The next few chapters just throw oodles of mini-rules at us, so I’ll be combining these two chapters (which have more of a social focus), and then looking at Deut. 23-25 on Monday (since they have more of a cultic/humanitarian focus). I’ve also grouped them up a bit in a way that made sense to me, just because I find it easier to discussion them that way. The groupings are, of course, entirely artificial and would not have been intended by the original authors.

Social Order

The first rule regarding social order seems quite positive. If you see someone’s livestock wandering about, you must take it back to its owner. If you don’t know who it belongs to, you can keep it – but only until its owner comes looking for it.

The same applies to anything a person might lose, including a “garment” – which is a bit of a change from the Canadian method of propping the article of clothing up on the top of a snow bank or fence, but likely just as effective.

This is all a bit of a repeat of what we saw in Exodus 23:4-5, except, as my study Bible points out, it “is recast in terms of the Deuteronomic conception of brotherly love” (p.242).

The next rule forbids a woman from wearing “anything that pertains to a man” (Deut. 22:5), and vice versa. I’ve often heard this quoted in the context of telling women not to wear pants, but that’s always struck me as a little strange given that the idea of pants being men’s wear is culturally-determined. And if the little pictures of biblical patriarchs I coloured in Sunday School are any indication, the fashion was not in much prominence at the time the Bible was being written. In fact, if anything, I can clearly recall giggling because David was “wearing a dress.”

All this is just to say that I think it’s a little silly to think that this passage is only about the New Woman and her trouser-wearing scandalous behaviour. I do think that there’s probably an argument to be made that this falls within the realm of priestly concern for clear categories – something we saw much of in Leviticus. But Kenneth C. Davis has a much more interesting explanation in Don’t Know Much About the Bible:

The cross-dressing prohibition was apparently aimed at keeping Israelites from taking part in Canaanite practices where worshippers simulated a sex change, perhaps as a fertility rite.

Canaanite religion centered on worship of Baal, a fertility god responsible for rain, obviously a significant figure in an agricultural community that bordered the desert. The rains came, according to Canaanite belief, when Baal had sex, with his semen falling in the form of life-giving rain. Instead of a simple “rain dance,” Canaanite priests imitated Baal by having sex, apparently coupling with men, women, and beasts. Many of the Mosaic Laws were specifically aimed at sexually charged Canaanite worship that must have held enormous appeal for many of the Children of Israel. (p.143)

“Sexually charged Canaanite worship” aside, my study Bible does seem to be thinking along the same lines: “The distinction between the sexes is based on God’s creation and should not be violated in any way as, for instance, in the simulated changes of sex in pagan religions” (p.242).

In Deut. 21, there’s a discussion of plural marriage – specifically, what happens if a man has a favourite wife. The first son born must be treated as the first-born son for inheritance purposes regardless of his father’s feelings towards his mother. Even if she is “disliked,” the first born son is entitled to the status of his birth order. The difference being that a first-born son is to receive “a double portion of all that he [the father] has” (Deut. 21:17).

What’s interesting about this is that it curtails, to an extent, the patriarch’s power. Despite being the head of the household, the father does not have absolute power over his family because, at least in some respects, they have inalienable rights of their own.

Of course, this goes directly against the story of Jacob and Esau (Genesis 25 and Genesis 27), where Esau is born first but is tricked out of his inheritance twice: first by promising it away himself, and the second time when his father unknowingly blesses the wrong son. What’s interesting about Jacob and Esau’s birth story in Genesis 25 is that God foretells that “the elder shall serve the younger” (Gen. 25:23), and then Jacob is born grabbing Esau’s heel. I wonder if these details were added to the story to make it clear that their inversion of inheritance laws was a one-time, special thing.

I’ve seen it argued that this reference to plural marriage merely attempts to regulate, not condone, the practice. God wants marriages styled after the “Adam and Eve” model, and that passages like these are merely God’s acknowledgement of the practice of plural marriage within the cultural context of his audience. He doesn’t approve, but since they’ll be doing it anyway, he’ll at least offer up some rules to regulate it.

The problem with this line of argument is that the Bible has made no qualms whatsoever in forbidding what must have been common cultural practices elsewhere. If the God of Deuteronomy disapproved of plural marriage, we would have been hearing all about it (as we have been with, say, local shrines). Far more likely, as far as I am concerned, is that the practice of plural marriage fell out of favour with Hellenisation, and that this shift is reflected in the assumptions made by the Bible’s various authors.

The final portion I want to discuss under Social Order covers the treatment of women taken in war. When a hottie is taken captive during a “war against your enemies” (Deut. 21:10) and the man would like her as a wife, he can bring her to his house. Once there, she must shave her head and cut her nails, and be given a full month to mourn her parents. Only after the month is done may the man “go in to her” (Deut. 21:13), thus making her his wife.

If, after all that, the man decides that she really wasn’t what he was expecting, he must set her free. He cannot sell her and he cannot treat her as a slave.

I’m no fan of the idea that a woman can be taken during war and forced to marry someone against her will – particularly when that someone was among those who killed her family. But if we make the cringe-y leap of accepting that as the default situation, it’s at least nice that she’s given some time to grieve before being raped, and that she must be treated as a wife rather than just a slave (for what little difference there is between the two given the compulsory nature of her marriage).

As Brant Clements says on Both Saint and Cynic: “The situation seems cruel, but the regulations actually provide the woman with some small measure of protection.”

Moral Laws

A man is not to “take” his father’s wife, nor “uncover her who is his father’s” (which I assume refers to non-wedded concubines, or perhaps slaves). The context suggests that the father’s wife is not necessarily the addressee’s mother – so either another wife in a plural marriage, or a subsequent wife. Either way, this is something a repeat of the rules given in Leviticus 18:8 and Leviticus 20:11.

Moses, by Salvador Dali

Moses, by Salvador Dali

If a man “takes a wife, and goes in to her” (Deut. 22:13 – possibly the absolute worst way to refer to a wedding and the night-of festivities) and then accuses her of having not been a virgin, then the woman’s parents must “bring out the tokens of her virginity to the elders of the city” (Deut. 22:15). These tokens are later referred to as “garments”, so I assume that it refers to the soiled bedsheets. Except that they are later described as being “found in the young woman” (Deut. 22:20), which is a little confusing since, if we’re referring to the hymen, it would have been broken when her husband “discovered” that she wasn’t a virgin (according to internal logic – more on that later).

If the parents produce these “tokens,” the accuser is to be whipped and fined 100 shekels of silver (to be given to the woman’s father, since he’s caused her unjust shame). She will then remain his wife and “he may not put her away all his days” (Deut. 22:19). I’m sure that would have been a very pleasant situation for her – nothing like being completely dependent on someone who hates you and tried to have you sent off. Wouldn’t it have been better for him to be fined an amount that would have supported her for her entire life, and then separated them?

If the parents can’t produce the tokens, the woman is to be taken to her father’s door and stoned to death. Because her having had sex is “evil [in] the midst of you,” but a man trying to to ruin a woman’s life by getting laid and then having her stoned to death is merely insulting the woman’s father. What happened to the rule in Deut. 19:18-19, where someone who makes a false accusation must be given the punishment the accused would have gotten?

So even taken on its internal logic, this whole bit is problematic. But beyond that, the idea that blood on the sheets or a hymen is proof of virginity is rather dubious. Perhaps the correlation would have been stronger in a milieu where horseback or bike riding wasn’t common and where girls might be kept home a bit more, but it’s quite common for girls to break their hymen long before they become sexually active. Not to get too far into TMI-land, I personally broke my hymen when I was around 7-8 years old, after a classmate kicked me in the crotch.

A hymen also may not break. Depending on how it happens to be shaped and how relaxed and aroused the woman is, her hymen could simply stretch around the penis, never tearing or bleeding.

So this whole assumption that there can be “tokens of virginity” rests on two assumptions: 1) That girls are all kept indoors and largely immobile from birth to marriage, and 2) That a woman’s groom is going to be rough and won’t pay attention to her comfort or pleasure. Plus a bonus 3) That all girls are born with hymens that are shaped in a uniform, predictable way. That’s a lot of assumptions.

There are those who would argue that virginity is an acceptable thing to demand from a woman, exemplified by Berend de Boer, author of Skeptic’s Annotated Bible Answered:

So what kind of sexual diseases might she carry? She might even be pregnant! Why would a man support her or her child in this case as he has been deceived?

He goes on about how the verse is actually “unfriendly” towards men because it means that they can’t just sleep around with virgins and then cast them off with impunity. Small comfort given the differences in standards of evidence and punishments.

But what about the diseases? Let’s say she truly isn’t a virgin and it is therefore conceivable that she may be carrying a sexually-transmitted disease, why is there no similar concern for her health? Where is it written that a woman who suspects that her husband may have been sexually active prior to their marriage can accuse her husband and have him stoned to death?

And what if he is tricked into raising another man’s child, so what? A child born to his home and raised by him is his. Is it truly relevant, especially in an age before DNA tests?

Of course, no mention is made of the possibility, if she truly isn’t a virgin, that her prior sexual encounters were non-consensual. If she was raped by her father, for example, she may have had no opportunity to present herself as anything other than a virgin to a potential suitor, but would still be stoned to death for the omission. And even that line of argument requires that we accept death as an acceptable punishment for sexual experience.

Yeah, I’m not a fan of this passage.

(For anyone interested, there’s a great discussion of virginity here.)

The last morality rule I want to talk about is, at least, a little more equitable, even if it is still rather on the barbaric side. If a man is found to be sleeping with a married woman, both are to be put to death. There is no penalty, apparently, for a married man who sleeps around, making it rather clear that the issue here is not extra-marital sex, per se, but rather the ‘theft’ of another man’s ‘property’ – much like taking someone’s car for a joyride.

Criminal Justice

Deut. 21 starts off with a bit of biblical CSI. If there’s been a murder and the killer is unknown, the elders and judges are to measure the body’s distance from the nearest cities to determine which has jurisdiction. The elders of the nearest city must take a heifer which has never been worked or pulled a yoke, then bring it to a valley with running water that is neither ploughed nor sown, and break the heifer’s neck.

That done, all the elders of the nearest city must wash their hands over the heifer and testify that they had nothing to do with the murder.

While the given for this ritual is to “purge the guilt of innocent blood from your midst” (Deut. 21:9), I was interested in the similarity to a superstition in Medieval Europe that the corpse of a murder victim will begin to bleed if touched by its killer (I believe I first heard of this in Pat McIntosh’s Cunningham series, but here’s a source to confirm it). Certainly, the act of laying out hands while swearing innocence suggests that, at least in its root, the ritual had to do with eliminating suspects.

If the murderer is known, or for any other of the millions of things given the death penalty in this book, the body is to be hanged on a tree. By context, I assume this to mean that the corpse, once stoned or whatever form the death penalty is supposed to take, is strung up.

The corpse is hanged, but then taken down for burial later that same day – it is not to stay up overnight.

Next, a “stubborn and rebellious son” (Deut. 21:18) is to be stoned to death by all the men of the city. There isn’t really any specificity here about what it means to be stubborn and rebellious, except that it means that the son isn’t obeying his parents. There’s a bit further on when the parents accuse him before the city elders and they must accuse him of being “a glutton and a drunkard” (Deut. 21:20), which suggests that we’re not talking about a toddler refusing his bed time. Still, though, it doesn’t say specifically that this applies only to adult children who are drunkards and gluttons.

There’s also no mention of mitigating factors, such as that the elders might decide if the demands made on the son are reasonable or not, or if the son might have written off his parents after years of abuse. Having many friends who grew up in very conservative religious families, I’ve heard far too much about how this passage (and ones like it, since not all of them are Jewish or Christian) has been/is being used to shame them for moving away from emotionally abusive and unhealthy relationships.

There’s also no  mention of the possibility of rebellious daughters. Quite an omission, if my own history is any indication.

The last bit of criminal law I want to talk about has to do with unmarried women having sex. There are two distinctions being made in this discussion: the first between betrothed and unbetrothed women, and the second between sexual encounters that take place in the city versus those that take place in the open country.

The discussion of betrothed virgins takes place first. If the sexual encounter takes place in the city, both man and woman are to be stoned to death. The woman is to be killed “because she did not cry for help” (Deut. 22:24), the man because the woman is betrothed and therefore totally already belongs to someone.

Obviously, this rule completely ignores the many occasions when a woman (or girl, since children can be raped too) might very reasonably not cry for help during an attack. Just as an example, we might consider a situation where she is being threatened with a weapon, or a case where she is being raped by a parent or brother and may be very young. Perhaps she was gagged, or knocked unconscious. Or perhaps she did cry out and was simply ignored. Trying to distinguish between “legitimate rape” and consensual sex based on whether or not the woman cried for help or sustained injuries trying to fend off her attacker(s) is hugely problematic.

If the betrothed virgin has her sexual encounter in the open country, the authors of the Bible acknowledge that perhaps she may have cried for help and not been heard by anyone. Therefore, if she claims rape, only the man is to be put to death and “in the young woman there is no offense punishable by death” (Deut. 22:26).

If the virgin is not betrothed, the location no longer matters. Either way, the man is to pay the woman’s father 50 shekels of silver and take her as a wife, unable to ever divorce her. That’s all well and good if the sex was consensual, but seems rather awful for the victim in a case of rape.

No mention is made of the possibility that a woman might rape a woman, or that a man might rape a man. Nor, even, that the woman might have been the aggressor in the “betrothed / open country” situation.

Victor Matthews has some interesting information about this passage in Manners & Customs of the Bible:

The Babylonian law states that a betrothed virgin who has been raped will be freed while her attacker is executed. The Deuteronomic law is more specific, making provision for the location of the crime, and using this as the basis for the punishment of the couple. If the crime took place within the city, both are to be executed, since the woman could have cried out for help. However, if the rape is committed in the “open country” where no one could hear her cries, she goes free, and only the man is executed.

The Middle Assyrian Law Code (ca. 1100 B.C.) also contains similarities to the biblical criminal code. MAL A.55 (ANET, 185) is concerned  with the rape of an unbetrothed virgin, who is still living in her father’s house. The rapist must pay a fine in silver to the father for the loss of his daughter’s virginity, and the father has the option of forcing this man to marry his daughter, with no possibility of divorcing her later. Deuteronomy 22:28-29 is almost an identical version of this law. Here, the rapist must pay a fine of fifty shekels of silver, and marry the girl without later recourse to divorce. (p.120-121)

Miscellaneous

Then comes the “miscellaneous other” category that no attempt at clean boxes is ever without (much as Levites might love their blemish-free).

Speaking of the desire for clean divisions, the people are not sow their vineyard with two kinds of seed, or plough with an ox and an ass together, or wear mingled garments (wool and linen together being the example provided). All of this is largely a repetition of Leviticus 19:19.

Then, from Numbers 15:38-40, the people are commanded to wear four tassels on their clothing – one for each corner of a cloak. Unlike the passage in Numbers, the command here is presented without justification, whereas in Numbers 15 the tassels are meant to serve as a reminder of God.

When harvesting eggs, the people are to take only the eggs, not the mother along with them. There’s the obvious possible reason that leaving the mother alive means the possibility of more eggs later, but the resemblance to the rule about boiling a kid in its mother’s milk makes me think that there’s something more cultic going on.

Finally, the people are told that they must build a parapet on any new roof so that no one can be injured by falling from it. As my study Bible points out, this does indeed sound like a great idea when flat-roofed houses are the norm. And Brant, I don’t know about product liability, but it does remind me of having to build a fence around my swimming pool as a teenager because doing so drastically reduced out liability insurance premiums!