The Proper Translation of Exodus 21:22-25

Recently I came across a video by Dan McClellan responding to a criticism of his view of Exodus 21:22-25. I agree with many of McClellan's criticisms of that content creator, who seems to be in over his head addressing the translation of Exodus 21. However, I also think that McClellan overstates his case, and I believe he's assigning more certainty to his view than is warranted by the evidence. McClellan's position is that these verses treat causing a miscarriage to be punishable only by a fine, while harm to the mother is punishable according to the principle of lex talionis. However, this is not clear in the text, and I consider this to be a less likely understanding of its meaning. Let's look at the text that expresses his view as it appears in the NRSVue:

22 “When people who are fighting injure a pregnant woman so that there is a miscarriage and yet no further harm follows, the one responsible shall be fined what the woman’s husband demands, paying as much as the judges determine. 23 If any harm follows, then you shall give life for life, 24 eye for eye, tooth for tooth, hand for hand, foot for foot, 25 burn for burn, wound for wound, stripe for stripe.

Here's how the same passage is rendered in the NIV:

22 “If people are fighting and hit a pregnant woman and she gives birth prematurely but there is no serious injury, the offender must be fined whatever the woman’s husband demands and the court allows. 23 But if there is serious injury, you are to take life for life, 24 eye for eye, tooth for tooth, hand for hand, foot for foot, 25 burn for burn, wound for wound, bruise for bruise.

There are other translations we could look at, but these two I think are representative of the two ways in which the Hebrew case law has been understood. In the NRSVue, the law is concerned with harm that follows the miscarriage of a pregnant woman injured as a result of two men fighting. In this translation, the fetus is treated differently from the mother. The fetus is killed in the fight, and the one responsible only as to pay a fine for killing the fetus; lex talionis applies only to the mother. In the NIV, however, the pregnant woman gives birth prematurely and there's no indication whether baby survives or dies. In this translation, the mother and the baby are treated the same, and the principle of lex talionis applies equally to both. If there is no harm caused, the person responsible pays a fine for causing a premature birth; if there is harm caused, then lex talionis applies.

At the outset, let me tell you where I'm headed. I think McClellan is right that this passage does not unambiguously apply lex talionis to both the mother and the baby. I also think it's pretty clear that this passage does not unambiguously apply lex talionis only to the mother, and I remain unconvinced that the NRSVue's reading is the best rendering of the Hebrew. On balance, I think the NIV's translation preserves a little more ambiguity (it's less interpretive of a translation). I think Robert Alter's translation may well strike the best balance:

22 And should men brawl and collide with a pregnant woman and her fetus come out but there be no other mishap, he shall surely be punished according to what the woman's husband imposes upon him, he shall pay by the reckoning. 23 And if there is a mishap, you hall pay life for life, 24 an eye for an eye, a tooth for a tooth, a hand for a hand, a foot for a foot, 25 a burn for a burn, a wound for a wound, a bruise for a bruise.

Alter's translation is a little awkward, but it preserves more ambiguity, and I think it avoids giving the text a predetermined meaning that could plausibly be wrong.

The Hebrew

Here's the text of the Hebrew Masoretic Text (MT):

וְכִֽי־יִנָּצ֣וּ אֲנָשִׁ֗ים וְנָ֨גְפ֜וּ אִשָּׁ֤ה הָרָה֙ וְיָצְא֣וּ יְלָדֶ֔יהָ וְלֹ֥א יִהְיֶ֖ה אָס֑וֹן עָנ֣וֹשׁ יֵעָנֵ֗שׁ כַּֽאֲשֶׁ֨ר יָשִׁ֤ית עָלָיו֙ בַּ֣עַל הָֽאִשָּׁ֔ה וְנָתַ֖ן בִּפְלִלִֽים׃

וְאִם־אָס֖וֹן יִהְיֶ֑ה וְנָתַתָּ֥ה נֶ֖פֶשׁ תַּ֥חַת נָֽפֶשׁ׃

עַ֚יִן תַּ֣חַת עַ֔יִן שֵׁ֖ן תַּ֣חַת שֵׁ֑ן יָ֚ד תַּ֣חַת יָ֔ד רֶ֖גֶל תַּ֥חַת רָֽגֶל׃

כְּוִיָּה֙ תַּ֣חַת כְּוִיָּ֔ה פֶּ֖צַע תַּ֣חַת פָּ֑צַע חַבּוּרָ֕ה תַּ֖חַת חַבּוּרָֽה׃  ס

I'm not going to go into a lot of detail in the Hebrew here because the issues here mostly involve how we translate a couple phrases in v. 22. To make this easier on those who are not familiar with the Hebrew alphabet, I'm going to discuss this using English transliterations of the Hebrew words. Alter translates the phrase veyazh֣u yald֔ya (וְיָצְא֣וּ יְלָדֶ֔יהָ) as "fetus come out." The phrase is made up of the words yeled (יֶלֶד) for "child"/"fetus" and the word yāṣāʾ (יָצָא) for "come out." In addition to the sources McClellan cites in his video, there are other lexical sources that clearly do indicate that these words can be used with reference to a miscarriage or an aborted fetus. The entry for yeled from A Concise Hebrew and Aramaic Lexicon of the Old Testament[1] is 

1. boy, male child: a) Gn 4:23; b) pl. boys, children Gn 30:26; = fetus (in a miscarriage) Ex 21:22; c) yeled zequnîm child of one’s old age Gn 44:20;—2. haylādîm ‘the young men,’ advising group (:: elders) 1 K 12:8;—3. young of animals: cow & bear Is 11:7, raven Jb 38:41, hinds, mountain goats 39:3.

And the same lexicon renders veyazh֣u yald֔ya as "her fetus died" citing Ex 21:22. So the translation offered by the NRSVue is a plausible translation. McClellan also shows that Clines' lexicon indicates that when yeled is used in the plural with yāṣāʾ, it means "abort." So clearly Hebrew scholarship indicates that this phrase can be translated as rendered by the NRSVue. However, that doesn't mean it has to be be translated this way, even when lexicons cite Ex 21:22. In fact, it's not even clear that the plural of yeled should be considered correct. The Samaritan text[4] differs from the MT here and reads,

22 And if men struggle with each other and they strike a pregnant woman and her child is born. And there being no harm, he shall be surely fined, according as the woman’s husband shall lay upon him. And he shall pay as the judges determine. 23 And if harm follow, then you shall give soul for soul. 24 Eye for eye, tooth for tooth, hand for hand, foot for foot. 25 Burning for burning, wound for wound, stripe for stripe.

The Samaritan text uses the singular (child) and supports the understanding of the NIV over the NRSVue. As we'll see below, the LXX also uses the singular "child."

I think it's important make a distinction here between what a word means and how a word can be translated. Lexicons provide both but are more concerned with the latter. The best way I can think of to illustrate this is to consider how we use the English words "eat" and "drink" and the Spanish words comer and beber/tomar. We generally translate the word comer as "eat" and beber as "drink" because that's generally what these words mean when expressing their meanings in English. However, in English we distinguish between eating and drinking by the manner in which we bring food to our mouths. We "eat" soup if we use a spoon to bring it to our mouths and we "drink" soup if we bring the bowl to our mouths. However, in Spanish, you distinguish between comer and beber/tomar by the consistency of what you're eating. You always comer what is solid and beber/tomar what is liquid. This means that even if we say in English that we eat our soup with a spoon, you would always translate this into Spanish with beber/tomar. In Mexico, the word tomar (which literally means to "take") is also be used to mean to "drink." In some contexts, beber is used for drinking alcohol and tomar is used for consuming other liquids. The words in Spanish have a semantic range and conventions on when to use one word over another. When translating these words into English we cannot assume a 1-to-1 mapping to the corresponding English words.

Similarly, the phrase veyazh֣u yald֔ya simply indicates that her "baby came out," whether the baby survives birth or dies. If the phrase is used in a context where the baby dies, it would be translated in English as a miscarriage. If it's used in the context where the baby survives it would be translated as being born immaturely. Lexicons do not dictate what words and phrases mean. They indicate how the semantic ranges of words and phrases can be rendered in other languages. They are descriptive, not prescriptive. These lexicons do not and cannot settle any debate about the phrase should be translated in this context, and I consider it poor scholarship to treat them this way. Furthermore, if the intention of Ex. 21:22 was to exclusively indicate a miscarriage or still birth, the text could have used other words such as šākal (שָׁכַל), and this would have removed ambiguity. I think it most plausible that the text used veyazh֣u yald֔ya instead of šākal because the text was referring to any instance in which the baby "came out," whether the baby survives or dies.

I find it interesting that the NRSVue adds a word to what follows its translation, "no further harm follows." The word "further" is not in the Hebrew. It's added to make sense of the text after translating veyazh֣u yald֔ya as "miscarriage." Let me be clear, if the NRSVue's translation is correct, the addition of "further" is warranted. But the lack of explicit reference to "further" coupled with the ambiguity of veyazh֣u yald֔ya (along with some textual issues discussed below) indicates to me that the NRSVue may be over-translating. It renders the verse this way to make its interpretation more certain than the Hebrew warrants. McClellan himself admits that "appealing to the Hebrew here is not determinative." I agree. And because of that, I don't think the NRSVue should have rendered it as it has.

The Greek Septuagint

The Septuagint (LXX) differs from the Hebrew MT in a couple significant ways, at least as it's traditionally understood. Here's the LXX:

22 Ἐὰν δὲ μάχωνται δύο ἄνδρες καὶ πατάξωσιν γυναῖκα ἐν γαστρὶ ἔχουσαν, καὶ ἐξέλθῃ τὸ παιδίον αὐτῆς μὴ ἐξεικονισμένον, ἐπιζήμιον ζημιωθήσεται· καθότι ἂν ἐπιβάλῃ ὁ ἀνὴρ τῆς γυναικός, δώσει μετὰ ἀξιώματος·  23 ἐὰν δὲ ἐξεικονισμένον ἦν, δώσει ψυχὴν ἀντὶ ψυχῆς, 24 ὀφθαλμὸν ἀντὶ ὀφθαλμοῦ, ὀδόντα ἀντὶ ὀδόντος, χεῖρα ἀντὶ χειρός, πόδα ἀντὶ ποδός, 25 κατάκαυμα ἀντὶ κατακαύματος, τραῦμα ἀντὶ τραύματος, μώλωπα ἀντὶ μώλωπος. 

“And if two men strive and smite a woman with child, and her child comes out not fully formed, he shall be forced to pay a penalty as the woman's husband may lay upon him, he shall pay what seems fitting. But if the child is fully formed, he shall give life for life, 24 Eye for eye, tooth for tooth, hand for hand, foot for foot, 25 burn for burn, wound for wound, bruise for bruise.”

Here, the LXX translates veyazh֣u yald֔ya literally as ἐξέλθῃ τὸ παιδίον αὐτῆς ("her child comes out") and not with the Greek word for miscarriage, which is ἔκτρωμα (which itself has ambiguities, as in 1 Cor 15:8). However, it differs from the Hebrew in what follows, μὴ ἐξεικονισμένον or "not fully formed." And verse 23 differs even more. It renders vv. 23-25 as governing punishments exclusively related to what happens to the infant, ἐὰν δὲ ἐξεικονισμένον ἦν ("but if he was fully formed..."). In this case lex talionis applies to the baby only if fully formed, and the mother's condition is not in view at all. One plausible interpretation of this translation is that "fully formed" indicates that the fetus has reached a stage of fetal development. Before that stage, a fine is assessed (no lex talionis) and after that stage lex talionis applies. However, in this understanding we cannot translate ἐξέλθῃ τὸ παιδίον αὐτῆς as referring to a miscarriage because vv. 24-25 would then be completely unnecessary. If the fully formed fetus is dead, lex talionis would indicate life for life, and the next two verses are completely superfluous. The LXX rendering indicates that if a fully formed fetus survives but is injured, lex talionis still applies. So this to me is a strong indicator that ἐξέλθῃ τὸ παιδίον αὐτῆς should not be translated as referring specifically to miscarriage. The baby is born prematurely. If the baby is not fully formed, a fine is assessed, whether the baby survives or dies. If the baby is fully formed, lex talionis applies, whether the baby survives or dies.

The Code of Hammurabi

McClellan also briefly addresses the relationship between this text in Exodus and the Code of Hammurabi (CH), and he seems to think that the CH exerts some exegetical control limiting the plausible ways Exodus 21:22-25 can be understood, especially since other law codes of the Ancient Near East follow the same conventions as the CH. But I'm not convinced the CH is of much help. There's the relevant portion of the CH.

206. If during a quarrel one man strike another and wound him, then he shall swear, "I did not injure him wittingly," and pay the physicians. 207. If the man die of his wound, he shall swear similarly, and if he (the deceased) was a free-born man, he shall pay half a mina in money. 208. If he was a freed man, he shall pay one-third of a mina. 

209. If a man strike a free-born woman so that she lose her unborn child, he shall pay ten shekels for her loss. 210. If the woman die, his daughter shall be put to death. 211. If a woman of the free class lose her child by a blow, he shall pay five shekels in money. 212. If this woman die, he shall pay half a mina. 213. If he strike the maid-servant of a man, and she lose her child, he shall pay two shekels in money. 214. If this maid-servant die, he shall pay one-third of a mina.

Clearly there are parallels between the Code of Hammurabi and Exodus 21:22-25, but while these parallels exist, the Exodus case law has clearly made significant adaptations to the CH, which is far more interested in assigning reparations based on social class. And while parallels exist across law codes of the Ancient Near East, they do not all agree with each other. The Middle Assyrian Laws (MAL), for instance, which have a reputation for being particularly brutal to women, has a parallel to this section of the CH in A§50. Here's Martha Roth's translation in Context of Scripture.[5]

[If a man] strikes [another man’s wife thereby causing her to abort her fetus, …] a man’s wife […] and they shall treat him as he treated her; he shall make full payment of a life for her fetus. And if that woman dies, they shall kill that man; he shall make full payment of a life for her fetus. And if there is no son of that woman’s husband, and his wife whom he struck aborted her fetus, they shall kill the assailant for her fetus. If her fetus was a female, he shall make full payment of a life only.

MAL A§50 appears to prescribe the death penalty for the assailant if he causes a woman to miscarry who has no other son. If he kills the pregnant woman, the assailant is also killed, presumably because by killing the woman he also killed her fetus.[6] Exodus 21:22-25 has conflated much of the CH content, and Exodus deals with a situation in which two men accidentally injure a woman such that she goes into labor prematurely and gives birth. Even though the CH is concerned with the situation in which a miscarriage occurs, there's no reason why Exodus couldn't have decided to apply it more broadly than the CH. The law codes of the Ancient Near East differ significantly from each other even when strong parallels exist. The rule of a fine for the fetus and lex talionis for the mother may be accurate for the CH, but the Hebrew is much less clear. And if the LXX is correct, harm to the mother is not in view at all.

Sources of Overconfidence

So why does McClellan seem so confident in his view? He provides three general reasons we should prefer the NRSVue over the NIV, the first being that scholars in "overwhelming agreement" on this point, which I question. I haven't done a survey of the literature, but it hasn't been difficult at all to find scholarship that either disagrees with McClellan or at least that expresses a greater amount of uncertainty on the issue. Alter's translation expresses greater uncertainty, and his commentary even questions whether the plural of yeled should be accepted over the singular, which is found in Samaritan text and the LXX.[2] He also points out that the lex talionis language may be "archaic law code stitched to this text" and what is in view is that the liable party would "pay monetary compensation for the loss incurred." Lex talionis applies metaphorically in his view, so rather than bruising the offending party in the exact place the mother was bruised, a value would be assessed for the loss incurred by the bruise. Cassuto's commentary[7] is interesting because he translates the relevant phrase as "and her children come forth" but then qualifies this with "i.e. there is a miscarriage." But even with that qualification, he interprets the passage as NIV translates it. If "no mischief happens - that is, the woman and children do not die - the one who hurt her shall surely be punished with a fine... But if any mischief happen, that is, if the woman dies or the children die, then you shall give life for life, eye for eye, etc." Others see three ways to interpret this passage (which correlate to the views expressed by the NRSVue, NIV and LXX) and are unsure which one is best. And Thomas McDaniel[3] has argued that the LXX is actually the correct translation of the Hebrew.

McDaniel's position is that there were two words with the same consonants (אסון) but different meanings and vocalizations, one of which had fallen out of use but is likely original to this Hebrew text. Translations have assumed the wrong vocalizations for word in the MT, and the original Hebrew word was the one that meant "fully formed." I don't see any need here to weigh in on whether McDaniel is right, but it seems clear to me that there isn't a true, scholarly consensus on what the Hebrew text means. It's very possible that "child" is singular not plural (if we take the Samaritan text and LXX over the MT) and it's possible that the LXX translation is indicative of the original wording of the Hebrew. If these are the case, then McClellan's reading of the text is impossible.

McClellan's second cause for confidence in his view comes from the fact that if the baby was born unharmed, then there would be no need for any reparations, since in Hebrew law code, there must be harm to warrant reparations (the "no harm no foul" principle applies). Since a fine is assessed in v. 22, this means that the baby must have been harmed. And while I agree with his that this is how Hebrew law works, it's easy to see that there is potential for harm with a baby born healthy and prematurely. Aside from the fact that the brawl forced the mother into premature labor, perhaps the father and mother would now incur expenses for their home more rapidly than expected because the baby was born prematurely. Perhaps they were away from home and now need to forego their original plans and return home, which may cost them financially. Perhaps the brawl caused damage to other property and clothing while leaving the baby and mother unharmed. There are any number of ways in which the brawl may cause harm for which reparations would be needed, even if the baby and mother were healthy.

McClellan's third cause for confidence is that he seems to think that early interpreters of Exodus 21 confirm his view. McClellan focuses his attention on Josephus and Philo. I haven't investigated these much, but I think this is complicated by a couple factors: 1) he looks only at English translations of these interpreters, and 2) to some extent these writers may be interpreting this verse in light of the LXX. In the interest of space, I'm not going to go into the history of interpretation of Exodus 21:22-25.  However, McClellan is clearly wrong about Philo, at least in the quote he provided, which is:

So Moses then, as I have said, implicitly and indirectly forbade the exposure of children, when he pronounced the sentence of death against those who cause the miscarriage of mothers in cases where the foetus is fully formed.

This does not privilege his view of Exodus 21:22-25 over that of the NIV. Even if we accept the translation of the NIV, Moses would have pronounced the death sentence against those who cause a miscarriage. It also pronounced lesser punishments for those who cause lesser harm to the fetus. And the same is true of the LXX, which clearly states in vv. 24-25 that while the death penalty applies when a miscarriage occurs, lesser punishments are pronounced for lesser harms on the principle of lex talionis. Now I admit that I do not feel confident in the history of interpretation in this passage, but I suspect his two examples here may be cherry-picked (and one was wrong). There are reasons to think that some early texts, like the Didache, would have interpreted Exodus 21 more consistently with the NIV, but I'd like to do more homework before saying anything confidently here.

Significance

In this post, I'm mostly concerned with how Exodus 21:22-25 ought to be translated. I'm not convinced by McClellan's arguments in favor of the NRSVue, and I'm also not yet convinced by the LXX reading, but I'd like to give that more thorough consideration. So far I think Alter's translation does the best job of avoiding a translation that privileges one interpretation over others. But this passage is significant in the context of seeking to understand the how the Old Testament views the value of the fetus, and therefore it's relevant in discussions on abortion. Here are my thoughts on the relevance of this passage to that discussion:

1. This passage is dealing specifically with a situation in which the mother wants her child but is forced to give birth prematurely by the violent negligence of two brawlers, so it's not directly related to abortion, where a woman wants to terminate her own pregnancy.
2. If the NIV is correct, the OT values the fetus as having equal value as the mother, so it would be "smoking gun" evidence that the OT considers the fetus as worthy of legal protection equal to the protection given to the mother from at least the time that the woman knows she's pregnant to when she gives birth. This I think is why many evangelicals defend this view so stringently, even if it's not certainly correct.
3. If the LXX is correct, there's a stage of development before which the fetus is not given equal protection to the mother. The fetus must become "fully formed" before that status applies. This has been variously interpreted, but some believe it refers to the "quickening," when the mother first feels the baby move.
4. If the NRSVue is correct then at no point during the mother's pregnancy is the fetus given equal protection to the mother. However, this does not mean that no protections are given. The loss of the fetus because of brawling is still harm to the child that must be remedied.

Those believers that consider themselves "pro-choice" frequently opt for options 3 or 4, but if either of those turn out to be correct, this does not eliminate "pro-life" positions from consideration. It would indicate that punishments for abortion should be of a lesser severity than those that would be indicated by negligent homicide of either a "fully formed" fetus (option 3) or a born individual (option 4). Alter's translation leaves many of these options open, allowing interpreters to use the rest of Scripture to evaluate these options.

References:

[1] Holladay, William Lee, and Ludwig Köhler. A Concise Hebrew and Aramaic Lexicon of the Old Testament. Leiden: Brill, 2000.

[2] Alter, Robert. The Five Books of Moses: A Translation With Commentary. New York: W. W. Norton & Company, 2004.

[3] McDaniel, Thomas F. The Septuagint Has the Correct Translation of Exodus 21:22-23. Palmer Theological Seminary, 2012.

[4] Tsedaka, B. Ed. 2013. The Israelite Samaritan Version of the Torah: First English Translation Compared with the Masoretic Version. (B. Tsedaka, Trans.) Grand Rapids, MI: William B. Eerdmans Publishing Company.
[5] Hallo, William W., and K. Lawson Younger, eds. The Context of Scripture, Volume 2: Monumental Inscriptions from the Biblical World. Vol. 2 of The Context of Scripture. Leiden: Brill, 2000.

[6] MAL A§53 punishes a woman deciding to abort her own fetus with severe brutality, indicating to me that Assyrian law valued the life of a male fetus over the lives of women. "If a woman aborts her fetus by her own action and they then prove the charges against her and find her guilty, they shall impale her, they shall not bury her. If she dies as a result of aborting her fetus, they shall impale her, they shall not bury her."

[7] U. Cassuto. A Commentary on the Book of Exodus. Jerusalem: Magnes Press, 1983.