Writings: Unpublished

The End of Sacrifice

John Howard Yoder's Perspective on Capital Punishment

Presented at the Christian Scholars Conference in Malibu, CA

Author: John C. Nugent

06/14/11+ Share

This essay introduces the basic contours of Yoder's perspective on capital punishment by showcasing his careful biblical exegesis and penetrating cultural analysis. Yoder's core argument is that capital punishment is ritual/cultic practice that accomplishes an important function in society, that the death of Christ has fulfilled that function, and that Christians have a responsibility to proclaim Christ's work and its implications.

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[Note: the current version of this document lacks adequate footnoting. This is because the pagination has not yet been finalized for the compendium of Yoder's works on capital punishment that this essay encapsulates, The End of Sacrifice. This file will be updated as soon as the pagination is set.]

John Howard Yoder engaged the topic of capital punishment throughout his prolific literary career. He began publishing on it in 1959 and continued exploring and articulating his position until his death in 1997.1 Over the course of these four decades we see no significant change in his position, although he deepens and broadens it at points. Central to this position is Yoder's conviction that both biblically and culturally, from ancient society until today, capital punishment is an inherently cultic or ritual practice.2 As such, it is a practice that finds its teleological and chronological end in Jesus Christ. Teleologically, Jesus' death fulfills the ultimate purpose (telos, or end) that the death penalty first served: to atone for the "cosmic,

1 Yoder's first published piece was "The Death Penalty," in The Mennonite (Nov 1959): 724-25. His last piece was an unpublished addendum in 1997 to a work he published online through Shalom Desktop publications, titled "You Have It Coming: Good Punishment. The Legitimate Social Function of Punitive Behavior" (1995). These essays, as well as Yoder's other works on this topic, have been edited and assembled into one volume that is scheduled to be published in Fall, 2011: The End of Sacrifice: The Capital Punishment Writings of John Howard Yoder, ed. John C. Nugent (Scottdale, PA: Herald Press). The introduction to this essay draws upon my introduction to this book.

2 This is why Yoder's final work on capital punishment, an engagement of the cultural role of punishment (ch. 5 of The End of Sacrifice), is not merely tangential to Yoder's project. By unmasking the sacrificial component of the public practice of capital punishment, Yoder is calling Christians to own up to their core theological commitment to the finality of Christ's sacrifice to atone for sin.

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ritual, religious evil" of taking the life of a fellow human who was created in God's image (Gen 9:6).3 Chronologically, Jesus' death strictly forbids and therefore terminates all future blood-letting in order to atone for sin (Heb 9:26-28).4

Yoder does not presume to be original in asserting the implications of Christ's death for the death penalty; he credits Karl Barth for expressing similar sentiments.5 Nonetheless, Yoder brings a level of hermeneutical sophistication and interdisciplinary awareness to this topic that provokes fresh insight and casts due suspicion on long held positions. In so doing he models a way in which believers may remain faithful to Christ's lordship without ignoring the fact of the world's rebellion, and he demonstrates both why liberal approaches to the abolition of capital punishment have failed and why adherence to specific Christian convictions remains the most promising and relevant alternative. The aim of this essay is to introduce the basic contours of Yoder's perspective on capital punishment by showcasing his careful biblical exegesis and penetrating cultural analysis.

A Biblical Case against Capital Punishment

No biblical case, whether for or against capital punishment, stands without a specific hermeneutic and a particular way of understanding how the Old and New Testaments relate to one another. Some capital punishment advocates accentuate the continuity between the

3 See ch. 4, part 3, of The End of Sacrifice (pagination not yet available).

4 During a dissertation defense at which I was present, Richard Mouw once quipped that Yoder had no theology of atonement, by which he meant no notion that the cross did anything to deal with human sin. Despite knowing Yoder quite well, having written and even traveled with him, Mouw seems to have assumed this because so many of Yoder's writings focus on showing that Christ's death means more than simply atonement for sin. It also means, for example, an end to enmity between Jews and Gentiles and victory over the powers and principalities. This is typical of Yoder's work. He paid more attention to neglected matters in theology than to those that have received adequate treatment. The publication of The End of Sacrifice should put to rest the notion that Yoder had no theology of atonement.

5 See ch. 4, part 3, of The End of Sacrifice (pagination not yet available).

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testaments in an effort to build their case with Old Testament passages that seem to require it. Some opponents of capital punishment accentuate the discontinuity in order to brush aside such passages as irrelevant. Still others bracket one part of the Old Testament witness, the Mosaic covenant, and base their case for capital punishment on another part, the covenant with Noah. The latter they deem as timelessly relevant, the former as pertinent only to Israelites who were bound to the Old Covenant.

Yoder rejects all three of the above approaches. Elsewhere, I discuss his "canonical-directional" hermeneutic at length, so I will not repeat that here.6 Let it suffice to say that Yoder engaged the final form of the canon in directional fashion, which means that he accentuated the continuity between the testaments and that he did so not by reading New Testament insights back into the Old Testament, but by reading the Old Testament as a narrative that unfolds in the direction of its New Testament fulfillment. What God was doing in the world and through his people in Genesis is simply an earlier stage in the same movement that culminates in the Gospels and finds its consummation in the return of Christ and restoration of the cosmos. Furthermore, Yoder emphasizes that in the New Testament witness to Jesus we have the most complete revelation of God--the God of creation, the flood, and the Old Covenant-that we first encounter in Genesis. This being the case, Scripture is not a compendium of competing ethical codes, but the gradual formation of a people that faithfully embodies the ethics of its creator as revealed in Jesus. For the topic of capital punishment in particular, this means that we must read the New

6 John C. Nugent, The Politics of Yahweh, Theopolitical Visions Series (Eugene, OR: Cascade Books), scheduled for release in Fall, 2011; and "The Politics of YHWH: John Howard Yoder's Old Testament Narration and Its Implications for Social Ethics," Journal of Religious Ethics 39.1 (Mar 2011): 71-99, available online at http://onlinelibrary.wiley.com/doi/10.1111/j.1467-9795.2010.00466.x/pdf [accessed June 13, 2011].

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Testament as if it is completing the movement of the Old and the Old Testament as if it is paving the way for the New.

Yoder's biblical case for capital punishment begins with what is perhaps the most critical text in the debate, which is God's postdiluvian pronouncement to Noah in Genesis 9:5-6: "For your own lifeblood I will surely require a reckoning: from every animal I will require it and from human beings, each one for the blood of another, I will require a reckoning for human life. Whoever sheds the blood of a human, by a human shall that person's blood be shed; for in his own image God made humankind."7 For capital punishment advocates, this command is simple and decisive: even before the Mosaic covenant, God made it clear that all creatures of the earth must be held accountable for taking life. Even if God did not reinforce this edict by legislating capital punishment all throughout Torah, there is sufficient evidence in this passage to convict.

This line of thinking is too simplistic for Yoder because it does not sufficiently engage the full context of Genesis 9. The first necessary layer of context is Genesis 4-6, beginning with God's decision to protect the life of the first human to shed another human's blood. In Genesis 4:8-15, after Cain kills Abel, Cain does not fear divine retribution; he fears the vengeful reflex of wider society to kill him. That God agrees with Cain's assessment is evident in his promise to avenge Cain sevenfold should others take his life into their own hands. Independent of divine influence, humans gravitated toward a primitive form of death penalty that God did not condone. Yet this divine warning was not enough to prevent bloodshed. Later in Genesis 4, Cain's near-descendent Lamech kills a man for harming him and usurps God's role by escalating the threat of vengeance, saying, "If Cain is avenged sevenfold, truly Lamech seventy-sevenfold." Violence

7 All Scriptural quotes in this essay are from the NRSV.

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only escalated afterward. In chapter 6 we see that, by Noah's day, "every inclination" of the human heart was "always evil continually" with the result that the earth was so filled with violence that God deemed it necessary to purge it completely with a flood (Gen 6:5-13).

The second layer of context is the immediate text within which God's postdiluvian pronouncement to Noah is situated. Genesis 9:1-7 reads,

God blessed Noah and his sons, and said to them, "Be fruitful and multiply, and fill the earth. The fear and dread of you shall rest on every animal of the earth, and on every bird of the air, on everything that creeps on the ground, and on all the fish of the sea; into your hand they are delivered. Every moving thing that lives shall be food for you; and just as I gave you the green plants, I give you everything. Only, you shall not eat flesh with its life, that is, its blood. For your own lifeblood I will surely require a reckoning: from every animal I will require it and from human beings, each one for the blood of another, I will require a reckoning for human life. Whoever sheds the blood of a human, by a human shall that person's blood be shed; for in his own image God made humankind. And you, be fruitful and multiply, abound on the earth and multiply in it."

Yoder makes several important observations about this passage. First, this passage is not foremost about the death penalty; it is about the sacredness of lifeblood--both animal and human. The antediluvian violence that warranted the flood apparently involved killing and consuming animals with no regard for the sanctity of life. God therefore reins in this practice by informing Noah and his descendants that all lifeblood is God's exclusive possession. Though he will allow humans to consume animals, they must acknowledge that life belongs to God alone by draining the blood before eating. This passage teaches that all bloodshed is ritual sacrifice and may only be performed according to specific guidelines prescribed by God.

As an extension of this ritual practice, God also reins in human bloodshed. If animal blood may be shed only under carefully prescribed divinely-mandated conditions, how much more the blood of humans who bear God's image. When people usurp God's exclusive right to human blood, they violate God's order and commit a sacred offense that must be rectified. In

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theological terms, atonement is necessary, and it is fitting that this ritual cultic practice begins and ends with the guilty party's blood. It is important to note, however, that God is not here introducing humanity to a new practice; humans were inclined to kill killers since Cain and Lamech's day. Rather, in response to the escalating vengeance of Lamech and the rampant violence of antediluvian culture, God affirms the need for atonement, makes explicit its sacrificial nature, and limits the shedding of blood to the single life of the slayer.8

The remainder of the Old Testament furnishes the third layer of context. God's desire to restrain the human tendency to escalate vengeance permeates the Law and the Prophets. The Decalogue proscribes killing, which Yoder interprets as taking life when God has not authorized it. The sacrificial system makes the shedding of animal blood a priestly affair. The lex talionis or law of equal recompense (i.e., "eye for eye" and "life for life") continues God's desire to limit retaliation. The cities of refuge, which were presided over by priests, were instituted to protect the life of a killer who did not kill on purpose. The need for multiple witnesses to secure a conviction and the transference of responsibility for prosecution from the next of kin to community leaders and judges, places further restraints upon capital punishment. The practice of YHWH warfare, both to secure the promise land and to maintain it, is defined in ritual, sacrificial

8 This should not be interpreted as contradicting God's desire to spare the first murderer's life, but a concession God is making to the sinfulness of humanity. God has already made several such concessions, e.g., killing an animal to clothed Adam and Eve after they sinned, using the threat of revenge to protect Cain's life, flooding all creation in order to keep humans from destroying this world altogether, and allowing humans to eat animals (and not just vegetation) after humans introduced death into the world. Genesis portrays a God who so loves humans that he chooses to get blood on his own hands to provide for fallen humanity's survival ongoing survival.

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terms and requires divine authorization through priests (Deuteronomy 7:2-6; Joshua 6:17-21).9 In the Torah and the Prophets, God continues the trajectory of reining in bloodshed even further than Genesis 9:6.

It is thus no surprise that Jesus, immediately after claiming to fulfill and not to abolish the Law and the Prophets, cites the lex talionis formulations and then commands his followers not to repay evil for evil, but to turn the other cheek, love their enemies, and pray for those who persecute them. Jesus' teaching can only be regarded as fulfilling these laws if, in their original contexts, they were already serving the purpose of restraining retaliation. Jesus also addresses the death penalty in John 8 when the teachers of the law bring before him a woman who was caught in adultery and thus guilty of a capital offense. His response is twofold: to challenge the self-righteousness of her would be executioners and to proclaim his moral authority to grant forgiveness, even to civil offenses such as this.

On the cross, of course, Jesus most fully reveals God's ultimate response to human sin. In Yoder's words, "Vengeance was never God's highest intent for men and women's relations with one another; permitting it within the limits of justice (i.e., of equivalent injury) was never really his purpose. What God always wanted to do with evil and what he wants humans today to do with it is to swallow it up and drown it in the bottomless sea of his crucified love."10 Though the wages of sin is death, in going to the cross in Barabbas's place, Jesus died so that he and all

9 The ritual nature of warfare is graphically illustrated in the fall of Saul from the kingship. Rather than wait for the priest to ritually consecrate his battle (every Israelite battle had to be consecrated by a priest to insure God's approval and presence, see Num 10:8-9), Saul took it upon himself and was severely rebuked by Samuel and God (1 Sam 13). Shortly thereafter, Saul violates the sacredness of warfare by not killing all of the humans and animals as a whole burnt offering as commanded by God, but choosing that some should live (1 Sam 15). That these chapters were about the sacredness of blood is evident in the intervening chapter (1 Sam 14), in which Saul has to deal with his soldiers eating animals with their lifeblood in them and when Saul spares his son's life after unwittingly vowing to give him over to God.

10 Yoder, The End of Sacrifice, ch. 2.

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capital offenders might live. In going to the cross as an innocent man, he exposed the selective justice of Caiaphas, Pilate, Herod and all religious and political powers who claim the authority to take life.

It is crucial to note, according to Yoder, the sacrificial atonement language the Gospels and Letters use to interpret Jesus' death. Such language underscores the pertinence of the cross for all Old Testament sacrifices, both animal and human, whether performed by religious specialists or public servants. Since the death of Jesus brought a decisive end to sacrifices for sin, Christians should proclaim its abolition and death penalty advocates should no longer claim biblical validation. In Yoder's words,

It is the clear testimony of the New Testament, especially of the Epistle to the Hebrews, that the ceremonial requirements of the Old Covenant find their end--both in the sense of fulfillment and in the sense of termination--in the high-priestly sacrifice of Christ. "Once for all" is the good news. Not only is the sacrifice of bulls and goats, turtledoves and wheatcakes at an end; the fact that Christ died for our sins, once for all, the righteous one for the godless (Heb 9:26-28; 1 Pet 3:18), puts an end to the entire expiatory system, whether it be enforced by priests in Jerusalem or by execution[ers] anywhere else.11

From beginning to end in Scripture, the shedding of blood is a ritual or cultic action that requires divine authorization. When such authorization is not provided, the resulting breach in the cosmic moral order requires some sort of divinely authorized atonement. Those who by faith acknowledge Jesus as God's sacrifice to end all sacrifices therefore possess no biblical grounds to justify the continuing practice of capital punishment.

11 See "Against the Death Penalty," ch. 4, part 3, of The End of Sacrifice; originally published in H. Wayne House and John Howard Yoder, The Death Penalty Debate: Two Opposing View of Capital Punishment (Dallas, Tex.: Word Publishing, 1991), 128. The title of this essay and the aforementioned book, The End of Sacrifice, is derived from the double entendre that Yoder identifies in this quote.

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Cultural Engagement of Capital Punishment

It is common today for theologians to assume that because Yoder was a Mennonite he must have advocated an insular, sectarian ethics with little or no bearing on the public realm. Yoder did theologize as a Mennonite, but he did not simply seek to justify the stance of his own tradition. Rather, he made his case with a keen eye toward challenging problematic tendencies within his tradition. Toward this end, he rejected the false choice between articulating a faith-based position and speaking relevantly into the realm of world governance and he refused to espouse an official position for Christians and then leave it to unbelieving public authorities to establish their own position without having the opportunity to receive guidance from the church. On the contrary, he insisted that it is the church's responsibility to proclaim Christ's lordship and its implications to everyone since everyone lives under Christ's jurisdiction, regardless of whether they submit to his lordship. We proclaim Christ as prophet, priest, and king because his jurisdiction encompasses all social, religious, and political realms. Consequently, the end of sacrifice is not only true for Christians and binding on the believing community; it is true for the cosmos and binding on all rulers and authorities, powers and principalities.

Yoder insisted that we need not be derailed by the "where would this lead?" fallacy. The world's rebellion, which Christ declared will endure until his return, guarantees that Christian social critique will not lead so far that the world relapses into antediluvian violence and chaos. Yet the world must be challenged, one point at a time, to take one step in the right direction and to move up one more notch toward God's righteousness as revealed in Jesus. Just as God, in Scripture, strives to limit vengeance and bloodshed, our witness should be to continue that movement by pulling this limitation tighter and tighter.

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Yoder therefore advocated that Christians stay informed about capital punishment legislation, awaken public opinion by speaking to neighbors and writing to newspapers, witness to legislators when capital punishment is on the table (among other times), support local and denominational efforts to publish conference resolutions and create other channels of testimony, and pray for kings and all who are in high places (1 Tim 2:1-2). Rather than positing a dualism of realms with different moral codes or trying to legislate morality for unbelievers, we should speak to the authorities on a case by case basis about what it means to be decent and human. We cannot posit an ideal state, for that would be the kingdom of God, and we are under no obligation to propose a pattern for society that would work according to our convictions, for that would be the church. Yet in each case we say "no" to the state's misguided directions not because a disciple should not do such a thing, but because an intelligent statesman should not. We must not witness to state representatives on the basis of faith commitments that they have not made, but on public commitments that they have made.

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Yoder made this case for Christian witness to the state since his earliest writings on capital punishment. In the last few years of his life, however, he returned to this subject with fresh insights in "You Have It Coming."12 In this work, Yoder investigates why, at the end of the 20th century, capital punishment had begun to make a legislative comeback in the United States. Drawing upon and extending the work of René Girard and Émile Dürkheim, he comes to the conclusion that capital punishment will not go away altogether because it remains socially functional. From Dürkheim he learns that punishment conforms to a sociological pattern that obtains in all societies. The practice of punishment is (a) vengeful and not performed for health or rehabilitation, (b) supported by transcendent validation, (c) deemed indispensible for society even without the moral approval of social scientists, and (d) reinterpreted by societies so as to hide the primitive simplicity of the drive behind more respectable reasons. From Girard he learns the relevance of scapegoating to the current practice of lethal justice. According to Girard (a) vengeance is a primitive thoughtless reflex that propagates itself though imitation or mimesis, (b) at the origins of civil organization it was deemed necessary to redirect the escalating cycle of violence by channeling it against one victim (c) the scapegoat is sometimes a leader and other times an outsider (whether gypsy, witch, or Jew), (d) the foundational sacrificial event is commemorated and ultimately covered up by myth and ritual, and (e) the Hebraic worldview as fulfilled in Jesus finally broke the cycle of scapegoat based cultures.

12 Yoder, The End of Sacrifice, ch. 5.

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According to Yoder, Girard betrays his liberal sensibilities by narrating the primitive drives behind scapegoating as an embarrassment that needs to be hidden. Instead Yoder explores various understandable motives behind punishment, including maternal (asserting authority over a child), filial/oedipal (moving lame-duck predecessors out of the way), governmental (showing the public who is boss), victim vindication (meeting the psychic need of victims to return pain for pain), and tectonic shift (marking a major transition in cultural meaning through dramatic punitive events). Yoder observes that the point behind these motives is not that equal compensation is necessary to level the playing field, but that more than equal measure is needed to drive the point home that the offender is no longer in charge. He then suggests that scapegoating is not simply an artifact of the primeval past as Girard holds, but a paradigm for the present.

Previous liberal attempts to abolish the death penalty have failed precisely because they did not adequately account for the cultic/ritual function of capital punishment. This function rests upon neither due process nor democratic fairness, but upon the perceived transcendental need to right a wrong. Though Yoder himself had previously made numerous practical and moral arguments against the death penalty--including its exorbitant expense, failure to rehabilitate or deter, social inequity, infallibility of judicial systems, inconsistency in application, jury tampering, prison problems, dehumanizing effect on society, violation of the sanctity of life, and murder of innocents--he now observes that liberal Enlightenment cannot ultimately prevail against capital punishment because it fights the wrong battle.

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Yoder concludes that Christians ought to empathize with their neighbors' need to punish rather than reject with moral outrage the notion of vindictive demand. We must grant the truth that the divine order demands pain for pain and acknowledge with the letter to the Hebrews that this legitimate demand was met on cross of Jesus Christ, once and for all. Though the current practice of lethal punishment is neither morally satisfying nor ultimately redemptive, it nonetheless continues to be functional for those who have rejected the message of Jesus and thus cannot be abolished altogether.

At the end of the day, Yoder's assessment of capital punishment ends where it begins. Sociology has confirmed what theology should always have affirmed: that the taking of life is a cultic or ritual act that demands atonement. Yoder's later reflections express considerable regret that liberal Christian efforts to abolish capital punishment have failed precisely because they catered to modern sensitivities rather than stand by the theological message that the world desperately needed to hear. In Yoder's words, "The way the impact of the death of Jesus can enter the social process is not that it does away with punishment, but that it offers a paradigm whereby, in one place at a time, the awareness that 'this is too much' can break through. None of these changes opens that new age, yet each of them partakes in a fragmentary way of the victory of resurrection and Pentecost, thus offering to others elsewhere, noncoercively, the power to replicate reconciliation."13 Though Yoder never backs down from the normativity of Jesus for all institutions, he gravitates toward a form of witness that is realistic about the world's rebellion while remaining explicit about its theological commitments. Apart from such witness the world will never be able to recognize and confess Jesus Christ as the end of sacrifice.

13 "You Have It Coming," in The End of Sacrifice, part 12, final paragraph.