Westminster Theological Journal 41.1 (1978) 108-23

         Copyright © 1978 by Westminster Theological Seminary.  Cited with permission.

 

 

 

 

         MISCARRIAGE OR PREMATURE BIRTH:

 ADDITIONAL THOUGHTS ON EXODUS 21:22-25*

 

                                               H. WAYNE HOUSE

 

THE interpretation of Exodus 21:22-25 has received much

attention in the last few years in evangelical circles. This

writer's interest was sparked from the article "Old Testament

Texts Bearing on Abortion" by Bruce Waltke in Christianity

Today and another essay by Waltke in Birth Control and the

Christian. In addition, the various interactions between Waltke,

John Warwick Montgomery, and Jack Cottrell provided too

much interest for me not to examine the area anew for myself.

This paper is an exegesis of Exodus 21:22-25 with special atten-

tion given to Waltke's position.1

            Several basic studies must be done before this passage will

lay itself open for the interpreter: (1) One must understand the

meaning of vxcy in the text and ascertain whether the transla-

tion of the term as "miscarriage," as found in most translations,

is correct. (2) Also, one must determine whether the use of

hydly the normal word for child, is to be understood as an un-

born child of equal worth with an adult, or whether the child

was only of property value in the Hebrew culture. (3) Since

several Near Eastern legal documents have similar passages,

should one consider the Mosaic statement dependent on these,

and so to be similarly interpreted? (4) a question of importance

 

*This paper was delivered at the First Annual Meeting of the South-

western Section of the Evangelical Theological Society on April 22, 1977

at Dallas Theological Seminary.

   1 Waltke has revised some of his thinking on the question of abortion

since the publication of the above mentioned works. He recognized the

importance of Cottrell's arguments against his position but retorts: "Al-

though I still think that interpretation [the viewpoint on Ex. 21:22-25 he

offered] is the proper one, Cottrell made a good case against it and the

evidence supporting it is less than conclusive." (JETS, 19, No. 1, 1976, 3).

Though I deeply respect the exacting scholarship of Waltke, I think that

Cottrell has given us the proper direction for the understanding of this

passage.

108



MISCARRIAGE OR PREMATURE BIRTH                       109

 

is whether Nvsx (harm) refers to the mother or child, or both,

and what degree of harm is involved in the word Nysx. (5) How

is the lex talionis of verses 24-25 related to verse 22? (6) One

must then decide the value of the passage for study on the abor-

tion question.

The importance of interpreting Exodus 21:22 becomes ap-

parent when one reads a statement on the moral legitimacy of

abortion such as what follows:

 

   A second argument in favor of permitting induced abortion

            is that God does not regard the fetus as a soul [Hebrew

            nephesh], no matter how far gestation has progressed. There-

fore, the fetus does not come under the protection of the fifth

commandment. That he does not so regard the fetus can be

demonstrated by noting that God does not impose a death pen-

alty for the destruction of a fetus. A basic feature of the

Mosiac Code is the lex talionis, or principle of ‘an eye for an

eye, life for life’ (e.g. Lev. 24:28). The law plainly exacts:

‘If a man kills any human life [Hebrew nephesh adam] he will

be put to death’. But according to Exodus 21:22ff, the

destruction of a fetus is not a capital offense. The divine law

reads: ‘When men struggle together and one of them pushes

a pregnant woman and she suffers a miscarriage but no other

harm happens, he shall be be fined according as the woman's

husband exact from him ... But if harm does ensue, then you

shall impose soul [nephesh] for soul [nephesh] . . .’ (Ex.

21:22-24). Clearly, then, in contrast to the mother, the fetus

is not reckoned as a soul [nephesh]. The money compensation

does not seem to have been imposed in order to protect the

fetus but to indemnify the father for his loss.2

 

In contrast to the above translation, Cassuto presents the most

accurate rendition of which this writer is aware of the intent of

Exodus 21:22:

   When men strive together and they hurt unintentionally

a woman with child, and her children come forth but no mis-

            chief happens--that is, the woman and the children do not

die--the one who hurts her shall surely be punished by a fine.

But if any mischief happens, that is, if the woman dies or the

children, then you shall give life for life.3

 

   2 Bruce M. Waltke, "Old Testament Texts Bearing on the Issues,"

Birth Control and the Christians, eds. Walter O. Spitzer and Caryle L.

Saylor (Wheaton, Ill.: Tyndale House Publishers, 1969), pp. 10-11.

    3 U. Cassuto, Commentary on the Book of Exodus (Jerusalem: Magnes

Press, The Hebrew University, 1967), p. 275.



110                 WESTMINSTER THEOLOGICAL JOURNAL

 

THE TRANSLATION OF xcy

 

Cassuto translates vxcy as "come forth," a translation con-

trary to the NASB, RSV, NEB, and a host of others, in addi-

tion to a number of ancient and modern commentators. Most,

like Waltke, take vxcy as the "child miscarries or aborts"; how-

ever, there seems to be no lexicographical or impelling context-

ual reason for doing so. The consistent use of xcy in the

Hebrew Old Testament hears out the meaning "come or go

out."4 Not only is this true, but xcy is found in specific texts

concerning childbirth  5

 

Gen. 25:25     ynvmdx Nvwrh xcyv

And the first came out (was born) red

 

Gen. 38:28     hnwxr xcy hz

This one came out (was born) first

 

Also the adjoining passages Gen 25:26 and Gen 38:29 read simi-

larly.

The Ugaritic uses a cognate for xcy. Although this writer

did not find an example in Ugaritic texts for "birth," the term

was consistently used to mean "come out"6:

 

Text 68:2        [           ] hy [    ] lassi. hm. ap. amr [  ]

[           ] alive [            ]

I shall bring them out

 

Text 68:6        [b] ph. rgm. lysa. bspth. wttn gh. kgr

From his mouth the word went forth

      From his lips, his utterance

 

    4 Francis Brown, S. R. Driver, and Charles A. Briggs, A Hebrew and

English Lexicon of the Old Testament (Oxford: At the Clarendon Press,

1907), pp. 422-25. It gives "go or come out" as the basic meaning. Then

it lists a number of synonyms. The Ex 21:22 passage is mentioned as

meaning "untimely birth." Not one time, however is xcy used for mis-

carriage.

    5 Cf. also Job 1:21; 3:11 ; Eccles 5:15; Jer 1:5; 20:18. In one passage,

Nurn 12:12, NY+ is used for a still-born birth, but this still is not a

miscarriage.

   6 All Ugaritic texts cited are from Cyrus H. Gordon, Ugaritic Text-

book, Texts in Transliteration, Cueifornr Selections (Roma: Pontificium

Institutum Biblicurn, 1965). Translations are from C. H. Gordon, Ugaritic

Literature (Roma: Pontificium Institutum Biblicurn, 1949).



MISCARRIAGE OR PREMATURE BIRTH                       111

 

Even as ys' in Ugaritic, xcy basically means what the Greek

word e]ce<rxomai, conveys, "from within to without." The LXX

renders the phrase in question kai ece<lq^ to> paidi<ou au]th?j. So

then one may agree with Jackson:

 

   Exod. xxi refers not to a miscarriage, but rather to a pre-

mature birth, a Fruhgeburt, not a Fehlgeburt. This view is

not entirely new. Geiger was of the opinion in 1857, and Kiel

& Delitzsh, basing themselves on yeladeyhah, and Dillmann

also voiced it. Budde objected to it, and Jacob, apparently the

last author to have considered this possibility, gave it some

approval. But none of these authors considered the evidence

in any detail, or attempted to explain the historical develop-

ment of the law.7

 

Had Moses intended to convey the idea of "miscarriage," he

certainly would have used the Hebrew word for miscarriage,

lkw. This term is used several times in the Pentateuch,8 as well

as elsewhere:

Gen 31:38      vlkw xl jyzfv jylHr

Your ewes and she-goats have not

cast (aborted) their young

Hos. 9:14       lykwm MHr Mhl Nt

Give them a miscarrying womb

Ex. 23:26       jcrxb hlkwm hyht xl

There shall none be casting (aborting)

their young in your land

 

Hebrew lkw has a cognate in Ugaritic, which is tkl.9 It appar-

ently carries the significance of the Hebrew term:

 

Text 52:8        mt. wsr. ytb. bdh. ht. tkl. bdh

In his hand is the staff of privation

In his hand is the staff of bereavement

 

    7 Bernard S. Jackson, "The Problem of Exod. XXI 22-23 (IUS

Talionis)," Vetus Testamentum, XXIII, 3 (July, 1973), 273-304.

   8 Cf also II Kings 2:19, 21; Isa. 47:8; cf BDB, pp. 1013-1014 for fur-

ther confirmation.

   9 Root possibly yld or ys'.

 



112                 WESTMINSTER THEOLOGICAL JOURNAL

 

Text 2002:4               ht. tk [ l ]

Staff of bereavement

 

In addition Virolleaud cites ttkl bnwth (RS 24. 244:62) " ‘she

(sps) renders sterile his (Hrn's) creative powers’."10 Here the

sense might either be a forced sterility or making ineffective the

results of his creative ability and so abortion.

 

THE MEANING OF dly

 

Those who would use the passage under discussion as a proof

text for abortion seek to differentiate between the fetus and a

human being. To quote Waltke again, "God does not regard the

fetus as a soul ... no matter how far gestation has progressed."

The reason that Waltke believes this is that "God does not im-

pose a death penalty for the destruction of a fetus."11 As will be

seen in further discussion, God does require the death penalty

for the death of a fetus ; our immediate concern is to show that

the Hebrew did not distinguish between a fetus and a child al-

ready born. Keil, in his commentary on Exodus, when discuss-

ing this passage, sees the word dly as strategic to his argument.12

dly refers in Hebrew literature to a "child, son, boy, youth.”13

There seems to be no distinction in Moses' mind between a fetus

and a normal child. One could posit ignorance on his part, since

he did not have the advantage of our arbitrary scientific termin-

ology, but it seems that equal value is on the born and unborn.

There also seems no reason to assign arbitrarily a different sta-

tus to the dly of Exodus 21:22, especially with a correct under-

standing of xcy, than to the dly  of Isaiah 9:6 (5).

Montgomery refers to Kiel for evidence of dly referring to

a child, not only a fetus, with which interpretation Waltke dif-

fers:

 

   10 Gordon, UT, Glossary, p. 502, entry 2674.

   11 Waltke, p. 10. Waltke has subsequently changed his thinking concern-

ing this issue. He has since concluded that the fetus is fully human, its life

seminally mediated through the parents, and a possessor, from conception,

of the image of God. Bruce K. Waltke, "Reflections from the Old Testa-

ment on Abortion," JETS, 19, 1 (Winter, 1976), 5-13.

   12 C. F. Keil and F. Delitzsch, "Exodus," Commentary on the Old

Testament, Vol 1 (Grand Rapids: William B. Eerdmans Publishing Com-

pany, n.d.), p. 135.

   13 BDB, p. 409.



MISCARRIAGE OR PREMATURE BIRTH                       113

 

In addition, Montgomery is mistaken when he says: ‘The

equality of mother and unborn child in Exodus 21 is upheld

... by a classic Old Testament scholar such as the nineteenth-

century Protestant Delitzch.’ In reality, Keil (not Delitzsch)

is making a different point; namely, the child in question is

not a fetus but a fully deveolped human being. Lange calls

this interpretation ‘strange’. Obviously, Keil's interpretation

has nothing to do with Montgomery's conclusion.14

 

Yet contrary to Waltke, it is not obvious that Keil is referring

to a fully developed human being, since the statement by Keil

on this issue reads thus:

 

    If men strove and thrust against a woman with child, who

had come near or between them for the purpose of making

peace, so that her child come out (come into the world), and

no injury was done either to the woman or the child that was

born, a pecuniary compensation was to be paid, such as the

husband of the woman laid upon him ... because even if no

injury had been done to the woman and the fruit of her womb,

such a blow might have endangered life."15

 

Waltke, in interpreting Keil's comment on this passage, ap-

parently overlooked the context of Keil's statement. Keil was

arguing with Philo and others who viewed the child in the pas-

sage as not having assumed human form yet in the womb and so

to be considered less than a human being:

 

   But the arbitrary character of this explanation is apparent

at once; for dly only denotes a child, as a fully developed hu-

man being [but here Keil understands a fully developed hu-

man being inside the womb, not one already born as Waltke

intimates, so still a fetus], and not the fruit of the womb

before it has assumed human form.16

 

In addition to the statement of Keil, the biblical text speaks

of a premature birth, as will be demonstrated shortly. One won-

ders what differentiates the unborn child from the born child,

unless one presupposes a creationist viewpoint? And, actually

what more viability does a new born child have than the unborn?

What new factor has entered in that could consider one death

just an unfortunate miscarriage, and the other murder? The

 

   14 Waltke, "Eutychus and His Kin," Christianity Today, (Jan 3, 1969), 14.

   15 Keil and Delitzsch, pp. 134-35.

   16 Ibid., footnote 1, pp. 134-35.



114                 WESTMINSTER THEOLOGICAL JOURNAL

 

point that is put forth here is that the Hebrew writers do not

differentiate between child born or unborn.

Waltke now acknowledges the truth of this statement:

 

    No evangelical would deny that a baby is a human being

and that it is made in the image of God, that is, that it has the

capacity for spiritual, rational and moral response. The ques-

tion, then, is ‘Does the fetus have that capacity?’ The answer

is that it does and that this capacity was already present at the

time of conception.17

 

Before passing from the discussion on dly  the reason for the

plural will be briefly presented. Keil says that "the plural hydly

is employed for the purpose of speaking indefinitely, because

there might possibly be more than one child in the womb."18

Something more than what Keil has suggested may be involved

in the text since the "irregularity of the situation is the fact that

the birth is prematurely and maliciously induced."19 The use of

hydly  may be a plural "to indicate natural products in an un-

natural condition,"20 giving added evidence for a premature

birth being invoved in the text.

 

       NEAR EASTERN LAWS ON MISCARRIAGE

 

Several Near Eastern codes speak to the subject of miscarriage

caused by an injury to the woman; intentional abortion was not

the normal practice: "foeticide, throughout the course of history,

has never become a recognized social practice, but has been in

the main sporadic.”21 In the Old Testament legal codes there are

many laws governing man's relationship to his fellow man,

though these are not the oldest Semitic laws:

The Pentateuch does not contain the oldest system of

Semitic laws which is found in the jurisprudence of Babylon,

 

    17 Waltke, "Reflections from the Old Testament on Abortion," p. 13.

    18 Keil and Delitzsch, p. 135.

    19 Jack W. Cottrell, "Abortion and the Mosaic Law," Christianity

Today, XVII, 13 (March 16, 1973), 6-9.

    20 Ronald J. Williams, Hebrew Syntax, an Outline (Toronto and Buf-

falo: University of Toronto Press, 1967), p. 8, paragraph 10. I owe credit

for this observation to Barry Craig, a former classmate at Western Con-

servative Baptist Seminary.

    21 E. Neufeld, Ancient Hebrew Marriage Laws (New York: Long-

mans, Green and Co., 1944), p. 252, footnote 3.



MISCARRIAGE OR PREMATURE BIRTH                       115

 

mainly as laid down in the Code of Hammurabi. The instances

given in this code of the rule of ‘measure for measure’ go far

beyond the ‘eye for an eye’ of the Mosaic code, even when

the latter is taken in its most literal sense. Thus, where a man

strikes a pregnant free-born woman so as to cause her death

through miscarriage (cf. the case put in Ex. xxi. 22-23) under

that old Babylonian code . . . the daughter of the assailant

should be put to death. Again, when through the carelessness

of the builder a house falls and the owner's son is struck and

killed in the ruins, the builder's son should be put to death.

This extravagant application of the ‘measure for measure’

law is made impossible in Israel by Deut. xxiv. 16—‘Fathers

shall not be put to death for the children, neither shall the

children be put to death for the fathers.’22

 

From the previous quote one may see that although there is

similarity between the basic idea of lex talionis in the Babylonian

and Mosaic codes, there is no necessity for there to be exact

parallel. This point is important to the discussion that follows.

            Waltke believes that a primary argument in favor of allowing

induced abortion is the absence of any biblical text forbidding it:

     Here we must appeal to the literature of the Ancient Near

East to weigh this negative evidence. In this case the silence

of the Bible is significant because an Assyrian law dated be-

tween 1450 B.C. and 1250 B.C. prescribed death by torture in

cases of induced abortion. The text reads: ‘If a woman by her

own deed has cast [aborted] that which is within her womb,

and a charge has been brought and proved against her, they

shall impale her and not bury her. If she dies from casting

that which is in her womb, they shall impale her and not bury

her.’23

 

     22 The Jewish Encyclopedia, Vol X, ed. Isidore Singer (New York and

London: Funk and Wagnalls Co., 1905), 385. Findings at Ebla were not

publicized when this paper was written and I have not had opportunity

to examine the legal material that may be available from that site. An

interesting parallel to the Ex 21:22 passage is found in a papyrus of 89

B.C.: "An inhabitant of Hermopolis complained that another woman ‘met

me in the square of Hermes by the court there, and attacking me in conse-

quence of a dispute gave me many blows with her hands on every part of

my body, and it was the fifth month that I was with child. The blows

caused me to be laid up with sickness and my life is endangered. I inform

you in order that T. be brought up and secured until my case be ascer-

tained in the appointed period, so that if anything happens to me, she may

be treated according to the enactments concerning such conduct, and if I

survive, I may obtain satisfaction from her as is right (labw par’ authj

to dikaion wj kaqhkei). Jackson, pp. 295-96.

     23 Waltke, Birth Control and the Christian, p. 9.



116                 WESTMINSTER THEOLOGICAL JOURNAL

 

Again another example is given

 

    With respect to an accidental miscarriage the contrast be-

tween the Mosaic law and the Assyrian law is once again in-

structive. In a similar context the Assyrian law reads: ‘If a

seignior struck another seignior's wife and caused her to have

a miscarriage, they shall treat the wife of the seignior who

caused the other seignior's wife to have a miscarriage, as he

treated her: he shall compensate for her fetus with a life.

However, if that woman died, they shall put the seignior to

death ; he shall compensate for her fetus with a life. But when

that woman's husband has no son, if some struck her so that

she had a miscarriage, they shall put the striker to death; even

if her fetus is a girl he shall compensate with a life.’  We should

note this contrast between the Assyrian Law and the Mosaic:

the Old Testament, in contrast to the Assyrian Code, never

reckons the fetus as equivalent to a life.24

 

Waltke's arguments for induced abortion are twofold: (1)

Since the Old Testament does not forbid such an act, in light of

other ancient Near Eastern literature that does, it must be legiti-

mate. (2) Nothing is legislated in the Old Testament against

abortion as is common in other crimes.

Scott aptly replies to both these problems, first:

    In reply one might question the prevalence of abortion

among the Israelites whenever the surrounding civilization

prohibited it. If we assume that it was not common in the Old

Testament community, then we may regard the absence of any

Biblical text forbidding it as being due to its exceptional oc-

currence. What is exceptional scarcely requires an explicit

prohibition.

 

And Scott answers the second argument:

"Again one could argue that this could well be due to the ex-

ceptional occurrence of abortion, not only in Israel, but in the

surrounding communities.”25

One may readily see that an argument from silence, as Waltke

has presented, is of very little value, and certainly does not de-

 

     24 Ibid., p. 11. Waltke argues from this law that the death penalty is

required in Assyria for inducing an abortion by striking a woman. That

is true, if the woman also dies, but the quotation may suggest that the

death of the fetus only calls for the death of another fetus unless the man

has no heir." C. E. Cerling, Jr., "Abortion and Contraception in Scrip-

ture," Christian Scholars Review (Fall, 1971), 42-58.

    25 Graham A. D. Scott, "Abortion and the Incarnation," JETS, XVII,

I (Winter, 1974), 33-34.



MISCARRIAGE OR PREMATURE BIRTH                       117

 

serve a primary place in argumentation, as he has made it. In

this argument of silence the most that would be achieved would

be a "stand-off." One could just as easily argue that since there

is no prohibition of euthanisia, it too is acceptable (apart from

the theological issue of the soul). In reality, all the discussion

concerning the lack of lex talionis for the fetus does not apply,

since the passage does not deal with abortion, but premature

birth, as shall be demonstrated later. Though one might wonder

why the Mosaic legislation does not speak to the same issue as

does the Assyrian, Babylonian, and Hittite codes, even in view

of Scott's reply, a casuistic law, such as Exodus 21:22f, cannot

envisage all possibilities.26 In addition, one familiar with legal

literature of the Bible realizes that in many areas the laws of

Israel and those of the surrounding nations are not identical. On

the contrary, though the writer realizes the exception with Scott,

one could argue that the principle in foreign law was so common

that it need not be mentioned in the Mosaic law. Thus this line

of argument from silence is both perilous, unfruitful, and highly

speculative.

 

THE SIGNIFICANCE OF Nvsx

To whom does the Nvsx, refer in verse 22, and what kind of

"harm or injury" is to be understood? Montgomery argues that

Exodus 21:22-24 does not distinguish between the life of the

mother and the life of the child in meeting out punishment. The

Nvsx could be either to the mother or child, and if either one was

injured, lex talionis came into play. Cerling believes that "Waltke

gives an adequate answer to this interpretation [the immediately

preceding one] when he says that it is possible, but improbable,

and rejected by most translations and many commentators.”27

 

    26 The strong desire to maintain the family name in the Near East may

account for the rarity of abortion. Children, born and unborn, were appar-

ently held in high esteem, especially male children. Even child sacrifice,

which prima facie is total disregard for the young lives, may be seen, in

view of the sacredness of the event for the worshippers, as an offering

of their very best. The total lack of a case law on abortion or miscarriage

in Israel may he due to the concern for the family name making it un-

necessary. As well, it may be due to a Messianic consciousness, of Messiah

coming through a Jewish woman, making abortion, or the like, totally

unthinkable, and certainly needing no law to counteract it.

      27 Cerling, p. 51, footnote 50.

 



118                 WESTMINSTER THEOLOGICAL JOURNAL

 

This viewpoint, no doubt, is why the NASB translates the pas-

sage, "she has a miscarriage, yet there is no further injury, he

shall surely be fined as the woman's husband may demand of

him." Cottrell speaks pointedly to the issue:

 

    The second point I wish to defend is, as stated above, that

any injury to the child no less than to the mother would de-

mand the application of the lex talionis. That is, of course,

contrary to the popular understanding, in which verse 22

refers to a case in which the fetus is killed but no other harm

ensues, the death of the fetus being considered a minor injury

that deserves to be penalized only by a fine. According to this

view, then, verse 23 would be talking about some further harm

of a much more serious nature, i.e., an injury to the mother

herself. Only if the mother received injury would  ‘an eye for

an eye' be required, or `a life for a life.’28

 

To add other or further to the text is simply to miss the argu-

ment, and also not to understand the meaning of Nvsx.   The legis-

lation is to be understood as saying that if a pregnant woman is

injured so that her child is prematurely born, but no bodily

harm or injury takes place, the man liable to the charge must

pay a fine for his action. Cottrell states: "The fine presumably is

imposed because of the danger to which mother and child are

exposed and the parents’ distress in connection with the unnat-

urally premature birth."29 The Nvsx refers to either the mother

or the child as Keil fitly retorts to the alternate view:

   In a manner no less arbitrary Nvsx has been rendered by

Onkelos and the Rabbins xtvm, death, and the clause is made

to refer to the death of the mother alone, in opposition to the

penal sentence in vers. 23, 24, which not only demands life for

life, but eye for eye, etc., and therefore presupposes not death

alone, but injury done to particular members. The omission of

hl, also, apparently renders it impracticable to refer the words

to injury done to the woman alone.30

 

   28 Cottrell, p. 8.

   29 Ibid. Also Jackson, p. 296: ".. . the fact that the lives of the foetus

and the woman were endangered may be a sufficient reason for liability,"

and again, "The danger of stillbirth, regarded with horror in Biblical

times, may be another reason for the sanction."

   30 Keil and Delitzsch, p. 135, footnote 1. Also Jackson, p. 293:

". . . LXX and Philo preserve the meaning of the original, in that they

take aswn, both in v. 22 and in v. 23, to refer to the child. Moreover, the

reason why the unusual word aswn is here used now finds an explanation.

Had it referred to the woman, it would be impossible to understand why



MISCARRIAGE OR PREMATURE BIRTH                       119

 

Those who believe the passage deals with the paying of a fine

because of the miscarriage, and there not being any other harm

to the mother, encounter difficulty in that their interpretation

does not fit the meaning of Nvsx. BDB gives little help in under-

standing the word, giving "mischief, evil, harm" as the mean-

ing.31 The last term, "harm," has been followed by most.

Jackson says that the usage of the word outside this passage

gives no support for a minor injury to be understood in Exodus

21:22, 23: "According to this view, (minuor injury) aswn may

refer to any injury. It thus comprehends the loss of the foetus in

v. 22, the death of the mother in v. 23, and the whole range of

injuries listed in vv. 24-25. But the usage of the word elsewhere

provides no support for this." He then continues his discussion

noting the other occurrences of the word in the Old Testament,

in the Joseph story in Genesis. Three occurrences besides the

Exodus passage are in the Joseph story.  Jacob sent his son to

buy grain in Egypt but he did not send Benjamin lest harm

(Nvsx ) befall him (Gen. 42.4). Later when Joseph insisted that

Benjamin come to Egypt Jacob's reply was that some harm

might occur to Benjamin and so he would be in sorrow to the

grave (v. 38). This same plea was given by Jacob's sons before

their brother Joseph to the effect that their father would be in

lifelong mourning if harm occurred to their younger brother

Benjamin. Jackson then says that the harm Jacob anticipated as

possible for Benjamin was death and although the word does not

inevitably mean death it certainly would not apply to a trivial

injury: "Driver was correct in taking it to refer to ‘some serious,

or even fatal, bodily injury.'”32

 

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.

It is also avoided by the ancient Near Eastern sources."

    31 BDB, p. 62.

    32 Jackson, pp. 274-75. Jackson, though, has difficulty with the lex

ta.lionis that follows the 11::K: "But can all the injuries enumerated in vv.

24-25 be serious enough to constitute aswn? Loss of an eye, hand, or foot

may be conceded. More difficult are kewiyah, petza and haburah. But the

notion that loss of a tooth is as aswn is quite inconsistent with the mean-

of the word." Ibid., 274. His conclusion is based upon a partial word

study allowing too narrow a meaning for Nvsx, though for his part the

lexicons of Holladay and Koehler-Baumgartner define Nvsx as "mortal

accident," and "deathly accident." William L. Holliday, A Concise Hebrew

and Aramic Lexicon of the Old Testament (Grand Rapids: Wm. B. Eerd-



120                 WESTMINSTER THEOLOGICAL JOURNAL

 

Jackson should be tempered a little in his understanding of

Nvsx  in view of the rarity of the word. He surely demonstrates

that the word refers to severe or even fatal injury, but the text

in Exodus, the only other section of the Old Testament using

the word, could allow for Nvsx  to be applied to a lesser injury.

One may conclude that a fine was exacted on the liable person

because of either mental or physical discomfort he had caused.

If bodily harm (Nvsx) of any significant amount (eye, burn,

bruise, etc.) took place against the mother or child, the principle

of retaliation took over. As Cottrell concludes, "The text will

permit no other understanding."33

 

THE LEX TALIONIS

 

The lex talionis was the law of retaliation in the Ancient Near

Eastern legal codes. If an individual was injured or killed, the

same injury, or death, was to happen to the offender. In the

Assyrian stipulations, as seen previously, if one caused an abor-

tion on the part of a seignior's wife, then the wife of the one who

caused the other woman to have an abortion was caused to have

an abortion. Exactly the same kind of injury was required. "Life

for life, eye for eye, tooth for tooth," then was the lex talionis.

In the lex talionis of the Exodus passage, "life for life" was re-

quired for the death (fatal accident, Nvsx) of either child or

mother.34

Jackson has difficulty in understanding the entire statement

of lex talionis as referring to the Nvsx of verses 22, 23. The

referring of the "eye for eye, tooth for tooth," hardly could be

considered a mortal accident. One would have to see the harm

as a very general term, as seen in the Living Bible:

   If two men are fighting, and in the process hurt a pregnant

woman so that she has a miscarriage, but she lives, then the

 

mans, 1971), p. 23; Ludwig Koehler and Walter Baumgartner, Lexicon

in Veteris Testanicnti Libros (Leiden: E. J. Brill, 1958), p. 71.

    33 Cottrell, p. 9.

    34 Contra. J. K. Mikliszanski, "The Law of Retaliation and the Pen-

tateuch," JBL 66 (1947), 297: "But significative about this [the Ex

21:24-25 lex talionis] is that exactly when life is to be undoubtedly paid

with life the Pentateuch does not use the expression of 'life-for-life' but

says in unequivocal terms: ‘he shall surely be put to death’ (Ex. 21:12;

Lev. 24:17)."



MISCARRIAGE OR PREMATURE BIRTH                       121

 

man who injured her shall be fined whatever amount the

woman's husband shall demand, and as the judges approve.

But if any harm comes to the woman and she dies, he shall be

executed. If her eye is injured, injure his; if her tooth is

knocked out, knock out his; and so on--hand for hand, foot

for foot, burn for burn, wound for wound, lash for lash.

With the above translation, understanding the meaning of Nvsx

is obviously difficult. Jackson sees the law of retaliation in the

Exodus 21:24, 25 passage as an interpolation. This would solve

all the problems.35 There being no textual evidence against the

reading militates against the interpolation, unless one should

argue only from subjective, prejudicial opinion.

Mikliszanski presents a possible solution to the problem:

    Considered separately, the last two verses could rightly be

taken as meaning literally evil for evil, or lex talionis, accord-

ing to which the culprit is to suffer on his body the very same

injury he had inflicted on his victim. However, as stated

above, a written law must not be separated from its context.

In the quoted context ‘eye-for-eye’ is preceded by 'life-for-life,'

an expression that cannot mean penalty of death in view of the

fact that, whether the ‘mischief’ refers to the death of the un-

born child or of the woman, the killing was accidental ; the

Mosaic law does not require death for unintentional murder.

'Life-for-life' is not to be taken in its literal sense, but in the

sense of proper and full compensation; notwithstanding the

wording, the expression cannot literally be the lex talionis.

Hence there is no reason to believe that ‘eye for eye, tooth for

tooth, hand for hand,’ etc., uttered in the same connection, are

to be understood as implying real retaliation. Besides, the

provisions of blemish for blemish refer to accidentally injuring

a pregnant woman, and it would be against the spirit of the

Biblical code to assume that such unintentional injury be pun-

ished by corporal mutilation. The only possible way of resti-

tuting is to pay an indemnity, for as far as damages are

concerned, there is no difference between intentional or unin-

tentional acts.36

 

The suggestions of Mikliszanski could alleviate much of the

problem, but Ancient Near Eastern evidence seems to point out

that the kind of retaliation mentioned in the biblical text was not

unusual at all for that culture. The basic problem is to see the

verses containing the lex talionis as being both the concluding

of one idea and the introduction of others. The entire statement

 

   35 Jackson, p. 291.

   36 Mikliszanski, p. 296.



122                 WESTMINSTER THEOLOGICAL JOURNAL

 

of the lex talionis then would not be intended to refer to the pos-

sible fatal injury but a concatenation, a joining with what follows.

The difficulty with this view is the lack of smooth transition with

what follows.

When the mother or child received no injury, the liable person

was to pay a fine, according to what the husband would dictate,

and the judges would determine. Some have had doubts about

this portion of Scripture, even to the point of changing the

Hebrew word Myllpb to Mylpnb "for the miscarriage."37 Prob-

ably Morgenstern presents the best way to view this supposed

inconsistency:

 

    It goes without saying, of course, that this law never con-

templated that the husband could demand of the offending

party any sum of money or any other compensation that he

might desire, for then there could well be no limit to what he

might claim. Some method of regulation of the demand of the

husband, so that it might be kept within reasonable limits,

was absolutely indispensable; and just this must have been

provided for in the last two words of the sentence. Now among

the Bedouin, in cases of litigation such as this, where a fine

or damages must be paid by one party to another, this amount

may be fixed by the sheikh, or in extreme cases by the gady.

But not infrequently each party chooses an umpire to represent

him. Through the mutual discussion of these umpires, and by

a process of bargaining or of give and take, the matter is even-

tually settled and the size of the fine fixed.38

 

VALUE OF EXODUS 21:22-25 FOR THE

QUESTION OF ABORTION

One may see from what has been read thus far that the pas-

sage under discussion in Exodus does not concern induced abor-

tion, or miscarriage at all, but instead the purpose of its inclusion

is to protect the rights of a pregnant wife and her unborn child.

Both are seen as equal in value in the Mosaic casuistic legisla-

tion. Even though the weight of scholarly opinion favors an

alternate view of this text, as Cottrell put it, "The weight of

 

     37 J. Coert Rylaarsdam and J. Edgar Park, "The Book of Exodus,"

The Interpreters Bible, Vol. I (New York and Nashville: Abington

Press, 1952), p. 1000.

    38 Julian Morgenstern, "The Book of the Covenant, Part II," HUCA

7 (1930), p. 68, footnote 70. Contra. Jackson, pp. 277-78.



MISCARRIAGE OR PREMATURE BIRTH                       123

 

scholarly opinion . . . is outweighed by the text itself."39  The

text then gives no credence to abortion of the fetus but rather

reveals the sanctity of both adult and fetal life.

 

CONCLUSION

The various difficulties posed tip to this point concerning the

Nvsx and the lex talionis vanish when one views the passage as

presenting the situation envisioned in the following paraphrase

of Exodus 21:22-25:

 

    And if men struggle with each other and strike a woman

with child so that she has a premature birth, yet there is no

significant bodily injury, to the mother or child, he shall surely

be fined (in view of initiating the traumatic experience) as the

woman's husband may demand of him; and he shall pay as the

judges decide. But if there is a significant bodily injury to the

mother or child, then you shall appoint as a penalty, and

according to that which applies, life for life, eye for eye, tooth

for tooth, hand for hand, foot for foot, burn for burn, wound

for wound, bruise for bruise.

 

This study has presented the teaching of Exodus 21:22-25,

especially as it relates to the present controversy on abortion.

It has discovered that the passage does not deal with a miscar-

riage caused by the injury of a pregnant woman in a physical

struggle as is so often viewed. Instead the passage concerns a

woman who was struck in a struggle and so prematurely gave

birth. If there was no bodily injury resulting to the mother or

child because of the blow, the liable man was to pay a fine to the

woman's husband as he decreed and as it was judged fair by the

judges. If bodily injury did occur to the woman or her child,

lex talionis was enforced depending on the extent of the injury,

from life for life to bruise for bruise. The passage, then, gives no

support whatsoever to the legitimacy of abortion.

 

Longview, Texas

 

    39 Cottrell, p. 9.

 

This material is cited with gracious permission from:

            Westminster Theological Seminary

            Chestnut Hill

            Philadelphia,  PA   19118

            www.wts.edu

Please report any errors to Ted Hildebrandt at:  thildebrandt@gordon.edu