Death Penalties and the Divine

In Executing Grace: How the Death Penalty Killed Jesus and Why It’s Killing Us, Shane Claiborne argues for the death penalty’s abolition. He wants “to build a movement of grace-driven abolitionists—people of faith and conscience who want to put an end to death forever. … I’m not interested in talking about ‘capital punishment’ as much as I am in talking about the ramifications of grace, mercy, forgiveness, and love.”

Claiborne presses the policy point from a Christian position, and his argument deserves consideration. I’m on board with talking about grace, mercy, forgiveness, and love, and I’m open to prudential arguments for abolishing the death penalty in the U.S. That said, I don’t think the Bible provides Christians with principled grounds for abolition. And I’m less interested in the policy argument than in how the death penalty fits into God’s revelation.

Particularly all the laws stipulating death in the Law of Moses. Their draconian nature troubles many Christians, and scandalizes many non-believers. So I want to take what for moderns is the most scandalous of these scandalous laws as our hard case—those related to sexual sins—and press Jesus on his claim that these and other laws in Moses reveal him and his grace, mercy, forgiveness, and love (Lk 24:27, 44, cf., John 5:46).

Today I consider aspects of Claiborne’s biblical case for abolition. Tomorrow I more broadly consider sex and death in the Bible.

Claiborne claims that “There are only a handful of verses that are used to legitimate execution.” That’s probably true. I would think, however, that Genesis 9:6 would be included on any shortlist of death-penalty verses. Genesis 9:6 passage reports God speaking to Noah, not only authorizing the death penalty for murder, but, more critically, providing a reason for its application:

Whoever sheds man’s blood,
By man his blood shall be shed,
For in the image of God
He made man.

I may have missed a passing citation, but as best I saw, Claiborne does not cite, and certainly does not discuss, this passage in his book. In noting this omission, I am not trying to play “gotcha.” Genesis 9:6 merits focused attention from Christians thinking about capital punishment.

Claiborne starts his discussion of capital punishment in the Bible by considering the penalty in the Law of Moses. Noah, however, precedes Moses, and revelation to Noah cannot be seamlessly identified with revelation to Moses. God relaunches the world in Noah; the word to Noah implicates all humanity. Moses speaks particularly to Israel, a nation chosen out of all the nations for God’s special presence. That matters. Further, given the foundational nature of the Noahic covenant—a re-creation, as it were, out of the chaos of water—the death penalties in Moses, mutatis mutandis, draw on and apply more expansively the justification for the penalty God articulated to Noah.

The reason God gives for the penalty in Genesis 9 merits attention. From the human side, because God created humans in his image, the very dignity placed by God in and on humans justifies the death penalty for the person who destroys that image by murdering another person. The passage immediately short-circuits counterclaims that human dignity prohibits us from putting murderers to death. The one who murders another human strikes at God’s image and so strikes at God himself. As I discuss tomorrow, God’s being and presence cannot be separated from his life and ethics. To attack God’s image is to attack God and perforce to reject him and life.

It is a mistake to think of the explanation in Genesis 9:6 first as a policy or a law. Its first point is to teach, and thereby to avoid application of the law. That’s the purpose of appending the reason. So there is a pedagogical appeal to potential murderers in the passage: “Do not attack God and thereby die. Rather live.” Claiborne writes, “God loves people and does not want people to die.” He is surely correct in that. Genesis 9:6 reflects and teaches that commitment.

God’s words to Noah aside, Claiborne recognizes that he needs to explain the prescription of the death penalty in the Old Testament and the New. To do so, he posits what might be termed a theory of progressive mercy. If this is not too glib, Claiborne seems to suggest that we grade God’s mercy on a curve. He argues that the teachings God gave to Moses about the death penalty were in fact merciful, relative to the standards of the age. In Claiborne’s telling, God’s mercy then progresses in the New Testament, becoming even more manifest in Jesus Christ, and culminating not only in the case for the abolition of capital punishment, but for total non-violence:

Moses’s law limited violence. Jesus wanted to heal us from violence altogether. Moses’s law said that many deserve to die for the evil they’ve done. Jesus went even further, teaching that while all deserve to die […] we all receive from God the gift of life.

The law of Moses was a good start, an improvement on earlier law. But that Mosaic law is fulfilled in Jesus. No law can heal the human heart. [… ]

Jesus takes us back to God’s ideal. Moses moved us toward the ideal, toward the original dream, by limiting violence and divorce and other ugly things. But Jesus takes us even farther. Return evil with good. Do not fight fire with fire. Jesus admonishes us not to engage in retaliatory violence at all—not to take an eye or a tooth or a limb, ever. (Emphasis in original)

While Claiborne seems to be throwing Moses a bone here, I think it’s actually Jesus whom Claiborne lets off the hook too easily. Jesus is Yahweh in the flesh. Yahweh commanded all that stuff in the Law of Moses. So it’s not Moses who’s on the hook, it’s Jesus.

Claiborne directs an organization called “Red Letter Christians.” The distinctive of the group is to take Jesus’s words seriously. That’s great. And the reason Jesus’s words get the red print is because Jesus is Yahweh in the flesh. Of course, putting all of Yahweh’s words in red would press puzzles that require answers from all Christians. Not least is the question, Why did Yahweh commend, even require, the death penalty in the Old Testament for certain sins, including murder, but command its abolition in the New? That Yahweh settled for “a good start” with all of those death penalties in Moses strikes the ear a bit lamely.

Further, in one of those New Testament red-letter passages, referring to “the commandment of God,” Jesus rebukes the Pharisees for failing to apply the death penalty. And he did so for a non-murder offense (Mt 15:3-6, Mk 7:9-13). To be sure, the letters in these Gospel passages are no redder than those in John 8, where Jesus forgives the woman taken in adultery. But they are no less red, either. As with Genesis 9, Claiborne doesn’t discuss the Gospel passages in which Jesus rebukes his hearers for not enforcing the death penalty.

Claiborne does not confine his argument to capital punishment. In making his case for abolition, he draws on a line of argument against the use of violence more generally. This expanded argument applies the prohibition on the use of force—“violence”—to people in their capacities as civil authorities, as well as in their personal capacities. No distinction is made between what is moral for a person acting in an “office” and what is moral for a person acting personally. Claiborne writes: “Jesus admonishes us not engage in retaliatory violence at all—not to take an eye or a tooth or a limb, ever.”

We sometimes sanitize and mystify the fact that governments use violence and the threat of violence by calling it “force” or “coercion.” Those words are not inaccurate, but there’s no reason always to sanitize our discussions. If civil government is justified, then its use of violence and the threat of violence must serve the overall good under identifiable conditions. If civil government is a divine institution, then God perforce authorizes government officials to use violence or the threat of violence in certain situations.

Generic opposition to violence not only means that governments cannot engage in war or put murderers to death; it also means that cops cannot arrest robbers and rapists, and even if they did, the government could not hold them in jail. It also means that paying taxes would be voluntary, with no fines or imprisonment for tax evasion. Thus, no revenue for the government. Nonviolence, as a principle, entails no government, at least in postlapsarian society.

St. Paul helps us with the distinction between personal nonviolence and authorized civil force. He addresses in Romans 12 and 13 the points Claiborne conflates, namely God’s prohibition of personal violence and his authorization of the use of force—violence—by civil government. In a striking passage at the end of Romans 12, Paul echoes Jesus’s flat prohibition on personal vengeance and commends showing grace to one’s enemies:

Never pay back evil for evil to anyone. … Never take your own revenge, beloved, but leave room for the wrath, for it is written, “Vengeance is mine, I will repay,” says the Lord. “But if your enemy is hungry, feed him, and if he is thirsty, give him a drink; for in so doing you will heap burning coals on his head.” Do not be overcome by evil, but overcome evil with good.

Paul is every bit as absolute as Jesus on this point. (The bit about “heaping burning coals” on one’s enemies’ head is temple imagery; a discussion for another time.) Paul’s discussion, however, does not end with chapter 12, it continues into chapter 13: God does not only respond immediately to vindicate his people, but responds through civil authorities as well. Paul terms these civil authorities “ministers of God.” He writes they do not “bear the sword for nothing,” rather they wield that power—that violence—“for good.”

First, on office: Paul’s argument at the end of Romans 12, affirming a flat prohibition on vengeance, is fully consistent with the magistrate’s coercive activity in Romans 13. The magistrate acts in his capacity as God’s minister (or “servant” or “deacon”).

This isn’t new with Paul. The Chronicler reports that when appointing judges, Jehoshaphat admonished them to “Consider what you are doing, for you do not judge for man but for Yahweh who is with you when you render judgment.” So, too, in Deuteronomy, Moses tells Israel that the judges to be appointed should “not fear man, for the judgment is God’s.” Jesus before Pilate tells him, “You would have no authority over me, unless it had been given you from above; for this reason he who delivered me to you has the greater sin.” Of note, being God’s minister restricts magisterial action as well as authorizes it. Neither the Old Testament nor the New teaches uncritical deference to civil magistrates.

Secondly, however, Paul teaches that rulers exist as a “minister of God to you for good.” How do rulers create this good? Paul answers that they “praise” good behavior and induce “fear” for evil behavior. The civil ruler “does not bear the sword for nothing; for it is a minister of God, an avenger who brings wrath on the one who practices evil.”

In a fallen, second-best world, Paul teaches that instruments of violence (and praise) can indeed promote net good. However regrettable the necessity of violence may be, God commissions magistrates to use authorized violence to protect innocent people. While Claiborne himself might be willing to forgo protecting himself from attack, it’s another thing altogether to insist that we, or the civil magistrate, stand aside while other people are attacked.

Further, Paul’s reference to the sword in Romans 13.4 is a pointed synecdoche for executive power or government power more generally. To wit, if God authorizes the magistrate to employ an instrument of death for “the good,” then God authorizes lesser exercises of state violence against criminals as well.

Claiborne argues that the Greek word for sword Paul uses in Romans 13—machaira—is not a sword that kills, or at least is not the type of sword used for executions: “A machaira was a short sword worn on the belt, a dagger. It was not the instrument of decapitation in capital crimes. … [T]he Romans did not use a machaira, the word Paul uses in Romans 13, for execution.” Yet King Herod arrested James with other members of the church, and subsequently executed James “with a sword (machairē)” (Acts 12.1-2).

Claiborne includes numerous other arguments for abolition—prudential arguments, with which I don’t necessarily disagree. Yet Claiborne’s biblical argument for abolition ignores passages in the Bible directly pertinent to the conclusion he claims to establish. Further, the shift in the focus of his argument from opposing capital punishment to opposing violence generally, even when it is exercised by the civil government against aggressors who would harm innocent people, would result in real injustice. In a fallen world, it is only the strong who would benefit from the generalized nonviolence Claiborne advocates; the weak and vulnerable would be their victims. Having a civil magistrate who protects people and provides for their good by using the sword is one way God shows his grace, mercy, forgiveness, and love to his people, and to all people.

Tomorrow I take up the question of how the death penalty fits into the broader biblical narrative concerning Jesus Christ. I discuss, first, how Jesus’s life and passion changed the believers’ relationship, and the world’s, to the Old Testament death penalties. Then we face the puzzle of why Yahweh, the same Yahweh who came in bodily form in Jesus Christ, set down all those death penalties in the Law of Moses in the first place. In particular, we consider how all those laws and teaching reveal Jesus Christ himself, as he said they did (Lk 24:27, 44, cf., John 5:46).

James R. Rogers is associate professor of political science at Texas A&M University. He also blogs at Law & Liberty.

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