Feticide, The Masoretic Text, And The Septuagint

By Matthew Flannagan

[Matthew Flannagan, a theologian based in Auckland, New Zealand, is currently a teaching elder at Takanini Community Church in Auckland.]

Implicit, if not overtly explicit, in much historic Christian moral reflection on feticide is a simple, three-premise position. Firstly, that there is a divine law prohibiting homicide, the killing of a human being without adequate justification; secondly, that a formed conceptus, a fetus, is a human being; and thirdly, that in all or most cases of feticide, justification for homicide is not forthcoming. In this article, I will refer to this line of argument as the Alexandrian argument, naming it after the Alexandrian Jews from whom it originated. The Alexandrian argument receives one of its clearest expositions by Philo. In his commentary on the Decalogue, The Special Laws, Philo argues that the law of God considered the killing of a formed conceptus to be homicide and hence a violation of the sixth commandment.[1] With this conclusion established, Philo offered an a fortiori argument against the widespread practice of infanticide in his day. If killing a fetus before birth were homicide, then killing children after birth would be as well. Therefore, the law condemned infanticide, like feticide.

Like Philo, numerous early Christian writers appealed to feticide in a fortiori arguments against infanticide and appropriated the argument Philo expounds. Examples include Athenagoras, Tertullian, and Minucius Felix.[2] This argument against infanticide is also found in the fourth-century catechism The Apostolic Constitutions.[3] And it was formulated by Pope Stephen V writing in 887.[4] Allusions to the Alexandrian argument also appear in the writings of Jerome, Lactantius, Gregory of Nyssa, Cyril of Alexandria, Theodoret, Ambrosiaster, and Augustine of Hippo.[5]

In the early Middle Ages the Alexandrian argument found its way into penitential literature, particularly the collections, The Canones Hibernensis (675), Bigotian Penitential (4.2, 2–4), Anglo-Saxon Penitentials (668–690), Capitula Deacheriana, Canoes Gregorii, and Penitentiale Discupulus Umbrensium. Later through Ivo of Chartres it was incorporated into official canon law in the Concordia of Gratian (1160), the Compilationes of Bernard of Pavia, and the official Decretals of Raymond of Pennaforte. The position also found its way into civil law: Bracton and Fleta appropriated the argument into English common law and, on the continent, canon lawyers Ionnaes, Teutonicus, and Henricus de Sequsio and the thirteenth-century jurists reinterpreted Roman law in light of canon law.

The claim that feticide was homicide was also defended by medieval theologians such as Peter Lombard (1095–1160), Albert the Great (1206–1280), and Thomas Aquinas.[6] It was assumed in the causitical discussions of John of Naples and Antoninus of Florence. This led to a debate about the licitness of therapeutic abortion among theologians of the fifteenth century and later.

The argument was also ecumenical. It was alluded to by Luther,[7] defended by Calvin,[8] Melanchthon, and Puritan-era writers Guillemeau and Gouge.[9]

What is important for this study is that this debate demonstrates that casuistry of this sort was engaged in with a background acceptance of the Alexandrian argument. In her book Our Right to Choose, Beverly Harrison attempts to undercut this tradition of interpretation. Harrison alleges that the Alexandrian argument is based on a mistranslation of the Hebrew text. Harrison states,

When the Pentateuch was translated into Greek by Alexandrian Jews in the second century, this Septuagint translation of Exodus 21:22 introduced a distinction between an unformed and a formed fetus uncharacteristic of the original Hebrew text. As a result, the original proscription against causing the death of a pregnant woman was transformed by translation into a command to exact the same penalty if a “formed” fetus died. Roman Catholic historian John Connery acknowledges that it was this mistranslation that motivated the Jewish thinker Philo Judaeus’s rigorous tract Two Ways that was adapted by the Christian writer of the Didache. The result, which Connery also grants, was that the mistranslation of the Septuagint influenced Christians far more than Jews. As Connery observes “Rabbinical Judaism, after the destruction of the temple, reverted to its own traditional interpretations of life in the womb as . . . part of the mother’s body.”[10]

Harrison claims to be citing conservative Catholic theologian John Connery; however, an examination of the text suggests that the person she refers to is George Williams.11 Harrison’s argument is based on apparent discrepancies between the Septuagint (LXX) and the Masoretic Text (MT) over the rendering of Exod 21:22–25. The LXX translation of Exod 21:22–25 reads,

If two men fight and strike a pregnant woman, and her unformed embryo departs, he shall be fined; according as the woman’s husband lays upon [him] he shall give according to what is thought fit. But if it be formed, he shall give a life for a life.[12]

This differs from the MT:

When people who are fighting injure a pregnant woman so that there is a miscarriage, and yet no further harm follows, the one responsible shall be fined what the woman’s husband demands, paying as much as the judges determine. If any harm follows, then you shall give life for life, eye for eye, tooth for tooth, hand for hand, foot for foot, burn for burn, wound for wound, stripe for stripe. (NRSV)

Harrison’s argument regarding this discrepancy consists of three claims. Firstly, she suggests that Christian prohibition of feticide is based upon the LXX and that early Christian writers acquired the LXX translation via the Didache. Secondly, she suggests that the MT, which in her view accurately captures the original law, did not consider feticide a major crime. Commenting on the RSV translation of the MT, she states,

It demonstrates that causing the death of a fetus did not constitute a major crime at that time; payment of a fine to a prospective father was considered adequate compensation for the miscarriage. Hurting or maiming a pregnant woman, on the other hand, was a serious penal offence equivalent to other life denying crimes.[13]

Thirdly, she argues that the LXX mistranslates this law and incorporates a prohibition of feticide into the text that is not there.

If these three contentions are correct then the Alexandrian argument rests upon a mistranslation of Scripture. Moreover, Harrison contends that if this mistranslation were corrected and the correct interpretation followed, the Torah should lead those who wish to be faithful to Scripture to support feticide as licit.

In response I will examine whether each of Harrison’s contentions is correct. From the outset I will grant Harrison’s assumption that the MT accurately captures the original and that the LXX is the later translation. I will also grant her point that the argument has origins in Alexandrian Judaism and the LXX.

The discussion will then ask whether each of Harrison’s other claims is correct. Does the MT consider feticide a minor crime? And does the LXX misinterpret the original?

I. Does The Masoretic Text Consider Feticide A Major Crime?

Harrison claims that the law “demonstrates that causing the death of a fetus did not constitute a major crime at that time; payment of a fine to the prospective father was considered adequate compensation.”[14] She is not alone in making this argument. In an influential textbook James Rachels argues,

The scriptural passage that comes closest to making a specific judgment about the moral status of fetuses occurs in the 21st chapter of Exodus. The chapter here is part of a detailed description of the law of the ancient Israelites. Here the penalty for murder is said to be death; however, it is also said that if a pregnant woman is caused to have a miscarriage, the penalty is only a fine, to be paid to her husband. Murder was not a category that included fetuses. Clearly, the Israelites regarded fetuses as something less than full human beings.[15]

Similarly, Graham Spurgeon argues,

If you cause the death of the fetus, you merely pay a fine; if you cause the death of the woman, you lose your own life. Thus the Bible clearly shows that a fetus is not considered a person. If the fetus were considered to be a person, then the penalty for killing it would be the same as for killing the woman—death.[16] (emphasis original)

These arguments all rely on three interpretative judgments, some of which are reflected in the NRSV translation cited above. These judgments are:

(a) That the case under discussion is that of a pregnant woman being struck and then miscarrying as a result. 

(b) That vv. 22 and 23 distinguish between whether there is, or is not, harm to the woman. 

(c) That the punishments rendered in each case are qualitatively different. If the fetus is killed, the punishment is “only a fine,” indicating it is not a serious offence. On the other hand, if the woman is killed the penalty is more serious. It is death.

I think that (a) and (b) are defensible but that (c) is not. I will address each in turn.

1. Does The Case Deal With A Miscarriage?

The RSV interprets the passage as involving a miscarriage. Verse 22 is rendered, “When men strive together and hurt a woman with child, so that there is a miscarriage.” This reading has been challenged. Calvin argued that it refers not to a miscarriage but to a premature birth.[17] Cassuto, who held the same view, summarizes this reading as,

The statute commences, And when men strive together, etc., in order to give an example of accidental injury to a pregnant woman and . . . the law presents the case realistically. Details follow: and they hurt unintentionally a woman with child—the sense is, that one of the combatants, whichever of them it be (for this reason the verb translated “and they hurt” is in the plural) is responsible—and her children come forth (i.e., there is a miscarriage) on account of the hurt she suffers (irrespective of the nature of the fetus, be it male or female, one or two; hence here, too, there is a generic plural as in the case of the verb ‘they hurt’), but no mischief happens—that is, the woman and the children do not die—the one who hurt her shall surely be punished by a fine, according as the woman’s husband shall lay—impost—upon him, having regard to the extent of the injuries and the special circumstances of the accident; and he who caused the hurt shall pay the amount of the fine to the woman’s husband with judges. . . . But if any mischief happens, that is, if the woman dies or the children die, then you shall give life for life, eye for eye, etc.[18] [emphasis original]

Before examining the arguments in favor of this reading it is important to note that many critics have dismissed this reading in far too cavalier a manner. Paul Simmons refers to an influential defence of this reading by Jack Cottrell and responds by noting, “He stands virtually alone among scholarly translators and interpreters of this text. The novelty of his interpretation seems to be dictated more by necessity than by the text.”[19] Harrison expresses similar sentiments: “a fairly solid consensus” supports the NRSV interpretation.[20]

This response is erroneous for two reasons. Firstly, the claim itself is simply false. It is untrue that Cottrell is “virtually alone” among interpreters in reading the text this way; nor is his interpretation novel. Numerous, significant commentators, in fact, defend this interpretation. Calvin adopted it, and scholars such as Keil,[21] Geiger, and Dillman followed it. In the twentieth century, exegetes as diverse as Wayne House, Bernard Jackson, Meredith Kline, Walter Kaiser, John Ellington, J. Weingreen, Cassuto, Gleason Archer, James Hoffmeier, and Norman Geisler have defended it.[22] The NIV adopts this interpretation. In light of these facts, it is plausible to contend that the “solid consensus” Harrison refers to does not exist. Secondly, one does not ascertain the correct meaning of a text by counting heads. One does so by examining arguments in favor of the interpretation and establishing whether they are sound or not.

Simmons offers several other criticisms of Cottrell, all of which fail for similar reasons. He notes that some “fundamentalist” scholars disagree with Cottrell. This response hardly constitutes a rebuttal, as numerous scholars do not agree with Simmons, including many whom Simmons would call fundamentalists, yet that alone does not entail that Simmons is mistaken. Moreover, the specific scholar Simmons mentions is Bruce Waltke. Interestingly, it was Waltke whom Cottrell was criticizing in the article cited, and Waltke promptly changed his opinion after reflecting upon Cottrell’s critique.

Simmons goes on to note that the Talmud interprets this passage as a miscarriage and then states, “Although tradition does not establish truth, one would think that ancient interpretations would be helpful in dealing with awkward textual materials.”[23]

In making this last point, Simmons undercuts his own argument. After all, is not the Septuagint itself an ancient interpretation? Parity of reasoning would lead us to conclude it was correct. Moreover, the Talmud argues that feticide violates the Noahic law against homicide, a position Simmons is specifically criticizing. In addition, the dominant, Christian interpretation of the text in question has been to understand it as prohibiting feticide; again the appeal to traditional interpretation undercuts itself.

Whatever can be said of Cottrell’s interpretation, it cannot be dismissed by appeals to a false consensus or by noting that not everyone shares his position. The arguments in favor of it need to be examined.

1. Arguments for the premature birth interpretation. Those who argue that the text deals with a premature birth as opposed to a miscarriage base their conclusions on three lexicographical concerns. Firstly, they note that the Hebrew word that the RSV translates as miscarriage is not the normal Hebrew word for miscarriage, which isשכל . שכל does not occur in the MT rendition of this text; instead, י שׂא is used. יצא is a far more general verb that means “to come out.”

Secondly, defenders of the premature-birth view point out that the normal Hebrew noun for a miscarried fetus, נפל, is not present either. Instead, what is said to come out is ילדיה, a term meaning “her children.”

Thirdly, defenders of this interpretation note that when יצא is used with children in utero in the context of pregnancy the phrase nearly always refers to giving birth. This is evident from other passages in the Pentateuch.

When the time came for her to give birth, there were twin boys in her womb. The first to come out was red, and his whole body was like a hairy garment; so they named him Esau. After this, his brother came out, with his hand grasping Esau’s heel; so he was named Jacob. Isaac was sixty years old when Rebekah gave birth to them. (Gen 25:24–26 NIV)

When the time came for her to give birth, there were twin boys in her womb. As she was giving birth, one of them put out his hand; so the midwife took a scarlet thread and tied it on his wrist and said, “This one came out first.” But when he drew back his hand, his brother came out, and she said, “So this is how you have broken out!” And he was named Perez. Then his brother, who had the scarlet thread on his wrist, came out and he was given the name Zerah. (Gen 38:28–30 NIV)

The same use of יצא referring to a birth occurs in later Hebrew writings.

Cursed be the day I was born! May the day my mother bore me not be blessed! Cursed be the man who brought my father the news, who made him very glad, saying, “A child is born to you—a son!” May that man be like the towns the Lord overthrew without pity. May he hear wailing in the morning, a battle cry at noon. For he did not kill me in the womb, with my mother as my grave, her womb enlarged forever. Why did I ever come out of the womb to see trouble and sorrow and to end my days in shame? (Jer 20:14–18 NIV)

Based on these facts it is claimed that the text deals with a case where the woman is struck so that she gives birth prematurely; nothing about the text suggests that the fetus dies. The phrase “and no harm follows” quite naturally in this context refers to the fetus. The text then, according to this argument, states that if the fetus is born unharmed and survives then there is a fine, but if the fetus is harmed the lex talionis applies.

Initially this argument appears compelling and it is repeated many times in the literature. However, Russell Fuller has refuted it in a 1994 article.[24] Fuller examines various ancient Near Eastern (ANE) legal codes from roughly the same period as the Pentateuch and notes three important facts.

Firstly, he notes that these codes enacted laws to deal with a case where a pregnant woman was struck by a man and miscarried as a result. The Code of Hammurabi, the Middle Assyrian laws, the Hittite laws and the Persian laws all deal with this contingency. It appears to be a standard case in ANE jurisprudence.

Secondly, no legal literature of the period ever referred to or dealt with a case where a woman gave birth prematurely. Finally, those laws that do deal with an induced miscarriage use phraseology equivalent to the phraseology in the book of Exodus. A miscarriage is described as “her child drops out” instead of the standard technical terms for miscarriage. In some cases, the laws dealing with miscarriage use phraseology that would be almost word for word identical with the text of Exod 21:22 if they were transliterated into Hebrew. Fuller notes the implications of this.

In all Biblical and ancient Near Eastern legal literature and in almost all the general literature, there are no references to premature births. It simply was not directly addressed. Therefore if Moses were introducing a new, unique law, previously unknown (at least from the sources we now possess) to the general society and culture, concerning a premature birth, he would have avoided ambiguity and misunderstanding by using precise language, especially if similar laws from the broader society, such as laws concerning miscarriage, might have confused the issue. Moses, on the contrary, by using general language in Ex 21:22, most likely intended his readers to understand this law according to the broader context of society. Therefore he considered it unnecessary to insert lah after ason (or to write nepel instead of yeled) since that society and culture understood to whom ason applied.[25]

Fuller’s point is that if Moses were describing a premature birth it is highly unlikely that he would do so using language and terms that were almost identical to the language normally used in ANE jurisprudence to designate miscarriage, especially if he were departing from the standard paradigm and introducing a new case. If Moses were departing from the paradigm then one would expect the author to depart from the normal phraseology rather than simply repeat it. Far from being evidence against the miscarriage interpretation, the use of ויצאו ילדיה in the context of ANE legal code is evidence in favor of this reading. If one is drafting law on miscarriage, it is not surprising that one adopts language normally used in such laws.[26]

2. The premature birth interpretation refuted. The arguments in favor of the premature birth interpretation fail. Further, the interpretation itself is very unlikely for several reasons.

Firstly, the absence of contemporary medical technology in the period when the ANE texts were written would mean that the fetus surviving a premature, live birth would almost never happen. R. N. Congdon notes that only in the last six weeks of pregnancy would an infant’s lungs be sufficient to live outside the womb. He notes further that only a severe blow could cause a miscarriage at this stage. Such a blow would, in the majority of cases, cause injuries such as a fractured skull, uterine rupture, or damage to the oxygen supply that would result in death. In a typical case, a child born prematurely because of such a blow would die within forty-eight hours.[27] In a non-technological era it is highly improbable that a situation would arise where a woman is struck so she goes into labor, gives birth, and there is no harm to the child.

Secondly, the law in Exodus in terms of its structure, literary form, and language parallels ANE laws dealing with miscarriage. The Code of Hammurabi and the Middle Assyrian laws all deal with cases where a man strikes a woman and she miscarries, but is not hurt herself, and cases where she is hurt. All use the same language and phraseology as Exodus does.[28] In fact, the description of an induced miscarriage in the protasis of a contemporary Hittite law parallels the Exodus law “down to the minute details of phraseology.”[29]

Thirdly, in the Exodus law, the word ילדיה (“her children”) is plural; this makes sense if the text refers to a miscarriage. Sprinkle notes that a miscarriage would probably be described with a plural of abstraction so that the child was rendered “fruit” or “product of her womb.”[30] A similar way of referring to miscarried infants occurs in other ANE law. Conversely, if the word ילדיה is simply a normal reference to children then the case law must envisage multiple births, a rare phenomenon. Surviving a premature birth in such a society would be extremely rare, and the rarity of a premature, multiple birth compounds these improbabilities. A case where a woman was struck and had surviving, premature twins or triplets would be so improbable that it would hardly require specific legislation.

Taken together these factors provide a compelling case that Exod 21:22 does not refer to a premature birth. If the text did refer to a premature birth, then one must conclude that the law introduces a case nowhere discussed before, which is almost never going to happen and the occurrence of which would be practically impossible, all the while utilizing the same literary form that was normally used to refer to a miscarriage in the legal texts and case law of the period.

Therefore, miscarriage makes significantly better sense in the context. If the text deals with a miscarriage it is not surprising that it uses the same language as other miscarriage cases in other ANE legal codes or that it is set out in similar form to such laws. A miscarriage was a likely event and the plural language is readily explicable. The first of Harrison’s interpretive judgments is therefore defensible.

2. Is The Harm To The Woman Or The Fetus?

The RSV renders the word אסון in v. 23 as “kill” and attributes it solely to the mother. Other translations render it as “mischief” (KJV), “serious injury” (NIV), or “harm” (ASB). That אסון means some form of harm is well attested. This term occurs only three other times in the HB.

Then ten of Joseph’s brothers went down to buy grain from Egypt. But Jacob did not send Benjamin, Joseph’s brother, with the others, because he was afraid that harm might come to him. (Gen 42:3–4 NIV) 

But Jacob said, “My son will not go down there with you; his brother is dead and he is the only one left. If harm comes to him on the journey you are taking, you will bring my gray head down to the grave in sorrow.” (Gen 42:38 NIV) 

“Your servant my father said to us, ‘You know that my wife bore me two sons. One of them went away from me, and I said, “He has surely been torn to pieces.” And I have not seen him since. If you take this one from me too and harm comes to him, you will bring my gray head down to the grave in misery.’” (Gen 44:27–29 NIV)

In each case it refers to Jacob’s fear that Benjamin will be harmed as his brother Joseph was. In the narrative, the harm that befell Joseph (or at least that Jacob thought had befallen him) was being killed by a wild animal. Moreover, its use later in the narrative is associated with the fear that he will be executed in prison.

The question is whether in the Exodus context it refers to harm to the mother. Some translations (e.g., NLT) render the passage as “no further harm.” However, nothing in the Hebrew grammar demands this. In the Hebrew it is unspecified whom the harm applies to and several arguments have been proposed suggesting that the harm is to the fetus and not the woman.

Westbrook argues that the word means “a disaster for which no one can be held responsible.” He then suggests אסון is predicated of the child.[31] Verse 22 deals with a case where one can assign responsibility and v. 23 deals with a case where one cannot. This interpretation has the added advantage of explaining the change from the third person “he shall pay” in v. 22 to the second person “you shall pay” in v. 23. In the first case the person responsible pays. In the second case, where the perpetrator is unknown, the whole community does.[32]

The problem with this argument is that Westbrook’s claim that אסון means “a disaster for which no one can be held responsible” is not well attested by the evidence. Moreover, as noted by Sprinkle, several uses of the word in both the HB and in later Hebrew Apocrypha suggest the contrary.[33] For example, the fear in Genesis that Benjamin would be killed does not have this feature. His brothers agreed to take responsibility and his execution by Egyptian officials would not be an event for which one was unsure who is responsible. In addition, Jacob believed a wild animal caused Joseph’s death so it is doubtful that אסון carries the nuance that Westbrook suggests.

A second line of argument claims that the nuances of the word אסון fit more naturally with the death of a fetus than the death of the mother. Kline argues,

A calamitous loss involving serious injury or even death is denoted by ason. In the only other Biblical context where ason is found it describes the grievous calamity that Jacob fears will befall Benjamin on the journey to Egypt (Gen 42:4, 38; 44:29). The choice of this unusual word in Ex 21:22 (problematic if the reference were to injury or death of the woman, for which the more common terminology would be expected) is readily explained if ason refers to the less everyday circumstance of the calamitous loss of offspring by violently induced miscarriage.[34]

Similarly, Jackson argues,

Why should an unusual word like aswn be used in Exod. xxi 23 to refer to death, when the ordinary verb mwt would appear to have served equally well? Fatal injuries are a common enough topic in the Mishpatim, but on every other occasion the normal verb is used. There must be some reason why it is not used in Exod. xxi 22, 23. Part of the reason is that the word aswn, as is evident from the Jacob-Benjamin narrative, stresses the effect of the happening on some person other than the direct victim. Perhaps the best translation is “calamity.”[35]

Later on in the same work he adds,

Had it [aswn] referred to the woman, it would be impossible to understand why the normal word for death was not used. But where a foetus is concerned, any hesitation to use the normal terminology of death is quite reasonable. . . . We have seen that elsewhere it emphasizes the effect of the death or serious injury upon someone other than the victim himself.[36]

Neither of these arguments is compelling. Jackson appeals to Gen 42:4, 38 and 44:29 where Jacob stresses that harm to Benjamin will cause him to die of grief and infers from this that אסון means a harm that affects someone other than the direct victim, but this does not follow. The fact that I note that the death of someone close to me will devastate me does not mean that the effect on a third person is written into the meaning of the term “death.”

Moreover, both Kline’s and Jackson’s arguments suffer from the fact that the word אסון is so rare in the HB that the samples they appeal to are too few to be decisive. The fact that the few references that occur have a special nuance is insufficient to ground an inference that this nuance is part of the meaning.[37]

There is a more serious problem in attributing the harm as applicable to the fetus. The translation only makes sense if the passage refers to a premature birth and not a miscarriage. If the passage refers to a miscarriage then a miscarriage has occurred but the fetus did not die. This renders the text self-contradictory. I argued earlier that this text does refer to a miscarriage and that the premature-birth interpretation was subject to serious criticisms. In light of these criticisms, the argument ceases to be tenable. Once it is established that the text refers to a miscarriage the question of to whom the mischief refers is easily solved. If the blow has killed the fetus, it cannot be the fetus that is not killed in v. 23. Further, if already dead, the fetus cannot be said to have undergone further harm.[38]

3. Are The Punishments Qualitatively Different?

Crucial to the arguments of Rachels, Harrison, and Spurgeon is their claim that the punishments for killing the woman and for killing the fetus are qualitatively different. Harrison states that the Masoretic text

demonstrates that causing the death of a fetus did not constitute a major crime at that time; payment of a fine to a prospective father was considered adequate compensation for the miscarriage. Hurting or maiming a pregnant woman, on the other hand, was a serious penal offence equivalent to other life denying crimes.[39]

Harrison affirms that because killing the fetus is only punished with a fine it follows that killing a fetus is not a serious crime. On the other hand, the law allegedly states that hurting a pregnant woman was equivalent to “life denying crimes.” Exactly what Harrison’s basis for this claim is, is unclear. Others who make the same line of argument are more explicit. Spurgeon is a paradigm. He writes,

If you cause the death of the fetus, you merely pay a fine; if you cause the death of the woman, you lose your own life. Thus the Bible clearly shows that a fetus is not considered a person. If the fetus were considered to be a person, then the penalty for killing it would be the same as for killing the woman—death.[40]

Crucial to this line of argument then is the claim that while killing a fetus is punishable by fine, killing a woman is punished by death. This appears to rest on a literalistic[41] reading of v. 23 where the phrase “life for a life” is understood as the killing of the assailant for the death of the woman.

This reading of v. 23 is disputed. The phrase “life for life” is the first part of an extended phrase which states, “you shall pay life for life, eye for eye, tooth for tooth, hand for hand, foot for foot, branding for branding, wound for wound, stripe for stripe,” a phrase which has become known as the lex talionis.

1. Is the death of the woman a capital offence? One influential interpretation argues that this phrase merely expresses a legal formula which is expounded in proverbial form. The principle is that whatever punishment is imposed (and in this immediate case the punishment is a fine) must be proportionate to the harm inflicted on the victim. Sarna notes, “Rabbinic tradition understood the biblical formulation to mean monetary payment and not physical retaliation,”[42] and he defends this interpretation. Drazin notes that the Talmudic halacha in b. Bek. 84a and Sanh. 79a and in Mekhilta all understand the phrase to refer to a principle of commensurate compensation.[43] Plaut states that “few passages in the Torah have been so thoroughly misunderstood” and suggests the text is best understood as requiring “the value of an eye for the loss of an eye,” “the value of a limb for its loss and so on.”[44] Rachels and Harrison do not engage with this tradition of exegesis. They appear merely to assume a literalistic reading without argument.

There are, I think, good reasons for accepting the traditional rabbinic exegesis on this point. Here I will provide six. While none of them may be decisive in itself, jointly, I believe, they provide a strong case for reading v. 23 in the traditional fashion.

The first reason is how phraseology such as that found in v. 23 functions in the genre that Exodus displays. As noted above, this section of the book of Exodus in terms of its structure, literary form, and language parallels the structure and language of ANE legal texts. Interestingly enough, the legal formulas such as “an eye for an eye” or “a tooth for a tooth” are not uncommon in such codes. In Old Babylonian law the hand that assaults is severed, a man who kisses another’s wife has his lips cut off, a person who steals bees is to be stung by bees. A person who had thrown his victim into an oven was to be thrown into an oven. A man who raped another’s wife would be sentenced to having his own wife or daughter raped. A negligent builder whose house collapsed and killed another’s son would be sentenced to having his own son killed.[45] The Code of Hammurabi states that if a man knocks out the eye of one of the upper classes, his eye must be knocked out.[46]

Westbrook notes that such laws “reflect the scribal compilers’ concern for perfect symmetry and delicious irony rather than the pragmatic experience of the law courts.” The method used in legal texts was “to set out principles by the use of often extreme examples.” He goes on to note, “Some law codes impose physical punishments and others payments for the same offenses, while some codes have a mixture of the two. There is not necessarily a contradiction.” He explains that “in highlighting one or the other alternative, the codes are making a statement as to their view of the gravity of the offence.”[47] Westbrook argues that serious wrongs “gave rise to a dual right in the victim or his family, namely to take revenge on the culprit, or to make composition with the culprit and accept payment in lieu of revenge.”[48] He goes on to note, “This right was a legal right, determined and regulated by the court.” The courts could “fix the level of composition payment” making “revenge a contingent right, which was only revived if the culprit failed to pay.”[49] When talionic legal formulae occur in ANE legal texts they merely express that the punishment be proportional to the crime. This could involve punishment in kind (which would be proportional to the crime) but in most cases it would probably involve monetary compensation. The phraseology is compatible with either.

J. J. Finkelstein makes a similar point reflecting on what appears to be very harsh capital (and sometimes vicarious) sentences in the Code of Hammurabi and the absurdity and impossibility of putting them into practice. He states that Mesopotamian penalty prescriptions

were not meant to be complied with literally even when they were first drawn up, [but rather they] serve an admonitory function. If one would be bold enough to restate Hammurabi’s 230 as a direct admonition it might run to this effect: “woe to the contractor who undertakes construction and in his greed cuts corners.”[50]

There is evidence then to suggest that when talionic formulae occur in ANE legal texts they do not necessarily function as commandments to inflict literal mutilation in kind. They rather function as a kind of hyperbolic, ironical way of denouncing the crime and expressing a principle of proportionality.

The second reason for understanding the lex talionis in this fashion follows from the first. A careful reading of the HB suggests that something like what Westbrook and Finkelstein argue is true of the Torah. Exodus 21:29–32 deals with a case where an ox gores another person to death due to negligence on the part of the owner. This is a case of negligent homicide as opposed to premeditated killing; the penalty rendered is that the negligent person shall be put to death. However, immediately preceding this, provision is made for a monetary fine to be paid instead of execution. This suggests that the command to execute was not considered incompatible with payment of monetary compensation proportional to the offence. The phrase “he shall be put to death” is not always to be taken literalistically.

In fact, this practice of substituting a monetary fine for a capital offence was common. Deuteronomy 22:22 states, “If a man is found sleeping with another man’s wife” then “the woman and the man who slept with her must die.” Similarly, Lev 20:10 prescribes death for the crime of adultery, yet in the book of Proverbs it is made clear that this penalty could be substituted for monetary compensation (Prov 6:34–35). This again suggests that the phrase does not command or require execution but merely proportional punishment.

Another example occurs in the book of Kings. Here an incident is mentioned where a person has committed a capital crime. The sentence is announced in terms of the lex talionis as “a life for a life.” However, the immediate context shows what this sentence was: “It will be your life for his life or you must weigh out a talent of silver.” Sprinkle notes that “‘life for life’ in the sense of capital punishment has an explicit alternative of monetary substitution.”[51]

A final example occurs regarding the case of homicide. In Exod 21:13–14 the law clearly distinguishes between accidental and premeditated homicide. If a man who has struck another and killed that person (an analogous case to a man striking a woman and killing her) seeks sanctuary, he is to be provided it unless he “lay in wait” for his victim. Jackson notes that “lay in wait” refers to premeditated homicide.[52] In Num 35 where the same law is expounded in more detail, a homicide where a person “lay in wait” is contrasted with a homicide where the assailant “attacked him suddenly without enmity” (v. 22) which appears to be a reference to an intentional but not premeditated attack such as a “crime of passion.” The text goes on to prohibit accepting monetary compensation instead of executing the criminal only in cases of premeditated homicide. Walter Kaiser notes,

The key text in this discussion is Num 35:31: “Do not accept a ransom [or substitute] for the life of a murderer, who deserves to die. He must surely be put to death.” There were some sixteen crimes that called for the death penalty in the OT. . . . Only in the case of premeditated murder did the text say that the officials in Israel were forbidden to take a “ransom” or a “substitute.” This has widely been interpreted to imply that in all the other fifteen cases the judges could commute the crimes deserving of capital punishment by designating a “ransom” or “substitute.” In that case the death penalty served to mark the seriousness of the crime.[53]

Sprinkle makes the same point, “The availability of ransom seems to have been so prevalent that when biblical law wants to exclude it, as in the case of intentional murder, it must specifically prohibit it.”[54]

It appears, then, that in both ANE legal texts in general and in the Torah in particular, phrases such as “a life for a life” do not necessarily entail capital punishment. In cases where pre-meditated homicide is not involved and in cases where the homicide was unintentional but negligent, the Torah prescribes only that proportionate damages be imposed. This is significant because in the case under discussion, Exod 21:22–25, we are not dealing with a case of premeditated homicide. The text deals with an accidental act caused through negligence. This is evident from the way the case is presented in v. 22. It starts by affirming that men (plural) are fighting and strike a pregnant woman. The woman is a third party and not one of the group fighting. This observation is further strengthened by the fact that most ANE law codes that record the case deal with a single man striking a woman. Moses appears to depart from this paradigm in order to emphasize that the woman was a third party. The case, then, is of two people who are fighting each other and unintentionally strike a bystander causing a miscarriage. The case is not one of premeditated murder that by law required capital punishment but is of an unintentional killing brought about through negligence.

Some commentators attempt to escape this conclusion by arguing that the case is not one of unintentional homicide. Two reasons are usually provided. First, that Deut 25:11–13 records a case where a woman gets involved in a brawl between a man and her husband and it is argued that the same situation is envisaged here.[55] Second, it is argued that the verb “to strike,” נגף, in Exod 21:21 refers to an intentional attack upon someone and, hence, when the passage asserts that the men strike a pregnant woman, they do so intentionally.

Neither of these arguments is sound. The first is a non-sequitur. The fact that another law dealing with another case in Deuteronomy mentions a woman getting involved in a fight does not entail that this passage deals with such a case. The second is rendered problematic when one notes that just six verses later the verb נגף is applied to a goring ox: “The notion that a goring ox is punished for its deliberate offence is quite absent from the mind of the Biblical legislator.”[56] Moreover, even if the woman did intervene in the fight and was struck deliberately this would still not be a case of premeditated homicide.[57]

A third line of evidence favoring a non-literalistic interpretation of the lex talionis makes sense of the way the phrase is used elsewhere in the Scriptures. Leviticus 24, for example, states, “If anyone injures his neighbor, whatever he has done must be done to him: fracture for fracture, eye for eye, tooth for tooth. As he has injured the other, so he is to be injured.” This sounds like it enjoins literal punishment in kind. However, immediately the text goes on to elaborate, “Whoever kills an animal must make restitution, but whoever kills a man must be put to death.” Here we see that while in cases of intentional homicide the punishment is literally life for life, it does not rule out monetary restitution for damage done to another’s property. It must also be noted that interpreted literalistically this passage in fact contradicts the laws regarding assault. The punishment laid down in the Torah for assault is to pay monetary damages, not to inflict injury for injury upon the perpetrator. Hence, to make sense of this rule in its context the lex talionis must be understood as enjoining proportional punishment, whether that be capital punishment in the case of murder or proportionate compensation in cases of damage to person or property.

The same conclusion applies to Christ’s citation of the lex talionis in the Sermon on the Mount. Here the phrase “eye for eye” is contrasted with the rule “do not resist an evil person,” and Christ illustrates this latter rule with a case where a person turns the other cheek to a slap. Daube notes, “Supposing for a moment the maxim ‘Eye for Eye’ had then meant actual talion for mutilation and Jesus had intended to attack this principle, would the case of a slap in the face not have been an excessively weak illustration of his new position? Would it not have been absolutely necessary to give a far more serious example?”[58]

Similarly, Daube notes that none of the other cases Christ mentions, such as being sued for one’s cloak or being forced to walk a mile, fit a literal talionis either.[59] On the other hand, Daube notes that Christ’s statements do make sense when the talionis is understood as enjoining proportionate damages. In rabbinic law of the period, a slap on the cheek was viewed as a paradigm case of an insult where there was no actual harm or damage to the victim. Moreover, the rabbinic exegesis of the period ruled that one could sue a person who insulted him or her in this fashion for damages proportionate to the shame or damage done to their pride. Christ then appeared to understand the talionis in a non-literalistic fashion and stressed to his hearers not to be petty and prideful in its application.[60]

The above three lines of argument suggest that a non-literalistic interpretation of the lex talionis is supported by the genre of the text and the way the phrase is understood in the text itself and used elsewhere in the canon. This evidence by itself is insufficient. However, I think it is far more compelling when conjoined with three other facts about the immediate context of v. 23.

In the first place, the verse begins with the statement “you shall pay life for life.” As Sprinkle notes, the word translated “pay,” in the context of the surrounding passages, is best rendered as “to pay” as in “pay money.”[61] In the previous verse, the verb appears as, “he who is responsible shall pay whatever is laid upon him.” Verse 19 states that the assailant will “pay” an injured man’s medical bills and expenses. Verse 30 states he “will pay a ransom for his life.” Verse 32 states “he will pay thirty shekels of silver to his master.” When the word occurs again in the next chapter, it refers to paying bail. Sprinkle notes that, in addition, the context supports rendering the word “for” as it occurs in the phrase “life for life” in v. 25 as having the nuance “in compensation for.” In v. 36, it is used for compensation provided for the loss of an ox. In v. 37, it refers to the restitution paid in compensation for a victim’s loss. The context then supports reading v. 23 as referring to a kind of monetary or compensatory payment.[62]

The next thing to note is that a literalistic interpretation of v. 23 does not fit the context and renders the passage internally inconsistent whereas the traditional rabbinic exegesis coheres with the context perfectly. If one takes “life for life” to mean that a person is killed if he kills someone, then “wound for wound” or “eye for eye” would mean that assault is punished by assaulting the assailant and injuring the perpetrator in precisely the manner the victim was injured in. However, the text manifestly contradicts this. Only a few verses earlier, in v. 18, the law deals with a case where a person strikes another causing injury, and the punishment is that he pays compensation commensurate with the injury. It would seem odd that a deliberate attack on a man is punishable by compensation but an accidental blow to a woman warrants mutilation.

Compare this with the rabbinic interpretation. Verse 18 prescribes that a person who harms another by assaulting him or her, must compensate them for their injuries. Verse 23 states the same thing. Assaulting a woman requires that one pay commensurate compensation. The rabbinic reading therefore coheres with the context while the literalistic reading does not.

The final and perhaps the most compelling reason for the rabbinic interpretation is the text itself. Immediately after the lex talionis is proposed, the text seeks to apply it.

But if there is serious injury, you are to take life for life, eye for eye, tooth for tooth, hand for hand, foot for foot, burn for burn, wound for wound, bruise for bruise. If a man hits a manservant or maidservant in the eye and destroys it, he must let the servant go free to compensate for the eye. And if he knocks out the tooth of a manservant or maidservant, he must let the servant go free to compensate for the tooth. (Exod 21:23–26 NIV)

Verses 26–27 apply the principle expounded in vv. 23–25. If a person is struck in the eye and the eye is destroyed, then the assailant is required to compensate him or her for the value of an eye. Similarly, if a person knocks out his servant’s tooth he must compensate that servant for the tooth. This demonstrates that by stating “eye for eye” or “tooth for tooth” compensation is in mind. In this case, because the victim is a servant, and indentured servitude in Israel was the result of debt, the assailant is required to write off all financial debts his victim owes him. The context clearly understands the lex talionis as the payment of commensurate monetary compensation.[63]

Taken together these last three lines of evidence suggest that the phrase “eye for eye” is not intended to be taken literalistically. Taken literalistically the law contradicts itself. It uses language differently from the way the same phrases are used in the context, contradicts the surrounding laws, and applies itself in a manner contrary to its meaning. On the other hand, the rabbinical exegesis accords with the phraseology of the immediate context, coheres with the surrounding laws affirming the same basic principle with regards to assault, and also fits the immediate application of the principle in the very next verse. In light of these facts, it is best to understand the phrase “eye for eye, tooth for tooth, hand for hand, foot for foot, burn for burn, wound for wound, bruise for bruise” as a proverbial formula expressing the principle that (in this case) damages awarded be proportional to the harm inflicted.

2. Is feticide condemned as a minor offence? Harrison argues that the reference to a fine in v. 22 suggests that feticide did “not constitute a major crime at that time.”[64] The text of v. 22 provides no justification for this observation.

The word translated as “fine” in the NRSV has a broader meaning than our understanding of fine—it means punishment in general.[65] It is used in this text with an emphatic infinitive absolute, hence it is rendered, “the one responsible shall be strictly punished.” This is not the language of a trivial offence.[66]

Further, the text goes on to refer to the punishment. The offender must pay whatever the husband “demands.” This phrase certainly does not suggest compensation for a trivial offence. The very same phrase is used only eight verses later in the case of a goring ox. If the owner has been warned of the bull’s habit for goring and he does not keep it penned up, the punishment if the ox gores someone is that “the owner also must be put to death. However, if payment is demanded of him, he may redeem his life by paying whatever is demanded” (Exod 21:29b-30 NIV). The reference to paying a fine “demanded of him” in v. 30 is to money paid in compensation for homicide.

A final point to be noted is that this text punishes the destruction of a fetus. It explicitly states that a person who kills a fetus should be punished strictly. Punishment was only warranted if the action was a crime. Hence, under Jewish law killing a fetus was a crime. There is little justification for any inference from this passage to the conclusion that feticide was lawful.

Moreover, it appears that it is considered unlawful because of the moral status of the embryo/fetus. There are several reasons for thinking this is the case. Perhaps the most significant one is seen by examining the phrase “and he shall pay as the judges determine” (Exod 21:22 NRSV). This rendition of the Hebrew phrase by the NRSV is widely conceded to be problematic.

Firstly, the word rendered as “judges” by the NRSV is בפללימ. While the root of this word does refer to judging, the translation “judges” for בפללימ is not very well established from its other occurrences in Scripture. Moreover, Speiser notes that even if the word did mean “judges” it could not carry the whole force of “as the judges determine.” He suggests that rendering בפללימ as “judges” is an error analogous to interpreting the English word “judicious” as having the same meaning as “judicial” or interpreting “justice” as “judgment.”[67]

Secondly, not only is the meaning of judges not well established for בפללימ, rendering it as judges in v. 22 does not fit the context. The phrase “as the judges determine” introduces a tension into the text. It affirms that the offender shall pay what the husband determines and then immediately states he shall pay what the judges determine. This problem is exacerbated by Sprinkle’s observations that as a stylistic matter the body of case law in Exod 20:22–23:33 does not directly mention judges.[68]

A third reason for doubting the meaning of judges for בפללימ is that it contradicts other translations such as the LXX. The LXX rendition of the clause is not “as the judges determine” but rather “according to assessment.” In and of itself this is not decisive. I noted earlier that the LXX does at times differ from the MT. This fact alone does not automatically make such interpretations of the MT suspect. However, it does appear decisive when combined with the other reasons already cited. It is one thing to translate the MT in a way that contradicts the LXX when the meaning one is translating is well attested; but when one is using a meaning that is not well attested, which does not fit the context, and in a way that contradicts other ancient translations, it is problematic, especially because, as I will discuss shortly, בפללימ does have an attested meaning that fits the context and that agrees with the LXX.

Loewenstamm suggests that בפללימ may be translated as “an objective assessment.” Citing a study by Yalon, he notes that in Talmudic Hebrew the word בפללימ has the idea of “investigate or assess.”[69] Speiser, who suggests the word means “estimate, assessment, calculation,” makes a fuller argument for this conclusion.[70] Applying this idea, the text would read, “the one who is responsible shall be strictly punished, he shall pay whatever the husband lays upon him according to an assessment.” This interpretation is preferable to the NRSV for several reasons.

Firstly, as the studies of Speiser and those mentioned by Loewenstamm make clear, this meaning is well attested. Examining the several occurrences of this phrase and its various derivatives in Scripture, Speiser notes, “Every single reflex of the base form of pll finds its natural and at times the only possible and hitherto absent, explanation in the same underlying concept of ‘assess.’”[71]

Secondly, this meaning fits the context. I noted that “as the judges determine” renders the text contradictory, whereas the phrase “the one who is responsible shall be strictly punished, he shall pay whatever the husband demands according to an assessment” does not. This interpretation also fits the context well when one considers its overall structure.

The text begins with a case that has two protases, one where there is no harm and another where there is harm. Each protasis is followed by a subsequent apodosis rendering a judgment. The second apodosis renders a judgment and then spells out a method for assessing the penalty, the lex talionis. It makes sense then that the first apodosis would mention an assessment.

Thirdly, this translation makes sense of the LXX in two ways. First, it explains adequately why the LXX renders v. 22 as “according to an assessment.” Second, as I will argue below, the phrase “according to an assessment” also provides a plausible explanation as to why the LXX translators introduced the distinction between a formed and unformed conceptus into the text.

Verse 22 then is rendered, “the one who is responsible shall be strictly punished, he shall pay whatever the husband demands according to an assessment.” The text denotes that the person shall be punished by an assessment. The evidence we have suggests that this assessment was not based upon the value of the fetus to the woman but upon the age and level of development of the fetus.

Two lines of evidence suggest this. First, this was how contemporary legal codes of the time punished feticide. The ancient Hittite Law stated,

16. If anyone causes a free woman to miscarry—if [it is] the 10th month, he shall give 10 shekels of silver, if it is the 5th month he shall give 5 shekels of silver and pledge his estate as security. 17. If anyone causes a slave-women to miscarry, if [it is] the 10th month, he shall give 5 shekels of silver.[72]

The Hittite Law has a close geographical, temporal, and literary relation to the Mosaic Law. The Hittites lived in the same area as the Hebrews, and scriptural texts show they mingled with the Hebrews. This Hittite legal code was in place at the same time and in roughly the same area.

This shows that at around the same time and place that the Mosaic Law was drafted the legal practice determined the gravity of feticide by assessing the developmental level of the fetus. It is in this social and legal context that the Mosaic Law noted that the one responsible shall pay by an assessment. The most natural way of understanding this phrase is to understand it as referring to this type of method, one that Moses’ hearers would be familiar with.

The second line of evidence comes from the LXX. The LXX interprets the law in a manner very similar to that of the Hittite code except it draws the line at the time of formation as opposed to five months gestation. As I will argue, the reference to formation displays Hellenistic influence. Nevertheless, a mode of assessment based upon fetal age would explain why the interpreters drew the conclusion they did. If the law prescribed that the penalty is based on the age of the fetus and contemporary Hellenistic biology teaches that formation is a crucial stage in development where the conceptus is hominized, then one would interpret the law in the way the LXX does.

The above exegesis is reinforced when one notices how the law is presented in the Torah. The key contrast between v. 22 and vv. 23–25 is over who the victim is and how the damages will be assessed. Verse 22 deals with a case where it is explicitly stated that there is no harm to the woman. It is mentioned that the fetus is killed and the damages are assessed, not based on harm to the woman but on an objective judgment about the status of the fetus. In contrast, vv. 23–25 specify that if the woman is harmed damages are to be based upon the amount of damage to her. Therefore, the law does not appear to view the induced miscarriage as merely an offence against the woman. The law bases the seriousness of the offence not on how much anguish the woman has suffered but on objective judgments about the moral status of the embryo or fetus. This status is based on the level of development the conceptus has undergone, a feature it possesses independently of its mother. This means that it was wrong to induce a miscarriage because the embryo/fetus has moral status.

II. Does The Septuagint Mistranslate The Hebrew?

Harrison claims that the LXX is a mistranslation that transforms a text that condemns killing pregnant women into a text condemning feticide. I have already disputed her reading of the MT. However, her third claim raises the question of the relationship between the two texts.

In referring to the LXX as a translation, Harrison’s comments are unobjectionable. The LXX does not render the wording of the MT accurately and introduces a distinction that is not part of the text. However, this does not mean that the LXX misinterpreted the text; translation and interpretation are not the same thing. Mark Scott writes,

It is commonly recognized that, in many passages, the Septuagint presents, in the Greek lingua franca, a gloss or commentary rather than a literal rendering of the Hebrew text, as the translators were attempting to embody—in a widely accessible form—then-current applications of the Scriptures.[73]

If the interpreters of the LXX were trying to render an accurate commentary and faithful application of the law as opposed to a literalistic translation, then the pertinent question is not whether they translated it accurately but whether the LXX faithfully articulated its teachings and correct applications of them. I think that it did.

There are three major differences between the LXX and the MT. First, the MT does not explicitly specify the number of men in the brawl. It opens with, “if men [plural] are fighting and they strike a pregnant woman.” However, the LXX explicitly mentions that there are “two” men fighting. Second, the LXX renders the final clause of v. 22 as “according to an assessment,” whereas many English translations of the MT interpret this “as the judge determines.” Finally, the MT mentions harm done to the woman and the appropriate punishment. The LXX introduces the distinction between a formed/unformed conceptus.

None of these translations appears straightforwardly to involve an error in interpretation. The first is of little significance when one realizes that

a careful examination of the relevant Hebrew biblical texts reveals that when the verb nsh is used with the basic meaning “to contend,” or “to strive,” as opposed to “to fall into ruins,” no more than two adversaries are involved.[74]

The difference between the Hebrew for “men strive” and the Greek “two men fight” appears to be merely semantic. I addressed the second difference earlier where I noted that the LXX’s rendition of the final clause as “according to an assessment” is a correct rendition of the Hebrew. This leaves the final two, the omission of harm to the mother and the formed/unformed distinction. These are clearly the most important.

The LXX’s teaching about an assault upon a woman does not contradict the MT’s teaching on this question. While the LXX does not mention harm to the mother in this passage, causing harm to the mother falls readily under the other laws dealing with assault where an assailant is required to compensate his victim for damages suffered. Hence, its teaching on this question is essentially the same as the MT’s even if the presentation of it differs.

Nor does the teaching of the LXX regarding feticide contradict the teaching of the MT. The MT states that if a person kills a fetus he or she must pay a fine based upon an assessment. While the mode of assessment is not specified, evidence suggests that there existed a practice that based it upon the age of the fetus. The LXX does not contradict this. It states that if a person kills a fetus he or she must pay an assessment and it bases the assessment upon the age of the fetus.

The difference between the two is that the LXX specifies exactly how this assessment is to be carried out. It claims that when the conceptus is formed the payment must be a payment for homicide. The Hebrew is silent as to how the assessment is to be carried out so it does not deny that this is the correct way to carry out the assessment. Hence, the LXX is entirely compatible with the Hebrew here. As Scott notes, “This Greek interpretation of the passage reveals how the law had come to be applied over centuries of use, at least in the Alexandrian Jewish community.”

The distinction made between a formed and unformed conceptus strengthens this conclusion. The distinction appears to be drawn from Greek natural philosophy. Kapparis notes, “Formation was a crucial concept in connection with the human identity of the unborn in Hippocratic medicine.”[75] He adds,

In the understanding of many [Hippocratic doctors] the acquisition of human identity was not something that happened at birth but well before that, when the foetus was sufficiently formed to be considered a human being.[76]

Kapparis draws attention to numerous examples of the formed/unformed distinction in numerous ancient embryological writings. Galen, for example, noted that two contemporary studies, The Commentaries on the Demonstration and On the Views of Hippocrates and Plato, defended the view that “what is in the womb is already a living being when it is formed in all its members.” Similarly, the Hippocratic study On the Nature of the Child affirms that a conceptus “becomes a child” when it attains form. A similar view appears to be expressed by Socrates in Platonic dialogues.[77] The formed/unformed distinction appears in numerous other works. Soranus mentions the distinction and suggests that abortions should be performed only when the conceptus is unformed.[78]

Interestingly, authors who mentioned the formed/unformed distinction tended to place its occurrence at roughly the same time, though they differed on the precise details. Diogenes Laertius informs us of the Pythagorean view.

This first creation [the conceptus] is formed in forty days, and then, in accordance with the law of harmony, the baby is perfected and born after seven, or nine, or maximum ten months.[79]

Empedocles similarly argued that formation started on the thirty-ninth day and was completed on the forty-ninth. Asclepiades noted the formed/unformed distinction and suggested that for males formation occurred between the twenty-sixth and fiftieth days and females were formed around sixty days. The tract On the Nature of the Child stated a male fetus was formed after thirty days and female fetuses were formed on the forty-second day. The author of On the Seven Months’ Child stated a male conceptus was formed at forty days while a female was formed after this.[80]

Perhaps the most influential of Greek biologists was Aristotle. Aristotle developed the Hippocratic views with more sophistication. He argued that the soul was the life principle of the body. A conceptus began with a vegetative soul and then gradually acquired a sensitive soul. It became fully human when it achieved form, which occurred forty days after conception for a boy or ninety for a girl.[81] Aristotle’s views were based on empirical investigations. Other biologists from the period also based their views on empirical observation either from miscarriages and abortions that had occurred in humans or on analogy with the embryological development with animals.[82]

There appeared then to be an established distinction in ancient Greek embryology between a formed and unformed fetus. The similarity between the Hippocratic/Aristotelian position and the LXX can hardly be a coincidence. It appears Alexandrian Jews, utilizing the biological information of their day, concluded that a formed conceptus was a human being and hence applied the law accordingly. In many ways this is unsurprising because even with Palestinian Rabbinical Judaism, Aristotelian embryology was often appealed to by Jewish scholars. Several examples from the Talmud bear this out.

The first comes from Nid. 3:2–7. Here the question arises about how the cleanliness laws recorded in Lev 12 apply to a woman who has miscarried. The law prescribes that a woman who has given birth to a child is unclean for forty days if the child born is a boy and eighty days if it is a girl. The question raised is, when does miscarrying a fetus constitute giving birth to a child?

The answer given is that a miscarriage qualifies as the birth of a child if the conceptus has the form of a human being. It is stated that this happens on the forty-first day after conception. The justification provided for this ruling is precisely the kind of empirical studies that Greek biologists had appealed to (see Nid. 30b).

A second example occurs in Ker. 1:3–5. The law requires that after a woman has undergone her post-birth period of uncleanness she is required to make a sacrifice. The question is asked, does this apply if she miscarries a fetus? The answer is the same as in the previous case, after forty-one days the conceptus has form. At this stage, a miscarriage is considered the birth of a child.

The third example comes from Bek. 8:1. Here the issue is the application of Exod 13:12 where it states that a woman must redeem her first-born son with an offering. The question arises as to whether a child born to a woman who had miscarried previously is considered the first-born son. The answer is yes if the miscarried conceptus had not been formed which occurs at forty-one days after conception.

Four things then are evident. Firstly, in translating the LXX Alexandrian scholars aimed at “a gloss or commentary rather than a literal rendering of the Hebrew text.”[83] As stated above, they were “attempting to embody—in a widely accessible form—then-current applications of the Scriptures.”[84] Secondly, it was common practice even in Rabbinical Judaism to utilize Greek natural philosophy in applying the Torah to various issues. Thirdly, the dominant Greek natural philosophy placed an important stress upon form in determining the human status of a conceptus. Fourthly, the LXX appears to utilize this distinction in applying the Torah to the question of feticide.

The best explanation appears to be that Alexandrian Jews utilized Greek embryology in an effort to apply the Torah to the question of feticide. The law told them that if a person killed a fetus they had to be punished based on an assessment of the maturity of the fetus. The science of the day taught them that a conceptus was human when it attained human form around forty days post-conception. Hence, they concluded that if a person killed a formed conceptus this was homicide.

Consequently, the LXX is perhaps best seen as simply complementing the MT and offering an interpretation as to how to apply the law that it prescribes.[85] The scribes behind the LXX did not so much attempt accurate translation of the text but rather faithful interpretation of it to explain its requirements to others. The Hebrew text taught that if a man killed a fetus one was to base the punishment upon an assessment based upon its level of development. This is precisely what the Alexandrian Jews did. Utilizing the empirical information of the day they made such an assessment and concluded that early in the pregnancy it constituted homicide. In order to determine if their conclusion was mistaken or correct, the time of hominization must be assessed. It is not determined by examining the text. The text simply demands that the assessment be made. The question is whether the assessment was made correctly. Are there good grounds for holding that a formed conceptus is a human being? If there are then the LXX does propose a faithful application of the law.

Notes

1. Philo, “The Special Laws, 3,” in The Works of Philo Judaeus, the Contemporary of Josephus (trans. C. D. Yonge; Peabody, Mass.: Hendrickson, 1993), §§ 108, 109.
2. Athenagoras, Leg. 35; Tertullian, Apol. 9.8; Minucius Felix, Oct. 30.
3. Apos. Con. 7.3; cf. The Teaching of the Twelve Apostles, 5.
4. Epistle to the Archbishop of Mainz.
5. Jerome, Epist. 121.4; Lactantius, Opif. 12, 17; Gregory of Nyssa, On the Holy Spirit Against Macedonius; Cyril of Alexandria, De Adoratione in Spiritu et Veritate 8; Theodoret, Questions on Exodus 48; Ambrosiaster, QQ Veteris et Novi Testamenti 23; Augustine, Quaest. Hept. 2.80.
6. See Bonaventure, Commentarium in Librum IV Sententiarium, bk. 2, d. 31, dub. 4; Thomas Aquinas, Summa Theologiae 2-2, q. 64, art. 8.
7. See George Hunston Williams, “Religious Residues and Presuppositions in the American Debate on Abortion,” TS 31 (1970): 31-34.
8. John Calvin, Harmony of the Law, vol. 3, available online at http://www.ccel.org/c/calvin/comment3/comm_vol05/htm/TOC.htm (accessed Apr. 27, 2010).
9. Philipp Melanchthon, “Definitio Animae Usitata in Ecclesia,” in Corpus Reformatorum 13; Jacques Guillemeau, Child-Birth, 70-73; William Gouge, Of Domesticall Duties, Eight Treatises, 506; all cited in Williams, “Religious Residues,” 35, 46.
10. Beverly Wildung Harrison, Our Right to Choose: Toward a New Ethic of Abortion (Boston: Beacon, 1983), 136.
11. See Williams, “Religious Residues,” 20. Connery, in fact, suspends judgment on the question of whether the LXX is a mistranslation and he says nothing about Philo being behind the Didache. See John Connery, Abortion: The Development of the Roman Catholic Position (Chicago: Loyola University Press, 1977), 17-21.
12. Translation taken from Stanley Isser, “Two Traditions: The Law of Exodus 21:22-23 Revisited,” CBQ 52 (1990): 30.
13. Harrison, Our Right to Choose, 68.
14. Ibid.
15. James Rachels, Elements of Moral Philosophy (New York: Random House, 1986), 50.
16. Graham Spurgeon, “Is Abortion Murder?,” in The Religious Case for Abortion: Protestant, Catholic, and Jewish Perspectives (ed. Hamilton Gregory; Asheville, N.C.: Madison & Polk, 1983), 16.
17. Calvin, Harmony of the Law, vol. 3; see n. 8 above.
18. Umberto Cassuto, Commentary on the Book of Exodus (trans. Israel Abrahams; Jerusalem: Magnes, 1974), 275.
19. See Jack Cottrell, “Abortion and the Mosaic Law,” Christianity Today, March 16, 1973, 6-9; Paul Simmons, “Personhood, the Bible, and the Abortion Debate,” 3, online at http://www.rcrc.org/resources/publications/educational_series.htm (accessed May 17, 2010).
20. Harrison, Our Right to Choose, 68.
21. K&D 1:135.
22. Wayne House, “Miscarriage or Premature Birth: Additional Thoughts on Exodus 21:22-25,” WTJ 41 (1978): 108-23; Bernard Jackson, “The Problems of Exodus 21:22-25 (Ius Talionis),” VT 23 (1973): 271-303; Meredith Kline, “Lex talionis and the Human Fetus,” JETS 20 (1977): 193-201; Walter Kaiser, Towards Old Testament Ethics (Grand Rapids: Zondervan, 1983), 102-4 and 168-72; John Ellington, “Miscarriage or Premature Birth?,” BT 37 (1986): 334-37; J. Weingreen, “The Concepts of Retaliation and Compensation in Biblical Law,” Proceedings of the Royal Irish Academy 76 (1976): 1-11; Cassuto, Commentary on the Book of Exodus, 275; Gleason Archer, An Encyclopaedia of Bible Difficulties (Grand Rapids: Zondervan, 1982), 247-49; James K. Hoffmeier, “Abortion and the Old Testament Law,” in Abortion: A Christian Understanding and Response (ed. James K. Hoffmeier; Grand Rapids: Baker, 1987), 57; Norman Geisler, Christian Ethics: Issues and Options (Grand Rapids: Baker, 1989), 145.
23. Simmons, “Personhood, the Bible, and the Abortion Debate,” 3.
24. Russell Fuller, “Exodus 21:22-23: The Miscarriage Interpretation and the Personhood of the Fetus,” JETS 37 (1994): 169-84.
25. Ibid., 183.
26. Madeleine Flannagan and Glenn Peoples suggest that the fact that the ANE law uses similar phraseology to the Mosaic Law could be seen as evidence that all these laws referred to a premature birth and none referred to a miscarriage. I doubt this; first, no commentator of the laws in question, that I know of, has suggested such an interpretation. Second, a common paradigm in some of these laws is between a blow that causes a miscarriage and a blow that kills or harms a woman. In light of this, I suggest that the miscarriage interpretation is more likely.
27. Robert N. Congdon, “Exodus 21:22-25 and the Abortion Debate,” BSac 146 (1989): 140-42.
28. Fuller, “Exodus 21:22-23,” 182.
29. E.A. Speiser, “The Stem Pll in Hebrew,” JBL 82 (1963): 303.
30. Joe M. Sprinkle, “The Interpretation of Exodus 21:22-25 (Lex talionis) and Abortion,” WTJ 55 (1993): 249.
31. Raymond Westbrook, “Lex talionis and Exodus 21:22-25,” RB 93 (1986): 52-69.
32. Ibid.
33. Sprinkle, “The Interpretation of Exodus 21:22-25,” 244-45.
34. Kline, “Lex talionis and the Human Fetus,” 199.
35. Jackson, “The Problems of Exodus,” 275.
36. Ibid., 293.
37. It can be objected that these few rare occurrences are all we have to go on and indeed they are; however, the best response is to note this fact and claim that we do not have enough evidence to make a decisive rendition. It is not sensible to determine that, because insufficient evidence is all there is, one can go beyond what the evidence justifies.
38. A further point noted by Fuller (“Exodus 21:22-23,” 172-73) is that a standard paradigm in some ANE laws has a disjunction between a case where a blow is accompanied by a miscarriage and a blow where the woman is harmed or killed.
39. Harrison, Our Right to Choose, 68.
40. Spurgeon, “Is Abortion Murder?,” 16.
41. I use the word literalistic here in distinction to the word literal. Interpreting a passage in accord with the literal sense of the text in historical biblical exegesis does not preclude such things as metaphor or idiom. Literalistic interpretation does. This distinction is noted by Bruce Vawter: “The literal sense of a writer or speaker [is] the meaning he wished to convey by the words he used—not what the words themselves might mean independently of his use of them. The literal meaning of a metaphor is not what its component words signify by dictionary definition but what their combination means in a context that challenges the imagination. A metaphor metaphorizes, that is, it transfers the surface sense of its words to apply to another area of existence, an analogue. When I say it was ‘raining cats and dogs,’ surely no one would suspect I was affirming that the streets had been littered with the corpses of Pekes, Dalmatians and Tabbies after a recent downpour. Literalistically I had said that, literally I had not.” Bruce Vawter, “Creationism: Creative Misuse of the Bible,” in Is God a Creationist? The Religious Case against Creation Science (ed. Roland M. Frye; New York: Scribners, 1983), 72-73.
42. Nahum Sarna, JPS Torah Commentary: Exodus (New York: Jewish Publication Society, 1991), 126.
43. Israel Drazin, Targum Onkelos to Exodus (New York: KTAV, 1990), 215.
44. W. Gunther Plaut, The Torah: A Modern Commentary (rev. ed.; New York: Union for Reform Judaism, 2005), 571.
45. See Raymond Westbrook, “The Character of Ancient Near Eastern Law,” in A History of Ancient Near Eastern Law (ed. Raymond Westbrook; 2 vols.; Handbook of Oriental Studies; Boston: Brill Academic Publishers, 2003), 1:74.
46. Code of Hammurabi 196; cf. 199.
47. Westbrook, “The Character of Ancient Near Eastern Law,” 71-78.
48. Ibid., 78.
49. Ibid.
50. J. J. Finkelstein, “The Ox That Gored,” Transactions of the American Philosophical Society 71 (1981): 35.
51. Sprinkle, “The Interpretation of Exodus 21:22-25,” 239.
52. Jackson, “The Problems of Exodus,” 288-90.
53. Walter Kaiser, “God’s Promise Plan and His Gracious Law,” JETS 35 (1992): 293.
54. Sprinkle, “The Interpretation of Exodus 21:22-25,” 239-40.
55. David Daube, Studies in Biblical Law (Cambridge: Cambridge University Press, 1947), 108.
56. Jackson, “The Problems of Exodus,” 288.
57. A further point: given the medical technology of the day, it would be difficult to prove that a given miscarriage was in fact caused by a given blow. In light of this, it would be unreasonable to prosecute a person for premeditated homicide who struck a woman in a situation where a miscarriage occurred. Hence, prosecuting for the lesser offence of negligence would make more sense.
58. David Daube, The New Testament and Rabbinic Judaism (London: Athlone, 1956), 256.
59. Ibid., 257-58.
60. Ibid., 254-65.
61. Sprinkle, “The Interpretation of Exodus 21:22-25,” 233-53, esp. 240.
62. Ibid., 240.
63. One response to this is to suggest that this law refers only to indentured servants and not to free people; with a free woman, who is not a servant, a literalistic talion applies. One could perhaps bolster this with an appeal to the fact that ANE laws often prescribed different punishments for offences against different social classes. The problem here is that one of the major differences between the Torah and ANE laws is precisely this point. Unlike the other law codes, the Torah does not typically have a class stratified system of punishment for various crimes. Moreover, the laws in the preceding passages have told us that assaulting a free man is punished by a fine to compensate for injuries (see v. 18). So the suggestion that compensatory damages for the assault are limited to the lower classes is false. In light of this it is difficult to believe that an accidental assault upon a woman would be treated differently. One could not plausibly suggest that, based on ANE legal precedents, servants and free men have the same punishments but assaulting a woman is considered more serious. If anything, women are given a lower, not higher, status in ANE legal precedents.
64. Harrison, Our Right to Choose, 68.
65. Kline, “Lex talionis and the Human Fetus,” 196.
66. Ibid.
67. Speiser, “The Stem Pll in Hebrew,” 301-6.
68. Sprinkle, “The Interpretation of Exodus 21:22-25,” 246.
69. Samuel E. Loewenstamm, “Exodus XXI: 22-25,” VT 27 (1970): 359.
70. Speiser, “The Stem Pll in Hebrew,” 303.
71. Ibid., 304.
72. Hoffmeier, “Abortion and the Old Testament Law,” 44-45.
73. Mark Scott, “Quickening in the Common Law: The Legal Precedent Roe Attempted and Failed to Use,” Michigan Law and Policy Review 1 (1996): 204.
74. Nina Collins, “Notes on the Text of Exodus 21:22,” VT 63 (1993): 299.
75. Konstantinos Kapparis, Abortion in the Ancient World (London: Gerald Duckworth & Co., 2002), 44.
76. Ibid.
77. Ibid., 46, 87.
78. Ibid., 43.
79. Ibid., 39.
80. Ibid., 45.
81. Ibid., 17-18.
82. Galen sums up the method: “This is apparent in abortions and in the dissection of pregnant animals” (see Kapparis, Abortion in the Ancient World, 44). Similarly, the author of On the Nature of the Child wrote, “Many women aborted a boy shortly before the 30th day and it looked unformed, but those who aborted on the 30th day or afterwards, looked formed. On a girl, after the abortion, the formation of members is accordingly visible after the 42nd day” (ibid., 45).
83. Scott, “Quickening in the Common Law,” 205.
84. Ibid.
85. It is worth noting that this conclusion about the LXX being compatible with the MT would follow even if one accepts the variant reading that בפללים means “as the judges determine.” On this reading it is still the case that there is a monetary fine based on some objective assessment, one made by the courts. The LXX simply specifies how the assessment is to be made. Moreover, even if, contrary to what has been argued above, one holds to the view that the law does prescribe a harsher penalty for killing the woman than it does for the miscarriage it does not follow that the law considers a fetus to be less than a human. I noted previously that there is an important evidentiary difference between the two cases. In the case of the woman, an ancient Israelite judge could tell that the blow caused the death. In the case of a miscarriage, he could not. Hence, there would be a basis for a difference in punishment even if the fetus and woman were both considered human.