Lex Talionis

In Exodus 21:22-25 we find a passage where people have argued both sides of the abortion debate. It reads:

“If men who are fighting hit a pregnant woman and she gives birth prematurely but there is no serious injury, the offender must be fined whatever the woman’s husband demands and the court allows. 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.”

Abortion-rights advocates argue this passage actually demonstrates that the unborn child is not viewed as a full person, morally or legally. Their argument is that the fetus is treated like a piece of property. Namely, in the first scenario, “A,” where there is “no serious injury,” this refers to the woman’s estate after having been struck. A miscarriage has happened but she is okay. Thus a fine is levied as a payment for the loss of the fetus as with a property loss. In the second scenario, “B,” this is taken to mean a “serious injury” caused to the woman, thus the lex talionis, “the law of equal payment” is invoked to cover all possibilities. In this case the “life for life” phrase is applied to the woman, whereas the fetus in scenario “A” is treated as property. On this rationale, certain religious advocates for abortion-rights say that the woman’s life should take precedence, and that abortion is not a moral issue. Yes, the woman’s life should take precedence, for it is with her that the power to give resides toward the child; but no, even this interpretation cannot reduce the humanity of the unborn. To do so would be for this passage to be used to deny every other witness in the Scripture that undergirds the image of God status, the nephesh of the unborn. Neither the unborn, nor any image-bearers of God, are ever treated as property in Scripture. To do so equals classic eisegesis. To reify (treat as property) the unborn is a reactionary take before you are taken ethos, not the power to give.

To sum up the pro-abortion interpretation of the two scenarios in Exodus 21:22-25:

In scenario “A” there is “no serious injury” inflicted on the pregnant woman, but she miscarries. A fine is levied against the offender for the loss of the fetus, but the fetus is treated as property, not as a human being. In scenario “B” there is a “serious injury” caused to the woman. The fetus is already dead, and the lex talionis of “equal payment” of “life for life” applies to the woman as a human being, but not to the fetus.

But as Meredith Kline points out in an article “Lex Talionis and the Human Fetus” (Journal of the Evangelical Theological Society, September, 1977), this is not what the text says. In fact, he leads off his article with an opposite view:

“The most significant thing about abortion legislation in Biblical law is that there is none. It was so unthinkable that an Israelite woman should desire an abortion that there was no need to mention this offense in the criminal code …

“This law, found in Exodus 21:22-25, turns out to be perhaps the most decisive positive evidence in Scripture that the fetus is to be regarded as a living person.”

Kline designates the two scenarios as “A” and “B,” as I reflected above. And he points out that the hinge words are those (translated in the NIV) as “strike” and “injure.” When it says that the fighting men “strike” the woman, the Hebrew verb in use is nagap. It is not the ordinary term for hitting or striking someone, but its usual reference in other contexts means “to strike with death” or “to cause fatal divine judgments.” Context determines the appropriate translation in Hebrew, and the subject of scenario “A” is the miscarried or prematurely born child. The woman has been fatally struck – she is dead – and in the process she delivers a premature child due to the trauma. Thus the focus of this law is on the well-being of the untimely born child – one who should have still been unborn, awaiting the completion of the pregnancy.

In scenario “A” there is “no serious injury” (to the unborn). Kline points out that the Hebrew term here is ason. It is a rare term, only used in three other instances, located in Genesis 42 and 44 in reference to Jacob’s fear for the “injury” or “harm” that might have befallen his son Benjamin. Jacob feared a calamitous accident, not some normal occurrence. In this sense, it is parallel to the calamity of miscarriage, and as well, to the potential loss of a child. Thus, both the terms nagap and ason are unusual terms, and Moses uses them to describe with precision the subject of his concern – the prematurely born child. This is consistent with the Bible’s whole treatment of the unborn, and the parallel between the unborn and the prematurely born is as natural as the parallel language used often (at least 30 times that I have noted; cf. Isaiah 33:11) in Scripture between “conception” and “birth.”

Some abortion-rights advocates then say that this reduces the woman to property, because in scenario “A” the woman is dead, the child is fine, and the husband receives a payment for the loss of his wife’s life. However, this misreads the very nature of redemption and lex talionis. What is happening is that the husband is provided by law, in the case of unintentional manslaughter, for financial compensation due to the loss of his wife. Her life cannot be restored, and it was not premeditated murder, so the lex talionis is referred to specifically in view of this known outcome. Had the husband wanted to demand the life of the men who were fighting, and had the court allowed, they nonetheless would have had the option to flee to a city of refuge. The justice present here is something almost wholly absent today in the United States – compensation for the victims, a modicum of payment required of the offender to ease the suffering of the living victim, and to serve as a means of deterrence for future folly. And such lex talionis would also benefit a woman who lost her husband to an act of manslaughter.

In scenario “B,” the reference is thus to the possible outcomes of various forms of serious ason to the child, and the lex talionis is invoked to cover all contingencies. The purpose of lex talionis is to set the basis for the ransom price of the offender’s life – what economic levy they had to endure to make up for the loss to the victim – the unborn in this case, since scenario “A” already addressed the husband’s wife. Finally, when the text says “life for life,” the Hebrew is nephesh tahath nephesh. And as Chapter Three has given evidence, the unborn qualify fully as nephesh.

To sum up the proper exegesis and interpretation of Exodus 21:22-25:

In scenario “A” the woman is struck dead, but there is “no serious injury” to the prematurely born child. A fine is levied against the offender for the loss of the woman’s life, in view of lex talionis. In scenario “B” the prematurely born child also suffers “serious injury,” and the offender is fined according to the lex talionis nature of the injury caused.

In both cases, “life for life” is applied, nephesh for nephesh, as both mother and unborn child are full image-bearers of God, with equal protection under the law for an equal humanity. The Bible countenances no war between mother and child in competing definitions of the worth of human life based on a pagan “achievement ethic.”

Psalm 139 and the Presence of Yahweh

Exodus 21:22-25 is one of those very specific and otherwise obscure passages in the Mosaic law, and its use of terms is unusual, thus we do not have easy reference to immediately know its exact nuances. But I believe the exegesis of the text is overwhelming in its protection of the humanity of the prematurely born child. It is consistent with everything we have seen in Scripture so far, and inconsistent with none of it. Dr. Kline muses that it might be the most “decisive positive evidence” for the “living person” status of the fetus in Scripture. I think its positive nature lies in a case where the language of nephesh specifically addresses the unborn almost by happenstance. In a more general use of the language, but in a better context, I think that Psalm 139 is the best specific and most thorough review of how the Bible regards the unborn. It reads:

O LORD, you have searched me
and you know me.
You know when I sit and when I rise;
you perceive my thoughts from afar.
You discern my going out and my lying down;
you are familiar with all my ways.
Before a word is on my tongue
you know it completely, O LORD.

You hem me in – behind and before;
you have laid your hand upon me.
Such knowledge is too wonderful for me,
too lofty for me to attain.
Where can I go from your Spirit?

Where can I flee from your presence?
If I go up to the heavens, you are there;
if I make my bed in the depths, you are there.
If I rise on the wings of the dawn,
if I settle on the far side of the sea,
even there your hand will guide me,
your right hand will hold me fast.
If I say, “Surely the darkness will hide me
and the light become night around me,”
even the darkness will not be dark to you;
the night will shine like the day,
for darkness is as light to you.

For you created my inmost being;
you knit me together in my mother’s womb.
I praise you because I am fearfully and wonderfully made;
your works are wonderful,
I know that full well.
My frame was not hidden from you
when I was made in the secret place.
When I was woven together in the depths of the earth,
your eyes saw my unformed body.
All the days ordained for me
were written in your book
before one of them came to be.

How precious to me are your thoughts, O God!
How vast the sum of them!
Were I to count them,
they would outnumber the grains of sand.
When I awake,
I am still with you.

If only you would slay the wicked, O God!
Away from me, you bloodthirsty men!
They speak of you with evil intent;
your adversaries misuse your name.
Do I not hate those who hate you, O LORD,
and abhor those who rise up against you?
I have nothing but hatred for them;
I count them my enemies.

Search me, O God, and know my heart;
test me and know my anxious thoughts.
See if there is any offensive way in me,
and lead me in the way everlasting.

This psalm is a fine example of parallelism in Hebrew poetry. The second line of each couplet reflects the first line, either by repetition of thought in different words, or by expanding on the same train of thought. In addition, each major section of the psalm is focused around one idea, and builds on it through the entire section. The psalm employs all these elements in service to its overall and defining theme – the presence of Yahweh.

David begins the psalm by saying that Yahweh has searched him and knows him. He concludes it by a prayer to continue this process – for Yahweh to search him, know him and deliver him from any sinful ways. After he introduces this idea in the first verse, he immediately embraces the theme of God’s presence. When he sits and when he rises, when he goes out and lies down, Yahweh is with him. At the conclusion of this theme, David says, “When I awake, I am still with you.” This language portrays the idea that the thoughts David reflects on in all the intervening verses were grasped while “lying down,” perhaps even in a dream, where he was meditating on the presence of God, and considering the impossibility of removing himself from that presence. This meditation focuses on good news – the faithful and sovereign presence of his covenant King and Creator.

It is good news to be hemmed in and protected by the presence of Yahweh, and this knowledge is “too wonderful” for him. This reflects the reality of Ecclesiastes 3:11 – eternity is in our hearts, but we cannot fathom its beginning or end. We who are creatures living in the boundaries of space, time and number which provide our human freedom, cannot grasp Yahweh Elohim in his eternal nature. Thus we worship him. David worships the Lord here, as he then muses on the impossibilities of fleeing from his presence.

Whether he flees to the heights of the heavens or to the depths of sheol (the Hebrew word for the abode of the dead translated by the NIV here as “the depths”); whether he flees to the farthest reaches of the eastern sky (“the wings of the dawn”) or to the farthest reaches of the western sky (“the far side of the sea”); and all to which David cannot conceptually grasp traveling – he knows Yahweh will be present with him. He is a member of Yahweh’s covenant community, and therefore God keeps his covenant promise to be with him. In terms of the New Covenant community of Jesus the Messiah, Paul reflects a similar conviction in 2 Timothy 2:8-13:

“Remember Jesus Christ, raised from the dead, descended from David. This is my gospel, for which I am suffering even to the point of being chained like a criminal. But God’s word is not chained. Therefore I endure everything for the sake of the elect, that they too may obtain the salvation that is in Christ Jesus, with eternal glory.

“Here is a trustworthy saying:

“If we died with him,
we will also live with him;
if we endure,
we will also reign with him.
If we disown him,
he will disown us;
if we are faithless,
he will remain faithful,
for he cannot disown himself.”

Paul’s language contains the balance of the power of informed choice along with God’s sovereignty, his power to give. In Psalm 139, David reflects this balance too, for as he meditates on Yahweh’s sovereign presence, his will is simultaneously engaged. In fact, his thought exercise in considering how to flee Yahweh’s presence is part of the power of informed choice and the power to love hard questions reflecting David’s creativity in his image-bearing status. Both David and Paul can disown God and be disowned – if they were to commit apostasy in the sense of Hebrews 6:4-8 or 2 Peter 2:20-22. But they know God’s goodness too well to do so, and their choices to serve God are sealed in the depths of their souls. They may act faithlessly, but God will remain faithful because he cannot disown himself. He is completely good.

This is all “too wonderful” for David to fully grasp, since it is rooted in Yahweh’s eternal nature and perspective. It is too wonderful for me to grasp, but its beauty is knowable in human terms and leads to worship and gratitude. I join David in his celebration of this knowable beauty.

Then David considers the contrast of dark and light. Can he flee Yahweh’s presence if he surrounds himself in darkness? No, for he is a member of the covenant community, and he cannot actually embrace ultimate darkness. And even if he could, Yahweh is still Lord over the devil’s domain. Where light is, darkness cannot abide. This is true in eternal ethics, the laws of physics and in spiritual domains. The power to live in the light trumps the power of darkness to interfere successfully in the lives of believers.

Thus, in beautiful poetic structure, David is examining the possible places to which he can flee and evade Yahweh’s presence. He chooses three possibilities, none to which he has or can reasonably conceive of traveling. Finally in this exercise of thought, David ups the ante and considers the womb from which he came. Like Nicodemus (John 3:1-4), he knows it is a place to which he cannot return, and when he was there, he was too young to cogently discern his surroundings. This meditation on the womb is the final example, in a parallelistic structure, of a remote location of which David conceives – indeed, the most remote yet. Is Yahweh present there too?

As David considers this scenario, he naturally returns to the context of the order of creation, sharing all its assumptions. So, as I began this chapter by referring to the order of creation, as we consider the status of the unborn in face of the abortion debate, David’s instincts were the same as he considered the status of the unborn. Yahweh was intimately involved in David’s creation through the procreation process. To refuse the goodness of procreation is to refuse the goodness of the order of creation itself. It is to mock the image of God. David affirms that his humanity was full, not only when he was visibly human, but when his body was unformed (an embryo), and even before conception, his identity was present in the eternal mind of God. Too wonderful for us to fully grasp, and as well, it affirms the complete humanity of the unborn throughout the entire biological process of pregnancy – from conception to birth. Also, when David reflects on how wonderfully he was made in his mother’s womb, he says, “I know that full well.” The literal Hebrew for “I” is naphshi, which equals “my nephesh.” Again, the testimony of the nephesh of God’s image in the context of the unborn.

In simplicity, and with the full force of biblical theology from its origins, it can be stated that to abort a human being is to abort a chosen presence of God.

How can any of us claim to be believers in the God of the Bible if we justify human abortion? (While noting the redemptively necessary exception of when a mother’s life is truly endangered.) It is the unwarranted destruction of defenseless human life, and if we seek to destroy God’s presence in any capacity, and willfully maintain a justification for having done so, how can we expect to be received into God’s presence at the end of the age? (Apart from the power to forgive that trumps for those who seek it.)

In the various times I have been in a public forum with members of the Religious Coalition for Abortion Rights (RCAR), they have always challenged this passage. This was the case with Katherine Hancock Ragsdale, its former President (and now dean of Episcopal Divinity School in Cambridge, MA). She dismissed my exegesis of Exodus 21:22-25 in our two forums together, in February, 1994 at Yale, and January, 1996 at an Episcopal Church in Chevy Chase, Maryland. She did so, not by giving contrary evidence, but by simply saying it was nonsense.

This was also the case when I addressed a debate at the University of New Hampshire in September of 1989. There were three people on the pro-life side. And there were three on the abortion-rights side – a woman state legislator, a woman member of NOW, and a man who was a Methodist minister and member of RCAR. The NOW member was the only one who reciprocated any civility of attitude.

When in the course of the evening I alluded to Psalm 139, the RCAR minister began to ridicule my interpretation of the text. He said it was “poetry,” and had no relevance to the biology or moral status of the unborn. He evidenced his argument by asking me if I seriously thought that we were “woven together in the depths of the earth” as the text says. He said such a phrase reflected the primitive and unscientific basis of Israelite society, and as influenced by pagan religion. It was clearly the poetry of an unsophisticated society, he said.

I responded by asking if his seminary training included Hebrew, and knowledge of parallelistic structure. He said no. I then asked how he could make such an observation about a psalm written in a genre he knew nothing about. He did not respond. This response on my part is about as confrontational as I ever get. His question to me was both sarcastic and mocking in tone, as clearly evident to the audience and other panelists. I did not return any such attitude. Rather I treated him as an intellectual equal – since he brought up the question of poetry as a genre. I questioned him to see if he could sustain his point, and if he were qualified to do so. I knew it was pretense on his part, but I sought to first give him opportunity to defend himself or show some humility in recognition of having overstepped his expertise. Later in this chapter, we will see how Jesus models for us the wisdom on how to deal with such confrontations, as he faced elitists who opposed him.

I then explained the nature of Hebrew parallelisms in poetic structure, and summed up the nature of the psalm’s focus on the presence of Yahweh, along with the reason why David was looking at the subject of the womb. In so doing, I explained that all Hebrew poetry is in service to the assumptions of verifiable history, and science and the scientific method. Accordingly, David was free to use metaphor and hyperbole to underscore such realities. As David was considering the remoteness of the literal womb where his inmost being had been fashioned by God, he spoke of the “secret place” as a parallel expression to the womb, then of “the depths of the earth” as a parallel expression to the “secret place.” For David, the remoteness of the womb was both remote as a secret (unknown) place, and as unknown and remote as “the depths of the earth” (a different word than sheol is used here, in the sense of a place below the depth of a volcano). Thus, metaphor is in service to reality, as the poetic structure of this text so eloquently ratifies.

The RCAR minister did not challenge any of my exegesis. Later on in the evening, in response to something else he said, I began to refer to some exegetical background to frame my thoughts, and he interrupted. He complained that it was unfair for me to “get academic” again. How remarkable, and how consistent with living in the darkness. On the one hand he had enough temerity to challenge me academically by trying to dismiss the relevance of Psalm 139 to the status of the unborn, but on the other hand, once I accepted his challenge, he complained that I knew too much. Only those who embrace the power to live in the light can also embrace the humility and intellectual rigor of the power to love hard questions. It is not a matter of intellectual ability per se, but one of moral willpower to submit to the reality of God → life → choice → sex in the order of creation.

Once David finished his context of the womb, he goes into praise for the value of God’s thoughts, the One who perceived David’s thoughts at the beginning of the psalm. In this context we then see the reference to the enemies of the Messiah’s lineage, as we examined in Chapter Eleven. The beauty of the order of creation, and the presence of Yahweh as the covenant King, leads David to then make a contrast with those who despise Yahweh’s goodness. There is a war going on, and it is in the heavenlies between Christ and Satan, for the souls of men. David then concludes the psalm where he began, tying in its overall focus of knowing and being known by Yahweh, the One whose presence cannot be evaded. To abort a nascent human being is to abort a chosen presence of the Creator.

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