Deuteronomy 25:11-12, an Eye for an Eye, and Raymond Westbrook: A Reply to Hector Avalos

Recently Hector Avalos has responded to a particular argument in my book Is God a Moral Monster? (Baker).  In it, I follow biblical scholar Jerome Walsh’s interpretation of Deuteronomy 25:11-12:[1] If two men, a man and his countryman, are struggling together, and the wife of one comes near to deliver her husband from the hand of the one who is striking him, and puts out her hand [yad] and seizes his genitals, then you shall cut off her hand [kaph]; you shall not show pity.

I first came across Walsh’s perspective by way of Richard Davidson’s book on sexuality in the Old Testament, Flame of Yahweh (Hendrickson)—a book I highly recommend.  I follow both Walsh and Davidson on the view that this text is not referring to amputating the hand, but rather depilation.  This was a punishment of humiliation involving shaving a woman’s pubic hair in the kaph—the curved region below the waist.  I won’t elaborate on what my book says, but I’ll simply address Deuteronomy 25:11-12 in the bulk of this blog posting.  In the post, I’ll address the question of lex talionis (“an eye for an eye”) and the work of Raymond Westbrook.

1. Preliminary remarks: I have been in communication with Jerome Walsh, who prefers to stay out of the discussion.  Walsh has read Avalos’s post, though, and noted too that he did not see anything new in Avalos’s arguments that he hasn’t encountered before.  He simply saw nothing linguistically to persuade him to alter his views.

Avalos’s repeated identification of kaph = “hand” as the “literal” meaning is misleading.  While it may be the commonest meaning, the term has less-common usages too (the bowl of a spoon, the frond of a palm tree).  It’s unproductive to start from the assumption that commonest meaning is the only one allowable unless one can prove otherwise.  The point in the article is that yad tends to refer to the hand without connotation or nuance, or when the hand is envisaged, as an instrument of pointing, hitting, doing.  Kaph, so far as he can see, connotes the hand as an instrument of grasping and holding, thus the curvature and the focus on the palm.

In Walsh’s estimation, Avalos seems to be operating from the position of a methodological absolutism:  “X” is the common opinion, and unless one can definitively prove not-X, then one must espouse X.  He doesn’t appear to leave much room for “more likely” or “less likely” as the possible evaluation of a hypothesis.

Avalos cites Marc Cortez for support: “The Law on Violent Intervention: Deuteronomy 25.11-12 Revisited,” Journal for the Study of the Old Testament 30:3 (2006), 431-47.  As I note in my book, though, it is unfortunate that Cortez fails to interact with Walsh’s essay, which had been published two years earlier.

In correspondence with Walsh (May 2010), he commented on an online version of Cortez’s article.  He pointed out that while Cortez dismisses Eslinger’s attempt to identify kaph with gynecological exactitude (and he can agree with Cortez on that point), Cortez does not deal with the fact that kaph is used not just for the palm of the hand, but for several other curved, arched objects, both corporeal (sole of foot) and not (bowl of a spoon, frond of a palm tree).  Walsh’s argument simply treats kaph as the curve of the groin, a very likely meaning in Song of Solomon, and (pace Cortez) in Genesis as well.

Cortez wants to retain without discussion the understanding of kaph as “hand.”  But Walsh notes that Cortez’s explanation of why a “talionic” law would equate “hand” as an instrument of offense with “palm of the hand” as the object of “cutting-off” is, basically, “why not?”  That begs the question.  Further, he ignores completely that there is no reason whatsoever for treating the qal of qatsats as if it were the piel.  In the piel, it clearly means “to cut off.”  In the few other instances of its appearance in the qal, it means “to cut (hair).”  Why, in this unique case, should the qal be translated as if it were a piel?

Now, Walsh readily acknowledges that his article is not the standard reading of the passage, and that Cortez’s evaluation of others’ interpretations of Deut 25:11-12 is judicious, careful, and sober.  He would agree with Cortez completely that the peculiarities of this unique law in the Israelite corpus have led scholars to some truly egregious attempts to make sense of its oddity.  And Cortez is very good indeed at identifying the unpersuasive lengths to which some scholars have gone.  But he, like all of those scholars, has not looked at the words.  This is the contribution that Walsh’s article proposes to make.  Instead of accepting unquestioningly that “you shall cut off her hand” is what the Hebrew words mean, he has argued that that is a misreading of the Hebrew terms.  To put the disagreement in a nutshell, let me quote a line from Cortez’s article.  Cortez says:  “The first and most important question that must be addressed with respect to the woman’s punishment is whether or not it should be understood as an application of the lex talionis.”  Not so.  The first and most important question that must be addressed with respect to the woman’s punishment is WHAT THE WORDS MEANOnly then can we even approach the question of whether or not the punishment is a talionic counterpart to the crime.

In short:
(a) Kaph does not refer to the “hand,” simply speaking.  It refers to the hand as an instrument of containing (thus as a curved holder, often translated as the “palm of the hand”).  Yad refers to the hand as an instrument of control, of holding, of pointing.  To treat the two terms as synonyms in order to establish the talionic quality of the law is unconvincing.

(b) Kaph clearly can refer to the genital region.  Even if one does not follow Eslinger’s particulars (and I most certainly do not), the uses in Genesis and Song make it clear that something below the waist is intended.  Kaph can also refer to several other bodily and non-bodily curved objects.

(c) The verb qatsats means “cut off” in the D-stem (the piel).  To assume that it means that in the qal has no justification in Hebrew.  Our only qal examples of the verb other than the passage under consideration are universally accepted as meaning “to shave.”
Those observations invalidate the translation “cut off her hand”; Walsh’s proposal is an attempt to cope with that invalidation and offer an alternative that is consistent with what we know of Hebrew.

Here are further points to note:

2. Concerning kaph: Yes, kaph certainly does mean “whole hand” in numerous instances.  It doesn’t refer only to the palm of the hand.  Yad can be distinguished primarily by the nuance of grasping or holding (kaph) versus that of pointing or striking (yad), but there is clearly a great deal of denotational overlap.  Therefore, there could be a talionic quality to the law, despite the shift from yad to kaph:  she puts out her yad, but grasps with her kaph, which is the instrument of crime and therefore the object of punishment.  (Others have argued, in somewhat the same vein, that yad means the hand-including-[part-of-]the-forearm, whereas kaph means the hand from the wrist down.  Thus only the kaph gets punished, since the kaph is the specific part of the yad that touched the assailant’s genitals.)

Even though kaph refers preponderantly to the human hand, not to other objects, the meaning of kaph is not the starting point of Walsh’s argument.  Given that kaph can mean other parts of the body as well, and that the usages in Genesis and in Song of Solomon indicate that it can be used of some bodily area below the waist, one shouldn’t foreclose the possibility of such a meaning here before having examined the rest of the verse.  Eslinger’s arguments for a sexual referent (especially in the explicitly sexual context of grasping the assailant’s genitals) are strong.

3. On the verb qatsats: It is true that, sometimes, a verb can be used in both piel and qal in almost the same senses.  But this is clearly not the normal practice with Hebrew verbs.  The D-stem (the piel) transitivizes an intransitive qal, or (often) intensifies it.  Sometimes it means something entirely different.  Here the intensifying force is seems inescapable.  Why assume that the qal and piel do mean the same thing unless that conclusion is inevitable?  Otherwise, why distinguish two morphological categories?

Hezekiah “shaved off” the gold leaf from the Temple doorposts, using the D-stem of qatsats (2 Kgs 18:16).  That is the reading of RSV, NRSV, NIV (and probably other versions as well); they translate it “stripped.”  It is unconvincing.  If the decoration is gold plate, one “removes” it or “cuts it off” (qatsats, D-stem), one does not “shave” gold plate.  And if the decoration is gold leaf, which could theoretically be “shaved,” wouldn’t it make more sense to follow other versions (e.g., NAB, NJPS) in assuming that Hezekiah had the gilded doors and doorposts themselves removed and sent as tribute?  In Walsh’s view, that is what is pretty clearly meant.  Cogan and Tadmor, in the Anchor Bible, argue for “stripping,” and call the idea that Hezekiah “cut off” the doorposts “novel”; they then cite two passages (2 Kings 16:17 and 24:13) to support their idea.  In Walsh’s reading, both passages they cite undermine their argument and demonstrate that qatsats in the D-stem clearly means to “cut up” or “cut off.”

In the qal, qatsats is very rare.  Aside from Deut 25, it occurs only three times, always in the same phrase, and always in Jeremiah, to describe a particular group of desert raiders (Jer 9:25; 25:23; 49:32).  There is nothing in any of those texts to suggest that this shaving was ritual, that it was considered “mutilation,” or that it deserves the term “hacking off” (which tries to reintroduce the intensification of the D-stem sub rosa).  There is absolutely nothing in any of the three Jeremiah texts to indicate that the term refers to more than a distinctive hair-style (or perhaps beard-style), created precisely by the way the hair was cut or shaved (qatsats in the qal).  (The Hebrew is, literally, “shaved at the edges”; “temples” is a more or less conventional translator’s guess as to what part of the cranium the “edges” are.)  Far from being scorned as a form of mutilation, hair-shaving appears in approved Yahwistic rituals, as Walsh mentions in his article (see Numbers 6 on the Nazirite; Deut 21:12 [what appears to be a mourning ritual]; and especially Numbers 8:5-14, where the purification of a Levite in preparation for undertaking his sacred duties includes shaving all his hair, presumably including pubic hair).

In short, there is no evidence in any of the appearances of qatsats of an overlap between piel (“to cut off, to sever, to amputate”) and qal (“to cut [hair]”) meanings.

4. What of “show her no mercy?”  It is true that the few other instances of this formula (apparently four, all in Deuteronomy) appear in contexts of serious crimes and punishments (usually, though not always, involving death).  But it need not be assumed that the formula is appropriate only when such seriousness is the case.  It seems to be a stereotyped legal formula, and that suggests that its function may be other than that of a literal admonition or an expression of outraged horror.  Scholarly argument has been made that the force of this formula is to disallow the alternative of substituting a fine for the specified punishment.  If that is the case, then it preserves the talionic relationship between offense and punishment (notice that the same formula is associated with the fundamental statement of talion in Deut 19:21) and does not allow the woman to escape her public humiliation by paying a fine (something her husband may have been quite willing to do for her, since she has saved him from a beating).  But this does not require us to deem whatever she did as heinous as murder and other “show no mercy” offenses.

5. What of the Septuagint (LXX) and Aramaic translations?  True, these translators render the verb qatsats as “cut off” (rather than “shave”), but the greater weight should be given to the Hebrew text.

 6. A clear parallel in Middle Assyrian Laws (MAL) with Deuteronomy 25:11-12? A common argument in an attempt to show that Deuteronomy 25 refers to a literal amputation is that there is a purported parallel in Middle Assyrian Laws. However, the single most significant difference between the MAL (A ¶¶ 4) and Deut 25:11-12 is that the MAL explicitly cites the crushing of the man’s testicle(s).  The biblical passage does not.  One can’t formulate a law and leave out the specifics of the crime!  True, the verb hzq can sometimes imply damage, but more often it does nothing of the sort.  Therefore this law, as formulated, would apply to any woman who took hold of the assailant’s genitals whether or not she did any damage.  The parallel with the MAL, as attractive as it seems superficially, founders on that difference.  Moreover, there is no sense of proportion (as there is in the MAL).  The verb hzq might mean simply grab, or grab (roughly), or grab (and squeeze), or grab (and crush), each of which—if this is a talionic law—would require a different punishment (as in the MAL); but there is no such recognition of degrees of damage and correlative degrees of punishment.  And therefore the mutilation-as-punishment mandated by the MAL can’t be used to argue for a “mutilation” interpretation of Deut 25:11-12.  Rather this passage refers to a punishment of humiliation.  As Raymond Westbrook, in his History of Ancient Near Eastern Law, writes of punishment in the ancient Near East: “Humiliation was a valid form of punishment.”[2]

At any rate, Walsh’s case for depilation should not be so easily dismissed.  In fact, Bruce Wells, who has coauthored Everyday Life in Biblical Israel with Raymond Westbrook, recently reviewed a summary of Walsh’s case for depilation rather than mutilation.[3]  He concurred with Walsh!

As for the interpretation of Deut 25:11-12, I find the summary that you gave quite convincing. In fact, it fits the talionic pattern better than the traditional interpretation. If a second edition of Everyday Law ever comes out (and I have no idea if this will ever happen), I will make it a point to include this interpretation. The only thing I would add is that, according to my understanding of biblical and ANE law in general, compensation in place of the shaving would still have been an option in situations like this.[4]

7. A Misuse of Raymond Westbrook’s Work? Finally, let me comment on Avalos’s “challenge” to both Matt Flannagan and me.  We argue that the three talionic passages (“an eye for an eye”) in the Pentateuch do not require bodily mutilation but make provision for monetary compensation.  For example, Exodus 21:22-25 makes room for such monetary provision in repayment for physical injury.   Matt Flannagan and I have appealed to various scholars, including the late Assyriologist Raymond Westbrook, for support on this.  Avalos has thrown down the gauntlet to give a simple “yes” or “no” on whether Westbrook viewed one of these talionic passages—namely, Leviticus 24:17-22—literally.

First, here is Avalos’s initial charge against Flannagan: “Why Dr. Flannagan Fails History”.

Westbrook has made himself quite clear in Everyday Law in Biblical Israel: An Introduction [Louisville: Westminster/John Knox Press, 2009], pp. 78-79). Therein he discusses how later Rabbinic literature, and specifically Mekhiltah Neziqin 8 to Exodus 21:24, claimed that “An eye for an eye’ [means] money.”

Westbrook comments: “This interpretation seems strained to a modern reader. The introduction to the formula in Leviticus 24:19 is unequivocal: “If anyone maims a fellow, as he had done so shall it be done to him” [emphasis Avalos’s].

Then Matthew Flannagan responded to Avalos’s charge (“A Reply to Hector Avalos’s ‘Why Flannagan Fails History’”) that Flannagan had egregiously misrepresented Westbrook on the above passage.  Flannagan interpreted Westbrook as saying that even though Lev. 24:19 (seemingly) presents an unequivocal formula for literal maiming and that the rabbinic interpretation (“eye for eye” means “money”) seems strained to modern readers, this rabbinic understanding is actually on track.

In a June 30 comment by Avalos responding to Flannagan’s “Reply to Hector Avalos,” Avalos says this (my italics):

 Note Westbrook’s phraseology: “Scholars have therefore tended to see the rabbinic opinion [that ‘an eye for an eye’ means ‘money’] as a disguised reform.”

The scholars who see the Rabbinic monetary payments as a “reform” are the ones that are incorrect in Westbrook’s opinion, and NOT the ones that hold that Lev. 24:17-22 was meant literally. That should be clear if you had read enough of Westbrook’s works, which clearly you have not done.

 Why not just admit you [Matt Flannagan] are wrong instead of making it worse for yourself?

Then atheist John Loftus, confident in Avalos’s judgment, piled on and proceeded to accuse Flannagan and me of “lying for Jesus”—or something close to it:

(Ironically, I had posted comments in response to Matt Flannagan’s “Reply to Hector Avalos,” as Matt Flannagan pointed out how Hector Avalos had misrepresented me as well.  Did Avalos admit he was wrong, despite my follow-up comments further exposing Avalos’s misrepresentation?  Not at all. He asserted he stood by these misrepresentations as accurate and then engaged in what struck me as diversionary tactics, calling on me to declare whether Westbrook’s writings on Lev. 24:17-22 consider lex talionis literal or not.)

Well, Avalos has actually made it worse for himself because it is he—not Flannagan—who has misread Westbrook! Just to confirm this, I contacted Westbrook’s co-author Bruce Wells, who co-wrote the above-cited book, Everyday Law in Biblical Israel.  Here was Bruce Wells’ email reply to my query about what he and Westbrook meant in their book (pp. 78-79) about the meaning of the Leviticus 24 passage in connection with the rabbinic “reformed” view of monetary compensation:

First, it sounds as if the statement of talio in Leviticus is final and that there is no room for a monetary punishment in place of the physical punishment. It’s not that the Leviticus text explicitly excludes monetary punishment, but it makes no reference to it whatsoever. What we were trying to say is that, even though it sounds “unequivocal,” it’s not. There would have always been the allowing of a monetary punishment to take the place of the physical punishment. Second, we were trying to say that the rabbis’ interpretation was actually on the right track in this case (we say elsewhere, I think, that the rabbis were often not on the right track). The eye-for-eye principle meant that the appropriate amount of money for an eye should be paid and no more. Third, when we say that the penalties don’t seem to fit, we mean something like this. The Exodus text is about striking a pregnant woman and possibly injuring the fetus. The text goes on to say “tooth for tooth,” but teeth wouldn’t be involved in the event, regardless of whether one thinks that injury to the woman is paramount in the text or injury to the fetus…. we believe that compensation (a monetary fine/punishment) was always allowed to take the place of the literal, physical punishment.[5]

Now Matt Flannagan and I can put it to Hector Avalos: “Why not just admit you are wrong instead of making it worse for yourself?”

[1] Jerome T. Walsh, “You Shall Cut Off Her…Palm? A Reexamination of Deuteronomy 25:11-12,” Journal of Semitic Studies 49 (2004): 47-58.

[2] Raymond Westbrook, History of Ancient Near Eastern Law, Vol. 1 (Leiden: Brill, 2004), 75.

[3] Email from Bruce Wells, 7 July 2011.

[4] Wells’ final point is one with which I would concur and would include in my second edition of Is God a Moral Monster?!

[5] The email from Bruce Wells was from 6 July 2011.

Westbrook and Wells also write this about the talionic passages:

The three references in the Torah to talio all consist of a list of injuries and maimed body parts, with slight variations in detail. Curiously, in none of the contexts in which they occur do they quite seem to fit. In Exodus, the list follows a case involving the miscarriage of a fetus; in Leviticus, that of a blasphemer, in a sequence that begins with the punishment of homicide and compensation for killing a sheep. In Deuteronomy, it supposedly represents the punishment of a false accuser. The overall impression is of an ancient maxim, applied wherever “measure for measure” is to be the standard of justice, whether or not the case involves any of the physical injuries listed. Raymond Westbrook and Bruce Wells, Everyday Life in Biblical Israel (Louisville, KY: Westminster John Knox Press, 2009), 79.

36 Responses to “Deuteronomy 25:11-12, an Eye for an Eye, and Raymond Westbrook: A Reply to Hector Avalos”

  1. I’m actually teaching Deuteronomy 25 next Wednesday night and I have been wrestling with this difficult text for the past few days. The timing of this post is certainly providential. I’ll be printing it out so that I can read it and mark it up in coming days! Thanks so much!

    • Thanks, Mike. Glad it was helpful to you! Very few pastors and Bible teachers would dare to preach on such texts. Good for you!

  2. Dr. Hector Avalos July 9, 2011 at 7:43 am

    Dr. Copan,
    Even the latest response will not help redeem what you stated here:
    “Our interlocutor might ask: What about Scripture’s emphasis on lex talionis-an eye for an eye and a tooth for a tooth? Is this not a brutal retribution? First, an investigation of the Pentateuch’s lex talionis texts (Exod. 21:23-5; Lev. 24:17-22; Deut. 19:16-21) reveals that, except for capital punishment (“life for life”), these are not taken literally. None of the examples illustrating “an eye for an eye” calls for bodily mutilation, but rather just (monetary) compensation.”

    I had already explained that your position requires Dr. Westbrook to say that these laws are ALWAYS taken non-literally.

    Even Dr. Wells is not saying that. He is saying that SOMETIMES they may be taken as monetary and SOMETIMES they may be taken literally.

    Or have you changed your position from always non-literally to sometimes non-literally?

  3. Dr. Hector Avalos July 9, 2011 at 7:52 am

    I explained further here why any support from Westbrook that says that sometimes these laws are not taken literally will not really support your more sweeping and absolutist non-literal claim (“NONE”, etc.) about these laws:

  4. Dr. Avalos, I am not sure that you get to create an argument for an opponent and then demand its defense. I think that would make it a strawman. Further, this is a red herring (as well as moving of the goalpost), since you haven’t responded to the textual issue at hand (but rather changed the affirmation you made–or completely ignored it). In any case, which of the above-made points in Dr. Copan’s essay here do you disagree with, and why are they incorrect? Further, even if you disagree with Wells concerning the content of what he said, you surely must admit you cannot disagree that you misunderstood what was said.

    The bottom line is, unless and until you deal with the evidence, this is not looking so good for you. :)

  5. Is this a reasonable question:

    Do the scholars being referenced by Copan state that lex talionis laws were always interpreted as non-literal, or just sometimes?

    It seems they are saying that sometimes the lex talionis laws were interpreted non-literally, whereas Paul Copan seems to be saying that none of the biblical cases (except in capital punishment) of the lex talionis laws were interpreted non-literally.

    Even if this isn’t the main/first issue/point/accusation might someone venture to answer?

  6. This issue is if you claim the God of the Old Testament is a moral monster then the burden of proof is on you the accuser.

    A rational person could deny the above premise & still be either an Agnostic or Atheist in regards to the existence of said God.

    The default view of the Believer is God is not a moral monster.

    New Atheists are always shifting the burden of proof. Until one comes up with said proof Rational Atheists and Theist need not consider Avalos sour grapes here.

    God is not a moral monster. He is acquitted do to insufficient evidence. Regardless if He exists or not.

    Live with it.

  7. If your interpretation of this passage is correct (and I’m not saying that it is), isn’t this law just begging to be misunderstood?

  8. In reply to Mike B.:

    OT laws have been misunderstood often enough when not interpreted with due attention to the history of reception among the chosen people. It is sometimes possible to argue that the approach of the Sages to particulars of the Torah given to Moses was off base. But it always make sense to keep traditional interpretation in mind, not ignore it or dismiss it prematurely.

    In short, it may well be true, as Wells avers, that “compensation (a monetary fine/punishment) was always allowed to take the place of the literal, physical punishment.” That was the understanding of the Sages, who did not speculate so much as develop a living tradition which roots in the Torah of Moses.

  9. Jesus says “IF thy Right Eye offend thee pluck it out..etc”. I don’t know that there is anything in the text to indicate he wasn’t speaking literally. But historically the Christian Church has took him to mean it not literally but figuratively to mean take radical steps to root sin from your life.

    Origen was the exception that proved this rule. He had his testes removed so as to not fall into sins of the flesh. It one of the reasons (not likely the only one)none of the ancient Churches have canonized him a Saint.

  10. John Hobbins,
    You are right of course that a careful and critical consultation rabbinic interpretation is always a good idea. Having established that rule of thumb, I think that if you want to establish a vantage point from which to consider the original reception of these laws (the covenant code of Exodus and Deuteronomy especially), you’re much better off looking at Ancient Near Eastern law codes than you are rabbinic commentary, especially when there are obvious parallels that can readily shed light on the situation, such as in this case.

    Leaving the question of monetary compensation and the lex talionis aside for a moment, what do the sages have to say about the main text in question, Deut 25:11? That’s a real question. If you’ve looked into it, I’d like to know. I would be surprised, however, if it is anything like Paul’s explanation. Even if it were correct, his reworking of the text is not obvious in the Hebrew, it’s not obvious now, and it wouldn’t have been…

  11. To Paul Copan,

    I was using rhetoric in order to force you to respond. No, I didn’t accuse you of lying, and I think you know that. However, if Matthew Flannagan ever repeats the claim that he has shown the OTF is incoherent without dealing with my questions in that post, then I would accuse HIM of being a liar.

    Cheers, I hope all is well with you, and Matt.

  12. Might someone correct me if I an misunderstanding the issue.

    Paul Copan says the following “None of the examples illustrating “an eye for an eye” calls for bodily mutilation, but rather just (monetary) compensation.”

    Yet all the sources he cites say that they did. When he quotes Bruce Wells email to him (“we believe that compensation (a monetary fine/punishment) was always allowed to take the place of the literal, physical punishment”), doesn’t even Wells here indicate that literal carrying out of lex talionis was the understanding. Do saying monetary compensation was “always allowed” mean it was always followed – that seems a huge assumption. And if monetary compensation was “allowed”, on what criteria was it allowed?

  13. It is certainly true that Paul Copan asked my permission to use some of the text from my e-mails with him in this blog post. He has not quoted me out of context, but I think that I should clarify a couple of things, now that I have looked at the whole blog entry.

    First, I haven’t studied “kaph” in the Hebrew Bible (HB) for myself, but, if what Walsh says is true, I don’t see why his interpretation of Deut 25:11-12 can’t be a good candidate for the most satisfactory one.

    Second, even if Walsh is right, though, would this mean that the biblical authors were against physical mutilation as a punishment based on moral principles or divine revelation? I would say, “No.” The laws in HB (this applies less to cultic laws) share so much of the legal thinking evident across the ANE that it’s hard for me to imagine that the biblical authors were any less ready to see mutilation inflicted as a punishment than, say, Hammurabi or those who ran the Old Babylonian legal system.


  14. To finish my comments . . .

    Third – the three HB talio formulas. Westbrook believed in the revenge-and-ransom system. He coined the term. For every delict (a wrong by one person against another except for breach of contract), the perpetrator got a revenge-type punishment or a ransom-type punishment. Revenge-type punishments were physical; ransom-types were monetary. It was the victim or victim’s family who decided which type to impose, and the process was regulated by the courts so that neither type exceeded what was fair.

    So, things like the biblical talio formulas and laws 196ff. in Hammurabi should be read from this perspective. The extant records of ANE court cases indicate that monetary punishments were usually imposed, but the physical punishments (execution, cutting off a hand) could be revived and threatened, should the perpetrator seem reluctant to pay up.

    Westbrook believed that the biblical laws were based on this system just as much as those from other societies.

  15. So Dr. Copan says this:

    “None of the examples illustrating “an eye for an eye” calls for bodily mutilation, but rather just (monetary) compensation.”

    Avalos protests that this quantificational claim is absolute; only one example is needed to refute it.

    “There is an x such that x is a text that calls for bodily mutilation” contradicts “For every x, it is not the case that there is a text that calls for bodily mutilation.”

    But if what Dr. Wells is saying is right, then what is the case is a quantified disjunction:

    “For every x, if x is a (lex) text, then x either calls for bodily mutilation or monetary ransom.”


    “For every y, if y is doesn’t comply with the ransom, then y is subject to bodily mutilation.”

    Suppose that these are true. If Dr. Copan is making a modal claim that the texts do not necessarily call for bodily mutilation, then he is correct. If not, he only needs to revise this position this much and acknowledge the conditional about…

  16. …the conditional about monetary ransom. For the record, I don’t read Copan as making a strong modal claim. Why, pray tell, must we (as Avalos seems to think)?

  17. As described by Wells, Westbrook’s views undermine Paul Copan’s claim for the superiority (or less brutality) of biblical law in these cases.

  18. One more thing.

    I wouldn’t say that Copan’s use of Westbrook was illegitimate. Westbrook’s and Copan’s ultimate conclusions might diverge. But Westbrook argued (“Lex Talionis and Exodus 21:22-25,” Revue Biblique 93 [1986] 52-69) that the Exodus talio formula is about monetary compensation.

    In his blog article, Copan said, “We argue that the three talionic passages . . . do not require bodily mutilation but make provision for monetary compensation.” Westbrook would have completely agreed with that statement. What he would not have said, IMO, is that the biblical texts were intended to mean that physical mutilation was never allowed.

    But Westbrook’s own doctoral advisor at Yale, J. J. Finkelstein, argued (The Ox That Gored, American Philosophical Society 1981) that the Bible’s laws/values were superior to those of other ANE cultures. Westbrook disagreed with Finkelstein on this point, but I’m not sure that he ever said so explicitly in print.

  19. It seems even when Copan tries to defend his handling of Westbrook, by citing his communication with Wells, Wells feels the need to come in an clarify. Perhaps Copan should take this to heart, that some find what he says misleading (and, of course, not presume those misunderstanding him have any vested interest in any particular outcome).

    I feel like everyone is being academically diplomatic and pussyfooting around the issue.

    Is this true: the ANE codes of lex talionis, as seem in the Hebrew scriptures called for in-kind retaliatory mutilation for permanent injury amongst peers, and this was viewed as an acceptable punishment, AND there are biblical examples of allowing for monetary compensation.

  20. Thanks for the comments.

    A few points to make:

    First, I did not asked Bruce Wells to contribute to the blog post, but I’m grateful that he has offered some clarifying remarks.

    Second, Matt Flannagan has written more extensively on Westbrook and has appealed to him more than I have. And Matt’s views and mine aren’t identical but overlapping.

    In my writings, I have restricted my appeal to Westbrook (and Wells) on the priority of monetary compensation in the three aforementioned talionic passages. It seems that my appeal to Westbrook in this regard has been accurate. Westbrook would have disagreed, for instance, with my—and Jerome Walsh’s—take on Deut. 25:11-12, although he didn’t, so far as I know, interact with Walsh’s view.

    Fourth, in defending the “rabbinic” interpretation of Lev. 24:17-22 mentioned by Wells and Westbrook, I have shown that they side with the rabbinic view—as opposed to what the modern reader might see as “unequivocal.”

  21. Thanks Paul Copan for showing how you and Wells and Westbrook and Flannagan are not the unified front that earlier posts and comments seemed to “allow” for.

    Thanks for stating that your “appeal to Westbrook” was “restricted” (may that be read as “limited”).

    Perhaps you can answer this question which I repost with a minor edit – Is this true: the ANE codes of lex talionis as seen in the Hebrew scriptures called for in-kind retaliatory mutilation for permanent injury amongst peers, and this was viewed as an acceptable carrying-out of the Law, AND there are biblical examples of allowing for monetary compensation.

  22. Enenennx,

    Of the 10 or so law codes from the ANE & Bible, some call for retaliatory mutilation for permanent injury. Others list specific monetary values to be paid for such injuries. Then, there are examples of allowing monetary compensation all over the ANE, including in the Bible (Exod 21:30, Num 35:31).

    How to explain this? Revenge (retaliatory mutilation) and ransom (monetary compensation) were both always allowed, and the victim (or victim’s family) got to pick. The biblical texts that say “eye for eye,” etc., are probably referring primarily to ransom but come out of a legal system that allowed revenge (maybe the Lev text is more about revenge – I don’t know).

    So, basically, the answer to your question is YES, but with a few qualifications: IMO, some ANE codes, including the biblical ones, appear to call for in-kind retaliatory mutilation . . . and this was (probably) viewed as acceptable, AND there are examples from everywhere allowing for monetary compensation.

  23. Thanks for your insights, and your charitableness in answering my questions, Bruce Wells. Cheers.

  24. Dr. Hector Avalos July 12, 2011 at 11:12 am

    For the record, subsequent to his first comments here, I also asked Dr. Wells to offer some further clarifying remarks. I am glad he has done so, and I thank him for helping people understand the important work of Raymond Westbrook.

  25. “Restricted” needn’t mean “disingenuous,” as you suggest, Enenennx. I have given reasons why I don’t agree with Westbrook, say, on Deut. 25. I think Walsh’s perspective. One can cite a writer when addressing a certain text without agreeing on how he handles another text. As I’ve written elsewhere, I disagree at points with those who endorsed my book and whom I cited in the book. It’s a matter of making judgments on a case by case basis.

  26. User has been removed for violating the rules of the blog. Please read the rules before commenting.

  27. Paul, thank you for engaging this difficult passage and offering some interesting thoughts on how it might best be interpreted.

    I started to post a comment, but it got way too long. So, I turned it into a blog post of its own. I hope you don’t mind if I link to it here so people can see more of my argument:

    The short version is that I find Walsh’s interpretation interesting, but I’m still not convinced. I’d like to hear some response to Avalos’ argument that the qal/piel distinction is about singularity/plurality rather than the seminatic distinction Walsh emphasizes. And, I don’t find the parallel uses of qaph in Gen. and Song of Solomon as clear/convincing as Walsh does.

    I’m also not excited with how it sounds like Walsh has summarized my article in places. I think I engaged the text much more carefully than these comments suggest.

    But, thanks again for an interesting post…

  28. In case you’re wondering, that was supposed to be “semantic” in my comment above. I’m pretty sure that “seminatic” is not a real word, though it sounds like it could be. Maybe I’ll turn it into one.

  29. Hello again, Marc. I thought I’d post Jerome Walsh’s positive comments on your blog post here, just as I did at your blogsite. He sent them to me in an email earlier today:

    “A quick read leaves me very comfortable with Cortez’s statement. He recognizes that no position on the text is ‘clear’ or definitive, neither his own nor mine. I agree with that completely. It manifests a judiciousness and an intellectual honesty that I find congenial. His explanation for not citing my article in his is quite reasonable; in fact, that was what I assumed when you raised the issue. Two years is too short a time for someone to reflect on an article, write a response, and get it through the vetting process of scholarly publication in a journal like JBL. I think the most crucial difference in the way he and I weigh the evidence for the passage is our understanding of qatsats (qal vs piel).”

    So thanks again for entering into the discussion, Marc!

  30. I taught the passage last night, in our round-table open forum discussion group through the Pentateuch. Needless to say i was an interesting night! I brought a copy of this article to show the ongoing discussion on the meaning of “kaph” and someone asked if he could take it home with him.

    Perhaps it would be helpful to compare v11-12 with the preceding commandments regarding Levirate marriage: A man is expected to do the honourable thing to his sister-in-law (marry her and produce and heir) and if he dishonours her by refusing, then he is publicly shamed (sandal removed and spat upon).
    Then immediately afterwards we read of a woman dishonouring a man, and (if Walsh is correct) then she is publicly shamed.
    It makes an interesting couplet.

    Thanks Paul for labouring to produce this content on a seemingly obscure passage. God has used your work to bless a little church plant all the way out in Cork, Ireland!

  31. Paul, thanks for passing Walsh’s thoughts along. I’m glad to hear that he’s responded positively to my blog post, even though we still read the passage differently. That was very helpful. Thanks.

  32. Thanks for the very good and informative article, keep up good work, cheers!

  33. Just for the record, I think some on this cite are confusing two issues: Whether the lex tallonis passages demand a literal tallion and, whether literal tallion is compatible with a literal applicationt. That’s not the same thing; my position is that they demand proportionate punishment. Now a literal talion would be a proportionate punishment so that’s compatible ( but not required) with the command, a ransom payment is also a proportionate punishment.
    Moreover, I understand Paul’s claim to be that the laws do not demand literal tallion, he was not as far as I can tell, at least in the passage cited, claiming a literal tallion was incompatible with what it demands or that people would never apply it that way. The word “None” which Avalos cites qualified the claim that “none of the laws demanded literal punishment” not the claim that they were inconsistent with it. I actually pointed this out in my reply to Avalos so I am surprised he raises it again.
    Moreover, I am a little puzzled by Avalo’s comments in here when he states “I explained further here why any support from Westbrook that says that sometimes these laws are not taken literally will not really support your more sweeping and absolutist non-literal claim (“NONE”, etc.) about these laws” Avalos was criticising me, not Paul and I never said Westbrook supported the absolutist claim he refers to. In fact I explicitly denied this claim . I was criticising an article Avalos wrote called “Yahweh is a Moral Monster” and what Avalos argued in that article (p 215) was not the modest claim that the lex tallonis “could” be applied literally. In that article he contrasted the CH and biblical demand for a death penalty with Hittite law which replaced the death penalty with fines, and suggested this mean’t that both the CH and biblical laws were regressions from the practise in the Hittite code. He then suggested the claim the lex tallonis did not demand literal punishment was “an assertion without evidence”. That is not a position Westbrook would support so Avalos original claim, the one I was responding to, was not correct.


  1. Guest Post: Paul Copan Replies to Hector Avalos – Deuteronomy 25:11-12, an Eye for an Eye, and Raymond Westbrook | MandM - July 8, 2011

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