Stoning the Idolater: The Significance of Proper Procedure

Deuteronomy 17:2-7 outlines a law that mandates death by stoning for anyone who violates God’s covenant by worshiping foreign deities. At first glance, the point of this law is to punish, and thus prevent, worship of any other god. From this perspective, the law fits reasonably well with the three prohibitions that precede it in the text: the laws against planting an Asherah (16:21), erecting a religious pillar (matseba; 16:22) and offering blemished animals in sacrifices (17:1).

Thus, regarding 17:2, ibn Ezra, whose comments, in general, attend to the ordering of the laws, writes: “After it mentions the Asherah near the altar, which is (an idolatrous practice) in public for all to see, it once again warns the individual against foreign worship.” The law in Deuteronomy 17:2-7, then, is the fourth in a series whose overall purpose is to ensure proper religious behavior in service of God.

Modern readers who focus on this rather jarring punishment miss that the overall thrust of the passage describes the proper way to convict an idolater. In other words, even as this law implicitly bans the worship of foreign gods, it also explicitly imposes a series of procedural steps that come before the punishment. According to 17:4, a “thorough investigation” must be carried out to establish that “the abominable act has (indeed) been committed.” Furthermore, 17:6 restricts the punishment to cases in which the testimony of two or three witnesses is available; the word of a lone accuser will not carry the day.

Finally, even though 17:7 envisions a role for the entire community in the execution, its requirement that the witnesses themselves begin the stoning provides some further assurance against frivolous accusations. Thus, several modern scholars agree with Bernard Levinson’s assessment that “the true topos of the paragraph is not apostasy but the rules of evidence.”^[1] According to this understanding, the law in 17:2-7 has more to do with the following law (17:8-13), which delineates the role of the Temple court in cases that resist easy adjudication, than it does with the three preceding laws about proper worship.

Levinson draws a parallel between the law in 17:2-7 and the first set of laws in Hammurabi’s famous “Code,”^[2] which govern trial procedure.^[3] In particular, the very first law states:

If a man accuses another man and charges him with murder, but cannot establish the case against him, his accuser shall be killed.

Like the law against idolatry in Deuteronomy, this Mesopotamian law also imposes the death penalty, which certainly disturbs modern sensibilities. Nevertheless, it is important to recognize that, fundamentally, the punishment itself is beside the point. Both laws share an even deeper concern with proper trial procedure. Both laws are meant to prevent frivolous accusations and to ensure that proper procedure is followed even during the prosecution of the most severe crimes.

In Deuteronomy, death by stoning occurs only after a proper trial has been conducted. In Hammurabi’s law, accusers must establish their claims or risk facing the very punishment they hoped to bring upon their victims. Both laws imply the same conclusion and are paradigmatic: if idolatry or murder cases require a proper trial, certainly other, less abhorrent crimes do, as well.

In the case of Deuteronomy 17:2-7, the “pursuit of justice” (see Deut 16:20) through proper trial procedure subordinates the immediate prosecution of even the ultimate violation against God’s covenant. Indeed, not following proper procedure would, of itself, violate the terms of the covenant in much the same way that idolatry would!

Insistence on proper procedure prevents zealous vigilantism in the name of true worship of God.^[4] This understanding of the law dovetails nicely with a concept of justice found in other parts of the Torah, as well. The laws of the ben sorer u-moreh, “the profligate son” (Deut 21:18-21), the accused bride (Deut 22:13-21), and the suspected adulteress, or sota (Num 5:11-31) are all laws that require a public procedure to address an inner-familial problem.

In all of these cases, the primary purpose of the law is not to prohibit the particular alleged misdeed, but to institute the procedure that would settle the matter. Thus, these laws protect weaker family members (the son, the bride and the suspected sota) by limiting the powers that adult, male heads of households traditionally would have had. Like the law in Deuteronomy 17:2-7, these procedures stand firmly against powerful individuals taking the law into their own hands, no matter how right their cases may be. For justice to be served, even the apostate must have a fair trial.