What Does The Bible Say About Abortion?

The answer is nothing directly. However, there are a few things that are quite suggestive.

There are three positions I’ve seen people argue from the Bible:
1. Personhood begins at conception.
2. Personhood begins at some point in the womb.
3. Personhood does not exist in the womb.

I’ve used the term “personhood” because there may be cases where the fetus was not treated as a “person” but was still considered valuable (maybe partially as valuable as a “life”) as we will see. First an overview of some verses:

A. Verses Implying Personhood in The Womb

8 Your hands fashioned and made me;
and now you turn and destroy me.
9 Remember that you fashioned me like clay;
and will you turn me to dust again?
10 Did you not pour me out like milk
and curdle me like cheese?
11 You clothed me with skin and flesh,
and knit me together with bones and sinews.
12 You have granted me life and steadfast love,
and your care has preserved my spirit.
13 Yet these things you hid in your heart;
I know that this was your purpose.
14 If I sin, you watch me,
and do not acquit me of my iniquity.
15 If I am wicked, woe to me!
If I am righteous, I cannot lift up my head,
for I am filled with disgrace
and look upon my affliction.
16 Bold as a lion you hunt me;
you repeat your exploits against me.
17 You renew your witnesses against me,
and increase your vexation toward me;
you bring fresh troops against me.

18 “Why did you bring me forth from the womb?
Would that I had died before any eye had seen me,
19 and were as though I had not been,
carried from the womb to the grave.
20 Are not the days of my life few?
Let me alone, that I may find a little comfort
21 before I go, never to return,
to the land of gloom and deep darkness,
22 the land of gloom and chaos,
where light is like darkness.”

(Job 10:8-22 NRSV)

13 For it was you who formed my inward parts;
you knit me together in my mother’s womb.
14 I praise you, for I am fearfully and wonderfully made.
Wonderful are your works;
that I know very well.
15 My frame was not hidden from you,
when I was being made in secret,
intricately woven in the depths of the earth.
16 Your eyes beheld my unformed substance.
In your book were written
all the days that were formed for me,
when none of them as yet existed.
17 How weighty to me are your thoughts, O God!
How vast is the sum of them!
18 I try to count them—they are more than the sand;
I come to the end—I am still with you.

19 O that you would kill the wicked, O God,
and that the bloodthirsty would depart from me—
20 those who speak of you maliciously,
and lift themselves up against you for evil!
21 Do I not hate those who hate you, O Lord?
And do I not loathe those who rise up against you?
22 I hate them with perfect hatred;
I count them my enemies.
23 Search me, O God, and know my heart;
test me and know my thoughts.
24 See if there is any wicked way in me,
and lead me in the way everlasting.

(Psalm 139:13-24 NRSV)

Thus says the Lord who made you,
who formed you in the womb and will help you:
Do not fear, O Jacob my servant,
Jeshurun whom I have chosen.

(Isaiah 44:2 NRSV)

Thus says the Lord, your Redeemer,
who formed you in the womb:
I am the Lord, who made all things,
who alone stretched out the heavens,
who by myself spread out the earth;

(Isaiah 44:24 NRSV)

When Elizabeth heard Mary’s greeting, the child leaped in her womb. And Elizabeth was filled with the Holy Spirit

(Luke 1:41 NRSV)

For as soon as I heard the sound of your greeting, the child in my womb leaped for joy.

(Luke 1:44 NRSV)

Did not he who made me in the womb make them?
And did not one fashion us in the womb?

(Job 31:15 NRSV)

I’ve left out one that I don’t find as convincing. Jeremiah 1:5 seems to say that God knew Jeremiah before he was formed in the womb. This seems to be an argument for life starting before conception.

“Before I formed you in the womb I knew you,
and before you were born I consecrated you;
I appointed you a prophet to the nations.”

(Jeremiah 1:5)

A. Conclusion

You might argue that Jeremiah 1:5 destroys the previous arguments since it implies life before conception which is not possible. However, I think it is used metaphorically and there are less metaphorical indications of personhood beginning in the womb just like the baby in Elizabeth’s womb jumped. (indicating he was already aware of the Holy Spirit) These verses overall count against position 3. “Personhood does not exist in the womb”

B. Torah Ignores Fetal Personhood in Punishments of Sexual Immorality

When the daughter of a priest profanes herself through prostitution, she profanes her father; she shall be burned to death.

(Leviticus 21:9 NRSV)

No caveat is added to say “make sure she is not actually pregnant when you kill her.” Tamar’s father is assumed to be a priest since Judah declares this judgment on her and other than this case there is no other place where there is an example of this punishment:

About three months later Judah was told, “Your daughter-in-law Tamar has played the whore; moreover she is pregnant as a result of whoredom.” And Judah said, “Bring her out, and let her be burned.” 25 As she was being brought out, she sent word to her father-in-law, “It was the owner of these who made me pregnant.” And she said, “Take note, please, whose these are, the signet and the cord and the staff.” 26 Then Judah acknowledged them and said, “She is more in the right than I, since I did not give her to my son Shelah.” And he did not lie with her again.

(Gen 38:24 NRSV emphasis mine)

The punishment is not executed but the context shows it would have been carried out while she was about three months into her pregnancy. There are other examples of laws that seem to make no provision for when the woman is pregnant:

13 Suppose a man marries a woman, but after going in to her, he dislikes her 14 and makes up charges against her, slandering her by saying, “I married this woman; but when I lay with her, I did not find evidence of her virginity.” 15 The father of the young woman and her mother shall then submit the evidence of the young woman’s virginity to the elders of the city at the gate. 16 The father of the young woman shall say to the elders: “I gave my daughter in marriage to this man but he dislikes her; 17 now he has made up charges against her, saying, ‘I did not find evidence of your daughter’s virginity.’ But here is the evidence of my daughter’s virginity.” Then they shall spread out the cloth before the elders of the town. 18 The elders of that town shall take the man and punish him; 19 they shall fine him one hundred shekels of silver (which they shall give to the young woman’s father) because he has slandered a virgin of Israel. She shall remain his wife; he shall not be permitted to divorce her as long as he lives.

20 If, however, this charge is true, that evidence of the young woman’s virginity was not found, 21 then they shall bring the young woman out to the entrance of her father’s house and the men of her town shall stone her to death, because she committed a disgraceful act in Israel by prostituting herself in her father’s house. So you shall purge the evil from your midst.

(Deuteronomy 22:13-21 NRSV)

1 while Jesus went to the Mount of Olives. 2 Early in the morning he came again to the temple. All the people came to him and he sat down and began to teach them. 3 The scribes and the Pharisees brought a woman who had been caught in adultery; and making her stand before all of them, 4 they said to him, “Teacher, this woman was caught in the very act of committing adultery. 5 Now in the law Moses commanded us to stone such women. Now what do you say?” 6 They said this to test him, so that they might have some charge to bring against him. Jesus bent down and wrote with his finger on the ground. 7 When they kept on questioning him, he straightened up and said to them, “Let anyone among you who is without sin be the first to throw a stone at her.” 8 And once again he bent down and wrote on the ground. 9 When they heard it, they went away, one by one, beginning with the elders; and Jesus was left alone with the woman standing before him. 10 Jesus straightened up and said to her, “Woman, where are they? Has no one condemned you?” 11 She said, “No one, sir.” And Jesus said, “Neither do I condemn you. Go your way, and from now on do not sin again.”]]

(John 8:1-12 NRSV)

23 If there is a young woman, a virgin already engaged to be married, and a man meets her in the town and lies with her, 24 you shall bring both of them to the gate of that town and stone them to death, the young woman because she did not cry for help in the town and the man because he violated his neighbor’s wife. So you shall purge the evil from your midst.

(Deuteronomy 22:23-24)

What if God assumed that every time the Israelites carried out an execution it was before an egg would be fertilized? However, it turns out that this is impossible:

Conception may take place as soon as three minutes after sexual intercourse, or it may take up to five days. Implantation occurs five to 10 days after fertilization, which means anywhere from five to 15 days after you had sex.

https://www.verywellfamily.com/does-lying-on-your-back-after-sex-help-with-conception-1960291#:~:text=Conception%20may%20take%20place%20as,days%20after%20you%20had%20sex. (accessed 2020-06-07)

The short answer is that the egg and sperm can meet within minutes to up to 12 hours after ejaculation.

https://www.healthline.com/health/pregnancy/how-long-does-it-take-to-get-pregnant-after-sex#fertilization (accessed 2020-06-07)

Here is another law that is interesting:

18 The priest shall set the woman before the Lord, dishevel the woman’s hair, and place in her hands the grain offering of remembrance, which is the grain offering of jealousy. In his own hand the priest shall have the water of bitterness that brings the curse. 19 Then the priest shall make her take an oath, saying, “If no man has lain with you, if you have not turned aside to uncleanness while under your husband’s authority, be immune to this water of bitterness that brings the curse. 20 But if you have gone astray while under your husband’s authority, if you have defiled yourself and some man other than your husband has had intercourse with you,” 21 —let the priest make the woman take the oath of the curse and say to the woman—“the Lord make you an execration and an oath among your people, when the Lord makes your uterus drop, your womb discharge; 22 now may this water that brings the curse enter your bowels and make your womb discharge, your uterus drop!” And the woman shall say, “Amen. Amen.”

23 Then the priest shall put these curses in writing, and wash them off into the water of bitterness. 24 He shall make the woman drink the water of bitterness that brings the curse, and the water that brings the curse shall enter her and cause bitter pain. 25 The priest shall take the grain offering of jealousy out of the woman’s hand, and shall elevate the grain offering before the Lord and bring it to the altar; 26 and the priest shall take a handful of the grain offering, as its memorial portion, and turn it into smoke on the altar, and afterward shall make the woman drink the water. 27 When he has made her drink the water, then, if she has defiled herself and has been unfaithful to her husband, the water that brings the curse shall enter into her and cause bitter pain, and her womb shall discharge, her uterus drop, and the woman shall become an execration among her people. 28 But if the woman has not defiled herself and is clean, then she shall be immune and be able to conceive children.

(Numbers 5:18-28 NRSV)

This one has varied interpretations. Some commentators interpret this ritual to induce an abortion and others do not: http://www.apologeticspress.org/apPubPage.aspx?pub=1&issue=1291&article=2888 While it seems more likely to me that she is just made unable to have children, (which was indeed a curse in that culture) if she had a fertilized egg when she did the ritual then she would not be able to carry the pregnancy–hence the fetus would die regardless. If the wife could tell she was pregnant it would be unlikely for the husband (as suspicious as he was) to want to destroy his wife’s child since it could still be his even if she did commit adultery. I would also think this would be looked down upon given what we had discussed in A. but my point is she could still have a fertilized egg.

The issue that might make this inconclusive is that this is a punishment from God and God can abide by different rules, like when God killed David’s son as a result of his sin with Bathsheba right? True, but the timing of this ritual is dependant on man. God could have specified that they were to wait a month or so from the time of the alleged adultery to see if she was pregnant. Maybe God would take care not to kill an already fertilized egg but this would require waiting nine months and there’s nothing in the ritual to indicate to wait this long before you assumed she was innocent.

There is one decent argument I have thought of in response to the things I have put in B. It is that the Torah sometimes skimps on detail and the detail of not hurting a fetus may have been assumed just like I assumed that the husband wouldn’t want his fully pregnant wife to go through this ritual. Here are a few of examples of evidence for this idea:

  1. The punishment of “burning with fire” was actually “stoning then burning with fire” see 9. in https://kingdomofgodcommunes.org/2020/04/09/a-list-of-torah-misconceptions-in-short/
  2. Even the punishment of stoning has been interpreted with various details added: throwing someone off a cliff onto rocks and throwing rocks: https://hermeneutics.stackexchange.com/questions/1953/how-would-stoning-of-an-adulterer-actually-be-carried-out-under-the-law-of-moses It is argued in one paper that the Jews might have interpreted the Romans as “stoning” them at Masada with their Ballista:
    https://kingdomofgodcommunes.org/wp-content/uploads/2020/06/Casting-Stones_-Ballista-Stones-as-Weapons-and-Death-by-Stoning.pdf In addition to this idea slingers were common to the Biblical era. The first mention of slingers is in Jdg 20:16 and David had access to this technology even as a young shepherd. “Slingers were common to all ancient Mediterranean nations including Israel.” (Lost Treasures of the Bible: Understanding the Bible Through Archaeological Artifacts in World Museum’s pg. 171 accessed 2020-06-27)

    We can even imagine a scenario where an acceptable practice of stoning was slinging the stones at the criminal. This practice could have been forgotten during a period of exile. Indeed Exodus 19:13 groups archery and stoning together: “No hand shall touch them, but they shall be stoned or shot with arrows; whether animal or human being, they shall not live.’ When the trumpet sounds a long blast, they may go up on the mountain.”
  3. You can interpret the Torah in many ways without an instruction manual of how to interpret it. Even with the Talmud you can interpret it in different ways. This to me is not a problem and I think this shows that there is some flexibility in interpreting the Torah. However, it is just interesting how the Jewish tradition has insisted that the Torah needed an Oral Torah tradition to help in coming to more conformity:

The law given in Ex. xviii. 2 says that a Hebrew slave acquired by any person shall serve for six years; but it does not state why and how such a slave may be acquired. The law furthermore provides that if such a slave has served for six years, his wife, if he has one, shall go free with him; but it does not state that the wife of the slave accompanies him to his master’s house, nor does it define her relation to the master. The law in Deut. xxiv. 1 et seq. says that if a man dismisses his wife with a bill of divorce (“sefer keritut”), and she marries again but is dismissed with a bill of divorce by her second husband also, the first husband may not remarry her. The fact that a woman may be divorced by such a bill has not, however, been mentioned, nor is it stated how she is divorced by means of the “sefer keritut,” or what this document should contain, although it must have had a certain form and wording, though possibly not that of the later “geṭ.” These examples, to which many more might be added, are held to imply that in addition to and side by side with the written law there were other laws and statutes which served to define and supplement it, and that, assuming these to be known, the written law did not go into details. It appears from the other books of the Old Testament also that certain traditional laws were considered to have been given by God, although they are not mentioned in the Pentateuch. Jeremiah says to the people (Jer. xvii. 21-22): “Bear no burden on the Sabbath day, nor bring it in by the gates of Jerusalem; neither carry forth a burden out of your houses on the Sabbath day, neither do ye any work, but hallow ye the Sabbath day, as I commanded your fathers.” In the Pentateuch, on the other hand, there is only the interdiction against work in general (Ex. xx. 9-11); nor is it stated anywhere in the Torah that no burdens shall be carried on the Sabbath, while Jeremiah says that the bearing of burdens, as well as all other work, was forbidden to the fathers. It is clear, furthermore, from Amos viii. 5, that no business was done on the Sabbath, and in Neh. x. 30-32 this prohibition, like the interdiction against intermarrying with the heathen, is designated as a commandment of God, although only the latter is found in the Pentateuch (Deut. vii. 3), while there is no reference to the former. Since the interdictions against carrying burdens and doing business on the Sabbath were regarded as divine laws, although not mentioned in the Pentateuch, it is inferred that there was also a second code.

http://www.jewishencyclopedia.com/articles/11750-oral-law

B. Conclusion

Given the evidence in A. that life was thought to start at some point in the womb we may argue that the Torah does not speak of executing women who are pregnant beyond the point life was thought to start. It would also be unusual for a woman far along in her pregnancy to commit adultery and since executions seem to happen immediately after someone is found guilty we don’t have evidence against 2. “Personhood begins at some point in the womb.” However, while we could try other explanations, Judah’s command to kill Tamar is given three months later but this is only one case and cannot be used to make sweeping generalizations. This coupled with the fact that there is no command or example in the Bible to delay an execution based on pregnancy provides evidence against point 1. “Personhood begins at conception.”

C. Argument From Nature

So admittedly this is the naturalistic fallacy: that because something happens in nature it is good. However, if we want to argue that humans are specifically designed by God and not completely the product of random mutation and evolution we would expect the body to avoid killing a person inside it:

Around half of all fertilized eggs die and are lost (aborted) spontaneously, usually before the woman knows she is pregnant. Among women who know they are pregnant, about 10% to 25% will have a miscarriage. Most miscarriages occur during the first 7 weeks of pregnancy. The rate of miscarriage drops after the baby’s heartbeat is detected.

https://medlineplus.gov/ency/article/001488.htm#:~:text=Around%20half%20of%20all%20fertilized,first%207%20weeks%20of%20pregnancy.

Hence, maybe a fertilized egg is not a person after all. However, this is one of the weaker arguments in my opinion.

C. Conclusion

I don’t think this gets us anywhere but maybe it does for other people and I thought it was good to get the reader thinking on this subject.

D. The Infamous Verse About Two Men Fighting

We can use this verse to support almost all three positions depending on the translation. I will point out that since this is just talking about an accidental abortion and not an intentional one this verse is not conclusive either. In addition it is uncertain whether the damages refer to the woman or the child or both:

1. Personhood begins at (close to) conception:

22 “When men strive together and hit a pregnant woman, so that her children come out, but there is no harm, the one who hit her shall surely be fined, as the woman’s husband shall impose on him, and he shall pay as the judges determine. 23 But if there is harm, then you shall pay life for life, 24 eye for eye, tooth for tooth, hand for hand, foot for foot, 25 burn for burn, wound for wound, stripe for stripe.

(Exodus 21:22-24 ESV)

She wouldn’t know she was pregnant till some time after conception and wouldn’t experience a miscarriage unless the pregnancy progressed further than conception (as we observed, around 50% of fertilized eggs don’t survive and the woman doesn’t notice this)

2. Personhood begins at some point in the womb.

22And if [3should do combat 1two 2men], and should strike a woman [2in 3the womb 1having one], and should come forth her child not completely formed, with a fine he shall be penalized, in so far as [5should put upon him 1the 2husband 3of the 4woman], and he shall give by means of what is fit. 23And if [2completely formed 1it should be], he shall give life for life, 24eye for eye, tooth for tooth, hand for hand, foot for foot, 25burning for burning, wound for wound, stripe for stripe.

(Exodus 21:22-25 ABP)

3. Personhood does not exist in the womb.

22 When people who are fighting injure a pregnant woman so that there is a miscarriage, and yet no further harm follows, the one responsible shall be fined what the woman’s husband demands, paying as much as the judges determine. 23 If any harm follows, then you shall give life for life, 24 eye for eye, tooth for tooth, hand for hand, foot for foot, 25 burn for burn, wound for wound, stripe for stripe.

(Exodus 21:22-24 NRSV)

The difference between the NRSV and the ESV is just translational (and ill explain that later) but the difference between the LXX and the MT are possibly a little more interesting.

There’s basically five positions in regard to this difference.

1. The LXX is not trying to be consistent with the Hebrew at all.
2. The LXX is a paraphrase clarifying the scenario of miscarriage
3. The LXX is a paraphrase clarifying the scenario where the woman wasn’t harmed (miscarriage is assumed in all scenarios)
4. The LXX is a paraphrase that only covers the scenarios the Hebrew does
5. The LXX is an accurate literal translation of the Hebrew.

In favor of 1. is Daniel Schiff citing Richard Freund.

1. The LXX is not trying to be consistent with the Hebrew at all.

How did the Septuagint arrive at this widely variant rendering? In each of the three Genesis occurrences of the Hebrew term ason, the Septuuagint employs a form of the Greek noun malakia, generally translated as “affliction,” for ason. Had the Septuagint utilized malakia in Exodus 21:22-25, it would have conveyed a sufficiently similar sense to the original Hebrew that it would have been highly unlikely to have become the cornerstone of a wholly divergent approach to the status of the fetus. But, in Exodus 21:22-25, instead of malakia, the Septuagint twice uses the Greek participle exeikonismenon to translate ason. A scholar of Hellenistic Judaism, Richard Freund, has made the case that the translator of these verses, who either deliberately bypassed or was ignorant of the translation used elsewhere, arrived at this version through a process of homophonic substitution. This technique was not uncommon in both Greek and rabbinic texts. According to this explanation, the translator probably transliterated ason into some form of the Greek word soma, meaning “human life,” and then replaced this Greek transliteration with a synonymous term that offered a more profound theological resonance. This resonance can be readily apprehended through the literal translation of exeikonismenon: “made from the image,” which evokes an immediate connection to the wording of Genesis 1:27, “In the image of God, God created man.” Freund posits that the usage of the verb exeikonizein in the Septuagint and Philo establishes a strong connection to the “made from the image” metaphor. This remarkable textual allusion led Freund to conclude that “[i]t is clear from the LXX use of exeikonizein in Exodus 21:22-23 that the transator had some idea, principle, or presupposition in mind, which made him deliberately violate a literal translation in favor of a more complex formulation.

It is possible, moreover, to conjecture why this “more complex formulation” was preferred by the translator. Using exeikonismenon, the tranlator’s literal rendering of verse 23 would be “If it be made in the image, he shall give life for life.” This implies that one who kills a fetus that is already “made from the image” deserves death. But the translator must have been aware of the fact that one of the Torah’s six references to being “made from the image” explicitly calls for capital punishment of a murderer on the grounds that he had destroyed a being “made from the image”: “Whoever sheds the blood of man, by man shall his blood be shed; for in God’s image did God make man.” It is, therefore, reasonable to deduce that the Septuagint translator, through the employment of exeikonismenon, intended to create a link between feticide and homicide by way of the “made from the image” formulation. As a result, “formation” became critical because it was only when the fetus had attained a form that could be considered to be recognizably “in God’s image” that it would be considered sufficiently human that its destruction would become the equivalent of homicide.

The nature of the impact of Hellenistic thought on this section of the Septuagint has been much discussed. The scholar Victor Aptowitzer contends that the Septuagint’s portrayal of the status of the fetus effectively compromised between two schools of Greek philosophy, Plato (the Academy) and the Stoics. While the Stoics saw the fetus as being an integral part of the mother’s womb, the Academy regarded it as an independent living being. Hence the compromise entailed viewing the fetus either as dependent or as independent, contingent upon formation. Others have pointed to the similarities between the Septuagint’s focus on the pivotal role of formation and the Aristotelian thought which held that full human status was conferred at formation, since it was at that juncture that the soul was thought to infuse the body.

But perhaps the most significant Hellenistic idea of all was to be found in the notion that the willful abortion of a formed fetus was to be considered one of the most serious transgressions imaginable, deserving of the death penalty. From a range pagan and Hellenistic sources, Moshe Weinfeld, a prominent thinker in a the field, has demonstrated that the Assyrian attitude of dermined opposition to the woman who self-aborted was generally dominant in the Hellenistic world. Thus, bringing about the loss of a fetus was cited regularly alongside witchcraft, murder adultery, and theft as principle societal crimes. In contrast to the strong stance against feticide, however, the Hellenistic world often legitimated a relaxed attitude of “complete lawlessness” to infanticide, especially for children who were in any way defective.

Abortion in Judaism
By Daniel Schiff pages 13-15
accessed via https://books.google.com/books?id=xh9vy_dvO6YC&pg=PA12&lpg=PA12&dq=Exodus+21:22-25+septuagint+vs+dead+sea+scrolls&source=bl&ots=3yyXUAauED&sig=ACfU3U3UZvUn7zNSRepuS5MW6Zdk_Mnm5w&hl=en&sa=X&ved=2ahUKEwi8oPavuqPqAhV_mHIEHVk8DrkQ6AEwAXoECDIQAQ#v=onepage&q=Exodus%2021%3A22-25%20septuagint%20vs%20dead%20sea%20scrolls&f=false 2020-07-11

It’s would be a bit disturbing for people who hold both the Hebrew and Septuagint in high regard if this were true. However, this is not the only idea I can present about what is going on with the LXX’s translation. Also to my knowledge, Freund and Schiff present no direct evidence of Soma being the transliteration or of the LXX writers needing to compromise between Stoicism and Platonism. Even if the Hebrew is covering more scenarios than the LXX i.e. both live birth, miscarriage, and whether or not the woman was harmed, the transliteration would be unnecessary given that the LXX could by clarifying what the Hebrew meant by “no harm” in the case of miscarriage–that the child is not completely formed. (it wouldn’t be considering harm to the woman) This will be discussed in the next section.

2. The LXX is a paraphrase clarifying the scenario of miscarriage

If the Hebrew is ambiguous and refers to both “live birth” and “miscarriage” the Septuagint could be only trying to translate and clarify one of the scenarios covered–that of miscarriage. These two diverging interests in the course of their writings derive naturally from the different situations of the LXX translators and the writer of the Masoretic text. Chapter 21 of Exodus is near the beginning of the legal code given in the Hebrew Bible (having just started in chapter 19 at Sinai) The original author of the Hebrew text would not have a whole corpus of later law to draw on to explain the cases of live birth and cases of harm to the mother. However, the writer of the LXX already had the whole legal corpus of the Hebrew Torah to draw on. Therefore I speculate that the writer of the LXX didn’t feel the need to cover all the situations but instead chose to clarify one ambiguous one.

To outline an argument for the position that the Hebrew includes multiple scenarios (including live birth and harm to the mother) I will quote William H. C. Propp in his Bible commentary “Exodus 19-40 A New Translation With Introduction and Commentary” which states:

21:22. men fight. In a somewhat confusing and still comprehensible manner, 21:22-25 treats at least three ambiguities raised by the preceding laws (cf. Loewenstamm 1977; 246-57): What happens when a third party is injured in the course of a fight? If the third party is a pregnant woman who miscarries, is the abortion manslaughter? How does one redress non-deadly injuries? Rather than resort to textual dissection, as in most critical treatments, I regard this complexity as an original characteristic of the First Code. Unlike the cuneiform law collections, which delight in listing numerous eventualities, Israelite legal scholars proved their virtuosity by posing a small number of cases possessing broad implications.

Thus the basic question, that of the innocent bystander, is not answered directly. We are not told what happens should a male onlooker suffer such-and-such an injury. Rather, a pregnant woman is posited. From her case, we are presumably meant to extrapolate for all unintended harm (so Mek. nəzîqîn 8). Combatants who hurt a bystander are subject to punishment, depending upon the nature of the injury. 

The second issue this law treats is more philosophical: is a fetus a person? Is a pregnant woman comparable to, say, a woman carrying her infant in her arms? Is the death of the fetus manslaughter, so that he who jostled the mother is subject to blood vengeance? Is he entitled to asylum?

The answer to the third question, what is the punishment for nonlethal injuries, is simple: “eye for eye, tooth for tooth,” etc. I will discuss the Torah’s famous lex talionis below.

Although many ancient Near Eastern law codes treat injury to a pregnant woman and her fetus (or even gravid livestock; see Hittite Laws  §77, 84), this surely cannot have been a common occurrence. Paul (1970: 71 n. 1) infers that we have a case of literary interdependence among the codes and Finkelstein (1981: 19 n. 11) rather simplistically posits an origin in a single, real case of premature labor and miscarriage. But these suppositions do not answer the question: why among all crimes and accidents likely and unlikely should the codes have borrowed and shared legislation concerning miscarriage? The answer is that, like legal scholars everywhere, ancient legislators were attracted to the unusual and ambiguous (e.g., on Roman law, see Watson 1991: 12).

they stike. Either of the men, not both together (Luzzatto).

a pregnant woman. I assume that the woman is an innocent bystander, not a participant as in Deut 25:11-12. (I find unwarranted Daube’s [1947: 108] inference that she is wife to one of the parties, and that the blow is therefore deliberate.)

her child. My translation follows Sam, LXX, etc. wəlādād ‘her child’ (see TEXTUAL NOTE). MT, however, reads yəlāde(y)hā ‘her children.’ This must be taken as referring either to the potential for multiple pregnancies–“(all) her babies, (however many)”–or else to all the stuff of childbirth: water, blood, child(ren), afterbirth.

comes out. The minority view is that the verb yāṣā(‘) here connotes a successful abeit premature birth (Jackson 1975: 95, 99; Durham 1987: 323). The majority view is that yāṣā(‘) indicates a miscarriage (most recently Houtman 20000: 161. It is true that the ancient Near Eastern parallels (quoted below envision an aborted pregnancy, and it is true that the expression “come out” (yṣ’) is used apropos of abortion or the immediate death of a newborn in Num 12:12; Job 3:11 (Schwienhorst-Schönberger 1990: 94). But, as we shall observe, the cuneiform law codes have a different aim than the First Code. In fact, the Hebrew verb yāṣā(‘) more often refers to live births (e.g., Gen 25:25-26; 38:28-30).

The text seems deliberately ambiguous. Something comes out of the pregnant woman. There are four possible outcomes: healthy mother and child, dead-or-injured mother and healthy child, healthy mother and dead-or-injured child, and dead-or-injured mother and child. The following clauses attempt to address these eventualities.

injury. The disputed noun ‘a̅sôn otherwise appears only in Gen 42:4, 38; 44:29; Sir 31/34:22; 38:18; 41:9. Both the biblical context and the Arabic cognate ’asiya ’be distressed’ suggest the meaning “harm” (e.g., Baentsch 1903: 193). Some claim, however, that the meaning is more specifically “fatality” (e.g. Josephus Ant. 4.8.278). The Rabbis, for example, think that ’a̅sôn here refers to the woman’s death (Mek. nəzîqîn 8). (For more discussion of the history of interpretation, see Isser [1990] and TEXTUAL NOTE.)

Even though the argument that ‘a̅sôn implies a fatality draws support from the ancient Near Eastern codes, which cosider only the death of mother or child, I think this approach is incorrect. As observed above, the First Code is in one important way not comparable to the cuneiform documents. The Hittite Laws contain 200 clauses and the Code of Hammurapi 282. treating all manner of torts. In contrast, the technique in Exodus 21 is to compress multiple legal issues into a small number of complex, paradigmatic cases. In my holistic reading, 21:22-25 is about all injuries caused to third parties, and indeed about all injuries. If the biblical writer wished clearly to describe the death of the woman or her offspring, he would have used the verb mwt ’die.’ On the contrary, he makes it explicit what constitutes ’a̅sôn: death; damage to an eye, a tooth, an arm, a leg; a burn, a wound or a stripe (Schwienhorst-Schönberger 1990: 93). Not all of these can occur during childbirth to either mother or offspring, but, again, the case is intended to have broad application. 

It remains unclear whether “injury” applies only to the mother, or to mother and child. By the theory that v 22 describes a miscarriage, ‘a̅sôn can only connote the mother’s death or injury; the baby is already dead. But if, as I think, v22 describes premature labor, then the “injury” would be to either the mother or the infant. If the child is viable and the mother is unharmed, then the man who accidentally justled her owes the women’s husband a modest fine for endangerment and inconvenience (Durham 1987: 323).

3. The LXX is a paraphrase clarifying the scenario where the woman wasn’t harmed (miscarriage is assumed in all scenarios)

If I were to take this position I would have to argue that the Hebrew text really only speaks of miscarriage. More specifically we know that damages to a person are covered elsewhere in the Torah so the Septuagint is focusing on the situation of no harm being done to the mother. This position is made easier by the fact that the singular “child” is the lectio difficilior.

Propp says that the singular form of “child” is the lectio difficilior. This means “more difficult reading” and in textual criticism, this is called “lectio difficilior portior” or “the more difficult reading is stronger.” The theory is that it is more likely the original reading due to the scribes being more likely to change a text to an easier reading than to change it to a harder reading. “Child” in the singular is also the reading of the Samaritan Pentateuch. See Propp:

21:22. And if. Kenn 650 B lacks “And.”
men. See TEXTUAL NOTE to 21:18

her child comes out. Reading a singular verb and subject with Sam, LXX, Tg. Neofiti I and probably Vg: wyṣ’ wldh, vs. MT wyṣ’w yldyh ‘and her children come out.’ The alternation between wyṣ’ w- (Sam) and wyṣ’w y- (MT) may reflect the similarity of waw and yodh in Roman-period script (Cross 1961a; Qimron 1971). The plural subject of MT is hard to understand–unless it refers, not just to children, but to all that comes forth during parturition. More likely, however, yldyh has simply been copied from 21:4. The noun wālād used by Sam et al. is paralleled only in Gen 11:30 and 2 Sam 6:23 (Kethibh in many MSS), making it lectio difficilior. Syr appears to conflate the aforesaid variants: wnpqwn ‘wlh ‘and her fetus (sing.) come out (pl.).’

pg. 121, “Exodus 19-40 A New Translation With Introduction and Commentary”

However, how do we get the following to be what is translated by the LXX? (see also LXX below)

22 When people who are fighting injure a pregnant woman so that there is a miscarriage, and yet no further harm follows, the one responsible shall be fined what the woman’s husband demands, paying as much as the judges determine.

(Exodus 21:22 NRSV)

22And if [3should do combat 1two 2men], and should strike a woman [2in 3the womb 1having one], and should come forth her child not completely formed, with a fine he shall be penalized, in so far as [5should put upon him 1the 2husband 3of the 4woman], and he shall give by means of what is fit.

(Exodus 21:22 ABP)

The following lex talionis must in the Hebrew apply to both the woman and fetus and apply to the fetus on a sliding scale. Therefore, apply to stages of fetal development like in LXX:

23 If any harm follows, then you shall give life for life, 24 eye for eye, tooth for tooth, hand for hand, foot for foot, 25 burn for burn, wound for wound, stripe for stripe.

(Exodus 21:22-25 NRSV)

23And if [2completely formed 1it should be], he shall give life for life, 24eye for eye, tooth for tooth, hand for hand, foot for foot, 25burning for burning, wound for wound, stripe for stripe.

(Exodus 21:22-25 ABP)

Assuming that this law doesn’t cover a delayed miscarriage, there is also some medical evidence that a live birth in this situation would have been unheard of in the ancient setting.

First, it is important to note that injury to the fetus in utero may be direct or indirect. Direct injury is rare, mainly occurring late in pregnancy when the head is deep in the pelvis and major trauma causes fetal skull fracture. A recent review of the obstetric literature revealed only 19 such reported cases. The outcome was almost uni-versally fetal demise, except when cesarean section was performed. There is no report of that particular surgical procedure having been performed in the ancient Near East.

Indirect injury to the fetus occurs when there is disruption of the oxygen supply coming through the umbilical cord. Rarely trauma may result in uterine rupture with grave consequences for mother and infant without immediate surgical intervention. Such event occurs in less than one percent of trauma. More commonly, in six percent of blunt trauma during pregnancy there is an overt disruption of the normal connection between the placenta and the uterus. Fetal mortality in such cases, given the best obstetric and neonatal care available in the United States, is 34 percent. Another reference cites 30 to 68 percent fetal mortality. Without intravenous methods of fluid therapy for the mother and surgical intervention, it is obvious that the fetal outcome in the vast majority of these cases would be death. Timms states that “following uterine rupture or significant placental separation, rapid exploration [surgically] and fetal delivery provide the only chance for fetal survival.”

Less severe abdominal trauma may result in smaller disruptions of the placenta from the uterus, and less catastrophic outcomes. It is unknown how often an occult (self-limiting) placental separation takes place in these situations, but it may be the cause of common complaints such as “increased uterine activity” or slight cramping. Most of these cases progress to a normal outcome. In an excellent study of trauma in pregnancy Crosby suggests that if fetal oxygenation is impaired, labor or fetal death will occur within 48 hours.

Premature labor is a serious problem after trauma and is aggressively treated in appropriate cases these days with medication to stop uterine contractions. The lungs of the developing infant are not ready for life outside the womb until 33 to 34 weeks gestation (out of 40 weeks in a “full-term” pregnancy). In a nonhospital setting, the mortality rate of these infants is very high.

There are only a few instances, in a nontechnological era, in which blunt trauma serious enough to cause abortion of the fetus would result in a viable birth. If medical data has anything to say about Exodus 21:22, it indicates that the overwhelming probability for such a situation is an outcome of trauma-induced abortion with fetal demise.

https://faculty.gordon.edu/hu/bi/ted_hildebrandt/otesources/02-exodus/text/articles/congdon-ex21-abortion-bsac.htm

4. The LXX is a paraphrase that only covers the scenarios the Hebrew does

This position is similar to the last one but here “harm” (ason) must only be applied to the fetus and the woman must be unharmed even in the Hebrew. ‘a̅sôn would have to be interpreted as only referring to a “death” (as Propp mentioned that some take this position based on the context of the word and of other law codes covering just the death of the fetus). The following paper assumes a contradiction between no harm (ason) and a miscarriage but this can be resolved by saying the fetus may only be described as having “died” when it was “fully formed” as it the Septuagint explains. The idea that the LXX covers all the scenarios the Hebrew does is made difficult because there isn’t direct evidence that “harm” only applies to the mother.

B. Is the Harm to the Woman or the Fetus?
The RSV renders the word אָסֹ֑ון in v 23 as kill and attributes it solely to the mother. Other translations render it as “mischief”, “serious injury” or “harm”.1 That אָסֹ֑ון means some form of harm is well attested. אָסֹ֑ון occurs only three other times in the Hebrew Bible.

3 Then ten of Joseph’s brothers went down to buy grain from Egypt. 4 But Jacob did not send Benjamin, Joseph’s brother, with the others, because he was afraid that harm might come to him.

38 But Jacob said, “My son will not go down there with you; his brother is dead and he is the only one left. If harm comes to him on the journey you are taking, you will bring my gray head down to the grave in sorrow.”

27 “Your servant my father said to us, ‘You know that my wife bore me two sons. 28 One of them went away from me, and I said, “He has surely been torn to pieces.” And I have not seen him since. 29 If you take this one from me too and harm comes to him, you will bring my gray head down to the grave in misery.’”

In each case it refers to Jacob’s fear that Benjamin will be harmed as his brother Joseph was. In the narrative, the harm that befell Joseph (or at least that Jacob thought had befallen him) was being killed by a wild animal. Moreover, its use later in the narrative is associated with the fear that he will be executed in prison.

The question is whether in this context it refers to harm to the mother. Some translations render the passage as “no further harm”. However, nothing in the Hebrew grammar demands this. In the Hebrew it is unspecified who the harm applies to and several arguments have been proposed suggesting that the harm is harm to the fetus and not the woman.

Westbrook argues that the word אָסֹ֑ון means “a disaster for which no one can be held responsible”. He then suggests אָסֹ֑ון is predicated of the child. Verse 22 deals with a case where one can assign responsibility and v 23 a case where one cannot. This interpretation has the added advantage of explaining the change from the third person “he shall pay” in v 22 to the first person “you shall pay” in v 23. In the first case the person responsible pays. In the second case, where the perpetrator is unknown, the whole community does.

The problem with this argument is that Westbrook’s claim that אָסֹ֑ון means “a disaster for which no one can be held responsible” is not well attested by the evidence. Moreover, as noted by Sprinkle several uses of אָסֹ֑וןin both the Hebrew Bible and in later Hebrew Apocrypha suggest the contrary. For example, the fear that Benjamin would be killed in Genesis does not have this feature. His brothers agreed to take responsibility and his execution by Egyptian officials is not an event in which one is unsure of who is responsible. In addition, Jacob believed a wild animal caused Joseph’s death so it is doubtful that אָסֹ֑ון carries the nuance that Westbrook suggests.

A second line of argument claims that the nuances of the word אָסֹ֑ון fit more naturally with the death of a fetus than the death of the mother. Kline argues,

A calamitous loss involving serious injury or even death is denoted by ason. In the only other Biblical context where ason is found it describes the grievous calamity that Jacob fears will befall Benjamin on the Journey to Egypt. (Gen 42:4, 38; 44:29). The choice of this unusual word in Ex 21:22 (problematic if the reference were to injury or death of the woman, for which the more common terminology would be expected) is readily explained if ason refers to the less everyday circumstance of the calamitous loss of offspring by violently induced miscarriage.

Similarly, Jackson argues,

[W]hy should an unusual word like aswn be used in Exod. xxi 23 to refer to death, when the ordinary verb mwt would appear to have served equally well? Fatal injuries are a common enough topic in the Misphatim, but on every other occasion the normal verb is used. There must be some reason why it is not used in Exod. xxi 22, 23. Part of the reason is that the word aswn, as is evident from the Jacob- Benjamin narrative, stresses the effect on the happening on some person other than the direct victim. Perhaps the best translation is “calamity”…

Later on in the same work he adds,

Had it [aswn] referred to the woman, it would be impossible to understand why the normal word for death was not used. But where a foetus is concerned, any hesitation to use the normal terminology of death is quite reasonable…We have seen that elsewhere it emphasizes the effect of the death or serious injury upon someone other than the victim himself.

Neither of these arguments is compelling. Jackson appeals to Gen 42:4, 38 and 44:29 where Jacob stresses that harm to Benjamin will cause him to die of grief and infers from this that אָסֹ֑ון means a harm that affects someone other than the direct victim but this does not follow. The fact that I note that the death of someone close to me will devastate me does not mean that the effect on a third person is written in to the meaning of the term ‘death’.

Moreover, both Kline’s and Jackson’s arguments suffer from the fact that the word אָסֹ֑ון is so rare in the Hebrew Bible that the samples they appeal to are too few to be decisive. The fact that the few references that occur have a special nuance is insufficient to ground an inference that this nuance is part of the meaning.

There is a more serious problem in attributing the harm as applicable to the fetus. The translation only makes sense if the passage refers to a premature birth and not a miscarriage. If the passage refers to a miscarriage then a miscarriage has occurred but the fetus did not die. This renders the text self-contradictory. I argued earlier that this text does refer to a miscarriage and that the premature-birth interpretation was subject to serious criticisms. In light of this, the argument ceases to be tenable. Once it is established that the text refers to a miscarriage the question of whom the mischief refers to is easily solved. If the blow has killed the fetus, it cannot be the fetus that is not killed in v 23. Further, if already dead, the fetus cannot be said to have undergone further harm.

Feticide, the Masoretic Text and the Septuagint by Matthew Flannagan, accessed 2020-07-12 https://www.academia.edu/2243554/Feticide_the_Masoretic_Text_and_the_Septuagint

Another way to make this position is if the difference in punishment between verse 22 and 23 deals with a level of intent. “The Janus Face of Prenatal Diagnostics: A European Study Bridging Ethics, Psychoanalysis, and Medicine” says:

(When translating Exodus 21:22, the Septuagint, i.e., the early Greek translation of the Old Testament introduces a distinction between a “formed” and an “imperfectly formed” foetus, not present in the Hebrew original (Childress & Macquarrie, 1986). This difference has been interpreted as indicating a difference in the evaluation of the life of a foetus and a living human being (Ferngren, 1987). However, such an interpretation is not the only possible one. The different judgements can be explained by reference to the different kinds of act. The first act is a non-intended accident, while the second is a deliberate killing.

https://www.google.com/books/edition/_/NOlgDwAAQBAJ?hl=en&gbpv=1&pg=PA291&dq=why+does+the+septuagint+translate+exodus+21+differently?

This is a view in the Talmud:

The Gemara asks: Granted, according to the Rabbis, who say that if one intended to kill this individual and he killed that individual he is liable, there is support for their opinion from that which is written: “If men struggle and they hurt a pregnant woman so that her child departs from her, and there is no tragedy, he shall be punished, as the husband of the woman shall impose upon him, and he shall give as the judges determine” (Exodus 21:22). It can be inferred form the verse that if there is a tragedy, i.e., if the woman dies, there is no payment of restitution. And Rabbi Elazar says: It is with regard to a quarrel that involves the intent of each to cause the death of the other that the verse is speaking, as it is written: “But if there shall be a tragedy then you shall give a life for a life” (Exodus 21:23). This is proof that in a case where one intended to kill one individual and he killed a pregnant woman instead, he is liable to be executed, which is why he does not pay restitution.

https://www.sefaria.org/Sanhedrin.79a.10?lang=bi&with=all&lang2=en

I find it interesting that this view on the Hebrew and on the LXX can be unified (to some extent) with the idea of intent by speculating that it makes sense for the two men fighting to be held responsible for the fetus if the woman appeared pregnant. If she did not then it wouldn’t make sense to say that they were aware of this and hold them responsible for any negligence that they might be accused of in regards to the fetus itself.

5. The LXX is an accurate literal translation of the Hebrew.

This position is outlined below by Thomas F. McDaniel:

When Nina Collins (1993: 290) concluded with reference to
Exod 21:22 “Yet the verse as a whole fails to make sense” she
was referring to the Hebrew Masoretic text of this verse and its
many variant translation, not to the Hebrew Vorlage behind the
Greek translation in the Septuagint (250 B.C. to 132 B.C.), a
translation which makes perfect sense.

. . .

In addition to the well recognized אָסוֹן which was related to the (asaya) “he grieved, mourned,” there was, as noted above, also the word אסון which was related to the (sawaya) “he made it equal, he became full-grown in body” and “of regular build and growth.” This אסון is a perfect match for the Septuagint’s έξεικονισμένον, “to make like, to be perfectly fully formed.” Thus the אסון in the Vorlage of the Septuagint could have been read as אֶסְוֹן (eswon) or אֶסְוָן (eswan) from the stem סוה — with (a) a prosthetic א, (b) an affixed ן, and (c) the ו of the אסון being a consonant rather than a vowel letter. Contra the MT plural וְיָצְאוּ יְלָדֶיהָ “and her children come out,” the Septuagint has the singular καί έξέλθη τό παιδίον αύτῆϛ, “and her child came out,” which is in agreement with the Samaritan Pentateuch which has the singular ויצא ולדה. Once the singular ויצא ולדה “and her child came out” is in focus it becomes obvious that the subject of the masculine singular verb יהיה in the phrase ולא יהיה אסון (v. 22) and ואם אסון יהיה (v. 23) is the singular ולדה “her child,” permitting the following translation of these phrases: “. . . her child come out but HE is not fully formed, . . . but if HE is fully formed.” The masculine “child” is obviously gender inclusive like the אדם “man” in Gen 1:27 and 5:2.

Simply by substituting the antecedent noun child for the pronoun HE the Septuagint text in 21:22–23 stipulated: “And if two men strive and smite a woman with child, and her CHILD BE NOT FULLY FORMED, he shall be forced to pay a penalty as the woman’s husband may lay upon him, he TRANSLATION OF EXODUS 21:22–23 7 shall pay what seems fitting. But if the CHILD BE FULLY FORMED, he shall give life for life.” This law was so perfectly clear that Sprinkle (1993:247) well noted:

The penalty paid is assessed on the basis of the stage of the development of the dead fetus. The rationale for this view is that the later the stage of pregnancy, the more time has been lost to the woman, the greater the grief for the loss of a child, and the more difficult. This may have been the view of the LXX, which paraphrases וְלֹא יהְיֶה אָסוֹן as “imperfectly formed child” and translates בִּפְלִלִים “with valuation.” Furthermore, Speiser’s view gains credibility in that penalties for miscarriage actually do vary with the age of the dead fetus in the parallel ancient Hittite Law §17, which states, “If anyone causes a free woman to miscarry—if (it is) the 10th month, he shall give ten shekels of silver, if (it is) the 5th month, he shall give five shekels of silver and pledge his state as security.”

A fetus aborted in an accidental miscarriage which is not fully formed—nor equal to an infant born prematurely—was to be treated as property. 19 However, if the aborted fetus was fully formed—and equal to an infant born prematurely—it was to be treated as a person. A property which is accidentally destroyed called for a fine to be paid by the destroyer. But the lex talionis became applicable when a person—including a fully developed fetus—was accidentally injured or killed. Accordingly, in Mosaic law a woman’s fertilized egg or an imperfectly formed fetus was not considered to be a vp,n, a person. 20 Only a fetus that was אֶסְוָן / אֶסְוֹן (eswon / eswan) “fully formed” was recognized as a נפֶשׁ, a person.

http://tmcdaniel.palmerseminary.edu/LXX_EXO_%2021_22-23.pdf

D. Discussion

While I find Propp’s analysis interesting for point “2. The LXX is only trying to be partially consistent by clarifying part of the Hebrew” and McDaniel’s argument tempting for perfect harmony between the LXX and the Hebrew I have to disagree. Propp does not delve into the language used in the parallel legal codes he cites which also use generic terms for “go out” in reference to a miscarriage. I also tend to bias ancient consensus interpretations of a text against the later non-consensus of scholars which would make me more inclined to follow “3. The LXX is a paraphrase clarifying the scenario where the woman wasn’t harmed (miscarriage is assumed in all scenarios).” Russell Fuller deals with the premature birth interpretation in his article “EXODUS 21:22-23: THE MISCARRIAGE INTERPRETATION AND THE PERSONHOOD OF THE FETUS”

For the past thirty years most evangelicals have argued that Exod 21:22
does not refer to a miscarriage but to a premature birth. These evangelicals have offered the following points as evidence: (1) Biblical Hebrew has a technical word for “miscarriage” (sakol). If the author had intended to write about a miscarriage, he would have most likely used this word. Since, however, the author chose yasa, a word usually found with normal births, he probably envisioned a premature birth induced by the assault. Jack Cottrell affirms: “There is absolutely no linguistic justification for translating v. 22 to refer to a miscarriage.” (2) Biblical Hebrew has a technical word for “miscarried fetus” (nepel). Since the author chose yeled, he probably had live children—or at least the possibility of live children—in view.

Again, this suggests a premature birth. (3) Hebrew Däsön (“harm, damage”) is indefinite, and therefore should apply equally to both mother and fetus. Again, had the author intended to limit this word he could have inserted läh to clarify that the harm referred only to the mother and not to the fetus. (4) Although recognizing analogues between ancient Near Eastern literature and the Bible, adherents of the premature-birth view suggest that in Exod 21:22 the ancient Near Eastern legal tradition adds little or nothing to the understanding of the passage.

The first three points are actually one argument: the technical language argument. If Exod 21:22 refers to a miscarriage, why does the author employ such general language? Why not use more precise, technical terms? An author of course chooses a given word over another for his own reasons, leaving the interpreter only to speculate about the author’s decision. In Exod 21:22 the author chose yasa, a general term, meaning “to go/come out.” It specified normal births (Job 1:21; Jer 1:5) and a miscarriage (or perhaps a stillbirth, Num 12:12). There are, however, no passages in the HB where yäsäD clearly refers to a premature birth. Interestingly, the laws of Hammurapi and the Middle Assyrian laws described the miscarriage in general terms (nadû, “to cast down”; saläDu, “to cast, to drop”).


Hebrew säköl (like its cognates in Arabic, Ugaritic, Aramaic and Syriac), on the other hand, means “to bereave the loss of a child.” Although säköl is used in the context of miscarriages (or stillbirths, or perhaps even infant deaths) the word does not mean “to miscarry” or “miscarriage.” In Exod 21:22 the assailant is guilty of inducing the children (fetuses) to come out of the womb (a miscarriage, I believe), not of causing a mother “to bereave the loss of her child.” Why Moses chose yeled instead of nepel is more difficult to determine. Perhaps he desired a more euphemistic term, and he may have chosen yeled, at least indirectly, to indicate the personhood of the fetus. Similarly the laws of Hammurapi and the Middle Assyrian laws employed a euphemistic circumlocution, sa libbisa, “that of her womb,” instead of the technical words for fetus (izbu, kübu) or nid hbbi, a miscarried fetus. Why Moses did not further define Däsön by adding läh or lähem (läm) is uncertain. Perhaps he simply did not deem it necessary.

Although the “technical language argument” may, at first glance, seem to support the premature-birth view, upon further reflection the general language of Exod 21:22 actually favors the miscarriage interpretation. In fact the language is so general that there must have been a broader, cultural context to prevent doubt as to the law’s intent. The ancient Near Eastern analogues all supply that broader context. Indeed, in all Biblical and ancient Near Eastern legal literature and in almost all the general literature there are no references to premature births. It simply was not directly addressed. Therefore if Moses were introducing a new, unique law, previously unknown (at least from the sources we now possess) to the general society and culture, concerning a premature birth, he would have avoided ambiguity and misunderstanding by using precise language, especially if similar laws from the broader society, such as laws concerning miscarriage, might confuse the issue. Moses, on the contrary, by using general language in Exod 21:22, most likely intended his readers to understand this law according to the broader context of society. therefore he considered it unnecessary to insert läh after Däsön (or to write nepel instead of yeled) since that society and culture understood to whom the ason applied. Moreover the ancient Near Eastern law codes also employed general, nontechnical language. Thus the general language of Exod 21:22 actually supports the miscarriage interpretation rather than the premature-birth interpretation.

The interpretational history of Exod 21:22 also favors the miscarriage view. The miscarriage interpretation, despite its general language that could have misled later interpreters, held unanimous consent from the LXX to Martin Luther—some 1800 years. John Calvin was the first to suggest the premature birth view. He was later followed by the nineteenth-century German scholars such as Keil, Geiger and Dillmann. Yet none of these scholars had the complete picture. The ancient Near Eastern evidence was still underground. We cannot of course say whether this evidence would have changed their position. Nevertheless, they probably would have reexamined their opinions. Since the 1970s, the decade of the Roe v. Wade decision, the premature birth view has captured most of evangelicalism. But notwithstanding the recent ascendancy of the premature birth interpretation, at least among evangelicals, the miscarriage interpretation has the most impressive interpretational history and the securest exegetical foundation.

https://pdfs.semanticscholar.org/50b2/064cf1d09be12389ecebc8c235b1bd3ec628.pdf

To me the LXX is merely trying to clarify part of the situations described: unharmed mother and miscarriage. Additional evidence for the LXX being consistent with the Hebrew might come from Josephus who knew both Hebrew and Greek and seems to have no problem following the Hebrew:

33. (277) If men strive together, and there be no instrument of iron, let him that is smitten be avenged immediately, by inflicting the same punishment on him that smote him: but if when he is carried home he lie sick many days, and then die, let him that smote him escape punishment; but if he that is smitten escape death, and yet be at great expense for his cure, the smiter shall pay for all that has been expended during the time of his sickness, and for all that he has paid the physician. (278) He that kicks a woman with child, so that the woman miscarry, let him pay a fine in money, as the judges shall determine, as having diminished the multitude by the destruction of what was in her womb; and let money also be given the woman’s husband by him that kicked her; but if she die of the stroke, let him also be put to death, the law judging it equitable that life should go for life.

(Josephus, F., & Whiston, W. (1987). The works of Josephus: complete and unabridged (p. 122). Peabody: Hendrickson.)

Assertions range from the statement of Tachauer that Josephus employed only a Hebrew text to that of Schalit that Josephus used only the Greek Bible. The overwhelming majority of scholars, however, have taken an intermediate position, suggesting that Josephus used both, in addition to, perhaps, an Aramaic targum.

(Chapter 13 Use, Authority and Exegesis of Mikra in the Writings of Josephus by Louis H. Feldma) http://media.sabda.org/alkitab-2/PDF%20Books/Working%20PDF/Mikra/Mikra%2005.pdf

However, this is also not certain since it also argued that the LXX wasn’t available to him at the time he wrote this summary of the law and he–like any other author–can be unreliable:

The general result of the study can be outlined briefly at the outset: as he stated himself( AJ 1:5 f., CAp 1:54) he did translate from much-used library books in Hebrew containing many learned corrections and glosses; this source will be termed H. The first library in which the scrolls were written, stored, corrected and used until the 70 war is most probably the Temple archive; the text-type is quite close to the Hebrew source of the Septuagint (hereafter) but, strangely enough, this supposedly well known Greek translation of the Pentateuch was not available to him, at least not before the last stages of his work, though he knew and quoted the Letter of Aristeas, which expounds at length the story of this translation and gives it all due authority.

https://www.academia.edu/5229484/Josephus_and_the_Pentateuch

In many cases Josephus’ paraphrase is at odds with all the biblical witnesses we know, though he stresses his faithfulness to his sources (AJ 1:17): he adds speeches or omits whole chapters; he reshapes his material, not only by formal changes, but also by adducing many exegetical traditions, no less than laws and customs, which cannot have been extracted directly from the biblical letter. Moreover, the archetype of all the extant mss of the Antiquities is most probably two or three centuries later than the original scrolls, written by Josephus and/or his assistents. It has many alterations, either mistakes or learned corrections; the latter are more misleading, since they give way to granting Josephus pieces of information he never uttered. Of course, it is impossible to deal properly with Josephus’ Bible before an identification of all these alterations.

https://www.academia.edu/5229484/Josephus_and_the_Pentateuch

There is one more thing we must address:

If a man intentionally struck a pregnant woman for the purpose of killing the fetus, the punishment would be most severe—probably death. Therefore to claim that the fetus is not a person and that the Bible permits abortion simply on the grounds of an unintentional but negligent assault on the mother and fetus in Exod 21:22 is reckless if not disingenuous.

https://pdfs.semanticscholar.org/50b2/064cf1d09be12389ecebc8c235b1bd3ec628.pdf

In the footnote they point out :

Scholars have considered Josephus’ comments on Exod 21 22 and on abortion an ìnterpretational crux. On the one hand, Josephus held to the traditional Jewish interpretation in Ant4.278. “He that kicks a pregnant woman, so that the woman miscarry, let him be fined by the judges as for having destroyed in the womb (and) having diminished the multitude, and let money be given to the husband of the woman for it (ι.e. the fetus).” On the other hand, in Ap.2.202 he holds that intentional abortion is murder. “The law commands (us) to rear all (of our offspring), and forbids to abort the fetus, neither to destroy (it after birth), but she will appear to be a child killer (teknoktonos) if she destroyed a soul and diminished the race.” V Aptowitzer claims that these two statements are a “gross contradiction” and that “in the first case a law is reproduced, hence the language of the lawgiver, in the second case a moral valuation is involved, hence the language of the moralist.” “Observations on the Criminal Law of the Jews,” JQR.15 (1924) 87 η 117 This explanation, however, will not do Josephus clearly appeals to the law and indicts the one who commits an intentional abortion as a “child killer.” (Josephus used the cognate word teknoktonia to describe Herod when he murdered his sons Ant 16.392, J W 1 543 ) Perhaps he considered the Exodus case as an unintentional assault, although his loose paraphrase of Exod 21.22 does not directly indicate this since he considers intentional abortion as murder. If so, Josephus’ views are not contradictory. Indeed they parallel some of the ancient Near Eastern laws Josephus’ statement in Ap.2.202 curiously resembles Did 2.2 and Barn 19.5 “You shall not kill a child by abortion, neither will you kill (the child) after it is born ” Could these statements reflect a common axiom of both Jew and Christian concerning abortion in the late first and early second centuries?

https://pdfs.semanticscholar.org/50b2/064cf1d09be12389ecebc8c235b1bd3ec628.pdf

However, as Propp points out on page 225:

For Exod 21:23, a question immediately arises. Is this not an accidental injury? It is, but evidently not one exempted by 21:13. In other words, we are to interpret 21:13 in the manner of Num 35:22-23; Deut 19:5: “acts of God” are true accidents like workplace injuries, not the unintended consequences of animosity. The same might be inferred from Exod 21:18: two men fight and one kills the other without previous intent. If the stricken party recovers, his assailant is cleared. The tacit assumption is that, if he does not recover, his adversary is a murderer, even in the absence of premeditation. In other words, what we reckon as manslaughter, the Bible considers murder. If people wish to brawl, they may, but they risk incurring capital charges if either participant or bystander dies.

Exodus 21:23 mandates execution should the pregnant woman die. But execution of whom, the male combatant or his wife? Strict talion in a patriarchal society would require the latter (Houtman 20000: 165). Hammurapi §§116, 210, 230 and Middle Assyrian Laws §55 offer examples of a man’s wife or children being mharmed for his offenses against another’s wife or children. Still, we cannot be certain.

On Propp’s last statements, it seems the Bible did not practice this type of retributive talion, it rather only punished the person responsible. It is uncertain if Josephus’ statements are indeed contradictory but maybe we could posit four levels of intentionality to reconcile them: 1. fully intentional, 2. negligent (partially intentional), 3 unintentional but directly following from your actions (go a city of refuge), 4. completely unintentional. (no need to go to a city of refuge) Maybe this verse then falls into covering “2. negligent (partially intentional)” they were fighting with the intent to hurt and ended up hurting someone nearby. Propp seems to not include item 2. or 4. as a possible category. The idea that these verses are addressing negligence (2.) is backed up by the context afterward. Contrary to Propp there is no evidence that Exod 21:18 would necessarily result in capital punishment if one man died. It could also be a case of negligence since the verse about a slave being monetarily compensated for his damages appears right after and negligence seemed to punished with equal retribution or equivalent monetary compensation that was laid on the perpetrator by a representative of the victim. An example of this idea occurs in the following context with an ox that is and is not known to gore where there seems to be 2. and 4. levels of intentionality covered i.e. 4. you are either killed or have to pay monetary compensation because of negligence when your ox is known to gore (no going to city of refuge), 2. there is no need to go to a city of refuge when your ox gores someone because the ox’s action is not your action:

22 When people who are fighting injure a pregnant woman so that there is a miscarriage, and yet no further harm follows, the one responsible shall be fined what the woman’s husband demands, paying as much as the judges determine. 23 If any harm follows, then you shall give life for life, 24 eye for eye, tooth for tooth, hand for hand, foot for foot, 25 burn for burn, wound for wound, stripe for stripe.

26 When a slaveowner strikes the eye of a male or female slave, destroying it, the owner shall let the slave go, a free person, to compensate for the eye. 27 If the owner knocks out a tooth of a male or female slave, the slave shall be let go, a free person, to compensate for the tooth. 28 When an ox gores a man or a woman to death, the ox shall be stoned, and its flesh shall not be eaten; but the owner of the ox shall not be liable. 29 If the ox has been accustomed to gore in the past, and its owner has been warned but has not restrained it, and it kills a man or a woman, the ox shall be stoned, and its owner also shall be put to death. 30 If a ransom is imposed on the owner, then the owner shall pay whatever is imposed for the redemption of the victim’s life. 31 If it gores a boy or a girl, the owner shall be dealt with according to this same rule. 32 If the ox gores a male or female slave, the owner shall pay to the slaveowner thirty shekels of silver, and the ox shall be stoned.

(Ex 21:22-32 NRSV)

As can be seen from this and the context, negligence is repaid either with literal lex talionis retribution or with monetary compensation depending on what is laid on the perpetrator. However, another idea must be considered the term “life for life” or other such phrases in a lex talionis cannot be taken literally at all:

1. Is the Death of the Woman a Capital Offence?

One influential interpretation argues that this phrase merely expresses a legal formula which is expounded in proverbial form. The principle is that whatever punishment is imposed (and in this immediate case the punishment is a fine) must be proportionate to the harm inflicted on the victim. Sarna notes “[r]abbinic tradition understood the biblical formulation to mean monetary payment and not physical retaliation” and he defends this interpretation. Drazin notes that the Halacah in b. B.K 84a and Sanhedrin 79a and Mekach understand the phrase to refer to a principle of commensurate compensation. Plaut states that “few passages in the Torah have been so thoroughly misunderstood” and suggests the text is best understood as requiring “the value of an eye for the loss of an eye”, “the value of a limb for its loss and so on”. Rachels, Harrison, et al. do not engage with this tradition of exegesis. They appear merely to assume a literalistic reading without argument.

There are, I think, good reasons for accepting the traditional, rabbinic exegesis on this point. Here I will provide six. While none of them may be decisive in themselves, jointly, I believe, they provide a strong case for reading v 23 in the traditional fashion.

The first reason is how phraseology such as that found in v 23 functions in such a genre as Exodus is written in. As noted above, this section of the book of Exodus in terms of its structure, literary form and language parallels the structure and language of Ancient Near Eastern (A.N.E.) legal texts. Interestingly enough, the legal formulas such as ‘an eye for an eye or a tooth for a tooth’ are not uncommon in such codes. In Old Babylonian law the hand that assaults is severed, a man who kisses another’s wife has his lips cut off, a person who steals bees is to be stung by bees. A person who had thrown his victim into an oven was to be thrown into an oven. A man who raped another’s wife would be sentenced to having his own wife or daughter raped. A negligent builder whose house collapsed and killed another’s son would be sentenced to having his own son killed. In act, the Code of Hammurabi states that if a man knocks out the eye of one of the upper classes, his eye must be knocked out.

Westbrook notes that such laws “reflect the scribal compilers’ concern for perfect symmetry and delicious irony rather than the pragmatic experience of the law courts”. The method used in legal texts was “to set out principles by the use of often extreme examples”. He goes on to note “[s]ome law codes impose physical punishments and others payments for the same offenses, while some codes have a mixture of the two. There is not necessarily a contradiction.” He explains that “in highlighting one or the other alternative, the codes are making a statement as to their view of the gravity of the offence”. Westbrook argues that serious wrongs “gave rise to a dual right in the victim or his family, namely to take revenge on the culprit, or to make composition with the culprit and accept payment in lieu of revenge”. He goes on to note, “[t]his right was a legal right, determined and regulated by the court”. The courts could “fix the level of composition payment” making “revenge a contingent right, which was only revived if the culprit failed to pay”. When talionic legal formulae occur in A.N.E. legal texts they merely express that the punishment be proportional to the crime. This could involve punishment in kind (which would be proportional to the crime) but in most cases it would probably involve monetary compensation. The phraseology is compatible with either.

J Finkelstein makes a similar point reflecting on what appears to be very harsh capital (and sometimes vicarious) sentences in the code of Hammurabi and the absurdity and impossibility of putting them into practice. He states that Mesopotamian penalty prescriptions,

[W]ere not meant to be complied with literally even when they were first drawn up, [But rather they] serve an admonitory function. If one would be bold enough to restate Hammurabi’s 230 as a direct admonition it might run to this effect: “woe to the contractor who undertakes construction and in his greed cuts corners”.

There is evidence then to suggest that when talionic formulae occur in A.N.E. legal texts they do not necessarily function as commandments to inflict literal mutilation in kind. They rather function as a kind of hyperbolic, ironical way of denouncing the crime and expressing a principle of proportionality.

The second reason for understanding the lex talionis in this fashion follows on from the first. A careful reading of the Hebrew Bible suggests that something like what Westbrook and Finkelstein argue is true of the Torah. Verses 29-32 deal with a case where an ox gores another person to death due to negligence on the part of the owner. This is a case of negligent homicide as opposed to premeditated killing; the penalty rendered is that the negligent person shall be put to death. However, immediately proceeding this, provision is made for a monetary fine to be paid instead of execution. This suggests that the command to execute was not considered incompatible with payment of monetary compensation proportional to the offence. The phrase “he shall be put to death” is not always to be taken literally.

https://www.academia.edu/2243554/Feticide_the_Masoretic_Text_and_the_Septuagint

This brings into question the very distinction of the lex talionis from the fine in verse 22, is one necessarily more serious than the other?

I would argue that the ox is a different situation because of the level of intent. In addition, I would argue that “life for life” is often used literally, although lesser punishments like “eye for eye” are not based on the servant who goes free based on any significant damage. Yet the servant who is killed is not covered by monetary compensation see misconception 8: https://kingdomofgodcommunes.org/2020/04/09/a-list-of-torah-misconceptions-in-short/ Also the death of someone “life for life” is demanded based on man being made in the image of God:

Whoever sheds the blood of a human,
by a human shall that person’s blood be shed;
for in his own image
God made humankind. (Gen 9:6 NRSV)

life for life. This NOTE and the following treat the Old Testament’s notorious lex talionis or “law of ritribution” (Exod 21:23-25; Lev 24:17-22; cf. Deut 19:19). In this context, “life for life” almost certainly prescribes a capital punishment (Luzzatto). (Hypothetically, nepes tahat nepes could also indicate giving the aggrieved part a child or a wife to replace the deceased–cf. Gen 4:25–but such recompense would be impossible with eyes, teeth etc., and so probably is not intended here, especially since no recipient is specified.)

The principle “life for life” appears also in nonjudicial contexts. Jehu admonishes his guard, 2Kgs 10:24, “The man who escapes from among the men I am about to bring upon your hands–his life for his life (napso tahat napso),” apparently meaning that anyone who lets a Baal-worshipper escape will forfeit his own life. And in 1 Kgs 20:39, a prisoner is entrusted to a soldier with the words, “Your life for his life (napseka tahat napso); or you must weigh out a talent of silver.”

. . .

Exodus 21:23 mandates execution should the pregnant woman die . . .

What if the pregnant woman merely miscarries? If fetal death counts under “injury,” then someone must die. But who? It must be either the assailant (cf. Middle Assyrian Laws A §50) or perhaps his youngest child, in the true spirit of talion. (One might argue that Deu 24:16 “Fathers shall not be put to death on account of sons; and sons, they shall not be put to death on account of fathers,” attacks this very practice, but, more likely, the subject is vicarious punishment; e.g., if a murderer fled abroad, his son was executed in his stead.)

“Life for life” raises one other question: the term nepes technically refers to both human and animal life. Obviously, one cannot compound a murder or manslaughter just by killing a sheep. But if I kill your sheep, is my punishment to kill one of my own? Or do I owe you a sheep? Lev 24:17-18, 21 explicity addresses these issues:

And a man, should he strike (dead) any human’s life (nepes), must be put to death, death. And should one strike (dead) an animals’s life, he must repay it, life for life (nepes tahat nepes). . . . And whoever strikes (dead) a beast must repay it, but whoever strikes a human must be put to death.

page 225-226

D. Conclusion

I think you see by now that the interpretation of the text is uncertain enough that we may not be able to make any definite conclusions about it with regard to the ethical nature of abortion. You may also notice that none of these ideas help us get to where exactly conception begins. Philo does have some commentary on it:

(135) Thus the souls which are already pregnant are naturally likely to bring forth children, rather than those which are now receiving the seed. But as the eyes of the body do oftentimes see obscurely, and often on the other hand see clearly, so in the same manner does the eye of the soul, at times, receive the particular impressions conveyed to it by things in a most confused and indistinct manner, and at other times it beholds them with the greatest purity and clearness; (136) therefore an indistinct and not clearly manifested conception resembles an embryo which has not yet received any distinct character or similitude within the womb: but that which is clear and distinctly visible, is like one which is completely formed, and which is already fashioned in an artistic manner as to both its inward and its outward parts, and which has already received its suitable character. (137) And with respect to these matters the following law has been enacted with great beauty and propriety: “If while two men are fighting one should strike a woman who is great with child, and her child should come from her before it is completely formed, he shall be muleted in a fine, according to what the husband of the woman shall impose on him, and he shall pay the fine deservedly. But if the child be fully formed, he shall pay life for life.”

For it was not the same thing, to destroy a perfect and an imperfect work of the mind, nor is what is only likened by a figure similar to what is really comprehended, nor is what is only hoped for similar to what really exists. (138) On this account, in one case, an uncertain penalty is affixed to an uncertain action; in another, a definite punishment is enacted by law against an act which is perfected, but which is perfected not with respect to virtue, but with reference to what is done in an irreproachable manner, according to some act. For it is not she who has just received the seed, but she who has been for some time pregnant, who brings forth this offspring, professing boasting rather than modesty. For it is impossible that she who has been pregnant some time should miscarry, since it is fitting that the plant should be conducted to perfection by him who sowed it; but it is not strange if some mishap should befall the woman who was pregnant, since she was afflicted with a disease beyond the art of the physician.[2] (Yonge, C. D. with Philo of Alexandria. (1995). The works of Philo: complete and unabridged (p. 316). Peabody, MA: Hendrickson.)

(108) But if any one has a contest with a woman who is pregnant, and strike her a blow on her belly, and she miscarry, if the child which was conceived within her is still unfashioned and unformed, he shall be punished by a fine, both for the assault which he committed and also because he has prevented nature, who was fashioning and preparing that most excellent of all creatures, a human being, from bringing him into existence. But if the child which was conceived had assumed a distinct shape in all its parts, having received all its proper connective and distinctive qualities, he shall die; (109) for such a creature as that is a man, whom he has slain while still in the workshop of nature, who had not thought it as yet a proper time to produce him to the light, but had kept him like a statue lying in a sculptor’s workshop, requiring nothing more than to be released and sent out into the world.[3] (Yonge, C. D. with Philo of Alexandria. (1995). The works of Philo: complete and unabridged (p. 605). Peabody, MA: Hendrickson.)

This should be interpreted in light of this information (note Flannigan follows a non-literal lex talionis interpretation unlike me in the case of death)

The LXX’s teaching about an assault upon a woman does not contradict the MT’s teaching on this question. While the LXX does not mention harm to the mother in this passage, causing harm to the mother falls readily under the other laws dealing with assault where an assailant is required to compensate his victim for damages suffered. Hence, its teaching on this question is essentially the same as the MT’s even if the presentation of it differs.

Nor does the teaching of the LXX regarding feticide contradict the teaching of the MT. The MT states that if a person kills a fetus he or she must pay a fine based upon an assessment. While the mode of assessment is not specified, evidence suggests that there existed a practice that based it upon the age of the fetus. The LXX does not contradict this. It states that if a person kills a fetus he or she must pay an assessment and it bases the assessment upon the age of the fetus.

The difference between the two is that the LXX specifies exactly how this assessment is to be carried out. It claims that when the conceptus is formed the payment must be a payment for homicide. The Hebrew is silent as to how the assessment is to be carried out so it does not deny that this is the correct way to carry out the assessment. Hence, the LXX is entirely compatible with the Hebrew here. As Scott notes, “This Greek interpretation of the passage reveals how the law had come to be applied over centuries of use, at least in the Alexandrian, Jewish community”.

The distinction made between a formed and unformed conceptus strengthens this conclusion. The distinction appears to be drawn from Greek natural philosophy. Kapparis notes, “Formation was a crucial concept in connection with the human identity of the unborn in Hippocratic medicine”. He adds,

In the understanding of many, [Hippocratic doctors] the acquisition of human identity was not something that happened at birth but well before that, when the foetus was sufficiently formed to be considered a human being.

Kapparis draws attention to numerous examples of the formed/unformed distinction in numerous, ancient, embryological writings. Galen for example noted that two contemporary studies, The Commentaries on the Demonstration and On the views of Hippocrates and Plato, defended the view “[t]hat what is in the womb is already a living being when it is formed in all its members”. Similarly, the Hippocratic study On the Nature of the Child, affirms that a conceptus “becomes a child” when it attains form. A similar view appears to be expressed by Socrates in Platonic dialogues.

The formed/unformed distinction appears in numerous other works. Soranus mentions the distinction and suggests that abortions should be performed only when the conceptus is unformed.

Interestingly, authors who mentioned the formed/unformed distinction tended to place its occurrence at roughly the same time, though they differed on the precise details. Diogenes Laertius informs us of the Pythagorean view.

This first creation [the conceptus] is formed in forty days, and then, in accordance with the law of harmony, the baby is perfected and born after seven, or nine, or maximum ten months.

Empedocles similarly argued that formation started on the 39th day and was completed on the 49th. Asclepiades noted the formed/unformed distinction and suggested that for males formation occurred between the 26th and 50th days and females were formed around 60 days. The tract, On the Nature of the Child, states a male fetus is formed

after 30 days and female fetuses were formed on the 42nd day. The author of On Seven Months Child, states a male conceptus is formed at 40 days while a female is formed after this.

Perhaps the most influential of Greek biologists was Aristotle. Aristotle developed the Hippocratic views with more sophistication. He argued that the soul was the life principle of the body. A conceptus began with a vegetative soul and then gradually acquired a sensitive soul. It became fully human when it achieved form, which occurred 40 days after conception for a boy or 90 for a girl. Aristotle’s views were based on empirical investigations. Other biologists from the period also based their views on empirical observation either from miscarriages and abortions that had occurred in humans or on analogy with the embryological development with animals.

There appeared then to be an established distinction in ancient Greek embryology between a formed and unformed fetus. The similarity between the Hippocratic/Aristotelian position and the LXX can hardly be a coincidence. It appears Alexandrian Jews utilised the biological information of their day, concluded that a formed conceptus was a human being and hence applied the law accordingly. In many ways this is unsurprising because even with Palestinian Rabbinical Judaism, Aristotelian embryology was often appealed to by Jewish scholars. Several examples bear this out.

The first comes from Nid. 3:2-7. Here the question arises about how the cleanliness laws recorded in Leviticus 12 apply to a woman who has miscarried. The law prescribes that a woman who has given birth to a child is unclean for forty days if the child born is a boy and eighty days if it is a girl. The question raised is when does miscarrying a fetus constitute giving birth to a child?


The answer given is that a miscarriage qualifies as the birth of a child if the conceptus has the form of a human being. It is stated that this happens on the forty-first day after conception. The justification provided for this ruling is precisely the kind of empirical studies that Greek biologists had appealed to.

A second example occurs in Ker. 1:3-5. The law requires that after a woman has undergone her post-birth period of uncleanness she is required to make a sacrifice. The question is asked, does this apply if she miscarries a fetus? The answer is the same as in the previous case, after forty-one days the conceptus has form. At this stage, a miscarriage is considered the birth of a child.

The third example comes from Bek. 8:1. Here the issue is the application of Exodus 13:12 where it states that a woman must redeem her first-born son with an offering. The question arises as to whether a child born to a woman who had miscarried previously is considered the first-born son. The answer is yes but only if the miscarried conceptus had not been formed which occurs at forty-one days after conception.

Four things then are evident. Firstly, in translating the LXX Alexandrian scholars aimed at “a gloss or commentary rather than a literal rendering of the Hebrew text”. They were “attempting to embody — in a widely accessible form — then-current applications of the Scriptures”. Secondly, it was common practice even in Rabbinical Judaism to utilise Greek natural philosophy in applying the Torah to various issues. Thirdly, the dominant, Greek, natural philosophy placed an important stress upon form in determining the human status of a conceptus. Fourthly, the LXX appears to utilise this distinction in applying the Torah to the question of feticide.

The best explanation appears to be that Alexandrian Jews utilised Greek embryology in an effort to apply the Torah to the question of feticide. The law told them that if a person killed a fetus they had to be punished based on an assessment of the maturity of the fetus. The science of the day taught them that a conceptus was human when it attained human form around 40 days post-conception. Hence, they concluded that if a person killed a formed conceptus this was homicide.

Consequently, the LXX is perhaps best seen as simply complementing the MT and offering an interpretation as to how to apply the law that it prescribes. The scribes behind the LXX did not so much attempt accurate translation of the text but rather faithful interpretation of it to explain its requirements to others. The Hebrew text taught that if a man killed a fetus one was to base the punishment upon an assessment based upon its level of development. This is precisely what the Alexandrian Jews did. Utilising the empirical information of the day they made such an assessment and concluded that early in the pregnancy it constituted homicide. In order to determine if their conclusion were mistaken or correct, the time of hominisation must be assessed. It is not determined by examining the text. The text simply demands that the assessment be made. The question is whether it was made correctly. Are there good grounds for holding that a formed conceptus is a human being? If there are then the LXX does propose a faithful application of the law.

https://www.academia.edu/2243554/Feticide_the_Masoretic_Text_and_the_Septuagint

Conclusion

I take position 3. “The LXX is a paraphrase clarifying the scenario where the woman wasn’t harmed (miscarriage is assumed in all scenarios)” so harm could apply to the woman. The LXX only addresses a scenario where the woman isn’t harmed. I take lex talionis as an additional punishment to the fine and I take it literally in the case of “life for Iife” and non-literally in the case of lesser mutilations. I take Exodus 21:22-25 as speaking to “negligence” where a literal “life for life” or monetary compensation can be applied to the offender based on what the husband of the woman demands.

While we can see some implications with regards to fetal personhood in the case of miscarriage in Ex 21:22-25 they do not appear certain to me especially given that the uncertain nature of the lex talionis and intent in this case. Josephus interestingly was against intentional abortion and yet interpreted the passage as a miscarriage along with all the other commentaries of his time. Hence, I prefer to weight the evidence in sections A and B more heavily.

The conclusion I can come to is that fetal personhood happens at some point during pregnancy. Josephus interestingly elevates an intentional abortion of any type to be punished with death but this is not consistent with the evidence in section B. The only way to make it consistent is to say that the timing of justice is paramount and invalidates fetal personhood in executing perpetrators of sexual immorality. However, I think that exceptions were made for pregnancies if the fetus was thought to be “fully formed” or similar based on my tentative understanding of the lex talionis in Ex 21:22-25. I think this is possible because many details on how to carry out punishments could be left out of the Torah and fetal personhood is elsewhere supported in the Bible. Fetal personhood is also supported by the extra-biblical sources which indicate that believers did value fetal personhood: https://glanier.wordpress.com/2014/01/26/abortion-in-the-scrolls-and-the-didache/

The value of the fetus before being “fully formed” would then be up for debate at different stages. A newly fertilized egg seems to not be considered valuable but later stages seem to be since a fine is imposed in Ex 21:22 even before it was called “fully formed” (even this is not certain if it were only about compensation for trauma but is itself made complicated by the fact that this may have been an unintentional act). What I have drawn from all this is that these topics are nowhere near as easy to decide as I had once thought. This does not suggest there isn’t value in the fetus before it attains a status of personhood so abortion (after the time of conception and before it is “fully formed”) is difficult to comment on with certainty.

A List of Torah Misconceptions in Short

Last updated: 2020-06-27


Here I’ve compiled a list of common misconceptions about the Torah. The number comes first with the misconception in quotes and my response follows below. These are ordered in a way so the later responses are based on the previous but other than that the order is arbitrary.

1. Misconception: “The Torah endorses slavery.”

Calling servants in the Torah “slaves” in the modern sense is an anachronism. Servants are free to run away. (Deuteronomy 23:15-16) This today would be called “a job” but with a long contract. The servant was free to break that contract but would face consequences from not being trusted to keep contracts with other people or employers. Indeed owners of actual slaves sometimes prevented slaves from reading parts of the Bible that were against what they were doing:
https://www.history.com/news/slave-bible-redacted-old-testament

2. Misconception: “You could force your daughter to marry someone.”

Although there are cases where women seem to be promised in a way that treats them like property, e.g. ‘Then Caleb said, “Whoever attacks Kiriath-sepher and takes it, I will give him my daughter Achsah as wife.”’ (Judges 1:12) this is not endorsed anywhere in the Torah. While women may have felt cultural pressure to comply with their father it follows from 1. that you couldn’t force someone to marry you or someone else because they could run away even if they were only a servant. How much more a daughter? In addition, you couldn’t capture someone in the first place and hence you couldn’t force anyone physically to do anything without a legal reason, see Exodus 21:16 and Deuteronomy 24:7. Later in Jewish law this principle still remains: there is no such thing as “jail” in Jewish law, only a temporary holding for judgment. This is incredibly libertarian for ancient law which was usually less individualist than today. I would argue that jail today is immoral according to the Torah, just give someone their punishment and let them go.

3. Misconception: “After a waiting period you could rape captives and force them to marry you.”

The passage in question follows:

10 When you go out to war against your enemies, and the Lord your God hands them over to you and you take them captive, 11 suppose you see among the captives a beautiful woman whom you desire and want to marry, 12 and so you bring her home to your house: she shall shave her head, pare her nails, 13 discard her captive’s garb, and shall remain in your house a full month, mourning for her father and mother; after that you may go in to her and be her husband, and she shall be your wife. 14 But if you are not satisfied with her, you shall let her go free and not sell her for money. You must not treat her as a slave, since you have dishonored her. (Deu 21:10-14)

It follows from the previous that Deuteronomy 21:11 does not mean you can force someone to marry you. Marriage was arranged with the father of the woman and this law states that you are still allowed to marry someone that has no father. The phrase in Deuteronomy 21:13 “go in to her” does not describe sexual relations as you might think from reading other parts of the Bible because the Hebrew words there are literally “go in” and “husband” and are not elsewhere used to imply sex. Therefore there is not even a possible implication that you can have sex with her simply because the time is over. The word translated “dishonor” is used in Deuteronomy 22:24 for consensual sex so there is no implication of rape.

4. Misconception: “Rape wasn’t taken very seriously in the society of the Bible.”

This idea is often used in order to make excuses for interpretations of the Bible that are rape-friendly but nothing could be further from reality. There’s no case in that Bible where rape was taken lightly. The rape of the concubine in Judges was avenged by a national civil war. (Judges 19-21) The rape of Tamar by Amnon was avenged by Amnon’s death and possibly was the cause of another national civil war because David didn’t punish Amnon. (2 Samuel 13) What’s commonly called the rape of Dinah in Gen 34:2 was avenged by genocide. (Gen 34:25-31) According to this article, it may have even been consensual, but the crime was just taking advantage of an inexperienced young woman: https://www.myjewishlearning.com/article/dinah/ Do we even take rape that seriously today? I think not.

Women were protected from having their conjugal duty diminished “If he takes another wife to himself, he shall not diminish the food, clothing, or marital rights of the first wife.” (Ex 21:10) and Rachel and Leah were able to trade a night with Jacob for mandrakes Gen 30:14-18. Also note that it’s the less attractive Leah that tells Jacob: “‘You must come in to me; for I have hired you with my son’s mandrakes.’ So he lay with her that night.” God killed Onan for not having sex in a way that would cause pregnancy when he was supposed to perform the duty of the Levarite in Genesis 38:8-10. Rather than sex being an obligation of women, it seems that it was an obligation of men especially for the purpose of giving women children. This probably breaks a lot of the preconceptions most people have about the Biblical culture.

5. Misconception: “A virgin was supposed to marry her rapist.”

Given that Israelite culture tended to avenge rape with genocide and civil war, slipping this idea into the law would be difficult. The passage in question follows:

28 “If a man finds a young woman who is a virgin, who is not betrothed, and he seizes her and lies with her, and they are found out, 29 then the man who lay with her shall give to the young woman’s father fifty shekels of silver, and she shall be his wife because he has humbled her; he shall not be permitted to divorce her all his days. 30 “A man shall not take his father’s wife, nor uncover his father’s bed. (Deuteronomy 22:28-30)

The word in Deuteronomy 22:28 (“taphas” Qal Perfect form in Hebrew) is never used for rape elsewhere and is totally different and unrelated to the word used in Deuteronomy 22:25 for rape “chazaq” which is also in the causative form the “hiphil.” If they wanted to say this was rape they could have easily used the same word with the same form again to describe it in the previous case. In verse 28 it says “and they are found out” implying both are responsible and consenting in contrast to the rape in Deuteronomy 22:25-27 which refers to the man and the woman separately. The location (town or city) is not specified, unlike the situations before making this a seemingly different situation than the rape that is described before. “Taphas” is used in the same form in Gen 4:21 for playing the lyre and pipe . . . Here “taphas” is translated “seize” but is used in the context of persuasion:

Someone will even seize a relative,
a member of the clan, saying,
“You have a cloak;
you shall be our leader,
and this heap of ruins
shall be under your rule.” (Isaiah 3:6)

He is holding onto him in order to persuade him. Any forcible seizure would be short-lived given the power of kings in that day and age. In addition, Num 5:13 uses the “niphal” stem (Aspect: Perfect) as a reflexive to mean a woman who “caught in the act” (NRSV) of adultery. In Deu 21:19 it is used in the Qal Perfect form to mean “take hold of him” to bring to the judges.

While “taphas” is used in contexts of war for the “capture” of people in battle or otherwise (hence probably why the NRSV above translates it as “seize”) it does not by itself imply force was used on those people (the threat of force is only implied by the situation). The question is: do we know how it is used in the context of a sexual encounter with a woman? No, it is only used in that context here in Deuteronomy 22:28. However, even if Taphas means “capture” or “non-consent” in this case there are other options besides interpreting it as rape which I will explain.

While Taphas is a different word than that used for rape immediately prior, it is also not used in Deuteronomy 22:22,23 to describe consensual sex. Instead of “hold” (taphas) H8610 and “lie with” (shachav) H7901 in Deuteronomy 22:28; the words used in verses 22 and 23 are “find” (matza) H4672 and “lie with” (shachav) H7901. So why the difference? If “taphas” implies a lack of consent or a “capture” then we may answer that both the father and the daughter had to consent to the marriage. The father’s authority can be established in many different places. The daughter’s authority to refuse can be established if you read the entirety of this blog post. If the father didn’t consent then that implies a “non-consent” or “capture” of the daughter which would fit with the word “taphas” being used to describe the non-consensual (but not necessarily violent) capture of people. In fact, the parallel of Deuteronomy 22:28 in Exodus 22:16 is in the context of damages to the household possessions via theft or negligence and Keil and Delitzsch say of Exodus 22:16:

The seduction of a girl, who belonged to her father as long as she was not betrothed (cf. Exodus 21:7), was also to be regarded as an attack upon the family possession. Whoever persuaded a girl to let him lie with her, was to obtain her for a wife by the payment of a dowry (מהר see Genesis 34:12); and if her father refused to give her to him, he was to weigh (pay) money equivalent to the dowry of maidens, i.e., to pay the father just as much for the disgrace brought upon him by the seduction of his daughter, as maidens would receive for a dowry upon their marriage. The seduction of a girl who was betrothed, was punished much more severely (see Deuteronomy 22:23-24).

https://biblehub.com/commentaries/kad/exodus/22.htm

This is backed up by the following verse Exodus 22:17 “But if her father refuses to give her to him, he shall pay an amount equal to the bride-price for virgins.” Therefore, if “taphas” H8610 in Deuteronomy 22:28 is used at all to describe a “capture” or “non-consent” then verses 29-30 give the context of what the “capture” or “non-consent” was from:

29 the man who lay with her shall give fifty shekels of silver to the young woman’s father, and she shall become his wife. Because he violated her he shall not be permitted to divorce her as long as he lives. 30 A man shall not marry his father’s wife, thereby violating his father’s rights. (Deuteronomy 28:29-30)

If it is a “capture” it is a “capture” from the father’s authority not from the woman’s own will since both the father and the woman must be willing to accept the man. The rights of the father are not randomly started in verse 30 but are a continuation of the right of the father to not have his daughter taken away (“captured”) without his consent and his right to the bride-price. In addition, this law is merged with the law about seduction in Exodus 22:16-17 in Philo, Josephus, and the Dead Sea Scrolls (11Q Temple Scroll). This law is merely specifying the bride-price that was mentioned in Exodus and as a common-law addition, it is clarifying that you couldn’t use the loop-hole of divorce for the marriage commanded in Exodus.

All that being said there are plenty of examples where “taphas” is used to mean “wield” or “play” which seems like a much more likely association for a sexual encounter. I’m just giving an argument that even if you take it in the stronger ways it is used it doesn’t necessarily imply rape. This article has more details on the Hebrew in question: https://cbmw.org/2018/03/05/did-old-testament-law-force-a-woman-to-marry-her-rapist/

6. Misconception: “Masters could treat their slaves like animals and break up marriages once they got children.”

The verses in question:

1 These are the ordinances that you shall set before them: When you buy a male Hebrew slave, he shall serve six years, but in the seventh he shall go out a free person, without debt. 3 If he comes in single, he shall go out single; if he comes in married, then his wife shall go out with him. 4 If his master gives him a wife and she bears him sons or daughters, the wife and her children shall be her master’s and he shall go out alone. 5 But if the slave declares, “I love my master, my wife, and my children; I will not go out a free person,” 6 then his master shall bring him before God. He shall be brought to the door or the doorpost; and his master shall pierce his ear with an awl; and he shall serve him for life. (Ex 21:1-6)

You also couldn’t break up a marriage even if you were the employer of a servant. The servant that is said to go out in Ex 21:4 is clearly just becoming an independent (non-servant) if you read the context. This says nothing about the status of his marriage. He would want to stay employed with you so he could see his wife and kids consistently. Also according to Jesus:

3 He answered them, “What did Moses command you?” 4 They said, “Moses allowed a man to write a certificate of dismissal and to divorce her.” 5 But Jesus said to them, “Because of your hardness of heart he wrote this commandment for you. 6 But from the beginning of creation, ‘God made them male and female.’ 7 ‘For this reason a man shall leave his father and mother and be joined to his wife, 8 and the two shall become one flesh.’ So they are no longer two, but one flesh. 9 Therefore what God has joined together, let no one separate.” (Mark 10:7-9 emphasis mine)

7. Misconception: “You could trick someone into being your servant forever by giving him a wife.”

You probably couldn’t trick someone into serving you forever by setting them up with a wife they wanted to be around consistently, see Exodus 21:1-6 and Deuteronomy 15:16-17.

then his master shall bring him before God. He shall be brought to the door or the doorpost; and his master shall pierce his ear with an awl; and he shall serve him for life. (Ex 21:6)

Although it says “serve him for life” this doesn’t tell us exactly how their relationship changes. A son is also said to serve the father. Consider the following:

A. You are bringing him before God which suggests you are marking him for God’s service, not your own. Sometimes servants wore the mark of the God or employer they served, see Thayer’s: https://www.blueletterbible.org/lang/Lexicon/Lexicon.cfm?strongs=G4742&t=KJV

B. You are taking him to the doorpost where the law of God was posted.

C. God gave the Israelites the right to stay on the land and own the houses and land they had. (Leviticus 25:22-34)

D. Sons are said to serve the father. The same word for servant is used in Malachi 3:17 and a son is not different than a servant until inheritance comes into play Galatians 4:1-3

E. Sons had to follow all the commands of the father and did not have their own source of income as implied by Luke 15:11-32.

F. A servant is said to become an heir if he is pampered in many translations of Proverbs 29:21, see ESV and YLT for examples. However, the Hebrew is uncertain and different translations render it differently.

G. The only other examples of blood being put on the earlobes in a ceremony is of a transfer from a lower status to a higher one: the cleansing of the leper and the consecration of the priests: Lev 14:1-4, Leviticus 8:1~

H. Karel van der Toorn is a secular theologian who has studied the Biblical ceremony of piercing the ear with an awl and has concluded that it is was an adoption ceremony. (see the book “God in Context”)

8. Misconception: “You could beat your servants for no reason and you weren’t punished unless they died within a day.”

The relevant verses follow:

20 When a slaveowner strikes a male or female slave with a rod and the slave dies immediately, the owner shall be punished. 21 But if the slave survives a day or two, there is no punishment; for the slave is the owner’s property. (Ex 21:20-21 NRSV)

Now it’s obvious you couldn’t beat someone to death as it says here where the same word is used for “strikes:” “Whoever strikes a person mortally shall be put to death.” (Exodus 21:12) Actually, if you did any significant (or maybe permanent) damage to your servant they would become an independent: Exodus 21:26-27 The reason you could punish servants (assuming you were the head of a household) is that you were part of the legal system. Just as today we might post the law of the land on the courthouse so in that time the laws of God were posted on the gates (where the elders sat) and on the doorposts of houses: Deuteronomy 6:9 and Deuteronomy 11:20. Regardless of whether you agree with the implications of where the law was posted, it is a fact that the legal system was much more distributed in the Torah than in most modern societies. Take for example the avenger of blood in Deuteronomy 19:11-12 which was just a person in the victim’s family.

The mention of the servant as “property” is literally “money” and there is a curious similarity to the previous verses which talk about compensating individuals for loss of work and cost of recovery in a fight:

18 When individuals quarrel and one strikes the other with a stone or fist so that the injured party, though not dead, is confined to bed, 19 but recovers and walks around outside with the help of a staff, then the assailant shall be free of liability, except to pay for the loss of time, and to arrange for full recovery. (Exodus 21:18-19)

The case in verse 21 for the servant living one or two days is not for when it looked like they had died of their injuries because beating someone near death would do significant (and by definition permanent) damage and hence make the servant an independent causing the death of the servant to be avenged as an independent person. (just for those who think Ex 21:12 didn’t apply with servants for some reason) Rather verse 21 is for a case where it is unknown what killed the servant.

However, is there a connection to the two independent men fighting and compensation? I think verse 21 simply specifies that since the servant was a source of income and value to the employer that any uncertainty in what caused the death should be decided in the employer’s favor since he is presumed to have suffered a loss from this. This seems to not be the case with independent men since nothing is said about whether the victim dies a day or two later.

Another view (that I’m not in favor of) is that the employer would not be liable for the loss of time of the servant unlike the two men fighting since the employer suffers a loss from having to support the servant while recovering. If this were the case it would suggest that the punishment for a servant could be rather harsh. I don’t agree with this for several reasons: 1. The passage does not specify what to do when the servant is confined to bed but recovers. It only specifies what to do if the servant is confined to bed and then dies. It would be nonsensical to assume anything about compensating the servant in a case where he dies. 2. The Bible also prevents harsh beatings even if they would only be “degrading:” “Forty lashes may be given but not more; if more lashes than these are given, your neighbor will be degraded in your sight.” (Deuteronomy 25:3 NRSV) Life-threatening beatings would seem to be excluded by preventing “degrading” beatings.

9. Misconception: “The Torah Condones Burning People Alive”

The relevant verses follow:

When the daughter of a priest profanes herself through prostitution, she profanes her father; she shall be burned to death. (Leviticus 21:9 NRSV)

This wasn’t actually “burned to death” but “burned after death.” Compare this more literal translation with the story of Achan in Joshua 7 where he is condemned to be burned with fire but is stoned then burned with fire:

`And a daughter of any priest when she polluteth herself by going a-whoring — her father she is polluting; with fire she is burnt. (Leviticus 21:9 YLT)

See the excerpt on Achan below:

15 And the one who is taken as having the devoted things shall be burned with fire, together with all that he has, for having transgressed the covenant of the Lord, and for having done an outrageous thing in Israel.’”
. . .
25 Joshua said, “Why did you bring trouble on us? The Lord is bringing trouble on you today.” And all Israel stoned him to death; they burned them with fire, cast stones on them, 26 and raised over him a great heap of stones that remains to this day. Then the Lord turned from his burning anger. Therefore that place to this day is called the Valley of Achor. (Leviticus 7:15-26 NRSV)

What Does The Bible Say About Rape?

All verses are in the NRSV unless otherwise noted. When I first started writing this I thought I had to admit that the Bible did not explicitly prohibit rape of an unmarried unbetrothed woman. However, I have now realized that the Bible does explicitly prohibit rape in Ex 21:16 and Deut 24:7 because it prohibits the capture/seizure of people which is part of rape. I argue that Deuteronomy 22:28-29 is connected with Exodus 22:16-17 and is about seduction and not rape but I don’t have time to make that argument here, instead see this article: https://cbmw.org/topics/sex/did-old-testament-law-force-a-woman-to-marry-her-rapist

I do think rape is explicitly against other laws–for instance it would at least be covered under the laws concerning damages to people and certainly against the law to love your neighbor. However, I will argue that just because it is not explicitly named that the Bible’s attitude should not be taken as lax towards it. In fact, I will argue that under the biblical law that rape requires the death penalty.

So why isn’t rape itself explicitly mentioned in the law? For a few reasons I suspect

1 The first one is pretty obvious: it was covered directly by other laws against capturing and indirectly by laws against slavery which came almost immediately in the giving of the law.

There was no reason to add specific cases to a good comprehensive general one. This comes by observing that the Tanakh is very much against capturing and slavery:

Whoever kidnaps h1589 a person, whether that person has been sold or is still held in possession, shall be put to death. (Exodus 21:16)

If someone is caught kidnaping h1589 another Israelite, enslaving or selling the Israelite, then that kidnaper shall die. So you shall purge the evil from your midst. (Deuteronomy 24:7)

You shall not steal. h1589 (Ex 20:15)

Notice it uses the same Hebrew word for “steal” in the 10 commandments. There are some translations that have “and” in-between each case here rather than “or” which causes some to argue that it only prohibited the combination of them: kidnapping, selling, and found in their possession. However, in YLT this seems to be the result of translating the vav literally and consistently as “and” and is not a mandate for how to understand the vav in that particular context. Keil and Delitzsch correct the misconception that vavs can only mean “and” and note the severity with which this capturing was treated:

Maltreatment of a father and mother through striking (Exodus 21:15), man-stealing (Exodus 21:16), and cursing parents (Exodus 21:17, cf. Leviticus 20:9), were all to be placed on a par with murder, and punished in the same way. By the “smiting” (הכּה) of parents we are not to understand smiting to death, for in that case ומת would be added as in Exodus 21:12, but any kind of maltreatment. . . . Man-stealing was also no less a crime, being a sin against the dignity of man, and a violation of the image of God. For אישׁ “a man,” we find in Deuteronomy 24:7, נפשׁ “a soul,” by which both man and woman are intended, and the still more definite limitation, “of his brethren of the children of Israel.” The crime remained the same whether he had sold him (the stolen man), or whether he was still found in his hand. (For ו – ו as a sign of an alternative in the linking together of short sentences, see Proverbs 29:9, and Ewald, 361.) This is the rendering adopted by most of the earlier translators, and we get no intelligent sense if we divide the clauses thus: “and sell him so that he is found in his hand.”

https://biblehub.com/commentaries/kad/exodus/21.htm

This attitude is consistent with the Bible’s libertarian treatment of individual freedom and the prohibition against forced servitude:

15 Slaves who have escaped to you from their owners shall not be given back to them. 16 They shall reside with you, in your midst, in any place they choose in any one of your towns, wherever they please; you shall not oppress them. (Deuteronomy 23:15-16 )

It even says the type of slavery that happened in Egypt was wrong since it says that you shall not crush (H3905) the sojourners like has been done to you in Egypt:

You shall not wrong or oppress H3905 a resident alien, for you were aliens in the land of Egypt. (Exodus 22:21)

This is because the same word H3905 is used to describe the oppression of the Egyptians upon the Israelite:

The cry of the Israelites has now come to me; I have also seen how the Egyptians oppress H3905 them. (Exodus 3:9)

You shall not oppress H3905 a resident alien; you know the heart of an alien, for you were aliens in the land of Egypt. (Exodus 23:9)

we cried to the Lord, the God of our ancestors; the Lord heard our voice and saw our affliction, our toil, and our oppression. H3906 (Deu 26:7)

It in fact says that you should treat sojourners as natives:

The alien who resides with you shall be to you as the citizen among you; you shall love the alien as yourself, for you were aliens in the land of Egypt: I am the Lord your God. (Leviticus 19:34)

It says that you should never rule over anyone like the Egyptians did to the Israelites (the context in Ezekiel is criticizing their behavior):

The Egyptians became ruthless H6531 in imposing tasks on the Israelites, (Exo 1:13)

You have not strengthened the weak, you have not healed the sick, you have not bound up the injured, you have not brought back the strayed, you have not sought the lost, but with force and harshness you have ruled H6531 them. (Ez 34:4)

So if they couldn’t behave like the Egyptians and they couldn’t capture or force people to stay with them then what motivation could servants have for staying? I think this was a way for people who had gotten into debt (by committing a crime or otherwise) to get back on their feet by making an extended contract with someone. The servant could break that contract but if they broke it for no good reason then other people would be less likely to want to have them as a servant. It also says to provide them with resources when they went out, this may have been partially motivation for staying. In addition this may imply that they came in with nothing, hence were working to get back on their feet:

And when you send a male slave out from you a free person, you shall not send him out empty-handed. 14 Provide liberally out of your flock, your threshing floor, and your wine press, thus giving to him some of the bounty with which the Lord your God has blessed you. (Deuteronomy 15:13)

There are intricacies to these contracts that often escape our notice; servants could be given authority to manage the household and manage the marriage of a son (Genesis 24:2) and also may have been heirs automatically when no children were present (Genesis 15:3). They could own property (2 Samuel 19:17), and they, or a relation, could buy their freedom regardless of the master’s will to keep them (Lev 25:47–50).

And it seems to have had a positive connotation:

Then she said, “May I continue to find favor in your sight, my lord, for you have comforted me and spoken kindly to your servant, even though I am not one of your servants.” (Ruth 2:13)

You could replace “servant” with “daughter” and it would still make sense. Interestingly a son is said to serve the father and it uses the same word that means “servant” elsewhere:

They shall be mine, says the Lord of hosts, my special possession on the day when I act, and I will spare them as parents spare their children who serve H5647 them. (Mal 3:17)

Since you have to capture someone to rape them and you can’t capture people this would outlaw rape. Also raping a person is like taking them temporarily as a sex slave so the prohibition against forced servitude or slavery would indirectly outlaw rape as well.

2 The second reason it does not explicitly mention rape is because of the nature of ancient law which is not meant to be comprehensive:

Excursus: The Paradigmatic Nature of Biblical Law

Modern societies generally have opted for exhaustive law codes. That is, every action modern society wishes to regulate or prohibit must be specifically mentioned in a separate law.  Under the expectations of this exhaustive law system, state and/or federal law codes run to thousands of pages and address thousands of individual actions by way of requirement or restriction or control or outright banning of those actions.  By this approach, all actions are permitted that are not expressly forbidden or regulated.  Thus it is not uncommon that criminals in modern Western societies evade prosecution because of a “technicality” or a “loophole” in the law—their undesirable actions are not exactly prohibited or regulated by a written law, so they cannot be convicted even though an objective observer may be convinced that what they did surely deserved punishment.

Ancient laws did not work this way. They were paradigmatic, giving models of behaviors and models of prohibitions/punishments relative to those behaviors, but they made no attempt to be exhaustive.  Ancient laws gave guiding principles, or samples, rather than complete descriptions of all things regulated.  Ancient people were expected to be able to extrapolate from what the sampling of laws did say to the general behavior the laws in their totality pointed toward.  Ancient judges were expected to extrapolate from the wording provided in the laws that did exist to all other circumstances and not to be foiled in their jurisprudence by any such concepts as “technicalities” or “loopholes.”  When common sense told judges that a crime had been committed, they reasoned their way from whatever the most nearly applicable law specified to a decision as to how to administer proper justice in the case before them.  Citizens of ancient Israel, and especially its judges, had to learn to extrapolate from whatever laws they had received from Yahweh to whatever justice-challenging situation they were dealing with.  The number of laws dealing with any given application of justice might be few, but that would not prevent justice from being applied.  It would simply have been the case that all parties were expected to appeal for guidance to those laws that did exist, whether or not expressed specifically in terms that dealt with the case under consideration.  In other words, the Israelites had to learn to see the underlying principles in any law and not let the specifics of the individual casuistic citation mislead them into applying the law too narrowly.

God’s revealed covenant law to Israel was paradigmatic.  No Israelite could say: “The law says I must make restitution for stolen oxen or sheep (Exod. 22:1), but I stole your goat. I don’t have to pay you back,” or “The law says that anyone who attacks his father or mother must be put to death (Exod. 21:15), but I attacked my grandmother, so I shouldn’t be punished,” or “The law says that certain penalties apply for hitting someone with a fist or a stone (Exod. 21:18), but I kicked my neighbor with my foot and hit him with a piece of wood, so I shouldn’t be punished.”  Such arguments would have insulted the intelligence of all concerned and made no impact on those rendering judgments.  It is in connection with the paradigmatic nature of Israel’s covenant law that Jesus, following the established tradition in Judaism, could make so sweeping an assertion as that two laws sum up all the rest [Matt. 22:34-40].  Properly understood, two laws do indeed sum up everything in the entire legal corpus of the Old Testament.  So do ten laws (the Ten Words/Commandments); so do all six hundred and thirteen.  The numbers go no higher, nor would they need to.  If a reasonable number of comprehensive and comprehensible laws (as few as two, as many as six hundred and thirteen) are provided to a people as paradigms for proper living, there is no excuse for that people to claim ignorance of how to behave or to claim innocence when their sins are found out.

. . .

A final implication of paradigmatic law: not all laws will be equally comprehensive in scope.  That is, some will be very broad in their applicability (love Yahweh your God) and some much more narrow (do not bear false witness).  One might ask, “Why not say ‘don’t be dishonest in any way,’ which would be broader and more comprehensive than ‘don’t bear false witness’?”  But that would be missing the way paradigmatic law works: through a somewhat randomly presented admixture of rather specific examples of more general behaviors and very general regulations of broad categories of behavior, the reader/listener comes to understand that all sorts of situations not exactly specified (either because a law is so broad or so narrow) are also implicitly covered.  In other words, when all the laws are considered together, one’s impression is that both the very narrow, precise issues and the very broad, general issues fall under the purview of God’s covenant.  The wide variability of comprehensiveness is intended to help the person desiring to keep the covenant to say, “I now see that in the tiniest detail as well as in the widest, most general way, I am expected to try to keep this law—in all its implications, not just in terms of its exact wording.”  Some commandments are thus less broad in scope in the way they are expressed than is necessary to cover all the intended actions; others are so broad in scope in the way they are expressed that one could never think up all the ways they might be applied.  This is just as it should be.  The narrow and the broad taken together suggest the overall comprehensiveness of God’s covenant will for his people.  (p. 442-45)
https://www.rodneychrisman.com/2010/08/11/the-paradigmatic-nature-of-biblical-law/ see original source: https://books.google.com/books?id=8H9E00e5PSwC&pg=PA442#v=onepage&q&f=false

3 There was already a law mandating that servants not be held against their will. This can be combined with the rule of “light and heavy” to also outlaw holding anyone against their will which is a prerequisite for rape.

15 Slaves who have escaped to you from their owners shall not be given back to them. 16 They shall reside with you, in your midst, in any place they choose in any one of your towns, wherever they please; you shall not oppress them. (Deuteronomy 23:15-16 )

Essentially servants would have had the least rights in the society, so if people with the least rights couldn’t be held against their will then how much more the non-servants? Light and heavy is described below:

Kal Vahomer (Light and heavy)

The Kal vahomer rule says that what applies in a less important case will certainly apply in a more important case. A kal vahomer argument is often, but not always, signaled by a phrase like “how much more…”

The Rabbinical writers recognize two forms ok kal vahomer:

kal vahomer meforash – In this form the kal vahomer argument appears explicitly.
kal vahomer satum – In which the kal vahomer argument is only implied.
There are several examples of kal vahomer in the Tenach.

For example: Behold the righteous shall be recompensed in the earth: much more the wicked and the sinner. (Proverbs 11:31)

And: If you have run with footmen and they have wearied you, then how can you contend with horses? (Jerermiah 12:5a)

Other Tenach examples to look at: Deuteronomy 31:27; 1 Samuel 23:3; Jerermiah 12:5b; Ezekiel 15:5; Esther 9:12

There are several examples of kal vahomer in the New Testament. Y’shua often uses this form of argument.

For example: If a man receives circumcision on the Sabbath, so that the Law of Moses should not be broken, are you angry with me because I made a man completely well on the Sabbath? (Jn. 7:23)

And: What man is there among you who has one sheep, and if it falls into a pit on the Sabbath, will not lay hold of it and lift it out? Of how much more value then is a man than a sheep? Therefore it is lawful to do good on the Sabbath. (Mt. 12:11-12)

Other examples of Y’shua’s usage of kal vahomer are: Matthew 6:26, 30 = Luke 12:24, 28; Mathhew 7:11 = Luke 11:13; Matthew 10:25 & John 15:18-20; Matthew 12:12 & John 7:23

Paul especially used kal vahomer. Examples include: Romans 5:8-9, 10, 15, 17; 11:12, 24; 1 Corinthians 9:11-12; 12:22; 2 Corinthians 3:7-9, 11; Philippians 2:12; Philemon 1:16; Hebrews 2:2-3; 9:13-14; 10:28-29; 12:9, 25.

http://www.yashanet.com/studies/revstudy/hillel.htm

4 The fourth reason rape may not have been mentioned is because of cultural differences that made it not as important to address directly.

Unlike the Greeks and Romans, the ANE was not very ‘into’ using slaves/captives for sexual purposes, even though scholars earlier taught this:

“During the pinnacle of Sumerian culture, female slaves outnumbered male. Their owners used them primarily for spinning and weaving. Saggs maintains that their owners also used them for sex, but there is little actual evidence to support such a claim” [OT:EML:69]

http://christianthinktank.com/midian.html

There’s no case in that Bible where rape was taken lightly. The rape of the concubine in Judges was avenged by a national civil war. (Judges 19-21) The rape of Tamar by Amnon was avenged by Amnon’s death and possibly was the cause of another national civil war because David didn’t punish Amnon. (2 Sam. 13) What’s commonly called the rape of Dinah (Gen 34:2) (which may have even been consensual) was avenged by genocide. (Gen 34:25-31) Do we even take rape that seriously today? I think not.

The one possible exception to this pattern is in judges 21 where the men of Benjamin are given women that were captured from Jabesh-Gilead, in addition, they are invited to steal women at a festival which they accomplish. However, a few points: 1. This was a terrible time in Israel and the story illustrates that. 2. There is also genocide and killing going on left and right so the fact that another atrocity is overlooked is expected. 3. The women of Jabesh-Gilead that Benjamin take are specifically those that have never lain with a man. There is no way to test for virginity reliably–especially in that day–and so this was most likely because the women were too young to have been with a man, hence they would have had to wait for them to mature before marriage. 4. It is never said that they raped anyone, rather the women seeing that they were taken and that their fathers were not going to do anything about it may have eventually acquiesced willingly (although admittedly this still terrible and is not consensual since it is done under duress and manipulation). Nevertheless, these cases differ from the explicitly stated cases of rape and do not show an–overall–cultural acquiescence to those cases.

In the Torah women were protected from having their conjugal duty diminished “If he takes another wife to himself, he shall not diminish the food, clothing, or marital rights of the first wife.” (Ex 21:10) and Rachel and Leah were able to trade a night with Jacob for mandrakes Gen 30:14-18. Also note that it’s the less attractive Leah that tells Jacob: “‘You must come in to me; for I have hired you with my son’s mandrakes.’ So he lay with her that night.” God killed Onan for not having sex in a way that would cause pregnancy when he was supposed to perform the duty of the Levarite in Genesis 38:8-10. Hannah’s prayer was answered by God when she cried because she was not able to become pregnant and was ridiculed by her rival 1 Samuel 1:1-28. Part of one of the Jewish interpretations of Leviticus 19:29 in the Talmud is to not deny your daughter her right of marriage for too long:

Ein Yaakov (Glick Edition), Sanhedrin 9:1
(Fol. 76) You shall not profane your daugher (Lev. 19, 29). R. Eliezer says: “This refers to one who marries off his [young] daughter to an old man.” R. Akiba says: “This refers to one who leaves his daughter unmarried until she enters the age of womanhood.” R. Cahana in the name of R. Akiba said (Ib. b) Who is to be considered poor and shrewd-wicked? He who has left his daughter unmarried until she enters the age of womanhood.”

Rather than sex being an obligation of women, it seems that it was an obligation of men especially for the purpose of giving women children. This probably breaks a lot of the preconceptions most people have about the Biblical culture.

Here’s an interesting statement on how culture really determines what people are likely to do:

At the same time, many of the men who have violated a woman sexually do not meet clinical diagnostic criteria as either sociopaths, sexual deviants, or for that matter neurologically (or intellectually) impaired. While “stranger danger” stirs deep, easy dread (and is hence a useful trope for screenwriters and politicians), most sexual violence takes place among otherwise normative people who are familiar with each other and are involved in some type of relationship. This raises the possibility that to these perpetrators, the violence appears, in context, normative. By this argument, a sizable proportion of the men who attack women are following, rather than flaunting, social dictates.

The role of social dictates in shaping individual behavior is often overlooked because we are inclined to favor internal causes when explaining other people’s behavior. This tendency is so fundamental that it has a name: The Fundamental Attribution Error. (When evaluating our own, particularly negative behavior, however, we often rely on less damning external explanations. To wit: you’re late for work because you’re lazy. I’m late because of traffic. This is called the “actor-observer effect”).

It turns out, however, that social and situational variables often override individual characteristics in predicting one’s behavior and overall future. If I need to predict whether you’ll be dancing next Friday night, it’s better for me to inquire about where you’ll be that night than about your extraversion score on a personality test. If I want to know whether you’ll become wealthy, I’m better off basing my prediction on whether your parents are wealthy than on the conscientiousness score on your personality test. We are more beholden to our circumstances than we tend to believe. This is true in general; and it’s true for sexual violence in particular. For example, contextual and group factors (such as orders from the leadership, pre-conflict rates of sexual violence, intra-group dynamics, gender inequality) predict the prevalence of war rapes better than the personalities or characteristics of individual soldiers.

Circumstances matter in part because they set (or remove) certain hard parameters. Regardless of your personal characteristics, if you’re at your wedding, you’re going to dance. The fact also remains that if you are born in Afghanistan to poor parents, you have no access to capital. If you’re born in Manhattan to wealthy parents, you do. Circumstances, particularly social ones, also matter greatly because as herd animals, we are utterly dependent on the approval, acceptance, cooperation, and support of others. Thus, we are wired to notice, take into account, and align with the behavior of those around us.

If you’re still telling yourself that you are your own person, doing your thing, not giving a damn about what others think—then you need to grow up and face the (social) facts. Society gives you life. It is your main source of strength and identity. Without it you’re hopeless—an ant that has lost its colony. Society provides you with the tools and rules for living. It has fearsome powers of reward and retribution. In other words society, as the sociologist Randall Collins has argued brilliantly, is God.
https://www.psychologytoday.com/us/blog/insight-therapy/201902/when-men-attack-why-and-which-men-sexually-assault-women

We expect people back then to be like they are today. However, this isn’t always the case. The first difference we do know is that they were a polygynist society which is sometimes caused by a need to deal with the issue of lack of men (sometimes caused by war):

“Deal with the “problem” of surplus women.”

http://www.religioustolerance.org/polyprac.htm

However, this is speculation. I haven’t had any luck on finding what the actual gender ratio was in biblical times and when I have found articles there seem to be different opinions.

However, some things I can observe from the law and culture is that: 1. there is no premarital sex, a man who sleeps with a woman is supposed to marry her “he shall surely marry her” and “unless the father absolutely refuses” in Exodus 22:16 and Deuteronomy 22:29 (I argue that this is indeed a seduction but don’t have time to go into this now) Here’s something I wrote that touches on premarital sex: https://kingdomofgodcommunes.org/2019/02/03/gesenius-and-leviticus-1929/ This makes early sexual competition over mates virtually non-existent if followed correctly. 2. Marriage is arranged by the family at a young age which also prevents any rejection based on sexual prowess that seems to increase the risk of men becoming rapists. It is possible however that someone’s wife would reject them and that might increase the risk of rape. However, based on my arguments on the Torah the consent of both the person being married and the guardian was required because the Torah gives the freedom to run away for any reason based on not holding servants against their will and the rule of light and heavy. Also, the modern rise in narcissistic personality disorder may be a result of modern living and individualism all of which would be absent in the tribal society of the Bible: https://www.psychologytoday.com/us/blog/freedom-learn/201401/why-is-narcissism-increasing-among-young-americans

The following is about rape being associated with narcissism:

Heavy drinking, perceived pressure to have sex, a belief in “rape myths” — such as the idea that no means yes — are all risk factors among men who have committed sexual assault. A peer group that uses hostile language to describe women is another one.
Yet there also seem to be personal attributes that have a mediating effect on these factors. Men who are highly aroused by rape porn — another risk factor — are less likely to attempt sexual assault if they score highly on measures of empathy, Dr. Malamuth has found. What about the idea that rape is about power over women? Some experts feel that research into hostile attitudes toward women supports this idea. In general, however, researchers say motives are varied and difficult to quantify. Dr. Malamuth has noticed that repeat offenders often tell similar stories of rejection in high school and of looking on as “jocks and the football players got all the attractive women.”As these once-unpopular, often narcissistic men become more successful, he suspects that “getting back at these women, having power over them, seems to have become a source of arousal.”

https://www.nytimes.com/2017/10/30/health/men-rape-sexual-assault.html

I should be clear when arguing this that I am not blaming women rejecting men for causing men to rape. I am saying based on science allowing men to freely compete and be rejected by women on an individual basis seems to increase the likelihood that narcissistic men will rape. A family-based method of choosing mates would redirect anger towards a rival family which could be bad as well, it’s just not likely to result in rejected narcissistic men blaming women. There’s a similar behavior in orangutans for those who find animal studies helpful in explaining human behavior:

One possible reason for the rapes, she said, is because it takes so long for males to mature in the rain forest. In zoos, captive male orangutans usually become mature at age 13 or 14. In the rain forest of Borneo, however, they do not become mature until age 20, only then developing the cheek pads and large throat sac of a male adult. Although they are capable of sexual activity before that, females in heat are not attracted to them, so their only sexual option becomes force.

https://www.latimes.com/archives/la-xpm-1992-01-13-me-231-story.html

There’s a Biblical ethics paper I am working on that will address more misconceptions like this and fill in some details on how ancient Israelite law was supposed to work. I think there is a huge amount of bias in the way people interpret the Bible from chronological bigotry. Us moderns looking backwards/downwards like to feel good about ourselves and like we are making moral progress. We also just like to be able to feel outraged about something, whether it’s Harambe’s killing or ancient people mistreating their women. This seems to be the case irrespective of our level of knowledge on these topics. However, the bias that comes with interpreting the law through a lens that assumes words like “slave” (used by some translations of the Bible) meant the same thing back then as it does today is even worse. If we poison the well with misunderstandings as bad as that, it’s no wonder that we see other parts of the law as barbaric.

Countries for Communes

This post is more of an inventory than a post and may be used in the future as a page to collect legal and logistical information. The question: “what country is the best place to found a commune?” is dependent on several variables:

1. Ethics

Ethics asks where we could found the commune so as to love God and our fellow man most effectively? Could we morally follow all the laws of the country in which it is situated? Could we have a good impact on the environment?

Give Unto Ceasar

There’s a possiblity Yeshua was against paying taxes in his day. We will present evidence here but this does not mean that Yeshua would have been against paying taxes today. Herod was looked at less favorable by God than our leaders today since he was divinely executed for starting to accept that we was God (an anti-Christ) in Acts 12:22-23.

The Herodians were the political party of Herod the king and favored submitting to Rome, hence it is interesting that they brought that group in order to trap him and tried to flatter him so that he would disregard considering “men” in his answer (possibly danger from men or opinions from men?)

15 Then the Pharisees went and plotted how they might entangle Him in His talk. 16 And they sent to Him their disciples with the Herodians, saying, “Teacher, we know that You are true, and teach the way of God in truth; nor do You care about anyone, for You do not regard the person of men.
(Matthew 22 NKJV)

Luke’s version is even more clear:

20 So they watched Him, and sent spies who pretended to be righteous, that they might seize on His words, in order to deliver Him to the power and the authority of the governor.21 Then they asked Him, saying, “Teacher, we know that You say and teach rightly, and You do not show personal favoritism, but teach the way of God in truth: 22 Is it lawful for us to pay taxes to Caesar or not?” (Luke 20:20-22)

An unorthodox reading of Christ’s responses can be made in light of Deuteronomy 10:14 which says “Indeed heaven and the highest heavens belong to the Lord your God, also the earth with all that is in it.” and Genesis 1:27 which states “So God created man in His own image; in the image of God He created him; male and female He created them.”

Now consider Yeshua’s response in this light:

“And He said to them, “Whose image and inscription is this?” . . . “Render therefore to Caesar the things that are Caesar’s, and to God the things that are God’s.”” (Matthew 22:20-21)

Yeshua mentions an inscription which this may shed some light on:

“But what did the inscription say? On the front, the coin said “Tiberius Caesar, son of the divine Augustus.” The reverse side of the coin read “Greatest Priest.” But that is how it was inscribed in Latin. In Greek, Tiberius coins and inscriptions read theou huios (“son of the god”). Note with special emphasis that Tiberius put the word “god” before the word “son” in his inscriptions and coins.”
http://christianmonthlystandard.com/index.php/son-of-god-in-roman-world/

Note: “son of” can mean “in the nature of”, or “in the image of” e.g. Colossians 1:15

Add on to this that Jesus had charges of opposing the payment of taxes: Luke 23:2 and that he says to shun tax collectors: Matthew 18:17 and you can see why you might read Jesus as saying cryptically not to pay taxes. (cryptically because the Herodians were there and he didn’t want to get killed just yet) However, this must not be used to negate: 1 Peter 2:13-25 for those rulers who “punish those who do evil and to praise those who do good” We must ask ourselves which governments this holds for.

To sum up we must consider several things when choosing the country to found a commune:

1 Does it have a government we can morally pay taxes to?

2 Does it uphold 1 Peter 2:13-25 in general?

2. Viability

Viability is the likelihood that a commune would not go bankrupt. This would be dependent on the country’s economy and member’s experience with running businesses or services related to the economy and their ability to navigate the social, cultural and linguistic environment.

3. Legality

Legality asks: how would we have to structure the commune to make it operate legally in the country?

United States

7.25.23 Religious and Apostolic Associations
7.25.23.1 (02-23-1999)
Requirements for Exemption

1. IRC 501(d) and 501(a) provide exemption for a religious or apostolic association or corporation if:

a. it has a common or community treasury, even if it engages in business for the common benefit of its members; and

b. the members include in their gross income their entire pro rata shares, whether distributed or not, of the taxable income of the association or corporation for the year.

2. Any amount included in the gross income of a member is to be treated as a dividend received.
https://www.irs.gov/irm/part7/irm_07-025-023

Hutterite colonies are formed voluntarily by adult males who agree upon certain rights and obligations among themselves and on behalf of their families. The main purpose of the colonies is to live a communal life following the tenets of the Hutterische Church society. The colonies, while religious, engage in agricultural activities (farming, raising stock, dairying, etc.).

In the Denver Region, two types of colonies have been identified. The most common type is a nonprofit corporation with corporate officers and a board of directors. Generally, the officers do not draw a salary and the colonies do not issue stock certificates. The corporations are tax exempt under Section 501(d) of the Internal Revenue Code and are required to file a United States partnership income tax return (Form 1065). Individual members may or may not file individual tax returns.

The other type of Hutterite colony found in the Denver Region is an unincorporated religious association. Like the incorporated colonies, they are nonprofit and tax-exempt under Section 501(d). Instead of officers or directors, they have a board of trustees. They also file partnership tax returns. There are very few such associations. The majority of colonies are incorporated.
https://secure.ssa.gov/poms.nsf/lnx/0500501010DEN

There is an unverified quote from Wikipedia that states that this structure, although officially “for-profit” generally results in no income taxes:

The group operates as a 501 (d) – “for-profit organization with a religious purpose and a common treasury.” The community pays property taxes, but the 501d structure tends to result in no income tax liability.[3][13]
https://en.wikipedia.org/wiki/Twelve_Tribes_communities

If this is true, incorporating as this or another entity that results in no income taxes like a 501(c)3 may seem desirable but brings up two questions: 1 is this ethical? 2 What reaction would a growing network of communes get from the country and its citizens if that network was paying no income tax? A more extreme example to consider is: what would be the reaction if that network was labeled as an entity exempt from income taxes such as a 501(c)3?

Seasteading

We are also looking into Seasteading as a way to have more freedom for how to run the commune. However, it looks like it would be initially more expensive and it is unsure if this is needed but we thought we would leave it here just in case: https://www.seasteading.org

The Seasteading institute previously signed an agreement with the government of French Polynesia:  Memorandum of Understanding Although the agreement now is apparently void: Radio New Zealand

4. Profitability

Profitability is how profitable the commune would be and therefore how many resources could be dedicated to further expansion.

5. Leading of the Holy Spirit

We put this last not because we believe this is unimportant, on the contrary, we believe this is the most important aspect if it can be proven and tested. We just have not had any leading with regards to this thus far. This may or may not be normal. Regarding this we quote:

40 And with many other words he testified and exhorted them, saying, “Be saved from this perverse generation.” 41 Then those who gladly received his word were baptized; and that day about three thousand souls were added to them. 42 And they continued steadfastly in the apostles’ doctrine and fellowship, in the breaking of bread, and in prayers. 43 Then fear came upon every soul, and many wonders and signs were done through the apostles. 44 Now all who believed were together, and had all things in common, 45 and sold their possessions and goods, and divided them among all, as anyone had need. (Acts 2 NKJV)

David Bentley Hart has come to the conclusion that the word translated “fellowship” in verse 42 refers to the practice of common ownership and communalism. [1] Even if Dr. Hart is incorrect verses 44 and 45 make that statement anyway. The signs and wonders done by the apostles are mentioned together with them following their doctrine and giving up all their possessions. Therefore, it may be possible that we won’t have miraculous intervention by the Holy Spirit until we start practicing as the Apostles of old. In addition, God talks about scattering his people and hiding his face from them because of their idol worship, are we in that situation now or at least somewhat?

20 He said: I will hide my face from them,
I will see what their end will be;
for they are a perverse generation,
children in whom there is no faithfulness.
21 They made me jealous with what is no god,
provoked me with their idols.
So I will make them jealous with what is no people,
provoke them with a foolish nation. (Deuteronomy 32:20-21)

17 My anger will be kindled against them in that day. I will forsake them and hide my face from them; they will become easy prey, and many terrible troubles will come upon them. In that day they will say, ‘Have not these troubles come upon us because our God is not in our midst?’ 18 On that day I will surely hide my face on account of all the evil they have done by turning to other gods. (Deuteronomy 17-18)

[1]

I came to the conclusion that koinonia often refers to a precise set of practices within the early Christian communities, a special social arrangement — the very one described in Acts — that was integral to the new life in Christ. When, for instance, the Letter to the Hebrews instructs believers not to neglect koinonia, or the First Letter to Timothy exhorts them to become koinonikoi, this is no mere recommendation of personal generosity, but an invocation of a very specific form of communal life.
https://www.nytimes.com/2017/11/04/opinion/sunday/christianity-communism.html