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

In his article, Nathan Mastnjak writes, “The translation ‘by a human shall that person’s blood be shed’ is not strictly impossible, but given the norms of Classical Hebrew grammar, it should be viewed as prima facie unlikely especially since there is a much more plausible translation that is contextually appropriate and grammatically mundane.” This has it completely backward. It is Mastnjak’s claim that the בin Genesis 9:6 be construed as expressing price or exchange that, while not strictly impossible, flies in the face of Hebrew lexicons and grammars – in contrast to the standard translations (both Jewish and Christian) which are contextually and canonically appropriate and grammatically mundane.

Mastnjak rightly examines both grammatical issues about the specific phrase translated in the NRSV as “by a human shall that person’s blood be shed” (Gen 9:6) and contextual issues arising from its literary connection. Unfortunately, both aspects of his argument are seriously flawed and completely ignore the mountain of scholarship, Jewish and Christian, medieval and modern, which support the traditional translations. The implications of the traditional translations, as Mastnjak correctly diagnoses, install “the death penalty as a common principle of the Natural Law and thus would make it be applicable and theoretically usable by all human societies.” This includes recent Catholic scholarship that explicitly supports Pope Francis in his desire to abolish the death penalty but concedes that the God who executed retribution for violence in the flood delegated in Genesis 9:6 this power to humans created in the image of God. And it goes at least as far back as the Tosefta in the late second century. The Tosefta regards the establishing of human courts of justice to administer the death penalty as part of the Noahic code in Genesis 9.

Mastnjak’s central grammatical points are that “Of the hundreds of passive verbs in the Hebrew Bible, the grammarians can find only a handful of possible cases where the agent of a passive verb is explicitly expressed” and that a frequent usage of the Hebrew preposition ב is “to express price or exchange.” One problem for Mastnjak is that major lexicons and grammars with entries on the Hebrew preposition בare well aware of both these facts and prefer to render the בin Genesis 9:6 not as a בpretii expressing price or exchange but as indicating that humans are involved as the instrument through which murderers will be executed. These lexicons and grammars include GKC (the grammar by Gesenius-Kautzsch-Cowley), BDB (the lexicon by Brown-Driver-Briggs), BHRG (the reference grammar by van der Merwe-Naudé-Kroeze), IBHS and HSTE (the syntax grammars 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 an example of the בpretii but includes it straightforwardly as an example of בof agent). 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 that the construction need not be an agent of a passive verb for Genesis 9:6 to establish the death penalty for murder as a standard judicial principle. Genesis 21:12, another construction with a passive and a בplus noun segment with human semantics, is plausibly translated “it is through Isaac that offspring will be named for you.” Although Isaac is not the direct agent here, without Isaac’s involvement the people of Israel as Abraham’s quintessential offspring would not have existed. Such a usage applied to Genesis 9:6 would have emphasized humans not as the agents of execution but that it is through humans sentencing the murderer that the murderer’s blood would be shed. This would still entail an establishment of capital punishment.

And this is precisely how two of the major targums (early Aramaic translations, which often engage in elaboration) translate the verse. Targum Onqelos renders the clause, “He who sheds the blood of a human before witnesses, through sentence of the judges shall his blood be shed.” More extensive legal codes in Torah prescribe the presence of two or three witnesses as a necessary condition for a murderer to be executed. Targum Onqelos clarifies that Genesis 9:6 does not override this condition. Targum Pseudo-Jonathan further expands: “Whoever sheds the blood of a human in the presence of witnesses, the judges shall condemn him to death, but whoever sheds it without witnesses, the Lord of the world will take revenge of him on the day of great judgment.” Targum Pseudo-Jonathan also provides a rebuttal to Mastnjak’s second argument – that the context of the preceding verse, Genesis 9:5, where God requires an accounting for human blood shed by animals or humans, precludes capital punishment in Genesis 9:6. Pseudo-Jonathan clearly includes the context of Genesis 9:5 in its understanding of the following verse; God authorizes capital punishment in circumstances of due legal process where the evidence is clear but will personally revenge the murder victim otherwise.

The third problem for Mastnjak on the grammatical side is that the two resources he does cite do more to hurt his position than to help him. His first resource is a paragraph in a four page book review of a Hebrew grammar, not the type of source one would expect to carry the weight of refuting over two millennia of Jewish and Christian interpretation of Genesis 9:6. His second resource, the Hebrew grammar by Joüon and Muraoka, has higher renown but argues against Mastnjak’s position.

First, here is page 151 of Dennis Pardee’s book review in volume 53 of Journal of Near Eastern Studies (1994) of Waltke and O’Connor’s An Introduction to Biblical Hebrew Syntax:“Occasionally they give in to the norms of Indo-European syntax or do not indicate the rarity of a given construction. 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). Not only have they omitted a statement regarding the rarity of the construction but most of their examples can be explained, within the terms of the Hebrew prepositional construction, otherwise (b in Gen. 9:6 = b of price; bhm in Exod. 12:16 = ‘among them’).” Unfortunately, Waltke and O’Connor only cite three examples of passive involving ב of agent (Gen 9:6; Exod 12:16; and Deut 33:29), and I would go farther than Pardee and argue that Exodus 12:16 is better translated “among them” than “by them.” Exodus 12:16 is not construed by other grammarians as indicating an agent. Genesis 9:6 is the verse under dispute. Tellingly, even Pardee does not object (in this book review anyway) to regarding Deuteronomy 33:29 as a ב of agent or at least some instrumental usage. But the list of plausible passive constructions with a ב of agent extends beyond those mentioned by Waltke and O’Connor. Leaving the disputed Genesis 9:6 aside, the examples of the construction in question in at least one of DCH or BDB are “was commanded 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” (Hosea 12:13), and “by you, the orphan finds mercy” (Hosea 14:3). In short, Pardee is correct that Waltke and O’Connor could have done a better job on this construction, but if Mastnjak had consulted some lexicons in addition to a book review, he would have discovered that the construction is not as rare as he had presumed.

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

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

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

Mastnjak’s grammatical argument regarding באדםis a complete bust. His second argument is likely worse. He states that context supplies the “implied agent responsible for shedding the blood the murderer. We need search the context no further than the immediately previous verse, Genesis 9:5: ‘But indeed I will seek your blood for your lives. From every beast I will seek it. From the hand of man, each man for his brother, I will seek the blood of a man.’” And when Mastnjak says, “we need search the context no further than the immediately previous verse,” he backs 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 being filled with violence to which Genesis 9:5-6 is a new response; the historical-comparative context of other flood stories in the Ancient Near East; the historical setting of the author of Genesis 9 living at a time when societies including Ancient Israel had law codes prescribing capital punishment for murder; and the literary setting of Genesis 1-11 which is replete with etiologies of how present institutions and other realities originated.

In fact, in his contextual argument for how to translate the first half of Genesis 9:6, Mastjnak does not even consider the second half of the verse, whose discussion of the image of God clearly connects it back to Genesis 1:27-28. Genesis 9:6b looks like a narratorial comment within the divine speech³ and certainly is a clause which purports to explain the rationale for the prescription in the first half of the verse; surely at least 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 the world in which somehow – he does not say how – he himself will intervene to avenge any creature, man or beast, that violates the sanctity of human life. This commitment to avenge the blood of any manslayer interprets the following verse, 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 weakness compared to the traditional translation which shows one manner in which God punishes the murderer (no one believes that all murderers are executed). Victor Hamilton points out that reading Genesis 9:6 as “for man shall his blood be shed” entails that Genesis 9:5-6 exhibits a tautology; and Kenneth Matthews argues, “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 that those who translate Genesis 9:6 in the traditional manner have not taken the context of the previous verse into account; they most certainly have and that is part of why they reject seeing Genesis 9:6 as an example of ב pretii.

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

Mastnjak is right that there is a certain vagueness concerning the agent of execution. But this fits with 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. Before the flood, as it should seem by the story of Cain, God took the punishment of murder into his own hands; but now he committed this judgement to men, to masters of families at first, and afterwards to the heads of countries.”⁵ Likewise, John Walton writes, “Accountability to God for preserving human life is put into humanity’s hands, thus instituting blood vengeance in the ancient world and capital punishment in modern societies. In Israelite society blood vengeance was in the hands of the family of the victim.”⁶

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

We now turn to the context of Genesis 9:1-7 as the conclusion and remedy episode to the Genesis flood narrative, comparing and contrasting it with the flood account in the Atrahasis Epic. Tikvah Frymer-Kensky writes, “The structure presented by the Atrahasis Epic is clear. Man is created … there is a problem in creation … remedies are attempted but the problem remains … the decision is made to destroy man … this attempt is thwarted by the wisdom of Enki … a new remedy is instituted to ensure that the problem does not arise again.”¹⁰ In Genesis, a similar structure occurs with less emphasis on earlier remedy attempts and with God paralleling both the role of the main gods to destroy human beings and Enki’s role in providing a means of escape for Noah/Atrahasis. Comparing these stories helps us focus on the reason for the flood and on the changes made so that the world after enabled the continued existence of human beings.¹¹

In the Atrahasis Epic, the problem was overpopulation. This is emphatically not the case in Genesis. God’s speech in Genesis 9:1b-7 is structured so that introductory commands to be fertile (Gen 9:1-b) and concluding 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 assertive that animals will fear humans (Gen 9:2a), an exercitive granting humans dominion over animals (Gen 9:2b, linking back to Gen 1:28), a permission to eat animals (Gen 9:3), and a restriction of the permission by prohibiting the eating of blood (Gen 9:4). If the Jewish understanding is correct that Genesis 9:2-4 signals that prior to the deluge humans were forbidden to eat animals (Genesis 1 contains a permission to eat plants, but no permission to eat animals or prohibition thereof is mentioned), then the antediluvian mandating of vegetarianism might have been a contributing cause to the violence. Against this interpretation is that the distinction between clean and unclean foods is mentioned in the flood story, or in one of its sources, and that the text makes no link between human dietary habits and the divine decision to bring about a flood.

In any case, Genesis 9:5-6 which concerns human blood shed must be read as the remedy to the violence filling the earth which Genesis explicitly 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 in Genesis from the ten generations between the expulsion from the Garden and the bringing of the flood. Two of these, the Cain and Abel story (Gen 4:1-15) and the tale of Lemech (Gen 4:19-24), concern the shedding of human blood.”¹² Frymer-Kensky then discusses the remedy of Genesis 9:1-7, developed in later Judaism 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 9:6 contains “the declaration of the principle of the inviolability of human life with the provision of capital punishment for murder.”¹⁴ Nahum Sarna, justifies rendering Genesis 9:6 as “by man,” indicating the instrument of punishment, similarly sees it as a remedy to the pre-flood situation: “Human institutions, a judiciary, must be established for the purpose. This requirement seeks to correct the condition of ‘lawlessness’ that existed prior to the Flood (6:11).”¹⁵ Sarna also makes a grammatical argument about the crucial clause, namely that a phrase containing “blood” and the passive “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 another scholar who makes the connection between Genesis 9:5-6 and the shedding of blood in the Cain and Lamech stories as well as the violence in Genesis 6:11-13 that was the reason for the flood.¹⁶ Jancovic concludes, “God here delegates humanity with the power to punish human blood-shedding, and just as in the creation story, this delegation of power by God is justified by the creation of humanity in God’s image (Gen 9:6b).”¹⁷ He also connects the first plain poetry in Genesis 4:23-24 with the poetic structure in Genesis 9:6a as indicating that the permanent problem of violence had been solved in the lex talionis.¹⁸ Of course, by the time Genesis 9:6 was written, the lex talionis was a part of many ancient societies, so Genesis 9:6 can be seen as one of the many etiologies in Genesis 1-11.

None of these larger settings, which provide further evidence for the traditional translation of Genesis 9:6, are considered in Mastnjak’s contextual argument. And only by neglecting to discuss what other commentators have said about the grammatical considerations, the larger setting, and the immediate context in Genesis 9:5-6 can Mastnjak dare to conclude his article, “These observations on Genesis 9:6 do not, of course settle the question of the morality of capital punishment or how Pope Francis’s revision of the Catechism should be understood in relation to previous Church teaching.  But they do entail that if support for the death penalty is to be found in Sacred Scripture, it should be sought outside the covenant with Noah in Genesis 9.” No they do not entail that at all! The entire article is a bust.

Timothy Finlay, Professor of Biblical Studies, Azusa Pacific University

Notes:

¹ See Jenni, Beth, 178–80, but so already Ibn Ezra ad loc.

² Paul Joüon and T. Muraoka, A Grammar of Biblical Hebrew (Roma: Pontificio Istituto Biblico, 2006), 454.

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

⁴ Kenneth A. Matthews, Genesis 1-11:26 (New American Commentary; Nashville: Broadman & Holman Publishers, 1996), 405.

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

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

⁷ Gordon J. 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 draws from Maimonides’ Guide to the Perplexed.

⁹ David vanDrunen, A Biblical Case for Natural Law (Grand Rapids: Acton Institute, 2008), 14. VanDrunen comes from a Calvinist tradition. Calvin, like Luther and Wesley, regarded Genesis 9:6 as establishing capital punishment for homicide. See also Gerhard von Rad’s commentary on Genesis. Rad observed that Genesis 9:6 holds in tension the sanctity of human life (murder deserves capital punishment) and human responsibility to carry out punishment (executing a murderer is permissible). Similarly, Rusty Reno’s commentary on Genesis sees this tension as “the capacity to exercise authority for the sake of a higher principle” Genesis (Grand Rapids: 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, “Blood Revenge in Light of the Imago Dei in Genesis 9:6,” The Biblical Annals 10 (2020) 198-99.

¹⁷ Jancovic, 203.

¹⁸ Jancovic, 199.