Some objections answered
Understanding this principle [lex talionis] and how it permeates the whole judicial code will help us dissolve several points of opposition to Theonomy. Let us look at a few.
First, someone versed in Scripture may notice that Jesus referred specifically to the lex talionis in the Sermon on the Mount, Matthew 5:38, and some will be quick to note that Jesus appears to contradict it and replace it with a “turn the other cheek” principle. He says,
You have heard that it was said, “An eye for an eye and a tooth for a tooth.” But I say to you, Do not resist the one who is evil. But if anyone slaps you on the right cheek, turn to him the other also. And if anyone would sue you and take your tunic, let him have your cloak as well. And if anyone forces you to go one mile, go with him two miles. Give to the one who begs from you, and do not refuse the one who would borrow from you (Matt. 5:38–42).
From this many Christians conclude that Jesus was replacing the Old Testament teachings with his own kinder, gentler doctrines. But this is a common misunderstanding of the Sermon on the Mount. Far from replacing the Old Testament law, Jesus said He came specifically not to abolish the Law but to fulfill it. He said that anyone who does annul these laws would be called least in His Kingdom, and whoever taught them would be called great (Matt. 5:17–18). Jesus was therefore fulfilling the lex talionis.
What Jesus said next helps us understand what He was communicating in the Sermon on the Mount. He said, “unless your righteousness surpasses that of the scribes and Pharisees, you will not enter the kingdom of heaven” (Matt. 5:20 NASB). While this verse contains quite a bit for discussion, one thing it suggests is that Christ’s teaching of the law in the Sermon on the Mount is to be seen in direct contrast to that of the Pharisees. Indeed, this is exactly what we find. Every time Christ says, “You have heard that it was said,” He is not contrasting the Old Testament with the New. Rather, He was taking the false interpretations the Pharisees and others had put upon Old Testament teaching and contrasting it with the true meaning of the Old Testament law as the perfect law of righteousness it was meant to be. The unbelieving Jewish leaders had corrupted and twisted its meaning in various ways through their oral traditions. Jesus was setting the record straight.
Thus, when we come to Matthew 5:38, Jesus is not replacing the lex talionis, He is simply correcting an error of the unbelieving teachers—namely, that the lex talionis could be applied to personal vengeance. Jesus corrected this mistaken notion. Biblical law actually forbids private revenge. Instead, we should be willing to turn the other cheek, and even submit to certain aspects of government tyranny for the sake of love and peace. As a matter of fact, some of Jesus’ points here (v. 42) were already taught in the Old Testament anyway (Deut. 15:8; Psa. 37:21; 112:5; Prov. 21:26).
Instead of supporting private revenge, the lex talionis is actually a principle of justice to be applied through due process and a proper jury trial. Far from condemning or replacing this foundational standard of justice, Jesus was actually vindicating it from a perverse use of it.
Second, critics of Theonomy sometimes respond that “of course” even the Old Testament death penalties were “just” because, after all, all sins deserve death. Putting aside other aspects of fallacy, this argument unwittingly calls into question the justice of all other penalties in the Mosaic law in which God did not prescribe death. For example, if all sins deserve the death penalty, then why not prescribe death for all infractions across the board—false witness, theft, covetousness, etc.? The fact that God instead prescribes restitution for theft should itself alert us to the fact that in civil/judicial law, we are dealing with a different sphere of jurisdiction and sanctions than God’s eternal judgment and our justification before Him.
When we address judicial law, we are dealing instead with God’s standards of material justice between men in history—and that is distinct from the cosmic, theological nature of sin in God’s eyes. When God prescribes something less than death for a certain crime, we must call that penalty just and not argue, or imply, that in the civil realm it deserves death. To do so is to equivocate on the meaning of the word “just,” to confuse theological categories and, as a result, indulge in cruelty in the civil state. Indeed, to follow the critics’ standard here would be to turn the state into the most invasive, rabid, and bloodthirsty tyranny in history, prepared to kill everyone for even the smallest covetousness, white lie, slight, etc. No, when we talk about God’s standards of civil justice, we are talking about something different—and as you can see, it matters tremendously. When God does not prescribe death, but something less, then we are not allowed to say that “death” in such a case would be just. We must acknowledge that the lesser penalty is indeed just because God has said so, and that nothing less or nothing more can be said to fit the crime and thus to be just in the civil realm.
On the other hand, when God does call for death—rapists, murderers, kidnappers—and our society, times, or sentiments desire something less, we must recognize that to apply something less is also to deny civil justice according to God’s standard. Again, we are not allowed in this sphere to call such penalties just only because all sins deserve death, but only because God has prescribed death as a civil penalty in such a case. Nevertheless, we must acknowledge that He does so and seek to obey his standards in society.
On this point, we must always remember that all of these applications are nothing more than deductions from that simple principle of lex talionis: the punishment must fit the crime—no more, no less.
Third, perhaps the most common objection is that while these penalties may be considered God-breathed and “just,” this was only within the time and context of Old Testament Israel. Once the New Testament has come, they are no longer necessary. God could thus call for certain crimes to receive certain punishments while His chosen nation was a geo-political reality. In this context, certain penalties might have made sense. But now that the New Testament has changed the nature of God’s people—they are no longer a civil state unto themselves—God has also taken away these laws as standards of civil justice. Thus, nations today are free to use whatever standards they see fit for civil laws in general, and penal sanctions in particular.
What this approach says is, in short, that God has changed His standard of justice over time, or at the very least has decreed that we live in a dispensation of time in which His standards of justice need not be applied. That is to say, some level of injustice is inevitable in this time, God’s OK with that, and we should accept the inevitability, too.
While this line of reasoning is quite popular, I find it incoherent and unacceptable. What we have seen with the lex talionis so far is that it is an immutable moral principle of justice. What could make justice change over time? What could make God Himself change over time? It is true that God may change certain aspects of the ceremonies or rites. He can also move jurisdiction for some sins as we see with the cherem principle. But He could never change moral principles that are grounded in His own nature: righteousness, justness. Shall not the judge of all the earth, then, do right (Gen. 18:25)? This is perfectly consistent with what we learned earlier regarding categories of law: there are some aspects of judicial laws that were expressions of the Old system. These we understand as pertaining only to Old Testament Israel through its temple, land, priesthood, etc. But there are also aspects of the judicial laws and punishments which are basic and fundamental to crime and civil society in general. These laws were always to be a standard upheld for all nations to praise and from which to learn (Deut. 4:5–8). They were not time-bound or nation-bound for Israel only; they are eternal moral principles which abide everywhere. While the coming of Christ and the New Covenant certainly get rid of the need for the rites and ceremonies, it does nothing at all to diminish God’s standards of justice and punishments that perfectly fit the crime according to God. If anything, the coming of Christ and the universal scope of the Great Commission strengthen the need for such standards, as wickedness abounds in nations and governments around the world.
But what about when society grows more wicked? Could there not be a need to impose stricter punishments in certain societies due to a prevalence of particular sins [this was Calvin’s argument]?
Again, this does not make good sense. Just because a greater number of people commit particular crimes does not entail that we should increase the penalties for each individual instance. Biblical lex talionis justice demands that we consistently punish the crime in each case, but do so in a biblically-measured way. To exceed a fit punishment would be to increase the level of wickedness and violence in society, but worse, to do so through the agency of the civil state. What good does it do to meet injustice with state-sanctioned injustice? Proverbs 28:2 says, “When a land transgresses, it has many rulers.” This is a tragedy indeed. A tyranny can be spotted by a burgeoning police state and a prevalence of bureaucrats, and usually wickedness lies at the root of that society. But even this proverb does not necessitate an increase in the severity of penal sanctions. It may be the case that such laws increase as well, but this would be a description of the growth of wickedness, not a prescription by God for how to deal with it. Severity should only increase with individuals who become repeat offenders, but this principle is built into the law already to begin with.
In the end, the lex talionis prevails again. There is nothing in changing times, histories, nations, people groups, social classes, or circumstances that could ever necessitate a change in the principle of the punishment fitting the crime. The moment we desire more, we make the state a tyrant. The moment we desire less, we make the state an accomplice to the criminals. This principle does not change.
In this chapter, we have learned that God’s judicial law is altogether just and righteous. We have learned that every one of his penalties was just. Both Old and New Testaments teach this, and even the book designated for demonstrating the superiority of the New over the Old nevertheless maintains that the penal sanctions remain just throughout.
We have learned, moreover, that there is an enduring, eternal moral principle upon which the judicial code and its punishments are based. This is the lex talionis. It requires that justice always be served such that the punishments fit the nature and magnitude of the crime. This principle, being moral and eternal, abides into the New Testament era, for God cannot change His moral nature. This means that the judicial laws and penal sanctions based upon this principle must endure today as well.
In short, because of the principle of the lex talionis, the judicial penal sanctions of Moses have abiding validity today as well. Christians should promote them, pulpits should preach them as standards for civil justice, and civil governments everywhere should acknowledge the God of the Bible and submit to these standards. Christians should desire a civil state that is limited and bound by them.
Next section: What it would look like: a first table vision