Factions in Theonomy: *Ceremonial* Death Penalties?
In a previous article, I mentioned that Christian Reconstruction and Theonomy have always suffered from division and factions. Of course, we need more unity! And I argue that it must come through greater emphasis and productivity in exegesis. This is where I have trained my work in Theonomy. But factions still remain, and we should understand them.
The astute reader will also point out that my articles critiquing Greg Bahnsen and others, as well as my controversial exegetical contributions (cherem, etc.), have only created more division and added to the factions. Again, it’s a “puritans gonna puritan” problem. The more we refine, the more we fracture. I tried to stave this off with a broad tolerance in the definition of Theonomy. Yet I also wrote the now--infamous Chapter 7 in Bounds of Love, in which I showed that many of the Christian traditions that took “Christian” influence in civil law seriously nevertheless did so explicitly against core Theonomic principles. They adopted instead a Constantinian position. These traditions were followed by most of the Reformers as well. I argue further that a good number of those today who would use the label of Theonomy nevertheless are more Constantinian or Roman in their approach than biblically, exegetically theonomic.
I see a trend that unwittingly adopts this Constantinian tyranny among the broader circles of Christian Reconstruction or Theonomy today. The basic idea promulgated is that where the Mosaic law prescribes the death penalty for certain acts, this is nevertheless only a maximum penalty. In a “theonomy” so construed, a civil government could simply impose fines or other light sentences, especially for first offenses or repentant individuals. Heavier sentences could be applied for repeat or compounded offenses. Only the most egregious or flagrant or “high handed” instances would actually receive the death penalty. The same scenario is true, in this view, for blasphemy, apostasy, etc.
A similar view was used by Douglas Wilson when we debated the death penalty for homosexuality. The host, Chris Arnzen, opined that Doug sounded more theonomic than the professed theonomist (i.e., me). This, of course, begs the question, and in a particularly clumsy type of way I have heard repeated many times. It simply assumes that the view more suited (and perhaps more eager) to put homosexuals to death is the one that is more “theonomic.” I have heard some people argue similarly with or about me: they don’t like the cherem principle because it sounds soft on homosexuality or false worship. This unwittingly suggests that they choose their view of God’s law because it gives them an excuse to kill homosexuals, etc.
Support for the “maximum penalty” view is drawn from some passages in the historical books of the Old Testament. In these, certain “good” kings tore down idols and removed sodomite temples, yet are not said to impose the death penalties. Yet God calls them “good” and righteous kings anyway. This must be a tolerable practice. Support also is found in most of the history of the Church, including the express views of Luther, Calvin, many of the Westminster Divines and others. They did not see the death penalties as mandatory; it was good enough for them that the State punished the offense in some way, period.
I do not subscribe to this view. The texts of the Old Testament law are clear: the death penalties are imperatives. They are not stated as maximums; they are stated as simple, direct commands. Some are actually emphatic: “surely be put to death,” or “dying he shall be put to death.” There is no hint anywhere in the code that lesser penalties could apply under that regime.
When Old Testament kings are praised for appearing to do less, it is not actually stated that they did not impose the death penalty. But even granting that they didn’t, they are praised for doing as much they were politically or physically capable of doing. That they were called good or righteous kings is no sanction of what they may have left undone, especially since for some of them, what was left undone included certain areas of idol worship. Certainly this does not mean the laws against false worship actually allowed for a little bit of false worship, does it? No, this was just as much as the kings could do in their historical context. Also, note that even the great Josiah did not spare the nation from eventual captivity and judgment.
As far as the “maximum penalty” model in church history, this itself was the very Constantinian hangover I mentioned. What this model does is effectively give the State some kind of blanket jurisdiction of said areas of behavior: sabbaths, speech, sexuality, etc. It can choose whatever sanctions it wants in any context or venue, up to and including in some cases death (but we’re such benevolent rulers were rarely impose this unfortunate punishment—you can imagine it said). So, this view has the façade of a merciful regime while at the same time creating a vast statism.
This was Calvin’s view of the judicial penalties of Moses. It was a regurgitation of Melanchthon, which was a refurbishing of Aquinas. It was all a repurposing of Justinian Code, which was the grown-up offspring of Constantine’s. And of course, Constantine’s system was nothing but the pagan Roman system turned inside-out and baptized for a “Christian” regime.
Of course, this Constantinian view has done very little throughout history except create tyrannies. It was the very type of thing that sanctioned star chambers, slave trades, and ecclesiastical courts from which many of the puritans and pilgrims risked life and limb to escape (though some rather perpetuated the schemes).
The biblical view confronts us with some rather stark contrasts. These nevertheless force us to rethink biblical theology in such a way that it inspires greater devotion to God, glorifies him more, and provides for greater civil liberty.
First, the Mosaic statues are written in stark, uncompromising terms. They give no wiggle room and create no broad jurisdiction for lesser penalties or generalized governance. They commanded merciless death. “Without mercy” (Hebrews 10:28–29) means no slack.
Further, there is a shock-value of sorts built into the ceremonial laws in general. Placing your hands on a lamb that is then killed, bled-out, then butchered before your own eyes—that was meant to relate a certain level of traumatic shock.
Likewise, in another example, the law prescribed a corporate death penalty for a whole city in which many people are drawn away to worship other gods (Deuteronomy 13:12–18). This was not just a penalty to be imposed upon the guilty individuals. There are obvious ceremonial aspects to it: everyone in that city was to be killed, as well as all their cattle. Further, all their belongings were to be piled up and ritually burned (devoted, that is, cherem, to God). No individual could take any of these spoils for him- or herself; all was to be ritually, ceremonially burned. Further, the city was never to be built again.
Even if we were to grant that there is some natural, moral element to a law for regulating speech, worship, or punishing blasphemy, we would still be forced to admit that the vast majority of the elements commanded in this death penalty were ceremonial. What else would you call these things? I argue that the imposition of death in this case was itself ceremonial.
That death penalty, and many others like it, were never meant to be aspects of common justice, or simple justice. They were ceremonial, and they were meant to make a stark, fearsome point under the Old Covenant administration. Many people are reluctant to see this, in part because we like to keep nice and tidy lines between ceremonial laws and judicial laws; but keep in mind that these are man-made distinctions and categories. The biblical text itself does not draw these distinctions much at all in the same way we do. If we dig deep and see the cherem law, its meaning, and its symbolism running throughout Scripture, it will be easier to understand these places where there is significant overlap between the categories we later created. Simply put, using the language of the later categories, some judicial laws were ceremonial laws under the regime; some ceremonial laws had a judicial element that was itself ceremonial.
Consider also the statute against bestiality: not only could a man be executed for it, but the beast had to be put to death also (Lev. 20:15). Stop and think what civil offense the beast committed such that justice required its death. Given that it is a beast, not a person, it has no civil rights or duties. Summarizing a bit here: the death penalty was purely ceremonial. If that is the case, then it should at least raise the question that the death penalty for the man may have ceremonial aspects to it also. I, of course, argue that it does, and many others do, too. (Such sexual acts, of course, remain sins; just not a civil crime.)
Another place this overlap (and its shock-value) can be seen is in the Mosaic sabbath statutes. I address this point in A Consuming Fire:
Even violating the holiness of the sabbath by doing work merited the death penalty (Ex. 31:13–17; 35:2). While some have attempted to apply this death penalty only to egregious cases or high-handed violations, the texts clearly say “everyone” or “all” who “do work.” No aggravated circumstances are mentioned, and the death penalty is emphatic—“shall surely die.” While high-handed sins merit their own intensified penalties (and there are separate laws revealed for them), the violations here are of a boundary of holiness, and it is black and white. Even so much as kindling a fire in your home on that day counted (Ex. 35:3). (ACF, 21.)
People who try to apply the “maximum penalty” model here end up designing a State which has broad, general jurisdiction over sabbath activities. This manifests as both changes in penalties and in the particular acts they cover. Instead of not doing or requiring work, the sabbath is spiritualized and broadened. At some point in history, this resulted in all kinds of laws about church attendance, church attire, and more. The penalties were proportionately trifled: small fines, etc. Of course, it would be absurd to envision putting someone to death merely for missing church on Sunday. But something very close to that was, as we just quoted, prescribed under Moses: The death penalty for any work on the sabbath, and the prohibition against work was explicitly extended to something even so small as kindling a fire.
This is precisely why the episode about the man picking up sticks on the sabbath is included for posterity. Many in the theonomic camp have tried to ameliorate the prima facie reading of the account. The offense here, it is argued, was actually much greater than it seems. This was a “high-handed,” flagrant, public flaunting of breaking the sabbath, some say. Others suggest this was actually an attempt by a firewood business to get a leg-up on the competition. Somehow the desecration of the sabbath is heightened to a capital offense because of a profit motive (as if that was not also included in the basic sabbath mandate to begin with). But none of these are indicated in the text. Further, if anything so egregious actually had been involved (such as high-handedness) to render the act more understandably a capital offense (somehow), we would not expect the Israelites to have been confused as to what to do. Their confusion arises, however, from the fact that this was the very simple kind of sabbath breaking to which we would all be naturally inclined. Happening upon an instance of it, the Israelites were very likely looking at each other like, “We all know what the penalty is supposed to be here. But really? Are we really going to execute and stone this guy because of something so seemingly insignificant?” (Note: the confusion over what to do with him was not because they had not been told already what the penalty was. The ESV reading can give this impression. But they had already been told clearly what to do in Exodus 31:12–18. Their hesitance was therefore not because they did not know what to do, but precisely because they did.)
The shock factor of the ceremonial aspect of these death penalties come through in full force with God’s sentence: “The man shall be put to death; all the congregation shall stone him with stones outside the camp” (Num. 15:35). One can only imagine the fearful hush that fell over the audience, and then solemnity and dread when the punishment was carried out. This would create an environment of absolute terror and almost paranoia in that immediate community. If this, for this, then who’s next? Walk on eggshells.
I know we don’t want to think of “God’s law” in this way, but the Old Testament code under Moses was specifically designed to inspire this kind of dread, at least in certain ways. This is why the author of Hebrews contrasts it so vehemently with the New Covenant precisely in this way:
For you have not come to what may be touched, a blazing fire and darkness and gloom and a tempest and the sound of a trumpet and a voice whose word made the hearers beg that no further messages be spoken to them. For they could not endure the order that was given, “If even a beast touches the mountain, it shall be stoned.” Indeed, so terrifying was the sight that Moses said, “I tremble with fear.” But you have come to Mount Zion and to the city of the living God, the heavenly Jerusalem, and to innumerable angels in festal gathering, and to the assembly of the firstborn who are enrolled in heaven, and to God, the judge of all, and to the spirits of the righteous made perfect, and to Jesus, the mediator of a new covenant, and to the sprinkled blood that speaks a better word than the blood of Abel (Heb. 12:18–24).
These factors ought to make us question whether the Old Covenant judicial laws as a whole was a system God intended for all times and all places, or whether its strictures are somehow, possibly, in some cases, reflective of the ceremonial system under which they were prescribed. It was a system of continuous bloodletting, burning, slaying, etc. The civil regulations tied to religious worship and devotion in particular bear these same qualities in the civil regulation under that system. Sometimes the ceremonial terror, the “consuming fire” (Heb. 10:27; 12:29), was applied to individuals, or whole cities, or their cattle, or their property.
Second, once we account for these ceremonial aspects—through the biblical doctrine of cherem, for example—we start to see a different view of Theonomy open up for the New testament era. It is hardly some ultraconservative attempt to turn back the clock on society to 1950, or 1850, or 1650, as the case may be. Each of these are visions held by various factions of Theonomy, and they are all simultaneously romanticizings of bygone eras, delusions of grandeur, and recipes for fascistic tyrannies. By contrast, biblical theonomy is, as Rushdoony once described, the closest thing to a radical libertarianism that can be had. The problem is, in too many respects, Rushdoony’s outlook was more like those backward-looking tyrannies than the society of liberty of which he sometimes spoke.
I would like to address to some degree each of the expressions of Theonomy I just mentioned: the 1950, 1850, and 1650 varieties. Perhaps others. I want to show how each is a backward-looking Reconstruction based more upon traditions and romanticizations than on exegesis and the power of the Spirit. Each is more a culturally-bound expression of conservative angst at the more comfy world they have lost to progressives or Marxists or whatever the boogeyman of the era may be. I may also give a few examples of how each employs the “maximum penalty” model outlined and criticized above, and creates a broad-based Christianized fascism. I hope to do this in a future addition to this, what should become a little series on Theonomy.
At any rate, such reconstructions are not biblical, but traditional, and they should be set aside and replaced by a fully biblical, forward-looking, biblically progressive view of God’s law applied, as the New Testament would apply it, in today’s times. That’s a tall order. We theonomists have the jump start on the concept, but many of us need to shed some dead weight in order to do so. In the process, I have to warn you, you will inevitably make some new friends as well as some new enemies. And even more uncomfortably, there will be many who seem to fall in between, and who we cannot tidily categorize.