THE JUSTICE ENVISAGED IN Deuteronomy 19 seems to stand a considerable distance from the views that prevail in Western nations today.
With part of this text’s emphasis, most of us will find ourselves in substantial sympathy: the courts must not convict a person on meager evidence. In the days before powerful forensic tools, this almost always meant that multiple witnesses should be required (Deut. 19:15). Today the kind of evidence thought to be sufficient has expanded: fingerprints, blood-typing, and so forth. Most of us recognize that this is a good thing. But enough reports have circulated of evidence that has been tampered with that the concern of our text is scarcely out of date. Procedures and policies must be put in place that make it difficult to corrupt the court or convict an innocent person.
But the rest of the chapter (Deut. 19:16-21) seems, at first, somewhat alien to us, for three reasons. (1) If careful judges determine that some witness has perjured himself, then the judges are to impose on that person the penalty that would have been imposed on the defendant wrongfully charged: you are to “do to him as he intended to do to his brother” (Deut. 19:19). (2) The aim is “to purge the evil from among you” (Deut. 19:20). (3) Once again, the lex talionis (the “eye for an eye” statute) is repeated (Deut. 19:21; cf. Ex. 21:24, and the meditation for March 11).
All three points are looked at very differently in Western courts. (1) Punishment for malicious perjury is usually negligible. But this means there is little official effort to fan the flame of social passion for public justice. You lie if you can get away with it; the shame is only in getting caught. (2) Our penal theorists think incarceration serves to make society a safer place, or provides a venue for reform (therapeutic or otherwise), or ensures that an offender “pays his debt to society.” So much effort goes into analyzing the social conditions that play a contributing role in shaping a criminal that everywhere there is widespread reluctance to speak of the evil of a person or an act. Perhaps that is why revenge movies have to depict really astoundingly horrendous cruelty in one-dimensional monsters before the revenge can be justified. The Bible’s stance is truly radical (i.e., it goes to the radix, the root): judicially, the courts must purge out the evil among you. (3) We incarcerate; we rarely think about the justice of making a punishment “fit” the crime. But that was one of the functions of the lex talionis.
When one focuses on justice and personal accountability, it is our own judicial and penal system that seems increasingly misguided and alien.