Some 2k proponents limit capital punishment to murder, by appealing to the “common grace” covenant (as they classify it) which God made with Noah (e.g. Gen 9:5-6). But there are several basic problems with this argument:
i) The justification is grounded in their appeal to Scripture. Indeed, to the OT. To Klinean covenant theology. But in that case, they believe the Bible ought to norm public policy. Ought to norm modern statecraft and modern penology.
So it’s no longer a question of whether the Bible ought to norm the law for believers and unbeliever alike, but where in the Bible we should look to norm the law for believers and unbelievers alike.
Yet proponents of 2k typically invoke general revelation rather than special revelation as the common source and standard of morality and law for believers and unbelievers alike.
So there seems to be a central contradiction in appealing to the Biblical witness to God’s covenant with Noah, even if we accept their idiosyncratic interpretation of the Noachic covenant.
ii) The Noachic authorization for the death penalty carries over into the Mosaic covenant (Num 35; Exod 21:18).
Yet 2k proponents say the Mosaic covenant was abrogated by the new covenant. But if there’s carryover between the Noachic covenant and the Mosaic covenant, then the provisions of the Mosaic covenant can’t be treated as if they were uniquely cultic or theocratic. For, by Klinean lights, the Noachic covenant is a common grace covenant. But if key elements of the Noachic covenant carry over into the Mosaic covenant, then the Mosaic covenant also exemplifies common grace as well as special grace. In that event, it’s not a purely timebound arrangement. Rather, it instantiates certain timeless principles. So it can’t be treated as if it were an all-or-nothing arrangement.
iii)By the same token, the injunction concerning capital punishment in Gen 9:5-6 comes on the heels of the injunction concerning exsanguination (vv3-4). Yet exsanguination also carries over into the Mosaic law (Lev 17; Deut 12).
Therefore, you can’t draw a cut-and-dried dichotomy between the “common grace” covenant that God made with Noah and the (allegedly) typological covenant that God made with Moses. Put another way, you can’t say the Noachic covenant represents culture while the Mosaic covenant represents cult. For there’s overlap.
iv) Indeed, exsanguination, as well as the kosher laws generally, are something we’d ordinarily association with the ceremonial law rather than the moral law. With cultic holiness. Ritual purity. So how can that be present in a “common grace” covenant (i.e. the Noachic covenant) as well as the Mosaic covenant?
v) Moreover, capital punishment is not an isolated penalty in Biblical justice. Rather, it’s a special case of a broader principle–the lex talionis. An eye-for-an-eye. Hence, capital punishment can’t be segregated from Biblical justice in general.
vi) Ironically, this 2k argument is also at odds with Klinean hermeneutics. According to Kline:
The counterarguments often drawn from statements concerning man’s diet in Genesis 1:29 and 9:3 are not cogent. In Genesis 1:29 the explicit assignment of the plant world to man for food is not restrictive, as though that were the only kind of food permitted him…These considerations show how unwarranted is the assumption that the silence of this passage concerning man’s use of animals flesh as food must be intended as a prohibition as such.
The authorization in Genesis 9:6a for this ultimate prerogative of man’s common grace endowment with dominion is accompanied by the statement that he is the image of God, the likeness and vicegerent of him who exercises absolute dominion over all (v.6b). In Genesis 1:27-30 man’s identity as image of God is stated first (v27a) and then the significance of that is expounded in terms of man’s investment with the God-like glory of dominion (vv28-30). In Genesis 9:2-6 the dominion is set forth first (vv2-6a) and then man’s image-of-God status is cited at the close as the explanation of his magisterial appointment (v6b).
The subject of man’s dominion over animals (9:2) leads to the topic of animals serving as food (9:3), and that to the prohibition of eating the life-blood (9:4), which leads to the matter of shedding man’s lifeblood and the judicial response to (murder (9:5,6).
Kingdom Prologue (2000), 54-55; 253, 254.
a) Notice, on this analysis, that the Noachic authorization for capital punishment is a part of literary unit which also includes the command regarding carnivory, animal sacrifice, and exsanguination.
b) And in that regard, Kline objects to the argument from silence. He points out that this command is not proscriptive.
c) Yet when some 2k proponents appeal to Gen 9 to confine capital punishment to murder, they are arguing from silence. They are treating the command as if it thereby restricted the death penalty to murder. But, of course, the actual terms of the command aren’t that exclusive. They don’t preclude the death penalty for other offenses. Rather, they don’t even speak to that issue. They don’t assign a penalty (capital or otherwise) to other offenses because they don’t address other offenses.