Jesus, the Adulterous Woman and the Death Penalty — Part II

When I first began researching this subject in the Fathers, I didn’t quite know what I would find. I wanted to gather quotes to show their interpretation of Jesus writing on the ground. But I found a great deal more when I discovered two letters of St. Ambrose that do treat the question of the death penalty at some length in the context of this passage from John. Amazingly, though I have read a number of articles and dissertations on the woman taken in adultery, the question of whether the Fathers discussed this Scripture passage in relation to the death penalty is almost never brought up in them. The letters of Ambrose were eye-opening in this regard. I am still researching this and working on an exact translation of the letters. So I will limit myself here to a brief second installment. You can read Part I here.

writing_in_dust

Since I began writing, Edward Feser has stepped up his rhetoric against Pope Francis’s take on the death penalty, and he has been answered in this very interesting article by E. Christian Brugger.

One thing that hasn’t been discussed in these articles or the others I’ve seen is the whole question of the difference between saying something is “intrinsically wrong” or “intrinsically evil” and what Pope Francis has said, which is that putting criminals to death is “in itself contrary to the Gospel.” The Gospel, after all, contains a great many things other than lists of intrinsically evil actions, and Francis appears to be talking more about the positive teaching of the Gospel on life. Can “contrary to the Gospel” in this sense be more clearly defined? I would love to see a definition of terms in this argument. I hope to add something to this debate before the end of my discussion, so hang on.

Since this part will deal more closely with the question of the death penalty, I should add here something I neglected to put in the first part: there was a question among the Jews at the time of Jesus of whether death was the suitable penalty for adultery and whether the death penalty itself was proper.[1] And Rome did not practice or recognize the death penalty for adultery.[2] This means that the scribes and Pharisees were most likely putting a real question to Jesus, though with improper motives, that really had to do with the legality of the death penalty. So let’s go a little deeper into this story.

Writing with the Finger of God

“And Jesus stooped and wrote on the ground.” (Jn 8:6).

This is the only time in Scripture where Jesus is said to have written anything – and we are not even told what he wrote! Curiosity has given rise to all sorts of imaginative suggestions. Some believe that he was writing the names and the sins of the woman’s accusers, or a particular passage of Scripture – for instance, St. Ambrose suggested, “Earth, earth, write these men deposed (Jeremiah 22, 29, 30).”[3]

Perhaps the most plausible solution is that Jesus was following Roman practice: in Roman law, the judge first wrote down his sentence, then delivered it orally.[4] And indeed we see Jesus stooping to write, then standing up or looking up and speaking each time after he writes. Could be he have been writing down each of the two “sentences” he gives? This strikes me as very credible and likely.

Most of the better-informed Jews of the time, certainly including the scribes and Pharisees, would have been quite familiar with the legal practices of the Roman governorship of Judea. It is also likely that most of the large crowd standing in the Temple courtyard that day wouldn’t have been close enough to read what Jesus wrote. In fact, it’s clear that they didn’t: they only started going away when they heard him speak. But it would have been easy to understand his gesture of writing and what it meant when it was followed by his speaking: he was signaling to them that he was handing down a sentence.

The first sentence, in front of the accusers, suggests that they could carry out the death penalty on the condition of their sinlessness; the second takes place when he is alone with the woman; here he doesn’t so much acquit her as dismiss the case, because there are no longer any accusers and therefore no charges.[5]

But the real importance of the writing may not be in what was written, but how and by who it was written. We are told that Jesus wrote with his finger, recalling the Old Testament giving of the law to Moses:

When the Lord had finished speaking to Moses on Mount Sinai, he gave him the two tablets of the covenant, the stone tablets written with the finger of God. (Exodus 31:18).

And another detail, that the first time Jesus writes, the Greek text expresses “he wrote” using the verb katagrapho and the second time the simpler form of the verb grapho.[6]

The first time:

Jesus bent down and wrote (katagrapho) with his finger on the ground (v. 6)

The second time:

And once more he bent down and wrote (grapho) with his finger on the ground. (v. 8)

This is an example of the Hebrew style of parallelism – the repetition of something that is the same, but different. This makes it a good sign that the author, whoever he was, was a Jew. But he undoubtedly had another reason for writing as he did, for in the text of the Septuagint, the Greek Old Testament the evangelists used, the exact same words also occur shortly after the above passage in Exodus, and in the same order:

Then Moses turned and went down from the mountain, carrying the two tablets of the covenant in his hands, tablets that were written (katagrapho) on both sides, written (grapho) on the front and on the back. (Exodus 32:15). [7]

To Jews who had Exodus almost by heart and who had this rhythm of Scripture always in their ears, the reference would have been clear: not only is Jesus above the Roman lawgivers, he is superior even to Moses. He is not just the just and sinless Judge, but the Divine Lawgiver himself. Thus he answers the challenge in the terms he was given: “the law of Moses says this – what do you say?” The answer is not only a judgment but the law written by God. It is similar to Jesus’ judgment on divorce (Mt. 19:8-9), where his word supersedes the law given by Moses. The Fathers of the Church recognized this clearly. St. Augustine wrote:

. . . you have heard, O teachers of the law, the guardian of the law, but have not yet understood Him as the Lawgiver. What else does He signify to you when He writes with His finger on the ground? For the [Old Testament] law was written with the finger of God; but written on stone because of the hard-hearted. The Lord now wrote on the ground, because He was seeking fruit.[8]

Sinless Judges

But what does this judgment say? What does Jesus really mean by saying, “Let the one who is without sin be the first to cast a stone at her”? How does it apply to the death penalty?

St. Augustine sums up the dilemma created by Jesus’ words:

. . . This is the voice of Justice: Let her, the sinner, be punished, but not by sinners: let the law be fulfilled, but not by the transgressors of the law.[9]

Some death penalty opponents believe that in this story, Jesus did away with the death penalty. It can be argued that his judgment, which is the very judgment of God, means that only the sinless can carry out the penalty of death against sinners. Since no human beings except Jesus and Mary have ever been sinless, no human being can put someone to death.

Augustine doesn’t actually draw the conclusion implicit in his words, though others have.[10] But others reject this interpretation. One Evangelical writer, Stephen James, puts it this way: “the logical consequence [of this argument] is that there can be no criminal judgment and punishment on earth because all men are sinners. This would obstruct the express purpose of civil government, which is a ‘minister of God, an avenger who brings wrath upon the one who practices evil” (Rom 13:4).[11]

Many Catholics would say the same. But this argument ignores the fact that the question is about the death penalty, not the whole of the law. It can be argued that the power over life and death, which actually belongs to God alone, cannot be delegated to or exercised by sinful human beings. This does not necessarily touch the rest of the law.

But there is more in the Fathers about this subject. As I mentioned in the first installment, some have suggested that the passage was originally in John 8:1-11, but was removed from the Gospel by some people. Most commentary by later writers has assumed that those who removed the passage were concerned about too lenient penances in the Church for adultery. For instance, they draw on the words of St. Augustine:

Certain persons of little faith, or rather enemies of the true faith, fearing, I suppose, lest their wives should be given impunity in sinning, removed from their manuscripts the Lord’s remission of the penalty (indulgentia) in regard to the adulterous woman, as if he who had said, ‘Sin no more,’ had granted permission to sin.”[12]

St. Augustine was writing here in the context of Church penance for adultery. Some translations have “forgiveness” here, probably intending “forgiveness of sin,” but this is incorrect. Indulgentia in Roman times meant remission of a legal penalty, in the Church it was also applied to the remission of a penance imposed on a sinner by the bishop. It is the legal penalty that is at issue in the original story. St. Augustine, in the context, meant it to apply to the question of penance. But he is not denying the original meaning. So it is possible that he is also speaking of those who thought adultery should be punished by law.

But there is even more in the Fathers that confirms this as a possible interpretation. In the next installment I will take up the works of St. Ambrose, Augustine’s contemporary (indeed, the bishop who baptized him and who was his mentor). He has a great many surprising things to say about the role of the passage in John in the debate – and yes, there was a debate — in the early Church over the death penalty.

NOTES

[1] Markus Maienpaa, “The Pericope Adulterae and the Historical Jesus – Interpretation and Significance.” Iesus Aboensis: Abo Akedemi Journal for Historical Jesus Research 2 (2017): 79.

[2] Craig Keener, John: A Commentary, p. 736.

[3] Ambrose, Letter 25 (50 in later eds), 4.

[4] See Manson, T. W. “The Pericope de Adultera (Joh 753–811).” ZNW 43 (1952 /53) 255–256.

[5] St. Ambrose, who had a legal career before becoming a bishop, gives a great legal analysis of this last point in his Letter 68 (about which more later).

[6] Here I am using throughout the first-person singular of both verbs, which is the way a general reference to a verb is given in Greek, because the actual tenses used are less easy to recognize to those who don’t know Greek

[7] For this see the excellent treatment in Chris Keith, “Jesus Began to Write: Literacy, the Pericope Adulterae, and the Gospel of John.” Chris Keith Ph.D. thesis, University of Edinburgh. 2008, pp. 167-92. https://www.era.lib.ed.ac.uk/handle/1842/2595.

[8] Augustine Commentary on John’s Gospel, 33, 5 (transation mine). A number of commentators have pointed out that, contrary to what most readers suppose, Jesus did not actually forgive the woman’s sin, but lets her go and invites her to repent (“sin no more”).

[9] Ibid.

[10] Works by some of the advocates of this position, including John Howard Yoder and Charles Milligan,  are listed by Stephen A. James, “The Adulteress and the Death Penalty.” Journal of the Evangelical Theological Society 22:1 (March 1979):

[11] James, “”The Adulteress and the Death Penalty,” p. 48.

[12] Augustine, On Adulterous Marriages, 2: 6, 7.

 


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