“Lex Talionis” And The Human Fetus -- By: Meredith G. Kline
JETS 20:3 (September 1977) p. 193
“Lex Talionis” And The Human Fetus
The most significant thing about abortion legislation in Biblical law is that there is none. It was so unthinkable that an Israelite woman should desire an abortion that there was no need to mention this offense in the criminal code.
There is, however, one law in “the book of the covenant” (cf. Exod 24:7) that deals with a human fetus, and it has naturally received close scrutiny for the light it might shed on the critical question of the nature of the unborn child. This law, found in Exod 21:22–25, turns out to be perhaps the most decisive positive evidence in Scripture that the fetus is to be regarded as a living person. A quite different assessment of the matter is prevalent which alleges that this law assigns t.o the fetus a status of mere property, not that of a discrete living being. To some extent the prevalence of this view is due to the fact that the other major interpretation, the one that is usually advocated by the “pro-life” position in the current abortion controversy, fails to answer several of the key exegetical questions satisfactorily.
Undeniably, the passage is a Gordian knot formed by an intertwining of several exegetical problems entailing broad issues of legal principle and practice in the Bible. A better solution seems to be available, however, than has been provided in the exegesis presented by either of the opposing sides in the current dispute.1
In Exod 21:18–36 there is a series of laws concerned with cases of criminal negligence. The law in vv 22–25 concerns a brawl during which a pregnant woman, an innocent bystander, is struck and “her fruit depart(s) from her” (v 22a KJV). Two varieties of this basic situation are then distinguished, which we will call Case A and Case B. Each of these includes a protasis (v 22b and v 23a) depicting one or another consequence of the act described in v 22a and an apodosis (v 22c and vv 23b–25) giving the penalty. The protasis in Case A reads: “yet no mischief (ʾāsôn; RSV ‘harm’) follow” (KJV). In Case B the protasis reads: “if any mischief/harm follow.”
According to the interpr...
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