The Difference Between Capital Punishment And Abortion (1)

Since Roe v. Wade (and Doe v Bolton) in 1973 those who believe that the constitutional protections to “life, liberty, and the pursuit of happiness” extend to humans in utero (in the womb) have been called “pro-life.” Since 1973 it has been argued that to be consistently pro-life one must also oppose the capital punishment or the death penalty (the taking of a legally guilty human life by duly authorized civil authorities). There are plausible arguments against capital punishment but it is source of surprise that reasonable people find this objection compelling. First of all, Christians ought to be reluctant to embrace this argument since the Word of God clearly teaches capital punishment. God himself instituted the death penalty for sin in Genesis 2:17, “for in the day that you eat of it you shall surely die.” Not only did God institute the death penalty, he executed it himself. The serpent lied (Gen 3:4) by denying God’s Word, “you shall not surely die.” Indeed, the very gospel promise in Genesis 3:15 involved the execution of the death penalty, “he shall strike your head and you shall strike his heel.” This, of course, was figurative language for the execution of the penalty. God the Son incarnate promised to take that death penalty in our place, as our substitute, but the penalty would be executed nonetheless.

God finds sin so abhorrent that, according to Genesis 6–9, he wiped out the entire “world that then was” (2 Pet 3:6), i.e., certainly the inhabited world, which was nothing but the execution of the death penalty on a massive scale, leaving behind only Noah and his covenant house (8 people) to begin humanity again, after the fall, in a recapitulation of the garden and the fall. As part of that re-institution narrative God declared,

And for your lifeblood I will require a reckoning: from every beast I will require it and from man. From his fellow man I will require a reckoning for the life of man. Whoever sheds the blood of man, by man shall his blood be shed, for God made man in his own image (Gen 9:5–6).

Whether one thinks, as I do, that there were organized civil governments in the world between the fall and the flood and that this language reflects the re-institution of capital punishment in the post-diluvian world, this passage certainly authorizes capital punishment. It is essential to note that the place in redemptive history where capital punishment was reinstituted: before Moses. Far too often Christian opponents of capital punishment write and speak as if the only biblical for the death penalty is found in the 613 (as the rabbis counted them) commandments of the Torah. This is not correct. We have already seen that capital punishment was invoked at the very beginning of the biblical story. The Noahic epoch in redemptive history is part of that era which Paul considers to belong to the period before the law. This is what he means when he says, “for sin indeed was in the world before the law was given” (Rom 5:13). “The law” refers to the giving of the Mosaic law, the 613 commandments not to the existence of any law whatever. He has already said explicitly that the moral law was revealed in nature (creation) and is therefore known universally because it is inscribed in the human conscience (Rom 1:18–2:16). He writes, “They show that the work of the law is written on their hearts” (Rom 2:15). For Paul the very existence of a holy God, who revealed his law to everyone, implies the necessity of capital punishment: “Though they know God’s decree that those who practice such things deserve to die, they not only do them but give approval to those who practice them” (Rom 1:32). The frame of reference is established in 1:26–27, “…For their women exchanged natural relations for those that are contrary to nature; and the men likewise gave up natural relations with women and were consumed with passion for one another, men committing shameless acts with men and receiving in themselves the due penalty for their error.” The sexual immorality in view here is contrary to nature, contrary to the creational order. In other words, we do not need Moses to tell us about sin or capital punishment. God’s law was revealed to Adam and in creation and to all his image bearers long before Moses.

Given Paul’s understanding of nature and grace, of natural law, and of the consequences of sin (“the payment for sin is death” Rom 6:23) we should not be surprised to see him unequivocally endorsing the use of capital punishment by that most pagan civil magistrate, Caesar. When he wrote Romans, Nero (37–68 AD) was Caesar. This is significant. It is not as if Paul endorsed the use of capital punishment only by regenerate, Christian magistrates, e.g., (putatively) Constantine (272–337 AD). He writes:

For there is no authority except from God, and those that exist have been instituted by God. Therefore whoever resists the authorities resists what God has appointed, and those who resist will incur judgment. For rulers are not a terror to good conduct, but to bad. Would you have no fear of the one who is in authority? Then do what is good, and you will receive his approval, for he is God’s servant for your good. But if you do wrong, be afraid, for he does not bear the sword in vain. For he is the servant of God, an avenger who carries out God’s wrath on the wrongdoer (Rom 13:1b–4; ESV).

There are, I take it, Libertarians and Libertines (notice the conjunction, they are distinct groups) who are either ignorant of Romans 13 or who would that it was not in holy Scripture but Scripture it is. In this passage, the Apostle Paul not only endorses the existence of civil magistrates but recognizes the considerable power they have over all their citizens. This passage only makes sense when we recognize Paul’s robust doctrine of natural revelation and natural law. He knew who and what Nero was when he wrote Romans under the inspiration of the Holy Spirit. He knew what he was saying when he wrote that there is “no authority that is no from God.” We may suppose reasonably that even in the 50s AD, when he wrote these words, he could see that, at some point, the conflict between the cross and the crown would cost him his life. Thus, Paul’s words here are not mere theory because Caesar’s government and sword unjustly put righteous Paul to death by the sword (literally) in the Appian Way, outside of Roman c. 64–65 AD.

Paul’s theological frame of reference here is the covenant of works. Our relation to the civil magistrate is not that of grace (however much modernity has substituted the magistrate from God and made him the benevolent giver of all good things) but of works. So long as we obey the civil law, we shall have no difficulty with the magistrate. Even when the magistrate acts unjustly he is still a divinely-instituted authority. Paul could hardly be plainer: “do what is good and you will receive his approval.” This is nothing but “do this and live.” Remember, Paul wrote these words to the Christian minority in Rome. The Christians were despised by the pagan Romans. About a decade after he wrote these words, the Roman Christians were to be used by wicked Nero as a scapegoat for a fire that he set as part of a corrupt building program.

When Paul says, “for he does not bear the sword in vain” his words are both figurative and literal simultaneously. They are figurative insofar as Nero himself did not execute criminals any more than the mayor of San Diego puts people in jail. San Diego has a police chief and police officers whose job it is to keep the streets safe for law-abiding citizens. They make arrests, they turn over the arrested to the county jail and the corrections officers put the arrested into jail. Should the death penalty ever actually be exercised again in California it will be by the authority of the governor.

The sword to which Paul refers, as I mentioned above, was a literal sword. Under the Roman empire, non-citizens (e.g., the two malefactors on either side of Jesus) were crucified and citizens (e.g., Paul) were beheaded. When Paul wrote “bears the sword” he was referring to the right and duty of the magistrate to perform his function under the natural, creational pattern. It is the natural, creational duty of the magistrate to remove some people from society. Under Mose temporary and typological administration of the covenant of grace there was an explicit list of crimes for which one might receive the death penalty. The Mosaic civil laws and punishments, however, were specific to the Mosaic epoch of redemptive history. They “expired” (WCF 20.4) and they “no longer” obligate the civil magistrate.

Critics of the death penalty like to exaggerate the list and give the impression that we are so enlightened as to be beyond such an extensive list. They might be surprised by the number of types of crimes for which one is eligible for capital punishment in the most enlightened state of California:

  1. murder committed for financial gain
  2. previously convicted of first/second degree murder
  3. multiple murders in same proceeding
  4. bomb, explosives, grave risk
  5. for purposes of avoiding lawful arrest or attempt to escape lawful custody
  6. murder intentional and involved the infliction of torture
  7. intentional killing of peace officer, federal law officer/agent, fireman in performance of duties
  8. and defendant should have known or knew official status of victim
  9. victim was a juror in any court of record in local, state, or federal system in any state and the murder was intentionally carried out in retaliation or prevention of the victim’s official duties
  10. the murder was intentional and perpetrated by means of a firearm being discharged from a motor vehicle intentionally at another outside the vehicle with intent to kill
  11. witness of crime intentionally killed to prevent retaliatory testimony at criminal proceeding
  12. retaliation against judge or former judge of this state or any other state, prosecutor, etc.; state officials or officials of any local government of this state or any other state for reasons relating to their office
  13. lying in wait
  14. especially cruel, atrocious, heinous; racial
  15. committed along with robbery
  16. kidnapping, rape, sodomy, oral copulation, burglary, performance of a lewd act upon a child under the age of 14
  17. arson, train wrecking; carjacking
  18. intentionally poisoned
  19. mayhem
  20. rape by instrument
  21. member of a street gang murdering to further activities of the gang

This list varies from Moses’ but it is just as extensive.

The reader will notice that I have not once appealed to specifically Mosaic legislation to justify capital punishment. All the proofs come from Scripture which speak to the eras before or after Moses, i.e., before the institution of the Mosaic theocracy or after its expiration. There is no need to appeal to Moses to justify capital punishment since it is a matter of creational or natural justice. Caesar was not to execute Mosaic penalties upon the basis of Mosaic, theocratic laws but natural punishment on the basis of natural law, which all the Roman senators and even wicked Nero himself knew by nature, by virtue of being made in the image of God, by virtue of being rational creatures, even though fallen and pagan.

Next time: the connection to abortion.

3 comments

  1. L0ts of thought-provoking material here

    Surely the simplest example of God’s use of the death ‘penalty’ is the Flood. God kills but He has not authorised anyone else to do so – indeed disapproved of their ‘lawlessness’

    Next there is the Mosaic code which requires the Israelite society to kill eg adulterers. The punishment is required (but, under the watchful eyes of Jesus, the authorities choose to slink away. Much more can be made of this – evidence etc)

    I think these two are the simplest. To argue that Genesis 2:17, “for in the day that you eat of it you shall surely die.” is God himself instituting the death penalty for sin, is surely less useful when facing various theological hues

    It is of course at the heart of Reformed theology, and as such to be taken seriously, but it is an interpretation that others might dispute and thereby take the discussion away from capital punishment.

    (Those of a different hue will say that God was warning Adam and Eve along the lines of a doctor warning a very ill patient “If you unhook yourself from these tubes and stop taking your medicine” you will surely die. This would be a comment on life without God, which is life without Life, ie death. Similarly the wages of sin would then mean ‘the consequences of..’ rather than ‘the penalty for’ sin)

    Thus the simplest thing is to use Noah and Moses as the basis for penalties – not Eden?

    • Richard,
      I did appeal to the flood. See above.

      No, Moses should not be included in the “simplest“ and the best arguments. The Mosaic covenant was intentionally temporary and typological (illustrative) of heaven and future realities. The theocracy anticipated the church but it was never meant as a pattern for civil government. That is why the WCF says what it says:

      4. To them also, as a body politic, he gave sundry judicial laws, which expired together with the State of that people; not obliging any other now, further than the general equity thereof may require.

      In contrast, the moral law (summarized in Ex 20; Deut 5; Matt 22:37–30) is perpetual and abiding.

      Thus we confess:

      5. The moral law doth forever bind all, as well justified persons as others, to the obedience thereof; and that, not only in regard of the matter contained in it, but also in respect of the authority of God the Creator, who gave it. Neither doth Christ, in the gospel, any way dissolve, but much strengthen this obligation.

      The civil and ceremonial (religious) laws were never intended to be applied after the death of Christ.

      We can see in them God’s righteous judgment on sin and they illustrate that how the magistrate might apply the law but we must ground our argument in creation or the very thing for which we are argument expires with Moses.

      As to the Garden, Scripture is clear that the penalty for sin is death. Death entered the world because of the fall. God executed the penalty upon all of us in Adam. Death is the right word. See Ephesians 2:1-4.”…dead in sins and trespasses.”

      This aspect of the argument is not conclusive perhaps but it’s not speculative. The argument from Gen 9 seems irrefutable. “Shall” is legal language. It means “must.” The cumulative case seems overwhelming, especially when we consider Romans 13.

    • Thank you very much for reminding me of Gen 9 and Rom 13. I look forward to digesting yours fully

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