Wednesday, September 04, 2019

That Wacky Old Testament (15)

If ... the guilty man deserves to be beaten, the judge shall cause him to lie down and be beaten in his presence with a number of stripes in proportion to his offense. Forty stripes may be given him, but not more, lest, if one should go on to beat him with more stripes than these, your brother be degraded in your sight.”

Flogging is a barbaric practice, or at least so goes the conventional wisdom. It has been officially abolished for almost a century in most Western countries. Yet, as the above-quoted passage shows, public flogging was at very least passively sanctioned under the Law of Moses, a fact that may cause the occasional squawk of disbelieving protest from well-meaning liberal Christians.

Do they have a point? Let’s consider.

Beaten, Whipped, Pummeled

In Hebrew, the word translated “beaten” is fairly ambiguous. It refers to any sort of corporal punishment, from a series of punches to a whipping to a pummeling delivered with a blunt object, up to and including a death blow. The word “stripes” is equally unspecific; it simply refers generically to wounds (plural). That said, once corporal punishment became a part of any ancient society’s legal tradition, it is easy to see how flogging would constitute a sensible modification to the regimen. If you’ve ever seen the hands of a bare-knuckle brawler, you know why: punching someone hard forty times does damage to the person delivering the punches as well as to the person receiving them.

The point is this: Although in Israel a flogging would surely have been quite undesirable, there is no need to imagine the legal use of a cat-o’-nine-tails or the sort of Roman flagellation that routinely ripped pieces of flesh from the victim and not infrequently resulted in death at the whipping post. Under the Law of Moses, corporal punishment was not intended to inflict permanent damage or disability. Concerned that they might accidentally miscount their strikes and break the law, the floggers always stopped at thirty-nine.

Corporal Punishment in the Ancient Middle East

For the record, God didn’t invent flogging. Hebrew slaves were regularly beaten in Egypt. Young Spartan men were flogged to test their masculinity. Under Assyrian law, women who failed to wear a veil in public were subjected to fifty blows, followed by having hot asphalt poured on their heads. The ancient Sumerians administered “sixty strikes with an ox-whip” to anyone who struck a member of their social elite.

That’s not to even touch on the sort of astounding barbarism common in ancient Greece, Rome and Babylon; acts that went well beyond public humiliation and usually ended in grisly death, often for comparatively small offenses.

So, no, flogging was not God’s idea. Like so many other things about ancient Israelite society, it was a feature-in-common with the nations of the day. In fact, of all the various sorts of not-usually-fatal corporal punishments dished out by their contemporaries, the Law of Moses was arguably the kindest and gentlest.

Why Corporal Punishment?

It is probably reasonable to ask why any sort of corporal punishment would ever have been deemed necessary. To answer that, we’d have to look specifically at Israelite law.

The Law of Moses mandated three levels of punishment for criminal acts. Their purpose was primarily punitive, but as with all good laws, they also provided a strong disincentive for others to misbehave in the same way. Deterrence was a feature, not a bug.

At the most severe end of the legal spectrum, the law called for capital punishment for the crimes that stood to do the greatest damage to society: murder, rape, human trafficking, adultery, bestiality, witchcraft, homosexuality, and so on.

At the other end of the spectrum, many smaller offenses were resolved through restitution. A thief was obliged to restore what he had stolen or else be sold into slavery as punishment. Under certain conditions, restitution was doubled. Fraud, extortion and a variety of other sins involving loss of property required full restitution plus a 20% penalty. In still other situations, the penalty was four or five times the original value of the item stolen.

In between these two extremes there was corporal punishment. That’s it, that’s all. No jail, ever. Time in prison was not a feature of the Law of Moses. In the Old Testament, we find prisons in Egypt, Philistia, Assyria and Babylon. We do not find them in Israel before the reign of Ahab, and even then they seem to have been makeshift affairs used mostly for the purpose of punishing prophets who told the truth.

Prisons were necessary temporary holding places for suspected spies in time of war, captives from other nations and individuals awaiting a sentence for their crimes, but there was no such thing in Israel as being sentenced to a prison term. It simply wasn’t part of their law.

Considering the Alternative

Seen on its own, flogging may seem primitive and humiliating. But considered as an alternative to a lengthy prison term or even execution (many ancient societies executed people for crimes that in Israel would only have gotten you a beating), flogging suddenly looks a whole lot more desirable from the perspective of the guilty. Remember, the point of public corporal punishment was to avoid degrading an Israelite in the sight of his peers. The word translated “degraded” means “despised” or “shamed”. A quick glance at its usage shows it was usually associated with poverty. The idea of flogging was to provide satisfaction for the injured party and a strong disincentive for future breaches of law without destroying the criminal or his family.

Under Israelite law, a man flogged and released bore his shame for a few minutes, went home, lay in bed recovering for a day or a week, then went right back to work providing for his household. He was not physically damaged in any permanent way. His penalty was fully paid. His punishment was over. It did not drag on for months and years of pointless incarceration. He did not become a tax burden on working Israelites. His family did not starve. His wife did not remarry. There were no sad tales of Israelite kiddies who didn’t know their dad because he’d been locked up for a decade. He was not reduced to begging on the street. He did not become a cautionary tale or an addict. He did not carry around a permanent record that kept him from finding decent employment. He did not endure the horrors and depredations of many modern prisons. He was at no physical risk from other criminals, nor did he have opportunity to become acculturated to their debased psychology, thereby becoming a danger to society and unfit to live as a free man.

In short, he was not degraded; the Law of God ensured it. It punished his crime, provided the necessary deterrent to the criminal and to those observing the consequences of his life choices, then it got him back up on his feet and right back into the mainstream of Israelite life.

Ask yourself which legal system is quicker, cheaper and ultimately kinder. For me, it’s no contest.

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Original illustration courtesy Wellcome Images [CC BY 4.0]

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