What Crimes Should Civil Magistrates Punish?
I continue my evaluation of Joel McDurmon’s recently published book on theonomy called The Bounds of Love: An Introduction to God’s Law of Liberty. One major question that McDurmon takes up in his book is the role of the civil magistrate in punishing crimes. Traditionally theonomists have believed that the criminal code revealed in the Law of Moses is essentially continuous for today. When St. Paul commends us to the authority of the civil magistrate as a terror to evil who does not bear the sword in vain (Rom. 13:1-7), this presupposes a fixed and objective standard of justice to which all magistrates are bound. No one is given authority to call good evil and evil good (Is. 5:20), thus as St. Augustine famously stated, Lex iniusta non est lex: an unjust law is no law at all.1 Our knowledge of this standard of justice can come through what is sometimes called the light of nature, since everyone has a moral conscience that allows us to understand right from wrong. The Apostle Paul states that although the Gentiles did not have the revealed Law of God given to them, their conscience bore witness of the Law’s requirements (Rom. 2:14-15).
Matthew Henry comments on the natural law which can be known through the light of nature: “They did by nature the things contained in the law. They had a sense of justice and equity, honour and purity, love and charity; the light of nature taught obedience to parents, pity to the miserable, conservation of public peace and order, forbade murder, stealing, lying, perjury, etc. Thus they were a law unto themselves.”2
Because man is made in the image and likeness of God, everyone has some implicit understanding of morality which is why even those who have never read a Bible are still accountable before God for their decisions. This does not mean that our reason and conscience are always congruent with right and wrong, because sin clouds our judgment and obscures the truth in self-deception (Rom. 1:18; 1 Cor. 2:14; 1 Tim. 4:2). Thomas Aquinas explains that it was necessary for God to reveal the divine Law “because, on account of the uncertainty of human judgment, especially on contingent and particular matters, different people form different judgments on human acts; whence also different and contrary laws result. In order, therefore, that man may know without any doubt what he ought to do and what he ought to avoid, it was necessary for man to be directed in his proper acts by a law given by God, for it is certain that such a law cannot err.”3
As I stated earlier, I believe that everything that the Law considers to be criminal, including First Table offenses and sexual crimes, ought to be crimes punished by the state today. We are to obey civil magistrates only insofar as their judgments are in agreement with God’s Law. Magistrates who blatantly flaunt God’s Law are tyrants, and can and should be openly resisted, just as they were by the ancient Israelites.4 I believe that McDurmon would agree with what I’ve stated above; the point of contention is how these revealed precepts, and in particular civil penalties, ought to be applied today. McDurmon believes that civil magistrates are no longer required or authorized to enforce punishments against First Table offenses or against sexual sins. This position is certainly not congruous with the beliefs of recent theonomists. Let’s examine McDurmon’s defense of his position.
McDurmon on the Nature of First Table and Sexual Sins in the Mosaic Law
McDurmon begins by discussing what he calls “the cherem principle.” Cherem is a Hebrew word which can mean “to utterly destroy” or “to devote to destruction.”5 This word is used in conjunction with several instances in which an offender is to receive the death penalty for his crime. McDurmon argues that this principle is unique to the Old Covenant prior to the coming of Christ:
Cherem is peculiar to the Old Testament administration because it functioned only in the context where God’s presence was in the physical temple/tabernacle, in the altar fire, the land itself was holy and was an agent of sanctions, and the inheritance of God’s covenant promises was through blood descent and external possession of the Holy Land. As we have seen, all of these realities have been drastically altered by the New Testament economy. The civil penalties based upon the cherem principle must be considered in this light as well.6
This word is often used for the destruction of God’s enemies through the Israelites, such as the Canaanites and Amalekites. McDurmon ties the act of stoning to the principle of cherem. The offenses that are punished by stoning are listed as Molech worship, including child sacrifice (Lev. 20:2), the worship of idols (Deut. 13:6-11, 17:5), the usage of mediums (Lev. 20:27), blasphemy (Lev. 24:10-16, 23), Sabbath-breaking (Num. 15:32-36), rebellious sons (Deut. 21:18-21), and engaged daughters committing fornication (Deut. 22:20-21). Likewise death by stoning was enforced for those who touched Mt. Sinai while God gave the Ten Commandments to Moses (Ex. 19:12-13) and for Achan for stealing goods that were to be destroyed from Jericho (Josh. 7:25). McDurmon makes the following assertions about the cherem principle and death by stoning: the civil magistrate was specially commissioned by God to carry out these stoning penalties in Israel because of God’s presence in the land, and this is limited to First Table offenses.
McDurmon idiosyncratically includes the Fifth Commandment as part of the First Table, writing: “While not traditionally considered so, the Fifth Commandment is part of the First Table. It is a general principle but was also directly tied to inheritance in the land.”7 McDurmon believes that as God’s unique presence in Israel has ended with the conclusion of Christ’s ministry, the cherem principle is framed differently in the New Testament by focusing on eschatological judgment when Christ returns rather than a temporal judgment enforced by a civil magistrate. On the basis of these assertions McDurmon concludes that the civil magistrate is no longer authorized to enforce civil punishments against these cherem offenses.
Naturally, there is much to unpack in evaluating McDurmon’s assertions. McDurmon certainly does make some valid observations. There is a sense in which God dealt with certain transgressions in a more immediate way than He does today. In particular, the destruction of the Canaanites and Amalekites was peculiar to the ancient Israelites because these commands were not rooted in general principles. The same would apply to the destruction of Achan for appropriating the goods of Jericho to himself and the man stoned for gathering sticks on the Sabbath in direct violation of God’s specific and direct command (Num. 15:32-36). We can therefore conclude that there is at least some degree of discontinuity since the ministry of Christ regarding the principle of utter destruction (cherem) as it is applied in various places in the Old Testament. However, there are many problems with McDurmon’s specific contentions.
First, there is no basis for McDurmon’s claim that cherem stoning was only used for First Table offenses, nor is there any basis for McDurmon’s claim that the Fifth Commandment to honor our fathers and mothers belongs in the First as opposed to the Second Table. Traditionally the distinction between the two tables of the commandments is that the First Table represents our duties specifically to God, and the Second Table represents our duties towards other men.8 For this reason the Fifth Commandment, which commands that we honor our fathers and mothers, is traditionally associated with the Second Table of the Ten Commandments. McDurmon seeks to artificially link offenses against the Fifth Commandment with offenses against the First Table because of his belief that offenses against the First Table are no longer to be punished by the civil magistrate. McDurmon’s explanation is that the Fifth Commandment “was also directly tied to the inheritance in the land.” McDurmon approaches sex crimes in much the same manner. McDurmon asserts that laws punishing adultery, sodomy, and bestiality likewise fall under the cherem principle and are thus no longer in force today. McDurmon insists, “It is easy to conclude that all such sexual sins resulted in the confusion or defilement of the seed, or the defilement of inheritances, and were thus assigned the death penalty on such grounds—not merely on the grounds of their nature as sexual sins. We can tell in each of these cases that the death penalty was invoked not because of the nature of the sin or crime itself, but because it occurred in overlap with these particular sacred boundaries in the Old Covenant administration.”9
Of course this is the very point of contention. Traditionally theonomists have believed that certain sexual sins are criminal because of the nature of the sin itself, not because of the unique circumstances of ancient Israel. The criminal nature of these actions is revealed through Moses and to Israel, but the truth of this revelation is general, rather than particular to the people of Israel. How does McDurmon argue his position that the criminal nature of the sex crimes recorded in the Law is strictly tied to the defilement of seed, and this particular type of defilement was a concern only for the Israelites? McDurmon argues that there are many sexual sins not punished by the Law, and that they are not punished because they are not tied to the concept of seed-defilement. One example that McDurmon considers is adultery: “Consider, for example, the references to adultery just mentioned. One case involves a married man sleeping with a married woman (Lev. 20:10). The other involves any man sleeping with a married woman (Deut. 22:22). Each could receive the death penalty. But what of a case between a married man and an unmarried woman? There is no mention of it.” I will critique this argument in a moment.
McDurmon believes that accommodations made in the Mosaic Law to practices such as polygamy, divorce, and Levirate marriage are evidence that “in that Old Testament administration, the seed laws and inheritance laws superseded sex and marriage law in terms of the importance to the purpose of that system.” McDurmon cites Galatians 3:19 which states that the Law was given “because of transgressions” and concludes, “The fact that only certain cases of adultery which violated those laws received the death penalty indicates that the reason was not because of the adultery itself, but because of the other violations. Further, the fact that the ‘adultery’ of Polygamy or Levirate marriage was not punished by death shows the same principle.” Interestingly enough, McDurmon concludes this section on sexual sins by stating that there are still some sanctions that can be imposed. McDurmon argues that divorce could “possibly have some economic ramifications that would be enforceable by the civil government” and that excommunication by the church would also be a permissible sanction against those who commit sexual transgressions. McDurmon even acknowledges that the civil government could in “flagrant cases” punish offenders with “loss of citizenship or banishment.”
Critiquing McDurmon’s Arguments Regarding First Table and Sexual Offenses
Much of what McDurmon states about the discontinuity of punishments for First Table and sexual offenses since the coming of Christ is laden with problems. First I will address McDurmon’s contention that First Table offenses are no longer in force today because Christ has abolished the cherem principle of total destruction, which McDurmon links to stoning. While I find McDurmon’s discussion of stoning as it pertains to total destruction interesting, I also believe that it is overgeneralized. I don’t agree with the hard-and-fast connection of stoning to utter destruction or expulsion, since many of the people driven out of the land of Israel were not stoned to death. Furthermore, the command given by God to the Israelites to drive the Canaanites out of the land of Israel was obviously specific to Israel’s unique circumstances. I do not believe that same can be said in general of the precepts pertaining to the First Table or to sexual offenses. McDurmon attempts to claim that civil punishments for First Table and sexual offenses are tied to God’s unique presence in Israel prior to the coming of Christ. Sins against the First Table are said to defile the land, and particular sexual sins are claimed to be an act of blasphemy by hindering (or at least attempting to hinder) the coming of the promised seed of the Messiah.
There are also issues with McDurmon’s appeal to land-defilement as unique to the ancient Israelites. McDurmon repeatedly cites examples in which First Table and sexual offenses are said to defile the land, and McDurmon believes that the punishments prescribed by the Mosaic Law for First Table offenses are specifically connected to God’s unique presence among the ancient Israelites. The first problem with this approach is that McDurmon fails to mention that the Law also teaches that the blood of murder victims defiles the land (Num. 35:33), and the very next verse (v. 34) ties this to God’s presence among the Israelites. Based upon McDurmon’s argument that God’s unique presence among the ancient Israelites was the sole basis for the Mosaic punishments for First Table and sexual offenses, we could just as easily conclude that the punishment for murder itself is tied to the land of ancient Israel and thus is no longer in force. This would contradict what McDurmon says in the next chapter of his book about the Law as the abiding judicial standard in which he states that murder, along with kidnapping and rape, must receive the death penalty, anything less being unjust.10 The second problem with McDurmon’s argument is that the criminal nature of the crimes listed in Leviticus 20 is not specific to the Israelites, since the ejection of the Canaanites from the land is tied to their having committed the very same acts listed in Leviticus 20 (see 20:23).
McDurmon’s attempt to tether the Fifth Commandment to the First Table is also unconvincing. McDurmon acknowledges that the Fifth Commandment is generally abiding in that we are called to honor our fathers and mothers. What I find problematic is McDurmon’s suggestion that punishments for sexual sins are linked to the Fifth Commandment since they are often said to defile the land, and the promise of the Fifth Commandment was specific to the land that God had given to Israel. McDurmon argues that this means that since God’s unique presence among the Israelites has ceased, then the punishment for sexual sins by the magistrate has also expired.
This explanation fails when we consider that the Apostle Paul also links the Fifth Commandment to land inheritance in Ephesians 6:2-3, as McDurmon himself acknowledges on p. 49. Even though the specific land given to Israel no longer retains its covenantal significance, land inheritance is still tied to the Fifth Commandment because God owns the whole earth (Ps. 24:1; cf. Ex. 9:29; Deut. 10:14; 1 Cor. 10:26, 28), and He has divided the earth among the nations for their inheritance as a means of taking dominion over their territory (Deut. 32:8-9; Acts 17:26-27). I agree that God’s unique presence in the land of Israel expired with the New Covenant, but the promise of national prosperity in the land is not specific to Israel. While all the righteous collectively inherit the earth as the seed of Abraham, they yet do so according to and within their own national boundaries.
There is no compelling basis for McDurmon’s claim that sexual sins are linked to the Fifth Commandment (at least directly, as opposed to the Seventh Commandment), or that the punishment for sexual sins is directly linked to God’s unique presence in ancient Israel. McDurmon claims that only certain sexual sins were punished because they are directly related to an attempt to hinder the promised seed of the Messiah. McDurmon argues that some forms of adultery are punished while other cases of adultery are ignored as concerning the civil magistrate. For example, McDurmon argues that the Law punishes adultery between a married man and married woman (Lev. 20:10), and any man with a married woman (Deut. 22:22), but the Law ignores adultery between a married man and an unmarried woman. There are of course several problems with this argument. First, there is no evidence that Lev. 20:10 and Deut. 22:22 are different laws applying to men in different situations, because there is no evidence that Lev. 20:10 applies only to married men as McDurmon alleges. It is clear that both Lev. 20:10 and Deut. 22:22 are simply reiterations of the same principle, that being the severity of adultery.
The Law does address the case of a man, whether married or unmarried, fornicating with an unmarried woman. In the event that the woman was betrothed, she was considered to have been as good as married, and both the offending man and woman would be put to death if the woman did nothing to stop the man’s advances (Deut. 22:23-24). This is why the Law requires that this act occurred in a city, because the woman presumably would have had the opportunity to cry for help and be delivered if that was her desire. If this occurred in the country or field, a woman would not have been punished, as her innocence was to be presumed because there was no one to deliver her (Deut. 22:25-27).
In the event that an affair occurs between a man and a woman who are not married or betrothed, then the man was fined and was required to marry the woman he had seduced, and was forbidden to divorce her as long as she lived. In this event a father could refuse his consent to such a marriage, in which case the man would be required to pay the price of the girl’s dowry (Ex. 22:16-17; cf. Deut. 22:28-29). These laws would apply whether the man was married or not, but many fathers may certainly have refused to consent to their daughters marrying a man who was himself already married. Clearly the Law of Moses teaches that both fornication and adultery not merely are sinful, but also have social ramifications as well that ought to be enforced by the magistrate. Adultery is even more severe than fornication, because it breaks the solemn covenant of marriage.
McDurmon argues that only sexual sins which potentially hindered the coming seed of the Messiah were punished. Recall McDurmon’s argument that “only certain cases of adultery received the death penalty.” This is said to be “because of other violations” rather than as a condemnation of “adultery itself.” McDurmon suggests polygamy and levirate marriage are examples of adultery that the Mosaic Law leaves unpunished. He also cites Gal. 3:19 to the effect the Law was given “because of transgressions” and even makes the profound suggestion that “in that Old Testament administration, the seed laws and inheritance laws superseded sex and marriage law in terms of the importance to the purpose of that system.” There are numerous problems with McDurmon’s assertions. First, there is no biblical basis for McDurmon arbitrarily labeling polygamy (the practice of a man having more than one wife) or Levirate marriage as adultery. The wives of the polygamous patriarchs of the Bible are considered actual, legitimate wives, and this could not be the case if this relationship was intrinsically adulterous in and of itself.
The same applies for the law of levirate marriage. Marrying a sister-in-law after the death of a childless brother is not adultery at all, since the brother in question is no longer living. If the brother was living then this would be considered adultery, and it is condemned by the Law as such (Lev. 18:16, 20:21; cf. Matt. 14:3-4; Mk. 6:18). McDurmon calling levirate marriage adultery is even worse than polygamy, because it was actually commanded by God as a duty for a man to produce an heir for his deceased childless brother (Deut. 25:5-10). There is even a penalty assigned to a man who failed in his duty to raise up seed to his brother, albeit involving only mild humiliation. Nevertheless, by McDurmon’s logic God not only allows a practice that he considers to be objectively sinful (polygamy), but also commanded the Israelites to follow a practice that McDurmon considers adulterous (levirate marriage).
Secondly, it is true that some of the provisions of the Law make accommodations for circumstances arising from sin. The law of divorce (Deut. 24:1-4) is certainly one example of this, and we could add other examples, such as the taking of foreign wives among the captives of one’s enemies (Deut. 21:10-14), and polygamy as well (Deut. 21:15-17).11 It is crucial to understand that while the Law makes certain accommodations to certain practices that arise as a result of sin; these accommodations are not in themselves sinful. Therefore McDurmon has no justification for calling polygamy or levirate marriage adulterous. I also don’t believe that Jesus, in the Sermon on the Mount (Matt. 5:31-32), was introducing a new standard for divorce, but rather correcting the misapplication of “uncleanness” (Deut. 24:1) that served as grounds for divorce. McDurmon points out that God’s intention was never for divorce, and I would simply add that this was also explicitly stated in Malachi 2:16 prior to the coming of Christ.
Finally, McDurmon’s argument that sodomy and bestiality were punished in ancient Israel because they are supposedly tied to an attempt to hinder the promised seed of the Messiah is nothing more than pure conjecture. To commit sodomy or bestiality, per McDurmon, was to attempt to prevent the coming of the promised seed. McDurmon writes, “To engage in sodomy was therefore to deny Christ, and not only to deny him, but symbolically to attempt to prevent His coming. To engage in sodomy was, therefore, not just a sexual sin but an act of blasphemy.”12 If sodomy or bestiality were punished solely based upon concerns for producing a promised seed, where is this ever stated? By this logic would it not be equally severe to simply remain unmarried throughout one’s life? Besides, McDurmon has already pointed out that the promise of the coming King and Redeemer was given to the tribe of Judah in Genesis 49:10 (p. 45). Why wasn’t sodomy punished for the tribe of Judah alone, since it was to this tribe that this specific promise is made? McDurmon’s speculative rationale for the punishment of sodomy and bestiality encounters the same difficulties as his earlier arguments regarding the regulation of inheritance. If the promised seed of the Messiah was the only concern, why was this applied to all twelve tribes rather than to the one specific tribe that would bring forth the Messiah?
The fundamental flaw in McDurmon’s argumentation regarding sexual sins and First Table offenses is that he fails to understand that the punishments for these crimes are derived from the intrinsic nature of the acts themselves. First Table sins such as blasphemy and idolatry encourage people to turn away from God and embrace a whole host of dangerous and sinful behaviors. Sexual sins, as well as abortion, can often be linked to some form of idolatry. Adultery, sodomy, and bestiality are all very destructive behaviors that harm society as a whole, particularly as they become accepted practices. Adultery breaks the marriage covenant and often leads to dissolution of the family, as it often leads to divorce.
The harmful impact of divorce upon society in general is well-documented. Society therefore has a vested interest in proscribing adultery and limiting divorce to cases that meet the biblical standard. Likewise, sodomy and bestiality are obviously harmful to society in general. Christians have always believed that righteous civil governors should prohibit these activities, and even if McDurmon’s arguments are conceded, there is no reason to conclude that just civil governments cannot punish these sins. At best, McDurmon’s arguments would lead us to the conclusion that the civil magistrate is no longer required to execute offenders for First Table or sexual offenses, but would not be prohibited from doing so or from assigning a lesser penalty. Even McDurmon himself concedes that in certain “flagrant” cases the civil government may punish the offender with “loss of citizenship or banishment,” but he offers no further clarification on when he believes that this would be appropriate, or where this is to be regulated by Scripture.
What is particularly interesting is that McDurmon used the example of Thomas Granger in his opening statement of his debate with J.D. Hall. Granger received the death penalty for bestiality in Massachusetts Bay Colony, and McDurmon asked Hall if Granger received a just punishment, challenging Hall to provide a standard whereby this punishment was unjust. Hall ultimately answered that the punishment was just because it was administered by a legitimate civil government against a grave sin. Now McDurmon’s position, that a civil magistrate could not deliver such a punishment, is actually less theonomic than the position taken by Hall in a debate over the truth of theonomy! Indeed this very point was recognized by J.D. Hall himself when he posted on his Facebook page: “After reading Joel McDurmon’s new primer on theonomy, in which he recants his belief that the civil magistrate should enforce the first table of the Law or punish by death certain laws such as idolatry, fornication, sodomy or bestiality, I can unequivocally rejoice that he has repented of his position and is no longer, in any meaningful way a theonomist. This is wonderful news.”13
Hall is correct. McDurmon cannot be considered a theonomist in any meaningful way. McDurmon’s position is easily contrasted with traditional theonomic luminaries such as R.J. Rushdoony or Greg Bahnsen.14 Bahnsen was certainly correct when he argued,
To make homosexuality a civil right would open a Pandora’s Box of sexual immorality and thereby destroy the integrity of the family. We can reasonably expect that these effects would foster in turn a degraded view of man and his sexual nature (which in itself has significant implications for how people relate to each other in society). It would erode the familial foundation of the social structure, with its indispensable, intermediate disciplinary effect. People who are allowed to be unfaithful and perverse in sexual matters will hardly prove to be fit trustees of the rights of others — that is, to be faithful and upright regarding other moral standards or commitments.15
The same could be said of the other offenses that McDurmon believes that the civil magistrate no longer has the authority to punish. Sins against the First Table such as blasphemy and idolatry, as well as sexual sins such as adultery, sodomy, and bestiality, are serious issues that have profound implications for society beyond just the individuals involved in the act itself. Thus far Joel McDurmon has argued that the Law since the coming of Christ is no longer concerned with bloodlines or inheritance, because these were simply established for the purpose of preserving the promised bloodline of the Messiah. McDurmon has also argued that all First Table offenses and sexual sins punishable in the Mosaic Law are no longer to be punished by the civil magistrate today, and this is said to be because such punishments were tied to land-defilement. McDurmon’s various arguments in favor of discontinuity are ultimately unconvincing.
These sins are to be punished by the civil magistrate precisely because they are so destructive. The Apostle Paul insists that the civil magistrate is ordained by God and does not bear the sword in vain but must use it to execute vengeance upon evil (Rom. 13:4), and there must clearly be an objective standard of justice in addition to a standard of right and wrong that Paul has in mind. Furthermore, Paul insists that the Law is for the ungodly and sinners, and in his list alongside of offenses that McDurmon still considers to be punishable, such as kidnapping and murder, are mentioned offenses such as adultery and sodomy without qualification or distinction (1 Tim. 1:9-10). This of course suggests that Paul did not perceive the artificial distinction that McDurmon has introduced in his book. Given the extent of the discontinuity that McDurmon perceives, it is a wonder that he still believes that the Law is still the abiding judicial standard for today, but that is precisely what McDurmon argues going forward.
McDurmon has had much to say about how the Law does not apply today. Finally, we are going to see how McDurmon believes it does apply. Next I plan on critiquing what McDurmon has to say about how the Law as it ought to be applied in our society today.
Read Part 4
- Augustine, De Gratia et Libero Arbitrio i. 5, cited in Thomas Aquinas, Summa Theologica II:I, Question 96: The Power of Human Law, Article 4: Whether human law binds a man in conscience? ↩
- Matthew Henry, Commentary on the Whole Bible, Romans 2:1-16. Italics in original. ↩
- Thomas Aquinas, Summa Theologica, II:I, Question 91: The Various Kinds of Law, Article 4: Whether there was any need for a Divine Law? ↩
- For more information on lawful resistance to tyrannical rulers, see Vindiciae Contra Tyrannos, Part 1, Part 2, Part 3, Part 4, Part 5, and Part 6 ↩
- Brown-Driver-Briggs’ Hebrew Definitions gives the definition of châram (Strong’s H2763) as “to ban, devote, destroy utterly, completely destroy, dedicate for destruction, exterminate.” ↩
- McDurmon, Bounds of Love, pp. 50-51 ↩
- Ibid., p. 58 ↩
- With the qualification that all sins are ultimately a sin against the First Commandment, to not have any gods before God. ↩
- Ibid., pp. 62-65 ↩
- Ibid., p. 82. This will be discussed later on. ↩
- Of course, just because a particular action might be morally acceptable in some circumstances, this does not mean that it ought to be considered normatively accepted behavior. Polygamy is a good example of this, as I discuss in further detail in my articles “Divorce, Miscegenation, and Polygamy,” Part 1 and Part 2. ↩
- Ibid., p. 64 ↩
- Jordan Hall, status on Facebook, March 24, 2016. ↩
- See Greg Bahnsen’s classic work Homosexuality: A Biblical View, especially his chapter titled “The Response of Society: Homosexual Acts as Criminal.” ↩
- Bahnsen, Homosexuality: A Biblical View, p. 111. ↩