Restitution in Biblical Justice
Podcast: Axe to the Root
“So, if there are no prisons, how do we deal with these lesser crimes?”
Gary North, Tools of Dominion
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Welcome to Episode 27 of Axe to the Root Podcast, part of the War Room Productions, I am Bo Marinov, and for the next 20 minutes we will be talking about Biblical punishment for certain crimes. Not for all crimes, although, I know, a thorough study of Biblical punishments will have to include a comprehensive study of the Biblical justice and its practical measures in the society and in the courts – I need to emphasize this, in the society and in the courts, for Biblical justice is not always through the courts, it always starts from the individuals and the family. We will focus on a limited segment of crimes, those that have to do with destruction of economic value in one way or another. We will show how our modern pagan, barbaric civil government deals with these crimes – if it deals at all – and we will see what Biblical justice for such crimes is. We will certainly not be able to cover all of it for the short time of 20 minutes, but at least, on this issue we have a good deal of literature where we can go and learn what the Biblical view on it is. So, for those of you who have never been exposed to concrete Biblical solutions to issues of justice, let this episode serve only as an appetizer, and open your mind to further education in Biblical justice and righteousness. And hopefully, to practical solutions in your particular area of influence and work and political participation.
A question was raised by a couple of listeners about a previous episode of Axe to the Root, the one about the prison-industrial complex. They got the impression that what I am advocating, ultimately, is the abolition of the prison system – just as I am advocating for the abolition of police and other executive functions of the civil government. That impression is perfectly correct. The Law of God mandates no prison system, and in fact, the very nature of civil government as commanded by God forbids the existence of such an institution. Israel had no jails and no prisons, even as as the Kingdom of Judah in Jeremiah’s time, for all the idolatrous and pagan practices and injustice introduced by Israel’s leaders, she still had no jails nor prisons. We know it because when the government needed to stop Jeremiah from preaching, they had no place to lock him up so they had to throw him in an unused water cistern (Jer. 38). Prisons and jails were a pagan practice, and they were completely contrary to God’s system of justice and social order. As a matter of fact, originally, the American colonies and the early Republic had no prisons nor jails; the introduction of prisons and jails came later, as the secular humanism of the Enlightenment took over the civil government in the United States. Modern Christians and conservatives in general who support the existence of a prison system are at best schizophrenic, not to mention perhaps hypocritical and evil; there is nothing remotely Christian or conservative in the existence of prisons and jails.
The question of a few of my listeners, then, was, “How do we deal with some crimes, then?” Obviously, we know that certain crimes should not be punished with prison but they should get the death penalty: murder, rape, kidnapping. But what about theft? What about injury, like getting in a brawl and knocking off someone’s tooth or other permanent or temporary injuries? What about destruction of property or damages to property and body due to carelessness or criminal negligence? What about all these cases where the crime is serious but as grave as to require the death penalty? We can’t declare the same penalty – death – to all the crimes, that would be a violation of the Biblical principle that the punishment should fit the crime; otherwise, if every crime meets the same penalty, a simple thief would be encouraged to turn into a murderer if that helps him to not get caught, for the change from a lesser to a greater crime won’t change his verdict in court. So, if there are no prisons, how do we deal with these lesser crimes?
One listener even suggested that I advocate the Shariah solution to theft, cutting off the right hand of the thief; he couldn’t see a third way between the injustice of prison time and the injustice of mutilation. So, her conclusion was, unless we want to fall into the barbarity of Islam, we should accept the supposedly “civilized” solution of “removing the thief from the society for the purpose of correction.”
This is, of course, the central mantra of the modern humanistic social order in respect to prisons: They serve the double purpose of removing the criminal from the society and his moral correction. The assumption, of course is, that a thief should be removed from the society – just like a murderer – and then put in a society of other thieves, and murderers, as well, in order to be corrected. This is the self-claim to divinity of the modern state: it claims it can achieve moral correction of men by controlling their environment; and then, of course, to make it even more absurd, that environment is not the environment of morally upright men engaged in productive activity, but the environment of proven criminals forced to live an unproductive, purposeless, useless lives. Surely, the state must be that powerful god walking on earth who can perform miracles with the souls of men. But then, we are not surprised that modern governments have that idea about themselves, right? After all, it is not just the prison system; everything modern governments do is the product of the same self-deification: government schools, police, welfare, economic regulations, zoning laws, etc., they are all based on the idea that the government is a god walking on earth, and therefore can do everything God in the Bible claims He does. It’s just modern government do it better, of course.
It should be obvious, of course, that removing a thief from the productive life of the society, and from the company of upright men, and placing him in the company of other criminals, in a state or purposelessness, won’t achieve anything – only blind worshipers of the state can imagine such policy would produce of moral “correction” of any sort whatsoever; except for making a murder out of a thief, perhaps. It should be even more obvious, even before we know the solution to such crimes yet, that the society is left in an even worse condition when a thief is thrown in prison. Even if we imagine that there are no corporate interests in the prison system; even if we ignore the known fact that private companies profit from incarceration; even if imagine that there is no economic benefit for anyone – and therefore there is no political pressure for higher levels of incarceration – it is still obvious that even if we take the prison system at its imaginary perfect and most idealistic state, one of the parties of the crime is always worse off: the victim of the crime. Under the mercies of the pagan justice system, the victim first suffers being robbed by the thief; then when the thief is sentenced to prison, the victim suffers again in being robbed by the greater thief – the government – to provide support for the prison system in which the government keeps the thief. In the end, society as a whole loses, the victim loses, the criminal is not given the chance to be restored in the society; the only class of people who gain are the government bureaucrats and the private companies who get paid per inmate.
There is a reason for it, of course. Under the pagan worldview, and under the pagan theory of crime and justice, the real victim of crime is the state, not the private victim. Thus, the state is the one prosecuting the thief – even if the thief has committed his crime against a private victim – and it is the state that requires satisfaction to itself, the private victim be damned. Every pagan worldview is inevitably collectivist and by default denies the legal reality or even the moral existence of the individual – even if it pays a lip service to it. Thus, we should not be surprised that in a pagan legal system, the individual victim eventually takes a double hit, while the individual criminal is locked up and not allowed to learn and follow more moral and productive ways. It is only the government that profits from the crime, simply because it is the government that is the only acting agent in the society. The government is god.
What is, then, the Biblical view and therefore the Biblical solution to such crimes?
The first thing we need to lay down about Biblical justice is that in any crime, the civil government is not a party. In fact, the Law of God doesn’t recognize such an entity at all. Civil government, as an institution, is limited to the person of the judge in the court, who is also the ruler mentioned in Romans 13. It is not acknowledged in the Bible as a collective entity which has legal or social personality or existence outside the personality or existence of the judge. You will not find in the Bible any mention of the “government” as a collective entity as you find mention of the church (Matt. 18:17) or the family (Eph. 3:15). The government is only in the person of the judge – or of the king, as the supreme judge, not as executive power.
Thus, in the Biblical Law, there can be no such thing as a crime against the government; the crimes are always individuals against individuals. On one side of the line is the criminal, no matter what organization he is part of, and on the other side is the victim. The case is brought against the criminal by the victim, and it is the victim who needs to receive satisfaction.
But what is that satisfaction when it comes to lesser crimes like theft or criminal negligence or injury? Obviously, it can’t be prison, for, as we already saw, it is only an additional burden, a second robbing of the victim. It doesn’t right any wrongs, it is doubling the wrong, by adding the state to the number of criminals. It is an action in the wrong direction. The Biblical direction, instead, is in compensating the victim, first, and then, second, inflicting on the criminal the same punishment he wanted to inflict on his victim. The victim, thus, is restored, and the criminal, by being punished, discouraged from future crimes.
Thus, the general Biblical punishment for the crime of theft is double, or 200% restitution: Exodus 22:7and other verses point to it. A man, for example, steals a car and later is caught, taken to court, and convicted on the words of at least two or three witnesses, once convicted, the punishment is not prison, nor payment to the state. The punishment is payment to the victim to the value of two such cars as the stolen one. The victim is then compensated, both for the lost car and for the psychological inconvenience and perhaps also the cost for investigation. The criminal is worse off than before, by the same degree of loss he wanted to inflict on another, following the Biblical principle of “an eye for an eye, a tooth for a tooth.” But even more than just punishment or restitution: there is true restoration: the victim is restored to wealth, and the criminal is restored to his full status in the society. Once he has paid double for his crime, he is again a free person, and he can start h is life over, without any previous criminal guilt. The Law of God, thus, is concerned with restoration more than anything else; punishment – except for certain crimes which allow for no restoration, as murder or rape or kidnapping – has the secondary and final purpose to restore the criminal back to a state of integrity and freedom. “Go and sin no more.”
The problem modern readers of the Law of God would see here is this: What if the criminal has spent the stolen money and has no assets to be confiscated for restitution?
The answer to this is in Exodus 22:3: “If he owns nothing, he shall be sold for his theft.”
The Law of God prohibits permanent, chattel slavery. The slavery of the antiquity would have fallen under the prohibition of kidnapping – after all, a person can’t be made a slave unless he is deprived of his liberty, which is the definition for kidnapping. But the Law mandated a different kind of slavery or servitude: slavery for meeting economic obligations. A man could be sold in slavery for not repaying his debt: for members of Israel, such slavery was to be limited to 7 years (which was an incentive for foreign slaves to become believers and be circumcised). But there was a slavery which was not limited in time, and that was the slavery for restitution: if a criminal had to repay a debt incurred on him by the court, for his crimes. So, if a criminal has no assets to pay double restitution (possibly because he has spent them, or perhaps because he has hidden the stolen goods), he should be offered for sale as a slave, for the outstanding amount. If a business owner is willing to take him and pay for it, the proceeds must go to the victim, and the criminal himself is forced to work for his payment at a negotiated wage, until he repays his new owner.
Such a solution is difficult for modern readers to comprehend – after all, we are done with slavery, aren’t we? Slavery is a thing of the past, isn’t it? How can we ever call for the restoration of slavery; we can’t allow slavery to raise its ugly head again, right?
Wrong. Slavery has never left our civilization. What we abolished in the past was private, economic slavery; the slavery of one individual to another for economic purposes. In most cases in history, whether chattel slavery or indentured servitude were private, as part of private economic transactions and undertakings. That slavery is gone, but only to be replaced with government slavery; that is, slavery to the civil government, in many more uneconomic forms, as part not of economic activity and productivity, but as part of executive policies. That slavery today is called . . . prison. Those today who argue against the restoration of Biblical slavery to make restitution to the victims, are the same who support government slavery where restitution is paid to the state and its cronies. Slavery, thus, has not departed from our civilization; it has only adopted a different form, following our modern deification of the state as the ultimate victim of all crime.
Thus, the Biblical solution to theft really doesn’t call for a restoration of slavery; it calls for the abandonment of the statist idolatry; slavery is still here, and still the same. The Law of God mandates that we change the God of our justice system.
Some may claim that there is a special kind of restitution in the Bible, namely four-fold and five-fold, as in Exodus 22:1, “If a man steals an ox or a sheep and slaughters it or sells it, he shall pay five oxen for the ox and four sheep for the sheep.” While it may be tempting to decide that this is the general principle, it is not supported by other verses in the Bible. This verse rather establishes a special kind of protection of sheep and oxen, and such protection is more ceremonial than ethical/judicial. God threatened special sanctions for the theft of these animals because they were symbolic in the Temple worship; sheep and oxen signified certain realities. Such a law, then, would be one of the “shadows” of the Old Testament economy, and should be taken to be a permanent part of the Law in the NT.
Another kind of restitution, though, is more important to us: the one-fifth, or 120%, restitution. Leviticus 6:1-6 and Numbers 5:6-7 speak about it; both passages connect the one-fifth restitution to a voluntary confession of crime. In other words, if the criminal didn’t wait to be caught by the investigators and drawn to court, he could lower his liability by confessing the crime and agreeing to do a 120% restitution. (As a side note, the requirement for two or three witnesses precluded any conviction based on self-incrimination or confession; thus the Bible protected suspects from torture or other means to forced self-incrimination.) The crime was committed so he was still liable to pay penalty. But he was rewarded with a lower penalty for taking the step of saving the society the expenses for investigation and court procedures. The victim was compensated fully, plus 20%, and both were restored to full status in the society.
Another category of crimes that required restitution were body injury and specifically mutilation. The exegesis of this part is rather lengthy for a short episode, but Gary North has developed it in his economic commentary on the case laws of Exodus 21-40, previously titled Tools of Dominion. To make a concise summary of his conclusions, the Law of God provided two options when a bodily injury was inflicted: one was a corresponding bodily injury on the criminal, the other was an economic payment which would satisfy both the victim for his economic loss in both medical treatment and in lost productivity (remember, a one-eyed or one-armed man is less economically productive than a man whose eyes and arms are in place). Despite the prominence of the principle “eye for eye” in the Law, we have not a single example in the Bible of meeting out the physical punishment; apparently, in all cases, the victim preferred the economic payment. Such payment was also due when the injury or even death (the payment was made to the family) were not intentional. Restitution was also owed when a slave was killed (Deut. 21:32, for example). This has been a propaganda point for many atheists (“look, the Bible considers the slaves less than human!”) but this law had again a very firm foundation in the principle of restitution and restoration. It had nothing to do with the human value of the slave, it had to do with the Biblical concept of slavery. The slave could be a slave only if he was repaying some form of debt, and therefore the mere execution of the murderer would have left him without restitution. The amount of payment was not small, and thus, the murderer risked to be turned into a slave himself, and himself experience the hardship of servitude.
This economic restitution for injury was designed, obviously, to keep the society productive. While the proper principled response to bodily injury should be a corresponding bodily injury, the society can’t profit from it. Thus, God allows for redemption to be made, a payment to make it all good, and at least to a certain extent restore the functionality of the society without a loss of productivity.
And the last main category of crimes that required restitution was the intentional or unintentional destruction of property. When a person destroyed the crops of his neighbor by starting a fire on his own property, he was supposed to restore to his neighbor the corresponding amount from his best crops. If he took his neighbor’s goods under his stewardship, he was liable for the loss of these goods – and, if criminal negligence could be proven, he was liable to a double payment, as in the case of theft. If he allowed his ox to roam freely and injure another person’s ox, he was to pay the price for it. Etc., etc.
Restitution was also owed for certain infractions against the Temple as well, like failure to keep one’s oaths. I am not sure if that today would translate in certain restitution to the institutional church – my instinct tells me it shouldn’t, for the church is not an heir of the Temple but of the synagogue. But this is an issue for another topic and another episode whatsoever.
These three categories of crimes and violations are a significant part of all crimes that would be committed in any society. Murder and kidnapping would be minimal in any society that follows the Law of God (because of the death penalty attached). While we can’t expect that crime can be completely exterminated in any society, we can safely predict that in a righteous and just society it could be brought down to manageable levels, and to the majority of crimes being lesser, economic crimes. Many of these crimes, of course, would be violations that are rather unintentional; still damaging to health and destructive to property, perhaps, but not grave enough to warrant capital punishment. Since such crimes wouldn’t have a permanently destructive effect on the society, God’s system of justice in His Law provided for true restoration in the form of restitution to the victim. And, at the same time, true restoration for the criminal, for after making his restitution, he would be a free man again, free of any guilt before the society. (Although, he could still have guilt before God.) Social peace would be preserved, and the state wouldn’t be able to accumulate the wealth to become large and tyrannical and self-deifying. The victims, and the true covenant representatives of God in the court trials, would have bean satisfied, and God, the ultimate victim of all crime, would have been satisfied. And He would pour His blessings on such a society which keeps His standards for justice.
Thus, our modern system of prison punishment for theft and other lesser crimes is not only un-Biblical, it is very self-consciously idolatrous. Those pastors and church-goers who support its existence – just like those who support the existence of executive government and of police – are no different than those who twist the concept marriage to include “sodomite marriage.” It is all idolatry, designed to opposed the Gospel and the Law of God.
Throughout the United States, individual judges here and there have seen the injustice in the current system and have tried a supposedly “novel” approach: restitution. Quite a few petty criminals have also offered to make restitution instead of being sent to jail. But in most places, the justice system is in stark rebellion against the Law of God. In a recent case in Louisiana, a homeless man entered a bank with a fake gun in his hands and demanded all the money in the cash register. There wasn’t much money, and he walked out with $150. An hour later he regretted it and returned to the bank, offering back the money. The bank manager – the true victim – took it back and refused to file a complaint. The local cops, though, took the man to court, and the judge sentenced him to 20 years in prison. The Biblical penalty would be restitution of $150 plus 20%. In the final account, the bank lost, and the homeless man lost, while government cronies will receive tax money by having that man in their prisons, for 20 years. Justice was defeated in that case.
Justice should be preached from our pulpits today. And the Biblical principle of restitution and restoration should be an integral part of our preaching. Where the churches fail to preach that, and fail to speak prophetically to the state, encouraging and leading their flocks to restore justice in the land, Gods will eventually intervene to restore it. And He is not to be mocked, and His intervention won’t be polite and nice.
For reading this week, I will assign Gary North’s economic commentary on the case laws of Exodus 21-40, formerly known as Tools of Dominion. It is a rather fat book, but you can read it one bit at a time. Pay attention to the principle of restitution, and to the concept of restoration in Biblical Law. A return to these principles will be our key to restoring justice in the land. Nothing else will suffice.
And again, help me deliver the message of this justice to Eastern Europe, where such justice has been denied for much longer than in the US. Visit BulgarianReformation.com. Subscribe to our newsletter, and donate. There’s a world to be conquered; and some battlefields are ripe for victory, at a very low cost. God bless you all.