Theonomy’s most distinct aspect is its insistence that punishments for crime revealed in Old Testament law are eternal standards of justice and remain binding today. Most other views of Old Testament law either dismiss them entirely or relegate them to a category of the law they say no longer applies in the New Testament. In the last chapter, we discussed aspects of the law that no longer apply, and others that do. In this chapter we will show the moral principle behind the judicial penal sanctions that do abide and why that principle demands that they must continue today as well.
Most Christians do not even consider the fact that Old Testament law provides a comprehensive system of justice including criminal justice. This is perhaps owing to the fact that so many dismiss the Old Testament as being fully replaced by the New. But the New Testament addresses the Old Testament criminal justice system, and it does so in glowing terms of commendation. We have already seen how Paul explains its role in 1 Timothy 1:8–11. We also noted where Hebrews says the Mosaic Law “proved to be reliable,” and that by it “every transgression or disobedience received a just retribution” (Heb. 2:1–2).
We need to pay close attention to this teaching. The book of Hebrews is dedicated to proving that the New Covenant is superior to the Old in every way. It has a superior mediator, superior sacrifice, superior temple—it is superior in every way because of Christ. Yet even though the book is filled with comparisons that show the Old Testament system to be “obsolete,” “old,” and “ready to vanish away” (Heb. 8:13), there is one aspect of the Old Testament it does not criticize but rather upholds, and that is the penal sanctions. These it simply calls “just” and warns its readers not to drift away from it (Heb. 2:1). It should be clear from this that these laws were not part of those intended to be replaced by the coming of Christ. If there were any place in the Bible we would expect an argument for the end of the Old Testament standards of justice, it would be here in Hebrews. But instead we find just the opposite: a statement supporting their abiding validity. If Hebrews says we ought to pay close attention to these laws, I consider that an exceedingly strong reason to pay close attention to them.
Indeed, we should pay close attention to the simple but powerful description Hebrews gives to these penalties: “just.” When God provides standards of justice, we ought to be at pains to obey them in our societies and governments. We should do so for one simple reason: what God says is just is just, and any other standard can only be unjust. Without obedience to God’s laws, our systems of justice are not so much systems of justice as they are systems of injustice.
This word “just” demands our attention. The Greek word is derived from the same word as “righteous.” It is not referring to a particular instance or application of the law, but is describing a quality of the judicial law. “Just” refers to a principle that runs throughout the administration of God. His system of justice is “just” or “righteous” throughout.
For this reason, Psalm 19:9 says, “The judgments of the LORD are true; they are righteous altogether” (NASB). The word “judgments” here refers to a particular aspect of God’s law. The law as a whole is usually called torah in Hebrew, and the same word is often used to refer any given “law.” Mitsvah is also a general term, usually translated as “commandments.” The same is generally true for the word mishmereth, usually translated “charge.” But there are other words that usually refer to more specific aspects or perspectives of the law. Chuqqah, for example, is often translated “statutes” and usually refers to priestly ceremonies or rites. Another of this type is what we find here in Psalm 19:9—mishpatim. This word refers almost always to God’s law as applied in particular cases and in concrete situations. In other words, it refers to judicial law. It is best translated as “judgments,” but is often found as “ordinances” or “rules” in modern translations.
This view is confirmed when we simply study God’s law. The Ten Commandments are given in Exodus 20. These are the foundational principles of God’s law. They are summary principles of law for all of life. As summary principles, they must be applied to particular cases in real life. In the very next chapter of Exodus, God begins giving us just such a series of concrete applications. These laws span Exodus chapters 21–23, and we call them “case laws,” “judicial laws,” and sometimes “civil laws.” And what word does God use for these laws? Exodus 21:1 reads, “Now these are the judgments which thou shalt set before them” (KJV). The word for “judgments” here is mishpatim.
The Psalmist uses several different words to highlight aspects of God’s law. Certainly some of this can be attributed to the nature of poetry. But certainly, under the inspiration of the Holy Spirit, this poet was not merely wielding poetic license or variety. When it comes to God’s mishpatim, there is certainly a shade of meaning intended to call to mind the heading of God’s case laws, Exodus 21:1, and certainly the description fits. God’s judicial law is true and “righteous” (or “just”) altogether—in its entirety.
The description is even more intense yet. The word “righteous” in Psalm 19:9 is actually a verb: it means that God’s judicial law is righteousness in action and that the justness of those laws is vindicated whenever they are applied. It means that justice can prevail in the land only when God’s judgments are obeyed and applied.
The Scriptural teaching, then, is that God’s judicial laws are righteous and just altogether, and that every infraction was assigned a “just” penalty (Heb. 2:2). As far as our need to understand God’s revealed system of justice, we could really stop here: Scripture has spoken. There need be no other inquiry beyond this. But God is gracious. He has not only given us bare fiat and commanded us to obey without understanding. He has given us a system of justice composed of general laws (laws of love and the Ten Commandments) as well as case examples of how to apply those laws (judicial laws) so that they are applied justly. In other words, He has given us a principle by which justice can be done in any case, and this principle is directly revealed in the law and reflected in every single law He revealed.
So what is this principle?
Once we see the eternal moral principle running throughout the law including the judicial laws and their penal sanctions, we will better understand why those laws and sanctions are indeed “just” and why no other standard could be. So what is this principle? Simple: it is traditionally called the lex talionis. It is stated in the judicial law like this: “you shall pay life for life, eye for eye, tooth for tooth, hand for hand, foot for foot, burn for burn, wound for wound, stripe for stripe” (Ex. 21:23–25). The principle is repeated in Leviticus 24:24 and Deuteronomy 19:21.
The lex talionis is often misunderstood in a couple ways. First, its name. It is often mistranslated as “the law of the talon.” Such an unfortunate mistake perpetuates the popular misconception that “an eye for an eye” is about personal revenge or physical violence, which is the second way it is misunderstood.
Let’s set the record straight. Lex talionis is not properly translated as “law of the talon,” but as “law of the talion.” “Talion” is a legal term taken from the Latin word talis. It means “such” in the sense of “same as.” A related English word derived from this is not “talon” (which comes from a completely different derivation) but “retaliate.” Even here, however, we must be careful, for we usually use the word “retaliate” in terms of individuals retaliating. Instead, we need to consider it in the sense of state-sanctioned restitution or punishment that is precisely measured to match the severity of the infraction or crime.
The lex talionis says essentially one thing: the punishment must fit the crime—no more, no less. It is a rule that says justice must be done in two ways: first, the crime should be punished, and second, the state must administer punishment only to a requisite extent and in a particular way proportionate to the crime.
This is not just one more law among others, but rather is a principle of law that runs through all the others, much the same as the principle of love summarizes the whole of the law. Lex talionis is in itself the principle of justness, fairness, equity in redress of injury or punishment of crime. But this means it is more than any old judicial law allowed to be set aside in “more civilized” or modern societies, or abrogated in New Testament times. It is, in and of itself, the principle of justice. It is thus a moral and eternal principle for all times and in all places.
Since this law is the revealed standard for restitution and punishment, we can only understand God’s own penal sanctions, as revealed in the case laws, as perfect expressions of this principle. God who is Himself just, and is the Author of both the principle and the case applications of it, can do nothing other than provide just punishments.
Anyone who wishes to deny these facts will find himself in the unenviable position of arguing that at least some, if not all, of God’s laws and prescribed sanctions are unjust and that man’s laws are more just than God’s. If this were not absurd enough on the face of it, such a proponent would then have to list for us which of God’s punishments are unjust and why.
The lex talionis, then, is the moral element that exists in and throughout the civil penal sanctions. It is the principle of justice. But this means that the principle is eternal and thus abiding for today. It also means that God’s penal sanctions, begin perfectly just, must also abide today.
It is easy to see how directly this principle is related to what is normally considered the core, if not the whole, of the moral law: that is, the Ten Commandments. While perhaps not immediately apparent, you only need to consider the role and behavior of the state in punishing crime and it will become so. If the state punishes more than necessary, then it will by default be engaging in theft, murder, false witness, or violence of its own—clear violations of moral law in the act of civil punishment.
For example, biblical law prescribes restitution for cases of theft. The restitution must fit the crime. According to God, an unrepentant thief who is caught with the stolen property in possession is required to pay back double the value of the stolen property (Ex. 22:4). If he repents, confesses, and returns the property before he is caught, he is required to pay only the property plus twenty percent (Lev. 6:4–5). In either case, the type of penalty is restitution, and the amounts are set by God. Both the penalty and the amounts are just by God’s determination. The principle is clear: the issue is property and wealth, and the punish deals proportionately with property and wealth. The restitution is in kind because the property (or equal value thereof) must be restored. The penal aspect is also in kind because it is equal also: the loss that the thief intended to impose on the victim falls back upon himself. Not only has he restored the property, he is required to pay double, and thus ultimately loses the exact amount he inflicted upon the victim. Further, the victim not only recovers his stolen wealth, the double payment compensates for the lost time and use of the original.
Compare this just system to non-biblical systems of justice. For theft, the Quran prescribes the following: “As to the thief, Male or female, cut off his or her hands: a punishment by way of example, from Allah, for their crime” (5:38). Is this in any way equitable to the crime? Perhaps only in an abstract symbolic way. But in short, no. It is a barbarous punishment which does nothing to recompense the victim of the theft, and imposes not only a gruesome, violent punishment upon the thief, but also imposes a lifetime disability. With this comes a lifetime economic reality: the one-handed man will not only not be able to steal with that hand again, he will also not be able to work or produce with it for the rest of his life. It is not a stretch to say this punishment is unjust by virtually every measure.
But compare also our own modern form of punishment. American courts require restitution to be paid. That much is good, although sometimes a judge may require only partial restitution based on the convict’s ability to pay, and that is not biblical. But then they add on top of this, too. Even for misdemeanor petty theft and a first-time offense, in most states, a convict can expect fines up to $500 or $1,000, and up to one year in jail. For felony theft (usually over $1,000 of value) fines and jail time increase. In serious cases of repeat offenders, fines can exceed $100,000 and jail sentences up to 20 years. These fines are not paid to the victim but to the state.
Is this a system in which the punishment fits the crime? While it certainly is a lot better than chopping off people’s hands, it is still not equitable. Imprisonment alone serves no good purpose in such a case, and in fact often works against its purported goal of “rehabilitation.” Often, petty criminals join gangs in prison or associate with more hardened criminals. They leave prison a greater threat to society than they entered. There is much more we could say about this. In short, our modern penal system in regard to theft does not measure up to God’s standards of justice. It punishes more than is required and in ways that have little to no bearing on the nature of the crime.
So what must we say about the state when it exacts more than is fitting for the crime? If the exaction is in terms of money, we must judge the state to be a thief also. In short, by violating the lex talionis principle, the state ends up violating the moral law of God—the law against stealing. If such an exaction is in terms of prison time, however, the state is guilty of kidnapping. If it is in terms of excessive force, the state is guilty of violence. Applying this principle across the board, you can see how the state can be guilty of virtually any of the moral laws of God, and the most common reason for which it is guilty is by violating the lex talionis.
The state, however, also must not punish less than the crime. If it punishes less than is requisite, then it can be said to be complicit to a certain degree, by its negligence, in the crime itself. If, for example, it refused to impose full restitution in a case of theft, the victim would not be made whole and his condition as a victim would now be sealed by court order. Thus the court has become complicit in the theft.
Likewise, in various ways, the state can be complicit in any crime: sexual immorality, blasphemy, and much more. It can be a tool to miscarry justice, and it can be a tool of envy and inequity. It can be all these unjust things in the name of justice.
All of these things are either prevented or prohibited by the judicial law of Moses in addition to the Ten Commandments of the moral law, and yet they are nothing more than applications of that moral law to the civil realm and the punishment of crime. All of them can be summed up in the famous maxim, “Eye for an eye, tooth for a tooth”—meaning, the punishment must always and only be equitable to the crime.
When critics of Theonomy argue, therefore, that all or most of the judicial penal sanctions in Moses law no longer apply, we must appeal to the perfect justice of these laws, and particularly to the fact that they all are based upon the justice principle of the lex talionis. From the perspective of the perfect justice of Old Testament law, we have to ask the critics of Theonomy: in which of the judicial laws of Moses did the punishment not fit the crime? We can go further: in which did the penalty not fit the crime perfectly? If you answer any positively, you call God unjust. But if you agree they are just, and yet still say they no longer apply, then you are saying justice is no longer obligatory for modern states. You have unleashed a tyranny, or justified anarchy and lawlessness, as the case may turn out to be.
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