Why Dr. Flannagan Fails History, Dr. Hector Avalos Responds

Dr. Flannagan's use of sources shows some careless scholarship.

Dr. Matt Flannagan, of the MandM blog, has directed a few criticism at my chapters (“Yahweh is A Moral Monster” and “Atheism was not the Cause of the Holocaust”) in The Christian Delusion. Those criticisms rest not only on a basic misunderstanding and misreading of my arguments, but also on a very selective and uncritical reading of the sources Flannagan cites for support.

See: FlannaganReview

In my chapter, “Yahweh is a Moral Monster,” I critiqued Paul’s Copan claim that lex talionis in the Bible represented a moral advance compared to other Near Eastern cultures. I countered that Copan was using the word “advancement” arbitrarily because:

A. If lex talionis represents an advancement, then we already found it in pre-biblical laws (e.g., Code of Hammurabi);

B. If replacing lex talionis with fines or sacrifices was an advancement, then the Hittite Code had done that prior to biblical law.

Within the scope of that argument I addressed the following claim by Copan that it was a biblical advance to eliminate legal punitive mutilation:

“Our interlocutor might ask: What about Scripture's emphasis on lex talionis-an eye for an eye and a tooth for a tooth? Is this not a brutal retribution? First, an investigation of the Pentateuch's lex talionis texts (Exod. 21:23-5; Lev. 24:17-22; Deut. 19:16-21) reveals that, except for capital punishment ("life for life"), these are not taken literally. None of the examples illustrating "an eye for an eye" calls for bodily mutilation, but rather just (monetary) compensation.”

I contend that Copan provides no sound evidence for his claim that none of the biblical laws he cited (except life for life) were taken literally or don’t call for bodily mutilation, but rather demand just monetary compensation.

According to Flannagan, Raymond Westbrook, the Near Eastern legal expert whom I cited in connection with another argument, agrees with Copan. Flannagan states:

In fact, Westbrook has defended Copan’s position on the lex talionis [“The Character of Ancient Near Eastern Law” in A History of Ancient Near Eastern Law (Boston: Brill Academic Publishers, 2003) 74].”

First, Flannagan offers no actual quote to support this allegation so that we can verify whether he is even reading Westbrook correctly.

Westbrook has made himself quite clear in Everyday Law in Biblical Israel: An Introduction [Louisville: Westminster/John Knox Press, 2009], pp. 78-79). Therein he discusses how later Rabbinic literature, and specifically Mekhiltah Neziqin 8 to Exodus 21:24, claimed that “An eye for an eye’ [means] money.”

Westbrook comments: “This interpretation seems strained to a modern reader. The introduction to the formula in Leviticus 24:19 is unequivocal: "If anyone maims a fellow, as he had done so shall it be done to him.”

Westbrook does argue that instances of replacing lex talionis with monetary fines in later rabbinic literature may have had some historical precedent, but that is because Westbrook is citing as precedents some of the Near Eastern laws that Copan treats as inferior.

In any case, Westbrook is not arguing that the biblical laws of lex talionis NEVER were taken literally, which is the claim from Copan that I was addressing (with the exception of life for a life).

In countering Copan’s claim that biblical laws of lex talionis were never taken literally, I cited the words of Jesus in Matthew 5:38-39 (RSV): “[38]You have heard that it was said, ‘An eye for an eye and a tooth for a tooth.’ [39] But I say to you, Do not resist one who is evil. But if any one strikes you on the right cheek, turn to him the other also.”

I argued that Jesus seems to take lex talionis literally, as it makes little sense to interpret that passage to mean that Jesus was just doing away with monetary fines.

Flannagan responded: “Further, Avalos contends that Jesus took the lex talionis literally in Matt 5:38-39, a position refuted by David Daube [The New Testament and Rabbinic Judaism (London: Athlone Press, 1956) 256].”

This is mere assertion on the part of Flannagan, and represents a completely uncritical and selective reading of Daube. Daube does, in fact, argue that lex talionis in Jewish law at the time of Jesus meant monetary compensation.

However, Flannagan never critically evaluates the primary sources that Daube cites for support. Note this statement by Daube (p. 256):

“Not a single instance of the practice of retaliation is mentioned in the sources. Both Mishna and Mekhilta reject any literal interpretation of an ‘Eye for an eye’ and lay down that the wrongdoer has to pay damages.”

But both the Mishna and Mekhilta date some two hundred years or more after Jesus, and so do not provide definitive evidence for the practices at the time of Jesus. Flannagan is particularly oblivious to his own criticism (addressed below) that I cited Innocent III to support a practice that occurred 112 years earlier.

Moreover, Flannagan does not tell readers that Daube retreats from his statement that “not a single instance...is mentioned in the sources.”

Yes, Daube himself cites the fact that there were contrary opinions given in rabbinic sources, and Daube mentions specifically that “[a] group of Sadducees, the Boethusaeans, seem to have been in favor of actual retaliation and their attitude was shared by at least one Talmudic authority, Rabbi Eliezer.”

What Daube tells us next is sheer speculation: “It is, however, doubtful whether this doctrine represents a genuine survival of ancient legal ideas; it may well have been a revival due to the Sadducean theory that the Bible ought to be interpreted quite literally...”

But Daube provides no evidence to decide whether it is a “survival” or a “revival.” He merely speculates here. Moreover, even a “revival” would contradict Copan’s view that those laws were NEVER taken literally.

Flannagan also does not mention that Daube knows that Josephus, who is a source dated to the first century, seems to understand Exodus 21:24 and Leviticus 24:19 as allowing actual bodily mutilation. Note Josephus’ own words:

“He that maimeth a man shall undergo the like, being deprived of that limb whereof he deprived the other, unless indeed the maimed man be willing to accept money” (Antiquities 4.280; Loeb Classical Series).

Daube offers no reason for dismissing this as a Jewish understanding of Exodus in the first century, except that he thinks Josephus has been influenced the Roman laws known as the Twelve Tables.

But, as Daube himself notes, these laws were out of date by the time of Josephus. Daube can only speculate that, as a lawyer, Josephus might have known them. Given Josephus' wording, it is possible. But even if there were influence from the Twelve Tables, it shows that Josephus thought biblical law allowed mutilation.

Otherwise, Daube’s dismissal of Josephus as evidence for Jewish law in the first century is circular:

A. Josephus does not represent Jewish Law in the first century because
B. The main representation of Jewish Law is later Rabbinic literature;
C. Later Rabbinic literature represents Jewish Law in the first century because Josephus does not represent Jewish Law in the first century.

In any case, there is sufficient evidence to refute the contention that lex talionis was never understood literally, even at the time of Jesus. Flannagan simply fails to give readers any critical evaluation of the sources, and fails to mention that Daube does not necessarily support Copan’s view that the Pentateuchal laws were never interpreted literally BEFORE Jesus.

As it is, Flannagan might need to update his Copan readings. On page 121 of Is God A Moral Monster: Making Sense of the Old Testament (Grand Rapids, MI: Baker Books, 2011), Copan reluctantly admits that Deuteronomy 25:11-12 might be “the only biblical instance of punishment by mutilation.”

In that case a woman’s hand is to be cut off not because she cut someone else’s hand, but because she seized the testicles of a man fighting with her husband in order to save her husband.

So now Copan has gone from arguing that the Bible represented an advance over other cultures that practiced legal mutilation to making a case for the Bible’s superiority because it might have ONLY ONE case of mutilation for a poor woman helping to save her husband. What a magnificent improvement.

In explaining the Christian roots of the Nazi Holocaust, I provided the example of the anti-Jewish pogroms of 1096 to show that such actions by Christian laypersons did not need Darwinism as a motive. I explained that the motive could have been provided by the anti-Jewish papal rhetoric that was pervasive in Medieval times. Here is how I phrased it:

“On the other hand, the laity may have acted the way they did because of words such as those of Pope Innocent III, who on October 9, 1208, issued the following announcement concerning heretics and Jews to Philip II Augustus, the king of France: ‘In order that the Holy Church of God, arrayed like a fearful battlefront, may proceed against its cruelest enemies, to exterminate [ad exterminandum] the followers of wicked heresy, which like a serpent or an ulcer, has infected the entire province, we have caused garrisons of Christian soldiers to be called together . .’ Notice that, even if not always carried out literally, the idea of exterminating groups of people (heretics, Jews) is already there, as is the use of medicalized genocidal language ('ulcer . . . infected') also common to Nazism.”

Flannagan thinks I somehow misread my own chronology because he interprets me as saying that the laypeople of 1096 were directly influenced by a papal pronouncement in 1208, given 112 years later. He calls this a “howler.”

Apparently, Flannagan, in a hasty attempt to score some points, interprets the phrase “words SUCH AS THOSE of Pope Innocent III” to mean the same as “the words of Pope Innocent III.”

The fact that I cited the dates plainly suggests that I don’t mean the latter. Rather, I was speaking more generally of the effects of Medieval papal views on the Jews, of which Innocent III was one example. I also cited Innocent III to draw a moral equivalent to views of the Nazis. If Flannagan had read more carefully and was not selective in his quotations of my chapter, he might have noted what I said on p. 380:

“Otherwise, D’Souza would have to explain why Pope Innocent III was right to say God wanted him to exterminate Jews or heretics in the Middle Ages, but God would not have wanted the same thing for Hitler in the twentieth century.

Besides, I am not sure why Flannagan, who thinks later rabbinic literature can represent views found hundreds of years earlier, would prohibit the views of Innocent III from existing 112 years earlier.

My chapter on the Holocaust explained how the anti-Judaism of Nazi Christianity can be traced back all the way to the New Testament. Thus, we don’t need Darwinism to explain that anti-Judaism.

But Flannagan takes me to mean that somehow I accept later and distorted interpretations of Christianity (such as those of the Nazis) as a form of Christianity, but I don’t accept later and distorted interpretations of Darwin as instances of Darwinism.

Actually, he has my argument a bit backward. My argument is that the anti-Judaism in Nazism is NOT some later distorted version of Christianity, but rather goes back to Jesus himself, as portrayed in John 8:44 among other places. I note specifically (p. 378 of The Christian Delusion) that this verse was posted on Nazi road signs, while none of Darwin’s words were ever used that way.

There is no equivalent passage from Darwin that I am alleging the Nazis are distorting or misinterpreting to be the words of Darwin, and so I am not sure why Flannagan even draws this analogy in the first place.

Flannagan’s criticisms of my chapters do not withstand scrutiny once one actually reads the sources he cites. As it is, he does not provide exact quotes from Westbrook or Daube that would allow us to evaluate how accurately he is representing his sources.

Flannagan’s criticisms, for the most part, focused on specific items that did not refute the larger theses I put forth: 1) Copan’s claims about biblical advances are faulty or misleading, and 2) We don’t need Darwinism to explain the holocaust because many of the major features of Nazi anti-Judaism can be found before Darwin in Christian theology and history, starting with the New Testament.

I hope Dr. Flannagan can do more homework and present a more cogent challenge the next time he decides to write a critique at a professional level.

1. Where does Westbrook say that the biblical laws of lex talionis in the Pentateuch were never taken literally? If so, what was his evidence?

2. Do you regard Josephus as a witness to Jewish law in the first century?

3. How did Daube decide what was a survival versus a revival in rabbinic law of lex talionis at the time of Jesus?

4. Do you deem it an ethical advance to cut off a woman’s hand for seizing the testicles of her husband’s opponent? If so, why?