Last September I posted a piece called “The Death Penalty as Our Only Hope.” As a result of that I got into a brief Facebook exchange with Joel McDurmon on some of the issues involved. As it happens we are planning to continue that discussion this afternoon on Iron Sharpens Iron.
In the spirit of full disclosure, below are some of my notes, certain elements of which you might expect to hear if you tune in.
When we talk about returning our culture to a biblical footing, which we self-evidently need to do, one of the more obvious questions to ask is “what about all those draconian death penalties?” Because of those penalties, those Christians who are theonomic, or who lean theonomic, are often relegated to the role of ayatollah weird beards who want to chop off hands in the name of Jesus.
In his book on the subject of God’s law (The Bounds of Love: an Introduction to God’s Law of Liberty), Joel McDurmon seeks to address this question in terms of the cherem principle.
If something was cherem it was “specially devoted to destruction” (Loc. 942).
“When in the context of a punishment for a crime against God’s holiness (idolatry, paganism, etc.), it meant to be put under the curse of immediate death” (Loc. 945).
There were cherem principles in the laws of Israel, and there was also a special category of cherem warfare.
“He reiterates this special devotion to destruction in the laws of warfare (Deut. 20:16-18)” (Loc. 973).
“But in the Canaanite cities ‘devoted to complete destruction,’ nothing and no one was to be spared” (Loc. 975).
“In such a case, the whole city was to be devoted and destroyed, including all the property within it. All the property was to be burned specifically ‘as a whole burnt offering to the Lord your God’ (13:16). This detail is crucial” (Loc. 1003).
Now I believe that McDurmon is correct in his interpretation that such offenses and penalties in the Old Testament were in a special cherem category. I also agree that this means that such laws cannot be simply picked up and transferred across and applied without transformation to our time. The idea that theonomy means that we must ignore the special role that Israel had in God’s economy, not to mention the impact of the Christ remaking heaven and earth, is really misguided. McDurmon and I agree thus far.
At the same time, I am afraid that McDurmon leaves a couple of key questions unaddressed.
First, he simply assumes that the transfer from the old economy to the new was one of abrogation, not abrogation and incremental replacement. In other words, when the old Mosaic code was fulfilled by the coming of the Messiah (as we agree that it was), it was fulfilled during a time when the pagan law of Rome was the established order. Legal paganism was not to be replaced for a few centuries yet. But it was going to be replaced, and when Christians came into possession of political power, they were going to have to decide what to do exactly.
In other words, Christ came at a time when believers would have no political power for centuries. He abrogated (through fulfillment) the Mosaic code, and He began the process of abrogating the pagan codes (through gospel triumph). But it would be a major mistake to take the civil state of affairs in 120 A.D. as representing God’s de facto intention for the laws a thousand years later. The leaven works through the loaf, and a significant part of that loaf is the legal system. This applies to laws about slavery, laws about abortion and infanticide, and laws about sodomy. We have to answer the question why there were no laws against slavery, abortion, and sodomy in 120 A.D. Was it because Christ had come, or because the Spirit of Christ had not gotten that far yet?
My second concern is this, and one he briefly mentions at the tail end of his discussion of these issues. He says:
“It is my conclusion that civil governments no longer have authority to apply cherem punishments in the New Covenant” (Loc. 1101).
“While all of these sexual sins—adultery, sodomy, and bestiality—remain abominable sins, with the coming of Christ and the abolition of the Old Covenant administration, they can no longer be said to be capital crimes” (Loc. 1242).
“There are still, however, sanctions that can be imposed” (Loc. 1249).
“I also do not see why local civil governments would not be warranted to punish flagrant cases with loss of citizenship or banishment” (Loc. 1251).
But here is the problem. By what standard? When McDurmon argues that the cherem principle applies, he needs to show how that interpretation does not remove all penalties altogether. In other words, in a biblical republic, why any civil penalties at all for such sexual crimes? McDurmon argues that with the new covenant “comes a transfer of the seat of judgment from the earthly land to the heavenly throne of Christ” (Loc. 1012). If that is the case, where do we get off banishing someone, or taking away their citizenship?
Banishment or loss of citizenship would be decided here on earth, and not from the heavenly throne of Christ. So how are we to process this?
One possible answer is that sodomy is now considered as simply a Second Table offense—the cherem principle having been applied back when it was also a First Table offense. “Civil government no longer has jurisdiction over First Table offenses” (Loc. 1171).
But this creates new questions. Does it mean that civil government no longer has cherem jurisdiction over First Table offenses, or no jurisdiction whatever? McDurmon appears to me to be saying that blasphemy (for example) should only be a civil issue when it is conducted in such an outrageous manner that it slops over into Second Table issues.
“Only in extreme or aggravated cases in which blasphemy or false worship aims to lead to revolution, sedition, terrorism, or treason would civil government intervention be appropriate” (Loc. 1172).
But to say that something in the Old Testament fell under the cherem ban does not mean that it does not apply to us today. Rather, this principle affects how the cherem penalties should be applied, not whether they should be. In other words, we can learn from the severity of the cherem penalties that—even though we are no longer keeping the holy land pure, or keeping the holy seed free from defilement—sodomy is a sin that a civil order needs to take with utmost seriousness. It is no misdemeanor.
We need to remember that when God judged Sodom and the other cities of the plain, there was no cherem principle involved at all.
“Even as Sodom and Gomorrha, and the cities about them, in like manner giving themselves over to fornication, and going after strange flesh, are set forth for an example, suffering the vengeance of eternal fire” (Jude 7).
The destruction of these cities, these municipalities, is set out as an example, and I would suggest that it is an example that should stand until the end of the world.