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Divorce in the NT

CHAPTER II
THE JEWISH LAW AND PRACTICE

By Dr. Box.

IN his discussion of this subject, which is contained in the first chapter of his book, [Christ's Teaching on Divorce, (chap. i.).] Dr. Charles has argued that Christ accepted as axiomatic the principle that the marriage-bond is automatically dissolved by the act of adultery; Christ, we are told, pronounced no censure on remarriage under such circumstances.

The contrary view, according to Dr. Charles's opinion, is absurd, and he does not hesitate to denounce those "ecclesiastics" who assert it as "lording" it "mercilessly over the heritage committed to them," and as "making void the teaching of Christ by their traditions." [The Teaching of the New Testament on Divorce, p. 34.]

The view that Christ sanctioned divorce for adultery is, of course, as Dr. Gore has pointed out, not new. What is new in Dr. Charles's discussion is the line of argument on which he relies to justify his position.

This is entirely based upon the construction of certain Jewish evidence which, as I hope to show, he has misunderstood and misapplied. At most, in my opinion, it amounts to ingenious special pleading, which will not bear the test of scientific criticism.

The problems involved in the marriage question, under the conditions of modern life, are complicated and intricate in the highest degree; and the attitude that faithful Christian people ought to take to the questions at issue is beset by many and serious difficulties. But the gravest disservice that can be rendered at the present time is to darken counsel by misrepresenting, however unwittingly, the principles on which the teaching of our Lord on the subject is based.

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Section I.

Marriage and Divorce in the Gospels

For the purposes of this discussion it is necessary that we should have before us the passages in the Gospels which embody Christ's teaching on the subject. The passages in question are four in number--viz., Matthew v. 32, xix. 3 ff.; Mark x. 3 ff.; and Luke xvi. 18. The most important of these are the parallel sections contained in Mark x. 3 ff. and Matthew xix. 3 ff. The former of these runs as follows:

And there came unto him Pharisees, and asked him, Is it lawful for a man to put away his wife? tempting him. And he answered and said unto them, What did Moses command you? And they said,
Moses suffered to write a bill of divorcement, and to put her away."
But Jesus said unto them,
For your hardness of heart he wrote you this commandment. But from the beginning of creation, male and female made he them. For this cause shall a man leave his father and mother, and shall cleave to his wife; and the twain shall become one flesh: so that they are no more twain, but one flesh. What, therefore, God hath joined together, let not man put asunder."

[And in the house the disciples asked him again of this matter. And he saith unto them,
Whosoever shall put away his wife, and marry another, committeth adultery against her: and if she herself shall put away her husband, and marry another, she committeth adultery."]

(Mark 10:3 fwd)

The logion embodied in the last [bracketed] clause in this extract, giving the private teaching of Jesus to the disciples, reappears in Luke xvi. 18, which runs as follows:

"Everyone that putteth away his wife, and marrieth another, committeth adultery; and he that marrieth one that is put away from a husband committeth adultery."

(Luke 16:18)

The parallel passage to the Markan extract given above is contained in Matthew xix. 3 ff., which runs as follows:

And there came to him Pharisees, tempting him, saying,
Is it lawful for a man to put away his wife for every cause? But he answered and said,
Have ye not read that he which made them from the beginning, made them male and female, and said, For this cause shall a man leave father and mother, and cleave to his wife, and the twain shall become one flesh? What God hath joined together let not man put asunder." They say to him,
Why, then, did Moses command to give a bill of divorcement and to put her away?" He saith unto them,
Moses for your hardness of heart suffered you to put away your wives; but from the beginning it hath not been so. And I say unto you, whosoever shall put away his wife, except for fornication ¹, and shall marry another, committeth adultery; and he that marrieth her, when she is put away, committeth adultery."

[1. Or, "saving for the cause of unchastity."]

(Matt. 19:3 fwd)

Lastly, in Matthew v. 32, we have another passage (in the "Sermon on the Mount") which also contains the excepting clause that is peculiar to the first Gospel:

"Whosoever shall put away his wife, except for the cause of fornication,
maketh her an adulteress; and whosoever marrieth her when she is put away committeth adultery.

[1. Or, "saving for the cause of unchastity."]

(Matt. 5:32)

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The "Q" Source Document Hypothesis

It will be evident at once, if we compare the Markan and Matthean accounts, that there are certain differences, both as regards the teaching and the circumstances attending it. Dr. Charles insists that on the whole the Matthean form is the more original.

This section possibly, but not certainly, belongs to the Q element in the Gospels--i.e., roughly that part of the Gospels which contains the teaching and discourses of Jesus, and is preserved mainly in the Gospels of Matthew and Luke (but not in Mark), and most fully in Matthew. Thus the Sermon on the Mount may, as a whole, be assigned to this source (Q). Unfortunately, however, we do not possess the Q document in its original shape. We only know Q as it has been used and worked up in the first and third Gospels.

Not improbably Mark was to some extent influenced by Q (which is the oldest source embodied in the Gospels), and on rare occasions cites from it, though it was not the purpose of the second Evangelist to embody the Q material in his Gospel as a whole. It was rather his intention, probably, to supplement Q; and in the rare cases where he does cite from this source, he may be doing so from memory.

In the case of the parallel accounts we are considering--viz., Mark x. 2-12 and Matthew xix. 3-9--it is difficult to decide whether these are ultimately based on Q or not.

The fact that there is no corresponding section in Luke militates against the view that Mark is here dependent upon Q. On the other hand, the section contains important teaching which a priori we should have expected to find in Q. But more probably the real representation of the Q teaching on Divorce is contained in the logion, which is embodied in Luke xvi. 18, Matthew v. 32, Mark x. 11-12. [See the Oxford Studies in the Synoptic Problem (ed. by Dr. Sanday), p. 177.]

Mark, in fact, does cite Q in these last two verses, but supplements the Q saying by the narrative of the circumstances leading up to it (Mark x. 2-9).

Thus it is probable that the Markan narrative (Mark x. 2-9) is primary, and not derived from Q; and that Matthew (xix. 3-9) is using Mark. The real evidence of Q on the subject is to be found in the logion: "Every one that putteth away his wife, and marrieth another, committeth adultery; and he that marrieth one that is put away from a husband committeth adultery" (Luke xvi. i8, Mark x. ii; cf. Matt. v. 32).

As Q is the earliest source embodied in the Gospels, (it may have been produced as early as A.D. 45), this is in some respects the most valuable piece of evidence we have for our Lord's teaching on the subject:

"Q is perfectly intelligible as a document written to supplement the living tradition of a generation that had known Christ. Within a dozen years after the event something of the kind would be needed. It is not intelligible as a document thirty or forty years later, when the events which Q presupposes as matter of common knowledge were a generation old"

(Streeter in Oxford Studies, 212 f.)

And it is to be noticed that in the Lukan form, which, it is generally agreed among scholars, represents the oldest form of the Q teaching, the prohibition is absolute. There is no qualification whatever. The Q material embodied in the first Gospel had been modified and reshaped, probably, before it was used by the compiler of St. Matthew.

The original Q "...was a Palestinian document, reflecting the conditions of life in Palestine, and would therefore have been specially cherished in Palestinian circles. But it would clearly have required expansion and modification, if it continued to be used [before the compilation of our present Gospels] as a separate document. This probably happened. It was used for catechetical purposes, and reshaped for such use."

[ See St. Matthew (Century Bible), by G. H. Box, p. 17.]

And it was probably in this reshaped form that it was used by the compiler of Matthew.

It is possible that Matthew xix. 3-9 is not primarily based upon the Markan parallel (Mark x. 2-9), but was derived from an expanded and reshaped form of Q.

In the Matthean form the question of divorce arises in connection with the controversy that divided the schools of Hillel and Shammai, the former taking the view--theoretically at any rate--that a man might put away his wife for practically any cause, if she displeased him; while the latter limited the exercise of the right to the case of unchastity. The question, as given in Matthew, "Is it lawful for a man to put away his wife for every cause?" would well suit such a connection, and may be an original element in Q.

But much more important than this is the question whether as a whole Mark preserves a correct account of our Lord's teaching. In the Markan account, and also in Luke xvi. 18, the prohibition of divorce is absolute. In Matthew (xix. 9, cf. v. 32) a limiting clause is introduced, except for fornication or unchastity. This clearly is a case of editorial addition or modification. It formed no part of our Lord's teaching in its original form, which is preserved correctly in Mark and Luke.

Dr. Charles, in fact, admits that it is a gloss, introduced into the text by the compiler of the first Gospel. But he contends that it is a correct gloss, intended to guard the passage from misinterpretation. The argument by which he justifies this contention we shall proceed to examine.

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Section II.

Dr. Charles insists, quite rightly, that the question propounded to Jesus by the Pharisees, as given by the first Evangelist, was a test question, based upon the disputes of rival Jewish parties. The question runs "Is it lawful for a man to put away his wife for every cause?"

As has already been pointed out, the schools of Hillel and Shammai, at the time of our Lord's public ministry probably, and certainly later, were [18/19] sharply divided on the subject of the grounds which would justify a man in divorcing his wife.

This difference of attitude was due to, or at any rate was justified by, a difference of interpretation of the law in Deuteronomy xxiv.1-3:

When a man taketh a wife and marrieth her . . . if she find no favour in his eyes because he hath found some unseemly thing in her, he shall write her a bill of divorcement.

(Deut. 24:1-3)

Now, the expression rendered here as 'unseemly thing' is a strange one in Hebrew, and gave rise to different interpretations. The words (Hebrew 'erwath dabar), literally rendered, mean "uncleanness of a thing"--i.e., according to the commonly accepted exegesis, "unseemly thing," or anything unseemly.

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Tthe Shammai and Hillel Schools

This was interpreted by the Hillelites in the lax sense to include any kind of uncomeliness which might be so regarded in the husband's eyes.

The Shammaites, on the other hand, understood the Mosaic enactment in a stricter sense. Following a slightly different reading of the Hebrew text, they interpreted the expression rendered "unseemly thing" to mean "a matter of unchastity"---i.e., illicit sexual intercourse with another, or, in the case of a married woman as presupposed in the text, adultery.

[The two Hebrew words were inverted and read "debar 'erwah"="a matter of unchastity." Cf. Mishnah,Gittin ix. 11.]

On this passage Dr. Charles observes:

These verses [Deut. xxiv. 1-3] gave the Jew the right to divorce his wife on the ground that he had found in her "some unseemly thing." Now, that this unseemly thing did not mean adultery is clear from the fact that the adulterous wife and her paramour were to be put to death, whereas the wife in this case is divorced on the ground of some unseemly thing, and set free to marry another man. The meaning of the phrase "unseemly thing" is obscure. It seems to have involved something indecent, but certainly something short of adultery [ Italics mine.] (op. cit., p. 10 f.).

Now, Dr. Charles admits that the Shammaites interpreted the phrase "unseemly thing" to refer to adultery and adultery alone. It follows, therefore, that this school found sanction in the text of the Law itself for enforcing divorce for adultery. Further, though the Hillelites, interpreting the expression in a lax sense, found in it sanction for divorce on other grounds than adultery, there is no reason to suppose that they would have excluded adultery as not falling under the category of "some unseemly thing."

Dr. Charles is consequently wrong in his assertion that the expression involved "certainly something short of adultery." He attempts, indeed, to defend this exegesis by reference to another enactment of the Law which deals with a special case of adultery (Deut. xxii. 22). But he has misunderstood its import, as I shall proceed to show.

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Law Practice in Jesus' Day

Further, Dr. Charles does not seem to realize that at the time of our Lord's ministry, and subsequently, the Law in practice was administered by scribes or "doctors of the Law," who were themselves members of the school of either Hillel or Shammai. The scholars who belonged to these schools were themselves in most cases the judges who carried out, through the Rabbinical courts, the enactments of the Law. They not only expounded the Law, but administered it.

It is true that at this time the Great Sanhedrin, which constituted the supreme court, included a proportion of Sadducees as members, who represented a tradition distinct from that of the Hillelite and Shammaite schools. But scribes of both the Rabbinical schools were also members of this body, and, indeed, became increasingly powerful in it as time went on.

Outside the Great Sanhedrin both Shammaites and Hillelites were supreme. There is good reason to believe that at the time of our Lord's ministry the school of Shammai was dominant.

As by this school "unchastity" or adultery on the part of a married woman was recognized as the sole valid ground for divorce under the law of Deuteronomy xxiv. 1-3, divorce for adultery must have been the normal practice in such cases.

The Hillelites, in pressing for an extension of grounds for divorce, took up a position similar to that of our modern "Divorce Law Reformers." But their position did not finally prevail till after A.D. 70, when the whole traditional law of Judaism was finally redacted in accordance with Hillelite views.

Dr. Charles describes the Shammaite exegesis of Deuteronomy xxiv. 1-3 as "indefensible." It is necessary for his argument to do so. But such a contention is really irrelevant.

The ancient Mosaic Law was necessarily reinterpreted from time to time to meet changing circumstances. All codes of law must be thus modified and adapted if the law is to be effective. What is really important is to discover how an ancient enactment was commonly understood and officially administered at a particular time.

There can be no doubt that at the time of our Lord's ministry the practice of allowing, or rather enforcing, divorce for adultery on the part of a wife was commonly recognized as normal legal procedure.

It is true that in the Mosaic Law adultery is treated in a special category by itself, as an offence so heinous that, under certain circumstances, the guilty parties were to be punished by death (cf. Deut. xxii. 22, Lev. xx. 10). Ancient Israelitish law was very severe in cases of this kind, and the penalty was in earlier times mercilessly enforced (cf. Ezek. xvi. 38-40, xxiii. 45)

The Law also prescribed the death penalty in cases of unchastity other than adultery, such as seduction, rape, etc. (cf. Deut. xxii. 23 ff.).

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Strict Law Observance in Jesus' Day?

Dr. Charles believes that this ruthless law was enforced in the time of Christ--at any rate it was still valid (though, he admits, frequently evaded)--as the only law recognized as applicable to such cases. It was, he thinks, abrogated shortly after the close of our Lord's ministry, when compulsory divorce was substituted for the death penalty.

On this contention he founds his exegesis of the Gospel accounts of our Lord's teaching on divorce. By implication, he argues, the special case of adultery is excluded in all Christ's utterances on the subject. If his thesis about the continued validity of the old Jewish law in the time of Christ cannot be sustained, the whole of his argument collapses.

Referring to Deuteronomy xxii. 22, and xxiv. 1, 2, he states his thesis as follows:

The first of these passages prescribes the penalty of death for the adulterous wife and her paramour; the second allows the husband to divorce his wife for some lesser offence than adultery. . . . The first law, as I have said, prescribed death as the punishment of the adulterous woman and her paramour. This stern law remained on the Jewish statute-book till A.D. 30, as we find in both the Babylonian (Sanh. 41a) and Jerusalem (Sanh. i8a, 24b) Talmuds. After this date the death penalty was abolished, probably owing to the pressure of the Roman authorities. Thus the law was in force during our Lord's ministry, and for one or more years after its close. This fact is full of significance. The Mishnah (Sanh. vii. 2) states on the authority of Eliezer ben Zadok that this penalty was inflicted early in the first century of our era.

After A.D. 30 the husband was compelled by Jewish law to divorce his adulterous wife (Sotah vi. 1). He was allowed no other option. That the extreme penalty of the law was frequently evaded through compromise and heavy compensation there can be no doubt. Notwithstanding, this was the only law regarding the adulterous wife acknowledged as valid by the religious authorities of Judaism during our Lord's ministry. This is the first fact which it is important to recognize in the study of this question, and which must always be taken account of in connection with it. [ Italics mine.]

[ Op. cit., p. 5 f.]

This paragraph is full of misstatements and mistaken inferences, as I shall proceed to show.

Dr. Charles finds Gospel recognition of this alleged Jewish law in the section which appears in the fourth Gospel about the Woman taken in Adultery, (The Pericope De Adultera, John vii. 53-viii. 11 ) on which more will be said presently.

Meanwhile it will be useful to notice what far-reaching inferences Dr. Charles deduces from his construction of the Jewish evidence. He says:

We conclude . . . that in all our Lord said in regard to divorce and remarriage He recognized the validity of this law, which we know was still accepted as valid by the religious leaders of Judaism. According to this law the adulteress and her paramour were to be put to death. In this case there was no doubt as to the dissolution of the marriage. The law treats the marriage bond as absolutely broken, and therefore as dissolved, by the act of adultery, and even to the drastic means of inflicting the penalty incurred our Lord takes no exception. Remarriage, of course, in such a case would follow.

But if the extreme penalty of the law was evaded, as in the section in John [i.e. Jn 8:1-11], and only divorce followed on the absolute breach of the marriage tie, remarriage followed as a matter of course in Judaism. To this, again, our Lord makes no objection.

[ Op. cit., p. 8.]

By this ingenious argument Dr. Charles reads into the Gospel text of the Markan and Lukan passages a number of implications which have the effect of making these passages say what in fact they do not say. The whole validity of the argument depends upon the construction of the Jewish evidence: and it is just here that Dr. Charles has gravely misstated and misunderstood the real facts.

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Section III.

Confusion over Legal Case Types

(1) In the first place, Dr. Charles has not correctly stated the procedure enjoined in the Mosaic Law as applicable to cases of adultery:

(a) Cases of Proven Adultery

The enactment to which he refers, and on which his argument is based (Deut. xxii. 22), contemplates the case of two persons caught in the very act (cf. John viii. 4).

If a man be found lying with a woman married to an husband, then they shall both of them die, the man that lay with the woman and the woman: so shalt thou put away the evil from Israel.

(Deut. xxii. 22)

But such cases must have been of extremely rare occurrence.

(b) Cases of Suspected Adultery

Far more frequently the case of suspected adultery arose. The adultery might be suspected, but difficult to prove.

To meet such cases as these, the procedure described in Numbers v. 11-31 (the ordeal by bitter waters) was adopted. Now, by the first century of our era this procedure had been modified in various ways, and was applied to suspected cases simply as a test, with a view to eliciting a confession.

The suspected woman was taken to the local court by her husband, and there his charge was made. The court assigned two doctors of the Law to escort the parties to the Great Sanhedrin in Jerusalem. The purpose of the hearing before the Sanhedrin, which held its meetings in a chamber adjoining the Temple precincts, was to evoke a confession. The Sanhedrin appealed to the woman and suggested various causes which might have induced her to go astray, and finally asked her to confess.

If she admitted her crime she was divorced from her husband, and lost her property rights under the marriage settlement. On the other hand, if she refused to undergo the ordeal, and there was circumstantial evidence of her guilt, she was compelled to separate from her husband.

In this case--that of the woman suspected of adultery--it is clear that even on the strict and literal interpretation of the Mosaic Law, the death penalty would not, in any event, have been inflicted. And, as a matter of fact, within the last century of the second Temple's existence, if not earlier, the penalty actually imposed upon the guilty wife was compulsory divorce.

Consequently, divorce for adultery, confessed or proved, was normal legal procedure in the time of Christ. A similar conclusion may be derived from the story of Joseph's suspicions about the Virgin Mary, as described in Matthew i.

Support from the Mishnah

The evidence for what has just been stated regarding Jewish practice on this matter can be found in the tractate of the Mishnah known as Sotah.

It may be objected that this evidence must be received with a certain amount of caution, when an attempt is being made to reconstruct the state of things existing in the time of Christ. The Mishnah itself is not a contemporary document, but was only put into its present shape about the end of the second century A.D. This is true. Caution is necessary.

It must be remembered, however, that the Mishnah embodies much old material, some of which goes back to pre-Christian times. But when due allowance has been made for this margin of possible uncertainty, the evidence is sufficiently clear that the state of things, as described above, was in existence.

It must be remembered that the ordeal was a rite which could be carried out only within the Temple. With the destruction of the latter in A.D. 70 it necessarily came to an end. But it is clear that before this happened the rite had undergone a long history.

During the last days of the dying Jewish State, when the armies of Rome were threatening Jerusalem, the Sanhedrin, under the presidency of the famous Rabban Jochanan ben Zakkai, abolished the rite entirely. As the Mishnah states,

"when adulterers became numerous, the 'ordeal of the bitter waters' ceased, and it was R. Jochanan ben Zakkai who abolished it."

(Sotah ix. 9)

The Mishnah quotes Hosea iv. 14 in this connection.

I will not punish your daughters when they commit whoredom, nor your brides when they commit adultery; for they themselves go apart with whores, and they sacrifice with harlots; and the people that doth not understand shall be overthrown.

(Hosea 4:14)

In fact, before these last dark days, during the earlier period it appears that immorality had spread among the people; the judges had become corrupt, the administration of justice suffered, and general demoralization set in.

Queen Helena (circa 30-56 A.D.)

It was part of a movement to stem this tide of immorality, perhaps, that led Queen Helena of Adiabene, a proselyte to, and a munificent patroness of, Judaism, to present a golden tablet to the Temple on which was engraven the passage from the Law (Num. v. 19-22) about the ordeal by bitter waters (see the Mishnah, Yoma iii. 10).

This action was probably dictated by a desire to revive the rite, which had, apparently, fallen into abeyance. But before this happened, time must be allowed for the rather elaborate Rabbinical modifications of the old enactment to have grown up.¹ These were in the direction of mitigating the severity of the ancient law, the extreme penalties of which had long since fallen into abeyance.

[1. i.e., sometime, probably, between A.D. 40 and 50: Queen Helena was converted to Judaism about A.D. 30 and died in A.D. 56.]

If Christ, then, categorically denounced divorce, and remarriage after divorce, as a breach of the Divine Law, His words cannot be minimized by asserting that divorce for adultery is excluded from the purview of His words. It was a well-known and normal practice of the properly constituted Jewish courts of law at the time when He spoke.

If He had desired to uphold the validity of the old Mosaic enactment, as against the milder practice which had taken its place, He would have said so plainly. But there is not the slightest hint in the Gospels that He would have sanctioned such a view.

On the contrary, the incident described in John 7:53-8:11, shows clearly enough that He could not be driven, even in argument or theoretically, to countenance such barbarous severity.

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Stern Law Enforcement until 30 A.D.?

(2) Dr. Charles quotes a passage which appears in both the Babylonian (Sanh. 41a) and Jerusalem (Sanh. 18a, 24b) Talmuds to justify his assertion that the "stern law" (which prescribed death to the guilty parties caught in the act of adultery) "remained on the Jewish statute-book till A.D. 30." After this date "the death penalty was abolished." And he concludes from this piece of evidence that "the law was in force during our Lord's ministry, and for one or two more years after its close."

Now the passage cited from the Talmuds reproduces an ancient tradition. What it states is that "forty years before the destruction of the sanctuary [Temple] the right of inflicting capital punishment was taken away [from Israel or the Sanhedrin]." This is the form in which the tradition is given in the Jerusalem Talmud. It there appears in the midst of Rabbinical discussions as to the infliction of certain kinds of death penalty, according to the Law.

It is inserted as a sort of warning rubric to guard against possible misconception on the part of readers that these punishments were actually inflicted in the later days of the Jewish commonwealth.

In the Babylonian Talmud it appears in a somewhat similar connection. The point at issue is the ruling of Jochanan ben Zakkai on a certain legal question:

"Was he, then, a member of the Sanhedrin?"

the Talmud proceeds:

"...and is there not a Baraitha [i.e., an old tradition] that the years (age) of Rabban Jochanan ben Zakkai amounted to one hundred and twenty? Forty years he was engaged in business, forty years he studied (as a disciple), and forty years he taught (as a teacher). And there is also a Baraitha that forty years before the destruction of the Temple, the Sanhedrin went into exile, and sat in a shop."

R. Yishak b. Abudimi said, 'This does not mean that they lost the power of inflicting fines, but they lost the power of inflicting capital punishment.'

[Cf. also T. B., Shabb., 15a; Aboda zara, 8b.]

Now, it is obvious that in all these passages "forty" is not an exact, but a round number. This is especially clear in the extract from the Babylonian Talmud, just given, where "forty years before the destruction of the Temple" occurs in close connection with the division of Jochanan ben Zakkai's life into three periods of forty years each. There is no reason to suppose that Jochanan ben Zakkai actually lived for so long a period as one hundred and twenty years, or that the division of his life into three periods of forty years each is anything but an artificial one. The use of the number forty both in Bible and Talmud in this way is well known. Next to the number "seven" it is the number of most frequent occurrence in the Bible.

"In Talmudical literature it is often met with, in many instances having been apparently used as a round number, or as a concrete and definite expression in place of the abstract and indefinite 'many' or 'some,' and hence becoming a symbolical number."

[ Cf. the Jewish Encyclopædia, v. 438, s.v. "Forty, the number." A good instance of its use as a round number is the following. In T. B., Gitt. 58a it is said that in the war of Bar Kokba forty measures of phylactery blocks were found on the heads of the slain at Bethar.]

It is no doubt in the latter sense that the number "forty" is used in describing the loss by the Sanhedrin of the power of inflicting capital punishment. The exact period is not defined.

The tradition simply means that for a long (but undefined) period before the destruction of the Temple in A.D. 70 the Jewish Sanhedrin had lost the power to inflict capital punishment. This probably happened in A.D. 6, when Judea became a Roman province, and was governed by a Roman procurator. From this time, it is probable, the right to inflict capital punishment was reserved to the Roman governor. The Roman Government was extremely jealous of this right, as, indeed, it was bound to be if it intended to exercise the full powers and responsibilities of government.

Clear evidence that this power was actually vested in the Roman governor at the time of Christ's ministry is furnished by the Gospels themselves in the account of our Lord's trial; nor is there anything to suggest that this reservation was a recent innovation, introduced by Pontius Pilate. We may therefore subscribe with confidence to the verdict of Dr. Israel Abrahams --a very high authority in these matters-- who says:

"It is not probable that the death penalty for adultery was inflicted at all in the age of Jesus."

[ Studies in Pharisaism and the Gospels, p. 73.]

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An Exceptional Case of Stoning

It is true that the Mishnah (Sanh. vii. 2) does cite a single case of an execution for adultery which is said to have taken place in the period before the destruction of the Temple. This passage, which is noted by Dr. Charles, runs as follows:

R. Eliezer b. Zadok said: "It happened in the case of a priest's daughter who had committed adultery that she was surrounded with faggots and in that manner burnt." But it was replied: "The court at that time did not possess accurate knowledge."

[(1) Cf. Lev. xxi. 9:

"And the daughter of any priest, if she profane herself by playing the harlot, she profaneth her father; she shall be burnt with fire."

Lightfoot (on Matt. xix. 8) says that the priest's daughter referred to in the Mishnah extract given above was "not married," in which event it would not have been a case of adultery.

But Rashi (on Lev. xxi. 9) explains that the law would only have been applied in the case of a priest's daughter who was either betrothed or married. The Rabbis were divided on this point, but all agreed that the Law would not have been applicable to a priest's daughter who played the harlot, if she were neither betrothed nor married.]

The parallel passage in the Tosefta (ix. 11a), runs:

Said R. Eliezer, the son of R. Zadok: "When I was a child I was once carried on my father's shoulder to see a priest's daughter who had committed adultery; they surrounded her with faggots and so burnt her." They replied: "Thou wast a child, and a child cannot give evidence."

We cannot fix exact dates for this Eliezer's life. It is certain, however, that in the last days of Jerusalem he was a full-grown man, active in business life and well known. He may have been born about A.D. 36 or 37, and the incident referred to may have taken place about A.D. 41, when he was a mere child. If this was the case, it occurred when Herod Agrippa I. was King of Judæa (41-44), and when government by the Roman procurator had temporarily given way to that of a native prince.

Agrippa wished to be regarded as a pious Jew; there was a sort of revival of religious observance during his brief reign. One evidence of this may have been a zealous desire to punish such a flagrant case of adultery as that referred to, in accordance with the ancient law. In any case it was an isolated incident of so exceptional a character as to be singled out for special mention.

The Babylonian Gemara on the passage suggests that the court that sanctioned this execution was a Sadducean one. This is by no means unlikely. The honour of the priesthood was involved, and this was a matter that would especially appeal to a body of Sadducees, especially at a time of religious revival.

In any case the Rabbinical authorities who discuss the incident manifest extreme reluctance to accept it as valid evidence. It must be remembered that, though the Rabbis codify all the cases given in the Law in which the death penalty is prescribed, and discuss in great detail the different ways in which it should be carried out, all this is purely speculative and theoretic in character. The whole discussion is unreal:

"That capital punishment was a rare occurrence in the latter days of the Jewish commonwealth is patent from the statement in the Mishnah that a court was stigmatized as 'murderous' if it condemned to death more than one human being in the course of seven years.

Indeed, Eleazar b. Azariah applied the same epithet to a court that executed more than one man in every seventy years; and his famous colleagues, Tryphon and Akiba, openly avowed their opposition to capital punishment, saying: 'Had we belonged to the Sanhedrin [during Judæa's independence] no man would ever have been executed,' as they would always have found some legal informalities by which to make a sentence of death impossible."

- Dr. Mendelssohn, the Jewish Encyclopædia, iii. 558,
s.v. "Capital Punishment."]

This statement truthfully represents the spirit that animated the Rabbinical teachers and judges. It may be added that when Josephus casually states (Apion ii. 25) that the penalty for adultery is death, this dictum is, to use Dr. Abrahams's words, [1] [(1) Op. cit., ibid.] "rather an antiquarian note than a record of experience."

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The Pericope De Adultera

(3) Dr. Charles relies upon another piece of evidence in support of his contention that Christ recognized the validity of the old Mosaic enactment which prescribed death for the guilty parties detected in adultery.

This is the story contained in John 7:53-8:11 (the PA).

The Story of the Woman Taken in Adultery, (as is well known), forms no part of the true text of the Gospels. But it has widely been regarded as an authentic incident in the life of Christ. ¹

Internally it presents certain difficulties which, in the opinion of some scholars, militate against its authenticity as a piece of history. These have been formulated by Dr. Alfred Edersheim:

(a) That a woman taken in the act of adultery should have been brought before Jesus (and apparently without witnesses of her crime);

(b) that such an utterly un-Jewish, as well as illegal, procedure should have been that of the "Scribes and Pharisees";

(c) that such a breach of law, and of what Judaism would have regarded as decency, should have been perpetrated to "tempt" Him; or

(d) that the Scribes should have been so ignorant as to substitute stoning for strangulation as the punishment of adultery;

(e) lastly, that this scene should have been enacted in the Temple,

... presents a veritable climax of impossibilities.'

[Life and Times of Jesus the Messiah, ii. 163. (1883)]

Dr. Edersheim's language is, perhaps, over-emphatic. ² The story may, however, well be a piece of Christian Midrash (i.e., composed from authentic traditions), intended to reflect Jesus' attitude to the question of adultery and its punishment. In this sense it is doubtless authentic enough.

It may be pointed out, too, that the implications of the story are that the woman has already been tried and convicted by a competent court, and, presumably, divorced. We read:

'And the Scribes and Pharisees brought unto him a woman taken in adultery, and when they had set her in the midst, they say unto him, Master, this woman was taken in adultery, in the very act.¹ Now Moses in the law commanded us that such should be stoned. But what sayest thou? This they said tempting him, that they might have to accuse him.'

[1. Note the emphasis on this point. This fact would bring the case under the category of Deuteronomy xxii. 22.]

(John 8:3-6a)

Obviously this is not a trial scene. The trial is over. And the mere fact that the woman is at large makes it evident that the death penalty prescribed by the Mosaic Law has not been carried out. Presumably the woman has been compulsorily divorced, and her case was a notorious one. ³ The Scribes and Pharisees produce this notorious "case" in order to entrap Jesus in argument.

Clearly they expected our Lord to be placed in a difficulty by their question. Why? Christ had in controversy accused the Scribes and Pharisees of making the law of God "of none effect" by their traditions. The substitution of divorce for the death penalty in such a case as the one produced was against the express letter of the Law. Jesus -- so it would appear -- would therefore be driven to say either that the injunction of the Law ought to have been carried out, or to sanction the Rabbinic method of compulsory divorce.

In any case it would seem to them that Christ was on the horns of a dilemma. If He assented to the literal wording of the Law He would appear to sanction that "hardness" of heart which He had already repudiated in His teaching on the subject. On the other hand, if He accepted the milder punishment of divorce, He would be convicted of contradicting His own express teaching. ⁴

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Jesus avoids Approving Either Option

Jesus, as a matter of fact, refused to accept either alternative. ⁵ He refused to condemn the sinner in words which silenced her accusers, and which find an echo in the dictum of a later Rabbinical authority -- the famous Akiba (second century A.D.) -- who, referring to 'the ordeal' [Numbers: Trial of Bitter Waters], is reported to have said:

"Only when the (accusing) husband is himself free from guilt will the waters be an effective test of his wife's guilt or innocence"

(Sifre, Nasi, 21; Sotah, 47b).

What is clear from this narrative is that Christ refused to sanction any of the penalties, prescribed or accepted, for the crime of adultery--either the death penalty or divorce. ⁶ The act itself is, of course, regarded as a sin. But instead of penalizing the sinner, he bids her "sin no more."

[Akiba is quoted by Dr. Abrahams, op. cit., p. 74. Dr. Abrahams [also] discusses the incident of the woman taken in adultery in Hastings' Dictionary of Religion and Ethics, i. 130. He takes the view that the woman had not yet been tried by a court.⁷

But the procedure suggested above seems more natural, and whichever view be adopted it makes little difference to our argument. Abrahams adds (referring to the date given for the loss of inflicting capital punishment by the Sanhedrin -- i.e., A. D. 30): "Whatever be thought of this exact date, there is no doubt that the death penalty was neither pronounced nor inflicted for adultery in the time of Christ." ⁸ ]

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Modern Footnotes: (courtesy of Nazaroo)

1. This is the Classic position, popular even today among Christiain apologists: That the story was an "addition" to John, but from authentic 'oral' or other (lost) records. Box however carefully avoids assenting to it. He dismisses the story as unhistorical on the grounds given by Dr. Edersheim further below. But Edersheim's position would leave us no choice but to reject it as uninspired fraud, since it presents itself as history, not a parable or 'midrash':

2. Even Box is uncomfortable with Edersheim's language. But he has consented to the essence of the argument. We reproduce it in full here. It comes from a footnote in Life and Times of Jesus the Messiah, (1883, corrected version) in Book IV, Chapter 7 (Jn 7:37-8:11):

The reader will observe, that the narrative of the woman taken in adultery, as also the previous verse (St. John vii. 53-viii. 11) have been left out in this History - although with great reluctance. By this it is not intended to characterise that section as Apocryphal, nor indeed to pronounce any opinion as to the reality of some such occurrence. For, it contains much which we instinctively feel to be like the Master, both in what Christ is represented as saying and as doing.

All that we reluctantly feel bound to maintain is, that the narrative in its present form did not exist in the Gospel of St. John, and, indeed, could not have existed. For a summary of the external evidence against the Johannine authorship of the passage, I would refer to Canon Westcott's Note, ad loc., in the 'Speaker's Commentary.'

But there is also internal evidence, and, to my mind at least, most cogent, against its authenticity - at any rate, in its present form. From first to last it is utterly un-Jewish. Accordingly, unbiased critics who are conversant either with Jewish legal procedure, or with the habits and views of the people at the time, would feel obliged to reject it, even if the external evidence had been as strong in its favour as it is for its rejection.

Archdeacon Farrar has, indeed, devoted to the illustration of this narrative some of his most pictorial pages. But, with all his ability and eloquence, his references to Jewish law and observances are not such as to satisfy the requirements of criticism. To this general objection to their correctness I must add a protest against the views which he presents of the moral state of Jewish society at the time.

On the other hand, from whatever point we view this narrative - the accusers, the witnesses, the public examination, the bringing of the woman to Jesus, or the punishment claimed - it presents insuperable difficulties:

- That a woman taken in the act of adultery should have been brought before Jesus (and apparently without the witnesses to her crime);
- that such an utterly un-Jewish, as well as illegal, procedure should have been that of the 'Scribes and Pharisees';
- that such a breach of law, and of what Judaism would regard as decency, should have been perpetrated to 'tempt' Him; or
- that the Scribes should have been so ignorant as to substitute stoning for strangulation, as the punishment of adultery; lastly,
- that this scene should have been enacted in the Temple,
presents a veritable climax of impossibilities.

I can only express surprise that Archdeacon Farrar should have suggested that the 'Feast of Tabernacles had grown into a kind of vintage-festival, which would often degenerate into acts of licence and immorality,' or that the lives of the religious leaders of Israel 'were often stained' with such sins.

The first statement is quite ungrounded; and as for the second, I do not recall a single instance in which a charge of adultery is brought against a Rabbi of that period. The quotations in Sepp's Leben Jesu (vol. v. p. 183), which Archdeacon Farrar adduces, are not to cases in point, however much, from the Christian point of view, we may reprobate the conduct of the Rabbis there mentioned.

(1) The first thing we may fairly observe here is that Edersheim's recommendation is worthless as to where to get more info on "external evidence" . Westcott's Speaker's Commentary on John has several pages on the text of John, but only a few brief paragraphs on the PA. Westcott's textual evidence is in fact second hand from F.J.A. Hort, and he later distanced himself from Hort's excesses:

Westcott on Revised Version NT (1882) < - - click here for more on Westcott.

We would be far better off consulting a modern and less biased presentation of the textual evidence, such as that found in Hodges:

Hodges on Jn 8:1-11 < - - Click here for Textual information.

(2) The state of Textual Criticism was primitive at this time. The field was under the sway of men like Tregelles and Hort who followed the school of Griesbach, but opposing scholars (Scrivener, Burgon, Miller) were being downplayed and ignored. The most important discoveries (the papyri etc.) hadn't been discovered. The last 100 years have seen an uneasy dominance of eclectic methods by liberal critics like B. Metzger, while many evangelical Christians and conservative scholars like Hodges have preferred the Traditional Text (Textus Receptus) .

(3) Edersheim's characterization of the PA as "un-Jewish" is baseless. The real question is the passage's correspondance to the rest of John's Gospel. Here it shows multiple overlaps in phraseology and grammar, and its content (no exorcisms, focus on confrontation with authorities, exchange with an individual) is exactly typical of John. From a literary standpoint, the irony, clever wording, and profound innuendo is the Johannine signature par excellence.

(4) By "un-Jewish", Edersheim refers to its divergence from anecdotes and opinions found in the Talmud (c. 200 A.D.). But we must qualify this test by the obvious fact that the Talmud (and modern Rabbinical Judaism) was born out of the failed Roman/Jewish war and the destruction of the Temple and priesthood. Judaism was radically changed by this great catastrophy. The opinions and practices of the Central Jewish authority in the time of Jesus were completely overhauled and all but obliterated. Only a handful of fragments of earlier traditions survive, and these must be carefully and cautiously interpreted.

(5) Problems with "historicity" which Edersheim lists were first proposed in the late 1700s and early 1800s by German higher critics. But these complaints are misdirected. The "historicity" of the passage is moot, when the same critics classed the entire Gospel to be "unhistorical": a kind of "theological fiction", or re-telling through the eyes of later Christian thought. In other words, if the passage were indeed "unhistorical" this would have no bearing on it being part of the original Gospel. As early as the 1830s, other textual critics noted this logical flaw regarding "historical credibility". Edersheim's points had been discredited nearly 40 years earlier by more competent critics.

(6) The consultation of Jesus is really not unhistorical or suspicious, given that the Scribes and Pharisees are portrayed in all Gospels as constantly manufacturing traps and confronting Jesus. This trap is uncannily similar to the one regarding taxes to Caesar.

(7) The illegality of the "procedure" also loses weight next to the stoning of Stephen, along with the riots surrounding Paul, documented in Acts.

(8) The "decency of Judaism" is irrelevant, given that the Gospels consistently portray the Jewish authorities as plotting Jesus' murder, even paying bribes to Judas.

(9) The later Talmud tradition of "strangulation" instead of stoning is not Biblical and the only case recorded documents a Biblical "burning", not a strangulation. There is no contemporary evidence that strangling was preferred in Jesus' time.

(10) The Temple was the scene of confrontations with Jesus over many points of doctrine. Contrary to Edersheim, (and consistent with Acts etc.) it seems a natural place for this episode. Where else would they try to find and publicly entrap Jesus?

3. Box's argument that it is not a trial scene has surface plausibility, but the case is not strong enough to be sure. The Pharisees may simply be expressing their confidence in a conviction, not that one has already taken place. But his second observation is quite important and worthy of attention. Their confidence in a "no contest" situation indeed seems to indicate a 'celebrity scandal' was involved here. The obvious candidates are either Queen Herodias (whom Herod has already passed up for her daughter in public, and who pushed the beheading of John the Baptist), or her daughter Salome, (who publicly humiliated Herod in asking for John's head instead of the queenship or some more normal thing). Either could have been an attractive bait to dangle in front of Jesus before the crowds.

4. Box here rightly insists that Jesus' public teaching on divorce is the necessary background for understanding the dynamics of the incident.

5. This again is an astute observation. Jesus reluctantly hears the case and gives a ruling, and that ruling is itself an insoluble dilemma (John 8:7b).

6. Another good point. Jesus does not order divorce, anymore than He orders a stoning. "Sin no more." is all we are going to get.

7. Honesty compels Box to make note that Abrahams disagrees as to whether a trial has already taken place or not when they bring her to Jesus. This shows again that nothing can be taken for granted regarding the meaning and interpretation of the Pericope De Adultera. On the other hand, Box benefits from Abrahams' support regarding the lack of enforcement of stoning (see below).

8. This is the real reason Box cites Abrahams. But of course Abrahams also wants to downplay the bad behaviour of the religious authorities at the time of Jesus. This is the real agenda behind sidelining the Pericope de Adultera: It shows the religious leaders, particularly the lawyers and Pharisees in the worst possible light, callously placing the woman at risk, possibly even falsely accusing her (see Story of Susanna) just to entrap Jesus.