Civil Penalties and Leniency (Joshua 22:15-20)

Joshua 22

King James Version (KJV)

15 And they came unto the children of Reuben, and to the children of Gad, and to the half tribe of Manasseh, unto the land of Gilead, and they spake with them, saying,

16 Thus saith the whole congregation of the Lord, What trespass is this that ye have committed against the God of Israel, to turn away this day from following the Lord, in that ye have builded you an altar, that ye might rebel this day against the Lord?

17 Is the iniquity of Peor too little for us, from which we are not cleansed until this day, although there was a plague in the congregation of the Lord,

18 But that ye must turn away this day from following the Lord? and it will be, seeing ye rebel to day against the Lord, that to morrow he will be wroth with the whole congregation of Israel.

19 Notwithstanding, if the land of your possession be unclean, then pass ye over unto the land of the possession of the Lord, wherein the Lord's tabernacle dwelleth, and take possession among us: but rebel not against the Lord, nor rebel against us, in building you an altar beside the altar of the Lord our God.

20 Did not Achan the son of Zerah commit a trespass in the accursed thing, and wrath fell on all the congregation of Israel? and that man perished not alone in his iniquity.

Comments:

What is interesting about this situation is that the Israelites are willing to forgo putting their brethren to the sword if they repent of what is perceived to be rebellion against God (verse 19). This could have implications for civil punishments in general. Henry Bullinger includes this text while arguing for the flexiblity of at least some penalties:

Moreover, godly and wise magistrates have many times pardoned unwitting offenders, whom they saw ready to repent upon giving of warning. The Lord in the gospel biddeth us admonish a sinner; then, if he repent, to pardon his fault; but if he rejects a fair warning once given him, then to punish him so much the sharper. [Matt. 18:15-17] And Joshu [Joshua], before he made open war to be proclaimed upon the children of Reuben, did first by embassage command them to dig down the altar, which they seemed to have made contrary to the law of the Lord. [Josh. 22.] ... Moreover, Josias did not utterly kill all them that were wrapped in error and idolatry, but those especially that were incurable, and would not recant. The magistrate therefore must wisely moderate the matter, and be very circumspect in punishing offenders.[1] 

While we don't find Bullinger's argument from Matthew 18 compelling—since it is an instruction for the church, and not the state—we see his overall logic in pardoning unwitting offenders. 

After all, Scripture itself makes a distinction between murder and accidental manslaughter. While murderers must be punished with death, a lesser punishment is required of those who commit accidental manslaughter (in Israel, it was confinement to a city of refuge until the death of the high priest). 

And we see no reason not to extend this principle of leniency to other crimes. A somewhat parallel situation to physical murder would be to promote damnable heresy, which is attempted spiritual murder. This also warrants the death penalty.[2] But what about a case where one accidentally promotes damnable heresy? For instance, one may unwittingly promote damnable heresy by using a bad choice of words in describing a particular doctrine. These words may not have been used had this person had given them more careful thought.

Another example of unwittingly committing a crime is when one purchases stolen goods in good faith that they were not stolen. Or, when a man marries a woman whom he believes to be single, but is actually married to someone else. In these and other situations where a crime is committed unwittingly, leniency seems to be the best course. 

Regarding Joshua 22, however, it seems likely that the crime that is mistakenly believed to have occurred was not committed unwittingly, but knowingly. Since the Israelites take for granted that setting up an altar for sacrificing to God was wrong other than at a place of God's choosing (per Deuteronomy 12:5-7), then they might have thought that it was likewise taken for granted by their brethren—the children of Reuben, the children of Gad, and the half tribe of Manasseh.

And yet, despite their readiness to put their brethren to the sword for this, they were willing to offer leniency upon repentance. 

If this example of offering leniency in the case of repentance is meant to be a pattern to follow in civil matters, then we must consider to what extent. It certainly cannot be applied in all situations—at least not in the case of murder:

31 Moreover ye shall take no satisfaction for the life of a murderer, which is guilty of death: but he shall be surely put to death. (Numbers 35) 

33 So ye shall not pollute the land wherein ye are: for blood it defileth the land: and the land cannot be cleansed of the blood that is shed therein, but by the blood of him that shed it.34 Defile not therefore the land which ye shall inhabit, wherein I dwell: for I the Lord dwell among the children of Israel. (Numbers 35) 

There is much in Scripture to consider when working out the idea of offering leniency for repentance. This is not a simple matter, and different points of view should be consulted. 

For a perspective in support of the flexibility of capital punishments (save murder), see pages 16-27 of Is the Death Penalty Just? by Phillip G. Kayser. For a perspective against the flexibity of capital punishments, see pages 251-254 and 258-261 of No Other Standard: Theonomy and its Critics by Greg L. Bahnsen.

Notes

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[1] Henry Bullinger, "The Second Decade: The Sixth Precept in the Ten Commandments," in The Decades of Henry Bullinger: The First and Second Decades, ed. Thomas Harding, trans. H. I. (Cambridge: The University Press, 1849), 362.

[2] According to Deuteronomy 13, enticing others to serve false gods warrants the death penalty because it promotes rebellion against God: "And thou shalt stone him with stones, that he die; because he hath sought to thrust thee away from the Lord thy God, which brought thee out of the land of Egypt, from the house of bondage," verse 10. While not all damnable heresies directly promote serving false gods (such as denying justification by faith alone), they too promote rebellion against God. As such, it seems that promoting damnable heresies should likewise be punished with death.  

   

Loyalty or Death (Joshua 1:16-18)

Joshua 1

King James Version (KJV)

16 And they answered Joshua, saying, All that thou commandest us we will do, and whithersoever thou sendest us, we will go.

17 According as we hearkened unto Moses in all things, so will we hearken unto thee: only the Lord thy God be with thee, as he was with Moses.

18 Whosoever he be that doth rebel against thy commandment, and will not hearken unto thy words in all that thou commandest him, he shall be put to death: only be strong and of a good courage.

Comments:

The people express their loyalty to Joshua and advocate the death penalty for disloyalty. This at least concerns military matters. John Gill writes:

[T]his part of military discipline they agree to, and hereby declare their entire submission to him as their general; some understand this as spoken by all Israel, and of their promise of obedience to Joshua, as their governor, in all things:

And Matthew Henry writes:

But they were so far from having any suspicion of Joshua’s deviating from the divine rule that there needed not such a proviso.III. They pass an act to make it death for any Israelite to disobey Joshua’s orders, or rebel against his commandment, v. 18. Perhaps if such a law had been made in Moses’s time it might have prevented many of the rebellions that were formed against him; for most men fear the sword of the magistrate more than the justice of God. Yet there was a special reason for the making of this law now that they were entering upon the wars of Canaan; for in times of war the severity of military discipline is more necessary than at other times. Some think that in this statute they had an eye to that law concerning the prophet God would raise up like unto Moses, which they think, though it refer chiefly to Christ, yet takes in Joshua by the way as a type of him, that whosoever would not hearken to him should be cut off from his people. Deu. 18:19, I will require it of him. IV. They animate him to go on with cheerfulness in the work to which God had called him; and, in desiring that he would be strong and of a good courage, they did in effect promise him that they would do all they could, by an exact, bold, and cheerful observance of all his orders, to encourage him. It very much heartens those that lead in a good work to see those that follow follow with a good will. Joshua, though of approved valour, did not take it as an affront, but as a great kindness, for the people to bid him be strong and of a good courage.

     

Judah Demands the Death of Tamar for Adultery (Genesis 38:24-26)

Genesis 38

King James Version (KJV)

24 And it came to pass about three months after, that it was told Judah, saying, Tamar thy daughter in law hath played the harlot; and also, behold, she is with child by whoredom. And Judah said, Bring her forth, and let her be burnt.

25 When she was brought forth, she sent to her father in law, saying, By the man, whose these are, am I with child: and she said, Discern, I pray thee, whose are these, the signet, and bracelets, and staff.

26 And Judah acknowledged them, and said, She hath been more righteous than I; because that I gave her not to Shelah my son. And he knew her again no more.

Comments:

Some may suggest that verse 38 implies knowledge on the part of Judah that God required the death penalty for adultery prior to the Mosaic legislation. Not that we disagree that the death penalty for adultery is binding on all nations, but we recommend caution when referring to this text on the matter. 

First, does Judah here really know that adultery should be capitally punished, or does he demand the death penalty out of anger? Or for another reason?

Second, Scripture does not permit the accused to be punished without a fair trial, as the accused must be proven guilty on the testimony of two or three reliable witnesses (Deuteronomy 19:15). Tamar would have to be caught in the act. In a trial, simply being pregnant is not enough evidence of guilt. It is always possible that the woman was raped, or even that her husband—in a malicious desire to rid himself of his wife—blamed her pregnancy on adultery when he  himself knowingly made her pregnant. 

Third, when guilt is proven, the woman should be examined to see if she is with child. If she is, her punishment must be postponed until the child is born. To kill an unborn child while punishing the mother violates Exodus 21:22-25, as well as the principle that "The fathers shall not be put to death for the children, neither shall the children be put to death for the fathers: every man shall be put to death for his own sin" (Deuteronomy 24:16).

Therefore, if Judah was aware of the death penalty for adultery, he was derelict by not insisting on a trial, and in an unwillingness to spare the unborn child.

John Gill, writing about Judah's demand that Tamar be burned, offers some helpful commentary, and also offers a perspective somewhat different than ours:  

and Judah said, bring her forth, and let her be burnt: not that Judah can be thought to be a civil magistrate in a Canaanitish and Heathen city where he sojourned, and as such pronounced this sentence on her at once, or even had the power of life and death in his own family; and besides Tamar was not in his, but in her own father's house: but the sense seems to be, that as he was a man of credit and esteem in the neighbourhood, and had an influence and interest in it; he moved that she might be brought out of her father's house, and take her trial before the civil magistrates, and be committed to prison until she was delivered, for it would have been barbarous, and contrary to the law and light of nature, to have burnt her when quick with child, and then indeed to be burnt to death, according to the usage of this country; and as we find adultery in later times was punished with this kind of death, even among Heathens, (Jeremiah 29:22 Jeremiah 29:23 ) ; as it was in Egypt in the times of Sesostris the second; so Salaethus, prince of Croton in Italy, made a law that adulterers should be burnt alive, as Lucian relates; as did also Macrinus the emperor, that those that were guilty of adultery should be burnt alive together, their bodies joined to each other: and this criminal action of Tamar was judged adultery, because she was, of right, and according to a custom or law then in use, the wife of Shelah: the Targum of Jonathan intimates, she was judged deserving of this death, because the daughter of a priest; the same law obtaining among the patriarchs as did in the times of Moses, (Leviticus 21:9 ) ; and some, as Jarchi relates, say she was the daughter of Shem, the same with Melchizedek, priest of the most high God: one reason why Judah was in haste to have the sentence pronounced on her, and as soon as could be executed, was not only the disgrace she brought upon his family, but that she might be dispatched, and so his son Shelah freed from being obliged to marry her, which he did not care he should, and was glad of this opportunity to prevent it.

The Death Penalty required for Murder (Genesis 9:5-6)

Genesis 9:5-6

King James Version (KJV)

⁵ And surely your blood of your lives will I require; at the hand of every beast will I require it, and at the hand of man; at the hand of every man's brother will I require the life of man.

⁶ Whoso sheddeth man's blood, by man shall his blood be shed: for in the image of God made he man.

Thoughts:

"When God requires the life of a man at the hand of him that took it away unjustly, the murderer cannot render that, and therefore must render his own in lieu of it, which is the only way left of making restitution." - Matthew Henry