E. J. Wilson D.O. | Jerusalem
Since Latter-day Saints have some obligation to be involved in the affairs of their communities and in the civic machinations of the lands where they live (to the extent that is possible according to the laws of the respective lands), it behooves us to be aware of those principles which have been laid down in scripture that are applicable to the formulation of civil and criminal laws, so that we might be in a position to judge the righteousness of laws passed by legislation in those countries where we have some legal and legitimate means of influencing the legislative processes.
The only time that such laws and punishments were spelled out was during the period of Israelite theocracy under Moses. That was a very peculiar and special period of Israelite history. During that period of time the Israelites were not governed by the laws of any monarch or secular government, and yet they were not willing to accept the higher laws that God would have bestowed upon them if they had been willing. Therefore, the heads of the various families could not enjoy the authority and autonomy that had belonged to Abraham, Isaac, and Jacob during the patriarchal period, but were given instead a set of communal rules and regulations.
These communal rules and regulations frequently seem on the surface to have very little application to the laws of our modern, mechanized world; but they contain extremely important and eternal principles, which are part and parcel of that "principle of freedom" mentioned in D&C 98:5. Indeed, there are five basic principles which can be extracted from one small segment of "Mosaic Law" which, if adhered to, would radically change the formulation and administration of most laws governing modern societies. Before discussing these principles individually, however, it is necessary to clear up some generally held misconceptions concerning the so-called Law of Moses.
One misconception is that anything written by Moses can now safely be ignored, because it was all fulfilled in Christ. The mistake here is not recognizing precisely what the prophets meant when they spoke of the law as having been fulfilled, or replaced by a higher law. In making statements of this sort, they were referring, not to the eternal principles which continued in the higher law (thou shalt not murder etc.), but only to the rituals and outward observances which were given as teaching aids, so that the Israelites might learn through the symbolism that was inherent in these ordinances. That is what Paul meant when he said: "Wherefore the law was our schoolmaster to bring us unto Christ, that we might be justified by faith, but after that faith is come, we are no longer under a schoolmaster" (Gal. 3:24-25). In other words, he was saying that we no longer need those same teaching aids of animal sacrifice and other such physical rituals. That is not to say that we no longer need rituals to teach us eternal truths, for such is the nature of much of our temple activity, but merely that the former rituals were to "bring us to Christ", and now that we have arrived at that stage of faith where we are "in" Christ, we have graduated from high school, so to speak, and are now ready for university studies.
The fact that it was the outward ordinances to which the prophets were referring when they spoke of things to be done away in Christ is made quite plain in Alma 25:15, where we are informed that the Nephites kept the law of Moses, "...But notwithstanding the law of Moses, they did look forward to the coming of Christ, considering that the law of Moses was a type of his coming, and believing that they must keep those outward performances until the time that he should be revealed unto them." When Christ himself speaks of the law having been fulfilled in him in III Nephi 9:17, it is quite apparent that he, as well, is speaking not of the eternal principles shared by both the law of Moses and the higher law, but rather he is referring to the outward ordinances, such as sacrifice, for he specifically mentions sacrifice as being abrogated, "...yea, your sacrifices and your burnt offerings shall be done away..." (III Nephi 9:19). Thus, it is vital that we distinguish between those outward observances and the principles they were intended to impart. For example, we no longer need to perform the burnt offering, which was wholly consumed by fire upon the altar and then ascended to heaven as smoke; because that ordinance was in similitude of Christ's resurrection when he ascended to heaven after the atonement had been wrought (and significantly, the burnt offering followed the sin offering, which represented repentance, but preceded the "peace", or "completion" offering, which represented reconciliation to God). Now that the real thing has taken place, there is no more need for the earlier symbolism that was to point us toward the real event.
Another misconception is that any part of the law of Moses not specifically reinstated by Christ or his prophets after the atonement (such as "Thou shalt not kill...in D&C 42:18), was no longer of any consequence. If that were true, we would not need to accept the Old Testament as scripture which is binding on us. Or at the very least, we could tear out the first five books (Genesis through Deuteronomy).
The truth of the matter is that while there are no fundamental principles of righteousness in the law of Moses which are not contained in the higher law, some of those principles are more plainly taught in the law of Moses. That is particularly true of certain principles of civil and criminal law. Such principles had to be given to Moses, who was responsible for regulating the behavior of a large body of people; but during the time of the Savior's mortal ministry, the saints were not living under their own legal system, but rather under a system administered by gentiles (the Romans in that case). That is essentially the case even today, for the modern saints are also living in legal systems of various countries which are essentially in the hands of gentiles. Therefore, the admonitions given by the Lord in the meridian of time and also in these Latter Days have been addressed mostly to the saints in terms of their responsibilities in interpersonal relationships, not to anybody of legislators or judges (with rare exceptions) in an attempt to lay down rules for the application of punishment by third parties.
For example, when Christ said, "Ye have heard that it hath been said, An eye for an eye, and a tooth for a tooth: But I say unto you, that ye resist not evil: but whosoever shall smite thee on the right cheek, turn to him the other also" (Matt. 5:38-39), he is telling us how to react when we are the injured party, not how a judge should handle the case if it is brought to him by two people who are not living this higher law. In the latter case, punishment for the crime is still appropriate, and the law of Moses suggests what that punishment might be. We must therefore distinguish between instructions given to injured parties (which is to forgive, cf. D&C 64:10), and instructions for the handling of such offenses given to the community at large. Indeed, far from advocating the general abolishment of punishment for such misdeeds, we teach that "We believe that the commission of a crime should be punished according to the nature of the offense..." (D&C 134:8).
We may now turn to an examination of five principles contained in the book of Exodus. These principles would be most helpful if they were incorporated into our modern legal systems, for in our current society, the law of Moses would be a decided step up, since most legal formulations and their administration reflect Babylonian principles rather than Biblical principles. Our discussion will be focused mainly on the material in the so-called "Covenant Code", i.e. Ex 20:22-23:33.
I. PUNISHMENT SHOULD FIT THE CRIME, NOT THE CRIMINAL
I remember driving from Ohio to Colorado a few years ago and hearing on the radio that the Supreme Court had struck down a law in a certain western state which required the death penalty for anyone who was already in prison for murder, and who then murdered a fellow prisoner during his period of incarceration. The Supreme Court reportedly insisted that each case be judged individually and that no state could make a law that required the same punishment for everyone who committed a certain type of crime. In other words, the state law was designed to provide uniform punishment for a certain crime, i.e. make the punishment fit the crime, but the Supreme Court dictated that the punishment should fit the criminal instead, not the crime.
Such thinking is a pervasive principle in American law of the 20th century, and it is also common in many other countries. Unfortunately, it directly contradicts teachings of ancient prophets and modern prophets alike. For example, Ex. 21:12 states very plainly, "He that smiteth a man, so that he die, shall be sure put to death." It does not say that we should take into consideration that he is a first time offender, or that he had a disturbed childhood. Indeed, biblical law does not permit us to speculate on what was going on in the murderer's head at the time the crime was committed, for only God can judge the heart. Yet, amazingly, that is precisely the judgment that modern juries are expected to make in deciding felonies.
The only question to be decided (apart from actually identifying the murderer, which requires witnesses, since no circumstancial evidence is acceptable), is whether the killing was accidental or not. If it was accidental, then the perpetrator can flee to a city of refuge (hinted at in Ex. 21:13, and described fully in Num. 35:11-15) until the matter can be decided (if he is being pursued by the relatives of the victim). Guidelines for deciding whether it was an accident are given in Num. 35:16-23 and Deut. 19:4-5.
If it was not accidental, then the punishment if fixed - the murderer must be put to death. No state of mind on the part of the murderer can be taken into consideration. He must be put to death. In fact, Num. 35:33 states that if murderers are not put to death, then the land where they reside becomes polluted, and presumably subject to divine judgment. The death penalty for murder was also stated in this dispensation in D&C 42:19. The punishment must fit the crime, not the criminal. This is consonant with the verse noted above (D&C 134:8), which contains the phrase, "...according to the nature of the offense..."
Part of this principle of making the punishment fit the crime instead of the criminal is the admonition to be "no respector of persons." This is suggested in Ex. 23:3 where we are instructed not to give special consideration to the poor just because of their circumstances. It is more fully expressed in Lev. 19:15, "Ye shall do no unrighteousness in judgment: thou shalt not respect the person of the poor, nor honour the person of the mighty: but in righteousness shalt thou judge thy neighbor." We cannot give special consideration to either rich or poor.
If we wish to apply this principle to modern law, then we must support only laws which have a punishment that is applied equally to all those who commit that particular crime, without regard to their emotional state or previous record.
II. IF THERE IS NO DAMAGE, THERE CAN BE NO PUNISHMENT
This is the lesson of the goring ox in Ex. 21:28-32. If the ox gores someone, and the owner had no reason to suspect that the animal was even dangerous, then the ox is killed, but the owner carries no further liability. On the other hand, if the ox has exhibited aggressive behavior in the past, and the proper authorities have warned the owner, then the owner has the responsibility of assuring that the ox cannot get loose and hurt anyone. If the owner ignores the warning and does nothing to confine the ox, then the owner is fully responsible if the ox kills someone else. In that case, the owner is also put to death (v. 29).
Notice that nothing can be done to the owner who fails to take precautions until the ox actually causes further harm. If the ox never gores another person, then the community can do nothing to the owner, even though it may seem that the owner is creating potential danger by not confining the ox. This is an important principle which addresses the question of responsibility, while protecting the freedom of the owner. As an example of the application of this principle in modern society, we might turn to traffic laws, since these affect almost everyone. In particular, speed limits might be set as guidelines for safe driving. This would be the modern equivalent of warning the ox's owner that he needs to keep his ox locked up, for exceeding safe driving speeds creates potential danger, just as letting the ox roam about free creates potential danger. However, if we were to apply the principle fully, then we could not fine or otherwise punish drivers for exceeding speed limits if they have not actually caused harm; just as it is not allowed to punish the ox's owner unless the ox actually does someone bodily harm again. On the other hand, if someone drives at an excessive speed and causes an accident in which someone else is killed, then that driver would be under the same condemnation as the owner of the goring ox who has been warned - he would have to be killed himself! Does this sound harsh? It is much more righteous than the laws currently in force, for it requires responsibility while safeguarding the principle of freedom so long as no harm occurs.
This principle can be extended to any law that prohibits the creation of potential danger, not only traffic laws, but also all laws concerned with such matters as the licensing of physicians and other professionals. If a person, with or without a medical degree, is practicing medicine and using a treatment which has proven dangerous in the past, that person could be warned, and then punished if he persisted in using that treatment and if it then resulted in a death that could have been avoided. But he could not be prevented from practicing medicine, simply because the community might assume that a person practicing medicine without a state-recognized medical education might be creating potential danger to his patients.
III.SELF INFLICTED HARM
We may want to apply this principle to seat-belt laws, or any other laws passed for "our own good." Certainly, the principle of no punishment if there is no harm would also apply, i.e. the state could not punish us until we actually hurt ourselves. But there are actually two principles violated by seat-belt laws: the first is that of applying punishment even when there is no harm; but the second is the fact that biblical law does not permit the state (i.e. "community") to punish people for hurting or endangering themselves. That is up to God. The community can only regulate the actions of one person when they harm another person.
IV. NO "SARCOMONETIZATION"
"Sarcomonetization is a term I would like to suggest for the concept of equating body parts with money. There is already the term "composition," which is used in a very specific sense when scholars speak of the laws of the Ancient Near East which allow a person who has caused bodily harm to someone to make amends by paying a certain amount of money. That fixes a price on various body parts and is one form of "sarcomonetization," but there is another form. That is the form in which the crime committed is one of property damage or theft of property, and the punishment is corporeal, such as cutting off the hand of the thief. In the first case, the damage is corporeal, but the punishment is monetary. In the second case, the damage is monetary, but the punishment is corporeal. In both cases, body parts are being equated with money (if the thief's hand is cut off for stealing a loaf of bread, then we have said, in effect, that the hand was worth one loaf of bread or its equivalent), but there is no legal term to cover both forms of the equation. Hence the neologism sarcomonetization from the Greek root sarcs meaning "flesh" and the Latin term moneta, meaning "coin."
In short, the concept of sarcomonetization is Babylonian, not biblical. The Bible contains the so-called lex talionis (i.e. "law of punishment in kind"), an eye for an eye, a tooth for a tooth etc. This is first encountered in the Covenant Code in Ex. 21:24-25, where it is given in connection with harm caused to a pregnant woman by two men fighting. One could get the mistaken impression that that is the only time it applies, because the case of one man causing bodily harm to another man in a fight was already covered in that chapter (vv. 18-19), and there was mention there of an eye for an eye. We must observe, however, that in those earlier verses, the two men were equally guilty and therefore equally responsible, unless one managed to kill the other. In the case of the pregnant woman, however, she was an innocent bystander.
Fortunately, the principle of an eye for an eye is given again in Lev. 24:19-20. There it states that if a man has (intentionally) caused bodily harm to his neighbor, he shall be paid back in kind, eye for eye etc. It would appear that this applies to the case of one man attacking another without provocation, not to two men agreeing to square off and "duke it out." Therefore, this law could be applied nicely to muggers who attack innocent pedestrians and cause them bodily harm.
The Babylonian answer to this is to simply accept a cash payment for the injury. For example, in the oldest example of laws from Babylon (actually from Sumer, which preceded Babylon), which are some laws of the Sumerian king, Urnammu (2111-2094 B.C.), we read that if a man cuts off the nose of another man, he simply pays 2/3 mina of silver (law 18). In the laws of Eshnunna, which were written about two centuries later, we find a veritable catalogue of prices for body parts that have been destroyed by some attacker. For example, an eye is worth one mina of silver, a tooth 1/2 mina, and a simple slap in the face only costs the perpetrator 10 shekels.
By the time we get to Hammurabi, who was the king of Babylon in the 18th century B.C., we see that there is already movement toward punishment in kind, such as we find later in the Bible:
"If a man has put out the eye of the son of a freeman, they shall put out his eye. If he has broken a man's bones, they shall break his bones." 3 Indeed, the Code of Hammurabi is a somewhat mixed bag, containing elements of sarcomonetization as well as elements of the lex talionis. While the latter predominates (at least among free men), the former is visible for example in the law which states that if a person strikes the cheek of his social equal, he shall pay 1 mina of silver (inflation since Eshnunna!). Nevertheless, it is a major step toward the biblical treatment of intentionally caused bodily injuries. If we say flatly that there is no "composition" in the Bible (i.e. sarcomonetization involving money taken in payment for bodily injuries), then there are three passages which would seem, at least on the surface, to present exceptions.
The first apparent exception occurs when two men are fighting and strike a pregnant woman (Ex. 21:22ff.). If she miscarries as a result, the guilty party pays whatever the husband of the woman determines. But this is not sarcomonetizaton of the fetus because there is no fixed price as there is in the Code of Hammurabi where the "going rate" of a fetus was ten shekels of silver (law 209). Since the body parts in all other Near Eastern law collections have fixed prices attached, the fact that the price here is variable (i.e. determined by the husband) suggests that the money is not compensation for the lost fetus, but for something else. Moreover, the fact that sarcomonetization can not be considered in this case is made clear by verses 23-24 which specify that any bodily harm to result to the mother is to be punished in kind (eye for eye etc.), not by monetary fine. Then what was the money for?
A comparison to the pericope that immediately precedes the case of the pregnant woman gives us the answer. It is the case of two men fighting and one severely injures the other, so that he is bedridden for a few days. In that case, the offender pays, not for the injuries, but only for the missed income and for the medical expenses. 4 That means simply that the injured man has no out-of-pocket expenses as a result of the injuries, but neither does he profit from those injuries, because that would constitute sarcomonetization. Therefore, the money demanded by the husband of the pregnant woman who miscarries as a result of a blow can only be of a similar nature: i.e. money to pay her medical expenses, and possible lost income if she worked or the husband had to miss work to care for her.
The next case is that of the goring ox again. In Ex. 21:30 we read concerning the owner who has been warned, but whose ox has gored again, "If there be laid on him a sum of money, then he shall give for the ransom of his life whatsoever is laid upon him." A casual reading might lead us to suspect that the owner can "buy" his way out of the death penalty prescribed in the preceding verse, but that is not the case. The real answer is that there has been doubt whether the man is really guilty of neglect. If he had done nothing at all after being warned, then the case for neglect would be clear. But what if he did indeed take some precautions, and they were simply inadequate? That is apparently the case in verse 30, where he cannot be convicted of absolute neglect, but he nevertheless has to pay money. So, what is the money for? Since the phrase "ransom of his life" appears, we might suppose that he is required to make a sacrifice that represents part of his life and livelihood, perhaps as part of the repentance process. Therefore, there is no fixed price for the bodily harm caused, but rather the judges have to decide how much he should pay, and that will vary according to his financial circumstances.
The final seeming contradiction to our stated principle of no sarcomonetization is also contained in the goring-ox section. In verse 32 we see that if the ox gores a servant (and presumably kills that servant), the owner pays 30 shekels of silver. Is this not placing a price on human life? It certainly is not! The price of a servant (and keep in mind that Hebrew servants went out free after six years anyway, so they were not slaves in the same sense as we saw slavery in America during the last century) was thirty shekels. If that servant died, two things occurred. The first was the loss of a life, and no value can be placed on that. But the second thing that happened is that as a result of the loss of the services of that servant, the "owner" was out thirty shekels. Therefore, thirty shekels were paid to that owner (simply replacing lost money), but no money went to the family of the servant to assuage their grief, for that would indeed be sarcomonetization.
The practical application of this principle in modern times would be most apparent in the area of medical malpractice suits. If we were not permitted to place a dollar value on body parts, then the number of such suits would drop drastically, for families would not be able to profit from the suffering of their family members. Justice could still be achieved in a biblical sense by inflicting bodily harm on doctors who intentionally caused injuries (which would be extremely rare). In other words, honest mistakes should not be punished, and if the injury is accidental, no one should profit from it. On the other hand, there still must be a means of dispensing justice in cases of intentional harm.
V. THE RESPONSIBILITY OF WITNESSES
In the Bible, witnesses are responsible for their testimony. It is not permitted to loosely accuse a person of something without proving it. This is implied in Ex. 23:1, "Thou shalt not raise a false report...," but it is more explicit in Deut. 19:18-19: "And the judges shall make diligent inquisition: and, behold, if the witness be a false witness, and hath testified falsely against his brother; Then shall ye do unto him, as he had thought to have done unto his brother: so shalt thou put the evil away from among you." This principle, which also appears in the Code of Hammurabi (laws 2-4), is very righteous. It prevents slander and false accusations: those very things which are ruining prominent (and even not so prominent) people in our society at an alarming rate.
It is possible to accuse someone of iniquity today and ruin, for example, a promising political career, without ever proving the accusation. If the biblical principle were applied (and assuming that there were actually laws in place to punish things like moral transgression) then the accuser would pay the penalty of the crime if he could not prove it. Imagine how this would affect the number and type of law suits being filed! As a former physician, I can only come back to the topic of malpractice suits. If someone sued me for malpractice for, say, $500,000 and lost, then they would have to pay me that sum. It would essentially eliminate what are known in the trade as "nuisance suits", i.e. suits which have no merit whatsoever, but which are filed because it is generally known that if someone sues for a large amount, the malpractice insurance carriers almost always settle out of court for much smaller sums, not caring whether the case really has merit, because it would cost them too much to establish that.
There are other types of cases where that would make a considerable impact, but the interested reader may provide his own examples. The "bottom line" is quite simply this: if we apply these five principles to modern laws, we have a fairly reliable yardstick to measure their righteousness, and we may be very surprised to see how many do not "measure up."