The Death Penalty and Genesis 9:6: A Reply to Mastnjak (Guest article by Timothy Finlay)

Genesis 9:6 famously states: “Whoever sheds the blood ofman, by man shall his blood be shed; for God made man in his own image” (RSV).This has traditionally been understood by Jews and Christians alike assanctioning capital punishment. In arecent article at Church Life Journal,Nathan Mastnjak has argued on grammatical grounds for an alternative reading ofthe passage, on which it does not support the death penalty. What follows is aguest article replying to Mastnjak by Timothy Finlay, who is Professor ofBiblical Studies at Azusa Pacific University and a member of the NationalAssociation of Professors of Hebrew.

In his article, Nathan Mastnjak writes,“The translation ‘by a human shall that person’s blood be shed’ is not strictlyimpossible, but given the norms of Classical Hebrew grammar, it should beviewed as prima facie unlikelyespecially since there is a much more plausible translation that iscontextually appropriate and grammatically mundane.” This has it completelybackward. It is Mastnjak’s claim that the ב inGenesis 9:6 be construed as expressing price or exchange that, while notstrictly impossible, flies in the face of Hebrew lexicons and grammars – incontrast to the standard translations (both Jewish and Christian) which arecontextually and canonically appropriate and grammatically mundane.

Mastnjak rightly examines bothgrammatical issues about the specific phrase translated in the NRSV as “by ahuman shall that person’s blood be shed” (Gen 9:6) and contextual issuesarising from its literary connection. Unfortunately, both aspects of hisargument are seriously flawed and completely ignore the mountain ofscholarship, Jewish and Christian, medieval and modern, which support thetraditional translations. The implications of the traditional translations, asMastnjak correctly diagnoses, install “the death penalty as a common principleof the Natural Law and thus would make it be applicable and theoreticallyusable by all human societies.” This includes recent Catholic scholarship thatexplicitly supports Pope Francis in his desire to abolish the death penalty butconcedes that the God who executed retribution for violence in the flooddelegated in Genesis 9:6 this power to humans created in the image of God. Andit goes at least as far back as the Toseftain the late second century. The Toseftaregards the establishing of human courts of justice to administer the deathpenalty as part of the Noahic code in Genesis 9.

Mastnjak’s central grammatical pointsare that “Of the hundreds of passive verbs in the Hebrew Bible, the grammarianscan find only a handful of possible cases where the agent of a passive verb isexplicitly expressed” and that a frequent usage of the Hebrew preposition ב is “toexpress price or exchange.” One problem for Mastnjak is that major lexicons andgrammars with entries on the Hebrew preposition ב are wellaware of both these facts and prefer to render the ב inGenesis 9:6 not as a ב pretii expressing price or exchangebut as indicating that humans are involved as the instrument through whichmurderers will be executed. These lexicons and grammars include GKC (the grammar byGesenius-Kautzsch-Cowley), BDB (thelexicon by Brown-Driver-Briggs), BHRG(the reference grammar by van der Merwe-Naudé-Kroeze), IBHS and HSTE (the syntaxgrammars by Waltke-O’Connor and by Davidson repectively) and DCH (Dictionary of Classical Hebrew,edited by David Clines, which does use a “perhaps” for Genesis 9:6 as anexample of the ב pretii but includes it straightforwardly as an example of ב ofagent). Other than a second option “perhaps” in DCH, the major grammars and lexicons discussing the relevant ב in Genesis 9:6 do not support Mastnjak’s contention.

Another problem for Mastnjak is thatthe construction need not be an agent of a passive verb for Genesis 9:6 toestablish the death penalty for murder as a standard judicial principle.Genesis 21:12, another construction with a passive and a ב plus nounsegment with human semantics, is plausibly translated “it is through Isaac thatoffspring will be named for you.” Although Isaac is not the direct agent here,without Isaac’s involvement the people of Israel as Abraham’s quintessentialoffspring would not have existed. Such a usage applied to Genesis 9:6 wouldhave emphasized humans not as the agents of execution but that it is throughhumans sentencing the murderer that the murderer’s blood would be shed. Thiswould still entail an establishment of capital punishment.

And this is precisely how two of the major targums (earlyAramaic translations, which often engage in elaboration) translate the verse.Targum Onqelos renders the clause, “He who sheds the blood of a human beforewitnesses, through sentence of the judges shall his blood be shed.” Moreextensive legal codes in Torah prescribe the presence of two or three witnessesas a necessary condition for a murderer to be executed. Targum Onqelosclarifies that Genesis 9:6 does not override this condition. TargumPseudo-Jonathan further expands: “Whoever sheds the blood of a human in thepresence of witnesses, the judges shall condemn him to death, but whoever shedsit without witnesses, the Lord of the world will take revenge of him on the dayof great judgment.” Targum Pseudo-Jonathan also provides a rebuttal toMastnjak’s second argument – that the context of the preceding verse, Genesis9:5, where God requires an accounting for human blood shed by animals orhumans, precludes capital punishment in Genesis 9:6. Pseudo-Jonathan clearlyincludes the context of Genesis 9:5 in its understanding of the followingverse; God authorizes capital punishment in circumstances of due legal processwhere the evidence is clear but will personally revenge the murder victimotherwise.

The third problem for Mastnjak on the grammatical side isthat the two resources he does cite do more to hurt his position than to helphim. His first resource is a paragraph in a four page book review of a Hebrewgrammar, not the type of source one would expect to carry the weight ofrefuting over two millennia of Jewish and Christian interpretation of Genesis9:6. His second resource, the Hebrew grammar by Joüon and Muraoka, has higherrenown but argues against Mastnjak’s position.

First, here is page 151 of Dennis Pardee’s book review involume 53 of Journal of Near EasternStudies (1994) of Waltke and O’Connor’s AnIntroduction to Biblical Hebrew Syntax: “Occasionally they give in to thenorms of Indo-European syntax or do not indicate the rarity of a givenconstruction. For example, on p. 385, they state that ‘in the complete passive,the agent may be indicated by a prepositional phrase…’ (cf. also p. 213). Notonly have they omitted a statement regarding the rarity of the construction butmost of their examples can be explained, within the terms of the Hebrewprepositional construction, otherwise (bin Gen. 9:6 = b of price; bhm in Exod. 12:16 = ‘among them’).”Unfortunately, Waltke and O’Connor only cite three examples of passiveinvolving ב of agent (Gen 9:6; Exod 12:16; and Deut33:29), and I would go farther than Pardee and argue that Exodus 12:16 isbetter translated “among them” than “by them.” Exodus 12:16 is not construed byother grammarians as indicating an agent. Genesis 9:6 is the verse underdispute. Tellingly, even Pardee does not object (in this book review anyway) toregarding Deuteronomy 33:29 as a ב of agent or atleast some instrumental usage. But the list of plausible passive constructionswith a ב of agent extends beyond those mentioned byWaltke and O’Connor. Leaving the disputed Genesis 9:6 aside, the examples ofthe construction in question in at least one of DCH or BDB are “wascommanded by the Lord” (Num 36:2); “a people saved by the Lord” (Deut 33:29),“Israel is saved by the Lord” (Isa 45:17), “by a prophet he was guarded” (Hosea12:13), and “by you, the orphan finds mercy” (Hosea 14:3). In short, Pardee iscorrect that Waltke and O’Connor could have done a better job on thisconstruction, but if Mastnjak had consulted some lexicons in addition to a bookreview, he would have discovered that the construction is not as rare as he hadpresumed.

Things get much worse for Mastnjak in regard to his secondsupposed support, Joüon and Muraoka’s deservedly influential A Grammar of Biblical Hebrew (Rome:Biblico, 2006). That resource (ON THE VERY PAGE MASTNJAK REFERENCES) explicitlyargues for the traditional translation of Genesis 9:6 that Mastnjak wants toreject! Mastnjak cites Joüon and Muraoka as follows, “In Hebrew (and classicalSemitic languages in general) the marking of an agent with a verbmorphologically marked as passive is rather limited in scope when compared withmany Indo-European languages” (page 454). True, but what really matters iswhether Genesis 9:6 is an example of an agent with a verb morphologicallymarked as passive. And this is what Joüon-Muraoka say about that on the samepage 454: “In Gn 9.6 ב is used and not מן because man ishere the instrument of justice (the exception to the law which forbids theshedding of blood, vs. 5): He who sheds aman’s blood, by (means of) a man shall his blood be shed(1).”2

Like Mastnjak, Joüon-Muraoka note the connection betweenverses 5 and 6 but draw a different conclusion to him. The footnote in thisquote mentions not only Ernst Jenni’s entire volume on the Hebrew preposition ב in his massive three volume work on Hebrew prepositions, butalso the medieval Jewish commentator Ibn Ezra. Ibn Ezra argues that Genesis 9:6obligates the descendants of Noah to execute a murderer. Radak (Rabbi DavidKimhi), perhaps the greatest medieval Hebrew grammarian, explains theconnection to Genesis 9:5 in similar manner as do Targum Onqelos and TargumPseudo-Jonathan: if there are witnesses, then the judges must ensure that themurderer is executed; but when there are no witnesses, God may personallyrequire the reckoning.

Other modern Hebraists see more examples of agential ב with passive than do Joüon and Muraoka, and the disagreementmay be more terminological than substantial. Joüon-Muraoka argue that themeaning in Deuteronomy 33:29 and Isaiah 45:17 is saved “through YHWH” ratherthan “by YHWH” but this is an exceptionally fine distinction given thatBrown-Driver-Briggs (on page 89) equates “through YHWH” with “by YHWH’s aid” asan agential subcategory of the more general ב of instrument or means. Even if one argued that Joüon-Muraokashould, by consistency with their understanding of Deuteronomy 33:29 and Isaiah45:17, have translated Genesis 9:6 as “through humans shall his man be shed,” withthe “through” designating witnesses and judges rather than the “by” ofexecutioners, i.e. along the lines of Targums Onqelos and Pseudo-Jonathan, thiswould not have helped Mastnjak’s case that Genesis 9:6 does not establishcapital punishment.

Mastnjak’s grammatical argument regarding באדם is a complete bust. His second argumentis likely worse. He states that context supplies the “implied agent responsiblefor shedding the blood the murderer. We need search the context no further thanthe immediately previous verse, Genesis 9:5: ‘But indeed I will seek your bloodfor your lives. From every beast I will seek it. From the hand of man, each manfor his brother, I will seek the blood of a man.’” And when Mastnjak says, “weneed search the context no further than the immediately previous verse,” hebacks this hermeneutical decision up by spectacularly ignoring the contexts of:the preceding flood narrative after which Genesis 9 represents a new beginning;the pattern of violence from Cain to Lamech through to the whole earth beingfilled with violence to which Genesis 9:5-6 is a new response; thehistorical-comparative context of other flood stories in the Ancient Near East;the historical setting of the author of Genesis 9 living at a time whensocieties including Ancient Israel had law codes prescribing capital punishmentfor murder; and the literary setting of Genesis 1-11 which is replete withetiologies of how present institutions and other realities originated.

In fact, in his contextual argument for how to translate thefirst half of Genesis 9:6, Mastjnak does not even consider the second half ofthe verse, whose discussion of the image of God clearly connects it back toGenesis 1:27-28. Genesis 9:6b looks like a narratorial comment within thedivine speech3 and certainly is a clause which purports to explainthe rationale for the prescription in the first half of the verse; surely atleast that context would have been germane! But all Mastnjak gives us is that“God commits himself in Genesis 9:5 to a mysterious mode of intervention in theworld in which somehow – he does not say how – he himself will intervene toavenge any creature, man or beast, that violates the sanctity of human life.This commitment to avenge the blood of any manslayer interprets the followingverse, Genesis 9:6, and provides the agent that the grammar does not specify.Who will shed the blood of the murderer? God himself.” In this interpretation,Genesis 9:6a adds basically nothing to what is said in verse 5, a weaknesscompared to the traditional translation which shows one manner in which Godpunishes the murderer (no one believes that all murderers are executed). VictorHamilton points out that reading Genesis 9:6 as “for man shall his blood beshed” entails that Genesis 9:5-6 exhibits a tautology; and Kenneth Matthewsargues, “Since the value of the victim’s life already is presented in v. 5, v.6a is best taken as building on this by adding that the divine means of God’s‘accounting’ includes human agency.”4

Mastnjak is entitled to offer counterarguments to Matthews,Hamilton, and others. What he is not entitled to do is give the impression thatthose who translate Genesis 9:6 in the traditional manner have not taken thecontext of the previous verse into account; they most certainly have and thatis part of why they reject seeing Genesis 9:6 as an example of ב pretii.

However much Mastnjak’s grammatical argument lackedengagement with the relevant lexicons, it did at least cite two resources (evenif one of them actually sunk his position). But in his contextual argument,Mastnjak’s audacity reaches new heights. He seeks to overturn the overwhelmingconsensus of Jewish, Catholic, and Protestant commentators and translators by acontextual argument that ignores almost all the contexts that responsibleexegetes take into account – and breathlessly does so without citing a singlescholar in making this argument.

Mastnjak is right thatthere is a certain vagueness concerning the agent of execution. But this fitswith a variety of agents, not just God himself. John Wesley comments, “That is,by the magistrate, or whoever is appointed to be the avenger of blood. Beforethe flood, as it should seem by the story of Cain, God took the punishment of murder into his own hands; but nowhe committed this judgement to men, to masters of families at first, andafterwards to the heads of countries.”5 Likewise, John Waltonwrites, “Accountability to God for preserving human life is put into humanity’shands, thus instituting blood vengeance in the ancient world and capitalpunishment in modern societies. In Israelite society blood vengeance was in thehands of the family of the victim.”6

Regarding the context of Genesis 9:6b, “Because in the imageof God he made man,” Gordon Wenham comments, “It is because of man’s specialstatus among the creatures that this verse insists on the death penalty formurder.”7 But it is also “man’s special status” as being in theimage of God – whether this refers to analogically shared attributes such asintellect and will or whether it is as God’s royal representatives to the restof creation – that befits humans to be instruments of divine punishment.8David vanDrunen comments, “The image of God carried along with it a naturallaw, a law inherent to human nature and directing human beings to fulfill theirroyal commission to rule over creation in righteousness and justice.”9

We now turn to the context of Genesis 9:1-7 as theconclusion and remedy episode to the Genesis flood narrative, comparing andcontrasting it with the flood account in the Atrahasis Epic. Tikvah Frymer-Kenskywrites, “The structure presented by the Atrahasis Epic is clear. Man is created… there is a problem in creation … remedies are attempted but the problemremains … the decision is made to destroy man … this attempt is thwarted by thewisdom of Enki … a new remedy is instituted to ensure that the problem does notarise again.”10 In Genesis, a similar structure occurs with lessemphasis on earlier remedy attempts and with God paralleling both the role ofthe main gods to destroy human beings and Enki’s role in providing a means ofescape for Noah/Atrahasis. Comparing these stories helps us focus on the reasonfor the flood and on the changes made so that the world after enabled thecontinued existence of human beings.11

In the Atrahasis Epic, the problem was overpopulation. Thisis emphatically not the case in Genesis. God’s speech in Genesis 9:1b-7 isstructured so that introductory commands to be fertile (Gen 9:1-b) andconcluding commands to be fertile (Gen 9:7) envelop instruction concerning animals(Gen 9:2-4) and concerning the shedding of human blood (Gen 9:5-6).

The instruction concerning animals includes an assertivethat animals will fear humans (Gen 9:2a), an exercitive granting humansdominion over animals (Gen 9:2b, linking back to Gen 1:28), a permission to eatanimals (Gen 9:3), and a restriction of the permission by prohibiting theeating of blood (Gen 9:4). If the Jewish understanding is correct that Genesis9:2-4 signals that prior to the deluge humans were forbidden to eat animals (Genesis1 contains a permission to eat plants, but no permission to eat animals orprohibition thereof is mentioned), then the antediluvian mandating ofvegetarianism might have been a contributing cause to the violence. Againstthis interpretation is that the distinction between clean and unclean foods ismentioned in the flood story, or in one of its sources, and that the text makesno link between human dietary habits and the divine decision to bring about aflood.

In any case, Genesis 9:5-6 which concerns human blood shedmust be read as the remedy to the violence filling the earth which Genesisexplicitly records as the reason for the divine decision to destroy all flesh(Gen 6:11, 13). As Frymer-Kensky observes, “Only three stories are preserved inGenesis from the ten generations between the expulsion from the Garden and thebringing of the flood. Two of these, the Cain and Abel story (Gen 4:1-15) andthe tale of Lemech (Gen 4:19-24), concern the shedding of human blood.”12Frymer-Kensky then discusses the remedy of Genesis 9:1-7, developed in laterJudaism as the Noahic Code,13 as “a system of universal ethics, a‘Natural Law’ system in which the laws are given by God” in which Genesis 9:6contains “the declaration of the principle of the inviolability of human lifewith the provision of capital punishment for murder.”14 Nahum Sarna,justifies rendering Genesis 9:6 as “by man,” indicating the instrument ofpunishment, similarly sees it as a remedy to the pre-flood situation: “Humaninstitutions, a judiciary, must be established for the purpose. Thisrequirement seeks to correct the condition of ‘lawlessness’ that existed priorto the Flood (6:11).”15 Sarna also makes a grammatical argumentabout the crucial clause, namely that a phrase containing “blood” and thepassive “shall be shed” always occurs in the Bible with a human agent (Lev 4:7,18, 25, 30, 34; Deut 12:17; 19:10), not a divine one. Jozef Jancovic is anotherscholar who makes the connection between Genesis 9:5-6 and the shedding of bloodin the Cain and Lamech stories as well as the violence in Genesis 6:11-13 thatwas the reason for the flood.16 Jancovic concludes, “God heredelegates humanity with the power to punish human blood-shedding, and just asin the creation story, this delegation of power by God is justified by thecreation of humanity in God’s image (Gen 9:6b).”17 He also connectsthe first plain poetry in Genesis 4:23-24 with the poetic structure in Genesis9:6a as indicating that the permanent problem of violence had been solved inthe lex talionis.18 Ofcourse, by the time Genesis 9:6 was written, the lex talionis was a part of many ancient societies, so Genesis 9:6can be seen as one of the many etiologies in Genesis 1-11.

None of these larger settings, which provide furtherevidence for the traditional translation of Genesis 9:6, are considered inMastnjak’s contextual argument. And only by neglecting to discuss what othercommentators have said about the grammatical considerations, the largersetting, and the immediate context in Genesis 9:5-6 can Mastnjak dare toconclude his article, “These observations on Genesis 9:6 do not, of coursesettle the question of the morality of capital punishment or how Pope Francis’srevision of the Catechism should be understood in relation to previous Churchteaching.  But they do entail that ifsupport for the death penalty is to be found in Sacred Scripture, it should besought outside the covenant with Noah in Genesis 9.” No they do not entail thatat all! The entire article is a bust.

Timothy Finlay, Professor ofBiblical Studies, Azusa Pacific University

Notes:

1 SeeJenni, Beth, 178–80, but so alreadyIbn Ezra ad loc.

2 PaulJoüon and T. Muraoka, A Grammar ofBiblical Hebrew (Roma: Pontificio Istituto Biblico, 2006), 454.

3 JohnSailhammer notes not only the conjunction , “because,” but the shift to the 3rdperson reference to God, and comments, “Already the narrative has become aplatform for the development of the biblical law,” in “Genesis,” The Expositor’s Bible Commentary:Genesis-Leviticus (Revised Edition) (Grand Rapids: Zondervan, 2008), 132.

4 KennethA. Matthews, Genesis 1-11:26 (NewAmerican Commentary; Nashville: Broadman & Holman Publishers, 1996), 405.

5John Wesley, Explanatory Notes upon theOld Testament (Bristol: William Pine, 1765), 41.

6 John H.Walton, Genesis (NIV ApplicationCommentary; Grand Rapids: Zondervan, 2001), 343.

7 GordonJ. Wenham, Genesis 1–15, vol. 1 of Word Biblical Commentary (Dallas: Word,Incorporated, 1987), 194.

8 See David Novak, Natural Law in Judaism (Cambridge:Cambridge University Press, 1998) and Steven Wilf, The Law before the Law (Lanham: Lexington Books, 2008) who drawsfrom Maimonides’ Guide to the Perplexed.

9 David vanDrunen, A Biblical Case for Natural Law (GrandRapids: Acton Institute, 2008), 14. VanDrunen comes from a Calvinist tradition.Calvin, like Luther and Wesley, regarded Genesis 9:6 as establishing capitalpunishment for homicide. See also Gerhard von Rad’s commentary on Genesis. Radobserved that Genesis 9:6 holds in tension the sanctity of human life (murderdeserves capital punishment) and human responsibility to carry out punishment(executing a murderer is permissible). Similarly, Rusty Reno’s commentary onGenesis sees this tension as “the capacity to exercise authority for the sakeof a higher principle” Genesis (GrandRapids: Brazos Press, 2010), 125.

10 Tikvah Frymer-Kensky,“The Atrahasis Epic and its Significance for our Understanding of Genesis 1-9,”Biblical Archaeologist (1977), 149.

11 Frymer-Kensky, 150.

12 Frymer-Kensky, 152-53.

13 See for example Tosefta Abodah Zarah 8:4.

14 Frymer-Kensky, 152.

15 Nahum Sarna, Genesis (The JPS Torah Commentary;Philadelphia: Jewish Publication Society, 1989), 62.

16 Josef Jancovic, “BloodRevenge in Light of the Imago Dei in Genesis 9:6,” The Biblical Annals 10 (2020) 198-99.

17 Jancovic, 203.

18 Jancovic, 199.