Original Meaning

TOWNS FOR LEVITES AND FOR REFUGE. Because the Levites are to receive tithes instead of territory (18:20–24; cf. 26:62), they will not have a part in the division of the Promised Land (ch. 34). Nevertheless, they do need to live somewhere. So chapter 35 instructs the Israelite tribes to give the Levites forty-eight towns distributed throughout their territories, surrounded by pasture lands for their animals (35:1–8).1 Spreading out the Levite ministers of the Lord in this way will help to maintain the religious unity of the nation.

Six of the Levite towns, three on each side of the Jordan River, are to have special legal status as places of asylum/refuge to which any person (Israelite or alien) who has inadvertently killed someone can flee (35:6, 9–15). This plan will make it possible for a manslayer to receive a fair trial without being lynched by an avenger (goʾel, kinsman as “redeemer/avenger”) from the family of the one whom he has killed (35:12; cf. Deut. 19; Josh. 20).

Either of two criteria for what we call “first-degree murder,” however, disqualifies a killer from asylum, so that capital punishment is to be administered by the avenger (Num. 35:16–21): (1) if death occurs by striking with a hard object of metal (iron), hand-held stone, or a hand-held object of wood that is capable of functioning as a deadly weapon (35:16–18); (2) if death is caused by shoving someone, throwing something at him/her, or punching that is motivated by hostile intention (35:20–21a). Unintentional manslaughter, for which the killer is eligible for protection at a city of refuge, lacks both of the factors just described (35:22–25).

Once an Israelite killer runs to a town of refuge, the community will take him and judge between him (as defendant) and the “avenger of blood” (representing the deceased) according to the criteria in this legislation (35:24). Undoubtedly the bulk of the debate centers on questions of intent that require witnesses to testify regarding the history of the relationship between the killer and the one slain. If the community judges the accused guilty of capital murder, he is to be put to death (Deut. 19:12—by the avenger). But if he is acquitted, the community is to return him to the city of refuge. Only by staying there will he enjoy legal immunity to the avenger until the high priest dies, after which he is free to return home (Num. 35:25–28).

Numbers 35 concludes with injunctions for safeguarding justice and preventing corruption (vv. 29–34). (1) Establishing capital murder requires more than one witness. So a single grudge-bearer cannot abuse the judicial system to destroy another person. (2) No ransom (koper) can save any condemned murderer from the death penalty. Thus, wealth or power cannot subvert equal opportunity punishment. (3) Temporary exile to a city of refuge is mandatory for accidentally taking a human life, and no ransom can enable a manslayer to return home before the death of the high priest.

In support of the law that a murderer must die (35:31), 35:33–34 explains that blood(shed)/murder pollutes (Hiphil of ḥnp) and defiles (Piel of ṭmʾ ) the land where the Lord dwells among his people (cf. Gen. 4:10–12). This is a serious problem because his holiness is incompatible with impurity (cf. Lev. 7:20–21). Unremedied, defilement of the land may ultimately lead to exile (cf. Lev. 18:28). It can only be expiated/purged (Pual of kpr) through the blood of the person who shed the blood (Num. 35:33).

Second Samuel 21 shows that the agricultural consequences of bloodguilt could be devastating. A three-year famine resulted from bloodguilt incurred by Saul when he unjustly slew the Gibeonites (21:1). Only after David authorized the Gibeonites to make expiation (kipper; 21:3) by putting some of Saul’s descendants to death did God answer prayer for the land.

Female inheritance and marriage. Numbers 36 consists of a postscript to 27:1–8, where the Lord allowed the daughters of Zelophehad, a Manassite descended from Gilead, to inherit his property. The heads of the clan of Gilead, to which Zelophehad belonged, detected a potential problem: If Zelophehad’s daughters marry men from another tribe, they will thereby join that tribe and take Zelophehad’s property with them, thereby diminishing the allotted territory of Gilead (36:1–3). The Jubilee release, which applies to real estate transferred by sale (cf. Lev. 25) but not by inheritance or marriage, will change nothing. They and their property will have been permanently alienated from Gilead (Num. 36:4).2

The Lord has a simple solution. An heiress will be required to marry within her father’s clan so that her property will stay in the family (36:6–9). The daughters of Zelophehad comply (36:10–12), and that is the end of the story. We can hope that they lived happily ever after.

In keeping with this gentle resolution, which reminds us of the compliance report setting the standard for faithfulness at the beginning of the book (1:54), Numbers concludes quietly with a simple summary: “These are the commands and regulations the Lord gave through Moses to the Israelites on the plains of Moab by the Jordan across from Jericho” (36:13).

Bridging Contexts

DEGREES OF MURDER. The Decalogue commands: “You shall not murder” (Ex. 20:13, NIV). The verb here is rṣḥ (Qal), which refers to wrongful taking of another person’s life, not to killing in general. The familiar King James Version, “Thou shalt not kill,” is misleadingly broad.

As a commandment, the prohibition only has in view the willful act of taking another’s life. It makes no sense to prohibit accidents. Willful killing is not defined solely by the intent to kill, however, since an attack with the will to harm that inadvertently kills a person is treated as murder in Israelite law. This means that the prohibition against killing actually covers lesser crimes as well, that is, any act of violence against another person that might result in death.3

The commandment prohibits killing on one’s own initiative and authority, including suicide. It does not rule out killing animals for food or serving as God’s agents for administering capital punishment. Under the Israelite theocracy, capital punishment could be delivered corporately through holy war (see comments on Num. 31).

In Numbers 35, rṣḥ appears in the usual sense of murder (Qal participle = “murderer”) in verses 16–19, 21, 31. However, in this chapter the same word is also used more broadly of an accused killer, including an unintentional manslayer, who has yet to be judged as guilty or innocent of first-degree homicide (vv. 6, 11, 12, 25). The warning in verses 26–28 that such an accused person is only safe from the avenger inside a city of refuge applies both before and after the trial. The text continues to call him a roṣeaḥ (“murderer”) in view of the accusation, without making the obvious distinction that if he is judged innocent, he is not really a murderer.

In chapter 35 the Qal of rṣḥ also refers to justifiable capital punishment carried out by an avenger of blood on an unintentional manslayer who leaves his city of refuge (35:27) or by a court on a convicted first-degree murderer (35:30). This does not mean that such punishment is regarded as culpable homicide; 35:27 qualifies that an avenger who does this has no “blood” (i.e., bloodguilt). It appears that the term rṣḥ is chosen because capital punishment redresses a murder or manslaughter that has already occurred.4

Redeemer/avenger. An ancient Israelite kinsman of a slain person, acting in the legal capacity of a goʾel (Qal participle of gʾl, “redeemer/avenger”) has the right and responsibility to avenge the death on behalf of the victim and his clan (Num. 35; Deut. 19), even if the murderer and victim belong to the same family (cf. 2 Sam. 14).

A goʾel is not required to weigh possible guilt or innocence, but simply acts without asking questions, likely under the highly motivating influence of hot rage (cf. Deut. 19:6). So it is up to an unintentional manslayer to flee beyond his reach. By instructing the killer to leave the territory where the tragedy has occurred and by avoiding conflict of interest, not attempting to require grieving relatives to protect the killer, the Pentateuchal legislation regarding manslaughter realistically recognizes human nature in order to prevent lynchings.

A goʾel is one who represents the interests of his relative, whether that relative is dead or alive. For example, a person who wrongs another must make restitution to that party (Num. 5:7), but if this is impossible, presumably because the wronged person has died, the restitution goes to the goʾel if there is one (5:8). In Leviticus 25:25, a goʾel may redeem (gʾl, i.e., buy back) the ancestral land that a poor relative has been constrained to sell (cf. Ruth 4).

The numerous biblical references to God as goʾel (“Redeemer”), especially through the latter part of the book of Isaiah,5 emphasize that the Lord is the great Kinsman, who bears responsibility for his weaker human “relatives.” He is strong to defend the cause of his people (Jer. 50:34; Prov. 23:11), to deliver them from harm (Gen. 48:16) and bondage (Ex. 6:6; 15:13), and to avenge for them (Deut. 32:35; Rom. 12:19; Heb. 10:30; Rev. 6:10–11). Escaping from God is impossible (Ps. 139:7–12), so the guilty can run, but they cannot hide from a divine “all points bulletin.” However, because the Lord is also a fair Judge (96:10, 13), the innocent need not flee from him as an innocent Israelite must flee from a human goʾel.

An ancient Israelite goʾel could avenge blood, but not restore the life that was lost. The divine Kinsman not only avenges the blood of his people; he redeems their lives from the pit of death (cf. Ps. 103:4). As their Creator, he can restore them to life (e.g., Dan. 12:1–3; 1 Cor. 15:51–54; 1 Thess. 4:13–18). So with him as their Kinsman, it is of no eternal consequence that they die, as long as their divine Redeemer lives (Job 19:25–27).

Release at death. An unintentional manslayer was free to leave a city of refuge only when the high priest died (Num. 35:25, 28). Why? Although the killer was not guilty of first-degree murder, he had committed the inadvertent/accidental (35:11) offense of manslaughter. A purification offering of an animal could remedy other kinds of inadvertent faults (Lev. 4), but not manslaughter, because it took the life of a human being. Only the life of another person could suffice, and only a priest was authorized to bear the culpability of others (cf. Ex. 28:38; Lev. 10:17). However, instead of calling for legal/ritual slaughter of a priest in place of the accused manslayer, the Lord accepted the natural death of the high priest as satisfying the demand of justice.

In the New Testament, Christ is the heavenly high priest (Heb. 7–10), but his expiatory death on behalf of sinners was not a natural one. Bearing human sin as Priest and then dying for that sin as sacrificial Victim (e.g., 7:27; 9:12, 14–15, 26, 28; 10:5–14),6 he has united in himself the roles by which we are set free from culpability so that we are free to go “home.”

Contemporary Significance

THE BIBLE AND CAPITAL PUNISHMENT. In their Ethics for a Brave New World, J. S. and P. D. Feinberg conveniently summarize biblical arguments by modern opponents to capital punishment. I will dialogue with these arguments by quoting the Feinbergs and then responding.

Opponents of the death penalty emphasize the fact that the Law of Christ is love. Scripture requires believers to love and serve their neighbors (cf. Matt 22:37–40; 25:31–46; 1 John 3:18; 4:12, 20). Moreover, believers must love their enemies, not execute them (Matt 5:43–44). Revenge is forbidden (Rom 12:17–19; 1 Pet 3:8–9). Forgiveness of those who offend us is enjoined. In responding to lex talionis, Jesus explicitly replaced retribution with the principle of reconciliation (Matt 5:23–24). These considerations totally rule out capital punishment.7

True, God’s law is love. But his love has always included justice as well as mercy. Is it loving to merely incarcerate a predatory murderer, rapist, or child molester and later let him/her out on parole? It depends on whose interest we have in mind—that of the criminal, the victim, or potential future victims. Mercy to one can be decidedly unloving to another.

It is true that Christ commanded love for enemies, forgiveness, and reconciliation rather than retaliation. These principles are already in the Old Testament. For example, Leviticus 19:18 says: “Do not seek revenge or bear a grudge against one of your people, but love your neighbor as yourself.” However, a few chapters later, the same book stipulates: “If anyone takes the life of a human being, he must be put to death” (24:17). Is this a contradiction? Not if we realize that chapter 19 is addressed to individuals but chapter 24 is for the community. God’s people were not to seek revenge, but a murderer was condemned to execution by the civil community. The latter was not revenge; it was divinely mandated retributive justice.

In Matthew 5:38–42, Christ was speaking to individuals, some of whom were undoubtedly inclined to seize on the lex talionis (law of retaliation: eye for an eye, etc.) as justification for vengeance, especially against the Romans. Although they may have thought they should control society, they did not possess civil judicial power. Neither did the New Testament church have civil power to inflict physical punishment. The only executions in the context of the church were of Ananias and Sapphira, slain by God himself (Acts 5). However, Romans 13 makes clear that even outside theocracy, God mandates state civil power to maintain order in society by restraining and punishing wrongdoers (see further below).

The next argument against capital punishment, as summarized by the Feinbergs, is based on God’s mercy for biblical murderers:

Another objection appeals to biblical examples of mercy. Cain, David, and Moses murdered intentionally, not accidentally, but God extended them mercy. David and Moses went on to live fruitful and productive lives of service for the Lord. Given these examples of divine mercy and human rehabilitation, how can we withhold mercy to those convicted of capital crimes? At minimum, these biblical examples show that even if capital punishment is permissible, it is not mandatory.8

Granted, the Lord had the right to grant mercy, and he knew what he was doing. He also chose to end the lives of large numbers of people, including all but eight of the antedeluvian population (Gen. 7), the inhabitants of Sodom and Gomorrah (Gen. 19), Nadab and Abihu (Lev. 10), Korah and his associates (Num. 16), Uzzah (2 Sam. 6), and so on. Since human society lacks God’s insight with regard to individual cases, how does it know which example of his to follow? The answer is: It doesn’t, and God has never expected it to. Even in ancient Israel, with its access to divine oracles (e.g., Urim and Thummim, worn by the high priest), the Lord allowed for no equivocation or alternative: “Do not accept a ransom for the life of a murderer, who deserves to die. He must surely be put to death” (Num. 35:31).

Even merciful divine pardon does not erase all consequences of cause and effect. Cain was banished to a life of wandering (Gen. 4). Moses was forced to flee into exile (Ex. 2). David lost his first son born to Bathsheba (2 Sam. 12:14–23) and experienced a chain of subsequent troubles in his household (foretold by Nathan in 12:10–12) that claimed the lives of three additional sons: Amnon (ch. 13), Absalom (ch. 18), and (after David’s death) Adonijah (1 Kings 2). In accordance with David’s response to Nathan’s parable, he paid fourfold (cf. 2 Sam. 12:6).

In the NT, mercy is also present. The best-known case is recorded in John 8:1–11. A woman caught in the very act of adultery was brought to Jesus. The law demanded her execution (Lev 20:10; Deut 22:21, 24). However, Jesus instructed those without sin to cast the first stone. When the accusers left, Jesus told her that he did not condemn her; she should go and sin no more. Opponents of the death penalty stress the importance of this passage. It is the one case where Jesus spoke to the applicability of the death penalty, and he did not demand it.9

Jesus’ opponents placed this case before him as a “trap, in order to have a basis for accusing him” (John 8:6). On what basis could they accuse him? If his verdict was death in accordance with the law of Moses, they could report him to the Romans, who had revoked the right of the Jews to administer capital punishment.10 But if Jesus escaped that side of the trap by ruling that the woman should not die, his enemies could then accuse him of not upholding the law of Moses. Of course, they were not following Moses either: Leviticus 20:10 and Deuteronomy 22:22 stipulate that both parties to adultery must die. If they had witnesses, who were necessary for a capital case (17:6; 19:15), why didn’t they bring the woman’s paramour to Jesus as well? The contrived judicial drama did not present a straightforward question of Jesus’ approach to biblical law. That was not its purpose.

Jesus did not deny that the woman was guilty of adultery and worthy of death. He only said: “If any one of you is without sin, let him be the first to throw a stone at her” (John 8:7). Justice demanded that the accusers be more righteous than the accused. Since the accusers were unwilling to commit themselves to this level of moral responsibility, at the risk of scrutiny and condemnation against themselves, the execution was simply short-circuited when they all went away (8:9). Then Jesus, who had not been a witness, forgave her as a divine act of grace (8:11), equivalent to his divine forgiveness of a paralytic (Mark 2:5–12) and to God’s mercy in the cases of Cain, Moses, and David. This passage is not evidence against the administration of capital punishment by the state.

Another biblical argument against the death penalty invokes OT judicial procedure. David Llewellyn notes five key aspects of the Mosaic application of the death penalty. These procedures were meant to prevent the miscarriage of justice. If Mosaic standards were used today, the death penalty as currently practiced would be outlawed.

The five procedural items are: 1) Absolute certainty of guilt was required for conviction (Deut 17:4). This is stronger than the American rule of proof beyond reasonable doubt. 2) Conviction required the testimony of more than one witness (Deut 19:15; Num 35:30). Given the need for certain proof, most likely those witnesses were to be eyewitnesses. Moreover, since stoning to death was to be done by the witnesses (Deut 17:7), one might suspect reticence to cast the first stone unless one was an eyewitness. 3) To discourage attempts to “frame” someone for a crime, witnesses who committed perjury in capital cases were themselves to be executed (Deut 19:16, 19). 4) In difficult cases the verdict was deferred to judicial experts (Deut 17:8, 9). This differs from the American system in which jurors who often do not understand law must decide anyway. 5) If the verdict was “guilty,” the death penalty was mandatory (Lev 27:29; Num 35:31). Lighter sentences could not be adopted. This made discriminatory application of the death penalty impossible; i.e., all people, regardless of social standing, etc., were treated equal if deemed guilty.

With these regulations, undoubtedly fewer people were convicted under the Mosaic system than under others like the American system. Opponents of the death penalty maintain that if God really wants the death penalty enforced, it ought to be administered as God required. Until then, it should be outlawed.11

Here the question is not whether capital punishment per se for certain kinds of crimes is morally defensible, but whether the procedure leading up to condemnation is just. With regard to biblical capital punishment for adultery, we can add a sixth safeguard: Both parties were to be executed (Lev. 20:10; Deut. 22:22–24).

The importance of executing both parties to adultery can be illustrated by a case in Nigeria. In the village of Kurami in the northern state of Katsina, where adultery is now a capital crime under Shariʿa (strict Islamic law), Amina Lawal gave birth late in 2001 to a baby girl after leaving her second husband and having an affair with Yahaya Mohammed. Because Shariʿa requires four reliable witnesses to the sexual act and apparently there were none, Mohammed could not be convicted. However, a judge ruled that the baby was sufficient proof of Lawal’s guilt. Under Islamic law it is typical for only the female party to be punished for adultery. Lawal was sentenced to be buried in the ground up to her chest and stoned to death as soon as she weaned her daughter.

Although Lawal lost one appeal, the national Nigerian government pledged support for another appeal process.12 Her conviction was overturned in 2003 by an Islamic appeals court in Katsina.13

In the context of the ancient Israelite theocracy, for which the biblical penalties were instituted, a woman with Lawal’s circumstances could not be executed. Deuteronomy 22:22 says: “If a man is found sleeping with another man’s wife, both the man who slept with her and the woman must die. You must purge the evil from Israel” (emphasis supplied; cf. Lev. 20:10). Unless a woman is supposed to be a virgin bride (Deut. 22:13–21) or the Lord himself convicts her through the suspected adulteress ritual (Num. 5:11–31), the couple must be caught in the act and the man must also die. If there is insufficient evidence to convict the man, the woman must not be stoned either. The fact that she gets pregnant is not enough.

Granted that Lawal had a baby, is it really Mohammed’s? The only way to absolutely prove that illicit intercourse occurred is to catch a couple in flagrante delicto, as in Deuteronomy. DNA testing can prove paternity, but where DNA testing is available, so is artificial insemination.

As Llewellyn shows (see above), the biblical protocol achieves fairness with remarkable simplicity, from which our bloated and bogged-down judicial system would do well to learn. One suspects that the ancient Israelites could achieve more justice in a morning than our multimillion dollar trials accomplish in months with teams of lawyers. Imagine how many billions of dollars taxpayers could save, even if we subsidize the retraining of some lawyers for alternate careers!

Does judicial dysfunction warrant a moratorium on our capital punishment for murder, pending reforms that include elimination of racial discrimination? In unclear cases, yes, just as an ancient Israelite capital case was to be dropped unless there were at least two witnesses (Deut. 17:6; 19:15). But why should society foster injustice and disregard for the lives of others by abdicating its God-given right to permanently purge itself of predatory individuals whose guilt is clearly proven? For clear proof in some cases, especially those that involve rape, we now have DNA testing as a reliable witness that was not accessible to the Israelites.

Opponents of the death penalty know that the preceding arguments cannot negate clear biblical prescriptions to enforce the death penalty. Genesis 9 and Romans 13 are often understood to provide that mandate, but opponents think those passages do not prove the case.

As to Genesis 9, opponents complain that supporters of the death penalty focus on verse 6, but ignore the injunctions in verses 4–5. Verse 4 apparently prohibits eating rare meat, and verse 5 requires the execution of animals who kill humans. No one demands enforcement of those injunctions, but, then, consistency dictates ignoring the commands about capital punishment.14

The prohibition to eat meat from which the blood is drained out at the time of slaughter (Gen. 9:4) is enforced with the divinely administered penalty of “cutting off” (see comments on Lev. 17:10–14). So it is not up to human society to enforce this law. Similarly, God says that he will hold an animal accountable for taking human life (Gen. 9:5a). However, while he also holds human beings accountable for murder (9:5b), he delegates administration of capital punishment to other human beings (9:6).

Genesis 9:6 reads: “Whoever sheds the blood of man, by man shall his blood be shed; for in the image of God has God made man.” The motive clause (“for in the image . . .”) is highly significant: “Every human person is sacred, the bearer of the image of God, and to kill a person is to violate God. Having taken life, the killer forfeits the right to life, and the human community is authorized to impose the death penalty.”15

Today some argue that capital punishment for murder reflects a worldview in which life is cheap, but the Bible indicates exactly the opposite: Life is so valuable that a murderer who takes it cannot pay for his crime except with his own life (Num. 35:31). This approach to murder as an absolute crime contrasts with other ancient Near Eastern legal systems,16 which permitted composition/ransom for homicide.17

Second, the statements in Gen 9:5–6 may be predictive, not prescriptive. That is, rather than demanding the execution of murderers, the passage may merely predict that those who take life can expect to be killed in return. The Hebrew does not decide the issue, for the verbal form in verses 5–6 could be either imperative or indicative. Because of the implications of taking this passage as a mandate, there must be clearer evidence that it is a command than this.18

In Genesis 9, the Lord is setting up the post-Flood world order. While he now permits eating meat (v. 3), he prohibits ingesting the blood (v. 4). Here the context dictates that loʾ + imperfect verb be taken as the usual way to express a categorical prohibition: “You must not (ever) eat. . . .” What sense would it make for God to merely predict that people will not eat meat with the blood still in it? Verse 5 states what God commits himself to do: hold animals and humans accountable for human life. Then comes verse 6: “Whoever sheds the blood of man, by man shall his blood be shed.” Human instrumentality is the way in which God systematically holds murderers accountable. Whether the sense is imperative or indicative, this is the divinely mandated order of things.

Finally, both Genesis 9 and the Mosaic Law require that execution of murderers be done by a blood relative of the victim. In fact, Gen 9:5 designates the victim’s brother to do it. This is surely a far cry from the state having the right of capital punishment. Thus, Genesis 9 cannot apply today.19

Genesis 9:5 says that God will demand an accounting from each human being regarding the life of his “brother” (meaning a fellow human being). This does not mean that only a victim’s brother can administer capital punishment.

In Numbers 35 and Deuteronomy 19, the kinsman of a murder victim, called the “avenger [lit., redeemer] of blood,” functioned on behalf of the victim’s clan as policeman and executioner responsible for apprehending the culprit and putting him to death. This was within the framework of tribal society. Israel was not a state in the modern sense, and it lacked a professional law enforcement infrastructure. If it was legitimate for a kinsman with vested interests to implement society’s mandate, we could argue that it would be even more legitimate today for agents of society who are not relatives of victims to carry out the same penalty.

What about Romans 13? Opponents of the death penalty think it neither mandates nor warrants the death penalty. The key phrase is, “it does not bear the sword for nothing” (v. 4). Does this reference to the state bearing the sword mandate or even allow capital punishment? Opponents deny that it does. They argue that while the sword clearly refers to the state’s authority to punish evildoers, it does not demand that the state punish by execution. Under the Roman Empire most crimes were not punishable by death, but the sword was still an appropriate symbol for Rome’s authority to punish criminals. Also, Rome did not execute by the sword; capital offenses were punished by crucifixion.20

Why would a New Testament writer demand whether or not the Roman empire should punish by execution, as if such a demand would be heard? Here Paul’s point is that because God mandates the state to preserve basic law and order, Christians should “submit to the authorities, not only because of possible punishment but also because of conscience” (Rom. 13:5). As for the idea that Rome did not execute by the sword, how did Paul himself lose his head?21 He was spared from the much worse fate of crucifixion because he was a Roman citizen and it was forbidden to crucify such citizens.

The bottom line of our discussion is that the Bible gives society the authority to administer capital punishment for some kinds of clearly established crimes, such as murder. If some people oppose any form of capital punishment, that is their right, but their position does not harmonize with that of the Bible.

It is important to keep in mind that although a person who justly suffers capital punishment has forfeited the present life, it is possible for him or her to enjoy the promised Paradise to come. When a dying criminal on the cross next to Jesus expressed his belief and repentance by saying, “Jesus, remember me when you come into your kingdom,” Jesus promised that the man would be with him in paradise (Luke 23:42–43).