, “If he were not an evil doer, we had not delivered him to you” (Jn 18:30).330 They dropped the religious blasphemy charge under which they could have put Jesus to death, because they did not want to have His blood on their hands. They schemed to get the Romans to kill Jesus, hence they were technically and legally right to say, “It is not lawful [under Roman law] for us to put any man to death for the civil offence of ‘being an evil doer’” (Jn 18:31).

The fact that it was prophesied that no bone of Jesus would be broken in His death (cf. Jn 18:32) meant that if the Sanhedrin had convicted Jesus of blasphemy, as they did, it would have meant that the prophecy would not have been fulfilled. “Then the high priest rent his clothes, saying, He has spoken blasphemy; what further need have we of witnesses? behold, now you have heard his blasphemy” (Matt. 26:65). With this, compare John 10:33: “The Jews answered him, saying, For a good work we do not stone you, but for blasphemy; and because that you, being a man, make yourself God.” The fact that the prophecy was fulfilled meant that God was in total control of the legal procedures, and even had the Chief Priest prophesy that Jesus would die on behalf of the nation.

God planned that the Romans would be in charge of His people when He sent His Son into the world to be its Saviour. His death had to be by crucifixion and not by stoning. Therefore He could not be killed by a religious judge but by a civil judge, and on a civil charge and not on a religious charge. Since the Romans were in control of all civil punishments, the Sanhedrin had to accuse Jesus of a civil offense to get a civil death sentence passed on Jesus, not realising that they were playing into the hand of God, who had predetermined the manner of His Son’s death via a Roman crucifixion.

We now have the full background to Caiaphas’s statement that, “It is not lawful for us to put anyone to death” (Jn 18:31). They had brought a civil charge against Jesus, not a religious charge, so they were correct that Moses did not give the Levitical priesthood authority to deal with civil matters. They were not the national police force. Their duties were purely to do with the service of the Temple and insuring that that was not brought into disrepute. So they were correct in saying that they did not have authority to handle civil, capital punishment matters.

Josephus is a solid witness that the death penalty existed in his day for fornication and adultery, under Roman rule; and Paul persecuted the Christians “unto death” while under Roman authority (Acts 22:4; cf. 22:20; 8:1). Note Paul’s statement, “and many of the saints did I shut up in prison having received authority from the chief priests; and when they were put to death, I gave my voice against them” (Acts 26:31). Here we see that persecution came from the chief priests who had authority to put Christians to death under Roman rule. So much for the misinformation put out by the supporters of the betrothal interpretation that the Jews could not exercise the death penalty in the case of adultery and fornication. It is further proof of the power of the Sanhedrin to impose capital punishment that the Mishnah upheld the death penalty for adultery, see Sanhedrin 7:3,9; B. Sanh. 52b, 55b, and 66b. Nowhere in the Mishnah, nor the Talmuds, is divorce ever substituted for the death penalty in the case of adultery or fornication.331 But you will not find this statement in works supporting the betrothal interpretation. We also have John 8 and Roger Aus’s evidence to throw into the mix (Ibid., 286-287).

We noted that Paul was given official letters by the full Sanhedrin in Jerusalem to suppress Christianity even ‘unto death.’ How did Paul achieve this? He tells us in Acts 26:11, “And I punished them oft in every synagogue, and compelled them to blaspheme; and being exceedingly mad against them, I persecuted them even unto strange cities.” It was blasphemy to call Jesus the Son of God, because that would be to make Himself equal to God, as the high priest pointed out at Jesus’ trial (Mt 26:65; cf. Jn 10:33). No Christian would deny this, so it was easy for Paul to trap any Christian by asking him or her this one question.

Now the punishment for blasphemy was death by stoning; so this was how Paul engineered their deaths. When he brought back his Jewish Christian prisoners, the Sanhedrin had no option but to stone all those whom Paul had compelled to commit blasphemy. Here we have the definitive proof that the death penalty for religious crimes had not been taken away by the Roman authorities.

Betrothal supporters claim that “Being under Roman rule, the Jews had to have the consent of the Roman rulers and could not act on their own to put any man to death.” I would deny this and point out the Scripture that states: “I [Paul] verily thought with myself, that I ought to do many things contrary to the name of Jesus of Nazareth, which thing I also did in Jerusalem: and many of the saints I shut up in prison, having received authority from the chief priests, and when they were put to death I gave my voice against them” (Acts 26:9-10). When Pilate gave the Sanhedrin the opportunity to put Jesus to death [for blasphemy] they refused to accept the offer. But the very offer shows that the Roman authorities recognised that the Sanhedrin did have the power from God to put men to death for religious blasphemy. If they did not have this power, then only Pilate had this power, as betrothal supporters want to believe.

There is no precedent that I am aware of where a Roman governor could delegate his power to a third party to put someone to death. The fact that Pilate could tell the Sanhedrin to use their (not his) power to put Jesus to death “according to your [death penalty] law,” shows that the Jews always had this power.

Paul knew that the Sanhedrin had the power to discipline God’s people legitimately, both from God and the Romans, and that he was the cause of putting many Christians to death.

It is a keynote statement of the supporters of the betrothal solution to say that because the Romans took away the Jewish right to inflict capital punishment on any man (cf. Jn 18:31) that this justified the rabbis bringing in divorce in place of the prescribed death penalty, and Jesus just meekly fell in behind the rabbis, like an ignorant Jew, and took His lead from them.

Rather than portraying Jesus as at the mercy of compromising changes to God’s Law (brought about by the rabbis?), supporters of the betrothal interpretation should stand back and view the bigger picture and ask, Why did God take away the nation’s independent status in the first place?

We have evidence as early as the fifteenth-century BC to the fifth-century BC from Elephantine in Egypt that divorce was an everyday occurrence and that divorce has a polluting effect on the land in which it occurs, and “causes the land to sin” (Deut 24:4). Judea was certainly a polluted land by the time the Romans took control of it. If the Romans did prevent the Jews from implementing the Mosaic law on adulterers and fornicators (which, we have shown, is not likely), then God was shutting them up to having to live with their adulterous wives, because He provided no alternative punishment for this particular sin. It was unlawful to substitute divorce for the death penalty.

The one question that supporters of the betrothal interpretation cannot answer is: Why did Jesus change the death penalty into a divorce penalty in the case of the unfaithful espoused wife, but not in the case of the unfaithful married wife? If the rabbis had not already altered the death penalty into a divorce penalty due to their statement in John 18:31 (that it was not lawful, under Roman rule, for them to put a man to death), then Jesus, on His own authority must have altered the Law in favour of letting the unfaithful espoused bride get off scot free, but would not extend the same judgment and justice to the unfaithful married wife. Yet both committed the same sin, and both were defiled in God’s eyes. If Jesus did not extend divorce to the unfaithful married woman, then the death penalty was still in operation in her case, but not in the case of the unfaithful, betrothed ‘wife,’ if the supporters of the betrothal interpretation are correct.

It is not relevant to argue that one woman was in a ‘one flesh’ relationship with a man, while the other was not. Under the Law, both ‘wives’ are subject to the death penalty if they were unfaithful. One is in a one-flesh union, but the other is not. But God dispenses justice in demanding death for both wives. Hence the ‘one-flesh’ status is irrelevant. We are back to God being consistent and Jesus being inconsistent in how they punish the same sin, but only because a wrong assumption has been imposed on the text of Matthew 19:9.

The assumption is that a married woman cannot commit fornication or prostitution; that fornication is the sin of single, unmarried persons, male and female. This assumption might have been sufficient in the days of Daniel Whitby (1638–1726)(see 6.6.8.), when the data to the contrary was not available, but it is surprising to find this ignorance of the facts still paraded as a linguistic fact by modern supporters today.

We pointed out earlier that the betrothal interpretation had its origin in a corrupt Greek text dated to 1516 in the case of Matthew 19:9. No critical edition of the Greek New Testament has accepted Erasmus’s tampered text, yet supporters of the betrothal interpretation continue to read an exception clause in Matthew 19:9 as if these were the words of Jesus! They are the words of Erasmus! But most supporters of the betrothal interpretation are living in the past, and living on outdated research.

The fact that Jesus’ reputation as an infallible teacher is brought into question by this interpretation is hidden from them. When it is pointed out to them that Jesus altered God’s Law to allow divorce for some sexual sins but not for others, and in this He was no different from Hillel or Shammai, it is only then that they throw away this incompetent explanation, and begin looking around for another, more biblical solution, which would harmonise with all of Jesus’ statements on divorce and remarriage, and explain the practice of the Early Church in never allowing remarriage to follow a separation by an unbeliever (Ibid., 290-291).

It is speculated that divorce replaced the death penalty during the Roman occupation of Judah, and this has been used to justify the rabbinic departure from the punishments laid down in the law. Statements in the Talmuds (Sanh. 41a; Yer. Sanh. i. 18a, vii. 24b) indicate that the death penalty was removed from the Jews 40 years before the destruction of the Temple in AD 70. Jesus died in AD 29, which was 41 years before the Temple was destroyed. Could it be that the misuse of the death penalty by the Sanhedrin in Jesus’ day resulted in the death penalty being removed from the Sanhedrin for religious crimes? Under the cloak of killing Jesus for a religious crime of blasphemy the Sanhedrin could kill off political enemies. Under a similar cloak, if a man suspected his wife of adultery but he did not have the necessary eye-witnesses to convict her (as in Jn 8), he could divorce her anyway for some other petty offence. So divorce for adultery or fornication could be got through the backdoor. It was preferable to get rid of a wife this way for suspected adultery, rather than the mother of his children being publicly stoned for adultery, which might have put the legitimacy of their births in doubt. . . .

The citizens’ determination to kill the woman taken in adultery cannot be passed off as mob rule, as if it was unlawful in God’s sight. Jesus pointed out that the ‘scribes and Pharisees’ sat in Moses’s seat and He instructed the people to obey them. John tells us that it was the same ‘scribes and Pharisees’ who were only carrying out the death penalty that Moses commanded for adultery.

God strongly approved of citizen Phinehas, pumped up with zeal for His God, taking it into his hands to kill a fornicating Israelite (Zimri) and his Midianite prostitute (Num 25:8). God blessed this righteous citizen for taking it into his own hands to kill this law-breaker (Num 25:11). But in the case of the woman taken in adultery in John 8, the motive to execute her was different. The woman was being deliberately used as bait in a carefully crafted set up to accuse Jesus of taking the life of a citizen.

Even if she was executed by Jesus in strict accordance with the law of God (on the analogy of Phinehas’s righteous action), Jesus knew that the scribes and Pharisees would use it to hand Him over to the Roman authorities, because He was viewed by the Sanhedrin as a worse law-breaker, and someone who was more dangerous than an adulterous woman, because He had a growing popularity among the people, whom the scribes and Pharisees described as ignorant and gullible. So Jesus presented a real threat to the religious establishment, and had to be removed at all costs.

Because Jesus was fully aware of the trap set to kill Him, He exploited the situation to convict the executioners of their own law-breaking history. They recognised the hypocrisy of lawbreakers condemning law-breakers, and drew back from carrying out the decision of the scribes and Pharisees who set up the trap.

The implication of Jesus’ action is that He took the execution of law-breakers out of the hands of citizens, and put it back into the hands of those who sat on Moses’s chair (Mt 23:2). Jesus upheld the judicial system that God set up to carry out His judgments (Deut 17:9; 19:17; 26:3; Mt 23:2), even though corrupt judges dominated it, and yet were responsible to implement it. It was now up to the judicial system to take over the execution of the woman taken in adultery following God’s law. In this way Jesus upheld His Father’s judicial system.

By forgiving the woman her sin, Jesus did not rule out her judicial execution, but she had the satisfaction of knowing that the High Judge Himself had forgiven her her sin of adultery.

Roger Aus has brought forward evidence that God’s law was still being carried out under Roman rule, and that adulterers were stoned, so that divorce was not the only choice open to Godfearers right up to the fall of the Temple in AD 70.

Jesus showed that His position on marriage was superior to the Pharisees. (1) It is superior in time. Their position can only be traced back to Moses; His can be traced back ‘to the beginning of the creation.’ (2) It is superior in authority. Their position has only the authority of Moses; His has the authority of His Father behind it. In effect Jesus had undermined their position totally by showing how temporal and man-made it was. It has its origin in Man (Moses), and it was discriminatory in that the law of divorce was drawn up by man, for man, and disregarded the right of women to the exclusive use of their husband’s sexuality (cf. 1 Cor 7:4), which is what God intended ‘from the beginning of the creation’ (no doubt) (Ibid., 366-368).

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