Recently Hector Avalos has responded to a particular argument in my book Is God a Moral Monster? (Baker). In it, I follow biblical scholar Jerome Walsh’s interpretation of Deuteronomy 25:11-12: If two men, a man and his countryman, are struggling together, and the wife of one comes near to deliver her husband from the hand of the one who is striking him, and puts out her hand [yad] and seizes his genitals, then you shall cut off her hand [kaph]; you shall not show pity.
I first came across Walsh’s perspective by way of Richard Davidson’s book on sexuality in the Old Testament, Flame of Yahweh (Hendrickson)—a book I highly recommend. I follow both Walsh and Davidson on the view that this text is not referring to amputating the hand, but rather depilation. This was a punishment of humiliation involving shaving a woman’s pubic hair in the kaph—the curved region below the waist. I won’t elaborate on what my book says, but I’ll simply address Deuteronomy 25:11-12 in the bulk of this blog posting. In the post, I’ll address the question of lex talionis (“an eye for an eye”) and the work of Raymond Westbrook.
1. Preliminary remarks: I have been in communication with Jerome Walsh, who prefers to stay out of the discussion. Walsh has read Avalos’s post, though, and noted too that he did not see anything new in Avalos’s arguments that he hasn’t encountered before. He simply saw nothing linguistically to persuade him to alter his views.
Avalos’s repeated identification of kaph = “hand” as the “literal” meaning is misleading. While it may be the commonest meaning, the term has less-common usages too (the bowl of a spoon, the frond of a palm tree). It’s unproductive to start from the assumption that commonest meaning is the only one allowable unless one can prove otherwise. The point in the article is that yad tends to refer to the hand without connotation or nuance, or when the hand is envisaged, as an instrument of pointing, hitting, doing. Kaph, so far as he can see, connotes the hand as an instrument of grasping and holding, thus the curvature and the focus on the palm.
In Walsh’s estimation, Avalos seems to be operating from the position of a methodological absolutism: “X” is the common opinion, and unless one can definitively prove not-X, then one must espouse X. He doesn’t appear to leave much room for “more likely” or “less likely” as the possible evaluation of a hypothesis.
Avalos cites Marc Cortez for support: “The Law on Violent Intervention: Deuteronomy 25.11-12 Revisited,” Journal for the Study of the Old Testament 30:3 (2006), 431-47. As I note in my book, though, it is unfortunate that Cortez fails to interact with Walsh’s essay, which had been published two years earlier.
In correspondence with Walsh (May 2010), he commented on an online version of Cortez’s article. He pointed out that while Cortez dismisses Eslinger’s attempt to identify kaph with gynecological exactitude (and he can agree with Cortez on that point), Cortez does not deal with the fact that kaph is used not just for the palm of the hand, but for several other curved, arched objects, both corporeal (sole of foot) and not (bowl of a spoon, frond of a palm tree). Walsh’s argument simply treats kaph as the curve of the groin, a very likely meaning in Song of Solomon, and (pace Cortez) in Genesis as well.
Cortez wants to retain without discussion the understanding of kaph as “hand.” But Walsh notes that Cortez’s explanation of why a “talionic” law would equate “hand” as an instrument of offense with “palm of the hand” as the object of “cutting-off” is, basically, “why not?” That begs the question. Further, he ignores completely that there is no reason whatsoever for treating the qal of qatsats as if it were the piel. In the piel, it clearly means “to cut off.” In the few other instances of its appearance in the qal, it means “to cut (hair).” Why, in this unique case, should the qal be translated as if it were a piel?
Now, Walsh readily acknowledges that his article is not the standard reading of the passage, and that Cortez’s evaluation of others’ interpretations of Deut 25:11-12 is judicious, careful, and sober. He would agree with Cortez completely that the peculiarities of this unique law in the Israelite corpus have led scholars to some truly egregious attempts to make sense of its oddity. And Cortez is very good indeed at identifying the unpersuasive lengths to which some scholars have gone. But he, like all of those scholars, has not looked at the words. This is the contribution that Walsh’s article proposes to make. Instead of accepting unquestioningly that “you shall cut off her hand” is what the Hebrew words mean, he has argued that that is a misreading of the Hebrew terms. To put the disagreement in a nutshell, let me quote a line from Cortez’s article. Cortez says: “The first and most important question that must be addressed with respect to the woman’s punishment is whether or not it should be understood as an application of the lex talionis.” Not so. The first and most important question that must be addressed with respect to the woman’s punishment is WHAT THE WORDS MEAN. Only then can we even approach the question of whether or not the punishment is a talionic counterpart to the crime.
(a) Kaph does not refer to the “hand,” simply speaking. It refers to the hand as an instrument of containing (thus as a curved holder, often translated as the “palm of the hand”). Yad refers to the hand as an instrument of control, of holding, of pointing. To treat the two terms as synonyms in order to establish the talionic quality of the law is unconvincing.
(b) Kaph clearly can refer to the genital region. Even if one does not follow Eslinger’s particulars (and I most certainly do not), the uses in Genesis and Song make it clear that something below the waist is intended. Kaph can also refer to several other bodily and non-bodily curved objects.
(c) The verb qatsats means “cut off” in the D-stem (the piel). To assume that it means that in the qal has no justification in Hebrew. Our only qal examples of the verb other than the passage under consideration are universally accepted as meaning “to shave.”
Those observations invalidate the translation “cut off her hand”; Walsh’s proposal is an attempt to cope with that invalidation and offer an alternative that is consistent with what we know of Hebrew.
Here are further points to note:
2. Concerning kaph: Yes, kaph certainly does mean “whole hand” in numerous instances. It doesn’t refer only to the palm of the hand. Yad can be distinguished primarily by the nuance of grasping or holding (kaph) versus that of pointing or striking (yad), but there is clearly a great deal of denotational overlap. Therefore, there could be a talionic quality to the law, despite the shift from yad to kaph: she puts out her yad, but grasps with her kaph, which is the instrument of crime and therefore the object of punishment. (Others have argued, in somewhat the same vein, that yad means the hand-including-[part-of-]the-forearm, whereas kaph means the hand from the wrist down. Thus only the kaph gets punished, since the kaph is the specific part of the yad that touched the assailant’s genitals.)
Even though kaph refers preponderantly to the human hand, not to other objects, the meaning of kaph is not the starting point of Walsh’s argument. Given that kaph can mean other parts of the body as well, and that the usages in Genesis and in Song of Solomon indicate that it can be used of some bodily area below the waist, one shouldn’t foreclose the possibility of such a meaning here before having examined the rest of the verse. Eslinger’s arguments for a sexual referent (especially in the explicitly sexual context of grasping the assailant’s genitals) are strong.
3. On the verb qatsats: It is true that, sometimes, a verb can be used in both piel and qal in almost the same senses. But this is clearly not the normal practice with Hebrew verbs. The D-stem (the piel) transitivizes an intransitive qal, or (often) intensifies it. Sometimes it means something entirely different. Here the intensifying force is seems inescapable. Why assume that the qal and piel do mean the same thing unless that conclusion is inevitable? Otherwise, why distinguish two morphological categories?
Hezekiah “shaved off” the gold leaf from the Temple doorposts, using the D-stem of qatsats (2 Kgs 18:16). That is the reading of RSV, NRSV, NIV (and probably other versions as well); they translate it “stripped.” It is unconvincing. If the decoration is gold plate, one “removes” it or “cuts it off” (qatsats, D-stem), one does not “shave” gold plate. And if the decoration is gold leaf, which could theoretically be “shaved,” wouldn’t it make more sense to follow other versions (e.g., NAB, NJPS) in assuming that Hezekiah had the gilded doors and doorposts themselves removed and sent as tribute? In Walsh’s view, that is what is pretty clearly meant. Cogan and Tadmor, in the Anchor Bible, argue for “stripping,” and call the idea that Hezekiah “cut off” the doorposts “novel”; they then cite two passages (2 Kings 16:17 and 24:13) to support their idea. In Walsh’s reading, both passages they cite undermine their argument and demonstrate that qatsats in the D-stem clearly means to “cut up” or “cut off.”
In the qal, qatsats is very rare. Aside from Deut 25, it occurs only three times, always in the same phrase, and always in Jeremiah, to describe a particular group of desert raiders (Jer 9:25; 25:23; 49:32). There is nothing in any of those texts to suggest that this shaving was ritual, that it was considered “mutilation,” or that it deserves the term “hacking off” (which tries to reintroduce the intensification of the D-stem sub rosa). There is absolutely nothing in any of the three Jeremiah texts to indicate that the term refers to more than a distinctive hair-style (or perhaps beard-style), created precisely by the way the hair was cut or shaved (qatsats in the qal). (The Hebrew is, literally, “shaved at the edges”; “temples” is a more or less conventional translator’s guess as to what part of the cranium the “edges” are.) Far from being scorned as a form of mutilation, hair-shaving appears in approved Yahwistic rituals, as Walsh mentions in his article (see Numbers 6 on the Nazirite; Deut 21:12 [what appears to be a mourning ritual]; and especially Numbers 8:5-14, where the purification of a Levite in preparation for undertaking his sacred duties includes shaving all his hair, presumably including pubic hair).
In short, there is no evidence in any of the appearances of qatsats of an overlap between piel (“to cut off, to sever, to amputate”) and qal (“to cut [hair]”) meanings.
4. What of “show her no mercy?” It is true that the few other instances of this formula (apparently four, all in Deuteronomy) appear in contexts of serious crimes and punishments (usually, though not always, involving death). But it need not be assumed that the formula is appropriate only when such seriousness is the case. It seems to be a stereotyped legal formula, and that suggests that its function may be other than that of a literal admonition or an expression of outraged horror. Scholarly argument has been made that the force of this formula is to disallow the alternative of substituting a fine for the specified punishment. If that is the case, then it preserves the talionic relationship between offense and punishment (notice that the same formula is associated with the fundamental statement of talion in Deut 19:21) and does not allow the woman to escape her public humiliation by paying a fine (something her husband may have been quite willing to do for her, since she has saved him from a beating). But this does not require us to deem whatever she did as heinous as murder and other “show no mercy” offenses.
5. What of the Septuagint (LXX) and Aramaic translations? True, these translators render the verb qatsats as “cut off” (rather than “shave”), but the greater weight should be given to the Hebrew text.
6. A clear parallel in Middle Assyrian Laws (MAL) with Deuteronomy 25:11-12? A common argument in an attempt to show that Deuteronomy 25 refers to a literal amputation is that there is a purported parallel in Middle Assyrian Laws. However, the single most significant difference between the MAL (A ¶¶ 4) and Deut 25:11-12 is that the MAL explicitly cites the crushing of the man’s testicle(s). The biblical passage does not. One can’t formulate a law and leave out the specifics of the crime! True, the verb hzq can sometimes imply damage, but more often it does nothing of the sort. Therefore this law, as formulated, would apply to any woman who took hold of the assailant’s genitals whether or not she did any damage. The parallel with the MAL, as attractive as it seems superficially, founders on that difference. Moreover, there is no sense of proportion (as there is in the MAL). The verb hzq might mean simply grab, or grab (roughly), or grab (and squeeze), or grab (and crush), each of which—if this is a talionic law—would require a different punishment (as in the MAL); but there is no such recognition of degrees of damage and correlative degrees of punishment. And therefore the mutilation-as-punishment mandated by the MAL can’t be used to argue for a “mutilation” interpretation of Deut 25:11-12. Rather this passage refers to a punishment of humiliation. As Raymond Westbrook, in his History of Ancient Near Eastern Law, writes of punishment in the ancient Near East: “Humiliation was a valid form of punishment.”
At any rate, Walsh’s case for depilation should not be so easily dismissed. In fact, Bruce Wells, who has coauthored Everyday Life in Biblical Israel with Raymond Westbrook, recently reviewed a summary of Walsh’s case for depilation rather than mutilation. He concurred with Walsh!
As for the interpretation of Deut 25:11-12, I find the summary that you gave quite convincing. In fact, it fits the talionic pattern better than the traditional interpretation. If a second edition of Everyday Law ever comes out (and I have no idea if this will ever happen), I will make it a point to include this interpretation. The only thing I would add is that, according to my understanding of biblical and ANE law in general, compensation in place of the shaving would still have been an option in situations like this.
7. A Misuse of Raymond Westbrook’s Work? Finally, let me comment on Avalos’s “challenge” to both Matt Flannagan and me. We argue that the three talionic passages (“an eye for an eye”) in the Pentateuch do not require bodily mutilation but make provision for monetary compensation. For example, Exodus 21:22-25 makes room for such monetary provision in repayment for physical injury. Matt Flannagan and I have appealed to various scholars, including the late Assyriologist Raymond Westbrook, for support on this. Avalos has thrown down the gauntlet to give a simple “yes” or “no” on whether Westbrook viewed one of these talionic passages—namely, Leviticus 24:17-22—literally.
First, here is Avalos’s initial charge against Flannagan: “Why Dr. Flannagan Fails History”.
Westbrook has made himself quite clear in Everyday Law in Biblical Israel: An Introduction [Louisville: Westminster/John Knox Press, 2009], pp. 78-79). Therein he discusses how later Rabbinic literature, and specifically Mekhiltah Neziqin 8 to Exodus 21:24, claimed that “An eye for an eye’ [means] money.”
Westbrook comments: “This interpretation seems strained to a modern reader. The introduction to the formula in Leviticus 24:19 is unequivocal: “If anyone maims a fellow, as he had done so shall it be done to him” [emphasis Avalos’s].
Then Matthew Flannagan responded to Avalos’s charge (“A Reply to Hector Avalos’s ‘Why Flannagan Fails History’”) that Flannagan had egregiously misrepresented Westbrook on the above passage. Flannagan interpreted Westbrook as saying that even though Lev. 24:19 (seemingly) presents an unequivocal formula for literal maiming and that the rabbinic interpretation (“eye for eye” means “money”) seems strained to modern readers, this rabbinic understanding is actually on track.
In a June 30 comment by Avalos responding to Flannagan’s “Reply to Hector Avalos,” Avalos says this (my italics):
Note Westbrook’s phraseology: “Scholars have therefore tended to see the rabbinic opinion [that ‘an eye for an eye’ means ‘money’] as a disguised reform.”
The scholars who see the Rabbinic monetary payments as a “reform” are the ones that are incorrect in Westbrook’s opinion, and NOT the ones that hold that Lev. 24:17-22 was meant literally. That should be clear if you had read enough of Westbrook’s works, which clearly you have not done.
Why not just admit you [Matt Flannagan] are wrong instead of making it worse for yourself?
Then atheist John Loftus, confident in Avalos’s judgment, piled on and proceeded to accuse Flannagan and me of “lying for Jesus”—or something close to it: http://debunkingchristianity.blogspot.com/2011/07/only-paul-copan-and-matthew-flannagan.html.
(Ironically, I had posted comments in response to Matt Flannagan’s “Reply to Hector Avalos,” as Matt Flannagan pointed out how Hector Avalos had misrepresented me as well. Did Avalos admit he was wrong, despite my follow-up comments further exposing Avalos’s misrepresentation? Not at all. He asserted he stood by these misrepresentations as accurate and then engaged in what struck me as diversionary tactics, calling on me to declare whether Westbrook’s writings on Lev. 24:17-22 consider lex talionis literal or not.)
Well, Avalos has actually made it worse for himself because it is he—not Flannagan—who has misread Westbrook! Just to confirm this, I contacted Westbrook’s co-author Bruce Wells, who co-wrote the above-cited book, Everyday Law in Biblical Israel. Here was Bruce Wells’ email reply to my query about what he and Westbrook meant in their book (pp. 78-79) about the meaning of the Leviticus 24 passage in connection with the rabbinic “reformed” view of monetary compensation:
First, it sounds as if the statement of talio in Leviticus is final and that there is no room for a monetary punishment in place of the physical punishment. It’s not that the Leviticus text explicitly excludes monetary punishment, but it makes no reference to it whatsoever. What we were trying to say is that, even though it sounds “unequivocal,” it’s not. There would have always been the allowing of a monetary punishment to take the place of the physical punishment. Second, we were trying to say that the rabbis’ interpretation was actually on the right track in this case (we say elsewhere, I think, that the rabbis were often not on the right track). The eye-for-eye principle meant that the appropriate amount of money for an eye should be paid and no more. Third, when we say that the penalties don’t seem to fit, we mean something like this. The Exodus text is about striking a pregnant woman and possibly injuring the fetus. The text goes on to say “tooth for tooth,” but teeth wouldn’t be involved in the event, regardless of whether one thinks that injury to the woman is paramount in the text or injury to the fetus…. we believe that compensation (a monetary fine/punishment) was always allowed to take the place of the literal, physical punishment.
Now Matt Flannagan and I can put it to Hector Avalos: “Why not just admit you are wrong instead of making it worse for yourself?”
 Jerome T. Walsh, “You Shall Cut Off Her…Palm? A Reexamination of Deuteronomy 25:11-12,” Journal of Semitic Studies 49 (2004): 47-58.
 Raymond Westbrook, History of Ancient Near Eastern Law, Vol. 1 (Leiden: Brill, 2004), 75.
 Email from Bruce Wells, 7 July 2011.
 Wells’ final point is one with which I would concur and would include in my second edition of Is God a Moral Monster?!
 The email from Bruce Wells was from 6 July 2011.
Westbrook and Wells also write this about the talionic passages:
The three references in the Torah to talio all consist of a list of injuries and maimed body parts, with slight variations in detail. Curiously, in none of the contexts in which they occur do they quite seem to fit. In Exodus, the list follows a case involving the miscarriage of a fetus; in Leviticus, that of a blasphemer, in a sequence that begins with the punishment of homicide and compensation for killing a sheep. In Deuteronomy, it supposedly represents the punishment of a false accuser. The overall impression is of an ancient maxim, applied wherever “measure for measure” is to be the standard of justice, whether or not the case involves any of the physical injuries listed. Raymond Westbrook and Bruce Wells, Everyday Life in Biblical Israel (Louisville, KY: Westminster John Knox Press, 2009), 79.