Interpreting Capital Punishment in Mark 7.10 in its First Century Context(s)

Analysis of Immediate Co-text (Mark 7.4–9)

The handwashing (or sprinkling = א) mentioned in 7.1–4, though its application is exaggerated by the wording ‘and all the Jews’, is plausible. ⁹ It is unclear whether this practice is to be regarded as a Pharisaic innovation or if it preceded them. ¹⁰ The paradosis of the Pharisees in 7.5 is mentioned elsewhere in reference to their teachings that are transmitted orally, though not found in the Torah (Jos., Ant. 13.10.6; 13.16.2; Gal. 1.14), and this seems also to be how the Markan Jesus uses the concept here. Questioned why his disciples do not follow (οὐ περιπατοῦσιν) this paradosis, Jesus answers by charging his interlocutors with being hypocrites (v. 6a) and citing LXX Isa. 29.13 (with a few modifications) as justification.

οὗτος ὁ λαὸς τοῖς χείλεσίν με τιμᾷ,

ἡ δὲ καρδία αὐτῶν πόρρω ἀπέχει ἀπʼ ἐμοῦ·

μάτην δὲ σέβονταί µε

διδάσκοντες διδασκαλίας ἐντάλματα ἀνθρώπων (Mark 7.6b–7)

There are then in 7.7–9 four overlapping accusations: 1) Jesus’s interlocutors teach human precepts as doctrines (διδάσκοντες διδασκαλίας ἐντάλματα ἀνθρώπων, v. 7b); 2) they abandon the commandment of God (ἀφέντες τὴν ἐντολὴν τοῦ θεοῦ, v. 8a); 3) they hold to human tradition (κρατεῖτε τὴν παράδοσιν τῶν ἀνθρώπων, v. 8b); and 4) they reject the commandment of God (ἀθετεῖτε τὴν ἐντολὴν τοῦ θεοῦ) to keep this tradition (ἵνα τὴν παράδοσιν ὑμῶν τηρήσητε, v. 9). The repeated antitheses between God and human and between rejecting and keeping/holding underline the charge of hypocrisy. The expression ‘the command of God’ refers to Mosaic law, the same law that is then cited in v. 10. Other early Christian literature links rejecting (ἀθετέω) Mosaic law to the death penalty: thus, ‘anyone who has violated (ἀθετήσας τις) the law of Moses (νόμον Μωϋσέως) dies without mercy on the testimony of two or three witnesses’ (Heb. 10.28).

Proof of Hypocrisy (Mk 7.10–13) and the Importance of the Death Penalty

After making his accusations, Jesus then moves in v. 10 to prove his point with reference to the teachings of Moses who commanded the honour of one’s parents. ¹¹ The importance of capital punishment for failure to adhere to such a command is stressed by the repetition of ‘death’ with the double imperative (θανάτῳ τελευτάτω). ¹² The statement gives no hint of reticence that Jesus appears elsewhere to show concerning the law of Moses (e.g., Mk 10.5). ¹³ As Marcus writes, ‘dishonoring of parents, then, is in principle a capital matter’ (Marcus 2000: 452). The commands of Moses are contrasted (δέ here functions as an adversative) with the teachings of the Pharisees in 7.11 (note the emphatic ‘you’ in ὑμεῖς δὲ λέγετε) that do not benefit parents and so contradict ‘the word of God’ (7.13). Accordingly, ‘Jesus pits the iconic figures of Isaiah and Moses against the nameless and loosely defined group of elders’ (Mueller 2015: 87). The crux of the debate (7.11), it seems, will concern a korban vow, which, according to vv. 11–12, does not permit ‘doing anything’ (NRSV) for parents. To ‘do nothing’ (οὐδὲν ποιῆσαι) for father or mother in historical context is a dramatic statement. Literature of the period, as we will discuss below, expected much from children to parents, including supporting them in their old age (e.g., Sir. 3.12).

The mention of capital punishment is not central to the conversation about handwashing and sin (Mk 7.1–23) but is nevertheless an important piece in Jesus’s attempted proof for his charge of hypocrisy. Its importance is suggested by several considerations. Firstly, statements about speaking ill of or dishonouring one’s parents can be found without express mention of capital punishment. ¹⁴ The implication follows that its inclusion in 7.10 serves an important purpose for Mark. After all, he might have cited Deut. 5.16 alone without the addition of Exod. 21.16.

Secondly, the mention of capital punishment positively contributes to Jesus’s overall argument. That is, there are three main contrasts in vv. 10–13. First, two sorts of persons are contrasted (Moses versus Pharisees, scribes, and their followers, vv. 10–11). Second, there are two kinds of teaching that are contrasted: one right and one wrong. So, we find, ‘Moses said’, which introduces a teaching (Μωϋσῆς γὰρ εἶπεν, v. 10) and then ‘but you say’ (ὑμεῖς δὲ λέγετε, v. 11), which introduces another teaching. Third, there are two contrasted results from these teachings, one right and one wrong: θανάτῳ τελευτάτω (v. 10) and then οὐκέτι ἀφίετε αὐτὸν οὐδὲν ποιῆσαι τῷ πατρὶ ἢ τῇ μητρί … (v. 12). So, capital punishment is the appropriate punishment for such misbehaviour, whereas in their (alleged) teaching doing nothing for one’s parents is permitted without consequence. If we minimise the importance of capital punishment here, there is an asymmetry and Jesus would offer no correct response to the practice of those who do nothing for their parents. Instead, Jesus offers a response that he claims upholds the law.

Thirdly, as to the wider co-text and context of culture, we find that the person who nullifies (ἀκυρόω, v. 13) a law or authoritative command is elsewhere subject to capital punishment. Three examples suffice to make our point: (i) in a statement relating to Darius’ written sanctioning of the construction of the second temple of Jerusalem, we find the following warning: ‘he commanded that if anyone should transgress or nullify (ἀκυρόω) any of the things herein written, a beam should be taken out of the house of the perpetrator, who then should be impaled upon it, and all property forfeited to the king’ (1 Esdras 6.32); (ii) in Josephus’s account (Jos. Ant. 11.11–18), he supplies the alleged text of an earlier letter from Cyrus about the same matter: ‘And the priests shall make these sacrifices according to the laws of Moses in Jerusalem; and when offering (them), they shall pray to God for the preservation of the king and of his family, that the Persian kingdom may continue. But those disobeying these (injunctions) and nullifying (ἀκυρόω) (them) I desire to be hung upon a cross, and their property forfeited to the crown’ (Jos. Ant 11.17); ¹⁵ and (iii) in a letter from Caligula expressing his displeasure at Petronius’ reluctance to enforce a statue of himself in Jerusalem, we read: ‘Since you have made the gifts, which the Ioudaioi have been furnishing you, of greater import than my commands, prepared to serve in all things at their pleasure in transgression of my commands, I order you to judge yourself and consider what is to be done to you who have occasioned my anger, since indeed may all those now (alive) and as many as later live make you an example never to nullify imperial commands’ (Jos. Ant. 18.304). ¹⁶ Josephus later explains that there was an implied threat of death in these words (Ant. 18.307). Of course, Jesus only implies that the child in this instance, deserves death, not the Pharisees and scribes (who allegedly nullify the law). However, it is worth noting the seriousness of this charge in the period.

In Mark 7, clearly, the proof of hypocrisy rests not only on the failure of Jesus’s interlocutors to adhere to the command to honour one’s parents but also on their disregard of the penalty that attended such disobedience. They say that they follow the law of Moses but permit a vow that annuls both the divine command and its penalty. Jesus’s argument, however, depends on an assumed antithetical equivalence between ‘honouring’ and ‘speaking evil of’. We return to this point later.

Korban as Both Co-text and Context of Culture

Having introduced the relevance of capital punishment in v. 10, consider now two common ways of explaining what the korban vow refers to in v. 11. ¹⁷ The first is that it relates to something actually dedicated to the temple. Such is the understanding of the term’s usage in the Hebrew Bible ¹⁸ and it would also appear in Mark when he glosses the term by ‘gift’ (δῶρον). ¹⁹ The second is treating something (e.g., food, property) as if dedicated to the temple. ²⁰ The second type of interpretation seems the more popular in modern Markan scholarship ²¹ and is the option that we favour for this paper.

The making of vows appears to have been a Second Temple innovation to avoid the dire consequences of not fulfilling an oath. The non-fulfilment of the latter, when sworn by the divine name (or its proxy), was construed as an instance of taking of that name in vain that could not be atoned (Exod. 20.7). The vow of prohibition, instead, consecrated the object of prohibition to the temple with the consecration only taking effect at the moment when the vow is broken. Also, the object of consecration needed to be something that was in the power of the person to offer. ²² Unlike the oath, the penalty that attended an unintentionally broken vow was the same as the penalty that attended the use of temple property, i.e., the bringing of a guilt offering (Lev. 5.14–16). ²³ Vows contrary to mitzvot, like the oath in Mark 7.11, were viewed as valid, another area in which the vow differs from the oath (m. Ned. 2.2). Accordingly, some rabbis were concerned that persons not act frivolously (lit. ‘not make light of his head’, hif. קלל‎) in making vows (m. Ned. 2.1, 5).

Jesus’s point seems to be that God has ordained that children are to take care of their parents in their old age and the child who makes this sort of korban vow would impede or halt that design. Scriptural texts often stress the importance of keeping one’s vows (e.g., Num. 30.2–3), so Mark’s Pharisees and scribes have apparently counselled that such a korban vow must be upheld, despite its potential negative consequences for one’s parent(s). Through this process, Jesus alleges that the vow contravenes the fifth commandment and represents speaking ill or frivolously (קלות ראש‎) with regards to one’s duty to parents.

It is unclear in Mark if the vow refers to a hypothetical situation, or if there was a well-known case of a child using a korban vow in this way. ²⁴ At any rate, the original question about handwashing, which does not appear to break any law, is not directly addressed. ²⁵

Mark 7.10 and Its Cited Co-text

We can now turn to analyse the text of 7.10 in more detail. Two texts are cited in 7.10. First, the command to honour one’s parents is found in Exod. 20.12 but is perhaps reproduced here from LXX Deut. 5.16, as it retains the additional second person singular pronoun (cf. Mk 10.19). ²⁶

Mark 7.10: τίμα τὸν πατέρα σου καὶ τὴν μητέρα σου

LXX Deut. 5.16: τίμα (כבד‎, piel) τὸν πατέρα σου καὶ τὴν μητέρα σου

The second citation perhaps comes from LXX Exodus and, again, is essentially reproduced, the main difference being that the future indicative (‘will die’) is changed to the imperative (e.g., ‘let him die’, NJKV). ²⁷

LXX Exod. 21.16 ὁ κακολογῶν (מקלל‎, piel) πατέρα αὐτοῦ ἢ μητέρα αὐτοῦ τελευτήσει θανάτῳ

Mark 7.10: Ὁ κακολογῶν πατέρα ἢ μητέρα θανάτῳ τελευτάτω ²⁸

The co-text in Exodus concerns a series of laws dealing with violence (Exod. 21.12–27) and follows a command that ὃς τύπτει πατέρα αὐτοῦ ἢ μητέρα αὐτοῦ, θανάτῳ θανατούσθω (LXX Exod. 21.15, ‘whoever hits his father, or his mother, should surely die’). ²⁹ Exod. 21.15–16 appear to be a pair that might be construed as failing to honour one’s parents in deed or in word.

The law is composed of two parts: an offense and a punishment. Regarding the latter, the method of execution is left unspecified, though a reasonable candidate is stoning, which occurs in various NT writings (e.g., John 10.31; Acts 7.58), and is present in other relevant ancient documents. ³⁰ Significantly, stoning is the punishment prescribed in the law of the rebellious child, to which we will turn below. This punishment was often employed as it both resulted in death and was communal; moreover, it appears to have been used in first century Galilee as the NT sources indicate, even if illegally, given how quickly and easily it could transpire. ³¹

As it relates to the offense, one wonders: (a) how are honouring one’s parents and speaking ill of them related concepts; and (b) how has the child, with such a korban vow, spoken evil to their parents? As to (a), the relation between ‘honouring’ and ‘speaking ill of’ in Mark 7.10 lies, it would appear, in the history of language, as well as in cultural values and their practice. ³² In other words, ‘speaking ill of’ is understood to be one way of ‘dishonouring’ a person, and therefore, the two concepts of κακολογεῖν and τιμᾶν are antithetically associated. Essentially, the antithetical association is between the concepts light (קל‎) and heavy (כבוד‎) ³³ and between ‘speak ill of’ and ‘honour’, i.e., between קלל‎ (κακολογέω/ἀτιμάω), a term that is also used of ill-advised vows, as in the case here, and כבד‎ (τιµάω). It is the same antithetical association that facilitates the juxtaposition of the citations in Mark 7.10. As to (b), speaking ill or inadvisably (קלות ראש‎) of one’s parents, in our judgement, more easily relates to the specific declaration by the child that something is korban. As noted above, there are two references to speech in Mark 7.11. The first is, ‘but you say’, (ὑμεῖς δὲ λέγετε), which concerns the Pharisees and scribes, and the second is, ‘if anyone tells father or mother’ (ἐὰν εἴπῃ ἄνθρωπος τῷ πατρὶ ἢ τῇ μητρί), which concerns the child making a specific sort of korban vow to his/her parents. The declaration is in fact a speech-act and as such is an omission of duty by a child that shames the parent; others may think that they have not been a good parent and/or that they did not properly instruct their child. Since the shame is effected by the speech-act, it is accordingly construed as speaking ill of them. In terms of the Markan co-text, then, perhaps it is preferable to understand that ‘speaking ill of’ referred to a child declaring to their parent that some benefit owed to them is korban, because this both directly pertains to an ill-advised vow and also to the nature of a parent/child relationship.

It must be acknowledged that the command to honour one’s parents (Deut. 5.16) as reproduced by Mark does not have any penalty attached and its Pentateuchal iterations only speak of the result attached to its fulfilment, i.e., ‘so that your days may be long and that it may go well with you in the land that the Lord your God is giving you’. In other words, the Pentateuch left the penalty attendant on non-fulfilment ambiguous. Mark seemingly attempts to resolve that ambiguity by citing Deut. 5.16 without its result clause and immediately tying to it the citation of Exod. 21.16 with the death penalty (?). If so, Mark has, as we have argued above, identified ‘speaking ill of’ one’s parents as an instance of failing to ‘honour’ them. As we will argue below, Mark would then share a similar position to that of Philo and Josephus on rebellious children who likewise dishonour their parents.

So, Jesus suggests in Mark 7.10 that there are some actions and/or words that one can perform (or not perform) that render one deserving of death. Specifically, he alleges that there are korban vows, upheld by some Pharisees and scribes, that contravene the fifth commandment.

The Co-text of the Gospel of Mark

A further issue we might reflect upon concerns how our text fits within the larger argument of Mark. One way to speculate about this could be to put the dispute in the context of Jesus’s other disputes with Pharisees and scribes in the Gospel. In these disputes, Pharisees and scribes often allege that Jesus 1) acts unlawfully/ improperly and/or 2) deserves death. Thus, in 2.7 he is accused of blasphemy, and in 2.24 he is accused of Sabbath breaking. In 11.28, he is accused of clearing the temple without authority. Pharisees and scribes also hold that Jesus’s actions are worthy of death. So, in 3.5–6, the Pharisees and Herodians plan to destroy (ἀπόλλυμι) Jesus for healing a man with a withered hand on the Sabbath. In 11.15–16, after Jesus cleanses the temple, and calls it a den of robbers, scribes are named in 11.18 alongside chief priests as those who are looking for a way to kill (ἀπόλλυμι) Jesus. In 14.1, scribes are named alongside chief priests as those desiring to kill (ἀποκτείνω) Jesus (cf. 10.33). In 14.43, scribes are named among those in a crowd who come to arrest Jesus with swords and clubs. In 15.1–31, scribes are among those who hand Jesus over to Pilate and later mock him when he is on the cross. So, perhaps the function of 7.10 within the larger co-text of Mark could be to defend Jesus against charges of lawlessness and to point out the hypocrisy/irony of Jesus’s interlocutors. Although the Pharisees and scribes consistently present Jesus as a lawbreaker and worthy of death, they teach a doctrine that leaves its practitioners breaking God’s law and deserving of death. What is more, as the second-person addressees of the Markan Jesus in Mark 7.6–13, their acceptance of the death penalty elsewhere in the Gospel indicates that at the level of narrative they would not construe its assertion here as unusual.

The Death Penalty Was No Longer Applicable

First, some respond to 7.10 by stating that Jews in the first century did not generally have capital powers. So, Hooker argues that ‘the death penalty was no longer applied in the time of Jesus’s (Hooker 1991: 177). This is a reasonable argument historically (e.g., ‘“O.T.” as studied in our universities has rather less bearing on the law actually obtaining in Jesus’s day than Magna Carta has on ours’: Derrett 2005: xviii), and there is no evidence that Mark’s Jesus supported extra-judicial killing. However, this is not a sufficient response to our question, as it does not necessarily negate that, in 7.10, it is implied that Jesus was a supporter of capital punishment, because support for Torah can equally be shown in the abstract. ³⁴ Because Jesus contrasts his opponents’ teaching with the commandment of God (v. 9), and indeed claims that they have voided the word of God in going against it (v. 13), and earlier upheld the words of Moses (ἃ προσέταξεν Μωϋσῆς, Mk 1.44), the audience may be justified in presuming that he supports the two mitzvot in 7.10.

A Rhetorical Purpose

Others argue that the death penalty is cited for some rhetorical effect, often to highlight the seriousness of the offense. So, ‘Leviticus 20.9 is quoted to support the great importance of the commandment of the Decalogue and not to advise the application of the foreseen penalty. Moreover, the central point of the controversy must be placed in perspective. Jesus’s criticism bears on the fact that the development of tradition cannot lead to a contradiction of God’s commandment that would have as its effect to invalidate it’ (Focant 2012: 289–290). Or, the text ‘serves to illustrate the seriousness of the basic commandment by specifying an extreme case of dishonouring father or mother and the consequent death penalty’ (France 2002: 286).

This is perhaps the most common type of response to the text and makes sense on one level: the offense is certainly serious. Moreover, a rhetorical interpretation clashes with a literal interpretation, so this is a possible alternative explanation for Mark 7.10. Yet, it invites two questions. First, as noted, one can highlight that an offense is serious without recourse to the death penalty. As another example, elsewhere in Mark, Jesus seems to suggest that divorce and remarriage are akin to adultery (^‘He said to them, “Whoever divorces his wife and marries another commits adultery against her and if she divorces her husband and marries another, she commits adultery”’, Mk 10.11–12). Some biblical tradition (Lev. 20.10) prescribes the death penalty for adulterers, but this is not mentioned by the Markan Jesus. So, the addition of the second citation in 7.10 requires our attention. Second, as we demonstrate in the latter half of this essay, it seems that some writers took these ideas literally (see below), so a rhetorical purpose cannot be presupposed without justification. Accordingly, to move the explanation from possible to probable, advocates of the rhetorical view might produce relevant examples of Second Temple sources using capital punishment in a rhetorical or non-literal manner, preferably related to the parent/child relationship, in order for students of this passage to ascertain which interpretation fits the argument of Mark 7.10 more easily.

A Hyperbolic Purpose

Potentially related to the rhetorical purpose is a hyperbolic purpose. Crossley suggests that the text is ‘exaggerated’ and that ‘it would be perilous to read passages such as Mk 7.9–13 too literally’ (Crossley 2004: 190). It is unclear to us if he means that the death penalty in 7.10 specifically is intended hyperbolically, or that the passage is full of hyperbole more generally, given how polemical the situation envisaged is (etc.). But the former point is an intriguing one for our question. If 7.10 is hyperbolic, this would have substantial importance for how we interpret the text and would indeed seem to contradict a literal interpretation. We turn to analyse this option now.

When we speak of hyperbole, we refer to exaggeration relative to the ontological or real-world referent (and the ‘extra-textual’ presuppositions concerning it) of the author and audience. ³⁵ The audience should presuppose that some idea is obviously exaggerated, as hyperbole is not normally lexically signalled. In addressing this option, it is crucial, then, to get a sense of whether Mark and his early audiences would find the penalty exaggerated in terms of its ontological referent.

In their discussion of the identification of hyperbole, Burgers et. al. discuss expressions like:

Most modern people who encounter these statements will be aware of the normal length of movies, of the approximate length of an average morning jog, and of measurements of weather like Celsius and/or Fahrenheit and temperatures in which humans can survive. So, because we inhabit a similar cultural context to the authors of these statements, we tend to presuppose that they are intended hyperbolically. Our question, however, is complicated when we discuss ancient texts, which presuppose different cultural contexts.

In terms of our topic, some germane questions are:

When considering hyperbole in 7.10, one would need to examine whether a first-century audience might plausibly support capital punishment for the son or daughter that breaks the fifth commandment in some way and/or speaks ill of their parents. The difficulty is that we do not possess good extant cases to assess the assumptions behind Mark 7.10. So, it is hard to know how hyperbolically it would have been taken. Still, there is one legal discussion in the first century that has relevance to this issue: the law of the rebellious child.

The Rebellious Child in Josephus

In Josephus’ explication of this law (Ant. 4.260), he outlines two connected reasons for the necessity of punishment: offending children fail to show honour and they bring shame to their parents. ³⁸ According to Avioz, ‘Josephus is likely connecting this law to the commandment in the Decalogue about honoring parents (Exod. 20.12), since he emphasizes lack of “honor” as opposed to disobedience’ (Avioz 2021: 102). Josephus argues that children are to take care of their parents as parents took care of them when they were young (Ant. 4.261). The parents are therefore to warn the disobedient child (Ant. 4.260) that their disobedience is an affront to God, the father of humanity (Ant. 4.262). If a child’s actions are not corrected by the pleading of his parents, they are to be stoned to death by a multitude (Ant. 2.264–65; the elders in Deut. 21.20 are not mentioned), left for a day, then buried at night (Ant. 4.264; cf. Deut. 21.23; C. Ap. 2.211). ³⁹ As already noted, Josephus writes (C. Ap. 2.206) that parents should be honoured and that the penalty for those who fail to comply is stoning. Indeed, failure to respect one’s parents is met with quick destruction/summary execution. ⁴⁰ Josephus links this with failing to return what one has received from one’s parents. ⁴¹

It may be that Josephus’s emphasis on the death penalty had an apologetic motive, attempting to align, or stress, the punishment as it meets strict Roman standards of justice. Still, the stoning of soldiers is mentioned elsewhere (e.g., Ant. 17.216), as is the story of the stoning of James (Ant. 20.200) by the Sanhedrin, for allegedly breaking the law. The penalty for this offense is also mentioned by Philo and in various Hebrew scriptures. Moreover, as Avioz has noted, the biblical and Roman traditions differ insofar as the former emphasises the role of the mother in the judgement. Finally, Josephus mentions nothing of Roman law here (Avioz 2021: 84). So, in addition to its apologetical purpose, which itself may speak to a climate of opinion that would see nothing hyperbolic in Mark 7.10, the penalty also likely reflects a common Jewish standard of justice, which may be important in our understanding of Mark’s, and his audience’s, ontological referent. So, it appears that Josephus supported the law of the ‘rebellious child’ and assumed that such persons could, at least ideally, be executed: ‘Josephus … treats this law like any other, and he gives the reader no reason to think that such cases never resulted in execution’ (Avioz 2021: 103). ⁴²

Next, when considering contraventions of the fifth commandment and the death penalty, the story of the death of Alexander and Aristobulus, the sons of Herod, should be noted. ⁴³ The sons were brought before Augustus (Ant. 16.91), wherein they were accused of a desire to take over their father’s kingdom (Ant. 16.92). In his speech, Herod indicates that he had power over this matter, both as a king and as a father, but had decided to leave the matter to Caesar (Ant. 16.98). In this instance, Augustus ultimately concluded that the sons were innocent (Ant. 16.125). Later, however, the sons were accused of plotting to kill Herod in a speech given by him in Berytus (c. 7 BCE), which was designed to secure their execution, and Herod is therein portrayed as quoting the law concerning the rebellious child in his speech (Ant. 16.365; cf. Macrob. Sat. 2.4.11). ⁴⁴ Herod had received permission from Caesar to exact judgment on his sons (B.J. 1.536–537) in the case of πατραλοίας (parricide, Ant. 16.356) and so set up a council comprising his own relatives and local leaders to this end (B.J. 1.537). Ultimately, the sons were executed, though by strangulation (Ant. 16.394).

Josephus writes disapprovingly of Herod’s actions because he claims that Herod lacked sufficient evidence against his sons (B.J. 1.540; Ant. 16.400) and because his actions were too emotional (Ant. 16.402). Some have referred to Herod’s actions here as ‘murder’ (Fuller 1994: 176 n. 17), but this is difficult to sustain on legal grounds: ‘There does not seem much doubt that he really did have the right to dispose of his sons’ (Czajkowski 2016: 492). Perhaps the charge is meant more informally—in which case, we note that Josephus claims that Syria and all the Jews considered this act to be child-murder (B.J. 1.543; cf. Ant. 16.383).

Much has been written on the possible Roman and/or Hellenistic background to this story, but our interest is principally in the biblical parallels. ⁴⁵ Rabello comments that the lack of oral defence given to Herod’s sons is ‘contrary to every proper procedure in pursuit of justice’ (Rabello 1992: 49). We must ask, do the biblical texts explicitly require the accused child be given a chance to defend themselves? As Avioz notes, ‘Immediately after the parents testify, the child is stoned to death by the community’ (Avioz 2021: 104). Rabello regards the trial as contrary to biblical law, which gives ‘absolute equality to the status of the father and the mother’ (Rabello 1992: 50). However, the mother in this instance was dead. Rabello also comments that the patria potestas was a ‘law of the Roman citizens’ (Schiller 1978: 367) (ius proprium civium Romanorum). ⁴⁶ Of course, in this instance, Herod was possibly a Roman citizen (Ant. 14.137) ⁴⁷ though the execution may have been ‘partly in and partly beyond Roman mores’ (Curran 2018: 132). Winter claims that his actions against family members ‘do not permit deductions as to what was Jewish legal procedure’ (Winter 1961: 188 n. 21). This point seems correct. Still, the case does not appear arbitrary. A premeditated charge is levelled against the sons (Ant. 16.356), ⁴⁸ though Josephus considers it false or exaggerated. McGinn finds a distinction here in that Deuteronomy ‘allows for the production of the accused in court, a court that is clearly meant to be independent of the father’s authority’ (McGinn 2019: 171), which would make sense of the reference to the gate of the place/city (שער מקמו‎). An independent court may be implied in the biblical law, but Ant. 4.260 stipulates that parents have autonomous power over their sons. ⁴⁹

Even though this event did not, and could not, exactly match biblical prescriptions, Herod did not appear to believe the law of the rebellious child was irrelevant, regardless of how cynical his citation of it was (which would be tricky to show either way). According to Ant. 16.365, Herod explicitly cited the law of the rebellious child during the trial, with the punishment described as stoning by bystanders, and claimed that if he were in his own country (πατρίς) he would implement it due to his authority as a father. Because he was not in his own country (and because he or Josephus might have been deceptive, etc.), this is surely not an example of its implementation. Nonetheless, it is cited, and Herod’s sons are killed, by strangulation (Ant. 16.394) and not stoning. ⁵⁰ Some might stipulate that the law of the rebellious child was irrelevant to this execution, given Herod’s power and influence. If so, they would need to demonstrate why it was cited.

According to the portrayal of Josephus, then, Herod publicly subscribed to the concept of the ‘rebellious son’, cynically or not, and supposed that the ideal punishment for such an offense, were he in his own country, would involve parents placing hands on the child and then a stoning by bystanders.

The Rebellious Child in Philo

We can now turn to examine this theme according to Philo of Alexandria. With Josephus, Philo also writes of a ‘natural’ order, wherein men take precedence over women (Spec. Leg. 2.124), and eldest sons receive double the inheritance (Spec. Leg. 2.133, cf. Deut. 21.17). Parents spend greatly on their children and therefore deserve respect (Spec. Leg. 2.233–234) and are owed benefits in return for what they give to their children (Dec.113–118). Indeed, they share in the divine (in that they create life, Spec. Leg. 2.225). Parents are also an imitation of the divine as they bring non-existent things into being, and are, according to God’s order, rulers (Spec. Leg. 2.3). Moreover, they are owed respect because they occupy many senior roles at once, including elder, teacher, and master (Spec. Leg. 2.227), ⁵¹ and this is also natural (Spec. Leg. 2.231).

Because of this natural order, fathers have the authority to accuse and severely admonish children when they are disobedient (Spec. Leg. 2.232). After this, they can beat, humiliate, and bind them (cf. Ant. 16.361). If this does not prove effective, death is permitted by the law. However, both parents must approve. ⁵² Significantly for our question, Philo also writes that speaking ill of parents (κακηγορέω, 2.248) or doing anything to dishonour them is sufficient to warrant the death of sons. Likewise, for physical violence: he rejects calls to merely cut off the hands of those that strike their parents as insufficient (Spec. Leg. 2.243–244). Such calls for leniency come from ‘lawmakers’. ⁵³ Thus, in Philo, the death penalty was appropriate for a rebellious son. Two points seem particularly germane to him. First, is the idea of a natural order. Second, is the notion that children owe things to their parents, a view shared by other ancient writers. ⁵⁴

Relevance of Josephus and Philo to Mark 7.10

In the context of first-century Judaism(s), would it be clearly absurd, and so plausibly hyperbolic, for Mark’s audience to believe that a son or daughter deserves to die because of speaking ill of their parents by declaring their duty as children korban? In reviewing some conversations concerning the rebellious child, which touch on the relevant issues of hierarchies and the obligations of children toward their parents, it is apparent that the death penalty was supported by Josephus and Philo. Indeed, the law of the rebellious child could be cited therein as an example of behaviour, both physical and verbal, including acts of commission and omission, performed by children that is deserving of death. The crucial difference between these texts is that the law of the rebellious child is not cited in Mark 7.10. Of course, the law could not be directly invoked in this instance, as it was for a parent to declare. Further, this discussion may well have also been entirely hypothetical. On the other hand, the similarities between the discussions in Josephus and Philo and in Mark 7.10 may be worth considering as regards our background information, i.e., the context of culture, against which to judge the likelihood of hyperbole. In the texts surveyed, we have evidence of Jewish authors in the first century discussing various actions, including improper speech, striking one’s parents, failure to return sufficient honour and/or benefits, which deserve death. The penalty is also supported in cases of children omitting to provide what is required for their parents. Moreover, both Josephus and Philo associate the law of the rebellious son with the duty to honour parents. This all seems relevant for the korban vow discussed in Mark 7.11. Given these discussions, we find no immediate indication that a first-century audience devoted to upholding Torah would necessarily understand the saying as exaggerated or beyond a reasonable position to hold. So, it is possible that Mark’s Jesus may have used 7.10 in a non-hyperbolic manner.